5. LEGAL REMEDIES - THE LAW IN CANADA

5. LEGAL REMEDIES - THE LAW IN CANADA

Hate crime law and civil rights protections can be an effective deterrent to hate. First, those convicted of committing crime may end up in prison. This provides direct education to young people who flirt with joining hate groups and may serve as an important deterrent to joining and committing hate crime. Second, civil remedies can also be effective. For example, some of the key white supremacist groups in the United States have been forced to liquidate their assets to pay court costs and/or pay for civil rights violations. Civil remedies are much weaker in Canada and hate groups have been much more successful in suing anti-racist and ant-fascists for libel and defamation than anti-racists and anti-fascists have been in bringing hate mongers to justice. But this should not stop anti-racists from using legal remedy when possible. It is important to use each and every tool that is available and to lobby for better hate crime laws and to elect politicians who the development of tougher laws and support the prosecution of hate crime.

CRIMINAL CODE PROTECTIONS

Sections 318 of the Code states that anyone who advocates or promotes genocide is guilty of an indictable offense, where genocide refers to the intent to destroy in whole or in part any identifiable group. Section 319 (1) states that anyone 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 an offense. Section 319 (2) also makes it an offense under the Criminal Code to willfully promote hatred against an identifiable group other than in private conversation. The Code also allows the seizure of hate propaganda which is kept in premises for distribution or sale. The maximum sentence for advocating genocide is five years imprisonment. A person charged with inciting hatred or wilfully promoting hatred is liable to two years imprisonment if prosecuted by way of indictment or to six months and/or a $2,000 fine if by summary conviction.

There are four statutory defence against the charge of wilfully promoting hatred: 1) the statements communicated were true, 2) the statements expressed in good faith an opinion upon a religious subject, 3) that the statements were made on a subject of public interest which, on reasonable grounds, are believed to be true, and 4) pointing out in good faith, for purpose of removal, matters tending to produce feelings of hatred. In addition, the consent of a provincial Attorney General is required to initiate prosecution under the Code for advocating genocide or promoting hatred.

These very liberal defenses provided in law and the fear that charges under the Criminal Code for the promotion of hatred and genocide will give hate mongers free publicity have prevented charges against obvious hate mongers. As one senior Crown Council stated, there is fear that "an acquittal may well be seen as a vindication of the offender's views." It has also been felt that human rights statues are a more effective means of preventing hate. This is line with the minority opinion of the Supreme Court in the case of James Keegstra who was found to have breached Section 319(2) for anti-semitism. As Madame Justice Beverly McCloulin, wrote in the minority decision, argued 319 is not a reasonable limit on freedom of expression and that human rights legislation was a more appropriate remedy than criminal law. In the Keegstra case, for example, the Supreme Court of Canada found in a narrow 5 to 4 decision that Section 319 (2), of the Criminal Code places a justifiable limit on freedom of expression as protected by Section 2B of the Charter of Rights of Freedoms. This kind of thinking has resulted in a paucity of charges under the Criminal Code. Madame Justice Beverly MacGloughlin is now ...

SIDE BAR DEFINITION OF HATE

Hate has been defined in a number of Supreme Court rulings. Supreme Court Justice Dickson states that hate is not just a matter of discrimination or offensive comments. In the Keegstra decision - a former Alberta teacher convicted of breaching Section 319(2) -Dickson states that hate "connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation." Or as Supreme Court Justice Cory stated in the Andrews case: "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 that definition."

CASE STUDY CRIMINAL LAW

There are only a handful of prosecutions under sections 318 and 319 of the Criminal Code. James Keegstra was an Alberta secondary school teacher charged in 1984 with teaching anti-semitism. Keegstra taught his students that Jews are evil and described Jews as "treacherous", "subversive", "sadistic", "money-loving", "power hungry" and "child killers". He accused Jews of creating and perpetuating a myth that millions of Jews were killed by Hitler to gain sympathy. He compiled his students to accept his teachings or receive lower marks for class room work.

Keegstra was convicted of communicating hatred, but his conviction was over-turned by the Alberta Court of Appeal on the grounds that Section 319(2) violated Sections 2(b) and 11(d) of the Charter. The Crown appealed and in a 4-3 decision the Supreme Court upheld the constitutionality of Section 319(2). The Supreme Court held that Section 319(2) violated the Charter, but that the violation was justified. Keegstra's conviction was therefore allowed to stand.

In justifying the decision of the Supreme Court, former Chief Justice Dickson stated that "Parliament has recognized the substantial harm that flow form bate propaganda, and in trying to prevent the paid suffered by target group members and to reduce racial, ethnic and religious tension in Canada has decided to suppress the wilful promotion of hatred against identifiable groups." Chief Justice Dickson also argued that the benefits of Section 319(2) outweigh its restrictions on Charter rights and freedoms. He concluded that the objective of promoting equality and dignity was of substantial importance and that the expression was of little value. The dissenting opinion was written by Madam Justice McLachlin who found that Section 319(2) was overly broad and vague. The term hatred was thought to be inherently subjective ad that Section 319(2) would have a chilling effect on legitimate debate.

