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Hate speech laws in Canada

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Hate speech laws in Canada include provisions in the Criminal Code of Canada, provisions in the Human Rights Act and in other federal legislation, and statutory provisions in each of Canada's ten provinces and three territories. The Criminal Code prohibits "hate propaganda." The Canadian Human Rights Act prohibits discrimination on various grounds. Legislation in the provinces and territories prohibits discrimination on the same grounds as Canada's Human Rights Act in matters of provincial or territorial concern such as employment and accommodation.

 

Contents  [hide] 

• 1

• The constitution

• 2

• The Criminal Code of Canada

• 2.1

• Cases under the Criminal Code

• 3

• Canadian Human Rights Commission

• 3.1

• Cases under the Human Rights Act

• 4

• Provinces and Territories

• 4.1

• Nunavut

• 4.2

• Northwest Territories

• 4.3

• Yukon

• 4.4

• British Columbia

• 4.5

• Alberta

• 4.6

• Saskatchewan

• 4.7

• Manitoba

• 4.8

• Ontario

• 4.9

• Quebec

• 4.10

• Prince Edward Island

• 4.11

• New Brunswick

• 4.12

• Nova Scotia

• 4.13

• Newfoundland and Labrador

• 5

• See also

• 6

• External links

• 7

References

The constitution[edit]

The Constitution of Canada incorporates the Canadian Charter of Rights and Freedoms.[1] Section 2 of the Charter grants to everyone, among other things, freedom of conscience and religion, and freedom of thought, belief, opinion and expression, including freedom of the press and other media. Section 1 restricts the granted freedoms by making them subject "only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."[2]

 

The Criminal Code of Canada[edit]

Sections 318, 319, and 320 of the Code forbid hate propaganda.[3] "Hate propaganda" means "any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offence under section 319."

 

Section 318 prescribes imprisonment for a term not exceeding five years for anyone who advocates genocide. The Code defines genocide as the destruction of an "identifiable group." The Code defines an "identifiable group" as "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation."

 

Section 319 prescribes penalties from a fine to imprisonment for a term not exceeding two years for anyone who incites hatred against any identifiable group.

Under section 319, an accused is not guilty: (a) if he establishes that the statements communicated were true; (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

 

Section 320 allows a judge to confiscate publications which appear to be hate propaganda.

Cases under the Criminal Code[edit]

In 2003, in Saskatchewan, the Crown charged David Ahenakew with wilfully inciting hatred because of the remarks he made about Jews to a reporter. In 2005, the Provincial Court convicted Ahenakew, and fined him $1,000.[4] In 2008, the Attorney General for Saskatchewan decided to retry the matter after the conviction was overturned on appeal. On 23 February 2009, Judge Wilfred Tucker of the Saskatchewan Provincial Court said Ahenakew's remarks were "revolting, disgusting, and untrue," but they did not constitute "promoting hatred." [5]

In Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at 902, the Supreme Court said hate propaganda denotes any expression that is "intended or likely to circulate extreme feelings of opprobrium and enmity against a racial or religious group".[6] The Supreme Court of Canada, by a bare 4-3 plurality, upheld the constitutionality of section 319 in R. v. Keegstra [1990] 3 S.C.R. 697.[7]

Canadian Human Rights Commission[edit]

The Canadian Human Rights Commission administers the Canadian Human Rights Act.[8] Section 3 of the Act prohibits discrimination based on "race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted." Section 13 of the Human Rights Act was repealed on the 26th of June 2013. Section 54 was rendered useless with the action, now referring to Section 53.[9]

Cases under the Human Rights Act[edit]

In Warman v. Lemire, 2009 CHRT 26, Athanasios D. Hadjis held that the respondent's right to freedom of thought, belief, opinion and expression should not be infringed by s. 13(1). Accordingly, the adjudicator did not penalize the respondent for his controversial postings to the Internet.[10]

In Warman v. Northern Alliance, 2009 CHRT 10, Edward Peter Lustig held that the respondent's website was in violation of s. 13(1) because the website carried controversial remarks about Roma, Jews, Muslims, homosexuals, blacks, Arabs, and others. The adjudicator made an order pursuant to s. 54(1)(a) to ensure that the impugned website, which is defunct, remained inactive.[11]

In Chopra v. Health Canada, 2008 CHRT 39, Pierre Deschamps ruled that Shiv Chopra, a microbiologist at Health Canada, was entitled to $4,000 in damages from Health Canada for hurt feelings, lost wages, and interest. The adjudicator found that Chopra was subjected to discriminatory comments, was suspended in retaliation for filing an earlier human rights complaint, and had been passed over when he could have had a temporary promotion to acting chief of his division.[12]

In December 2007, the Canadian Islamic Congress filed a complaint about hate speech against Maclean's Magazine. The substance of the complaint was that Maclean's was publishing articles (a column by Mark Steyn) that insulted Muslims. The Congress filed its complaint with the Canadian Human Rights Commission, the British Columbia Human Rights Tribunal and the Ontario Human Rights Commission.[13] The Ontario Human Rights Commission ruled that it did not have the jurisdiction to hear the complaint. The British Columbia Human Rights Tribunal dismissed the complaint 10 October 2008.[14] The Canadian Human Rights Commission dismissed the complaint on 26 June 2008.

In Warman v. Winnicki, 2006 CHRT 20, Karen A. Jensen found the respondent had posted messages to the Internet which were "vicious and dehumanizing". The adjudicator ordered the respondent to cease and desist his discriminatory practices and to pay a penalty of $6,000.[15]

In Citron v. Zündel TD 1/02 (2002/01/18) the Tribunal found that the respondent had theories of secret conspiracies by Jews. The respondent posted his theories to the Internet. The Tribunal found that the tone and extreme denigration and vilification of Jews by the respondent was a violation of s. 13(1). The Tribunal ordered the respondent to cease and desist his discriminatory practices.[16]

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http://www.cjpmo.org/DisplayDocument.aspx?DocumentID=759

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Factsheet: Freedom of Expression and Hate Speech in Canada

 

Factsheet Series No. 79, Created: April 2010, Canadians for Justice and Peace in the Middle East

How is freedom of expression protected in Canada?

