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Rochelle Wilner |
Frank Dimant |
Prof. Stephen Scheinberg |
Ruth Klein |
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Rochelle Wilner |
Frank Dimant |
Prof. Stephen Scheinberg |
Ruth Klein |
There are several protections available in Canada to victims of racism and discrimination. Under the Criminal Code of Canada, hate crimes involve one of two specific types of acts:
“Hate propaganda” (s. 318), i.e., advocating genocide — acts committed with intent to destroy in whole or in part any identifiable group (distinguished by colour, race, religion or ethnic origin.) Sexual orientation has just been added as one of the protected groups.
2) “Public incitement of hatred” (s. 319 subsection 1 and 2) i.e., promotion of hatred — inciting hatred against any identifiable group that is likely to lead to a breach of the peace.
The Criminal Code (s.718.2) provides that “evidence that the offence was motivated by 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” is an aggravating factor which can lead to a greater term of imprisonment. In 2002, this provision was used on appeal to increase the sentence of an individual convicted of fire-bombing a synagogue in Alberta.
The Canadian Human Rights Act is also relevant, specifically Part I which deals with proscribed discriminatory practices. Under section 13(1) of the Act, it is a discriminatory practice (proscribed discrimination) “to communicate telephonically or by telecommunication undertaking any matter likely to expose a person(s) to hatred or contempt by reason of being identifiable on a prohibited ground of discrimination” (race, religion, origin etc.).
Section 1 of the Ontario Human Rights Code provides for freedom from discrimination, that is, equal treatment without discrimination based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap, record of offences (in employment) and receipt of public assistance (in accommodation). The Canadian Charter of Rights and Freedoms also provides for such rights.
Under the new Anti-Terrorism Act xliv, (formerly Bill C36), introduced by the federal government in 2001, the Criminal Code was amended to provide for enhanced search and seizure provisions of materials relating to hate propaganda offences. A new offence under section 430(4.1) of the Criminal Code was also added regarding mischief against places of religious worship or religious property motivated by “bias, prejudice or hate based on religion, race, colour or national or ethnic origin”. This provision is as yet untested in the Canadian courts.
The Canadian Human Rights Act xlv was also amended by this to extend the prohibition against hate messages beyond telephone messages to include all telecommunications technologies.
If applied vigorously, these provisions should provide redress for a significant number of hate-related incidents, including those motivated by antisemitism, but they must be applied vigorously.
There are however, a number of problems with the current system and the protections afforded to victims of hate- related crimes, the first of which relate to data collection and under-reporting by victims.
Some effort has been made to improve police data collection and reporting. After consultation with several non-governmental agencies, including the League for Human Rights, Canadian Centre for Justice Statistics, a part of Statistics Canada has developed a pilot study to assess the feasibility of on-going standardized data collection. xlvi The Centre indicates that some sixteen police forces have units able to participate in and collect data under their pilot project. This study reinforces the League’s own findings that there is a need for uniform standards and definitions.
In the preparation of this year’s Audit, the League has found that similar incidents may be treated in markedly different way by different forces. For instance, whereas a police force in western Ontario refused to classify graffiti (“JEW”) found on a stop sign outside the house of a Jew — the only person of this religion in the neighborhood — as hate-related, a similar case in central Ontario was classified as a hate crime.
There were a number of criminal prosecutions dealing with hate-motivated crimes in 2003. The Brad Love case illustrates the point made above, that different jurisdictions may approach the same case in differing ways.
The reported incidents in 2003 included five individuals who repeatedly sent hate messages to Jewish individuals and organizations across Canada. One such prolific writer was a man named Brad Love, who took newspaper clippings, added handwritten messages, often antisemitic in content, and mailed them on a regular basis. Police officers involved in the investigation have indicated that there was evidence that Love used depictions suggestive of a Jewish organization for target practice. Such letters came to the offices of the League, addressed to its staff or volunteers on five occasions, and were brought to the attention of the local police, which did not consider them sufficiently serious to warrant action. Similar letters were sent to individuals in a neighboring region. The Police Chief in that area, also a recipient of one of Love’s letters, initiated an investigation that involved other police agencies and resulted in the perpetrator’s apprehension. Love was charged with numerous counts of wilfully promoting hatred and mailing obscene material. On pleading guilty, he was sentenced to 18 months in jail, followed by three years probation.
