[Vol. 17
Hate Propaganda – The Amendments
to the Criminal Code
Stephen S. Cohen*
Part
I. IN TRODUCTION
………………………………………………………………………………
Part II. CIVIL LAW ON GROUP HATRED ………………………………………………..
A . E ngland ………………………………………………………………………………………..
B . The U nited States ………………………………………………………………………
C . C anada ………………………………………………………………………………………….
D. Ought There to be a Civil Remedy for Group Libel?
Herein Concerning What Form it Would Take ………………….
E. Other Remedies Used by European Countries ……………………
Part III. ADEQUACY OF THE CRIMINAL LAW IN DEALING
…………………………………………………………..
WITH HATE LITERATURE
A . U nited States ………………………………………………………………………………
B . E ngland ………………………………………………………………………………………..
C. Canada – The Situation Before Bill C-3 was Enacted ……..
741
741
741
746
748
749
752
753
753
758
761
Part IV. BACKGROUND AND HISTORY OF ANTI-HATE LAW
……………
767
Part V. ANALYSIS OF BILL C-3
A. S. 267A – Genocide
B. Promotion of Hate in a Public Place ………………………………….
C. Wilful Promotion of Hatred …………………………………………………..
D. Seizure of Hate Literature ………………………………………………………
…………………………………………………………………
………………………………………………………………….
Part VI. SUMMARY – HEREIN CONCERNING THE UTILITY
OF THE NEW ANTI-HATE LAW AND OTHER
RE LATED ITEM S …………………………………………………………………………….
771
771
773
774
779
783
* BA., LL.B., presently a student at law with the firm of Norman, Lipson
and Lavine in Toronto.
No. 4]
HATE PROPAGANDA
Part I –
Introduction
There are many poignant questions which come to mind when
one is confronted with hate propaganda. Ought not there be a
law which outlaws propaganda? What useful purpose is there in al-
lowing hate propaganda to be seen or heard by the Canadian public?
That its only purpose is to promote feelings of ill-will and hostility
against a particular minority in Canada is beyond doubt. What
rights does any member of the defamed group have against the
promoters of the propaganda?
Today we do have legislation which is specifically enacted to
deal with hate propaganda and its originators and promoters.
However, before delving into the amendment to the Criminal Code
passed by the House of Commons on April 13, 1970 and its his-
tory, it would not be amiss to examine what chance of success a
member of a minority group would have against a hatemonger
who defamed the group, if he instituted a private suit.
Part II – Civil Law On Group Hatred
A. England
The law with regard to a civil cause of action for “group libel”
or “group defamation” really begins with the old English case of
R. v. Osborn.1 That was an action in Criminal Court, the Crown
alleging a libel by the defendant in that Osborn accused “….cer-
tain Jews, lately arrived from Portugal, and living near Broad
Street…”,a of having murdered a woman and her child because
the father of the child was a Christian. As a result of the libel,
these Jews were attacked and hurt by people who believed the
libel. The defendant argued that the group allegedly libeled was
uncertain and therefore there was no case of actionable libel.
The court, however, found Osborn guilty, not of libel but of
publishing something tending to incite the public to break the
peace. In another report of the case 2 the Court emphatically stated
that the case is not by way of libel but for breach of the peace.
This distinction is relevant as the court states that while the “group”
is too uncertain to sustain a libel suit, it is not so in an action
for breaching the peace. The only criterion for the latter crime
being that the peace was disturbed, something easily proved from
1 (1732), Barn, K.B. 166, 94 E.R. 425.
ia In a discussion of R. v. Osborn in In re Bedford Charity, 36 E.R. 717.
2 25 E.R. 584.
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[Vol. 17
the facts of that case. In R. v. Osborn, the case of R. v. Orme 2 ”
was distinguished. In the latter case, there was a libel suit against
several ladies but against no one particular lady. The action was
dismissed, the libeled persons being too vague. That case was
distinguished from the Osborn case on the ground that the charge
in the latter case was totally different from the charge in the
former.
The next case relevant to the issue of a cause of action for
group libel, oddly enough, was also a criminal case. In Gather-
cole’s Case,3 the defendant was charged with four counts of libel,
specifically against the Seaton Nunnery. Aldersen B. directed the
jury as follows:
A person may without being liable to prosecution for it, attack Judaism…
or even any sect of the Christian Religion (save the established religion
of the country), because it [the established religion] is a part of the
Constitution of the Country.4
The headnote of that case reads:
A person has a right to discuss the Roman Catholic religion and its
institutions, but he has no right in doing so to libel individual members.4 a
The first English case which specifically dealt with a civil cause
of action for group defamation was Eastwood v. Holmes. In that
case the plaintiff, being a dealer in antiques alleged he was libeled
by the defendant who wrote that certain supposed pilgrims’ signs
sold by antique dealers were forgeries. As a result the plaintiff
could not sell any pilgrims’ signs he had obtained to sell. Willes J.
non-suited the plaintiff because he said the libel was not of the
plaintiff personally. Willes J. said in an often quoted paragraph:
[a]ssuming the article to be libellous, it is not a libel on the plaintiff; it
only reflects on a class of persons dealing in such objects; … If a man
wrote that all lawyers were thieves, no particular lawyer could sue
him unless there is something to point to the particular individual,.. 0
But it is an important fact that Willes J. also found for the
defendant on the distinct and separate ground that there was no
libel at all because what was written was protected by the privi-
lege of fair comment on a matter of public interest, and was so
written without malicious overtones.
2a (1700), 1 Ld. Rayn. 486, 91 E.R. 1224.
3 (1838), 2 Lewin 237, 168 E.R. 1140.
4Ibid., at p. 1145.
4a Ibid., at p. 1140.
5 175 E.R. 758.
6 Ibid., at p. 759.
No. 4]
HATE PROPAGANDA
The result of the case is that if a group is libeled, a single
member of the group may sue the libeler for damages only if it
can be shown that the libel referred to the individual plaintiff
personally and not simply as a member of the group. This view
is supported by the case of Browne v. Thompson & Co.’ In that
case Bishop Browne and six other Roman Catholic clergymen
sued the the defendant as owner of an Irish newspaper for libel.
The court held they were entitled to succeed not on a group basis
but rather as individuals. The Lord President stated:
The only other matter that was dealt with by Mr. Murray was the question
of individual and collective action… I think it is quite evident that if
a certain set of people are accused of having done something and if such
accusation is libellous, it is possible for the individuals in that set of
people to show they have been damnified, and it is right that they should
have an opportunity of recovering damages as individuals.8
The law of England on the question of a civil suit for group
defamation was settled by the House of Lords in 1944. In Knupffer
v. London Express Newspaper Ltd.9 the plaintiff, who was a Rus-
sian, was allegedly libeled by the defendant newspaper, in an arti-
cle denouncing a group known as the “Young Russian Party”. The
plaintiff was a prominent member of the party’s branch in England
of which there were only twenty-four members. The plaintiff was
not specifically named in the article.
In the Court of Appeal MacKinnon L. J. stated the law of group
libel as follows:
… the primary rule of law is that when defamatory words are written
or spoken of a class of persons, it is not open to a member of that class
to say that they are written or spoken of him.10
As authority for this proposition he quotes Willes J. in East-
wood v. Holmes. There are, in MacKinnon’s opinion, two exceptions
to the primary rule of law which would allow a member of a
defamed class to bring a civil action. The first exception is satis-
fied:
… when the class is so small or so completely ascertainable that what
is said of the class is necessarily said of every member of it …. 11
The second exception to the general rule occurs when the words
purporting to refer to a class in fact refer to one or more indi-
viduals.
7 [1912] S.C. 359 (Ireland).
8 Ibid., at p. 363.
9 [1944] A.C. 116 (H.L.) aff’g [1943] K.B. 80 (C.A.).
10 [1943] K.B. 80, at p. 83.
“Ibid., at p. 84.
McGILL LAW JOURNAL
[Vol. 17
On the facts of the case, the plaintiff fell within the general
rule but could not bring himself within the exceptions and there-
fore lost on appeal.
the real question is whether the words are capable of supporting the
Goddard L. J. took a different tack. He stated that;
:..
innuendo that they were written of and concerning the plaintiff.12
The question as to the membership or size of the attacked
group is irrelevant, the relevant question being:
Is the article an attack on the policy or objects of a society or association,
or is it an attack on an individual? 2 a
In the house of Lords, the decision of the Court of Appeal was
upheld but the House specifically disapproved of the view taken
by Mackinnon L.J., while taking a line which was consistent with
Goddard’s L.J. opinion. Viscount Simon L.C. held,
… it is an essential element of the cause of action for defamation that
the words complained of should be published ‘of the plaintiff” 3
Further on he says,
[tihere are two questions involved in the attempt to identify the appellant
as the person defamed. The first question is a question of law –
can the
article, … be regarded as capable of referring to the appellant? The second
question is a question of fact. Does the article, in fact, lead reasonable
people who know the appellant, to the conclusion that it does refer
to him? 14
Lord Atkin stated that:
… it is a mistake to lay down a rule as to libel on a class, and then qualify
it with exceptions. The only relevant rule is that in order to be action-
able the defamatory words must be understood to be published of and
concerning the plaintiff.15
Lord Russell of Killowen put it this way:
The crucial question in these cases in which an individual plaintiff sues
in respect of defamation of a class or group of individuals in whether…
the defamatory words were published of the individual plaintiff… It is
not.., the case of a defined primary rule with defined exceptions to
the rule.’ 6
A judgment to the same effect was given by Lord Porter. The
Court found that the alleged defamatory statement clearly referred
to the “Young Russians” but not to the individual plaintiff and
therefore found for the defendant.
2Ibid., at p. 88.
12a Ibid., at p. 90.
13 [1944] A.C. 116, at p. 118.
‘4 Ibid., at p. 121.
15 Ibid.
16 Ibid., at p. 123.
No. 4]
HATE PROPAGANDA
In Dowding v. Ockery,’7 the headnote of the trial judgment
reads:
Where a publication contains words, admittedly defamatory, reflecting on
members of an indeterminate class (all persons who express dissent from
a particular legislative proposal) without anything to direct the mind of
the reader to the particular plaintiff, the words are as a matter of law
not capable of referring to the plaintiff.’8
On appeal to the Full Court, the plaintiff lost, the court sub-
stantially agreeing with the trial judge. The trial judge in analy-
sing the Knup fer case drew two conclusions:
Where the libel is of a determinate class, each member of the class may
sue; the size of the class is irrelevant except to the extent that the larger
the class, the more difficult it may be to prove that it is in truth a
determinate class. Secondly, where the libel is of an indeterminate class,
an individual member can not sue unless he can prove that he, as an
individual was aimed at in contradistinction to the other members.’ 9
This case breaks no new ground in group libel civil suits, but
merely extends the Knup fer decision so that the plaintiff, who is
a member of a group which is defamed must prove:
1) he was a member of the defamed group;
2) that the defamation when read in the light of the surround-
ing facts referred to the plaintiff personally, and
3) that the defamation in fact would lead a reasonable man
to believe the defamatory remarks were directed at the plaintiff
personally.
It goes without saying that if the group is indeterminate and
no single plaintiff, i.e., a member of the group, is singled out per-
sonally, the plaintiff would not have a cause of action for libel.
If, however, the surrounding circumstances pointed unmistakeably
to the plaintiff being libeled in a personal capacity even if he were
not named, he would have a cause of action but not under any
group libel rubric.
There has been no movement to enact legislation to overrule
the hard line taken against a civil cause of action for group libel
in England. In 1948, the Committee on the law of defamation,
i.e., the Porter Committee, devoted only three paragraphs to group
libel. Their attitude may be summarized by quoting from the re-
port:
Much as we deplore all provocation to hatred or contempt for bodies or
groups of persons with its attendant incitement to violence, we cannot
17 [1962] W.A.R. 110.
18 Ibid.
19 Ibid., at p. 115.
McGILL LAW JOURNAL
[‘Vol. 17
fail to be impressed by the danger of curtailing free and frank –
albeit,
hot and hasty –
political discussion and criticism. No suggestion has
been made to us for altering the existing law which would avoid the
prohibition of perfectly proper criticisms of particular groups or classes
of persons. The law of seditious libel still exists as an ultimate sanction
and we consider that the law as it stands affords as much protection as
can safely be given. 20a
In 1965, England’s attitude to hate propaganda was modified
by the passing of the Race Relations Act.2 b This will be discussed
in the context of Canada’s new anti-hate law.
B. The United States
The United States’ law on a civil cause of action for group
defamation is the same as that of England. In Noral v. Hearst
Publications (1940) 21 the plaintiff alleged he was defamed by the
defendant in an article stating that the Workers Alliance members
and their officials diverted membership dues to further Com-
munistic agitation. The plaintiff was an official of the libeled organi-
zation but in all there were over 165 officials. The plaintiff was
never personally mentioned. The court held:
The complainant must fail because the publication does not defame any
ascertainable person. 22
The court in considering freedom of the press held:
‘It is far better for the public welfare that some occasional consequential
injury to an individual, arising from general censure of his profession,
his party or his sect, should go without remedy than that free discussion
on the great questions of politics, or morals, or faith should be checked
by the dread of embittered and boundless litigation’.2
In Golden North Airways v. Tanana Publishing Co.2 4 the ap-
pellant company operated a nonschedule airline in Alaska. It
sued the respondent newspaper for libel, alleging that all non-
scheduled airlines in Alaska were defamed and therefore every
member of the group of nonscheduled airlines could sue, although
none of them was mentioned specifically. The court did not quarrel
with the law as stated by the appellant but on the facts the jury
2OReport of the Committee on the Law of Defamation, Right Honourable
Lord Porter – Chairman, (London, 1948).
20a Ibid., p. 11, par. 31.
