As political division and conversations around freedom of speech continue to pique public interest, questions of what Canada’s hate speech laws should mean and include are increasingly asked.
What laws regulate hate speech in Canada?
Laws regulating hate speech in Canada exist in the Canadian Charter of Rights and Freedoms, the Criminal Code of Canada, the Canadian Human Rights Act and provincial and federal legislation.
Speech is protected in the Canadian Charter of Rights and Freedoms (or “the Charter”), in which s.2(b) protects freedom of “thought, belief, opinion and expression, including freedom of the press.” However, all Charter rights, including those pertaining to speech, are subject to s.1, in which rights may be restricted or refused when such limitation “can be demonstrably justified in a free and democratic society.”
Provisions around hate speech exist in sections 318, 319 and 320 of the Canadian Criminal Code. Under s.318, advocating genocide, in public or private, is punishable by up to five years in prison. Genocide means action to eliminate a part or entire identifiable group, through killing members or “inflicting … conditions of life” to physically destroy the group.
Identifiable groups are those that are publically distinguishable by “colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.”
Under s. 3.19(1), public incitement of hatred is punishable by up to two years in prison or a summary conviction. Public incitement includes any audible or visible communication in a publically accessible place, where an observable statement incites hatred against an identifiable group and the statement is “likely to lead to a breach of the peace.”
The same charges are enforced under s.319(2), which include communicating statements of hatred anywhere “other than in private conversation.” There are four defenses for charges in s.319(3). There may be no charge under s.319(2) if the accused: believed the statement was true; expressed a belief or opinion of a religion in “good faith;” attempted to spur public dialogue, or attempted to highlight hate speech against an identifiable group in order to remove it. Under s.320, a judge may confiscate publications deemed hate propaganda.
Individuals may be charged under s.3 of the Canadian Human Rights Act, which bans discrimination based on “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and pardoned conviction,” or s.12 which bans discriminatory publication. These may be subject to a summary conviction and a fine not exceeding $50,000 under s.60(2).
All provinces have human rights laws and provincial organizations, called Commissions, that work in tandem with Tribunals to resolve human rights infringements (with the exception of British Columbia, which operates only with a tribunal). Charges and areas of protection vary by province.
But are they constitutional?
The question here should not be whether Canada’s anti-hate laws are effective or correct by some objective standard. It should be whether they are constitutional. Canada has one of the oldest constitutions in the world and has in its 150-year history shown great devotion to the ideas within and behind it. Constitutionality has also been a cornerstone of public debate in the need to withhold the regulation of speech in Canada.
When determining if laws are constitutional under s.2(b) it is necessary to examine whether they are justifiably limited under s.1, these provisions cannot be comprehensively read without one another. Since the 1929 decision of Edwards v. Canada, it is established that the Charter “planted in Canada a living tree capable of growth and expansion within its natural limits.”
In this concept, Canada is committed to an evolving constitution that changes with time with the express purpose of balancing “two seemingly contradictory, but ultimately complementary, goals: predictability and flexibility.”
In examining the demographic composition and social trends of Canada, the balance of predictability and flexibility, the constitutionality, and the justification for Canada’s criminal hate speech laws in the year 2018 are extremely clear.
Under s.1 of the Charter, limitations on hate speech are constitutionally justified in Canada’s evolving “free and democratic society.”
Why we must limit speech in Canada
Canada’s criminal hate speech laws honour the pursuit of predictability that underlies the evolving concept of the Charter, and constitutionality, as, despite the living tree concept, “it bears repeating what many are prone to forget – that the Charter was planted.”
Rights established in s.15(1) specifically reference equality ensured “in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” It is also stated in s.27 that the Charter “shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”
The Government of Canada has committed to the idea that “freedom of expression in Canada is not absolute; rather, it can be limited to promote other values that are considered to be of greater social importance.”
In the constitutional pursuit of flexibility lies the Oakes test, a framework developed in R. v. Oakes and used by the Supreme Court to determine when limiting a right or freedom under s.1 is justified. To do this, the Court must “weigh collective interests or the competing rights of other individuals against the right of the claimant.”
It is under this test that the current demographics and trends of Canada constitute significant collective and competing interests that demand flexibility of the reading of s2(b), that is, in maintaining the importance of limiting s.2(b) rights through criminal punishment of hate speech.
The current trends around hate crimes
Hate crimes in Canada, and the percentage of hate crimes that were violent, have risen each year from 2013 to 2016 – during which time charges under s.318 and s.319 also rose 33 per cent. Hate crimes overall rose three per cent, and violent hate crimes rose 16 per cent from 2015 to 2016.
As well, hate crimes are growingly directed towards minority groups that are estimated to increase in Canada. In 2016, 48 per cent of all reported hate crimes were driven by race or ethnicity, and 47 per cent of these crimes were violent. Visible minorities made up 22.3 per cent of Canada’s population in 2016 – of these people, three in 10 were born in Canada. Statistics Canada projected that up to about 40 per cent of Canadians will be part of a visible minority by 2036.
Of hate crimes in 2016, 15 per cent were committed against black people, while immigrants from Africa are projected to rise to 12 per cent of the population by 2036. One-third of all hate crimes in 2016 targeted religion, with 10 per cent targeting Muslims, while those practicing non-Christian religions are projected to double to 16 per cent of the population by 2036.
The overlapping demographic nature of immigrants to Canada may add increased risk of perpetrated hate crimes. One in five immigrants to Canada identified as religious in a 2013 survey, versus one in 10 non-immigrants.
This Statistics Canada survey also found immigrants were overall less likely to take part in civic engagement, participate in a group or organization and be part of a union, and stated “the higher the number of citizens who participate and the more varied their backgrounds, the greater the likelihood that the principle of equality— essential in a democracy —will be respected.”
