Canada’s Hate Speech Laws: Offences, Defences and Bill C-9

Canada’s hate speech laws make it a crime to advocate genocide, publicly incite hatred likely to cause a breach of the peace, or willfully promote hatred (including through Holocaust denial) against an identifiable group. Penalties range up to five years in prison. A separate provision requires judges to increase the sentence for any crime motivated by hate. The federal civil remedy for hate speech was repealed in 2013, so criminal law now does most of the work at the national level, with a handful of provinces maintaining their own human rights prohibitions.

The Canadian Charter of Rights and Freedoms protects expression under Section 2(b), even offensive expression, but Section 1 permits reasonable limits. Hate speech laws have survived Charter challenges because courts have found that extreme hateful expression contributes little to public discourse while causing significant harm to targeted communities.¹

What Counts as Hatred

The legal threshold is high. Rudeness, insult, and sharp political criticism don’t reach it. In R. v. Keegstra (1990), the Supreme Court of Canada described the emotion the law targets as the most intense form of detestation and vilification directed at a group.²

Saskatchewan (Human Rights Commission) v. Whatcott (2013) sharpened the standard into an objective test: would a reasonable person, aware of the context, view the expression as likely to expose the targeted group to hatred? The court defined hatred as an emotion “predicated on destruction of reputation and denial of the very rights of the group to exist.”³ The speaker’s personal intent doesn’t control the analysis. What matters is the objective effect on a reasonable observer.

The offences all apply to expression directed at an “identifiable group,” defined in the Criminal Code as any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.⁴

The Criminal Offences and Their Penalties

Advocating Genocide

Section 318 criminalizes advocating or promoting genocide, meaning calls to destroy an identifiable group in whole or in part through killing or by deliberately inflicting conditions calculated to bring about physical destruction. It is a straight indictable offence with a maximum sentence of five years in prison.⁴ No prosecution can proceed without the consent of the Attorney General.⁵

Public Incitement of Hatred

Section 319(1) makes it an offence to incite hatred against an identifiable group by communicating statements in a public place where the incitement is likely to lead to a breach of the peace. The focus is on the immediate risk of violence or disorder. Prosecuted on indictment, the maximum penalty is two years; the Crown may also proceed by summary conviction for a lesser penalty.⁶ Unlike the other hate propaganda offences, this one does not require the Attorney General’s consent before charges are laid.

Willful Promotion of Hatred

Section 319(2) targets anyone who deliberately promotes hatred against an identifiable group through statements communicated other than in private conversation. There’s no requirement that violence be imminent. What matters is the intent to stir up hatred, whether through pamphlets, social media posts, speeches, or any other non-private channel. The maximum penalty on indictment is two years, and the Attorney General must consent to charges.⁶

The private conversation exclusion means remarks made in genuinely private settings don’t trigger liability. The boundary gets tested most often with online communications shared in closed groups that later become widely accessible.

Holocaust Denial

Section 319(2.1), a more recent addition, criminalizes willfully promoting antisemitism by condoning, denying, or downplaying the Holocaust through statements communicated other than in private conversation. Penalties mirror willful promotion of hatred: up to two years on indictment. Attorney General consent is required.⁶

A conviction on any of these charges results in a permanent criminal record, which affects employment, professional licensing, and international travel. Courts may also order forfeiture of the material that formed the basis of the offence.

Defenses to a Willful Promotion Charge

Section 319(3) provides four statutory defenses to a charge of willfully promoting hatred under Section 319(2). They reflect an effort to keep the law from reaching expression that serves a legitimate purpose, even when the content is heated or unpopular.⁶

Truth: the statements communicated were true.
Religious expression: the accused expressed or attempted to establish, in good faith, an opinion on a religious subject or an opinion based on a belief in a religious text.
Public interest: the statements were relevant to a subject of public interest, the discussion served the public benefit, and the accused had reasonable grounds to believe the statements were true.
Pointing out hatred for removal: the accused intended, in good faith, to identify matters producing feelings of hatred toward a group in order to have those matters addressed and removed.

