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Canadian Criminal Law/Offences/Public Incitement of Hatred

< Canadian Criminal Law | Offences

Legislation

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Public incitement of hatred
319. (1) 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.

Wilful promotion of hatred
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group 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.

...
Consent
(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.
...
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.


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Interpretation

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Section 319 only concerns the "most intense forms of dislike".[1]

The section does not require proof that the communication caused actual hatred

Section 3(a) was found to violate the presumption of innocence under s.11(d) of the Charter but was upheld as a reasonable limitation.[2]

  1. ↑ Mugasara
  2. ↑ R v Keegstra 1996 1 SCR 458

Definitions

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Definitions
(7) In this section,
...
“communicating” includes communicating by telephone, broadcasting or other audible or visible means;
...
“identifiable group” has the same meaning as in section 318;
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“public place” includes any place to which the public have access as of right or by invitation, express or implied;
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“statements” includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.


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Promotion of Hatred

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The promotion of hatred is a question of fact determined by the judge.[1]

According to Keegstra, "the word ‘promotes’ indicates active support or instigation" as well as "foment or stir up". It "indicates more than simple encouragement or advancement."[2]

To promote hatred, more than mere encouragement is required.[3]

It is not necessary to prove that the communication actually caused hatred.[4]

To determine whether the communication promotes hatred the court must "consider the [communication] objectively but with regard for the circumstances in which the [communication] was given, the manner and tone used, and the persons to whom the message was addressed."[5] The standard is different from the "reasonable observer" standard as it takes into account the nature of the audience itself.[6]

  1. ↑ R. v. Krymowski, 2005 SCC 7 at 18
  2. ↑ R v Keegstra at 776-777
  3. ↑ Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100 at 100-7
  4. ↑ Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100 at 100-7
  5. ↑ Mugesera at 106
  6. ↑ Mugesera at 109

Private Conversation

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The offence under s. 319(2) excludes any communication that is in "private conversation".

This suggests that an "expression of hatred in a place accessible to the public is not sufficient".[1] There needs to be a subjective mens rea, and as a result a "conversation or communication intended to be private does not satisfy the requirements of the provision if through accident or negligence an individual's expression of hatred for an identifiable group is made public."[2]

  1. ↑ Keegstra 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697 at 772
  2. ↑ Keestra 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697 at 773

Mens Rea

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The mens rea of the offence requires "either an intent to promote hatred or knowledge of the substantial certainty of such".[1]

"Wilful" can include wilful blindness.[2]

  1. ↑ R v Keegstra [1990] 3 S.C.R. 697 at 785
    Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100 at 104
  2. ↑ R v Harding 2001 SCJ/ONCA

Defences

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The statutory defences are set out in s.319 (b), which states:

s. 319...
Defences
(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.


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Cases

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  • Publishing False News (s. 181)
  • Advocating Genocide (s.318)
  • Defamation and Libel (s. 297 to 317)
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