State of the World's Minorities and Indigenous Peoples 2014 - Case study: Drawing the line between hate speech and freedom of expression in Canada

by Phyllis Gerstenfeld

Like the United States, Canada is a diverse, multi-ethnic society with a history of violence against and oppression of indigenous people, but its hate crime laws are still relatively new and evolving. One important difference between the United States and Canada, however, is that Canadian law has stronger measures against hate speech – that is, about offensive words or images that would not otherwise constitute a criminal offence. In the United States, the Supreme Court has adopted a restrictive approach to fundamental rights limitations, so unless the speech incites violence and is likely to give rise to imminent violence, it is unlikely that a case will be brought. In Canada, by contrast, hate speech may be penalized under other circumstances – though whether particular instances of speech meet the legal criteria for a criminal offence is not always certain.

In April 2013, for example, police refused to file hate crime charges against the Muslim Council of Calgary after it allegedly posted articles on its website accusing Jews of immorality and of plotting to destroy religion, provoking complaints from a local Jewish organization. Calgary police concluded that the articles – which were later removed from the website – were not hate crimes. As the case demonstrates, punishing hate speech raises complex definitional and policy problems. The application and limits of Canadian hate speech codes still appear somewhat unclear.

Furthermore, Canadian hate speech restrictions have been contentious. The debate centres primarily on the same issue that has received considerable attention in the United States and elsewhere: how to protect freedom of speech while discouraging the potentially negative effects of biased speech. This was particularly evident in the case of Section 13 of Canada's Human Rights Act, which includes a provision against the posting on the internet of 'any matter that is likely to expose a person or persons to hatred or contempt'. In June 2013, a bill repealing Section 13 was passed in the Senate, meaning that from June 2014 it will be officially annulled. However, in January 2014 a Federal Court of Appeal ruling found that Section 13 was not unconstitutional and did not violate free speech – a judgment that could see the law reinstated in future by another government.

Aside from the debate on Section 13, the Canadian Supreme Court upheld the principles of hate speech restrictions in another case from 2013 – in this instance, the application of the provincial hate speech code against an anti-gay activist in Saskatchewan. In doing so, the Court concluded that hate speech restrictions address an important problem and are proportionate to the harmful effects of hate speech. The Court also pointed out that hate speech tends to silence the target group and therefore hate speech itself diminishes freedom of expression.