Hate Motivation Increases the Sentence for Any Crime

Even when the charge isn’t a hate propaganda offence, Section 718.2(a)(i) of the Criminal Code requires courts to treat hate motivation as an aggravating factor at sentencing. That covers evidence the offence was motivated by bias, prejudice, or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity or expression, or any similar factor.⁷

The provision has been in force since 1996 and applies to any Criminal Code offence. A racially motivated assault, property damage targeting a religious community, or threats against someone because of their sexual orientation would all trigger the enhancement. Courts have interpreted it as requiring that hate or bias was a meaningful cause of the offence, and judges retain broad discretion in deciding how much to increase the sentence.

Court-Ordered Removal of Online Hate Material

Beyond prosecuting individuals, judges can order hate propaganda taken down. Section 320.1 lets a judge who has reasonable grounds to believe a computer system within the court’s jurisdiction stores publicly available hate propaganda order the custodian to provide an electronic copy, remove the material from public access, and supply information identifying whoever posted it.⁸

The person who posted it gets notice and can appear to argue against deletion. A judge may then order the material permanently deleted if satisfied, on a balance of probabilities, that it constitutes hate propaganda and was publicly available. A separate provision under Section 320 authorizes warrants to physically seize printed copies.

Civil and Provincial Remedies

There is no federal civil remedy for hate speech. Section 13 of the Canadian Human Rights Act, which once allowed complaints about hate messages by telephone or online, was repealed in 2013.⁹ Attempts to replace it, including Bill C-36 in 2021 and the Online Harms Act (Bill C-63), both died on the Order Paper. The Canadian Human Rights Commission cannot currently accept hate speech complaints.¹⁰

Provincially, the picture differs. British Columbia, Alberta, Saskatchewan, and the Northwest Territories each maintain some form of prohibition against promoting hatred or contempt in their human rights legislation. These systems generally allow individuals to file complaints with a human rights commission, which may refer the matter to a tribunal. Remedies are civil: orders to stop the communication, public interest remedies, and in some cases compensation for injury to dignity. Provincial tribunals widely apply the objective Whatcott test to decide when expression crosses into prohibited hatred.³

What Bill C-9 Would Change

The Combatting Hate Act (Bill C-9), introduced in September 2025, would be the most significant overhaul of Canada’s hate crime laws in years. As of early 2026, it has been reported to the House of Commons but has not received Royal Assent, so nothing below is yet in force.¹¹

A new Section 319(2.2) would criminalize willfully promoting hatred by publicly displaying symbols principally associated with listed terrorist entities, the Nazi Hakenkreuz (swastika), or Nazi SS bolts, with a maximum of two years on indictment.¹²
Hate-motivated criminal conduct would become a standalone offence rather than only a sentencing factor, with higher maximum penalties. Uttering threats, currently capped at five years on indictment, could carry up to ten years if prosecuted as a hate crime.¹¹
Willfully intimidating or obstructing people from accessing places of worship, schools, and community centres primarily used by an identifiable group would become an offence with a maximum of ten years on indictment.¹¹
The judicial definition of hatred would be written directly into the Criminal Code, grounded in the Supreme Court’s language about detestation and vilification and explicitly stating that mere dislike, disdain, or causing offence does not qualify.¹¹

The government has also indicated it plans to remove the Attorney General’s consent requirement for hate propaganda charges.¹³ That consent requirement currently applies to genocide charges under Section 318 and to willful promotion charges under Sections 319(2) and 319(2.1). Until Royal Assent, the existing consent requirements remain the law.

1
Department of Justice Canada. Section 2(b) – Freedom of Expression
2
Supreme Court of Canada. R v Keegstra
3
Supreme Court of Canada. Saskatchewan (Human Rights Commission) v Whatcott
4
Government of Canada. Criminal Code – Section 318
5
Department of Justice Canada. Criminal Code – Hate Propaganda
6
Justice Laws Website. Criminal Code – Section 319
7
Justice Laws Website. Criminal Code – Section 718.2
8
Justice Laws Website. Criminal Code – Section 320.1
9
Department of Justice Canada. Canadian Human Rights Act – RSC 1985, c H-6
10
Government of Canada. Proposed Bill to Address Online Harms
11
Department of Justice Canada. Combatting Hate Act – Proposed Legislation to Protect Communities
12
Parliament of Canada. Bill C-9 – An Act to Amend the Criminal Code (Hate Propaganda)
13
Government of Canada. Canada Introduces Legislation to Combat Hate Crimes, Intimidation, and Obstruction