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2. Canadian Hate Speech Law

(a) An Overview of Canadian Hate Speech Law

Hate speech in Canada is currently restricted or regulated by both federal and provincial laws. The Criminal Code of Canada prohibits the advocacy or promotion of genocide, the incitement of hatred against an identifiable group, when this incitement is likely to lead to a breach of the peace, and the wilful promotion of hatred against an identifiable group. Investigations into allegations of hate speech under the Criminal Code are conducted by the police. If an individual is charged with one of these offences, his or her trial will be conducted in a court of law. To be convicted under any of these offences, the accused must be shown to have committed the relevant act and to have done so either intentionally or with knowledge or awareness of the nature of her/his actions. If found by the court to have committed the offence, he or she may be sentenced to a fine or a term of imprisonment. The Criminal Code also includes a section that enables a court to order the seizure or erasure of material that the court determines to be "hate propaganda."

In contrast, the ban on hate speech in section 13 of the CHRA (which applies to telephonic or Internet communication that is likely to expose the members of an identifiable group to hatred or contempt) is administered by the CHRC. If the CHRC receives a complaint that falls within the general scope of the CHRA and is not trivial, frivolous, vexatious or made in bad faith it will investigate the complaint to determine whether it should be referred to the CHRT for adjudication. The CHRC may try to facilitate a non-adjudicative resolution of the complaint. The purpose of section 13 and the other provisions of the CHRA is to prevent or rectify discriminatory practices or to compensate the victims of discrimination for the harm they have suffered. The purpose is not to condemn and punish the person who committed the discriminatory act. In contrast to the criminal ban on hate speech, an individual may be found to have breached section 13 even though she/he did not intend to expose others to hatred or realize that his/her communication might have this effect. The focus is on the effect of the act and not the intention with which it was performed. The ordinary remedy against an individual who is found by the CHRT to have breached the section is an order that she/he cease her/his discriminatory practices.

The human rights codes of British Columbia, Alberta, Saskatchewan and the Northwest Territories include a provision similar to section 13 of the CHRA, which prohibits signs, notices and other representations that are likely to expose the members of an identifiable group to hatred or contempt. There is some minor variation in the scope of these different provincial and territorial laws.

A number of federal statutes or regulations prohibit hate speech as part of a larger regulatory scheme dealing with a particular form or system of communication. For example, section 8 of the Broadcasting Distribution Regulations prohibits the broadcasting of "any abusive comment or abusive pictorial representation that, when taken in context, tends to or is likely to expose an individual or group or class of individuals to hatred or contempt on the basis of race, national origin, colour, religion, sex, sexual orientation, age or mental or physical disability ...."³

(b) Section 13 of the Canadian Human Rights Act

(i) The Text of Section 13

Section 13 of the CHRA provides as follows:

(1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.

Section 3(1) provides that "the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted."

The principal remedy available to the CHRT, following a determination that section 13 has been breached, is an order "that the person cease the discriminatory practice and take measures ... to prevent the same or a similar practice from occurring in future...." The CHRT may also order the person to pay an amount not exceeding $20,000 "to a victim specifically identified in the communication that constituted the discriminatory practice." Finally the CHRT may order the person to pay a penalty of not more than $10,000; however, in deciding whether to order payment of a penalty, the CHRT must take into account "(a) the nature, circumstances, extent and gravity of the discriminatory practice; and (b) the wilfulness or intent of the person who engaged in the discriminatory practice, any prior discriminatory practices that the person has engaged in and the person’s ability to pay the penalty."⁴ Section 57 of the CHRA provides that for the purposes of enforcement a tribunal order may be made an order of the Federal Court. The consequence of this is that a breach of the CHRT’s order constitutes a contempt of court and is punishable by fine or imprisonment.

Section 12 of the Act is not immediately relevant to the issues addressed in this report, but it may become more important if section 13 is repealed. Section 12 provides as follows:⁵

It is a discriminatory practice to publish or display before the public or to cause to be published or displayed before the public any notice, sign, symbol, emblem or other representation that

(a) expresses or implies discrimination or an intention to discriminate, or

(b) incites or is calculated to incite others to discriminate if the discrimination expressed or implied, intended to be expressed or implied or incited or calculated to be incited would otherwise, if engaged in, be a discriminatory practice described in any of sections 5 to 11 or in section 14.

