The Conundrum of the Religious Defence to Hate Expression

INTRODUCTION

The relationship between “hate expression” and religion and religious belief in Canada has always been a tangled one: the source of hatred can be grounded in religious belief and hatred can be directed against individuals or a group on the basis of their religion.

The current hate provisions in the Criminal Code of Canada (“the Code”) acknowledge this dual role of religion in both its offences and defences. The proposed amendments to the Code, Bill C-69, the Combatting Hate Act, add offences and defences that bear a distinct resemblance to activities that have occurred across Canada since Hamas’s brutal attack on Israel on October 7, 2023 and the resulting devastating war in Gaza. (Bill C-9’s full title is An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places)).

In one respect, the legal role of religion in relation to hate expression appears to be about to change, however. As the price of their support for Bill C-9, the Bloc Québécois (BQ) is demanding that the defence of religious belief be repealed and the Liberal Government has agreed. (See National Post, “Liberal deal with Bloc means hate-speech laws will lose exemption for ‘sincerely held’ religious belief” (December 1, 2025)).

Currently, the Code requires the approval of the attorney-general for a prosecution under the hate expression provisions of the Code. Section 3(3) of Bill C-9 repeals that requirement. To obtain the BQ’s support, the Government has agreed to remove that repeal from Bill C-9. (As I write, the status of the BQ and Liberal agreement is in tenuous: National Post, “Justice minister breaks silence on deal with Bloc to remove religious exemption in hate speech laws”, December 9, 2025).

In this post, I explore the implications of the religious belief defence and of its repeal.

MAJOR OFFENCES AND DEFENCES RELATING TO “HATE PROPAGANDA”

The major, although not only, hate expression provisions are headed “hate propaganda”; however, the expressions and conduct constituting hate propaganda are more commonly referred to it as “hate expression” which is the term I use here.

For a concise description of the current hate provisions and historical developments leading to them, see Ndegwa and McDonald, Hate Crimes in Canada.

In the 1990 Supreme Court of Canada (“SCC”) decision R. v. Keegstra, then Chief Justice Dickson considered the history of efforts to address what we now think of as hate propaganda or hate expression in Canada and elsewhere starting in 1275 in England and leading to sections 318 and 319 of the Criminal Code.

Keegstra concerned whether sections 319(2) and 319(3)(a) of the Code were constitutional, including whether section 319(2) (“wilful promotion of hatred”) infringed section 2(b) of the Canadian Charter of Rights and Freedoms (“the Charter”), the guarantee of freedom of expression, and whether section 319(3)(a) infringed the right to be presumed innocent (requiring the individual to establish the statements are true, it involves a reverse onus). The Court held that they were.

In this post, I refer only to the most significant provisions of both the Code and Bill C-9 relating to hate expression.

Current Offences

Section 318 prohibits advocating genocide against an identifiable group, that is the killing of the group’s members or “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction”.

Section 319 bans the public promotion of hatred likely to lead to a breach of the peace (s.319(1)) (emphasis added) and wilful promotion of hatred against an identifiable group other than in a private conversation (s.319(2)). “Public place” “includes any place to which the public have access as of right or by invitation, express or implied” (s.319(7)).

Section 430(4.1) of the Code prohibits mischief committed against property used “primarily” for religious worship, as well as other property used by an identifiable group where the mischief is committed out of “bias, prejudice or hate” against an identifiable group (s.430(4.101) identifies the type of property affected). This does not include being near these places only for the purpose of providing or obtaining information. (Providing information presumably does not include statements, written or verbal, that would be consistent with sections 318 or 319 of the Code.)

(An identifiable group in these provisions refers to “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability” (s.319(2), s.430(4.1)).

A relatively recent provision (added in June 2022), prohibits the wilful promotion of antisemitism by condoning, denying or downplaying the Holocaust [my emphasis]) (s.319(2.1). “Holocaust” is very specifically defined under section 319(7) as “the planned and deliberate state-sponsored persecution and annihilation of European Jewry by the Nazis and their collaborators from 1933 to 1945”.

Current Defences

Someone charged with section 319 offences can defend themselves on several grounds, including if they can establish their communications are true; if the communications are in the public interest (and the individual reasonably believed the statements are true); and “if, in good faith, they intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada” (subsection 319(3)(a),(c) and (d)).

Under subsection 319(3.1), section 319(3)(d) is modified to read it is also a defence if the purpose was for removal of matters producing or tending to produce “feelings of antisemitism toward Jews”.

