Why Prohibit Hate Propaganda
The Harm that Goes Beyond the Individual Victim
The Significance of the Educational Message
Scope of Current Hate Propaganda Legislation: Sections 318 & 319
The Slippery Slope from Hate Speech to Hate Violence
How Prevalent is Hate Propaganda on the Ground of Sexual Orientation?
“Identifiable Group” Should Include Sexual Orientation and Other Grounds
The Amendment is Not About “Special Rights”
Additional Mechanisms to Combat Hate
1. Summary of EGALE Submissions
EGALE strongly endorses the enactment of Bill C-250, which provides for the amendment of the current hate propaganda legislation s.318(4) of the Criminal Code, to include “sexual orientation” as an enumerated ground under “identifiable group”:
1. Subsection 318(4) of the Criminal Code is replaced by the following:
(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.1
Hate propaganda has a particularly injurious effect on the victim since it reinforces the negative effects of discrimination and substantiates the victim’s fears that he or she is not safe or valued in the society where he or she lives. Lesbians, gays and bisexuals may respond to hate mongering by concealing their identity, avoiding living their lives freely, honestly and openly out of fear of becoming targets for further hate. Hate propaganda undermines the security of not only the particular victim of the crime, but all members of the class targeted.
Furthermore, the promotion of hate against any disadvantaged group is a direct affront to the integrity of all of Canadian society. The exclusion; of other grounds such as disability, sex, and gender identity continues to invite the possibility for Canadians who identify in these groups to be victims of unrequited hate. EGALE believes these injustices must be redressed accordingly and that Parliament should consider the further expansion the definition of “identifiable group” in order to encompass the needs of other disadvantaged groups in society.
Legal sanction is one of many mechanisms to remedy and prevent social injustices. EGALE supports the development of a comprehensive national strategy to combat hate against disadvantaged groups. Information gathering through better tracking mechanisms and educational campaigns promoting awareness and equality are only a few alternatives that should be considered as part of a wide-ranging program to eliminate hate crimes in Canada.
Ultimately, the criminal law is the central means of defining appropriate standards of conduct in society. The deliberate promotion of hate against lesbians, gays and bisexuals reinforces discriminatory attitudes and sends the message that the lives of lesbian, gay and bisexual Canadians are not of equal worth. As such, EGALE believes it is important for Parliament to demonstrate its abhorrence for such hate promotion by including “sexual orientation” as a ground under “identifiable group”.
2. About EGALE
EGALE Canada is a national organization committed to advancing equality and justice for lesbians, gays, bisexuals and transgendered people, and their families, across Canada. Founded in 1986, EGALE is the only lesbian, gay and bisexual organization in Canada with a specific focus on federal issues
EGALE has consistently lobbied for hate propaganda laws to protect lesbians, gays and bisexuals. EGALE has appeared before numerous federal Parliamentary Committees, including the House of Commons Committees on Justice and Human Rights, Human Resources Development, Citizenship and Immigration, and the Sub-Committee on Tax Equity for Families with Dependent Children, as well as the Senate Constitutional and Legal Affairs Committee, and the Joint Parliamentary Committee on Custody and Divorce. EGALE has also participated in the Ministerial Legislative Review on immigration issues, Statistics Canada consultations concerning the 2001 census, public hearings conducted by the Canadian Radio-Television Telecommunications Commission, and public consultations held by the Royal Commission on New Reproductive Technologies. EGALE has made submissions to provincial and territorial committees in British Columbia, Manitoba, Prince Edward Island, New Brunswick, Quebec and the Northwest Territories.
