Canadian Hate Crime Literature
Academic Papers and Reports
Alphabetically by author's last name
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Bailey, J. (2006). Strategic alliances: The inter-related roles of citizens, industry and government in combating Internet hate. Canadian Issues, 56-59. Retrieved July 23, 2006 from the World Wide Web: http://www.chrc-ccdp.ca/pdf/HateOnInternet_bil.pdf
In this brief article, Jane Bailey focuses on the tools that members of civil society have at their disposal to address the problem of Internet hate speech. The bulk of this paper is structured by five different sections, each dedicated to a discussion of the benefits and limitations of a particular method of combating hate crime. These methods include triggering legal action through criminal investigations, human rights complaints, and/or contract and labour law; implementing filtering technologies or using zoning techniques; educating Internet users by identifying hate speech and collecting statistics; reporting to hotlines; and Internet Service Provider (ISP) self-regulation. Bailey concludes her paper by emphasizing the importance of engaging citizens, citizen coalitions, industry and government in a collaborative, coordinate approach to challenge Internet hate speech.
Bittle, Steven. (2002). Media treatment of hate as an aggravating circumstance for sentencing: the Criminal Code amendment and the Miloszewski case. Canadian Ethnic Studies 34(1), 30-50.
In this article, Bittle provides an in-depth, critical analysis of print media coverage on R. v. Miloszewski. In 1999, Daniel Miloszewski was arrested and convicted for manslaughter after beating and killing Nirmal Singh Gill. During the sentencing of his case, emphasis was placed on subparagraph 718.2(a)(i), which directs judges to consider bias, prejudice, hate motivation as an aggravating circumstance. Due to Miloszewski’s association with a white supremacist, skinhead group known as “White Power”, hate motivation was taken into account on the basis of race. Bittle’s review of this case is placed in the context of media representations. Using two Canadian databases of newspaper items, Bittle employs both quantitative and qualitative analyses to highlight patterns among reports while also commenting on the specific content of those reports. Through such analyses, Bittle makes the assertion that media representations of the case contribute to a narrow understanding of the racism that exists in Canada. To support this claim, he underscores the contradictions in the media’s support for sentencing legislation which denounces hate crimes vis-à-vis their representation of hate crime as the product of a few misguided individuals. By pathologizing the actions of Miloszewski and company in the perpetration of hate crime, Bittle argues that the media neglect the broader, social processes that contribute to a culture of racial hatred and, by extension, endorse softer versions of racism. Concluding this paper, Bitter identifies three main lessons that can be learned from print media coverage on Miloszewski. First, future research must attend the relationship between media and legislation. Second, it must be understood that the law is an inadequate resources for combating complex social problems, such as racism. Finally, it is imperative that criminal justice officials and journalists, as the gatekeepers of information, take leadership in combating systemic racism through improved knowledge and communication.
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Canadian Human Rights Commission & Association for Canadian Studies (2006). Canadian Issues. Retrieved July 23, 2006 from the World Wide Web: http://www.chrc-ccdp.ca/pdf/HateOnInternet_bil.pdf
This edition of Canadian Issues features a collection of papers and speeches presented at a conference regarding the subject of hate on the Internet. The conference, titled A Serious threat: A Conference on Combatting Hate on the Internet and Section 13 of the Canadian Human Rights Act (CHRA), was hosted by the Canadian Human Rights commission (CHRC) and the Association for Canadian Studies in December of 2005. Discussions at the conference centred on the notion of hate and the use of the Internet to propagate hate as a “threat to the social fabric of Canadian society”. Attention is also given to section 13 of the CHRA as an instrument for the CHRC to investigate complaints about hate propaganda on the Internet. Featured speakers and authors in this publication include Mary Gusella, Bernie farber, Russell Juransz, Jane Bailey, Mark Freiman, Monette Maillet, Myron Claridge, Chris Wolf, and Andrea Slane.
