Hate speech laws in Canada

In the early 1960s, concerns were raised by various public groups (such as the Canadian Jewish Congress), by some media outlets, and by some politicians (such as John Diefenbaker, then Leader of the Opposition) about the rise of hate publications in Canada.[6] The federal government of Prime Minister Lester Pearson responded by appointing a committee in January 1965 to study the issue and make recommendations about legislation: the Special Committee on Hate Propaganda in Canada, commonly referred to as the "Cohen Committee" after its chair, Maxwell Cohen.

The Minister of Justice, Guy Favreau appointed the seven members of the Committee: Maxwell Cohen, Dean of Law at McGill University; Saul Hayes, QC, executive vice-president of the Canadian Jewish Congress; Dr. James A. Corry, Principal of Queen's University; Father Gérard Dion, professor of industrial relations at Université Laval;[7] Dr Mark MacGuigan, then a professor of law at the University of Toronto; Shane MacKay, executive editor of the Winnipeg Free Press;[8] and Pierre-Elliott Trudeau, then a professor of law at the Université de Montréal.[9] In Keegstra, Chief Justice Dickson described this group as "a particularly strong committee".[10]

In 1966, the Committee made its report. It recommended that Parliament enact legislation to combat hate speech and genocide. The Pearson government promptly introduced the legislation, proposing three new offences: advocating genocide; publicly inciting hatred in a way likely to lead to a breach of the peace; and wilfully promoting hatred. The bill then took four years to wend its way through Parliament. The bill finally passed in 1970, under the government of Pierre Trudeau, by that time Prime Minister of Canada.[11][12]

The Criminal Code is a federal statute passed by the Parliament of Canada, which has exclusive jurisdiction over the criminal law in Canada.[13] There are three separate hatred-related offences: section 318 (advocating genocide),[14] section 319(1) (publicly inciting hatred likely to lead to a breach of the peace),[15] and section 319(2) (wilfully promoting hatred).[15] In addition to the three offences, there are provisions which authorise the courts to order the seizure of hate propaganda, either in physical formats (section 320)[16] or in electronic formats (section 320.1).[17]

For all three offences, there is no minimum punishment. Although imprisonment is a possible sentence, so too are punishments such as probation or fines.

There are two important phrases which are used in the different provisions: "identifiable group" and "hate propaganda". The terms have the following meanings:

• "identifiable group", used in the three offences in s. 318 and s. 319, is defined by s. 318(4) as "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation, gender identity or expression, or mental or physical disability." (When originally enacted in 1970, the definition was limited to "colour, race, religion or ethnic origin," but it has been expanded over the years, most recently in 2017 by the addition of gender identity and expression.[18])
• "hate propaganda", used in s. 320 and s. 320.1, is defined by s. 320(8) to mean "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 makes it an offence to advocate or promote genocide, which is defined as killing members of an identifiable group, or inflicting conditions of life on a group which are calculated to bring about the physical destruction of the group. The offence is indictable, and carries a maximum penalty of imprisonment not exceeding five years. There is no minimum punishment. The consent of the provincial Attorney General is required for a charge to be laid under this section.[14]

Section 319(1) makes it an offence to communicate statements in a public place which incite hatred against an identifiable group, where it is likely to lead to a breach of the peace. The Crown prosecutor can proceed either by indictment or by summary process. The maximum penalty is imprisonment of not more than two years. There is no minimum punishment.[15]

Section 319(2) makes it an offence to wilfully promote hatred against any identifiable group, by making statements (other than in private conversation). The Crown prosecutor can proceed either by indictment or by summary process. The maximum penalty is imprisonment of not more than two years.[15]

Section 319(3) provides specific defences to the offence of promoting hatred. A person will not be convicted if:

• the person establishes that the statements communicated were true;
• 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;
• the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds the person believed them to be true; or
• in good faith, the person intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.[15]

Section 320 allows a judge to confiscate publications which appear to be hate propaganda, after due notice to the apparent owner of the material and the owner of the premises where the material is found, and after a hearing.[16]

