Are Canadians free to hold and express their religious beliefs? May they speak and act upon those beliefs without fear that they may face charges of hatred? Many Canadians now fear the answer will soon be no, and Bill C-9, the “Combatting Hate Act,” is the reason why.
The main contention of the bill’s critics is that it proposes removal of a clause preventing “good faith” religious views from being prosecuted for inciting or promoting “hatred”: Section 319(3)(b) of the Criminal Code of Canada is to be eliminated. If the critics are correct, certain religious views could become illegal via this amendment — but which ones remain unclear.
This is predominantly due to the bill’s definition of hatred: “the emotion that involves detestation or vilification and that is stronger than disdain or dislike.” How this will affect convictions is not clarified. This definition invites wide interpretive latitude — an instability that can have a chilling effect on Canadians expressing their beliefs.
Objections to the amendment are further exacerbated by why Bill C-9 was drafted in the first place: to protect those of religious beliefs from discrimination, hatred or obstruction. The problem with this pretext is that the bill’s reworking of Section 319 merely reiterates a variety of protections already instantiated in the Criminal Code against the incitement and promotion of hatred, presently defined not as an emotional state but as specifiable types of action and intention. The law, as it stands, is deficient not in legislation but enforcement.
This has led several critics to dismiss the offered pretext and assume that the other amendments are the true impetus for the bill. If seeking a more charitable interpretation, one could argue that Bill C-9 is a piece of performative legislation meant to reaffirm the government’s commitment to protecting religious believers — but this again brings scrutiny on the removal of Section 319(3)(b).
Despite these problems and widespread dissent from a variety of religious groups, Bill C-9 is set to pass a third reading in the House and move to the Senate by the end of this month. The Upper House could still amend the bill, but its passage through the Lower House is a worry to many.
Is it, therefore, time for Canadians of religious conviction to sound the alarms?
Maybe. But before concurring that the sky is falling, Canadians of religious conviction should recognize something else: Bill C-9 is not merely controversial legislation. It is a test of Canada’s constitutional order.
This should inspire neither hope nor despair — it suggests both. Under the Canadian Charter of Rights and Freedoms, Canadians have a right to “freedom of conscience and religion” under section 2(a). Yet anyone familiar with the Supreme Court’s jurisprudence on this guarantee knows how contested it remains. For more than four decades, scholars and judges have debated the scope of religious freedom in Canadian law. Bill C-9 may force that debate into sharper focus.
Should the bill pass, the decisive question will shift from Parliament to the judiciary. Section 2(a) has been interpreted broadly by the Supreme Court. In one of its most definitional decisions, Syndicat Northcrest v. Amselem, the court held that the Charter protects “sincerely” held religious beliefs — even when they are contested or not formally mandated by religious authorities.
Actions arising from religious conviction may therefore receive constitutional protection if such beliefs are deemed sincere. Canadians should expect any attempt to prosecute a religiously motivated action, interpreted as hateful under Bill C-9, to then invite a constitutional challenge.
Yet the Charter does not end with section 2(a). Governments may still justify limits on the rights protected within the Charter by reference to section 1, if those limits can be shown to be reasonable in a free and democratic society. The real question, then, is whether restrictions on religious expression could survive such scrutiny — and this is a question unanswerable in the abstract.
If courts conclude that they can, Canadians will have learned something far more consequential than the fate of a single piece of legislation: The policing of certain beliefs may be constitutionally permissible. Until such a case is tested in court, the true standing of this law will remain uncertain.
Therefore, reframing the debate in constitutional terms clarifies two things: Religiously observant Canadians have not necessarily lost the fight. The stakes may be far greater than many have initially realized.
Canada is approaching an inflection point: What does freedom of religion mean in a constitutional democracy — and what may Canadians of religious conviction still believe without fear of prosecution?
