Legal loopholes are protecting behaviours and speech that lead to discrimination and violence, says Quebec Justice Minister Simon Jolin-Barrette, who wants the religious exceptions for hate speech removed from Canada’s Criminal Code.

In a Nov. 27 letter to his federal and provincial counterparts, obtained by The CJN, he asked federal Justice Minister Arif Virani to criminalize hate speech delivered under the guise of faith, after criticizing the inaction of federal lawmakers following recurring outbursts in Montreal—which, he says, contributes to a toxic climate.

At issue are two lines in section 319, 3b and 3.1b, which state, “No person shall be convicted of an offence… 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.”

The exception provides a legal shield for radical extremists to encourage hatred and intolerance towards ethnic and religious groups, Jolin-Barrette wrote, or to disseminate racist, misogynistic or homophobic messages, “undermining our governments’ efforts towards peaceful co-existence.”

Jolin-Barrette insists the move is urgent and would not unjustifiably impede freedom of expression and the ability of individuals to express their religious beliefs. “On the contrary, this withdrawal would protect the rights and dignity of all Quebecers and Canadians, in accordance with the fundamental values of respect and inclusion that must guide us.”

One case that prompted the drive to amend the Code was Montreal imam Adil Charkaoui’s infamous speech at a demonstration in downtown Montreal three weeks after the Oct. 7, 2023, terrorist attacks on Israel. In front of thousands of supporters, he called on God to “kill the enemies of the people of Gaza and to spare none of them” and “take care” of “Zionist aggressors.”

That and other incidents since have raised awareness among many Canadians of the existence of the Criminal Code religious exception and raised in stark relief the barriers to prosecuting such behaviour, evidenced by Quebec prosecutors deciding not to prosecute Charkaoui for lack of confidence in a conviction beyond reasonable doubt.

A few weeks after that call to arms, Bloc Québécois leader Yves-François Blanchet tabled Bill C-367, An Act to amend the Criminal Code (promotion of hatred or antisemitism), which would simply repeal the clauses, but has been stalled since first reading. The uncertainty regarding the next parliamentary session amid the current turmoil of the Trudeau government and the legislative calendar makes the bill’s progress even more uncertain.

According to a February 2024 Léger poll of 1,529 Canadian adults, 66 percent of Canadians support Blanchet’s bill, while 75 percent of Quebecers are in favour, the highest number in Canada. The largest number of those opposed to the bill were in Alberta and Atlantic Canada, with 43 percent and 42 percent, respectively. Slightly more than a quarter (26 percent) of Canadians reported not being aware that the Criminal Code contains a section on hate speech, with Quebecers the most likely to not be aware (34 percent).

In Quebec, where rejection of religious dogma and exceptionalism has grown for decades, “secularism of the state presupposes equal treatment of citizens before the law, guaranteeing that it applies to all regardless of religious convictions,” Jolin-Barrette wrote on social media, adding the exception is incompatible “with the secularism and social values of the Quebec nation…. The federal government must not wait for further outbursts, it must amend the Criminal Code.”

Quebec’s opposition Liberals support its removal and his motion, which was adopted unanimously by Quebec’s National Assembly. The Quebec Conservative Party’s spokesman, Cedric Lapointe, says the growing demand to remove the protections is “excellent news—no one should be allowed to threaten or incite violence, regardless of their religious beliefs.… Adil Charkaoui should be charged with hate speech and imprisoned for publicly stating that all Israelis should be eliminated.”

The view of B’nai Brith Canada is that recent incidents demonstrate the exemption has been abused and allowed hate-mongers to escape prosecution for inflicting substantial harms which the wilful promotion of hatred provision was created to prevent. “By limiting the breadth of the conduct which is considered exempt under Section 319(3)(b), Parliament should ensure that the exemption is not being used as a way to circumvent prosecution.”

To see or hear peaceful demonstrations is always welcome, Blanchet told reporters on Dec. 4. “It’s normal, it’s part of democracy. It’s even more normal on university campuses. But we must not give in to hate speech or invitations to violence.” He pushed Prime Minister Justin Trudeau on the issue earlier that day in Parliament, stating, “I get the impression that the prime minister does not appreciate how serious the situation is…. The Jewish community in Canada and Quebec is afraid. Here and in Quebec, because of the federal government, people can incite violence against Jews with impunity.”

