Kara Sears
Canada's hate speech laws are designed to address and penalize hate speech that incites hatred against identifiable groups. These laws are outlined in the Criminal Code, which includes three separate hatred-related offences: advocating genocide, publicly inciting hatred likely to lead to a breach of the peace, and wilfully promoting hatred. The Criminal Code also covers hate speech on the internet and through written or spoken words, gestures, signs, and images. Additionally, three provinces and one territory have created civil sanctions for hate speech and hate publications in their human rights legislation. These laws aim to protect various characteristics, including race, religion, and ethnic origin, and carry penalties such as fines, probation orders, and imprisonment.
| Characteristics | Values |
|---|---|
| Year of introduction | 1970 |
| Basis | To combat hate speech and genocide |
| Offences | Advocating genocide, publicly inciting hatred likely to lead to a breach of the peace, wilfully promoting hatred |
| Protected characteristics | Race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, conviction for a pardoned offence |
| Types of communication | Written or spoken words, gestures, signs, images, internet content |
| Exclusions | Private communications |
| Penalties | Fines, probation orders, imprisonment |
| Notable cases | Your Ward News (2016), Maclean's (2008), Jim Keegstra, Ernst Zundel |
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What You'll Learn
The Criminal Code
Hate speech laws in Canada include provisions in the federal Criminal Code, which create criminal offences with respect to different aspects of hate propaganda. The Criminal Code is a federal statute passed by the Parliament of Canada, which has exclusive constitutional jurisdiction over criminal law in Canada.
There are three separate hatred-related offences under the Criminal Code: 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). Section 319(1) states that someone found guilty of the offence of "public incitement of hatred" made "statements" in a "public place" with the intention of stirring up or encouraging hatred against a particular group of people. The attempt to incite hate must also include the strong possibility of a public disturbance, which the law calls a "breach of the peace". Section 319(2) states that a guilty verdict for the offence of "wilful promotion of hatred" does not require proof that the speech actually caused further hateful comments or acts against the targeted group.
The term "hate speech" is not used in the Criminal Code, and Canadian law uses different terms to refer to hate speech. The Code covers hate speech on the internet, including on social media sites where there is a sufficient link to Canada. However, private communications are not considered hate speech under the Criminal Code.
The Supreme Court of Canada has repeatedly upheld laws that combat hate speech as justified limits on freedom of expression. In the Saskatchewan Human Rights Commission v. Whatcott, the Court unanimously upheld the constitutionality of the Code provision relating to hate speech and publications. However, the Court found that some of the language of the Code provision, relating to "ridicule, belittlement and affront to dignity", was unconstitutional.
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Hate publications
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. 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 Criminal Code is a federal statute passed by the Parliament of Canada, with exclusive constitutional jurisdiction over 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 term "hate speech" is not used in the Criminal Code or the Human Rights Code; instead, Canadian law uses different terms to refer to hate speech.
Hate speech under the Criminal Code includes "communicated statements," which can be written or spoken words, gestures, signs, and other images. This also covers hate speech on the internet and social media if there is a sufficient link to Canada. However, private communications are not considered hate speech under the Human Rights Code or the Criminal Code.
In 1966, a committee recommended that Parliament enact legislation to combat hate speech and genocide. The bill took four years to pass through Parliament and was finally enacted in 1970 under the government of Prime Minister Pierre Trudeau. This legislation introduced three new offences: advocating genocide, publicly inciting hatred likely to lead to a breach of the peace, and wilfully promoting hatred.
The Supreme Court of Canada has upheld the constitutionality of provisions relating to hate speech and publications. In the Saskatchewan Human Rights Commission v. Whatcott case, the Court unanimously upheld the Code provision while finding that some of its language relating to "ridicule, belittlement, and affront to dignity" was unconstitutional.
Examples of hate speech cases in Canada include the 2019 conviction of James Sears and LeRoy St. Germaine, the editor and publisher of a newsletter promoting rape legalization and Holocaust denial. They were charged with the willful promotion of hatred against women and Jews, and their publication, "Your Ward News," was banned from distribution by the federal government in 2016. Another example is the case of Hugh Owens, who placed an advertisement in a local newspaper in Saskatoon in 1997, citing Bible passages and depicting two male stick figures with a slash mark, which was found to infringe on the Code's prohibition on hate publication based on race and religion.
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Hate propaganda
The Criminal Code creates criminal offences with respect to different aspects of hate propaganda, although the term "hatred" is not defined. These offences are decided in criminal courts and carry sanctions such as fines, probation orders and imprisonment. 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). Section 319(1) states that someone found guilty of the offence of "public incitement of hatred" made statements in a public place with the intention of stirring up or encouraging hatred against a particular group of people. Section 319(2) states that a guilty verdict for the offence of "wilful promotion of hatred" does not require proof that the speech caused further hateful comments or acts against the targeted group.
