We are increasingly hearing people declare that what they do not like to hear constitutes “hate speech”. In a recent column, Pierre Trudel notes that it is necessary to distinguish what can be “shocking” for a person from what is “hateful” in the sense defined by the law. He rightly and precisely recalls that the criterion established by the Supreme Court to determine whether a statement is of a hateful nature consists of asking whether “a reasonable person informed of the relevant context and circumstances would consider, from an objective point of view, that the comments expose or are likely to expose members of the targeted group to hatred.”
His reflections provide me with the opportunity to express my perplexity at a rarely discussed detail of section 319 of the Canadian Criminal Code, which, after establishing that “ [q]Any person who, through the communication of statements other than in private conversation, willfully promotes hatred against an identifiable group is guilty of: (a) an indictable offense and is liable to imprisonment for a term not exceeding two years; (b) an offense punishable on summary conviction”, immediately adds that ” [n]No person may be found guilty of an offense provided for in subsection (2) in cases where “he has, in good faith, expressed an opinion on a religious subject or an opinion based on a religious text in which he believes, or has attempted to establish its merits by argument.
There does not seem to be much established jurisprudence on the possible meaning to be attributed to the idea – in my opinion preposterous – that a person saying they believe “in good faith” that a “religious text” considered to have been dictated directly by God could justify hatred towards an identifiable group. However, the media have widely covered recently the controversial comments of Adil Charkaoui, considered an “imam”, who allegedly made public calls for violence in speeches given in Montreal on October 28.
As he asserts that he “refers to God”, can the Canadian Criminal Code, probably wanting to respect “sincere” religious beliefs – in Canada’s hyperbolic “multiculturalist” logic – come to his rescue by justifying its speech under the pretext that it is “sincere”? Prime Minister Justin Trudeau seems to believe so, as he refused to call Charkaoui’s speech “criminal” and instead focused on its “anti-Semitic” nature. And if in the name of a “sincere belief” in a “religious text” a person incited hatred against homosexual people, would this be simply “homophobic” and not criminal?
Lawyers are not fond of public speaking and we rarely read them in the media on these serious issues. But it seems legitimate to me to ask on what rational basis the Canadian government can have decided to grant religious beliefs exorbitant rights that any “reasonable” person – a fundamental notion in the eyes of the Supreme Court – will find, if not scandalous, at all. the least problematic.
Can we seriously accept, in a civilized society, that hatred towards any group whatsoever can be the subject of an argument in an attempt to establish its merits by invoking a “religious text”, as left explicitly understand the Penal Code?
This is surely a question that jurists or columnists should address to enlighten the public in these troubled times.