(ii) The History of Section 13

Section 13 was included in the CHRA at the time of its enactment in 1977 to deal with recorded telephone hate messages. At the time, hate lines were seen as an emerging problem. There was a concern that because they operate as a series of one-on-one "private" communications, hate lines might not be caught by 319(2) of the Criminal Code, which by its terms does not apply to "private" conversations.

More particularly the impetus for the inclusion of section 13 was a hate line operated in Toronto by the Western Guard and its leader, John Ross Taylor. Members of the public who dialled a telephone number that had been publicized by the Western Guard would hear a short pre-recorded hate message. The Western Guard phone line was the subject of the first section 13 complaint and the first case heard by the CHRT. Mr. Taylor and his organization were found by the CHRT to have breached section 13, and a cease and desist order was issued against them. Mr. Taylor nevertheless continued to operate the hate line. Following an application by the CHRC to the Federal Court, he was found in contempt of court and sentenced to one year in prison.⁶ His sentence was suspended on the condition that he discontinue his discriminatory activities. He did not and, as a consequence, the sentence was enforced against him. Following his release from prison, Mr. Taylor re-established the phone line. The CHRC again commenced contempt proceedings against him. However, the Canadian Charter of Rights and Freedoms⁷ came into force in 1982, shortly before the second contempt proceeding. Mr. Taylor argued at that proceeding that section 13 was unconstitutional because it violated section 2(b) of the Charter of Rights, the freedom of expression right, and could not be justified under section 1, the limitations provision. The constitutional issue was finally resolved by the Supreme Court of Canada, which in a majority decision held that section 13 did not breach the Charter.⁸ In section 3 of this report, I will say more about the Supreme Court of Canada’s judgment in this case.⁹

Several other section 13 cases followed the Taylor decision. Of particular significance was a complaint brought in 1996 against Ernst Zundel that raised the issue of whether section 13 applied to hate messages on the Internet. It was alleged that Mr. Zundel, then a Canadian resident, oversaw the operation of a US-based website, the Zundelsite, that promoted hatred against Jews. At the time of the Zundel complaint, section 13 prohibited hate messages that were communicated "telephonically" by "means of the facilities of a telecommunication undertaking within the legislative authority of Parliament" but did not specifically apply to the Internet. The CHRT, however, held that section 13 applied to the Internet because it operated through the telephone system.¹⁰ According to the Tribunal the term "telephonically" should not be understood as limiting the application of the section to "the precise sensory format" or to "the particular device used for the communication."¹¹ The CHRT also held that the site included content that was contrary to section 13 and that Zundel was responsible for its operation. In 2001, shortly before the CHRT rendered its judgment in Zundel, the federal government amended section 13, adding subsection (2) above, which specifically provided that the section applied to hate speech on the Internet.

(iii) The Interpretation of the Score of Section 13

The CHRA prohibits several different forms of discrimination, including discrimination in employment and in the provision of goods and services. But while the ban on these other forms of discrimination has been interpreted broadly by the courts and the CHRT, the scope of the section 13 ban has been more narrowly defined. The reasons for this, which I will explore later in the report, are both practical and principled. A broad ban on discriminatory speech cannot be consistently enforced and would significantly undermine freedom of expression interests.

In CHRC v. Taylor, a majority of the Supreme Court of Canada, in a judgment written by Chief Justice Dickson, held that section 13 of the CHRA breached section 2(b) of the Charter, the freedom of expression provision, but was a "reasonable" and "demonstrably justified" limit under section 1. In defining the scope of section 13, and more particularly the terms "hatred" and "contempt," the Chief Justice drew on the CHRT decision of Nealy v. Johnston,¹² which he quoted in his judgment:

