working document

WORKING DOCUMENT

Researching Evidence of Hate Propaganda in Canada: A Conceptual Report

Department of Justice Canada Working Document

Dr. Ellen Faulkner Department of Sociology & Anthropology University of Windsor 2001 UNEDITED Research, Statistics and Evaluation Directorate/ Direction generale de la recherche, de la statistique et de l’evaluation Policy Sector/ Secteur des politiques

Contract Number 4500017980

Table of Contents Acknowledgements ........................................................................................................................v Executive Summary ..................................................................................................................... vi 1.0.

INTRODUCTION: AND SCOPE OF THE REPORT ...................................................1 1.1 Introduction ..............................................................................................................3 1.2 Purpose of the Report...............................................................................................3 1.3 Methods Used in this Report....................................................................................4 1.10 Theorizing Hate Propaganda ....................................................................................6 1.11 The Scope of Group Defamation Laws in Canada.................................................12 1.12 Effectiveness of the Law ........................................................................................17 1.14 Reforms to the Hate Propaganda Provisions..........................................................24 1.15 Changes Since September 11th ...............................................................................26 1.16 Summary 26

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INTERNATIONAL/DOMESTIC HUMAN RIGHTS LEGISLATION ....................32 2.1 International Conventions ......................................................................................33 2.2 The ‘Others’ ...........................................................................................................36 2.3 United States ..........................................................................................................41 2.4 Australia .................................................................................................................47 2.5 New South Wales ...................................................................................................49 2.6 Germany .................................................................................................................49 2.7 The Netherlands .....................................................................................................52 2.8 Sweden ...................................................................................................................53 2.9 United Kingdom.....................................................................................................54 2.10 Republic of South Africa .......................................................................................57 2.11 Summary ................................................................................................................58

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RACIST HATE PROPAGANDA ...................................................................................60

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SEXUAL ORIENTATION HATE PROPAGANDA ....................................................77

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SEXIST HATE PROPAGANDA....................................................................................99

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AGEIST HATE PROPAGANDA .................................................................................119

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ABLEIST HATE PROPAGANDA ..............................................................................122

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RECOMMENDATIONS AND CONCLUSIONS .......................................................127

REFERENCES ...........................................................................................................................141 APPENDICES Appendix I Cases Appendix II Hate Crime Statutes and Bills Appendix III Human Rights Conventions Appendix IV Contacts Appendix V Minneapolis Ordinance Appendix VI Hate Motivated Activity – Terms of Reference

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ACKNOWLEDGEMENTS This document was written to fulfill the terms of service contract 5400017980 with the Department of Justice Canada. I would like to thank all the groups and individuals who supplied information to me, or who provided comments on earlier drafts of this report. Special thanks goes to Steven Bittle of the Department of Justice for providing feedback and guidance and to my three research assistants, Megan Street, and Jennifer Kilty from the Department of Sociology and Anthropology and Adam Vasey a student at law at the University of Windsor. The research conducted for this report took place before the September 11th attacks in North America and where relevant I have updated the Canadian Government’s response to hate propaganda throughout. M. Ellen Faulkner Assistant Professor (Criminology) Department of Sociology & Anthropology University of Windsor, Windsor, Ontario E-mail: [email protected] Telephone: (519) 253-3000 ext. 2210 Fax: (519) 971-3621

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EXECUTIVE SUMMARY Hate Propaganda In this report I was asked to do two things. I was asked to research and provide evidence of hate propaganda directed at the expanded groups and to provide a conceptual think piece outlining how to best study this issue in the future. In the process of investigating this issue I found that this exercise has been conducted before in Canada. The Report to the Minister of Justice of the Special Committee on Hate Propaganda in Canada (1966) provided a report on the existing nature of hate propaganda at that time. The Special Committee commissioned various studies on hate propaganda which resulted in an extensive and in-depth review. In attempting to document the state of hate propaganda during that time-period the report included analysis of existing hate propaganda, documentation of the socio-legal response, analysis of the psychosocial impact, documentation of international responses, a discussion of the potential implications of not addressing hate propaganda, concluding with a number of extensive recommendations, not the least of which was the recommendation to criminalize hate propaganda. Since the mid-1960's the federal government, in consultation with several communitybased and non-governmental organisations, has struggled to combat hate propaganda and racist group activities. Sections 318 and 319 of the Criminal Code make it an offence to advocate genocide or incite hatred in public against any identifiable group, distinguished by colour, race, religion or ethnic origin. Currently, sections 318 and 319 of the Criminal Code provide protection to identifiable groups distinguished by colour, race, religion, or ethnic origin. Arguments have been advanced that encourage an expanded definition of identifiable group that is consistent with section 15 of the Charter (equal rights on the basis of colour, race, national or ethnic or national origin, religion, sex, age, or mental or physical disability and sexual orientation). In order to build on previous work conducted on this important issues I reviewed the first report published in 1966 and all existing reports. As a result, the methodological approach utilized here is much like that taken by the original Special Committee. The approach which I have taken is to provide: a discussion of the scope and effectiveness of the law, an overview of the theoretical issues used to conceptualize this issue, an overview of international legislation, law and statutes, and finally, documentation of the existence and impact of racist, heterosexist, sexist, ageist, and ableist hate propaganda in Canada. Where relevant I have incorporated a comparison of issues and responses taken in the United States, as well as discussion of the legal changes which have been proposed following the attack on September 11th. Given the initial in-depth study of this issue in Canada, and the many research studies,

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publications and reports published in this field since the mid- 1960s, my attempt to explore changes up to 2001 has often seemed overwhelming. Since 1970 a large body of information in the area of hate and hate propaganda has grown both nationally and internationally. Attempting to re-evaluate all of the areas and issues addressed in the original Cohen report here could not be done in a way that would allow a fair and inclusive process to take place. What I have therefore based my recommendations upon is a vision of a future research project that would allow a more in-depth exploration of hate propaganda experienced by the expanded groups, one that includes input from victims as well as lawyers, academics, community activists, police, policy makers, and other experts in the field. Purpose and Scope of the Report The purpose of this report is to provide a conceptual “think-piece” that explores evidence of materials that would constitute hate propaganda under sections 318 or 319 of the Criminal Code, against groups not presently covered by the definition of identifiable group. In particular, evidence of hate propaganda targeting individuals on the basis of colour, race, national or ethnic or national origin, religion, sex, age, mental or physical disability, or sexual orientation (referred to as expanded groups). The goals of this research are twofold: ·

Explore the conceptual and methodological grounds for conducting research of materials that would constitute hate propaganda against the aforementioned expanded groups.

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Determine if there is reasonable prima facie evidence of hate propaganda against the aforementioned expanded groups.

Methods Used in this Report To evaluate the methodological grounds for conducting research of materials that would constitute hate propaganda against the aforementioned expanded groups, the report: · · ·

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reviews and analyses the legal and multi-disciplinary literature and case law to identify relevant issues and themes; documents international responses; and, explores the extent and nature of hate propaganda against the expanded groups, making recommendations with respect to appropriate methodology and information resources, and discusses the feasibility and outlines the next steps in a process of researching evidence of hate propaganda against the expanded groups1.

The Present Law

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In order to conceptualize research on the expanded groups one must first consider the law bearing on prosecutions for the wilful promotion of hatred (Hess, 1996). In R. v. Keegstra (1990) 61 C.C.C. (3d) 1, the Supreme Court of Canada provided guidance for the determination of what constitutes the wilful promotion of hatred under s. 319(2) of the Criminal Code. Dickson C.J.C., writing for the majority, rejected Keegstra’s constitutional challenge to s. 319(2). Stating that the section violated the guarantee of freedom of expression in s. 2(b) of the Charter, but concluded that it constituted a reasonable limit on that freedom under s. 1. This precedent established that the present Criminal Code provisions stand up against Charter challenges. Harm Of significance are Chief Justice Dickson’s words regarding the “pressing and substantial” nature of the objective of s. 319(2) and the harm caused by hateful expression. First, harm is done to the group specifically targetted by expression. That type of injury occurs as follows: ... a response of humiliation and degradation from an individual targeted by hate propaganda is to be expected. A person’s sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs: see Isaiah Berlin, ‘Two Concepts of Liberty,” in Four Essays on Liberty (1969:118 at 115). The derision, hostility, and abuse encouraged by hate propaganda therefore have a severely negative impact on the individuals sense of selfworth and acceptance. This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity through, among other things, respect for the many racial, religious and cultural groups in our society (Keegstra, 36-37). Second, harm could be done on a broader, societal level, by the creation of “serious discord,” as others may be attracted to the hate monger’s cause. Even where such ideas of inferiority appear to be rejected, evidence suggests that they can linger “in a recipient’s mind as an idea that holds some truth” (Keegstra, 37). This creates a danger which is justifiably addressed by the criminalization of such speech. In Chief Justice Dickson’s view: The threat to the self-dignity of target group members is thus matched by the

