Photo by Hermes Rivera on Unsplash
Logan Kline, Associate Member, University of Cincinnati Law Review
Part Two of a Two-part series comparing the American and Canadian systems of regulating hate speech.
I. Introduction
The Canadian-American border serves as a dividing line between two very different approaches to the regulation of speech. To the south, the American First Amendment serves as a bastion of free speech, with relatively little regulation beyond a few practical safeguards against imminent violence.[1] In contrast, to the north, Canadian law takes a more regulatory approach, recognizing the value in freedom of expression but also striving to regulate speech that can give rise to oppression, discrimination, and even more insidious atrocities. From 1970 through today, Canadian law has taken an interventionist approach to regulating hate speech, with the ultimate goal of cultivating a more hospitable community and public discourse, especially for those who have been historically the target of discriminatory action.
The regulation of speech, specifically hate speech, is an emotionally charged and strongly provocative discussion. In light of the ambient public discourse, clarification of the scope of this article is crucial. First and foremost, hate speech and its progeny are abhorrent and an affront to civility. This is not in any capacity a defense of hate; it is a study of two contrasting approaches in fighting it, paired with an analysis of the effectiveness of each. As the second in a two-part article series, this article provides the Canadian approach in light of the previously described American system. Ultimately, the argument is not for the Canadian or American model, but instead it is against the common modern sentiment that positions one as a straw man to be effortlessly tossed aside. Both sides have valid perspectives. The goal of this series is to steel man each argument against the other and argue that each is valid within its own legal system and premise of speech.
II. What Is Hate Speech?
Before diving into an analysis of the regulation of hate speech across Northern America, it is important to define the term. Under Section 319(1) of the Canadian Criminal Code, hate speech is defined as follows: “everyone who, by communicating statements in a public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of an indictable offence punishable by up to two years’ imprisonment, or of a summary conviction offence.”[2] The object of such hate speech under this definition must be an “identifiable group,” which is defined in the Canadian Criminal Code Section 318(4) as “any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation, gender identity or expression, or mental or physical disability.”[3]
III. The Canadian Approach
In Canada, freedom of expression is protected by Section 2(b) of the Canadian Charter of Rights and Freedoms, which includes expression as a “fundamental freedom.”[4] The Charter provides that all people have fundamental freedoms of “thought, belief, opinion, and expression, including freedom of the press and other media of communication.”[5] The stated purpose of Section 2(b) is to promote the “search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression.”[6] The Supreme Court of Canada has emphasized that freedom of expression serves as the binding element of the fundamental protections asserted in Section 2(b).[7]
In many ways, Canadian law mirrors American law with respect to regulation of the majority of speech. Like in the United States, Canadian courts have ruled that the Canadian Charter protects neither expression in the form of violence nor threats of violence.[8] Further, various levels and locations of speech are afforded higher protections, with public speech holding a particularly high position in the hierarchy of protected speech.[9] However, unlike the United States, the Canadian Supreme Court has held that hate speech with the purpose of preventing the free exercise of another group’s rights is impermissible under federal law.[10]
In response to the rise of white-supremacist and neo-Nazi groups in the 1960s, the Canadian government enacted its first federal provisions restricting hate propaganda as part of the Criminal Code in 1970. Today, the primary provisions that restrict hate speech in the Criminal Code are Sections 318, 319, and 320, which prohibit hate propaganda and “impose criminal sanctions against anyone who willfully promotes genocide or incites hatred in public.”[11] These provisions also provide the aforementioned definitions of hate speech under Canadian law and have developed and grown at pace with the social conscience over the years to afford protection to more groups. For example, the original protection afforded in 1970 was limited to “colour, race, religion or ethnic origin” but has since expanded, with the latest addition of “gender identity and expression” coming in 2017.[12]
