Status: Passed 1st reading in the House of Commons
Description: Bill C-254 seeks to add a prohibition to the Criminal Code regarding the wilful promotion of hatred against Indigenous peoples by “condoning, denying, downplaying or justifying the Indian residential school system in Canada or by misrepresenting facts relating to it.” This prohibition is similar to an already-existing prohibition on the wilful promotion of antisemitism.
Analysis: Canadians have different perspectives on issues including residential schools, and should be permitted to disagree and dialogue about such topics. Singling out particular groups or events in the Criminal Code risks censoring speech that is not hateful but is instead politically unpopular.
Action Items:
In 2024, the Trudeau government introduced the Online Harms Act (Bill C-63) to combat hate in Canada. While the bill proposed positive steps to combat pornography for minors, the hate speech provisions were extremely concerning. The bill received widespread criticism on a variety of fronts. It never proceeded beyond 1st reading, and died when Justin Trudeau prorogued Parliament in January 2025.
The Liberals’ 2025 election platform, under the direction of the new leader Mark Carney, promised to combat hate against those who are attending places of worship, schools, and community centres. Fulfilling that promise is a key component of the government’s new Combatting Hate Act.
As noted by the Department of Justice, the bill tackles “rising antisemitism, Islamophobia, homophobia and transphobia,” and prohibits certain conduct that would impede access to worship and other institutions. It also creates a stand-alone hate crime, for which a person can be charged in any case where he committed a crime (e.g. theft or assault) that was considered to be motivated by hatred.
Although this legislation has removed some of the worst elements of previous bills, the proposed provisions related to hatred still have problems.
Bill C-9, Combatting Hate Act
Although the Criminal Code prohibits the wilful promotion of hatred and the public incitement of hatred, the term “hatred” is undefined. However, court precedent has established a fairly high bar for this offence.
Bill C-9 would define hatred in the Criminal Code as “the emotion that involves detestation or vilification and that is stronger than disdain or dislike.” The bill would also clarify that a statement is not inciting or promoting hatred “solely because it discredits, humiliates, hurts or offends.”
These statutory provisions seem designed to capture how the courts have interpreted the existing criminal prohibition against wilfully promoting hatred. However, one could add other qualifying phrases from relevant case law, such as that the emotion in question is “a most extreme emotion that belies reason; [that] implies that [members of an identifiable group] are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.”
Any definition of “hatred” that is added to the Criminal Code itself will supersede the existing common law definition, which is more detailed and arguably sets a higher bar. Apart from codifying a definition of hatred, the Combatting Hate Act adds three new, substantive provisions: on hate symbols, on hate crimes, and on restricting access to religious or cultural places.
Hate Symbols
The Criminal Code currently prohibits wilfully promoting hatred “by making statements”, other than in private conversation, against an identifiable group. An identifiable group includes those distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability. But is a political symbol, without any words accompanying it, a statement against an identifiable group? Nobody has ever been charged with this offense simply for displaying a symbol.
If passed, Bill C-9 would prohibit wilfully promoting hatred against an identifiable group by displaying “hate symbols” in public places. The Nazi swastika is the only symbol directly mentioned in the bill, but the bill would also prohibit wilfully promoting hatred by displaying symbols associated with designated terrorist entities. Offenders could be subject to up to two years in prison. Spray-painting a swastika on the doors of a synagogue, for example, would likely violate this proposed prohibition.
Displaying such an image is not an offence per se. It is only an offence if displayed with the intent of promoting hatred against an identifiable group. For greater clarity, the bill explains that the offence would not capture the display of such symbols for a legitimate purpose related to journalism, religion, education, or art, or if the symbol is used to point out matters that may produce hatred in an effort to have them removed. So, a swastika would still be permitted in a history textbook, for instance.
