Karen R. Mock
National Director of the League for Human Rights of B'nai B'rith Canada
It has been well documented that racism and hate propaganda have long been part of the Canadian experience. Native peoples were deprived of their lands and marginalized in poverty by Canadian society. Today,' aboriginal land claims and the quest for self-government occupy a significant part of the current political agenda of most Canadian provinces. There is also evidence of rampant anti-Semitism in the early days of Canada. Regular attacks on Judaism and the Jewish community appeared in Semaine religieuse de Quebec and other religious publications, and The Protocols of the Elders of Zion were promoted by various religious leaders in Canada. From 1910 through the 1940s prominent Canadians were associated with virulent anti-Semitism, which included justifying Russian pogroms against the Jews, openly praising Hitler's charismatic leadership, and denying safety in Canada to Jews who were fleeing Nazi persecution. Other minority groups also suffered hate propaganda, notably the Sikhs and Chinese.
Canada also witnessed the rise of hate groups during the pre-war years. The 1920s and 1930s saw the development of the Ku Klux Klan (KKK) and the roots of the Western Guard and Aryan Nations. Such groups promoted hatred against Catholics, Blacks and Jews; signs along the beaches or other places in Toronto or Montreal often read "No Jews or Dogs Allowed."
There was a postwar decline in overt racism and anti-Semitism. However, with the increase in immigration, the relaxation in immigration regulations, and the policies of multiculturalism and bilingualism, hate group activity and hate propaganda increased. In the 1990s there were several KKK-style crossburnings throughout the country; and the Klan was implicated in the anti-Mohawk agitation in Quebec; Klan propaganda was distributed in some Montreal schools, the Eastern Townships of Quebec, several rural Ontario towns, and in Alberta and Manitoba; and anti-immigration white supremacist telephone "hate lines" attracted attention in Vancouver, Winnipeg and Toronto. Racist skinheads rallied regularly during the 1990s, and were implicated in and/or convicted of a number of racially-motivated crimes.
Holocaust denial has increased as a new form of anti-Semitism in schools and public venues across the country, along with active recruitment of young people in high schools and campuses to the racist and anti-Semitic cause, primarily through the dissemination of hate in pamphlets, tapes, videos and the Internet.
An analysis of the records of reported incidents of anti-Semitism since 1982 reveals a strong correlation between periods of economic difficulties and a rise in racist attitudes and behavior. After peaking in 1995, followed by a decrease in reported incidents for two consecutive years, 1998 saw a 14 percent increase in anti-Semitic incidents in Canada. Cases in the human rights commissions and courts, and reports from various multicultural and anti-racist organizations across the country, corroborate these findings.
THE CANADIAN CONSTITUTIONAL STRUCTURE
Canada has a parliamentary system, with governmental powers divided between the central (federal) government and the provinces and territories. Both federal and provincial jurisdictions have human rights legislation that deals with discrimination on a wide variety of grounds, including race, religion, creed and ethnic or national origin. Unlike the US, the federal and all provincial governments have adopted legislation specifically dealing with hate speech and hate propaganda. In Canada, hate speech (the promotion of hatred against identifiable groups) is not a free speech issue; it is against the law. As described below, most of the anti-hate legislation was adopted at a time when it was difficult to bring a case to trial because of the complete legal protection of freedom of speech. As Manwaring (1992) pointed out, a major change occurred in 1982 with the adoption of the Charter of Rights and Freedoms as part of the Constitution Act, 1982:
The charter embodies a tense compromise between classic individual rights and freedoms on the one hand, and collective rights to equality and cultural identity on the other. Section 1 sets forth a general formula for balancing competing rights and governmental interests. Section 1 of the charter reads:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Section 2(b) guarantees freedom of expression in the following terms:
Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
The charter has radically altered the constitutional framework within which governments can use their legislative powers to attack racist speech and acts. As a result of this constitutional reform, those accused of hate mongering can now challenge both provincial and federal legislation. This means that the regulation of racist speech and acts must be more care3fully tailored to respect individual rights than before 1982. The onus is now on government to justify its regulation of speech. (p. 107)
TYPOLOGY OF LEGISLATIVE RESPONSES TO HATE-MOTIVATED CRIME
Julian Roberts (1999), of the Department of Criminology at the University of Ottawa, concluded after an international survey that legislative responses to hate crime to date have focused on three areas:
• mandating a policing response (in terms of the collection of relevant statistics), including defining hate-motivated crimes;
• creating new substantive offenses;
• requiring judges, or formal sentencing guidelines systems, to impose harsher sentences upon offenders convicted of crimes in which hatred was the sole, primary or ancillary motive.