Section 320.1 allows a judge to make similar orders with respect to confiscation of hate propaganda stored electronically, and to order that hate propaganda which is made available to the public by electronic means be taken down.[17]

The Supreme Court of Canada considered the meaning of the offence of advocating genocide in a deportation case, Mugesera v. Canada (Minister of Citizenship and Immigration). The individual was an immigrant from Rwanda. The Court found that he was a member of a hard-line Hutu party, and that he had made a speech during the Rwandan genocide, calling for his listeners to exterminate members of the Tutsi ethnic group. The Court found that would constitute the offence of advocating genocide under s. 318, if it had occurred in Canada, and therefore met the legal standard for deporting the individual.[19]

One of the first cases to consider this offence had unusual facts. The accused were both French-Canadian. During a heated debate in their municipality about the construction of a school to be operated in French, they circulated a pamphlet containing anti-French-Canadian statements. Upon being charged with the offence of wilfully promoting hatred, their defence was that they circulated the pamphlet to expose prejudice in the community against French-Canadians. The Ontario Court of Appeal held that in the unusual circumstances, it was not clear if they had "wilfully" intended to promote hatred. The Court set aside their convictions and ordered a new trial.[20]

R v Keegstra is the major Supreme Court decision on the offence of promoting hatred. The accused was a high school teacher. In his social studies class, he taught his students extreme anti-Semitic views. The students were expected to repeat this material on their examinations. If they failed to do so, their marks suffered.[21]

The accused was charged with promoting hatred against the Jewish people. He challenged the constitutionality of the offence of promoting hatred under s. 319(2), arguing that it infringed his freedom of expression under s. 2(b) of the Charter. He also challenged the requirement under s. 319(3)(a) that he was required to prove the truth of his statements, arguing that placing the onus of proof on him infringed the presumption of innocence guaranteed by s. 11(d) of the Charter. He was successful in those arguments at trial and on appeal to the Alberta Court of Appeal. The Crown appealed to the Supreme Court.

By a 4-3 majority, the Supreme Court dismissed his constitutional challenges. Speaking for the majority, Chief Justice Dickson agreed that the offence of promoting hatred infringed the guarantee of freedom of expression, but upheld the infringement as a reasonable limit under s. 1 of the Charter. He also agreed that the reverse onus of proof in s. 319(a) infringed the presumption of innocence, but that placing the onus on the accused to prove the truth of his statements was a reasonable restriction under s. 1. He therefore set aside the acquittal and ordered a new trial.

Speaking for the dissent, Justice McLachlin (as she then was) agreed with the Chief Justice that the two provisions infringed s. 2(b) and s. 11(d). However, she did not think that the provisions could be justified under s. 1. She would have dismissed the appeal.

R v Andrews was a companion case to R v Keegstra, heard and decided by the Supreme Court at the same time. The accused were Don Andrews, the leader of the white supremacist Nationalist Party of Canada, and Robert Wayne Smith, the secretary of the party. The police seized written material which was anti-Semitic and anti-black.[22] The accused were convicted at trial and the convictions were upheld on appeal to the Ontario Court of Appeal.

The Supreme Court dismissed the appeal, by the same 4-3 majority as in Keegstra. Chief Justice Dickson for the majority and Justice McLachlin for the dissent each relied on their reasons from the Keegstra case.

R v Krymowski was a decision of the Supreme Court concerning charges of promoting hatred against Roma people. Some Roma individuals who were seeking refugee status in Canada were staying in a motel. A crowd of people gathered outside the motel with signs, chanting and displaying statements against "gypsies", including statements of "White power". Some participants were seen giving the "Sieg Heil" Nazi salute.

