Is Being Racist Illegal In Canada?

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A Richmond woman’s recent words have come to national attention after a heated exchange in a parking lot. We’ve all seen the video – a car is parked over the parking spot lines, touching the car in front of it. The owner of the car over the line yells ‘We don’t want you here because you can’t drive’. She then blows a raspberry at the owner of the other car, who remarks ‘You see? You’ve crossed the line’. The owner of the car parked over the lines mimics her, and then tells her to go back to China. She also goes on to swear at her extensively use various racial slurs. The woman filming alleged that the incident arose out of an innocent interaction. Here’s an uncensored copy of the Richmond parking lot rant:

https://www.cbc.ca/i/caffeine/syndicate/?mediaId=1592427075928

Amy Xu, the woman who filmed the incident, noticed the other car touching hers when she returned to the parking lot. She waited for the other driver to come so they could discuss the problem. The other lady allegedly asked Amy Xu where she was from before beginning her tirade. Clare Henning for CBC reports that CBC spoke with a woman who identified herself as Carla Waldman, the person allegedly on camera. Carla admitted that the cars were touching, but denies being a racist person. Although she did use racially charged language Carla stated “I don’t regret anything I said to her because she was a very mean person”.Carla’s now being investigated by the police for her words. Officers have met with both women, and are hoping other witnesses will be brought forward by the attention garnered by the story.

CTV News Vancouver reports that people who know the woman in the video say she has a history of mental health issues. Carla’s facebook page has been flooded with thousands of comments. At the time of writing a single status update from 2018 attracted over 7,000 comments. We’ve included some screenshots of a few of the comments left on Carla’s page. We believe that people are innocent until proven guilty in a court of law – so we have redacted certain information from the screenshots below. A person ought to be judged by a jury or judge on a full understanding of the case, not by social media alone:

All of this begs an important question: Is being racist illegal in Canada? This article will talk about the right of free speech in Canada, and will take a look at some of the history and law about hate crimes in Canada. We’re going to talk about the law and how it has been applied in other situations. Later, we’ll talk about the sentences for hate crimes in Canada.

The Charter of Rights and Freedoms

Section 2 of The Charter of Rights and Freedoms acknowledges everyone’s fundamental freedom of thought, belief, opinion and expression. It provides that everyone has the freedom of conscience and religion. Section 2 also lists the freedoms of peaceful assembly, and of association.[

But we skipped section 1. Let’s look at that now. Section 1 of the Charter states that the Charter guarantees the rights and freedoms set out in it – subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Quite a mouthful, and very meaningful. Over 5,000 publicly available reported cases cite section 1. The Charter has only been around for 37 years, and most cases are not reported. The Supreme Court has mentioned “hate speech” in relation to s.1 and s.2 of the Charter on a number of occasions.

Whatcott, Krymowski, and, ‘Your Ward News’

The Supreme Court most recently talked about s.1 and s.2 in the context of hate speech in a 2013 case called Whatcott. In Whatcott the appellant distributed flyers under the name “Christian Truth Activists”. People registered complaints under the Saskatchewan Human Rights Code. They alleged the flyers promoted hatred against individuals because of their sexual orientation. While Whattcott is a civil law case, in that it does not involve someone charged with a crime, the Court’s analysis remains relevant.


Activist William Whatcot (Ted Jacob/Postmedia News)

The Court held that the freedom of expression guaranteed in the charter was guaranteed “so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream”. The offensiveness of an idea does not exclude it from Charter protection, and is in itself not enough to limit expression under s.1.

The Court drew a distinction between expression of repugnant ideas, and expression which exposes groups to hatred. The Court set out the following test – would a reasonable person consider the expression vilifying a protected group had the potential to lead to discrimination and other harmful effects? The Supreme Court held that “[t]his assessment will depend largely on the context and circumstances of each case. This highlights the importance of having a skilled lawyer helping the person tell their side of the case.

The Supreme Court held that courts have to apply hate speech prohibitions objectively. This means the analysis should not be limited to the intensity with a person feels the emotion in question. The question is whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing a protected group to hatred.

Hatred is restricted to extreme manifestations of emotion. The Court used the words “detestation” and “vilification” to describe the emotions. The Court held that this does not include speech which does not incite “the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.”

Focus should be on the effects of the expression at issue, and whether it is likely to expose the targeted person or group to hatred by others. Offensiveness of an idea is not itself sufficient. The rules against hate speech are not designed to censor ideas, or to make anyone think “correctly”. Because of that, it also doesn’t matter whether the person making the expression intended to incite hatred – the key is in the effects.