Although for most jurisdictions it is important to distinguish the issue of hate crime from hate propaganda or the dissemination of materials likely to generate hate and promote violence, when summarizing the legal/legislative remedies in Canada the distinction is not necessary because of the criminalization of hate propaganda. In the US, state and federal courts alike have struck down hate speech codes for being unconstitutional, whereas in Canada the hate provisions in the Criminal Code and in the human rights codes have withstood charter challenges.
Following an overview of legal remedies, this article will review the current legislative responses outlined in the Roberts typology, and conclude with a brief overview of recent non-legislative alternatives that have been recommended to counter racism, anti-Semitism and hate in Canada.
REMEDIES IN LAW
The international community has recognized the need to deal with human rights violations and hate propaganda under the law. The foundation of Canada's hate laws can be found in several international treaties which Canada has ratified. The Universal Declaration of Human Rights, proclaimed by the United Nations General Assembly in 1948, established the basic principles upon which subsequent anti-racist legislation would be based, including legislation designed to afford identifiable groups protection against racist attacks.
Hate propaganda, the promotion of hatred against identifiable groups, became a criminal offense in Canada in 1970, when the laws were adopted as amendments to the Criminal Code (Sections 318-320). That same year, Canada ratified the International Convention on the Elimination of All Forms of Racial Discrimination, which had been adopted by the UN in 1965, and signed by Canada in 1966. The convention specifically requires states to criminalize hate propaganda and other activities which promote racism. Article 4 of the Convention declares:
State parties, with due regard to the principles embodied in the Universal Declaration of Human Rights:
Shall declare an offense punishable by law all dissemination, as well as all acts of violence or incitement such as acts against any race or group of persons of another color or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof.
Canada is also a signatory to the International Covenant on Civil and Political Rights, which came into force in 1976 and specifically prohibits hate propaganda. Its Article 20(2) reads: "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." The Canadian Human Rights Act also addresses the issue of hate propaganda. Section 13 specifies: It is a violation of the act
To communicate telephonically or to cause to be so communicated in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of parliament [i.e. the telephone system and all electronic media] any matter any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination [race, national or ethnic origin, color, religion, age, sex, sexual orientation, marital status, disability, family status, and conviction for which a pardon has been granted].
While human rights organizations such as the League for Human Rights of B'nai Brith Canada (the League), as well as many studies and commissions, have proposed changes to strengthen the effectiveness of the existing legislation, there is almost universal agreement on the need for, and support of, effective laws to deal with hate propaganda in Canada. The catalyst for such legislation was undoubtedly the experience of Nazism. It showed the world that unchecked racism and hate propaganda could lead even a highly educated, cultured and democratic society to justify the most heinous crimes against humanity. The memory of the Holocaust was also undoubtedly part of the motivation behind Section 1 of the Canadian Charter of Rights and Freedoms, placing limits on those freedoms so that democracy could not destroy itself, as it did in pre-war Germany.
The Canadian anti-hate laws in the Criminal Code are the result of years of debate concerning the balance between individual and group rights. The complete text of the relevant sections (318-320) can be found in the Appendix. They are reproduced here because of their importance in the struggle against anti-Semitism and hate in Canada today. As Sanjeev Anand (1997) has concluded, by and large in Canada those criminal offenses which concern hate propaganda are well drafted and catch the most serious types of hate propaganda , while giving deference to freedom of expression. The premise underlying Canada's anti-hate laws is that in a democratic society, identifiable groups must be protected against racism, including its verbal manifestations, in order not to limit their basic freedoms and thereby their full participation in Canadian society. This notion is not only consistent with Canada's international obligation under the convention, but is based on a vision of society which is also at the basis of the concept of multiculturalism, is entrenched in the Canadian Bill of Rights (1960) and articulated clearly in the Charter of Rights and Freedoms (1982), sections 15 and 27, known as the equality rights and multiculturalism heritage sections, which have been enshrined in Canadian law by the Multiculturalism Act, 1988.