20b 1965 Statutes of England, c. 73.
21 104 P. 2d., 860 (District Court of Appeal Second District California).
2 Ibid., at p. 862.
23 Ibid., at p. 863 quoting from Ryckman v. Delavan, 25 Wend. N.Y. 186 at 199.
24 218 F. 2d., p. 612.
No. 4]
HATE PROPAGANDA
found at trial that the article did not refer to all the nonscheduled
airlines. As a result the appellant had no cause of action. The
court stated the law in this way:
A libel directed at a group may form the foundation of an action by an
individual if the group is small enough so that the person reading the
article may readily identify the person as one of the group … [hlowever,
if the group is so large that there is no likelihood that a reader would
understand the article to refer to any particular member of the group
it is not libelous.25
The way this court states the law is not unlike Mackinnon L.J.’s
first exception to his general rule in the Knupffer case. The gist of
the action by a plaintiff who is a member of a defamed group is
still that he was defamed as an individual.
The final U.S. case worthy of note on this subject is Fowler v.
Curtis Publishing Co. 20 This was a case of a civil action brought
by Fowler, a taxi cab company owner and Howery, a taxi cab
driver on behalf of 59 other drivers charging the defendant company
with publishing a libelous article defaming taxi drivers in the
District of Columbia. The article portrayed cab drivers as ill-man-
nered, brazen and contemptuous of their patrons. The defendants
however won the case, the court saying that Mr. Fowler as an
owner was not defamed and Mr. Howery as a driver was not
defamed personally. The court held:
In case of a defamatory publication directed against a class, without in
any way identifying any specific individual, no individual member of
the group has any redress. 27
The only exception involves cases in which the phraseology of a de-
famatory publication directed at a small group, is such as to apply to
every member of the class without exception. 28
A similar statement of the American law is to be found in
Peay v. Curtis Publishing Co. 2 9 In that case the plaintiff won her
libel suit, which arose out of the same article as that in the Fowler
case. However as part of the article, published by the defendant,
there was a photograph of a cab driver who was in fact the plaintiff
Muriel Peay. The court distinguished the Fowler case by saying that
by the defendant’s inserting of her photo in the article she was
sufficiently identified as one of the cab drivers defamed.
25 Ibid., at p. 618.
2678 F. Supp. 303 (District Court of U.S. for D.C.).
27 Ibid., at p. 304.
28 Ibid., at p. 305.
20 Ibid.
McGILL LAW JOURNAL
[Vol. 17
C. Canada
In 1913, a case arose in Quebec which might have been the
foundation of a different attitude towards civil remedies for group
libel. The facts in Ortenberg v. Plamondon 0 were as follows: the
case involved a libel action by two merchants of St. Roch against
Mr. Plamondon, claiming that as a result of a lecture delivered
by the defendant entitled “The Jew” the plaintiff’s business suffered
because the plaintiff was Jewish. The plaintiff was not specifically
named in the lecture.
At trial, the action was dismissed, the court saying:
[tihe defendant, in his lecture, incriminates only the Jewish race … with-
out attacking the plaintiff in particular,.. .31
The plaintif therefore had no civil recourse against the defen-
dant. This is in line with what was then established authority, and
what was to be solidified further thirty years later by the House of
Lords.
On appeal to the Quebec Court of Appeal the decision was
reversed in the plaintiff’s favour. At first glance then it appears
that the Quebec Court of Appeal recognized the right of a member
of a defamed group to sue the libeler and succeed though the indi-
vidual plaintiff was not specifically named in the libel. However
the Court goes out of its, way to state this action on which the
plaintiff succeeded was not one of group libel, though there were
at the time 75 Jewish families in Quebec and the lecture was aimed
at Jews in general. 31a Cross J. said:
I, however, consider that it would be a mistake to test the appelant’s right
of recovery in his action by rules applicable only to actions of defamation
or libel. The declaration in this case discloses a wider cause of action,
namely that of an action in damages for words maliciously spoken,….8
Mr. Justice Cross merely applied article 1053 of the Quebec
Civil Code.32
1 Furthermore, it is not altogether clear but it might
be inferred from the judgment of Cross J. that the plaintiff was
30 (1913), 24 D.L.R. 549 reversed by (1915), 24 B.R. 69 and 385.
31 (1913), 24 D.L.R. 549, at p. 551, this being the translated version of the
judgment originally given in French.
3a Mr. Justice Carroll said a La collectivit6 juive de Qu6bec se compose de
75 familles …. sur une population de 80,000 &mes. Ce n’est pas le cas d’une
injure adress~e ht une collectivit6 assez nombreuse pour qu’elle se perde dans
le nombre)>. (1915), 24 B.R. 69, at p. 75.
32 (1915), 24 B.R. 385, at p. 388.
32aMr. Justice Carroll, without referring specifically to a. 1053 C.C. says
that what transpired was ode la diffamation personnellen, and accordingly
awarded damages. (1915), 24 B.R. 69, at p. 77.
No. 4]
HATE PROPAGANDA
referred to by strong implications. The view this author takes of
this case is bolstered by the case of Germain v. Ryan 33 where the
Quebec Court held that in a civil defamation suit no action lies
for a libel directed against a group when the size of the group
is so large and indeterminate, that it cannot be said the libel was
specifically directed at an individual personally.
D. Ought There To Be A Civil Remedy for Group Libel? Herein
Concerning What Form it Would Take
The question of what the law is vis & vis civil suits by members
of defamed groups is settled. There is yet to determine why the
law is as it is and why there has been very little movement to
change it.
One reason the civil group libel laws have not developed, is
due to the fact that in the western hemisphere, especially the U.S.,
the individual, not the group, predominates. As a result the law
of defamation was conceived as protection for the individual, the
same way as the law of assault and battery protects the individual.
Therefore,
… discovery of an adequate defense for groups must cope … with the
customary refusal of American [and Canadian]
law to appreciate the
role of groups in the social process.34
The courts are also afraid that if they recognize such civil suits,
they will be exposing the courts to a floodgate of fraudulent, vexa-
cious, and frivolous litigations. Furthermore, there is a problem of
status to sue. The courts have long recognized that a corporation
is a legal entity which may sue or be sued, but at the same time
have refused to allow unincorporated groups to sue or be sued,
the primary problem with the “group” being how to define its
limitation.
Still other jurists have argued that the criminal law and not the
civil law is the proper weapon to deal with hate directed against a
collectivity.
These criticisms however are not universal8 5
There are those who argue that there should be a civil remedy
for group defamation. Wilner points out that:
33 (1918), 53 C.S. 543.
34 Reisman, Democracy and Defamation: Control of Group Libel, (1942), 42
Col. L. Rev. 727, at p. 731.
35 For a good discussion contra see Wilner, The Civil Liability Aspects of
Defamation Directed Against a Collectivity (1942), 90 U.Pa.L. Rev. 414.
McGILL LAW JOURNAL
[Vol. 17
In view of the strong public policy against defamation expressed in
the cases where actual damage need not be shown, it
is not readily
comprehensible why this same policy should cease when a ‘class’ rather
than a natural person is the nominal addressee of the identical charges. 30
Furthermore, whereas a group may have no legal identity, certain
groups should nevertheless have the right to be free from inter-
ference with their social if not legal status.
In addition there is a way to overcome the fear of fraudulent
suits and the fear of multiplicity of actions. The law could allow
representative suits by the groups.
The courts could avoid the equally important hurdle, of how
to fix monetary damages by awarding only costs to the plaintiff
(group) and having as its principal remedy the injunction. The
use of an injunction would solve the procedural criticisms, in-
cluding that of multiplicity.3 7
The use of an injunction is not unknown in Canadian law. The
Defamation Act of Manitobasra which was originally enacted in
1934, provides the injunctive remedy for group libel.
The section reads:
19(1). The publication of a libel against a race or religious creed likely
to expose persons belonging to the race, or professing the religious
creed, to hatred, contempt or ridicule and tending to raise unrest or
disorder among the people, entitles a person belonging to the race or
professing the religious creed, to sue for an injunction to prevent the
continuation and circulation of the libel; and the Court of Queen’s Bench
may entertain the action.
19(2). The action may be taken against the person responsible for the
authorship, publication or circulation of the libel.
19(3). The word “publication” used in this section means any words
legibly marked upon any substance or any object signifying the matter
otherwise than by words exhibited in public or caused to be seen or
shown or circulated or delivered with a view of its being seen by any
person.
19(4). No more than one action shall be brought under Subsection (1) in
respect of the same libel.
The section had a dismal life during its 36 years ig the statutes
of Manitoba. It has only been invoked once in the case of Tobias v.
Whittaker in 1934 where the plaintiff was successful. The fact that
this section has been a dead letter is attributable to the fact that
such a section might be ultra vires the Provinces. Another factor
6 Ibid., at p. 424.
3 7 Supra, n. 34.
37a R.S.M. 1970, c.D. 20 s. 19.
No. 4]
HATE PROPAGANDA
might be that a plaintiff, suing as a member of a defamed group,
wants more than the cessation of the material which is libelous.
He wants monetary damages for the hurt he suffered because of
the libel. However, to date, the courts have been unwilling to give
such a plaintiff monetary damages because of a theory which has
been elevated to an unspoken presumption which presumes that
when groups are the victims of libelous actions, individuals within
the group cannot be hurt simply because he is a member of the de-
famed group. Needless to say this presumption has been rebutted by
scientific psychological experimentation. However, because the
courts have not yet seen the light, it is not worth anyone’s while or
expense to sue.
Nor has the injunction only been recommended as a suitable
remedy in civil actions. There was a movement to amend Bill C-3
in the House of Commons led by the Honourable Member from
Greenwood Mr. F. A. Brewin. In the House of Commons on Nov. 17,
1969 he made a speech in favour of Bill C-3 37b but suggested an
amendment to it. He wished to change the remedy under the Bill
from jail and or fine to that of an injunction through a cease and
desist order. He pointed out that in the “Goodyear” Case the
Supreme Court of Canada held that the injunctive remedy is a
proper means of enforcing criminal law. His reasons were that the
injunction is more flexible because it would apply not only to
an accused but also his agents or servants. Mr. Brewin moved
for an amendment to Section 267B of Bill C-3 giving the court an
injunctive power .3 Part of this amendment read,
… the court may… make an order in lieu of or in addition to the
penalty set out in Subsection (2) [of S. 267B] requiring such person
to cease and desist from proceeding with or continuing or making
any communication prohibited by the act and the order so made may be
enforced as if it were made by the superior court of any province 39
Mr. Brewin in commenting on the advantage of his amendment
being flexible said:
… it should be open to the courts to say. ‘We will not brand you as a
criminal, will not send you to jail, not even fine you but will obtain
… if a court
from you an understanding not to repeat the offence.’
comes to the conclusion that the offence was committed out of ignorance
it could say ‘go and sin no more’… On the other hand where there
is deliberate propagation of material designed and calculated to arouse
37b House of Commons Debates, 1969, Vol. I, 2nd Sessions, 28th Parl., pp.
887-890.
38 House of Commons Debates, 1970, Vol. VI, 2nd Session, 28th Parl., p. 5661.
39 Ibid.
McGILL LAW JOURNAL
[Vol. 17
hatred there could be a warning that it must not be repeated. Then,
if it were repeated the full power of prison for contempt should be
used where there is a deliberate repetition of the offence. 0
The amendment was soundly defeated by a vote of 169 to 15,
notwithstanding that, at least in this author’s opinion, the change
proposed provided an admirable remedy.
It would seem therefore despite its excellent potential to combat
hate and its disseminators the injunction as the proper remedy is
rejected in both the civil and criminal spheres.
E. Other Remedies Used by European Countries
The possible remedies to fight hatemongers does not necessarily
have to be limited to monetary damages and or injunction.
In France, a Civil Law jurisdiction, there is a different kind of
remedy afforded to a plaintiff who succeeds in a group libel suit.
In addition to costs and monetary damages, the court may order
the publication of the entire judgment in a certain number of
newspapers of the plaintiff’s choice at the defendant’s expense.
This remedy has the very dramatic effect of conveying to the same
public who heard the hate message, the fact that the conveyor of
that message is an outlaw in the literal sense of the term, that the
courts frown on what was said and that the hatemonger was found
guilty in the eyes of the law and should therefore not be listened to.
The nemesis of the remedy is that the Defendant pays the cost of
stifling what he had previously advocated. However, realistically
speaking, this author does not see that this remedy will be incorpo-
rated into Canadian jurisprudence either at common law or by
statute law.
The other remedy worthy of note simply because of its unique-
ness, was mentioned in the Cohen Report.41 It is found in the Penal
Code of the Netherlands 1934 Article 137(d)(3) which reads,
‘Anyone guilty of any of the offences herein described [i.e., group libel]
and committing them in the course of carrying out his occupation, may
be deprived of the right to pursue his occupation if less than five years
have elapsed since his last final conviction for a similar offence.’
The very short answer to the question asked at the beginning
of the inquiry, i.e., “What rights does any member of the defamed
group have against the promoters of the propaganda?”, is that
civilly he has none. What rights should he have? Perhaps none in
40 Ibid.
4 1 Report of the Special Committee on Hate Propoganda in Canada, Maxwell
Cohen – Chairman, (Ottawa, 1965) at p. 287.
No. 4]
HATE PROPAGANDA
view of the passage of Bill C-3 which was enacted with a view
to combatting hate and its perpetrators. But this author is still
persuadea that a civil action for group defamation, is so framed
as to allow representative actions coupled with the injunctive
remedy would be an effective weapon against hate. It
is not
enough to point to the failure of S. 19 of the Manitoba Defa-
mation Act without delving further to discover the true reason for
its failure as a useful law.
