The Combatting Hate Act: A Legal Perspective and Call for Action
- Mark Sandler
- Sep 26, 2025
- 12 min read
Updated: Sep 27, 2025
On September 19, 2025, the federal government tabled its proposed anti-hate legislation, the Combatting Hate Act, Bill C-9. The community’s response to the legislation has been mixed. It is important that our response be an informed one, based on an accurate understanding, in law, of what the legislation does and does not do.
At the outset, I do commend the government for introducing anti-hate legislation early in its legislative agenda. Although I take issue with components of the legislation, such legislation is responsive to the spiralling and unprecedented levels of antisemitism and other forms of hatred being experienced across Canada.
However, I start with a cautionary note.
The prime impediment to the prosecution of hate-motivated criminals in Canada has not been the absence of adequate laws. Indeed, police already have available to them a wide range of criminal law tools to combat hate crimes. In some jurisdictions, these tools are being significantly underutilized.¹
Priority must be given not only to enhancing existing laws, but to enforcing the ones we already have.
That said, the tabled legislation proposes several legislative changes. Each needs to be separately considered. I will then briefly address what is not contained in the legislation that should be.
New Intimidation and Obstruction Offences
Description: The proposed legislation makes it a crime to wilfully intimidate and obstruct people respecting their access to places of worship, schools, community centres and other places primarily used by identifiable groups (that is, groups distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability).
More specifically, the proposed intimidation offence would make it a crime for anyone to engage in any conduct with the intent to make someone afraid, in order to prevent them from accessing certain locations of significance to our community and others. The proposed obstruction offence would also make it a crime to intentionally obstruct or interfere with a person’s lawful access to these locations.
The Department of Justice’s backgrounder says that these offences are designed not to apply to those peacefully protesting or otherwise not engaging in criminal activity around religious and cultural centres and other specified places.
Analysis: I acknowledge that the mere creation of these offences sends a significant message to those who wish to intimidate or obstruct people seeking access to vulnerable locations connected to identifiable groups. Identifiable groups include Jews and Israelis.
That said, it is important to also observe the following: Although this pending legislation has frequently been described, even within government, as federal “bubble legislation,” it is not. Bubble legislation is designed to prevent intimidation of those who attend vulnerable locations by restricting certain protest activities held within close proximity of those locations.
The Department of Justice’s press release reinforces my point. It says:
The Bill would not enact “bubble zones” that create protest-free areas around designated buildings. Bubble zone laws are enacted by provinces and municipalities. For example, some provinces have established access zones around abortion clinics, and some municipalities have enacted bubble zone by-laws to provide for safe access to facilities like schools, daycares and places of worship.
Bubble legislation withstood constitutional scrutiny when it was tested in British Columbia’s highest appeal court (with permission to appeal further to the Supreme Court of Canada denied) in connection with zones created around abortion clinics. The British Columbia Court of Appeal stated that such legislation minimally intrudes upon speech. It does not prohibit protests. It merely limits certain protest activities when they are too close to vulnerable institutions.
Simply put, the proposed federal legislation does not reduce the need for provinces or municipalities to pass bubble legislation protecting Jewish and other vulnerable infrastructure. Our community should continue to advocate for such legislation provincially and municipally. The federal government’s jurisdiction extends only to criminal law – that is, creating laws that criminalize intimidation and obstruction once they have already taken place.
I also observe that the Criminal Code already contains several offences that can address intimidation or obstruction associated with places of worship and other community-based locations.² So, it is doubtful that these new proposed offences criminalize any conduct that is not already criminal.
Finally, I note that the proposed new intimidation offence would be very difficult to prove, based on the defined level of intention required to be proven for a successful prosecution.
Conclusion: On balance, I support these new Criminal Code provisions as long as our community and our allies understand that they are more symbolic than likely to effect substantial change, and that they are not a substitute for bubble legislation.
