Public Incitement of Hatred (Offence)

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Public Incitement of Hatred
s. 319 of the Crim. Code
Election / Plea
Crown Election	Hybrid summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court Sup. Court w/ Jury (*) Sup. Court w/ Judge-alone (*) * Must be indictable.
Summary Dispositions
Avail. Disp.	Discharge (730) Suspended Sentence (731(1)(a)) Fine (734) Fine + Probation (731(1)(b)) Jail (718.3, 787) Jail + Probation (731(1)(b)) Jail + Fine (734) Conditional Sentence (742.1)
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	None
Maximum	2, 5 years incarceration
Reference
Offence Elements Sentence Digests

Overview

Offences relating to public incitement of hatred are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 318 [advocating genocide]	Indictable Offence(s)	N/A		(under 14 years max)
s. 319(1) [public incitement of hatred] and s. 319(2) [wilful promotion of hatred]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 318 [advocating genocide] are straight indictable. There is a Defence election of Court under s. 536(2) to trial in provincial court, superior court with a judge-alone or superior court with judge-and-jury.

Offences under s. 319(1) [public incitement of hatred] and (2) [wilful promotion of hatred] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 318 [advocating genocide] s. 319 [public incitement of hatred and wilful promotion of hatred]

When charged under s. 318 [advocating genocide], 319(1) [public incitement of hatred] and (2) [wilful promotion of hatred] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

• while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
• "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
• where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
• where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints and Photos

A peace officer who charges a person under s. 318 and 319 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 318 [advocating genocide]			(under 10 years max)
s. 319(1) [public incitement of hatred] and s. 319(2) [wilful promotion of hatred]			(under 10 years max)

Offences under s. 318 [advocating genocide] and 319(1) and (2) require the consent of the Attorney General to prosecute.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Advocating genocide

318 (1) Every person who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.
[omitted (2)]

Consent

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.
[omitted (4)]
R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1; 2014, c. 31, s. 12; 2017, c. 13, s. 3; 2019, c. 25, s. 120.

– CCC

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Public incitement of hatred

319 (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.

Wilful promotion of hatred

(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.

[omitted (3), (4) and (5)]

Consent

(6) No proceeding for an offence under subsection (2) [wilful promotion of hatred] shall be instituted without the consent of the Attorney General.
[omitted (7)]
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.
[annotation(s) added]

– CCC

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Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
318		"..., contrary to section 318 of the Criminal Code.
319		"..., contrary to section 319 of the Criminal Code.

Proof of the Offence

Proving advocating genocide under s. 318 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "advocates or promotes" genocide by "following acts committed with intent to destroy in whole or in part any identifiable group. Proving Public incitement of hatred under s. 319(1) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit communicated statements; ☐ the statements were in a "public place"; ☐ the statements incdite "hatred against a group; ☐ the group is an "identifiable group"; ☐ the incitement is "likely to lead to a breach of the peace"; and ☐ the culprit knew or was wilfully blind to the likelihood.

Proving Public incitement of hatred under s. 319(2) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit communicates statements; ☐ the communication was not in "in private conversation"; ☐ the culprit "wilfully promotes hatred against" a group; ☐ the group is an "identifiable group".

Interpretation of the Offence

Promotion of Hatred

Wilful promotion of hatred requires the Crown to prove "beyond a reasonable doubt that the [accused] made some or all of the statements alleged in the information and whether the statements made, as a matter of fact, promoted hatred of the [identifiable group]".

Totality of Circumstances

The judge must consider the "totality of the evidence".

This may include factors such as:

• terminology and history of the ethnic group
• Location where the rally was held
• actions and speech of the rally members
• the contexts fo the speech or words spoken
• symbols and banners
• the "ethnic flavour" of the event

Mens Rea

The minimum mens rea required is wilful blindness and not mere reckelssness.

This should require:

1. a subjective realization
2. of the likely result of his actions
3. deliberately avoid actual knowledge while engaging in or pursuing the activity.

Advocating Genocide

The offence under s. 319 only concerns the "most intense forms of dislike".

Causation

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

Wilful Promotion

It is necessary for the Crown to prove that:

1. the accused's "conscious purpose .. was to promote hatred against [the identifiable group]", or
2. "they foresaw that the promotion of hatred against that group was certain or morally certain to result from the [prohibited act]" despite doing the act "as a means of achieving" an ancillary purpose

Constitutionality

Section 319(2) was found to violate the freedom of expression under .s 2(b) but was upheld under s. 1.

The reverse onus found in s. 319(3)(a) violates the presumption of innocence under s.11(d) of the Charter but was upheld as a reasonable limitation.

Definitions

318
[omitted (1)]

Definition of “genocide”

(2) In this section, "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or

(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

[omitted (3)]

Definition of “identifiable group”

(4) In this section, "identifiable group" means 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.
R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1; 2014, c. 31, s. 12; 2017, c. 13, s. 3; 2019, c. 25, s. 120.

– CCC

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319
[omitted (1), (2), (3), (4), (5) and (6)]

Definitions

(7) In this section,
...
"communicating" includes communicating by telephone, broadcasting or other audible or visible means;
...
"identifiable group" has the same meaning as in section 318 [advocating genocide];
...
"public place" includes any place to which the public have access as of right or by invitation, express or implied;
...
"statements" includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.
[annotation(s) added]

– CCC

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Promotion of Hatred

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

"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. It most be more than mere recklessness.

Defences

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

s. 319
[omitted (1) and (2)]

Defences

(3) No person shall be convicted of an offence under subsection (2) [wilful promotion of hatred]

(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.

[omitted (4), (5), (6) and (7)]
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.
[annotation(s) added]

– CCC

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Participation of Third Parties

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. x [x]

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 318 [advocating genocide]	N/A	5 years incarceration
s. 319 [public incitement of hatred and wilful promotion of hatred]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 319 [public incitement of hatred and wilful promotion of hatred]	Indictment Election	2 years incarceration

Offences under s. 318 [advocating genocide] are straight indictable. The maximum penalty is 5 years incarceration.

Offences under s. 319 [public incitement of hatred and wilful promotion of hatred] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 318 [advocating genocide]	N/A
s. 319 [public incitement of hatred and wilful promotion of hatred]	any

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ranges

see also: Public Incitement of Hatred (Sentencing Cases)

Ancillary Sentencing Orders

Sentencing Profile

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 318	For conviction under s. 318, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences.

Forfeiture Orders

Section 319 provides its own manner of forfeiture:

319
[omitted (1), (2) and (3)]

Forfeiture

(4) Where a person is convicted of an offence under section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, on such conviction, may, in addition to any other punishment imposed, be ordered by the presiding provincial court judge or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct.

Exemption from seizure of communication facilities

(5) Subsections 199(6) [telephones exempt from seizure] and (7) [exception to telephone seizure exemption] apply with such modifications as the circumstances require to section 318 or subsection (1) or (2) of this section.
[omitted (6) and (7)]
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.
[annotation(s) added]

– CCC

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Record Suspensions and Pardons

Convictions under s. 318 and 319 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

• History of Public Incitement of Hatred

See Also

• See also Hate Propaganda Warrants and Forfeiture Orders

Related Offences

• Publishing False News (s. 181)
• Defamation and Libel (s. 297 to 317)

References

• Pre-Trial and Trial Motions Checklist