EGALE has also intervened before the Supreme Court of Canada in the cases of Egan v. Canada, dealing with equal old age security benefits for same-sex couples, Mossop v. Canada, concerning the ability of same-sex couples to obtain equal funeral leave, Vriend v. Alberta, a case which addressed the obligation of the Alberta government to add “sexual orientation” to its human rights legislation as a prohibited ground of discrimination, M. v. H & Ontario, dealing with the exclusion of same-sex couples from the spousal support provisions of Ontario’s Family Law Act, Little Sisters Book andArt Emporium v. Canada Customs, dealing with the application of censorship practices to lesbian, gay, and bisexual materials, B.C. College of Teachers v. Trinity Western University, dealing with the teaching accreditation of a University that maintained anti-gay policies and Chamberlain v. Surrey School Board, dealing with a challenge to a School Board’s decision to ban books depicting same-sex families from the classroom. EGALE coordinated a coalition of equality-seeking groups to intervene before the Ontario Court of Appeal in CUPE & Rosenberg v. Canada, which dealt with changes to the Income T~ Act to extend equal pension benefits to same-sex couples.
Most recently, EGALE was active before the courts in British Columbia, Ontario and (as part of a Coalition) in Quebec, addressing the constitutionality of prohibitions on same-sex marriage, as well as in the cases of Brockie v. Canadian Lesbian and Gay Archives and Marc Hall v. Durham Catholic District School Board, which dealt with the intersection of the rights to freedom of religion and freedom from discrimination on the ground of sexual orientation.
EGALE has also been involved in extensive public education and international activities. EGALE participates in annual consultations sponsored by the Department of Foreign Affairs and International Trade, and EGALE representatives have attended the United Nations World Conference on Human Rights in Vienna, the United Nations World Conference on Women in Beijing, the International Year of the Family Conference in Montreal, and the United Nations World Conference against Racism in South Africa.
EGALE maintains an active commitment to bringing an intersectional approach to our work, meaning that we recognize the linkages between different forms of oppression such as racism, sexism, classism, ableism, homophobia and transphobia, and recognize that respect for each individual’s full identity requires that our struggle for equality cannot be carried out in isolation from the struggle for equality of all disadvantaged communities.
3. Why Prohibit Hate Propaganda?
Equality is enhanced when the expression of pure hatred and intolerance among diverse groups is minimized. This goal is accomplishable, at least in theory, through state condemnation and criminal sanction. The corollary is that when the state permits the propagation of hateful expression against particular groups, then the commitment to respect for diversity and likelihood of equality is seriously undermined.2
(a) The Harm that Goes Beyond the Individual Victim:
Hate propaganda by its nature is more’ serious because it affects a broader class of victims than the person directly targeted. All members of the target group are made to feel insecure because they know that it could just as easily have been directed against them. The Supreme Court of Canada has recognized the broader impact of hate propaganda upon members of a targeted group:3
“This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity through, among other things, respect for the many racial, religious and cultural groups in our society….
The violence resulting from the promotion of hatred is not its only real harm. The issues become confused when it is violent, hate-motivated crimes that appear to be the events that prompt the call for inclusion in hate crime provisions: hate propaganda breeds hatred by its legal definition, contributing to a social climate where such violence seems less inappropriate. However, that violence is not the only evil that the state has an interest in ameliorating; there is also the psychological harm and affront to human dignity suffered by those targeted, as well as the hate-filled social climate that prevents the proper functioning of a free and democratic society. Independent of the violent crimes inspired by hateful speech, the speech itself causes real and serious harm not just to those who are its target, but to society as well.4
Furthermore, the Quebec Human Rights Commission’s Public Hearings, investigating violence and discrimination against lesbians and gays in the early 1990’s, found that acts of violence based on sexual orientation are often accompanied by homophobic insults and threats, and the degree of physical violence used is often more extreme.
In R. v. Keegstra, the Supreme Court of Canada upheld the constitutionality of the hate propaganda provisions in the Criminal Code, and stated:5
“In my opinion, a response of humiliation and degradation from an individual targeted by hate propaganda is to be expected. A person’s sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs. The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual’s sense of self-worth and acceptance.”
Hate propaganda seriously threatens both the enthusiasm with which the value of equality is accepted and acted upon by society and the connection of target group members to their community.
(b) The Significance of the Educational Message:
The criminal law helps define acceptable standards of social behaviour. As the Supreme Court of Canada has stated:6
“The criminal law is a very special form of governmental regulation, for it seeks to express our society’s collective disapprobation of certain acts and omissions.”
