Should Hate Speech be Criminalized? Lessons from the Canadian experience in R v. Zundel and R v. Keegstra

There is a global trend toward increased use of criminal law to combat hate speech. In assessing this trend, one should be mindful of the experience of countries that have long had criminal laws targeting harmful expression. Canada is one such country. Using the leading Canadian cases of R v. Zundel and R v. Keegstra, this article argues that the Canadian experience suggests the criminal law is a flawed mechanism for countering harmful expression. This is so for at least three reasons. First, hate-speech prosecutions may undermine the group dignity and sense of inclusion of minority groups. Second, criminal laws against hate speech do not serve the primary objectives of criminal justice. Third, hate-speech trials may impede the search for truth, a fundamental purpose of the criminal process.