The Liberals have introduced Bill C-9, their latest attempt to police so-called “hate speech.” The mischief runs so deep, and through so many channels, that one hardly knows where to begin the excavation. Best, then, to return to first principles. For it is there, deep in the bedrock of our Canadian legal inheritance, that Bill C-9 reveals itself as a rupture with centuries of jurisprudential wisdom.The Common Law rests on two ancient pillars. The first is actus reus — the requirement that a person commit an act prohibited by statute. It embodies the principle of legality: nullum crimen sine lege — no crime without law. This maxim, inherited from Rome, remains the chief bulwark against arbitrary power.The second pillar is mens rea — the guilty mind that gives moral meaning to human action. Both elements must converge and be proven beyond a reasonable doubt before the state may justly brand a person a criminal. Hatred, within this framework, has never been a stand-alone crime. It may aggravate an offence or illuminate motive, but absent a deed, hatred is not punishable. The thought must crystallize into conduct.Dr. Johnson once rebuked an intrusive question with: “You have not yet travelled my mind.” The Common Law has long shared this instinctive insight. The interior landscape of human thought is not the proper domain of criminal sanction. However detestable the sentiment, unless thought manifests in action, the law has no foothold..Nor does hatred fit comfortably into the traditional taxonomy of mens rea, which recognizes intention, knowledge, recklessness, and negligence. Hatred lags far behind these precise categories. It is too diffuse, too subjective, to ground criminal liability.Here we approach the real animating purpose of Bill C-9: not to fill some gap in legal protection for vulnerable groups, but to expand the reach of criminal sanction into the realm of opinion, sentiment, and interior belief. Hatred lacks both the specific mens rea of criminal intent and the actus reus that anchors offences in the observable world. It lives in the domain of subjective interpretation.History furnishes many examples of figures who were despised or publicly reviled, yet were not prosecuted merely because they aroused contempt: heretics, pamphleteers, political agitators. That earlier eras — many of them illiberal by modern standards — hesitated to criminalize mere hatred should give us pause. When a government seeks to punish not what citizens do but what officials believe they feel, the line between law and ideology thins dangerously.Bill C-9 creates a new definition of hatred as involving “detestation or vilification”. Since when are emotions crimes? As for vilification — harsh or damaging speech — that has long been addressed by defamation law. One suspects the answer lies not in legal necessity but in a desire to regulate opinion under the guise of regulating harm..For a millennium, the Common Law has held that malevolence must hitch itself to a prohibited act before the state may intervene. Words alone, however offensive, have not sufficed. The wisdom in this distinction becomes clear when we consider the fate of controversial speakers.In 1968, Enoch Powell delivered his notorious “Rivers of Blood” speech. Reviled in Parliament and the press, dismissed from the Shadow Cabinet, condemned across the political spectrum — Powell nonetheless committed no crime under English law. His remarks were inflammatory, perhaps reckless, but they did not incite violence or direct harm. The social value of protecting free expression outweighed the offence he caused.Could Powell speak today? Under Bill C-9, his speech would almost certainly constitute the “wilful promotion of hatred.” No act would be needed. Words, transmitted through any medium, would suffice. The actus reus evaporates; the crime consists in the expression of a disfavoured thought.Across the Atlantic, Britain now records “non-criminal hate incidents” (NCHIs) — legally permissible speech catalogued in police databases because officers believe it may reflect hostility. No prosecution follows, yet the citizen acquires a quasi-official record of ideological deviance. The implications for employment and public life are profound. A parallel system of social control operates beneath the threshold of formal criminal punishment..This brings us to the architects of the legislation. Justice Minister Sean Fraser — whose legal experience includes a brief stint drafting commercial agreements aided by artificial intelligence — does not inspire confidence as the steward of Canada’s criminal law. Yet he assures us the government can reliably discern criminal intent in our inner thoughts. One might be forgiven for scepticism.The deeper danger, however, transcends the momentary ambitions of any government. Bill C-9 represents an attack on the very structure of the Common Law, that hard-won system designed to restrain arbitrary power. The Common Law has always recognized that criminal law is the state’s harshest tool and must be used sparingly. It has understood that thoughts, however loathsome, are not crimes. It has insisted that the boundary between regulating conduct and policing belief must be zealously guarded.When the state criminalizes thoughts rather than deeds — when prosecutors may infer criminality from mere expression — we abandon the principles that have protected liberty since Magna Carta. We trade the sturdy protections of actus reus and mens rea for the soft authoritarianism of enforced social harmony..The fight against Bill C-9 is not a fight to protect hatred. It is a fight to preserve our legal inheritance: the belief that the inner life of the citizen is beyond the reach of government, that crimes require actions, and that the burden of proof rests squarely with the state. If George Orwell were still with us, he might receive a Sunday visit from the police, for writing that "To die hating them (the government), that was freedom.” He might not be arrested for it, but under Sean Fraser's law, he would most certainly be monitored and cautioned for writing it. If we want to remain a free society, governed by law instead of the unpredictable feelings of bureaucrats and police, we must stick to certain principles: that crimes require actions, not just thoughts; that the burden of proof always falls on the state; and that the inner life of the citizen is beyond the lawful reach of criminal punishment.These principles are not antiquarian curiosities. They are the living ramparts of liberty. And they deserve our most strenuous defence.