The trial judge acquitted the accused on the basis that there was no evidence that "gypsies" were the same as Roma people. The Supreme Court unanimously allowed the appeal and set aside the acquittals, on the basis that the trial judge should have relied on ordinary dictionary meanings and accept that the references to "gypsies" were reference to the Roma people.[23]

In 2007, a Montreal neo-Nazi, Jean-Sebastien Presseault, pled guilty to a charge of willfully promoting hatred toward blacks and Jews on his website, contrary to s. 319(2). The Court of Quebec sentenced him to six months in jail, rejecting the defence position that the sentence be served in the community. The sentencing judge called Presseault's remarks "despicable, evil, and nauseating". The judge also referred to Pressault's more than twenty tattoos, including several Ku Klux Klan and Nazi symbols covering the defendant's torso, in his decision to give jail time: "The harm that he has done to his own body to leave a lasting impression of his beliefs clearly shows that he has unresolved issues and is filled with racist feelings and hate". The judge also cited Presseault's criminal record for violent offences in concluding that the safety of the public would be jeopardised by allowing him to serve his sentence in the community.[24][25]

During the 2008 federal election, David Popescu, a perennial candidate in Sudbury, Ontario, answered a question at a high school by saying "homosexuals should be executed". He was subsequently charged with wilful promotion of hatred and stated during the trial that his views were consistent with the Bible. In 2009, the Ontario Court of Justice found Popescu guilty and sentenced him to 18 months of probation.[26] Popescu was investigated again in 2015, based on election pamphlets which made similar statements about the gay community. However, these charges were later dropped.[27]

In 2002, David Ahenakew was a speaker at a conference in Saskatoon. Based on two sets of comments he made that day, first during his speech to the conference, and a second set of comments made to a reporter afterwards, he was charged with promoting hatred against people of the Jewish faith. In 2005, the Provincial Court of Saskatchewan found that there was a reasonable doubt whether Ahenakew intended to promote hatred in his initial statement to the conference. However, with respect to the interview Ahenakew gave to the reporter, the Provincial Court found that Ahenakew did intend to promote hatred. The Provincial Court convicted him of the offence and fined him $1,000.[28]

Ahenakew appealed to the Saskatchewan Court of Queen's Bench, arguing that the conversation with the reporter was a private conversation, and also that his statements did not meet the test for wilfully promoting hatred. In 2006, the Queen's Bench allowed the appeal, holding that the statement to the reporter was a public statement, noting that Ahenakew was an experienced politician who had given many interviews, and the reporter had begun the conversation by saying he wished to conduct an interview. However, the Queen's Bench held that the trial judge had not properly considered the context of the interview, where Ahenakew was responding to questions posed to him, and in the context he may not have had the intention of wilfully promoting hatred. The Queen's Bench therefore set aside the conviction and ordered a new trial.[29] The Crown appealed the decision to the Saskatchewan Court of Appeal, which upheld the decision of the Queen's Bench.[30][31]

The Attorney General for Saskatchewan decided to retry the matter after the conviction was overturned on appeal. In 2009, the Provincial Court acquitted Ahenakew. The Court stated that remarks were "revolting, disgusting, and untrue," but they did not constitute "promoting hatred."[32][33]

In 2017, James Sears and LeRoy St. Germaine, the editor and publisher of a newsletter promoting rape legalization and Holocaust denial, were charged with willful promotion of hatred against women and Jews.[34] The newsletter, Your Ward News, was delivered monthly to homes in Toronto before the federal government ordered Canada Post to cease distribution in 2016. Ontario Court of Justice Judge Richard Blouin disagreed with the defendants' claim that the publication was meant to be satire, noting "both men were fully aware of the unrelenting promotion of hate."[35] Both were found guilty on January 24, 2019.[36] The office of the Attorney General of Ontario noted that this was the first charge and conviction in Ontario for promoting hate against women.[35]

Alberta's Human Rights Act[38] forbids discrimination upon the common grounds except for political opinion, but also on account of "source of income". The Act forbids a publication or display that "is likely to expose a person or a class of persons to hatred or contempt". An adjudicator has no authority to order that a respondent pay to the complainant "emotional damages" or pay a penalty. The authority responsible for the Act is the Alberta Human Rights and Citizenship Commission (AHRCC).

