Keith Mack
Hate speech laws in Canada have been shaped by various factors, including legislative decisions, court rulings, and societal debates. The country's hate speech legislation has evolved over time, with early concerns about hate publications in the 1960s leading to the appointment of the Cohen Committee to study the issue. This culminated in the introduction of bills S-49 and S-5, which laid the groundwork for addressing hate speech. The Criminal Code of Canada includes provisions criminalizing different aspects of hate propaganda, and these offences are adjudicated in criminal courts. Additionally, certain provinces and territories have established civil sanctions for hate speech, providing avenues for redress through administrative tribunals or civil courts. The Supreme Court of Canada has played a pivotal role in interpreting and upholding the constitutionality of hate speech laws, such as in the landmark cases of R v Keegstra and Saskatchewan (Human Rights Commission) v. Whatcott. While some have advocated for a less restrictive approach to free expression, the courts have consistently recognized the detrimental impact of hate speech on democratic ideals and the need to protect targeted groups. The introduction of the Online Harms Act further underscores Canada's ongoing efforts to combat hate speech and promote digital safety.
| Characteristics | Values |
|---|---|
| Year of first hate speech laws | 1970 |
| Bill name | Bill C-3 |
| Bill C-3 definition of genocide | "Acts committed with the intent to destroy in whole or in part any identifiable group, namely: (a) killing members of the group, or (ii) deliberatively inflicting on the group conditions of life calculated to bring about its physical destruction." |
| Bill C-3 punishment for promoting genocide | 5 years' imprisonment |
| Bill C-3 passing majority | Liberals (155) + NDP (22) = 177 |
| Bill C-3 opposition | Progressive Conservatives (72) + Ralliement Créditistes (14) + 1 independent = 87 |
| Recent online safety bill | Online Harms Act |
| Recent online safety bill punishment for inciting genocide | Life in prison |
| Recent online safety bill status | Awaiting vote in Canada's Parliament |
| Recent online safety bill categories of harmful content | 7 |
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What You'll Learn
The history of hate speech laws in Canada
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 concerning different aspects of hate propaganda, although the code does not define the term "hatred". These offences are decided in 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 speech and hate publications in their human rights legislation. These claims are resolved through administrative tribunals or civil courts, with remedies such as damages or injunctive relief. The Supreme Court of Canada has rejected constitutional challenges to hate propaganda offences in the Criminal Code and has also rejected challenges to the hate publication provisions in human rights legislation.
In the early 1960s, various public groups, media outlets, and politicians raised concerns about the rise of hate publications in Canada. In January 1965, the federal government of Prime Minister Lester Pearson appointed a committee, the Special Committee on Hate Propaganda in Canada, commonly known as the "Cohen Committee", to study the issue and make legislative recommendations. The committee was chaired by Maxwell Cohen, the Dean of Law at McGill University. In 1966, the committee recommended that a law be established to prohibit advocating genocide and inciting hatred against particular groups.
In 1970, following the committee's recommendation, hate propaganda provisions were added to the Criminal Code. The Supreme Court of Canada has upheld the constitutionality of both the criminal and human rights legislative models. However, some legislatures have moved away from using the human rights model to address hate speech, as it is seen by some as an unnecessary and excessive restriction on individual rights.
In 2013, in Saskatchewan (Human Rights Commission) v. Whatcott, the Supreme Court examined the constitutionality of a provision in the Saskatchewan Human Rights Code that prohibited any representation that "exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground". The Court upheld the prohibition against hatred as a reasonable limit on free expression.
In 2017, James Sears and LeRoy St. Germaine, the editor and publisher of a newsletter promoting rape legalization and Holocaust denial, were charged with the willful promotion of hatred against women and Jews. This was the first case in which a court acknowledged that women could be targets of hate speech. Both men were found guilty in January 2019.
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Hate speech laws in Canadian provinces
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 concerning different aspects of hate propaganda, although the Code does not define the term "hatred". These offences are decided in 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 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.