New Hate-Motivated Offences
Description: The proposed legislation creates a separate crime when anyone commits what is already a federal criminal offence that is motivated by hatred based on specific grounds that include, but are not limited to, race, sexual orientation, religion or sex. The potential penalties for committing the new hate crime are enhanced to show the seriousness of the crime.
The Department of Justice backgrounder states that “[s]entencing courts must impose a penalty that reflects the seriousness of the offence and the degree of responsibility of the offender.”
“Hatred” is defined under the new legislation. The government has indicated that the “definition is based on Supreme Court of Canada jurisprudence currently followed by courts.” The definition focuses on the concepts of detestation or vilification and specifies that mere dislike or disdain is not hatred. The language is similar (though not identical) to the definition adopted by the Supreme Court of Canada. This has prompted some to question whether the proposed test is materially different. To avoid any litigation or confusion arising out of any perceived differences, I suggest that the precise language used by the Supreme Court of Canada be adopted here.³ This should not be problematic given the government’s commitment to follow the pre-existing jurisprudence.
Analysis: I strongly support this proposed provision. Currently, s. 718(2) of the Criminal Code states that judges must take into consideration, as an aggravating circumstance, evidence that an offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor.
The new hate offence does not merely require courts to take into consideration hate motivation on sentencing but makes it more likely that the court will impose a sentence focused on deterrence and denunciation, given the increase in potential penalties and Parliament’s expressed intention to treat a hate offence more seriously.
The new offence also ensures that the convicted person’s criminal record reflects the hate-motivated crime they were found guilty of. This is an important point because many hatemongers are repeated offenders.
Conclusion: This is a useful addition to the Criminal Code. However, the proposed legislation also repeals s. 430(4.1) of the Criminal Code. Subsection 430(1.1) creates a separate, aggravated (that is, a more serious) form of mischief respecting places of worship and other vulnerable locations when the mischief is motivated by bias, prejudice or hate. It is easier to prove that a crime was motivated by bias, prejudice or hate than to prove that it was motivated by hate (the most extreme emotion) alone.
The current aggravated mischief offence also uses language similar to the language employed under s. 718.2 of the Criminal Code for sentencing. More specifically, s. 718.2 also adopts the language, “bias, prejudice or hate,” not merely hate alone. Mischief motivated by bias, prejudice or hate is frequently committed, and is well known to the Jewish community, which has been the victim of vandalism against its places of worship, and other institutions.
This offence should not be dependent on proof of hate, as opposed to bias, prejudice or hate. It should survive the new legislation. It should not be repealed.
New Hate Propaganda Offence (Symbols of Hatred)
Description: The proposed legislation would create a new hate propaganda offence that would make it a crime to wilfully promote hatred against an identifiable group by publicly displaying certain terrorism or hate symbols, including symbols
principally used by or associated with terrorist entities listed under the Criminal Code,
the “Nazi Hakenkreuz (also known as the swastika)” and
the Nazi double-sig rune (also known as the SS bolts).
Analysis: I and others have advocated for the creation of a new free-standing offence that criminalizes the display of articles of clothing and symbols, including flags, associated with terrorist entities listed under the Criminal Code. On careful examination, the government’s proposal does not do that. Instead, it merely provides that one way in which an individual can wilfully promote hatred against an identifiable group (already a criminal offence) is by displaying such symbols.
This explicit acknowledgement represents a small step forward, but it is not adequate. This new offence still requires proof not only that the symbol has been displayed in a public place, but also the elements of wilful promotion of hatred against an identifiable group. Properly understood, it does not relieve the prosecution, in reality, of any elements of proof.
A simple, free-standing offence that criminalizes the display of such items has been utilized in other countries and states. The government may have chosen not to do what some other countries have done out of concern about freedom of speech guarantees.
However, this concern, in my view, is unwarranted if the legislation is carefully drafted to confine itself to the display of items directly associated with terrorist entities prohibited under Canadian law. I do not accept that the intentional/knowing display of items unequivocally associated with prohibited terrorist entities would be constitutionally problematic, especially when coupled with certain limited exemptions already contemplated by the proposed legislation.
The problem with the proposed legislation is compounded by how it is drafted.