Claridge, M. (2006). A criminal law approach to combating hate. Canadian Issues, 93-99. Retrieved July 23, 2006 from the World Wide Web: http://www.chrc-ccdp.ca/pdf/HateOnInternet_bil.pdf
Claridge addresses combating hate on the internet by first explaining the sections of the Criminal Code which pertain to hate, describing how these sections have been applied using examples, and introducing an innovative approach to battle hate crime used in British Columbia. Claridge separates the Criminal Code hate crime provisions into two categories: (1) hate propaganda offences and (2) any other offence motivated by hate, bias, or prejudice. These provisions differ both in the types of offences they encompass and the groups identified as victims of these crimes. Claridge goes on to explain the hate propaganda offences, giving examples of some of the cases that prosecuted under these provisions. The cases also assist in explaining the court’s interpretation of the sections including whether or not proof of actual hatred need be present in order to secure a conviction under these sections. He also differentiates the hate propaganda offences from other hate offences by pointing out that these sections do not specify nearly as many identifiable groups. Claridge also touches on the importance of striking a balance between the free expression and reasonable limits as prescribed by the Charter. Claridge also points out that many hate crimes are not encompassed under the provisions of the Criminal Code, which makes it important to have other means to combat these crimes. British Columbia’s Hate Crime Team is one such approach which has proved to be successful. The Team is a multi-agency unity which included the Criminal Justice Branch, Police Services Branch, Multiculturalism B.C., municipal police and the RCMP provincial representatives. They have established several programs in the province and have trained over 4000 law enforcement personnel on hate and bias crime. The team has proven to be an important tool in the fight against hate crime in British Columbia.
Cohen, J. (2000). More censorship or less discrimination? Sexual orientation hate propaganda in multiple perspectives. McGill Law Journal (46), 69.
In this article, Cohen argues that expanding Canada’s criminal and administrative sanctions against hate promotion to include sexual minorities as a protected group is a necessary first step in fighting against sexual orientation hate propaganda. The author examines the prohibition of sexual orientation hate propaganda from a variety of perspectives: those of the victim, Canadian legislation, international law, other jurisdictions, and the strategic advocate. A legal analysis of Canada’s approach to sexual orientation hate propaganda flows from these multiple perspectives. The author notes that sexual minorities often find themselves fighting against censorship, and thus occupy an ambiguous position in the anti-censorship anti-discrimination debate. However, recent advances in judicial interpretations of the Canadian Charter of Rights and Freedoms, particularly the decision that sexual orientation be read into the prohibited grounds for discrimination under section 15, have impelled sexual minorities to strongly promote an anti-discrimination agenda. Cohen argues that considerable authority for extending Canada’s Criminal Code hate propaganda provisions to include sexual minorities is provided from the recent Supreme Court of Canada decision in Vriend v. Alberta and M. v. H., which read sexual orientation into a provincial human rights statute and extended social support to same-sex couples, and the growing mass of comparative and international law that has extended anti-discrimination to sexual minorities.The article concludes with a discussion of the importance of a holistic approach to advocating this issue, one that includes legal, political and cultural advocacy.
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Farber, B. (2006). The Internet and hate promotion: The 21st century dilemma. Canadian Issues, 12-14. Retrieved July 23, 2006 from the World Wide Web: http://www.chrc-ccdp.ca/pdf/HateOnInternet_bil.pdf
In this brief article, Bernie Farber, the Chief Executive Officer of the Canadian Jewish Congress, discusses the use of the Internet for hate promotion as an ever-expanding problem in Canadian society. Farber then goes on to identify the provisions in Canadian legislation that allow for protection against hate mongers. These include sections 318 and 319 of the Criminal Code of Canada, which identify hate-based offences; section 718.2 of the Criminal Code, which encourages judges to consider as an aggravating circumstances crimes that are motivated by hate, bias, or prejudice; and section 13 of the Canadian Human Rights Act, which provides sanctions against those using technologies (i.e. the Internet) to subject a person(s) to hate. He also acknowledges Canada’s status as the first non-European country to sign the additional protocol on the Convention on Cybercrime. Beyond these protections, Farber emphasizes the responsibility of Canadian Internet service providers to take an active role against hate propaganda on the Internet through self-regulation. Such activism, according to Farber, must be part of a broader, multi-agency approach to resolving the problem of hate on the Internet that involves governments, police services, schools, community groups, and service providers.
