HC1. I’ve been hearing a lot on the news lately about hate crime. Is it against the law to dislike someone?
Of course not. Canadians want the right to express their likes and dislikes. However, hate involves more than bad feelings. Hate can lead to violence, and that is why the law sometimes steps in. As long as people attack others because of their skin colour, place of birth, or worship choices, no one will really be free. (05.21.98)
Yes. The law protects people from being the victim of hate because of colour, race, religion or ethnic origin. Ethnic origin means where you are originally from, or where your ancestors were from. (05.21.98)
Most crimes involve a certain amount of hate and anger, but hate crimes are special. They cause two sorts of harm: they cause emotional damage to members of the target group. Secondly, they can create serious discord between various cultural groups in society. Thus, they attack the basic bonds that bind our culturally diverse society together. The Criminal Code specifically defines hate crimes. They involve hate against people because of their colour, race, religion or ethnic origin. In these kinds of crimes, the act of spreading hate is against the law. (05.21.98)
Not exactly. If someone hits you because they hate you, that person is committing the crime of assault. The hitting, not the hating, creates the crime.
However, the punishment may be different for hitting someone because of hate. Offenders may commit crimes like assault or arson out of hate or prejudice based on the victims:
- race, colour, national or ethnic origin
- sex, or sexual orientation
- mental or physical disability
The law encourages judges to give tougher punishments to these offenders.
For more information on these kinds of crimes, see the topic Other Crimes Motivated by Hate. (05.21.98)
There are actually three kinds of hate crimes. They are called:
- advocating genocide
- publicly inciting hatred and
- wilfully promoting hatred.
Unless the crime involves one of those three actions, technically it’s not a hate crime. It wouldn’t matter how much hate the person committing the crime had. (05.21.98)
Genocide means killing people because they belong to a group of a particular colour, race, religion or ethnic origin with the intention of destroying all or part of that group. We call groups based on these characteristics identifiable groups. Examples of these identifiable groups might be:
- people from a particular country,
- people who practice a certain kind of religion
- people who have a certain skin colour.
Most people belong to many different groups. You may belong to a group of people who are Roman Catholics, as well as a group of people whose family came from Africa. Your neighbour may be in your Roman Catholic group, but in a different ethnic group because his family came from Ireland. (05.21.98)
To advocate genocide is to argue or urge that people should kill others because of their colour, race, religion or ethnic origin. The Criminal Code makes this a very serious crime. Advocating genocide also includes publicly and actively supporting or strongly encouraging genocide. (05.21.98)
Suppose someone makes a hateful statement in a public place, even in the course of private conversation. These words stir up or encourage hatred against a group of persons because of their colour, race, religion or ethnic origin. If those statements are likely to lead to a breach of the peace, the speaker has committed the crime of publicly inciting hatred. (05.21.98)
You can make statements in many ways. Statements can be recorded, spoken or shouted words, or written words, like on a sign. Statements may not even be words, but just gestures. You can make a statement by voice, telephone, over a radio or television broadcast, or in any other way that people can see or hear it. (05.21.98)
A public place is anywhere that members of the public have the right to go, or anywhere people invite them to go. Streets, public squares, shopping centres, schools and sports arenas are all public places where people may freely go. (05.21.98)
HC11. Last week, while delivering papers, I overheard people in their backyard making hateful statements. Are they committing the crime of publicly inciting hatred?
