Canadian Hate Speech Laws: Finding the Appropriate Limit to Freedom of Speech
By: Jacob Vande Zande
Last year, a court found James Sears and LeRoy St. Germaine, the editor and publisher of a community newspaper, guilty of willful promotion of hatred against identifiable groups – Jews and women.[1] The charges spawned from the newspaper’s racist depiction of Jews, Holocaust denial, and appalling remarks about women and rape.[2] This case has prompted discussion and debate regarding hate speech laws and the tension between laws that limit certain forms of expression and the fundamental right to freedom of speech.[3] Therefore, this article will address this issue by briefly outlining Canada’s hate speech laws and exploring the opposing positions on laws that limit the freedom of speech.
The legislation in Canada that regulates hate speech is, for the most part, comprised of the Canadian Charter of Rights and Freedoms and the Criminal Code of Canada.[4] I will address these sources of law respectively. First, the Canadian Charter of Rights and Freedoms (Charter) provides constitutional protection for speech under Section 2(b): “Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media communication.”[5] However, the Charter does not grant an absolute right to freedom of speech. The fundamental freedoms granted by the Charter, and more specifically the freedom of speech, may be limited by Section 1, which provides that the rights and freedoms established in the Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”[6]
Second, the Criminal Code addresses hate speech in Sections 318, 319, and 320; however, the most important section is 319, so before getting to it, I will briefly go over Sections 318 and 320.[7] Section 318 concerns advocating genocide, which is roughly defined as killing members of a group, or inflicting life conditions to bring the physical destruction of the group, and carries a sentence of up to five years in prison.[8] Section 320 provides judges with the authority to confiscate publications that are considered hate propaganda.[9] Furthermore, Section 319 has two noteworthy subsections, subsection 1 addresses public incitement of hatred and subsection 2 addresses the willful promotion of hatred.[10] First, Section 319(1) prohibits the communication of statements that incite hatred towards an identifiable group that likely will lead to a breach of peace, and carries a maximum prison sentence of two years.[11] Next, Section 319(2) prohibits the communication of statements that “willfully promote hatred against any identifiable group.”[12] In addition, Section 319 defines an identifiable group as “any section of the public distinguished by colour race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability”[13]
Ultimately, subsection 2 is the kind of provision that provokes debate because it does not aim to prevent the incitement of violence or disruption of public order, and thus, is criticized for going too far in limiting the freedom of speech.[14] Consequently, this debate reveals the tension between the right to freedom of speech and the right to be free from hate and discrimination. Furthermore, there are strong arguments for the need for laws regulating hate speech, but there are also strong arguments for why such laws are an unnecessary infringement on the freedom of speech. For example, free speech advocates argue that the best response to hate speech is not through more restrictions on speech, but rather through unrestricted and open debate that allows other ideas to confront it.[15]
However, advocates for hate speech laws argue that while free speech advocates are concerned that hate speech laws will limit freedom of expression, hate speech itself can suppress the right to freedom of speech and undermine the free marketplace of ideas.[16] Consequently, some forms of hate speech aimed at vilifying and dehumanizing members of minority groups, which suppresses their voices, and thus, “[m]embers of the hated group are effectively muzzled and driven from the public arena and fora of debate, and so the marketplace of ideas is entirely deprived of their perspective.”[17] Furthermore, as the Canadian Supreme Court pointed out in Irwin Toy v. Quebec, if the accepted rationales for supporting the necessity of freedom of speech are “(i) for the functioning of a democracy, and thus political speech in particular should be protected; (ii) for the search for truth in a free exchange of ideas; and (iii) for individual self-actualization and flourishing,” then there is no justification for protecting “the kind of narrowly defined hate speech prohibited by Section 319(2)--which was deeply hurtful and damaging to the target group members, misleading to listeners within society, and antithetical to tolerance, understanding, and equality within society.”[18]
Nevertheless, free speech advocates contend that there is no clear line for determining the likelihood of certain types of speech causing such harm, and thus, there is no certainty of where the restrictions will end.[19] Therefore, because hate speech laws are viewpoint based, there is a risk of a trend of government suppression that could lead to the unequal suppression of certain viewpoints and the government forcing individuals to accept its specific viewpoints.[20]
Ultimately, the debate around hate speech laws comes down to the perception and priority of differing fundamental rights. This is evident when comparing Canada and the United States as “the Canadian system reflects the emphasis on equality as a substantive right and the privileging of multiculturalism, while the American system reflects an emphasis on liberty and freedom from government interference over equality and equal protection.”[21] In the end, a country’s approach to combating hate speech reveals its perception of the correct hierarchy of fundamental rights.
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[1] R. v. Sears (2019), 2019 ONCJ 104, 2019 CarswellOnt 2752 (Ont. C.J.)
[2] Colin Perkel, Editor Found Guilty of Peddling Hate Says Your Ward News Gave 'Angry Men' a Voice, national post (April 27, 2019).
[3] R. v. Sears (2019), 2019 ONCJ 104, 2019 CarswellOnt 2752 (Ont. C.J.)
[4] Alexa Battler, The Need for Hate Speech Laws in an Evolving Canada, Blnk Page (May, 2018).
[5] Charter of Rights and Freedoms, Section 2(b).
[6] Id. Section 1.
[7] Criminal Code of Canada, Sections 318-320; Battler, supra note 5.
[8] Criminal Code of Canada, Section 318.
[9] Id. Section 320.
[10] Id. Section 319.
[11] Id. Section 319(1).
[12] Id. Section 319(2).
[13] Id. Section 319(7).
[14] Craig Martin, Striking the Right Balance: Hate Speech Laws in Japan, the United States, and Canada, 45 Hastings Const. L.Q. 455, 501-02 (2018)
[15] Julian Walker, Hate Speech and Freedom of Expression: Legal Boundaries in Canada, Library Of Parliament, Legal And Social Affairs Division, 1 (2018).
[16] Martin, supra note 15, at 504.
[17] Id.
[18] Id. at 505 quoting Irwin Toy v. Quebec, [1989] 1 S.C.R. 927, 970-71 (Can.)
[19] See Id. at 531.
[20] See Id. at 526.
[21] Id. at 511.