The R. v. Keegstra, [1990] 3 S.C.R. 697 decision stands as the Canadian Supreme Court’s most influential case regarding hate propaganda provisions in the Criminal Code.[13] The 1990 case involved a school teacher who was charged for communicating anti-Semitic statements to the class and was prosecuted under Section 319(2) of the Criminal Code.[14] Ultimately, the Canadian Supreme Court was asked to determine whether such limitations on hate speech were permissible under Canadian law.[15] By a narrow margin of four votes to three, the Court held that this provision was constitutional in limiting hate speech. Delivering the opinion for the Court, Chief Justice Dickson wrote that the criminal laws against hate speech were warranted because “[p]arliament’s objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred.”[16] Chief Justice Dickson also noted that the response of Parliament to the rising tide of hate groups in North America was proportional to the issue at hand and minimally interfered with legitimate freedom of expression.[17] In her dissent, Justice McLachlin disagreed with the Chief Justice, arguing that the term “hate” was overly broad, and could encompass statements that were “non-nefarious” thus causing a “chilling effect on legitimate activities.”[18]
The Criminal Code upheld as constitutional by Keegstra and other Canadian court rulings restricts a variety of expression classified as hate speech against an identifiable group.[19]Section 319(1) of the Criminal Code provides the punitive element of the hate speech regulation, stating that:
Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.[20]
Section 319(2) asserts the same punishment for any person who communicates statements, other than in private, that willfully promote hatred against one of the identifiable groups listed in Section 318(4).[21] As a result, anyone who publicly promotes hate against a person based on “colour, race, religion, ethnic origin or sexual orientation, gender identity or expression, or mental or physical disability” is subject to up to two years in prison by federal statute.[22] These laws, along with others, make up the prohibition on hate speech under Canadian law, creating a clear differentiation from the law of the United States.[23]
IV. Strengths and Weaknesses of the Canadian Approach
The primary benefits of the Canadian approach are clear and obvious: hate and bigotry are driven from open, public discourse by force of law. The desired effect is a more hospitable forum for discussion without fear of open hostility based on a person’s identifiable group. Perhaps more importantly, as noted by Chief Justice Dickson in Keegstra, regulation of hate speech helps the nation avoid the atrocities that history shows spring from hate speech.[24] Unlike the American system, a person does not have to wait to actually be physically threatened by insidious language and expression in order to garner the protection of the law.[25] Instead, Canada’s approach provides citizens recourse before the hateful expression has reached the point of physically endangering them. This serves not only to prevent the hate speech, but also works toward stopping the speech from escalating to hateful acts of aggression that Chief Justice Dickson alludes to in Keegstra.[26]
Writing for the Wake Forest Law Review, Professor Kathleen Mahoney, a professor of law at the University of Calgary, wrote on the escalation that arises from hate speech:
The hate speech moves from promoting hatred against individuals who are members of certain groups in a certain place to singling out these groups for differential and discriminatory treatment everywhere. In its most virulent form, it singles out certain groups for existential or genocidal assault.
An example of the universal scope of hatred is the increasing, generalized stereotyping and scapegoating of foreigners in all countries—be they migrants, refugees, or illegal aliens. Amongst extremists, there is an increased willingness to use violence against them.[27]
In this, Professor Mahoney outlined the immense stakes of the decision of whether or not to regulate hate speech.[28] Similar to the assertion of Chief Justice Dickson in Keegstra, Professor Mahoney described the risks of allowing hate speech far outweighing any minimal rewards that could come from allowing it to remain.[29] Further, Professor Mahoney argued that a restriction on hate speech helps to foster a coexistence of rights that encourages respect and free expression.[30] According to Mahoney, “When seen from this perspective, restrictions on hate speech, rather than infringing on the speech rights, actually facilitate free speech by protecting voices and by decontaminating social discourse infused with blatant and harmful untruths.”[31] Therefore, the public forum would actually be liberated by removing hate speech, rather than encumbered.[32]
In recent years, no one has served as a more vocal and public opponent to speech regulation in Canada than Dr. Jordan B. Peterson, a clinical psychologist, tenured professor of psychology at the University of Toronto, and public intellectual of immense popularity. In a 2017 interview, Dr. Peterson spoke on the problem of what is lost if free speech is restricted and otherwise stymied:
Free speech has become an ideological issue… The collective is a group of what’s already known, by definition. We inhabit the collective, and that’s what’s already known, what we can agree on. But the problem with that is what we can agree on, what’s already known, isn’t sufficient. We still have problems. So people have to be out at the fringes, on the border between chaos and order, where they discover new things and communicate it back to the collective, and free speech does that. That’s the mechanism.[33]