The Supreme Court of Canada has rejected constitutional challenges to the hate propaganda offences in the Criminal Code and has upheld the constitutionality of provisions relating to hate speech and publications. The Court has also recognised that eliminating the spread of hatred is part of addressing discrimination. The two main provisions addressing hate in Canada, sections 318 and 319 of the Criminal Code, impose criminal sanctions against anyone who wilfully promotes genocide or incites hatred in public. Section 320.1 allows a judge to order the confiscation of hate propaganda stored electronically and to demand that it be taken down.
In 2017, James Sears and LeRoy St. Germaine, the editor and publisher of a newsletter promoting rape legalization and Holocaust denial, were charged with the wilful promotion of hatred against women and Jews. This was the first case in which a court found that women were the target of hate speech.
Human rights laws in Canada have a broad goal of eliminating discrimination against identifiable groups, and they can address expressions of hatred and contempt. While some have argued that human rights laws provide an unnecessary and excessive restriction on individual rights, others maintain that they are an efficient and flexible means of stopping the spread of hatred.
The Canadian Human Rights Act covers employment, accommodation, and services provided by the federal government and extends to federally regulated corporations and institutions under federal regulation.
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Freedom of expression vs hate speech
Freedom of expression and freedom of speech are considered cornerstones of human rights and pillars of free and democratic societies. These freedoms support other fundamental rights, such as the right to peaceful assembly, to participate in public affairs, and freedom of religion.
However, the line between freedom of expression and hate speech is often blurred and highly debated. Hate speech is generally defined as "any form of expression through which speakers intend to vilify, humiliate or incite hatred against a group or a class of persons based on race, religion, skin colour, sexual identity, gender identity, ethnicity, disability, or national origin". While freedom of expression is a fundamental right, it is not absolute, and restrictions may be placed on this freedom to protect against hate speech.
In Canada, hate speech laws include provisions in the federal Criminal Code and statutory provisions related to hate publications in some provinces and territories. These laws aim to protect against the promotion of hatred and discrimination. For example, in 2017, James Sears and LeRoy St. Germaine, the editor and publisher of a newsletter promoting rape legalization and Holocaust denial, were charged with the willful promotion of hatred against women and Jews.
The Supreme Court of Canada has upheld the constitutionality of both the criminal and human rights legislative models regarding hate speech. In the case of Saskatchewan (Human Rights Commission) v. Whatcott, the Court examined the prohibition against hatred as a reasonable limit on free expression. However, some legislatures have moved away from using the human rights model, as it may be seen as an unnecessary restriction on individual rights.
In contrast, the United States has a different approach due to the fundamental right to freedom of speech protected by the First Amendment. While "hate speech" is not a legal term in the US, the Supreme Court has ruled that most of what would qualify as hate speech in other western countries is protected speech under the First Amendment. The Court has unanimously reaffirmed that there is no 'hate speech' exception to the First Amendment, and the government may not discriminate against speech based on the speaker's viewpoint.
The debate around freedom of expression versus hate speech is complex and ongoing. While some argue that restrictions on hate speech are necessary to protect the rights and safety of marginalized groups, others argue that such restrictions may silence dissent and opposition. It is essential to strike a balance between protecting freedom of expression and preventing harm caused by hate speech.
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The role of the Supreme Court
The Supreme Court of Canada has played a significant role in interpreting and upholding hate speech laws in the country. Firstly, the Court has rejected constitutional challenges to hate propaganda offences in the Criminal Code, ensuring that these provisions remain valid and enforceable. This includes upholding the constitutionality of Section 318, which pertains to advocating for genocide, and Section 319(2), which addresses the incitement of hatred against identifiable groups.
In the R v Keegstra case, the Supreme Court upheld the conviction of Don Andrews, the leader of the white supremacist Nationalist Party of Canada, and his secretary, Robert Wayne Smith, for distributing anti-Semitic and anti-Black written materials. The Court found that the Criminal Code provisions specifically targeted a narrow category of expression that undermined democratic ideals by promoting hatred based on identity.
