Legislation to Combat Hate in Canada

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There is a wide body of laws that could be brought to bear on hate crime and bias activity in Canada. Unfortunately, the enforcement of those laws and the administration of justice has often lagged behind the law. It has often been hard for victims and their advocates in many jurisdictions to have law enforcement investigate complaints, lay charges and even harder to have perpetrators prosecuted, despite what various provincial, territorial and federal governments boast. (A separate section of this website will be devoted to the problems with current government programs, policies and procedures.) As a result, the following sections outline the specific laws against racism and hate crime and examples of how to use some of it as well as more general laws that may pertain.

This section on legal instruments is presently under construction and is being added to and developed constantly. It is presently organized as follows: the first section outlines the basic hate crime laws. We provide a number of basic examples of how certain laws have been used and the result. See also Hate on the Net by Evelyn Kallen.

The second section is more ambitious. We attempt to outline general laws that can be brought to bear on the perpetrators of hate crime, from laws on trespass, defamation to laws on privacy. We attempt to explain how private citizens can use international covenants, criminal and civil law to find justice and protect themselves from racism and hate crime.

Your help to explain and provide examples of how to use current laws is vital to helping the victims of racism and hate crime find justice and to making Canada a safer place for everyone.

Content

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Part One - Legislative Remedies

1. Criminal Code and Human Rights Remedies

2. Other Criminal Code Remedies

3. Customs Act – Customs Tariff Act

4. The Canadian Brodcasting Act

5. Civil Law

6. Private Prosecution

7. Compensation for the victims of crime

8. International Conventions (see alsoCERD Report

Part Two - Guidelines

10. Guidelines to Laying a CHRC complaint

11. Criminal Code and CHRC decisions

12. Examples of Arguments

Part Three

13. References

1. Criminal Code and Human Rights Remedies

The most successful means of stopping hate propaganda, including signs and symbols and hate on the Internet, as well as discrimination in housing and employment is through the various provincial and federal human rights Tribunals and Commissions. For example, section 13 of the Canadian Human Rights Act makes it is a discriminatory practice to communicate, or cause to be so communicated, by telephone or on the Internet, anything that is likely to expose a person or persons to hatred or contempt on the basis of a prohibited ground of discrimination. The Canadian Human Rights Act does not require proof of intent, as does the Criminal Code, only that the promotion of hate is likely to have a detrimental impact on “identifiable groups”.

For breach of s. 13, the Tribunal can order the practice stopped, measures to prevent the practise from recurring, victim compensation, and fines off up to $10,000. The provincial human rights Commissions and Tribunals are not mandated to deal with inter-provincial matters like telecommunications, but they do contain provisions to prevent discriminatory signs, symbols and in some cases publications, discrimination in employment, housing and access to services. The provincial commissions and tribunals can also order the removal of discriminatory signs and symbols, an apology for damages, compensation and fines.

Sections 318 and 319 of the Criminal Code of Canada makes it an offense to: (1) aadvocate genocide, (2) incite hatred or to (3) make public statements that promote hatred against an identifiable group, based on ethnicity and/or colour of skin. While neither section 318 or 319 specifically addresses hate on the Internet, they both have been used to stop Canadians from posting hate propaganda on the Net. Breach of ss 318 and 319 can result in imprisonment of up to one year and fines of up to $5,000. However, no proceeding under s. 318 or s. 319(2) of the Code can take place without the consent of the Attorney General of the province where the offence took place and consent has often proven to be very difficult to obtain. A second problem is that it must be proven that the accused intentionally acted out of hatred. Other defences available against ss 318 and 319 include the defence of good faith expression of opinion on a religious subject or belief based on a religious text.

Under s. 320.1 of the Code, which came about due to the Anti-terrorism Act of 2001, a judge can now order hate propaganda removed from the Internet even where the intent to advocate genocide or the wilful promotion of hatred cannot be proven and regardless of whether the content provider is also prosecuted under ss. 318 or 319.