Hate crime charges were also laid in the case of David Ahenakew, the Saskatchewan aboriginal leader, who made antisemitic statements in December 2002. No trial date has yet been announced.
Other hate crime investigations are still underway, including two cases involving articles in Arab newspapers, one out of British Columbia and the second out of Alberta. In both cases, the editors are under investigation for including articles containing anti-Jewish remarks. In an Ontario case, Toronto police hate crime unit reports that a man has been charged with 15 counts of wilful promotion of hatred in connection with compact discs confiscated at one of a number of hate rock concerts held in 2003. xlvii Charges have also been laid in two cases in York Region in the Greater Toronto Area, which will be going to trial in 2004.
The provincial Attorney General refused to consent to hate crime proceedings relating to antisemitic signs posted near Parliament Hill in Ottawa in 2002. xlviii No full explanation was offered and the local police force indicated its disappointment.
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.
The difficulties in prosecuting individuals for hate-related activities is highlighted in the case of Alex Kulbashian, a former spokesperson for the Canadian Ethnic Cleansing Team (CECT), in relation to an alleged assault against a black man on public transit. At trial, he was convicted and sentenced under the Criminal Code’s enhanced sentencing provisions for hate-motivated crimes. However, in 2003, the Ontario Court of Appeal overturned his conviction due to evidentiary issues. Charges of “counseling to commit murder”, relating to material that had been posted to his website, were also dropped without any apparent explanation.
Criminal charges regarding the March 2002 assault on the streets of Toronto of Dr. Bernard Goldman, during an anti-Israel demonstration, were dismissed at trial after the judge found that the identity of the assailant could not be proven beyond a reasonable doubt. This case demonstrates the importance of advising victims of hate-motivated activity to record and keep as much evidence as they can.
In the 2002 Audit, the League included the tragic murder of Torontonian David Rosenzweig, a visibly orthodox Jew, as an antisemitic incident. On conclusion of the preliminary inquiry in 2003, the judge committed the accused, Christopher McBride, to stand trial on a charge of first degree murder. Although the judge stated that, in his view, "there is no evidence the accused planned and deliberated on killing a member of an identifiable group", he did acknowledge that there were elements of hate involved and noted in his decision that the Crown attorneys could bring up the hate crime issues again during trial.
As in most hate-related crimes, trying to determine the motivation of the perpetrator is a difficult impediment. Use of the Criminal Code as a tool to fight hate-related activity is therefore challenging.
Use of the human rights tribunal system as an alternative tool to fight hate-related activity continues to be a slow process. Complaints filed by the League for Human Rights of B’nai Brith Canada concerning articles posted to indymedia sites (Hamilton and Windsor) have not proceeded because the offending articles were removed following the complaint, an outcome the Canadian Human Rights Commission apparently found to be satisfactory. Other complaints regarding offensive websites are currently being considered by the Canadian Human Rights Tribunal, such as the complaint of Richard Warman involving Kulbashian and websites to which he has some connection.
Anti-Racism activist Matt Lauder recently concluded that the hate-related activity continues in Canada not because the government has neglected to take the appropriate steps to eliminate hate and encourage multiculturalism, but rather because “many Canadians remain apathetic about the issues of racism and discrimination and … this inaction creates an environment where hate can flourish.”xlix
However 2003 has not been without its good news either. A number of positive statements against antisemitism have been made, including a formal resolution by the Toronto City Council adopted on May 14, 2003 (see Appendix A). Senator Jerry Grafstein has initiated an investigation of antisemitism at the Senate level based on a resolution of the 2002 Berlin meeting of the Organization for Security and Economic Co-operation in Europe (OSCE) (see Appendix B). Discussion of his motion to refer this resolution to a standing committee for the Senate ensued throughout 2003, leading to its adoption in early 2004. Nine of the twenty members of the Canadian Council of Churches came together to make a strong denunciation of antisemitism on December 9, 2003 (see Appendix C).
