85-6E
HATE PROPAGANDA
Prepared by:
Philip Rosen
Senior Analyst
Revised 24 January 2000
TABLE
OF CONTENTS
ISSUE
DEFINITION
BACKGROUND AND ANALYSIS
A. Overview
B. Federal Legislation
1. Criminal Code
a. Present Law
b. Reform Proposals
2. Canadian Human
Rights Act
a. Present Law
b. Reform Proposal
C. Arguments For and Against Hate Propaganda
Legislation
PARLIAMENTARY ACTION
CHRONOLOGY
SELECTED REFERENCES
HATE PROPAGANDA*
ISSUE
DEFINITION
The controversy to which
hate propaganda gives rise appears to be more vigorous than the volume
and availability alone of this material would seem to justify. Although
material inciting hatred and advocating racial superiority has probably
always existed, the last 35 years have witnessed a controversy as to what,
if anything, to do about it. This debate reveals as acutely as possible
the conflict between generally accepted Canadian multicultural and egalitarian
social values and the libertarian value of freedom of expression.
BACKGROUND AND ANALYSIS
A. Overview
The distribution of hate
propaganda and the activities of racist groups have come in two waves
since the 1960s. In the middle of that decade, anti-Jewish and anti-black
hate propaganda was widespread in Canada, but especially in Ontario and
Quebec. Simultaneously, neo-Nazi and white supremacist groups, based largely
in the U.S., became active in Canada. The result was the 1965 Cohen Committee,
upon whose recommendations to the Minister of Justice were based the 1970
amendments to the Criminal Code (s. 318-320) adopted by Parliament.
The second wave of racist
group activity and hate propaganda has come since the mid-1970s. The Edmund
Burke Society, Nationalist Party of Canada and Western Guard Party were
active and the Ku Klux Klan was revived in Ontario and B.C., giving rise
to the McAlpine inquiry into its activity in the latter province. Hate
propaganda was not only anti-Jewish and anti-black, it was also anti-East
Indian, anti-Catholic, anti-French and anti-Native people. The propaganda
was not only in the form of leaflets or pamphlets; it has been transmitted
by telephone, video cassette and the Internet. It has also attempted to
pass for legitimate scholarship by appearing in the form of learned journals
and books; this type of technique is best exemplified in the "Holocaust
denial" literature and other forms of historical revisionism that
are published for the purpose of inciting hatred. Most recently, so-called
"Aryan Nations" groups based in the United States, the Heritage
Front and Skinheads have all been active in Canada.
This second wave of hate
propaganda and racist group activity gave rise to a flurry of reaction
and a wide-ranging debate. Proposals for legislative change came from
a 1982 Vancouver Symposium on Race Relations and the Law, the 1984 Report
of the Special House of Commons Committee on Visible Minorities (Equality
Now!), the 1984 Report of the Canadian Bar Association's Special Committee
on Racial and Religious Hatred, the 1985 Report of the Special Committee
on Pornography and Prostitution in Canada (Fraser Committee) and the Law
Reform Commission of Canada's 1988 Report on the Recodification of
the Criminal Law.
The second wave has brought
prosecutions of perpetrators of racial hatred. Jim Keegstra, Donald Andrews
and Robert Smith were all convicted of intentionally communicating hatred
in violation of s. 319(2) of the Criminal Code: these convictions
were upheld by the Supreme Court of Canada. Ernst Zundel was convicted
of wilfully spreading false news by publishing "Holocaust denial"
literature in violation of s. 181 of the Criminal Code: this
provision was later struck down by the Supreme Court of Canada. John Ross
Taylor and the Western Guard Party were twice found in contempt of court
for refusing to comply with a Human Rights Tribunal order under s. 13
of the Canadian Human Rights Act that they cease communicating
hate messages by telephone; the Supreme Court of Canada upheld this provision.
There have been other cases under both the Criminal Code and the
Canadian Human Rights Act.
The law in place at the
federal level will now be briefly described. The arguments for and against
applying legal sanctions to hate propaganda will be canvassed.
B. Federal Legislation
1. Criminal Code
a. Present Law
Most of the discussion of
hate propaganda has centred on s. 318-320 of the Criminal Code.
These sections, adopted by Parliament in 1970, were based in large part
on the 1965 Cohen Committee recommendations, although there were some
significant differences.
