An amendment to stop the expungement of the good-faith religious text defence from Canada’s hate speech laws was voted down 4-3 (one abstention) by the Standing Senate Committee on Human Rights on June 1 during clause-by-clause consideration of Bill C-9, the Combatting Hate Act.

This body also voted yes on a proposed modification to criminalize residential school denialism, which passed with only one vote in opposition. The revised Bill C-9 advanced out of committee and will first complete the report stage before a third reading vote can take place in front of the whole Senate.

The agenda for the June 3 Senate agenda, the first possible date for the committee version of C-9 to be considered by the entire Upper Chamber, was set after the Register’s press deadline.

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Conservative Senator Yonah Martin introduced the narrowly defeated motion to restore the 56-year-old sincere religious speech defence. Bloc Québécois MPs made its removal a condition for the then-minority Liberal government receiving third reading support for the overall bill on March 25.

“The central question is if we should remove a protection that has existed for decades and there is no clear evidence that it has caused harm or impeded prosecutions,” said Martin. “Based on the evidence presented before this committee, that case has not been made. We heard clearly that this defence has not been used successfully to defeat a hate propaganda prosecution.”

Martin then voiced the sentiments of committee witnesses who expressed concerns about the risks that could befall Canada if Section 319(3)(b) of the Criminal Code is no more.

“The Anglican Church warned that the repeal could create new uncertainty around religious teaching and discussion,” said Martin. “Muslim organizations, including the National Council of Canadian Muslims, called for the defence to be restored. Witnesses from Black faith communities spoke about the chilling effects that can arise, not from the convictions but from the complaints, investigations and legal costs especially for smaller and marginalized groups.”

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She also argued that the for-greater-certainty clause introduced by the Liberals in the House of Commons as a substitute for removing the guardrail is not adequate.

Phil Horgan, president and general counsel of the Catholic Civil Rights League, questioned the effectiveness of this clause in an interview with The Register back in March.

“It is difficult for me to assess the proposed amendment brought forward from the Department of Justice, as it seems to suggest that a charge will not be laid if there is an expression on a religious topic that is in the public interest,” said Horgan. “(This) may leave open the possibility of a charge if the Crown is of the view that a discussion of certain religious texts is not in the public interest, and in the absence of the good faith religious defence, a pastor or faith leader would be at the peril of a charge.”

Once the House of Commons received the Senate version of the bill, the position of governing Liberals will be the focus of intrigue. Removing the religious texts defence from the Criminal Code was not included in the original version of the Combatting Hate Act tabled last September.

Now that the Liberals are armed with a majority, is there a chance that the ruling party can restore Section 319(3)(b) now that it no longer needs voting support from the Bloc? Or will the federal government proceed with the conviction that the for-greater-certainty clause is an adequate substitute?

The Liberals’ actions regarding the residential school denialism amendment will be notable too. There already is a private member’s bill from NDP MP Leah Gazan, C-254, calling for it to be illegal for anyone in public to willfully promote “hatred against Indigenous peoples by condoning, denying, downplaying or justifying the Indian residential school system in Canada or by misrepresenting facts relating to it.”

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It was Nunavut Senator Nancy Karetak-Lindell of the Independent Senators Group who advanced the amendment. She said it's necessary due to “growing anti-Indigenous racism, violence and harm surrounding the lasting harm of Indian Residential Schools.”

The lone dissension from Senator Patti LaBoucane-Benson, a Métis from Treaty 6 territory in Alberta, was on the grounds of calling for more consultation with Indigenous leaders to determine the path ahead.