The Key Provisions and Case Law Which Define Hate Speech.

• Author: Schmidt, Ryley
• Position: Special Report: Freedom of Speech

Within Canadian society, hate speech and the promotion of hatred is addressed at both the federal and provincial level. At the federal level, the key piece of legislation addressing this issue is the Criminal Code. Section 319(2) makes it an offence to publicly communicate statements that wilfully promote hatred against identifiable groups. The term 'identifiable groups' refers to 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--as defined in section 318(4) of the Criminal Code. Section 13 of the Canadian Human Rights Act was an additional tool at the federal level which prohibited certain communications which could expose a person or persons to hatred; however, this provision was repealed in 2013.

Despite section 13 of the Canadian Human Rights Act having been repealed, laws in Alberta, British Columbia, Saskatchewan and the Northwest Territories still prohibit the promotion of hatred and contempt. Moreover, all provinces and territories, with the exception of Yukon, contain provisions in their respective human rights legislation that prohibit forms of display that discriminate or incite discrimination.

However, anti-hate legislation has not gone without challenge. As the cases below will highlight, section 319(2) of the Criminal Code and human rights legislation (both federal and provincial) prohibiting the promotion of hatred and contempt have been challenged under section 2(b) of the Canadian Charter of Rights and Freedoms--freedom of thought, belief, opinion, and expression. Despite these challenges, the Supreme Court of Canada has continued to hold that limits on expression are justified and in the process have continued to flesh out what is meant by terms such as "hatred".

R. v. Keegstra, [1990] 3 SCR 697

In R. v. Keegstra, the Supreme Court of Canada grappled with the constitutionality of section 319(2) of the Criminal Code (then section 281.2(2)) as a restriction on freedom of expression. Mr. Keegstra, a high school teacher in Alberta, was charged under the provision for communicating anti-Semitic comments to his students. The Court held that, although section 319(2) of the Criminal Code infringed on the guarantee of freedom of expression, it was a justified limit on that freedom. The Court recognized that hate propaganda and hate speech are pressing concerns for Canadian society. They have the...