Additionally, the Supreme Court has examined the constitutionality of provincial human rights legislation pertaining to hate speech. In Saskatchewan (Human Rights Commission) v. Whatcott, the Court upheld the prohibition against hatred as a reasonable limit on free expression. It agreed that such provisions were necessary to impose financial accountability and deter the communication of hate speech to reduce discrimination.
The Court has also considered the intersection of hate speech laws with immigration matters. In Mugesera v. Canada, the Court found that an immigrant from Rwanda who had incited listeners to kill members of the Tutsi ethnic group during the Rwandan genocide met the legal standard for deportation under Section 318.
Furthermore, the Supreme Court has supported the constitutionality of both the criminal and human rights legislative models addressing hate speech. While some legislatures have moved away from the human rights model, the Court has recognised the importance of balancing free expression with the need to prevent the spread of hatred.
In recent years, the focus has shifted towards online hate speech, with the Canadian government introducing the proposed Online Harms Act to combat online abuse and impose steep penalties for hate crimes. The Act would require social media platforms to remove harmful content within 24 hours and establish a "digital safety commission of Canada" to regulate online platforms. These developments highlight the evolving nature of hate speech legislation in Canada and the ongoing efforts to address this issue.
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Hate speech and the internet
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 outlines criminal offences with respect to different aspects of hate propaganda, although it does not define the term "hatred". These offences are decided in criminal courts and can result in penal sanctions, such as fines, probation orders, or imprisonment.
The history of hate speech laws in Canada dates back to the 1960s when concerns were raised about the rise of hate publications. In 1965, the federal government appointed the Special Committee on Hate Propaganda in Canada, commonly known as the "Cohen Committee," to address this issue. This led to the introduction of bills S-49 (1967) and S-5, which aimed to prohibit the oral and written publication or distribution of hate literature.
In 1970, Bill C-3, "An Act to Amend the Criminal Code," received royal assent, marking the first hate speech law in Canada. This bill defined "genocide" and outlined punishments for advocating or promoting it.
In recent years, Canada has continued to address hate speech, particularly in the context of the internet and online platforms. In 2024, the country introduced new online safety rules, and the proposed Online Harms Act aims to combat online abuse with harsh penalties for hate crimes, including life imprisonment for inciting genocide. The Act would require social media platforms to remove harmful content within 24 hours, including posts that sexualize children, bully a child, or encourage self-harm.
The constitutionality of hate speech laws in Canada has been debated, with some arguing for a less restrictive approach to free expression. However, the Supreme Court has upheld the constitutionality of both the criminal and human rights legislative models, and cases such as R v Andrews and R v Keegstra have set important precedents in this area.
While there may be differing opinions on the specific laws and their implementation, addressing hate speech, especially in the digital realm, remains a critical aspect of protecting individuals' rights and ensuring that democratic ideals are upheld.
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Frequently asked questions
Yes, in 1970, Bill C-3, An Act to Amend the Criminal Code, received royal assent in the Canadian Parliament. The strength of the Liberal majority, along with NDP support, assured its passage.
Hate speech laws in Canada include provisions in the federal Criminal Code and statutory provisions relating to hate publications in three provinces and one territory. The Criminal Code creates criminal offences concerning different aspects of hate propaganda, with penal sanctions for violations. Some provinces have created civil sanctions for hate speech, which are resolved through administrative tribunals or civil courts.
In 2017, James Sears and LeRoy St. Germaine, the editor and publisher of a newsletter promoting rape legalization and Holocaust denial, were charged with the willful promotion of hatred against women and Jews. This was the first case recognizing women as targets of hate speech. Another notable case is Saskatchewan (Human Rights Commission) v. Whatcott, where the Supreme Court of Canada examined the constitutionality of prohibiting any representation that "exposes or tends to expose to hatred, ridicules, belittles, or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground."