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possibility that prejudiced messages will gain some credence, with the attendant result of discrimination, and perhaps even violence, against minority groups in Canadian society (Keegstra, 37). Confirming the serious consequences of hate propaganda, the Ontario Court of Appeal, in R. v. Andrews and Smith (1989), viewed the danger of hate literature to society to be “every bit as great a danger as impaired driving.” In fact, such speech is considered to be antithetical to fundamental principles of Canadian society, as such: ... the quest for truth, the promotion of individual development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged (Canada v. Taylor, [1990] 3 S.C.R., 892).2 Recent Supreme Court of Canada decisions dealing with constitutional challenges involving sexual minorities have recognized that Charter s. 15's protection of equality without discrimination extends to sexual orientation as an analogous ground. Thus, sexual minorities are considered to constitute a social group entitled to protection, a so-called “discrete and insular minority” which has historically suffered disadvantage. (See: Egan v. The Queen [1995] 2 S.C.R., 513; and Miron v. Trudel [1995] 2 S.C.R, 413). This is significant in setting the context for the discussion of hate propaganda dealing with sexual minorities, as it demonstrates that there is increasing recognition of the impact of discriminatory treatment on sexual minorities. A recent Supreme Court of Canada decision, Butler,3 (R. v. Butler (1992), 70 C.C.C. (3d)) set out the means by which Canadian courts conceptualize sexist hate propaganda. In Butler, the Supreme court argued that “the message of obscenity which degrades and dehumanizes is analogous to that of hate propaganda” (R v. Butler, 1992:28). Sopinka J. reminds us that in R. v. Keegstra (1990)4 the Supreme Court unanimously accepted that the prevention of the influence of hate propaganda on society at large was a legitimate objective. In attempting to make a rational connection between the criminal sanction limiting freedom of expression and the objective of preventing harm Sopinka J. remarks that while there are various opinions about the harms caused by pornography (MacGuigan Report, 1978:18:4; Fraser Report, 1985, vol. 1) and that a direct link between obscenity and harm to society may be difficult, if not impossible, to establish, “it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs” (R.v. Butler, 1992:23). In drawing upon the decision in Irwin Toy v. Quebec (Attorney-General) (1989)5 which related to children’s advertising, Sopinka J. concurs with Twaddle J.A. who expressed the view that Parliament was entitled to have a “reasonable apprehension of harm” resulting from the desensitization of individuals exposed to materials which depict violence, cruelty, and dehumanization in sexual relations” (R. v. Butler, 1982:24). The operative words here are ‘harm to society’ and ‘reasonable apprehension of harm.’ In making the link between pornography as a form of hate propaganda that is a harm to women Sopinka J. established that limiting freedom of expression met the rational objective. In

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recognizing that pornography encourages violence toward women Sopinka J. suggested that a multi-pronged approach be taken by government, one that includes education as a means of combatting negative attitudes toward women (R. v. Butler, 1992:25). Educative Effect In Keegstra, Dickson, C.J.C. also commented on the educative effect of prosecuting the wilful incitement of hatred. First, those who belong to identifiable groups are comforted by knowing that there will be a criminal prosecution and the hate monger’s views will be rejected Second, “values beneficial to a free and democratic society can be publicized” (R. v Keegstra (1990), 61 C.C.C. (3d) 1, [1990] 3 S.C.R. 1 C.R. (4th) 129, at 53- 54). In the ‘minimal impairment’ portion of his s. 1 analysis, Dickson discusses the concepts of ‘wilfulness,’‘promotion,’ ‘hatred’ and the defences incorporated into s. 319. However, he first reminds us that the type of speech at which this criminal prohibition is directed is public expression. Naturally, private speech, no mater how offensive, will not fall within the scope of s. 319(2). Willfullness Willfullness in terms of the promotion of hatred requires more than mere recklessness or negligence. An accused must subjectively desire the promotion of hatred, or he or she must foresee that hatred is certain or substantially certain to result as a consequence of his or her actions, even though the actions were undertaken to achieve another purpose. (See: R. v. Buzzanga & Durocher (1979) 49 C.C.C. (2d) 369 at 385). Generally, such an intention will have to be inferred from the statements themselves (R. v. Keegstra, (1990), 60). According to Dickson, C.J.C. , to be convicted, the “promoter” of hatred must actively support or instigate, rather than just encourage or advance certain views. In his words, “the hate monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group”(R v. Keegstra, (1990) 59). As for the meaning of hatred, Dickson C.J.C. characterizes it as an intense feeling of dislike: ...the term ‘hatred’ connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. As Cory J.A. stated in R. v. Andrews (211): ‘Hatred is not a word of casual connotation. To promote hatred is to instil detestation, enmity, ill-will and malevolence in another. Clearly an expression must go along way before it qualifies within the definition in [s. 319(2)].’ Hatred is predicated on bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion

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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. (Keegstra, 59-60). In the Supreme Court of Canada’s decision in Canada v. Taylor (1990:892) the phrase ‘hatred and contempt’, as used in human rights legislation directed at curtailing the promotion of hatred, is said to refer to “unusually strong and deep felt emotions of devastation, calumny and vilification. Clearly “hatred” has a sufficiently precise meaning to be able to withstand constitutional scrutiny. It is also clear that it goes far beyond mere dislike or disapproval. Hatred entails feelings of an extreme nature. In prosecuting s. 319(2), the Crown is not required to prove that hatred was actually created by the acts of the accused. It is recognized that: (1) targeted groups suffer “severe psychological trauma” as a result of such material (Keegstra, 58); and (2) s. 319(2) is aimed at the prevention of the harm caused by hatred (Keegstra, 59). Moreover, proof of actual hatred would pose an almost insurmountable hurdle for the prosecution.6 Given the relatively brief history (since 1970) of sections 319, 318 and 320 and the limited number of prosecutions thus far, there is very little case law dealing with the application of these defences. The truth defence in subparagraph (a) did receive consideration in the Keegstra decision. Mr. Keegstra took the position that placing the burden of establishing truth of hateful expressions on an accused constituted an infringement of the presumption of innocence guaranteed by s. 11(d), however, the Supreme Court considered the violation to be a reasonable limit in a free and democratic society. Dickson, C.J.C. concluded that the Charter would not demand that the defence of truth be open to an accused, because it is the harmful effects of hateful speech which is the target of s. 19(2). However, he recognized that, by making this defence available, Parliament has accepted the high value of ‘truth’ in our society. Dickson, C.J.C. also noted that requiring the Crown to prove the falsity of an accused’s statements would be impractical. Thus, the reverse onus was considered a reasonable means by which to balance these two interests (Keegstra, 72). The defense of honest belief in the truth of a statement is not available to the accused. Thus, without proof on a balance of probabilities showing that the statements are true, wilful promotion of hatred will attract a criminal sanction. This accords with the legislative objective which focuses on the harm done by such speech not on the actual content of the speech (Crankshaw’s Criminal Code, s. 319 6 at 8-997). Past s. 319(2) Prosecutions

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What is the standard by which objectionable material is judged to be hateful? Under the Criminal Code public incitement of hatred is defined as: “319.(1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or, (b) an offence punishable on summary conviction. (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.” (Martin’s Criminal Code, 1998. “Part VIII – Offences Against the Person.” S.319). There have only been a few attempts to prosecute using these sections of the Criminal Code. In Buzzanga & Durocher (1980), two men where accused of producing and distributing a anti-French publication which called for the expulsion of the French from southeastern Ontario. The men were ultimately acquitted of the charge of ‘wilfully’ promoting hatred, on the basis of lack of mens rea. In Keegstra, the accused taught students in his high school classes about Jews by describing them as: treacherous, subversive, sadistic, money-loving, power hungry, and child killers. He also told his students that “Jewish people seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars and revolution.” The pupils learned that a Holocaust was a lie and that Jews could be expected to be deceptive, secretive, and inherently evil (Keegstra, 12). In R. v. Safadi (1993) the accused sent letters to various organizations in which he pretended to be a Jew who was determined to bring about the downfall of Christianity. He referred to Jews as a parasite of mankind, and “portrayed them as haters of Christianity and Christian values and beliefs, and as threats to democracy and law enforcement organizations”(Safadi, 82). The primary target of the prosecution of Mr. Safadi was the letters he wrote to various community organizations and churches. In those letters he pretended to be a Jew and in them he attacked Christianity and government institutions using highly provocative and disgusting language. The trial judge believed that he subjectively desired the promotion of hatred against Jews. Classification of Hate Propaganda One of the difficulties with the collection of data on hate propaganda concerns the definition of what constitutes an incident of hate propaganda. There is considerable variability in the definitions used by non-governmental organizations and the federal government. Feminist groups such as the National Association of Women and the Law (NAWL) and the Legal Education and Action Fund (LEAF) consider materials that depict violent and degrading images of women (either through image or language) to constitute sexist hate propaganda. Equality for

