Hate Speech aka Hate Propaganda
Federal Criminal Law
The Canadian Criminal Code creates the following offences:
- Section 319(1): communicating statements in any public place, which incite hatred against any identifiable group, where such incitement is likely to lead to a breach of the peace.
- Section 319(2): communicating statements, other than in a private conversation, willfully promoting hatred against any identifiable group.
- Section 319(2.1): communicating statements, other than in a private conversation, willfully promoting antisemitism by condoning, denying or downplaying the Holocaust.
- Section 318(1): advocating or promoting genocide (genocide meaning killing members of a group, or deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, with intent to destroy in whole or in part any identifiable group).
An “identifiable group” is defined by the Criminal Code as 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.
The meaning of the word “hatred” was considered by the Supreme Court of Canada in Canada (Human Rights Commission) v Taylor, 1990 CanLII 26 (SCC), where Chief Justice Dickson stated that a “reference to ‘hatred’ speaks of ‘extreme’ ill-will and an emotion which allows for ‘no redeeming qualities’ in the person at whom it is directed.”
Section 319(2) has been held to constitute a reasonable limit on the guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms and is therefore constitutionally valid. R. v Keegstra, 1990 CanLII 24 (SCC).
In Keegstra, the Supreme Court of Canada held 4-3 that hate propaganda is of pressing and substantial concern as is its influence upon society at large, referring with approval to the unanimous 1965 “Report of the Special Committee on Hate Propaganda in Canada” (The Special Committee, usually referred to as the “Cohen Committee”, included then Associate Law Professor Pierre Elliott Trudeau, who became Prime Minister of Canada in 1968).
Chief Justice Dickson, who wrote the judgment of the majority in Keegstra, stated:
A second harmful effect of hate propaganda which is of pressing and substantial concern is its influence upon society at large. The Cohen Committee noted that individuals can be persuaded to believe “almost anything” (p. 30) if information or ideas are communicated using the right technique and in the proper circumstances (at p. 8):
… we are less confident in the 20th century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them. In the 18th and 19th centuries, there was a widespread belief that man was a rational creature, and that if his mind was trained and liberated from superstition by education, he would always distinguish truth from falsehood, good from evil. So Milton, who said “let truth and falsehood grapple: who ever knew truth put to the worse in a free and open encounter”.
We cannot share this faith today in such a simple form. While holding that over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstrations of truth put before them and forsake the good they know. The successes of modern advertising, the triumphs of impudent propaganda such as Hitler’s, have qualified sharply our belief in the rationality of man. We know that under strain and pressure in times of irritation and frustration, the individual is swayed and even swept away by hysterical, emotional appeals. We act irresponsibly if we ignore the way in which emotion can drive reason from the field.
It is thus not inconceivable that the active dissemination of hate propaganda can attract individuals to its cause, and in the process create serious discord between various cultural groups in society. Moreover, the alteration of views held by the recipients of hate propaganda may occur subtlely, and is not always attendant upon conscious acceptance of the communicated ideas. Even if the message of hate propaganda is outwardly rejected, there is evidence that its premise of racial or religious inferiority may persist in a recipient’s mind as an idea that holds some truth, an incipient effect not to be entirely discounted …
The threat to the self-dignity of target group members is thus matched by the possibility that prejudiced messages will gain some credence, with the attendant result of discrimination, and perhaps even violence, against minority groups in Canadian society. With these dangers in mind, the Cohen Committee made clear in its conclusions that the presence of hate propaganda existed as a baleful and pernicious element, and hence a serious problem, in Canada (at p. 59):
The amount of hate propaganda presently being disseminated and its measurable effects probably are not sufficient to justify a description of the problem as one of crisis or near crisis proportions. Nevertheless the problem is a serious one. We believe that, given a certain set of socio-economic circumstances, such as a deepening of the emotional tensions or the setting in of a severe business recession, public susceptibility might well increase significantly. Moreover, the potential psychological and social damage of hate propaganda, both to a desensitized majority and to sensitive minority target groups, is incalculable. As Mr. Justice Jackson of the United States Supreme Court wrote in Beauharnais v. Illinois, such “sinister abuses of our freedom of expression . . . can tear apart a society, brutalize its dominant elements, and persecute even to extermination, its minorities”. [bolding for emphasis added]
The Criminal Code specifically provides the no person shall be convicted of an offence under section 319(1), section 319(2) or section 319(2.1):
(a) if they establish that the statements communicated were true;
(b) if, in good faith, they expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(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 they believed them to be true; or
(d) if, in good faith, they intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada (feelings of antisemitism toward Jews).
Although the defence of “truth” violates the presumption of innocence in section 11(d) of the Canadian Charter of Rights and Freedoms in so far as an onus is placed on the accused to establish that the statements are true, that violation is justified under section 1 of the Charter. R v Andrews, 1990 CanLII 25 (SCC).