What are the tests and criteria for hate speech

Does the moral condemnation of homosexual conduct meet the criteria for hate speech? I’m not a legal expert and I have just begun my research into this, but the answer, I think, is maybe. Here’s the challenge.

The official doctrine of the Alliance Church is that homosexual conduct is sinful. Folks with a disposition towards homosexual behaviour are fine; as long as they don’t behave in homosexual ways. No penetration, no kissing, no sexting, no marriage, no winking or holding hands. Behaving in these ways is sinful and is officially condemned by the Alliance Church much the same way that violence, thieving and adultery is.¹ The point is that gay conduct is, I think, vilified, and this vilification is doctrinal.

The question is, does this constitute hate speech? Well, as a result of recent changes in law, the issue of hate speech will no longer be the purview of human rights commissions. I think we now only have the criminal code to rely on. And section 319 is the relevant part:

(1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace 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.

(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.

(3) No person shall be convicted of an offence under subsection (2)

• (a) if he establishes that the statements communicated were true;
• (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
• (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
• (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada…

So what’s interesting about this is that the kinds of things spoken out loud to congregations and published in newsletters and church policies may very well meet the test of 319.2, but it appears to get a free pass in 319.3.b. Apparently “opinion based in a religious text” is, at least sometimes, a defense against 319.2.

However, it is not the case that religion gets a free pass in all contexts. To see how this works, check out the Supreme Court of Canada decision in Saskatchewan (H.R.C.) versus Whatcott. I’ll be reviewing it.

“[116] The purpose of hate speech legislation is to restrict the use of representations likely to expose protected groups to hatred and its harmful effects. The expression captured under hate speech laws is of an extreme nature. Framing that speech as arising in a “moral” context or “within a public policy debate” does not cleanse it of its harmful effect. Indeed, if one understands an effect of hate speech as curtailing the ability of the affected group to participate in the debate, relaxing the standard in the context of political debate is arguably more rather than less damaging to freedom of expression. As argued by some interveners, history demonstrates that some of the most damaging hate rhetoric can be characterized as “moral”, “political” or “public policy” discourse.” – Saskatchewan versus Whatcott