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Hate speech in Canada

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Status of free speech in Canada.
Criminal Code, sections 318 & 319.

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Status of free speech in Canada compared with the U.S.:

In the U.S., a person cannot falsely yell "fire" in a crowded movie theatre. But they are free to say just about anything else without danger of criminal prosecution.

For example:

bullet A fundamentalist Christian teleminister in the early 1990s advocated the execution of all Wiccans in the U.S.
 
bullet More recently. A fundamentalist Baptist pastor from Texas advocated that the U.S. army round up Wiccans and burn them alive with napalm.
 
bullet Recently, Merrill Keiser, Jr., apparently a fundamentalist Christian, entered the 2006-MAY Democratic primary with a platform calling for the genocide by execution of sexually active homosexuals. He told WTOL-TV in Toledo" "Just like we have laws against murder, we have laws against stealing, we have laws against taking drugs. We should have laws against immoral conduct."

All three were immune from prosecution due to the U.S. Constitution's First Amendment which guarantees almost complete freedom of speech in the country.

(We do not wish to overemphasize the advocacy of genocide by fundamentalist Christians. However, we are unaware of any other groups promoting genocide motivated by religion in the U.S.)

Canadians do not have this level of freedom of speech. Its citizens are not allowed to incite or promote hatred in some circumstance, or to advocate genocide or against certain specified groups, or actually commit genocide.

The Criminal Code of Canada: Hate propaganda sections:

Prior to 2004-APR-29, the "Hate Propaganda" section of the Criminal Code of Canada (Section 318 & 319) prohibited the expression of hatred against -- or the advocacy of genocide of -- four "identifiable groups:" people distinguished by their "color, race, religion or ethnic origin." 1

Curiously, gender, disability, sexual orientation, gender identity and other criteria were not included. Apparently one could have delivered a speech that "willfully promotes hatred" -- even one which "advocates or promotes genocide" -- against women, men, inter-sexual persons, the disabled, heterosexuals, bisexuals, homosexuals, cisgendered or transgender persons, transsexuals, and others while enjoying immunity of prosecution under the law.

Bill C-250 added sexual orientation to the list of "identifiable groups" when it was signed into law on 2004-APR-29. However, there are still many categories of people who remain unprotected against genocide advocacy and hate speech.

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Section 319 in the hate propaganda section of the criminal code:

This section deals with public incitement of hatred:
 
bullet If it can be shown that the speech was so abusive that it was likely to incite listeners or readers into violent action against an identifiable group, and if the the speech was made in a public place, then a person could be charged under this section.
 
bullet If the speech promoted hatred against an identifiable group, but was not likely to incite a listener to violence, then a person could still be charged. However there are many safeguards that could give that person immunity. A person could not be charged:
 
bullet If the hate speech was expressed during a private conversation.
 
bullet If the person can establish that the statements made are true.
 
bullet If, "in good faith, he expressed or attempted to establish by argument an opinion on a religious subject." This would give clergypersons immunity from conviction for a hate-based sermon, for example.
 
bullet If the statements were relevant to any subject of public interest, and if, on reasonable grounds, the person believed them to be true. This would give additional protection to clergy.
 
bullet If he described material that might generate feelings of hatred for an identifiable group "for the purpose of removal" of that hatred. This gives websites such as ours the freedom to document and expose religious and other forms of hatred without running afoul of this law.
 
bullet If the provincial Attorney General refused to give permission. The Attorney General's consent is required before charges can be laid.. 1

In this section of the Code, the term "statements" includes spoken words, written words, published text, gestures, signs and other visible representations, including the Internet.

The Code permits up to two years in prison for anyone convicted of a public incitement of hatred or willful promotion of hatred. It permits the government to confiscate any literature that was used in conjunction with the hate speech.
 

Section 318 in the hate propaganda section of the criminal code:

This section covers the advocacy or promotion of genocide.

This includes promoting the killing of members of an identifiable group, or "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction."

However, only certain categories of individuals are currently in identified groups: namely those "distinguished by their colour, race, religion, ethnic origin or sexual orientation."

Apparently, one can advocate genocide against women, men, inter-sexual persons, the mentally or physically disabled, cisgendered or transgender persons, transsexuals, the elderly, etc. and be immune from prosecution under this law. This is an omission that we find very strange.

If convicted, the perpetrator may be imprisoned for up to five years.

References used:

  1. "Hate propaganda: Advocating genocide," Criminal Code of Canada, at: http://laws.justice.gc.ca/

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Copyright 2003 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-AUG-09
Author: B.A. Robinson

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