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What is a 'hate crime'?

A hate crime is criminal offence where someone intimidates, harms, or terrorizes a person or people based on their colour, race, religion, ethnic origin, or sexual orientation.

It can include threats, harassment, and physical force and also any attempt to incite hatred.

Statistics Canada reports there were 1,409 police-reported hate crimes across Canada in 2016, the most recent numbers available. However, statistics are questionable because Canadian police don’t use a standard definition of what a “hate crime” is.

The Criminal Code has two specific sections devoted to hate crimes.

Sections 318 and 319 of the Criminal Code outlaw the promotion of genocide of promotion of hatred that may lead to violence or a breach of peace

Both sections are designed to prevent the spread of hate propaganda in any public forum and aren’t concerned with private opinions. The law specifically bans “communicating” such statements, which includes communication by telephone, broadcast, or other audible or visual means. The law doesn’t specifically mention online hate speech, but it could still fall under this definition.

Section 319 specifically bans the willful promotion of hatred “other than in private conversation.”

Section 430 of the code outlaws mischief committed against any places of worship, such as a church, mosque, or synagogue if it is “motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin.”

When it comes to sentencing, the Criminal Code also instructs courts to consider whether any crime was motivated by bias, prejudice, or hate against an identifiable group.

Hate speech can sometimes conflict with free speech and Canadian courts have had to walk a fine line when considering the constitutionality of ss. 318 and 319. The Criminal Code makes some provisions to protect hateful speech.

A person charged with communicating hate speech can defend themselves on grounds that:

  • Their statements can be shown to be true.
  • It is an opinion based on religious belief.
  • The statements were of public interest and were believed to be true based on reasonable grounds.
  • Their statements were a good-faith effort to address hate or prejudice as a means to remove it.

Regardless, Canada’s hate speech laws have sometimes collided with the Charter right to freedom of expression, triggering court cases over their constitutionality.

In 1990, the Supreme Court of Canada made the landmark statement that hate propaganda is actually a protected form of expression under the Charter of Rights and Freedoms.

In R. v. Keegstra, the court heard the case of Alberta teacher James Keegstra who openly taught the Holocaust was a myth and Jews are “treacherous,” “money-hungry,” “child-killers” who seek to destroy Christianity.

In its ruling, the top court stated s. 319 violated Keegstra’s right to freedom of expression.

More importantly though, Keegstra still lost the case. While the court agreed the law does limit freedom of expression, it still does so in a reasonable way because the “objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom.” Because of the negative message, his right to free speech was deemed less valuable than the law that restricted it.

Read more:

The Canadian Criminal Code’s section on hate propaganda

R. v. Keestra