Section 15 (1) of the charter states:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law, without discrimination and in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability.
Section 27 states:
This charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
In addition to the human rights codes, there are other legislative provisions that support the anti-discrimination and anti-hate laws of Canada. Customs regulations (administered by the Prohibitive Imports Branch of Revenue Canada-Customs, Excise and Taxation) prohibit the importation into Canada of material considered to be obscene, treasonable, seditious, hate propaganda or child pornography, as those terms are treated in the Criminal Code. Material that is classified as "hate propaganda" on the list of prohibited imports can be seized or detained. Section 19 of the Immigration Act has been used to bar hatemongers from Canada. Admission to Canada can be denied on the basis of a criminal record, and /or if there are reasonable grounds to believe one or more offenses will be committed which are punishable by indictment under any act of parliament. Therefore, a person can be barred from entering Canada if he or she could reasonably be expected to violate Section 319 of the Criminal Code (the willful promotion of hatred against an identifiable group) while in the country. Deportation can occur if such a person evades immigration officials and gains entry into Canada.
CANADIAN HATE LAWS UPHELD
A detailed description of the many cases in the struggle against hate in Canada is beyond the scope of this article. But a brief summary of some of the most significant cases will illustrate the importance of legal remedies to counter anti-Semitism and hate. The Supreme Court of Canada issued its judgment in R. v. Keegstra and R. v. Andrews (1990) at the same time. Keegstra was a teacher in Alberta who taught his students over a period of fourteen years that Jews were (as quoted from the judgment of then Chief Justice Dickson) "treacherous, subversive, sadistic, money-loving, power hungry and child killers who seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars and revolution ... and created the Holocaust to gain sympathy." Keegstra expected his students to reproduce his teachings in class and in exams, and if they failed to do so, they were marked down. Donald Andrews and his cohort Robert Smith in Ontario were members of the white supremacist Nationalist Party of Canada, and were responsible for publishing and distributing the Nationalist Reporter: A legal search of their home revealed hateful materials for distribution, including mailing lists, racist stickers, publications with anti-Semitic and white supremacist themes, diatribes about racial mixing and Holocaust denial. Keegstra, and Smith and Andrews, were charged and convicted under the hate propaganda laws; but the respective provincial courts of appeal reached opposite conclusions on the constitutionality of section 319 (2) on the willful promotion of hatred. Ultimately, the Supreme Court upheld the constitutionality of the law, albeit by the narrowest majority. Concern for the values inherent in the equality and multiculturalism sections of the charter, as well as a strong position on the international agreements to which Canada is a signatory, played a significant role in that decision. The 4-3 vote in this landmark ruling underscored the delicate balance of individual and group rights that must be preserved to maintain a free and democratic Canadian society. While there are those who feel that the anti-hate laws should be strengthened by expanding the categories of groups included in the provision and reducing the available defenses, there appears to be consensus that in the present climate, any changes could threaten the constitutionality of the laws (Shulman, 1997).
Perhaps surprisingly, the Canadian resident Ernst Zuendel, one of the most active purveyors of anti-Semitic Holocaust denial in the world, has never been charged with the willful promotion of hatred. Laying hate charges under the Criminal Code requires the consent of the provincial attorney-general in order to safeguard abuse of the section. When charges were sought against Zuendel, the then attorney-general of Ontario would not consent to a hate charge; and so Zuendel was charged in 1983 under Section 181 (known as the false news section) on the basis of a private complaint concerning the distribution of his pamphlet, "Did Six Million Really Die?" Zuendel was convicted twice by a jury, but the Supreme Court of Canada (in a 4-3 decision) ruled in 1992 that the false news section was unconstitutional, in that free speech was too restricted. Zuendel is currently under investigation by a human rights tribunal, pursuant to a complaint under the Canadian Human Rights Act, on the basis of his promoting hatred in the form of Holocaust denial and anti-Semitism on the Zundelsite via the Internet. The tribunal is under judicial review, after Zuendel's challenge to the jurisdiction of the Human Rights Commission on the basis of whether or not the Internet can be considered a telephonic device, his claim that the website is owned and operated by Ingrid Rimland of San Diego, and his charge of reasonable apprehension of bias of one of the tribunal members. At the time of writing, the human rights tribunal had been postponed, pending the decisions of the
Federal Court and various appeals. !
