What counts as a 'hate crime' in Canada?

Some Canadians are asking why police seem slow to label recent offensive acts targeting Jews and Muslims as “hate crimes,” but one expert explains that the issue is complicated because there is no definition of a "hate crime" in the Criminal Code.

Lawyer Mark Freiman, who served as Ontario’s deputy attorney general and once prosecuted a case against Holocaust-denier Ernst Zundel, says that what many people refer to as “hate crimes” are cases where judges have taken a guilty person’s hateful motivations into account during sentencing.

The Criminal Code includes guidance that says sentences shall take into account evidence “that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.”

While some people choose to call that a “hate crime” after the fact, “hate crime” is not an offence that police can charge a person with. A person accused of drawing swastikas may be charged with mischief, and then it’s up to the judge to decide whether to impose a longer sentence if she or he believes the crime of mischief was motived by hate.

Complicating things further, police may or may not record that incident as a “hate crime” in their statistics, depending on their own policies, which vary across the country. The federal Department of Justice has noted this “problem of definition.”

At the same time, there are three specific sections of the Criminal Code which some people refer to as “hate crimes,” but this is a narrow set of extraordinarily hateful acts. These sections are rarely used:

Freiman says he knows of no convictions under Section 318.

Convictions under 319 are also rare, although there are some famous examples, including the 1985 conviction of Holocaust denier and teacher Jim Keegstra. His conviction was overturned by an Alberta appeals court but restored by the Supreme Court of Canada in 1990.

The Keegstra case was important, according to Freiman, because it allowed to the Supreme Court to “articulate the difference between dangerous speech, which is crime, and offensive speech, which we have to tolerate even if we don’t like it.”

In other words, it balances dangerous speech with freedom of speech or political speech, Freiman says.

As a result, holding up a sign outside of a mosque calling for a ban on Muslim immigration would “probably not qualify” as public incitement of hate, Freiman said. Neither would a single racial epithet yelled at a person walking down the street.

For speech to qualify as inciting hate involves “portraying the subject of one’s speech as being devoid of any positive qualities, demonization, dehumanization,” according to Freiman.

Both 318 and 319 also have a veto attached to them known as “consent,” which means the attorney general’s approval is required before a prosecution can even begin. That consent is used to determine if the prosecution is in the public interest, according to Freiman.

Another source of confusion, Freiman says, is are provincial human rights codes where hateful acts may constitute offences in regulated workplaces, for example, but are not considered crimes.