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Harold Davis |
Frank Dimant |
Allan Adel |
Ruth Klein |
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Harold Davis |
Frank Dimant |
Allan Adel |
Ruth Klein |
University of Winnipeg Professor Colin Goff laments “the absence of any national mechanism with which to collect statistics” on hate crimes, and comments:
“Aside from statistical data gathered by some municipal police forces and human rights groups such as the League for Human Rights of B’nai Brith … no obligatory collection of hate crime statistics currently exists to determine the scope of such activity.”
Recommendations have been made in various fora for federal-wide hate crime statistics in order to ensure that data about the incidence of hate-motivated crime in Canada is accurate. It has been noted that a central problem in the classification and recording of hate crimes is the lack of a standardized definition of hate. This has been identified as a key part of any national anti-hate strategy.
At present, no one definition of hate crimes exists in Canada. However a number of major metropolitan forces have moved towards the setting up of hate crime units and the collection of hate crime statistics.
Toronto and York Region police services have established tracking mechanisms for hate crimes and outreach to community groups which provide a good model for other police services to follow. In fact, the Toronto Police Service prepares a highly detailed Hate/Bias Crime Statistical Report though its Hate Crime Unit, with considerable attention given to differentiating between victim groups. York Regional Police has established an alert system called Project Ready that ensures that hate crimes are quickly brought to the attention of the relevant officers.
The Calgary Police Service, through its Community and Youth Services Section, reports on Criminal Offences by type of Hate/Bias. Edmonton is currently engaged in duplicating the Calgary model. Police forces in Saskatchewan have assigned officers to track hate crime cases and the Regina Police Force has now started to produce an annual report. In the Maritimes, officers have been designated to focus on hate crimes, but no report is currently available.
In Montreal, there is at present no official classification process for delineating hate crimes when reporting harassment, vandalism, assault or threats, though formation of a "hate crime team", as opposed to a "hate crime unit" was announced in 2004. There was, therefore, difficulty in obtaining information on hate crimes in 2004.
British Columbia was one of the first areas to have a dedicated hate crime unit, and was working to develop a standardized definition, integrated database and common enforcement policies. However, cut-backs in funding have led to difficulties. Hate crime officers were unable to provide statistics for 2004 and have indicated that no up-to-date database of incidents is available for the last two years.
Some police forces in Ontario, in Durham Region for example, were unable to provide any feedback whatsoever as to hate crimes in their area, while in London, the hate crime unit has had the issue of youth added to its mandate. Police forces in Hamilton, Peel and Ottawa keep statistics, but do not publish them. Given the different criteria and reporting mechanisms used by various law enforcement agencies and community groups, and the comfort level of victims who may prefer to use one reporting agency over another, data collection is therefore a complex process.
Discussions with police forces across Canada during the preparation of this Audit, reconfirm the need for uniform definitions. The information from the above jurisdictions indicates different thresholds being used by the various forces, which will make comparison difficult, an issue that does not just affect the police and the justice system. That is why the Federation of Canadian Municipalities has asked the federal Government to consider the creation of a national hate crime data collection strategy. Other groups have also called for such measures.
In one example of the type of inconsistencies that arise when hate crime definitions are not standardized, the Hamilton police force reported 24 vandalism incidents involving swastikas that were not labeled as antisemitic because no obviously "Jewish" connection was found. On the other hand, other police forces, including York Regional Police, took a broader approach and did report similar graffiti as hate-biased incidents against the Jewish community.
The League has warned of the importance of recording such incidents. The experience of other countries shows us the importance of recognizing the antisemitic nature of these incidents and not dismissing them lightly, as was the case with early indications of a resurgence in antisemitism in France. There is a concern that along with an increase in antisemitic incidents has come an increasing desensitization. As noted in the 2003 Audit, what was once thought of as unthinkable and outrageous is now in danger of being viewed as commonplace and routine. It appears that in some jurisdictions front-line police are not recognizing the hate-based nature of swastika-laced graffiti, nor their specific applicability as a hate symbol used against the Jewish community.