In 2006, the Muslim Council of Edmonton and the Supreme Islamic Council of Canada complained to the AHRCC when Ezra Levant published cartoons that were featured first in Denmark in the magazine Jyllands-Posten. The Commission dismissed the complaint on 5 August 2008.[39] The two-year tribunal process cost Levant around $100,000 in legal costs.

In June 2002, Reverend Stephen Boissoin sent to the Red Deer Advocate a letter to the editor. The Advocate published the letter, which said it was aimed at anyone who "supports the homosexual machine that has been mercilessly gaining ground in our society since the 1960s". Dr. Darren Lund complained about Boissoin's remarks to the AHRCC. In the end, the Alberta Court of Queen's Bench dismissed the complaint. See Lund v. Boissoin.

On 2 April 2002, the Edmonton Journal and the Calgary Herald published an editorial which reported that a meeting of the Organisation of the Islamic Conference was taking place in Malaysia on the subject of terrorism. The editorial said the meeting would "no doubt be a farce". The editorial went on to disparage the behaviour of Muslims, especially the Palestinians.[40] Muslim and Palestinian organizations and their supporters complained about the editorial to the AHRCC. The complainants said the editorial was likely to incite hatred and contempt toward Palestinian Arabs and Muslims. On 21 September 2009, commission director Marie Riddle dismissed the complaints.[41]

Complaints can be filed directly with the province's human rights tribunal. Under British Columbia's Human Rights Code,[42] an adjudicator must order a violator to cease contravening the Code, and may order inter alia that the violator pay to the complainant an amount that the adjudicator considers appropriate "for injury to dignity, feelings and self respect or to any of them".

In Khanna v. Common Ground Publishing Corp., 2005 BCHRT 398, Tonie Beharrell considered a complaint about an image on the cover of a magazine. The image was a representation of the Hindu god Shiva in the form of Nataraja. The representation had a circle of fire with modern artifacts, e.g., a hamburger. The adjudicator found no merit in the claim that the image would make it "acceptable for others to express hatred and contempt for Hindus".[43]

"Fifteen years after it was dismantled by the B.C. Liberals, the NDP government has announced plans to reinstate the B.C. Human Rights Commission.

Premier John Horgan said B.C. is the only province without a human rights commission, and one is needed to address issues of systemic discrimination and inequality that are prevalent throughout the province.

"Every person deserves to be treated with dignity and respect, regardless of physical ability, race, religion, sexual orientation, gender identity, or gender expression," Horgan said Friday at a news conference.

He has tasked B.C. Attorney General David Eby with re-establishing the commission.[44]

Manitoba's The Human Rights Code[45] allows an adjudicator to order inter alia that a respondent pay damages for injury to dignity, feelings or self-respect in an amount that the adjudicator considers "just and appropriate", and to pay a penalty or exemplary damages (up to $2000 in the case of an individual respondent; up to $10,000 in any other case) if malice or recklessness is involved. Manitoba's Code is unique in having an "analogous grounds" provision. Complaints can be based not only on the listed grounds (such as sex, age, national origin, etc.), but also on grounds analogous to the listed ones. For example, the Manitoba Human Rights Commission currently accepts complaints based on gender identity.

New Brunswick's Human Rights Act[46] forbids discrimination upon various grounds which depend upon the circumstances. An adjudicator (Board of Inquiry) may order a respondent "inter alia" to compensate a complainant "for any consequent emotional suffering, including that resulting from injury to dignity, feelings or self-respect, in such amount as the Board considers just and appropriate".

The Human Rights Code of Newfoundland and Labrador[47] has no provision for "emotional damages".

The Northwest Territories' Human Rights Act[48] prohibits discrimination on the common grounds and on "social condition". The section regarding publication (s.13) explicitly forbids any means of expression that "is likely to expose any individual or class of individuals to hatred or contempt". The adjudicator may order inter alia a respondent "to pay to a complainant an amount that the adjudicator considers appropriate to compensate that complainant for injury to dignity, feelings and self respect". If the adjudicator finds that the respondent "acted wilfully or maliciously", or that the respondent repeatedly contravened the Act, the adjudicator may order the respondent to pay an amount not exceeding $10,000 as exemplary or punitive damages".