With "hatred" the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one "hates" another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of "looking down" on another or others. It is quite possible to "hate" someone who one feels is superior to one in intelligence, wealth or power. None of the synonyms used in the dictionary definition for "hatred" give any clues to the motivation for the ill will. "Contempt" is by contrast a term which suggests a mental process of "looking down" upon or treating as inferior the object of one’s feelings. This is captured by the dictionary definition relied on in Taylor [the CHRT decision] ... in the use of the terms "despised," "dishonour" or "disgrace". Although the person can be "hated" (i.e. actively disliked) and treated with "contempt" (i.e. looked down upon), the terms are not fully coextensive, because "hatred" is in some instances the product of envy of superior qualities, which "contempt" by definition cannot be.¹³

According to Dickson CJ, this interpretation of section 13, which focuses on "unusually strong and deep-felt emotions of detestation, calumny and vilification" is not "particularly expansive." Dickson CJ, however, noted that "the nature of human rights legislation militates against an unduly narrow reading of section 13(1)" and indicated that he had no "wish to transgress the well-established principle that the rights enumerated in such a code should be given their full recognition and effect through a fair, large and liberal interpretation." Even though "the section may impose a slightly broader limit upon freedom of expression than does section 319(2) [the hate promotion provision] of the Criminal Code [...] the conciliatory bent of a human rights statute renders such a limit more acceptable than would be the case with a criminal provision." In his view, "as long as the Human Rights Tribunal continues to be well aware of the purpose of section 13(1) and pays heed to the ardent and extreme nature of the feeling described in the phrase ‘hatred or contempt,’ there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section."

In her dissenting judgment Madame Justice McLachlin argued that the "absence of any requirement of intent or foreseeability of the actual promotion of hatred or contempt," while "consistent with the remedial ... focus of human rights legislation," broadened the scope of the section so that it included communication that ought not to be prohibited. In response to this argument, that section 13 is overly broad in its scope because it lacks an intention requirement, Chief Justice Dickson observed that the focus of the section "is solely upon likely effects, it being irrelevant whether an individual wishes to expose persons to hatred or contempt on the basis of their race or religion."¹⁴ According to Dickson CJ:

The preoccupation with effects, and not with intent is readily explicable when one considers that systemic discrimination is much more widespread in our society than is intentional discrimination. To import a subjective intent requirement into human rights provisions, rather than allowing tribunals to focus solely upon effects, would thus defeat one of the primary goals of anti-discrimination statutes. At the same time, however, it cannot be denied that to ignore intent in determining whether a discriminatory practice has taken place according to s. 13(1) increases the degree of restriction upon the constitutionally protected freedom of expression. This result flows from the realization that an individual open to condemnation and censure because his or her words may have an unintended effect will be more likely to exercise caution via self-censorship.

It is important to remember, wrote Dickson CJ, that, in contrast to criminal law, the purpose of human rights legislation is to "compensate and protect" the victim rather than "stigmatize or punish" the person who has discriminated against her/him.

In section 3 of the report I will examine more closely the Supreme Court of Canada’s attempt in the Taylor decision to define the scope of section 13 so that it fits with the broader purposes of anti-discrimination law but is also consistent with the public commitment to freedom of expression. I will argue that a ban on hate speech that is narrowly drawn to minimize interference with freedom of expression does not sit easily within a human rights law that defines discrimination broadly and is oriented towards reconciliation and compensation.¹⁵

The Taylor decision remains the touchstone for both the CHRC and the CHRT when applying section 13. In Warman v. Kouba¹⁶ the CHRT identified certain "hallmarks of hate," factors the Tribunal considered relevant in deciding whether the expression meets the Taylor test for breach of section 13. The CHRT drew its list of "hallmarks" from "the growing body of section 13 jurisprudence." According to the Tribunal:

The hallmarks or attributes of hate messages are what distinguishes them from legitimate speech that is not subject to sanction under section 13 of the Act. All of these attributes involve an attack on the inherent self-worth and dignity of the members of the targeted group.¹⁷

