“To attack the rights of one man is to attack the rights of everyone”: Conservative Rights Talk and Canada’s First Hate Speech Laws

ABSTRACT

In 1970, the Canadian government amended the Criminal Code to include the nation’s first provisions banning hate propaganda. This article examines the parliamentary debates over these provisions, from their introduction to their adoption, to assess how members of the two mainstream political right and right-of-center parties responded to the proposed amendments to the Criminal Code. It considers what this response—and the way in which it was articulated—reveals about how self-identified conservatives understood rights and freedoms, and how they conceived of the role of the state in securing these rights and freedoms in the context of Canada’s expanding legislative human rights framework. I argue that these debates over hate speech are illustrative of a coherent form of conservative rights-talk in 1960s Canada, one that varied from, and in some respects was in opposition to, a more dominant liberal discourse of rights.

KEYWORDS:

• Canada
• hate speech
• political right
• conservative
• human rights

On June 11, 1970, Bill C-3, An Act to Amend the Criminal Code, received royal assent in Canadian Parliament. Bill C-3 was a government bill, introduced in 1969 by Prime Minister Pierre Elliott Trudeau’s Liberals. The law added three new sections to the Criminal Code, prohibiting the promotion of genocide and banning the public communication of statements deemed to incite or willfully promote hatred against an identifiable group. These sections marked Canada’s first federal hate propaganda laws.

The very idea of criminal laws prohibiting hate speech divided Canadians; the conflict between the freedom of individuals to express themselves and to engage in public debate, on one hand, and the right of members of “targeted groups” to live free from hatred, on the other, exposed tensions in how Canadians understood human rights and their limits. Throughout the 1960s, the question of anti-hate speech laws was debated heavily in Parliament, in the press, among rights advocates, and in the general public. The extent of these debates caused Maxwell Cohen, a Canadian jurist and the chair of an extra-parliamentary committee that advised the government on the matter of hate propaganda in 1965, to state after Bill C-3 had been adopted that “few pieces of legislation in recent years received such a thorough and detailed examination from the point of view of principle and technique as did these Amendments” (Cohen 1971, 111). Despite this, in its final adoption, the bill remained highly controversial. It passed easily in the House of Commons by a vote of 89 to 45, but 127 members either did not vote or were absent (Hansard 1968–1972, 13 April 1970, 5807).¹ In the Senate there was a concerted but ultimately unsuccessful attempt to have the Bill referred to the Supreme Court on the grounds that it may be unconstitutional (Kaplan 1993, 260). Although the bill did become law in June 1970, there was certainly no consensus on the issue, and the debate over the appropriateness of regulating hate speech continues today.

There is therefore much to learn from a detailed study of the development and implementation of Canada’s hate speech laws, including how these laws fit into the broader expansion of anti-discrimination and human rights legislation. The push to ban hate propaganda can be understood as an extension of Canada’s domestic human rights revolution. Historian James Walker and legal scholar William Kaplan have examined the 1960s crusade to amend the Criminal Code, focusing on how groups like Jewish Canadians worked with legal scholars to convince the Liberal Party of the importance of protecting racial and religious minorities from hate (Kaplan 1993; Walker 2004). As a part of her broader study of hate crime in Canada, Allyson Lunny examines the language and arguments used in Parliament by supporters of the new hate speech laws to illustrate how these politicians presented hate propaganda as a threat to Canadian values and identity (Lunny 2017). Within the context of these works, the political right has consistently (and accurately) been presented as an opponent of hate speech laws. What is missing is an analysis of how this argument was presented and what it reveals regarding Canadian conservative conceptions of human rights.²

The partisan nature of the debates over hate speech laws is an important aspect of the development of Bill C-3. While there was some crossing of party lines in speeches before the House and in the final vote, the vast majority of support for the legislation came from either Liberal or New Democratic MPs, while the majority of Progressive Conservative and Créditiste members spoke in strong opposition to the bill. This article focuses specifically on the parliamentary debates over Bill C-3, from its introduction in 1968 to its adoption and royal assent in 1970, to assess how members of the two mainstream political right and right-of-center parties responded in political debate to the proposed amendments to the Criminal Code. It considers what this response—and the way in which it was articulated—reveals about how self-identified conservatives understood rights and freedoms, and how they conceived of the role of the state in securing these rights and freedoms, in the context of Canada’s expanding legislative human rights framework. I argue that these debates over hate speech are illustrative of a coherent form of conservative rights-talk in 1960s Canada, one that varied from, and in some respects was in opposition to, a more dominant liberal discourse of rights.³ While this liberal discourse was increasingly framed in the broader language of “human rights,” for conservatives, individual civil liberties—and in particular historic political and civil rights—were of greatest priority because they were the foundation of democratic practice. These rights were threatened by the more expansive liberal interpretation of human rights, with a primary example of this being the proposed hate speech provisions.

In her 2009 article, “Rights Talk and the Liberal Order Framework,” Elsbeth Heaman called for a “more nuanced account of liberties, conservatism, and the connections between them” (154). Liberty and human rights are often viewed as the domain of liberals or progressives, with conservative parties in Canadian history presented as, at best, wary of how human rights constrained governments or elites, and at worst as anti-rights. Heaman explores the “vibrant tradition of conservative rights talk” in 18^th- and 19^th- century Canada—a tradition that emphasized historical rights⁴ and challenged government interference in the name of liberty—to show how conservatives provided an alternative to hegemonic liberalism by using their own “language of liberty to defend people whom they felt liberalism was neglecting” (Heaman 2009, 153–158).

Similarly, this article argues that, rather than being anti-rights, conservatives in mid-20^th-century Canada supported the expansion of anti-discrimination and human rights law, but they did so in ways that reflected differences in how they understood rights and what these rights were meant to protect. The debate over Bill C-3 exposed these differences. Certainly, some PC and Créditiste MPs were sympathetic to the ideas and messages of hate mongers—as various articles in this special issue reveal—while others found them appalling. A closer study of the arguments and the rights discourse used by these MPs to oppose the proposed hate speech provisions therefore reveals both the ideological debate that existed in Canada at this time over the meaning of equality and of “free speech,” and how human rights could be wielded by different groups to further sometimes competing or contradictory goals. Not only did conservatives oppose the arguments made by Liberals and New Democrats that Bill C-3 was important because, in protecting the rights of victims of hateful speech, the law would promote a more equitable Canada, but conservative MPs wielded their own rights-talk to counter this argument. At times, this included presenting those accused of hate speech as victims themselves. This strategy to oppose regulating speech continues to the present day, and so this article gives important context to contemporary discussions regarding the tensions between freedom of expression and the right to live free from hate in Canada.

