Hate, Law, and Limits: Constitutional Boundaries for Bill C-9’s Hate Crime Reforms

By AL

Introduction:

Each year, thousands of hate-motivated incidents are reported to police in Canada.[i] Bill C-9 responds to this reality and raises a familiar constitutional question: how far can Parliament go in restricting hate symbols while still respecting freedom of expression under the Charter of Rights and Freedoms?

In R v Keegstra, the Supreme Court upheld the Criminal Code offence of wilfully promoting hatred because it targets extreme, harmful expression and includes narrow definitions and safeguards.[ii] In Saskatchewan (Human Rights Commission) v Whatcott, the Court held that only expression that exposes vulnerable groups to detestation and vilification falls outside Charter protection, and that laws aimed at combatting insult, ridicule, or offence go too far.[iii]

This post is the first in a three-part series on recent criminal law reforms in Canada. Here, I focus on Bill C-9’s proposed ban on hate symbols and ask whether this new approach meets the constitutional standards set in Keegstra and Whatcott. I outline the legal context, describe the bill’s key provisions, and assess whether the reforms risk overreach or can withstand Charter scrutiny. In later posts, I will turn to bail and sentencing reform.

Background and Legal Context:

Canada enacted hate propaganda laws in 1970 based on the findings of the Special Committee on Hate Propaganda, with key offences listed in sections 318 to 320.1 of the Criminal Code.[iv] These provisions prohibit advocating or promoting genocide, inciting hatred publicly, and wilfully encouraging hatred against identifiable groups, a term defined broadly to ensure extensive protection.[v] Genocide, as outlined in section 318(2), includes both killing members of a group and creating destructive conditions for them.[vi] The law also addresses antisemitism specifically, making it a crime to deny or downplay the Holocaust and allowing courts to seize hate propaganda materials.[vii] Both indictable and summary conviction offences are covered, and most prosecutions require the consent of the Attorney General, with a conviction hinging on proof that the accused communicated hateful statements and intended to promote hatred.[viii]

These Criminal Code provisions are only a starting point for understanding how Canadian law addresses hate. The Supreme Court of Canada plays a decisive role in setting the constitutional boundaries for limiting expression. Section 2(b) of the Charter provides that everyone has the fundamental freedoms of thought, belief, opinion, and expression, including freedom of the press and other media of communication.[ix] However, the Court has recognized that this freedom, though fundamental, is not absolute. By interpreting section 2(b) in light of the reasonable limits allowed under section 1, the Court determines when Parliament may restrict expression in response to hate.

The Supreme Court’s leading cases illustrate these boundaries. In Keegstra, the Court considered whether the Criminal Code offence of wilfully promoting hatred was constitutional.[x] The majority held that while section 319(2) infringes freedom of expression, the infringement can be justified.[xi] The Court concluded that the law serves a pressing and substantial objective, uses narrow definitions, and includes safeguards for legitimate speech.[xii] In Whatcott, the Court confirmed that only the most extreme and harmful forms of expression, those that expose groups to detestation and vilification, can be limited under the Charter.[xiii] Laws that go after mere insult, ridicule, or offense do not meet constitutional standards and risk suppressing protected speech.[xiv]

Bill C-9’s Proposed Reforms:

Bill C-9 marks a substantial shift in how Canada addresses hate-motivated conduct, introducing several new criminal offences and changes to the Criminal Code in response to calls for stronger protections for vulnerable groups. The bill makes it a crime to wilfully promote hatred against an identifiable group by publicly displaying certain symbols, specifically those principally used by or associated with listed terrorist entities.[xv] Notably, the legislation also explicitly prohibits the Nazi swastika, SS bolts, and extends this ban to any symbol so closely resembling the listed symbols that it is likely to cause confusion.[xvi] This offence targets displays that are intended to promote hatred and occur in public spaces, focusing on conduct meant to have a broad negative social impact. The reforms are motivated by a documented rise in hate crimes and the public display of extremist imagery, including recent incidents of antisemitic vandalism and protests against 2SLGBTQI communities, which have drawn national concern and demands for government action.[xvii]

