Hate Crimes - What are Hate Crimes?
Hate Propaganda and The Criminal Code in Canada

Hate crimes are criminal acts - such as vandalism, arson, assault, or murder - committed against someone because of his or her race, religion, sexual orientation, ethnicity, disability, or gender. In a hate crime, the person is selected because of a characteristic that he or she cannot change.

Hate incidents are actions motivated by prejudice that aren't necessarily crimes, but are harmful nonetheless.

Distinguishing between what is legal and illegal can be confusing. Why? Because we also know that our Constitution protects our freedom of speech, expression, and thought. No one wants to punish people for their beliefs or for what they say. But we do want to ensure the civil rights of all individuals and punish behavior that violates these rights.

The following can help you sort out some of the confusion. Some things are illegal. Others, while legal, are simply not okay. Read the list below, and then think about your own experiences.

What is NEVER Allowed:

Some forms of hateful activity are against the law. Committing a crime against someone because of his or her race, religion, sexual orientation, ethnicity, disability, or gender, such as:

• Unwanted physical contact of any kind.
  
  
• Physical violence of any kind: hitting, kicking, biting, scratching, stabbing, shooting.
  
  
• Threats of bodily harm.
  
  
• Harassment: inappropriate, unwanted behavior that disturbs someone and makes the person afraid of his or her safety.
  
  
• Threatening letters or e-mail messages.
  
  
• Destruction of property - graffiti; throwing eggs; defacing lockers, homes, cars, grave sites, books, etc.

What is NOT COOL:

Just because something is legal, doesn't necessarily mean it is okay.

• Verbal violence - slurs, name calling, insults.
• Drawing or writing hateful words or symbols on your personal property.
• Wearing racist, homophobic, sexist, or otherwise hateful symbols on your clothing or skin.
• Making prejudiced comments.
• Telling racist, homophobic, sexist, or other offensive jokes.

What is Cool:

Sometimes we have to talk about hatred in order to stop it.

• Having honest discussions about race, gender, religion, ethnicity, culture, etc., in an attempt to learn about each other.
  
  
• Examining stereotypes you see in books, magazines, music, television, movies, public speeches, and everyday language and speaking against them.
  
  
• Challenging someone who displays hateful symbols or makes prejudiced comments.
  
  
• Telling someone how you feel when you witness hatred, discrimination, and prejudice.
  
  
• Speaking for someone who can't speak for himself or herself.
  
  
• Speaking out when you feel something is unjust.
  
  
• Questioning authority and institutions that allow or encourage hateful attitudes or behaviours.

Excerpted from the StoptheHate.Org website www.stopthehate.org from this pinpoint URL:
http://www.stopthehate.org/get_involved/students/empower/hatecrime_what_is_one.php

Hate on the Internet

Canadian Ken McVay knows a lot about hate in Cyberspace. In 1994, McVay was surfing the Net when he came across some grossly anti-Jewish material. In response, McVay started the Nizkor Project. (Nizkor is Hebrew for "We will remember".) The Nizkor Project has a web site with the largest electronic collection of information about the Holocaust and cyber-racists in the world. Soon the site will have more than 1 gigabtye of facts, eye-witness testimony and other data. It's one of the best (if not the best) web site fighting hate in Cyberspace. It's an incredible site to visit - and a great place to learn how to fight hate.

But what about the activities of the neo-Nazis and racists that McVay battles with? How does the law deal with hatred? Aren't there rules stopping people like Inbred Jed from harming others with their hate?

Hate Propaganda and The Criminal Code in Canada

Two sections of the Canadian Criminal Code make hate a crime: sections 318 and 319. To define each crime, read the section and look for the actus reus (or the criminal act) and the mens rea (or the mental element) of the offence.

The Code is very specific about how it defines a crime - both the criminal act and the mental element of a crime need to be proved. It isn't enough that someone has said something hateful or untrue. The courts will only find someone guilty if they have done exactly what the Code says they can't do - and if they did it on purpose.