The prohibition captures any symbol “principally associated with a terrorist group” or that “resembles [such] a symbol,” meaning there’s some room for ambiguity. Canada does have a designated list of terrorist groups, which would add some clarity. But even so, it may be difficult to determine whether such a symbol is being used to promote hatred against a particular group. Consider someone waving a Nazi symbol in a protest. Is it being waved to promote hatred? Or perhaps to protest an authoritarian regime? Or perhaps to mock certain people as Nazis or to label a certain political figure a Nazi? Or how about a Hamas symbol? Is it being used to criticize Israel, support Palestinians, or promote hatred against Jews? How can a judge know for sure? There may be a risk of political or ideological bias creeping into the enforcement of the law by police, prosecutors, and judges.
Hate Crime
Like its predecessor in 2024, Bill C-9 would add a new hate crime offence to the Criminal Code. The Criminal Code already makes hate (distinct from hatred in the offence of wilfully promoting hatred), bias, or prejudice a factor in sentencing. So, for example, if you assault someone and there is evidence that your assault was likely motivated by racial hate or prejudice, that “aggravating factor” will likely mean a harsher sentence for you. But the offence is still assault, and the maximum penalties for assault still apply.
But the new stand-alone hate crime offence would be added as a separate offence to any offence (e.g. assault) found to be motivated by hatred. So if someone commits assault, they may be subject to imprisonment up to five years. But if that assault is found to be motivated by hate, the offender could be charged with hate crime in addition to assault. The maximum possible penalty for the hate crime would be 10 years, in addition to the maximum of 5 years for the initial assault.
Access to Religious or Cultural Places
Currently, it is an offence to obstruct, interfere or interrupt “any person in the lawful use, enjoyment or operation of property.” This offence of mischief can apply broadly, but the Criminal Code also already clarifies that it applies to obstructing access to a building used for religious worship, or a building used by an identifiable group for various activities, events, or as a residence.
Bill C-9 would remove the mischief offence as it relates to religious property and other cultural institutions and would instead create an offence for intimidation and obstructing access to such places. It would prohibit engaging in conduct with the intent of provoking a state of fear in order to impede access to a building used for religious worship, or a building used by an identifiable group for activities, events, education, or as a residence, or a cemetery. Similarly, it would prohibit intentional obstruction or interference with lawful access to any of these places. Such activity would be punishable by up to ten years in prison. (A similar prohibition was enacted in 2021 in relation to access to health care).
No one is guilty of an offence for being at or near a building “for the purpose only of obtaining or communicating information.” There had been some talk about implementing so-called “bubble zones” around religious buildings or cultural or other institutions. Such bubble zones may have looked like bubble zones around abortion clinics that prohibit peaceful protest or sharing of information within so many meters of the facility. Thankfully, Bill C-9 does not go that far.
Analysis
We are grateful that the worst elements of the government’s previous attempts to regulate hate speech were excluded from Bill C-9. The previous version included harsher penalties for hate crime and hate speech (including up to life in prison for any hate crime), anticipatory hate crimes – where someone could be convicted because they will commit hate speech or a hate crime in the future – and incorporating hate speech into the Canadian Human Rights Act, which sets a low bar for conviction.
But there remain a few concerning elements, largely around wording that may be vague for law enforcement. Additionally, the bill would make it easier to prosecute hate speech offences. Currently, the Attorney General of Canada must consent to such charges being laid. But Bill C-9 would remove the requirement for consent and make it easier for police to lay charges.
While Bill C-9 defines hatred so as to exclude disdain, dislike, or offence, it still relies on understanding the motivation behind a person’s actions as well as the effect it has on the emotions of others. Hatred is a real sin. But government and law enforcement cannot discern the degree of hatred in one’s heart, though they can judge and punish the things they do.
That’s why existing prohibitions in the Criminal Code focus on prohibiting particular actions, not emotions or motivations. While Christians should condemn hateful thoughts, words, and gestures, the government cannot regulate the heart.
Overall, Canada already has sufficient criminal laws around protecting access to places of worship and other buildings. Frankly, the primary problem seems to be police and prosecutors’ hesitation to enforce existing laws. While Bill C-9 excludes some of the most concerning elements that have been attempted in hate speech legislation, various concerning aspects remain. Stay tuned for further actions items as this bill moves through the legislative process.
Status: No longer active due to prorogation of Parliament.
