Factual Discussion about Canada’s Hate Speech Laws

Factual Questions
1

There’s a lively debate going on in GD about hate speech laws, and from time to time Canadian hate speech laws get mentioned: WaPo editorial “Why America needs a hate speech law”

I thought it might be helpful to have a discussion about Canada’s laws here in GQ to supplement that debate, but on the condition that it’s a factual discussion, not a debate about the merits of the Canadian laws. I’ve run the idea past the mods and they’re okay with me starting the thread, even though GQ normally starts with someone asking questions, provided it doesn’t turn into a debate about the merits or demerits of the Canadian hate speech laws.

I’ll start with a short outline of Canadian hate speech laws and then invite anyone who has follow-up questions to post them. I’ll do my best to answer them, keeping it to factual and descriptive only. And anyone else who is familiar with the laws should feel free to jump in as well to reply to questions.

Parliament amended the Criminal Code in 1970, to create three new offences: advocating genocide; publicly inciting hatred likely to lead to a breach of the peace; and wilfully promoting hatred. All three offences turn on the concept of statements targeting members of an “identifiable group”, currently defined as “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.” The genocide offence carries a maximum sentence of five years. The public incitement offence and the wilful promotion of hatred carry maximum sentences not exceeding two years. If the Crown proceeds by indictment, the accused has a right to a jury trial. See: Criminal Code, ss. 318, 319.

There is no specific agency charged with enforcing the provisions. They are criminal offences that are investigated by the local police (Mounties, provincial police or municipal police, depending on the location), just like other allegations of criminal offences. If the police believe they have the basis for a charge, they begin the normal process for a criminal charge, which is then prosecuted by the provincial Crown prosecutors, again just like any other criminal offence. The one additional procedural requirement is that any charge of advocating genocide or wilful promotion has to be authorised by the provincial Attorney General. If the charge is laid, it is prosecuted in either the Provincial Court or the provincial superior court, depending if it’s summary or indictable.

The Supreme Court of Canada has upheld the Criminal Code offence of wilful promotion of hatred from constitutional challenge, on the basis that although it restricts freedom of expression, it is a reasonable limitation within the Canadian Charter’s framework. The leading case was almost thirty years ago: R. v. Keegstra, [1990] 3 SCR 697. The facts of that case were that Mr Keegstra was a school teacher in a high school in a small town in Alberta. For at least a decade, he was teaching his students anti-semitism in his social studies class. He was convicted and the conviction upheld. I won’t attempt to summarise the Court’s analysis. If you’re interested, click on the link and it will take you to the case.

There haven’t been a lot of charges under the provision. The Wikipedia article gives a good summary of the them. See Hate Speech Laws in Canada.

There has been one case that I know of where a political candidate was prosecuted under the offence of wilfully promoting hatred: R v Popescu, a decision of the Ontario Court of Justice in 2009. Mr Popescu was an independent candidate in the 2008 federal election in a riding in Sudbury. He was speaking at a high school all-candidates meeting and was asked about homosexuality. He replied that “homosexuals should be executed.” He was convicted of wilfully promoting hatred and sentenced to eighteen months probation.

Three of the provinces (British Columbia, Alberta and Saskatchewan) have civil restrictions on hate speech contained in their human rights codes. These provisions are not offences, but civil actions, carrying consequences such as damages and injunctive relief. The federal human rights law used to contain a similar provision, but it was repealed. In a companion case to the Keegstra case, the Supreme Court upheld the federal human rights provision: Canada (Human Rights Commission) v. Taylor, [1990] 3 SCR 892. The provisions of the human rights laws have not been invoked very often, but they have attracted considerable controversy in some instances. Again, the wiki article gives a good summary of the cases (but I would not recommend the rest of the wiki article for information about the provincial human rights codes, as it contains some fundamental errors, in my opinion.)

So, that’s my summary, expressed as factually as possible. Feel free to ask factual questions.

