I am doing that. I actually worked hard on these remarks, Mr. Chair. I spent a good amount of time researching this, and I think if you look at the way our courts consider the constitutionality of various provisions in our legislative history, it is not unusual to have remarks like these.
Look at the Cowichan Tribes decision, which was just issued. It was 800 pages and had hundreds of pages of history. If my honourable colleague doesn't want to hear about that, then I'm sorry, but it is actually part of our constitutional litigation system to recognize that history.
I'll try to remember where I left off.
The arrangements that shaped Quebec society continued even after Britain took control of New France in 1763. The Quebec Act of 1774 protected Catholic rights as a means of ensuring political stability. This is where we continue to see this recognition of practical necessity, with a unique flavour and character to our laws as they developed.
As Canada developed, waves of settlers brought diverse faith traditions. There were Protestants, Catholics, Jews, Muslims, Hindus and other communities that came here and lived side by side, sometimes peacefully and sometimes, of course, in tension.
In the 19th century, these arrangements came under increased scrutiny as our populations diversified. We've had to find ways to live together—secular and religious, religious and religious—since the beginning of our constitutional grand bargain, to coin a phrase.
When Confederation was established in 1867, the question of the separation of church and state was already very complicated. There was, of course, the protection, in our Constitution Act, of denominational school rights that existed at the time. This was another political compromise that preserved the peace between various communities. That spirit of compromise has been fundamental to our communities.
In the decades that followed, several events continued to shape Canada's approach to this issue. Of course, as my colleagues from Manitoba know, one of the most important was in fact the Manitoba schools question in the 1890s. Manitoba ended public funding for Catholic schools, which sparked a national debate—not unlike this one, by the way—that involved Parliament, the courts and the public. Eventually, Manitoba's decision stood in that case, and there was a shift towards secular public schooling, which became more pronounced across the country.
That debate showed that Canadians were increasingly accepting of the idea that public institutions should not be tied to the doctrine of a particular faith, but it did not do away with the idea that faiths and sincerely held religious beliefs needed to be protected, even in circumstances where we might vehemently disagree with them.
By the middle of the 20th century, our social landscape had changed significantly, and the hospitals, universities and social services that had once been governed by religious institutions became integrated into publicly funded systems. That laid the groundwork for the modern understanding of the separation of church and state, which means a government—and this is where I come back to this bill and this amendment—that neither imposes religious doctrine nor interferes—and this part is very important—in religious practice.
This is foundational. This conversation we have had over the decades in this country is fundamental to our being a society that respects diverse beliefs while protecting individual rights.
The adoption of the charter in 1982 brought constitutional clarity to this concept. Section 2(a) protects freedom of conscience and religion. Section 2(b) protects freedom of expression. Section 15 requires equality before the law. Together, these provisions codified what had already been developing for over a century, which was the idea that the state must remain neutral in matters of faith. It must protect the right to believe, the right not to believe and the right to express beliefs peacefully.
One of the most painful reminders of the danger of church and state.... When Parliament enacted section 319, which prohibits the wilful promotion of hatred, it had to navigate the same delicate balance that had shaped our country's development and that I've been expounding on and explaining through my remarks.
On one hand, the state has a duty to protect vulnerable groups from hate propaganda. On the other hand, Canadians have to be free to express their religious beliefs, teach their doctrines, read their scriptures and engage in theoretical debate.
Parliament, at the time, did not want clergy or people of faith to fear prosecution for simply expressing traditional beliefs, no matter how outdated or how wrong we might think they are. That's where the defences that we're discussing came from. The solution to this was the inclusion of several defences, including the one that has become known as the defence of sincerely held religious beliefs.
This defence protects statements made in good faith on a religious subject or based on religious opinion. The key words there are “in good faith”. The defence does not protect malice. It does not protect hostility or efforts to encourage hatred. It protects genuine attempts to express or explain religious doctrine.
That, I feel, has been lost in this debate. I feel there has been an effort—there has been some encouragement from the Bloc, from my Liberal friends across the aisle and, in this case, mostly across the table—to make it as if the removal of this defence is necessary to protect vulnerable groups. The words “in good faith” that are embedded in this defence actually do that job for us. The defence fits in that way squarely within Canada's unique and long history of the separation of church and state because a neutral state does not police doctrine. A neutral state does not decide which theological views are permissible. A neutral state does not suppress good faith religious teaching, however distasteful it may be. To quote a phrase that one of my rabbinical friends has used, we all have our beliefs, but none of us has met God yet, so it's hard to know who is actually right.
At the same time, a neutral state can and does have an obligation to address the deliberate and harmful promotion of hatred. The Criminal Code, as it exists today, draws that line carefully. I would submit to you that it behooves us as parliamentarians not to erase that line recklessly or through these provisions, because when the charter arrived, the courts had already reviewed these provisions.
In the Keegstra case of 1990, which I was actually involved in as a high school student, the Supreme Court upheld the constitutionality of hate propaganda laws, but emphasized that the religious defence was an important safeguard. The court pointed to the requirement that prosecutors prove wilfulness and the availability of good faith religious expression as evidence that Parliament had respected both freedom of religion and the need to combat hate speech.
