Wired News
Monday, November 30, 1998

Crimes Canada Loves to Hate

Canada may make it a crime to keep hate propaganda on a hard drive,
putting people who fight racism and hate crimes at risk.

by Matt Friedman, mwf@netcom.ca

MONTREAL -- New plans by the Canadian government to crack down on hate crimes have civil libertarians up in arms. Even opponents of hate crimes are diving for cover.

Recommendations issued last week by the Federal, Provincial, and Territorial Working Group on Diversity, Equality, and Justice would broaden Canada's existing laws against hate crimes, making it illegal to possess material "for the purpose of distribution to promote hate".

The proposed amendments to the Criminal Code of Canada would also expand the law to apply to hate crimes based on age, gender, or mental disability. The reforms would prevent a criminal defendant in a hate-crime trial -- a neo-Nazi who denied that the Holocaust occurred, for example -- from claiming the freedom to disseminate material, including hate -crime propaganda, that a defendant believed to be true.

Ujjal Dosanjh, attorney general of British Columbia and a strong proponent of the task force wanted to create new legislation "designed particularly to combat hate propaganda on the Internet".

The attorney general's office has campaigned for tougher laws since a highly publicized incident involving a racist Web site earned the town of Oliver, British Columbia, a reputation as the "hate capital of Canada".

Dosanjh said the incident demonstrated the need for stronger laws against hate propagandists.

"We need an offense that's easier to prove", Dosanjh said. "This amendment will create that offense. Once you intend to promote hate -- that's where the line is drawn."

His reasoning doesn't sit well with civil libertarians, who warn that existing hate-crime statutes are the only laws on the books that permit prosecution for holding unpopular opinions.

"The government is going in the wrong direction", said Alan Borovoy, general counsel for the Canadian Civil Liberties Association. "It should be repealing, or at least narrowing, the anti-hate legislation. It's already too broad an enactment."

The proposals continue a trend of eroding Canadian civil liberties, Borovoy said. "Ever since the government embarked on a course of trying to outlaw expressions of hatred, it's shown that there is a slippery slope. One thing has led to another."

Electronic Frontier Canada, an information-rights advocacy group, agreed. "The proposals reflect the fears in certain constituencies represented by some of the participants in the working group", said the group's vice president, Richard Rosenberg. "There seems to be a notion that you can curtail free speech and society will somehow be better for it."

The Canadian Jewish Congress (CJC) has praised the reforms, however.

"The law isn't final, but with the wide-ranging approval we've gotten, it's pretty close", said Bernie Farber, the CJC's national director of community relations. "We have a concern that the Net needs some manner of legislation to ensure that it's not used by hatemongers to promote hate."

Ken McVay, who as president of the Nizkor Project, is one of Canada's most prominent opponents to racism, has a more immediate concern. Nizkor maintains one of the world's largest online archives of anti-Semitic material, which is used to fight ignorance and expose extremism.

"There are neo-Nazis who point to URLs on Nizkor", McVay said. "That's probably the clearest example of how stupid this is. Is it 'possession with intent' if the propaganda resides on my servers and some neo-Nazi makes a link to it?"

Elissa Leiff, senior counsel in the Department of Justice's Criminal Law Policy Section, dismissed any suggestion that activists like McVay might be burned by the new laws, citing the proposed law's requirement of an "intent to promote hate".

"It's so hypocritical", McVay replied. "If an idea is so dangerous in and of itself that you have to legislate against it, then the whole question of intent is irrelevant. If it's dangerous it's dangerous whether it's on my site or [white supremacist] Tom Metzger's."

For supporters of the proposals, however, the possession offense is just a logical extension of the hate laws already on the books.

"We should be dealing with the most extreme cases, and I'm not sure these proposals differ from existing laws in that respect", Farber said. "It remains to be seen how these proposals will be translated into the language of law, though. There are some areas that have to be clarified when the law is developed."

Leiff said it's up to the Department of Justice to phrase the amendments in such a way that they don't violate the Canadian Charter of Rights and Freedoms, and to present them to Parliament for debate. She said that was likely to happen sometime next year, and that she had little doubt that the amendments will become law.

"It's fairly well thought-out to date, and it has the support of all the attorneys general", Leiff said. "I'm sure the legislation will pass."

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