An excerpt from From Marches to Modems: A Report
on Organized Hate in Metro Toronto, 1997
by Steven H. Shulman
Editor, Bernie Farber, Canadian Jewish Congress
Republished with permission
Hate Activity and the Law: An Introduction
A natural question which arises is how to define the abstract concept of "hate". After all, hate in and of itself is an emotion rather than a concrete act. The emotion of hate often results in specific acts being carried out.
Webster's Ninth New Collegiate Dictionary defines hatred as follows: "prejudiced hostility or animosity (old racial prejudices and national prejudices)."
The context provided by legislation and its application to actual events is often more helpful in defining terms. That view is certainly applicable to defining the concept of hate. There are a myriad of definitions which have been used by the courts in various instances. One of the more helpful definitions and that which carries the greatest weight in legal terms is the one developed by the Supreme Court of Canada in the criminal case of R. v. Keegstra (1990) 3 S.C.R. 697.
Hatred connotes an emotion of an intense and extreme nature that is clearly associated with vilification and detestation. It is an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.
Although the definition in the Keegstra case involved the section of the Criminal Code of Canada which acts as the criminal sanction against the most extreme forms of hate propaganda (i.e. wilful promotion of hatred against an identifiable group), the definition is relevant to the entire class of hate-related cases.
There is a clear progression implied in the Supreme Court's definition of hatred. The definition deals with an emotion which can result in specific harmful or concrete acts (e.g. discrimination, violence, etc.) against identifiable groups in our society. Essentially, implicit in the definition is a continuum from hate propaganda, to discrimination, to physical violence in the worst case scenario. As with all other facets of human interaction, the law does not provide a solution to the problem of hate in our society. World history and current events teach us that humanity has not yet evolved to the point where it has produced a fool-proof solution to hate. Rather, legal remedies are among the tools available in the constant struggle against hate moving our society away from freedom and democracy. Other tools include education and the promotion of social interaction. However, it should be stressed that the law has an important role to play, most often in situations where education or the promotion of social interaction are non-starters.
A common criticism levelled against legal remedies is that they are reactive rather than pro-active. Legal remedies are most often applied in response to conduct which has already occurred, be it the dissemination of hate propaganda or criminal acts motivated by hate against minority groups, although there are notable exceptions. However, the importance of legal remedies goes above and beyond a solely punitive function.
Legislation, be it in the form of criminal sanctions, human rights law, immigration law, or judge-made law (i.e.. common law) sends a message to our multicultural society about values of decency and tolerance accepted as the norm by our Government and, by extension, the vast majority of Canadians. Particularly in a diverse city like Toronto, the mere existence of legal sanctions to deal with those who would seek to attack identifiable groups because of their race, religion, ethnicity, beliefs, or other factors provides a great measure of comfort to minority groups. These remedies send the message that this society is different than those which have historically allowed abuses against minority groups, often with the state's help. In Canada, the state, through the law, plays a role in fighting such acts. Certainly, the legal remedies available need to be used to underscore that message.
Finally, the existence of legal remedies which are available to combat hate act as a deterrent against hate activity. While it is impossible to scientifically measure how many individuals are deterred from promoting hatred or carrying out criminal acts or human rights violations motivated by hate, as a result of existing legislation, anecdotal evidence provides some support for the argument in favour of deterrence. The best anecdotal evidence of the deterrent effect of anti-hate legislation in the Metropolitan Toronto area is provided by the rise and fall of local "hate telephone lines", discussed below.
Criminal Code Provisions
(a) Hate propaganda - incitement
The most notable group of provisions in the Criminal Code which address hate activity are those which impose a criminal sanction against advocating or promoting genocide and wilfully promoting hatred against an identifiable group, in addition to that which empowers a judge to seize hate propaganda. The applicable Criminal Code provisions are sections 318, 319 and 320.
Section 318 prohibits advocating genocide against an identifiable group. Genocide means intent to destroy in whole or in part any identifiable group by killing members of the group or deliberately inflicting on the group conditions of life calculated to bring about its physical destruction. Identifiable groups are any group distinguished by colour, race, religion or ethnic origin. To date, there have been no charges laid under this section in Ontario.
Section 319 deals with two separate offences. The first prohibits communicating statements in any public place which incite hatred against an identifiable group where such incitement is likely to lead to a breach of the peace. The second branch of section 319 (i.e.. section 319(2)) is the provision which has been used more extensively and has been seen as the primary criminal provision available to combat hate propaganda. Section 319(2) prohibits the wilful promotion of hatred against an identifiable group, by communicating statements other than in private conversation. The maximum sentence available under this provision is two years imprisonment.
