This document focuses specifically on hate crime as it is defined in the Criminal Code of Canada in sections 318, 319, 430(4.1) and the purposes and principles of sentencing (718.2(a)(i)). While not all acts rise to the level of criminal charges, relief mechanisms for acts of discrimination and harassment in the provision of goods, services and facilities and other areas such as employment and accommodation, are available through the Canadian and provincial human rights codes. The codes are substantially similar but the readers should consult the human rights commission in their province in order to discuss their issue and determine the proper means of proceeding.
Hate Crime remains a persistent problem in Canada. Statistics gathered by the Government of Canada over the last 10 years record an average of 1,213 incidents per year, ranging from a low of 765 (2007) to a high of 1,473 (2009).[i] While this number represents only a small portion of the total number of crimes reported to police, the impact of hate crimes exceeds the mere number of recorded incidents.
Because of the broad reverberation of hatred, hate crimes result in a disproportionate level of harm, which affects not only the individual, but also the victim’s community. Attacks, whether directed against individuals or communal institutions, may have the effect of leaving entire communities feeling vulnerable and isolated. Individual reactions can mirror post-traumatic stress disorder.
Hate crimes contribute to disunity in society, compromise democratic values, and maintain inequality. They send an explicit message that entire groups of citizens are unworthy of respect, lack redeeming characteristics and are worthy of contempt. In extreme cases they promote the corrosive concept that “to be different is to be dangerous”.
For that reason, hate crimes are everyone’s business.
Hate crimes refer to criminal incidents that are found to have been motivated by hatred toward an identifiable group. According to s318(4) of the Criminal Code of Canada such groups are distinguishable by race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor.[ii] In other words, any criminal act has the potential to be a hate crime if the hate motivation can be proven.
Hate propaganda, the promotion of hatred against identifiable groups, became a criminal offense in Canada in 1970, when the hate laws were adopted as amendments to the Criminal Code. In 1996, an amendment to the Criminal Code made hate motivation an aggravating factor as it related to sentencing, enshrining in law the precedent that hate motivation makes a crime more serious (718.2(a)(i)).
Parallel to this development, Canada ratified the UN International Convention on the Elimination of All Forms of Racial Discrimination in 1970. The Canadian Human Rights Act and the various provincial human rights codes also address the issue of hate. Countering hate crime is not only consistent with our international obligation under the Convention, but is based on a vision of our multicultural society that is entrenched in the Canadian Bill of Rights (1960) and articulated clearly in the Charter of Rights and Freedoms (1982).
A uniquely identified offence - Mischief Relating to Religious Property (s430(4.1) - is defined as damage against a property that is “primarily used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery ...”[iii]
The Criminal Code also includes three specific offences that are listed under the rubric of hate propaganda:
Under s319, no charges can be laid for alleged offences without the consent of the provincial Attorney General. Until recently, this has meant that relatively few charges have been laid under this section
Over time, the collection of crime statistics has revealed a number of trends[iv]:
These trends are consistent over time but should not distract from incidents which impact other communities. For example, according to Statistics Canada, in 2015, police-reported hate crimes against members of the Muslim community increased by 60% from 2014 (159 incidents compared to 99 incidents). A 57% increase in the number of hate crimes against Catholics was also reported in the same period (from 35 to 55).
It is of course important to remember that the reports generated by Statistics Canada are based only on those incidents that are reported to police and are subsequently classified as motivated by hate. Incidents that do not meet the classification criteria will not be included in the statistics. As well, there is ongoing debate over the degree to which hate crimes are under-reported to the police: “According to the 2014 General Social Survey (GSS) on Canadians' Safety (Victimization), about two-thirds of individuals who said they had been victims of hate-motivated incidents did not report the incidents to the police.”[v] Research also suggests that there may be differences in the reporting of hate crimes by various targeted communities.[vi]
The level of oversight by the Attorney General is intended partly to ensure that as far as possible, a balance is maintained between the right to Freedom of Speech and the right of individuals to be protected from the effects of hateful speech. In setting the bar for prosecution, the law draws a distinction between speech that is criminally hateful and that which is offensive. Thus, although the Supreme Court of Canada declared s319 to be constitutional, the 5-4 vote reflected in part the concern not to overly interfere with freedom of expression.