The Court went on to consider whether the limit in question was justified under s.1 of the Charter. The Court found that the right to freedom of expression is not absolute, and that some limitations on the freedom of expression may be justified under s.1[. The Court engages in a balancing exercise. The Court balanced the fundamental values underlying freedom of expression (individual self-fulfillment, finding truth through open exchange of ideas, political discourse) with competing rights. In the context of this balancing the question is whether the infringement of the freedom to expression is demonstrably justified. The first step is to determine whether the objective of the legislation in question advances concerns of sufficient importance to warrant overriding the freedom of expression. Second it is necessary to consider if the legislation is proportionate to its objective.

The Court held that expression criticizing or creating humor at the expense of others can be hurtful, offensive, belittling, or repugnant. Saskatchewan’s legislation had rules against hate speech which would prohibit words that ‘ridicule, belittle, or otherwise affront the dignity of’ a group. But just because an idea is offensive, this is not a sufficient ground to justify infringing on freedom of expression. While that expression may result in feeling superior, it doesn’t expose the targeted group to hatred. The Court noted that there were circumstances in which ridicule could lead to exposure to hatred, but that ridicule, in the ordinary sense, would not typically have that potential]. Because of that, the Court struck words to that effect from Saskatchewan’s Human Rights legislation, finding them to be unconstitutional. The Supreme Court then conducted a s. 1 analysis of the provision without the struck out words, finding, in the end, that it was constitutional. Although this wasn’t a criminal case, it helps us see how the Supreme Court things about and approaches the freedom of expression.

Krymowski was a 2005 Supreme Court case involving a Criminal Code prosecution brought against a person who participated in a demonstration in front of a motel housing Roma refugees seeking entry into Canada. They were charged under s. 319 of the Criminal Code for the willful promotion of hatred against an identifiable group. The Court noted that the constitutional validity of s.319 had been upheld in Keegstra and that amendments to the section were immaterial. At trial the Court acquitted the defendants finding no evidence of hates, and no evidence that a gypsy is a pejorative term for Roma. The Supreme Court considered the factors of the case and set aside the acquittals, ordering new trials for the accused. Among the factors it considered was the historical persecution of gypsies by Nazis and various Nazi aspects to the demonstration (such as Nazi flags and salutes, and “white power” chants).

Last fall James Sears and LeRoy St. Germaine – a duo behind the “Your Ward News” newspaper – were charged under the Hate Propaganda provisions. They were convicted, despite stating they expected to easily beat the charges. The newspaper portrayed Jews as dogs, glorified Hitler, proclaimed women to be less than human and advocated rape.


James Sears, right, and LeRoy St. Germaine. (Colin Perkel/Canadian Press)

Hate Propaganda laws have bite, but they have their limits too. Freedom of expression remains a fundamental right in Canada, regardless of the ideas. There is no law against being racist. However – that doesn’t necessarily give one a right to promote hatred against others. Such propaganda may contribute to violence, as the Court in R v. Sears (the conviction of James Sears & LeRoy St.Germaine) noted at paragraphs 9-13. That’s why it’s not permitted.

Criminal Code & Hate Crime Sentencing in Canada

Now that we’ve seen what the Supreme Court has recently said about hate speech, let’s take a closer look at criminal offences involving hate speech. One, as noted in Krymowski, and Sears is s.319 of the Criminal Code.

Sections 318 – 319 of the Criminal Code deal with “hate propaganda”.

Section 318 states that everyone who advocates or promotes genocide is guilty offence. The Criminal Code defines genocide as killing members of a group or deliberately inflicting conditions of life on a group calculated to bring about its physical destruction. Identifiable group includes colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability. The maximum penalty under s.318 is up to 5 years.

Section 319 prohibits public incitement of hatred. It provides that everyone who communicates statements in any public place, inciting hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of an offence.

Section 319, subsection 2, provides that everyone who willfully promotes hatred other than in private conversation is guilty of an offence. Subsection 3 creates certain defences for people charged under s.319(2). No person is to be convicted if they establish the statements were true. Similarly, it is a defence is the person expressed an opinion based on a religious subject or an opinion based on belief in a religious text. It is also a defence if the statements were relevant to the public interest, the discussion of which was for the public benefit, and the person reasonably thought the statements to be true. It’s also a defence to refer to hate speech for the purpose of its removal.

Both 319(1) and 319(2) carry a maximum of up to two years.