Unfortunately, we live in a society where ignorance and fears lead many people to believe it is acceptable to hate lesbian, gay, bisexual and transgendered persons. Not surprisingly in such a climate, some members of society express their hatred through violence. Public expressions of hatred reinforce the message that this violence is acceptable.
The Supreme Court of Canada has recognized that criminalization of hate propaganda “serves to illustrate to the public the severe reprobation with which society holds messages of hate … the message sent out is that hate propaganda is harmful to target group members and threatening to a harmonious society…. The harms caused by [hate propaganda] run directly counter to the values central to a free and democratic society, and in restricting the promotion of hatred Parliament is therefore seeking to bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons.”7
Furthermore, “government sponsored hatred on group grounds would violate section 15 of the Charter. Parliament promotes equality and moves against inequality when it prohibits the wilful public promotion of group hatred on these grounds. It follows that government action against group hate, because it promotes social equality as guaranteed by the Charter, deserves special constitutional consideration under section l5.”8
If Bill C-250 is enacted, it will send the clear message that homophobic hate expression is just not acceptable. Similarly, if Bill C-250 is not enacted – or if “sexual orientation” is not included – it will send the equally clear message that Parliament is not concerned about the serious harm regularly suffered by lesbians, gays and bisexuals.
4. Scope of Current Hate Propaganda Legislation: Sections 318 & 319
EGALE is aware of scare mongering that has lead to the overstatement of the current hate propaganda laws and fear that freedom of expression and freedom of religion might be under attack. As such, it is important to emphasize the many safeguards and limits included in the legislation that affirm the validity of freedom of expression and religion, while simultaneously protecting equality.
The legislation does not apply to:
an unintentional statement that does not satisfy the high mens rea required under the terms “willful promotion”
a statement made in private conversation;
a simple encouragement or advancement of hate;
a religious opinion expressed in good faith;
a reasonably believable statement expressed in good faith for the public benefit; or
a reasonably believable statement meant in good faith to remove hatred against a group.
The legislation only applies if:
the Attorney General grants consent to proceed;
there is an extreme manifestation of hatred;
the communication is “willful”, according a high standard of intention in terms of a criminal mens rea where one subjectively desires the promotion of hatred or foresees such a consequence as certain or substantially certain to result from their act done to achieve a separate purpose;
the communication is public;
the target of the hatred is a distinguishable group on the characteristics listed under s.319(2) “identifiable group”;
the content of a message is so intense and extreme in its offensiveness that it can be clearly associated as vilification, detestation, ill-will, or malevolence in another and imply that the group targeted should be despised, scorned, denied respect or be subject to ill-treatment
The legislation provides that one can prove legitimate speech based on the following defences:
the message communicated is established on a balance of probabilities as being true;
the message was communicated outside of private conversation; or
the message was a religious opinion expressed in good faith;
the message was expressed in good faith for public benefit or to remove hatred;
the target of the hatred is not a group distinguishable on the characteristics listed in the statutory definition of “identifiable group” (which, as the definition currently stands, are colour, race, ethnicity, or religion).9
It is clear that Parliament has created a balanced law that provides for the protection of free expression and the protection of Canadian society from the harmful effects of hate propaganda. The purpose of Bill C-250 and the current hate provisions is not and has never been to attack nor restrict Canadian’s civil liberties, on the contrary, the purpose is to affirm the importance of civil liberties by recognizing the difference between legitimate speech and hate mongering that infringes the liberty of all Canadians. Freedom of speech and freedom of religion remain well protected; the effect of the current hate propaganda laws and the proposed amendment will serve to protect the freedom to live without fear for all Canadians, regardless of sexual orientation.
5. The Slippery Slope from Hate Speech to Hate Violence
To allow the promotion of hatred of lesbians, gays and bisexuals will ultimately lead to a climate of disrespect and the degradation of the personal dignity of all individuals who identify within these groups. As a result, this intolerance will often manifest itself into physical violence. Hate speech and hate violence are not completely separate entities existing within individual vacuums of expression. It is imperative to recognize that one form of expression breeds the other. Experience and statistics reflect this relationship insofar as the mouth that spouts the hatred is more often than not related to the hand that throws the punch.