Under s. 318 of the
Criminal Code, everyone who advocates or promotes genocide is guilty
of an offence punishable by five years' imprisonment. The term "genocide"
is defined to mean killing members of an identifiable group or deliberately
inflicting on an identifiable group conditions of life calculated to bring
about the group's physical destruction. Section 318(4) of the Criminal
Code defines an "identifiable group" as any section of the
public distinguished by colour, race, religion or ethnic origin. The Cohen
Committee Report would have added to these provisions of the Criminal
Code in that it recommended a third element in the definition of genocide
- the deliberate imposition of measures to prevent births within an identifiable
group. In addition, the Cohen Committee would have included "language"
and "national origin" within the definition of "identifiable
group."
Under s. 319(1) of
the Criminal Code, anyone who communicates statements in a public
place and thereby incites hatred against an identifiable group where such
incitement leads to a breach of the peace is guilty of an indictable offence
punishable by two years' imprisonment or a summary conviction offence.
Section 319(2) makes it a crime to communicate, except in private conversation,
statements that wilfully promote hatred against an identifiable group.
Section 319(7) defines "communicating" to include communicating
by telephone, broadcasting or other audible or visible means. "Public
place" is defined to include any place to which the public has access
as of right or by invitation, express or implied. "Statements"
include words spoken or written or recorded electronically, electromagnetically
or otherwise and also include gestures, signs or other representations.
No prosecution under s. 319(2)
can be instituted without the consent of the provincial Attorney General.
Any person charged under s. 319(2) of the Criminal Code has
available four special defences set out in s. 319(3). These defences
are: 1) that the communicated statements are true; 2) that an opinion
or argument on a religious subject was expressed in good faith; 3) that
the statements were relevant to a subject of public interest and were
on reasonable grounds believed to be true; and 4) that in good faith the
statements were meant to point out for removal matters tending to produce
feelings of hatred of an identifiable group.
The Cohen Committee recommendations
differed from these provisions of the Criminal Code in that they
did not include that s. 319(2) should require the wilful promotion
of hatred to be communicated in other than a private conversation. The
Cohen Committee would not only have included in s. 319(2) the wilful promotion
of hatred of an identifiable group, but also the promotion of "contempt"
for such a group. Finally, the Cohen Committee recommended that only defences
1 and 3, and not defences 2 and 4 under s. 319(3) of the Criminal
Code be open to a prosecution under s. 319(2).
Section 320 of the Criminal
Code provides for the order by a judge of seizure and confiscation
of hate propaganda, on reasonable grounds. Hate propaganda is defined
in s. 320(8) as any writing, sign or visible representation advocating
or promoting genocide, or the communication of which would be an offence
under s. 319(2). It merely needs to be shown that the material is
hate propaganda for it to be seized - it does not have to be shown to
be dangerous. The consent of the provincial Attorney General is required
before these seizure and confiscation provisions can be used. The Cohen
Committee did not recommend that this type of in rem proceeding
be adopted but merely urged that it be studied.
b. Reform
Proposals
Much of the discussion of
the use of the Criminal Code against hate propaganda has centred
on s. 319(2). Following the 1979 Ontario Court of Appeal decision
in R. v. Buzzanga and Durocher, which found that
in order to be convicted an accused must specifically have intended to
incite hatred by distributing handbills, the debate has largely focused
on the word "wilfully" in defining the offence of inciting hatred
in s. 319(2). For a conviction, it would not be enough to show that
the incitement of hatred was the result of the distribution of material;
it would have to be shown that the accuseds state of mind had indicated
an intent to promote hatred. The individuals in Buzzanga were two
Franco-Ontarians involved in a French language school dispute, who, to
encourage their supporters, had distributed an anti-French handbill.
The 1982 Vancouver Symposium
on Race Relations and the Law, the Special House of Commons Committee
on Visible Minorities, the Government of Canada in its response to Equality
Now!, the Canadian Bar Association Special Committee on Racial and
Religious Hatred and the Special Committee on Pornography and Prostitution
have all urged that the word "wilfully" be dropped completely
from s. 319(2) of the Criminal Code. The Law Reform Commission
recommended that this offence be replaced by one called "stirring
up hatred," whereby anyone who publicly stirred up hatred against
an identifiable group would be guilty of a crime.
