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Old 11-07-2019, 11:57 PM
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Factual Discussion about Canada’s Hate Speech Laws


There’s a lively debate going on in GD about hate speech laws, and from time to time Canadian hate speech laws get mentioned: WaPo editorial "Why America needs a hate speech law"

I thought it might be helpful to have a discussion about Canada’s laws here in GQ to supplement that debate, but on the condition that it’s a factual discussion, not a debate about the merits of the Canadian laws. I’ve run the idea past the mods and they’re okay with me starting the thread, even though GQ normally starts with someone asking questions, provided it doesn't turn into a debate about the merits or demerits of the Canadian hate speech laws.

I’ll start with a short outline of Canadian hate speech laws and then invite anyone who has follow-up questions to post them. I’ll do my best to answer them, keeping it to factual and descriptive only. And anyone else who is familiar with the laws should feel free to jump in as well to reply to questions.

Parliament amended the Criminal Code in 1970, to create three new offences: advocating genocide; publicly inciting hatred likely to lead to a breach of the peace; and wilfully promoting hatred. All three offences turn on the concept of statements targeting members of an “identifiable group”, currently defined as “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.” The genocide offence carries a maximum sentence of five years. The public incitement offence and the wilful promotion of hatred carry maximum sentences not exceeding two years. If the Crown proceeds by indictment, the accused has a right to a jury trial. See: Criminal Code, ss. 318, 319.

There is no specific agency charged with enforcing the provisions. They are criminal offences that are investigated by the local police (Mounties, provincial police or municipal police, depending on the location), just like other allegations of criminal offences. If the police believe they have the basis for a charge, they begin the normal process for a criminal charge, which is then prosecuted by the provincial Crown prosecutors, again just like any other criminal offence. The one additional procedural requirement is that any charge of advocating genocide or wilful promotion has to be authorised by the provincial Attorney General. If the charge is laid, it is prosecuted in either the Provincial Court or the provincial superior court, depending if it’s summary or indictable.

The Supreme Court of Canada has upheld the Criminal Code offence of wilful promotion of hatred from constitutional challenge, on the basis that although it restricts freedom of expression, it is a reasonable limitation within the Canadian Charter’s framework. The leading case was almost thirty years ago: R. v. Keegstra, [1990] 3 SCR 697. The facts of that case were that Mr Keegstra was a school teacher in a high school in a small town in Alberta. For at least a decade, he was teaching his students anti-semitism in his social studies class. He was convicted and the conviction upheld. I won’t attempt to summarise the Court’s analysis. If you’re interested, click on the link and it will take you to the case.

There haven’t been a lot of charges under the provision. The Wikipedia article gives a good summary of the them. See Hate Speech Laws in Canada.

There has been one case that I know of where a political candidate was prosecuted under the offence of wilfully promoting hatred: R v Popescu, a decision of the Ontario Court of Justice in 2009. Mr Popescu was an independent candidate in the 2008 federal election in a riding in Sudbury. He was speaking at a high school all-candidates meeting and was asked about homosexuality. He replied that “homosexuals should be executed.” He was convicted of wilfully promoting hatred and sentenced to eighteen months probation.

Three of the provinces (British Columbia, Alberta and Saskatchewan) have civil restrictions on hate speech contained in their human rights codes. These provisions are not offences, but civil actions, carrying consequences such as damages and injunctive relief. The federal human rights law used to contain a similar provision, but it was repealed. In a companion case to the Keegstra case, the Supreme Court upheld the federal human rights provision: Canada (Human Rights Commission) v. Taylor, [1990] 3 SCR 892. The provisions of the human rights laws have not been invoked very often, but they have attracted considerable controversy in some instances. Again, the wiki article gives a good summary of the cases (but I would not recommend the rest of the wiki article for information about the provincial human rights codes, as it contains some fundamental errors, in my opinion.)

So, that’s my summary, expressed as factually as possible. Feel free to ask factual questions.
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Old 11-08-2019, 01:33 AM
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When I saw your title, I immediately thought of Ernst Zundel, but was surprised not to find him listed in your "Hate Speech Laws in Canada" link. Looking to Wikipedia I see mention of two criminal trials both overturned on appeal, the second time by the Supreme Court. My faulty recollection of the trials were that his holocaust denial activities were tried under the hate crime provisions, but looking further into this he was actually charged under section 181, "prohibiting wilful publication of false statement or news that person knows is false and that is likely to cause injury or mischief to a public interest" In the decision to uphold the appeal and dismiss the charges, the Supreme Court found that section 181 violates the freedom of speech section of the Canadian Charter.

I'm not sure that this question has a factual answer, but in hindsight would the crown have had a better chance at getting a conviction had they brought charges under the hate speech section of the criminal code?
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Old 11-08-2019, 02:14 AM
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In the US, many hate crime laws serve as an enhancement to other criminal offenses.
For example, painting graffiti on a building wall is vandalism, a minor criminal offense. But if the building is a synagogue and the painting is of a swastika, this can be a hate crime, with much higher penalties.

