Criminal Law Remedies to Combat Hate

Mark Sandler

Hate Propaganda Under the Criminal

Code• Advocating Genocide: s. 318(1)

• Public Incitement of Hatred: s. 319(1)

• Wilful Promotion of Hatred: s. 319(2)

• Forfeiture and Seizure of Hate Propaganda: ss. 319(4), 320, & 320.1

Advocating Genocide

318(1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Advocating Genocide“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: s. 318(2).

Advocating Genocide

“Identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation: s. 318(4).

Advocating Genocide

• The incitement to commit genocide must be both “direct” and “public”.

• The specific intent required for this offence is discussed in Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 91.

Public Incitement of Hatred

319(1) Every one 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 offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Public Incitement of Hatred

To contravene s. 319(1), a person must:• communicate statements, • in a public place, • which incite hatred against an identifiable group, • in such a way that there will likely be a breach of

the peace.

Public Incitement of Hatred

• “Communicating" includes communicating by telephone, broadcasting or other audible or visible means.

• A "public place" is one to which the public has access by right or invitation, express or implied.

• “Statements" means words (spoken, written or recorded), gestures, and signs or other visible representations: s. 319(7).

Wilful Promotion of Hatred319(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Wilful Promotion of Hatred

To contravene s. 319(2), a person must:

• wilfully

• promote hatred against an identifiable group

• by communicating statements

• other than in a private place.

Wilful Promotion of Hatred

319(3) No person shall be convicted of an offence under s. 319(2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

Wilful Promotion of Hatred

319(3) No person shall be convicted of an offence under s. 319(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

(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.

Defining “Wilfully”

• The accused only wilfully promotes hatred if he/her conscious purpose is to promote hatred or if he/she foresaw that the promotion of hatred was certain or almost certain to result.

• The mental element includes wilful blindness.

Defining “Hatred”

“Hatred is not a word of casual connotation. To promote hatred is to instil detestation, enmity, ill-will and malevolence in another. Clearly an expression must go a long way before it qualifies within the definition in [s. 319(2)].”

Defining “Hatred”

“Hatred is …a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation. In my opinion the term ‘hatred’ connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation.” (R. v. Keegstra, [1990] 3 S.C.R. 697)

Forfeiture Orders319(4) Where a person is convicted of an offence under section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, 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.

Seizure Warrants and Forfeiture 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 … authorizing seizure of the copies.

Seizure Warrants and Forfeiture

• ss. 320(2) and (3) mandate that a summons be issued to the occupier to show cause why the seized matter should not be forfeited. The owner and author of the matter may also appear to oppose a forfeiture order.

• s. 320(4) provides that the matter shall be forfeited if the court is satisfied that it is hate propaganda.

Seizure Warrants and Forfeiture

320.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds for believing that there is material that is hate propaganda or data that makes hate propaganda available, that is stored on and made available to the public through a computer system …that is within the jurisdiction of the court, the judge may order the custodian of the computer system to …

Seizure Warrants and Forfeiture…

(a) give an electronic copy of the material to the court;

(b) ensure that the material is no longer stored on and made available through the computer system; and

(c) provide the information necessary to identify and locate the person who posted the material.

Seizure Warrants and Forfeiture320.1(2) provides for notice to the person who

posted the material to show cause why the material should not be deleted.

If the person cannot be identified or located or does not reside in Canada, the judge may order the computer system’s custodian to post the notice.

Seizure Warrants and Forfeiture 320.1(4) provides that if the person who posted the

material does not appear, the court may proceed ex parte.

320.1(5) provides that if the court is satisfied, on a balance of probabilities, that the material is available to the public and is hate propaganda or data that makes hate propaganda available, it may order the custodian to delete it.

Hate Propaganda Generally• Proceedings may not be instituted without the

Attorney General’s consent for an offence under s. 318(1) or 319(2), or for warrants of seizure and related orders under s. 320(1) or s. 320.1.

• Consent is not required to institute proceedings for an offence under s. 319(1).

Non-specific Offences

Virtually any offence can be a hate motivated crime:

For example:

• Mischief: ss.430(1) to (4); (5) to (5.1)

• Assaultive offences and homicides

• Offering an Indignity to Human Remains: s. 182

Mischief to Religious Institutions Simple mischief to private property often fails to recognize

the seriousness of a hate crime; hence the introduction of s.430(4.1)

430(4.1) criminalizes mischief in relation to property that is a building, structure, or part thereof that is primarily used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religious, race, colour or national or ethnic origin.

Mischief to Religious InstitutionsThese offences may be prosecuted by indictment or

summarily.

• For indictable offences, liable to imprisonment for up to 10 years.

• For summary offences, liable to imprisonment for up to 18 months.

• No differentiation based on value of affected property.

• Significant enhancement to penalties available for conventional mischief to property.

Criminal Organization Offences• Participation in Activities of a Criminal Organization: s.

467.11

• Committing or Instructing the Commission of an Offence for a Criminal Organization: ss. 467.12, 467.13

467.1(1): A criminal organization is a group composed of three or more persons in or outside Canada that has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

Hate Motivation as an Aggravating Factor

718.2 A court that imposes a sentence shall take into consideration the following principles:

(a) (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 any other similar factor

... shall be deemed to be aggravating circumstances.

Indicia of Hate Motivation

Hate motivation can be proven circumstantially through, for example:

• Membership in Hate Groups

• Nature of property victimized

• Statements or gestures accompanying the actus reus

• Content of graffiti left behind

• The accused’s clothing, tattoos

• The significance of the date of the offence in hate ideology

• Motive by exclusion