Cameron Miranda
Canada has several laws and frameworks in place to address hate crimes and promote diversity and inclusion. The Criminal Code, a federal statute, includes three separate hatred-related offences: advocating genocide, publicly inciting hatred, and wilfully promoting hatred. These offences carry penal sanctions such as fines, probation, and imprisonment. Additionally, certain provinces and territories have created civil sanctions for hate speech and publications in their human rights legislation. While Canada has made efforts to address hate crimes, research shows that racism, sexism, and discrimination persist, and incidents can be fuelled by specific events such as the COVID-19 pandemic.
| Characteristics | Values |
|---|---|
| Criminal Code of Canada Sections | 318, 319(1), 319(2), 320, 320.1 |
| Criminal Code of Canada Definitions | "identifiable group", "hate propaganda" |
| Criminal Code of Canada Offences | Advocating genocide, publicly inciting hatred, wilfully promoting hatred |
| Criminal Code of Canada Punishments | Imprisonment, fines, probation |
| Canadian Charter of Rights and Freedoms Sections | 1, 2 |
| Canadian Charter of Rights and Freedoms Protections | Freedom of expression, freedom of religion |
| Canadian Multiculturalism Act | Enacted in 1988 |
| Third-Party Reporting Scheme | Available for victims of hate crimes |
| Victim Protections | Testimonial aids, protection orders, safety considerations, identity protection |
| Victim Surcharge | Monetary penalty imposed on offenders at sentencing |
| Victim Impact Statements | Must be offered the opportunity to submit |
| Police Reporting | Police determine whether a crime was motivated by hatred |
| Police Reporting Data Collection | Since 2004 through the Uniform Crime Reporting (UCR) Survey |
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What You'll Learn
Criminal Code provisions
Canada's Criminal Code provisions address hate crimes and include federal statutes passed by the Parliament of Canada, which holds exclusive constitutional jurisdiction over criminal law in the country. The Code outlines three separate hatred-related offences:
Section 318 addresses advocating genocide against an "identifiable group." This offence carries no minimum punishment, but imprisonment is a possible sentence, along with probation or fines.
Section 319(1) pertains to publicly inciting hatred likely to lead to a breach of the peace. This includes communicating statements in any public place that incite hatred against an "identifiable group." The maximum penalty for this offence is two years' imprisonment.
Section 319(2) deals with the wilful promotion of hatred. This section does not define "hatred," but it provides defences against charges, such as when statements are made in good faith to address matters producing feelings of hatred toward an "identifiable group" to have them removed. The term "identifiable group" is used in all three offences and is a key concept in the Criminal Code.
Additionally, provisions authorise courts to order the seizure of hate propaganda in physical (Section 320) or electronic formats (Section 320.1).
Hate crimes are considered hybrid offences, allowing Crown prosecutors to choose between treating them as summary or indictable offences. Indictable offences are the most serious and carry more severe punishments, with a maximum penalty of life imprisonment.
The Criminal Code also includes a hate crime motivation flag to identify and record hate-motivated incidents during the investigation process.
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Civil sanctions for hate speech
Canada's hate speech laws 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 outlines three separate hatred-related offences: advocating genocide, publicly inciting hatred likely to lead to a breach of the peace, and wilfully promoting hatred. These offences carry penal sanctions such as fines, probation orders, and imprisonment.
Alberta, British Columbia, Saskatchewan, and the Northwest Territories have created civil sanctions for hate speech and hate publications in their human rights legislation. These claims are resolved through administrative tribunals or civil courts and can result in civil remedies such as damages or injunctive relief. For example, in 2016, the federal government ordered Canada Post to cease distributing the newsletter "Your Ward News" to homes in Toronto due to its promotion of hate speech against women. The defendants were found guilty, and this case set a precedent for addressing hate speech targeting women in Ontario.
The Human Rights Code of British Columbia prohibits the publication of any material that is likely to expose a person or group to hatred or contempt based on race, colour, ancestry, religion, sexual orientation, gender identity, or other protected grounds. Individuals or groups who believe they have been targeted by hate publications can file complaints with the British Columbia Human Rights Tribunal.
Hate speech laws in Canada must be balanced with the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression and freedom of religion. However, these freedoms are subject to reasonable limits prescribed by law and justifiable in a free and democratic society. The courts have emphasised that hate speech can distort or limit the free exchange of ideas and is detrimental to the values underlying freedom of speech. Therefore, only speech of an ""ardent and extreme" nature should be considered hate speech, and civil sanctions are implemented accordingly.
To address the evolving nature of hate speech, particularly on social media, the government has been recommended to establish requirements for online platforms and internet service providers to monitor and address incidents of hate speech promptly. These recommendations aim to increase the accessibility of reporting mechanisms on social media platforms and ensure the timely removal of hateful content.
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Sentencing and punishment
Canada's hate crime laws are covered under the Criminal Code, which creates criminal offences concerning different aspects of hate propaganda. The Code does not define the term "hatred", but it does outline the penalties for hate-motivated crimes.
The Criminal Code of Canada does not refer to "hate crimes" but instead uses the term hate-motivated crimes or bias-motivated crimes. There are three offences in the Code that specifically pertain to hate, which fall under the Hate Propaganda section: Advocating Genocide, Public Incitement of Hatred, and Wilful Promotion of Hatred.