But the Canadian hate crimes you mention seem to be criminal offenses in themself, rather than enhancements. Am I understanding this correctly? And why were the laes passed that way?
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Old 11-08-2019, 09:21 AM
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Does Canada have any provision for enhancing/enlarging the groupings of people who cannot be targeted by such speech?

An admittedly stupid example would say that Canadians started picking on "blonde" people. It catches on and some go so far as to advocate harming such people. As specified now, blondes would not be a protected group. If violence/vitriol rose enough that they would need protection what would be the mechanism to add them (or any other group) to the protected list?
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Old 11-08-2019, 09:36 AM
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Question: how directly does one need to be "publicly inciting hatred likely to lead to a breach of the peace" or "wilfully promoting hatred" to qualify under those clauses?

Because there are a lot of political positions which could presumably lead people to breach the peace, or become haters. As just one example, suppose someone expresses the position that "too much immigration is harming the country and we should cut down on it"? Opponents of such positions frequently claim that these positions derive from racism and promote racism, and you could easily argue that it incites hatred (especially if accompanied by reasons for immigration being harmful).

My factual question is whether there is anything in the law itself which would preclude political positions of this sort from being prosecuted under the Hate Crimes law, or whether it's entirely dependent on the subjective judgement of any given prosecutor and jury.
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Old 11-08-2019, 09:43 AM
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In re Zundel


It's been quite a while, but my recollection is that the Crown's office in Ontario, where the Zundel case arose, refused to bring charges against him under the hate speech offence because they did not think Holocaust denial was in itself a hate crime under the terms of the offence.

The background was that Zundel was promoting pamphlets challenging the Holocaust, notably one entitled "Did Six Million Really Die?", arguing that it was all a hoax. My recollection (I was a law student in Ontario at the time, and was following it as an interesting case) is that the Crown's office said that a debate like that was not the sort of speech targeted directly at members of a religious group, and didn't infringe the hate speech provision.

The police and Crown therefore didn't lay any charges against Zundel, and because of the requirement that the Attorney General has to consent to charges under the hate crime legislation, there was no scope for a private prosecution, which is still an option for some offences under the Criminal Code.

Instead, one Jewish person laid an information charging Zundel with spreading false news, beginning a private prosecution:

Quote:
181. Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
This was an archaic provision that dated back to an English statute, the Statute of Westminster 1272. It had been carried forward in Canada, first by the reception of English statute law, then by being included in the first Criminal Code in 1892. It's not clear why it was carried forward, other than a good colonial attitude to English law (although it had actually been repealed in England a few years before).

The Crown then took over the prosecution of the offence and must have concluded that the pamphlet fit within it, and proceeded with the prosecution. Zundel was eventually convicted and appealed to the Supreme Court.

The Supreme Court held that the offence of spreading false news was unconstitutional, in a decision rendered the same day as Keegstra. The Court held that unlike the hate offences, the false news offence was too broadly written and did not target a narrowly defined type of harmful speech, as is the case with the hatred offences.

Technically, the offence stayed in the Criminal Code, but was unenforceable. It was repealed this year in a general law reform act that repealed old Criminal Code provisions, including ones that have been held to be unconsistutional and unenforceable.

For more information, here's the links to the SCC decision and the wiki article:

R. v. Zundel, [1992] 2 S.C.R. 731

R v Zundel
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Old 11-08-2019, 09:58 AM
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In re Enhancements


My understanding is that the drive for hate speech offences came first, in the 1960s, while the idea of sentence enhancements wasn't implemented until the 1990s.

There was a rise in speech targeting minorities in Canada in the 1960s, including anti-semitic statements, but also other minorities as well. The federal government struck a committee to investigate and make recommendations. The committee (which included a couple of future federal Justice ministers and one future prime Minister, Pierre Trudeau) made the recommendation for the creation of the three hate speech offences. I've not read the report and don't know if they considered sentence enhancements for other offences. I can only assume that they thought targeting the actual speech was the most effective remedy.

The bill implementing the three offences was passed in 1970, by which time Trudeau was Prime Minister.

Sentence enhancements came later, in 1995, with the enactment of a different provision in the sentencing provisions of the Criminal Code:

Quote:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
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Old 11-08-2019, 09:59 AM
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The human skidmark behind Your Ward News got 12 months of house arrest for the vile crap he was spreading. Their office used to be very close to me and I would get the publication in my mail box. I read through the first one and holy cow, it was such a disjointed mess of conspiracy theories and straight up hate I can't imagine anyone got anything out of it. But that is true of all racist and hate crap.
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Old 11-08-2019, 10:05 AM
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In re Enlarging the "identifiable groups"


Quote:
Originally Posted by BwanaBob View Post
Does Canada have any provision for enhancing/enlarging the groupings of people who cannot be targeted by such speech?
Yes, there is - a statutory amendment by parliament. Other than that, no.

