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Was That a Hate Crime?

scientology_londonist.jpg
Photo by Joe Lee (London, via Londonist).
A spokesperson for the Church of Scientology labelled Sunday’s protest outside its office at Yonge & St Mary—part of a worldwide series of protests—a “religious hate crime” and said that the “hate crimes of Anonymous should be condemned,” as reported in Torontoist, CTV and the Toronto Sun, among others.
That got us thinking. Accusing someone of a “hate crime” is pretty damning. Are the protestors guilty of it? Our preliminary answer, based on the facts known to us: probably—and almost certainly—not.
Canada’s laws on hate crime are found in sections 318 to 320 of the Criminal Code, which define three types of hate crimes. Two of them are relatively rare and don’t arise here: advocating or promoting genocide, and inciting hatred that will likely cause an immediate threat to public order. The key crime for our purposes is the third: anyone who “by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group” (subsection 319(2)).
This crime has five components and—since it’s a criminal charge—each component must be proven beyond a reasonable doubt.
(The standard legal disclaimer applies. What follows is one interpretation of a difficult and emerging area of the law, and should not be relied on as legal advice.)


We’ll deal with the two quick components first:

1. Did the protestors act “by communicating statements, other than in private conversation”?

Probably. The protestors stood on the street for seven hours while making public statements and carrying signs. Private conversations (wherever held) are protected—so the dinner-table ramblings of your prejudiced uncle don’t make him a criminal—but these protestors clearly intended to communicate to a public audience.

2. Did the protestors “promote” what they were expressing?

Some yes, some no. According to the Supreme Court in the leading hate crimes case, R v Keegstra (1990), to “promote” something requires more than just giving “simple encouragement or advancement” and requires instead “active support or instigation.”
Protestors who stood around, clapped, or milled about are probably in the clear. Conversely, protestors who gave speeches, shouted into megaphones, and so on, may be caught.
nyist.jpg
Photo by Ralph Hockens (New York, via Gothamist).
Now for the other three components—and, from the Church’s perspective, where it begins to get tricky:

3. Did the protestors express “hatred”?

Probably not.
Keegstra defined “hatred” as “the most severe and deeply-felt form of opprobrium” and “a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.”
Examples of hatred are, unfortunately, rather common. From Keegstra:

“Mr. Keegstra’s teachings attributed various evil qualities to Jews. He thus described Jews to his pupils as “treacherous”, “subversive”, “sadistic”, “money-loving”, “power hungry” and “child killers”. He taught his classes that Jewish people seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars and revolution. According to Mr. Keegstra, Jews “created the Holocaust to gain sympathy” and, in contrast to the open and honest Christians, were said to be deceptive, secretive and inherently evil. Mr. Keegstra expected his students to reproduce his teachings in class and on exams. If they failed to do so, their marks suffered.”

And from R v Krymowski (2005):

“On August 26, 1997, about 25 persons participated in a demonstration in front of the Lido Motel in Scarborough, Ontario, which at that time was temporarily housing [Roma] refugees while they awaited the outcome of their claims. The demonstration included chants and placards. The placards stated, among other things, ‘Honk if you hate Gypsies’, ‘Canada is not a Trash Can’, ‘You’re a cancer to Canada’ and ‘G.S.T.—Gypsies Suck Tax’. The chants included statements such as ‘Gypsies Out’, ‘How do you like Canada now?’ and ‘White power’. Some participants were seen giving the ‘Sieg Heil’ Nazi salute. Nazi and American Confederate flags were used in the demonstration. Some of the clothing, accessories and footwear worn by the demonstrators was described as typical ‘Skinhead’ accoutrements.”

Compare that to some examples of what the protestors expressed on Sunday:

“End the corporation of Scientology xenu.net”
“Cult of greed”
“How many more must die?”
“Co$ What Are Your Crimes?”

