The Canadian government is considering significant changes to its hate crime legislation. The governing Liberal Party has reportedly reached an agreement with the Bloc Québécois to advance a reform bill that would eliminate the special defense of religious belief in cases of willful promotion of hate. This proposed change has raised concerns among civil society and religious organizations, who argue that it could expose individuals to legal risks and suppress religious discourse due to the fear of prosecution.

Under Section 319(2) of the Criminal Code of Canada, individuals can face up to two years in prison for publicly promoting hatred against identifiable groups. Currently, there are four defenses available in such cases, including the good faith religious belief defense. This defense protects individuals from conviction if they can demonstrate that their statements were made in good faith regarding a religious subject or based on religious texts. The proposed bill seeks to remove this defense, which critics argue could lead to a chilling effect on religious expression.

The origins of this law date back to the post-war era of human rights legislation in Canada. It was established as part of a broader framework that also prohibits hate propaganda and advocating genocide. The law has undergone various challenges and adaptations since its inception, including the transition from print and telephone communication to the digital age. The proposed amendments also aim to clarify the definition of hate in the Criminal Code, aligning it with Supreme Court precedents. In this context, hate is defined as "detestation and vilification," rather than mere disapproval or offense.

Historically, the good faith religious belief defense has rarely been successfully invoked in court. Richard Moon, a law professor specializing in hate laws, noted that he is unaware of any successful cases utilizing this defense. Lawyer Christine Van Geyn found only one instance where it was attempted, which ultimately failed. In that case, a judge remarked, "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."

Prosecutions for willful promotion of hate are infrequent, with only a few dozen cases since the 1990s, and about one in four resulting in convictions. Notable cases include Jim Keegstra, a former teacher whose conviction for promoting antisemitic views was upheld by the Supreme Court in 1990, and Mark Harding, who was convicted in 1998 for distributing hateful materials about Muslims.

The proposed removal of the religious defense has drawn criticism from opposition parties, particularly the Conservatives, who argue that it constitutes an attack on religious freedom. Critics express concerns that the vague language of the amendment could deter individuals from expressing legitimate religious beliefs. In a recent letter, Catholic Bishops sought assurances from Prime Minister Mark Carney that good faith religious opinions would not be prosecuted as hate speech.

Additionally, the proposed changes would eliminate the requirement for provincial attorney general approval for hate speech prosecutions. This requirement currently adds a layer of political accountability, ensuring that such sensitive prosecutions are not undertaken lightly. The removal of this requirement could further exacerbate fears among religious communities regarding the potential for misuse of the law.

As the debate continues, stakeholders from various sectors are closely monitoring the developments surrounding this proposed legislation, which could have significant implications for freedom of expression and religious rights in Canada.