In a New Brunswick Study on Discrimination and Violence against Lesbians, Gays and Bisexuals10, it was found that 82% of respondents had been verbally abused for being lesbian or gay, 34% had been chased or followed because of their sexual orientation and 10% had been spat upon 19% had had their property damaged because of homophobia. 17% had had objects thrown at them, and 18% had been punched, kicked, hit or beaten because of their sexual orientation. 23% of New Brunswick gays or lesbians had been harassed or assaulted by the police.
Similar results were found in a recent Nova Scotia study11 on homophobic abuse and discrimination. In Nova Scotia, 72% of respondents had been verbally abused, while no less than 42% had been threatened with violence. 33% had been chased or followed because of their actual or presumed sexual orientation, while 9% had been spat upon. 12% had had their property damaged. One man, for example, had the word “Fag” engraved on his car hood12, while a lesbian couple had their home vandalized by a person who was looking after it while they were away, with special attention being paid to the destruction of mementos, photographs and letters.13 Furthermore, the Law Reform Commission of Canada has recognized that “in recent history, homosexuals have been subjected to hateful attacks which led to their physical harm. After all, homosexuals were also victims of the genocidal policies of the Nazis.”14
Any lesbian, gay or bisexual walking the streets knows that they are exposing themselves to the risk of verbal attacks, violence and even death if they hold their partner’s hand, for example, or wear a shirt or button that identifies them as gay or lesbian, or attend a venue or event associated with the lesbian or gay communities. It somehow takes the pleasure out of feeling the warmth of your partner’s hand in your own when you know that any passing stranger might take it upon himself to beat either or both of you, possibly to death.
6. How Prevalent is Hate Propaganda on the Ground of Sexual Orientation?
EGALE believes that most Canadians are committed to the principles of equality, tolerance and respect Unfortunately, there remains enough intolerance against groups such as lesbians, gays and bisexuals to significantly detract from the quality of life of members of the targeted groups. Lesbians, gays and bisexuals are systematically targeted for hatred and abuse in Canada because of their sexual orientation. It is imperative that the law recognizes the seriousness of this criminal activity and reflects that seriousness by including the ground of “sexual orientation”.
For lesbians, gays and bisexuals, hate-motivated expression compounds the difficulties experienced in overcoming the stereotypes and prejudices prevalent in the society in which we live:15
”As young people we are told that gays are to be avoided and gayness hidden because homosexuals are perverted, unhealthy, unhappy, disgusting and likely to molest heterosexuals. Sometimes it was said directly through queer jokes, verbal attacks and threats or reports of violence. Other of us heard more subtle comments … bit by bit we began to accept what we were told. We absorbed anti-gay beliefs before we knew that we were gay. It was often only with great difficulty that we could acknowledge our own gayness, for then these beliefs would apply to us.”
In contemporary Canadian society, anti-LGBT violence occurs on a regular basis. Although statistically it is difficult to prove this assertion, many members of LGBT communities would concur that hate motivated violence, verbal assaults, slurs, graffiti, and other acts of homophobia and condemnation are a reality.16
7. “Identifiable Group” Should Include Sexual Orientation and Other Grounds
Sections 318 and 319 of the Criminal Code create a substantive crime of advocating genocide or promoting hatred against identifiable groups. In order to properly redress hate propaganda under these provisions, the definition of “identifiable group” in the existing s.318(4) should be amended to include, at the very least, “sexual orientation”, and more appropriately, to include other disadvantaged groups.
First, at a minimum, it is illogical and inconsistent that the sentencing provisions for hate crimes are inclusive, while the hate propaganda provisions are severely underrepresented. The sentencing provisions in s.718.2 recognizes the significant harm of hate against disadvantaged groups by including the ability to impose harsher sanctions on crimes 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. There is no sound reason why the related hate provisions in s.318 and 319 should not follow the same logic as the hate sentencing provisions in s.718.2(a) and include “sexual orientation” as an “identifiable group”. If Parliament recognizes that certain disadvantaged groups could be in the position where crimes perpetrated against them warrant higher sanctions if it were motivated by hate, then it is only logical that the same disadvantaged groups be recognized as being in the position where they could be victims of equally harmful hate propaganda. However, simply bringing the current definition of “identifiable group” in s.318(4) up to par with the grounds enumerated in s.718(2)(a) would be insufficient.