This distinction requires some additional attention.
One of our most highly prized freedoms is enshrined in the Canadian Charter of Rights and Freedoms. s2(b) of the Charter proclaims that we enjoy the fundamental freedoms of “thought, belief, opinion and expression, including freedom of the press and other media of communication”. But the Charter also recognizes that these freedoms are not absolute. This is acknowledged in s1, which “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[vii]
The tension between ss. 1 and 2(b) in the Charter leads us directly to the challenge of balancing freedom of speech against the right to be free from the effects of hateful speech.
The topic is highly charged. Some favour the American model where freedom of speech, though not absolute, is restrained under only the most serious of circumstances. On the other end of the continuum are those who call for a broadening of Canadian hate crime laws or a more vigorous use of existing statutes. In 2013 we saw an example of this debate when the federal government voted to repeal s13 of the Canadian Human Rights Act (which provided protection against the promotion of hatred on the Internet). Although s13 had been found to be constitutionally valid by the courts, the view of Parliament was that the reach of the section was overly broad and lacked the rigour of criminal proceedings which require a higher burden of proof than the civil proceedings of human rights tribunals.
Arguments over the appropriate means of maintaining a balance among what some say are competing rights, have risen to the level of the Supreme Court of Canada. In a number of important cases, the Court has found the hate propaganda sections of the Criminal Code to be constitutionally valid. In Keegstra (1990), Chief Justice Brian Dickson noted that:
Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics. This brand of expressive activity is thus wholly inimical to the democratic aspirations of the free expression guarantee. [viii]
He went on to state that “given the unparalleled vigour with which hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need be treated with equal respect and dignity so as to make participation in the political process meaningful, I am unable to see the protection of such expression as integral to the democratic ideal so central to the [s2(b)] rationale.”[ix]
In so saying, Dickson CJ was in accord with a ruling made by the Supreme Court in the matter of Taylor (1990), where, regarding the use of s13 to combat the spread of hatred, the Court noted that:
Hate propaganda presents a serious threat to society. It undermines the dignity and self‑worth of target group members and, more generally, contributes to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open‑mindedness that must flourish in a multicultural society which is committed to the idea of equality. Hate propaganda contributes little to the aspirations of Canadians or Canada in the quest for truth, the promotion of individual self‑development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged.[x]
A sample of significant criminal and human rights proceedings may be found in Appendix 1 of this document.
Finally, while public opinion rightly condemns the use of language that is, for example, racist or homophobic, the words in and of themselves do not constitute a criminal act. Thus, one may refer to members of different communities in the vilest of terms without being in violation of the law. That said, language can be offered as evidence when motivation is being determined in a criminal proceeding. A physical assault in a bar over a sporting event is a serious incident. The same incident, following a homophobic insult may be indicative of the state of mind of the aggressor. Legal implications aside, the use of hateful, contemptuous language serves to create a poisoned environment whether in the workplace, the private sphere or the public square. We have a shared responsibility to challenge that language when we hear it.
It is difficult, if not impossible, to assemble a profile of either the “typical” victim or perpetrator of a hate crime. Motivations can vary from situation to situation and patterns may shift from year to year. That said, and looking at data gathered for 2015[xi], some general observations can be made:
What motivates the perpetrator?
Beyond the obvious trigger factors of religion, race, ethnicity and sexual orientation, can we come to any conclusions about what moves an individual to move from passive dislike to criminal action?
