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Hate Crimes in Canada

Hate crimes can be a tricky legal topic to navigate. As such, it is recommended to consult a lawyer in any case, whether you are the victim of a hate crime or being accused of committing a hate crime. Generally speaking, a hate crime is a situation in which someone is targeted based on their belonging to a specific protected group.

It is a fundamental human right for people to live free from discrimination. Everyone should be able to walk down a street, enjoy leisurely activities such as shopping, follow a religion, and go to work without fearing repercussions simply because of their religion, race, and so on. The consequences can range from social isolation and ostracization to violence that results in the loss of life.

Whether you are a victim to a hate crime or are witnessing a hate crime, there are many resources for you to contact and seek help. Aside from your local emergency number and non-emergency police hotline, you can submit tips to Crime Stoppers online.

What is a Hate Crime?

A hate crime is an offence motivated by hate or bias. A clear indication of a hate crime is when an individual is targeted based on attributes such as race, national or ethnic background, language, colour of one’s skin, religious beliefs, sex, gender, age, mental or physical disability, sexual orientation, or any other similar characteristic.

What Section is Hate Crime in the Criminal Code?

While there is no section for hate crime specifically in the Code, there are four provisions that are instances of hate crimes. Section 318 – Advocating Genocide. Section 319 (1) – Public Incitement of Hatred. Section 319 (2) – Wilful Promotion of Hatred. Section 430 (4.1) – Mischief Relating to Religious Property.

What elements need to be met in order for an action to constitute a hate crime?

The first element is that there must have been a criminal offence (such as an assault, property damage, making threats, etc.).

For a criminal offence to be committed, the source of hate or bias stems from: the victim’s race, nationality, ethnic origin, language, colour, religion, sex, age, mental or physical handicap, sexual orientation, or any other factor.

Intentional destruction of property, inappropriate or otherwise disrespectful graffiti, assaults, criminal harassment, and threats of harm or death are examples of crimes.

If hate speech is directed towards a specific group and intentionally incites hatred, violence, or ostracization against them, it may also qualify as hate-motivated crime when it appears on social media, in posters, or in other written materials.

What is Hate Speech?

While everyone has the right to freedom of opinion and expression, many jurisdictions prohibit or otherwise limit particular kinds of communication, such as speech that incites violence or hatred.

People who support unlimited free speech to cultivate a kind of environment where ideas are free-flowing and people can openly exchange ideas. Being able to have open discussions on certain important topics is important.

On the other hand, some people claim that having certain reasonable limits on free speech is highly important in order to protect particular minority groups from the negative consequences that might flow from unlimited free speech, including ostracization and fear of violence.

In Canada, freedom of speech under section 2(b) of the Canadian Charter of Rights and Freedoms is limited by a number of regulations. For example, the Criminal Code prohibits libel, counselling someone to commit suicide, perjury, and fraud.

The SCC categorized offences related to speech or expression into several categories: offences against the public order, offences related to falsehood, offences against the person and reputation, offences against the administration of law and justice, and offences related to public morals and disorderly conduct.

The Ontario Human Rights Commission (also called the “Commission”) works alongside other kinds of organizations to collectively tackle the issue of hate speech. They also work with public institutions, individuals, and groups to show them how to apply the human rights framework in a matter than enables them to prevent hate crimes.

The Commission’s goal is to garner public awareness about the kinds of negative impacts that hate speech can have on individuals’ right to live without discrimination. Its primary goal is to cultivate a safe environment of mutual respect and understanding, ensuring everyone feels welcome and comfortable in society. As such, hate speech can have adverse consequences on people’s well-being, or even their productivity as a member in society.

Hate crimes against individuals and organizations in Ontario have risen recently, with the most common grounds being colour, ethnicity, race, creed, gender, and sexual orientation.

How Criminal Charges can be Resolved in Canada

Donich Law - Assault Punishments

How is Hate Speech Defined Specifically?

According to Ontario’s Human Rights Code (OHRC), hate speech involves using strong language or other forms of communication that express hatred for or ostracize an individual or group based on protected grounds such as colour, ethnicity, place of origin, race, creed, gender, or sexual orientation. Hatred can stem from a number of grounds such as misogyny, sexism homophobia, transphobia, antisemitism, Islamophobia, and anti-Black, anti-Asian, and anti-Indigenous racism.

Does hate speech fall under the purview of the Ontario Human Rights Code?

