Public Incitement of Hatred (s. 319) Charges in Canada: Offences, Defences, Punishments

What is public incitement of hatred in Canada?  

Public incitement of hatred is covered under s.319 of the Criminal Code.

Public incitement of hatred is often referred to as a hate-motivated crime. Before the police can charge you with an offence under s.319 of the Criminal Code they need to conduct an investigation and get consent from the attorney general to prosecute the offence.

Under s.319 of the Criminal Code, two separate offences are created through subsections (1) and (2). Both of the offences under s.319 of the Criminal Code are hybrid offences which means that depending on the circumstances of your case the Crown can proceed either summarily or by indictment.

Examples

Some common examples of public incitement of hatred include the following:

• Spray painting comments that call for violence on public transit property
• Posting Facebook comments attacking a race
• Spray painting hate speech on a church
• Burning a cross

Defences

Some defences against a public incitement of hatred charge include the following:

• Identity
• Lack of intent and
• Any applicable Charter

For offences under s.319 (2) of the Criminal Code additional defences, under s.319(3) of the Criminal Code, include:

• Establishing that the statements communicated were true;
• Establishing that you, in good faith, 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;
• Establishing that 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
• Establishing that you, in good faith, intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada

Punishments

If you have been convicted of an offence under s.319 of the Criminal Code you may be subject to the following penalties:

• Summary= two years less a day in jail and/or a $5,000.00 fine
• Indictment= two years in jail

This means that depending on the circumstances of your case the crown can elect to proceed either summarily or by indictment. Incitement of hatred is prosecuted harshly, and you could receive jail time if you are convicted. However, there are other penalties available to you as well.

Overview of the Offence

Under s.319 (1) of the Criminal Code:

Under s.319 (2) of the Criminal Code:

Two separate offences are defined by s.319(1) and 319(2) of the Criminal Code. The first one, under subsection (1), involves statements made in a public place, inciting hatred for an identifiable group and likely to result in a breach of the peace. The second offence, under subsection (2), involves statements made, other than in private conversation, that willfully promote hatred of an identifiable group.

The first offence suggests an immediate danger. It does not contain the word “willfully”.  The requirement is only that the incitement is likely to lead to a breach of the peace. There is no requirement that the person intends to promote or incite anything

In order to secure a conviction of incitement of public hatred the Crown must prove, beyond a reasonable doubt, both the actus reus and mens rea of public incitement of hatred.

Actus Reus (The Guilty Act)

The actus reus that the Crown must prove, beyond a reasonable doubt, to convict you of public incitement of hatred is that you:

• You communicated statements;
• In a public place; and
• You incited hatred against an identifiable group;

For the purposes of s.319(2) of the Criminal Code the actus reus would also include the following element:

• You promoted hatred

An identifiable group refers to any section of the public distinguished by color, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity, or expression, or menta or physical disability.

Communicating, under s.319 of the Criminal Code includes communicating by telephone, broadcasting or other audible or visible means.

A public place is defined to include any place to which the public have access as a right or by invitation, express or implied.

For the purposes of s.319(2) of the Criminal Code to prove that you promoted hatred the judge needs to consider the totality of the evidence before them.

This would include taking into consideration factors such as:

• The terminology used/history of the ethnic group
• The location;
• Your actions and speech;
• The context of your speech or words; and
• Any symbols or banners used.

Mens Reus (The Guilty Mind)

The mens rea that the Crown must prove, beyond a reasonable doubt, to convict you of public incitement of hatred under s.319 (1) of the Criminal Code is that:

• You had the intention to promote hatred

This means that the Crown has to prove that you in fact possessed the requisite intention to communicate statements, in a public place, and to incite hatred against an identifiable group.

The mens rea that the crown must prove, beyond a reasonable doubt, to convict you of public incitement of hatred under s.319 (2) of the Criminal Code is that:

• You wilfully promoted hatred

For offences under s.319(2) of the Criminal Code the minimum mens rea requirement is wilful blindness and not mere recklessness. This means that there needs to be a subjective element of intent. You must have intended that the statements as communicated, promote hatred. There must be either a conscious purpose for the promotion of hatred or you must have foreseen that the promotion of hatred was almost certain to result.

Defences 

A strong defence depends entirely on the specific circumstances of your case and the evidence against you.