2

When I saw your title, I immediately thought of Ernst Zundel, but was surprised not to find him listed in your “Hate Speech Laws in Canada” link. Looking to Wikipedia I see mention of two criminal trials both overturned on appeal, the second time by the Supreme Court. My faulty recollection of the trials were that his holocaust denial activities were tried under the hate crime provisions, but looking further into this he was actually charged under section 181, “prohibiting wilful publication of false statement or news that person knows is false and that is likely to cause injury or mischief to a public interest” In the decision to uphold the appeal and dismiss the charges, the Supreme Court found that section 181 violates the freedom of speech section of the Canadian Charter.

I’m not sure that this question has a factual answer, but in hindsight would the crown have had a better chance at getting a conviction had they brought charges under the hate speech section of the criminal code?

3

In the US, many hate crime laws serve as an enhancement to other criminal offenses.
For example, painting graffiti on a building wall is vandalism, a minor criminal offense. But if the building is a synagogue and the painting is of a swastika, this can be a hate crime, with much higher penalties.

But the Canadian hate crimes you mention seem to be criminal offenses in themself, rather than enhancements. Am I understanding this correctly? And why were the laes passed that way?

4

Does Canada have any provision for enhancing/enlarging the groupings of people who cannot be targeted by such speech?

An admittedly stupid example would say that Canadians started picking on “blonde” people. It catches on and some go so far as to advocate harming such people. As specified now, blondes would not be a protected group. If violence/vitriol rose enough that they would need protection what would be the mechanism to add them (or any other group) to the protected list?

5

Question: how directly does one need to be “publicly inciting hatred likely to lead to a breach of the peace” or “wilfully promoting hatred” to qualify under those clauses?

Because there are a lot of political positions which could presumably lead people to breach the peace, or become haters. As just one example, suppose someone expresses the position that “too much immigration is harming the country and we should cut down on it”? Opponents of such positions frequently claim that these positions derive from racism and promote racism, and you could easily argue that it incites hatred (especially if accompanied by reasons for immigration being harmful).

My factual question is whether there is anything in the law itself which would preclude political positions of this sort from being prosecuted under the Hate Crimes law, or whether it’s entirely dependent on the subjective judgement of any given prosecutor and jury.

6

It’s been quite a while, but my recollection is that the Crown’s office in Ontario, where the Zundel case arose, refused to bring charges against him under the hate speech offence because they did not think Holocaust denial was in itself a hate crime under the terms of the offence.

The background was that Zundel was promoting pamphlets challenging the Holocaust, notably one entitled “Did Six Million Really Die?”, arguing that it was all a hoax. My recollection (I was a law student in Ontario at the time, and was following it as an interesting case) is that the Crown’s office said that a debate like that was not the sort of speech targeted directly at members of a religious group, and didn’t infringe the hate speech provision.

The police and Crown therefore didn’t lay any charges against Zundel, and because of the requirement that the Attorney General has to consent to charges under the hate crime legislation, there was no scope for a private prosecution, which is still an option for some offences under the Criminal Code.

Instead, one Jewish person laid an information charging Zundel with spreading false news, beginning a private prosecution:

This was an archaic provision that dated back to an English statute, the Statute of Westminster 1272. It had been carried forward in Canada, first by the reception of English statute law, then by being included in the first Criminal Code in 1892. It’s not clear why it was carried forward, other than a good colonial attitude to English law (although it had actually been repealed in England a few years before).

The Crown then took over the prosecution of the offence and must have concluded that the pamphlet fit within it, and proceeded with the prosecution. Zundel was eventually convicted and appealed to the Supreme Court.

The Supreme Court held that the offence of spreading false news was unconstitutional, in a decision rendered the same day as Keegstra. The Court held that unlike the hate offences, the false news offence was too broadly written and did not target a narrowly defined type of harmful speech, as is the case with the hatred offences.

Technically, the offence stayed in the Criminal Code, but was unenforceable. It was repealed this year in a general law reform act that repealed old Criminal Code provisions, including ones that have been held to be unconsistutional and unenforceable.

For more information, here’s the links to the SCC decision and the wiki article:

R. v. Zundel, [1992] 2 S.C.R. 731

R v Zundel

7

My understanding is that the drive for hate speech offences came first, in the 1960s, while the idea of sentence enhancements wasn’t implemented until the 1990s.

