Thread by @JoshDehaas

Criminal hate speech laws in Canada are poorly understood.

I keep getting asked, so here's a quick primer.

Hate speech is difficult to define and risks chilling free speech. However, Parliament chose to criminalize it and the Supreme Court upheld that choice in R v Keegstra.

https://twitter.com/TorontoPolice/status/1721241512233648599

Hate speech is objectively defined so it doesn't matter whether an individual was offended.

What matters is whether "a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred." (R v Whatcott)

“Hatred” is "restricted to those extreme manifestations of the emotion described by the words 'detestation' and 'vilification.'"

Speech that is merely "repugnant," "humiliating" or offensive" is NOT hate speech and cannot be outlawed in Canada. (R v Whatcott)

Hate speech laws aren't meant to censor; they're meant to prevent harm. The focus must be on whether expression is "likely to expose the targeted person or group to hatred by others." (R v Whatcott)

Put differently, is the speech inciting others to vilify or detest? (R v Ward)

Section 319(2) of the Criminal Code is the main hate speech provision.

It outlaws "wilful promotion of hatred" by making it illegal to "communicate statements, other than in private conversation, wilfully promotes hatred against any identifiable group."

Max sentence: 2 years.

Identifiable groups include "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."

Yes, this includes Jews and Israelis.

Charges under 319(2) are rare, but anti-Semite Gabriel Sohier-Chaput was sentenced in September to 15 months of imprisonment for violating s. 319(2).

His writings included a call to action to resume Nazi-ism, and he encouraged others to detest Jews and take actions against them.

318(1) bans "advocating or promoting genocide" , meaning "committing with intent to destroy in whole or in part any identifiable group" by "killing members of the group or deliberately inflicting on the group conditions of life calculated to bring about its physical destruction"

I'm not aware of any convictions under section 318(1) but it was considered in the case Mugesera v Canada, in which the SCC upheld a deportation order against a man who had advocated genocide against the Tutsi people in his homeland, Rwanda.

319 (2.1) bans "communicating statements, other than in private conversation, wilfully promot(ing) antisemitism by condoning, denying or downplaying the Holocaust."

This is a new, untested provision added just last year. It is, in my view, a serious risk to free expression.

All three of the offenses noted above are unusual in that they require the consent of the Attorney General (for the province) to sign off before prosecution. This is unusual in provinces where police normally lay charges. It will likely contribute to some delay in laying charges.

If you want to know more, feel free to ask.