Hate speech is neither expressly forbidden under the OHRC nor covered by it. Nonetheless, as a type of discriminatory behaviour, hate speech is subject to reasonable restrictions under the Code. In contracts, housing, services, employment, and vocational organizations, for instance, harassment (unwelcome, vexatious statements or actions) and other forms of discrimination that negatively influence people are prohibited.

Extreme speech may violate the Criminal Code of Canada, which prohibits inciting/encouraging genocide and deliberately inciting or promoting hatred against identifiable groups.

Communication that merely expresses dislike or scorn, such as unpopular/controversial opinions may not be considered hate speech under the Criminal Code. However, in some cases it could still be deemed discriminatory under Ontario’s Human Rights Code depending on the specific context.

Consequences of a Criminal Record

Does the OHRC apply to hate speech expressed online, such as cyberbullying?

The OHRC might be applicable to hate speech expressed online, such as cyberbullying and cyberhate, particularly when it affects individuals in social areas like work, housing, or services. However, if hate speech occurs outside these areas, such as in public spaces or on social media without any direct link to employment, housing, or services, the Code might not necessarily apply. Because of how complex these situations can be, it is important to consult experienced counsel to obtain legal advice on how to navigate these kinds of situations.

What steps should organizations take to combat hate speech that is discriminatory?

Organizations are obligated to take the required steps to combat discriminatory hate speech. Ontario’s human rights law mandates that employers, housing providers, schools, and other service providers ensure their environments are free from discrimination and harassment, including hate speech. This involves steps like setting up policies banning discriminatory actions and setting out the associated penalties for violating the policies, implementing complaint systems, education, and training to prevent and address such issues.

If someone is the object of hateful discrimination, what can they do about it?

If someone experiences discriminatory hate speech in employment, school, housing, or other services, they are encouraged to report it to an authority figure within the organization such as their boss, supervisor, or human resources department. They might also want to seek support from the Human Rights Legal Support Centre or file a discrimination complaint with the Ontario Human Rights Tribunal. For more extreme hate incidents, contacting the authorities might be an advisable option through one’s emergency hotline or non-emergency police hotline, depending on the severity and urgency of the hate crime in question.

How is hate speech being addressed by the Commission?

The Commission collaborates with other organizations to address the rise in hate crimes reported since the pandemic’s start. The Commission’s goal is to ensure public institutions are better equipped to respond to acts of hate using the human rights framework. The Commission often reminds the public of the harm and damage caused by hate speech and emphasizes the importance of mutual respect and understanding in society.

The OHRC has played a key role in addressing anti-Asian hate and hate rhetoric that resulted from the COVID-19 pandemic. They brought awareness to the rising incidence of “brazen hate, extremism, and brutality” that is attributed to Xenophobia exacerbated by the pandemic. This rise in hate allowed people to act out more covertly and show their underlying bigotry. They reminded the public that hate crimes should not be interwoven or normalized within our society.

The OHRC has issued public declarations against antisemitism and Islamophobia, and addressing hate crimes at the York Regional Police Annual Hate Crimes Conference.

In 2021, the OHRC issued a public statement condemning Islamophobia, particularly after the hate-motivated incident in London, Ontario where a male driver struck a family of four who were walking down the sidewalk, simply because of their creed/religion.

The OHRC has also publicly condemned hate-related incidents like the February 2023 vandalism of a temple that was motivated by hate toward the religion and those who practice said religion. Ultimately, tackling the issue of hate crime requires an interdisciplinary approach from multiple public sector areas, the government, and civil society organizations.

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Recent Cases

Law Society of Ontario v. O.H., 2024 ONLSTH 27

In the case of Law Society of Ontario v. O.H., O. H. faced several allegations of professional misconduct. The Law Society of Ontario (LSO) brought forth an application to determine whether O. H. had violated the Law Society Act by engaging in professional misconduct and/or conduct unbecoming an applicant to the Law Society.

The allegation against O. H. involved discriminatory, racist, misogynistic, and distasteful posts on social media and his firm’s website.

These comments were directed towards and visible to members of the public, the LSO, complainants to the LSO, members of the judiciary, other licensees, and the Canadian legal system. The LSO stated that these actions ran contrary to numerous rules of professional conduct.

Furthermore, O.H. tried to impede the LSO’s investigation by threatening litigation against the LSO and the complainants. He also failed to cooperate with the LSO’s investigation. He refused to participate in an interview regarding five LSO investigations, contrary to the rules. Further, O. H. engaged in conduct unbecoming of a lawyer by threatening acts of reprisal against the complainants. This behaviour was seen as an instance of O. H. failing to uphold the standards and reputation of the legal profession.

