Hate speech laws in Canada

Hate speech laws in Canada include provisions in the Criminal Code of Canada, provisions in the Human Rights Act and in other federal legislation, and statutory provisions in each of Canada's ten provinces and three territories. The Criminal Code prohibits "hate propaganda." The Canadian Human Rights Act prohibits discrimination on various grounds. Legislation in the provinces and territories prohibits discrimination on the same grounds as Canada's Human Rights Act in matters of provincial or territorial concern such as employment and accommodation.

The constitution

The Constitution of Canada incorporates the Canadian Charter of Rights and Freedoms. Section 2 of the Charter grants to everyone, among other things, freedom of conscience and religion, and freedom of thought, belief, opinion and expression, including freedom of the press and other media. Section 1 restricts the granted freedoms by making them subject "only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

The Criminal Code of Canada

Sections 318, 319, and 320 of the Code forbid hate propaganda. "Hate propaganda" means "any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offence under section 319."

Section 318 prescribes imprisonment for a term not exceeding five years for anyone who advocates genocide. The Code defines genocide as the destruction of an "identifiable group." The Code defines an "identifiable group" as "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation."

Section 319 prescribes penalties from a fine to imprisonment for a term not exceeding two years for anyone who incites hatred against any identifiable group.

Under section 319, an accused is not guilty: (a) if he establishes that the statements communicated were true; (b) if, in good faith, the person 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 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 toward an identifiable group in Canada.

Section 320 allows a judge to confiscate publications which appear to be hate propaganda.

Cases under the Criminal Code

In 2003, in Saskatchewan, the Crown charged David Ahenakew with wilfully inciting hatred because of the remarks he made about Jews to a reporter. In 2005, the Provincial Court convicted Ahenakew, and fined him $1,000. In 2008, the Attorney General for Saskatchewan decided to retry the matter after the conviction was overturned on appeal. On 23 February 2009, Judge Wilfred Tucker of the Saskatchewan Provincial Court said Ahenakew's remarks were "revolting, disgusting, and untrue," but they did not constitute "promoting hatred."

In Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at 902, the Supreme Court said hate propaganda denotes any expression that is "intended or likely to circulate extreme feelings of opprobrium and enmity against a racial or religious group". The Supreme Court of Canada, by a bare 4-3 plurality, upheld the constitutionality of section 319 in R. v. Keegstra [1990] 3 S.C.R. 697.

Canadian Human Rights Commission

The Canadian Human Rights Commission administers the Canadian Human Rights Act. Section 3 of the Act prohibits discrimination based on "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." Section 13 of the Human Rights Act was repealed on the 26th of June 2013. Section 54 was rendered useless with the action, now referring to Section 53.

Cases under the Human Rights Act

In Warman v. Lemire, 2009 CHRT 26, Athanasios D. Hadjis held that the respondent's right to freedom of thought, belief, opinion and expression should not be infringed by s. 13(1). Accordingly, the adjudicator did not penalize the respondent for his controversial postings to the Internet.

In Warman v. Northern Alliance, 2009 CHRT 10, Edward Peter Lustig held that the respondent's website was in violation of s. 13(1) because the website carried controversial remarks about Roma, Jews, Muslims, homosexuals, blacks, Arabs, and others. The adjudicator made an order pursuant to s. 54(1)(a) to ensure that the impugned website, which is defunct, remained inactive.

In Chopra v. Health Canada, 2008 CHRT 39, Pierre Deschamps ruled that Shiv Chopra, a microbiologist at Health Canada, was entitled to $4,000 in damages from Health Canada for hurt feelings, lost wages, and interest. The adjudicator found that Chopra was subjected to discriminatory comments, was suspended in retaliation for filing an earlier human rights complaint, and had been passed over when he could have had a temporary promotion to acting chief of his division.

In December 2007, the Canadian Islamic Congress filed a complaint about hate speech against Maclean's Magazine. The substance of the complaint was that Maclean's was publishing articles (a column by Mark Steyn) that insulted Muslims. The Congress filed its complaint with the Canadian Human Rights Commission, the British Columbia Human Rights Tribunal and the Ontario Human Rights Commission. The Ontario Human Rights Commission ruled that it did not have the jurisdiction to hear the complaint. The British Columbia Human Rights Tribunal dismissed the complaint 10 October 2008. The Canadian Human Rights Commission dismissed the complaint on 26 June 2008.

In Warman v. Winnicki, 2006 CHRT 20, Karen A. Jensen found the respondent had posted messages to the Internet which were "vicious and dehumanizing". The adjudicator ordered the respondent to cease and desist his discriminatory practices and to pay a penalty of $6,000.

In Citron v. Zündel TD 1/02 (2002/01/18) the Tribunal found that the respondent had theories of secret conspiracies by Jews. The respondent posted his theories to the Internet. The Tribunal found that the tone and extreme denigration and vilification of Jews by the respondent was a violation of s. 13(1). The Tribunal ordered the respondent to cease and desist his discriminatory practices.