He says the “vast majority of Quebecers and the vast majority of Canadians” want the change. “There’s no strategic calculation, there’s no negotiation, we all want something done.”

When pressed by Blanchet, Trudeau responded that Conservative filibustering—with Bloc support—precluded meaningful debate or progress on many files, but then relented, stating the government is “very open to discussing, debating and moving forward on this issue. We recognize that there is no simple or easy solution to this.” Trudeau reiterated that Blanchet’s bill is only a partial solution, “but we must continue to work together. That is why we introduced Bill C‑63, which addresses online hate, protects our children and will be part of the solutions across the country to combat hate and discrimination, especially online.”

The government’s Bill 63 (the Online Harms Act), among other things, amends the Criminal Code with definitions of hate and other provisions, as well as the Canadian Human Rights Act, while putting much of the onus on digital platforms to assume responsibility for harmful content.

Blanchet told reporters the bill is very complex and he’s uncertain if his proposal should be folded into it. “There are elements where there is criminalization on the basis of intent that is very difficult to demonstrate, with very serious penalties that cannot be adopted as such. So we can’t say we’re going to put the law on religious exception inside that.” He would prefer, he says, to just remove the exception from the Criminal Code.

In a Dec. 3 open letter, Centre for Israel and Jewish Affairs vice-presidents Eta Yudin and Richard Marceau said the “good faith” proviso is problematic. “Can people spread hatred and incite violence while acting in good faith?” they asked. “Can one freely wish for the annihilation of a group while pleading that it was a simple prayer?” There should be a logical answer, they say, but “that is not how it works in Canada.” 

“How can we imagine that the calls for murder that we have been hearing constantly in our ‘streets of peace’ for weeks are declarations of ‘good faith’?”

The exemption, they say, “often acts more as a deterrent to prosecution than anything else,” adding Canada’s image and the security of its citizens can be “undermined by this wait-and-see attitude.” Demonstrations in Montreal over the last 14 months have seen some promote “under the cover of ‘preaching’, calls for the death of ‘Zionists’, invocations of jihad and declarations of rallying to recognized terrorist organizations,” says the CIJA statement. “Where is the good faith here?”

The drive to amend the law is happening against the backdrop of a year of unprecedented hate expressed in cities across the country. Jews are the single most targeted group for hate crimes by a wide margin, especially after Oct. 7, 2023, Montreal police have reported.

According to the Service de police de la Ville de Montréal (SPVM), 310 hate crimes and incidents were recorded against the Jewish (230) and Arab-Muslim (80) communities, and 42 individuals have been charged with hate crimes since Oct. 7, 2023. The statistics follow a national trend. According to Statistics Canada, police-reported crimes against Jews across Canada numbered 900 in 2023, a 71-percent increase from 2022.

The most frequently reported hate crimes in Canada were directed against Jews, who, along with LGBTQIA2+ and Black Canadians, account for 19, 18 and 16 percent of hate crimes, respectively.

Abolition of the religious exemption is a key CIJA recommendation to better combat hate speech and speech glorifying terror, spokesman Julien Corona told The CJN. “This abolition must ensure that they are fully sanctioned. We cannot afford to tolerate words that promote the explosion of antisemitism and hatred in what are supposed to be our ‘streets of peace’.” Jolin-Barrette is showing leadership on this issue with this letter, says Corona. “It’s high time the federal government followed through.”

Mount Royal MP Anthony Housefather has supported removing the religious exemption for hate speech for years, telling The CJN, “I continue to support it, and I support the private member’s bill that has been put forward to do this.” The Canadian Conference of Catholic Bishops had no comment about Blanchet’s bill, but said members of its Permanent Council “are aware of the matter and are monitoring it closely.”

While Trudeau affirmed last year that Canada already has very strict rules against incitement to hatred, genocide and violence, CIJA posted on social media that the last 14 months in Montreal proves that is not the case.

“Condemnations are no longer enough. We need action.”

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