When is it hate speech?: 7 significant Canadian cases

The Supreme Court of Canada upheld some elements against hate speech in Saskatchewan's Human Rights Code while striking down others on Feb. 27 in the latest case to pit free speech against hate propaganda laws — a sometimes blurry line that is a legal, political, ethical and emotional minefield.

Bill Whatcott was charged with promoting hate after he distributed flyers in Regina and Saskatoon in 2001 and 2002 that condemned gay sex as immoral.

He was found guilty by the Saskatchewan Human Rights Tribunal in 2005, but that decision was later appealed and overturned in 2010. The tribunal then appealed to the country's top court.

On Wednesday, a unanimous decision from the Supreme Court found that most of Saskatchewan's human rights code was constitutional. The legislation infringes the right to free speech and religion, but the court found it was a reasonable limit.

The court struck down the part of the legislation that includes speech that "ridicules, belittles or otherwise affronts the dignity" of a person or class of persons. The court found those words are not rationally connected to the objective of protecting people from hate speech.

The court left in place the ban on speech that exposes, or tends to expose, persons or groups to hatred.

Whatcott published and distributed four anti-gay flyers in Saskatchewan that used words like "filth," "propaganda" and "sodomy" to describe gay relationships and discussions of equality.

On Wednesday, the Supreme Court held that the first two flyers, titled "Keep homosexuality out of Saskatoon's public schools" and "Sodomites in our public schools," did constitute hate speech and reinstated the Saskatchewan tribunal's finding, including $7,500 in fines against Whatcott.

The Court upheld an appeal court's decision on the second two flyers — photocopies of classified ads with Whatcott's handwritten comments on them stating the ads were for "men seeking boys" — ruling against the human rights commission.

It found that it was unreasonable to find the second two flyers "contain expression that a reasonable person … would find as exposing or likely to expose persons of same-sex orientation to detestation and vilification."

Whatcott’s is the latest in a string of court challenges that have helped shape Canada’s free speech and hate crime laws, as well as their interpretation by the courts.

Here are several other notable cases that have helped set precedent for how the legal system balances what is considered a hate crime and what constitutes freedom of speech.

Telephone hate

John Ross Taylor, a self-described fascist, was jailed in Ontario in the 1980s for telephone hate messages.

In 1990, the case reached the Supreme Court of Canada, which ruled against Taylor. The majority ruled that although Canada's Human Rights Act restricts freedom of expression, that restriction is justified.

"Parliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom," Chief Justice Brian Dickson stated in the majority opinion.

The minority opinion was written by Beverley McLachlin, now Canada's chief justice. "It is arguable whether criminalization of expression calculated to promote racial hatred is necessary," McLachlin wrote.

James Keegstra

James Keegstra had been teaching anti-Semitism to students in Eckville, Alta., for 14 years when a parent complained to the local school board about his lessons. It was 1982 and Keegstra was also Eckville's mayor.

The story received international attention and Keegstra was charged in 1984 under Canada's hate crime laws. He was convicted, but the decision was overturned on appeal after Keegstra's lawyer argued the law was unconstitutional because it violated Charter provisions on freedom of expression.

The Keegstra case continued to bounce around various courts until a landmark 1996 ruling by the Supreme Court. It said the Criminal Code section on public incitement of hatred did infringe on the Charter — but that infringement was justified — and upheld Keegstra's conviction.

Ernst Zundel

Holocaust denier Ernst Zundel lived in Canada for four decades, making frequent court appearances to argue for the freedom to express his anti-Semitic views in books and pamphlets and on a website.

In 1992, the Supreme Court of Canada overturned his conviction for "spreading false news," saying that the charge violated his Charter right to freedom of expression.

The German-born Zundel, who wrote the introduction to the book Did Six Million Jews Really Die?, was deported to Germany in 2005 after a Federal Court judge ruled he was a threat to national security.

He was freed from a German prison in 2010 after serving five years for denying the Holocaust.

David Ahenakew

David Ahenakew, a once-powerful leader of the Assembly of First Nations, was stripped of his Order of Canada for remarks about Jews in 2002.

During a speech at a gathering of First Nations leaders in Saskatoon, Ahenakew launched into a barely comprehensible diatribe and made anti-Semitic remarks. He repeated those comments to a reporter, and after the news was published, Ahenakew was charged with promoting hatred.

The court proceedings were protracted, but an initial conviction was overturned and, after a second trial, Ahenakew was acquitted. The Saskatchewan chief died in 2010, at 76.

Neo-Nazi custody case

Two children were removed from their Winnipeg home in 2008 after one, a seven-year-old girl, showed up at her elementary school with racist writings and symbols on her skin.

The Manitoba Court of Appeal later refused to allow the girl’s stepfather, who was accused of teaching her and his biological son neo-Nazi beliefs, to appeal a custody order giving the state permanent custody of them.

The court also dismissed a constitutional challenge from the father, who argued the government violated his right to raise the children according to his beliefs.

Cross burning

On Feb. 21, 2010, a wooden cross was set aflame on the front lawn of an interracial couple and their children in Poplar Grove, N.S. Brothers Nathan and Justin Rehberg were convicted of public incitement of hatred, as well as criminal harassment.

Crown attorney Darrell Carmichael praised the conviction as "a really significant decision for our country." He added that, "There has never been an official court decision which states that cross-burning in this context is a hate crime."

Justin Rehberg apologized at his sentencing hearing for what he described as "a horrible mistake."

Hate crimes

The Criminal Code of Canada says a hate crime is committed to intimidate, harm or terrify not only a person, but an entire group of people to which the victim belongs. It applies when the victims are targeted for who they are, not because of anything they have done, and can involve intimidation, harassment, physical force or threat of physical force against a person, a group or a property.

In Canada it’s also a crime to incite hatred. Under Section 318 of the Criminal Code, it is a criminal act to "advocate or promote genocide" — to call for, support, encourage or argue for the killing of members of a group based on colour, race, religion, ethnic origin or sexual orientation.

Section 319 deals with publicly stirring up or inciting hatred against an identifiable group based on colour, race, religion, ethnic origin or sexual orientation. It is illegal to communicate hatred in a public place by telephone, broadcast or through other audio or visual means, but the same section protects people from being charged with a hate crime if their statements are truthful or the expression of a religious opinion.

The mischief section, 430, covers hate-motivated mischief and religious property. It provides for harsher sentences than mischief involving other property. 

Prior to 2003, Canada’s Criminal Code protected people on the basis of race, religion, ethnic origin, colour, gender and disability. On April 29, 2004, the federal government passed Bill C-250 to amend the Criminal Code, adding penalties for inciting hatred against people on the basis of sexual orientation.

'The section of the code on sentencing (718.2) encourages judges to consider whether the crime was motivated by hate of the victim's race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor.

Under Section 13 of the Canadian Human Rights Act it is a "discriminatory practice" to send hate messages via telecommunications equipment, including the internet.