Cases

A

Abrams v. North Shore Free Press Ltd. and Collins (No. 3) (1999), 33 C.H.R.R. D/435 (B.C. Tribunal)

In this case, the Complainant, Harry Abrams, claimed that the Respondents, North Shore Free Press Ltd. and Doug Collins, published or caused to be published articles that discriminate against Jewish persons and are likely to expose those persons to hatred or contempt on the basis of race, religion and ancestry, contrary to Section 2 of the British Columbia Human Rights Act, S.B.C. 1984, c. 22, now Section 7 of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210. In particular, he alleged “that the continual barrage of articles written by Mr. Doug Collins promoting his view on Holocaust revisionism and Jewish conspiracies, have a cumulative affect of promoting hatred and contempt towards Jewish people.” The Respondents countered that Section 2 of the British Columbia Human Rights Act violates Section 2 of the Canadian Charter of Rights and Freedoms. The tribunal decided there was sufficient evidence to rule in favour of the complainant. Collins and the North Shore News were ordered to cease publishing statements that are likely to expose Jewish persons to hatred and contempt and refrain from committing the same or similar contravention, and pay a fine of $2,000 to the Complainant as compensation for the injury they had caused to his dignity and self respect.

C

Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626

This case focuses on an injunction given to Tony McAleer, a member of the Canadian Liberty Net. McAleer could no longer make racist phone messages available to the public until the Canadian Human Rights Commission was able to rule its final order. This ruling was regarding whether the messages were a breach of section 13 (1) of the Canadian Human Rights Act. McAleer breached the injunction when he set up a phone system in the United States stating the same racial content that was on the previous one. There were two rulings made by the Federal Court of Appeal: it affirmed the finding of contempt, but it set aside the injunction made on the grounds that the Trial Division that allowed for it had no jurisdiction to do so.

Canada (Human rights commission) v. Taylor, [1990] 3 S.C.R. 892

The focus of this case was to determine whether a ruling made to prevent hate messages present on a Toronto telephone number was constitutional. The ruling prevented the phone service from operating because it was discriminatory under section 13 (1) of the Canadian Human Rights Act. The argument made by the appellant was that section 13 (1) of the Canadian Human Rights Act violated section 2 (b) of the Canadian Charter of Rights and Freedoms. The court ruled to dismiss the appeal, and that section 13 (1) of the Canadian Human Rights Act is constitutional.

Canadian Jewish Congress v. North Shore Free Press Ltd. and Collins (No. 7) (1997), 30 C.H.R.R. D/5 (B.C. Tribunal)

In this case, the Complainant, Canadian Jewish Congress, alleged that the Respondents, North Shore Free Press Ltd. and Collins, published or caused to be published an article, entitled Hollywood Propaganda, on March 9, 1994, which discriminated against Jewish persons and was likely to expose those persons to hatred or contempt on the basis of their race, religion and ancestry, contrary to Section 2(1) of the British Columbia Human Rights Act, now Section 7(1) of the British Columbia Human Rights Code. The Respondents countered that Section 2 of the British Columbia Human Rights Act, now Section 7 of the British Columbia Human Rights Code, infringed on Section 2(b) of the Canadian Charter of Rights and Freedoms and that the Charter protected the right to express the opinions contained in the article. The Tribunal ruled that Section 7(1) of the British Columbia Human Rights Code was constitutional. It did contravene Section 2(b) of the Charter, yet was saved by Section 1 of the Charter as being demonstrably justified in a free and democratic society. It was noted that “the publication in issue is likely to make it more acceptable for others to express hatred or contempt against Jewish people because of their race, religion or ancestry, but that it does not itself express hatred or contempt.” The Tribunal ruled that the complaint was unjustified as the “content and tone of the column did not fall within the scope of prohibition in Section 7(1).” The complaint against the Respondents, North Shore Free Press and Collins, was dismissed.

K

Khaki, Elterman, Gill & Canadian Human Rights Commission v. Canadian Liberty Net (1993), 22 C.H.R.R. D/347

In this case, the Complainants, Khaki, Elterman, Gill and Canadian Human Rights Commission claimed that the Respondents, Derek J. Peterson and the Canadian Liberty Net, discriminated against Jewish and non-white persons on the grounds of national or ethnic origin, race, color and religion, by causing to be communicated telephone messages which exposed these groups to hatred and contempt, in violation of Section 13(1) of the Canadian Human Rights Act. On December 11, 1991, telephone number 604.266.9642 provided a menu of messages claiming that the Holocaust did not occur, that a “kosher” tax of hundreds of millions of dollars is being levied on consumers, that non-white “aliens” are importing crime and other social problems, as well as a number of other messages exposing Jewish and non-white people to hatred or contempt. The Respondents countered that their right to convey such messages is protected under Section 1 of the Canadian Charter of Rights and Freedoms. The Human Rights Tribunal found that the Respondents violated Section 13(1) of the Canadian Human Rights Act. The Tribunal ordered that the Respondents cease communicating telephonically messages which are likely to expose persons to contempt or hatred on the basis of race, color, national or ethnic origin and religion.