The Canadian Human Rights Commission had clear jurisdiction in the cases of several "hate-lines" across the country that carried dial-up hate messages and were also used for recruitment. Complaints pursuant to Section 13 were filed in Ontario, British Columbia and Manitoba, and resulted in cease and desist orders to the Liberty Net, the Heritage Front and the KKK. Provincial human rights commissions have also been used successfully to counter anti-Semitism and Holocaust denial in Canada. Two recent cases stand out in this regard. New Brunswick's Human Rights Code was used to curtail the activities of teacher Malcolm Ross, the author of several books arguing the Holocaust was a fraud. When the provincial government refused to charge Ross under the Criminal Code, a parent laid a complaint with the Human Rights Commission against the school board. The Commission's Board of Inquiry ordered the school board to terminate Ross's employment. A judicial review led to a modification of the remedial order to strike out the restriction on Ross's right to publish anti-Semitic material if he continued working for the board in a non-teaching capacity. The New Brunswick Court of Appeal overturned the board of inquiry's decision; however, the Supreme Court of Canada upheld the complaint and suggested that his Holocaust denial and anti-Semitic publishing resulted in creating a "poisoned environment" for his students by his very presence.
On the other side of the country, Doug Collins, a columnist with the North Shore News in Vancouver, penned anti-Semitic diatribes on a regular basis. A complaint to the British Columbia Human Rights Commission that was based on one of his articles, "Schindler's List is Swindler's List," resulted in the decision that while the article was deemed to be anti-Semitic, it did not pass the criterion for "hatred." Another complaint was brought against Collins by Harry Abrams, the League's representative in Victoria, BC, on the basis of several anti-Semitic and racist articles. The tribunal found in favor of the complainant, declaring that the ongoing articles demonstrated a pattern and a cumulative effect of "exposing a group to contempt and hatred." Collins is appealing the decision.
While there have been cases of seizure of hate propaganda and pornography from bookstores and examples of detention at the border, more often the possibility of such action resulted in voluntary compliance. For instance, when the League intervened, a warning was issued by the police to a large book distributor who had brought in a new edition of The Turner Diaries before it was put on the revised list of prohibited imports. The company decided not to distribute the book, a hateful and violent tract, thought to have been used as the blueprint for the bombing of the Federal building in Oklahoma.
Section 319 of the Immigration Act, described above, has been used successfully in turning away hatemongers from Canada's borders. In the past decade, Holocaust denier David Irving was deported by the Immigration Department, in cooperation with local and provincial policing services; and Irving is prevented from returning to Canada, where he had previously conducted an annual speaking tour to spread his virulent form of anti-Semitism. Tom Metzger of White Aryan Resistance has been detained and deported; and Khalid Abdul Muhammad of the Nation of Islam, as well as several hate rock bands, have been prevented from entering Canada under Section 319 of the Immigration Act.
POLICE RESPONSE AND SENTENCING PROVISIONS
Criminologists estimate that only one in ten hate incidents is ever reported. As Julian Roberts (1995, 1999) pointed out, without comprehensive statistics, it is impossible to develop an effective criminal justice response. In fact, he concluded, the reason that groups such as the League collect statistics on an annual basis is to sensitize communities and governments to the scope and severity of the hate crime problem. Several police services across Canada responded to the League's warnings in the early 1990s that hard data indicated an upsurge of anti-Semitism at home and abroad. In 1993, the Ottawa and Toronto police services created Hate Crimes Units, and were soon followed by Montreal, Winnipeg and Vancouver. In 1994 Canada hosted the first National Symposium on Hate Crimes in Canada, so that police from across the country could share intelligence, prosecutors could develop expertise on hate/bias crime, and community groups could develop strategies and cooperate in action against hate. At the present time, most large cities in Canada have police hate crimes units, or at least specialized officers within intelligence or other relevant units, responsible for developing expertise in the area, training their colleagues and documenting the incidents of hate-motivated crime, including statistics on target groups.