In this way, Dr. Peterson described the process of societal improvement and innovation as a perpetual pushing of the limits of what is acceptable by the cultural norms in order to come to the best ideas.[34] In the same interview, Dr. Bret Weinstein, an evolutionary theorist and biology professor at Evergreen State College, expressed the same sentiment in asserting that “[e]very great idea starts with a minority of one.”[35] Dr.Weinstein noted that free speech also can be seen as an important mechanism from an evolutionary biological perspective.[36] The people who benefit most from the status quo are the most likely to be in the center of society, and therefore they have little motivation to alter the self-serving systems.[37] Instead, those on the fringe for whom society is not currently working benefit most from free speech, as it affords them a mechanism to create change through experimental ideas.[38] By nature, these ideas will be disruptive to the majority in power and, if labeled as hate speech, could be smothered before being given the chance to better the society.[39]
Dr. Peterson acknowledged that this argument relies, at least in part, on the development of the individual.[40] That said, he offered a path outside of the binary ideological warfare that currently plagues public discourse in both Canada and the United States. He asserted that this path can be pursued through “the development of individual character so that you can say what it is that you think, that you can articulate your experience properly, and that you can bring what it is that is unique to you into the collective landscape. And that’s what updates the collective landscape.”[41] The update of the collective, according to Dr. Peterson, serves to move society forward and intellectually innovate.[42]
In Keegstra, Chief Justice Dickson seemed to anticipate such arguments, as he asserted that hate speech contributes little to 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.”[43] In this way, the Chief Justice rejected the notion that what has been qualified as hate speech under Canadian law could contribute in a positive way to the collective intellectual landscape described by Dr. Peterson and Dr. Weinstein.[44] However, critics such as Justice McLachlin in the dissent of Keegstra caution the majority against the unanticipated effect this legislation could have on constructive discussion.[45] While Justice McLachlin may have found herself in the minority in the Keegstra decision, her perspective is supported by a number of public intellectuals today, with Dr. Peterson and Dr. Weinstein serving as two of the most vocal and well-known proponents.
V. Canadian Hate Speech by the Numbers
While the Canadian model has been heralded by some in the United States as a preferable approach to regulating hate speech, the statistics tell an unclear and mixed story. According to StatCan, the Canadian agency that performs the census and other vital data collection services, the hate crime incident rate over the past five years (2014-2019) creates a murky picture without a clear explanation.[46] From 2014 through 2016, the number of hate crimes steadily grew at approximately the same rate (.1 per 100,000 members of the population).[47] The subsequent jump from 2016 to 2017 from 3.9 incidents reported per 100,000 population to 5.7 represents an increase eight times larger than any of the previous three years.[48] This makes some sense, as it coincides with the year the Criminal Code was amended to include gender identity and expression bringing both more public attention to the crime and more avenues of recovery. While the 2018 rate of 4.9 represented a sizable dip from the previous year, 2019 recorded another large jump to 5.3 hate crimes reported per 100,000 population.[49] Fittingly, the interpretation of this data, like the rest of the argument at large, can be interpreted to support or indict the Canadian approach to hate speech regulation.
On one hand, the numbers represent only the reported cases, so the legislation could be serving to bring more hate crime into the light of the justice system, providing recourse for those targeted by hateful acts. In this scenario, the number of reported hate crimes would rise each year as it approached the actual number of total hate crimes (both reported and unreported). In short, the crimes were already happening before the statute gave victims a remedy, and the rise in reporting is a function of this reality. If this is the case, then the regulation of speech is bringing a net positive as the harbinger of justice for those who would otherwise be deprived it.
On the other hand, the rise in hate crime reports during the times where the statute remained the same could indicate that the statute gives another tool to a litigious society but does not actually dissuade the hate crimes themselves. Ultimately, if the statutes are not serving to protect the population from hate crimes and instead are just serving as a tool for recovery after the fact, then one of the strongest arguments in favor of the Canadian approach is moot. In that case, the regulation is not making the discourse less discriminatory or oppressive, but is just providing a cause of action against the discrimination that exists. If this is true, then it affects the balancing of the risk of potentially silencing productive speech and the necessity to maintain a civil and nondiscriminatory discourse. If the statute does little to improve the latter but has significant potential to harm the former, then the risk of such legislation outweighs the reward.