M

Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100

The focus of this case is whether or not M, an active member of a hard-line Hutu political party, could be deported back to Rwanda on the grounds of a speech he had made indicating murder, genocide, hatred, and a crime against humanity. An adjudicator concluded that the allegations were valid and issued a deportation order against M. The Immigration and Refugee Board (Appeal Division) upheld this decision. The Federal Court — Trial Division dismissed the application for judicial review for the words in his speech indicating murder, genocide and hatred, but allowed it for the crime against humanity. The Federal Court of Appeal reversed findings of fact made by the Immigration and Refugee Board, finding the allegations against M to be unsupported, and set aside the motion for deportation. The Supreme Court ruled the deportation order was valid and therefore should be restored.

N

Nealy et al. v. Johnston et al. (1989), 10 C.H.R.R. D/6450 (C.H.R.T.)

In this case, the Complainants claimed that Randy Johnston, Terry Long and the Church of Jesus Christ Christian-Aryan Nations acted in concert to communicate telephonically or caused to be so communicated, recorded telephone messages that were likely to expose persons to hatred or contempt by reason of the fact that those persons are identifiable on the basis of race, color, religion or national origin, contrary to Section 13(1) of the Canadian Human Rights Act. The Respondents countered that their right to voice such messages is protected under Section 2(b) of the Canadian Charter of Rights and Freedoms. The Canadian Human Rights Tribunal ruled that the Respondents did indeed violate Section 13(1). Further, although Section 13(1) of the Canadian Human Rights Act was found to represent an infringement of Section 2(b) of the Charter. The Tribunal ruled it was a justifiable limitation on freedom of expression relative to Section 1 of the Charter. The Tribunal ordered the Respondents to cease the discriminatory practice of communicating telephonically, or causing to be so communicated, matters that are likely to expose a person or persons to hatred or contempt by reason that that person or those persons are identifiable on the basis of race, national or ethnic origin, colour or religion.

R

R. v. Andrews, [1990] 3 S.C.R. 870

Andrews, a leader of the Nationalist Party of Canada, was charged under section 319 (2) of the Canadian Criminal Code for the wilful promotion of hatred against and identifiable group. Both A and S, the secretary of the Nationalist Party of Canada, were members of the central committee which was responsible for the publication of the Nationalist Reporter, which promoted white supremacy. They were both convicted; this was upheld by the Court of Appeal. The Supreme Court dismissed the appeal on the grounds that the sections under the Criminal Code are constitutional.

R v Bissonnette, [2019] QJ No 758, 2019 QCCS 354, [2019] JQ no 758

"Sentencing of Bissonnette, who pleaded guilty to six counts of first-degree murder and six counts of attempted murder. Bissonnette, armed with a semi-automatic rifle and a pistol, entered a mosque and fired at the worshippers present there. He murdered six people, inflicted serious bodily harm on five others, and attempted to kill numerous other worshippers. The Prosecution argued that the crimes committed by Bissonnette were of unprecedented gravity in Canadian legal history. They were premeditated and planned for a long time, and then perpetrated resolutely and in cold blood, in a place of worship. The crimes were motivated by bias, prejudice and hate with regard to Muslims. The Prosecution suggested that the Court sentence Bissonnette, for each of the first six counts, to life imprisonment, with parole eligibility subject to serving at least 25 years of the sentence. These six ineligibility periods should be served consecutively, such that Bissonnette would not become eligible for parole until he has served 150 years in prison.