The penalties for these offences include imprisonment, fines, and probation orders. For instance, the maximum penalty for Advocating Genocide is imprisonment for up to five years, while the maximum penalty for Public Incitement of Hatred and Wilful Promotion of Hatred is imprisonment for up to two years. There is no minimum punishment for these offences.
In addition to these three offences, any other crime, such as assault or criminal harassment, can have a hate-motivation applied by the judge to determine the sentence imposed if the accused is convicted. Judges have the ability to impose higher sentences when a crime is motivated by hatred, bias, or prejudice. This is outlined in subparagraph 718.2(a)(i) of the Criminal Code, which states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. This includes evidence that the offence was motivated by hate based on factors such as race, religion, sex, age, sexual orientation, or gender identity.
The Canadian Victims' Bill of Rights also ensures that victims of hate crimes have a right to present a victim impact statement to criminal justice authorities, which must be considered by the legal system. This allows victims to describe the harms done and losses suffered due to the crime.
It's important to note that the Supreme Court of Canada has rejected constitutional challenges to the hate propaganda offences in the Criminal Code, upholding the restrictions on free expression as justifiable under the Canadian Charter of Rights and Freedoms.
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Freedom of expression
Canada is one of the most diverse countries in the world, with 26% of the population identifying as a visible minority and 21% speaking a non-official language as their mother tongue as of 2021. Despite the Canadian Multiculturalism Act and the Canadian Charter of Rights and Freedoms, Canada is not immune to racism, sexism, and other forms of discrimination and harassment.
Canada's Charterpedia outlines Section 2(b) – Freedom of expression, which includes freedom of thought, belief, opinion, and expression, as well as freedom of the press and other media of communication. Similar provisions can be found in other Canadian laws and international instruments binding on Canada, such as the Canadian Bill of Rights and the International Covenant on Civil and Political Rights.
The Charter protects freedom of expression, but it is not absolute. For example, limits are easier to justify when the expression at issue has a low value, such as in the case of hate speech, pornography, or marketing harmful products. The Supreme Court of Canada has upheld restrictions on hate speech that constitute discriminatory practices, specifically those targeting members of vulnerable groups identified by a protected ground of discrimination.
Bill C-63, which includes the Online Harms Act, amends the Canadian Human Rights Act and further defines hate speech as content that expresses detestation or vilification of an individual or group based on a prohibited ground of discrimination. It clarifies that hate speech does not include the expression of mere dislike or disdain, nor expression that only discredits, humiliates, hurts, or offends. The Bill empowers the Commission and Tribunal to develop and require case-specific limits on freedom of expression if reasonable, while also promoting the aims of equality rights protected by Section 15 of the Charter.
The Criminal Code of Canada defines a hate crime as an unlawful action designed to frighten, harm, injure, intimidate, or harass an individual because of a bias motivation against their actual or perceived race, religion, ethnic background, or sexual orientation. It also provides defences against hate speech charges, such as expressing or attempting to establish an opinion on a religious subject or based on a belief in a religious text, or pointing out matters producing feelings of hatred toward an identifiable group in Canada for the purpose of their removal.
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Hate crime reporting
Hate crime 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 outlines three separate hatred-related offences: advocating genocide, publicly inciting hatred likely to lead to a breach of the peace, and wilfully promoting hatred. These offences carry penal sanctions such as fines, probation orders, and imprisonment. Additionally, the Code authorizes the courts to seize hate propaganda in physical or electronic formats.
To address the limitations of police-reported data, Canada has also introduced self-reporting mechanisms. The Human Rights Code of British Columbia, for instance, allows individuals or groups who believe they have been targeted by hate publications to file complaints with the British Columbia Human Rights Tribunal. This can include hate speech based on race, colour, religion, sexual orientation, gender identity, or expression.
In recent years, there has been a growing recognition of the need for comprehensive hate crime reporting and response mechanisms in Canada. Initiatives like "Changing Systems, Transforming Lives: Canada's Anti-Racism Strategy 2024-2028" aim to tackle systemic racism and promote inclusivity. As part of this strategy, front-line officers, analysts, and police staff are receiving training on how to report criminal hate crime incidents accurately.
While Canada continues to enhance its hate crime reporting capabilities, it is worth noting that the overall number of reported hate crimes has been increasing. Between 2019 and 2022, the rate of police-reported hate crimes rose by 77%, with Ontario, Nova Scotia, and British Columbia recording the highest rates in 2022. This increase in reporting could be attributed to growing public awareness of hate crimes and a rise in online hate speech.
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Frequently asked questions
Yes, Canada has hate crime laws. 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).
The penalties for hate crimes in Canada can vary depending on the specific charge. In general, a hate crime can be punishable by a prison term of up to five years. However, there is no minimum punishment, and other sentences such as probation or fines may be imposed. Additionally, all offenders convicted of an offence must also pay a federal victim surcharge, which is a monetary penalty to fund programs and services for victims of crime.
A hate crime in Canada is an act motivated by prejudice or bias based on specific protected characteristics, including race, colour, nationality, language, religion, sex, age, disability, or sexual orientation. The law also covers harassment, intimidation, violence, or threats of violence motivated by these factors.