Part III – Adequacy Of The Criminal Law In Dealing
With Hate Literature
A. United States
For the most part the criminal law of the United States has
been inadequate to deal effectively with hatemongering. The basis
of the inadequacy lies in the U.S.’ passion to uphold and preserve
certain freedoms guaranteed in their Constitution of which two are
freedom of speech and freedom of the press. But in their fervour
to so preserve these cherished freedoms, many U.S. jurists have
forgotten that freedom is not synonymous with licence; that speech
is not free in any absolute sense; that the United States has laws
against defamation and slander and these laws are not seen as
violating freedom of speech. This attitude is important for Canadian
law as well because while the hate law was being debated between
1965 and 1970, the strongest opponents of it based their opposition
on that fact that it was an undue extension of the state into the
right of free speech for Canadians.
The case of Schenck v. U.S.42 is important because in that case
Holmes J. enunciated his famous “clear and present danger” test
later to be picked up by the majority of the Supreme Court of
Canada in “the Boucher” cases. In Schenck v. U.S. a document was
sent to men who were drafted for World War I urging them not
to go to war. As a result the accused Schenck was charged under
the Espionnage Act. The accused argued that what he did was
protected by the guarantee of free speech under the first amendment
to the Constitution. In dismissing the appeal Holmes J. said:
The character of every act depends upon the circumstances in which it
is done. The most stringent protection of free speech would not protect
a man from an injunction against uttering words that may have all
the effect of force. The question in every case is whether the words used
42249 U.S. 247.
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are used in such circumstances and are of such a nature as to create
a clear and present danger that they will bring about the substantive
ends that Congress has a right to prevent 43
This test has been the ruin of the effectiveness of the Criminal
Law to combat group hatred. By the use of this test, prosecutions
for group libel are restricted to situations of incipient violence. But
the professional hatemonger refrains from appeals to violence, seek-
ing rather to plant the slow germinating but hardy seeds of hatred,
and such an approach taken by a hatemonger is not within the
legal definition of clear and present danger.44
In Chaplinsky v. State of New Hampshire,45 Murphy J. limited
the scope of free speech. He said:
Allowing the broadest scope to the language and purpose of the 14th
amendment, it is well understood that the right of free speech is not
absolute at all times and circumstances. There are certain well-defined
and narrowly limited classes of speech, the prevention and punishment
of which has never been thought to raise any constitutional problem.
These include the lewd and obscene, the profane and libelous and the
insulting words which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. It has been well observed
that such utterances are no essential part of any exposition of ideas
and are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality.46 (Emphasis added.)
Under this line of reasoning it is readily observed that hate
literature could not possibly violate the freedom of speech that the
framers of the U.S. Constitution wished to guarantee almost 200
years ago.
In 1920 the next case worthy of note arose in Texas. Drozda v.
State47 was a case of criminal libel. One ground of appeal was
that the alleged libel was of such indefinite and general character
that it could not support a charge of libel. The court held that:
A government or other body politic, a corporation, religious system,
race of people, or a political party are not subject to criminal libel… A
man who scurrilously attacks the Smiths, Johnsons, Joneses or the Jews,
Gentiles or Syrians … could not be successfully haled into court and
convicted of libel of any particular person, unless there be something
in such article why by fair interpretation thereof tended to bring into
disrepute some particular person or persons. 48 (Emphasis added).
43 Ibid., at p. 249.
44 Leary, Protection from Group and Class Defamation by Extremists, 40
Los Angeles Bar Bulletin 23, at p. 27.
45315 U.S. 766.
46 Ibid., at p. 769.
47218 S.W. 765.
48 Ibid., at p. 766.
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HATE PROPAGANDA
The court adopted the line of reasoning used to dismiss civil
actions brought by a member of a defamed group.
This view is supported by People v. Edmondson.49 The defendant
was charged under a New York State criminal libel statute alleging
he libeled “all persons of the Jewish religion.”
The court reviewed the notable English and American cases on
group libel and concluded:
… it would seem, [that] a natural person or a corporation or association
of persons, that is a limited group, the members of which can be particu-
larized can be the subject of a criminal libel.
On the basis of authorities considered it was decided that;
… such an indictment cannot be sustained under the laws of this state
[New York] and that no such indictment as the one based on defamatory
matter directed against a group so large as “all persons of the Jewish
religion” has ever been sustained in this or any other jurisdiction.50
At the same time the court said that it did not doubt the
defamatory nature of the publications it also held that those same
publications had been circulated for a number of years and “have
never provoked a breach of the peace in this community, nor, in
spite of their virulence are they apt to.” 51
The U.S. courts have in my opinion, misconstrued the inherent
difference between criminal and civil libel. All the bogey-men plagu-
ing the courts with regard to civil libel suits are not present in a
criminal trial. The parties in the latter are not just private individu-
als. One party represents the state which represents the people.
Because the libel here is criminal in nature, the fact that the corpus
of the victim may be indefinite is irrelevant. The court in the
Edmondson case did not deny the defamatory nature of the libel and
did not deny that there was a victim. But relying on authority, i.e.,
civil group libel case, it dismissed the action because the victim was
amoeboid. The better reasoning would have been to put aside
authority based on civil cases and adopt the reasoning of Murphy J.
in the Chaplinsky case.
An interesting sideline in the Edmondson case was the fact that
when the case arose, motions were made by attorneys for the
American Committee on Religious Rights and Minorities, The
American Jewish Committee, The American Jewish Congress, the
Human Relations Committee of the National Council of Women
and the American Civil Liberties Union asking to intervene as
amicus curiae and to file briefs. These briefs, while denouncing
the defendant’s act, nevertheless in order to safeguard free speech
494 N.Y.S. 2d., 257.
50 Ibid., at p. 260.
51 Ibid., at p. 268.
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and free press asked the court to dismiss the charges. These groups
pointed out that it is wiser to bear with the hatemonger than to
extend the criminal law so that in future it might become too
oppressive. The court evidently agreed. It held:
We must suffer the demagogue and the charlatan, in order to make certain
that we do not limit or restrain the honest commentator on public
affairs.52
In Kunz v. People of State of New York 5 3 a majority of the
Supreme Court of U.S. decided that a New York City by-law
requiring a public speaker to get a licence from the police com-
missioner was unconstitutional, as it violated freedom of speech.
Mr. Justice Jackson dissented. The appellant spoke without a permit,
denouncing the Jews and the Roman Catholics, at Columbus Circle
in New York City. He was originally granted a permit but had it
revoked by the police commissioner because he had ridiculed and
denounced other religious beliefs at previous meetings. Jackson J.,
while adhering to Holmes J’s. “clear and present danger” test
decided this test was inapplicable to what Kunz was doing and
therefore would have upheld the by-law. He said:
We should weigh the value of insulting speech against its potentiality
for harm. Is the court [majority] when declaring Kunz has the right
he asserts serving the great end for which the 1st amendment stands?
The purpose of constitutional protection of free speech is to foster
peaceful interchange of all manner of thoughts, information and ideas.54
He also said that:
In streets and public places all races and nationalities and all sorts
and conditions of men walk and mingle. Is it not reasonable that the
city protect the dignity of the persons against fanatics who take possession
of its streets to hurl into its crowds defamatory epithets that hurt like
rocks?55
Jackson J. realized that the greatest harm done by hatemongers
is not just the breaches of the peace that may be provoked but
the attack on individual’s dignity, respect and status in the com-
munity in which he lives through lies and insults directed at a group
of which these individuals are members. This attack is real and
its effect is just as real, the blows “hurting like rocks.””
52 Ibid.
53340 U.S. 290; 71 Sup. Ct. Rep. 312.
5471 Sup. Ct. Rep. 312, at p. 319.
55 Ibid., at p. 325.
56 For a further explanation of the role of free speech in the United States
see Feiner v. People of New York 71 Sup. Ct. Rep. 303, 340 U.S. 315, and
Niemotko v. State of Maryland 71 Sup. Ct. Rep. 325, 340 U.S. 268.
No. 4]
HATE PROPAGANDA
Some states in the U.S. have experimented with group libel laws.
The constitutionality of these laws was tested in Beauharnois v.
Illinois in 1952.”7 The Illinois law prohibited any person from
exhibiting any lithographs which portrayed lack of virtue of a class
of citizens. By a 5:4 decision the Supreme Court of the U.S. upheld
the validity of the Illinois’ group libel law and Beauharnois’ con-
viction under it. Frankfurter I. delivered the majority opinion. He
pointed out that despite the broad language of the 1st amendment,
speech is not absolutely free. This view was supported by the
Chaplinsky case. Frankfurter J. realized the inherent distinction in
a criminal group libel case from that of a civil group libel situation.
He put it this way:
But if an utterance directed at any individual may be the object of
criminal sanctions, we can not deny to a state power to punish the
same utterance directed at a defined group unless we can say that this
is a wilful and purposeless restriction unrelated to the peace and well
being of the state. While the Illinois law may not destroy group hatred,
yet the states should be allowed as far as possible to combat it by any
policy they may choose to experiment with.58
The dissenting justices centered their dissents around the possi-
ble horrible consequences that might evolve if free speech were
so drastically curtailed. For example Black J. said:
As a result of this refined analysis [majority opinion] the Illinois Statute
emerges as a group libel law. This label may make the court’s holding
more palatable for those who sustain it but the sugar-coating does not
make the censorship less deadly.59
Douglas J. while conceding that free speech is not absolute in
that for example a man may not yell ‘fire’ in a theatre, yet he felt
that speech should be given as wide a scope as possible as seen
from its preferred status in the U.S. Constitution.
Jackson J. pointed out that the U.S. Supreme Court never sus-
tained a federal criminal libel act but held:
Group libel statutes represent a commendable desire to reduce sinister
abuses of our freedoms of expression. While laws or prosecutions might
not alleviate racial or sectarian hatreds, I should be loath to foreclose
the States from a considerable lattitude of experimentation in this field.
Such efforts, if properly applied do not justify frenetic forebodings of
crushed liberty.sO
Despite this liberal attitude he feared that the Illinois law did
not give the accused sufficient safeguards and so dissented.
57 343 U.S. 250; 72 Sup. Ct. Rep. 725.
5872 Sup. Ct. Rep. 725, at p. 731.
59 Ibid., at p. 738.
60 Ibid., at p. 754.
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Black J. summed up the minority view in the U.S.A. on how
to fight group hatred, if indeed it should be positively fought at all,
when he said:
If there be minority groups who hail this holding as their victory, they
might consider the possible relevancy of this ancient remark: ‘Another
such victory and I am undone.’ 6′
The U.S. has adopted a “sticks and stones” attitude towards
group libel. The Beauharnois case exists in a vacuum. Its effect on
other states to enact similar legislation is nil. At a symposium held
in the 1960’s in the United States,2
the U.S. position with regard
to hatred directed at groups was reviewed and the conclusion was
that it was unsatisfactory. The problem of group hatred will not
disappear if the U.S. continues to bury its head in the sand. In
that same symposium Clark J. of the U.S. Supreme Court said
that group hatred will not be eliminated by laws but only when
the three “I’s” have been wiped out: Intolerance, Ignorance, Igno-
bility. The conclusion of the symposium was that legislation was
needed to fight hate and its peddlars. In the U.S., it may fairly
be concluded that the Criminal Law is as sterile as the civil law to
deal with group defamation.
B. England
In England, the criminal law with regard to group libel began
with the case of R. v. Osborn in 1732.63 The gist of the action in
that case was not libel directed at a group but rather libel which
occasioned a breach of the peace. The fact that a group was the
victim of the libel was really irrelevant to the charge on which
Osborn was convicted.
One hundred and seventy years later, a case arose which
supported those who maintained that R. v. Osborn was simply
a case of breach of the peace and not one of criminal responsibility
for a libel directed at a group. In Wise v. Dunning 4 the appellant
Wise, a Protestant Lecturer held meetings in public places in
Liverpool, causing large crowds to assemble and block certain
avenues. In his speeches he insulted the Roman Catholic religion.
There were a substantial number of Roman Catholics in Liverpool.
The natural consequences of his speeches was to cause breaches of
61 Ibid., at p. 740.
62 Symposium on Group Defamation, 13 Cleveland-Marshall Law Review,
pp. 1-117.
63See notes I and 2, supra.
64 [1902J 1 K.B. 167.
No. 4]
HATE PROPAGANDA
the peace. He openly stated that he intended to hold more meetings.
As a result the local magistrate bound him over in recognizance
to be of good behaviour. On appeal the Court of Appeal held that
the magistrate had acted correctly. It therefore appears that a
court may bind over, to be of good behaviour, anyone who, in making
public speeches, uses language, the natural consequences of which
is that listeners will breach the peace although he does not directly
invite anyone to breach the peace.
In 1948 the Porter Committee was set up to examine the law
of defamation as it then was. In its report it devoted only three
paragraphs to group defamation and concluded that the law should
not change and that the offence of criminal sedition was adequate
to deal with group defamation.65
The next chapter in England’s fight against group hatred occurred
in 1963, with the case of Jordan v. Burgoyne.6 Colin Jordan was
the self-styled leader of the neo-Nazi party in England and he began
to activate his party around the same time that John Beattie and
George Lincoln Rockwell were active in Ontario and U.S. respectively.
Jordan was charged under S. 5 of the Public Order Act 1936
which read:
Any person who in any public place or at any public meeting uses
threatening, abusive or insulting words or behaviour with intent to pro-
voke a breach of the peace or whereby a breach of the peace is likely
to be occasioned, shall be guilty of an offence.
What Jordan did was to read a speech at Trafalgar Square which
defamed the Jewish race. Because much of the audience was Jewish,
it became unruly and a breach of the peace occurred. The Court of
Quarter Sessions acquitted Jordan. The court admitted that his
speech was insulting but the court said that it would not lead the
ordinary reasonable man to commit a breach of the peace.