Provinces and Territories

The provinces and territories all have human rights legislation and human rights commissions, except for British Columbia, which has a tribunal but no longer has a commission. As a rule, the legislation forbids discrimination—in the absence of a lawful reason—on the basis of race, colour, ancestry, place of origin, religion, creed, political opinion, marital status, family status, physical or mental disability, sex, sexual orientation, age, and conviction for which a pardon has been granted (hereinafter referenced as "common grounds"). As a rule, the legislation forbids discrimination in at least five contexts: accommodation, employment, the purchase of property, membership in unions and associations, and publications. The context of publications is where the issue of hate speech arises. The provincial and territorial human rights acts usually have provisions similar to these provisions (Section 12 of Prince Edward Island's Human Rights Act):

(1) No person shall publish, display or broadcast, or permit to be published, displayed or broadcast on lands or premises, or in a newspaper or through a radio or television broadcasting station or by means of any other medium, any notice, sign, symbol, implement or other representation indicating discrimination or an intention to discriminate against any person or class of persons.

(2) Nothing in this section shall be deemed to interfere with the free expression of opinion upon any subject in speech or in writing.

A person who believes that his rights under a provincial or territorial human rights act have been violated may seek redress through a Human Rights Commission. As a rule, the commission receives a complaint and, if it appears to be within the commission's jurisdiction, the commission investigates the matter. The commission may try to bring the complainant and the respondent to a settlement, or it may turn the issue over to an adjudicator. In practice, many complaints are successfully resolved through mediation.

Differences between the provinces and territories appear in the authority granted to an adjudicator and in the amounts prescribed for compensation and penalties. All adjudicators have the authority to order a respondent to cease any contravention of the human rights legislation, and not to engage in any contravention from the date of the order. All adjudicators have the authority to order that the respondent compensate the complainant for any loss occasioned by the respondent's contravention. Some adjudicators have the authority to order that the respondent pay "emotional damages" to the complainant, or pay a penalty for wilful or reckless misconduct.

Nunavut

Nunavut's Human Rights Act 2003 allows its adjudicator to order inter alia compensation "for injury to dignity, feelings or self-respect" and "for any malice or recklessness", and to order an apology.

Northwest Territories

The Northwest Territories' Human Rights Act prohibits discrimination on the common grounds and on "social condition". The section regarding publication (s.13) explicitly forbids any means of expression that "is likely to expose any individual or class of individuals to hatred or contempt". The adjudicator may order inter alia a respondent "to pay to a complainant an amount that the adjudicator considers appropriate to compensate that complainant for injury to dignity, feelings and self respect". If the adjudicator finds that the respondent "acted wilfully or maliciously", or that the respondent repeatedly contravened the Act, the adjudicator may order the respondent to pay an amount not exceeding $10,000 as exemplary or punitive damages".

Yukon

The Yukon Human Rights Act prohibits treating any individual or group unfavourably on account of the common grounds and "source of income". The Act does not have any specific provision that forbids discriminatory publications, displays, or broadcasts.

British Columbia

British Columbia is unique in no longer having a human rights commission. Complaints can be filed directly with the province's human rights tribunal. Under British Columbia's Human Rights Code, an adjudicator must order a violator to cease contravening the Code, and may order inter alia that the violator pay to the complainant an amount that the adjudicator considers appropriate "for injury to dignity, feelings and self respect or to any of them".

In Khanna v. Common Ground Publishing Corp., 2005 BCHRT 398, Tonie Beharrell considered a complaint about an image on the cover of a magazine. The image was a representation of the Hindu god Shiva in the form of Nataraja. The representation had a circle of fire with modern artifacts, e.g., a hamburger. The adjudicator found no merit in the claim that the image would make it "acceptable for others to express hatred and contempt for Hindus".

Alberta

Alberta's Human Rights Act forbids discrimination upon the common grounds except for political opinion, but also on account of "source of income". The Act forbids a publication or display that "is likely to expose a person or a class of persons to hatred or contempt". An adjudicator has no authority to order that a respondent pay to the complainant "emotional damages" or pay a penalty. The authority responsible for the Act is the Alberta Human Rights and Citizenship Commission (AHRCC).

In 2006, the Muslim Council of Edmonton and the Supreme Islamic Council of Canada complained to the AHRCC when Ezra Levant published cartoons that were featured first in Denmark in the magazine Jyllands-Posten. The Commission dismissed the complaint on 5 August 2008. The two-year tribunal process cost Levant around $100,000 in legal costs.

In June 2002, Reverend Stephen Boissoin sent to the Red Deer Advocate a letter to the editor. The Advocate published the letter, which said it was aimed at anyone who "supports the homosexual machine that has been mercilessly gaining ground in our society since the 1960s". Dr. Darren Lund complained about Boissoin's remarks to the AHRCC. In the end, the Alberta Court of Queen's Bench dismissed the complaint. See Lund v. Boissoin.

