Hate Crimes

What is a Hate Crime in Canada?

There are three main “hate crime” offences in the Criminal Code:

• Advocating genocide

Every person who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.

• Public incitement of hatred

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

• an indictable offence and is liable to imprisonment for a term not exceeding two years; or
• an offence punishable on summary conviction.
• Wilful promotion of hatred

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

• an indictable offence and is liable to imprisonment for a term not exceeding two years; or
• an offence punishable on summary conviction.

Here is how the Criminal Code defines key terms in those sections:

• “Communicating” includes communicating by telephone, broadcasting or other audible or visible means;
• “Genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,
  • killing members of the group; or
  • deliberately inflicting on the group conditions of life calculated to bring about its physical destruction;
• “Identifiable Group” means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability;
• “Public Place” includes any place to which the public have access as of right or by invitation, express or implied; and
• “Statements” includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.

How do we defend your Hate Crime case?

As you can see, there are a number of important elements in these offences. In defending a charge of “advocating genocide”, we will assist the court in answering a number of questions, some of which include:

• Did your actions meet the criteria for what would amount to having “advocated” or “promoted”?
• Was the action with respect to an “Identifiable Group”?
• Was there an intent to destroy such a group (or part thereof)?
• If there was such an intent, was that destruction through killing members of the group or causing conditions that would physically destroy the group?

In defending a charge of “public incitement of hatred”, we will assist the court in answering a number of questions, some of which include:

• Did any actions amount to “communicating”?
• Did the communication occur in a “public place” or, instead, in a location where the public does not have access?
• Did the communication, in result, incite hatred?
• Was that hatred against an “Identifiable Group”?
• Was that incitement likely to lead to a breach of the peace?

In defending a charge of “wilful promotion of hatred”, we will assist the court in answering a number of questions, some of which include:

• Did any actions amount to communicating?
• Did the communication occur in private conversation?
• Was there promotion?
• Was it hatred that was being promoted?
• Was the promotion wilful?
• Was that hatred against an “Identifiable Group”?

There are four statutory defences to a charge of wilfully promoting hatred:

• if we can prove that the statements you communicated were true;
• if, in good faith, you 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;
• 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 you believed them to be true; or
• if, in good faith, you intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

Previous court decisions contain some important findings as to what will amount to “hate”:

• “The danger that a trier will improperly infer hatred from statements he or she personally finds offensive cannot be dismissed lightly”.
• There is a “need to avoid finding that the accused intended to promote hatred merely because the expression is distasteful.”
• “‘Promotes’ indicates active support or instigation. Indeed, the French version of the offence uses the verb ‘fomenter,’ which in English means to foment or stir up. In ‘promotes’ we thus have a word that indicates more than simple encouragement or advancement.”
• “The intention of promoting hatred … does not include recklessness.”

If you or someone you know is facing a hate crime charge, contact Andre Ouellette, Mike C. Gilchrist, Peter Hoare & Sadaf Raja as soon as possible. Few lawyers have handled these types of offences. Ouellette Hoare Claxton An Association of Independent Law Practices has experience with these very rare charges and offers criminal defence services for these charges throughout Canada. Our lawyers can be reached 24 hours a day by phone at 587-355-8889.