Part II: The Criminal Code and the Canadian Human Rights Act
Parliament has included provisions both in the Criminal Code and in the CHRA to protect those targeted by hatred. Each statute has a different focus and scope, and each possesses inherent challenges in effectively responding to hate. This section provides the factual, contextual and historical background of the current system.
The Criminal Code
The 1966 report of the Special Committee on Hate Propaganda in Canada (known as the Cohen Committee for its distinguished Chair, law dean Maxwell Cohen) laid the groundwork for the enactment of Canada’s legal regime for dealing with the promotion of hatred. The Committee concluded that while the problem of hate propaganda had not reached alarming proportions, it was an issue requiring public action:
Canadians who are members of any identifiable group in Canada are entitled to carry on their lives as Canadians without being victimized by the deliberate, vicious promotion of hatred against them.
In a democratic society, freedom of speech does not mean the right to vilify. The number of organizations involved and the numbers of persons hurt is no test of the issue: the arithmetic of a free society will not be satisfied with over-simplified statistics demonstrating that few are casting stones and not many are receiving hurts.
What matters is that incipient malevolence and violence, all of which are inherent in ‘ hate’ activity, deserves national attention. However small the actors may be in number, the individuals and groups promoting hate in Canada constitute ‘a clear and present danger’ to the functioning of a democratic society…
The Canadian community has a duty, not merely the right, to protect itself from the corrosive effects of propaganda that tends to undermine the confidence that various groups in a multicultural society must have in each other.12
The Cohen Committee report resulted in the 1970 amendments to the Criminal Code that deal with the promotion and incitement to genocide and hatred, as well as the distribution of hate propaganda:
- Section 318 prohibits advocating or promoting genocide against an "identifiable group," that is, any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation;
- Section 319(1) prohibits inciting hatred against an "identifiable group " by communicating in a public place, statements that are likely to lead to a breach of the peace;
- Section 319(2) prohibits communicating statements, other than in private conversation, that wilfully promote hatred against an "identifiable group;"
- Section 320.1 allows for a judge, on application, to issue a warrant of seizure to confiscate materials believed to constitute hate propaganda or to order the shutting down of a website believed to contain such materials.
Please refer to Annex B for the full text of these sections.
Advocating or promoting genocide (s. 318) is an indictable offence punishable by a maximum of five years’ imprisonment. Inciting or wilfully promoting hatred (s. 319) are dual procedure offences, punishable by two years of imprisonment on indictment and up to six months of imprisonment and/or up to a $2,000 fine when proceeded with by way of summary conviction.
Other laws dealing with hate The Criminal Code and CHRA provisions are two of a number of federal laws dealing with hate propaganda and hate motivated activities. These include: |
CHRA Section 13
In the late 1970s, Parliament began to consider proposals to enact a federal human rights code. During these discussions, concerns were raised regarding the inadequacy of the Criminal Code in dealing with a new manifestation of hate propaganda.
The immediate cause for concern was the hate campaign being waged by John Ross Taylor in Toronto. Mr. Taylor, an unrepentant Nazi sympathizer, handed out cards on street corners inviting passers-by to call a phone number to hear a pre-recorded message. Typical of the noxious messages posted (and later found to contravene section 13) was the following:
Where large groups of different races mix in all phases of daily contact, race mixing or miscegenation is inevitable. Compared to race mixing an Atomic War with near total destruction is preferable as race mixing is permanent destruction of the higher values of each race whereas Atomic War will leave a remnant however small that can rebuild but a race mixed society is forever doomed.13
In response to the concerns raised regarding Taylor, Parliament enacted section 13. Since then, the only substantive change to the section was the 2001 amendment included in the Anti-terrorism Act following the tragic events of 9/11. The amendment clarified that section 13 covered hate on the Internet as well as the telephonic communication of hate messages, which was its original purpose.14 The section reads as follows:
13(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 activities 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.
13(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.
13(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.
The Commission’s unique jurisdiction The Commission has jurisdiction only with regard to matters that come under federal jurisdiction as enumerated in section 91 of the Constitution Act (1867). It was possible for Parliament to enact section 13 because telecommunications, including the telephone system and the Internet, are federally regulated. Some provinces have human rights provisions prohibiting the publication of hate messages by means that come under provincial jurisdiction, such as the publication of newspapers. The respective provincial commissions and tribunals deal with complaints regarding these provisions. Some commentators refer to "section 13" when referring to any legislation dealing with hate messages. This is inaccurate and misleading. The provincial and federal commissions, and their respective laws, are independent of each other. |
Section 13 Jurisprudence
The Canadian courts, including the Supreme Court, have ruled that section 13 was enacted for a valid reason and is constitutionally sound. The courts have recognized that the protection of freedom of expression under the Charter — like its protection under international human rights law — is subject to reasonable limits in order to protect individuals and groups from being exposed to hate messages.