The Crown appealed and its appeal was allowed. The true test
under S. 5 was not whether a “reasonable audience” would be
provoked by the speaker to breach the peace. Rather, a speaker
must take his audience as he finds it and the true test therefore
is whether his speech would provoke the audience in front of him.
As a matter of fact the court found his speech would so provoke
his audience and convicted him. Lord Parker C. J. said:
The defendant argued.., if he is convicted, then there is some inroad into
the doctrine of free speech. It is nothing of the sort. A man is entitled
to express his own views as strongly as he likes, to critize his opponents
Or See note 20, supra.
06 [1963] 2 W.L.R. 1045.
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… and to do anything of that sort. But what he must not do is …
threaten…. be abusive, [or] insult them [his opponents].67
Those who oppose legislation meant to combat hatemongers
argue such a case as this creates a “heckler’s veto.” If a speaker
intends to speak on a topic unpopular with a sufficient number
of people who attend and disrupt the speaker to such an extent as
a breach of the peace occurs, that speaker is caught under S. 5 of
the Public Order Act though his topic may be as objectively harm-
less as one can imagine. But it must be remembered that to sustain
conviction under this section the speaker must use abusive or
insulting words. The drawbacks of the Public Order Act were
that it did not apply to libelous as opposed to slanderous actions
and it did not apply to slanderous actions not in a public place.
In 1965 the Public Order Act of 1936 was repealed by the enact-
ment of a new statute entitled the Race Relations Act. Section 6
of that act specifically deals with group defamation in a criminal
context. Since its enactment S. 6 has been before the English Courts
for comment and interpretation.
R. v. Britton 1s was a case involving the meaning of “distribution”
as it appeared in ss. 6(1)(a); 6(2) of the Race Relations Act.
S. 6(1)(a) reads in part as follows:
A person shall be guilty of an offence under this section if, with intent
to stir up hatred against any section of the public in Great Britain
distinguished by colour, race, or ethnic or a national origin he publishes
or distributes written matter which is threatening, abusive or insulting.
S. 6(2) provides in part:
…
‘publish’ and ‘distribute’ mean publish or distribute to the public at
large or to any section of the public not consisting exclusively of members
of an association of which the person publishing or distributing is a
member …
The court held that having pamphlets which could be said to
promote class disruption by defaming a minority group was not
a distribution within the meaning of ss. 6(1)(a); 6(2), when such
pamphlets were on the porch of a home.
Another recent English decision involving S. 6 of Race Relations
Act is Thorne v. B.B.C.,69 a decision of the English Court of Appeal.
The plaintiff sued the defendant for an injunction restraining the
continuance of alleged propaganda against Germans by the de-
fendant. There was no allegation that the plaintiff in a personal
67 Ibid., at p. 1048.
6s [1967] 1 All E.R. 486.
69 [1967] 2 All E.R. 1225 (Eng. C.A.).
No. 4]
HATE PROPAGANDA
capacity had been defamed although he was of German origin.
In addition Thorne had sued without the consent of the Attorney
General.
The Court of Appeal unanimously held for the defendant and
the injunction was refused.
Lord Denning M. R. held that S. 6 of the Race Relations Act
creates only a new criminal offence for which the proper remedy
is a prosecution by or with consent of the Attorney General. S. 6(3).
This prerequisite the plaintiff did not have and so his case failed.
Dankwerts L. J. found two problems in the plaintiff’s path.
The first being prior consent from the Attorney General and the
second being that no civil remedy is given to an individual under
S. 6. Even if there was, the plaintiff alleged no wrong to himself
personally.
Finally Winn L. J. says that it is clear from ss. 1(4), 3, 6,
that Parliament did not intend that any individual might by force
of the Act attack any other citizens for alleged infringements of
S. 6 of the Act which creates a criminal offence. The Race Relations
Act of England is just five years old and its overall effect on hate
literature and those responsible for it remains to be seen. And yet
the very fact that such an Act was passed in England, the pillar
of freedom, the birthplace of Parliament and home of the Magna
Carta is enough to rebut any criticism of an anti-hate Act on
grounds of violation of freedom of speech.
C. Canada – The Situation Before Bill C-3 was Enacted
Was the state of the criminal law of Canada before the passage
of the anti-hate bill able to deal adequately with the problem of
hate literature? The fact that a new piece of legislation was passed
to deal specifically with hate dissemination speaks for itself.
The reason why Bill C-3 was needed was not that certain
sections of the Criminal Code did not have the potential to deal
with this problem but that judicial interpretation had so confined
these sections as to make them sterile in this area.
It was thought before the decisions in the “Boucher” cases”
that the sedition sections, now ss. 60-62 in the Canadian Criminal
Code, especially ss. 60(4)(b) and 61(d) might be used to prosecute
hatemongers. However the Supreme Court of Canada has by a
majority, so narrowly defined and limited these sections as to
make them inapplicable. Boucher, a Jehovah’s Witness was con-
70 [1950] 1 D.L.R. 657 (Boucher) 1; [1951] 2 D.L.R. 369 (Boucher) 2.
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victed in the lower courts of seditious libel by the publication in
Quebec of a pamphlet entitled “Quebec’s Burning Hate for God,
Christ and Freedom.”
When the case reached the Supreme Court of Canada, the learned
justices adopted different lines of reasoning. Rinfret’s C.J.C. judg-
ment dealt for the most part with the trial judge’s direction to
the jury. In the remaining part of his judgment he dealt with the
law of seditious libel in Canada. He concluded that the promotion
of ill-will between Canadians in bad faith was a seditious libel.
Speaking of freedom of speech he noted that,
… to interpret freedom as license is a dangerous fallacy. Obviously pure
criticism or expression of opinion, however severe or extreme, is, to be
invited. But there must be a point where restriction on individual freedom
of expression is justified on the ground of reason,… 7 1
Rinfret C.J.C. had just mirrored what Frankfurter J. had said
around the same time in the Beauharnois case. This same view
of freedom of speech was supported by Duff, C.J.C., who held in
Reference Re Alberta Legislation 72 that,
The right of public discussion is, of course, subject to legal restrictions;
those based upon considerations of decency and public order, and others
conceived for the protection of various private and public interests with
which, for example, the laws of defamation and sedition are concerned.
In a word freedom of discussion means to quote the words of Lord
Wright in James v. Commonwealth ‘freedom governed by law’.
Rinfret C.J.C. did not believe that advocacy of force as described
in S. 60(4) (b) was a necessary ingredient to an action for seditious
libel.
Kerwin J., as he then was, on the other hand, believed that
the main element necessary for a conviction under S. 60 was an
intention to incite people to violence or to create a public disorder.
Taschereau J., as he then was, while agreeing with the dis-
position of the case, i.e., ordering a new trial, expressly disapproved
of Kerwin
‘s. opinion. He did not believe that incitement to
violence was a necessary part of a seditious intention.
The trial judge, in instructing the jury, defined seditious in-
tention as “the publication or distribution of a pamphlet, or of a
harmful, injurious writing which may provoke hate and discord
amongst the different classes of His Majesty’s subjects.” 73 Nothing
was said about incitement to violence.
71 [1950] 1 D.L.R. 657, at p. 666.
72 [1938] S.C.R. 100, at p. 133.
73 [1950] 1 D.L.R. 657, at p. 673.
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HATE PROPAGANDA
Taschereau J. felt,
… there being no definition in our Code, of sedition and seditious libel
that it was clearly intended by Parliament to accept the English common
law definition as it existed in 1892.74
Rand 1. who played the key role in the Boucher decisions was
of the opposite opinion. He said that there was no authority
which held that the mere tending to create discontent among the
King’s subjects but not tending to issue in illegal conduct constitutes
sedition. Speaking of parts (4) and (5) Stephen’s definition of
sedition which purported to state the common law definition, Rand
J. said they,
… signify … the use of language which, by inflaming the minds of people
into hatred … is intended, or is so likely to do so as to be deemed to be
intended to disorder community life, but directly or indirectly in relation
to Government in the broadest sense: … (Emphasis added).75
What Rand J. meant was that for the crime of sedition as opposed
to the crime of public mischief, the denouncing of a segment of
society must be aimed directly or indirectly at government. This
definition of sedition effectively sterilizes it for use against hate-
mongers who seldom talk against the Government in any way but
speak solely against their target group.
In Boucher (1) Estey J. agreed with Rand J. and they both
would have quashed the conviction.
The result of Boucher (1) was that a new trial was ordered.
However, on a rehearing, the Supreme Court of Canada granted
Boucher an acquittal. In Boucher (2) the full court sat. Rinfret’s
C.J.C. judgment was the same as in Boucher (1). Kerwin J. adopted
what Rand J. had said in Boucher (1). He said:
The intention on the part of the accused which is necessary to constitute
seditious libel must be to incite the people to violence against constituted
authority or to create a public disturbance or disorder against such
authority.r6
Taschereau J. was persuaded to change his mind and adopted
as his definition of sedition a situation where the writing complained
of must in addition to being calculated to promote ill-will between
subjects be intended to produce disturbance or resistance to the
lawfully constituted authority.
Kellock and Estey J.J. followed the same line of reasoning as
that adopted by Rand J. in Boucher (1).
74 Ibid., at p. 677.
75 Ibid., at p. 683.
76 [1951] 2 D.L.R. 369, at p. 379.
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Locke J. also concurred with Rand J.
Cartwright with whom Fauteux J. (as they then were) agreed,
also did not accept as a definition of seditious intention “the pro-
motion of ill-will and hostility between Canadians” without a
qualification which was that,
… it must further appear that the intended or natural and probable con-
sequence of such promotion of ill-will and hostility is to produce disturb-
ance of or resistance to the authority of lawfully constituted Government.”
Mr. A. Brewin, a distinguished lawyer and Member of Parliament
made this comment on the Boucher cases:
It may now be taken therefore as the settled law of Canada that an intent
to create hostility and ill-will between different classes of subjects is not
enough to constitute the crime of sedition. In addition the intended or
probable consequences of the promotion of ill-will must be to produce a
disturbance of or resistance to the authority of lawfully constituted govern-
ment.. .s
It is settled therefore since the Boucher cases that a conviction
could not be had for the publication and distribution of hate
literature under the sedition sections of the Criminal Code. The
Boucher cases especially Boucher (2) define the law of sedition
so that it approximates the ‘clear and present danger test’ as
expounded by Holmes J. in Schenck v. U.S 7 9
In 1964, The Right Honourable John Diefenbaker received a
sample of hate propaganda. He raised this fact in Parliament and
in fact asked the then Minister of Justice, Guy Favreau, if the
law against sedition adequately dealt with the problem. The Minister
did not directly answer the question. However Mr. Gelber the
Honourable Member from York South in 1964 referred to the
Boucher case and especially to Mr. Justice Rand’s decision. It
was his (Mr. Gelber’s) contention that Rand J’s. view of sedition
as put forth in Boucher had later changed and as proof he quoted
from Mr. Rand as a Supreme Court Judge in Boucher (1) and
Mr. Rand the Dean of University of Western Ontario Law School,
upon his retirement. Mr. Justice Rand said:
Freedom of thought and speech and disagreement in ideas and beliefs
on every conceivable subject are of the essence of our life. The clash
of critical discussion on political, social and religious subjects has too
deeply become the stuff of daily experience to suggest that mere ill-will
as a product of controversy can strike down the latter with illegalitys 0
77 Ibid., at p. 409.
78 Brewin, Case Comment on Boucher v. The King 29 Can. Bar Rev. 193,
at pp. 195-196.
79 249 U.S. 47.
so House of Commons Debates, 1964, Vol. VI, p. 5978.
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HATE PROPAGANDA
The second quote is from Dean Rand, (as he then was). He said:
We are in danger of becoming fanatical about individual rights. We must
either accept the rule of reason or the rule of passion –
of hatred.
I sometimes wish we could forbid the importation of these hatreds
from other countries.8 ‘
Mr. Gelber went on to say that although the common law definition
of sedition might have dealt with the problem, the Boucher case
and S. 8 of the Criminal Code which abolishes common law offences
negates its utility.8 2
It was thought that s. 166,82a concerning the spreading of false
news was applicable, but if R. v. Carrier 83 represents the law with
regard to S. 166 of the Code it too is a dead letter in this area. In that
case the accused was initially charged with seditious libel based on
a document similar to that in the Boucher case. The accused demurr-
ed and the Crown abandoned its case because of the then recent
decision in Boucher (2). The Attorney-General of Quebec then
charged Carrier on the same facts with publishing false news
under S. 136 of the Code which became S. 166. The accused then
entered a plea of autrefois acquit and his plea was sustained by the
Quebec Court of King’s Bench, Criminal Side. The result of the case
is that an acquittal under the sedition section automatically bars
a conviction under S. 166. This is an unfortunate result in view
of the fact that 1) the offences appear in different parts of the Code,
the offences themselves
2) the penalties are dissimilar and 3)
are dissimilar.s4 The other problem with S. 166 is that the Crown
must prove the hatemonger knows the literature he publishes is
false and as has been pointed out,85 this is almost impossible
because most of these hatemongers really believe in the truth of
what they say. Furthermore S. 166 would only cover hate literature
but not oral statements made by the hatemonger.
S. 248 8a of the Criminal Code, i.e., concerning criminal defam-
atory libel, is inapplicable because it is aimed only at individuals and
not groups. The relevant part of that section reads “that is likely
to injure the reputation of any person.”
81 Ibid.
82See Hage, The Hate Propaganda Amendment to the Criminal Code, 28
Faculty Law Review, 63, at p. 64.
82a Now section 177 of the 1971 version of the Criminal Code.
83 (1953) 16 C.R. 18.