While it is tempting to assign blanket explanations to the phenomenon of hatred, the reality is often more complex. Without denying the existence of certain commonalities (fear of the “other”, dissatisfaction with one’s perceived place in the social order, etc.), it is important to remember that hatred – whether based on religion, ethnicity or sexual orientation – can be quite specific. One group, for example, may be hated for ‘reasons’ that are very different from those used to justify hatred of members of another group.
The goal of hate propaganda and hate mongers is to portray a group as inferior, and/or dangerous. Such behaviour undercuts the very values of our society and has the potential to set individuals and groups against each other. In extreme cases, where circumstances are ripe, hatred of the “other” can poison the political process (as it did in Nazi Germany) or become the means of settling long standing antipathies (as it did in Rwanda). The irony of such genocidal eruptions – often shared with those who engage in and promote acts of hatred – is that perpetrators often feel themselves to be victims. They perceive their actions as acts of self-defence against the perceived threats to the status quo, leading to loss of their historically enjoyed advantage which they attributed to their alleged superiority over others.
One of the appeals of hate propaganda is that it offers a ‘simple’ explanation for complex problems. During times of economic uncertainty, for example, some people may look to blame others for their misfortune in order to make it more understandable. To that extent, hate-mongers are often motivated by conspiracy theories such as the Protocols of the Elders of Zion or the notion of a White Genocide.
Responding to hate crimes requires a multifaceted approach, including protection (by the law – as outlined above), prevention (through education) and partnerships (community coalition building), as well as the effective use of the criminal system for deterrence and rehabilitation purposes, and administrative and civil justice system for effective remedies.
The struggle against racism and hate propaganda will ultimately be won through increased efforts to incorporate multicultural, human rights and positive race relations education in our schools at every level - early childhood through post-secondary - including the in-service training of educators and professionals. Most school boards, colleges and universities have human rights or race and ethnocultural equity policies, but it is essential that the students and the public know to whom to report incidents, and can be assured that something will be done. Schools and communities need also to recognize and be encouraged to report evidence of hate group activity, such as the various hate symbols and tattoos used by hate mongers, and their recruitment strategies, including hate on the internet. Public service announcements and public education campaigns, such as those surrounding March 21st, the International Day for the Elimination of Racial Discrimination, and December 10th, International Human Rights Day, are helpful in raising awareness - as long as they are not simply one-day events, but effect real learning and change. Increasingly, resources are available to assist educators and employers in this important task. [xii]
As noted above, one of the effects of hate propaganda and hate crime is to isolate the victim and the victim’s community. It is perhaps cliché to say that “an attack on one is an attack on us all”, but that is precisely the response that is required. Community action and coalition building can draw attention to the issues and strengthen the cause. Not only does it raise awareness, but community cooperation increases vigilance, reduces fear, and promotes security and solidarity in the fight against racism and hate. When people from diverse backgrounds work together, they also learn more about each other, thereby reducing prejudice and stereotyping and promoting understanding, unity and social cohesion.
As noted in this document, the Criminal Code of Canada contains provisions for dealing with manifestations of hatred, whether expressed in words and other public communications or in criminal activities that are motivated by hatred. Police services in Canada have a responsibility to investigate such activities and inform the Crown if they believe that hate or bias may be a factor. But the police can only perform their investigative role if they are advised by the public. In some situations, such as the vandalizing of a place of worship with a swastika, the possibility of hate motivation is obvious. But this is not always the case. For example, a physical altercation between two strangers may only be treated as an assault unless the police are informed that racially charged language was uttered before blows were struck. Charges, much less convictions, are not automatic, but the police and the Crown cannot act on information that they do not have.
While this document has focused on the Criminal Code, other avenues are available to persons who believe that they have been the victim of non-criminal activities such as discrimination or workplace harassment, or have been targeted by offensive verbal language based on their race, religion, sexual orientation or other similar ground. Federal and provincial human rights codes may provide relief from such behaviours in accordance with the civil justice system which requires a less onerous quantum of proof.