Faulkner, E. Canadian Resources on Anti-Gay/Lesbian Violence. LGBTQ Bibliography: Department of Sociology, Brock University Unpublished Document.
The link below provides an extensive list of literature on anti-gay and lesbian violence. It has been made available by Ellen Faulkner, Department of Sociology, Brock University.
Faulkner, E. 2004. “Researching Anti_Gay/Lesbian Violence In Canada: Methodological and Definitional Issues.” International Journal of Comparative Criminology (IJCC). Affiliate Journal of the International Section, ACJS . De Sitter Publications. Willowdale, Ontario. Editors: Shivu Ishwaran and Livy Visano, Department of Sociology, York University 3(2):149-174.
Faulkner’s article challenges the stereotype of gay and lesbian violence discussing the media as only one source that has created a distorted image, scholarly material also contributes to the stereotype. Through a triangular approach, Faulkner combines survey research and interviews, participant observation and content analysis for a reflective and content sensitive approach to assess the prevalence and impact on the victims of gay and lesbian violence. Faulkner challenges four aspects of Harry and Burk’s (1992) definition of gay bashing in the article; the notion that all gay bashers and victims are male, the belief that they mostly kill strangers, the assumption that they kill because of a pathological condition of thrill seeking, and the notion that gay bashing perpetrators are powerless and have contributed to the stereotype. Faulkner argues that it is pointless to conduct research on gay and lesbian violence until the contradictions in typologies, theories and definitions are explored. Stating that all research on gay and lesbian violence has methodological problems Faulkner breaks them down into two categories, qualitative and quantitative research issues. The problems with typologies are that attempts to describe a gay basher and how they go about their business are the major flaws in classifying gay bashing. Faulkner concludes by stating it is imperative to expand the definition of anti-gay and anti-lesbian violence, improve the reliability of information sources and research methodologies, the sharing of research, and eradicating the gay basher stereotype. The changes are essential so that policy decisions and strategies for intervention are to be informed by reliable data. Also, by challenging the media and psychiatric constructions of gay realities it will be possible to move beyond the pathological models. Finally, a challenged analysis of androcentric and radicalized gay bashing is needed to go discover the specificities of women’s and visible minorities’ experiences of heterosexism.
Faulkner, E. 2002. “Comment: Hate Crime In Canada: An Overview of Issues and Data Sources.” (July 2001), By Derek Janhevich (Statistics Canada). International Journal of Comparative Criminology. 2(2): 239_261.
This report comments on Derek Janhevich’s report on Hate Crime in Canada: An Overview of Issues and Data Sources. Faulkner summarizes and discusses the findings of the report and critiques the methodological and theoretical influences which guide it. Faulkner describes the report as “an informative but at times disappointing effort at providing analysis of the first available national estimates on HC (Hate Crime) in Canada. Much more detailed analysis of the data could have been provided” (pg. 242). She then goes onto the interesting information which Janhevich found and what else Janhevich could have included in the report. For example, Faulkner states that much research which is funded by the government is included; however important comparative research on gay and lesbian violence is missing. Faulkner also states that the approaches and gaps in approaches of policy departments across Canada is comprehensive, although it is mentioned that not all departments collect hate crime statistics. It is recommended that a national program be implemented to evaluate existing documentation approaches of hate crime occurrences in Canada. To conclude, Faulkner states that further social justice research is needed in the area of hate crime. The following are some of Faulkner’s suggestions as to why further research is needed; to understand if the information in the 1999 GSS to allow Canadians to understand the extent of hate crime in Canada, which can be done through surveys, and to consider trends which are evolving in the United States and how they collect data. A more contextualized investigation needs to occur regarding the topic of systemic issues that structure hate crime, which could help to complete the research done by Statistics Canada.