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Gays and Lesbians Everywhere (EGALE), which lobbied for the inclusion of sexual orientation in the enhanced sentencing provisions of the Criminal Code (Bill C-41), argue that despite religious conviction, sexual orientation hate propaganda is harmful to sexual minority communities and should be criminalized). First Nations conceptualise hate propaganda and genocide differently from their historical experience of colonization. For example, while serious hate propaganda is the focus of the Code, little focus has been given to the relocation of first nations youth to residential schools, a practice which some consider to be a form of genocide. In contrast, the federal government uses an exclusive definition of hate propaganda as defined by the Criminal Code focusing on racist, religious and ethnic hate propaganda. While evidence of hate propaganda directed toward women, gays, lesbians, elderly, youth and disabled persons exists, using an exclusive definition to measure the amount of hate propaganda in Canadian society significantly lowers our perception of how much hate propaganda actually exists. The mater of definition is critical; if the exclusive definition is used, then a much smaller number of incidents are likely to be prosecuted as hate propaganda. This observation is borne out by the low number of cases successfully prosecuted in Canada since 1970. Since Bill C-3 provisions became part of the Canadian Criminal Code almost three decades ago, there have been only three cases with successful convictions out of a total of five prosecutions (Anand, 1997:224; Suriya, 1998:51 Classification of Identifiable Groups Section 318(3) of the Code defines “identifiable group” as “any section of the public distinguished by colour, race, religion, or ethnic origin” (s. 318.(3)). Cohen (2000:79) reports that between 1990 and 1996 there were six proposals to add sexual orientation to the list of identifiable groups. There have also been various attempts to add age, sex, and other categories in need of protection. As early as 1984, and as recent as 1994, 1997 and again in 2000, and 2001, Private Member’s Bills have unsuccessfully been introduced to attempt to expand the definition of hate propaganda to encompass the unprotected groups such as age, sex, sexual orientation, and mental and physical disability. There have also been attempts through private members bills to limit hate propaganda on the internet. Only one member of Parliament, Margaret Mitchell, has proposed a comprehensive overhaul of sections 318 and 319, which would include expanding the list of identifiable groups and the grounds for prosecution and removing the mens rea requirement from subsection 319(2).7 This proposal died before the 36th Parliament convened, and only MP Svend Robinson has proposed similar amendments subsequently. There have been three documented requests to change the provisions in the Criminal Code for the purposes of limiting hate literature on the internet. Twice in 1995 and once in 1998, requests were made to pass new legislation for the purposes of controlling the possession of child

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pornography on the internet and limiting racist hate propaganda on the internet (Goldschmid, 2001). As Cohen (2000) notes North America is currently undergoing a “third wave” of hate propaganda, “characterized by the dissemination of cyberhate, the expansion of target groups, and the corresponding rise in hate crimes directed at women and members of minority groups” (Cohen, 2000:71). After September 11th the Government of Canada introduced the Anti-Terrorism Act (Bill C-36) which if passed would change two aspects of the present laws relating to hate propaganda. First, the bill proposes changes to the interpretation Subsection 13(2) of the Canadian Human Rights Act referring to the communication of hate propaganda over the Internet.8 Second, the bill proposes changes to warrant of seizure where a judge has reasonable grounds to believe that hate propaganda is stored on and made available to the public through a computer system.9 Third, under section 430 of the Act punishment for committing the act of mischief relating to religious property is outlined (Department of Justice, 2001). Technical Requirements The limited number of cases prosecuted under the Criminal Code may be due to stringent technical requirements. Debates on changing the Criminal Code hate propaganda provisions centre around the issues of technical reforms such as the requirement of “wilfully,” the Attorney General’s consent, and freedom of speech. Some question whether the concept of wilfull intent is useful. Proving wilfull intent is often difficult when the standard of proof is so high. Despite several recommendations in favour of change, to date, the requirement of wilfull intent remains unchanged. As a result of Buzzanga and Durocher (1979), the Special Committee on Visible Minorities in Canadian Society (Canada, House of Commons, 1984) recommended the removal of “wilfully” as a requirement from section 319(2). However, the Special Committee on Racial and Religious Hatred of the Canadian Bar Association (Canadian Bar Association Special Committee on Racial and Religious Hatred, 1984) opposed the abolition of the requirement of “wilfully” from the provision. A year later, dissenting from the position of the CBA Committee recommendation, the Special Committee on Pornography and Prostitution recommended the removal of “wilfully” (Canada, 1985). To date, only the most extreme cases have been caught by the ‘wilful promotion’ test. As was seen in R. v. Keegstra, “The hate monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group (Keegstra, 1990:777)” (Moon, 2000:133). Underreporting Incidents of Hate Propaganda A central deficiency of all criminal justice statistics is that a proportion of incidents are never reported to police. This proportion (known as the ‘dark figure’ of crime) varies from offence to offence, and as Roberts notes (1995:x) may run as high as 95 percent for certain crimes. There are several reasons to believe that the percentage of offences that are not reported

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to the police may be particularly high for hate propaganda crimes. First, victims may fear additional victimization. Second, victims of racially or religious motivated hate propaganda may be apprehensive that the criminal justice system will not take their reports seriously enough. Hate Propaganda Patterns in Canada and other Jurisdictions A second means of assessing the extent and degree of hate propaganda is to track Criminal Code investigations and prosecutions of hate propaganda of which there have been few in Canada. Although Bill C-3 provisions came into law, after nearly three decades, there have been only three cases with successful convictions. Despite these successful convictions it would be problematic to suggest that these three cases are the only incidents of on-going wilfull promotion of hatred in Canadian society since 1970. Hate Propaganda Research in Canada: Evidence of the Impact of Hate Propaganda As noted above, this report summarizes data from three sources: caselaw, social science and legal literature, human rights legislation and qualitative data from interviews conducted with non-governmental organizations in Canada. The result of this exploratory research provides a basis for future investigation. Caselaw Evidence of hate propaganda in the existing caselaw examining discrimination experienced by women, lesbians and gays, disabled persons and youth and seniors reveals that the criminal justice system has acknowledged the effect of discrimination on the expanded groups. Indeed, the inclusion of the expanded groups in the Charter signals this recognition. The trend suggests that while acknowledgement of harm exists, there is little consensus about expanding the Criminal Code definition to include groups protected under the Charter. In examining the caselaw to date it becomes evident that human rights and criminal caselaw recognizes the impact of discrimination yet changes to the Criminal Code remain illusive. Since there have been no Criminal Code hate propaganda prosecutions related to sex, sexual orientation, mental or physical disability or age, victims have turned to human rights commissions for redress, however, because Commissions focus on individual acts of hatred the systemic nature of racism, sexism, heterosexism, ableism and ageism is seldom explored through the complaints. At times, complaints are dismissed by the Commission based on “freedom of expression” arguments. For example, in a recent complaint, a gay man in Toronto complained about a full page advertisement in the Globe and Mail protesting against the “gay lifestyle” but the case was rejected by the commission on freedom of expression grounds. The expanded groups have turned to human rights legislation for recourse against hate propaganda however, based on individual complaints the systemic nature of discrimination against the expanded

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groups is not addressed. This is the same argument raised by disabled Canadians as well as seniors and youth. The issue of sexist hate propaganda arises in Criminal Code obscenity cases which must deal with the question of how far the state should go in limiting violent pornography. Through the caselaw, some feminists have argued that evidence of sexist hate propaganda in the form of violent and degrading pornography is harmful to women as a group, while others have argued that any move to limit erotica will lead to censorship. Anti-pornography feminists do not argue for more stringent obscenity laws; rather, they view such materials through the equality provisions in the Charter. The Extant Research on Hate Propaganda An examination of the social science, criminological and legal literature reveals that evidence of sexist and heterosexist hate propaganda is widely acknowledged in the literature. In particular, the issue of sexist hate propaganda has been well documented since the seventies in the United States and Canada. Documentation of hate propaganda directed toward the mentally or physically disabled and aged is more vague. While the language of “hate” is not used, in some articles evidence of verbal and written discrimination on the basis of age or ability are documented. While extensive research on racist and religious hate propaganda and genocide exists in legal jurisprudence, literature and research on sexist, heterosexist, ageist and ableist hate propaganda (as defined by the Code) is limited. The legalistic conceptualization of racial and religious hate propaganda is limited to the Criminal Code definition so that while an immense body of literature exists on all the existing racist hate propaganda cases prosecuted to date in Canada, commentary on hate propaganda directed at women, lesbians, gays, the mentally and physically disabled and youth and seniors falls outside the existing framework. In the existing literature the “others” (the expanded groups) have attempted to argue that their exclusion legitimizes hate propaganda against their group and that they should therefore be protected within the Criminal Code. The definitions of sexist hate propaganda utilized by women’s groups is highly influenced by American conceptualizations of civil liberty violations, notably that outlined by Catharine MacKinnon and Andrea Dworkin (the Minneapolis Ordinance). Anti-pornography ordinances in the United States attempt to frame the issue of sexist pornography in contrast to violations perpetuated against African Americans, suggesting that pornography situates women as second class citizens. Thus, violent and degrading pornography is conceptualized as both the symbol and practice of sexism. While Canadians have resisted conceptualizing pornography as hate propaganda, the Supreme Court of Canada in Butler, stated: “[t]he message of obscenity which degrades and dehumanizes is analogous to that of hate propaganda” (Butler, 1992:28). Butler

