- Reaction score
- 25
- Points
- 430
This may explain the problems we are facing:
Reproduced under the Fair Dealings provisions of the Copyright Act.
The threshold of hate
(Link in Title)
Joseph Brean, National Post
The decision not to prosecute Salman Hossain for the wilful promotion of hatred against an identifiable group illustrates some of the pitfalls of a controversial anti-hate law that has often put legal opinion in conflict with political judgment, and has become doubly awkward in the age of the Internet.
Section 319(2) of the Criminal Code is one of the few ways a Canadian can be sentenced to jail, up to two years, directly over the spoken or written word.
It is among the few criminal laws that require direct ministerial approval for prosecutions, along with others such as abuse of public office, assisting a military deserter and any alleged crime on the Space Station.
To date, Ontario has not yet pursued an Internetbased case. Convictions have been won against website operators in other provinces, though, despite unique problems that arise on the Internet, where anonymity is the norm, audiences are unclear, websites can be hacked, passwords can be shared and many messages appear for only a moment before vanishing forever down a rabbit hole.
"It's normally discussed in legal circles as an enforcement challenge," said Bruce Ryder, Assistant Dean First Year at Osgoode Hall law school.
Drafted in the 1960s at the height of the post-war human rights movement, Prof. Ryder said Section 319(2) has generally fared well since hate propaganda moved from printed flyers and telephone hotlines to Internet chat rooms.
The main current problem is not the law's constitutionality, he said, nor a shortage of cases that deserve it, but whether it can actually be effective against the proliferation of online hate propaganda, much of it anonymous or international.
The 319(2) conviction rate remains low, at 11 convictions out of 44 prosecutions since 1994, despite a reluctance by attorneys-general to approve anything but the most extreme cases.
The recent failed retrial of native leader David Ahenakew, for example, was an acute embarrassment for the Saskatchewan Crown, but like past failures, it helped clarify the law's boundaries.
Mr. Ahenakew's first trial turned on the "private conversation" exemption, which was judged not to apply to the statements he made to a reporter.
The retrial turned on the concept of "wilful," which has always been an unusual requirement, given that all crimes must involve some kind of "guilty mind."
This notion was first wrangled over in the first 319(2) case in 1979, the failed prosecution of Robert Buzzanga and Jean Wilfred Durocher, two French Canadians who distributed anti-French flyers in an effort to rouse anti-English sentiment in Ontario. They were acquitted on appeal in a ruling that held "wilful" to mean something close to "intentional," in contrast to other forms of guilty knowledge such as negligence or recklessness.
Mr. Ahenakew was ultimately judged to have fallen below this high standard.
"There's no doubt that mistakes have been made [in 319(2) cases]," Prof. Ryder said.
The result is a law that is used sparingly and cautiously, and generally against only determined purveyors of the most extreme forms of hatred.
"The Criminal Code isn't supposed to prohibit racism. It's supposed to prohibit extreme forms of hate propaganda that raise a serious threat of harm," Prof. Ryder said.
Along with "private conversation," the law also provides defenses of truth, public interest, identifying hatred for the purpose of eradication and religious arguments made in good faith.
Trying to identify worthy cases amid the unedited global chatter of the Internet, while respecting private communications and free expression, has become a central conundrum of 319(2).
And it is often easier for a police officer or Crown prosecutor than for an attorney-general, who must put his or her elected neck on the line.
Set the bar too high, and the law is toothless against the very people it was written to target.
Set it too low, and you catch a thousand loudmouths who may be racists, but are not criminals.
A source with first-hand knowledge of how provincial attorneys-general make this decision said the threshold changes with the political climate, and that there are "many more questions put to the AG than there are positive answers."
It is not a scientific process, he said, but rather a subjective decision about whether each individual case is worth pursuing.
While a prosecutor will simply look for a reasonable prospect of conviction based on available evidence (they also seem to be reluctant; one police hate crime specialist reports forwarding six potential cases to the Crown over two years, and having all rejected), an elected attorney-general must take a wider view.
Approved cases must "go beyond simply some foolish hothead spouting off," the source said, or else the law can be overused and cheapened. A good indicator of a solid case, for example, would be an imbalance of power between speaker and audience, or a context in which people were likely to be strongly influenced, which is why the successful prosecution of the anti-Semitic Alberta teacher James Keegstra is such an iconic precedent.
"The full answer is not in the words of the statute," the source said, and "everything becomes a little harder" on the Internet.
An added complication is that the Youth Criminal Justice Act has no hate speech provision, so it is unclear how an accused youth would be
The Criminal Code isn't supposed to prohibit racism treated under this law.
At the moment, the political climate is awkward for hate speech prosecutions.
A prolonged and acrimonious debate over the role of human rights commissions in these matters has led to high-profile demands for legislative change, and hate speech reviews at various agencies, including the Canadian Human Rights Commission, the Justice Department and parliamentary committees.
The Justice Department is also evaluating a controversial proposal to explicitly write hate motivation into the Criminal Code as an aggravating factor in any crime, from common mischief to murder.
In such a divisive climate, the criminal prosecution of a young blogger would have drawn awkward attention, and as much criticism as praise.