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 involve 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 the Code provision relating to hate speech and publications. However, the Court has found that some of the language in the Code, relating to "ridicule, belittlement and affront to dignity", is unconstitutional.
The Criminal Code covers hate speech on the internet, including on social media sites with a sufficient link to Canada. However, private communications are not considered hate speech under the Code.
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Freedom of expression
Canada's hate speech laws have been the subject of much debate, with some arguing that they infringe on freedom of expression. While these laws aim to address and penalize hate speech that incites violence and promotes hatred against identifiable groups, they have also been criticised for potentially limiting free speech.
Canadian hate speech laws are defined at the federal level in the Criminal Code, which outlines criminal offences related to hate propaganda. The Code, passed by the Parliament of Canada in 1970, includes three separate hatred-related offences: advocating genocide, publicly inciting hatred likely to lead to a breach of the peace, and wilfully promoting hatred. These laws are designed to prevent serious harm that may result from hate speech, including harm to targeted groups and society as a whole. However, they have also faced legal challenges, with some arguing that they restrict freedom of expression.
The Supreme Court of Canada has played a significant role in interpreting and upholding the constitutionality of hate speech laws. In the case of Saskatchewan Human Rights Commission v. Whatcott, the Court unanimously upheld the constitutionality of the Code provision relating to hate speech and publications. However, it found that certain language in the Code, such as "ridicule, belittlement, and affront to dignity," was unconstitutional and did not meet the strict standard required by the Canadian Charter of Rights and Freedoms (the "Charter"). This recognition of the potential infringement on freedom of expression set out in Section 2 of the Charter was also acknowledged in the case of a shop owner who advertised anti-LGBTQ2 content in a local newspaper. The Court justified this limitation on freedom of expression under Section 1 of the Charter, which allows for reasonable limits on certain rights and freedoms.
In addition to federal laws, four jurisdictions—Alberta, British Columbia, Saskatchewan, and the Northwest Territories—have created civil sanctions for hate speech and hate publications in their human rights legislation. These laws provide for civil remedies such as damages or injunctive relief and are resolved through administrative tribunals or civil courts. The inclusion of these provisions at the provincial and territorial levels highlights the importance of balancing freedom of expression with the need to protect individuals and groups from harmful and discriminatory speech.
While Canadian hate speech laws aim to address extreme and specific types of expression, there is a delicate balance between protecting free speech and preventing hate speech. The courts and legislative bodies in Canada have worked to interpret and apply these laws in a way that respects freedom of expression while also recognising the potential harm caused by hate speech. As a result, Canadian hate speech laws remain a dynamic and evolving area of law, reflecting the country's commitment to protecting both freedom of expression and the rights of its diverse communities.
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Protected characteristics
Canada's hate speech laws aim to protect the freedoms and rights outlined in the Canadian Charter of Rights and Freedoms, which is part of the Constitution of Canada. This includes freedom of expression, freedom of the press, and freedom of religion. However, these freedoms are subject to reasonable limits, provided they are prescribed by law and can be justified in a free and democratic society.
The Criminal Code of Canada and provincial human rights laws contain prohibitions against the publication of messages that promote hatred or contempt towards identifiable groups. These laws protect against discrimination based on protected characteristics. The Criminal Code specifically lists the following characteristics as protected: colour, race, religion, national or ethnic origin, ancestry, age, sex, sexual orientation, gender identity or expression, and mental or physical disability.
In addition to the Criminal Code, certain provinces and territories in Canada have created their own provisions relating to hate speech and hate publications in their human rights legislation. For example, Alberta, British Columbia, Saskatchewan, and the Northwest Territories have enacted civil sanctions for hate speech, providing remedies such as damages or injunctive relief.
The interpretation and application of hate speech laws can vary, and Canadian courts play a crucial role in balancing freedom of expression with the protection of vulnerable groups. While there is ongoing debate about the best ways to address hate speech, the Government of Canada has recognised the need to take action and protect its citizens from the harmful impacts of hate speech, both online and offline.
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Frequently asked questions
Hate speech in Canada is defined as the content of a communication that expresses detestation or vilification of an individual or group of individuals on the basis of prohibited grounds of discrimination. The grounds of discrimination include race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted.
The Criminal Code of Canada criminalizes the public communication of statements that incite hatred and are likely to disrupt public peace. There are three separate hatred-related offences: advocating genocide, publicly inciting hatred likely to lead to a breach of the peace, and wilfully promoting hatred.
The penalties for hate speech in Canada can include fines, probation orders, and imprisonment.
Yes, there are some exceptions to the hate speech laws in Canada. For example, private communications are generally not considered hate speech, and there are protections for good faith expressions of religious opinions and arguments relevant to public interest.