The Religious Belief Defence

For our purposes, the defence that is often somewhat inaccurately termed “the religious exemption” is that no person shall be convicted under section 319(2) or section 319 (2.1)“if, in good faith, they 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” (section 319(3)(b) and section 319(3.1).

To be clear, the religious belief defence does not apply to all hate expression offences. It does not apply to section 318(1), which prohibits genocide. It does apply to protect hate expression prohibited under section 319(1) (“communicating statements in any public place, … where such incitement is likely to lead to a breach of the peace”); section 319(2) (“communicating statements, other than in private conversation, wilfully promotes hatred”); and section 319(2.1) (“communicating statements, other than in private conversation, wilfully promotes antisemitism by condoning, denying or downplaying the Holocaust”).

 

Bill C-9 Offences and Defences

Section 319 of the Code has been expanded by a prohibition against wilfully promoting hatred against “any identifiable group” by displaying in public a symbol “principally” connected to a terrorist group or a Nazi swastika (including a symbol that could be confused with a terrorist symbol or swastika) (prospective section 319(2.2)) Note that the placing of this new offence aligns it with the current offence in section 319(2.1): “the wilful promotion of antisemitism by condoning, denying or downplaying the Holocaust”, although it is not limited to symbols expressing hatred towards Jews.

Prospective section 319(3.2) provides a defence related to the new offence of displaying a symbol: “if the display of the symbol was for a legitimate purpose, including a legitimate purpose related to journalism, religion, education or art, that is not contrary to the public interest”; or “if, in good faith, the display of the symbol was intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada”.

Since these new provisions will be integrated into section 319, they will therefore be subject to the religious defence.

Bill C-9 adds 423.3(1) to the Code, making it an offence to act with the intent to cause someone to be afraid to access the property described in s.430, including buildings used primarily for religious purposes. It would also be an offence to intentionally obstruct or impede someone’s lawful access to these types of properties. These offences do not include being near a building in order to obtain or communicate information (taking the form of a defence).

As it stands, Bill C-9 repeals the requirement that the attorney general approve a prosecution under section 318 or 319; the government maintained that this would enable charges to proceed more expeditiously. However, as indicated above, Bill C-9 may be amended to eliminate the repeal.

IT’S NOT EASY TO ESTABLISH THAT EXPRESSION CONSTITUTES HATRED

Before considering the religious defence further, it is crucial to appreciate how difficult it is to establish that statements and actions constitute hate expression.

The current provisions in the Criminal Code do not define “hate expression” or “hate propaganda” (the heading under which the provisions appear). Supreme Court jurisprudence, however, has consistently defined hate expression within narrow parameters. And Bill C-9 has adopted that approach in providing a definition in prospective section 319(7) that will apply to the section 319 offences.

Bill C-9 defines “hatred” as “the emotion that involves detestation or vilification and that is stronger than disdain or dislike” (to be added to section 319(7) of the Code). At the same time, it seeks to prevent complaints based on hurt feelings or feeling offended: “the commission of an offence under this Act or any other Act of Parliament is not, for the purposes of this section, motivated by hatred based on any of the factors mentioned in subsection (1) solely because it discredits, humiliates, hurts or offends”. In short, there is a narrow range of conduct or speech that would constitute “hatred” and thus be criminalized.

As indicated, this definition is drawn from the Supreme Court jurisprudence under sections 318 and 319 of the Criminal Code, particularly Keegstra, and under human rights legislation, notably Canada (Human Rights Commission) v. Taylor (1990), Ross v. New Brunswick School District No. 15 (1996) and Saskatchewan (Human Rights Commission) v. Whatcott (2013), among others.

As then Chief Justice Dickson stated in Keegstra, “the term “hatred” connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation.” He continued,

Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.

Probably the most significant aspect of the SCC’s interpretation of the hate propaganda provisions is that they address the impact of expression, not the content. This is because of the broad meaning given to freedom of expression under section 2(b) of the Charter.

The SCC has rejected the notion that hate expression is analogous to violence or threats of violence. Since “invidious and obnoxious” speech conveys meaning and is not physically violent or threatening violence, hate expression prohibited by sections 318 and 319 and in Bill C-9 is therefore protected by section 2(b) of the Charter, therefore most of the Charter analysis has been about whether prohibitions are justified under section 1.

However, although hate expression is protected as a “right”, it may face a higher barrier under the section 1 analysis than other forms of expression, another indication of how seriously the SCC treats this form of expression.