The Defence challenged the constitutionality of s. 745.51 Cr. C. and argued that this legislative provision infringed the rights guaranteed by s. 12 and s. 7 of the Canadian Charter of Rights and Freedoms. Any period of ineligibility for parole that was equal to or greater than 50 years violated the constitutional standard set out in s. 12. Consequently, the Prosecution's suggestion to impose an ineligibility period of 150 years on Bissonnette would bring the administration of justice into disrepute and went against human dignity. Consequently, the parole ineligibility periods of 25 years for the first six counts should be served concurrently. The Attorney General of Quebec submitted that Bissonnette did not show that s. 745.51 Cr. C. infringed s. 12 of the Charter. The neuropsychological assessment conducted showed that Bissonnette had pervasive mental health issues, including a non-specific anxiety disorder, obsessive-compulsive disorders and hypochondria... Parole ineligibility set at 40 years." (via Lexus Advance Quicklaw)

R v JS, [2003] BCJ No 2877, 2003 BCPC 442

"JS and some other youths attacked a gay man in a park and beat him to death. JS was intoxicated at the time. He testified that he withdrew prior to the end of the attack. JS had no prior record. He confessed to the offence over a year after the incident... JS was sentenced to a custody and supervision order for three years, two-thirds of which was to be served in closed custody. This was a serious violent offence. The beating constituted a hate crime." (via Lexus Advance Quicklaw)

R. v. Keegstra, [1990] 3 S.C.R. 697

Keegstra was a high school teacher in Alberta. He had been communicating anti-Semitic statements to his students. There were a number of sections of the Criminal Code and Canadian Charter of Rights and Freedoms that were tested in this case. Keegstra was charged under s. 319 (2) of the Criminal Code for wilfully promoting hatred against an identifiable group. Keegstra had applied prior to his trial to the Court of Queen’s Bench for an order to repeal the charge because 319(2) of the Code violated Keegstra’s freedom of expression guaranteed under s. 2 (b) of the Charter. The court dismissed the application. Keegstra argued that the Code violated s. 11 (d) of the Charter, which outlined the presumption of innocence; this was disallowed by the Court as well. Section 319(3)(a) allows the defence of “truth” to the wilful promotion of hatred but only after a balance of probabilities is communicated through statements. Keegstra was tried and convicted. The Court of Appeal ruled that ss. 319(2) and 319(3)(a) of the Code did infringe on ss. 2(b) and 11(d) of the Charter and that it was not justifiable under s. 1 of the Charter. The Supreme Court allowed the appeal, stating that the sections in the Criminal Code are constitutional.

R. v. Keegstra, [1995] 2 S.C.R. 381

In this case, the Crown appealed to the Supreme Court under s. 619(1)(a) of the Criminal Code. Keegstra filed an application for leave to appeal, which contained three grounds. One was a constitutional issue. The Crown filed a motion to repeal Keegstra’s application because the Court lacks the jurisdiction to hear the appeal on the issues that have been raised. Both the Crown’s motion to cancel the application for leave to appeal, as well as Keegstra’s application for leave to appeal, were dismissed.

R. v. Keegstra, [1996] 1 S.C.R. 458

This is an appeal from a judgement made in the Alberta Court of Appeal. The Supreme Court agreed with the decision made in the 1990 case against Keegstra. It found that the conviction should be restored and that section 319(3)(a) of the Criminal Code of Canada does infringe on section 11(d) of the Charter; however, this infringement is justified under section 1 of the Charter.

R. v. Krymowski, 2005 SCC 7, [2005] 1 S.C.R. 101

Krymowski was charged under s. 319 (2) of the Criminal Code for wilful promotion of hatred against an identifiable group. He communicated statements (including written statements) against the Roma. The defence accepted that the Roma are an identifiable group; however, they stated that the demonstrations were directed against “gypsies” and there is not evidence that they are the same as the Roma. The Crown did not prove an essential element of the offence and the trial judge acquitted the accused. The Crown appealed to the summary conviction appeal court and the Court of Appeal, both of which were dismissed. The Supreme Court set aside both appeals and new trials were ordered. It was ruled that it was not necessary for the Crown to prove that the “gypsies” and Roma are the same and the trial judge focused too much on the statement.

R. v. Harding, 2001 CanLII 28036 (ON SC), [2001] OJ No 325 (QL)

"The accused was convicted of wilful promotion of hatred contrary to s. 319(2) of the Criminal Code. He expressed the views, in pamphlets and a telephone message, that Muslims, as a group, are dangerous people, capable of acts of violent terrorism and cruelty; that they pose a threat to other faiths and that it is the objective of Canadian Muslims to overtake the country.

The trial judge found that the accused wilfully promoted hatred or was at least wilfully blind to the fact that the promotion of hatred was a substantially certain consequence of his acts. The trial judge also held that the defence in s. 319(3)(b) of the Code, which entitles an accused to an acquittal where it is established that the accused, in good faith, expressed or attempted to establish by argument an opinion on a religious subject, was not applicable. The trial judge found that the intermingling of references to atrocities being committed by Muslim terrorists abroad with the accused's religious opinions, coupled with his statements that all Muslims in Canada are the same as those committing the atrocities, was intended to convey a message above and beyond religious opinion: that is, that Muslims in Canada are dangerous and are to be feared.