The Criminal Code already has something analogous, though worded differently, in its anti-terrorism offences. Subsection 83.18(4) provides that “in determining whether an accused participates in or contributes to any activity of a terrorist group, the court may consider, among other factors, whether the accused “uses a name, word, symbol or other representation that identifies, or is associated with, the terrorist group.”
In my view, a new free-standing offence of displaying terror items should more closely track the existing language contained in the above anti-terrorism offence. The currently proposed language can be improved substantially by doing so. The term “symbol,” if it stands alone, may be interpreted too narrowly such that it does not apply where it is needed.
Equally important, I foresee issues of proof in determining whether it is the terrorist group that “principally” uses or is associated with the symbol. Do we immunize accused from prosecution for display of Hezbollah flags because Hezbollah’s supporters are displaying the flags more frequently than Hezbollah itself? I prefer language that describes items that “identify” or are “associated with” or even “closely/directly associated with” a terrorist group.
Finally, the legislation appropriately refers to the Nazi Hakenkreuz but adds that it is “also known as the swastika.” “Swastika” is a Sanskrit word that means well-being and good fortune. It is a sacred symbol and a word used by Buddhists, Hindus and Jains worldwide. Unfortunately, due to historical mistranslation or frequent appropriation of the word, it has been conflated with the Nazi hate symbol, the Hakenkreuz.
The legislation fails to differentiate between the Hakenkreuz and the swastika. In my view, it must explicitly make this distinction in the exemption subsection that is being proposed, as has been done in other jurisdictions.
Conclusion: This provision needs to be amended, in accordance with this analysis, before it can become an effective tool for law enforcement.
Repealing the Attorney General’s Consent for certain prosecutions
Description: Currently, the consent of provincial Attorneys General is required to lay charges for three of the four existing hate propaganda offences. The government proposes that this requirement be removed to streamline the process for law enforcement to act quickly to counter hate speech and protect communities.
Analysis: I wish to be clear on why, despite the superficial attractiveness of this provision, I oppose it. I have opposed the removal of the Attorney General’s consent for many years. I, too, have been frustrated with the bureaucracy associated with the requirement for the Attorney General’s consent.
I have also witnessed a lack of will at times shown by several Attorneys General to lay charges against antisemitic hatemongers where police support such charges and the evidence is compelling. So, I understand why some community organizations have supported this amendment.
Be careful what you wish for.
The requirement for the Attorney General’s consent was introduced to avoid abuse of the hate propaganda provisions – that is, as a safety measure. We now live in a world in which all Zionists are accused of being supporters of, and advocates for genocide. However unfounded those allegations, the removal of the Attorney General’s consent may result in countless attempts to criminalize pro-Zionist activities.
Finally, various Attorneys General have consented to a number of hate propaganda charges being laid – all of which ALCCA monitors – although they receive relatively little attention.
I acknowledge that not enough such charges are being authorized and that the process leading to the Attorney General’s consent can be cumbersome and far too lengthy. As well, one hate propaganda offence, incitement of hatred likely to lead to a breach of the peace, does not require the Attorney General’s consent and should be utilized more often.
However, in my view, rather than remove the requirement for the Attorney General’s consent in other hate propaganda cases, the better answer is for the federal and provincial governments, through their Attorneys General and Solicitors General to show their commitment to the laying of charges in appropriate cases, and to create an expeditious process for seeking and obtaining the Attorney General’s consent.
Conclusion: I oppose this provision.
What is Missing from the Legislation
Description: It was rumoured that the federal government might criminalize the glorification of terrorism, addressing a gap in existing anti-terrorism legislation. Advocates pointed to such legislation in the United Kingdom. It was not included in the federal government’s new legislation.
Analysis: I am unconvinced that the “glorification” of terrorism would necessarily survive constitutional scrutiny based on freedom of expression concerns. The United Kingdom does not have the same constitutional guarantees we have in Canada. However, there is a need to address the existing state of anti-terrorism provisions.