As Dickson CJ explained in Keegstra,

I am of the opinion that hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self-development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. While I cannot conclude that hate propaganda deserves only marginal protection under the s. 1 analysis, I can take cognizance of the fact that limitations upon hate propaganda are directed at a special category of expression which strays some distance from the spirit of s. 2(b), and hence conclude that “restrictions on expression of this kind might be easier to justify than other infringements of s. 2(b)” . . . (citation omitted)

In Whatcott, a decision under the Saskatchewan human rights legislation, Rothstein J. stated for the Court,

Hate speech legislation is not aimed at discouraging repugnant or offensive ideas. It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups in society. It only restricts the use of expression exposing them to hatred as a part of that debate. It does not target the ideas, but their mode of expression in public and the effect that this mode of expression may have. (Whatcott, para. 51)

The defences under section 319(3) narrow the scope of hate expression even further than the strong language used to define the term:

the three defences which include elements of good faith or honest belief — namely, s. 319(3)(b), (c) and (d) — would seem to operate to negate directly the mens rea in the offence, for only rarely will one who intends to promote hatred be acting in good faith or upon honest belief. These defences are hence intended to aid in making the scope of the wilful promotion of hatred more explicit; individuals engaging in the type of expression described are thus given a strong signal that their activity will not be swept into the ambit of the offence. … To the extent that s. 319(3) provides justification for the accused who would otherwise fall within the parameters of the offence of wilfully promoting hatred, it reflects a commitment to the idea that an individual’s freedom of expression will not be curtailed in borderline cases. (Keegstra, Dickson CJ)

As for section 319(3)(a), Dickson CJ stated that it is irrelevant whether the “statements of truth” were made with the intention of promoting hatred or not,

[e]xcusing the accused who intentionally promotes hatred through the communication of truthful statements is thus a circumspect measure associated with the importance attributed to truth — and hence to free expression — in our society.(Keegstra)

A paper prepared for the RCMP provides some sense of the kind of statements or activities that may be considered hate expression by listing and contrasting examples of those that constitute hate expression and those that do not (see Hate Crimes and Incidents). Hate crimes are those

• describing group members as animals, subhuman or genetically inferior
• suggesting group members are behind a conspiracy to gain control by plotting to destroy western civilization
• denying, minimizing or celebrating past persecution or tragedies that happened to group members
• labeling group members as child abusers, pedophiles or criminals who prey on children
• blaming group members for problems like crime and disease
• calling group members liars, cheats, criminals or any other term meant to provoke a strong reaction

(Hate Crimes and Incidents in Canada, p. 48, citing B.C.’s Office of the Human Rights Commissioner’s Hate Speech Q&A, April 2021)

The paper explains,

Hate-motivated incidents involve the same characteristics as hate crimes but do not meet the threshold to be classified as criminal under Canada’s Criminal Code. In other words, hate-motivated incidents are non-criminal actions or behaviours that are motivated by hate against an identifiable individual or group. Examples of hate-motivated incidents include:

• sharing discriminatory material in person or posting it on the internet
• intimidating a person on social media because of their religion
• using racist slurs or epithets
• insulting someone based on their national or ethnic origin
• making offensive jokes about a person’s skin color or sexual orientation

(Hate crimes and Incidents in Canada, p.4)

(Other police forces also make this distinction: see, for example, Toronto Police, TPS Crime Statistics – Hate Crimes.

The line between hate-motivated crimes and hate-motivated incidents might easily be blurred, were it not for the meaning ascribed to hate crimes in the SCC jurisprudence and the definition in Bill C-9. This speaks to the benefit of requiring the approval of the attorney general for a prosecution under sections 318 and 319 of the Criminal Code.

The SCC jurisprudence and the definition in Bill C-9 are to be contrasted with the broad meaning in The United Nations Strategy and Plan of Action on Hate Speech (“United Nations Strategy”), which defines hate speech as “[a]ny kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, gender or other identity factor.” (United Nations Strategy, p.2)

International law, the document goes on, does not prohibit hate speech itself but “incitement” Rather than prohibiting hate speech as such, international law prohibits “incitement”, which “explicitly and deliberately aims at triggering discrimination, hostility and violence, which may also lead to or include terrorism or atrocity crimes.” Indeed, “[h]ate speech that does not reach the threshold of incitement is not something that international law requires States to prohibit.” (United Nations Strategy, p.2)

THE RELIGIOUS DEFENCE: PUTTING IT IN CONTEXT

I suggest the existence of the religious defence stems from the history of religion in Canada, the prominence we give it in Canada and its association with freedom of expression.