Would a court be likely to determine that these statements sank to the depths of Keegstra and Krymowski? Did the protestors exhibit “extreme emotion that belies reason” and did that emotion imply that certain individuals should be “despised, scorned, denied respect and made subject to ill-treatment”? Probably not.

4. Was the expression “against any identifiable group”?

Maybe.
A hate crime must be against an “identifiable group,” which subsection 319(7) of the Criminal Code defines as “any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.” (Attempts to add other characteristics, like sex or disability, have died over the years—it’s worth asking why, though.)
The question of whether Scientology is a religion is often tossed around. Australia and the United States recognize it as one, but it’s less clear in Canada. Here, the Church isn’t a federally registered charity for tax purposes—though the sanction of the federal tax department is hardly the best way of answering the question.
But this question might not need to be answered. Keegstra refers to the target of hatred needing to be “members of an identifiable group” or “individuals,” rather than an institution or ideology. If the protestors’ signs asked drivers to honk if they hated Scientologists, that might be one thing. But signs that ask drivers to honk if they hate Scientology? It’s less certain.

5. Did the protestors “wilfully” promote hatred?

Probably not.
To be convicted, a court would have to find that the protestors “wilfully” promoted hatred. You could spend a long time unpacking the meaning of this word, but the generally accepted definition is found in R v Buzzanga and Durocher (1979), an Ontario appeals court case that has been cited approvingly on numerous times by the Supreme Court.
Essentially, someone “wilfully” promotes hatred if he/she “subjectively desires the promotion of hatred or foresees such a consequence as certain or substantially certain to result from an act done in order to achieve some other purpose” (from Keegstra) or, put another way, “had as a conscious purpose the promotion of hatred against the identifiable group, or if he or she foresaw that the promotion of hatred against that group was certain to result and nevertheless communicated the statements” (from Mugesera v. Canada (Minister of Citizenship and Immigration) (2005).
In other words, “wilfully” promoting hatred isn’t just intending to express something that then results in hatred. Rather, it requires intent to cause the hatred that follows.
How do you prove whether someone has this intent? Generally, a court will look to all relevant circumstances. A Saskatchewan court recently ordered the retrial of David Ahenakew on the basis that the trial court failed to considered all relevant evidence to determine his intent in making anti-Semitic comments to a reporter, including the nature and context of the interview. In another case, a man selling white supremacist CDs at a skinhead party in 2003 (at a Fox & Fiddle pub in Toronto) was charged with promoting hatred. The court considered all relevant circumstances about the man’s state of mind—that he owned the CDs, was trying to sell them at a skinhead party, and was displaying them in open view—to conclude that, yes, he intended to promote hatred. (For those curious, the man was acquitted on a technicality thanks to an error by the Crown.)
Would a court find that the protestors actually desired to promote hatred against individual Scientologists, or that they foresaw hatred as being almost certain to result from their protest? Probably not, if only because their signs and speeches are unlikely to qualify as “hatred” in the first instance. Even if they did (and that’s a big, big if), a court would have to consider all relevant circumstances to try to gauge the protestors’ intent in protesting, which might include their state of mind at the time of the protest, their motivations, and any other factors that the court might deem necessary.

Conclusion

The intersection of hate crimes and free expression is a delicate balancing act that different countries perform in different ways, and Canada has a fairly stringent series of tests that must be applied in order to determine whether expression is or is not criminal. Regardless, it is highly improbable—in view of the facts known to us—that Sunday’s protestors would be found guilty in a Canadian court of having committed a hate crime. A court would need to conclude that the protestors are guilty of all of the above five components beyond a reasonable doubt. In this particular case, the allegation of hate crimes does not seem to stand up to scrutiny.

Comments

  • GrnApl

    The kkk and the Nazis similarly might have skated through this test. Essentially Anonymous, the kkk and the Nazis all relied on disinformation to justify their position and actions. One person lying and another swearing to it does not make it so and does not justify acting on the falsehoods; no matter how many times you promote the lie as a truth.