Faulkner, E. 2001 “Empowering Victim Advocates: The Community Response to Anti-Gay/Lesbian Violence in Canada.” Critical Criminology: An International Journal, a special theme edition on Criminology, Empowerment and Social Justice. 10(2):123_135.
The focus of this article is to document and critique a model of a community based response to gay/lesbian violence created by The 519 Church Street Community Centre Anti-Violence Programme (The 519). The lack of studies on anti-gay/lesbian hate crime is discussed. American gay and lesbian organizations have documented hate crime since early 80’s, Canadian organizations have not. This is due either to not recognizing the importance or lack of resources to do so. The article discusses the theoretical exclusions of anti-gay/lesbian violence discussing the theories that explain why men choose to attack other men who are gay. There groups who are left out of the traditional definition and study of hate, such as violence against lesbians as well as the compound issues of racism and heterosexism for the ethnically diverse. This exclusion impacts on the work done on anti gay/lesbian violence by anti-violence programs in North America. A survey was completed in Canada regarding the incidents and victim impact of violence against gays and lesbians. The recommendations are discussed in categories; victim advocacy, education and curriculum development, counselling and emergency response, and same-sex partner abuse. There are attempts to move beyond isolated activism and create partnerships, alliances described that have been built to help victims and combat anti gay/lesbian violence. Future theorizing should be concerned with the understanding of how radicalized homophobic and heterosexist violence is continuing and supported, to support research techniques that document hate crime victimizations and the realities that gays and lesbians live through, and to study questions asked by the feminist movement.
Freiman, M. (2006). Litigating hate on the internet. Canadian Issues, 66-71. Retrieved July 23, 2006 from the World Wide Web: http://www.chrc-ccdp.ca/pdf/HateOnInternet_bil.pdf
Freiman examines the utility of section 13 of the Human Rights Act by using the Zundel case to illustrate its strengths as a weapon against hate propaganda. Zundel was brought before the Human Rights Tribunal in violation of section 13 of the Human Rights Act and was eventually successfully prosecuted for the creation and ongoing operation of his Zundelsite. Freiman begins by telling some of his favourite antidotes from the infamous case as Zundel and his lawyer attempted to find loopholes in the seemingly airtight section. Freiman claims that section 13 is conceptually, technically, and legally well grounded which enables it to strike the appropriate balance between competing social and constitutional goals. Freiman provides seven reasons for his assertion which coincide with the seven primary components of section 13. Freiman explains how each of the following components contribute to a holistic approach to fighting hate propaganda: section 13 (1) treats hate propaganda as a discriminatory practice rather than a crime, (2) it makes clear that the target is the person who communicated the message and not the message itself, (3) it requires certainty about who is communicating the hateful messages, (4) it establishes that “communicating telephonically repeatedly” includes hateful messages repeatedly posted on the internet, (5) it establishes constitutional jurisdiction over the communication of hateful messages, (6) it sets out the nature of the harm done by the messages, and (7) it defines all types of discrimination against all groups as unacceptable. These seven parts of section 13 come together to form a complete and all-encompassing tool for fighting hate propaganda as evidenced by its ability to successfully prosecute one of Canada’s most notorious hate mongers, Ernst Zundel.
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Gold, N. (2004). Sexism and antisemitism as experienced by Canadian Jewish women: Results of a national study. Women’s Studies International Forum, 27(1), 55-74.
Feminists have rarely acknowledged the diversity of Jewish women in the same ways they have recognized the diversity of women from other ethnic backgrounds. Gold attempts to rectify this disparity by conducting a representative nation-wide study of Jewish female Canadians. Specifically, Gold seeks to establish the extent of Jewish women’s experiences with sexism and anti-Semitism, the similarities and differences between these types of experiences, and the impact these experiences have on their mental health. Phone interviews were conducted with 364 Canadian Jewish women in September 2000. The women were asked a total of 75 questions pertaining to anti-Semitism and sexism and were later mailed the Beck Depression Inventory (BDI) that was completed and returned. Quantitative statistical analyses were performed using the results of both the phone interview and the BDI. Many of the interview questions focused on discriminatory practices and attitudes, but the survey also touched on their experiences with hate crimes such as vandalism and assault which was perceived to have taken place simply by virtue of them being Jewish. The survey revealed that only about 10% of the women interviewed had experienced anti-Semitic hate crimes. There were no survey questions related to hate crime on the basis of gender. Concluding the study, Gold reveals evidence of a dual oppression which can often result in depression. Gold also concludes that there are certain characteristics that can aggravate or mitigate sexist and anti-Semitic attitudes towards them; education, household income, and geographical location can contribute to women’s negative experiences.