It's a basic principle of criminal law that there has to be a clearly defined offence. That normally means by statute.* An over-zealous Crown prosecutor can't try to persuade a court to expand the scope of the criminal offence to include "blondes". Any attempt to do so would be stayed as unknown to law.

Now, if there is a serious enough problem with hate speech aimed at a group that is not currently included in the definition of "identifiable group", Parliament may consider adding that group.

For example, the scope of the "identifiable group" in the offence provisions has been expanded since 1970, by statutory amendments in Parliament. Two of the most significant expansions were the addition of sexual orientation and gender identity or expression.



*There are two old common law offences, contempt of court and contempt of Parliament, which are defined by centuries of court decisions).
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Old 11-08-2019, 10:35 AM
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The poster child for Canada's hate laws is David Ahenakew. He made some comments about Jews during a speech, then during an interview with a reporter expounded on those comments. Make no mistake, they were vile... but he was prosecuted, convicted, overturned on appeal and retried, where he was acquitted. As I understand it (IANAL) just saying a group is bad, is a disease, needed to be removed, etc. (his words) does not imply "inciting hatred" whatever that means.

(Of course, in the eyes of the extreme political correct, can a member of a discriminated minority be racist?)

The same might apply to Zundel. Disputing a historical fact, no matter what it shows about the person's mental state or intelligence, is not specifically inciting hatred. That people who fall for such fecal logic might then be inclined to hate... does not mean the person doing the disputing is actively inciting? Which then leads to the question - what exactly do you need to do to "incite hatred"?

As I recall from other discussions about inciting riots or inciting an assault or similar crimes, the wording has fairly specific - "Let's burn down that building" or "hit him, I'll pay for the lawyers" before it rises to the level of criminal conduct not simply free speech. Simply stating what your opinion is may not be sufficient.

Last edited by md2000; 11-08-2019 at 10:38 AM.
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Old 11-08-2019, 10:39 AM
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Quote:
Originally Posted by Fotheringay-Phipps View Post
Question: how directly does one need to be "publicly inciting hatred likely to lead to a breach of the peace" or "wilfully promoting hatred" to qualify under those clauses?
I'm not aware of any cases of the "publicly inciting hatred likely to lead to a breach of the peace", but the two leading cases on wilfully promoting hatred are the Keegstra case and R v Krymowski.

As mentioned earlier, Keegstra, a social studies teacher, taught anti-semitism as part of his social studies class in a public high school for about a decade, and would only give good grades to students who repeated the anti-semitic statements. Those who criticized them got bad grades. The fact that he was essentially indoctrinating young students under his supervision in antisemitism was a large part of the reasons for his conviction.

In R v Krymowski, there was a group of Roma refugees in a motel, under the care of the federal refugee protection officials. A group of people protested outside the motel, waving signs with anti-gypsy slogans. Here's the summary of the facts from the Supreme Court's judgment:

Quote:
Originally Posted by Supreme Court of Canada
Some weeks prior to this incident, there was a large influx of Roma refugee claimants into Canada which attracted considerable media attention and gave rise to some public controversy. On August 26, 1997, about 25 persons participated in a demonstration in front of the Lido Motel in Scarborough, Ontario, which at that time was temporarily housing the refugees while they awaited the outcome of their claims. The demonstration included chants and placards. The placards stated, among other things, “Honk if you hate Gypsies”, “Canada is not a Trash Can”, “You’re a cancer to Canada” and “G.S.T. — Gypsies Suck Tax”. The chants included statements such as “Gypsies Out”, “How do you like Canada now?” and “White power”. Some participants were seen giving the “Sieg Heil” Nazi salute. Nazi and American Confederate flags were used in the demonstration. Some of the clothing, accessories and footwear worn by the demonstrators was described as typical “Skinhead” accoutrements.
The Court held that met the requirements of the offence, set aside the acquittals, and ordered new trials.

Quote:
Originally Posted by Fotheringay-Phipps View Post
Because there are a lot of political positions which could presumably lead people to breach the peace, or become haters. As just one example, suppose someone expresses the position that "too much immigration is harming the country and we should cut down on it"? Opponents of such positions frequently claim that these positions derive from racism and promote racism, and you could easily argue that it incites hatred (especially if accompanied by reasons for immigration being harmful).
One of the defences to the offence of wilful promotion of hate would apply there:

Quote:
Originally Posted by Criminal Code
319 (3) No person shall be convicted of an offence under subsection (2)

(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
In fact, we just concluded a federal election where two of the political parties took positions advocating much reduced immigration to Canada: People's Party of Canada and Canadian Nationalist Party.

