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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.

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