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 35