Quote:
Originally Posted by Fotheringay-Phipps View Post
My factual question is whether there is anything in the law itself which would preclude political positions of this sort from being prosecuted under the Hate Crimes law, or whether it's entirely dependent on the subjective judgement of any given prosecutor and jury.
This question may be veering into debate, so I'll keep the answer short. The court system contains protections against rogue Crown prosecutors generally, which applies to this offence, just like other criminal offence. The police and the Crown are bound by the law and the court decisions. The majority of the Supreme Court in the Keegstra case laid out in considerable detail the parameters of the offence, including the requirement for "wilful", the meaning of hate speech, the mental element, truth as a defence, and so on. If a Crown tried to advance a different approach in a criminal prosecution, the defence could challenge by moving to strike as not consistent with the law, or that the evidence put forth by the Crown did not meet the high standard needed for a conviction under this offence. In the case of a conviction, the decision of the Court, including instructions to the jury about the scope of the law, are subject to review on appeal to the appellate courts, including ultimately the SCC. The court system is built on a series of checks and reviews to keep prosecutors within the bounds of the law in all prosecutions, including hate speech prosecutions.
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Old 11-08-2019, 10:55 AM
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I would just like to add to NP's excellent posts the fact, doubtless unfamiliar to most Americans, that in Canada all criminal law is passed by the national parliament, not by provinces. Cases are, however, tried by "crown prosecutors" (equivalent to prosecuting attorneys) under provincial jurisdiction. Provinces can and do regulate civil law. Quebec starts with the old Roman civil code (although heavily modified) while I assume the other provinces start with the English common law.

Just to mention one example. A province could make abortion difficult in many ways, but one thing they could not do is make violations of their code a criminal offense. AFAIK, the provinces have given up on trying to make abortion difficult.
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Old 11-08-2019, 02:52 PM
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Thanks, NP, for starting this very interesting thread.

Quote:
Originally Posted by Northern Piper View Post
...If the Crown proceeds by indictment, the accused has a right to a jury trial....
But not if otherwise? Why draw that distinction?

Quote:
Originally Posted by Northern Piper View Post
...Three of the provinces (British Columbia, Alberta and Saskatchewan) have civil restrictions on hate speech contained in their human rights codes. These provisions are not offences, but civil actions, carrying consequences such as damages and injunctive relief. The federal human rights law used to contain a similar provision, but it was repealed....
Why?
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Old 11-08-2019, 04:40 PM
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Quote:
Originally Posted by Elendil's Heir View Post
Thanks, NP, for starting this very interesting thread.
Thanks also go to the mods. Normally a GQ thread starts with someone asking questions. I suggested that I start a thread to generate questions, to supplement the active GD thread, and they were good with it.

Quote:
Originally Posted by Elendil's Heir
Quote:
Originally Posted by Northern Piper
... if the Crown proceeds by indictment, the accused has a right to a jury trial...
But not if otherwise? Why draw that distinction?
This isn't specific to the hate speech offences. The Criminal Code draws a distinction between summary process and indictable. If the Crown proceeds on a charge summarily, then it's always judge alone, but with a lesser maximum sentence. If the Crown proceeds by way of indictment, the accused has a right to judge alone or judge and jury, but likely faces a higher maximum sentence.

Quote:
Originally Posted by Elendil's Heir
Quote:
Originally Posted by Northern Piper
Three of the provinces (British Columbia, Alberta and Saskatchewan) have civil restrictions on hate speech contained in their human rights codes. These provisions are not offences, but civil actions, carrying consequences such as damages and injunctive relief. The federal human rights act used to contain a similar provision, but it was repealed...
Why?
Some complaints were lodged against main-stream publications over articles published, such as the Mohammed cartoons, an extract from one of Mark steyne's books, and same-sex marriage. I believe all the complaints were dismissed either by the commissions, or by the courts, but it triggered a debate on whether the federal human rights act should have a civil hate speech provision. It was eventually repealed. In the interests of keeping this a factual discussion, I'll not say more than that, but refer you to a couple of wiki articles on the issue for further reading:

Human rights complaints against Macleans magazine:

https://en.wikipedia.org/wiki/Human_...azine#Ruling_2

Section 13 of the Canadian Human Rights Act:

https://en.wikipedia.org/wiki/Sectio...man_Rights_Act
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Old 11-09-2019, 12:06 AM
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Thank you!
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Old 11-09-2019, 10:11 AM
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Quote:
Originally Posted by Northern Piper View Post
It's a basic principle of criminal law that there has to be a clearly defined offence. That normally means by statute.* An over-zealous Crown prosecutor can't try to persuade a court to expand the scope of the criminal offence to include "blondes". Any attempt to do so would be stayed as unknown to law.
How certain are you that a court would stay the prosecution? In the U.S., the Supreme Court decided to expand "the right to privacy" into "legalized abortion", and overturned quite a lot of statutes when it did so.
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Old 11-09-2019, 12:10 PM
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That was a case of the US Court finding that criminal restrictions infringed the Constitution.

