Attempts to Legislate Hate Speech Violate Free Expression
- Raine McLeod
- 2 days ago
- 10 min read
I submitted the following as my term paper for my Introduction to Government and Politics course. I got an A on the paper, the final, and in the course overall! In fact, the feedback I got on the essay was, "This is a simply excellent paper. Well written, with above average citation support, and an excellent thesis. Thoughtful. Excellent." Cue my Gifted Kid heart singing a song
Introduction
Under the Canadian Charter of Rights and Freedoms Section 2(b), all people have the right to “freedom of thought, belief, opinion and expression.” It is the responsibility of the government to balance individual rights with the collective good, and no right can be expected to be absolute. Although Section 1 of the Charter itself refers to “reasonable limits” on rights, provided they are “prescribed by law as can be demonstrably justified in a free and democratic society” the problem arises when the rights in question involve a subjective emotion like hatred, especially when the application of the term often relies on the alleged victim’s perspective of what’s being communicated, as in some local bylaws. Due to this subjectivity, hate speech legislation violates the right to free expression as enshrined in the Charter by limiting the ability of the individual to express their thoughts, beliefs, and opinions.
Understanding Hate Speech Legislation in Canada
The Criminal Code of Canada, primarily sections 318 and 319, forms the legal framework governing what constitutes hate speech in the country. Section 318 criminalizes advocating or promoting genocide, which has a clear definition in the Code of “acts committed with the intent to destroy” an identifiable group. Section 319 refers to “public incitement of hatred,” “wilful promotion of hatred,” and “wilful promotion of anti-Semitism” which includes Holocaust denial. These provisions were added to the Criminal Code in 1970 in response to the rise of anti-Semitic and anti-Black sentiment in the 1960s as documented in the report of the Special Committee on Hate Speech Propaganda produced in 1966 by the Cohen Committee. These laws are intended to protect individuals and groups from speech that incites violence or discrimination, however the interpretation and enforcement of these laws can result in government overreach and erosion of fundamental freedoms.
In Alberta, the cities of Calgary and Edmonton have implemented bylaws to combat “harassment” and both bylaws contain language that is either vague and undefined, or reliant on the victim being made “to feel harassed” as in Calgary’s Public Behaviour Bylaw 54M2006. Calgary’s bylaw prohibits “communicating with a person in a manner that could reasonably cause offense or humiliation” and Edmonton defines harassment as “feeling tormented, troubled, worried, plagued, or badgered.” Each of these bylaws impose restrictions on speech on the grounds that someone may be bothered by it. A person’s reasonable objection to a religion’s treatment of women in the case of Islam, or a protest in support of incarcerated women in Canada, even if delivered in ways that do not disrupt public peace or interfere with public movement may be criminalized as “Islamophobic” or “transphobic” depending on who takes offense, regardless of whom or what the speech intends to criticize.
The most recent attempt to legislate hate speech in Canada was in 2024 via Bill C-63, the Online Harms Act, which at first glance appears to be focused on preventing children from being exposed to online pornography but included an amendment to the Criminal Code to both define “hatred” as “the emotion that involves detestation or vilification that is stronger than disdain or dislike” and allow for the reporting of an individual if a person “fears on reasonable grounds that another person will commit (a) an offence under section 318 or any of the subsections 319(1) to (2.1).” This permits the reporting of someone in advance of an offence, and penalties include a fine up to $20,000 paid to a complainant who may remain unidentified to the accused, or $50,000 paid to the Receiver General, and would also amend the Canadian Human Rights Act with the same language. Additionally, a proposed amendment to the Criminal Code would see someone who is convicted of an “offence motivated by hatred” to be imprisoned possibly for life. Prior to being submitted under the Online Harms Act, this legislation was tabled exclusively as stand-alone hate speech bills under Bill C-36 (2021) and Bill C-261 (2022) with identical amendments to the Criminal Code.
The Harm Principle and Potential Justification for Hate Speech Legislation
A primary argument for the regulation of so-called hate speech is based on the harm principle, which offers that speech can and should be limited if it poses a direct harm to others, but not to protect someone from themselves. John Stuart Mill argues in On Liberty “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Proponents of legislation to limit speech claim that speech that is inflammatory, or that incites violence or hatred against a specific group will cause significant harm, both through the psychological impact and any resulting physical violence. The harm principle, in this view, justifies limitations on speech in order to protect both individuals and groups.