  • bigdaddyhame

    one could argue that Tom Cruise’s antics could be construed as ‘willfully promoting hatred’ for Scientology.

  • andrew

    GrnApl – Keegstra demonstrates that neo-Nazis do not skate through this test.

  • deadrobot

    How is the “Church” a church when their “chapel” just off Yonge Street on St Mary Street has been closed since the 80s?
    Where do they do their kneelin’?

  • WhyMousy

    GrnApl – are you suggesting that any group who protests any practice of any religious organisation should be prosecuted for hate crimes?
    I sure as hell don’t want to see the day when concerned people can’t raise their voice about things they think are wrong. They have a word for that – it’s called Facism.

  • mrs

    This is not a hate crime for the simple and great reason that protesting is legal. It was a non-violent demonstration, and people are entitled to raise their opinions about anything they like. And of course, I agree with anything that means raising your voice against Scientology….

  • Mark Ostler

    GrnApl: what disinformation or lies did the protesters use to justify their position?

  • meowmix

    ‘One person lying and another swearing to it does not make it so and does not justify acting on the falsehoods; no matter how many times you promote the lie as a truth.’
    This is of course very true.
    However, the depth of your argument is challenged by the amount of evidence you are willing to declare as falsehoods, and the source you are willing to declare as liars.
    For instance, would you declare the IRS to be liars? The german government and several other governments? How about the FBI?
    If all i had read had just come from billys web blog i wouldn’t look at scientology as anything but a mislabelled religion that had had the bad luck of not being around for a few centuries.
    However, reading about the stuff uncovered by the irs/ fbi raids on scientology in the late 70′s / early eighties made my blood run cold.

  • Miles Storey

    I have to say, some of the signs used in the London demonstrations made me laugh for their restrained exclamations of protest, “down with this sort of thing” and “careful now“. Not exactly hate speech in that case…

  • Mark Ostler

    Miles: Hilarious! Typical dry British wit.

  • Ben

    Miles, those are references to a Father Ted episode “The Passion of St. Tibulus”
    It’s a great episode.

  • Mathew Kumar

    It’s a great show!

  • McKingford

    How can you have a legal analysis of whether or not this protest constituted a crime, and then leave out discussion of the statute’s defences?
    S. 319(3): Defences
    (3) No person shall be convicted of an offence under subsection (2)
    (a) if he establishes that the statements communicated were true;
    (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
    (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
    (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

    Isn’t this the issue? Forget whether or not Scientology is a religion or not, the protesters are clearly expressing an opinion they reasonably believe to be true and intended to promote discussion for the public benefit.

  • Mark Ostler

    I hear Father Ted’s a great show, but haven’t ever gotten a chance to watch it.

  • Miles Storey

    Ahh, Father Ted, that makes more sense then. I think I’m the only person in my family who isn’t a rabid fan of the show.

  • Robin Rix

    McKingford:
    Too true. I actually had a discussion about defences in the first draft but took them out because (a) the article was getting unwieldy, and (b) I very, very much doubt that the elements of the offence are there in the first place, so no need to go there.
    But yes, the article could benefit from an extra “even if…” paragraph or two about the available defences.
    As for the defences themselves:
    (a) could be relevant, though it might be difficult to prove the actual truth of some of the communications;
    (b) I’m unclear about the interpretation of this one: I understand that it was inserted at the request of religious organizations in 2004 because they feared that expression about homosexuality that was derived from their religious beliefs might be ruled hateful, but it would be interesting for a defendant to flip it around in order to argue that it also protected hateful expression about a religious topic — a plain reading of the provision suggests that it could be done, but I’m unsure whether a court would agree;
    (c) most likely applicable, as you note;
    (d) most likely not relevant.