Don Andrews was the leader of a white supremacist organization based in Ontario known as the National Party. This nationalist party produced a newsletter called The National Reporter which promoted white supremacy, decried "race-mixing" and denied the Holocaust. Andrews was convicted under Section 319(2) of the Criminal Code in 1985 and received 12 months in prison. Andrews appealed the decision to the Ontario Court of Appeal, but the appeal was rejected. Andrew's sentence was reduced, however, from 12 months to 3.

Ernst Zundel was convicted in 1985 for spreading "false news" about the Holocaust under Section 181 of the Criminal Code Of Canada. The charge for wilfully promoting false news was made because of the distribution of a 32 page pamphlet, Did Six Million Really Die? and The West, War and Islam. The latter pamphlet was written by the former deputy chairman of the fascist National Front for Historical Truth in Britain. Zundel co-authored The Hitler We Loved and Why. In 1992 the Supreme Court of Canada struck down Section 181 as an unreasonable limit to freedom of speech as guaranteed by Section 1 of the Charter of Rights and Freedoms, thus overturning Zundel's conviction by the Lower Court. The decision of the Supreme Court, however, did not exonerate Zundel. The decision simply pertained to Section 181 of the Criminal Code. A private citizen in Toronto decided to invoke Section 181 because of frustration with the Attorney General of Ontario who had refused to charge Zundel under the appropriate Sections of the Criminal Code for distributing hate propaganda.

In 1997, George Burdi (aka Rev. George Hawthorn) was charged under Section 319(2) for spreading hatred. Burdi was the young leader of the violently racist and homophobic World Church of the Creator in Canada during the early 1990s and was influential in the equally violent Heritage Front led by former head of the Ku Klux Klan, Wolfgang Droege. Burdi, along with two US nationals, were the founders of a magazine called Resistance and produced racist rock CDs for sale. The case is awaiting trial.

FEDERAL HUMAN RIGHTS LEGISLATION

The Canadian Human Rights Act has been one of the most important legislative tools to stop hate in Canada. Section 13 subsection 1 of the Canadian Human Rights Act prohibits the transmission by telecommunication of repeated messages of any matter that is likely to expose a person to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination. It also prohibits the publication or display of notices or other representations that express or incite discrimination under the Act. According to Section 13: "It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination."

CASE STUDY FEDERAL HUMAN RIGHTS

In 1979, a Canadian Human Rights Tribunal found that John Ross Taylor and the Western Guard Party had contravened Section 13 of the Canadian Human Rights Act by transmitting repeatedly hate messages against Jews. The Tribunal ordered Taylor and the Western Guard to stop, but Taylor ignored the order. He was subsequently found to be in contempt of court and was sentenced to one year in prison and ordered to pay a $5000 fine. In 1983 the Canadian Human Rights Commission filed a new contempt of court order, alleging that Taylor was still communicating hate messages on his telephone. The court found that Taylor was again in contempt. Taylor appealed, arguing that Section 13 of the Canadian Human Rights Act under which he was charged violated his right to freedom of expression as guaranteed by the Charter. The majority of the Supreme Court ruled that while Section 13 violated the guarantee of freedom of expression under Section 2 of the Charter the violation was justified under Section 1.

In British Columbia, Tony McAleer and the Canadian Liberty Net (CLN) was twice found to have communicated messages by telephone that breached the Canadian Human Rights Act. The CLN was established in October 1991 as a computerized telephone message system that offered callers a menu of hate messages, including messages from Wolfgang Droege (The Heritage Front, Toronto Ontario), Ernst Zundel, (Samizdat Publishers, Toronto, Ontario) Janice Long,(wife of Canadian leader of the Aryan Nations Terry Long), Tom Metzger (White Aryan Resistance, Fallbrook, California), National Alliance (Hillsborough, Virginia).

A complaint was filed against CLN and its operator in December of 1991. The original complaint named Derek Peterson as the operator of CLN. Since Derek Peterson was a pseudonym, the complaint filed by one community organization against him as the operator of CLN was dismissed.

On September 9, 1993, the Canadian Human Rights Tribunal found that the CLN violated the Canadian Human Rights Act and ordered McAleer to stop using the telephone to spread hate. However, the Tribunal judgement did not assess damages against McAleer. However, McAleer moved the CLN to Washington state to continue operation. Contempt charges were filed and he was soon before a court again. The court ruled that McAleer had moved the CLN to avoid Canadian law. McAleer appealed the decision, but lost.