This continues a trend noted in the 2003 Audit. In one particularly glaring example, an investigating officer suggested that the swastikas found on a Jewish person’s mailbox could well be meant as a symbol of peace, since that is the origin of the symbol before it was used by Nazi Germany. As well, a few police units indicated that street graffiti containing antisemitic content would no longer be recorded as hate crimes, not because the philosophical underpinnings of the definition have changed but because of the frequency of the reports.
There is certainly a need for all the major police forces in Canada to have dedicated hate crime units that can handle the increasing number of cases, with trained staff who are knowledgeable enough to recognize the hallmarks of a hate crime. Prosecution for Criminal Code hate crime offences requires the consent of the Attorney General. Unless police forces have dedicated units that are sensitized to the issues and receive the necessary ongoing training, they are unlikely to be able to collect the required evidence to support a prosecution. It is also crucial to have dedicated hate crime Crown prosecutors, well-versed in hate crime legislation, in each jurisdiction.
Public announcements in October 2004, heralding stronger measures to fight hate crime in Canada, were welcomed by all stakeholders in the process. However, there has been little concrete in the way of follow-up so far.
i) KEY CRIMINAL PROCEEDINGS
Both the legal and the human rights systems were used during 2004 to access protections for victims of hate-related activity, with varying measures of success. The events of 2004 reinforce the need for strong implementation and coordination of anti-hate provisions, which the League has been recommending for some time.
As then Foreign Minister Bill Graham commented on the growth of antisemitism at home and abroad during the OSCE Conference on antisemitism last year:
"Canada has had to confront the reality of disgraceful attacks on our Jewish community, including hateful graffiti, vandalism, the desecration of cemeteries and the firebombing of a Jewish elementary school.
These trends are deeply disturbing to a country such as Canada. They have instilled great concern in the Jewish community and led to soul-searching among all of our citizens committed to ensuring that our country continues to be a model of pluralism and mutual respect."
Such statements must obviously be followed up by real action. However, of the 857 incidents recorded in 2004, only 13 resulted in charges.
The person charged with perpetrating the April 5, 2004 firebombing of the United Talmud Torah Jewish Day School (UTT) was charged with arson and, on January 18, 2005, he was convicted and sentenced to 40 months imprisonment (the provision carries a maximum of 14 years). Hate, as an aggravating factor, was considered at sentencing as set out in the guidelines of section 718.2 of the Criminal Code.
In August of 2004, the League for Human Rights had written to the provincial Attorney General requesting that two additional charges be considered. The first of these is the wilful promotion of hatred contrary to section 319(2) of the Canadian Criminal Code:
"Every one who, by communicating statements other than in private conversation, wilfully promotes hatred against any identifiable group".
This was requested in light of the note found at the crime scene which stated:
"Here is the consequence of your crime and your occupation. Here is the response to your crimes and your occupation. Here are the results (the response) to your assassinations. Here is where you are being led by the terrorist Ariel Sharon. Today our target was an empty building. Our goal was to simply sound the alarm without causing death. But this was only the beginning. If your crimes continue in the Middle East, our attacks will continue. We are not targeting Quebec. We are targeting you Israelis and Zionists. The next time we will hit you more strongly. Watch yourself. The Brigades of Sheik Ahmed Yassin."
This chilling note, combining hate and terrorist threats in the most shocking of manner, was evidently directed at the school children as well as the broader Jewish community in Montreal. Jews as a group were thus accused of criminality, an accusation based on race, religion, or ethnic origin. For the author of the note, the phrase "Israelis and Zionists" was just another way of saying "Jews", terminology echoed in many other recorded incidents.
The note, on its own, should have been recognized in the charges as promotion of hatred against Jews. The fact that there was, in addition, a firebombing did not somehow decriminalize the note or neutralize the incitement to hatred in the note.
The second charge the League asked the Attorney General to add was mischief against religious property. As part of the anti-terrorist legislation, the Criminal Code was amended under section 430(4.1) to add the offence of mischief against religious property:
"Every one who commits mischief in relation to property that is a building, structure or part thereof that is primarily used for religious worship, including a church, mosque, synagogue or temple or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin".
