Legislation
Canada
Applicable Provisions from the Canadian Human Rights Act
Section 13. (1) 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.
(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.
(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.
Remedies from the Canadian Human Rights Act
Remedies under the Canadian Human Rights Act
Section 53 (1) At the conclusion of an inquiry, the member or panel conducting the inquiry shall dismiss the complaint if the member or panel finds that the complaint is not substantiated.
(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future…
(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.
Section 54 (1) If a member or panel finds that a complaint related to a discriminatory practice described in section 13 is substantiated, the member or panel may make only one or more of the following orders:
(a) an order containing terms referred to in paragraph 53(2)(a);
(b) an order under subsection 53(3) to compensate a victim specifically identified in the communication that constituted the discriminatory practice; and
(c)an order to pay a penalty of not more than ten thousand dollars.
(1.1) In deciding whether to order the person to pay the penalty, the member or panel shall take into account the following factors:
(a) the nature, circumstances, extent and gravity of the discriminatory practice; and
(b) the wilfulness or intent of the person who engaged in the discriminatory practice, any prior discriminatory practices that the person has engaged in and the person’s ability to pay the penalty.
57. An order under section 53 or 54 may, for the purpose of enforcement, be made an order of the Federal Court by following the usual practice and procedure or by the Commission filing in the Registry of the Court a copy of the order certified to be a true copy.
Relevant Criminal Code Offences- HATE PROPAGANDA
318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(2) In this section, “genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,
(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.
(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.
319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
Judicial Interpretations of Sections 319 (2) & 319 (3) from the Canadian Criminal Code
- “Private conversation”
- “Wilfully”
- “Promotes”
- “Hatred”
- Defences
“Private conversation”
- Private conversations taking place in public areas are not prohibited. A conversation or communication intended to be private does not satisfy the requirements of the provision if through accident or negligence an individual's expression of hatred for an identifiable group is made public [See Keegstra].
- A recorded interview with a reporter was not a private conversation [See Ahenakew].
“Wilfully”
- The mental element is satisfied only where an accused subjectively desires the promotion of hatred or foresees such a consequence as certain or substantially certain to result from an act done in order to achieve some other purpose [See Keegstra].
- “Wilful” conduct requires more than mere negligence or recklessness as to result. [See Keegstra].
- Wilful blindness satisfies the stringent mens rea requirement of section 319 (2). Wilful blindness is equivalent to actual knowledge because the accused “knew or strongly suspected” that inquiry on his part respecting the consequences of his acts would fix him with the actual knowledge he wished to avoid [See Harding].
- The necessary "mens rea" must be inferred from the offending statements themselves since those who promote hatred rarely explicitly admit their intention [See Ahenakew].
“Promotes”
- Active support or instigation. “Promotes” means more than simple encouragement or advancement [See Keegstra].
“Hatred”
- To instil detestation, enmity, ill-will and malevolence in another [See Andrews].
- Emotion of an intense and extreme nature that is clearly associated with vilification and detestation [See Keegstra].
- A most 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. [See Keegstra].
Defences
s. 319 (3) (a): Reversing the Burden of Proof to the defence that the statements were true infringes the guarantee to the presumption of innocence in section 11(d) of the Charter of Rights and Freedoms but is a reasonable limit and therefore valid [See Keegstra].
s. 319 (3) (d): This defence was provided out of an abundance of caution since it would be rare that a person could successfully invoke this exemption where it was shown that he willfully promoted hatred [R. v. Buzzanga & Durocher (1979), 49 C.C.C. (2D) 369 (Not summarized herein)].