There are a few other hate based sections in the criminal Code, some with quite severe penalties. For example, under s.430 a person can be accused of mischief if they wilfully destroy or damage property; or if they render it dangerous, useless, inoperative, or ineffective. A person can also be guilty of mischief or if they obstruct, interrupt, or interfere with the lawful use, enjoyment, or operation of property or with a person in their doing so. Mischief that causes an actual danger to life can lead to life imprisonment.

According to subsection 4.1, everyone who commits mischief in relation to religious property or educational institutions on the basis bias, prejudice or hate is guilty of an offence. If the offence is tried as an indictable offence, it can carry up to 10 years in prison.

Importantly, there is also a relevant sentencing principle in s.718.2 which must be considered. Section 718.2(a)(i) says that a court giving out a sentence must take into account as an aggravating circumstance, among other things, any evidence an 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, gender identity or expression, or similar factors.

Conclusion

This all brings us to another similar incident caught the public’s attention about two months ago. In late June there was an altercation between guests at Canada’s wonderland. The incident wound up being investigated as a hate crime. You can find a report on the incident from CityNews below. One guest was apparently spit on, and told to go back to her country. She was also punched, and her hijab was torn off. Both parties were ejected from the park. This is reminiscent of the incident in Richmond, and indeed is arguably even more extreme:

There was a thorough investigation from which police determined that the incident was not hate motivated. No charges were laid]. The National Council of Canadian Muslims, which initially called the incident “extremely troubling” was satisfied that the York Regional Police had conducted a thorough investigation. It turned out that the the emotional outbursts captured on video all came from someone cutting in line. According to the woman filmed in the altercation, the exchange began after a woman pushed her 4 year old out of the way to cut in line. She called the woman an “asshole”. The woman’s friends allegedly retaliated, and it kept escalating from there. As Brandy Lynn, the woman in the video acknowledges, the incident should have ended with the other woman and her walking away, but it did not.

Being racist is not illegal in Canada, but certain actions can fall afoul of the law. The law is particularly concerned with publishing, communications to groups, and public communications. The law protects expression, even if it is offensive or hurtful. But, as we’ve explored, this is not without limits. The focus is on effects. A lot of hate based matters are dealt with in the Civil or Human Rights systems. The Criminal Code only criminalizes certain hate based actions. The courts do not like to interfere with free expression, and there are a number of potential defences which can be argued against a charge under the Hate Propaganda provisions. But, it’s important to remember that whether there is a hate based motivation is a factor for sentencing in any crime.

Sometimes tempers flare up, and people say or do things they shouldn’t. Small incidents can easily be blown out of proportion, and things are not necessarily always what they seem. If you’re charged with a hate crime, having a competent experienced lawyer to help you navigate the system can make a big difference. A skilled lawyer can help you tell your side of the story and can help you show why you may not meet the necessary tests.

https://www.cbc.ca/news/canada/british-columbia/police-investigating-racist-rant-richmond-parking-lot-1.5258802
https://dailyhive.com/calgary/racist-richmond-video-rcmp-investigation
https://bc.ctvnews.ca/caught-on-camera-racist-rant-in-richmond-parking-lot-1.4563379
We will not link to Carla’s page. The RCMP has requested that the public refrain from commenting to avoid interfering with the investigation.
https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html
https://www.canlii.org/en/ca/scc/doc/2013/2013scc11/2013scc11.html
Ibid, Para 50.
Ibid, Para 51
Ibid, Para 52
Ibid, Para 56
Ibid, Para 57
Ibid, Para 58
Ibid, Paras 64-68
Ibid, Para 88-90
https://www.canlii.org/en/ca/scc/doc/2005/2005scc7/2005scc7.html
https://www.canlii.org/en/ca/scc/doc/1990/1990canlii24/1990canlii24.html
Supra, note 15, Para 16
Supra, note 15, para 19-24
https://www.cbc.ca/news/canada/toronto/your-ward-news-charges-laid-1.4403577
https://www.canlii.org/en/on/oncj/doc/2019/2019oncj104/2019oncj104.html
https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html
Criminal Code, s. 430
Criminal Code, s. 718.2
https://www.cbc.ca/news/canada/toronto/wonderland-hate-crime-investigation-york-police-1.5195949
https://www.cbc.ca/news/canada/toronto/wonderland-hate-crime-investigation-york-police-1.5207327
https://www.blogto.com/city/2019/07/canadas-wonderland-hate-crime-attack/
https://www.facebook.com/BlueButterflyKisses/posts/10158826181437501


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