Introduction

Canadian Jewish Congress believes that both the criminal and human rights law in Canada require provisions to deal with matters relating to hate speech. We believe that both criminal and civil tracks are necessary to indicate society’s abhorrence for hateful speech and the consequences of such speech.

Canada’s criminal and human rights codes provide protection against expressions of hatred and contempt directed against individuals or communities that are distinct because of colour, race, religion, ethnic origin or sexual orientation. Such protections are found in virtually every democracy, with the exception of the United States of America, where the principle of free speech is interpreted in a very broad and expansive fashion. That said, even in the United States, there are statements which are deemed to be unworthy of constitutional protection. Freedom of speech is not an absolute right in any jurisdiction. It is the responsibility of lawmakers and the judiciary to determine where the line between the permissible and the impermissible will be drawn.

 Legislation

The Criminal Code of Canada contains three sections pertaining to hate speech:

• Section 318 makes it an offence to advocate or promote genocide against an identifiable group;

• Section 319(1) makes it an offense to communicate statements in a public place that will incite hatred against an identifiable group, and thereby lead to a breach of the peace; and

• Section 319(2) makes it an offense to communicate statements, other than in private conversation, which willfully promote hatred against an identifiable group.

Sections 318 and 319(2) require the consent of the relevant provincial attorney general before charges can be laid. This acts as a safeguard to ensure that freedom of speech is impaired in as minimal a fashion as possible.

Canadians may also gain protection against hate speech through the Canadian Human Rights Act and the codes which are enforced by provincial human rights commissions. This webpage focuses on the Canadian Human Rights Commission.

Section 13 of the Canadian Human Rights Act states that

It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

There are a number of differences between the Criminal Code and the Canadian Human Rights Act provisions.

• The intent of the criminal code is to punish wrong doing while the purpose of human rights law is to ameliorate conditions in society and provide education so that infractions do not re-occur;
• While the burden of proof for criminal offenses is proof beyond a reasonable doubt the human rights code relies on the standard that is used in civil proceedings, where decisions are based on a balance of probabilities; and
• In criminal proceedings, the Crown must prove that the accused had the intent to break the law (this is especially clear in section 319(2) which speaks to wilful promotion of hatred), while such intent is not required under the Canadian Human Rights Act.

These sections of the criminal and human rights codes have received significant attention since their inception and have been under increasing scrutiny since 2007 when human rights complaints were filed against  Maclean’s magazine for publishing an article by Mark Steyn, and against Ezra Levant for his publication of the so-called “Danish cartoons” in the now-defunct Western Standard. These complaints have now been rejected by the various provincial and national human rights commissions.  No matter, the question of Free Speech is firmly placed in the public square.

While critics of hate speech provisions may have somewhat mixed feelings on the inclusion of such an offence in the Criminal Code, many believe that section 13 has no justification.  Indeed, strident critics of this section have charged that it provides the basis for punishment for “thought crime” and that speech should be completely unfettered except in those rare cases where it presents a clear and present danger to society.

Canadian Jewish Congress respectfully disagrees.

Jurisprudence

Canadian Jewish Congress believes that the right of free speech, important as it is, is not an absolute right. In this, we are aligned with the majority decision of the Supreme Court of Canada in Canada v. Taylor, where the Court observed that “hate propaganda contributes little to the aspirations of Canadians or Canada, the quest for truth, the promotion of individual self-development or the protection and fostering of a vibrant democracy.”

In R. v. Keegstra, the Supreme Court of Canada provided a seminal definition of hatred:

The term ”hatred” does not denote a wide range of diverse emotions but rather covers only the most intense form of dislike. It is an extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill treatment on the basis of group affiliation.

In Taylor, the Supreme Court of Canada observed that a Canadian Human Rights Tribunal had defined “contempt” as “the condition of being condemned or despised; dishonour or disgrace. In this decision, which considered the constitutionality of section 13 of the Canadian Human Rights Act, Chief Justice Brian Dickson determined that the objective of section – to prevent the harms caused by hate propaganda – was of pressing and substantial importance, and that Parliament’s “concern that the dissemination of hate propaganda is antithetical to the general aim of the Act” was not misplaced. Chief Justice Dickson, in short, considered section 13 to be both constitutional nor proportionate.

Canadian Jewish Congress believes that a line needs to be drawn between speech that is and is not worthy of constitutional protection.  We think that the discussion of where to draw that line is healthy for democratic societies to consider.  We also believe that the connection between evil words and evil deeds cannot simply be swept aside, and is due some consideration. The horrors of the Holocaust, the Rwandan genocide, slavery, the depredations against Aboriginal people and the like did not spring up overnight. They grew in soil that was carefully prepared. We cannot be cavalier to this nexus in our approach.

CJC also believes that the remedy for poor administration of the law is better administration. If there are problems with application and process then those problems must be rectified.  It is simplistic and counter-productive, however, to simply discard the law.

A recent case illustrates the difference between the law and its administration.

In September 2009, the Canadian Human Rights Tribunal released its decision in the matter of Warman v. Lemire. During the proceeding, counsel for Mr. Lemire indicated that they would challenge the constitutionality of section 13. While many of their assertions were rejected by the Tribunal, one argument was accepted: that the ability of the Tribunal to assess a financial penalty for violation of section 13 was at odds with the educative and remedial intent of that section. Moreover, the Tribunal agreed that the lack of a requirement to show intent to expose persons to hatred or contempt was incompatible with the ability of the tribunal to impose a financial penalty.

Conclusion

As of this writing, the matter has not yet been resolved, but Canadian Jewish Congress has always maintained that the importance of section 13 lies in its ability to condemn formally expressions of hatred and to prevent their spread, rather than financially punishing the person who makes such statements.

Finally, there are those who observe, with seeming seriousness, that pre-Hitler Germany also had strict laws against hate speech but that these laws were insufficient to prevent the Holocaust. Thus, according to their reasoning, hate speech laws are useless and should be revoked. This is poor logic and poor history.

John Bookbinder, in his study of Weimar Germany, observes that “anti-Socialist or antisemitic violence, or for that matter inflammatory speech or writing, was dealt with harshly by the police and the judiciary” during the Wilhelmine era. We need to recognize that it was only during the post-war period of Weimar when German society – brutalized by the slaughter of the war, shocked by the unexpected defeat in the field, angered by the (perceived) punitive imposition of Versailles, abandoned by its Imperial traditions, and left unprotected by the collapse of the fragile democracy – plunged into social chaos. In the violence of the period that preceded the rise of Nazism, the legal system itself was a victim. To compare the situation of Germany in the 1920s and 1930s to present-day Canada is ludicrous.

Hateful speech has shown itself to be a necessary, if not sufficient precursor to acts of genocide and to the creation of systems of human misery that have spanned continents and generations.

The discourse of intolerance, repeated over generations, caused slavery to be seen as a normal state of affairs. Indeed, in the United States, it took war, not rational argument, to end it.

As for the Nazis, it took generations of repetition and elaboration of antisemitic tropes before they became self-evident.

As Alexander Tsesis has observed, “the ideology was so deeply entrenched that it seemed logical to them to round up Jews, put them in concentration camps and eventually try to exterminate them.” How is it that ideas that seem abhorrent today were the conventional wisdom of a few decades ago?

We cannot – and dare not – be insensitive to the power of language and its ability to shape our thoughts and behaviours. We ignore the power of language at our peril.