A second Human Rights Tribunal convened in 1994 to hear a complaint against McAleer for spreading hate against gays. The CLN was again found to have violated the Act and the operator was ordered to cease and desist. As with the earlier conviction, no damages were assessed.

On March 1, 1995, just a few years after McAleer run in with the law, Aryan Nations leader Charles Scott placed the following message on his telephone line:

We at the Church of Christ in Israel are an organization of men, women and volunteers who are fighting for the rights of white Canadians. We believe that this country was built by white people and that minorities, non-white crime, and racial treason are running this nation. We are witnessing the virtual destruction of our white Aryan culture and heritage in every aspect of daily living. In order to combat this total disregard for white European values, we have dedicated our lives to working for white people everywhere. In our struggle for white victory, we have travelled throughout the country staging demonstrations and rallies, speaking to interested people, and defying the traitorous Jew-controlled federal bureaucracy, constantly spreading our demand for equal rights for whites.

We are laying down the groundwork for a revolution which will return power to the white race. We support the free-enterprise system, but wish to smash Jew capitalism...

We oppose the recognition of the bandit state of Israel by race-traitors within our government. We wish to wipe out Zionism and every kike who supports it throughout the free world... We demand a crime free, white-ruled society without the daily fear of rape, robbery and murder. All immigration from non-white nations must be stopped. Mud people must be repatriated to the land of their ancestry. (Scott; March 1, 1995)

Like McAleer, Scott was also found to have breached the Canadian Human Rights Act and was ordered to stop. Unlike McAleer, Scott turned from using the telephone to using "White People Awake!" flyers to spread the message of white supremacy.

Ernst Zundel has also been charged with transmitting hate by telephone. This case, however, involves the transmission of hate through the Internet. However the Internet site is based in California outside Canadian borders and, defense council argues, outside the jurisdiction of the e Canadian Human Rights Act. Zundel also argues that the Internet site that bears his name is owned and operated by a US citizen and, finally, that telephone communication is private and therefore does not fall under the umbrella of Section 13.

OTHER FEDERAL LEGISLATIONS

The Customs Tariff Act prohibits importing publications that constitute hate propaganda as defined under the Criminal Code. The Code has been used with great success to ban hate propaganda, but there are large gaps in enforcement that have allowed mainstream bookstores to important and sell books like The Turner Diaries, probably the main "bible" for the racist right in North America.

The Canadian Radio, Television and Telecommunications Commission issued radio regulations in 1986, and television broadcasting regulations in 1987. The Broadcasting Act prohibits the electronic broadcast of any abusive comment or representation that exposes persons to hatred or contempt because of, for example, their race or religion. The Commission has been extremely reluctant to enforce the provision of the Act, preferring to try to mediate between radio stations and aggrieved parties.... Dutton v AM 1040

The Canada Post Corporation Act allows the Federal Government to prohibit the delivery of mail to, or from someone, who has used the mail to commit an offence. The Act was used against Don Adrews and Ernst Zundel. But there are a host of groups suing the mail services to distribute hate propaganda without sanction.

PROVINCIAL HUMAN RIGHTS LEGISLATION

Almost every province and territory has a statute to prohibit hate propaganda. The Yukon Territory is one exception. These provincial human rights statues have been successfully used against hate mongers in Canada. The BC Human Rights Act has been amended and renamed the Human Rights Code effective January 1, 1997. The Code prohibits discriminatory practises and Section 2 specifically prohibits the publication of statements, "notices, signs, symbols, emblems or other representations the expression of which indicates discrimination or an intention to discriminate against a person or class of persons, or that is likely to expose them to hatred or contempt because of their race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age."

Collins and the North Shore News were the first charged for breaching the new Code. Collins and the North Shore News (see chapter four above) have long published material attacking Jews, immigrants from non-European countries, feminists, Native Peoples and trade unionists. The case against Collins and the NSN involved a column that insinuated that Jews controlled Hollywood and that the Holocaust was a hoax to make money. The human rights tribunal found that while Collins and the North Shore News had communicated statements that were likely to expose Jews to hatred, the statements were not sufficiently hateful to contravene the Code. A second complaint against Collins and the NSN was heard in the Summer of 1998. Harry Abrams, a business man in Victoria, BC felt that a number of Collin's writings contravened the human rights act and filed a complaint.

CASE STUDY HUMAN RIGHTS IN ALBERTA

Section 2 subsection 1 of the Individual Rights' Protection Act of Alberta states that: "No person shall publish or display before the public or cause to be published or displayed before the public any notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against any person or class of persons for any purpose because of the race, religious beliefs, colour, sex, physical disability, age, ancestry or place of origin of that person or class of persons."