Rights Traditions in Canada

While most histories of human rights in Canada tend to focus on 20^th-century developments, scholars such as Ducharme (2014), Heaman (2009), Ajzenstat (2007), and Clément (2016) have examined how concepts such as liberty, rights, and freedom were understood and used by early settlers and colonial politicians to protect their interests and to help shape political structures and institutions before and after Confederation. An important theme in these works is that, while “liberty” and “rights” have played a central role in state formation in Canada, the meanings of these concepts have long been a cause for debate.

Ducharme highlights two competing ideas of liberty that emerged in political discourse in Upper and Lower Canada from the late-18^th century to the rebellions of 1837–38: a “modern liberty” that stressed individual autonomy and commercial interests in the tradition of Locke; and a “republican liberty” that emphasized popular sovereignty and civic engagement.⁵ He argues that the violence of the rebellions was the result of the conflict between these two irreconcilable conceptions of liberty, and while the “modern” version may have triumphed, the ideological debate itself heavily influenced state development and political culture in what became Canada. As Heaman demonstrates, however, liberals were not alone in their use of rights discourse in this period. She elucidates a parallel (and perhaps even earlier) conservative tradition of invoking the collective and historical rights of Englishmen, which had descended from the Magna Carta and evolved through documents such as the Right of Petition and the British Bill of Rights. While conservatives rejected the abstract idea of rights as universal principles that was increasingly espoused by liberals into the 19^th century, they supported an idea of rights based on an individual’s status as a British subject. From this, conservatives developed their own discourse of rights, which they employed to variously defend or challenge state authority, all the while criticizing liberal hegemony (Heaman 2009, 155–156). Heaman argues that it was the interplay between this conservative rights-talk and the more liberal attachment to abstract individualism that shaped the conception of rights that emerged in Canada.

By 1867, rights-talk had permeated mainstream political discourse in Canada. Janet Ajzenstat relates how the word “rights” came “bursting out of the speeches” of Confederation legislators, who “congratulated themselves on their rights as subjects of the British Crown” (2007, 50). That the final script of the British North America Act did not codify these rights was a reflection of the influence of British constitutionalism, and the belief that the principles of parliamentary supremacy and the rule of law would be more effective in promoting individual liberty than an American-style bill of rights. When settlers spoke of “rights” or “civil liberties,” they were most commonly describing a set of customary rights and freedoms inherited from British tradition, one that centered on property rights, freedom of the press, religion, assembly, and association, and legal rights such as habeas corpus and the right to a fair and public trial (Clément 2016, 25). These rights acted as a safeguard against undue government interference into the private interactions and activities of individuals. While rights were often described as natural, they were far from universal, often connected to one’s status as a British subject and understood as a privilege of long-standing tradition (Clément 2016, 33). The concept of equality referred only to the equal protection of the law and did not include a sense that all people should be treated as equals or have the same political, economic, social, and civil privileges. This historical vision of rights continued to shape Canadian policy into the mid-20^th century. It was not until after the Second World War, with pressure from a growing Canadian and international human rights movement, that this view was significantly challenged. Thereafter, Canadian policy began to reflect more egalitarian rights, whereby all people should be treated as equals and minorities protected against discrimination (Clément 2016; Tunnicliffe 2019b, 19–36).

The scholarship on these 20^th-century developments stresses the role of activists and marginalized communities in pushing government to expand legislative protection for human rights, and how evolving understandings of rights have influenced Canadian society (Lambertson 2005; Patrias and Frager 2001; Walker 2002). Little attention has been given to how ideas about human rights informed the policies and platforms of Canadian conservatives and political-right parties into the 20^th century, or what the roles of conservatives were in the adoption of anti-discrimination laws and human rights codes.⁶ Rather than working as opponents to these new laws, conservatives were active in their development. In Ontario, Progressive Conservative governments under Leslie Frost and John Robarts were responsible for adopting, respectively, Canada’s first Fair Employment Practices Act in 1951 and the first provincial Human Rights Code in 1962 (Howe 2000). Hugh Flemming’s PC government in New Brunswick passed that province’s first fair practices laws in 1956. And Social Credit governments also enacted anti-discrimination and human rights laws. W.A.C. Bennett’s government introduced fair practices acts in British Columbia in the 1950s and a Human Rights Act in 1969, while Ernest Manning’s Socreds developed Alberta’s Human Rights Act in 1966 (Clément 2013, 2014). At the federal level, PC John Diefenbaker was one of the earliest rights advocates in Parliament, and his government adopted Canada’s first Bill of Rights in 1960.

In the post-World War II period, then, there was less partisan division over the need to enhance legislative protection of rights and freedoms in Canada than might be expected. However, closer study of the debates leading to the adoption of these news laws—much like the debates over Bill C-3—reveals important differences in how conservatives conceived of rights, over which rights they prioritized and which were excluded, and over the power of government to promote and protect these rights. These differences shaped the anti-discrimination and human rights laws enacted and are an important part of the history of human rights in Canada.

Freedom of Expression in Canadian History

Despite the growing scholarship on human rights history, there is very little literature on Canada’s tradition with freedom of expression. In the debates over Bill C-3, advocates and opponents of the proposed law all spoke of Canada’s long tradition of free speech and expression. Yet these freedoms were not originally codified in Canadian law, and there was no clear constitutional protection of speech or expression in English common law (Roach and Schneiderman 2013, 421). In writing on “liberty of discussion” in British law, constitutional scholar Albert Dicey stated in 1885 that “At no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech … Nor is the law of England specially favorable to free speech or to free writing in the rules which it maintains in theory” (Dicey 1897, 239–240). As early as the mid-17^th century, there was an assertion for the right to free speech within Parliament, which was codified in the English Bill of Rights in 1689. While this only applied to legislative debates in Parliament, David Bogen argues that increasingly this was viewed by some English subjects as a “fundamental value in society” more broadly (Bogen 1983, 434). English courts also articulated a common law right to free expression when they restricted the Crown or Parliament in certain ways, such as in restricting laws that limited the right to demonstrate, in denying defamation actions that would limit political speech, or in applying defenses of fair comment and privilege to libel (Barendt 2009, 853).

Michel Ducharme argues that freedom of expression was important to colonists in late 17^th- and 18^th- century Canada, but that this expression had recognized limits. Subjects could “express themselves freely, but always with respect for their peers” as “one person’s freedom stopped where another’s began” (Ducharme 2014, 135–136). English jurist William Blackstone described it this way in 1765: “Every freeman has an undoubted right to lay what sentiments he pleases before the public … but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity” (Blackstone 1979 [1765-1769], 4, 151). While rights-talk was an important part of the debates leading into Confederation, and the British North America Act endowed the new Dominion of Canada with “a Constitution similar in Principle to that of the United Kingdom,” there was no explicit protection of speech or expression.