Let's look at how the Code defines the criminal action and the guilty mind for a particular crime.


What is Advocating Genocide?

To find out exactly what the Code means by "advocating genocide", let's start with the criminal act of the offence. Section 318 makes it a crime to "advocate or promote genocide".

1. To "advocate" or "promote" something is to try to convince other people it's a good thing to do.
2. "Genocide" is defined in the section above - it means to kill members of an "identifiable group" or to create living conditions which will kill them.

So the criminal act of "advocating genocide" is to support and argue for the killing of members of a group because of their "colour, race, religion or ethnicity".

The mental element of this crime is to do this on purpose, with the intention of destroying the members of the group.

Was Inbred Jed Advocating Genocide?

Let's see how this law affects Inbred Jed. You'll recall that Inbred Jed sent a message saying "Death to homosexuals!" Is Inbred Jed guilty of advocating genocide?

Jed may be promoting the death of a group of people, but look more closely at the definition of "identifiable group". It includes people grouped together because of their "colour, race, religion or ethnicity". It doesn't include sexual orientation. Even though Jed may have intended to support the killing of a group of people - in other words, even though Jed had the mental element of the crime - the criminal act is missing. The group he hated wasn't based on colour, race, religion or ethnicity, so Jed can't be put in jail for the crime of advocating genocide.

The Universal Declaration of the Human Rights recognizes that all persons are born free and equal, and are entitled to live with dignity and exercise the same rights. Yet in Canada, our Criminal Code violates human rights and the basic principle of equality, by excluding sexual orientation and ability as a protected class under Code's hate propaganda sections. It's time to add sexual orientation and ability as a protected class under the Criminal Code's hate propaganda section, to join the other categories of colour, race, religion and ethnicity. The religious right obviously stands opposed to any amendment to include sexual orientation to the Code because they could find themselves in jail if they were to preach that homosexuality is evil or sinful. It's time for zero-tolerance for any and all hate-crimes perpetuated against gays, lesbians, bisexuals, two-spirited, transgendered individuals and persons with disAbilities. ~ Barbara Anello, DAWN Ontario

Public Incitement of Hatred - Section 319(1) of the Criminal Code

The first part of section 319 (s. 319(1) or section 319, subsection 1) of the Code makes it a crime to "publically incite hatred". Read the section and look for the criminal act and the mental element of the crime.

SECTION 319.
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.

. . . . .

Definitions

319. (7) In this section,

"communicating" includes communicating by telephone, broadcasting or other audible or visible means;

"identifiable group" has the same meaning as in section 318;

"public place" includes any place to which the public have access as of right or by invitation, express or implied;

"statements" includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.

What is Inciting Hatred?

The criminal act of inciting hatred has a lot of different parts. It includes:

• communicating statements
  
• in a public place
• inciting hatred against an identifiable group
• and it's likely there will be a breach of the peace

You need to prove all of the criminal act - if any one part is missing, then the accused is not guilty.

Was Inbred Jed Inciting Hatred?

First of all, Jed has to communicate a statement. A statement is defined in section 319 subsection 7. It includes spoken words, written words or recorded words. But it means more than just words. A statement also includes gestures and signs. In Inbred Jed's case, he used words to make his statement. The words were recorded electronically and sent in an electronic mail message. Looks like the law has him on this one.

How about communicating? Communicating a statement is easy to understand when someone is speaking to a crowd at the local arena. But Jed sent his statement by electronic mail. Section 319 subsection 7 tells us communicating includes communicating by "telephone, broadcasting or other audible or visible means". Jed's statement showed up on the computer screen of the person he sent it to. That's a good argument that his statement was communicated by "visible means". So far, so good.

Second, the statement has to be communicated in a public place. This is a tricky part. Section 319 subsection 7 says a public place includes any place the public is free to go or is invited to go. Usually, that means a place like a public park or a sports arena. But Jed's message was sent over the Internet.