The list was composed of the following attributes: "(a) The targeted group is portrayed as a powerful menace that is taking control of the major institutions in society and depriving others of their livelihoods, safety, freedom of speech and general well-being"; "(b) The messages use ‘true stories’, news reports, pictures and references from purportedly reputable sources to make negative generalization about the targeted group"; "(c) The targeted group is portrayed as preying upon children, the aged, the vulnerable, etc."; "(d) The targeted group is blamed for the current problems in society and the world"; "(e) The targeted group is portrayed as dangerous or violent by nature"; "(f) The messages convey the idea that members of the targeted group are devoid of any redeeming qualities and are innately evil"; "(g) The messages communicate the idea that nothing but the banishment, segregation or eradication of this group of people will save others from the harm being done by this group"; "(h) The targeted group is de-humanized through comparisons to and associations with animals, vermin, excrement, and other noxious substances"; "(i) Highly inflammatory and derogatory language is used in the messages to create a tone of extreme hatred and contempt"; "(j) The messages trivialize or celebrate past persecution or tragedy involving members of the targeted group"; and (k) the messages contain "Calls to take violent action against the targeted group". This list, said the Tribunal, "is by no means exhaustive," but it may "provide a useful context" for the determination of whether the "material is more likely than not to expose members of the targeted group to hatred or contempt."¹⁸

Section 13 is breached only if an individual or group communicates its hate message "repeatedly." The requirement, standard in hate speech laws, that the communication be public is adapted to a technology that involves one-on-one interaction. Each time a phone message is played, it is heard by a single individual and so may be described as a "private" communication; however, as Chief Justice Dickson in Taylor observed, "[w]hile conversations almost always take place on a one-to-one basis, the overall effect of phone campaigns is undeniably public, and the reasonable assumption to make is that these campaigns can have an effect upon the public’s beliefs and attitudes." The requirement that the message be made "repeatedly" leads to a distinction between private phone calls, which are not banned even though they may involve the expression of hateful views, and recorded hate message phone lines on which "repeated one-on-one communication adds up to mass communication."¹⁹ In the Zundel case, the CHRT held that hate messages posted on a website were communicated "repeatedly." The Tribunal found that a website posting, much like a recorded phone message, "waits dormant" until activated by the caller or browser.²⁰ The CHRT noted that the Internet facilitates "the repeated transmission of material on a chosen site" and offers "an inexpensive means of mass communication." However, communication on the Internet takes many different forms, which are more or less controlled or accessible. The CHRT has addressed the issue of the private character of different forms of Internet communication on a case-by-case basis. Provided the communication is not widely accessible (i.e., that access is restricted to a small group), it may be regarded as "private" or, in the terms of section 13, as not made "repeatedly."²¹

(iv) The CHRC and the Section 13 Complaint Process

The CHRC consists of a Chief Commissioner, a Deputy Chief Commissioner and three to six other members who are appointed by the Governor in Council (s. 26(1) CHRA). The Chief Commissioner and the Deputy Chief Commissioner are full-time members of the Commission, while the other members may be appointed as either full-time or part-time members (s. 26(2)). Each full-time member of the Commission may be appointed for a term not exceeding seven years, and each part-time member may be appointed for a term not exceeding three years (s. 26(3)), although a member may be reappointed (s. 26(5)). The members of the Commission hold office during good behaviour and may only be removed by the Governor in Council on address of the Senate and House of Commons (s. 26(4)). The Commission may appoint "officers and employees as are necessary for the proper conduct" of its work (s. 32(1)).

The Commission is empowered to carry out research and educational programs related to the CHRA’s general purpose, which is:

to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted. (s. 2)

However, the principal function of the CHRC is the processing and investigating of complaints of discrimination. The CHRA prohibits different forms of discrimination, including discrimination in the "provision of goods, services, facilities or accommodation customarily available to the general public" (s. 5), discrimination in the provision of commercial premises and residential accommodation (s. 6), discrimination in employment (s. 7), and, of course, discrimination in the form of telephonic communication "that is likely to expose a person or persons to hatred or contempt" (s. 13).

The process established under the Act is essentially the same regardless of the particular form of the alleged discrimination. Section 40 of the CHRA provides that "any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission." The CHRC may also initiate a complaint "where it has reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice." The CHRC considers on a case-to-case basis whether conciliation is appropriate. In contrast to other discrimination complaints, conciliation tends to play only a minor role in section 13 cases because the expression that is the subject of the complaint is often extreme in character, and because the parties ordinarily have no relationship prior to the complaint. In exceptional circumstances the CHRC has facilitated a non-adjudicative resolution of the complaint – most often an agreement by the respondent to remove the material that is the subject of the complaint from the website. Specialized "teams" oversee the processing and investigation of the different forms of discrimination. The investigation of section 13 complaints is overseen by a multidisciplinary Anti-Hate Team that specializes in hate speech complaints.