The balance was tested again when Parliament decided to expand the list of protected groups. In 2004, when sexual orientation was added, Parliament examined whether the religious defence would continue to offer adequate protection. Members across the political spectrum at that time acknowledged that people of faith must remain free to express their beliefs without fear of criminal prosecution. The same debate resurfaced in 2017 when gender identity and gender expression were added. In each instance, Parliament concluded that the Criminal Code's existing safeguards were strong, principled and consistent with Canada's constitutional tradition.
The concerns we are discussing today in this committee are echoed in recent reporting and in the principles of free speech and freedom of religion we held dear when I was a human rights advocate many years ago, one who was involved in all three of the historical references to litigation that I just talked about. As the Toronto Star noted this week, even some of the strongest advocates for equality and social justice have historically defended both freedom of expression and freedom of speech as universal safeguards.
I'm reminded of this, because Gilles Marchildon was quoted in that article. He, of course, is a former executive director of Egale and my mentor in my human rights work. He reminded Canadians that “freedom for all means freedom for each”. He said this while defending the expressive rights of an Alberta pastor, whose views he described at the time as “[m]isguided and vitriolic”.
I remember having long conversations about that when it was going on. What mattered to Gilles was not the content of the speech but the principle of it. The idea was this: If the state could silence one unpopular voice, who might be next? By the way, this was before people took to social media to say that this or that person should be arrested because they quoted this or that thing. The fact that the person might not be arrested didn't mean we didn't get a proliferation of defamation suits, human rights suits and all kinds of litigation around these concepts. Gilles's point has lost none of its force today, because protecting the rights of people we disagree with is, in fact, still how we protect the rights of everyone.
The article goes on to warn, as I have in these remarks, that Bill C-9 risks abandoning the careful constitutional balance we have built over decades, which I have explained in some detail this evening. The bill would expand police authority to lay hate-related charges based on a far broader and more subjective definition of hate. Depending on how the amendments to various definitions in here work, it could get quite broad.
As we know, there are other countries, right now, that are really struggling with this. Legal experts and civil liberties groups rightly caution that this proposal appears less like a tool for protecting marginalized groups and more like a broad expansion of police and state power, with a high risk of misuse. Critics from across the political spectrum fear the legislation would chill legitimate dissent, restrict peaceful protests near religious institutions and place expressive freedom in the hands of law enforcement officers, who are already struggling—and will continue to struggle—to distinguish political slogans from criminal acts.
This approach undermines the very compromises that our courts and Parliament have worked to maintain. Instead of strengthening social cohesion, the bill risks deepening division by criminalizing speech rather than confronting hatred through democratic debate, education and community resilience. Today, when we forget our history in this country or don't want to listen to it, and when we want to go for the sound bite and the social media thing, it makes it difficult.
I'm working towards the end of my remarks, but I want to emphasize that the religious defence has never been a blank cheque in this country. Courts have been very clear that good faith has always meant sincerity. It has always meant that the purpose of the expression has to be to explain, interpret or discuss a religious subject, not demean or target an identifiable group.
I've been an adjudicator myself, and I've been in a position where I've been able to mentor other adjudicators and learn from them. I can tell you that judges do examine tone, context and intent. They look at, in these kinds of circumstances, whether the speaker is genuinely engaged in religious expression or attempting to use religion as a shield for conduct that the criminal law seeks to prohibit. It reinforces the balance that Parliament seeks to maintain.
We have a system that's working. If we step back and consider this broad historical arc, we can see how consistent Canada's approach has been up to this point.
From indigenous traditions that recognize personal conscience to colonial debates over denominational schools and from charter jurisprudence to modern discussions of hate propaganda, the underlying principle of this debate has always been the same. It has been that the state has to remain neutral. It must not impose belief, but it also cannot suppress belief that is expressed in good faith. At the same time, we have managed—at least up until recently, when enforcement has become a real problem—to protect our citizens from hate and discrimination.
That defence of sincerely held religious belief exists because Parliament, the very institution we are part of and are expressing ourselves through today at committee, recognized that hate propaganda laws, which serve an important purpose, must not inadvertently undermine the freedoms that define our democracy.
The separation of church and state is not traditionally listed, of course, as one of the principles of natural justice, which, in the common law, is focused on procedural fairness, but natural justice addresses how decisions must be made, not how the institutions of the state must be structured. Its core principles are the right to be heard and the right to an impartial, unbiased decision-maker. These rules exist to ensure that governments act fairly, transparently and without favour and don't prescribe a particular constitutional arrangement between religious institutions and civil authority. It is very important that we keep it that way.
As we continue to work in committee, it's worth remembering that Parliament has revisited this issue many times and that the legacy of the separation of church and state in Canada is actually the foundation upon which the religious defence in section 319 rests. It is a legacy of balance, a legacy of restraint and respect for pluralism, and a legacy that takes into account the rich history of this country and helps us understand why the defence was created, why it has been preserved and why it remains an essential part of the Criminal Code.
It also helps to explain why I have received so many emails, so many phone calls and so many texts and other messages about this bill and these provisions. People are genuinely offended that the Bloc and the Liberals have made this deal to remove protection for religious freedoms in this context. I urge members of this committee to heed their sentiments.
Thank you, Chair. I am done.