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also established that proof of harm was not required to establish that dehumanizing and degrading pornography may cause severe psychological harm (Butler, 1992:29). This case forced the Supreme Court to consider the difference between erotica and degrading pornography however, harm continues to be framed through the obscenity discourse making claims of hate propaganda difficult. Because criminalizing sexist hate propaganda is not about the moral regulation of sexuality, feminists recommend this issue be examined outside the realm of obscenity law and viewed instead in terms of the equality provisions in the Charter. Since federal and provincial human rights legislation only deals with individual acts of discrimination, the systemic nature of sexist hate literature is not conceptualized under the Canadian Human Rights Act. Feminists reason that if society requires the regulation of racist and religious hate propaganda then it seems reasonable that the same groups protected under the Charter should be protected under the Criminal Code. Sexual orientation hate propaganda also draws from the extant legal literature and caselaw. In utilizing the same framework used to explain the impact of social inequality on racial and religious minorities, sexual minorities define heterosexist hate propaganda to be material which encourages and supports hatred and the social oppression of gay and lesbian persons. Legalists have framed this issue by arguing that lacking a symbolic gesture of protection to sexual minorities in the Criminal Code, Canada legitimizes hate propaganda directed against sexual minorities. While sexual orientation is ‘read in’ as a prohibited ground of discrimination under the Charter and the Canadian Human Rights Act, proponents of inclusion argue that this mix has not been effective in countering the continuous barrage of homophobic hate propaganda. Human Rights legislation only focuses on individual acts of discrimination without analysis of systemic discrimination, which would be explored under the Criminal Code. The extant research on hate propaganda directed towards Canadians with disabilities, and those discriminated against on the basis of age is limited. The focus in the existing literature is on the discriminatory discourses that operate to exclude persons with disabilities, youth and seniors from equal status in Canadian society. The Charter of Rights and Freedoms guarantees equal benefit and protection of the law and prohibits discrimination based on physical or mental disability and Canadians with disabilities insist that all other legislation must be brought into line with the Charter. The literature suggests that Canadian with disabilities recommend individual acts of discrimination – in the form of hate propaganda – can be placed within a broader context and viewed as part of the discrimination experienced historically and collectively by members of the disadvantaged group. Likewise, a remedy which addresses the broader public interest in ending discrimination based on disability and age (i.e. goes beyond resolving the dispute between the immediate parties to a complaint) could be characterized as a systemic remedy. International Human Rights Legislation A search of domestic and international human rights law and legislation was conducted in

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order to assess whether other countries protect the expanded groups. Examination of legislative responses with particular attention to protections for sex, sexual orientation, age, and disability reveal that across international and domestic responses to the problem of hate propaganda race and religion are most likely to be protected. Minimal protection has been accorded to the categories of sex, sexual orientation, mental and physical disability and age. While the United Nations has institutionalized special responses to discrimination faced by each of the expanded categories, the language of “hate” and “hate propaganda” has not been used in relation to responses to discriminatory actions faced by sexual minorities, the aged, youth, or the physically or mentally challenged. A comparison of domestic remedies for hate propaganda reveals the same hierarchy of minority-rights claimants that pervades international law. Many nations have used hate propaganda laws to address a particular experience with racial or religious persecution. “Such laws aim to conclude a historical narrative that begins with persecution and ends with reconciliation, and enshrines a vision of racial and religious harmony into the criminal law” (Cohen, 2000:87). Just as sex, sexual orientation, age, and ability are absent from these narratives, so too are they absent from anti-hate legislation. A growing number of jurisdictions have prohibited sexual orientation hate propaganda, either in criminal or civil context (Cohen, 2000:87). Ireland, Norway, Denmark, the Netherlands and New South Wales have been the most progressive while the United States has remained an exception to the trend in criminalizing homophobic hate propaganda (Goldstein, 1993:95; Cohen, 2000:90). A limited number of jurisdictions have noted or responded to sexist, ableist and ageist hate propaganda. Non-Governmental Organizations Interviews with non-governmental organizations working with women, sexual minorities, the mentally or physically challenged, youth and seniors were contacted with the aim of gathering evidence of hate propaganda directed toward the expanded groups (sex, sexual orientation, metal or physical disability and age). Themes which evolved from this qualitative data reveal that women identify two issues of concern to them: 1) ongoing deliberate hate propaganda directed toward women who attempt to obtain services from abortion providers; and 2) written and visual material of a violent and degrading nature which ultimately situates them as second class citizens and violates their civil rights. Other themes that evolved from the literature was the ongoing struggle to have violent pornographic material categorized as hate propaganda. A vast amount of Canadian and American research has been conducted to prove a connection exists between the consumption of sexist and violent depictions of women and the reproduction of socially accepted sexist attitudes. Given the amount of political activism around this issue since 1985, the precedent set in Butler, and the protection of “sex” under the Charter and Canadian Human Rights Act, the inclusion of “sex” as a category in need of protection in the Criminal Code seems reasonable to feminists. However,

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some prefer extra-legal measures. Interviews with non-governmental organizations working with gays and lesbians reveal that there is much awareness of hatred directed toward sexual minorities in written material. While no Canadian organization officially tracks hate propaganda directed toward gays, lesbians, bisexuals and transgendered persons a vast historical archive exists from which to draw examples of past and present language likely to incite hatred against sexual minorities. Canadian legal research to date has focused on exploring the effect of hate propaganda upon sexual minorities with the intent of rationalizing the inclusion of sexual orientation as a category in need of protection under the Criminal Code. While sexual orientation is considered an analogous group in need of protection under the Charter, and is also protected under the Canadian Human Rights Code, gays and lesbians cannot technically charge a person or group with inciting heterosexist and homophobic hate propaganda. Gays and lesbians can seek redress through provincial human rights codes however, their attempts to do so have at times been thwarted by freedom of expression arguments which suggest that the interpretation of discrimination remains subject to heterosexist standards. The symbolic nature of the CHRA provisions outlining prohibition of the publication of discriminatory notices and hate messages suggests a willingness to prohibit discrimination on the basis of sexual orientation, however, the legislation only relates to the publication of discriminatory notices and the communication of hate messages, and not the promotion of hatred through public debate or religious opinion. In contrast to women’s groups, non-governmental organizations remain eager to have sexual orientation included as a group in need of protection from hate propaganda under the Code and continue to advocate for such inclusion. Non-governmental organizations working with Canadians with disabilities had little to say about hate propaganda directed toward those categorized as living with “mental or physical disability”. Evidence of systemic discrimination exists through documentation of various federal and provincial human rights cases through which disabled persons have struggled for equality as conceptualized through the Charter of Rights and Freedoms and the Canadian Human Rights Act (Council of Canadians with Disabilities, 2000). The critical social science and psychological literature helps to formulate an alternative discourse on disability which counters the existing conceptualization of the “normal” human body in contrast to “others” (Titchkosky, 1998, 2001). This literature strongly suggests that the systemic discrimination of differently-abled persons in Canada is virtually invisible and that much work is to be done to counter attitudes which sustain the dominance of able-bodied persons. Despite this acknowledgement in the literature, caselaw, constitution, and human rights legislation, ableist discrimination is not framed as hate propaganda. None of the community based organizations I contacted could provide me with evidence of blatant hate propaganda however, more subtle forms of discrimination are evident through harassment and denial of opportunity in housing and the labour force. Non-governmental organizations representing the interests of seniors and youth were also

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non-committal regarding their perception of whether there is evidence of hate propaganda against “age” and whether this group is in need of protection. Research conducted on non-governmental organizations working with youth and seniors did not uncover any specific evidence of hate propaganda however, the inclusion of “age” in the Charter and the Canadian Human Rights Act suggests there exist a committment on the part of Canadians to provide seniors and youth with human rights. Conclusions The findings of this report suggest there is a sound conceptual basis for conducting empirical research on hate propaganda against groups not currently protected by the Criminal Code. Investigation reveals that there is reasonable primae facie evidence of hate propaganda against the expanded groups, in particular against women and sexual minorities. Summary of Recommendations: The following recommendations were made to support the further study of evidence of materials that would constitute hate propaganda against expanded groups on the basis of sex/gender, age, mental or physical disability, and sexual orientation. ·

Research on hate propaganda directed toward any of the expanded groups should locate the development of hate propaganda provisions historically, politically, legislatively and socially. Future research in this area therefore needs to recognize the historical context in which hate propaganda laws developed in Canada. This includes the reasons for state intervention and the political context in which protected categories were first recognized.