The accused appealed, arguing that wilful blindness falls short of the strict mens rea requirements that are necessary in order for the limits on freedom of speech in s. 319(2) to be justified under s. 1 of the Canadian Charter of Rights and Freedoms; and that the trial judge erred in interpreting the defence in s. 319(3)(b) narrowly. Held, the appeal should be dismissed." (via case decision)

R v Mackenzie, [2016] AJ No 746, 2016 ABPC

"Sentencing of the 28-year-old offender who pled guilty to mischief, breach of probation and incitement of hatred. The offender spray-painted on public transit property and parked private vehicles various statements calling for the killing or bodily harm of Syrians. The monetary damage to the city property was estimated at $20,000. In a second incident, the offender entered a gas bar and threw down commercial displays causing $500 damage. The offender had a previous criminal record that included convictions for mischief. He had a long history of substance abuse and mental health difficulties. He had been evicted from several home placements due to negative behavior. He had a sporadic work record and currently received assured income for the severely handicapped due to Asperger's Disorder. He had also been diagnosed with schizophrenia and antisocial personality disorder. He was rated at a very high risk to re-offend. He had been in pre-sentence custody for 225 days... The offender was sentenced to three days' imprisonment and two years' probation." (via Lexus Advance Quicklaw)

R. v. Miloszewski et al, [1999] B.C.J. No. 2710

Five neo-Nazis were confronted by an elderly caretaker while attempting to vandalize a Sikh temple and attacked him, leading to death from his injuries. The attack was later admitted to as a means of entry into a skinhead organization. The attackers were fond guilty of manslaughter motivated by hate (under s. 718.2(a)(i) of the Criminal Code) and sentenced to 18 years for the lead attacker and 15 years for the others, largely due to the fear and trauma inflicted on the local Sikh community.

R v Porco, [2017] OJ No 5252, 2017 ONCJ 676

"Porco scrawled "No More Muslins" on a bench in a bus shelter. The defence did not challenge the assertion that he was responsible for up to 15 similar instances in four communities. Porco was 56, with 21 prior conditions, including repeated ones for criminal harassment and breaching orders. He was employed. He provided a letter of apology, but it lacked insight into his conduct. A pre-sentence report noted that he did not respond well to community supervision in the past. The Crown sought a sentence of four to six months' imprisonment and two years' probation. The defence argued for a conditional sentence." (via Lexus Advance Quicklaw)

R v Sears, [2019] OJ No 1005, 2019 ONCJ 104 (QL)

"(James Sears and LeRoy St. Germaine) are the editor and publisher of a community newspaper, Your Ward News (YWN), which is distributed to over 300,000 homes centred in the Beaches neighbourhood of Toronto. It also is available on-line with a readership claim exceeding one million. They are charged under s. 319(2) of the Criminal Code with two counts of wilful promotion of hatred against an identifiable group -- Jews and women. Both defendants admitted in an Agreed Statement of Facts (Exhibit 1) that these two groups meet the definition of "identifiable groups" under s. 319(7). It was also admitted that Mr. St. Germaine, as publisher, is aware of the publication's content and distribution." (via Lexus Advance Quicklaw)

R v Soles, [1998] OJ No 5061, 86 OTC 4, 40 WCB (2d) 343

"Soles... was convicted of knocking over monuments and damaging a building in a Jewish cemetery and with carrying a concealed weapon. He pleaded guilty to all charges. He had spent four months in pre-trial custody. The Crown contended that a sentence of 12 to 15 months, in addition to time served should be imposed because this was a racially motivated crime. Soles was found in possession of personal property marked with Nazi symbols when he was arrested. He also had several Nazi related tattoos. Soles contended that it was a simple act of vandalism at a time when he was intoxicated. Victim impact statements indicated that many community members were greatly upset by the incidents... Soles was sentenced to 18 months imprisonment." (via Lexus Advance Quicklaw)

R. v. Topham, 2017 BCSC 259 (CanLII), [2017] B.C.J. No. 304 (QL)

"Application by the offender, Topham, challenging the constitutionality of s. 319(2) of the Criminal Code on the basis it infringed his rights protected by s. 2(b) of the Charter. The offender's application was filed pre-trial, and postponed until a verdict was reached in order to provide an evidentiary record to examine the issues raised.