The first complaint heard by the Canadian Human Rights Tribunal dealt with the message quoted above and other similar messages recorded and made available by John Ross Taylor. The Tribunal found that the respondents had contravened the CHRA and ordered that they shut down the telephone line.15 By the time the case reached the Supreme Court, the Canadian Charter of Rights and Freedoms had been enacted. In his appeal to the Supreme Court, Taylor alleged that section 13 denied him freedom of expression as guaranteed by section 2(b) of the Charter.
The Court ruled16 that although section 13 infringed freedom of expression, this infringement could be justified under section 1 of the Charter, which provides that the rights in the Charter are subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."17
The Court went on to emphasize that the section targeted only the most extreme forms of expression and not merely those that might be considered offensive:
In sum, the language employed in s. 13(1) of the Canadian Human Rights Act extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity. Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of 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.18
The definitions of "hatred" and "contempt" adopted by the Supreme Court highlight the extreme nature of the types of messages targeted by section 13.
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 . . .
"Contempt" is . . . 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 . . . in the use of the terms "despised," "dishonour" or " disgrace." ... 19
The Supreme Court also stated that "hatred or contempt" in the context of s. 13(1) refers only to "unusually strong and deep-felt emotions of detestation, calumny and vilification" that are "ardent and extreme"20 in nature.
The Court interpreted Parliament’s purpose as limiting only the most extreme edges of expression and leaving unhindered other forms of expression. The Court further determined that, not only was such a narrow limitation consistent with the Charter, but that it was necessary to ensure the well-being of Canadian society.
All decisions of the Commission and the Tribunal on whether a particular message constitutes hatred or contempt under section 13 are determined by rigorously applying the rationale and definitions delineated by the Supreme Court in Taylor. This is sometimes referred to as the "Taylor Test."
The American approach The First Amendment to the Constitution of the United States guarantees freedom of speech. Jurisprudence of the United States’ courts, including the Supreme Court, severely restricts any limitation on speech, including hate speech or propaganda. Under American law, only so called “fighting words;” that is expression that conveys a specific and imminent threat of violence, are regulated. As exemplified by the Keegstra and Taylor cases, the Supreme Court of Canada has taken a different approach. An article written by Mr. Justice Russell Juriansz, Ontario Court of Appeal, examines the U.S. approach to hate speech compared to that adopted by other countries, including Canada. Justice Juriansz concludes: It seems fair to say that the American view is becoming a minority one in the world. Canada is part of what appears to be growing global consensus, which observes that careful restrictions of some forms of speech are both desirable and necessary.
Russell Juriansz, “Combating Hate and Preserving Free Speech: Where is the Line? In Hate on the Net, Canadian Issues, Spring 2006. |
Criminal Code Jurisprudence
The Supreme Court rendered its decision in the Keegstra21 case on the same day in 1990 as the Taylor decision. This decision dealt with the constitutionality of the Criminal Code provisions dealing with the wilful promotion of hatred.
Keegstra was a high school teacher who taught that there was a worldwide Jewish conspiracy. He described Jews to his pupils as "treacherous," "subversive," "sadistic," "money-loving" and "power hungry," and called them "child killers." He taught that Jewish people seek to destroy Christianity and are responsible for anarchy, chaos, wars and revolution. He was charged and convicted for the wilful promotion of hatred under section 319(2) of the Criminal Code.
Like Taylor, Keegstra sought to have his conviction overturned on the grounds that section 319(2) was an impermissible infringement of his right to freedom of expression under section 2 (b) of the Charter. Using reasoning very similar to that in Taylor, albeit in a criminal context, the Supreme Court found that although section 319(2) did impinge on section 2(b), it was a reasonable limitation under section 1:
Section 319(2) of the Code constitutes a reasonable limit upon freedom of expression. Parliament’s objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom. Parliament has recognized the substantial harm that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the wilful promotion of hatred against identifiable groups. Parliament’s objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred. Additionally, the international commitment to eradicate hate propaganda and Canada’s commitment to the values of equality and multiculturalism in ss. 15 and 27 of the Charter strongly buttress the importance of this objective.22
12. Report to the Minister of Justice of the Special Committee on Hate Propaganda in Canada 1966.
13. Smith and Lodge v. Western Guard Party (Taylor J.R.), Canadian Human Rights Tribunal, page 18.
14. This amendment was included in Bill C-36, the Anti-terrorism Act, given Royal Assent on December 18, 2001.
15. Smith and Lodge v. Western Guard Party (Taylor J.R.).
16. Taylor.
17. While all seven judges agreed that it was constitutionally permissible to impose restrictions on free speech in the interests of combating intolerance, three of the seven were of the view that section 13 was too vague to accomplish this goal and, consequently, might inadvertently capture non-objectionable speech in its ambit. They, therefore, would have struck down the law.
18. Taylor.
19. Taylor.
20. Taylor.
21. Keegstra.
22. Keegstra.
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