However, the harm principle is not immune from criticism. Detractors of hate speech laws argue that not only is “hate” subjective, but so is the concept of “harm.” While it is easy to define objective physical injury as harmful, emotional or psychological harm is inherently subjective and the potential for abuse in enforcement of any law regarding speech is high. What constitutes “harmful speech” is not universal, and the protection of individuals from harm must be balanced against the democratic need for free expression. Restrictions on speech may, either advertently or not, stifle important discussions, limit the exchange of ideas, and suppress the voices of minority groups. Additionally, laws prohibiting physical assault, the incitement of violence, defamation, coercion, uttering threats, stalking, and disturbing the peace already exist and can be justifiably utilized to ensure public safety without infringing on the right to free expression.
The Need for Free Expression as a Cornerstone of Democracy
A fundamental aspect of democracy is the freedom of thought and communication of ideas. It is required not only in order to have an informed public that can and are willing to participate in the democratic process, but also to ensure people in positions of authority are held accountable. A party that does not allow for criticism is tyrannical. When one is not permitted to question one’s government, one is not wholly free. If the state is permitted to control the speech of anyone, the opportunity for abuse of power and implementation of unjust policy is rife. It is through open dialogue and debate that society can identify and address injustice.
There does not exist an institution that does not deserve criticism. Religions, governments, and people in positions of power all deserve to be criticized to maintain checks and balances and the public are the ultimate arbiters of whether that criticism is deserving of response or not. The quality of the criticism is determined by the audience, and it is immoral to demand that the public be deprived of a perspective on the grounds that it may be unsavoury. To prevent or forbid criticism, or to treat an institution or individual as sacrosanct, is to rob individuals of the opportunity to exercise their free will through dissent. Additionally, institutions and individuals deserve the opportunity to respond to, or improve by receiving, criticism of current practices and policies. If a policy is indefensible or does not stand up to scrutiny, it should be abolished.
It is also paternalistic to presume that a public must be protected from hearing upsetting ideas. Citizens must have the agency to engage in the marketplace of ideas in order to ensure their own intellectual development and to enhance their participation in the community. Members of the public who are not given the opportunity to encounter ideas with which they disagree are effectively being indoctrinated and cannot meaningfully participate in democracy; they are being robbed of the chance to learn. Even if censorship is well-intentioned, the progress of society is ultimately being slowed. It is in the best interest of all members that even dissidents be given the opportunity to hear their opinions countered and debated in the public square.
The Impact on Free Expression
Limiting freedom of expression can have a chilling effect on public discourse. The fear of legal repercussions for expressing a controversial view or an unpopular opinion leads individuals to self-censor, ultimately curbing the open exchange of ideas. That self-censorship deprives members of a free society of the opportunity to learn more about their own perspectives through having to defend them, and of the opportunity to change their minds. Mill wrote, “[i]f the cultivation of the understanding consists in one thing more than another, it is surely understanding the grounds of one’s own opinions” and later, “[h]e who knows only his own side of the case, knows little of that.” To suppress speech is to undermine the very essence of democracy, where citizens are expected to freely express their views, particularly in matters of public interest. It can also have the impact of driving groups with controversial opinions underground, where they may become radicalized.
In Canada, a country that values diversity, the multicultural makeup of the population would logically include a wide range of opinions on issues like race, sexuality, and religion. While some of these perspectives may be offensive or despicable to others, the exchange and public discussion of those opinions can lead to a greater understanding between groups. Limiting speech removes the opportunity for dialogue. Additionally, the enforcement of hate speech legislation can result in the prosecution of unpopular or controversial opinions regardless of whether they meet the threshold of incitement to violence.
The Disproportionate Impact on Marginalized Groups
An often-overlooked aspect of hate speech legislation is its disproportionate impact on marginalized and minority groups. Despite claims that hate speech laws are in place to protect both groups and individuals from hate, they can and are used to suppress or silence the voices of those who speak out against oppression or who challenge the status quo. John Stuart Mill highlighted the need to protect citizens from “the tyranny of the majority.” He asserts that, being not of the majority group, minorities “were under necessity of pleading [...] for permission to differ.” The right to free expression allows for protests of policies that a group may view as unfair or unconstitutional. These perspectives may not have been previously considered, or they may have been thought to belong to an inconsequentially small minority, but to develop a society that best tries to achieve the common good, all members must have the ability to express themselves, even if what is being expressed is considered by some to be immoral or offensive.