In his 1986 Nobel Prize acceptance speech, Elie Wiesel said: “Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.”[xiii] From this we can draw an important lesson: that we do not, as engaged citizens, have the luxury of ignoring hateful activity when it happens.
Getting involved doesn’t mean placing yourself at risk. There are things you can do to increase the likelihood that hate crimes are noted, reported and properly investigated. Please review our Frequently Asked Questions, found below.
What qualifies as a hate crime or a hate incident? As we said above, any criminal activity can be a hate crime if it is motivated by bias or hatred against a person or a community because of, for example, skin colour, religion or sexual orientation. It could be graffiti on the wall, damage to a car, physical assault. If you have reason to believe that hate or bias could be at play, then please don’t ignore it.
Should I contact the police? Yes, you should. The police are responsible for recording and investigating such occurrences. Your police service may have a dedicated hate crimes unit but your initial contact will likely be with an Officer from your local division. When you speak to the police, make sure that you have all of the important information with you. It’s important to write down what you saw, when and where you saw it and (in some cases) whom you saw do it. You may think that you will remember the details but it’s much better to write them down. You should also record the name and badge number of any police Officers with whom you speak.
But what if it’s nothing? Let the police decide. That’s their area of expertise.
I’m a little nervous about contacting the police. That’s understandable. It’s always better for a witness to contact the police directly but if you are hesitant to do so, then you should reach out to an organization that represents your community. They may be able to work with you, or perhaps report the incident on your behalf.
Should I contact the media (newspapers)? The internet and various social media platforms make it likely that someone will have taken a picture of a public incident and shared it broadly. While you don’t have control over what others do, we suggest that you work cooperatively with the police or your community’s advocacy organization to ensure that media exposure is handled responsibly and that a clear message is developed and shared.
What about my city Councillor or other elected representatives? There is no reason why you should not reach out to your representatives. They can be very helpful in setting the tone for public discussion by clearly condemning such acts. Be sure that they know whether you have been in contact with the police or advocacy organizations.
Is there anything I should be doing before an incident occurs? Absolutely. It’s always good to be informed, and better to be prepared. Contact an experienced organization and/or your local police service for training or information sessions on recognizing and responding to hate/bias crimes and incidents. They will conduct them for your place of worship, school or community centre, and assist in education programs, coalition building and partnerships necessary to create a safe and secure community.
Appendix 1- Selected Hate Crime and Human Rights Proceedings in Canada[xiv]
R. v. Krymowski, 2005 SCC 7,  1 S.C.R. 101
Krymowski was charged under s. 319 (2) of the Criminal Code for wilful promotion of hatred against an identifiable group. He communicated statements (including written statements) against the Roma. The defence accepted that the Roma are an identifiable group, however they stated that the demonstrations were directed against “gypsies” and there is no evidence that they are the same as the Roma. The Crown did not prove an essential element of the offence and the trial judge acquitted the accused. The Crown made appeals to the summary conviction appeal court and the Court of Appeal, both of which were dismissed. The Supreme Court set aside both appeals and new trials were ordered. It was ruled that it was not necessary for the Crown to prove that the “gypsies” and Roma are the same and that the trial judge focused too much on the statement.
R. v. Keegstra,  3 S.C.R. 697
Keegstra was a high school teacher in Alberta. He had been communicating antisemitic statements to his students. There were a number of sections of the Criminal Code and Canadian Charter of Rights and Freedoms which were tested in this case. Keegstra was charged under s. 319 (2) of the Criminal Code which is wilfully promoting hatred against an identifiable group. Keegstra had applied prior to his trial to the Court of Queen’s Bench for an order to repeal the charge because 319(2) of the Code violated Keegstra’s freedom of expression guaranteed under s. 2 (b) of the Charter. The court dismissed the application. Keegstra argued that the Code violated s. 11 (d) of the Charter which outlined the presumption of innocence. This was disallowed by the Court as well. s319(3)(a) allows the defence of “truth” to the wilful promotion of hatred but only after a balance of probabilities is communicated through statements. Keegstra was tried and convicted. The Court of Appeal ruled that ss. 319(2) and 319(3)(a) of the Code did infringe on ss. 2(b) and 11(d) of the Charter and that it was not justifiable under s.1 of the Charter. The Supreme Court allowed the appeal, stating that the sections in the Criminal Code are constitutional.
