Interpreting hate law can be a tricky issue
As I discussed briefly in a previous post, the Hamilton Police Hate Crimes Unit is investigating whether or not a hate crime was committed at a McMaster rally related to “anti-apartheid week.”
It is alleged that some students required counselling after hearing the words “death to Jews,” at the rally. Whether or not this is a hate crime is an interesting question. I can’t answer it definitively without all the facts, but I can provide some thoughts. If there are any lawyers reading that could provide some insight, please comment.
On his blog, Joey Coleman stated that though he found the event “disgusting” he doesn’t “believe a hate crime was committed.”
In the comments, Philippe Marchand says: “For one thing, it has to likely cause actual violence. It is clear that insulting someone’s religion or ethnicity, by itself, is not a hate crime. Said otherwise, hate is not illegal, using it for criminal means is.”
This is not entirely true. As Marchand acknowledges, he is referencing Canada’s hate propaganda laws, specifically section 319 of the criminal code. (He also mentions section 318, which makes it a criminal offence to advocate genocide).
However, there are two parts to section 319. Part 1 deals with what Marchand is discussing, public incitements directed at an “identifiable group” that are “likely to lead to a breach of the peace.”
Section 319(1) is a time and place restriction, similar to laws against incitement to riot. If any charges are eventually laid in relation to the McMaster rally, if this was the only recourse for such prosecutions, then it is quite possible that despite the vileness of the alleged statements, it would be quite difficult to prove breach of the peace, especially because there was no riot. This section is very rarely used and relatively uncontroversial.
Section 319(2), on the other hand, is much broader in scope and is what is often referred to when people discuss Canada’s hate propaganda laws. One of the more famous recent cases where this law was invoked, was the David Ahenakew case.
The law reads “Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of an indictable offense”
Section 319(2) doesn’t just refer to statements that are likely to lead to a “breach of the peace” but any statements that are circulated publicly, either at a rally, on the internet, through the press, or on a street corner. No proof of violence or the likelihood of violence need be provided. This section is much more controversial, though not as controversial as section 13 of the Canada Human Rights Act.
Section 319(2) has survived charter challenges for a number of reasons. For example, the promotion of hatred must be made “wilfully.” For example, though Ahenakew was initially convicted, the ruling was overturned because it was ruled on appeal that the prosecution could not prove he was “wilfully” promoting hatred.
Does yelling “death to Jews” at a public rally fall into the category of “wilfully”? I’m not sure, but certainly it seems a case can be made for it, otherwise why would the police be considering pressing charges?
Section 319(2) comes with four defences to help ensure the law is not misused, or excessively broad.
1) Truth
2) a) expressing an opinion on a religious subject b) expressing an opinion based on a religious belief
3) Public interest
4) Bringing to attention for purposes of removal matters tending toward hatred
The second defense is particularly interesting because in the first clause it excludes from prosecution opinions regarding religion. This helps to ensure no one is prosecuted for making blasphemous statements about any faith. It is a protection that acknowledges religious freedom.
So, if the words “death to Judaism” were yelled, though no doubt repugnant, prosecution might not survive the second defense.
The second clause of the second defense protects what might otherwise be considered hate propaganda if it was not based on religious belief. Religious statements that are negative about homosexuality would fall under this category.
The third defense is also interesting as it would appear to recognize that in the rough and tumble of public debate on such issues as immigration, affirmative action, and, in this case, the Middle East, bigoted statements are sometimes made, and although offensive (and sometimes deeply so) they would not qualify as the wilful promotion of hatred.
Say, for example, if the words “death to Israel” were uttered, prosecution likely would not survive the defences.
But the phrase “death to Jews,” as Jewish people are an identifiable people, would appear to be in a different category than extreme comments about religious doctrine, or off the wall statements about public policy.
So whether or not statements such as those alleged to have been made at the McMaster rally constitute a hate crime is not clear cut. The police would have to prove that hatred was wilfully promoted against an identifiable group. And, even if the police does believe this to be true, prosecution still might not happen, as it is a law that is utilized sparingly.
——————————————————————————————–
If anyone is curious about hate speech laws in Canada, and is looking for something to read, and you haven’t already read it, I would recommend L.W. Sumner’s excellent book The Hateful and the Obscene. Sumner applies John Stuart Mill’s famed harmed principle as it pertains to free expression to the Canadian case, and concludes that the costs of outlawing hate speech, as well as pornography, outweigh the benefits.
Also, Richard Moon’s The Constitutional Protection of Freedom of Expression is another fantastic book on the issue. Moon doesn’t just address hate speech laws, but all laws governing expression in Canada. Like Sumner he is critical of how the courts have interpreted the Charter, but he is equally critical of the libertarian position against any regulation of expression. He is ultimately supportive of our hate speech laws.
UPDATE: Some minor edits have been made to this post