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What Is Hate Speech? Are There Criminal Charges Involved?

Posted on April 22, 2021

Ross Lutz Barristers hate speech Featured

With the current political climate and popularity of social media platforms allowing for rampant hate speech online, many individuals are beginning to wonder exactly how the law protects their freedom of speech. While your freedom of speech is protected, and many believe that there should be no censorship of speech regardless of what is said, it is important to understand the legal ramifications of hate speech in Canada. Where is the line drawn between freedom of speech and hate speech? Are there criminal charges for hate speech, and what are the possible lines of defence against hate speech charges?

What Is Hate Speech?

Hate speech refers to deliberate, abusive and threatening speech against one identifiable group of people. These identifiable groups can include different racial groups, genders, sexual orientations and more. The Criminal Code and the Alberta Human Rights Act (AHRA) cover both hate speech, along with the display and publication of hate symbols, publications, signs and more.

The legislation exists to protect groups from facing discrimination, but how is hate speech defined? Can you be punished for just exercising your freedom of speech?

Legal Punishments For Hate Crimes

In Canada, hate crimes are regulated both federally and provincially. Federally, the Criminal Code prohibits public incitement of hatred or wilful promotion of hatred. In section 319(1) of the Criminal Code, anyone that incites hatred against an identifiable group by communicating hateful statements that are likely to lead to a breach of the peace can be facing sentencing of up to two years.

Additionally, the next section of the Criminal Code covers individuals who, outside of private conversations, wilfully promote hatred against an identifiable group and face a maximum sentence of two years.

The Alberta Human Rights Act forbids discrimination, including the publishing or display before the public of any publication, symbol, notice, sign or representation that indicates discrimination or an intention to discriminate against a person or a class of persons. The AHRA also protects against the display or publication of anything likely to subject a person or class of persons to hatred or contempt in tenancy or employment situations. Under the Human Rights Act, a class of persons can be defined by:

  • Race
  • Religious Beliefs
  • Colour
  • Gender
  • Gender Identity & Gender Expression
  • Physical Disability Or Mental Disability
  • Sexual Orientation
  • Age
  • Ancestry
  • Place Of Origin
  • Marital Status
  • Source Of Income
  • Family Status
hate speech

Criminal Charges For Hate Speech

As mentioned above, the Criminal Code prohibits public incitement of hatred or wilful promotion of hatred, and both have a maximum sentence of up to two years. However, the Alberta Human Rights Act is not meant to punish offenders. Unlike the Criminal Code, which has punishment as a purpose, the Alberta Human Rights Act is meant to provide relief for the victims of discrimination. Instead of punishing the offender, the AHRA will provide relief or compensation for the victim.

For example, if an individual is being discriminated against in the workplace for their sexual orientation, the Humans Right Tribunal may order certain steps to be taken. These steps can include an apology, establishing a formal policy against discrimination in the workplace, or even paying employees their lost wages. You cannot face criminal charges under the Alberta Human Rights Act but will likely have to cooperate in other ways.

Possible Defences Against Hate Speech

Suppose you find yourself in the position where you are facing criminal charges for hate speech when you thought you were exercising your freedom of expression. In that case, there are a few different defences your lawyer can pursue. The Criminal Code, in cases of wilfully promoting hatred, states that no one should be convicted if:

  • They Establish That The Statements Communicated Are/Were True
  • The Individual Was Expressing Or Attempting To Establish, Through An Argument, An Opinion On A Religious Subject Or An Opinion Based On A Belief In A Religious Text
  • The Statements Were Relevant To Public Interest, Public Benefit, Or If The Individual On Reasonable Grounds Believed Them To Be True
  • The Individual's Intention Was To Point Out For The Purpose Of The Removal, Matters Producing Or Tending To Produce Feelings Of Hatred Towards An Identifiable Group In Canada

Defending Yourself Against Charges

If you are currently facing criminal charges for public incitement of hatred or wilful promotion of hatred, it's essential to contact a lawyer immediately. An experienced criminal defence lawyer will be familiar with possible defence strategies, along with rulings in similar cases. Being familiar with all possible options for your defence will allow your lawyer to pursue all available avenues.

At Ross Lutz Barristers, we are familiar with defending all types of serious criminal charges. Let us help protect your freedom and your freedom of speech against hate speech charges. Contact us to see how we can help today.