By Les Scheininger, President of the CJCF
A friend recently remarked to me that we were both fortunate to have grown up in the ‘50s and early 60’s and didn’t suffer from antisemitism and racism in those days as we do today. I admit that I was somewhat surprised and taken aback by this thought, but it did cause me to pause and think. I noted the recent recounting by many that they personally encountered overt racism, antisemitism and bigotry during their lives. Certainly, those observations must be taken seriously. However, that was not my experience, nor it would seem that of my friend. In truth, I have never been the victim of one antisemitic or racist incident nor comment directed towards me personally. Even though some of us may have been fortunate not to have experienced direct incidents of racism, antisemitism, prejudice and hatred, clearly such anti-social criminal behaviour does exist and is a present danger which must be fought
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| Les Scheininger |
I came to Canada with my family as a one year old refugee after the Second World War. We first settled in Kensington Market and I then grew up in the Christie Pits neighbourhood of downtown Toronto. Our Polish landlady would play and spend time with me as did the many multi-ethnic boarders in the the house on Kensington Avenue. Afterwards my mother would share hours talking to our Ukrainian neighbour on Essex Street. I felt welcome in the homes of my schoolmates whether they were third generation Canadians or Italian, Japanese and Chinese immigrants. My teachers in Elementary school and High School, with maybe one or two exceptions, were all Canadian born and yet had a sensitivity and understanding of the differences in the cultures, religions and ethnicities of their students. They taught us to treat each other equally with respect and dignity. Our parents, teachers, community leaders and political representatives of all stripes would not tolerate intemperate language, mocking others, expressions of hatred, racial slurs and racist name calling. They were “politically correct” because it was correct and they provided leadership by example with our respect. We lived hardscrabble lives as next door neighbours and even in the same houses irrespective of religion, race, ethnicity and political differences. Yes, it was post Second World War and the traumatic experiences of living through the war years and hearing of the horrors and murders that befell millions of innocent people were fresh in the minds of people. They learnt the lessons of history and knew that change was required. There was hope for a peaceful, harmonious and non-violent world and, very importantly, we were in Canada, a land which was evolving as a world leading country of tolerance, compassion and equality guided by experienced, knowledgeable and valued political, business and communal leaders.
Yet we have to also recognize that this was not always the reality and remember the racist history of Canada and its record of atrocities in the treatment of its indigenous people including the separation of children from their families and deaths while in residential schools; government policies and actions in preventing the immigration of desperate and endangered Jews, Italians, Japanese, South Asians and Orientals and others; the practices of slavery, segregation and discrimination of Black people and the indiscriminate wartime internment and seizure of property of Japanese and Italian residents. There was a history not that long ago of Jews not being able to practice medicine and law in hospitals and firms side by side with “old stock Canadians” and not allowed to join certain social, business and golf course clubs nor to own property in some areas. Canada did not allow Caucasian women to vote in Federal elections until 1918 and it wasn’t until 1951 that they were allowed to vote in all the provinces. Indigenous women did not have the right to vote until 1960. It took until 1967 for then Justice Minister Pierre Trudeau to introduce an omnibus bill amending the Criminal Code and citing the words “ The state has no business in the bedrooms of the nation”.
Hate Today, The Warnings and Tools To Deal With It
Discrimination, prejudice, inequality and stigmatization continue today. Law enforcement agencies continue to practice racial profiling, which often results in violent assaults and death. There is racial, ethnic, religious and misogynous harassment within our agencies and institutions. Presently, it would appear that things are getting worse and not better. The lessons of the history of the ‘30s and ‘40s which influenced human behaviour and practices in the ‘50s and early ‘60s are being ignored by some to the point of too many people making light of the serious hurt felt by many by mocking the victims of hatred and trivializing the danger of hateful words. Virulent racists reject and deny history as a tool in order to spread hatred. As one who has been involved in community matters and an observer of the news, I am deeply concerned as is, I believe, the majority of people by the proliferation of hate propaganda in public statements, the written word and on the internet which manifest into serious incidents of hate motivated crimes, racist and homophobic verbal and physical assaults and mass murders. No doubt, racism and hatred is a fact of life, has been with us from time immemorial and will continue in the future. Sadly, in our modern world of high tech, greater access to higher education and readily available information, the proliferation of racism and hatred is getting worse and abhorrent. This is clearly unacceptable and, hence society, as evidenced through sanctions and laws that have been passed, has declared that such behaviour to be dangerous, criminal and subject to punishment. What is missing in addition to the words and announcements of the best of intentions is the strong and effective enforcement of the already existing and constitutionally valid laws to prosecute and punish the violators which would serve as a deterrent to others who would also promote hatred and incite violence.