·

Future research must evaluate the various attempts by political organizations to obtain inclusion. As well, researchers need to assess the impact of the inclusion of unprotected groups in terms of the freedom of expression provisions under the Charter. Can the inclusion of the expanded groups withstand Charter challenges? Given the limited prosecutions to date, this issue is hardly a reason to exclude the expanded groups from protection. Indeed, the inclusion of the expanded groups may merely provide symbolic recognition that Canadians do not tolerate hate propaganda toward groups already protected under the Charter.

·

Future research must consider not only the impact of hate propaganda on individuals but the impact on the larger community. When assessing the impact of hate propaganda on target populations, individual rights are inseparable from group rights. Groups experience degradation and suffering when individuals are harmed (Kallen, Lam, 1993).

·

It is essential that research conducted on hate propaganda recognize the importance of

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quantitative and qualitative data, and both be incorporated in furthering the research of community groups, academics and official government sources, such as police agencies who document incidents of hate propaganda. An approach that accounts for both quantitative and qualitative data allows for a broad-based research response to hate and bias activity. ·

Data should be collected on hate propaganda and bias activity (more broadly defined than hate crime) experienced by sex, age, mental or physical disability, and sexual orientation, to ensure that a total picture exists.

·

Definitions of hate bias activity constructed by experts should guide research. To specify the type of activity and expression that should be documented, the following definition of a hate or bias incident which includes both criminal and non-criminal hate bias activity: A hate or bias incident is an occurrence that, while not criminal in nature, does have an effect of discriminating, stereotyping, excluding, and/or harassing a person based on that persons race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor. Presence or activity of hate groups is included in this category. Definitions of sex, age, mental or physical disability and sexual orientation should be contextualized in their social context. This would include an assessment of the historical social construction of these categories, their meaning for individuals, and the impact of these categories on self perception.

·

A broad definition should be used to guide the collection of data: A hate or bias incident is not necessarily a hate crime (as defined in the Criminal Code). For that reason, priority should be given to community groups to collect and report data on hate propaganda against race, religion, colour, ethnicity, sex, age, mental or physical disability, and sexual orientation. Such data is likely to go beyond what the law defines as a hate crime and more accurately reflect what a hate incident is in a given community. Research should be conducted on whether the definition of hate propaganda in the Code is too restrictive. Based on feedback from community groups, the legalistic definition of hate propaganda currently used is too restrictive. Definitions of hate-biased activity used by community groups are generally much broader, encompassing a wide range of hate biased activity from hateful expressions to actual physical attacks and intimidation.

·

To assess the extent and impact of hate propaganda on unprotected groups a bibliography of hate and bias research studies (including quantitative and qualitative studies) by government, academics and community groups, should be compiled. The bibliography would include past studies, current projects, as well as reference to studies on policy issues related to the issue of hate propaganda directed toward the protected and unprotected groups (sex, age, mental or physical disability, and sexual orientation).

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·

Research should be conducted on what cooperation there is between and within provinces in sharing data and information on hate propaganda incidents. The research should also assess whether there are provincial and federal infrastructure in place for dealing with the issue of hate propaganda and hate bias activities.

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Given the participant’s confusion over what constitutes a hate crime and what constitutes hate propaganda, identified groups need to be redefined to address inconsistencies between sections 718, 318 and 319.

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Given that one of the objectives of the report is to provide information from the expanded groups and the extant literature on alternatives to the Criminal Code Cohen (2000) suggests two options for change: challenging the constitutionality of the Criminal Code and revisiting group libel. Future research should focus on the logistics of both of these two options.

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The operational definitions used in assessing harm need to be examined to assess the diversity and range and how these definitions impact on findings.

·

Symposia: Experts working on the issue of hate propaganda in Canada should work together to: exchange ideas and data on the impact of hate propaganda on minority groups, assess the impact of adding in groups to the Criminal Code, and evaluate victimimpact statements from victim groups, with the aim of providing recommendations to the Minister of Justice. This would help to develop research networks.

·

Given that one of the objectives of the report is to review alternatives/limitations to criminal sanctions, experts from the Hate Bias Activity Roundtable recommend that a catalogue should be compiled to disseminate models of community responses to hate propaganda across Canada. The catalogue would enhance the sharing of information and the development of strategies. It would also help to identify gaps in research data, definitions of hate propaganda, and programs.

·

In terms of reviewing alternatives/limitations to criminal sanctions NGOs recommend the impact of making technical changes to the Criminal Code should be studied, including changes to the requirement of wilfully and the attorney generals permission to proceed with a case. The high standard of proof required to prosecute an individual or group under Canada’s Criminal Code has meant that only the most heinous crimes have been caught by the legal net. The existing standard of proof suggests that including sex, age, mental or physical disability, and sexual orientation, will not lead to an increase in cases. Given the broadening of International Covenants to recognize harms to women and in some countries sexual minorities, it seems logical for Canada to comply to with the Charter or revisit the issue of group defamation.

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Human Rights Commissions ·

A part of the process of reviewing alternatives/limitations to criminal sanctions involves investigating the effectiveness of present limitations to legal responses. Human rights commissions should create a tracking and information-sharing system on hate and bias activity with the aim of sharing information on cases involving hate propaganda.

·

Research should be conducted on the response by Human Rights Commissions to sexist, racist, homophobic, ageist, ableist hate propaganda. While Human Rights Commissions are mandated to respond to individual complaints, and do not consider the impact on the wider group, rejection of complaints of hate propaganda should be documented to assess whether Human Rights Commissions are able to adequately catch incidents which cannot be prosecuted under the Criminal Code.

·

Research could be conducted on cases that are rejected by Human Rights Commissions to ensure that processes are in place which are sensitive to complaints and receptive to the type of problems facing unprotected victims of hate propaganda. Research should be conducted on how to develop a national strategy on how to deal with hate and human rights violations that do not go through the criminal justice system.

·

Research should be conducted on (given cutbacks to staff) on whether Commissions have a process in place that is sensitive to complainants and receptive to the issues facing those who put forward complaints about hate propaganda. Are there alternative forms of complaint for those whose cases are not accepted by the commission? Are complainants unduly pressed to go through a mediation process? Do commissions track the outcome of and implications of key cases involving 13(1)?

Attorney General ·

There is a huge gap in our knowledge of how much hate propaganda exists in Canada. Research should be conducted on cases which have been rejected by Attorneys General, the basis for the rejection, and whether any cases were brought forward by women, youth, older persons, differently-abled persons, and sexual minorities. Included in this research should be the assessment of how many reports of hate propaganda incidents are made to police, how these cases are responded to, and how many times complaints have been lodged by any of the unprotected groups. To what extent do police document such complaints? The aim is to assess the extent to which hate propaganda experienced by the expanded groups fall through the cracks.

·

Research should be conducted on the effectiveness of the policy of the need for the

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consent of the attorneys general to prosecute hate and bias crimes. What is the effect of requiring this consent on target groups and excluded groups? If consent is necessary, research should be conducted on whether it is possible for the provincial Attorneys General to reduce the response time of Crowns. ·

The symbolic nature of anti-hate propaganda legislation is suggested to be effective in signalling to hate mongers that Canada does not tolerate hateful expression. Prosecutions by the Canadian Human Rights Commission, the CRTC, and the Government of Canada suggest that the most heinous acts will be caught by Canada’s legislative framework. Future research should concentrate on whether groups currently protected see the present legislative framework to be effective, what changes they would recommend, and whether the expanded groups would impact on their protection.

Expanded Groups ·

American and Canadian research on the harm of pornography suggest that pornography promotes hatred of women. Using the same standard which is used to measure the harm of racist hate propaganda, research should be conducted on the effect of pornography on women as a group. Can the same standard used to assess the effect of racist hate propaganda be used to assess the impact of sexist and degrading imagery on women? If not, why not? In Canada the same measure used to assess racist hate propaganda has not applied to sex. A double standard seems to exist. How does this double standard impact on conceptualizing and measuring sexist hate propaganda?

·

Feminist groups argue that protests against abortion providers that work to prevent access to reproductive services is an example of hate propaganda directed toward women and professionals. The murders of at least 3 doctors in the last decade strongly suggests that a link exists between the anti-abortion movement and attempts to prevent abortions. Experts in the area of reproductive rights should be surveyed to measure the impact of protests on health care workers, clients, and the perception generated in the public. What is the link between attempting to prevent women from accessing reproductive services and the promotion of hate propaganda against women?

·

Tracking of hate propaganda against sexual minorities should be conducted through community groups. There is a huge gap in the research on sexual minority hate propaganda in Canada. The research presented in this report documents hate propaganda against sexual minorities. The research shows that much of the expressed views would not be defensible under the Criminal Code provisions. Several precedent setting cases have established that sexual orientation is an analogous ground within the equality provisions in the Charter. Canadas Human Rights Commission has recognized sexual orientation is a category in need of protection. The hateful language directed toward

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sexual minorities indicates that there is a need to symbolically protect this group from harm. ·

The research on hate propaganda directed toward age is limited. While the literature suggests that this form of hate propaganda exists, it was difficult to unearth evidence for the purposes of this report. For this reason, it is suggested that a definition of hate propaganda directed toward age consider the social construction of the category of age, including a recognition of ageism in the cultural designation of youth and older persons.