Hate motivation was a constituent element of the firebombing. The League argued that the provision should be interpreted in such a manner as to not frustrate its intended purpose - even if schools were not specifically listed in the protected categories as the League had originally requested. The fact is that to the vast majority of the public such a building would be seen as a religious institution akin to a synagogue. It was certainly one where religious services were an integral part of the building's function.
As argued by the League, while arson as charged is a serious offence, not charging the accused under the hate crime provisions outlined above sent a message minimizing the seriousness of what happened. Clearly, there was a message of hate conveyed by the bombing. The harm caused, as noted in the victim impact statements submitted on sentencing, clearly went beyond the physical to cause a deep sense of fear and foreboding in the greater Jewish community.
In another key incident, Oral Vrba, a 29 year-old man with a history of mental illness, was charged with the hate crime of wilfully causing damage to the synagogue in St. John’s, Newfoundland. The charges arose from an incident in April 2004 when he smashed the windows of the building. It marked the first time hate crimes legislation was used in the province. In addition, Vrba was accused of uttering death threats to the president of the synagogue and the Jewish community. At trial on November 4, 2004, he was found not to be criminally responsible for his actions because “he was incapable of appreciating the nature and quality of the acts or of knowing they were wrong”. The presiding judge found that the crime was hate motivated, though he concluded that Vrba was mentally ill at the time he committed the offences. Vrba was remanded to a mental institution and ordered to undergo psychiatric treatment. His social worker has requested anti-hate sensitivity training for him, based on the League's Taking Action Against Hate program.
Three individuals in the Toronto area charged with vandalism-related charges were sentenced as well. Several other cases are still before the courts, including three individuals - one adult and two youths - who have been charged with multiple hate crime and vandalism counts in the rash of antisemitic incidents in Toronto in March 2004. In Alberta, police have laid hate crime charges in connection with material posted on the web.
Cases such as the UTT firebombing inevitably awaken the debate as to the appropriate length of sentencing, and recall the League’s past recommendations for fixed sentencing guidelines on speech offences. In 1995, the Canadian Parliament passed legislation that does provide sentencing guidelines for judges. One of those guidelines is that racial hatred as a motivation for a crime is to be considered an aggravating factor for sentencing purposes. (See Appendix C for applicable criminal provisions.) A crime of violence motivated by racial hatred is therefore more likely to receive an increased sentence. However, the problem remains of imposing substantial sentences for hate speech offences alone.
In the vast majority of cases reported to the League, no perpetrator is identified against whom to lay charges. In over one-third of the cases, no criminal charge under Canada’s Criminal Code would apply. To the frustration of many reporting their experiences to the League, harassment such as name calling, even where there are repeated episodes, does not amount to a crime, unless “criminal harassment” can be proven. However, the limitations of the law are exacerbated by the apparent reluctance to apply the existing hate crime laws where they are certainly applicable. In a number of the 2004 cases, the provincial Attorney Generals, who are given an overseeing role under the Canadian Criminal Code, have refused to press hate crime charges.
Perhaps the best example is a case that dragged on with no resolution throughout 2004, with a decision announced only in early 2005. A BC-based Arab community newspaper, The Miracle, published a piece by American Edgar Steele, which accused Jews of responsibility for all the major wars and misfortunes of the world. A complaint to police resulted in a decision months later not to lay hate crime charges on the basis that "intent" to incite hatred (mens rea) could not be shown on the part of the newspaper. When the article appeared, Liberal MP Joe Peschisolido, who in the past had placed ads in the paper, was quoted as saying, "I was shocked and outraged when I actually read the article." Meanwhile, the paper had been distributed to mosques, as well as other locations, across the Lower Mainland. The resulting perception that material of this nature can - on a technicality - be disseminated with impunity, does much to create an environment in which steadily escalating types of antisemitism are tolerated.
Similarly, a complaint against the Alberta Arab News was dismissed. This related to concerns over a series of articles that disparaged Jewish community and political leaders and regurgitated Holocaust denial. Given these decisions, it would appear that, at present, there are no effective provisions that would cover this type of sustained fixation on denigrating the Jewish community and ridiculing or belittling its activities or concerns. Although most provincial human rights codes do not prohibit the publication of hate speech, three provinces are notable exceptions. Such provisions could provide a model for the expansion of other provincial codes, as well as federal legislation on the scope of hate speech. Section 7 of the British Columbia Human Rights Code provides:
Discriminatory publication
7 (1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that:
(a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, or
(b) is likely to expose a person or a group or class of persons to hatred or contempt.