The Criminal Code contains many terrorism offences. They are extremely complicated and difficult to read or understand. The extent to which they apply to those who express material support for designated terrorist groups is unclear. Freedom of expression does not protect threats of violence; nor should it protect expression that wilfully promotes terrorist activities or the activities of terrorist groups designated under the Criminal Code.⁴
Parliament should create a new offence (wilful promotion of terrorism) that addresses extremists who publicly promote terrorist activities or the activities of a terrorist group.
More specifically, such an offence would criminalize the conduct of those who, by communicating statements other than in private conversation, wilfully promote terrorist activities or the activities of a terrorist group. Such a provision would be a permissible infringement on speech for the reasons already indicated and because the Supreme Court has already determined that wilful promotion of hatred against an identifiable group (containing precisely the same core language) is a constitutionally valid offence.
This offence would focus on promotion of and support for terrorist activities or terrorist groups (already defined in the Criminal Code), rather than requiring a determination of whether that promotion or support is based upon hatred directed against an identifiable group, such as Jews.
Conclusion: The federal government’s proposed legislation represents a first step, but only a first step. It should be amended or added to in accordance with the recommendations contained in this article. The legislation must also be accompanied by a demonstrated will to enforce existing laws.
As well, this legislation should be only one piece of a larger strategy to tackle antisemitism and other forms of hatred – through addressing, for example, the presence of political, religious and ideological extremists in Canada, terrorist financing and money laundering, immigration and detention.
I and others are prepared to work with governments and law enforcement to make this happen.
We need informed members of our community and our allies to speak out simply and collaboratively:
We support the creation of a new hate offence
We support the creation of a new offence of displaying terror symbols with amendments to the currently proposed language
We support keeping the current offence of mischief motivated by bias, prejudice or hate
We do not support the removal of the Attorney General’s consent for hate propaganda offences
We support the creation of a new offence of wilful promotion of terrorist groups and activities
We support provincial and municipal bubble legislation
Endnotes
These tools are not confined to hate-specific offences, such as hate propaganda offences, but conventional offences such as intimidation (particularly relating to the blockage of roads and intersections), unlawful assembly, wearing a disguise during an unlawful assembly or while committing an indictable offence, and interference with the lawful use, operation and enjoyment of property (mischief).
These include mischief (s. 430(1)) which involves any interference with the lawful use, enjoyment and operation of property, disturbing religious worship or certain meetings (s. 176(2)), and the current offence of intimidation (s. 423(1)).
I have modified my position on this issue. I still believe that there is little to distinguish the proposed statutory definition and the existing jurisprudence. However, utilizing the precise formulation of Chief Justice Dickson in Keegstra would eliminate any concern that the test has been changed. He stated that “hatred” connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. He also made it clear that this emotion is stronger than distain or dislike. The proposed definition states that hatred is the emotion that involves detestation or vilification and that is stronger than disdain or dislike.
I need not discuss here whether promotion of and support for terror survives constitutional scrutiny because threats of violence are exempt from s. 2(b) freedom of expression Charter protection or because criminalizing the promotion of and support for terror would represent a justified limit on expression under s. 1 of the Charter. See R. v. Khawaja, [2012] 3 SCR 555; Bracken v. Fort Erie (Town) (2017), 137 OR (3d) 161 (CA).
About the Author
Mark Sandler, LL.B., LL.D. (honoris causa), ALCCA’s Chair, is widely recognized as one of Canada’s leading criminal lawyers and pro bono advocates. He has been involved in combatting antisemitism for over 40 years. He has lectured extensively on legal remedies to combat hate and has promoted respectful Muslim-Jewish, Sikh-Jewish and Black-Jewish dialogues. He has appeared before Parliamentary committees and in the Supreme Court of Canada on multiple occasions on issues relating to antisemitism and hate activities. He is a former member of the Ontario Human Rights Tribunal, a three-time elected Bencher of the Law Society of Ontario, and recipient of the criminal profession’s highest honour, the G. Arthur Martin Medal, for his contributions to the administration of criminal justice.