·

Research conducted on differently-abled persons must consider the social meaning accorded to definitions which are used, and the historical context in which this group has been othered. This includes an understanding of how differently-abled persons are conceptualized in contrast to able-bodied persons.

·

This report documents the way in which ‘sexual orientation’ has been defined and points to literature and legal cases. It has been claimed that homosexual sexual orientation means (among others) pedophilia, a threat to humanity, disease, gender-confused, and a threat to societal values. Canadian caselaw has defined gay and lesbian persons as those who have a preference for those of their own sex. Despite this recognition, hate-mongers continue to attempt to redefine the commonly held definition in the Charter and the Canadian Human Rights Act. Future research which conceptualizes sexual orientation must consider the broader social and historical context in which gays and lesbians continually experience homophobic hate propaganda.

·

Since youth and elder input was minimal in this research project, there is a need for more research on the experiences of youth and older persons about their experiences of hate propaganda. More youth involvement is needed in understanding the forms of hate propaganda experienced by this group. As well, more involvement is needed from seniors groups about their awareness of hate propaganda.

·

In order to build on the research conducted by the Cohen Commission future research on the social psychological effects of hate propaganda on members of the expanded target groups and alleged perpetrators, should focus on four factors 1) The susceptibility to pseudo-logic, unwarranted generalizations, and circular argument; 2) The declarative effect of legislation with regard to attitudes toward crimes of violence and slander; 3) The effects of legislated norms upon violent or slanderous behaviour; 4) The effects of social support, either legal or informal, in minimizing the harmful consequences of hate propaganda for the intended and unintended victims (Cohen, 1966).

·

In feminist research on pornography the group harm argument is used. The evidence reveals a causal connection between violent pornography and violence against women

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and the women’s community. The inclusion of sex as a protected category in sections 318 and 319 of the Criminal Code could provide support for this claim. The Butler decision establishes the harmful nature of violent pornography and the impact of this type of pornography on the way men view women, and the ways that women see themselves. Protecting sex from hate propaganda would establish in law a recognition of harm already established in Butler. Given the problems of proving group harm in the case of pornography, it has been suggested that the concept of autonomy may provide a more suitable foundation for regulation. With the inclusion of sex as a protected category in sections 318 and 319, the offense of incitement to sexual hatred might serve as a model for legal constraints on violent pornography (Easton, 1994). Within this conceptualization violent pornography must be distinguished from erotica (Busby, 1999; Johnson, 1999). ·

Given the evidence of hate propaganda directed toward transgendered persons, the research should be extended to the experience of transgendered persons who may be targetted based on their gender orientation (Namaste, 1993;1995).

·

Future research must consider the fact that despite recent legal recognition of same-sex relationships and family status homophobia is largely sanctioned by the state. Research on the psychological effect of sexual orientation hate propaganda reveals that homophobia is firmly structured in society, so that it is the individual and combined effect of these interconnected tools of homophobia, and not the mere pluralization of individual defamation or libel, that ultimately justifies state sanction of anti-gay hate propaganda (Cohen, 2000:76).

·

Future research needs to explore the range of physiological and psychological traumas experienced by members of sexual minorities, all of which exacerbate feelings of vulnerability and isolation (Cohen, 2000:74). Second, research should extend beyond the target group to assess the detriment to freedom of expression, freedom of association, and democracy. Third, research needs to explore how sexual orientation hate propaganda reinforces (and is reinforced by) the other tools of homophobia, which include harassment, gay bashing, overt and covert discrimination, extortion, stigmatization, murder and genocide. Finally, research must focus on the impact of exclusion; the absence of protection from hate propaganda particularly in jurisdictions such as Canada, where other target groups receive protection (Cohen, 2000:74-75).

·

Research needs to consider the social and historical context in which hate propaganda Thrives. Research on hate propaganda directed toward the expanded groups must take into consideration the systemic nature of hatred in Canadian society (McNamara, 1994:28). Focusing on the individual experience of hate propaganda without a recognition of the broader social and historical context minimizes both the depth and complexity of hate in Canada (Renke, 1994:837). By only focusing on events which fit

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the Criminal Code definition, researchers risk obtaining only a limited understanding of the range of hate-motivated activity in Canadian society. ·

Research on hate propaganda against the expanded groups should be conducted by nongovernmental organizations who are best situated to document instances of hate propaganda. Groups that work most closely with women, gays, lesbians, bisexuals, transgenders, youth, older persons, and differently-abled persons should be supported in their efforts to gather data on hate propaganda for the purpose of mobilizing responses.

·

Research should be conducted on how communities respond to hate propaganda. How do feminists, youth, older persons, the differently-abled and sexual minorities work within their own communities to counter-act the effects of hate propaganda? Are their methods effective?

Law Enforcement ·

In terms of the alternatives/limitations to criminal sanctions NGO’s talked about the need to research the response by criminal justice personnel. Research on the police response to hate propaganda experienced by the expanded groups is required in order to understand barriers to reporting. While communities believe that sexist, ageist, ableist, homophobic and heterosexist hate propaganda exists and has an effect on individuals and groups, it is difficult to do anything about it without action. As Suriya noted (1998) without broadbased consensus in the Canadian Parliament and society at large there will continue to be deep-seated and fundamental conflicts among groups within Canadian society at the level of the law enforcement process itself (Suriya, 1998:67). The non-enforcement of section 319(2) seems to be the normative consensus. Others have pointed to the role of the Attorneys General in deciding whether to prosecute, and the apparent lack of judicial support for the hate crime provisions (Suriya, 1998:68). Research needs to be conducted therefore on lack of action by law-enforcement personnel. Research needs to be conducted on attitudes among the judiciary and Attorneys General. Research should be conducted on police resistance toward Implementing Bill C-3: Some suggest that even if there were an increase in the number of prosecutions and the protection of expanded groups, that there would not necessarily be a significant increase in convictions (Suriya, 1998:70). It may be possible that Attorneys General have prosecuted hatemongers under section 319(2) whenever a conviction is most promising. Some may choose not to prosecute based on the belief that the case will promote the views of hatemongers. Additionally, the cost of prosecuting is high, as evidenced by the Keegstra case. If it is not the wording of Bill C-3 or the exclusion of the expanded groups that prevents prosecution, then it is suggested that it is the “on going competition over the enforcement and legitimacy of Bill C-3 provisions which prevent convictions” (Suriya, 1998:72). If this is so, then research must be conducted on resistance toward implementing Bill C-3

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provisions at the level of law enforcement. What are the attitudes among police personnel toward hate propaganda occurrences which target the protected and unprotected groups? ·

NGO’s recommend research be conducted to assess the procedures and resources used by police services to respond to incidents of hate propaganda experienced by the expanded groups. The policies and procedures used by various law enforcement agencies in responding to hate propaganda should be assessed and compiled in a catalogue.

·

NGO’s recommend that research needs to be conducted on why police officers have difficulty identifying hate propaganda and why identified crimes are not documented and processed through the criminal justice system.

·

NGO’s recommend that research needs to be conducted on police attitudes and perception of hate propaganda and hate-motivated activity: It has been noted that police forces and intelligence favour information and resources on hate groups even though individual random acts of hate are a much larger problem. Research should be conducted on training strategies and resources on hate propaganda and hate bias activity to let enforcement and community agencies know what is available and what is being done.

·

NGO’s recommend research needs to be conducted on the role of police in referring victims of hate propaganda to community agencies and victim assistance groups. Are police referring victims to appropriate support services?

·

NGO’s recommend research be conducted on whether police-community liaisons contribute to reporting hate propaganda incidents. Would better integration of community policing help eliminate some sources of under-reporting?

International Response ·

Matsuda (1995) argues for an international standard on hate propaganda. Research on the feasability of implementing an international standard on hate propaganda should be conducted. The concept of group defamation has been used in Canada to examine the harm to groups. This concept attempts to go beyond conceptualizing individual harm to group-based harm and various recommendations have been made to change the Criminal Code (Lawlor, 1985).

·

Future research should consider the state of existing anti-bias workshops and programs in Canada and internationally to assess whether they include an analysis of sexist, racist, homophobic, ageist, and ableist hate propaganda. Through research, an appropriate methodology could be determined for evaluating anti-bias workshops and training programs for those involved in anti-bias and anti-hate work.

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·

Experts need to assess international and national legislative responses to hate propaganda to assess models implemented elsewhere, groups protected in other countries, and whether International Covenants protect women, youth, older persons, the differently abled and sexual minorities from hate propaganda.