In fact, there seemed to have been enough of a serious sense of concern and premonition of what the future could hold by our government leaders and groups such as Canadian Jewish Congress as a result of the significant rising proliferation of hate publications and racist public statements in Canada to cause them to take action back in the mid ‘60s. In January, 1965, over 56 years ago, a Special Committee on Hate Propaganda was appointed by the government of Canada to study the situation and make recommendations. The committee was chaired by Professor Maxwell Cohen, Dean of the Faculty of Law, McGill University. The other esteemed and well-respected expert members of the committee were : Pierre-Elliott Trudeau, then a professor of law at the University of Montreal; Saul Hayes, QC, Executive Vice-President of Canadian Jewish Congress; Dr. James A. Cory, Principal of Queens University; Father Gerard Dion, professor of Industrial Relations at Laval University; Dr. Mark McGuigan, then a professor of law at the University of Toronto and Shane MacKay, executive editor of the Winnipeg Free Press. The committee delivered its comprehensive Report in November, 1965.
In the Preface to its report, the committee stated as follows: “This Report is a study in the power of words to maim, and what it is that a civilized society can do about it. Not every abuse of human communication can or should be controlled by law or custom. But every society from time to time draws lines at the point where the intolerable and impermissible coincide…This Report explores what it is that a community can do to lessen some of man’s intolerance and to proscribe its gross exploitation.”
The principal recommendation of the committee was to amend the Criminal Code to create the criminal offences of 1) advocating or promoting genocide, 2) communicating statements in any public place inciting hatred or contempt against any identifiable group, where such incitement is likely to lead to a breach of the peace and 3) communicating statements which willfully promote hatred or contempt against any identifiable group.
Even taking into consideration the qualifications, diversity and expertise of the committee members and the comprehensive nature of its Report, which consisted of 327 pages, the Report and its recommendations were the subject of in depth analysis, discussion and debate by experts, officials and
Parliamentarians for a period of over five years. It was not until June, 1970 that amendments to the Criminal Code were passed by Parliament and received Royal Assent.
The Criminal Code was amended to, basically, include the three offences recommended by the committee with some clarifying modifications, as well as the addition of the requirement for the consent of the Attorney General of the Province or of Canada for prosecutions to be instituted in order to avoid frivolous charges. Although such consent was not included in the recommendations of the committee, attention was drawn by the committee to this possibility in its Report
The landmark decisions in the Keegtra case and the companion action of R.v Andrews confirmed the constitutionality of the anti-hate provisions of the Criminal Code in spite of “ freedom of speech “ arguments. James Keegstra was a high school teacher and Mayor in Eckville, Alberta. He taught his students vile anti-Semitic views. He was charged with promoting hatred against the Jewish people under anti-hate promotion provisions of the Criminal Code. In his defence, he argued that the provisions of the Criminal Code infringed his right to freedom of expression under the Charter of Rights. Don Andrews was the leader of the white supremacist Nationalist Party of Canada which distributed anti-black and anti-Semitic written material.
In its decision in the Keegstra case the Supreme Court set a very clear and specific test in defining the standards that had to be met in finding that a conviction was warranted pursuant to the Criminal Code as contemplated by Parliament. Chief Justice Brian Dickson, writing for the majority of the court, stated as follows:
“…hatred connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation.”
He went on to write “Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense 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.”
Justice Dickson also cited the finding of Justice Cory in the Andrews decision, who stated:
“Hatred is not a word of casual connotation. 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 the definition…
The Court, ultimately, found that the test had been met in these cases and although the offence of hate promotion infringed the right of freedom of expression, the infringement was a reasonable limit under the Charter of Rights and therefore permissible pursuant to the Constitution. The constitutionality of the Criminal Code provisions was established.
It is interesting to note the foresight and precognition of the Cohen Committee with respect to the potential future dangers. In its Report delivered decades ago, the Cohen Committee stated:
“The amount of hate propaganda presently being disseminated and its measurable effects probably are not sufficient to justify a description of the problem as one of crisis or near crisis proportions. Nevertheless the problem is a serious one. We believe that, given a certain set of socio-economic circumstances, such as a deepening of the emotional tensions or the setting in of a severe business recession, public susceptibility might well increase significantly.”
The Committee, as noted, given these insights recommended the hate propaganda amendments to the Criminal Code to prevent the harm identified and Parliament ultimately agreed.
The Reality of The Crisis Now
The socio-economic circumstances contemplated by the Cohen Committee are now a present reality and we are now facing not a near crisis but a crisis. This did not occur overnight but has been festering over time. Yet it is noteworthy that in over more than the half century, since the amendments were made to the Criminal Code, less than a dozen charges have been laid under the relevant provision. Yet, virtually every prosecution has resulted in the appropriate finding of guilt and proper punishment has been meted out. A number of these proceedings received a great deal of public and media attention as was warranted and delivered the message that government and society would not tolerate such practices and behaviour. Most recently, in a written decision released on July 16, 2021, the Court of Appeal of Ontario again rejected the attempts to appeal the convictions of James Sears on two counts of willfully promoting hatred against identifiable groups – Jews and women – contrary to the Criminal Code for statements written and published in Your Ward News which was distributed in Toronto and online between January, 2015 and June, 2018.
