Joanna Baron: Don't amend the hate-speech law. Scrap it

Parliament has criminalized a category of speech that cannot be defined with sufficient precision to guide consistent enforcement.

By: Joanna Baron

The Liberals and the Bloc Québécois have struck a deal to remove the religious exemption from Canada’s hate-speech laws. According to reports, the amendment will eliminate Section 319(3)(b) of the Criminal Code, the provision that currently shields speakers from conviction if their hateful expression was based “in good faith” on a religious text.

The Bloc, consonant with its laïcité fixation, has been pushing this change for years, arguing that the exemption creates a loophole for homophobic and antisemitic speech cloaked in scripture. Jewish and LGBTQ advocacy groups have echoed their call. The Liberals, for their part, seem willing to sell themselves out in exchange for Bloc support on Bill C-9, the government’s latest expansion of hate-speech prohibitions.

From a pure internal logic standpoint, the Bloc’s point of view has undeniable appeal. The religious exemption does create a conceptually awkward two-track system for criminalizing speech. The same language can be criminal or lawful depending on whether the speaker quotes Leviticus or drafts their own manifesto. That’s effectively a content- and identity-based distinction embedded in criminal law. Furthermore, it’s unique to Canada. Most other Western liberal democracies, including the United Kingdom, France, and Australia, do not have a religious exemption to hate speech laws.

Nevertheless, the correct response to that incoherence is not to eliminate the exemption, but to eliminate the offence.

Let’s be clear about what Section 319(2) does: it criminalizes the “wilful promotion of hatred” against an identifiable group. The offence is notoriously vague, highly subjective, and constitutionally precarious. It sweeps in speech that may be offensive, provocative, or deeply disagreeable, but not necessarily dangerous in any objective sense. It hands the state — police, prosecutors, and judges — enormous discretion to decide what counts as hatred, what qualifies as promotion, and whether the accused’s intent was sufficiently “wilful.”

The religious exemption exists precisely because the drafters of this law recognized that without it, the offence would potentially criminalize vast swathes of religious literature. The Hebrew Bible calls for the execution of men who lie with men. The Quran contains passages that condemn Jews and Christians as misguided or cursed and condone killing them. The New Testament warns of eternal damnation for unbelievers. Taken literally and without theological context, these texts could easily be read as promoting hatred.

So Parliament built an escape hatch. If you sincerely believe what the book says, and you’re expressing that belief in good faith, you’re protected, sort of (in practice, the defence has been applied quite narrowly).

The exemption makes no sense as a matter of first principle. It was a legislative compromise designed to prevent absurd outcomes likes rabbis charged for reading Torah, imams prosecuted for Friday prayers, Christian preachers hauled before courts for quoting Paul’s epistles. It was damage control applied to an overbroad law.

If the religious exemption is repealed, one of two things will happen.

Either prosecutors will continue to exercise restraint, declining to charge religious leaders for scriptural teachings even if those teachings technically meet the elements of the offence. But the law remains on the books, a sword of Damocles hanging over every synagogue, mosque and church.

Another darker possibility is that religious Canadians will find themselves in the docket, required to make the case to judges whether their interpretation of sacred text was made “in good faith,” whether their beliefs are sincerely held, and whether their expression truly constitutes the “wilful promotion of hatred.”

Consider that eventuality. A judge, presumably trained in constitutional law and statutory interpretation but probably not in Talmudic exegesis or Islamic jurisprudence, will be asked to determine whether a speaker’s reliance on scripture was genuine or pretextual. Was it metaphor? Liturgical formula? A parable? A genuinely held doctrinal position?

This is not a hypothetical. Without the exemption, these questions move from theoretical to operational. The state will be forced to parse Psalms, dissect Hadith, and evaluate the theological bona fides of congregants and clerics.

If there’s one silver lining to the removal of the religious exemption, it’s this: operationalized, it will make the categorical incoherence of hate-speech laws in their entirety impossible to ignore.

If Parliament is determined to criminalize “hatred,” and if the Bloc and Liberals are determined to eliminate the religious carve-out, then let’s go all the way. Let’s force the courts to confront the unworkability of this regime head-on. Let’s make judges explain, in public reasons, why one reading of scripture is lawful and another is criminal.

To be clear, the Canadian Constitution Foundation’s official position on this law is straightforward: Section 319(2) should be repealed. The offence is vague, overbroad, and inconsistent with the principles of free expression protected by Section 2(b) of the Charter. It chills legitimate debate on matters of public concern. It grants the state dangerous power to police opinion. And it produces outcomes that are arbitrary, unpredictable, and constitutionally untenable.

In practical terms, though, as long Section 319(2) remains on the books, the religious exemption should be preserved as a limit upon the reach of an already overreaching law.

The real problem is that Parliament has criminalized a category of speech that cannot be defined with sufficient precision to guide consistent enforcement. Every application of Section 319(2) requires subjective judgment calls about tone, context, intent, and effect. Every prosecution is an exercise in line-drawing by unelected officials.

The religious exemption didn’t create that problem. It simply made the problem slightly more visible and slightly less totalizing.

Joanna Baron is executive director of the Canadian Constitution Foundation.

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