There was a rise in speech targeting minorities in Canada in the 1960s, including anti-semitic statements, but also other minorities as well. The federal government struck a committee to investigate and make recommendations. The committee (which included a couple of future federal Justice ministers and one future prime Minister, Pierre Trudeau) made the recommendation for the creation of the three hate speech offences. I’ve not read the report and don’t know if they considered sentence enhancements for other offences. I can only assume that they thought targeting the actual speech was the most effective remedy.

The bill implementing the three offences was passed in 1970, by which time Trudeau was Prime Minister.

Sentence enhancements came later, in 1995, with the enactment of a different provision in the sentencing provisions of the Criminal Code:

8

The human skidmark behind Your Ward News got 12 months of house arrest for the vile crap he was spreading. Their office used to be very close to me and I would get the publication in my mail box. I read through the first one and holy cow, it was such a disjointed mess of conspiracy theories and straight up hate I can’t imagine anyone got anything out of it. But that is true of all racist and hate crap.

9

Yes, there is - a statutory amendment by parliament. Other than that, no.

It’s a basic principle of criminal law that there has to be a clearly defined offence. That normally means by statute.* An over-zealous Crown prosecutor can’t try to persuade a court to expand the scope of the criminal offence to include “blondes”. Any attempt to do so would be stayed as unknown to law.

Now, if there is a serious enough problem with hate speech aimed at a group that is not currently included in the definition of “identifiable group”, Parliament may consider adding that group.

For example, the scope of the “identifiable group” in the offence provisions has been expanded since 1970, by statutory amendments in Parliament. Two of the most significant expansions were the addition of sexual orientation and gender identity or expression.

*There are two old common law offences, contempt of court and contempt of Parliament, which are defined by centuries of court decisions).

10

The poster child for Canada’s hate laws is David Ahenakew. He made some comments about Jews during a speech, then during an interview with a reporter expounded on those comments. Make no mistake, they were vile… but he was prosecuted, convicted, overturned on appeal and retried, where he was acquitted. As I understand it (IANAL) just saying a group is bad, is a disease, needed to be removed, etc. (his words) does not imply “inciting hatred” whatever that means.

(Of course, in the eyes of the extreme political correct, can a member of a discriminated minority be racist?)

The same might apply to Zundel. Disputing a historical fact, no matter what it shows about the person’s mental state or intelligence, is not specifically inciting hatred. That people who fall for such fecal logic might then be inclined to hate… does not mean the person doing the disputing is actively inciting? Which then leads to the question - what exactly do you need to do to “incite hatred”?

As I recall from other discussions about inciting riots or inciting an assault or similar crimes, the wording has fairly specific - “Let’s burn down that building” or “hit him, I’ll pay for the lawyers” before it rises to the level of criminal conduct not simply free speech. Simply stating what your opinion is may not be sufficient.

11

I’m not aware of any cases of the “publicly inciting hatred likely to lead to a breach of the peace”, but the two leading cases on wilfully promoting hatred are the Keegstra case and R v Krymowski.

As mentioned earlier, Keegstra, a social studies teacher, taught anti-semitism as part of his social studies class in a public high school for about a decade, and would only give good grades to students who repeated the anti-semitic statements. Those who criticized them got bad grades. The fact that he was essentially indoctrinating young students under his supervision in antisemitism was a large part of the reasons for his conviction.

In R v Krymowski, there was a group of Roma refugees in a motel, under the care of the federal refugee protection officials. A group of people protested outside the motel, waving signs with anti-gypsy slogans. Here’s the summary of the facts from the Supreme Court’s judgment:

The Court held that met the requirements of the offence, set aside the acquittals, and ordered new trials.

One of the defences to the offence of wilful promotion of hate would apply there:

In fact, we just concluded a federal election where two of the political parties took positions advocating much reduced immigration to Canada: People’s Party of Canada and [Canadian Nationalist Party](Canadian Nationalist Party).