R. v. Zundel,  2 S.C.R. 731
Zundel was charged with spreading false news when he published a pamphlet titled, Did Six Million Really Die? The pamphlet suggested that it had not been proven that six million Jewish people had been killed before and during World War II. This charge was contrary to s. 181 of the Criminal Code which states that a person who wilfully publishes news which is known to be false, that can cause or has caused injury or mischief, is guilty of an indictable offence and can be imprisoned. After several trials and appeals, the Supreme Court found that that s181 of the Code was unconstitutional.
R. v. Andrews,  3 S.C.R. 870
Andrews, a leader of the Nationalist Party of Canada, was charged under s319 (2) of the Canadian Criminal Code for the wilful promotion of hatred against an identifiable group. Andrews and co-accused Robert Smith, the secretary of the Nationalist Party of Canada, were members of the central committee which was responsible for the publication of the Nationalist Reporter, which promoted White supremacy. They were both convicted; this was upheld by the Court of Appeal. The Supreme Court dismissed the appeal on the grounds that the relevant sections under the Criminal Code are constitutional.
In 2005, Bill Whatcott was found by the Saskatchewan Human Rights Tribunal to have violated s14 of the Saskatchewan Human Rights Code, which prohibits "publication or display of any representation that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground". The substance of the complaint rested on flyers with such titles as “Keep Homosexuality out of Saskatoon's Public Schools!" and "Sodomites in our Public Schools". The Tribunal held that each of the 4 flyers was in contravention of the provincial code and that Mr. Whatcott’s Charter right to freedom of speech was not unreasonably restricted. Mr. Whatcott appealed the decision of the Tribunal. In 2007, the Saskatchewan Court of Queen's Bench upheld the Tribunal's findings with respect to the violation of s14 of the SHRC and its constitutionality. In 2010, the case was appealed to the Saskatchewan Court of Appeal. The court held that the Tribunal and the trial judge had erred by considering only certain phrases from the flyers and that the flyers were not a prohibited hate publication. The Saskatchewan Human Rights Commission sought leave to appeal the decision to the Supreme Court of Canada. The Supreme Court heard the appeal in 2011 and delivered its decision in 2013.
In a 5-0 decision, the Court ruled that Canada’s human rights hate speech laws are a constitutionally valid limit on freedom of expression. Upholding the definition of hatred first developed by the Supreme Court in 1991, the Supreme Court ruled that the hate speech section of Saskatchewan’s Human Rights Code addresses a pressing and substantial issue, and is proportional to its objective of “tackling causes of discriminatory activity to reduce the harmful effects and social costs of discrimination”. In so doing, the court upheld the legal concept of speech that is “likely to expose” certain groups to hatred. In the Reasons for the judgment, Justice Rothstein stated that the law “appropriately balances the fundamental values underlying freedom of expression with competing Charter rights and other values essential to a free and democratic society, in this case a commitment to equality and respect for group identity and the inherent dignity owed to all human beings”. The judges reinstated Mr. Whatcott’s conviction by a hate speech Tribunal in the case of two anti-gay fliers he distributed, but overturned it in the case of two others.
As advice to future hate Tribunals, the judges offered three main pieces of guidance:
First, these laws must be applied objectively, which is difficult in the case of subjective emotion, though not impossible, the judges ruled. The key is to focus on the effects of hate speech, not the intent of the speaker.
Second, hate must be understood to be the extreme manifestations of the emotion described by the words “detestation” and “vilification”, but nothing less. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects,” they wrote.