Of note is also the crucial role immigration plays in Canada, as two-thirds of population growth was due to immigration in 2017, which was largely attributed to low fertility rates.
For these reasons, s.318 and s.319 of the Criminal Code, which ban advocating genocide and public incitement of hatred, constitute the need for speech to be “limited to promote other values that are considered to be of greater social importance” in Canada’s current climate of rising hate crimes, hate speech and its projected demographic context.
In 1963, Thomas Emerson stated free expression is needed in a society to: pursue self-fulfillment; find truth; attain social and political participation from all members of society, and to find balance between social stability and evolution.
It is in the influence of hate crimes, through which “a person’s sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs,” that Emerson’s first cause for freedom of speech is actively diminished for immigrant populations.
Similarly, the tendency of immigrants to withhold from social engagement, and the results of hate speech and propaganda, which, as recognized in the ruling of R. v. Keegstra, include “avoiding activities which bring [minority members] into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority,” create barriers for immigrants to attain Emerson’s third cause for freedom of speech.
Fake news and hate speech
The concept of fake news is another trend that adds to the justification of criminal hate speech laws under s.1, and the need for limited speech to protect “values that are considered to be of greater social importance.”
Fake news is a form of media falsely presented as reputable news that is often “conceived, written, published and disseminated for the purpose of swaying public opinion, in many cases towards the far political right.”
Though propaganda, fake news and hate speech are distinct categorically, propaganda is increasingly presented as fake news, and a recent study found significant overlap in stories classified as fake news and extremist political content that could be classified as hate speech.
Hate propaganda is specifically banned in s.318 to s.320, due to a 1965 study spurred by widespread anti-black and anti-Jewish hate propaganda, along with American neo-Nazi groups arising in Canada. This activity led the Minister of Justice to develop the Cohen Committee, whose report recommendations led to Parliament’s development of s. 318 to 320.
The Cohen report specifically referenced hate propaganda, and the public’s susceptibility to it, as need for criminal regulation of hate speech. The committee stated that the “success of modern advertising, [and] the triumphs of impudent propaganda such as Hitler’s” removed their belief in citizens’ rational abilities to remain unswayed by hate propaganda.
To the Cohen Committee, individuals could be persuaded to believe “almost anything” when circumstances and method supported a message. In R. v. Keegstra, one of Canada’s most famous hate speech cases, the Alberta Court of Appeal initially cleared Keegstra, charged under s.319(2) for communicating anti-semitic messages to students.
Justice Kerans of the Court of Appeal for Alberta referenced the Cohen Committee’s view that “a significant minority of Canadians are susceptible” to hate propaganda. Yet, Justice Kerans cleared Keegstra and found “it does not follow that every attempt to promote hatred will catch the ear of these people.” It was Justice Kerans view that, though Keegstra promoted hate propaganda, it was not a real risk to Canadians.
This is more difficult to state in 2018 in the digital age and era of fake news. According to a recent study, as of May 2017, 65 per cent of Canadians falsely believed a news story was real until they discovered otherwise.
Briefing notes prepared for Canadian Heritage Minister Melanie Joly obtained in February of 2018 by the Canadian Press found that notes for Minister Joly stated “fake news could threaten Canada’s democratic institutions at a time when traditional news outlets are facing cutbacks and financial challenges,” more importantly the notes added “there’s not much [the government of Canada] can do to stop it.”
A recent CBC Marketplace investigation found a 600 per cent increase from 2016 to 2017 in online use of “intolerant racist language” coming from Canada. To the Cohen Committee, and Parliament, advertising in the 1960s was enough of a concern to warrant speech regulation, yet it is incomparable in the unprecedented “sophistication with which fake news is being produced; the scale on which it is being produced, and the speed and effectiveness with which it is being disseminated.”
In considering these trends, the Oakes test is applicable. It is notable that the Supreme Court has well established that in cases that “protect vulnerable groups,” the Oakes test is viewed through a lens of “more lax scrutiny.” The first step asks if the law being reviewed is “of sufficient importance” to justify limiting a Charter right.
Considering the projected growth of foreign-born and visible minority populations in Canada, the increase of hate speech, other hate crimes and, in particular, violent hate crimes directed at these growing minorities and the role of immigration in Canada, which constitute the bulk of the nation’s growth rate, pressing and substantial concern around hate speech laws are met.
These considerations are also those that meet the second step of the Oakes test – that there is a rational connection between limiting a right and obtaining an objective. Trends of fake news, hate speech and propaganda, and the parallels they draw with the risks of unregulated free speech and hate speech that concerned the Cohen Committee around 40 years prior, compile to create clear rational connection between regulating speech and protecting Canada’s commitment to equality and a multicultural nation.
The inevitable comparison to America
In the third step of the Oakes test, the government must show that if there is “evidence of a less restrictive alternative,” there must be reasons why this alternative should not be chosen.” The most effective example comes from America, where hate speech is not regulated.
However, it is in American that the current concept of fake news originated and that extremist and white supremacist activities have been steadily rising since 2015, and where a 2017 survey after the Charlottesville white nationalist rally found nine per cent of Americans believe it is “fine” to hold white supremacist or neo-Nazi views.
It is clear why the alternative (no regulation on hate speech) is not viable in the current political climate for a nation attempting to continuously foster the value of multiculturalism within which the constitution must be read. The final step of the Oakes test requires a balance – that the “significance of the infringement of the right against the importance of obtaining the objective of the legislation.”
It is for all of the reasons stated in the previous three steps that the imperative nature of protecting minority groups that are subject to hate speech and hate propaganda will constitutionally outweigh the need for s.2(b) under s.1.
By Alexa Battler
Please note that opinions expressed are the author’s own. They do not necessarily reflect the views and values of The Blank Page
