Hate speech laws in Canada include provisions in the federal Criminal Code, as well as statutory provisions relating to hate publications in three provinces and one territory.
The Criminal Code creates criminal offences with respect to different aspects of hate propaganda, although without defining the term "hatred". Those offences are decided in the criminal courts and carry penal sanctions, such as fines, probation orders and imprisonment.
Alberta, British Columbia, Saskatchewan and the Northwest Territories have created civil sanctions for hate publications in their human rights legislation. Those claims are resolved through administrative tribunals or the civil courts, and can involve civil remedies such as damages or injunctive relief.
The Supreme Court of Canada has rejected constitutional challenges to the hate propaganda offences in the Criminal Code, and has also rejected challenges to the hate publication provisions in human rights legislation. The Court has ruled that while the provisions restrict freedom of expression, the restrictions are justifiable under section 1 of the Canadian Charter of Rights and Freedoms.
Meaning of "hatred"
The various laws that refer to "hatred" do not define it. The Supreme Court has explained the meaning of the term in various cases that have come before the Court. For example, in R v Keegstra, decided in 1990, Chief Justice Dickson for the majority explained the meaning of "hatred" in the context of the Criminal Code:
In 2013, Justice Rothstein, speaking for the unanimous court, explained the meaning of "hatred" in similar terms, in relation to the Saskatchewan Human Rights Code:
Canadian Charter of Rights and Freedoms Laws dealing with hatred have to be measured against the Canadian Charter of Rights and Freedoms, which is part of the Constitution of Canada. Section 2 of the Charter protects freedom of expression, including freedom of the press, and also freedom of religion. Section 1 of the Charter guarantees the rights and freedoms set out in the Charter, but also recognizes that the rights and freedoms are subject to reasonable limits, provided the limits are prescribed by law and "can be demonstrably justified in a free and democratic society."
Hatred offences of the Criminal Code
Origin of the provisions
In the early 1960s, concerns were raised by various public groups (such as the Canadian Jewish Congress), by some media outlets, and by some politicians (such as John Diefenbaker, then Leader of the Opposition) about the rise of hate publications in Canada.William Kaplan, "Maxwell Cohen and the Report of the Special Committee on Hate Propaganda", in Law, Policy, and International Justice: Essays in Honour of Maxwell Cohen, McGill-University Press, 1993. The federal government of Prime Minister Lester Pearson responded by appointing a committee in January 1965 to study the issue and make recommendations about legislation: the Special Committee on Hate Propaganda in Canada, commonly referred to as the "Cohen Committee" after its chair, Maxwell Cohen.
The Minister of Justice, Guy Favreau appointed the seven members of the committee: Maxwell Cohen, Dean of Law at McGill University; Dr. James A. Corry, Principal of Queen's University; Father Gérard Dion, professor of industrial relations at Université Laval; Saul Hayes, QC, executive vice-president of the Canadian Jewish Congress; Mark MacGuigan, then a professor of law at the University of Toronto; Shane MacKay, executive editor of the Winnipeg Free Press; and Pierre-Elliott Trudeau, then a professor of law at the Université de Montréal. In Keegstra, Chief Justice Dickson described this group as "a particularly strong committee".
In 1966, the committee made its report. It recommended that Parliament enact legislation to combat hate speech and genocide. The Pearson government promptly introduced the legislation, proposing three new offences: advocating genocide; publicly inciting hatred in a way likely to lead to a breach of the peace; and wilfully promoting hatred. The bill then took four years to wend its way through Parliament. The bill finally passed in 1970, under the government of Pierre Trudeau, by that time Prime Minister of Canada.An Act to amend the Criminal Code, SC 1969–70, c. 39, adding s. 267A, s. 267B and s. 267C to the Criminal Code (now s. 318, s. 319 and s. 320 of the ).
Outline of the provisions
The Criminal Code is a federal statute passed by the Parliament of Canada, which has exclusive constitutional jurisdiction over the criminal law in Canada. There are three separate hatred-related offences: section 318 (advocating genocide), section 319(1) (publicly inciting hatred likely to lead to a breach of the peace), and section 319(2) (wilfully promoting hatred). In addition to the three offences, there are provisions which authorize the courts to order the seizure of hate propaganda, either in physical formats (section 320) or in electronic formats (section 320.1).
For all three offences, there is no minimum punishment. Although imprisonment is a possible sentence, so too are punishments such as probation or fines.
There are two important phrases which are used in the different provisions: "identifiable group" and "hate propaganda". The terms have the following meanings:
"identifiable group", used in the three offences in s. 318 and s. 319, is defined by s. 318(4) as "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation, gender identity or expression, or mental or physical disability." (When originally enacted in 1970, the definition was limited to "colour, race, religion or ethnic origin", but it has been expanded over the years, most recently in 2017 by the addition of gender identity and expression. "hate propaganda", used in s. 320 and s. 320.1, is defined by s. 320(8) to mean "any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offence under section 319."