Systematic national statistics pertaining to hate crimes are not available in Canada. In 1995 the Ontario Provincial Government enacted legislation proposed by the solicitor general making it mandatory for police services to gather statistics on hate crime in their jurisdiction. A study conducted in Toronto (Mock, 1996) revealed that the police, the League and the 51) Community Centre (a local agency serving the gay and lesbian community), were the only three organizations systematically gathering data on hate crime. To date this still remains the case, although those groups are working together to train others and to provide leadership in community coalition building. At the federal level, a private member's bill (Bill C-455) was introduced in the House of Commons in 1993, but it did not proceed through the parliamentary process, as is the case with many private member's bills. At the present time there does not appear to be the political will to move forward in this area, perhaps because of the reluctance of government to push for the inclusion of sexual orientation as one of the categories in the definition of "identifiable groups" in the legislation. It was this issue that dominated most of the debate in 1996, when the Canadian parliament adopted a comprehensive sentencing reform bill (Bill C-41). Fortunately there was enough support, and the bill became an amendment to theCriminal Code as Section 718. It identifies a number of statutory aggravating factors, one of which includes hate-motivated crime. Since 1996, "evidence that the offense was motivated by bias, prejudice or hate based on the race, nationality, color, religion, sex, age, mental or physical disability or sexual orientation of the victim or similar factor shall be deemed an aggravating circumstance" upon sentencing. This provision has enshrined in law that which was already a part of common law, in that Canadian judges already tended to follow the sentencing precedent set by former justice Dubin of the Ontario Court of Appeal, that hate motivation rendered a crime more "heinous."
There are those who insist that taking hatemongers to court gives them a platform for their racist ideology and thus they discourage publicity and prosecutions. Such detractors need to be reminded that pre-Nazi Germany had hate laws on the books that were not implemented with effective penalties. It is essential to continue to prosecute hatemongers and to impose penalties that will serve as deterrents. When the Alberta Court of Appeal overturned the Keegstra decision, there was a dramatic increase in hate group activity and in the dissemination of hate propaganda in Western Canada. However, a later decline in the severity of anti-Semitic incidents appeared to be a direct result of the subsequent Supreme Court's decision, increased awareness and police vigilance, and longer sentences for those convicted than was previously the case. It is likely that increased anti-racism programs in schools in the early 1990s, as well as community action, were also factors contributing to a decline in organized hate activity in Canada.
ALTERNATIVE REMEDIES FOR HATE IN CANADA
In addition to legal action to combat anti-Semitism, racism and hate, coordinated community response has proved effective in fighting racism. The League has been involved in several community actions to combat racism. For example, in 1989, on Canada's national holiday, the first Canada Day Aryan Fest took place in Minden Ontario. It was a demonstration by neo-Nazis in training skinheads and aspiring Nazis in the art of violence and hate. The citizens of Minden faced this racism with an anti-racist campaign spearheaded by the local newspaper editor and United Church minister, in collaboration with the League, and a human rights committee was created to develop local policies and guidelines to combat hatemongering in the future.
A year later, when the Aryan Fest training camp attracted close to 250 skinheads and white supremacists to Metcalfe Ontario, near Ottawa, a multicultural coalition of concerned citizens rallied against racism on the steps of the parliament buildings and marched to the site of the camp to protest the rise of racism and the distribution of hate propaganda. The adverse publicity convinced the property owners not to allow the white supremacists to return the following year. Instead, a multicultural anti-racist youth leadership camp for youth from Ontario and Quebec was sponsored by the League.
When the Heritage Front in Toronto opened an anti-immigration "hateline" that included racist diatribes against the black and native communities, a complaint was filed with the Canadian Human Rights Commission. Among other actions, the Neighbourhood Watch issued a pamphlet advising citizens to report any suspicious people and to take action against recruitment, especially of young people; and an ad hoc working group, calling themselves Citizens against Racism, met regularly and planned a Rally against Racism to commemorate 21 March, International Day for the Elimination of Racism.
