What is the religious belief defence? What to know about proposed change to Canada's hate crime law

Federal politics has been abuzz since the National Post’s scoop that the governing Liberals have struck a deal with the Bloc Québécois to pass their hate crime reform bill by eliminating the special defence of religious belief to the criminal charge of wilful promotion of hate. Civil society and religious groups have expressed concern that the move puts the faithful at legal risk and could chill religious discourse with the threat of prosecution. The National Post explains the religious defence, where it came from, how it has been used, and how it guides controversial prosecutorial decisions about criminal hate speech.

To publicly and wilfully communicate statements that promote hatred of an identifiable group, according to Section 319(2) of the Criminal Code of Canada, is one of the few ways a Canadian can be sentenced to jail, up to two years, directly over what they write or say.

But there are four absolute defences spelled out in the law. No one can be convicted of wilfully promoting hatred or antisemitism, for example, “if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text.”

This is what the new hate crime bill proposes to remove. The other defences include the truth of the statements in question, reasonable belief in their truth and their relevance to public interest, and pointing out hate speech for the purpose of removal.

These are the boundaries of the wilful promotion of hatred, which is rarely prosecuted, but remains one of the most politically controversial laws in Canada.

It was an original part of Canada’s hate law regime, which also prohibits hate propaganda and advocating genocide. It was developed in the post-war heyday of human rights legislation, based on the work of a special committee on hate propaganda, and the four defences were debated in Parliament before the law was given royal assent in 1970. It has survived the transition from an era of communicating by print and telephone to the era of the internet. It has been challenged and tested many times. The very definition of hate has also been repeatedly challenged, and the new Liberal amendment also proposes to add a definition of hate to the Criminal Code, using the language of Supreme Court precedents. Hate is not simple dislike of a group of people, or disapproval, or causing them offence or humiliation. The “hate” in Canadian hate crimes is “detestation and vilification.” It used to include “calumny,” which means malicious misrepresentation, but that has fallen out of favour as an archaic word.

It doesn’t look like it. It will certainly have been considered in advance of a charge, and if it ever looked like a plausible defence, it might have motivated decisions not to prosecute. But it does not appear to have been successfully wielded in the courtroom.

Richard Moon, a law professor with a deep expertise on hate laws and religious freedoms, told The Canadian Press he was unaware of any example of the defence winning the day in court.

Writing in the National Post , lawyer Christine Van Geyn said she went looking for cases and all she could find was one failed use. In that case, the judge put it bluntly: “It will be a rare case where one who intends to promote hatred will be found to be acting in good faith, or upon honest belief.”

Wilful promotion of hate is not a common prosecution to begin with, with barely a few dozen since the 1990s. Of those, only about one in four end in convictions.

The best known was of the late Jim Keegstra of Alberta, a high school teacher and small town mayor who promoted antisemitic conspiracy theories to his students, and whose conviction of this crime was upheld by the Supreme Court in 1990. Religion factored in his motivation. Keegstra once told a journalist: “I got onto this through the scripture. Here was a people who denied everything about Christ, yet they were called the chosen people. That is a contradiction.”

The first-ever case was the 1979 failed prosecution of Robert Buzzanga and Jean Wilfred Durocher, two French Canadians who distributed anti-French flyers in a false-flag effort to rouse anti-English sentiment in Ontario. They were acquitted on appeal in a ruling that held “wilful” to mean something close to “intentional,” in contrast to other forms of guilty knowledge such as negligence or recklessness.

Since then, notable cases include David Ahenakew, an Indigenous leader who was tried twice but ultimately cleared over antisemitic comments to a reporter; and the internet cases of Keith Francis William Noble of British Columbia, sentenced to four months in 2008 for promoting hatred of Blacks, Jews and gays; Reinhard Gustav Mueller of Alberta, sentenced to 16 months in 2004 for promoting hatred of Jews; and James Sears of Ontario, whose targets were Jews and women, sentenced to one year in 2019.

That was the prosecution of Mark Harding of Toronto, who was convicted in 1998 under 319(2) for distributing pamphlets and phone messages that described all Muslims as violent, cruel, terrorists, and bent on world domination. He got a conditional sentence and probation. His trial judge decided that the religion defence must not be a “Trojan horse” to conceal hate speech within religious speech. An appeal judge agreed, adding that “merely because some of the appellant’s statements were legitimate expressions of religious belief, his other statements are not shielded from scrutiny.” Harding, whose legal appeals ultimately failed, was what the Ontario Court of Appeal called “a self-described Christian pastor.”

“He was entitled to his opinions on religious subjects, and it is not a crime in Canada to proclaim that a particular religion is the only true religion and that another religion with conflicting beliefs is wrong,” the trial judge wrote. “However, the accused’s communications did not just contain religious opinions about the falseness of Islam. They also contained alarming and false allegations about the adherents of Islam calculated to arouse fear and hatred of them in all non-Muslim people. Although expression of religious opinion is strongly protected, this protection cannot be extended to shield communications intended to promote hatred simply because they are contained in the same message and the one is used to bolster the other.”

The Opposition Conservatives have called the amendment an attack on religious freedom. Other criticisms are that it is vague and could chill legitimate discourse and protest. A key fear is that religious people may feel hesitant or uncertain about expressing religious beliefs for fear they will fall foul of this law. Catholic Bishops, for example, this week wrote a letter seeking reassurance from Prime Minister Mark Carney that expressing good faith religious opinions will not be grounds for hate speech prosecution. That fear is particularly acute in light of the proposed Liberal amendment to remove the requirement that criminal hate speech prosecutions have the explicit sign-off of the provincial attorney general. The requirement adds a layer of political accountability to this most controversial type of criminal prosecution. As it stands now, if a provincial Crown wanted to lay this charge, the governing party had to at least wear the effort and openly endorse it. That requirement puts hate crimes in the unique subset of crimes that require an attorney general’s approval, curiously including abuse of public office and any crime committed on the International Space Station.

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