Description: Regulates a wide variety of online harms including child pornography, non-consensual pornography, hate speech, promoting genocide, and promoting anti-Semitism. This includes once again adding hate speech as a violation of human rights under the Canadian Human Rights Act. This offence (Section 13) was removed from the Human Rights Act by the previous Conservative government.
Analysis: The provisions that propose to restrict access and dissemination of pornography are positive policies that ARPA has called upon in our policy report on pornography. However, addition of hate speech provisions in Canada’s Human Rights Act will likely lead to less freedom for Christians to proclaim the truth of God’s Word in the public square.
Articles: “One Step Forward, Two Steps Back in Online Harms Bill”
Action Items:
The Ontario Court of Appeal has ordered a retrial of William Whatcott on a criminal charge of willfully promoting hatred against gay men for distributing a graphic flyer at the Toronto Pride Parade that warned about the dangers of gay sex. Mr. Whatcott was acquitted at trial and the Crown appealed. The Crown succeeded at the Court of Appeal in obtaining a retrial.
The Court of Appeal found that the trial judge was wrong to exclude “expert evidence” from York University professor Nick Mulé, who is considered an expert in anti-gay discrimination. Professor Mulé teaches at York University’s School of Gender, Sexuality and Women’s Studies. His Ph.D. is in Social Work and Social Policy.
The excluded evidence was a written opinion by Professor Mulé about how Mr. Whatcott’s flyer relied on several anti-gay “tropes” in order to promote hatred against gay men. Those tropes, according to Professor Mulé, are based on health (gay men are diseased), religion (gay men are morally corrupt), and law (that gay men are criminals). According to Professor Mulé, these “tropes” function somewhat like “dog whistles” – though taking the form of medical claims or sincere religious objections to certain sexual conduct, they are allegedly rooted in deeply discriminatory, damaging, and hateful stereotypes of gay men.
The Court of Appeal concluded that “Professor Mulé’s evidence would have been of great assistance to the trial judge in recognizing and analyzing the contents and impact of the ‘dog whistles’.” The Court of Appeal has therefore ordered a retrial, in which the judge or jury must consider Professor Mulé’s evidence. Whatcott could be acquitted again or convicted on retrial. He could also appeal this ruling to the Supreme Court of Canada.
The rest of this article further explains why the Court of Appeal has ordered a retrial. For more background on this case and a summary of ARPA’s arguments at the Court of Appeal, see our earlier article.
Expert evidence in court cases
Judges must decide cases based only on evidence that is properly before a court. There is a large body of law governing the admissibility of evidence. For starters, the evidence must be reliable and relevant. And its “probative value” must outweigh its “prejudicial effect” – for example, evidence of a defendant’s past convictions may prejudice a jury against him but have little value in helping them determine what happened in the case before them.
All evidence comes before the court through witnesses. Witnesses’ testimony can be tested through cross-examination and compared to the testimony of other witnesses.
Witnesses are not ordinarily permitted to give opinions. Rather, they are to testify about facts they have observed directly – what did they see or hear or say or do? But there is a narrow exception to this rule for experts, who may be permitted to give opinion evidence if their evidence passes a certain test. If permitted, an expert may offer interpretations of facts or an opinion as to what certain facts imply.
Expert evidence is “presumptively inadmissible.” The burden is on the party who wants to bring an expert to court to demonstrate that the expert’s opinion is both relevant to an issue before the court and necessary to assist the judge or jury. The proposed expert witness must also be established as an expert in the subject matter in question and his evidence must not go beyond the scope of his expertise.
An expert opinion is considered necessary to assist the trier of fact where the meaning or implication of certain facts is beyond the ordinary person’s ability to comprehend. For example, an expert may be permitted to testify not only as to what he observed at the scene of a burned building but also to give his opinion on what likely caused the fire.
One danger in admitting expert opinion evidence is that the “trier of fact” – the judge or jury – will defer to the expert’s opinion as to what certain facts established by direct evidence imply, rather than decide this for themselves based on a holistic and objective assessment of all the evidence.