As in England, courts in Canada furthered the tradition of free expression in their decisions. The best-known example is the 1938 Alberta Press Case, in which the Supreme Court declared Alberta’s Accurate News and Information Act unconstitutional because freedom of the press was too fundamental a right to be left to the jurisdiction of the provinces. In rendering its decision, the court argued that “free public discussion of public affairs” is the “breath of life for parliamentary institutions” (Roach and Schneiderman 2013, 431 fn7). Despite this assertion, it was not until 1960, with the adoption of Prime Minister John Diefenbaker’s federal Bill of Rights, that freedom of speech and freedom of the press were officially codified into Canadian law (Bill of Rights, Section 1d).

Yet freedom of speech was never considered absolute. There is a long and clear history of restrictions on speech, in Britain and in Canada, using both civil and criminal law. In general, speech in Canada was limited in three ways leading into the post-World War II era. First, speech critical of the institutions of government or society was suppressed on the grounds that it threatened peace, security, and order in society. Sedition laws in particular were used to prevent or prosecute speech which could “incite gravity and danger” (Gower 2002, 45; Criminal Code of Canada 1892, s120–26). Also listed in the Criminal Code was a range of sections designed to suppress speech that was deemed blasphemous or obscene (s170; s179–80). And finally, both defamation and libel were declared wrongs; under civil and criminal law, making false or misleading statements or publishing materials that harmed a person’s reputation was prohibited (s106–9; s125–6). However, in Canadian law, defamation and libel laws applied only to attacks against individuals, not groups. A 1951 Supreme Court ruling on sedition laws also established that these laws did not include prohibitions against any “intention to produce feelings of hatred and ill will between different classes” (Boucher v. The King 1951). Therefore, despite the expansion across Canada of anti-discrimination and human rights legislation, even by the 1960s, there were no laws specifically protecting groups from hate speech.

Growing Demand for Laws to Criminalize Hate Speech

After the Second World War, there was increased demand in Canada for laws banning hate speech. This came in response to the horrors of the war and the Holocaust, and also emerged out of Canada’s growing human rights movement. By the end of the 1950s, most jurisdictions in Canada had adopted anti-discrimination laws and there was a growing sensitivity to discrimination based on race, religion, and national origin. In 1953, minority groups including Jewish and Japanese Canadians testified before a Joint Committee of the House of Commons and Senate dealing with revisions to the Criminal Code (Kayfetz 1970, 5–8), calling for legislation against religious and racial hate propaganda. The government failed to act, however, and it would take another decade before the first anti-hate laws were introduced into Parliament.

Hate propaganda became a more serious topic in the early 1960s, with the outbreak of what was referred to as the “swastika epidemic,” when countries around the globe saw a spike of anti-Jewish hate propaganda. In January 1960, newspapers reported on antisemitic vandalism in cities such as Montreal, Vancouver, Winnipeg, and Toronto.⁷ Identifiably Jewish buildings, monuments, and tombstones were defaced with swastikas, and several prominent Jewish citizens received threatening letters (Robinson 2015, 132–133). Prime Minister John Diefenbaker and other federal politicians spoke publicly of their revulsion at these acts (Hansard 1950–1951, 10 August 1950, 335–336). Diefenbaker’s government was in the process of adopting a national bill of rights, but while the proposed bill prohibited discrimination based on “race, national origin, colour, religion or sex,” there were no plans to include articles relating to hate propaganda.

Beginning in 1963, Canada experienced a second wave of hate propaganda, this time inspired by Nazi and white supremacist organizations in the United States (Jones 1998, 206; Rosen 1989, 1). In November, leaflets published by the American Nazi Party entitled “Hitler Was Right” and “Communism is Jewish” were thrown from buildings onto citizens attending a Remembrance Day ceremony in Toronto (Walker 2004, 112). Swastikas and slogans such as “Jews die” were painted on synagogues and stores in Toronto, Winnipeg, and Vancouver (Robinson 2015, 133). Over the next few years, anti-Jewish and anti-Black propaganda became more widespread, especially in Ontario and Quebec. Hate literature was disseminated through the public mail system and in the streets. A cross was burned on the main street of Amherstburg, Ontario, and the primarily Black First Baptist Church was desecrated with a warning that “The Klan is coming” (Parent and Ellis 2014, 33). Incidents such as these generated enormous media coverage. The Jewish Labour Committee (JLC) initiated a public campaign, demanding federal legislation to make it illegal to incite violence against a group based on that group’s race, religion, color, or national origin (Walker 2004, 5–6; Lunny 2017, 38). In its campaign, the JLC argued that hate propaganda constituted a threat to all Canadians, not just those of African or Jewish ancestry, and for that reason, it must be banned. The JLC’s demands caused citizens, activist groups, minorities, and government officials to debate how Ottawa should respond to the spike in incidents of racial hatred.

Campaigners argued that a ban on hate speech would protect the rights of members of identifiable groups not to be subjected to hatred, and they built on the strategies they had used to pressure governments to enact anti-discrimination laws in the 1950s. Jewish organizations led the public crusade, but in order to establish that this was not merely a Jewish issue, they worked to rally broader support. Beginning in 1963, Black Canadians, Japanese Canadians, church groups, and a variety of professional and voluntary organizations, including the Manitoba Bar Association, the Canadian Federation of University Women, the United Nations Association of Canada, the National Convention of the Royal Canadian Legion, the Canadian Federation of Mayors and Municipalities, the National Council of Women, the Canadian Citizenship Council, and organized labor, all supported the campaign (Walker 2004, 5–6) Advocates encouraged members of these organizations to contact their local MPs and media outlets to express their wish for Ottawa to take legislative steps to stop the spread of hate literature.

In 1963, the Liberal Party returned to power in Canada under the leadership of Lester Pearson. Human rights were not of particular concern for Pearson, as he was preoccupied with other domestic and foreign affairs, but his government did conduct an internal review on how Canadian law could be used to counter hate propaganda (Tunnicliffe 2019a). Minister of Justice Guy Favreau met several times with provincial attorneys general, but no action was taken due to concerns over violating freedom of expression and freedom of opinion (Kaplan 1993). By 1964, in response to a continued rise in the dissemination of hate propaganda—particularly in the mails and distributed as pamphlets—opposition MPs began to ask the government what actions it was taking. In March, Opposition leader John Diefenbaker reported to the House that he was one of the many Canadians receiving antisemitic letters through the mail, and he asked if any action could be taken under Canada’s existing sedition laws (Hansard 1963–1965, 10 March 1964, 732). Several other MPs across the political spectrum sought clarification as to the Government’s plan to deal with the materials: AD Hales (Progressive Conservative), Reid Scott (New Democratic Party [NDP]), and William Dean Howe (NDP) each asked directly about the prospects for hate literature laws (7464; 8023). The Justice Minister remained non-committal, but the Postmaster General indicated that his office had issued two prohibitory orders under Section 7 of the Post Office Act: one was against the National White Americans Party from Atlanta, Georgia; the other against the National States Rights Party from Alabama (9041). He described the material being distributed as heavily anti-Black and anti-Jewish, calling for the deportation of all Blacks to Africa, and for the sterilization of all Jews (Kaplan 1993, 247).

