Canada’s law on hate speech is the embodiment of compromise

Freedom of expression in Canada is normally a dry legal concept, sporadically explored by law professors in dense papers, and taken for granted by everyone else. Until now, if freedom of expression got any attention at all, it was fleeting and superficial, like a bumper sticker on a passing car. The terrorist attacks in France and their aftermath changed all that, giving freedom of expression an extended tenure in the limelight and popular consciousness.

But the discussion in Canada so far fails to address the unique Canadian approach to freedom of expression, and thus fails to ask a crucial Canadian question. Does freedom of expression as legally defined in Canada provide the right tools for expression challenges in a fragmented and largely angry 21st century social media world?

Canadian freedom of expression law, like so many things Canadian, embodies compromise. In the United States, even the most hateful, virile and destructive speech is constitutionally protected. In many other countries, expression is suppressed if politically problematic. We walk between those extremes.

Here you can be put in jail for hate speech. But before you condemn the prospect of jail for speaking your mind, consider the built-in limits to the hate speech law. There are seven of them, and together they pour a big pail of cold water on any over-zealous prosecutor intent on duct-taping your mouth. For a prosecution to go ahead, all of these conditions must be met:

1. The hate speech must be the most severe of the genre;

2. The hate speech must be targeted to an identifiable group;

3. It must be public;

4. It must be deliberate, not careless;

5. Excluded from hate speech are good faith interpretations of religious doctrine, discussion of issues of public interest, and literary devices like sarcasm and irony;

6. The statements must be hateful when considered in their social and historical context;

7. No prosecution can proceed without approval of the attorney-general, which introduces political accountability because the attorney-general is a cabinet minister.

Even with these limits, the Canadian hate law still clearly curtails free expression.

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