On September 8 and 9, 1990, Terry Long and Ray Bradley held an "Aryan Fest" at a farm near Provost, Alberta at which a cross was burnt, nazi flags and signs that read "KKK White Power" were displayed. There were also repeated calls of "death to Jews". In 1991 a Board of Inquiry found that Long and Bradley had breached the Act and Long fled to British Columbia to avoid Alberta law. However, the Board of Inquiry found that the "KKK White Power" sign was a prohibited sign under the Act and the swastika and burning of the cross were prohibited symbols. The Board found the signs and symbols indicated an intention to discriminate against an identifiable group. The Board awarded costs against the Long and Bradley.

CIVIL RIGHTS PROTECTION ACT

Concern over the growth of the Klan in British Columbia in the early 1980s led to the McAlpine Commission which recommended important new hate crime legislation. Acting on one of the recommendations, the BC Government enacted the Civil Rights Protection Act. However, there has been only one case brought under the Act. The problem with the Act is that, like the Criminal Code of Canada, the consent of the Attorney General is required and it has been thought that the Act would not stand a Charter challenge. In addition, the Crown is required to show, beyond a reasonable doubt, that prohibited statements caused hatred. As a result, the most likely remedy for hatred lies with the new amendments to the BC Human Rights Code.

CASE STUDY POVERTY LAW CENTRE V. WAR

Taking on the White Aryan Resistance

In 1988, Tom and John Metzger sent their best White Aryan Resistance (WAR) recruiter from California to organize a Portland Skinhead gang. After being trained in WAR's methods, the gang killed an Ethiopian student. Tom Metzger praised the Skinheads for doing their "civic duty."

Southern Poverty Law Centre attorneys filed a civil suit claiming that the Metzgers and WAR were as responsible for the killing as the Portland Skinhead gang. In October 1990, a jury agreed and awarded $12.5 million in damages to the family of the victim, Mulegata Seraw.

In 1994, the U.S. Supreme Court refused to review Metzger's appeal, opening the way for Centre attorneys to begin distributing funds collected from the sale of WAR's assets. The principal beneficiary of the verdict is Seraw's teenaged son, Henok. Henok is using a portion of the collected funds to attend school in the United States.

The Michael Donald Lynching Case

Nineteen-year-old Michael Donald was on his way to the store in 1981 when two members of the United Klans of America abducted him, beat him, cut his throat and hung his body from a tree on a residential street in Mobile, Alabama. The two Klansmen who carried out the ritualistic killing were eventually arrested and convicted. There the case would have ended but for Klanwatch.

Sensing a larger conspiracy and convinced that the Klan itself should be held responsible, Southern Poverty Law Centre attorneys filed a civil suit on behalf of Michael Donald's mother. In 1987, the Centre won an historic $7 million verdict against the United Klans and all the Klansmen who had played a part in the lynching.

The verdict marked the end of the United Klans, the Klan group that had beaten the Freedom Riders, murdered civil rights worker Viola Liuzzo during the Selma-to-Montgomery march, and blown up Birmingham's 16th Street Baptist Church, killing four young black girls. As a result of the case, the group was forced to turn over its headquarters to Beulah Mae Donald, and two additional Klansmen were convicted on criminal charges stemming from the lynching.

CONCLUSION

Fascism, hate and intolerance are not new to Canada. But there is much that we can all do to limit its growth and prevent its spread. Many Canadian feel that hate can be stopped through better education and law enforcement. To some extent this is true. But the problem is that education works only when people are willing to learn. When groups are allowed to profit from hate and the recruitment of youth the task of education is all the more difficult. Law enforcement is also important, but it takes political will to make and use legal remedies. We have had far too few politicians who have been willing and ready to actively oppose organized hate groups and that has given racists tacit approval for their activities. In addition, the problem of hate and racism is not so much a legal issue as a moral problem that must involve all Canadians in its resolution.

In fact, the key to stopping racism and preventing the return of fascism in Canada is effective community organizing. But community action has been opposed from a variety of quarters because it supposedly gives publicity to fascists and racists. It must be recognized that without strong, consistent and informed community organizing, fascist groups will continue to expand and their will be many more victims of hate than we have already witnessed. Community based opposition to hate in all its many forms must be encouraged and supported. There are too few Canadians actively engaged in fighting racism from a community based perspective. If Canada is to live up to its promise, community based opposition to hatred must be promoted and a culture of anti-racism must be developed. This is, of course, is easy to say. But the time had passed for lip service. Before fascism really takes hold as it has throughout the world, Canadians must seize the initiative and build grass roots networks to actively expose and oppose hatred in all its various forms and manifestations.

Canadians have a proud history of actively exposing and opposing fascist groups both in the streets and in government. Now, rather than later, is the time for community action. The history of anti-fascism in Canada can serve as a model but we must not stop with temporary measures that allow fascism to re-surface at will. There must be a coordinated anti-fascist and anti-racist culture created that will stand the test of time.