The first section 13 complaint, which was against John Ross Taylor and the Western Guard, was initiated by the Commission. Since that first complaint, however, the CHRC has declined to exercise its power to initiate section 13 complaints and has relied instead on community organizations and interested individuals to take the initiative. Inquiries, or potential complaints, from members of the public or community organizations are referred to an early resolution analyst or adviser, who provides advice about the process and the Commission’s jurisdiction to the person or group making the inquiry. Only a small number of the inquiries received by the CHRC result in formal complaints. If the individual or group wishes to proceed with a section 13 complaint, the early resolution adviser will provide them with a complaint kit, which includes a form on which they are to provide basic information about the communication that is alleged to be in breach of section 13. The complaint must be "accepted" by the CHRC if it is submitted in the proper form. The early resolution adviser, with the assistance of the members of the Anti-Hate Team, will review the completed complaint form to ensure that the complaint falls within the jurisdiction of the CHRC – and in particular that it meets the requirements set out in section 40(5), which deals with geographical jurisdiction, and section 41, which provides as follows:

(1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that

(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;

(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;

(c) the complaint is beyond the jurisdiction of the Commission;

(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or

(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.

Following receipt or "acceptance," the CHRC may determine that the complaint is excluded on one of the grounds set out in either section 40 or 41 of the Act. If the complaint is excluded on one of these grounds, it will be returned to the complainant with "a written notice of its decision ... setting out the reason for its decision" (s. 42(1)). If, on the other hand, the complaint is not excluded, it must be processed by the CHRC. An investigator or human rights officer who specializes in hate speech complaints will be assigned to the case and the respondent will be notified that a complaint against him or her is being considered by the CHRC. The investigation officer will then gather information. In the case of a complaint about hate on the Internet, she/he will confirm that the material appeared on the site and will seek to confirm or discover the identity of the individual responsible for the alleged hate speech. In pursuing the investigation, the investigator may apply to the Federal Court for a warrant enabling him/her to enter and search premises and to require production of relevant documents. During the course of the investigation, the investigator will also invite submissions from the respondent and a response to those submissions from the complainant.

Once the investigator has collected the necessary information, she/he will draft an investigation report setting out the particulars of the complaint and the conclusions reached, which will then be reviewed by the Anti-Hate Team. The investigation report will address the following questions: whether the material that is the subject of the complaint was observed on the Internet; whether the communication of the material has taken place, at least in part, in Canada; whether the respondent communicated or caused to be communicated the material which forms the basis of the complaint; and whether the material is likely to expose a person or persons to hatred or contempt because of membership in an identifiable group. In determining this last issue, the investigator relies on the test set out in the Supreme Court of Canada in the Taylor case and on the "hallmarks of hate" identified by the CHRT. The parties will be provided with a copy of the report and invited to make written submissions. Once these submissions are received, each party will be invited to comment on the submissions of the other. The final report, along with the parties’ comments, will be submitted to the Commissioners (or a Commissioner who has been designated to receive the report). The Commissioners may ask the CHRT to institute an inquiry into the complaint, if they conclude that "having regard to all the circumstances of the complaint, an inquiry ... is warranted" or they "shall dismiss the complaint" if they conclude that an inquiry is not warranted. The Commission will notify the parties of its decision. The time it takes from when the complaint is first received by the CHRC until the Commission makes its decision either to dismiss the complaint or to send it on to the CHRT for an "inquiry" or adjudication is seldom more, and often much less, than a year.