The existing laws work but are effective only if they would be used ! They should be used now !
Could we have done much more in view of the warnings we had and the events over time ? We have been witnessing the shocking increase of manifestations of racism over recent years. On January 29, 2017, 6 people were murdered and another 19 were injured after evening prayers in the Islamic Cultural Centre in Quebec City. The perpetrator had regularly viewed white nationalist and racist websites. On April 23, 2018, 10 innocent people, 8 of whom were women, were killed and another 16 people were injured on Yonge Street in Toronto by an individual who had posted his admiration for a misogynistic mass murderer. On June 6, 2021, a man deliberately rammed a pickup truck into a family of Muslim Pakistani Canadians killing 4 people and injuring 1 in London, Ontario. The attack was motivated by hatred of Muslims. There have been further numerous alarmingly increasing racist, antisemitic and anti-Muslim verbal and physical assaults across the country.
Government Initiatives
In the last number of weeks there have been four noteworthy Government initiatives to attempt to address these urgent dangers. These welcome steps of government recognize that government has the responsibility on behalf of society to clearly deliver the message that such antisocial behaviour is “intolerable and impermissible” and action needs to be taken now to fight racism and hatred. The challenge is to ensure that these steps are truly effective. Firstly, on June 23, 2021, Bill C-36, An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hates speech) was introduced. Secondly, on July 14, 2021, the Interim Report of The Inter-Parliamentary Task Force to Combat Online Antisemitism was released. On July 21 and July 22, 2021 the federal government conducted National Summits on Antisemitism and Islamophobia, respectively. Also, on July 29, 2021, the government launched a consultation process to deal with harmful online content.
Bill C-36 contains three distinct sets of changes to the existing laws. It sets out amendments to the definitions of “hatred” and the meaning of “communication of a statement” by adding “hatred means the emotion that involves detestation or vilification and that is stronger than dislike or disdain” and as an exclusion “the communication of a statement does not incite or promote hatred…solely because it discredits, humiliates, hurts or offends.” In this regard, it should be recognized that the Supreme Court in the Keegstra and Andrews cases had already interpreted the law with precision as previously noted in almost the same language as the proposed amendments. One may, therefore, question how these amendments add anything that would strengthen the law as opposed to creating unnecessary uncertainty with respect to the government’s stated intention of strengthening its resolve to fight the promotion of hatred. Instead such modification may encourage additional possible defences and challenges. The Bill also adds a new section to the Criminal Code creating, with the consent of the Attorney General, the ability of a person to obtain a recognizance to keep the peace (peace bond) if a person fears that another person will communicate hate propaganda or commit a hate crime. Questions have been raised as to whether the requirement for the consent of the Attorney General, the burden being placed on individuals and the need to incur legal costs in proceeding with a protracted process will render this tool too complicated to be widely utilized. Thirdly, the Bill reinstates the previously repealed Section 13 of the Canadian Human Rights Act which would authorize the Canadian Human Rights Tribunal to adjudicate complaints and order remedies with respect to hate speech. There is a belief held by some that since there are few prosecutions under the Criminal Code there should be the alternative to utilize the Human Rights Tribunal. Possibly if there were additional appropriate and timely criminal prosecutions there may not be a need for an alternative. It is also argued that it is the duty and responsibility of government to enforce these rules of society through the criminal law process since it is not and should not be a dispute between individuals and among groups. The point being made is that the burden and onus should not be placed on individuals or associations to fight this type of anti-social conduct through a lengthy process involving various levels. As well, it is noted that the Human Rights Tribunal operates with the underlying philosophy of attempting to resolve disputes through mediation and compromise which may not render the desired effective results. The possibility may also exist that the Human Rights route might offer an easy alternative that may be used by some individuals in positions of authority as an excuse for not proceeding with needed criminal prosecutions
The Inter-Parliamentary Task Force to Combat online Antisemitism was formed in November, 2020 and is composed of members of the legislatures of Canada, Australia, Israel, the United Kingdom and the United States across party lines. After consulting and receiving submissions from expert groups and civil society organizations, as well as researching and studying the initiatives and state of affairs in the represented countries, the Task Force delivered its Interim Report on July 14, 2021. On a preliminary basis, it recommended 1) that all governments, as well as social media providers adopt the International Holocaust Remembrance Alliance definition of antisemitism; 2) social media should enhance transparency with respect to its practices related to hate content; 3) Legislators consider ways to make online space safer for all while respecting their existing laws, including oversight bodies/regulatory process and 4) Legislators and social media platforms recognize the danger of disinformation online. These recommendations are welcome as is the stated intention to continue the work of the Task Force and to issue final recommendations in the future. However, there does not appear to have been an complete examination of the state of enforcement of existing applicable regulations and laws as well as international conventions and protocols which are presently in place and might be utilized now.
