Ethnocultural Groups
&
The Justice System in Canada
A Review of the Issues

Hate Crimes, Hate Material
and
Hate Groups

12.1 An Integrated Perspective on Hate Crimes and Activities

The problem of hate crimes does not appear to be minor. Anecdotal evidence points to the existence of wide ranging and serious activities. Unfortunately, there are no reliable quantitative data available on the extent and scope of hate crimes. While there is data on how often the hate propaganda provisions are employed, there are no official criminal justice system statistics specifically on hate crimes. Some police forces in the country are now beginning to collect such data,<304> but there has been no national attempt to collect statistics on criminal acts that are deemed to be motivated by racial hatred. Nevertheless, newspaper articles suggest that criminal acts of violence against property and people, motivated by hatred against people because of their membership in a group, do occur in this country and, while they may be few in number, are a source of fear for personal safety for ethnocultural groups and individuals. <305>

Furthermore, hate groups are numerous and openly active in this country:

In 1991, the Canadian Centre on Racism and Prejudice exposed the far-right network in Canada listing 44 groups and organizations as part of this network in Canada. A recent issue of Klanwatch Intelligence Report in December 1992, an American publication that monitors hate group activities, featured a special report on the development of white supremacist organizations in Canada with a similar assessment of the network in our country....At this point, the white supremacist movement in Canada embraces dozens of organizations, active on a national, continental or local level. Some groups are made up of a few individuals that share the same views and programs, while others, like the Heritage Front, are made up of a few hundred individuals. In 1992, these organizations have seen a dramatic increase of their public profile, particularly for the Heritage Front, while gaining new recruits in most regions of Canada. The first three months of 1993 have been marked by a definite attempt to unify the movement on a national basis.<306>

The problem is becoming an issue of wide public concern. A recent Gallup poll suggests that the majority of Canadians feel that racial intolerance has increased in the past five years and that racial problems will increase in the next five years.<307>

The problem of hate crimes is not likely to be easily solved or addressed. The three aspects of the "hate problem": materials, behaviours and groups are not distinct. Rather, they are interrelated in complex ways, making an approach to any aspect difficult. For example, the interrelationships create multifaceted problems whereby "hate crimes" cannot be addressed without dealing with "hate groups." As the recent newspaper articles suggest, hate groups are involved in the promotion and dissemination of hate propaganda as a principal mechanism for spreading their messages and beliefs. 308 These two aspects of the hate problem, hate groups and hate materials are related problems. Attempting to address materials without attempting to address the role of groups in the production and distribution of these materials is not likely to be as successful as addressing both together as related aspects of one overall problem. Recognition of the interrelatedness of the three aspects of the hate problem provides an important first step in achieving effective solutions.

On the other hand, attempting to address hate groups may not have any great effect on the overall problem of hate crimes. Hate groups "do not create racism, they organize it."<309> If hate groups are organizers rather than creators of racist attitudes and sentiments, the control of hate groups may not have the desired longterm effect of controlling hate crimes since this kind of approach would not address the existence of attitudes and beliefs which tolerate and even condone acts of discrimination against racial and visible minorities. It appears, then, that addressing the three aspects of materials, behaviours and groups as separate focal points is not likely to be as effective as a more rounded effort to combat hate crimes; and, addressing the wider sentiments of prejudice and racism, upon which hate groups play, would also seem to be warranted and important. This is not to say that the three aspects of hate crimes should not be addressed on their own, but a more rounded approach to the problem, involving both legal and non-legal approaches, is more likely to be successful.

Furthermore, hate groups appear to be sophisticated, resourceful, and well organized in their efforts. For example, the creation of a record company to produce hate music and the adoption of the tactic of having it distributed from a United States-based mailing address<310> signifies that hate groups operating in Canada are sufficiently funded to undertake large-scale and varied activities; and that they are adopting strategies designed to overcome the laws and resources in place in Canada to combat their activities. Again, it appears that addressing the problem of hate crimes will not be easy and a varied approach to limiting the activities of hate groups and hate crimes is necessary.

An informed approach should be based on empirical evidence with respect to the nature, organization and structure of hate groups operating in Canada as well as an objective understanding of the extent of the hate-propaganda problem and other forms of hate-motivated crimes. Unfortunately, the empirical research in this area is lacking in the Canadian context, and it is required to address these information needs.

12.2 Materials Promoting Hatred

As noted above, Canada's Criminal Code contains provisions to combat hate propaganda. These provisions against advocating genocide, public incitement of hatred and wilful promotion of hatred were created in 1970, following the Cohen cornmittee's3" recommendations for such criminal law provisions. However, there has been significant debate and criticism on these hate-propaganda provisions. Two important opportunities were provided by the Law Reform Commission of Canada's 1986 study of the provisions,<312> and the creation in 1988, of a governmental working group on hate propaganda.<313>

The working group was created to examine the existing hate propaganda provisions with a view to making recommendations to facilitate the prosecution of cases such as Ernst Zundel and James Keegstra. The working group identified a number of issues with respect to the use of the provisions and offered a number of recommendations for improving the legislation. One apparent problem that the working group addressed was that the Criminal Code hate-propaganda provisions rarely have been used in Canada. This suggests there may be potential problems with the law itself, which might be addressed to employ the provisions more often and with better results.

The fact that the provisions are used rarely is also reflected in the expressed concerns of ethnocultural and minority groups in Canada that hate crimes, including the need to better prosecute hate-propaganda laws, is one of their key justice issue concerns.3'4 The main reason for not enforcing the hate-propaganda laws appears to be the long- recognized tension in the law between the need to protect society from the harmful effects of hate propaganda which entails putting a limit on people's ability to express their views, and the expressed and important guaranteed right to freedom of speech.<315>

In-dealing with the aspect of materials, the justice system is faced with the task of ensuring that the harmful effects of hate propaganda are minimized, but doing so through the criminal law is difficult given the tension between free speech and hate propaganda restrictions on communication. Nevertheless, it may be possible to increase the use of the Code by, for example, removing or relaxing (a) the requirement of the Attorney General's consent<316> with respect to genocide provision, or (b) the available legal defences to the inciting and promoting hatred provisions.3" Furthermore, there are other avenues available for legal action such as human rights legislation and/or the creation of a tort of group defamation. Nonlegal approaches could also be employed to diminish and control the harmful effects of hate propaganda. For example, an education program could be undertaken to counter the claims of hate propagandists and/or to inform people of what hate propaganda is and how it effects them.

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