·

Given that several possible models exist for reporting and responding to on-line hate propaganda, support should be made available to both survey and catalogue key international and domestic responses to internet hate propaganda and to evaluate various models.

Internet ·

A study of existing clearinghouses, supported by Web sites, should be conducted to study the existing data and research on hate propaganda, in particular that directed at the expanded groups.

·

A study of internet sites in Canada promoting hatred should be conducted to assess the amount of hate propaganda disseminated against women, youth, older persons, differently abled persons and sexual minorities.

Appointment of a Special Committee ·

In order to build on the work that has been conducted in this area since the Cohen report, the Minister of Justice should appoint a Special Committee on Hate and Hate Propaganda to assess the state of organized hate groups and their impact on minority populations since 1966. The Committee should be representative of diverse communities.

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A Special Committee on Hate and Hate Propaganda should be formed to facilitate research on the impact of hate propaganda on unprotected groups -- specifically, age, sex, mental or physical disability, and sexual orientation, or ad hoc groups and make recommendations.

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Research should be conducted on the effectiveness of the existing law in protecting identifiable groups from hate propaganda, keeping in mind the question of whether extending the prohibited grounds of discrimination to include -- age, sex, mental or physical disability and sexual orientation -- will be effective.

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Research should be conducted to consider the impact of including the current unprotected groups as identifiable groups in need of protection under the hate propaganda provisions of the Criminal Code.

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·

Research should be conducted on the persons and groups involved in Hate Propaganda activities in Canada, on the basis of sex, age, mental or physical disability and sexual orientation. This would include an investigation of the hate literature known to be distributed in Canada, via published and unpublished materials, leaflets, pamphlets, posters, television and radio broadcasts, internet Web sites, and any other means of communication. Samples of Hate Propaganda in Canada should be provided.

·

Research should be conducted on private members bills related to the issue of hate propaganda presented to the House of Commons since 1966, to assess reasons given for not expanding the protected groups.

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Research should be conducted on hate propaganda materials and their distribution, targetting sex, age, mental or physical disability and sexual orientation.

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Research should be conducted on hate and hate propaganda in other countries as well as United Nations documents, to assess the scope of the problem and its impact.

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Research should be conducted on the social-psychological effects of hate propaganda against the identifiable groups and on the basis of -- age, sex, mental or physical disability and sexual orientation, -- and the role of law and education as controls.

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Research should be conducted on the Condition of the Law in Canada and elsewhere to assess whether and how other countries have extended their protections to groups based on age, sex, mental or physical disability and sexual orientation.

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The Committee should designate a researcher to conduct research on how many requests have been made to Attorneys General since 1970, the grounds for not proceeding with complaints, and whether any groups have attempted to establish that hate propaganda has been directed toward age, sex, mental or physical disability, and sexual orientation. The aim is to collect data on the extent of hate propaganda directed at the protected and unprotected groups since the law was implemented in 1970.

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1.0

INTRODUCTION

1.1 Introduction The 1966 Report of the Special Committee on Hate Propaganda in Canada (the Cohen Report) claimed “[h]owever small the actors may be in number, the individuals and groups promoting hate in Canada constitute “clear and present danger” to the functioning of a democratic society” (Cohen, 1966:24; Cohen, 2000:80-81; Suriya, 1998). Despite this early statement, Canadians remain unclear as to what actually constitutes hate and hate propaganda. Numerous reports have proposed that groups protected under Canada’s Charter should be protected under Canada’s Criminal Code. However, to date, “identifiable groups” are distinguished only by colour, race, religion, or ethnic origin. Unresolved is the issue of whether the list of identifiable groups should be expanded, whether the mens rea requirement should be removed from sections 318 and 319, and whether the consent of the Attorney General should remain as a prerequisite for prosecution of the Code under the hate propaganda provisions (Cohen, 2000:80-81). Equally problematic is the complex application of laws on freedom of expression, defamation, obscenity, and group defamation. Experts therefore claim “the law is random and confusing”(Martin, 1995:212). Since 1966, there have been numerous reports, recommendations and working groups formed to deal with the question of whether the existing laws are effective and the potential expansion of “identifiable groups” under the Code (Canada, 1966; Kaplan, 1993; Canada, 1996). The release of Keegstra10 prompted the Department of Justice to establish a working group on hate propaganda and to charge it with investigating the possibility of: · · ·

expanding the list of identifiable grounds, removing the mens rea requirement from sections 318 and 319, and removing the consent of the Attorneys General as a prerequisite for prosecution (Cohen, 2000:80).

The working group (Federal, Provincial, Territorial Working Group) was composed of federal, provincial, and territorial ministers of justice (Cohen, 2000:81). While no longer active in its original form, it evolved into a working group. In 1998 the diversity working group released several recommendations which were approved in principle by the federal and provincial ministers responsible for justice at a meeting in Regina (Bronskill, 1998:A3 as noted in Cohen, 2000: 81). As Cohen (2000:81) notes, because the Keegstra Court cited the narrow list of identifiable grounds, the mens rea requirement, and the consent of the attorney general as reasons why subsection 319(2) survived, the ‘minimal impairment’ branch of the section 1

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analysis, proponents of an expanded provision may have to establish a specific and pressing substantial objective to withstand future Charter challenges (House of Commons Debates, 1992:14133). As a result, “the challenge faced by Parliament, as well as by lawyers at the Department of Justice, is intricate” (Cohen, 2000:81). However, despite the question of whether the hate propaganda provisions in the Code violate freedom of expression outlined under the Charter, Cohen notes that the issue of expansion of identifiable groups is a “a symbolic antidiscrimination measure, not an unnecessary act of censorship” (Cohen, 2000:81). Given the low number of successful prosecutions since 1970 the present law may be argued to be purely symbolic rather than effective in countering racist and religious hate propaganda. In focusing on harms to race, colour, nationality and religion, the Special Committee (1966) attempted to answer a number of questions, providing research findings on: 1) the psychological harm caused to individuals and groups, 2) the legal protections under the Criminal Code and the international response to group defamation, and 3) evidence of hate propaganda directed to these groups. The Cohen report provided recommendations to the Minister of Justice, some of which were implemented in Bill C-3 and legislated into law in 1970. With the findings of this ground-breaking report in mind, I have tried to build on the findings provided in 1966, to compare the present state of knowledge about and experience of hate propaganda in Canada. Early conceptualizations of what constituted hate propaganda were framed in relation to International Conventions and protections which focused primarily on harms based on race, religion, nationality and colour. Given changes in our society and a developing awareness of harms to other groups, particularly those protected under the Charter, the question arises of how to conceptualize and respond to the problem of hate propaganda directed toward women, the aged, youth, the differently-abled and sexual minorities, all of whom are protected under the equality provisions of Canada’s Charter. Some have argued that because certain groups are protected under the Charter it makes sense to include them in the Criminal Code (Law Reform Commission, 1986; Canada. 1985:317-323; Mahoney, 1992:242). Others suggest that the question of inclusion it is just plain “silly” because the law itself is confusing and contradictory (Morton, 1995:213). In responding to the initial question of conceptualization, one cannot deal with the issue of inclusion or harm in isolation from the socio-historical, legal and political context in which the debate arises. There have been many debates over the legal validity of section 319(2) in relation to the freedom of expression provisions under Canada’s Charter as well as debates about whether Canada has gone far enough to protect groups and individuals from group defamation (Sanjeev, 1997, 1998; Canada, 1984; Canada, Secretary of State, 1982; Canadian Bar Association, 1984; Law Reform Commission of Canada, 1984, 1988; Mahoney, 1992; Bessner, 1988; Bottos, 1989; Braun, 1988; Caldwell, 1984; Dubick, 1990; Elman, 1994; Fish, 1989;

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Heinrichs, 1988; Lethbridge, 1992; McKenna, 1994; Mahoney, 1992; Rauf, 1989; Solomon, 1995; Valois, 1992; Weinrib, 1991; Rosen, 2001; Dutton & Cornish, 1995; Gilmour, 1994; Petersen, 1991). 1.2 Purpose of the Report This report outlines the present state of group defamation and group libel in Canada and contrasts the approach taken with international responses, with a special consideration of whether there is recognition of potential harm toward age, sex, mental or physical disability and sexual orientation. The purpose of this report is to provide a conceptual “think-piece” that explores evidence of materials that would constitute hate propaganda under sections 318 or 319 of the Criminal Code, against groups not presently covered by the definition of identifiable group. In particular, evidence of hate propaganda targeting individuals on the basis of colour, race, national or ethnic or national origin, religion, sex, age, mental or physical disability, or sexual orientation (referred to as expanded groups). The goals of this research are twofold: ·

To explore the conceptual and methodological grounds for conducting research of materials that would constitute hate propaganda against the aforementioned expanded groups.

·

To determine if there is reasonable prima facie evidence of hate propaganda against the aforementioned expanded groups.