Section 18 of the Manitoba Human Rights Code provides:
Discriminatory signs and statements
18 No person shall publish, broadcast, circulate or publicly display, or cause to be published, broadcast, circulated or publicly displayed, any sign, symbol, notice or statement that:
(a) discriminates or indicates intention to discriminate in respect of an activity or undertaking to which this Code applies; or
(b) incites, advocates or counsels discrimination in respect of an activity or undertaking to which this Code applies;
Section 14(1)(b) of the Saskatchewan Human Rights Code, is even broader and provides:
14(1) “No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:
(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground” .
Such provisions could be relevant in cases where a paper - or other media outlet - chooses to publish or otherwise disseminate negative comments about a minority community.
In addition, amendments to the Canadian Criminal Code have been recommended by the League - along the lines of the German legislation - to make it clear that the hate crime offence encompasses Holocaust denial. Such a provision could constrain the ability of publications to disseminate Holocaust denial with impunity, whether in a foreign language or in English, but it would need to be "much more finely tailored" than the former Criminal Code false news provision struck down as unconstitutional.
A complaint lodged by the League in 2003 against individuals who displayed signs near Parliament Hill accusing Jews of murder was also dismissed. As noted in the 2003 Audit:
"Recognizing that the Attorney General must carefully balance the chance of success against the need to prosecute, it is clear that the standard is set so high that many cases of hate propaganda are left outside the provision. Many victims are therefore excluded from the full protection of the law. Furthermore, there are no clear criteria for determining when hate crime charges will be initiated, except the general understanding that hate crime prosecution is reserved for only the most extreme of cases."
Other hate crime proceedings have resulted in long delays. There has been no progress in the case of David Ahenakew, former chief of the Federation of Saskatchewan Indian Nations (FSIN), who was charged in 2003 in relation to comments he made in December 2002 to a Saskatoon Star Phoenix reporter that Adolf Hitler "fried six million Jews" to ensure they did not take over Europe. He went on to say: "That's why he fried six million of those guys, you know. Jews would have owned the goddamned world. And look what they're doing. They're killing people in Arab countries." His trial on hate crime charges has been postponed a number of times and is tentatively scheduled for April 2005. In addition, demands to revoke his prestigious Order of Canada have been refused to date, the Government indicating that it would await the outcome of the trial first. This has created the dangerous perception that an individual can publicly utter antisemitic comments and yet still continue to hold one of Canada's highest honours. The initial shock and condemnation at Ahenakew's remarks has apparently dissipated.
In addition, there has been remarkably restrained response in the October 2004 case of the Imam Sheikh Younus Kathrada of Vancouver’s Dar Al-Madinah Islamic Society, who was reported to have preached in a taped lecture on the Society's website that Jews were the "brothers of the monkeys and swine" and that “Once again they’ve shown their treachery; once again they’ve shown that they are cowards and that they cannot be trusted.” He is also reported to have urged Muslims to fight and kill Jews in what he termed an "offensive jihad" and to have stated: "I have no problem calling the Christians and the Jews and those who are not Muslim kuffar [unbelievers] and if they die in that state they will abide in the hell-fire forever."
Police spokespeople have indicated that the investigation is ongoing, but so far there has been no decision reported. Meanwhile, Kathrada continues to retain his position, one of four directors of the Society, which has charitable status in Canada.
It was Muslims who first brought to light a pattern of anti-Jewish rhetoric that is reported to have begun at least two years earlier. As was noted when the October 2004 incident became public.
"B.C. Muslims have been trying for at least two years to silence what they call the 'grotesque' anti-Jewish views of radical Vancouver cleric Sheik Younus Kathrada.
A group of 20 Muslims signed a public letter in August, 2002, denouncing anti-Jewish remarks being spread by Sheik Kathrada's mosque -- calling on him and his followers to apologize for 'the harm you have caused to the Jewish people, Judaism, the Muslim community and the Islamic faith.' They were protesting strongly anti-Semitic writings in several 16-page newsletters published by Sheik Kathrada's mosque -- titled the Dar Al-Madinah D'Awah Letter."