On 2 April 2002, the Edmonton Journal and the Calgary Herald published an editorial which reported that a meeting of the Organisation of the Islamic Conference was taking place in Malaysia on the subject of terrorism. The editorial said the meeting would "no doubt be a farce". The editorial went on to disparage the behaviour of Muslims, especially the Palestinians. Muslim and Palestinian organizations and their supporters complained about the editorial to the AHRCC. The complainants said the editorial was likely to incite hatred and contempt toward Palestinian Arabs and Muslims. On 21 September 2009, commission director Marie Riddle dismissed the complaints.

Saskatchewan

Saskatchewan had the first legislation in North America (1947) to prohibit victimisation on account of race, religion, colour, sex, nationality, ancestry, and place of origin. The Saskatchewan Human Rights Code prohibits discrimination upon the common grounds and on account of "receipt of public assistance". The Code forbids any publication or display "that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons". The Supreme Court of Canada found "ridicule, belittlement and affront to dignity" unconstitutional and removed it from the Code in Saskatchewan Human Rights Commission v. Whatcott, 2013 SCC 11 (see the Conclusion, paragraph 206). An adjudicator may award inter alia to the complainant compensation up to $10,000 either for the respondent's misconduct if it was wilful and reckless or for injury to "feeling, dignity or self-respect".

In June 1997, the Saskatchewan Human Rights Tribunal held that Hugh Owens had breached the Human Rights Code by placing in a newspaper an advertisement that gave citations for passages in the Bible. The passages condemn homosexual behaviour. Owens appealed. The Court of Queen's Bench agreed with the Tribunal. Owens appealed. In 2006, the Court of Appeal reversed the Tribunal's decision.

In 2005, the Saskatchewan Human Rights Tribunal fined Bill Whatcott, leader of a small group called the Christian Truth Activists, $17,500 because he distributed flyers that had controversial comments about homosexuals. The matter ultimately went to the Supreme Court of Canada where the decision was upheld in part.

Manitoba

Manitoba's The Human Rights Code allows an adjudicator to order inter alia that a respondent pay damages for injury to dignity, feelings or self-respect in an amount that the adjudicator considers "just and appropriate", and to pay a penalty or exemplary damages (up to $2000 in the case of an individual respondent; up to $10,000 in any other case) if malice or recklessness is involved. Manitoba's Code is unique in having an "analogous grounds" provision. Complaints can be based not only on the listed grounds (such as sex, age, national origin, etc.), but also on grounds analogous to the listed ones. For example, the Manitoba Human Rights Commission currently accepts complaints based on gender identity.

Ontario

The Ontario Human Rights Code forbids discrimination upon various grounds which depend upon the circumstances. An adjudicator may order inter alia a respondent: to pay monetary compensation to the complainant "including compensation for injury to dignity, feelings and self-respect"; to make restitution to the complainant "including restitution for injury to dignity, feelings and self-respect"; and to do anything that will rectify the respondent's violation of the Code.

Quebec

Section 10 of the Quebec Charter of Human Rights and Freedoms prohibits discrimination based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law. Section 80 provides:

Where the parties will not agree to negotiation of a settlement or to arbitration of the dispute or where the proposal of the commission has not been implemented to its satisfaction within the allotted time, the commission may apply to a tribunal to obtain, where consistent with the public interest, any appropriate measure against the person at fault or to demand, in favour of the victim, any measure of redress it considers appropriate at that time.

Prince Edward Island

Prince Edward Island's Human Rights Act has no provision for a payment of "emotional damages" to the complainant. The adjudicator may inter alia impose a fine on an individual of not less than $100 and not exceeding $500, and on any other entity of not less than $200 and not exceeding $2,000.

New Brunswick

New Brunswick's Human Rights Act forbids discrimination upon various grounds which depend upon the circumstances. An adjudicator (Board of Inquiry) may order a respondent "inter alia" to compensate a complainant "for any consequent emotional suffering, including that resulting from injury to dignity, feelings or self-respect, in such amount as the Board considers just and appropriate".

Nova Scotia

Nova Scotia's Human Rights Act prohibits discrimination upon the common grounds and upon "an irrational fear of contracting an illness or disease". An adjudicator "may order any party who has contravened this Act to do any act or thing that constitutes full compliance with the Act and to rectify any injury caused to any person or class of persons or to make compensation therefor and, where authorized by and to the extent permitted by the regulations, may make any order against that party, unless that party is the complainant, as to costs as it considers appropriate in the circumstances".

In April 2008, a group in Nova Scotia, the Centre for Islamic Development, filed a complaint with the police and with the Human Rights Commission of Nova Scotia over a cartoon published in the Halifax Chronicle-Herald.

Newfoundland and Labrador

The Human Rights Code of Newfoundland and Labrador has no provision for "emotional damages".

See also

• Canadian Human Rights Commission free speech controversies
• Blasphemous libel