What you are proposing would be the Canadian Courts expanding the criminal law, beyond that set out by Parliament, not striking down a law. I'm not aware of any such case.
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Old 11-10-2019, 12:09 AM
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Quote:
Originally Posted by Northern Piper View Post
Parliament amended the Criminal Code in 1970, to create three new offences: advocating genocide; publicly inciting hatred likely to lead to a breach of the peace; and wilfully promoting hatred.
I'm wondering how "willfully promoting hatred" works in actual practice. Do the police have some sort of checklist or guide to help determine if it applies?

Even after reading the Wiki article, it still seems somewhat on the vague side. Isn't hatred, like beauty, in the eye of the beholder?
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Old 11-10-2019, 12:55 AM
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The Canadian Constitution is full of lawyer weasel words allowing the courts if they are so inclined to allow politicians to override any of the "guaranteed" rights - either because the restriction is "reasonable" or because the politicians choose to override it (overriding has to be regularly renewed). The overriding has, for example, been used to enforce the French language laws. Politicians saw what sort of uses plain-language rights for freedom of speech and other constitutional rights did in the US constitution and decided to avoid that messy limitation on government power.

Wikipedia:
Quote:
Precluding all the freedoms and forming the basis of the Charter, the very first section, known as limitations clause, allows governments to justify certain infringements of Charter rights. Every case in which a court discovers a violation of the Charter would therefore require a section 1 analysis to determine if the law can still be upheld. Infringements are upheld if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free society, and if the infringement can be "demonstrably justified." Section 1 has thus been used to uphold laws against objectionable conduct such as hate speech (e.g., in R. v. Keegstra) and obscenity (e.g., in R. v. Butler). Section 1 also confirms that the rights listed in the Charter are guaranteed.
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Old 11-10-2019, 11:19 AM
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Not sure if this is a question that has a factual answer or not but an answer given may at least have some facts to support it: what has been the impact of Canada's hate speech laws on the frequency and character of speech and/or crimes aimed against identifiable groups?

The data that I can find is that the long term trend has been a significant increase in hate crimes in Canada, peaking in 2017 with a 47% year on year increase, and dropping more modestly in 2018. But I am not finding sources for longer term trends that go back to before and after the laws were passed. It does seem that the relative increase of hate crimes in Canada in recent years is greater than the relative increase in the United States (47 vs. 17% increase in 2017 for example).

I apologize if this veers too far into a request for an opinion but I am looking for actual data.

Thanks.
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Old 11-10-2019, 11:26 AM
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Quote:
Originally Posted by BwanaBob View Post
An admittedly stupid example would say that Canadians started picking on "blonde" people. It catches on and some go so far as to advocate harming such people. As specified now, blondes would not be a protected group. If violence/vitriol rose enough that they would need protection what would be the mechanism to add them (or any other group) to the protected list?
There isn't a list.
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Old 11-10-2019, 01:39 PM
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Quote:
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I'm wondering how "willfully promoting hatred" works in actual practice. Do the police have some sort of checklist or guide to help determine if it applies?

Even after reading the Wiki article, it still seems somewhat on the vague side. Isn't hatred, like beauty, in the eye of the beholder?
If a potential case comes up, police would likely consult with the Crown to see if the legal test has been met, based on the case law, particularly from the Supreme Court but also from lower courts. Again, the offences are like other criminal,offences in our system. The interpretation that the courts give in their reasons flesh out the general words of the statutory definition of the offences. The statutes and the precedents together give the guidance to the police, the Crowns, and the defence counsel.

Personally, I think that the SCC has set a very high standard that has to be met in their reasons in the major cases on the interpretation of the offences.
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Old 11-10-2019, 01:40 PM
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In re statistical trends


I'm afraid I can't answer your question, DSeid. I'm just a lawyer, not a criminologist or sociologist.
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Old 11-10-2019, 01:50 PM
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Quote:
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There isn't a list.
Eh?

The list of protected characteristics is set out in s. 318(4) of the Criminal Code, which is the section defining the genocide promotion offence:

Quote:
Originally Posted by Criminal Code
318(4) In this section, identifiable group means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.
That list of identifiable groups also applies to the two offences in s. 319 (inciting hatred likely to cause breach of the peace, and willful promotion of hatred)

There are similar lists of prohibited grounds of discrimination in the provincial human rights codes which have prohibitions on hate publications.
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Old 11-10-2019, 02:21 PM
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I have a question.

If after 20 years of posting here you still don't understand the basic rules of the General Questions forum, how much confidence should we have that you actually understand the nuances of Canada's Hate Speech laws?
  #26  
Old 11-10-2019, 02:56 PM
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As stated in the OP, I ran it past the mods before starting this thread. They agreed that GQ was the best place for it.

If you think I've overstepped the boundaries of GQ, please feel free to draw it to the attention of the mods. .
  #27  
Old 11-10-2019, 03:04 PM
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You (the OP) have written here about protections against over-zealous or "rogue" Crown prosecutors charging folks willy-nilly with hate speech crimes.