84See Schmeiser, Civil Liberties in Canada, (London, 1964).
85 See note 82, supra.
ssa Now s. 262 of the 1971 version of the Criminal Code.
McGILL LAW JOURNAL
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The section of the Code dealing with riots and unlawful assembly
is of little assistance because it can be used only where there are
two people in addition to the speaker who can be proved to have
assembled with intent to carry out a common purpose; a Nazi
operating on his own can not be reached.
Mr. Hage in his recent article on the utility of Bill C-3, 0
.already enacted into law, pointed out that the section of the Code
which comes closest to meeting the problem of the vocal hate-
monger is s. 160(a)(i) 6a which reads:
Everyone who not being in a dwelling house causes a disturbance in or
near a public place by fighting, screaming, shouting, swearing, singing
or using insulting or obscene language is guilty of an offence punishable
on summary convictions 6a
However, to sustain a conviction under this section, the disturbance
must actually have been caused by the hatemonger. Short of this,
he can say whatever he wants.
Dean Tarnopolsky placed much faith in S. 160’s ability to deal
effectively with oral group libelous statements.87″ He believes S. 160
renders S. 267B of the new amendment to the Criminal Code
superfluous.17 a He sees the evil to be remedied is not the defamation
of groups but the threat to public order. It should not matter
what occasions the breach of the peace except to fix the fault.
Furthermore he cannot see how the use of language which incites
hatred against a collectivity could not be insulting and obscene.
The Cohen report summarized the utility of the Code as follows:
[A] group seems to be protected by the Code provisions on “breach of
the peace” only from oral insults in public places and where the insults
are so strong as to be likely to cause a breach of the peace (1) either
against the group or (2) by the group itself, in reaction to the insult.88
John J. Robinette and Arthur Maloney, have stated in opinions
asked for by the Canadian Jewish Congress that the Criminal Code
provisions as they were before Bill C-3 could not adequately control
hatemongering, and accordingly the Canadian Jewish Congress made
certain proposals to the Cohen Committee. s0
86 Supra, n. 82, at p. 63.
86aNow s. 171(a)(i) of the 1971 of the Criminal Code.
s7 Tarnopolsky, Freedom of Expression v. Right to Equal Treatment, (1967)
U.B.C.L. Rev. – C. de D., p. 43.
87a Now Part of s. 281 of the 1971 version of the Criminal Code.
88 The Cohen Report, at p. 41.
89 Contra, n. 87. Gropper, Hate Literature: The Problem of Control (1965),
30 Sask. B.R. 181, at p. 198.
No. 4]
HATE PROPAGANDA
In addition to the Criminal Code provisions, s. 7 of the Post
Office Act grants to the Postmaster-General wide powers to prevent
mailing of any material he reasonably believed to be obscene,
blasphemous or seditious. s. 7 provides for a review of the Post-
master General’s interim prohibitary order. In 1964 and 1965 the
Postmaster General invoked s. 7 against a publication put out by
an American organization called the National States Rights Party.
The latter appealed and lost. Despite the apparent success of s. 7
there are many practical reasons why s. 7 is inadequate to curb
hate through the mail, not the least of which is detection of hate
propaganda in the first place. With regard to mailing of hate
propaganda, S. 153 S9a of the Criminal Code makes it an offence to
mail matter which is obscene, indecent, immoral or scurrilous.
But it too has been a dead letter in this area. 0
The Cohen Commission could find nothing in the Criminal
Code which would make advocating and promoting genocide a
crimef’ Dean Tarnopolsky takes issue with this finding of the
Commission as well and asks why advocating and promoting
genocide is not covered by ss. 22, 407(a), and 408(1)(a) 91a and
the homicide sections of the Code. The short answer is that the
code for the most part deals with offences against individuals,
for example S. 248 91b discussed above. The section on murder
deals with a crime against persons not groups. Furthermore, it
is my contention that the sections mentioned by Dean Tarnopolsky
are not subtle enough to catch the professional hatemonger who
advocates genocide by such diabolical means as sterilization of
the entire male population of the target group.
Part IV – Background And History Of Anti-Hate Law
The anti-hate law was born in June of 1970 when after being
given 3rd reading and being passed by the House of Commons
Bill C-3 was given Royal assent. Its conception really began as
far back as 1953. In that year a delegation of the Canadian Jewish
Congress appeared before a joint committee of the House of Com-
mons and Senate on the revision of the Criminal Code. The dele-
gation asked for a revision of the sedition section so as to negate
89a S. 164 of the 1971 version of the Code.
90 Hage, supra, n. 82, at p. 65.
01 The Cohen Report, at p. 62.
91a See now ss. 22, 422 and 423 of the 1971 version of the Criminal Code.
91b s. 262 of the 1971 version of the Criminal Code.
McGILL LAW JOURNAL
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the Supreme Court’s interpretation of sedition in the Boucher
cases. Nothing was done however for ten years until about 1963, when
there was an overt revival of Nazism in Canada, U.S. and England,
and especially in Ontario as far as Canada was concerned. During
that interval, the attitude of the Canadian Jewish Congress was
to fight hatemongers passively, using the “quarantine” method. How-
ever, from 1963 on they dropped that tactic because it had obviously
failed to check the spread of anti-semitism. It began to work for
legislation at the Federal level to deal with this problem. Legislation
had to be Federal, since in Saumur v. A.-G. Quebec 92 the Supreme
Court of Canada decided that freedom of religion and of speech
is a matter coming within a class of subjects given exclusively to
the Federal Government either by virtue of 91(27) of the B.N.A. Act,
the criminal law power or the P.O.G.G. clause.9a This was the as-
sumption underlying the decision of Hartt J. in R. v. Beattie.93 In that
case, a provision prohibiting any person from using any language in a
city park likely to stir up hatred against any section of the public
distinguished by colour, race, religion or ethnic origin, contained
in an amendment to a municipal by-law was held to be an invalid
exercise of the power to prevent infringement on the enjoyment
of the park-using public or to provide for the protection of parks.
The provision was not in its pith and substance park protection.
Hartt J. did say however that the by-law drafted in a more restricted
way so that its scope would be clearly confined to the legitimate
object of park protection could well have brought about a different
result.
The strong lobbying for an anti-hate law was reflected in the
House of Commons as early as 1964. In that year Mr. Orlikow
asked the Minister of Justice, (Guy Favreau),
Has the Minister given consideration to the hate literature which is now
being distributed in various cities? Does the government consider that
there is at the present time legislation which will prohibit this kind
of literature being distributed through the mails … ?94
To which the Minister responded,
… the possibility of amending the Criminal Code was referred to the
criminal law section of the conference of uniformity of legislation in
Canada in 1962. It reported that while the objective sought to be attained
was eminently desirable, no recommendation was made because no formu-
92 [1953] 2 S.C.R. 299.
92a The Peace Order and Good Government Clause.
93 [1967] 2 O.R. 488.
94 House of Commons Debates, 1964, Vol. I, p. 132.
No. 4]
HATE PROPAGANDA
la devised would deal adequately with the problem without affecting
the general freedom of expression of opinion in an adverse wayP5
The Government then moved to find the right formula. It set
up a committee to study hate directed against collectivities under
the chairmanship of Dean Maxwell Cohen of McGill University’s
Law Faculty. The Cohen Committee published its report in 1965.
It concluded that:
However odious, the behaviour of these groups and however offensive
the materials they distribute, the Committee believes that none of the
organizations represent
[1965] a really effective political or
propaganda force and that in any case, very few individuals as such
are invelved.P6
today
But is would nevertheless be unwise to ignore them because though
few in number, they represent a potential danger that cannot
be measured by statistics alone. The Cohen Committee therefore
recommended that legislation should be passed and set out the
framework which, with minor changes, has become the present
amendment to the Criminal Code. In 1966 Bill S-49 was introduced
in the Senate. It never reached the discussion stage in that year.
In 1967 it was re-introduced as Bill S-5 but again it melted into
obscurity. In 1968 the Liberal Party under Mr. P. E. Trudeau
realized a substantial victory at the polls. Mr. P. E. Trudeau was
a member of the Cohen Committee in 1965 and so it is not surprising
that from 1968 on the movement to pass an anti-hate law gained
momentum rapidly. By February 1969 the Senate heard deputations
for and against the anti-hate bill which was then Bill S-21. In the
spring of 1969, the Senate passed Bill S-21 with various changes.
It included “religion” as a criterion under the definition of “iden-
tifiable group” and it reserved to the Attorney-General of the
Province the right to approve the initiation of prosecutions. In
the fall of 1969 the Bill entered the House of Commons as Bill
C-3, a Government Bill. When
it came before the House for
third reading on April 13, 1970 the vote was 89 pro and 45 contra,
the total number of M.P.’s voting being 134, with 127 being con-
spicuously absent that day. After a motion to get the Bill referred
to the Supreme Court for an opinion on its constitutionality, which
failed, the Bill became law in June 1970 when it was given Royal
Assent.
During the time between 1964 and 1968, there were other Bills
introduced by Private Members, which were designed to deal with
hate. In 1964 Bill C-21, re-introduced as Bill C-30 in April 1965 was
95 Ibid., at p. 133.
96 The Cohen Report, at p. 14.
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[Vol. 17
put forth as a possible solution to fight those who advocated
genocide. It would have provided the death penalty for anyone
who with intent to destroy an ethnic or religious group in whole
or part, kills a member of that group. There would be a ten ‘year
jail penalty for anyone who with the same intent mentioned above
hurt a member of the group or intentionally inflicted on the group
conditions of life calculated to bring about its physical destruction.
Publishing hate literature would bring a five year jail term and
finally there were 3 possible penalties for aiding and abetting
anyone to commit any one of the aforementioned crimes, the
penalties varying in degree in direct proportion to the severity
of the crime.
In 1965 an amendment to the Post Office Act was suggested
by Bill C-43. It would have amended s. 7 so as to create an offence
of using the mails to distribute literature intended to bring hatred,
ridicule or contempt against any group by reason of race, national
origin, religion or colour but exempted from this provision anyone
who used the mail pursuant to S. 151(4) 96a of the Criminal Code.
Mr. Nicholson, the Postmaster-General in 1965 said this concerning
Bill C-43 at the time it was given second reading in the House:
I will admit frankly that in searching for a solution to this problem
we are on the horns of a dilemna. If on the other hand we do not take
effective action against these nefarious traffickers in hate literature this
traffic is likely to continue. On the other hand, if we do take strict mea-
sures to shut off the use of the mails to those who deal in hate literature
we shall almost certainly prejudice the rights and freedoms of the ma-
jority of Canadians who use our mail for decent purposes.9 7
He also pointed out that were Bill C-43 to be enacted it would
drive hate-peddlars underground by forcing them to resort to the
use of first class mail which the postal authorities have no power
to open.
In that year Bill C-16 was also before the House of Commons.
It would have repealed S. 60 of the Criminal Code and would have
substituted a section which would include in the definition of
seditious intention “anyone who wilfully promotes hatred or con-
tempt against any group of persons or any person as a member
of any group in Canada.” In fact this was a legislative attempt to
reverse the Boucher decision.
Another attempt at modifying the Code was Bill C-117, which
also appeared in 1965. That Bill was designed to modify S. 248(1) 97a
96a See s. 162 of the 1971 version of the Criminal Code.
97House of Commons Debates, 1964, Vol. IX, p. 9158.
97a S. 262(1) of the 1971 version of the Criminal Code.
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HATE PROPAGANDA
of the Code by adding to the definition of defamatory libel, group
defamatory libel. Sections S. 251A was to be added to give the
court power to remand a defendant charged under the new S. 248(1)
for observation for at least thirty days to see if he were mentally
ill. If the court did not see fit to so remand the accused and if he
were subsequently convicted under S. 248(1) of group defamatory
libel then then the court had to remand him before passing sentence.
Part V – Analysis Of Bill C-3 New Sections 267 A, B, C
Of The Criminal Code 97b
A. S. 267A – Genocide (s. 281.1 of the 1971 Criminal Code).
Section 267A makes it a crime for anyone to advicate or promote
genocide. This has been the least controversial section of the new
law. The Cohen Report had pointed out that:
… although Canada is a signatory of the United Nations Convention on
Genocide and is bound thereby to implement anti-genocide measures in
its domestic legislation, Canadian law so far has not been amended in
accordance with the Convention.
At least one notable jurist took issue with that statement, 9 but
for the most part it can be said that there was only a trickle of
opposition to S. 267A. The Cohen Report said the prohibition
against advocating or promoting genocide should be absolute because
the act is wrong absolutely. That statement is hard to argue with.
Even Mr. Wooliams, the Member from Calgary North who was
the bitterest opponent of Bill C-3, did not oppose the Genocide
section. In fact during its life in the House, Mr. Wooliams intro-
duced an amendment to Bill C-3 that would have eliminated all
but the Genocide section.
There were some modifications made to S. 267A between its
inception and final passage. One such modification concerned the
very important section which defines “identifiable groups”, i.e.,
S. 267A(4). When Bill C-3 was still in the Senate as Bill S-5, this
subsection had excluded from the definition the adjectives “religion,
language and national origin.” Language and national origin did not
find their way back into the section because of the tense situation
Canada was experiencing while Quebec was taking a new hard look
at its role as a Canadian Province. The deletion of these words
was to avoid rocking the boat.
97bNow see ss. 281.1, 281.2 and 281.3 of the 1971 version of the Criminal Code.
98 The Cohen Report, at p. 37.
09 Dean Tarnopolsky, Dean, Faculty of Law – University of Windsor.
McGILL LAW JOURNAL
[Vol. 17
However the word “religion” presented a different problem.
Mr. MacGuigan was then apprehensive that the deletion of “religion”
as a criterion of identifiable group might exclude important minority
groups from the law’s protection.
