INTRODUCTION AND BRIEF DESCRIPTION
Section 319(2) makes it a criminal offence to wilfully promote hatred against any identifiable group through communication in public settings, punishable by up to two years imprisonment or a summary conviction.
SECTION WORDING
319(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.
EXPLANATION
Section 319(2) of the Criminal Code of Canada prohibits the willful promotion of hatred against any identifiable group through communication, other than private conversation. This provision is aimed at safeguarding social harmony and respecting diversity within Canadian society. The section criminalizes speech that incites hatred on the basis of race, religion, ethnic origin, color, gender identity, sexual orientation, or other characteristics that set an identifiable group apart from others. The Canadian courts have held that to prove an offense under this section, the prosecution must demonstrate that the defendant intended to promote hatred or willfully disregarded the probability of inciting hatred. Furthermore, the identifiable group must be targeted, and the hate message must be communicated publicly to breach the law. Section 319(2) presents a balance between freedom of expression and social harmony. Canadian courts are guided by a contextual approach to interpret this section, which gives the accused a fair opportunity to present their views on the purported hate speech and weigh the effect of the speech on the targeted group. The reasonable limits provision in the Canadian Charter of Rights and Freedoms establishes that the government has a responsibility to protect the rights of minority groups against the harms of hate speech. In conclusion, section 319(2) is an important provision in the Criminal Code of Canada that enforces social cohesion and respect for diversity. It strikes a delicate balance between freedom of expression and the need to protect targeted groups against hate speech. The courts continue to interpret this section in a way that reflects the Canadian values of democracy, tolerance, and pluralism.
COMMENTARY
Section 319(2) of the Criminal Code of Canada criminalizes hate speech. This provision seeks to protect vulnerable groups from being targeted by hate speech, which can have detrimental effects on their dignity, safety, and well-being. The section defines hate speech as any communication that promotes hatred against an identifiable group, other than in a private conversation. The provision recognizes that hate speech can take many forms, including verbal, written, and online communication. The use of social media platforms and other digital media has increased the reach and impact of hate speech, making it a pressing concern for policymakers, law enforcement agencies, and civil society organizations. Section 319(2) is a significant provision because it balances freedom of expression with the need to protect vulnerable groups from hate speech. Freedom of expression is a fundamental right that allows individuals to express their opinions, beliefs, and ideas without fear of censorship or persecution. However, this right is not absolute, and it is subject to limitations when it infringes on the rights of others. In Canada, hate speech is considered a form of prohibited expression because it can harm the social fabric of a diverse and multicultural society. Hate speech can contribute to the marginalization, stigmatization, and discrimination of vulnerable groups on the basis of their race, ethnicity, religion, gender identity, sexual orientation, or other characteristics. The criminalization of hate speech under section 319(2) reflects Canada's commitment to upholding human rights and fostering a democratic and inclusive society. The provision serves as a deterrent to individuals who would use hate speech to target vulnerable groups and incite hatred and violence. The provision has been subject to criticism and debate, with some arguing that it unduly restricts freedom of expression and that it is selectively enforced against certain groups. Others argue that the provision does not go far enough in protecting marginalized groups and that it should be expanded to cover other forms of discrimination, such as Islamophobia and ableism. In recent years, there has been a rise in hate speech and hate crimes in Canada, particularly against racialized and religious minority groups. The COVID-19 pandemic has also led to an increase in hate speech and discrimination against Asian Canadians. This underscores the importance of enforcing section 319(2) and of addressing the root causes of hate speech and discrimination in Canadian society. In conclusion, section 319(2) of the Criminal Code of Canada plays a vital role in protecting vulnerable groups from hate speech. While it is not a perfect provision, it reflects Canada's commitment to upholding human rights and to fostering a diverse and inclusive society. It is important to continue to monitor the implementation and enforcement of the provision and to address the underlying social and structural factors that contribute to hate speech and discrimination.
STRATEGY
Section 319(2) of the Criminal Code of Canada criminalizes the willful promotion of hatred against an identifiable group through means of communication. This section of the Criminal Code seeks to protect marginalized and vulnerable groups from being subjected to discriminatory and hateful speech. It is important to consider the implications and strategic approaches when dealing with this section of the Criminal Code, especially for individuals and entities that may be at risk of being prosecuted under this section. One of the most important considerations when dealing with section 319(2) of the Criminal Code is to assess the nature and scope of the communication in question. The section specifies that the communication must be something other than private conversation. What is considered private conversation will depend on the circumstances and context in which the communication took place. A strategy that could be employed in this regard is taking steps to ensure that there is no potential for the communication to be considered as non-private. For instance, if there is a possibility that a conversation or communication could be overheard, it may be important to refrain from making derogatory or discriminatory statements that could be construed as promoting hatred. Another strategy that could be employed is to examine the language that was used in the communication in question. The wording of section 319(2) suggests that the promotion of hatred must be "willful" in order for the individual or entity to be held liable under this section. This means that the prosecution must be able to demonstrate that the person committing the offence acted deliberately and intentionally. If there is any ambiguity or doubt as to whether the communication was intended to promote hatred, it may be possible to successfully challenge charges under this section. It is also important to consider the target group or groups of the communication. Section 319(2) provides protection to "identifiable groups" such as racial and ethnic minorities, religious groups, and LGBTQ+ individuals. The prosecution must be able to demonstrate that the communication was targeted at a particular group in order for a charge under this section to be successful. A defense strategy that could be employed in this regard is to argue that the communication was not targeted at a specific group, or that it was not intended to promote hatred. Finally, it is important to consider the potential consequences of a conviction under section 319(2) of the Criminal Code. A conviction could result in a term of imprisonment, fines, or other penalties. A conviction for an offence under this section could also have long-lasting reputational consequences, both for individuals and entities. A strategic approach could involve taking steps to mitigate the consequences of a conviction, such as seeking alternative sentencing options or negotiating a plea bargain. In conclusion, strategic considerations when dealing with section 319(2) of the Criminal Code of Canada require an understanding of the elements of the offence, as well as the potential consequences of a conviction. A range of strategies can be employed to mitigate the risks of being charged under this section, including controlling the scope of communication and being mindful of the language used. Overall, individuals and entities need to be aware of their obligations under this section of the Criminal Code and take steps to ensure compliance and avoid potential liability.