Freedom of expression is central to a healthy democracy. Accordingly, although racist and hateful comments are offensive to the vast majority of Canadians, they are not necessarily illegal.
The following section surveys the federal laws that prohibit some forms of hate speech.
Criminal Code of Canada
Sections 318 and 319 of the Criminal Code make it a criminal offence to:
advocate genocide
publicly incite hatred
wilfully promote hatred against an "identifiable group."
An identifiable group is defined as any section of the public distinguished by:
colour
race
religion
ethnic origin
Hatred directed against others groups (such as women, or gays and lesbians) is not punishable under sections 318 and 319.
The Criminal Code provisions are intended to prohibit the public distribution of hate propaganda. Private speech is not covered by the provisions.
For example, "advocating genocide" includes publicly arguing that members of an identifiable group should be killed. Wilfully promoting hatred can only be committed by communicating statements other than in a private conversation. And inciting hatred is only prohibited if statements are communicated in a public place.
Online communications that advocate genocide or wilfully promote or incite hatred are likely to fall within the provisions because the Internet is a public network.
Under section 320.1 of the Criminal Code, a judge has the authority to order the removal of hate propaganda from a computer system that is available to the public. Such authority extends to all computer systems located within Canada.
Canadian Charter of Rights and Freedoms
Section 2 of the Canadian Charter of Rights and Freedoms guarantees freedom of thought, belief, opinion and expression to all Canadians. However, all Charter rights are subject to reasonable limits that can be demonstrably justified in a free and democratic society.
In 1990, the Supreme Court of Canada considered whether or not section 319(2) of the Criminal Code (the crime of wilfully promoting hatred) violates our constitutional rig