Is there a protection against the reverse - where the relevant Crown prosecutor of the appropriate jurisdiction refuses to proceed against someone whose violation of the "willfully promoting hatred" statute seems blatant and obvious? Assume the violator has no special protected status such as being a politician (if I understand what you wrote correctly) but whose remarks are getting a following on social media. Further assume this is not one of the provinces that has civil penalties available. Are there steps that can be taken to out-flank this prosecutor? Who has the ability (or "standing" as we would put it in the US) to take those steps to pursue criminal charges?

I presume this is a question that would apply to any statutory offense, not limited to hate speech. So "Canadian Law 101" material.
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Old 11-10-2019, 03:06 PM
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Quote:
Originally Posted by Surreal View Post
I have a question.

If after 20 years of posting here you still don't understand the basic rules of the General Questions forum, how much confidence should we have that you actually understand the nuances of Canada's Hate Speech laws?
Moderator Note

If after 17 years of posting here you don't understand that you shouldn't junior mod, you have no call to question another poster's judgement. If you have a problem with a post, report it. As noted in the OP, this was cleared with the GQ mods beforehand.

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Last edited by Colibri; 11-10-2019 at 03:07 PM.
  #29  
Old 11-10-2019, 03:34 PM
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In Re Refusal by Crown to act


Roderick, you're right that this question applies generally to Canadian criminal law.

The basic principle is that both the police and the Crown have institutional independence in relation to laying charges and prosecuting them.

If a person thinks that a charge should be laid, they can report it to the police and make representations to the senior officers and Crowns if no action is taken, but ultimately the Crown prosecution office decides.

The courts will not review the exercise of prosecutorial discretion, absent evidence of abuse of power.

ETA: I'm not sure what you meant about politicians having protected status? They don't. They're subject to the criminal law like anyone else.

Last edited by Northern Piper; 11-10-2019 at 03:36 PM.
  #30  
Old 11-10-2019, 03:59 PM
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I'm afraid I can't answer your question, DSeid. I'm just a lawyer, not a criminologist or sociologist.
Thank you anyway. If you think of any idea of a good resource to visualize trends over the past several decades please let me know.
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Old 11-10-2019, 04:14 PM
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Just thought of the Canadian Centre for Justice Stats. They may have something.

https://www.cacp.ca/canadian-centre-...tatistics.html
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Old 11-10-2019, 04:28 PM
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Oops wrong link. That’s the chiefs of police.

Here’s the StatsCan link:

https://www.statcan.gc.ca/eng/subjec...me_and_justice
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  #33  
Old 11-10-2019, 04:39 PM
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Does Canada have any provision for enhancing/enlarging the groupings of people who cannot be targeted by such speech?

An admittedly stupid example would say that Canadians started picking on "blonde" people. It catches on and some go so far as to advocate harming such people. As specified now, blondes would not be a protected group. If violence/vitriol rose enough that they would need protection what would be the mechanism to add them (or any other group) to the protected list?
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There isn't a list.
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Originally Posted by Northern Piper View Post
Eh?

The list of protected characteristics is set out in s. 318(4) of the Criminal Code, which is the section defining the genocide promotion offence:



That list of identifiable groups also applies to the two offences in s. 319 (inciting hatred likely to cause breach of the peace, and willful promotion of hatred)

There are similar lists of prohibited grounds of discrimination in the provincial human rights codes which have prohibitions on hate publications.
Unless I read wrong from what is written, it is my understanding that RickJay was referring to groups of people, not groups of classes. The difference being the criminal code specifying laws against the discrimination towards 'blondes' versus one against 'hair colour.'

Last edited by orcenio; 11-10-2019 at 04:41 PM.
  #34  
Old 11-10-2019, 05:46 PM
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Oops wrong link. That’s the chiefs of police.

Here’s the StatsCan link:

https://www.statcan.gc.ca/eng/subjec...me_and_justice
I had found that but couldn't find the trending information over time that I am looking for on it. Thanks though. Appreciated.
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Old 11-10-2019, 09:12 PM
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I immediately thought of Canadian Psychology Professor Jordan Peterson and his insistence on NOT obeying a new law which commands the populace to address members of the Transgender Community in their preferred pronouns.

Peterson has stated he would accomodate a student who privately negotiated their preferred pronouns with him...he just feels it is "Unconstitutional" (whatever the Canadian equivalent) to be forced by law to alter speech.
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  #36  
Old 11-10-2019, 10:06 PM
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I immediately thought of Canadian Psychology Professor Jordan Peterson and his insistence on NOT obeying a new law which commands the populace to address members of the Transgender Community in their preferred pronouns.
That is Professor Peterson’s summary of the law in question. Others disagree with that interpretation.