There are a number of full defences available to a person charged with wilful promotion of hatred. These defences include establishing the statements were true; made in good faith; relevant to any subject of public interest and made for the public benefit if on reasonable grounds the accused thought the statements to be true; or if in good faith the accused intended to point out for the purpose of removal matters producing or intending to produce feelings of hatred towards an identifiable group in Canada (e.g.. the statements were made to educate people about racism and anti-racism).
A key requirement of section 319(2) is that the consent of the Provincial Attorney General is required prior to the laying of a charge. A number of individuals and groups active in anti-racist causes have argued that this aspect of the provision should be removed because it makes it relatively difficult to lay a charge as compared with other Criminal Code provisions. There have also been arguments that the categories of groups included in the provision should be expanded and available defences reduced.
Any change in section 319(2), however minor, could threaten the constitutionality of the provision. The Supreme Court of Canada has clearly held that the provision is constitutional. The Court made its pronouncement in R. v. Keegstra and the companion case of R. v. Andrews (1990) 1 C.R.(4th) 266 (S.C.C). Keegstra was charged with violating the section due to his 14 years of teaching students that the Holocaust never happened and that there exists an evil Jewish conspiracy determined to control the world.
In Keegstra, the Supreme Court held that while the provision offends the freedom of expression guaranteed in section 2(b) of the Charter of Rights and Freedoms, it is a reasonable limit on that freedom pursuant to section 1 of the Charter. Significantly, the Court found the provision to be a reasonable limit on freedom of speech largely due to the safeguards against abuse of the section contained in the numerous defences offered and the requirement to obtain the Attorney General's consent. It is likely that any change to the section would result in another test case going forward to the Supreme Court of Canada over the course of many years, effectively nullifying the impact of the provision in the interim.
Contrary to popular belief, Ernst Zundel has never been charged with wilfully promoting hatred against an identifiable group. Rather, in 1983, Sabina Citron, a Holocaust survivor, laid a private complaint pursuant to section 181 of the Criminal Code, colloquially known as the false news law (i.e. everyone who wilfully promotes a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest). During the 1980s Zundel was convicted twice by a jury of his peers in relation to his distribution of Did Six Million Really Die?, an anti-Semitic Holocaust denial tract. However, in August 1992, in a 4-3 decision, the Supreme Court of Canada declared that the "false news law" was unconstitutional as, in the majority's opinion, the limit to free speech contained in this section was too broad, and therefore could not be justified pursuant to section 1 of the Charter. (See R. v Zundel (1992), 75 C.C.C. (3rd) 449 (S.C.C.))
The fact that hate propagandists such as Ernst Zundel or others of his ilk have not been charged under section 319(2) speaks more to the lack of enforcement than to the effectiveness of the section. While use of the section should be reserved for the most serious of hate propaganda cases, there is no doubt that it is underused. Despite spiralling incidents of hate propaganda in the early 1990s and the launching of the so-called Metropolitan Toronto Police "Hate Crimes Unit", only one person was charged with violating section 319(2) by the Hate Unit. (Metro Police Service's Hate Crimes Unit did assist Durham Regional Police and the Ontario Provincial Police in a two-year investigation that led to hate promotion charges being laid against two Durham men in October 1996. The Attorney-General gave consent to the charges being laid 8 months after the completion of the police investigation.) In August 1993 the Attorney General of Ontario gave consent to the commencement of proceedings against Elisse Hategan, a former Heritage Front member. The charges were withdrawn when it became clear to police that Hategan was not responsible for wilfully promoting hatred, but instead following a change of heart was warning some anti-racist activists in her school about being targeted by hate propaganda produced by the Heritage Front.
It is not clear whether any responsibility lies with police or the Department of the Attorney-General for the dearth of charges laid under this section in recent years. What is clear is that there has been a lack of adequate resolve at the enforcement levels of responsibility, which has rendered section 319(2) much less of a deterrent than it should be.
The last in a trio of anti-hate provisions, section 320 of the Criminal Code permits a judge to authorize the seizure of any publication that he/she deems, on reasonable grounds, to be hate propaganda.