Third, Tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. “The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination,” they decided. “The difficulty of establishing causality and the seriousness of the harm to vulnerable groups justifies the imposition of preventive measures that do not require proof of actual harm.”
Abrams v. North Shore Free Press Ltd. and Collins (No.3) (1999), 33 C.H.R.R. D/435 (B.C. Tribunal)
In this case, the Complainant, Harry Abrams claimed that the Respondents, North Shore Free Press Ltd. and Doug Collins, published or caused to be published articles that discriminate against Jewish persons and are likely to expose those persons to hatred or contempt on the basis of race, religion and ancestry, contrary to s2 of the British Columbia Human Rights Act, S.B.C. 1984, c. 22, now s7 of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210. In particular, he alleged “that the continual barrage of articles written by Mr. Doug Collins promoting his view on Holocaust revisionism and Jewish conspiracies, have a cumulative effect of promoting hatred and contempt towards Jewish people”. The Respondents countered that s2 of the British Columbia Human Rights Act violates s2 of the Canadian Charter of Rights and Freedoms. The Tribunal decided that there was sufficient evidence to rule in favor of the Complainant. Collins and the North Shore News were ordered to cease publishing statements that are likely to expose Jewish persons to hatred and contempt and refrain from committing the same or similar contravention, and pay a fine of $2,000 to the Complainant as compensation for the injury they had caused to his dignity and self-respect.
Ross v. New Brunswick School District No. 15,  1 S.C.R. 825
In this case, the Complainant, Malcolm Ross, alleged that the New Brunswick School Board had wrongfully dismissed him from his teaching position for discriminatory remarks he made both in and outside the classroom. For several years, Ross made racist and discriminatory statements about Jewish peoples in public, conveying his antisemitic views in print and in a local television interview. Ross alleged that the School Board’s decision violated his freedom of expression and religion as protected under ss. 1 and 2 of the Canadian Charter of Rights and Freedoms. The Respondent, the New Brunswick School District No. 15, found Ross’ views to be extreme and to have a negative effect on Jewish students who experienced a “poisoned educational environment”. Further, the Respondents claimed that Ross violated ss. 2 and 13(1) of the Canadian Human Rights Act. The Supreme Court of Canada agreed with the Respondent that his freedom of expression and religion as outlined in ss. 1 and 2 of the Charter were violated by the School Board’s decision, but found that this breach was justifiable.
[v] Op. Cit, Statistics Canada: Police-Reported Hate Crimes in Canada.
[vi] “An Exploration of the Needs of Victims of Hate Crimes,” http://tinyurl.com/yd6pybkj. P.31” Fear of reporting the crime by victims who have come from countries where the police/judiciary cannot be trusted. Similarly, a low reporting rate among victims of hate crimes was identified as a possible consequence of fear, since female victims may be too embarrassed to report the crime, especially if the culture in their country of origin is male-dominated, and the outcome could result in a backlash against the victim from family members.”
[ix] Ibid, Keegstra
[xi] Statistics Canada, Police-Reported Hate crime in Canada, http://www.statcan.gc.ca/pub/85-002-x/2017001/article/14832-eng.htm
[xii] Local police services and provincial human rights commissions will be excellent sources of support. In addition, you may wish to review the websites of the following organizations: Fighting Antisemitism Together (http://tinyurl.com/y9gduz54), Facing History and Ourselves (http://tinyurl.com/yc7nvurt), Friends of Simon Wiesenthal Centre (http://tinyurl.com/y8avzkw8)
[xv] Wikipedia, Saskatchewan (Human Rights Commission) v. Whatcott, http://tinyurl.com/y8mxq3v5
[xvi] Judgements of the Supreme Court of Canada, http://tinyurl.com/y96twz4t
[xvii]National Post: Supreme Court upholds Canada's hate speech laws in case involving anti-gay crusader, http://tinyurl.com/ybbvkpdg