The role of experts in Whatcott’s trial
In Whatcott’s case, it is not the job of an expert in Christian theology, medicine, social work, or any other field to determine whether Whatcott committed a crime at the pride parade. That is the job of the judge or jury.
But the trial judge did admit opinion evidence from two experts. Dr. Loutfy was an expert in sexually transmitted diseases and gave her opinion regarding the degree of (in)accuracy of Whatcott’s claims about the health risks of engaging in gay sex. Another was Douglas Farrow, a theological expert, who explained the ways in which the flyer was connected to important scriptural themes like the sinfulness of gay sex and the duty to warn people about the dire consequences of sin and to call sinners to repentance.
As for the proposed opinion evidence of Professor Mulé, the trial judge found that the “detailed linkages between the tropes of health and religion and anti-gay discrimination as found in the academic literature are unlikely to be within the knowledge and experience of the trier of fact.” However, the trial judge also concluded that a full knowledge of these “detailed linkages” was unnecessary, as “there is a well-known history of discrimination against gay people based on religion, health, and law.”
The trial judge also found that Professor Mulé’s report, which was highly critical of traditional religious teachings on sexual morality might have a significant prejudicial effect and turn Whatcott’s trial into a debate about the merits of his religious beliefs, rather than about whether he intended in this instance to promote hatred against an identifiable group.
The Court of Appeal concludes the trial judge erred in excluding Professor Mulé’s report
The Court of Appeal found that the trial judge erred by mischaracterizing the issue of necessity. The Court of Appeal said the issue is not whether a judge or jury could understand – without an expert’s opinion – that anti-gay discrimination exists. It is whether the judge could understand the subtle ways in which the flyer “perpetuated long-held negative stereotypes about gay men and relied on these stereotypes to promote hate” (para 41).
The Court of Appeal also reasoned that Professor Mulé’s report will provide important evidence of how the flyer impacts gay men. “The perspective of the gay male community as it relates to the tropes present in the flyer might strengthen (or diminish) the hatefulness of Mr. Whatcott’s communication,” the Court reasons. With respect, the Court’s reasoning on this point appears to constitute an error of law. The Court here seems to incorporate the perspective of gay men into the key task of setting the legal standard for hate speech.
While it is true, as the Court of Appeal notes, that the Supreme Court of Canada has identified the emotional distress caused by hate speech as one of the harms that hate speech laws seek to suppress, the Supreme Court has simultaneously maintained that the legal test for whether a person has committed the crime of willfully promoting hatred is not based on the perspective of the target group. The accused speaker cannot be convicted based on the subjective feelings of the target group. Thus, evidence as to the subjective reaction of the target group is not needed to resolve the case. Nor is an expert opinion necessary to establish how the speech in question makes the target group feel. In any hate speech case, the Crown could call several witnesses from among the target group to testify directly about how the alleged hate speech made them feel if that were relevant.
Thankfully, the Court of Appeal later points out that the standard for hate speech is strictly objective (i.e. not based on the subjective feelings of the target group). It is quite clear on this point and takes direct note of ARPA Canada’s submissions on it. However, the Court does not appear to apply this point directly to its assessment of the relevance and probative value of Dr. Mulé’s report. Rather, the Court suggests that evidence regarding the emotional distress the flyer may cause to gay men is necessary to establish the full context.
The Court of Appeal also found that Dr. Mulé’s evidence was needed to provide balance to Professor Farrow’s evidence:
“The religious explanation [provided by Professor Farrow] and scriptural content of the flyers were fully before the court, and the trial judge relied on it in assessing whether the flyer met the definition of hate speech. However, on the other side, the full extent of the hateful meaning and subtext of the flyer was not presented, and the court did not receive a proper explanation, supported by expert analysis, of how exactly the flyer constituted hate speech against gay men, in the broader social and historical context of tropes in anti-gay discrimination. For example, in relying on Professor Farrow’s evidence to conclude that “sodomite” is an insulting term only in some contexts, the trial judge provided a one-sided analysis of the specific words.”