When no direct action came from the Liberal government, two Members of Parliament introduced related private members’ bills into the House of Commons: Milton Klein, a Liberal member from Montreal introduced a law relating to genocide, and David Orlikow, the national director of the Jewish Labour Committee and an NDP member from Winnipeg, introduced a bill restricting the use of the public mail system to distribute hate propaganda (Lunny 2017, 31).

Recognizing the growing importance of these issues, members of the House voted to send both Orlikow’s and Klein’s bills to the House External Affairs Committee for further study. This combination of citizen activism and growing interest in the issue in Parliament generated enough public support to pressure the Liberal government to take action. Unwilling to introduce new laws, Justice Minister Favreau agreed to establish an extra-parliamentary committee to advise the government on how to suppress hate speech while at the same time balancing free speech. Maxwell Cohen, Dean of McGill University’s Law School, became the chair of this committee, and its mandate was to study the nature and extent of hate propaganda in Canada, to consider whether legal measures were necessary for its control, and if so to make appropriate recommendations (Canada 1966).

Rather than holding public hearings and taking submissions from the public, the committee insisted that the problem of hate propaganda could only be understood by placing it into a broader social, political, and legal context, including looking outside Canada for answers as to how best to balance legislation prohibiting hateful speech with freedom of speech, association, and belief. The commission conducted a number of studies. One examined Canada’s existing laws in relation to those in the US, Britain, and other common law nations. Another explored international developments, considering how global issues such as apartheid, colonialism, and antisemitism might apply to the subject of hate speech. A third considered the socio-scientific implications of racial hatred, on individuals and on societies (Canada 1966). The committee also discussed in detail developments at the UN, including the 1965 adoption of the International Convention on the Elimination of all Forms of Racial Discrimination.

After ten months of study, the Cohen Committee released a report, drawing several important conclusions based on its broad studies: that prejudice is a culturally learned condition; that given the proper circumstances, humans can be persuaded to believe almost anything; and that hate propaganda and racially motivated crimes have a tragic consequence on target audiences (Canada 1966). The report concluded that existing Canadian law was insufficient to deal with the hate propaganda of the 1960s and recommended that the federal government amend the Criminal Code to include provisions banning hate speech. A draft amendment to the Code was included in the Report, outlining three new offenses: advocating or promoting genocide; publicly communicating statements that incite hatred against any identifiable group, which is likely to lead to a breach of the peace; and willfully promoting hatred against an identifiable group. The term “identifiable group” was defined as “any section of the public distinguished by religion, colour, race, language, ethnic or national origin” (Canada 1966). The Cohen Commission justified the need for these hate speech provisions on the basis that civil disorder could result from victims’ reactions to hate speech, and it argued that a ban would send a positive message to minorities in Canada. The committee argued: “Canadians who are members of any identifiable group … are entitled to carry on their lives as Canadians without being victimized by the deliberate, vicious promotion of hatred against them. In a democratic society, freedom of speech does not mean the right to vilify” (Canada 1966).

The Road to Bill C-3

The Cohen Commission finished its work in November 1965 and released its report and recommendations to Parliament on January 4, 1966. But government legislation to implement these recommendations did not immediately follow. Several proposed bills were introduced into the Senate following the release of the report, but all died on the order paper as sessions of Parliament ended before discussion of the bills was complete.⁸ In 1968, after Lester Pearson’s retirement, Pierre Elliott Trudeau became prime minister. Trudeau had been the Minister of Justice under Pearson, as well as a member of the Cohen Commission, and so he was familiar with the proposed hate speech provisions. His government reintroduced its most recent Senate bill as Bill S-21, which received first and second reading before being referred to the Senate Standing Committee on Legal and Constitutional Affairs. The committee held public meetings, soliciting briefs and oral submissions from “thirty-two witnesses and … almost twenty organizations” (Kaplan 1993, 260). In June 1969, the Senate Committee published its report, which was adopted, and the bill received third reading and passed. Once again, however, Parliament adjourned and the bill died accordingly. By this point, however, the Liberals in the House were ready to support a bill aiming to combat propaganda, and this led to the development of Bill C-3.⁹

Minister of Justice John Turner formally spoke to Bill C-3 in the House of Commons on its second reading, on November 17, 1969. Turner explained the history of the law and its different iterations, and then outlined the bill itself. He justified the bill by stating that the government accepted the Cohen Commission’s conclusion that “the Criminal Code, in the widest interpretation, does little or nothing to protect groups from the evils of hate propaganda” (Hansard 1965–1968, 17 November 1965, 883). The bill was then debated extensively before being referred to the Standing Committee on Justice and Legal Affairs for review. This Committee submitted a report (with a few proposed amendments) on April 6, 1970. The House discussed the report again in a prolonged debate before the bill received third reading on April 9. In the final vote, it was adopted by a vote of 89 to 45. Subsequently, it was returned to the Senate and passed. Finally, on June 11, 1970, Bill C-3 received royal assent. The law added three new sections to the Criminal Code, prohibiting the promotion of genocide, the public communication of hatred, and the willful promotion of hatred.¹⁰

More than 60 MPs took part in the debates over Bill C-3, almost half of whom came from either the Progressive Conservative Party or the Créditistes.¹¹ The discussion was not entirely partisan. Liberals such as Patrick Mahoney (Calgary South) and John Roberts (York-Simcoe) questioned the necessity of the legislation. Progressive Conservative Lincoln Alexander, who had become the first Black Canadian Member of Parliament in 1968, gave an impassioned speech in support of the bill. Other than Alexander, however, all conservative members who spoke in the debates spoke against the passage of Bill C-3. Although the specifics varied, there was a consistency in the underlying arguments they put forward and in the way these arguments were articulated. That consistency composed a coherent conservative view of the proposed law.