Gusella, M. (2006). A serious threat. Canadian Issues, 4-7. Retrieved July 23, 2006 from the World Wide Web: http://www.chrc-ccdp.ca/pdf/HateOnInternet_bil.pdf
This document contains the opening address of Mary Gusella, former Chief Commissioner of the Canadian Human Rights Commission (CHRC), at the Hate on the Internet Conference. In her address, Gusella begins with a brief review of key historical incidents in the propagation of hate, involving John Ross Taylor as the leader of a white-supremacist Neo-Nazi group in the first telephonic hate message case and Ernst Zundel in the first Internet hate case. Both of these cases are reviewed for the purposes of discussing the use of Section 13 of the Canadian Human Rights Act as a tool for responding to hate propaganda. Gusella also outlines new initiatives of the CHRC that will facilitate the processing of section 13 complaints, including, among other things, the creation of a section 13 complaint team, ongoing communication with Internet service providers, and the development of relationships the Media Awareness Network. Although Gusella acknowledges the limitations of section 13, she emphasizes its significance as a symbol of social solidarity with the targets of hatred and bigotry. Concluding her opening address, Gusella emphasizes the two objectives of the conference including (1) to create awareness of section 13 and (2) to facilitate the exchange of knowledge among experts by providing a networking opportunity with the conference.
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Helly, D. (2004). Are Muslims discriminated against in Canada since September 2001? Canadian Ethnic Studies, 36(1), 24.
Helly delves into the lives of Arab and Muslim communities by exploring various aspects of their lives pre and post September 11, 2001 including employment trends, access to education, limitations on freedom and a subsequent rise in hate crime. Helly begins by clearly defining several forms of discrimination including systemic, institutionalized, usual, and voluntary racism. She also defines the term hate crime and highlights the differences in the nature and extent of hate crime in several countries including Canada. Helly qualifies these differences by touching on the inaccuracy of hate crime statistics in Canada, by noting the nature of these crimes ensures underreporting, in addition to the absence of a national definition and a consistent method of classification among police services. The Muslim Canadian experience post September 11 witnessed an initial rise in hate crime which subsided in 2002. Hate crimes were, for the most part, limited to verbal insults, but were extenuated by ethnic profiling by police, inequitable access to the labour market, and negative coverage in the media which aggravated negative public attitudes towards Muslims. However, Helly does highlight some positive steps that have been made since September 11, 2001; many Canadian communities have attempted to re-establish bonds between the Muslim community and municipal authorities. Furthermore, some political parties, such as the New Democrat Party (NDP), took interest in the inclusion of the Muslim community following the attacks.
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Juriansz, R. (2006). Combating hate and preserving free speech: Where is the line? Canadian Issues, 18-35. Retrieved July 23, 2006 from the World Wide Web: http://www.chrc-ccdp.ca/pdf/HateOnInternet_bil.pdf
The Honourable Justice Juriansz delves into the much debated issue of the right to free expression and the right to be protected from hateful speech and action. Juriansz begins by discussing the crucial importance of free speech in a democratic society, citing extreme American examples of the seemingly absolute right to free expression offered in the First Amendment. Unlike the American experience, most other nations have established that the “careful restriction” of some forms of speech is both desirable and necessary. Juriansz exemplifies this by referring to the numerous signatories of international treaties, which denounce racism and hate such as the International Convention on the Elimination of All Forms of Racial Discrimination. The states that endorse these types of treaties often have legislation which is consistent with them. Juriansz also explores the recently amended (January 2006) British legislation that limits free speech. Critics have suggested that the new legislation takes on the characteristics of American legislation by making it virtually impossible to successfully prosecute individuals for expressions of hate. Juariansz goes on to discuss the Canadian debate in the context of section 13 of the Canadian Human Rights Act whose provisions focus on “telephonic communication.” This section has established jurisdiction over hate on the internet as a type of “telephonic communication.” This section has also deemed that certain expressions, such as violence, are not protected under the right to freely express oneself. Juriansz also briefly looks at the challenges to the Criminal Code, citing popular cases like R. v. Zundel and R. v. Keegstra. He concludes by suggesting that the balance between freedom of expression and censorship of hate can be found by using the Charter and its interpretation and application by the Supreme Court of Canada.