VI. Conclusion
Despite the animated debate over whether Canada’s regulatory approach is the best means of eliminating hateful expression from society, thousands of Canadians have recovered under Canada’s hate speech laws.[50] While those in favor of the American method may view Canada’s speech regulation as oppressive, the Canadian legislature implemented not only the initial law in 1970 but also has subsequently expanded hate speech legislation with the imprimatur of the Canadian public. Ultimately, each side of the debate has merit and is supported by some of the brightest thinkers alive today. Therefore, the only truly wrong answer to this debate is one that attempts to silence or otherwise cheaply discredit the other, because the issues are too important to be looked at with only a fraction of the possible solutions available.
[1] U.S. Const. amend. I. (For a more in depth and nuanced analysis of the United States’ approach to freedom of speech, see the first part of this series entitled You Don’t Say: American First Amendment Protection of Hate Speech.)
[2] Criminal Code, R.S.C. 1970, c C-46 s 319(1).
[3] Criminal Code, R.S.C. 2017, c C-46 s 318(4).
[4] The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, c 11, (Can.).
[5] Id.
[6] Section 2(b) – Freedom of Expression, Canadian Department of Justice, (last visited Nov. 8, 2020) https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2b.html; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 976; Ford v. Quebec, [1988] 2 S.C.R. 712 at 765-766.
[7] R. v. Keegstra, [1990] 3 S.C.R. 697; Thomson Newspapers Co. v. Canada (A.G.), [1998] 1 S.C.R. 877; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827.
[8] Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at pages 969-70 (Charter does not protect expression as violence); Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraphs 107-108; R v Khawaja, 2012 SCC 69 at paragraph 70 (Threats of violence are not protected under the Charter).
[9] Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2; Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141.
[10] Julian Walker, Hate Speech and Freedom of Expression: Legal Boundaries in Canada, Legal and Social Affairs Division of the Library of Parliament (last visited Nov. 8, 2020) https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201825E#:~:text=Under%20section%20319(1)%2C,of%20a%20summary%20conviction%20offence.
[11] Id.
[12] Criminal Code, R.S.C. 1970, s 318(4); Criminal Code, R.S.C. 2017, s 318(4).
[13] Walker, supra note 10.
[14] Id.
[15] Id.
[16] R. v. Keegstra, [1990] 3 S.C.R. 697.
[17] Id.
[18] R. v. Keegstra, [1990] 3 S.C.R. 697 (MCLACHLIN J., dissenting).
[19] Criminal Code, R.S.C., 1985, c C-46.
[20] Id. at s 319(1).
[21] Id. at s 319(2).
[22] Id. at s 319(2); Id. at s 318(4).
[23] Criminal Code, R.S.C., 1985, c C-46. (Not every hate propaganda statute has been detailed in this section. For example, Section 318(1) states that anyone who advocates or promotes genocide is subject to a five-year prison sentence.).
[24] Keegstra, supra note 7.
[25] Watts v. United States, 394 U. S. 705, 708 (1969) (“True threats” are banned under the First Amendment to the United States Constitution, which otherwise protects freedom of expression).
[26] Keegstra, supra note 7.
[27] Kathleen Mahoney, Hate Speech, Equality, and the State of Canadian Law, 44 Wake Forest L. Rev., 321, 321-322 (2014).
[28] Id.
[29] Id.
[30] Id. at 349.
[31] Id.
[32] Id.
[33] Interview by Joe Rogan with Dr. Jordan Peterson and Dr. Bret Weinstein, The Joe Rogan Experience Podcast, (Sept. 1, 2017) https://www.youtube.com/watch?v=6G59zsjM2UI&t=3342s.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] R. v. Keegstra, [1990] 3 S.C.R. 697. (Chief Justice Dickson wrote this opinion in 1990 at a time when the statute in question contained less categories of identifiable groups to be protected, so some variables have potentially changed in the analysis.).
[44] Id.
[45] R. v. Keegstra, [1990] 3 S.C.R. 697 (MCLACHLIN J., dissenting).
[46] Police-reported Hate Crime, Number of Incidents and Rate per 100,000 Population, Census Metropolitan Areas, Statistics Canada, (last visited Dec. 18, 2020) https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510019101&cubeTimeFrame.startYear=2014&cubeTimeFrame.endYear=2019&referencePeriods=20140101%2C20190101.
[47] Id. (Number of Reported Hate Crime Incidents per 100,000 population: 3.7 in 2014, 3.8 in 2015, and 3.9 in 2016).
[48] Id. (An increase of 0.8 compared to 0.1 the previous three years.).
[49] Id.
[50] Id.
