Körero Whakamauähara : Hate Speech
The Canadian Criminal Code contains three types of hate
speech offences in a section labelled “hate propaganda”.
These are advocating genocide; public incitement of
hatred, and wilful promotion of hatred. These hate
propaganda offences were added to the Canadian
Criminal Code in 1970 in response to events and
developments in the 1960s when white supremacists and
neo-Nazi groups were active in Canada.192
Section 318(1) – incitement of genocide – provides
that “Everyone who advocates or promotes genocide
is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years.” No
prosecution under this provision can be undertaken
without the consent of the provincial Attorney
General.193
Section 319(1) – public incitement of hatred – provides
that “Everyone 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 criminal offence.
Section 319(2) – wilful promotion of hatred – provides
“Everyone who, by communicating statements, other
than in private conversation, wilfully promotes hatred
against any identifiable group” is guilty of a criminal
offence.
Any person charged under section 319(2) has four
special defences available.194 These are:
•
that the statements communicated were true;
•
that an opinion or argument was expressed in good
faith and either concerned a religious subject or was
based on a belief in a religious text;
•
that the statements were relevant to a subject of
public interest and were on reasonable grounds
believed to be true; and
•
that the statements were meant to point out
matters that produce feelings of hatred toward an
identifiable group and were made in good faith for
the purpose of their removal.
Both of the section 319 offences carry a maximum
penalty of imprisonment of two years when prosecuted
on indictment.195 No prosecution under these provisions
can be undertaken without the consent of the provincial
Attorney General.196
Sections 319(1) and 319(2) both refer to an identifiable
group, which means “any section of the public
distinguished by colour, race, religion, national or
ethnic origin, age, sex, sexual orientation, or mental
or physical disability.”197 “Communicating” includes
“communicating by telephone, broadcasting or other
audible or visible means” and “statements” include
“words spoken or written or recorded electronically or
electro-magnetically or otherwise, and gestures, signs or
other visible representations”.198
The main difference between the two offences is that
section 319(1) requires that the accused’s conduct is
likely to result in some sort of public disorder (a breach
of the peace), whereas section 319(2) requires only that
the accused willfully promoted hatred.
In R v Keegstra the Canadian Supreme Court examined
the constitutionality of the section 319(2) offence of
wilful promotion of hatred. Dickson CJ, in the majority
judgment found that it did impinge on freedom
of expression as protected by section 20(b) of the
Canadian Charter of Rights and Freedoms.199 The
restriction, however, was justified under section 1 of
the Charter (limitation provisions) because it served the
important purpose of preventing the spreading of hate
propaganda200 and advanced this goal rationally and
with minimal impairment of freedom of expression.201
Julian Walker, “Background Paper: Hate Speech and the Freedom of Expression: Legal Boundaries in Canada”, Library of Parliament, Publication
No 2018-25-E (29 June 2018) Paper at 4.
193
Canadian Criminal Code, s 318(3).
194
Set out in s 319(3).
195
Canadian Criminal Code, s 319(1)(a) (public incitement of hatred); s 319(2)(a) (wilful promotion of hatred).
196
Section 318(3).
197
Section 318(4).
198
Section 319(7).
199
R v Keegstra [1990] 3 SCR 697, per Dickson CJ at 730 (emphasis added).
200
At795.
201
At 766.
192
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