The question remains of why it is taking so long for the authorities to act when those in Kathrada’s own community sounded the alarm long ago. Meanwhile, he continues to hold a position of influence in his community.
Police have recently announced their decision not to press hate crime charges against Dr. Mohammed Elmasry, engineering professor at the University of Waterloo and president of the Canadian Islamic Congress.
A furor arose over remarks he made about the targeting of Israeli civilians on the grounds that they serve in the Israeli Defence Forces at some time in their lives and therefore cannot be considered to be civilians entitled to protection from terrorist attacks. During a panel discussion on public television on October 19, 2004 entitled "What is a Terrorist?", Dr. Elmasry stated that, "Anybody above 18 is part of the (Israeli) army." The show's host, Michael Coren, followed with another question: “So everyone in Israel and anyone and everyone in Israel, irrespective of gender, over the age of 18 is a valid target?" "Yes, I would say," Dr. Elmasry responded. Interestingly, in a second version of the transcript being disseminated by a Muslim news outlet, the exchange has been modified by the use of qualifying phrases inserted in square brackets that appear to alter the thrust of his original comments. However, it was those comments that sparked the outrage of a fellow Muslim panelist at the time the remarks were made, as well of Coren, who has confirmed that Dr. Elmasry had been very clear during the discussion that he viewed Israeli civilians as “part of the Israeli army, even if they have civilian clothes." Dr. Elmasry also told the Globe and Mail in a subsequent interview that "Israel has a people's army and a draft and therefore they should be considered legitimate targets.”
The matter is still outstanding, with calls for a review of the police decision not to proceed with charges. The concern remains that Dr. Elmasry continues to hold a position of authority in what is considered a mainstream Arab/Muslim community organization. He also holds a position at a Canadian university, which gives him the opportunity to influence young minds. In addition, there was never any clarification that Dr. Elmasry did not include in his category of those who can be considered a legitimate target for terrorism either Israelis currently visiting or living in Canada - including Israeli exchange students or faculty members at his own university - or Canadians who have served in the Israeli Army. Meanwhile, in a recent article, Dr. Elmasry claims that - as a Canadian Muslim – he is being targeted by the Jews.
Students at the University have reacted with concern at the lack of action by administrators there. Petitions calling for Dr. Elmasry’s removal have been posted online. The chilling effect his remarks have had on the campus environment is best illustrated by the voice of students such as Tom Chervinsky, President of the University of Waterloo Israel Public Affairs Club, who stated:
“He’s a professor, not just a random guy. There are Jews here. There are Israelis, including me. He has created a poisoned atmosphere where we don’t feel safe. I don’t know how UW can expect Israeli and Jewish students to feel that UW remains a safe learning environment, given the fact that this individual has not been disciplined in any real or effective manner.”
Another student, Josh Snider, President of the Israel Public Affairs Club at nearby Wilfred Laurier University, reported that Elmasry has “created a lot of animosity”:
“Three members of my executive are Israeli and over 18. They personally feel threatened. A person in his position of authority shouldn’t have these hateful views. It’s very discouraging that the University is not prepared to do anything to reprimand him.”
This episode is disturbing not just because of Dr. Elmasry's comments about the use of terrorism against civilians. As noted in this Audit, a number of individuals who were responsible for anti-Jewish incidents in 2004 identified themselves as being from the Arab community. They were perhaps acting out their anger against Israelis by targeting members of the Jewish community in Canada. The concern is that remarks such as the ones by Dr. Elmasry - considered a responsible leader in his own community - will create a poisoned atmosphere that is likely to encourage these elements, as well as other groups with latent antisemitic tendencies, to strike out against Jews.
Hate on the Internet, and the ability to combat it in Canada, remains a real challenge. Police believe there are 4,000 sites on the Internet which propagate hate, and the most popular have a strong Canadian membership. Justice Minister Irwin Cotler, who has placed that figure at closer to 5,000, has promised stronger measures to fight cyberspace hate as part of his national plan against racism announced in October 2004.