Beyond hate symbols, Bill C-9 creates several other significant offences related to hate-motivated conduct. The bill introduces a stand-alone hate crime offence in new section 320.1001.[xviii] This offence applies when a person commits any existing offence under the Criminal Code and does so with a motivation based on hatred of an identifiable group, including characteristics such as race, religion, sexual orientation, or gender identity or expression.[xix] A conviction under section 320.1001 raises the maximum penalty for the underlying “included offence” to five, ten, fourteen years, or life imprisonment, depending on the original maximum sentence for that offence.[xx] At the same time, section 718.2(a)(i) remains in place, so hate motivation continues to operate as an aggravating factor at sentencing even when a stand-alone hate crime charge is not pursued.[xxi]

Bill C-9 also changes the role of the Attorney General in hate propaganda prosecutions. Clauses 3 and 4 repeal Criminal Code subsections 318(3) and 319(6), which currently require Attorney General consent before hate propaganda charges can be laid.[xxii] After repeal, these charges will proceed under provincial and territorial prosecution policies, without a federal consent requirement acting as a single national gatekeeper. This change removes a centralized check that was intended to promote greater uniformity in charging decisions across Canada.[xxiii]

Potential Challenges of Hate Symbols in Bill C-9:

Although Bill C-9 aspires to protect communities from the harm of hate symbols, its ambitious approach also places longstanding Charter principles in the balance. The decision to criminalize certain displays of symbols, rather than just hate speech, amplifies the tension between Parliament’s duty to shield vulnerable groups and its obligation to preserve freedom of expression under the Charter. As the bill moves through Parliament, its ultimate effectiveness and constitutionality will depend not just on its intentions, but on how its language, scope, and enforcement interact with Supreme Court jurisprudence. To understand whether Bill C-9 truly achieves the balance it seeks, it is necessary to examine the specific legal uncertainties and practical risks that could arise if these reforms become law.

Challenge One - Vagueness:

 While the bill lists specific symbols, such as Nazi swastikas, SS bolts, and those associated with terrorist organizations, it also extends to “any symbol so similar that it is likely to cause confusion”.[xxiv] This phrase does not offer a clear, objective standard and leaves both individuals and law enforcement unsure about which displays are prohibited. In constitutional terms, the lack of an objective standard raises two related issues: vagueness and overbreadth. Vagueness asks whether a reasonable person can tell in advance what conduct is illegal. Overbreadth asks whether the law captures conduct that does not actually advance Parliament’s objective. Keegstra treats both problems as part of the section 1 proportionality analysis, recognizing that unclear or overly broad limits can chill protected expression.[xxv] In practice, this means that a person who uses a prohibited symbol as part of a protest or critical artwork cannot know with confidence whether their conduct is criminal. Instead, police and prosecutors must make case-by-case judgments about “similarity” and “confusion”, which increases the risk that legitimate critical expression could be chilled along with the hateful displays Parliament is trying to target.

Challenge Two - Exceptions and Public Interest:

Bill C-9 attempts to mitigate some of the inadvertent censorship risks by including exceptions for displays made for journalism, education, religion, or art.[xxvi] However, the bill specifies that these exceptions only apply if the display is not contrary to the public interest.[xxvii] As Keegstra and Whatcott demonstrate, section 1 scrutiny focuses closely on whether Parliament has used clear language and crafted workable safeguards for valuable expression.[xxviii] Against this backdrop, the public interest qualifier is open to broad interpretation and leaves considerable discretion in the hands of police, prosecutors, and ultimately the courts.

In a section 1 analysis, a court would likely ask whether the public interest qualifier is consistent with the protective purpose of the journalism and education exceptions. However, until courts provide clearer guidance on how this qualifier should be applied, institutions and individuals are likely to adopt a cautious, risk-averse approach. In practice, these practices would mean avoiding important historical or educational material that could provoke controversy. Over time, this pattern could diminish public understanding of the very history and context needed to confront hate. By relying on an ambiguous exception standard, Bill C-9 risks chilling legitimate expression and weakening the protection it is meant to create.

Challenge Three - Intent and Enforcement:

Another challenge arises from the bill’s requirement that prosecutors must prove an intent to promote hatred.[xxix] On one level, this mens rea requirement narrows the offence and helps focus criminal liability on genuinely hate-motivated conduct. Both Keegstra and Whatcott treat this kind of mental element as an important factor in upholding limits on expression as proportionate under section 1.[xxx] At the same time, intent is often difficult to establish in symbol cases. The meaning of a symbol can depend heavily on context, audience, and setting.