In the past, this has often worked to the advantage of the accused, notably the Holocaust denier Ernst Zundel, who was investigated under 319(2), but prosecuted under the law against reporting "false news," which was ruled unconstitutional.
"There's no doubt that a downside of criminal prosecution is it gives all kinds of free publicity to the views of the person accused of hatemongering," Prof. Ryder said.
"Perhaps its most important roles are symbolic and preventative, to express our condemnation of hate propaganda against the groups that have most frequently been the targets of hateful speech," he said.
jbrean@nationalpost.com---------
HIGH-PROFILE CASES
Cases alleging hate promotion in Canada have taken a sharp turn away from racist hotlines and photocopied flyers toward the unbounded reach of the Internet. The following are some of the most prominent cases involving the anti-hate law since the Supreme Court of Canada upheld its constitutionality in 1990.
JAMES KEEGSTRA
A high school teacher and mayor from Eckville, Alta., he was driven from office before his conviction for promoting Holocaust denial and Jewish conspiracy theories to his students. The Alberta Court of Appeal overturned his conviction because the defence of truth placed too high a burden on the accused, but it was upheld by the Supreme Court, in a 1990 analysis that remains the legal benchmark.
GLENN BAHR
A founder of the Western Canada For Us website, he was committed for trial in 2006 over alleged white supremacist material. He has pleaded not guilty.
DON ANDREWS
The leader of the defunct Nationalist Party of Canada and a long-time racist rabble rouser in Toronto, he was found guilty of hate promotion and sentenced to one year in jail, a sentence that the Supreme Court of Canada upheld in 1990, in a companion appeal with Keegstra.
TERRY TREMAINE
A former University of Saskatchewan lecturer who went by the online nickname mathdoktor99, he once claimed his alleged hate promotion was due to mental illness, but instead briefly tried to defend himself. He has pleaded not guilty and is now represented by Doug Christie, a lawyer who has argued for many 319(2) accused, including Keegstra.
REINHARD GUSTAV MUELLER
Also known as Reni Sentana-Ries, he was sentenced in 2006 in Alberta to 16 months in jail for his anti-Semitic website Federation of Free Planets. At sentencing he made what a reporter described as "a long statement detailing the radio messages his wife receives from extraterrestrials and the government conspiracies to silence him and his wife that even reached the Crown's office."
KEITH FRANCIS WILLIAM NOBLE
A prominent neo-Nazi agitator, he was sentenced in February 2008 in Prince George, B. C., to four months in jail and three years' probation, and had all his computer equipment forfeited to the Crown for destruction.
Reproduced under the Fair Dealings provisions of the Copyright Act.
The threshold of hate
(Link in Title)
Joseph Brean, National Post
The decision not to prosecute Salman Hossain for the wilful promotion of hatred against an identifiable group illustrates some of the pitfalls of a controversial anti-hate law that has often put legal opinion in conflict with political judgment, and has become doubly awkward in the age of the Internet.
Section 319(2) of the Criminal Code is one of the few ways a Canadian can be sentenced to jail, up to two years, directly over the spoken or written word.
It is among the few criminal laws that require direct ministerial approval for prosecutions, along with others such as abuse of public office, assisting a military deserter and any alleged crime on the Space Station.
To date, Ontario has not yet pursued an Internetbased case. Convictions have been won against website operators in other provinces, though, despite unique problems that arise on the Internet, where anonymity is the norm, audiences are unclear, websites can be hacked, passwords can be shared and many messages appear for only a moment before vanishing forever down a rabbit hole.
"It's normally discussed in legal circles as an enforcement challenge," said Bruce Ryder, Assistant Dean First Year at Osgoode Hall law school.
Drafted in the 1960s at the height of the post-war human rights movement, Prof. Ryder said Section 319(2) has generally fared well since hate propaganda moved from printed flyers and telephone hotlines to Internet chat rooms.
The main current problem is not the law's constitutionality, he said, nor a shortage of cases that deserve it, but whether it can actually be effective against the proliferation of online hate propaganda, much of it anonymous or international.
The 319(2) conviction rate remains low, at 11 convictions out of 44 prosecutions since 1994, despite a reluctance by attorneys-general to approve anything but the most extreme cases.
The recent failed retrial of native leader David Ahenakew, for example, was an acute embarrassment for the Saskatchewan Crown, but like past failures, it helped clarify the law's boundaries.
Mr. Ahenakew's first trial turned on the "private conversation" exemption, which was judged not to apply to the statements he made to a reporter.
The retrial turned on the concept of "wilful," which has always been an unusual requirement, given that all crimes must involve some kind of "guilty mind."
This notion was first wrangled over in the first 319(2) case in 1979, the failed prosecution of Robert Buzzanga and Jean Wilfred Durocher, two French Canadians who distributed anti-French flyers in an effort to rouse anti-English sentiment in Ontario. They were acquitted on appeal in a ruling that held "wilful" to mean something close to "intentional," in contrast to other forms of guilty knowledge such as negligence or recklessness.
Mr. Ahenakew was ultimately judged to have fallen below this high standard.