(b) Hate motivation - sentence enhancement
The hate propaganda sections of the Criminal Code, described above, recognize the need in a free and democratic society to reasonably balance the right of citizens to freely speak their mind without fear of retribution, together with the right of ethnic, racial, and religious minorities to be protected from harmful vilification. Canada's anti-hate laws provide a fence of protection for minority groups against hate propaganda while at the same time ensuring that, as much as possible, freedom of speech is honoured and guaranteed. However, other forms of hate crime are not caught by the hate propaganda sections. These are Criminal Code offences motivated by hatred against an identifiable group, which do not involve hate propaganda. Such offences can range from mischief (e.g. defacing synagogues or mosques with anti-Jewish or Muslim epithets), to the most vicious assaults, to murder.
Throughout the early 1990s, hate crime of this type continued to rise in a most dramatic fashion, particularly in the urban areas of our country. In August 1994, Detective Sergeant Wayne Cotgreave of the Metropolitan Toronto Police Hate Crimes Unit noted that there had been a 51% increase in hate crimes reported in the Metro Toronto Area, compared with the previous reporting period.
In 1995 legislative proposals to reform sentencing practices in Canada, popularly known as Bill C-41, received royal assent. A portion of Bill C-41, now found in the Criminal Code as section 718.2, provides for longer sentences for hate-motivated crimes. In effect, section 718.2 of the Criminal Code makes hate motivation in the commission of any offence an aggravating factor upon sentencing.
For example, prior to the enactment of the section, there was no requirement that a court order a more serious sentence for somebody who spray-painted "die Jews" on a synagogue as compared to a perpetrator who spray-painted a happy face on the wall of a corner drugstore. Therefore, section 718.2 pays due regard not only to the property darn age in such a case, or physical pain and injury suffered as a result of an assault, but also takes into account the intense emotional pain suffered by members of the entire targeted community.
The categories of hate-motivation covered by the section include 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. As a result, the categories included in the provision are even broader than those set out in the hate propaganda sections of the Criminal Code. Contrary to the attacks by some critics on Bill C-41, which characterized the legislation as a "gay rights provision", the new section merely recognizes the fact that in relation to targets of violent hate crime, members of the gay community have been singled out for vicious assaults and even murder in recent years. The inclusion of sexual orientation among the listed categories for hate motivation recognizes that while all Canadians are entitled to equal protection under the law, criminal acts which are specifically intended to terrorize the gay and lesbian community in Canada have increased in number and, ultimately, have become a societal problem.
The inclusion of sexual orientation does not confer special rights on any community but rather helps to ensure that people are not targeted as the victims of crime based solely on their sexual orientation. This safeguard should ultimately better promote equal rights for all Canadians.
The Canadian Human Rights Act
Section 13 of the Canadian Human Rights Act (CHRA) makes it a violation of the CHRA to communicate telephonically or to cause to be communicated any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination. The prohibited grounds of discrimination are religion, race, colour, national or ethnic origin, age, sex and marital status, disability, and sexual orientation.
Essentially, section 13 has been used to combat what are popularly termed telephone hate lines which involve a pre-recorded hate message, prepared by a group or individual, to which any member of the public could dial by telephone. In many instances, these telephone hate lines have been used by hate groups as a way to expand membership.
Among the sanctions available in response to a violation of the section is a cease and desist order in relation to messages which cause hatred or contempt against identifiable groups. In the event that such orders are not complied with, criminal contempt of court proceedings are available and have been used.
Other differences between section 13 and the Criminal Code provisions are that the CHRA provision applies to messages of hatred or contempt transmitted only by telephone lines. Given that section 13 is not a criminal provision, the standard of proof required is less than that necessary for a conviction pursuant to section 319 (2) of the Criminal Code. Under section 319 (sub 2) the violation must be proved at the criminal standard, beyond a reasonable doubt. In contrast the less stringent civil standard of proof on the balance of probabilities is the bench mark to show a violation of section 13. In addition, section 13 deals not just with promotion of hatred but with "hatred or contempt". It is clear that the promotion of contempt under section 13 requires the promotion of less severe dislike than that necessary for "promotion of hatred", as contemplated in the Keegstra decision.
Section 13 of the CHRA has played an important role in limiting the dissemination of hatred and contempt against identifiable groups in the Metropolitan Toronto area. Between 1991 and 1994 there were at least 7 taped telephone "hotlines" spreading hate messages, with many of those operating at the same time. Complaints pursuant to section 13 were filed with the Canadian Human Rights Commission in relation to hate lines in British Columbia, Manitoba and Ontario.