However, some common defences to a public incitement of hatred charge may include the following:

• Identity
• Lack of intent; and
• Any applicable Charter

Identity

The Crown needs to prove its identity beyond a reasonable doubt. This means that the Crown must prove that it was you who committed the offence. This can often be difficult if there are no witnesses if there were conditions present that prevented a witness from identifying you, or if the offence was captured by poor-quality surveillance footage. Sometimes mistakes do happen, the authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. Your defence lawyer may be able to argue that the Crown cannot definitively prove that it was you who committed the offence, resulting in an acquittal.

Lack of intent

It is a defence to the charge of public incitement of hatred if you did not possess the requisite intent. The Crown must prove, beyond a reasonable doubt, that both the actus reus and mens rea of a public incitement of hatred charge are met in order to secure a conviction. As such, if you did not posess the requisite intent to communicate statements, in a public place, and to incite hatred against an identifiable group, you cannot be convicted of fraud as the mens rea element would not be satisfied.

Applicable Charter defences

The Charter sets out your rights before and after arrest. In the event the police fail to abide by these rights, you may have an applicable Charter defence to your charge:

Common Charter breaches include:

• Section 8- Right to be secure from search and seizure;
• Section 9- Right not to be arbitrarily detained;
• Section 10- Right to be informed of reasons for detention or arrest:
• Section 11- General: legal rights apply to those “charged with an offence”
• Section 12- Cruel and unusual treatment or punishment

If any of your charter rights have been violated, you may be in a position to have any evidence obtained during the breach excluded.

For offences under s.319(2) of the Criminal Code additional defences, under s.319 (3) of the Criminal Code include:

• Establishing that the statements communicated were true;
• Establishing that you, in good faith, 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;
• Establishing that 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
• Establishing that you, in good faith, intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada

If you are able to prove that any of the defences listed under s.319(3) of the Criminal Code are applicable to your case, you will not be convicted of an offence under s.319 (2) of the Criminal Code.

Punishment

Public incitement of hatred is a hybrid offence which means that the Crown may proceed by indictment or summarily, depending on the circumstances of your case. The following penalties may be applicable:

s.319 – Summary

If you are convicted of public incitement of hatred and the Crown elected to proceed summarily, you can face up to two years less a day in jail and/ or a $5,000.00 fine.

You will also have available to you a discharge, suspended sentence, stand-alone fine, custody and probation, and a conditional sentence.

s.319 – Indictment

If you are convicted of public incitement of hatred and the Crown elected to proceed by indictment, you can face up to two years in jail.

You will also have available to you a discharge, suspended sentence, stand-alone fine, custody and probation, and a conditional sentence.

Frequently Asked Questions

What is considered hate speech in Canada?

Hate speech refers to deliberate, abusive and threatening speech against an identifiable group of people. Identifiable groups can include different racial groups, genders, sexual orientations and more.

When did hate speech become illegal in Canada?

Hate speech became illegal in Canada in 1990 with the Supreme Court decision in R. v. Keegstra, [1990] 3 SCR 697, discussed below.

What is Bill C 36?

Bill C 36 amended the Criminal Code, the Canadian Human Rights Act (“CHRA”) and the Youth Criminal Justice Act to create new legislative options that address hate promotion and protect people from hate crimes. Bill C 36 added s.13 to the CHRA, which made it a discriminatory practice to communicate or cause to be communicated hate speech by means of the Internet or by other means of telecommunication. Under s.13 of the CHRA the Canadian Human Rights Commission can receive complaints regarding violations of the new section, and it allows the Canadian Human Rights Tribunal to adjudicate any disputes and to order remedies, such as ordering a person to cease and/or redress a discriminatory practice, provide financial compensation to the victim or pay a penalty.

Published Decisions

R. v Rehberg, 2010 NSPC 101

In this case, the accused and his brother erected a wooden cross on the front yard of a bi-racial couple’s house and set it afire. The accused was charged and convicted under s.319(1) of the Criminal Code.

You can read the full case here.

R. v. Keegstra, [1990] 3 SCR 697

In this case, the accused was a high school teacher who communicated to his students several negative remarks about the Jewish community. He attributed to Jewish people evil qualities and expressed doubt as to the occurrence of the Holocaust.  The accused was charged under s.319(2) of the Criminal Code. The accused objected on the ground that s.319(2) infringed upon his right to freedom of expression pursuant to s.2(b) of the Charter.

You can read the full decision here. 

R. v. Harding, 2001 CanLII 21272 (ON CA)

In this case, the accused was charged with and convicted of wilfully promoting hatred, contrary to s.319(2) of the Criminal Code, against Muslims in publications and telephone messages. The accused stated that all Muslims are capable of terrorism and cruelty and are part of the conspiracy to take over non-Muslim societies

You can read the full decision here.