On receipt of a case from the CHRC, the chairperson of the CHRT "[s]hall institute an inquiry by assigning a member of the Tribunal to inquire into the complaint" (s. 49(2)). The chairperson may assign a panel of three members in complex cases. All complaints sent to the CHRT are subject to mandatory mediation, prior to adjudication. At the adjudication the complainant and respondent may appear in person or be represented by counsel. The Tribunal may also permit "any other interested party" to appear and make recommendations. The CHRC is not required to appear at the adjudication but may do so "to represent the public interest." To this point the CHRC has been represented by counsel in all but one of the section 13 cases that have come before the Tribunal. At the Tribunal, the burden of proof lies with the complainant and the standard of factual proof is "on a balance of probabilities," the ordinary civil standard. Proceedings at the Tribunal are reasonably formal, but, as is the case with most tribunals, the procedural rules, including rules of evidence, are less strictly applied than in criminal cases. Section 48.9(1) provides that "Proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow."

Section 13 complaints represent a very small part of the CHRC’s workload. Between January 2001 and September 2008 the CHRC received 73 section 13 complaints (about 2% of the total number of complaints received by the CHRC). Of these, 32 were closed or dismissed by the CHRC and 34 were sent to the CHRT for adjudication. (When these numbers were compiled in September 2008, 2 of the 73 complaints were under investigation by the CHRC and 5 were awaiting decision by the CHRC.) Of the 34 complaints that were sent to the CHRT, 10 were resolved prior to adjudication. In September 2008, 8 of the complaints forwarded to the CHRT were awaiting conciliation/adjudication. In the remaining 16 cases the CHRT found that section 13 had been breached and imposed a cease and desist order. In several of these cases the Tribunal also imposed monetary penalties. Since 2001 the CHRT has issued approximately 137 decisions on all grounds of discrimination under the CHRA.

In preparing this report I repeatedly came across shocking misdescriptions of the CHRC’s process. These misdescriptions appeared not only on marginal websites but also and all too often in the mainstream media. This was a reminder that there are commentators who will say anything to support their larger agenda and have no particular interest in being accurate.

(c) The Criminal Code Hate Speech Provisions

The criminal provisions dealing with hate speech, including sections 318 and 319, were added to the Criminal Code in 1970, following the recommendations of the Report of the Special Committee on Hate Propaganda in Canada (the Cohen Committee).²²

Section 318 prohibits the advocacy or promotion of genocide:

(1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(2) In this section, "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or

(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

Section 319 of the Criminal Code bans the incitement of hatred and the wilful promotion of hatred. The section provides as follows:

(1) Every one who, by communicating statements in a public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against an identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Section 319(3) of the Code provides a number of defences to the charge of wilfully promoting hatred:

No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.

Subsection (7) provides definitions and clarifications of some of the important terms in the section. In particular "communicating" is said to include communicating "by telephone, broadcasting or other audible or visible means"; "identifiable group" means any section of the public identified by colour, race, religion, ethnic origin or sexual orientation; "public place" includes "any place to which the public have access as of right or by invitation, express or implied"; and finally, "statements" is broadly defined to include "words spoken or written or recorded electronically or electro-magnetically or otherwise" as well as "gestures, signs or other visible representations." Significantly, no prosecution may be brought under section 319(2) without the consent of the Attorney General of the particular province.

The Supreme Court of Canada in Mugesera v. Canada²³ described the elements of the section 319(2) offence of wilfully promoting hatred. The term "promotes," said the Court, means to actively support or instigate and not simply to encourage. The term "hatred" connotes "emotion of an intense and extreme nature that is clearly associated with vilification and detestation."²⁴ According to the Court, "[o]nly the most intense forms of dislike fall within the ambit of this offence."²⁵ Proof that the communication caused actual hatred is not required. The law’s purpose is to prevent the risk of serious harm caused by hate propaganda. In determining whether the speech conveyed hatred, the court must take into account the audience and the social and historical context of the speech. In R. v. Buzzanga and Durocher²⁶ the Ontario Court of Appeal held that an individual would be found to have breached section 319(2) only if he/she had as a conscious purpose the promotion of hatred against the identifiable group, or if he/she foresaw that the promotion of hatred against that group was certain to result from her/his communication. The individual "must desire that the message stir up hatred."²⁷ The Court in Keegstra indicated that when determining whether the accused intended to promote hatred, "the trier will usually make an inference as to the necessary mens rea based upon the statements made."²⁸

Other relevant Criminal Code sections include section 320 and section 320.1, which provide for the seizure of hate propaganda that is published or the erasure of hate propaganda from a computer system:

[S. 320] (1) A judge who is satisfied by information on oath that there are reasonable grounds for believing that any publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is hate propaganda shall issue a warrant under his hand authorizing seizure of the copies. (2) Within seven days of the issue of a warrant under subsection (1), the judge shall issue a summons to the occupier of the premises requiring him to appear before the court and show cause why the matter seized should not be forfeited to Her Majesty. (3) The owner and the author of the matter seized under subsection (1) and alleged to be hate propaganda may appear and be represented in the proceedings in order to oppose the making of an order for the forfeiture of the matter. (4) If the court is satisfied that the publication referred to in subsection (1) is hate propaganda, it shall make an order declaring the matter forfeited to Her Majesty in right of the province in which the proceedings take place, for disposal as the Attorney General may direct. 5) If the court is not satisfied that the publication referred to in subsection (1) is hate propaganda, it shall order that the matter be restored to the person from whom it was seized forthwith after the time for final appeal has expired.[...]

[S. 320.1] (1) If a judge is satisfied by information on oath that there are reasonable grounds for believing that there is material that is hate propaganda within the meaning of subsection 320(8) or data within the meaning of subsection 342.1(2) that makes hate propaganda available, that is stored on and made available to the public through a computer system within the meaning of subsection 342.1(2) that is within the jurisdiction of the court, the judge may order the custodian of the computer system to

(a) give an electronic copy of the material to the court;

(b) ensure that the material is no longer stored on and made available through the computer system; and

(c) provide the information necessary to identify and locate the person who posted the material.²⁹

Under section 320.1 a judge may order the removal of hate propaganda from the Internet, whether or not a prosecution is pursued under section 319. The issuance of an order under section 320.1(1) does not depend on a determination that the author of the posting or controller of the website "wilfully" promoted hatred. Indeed, under this section an ISP could be ordered to take down a site, even though the identity of the author of the hate speech cannot be determined.

Relatively few prosecutions have been brought under section 319, and there have been even fewer convictions. Between 1994 and 2004 there were 93 prosecutions under section 319. Thirty-two convictions were entered and of these 27 resulted in prison sentences and 5 in conditional sentences.³⁰ It is not clear whether the number of prosecutions is small because the police do not pursue hate promotion claims or because provincial Attorneys General are reluctant to give their consent to prosecution. There is certainly a perception in some provinces that the consent requirement is a barrier to prosecution – and has the effect of discouraging police investigations of hate speech on the Internet and elsewhere. It appears that section 320.1 has been invoked on only one occasion.³¹

In R. v. Keegstra, which was decided at the same time as Taylor, the Supreme Court of Canada held that the Criminal Code ban on the wilful promotion of hatred did not breach the Charter. The Court’s judgment is described in more detail in section 3 of this report.

(d) Provincial and Territorial Human Rights Codes

The human rights laws of Alberta, British Columbia, Saskatchewan, and the Northwest Territories each include a provision similar to section 13.³² For example, section 7 of the BC Human Rights Code provides that:

A person may not publish issue or display or cause to be published, issued or displayed any statement, publication, notice, sign, symbol, emblem or other representation that
[...]
(b) is likely to expose a person or a group of persons to hatred or contempt because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.

Section 14 of the Saskatchewan Human Rights Code is potentially broader in its scope since it extends not simply to material that exposes, or tends to expose, the individual to hatred but also to material that "ridicules, belittles, or otherwise affronts the dignity of" the person. However, the section only applies to communication in the form of a "notice, sign, symbol, emblem or other representation."

Guided by the Supreme Court of Canada’s judgment in Taylor, the human rights tribunal in each of these provinces or territories has interpreted the relevant code section narrowly as a ban on extreme expression that is hateful or contemptuous in character. The BC Human Rights Tribunal has developed a two-part test for determining whether the expression is caught by section 7:

First, does the communication itself express hatred or contempt of a person or group on the basis of one or more of the listed grounds? Would a reasonable person understand this message as expressing hatred or contempt in the context of the expression? Second, assessed in this context, is the likely effect of the communication to make it more acceptable for others to manifest hatred or contempt against the person or group concerned? Would a reasonable person consider it likely to increase the risk of exposure of target group members to hatred or contempt? ³³

In Saskatchewan Human Rights Commission v. Bell³⁴ the Saskatchewan Court of Appeal held that section 14 of the Saskatchewan code was breached when a respondent published or displayed a representation which in either purpose or effect "exposed or tended to expose to hatred, belittled, ridiculed or otherwise affronted the dignity of the racial or religious groups depicted therein; and caused or tended to cause others to engage in a discriminatory practice against those persons or groups of persons ..." [emphasis added].