Nova Scotia's Human Rights Act[49] prohibits discrimination upon the common grounds and upon "an irrational fear of contracting an illness or disease". An adjudicator "may order any party who has contravened this Act to do any act or thing that constitutes full compliance with the Act and to rectify any injury caused to any person or class of persons or to make compensation therefor and, where authorized by and to the extent permitted by the regulations, may make any order against that party, unless that party is the complainant, as to costs as it considers appropriate in the circumstances".

In April 2008, a group in Nova Scotia, the Centre for Islamic Development, filed a complaint with the police and with the Human Rights Commission of Nova Scotia over a cartoon published in the Halifax Chronicle-Herald.[50]

Nunavut's Human Rights Act 2003[51] allows its adjudicator to order inter alia compensation "for injury to dignity, feelings or self-respect" and "for any malice or recklessness", and to order an apology.

The Ontario Human Rights Code forbids discrimination upon various grounds which depend upon the circumstances.[52] An adjudicator may order inter alia a respondent: to pay monetary compensation to the complainant "including compensation for injury to dignity, feelings and self-respect"; to make restitution to the complainant "including restitution for injury to dignity, feelings and self-respect"; and to do anything that will rectify the respondent's violation of the Code. The majority of cases concerning violations of the Code are heard by the quasi-judicial Human Rights Tribunal of Ontario.

Prince Edward Island's Human Rights Act[53] has no provision for a payment of "emotional damages" to the complainant. The adjudicator may inter alia impose a fine on an individual of not less than $100 and not exceeding $500, and on any other entity of not less than $200 and not exceeding $2,000.

Section 10 of the Quebec Charter of Human Rights and Freedoms[54] prohibits discrimination based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law. Section 80 provides:

Where the parties will not agree to negotiation of a settlement or to arbitration of the dispute or where the proposal of the commission has not been implemented to its satisfaction within the allotted time, the commission may apply to a tribunal to obtain, where consistent with the public interest, any appropriate measure against the person at fault or to demand, in favour of the victim, any measure of redress it considers appropriate at that time.

Saskatchewan had the first legislation in North America (1947) to prohibit victimisation on account of race, religion, colour, sex, nationality, ancestry, and place of origin.[55] The Saskatchewan Human Rights Code[56] prohibits discrimination upon the common grounds and on account of "receipt of public assistance". The Code forbids any publication or display "that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons". The Supreme Court of Canada found "ridicule, belittlement and affront to dignity" unconstitutional and removed it from the Code in Saskatchewan Human Rights Commission v. Whatcott, 2013 SCC 11 (see the Conclusion, paragraph 206).[57] An adjudicator may award inter alia to the complainant compensation up to $10,000 either for the respondent's misconduct if it was wilful and reckless or for injury to "feeling, dignity or self-respect".

In June 1997, the Saskatchewan Human Rights Tribunal held that Hugh Owens had breached the Human Rights Code by placing in a newspaper an advertisement that gave citations for passages in the Bible. The passages condemn homosexual behaviour. Owens appealed. The Court of Queen's Bench agreed with the Tribunal. Owens appealed. In 2006, the Court of Appeal reversed the Tribunal's decision.[58]

In 2005, the Saskatchewan Human Rights Tribunal fined Bill Whatcott, leader of a small group called the Christian Truth Activists, $17,500 because he distributed flyers that had controversial comments about homosexuals.[57] The matter ultimately went to the Supreme Court of Canada[59] where the decision was upheld in part.[60]

The Yukon Human Rights Act[61] prohibits treating any individual or group unfavourably on account of the common grounds and "source of income". The Act does not have any specific provision that forbids discriminatory publications, displays, or broadcasts.