Although, an accurate count of Canadian-based hate sites is not available, the number of complaints to police and the Canadian Human Rights Commission (CHRC) regarding such sites gives some indication of the ongoing scope of the problem. Canadian websites that have been the source of complaints to the Commission range from ethnic-related sites, for example, ukar.org, to left-wing site such as indymedia.ca, and sites run by far right and White Supremacist groups.
Complaints before the CHRC still outstanding from 2003 include a number of sites connected with White Supremacist/far right wing ideologies and groups, such as Freedomsite and World Church of the Creator (Canada) and their alleged leadership. An outstanding human rights complaint against Bell Canada and a website it provided to Tomasz Winnicki, a person then based in London, alleges that the website warned Jewish people, "We're coming for you . . . and your servile dogs too."
Hearings into complaints against the now defunct websites Canadian Ethnic Cleansing and Tri-City Skins and their alleged creators, James Scott Richardson of London and Alex Kulbashian of Toronto, concluded in 2004 with a decision expected in 2005. For the first time, the web hosting company was included in the complaint. In sending this matter to a hearing, a Canadian Human Rights Commission investigator ruled that the material posted on the websites, which allegedly included death threats to immigrants and racist jokes, posed a threat to ethnic groups. According to the complaint, Internet chat on these sites included discussion about shooting former Canadian Prime Minister Jean Chretien and blowing up government buildings and Jewish religious institutions. Much of the information presented at the Human Rights Tribunal came from earlier London police investigations
New complaints were also filed in 2004, including a complaint against the Canadian Heritage Alliance, an Ontario-based group under the alleged leadership of Melissa Guille, and also regarding the Western Canada For Us (WCFU) website that is allegedly operated by Glenn Bahr and Peter Kouba. Glenn Bahr also made the news last year in connection with rallies in Edmonton in support of Holocaust denier Ernst Zundel.
Police have made some effort to stem hate on the Internet as well. There were reports in 2004 indicating that both Edmonton and London police had initiated investigations regarding hate material posted on the web.
Enforcement of anti-hate provisions on the Internet remains difficult. Where a website shuts down, another host in another jurisdiction can be sought. The Zundelsite.org, which continues to operate out of the United States despite a CHRC ruling in 2002 that the vast majority of material posted was antisemitic, further highlights the difficulties. This underlines the difficulty in preventing hate material reaching Canadians from sites outside the country, and highlights the need for clear criteria to address such material on the Internet, as well as international co-operation and enforcement mechanisms.
iv) CASES RELATING TO THE CRTC
In 2004, controversy raged around the application by cable providers to include the Arab language channel Al Jazeera in their digital service. Despite numerous examples of hate speech broadcast by the Kuwait-based station, the Canadian Radio-Television and Telecommunications Commission (CRTC) ruled that the service could be included, provided the applicants met certain requirements - including steps to monitor all broadcasts for hate content. Although their application was successful, the cable providers expressed dissatisfaction with the responsibility thus placed on them. The League maintained that the decision to allow Al Jazeera into Canada was wrong on principle, and also argued that the CRTC’s suggested framework for oversight by the service providers was both impractical and inadequate.
However, the challenge of protecting our airwaves becomes even more serious when considering that, notwithstanding the CRTC caveat that puts the onus for monitoring on cable providers, Al-Jazeera is accessible in Canada through satellite and website connections with no oversight whatsoever.
As noted in the 2003 Audit, recent rulings by the Canadian Human Rights Commission (CHRC) have clarified its mandate to deal with hate material on the Internet. However, the responsibility for dealing with hate broadcast on television, radio, or even satellite when the signal does not originate in Canada, is less clear. For this reason, there is a need for standardized criteria to assess what action can be taken. These criteria should be part of our broadcasting code, and the same codes should be used by the Commission.
A key recommendation from the 2003 Audit is that hate speech jurisdictions need to be consolidated. Presently, hate by telephone and the Internet comes under the jurisdiction of the Commission, while television and radio comes under the jurisdiction of the CRTC. Hate by post comes under the authority of the Canada Post Corporation, but imported hate comes under the jurisdiction of Canada Customs and Revenue Agencies (CCRA). Indeed, a 1994 House of Commons Committee recommended that Justice Canada prepare amendments to the Canadian Human Rights Act to create one sole jurisdiction to hear complaints dealing with both the import and the export of hate propaganda, as well as its dissemination through the mail and on radio, television and cable services. The report recognized that the most appropriate authority would be the Canadian Human Rights Commission "which is already sensitive to and experienced with the issues of racism and racial discrimination".
