When it comes to curbing hate crimes, there’s good news and bad news. That’s bad news, says B’nai Brith’s MARVIN KURZ
– by Marvin Kurz
Sometimes an old joke has a timely moral.
Before sending her somewhat sheltered son off for his first day at school, Goldie hugged him and said: “Good luck, sweetie. Be good, my darling, and work hard. At lunch, honey pie, eat all your food and play nicely with the other children. Oh, my little man, I’m so proud of you!” That afternoon, when the boy returned home, Goldie greeted him with open arms and cried: “Oh, my honey, give me a hug, and tell me what you learned at school today.” “Well,” said the boy, “to start with, I learned that my name is Sam.”
The joke proves that labels count. We ignore that lesson at our peril. The most dangerous of all labels, those which defame entire vulnerable groups, are hate propaganda. Two recent developments in the law offer good news, but also new concerns for those dedicated to the elimination of this scourge. Six decades after the Holocaust, hate propaganda remains a deep concern for Canadians.
Just a few days ago, Parliament passed a private member’s bill adding sexual orientation to the list of groups protected under our existing hate-propaganda laws. Despite some concerns with the bill, the change was overdue. Our hate-propaganda laws emerged from the 1965 recommendations of a blue-ribbon committee of legal scholars, led by former McGill law school dean Maxwell Cohen. The Cohen Commission’s words ring as true today in regard to protecting the rights of gay Canadians as they did four decades ago on the protection of Jewish and African Canadians: “Canadians who are members of any identifiable group . . . are entitled to carry on their lives as Canadians without being victimized by the deliberate, vicious promotion of hatred against them. In a democratic society, freedom of speech does not mean the right to vilify . . .” Still, the new bill raised strong concerns on two counts: that it would breach freedoms of speech and religion. The freedom-of-speech arguments were convincingly answered by our highest court in a 1990 tril-
ogy of cases that included that of Alberta schoolteacher James Keegstra, when former chief justice Brian Dickson pithily stated: “In my view . . . the willful promotion of hatred . . . is entirely antithetical to our very system of freedom.”
The freedom-of-religion arguments have been more troubling. How to balance the rights of Canadians whose religious views oppose homosexuality with the rights of gays to be free from hate? We don’t want to jail people for reading from the Bible. That concern was largely resolved regarding the charge of willful promotion of hatred: A friendly amendment to the bill allows a defence if the expression of opinion was “based on a belief in a religious text.”
However, that amendment does not go far enough. As B’nai Brith argued in a submission to Parliament, the defence should also apply to the related charge of public incitement of hatred. To protect against frivolous prosecutions, the charge should require the consent of the attorney-general. Those simple but important changes should have been made to the bill before it passed. They should be made now, before it is proclaimed into law.
A problematic development comes in the Federal Court of Appeal decision dismissing Immigration Act proceedings against Leon Mugesera. The Canadian government wants to deport the Rwandan former politician and civil servant because of a speech he made 11 years ago that our government said was hate propaganda, advocating genocide against Tutsis. The court carefully reviewed the evidence and tried to offer a nuanced view.Speaking at a rally just over a year before the murders began, Mr. Mugesera referred to Tutsis as “cockroaches” and rhetorically asked why they were not exterminated. He warned, “. . . anyone whose neck you do not cut is the one who will cut your neck.” The court’s exoneration of Mr. Mugesera is troubling; even more so is its view that his speech is legal under Canadian criminal law.
If so, four decades of Canadian efforts to outlaw hate speech may have been in vain. The court has raised the bar so high, even Mr. Keegstra might not have been convicted under this interpretation of the criminal law. Let’s hope that this decision will be referred to the Supreme Court of Canada for review and clarification. As young Sam learned on his first day of school, words count. For those looking to eradicate hate propaganda, the struggle is far from over. However, like Sam, I take good news wherever I find it.
Marvin Kurz is national legal counsel of the League for Human Rights of B’nai Brith Canada.