The hearing panel found that O. H. actions were indeed considered professional misconduct. They noted his refusal to meet with the LSO investigator, his issuance of a notice of application against the LSO and the complainants as reprisal, and his failure to comply with court orders. The panel also highlighted his lack of courtesy and civility in communications with other licensees, which included falsely accusing them of negligence.

Animal Justice et al. v A.G of Ontario, 2024 ONSC 1753

In the case Animal Justice et al. v A.G. of Ontario, the Ontario Superior Court of Justice examined the constitutionality of the Security from Trespass and Protecting Food Safety Act, 2020 (the Act). The Act was challenged by Animal Justice and other applicants, who stated that particular provisions of the Act infringed on their freedom of expression guaranteed by the Charter.

The main legal issue was whether the Act’s restrictions on misrepresentations to obtain access to agricultural facilities and corresponding penalties for those actions violated the Charter. The Act was meant to prevent undercover activists from obtaining employment or entry to these facilities through deceit and then documenting and publicizing their findings.

The Court found that even though the Act was designed to safeguard biosecurity and the safety of animals and agricultural workers, it also had the incidental effect of limiting freedom of expression. The Court recognized that undercover investigations by activists serve a vital role in informing the public about issues of public interest, including animal welfare.

In its decision, the Court emphasized that even intentionally spreading falsehoods could potentially be protected under freedom of expression, another case where the SCC protected a Holocaust denier’s right to express false statements under section 2(b) of the Charter. The Court held that misrepresentations made by activists to expose animal cruelty might be interpreted to be a part of their expressive activity aimed at truth-seeking and advocating for social change.

Ultimately, the Court concluded that the act’s broad ban on misrepresentations was not protected by the reasonable limits clause. This means that limiting this kind of speech is this scenario is not justifiable under section 1 of the Charter. The provisions were considered to be disproportionate because they punished truthful communication about conditions in agricultural facilities. As such, it could be seen as violating the core values of freedom of expression.

As a result, the Court struck down the impugned provisions of the act, reaffirming the importance of protecting freedom of expression, even when it involves seemingly controversial or deceptive speech, in the context of public interest advocacy.

Rainbow Alliance Dryden et al. v. B. W., 2023 ONSC 7050

In the case of Rainbow Alliance Dryden et al. v. B. W., the Ontario Superior Court of Justice dealt with a motion brought by the defendant, Brian B. W., to dismiss a defamation action under section 137.1 of the Courts of Justice Act. B. W. argued that the action against him was a strategic lawsuit against public participation (SLAPP), designed to silence his freedom of expression on matters of public interest.

The defamation action stemmed from comments B. W. made on a Facebook page called “Real Thunder Bay Courthouse – Inside Edition” on September 17, 2022. B. W. accused the plaintiffs, Rainbow Alliance Dryden (RAD) and C. H., of predatory behaviour, implying that they were “groomers”—a harmful and unfound stereotype associating the 2SLGBTQI+ community with pedophilia and sexual abuse. These comments were made in the context of drag events organized by RAD, in which C. H. was a performer. Evidently, these kinds of disparaging comments can perpetuate a negative stereotype against members of the queer community, and in extreme cases it can incite violence towards them.

The plaintiffs argued that B. W.’s comments were not in the public interest but were rather defamatory and hateful, intended to provoke aggressions or hostility against a vulnerable group protected under section 15 of the Canadian Charter of Rights and Freedoms. The intervener, Egale Canada, supported this position, providing social and historical context to argue that B. W.’s speech perpetuated harmful anti-2SLGBTQI stereotypes and should not be protected by the anti-SLAPP provisions.

The Court found that B. W.’s expression did not relate to a matter of public interest that is required. The judge concluded that perpetuating harmful myths and stereotypes about the 2SLGBTQI community does not qualify as public interest speech. The term “groomer” specifically suggested manipulative and predatory behaviour towards children, which was not substantiated by facts, and moreover constituted defamatory speech.

Given the serious nature of the allegations and their potential harm to the plaintiffs’ reputations, the Court held that the public interest in allowing the defamation proceeding to continue outweighed the public interest in protecting B. W.’s expression. Consequently, B. W.’s motion to dismiss the defamation action was rejected, and the case was allowed to proceed.

This case emphasizes the limitations of the anti-SLAPP provisions in protecting harmful and defamatory speech, particularly when it targets marginalized communities.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.