Even the grounds in the hate sentencing provisions suffer the problem of underinclusiveness. Thus, leading to the second and more important argument that the current definition of “identifiable group” in s.318(4) is severely underinclusive. Underinclusiveness is the effect of a law that offers protection or benefit to some groups but fails to extend it to others. Although Parliament may be under no positive obligation to create benefit or protection schemes to disadvantaged groups, once they have decided to do so, they must do it in a manner that is non discriminatory.17 Justice Iacobucci explains why underinclusive legislation is problematic in Law v. Canada, “it is the legislation’s failure to take into account the true characteristics of a disadvantaged person or group within Canadian society (i.e., by treating all persons in a formally identical manner), and not the express drawing of a distinction, which triggers s. 15(1).”18 19
Particularly, in the case of the omission of “sexual orientation” in the current hate propaganda provisions, the definition of “identifiable group” in s.318(4) fails to take into account the disadvantaged position of persons who identify as lesbian, gay, bisexual, in Canadian society. This failure subjects these individuals to substantively differential treatment on the basis of sexual orientation, an analogous ground in s.15(1) of the Charter. The effect of this differential treatment is that the dignity of persons who identify as lesbian, gay, or bisexual is undermined, and the view that they are less deserving of concern, respect, and consideration is perpetuated. Furthermore, as a consequence of this effect, the definition in question infringes the right to equal protection and benefit of the law guaranteed in 5. 15(1), and thus constitutes a Charter violation.20 Therefore, s.318(4) is underinclusive because it fails to take into account the already disadvantaged position of lesbian, gay and bisexual persons in Canadian society, resulting in substantively differential treatment between homosexuals and heterosexuals and thereby perpetuating a cycle of discrimination on the basis of sexual orientation.21
Moreover, EGALE is committed to combating intersectional oppression and therefore supports the inclusion of other grounds beyond sexual orientation, such as disability, sex and gender identity. The current state of s.318(4) not only leaves lesbians, gays and bisexuals vulnerable to hate mongering, but can also exacerbate the oppression many individuals may face by not protecting them completely. The categories of identifiable groups do not exist in independent vacuums, but rather they do overlap, and as a result many people may face multiple forms of disadvantage. Accordingly, it is important to recognize that the current hate propaganda legislation suffers from severe underinclusiveness and effectively unconstitutionality due to the absence of not only “sexual orientation” but other grounds as well.
Furthermore, EGALE places particular emphasis on ensuring the protection of transgendered people from discrimination and harassment by including the ground of gender identity. Many transgendered Canadians do not yet have explicit protection from discrimination, despite facing high levels of harassment and discrimination in the workplace, accommodation and in seeking access to goods and services. In a keynote speech on “The Rights of Transgendered Persons”, delivered on March27, 1998, at the “Crossing Borders” Conference, the Hon. Keith Norton, Chief Commissioner of the Ontario Human Rights Commission, said:
“Discrimination against transgendered persons is systemic.. .Transgendered persons have been an especially marginalized group, with special issues and concerns about which society at large is ignorant.. The term ‘transgendered’ includes a range of behaviours linked to gender identity. It applies to those who are not comfortable with, or who reject, in whole or in part, their birth-assigned gender identities. In transgendered persons, the gender identity and the genetic sex may not correspond.”
Following a year4ong national consultation process, the Canadian Human Rights Act Review Panel unanimously recommended in 2000 that the Canadian Human Rights Act be amended to explicitly protect transgendered people from discrimination. Other Human Rights Commissions have recommended and are considering adding gender identity as a protected ground including the British Columbia Human Rights Commission and the Ontario Human Rights Commission. The Ontario Human Rights Commission has developed formal guidelines for receiving discrimination complaints based on gender identity, and discrimination complaints by transgendered people have been heard by Human Rights Tribunals in a variety of jurisdictions, including British Columbia, Ontario, Quebec and federally. Recently, the Northwest Territories became the first Canadian jurisdiction, where the human rights legislation protects against discrimination under the specific enumerated ground of “gender identity”.
