Online Hate and Canadian Law

When hatred is determined to have been an inciting factor in a crime, penalties are increased. 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 Canadian 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, national or ethnic origin, age, sex, sexual orientation or mental or physical disability.

The Code provisions are intended to prohibit the public distribution of hate propaganda. Private speech isn’t 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.

Canadian Charter of Rights and Freedoms

Section two 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 antisemitic 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.

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 that is purchased online and shipped to Canada may be confiscated under this legislation.

Anti-Terrorism Act

The Anti-Terrorism Act makes “advocating or promoting commission of terrorism offences” a criminal offence and allows judges to seize anything that they have determined is terrorist propaganda, take it offline and delete it. Those accused of posting terrorist propaganda may appear before the judge to oppose the order. The precise distinctions between hate content and terrorist propaganda are not defined in the Anti-Terrorism Act and have not yet been determined by the courts.

Provincial Human Rights Laws

While the Canadian Human Rights Act no longer addresses hate messages at the federal level, there are some provincial and territorial human rights laws that deal with it. All of these laws require a person or group who believes themselves to have been injured by hate speech or communications to make a complaint, and all give their respective human rights commissions or tribunals the power to award civil damages, including injunctions against displaying or publishing the messages and monetary awards.

Alberta Human Rights Act

This law forbids publishing, issuing or displaying anything that “indicates discrimination or an intention to discriminate against a person or a class of persons” or “is likely to expose a person or a class of persons to hatred or contempt because of the race, religious beliefs, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons.” However, the act should not “interfere with the free expression of any opinion on any subject.”

British Columbia Human Rights Code

The BC Human Rights Code states that “a person must not publish , issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that (a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, or (b) is likely to expose a person or a group or class of persons to hatred or contempt because of the Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or that group or class of persons.”

Northwest Territories Human Rights Act

Under the Human Rights Act, “no person shall, on the basis of a prohibited ground of discrimination, publish or display or cause or permit to be published or displayed any statement, notice, sign, symbol, emblem or other representation that (a) expresses or implies discrimination or any intention to discriminate against any individual or class of individuals; (b) incites or is calculated to incite others to discriminate against any individual or class of individuals; or (c) is likely to expose any individual or class of individuals to hatred or contempt.” As with the Alberta act, this should not “be construed as to interfere with the free expression of opinion on any subject.”

Saskatchewan Human Rights Code

The Code states that “No person shall publish or display, or cause or permit to be published or displayed, before the public any statement, publication, notice, sign, symbol, emblem or other representation: (a) tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is entitled under the law; or (b) that exposes or tends to expose to hatred any person or class of persons on the basis of a prohibited ground.” This law also states that it does not restrict “the right to freedom of expression under the law on any subject.”