Download Wilful Promotion of Hatred 319(2)

Criminal Law Remedies to
Combat Hate
Mark Sandler
Hate Propaganda
Under the Criminal Code
• Advocating Genocide: s. 318(1)
• Public Incitement of Hatred: s. 319(1)
• Wilful Promotion of Hatred: s. 319(2)
• Forfeiture and Seizure of Hate Propaganda: ss.
319(4), 320, & 320.1
Advocating Genocide
318(1) Every one who advocates or promotes
genocide is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years.
Advocating Genocide
“Genocide” means any of the following acts
committed with intent to destroy in whole or in
part any identifiable group, namely,
(a) killing members of the group; or
(b) deliberately inflicting on the group conditions
of life calculated to bring about its physical
destruction: s. 318(2).
Advocating Genocide
“Identifiable group” means any section of the
public distinguished by colour, race, religion,
ethnic origin or sexual orientation: s. 318(4).
Advocating Genocide
• The incitement to commit genocide must be both
“direct” and “public”.
• The specific intent required for this offence is
discussed in Mugesera v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R.
91.
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.
Public Incitement of Hatred
To contravene s. 319(1), a person must:
• communicate statements,
• in a public place,
• which incite hatred against an identifiable group,
• in such a way that there will likely be a breach of
the peace.
Public Incitement of Hatred
• “Communicating" includes communicating by
telephone, broadcasting or other audible or
visible means.
• A "public place" is one to which the public has
access by right or invitation, express or implied.
• “Statements" means words (spoken, written or
recorded), gestures, and signs or other visible
representations: s. 319(7).
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.
Wilful Promotion of Hatred
To contravene s. 319(2), a person must:
• wilfully
• promote hatred against an identifiable group
• by communicating statements
• other than in a private place.
Wilful Promotion of Hatred
319(3) No person shall be convicted of an offence
under s. 319(2)
(a) if he establishes that the statements
communicated were true;
(b) if, in good faith, the person expressed or
attempted to establish by an argument an opinion
on a religious subject or an opinion based on a
belief in a religious text;
Wilful Promotion of Hatred
319(3) No person shall be convicted of an offence under
s. 319(2)
(c) if the statements were relevant to any subject of
public interest, the discussion of which was for the
public benefit, and if on reasonable grounds he
believed them to be true; or
(d) if, in good faith, he intended to point out, for the
purpose of removal, matters producing or tending to
produce feelings of hatred toward an identifiable group
in Canada.
Defining “Wilfully”
• The accused only wilfully promotes hatred if
he/her conscious purpose is to promote hatred
or if he/she foresaw that the promotion of hatred
was certain or almost certain to result.
• The mental element includes wilful blindness.
Defining “Hatred”
“Hatred is not a word of casual connotation. To
promote hatred is to instil detestation, enmity, illwill and malevolence in another. Clearly an
expression must go a long way before it qualifies
within the definition in [s. 319(2)].”
Defining “Hatred”
“Hatred is …a most extreme emotion that belies
reason; an emotion that, if exercised against
members of an identifiable group, implies that
those individuals are to be despised, scorned,
denied respect and made subject to ill-treatment
on the basis of group affiliation. In my opinion
the term ‘hatred’ connotes emotion of an intense
and extreme nature that is clearly associated
with vilification and detestation.” (R. v. Keegstra,
[1990] 3 S.C.R. 697)
Forfeiture Orders
319(4) Where a person is convicted of an offence
under section 318 or subsection (1) or (2) of this
section, anything by means of or in relation to which
the offence was committed, on such conviction,
may, in addition to any other punishment imposed,
be ordered by the presiding provincial court judge or
judge to be forfeited to Her Majesty in right of the
province in which that person is convicted, for
disposal as the Attorney General may direct.
Seizure Warrants and Forfeiture
320(1) A judge who is satisfied by information on
oath that there are reasonable grounds for
believing that any publication, copies of which
are kept for sale or distribution in premises
within the jurisdiction of the court, is hate
propaganda, shall issue a warrant … authorizing
seizure of the copies.