The Court of Appeal also made certain conclusory statements about Professor Mulé’s evidence that seem inappropriate, given that the accuracy of Professor Mulé’s evidence was not tested before the Court of Appeal. For example, the Court comments, “Professor Mulé demonstrated that the respondent played on classic homophobic tropes such as that gay men are morally inferior, corrosive to Christian morals, dangerous to children, and therefore deserving of disease and suffering.” But it is debatable (at best) that Professor Mulé “demonstrated” that Whatcott did all of the above.
Professor Mulé’s report is especially troubling in its commentary regarding Christianity and homosexuality. He says that there is a range of views within Christianity, with “conservative denominations … utilizing a literal interpretation that opposes same-sex relations.” These denominations, he claims, create and perpetuate “an ‘immorality’ trope that discriminates against LGBT2-SQI communities.” Mulé puts “immorality” in quotes, of course, because he does not believe there is anything immoral about same-sex sexual relations. He also comments that Whatcott’s call for gay men to repent amounts to an accusation that they are sinners, which Mulé says “is both discriminatory and insensitive to the many religious members of LGBT2-SQI communities.” Mulé, who is not an expert on the Bible, Christianity, or ethics, purports to give an “expert” opinion on the meaning and implications not only of Whatcott’s flyer but of “conservative” Christian teaching on sexual morality.
ARPA Canada will find out in the next month whether Whatcott will appeal to the Supreme Court of Canada. If he does, ARPA Canada intends to intervene in that hearing too, DV.
ARPA delivered arguments to Ontario’s highest court last week about respecting the freedom to share religious and moral beliefs on sensitive subjects. Here’s a quick history of how we got there and why it matters.
It all starts with a man named Bill Whatcott. Whatcott says that as a young man he lived on the streets and, on occasion, performed sexual favours for other men for drugs. But Whatcott eventually found his way off the streets, got married, converted to Christianity, and became a nurse. As a nurse working in downtown Toronto, Whatcott says that he saw many men die from AIDS.
Because of his experience and his faith, Whatcott believes it is his calling to preach against homosexuality and transgenderism. But it is Whatcott’s method of doing so that has made him notorious.
Whatcott at the Supreme Court of Canada
In 2013, the Supreme Court of Canada ruled that Whatcott had engaged in hate speech (according to Saskatchewan human rights law) by handing out flyers which warned against including homosexuality as a topic in public education. The flyer said, among other things, that “homosexuals want to share their filth and propaganda with Saskatchewan’s children” and “our children will pay the price in disease, death, abuse.”
The Supreme Court of Canada concluded, in that (2013) case, “The repeated references to ‘filth,’ ‘dirty,’ ‘degenerated’ and ‘sex addicts’ or ‘addictive behaviour’ emphasize the notion that those of same-sex orientation are unclean and possessed with uncontrollable sexual appetites or behaviour. The message which a reasonable person would take from the flyers is that homosexuals, by virtue of their sexual orientation, are inferior, untrustworthy and seek to proselytize and convert our children.”
Whatcott was ordered to pay a substantial sum to the complainants in that case. But when it came to passing out more flyers in the future, Whatcott was undeterred. In 2019, ARPA reported on another human rights tribunal decision about a different Whatcott flyer which he had distributed in Vancouver.
From human rights complaints to criminal indictment
The latest Whatcott court case is a more serious matter because it involves not a human rights complaint but an indictment under the Criminal Code of Canada. For this particular crime, the local Crown prosecutor has to ask permission from the Attorney General of Ontario to prosecute a charge, a petition that was granted. If convicted, Whatcott would likely receive a prison sentence.
Though the appeal hearing was held just last week, the story of his criminal case begins 7 years ago. In 2016, Whatcott infiltrated the Toronto Pride Parade under the made-up name “Robert Clinton.” leader of the fake “Gay Zombie Cannabis Consumers Association.” The Pride Parade Committee gave him the green light. Whatcott and company distributed what they called “safe sex packets” at the parade, which contained flyers folded within small wrappers.
