Online Hate and Canadian Law

When hatred is determined to have been an inciting factor in a crime, penalties are increased. ^[1] But the appropriateness of applying legislation meant for offline hatred to online hatred is debatable. The number of different laws which might be applied to online hate can lead to conflicting conclusions about the definition of hateful behaviour and freedom of expression; further, considerable debate exists over which types of speech should be subject to these laws at all.

The following section surveys the federal laws that prohibit some forms of hate speech and outlines legislation that is currently being developed to deal with this material.

Criminal Code of Canada

Sections 318 and 319 of the Criminal Code make it a criminal offence to advocate genocide, publicly incite hatred, and willfully promote hatred against an "identifiable group."

An identifiable group is defined as any section of the public distinguished by colour, race, religion, ethnic origin, or sexual orientation.

The Code provisions are intended to prohibit the public distribution of hate propaganda. Private speech is not covered by the provisions: the act of promoting hatred can only be committed by communicating statements other than in a private conversation, and inciting hatred is only prohibited if statements are communicated in a public place. Online communications that advocate genocide or willfully promote or incite hatred are likely to fall within the provisions because the Internet is a public network.

Under section 320(1) of the Code, a judge has the authority to order the removal of hate propaganda from a computer system that is available to the public. Such authority extends to all computer systems located within Canada. To date, however, only one case has been successfully brought under that provision, in the province of Quebec. ^[2]

Canadian Charter of Rights and Freedoms

Section 2 of the Canadian Charter of Rights and Freedoms guarantees freedom of thought, belief, opinion and expression to all Canadians. However, all Charter rights are subject to reasonable limits that can be demonstrably justified in a free and democratic society.

In 1990, the Supreme Court of Canada considered whether or not section 319(2) of the Criminal Code (the crime of willfully promoting hatred) violates our constitutional right to freedom of expression in the Keegstra case. James Keegstra was an Alberta high-school teacher who taught his students, among other anti-Semitic beliefs, that the Holocaust was a myth promoted as part of a Jewish conspiracy. The Court held that, although section 319(2) does limit free speech, it is a reasonable limit within a democratic society and under certain narrowly defined conditions does not violate the Charter.

Canadian Human Rights Act - Section 13

Section 13 of the Canadian Human Rights Act prohibits the communication by means of a telecommunication undertaking (including the Internet) of messages that are likely to expose a person to hatred or contempt on the basis of: race, national/ethnic origin, colour, religion, age, sex, sexual orientation, marital status, disability, or conviction for which a pardon has been granted.

The use of this section to fight online hate has come under attack from a variety of critics from both ends of the political spectrum. Noam Chomsky and Ezra Levant, for example, have both critiqued Article 13 for unfairly restricting freedom of speech, especially in discursive spaces such as the Internet. ^[3] These criticisms came to a head with the 2008 release of a report on the regulation of hate speech on the Internet by Richard Moon, a University of Windsor law professor. This report recommended that Section 13 be repealed due to its infringement upon the Charter and instead suggested that online hate speech should be dealt with in a purely criminal manner. ^[4] To date, however, Parliament has not made any changes to either the Canadian Human Rights Act or the Criminal Code in response to the Moon Report, and Section 13 remains the primary legal means of fighting online hate.

On September 2, 2009, the Canadian Human Rights Tribunal ruled that Section 13 violated the Charter right to free expression by imposing a threat of monetary fines upon hate speech. ^[5] Immediately thereafter, monetary fines were stayed as a penalty for contravening Article 13. Harvey Goldberg of the Canadian Human Rights Commission has stated that while the Tribunal is still accepting complaints related to online hate, fines will no longer be imposed simply for posting hateful material on the Internet. He elaborates: "The [Canadian Human Rights Act's] limit on hate speech was constitutional; just the fines were unconstitutional". ^[6] While monetary fines no longer exist as a consequence for posting hateful content online, there are other ways through which the Tribunal deals with such content: in particular, the Tribunal may order a respondent to cease and desist (stop publication) of offensive content. If the person in question refuses, he or she may be held in contempt of court and could subsequently face monetary fines relating to this misdemeanour charge, but not directly from posting the hateful content itself. ^[7] The decision of the Tribunal will be appealed in Federal Court and could ultimately reach the Supreme Court of Canada; this process can be lengthy however, and its completion could take several years. ^[8]

The Omnibus Bill

During the 2011 federal election campaign, the Conservative Party of Canada promised that an 'Omnibus Bill,' consisting of 11 previously un-passed crime bills, would be implemented within the first 100 sitting days of Parliament. ^[9] Although there are a wide variety of topics covered by the pieces of legislation amassed in this bill, one of these eleven acts deals with online hate specifically. The Investigative Powers for the 21st Century Act (formerly known as Bills C-50, C-51, and C-52) attempts to modernize the language of particular Criminal Code offences in order to equip police with enhanced investigative powers designed for the digital age. ^[10]

Newly created offences proposed under the Investigative Powers for the 21st Century Act include making hate material available online and creating a hyperlink that directs Web surfers to hate sites. This Act also expands the definition of harassment to include forms of digital media such as the Internet and increases the maximum sentence for harassing communications to two years. ^[11]

Broadcasting Act

Regulations under the Broadcasting Act prohibit any licensee from broadcasting or distributing programming that contains abusive comments about individuals or groups – comments that would expose an individual, group, or class of individuals to hatred or contempt on discriminatory grounds.

Although these regulations apply to radio, specialty services, broadcast television and pay television, Internet-based communications do not fit the definition of "broadcasting."

Immigration Act

Under the Immigration Act, customs officials have the authority to stop hate material from entering Canada, and to refuse entry to individual hate-mongers. This only applies to the movement of physical materials across the border, not sending or accessing content online, but hateful content such as CDs or hate literature that is purchased online and shipped to Canada may be confiscated under this legislation.

[1] Guichard, A. (2009). Hate Crime in Cyberspace: the Challenges of Substantive Criminal Law. Information & Communications Technology Law, 18(2), 201-234.
[2] Slane, A. (2007). Combating Hate on the Internet: Current Canadian Efforts and the Recommendations of Non-Governmental Organizations to Improve upon Them. Ottawa: Department of Justice Canada.
[3] Levant, E. (2008, December 9). Noam Chomsky: Canada's section 13 "outrageous", "pure hypocrisy", - Ezra Levant . Ezra Levant . Retrieved August 9, 2011, from http://ezralevant.com/2008/12/noam-chomsky-canadas-section-1.html
[4] Moon, Richard. Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet. Canadian Human Rights Commission.
[5] Brean, J. (2009). Hate speech law unconstitutional: rights tribunal. National Post . Retrieved July 25, 2011, from http://www.nationalpost.com/news/story.html?id=1954734
[6] Goldberg, H. (2011). Personal interview.
[7] Ibid.
[8] Goldberg (2011); Brean (2009).
[9] Gibb, D. (2011). Harper Government Omnibus Crime Bill: Canadian Justice Gets A Major Makeover. Huffington Post Canada. Retrieved July 25, 2011, from http://www.huffingtonpost.ca/2011/06/03/harper-government-omnibus_n_870368.html
[10] Ibid.
[11] Nicholson, R. (2011). Legislative Summary of Bill C-51: Investigative Powers for the 21st Century Act. Parliament of Canada Website . Retrieved July 25, 2011, from http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/