Canadian Criminal Law/Offences/Public Incitement of Hatred

Interpretation
Section 319 only concerns the "most intense forms of dislike".

The section does not require proof that the communication caused actual hatred

Section 3(a) was found to violate the presumption of innocence under s.11(d) of the Charter but was upheld as a reasonable limitation.

Promotion of Hatred
The promotion of hatred is a question of fact determined by the judge.

According to Keegstra, "the word ‘promotes’ indicates active support or instigation" as well as "foment or stir up". It "indicates more than simple encouragement or advancement."

To promote hatred, more than mere encouragement is required.

It is not necessary to prove that the communication actually caused hatred.

To determine whether the communication promotes hatred the court must "consider the [communication] objectively but with regard for the circumstances in which the [communication] was given, the manner and tone used, and the persons to whom the message was addressed." The standard is different from the "reasonable observer" standard as it takes into account the nature of the audience itself.

Private Conversation
The offence under s. 319(2) excludes any communication that is in "private conversation".

This suggests that an "expression of hatred in a place accessible to the public is not sufficient". There needs to be a subjective mens rea, and as a result a "conversation or communication intended to be private does not satisfy the requirements of the provision if through accident or negligence an individual's expression of hatred for an identifiable group is made public."

Mens Rea
The mens rea of the offence requires "either an intent to promote hatred or knowledge of the substantial certainty of such".

"Wilful" can include wilful blindness.

Defences
The statutory defences are set out in s.319 (b), which states:

Cases

 * R. v. Harding, 2001 CanLII 21272 (ON CA)
 * R. v. Bahr, 2006 ABPC 360
 * R v Noble 2008 BCSC 215 sentenced in R. v. Noble, 2008 BCSC 216
 * R. v. Ahenakew, 2008 SKCA 4

Related offences

 * Publishing False News (s. 181)
 * Advocating Genocide (s.318)
 * Defamation and Libel (s. 297 to 317)