The courts recognized religious belief as a right under the common law constitution inherited from the United Kingdom, although this is a relatively recent development. The history of religious persecution by (usually) dominant religions against (usually) minority religions and individual members of those religions has marred most countries. It is only recently that members of minority religions have generally not had to choose between their religion and participation in public life in Canada; in Quebec, the government has ensured that many public sector employees have faced that challenge again.

Religious belief is a protected “fundamental freedom” under section 2 of the Charter (although not so fundamental that it can’t be overridden under section 33 of the Charter) and it is also a prohibited ground of discrimination under section 15 of the Charter. Religious denomination schools were guaranteed under the Constitution Act, 1867, although the impact of this guarantee is not as robust as it once was. Religious belief is also protected under human rights legislation, which over time has greatly extended the rights accruing to religious practice.

While religion is a source of succor for individuals facing difficult times and a way in which people feel interconnected, it also serves as a way in which authorities control a population, especially, but not only in theocratic societies. And it can be a means by which a population is separated unofficially into “us” and “them” (for example, by requiring Christian prayer in public schools). Religious adherents may also separate themselves from mainstream Canada by practices that are not consistent with basic Canadian values.

At the same time, religion has also been the cause of oppression, wars and massacres. Religious tenets have been premised on the perception of observers of other religions as evil, people who should be put to death. Across the globe in the past and in the present believers of particular religious doctrines have and do face suppression and worse.

The reasons for including specific offences against religious-motivated hate expression are obvious. But is it so obvious that religious belief should be a defence? And aren’t these two categories at least sometimes contradictory?

A reminder of the wording of the defence:

s.319 (3) [or s.319 (3.1)] No person shall be convicted of an offence under subsection (2) [or (2.1)]
…
(b) 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;
….

In contrast with the “truth” defence in s.319(3) (a) [and s.319(3.1)(a)], an individual claiming the religious defence does not have to establish that the belief in a religious text is true. This is consistent with Syndicat Northcrest v. Amselem, in which the majority of the SCC held “a claimant need not show some sort of religious obligation, requirement or precept to invoke freedom of religion” (Amselem, para. 48). Although Amselem states that the court should not go behind someone’s beliefs – or, in other words, interrogate the individual about the religious tenets upon which they rely – they can assess whether the beliefs are in good faith and are “neither fictitious nor capricious” (Amselem, para. 52).

The religious defence has two aspects: an individual does not have to relate an opinion on a religious subject to a religious belief or text and the individual may refer to a religious text for the basis of the opinion. This leaves a broad scope for the assertion of the religious defence.

The BQ’s interest in repealing the exemption is consistent with Quebec’s general aversion to public expression of religious belief. One of the most notable examples of this is the prohibition of religious symbols by public servants in various capacities (enacted in Bill 21, currently being challenged at the SCC), which the Quebec government now intends to extend to daycares, members of the public entering certain spaces and public prayer (see CBC report (November 27, 2025)). (I have written about Bill 21 on Slaw here and here.) Put another way, having a religious defence is inconsistent with a secular society.

Religious groups have opposed the repeal of the religious defence for several reasons.

According to Premier Christian News, “In October, the Christian Legal Fellowship urged lawmakers to retain the exemption, saying it exists ‘to protect Canadians against imprisonment for good faith expression of sincerely held beliefs’” and that “it allows people to discuss controversial issues, since the government should not determine whether a religious claim is truthful or not, and it protects good-faith critique of religious texts.”

The Canadian Council of Imams is concerned that repealing the exemption “could expose Canadians to criminal liability simply for reading, teaching, or discussing passages from sacred texts, such as the Qur’an, the Bible, the Torah, and other classical or historical religious writings.” Emphasizing that their objection is not to “criminalizing genuine hate speech”, the Council nevertheless warns against

the risk that religious texts, which are not inherently hateful, could be misinterpreted according to evolving societal norms, leaving enforcement at the discretion of the Crown and law enforcement agencies, and thus creating a chilling effect on religious education, discourse, and worship.

Religious groups are not the only opponents of repealing the exemption, however. The Conservative Party opposes the removal of the religion defence, which it considers a contravention of free speech and religion: its concern is also “that Liberal-Bloc amendments to Bill C-9 could be used to criminalize passages from the Bible, the Quran, the Torah, and other sacred texts”. Conservative MP Andrew Lawton explains why the Conservative oppose repeal here. Also see a column by the litigation director of the Canadian Constitution Foundation, “Christine Van Geyn: Changes to Bill C-9 aren’t combating hate — they’re criminalizing faith”.

