Archive/File: orgs/canadian/canadian-jewish-congress/marches-to-modems/mtm-005-01 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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