Transgendered people should not be denied protection or forced to try and fit themselves within existing grounds which are not necessarily applicable, in order to be able to seek redress against hate crimes. The only credible solution is to include gender identity as an enumerated ground under “identifiable group”. EGALE emphasizes the immense educational value in raising public awareness and understanding the needs of transgendered people. Unfortunately, we live in a society where many people are taught that it is acceptable to hate those who are different because of factors such as sexual orientation or gender identity. The lack of clear legal denunciation of transphobic hatred and discrimination legitimizes hatred. While legislation cannot change intolerant attitudes overnight, it can provide the educational foundation for a more informed perception of transgendered rights.
In summary, it is not acceptable to tolerate the continued effect of underinclusiveness and discrimination being suffered by other groups currently excluded from these provisions. Nevertheless, Canada’s current hate propaganda legislation is perpetuating and inviting the harm of hate on groups such as lesbian, gay, bisexual and transgendered people who are not included in the provision.
Members of Parliament have long since recognized the need to expand the definition of “identifiable group” in order to be more inclusive of the needs of the disadvantaged groups ill Canadian society. From 1988-1994, former Cabinet Minister, the Honourable Don Boudria proposed several bills in an attempt to add “age” to the definition.22 Furthermore, the Honourable Peter Milliken, prompted by complaints from the Kingston Police Services Board about comments in the press that promoted hatred against persons with HIV and AIDS, sought in 1992 to add age, sex, sexual orientation, and mental or physical disability.23 Unfortunately, previous attempts at expanding the definition have all failed. EGALE feels it is time to stop ignoring these needs. If the government will not act now to expand the definition of “identifiable group” to include other grounds such as disability, sex and gender identity, then we ask that Parliament commit to a process where needs of these groups be addressed in the future or to establish a sufficiently flexible list that will not suffer the problems of underinclusiveness and discrimination.
Fred Phelps, an ardent anti-gay minister from the U.S. who was allowed to enter Canada with his followers to denounce homosexuality and preach his message of hate. In a poster produced by anti-LGBT advocate Reverend Phelps and his Westboro Baptist Church members stated, “Canada is now fit only for fags, turning it over…as a sanatorium for …all guilty, sodomite AIDS carriers.”24
The Ottawa Police Liaison Committee for the Lesbian, Gay, Bisexual and Transgendered Communities has archived over ten years of anti-LGBT incidents, including two anti-LGBT hate propaganda incidents in December 2001. The first involved hate graffiti in Ottawa’s east end, the victim’s garage door had been tagged with the word ‘Queer’ 25 The second anti-LGBT incident occurred at Carleton University, where a young male residing in Residence had his name and the word ‘gay’ sprayed on the wall by his door.26
An anti-gay website run by Ken Fast and John Micka, from Burnaby, British Columbia depicts gays as pedophiles and predators. As posted in the website’s guestbook: ”Homosexuality is unnatural, and faggots are rampant shit fucks.” The Canadian Human Rights Tribunal ordered the website shut down – but it is still currently in operation.
EGALE has received various emails over the years from individuals and groups promoting hate against the homosexual community.
2002-07-13 “I am disgusted with these homos and they’re [sic] dirty agenda.”
2001-I 1-28 “You people are sick individuals and you need professional help.”
Written across an EGALE information pamphlet about supporting equality: “FAGS -FUCK YOU!”
Newspaper columnist, Dave Brown characterized homosexuality as a disease in the March 13, 2001 edition of the Ottawa Citizen: “I believe that in many cases homosexuality can be an addiction, like alcoholism, that the afflicted can’t or won’t shake.”
This past winter, 2002, Ryerson Polytechnic University in Toronto was covered with violent homophobic and racist graffiti: “Homos must stop infesting Toronto the good!” “Death to Homos!” It should be noted that the university spokesperson indicated that signs would be posted indicating these hate statements were a contravention of the Canadian Human Rights Act.. but at this time they would still be legal under Canadian criminal law.
