The Supreme Court of Canada has in previous cases upheld the constitutionality of Criminal Code restrictions on hate speech.Sean Kilpatrick/The Canadian Press
Irwin Cotler is a former minister of justice and attorney-general of Canada who initiated the Mugesera case while in government, and intervened at the Supreme Court in the “Hate Speech Trilogy” of cases as a law professor. Brandon Silver is an international human rights lawyer and director of policy and projects at the Raoul Wallenberg Centre for Human Rights.
Canada is experiencing a tsunami of hate crimes, a tidal wave of terror that is tearing at the foundations of our democracy.
Hate crimes have more than doubled here over the past five years, with nearly 20,000 incidents reported by police. Most of these crimes target Canadians based on their race, religion or sexual orientation. This rapid rise is underpinned by what feels like a culture of impunity surrounding incitement to hate.
Bill C-9, the Combatting Hate Act, makes timely and important changes to the Criminal Code to protect human rights and equality in the face of these growing assaults on our freedom and shared humanity.
History has taught us that the most unspeakable of crimes begin with incitement. The Holocaust did not begin with the gas chambers; it began with words – the stereotyping and dehumanization of Jews – in the same way the killing fields of the genocide against the Tutsis in Rwanda started with radio propaganda calling them “cockroaches.” The Supreme Court of Canada enshrined this principle in law, affirming that Léon Mugesera, who was then living in Quebec, was responsible for participating in the genocide against the Tutsis owing to his hateful speech, and should be deported even if he hadn’t been in Rwanda when the killings occurred.
In the “Hate Speech Trilogy” of Supreme Court cases in 1990 – Keegstra, Taylor and Andrews – the Court upheld the constitutionality of Criminal Code restrictions on hate speech. This was further enshrined and refined by courts in the subsequent decades, always affirming that hate speech can be proscribed in compliance with the Canadian Charter of Rights and Freedoms.
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Not only are hate speech prohibitions not in breach of the Charter, they actually help protect it. Hate is an assault on the inherent dignity of the person, on the equal dignity of all people, on the right of minorities to protection from group-vilifying hate, and on Canada’s international treaty obligations. There is no right to use one’s freedom of expression to infringe upon the rights of others.
The Combatting Hate Act makes a meaningful contribution to protecting Canadians and promoting human rights in the face of rising hate crime. The provisions on hate symbols and the targeting of community institutions are particularly important.
Banning the willful promotion of hatred against an identifiable group by displaying specific Nazi or terrorist hate symbols in public will tackle a leading form of incitement today. These hate symbols represent violence and are anti-democratic in nature. Such expression vilifies and excludes targeted minorities, incites harm against them, and undermines broader human rights norms. Neo-Nazism, and any of the designated terrorist groups, are a danger to Canadians. Their hate symbols send a clear message. A Nazi symbol tells Holocaust survivors they are not safe or equal in Canada and encourages white supremacists to act against them; the Islamic State flag tells Yazidis and minority Muslim survivors of terrorist atrocities, such as the Ahmadiyyas and Ismailis, that they are targets in Canada, and encourages Islamist extremists to act against them. These are hate groups that murder, maim and menace Canadians, and seek to dismantle democracy; that is what their symbols represent.
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Criminalizing the intimidation or the impeding of access to a community institution associated with a minority group, such as a daycare, seniors’ residence, or place of worship, protects the freedoms of vulnerable people. No Canadian, whether a Jewish toddler being dropped off at daycare, a Muslim going to mosque, or an LGTBQ person attending an event at their community centre, should face hateful harassment in their neighbourhoods.
There are always legitimate legal debates surrounding any legislation being proposed. However, saying that one’s constituents cannot express themselves without resorting to promoting hate in Nazi or terrorist symbols, or obstructing access for vulnerable groups to their crucial communal institutions, says much about the nature of their intended expression.
Bill C-9 is a necessary and narrowly tailored response to a massive rise in hate crimes, and a reaffirmation of principles that Canadian courts have upheld for decades. But to truly effectively combat hate crime, legislation must be followed by government leadership. The Prime Minister and his cabinet ministers should make it a habit to visit victims and offer comfort, immediately and unequivocally condemn crimes, and mobilize federal, provincial, and municipal law enforcement and leaders to move together in common cause.
Parliament should pass Bill C-9. But government must exercise leadership beyond it.