In 2003 as well, the Government of Canada, with cross party support, announced a national Holocaust Memorial Day to build on what individual provinces had legislated in the past. This represents a significant blow to an active cohort of Holocaust deniers and hatemongers operating both in this country and worldwide.
The League has continued to offer its Taking Action Against Hate educational program to law enforcement agencies, school boards, public and private sector workers, teachers, students and vulnerable minority groups. A formal agreement with the University of Winnipeg has allowed the Taking Action Against Hate program to be included in its continuing education courses.
The League’s Women’s Interfaith Dialogue continues to bring women of all faiths together in dialogue and social interaction, as part of B’nai Brith Canada’s ongoing efforts to reach out to other religious and ethnic minorities. At the same time, the Black Jewish Dialogue has embarked on an innovative program that has young Muslim and Jewish puppeteers taking a play about diversity into Toronto-area schools.
Discrimination undermines fundamental human rights and constitutes a permanent threat to the integration of minorities, and other target groups. Problems of this kind cannot be handled with isolated provisions, but need simultaneous implementation of measures in a variety of sectors.
The constitutional and legal protections exist, but the political will must exist also. Legislation has to be enforced, but clear validation of human rights codes, tangible support for anti-racism education and ongoing encouragement of community outreach initiatives are necessary to supplement legal measures. Some specific recommendations follow.li
Recent rulings by the Canadian Human Rights Tribunal have clarified its mandate to deal with hate material on the Internet. However, the responsibility for dealing with hate broadcast on television or radio when the signal does not originate in Canada is less clear. If for instance, Al Jazeera is broadcast in Canada and at times broadcasts antisemitic material (as it has in the past), which is in breach of Canadian law, what recourse will there be for Canadian citizens? For this reason, we need a common framework for understanding the mechanisms of hate and the criteria we use to assess what action can be taken. These criteria should be part of our broadcasting code, as well as the codes used by the Canadian Human Rights Tribunal, as in the end, they may be judging the same content.
In relation to the Internet, the recommendations made at the 1999 International Symposium on Hate on the Internet hosted by B’nai Brith Canada’s Institute for International Affairs and League for Human Rights include the need to mandate certain requirements of Internet Service Providers (ISP’s) relating to their specific responsibilities.lii
The Canadian Radio Television Commission (CRTC) should be empowered to expand its oversight of foreign TV stations like Al Jazeera that may broadcast in Canada through satellite. Much of the concern about this issue centers on the fact that there is little scrutiny of foreign television for hate content, nor is there a requirement that these stations monitor and keep tapes in order that such scrutiny can take place.
Hate speech jurisdictions need to be consolidated. Presently, hate by telephone and the Internet comes under the jurisdiction of the Canadian Human Rights Commission, while TV and Radio comes under the jurisdiction of the Canadian Radio-television and Telecommunications Commission (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).
A House of Commons Committee has recommended that Justice Canada prepare amendments to the Canadian Human Rights Act to give the Canadian Human Rights Commission jurisdiction to hear complaints dealing with the import and export of hate propaganda, as well as its dissemination through the mail and on radio, television and cable services. The report stated:
“Canadians will be better served if there is one institution that has responsibility for investigating the dissemination of hate propaganda. The most appropriate place for such authority is in the Canadian Human Rights Commission which is already sensitive to and experienced with the issues of racism and racial discrimination.”liii
Most provincial human rights codes do not prohibit the publication of hate speech. Saskatchewan is a notable exception. The Saskatchewan Human Rights Code provides in section 14(1)(b):
“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. All the provincial human rights codes should have provision prohibiting the publication of hate material.”liv
The federal law on the scope of hate speech legislation needs expansion to include these provisions. The Saskatchewan prohibition on publication of incitement to hatred covers the following prohibited grounds: religion, creed, marital status, family status, sex, sexual orientation, disability, age, colour, ancestry, nationality, place of origin, race or perceived race, and receipt of public assistance [Section 2(1)(m.01)]. Federal law should have a similar scope, either through expansion of its lists or through a generic categorization such as the one found in the equality guarantee in the Canadian Charter of Rights and Freedoms [section 15].
