The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1997/03/30

5.2 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 (see Appendix G).

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 offenses. The first,
prohibits communicating statements in any public place which
incite hatred against an identifiable group where such
incitement is liely to lead to a breach of the peace. The
second branch of section 319 (ie. 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 wilfill
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 wilfill 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 (eg. 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 andthe 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 wilfiully 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 (ie. everyone who wilfully promotes a
statement, tale or news that he knows is false and causes or
is likely to cause injury or ischief to a public interest).
During the 1980's Zundel was convicted twice by a jury of
his peers in relation to his distribution of Did Six Million
Really Die?, an antisemitic 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 Appendix C).

The fact that hate propagandists such as Emst 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
spiraling incidents of hate propaganda in the early 1990's
and the launching of the socalled Metropolitan Toronto
Police "Hate Crimes Unit", only one person was charged with
violating section 319(2) by the Hate Unit. 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 attomey-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 offenses motivated by hatred against an identifiable
group, which do not involve hate propaganda. Such offenses
can range from mischief (e.g. defacing synagogues or mosques
with antiJewish or Muslim epithets), to the most vicious
assaults, to murder.

Throughout the early 1 990's hate crime of this type
continued to nse 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 (see Appendix H). In effect, section 718.2
of the Criminal Code makes hatemotivation in the commission
of any offense an aggravating factor upon sentencing.

For example, prior to the enactrnent 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 comer drugstore. Therefore,
section 718.2 pays due regard not only to the property
darnage 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,
crirninal 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.

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