Online Hate and Canadian Law

Traditional government responses to online hate have been to police cyberspace as an extension of the state’s territory, ignoring the online/offline divide.

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 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 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.

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 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.

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.