The law falls mainly into two areas: one section — 318 and 319 of the Criminal Code — covers hate propaganda. The other, section 718, deals with sentencing for crimes based on bias or prejudice.
The hate propaganda sections added sexual orientation — though not trans — as a protected category in April 2004, after a long fight by gay NDP MP Svend Robinson.
The law states that: “Everyone who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”
The more generally used section states that: “Everyone 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 an indictable offence and is liable to imprisonment for a term not exceeding two years; or an offence punishable on summary conviction.”
The law also bans “wilful promotion of hatred.”
“Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years; or an offence punishable on summary conviction.”
The law defines “identifiable group” as “any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.”
But the law also provides a wide range of exemptions, including the defence that “if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject… or 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.”
In other words, as we saw with churches and same-sex marriage, religious hatred of queers is still legal.
The sentencing provisions of section 718 — which have included sexual orientation since 1996 — state that: “A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender… [including] evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.”
But in order for homophobia to be used as a ground for sentencing, a Crown attorney has to ask for an offence to be considered a hate crime, and a judge has to accept the application. And most times, before a Crown would make such an application, the police would have to have treated the case as a hate crime during their investigation.