Regulating Hate Speech in Canada

AuthorRichard Moon
Chapter 15
Regulating Hate Speech in Canada
Richard Moon
A. Introduction
I was commissioned by the Canadian Human Rights Commission
(CHRC) in the summer of 2008 to write a report on the regu-
         
section 13 of the Canadian Human Rights Act.1 Section 13 pro-
hibits the repeated communication on the phone system or the
Internet of any matter “that is likely to expose a person or persons
to hatred or contempt by reason of the fact that person or those
      
discrimination,” such as race, gender, and religion.
I was asked to do this at a time when the CHRC was coming
increased scrutiny of the Commission. First, the CHRC (and other
Human Rights Commissions (HRCs)) had in recent years received
widely held views — notably, speech linking Muslims to violence,
and anti-gay speech that rested on established religious views.
Until recently, virtually all of the complaints received by the CHRC
concerned postings on neo-Nazi or white-supremacist websites.
Second, the CHRC, as well as several of the provincial HRCs, had
investigated complaints against mainstream publications (or at
1 RSC 1985, c H-6 [CHRA]. The House of Commons voted to repeal s. 13
in June 2012, after this paper was written.
Richard Moon
least their Internet versions), including Maclean’s magazine and
smaller publications such as the Western Standard and Catholic
I submitted my report to the CHRC in late October 2008. In
the report I recommended the repeal of section 13 of the CHRA
so that the CHRC and the Canadian Human Rights Tribunal
(CHRT) would no longer deal with hate speech, and in particular
hate speech on the Internet. I argued that hate speech should
continue to be prohibited under the Criminal Code.2 I took the
to a narrow category of extreme expression — that which threat-
 
— and that the restriction of this narrow category of expression
should be dealt with under the Criminal Code rather than the
B. Hate Speech Law
Hate speech in Canada is currently restricted by both federal and
provincial laws. The Criminal Code of Canada prohibits the advo-
cacy or promotion of genocide, the incitement of hatred against
  
breach of the peace, and the wilful promotion of hatred against
  4 Investigations into allegations of hate
speech under the Criminal Code are conducted by the police. An
individual may be charged under the wilful promotion of hatred
provision only with the consent of the provincial attorney general.
2 Richard Moon, “Report to the Canadian Human Rights Commission Con-
cerning Section 13 of the Canadian Human Rights Act and the Regula-
tion of Hate Speech on the Internet” (Canadian Human Rights Commis-
sion, 2008), online: CHRC [Moon].
3 Ibid.
4 Criminal Code, RSC 1985, c C-46, ss 318 & 319.

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