The Internet is a computer network. There are public places on the Internet - this page is one. Anyone can come here once they connect their computer to the Internet. But Jed didn't put his message on a Web page. He sent it by electronic mail. The only one who was supposed to read it was the person he sent it to. E-mail is more like regular mail (or "snail mail" in cyber-speak) - and people think of their mail as private. Since Jed sent his message to just one person, chances are a court would say it was not communicated in a public place.

Third, Jed's statement must incite hatred against members of an identifiable group. Inciting hatred means to stir up or encourage hatred. Wishing people death and threatening them sure encourages hatred. But section 319 subsection 7 tells us that identifiable group means the same thing as it does in section 318. It includes people grouped together because of their colour, race, religion or ethnicity. It doesn't include sexual orientation. So once again, this part of the criminal act is missing.

Fourth, the statement must be "likely" to lead to a "breach of the peace". Breaches of the peace are illegal acts, and they include things like a public argument, a fist fight, or any disturbance of public order, like rioting or looting. But for this crime, there doesn't have to be actual violence. It's enough if the statement will probably lead to a breach of the peace. Jed's statement contains strong, hateful words. He also said "Better watch out next Gay Pride Week" and signed the message "Winnipeg's newly formed gay bashing patrol". On the face of it, Jed's words will probably lead to violence. It's "likely" the fourth part of the criminal action can be proved in court.

So much for the criminal act. What about the mental element? The mental element of the crime of inciting hatred is to do all of the above on purpose. Jed meant to send his message, and he used the words he used on purpose. But even if he meant to spread a hateful message over the Internet, part of the criminal act is missing. So Jed isn't guilty of publically inciting hatred.

Wilful Promotion of Hatred - Section 319(2) of the Criminal Code

The second part of section 319 (s. 319(2) or section 319, subsection 2) of the Code makes it a crime to "wilfully promote hatred". Once again, read the section and look for the criminal act and the mental element of the crime.

SECTION 319.
Wilful promotion of hatred

319. (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.

. . . . .

Definitions

319. (7) In this section,

"communicating" includes communicating by telephone, broadcasting or other audible or visible means;

"identifiable group" has the same meaning as in section 318;

"public place" includes any place to which the public have access as of right or by invitation, express or implied;

"statements" includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.

What is Wilfully Promoting Hatred?

The criminal action in section 319(2) is to:

• communicate statements
• other than in a private conversation
• the statements promote hatred
• the hatred is against an identifiable group

The first part is the same as communicating statements in inciting hatred above. What's different about this crime is that it includes any communication other than a private conversation. Once again, the courts will have to decide whether or not a conversation between two people over the Internet is private.

"Promoting" hatred means to encourage people to hate, or to try to convince them it's a good thing to do. But the hatred must be against an "identifiable group" as it's defined in section 318.

The mental element of the crime is to "wilfully" promote hatred - in other words, to do it on purpose.

Section 319 also lists a number of interesting defences to the crime of promoting hatred. Canadian law tries to protect people from hate and protect free speech at the same time. Check out the defences and see if you think they make sense.

Was Inbred Jed Wilfully Promoting Hatred?

Once again, Jed's message doesn't fit into this crime because the group he hates is not "distinguished by colour, race, religion or ethnic origin". The fact that Jed was doing something hateful and harmful to society "on purpose" is still not enough to find him guilty of promoting hatred, because part of the criminal act is missing.

Other Crimes Motivated By Hate

Hate propaganda crimes are hard to prove and there have only been a few times when people have been charged. But there are other crimes that often fit the bill.

Other crimes which are often related to hate are:

• Assault ( section 265) - Hitting or pushing another person is an example of assault.
• Mischief ( section 430) - Painting graffiti on gravestone is an example of mischief.
• Arson ( sections 433 and 434) - Setting someone's house on fire is an example of arson.