The Canadian Jewish Congress also considered it to be a serious
omission that “religion” was deleted from the section. It felt there
were no apparent reasons for not including religion within the
section and very good reasons for its inclusion. Statistics taken
in 1961 showed 32% of the Canadian Jewish population were
accounted to be Jewish by religion only or by ethnic origin. The
rest were content to be identified with both categories. What
emerges from these facts is that however they may differ on the
question of ethnic origin, Jews clearly constitute a “religious” group.
Another change was made in S. 267A(2) where the word “means”
was substituted for the word “includes” after the word “genocide”.
This was done in order to restrict the definition of genocide to
two particular acts, namely what are now ss. (a) and (b) of
S. 267A(2).
It is clear that this section unlike the law heretofore would
catch the hatemonger who advocated genocide by sterilization
of the entire male population.
There is no doubt either that the definition of “Genocide”
is
wider than that suggested by the Cohen Report. This has led to
the criticism by Dean Tarnopolsky that the section is ambiguous.
He felt that construed literally, S. 267A would make the advocacy
of any war an offence, as war is an act committed to destroy a
group of persons. That is too superficial an examination of the
section. In the first place S. 267A(4) defines identifiable group
as “any section of the public” (Emphasis added) and a reasonable
argument can be made which would limit public to the Canadian
public. This view is reinforced by section 267B 7(a) which defines
“public place” as any place where the public have access. In the
second place, the person advocating war must have intent to destroy
in whole or in part an identifiable group. A person advocating
war may have many other intents, not including the aformentioned,
to advocate war; for example, to regain possession of land, to free
political prisoners, and they would not be caught under S. 267A.
In addition, those who do wish to engage in war with intent to
kill the enemy have no intent to kill members of an identifiable
group within the meaning of S. 267A(4) as national origin is not
a criterion of identifiable group. Thirdly there is the built-in safe-
guard that to launch a prosecution under this section, a condition
No. 4]
HATE PROPAGANDA
precedent is the consent of the Attorney-General of the Province.
More will be said of this requirement later and fourthly there is the
operation of the War Measures Act which if re-activated may
suspend the operation of S. 267A..
Though the section may be wider than perhaps is necessary,
even to meet the requirement under the U.N. Convention, the
section has little if any potential for abuse and positively in no
uncertain terms puts the stamp of disapproval on all those advo-
cating what can only be described as the most heinous and horrible
crime imaginable.
B. Promotion of Hate in a Public Place
Section 267B 99a has been one of the main targets for those
who attack the law as a violation of the freedom of speech, as-
sembly and association guaranteed in the Bill of Rights. Mr. John
Turner the Minister of Justice when Bill C-3 was enacted into law
said that the Bill was designed to create three new offences. First
the offence of advocating or promoting genocide; second the offence
of public incitement of hatred likely to lead to a breach of the peace,
and thirdly, the wilful promotion of hatred. S. 267B deals with
the latter two offences. Dean Tarnopolsky found S. 267B(1) to be
superfluous in view of S. 160(a) (i) 99b of the Code. However the
two sections are not the same. The former has a preventive clause
built in while the latter has not. S. 160(a)(i) requires that actual
disturbance be caused by an accused. S. 267B(1) however allows
the police to arrest anyone they on reasonable and probable grounds
believe to be communicating statements …
likely to lead to a
breach of the peace. This section however is not drafted so wide
as to allow the police to arrest any speaker when they do not
like what he is saying. There are four distinct parts to the section
and all must be satisfied if a conviction is to be obtained. (1) The
speaker must communicate statements in a public place; (2) he must
incite hatred; (3) against an identifiable group; (4) such incitement
must be likely to lead to a breach of the peace.
However, an attack is made on the section because it creates
what has been dubbed a “heckler’s veto”. The audience by their
behaviour decides whether any speaker violates the section. Prof.
Arthurs believes there should be a division made between a speaker
who has violence as his object and the speaker who is the victim
9 a Now section 281.2 of the 1971 version of the Criminal Code.
9Db Supra, n. 86a.
McGILL LAW JOURNAL
(Vol. 17
of a violent audience. No such distinction was made by Lord
Parker in Jordan v. Burgoyne, supra, when he said that a speaker
takes his audience as he finds it. If however S. 267B(1) is super-
fluous because of S. 160(a)(i) might not the same criticism be
made of the latter section. The language of S. 160 is “Everyone
who … causes a disturbance” whereas S. 267B(1) reads “Everyone
who.., incites hatred. In the former case the accused must have
actually caused the disturbance whereas in the latter the accused
must have actually incited hatred. If S. 267B(1) creates a heckler’s
veto surely Section 160(a)(i) does the same yet no one has criti-
cized S. 160(a)(i) on this ground.
Mark MacGuigan takes the opposite view of S. 267B(1). While
agreeing in principle that the law must not allow the audience to
determine the criminality of any speech or assembly, he believes
the four criteria built into the sectiofi are adequate safeguards.
The section is broad enough to cover a member of a minority
group speaking in a public place so as to incite hatred against a
majority group, for example a Jehovah’s Witness speaking out
against the Roman Catholic religion in Quebec. At first blush then
the section seems open to abuse because presumably it would
prevent anyone who is a member of a minority group from airing
legitimate grievances in public. However on closer examination
it is found that this is not the case. What the law is aimed at is
preventing the spread of hate. There is a vast difference in putting
forth legitimate grievances and speaking so as to incite hate. Further-
more by S. 267B(7) (b), “Identifiable group” has the same meaning
as it has in S. 267A(4). That definition does not include a group
distinguished by politics, language or national origin. Therefore a
minority who spoke out so as to incite hate against members of
these groups would not be caught by 267B(1) although inciting
hate against the Government undoubtedly would come under S. 60,
i.e., sedition.
C. Wilful Promotion of Hatred
S. 267B(2) describes the offence of wilfully promoting hatred
against an identifiable group other than in private conversation.
(Emphasis added). That section should be read in conjunction
with S. 267B(3) which spells out four distinct and separate de-
fences to a charge under S. 267B(2). Shortly, the defences under
S. 267B(3) are (1) absolute truth of statements;
(2) bona fide
opinions on a religious subject; (3) public benefit; (4) bona fide
pointing out for the purpose of removal, matters tending to pro-
No. 4]
HATE PROPAGANDA
duce ill-will towards an identifiable group. If these four defences
are seen as safeguards towards what might otherwise be a law
too wide in scope, then there are two additional safeguards as well.
The first is found in S. 267B(2) itself. The crown in any prosecution
under S. 267B(2) must prove beyond a reasonable doubt that the
accused wilfully promoted hate. The fact that inadvertently, a
person may have done so would not suffice. The other safeguard
appears in S. 267B(6) where in order to prosecute under subsection
(2), the consent of the Attorney General is necessary.
Mr. MacGuigan did not deny that S. 267B(2) cuts into freedom of
speech but he argues convincingly that this is a necessary intrusion.
He further contends that this legislation provides safeguards which
were not present at common law. The common law, in its criminal
aspect never allowed truth as a defence to a defamation charge.
This legislation specifically does so allow. The Canadian Jewish
Congress pointed out that while truth is a defence here, it is not
in other areas of the criminal law, for example sedition, scurrility
or obscenity. Mr. Otto, another Member of Parliament took issue
with the fact that truth was made a defence. He believed it will
make the legislation ineffective and that in addition it was un-
necessary in view of the public benefit defence. This criticism is
not well founded as most statements of hate do not feed on truth
but rather thrive on lies. For example some hate propaganda ac-
cused Jews of drinking the blood of Christian babies. This lie has
been thrust upon gullible receivers of such trash for hundreds of
years. Surely the defence of truth of such a statement could never
successfully be invoked.
It is to be noted that the Race Relations Act of England does
not allow for a defence of unqualified truth nor is there a public
benefit test.
The defence that most people charged under S. 267B(2) will
rely on in the end is S. 267B(3)(c), the public benefit test. Com-
menting of this defence one writer said:
By far the most important of these conditions [defences] is the rest
of public benefit. What is public benefit? When is promoting hate justi-
fiable? There are a number of racial groups in Canada experiencing strained
relationships, English and French, Portugese and Italian, Jews and Arabs,
Indians and Whites. Each is served by its own press. In the past each
has printed comments that would qualify as promoting contempt. Under
the bill [C-3] each would have to rely for protection on the ‘public benefit’
clause.
The writer went on to argue that,
McGILL LAW JOURNAL
[Vol. 17
… public opinion is always changing and with it public benefit. What
was regarded as an exercise of free speech could be today a criminal act.1 00
It is just this type of situation that the defence of public benefit
is designed to protect. However the editorial comment concern-
ing the changing attitudes of the public begs the question because
the act is designed to fight hate and its aim is to prevent the spread
of hate ever being for the public good. However statements made
in the reasonable belief of their veracity, in order to benefit the
public or a legally recognizable section there6f should be protected.
It may be argued that the section represents a loophole in that
hatemongers such as John Beattie or Collin Jordan are so demented
that they really believe that what they say is true and that they
are the saviours of the people thereby procuring for them a public
benefit. No court, in my opinion, would interpret this section so
naively. The courts would not apply a subjective but rather an
objective test to this defence. It would ask whether a reasonable man
in the accused’s position would believe in the truth of the statement.
In most cases the answer to that question would determine the
applicability of that defence without requiring the court to discuss
whether or not the statements were made for a public benefit. The
defence of public benefit is modelled after S. 259 of the Criminal
Code where that defence is provided to an action of Criminal
defamatory libel. Section 267B(3)(b) is the most straightforward
of the defences and therefore deserves the least amount of comment.
What it is designed to exempt from prosecution is bona fide inter-
changes of ideas on religious topics. Inter-faith debates would come
under this defence but it is broader in scope than that. It would
protect any individual discussing a religious point but he must
do so bona fide, which probably means without malice. It is hard
to see how, if this defence proved successful, a person could ever be
wilfully promoting hatred anyway and so this defence may be
unnecessary.
As S. 267B(3)(c) has a model in the code, so does S. 267B(3)(d)
which is patterned after S. 61 (d) which is a defence to sedition under
S. 60. This article is a prime example of statements qualifying under
this defence. The key words in this defence are “for the purpose
of removal”. The section also requires a bona fide intent though
in view of the key words just mentioned, the inclusion of good
faith seems superfluous. This section may also be included in the
public benefit section which exempts from prosecution statements
made by a person for the public benefit. Surely an article which
“0 Toronto Globe & Mail, Thurs. Feb. 26, 1970.
No. 4]
HATE PROPAGANDA
reproduces hate literature, but only for the purpose of inquiring
how best to deal with it as a problem, is for the public benefit as
well as tending to point it out in order to remove such hate literature
from the public.
One area yet to be defined by the courts will be the exact scope
of the phrase “other than in private conversation” in S. 267B (2).
This is important because statements made in private conversation
no matter how full of hate they are, are not illegal under S. 267B
(2). The key word in the phrase is “private”. If three or more people
engage in a hate debate in a private home, are participants liable
under this section? Does “private” encompass the quantity of peo-
ple involved or is it also concerned with place and time.
Mr. Hage believes that the word private will be interpreted as
it has been in S. 149A I00a of the Code as “any act committed by
no more than two people not in a public place”. If this very narrow
scope is applied in S. 267B (2) then what you say in your own
home may be liable to criminal prosecution if said before two or
more people and if what you said wilfully promoted hate against an
identifiable group. It was this fear which prompted Professor Ar-
thurs to say “if the law has no place in the bedrooms of the nation
it should have no place in its parlours or meeting halls”. With all
due respect to Professor Arthurs however what he said is a non
sequitur. The new law on homosexuality has kept the law out of
the nations bedrooms only under very limited circumstances, where
it was felt what two consenting male adults decide to do in private
is not to the public detriment. However, Parliament, which is the
spokesman for the nation, in its infinite wisdom has decided that
hatemongering is so detrimental to the public, i.e., to those who
are so gullible or misguided as to believe the lies, and to the target
groups which feel the pain of such verbal poisoned arrows, that
it has decided that the law does in this case have a right to enter
the “halls and meeting places” of the nation. Mr. Trudeau has said:
… the most basic (of the ideals of society) is the freedom and dignity
of the individual. If we as individuals do not have the opportunity
to stand erect, to retain our self-respect, to move freely throughout our
country then we will not have made use of the law as we should.101
It is this principle that justifies such an intrusion as there is
under S. 267B (2).
There is a very practical fact to keep in mind when considering
S. 267B(2). It will be very rare that anyone making statements
100a See s. 158 of the 1971 version of the Criminal Code.
101 Toronto Globe & Mail, April 20, 1970.
McGILL LAW JOURNAL
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of group hate will be caught in his own home. The problem of proof
will as a practical matter be insurmountable. More often than not
section 267B(2) will apply where A speaks to B, C and perhaps
a few other sympathetic listeners on a street corner or a bar where
there is not likely to be a breach of the peace. Someone overhearing
A, may report the incident the result of which, if the Attorney
General consents may lead to a prosecution under the section. The
greatest safeguard to the potential abuse of police powers under
S. 267B(2) is the consent of the Attorney General requirement under
S. 267B(6). More will be said of this section further on.
(6)
When S. 267B(2), read with S. 267B(3),
is subjected to
analysis and criticism, the most that can be said of its potentially
wide scope is that it is a necessary evil. This law is not really
introducing something radically new into our jurisprudence. There
have been laws against fraud and misrepresentation for centuries,
in the English common law. This new law against group hatred
would make our laws concerning fraud recognize human values
as well as proprietary rights. The Canadian Jewish Congress has
asked “if a defamatory statement is made deliberately about an
identifiable group with no reasonable grounds to believe in its
truth, where its discussion is not for the public good, what possible
protection is owed to such communications of hate?”