Response in the House to Bill C-3

Turner’s speech concerning Bill C-3 summarized many of the arguments that were later used by Liberals (and New Democrats) during the debate in their support of the bill. He began by establishing the history of the proposed amendments, and by asserting that the current Criminal Code was insufficient to deal with the problem of hate propaganda. Turner recognized that the proposed bill contained restrictions on freedom of expression, but argued that “the question is not whether one is for or against free speech but, rather, what are the permissible limits on free speech; what are the permissible contours of freedom of speech and expression?” (Hansard 1968–1972, 6 April 1970, 5556). Referring to the reports of the Cohen Commission, Turner asserted that hate propaganda was a “poison” in Canadian society, causing great harm to victims but also negatively affecting the entire country. He finished by claiming that, in adopting hate speech provisions, the government would put on record that “the conscience of the Canadian community will not tolerate that kind of activity” (5557). Turner’s opening speech made clear the Liberal government’s position that the potential dangers of hate speech, and the right of religious and racial minorities in Canada to live free from being victimized by this speech, justified what he argued was a narrow restriction on expression.

In subsequent debates over the bill—in the House and in committee—the majority of Liberal and NDP MPs supported Turner’s arguments, often citing the report of the Cohen Commission. The main themes brought forward by these politicians included several ideas: that hate propaganda constituted a serious threat to Canadian society; that the current sedition, libel, and defamation laws did not protect groups from harmful speech; that the bill did not constitute a grave or unreasonable restriction on freedom of expression or free speech; and that the law offered an educative opportunity to teach Canadians that hate speech was not acceptable, even if the law in itself would never rid Canada of hate entirely.

One of the greatest champions of Bill C-3 was Liberal Mark MacGuigan (MP for Ontario’s Windsor-Walkerville riding), who had been a member of the Cohen Commission. MacGuigan’s contributions to the debates reflect a theme common in the speeches of many Liberal and NDP members—that the Criminal Code needed a mechanism by which to protect the right of identified groups to live free from hate speech and that the dangers of this speech (and the public harm and disorder it caused) justified restrictions to the individual rights of those Canadians who chose to publicly disseminate hatred (Hansard 1968–1972, 7 April 1970, 5594). Colin Gibson (Liberal, Hamilton-Wentworth) agreed, framing this as a matter of equity or fairness, and claiming that “minorities need protection, and that the Canadian standard for fair play for all demands it” (5577). New Democrat David Orlikow, who had been responsible for submitting various private members bills to alter the Post Office Act to prohibit use of the mails to disseminate hate, also furthered this notion of “fair play.” In describing the purpose of the bill, he stated,

This bill proposes to do for groups what has already been done and what has worked so well over many years for individuals. It proposes, as I understand it, to protect groups from the type of dishonest, malicious and harmful criticism which is now prohibited by law against an individual. I think that is not only fair but is necessary. (5550)

Like many other Liberal and NDP members, Ian Wahn (a Liberal MP from Toronto’s St. Paul’s riding) maintained that Bill C-3 was “not an assault on freedom” but filled gaps in Canadian law and helped carry out Canada’s obligations under the UN Declaration on Human Rights and the newly adopted UN Declaration on the Elimination of all Forms of Racial Discrimination (5699).

In contrast to Liberal and NDP support, all the opposing responses from PC or Créditiste MPs presented Bill C-3 as an assault on individual rights, characterizing it as an overreach of the Liberal government that posed a real danger to Canadian society. In making this argument, they used their own discourse of rights, one in which the historical civil liberties of individuals in Canada were defined as inalienable and fundamental to the workings of Canadian democracy. Bill C-3 represented a blatant violation of these rights, and therefore a threat to democracy.

Many of the MPs who spoke against the bill began their speeches by asserting two common points: they personally found the recent examples of hate propaganda in Canada to be abhorrent and did not condone the ideas contained therein; and they supported the first section of the bill, prohibiting the promotion of genocide. While some MPs may have sympathized with the antisemitic, anti-Black, and other discriminatory views espoused in the hate propaganda of the period, none were willing to explicitly defend these views in the debates over Bill C-3. By first denouncing the content of alleged hate speech, these MPs could distance themselves from the ideas of hate mongers while defending the right of all citizens to state their views, even distasteful ones. The component of the proposed bill that was generally supported by all MPs was the genocide provision, which prohibited acts that intentionally promoted the “physical destruction” of an identifiable group.¹² One of the lone critiques of the genocide provision came from Créditiste René Matte (MP for Champlain) who, ironically, argued that while the provision was noble, it too would lead to a dangerous “slippery slope” in which “we would have to charge ourselves with having caused, in a large measure, the genocide of the Indians and Eskimos, because, from a moral standpoint, these peoples have practically been destroyed by our action during a number of years” (Hansard 1968–1972, 17 November 1969, 891).¹³ Matte’s argument was not taken seriously, however, and the genocide provision was the one proposed amendment to the Criminal Code that had almost complete support in the House. Progressive Conservative MP Eldon Woolliams (Calgary North), who acted as the party’s Justice critic, went so far as to propose an amendment to Bill C-3 after it returned from committee, asking members to strike the two hate provisions completely from the bill, leaving only the genocide provision (5530–5533). The amendment motion was unsuccessful, but it did reflect that fact that the hate provisions, and not the promotion of genocide, were at the center of the opposing argument.

When examining the collective responses of the PC and Créditiste MPs to the hate provisions, and their opposition to Bill C-3, four main claims emerge: (i) that the bill was an unnecessary and unjustified violation of freedom of expression and other fundamental freedoms; (ii) that individual rights were the cornerstone of human rights protection in Canada, and that the bill threatened these rights by prioritizing the rights of minority groups; (iii) that freedom of speech and expression were the most fundamental of all human rights; and (iv) that in violating these sacred rights, the Liberals were threatening Canadian democracy. There were, of course, some MPs who spoke more passionately in opposition to Bill C-3 than others, particularly in regard to the use of the bill as a tool by the Liberals to limit democracy.¹⁴ But even the more moderate MPs covered many of (if not all of) the themes listed above in their speeches, and there was tremendous overlap and consistency in the arguments made by PC and Créditiste MPs.

The first and most consistent argument in opposition to Bill C-3 from conservatives in the House was that the proposed law was an unjustified violation of freedom of speech. It was also clear in most speeches that this violation of rights was a “slippery slope” which led to the violation of associated rights of opinion, press, and association. PC and Créditiste members asserted that hate propaganda, while vile and distasteful, did not pose a sufficient threat to Canadian society to warrant a violation of free speech. Robert McCleave (PC MP for Halifax-East Hants) claimed that the Liberals were, “using a great deal of parliamentary puff to try to dispel things that largely do not exist” (Hansard 1968–1972, 6 April 1970, 5558). Several members, such as Philip Rynard (PC MP for Ontario’s Simcoe North), John Diefenbaker (PC, Winnipeg), Melvin McQuaid (PC, Cardigan [Prince Edward Island]), and Jack Horner (PC, Crowfoot [Alberta]) argued that hate propaganda and discrimination generally were on the decline in Canada (5649; 5685). Eldon Woolliams insisted that supporters of the bill had exaggerated the threat and prevalence of hate speech in Canada, always pointing to extreme figures like John Beattie, the self-described leader of the Canadian Nazi Party in the late 1960s, to generate fear. Woolliams argued that Liberal and NDP MPs referred to “crackpots like Beattie in Toronto who incite prejudice against immigrants and others” to justify the bill, despite the fact that Beattie’s neo-Nazi activities had very little support in Canada (5547). He argued further that Canada was “not faced with a clear and present danger that warrants such sections on hatred and contempt” and asked why the government would “waste dynamite when you can use insect powder?” (5533; 5547). For Woolliams, even if Canada did have a problem with hate propaganda, existing laws were sufficient to deal with it. Other MPs pointed to existing sedition, defamation, and libel laws, and cited case law to argue their points.