On one side, the flyer warned about the health risks of engaging in homosexual relations. It had several graphic photos of infected body parts. It also had a photo of an emaciated corpse on an autopsy table. On the other side, the flyer described sex scandals involving politicians who supported Pride. At the bottom of the flyer, there was a call to repentance and a number to call if you wanted to stop having gay sex and become a Christian. The flyer ended by quoting 1 Peter 2:21-25: “For to this you have been called, because Christ also suffered for you, leaving you an example, so that you might follow in his steps. He committed no sin, neither was deceit found in his mouth. When he was reviled, he did not revile in return; when he suffered, he did not threaten, but continued entrusting himself to him who judges justly. He himself bore our sins in his body on the tree, that we might die to sin and live to righteousness. By his wounds you have been healed. For you were straying like sheep, but have now returned to the Shepherd and Overseer of your souls.”
People complained to the police, who arrested Mr. Whatcott and charged him with “willful promotion of hatred,” one of the Criminal Code’s “hate propaganda” offences.
Whatcott was acquitted at trial, but the Crown appealed
Whatcott was acquitted at trial. The judge decided that Whatcott’s flyer was a “borderline case.” After hearing all the evidence, the judge doubted whether the flyers passed the legal test for hate propaganda. Unhappy with the verdict, the Crown prosecutors appealed.
The Crown subbed in new lawyers to argue the appeal and they subbed in some new arguments as well. At the lower court (the first trial) the Crown prosecutors had argued that Whatcott promoted hatred against gay men by presenting them as dangerous spreaders of disease.
On appeal, however, the Crown also argued that Whatcott, by calling for an end to gay sex, was calling for the “eradication” of gay men. The Crown argued that the flyers themselves were an extreme manifestation of hatred. Finally, they also argued that it was the court’s job to assess the degree to which Whatcott’s personal beliefs were hateful.
ARPA’s legal arguments
This is where ARPA’s arguments came in (you can read our written arguments here). ARPA made three main points to the panel of judges.
First, ARPA explained that the law distinguishes between condemning conduct that is core to a group’s identity (in this case, same-sex sexual relations) and promoting hatred against that group. Leading case law maintains that people are free to criticize or condemn the conduct or beliefs of a group, provided they do not also make “hate-inspiring representations” of that group. What is a hate-inspiring representation? The Supreme Court has used an example the claim that all gay men are pedophiles, a defamatory generalization of gay men that (if believed) might incite hatred in others towards them.
Second, ARPA clarified that the Criminal Code does not target the beliefs or ideas that someone expresses, per se, but only the substantially certain effects of their communication. The Supreme Court has said that judges should not be deciding what are acceptable or unacceptable beliefs for people to hold or to share. The issue is, rather, whether the accused intended to incite hatred in other people towards an identifiable group (defined by race, religion, sexuality, gender, or disability). Maintaining this distinction in law is important if we are to avoid having judges label beliefs as “hateful” or “hatred.”
Hatred in this legal context means an “intense and extreme emotion” that “belies reason” and that may lead to actual mistreatment or violence. Whether a statement or publication will promote hatred depends not only on the wording and images used but also on all of the circumstances of the speech, including the intended audience. A publication or message (including a Bible verse, a catechism excerpt, or even a Whatcott flyer) cannot “constitute hatred” as the Crown contended because a publication is not an emotion. The “hatred” of concern to the law is a dangerously intense emotion directed towards a group.
And third, ARPA argued that individuals, unlike governments, are generally free to urge other people to change beliefs and conduct that are core to their identity, even if governments are not. (The Crown had cited case law which says that sexual orientation is something the government may not require anyone to change.)
What’s next?
If the Crown’s arguments are accepted, it could have major implications for Christian individuals and institutions who hold an orthodox view on human sexuality and sexual morality. Of course, most Christians don’t engage in the type of expression Whatcott does. But if the judges accept the Crown’s argument in principle, it may not matter how winsome, kind, or genuine you are in your attempts to communicate Christian teaching on such topics. Your speech might still be deemed “hateful.”
We don’t know how the Court will rule. We must wait for their decision, which will likely not be released for a few months to a year. In the meantime, we ask that you pray for the judges, that they would be careful, precise, and wise in their deliberations.