Legal Challenges to Hate Speech Legislation
One of the most significant cases in Canadian legal history as it relates to freedom of expression is R. v. Zundel (1992). A German-Canadian man, Ernst Zundel, was charged under Section 181 of the Criminal Code of Canada which made it an offense to “spread false news” with the intent to harm a person’s reputation or disturb the public peace. Zundel was known for his denial of the Holocaust, including publishing pamphlets and other material that claimed the Holocaust did not occur. His defense argued that the charge violated his right to free expression under Section 2(b) of the Charter and that criminalizing speech based on its falsity unjustifiably infringed upon that right. Ultimately, the Supreme Court of Canada ruled 4-3 that Section 181 of the Criminal Code itself was unconstitutional, did not meet the “reasonable limits” test, the false news provision was too vague, and that it infringed on the right to freedom of expression. Section 181 was then struck down.
Before R. v. Zundel, R. v. Keegstra (1990) was considered to be the landmark case in Canada that dealt with the balance between freedom of expression and protection against hate speech as it relates to the Charter, and in fact, was referenced in the R. v. Zundel decision. In this decision, the Supreme Court of Canada upheld a conviction for promoting hatred under Section 319(2) of the Criminal Code. James Keegstra had been teaching his students anti-Semitic views including denying the Holocaust and spreading hate speech about Jewish people. Keegstra argued that the charges violated his right to freedom of expression. In its decision, the Supreme Court found 6-3 that the limits placed on Keegstra’s speech were justifiable, and solidified the idea that freedom of expression is not absolute and can be limited to prevent harm. The Court highlighted the need to consider the context of Keegstra’s actions, which were not merely the expression of an opinion, but involved promoting hate in an educational setting, propagating anti-Semitism and potentially influencing his students to adopt discriminatory views.
More recently, there has been growing discussion surrounding hate speech on digital platforms. Legal scholars and activists have debated whether the same protections against hate speech should apply to online content as they do to traditional media. Legislation and increased enforcement have been called for as social media platforms like Facebook, X (previously Twitter), and YouTube became significant venues for “hate speech.” Prior to its repeal in 2013, Section 13 of the Canadian Human Rights Act prohibited hate messages on the internet, and debate continues in legal and political forums about whether and how to reintroduce similar provisions.
Conclusion
While hate speech legislation in Canada appears well-meaning and aims to protect individuals from harm, it violates the right to free expression as enshrined in the Canadian Charter of Rights and Freedoms. These laws undermine the democratic process, stifle open dialogue, and disproportionately impact the voices of marginalized groups. Moreover, the vagueness of the concept of “harm” and the legal definition of “hate,” as well as the potential for overreach in enforcement of hate speech laws damages the broader public discourse. Ultimately, freedom of expression is a cornerstone of democracy and any attempt to limit it may undermine the value it most seeks to protect. An unjustifiable infringement cannot be tolerated in a free and democratic society.
Bibliography
“Bill C-36 .” Legislative Summary of Bill C-36: An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hate speech), September 8, 2021. https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/432C36E.
Canadian Charter of Rights and Freedoms, s. 2(b), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11
Consolidated Federal Laws of Canada, Criminal Code, s. 318(1)
Government Bill (House of Commons) C-63 (44-1) - First Reading - an Act to Enact the Online Harms Act, to Amend the Criminal Code, the Canadian Human Rights Act and an Act Respecting the Mandatory Reporting of Internet Child Pornography by Persons Who Provide an Internet Service and to Make Consequential and Related Amendments to Other Acts - Parliament of Canada. (2024) https://www.parl.ca/DocumentViewer/en/44-1/bill/C-63/first-reading.
William Kaplan, “Maxwell Cohen and the Report of the Special Committee on Hate Propaganda,” essay, in Law, Policy and International Justice : Essays in Honour of Maxwell Cohen, ed. William Kaplan and Donald McRae (McGill-Queen’s University Press, 1993), 243-274.
Legislative Services Branch. “Consolidated Federal Laws of Canada, Criminal Code,” January 1, 2025.
Legislative Services Branch, “Consolidated Federal Laws of Canada, Criminal Code,” ARCHIVED.
Mill, John Stuart, “On Liberty” (1859), essay, in On Liberty, Utilitarianism, and Other Essays, ed. Mark Philip and Frederick Rosen (Oxford University Press, 2015), 5–112.
Supreme Court of Canada. “R. v. Zundel.” R. V. Zundel - SCC cases, August 27, 1992. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/904/index.do.
Supreme Court of Canada. “R. v. Keegstra.” R. V. Keegstra - SCC cases, December 13, 1990. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/695/index.do.
The City of Calgary, “Street Harassment,” https://www.calgary.ca, accessed March 13, 2025. https://www.calgary.ca/bylaws/street-harassment.html
The City of Edmonton. (n.d.). Edmonton. Public Spaces Bylaw 20700. https://www.edmonton.ca/sites/default/files/public-files/BL20700.pdf?cb=1740533073
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