Coordinated community action not only raises awareness and increases vigilance, but it also reduces fear and promotes security and solidarity in the fight against racism. As Manwaring (1992) concluded, one of the important functions of legislation in the realm of hate is the expression of societal disapproval of racism and bigotry and collective support for the targeted groups. When people from diverse backgrounds work together, they also learn more about each other, thereby reducing prejudice and stereotyping and promoting understanding and unity,
EDUCATION, AWARENESS AND ACTION
The battle against racism and hate propaganda will ultimately be won through increased efforts to incorporate multicultural, anti-racist and human rights education in our schools, and to start as early as possible. Of course pro-active legislation is important in this regard. Education is under provincial jurisdiction in Canada. Several provincial ministries of education have proposed policies to provide curriculum, promote human rights and counter harassment and discrimination. However, in the last few years, a declining economy, a swing to the right and the concomitant backlash against immigration, multiculturalism and anti-racist initiatives have resulted in the dismantling of relevant departments and cutbacks in resources and programs to enforce existing anti-discrimination policies. Although many local school boards have race and ethno-cultural equity policies, lack of in-service training of teachers and administrators often leaves staff powerless. Sadly, as the climate becomes more tense, and as hate group recruitment and violent hate crime increase, educators often turn to the police for assistance, without implementing pro-active change in the curriculum and in the structures that have led to such anti-social and anti-democratic behavior. There is a need for education and awareness at every level of the system, from early childhood through post-secondary, from teachers' federations to the provincial ministries and departments of education. We must move from a situation in which the students are victims and perpetrators of name-calling and harassment, to a situation where they are unafraid to take risks to stand up to racism and anti-Semitism if they are victims or by-standers. Programs such as the League's "Holocaust and Hope" program, its international symposium on Hate on the Internet, and "Taking Action Against Hate" training, give students, teachers, police and community leaders the skills and confidence to report and handle incidents and to develop initiatives that are both pro-active and anti-racist. Holocaust denial must be turned into Holocaust education, Internet hate into Internet literacy, and bystanders into activists.
On 1 July 1999, Canada turned 132 years old. It is a young country that is under close observation of what some might call an experiment in multiculturalism. As the turn of the millennium approaches, it is clear there is still a long way to go to implement the legal/legislative remedies necessary to counter increasing incidents of anti-Semitism, racism and hate in Canada.
Nevertheless, because of the laws and codes now in force, the restrictive signs on the beaches are gone and hatemongers know they are not welcome in Canada. Because of Canada's commitment to a multicultural society, communities are working together to fight racism. Thus, there is every chance that the goals of combating anti-Semitism, hatred and bigotry, and of achieving human rights for all, will eventually be accomplished.
Anand, Sanjeev, "Expressions of Racial Hatred and Criminal Law: Proposals for Reform," Criminal Law Quarterly (1997), pp. 215-42.
League for Human Rights of B'nai B'rith Canada, Audit of Antisemitic Incidents, 1982-98 (Toronto).
Manwaring, John, "Legal Regulation of Hate Propaganda in Canada," in Striking a Balance: Hate Speech, Freedom of Expression and Non-discrimination, Sandra Coliver (ed.) (London/University of Essex, 1992).
Mock, Karen R. "Combatting Hate in Canada Today: Lessons of the Holocaust," Canadian Social Studies. 4 (1995).
Mock, Karen R., The Extent of Hate Activity and Racism in Metropolitan Toronto (Toronto, 1996).
Municipality of Metropolitan Toronto, HATE- Communities Can Respond (Toronto, 1996).
Roberts, Julian V., Disproportionate Harm: Hate Crime in Canada. An Analysis of Recent Statistics (Ottawa, 1995).
Roberts, Julian V., Legislative Responses to Hate-Motivated Crime. Draft Report for the Domain Seminar on Social justice, 14-15 May 1999 (Department of Canadian Heritage).
Shulman, Steven H., "The Law," in From Marches to Modems: A Report on Organized Hate in Metropolitan Toronto (Toronto, 1997).
THE CRIMINAL CODE OF CANADA
ADVOCATING GENOCIDE/Definition of "genocide"/Consent/Definition of"identifiable group."
(1) Everyone who advocates or promotes genocide is guilty of an indictable offense and liable to imprisonment for a term not exceeding five years.
(2) In this section, "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely, (a) killing members of the group; or (b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
(3) No proceeding for an offense under this section shall be instituted without the consent of the Attorney General.
(4) In this section, "identifiable group" means any section of the public distinguished by color, race, religion or ethnic origin. R.S., c.ll (1st Supp.), s.l.
