Legal Restriction on Hate Speech in Canada
Hate speech is proscribed in Canada by the Criminal Code and, in three provinces, by human rights acts.
1. Criminal Code
The relevant sections of the Criminal Code say:
Public incitement of hatred
319 (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.Wilful promotion of hatred
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.[1]
A Nova Scotia decision, R. v. A.B.[2] that concerned an individual and two friends who spray painted racist slogans on a variety of surfaces near Dartmouth Nova Scotia, describes Canadian law with respect to hate speech:
[11] Sections 319(1) and 319(2) of the Criminal Code define two different offences. The first one, under subsection (1) involves statements made in a public place, inciting hatred for an identifiable group and likely to result in a breach of the peace. The second offence, under subsection (2), the one with which A.B. has been charged, involves statements made, other than in private conversation, that willfully promote hatred of an identifiable group.
[12] The first offence suggests an immediate danger. It does not contain the word “willfully”. The requirement is only that the incitement is likely to lead to a breach of the peace. There is no requirement that the person intend to promote or incite anything. That is the section under which the infamous cross burning case in Nova Scotia was prosecuted.
[13] The presence of the word “willfully” in subsection (2) is significant … The person must have intended that the statements as communicated, promote hatred. The person must have intended that the statements as communicated, promote hatred. There must be either a conscious purpose for the promotion of hatred or the person must have foreseen that the promotion of hatred was almost certain to result.
[14] That intent can be proven by showing “willful blindness”. That legal concept means that the person “knew or strongly suspected” that inquiry on his part would result in his having knowledge he wished to avoid. In this context it would mean that a person who willfully promotes hatred is one who has that intent directly or who makes the decision to remain ignorant because he would otherwise know his actions would have the effect of promoting hatred.
[15] That intent is what sets the bar relatively high and makes the legislation a legitimate limitation on speech. It is unfortunate that concept of freedom of speech is so often sullied by invoking it in defense of crude epithets. At the same time, it is not illegal simply to say things that are grossly rude, wildly offensive, blatantly false, callously hurtful, or even disgustingly hateful. The law does not make the use of specific words or symbols criminal. Society’s condemnation of those things comes from sources other than the criminal law…
[16] It should be noted that section 319 is not the only section of the Criminal Code that addresses racially motivated actions. When an act that is otherwise criminal is shown to have been 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 any other similar factor, that is an aggravating circumstance. Section 718.2 allows the expression of the condemnation of criminal acts motivated by racial hatred for example to take the form of longer or more restrictive sentences.
[17] Acts of racial hatred are not necessarily hate crimes. Physically attacking a person because of his race or sexual orientation is an assault. The sentencing of that crime must express public abhorrence of the action and our collective refusal to countenance it. A racially motivated attack might be called a hate crime and the label seems to make a lot of linguistic sense. It is not a hate crime under s. 319(2) of the Criminal Code. Hate crimes in that sense, involve the promotion of hatred, not the expression or manifestation of it.
[18] The promotion of racism, anti-Semitism or homophobia to name only three examples, as outrageously offensive as they are to any right thinking person, are not in themselves criminal acts. Racism is not a crime. It is a curse, but not a crime. Even the promotion of racism is protected by free speech. What is criminal is the promotion of hatred.
[19] The law distinguishes between hatred and racism. On an intuitive level they seem to be a lot alike. There is a legal difference. Hatred is an intense and destabilizing emotion. It goes beyond racism. It may naturally develop from the ignorance and fear that underlie and drive racism…Hatred takes it a step further. It is intense, aggressive and dangerous. Hatred is not simply disrespect but vilification and detestation.
[20] Promotion in this context means actively supporting or instigating hatred. The Supreme Court of Canada has determined that promotion goes beyond encouragement. In other words, it is not a criminal act to encourage people to hate. An act of hatred or a hateful comment could act as an example or an encouragement to others by emboldening them. Promotion must go beyond uttering hate filled comments and thereby encouraging others to act in the same way.
[21] There is no requirement that the communication have succeeded in causing hatred. The fact the utterances were so outrageous that they would gain no traction is not a defence. The fact that no one who read those words would think less of any African Nova Scotian is not, in itself a defence.
[22] The legal issue here is whether A.B. intended to promote hatred. It is not enough to prove that he intended to insult, provoke, disgust, or outrage the community. It is not enough that he intended to cause a young mother to worry about her safety and that of her children. It is not enough that he intended to make racist statements to demean and insult African Nova Scotians in general or that he intended to serve as an example to others of racism in action.
[23] The phrase “hate crimes” leaves the impression that the law criminalizes acts motivated by hate or the outright expression of racist hate. It does neither.
2. Human Rights Acts
The Canadian Parliament repealed the hate speech section of the Canadian Human Right Act in June 2012. This had been previously recommended by Professor Richard Moon in his 2008 report to the Canadian Human Rights Commission on the ground that Criminal Code prosecution should be the preferred course of action and in only the most serious of cases.
The three provincial human rights acts that proscribe hate speech [British Columbia, Alberta, Saskatchewan] do so in the context of publications. Typical language is:
7 (1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that…
(b) is likely to expose a person or a group or class of persons to hatred or contempt [3]
The most recent Supreme Court case dealing with hate speech under human rights codes was Saskatchewan (Human Rights Commission) v. Whatcott.[4] Complaints had been filed with the Saskatchewan Human Rights Commission concerning flyers published and distributed by William Whatcott that were alleged to promote hatred against individuals on the basis of their sexual orientation. The Saskatchewan Human Rights Tribunal found that these flyers violated the Saskatchewan Human Rights Code because they exposed persons to hatred and ridicule on the basis of their sexual orientation. The Saskatchewan Court of Appeal found the Code provisions constitutional but that the four leaflets did not rise to the level proscribed by the Code. In the appeal to the Supreme Court of Canada, the Court held that two of the flyers were violations and two were not because part of the Code was an unconstitutional violation of freedom of expression, providing clarification of what are the limits of expression in relation to hate:
“… the legislative term ‘hatred’ or ‘hatred or contempt’ must be interpreted as being restricted to those extreme manifestations of the emotion described by the words ‘detestation’ and ‘vilification’ … expression that [in the words of the Saskatchewan Code] ‘ridicules, belittles or otherwise affronts the dignity of ’ does not rise to the level of ardent and extreme feelings constituting hatred required to uphold the constitutionality of a prohibition of expression in human rights legislation… Consequently, they are constitutionally invalid and must be struck from [the Code].”
Mr. Justice Rothstein, writing on behalf of a unanimous Court, elaborated:
In my view, “detestation” and “vilification” aptly describe the harmful effect that the Code seeks to eliminate. Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimize them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience. Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims.[5]
[1] http://laws-lois.justice.gc.ca/eng/acts/C-46/section-319.html
[2] R. v. A. B., 2012 NSPC 31 https://www.canlii.org/en/ns/nspc/doc/2012/2012nspc31/2012nspc31.html?autocompleteStr=R%20v%20A.B&autocompletePos=1
[3] British Columbia Human Rights Code http://www.bclaws.ca/Recon/document/ID/freeside/00_96210_01
[4] Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 SCR 467, 2013 SCC 11 https://www.canlii.org/en/ca/scc/doc/2013/2013scc11/2013scc11.html?resultIndex=1
[5] Ibid.