Not only were the new hate provisions proposed in Bill C-3 deemed unnecessary, but there was a common sentiment in the Opposition that they were likely also unconstitutional. This argument was based largely on the 1960 Bill of Rights, which had been developed and adopted under John Diefenbaker’s PC government. This association between the PC Party and the expansion of rights and freedoms in Canada was highlighted by Diefenbaker himself and he was clear in stating that Bill C-3 would “contravene the Bill of Rights very directly and definitely” (Hansard 1968–1972, 9 April 1970, 5683). Don Mazankowski (PC, Vegreville [Alberta]) agreed, declaring: “I suspect this bill is unconstitutional and will so be declared the first time it is tested in the courts. I base this view not only on the Canadian Bill of Rights but also on our whole constitutional and political tradition” (5785). The idea that restrictions of free speech were contrary to Canadian law and Canadian political tradition was supported by many other conservative members, such as William Skoreyko (PC, Edmonton East) who argued that the new law would “be at variance with the Bill of Rights and other legal precedents” (5653). During the third reading of the bill in April 1970, Woolliams called for Bill C-3 to be referred to the Supreme Court as a result of the recent decision in the R. v Drybones case. In Drybones, the Court declared a section of the federal Indian Act unconstitutional because it violated Section 1(b) of the Bill of Rights. Woolliams claimed that the Drybones decision would render Bill C-3 “nonsense” (5795). In asserting that Bill C-3 violated the freedom of speech of individual Canadians, and that it was likely unconstitutional (though this later proved to be untrue), conservative MPs were using their own language of rights to challenge Liberal policy. Not only did they present the bill as out of step with Canadian law and tradition, they claimed it was in conflict with the ideas of some of Canada’s best-known civil libertarians, Frank Scott and Walter Tarnopolsky.¹⁵ MPs like Woolliams quoted extensively from these two scholars, highlighting their opposition to hate speech laws, and driving home the argument that the bill was not in line with existing fair practices and anti-discrimination laws (Hansard 1968–1972, 17 November 1969, 887).

Although both camps used a discourse of rights, the debates over the proposed hate speech laws revealed very different understandings of these rights between the majority of Liberal and NDP members and those on the political right. In arguing that Bill C-3 was an unjustified violation of freedom of expression, conservative MPs talked about rights in a way that reflected their understanding of rights as belonging to individuals and not groups. Réal Caouette (MP, Temiscamingue [Quebec]), party leader of the Créditistes, went so far as to claim: “the individual is the most important element in any organized society, and he has rights, and duties also, that must be respected and show respect for others” (Hansard 1968–1972, 7 April 1970, 5581). A similar sentiment on the primacy of individual rights was asserted by members such as Cliff Downey (PC, Battle River [Alberta]), Eldon Woolliams, and Robert Thompson (PC, Red Deer) (5650; 5531; 5642). Thompson, who had been the leader of the Social Credit Party from 1961 to 1967, claimed that “to attack the rights of one man, is to attack the rights of everyone” (5642). Many conservatives framed their opposition to Bill C-3 entirely as a defense of individual rights. For example, for William Ritchie (PC, Dauphin [Manitoba]), the “principal task of the opposition in this Parliament is to guard against incursions on individual rights by our present government” (5605). He continued,

Any measures designed to protect groups within a society must take into account that the individual is paramount. Our fundamental and basic concern for the individual did not come about by chance or accident. It was bought at great price and sacrifice by all the generations that came before us … [T]he preservation of the sovereignty of the individual might be called our principal reason for being. (5605)

In his defense of individual rights, Ritchie effectively articulated one of the key understandings of rights present in the rights-talk aspect of the debate; that the group or minority rights protected in Bill C-3 undermined individual rights and, by extension, undermined Canada’s own tradition of rights as articulated in legislation such as the Canadian Bill of Rights.

Not only were individual rights exalted in the conservative rights talk of the 1960s, but certain rights were exalted above others, especially the customary civil liberties that had evolved out of the British tradition. At the top of this hierarchy was freedom of speech or expression. The hierarchy was reflected in how most MPs discussed freedom of speech. Woolliams claimed Bill C-3 would “destroy the greatest civil right enjoyed by any democracy,” free speech (Hansard 1968–1972, 17 November 1969, 884). Créditiste MP Matte described the right to free speech as “one of the most sacred and inviolable of rights” (892). Mazankowski also referred to freedom of speech as a “sacred” right while Hugh Flemming (PC, Carleton-Charlotte [New Brunswick]) called it “one of our most cherished liberties” (5658). Flemming invoked the war in his speech, reminding members of the House that “Freedom of speech is one of the four things that those gentlemen decided was precious when they met off the Atlantic coast during World War II. They were the things that people fought for and in some cases died for” (5658). In doing so, he reflected a conservative understanding of rights, one that prioritized the rights of individuals, and civil and political rights in particular.

The essential role of freedom of speech in a democracy was core to conservative arguments. Diefenbaker characterized the bill as a “slippery slope to silencing the voice of disagreement,” asserting that “discussion is necessary to decision” (Hansard 1968–1972, 9 April 1970, 5680, 5681). All opponents of the bill agreed that the hate literature being disseminated across Canada was vile and distasteful, but argued the only way to diffuse it would be to combat it through discussion and debate. McCleave claimed: “I think we are better off having the full spotlight focused upon these situations in a democratic country” (5560). Ged Baldwin (PC, Peace River [Alberta]) asked: “How is there to be an opportunity for the conflict of ideas and the clash of opinions if we are to be inhibited in the fullest expression of our views?” (5580). There was a latent argument in much of the conservative opposition to the bill that the restricting of speech and expression prevented a natural dissemination of ideas that was so central to democracy.