Another issue that has garnered
much attention centres on the four special defences available to an accused
charged under s. 319(2) of the Criminal Code. Both the House
of Commons Committee on Visible Minorities and the Government of Canada
in its response to Equality Now! proposed that the Criminal
Code be amended to ensure that the burden to adduce all elements of
these special defences resides with the accused throughout a criminal
prosecution. The Canadian Bar Association Special Committee on Racial
and Religious Hatred urged that special defences 2 and 3 be dropped thus
leaving available to an accused only the two defences of "truth"
and "efforts to remove feelings of hatred towards an identifiable
group." The Law Reform Commission recommended that the defences be
deleted as unnecessary in light of its formulation of the offence of "stirring
up hatred."
The other issue that has
aroused considerable controversy is the requirement for the provincial
Attorney General's consent to a hate propaganda prosecution. This is a
provision on which the Cohen Committee did not make a firm recommendation
but which it merely urged be considered. The 1982 Vancouver Symposium
on Race Relations and the Law, the Special House of Commons Committee
on Visible Minorities, the Government of Canada in its response to Equality
Now!, and the Special Committee on Pornography and Prostitution agreed
that the requirement for the consent of the Attorney General for a prosecution
under s. 319(2) of the Criminal Code should be removed. A
majority of the Canadian Bar Association's Special Committee on Religious
and Racial Hatred concluded that the requirement for the Attorney General's
consent should be retained to prevent frivolous or vexatious hate propaganda
prosecutions. The Law Reform Commission deferred any recommendations about
the requirement for the Attorney General's consent until the release of
its Working Paper on the powers of the Attorney General.
The Special Committee on
Pornography and Prostitution recommended in its April 1985 Report that
the definition "identifiable" groups in s. 318(4) of the
Criminal Code should be broadened to include sex, age and mental
or physical disability insofar as it applies to s. 319 of the Criminal
Code. This same recommendation was also made by the Report of the
Law Reform Commission in order that these provisions of the Criminal
Code would be consistent with the prohibited grounds of discrimination
set out in s. 15 of the Canadian Charter of Rights and Freedoms.
The Commission expressed the view in its Working Paper on Hate Propaganda
that this recommended amendment would not catch pornography. Bill C-54,
dealing with pornography, received first reading on 4 May 1987. It contained
an amendment to s. 318(4) of the Criminal Code to include
"sex" within the definition of an identifiable group. This bill
died on the Order Paper with the dissolution of Parliament on 1 October
1988.
2. Canadian Human Rights Act
a. Present Law
In 1977, Parliament adopted
the Canadian Human Rights Act, which, in addition to the now-familiar
provisions for dealing with proscribed discriminatory acts, included s.
13, making it a prohibited discriminatory practice to use the telephone
to communicate race hatred. To fall under s. 13, the communication by
telephone or telecommunications facility must be repeated and it must
be likely to expose a person or persons to hatred or contempt in that
they belong to an identifiable racial, national, ethnic or religious group
or a group defined by reason of age, sex, family or marital status, disability
or pardoned conviction. Unlike the Criminal Code's hate propaganda
provisions, it is not necessary to prove specific intent to succeed in
showing the discriminatory practice and there are no special defences
available to a respondent to such a complaint.
As in other cases before
Human Rights Commissions, attempts are made to investigate and conciliate
complaints under s. 13 of the Act before a Human Rights Tribunal is named.
Once a Tribunal is named, it holds a hearing and comes to a finding which
is binding on all parties. The Tribunal cannot enforce its own findings
and orders; if these are not followed, they have to be filed with the
Federal Court and enforced by contempt proceedings before that body.
b. Reform Proposal
The Special House of Commons
Committee on Visible Minorities recommended that, since the Canadian Human
Rights Commission has experience with problems of racism and racial discrimination,
it should be given jurisdiction to deal with hate propaganda no matter
how disseminated - by telephone, by mail, by radio or television and whether
exported or imported. In its response to Equality Now!, the Government
of Canada indicated it would give serious consideration to this recommendation
and consult widely as to its practicality.
C. Arguments For and Against Hate
Propaganda Legislation
The arguments in favour
of hate propaganda legislation are as follows:
1. Rights are never absolute
- in Canada they are exercised under law - legal intervention is justified
in some circumstances.
2. Unlike the U.S. First
Amendment libertarian position, the Canadian Charter of Rights and
Freedoms is imbued with egalitarian rights, as set out in s. 15,
which must be read in tandem with the libertarian rights of s. 2.