The law added gender identity and gender expression to the protected grounds of the Canadian Human Rights Act. The purpose of the addition was to ensure that trans individuals cannot be denied services, accommodation, employment and so on because of their gender identity or expression. It does not say anything directly about forms of address.

Two other points: the Canadian Human Rights Act no longer has a hate speech provision in it, as mentioned earlier, so this amendment cannot be used to trigger a hate speech complaint. Second, Professor Peterson is employed by a university. Universities are not subject to the Canadian Human Rights Act, which only applies to businesses and institutions under federal jurisdiction. The federal amendments therefore do not apply to Professor Peterson in his job with the university.

For more information, see this wiki article on the amendments:

https://en.wikipedia.org/wiki/An_Act..._Criminal_Code
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  #37  
Old 11-10-2019, 10:15 PM
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Originally Posted by Enola Straight View Post
I immediately thought of Canadian Psychology Professor Jordan Peterson and his insistence on NOT obeying a new law which commands the populace to address members of the Transgender Community in their preferred pronouns.
That is Professor Peterson’s summary of the law in question. Others disagree with that interpretation.

The law added gender identity and gender expression to the protected grounds of the Canadian Human Rights Act. The purpose of the addition was to ensure that trans individuals cannot be denied services, accommodation, employment and so on because of their gender identity or expression. It does not say anything directly about forms of address.

Two other points: the Canadian Human Rights Act no longer has a hate speech provision in it, as mentioned earlier, so this amendment cannot be used to trigger a hate speech complaint. Second, Professor Peterson is employed by a university. Universities are not subject to the Canadian Human Rights Act, which only applies to businesses and institutions under federal jurisdiction. The federal amendments therefore do not apply to Professor Peterson in his job with the university.

For more information, see this wiki article on the amendments:

https://en.wikipedia.org/wiki/An_Act..._Criminal_Code
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  #38  
Old 11-10-2019, 10:25 PM
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Oops, double post. My phone’s connection to the SDMB hiccuped. Sorry.
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  #39  
Old 11-10-2019, 11:08 PM
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Originally Posted by Northern Piper View Post
Roderick, you're right that this question applies generally to Canadian criminal law.

The basic principle is that both the police and the Crown have institutional independence in relation to laying charges and prosecuting them.

If a person thinks that a charge should be laid, they can report it to the police and make representations to the senior officers and Crowns if no action is taken, but ultimately the Crown prosecution office decides.

The courts will not review the exercise of prosecutorial discretion, absent evidence of abuse of power.

ETA: I'm not sure what you meant about politicians having protected status? They don't. They're subject to the criminal law like anyone else.
That's me misunderstanding md2000's post about "overrides." No need to address it further if it's not relevant to my question.

For the rest, on a purely practical level, how hard is it in Canadian law to level a charge of abuse of power against a Crown prosecutor for failure to prosecute? How much evidence would one need to at least get court review of such a charge?

This question speaks to equal application of the law across jurisdictions, and possibly of equal application of the law's protection to different groups -- i.e. if a prosecutor decides to press one case but not another, where the hate speech targets were in different classes (racial vs. sexual orientation, for example). I hope that makes sense; if not, feel free to ignore this paragraph.
  #40  
Old 11-10-2019, 11:15 PM
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Unless I read wrong from what is written, it is my understanding that RickJay was referring to groups of people, not groups of classes. The difference being the criminal code specifying laws against the discrimination towards 'blondes' versus one against 'hair colour.'
But the law says "colour" not "skin colour" or "hair colour". and of course, hair colour is second only to skin colour as a very distinguishing feature of humans - it's on passports and drivers licenses. (although hair colour changes as we age or visit the hairdresser).

I suppose an enterprising judge could interpret that law as covering blondes. Or red-heads, they'd be more feisty about discrimination. But then, it would have to be supported all the way up to the supreme court, and the Canadian court is fairly good for common sense and liberalism.
  #41  
Old 11-10-2019, 11:23 PM
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ETA: Reply to Roderick:

I’m not aware of a case like that, so can’t really comment. The bar is pretty high to demonstrate abuse of office by the Crown. One other factor is that our Crown prosecution and police services are by law non-partisan. No elected Crowns or sheriffs or chiefs of police. That’s by design, to ensure charging and prosecution decisions are not made for political reasons.
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Last edited by Northern Piper; 11-10-2019 at 11:26 PM.
  #42  
Old 11-10-2019, 11:28 PM
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That's me misunderstanding md2000's post about "overrides." No need to address it further if it's not relevant to my question.

For the rest, on a purely practical level, how hard is it in Canadian law to level a charge of abuse of power against a Crown prosecutor for failure to prosecute? How much evidence would one need to at least get court review of such a charge?