The offender was convicted by a jury of wilfully promoting hatred against an identifiable group, the Jewish religion. The offender published and republished the offending material on his website. The Supreme Court of Canada Keegstra decision determined that the offence provision, s. 319(2) of the Criminal Code, infringed the right to freedom of expression protected by s. 2(b) of the Charter. The Court concluded that the provision was saved by s. 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society.

Given the binding nature of Keegstra, the offender was required to establish a new legal issue was raised post-Keegstra, and that there was a change in circumstances or evidence that fundamentally shifted the parameters of the debate. The offender took the position that the circumstances of wide online dissemination of hate materials justified departure from Keegstra. The Crown submitted there was no basis for reconsideration of Keegstra... Application (was) dismissed." (via Lexus Advance Quicklaw)

R. v. Van-Brunt, 2003 BCPC 559 (CanLII), [2003] B.C.J. No. 3226 (QL)

"Sentencing of the accused, Van-Brunt, who was charged with aggravated assault. Van-Brunt was driving a vehicle past the complainant. The complainant was with his friends and stated "nice car". Van-Brunt stopped his vehicle, got out of the vehicle with a concealed metal bar, and proceeded to call the complainant "n****r". Van-Brunt hit the complainant on the head with the metal bar. The complainant was the only person in his group who was black. There was an issue as to whether, due to his alcoholism, Van-Brunt was not aware that he was using racial slurs. The Crown argued that Van-Brunt was aware of what he was doing at that the crime was motivated by race. It was unclear whether Van-Brunt heard the comment about the car or if he took it to be sarcastic... Van-Brunt was sentenced to 9 months' imprisonment, followed by three years' probation, he was ordered to provide a DNA sample, and received a weapons prohibition for 15 years." (via Lexus Advance Quicklaw)

R. v. Zundel, [1992] 2 S.C.R. 731

Zundel was charged with spreading false news when he published a pamphlet titled, Did Six Million Really Die? The pamphlet suggested that it had not been proven that six million Jewish people had been killed before and during World War II. This charge was contrary to s. 181 of the Criminal Code, which states that a person who wilfully publishes news which is known to be false, that can cause or has caused injury or mischief, is guilty of an indictable offence and can be imprisoned. Zundel was charged and on appeal his conviction was constitutional; however, it was struck down because of errors in admitting evidence and in the charge to the jury. There was a new trial in which Zundel was convicted and kept by the Court of Appeal. The appeal to the Supreme Court was to determine whether s. 181 of the Code did infringe on Zundel’s freedom of expression under the Canadian Charter of Rights and Freedoms. If it did infringe on the Charter, was it justifiable under s. 1 of the Charter. The court found that that Section 181 of the Code was unconstitutional.

Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825

In this case, the Complainant, Malcolm Ross, alleged that the New Brunswick School Board had wrongfully dismissed him from his teaching position for discriminatory remarks he made both in and outside the classroom. For several years, Ross made racist and discriminatory statements about Jewish peoples in public, conveying his anti-Semitic views in print and in a local television interview. Ross alleged the School Board’s decision violated his freedom of expression and religion as protected under Section 1 and 2 of the Canadian Charter of Rights and Freedoms. The Respondent, the New Brunswick School District No. 15, found Ross’ views to be extreme and to have a negative effect on Jewish students who experienced a “poisoned educational environment.” Further, the Respondents claimed that Ross violated Section 2 and 13(1) of the Canadian Human Rights Act. The Supreme Court of Canada agreed with the Respondent that his freedom of expression and religion as outlined in Section 1 and 2 of the Charter were violated by the School Board’s decision, but found that this breach was justifiable.

S

Saskatchewan (Human Rights Commission) v Whatcott, [2013] 1 SCR 467, 2013 SCC 11, [2013] 1 RCS 467

"Four complaints were filed with the Saskatchewan Human Rights Commission concerning four flyers published and distributed by (the accused). The complainants alleged that the flyers promoted hatred against individuals on the basis of their sexual orientation. A tribunal was appointed to hear the complaints. It held that the flyers constituted publications that contravened s. 14 of The Saskatchewan Human Rights Code because they exposed persons to hatred and ridicule on the basis of their sexual orientation, and concluded that s. 14 of the Code was a reasonable restriction on (the accused’s) rights to freedom of religion and expression guaranteed by s. 2(a) and (b) of the Charter. The Court of Queen's Bench upheld the tribunal's decision. The Court of Appeal accepted that the provision was constitutional but held that the flyers did not contravene it." (via case decision)