Police, prosecutors, and courts must decide whether a display was meant to endorse hatred, to criticize it, or to refer to it in a historical or artistic way. These judgments are contestable and may vary across cases and jurisdictions. In this environment, some cases may be pursued while others are not, potentially on similar facts. Individuals and institutions may also decide to avoid using contentious symbols in teaching, commemoration, or protest to avoid this uncertainty. This kind of self-censorship risks thinning out public debate and reducing opportunities to confront hateful ideas directly.

Conclusion: Balancing Protection and Freedom

Bill C-9 marks an important moment in Canada’s effort to address hate while still protecting freedom of expression. It seeks to reduce the harm caused by the public display of hate symbols. The difficulty lies in how Parliament intends to reduce this harm. By moving from regulating words to regulating symbols, the bill steps into less familiar territory and exposes problems of clarity, exceptions, and enforcement.

A constitutionally careful hate-symbol law would need to respond to those concerns directly. It would define “hatred” and the covered symbols in clear, narrow terms. It would require a specific intent to promote hatred, not just an intent to shock, provoke, or offend. It would include precise, workable exceptions for education, journalism, religion, and art, without vague qualifiers that blur when those exceptions apply. It would also support reasonably consistent enforcement across the country, so similar conduct does not lead to sharply different outcomes. A law built on these elements would stand a stronger chance of surviving Charter scrutiny while still responding to the harms associated with hate symbols.

Endnotes

[i] Statistics Canada, Police‑reported hate crime in Canada (Ottawa: Government of Canada, 2025), online: < https://www150.statcan.gc.ca/n1/daily-quotidien/250325/dq250325a-eng.htm>.

[ii] R v Keegstra, 1990 CanLII 24 (SCC) at pages 786 to 788.

[iii] Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at para 46.

[iv] Criminal Code, RSC 1985, c C-46, s 318 to s 321.

[v] Criminal Code, RSC 1985, c C-46, s 318 to s 319.

[vi] Criminal Code, RSC 1985, c C-46, s 318(2).

[vii] Criminal Code, RSC 1985, c C-46, s 318(2.1).

[viii] Criminal Code, RSC 1985, c C-46, s 319(6)

[ix] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 2(b).

[x] R v Keegstra, 1990 CanLII 24 (SCC) at page 715.

[xi] R v Keegstra, 1990 CanLII 24 (SCC) at pages 786 to 788.

[xii] Ibid.

[xiii] Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at para 46.

[xiv] Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at paras 90 to 94.

[xv] Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places), 1st Sess, 45th Parl, 2025, cl 2.2(a).

[xvi] Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places), 1st Sess, 45th Parl, 2025, cl 2.2(b).

[xvii] Department of Justice, Canada introduces legislation to combat hate crimes, intimidation, and obstruction (Ottawa: Government of Canada, 2025), online: <https://www.canada.ca/en/department-justice/news/2025/09/canada-introduces-legislation-to-combat-hate-crimes-intimidation-and-obstruction.html>.

[xviii] Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places), 1st Sess, 45th Parl, 2025, cl 320.1001(1).

[xix] Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places), 1st Sess, 45th Parl, 2025, cl 320.1001(3).

[xx] Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places), 1st Sess, 45th Parl, 2025, cl 320.1001(4).

[xxi] Criminal Code, RSC 1985, c C-46, s 718.

[xxii] Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places), 1st Sess, 45th Parl, 2025, cl 3 and 4.

[xxiii] Ibid.

[xxiv] Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places), 1st Sess, 45th Parl, 2025, cl 4(2.2)(c).

[xxv] R v Keegstra, 1990 CanLII 24 (SCC) at page 737 to 740.

[xxvi] Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places), 1st Sess, 45th Parl, 2025, cl 3.2(a).

[xxvii] Ibid.

[xxviii] R v Keegstra, 1990 CanLII 24 (SCC) at page 781; Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at paras 138 to 144.

[xxix] Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places), 1st Sess, 45th Parl, 2025, cl 2.2.

[xxx] R v Keegstra, 1990 CanLII 24 (SCC) at page 763; Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at paras 141 to 144.