The Key Provisions and Case Law Which Define Hate Speech - LawNow Magazine

The Key Provisions and Case Law Which Define Hate 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which prohibited certain communications which could expose a person or persons to hatred; however, this provision was repealed in 2013.

Despite section 13 of the Canadian Human Rights Act having been repealed, laws in Alberta, British Columbia, Saskatchewan and the Northwest Territories still prohibit the promotion of hatred and contempt.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.

Hate speech provisions in provincial human rights legislation are to be applied objectively by using the standard of “a reasonable person”.

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 potential to not only threaten the self-dignity of those targeted but might also result in more organized forms of discrimination or violence against minority groups.

When defining the phrase “promotes hatred against any identifiable group”, the Court determined that “promotes” requires more than simple encouragement – the accused must intend or foresee “as substantially certain a direct and active simulation of hatred against an identifiable group”. The word “hatred”, in the context of section 319(2), is an intense emotion that is associated with emotions of “vilification” and “detestation”. When “hatred” is exercised against individuals of identifiable groups, it implies that those individuals are less-than and are to be treated as such.

Canada (Human Rights Commission) v. Taylor, [1990] 3 SCR 892

In Canada (Human Rights Commission) v. Taylor, Mr. Taylor was charged under section 13(1) of the Canadian Human Rights Act. This now-repealed provision made it a discriminatory practice to use telecommunication in such a manner that is likely to expose a person or persons to hatred or contempt on the basis of a prohibited ground of discrimination. Mr. Taylor distributed cards to the public which contained a phone number that, when dialed, lead to pre-recorded anti-Semitic messages.

… 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.Although section 13(1) of the Canadian Human Rights Act was found to infringe the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms, the provision was upheld as a justified limit. The Court found that, when the phrase “hatred or contempt” is being interpreted in a manner consistent with parliament’s objective to reduce forms of expression that cause harm or violence toward individuals, there is no conflict between a meaningful interpretation of section 13(1) and freedom of expression. In determining this, the Court affirmed the Human Rights Tribunal’s reading of section 13(1) in Nealy v. Johnston which stated that section 13(1) refers to “unusually strong and deep-felt emotions of detestation, calumny and vilification”.

Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11

In Saskatchewan (Human Rights Commission) v. Whatcott, the accused distributed anti-gay flyers in Regina and Saskatoon. He was charged under section 14(1) of The Saskatchewan Human Rights Code, which prohibited the publication or display of any representation that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground”. The Supreme Court of Canada held that the wording “ridicules, belittles or otherwise affronts the dignity” was constitutionally invalid. However, the Court found the prohibition on any representation “that exposes or tends to expose to hatred” was a reasonable limit on the freedom of expression and demonstrably justified in a free and democratic society.

The word “hatred”, in the context of section 319(2), is an intense emotion that is associated with emotions of “vilification” and “detestation”. In reaching this decision, the Court unanimously modified the definition of hatred as it had previously defined it in Canada (Human Rights Commission) v. Taylor. As it stands, the test for determining what constitutes “hatred”, in the context of a prohibition of expression in human rights legislation, is determined objectively by asking “whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination”.

There are three important features of this revised, more stringent definition of hatred:

  1. Hate speech provisions in provincial human rights legislation are to be applied objectively by using the standard of “a reasonable person”.
  2. Hate speech provisions only apply to expressions that rise to the high level of “detestation” or “vilification” as previously described in R. v. Keegstra and Canada (Human Rights Commission) v. Taylor. Therefore, these provisions do not capture offensive expressions that fail to arise to “detestation” or “vilification”.
  3. Similar to section 319(2) of the Criminal Code, the expression must be likely to expose a person or persons to hatred. (See para. 56 – 58.)
Conclusion

Broadly speaking, hate speech, as it stands now, under both section 319(2) of the Criminal Code and provincial human rights legislation, are expressions of “detestation” or “vilification” made publicly that expose a person or persons to hatred, or are likely or substantially certain to expose a person or persons to hatred. Through these important decisions, the Supreme Court of Canada has established that provisions prohibiting hate speech are justified limits on freedom of expression so long as terms such as “hatred” are carefully defined to avoid vagueness and subjectivity.

Authors:

Ryley Schmidt
Ryley Schmidt is a law student at the Faculty of Law, University of Alberta and a volunteer with Pro Bono Students Canada.
 


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