True or not, a statement that merely "offend[s] the victims" is not hate speech
There are two categories of "hate speech" prohibitions:
- the Criminal Code offences of "public incitement of hatred" or "wilful promotion of hatred" found at section 319(1) and (2);
- hate speech provisions in various human rights codes, one of which was at issue in the case you linked in your question, Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11.
For all these kinds of hate speech (no matter whether the expression is true or factual) it is not enough that the expression "offends someone." Expression that merely offends someone is not hate speech.
In Whatcott, the Supreme Court found that the wording of the human rights code that would have caught expression that merely "ridicules, belittles or otherwise affronts the dignity" of a person was unconstitutional. The section was only constitutional when read down to only capture expression that exposes or tends to expose a person to hatred on the basis of a prohibited ground.
And the Court reiterated that "hatred" is to be equated with "detestation" and "vilification." This is not merely "offending the victims":
In my view, “detestation” and “vilification” aptly describe the harmful effect that the Code seeks to eliminate. Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimize them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience. Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims.
This same standard has been applied in the context of the Criminal Code offences. See R. v. Keegstra, [1990] 3 SCR 697.
True statements can be the basis of hate crime or human rights code violations
As for whether a true statement could be the basis of a hate crime under s. 319 or prohibited by human rights codes: yes. The Supreme Court has confirmed that there is no constitutional requirement for truth to be a defence. Truth is not a defence for Criminal Code, s. 319(1) nor under human rights code prohibitions on hate speech. Truth is a defence for s. 319(2).
The Court in Whatcott said:
To the extent that truthful statements are used in a manner or context that exposes a vulnerable group to hatred, their use risks the same potential harmful effects on the vulnerable groups that false statements can provoke. The vulnerable group is no less worthy of protection because the publisher has succeeded in turning true statements into a hateful message. In not providing for a defence of truth, the legislature has said that even truthful statements may be expressed in language or context that exposes a vulnerable group to hatred.
And while Parliament has provided a defence of truth for s. 319(2) (not s. 319(1)), the Court has said this is not constitutionally required:
Truth may be used for widely disparate ends, and I find it difficult to accept that circumstances exist where factually accurate statements can be used for no other purpose than to stir up hatred against a racial or religious group. It would seem to follow that there is no reason why the individual who intentionally employs such statements to achieve harmful ends must under the Charter be protected from criminal censure.