This question may be veering into debate, so I’ll keep the answer short. The court system contains protections against rogue Crown prosecutors generally, which applies to this offence, just like other criminal offence. The police and the Crown are bound by the law and the court decisions. The majority of the Supreme Court in the Keegstra case laid out in considerable detail the parameters of the offence, including the requirement for “wilful”, the meaning of hate speech, the mental element, truth as a defence, and so on. If a Crown tried to advance a different approach in a criminal prosecution, the defence could challenge by moving to strike as not consistent with the law, or that the evidence put forth by the Crown did not meet the high standard needed for a conviction under this offence. In the case of a conviction, the decision of the Court, including instructions to the jury about the scope of the law, are subject to review on appeal to the appellate courts, including ultimately the SCC. The court system is built on a series of checks and reviews to keep prosecutors within the bounds of the law in all prosecutions, including hate speech prosecutions.

12

I would just like to add to NP’s excellent posts the fact, doubtless unfamiliar to most Americans, that in Canada all criminal law is passed by the national parliament, not by provinces. Cases are, however, tried by “crown prosecutors” (equivalent to prosecuting attorneys) under provincial jurisdiction. Provinces can and do regulate civil law. Quebec starts with the old Roman civil code (although heavily modified) while I assume the other provinces start with the English common law.

Just to mention one example. A province could make abortion difficult in many ways, but one thing they could not do is make violations of their code a criminal offense. AFAIK, the provinces have given up on trying to make abortion difficult.

13

Thanks, NP, for starting this very interesting thread.

But not if otherwise? Why draw that distinction?

Why?

14

Thanks also go to the mods. Normally a GQ thread starts with someone asking questions. I suggested that I start a thread to generate questions, to supplement the active GD thread, and they were good with it.

This isn’t specific to the hate speech offences. The Criminal Code draws a distinction between summary process and indictable. If the Crown proceeds on a charge summarily, then it’s always judge alone, but with a lesser maximum sentence. If the Crown proceeds by way of indictment, the accused has a right to judge alone or judge and jury, but likely faces a higher maximum sentence.

Some complaints were lodged against main-stream publications over articles published, such as the Mohammed cartoons, an extract from one of Mark steyne’s books, and same-sex marriage. I believe all the complaints were dismissed either by the commissions, or by the courts, but it triggered a debate on whether the federal human rights act should have a civil hate speech provision. It was eventually repealed. In the interests of keeping this a factual discussion, I’ll not say more than that, but refer you to a couple of wiki articles on the issue for further reading:

Human rights complaints against Macleans magazine:

Section 13 of the Canadian Human Rights Act:

15

Thank you!

16

How certain are you that a court would stay the prosecution? In the U.S., the Supreme Court decided to expand “the right to privacy” into “legalized abortion”, and overturned quite a lot of statutes when it did so.

17

That was a case of the US Court finding that criminal restrictions infringed the Constitution.

What you are proposing would be the Canadian Courts expanding the criminal law, beyond that set out by Parliament, not striking down a law. I’m not aware of any such case.

18

I’m wondering how “willfully promoting hatred” works in actual practice. Do the police have some sort of checklist or guide to help determine if it applies?

Even after reading the Wiki article, it still seems somewhat on the vague side. Isn’t hatred, like beauty, in the eye of the beholder?

19

The Canadian Constitution is full of lawyer weasel words allowing the courts if they are so inclined to allow politicians to override any of the “guaranteed” rights - either because the restriction is “reasonable” or because the politicians choose to override it (overriding has to be regularly renewed). The overriding has, for example, been used to enforce the French language laws. Politicians saw what sort of uses plain-language rights for freedom of speech and other constitutional rights did in the US constitution and decided to avoid that messy limitation on government power.

Wikipedia:

20

Not sure if this is a question that has a factual answer or not but an answer given may at least have some facts to support it: what has been the impact of Canada’s hate speech laws on the frequency and character of speech and/or crimes aimed against identifiable groups?

The data that I can find is that the long term trend has been a significant increase in hate crimes in Canada, peaking in 2017 with a 47% year on year increase, and dropping more modestly in 2018. But I am not finding sources for longer term trends that go back to before and after the laws were passed. It does seem that the relative increase of hate crimes in Canada in recent years is greater than the relative increase in the United States (47 vs. 17% increase in 2017 for example).

I apologize if this veers too far into a request for an opinion but I am looking for actual data.

Thanks.