Hate crime legislation in Canada
There are three sections of the Criminal Code of Canada that pertain to acts of hate. These fall into two categories: ss. 318-319 deal with "hate propaganda", whereas s. 718.2 deals with any crime insofar as it is motivated by hate.
Hate Propaganda
The Criminal Code describes two offences that it collectively refers to as "hate propaganda".
- s. 318: (1) "Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years."
For the purposes of this law, "genocide" means killing, or "deliberately inflicting ... conditions of life calculated to bring about ... physical destruction" on "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation".
- s. 319 defines public incitement and wilful promotion of hatred. This one is more detailed, so let me quote it at length:
Public incitement of hatred
319. (1) 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
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Wilful promotion of hatred
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
Defences
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person 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;
(c) 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 he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
Hate as consideration during sentencing
s. 718.2 establishes circumstances that judges and juries may consider to mitigate or aggravate the severity of a crime, in order to render a proportionate sentence. If the offender is charged with spousal abuse, or if he is a repeat offender, if he "abused a position of trust or authority", and so on, then the Courts are encouraged to make the sentence harsher. The very first enumerated aggravating factor is s. 718.2(a)(i), which is: "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...."
What this means
In Canada, sexual orientation defines "identifiable groups", and acts of hate against gays and lesbians are as grave as acts of hate against Jews or Asians or any other group, in the eyes of the law. Now, it isn't against the law to say that homosexuality is a sin according to a reasonable reading of Leviticus, and that gays risk being denied grace if they don't repent; that is a bona fide religious argument, and it's protected under s. 319(3)(b). But scrawling "All fags will burn in Hell" on a flag you fly in front of your house could get you a criminal charge. That is not a claim made in good faith, and it isn't an argument; it's a malicious expression of contempt. Further, homophobic violence persists and prevails in many communities here, and s. 718.2 provides some way for the public to send a clear message that hateful behavior has no place in Canada.
In Canada, "hate crime" is not thought crime. Under no circumstances are you on trial for your thoughts, feelings, or beliefs. Nor can you be punished more than the maximum sentence the Code defines for the offence with which you're charged.
Imagine the brick wall of Fouad's Falafel Farm has the words "Your burgers suck" spraypainted on it. Vandalism is vandalism (the Code calls it mischief); for vandalizing property causing damages under the value of $ 5 000, the perp could be imprisoned for up to two years. Now, imagine Fouad's Falafel Farm has the words "Sand niggers go home". This is evidently a hate crime according to s. 718, but the charge will still be the same. It's still an act of mischief, and the maximum sentence is still two years in jail. The charge, and therefore the maximum sentence allowed by law, has nothing to do with your subjective state.
Under s. 718, hate is considered relevant when deciding whether the sentence should be maximum, or less. A hate crime might be given a tougher sentence than a similar crime differently motivated. This, in the same way spousal abuse is punished more harshly than assaulting a stranger, even though the physical fact of the matter is the same. Just as repeat offenders are often given harsher sentences than first time offenders, so too are hate offenders sometimes given harsher sentences. This is because, although we recognize that it is the act that is being punished and not the offender's beliefs or feelings, nevertheless the context of the act makes it more grave from the perspective of maintaining public order. It was not a random act of passion, it wasn't a lapse in judgment; it was a deliberate expression of racial, religious, or homophobic contempt. Again, we're not talking about a special punishment on top of the act – we're talking about the factors we consider in assessing a normal but proportionate sentence.
The case is a little more subtle under ss. 318-319, but even here, you are not on trial for your hate. Remember that you can say whatever you want in private conversation. It's only when you make a public communication that incites or "wilfully promotes" ethnic, religious, or homophobic violence that you can be charged with propaganda. Notice that it's not your hatred that's being charged; it's your act of promoting hate in public communication.
Which brings me to my next point. Arguably, in Canada, the law against hate propaganda is not an infringement of the right to free expression. According to our most ancient traditions of liberalism, nothing that is an act of harm can be considered an exercise of freedom. Now, the rights guaranteed by the Canadian Charter are, according to s. 1, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The standard of "reasonable" here is not simply what the normal man on the street might find "reasonable", ie. tolerable. Rather, the Supreme Court's standard is discursive: a "reasonable" limit is one that is demonstrated logically from correct principles. The Court has committed itself to using the harm principle as the highest rule for testing whether a limit to expression is reasonable in a democracy. For example, defamation (slander and libel) is expression that harms, so it's treated as a civil offence. There are also criminal forms of expression: fraud, for example. And the Criminal Code treats the crime of sedition gravely. These are all considered reasonable limits to expression; they are definitely expression, but they are not part of what is designated by a right to "free expression" – because fraud, defamation, sedition aren't exercises of freedom.
Now, I think it's clear – or anyway, this is my proposition – that inciting or promoting aggression toward any group poses exactly the same kind of threat as sedition, and that it fails any test of the harm principle that considers that crime as a guide in judging the harm of hate propaganda. The two are different crimes, and have different criteria; but what they have in common is this: that they treat advocacy or encouragement of some kind of unlawful violence as a credible threat of harm. If we recognize sedition as harm, there's no principled reason I can see for excluding hate propaganda. So, it seems to me that hate propaganda falls outside reasonable (ie., principled, conceptual) limits on the right to free expression.
Finally, note also that, in Canada, hate crime legislation makes no distinctions between majority and minority groups. It is just as criminal to incite hatred against white Anglo Christians as against any other group. To my (limited) knowledge there has not been a case of this nature yet heard; but the law allows for it, at least.
Disclaimer: I'm not a lawyer; just a student of the philosophy of law.
Sources:
Criminal Code of Canada, http://laws.justice.gc.ca/en/C-46/
Canadian Charter of Rights and Freedoms, http://laws.justice.gc.ca/en/charter/