This question speaks to equal application of the law across jurisdictions, and possibly of equal application of the law's protection to different groups -- i.e. if a prosecutor decides to press one case but not another, where the hate speech targets were in different classes (racial vs. sexual orientation, for example). I hope that makes sense; if not, feel free to ignore this paragraph.
Yes, the weaselly overrides apply only to making and enforcing laws. A law can be argued in court that infringing on the constitutional right is "urgent" or an "important objective". I used to joke that this is what allows us to have separate but equal(?) bathrooms for men and women, although I'm not sure how well that flies against today's political correctness. More likely, I would imagine if there were a Patriot Act in Canada, or a modern equivalent of interning the Japanese (Something Canadians were no slouches at either) then current hysteria might cause the courts to override what should be obvious rights. It avoids the sort of extreme defence of rights that is routinely applied in the USA. (Although that didn't stop them from interning Japanese or enforcing Jim Crow laws).

The other exception is when a provincial or government passes a law that they know blatantly violates rights (some of the charter rights) and want to immunize it against nullification. They can specifically state in the law that they are applying the "notwithstanding" clause - notwithstanding the charter right, this law overrides that right. Such an override must be renewed (passed by the legislature) every five years. Hence, the requirement in Quebec to use French rather than English in some situations overrides the charter right - for now. Ditto for the law against hijabs in Quebec.

Last edited by md2000; 11-10-2019 at 11:30 PM.
  #43  
Old 11-11-2019, 10:55 AM
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The example of a crown prosecutor doing his own thing, IIRC, was when the movie "Monty Python's Life of Brian" came out. I think it was the prosecutor in Sault Ste Marie that used an antiquated law and laid a charge of blasphemous libel against the theatre owner and the movie distribution company. It was widely ridiculed and the Attorney General(?) for the province stepped in and dropped the charges.

Always look on the bright side of life...♫
  #44  
Old 11-11-2019, 11:07 AM
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Section 1 of the Canadian Charter of Rights and Freedoms is the general guarantee of the rights set out in the Charter. It also provides that there can be reasonable limits on Charter rights, if they are “demonstrably justifiable in a free and democratic society”. (I presume these are the “weasel words” that md2000 is referring to.) In the Keegstra case, the majority of the SCC held that although the hate speech provision infringed freedom of expression, the restriction could be justified under s. 1 and therefore the offence was constitutional.

By comparison, in the United States, the First Amendment does not contain any such textual limitation: “Congress shall make no law ... abridging the freedom of speech...”. However, the Supreme Court has tempered that absolutist language by the simple expedient of saying that some types of speech are not “protected” speech and therefore can be regulated by government without infringing the First Amendment. See the wiki article : “United States Fred Speech Exceptions”.

https://en.wikipedia.org/wiki/United...ech_exceptions

I mention this to point out that both countries recognize that there are limitations on free speech guarantees. The Canadian constitution does so by means of an express textual provision. The US constitution does so by a judicial limitation on the apparently absolute language of the Constitution, by the Court simply declaring that certain types of speech are not “speech” for the purposes of the First Amendment guarantee.
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Old 11-11-2019, 11:38 AM
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...See the wiki article : “United States Fred Speech Exceptions”....
That Fred. Always with the speeching.
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Old 11-11-2019, 11:40 AM
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I knew someone would nail me on that.
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  #47  
Old 11-11-2019, 01:15 PM
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I immediately thought of Canadian Psychology Professor Jordan Peterson and his insistence on NOT obeying a new law which commands the populace to address members of the Transgender Community in their preferred pronouns.
There is no such law. If Peterson said there was, he is a liar.
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Old 11-11-2019, 11:20 PM
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At the time of a pertinent interview on the matter, the bill was supposedly in the process of being ratified. Also, I heard some Canadian hate-speech law had indeed been passed according to NPR/PRI/BBC.
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  #49  
Old Yesterday, 01:28 AM
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Please see post 36 above, and the link to to wiki article given therein for information on the Pederson matter.
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Old Yesterday, 02:50 AM
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My understanding of the Peterson situation was that he initially faced a possible fine over the pronoun issue from the Ontario Human Rights Commission and under the respective provincial Code. And apparently this was enough of a legitimate issue that the counsel for the University of Toronto, Peterson's employer, advised him that not only could he be fined but that the university, as his employer, could be found vicariously liable as well.

And frankly, from what I saw and read, those rebutting Peterson's position were quite disingenuously dismissing his concerns with pedantry such as characterizing such a violation as "illegal but not criminal" because the penalty was limited to a fine but not imprisonment. Of course this ignores the fact that: 1) a substantial fine plus legal fees plus the potential negative consequences of incurring similar costs to his employer seems anything but inconsequential, and 2) Peterson had repeatedly stated he wouldn't pay such a fine on principle and his failure to do so could in fact lead to imprisonment.

I'm certainly no expert on Canadian Law but I am pretty familiar with careful and deliberate lawyer-speak and weasel-words in general. And it was on full display by those who were trying to downplay the whole situation.

Last edited by DirkHardly; Yesterday at 02:54 AM.
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