The Legalities of the Religious Exemption Defence – Correcting Misconceptions
- Mark Sandler
- Dec 12, 2025
- 4 min read
As Bill C-9, the Combatting Hate Act, is debated at the House of Commons Justice Committee and in public, one casualty appears to be legal and factual accuracy. The most recent debate centred on an amendment in Committee to remove the “religious exemption” applicable to wilful promotion of hatred, an offence whose constitutionality was upheld as a reasonable limit on freedom of expression 35 years ago.
At one end of the spectrum, it is contended that the religious exemption must go because it shields all religion-based hatemongers from criminal liability. Untrue. At the other end of the spectrum, it is contended that removal of the religious exemption represents an attack on freedom of religion and those who express religious views. Also untrue.
Here are the facts. And the applicable law.
It is a crime to wilfully promote hatred against an identifiable group. The offence, through use of the words “wilful”, “promote”, and “hatred” sets a very high threshold of proof that must be overcome before speech is criminalized. Only the most extreme forms of speech are subject to prosecution.
The offence sets out four available defences. One of those defences is the so-called religious exemption. It provides that "no one shall be convicted of this offence if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject or an opinion based on a belief in a religious text.”
All four defences, including this one, were inserted to reinforce Parliament’s commitment not to limit our guaranteed freedoms except to the extent necessary to protect communities from the real dangers associated with hate speech.
The Supreme Court of Canada made it clear that once the prosecution proves that someone has wilfully promoted hatred against an identifiable group, it is virtually impossible for any of the good faith defences to be successfully utilized. Good faith is inconsistent with wilful promotion of hatred. The defences were inserted by Parliament out of an abundance of caution to reinforce the narrow scope of wilful promotion of hatred (now well established) and provide a strong signal that good faith activities will not be swept into the ambit of the offence.
In the context of the religious exemption, it is virtually inconceivable that anyone can successfully claim that they were merely expressing, in good faith, an opinion on a religious topic once it is determined that they wilfully promoted hatred.
For example, the imam who publicly prayed for all Zionists to be killed in Montreal was guilty, in my view, of advocating genocide, incitement of hatred, and wilful promotion of hatred. His conduct could not reasonably be regarded as a “good faith attempt to establish by argument an opinion on a religious subject.” There has never been a case – not one – in which the religious exemption has successfully been invoked to justify an acquittal.
It follows that the religious exemption does not immunize hatred spewed by a religious figure or someone preaching hate from a pulpit. Its presence or removal is unlikely to make the slightest bit of difference in any prosecution.
However, perception sometimes differs from reality.
The presence of this defence has been used, at times, as an excuse for non-prosecution. As I explained in my testimony to the House of Commons Justice Committee, people claimed that the imam described earlier was protected by the religious exemption or freedom of religion. Nothing could be further from the truth. Indeed, two of the offences he committed (advocating genocide and public incitement of hatred likely to lead to a breach of the peace) don’t even have the religious exemption defence. The reason why is obvious. No religious discussion can justify advocating genocide against a protected group. Or inciting hatred likely to lead to violence.
So, I sympathize with those who have advocated for the removal of a defence that can be misused to justify inaction against hate speech. On the other hand, I cautioned that removal of the defence, however legally irrelevant, would reopen a constitutional debate over an offence that has been used sparingly but effectively for decades – this is a debate we don’t need.
Indeed, what I predicted is already happening. It is being claimed that the removal of the religious exemption places freedom of religion and freedom of speech at risk. This claim is misconceived. Freedom of religion is fully protected under s. 2(a) of the Canadian Charter of Rights and Freedoms and has been broadly interpreted by our highest court. Our religious freedoms are unaffected by the presence or absence of the good faith religious exemption defence to hate speech.
Unlike Quebec, in relation to its provincial secularization legislation, which does impact on freedom of religion, the federal government is not invoking the notwithstanding clause to override our fundamental freedoms. Nor need it ever do so since the religious exemption defence is not the source of our religious freedom.
I and others have joined forces in supporting Bill C-9 if appropriate amendments are made to strengthen the legislation and to ensure it is balanced and fair. I and others have also proposed that a new offence of wilful promotion of terrorist activities is needed. Indeed, such an offence would represent the most important change that should be made to existing laws that are otherwise largely adequate, with some enhancements C-9 incorporates, if the will exists to enforce them.
The religious exemption debate has little to do with the contemplated legislation which did not propose any change to the core wilful promotion of hatred provision. It is a distraction. It is time that all Parliamentarians support the legislation, with appropriate amendments, to enhance the tools already available to police to address hate.
The Jewish community – indeed, all Canadians of good will – should not tolerate an impasse that prevents appropriate legislation to be implemented.
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.