However, the ability of the Commission to meet this challenge, never mind its existing workload, has been constrained by announcements in 2004 of budget cuts. This will inevitably put increased pressure on community-based human rights organizations, which will need to help the victims navigate the system, particularly given the cut-backs at the intake stage.
v) SUPREME COURT OF CANADA CASES
The League for Human Rights of B'nai Brith Canada intervened in three cases before the Supreme Court of Canada in 2004. Two of the cases have a direct impact on the development of jurisprudence surrounding hate crime in Canada. The third relates to interpreting freedom of religion as defined under the Canadian Charter of Rights and Freedoms.
In the first case, the Canadian Government sought to deport Leon Mugesera, a former Rwandan politician living in Quebec for over ten years as a permanent
resident. In seeking his deportation, Canada alleged that Mugesera had
incited genocide, murder and racial hatred against the Tutsi minority in a
1992 speech, and was therefore inadmissible to Canada due to crimes against
humanity and incitement to genocide.
The Federal Court of Appeal overturned a decision of the lower court, the
Federal Court Trial Division, and dismissed the deportation proceedings on
finding that the connection between the alleged speech and the murders was
not sufficiently direct to determine that a hate crime had been committed.
Together with PAGE Rwanda and the Canadian Centre for International Justice, the League was granted intervenor status at the Supreme Court of Canada on the appeal brought by the Government. A decision is expected in 2005. At issue is what constitutes hate speech. As David Matas, senior legal counsel for B'nai Brith Canada, noted in considering the broader importance of the case, "It isn't just about Rwanda, it's about whether Canada can be effective in protecting its borders from genocidal killers, criminals against humanity, mass murderers.” A motion by Mugesera to dismiss the proceedings, based on the allegation that members of the Jewish community had conspired with the Minister of Justice to ensure that the government launched the appeal, was struck down at the appeal hearing in 2004.
The second case was R. v. Krystopher Krymowski et al, commonly referred to
as the Roma case. The charges arose out of an incident in August 1997 when White
Supremacists demonstrated in front of a motel housing Roma refugee
claimants, with signs displaying racist statements such as "Gypsies out" and
"Honk if you hate Gypsies". In dismissing the charges, the trial judge refused to take judicial notice of the shared meaning of the terms “Roma” and “Gypsy”. The decision was upheld on appeal, but in a decision handed down in February 2005, the Supreme Court of Canada overturned the acquittals and ordered new trials. The decision was hailed by the League as strengthening hate crime prosecution in Canada. Legal counsels for B'nai Brith welcomed recognition of "the premise that hate should never be dismissed on the basis of a mere technicality." Furthermore, it was noted:
"This is an important case in terms of the legal ramifications of hate speech in Canada. It will be far more difficult in the future to play a game of words when the real issue is the impact of the hate on the targeted group. Today's decision reconfirms the workability of hate crimes legislation to meet its goal of protecting ethnic minorities in Canada."
In the third case, Syndicat Northcrest v. Amselem et al, the Supreme Court of Canada ruled that Jewish condominium owners in a Montreal building had the right to set up their own personal succahs, temporary religious huts that are constructed in celebration of the Jewish holiday of Succot. The League was an appellant in the matter following the initial refusal of the condominium corporation to allow observant Jewish residents to construct individual succahs on their own balconies. The Evangelical Fellowship of Canada, Seventh-day Adventist Church in Canada, and World Sikh Organization
of Canada also intervened in the case, recognizing that it has important ramifications for the interpretation of the guarantee of freedom of religion as set out in the Canadian Charter of Rights and Freedoms. Two contrasting interpretations of the requirements of Jewish law were presented by the two opposing sides. The Court essentially upheld the League's argument that the State should not be the final arbiter of religious dogma, but rather that it was a private matter which should be determined by each individual according to his or her own religious beliefs.