"Hate" is defined as a crime under two parts of Canada’s Criminal Code: sections 318 and 319. To convict anyone under the Code, very specific proof is required: both of the criminal act itself, and of the intention or motivation to commit the crime. It isn’t enough that someone has said something hateful or untrue; the courts will only find someone guilty if they contravened the Code exactly, and if they did it deliberately.

In most cases, hate propaganda communicated through the Internet is an offence under the Criminal Code. Amendments to the Code, made under the Anti-Terrorism Act in December 2001, further clarify measures and offences regarding Internet hate crimes.

Section 318: Advocating Genocide

The criminal act of "advocating genocide" is defined as supporting or arguing for the killing of members of an "identifiable group" — persons distinguished by their colour, race, religion, ethnic origin or sexual orientation. The intention or motivation would be the destruction of members of the targeted group. Any person who promotes genocide is guilty of an indictable offence, and liable to imprisonment for a term not exceeding five years.

Defining Genocide

Section 318 defines genocide as any acts committed with intent to destroy an identifiable group —such as killing members of the group, or deliberately inflicting conditions of life calculated to bring about the group’s physical destruction.

Section 319(1): Public Incitement of Hatred

The crime of "publicly inciting hatred" has four main elements. To contravene the Code, a person must:

• communicate statements,
• in a public place,
• incite hatred against an identifiable group,
• in such a way that there will likely be a breach of the peace.

Under section 319, "communicating" includes communicating by telephone, broadcasting or other audible or visible means; a "public place" is one to which the public has access by right or invitation, express or implied; and "statements" means words (spoken, written or recorded), gestures, and signs or other visible representations.

All the above elements must be proven for a court to find an accused guilty of either:

• an indictable offence, for which the punishment is imprisonment for a term not exceeding two years; or
• an offence punishable on summary conviction.

Section 319(2) defines the additional offence of communicating statements, other than in private conversation, that wilfully promote hatred against an identifiable group.

Section 319(3) identifies acceptable defences. Indicates that no person shall be convicted of an offence if the statements in question:

• are established to be true
• were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds it was believed to be true
• were expressed in good faith, it was attempted to establish by argument and opinion on a religious subject
• were expressed in good faith, it was intended to point out, for the purpose of removal, matters tending to produce feelings of hatred toward an identifiable group in Canada

Warrants of Seizure

Section 320 of the Criminal Code provides for the seizure and forfeiture of physical hate propaganda material kept on any premises for distribution or sale.

Section 320.1 added under the Anti-Terrorism bill in 2001, allows the courts to order publicly available hate propaganda to be deleted from computer systems, such as a Web site. The individuals responsible for posting the offensive material are given the opportunity to convince the court that it does not constitute hate propaganda. This provision applies to any hate propaganda located on a Canadian computer system, regardless where the owner of the material is located.

Additional Hate Provisions

The courts may define the motivations of hate, bias or prejudice as aggravating factors when sentencing an offender for other offences, such as assault, damage to property, threatening, or harassment. The result is usually a more severe punishment (section 718.2(a)(i)).

Full Text: Criminal Code