3. Canada is a multicultural
society - this multiculturalism is accepted as a basic constitutional
norm and as such is set out in s. 27 of the Canadian Charter of
Rights and Freedoms - this constitutional norm must be read in tandem
with the libertarian rights of s. 2 of the Charter.
4. Numerous reports and
legislative enactments indicate a consensus as to the legitimacy of using
the law against hate propaganda.
5. Many other Western liberal
democracies have anti-hate propaganda legislation.
6. Canada must fulfil its
international obligations by enacting hate propaganda legislation. The
Convention on the Prevention and Punishment of the Crime of Genocide,
the International Covenant on Civil and Political Rights and the International
Convention on the Elimination of all Forms of Racial Discrimination,
to all of which Canada is a signatory, oblige Canada to combat racism
and the advocacy of genocide and racial superiority.
The arguments against hate
propaganda legislation are as follows:
1. Libertarian rights, such
as freedom of expression, are not divisible. Once they begin to be restricted,
it is difficult to draw the line as to where such limitations on freedom
stop.
2. The prosecution of hate
propagandists enables them to use the courtroom as the medium to further
disseminate their ideas. If they are convicted or found to have committed
a prohibited discriminatory act, they may go on to make use of their martyrdom
to further their cause.
3. Once enacted, hate propaganda
legislation may be abused and used against those to whom it was not originally
intended to apply.
4. At the present time,
the purveyors of hate propaganda are of only marginal importance and have
little impact on the body politic; hence no legislative measures or, at
least, no strengthened laws are needed to deal with them.
5. Allowing purveyors of
hate propaganda to distribute their material freely has a cathartic or
safety valve effect.
PARLIAMENTARY ACTION
Following the tabling of
the Cohen Committee Report on Hate Propaganda on 14 April 1966, Senator
Connolly tabled Bill S-49, which received first reading on 6 November
1966 and proceeded no further. On 9 May 1967, Senator Deschatelets
tabled Bill S-5, which received first reading on that day. On 21 November
1967 the bill received second reading and was referred to the Special
Senate Committee on the Criminal Code (Hate Propaganda). The Committee
held hearings but did not report.
Senator Martin introduced
Bill S-21 on 9 December 1968, when it received first reading; it subsequently
died on the Order Paper. On 27 October 1969 the Minister of Justice (Mr.
Turner) introduced Bill C-53, which, after Committee study in both Houses,
received Royal Assent on 11 June 1970.
CHRONOLOGY
9 December 1948 - U.N. General
Assembly adopted the Convention on the Prevention and Punishment of
the Crime of Genocide.
3 March 1953 - In an appearance
before the Special House of Commons Committee studying the Criminal
Code amendment bill, the Canadian Jewish Congress urged that a specific
criminal offence relating to hate propaganda be adopted by Parliament.
January 1965 - Minister
of Justice Guy Favreau named a Special Committee under the Chairmanship
of Dean Maxwell Cohen to report to him on hate propaganda.
24 March 1965 - Beginning
on 18 November 1964, the Standing House of Commons Committee on External
Affairs conducted a study of Private Members' Bills dealing with hate
propaganda and the advocacy of genocide, and asked in its Report that
its mandate be extended into the new session of Parliament.
21 December 1965 - U.N.
General Assembly adopted the International Convention on the Elimination
of All Forms of Racial Discrimination.
14 April 1966 - The Minister
of Justice tabled in the House of Commons the Cohen Committee Report,
which he had received on 10 November 1965.
16 December 1966 - U.N.
General Assembly adopted the International Covenant on Civil and Political
Rights.
11 June 1970 - Parliament
adopted and Royal Assent was given to amendments to the Criminal Code,
based largely on Cohen Committee recommendations, to deal with the advocacy
of genocide and hate propaganda.
14 July 1977 - Parliament
adopted and Royal Assent was given to the Canadian Human Rights Act,
including a provision dealing with the communication of racial messages
by telephone.
17 September 1979 - The
Ontario Court of Appeal acquitted two Franco-Ontarians (Buzzanga and Durocher)
of charges under s. 319(2) of the Criminal Code because they
had not specifically intended to spread hatred.
30 April 1981 - The McAlpine
Committee presented its Report on the activities of the Ku Klux Klan to
the B.C. Minister of Labour. It recommended that the Criminal Code
be strengthened and that the B.C. Human Rights Code be amended
to deal with the advocacy of race hatred.