All provincial and territorial human rights laws, except for that in the Yukon Territory, include a provision similar to section 12 of the CHRA, which states that it is unlawful to display any notice, sign, symbol, emblem, or other representation that indicates discrimination or an intention to discriminate against an identifiable group. When this provision was first enacted in Ontario,³⁵ its purpose was to prohibit signs in store windows that indicated that the members of certain racial or ethnic groups would not be served. However, in those jurisdictions that do not have a section 13 equivalent in their code, the discriminatory sign provision has sometimes been interpreted broadly so that it extends to discriminatory speech that appears on signs, and in some provinces, that occurs in publications.³⁶ As Luke McNamara has observed, when broadly interpreted, this provision limits "conduct similar in nature to that at which broader hate speech laws are directed." ³⁷

(e) The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms protects a variety of rights from government interference, including legislation. These rights include freedom of conscience and religion, freedom of expression and the right to equality:

s.2 Everyone has the following fundamental freedoms:

a) freedom of conscience and religion;

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

c) freedom of peaceful assembly; and

d) freedom of association.

[...]

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The rights and freedoms in the Charter are subject to limits that are "prescribed by law" and are "reasonable" and "demonstrably justified in a free and democratic society." The Charter also contains interpretive provisions such as section 27, which provides that:

This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

As noted above, the Supreme Court of Canada in separate judgments ruled that section 13 of the CHRA and section 319(2) of the Criminal Code are compatible with the Charter. In each case the Court found that the law breached section 2(b), freedom of expression, but was a justified limit under section 1.

(f) International Treaties

Under international law Canada is obligated to protect the freedom of expression of its citizens but also to protect its citizens from exposure to hate speech. Article 19 of the Universal Declaration of Human Rights provides that:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Similarly, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

At the same time, however, section 19 of the ICCPR provides that expression may be restricted for certain reasons:

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 20 of the ICCPR obligates states to prohibit "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence." According to the United Nations Human Rights Committee (General Comment 11), there is no conflict between Articles 19 and 20 of the ICCPR:

Article 20 of the Covenant states that any propaganda for war and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. In the opinion of the Committee, these required prohibitions are fully compatible with the right of freedom of expression as contained in article 19, the exercise of which carries with it special duties and responsibilities. The prohibition under paragraph 1 extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations, while paragraph 2 is directed against any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, whether such propaganda or advocacy has aims which are internal or external to the State concerned. The provisions of article 20, paragraph 1, do not prohibit advocacy of the sovereign right of self-defence or the right of peoples to self-determination and independence in accordance with the Charter of the United Nations. For article 20 to become fully effective there ought to be a law making it clear that propaganda and advocacy as described therein are contrary to public policy and providing for an appropriate sanction in case of violation. The Committee, therefore, believes that States parties which have not yet done so should take the measures necessary to fulfil the obligations contained in article 20, and should themselves refrain from any such propaganda or advocacy.

Canada is a signatory to the Special Protocol, which enables an individual to bring a complaint to the Human Rights Committee that a state party has breached its obligations under the ICCPR. In 1983 the Human Rights Committee dismissed a complaint brought by John Ross Taylor and the Western Guard that their freedom of expression guaranteed in the ICCPR had been breached by the application of section 13 of the CHRA. The Human Rights Committee observed that:

[...] the opinions which Mr. Taylor seeks to disseminate through the telephone system clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20(2) of the Covenant to prohibit.

Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (which was ratified by Canada in 1970) requires that:

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

Canada has also signed the Additional Protocol to the Convention on Cybercrime (a Convention of the Council of Europe) that calls for the criminalization of acts of a racist or xenophobic nature committed through computer systems.

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