An accused charged under S. 267B(2), in addition to the four
defences outlined in S. 267B(3), in addition to the consent of the
Attorney General as required by S. 267B(6), and in addition to
the Crown having to prove he wilfully did the illegal act, is entitled
to all the procedural safeguards of the criminal law, the most
important of which is the burden which rests on the Crown to
prove beyond a reasonable doubt that he did the illegal act.
Section 267B(4) provides for the disposal of hate material by
the presiding judge only if and when the accused is found guilty
under ss. 267A or 267B(1) or (2). Disposal is to take the form
of forfeiture to the Crown in the Right of the Province for disposal
by the Attorney General. There are three important aspects of this
subsection. First, the section is not an example of pre-censorship
because this penalty applies after an accused is found guilty of
promoting hate or genocide. Second, this penalty is in addition to
the other penalties provided in ss. 267A, 267B(1), and (2). Third,
this penalty is not mandatory but only discretionary. Why this
penalty should be discretionary may at the first instance be question-
able, for after all if A has been found guilty of promoting hate
against an identifiable group, through the distribution of pamphlets,
it is just as important to dispose of the pamphlets as it is to
No. 4]
HATE PROPAGANDA
sentence the disseminator. However the reason for the discretionary
nature of S. 267B(4) is because it has potentially a very wide scope.
What may be forfeited is “anything by means of or in relation to
which the offence was committed.” Presumably the printing press
which produced the pamphlets may also be forfeited. If the accused
owned a car which he used when distributing the hate literature,
that is too within the scope of S. 267B(4). To mitigate the potential
harshness of the section, forfeiture is made discretionary, a dis-
cretion which will be exercised judicially in the courts.
S. 267B(7) is another definition section. Subsection C gives a
very wide meaning to “statements.” By that subsection statements
include both oral and written words, tape recordings, records, hand
signals or other gestures. Subsection (d) which defines “com-
municating” is important because it is defined so as to specifically
include telephone hate messages. This probably was the result of
the pre-recorded taped hate messages scheme devised by John
Beattie and his henchmen whereby anyone could dial a telephone
number and hear such a hate lecture. This now is outlawed by
S. 267B(7) (d).
D. Seizure of Hate Literature
The second area of this law which has been extensively attacked
is S. 267C,1 1a on the grounds that it is an unnecessary and perhaps
unconstitutional attempt at precensorship. S. 267C(1) allows a judge,
satisfied by information under oath, when there are reasonable
grounds for believing that any publication which is intended to be
sold or distributed freely is hate propaganda, to issue a warrant
authorizing the publication’s seizure. Subsection (2) states that
the judge shall issue a summons to the occupier of premises where
the publication was stored, to appear in court and show cause why
the publication should not be forfeited. The burden of proof is
squarely on the occupier once the matter has been seized by virtue
of a warrant under S. 267C(1).
Subsection (3) allows the owner and author of the material
seized to appear with their lawyers to oppose the forfeiture of the
publication. Presumably they would be in no better position than
the occupier of the premises in that they would have to discharge
the burden of proving that the material should not be forfeited.
Subsection (4) allows the court to order the forfeiture of the
publication in the same way it may do under ss. (4) of S. 267B,
ioia Now s. 281.3 of the 1971 version of the Criminal Code.
McGILL LAW JOURNAL
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but the all important difference in the two sections is that under
S. 267(c) (4) no one may have been convicted of any offence within
S. 267A or B whereas S. 267B(4) only applies where there has
been a conviction under S. 267A or B.
S. 267C(4) only applies if the court is satisfied that the publi-
cation is hate propaganda. The question arises, by what standard
must the court be satisfied? Under S. 267(c)(1) the judge must be
satisfied that there are reasonable grounds. Is that standard to be
applied under subsection (4)?
Subsection (5) allows the court to return the publication if
the court is satisfied that the publication is not hate propaganda
and the time for appeal is gone. Subsection (6) provides for an
appeal from any order made under ss. (4) or (5) by any person
who appeared in the proceedings. Subsection
(7) provides the
requirement of the consent of the Attorney General before proceed-
ings may be instituted under S. 267C.
that,
Mr. Hage describes the danger inherent in S. 267C in the fact
… there is a large distinction between what might be classed as hate,
propaganda which is often by nature politically oriented, and what might
be ruled obscene. The danger is that the law might not be used to seize
‘hard core’ hate propaganda but rather inflammatory political literature
which might prove offensive to a party or person in power. 02
Mr. Hage’s reference to obscenity is due to the fact that S. 267C
is modeled very closely after S. 150A of the Criminal Code which
deals with the procedure of forfeiture of obscene literature. In fact
subsection for subsection the words are nearly the same in ss.
150A 0 2
a and 267C. The procedure outlined by each section is iden-
tical, and there is no doubt that the courts will look to cases decided
under S. 150A, such as there may be, in deciding cases under S.267C.
It must be pointed out that Mr. Hage’s fear of S. 267C is totally
without merit as his hypothesis deals with politically inflammatory
literature. Such a publication would not be within the purview of
S. 267C because under that section, only a publication which is
hate propaganda may be seized. Hate propaganda is defined in
S. 267C(8) (c) as any writing… that advocates or promotes genocide,
as it is defined by S. 267A(2) or the communication of which…
would constitute an offence under S. 267B. Both Sections 267A and
B have as part of their respective offences, the term “identifiable
group” which has been defined so as to exclude a group distinguished
102 Hage, supra, n. 82, at p. 71.
l02a Presently s. 160 of the Criminal Code.
No. 4″1
HATE PROPAGANDA
by national origin or politics. Therefore an attack upon a political
group could never be regarded as hate propaganda within S. 267C.
Hate directed against a party or person in power would probably
come within the scope of sedition under S. 60 of the Code.
There are further problems with S. 267C. Dean Tarnopolsky has
asked if the defences provided in S. 267B(3) also apply to the
forfeiture proceeding under S. 267C(1)? If they did not, there
might occur a situation where for example books such as Mein
Kampf might be seized as hate propaganda even where it were
used only as a political science or history textbook. Were that the
case, even this author would be forced to say the section intrudes
too far into the realm of freedom of speech, thought and ideas.
But happily, this problem will only be at the most fictional.
There are two reasons for arriving at this conclusion. One is that
the consent of the Attorney General is required before instituting
proceedings under S. 267C. If the books, admittedly hate propa-
ganda were to be used as text books, probably at the university
level, the Attorney General would not likely give his consent.
In the second place, to be hate propaganda under S. 267C it
must be such as to constitute an offence under Section 267B. The
preamble to S. 267B(3) states: “No person shall be convicted of
an offence under subsection (2). . .” Therefore the defences provided
for in S. 267B(3) are incorporated into S. 267(c)(1) by virtue of
S. 267C(8)(c). This being the case, either the public benefit test
or more certainly the removal defence found in ss. 267B(3)(c)
and (d) respectively would apply so that the publication even of
Mein Kampf would not be hate propaganda for the purpose of
seizure under S. 267C(1).
Were it not for section S. 267C(4) there would be a third reason
why this problem would not arise. S. 267C(2) provides that the
occupier need only show cause why matter seized should not be
forfeited. It seems that reasonable satisfaction of this section would
be that the admitted hate propaganda is being used for educational
purposes and not to instill hate in anyone against anyone. However
this line of argument is precluded by S. 267C(4) which forces a
judge to seize material once he is satisfied that it is hate propaganda,
regardless of the use that is being made of it.
Though the offence embodied in S. 267C(1) may seem harsh
and unduly burdensome, it benefits from safeguards, that lessen
the burdens and do away with potential abuses that might otherwise
occur from a misapplication of the section. These safeguards are
(1) the prior consent of the Attorney General, (2) that the defences
McGILL LAW JOURNAL
[Vol. 17
in S. 267B(3) are incorporated into 267C and (3) S. 267B(6)
providing for an appeal to the Court of Appeal of the Province.
At different stages of this analysis, the fact that the prior consent
of the Attorney General was necessary before instituting proceedings
was mentioned with favour and approval. Mr. Hage says the
Attorney General presumably means the Attorneys’ General of the
Provinces. Though Attorney General is not defined in S. 267, it is
defined in the Criminal Code under s. 2(2) as the Attorney General
of a Province. Therefore Mr. Hage’s presumption is correct.
While the anti-hate law was in Parliament as Bill C-3 Mr.
Woolliams, its chief opponent took issue with those sections requir-
ing the prior consent of the Attorneys General. His fear was that
it may be abused by being applied at their pleasure and convenience.
With respect, that fear is another bogey-man. An Attorney General
is a politico-legal animal. He would not dare use his consent power
haphazardly or irresponsibly because as a member of the provincial
parliament and cabinet he is responsible to the former and to the
people who will decide whether or not to elect him to Parliament,
a condition which must be fulfilled before being appointed Attorney
General. At the same time he is a legal animal, probably well
informed as to the chances of a conviction if he gives his consent
to proceed with a prosecution.
The consent of the Attorney General is a condition precedent
in ss. 267A, B(2) by virtue of B(6), and C. It is conspicuously
not necessary to lay a charge under S. 267B(1). The Honourable
Mr. Turner explained the reason for this distinction and the function
of the Attorney General’s consent. He said,
Then there is the added protection in those two offences [i.e., 267A, and
267B(2)] that no proceeding can be taken under either offence without
the consent of the Provincial Attorney General. That restriction is not
placed upon the second offence of public incitement to hatred likely to
lead to a breach of the peace. Where a breach of the peace is involved
obviously you have a potential unlawful assembly or a potential riot and
you have no time to get the consent of the Attorney General of the Province
before making an arrest. 03
He went on to say that the function of the Attorney General
in the former two offences, i.e., added also in S. 267C is that
vexatious, frivolous and mischievous proceedings would not be
available to a private citizen who wanted to undertake prosecutions.
A similar provision is found in England’s Race Relations Act, where
lack of the prior consent of the Attorney General barred recovery
to the plaintiff suing the B.B.C.
13 Supra, n. 38, at p. 5553.
No. 4]
HATE PROPAGANDA
Part VI –
Summary – Herein Concerning The
Utility Of The New Anti-Hate Law And
Other Related Items
It is my conviction that the real criticism of the Act is founded
on two grounds, which are not totally distinct. The first is that
the Act violates certain freedoms guaranteed under the Canadian
Bill of Rights, which has been law in Canada since 1960 and has
recently been given new life.14 The second criticism is based on the
argument that the new law, while meaning well is useless and
then the first criticism is brought in when it is argued that the
act is not only useless but potentially harmful. If these arguments
are not well founded, then the nit-picking that lawyers love to
indulge in when every new piece of legislation is passed is only
of secondary importance because as a codified law it will fall to
the courts to decide and interpret and indulge in their infinite
quest to determine that which has no existence, the intention of
Parliament.
The Cohen Committee recognized that:
Freedom of expression is a main cornerstone of our way of life and
there is a strong presumption that putting limits on it is a weakening
of our way of life.105
Therefore it is concluded that if any restraint is to be put on
freedom of speech, there must be a strong reason for doing so.
Freedom of speech is to be cherished because (1) a denial of
free speech would induce frustration injuring the dignity and self-
(2) when we begin to suppress speech
esteem of individuals;
with the best intentions we may eventually suppress it with the
worst intentions; and (3) unpopular ideas of today may become
orthodox principles of tomorrow. 0 Yet it is admitted every by the
opponents of this law that free speech is not an absolute. Mr.
Graham Hughes has said,
… to ignore the danger inherent in the policies put forth by the hate-
mongers would be to adopt a ‘Fetichistic attitude to free speech’.’07
Gale C.J.H.C. (as he then was) mirrored Rinfret’s C.J.C. view
of free speech when he said:
104R. v. Drybones [1970] S.C.R. 282.
105 The Cohen Report, at p. 6.
10 Hughes, Prohibiting Incitement to Racial Discrimination (1966), 16 U. of
T. LJ. 361.
107 Ibid., at p. 364.
McGILL LAW JOURNAL
[Vol. 17
The right to speak one’s mind is not a licence to preach vilifiation and
violence.’0 S
He went on to say,
… in this situation the individual’s freedom of expression must give
way to the broader interests of social cohesion and racial and religious
freedom. 09
Mr. Brewin, the Honourable Member from Greenwood said in
the House of Commons:
It is recognized that I have no right to destroy my neighbour’s reputation
by repeating falsehoods about him. By what reasoning then can it be
said that the destruction of the reputation and good name of a group of
people should not also be condemned.”O
These men, the members of the Cohen Committee and others,
have recognized the need to achieve a balance between protecting
individual freedoms on the one hand and safeguarding group
dignity and respect on the other. There are those however who
believe that this law will be decided to be unconstitutional because
it conflicts with the Bill of Rights. In fact while the law existed
as Bill C-3, there was a movement to have the Bill referred to the
Supreme Court to rule on its constitutionality. Nothing came of
it. Mr. Diefenbaker said:
… I think there is every reason to believe that there is a strong argument
that can be advanced that freedom of speech in 1960 meant freedom to
say what one would, excepting for libel, slander, sedition and blasphemy.
If that be so, … then this legislation contravenes the Bill of Rights very
directly and definitely.”1
However back in 1964, when after having actually received
a sample of hate propaganda, Mr. Diefenbaker said in the House,
… one of the great difficulties is to maintain freedom of discussion and
not to deny within one’s country that freedom of speech without which
freedom can not exist. However in reading this [hate literature] I doubt
that anyone would say that it came within the purview of freedom of
speech. 12
This law does not violate the freedoms guaranteed by the Bill
of Rights. In the preamble to the Bill of Rights the Parliament of
Canada is said to be affirming the principles,
108 Brief of the Canadian Jewish Congress on Bill S-21 (Hate Propaganda)
to the Standing Committee on Constitutional and Legal Affairs (1969), at p. 11.