PUBLIC INCITEMENT OF HATRED/Willful promotion of hatred/Defenses/ Forfeiture/Exemption from seizure of communication facilities/Consent/Definitions/ "communication"/" identifiable group"/" public place"/" statements."
(1) Everyone who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offense and is liable to imprisonment for a term not exceeding two years; or
(b) an offense punishable on summary conviction.
(2) Everyone who, by communicating statements, other than in private conversation, 'willfully promotes hatred against any identifiable group is guilty of
(a) an indictable offense and is liable to imprisonment for a term not exceeding two years; or
(b) an offense punishable on summary conviction.
(3) No person shall be convicted of an offense under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;
(c) 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 believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.
(4) Where a person is convicted of an offense under section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offense wascommitted, on such conviction, may in addition to any other punishment imposed, be ordered by the presiding provincial court judge or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct.
(5) Subsections 199(6) and (7) apply with such modifications as the circumstances require to section 318 or subsection (1) or (2) of this section.
(6) No proceeding for an offense under subsection (2) shall be instituted without the consent of the Attorney General.
(7) In this section, "communicating" includes the communicating by telephone, broadcasting or other audible or visible means; identifiable group" has the same meaning as section 318; "public place" includes any place to which the public have access of right or by invitation, express or implied; "statements" includes words spoken or written or recorded electronically or electromagnetically or otherwise, gestures, signs or other visible representations.
R.S., c. 11 (1st Supp.), s.l.
WARRANT OF SEIZURES/Summons to occupier/Owner and author may appear/Order of forfeiture/Disposal of matter/ Appeal/ Consent/ Definitions/"court"/"genocide"/"hate propaganda "/"judge."
Section 320 .
(1) A judge who is satisfied by information on oath that there are reasonable grounds for believing that any publication, copies of which are kept for sale or distribution in premises within .the jurisdiction of the court, is hate propaganda, shall issue a warrant under his hand authorizing seizure of the copies.
(2) Within seven days of the issue of the warrant under subsection (1), the judge shall issue a summons to the occupier of the premises requiring him to appear before the court and show cause why the matter seized should not be forfeited to Her Majesty.
(3) The owner and the author of the matter seized under subsection (1) and alleged to be hate propaganda may appear and be represented in the proceedings in order to oppose the making of an order for the forfeiture of the matter.
(4) If the court is satisfied that the publication referred to in subsection (1) is hate propaganda, it shall make an order declaring the matter forfeited to Her Majesty in right of the province in which the proceedings take place, for disposal as the Attorney General may direct.
(5) If the court is not satisfied that the publication referred in subsection (1) is hate propaganda, it shall order that the matter be restored to the person from whom it was seized forthwith after the time for final appeal has expired.
(6) An appeal lies from an order made under subsection (4) or (5) by any person who appeared in the proceedings
(a) on any ground of appeal that involves a question of law alone,
(b) on any ground of appeal that involves a question of fact alone, or
(c) on any ground of appeal that involves a question of mixed law and fact, as if were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, on a question of law alone under Part )CC, and sections 673 to 696 apply with such modifications as the circumstances require.
(7) No proceeding under this section shall be instituted without the consent of the Attorney General.
(8) In this section, "court" means
(a) in the Province of Quebec, the Court of Quebec,
(a. l) in the Province of Ontario, the Ontario Court (General Division)
(b) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of the Queen's Bench,
(c) in the Provinces of Prince Edward Island and Newfoundland, the Supreme Court, Trial Division, and
(c.l) [Repealed, 1992, c.51, s.361 `
(d) in the Provinces of Nova Scotia and British Columbia, the Yukon Territory, the Northwest Territories and Nunavui, the Supreme Court;
"genocide" has the same meaning as in section 318;
"hate propaganda" means any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offense under section 319;
"judge" means a judge of court, R.S., c.ll (1st Supp.), s.l; 1974-75, c.48, s.25; 1978-79, c.ll, s.10; R.S.C. 1985, c.27 (2nd Supp.), s.10; c.40 (4th Supp.), s.2; 1990, c.16, s.4: 1990, c.17, s.ll; 1992, c.l, s.58.
Source: Anti-Semitism Worldwide, 1998/1999
The Stephen Roth Institute for the Study of Anti-Semitism and Racism
Tel Aviv University (Distributed by the University of Nebraska Press)
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