What is the Criminal Code limit on hate speech in Canada?

Hate speech in Canada is restricted by sections 318 to 320 of the Criminal Code, which prohibit advocating or promoting genocide, public incitement of hatred likely to lead to a breach of the peace, and the willful promotion of hatred. The provisions were enacted in 1970 in response to the Cohen Committee report and have been amended several times since, most recently to add 'expression based on gender identity or expression' to the list of identifiable groups. Prosecution under sections 318 and 319 requires the consent of the provincial Attorney General.

Section 318 makes it an indictable offence to advocate or promote genocide against an identifiable group, with a maximum penalty of five years in prison. Section 319(1) makes it an indictable or summary offence to communicate statements in a public place that incite hatred against an identifiable group where the incitement is likely to lead to a breach of the peace. Section 319(2) makes it an offence to willfully promote hatred against an identifiable group by communicating statements other than in private conversation. The current list of identifiable groups includes any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, and mental or physical disability.

Section 319 has been challenged twice as an unjustifiable infringement of section 2(b) of the Charter. The Supreme Court of Canada upheld the provisions by a 4-3 majority in R. v. Keegstra (1990), where Alberta high-school teacher James Keegstra was convicted of willfully promoting hatred against Jewish people. The court accepted the harm of hate propaganda as a pressing and substantial concern and found the provisions to be a proportionate response. R. v. Andrews and Smith (1990) was decided the same day on the same reasoning.

Provincial human-rights codes also restrict hate speech in non-criminal contexts. The Supreme Court considered the Saskatchewan Human Rights Code in Saskatchewan (Human Rights Commission) v. Whatcott (2013), upholding the prohibition on hate publications while reading down the 'ridicule' element as overbroad. The Canadian Human Rights Act formerly contained section 13 (online hate-speech provision) which was repealed in 2014, then partially restored for online platforms by Bill C-63 (the Online Harms Act) in 2024 to 2025. The balance between expression and equality remains an active area of Canadian constitutional debate.