109 Ibid.
110 Supra, n. 37b, at p. 888.
” Supra, n. 38, at p. 5682.
112 Supra, n. 94, at p. 733.
No. 4]
HATE PROPAGANDA
… which acknowledge the worth and dignity of the human person and
also that men remain free only when freedom is founded upon respect
for the moral and spiritual values and the rule of law.”i3
Hate propaganda tries to achieve the antithesis of those principles
by degrading individuals simply because they are members of the
target group and for no other reason. Surely the Bill of Rights
was not guaranteeing anyone the right to degrade others for a reason
such as that.
Then it is argued, by opponents to the new provisions, that the
way to fight hatemongers is through education and not by such a law,
which is useless in any case. Dean Tarnopolsky suggested that a
Canadian Human Rights Commission be set up which would co-
operate with its provincial counterparts to combat hate. Professor
Arthurs also would fight group hatred through a vigorous educational
campaign to immunize the public, a sort of fight fire with fire policy.
This would be done by a vigorously enforced Human Rights Code.
There is nothing wrong with fighting hate through educational
means. However, Dr. Kaufman, a psychology professor who did
a paper for the Cohen Report stated:
[Tlhere are grounds for questionning the wisdom of a society in relying
solely upon the formal educative process, secular and spiritual in order
to ensure full and responsible citizenship.’1 4 (Emphasis added).
Passing a law and using education to fight group hatred are not
mutually exclusive weapons. In fact they are complimentary. One
of the most important aspects of a law is its ability to create a
social norm which it is hoped most people will conform to. Anti-hate
legislation has a three-fold educative effect. In the first place, it
establishes a restraint on hate communicators through the creation
of a social climate perceived by people as being unconducive to
hate messages. Secondly it creates what Dr. Kaufman calls social
reality, that is a clear understanding of what is not acceptable
in the society. The hate communicator would be seen as operating
outside the limits of acceptability. Thirdly it would reassure mi-
nority groups that they are backed up by the majority of the society
in which they live.”i 5 Mr. Brewin also felt that it would be an
error not to realize the important educative effect in positive legal
pronouncements and that it would be an error to keep legislation
and education as mutually exclusive alternatives. Mr. Turner, in
response to a question asking why this problem should be dealt
with by the Criminal Law, said:
“13 Canadian Bill of Rights, 8-9 Eliz. II C. 44 (preamble).
114 The Cohen Report, at p. 186.
15 Ibid., at p. 230.
McGILL LAW JOURNAL
[Vol. 17
It [the law] tends within the conduct that is prescribed to articulate
the values by which we Canadians seek to live. The criminal law is
not merely a sanction or control process. It is reflective and declaratory
of the moral sense of a community and the total integrity of the com-
munity. It seeks not merely to proscribe but to educate. It seeks to set
forth a threshold of tolerance and standards of minimum order and
decency.”l 6 (Emphasis added).
It seems that those who advocate the dealing of group hatred by
educative means but oppose an anti-hate law are involving them-
selves in an inconsistency because of their failure
to see the
educative effect of an anti-hate law.
It is argued that passing an anti-hate law to deal with hatred
directed at groups is like trying to kill a fly with a cannon. Perhaps
minority groups are more concerned with access to socially pres-
tigous organizations than with the rantings of a “few demented
cranks”. Professor Arthurs noted that during the three and one half
years following the Cohen Report, the trickle of hate literature
“has shrunken to the point where it is no more than a residual and
putrid puddle”. 1 ‘ He believed that the Canadian public can and
should be trusted to “rigorously resist attempts to indoctrinate it
in attitudes of hatred”11 The Cohen Committee said:
However odious the behaviour of these groups and however offensive
the materials they distribute, the Committee believes that none of the
organizations
[1965] a really effective political or
propaganda force and that in any case very few individuals as such
are involved.”19
represent
today
However it goes on to warn that it would be unwise to ignore them.
Hatemongers, though few in numbers represent a potential danger
thant can not be measured by statistics alone. Furthermore the
Report negates the conclusion of Professor Arthurs concerning the
ability of the Canadian public to resist hate propaganda. That fact
that today the Canadian public is socially stable and economically
well off relatively speaking does not thereby create immunity
from hate literature. John Garrity, who worked for the Canadian
Jewish Congress, as an undercover agent, infiltrated John Beattie’s
organization. During that time he came to know Beattie and what
he stood for. He concluded:
… our sense of outrage has been dulled by overexposure to the sins of
Nazi Germany and it’s too convenient to dismiss Beattie and his henchmen
116 Supra, n. 38, at p. 5557.
“17Arthurs, Submission to the Standing Committee on Legal and Consti-
tutional Affairs on Bill S-21, at p. 5.
1s Ibid., at p. 6.
“1
9 The Cohen Report, at p. 14.
No. 4]
HATE PROPAGANDA
– only a dozen active members plus perhaps I00 unseen supporters –
as
a bunch of vicious but harmless misfits. Misfits they are but they are
also the most visible part of a growing Right-wing movement in Canada
which I have come to believe could represent a threat to our national
stability.120
Dr. Kaufman says that discontent and fear can not be assumed
to be absent even in a prosperous society. There is a large in-
articulate body of public opinion which holds hazy and muddled
views of a racist kind. Garrity corroborated this fact when he said:
It’s not Beattie himself I fear: its the uncounted Nazi sympathizers and
the growing number of Right-wing organizations that display Neo-Nazi
symptoms.121
Mr. Newman in a book entitled The Hate Reader describes the
personality of individuals most susceptible to hate literature. They
are (1) plagued by anxiety, (2) have low self-esteem,
(3) have
group relations which are shallow but hostile in depth, (4) have
shallow personal relationships, (5) are strict conformists within
their own group, (6) exaggerate non-conformity, and (7) tend to
conscious suppression. A person susceptible to hate literature need
not have all seven traits. He need only have some of them in any
combination. It is therefore readily observed that hate literature
has the potential to reach many thousands, if not more, of people
in Canada. Having these traits does not automatically make these
people hate readers, but it only gives them the potential to be.
John Beattie has said:
You wait when there’s a depression and the masses are looking for a
themselves for us.122
scapegoat,
that’s when thousands will declare
However Garrity concluded of Beattie:
Beattie will say or do anything as long as it’s legal; he knows that his
position is vulnerable if he breaks the law and he is careful to stay within
it.123
The fact that many of these people who are on the fringe, in
that they could or could not become haters of groups, because
they are, generally speaking, conformists would be swayed by
law which most would respect as authority even though they may
not wholly believe in it.
To create a social norm which will establish a public conscience
and standard of behaviour in order to check the spread of prejudice
12oGarrity “My 16 Months as a Nazi,” 79 Macleans’ Magazine 10, at p. 11
(Oct. 1/66).
121 Ibid., at p. 40.
122 Ibid.
‘3 Ibid.
McGILL LAW JOURNAL
[Vol. 17
is perhaps the main utilitarian function of the anti-hate law. It
negates the criticism of those who label the act well-meaning
but useless.
But the act fulfills another function, namely reassurance to
minority groups that the majority is behind them and that as
a corollary, something positive is being done by that majority to
check group hatred. An incident related by the Canadian Jewish
Congress and in the Cohen Report itself illustrates what potential
the act will have in putting the minds of minorities at ease. On
May 30, 1965 John Beattie attempted to speak in Allan Gardens.
A man, Mr. D. was urged to disorderly conduct by the sight and
content of all that Beattie stood for. An otherwise docile, law-
abiding citizen became violent. Mr. D. was typical of many listeners
that day who rioted. Many were survivors of Nazi persecutions
and on interrogation, it came out that their anger and violence
sprang chiefly from their impression that no official position had
been taken by any governmental authority. An enforced hate law
would go far to remedy this fear, which many members of minority
groups have.
Some people argue the anti-hate law is doomed to failure because
it will never eliminate hate. They argue that the best way to eliminate
hate is to fight poverty and try to eliminate it, for when poverty
disappears the cause of scapegoating, false stereotyping, and pre-
judice will vanish also. There is not much to quarrel about with
regard to the elimination of poverty. No doubt much of group
hatred would dissolve if there were no poverty. This argument was
advanced by Mr. Max Saltsman, the Honourable Member from
Waterloo. He labeled the act “impossible and foolish”.
The argument as a whole however is not well-founded because
it is based on a false premise. It assumes the function of the act
is to eliminate hate. This goal is at most an ideal. It’s real function
is to suppress it, to check and control it so that people do not
get hurt by it. Mr. Otto, the Honourable Member from York
East said,
… it is not the purpose of the bill to abolish hatred…
the purpose
of the bill is to protect the individual in the group so that smearing
hatred and all that overshadows the whole group will not burt the
individual.12 4
The Act is attacked on the ground that it will drive the hate-
monger underground, where he will never be brought to justice.
124 Supra, n. 37b, at p. 893.
No. 4]
HATE PROPAGANDA
But to say this, is in fact to point to a virtue, not a vice of the act.
Mr. MacGuigan dealt with this point in Parliament. He said:
My colleague also suggested that the effect of this bill would be to
drive hatred and hatemongers underground. If that were the case I
submit the purpose of this bill would be fully achieved. This bill
is not aimed at thought; it is aimed at speech and conduct, especially
speech which goes toward unlawful conduct. If we could succeed in
driving hate and hatemongers underground we should succeed in ridding
the democratic dialogue of our country of this cancer. 25
This law may never eliminate hate, but that is no reason for
abandoning it. After all, a law against robbery or murder has not
eliminated either of those crimes but it would be absurd to abandon
them on that account.
Yet another argument against the Bill is founded on the age
old debate on whether the law should legislate morality, the as-
sumption of this argument being that an anti-hate law is a moral
one in line with the laws on homosexuality, abortion, and marijuana.
Mr. Otto has asked, who is to govern morality if not the lawmakers?
The church, which used to have control in this area once, is in-
effective today. On the other hand the power of the criminal law
is awesome. If an anti-hate bill is a purely moral law, which idea
this author firmly opposes, the criminal law can and should for
the reasons already mentioned apply in this area.
Many people say the act will open a Pandora’s box. They believe
such an act will not drive hatemongers underground at all, but
they will deliberately come out in the open to challenge the law.
Arrests will ensue and because under S. 267B(3)(a) truth of the
statements is an absolute defence, the hatemonger will spew his
messages of hate right in court. Since the hatemonger craves and
thrives on publicity, the act will present an opportunity for publicity,
hatemongers dream of. If that were to happen, the law would be
on the horns of a dilemma, for if the hatemonger was convicted
and sent to jail he would be seen as a martyr and so gain converts
for the very position that he is condemned. On the other hand if
he is acquitted, he will surely warp and twist that acquittal by
telling his audiences that what he said had the approval of the
courts and therefore what he said was right and just, and he
will almost assuredly gain converts by this means. Because of this
boomerang effect it is argued that we should not play into the
hatemonger’s hands but rather fight him using the quarantine
method.
125 Supra, n. 38, at p. 5604.
McGILL LAW JOURNAL
[Vol. 17
There is documented evidence which tends to corroborate the
fact that hatemongers do crave publicity and that publicity, albeit
unfavourable does promote rather than stifle their cause.120
Though this line of reasoning is persuasive at first instance, it
is not without flaws, because it concludes that the best defence
against group -hatred is a passive one, i.e., fighting group hate-
mongers by the quarantine method. This method, just does not
work. It has been tried but did not prevent the increased neo-
Nazi activity from arising as it did around 1963-1964.
Furthermore the reduction of dissemination of hate literature
that would result from an anti-hate law would far outweigh any
publicity afforded to the hatemongers. The extent to which anyone
would become a martyr would depend on the society in which
he lived. If society is generally disgusted by such men, there should
be little sympathy for them if and when they are convicted. If a
hatepeddlar should be acquitted through some technicality in the
law such as a matter of procedure, accurate news coverage and
in addition a statement by the proper official should affirmatively
tell the public why there was an acquittal and what the authorities
think of the pamphlet or speech because of which the hate peddlar
was charged.
Finally, there is a criticism levied which may conveniently be
labeled the “passing the buck danger”.
Professor Arthurs believes that it is all of society’s duty to
clean up hate literature but because a law has been passed, the
public will think “now there is a law and the business of combatting
hate is the job of police and judges”. 127 Mr. Saltsman agreed.
He said:
It is all too easy to dismiss the problem of hatred by passing legislation.
… This is an illusion and one nobody should be under.128
The question is, do the facts bear out the fears of these men?
The answer is no. As an example that people will do what they
can as citizens to combat hate propaganda the following newspaper
article may be cited. Hate literature had turned up in Sudbury
in April of 1970. An article in the Sudbury Star gave this advice,
“the way for the ordinary householder to play his part is to gather
up all copies of hatemonger publications that come to his attention
and burn them”.
126 Newman, The Hate Reader, (Dobbs Ferry, 1964).
127 Arthurs, supra, n. 117.
128Supra, n. 38, at p. 5607.
No. 4]
HATE PROPAGANDA
791
At the beginning of this inquiry the question was asked as to
what rights any member of a defamed group had against the
promoters of hate propaganda directed at that group. It is submitted
that the disseminator and author of such propoganda may be guilty
of wilfully promoting hatred towards and identifiable group under
S. 267B(2) and the publication carrying such propaganda may be
seized under S. 267C(1). The consent of the Attorney General under
both sections is a condition precedent but at least there is some
potential action that could be taken.
In conclusion, it is submitted that this legislation is useful and
necessary. To foresee trouble and take steps to forestall it, is the
act of a rational man. Prevention is possible. Far too soon it is
too late for cure.