In 2001, spray painted on the store Ottawa store “After Stonewall” was a large X over a pride flag and “FUCKIN FAGS”
In 1993, the neo-Nazi “hate line” in British Columbia entitled “Liberty Net” had this recording played on it’s outgoing message “The ancient Celts used to take their queers and trample them into peat bogs…That’s not such a bad idea.”
9. The Amendment is Not About “Special Rights”
The reality is that certain groups in our society are singled out as targets of prejudice, stereotypes, discrimination, hate and violence. Accordingly it is necessary that the laws of our society respond and protect these groups from such persecution. Nothing in this amendment confers “special rights” on lesbians, gays and bisexuals. The legislation will protect heterosexuals equally with lesbians, gays and bisexuals, even though heterosexuals do not live with the same conditions of disadvantage and are not targeted for violence in the way that lesbians, gays and bisexuals are.
Lesbians, gays and bisexuals are systematically disadvantaged in just about all aspects of our lives. We do not have access to the same benefits as heterosexuals, we are not adequately or consistently protected from discrimination, we are subject to conditions of disadvantage and constantly live with the threat of violence. We are not seeking anything that heterosexuals do not or will not enjoy. Precisely what “special rights” lesbians, gays or bisexuals would have under the proposed legislation has never been clearly articulated.
It is not a “special right” to be able to live your life without fearing for your personal safety. Security of the person is a basic right that we should all be able to enjoy, but lesbians, gays and bisexuals currently cannot enjoy this security because of unacceptable levels of homophobic violence.
10. Additional Mechanisms to Combat Hate
Currently, much of the information about the prevalence of hate propaganda and hate crimes in Canada comes from the first hand stories and experiences of witnesses and survivors. In order to effectively combat and prevent the significant harm caused by hate, it is necessary to carry out an all-encompassing national strategy against hate. Such a strategy should information gathering, awareness programs and prevention, in order to create a comprehensive approach to redress hate against disadvantaged groups.
In the United States, the Hate Crimes Statistics Act was enacted to govern the measurement of the incidence of homophobic violence. However, in Canada, there is no such national equivalent. While in some cities and provinces, the local authorities might be recording incidents of hate.. .the current tracking methods are still very limited in scope. Most of the evidence gathered and documented by researchers pertaining to hate motivated incidences against LGBT communities is obtained through community reports, oral histories, personal diaries of survivors, articles, newspapers and other secondary sources.27 It is imperative that all hate incidents be tracked and recorded in order bring the significance of the problem to the attention of lawmakers, and also to find the best solution. From local level police reporting to nation-wide statistics, government initiative 5 for better tracking and reporting mechanisms are just one of the ways in which we can help combat and prevent hate propaganda and hate crimes in our country.
Prevention is the best medicine. If we want to promote an equal, free and democratic society for all Canadians, it is important not only to sanction the perpetrators of hate, but also to educate and inform all citizens about the harms of hate and about the importance of equality for all citizens. Education is the most effective weapon against ignorance. For example, Montreal held such campaign promoting awareness about issues of race and gender.
EGALE supports the development of a national initiative against hate. Measures that should be included in such a strategy range from a national hate crimes tracking system, including intersectional tracking of hate incidents, to nation-wide educational campaigns on the importance of equality and the harm caused by hate. This legislation is an important first step in redressing the hate faced by lesbians, gays and bisexuals. However, in order to realistically combat hate against all disadvantaged groups the implementation of a holistic national strategy is imperative.
EGALE welcomes Bill C-250 as an important step in redressing the hate and persecution faced by lesbians, gays and bisexuals. The promotion of hatred against a disadvantaged group has serious harmful effects both on the direct victim and on the community as a whole. It is important to send a clear message to the Canadian public that homophobic hate mongering will not be tolerated.