Section 2(b) of Canada’s Charter of Rights and Freedoms states that “Everyone has the following fundamental freedoms: ... freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

However, Section 1 of the Charter specifies that the rights and freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This suggests that there may be limits to Charter rights – including freedom of expression – but only those limits that can be demonstrably justified in a free and democratic society.

What is hate speech, and what laws pertain to it in Canada?

Section 319 defines “public incitement of hatred” as an indictable offence:

Hate speech lacks a formal international definition, but is usually described as written or oral communication perceived to disparage a person or group of people based on their social or ethnic group. The danger of inciting violence or prejudicial action against such groups is also often mentioned. Two sections of the Canadian Criminal Code are relevant, first Section 319, and then Section 318.1

(1) Every one 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) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

However, there are some defences against such charges. Subsection 3 of Section 319 states: No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of (their) removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

Under Section 319, “statements” includes words spoken or written or recorded electronically or electro- magnetically or otherwise, and gestures, signs or other visible representations.

Section 318 is also pertinent, as it defines advocating or promoting genocide as an indictable offence:

(1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(2) In this section, “genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

In sub-section 4 of 318, “identifiable group” is defined as any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation. (R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1.)

Legal proceedings for charges under Section 318 or Section 319 of the Criminal Code cannot be instituted without the consent of the Attorney General.

info@cjpme.org © Canadians for Justice and Peace in the Middle East, reuse or reproduction prohibited without express written permission www.cjpme.org

Do motions by the House of Commons or legislatures affect Canadian

laws on freedom of expression?

Unless an amendment to the Criminal Code expressly equating the use of the word “apartheid” in reference to Israel with anti-Semitism or inciting hatred of Israelis or Jews were passed, it would be unlikely that charges of “public incitement of hatred” for using the phrase “Israeli apartheid” would stick.

However, resolutions by MPs in the House of Commons (or by elected members of provincial legislatures) condemning the use of certain terms – for example, “Israeli apartheid” – have an impact inasmuch as they are indicative of an informal interpretation by the House of Commons or the legislatures in question concerning what are “reasonable limits” on a right (freedom of expression). “Reasonable limits” are expressly allowed by the Charter. It is possible that a judge might take the passing of such resolutions into account when trying to decide if someone’s right to use the expression “Israeli apartheid,” for example, could be restricted. Thus, it was important that a motion to that effect was not passed by the House of Commons.

Can criticism of Israel be equated with hate speech?

The short answer is “no.” Canada has a long tradition of allowing strong and sharply-worded criticism of foreign governments and of our own, and doing so is not considered “public incitement of hatred” of the ethnic or religious group(s) associated with the particular country criticised. It is, however, important for those expressing themselves to distinguish between governments and religious or ethnic groups. The use of words with a religious or ethic connotation (i.e. Jew, Zionist, Muslim, Islamist) to refer to a policy might leave people discussing the Israeli-Palestinian conflict more vulnerable to charges of hate speech than if they used more clearly political categories (e.g. “Israeli government”, “Hamas”).

However, if someone were to call for the dismantling of Israel per se or for the destruction of the state of Israel (in contrast to simply calling for an end to the Occupation, respect for human rights, etc.), it might fall into the category of incitement to genocide. This is because, if such a call were to be heeded and put into effect, the Israeli people would cease to exist; therefore making such a call equivalent to calling for the destruction of the Israeli people (i.e. genocide.) As well, there is also a body of international jurisprudence that makes it clear that Holocaust denial also falls into the category of “incitement to racial hatred.” Given that the Holocaust was a factual event, it is important for those discussing it (including when discussing the establishment of the State of Israel) to refrain from comments that could be interpreted as casting doubt on the reality or magnitude of Holocaust. (The question of whether the Holocaust can be used as justification for Israel’s actions – as is often implied – is a different matter.)

The Canadian government itself has criticized the Israeli occupation of East Jerusalem, Gaza and the West Bank, and many other aspects of Israeli government policy that grassroots Canadian critics of Israel often criticize, especially during Israeli Apartheid Week. There is no legal basis in Canada for equating such criticisms with public incitement of hatred or with anti-Semitism.

What happens when someone is convicted of hate speech?

Charges of “public incitement of hatred” (hate speech) cannot be laid without the consent of the Attorney General. However, if such charges are laid, and if one is convicted, one could face a jail term of up to two years. Being convicted of any criminal offence can result in deportation, if one does not have Canadian citizenship. Conviction of the criminal offence of public incitement of hatred is no exception. Ernst Zundel, a German neo-Nazi and prominent Holocaust denier, was deported in 20052 after having lived in Canada for 40 years. He was tried and convicted in Germany of 14 counts of inciting racial hatred, and sentenced to 5 years in prison. The German Federal court deemed Holocaust denial to be incitement of racial hatred.3 Canadian courts would likely take the same view.

1 Criminal Code, Sections 318 and 319. See: http://laws.justice.gc.ca/eng/C-46/page-1.html
2 See full text of deportation ruling by Justice Pierre Blais: http://decisions.fct-cf.gc.ca/en/2005/2005fc295/2005fc295.html 3 “Holocaust denial writer jailed for five years,” The Guardian, 16 February 2007: http://www.guardian.co.uk/world/2007/feb/16/historybooks.secondworldwar