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Maillett, M. (2006). Hate message complaints and human rights tribunal hearings. Canadian Issues, 78-84. Retrieved July 23, 2006 from the World Wide Web: http://www.chrc-ccdp.ca/pdf/HateOnInternet_bil.pdf
In this paper, Maillett discusses the role of section 13 of the Canadian Human Rights Act in combating hate (particularly on the internet). The Canadian Human Rights Commission has identified this section of the legislation as the primary means to curb the widespread dissemination of hateful material on the internet. The Commission has further identified the Tribunal hearings as the primary means of preventing the continuing distribution of hate and to protect its victims from further harm. Before describing the utility of The Human Rights Act and its Tribunals, Maillett first briefly illustrates the evolution of hate propaganda from pamphlets in the 1970s to widespread hate that spans across borders on the internet. Maillett also explains the beginnings of legislation, taking the stance that limiting the communication of hate does not necessarily run counter to the principles of a free and democratic society as expressed in the Charter. Maillett goes on to detail why the Canadian Human Rights Act is a great tool for combating hate. The CHRA does not require proof beyond a reasonable doubt but rather proof based on a balance of probabilities, it has a broad interpretation, and it is accessible to ordinary citizens. But Maillett also point out several drawbacks to legislation and the Tribunals; they often re-victimize the complainants, hearings are transformed to focus on the behaviour of the complainant rather than the respondent, and often respondents abuse the process which depletes the Tribunal and the Commission’s already limited resources.
McNamara, L. (1994). Criminalising racial hatred: Learning from the Canadian experience. Australian Journal of Human Rights. Retrieved on June 29, 2006, from the World Wide Web: http://www.austlii.edu.au/au/journals/AJHR/1994/13.html
This article from the Australian Journal of Human Rights uses Canadian legislation and jurisprudence as a point of reference to inform Australia’s formal response to hate activity. In commenting on hate crime, McNamara identifies and describes key pieces of anti-hate legislation in Canada, including national laws, such as the Criminal Code and Human Rights Act (1977), as well as provincial laws, such as the Saskatchewan Human Rights Code and the Ontario Human Rights Code – all of which attest to the criminalization model of Canada with respect to hate crime. McNamara also dedicates special attention to Canadian jurisprudence on hate crime, as dealt with in R. v. Keegstra at the Supreme Court level. In doing so, McNamara identifies the emerging debate between proponents of anti-hate legislation vis-à-vis defenders of the constitutionally recognized freedom of speech. In reference to this debate, McNamara is critical of placing hate crime in the context of rights discourse and states that racial vilification laws are counterproductive when they individualize and marginalize hate crime as the action of the person being prosecuted rather than acknowledging its roots in the broader social, historical context. In offering this critique McNamara supports the current conciliation model used in New South Wales under section 20(C) of the Anti-Discrimination Act (1977) as an instrument for dealing with a wider array of hate activity while also catering to the needs of target groups. Ultimately, McNamara suggests that the priorities of anti-vilification laws need to be re-defined so as to emphasize an assessment of the harm caused to target groups by hate crime.
