Legal Brief for September, 2017

Hate Speech Laws in Canada

With all of the controversy in the U.S.  these days arising from the Charlottesville, Virginia white supremacist rally, commentators in Canada are taking a renewed look at what are loosely known as the "hate speech laws" that are applicable in Canada.  The main source of such laws in this country is the Criminal Code, which as a federal government statute applies to all Canadians.

There are two main elements to the Criminal Code provisions.  The first is the concept of "public incitement of hatred", which is found in section 319 (1) of the Code.  The second is the concept of "willful promotion of hatred", which is found in section 319 (2).

Section 319 (1) provides that a person is guilty of the crime of "public incitement of hatred" if they make statements in a public place which are intended to promote hatred against an identifiable group and if such statements are likely to lead to a breach of the peace.

Section 319 (2) provides that a person is guilty of the crime of "willful incitement of hatred" if they make statements promoting hatred against an identifiable group.

Prosecutions for these offences are difficult, and they often do not result in convictions.  There are many defences that persons accused of such crimes can offer in court in defence of what they may have said.  Such defences can include the following:

  1. the statements were made in private conversations (i.e.  they were not made "in public");

  2. the person can establish that the statements were true;

  3. the person was expressing an opinion in good faith on a religious subject or an opinion based on a belief in a religious text;

  4. the statements were relevant to a subject of public interest and the discussion was for the public benefit and the person had reasonable grounds for believing the statements to be true.

The most notorious case in Alberta involving these hate crime provisions was the case of Jim Keegstra in the 1980's.  Mr.  Keegstra was a high school teacher in the Town of Eckville.  He openly taught his social studies students that the Holocaust was a myth and he ascribed many evil qualities to Jewish persons, including that they were "child killers".  He would reduce his students marks if they did not respond with answers repeating these statements on their tests and exams.

Mr.  Keegstra was convicted at trial by the Alberta Court of Queen's Bench of an offence under section 319 (1) of the Code.  He also lost his teaching licence.  The case was eventually appealed to the Supreme Court of Canada, which confirmed Mr.  Keegstra's original conviction.  The case was viewed as a landmark ruling in upholding the constitutionality of the Criminal Code provisions, as Mr.  Keegstra had claimed that the charge violated his rights to freedom of expression provided for in the Canadian Charter of Rights and Freedoms.  This argument was decisively rejected by the Supreme Court.  

One of the fundamental rights of citizens living in a society that professes to be a democracy is the right to freely express personal opinions on issues of the day.  This is a right that must be zealously guarded by the citizens and institutions of such a society.  However, there is an obligation also to see to it that such rights are not abused, which is why provisions such as section 319 of the Criminal Code exist.  The tension in maintaining an appropriate balance between the personal rights of expression and the collective rights of groups to live free from attacks based solely on hatred is something that will continue in our democratic societies as long as we continue to exist as such.