The Criminal Code, Section 319, makes it a criminal offence to communicate statements which incite hatred or willfully promote hatred against an identifiable group. The nature of the offence in s.319 is more stringent than the discriminatory prohibition in s.13(1) of the Canadian Human Rights Act (CHRA) as the Criminal Code refers to inciting hatred and willfully promoting hatred, whereas CHRA covers communications “likely to expose a person or persons to hatred or contempt”.

Criminal Code proceedings require proof of beyond a reasonable doubt, a higher standard of proof than in the CHRA which is the lower civil standard of balance of probabilities. Furthermore, persons charged with a criminal offence in Canada are entitled to a presumption of innocence, reinforced by s.11(d) of the Canadian Charter of Rights and Freedoms which states that an accused is “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.  Furthermore, the full formal rules of evidence including the exclusion of hearsay are available to persons charged under Criminal Code s.319. As well, the Criminal Code excludes persons who in good faith expressed or attempted to establish by argument an opinion upon a religious subject; this provision is not set out in the CHRA as an exemption to a finding of discrimination under s.13.

There is a significant difference between the provisions of s.13 of the CHRA and s.319 of the Criminal Code.   The Criminal Code proscribes incitement or promotion of hatred but the CHRA uses the phrase “hatred or contempt”. The word “contempt” does not appear in the Criminal Code and would appear to be a less severe standard of conduct than hatred. The use of the word “likely”,along with the addition of the term “contempt” establishes a much broader scope for the provision of s.13 of the CHRA than those of s.319 of the Criminal Code, especially combined with the broad provisions and mandate of the CHRA and the Canadian Human Rights Commission (CHRC). This has the potential to allow frivolous and harassing complaints.

Professor Richard Moon, a constitutional law expert from the University of Windsor, was commissioned by the CHRC to conduct an independent review of the operation of ‘hate speech’ under the CHRA. His first recommendation was to repeal s.13 of the CHRA so that the CHRC and the Canadian Human Rights Tribunal (CHRT) would no longer deal with ‘hate speech’ which would then be prosecuted solely under the Criminal Code (CHRC/Moon report).

The parliamentary Standing Committee on Justice and Human Rights has agreed to an internal review of s.13 of the CHRA and is seeking input on the issues and recommendations contained in the Moon Report (CHRC/news releases).  The Catholic Women’s League of Canada urges the federal government to use established Criminal Code proceedings on matters of hate and to repeal s. 13 of the Canadian Human Rights Act.