The most notable was a complaint to be considered by the Commission against the Heritage Front, operators of the most notorious hate line in this city. In 1994, before a Human Rights Tribunal, Wolfgang Droege and the Heritage Front accepted a consent order admitting that its messages were likely to expose persons to hatred or contempt and agreed to cease and desist from transmitting the messages. Soon after the consent order, the Federal Court Trial Division found Wolfgang Droege (leader of the Heritage Front), Gary Schipper (i.e. the voice of the hate line), Kenneth Barker and the Heritage Front guilty of contempt of court for continuing to play hate messages on a newly established Equal Rights For Whites hate line. All of the individuals involved served time in prison and the Heritage Front was fined $5,000. (The Front never paid the $5,000 fine)
Within a short time following the contempt of court conviction only one hate line remained in the Toronto area. It is clear that the use of the legislation available to combat hate lines was effective, not only moderating the message of the hate line which continued, but also serving as a deterrent against the continued operation of other such lines in Toronto. Indeed, Kevin Lew, who ran a Ku Klux Klan hate line in 1992, admitted that the threat of criminal contempt of court proceedings was enough to make him hang up his hate line. (Unpublished interview with Kevin Lew by Toronto Sun reporter Bill Dunphy, July, 1992)
Beside hate telephone lines, section 13 has the potential of being employed against hate messages on the Internet. The reason for section 13's applicability is that Internet messages are transmitted via telephone lines. While no case has yet been completed, applying section 13 to the Internet, one highly publicized case is in its early stages. The Toronto Mayor's Committee on Race Relations and a Toronto Holocaust survivor, Sabina Citron, have commenced companion complaints against Ernst Zundel in relation to material posted on his web site. The case is currently at a preliminary stage.
Certainly, there are potential problems in the application of section 13 to the Internet. In some cases, demonstrating Canadian Human Rights Commission jurisdiction may be difficult given that many hate messages, via the Internet, that find their way into Canada originate from beyond this country's borders. In addition, there are many difficult evidentiary issues including the responsibility of individuals who may not physically post hate messages on the Internet but have their work posted by another person or group. Despite the hurdles, section 13 certainly holds promise.
The Ontario Human Rights Code and Civil Remedies
The applicability of the Ontario Human Rights Code to hate activity, is limited, since the prime focus of the legislation is discrimination in the areas of employment, services, accommodation and contracts. However, section 13 of the code prohibits the publication or display of notices, signs, symbols or other similar representations that indicate the intention of the person to infringe or incite infringement of the code right. One of the code rights is "equal treatment ....without discrimination". Potentially, such hateful symbols as swastikas in the work place or in housing environments could violate the code.
Prohibited grounds of discrimination in the Ontario Human Rights Code are race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, receipt of public assistance (in accommodation) and record of offences (in employment).
The potential for other civil legislative remedies for hate activity
In recent years there has been much talk and some movement toward establishing a civil cause of action in response to hate propaganda in particular and hate activity in general. In fact, current Ontario Attorney General, the Honourable Charles Harnick, brought forward a private member's bill initiating such legislation while in opposition. Mr. Harnick later withdrew the bill.
On the surface, such legislation would seem to be advantageous to those involved in the fight against racism and anti-Semitism. Many believe such legislation would provide an additional tool to combat hate activity. Further, the ability to civilly sue hate groups could potentially cease the operations of hate groups found liable as they would be hit in the pocketbook. Further, a civil proceeding could be initiated by targeted groups in those cases in which police and governmental authorities are either unwilling or unable to prosecute.
On the flip side, there are many criticisms of the development of such legislation. Some of the arguments in opposition to the statutory creation of a new tort with respect to hate activities are as follows:
Many anti-racist groups take the position that dealing with hatemongers is the state's responsibility. In particular, the legislative tools already available under both the criminal law statutes and human rights code should be used to their full potential.
Such civil legislation might create the erroneous impression that responsibility for dealing with racist extremists has shifted from the government and human rights commissions to private citizens and organizations. The potential of creating such a perception, in and of itself, provides sufficient reason for objecting to the creation of new civil legislation, with questionable constitutionality and impact, which would have the effect of neutralizing government action in this area.
There is potential for a large number of frivolous actions initiated by hate groups and members of hate groups against anti-racist organizations which seek to fight the promotion of racism and anti-Semitism. Responding to such frivolous actions would sap anti-racist organizations of their resources in the form of time, energy and money.
The focus on civil actions would not create greater access for parties without financial resources. It is well recognized that access to the civil litigation system, despite the potential of availability of legal aid, is much easier for those with ample financial resources. Thus it is far more equitable to maintain the state's sole responsibility to deal with hatemongers through the use of criminal law or human rights provisions.