Seizure Warrants and Forfeiture
• ss. 320(2) and (3) mandate that a summons be
issued to the occupier to show cause why the
seized matter should not be forfeited. The owner
and author of the matter may also appear to
oppose a forfeiture order.
• s. 320(4) provides that the matter shall be
forfeited if the court is satisfied that it is hate
propaganda.
Seizure Warrants and Forfeiture
320.1 (1) If a judge is satisfied by information on
oath that there are reasonable grounds for
believing that there is material that is hate
propaganda or data that makes hate
propaganda available, that is stored on and
made available to the public through a computer
system …that is within the jurisdiction of the
court, the judge may order the custodian of the
computer system to …
Seizure Warrants and Forfeiture
…
(a) give an electronic copy of the material to the
court;
(b) ensure that the material is no longer stored on
and made available through the computer system;
and
(c) provide the information necessary to identify and
locate the person who posted the material.
Seizure Warrants and Forfeiture
320.1(2) provides for notice to the person who
posted the material to show cause why the
material should not be deleted.
If the person cannot be identified or located or
does not reside in Canada, the judge may order
the computer system’s custodian to post the
notice.
Seizure Warrants and Forfeiture
320.1(4) provides that if the person who posted the
material does not appear, the court may proceed ex
parte.
320.1(5) provides that if the court is satisfied, on a
balance of probabilities, that the material is available
to the public and is hate propaganda or data that
makes hate propaganda available, it may order the
custodian to delete it.
Hate Propaganda Generally
• Proceedings may not be instituted without the
Attorney General’s consent for an offence under
s. 318(1) or 319(2), or for warrants of seizure
and related orders under s. 320(1) or s. 320.1.
• Consent is not required to institute proceedings
for an offence under s. 319(1).
Non-specific Offences
Virtually any offence can be a hate motivated crime:
For example:
• Mischief: ss.430(1) to (4); (5) to (5.1)
• Assaultive offences and homicides
• Offering an Indignity to Human Remains: s. 182
Mischief to Religious Institutions
Simple mischief to private property often fails to recognize
the seriousness of a hate crime; hence the introduction of
s.430(4.1)
430(4.1) criminalizes mischief in relation to property that is
a building, structure, or part thereof that is primarily used
for religious worship, including a church, mosque,
synagogue or temple, or an object associated with religious
worship located in or on the grounds of such a building or
structure, or a cemetery, if the commission of the mischief
is motivated by bias, prejudice or hate based on religious,
race, colour or national or ethnic origin.
Mischief to Religious Institutions
These offences may be prosecuted by indictment or
summarily.
• For indictable offences, liable to imprisonment for up
to 10 years.
• For summary offences, liable to imprisonment for up
to 18 months.
• No differentiation based on value of affected property.
• Significant enhancement to penalties available for
conventional mischief to property.
Criminal Organization Offences
• Participation in Activities of a Criminal Organization: s.
467.11
• Committing or Instructing the Commission of an Offence for
a Criminal Organization: ss. 467.12, 467.13
467.1(1): A criminal organization is a group composed of
three or more persons in or outside Canada that has as
one of its main purposes or main activities the facilitation or
commission of one or more serious offences that, if
committed, would likely result in the direct or indirect receipt
of a material benefit, including a financial benefit, by the
group or by any of the persons who constitute the group.
Hate Motivation as an
Aggravating Factor
718.2 A court that imposes a sentence shall take into
consideration the following principles:
(a) (i) evidence that the 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, or any other similar factor
... shall be deemed to be aggravating circumstances.
Indicia of Hate Motivation
Hate motivation can be proven circumstantially through, for
example:
• Membership in Hate Groups
• Nature of property victimized
• Statements or gestures accompanying the actus reus
• Content of graffiti left behind
• The accused’s clothing, tattoos
• The significance of the date of the offence in hate ideology
• Motive by exclusion