Furthermore, the exclusion of other grounds, such as disability, sex, and gender identity, continues leave Canadians who identify in these groups vulnerable to the harm of hate propaganda. Apart from “sexual orientation”, Parliament should seriously consider amending the definition of “identifiable group” to include other disadvantaged groups in society. Finally, affirmative measures to combat hatred and discrimination should be implemented, such as better tracking mechanisms and educational campaigns promoting awareness and equality.
EGALE believes it is crucial for Parliament to confirm that promoting hatred against any disadvantaged group is impermissible, unacceptable and criminal by including at minimum, “sexual orientation” as a ground under “identifiable group”.
(1) Everyone who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. (2) In this section “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.
(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.
(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion or ethnic origin.
(2) Every one who, by communicating statements, other than in private conversation, willfully 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.
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;
(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 towards an identifiable group in Canada.
(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.
(7) In this section,
“communicating” includes communicating by telephone, broadcasting or other audible or visible means;
”identifiable group” has the same meaning as in section 318; “public place” includes any place to which the public have access as of right or by invitation, express or implied;
”statements” includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.
Bill C-14, An Act to amend the Criminal Code (hate propaganda), 1st Session, 37th Parliament, 49-50 Elizabeth II, 2001, House of Commons Canada.
Brown, Lindsay, Prescribing Equality in the Proscription of Hate: The Charter Basis for Including Sexual Orientation to the Prohibition Against Hate Propaganda in Canada, Ottawa: EGALE, (2002) at 3.
R v. Keegstra  3 S.C.R., at 746-747, 758 [hereinafter Keegstra].
Brown, supra note 2 at 20.
Ibid. at 697, 746.
R v. Morgentaler,  1 S.C.R. 30, at 70.
Keegstra, supra note 3 at 756, 769.
Ibid. at 756.
Ibid. 776-779. See also Brown, supra note 2 at 9.
“Discrimination and Violence Encountered by7 Lesbian, Gay and Bisexual New Brunswickers”, New Brunswick Coalition for Human Rights Reform, (1990).
“Proud but Cautious: Homophobic Abuse and Discrimination in Nova Scotia”, Nova Scotia Publich Interest Research Group, (1994).
Ibid. at p. 17.
Ibid. at p. 17.
Law Reform Commission of Canada, “Working Paper 50: Hate Propaganda” (1986), at 33.
Goodman, Lakey, Lashof & Thorne, No Turning Back: Lesbian and Gay Liberation for the Eighties, (1983), at 23-24.
Hall, Elizabeth, Hate Propaganda: The Invisibility of Legal Protections for Lesbian, Gay, Bisexual and Transgendered Communities, Ottawa: EGALE, (2002) at 5.
Granovsky v. Canada  1 S.C.R. 703; Lovelace v. Ontario  1 S.C.R. 950; Eldridge v. British Columbia,  3 S.C.R. 624.
Law v. Canada,  1 S.C.R. 497 at para. 36.
Brown, supra note 3 at 14.
Ibid. at 18.
Ibid. at 19.
Bill C-240, An Act to amend the Criminal Code (hate propaganda – age group), 1st Sess., 34th Parl., 1988 (1st reading 16 December 1988); Bill C-207, An Act to amend the Criminal Code (hate propaganda – age group), 2nd Sess., 34th Parl., 1989 (1st reading 7 April 1989; 2nd reading 28 September 1990); Bill C-223, An Act to amend the Criminal Code (hate propaganda – age group), 3d Sess., 34th Parl., 1991 (1st reading 3 June 1991); Bill C-214, An Act to amend the Criminal Code (hate propaganda – age group), 1st Sess., 35th Parl., 1994 (1st reading 11 February 1994; 2nd reading 15 March 1994).
Bill C-350, An Act to amend the Criminal Code (hate propaganda), 3d Sess., 34th Parl., 1992 (1st reading 1o June 1992; 2d reading 26 November 1992).
Ottawa Police Liaison Committee for the Lesbian, Gay, Bisexual and Transgender Communities, Archives, June 30, 1999.
Ibid. December 10, 2001.
Gary David Comstock, Violence Against Lesbians and Gay Men, New York: Columbia University Press, 1991 at 5.