Regulating Hate Speech in Canada

• Author: Richard Moon
• Pages: 441-464

441

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

442

least their Internet versions), including Maclean’s magazine and

smaller publications such as the Western Standard and Catholic

Insight.

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

CHRA.3

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 www.chrc-ccdp.gc.ca [Moon].

3 Ibid.

4 Criminal Code, RSC 1985, c C-46, ss 318 & 319.