The National Summits on Antisemitism and Islamophobia held on July 21 and 22, 2021 brought together respective community leaders, the Prime Minister, Federal Ministers, Members of Parliament and officials of provincial and municipal governments. The purposes of the Summits were to discuss the concerns, understand the problems, receive recommendations and identify concrete steps and ways the government can address the the issues. During each Summit, the government committed to: 1) engage each community on the next Anti-Racism Action Plan which will be launched in the future after 2022; 2) explore potential adjustments to several funding programs such as security infrastructure, programs, events and projects; 3) improve digital literacy and tackling misinformation and 4) renew efforts to combat antisemitism, Islamophobia and hate. In addition, a number of specific funding announcements were made. It appears that, although these were important steps to be taken, there were no statements of commitment to utilize and enforce existing laws.
The July 29, 2021 government announcement that a consultation process was being launched to deal with online hate follows the June, 2019 Report of the House of Commons Standing Committee on Justice and Human Rights on its study of online hate. Over two years ago, the committee heard from 59 witnesses who appeared on behalf of organizations from across the country and as individuals. Twenty briefs were also received by the committee. The Report of the committee which consisted of 72 pages had very specific and detailed recommendations to combat hate on the internet. The Committee had as its first recommendation “That the Government of Canada increase funding for law enforcement, crown attorneys and judges to ensure that they receive sufficient training and orientation on the importance, and the need to combat online hatred, including being sensitive to complainants.” Secondly, the committee recommended “That Justice Canada develop materials and best practices on collecting data and combatting online hate to be distributed to law enforcement agencies across Canada.” The committee also recommended that the Government establish requirements for online platforms and internet service providers in addressing online hatred. Subsequent to the release of the committee Report, the Department of Justice issued a further Consultation Paper on July 14, 2020 to canvass views in order to develop options for legal remedies including the utilization of the existing Criminal Code provisions with the possibility of removing the requirement of obtaining the Attorney General’s consent for prosecution or, alternatively, establishing guidelines for when the Attorney General ought to provide consent. Submissions were made in response to the Consultation Paper. Still the announcement in July, 2021 indicated that further consultations were needed
Action Needed Now
These four different attempts to address the serious and urgent dangers of hatred we are now facing not only in Canada, but worldwide should be appreciated since they demonstrate that most of our political leaders, across party lines, now have recognized the urgency of the situation and are trying to find ways of dealing with it. It is clearly a complex widespread problem that requires efforts on many fronts. At the same time, it is also understood that there are a number views of values and rights that need to be respected and protected. One of those values is freedom of speech and opinion. We have to respect that those who sincerely and in good faith advocate on principle for the protection of freedom of speech and opinion are genuinely concerned that these freedoms not be endangered. This does not mean they support the hatred spread by racists. On the other hand there are many whose true intent is to promote and spread hatred and racism by hiding behind the veil of freedom of speech and opinion. Their true agenda and purpose is to create social disorder and destruction of our values and not to promote freedom of speech and opinion. Their real intent must be determined in order to properly protect ourselves and for this form of a challenging task we rely upon our judicial system and the wisdom of our judges to interpret and apply the law in accordance with the intent of our legislators and based upon precedents to protect the welfare of society. This, at times, requires compromise and other times finding that one of the competing values has to override another for the benefit of all people. The latter is precisely what our judiciary has deemed appropriate in dealing with hate propaganda. Today it is most critical that we rely on our legal system to address the dangers we face. The laws of the Criminal Code are available to us and should be enforced now to express that the present situation is urgently abhorrent and a crisis. All other efforts to fight racism can continue simultaneously as well. We have a crucial collective responsibility to ensure that all of us are able to lead safe, peaceful and harmonious lives without fear and with dignity. We have laws and standards that uphold the values of justice, equality and the rules of a civil society. These should not be merely words of intentions, but a call to action now. It is essential that government provide clear leadership immediately in directing the the visible utilization of the criminal laws which have been established over time to fight hate by requiring law enforcement agencies to vigorously investigate complaints; properly and within the law monitor media, publications, public statements and the internet and to initiate appropriate prosecutions in a timely fashion in order to allow our courts to adjudicate and apply the rule of law. Recent events clearly demonstrate that we can’t wait any longer.
I believe that those neighbours, teachers and parents, who I knew and were role models during my youth, fully understood the lessons of the history of 1930s and 1940s and would agree that this is proper path.