Section 318: Advocating genocide
Section 318 makes it an offence to advocate or promote genocide, which is defined as killing members of an identifiable group, or inflicting conditions of life on a group which are calculated to bring about the physical destruction of the group. The offence is indictable, and carries a maximum penalty of imprisonment not exceeding five years. There is no minimum punishment. The consent of the provincial Attorney General is required for a charge to be laid under this section.
Section 319: Inciting or promoting hatred
Section 319(1): Publicly inciting hatred—makes it an offence to communicate statements in a public place which incite hatred against an identifiable group, where it is likely to lead to a breach of the peace. The Crown prosecutor can proceed either by indictment or by summary process. The maximum penalty is imprisonment of not more than two years. There is no minimum punishment.
Section 319(2): Promoting hatred—makes it an offence to wilfully promote hatred against any identifiable group, by making statements (other than in private conversation). The Crown prosecutor can proceed either by indictment or by summary process. The maximum penalty is imprisonment of not more than two years.
Section 319(3): Four defences—provides specific defences to the offence of promoting hatred. A person will not be convicted if: the person establishes that the statements communicated were true; in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds the person believed them to be true; or in good faith, the person intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
Sections 320, 320.1: Confiscation of hate propaganda
Section 320 allows a judge to confiscate publications which appear to be hate propaganda, after due notice to the apparent owner of the material and the owner of the premises where the material is found, and after a hearing.
Section 320.1 allows a judge to make similar orders with respect to confiscation of hate propaganda stored electronically, and to order that hate propaganda which is made available to the public by electronic means be taken down.
Cases under the Criminal Code
Section 318: Advocating genocide
Mugesera v Canada (Minister of Citizenship and Immigration) (2005)
The Supreme Court of Canada considered the meaning of the offence of advocating genocide (section 318) in a deportation case, Mugesera v. Canada (Minister of Citizenship and Immigration). The individual was an immigrant from Rwanda. The Court found that he was a member of a hard-line Hutu party, and that he had made a speech during the Rwandan genocide, calling for his listeners to kill members of the Tutsi ethnic group. The Court found that would constitute the offence of advocating genocide under s. 318, if it had occurred in Canada, and therefore met the legal standard for deporting the individual.
Section 319(2): Wilfully promoting hatred
R v Buzzanga and Durocher (1979)
The case of R v Buzzanga and Durocher was one of the first cases to consider this offence had unusual facts. The accused were both French-Canadian. During a heated debate in their municipality about the construction of a school to be operated in French, they circulated a pamphlet containing anti-French-Canadian statements. Upon being charged with the offence of wilfully promoting hatred, their defence was that they circulated the pamphlet to expose prejudice in the community against French-Canadians. The Ontario Court of Appeal held that in the unusual circumstances, it was not clear if they had "wilfully" intended to promote hatred. The Court set aside their convictions and ordered a new trial.R v. Buzzanga and Durocher, 1979 CanLII 1927 (ON CA).
R v Keegstra (1990)
R v Keegstra is the major Supreme Court decision on the offence of promoting hatred. The accused was a high school teacher. In his social studies class, he taught his students extreme anti-Semitic views. The students were expected to repeat this material on their examinations. If they failed to do so, their marks suffered.
The accused was charged with promoting hatred against the Jewish people. He challenged the constitutionality of the offence of promoting hatred under s. 319(2), arguing that it infringed his freedom of expression under s. 2(b) of the Charter. He also challenged the requirement under s. 319(3)(a) that he was required to prove the truth of his statements, arguing that placing the onus of proof on him infringed the presumption of innocence guaranteed by s. 11(d) of the Charter. He was successful in those arguments at trial and on appeal to the Alberta Court of Appeal. The Crown appealed to the Supreme Court.
By a 4–3 majority, the Supreme Court dismissed his constitutional challenges. Speaking for the majority, Chief Justice Dickson agreed that the offence of promoting hatred infringed the guarantee of freedom of expression, but upheld the infringement as a reasonable limit under s. 1 of the Charter. He also agreed that the reverse onus of proof in s. 319(a) infringed the presumption of innocence, but that placing the onus on the accused to prove the truth of his statements was a reasonable restriction under s. 1. He therefore set aside the acquittal and ordered a new trial.
Speaking for the dissent, Justice McLachlin (as she then was) agreed with the Chief Justice that the two provisions infringed s. 2(b) and s. 11(d). However, she did not think that the provisions could be justified under s. 1. She would have dismissed the appeal.
R v Andrews (1990)