Mock, K. (YEAR). “Recognizing and reacting to hate crime in Canada today”. Retrieved from June 18, 2006 from the World Wide Web: http://www.crr.ca/EN/Publications/EducationalTools/RecognizingandReacting.htm
This article focuses on the problem of hate in contemporary Canada and the urgent need to react against hate crimes. In the aftermath of the September 11, 2001 terrorist attacks, Mock acknowledges the dramatic increase in the number of reported hate crimes, especially against Muslim, Arab and South Asian Canadians, while also taking into account the reality that the vast majority of hate crimes go unreported. In calling attention to this problem, Mock emphasizes the importance of understanding what hate crime is and knowing how to respond to it as stepping stones in the fight against hate and intolerance. Mock begins this process by reviewing key terms in hate crime discourse, including the definitions of hate crime and hate propaganda. She further explains the motivating factors behind hate crime, particularly as they relate to prejudice, stereotyping and scapegoating, along with their consequences for targeted groups, including feelings of fear, vulnerability, and isolation. Mock concludes the article with a description of a three-pronged approach for reacting to hate crime. First, protection can be found in existing laws such as the Criminal Code, the Convention on the Elimination of All Forms of Racial Discrimination, the Canadian Human Rights Act, the Canadian Bill of Rights (1960), and the Charter of Rights and Freedom (1982). Second, prevention can occur through public education and awareness campaigns, such as those surrounding the International day for the Elimination of Racial Discrimination on March 21st or the International Human Rights Day on December 10th. Finally, partnerships are necessary to ensure that a coordinated community response is utilized against all forms of hatred in a manner that reduces fear and promotes solidarity.
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Newman, S.L. (2002). Liberty, community, and censorship: Hate speech and freedom of expression in Canada and the United States. American Review of Canadian Studies, 32(3), 369.
In this article, Newman compares issues relating to hate speech and freedom of expression in Canada and the United States with particular focus on two parallel cases decided within two years of one another concerning this issue, that of R.A.V. v. St. Paul (1992), decided in the Supreme Court of the United States, and R. v. Keegstra (1990), decided in the Supreme Court of Canada. The article contends that the U.S. Supreme Court and the Supreme Court of Canada offered completely opposite answers to the question of the constitutionality of the suppression of hate speech in these two cases. In R.A.V. v. St. Paul, the U.S. Supreme Court disallowed a municipal ordinance making it a crime to display symbols, such as burning crosses or Nazi swastika, that are known to arouse anger, alarm or resentment on the basis of race, color, creed, religion, or gender. In R. v. Keegstra, the Supreme Court of Canada upheld the constitutionality of s. 319(2) of the Criminal Code which criminalized the willful promotion of hatred against any section of the public distinguished by color, race, religion or ethnic origin. In comparing these two cases, the author attempts to determine why the American and Canadian high courts disagree over the constitutional status of hate speech.
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Ross, J. I. (1994). Hate crime in Canada: Growing pains with new legislation. In M. S. Hamm’s Hate crime: International perspectives on causes and control. Cincinnati: Anderson Publishing Co.
Ross provides a historical analysis of hate crime legislation in Canada including well-publicized hate crimes and court cases. The history of hate crime legislation begins in 1965 when the “Cohen Committee” was created to study and report on the distribution of hate propaganda in Canada. Ross tracks the recommendations of the Cohen Committee and their eventual incorporation into the Criminal Code of Canada in 1970. At this time, it became illegal to incite or promote hatred or genocide against an identifiable racial, ethnic, or religious group. Ross continues by outlining the six key arguments against the new legislation, many charging that other sections of the Criminal Code already encompass hate crimes. Ross criticizes the utility of the legislation by pointing to its rare usage and the alternative means available to address hate crimes. For example in 1977, the Canadian Human Rights Act was enacted along with similar provincial human rights codes and enforcing bodies. Also, it was extremely difficult to charge a person for a hate crime because of the wording of the legislation. It was proposed that the word “willfully” be removed from the definition of the offence to place the burden of proof on the offender, thus making prosecutors more likely to use the charge and to be successful. Another challenge to the legislation came in 1982 when the Canadian Charter of Rights and Freedoms was entrenched into the Constitution. But in 1990 the issue was resolved when the Supreme Court of Canada decided that freedom of expression did not include the right to promote hatred. In, 1991 the definition of identifiable groups was expanded from colour, race, religion, or ethnic origin to include sex and sexual orientation. Ross goes on to briefly review the cases where hate crime charges were filed, including the well-known Keegstra case. In the cases where charges could have been filed but were not, Ross addresses Zundel’s activities as an active-Holocaust denier (before charges were brought against him). Ross concludes by looking to the future and the barriers Canada will face as immigration continues and hate-groups expand.