  • wghagglund

    OSA has made this false accusation before. In 1999 they complained to the Police I was a hate monger for exposing secret teachings and decrying criminal actions of the management.
    The statement that really angered C0$ was similar to this:
    Scientology Management does not always tell truth;
    Scientology Management has condoned, conducted and been
    convicted of illegal, unethical and immoral activities;
    Some Scientology Practices are dangerous to participants health,
    either physical or mental or both;
    Scientology Management and L.R. Hubbard lied about Hubbards life
    history and accomplishments;
    Despite the pseudo-scientific claims of Hubbard no, Scientology or
    Dianetic process has *ever* been clinically *proven* to work as
    claimed.
    {The Hate Crimes Unit was not fooled by C0$ attempts to “use the law to harass”. They acknowledged I was involved in genuine charter protected criticism. They did express some concern about how far C0$ would escalate its organized criminal harassment of me and my family and anyone associated with me. They were right to be concerned.}
    I have been circulating the above, in one form or another since 1999.
    Were the above not true, then they would be defamations of
    Corporate Scientology and we both know Co$ has the money and the lawyers to force me to retract or cease to utter or print them.
    But the above *are* true.
    And the first four are enforced by *current* Co$ policies.

  • rek

    Anyone know where one can buy a Guy Fawkes mask? :)

  • AndroidCat

    I have no doubt that Scientology will make a hate crime complaint about picket, as they did about pickets in previous years. It’s their standard smear against critics. I don’t think that they’ll have any more luck this time so long as the events are kept in good order and spirits as this one was.
    Scientology’s own actions towards someone they designated as an “enemy” were described by the Supreme Court of Canada in Hill v. Church of Scientology Toronto “[..] every aspect of this case demonstrates the very real and persistent malice of Scientology.”
    Depending on Scientology’s tactics against these new critics, perhaps it’s a shame that Anonymous is an un-identifiable group.

  • WannaBinToranna

    I’m with rek, where can we get those masks?

  • rek

    From the Project Chanology Toronto Division facebook group:
    =Information for Guy Fawkes/V for Vendetta mask=
    - No longer available @ Theatrics Plus. Supplier has run out and they will not be restocked in the forseeable future.
    Malabar might still have.

  • kingkirbythegreatoftexas

    In the end, scientology (like all religions) is a cult, and hate crime laws are a slippery slope that only serve to abridge speech.

  • rek

    By definition not all religions are cults, and hate crime laws apply to actions not just speech (sometimes the action is speech).

  • kingkirbythegreatoftexas

    Sorry. They are, and it does.

  • Anonymous

    This article is the most weasel-worded bit of reality-dodging and oh-so-careful data-culling and selection that I have seen by an employed reporter. Most who write this carelessly and transparently are now running their own blogs from Mama’s garret.

    Rix avoids the obvious, then slinky-words his/her way around the blatant, and finally tells us how we should interpret what we see in front of us.

    Anyone who proceeded beyond a high-school education should be able to see the straight line through Rix’s 100-yard broken-field zig-zag run through the facts of the matter.
    Doing that will expose hate-speech–on the street or in this newspaper–for what it is. (And note there are many credited definitions for hate-speech; Rix reliably picked the one that is hardest to satisfy legally, and that fit the hate-speech s/he desired to print in this article.

    • RMycroft

      Sucks to be you, huh?

      • KeepOnLearning

        Au contraire, mon frere! I *love* being unabashedly me!
        I just take pride in having an education that allows–maybe I should say “compels”–me to see through media b.s., smell an agenda, and shoot down these nonsense conspiracy theories that most people dully assimilate and regurgitate back out at their next bong party.

  • KeepOnLearning

    The final stake in this article’s heart is that, since its publication, literally DOZENS of Anonymous members have been arrested around the world.

    Their crimes run from (obscene) vandalism and desecrating church property to many, many counts of cybercrimes.

    Their level of obsession–aimed only at destruction–proves hatred.

    And don’t think that super-extreme definition of hatred in the article fooled anyone above sixth grade.

    • dsmithhfx

      Obsess much?