7 July 1981 - The B.C. Legislature
adopted the Civil Rights Protection Act, based in part on McAlpine
Report recommendations.
22-24 April 1982 - The Symposium
on Race Relations and the Law held in Vancouver adopted recommendations
on strengthening the hate propaganda provisions of the Criminal Code.
28 March 1984 - The Special
House of Commons Committee on Visible Minorities included a number of
hate propaganda recommendations in its Report Equality Now!
April 1984 - Patrick Lawlor
Q.C. presented his Report on Group Defamation to the Ontario Attorney
General.
25 May 1984 - The Manitoba
Human Rights Commission published a revised draft Human Rights Code containing
a hate propaganda provision.
20 June 1984 - The Government
of Canada tabled in the House of Commons its response to Equality Now!,
including provisions for dealing with hate propaganda.
27 August 1984 - The Canadian
Bar Association Special Committee on Racial and Religious Hatred published
its Report Hatred and the Law.
22 January 1985 - The Minister
of Justice told the Standing House of Commons Committee on Justice and
Legal Affairs that amendments to the hate propaganda provisions of the
Criminal Code would be forthcoming in February/March 1985.
April 1985 - The Special
Committee on Pornography and Prostitution in Canada (the Fraser Committee)
released its Report.
15 August 1986 - The Law
Reform Commission of Canada released its Working Paper (no. 50) on Hate
Propaganda.
4 May 1987 - Bill C-54,
an Act to amend the Criminal Code and Other Acts in Consequence
Thereof, received first reading. This bill died on the Order Paper with
the dissolution of Parliament on 1 October 1988.
20 June 1989 - In response
to a question put to him during consideration of estimates by the House
of Commons Standing Committee on Justice and Solicitor General, the Minister
of Justice indicated that a federal-provincial working group was considering
the hate propaganda provisions of the Criminal Code but that proposals
for change would await the decisions of the Supreme Court of Canada in
the Keegstra and Andrews/Smith cases.
13 December 1990 - The Supreme
Court of Canada in the Keegstra and Andrews/Smith cases
upheld s.319(2) of the Criminal Code as a reasonable limit on Charter-guaranteed
freedom of expression. On the same day, in the Taylor case the
Court upheld s. 13 of the Canadian Human Rights Act on the same
grounds.
27 August 1991 - The Supreme
Court of Canada upheld Ernst Zundels appeal and struck down s. 181
(wilfully spreading false news) of the Criminal Code as unconstitutional.
14-29 August 1994 - Public
allegations were made that CSIS was involved through a human source in
the establishment and activities of the Heritage Front. Both SIRC and
the House of Commons Sub-Committee on National Security undertook investigations.
15 December 1994 - SIRC's
report on a CSIS source inside the Heritage Front was made public. SIRC
concluded that many of the allegations were untrue and the source had
rendered useful service to CSIS. It recommended that a fuller policy for
the handling of CSIS sources be developed.
3 April 1995 - In response
to a question in the House of Commons, the Solicitor General indicated
that the government was considering possible ways to prevent the spread
of hate propaganda on the Internet.
19 June 1996 - The House
of Commons Sub-Committee on National Security tabled its report on the
involvement of a CSIS human source in the Heritage Front.
2 August 1996 - The Canadian
Human Rights Commission advised Ernst Zundel of its investigation of a
hate message complaint about his Internet Website. (This was the first
time this provision was used in this way.)
22 November 1996 - A Canadian
Human Rights Tribunal was established to consider the complaint about
Zundels Internet Website.
May 1997 - A Human Rights
Tribunal began its considerations of the Zundel Internet Website
complaint.
April 1998 - An internet
service provider in Oliver, British Columbia, who was alleged to be hosting
websites promoting hate, ceased operation.
15 June 1998 - Bnai
Brith Canada, at its annual meeting held in Ottawa, unanimously adopted
a resolution urging that Holocaust denial be made a criminal offence.
March 1999 - Participants
in an international symposium on hate on the Internet, held in Toronto
and organized by Bnai Brith Canada, recommended that the Criminal
Code be amended to make the downloading and possession of hate propaganda
with intent to promote hatred a criminal offence.
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*
The original version of this Current Issue Review was published in
January 1985; the paper has been regularly updated since that time.
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