Check out each section and look for the criminal act and the mental element. Surf through the Supreme Court cases and search for examples of these crimes. (en Français http://www.lexum.umontreal.ca/csc-scc/)

Hatred and the Sentencing Reform Bill

Now you know that if someone writes racist graffiti on your vechicle, he or she will be charged with mischief. But the fact that the crime was motivated by hate means there are two problems: the damage to the property, and the spread of hate. To make it easier for the law to combat hateful crimes, the government has decided to add a new section to the Code.

The Sentencing Reform Bill says that when a crime is motivated by hate based on any of these things, then the Court must give the offender a harsher penalty.

• race
• nationality
• colour
• religion
• sex
• age
• mental or physical disability
• sexual orientation

This way, it will be easier for the law to stop people from hurting others because of hate.


Excerpted from The Law Room on Canada's SchoolNet - What is Hate Crime?
www.uottawa.ca/hrrec/lawroom/whathate.html

TAKE ACTION - Please phone, write, fax or e-mail the Justice Minister today!

Tell him it’s time to take action to protect lesbians, gays, bisexuals, two-spirited and transgendered people from hatred and violence;

Ask when he will be amending the Criminal Code to include lesbians, gays, bisexuals, two-spirited and transgendered people within the hate propaganda provisions;

Ask when he will reform provocation law so that gay-bashers can no longer rely on the discredited ‘homosexual panic’ defence to justify violence against members of our communities.

You can contact the Minister of Justice (postage free)

The Honourable Martin Cauchon
Minister of Justice and Attorney General of Canada
Justice Building,
Kent and Wellington Streets
Ottawa, Ontario
K1A 0H8

Telephone:
(613) 995-7691

Fax:
(613) 995-0114

Email:
Cauchon.M@parl.gc.ca

---

 

Links:

Make gay-bashing a hate crime, Robinson says (CTV.ca)
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1053095314230_135/?hub=Canada

Antihate laws must shield gays
http://www.psac.com/bc/about/committees/GLBT/documents/antihate_laws_must_shield_gays.htm
By Svend Robinson, Tuesday, May 27, 2003 - Page A19 Globe and Mail

EGALE Canada
http://www.egale.ca/

EGALE Canada advances equality and justice for lesbian, gay, bisexual and transgendered people, and their families, across Canada. EGALE has been very active working for gay and lesbian rights all across Canada.
In particular: EGALE was: instrumental in holding the Government to its commitment to add "sexual orientation" to the Canadian Human Rights Act; successfully lobbied for federal hate crimes laws to protect lesbians and gays from gay-bashing; intervened before the Supreme Court of Canada in support of same-sex relationship recognition; has developed active membership in every province and territory of Canada; has represented Canadian gays and lesbians at international conferences, including the Beijing Women's Conference and the Vienna U.N. Conference on Human Rights; EGALE experts have testified as witnesses before human rights tribunals.

League for Human Rights of B’nai Brith Canada
http://www.bnaibrith.ca/league/league.htm

The League for Human Rights of B’nai Brith Canada is dedicated to combatting antisemitism, racism, and bigotry. The objectives of the League include the protection of human rights of all Canadians, the development of positive inter-community relations, and the elimination of racial discrimination and antisemitism. Working in co-operative association with the Anti-Defamation League of B’nai B’rith, the League for Human Rights of B’nai Brith Canada accomplishes its goals through legal legislative initiatives, intercultural dialogues, community coalitions and educational programming. The League provides training programs and resource material in the areas of racism, human rights, multiculturalism, harassment and equity issues.

Anti-Hate Hotline 1-800-892-2624 (BNAI)
A toll-free number enables direct reporting to the National Office of all hate incidents and suspected hate group activity. Confidentiality is assured, incidents are documented, and callers are directed to those who can assist them in their local areas.

Return to DAWN Ontario index page

Go To Top

Page last updated August 3, 2003 - for RH