No one definition of hate crimes exists in Canada, although a number of major metropolitan police forces have moved towards the creation of hate crime units and the collection of hate crime statistics. Sometimes, however, the criteria are over-broad and the statistics provided do not specify details within the categories of ethnicity, nationality, race or religion. In some places, there is at present no official classification process for delineating hate crimes when reporting harassment, vandalism, assault or threats against specific minority groups. In one jurisdiction, for example, the reason given for the absence of a classification system for such hate crimes is the surprising claim that they have no such problems in their area.
The collection of official hate crime statistics would not only help determine resource requirements, but would also indicate which groups are being targeted most often, and how best to deal with this issue in our communities. In addition, better information would help in evaluating the efficacy of both judicial and community-based responses. That is why the federal government needs to create a national hate crime data collection strategy.
All the major police forces in Canada should have dedicated hate crime units. Prosecution for the Criminal Code hate crime offences requires the consent of the Attorney General. Unless police forces have dedicated units which are sensitized to the issues and receive the necessary ongoing training, they are unlikely to be able to collect the necessary evidence to support a prosecution. Dedicated hate crime Crown prosecutors, well-versed in hate crime legislation, in each jurisdiction is also crucial.
Two of the four Criminal Code defences to the offence of wilful promotion of hate are unnecessary and should be removed. These relate to truth. The accused can be acquitted under Canadian law if either the person “establishes that the statements communicated were true” or “if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he [the accused] believed them to be true”.lv
In the case of R. v. Keegstra, the Supreme Court of Canada held that the offence of hate propaganda in the Criminal Code was constitutional and that the defence of truth was not necessary in order for the offence to remain constitutional. Mr. Justice Dickson said at the time:
“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 social 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.” lvi
The Criminal Code needs an amendment to make it clear that the hate crime offence encompasses Holocaust denial. The majority in the Zundel case at the Supreme Court of Canada, in the course of striking down the provision under which Ernst Zundel was convicted for wilfully and knowingly spreading false news causing public injury, referred to the German offence of Holocaust denial and said that it was “a much more finely tailored provision [than the Canadian Code false news provision] to which different considerations might well apply.” lvii
In 1995, the Canadian Parliament passed legislation that provides sentencing guidelines for judges. lviii One of those guidelines is that racial hatred as a motivation to a crime is to be considered an aggravating factor for sentencing purposes. So, a crime of violence motivated by racial hatred is more likely to receive a substantial sentence now that the law has passed. However, the problem remains of imposing substantial sentences for hate speech offenses alone.
Sentencing for hate crimes is overly light and does not provide an effective deterrent to the crime. Ernst Zundel was sentenced to a fifteen month jail term after his first conviction and to a nine-month jail term after a new trial and his second conviction. However, he served neither term, because of his successes on appeal.
Jim Keegstra was sentenced to a fine of $5,000 after his first conviction and to a fine of $3,000 after a new trial and his second conviction. The prosecution appealed the sentence after the second trial because they considered the punishment derisory. The Alberta Court of Appeal, in its fourth judgment on the side of Keegstra, rejected the prosecution appeal and upheld the sentence. The only modification was the addition of a one year suspended sentence plus two hundred hours of community service.
Donald Clarke Andrews and Robert Wayne Smith, both convicted of willful promotion of hatred against an identifiable group [i.e. under s. 319(2)], were sentenced to one year and seven months in prison, respectively. On appeal, the sentences were reduced to three months for Andrews and one month for Smith. John Ross Taylor was sentenced to one year in jail, served his jail term, and repeated his behaviour. He was sentenced to a second one-year jail term.
Racist organizations are not presently prohibited in Canada. That failure puts Canada in plain violation of Article 4(b) of the relevant UN Convention. The Supreme Court of Canada, in the case of Suresh, held that the provision in the Immigration Act, which allows for deportation based on membership in a terrorist organization, is constitutional. The implication of the judgment is that a prohibition against racist groups would also be constitutional.lix