(By isolating commentary on repeal of the religious exemption, I do not want to leave the impression that there is not opposition to Bill C-9 more generally: see, for example, the position of the Canadian Civil Liberties Association here and of a wide range of 23 civil society and religious groups here).

I don’t dismiss the concerns expressed by those opposed to the religious exemption, particularly as expressed by religious groups who believe that their religious texts and commentary may be misunderstood or misrepresented. However, the stronger argument in my view is that religious expression and belief should not be a reason to treat what would otherwise be hate expression as if it is not.

The religious belief or source defence is not the only provision that might apply to charges of hate expression that stem from a religious tenet or belief, although admittedly it might be easier to refer to the words of a holy book than to otherwise defend the expression. The section 319(3)(a) and (c) defences do not preclude someone’s views deriving from religious belief or a religious text, but these defences place religious-motivated expression on the same footing as other expression. However, these defences do require some alignment with truth, either because they establish the statements are true or on reasonable grounds [they] believe them to be true.

Complications also can follow if the charges are that members of a particular religious group or someone communicating purported hatred on the basis of religious tenets are making comments about a different religion or members of a different sect of the same religion. Where does the protection of religion lie? For those who engage in hate expression but who can claim they hold their views in good faith (and perhaps want to show that the subjects of their expression are heretics) or those who are victims of the expression?

Finally, we have to remember that the defence does not arise until the determination that the expression constitutes hate expression. There are then two options.

The first option is that we permit what we would otherwise call hate expression, with its attendant consequences for the victims, to be excused because those charged really believe their religion justifies an opinion of hatred.

The second option is that espousing hatred regardless of its source is treated the same, recognizing the impact on victims and society at large. As Dickson CJ said of hate propaganda, there are two harms: “there is harm done to members of the target group. It is indisputable that the emotional damage caused by words may be of grave psychological and social consequence”; and “[i]t is … not inconceivable that the active dissemination of hate propaganda can attract individuals to its cause, and in the process create serious discord between various cultural groups in society.” (Keegstra)

CONCLUSION

The inclusion of the religion defence when the “hate propaganda” provisions of the Criminal Code were first implemented was in keeping with a desire to protect religious belief as a general principle. Yet the implication of the defence is clear: it permits someone who has been found to communicated hate expression to escape accountability, particularly since the notion of religious belief has been treated broadly.

There have been two main objections to repealing the religion defence: that it can lead to charges laid on the basis of misunderstanding about religious beliefs or that it can result in quoting from religious books being the basis of a charge of hate expression; and that it removes a restraint on prosecutors bringing hate expression charges. (For examples of hate expression involving religion and reasons for concern about repealing the religion defence, including a greater willingness of prosecutors to prosecute speech based on religious belief if the defence is eliminated, see Joseph Brean, “What is the religious belief defence? What to know about proposed change to Canada’s hate crime law”.) (I do note that a conviction under the hate expression provisions could attract more severe penalties by virtue of Bill C-9 than is currently the case and therefore the loss of a defence may seem particularly troubling.)

A strong case can be made that the repeal of the religious defence is in the societal interest given the impact of hate expression. While there may be societal value in religious freedom, there is not societal value in a religious freedom that permits legal acceptance of hate expression derived from religious beliefs.

Even before the defence is applicable, there must be a finding that an individual engaged in hate expression. The courts have been clear, and Bill C-9 reinforces this, that the standard satisfying hate expression is difficult to meet. And should it be met, the other defences go some way to leading to an acquittal or, indeed, to a decision not to charge.

Apart from the meaning of hate expression, the hate expression regime contains several internal restraints on the release of a floodgate (or, if any charges, likely far fewer cases) of charges based on religious views. To start, there are inherent limits in each offence to which the religion defence applies. Section 318(2) defines “genocide” as requiring intent. Under section 319(1), inciting hatred is a crime only where it is likely to lead to a breach of the peace. Under section 319(2) and 319(2.1), non-private statements must intentionally promote hatred to attract liability. The same is the case with prospective section 319(2.2), addressing the use of symbols.

If the religious defence is repealed, it is all the more important that the requirement of the attorney general’s approval for prosecution should remain.

With these various safeguards in place at different points in the process, there is a strong case for recognizing that religious beliefs should not permit effective shield against accountability for hate expression.