Section 430(4.1) of the Criminal Code also makes it a crime of mischief to deface a building that is primarily used for religious worship, including a church, mosque, synagogue or a cemetery, where the mischief is motivated by bias, prejudice, or hate based on religion, race, colour or national or ethnic origin. Whether s 430(4.1) applies, or should apply, to virtual places of worship is a matter of debate.

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2. Other Criminal Code Remedies

Assault

Section 265 defines assault as “the use or attempted use of force against another person without consent, or either the plausible threat of force or the dsiplay of a plausible facsimile of a weapon.” It is not necessary to prove physical contact to prove a charge of assault. The maximum penalty for assault is five years.

Uttering Threats

Section 264.1(1) makes it an offense to knowingly threaten (directly or idnirectly) death or bodily harm. The maximum penalty is five years. The same section makes it an offense to burn, destroy or damage property or to kill or injure an animal that is the property of another person.

Intimidation

Section 423 makes it an offense, without lawful authority, to try to compel another person to do or abstain from doing snything by threats or acts of violence against that person, his /her family or his/her property or by interfering with his/her travel, business or home life. The maximum penality six months.

Torture

Section 269.1 makes it an offense for any person acting under the authority of a public official to torture anyone. Torture is defined as intentionally inflciting severe physical or mental pain or suffering, for the purpose of intimidating, coercing, punishing or extracting information from the victim or third person. The maximum penalty is 14 years.

Dangerous Offender Status

Perpetrators of hate crime are by definition likely to harbour deep-seated hatred and, as such, are more likely to be long term threats to public safety. Bill Jefrey therefore recommends that victims and their advocates should attempt to have persons convicted of hate crime declared dangerous offenders. If approved by the court, offenders may be imprisoned for an indeterminate period of time.

Defamatory Libel

Section 298 prohibits the publication of words or symbols that are likely to insult or injure the reputation of a person as a result of exposing them to hatred, contempt or ridicule. The maximum penalty is two years and where the publisher knows the the defmatory libel is false, five years imprisonment.

Crimnal Harassment

New amendments of the Criminal Code have been made to help protect women who are being stalked by men, especially their former partners, but the amendments might be more generally applied. Section 264 defines criminal harassment as pesistently following, communicating, watching or threatening any person or anyone known to that person when the perpetrators knows or ought to know that the other person might reasonably fear for their safety or anyone known to the victim.

False messages and harassing telephone calls

Section 372 prohibits communication designed to harass persons. Subsection 372.(1) prohibits the transimission of false information by any means, directly or indirectly, which is intended to injure or alarm any person. The maximim penalty is two years imprisonment.

Subsection (2) makes it an offense to make an indecent telephone call to any person with the intent to alram or annoy any person. The maximum penalty is six months imprisonment and a $2,000 fine.

Subsection (3) prohibits repeated telephone calls to any person with the itnent of harassing any person. The maximim penalty is six months imprisonment and a $2,000 fine.

Damage to property

There is no specific charge for the destruction or desecration of a place of worship other than section 430 which makes it an offense to willfully destroy, damage or interfere with the use of property. The maximim penalty is life imprisonment if there is danger to life and up to 10 years for damage in excess of $5,000 and two years imprisonment.

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References

1. See Hate, Inc on this site for case summaries, complaints and outcomes.

2. Cynthia Cornish and Alan Dutton, Organizing Rules: Combating Hate Groups. Canadian Anti-racism Education and Research Society (Chapter 6). 2001

3. Alan Dutton et al. Combating Online Hate. Secretariat for the United Nations World Conference Against Racism and All forms of Discrimination, 2001.

4. Andrea Stone, Combating Hate on the Internet: Current Canadian Efforts and the Recommendations of Non-Governmental Organizations to Improve upon Them. Department of Justice, 2007.

4. See International Convention on all forms of Discrimination - United Nations CERD