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Législation relative à la lutte contre la haine au Canada

There are various ways to combat hate in Canada, but using legislation is one of the most common responses. Understanding how hate is conceptualised in legislation is important for understanding legal responses to acts of antisemitism and other religious discrimination. The Government of Canada has three main legislative documents for combating hate : the Canadian Charter of Rights and Freedoms, the Criminal Code of Canada, and the Canadian Human Rights Act. Not only are these documents are important components of Canada’s political and legislative response to hate, but they also set standards for social conduct and behaviour on the individual level (Hall 2017, 150).

The Charter of Rights and Freedoms

The Charter of Rights and Freedoms (hereafter ‘the Charter’) is part of the Constitution Act, 1982. It guarantees the rights and freedoms Canadians can exercise and uphold. Although the Charter is not always referenced in hate cases, it has been central in various legal decisions dealing with hate speech and propaganda. Some well-known examples from the Supreme Court of Canada include R. v. Keegstra (1990), R. v. Zundl (1992), and Ross v. New Brunswick School District No. 15 (1996).
Section 2(b) is frequently cited in hate propaganda cases. This section guarantees the following : ‘freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’. In some hate cases, those convicted of promoting hate propaganda (including speech) may accuse the courts of infringing on their rights as outlined in s. 2(b). If this happens, the courts may use Section 1 to limit the person’s right(s) (usually to freedom of expression) in order to prevent society from further harm.
To determine whether it is appropriate to use s. 1 to limit a person’s Charter rights, courts use a process called the Oakes Test. It was developed by former Chief Justice of the Supreme Court of Canada, Brian Dickson in R. v. Oakes (1986). The Oakes test involves a two-part process that courts use to determine if they are appropriately and justifiably limiting a person’s right. The first part determines whether the need to limit the right in a democratic society is pressing and substantial. The second part determines whether the measures used to limit the right are proportionate to the government’s objective. There are three considerations there : first, there must be a rational connection between the measures used to limit the right and the government’s objective. Second, the measures in question must only minimally impair the person’s right. Third, the effects of the measures must be proportionate with the government’s objective.

The Criminal Code of Canada

One of the most important legislative documents used to combat hate in Canada is the Criminal Code of Canada, especially the ‘Hate Propaganda’ section. In order for a person to be charged under these provisions, each province’s Attorney General must approve the charge(s). Its main goals in relation to hate are to prevent genocide and harm towards groups and deter people from promoting hatred.
The Criminal Code responds to hate in a number of ways. First, it outlines how courts should convict and sentence a person charged with advocating genocide against an identifiable group. It also outlines how to convict and sentence a person who publicly and openly promotes hate in such a way as to potentially risk public safety or incite hatred in others. More commonly, however, the Criminal Code is used to respond to those who are charged with intentionally promoting and enacting hatred towards identifiable groups and people, including religious groups and individuals as religion is a protected category in the Criminal Code.
Additionally, the Criminal Code outlines how to adjust a person’s sentence (mostly by increasing or intensifying it) if the crime in question involved destruction or vandalism towards a religious property such a place of worship or a cemetery, or if the crime was motivated by bias or prejudice towards a particular group, including religious groups.

The Canadian Human Rights Act

The Canadian Human Rights Act (CHRA) forms part of Canada’s human rights legislation. Whereas criminal law responds to those who violate the Criminal Code and are charged by law enforcement, Canada’s human rights system is run on a basis of complaints brought forth by victimised individuals (Walker 2010, 2). The human rights tribunals and courts are more specialised and focused than provincial and federal courts. This allows provisions in the CHRA to be applied in more flexible ways for various social issues, including those related to anti-religious discrimination and hate (Walker 2010, 2). Also, unlike the Criminal Code, an Attorney General is not required to give consent to classify an offence as discriminatory under the CHRA (Walker 2010, 7).
Section 2 of the CHRA entitled, ‘Purpose’ includes religion as a protected category. Thus, if a person feels they have been discriminated against on religious grounds, they could receive protection under the CHRA. Section 12 is the main section that pertains to hateful material and expressions. In certain circumstances, it can be used to prohibit the expression of certain signs, symbols, and other representations that either directly discriminate or could incite discrimination towards particular people, including people who identify as religious. Section 12 also expresses that, in addition to explicit discrimination, implied or intended discrimination can also be considered a violation against people’s human rights.

References

- Hall, Nathan. ‘Law enforcement and hate crime : theoretical perspectives on the complexities of policing “hatred”.’ In Hate Crime : Concepts, Policy, Future Directions, edited by Neil Chakraborti, 149–168. First edition. London : Taylor and Francis, 2017.
- Walker, Julian. ‘Section 13 of the CHRA, Anti-Hate Laws and Freedom of Expression’ Library of Parliament, 2010.
- Grossell, Mitchell. The Oakes Test. Canlii connects, 2014.

D 12 avril 2021    AMegan Hollinger

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