I'll repeat:
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.”
How often is the crime itself charged?
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—
We mentioned the Keegstra decision numerous times during our study on Bill C-9.
—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.
What happened in the case where the religious defence failed?
That was the prosecution of Mark Harding of Toronto, who was convicted in 1998 under 319(2) [of the code] 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.”
What is the concern about eliminating the religious defence?
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.
I intend on reading the exact message—the exact letter—that was sent to Prime Minister Carney into the record during another intervention later on, but the quote goes on:
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's what I intend on reading out in relation to that particular article.
At this time, I wish to move a subamendment to my colleague Mr. Lawton's amendment. I move that we replace “the freedom of expression or the freedom of religion” with “(a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.”
I wish to move on to a vote, as this is a dilatory motion.
