An appeal got underway in Federal Court in Toronto this week scrutinizing Section 13 of the Human Rights Act, which says it's discriminatory to spread hate messages online.
The case pits human rights advocates against defenders of free expression.
Meanwhile, federal Tories are seeking to kill the provision via a private member's bill in the House of Commons.
But those who keep an eye on incidents of hate and the so-called white pride movement are worried if those provisions of the act are killed, Canada could see more incidents like the setting on fire of a Filipino man on Vancouver street.
Police recently announced the arrests of two men in their 20s and a 30-year old in connection with that assault and three others against minorities in Vancouver. Investigators allege the trio are members of Blood and Honour, a white supremacist group linked to violence around the world.
All three suspects have provincial court dates on Dec. 23.
"Even after individual members are arrested for these kinds of degenerate crimes, they have a persistent ability to attract new recruits," said Richard Warman, who is one of three parties in the appeal case and contends Section 13 must stay intact.
The Internet now disseminates the racists' rallying call, he said.
"That's why it has to be a constant concern not just for police, but the community and the government as a whole," he said in an interview.
Statistics Canada found Canadian police forces reported a rise of 42 per cent in hate-based incidents in 2009, as compared to 2008, and more than half were based on race. The year before, there was a 35 per cent jump. The figures are the most recently available and were released in June.
Warman has used the provision on 15 occasions to mount successful complaints, mostly against people accused of agitating online for ethnic cleansing.
But his record was turned on its head in 2009, when the Canadian Human Rights Tribunal ruled in favour of a right-wing extremist webmaster.
The tribunal, which only handles cases referred to it by the Canadian Human Rights Commission, found Marc Lemire exposed homosexuals and blacks to hatred and contempt by publishing an article entitled "AIDS Secrets."
But the tribunal also ruled it was unconstitutional to penalize him.
The commission is seeking the appeal. Eight other groups are participating as interveners, including B'Nai Brith Canada and the B.C. Civil Liberties Association.
"The BCCLA takes the position that the Internet is a democratic medium where hateful expression should be published so as to provide a forum for its refutation and denunciation," the association said in a news release.
The group was to make its oral arguments in the case Wednesday.
But regardless of the judicial outcome, Warman and other anti-racism experts contend the most wrong-headed move is being made in Ottawa.
A private member's bill introduced earlier this session by Alberta Tory backbencher Brian Storseth seeks to repeal the legislation.
Though private member's bills rarely make it into law, in November, Justice Minister Rob Nicholson stood up in the House and urged all MPs to support the motion, saying it's "not an appropriate or effective means of combating hate propaganda.
"We believe the Criminal Code is the best vehicle to prosecute these crimes."
A spokeswoman for Nicholson declined comment while the case is before the courts.
Other proponents of free speech want the law axed too.
"The best defence against so-called 'hate speech' is not government enforcement of vague prohibitions, but an educated and alert citizenry and vigilant and responsible media," Charles Foran, president of PEN Canada, said in a news release.
In 2008, a University of Windsor law professor sounded the death knell in a report specifically commissioned by the human rights commission. He argued the criminal code is a sufficient prosecution tool.
"We must develop ways other than censorship to respond to expression that stereotypes and defames the members of an identifiable group," he said in his report.
Warman, however, contends there is a "near impossibility" of securing criminal charges for hate propaganda, and that supporters of the bill "are in effect arguing for no controls on hate speech in Canada."
Vancouver-based Alan Dutton helped lobby for the 1996 creation of the B.C. Hate Crime Team that brings together law enforcement, Crown prosecutors and provincial bureaucrats to combat hate crimes.
Dutton argues abolishing the law will embolden hatemongers to re-organize and strengthen the white nationalist movement in Canada.
"The danger here is that they're going to believe that they have fertile ground now," said Dutton, who chairs the Canadian Anti-Racism Education and Research Society.
Several high-profile cases of hate-based violence overseas and in Canada further fuel his concerns, he said.
In Regina, resident Terry Tremaine — who claims to lead the unregistered National-Socialist Party of Canada — defied a court order in early November to remove offensive material from his own website.
A neo-Nazi march was held last March in Calgary.
"When they see the groups are able to mobilize so massively in Europe, they're going to feel they can do the same thing here in Canada," Dutton said.
A vote on the bill is expected in early spring.