Hatemongers Don't Face Serious Enough Consequences in Canadian Courts

While Canada has clear legal definitions of what does and does not constitute hate speech, enforcement is lacking. In the cases when known peddlers are actually brought before a judge, the trials are delayed, extended, and lack consequences. It’s time to bring back section 13.

Canadian Anti-Hate Network



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We need to do away with the myth that hate and racism aren’t issues in Canada, especially online. We produce hate speech and internationally recognized hate figures at a disproportionately high rate -- in many measures we’re worse than the United States on a per capita basis. 

As it stands now, we do not have the legal tools needed to reverse this trend.

On 4Chan, we represent almost 6% of posts made to the worst message board on the site, and earlier this year UK based think tank Institute for Strategic Dialogue identified 6,600 online channels where Canadians posted hateful content.

Before we begin, let’s quickly debunk the central bad faith argument against our hate speech laws. “Hate” is not impossible to define or undefined -- the Supreme Court has clearly defined it and endorsed a guide to determining what is and isn’t criminal hate speech. Our laws have been challenged and upheld by the Supreme Court as Charter consistent.

The laws strike a good balance between freedom of expression and criminalizing what is dangerous hate speech. Unfortunately, they aren’t enforced and they don’t have sharp enough teeth to be a deterrent. The very worst actors continue spreading hate largely with impunity.

Police services across Canada are the main roadblock. A few do take it seriously and act, but most are reluctant in the extreme to investigate hate-related charges against individuals -- whether that’s hate speech, continuous harassment, and even death threats. Sometimes, overwhelming community pressure on the police works -- but shouldn’t be necessary.

Even if the law is applied correctly, it’s not strong enough to be a deterrent. Some hatemongers make a mockery of it and use the opportunity to grandstand. 

James Sears, the discredited former medical doctor who served as editor for Toronto-based Your Ward News, was sentenced to the maximum one year in prison in 2019 for promoting hatred against women and Jews. The crown proceeded with the charge as a summary offence.

Ontario Justice Richard Blouin wished he could hand down more, saying at the time “It is impossible, in my view, to conclude that Mr. Sears ... should receive a sentence of any less than 18 months in jail.” 

Sears hasn’t seen a day in jail yet. He was allowed to stay out, pending his argument that his lawyer misrepresented him by not giving him an opportunity to deny the holocaust and call notorious antisemites as “expert witnesses.” He regrets nothing.

Hate vlogger Kevin Johnston was initially charged with a single count of wilful promotion of hatred in 2017. Johnston has still not been tried. In 2019 he lost a $2.5 million judgment to Toronto philanthropist Mohamad Fakih for his role in racially motivated defamation against Fakih in which he repeatedly accused him of being a terrorist. 

Ontario Superior Court Justice Jane Ferguson called Johnston’s attacks on Fakih “hate speech at its worst.” 

Travis Patron, leader of the overtly neo-Nazi federal Canadian Nationalist Party, has been “under investigation” by the RCMP for over a year for a video in which he claimed Jews are a “parasitic tribe” and called for their expulsion from Canada. Patron continues to make antisemitic posts and flyers and do photo ops giving the Nazi salute.

It’s an open and shut case. What could possibly make it take this long to lay charges? 

In 2018, a warrant was issued for Gabriel Sohier Chaput, aka Zeiger -- called one of the most prominent neo-Nazis in North America, and writer with The Daily Stormer, a white supremacist website -- for spreading hatred. Having been on the run for two years, in August 2020 Chaput reappeared and is awaiting trial in Montreal. 

Chaput is one of the ideological leaders of the newest generation of neo-Nazi terrorists -- his hands are soaked in blood. It’s a travesty that the most he’s likely to get is a year. It’s uncertain whether he will even spend it in prison, given the pandemic. 

Neo-Nazi Paul Fromm was under investigation by the Hamilton Police Service for posting the manifesto of the Christchurch killer, titled “The Great Replacement” -- a nod to the white supremacist conspiracy theory that white people are being replaced --  in full on his website in 2019. Fromm had stated, “[The shooter’s] analysis of the crisis we face is cogent.” 

They decided not to charge him.

British Columbia’s Arthur Topham, convicted in 2015 of one count of communicating online statements that wilfully promoted hatred against Jews, and again in 2017, had been sentenced to a six month conditional sentence, two years probation, a curfew, and was banned from posting online. 

In early 2020, Topham was again before the courts for breaching his probation order and spreading online hate. 

Some of these people just won’t stop -- not as things are.

Our hate speech law,  s. 319 (2), is crafted to balance freedom of expression while criminalizing the worst hate speech. Unfortunately, it’s not a deterrent for the most vitriolic offenders because the police won’t enforce it, and some hate mongers laugh off the consequences. 

It feels like we’re banging our heads against the wall filing criminal complaints.

Before 2014, members of the public could file a hate speech complaint under s.13. Credible complaints went to the Human Rights Tribunal, and a panel of judges could order hatemongers to stop. It was relatively fast, gave communities the power to defend themselves legally, and it worked. It gave us direct access to justice

If they refused to stop, they were in violation of a standing court order and were relatively quickly thrown in jail. Eventually, most of them learned their lesson.

Earlier this month we met with Heritage minister Steven Guilbeault and a number of social justice organizations to discuss legislation surrounding online hate. We argued that reinstating s. 13 is fundamental to successfully dealing with the problem. We were joined by numerous voices in support of these measures -- the Mosaic Institute, the National Association of Friendship Centres, the Chinese Canadian National Council for Social Justice, and others -- and we are committed to a coalition to realize a better solution for today.

Every single anti-racist and human rights group we know of wants it back.

Bring it back.

 

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