No. People must make statements in a public place. Someone’s backyard is usually private property, and not a public place. But if those people invited the public to come to a meeting in their backyard, then it would be a public place. They would be breaking the law if their statements were likely to lead to a breach of the peace. (05.21.98)
It is. A breach of the peace is an action that causes a public disturbance. Public arguments, fistfights, rioting and looting are all examples of breaches of the peace. (05.21.98)
They can be guilty if their statements are likely to lead to a breach of the peace. “Likely” means that a reasonable person thinks that there is a strong chance that the hateful statements will make people upset and cause a public disturbance. In that case, the person making the statements has committed the crime of publicly inciting hatred, though no one actually started a fight or a riot. (05.21.98)
Promoting hatred means making statements that strongly encourage people to hate a group because of its colour, race, religion or ethnic origin. The people making hate statements must mean to say them, but actual hatred need not result from those statements. However, the statements must be made in other than private conversation. (05.21.98)
The crime of wilful promotion of hatred does not apply to statements made in a private conversation. The statements must be in “other than private conversation.” Defining what is a private conversation can be a tricky thing. A private conversation can take place in a private place, like a house, or in a public place, like a mall or classroom. It can take place between 2 people or 6 people. For example, suppose your local cub scout meeting takes place in the basement of a scout leader’s house. If during the meeting four scout leaders make statements wilfully promoting hatred in a conversation directed only to each other, they are engaged in a private conversation. If they then make those same statements promoting hatred to the scout troop as part of the scout activities, the conversation is no longer private. (05.21.98)
No, each crime is different. The crime of publicly inciting hatred is really aimed at preventing a public disturbance because someone decides to make statements that incite hatred. Those statements could be made in a private conversation, but they must be made in a public place.
The crime of wilful promotion of hatred is aimed at preventing the promotion of hate generally, regardless as to whether a public disturbance is likely. It doesn’t matter whether the statements are made in a public or private place, but the statements must:
- not be part of private conversation
- promote hatred against an identifiable group.
HC17. What are some specific examples that underline the differences between wilful promotion of hatred and publicly inciting hatred?
Suppose a police officers overhears two people talking at a table in a shopping mall food court. The two individuals are having a private conversation while they eat, and one of them is saying hateful things about people from Holland. The statements anger several persons of Dutch ancestry sitting nearby, and a heated disagreement begins to erupt. The police officer steps in, and must decide what charges, if any to bring because of the incident.
A charge of publicly inciting hatred may be laid against the maker of the hateful statements, because the maker incited hatred through his statements, which were made in a public place, and were likely to (and almost did) lead to a public disturbance. A charge of wilfully promotion of hatred would not be appropriate, however, because the statements, though hateful, were made as part of a private conversation. (05.21.98)
HC18. Could you give me a case where the law has convicted someone of the crime of wilful promotion of hate?
James Keegstra, an Alberta high school teacher, taught his class that the Nazis did not kill six million Jewish people during the Holocaust. He also made many anti-Semitic remarks and taught about a conspiracy of Jewish people to take over the world. He told his students that for many of our social problems, the Jews were responsible. What he said is simply not true. The law convicted James Keegstra of the crime of wilfully promoting hatred. Because Keegstra said this to his students during class time, the statements were public and not part of a private conversation. The Supreme Court of Canada decided that Keegstra said them on purpose to incite hatred against Jewish people. The Court also said that an ordinary person would know that the statements were false, even if Keegstra believed they were true. (05.21.98)
HC19. How does this relate to freedom of speech? Don’t Canadians have the right to say what they think?
The Canadian Charter of Rights and Freedoms guarantees everyone the right to freedom of expression. When the Supreme Court of Canada reviewed James Keegstra’s case, all nine judges agreed that the law against the wilful promotion of hate offended that guarantee of free expression. However, the Court then ruled that the law was a reasonable limit on freedom of expression in Canada’s free and democratic society. In other words, although the law did limit free expression, that limit was reasonable given the benefits that the law provided and the nature of the limitation.
The Criminal Code also gives several defences to anyone who might be charged with this crime. (05.21.98)
Defences are like legal excuses, or good reasons a person will not be convicted of a crime. For example, if you got a speeding ticket, a defence might be to argue that you had to rush a very sick person to the hospital. That could be a very good reason to drive faster than the speed limit. But you could not use the defence that you drove fast in order to get home and watch your favourite TV show. Sometimes, the section of the Criminal Code that defines a crime also lists defences for a person who is charged with that crime. (05.21.98)
No one shall be convicted of wilfully promoting hatred if the following conditions exist:
- the person’s statements were true, even if they promoted hatred
- the person making the statements honestly was just trying to express an opinion upon a religious subject
- the person reasonably believed the statements he or she made were true, and the statements were relevant to a subject of public interest, the discussion of which was for the public benefit
- the person was trying to point out situations that promoted hatred toward a group, but only to help remove those hateful feelings.
No. These defences only apply to someone accused of wilfully promoting hatred. (05.21.98)