Public support for the whole idea of combating hate group activity could be seriously eroded by an onslaught of civil actions dealing with hate-related activities. Further, the ability of every group and individual to launch civil actions in response to alleged hate-related activities is much more likely to be abused than currently available criminal and human rights sanctions. Thus the potential for stifling legitimate free speech would be that much greater with legislation creating a civil right to sue.
It would be exceedingly difficult for target groups, such as the Jewish or Black communities to prove pecuniary damages. In the event that fines are set out in any proposed legislation to get around this problem, a new difficulty will be created providing for criminal sanctions flowing directly from a civil proceeding. In British Columbia there has been a civil cause of action for hate activity in effect since 1981. The provision has not been used. Possible reasons for the disuse of the legislation are the high costs of privately commencing civil litigation and the uncertain level of damages available.
Alternatives to creating a new tort include amending the Ontario Human Rights Code to prohibit a broader range of hate activity and to permit individuals or groups to file such complaints with the Ontario Human Rights Commission. An amendment broadening the Human Rights Code to take into account hate-related matters could be made in conjunction with providing the Commission with greater resources and, if necessary, restructuring the Commission so that complaints could be handled more expeditiously.
Responding to hate-related matters which fall outside the ambit of the criminal law, through an expanded Human Rights Code, would: maintain state responsibility for hate related matters; be less problematic constitutionally; and be more equitable for complainants on a cost basis as compared to the civil litigation process.
Customs and Immigration
One of the roles of Revenue Canada, Customs, Excise and Taxation, is to administer the Customs' tariff, which prohibits the importation into Canada of material considered to be obscene, treasonable, seditious, hate propaganda, or child pornography as those terms are treated in the Criminal Code.
Hate propaganda being imported into Canada can be detained and/or seized by Canada Customs. Upon seizure, Canadian importers are advised in writing that the material has been examined and that importation is prohibited. The importer then has a right to appeal the decision, initially to a senior Customs officer and then to the applicable Deputy Minister.
In practice, Revenue Canada, Customs, Excise and Taxation, prints a list of material prohibited by the Importations Directorate every three months. Included in the list are numerous publications, including computer diskettes, magazines, audio and video tapes which are prohibited from importation to Canada based on their "hate propaganda" classification. Also any person, not only customs officials or police, may alert the Prohibited Importations Branch (of Canada Customs) of material being imported to Canada that may fall under the "hate propaganda" classification.
Section 19 of the Immigration Act complements customs regulations by addressing indirectly the need to protect our borders from foreign citizens who come to Canada for the purpose of promoting hatred against identifiable groups.
Under section 19 there are two potential avenues available to bar hatemongers from Canada. The first possibility is banning admission on the basis of a criminal record. In fact, a significant proportion of well known hatemongers outside of Canada have been convicted criminally either for their hate propaganda activities or other criminal offences recognized by both the foreign jurisdiction in which they were convicted and Canadian law. On such a basis, individuals can be barred from entering Canada.
Individuals can also be barred from Canada if there are reasonable grounds to believe that they will commit one or more offences punishable by way of indictment under any Act of Parliament. For example, a well-known hatemonger from abroad, scheduled to appear in Toronto for a public address, could be barred from this country if there were reasonable grounds to believe the person would violate section 319 of the Criminal Code. (i.e. willful promotion of hatred against an identifiable group) while in Canada.
The provisions included in section 319 of the Immigration Act have been used quite effectively in limiting extreme hatemongers' access to Canada. In recent years, individuals such as Holocaust denier David Irving, Khalid Abdul Muhammed, Tom Metzger, and hate rock bands have been barred from the country.
Deportation remains an option in the event such a person is able to initially evade immigration officials and gain entry into Canada.
Conclusion
There are additional legal means potentially available to those in society be it government, groups, or individuals seeking to counter hate activity. Possibilities include using the punitive sections of the Income Tax Act in response to hatemongers who don't accurately report the income they derive from the sale of hate propaganda. There is also potential legal recourse available at common law to conference facility owners, be it hotels or convention centres, who unwittingly rent out space to hate groups for group meetings or public gatherings.
Despite recourse to these alternative legal remedies, the primary remedies in Ontario for combating hate activity have been described. To date, the effectiveness of these provisions have, for the most part, not been curtailed by the courts. Rather, it has been the failure of the authorities to seize the opportunity provided by existing legislation, particularly that aimed at hate propaganda, which has limited the deterrence value of such provisions. Once again, as in other facets of human activity the law is not a complete solution but is certainly part of the answer.
Steven H. Shulman is the Associate Director of Community Relations and Assistant Legal Counsel to the Canadian Jewish Congress, Ontario Region.