"There's no doubt that mistakes have been made [in 319(2) cases]," Prof. Ryder said.
The result is a law that is used sparingly and cautiously, and generally against only determined purveyors of the most extreme forms of hatred.
"The Criminal Code isn't supposed to prohibit racism. It's supposed to prohibit extreme forms of hate propaganda that raise a serious threat of harm," Prof. Ryder said.
Along with "private conversation," the law also provides defenses of truth, public interest, identifying hatred for the purpose of eradication and religious arguments made in good faith.
Trying to identify worthy cases amid the unedited global chatter of the Internet, while respecting private communications and free expression, has become a central conundrum of 319(2).
And it is often easier for a police officer or Crown prosecutor than for an attorney-general, who must put his or her elected neck on the line.
Set the bar too high, and the law is toothless against the very people it was written to target.
Set it too low, and you catch a thousand loudmouths who may be racists, but are not criminals.
A source with first-hand knowledge of how provincial attorneys-general make this decision said the threshold changes with the political climate, and that there are "many more questions put to the AG than there are positive answers."
It is not a scientific process, he said, but rather a subjective decision about whether each individual case is worth pursuing.
While a prosecutor will simply look for a reasonable prospect of conviction based on available evidence (they also seem to be reluctant; one police hate crime specialist reports forwarding six potential cases to the Crown over two years, and having all rejected), an elected attorney-general must take a wider view.
Approved cases must "go beyond simply some foolish hothead spouting off," the source said, or else the law can be overused and cheapened. A good indicator of a solid case, for example, would be an imbalance of power between speaker and audience, or a context in which people were likely to be strongly influenced, which is why the successful prosecution of the anti-Semitic Alberta teacher James Keegstra is such an iconic precedent.
"The full answer is not in the words of the statute," the source said, and "everything becomes a little harder" on the Internet.
An added complication is that the Youth Criminal Justice Act has no hate speech provision, so it is unclear how an accused youth would be
The Criminal Code isn't supposed to prohibit racism treated under this law.
At the moment, the political climate is awkward for hate speech prosecutions.
A prolonged and acrimonious debate over the role of human rights commissions in these matters has led to high-profile demands for legislative change, and hate speech reviews at various agencies, including the Canadian Human Rights Commission, the Justice Department and parliamentary committees.
The Justice Department is also evaluating a controversial proposal to explicitly write hate motivation into the Criminal Code as an aggravating factor in any crime, from common mischief to murder.
In such a divisive climate, the criminal prosecution of a young blogger would have drawn awkward attention, and as much criticism as praise.
In the past, this has often worked to the advantage of the accused, notably the Holocaust denier Ernst Zundel, who was investigated under 319(2), but prosecuted under the law against reporting "false news," which was ruled unconstitutional.
"There's no doubt that a downside of criminal prosecution is it gives all kinds of free publicity to the views of the person accused of hatemongering," Prof. Ryder said.
"Perhaps its most important roles are symbolic and preventative, to express our condemnation of hate propaganda against the groups that have most frequently been the targets of hateful speech," he said.
jbrean@nationalpost.com---------
HIGH-PROFILE CASES
Cases alleging hate promotion in Canada have taken a sharp turn away from racist hotlines and photocopied flyers toward the unbounded reach of the Internet. The following are some of the most prominent cases involving the anti-hate law since the Supreme Court of Canada upheld its constitutionality in 1990.
JAMES KEEGSTRA
A high school teacher and mayor from Eckville, Alta., he was driven from office before his conviction for promoting Holocaust denial and Jewish conspiracy theories to his students. The Alberta Court of Appeal overturned his conviction because the defence of truth placed too high a burden on the accused, but it was upheld by the Supreme Court, in a 1990 analysis that remains the legal benchmark.
GLENN BAHR
A founder of the Western Canada For Us website, he was committed for trial in 2006 over alleged white supremacist material. He has pleaded not guilty.
DON ANDREWS
The leader of the defunct Nationalist Party of Canada and a long-time racist rabble rouser in Toronto, he was found guilty of hate promotion and sentenced to one year in jail, a sentence that the Supreme Court of Canada upheld in 1990, in a companion appeal with Keegstra.
TERRY TREMAINE
A former University of Saskatchewan lecturer who went by the online nickname mathdoktor99, he once claimed his alleged hate promotion was due to mental illness, but instead briefly tried to defend himself. He has pleaded not guilty and is now represented by Doug Christie, a lawyer who has argued for many 319(2) accused, including Keegstra.
REINHARD GUSTAV MUELLER
Also known as Reni Sentana-Ries, he was sentenced in 2006 in Alberta to 16 months in jail for his anti-Semitic website Federation of Free Planets. At sentencing he made what a reporter described as "a long statement detailing the radio messages his wife receives from extraterrestrials and the government conspiracies to silence him and his wife that even reached the Crown's office."
KEITH FRANCIS WILLIAM NOBLE
A prominent neo-Nazi agitator, he was sentenced in February 2008 in Prince George, B. C., to four months in jail and three years' probation, and had all his computer equipment forfeited to the Crown for destruction.