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Slane, A. (2006). Hate speech, public communication and emerging communications technologies. Canadian Issues, 118-121. Retrieved July 23, 2006 from the World Wide Web: http://www.chrc-ccdp.ca/pdf/HateOnInternet_bil.pdf
Slane analyzes the current utility of section 13 of the Canadian Human Rights Act by tracing its development since its legislation. Originally designed to deal with the “dial a message” practice of the Western Guard Party, section 13 has proven to be remarkably adaptable to the evolving means of communication. Slane describes four principles entrenched in this section that have allowed it to be so malleable. First, section 13 requires the repetition of hate messages to the public, which includes one to one communication. The section also holds the originator of the message responsible, regardless of whether or not the recipient had to actively do something to access it. Third, the section implies that if there are publicly available means of finding a message it is considered public communication. The final principle states that although some messages may be posted on member only sites, if membership is open to the public, the messages are public under section 13. Slane suggests that these four principles will allow section 13 to be applied to blogs, hate spam, secure websites, podcasts, and peer-to-peer file sharing. Slane concludes that because of the versatility that section 13 has shown, it will be able to accommodate communication technologies in the future.
Steinberg, A., Brooks, J., & Remtulla, T. (2003). Youth hate crimes: Identification, prevention, and intervention. The American Journal of Psychiatry, 160(5), 979.
This article offers a review of current research related to youth hate crime. The authors’ objective is to provide a basis for developing an understanding of this social problem to assist in the advancement of prevention, early identification, and intervention methods to be utilized by mental health professionals. A review of the literature established that most hate crimes are committed by an individual male or a small group of males with no affiliations to organized hate groups. Limited information about the factors that cause hatred was found. Although a variety of strategies have been employed to prevent youth hate crime or intervene when it becomes apparent, evaluation of these methods has been minimal. The article notes that there is a dearth of literature available to guide those in the mental health profession in the identification, evaluation, and treatment of offenders. The authors conclude with the recommendations that databases of youth hate crime be developed, and the success of preventative, educational, and alternative sentencing programs be evaluated.
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Wortley, S. (2003). Hidden intersections: Research on race, crime, and criminal justice in Canada. Canadian Ethnic Studies 35(3), 99.
This article has a broad focus on the overlapping issues of race, crime, and the criminal justice system in Canada. In commenting on these issues, Wortley emphasizes the importance of understanding the intersections of identities; that is, the impact of race in conjunction with factors such as social class, gender, age, immigration status, religion, language, and sexual orientation. These intersections are discussed within the context of four main topic areas in criminology, including (1) criminal offending; (2) bias within the justice system; (3) victimization; and (4) access to justice.
In reference to the main subject of hate crime, the topic area of most interest is victimization. In this section, Wortley asserts that Canada has paid little attention to hate crime as an important issue in criminal justice. Wortley is critical of such inattention, referring to police data which identify racial, female minorities as the most common victims of hate crime and other research that highlights the vulnerabilities of gay and lesbian racial minorities. Wortley also identifies several important questions such as: What proportion of racial minorities have been the victim of hate crimes? Who are the offenders in hate crime cases Will enhanced sentencing legislation reduce the incidence of hate crimes in Canada?” Wortley does not purport to have the answers to any of these questions but rather poses them as questions that need to be placed on Canada’s research agenda. Additionally, he emphasizes the importance of understanding secondary victimization, particularly the feelings of fear and reduced security that may be aroused among the public from exposure to victimization. Concluding this paper, Wortley asserts that Canadian research, including race-crime statistics, must be available in order to understand the relationship between race, crime, and the criminal justice system and develop corresponding policies.
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