While some MPs were willing to tolerate a broad range of opinion in the public square, others warned that curtailing free speech might bring even more negative consequences. Jack Bigg (PC, Athabaska [Alberta]) postulated that “it is very dangerous to restrict freedom of speech, no matter how violent speech is, because there is a tremendous difference between violence spoken and violence acted. Sometimes I think violence spoken is a safety valve” (Hansard 1968–1972, 7 April 1970, 5615). Thompson went so far as to state that “it is impossible to have freedom of speech without having those who will use it for silly, irrelevant and evil causes. This may be a high price to pay, but it is the only true way to preserve the rights of individuals. No matter to what extent a man is wrong, he has the right to express himself” (5642).

Some MPs involved in the debate over Bill C-3 recognized that it reflected more than just a discussion on regulating hate propaganda, but centered on how rights and freedoms ought to be defined in Canada. Diefenbaker challenged the House:

Are we to define freedom as meaning the right to express only such views as are acceptable to the overwhelming mass of the people? That is not a very valuable kind of freedom. The essence of citizenship is to be tolerant of strong and provocative words. Liberty confers duties and responsibilities, one of its duties being to be tolerant of those who express views which may offend. (Hansard 1968–1972, 9 April 1970, 5681)

Here, Diefenbaker was explicit in asking other members to define terms such as freedom, citizenship, and liberty. New Democrat David Lewis, a strong advocate for the bill, responded. He argued,

The history of society is full of definitions of freedom, and they are used to serve whatever purpose people in society want them to serve. Appeals to freedom are as numerous, and frequently are as spurious, as quotations from the scripture that are used to satisfy and justify all kinds of acts. (5688)

In this exchange, Diefenbaker and Lewis highlighted both the differences in how members of the House defined rights and freedoms and their knowledge of the ways in which concepts such as freedom, liberty, and rights could be used by different groups to further different agendas.

The last theme in conservative opposition to Bill C-3 was a concern that the bill represented an overreach of government power, one that undermined the democratic process and the rule of law. This argument exposed a broader concern or ideological position about the growth of the power and role of the state and its agents in Canada that was evident in many of the speeches in opposition to the proposed bill, but particularly among the far right in the PC Party and the Créditistes. Many of these conservative MPs pointed to the way in which the bill would give enhanced power to the Ministry of Justice, and the Attorney General specifically. Créditiste Matte argued that the Bill would effectively give the Attorney General the power to define hatred, predicting that “anyone who dislikes his definition will end up behind bars” (Hansard 1968–1972, 17 November 1969, 891). Others, like PC MP Pat Nowlan (Annapolis Valley), pointed to the powers given to the police in the bill regarding search and seizure, arguing this was a dangerous infringement on the legal rights of due process and other fundamental freedoms (5707). Generally, there was agreement that the bill was an attempt by the Liberal government to gain power and to further entrench its ideals in Canadian society. Skoreyko described the bill as a “tool” to be used by government and claimed it would “do nothing but suppress news” (5787) Others argued that it would lead to a police state or a dictatorship; Stan Schumacher (PC, Palliser [Saskatchewan]) warned that the bill was a “device being used by the prime minister to bring the people of this country to heel” (5787).

The real threat of Bill C-3, according to this argument, was the way in which it could be used by government to suppress democracy in the name of human rights and to push forward a liberal hegemony designed to maintain the power of the Liberal Party. Conservative MPs like Nowlan argued that many historical figures, from Jesus to Martin Luther and Martin Luther King, Jr., could have been convicted under the terms of Bill C-3 (Hansard 1968–1972, 9 April 1970, 5707). Woolliams finished the debate during third reading of the bill by stating his position in a dramatic way: “As long as I am in parliament and changes are necessary, I will incite people to obtain reforms. If, as a result, I cause a breach of the peace and some attorney general wants to lay a charge, I am prepared to be a martyr because one could not give a man a better cause” (5797).

Conclusion

The hate speech provisions that were added to the Criminal Code in 1970 have since then resulted in only a handful of charges.¹⁶ Throughout the 1970s and 1980s, however, anti-hate speech provisions expanded into provincial and federal human rights law. With the adoption of the Canadian Charter of Rights and Freedoms in 1982, several high-profile cases made their way before the Supreme Court to test whether regulations on hate speech were constitutional. While the Court upheld the Criminal Code provisions as a reasonable violation of freedom of expression, the 1990s witnessed a growing backlash against restrictions on free speech. Since 2000, the debate has shifted away from the Criminal Code; among political parties in Canada there is broad support for the laws, with few conservatives seriously advocating any amendments to the provisions in the Code.¹⁷ The focus is instead on human rights statutes. For example, critics of Section 13 of the Canadian Human Rights Act—which prohibited the communication of statements likely to expose persons to hatred on the basis of a prohibited ground of discrimination—used many of the same arguments as those raised in 1969 to successfully lobby the federal government in 2014 to remove the section from the act (Lunny 2017, ch. 5). Yet, new challenges posed by internet communication and the rise of social media, along with alarm over the violence associated with hate propaganda globally has led to a renewed movement in Canada to reintroduce Section 13 into federal law. Clearly, the debate over the appropriateness of regulating hate speech continues.

Hate speech laws highlight the tensions inherent in the human rights framework. In placing rights in conflict with one another—in this case, individuals’ right to express themselves freely versus a group’s right to not to be subject to hateful expression that is likely to breach the peace—these laws expose different understandings of how rights shape the relationship between individuals, groups, and the state. Discussions over Bill C-3 focused on proposed amendments to the Criminal Code, but in doing so they reflected competing perspectives on the purpose and role of rights and freedoms within Canadian society and of the role governments should play in promoting and protecting these rights. Although these debates were influenced by global developments, they centered on questions of how to deal with the rise of hateful expression in Canada in the context of Canada’s own political, legal, and social history.

The fact that the debate was so clearly split along party lines reveals the very partisan nature of this conflict in the late 1960s, including conceptual differences over the meaning of equality and speech. While at various times and in various jurisdictions, conservative and right-of-center politicians and parties did support and even advocate for the expansion of anti-discrimination laws and human rights codes, a more nuanced study of the substance of the laws enacted and of the debates that led to their adoption reveals a distinctly conservative approach to human rights. In their opposition to Bill C-3 from 1968 to 1970, PC and Créditiste MPs exalted the civil rights of individuals—historical rights evolving from British tradition that emphasized the right to live free from government interference—over a conception of rights that emphasizes protection from harm, even if that protection required government regulation.

The debate over Bill C-3 also revealed different understandings of the “threat” posed by hateful speech, and by its regulation. For Liberal and New Democratic MPs, the greater threat was the promotion of hatred itself and the impact that it would have on groups already experiencing high levels of discrimination based on their race, religion, or ethnic background. Protection from the harm caused by this hatred warranted what was seen as a negligible limitation on free expression. Conservative MPs took a fundamentally different stance, understanding the individual right to free expression to be a sacred historical right that could only be infringed upon in the most serious of cases. Therefore, the genocide provision of Bill C-3 was acceptable to the vast majority of PC and Créditiste MPs because it prohibited deliberate acts taken to kill or destroy, physically, members of a group. In contrast, the hate provisions attempted to regulate forms of expression, which for some amounted to freedom of opinion, expanding the power of the state over the individual in ways that threatened the very nature of rights and freedoms. This was not considered a negligible restriction of rights. Instead, conservatives had a very different conceptualization of how hate should be confronted or regulated in the public sphere in a democracy: they encouraged open discourse, which they saw as vital to the democratic process, and only to be regulated when it inspired acts of violence not expressions of hate. Certainly, conservatives were not the only Canadians who opposed Bill C-3, but in their opposition they used their own discourse of rights, one which placed individual freedom at the center, and which viewed civil and political rights as most central to democracy.

In the debates over Bill C-3, PC and Créditiste MPs presented themselves as the true defenders of individual rights. They challenged the Liberal vision of rights as one in which the state wielded rights as a tool to use against the individual, and placed minority demands over the freedoms of the individual. In this way, conservative politicians presented themselves—and implicitly anyone who might be charged under these laws—as victims of a liberal hegemony which violated their rights. With rising concerns over hateful speech, there has been a resurgence of calls to strengthen Canada’s hate speech laws and the arguments of the 1960s have resurfaced. Presenting those in favor of stronger hate speech laws simply as advocates of greater human rights, and those who oppose them simply as anti-rights fails to recognize the very real tensions that exist within Canada’s human rights system about how to define rights, and how to preserve them. Understanding the nuances of the conflict over hate speech laws and its long history not only helps provide context for these contemporary discussions, it promotes a deeper and more critical examination of rights themselves.

Acknowledgments

The author is grateful to Kevin Anderson, Raymond Blake, Matthew Hayday, Kassandra Luciuk, Daniel Manulak, and Asa McKercher for their comments and recommendations on earlier versions of this article.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Funding

This article draws on research supported by the Social Sciences and Humanities Research Council and Toronto Metropolitan University’s Faculty of Arts.

Notes

1. Bill C-3 was adopted during the 28^th Parliament, which was a Liberal majority government. At the time of the third reading, there were 155 Liberals, 72 Progressive Conservatives, 22 New Democratic Party (NDP) members, 14 Ralliement Créditistes, and one independent member sitting in the House of Commons. The strength of the Liberal majority (and NDP support for the bill) assured its passage, which may account for the low voter turnout.

2. For the purpose of this article, the terms “political right” and “conservative” will be used to broadly represent the two main federal parties that occupied the right wing of the political spectrum: the Progressive Conservatives and the Ralliement Créditiste (the French-speaking wing of the Social Credit Party). While there were significant policy differences between these two parties, in the debates over the proposed hate speech laws, their language and arguments were quite in line with one another.

3. Here, “liberal discourse of rights” refers to the combination of classical ideas of rights as entitlements that empower and protect individuals by nature of their humanity and the more modern concept that all individuals have an equal right to concern and respect, which was espoused by the Liberal Party in this period.

4. Heaman explains these historical rights as those “rooted in historical relations” (specifically constitutional developments that defined the rights of Englishmen and British subjects) rather than more abstract ideas about rights (2009, 156).

5. Ducharme presents this as an extension of the broader conflicts in the age of Atlantic revolutions.

6. One exception to this has been the study of Progressive Conservative leader John Diefenbaker. See, for example, McKercher (2016).

7. For example, see Globe and Mail (1960); Winnipeg Free Press (1960).

8. Under the Pearson government, bills S-49 (1967) and S-5 were introduced into the Senate. These bills were virtual copies of the proposed legislation in the Cohen Report.

9. In the House of Commons, David Orlikow continued to submit his Post Office Act amendment (Hansard 1965–1968, 24 January 1966, 140), with two new proposals submitted in 1967: Bill C-35, which proposed amendments to the Criminal Code to prohibit the oral and written publication or distribution of hate literature, by MP David Lewis (139), and Bill-C-164, which proposed amendments to the Criminal Code to include a new provision for group defamatory libel, introduced by MP Jack Nesbitt (3767). All three of these were replaced by Bill-3.

10. Under s. 281.1(1) anyone who advocates or promotes genocide is guilty of an offense punishable by five years’ imprisonment. Under s. 281.2(1) anyone who communicates statements in a public place and thereby incites hatred against an identifiable group where such incitement leads to a breach of the peace is guilty of an indictable offense punishable by two years’ imprisonment or a summary conviction offense. Section 281.2(2) makes it a crime to communicate, except in private conversation, statements that willfully promote hatred against an identifiable group. These sections of the Criminal Code have been renumbered to Sections 318(1), 319(1), and 319(2).

11. Of the 65 speeches given in relation to the bill, 31 came from PC or Créditiste members.

12. In Bill C-3, “genocide” was defined as “acts committed with the intent to destroy in whole or in part any identifiable group, namely: (a) killing members of the group, or (ii) deliberatively inflicting on the group conditions of life calculated to bring about its physical destruction.” (Hansard 1968–1972, 17 November 1969, 881).

13. It is important to note that Matte saw this as a limitation of the genocide provision, not a strength.

14. The most vocal opponents of the bill during the debates were Eldon Woolliams (PC), René Matte (Créditiste), Don Mazankowski (PC), and Réal Caouette (Créditiste).

15. Scott and Tarnopolsky (1964; 1981) were Canada’s most recognized experts on rights and the Canadian constitution at this time. Both were strong advocates of individual rights, and neither was associated with conservative politics, so the use of their views in the debates helped opponents of Bill C-3 to argue this was not a partisan issue.

16. In the first few decades after the adoption of the law, it was rarely used. In 1979, the Ontario Court of Appeal overturned the conviction of two French Canadians who had distributed pamphlets containing anti-French statements when the defense successfully argued that this was done to expose prejudice in the community, not “willfully” promote it. In separate decisions in 1990, the Supreme Court of Canada upheld the convictions of schoolteacher James Keegstra (for teaching antisemitic propaganda to his students) and Don Andrews (for spreading antisemitic and anti-Black propaganda for the Nationalist Party of Canada). Since 2000, the number of cases has risen, but marginally. Between 2007 and 2020, only 14 cases applied the hate speech provisions of the Criminal Code. See Provost-Yondo et al. (2020, 47).

17. The small number of cases, and the high burden to prove intent in those cases that have proceeded, have largely invalidated the argument that the Criminal Code provisions would be a “slippery slope” leading to widespread misuse of the laws.