The report is divided into eight sections. The first introductory section outlines the purpose and includes a methodology section outlining how the information for the report was collected. This section also outlines the various theoretical discussions and arguments in favour of and against hate propaganda laws, punishing expression versus punishing expression linked to criminal conduct, and the need for education, social policy and human rights. The chapter outlines the various means by which hate propaganda has been challenged in Canada through criminal law, federal statutes, provincial laws, and the constitution with a critical analysis of the alternatives and limitations of to criminal sanctions. The second section explores approaches and policy decisions in other jurisdictions with particular attention to what constitutes an ‘identifiable group.’ Sections three to seven addresses the question of whether there is a sound conceptual basis for conducting empirical research on hate propaganda against groups not currently protected by the Criminal Code. Included in this objective is the review of the extant research on hate propaganda, such as definitions and measures employed in previous research,

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methodological issues, and results and recommendations. Based on data obtained from community groups, extant research on the effect of hate propaganda, and review of the definitions and measures utilized in previous research and caselaw. Chapter eight provides recommendations for future research on hate propaganda. 1.3 Methods Used in this Report In order to lay the basis for future research on this topic it is essential to assess the qualitative and quantitative legal, social science, and community-based knowledge in Canada and other jurisdictions (Kirby, McKenna, 1989). I decided to allow the research data emerge from a variety of sources: 1) the voices of marginalized persons; 2) the extant social and legal literature, and 3) international and domestic conceptions of appropriate responses to hate crimes. For this reason, my research approach is to obtain feedback from community-based organizations and to reexamine the legal, criminological, social science and psychological research. Overall, to complete the objectives of this report, four approaches were taken: a review of the literature, a review of case law and legislation, analysis of evidence from non-governmental organizations, and an assessment of hate propaganda on the Internet directed against the expanded groups. 1.4 Operational Definitions of Hate Propaganda The definition of hate propaganda employed when talking with community group representatives and when searching the internet were not restricted to the definition outlined in the Criminal Code. I allowed participants to define for themselves what constitutes hate propaganda, and asked them to consider whether their formulation could fit within the confines of the Code. For some, the statute was moot since their definition of what constitutes hate propaganda is vastly different from that outlined in the Code. Other problems with using the Criminal Code definition is that some people are unaware of the full text of the Code, find it too complex, and have limited knowledge of the history behind the statute and the reasons for its implementation. The decision to allow participants to define ‘hate propaganda’ was meant to catch forms of hate propaganda that might not be caught by the legal definition and, be linked to the experience of the expanded groups. For example, feminists have a different idea of what constitutes sexist hate propaganda in contrast to pornographers. Traditionally, those who have been able to define and legitimize “harm” have had the power to do so, in contrast to disenfranchised groups who are less powerful and whose discourse is marginalized. For this reason, a open-ended definition of hate propaganda was utilized in this study. 1.5 Literature Review

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The first approach was to complete a literature review of the domestic and international publications in the area of social sciences, humanities, and law. A vast amount of literature exists. The aim was to compare and contrast definitions of hate propaganda and methods used to study hate propaganda, to document the current theoretical perspectives on this issue in Canada and to contrast this conceptual framework with the thinking on this issue in other countries. The aim was also to document community-based knowledge (obtained from non-governmental organizations). 1.6 Law and Legislation The second methodological approach taken in this project was to explore the domestic and international case law and statutes. Research was conducted on the existing case law and legislation in Canada which relates to the identifiable groups under section 15 of the Charter (equal rights on the basis of colour, race, national or ethnic or national origin, religion, sex, age, or mental or physical disability) and analogous groups such as sexual orientation. Research was also conducted on existing approaches and policy decisions in other jurisdictions both provincially and internationally. The aim was to find out whether other jurisdictions have implemented protections for those groups protected under section 15 of the Charter and what approaches and policy decisions are relevant to the protected groups under sections 318 and 319 of the Criminal Code. 1.7 Interviews with Non-Governmental Organizations The third methodological approach was to interview non-governmental organizations in Canada to assess whether there is evidence at the grass-roots level of hate propaganda directed toward the unprotected groups. This includes assessing what non-governmental organizations define as hate propaganda. Ultimately, the aim of the contacts was to 1) first, establish a list of contacts in the field and 2) second, to assess the existence of hate propaganda against groups not currently covered by the definition of identifiable groups under hate propaganda provisions, in particular, individuals who are targetted on the basis of sex, age, mental or physical disability, or sexual orientation (referred to as expanded groups). Interviews were conducted either by telephone or by email with non-governmental organizations, experts, and community activists working in the field (see Appendix III for list of contacts). 1.8 Internet Search of Web Sites Promoting Hate Propaganda The fourth research method used was to search for hate propaganda directed against the expanded groups on the internet. While some argue there is no relationship between cyber-hate and hate crime (Hamm, 1999:1), others disagree (Goldschmid, 2001; Mock, Ellbogen, 2000). A search was conducted of Web sites which might be considered to be promoting hate propaganda

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against the protected and unprotected groups on the basis of age, sex, mental or physical disability, and sexual orientation. There are a number of American Internet Web sites which provided links to sites of interest for this project. I researched sites built by the Anti-Defamation League, Southern Poverty Law Centre, and B’nai Brith (International), Public Eye and Canada’s Nizkor project web site along with the Canadian Jewish Congress, and B’nai Brith (Canada). Numerous other sites provided links (Franklin, 2001). (see Appendix V).11 1.9 The Issue of Hate Propaganda Since 1946, racist hate crimes have been taken seriously by the international community, federal statutes and human rights codes, and Canadian police in general. The international community has recognized the need to combat racist human rights violations and hate propaganda under the law. As a nation, Canada has ratified the 1948 Universal Declaration of Human Rights, the 1976 International Covenant on Civil and Political Rights, and the 1970 International Convention on the Elimination of All forms of Racial Discrimination. The Universal Declaration of Human Rights requires anti-racism legislation including legislation protection against racist attacks on identifiable groups. The International Covenant on Civil and Political Rights addresses the prohibition of hate propaganda specifically in article 20(2). Article 4 of the International Convention requires the criminalization of hate propaganda and other activities that promote racism. Federal legal remedies against hate activities are stipulated in the Charter of Rights and Freedoms, the Criminal Code, the Canadian Human Rights Act (s. 13(1)), and various provincial human rights codes. The fight against hate-motivated crime is supported by the solicitor general, attorney general, and police services by means of directives, the establishment of hate-crime unit intelligence services, and the launching of public education campaigns to identify, report and reduce hate crime. Nevertheless, there are difficulties in tracking and recording hate crimes -- a major stumbling block is determining their motivational basis. A related issue is the use of statistical data on hate crimes. While publication of hate crime statistics is seen as valuable for public awareness and education, there is a concern that publication may have the effect of “spurring some people to commit more violent acts in order to increase the numbers” or allowing those involved in hate crimes to “just feed on that statistical data” (Hannan, 1993). Despite these concerns Statistics Canada included questions on hate crime in the 1999 General Social Survey (Jahnevich, 2001). 1.10 Theorizing Hate Propaganda: Freedom of Speech Under the Liberal Consensus Model Debates about the necessity of providing protections against hate-mongering are informed by two contrasting interpretations of rights – libertarian and egalitarian (Hemmer, 1995: 307317). The extant research on hate propaganda in North America is informed by these two theoretical frameworks, and as such, influence the analysis of data.

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Within the liberal consensus model a tension exists between those who argue for the right to freedom of hate speech and expression and those who argue for the rights of groups to be protected from speech which promotes hatred. In every Canadian case thus far in which prosecution was brought under section 319(2) for the wilful promotion of hatred, the defence has argued that it violated the accused’s right to freedom of speech. While some argue that freedom of speech is the necessary condition of all other freedoms (Berger, 1981) others argue that there is no truly free marketplace of ideas when all individuals do not have equal access to forums of speech (Eid, 1994). Others suggest that freedom to propagate hate is not so much a freedom as it is a socially destructive ideology (Dias, 1987). Still others argue that hate speech restricts the hate speech of the target (Shefman, 1994; McKenna, 1994). Mock points out that hate speech in Canada often finds its way into rather sophisticated venues under the guise of freedom of speech (Mock, 1995). The problem under the liberal consensus model is to criminalize hate speech without limiting freedom of speech. In contrast to the liberal consensus model, conflict theorists argue that hate crime law does not develop out of a broad-based normative consensus over competing ideas and interests, but rather develops out of the competition of groups at the level of norms as well as at the level of individual interests, power and resources (Suriya, 1998:66). Often, critical race theorists, feminists, libertarians, African Americans, Jews, gays and lesbians struggle to define their place within the hate crime discourse and find themselves excluded from legislative protections (Matsuda, 1993). 1.10.1 Libertarian Views The libertarian view claims that freedom of speech has a position of priority over all other rights and freedoms, since the right to express dissenting and unpopular ideas is fundamental to democracy. Arguments against hate propaganda follow five interrelated arguments (Rosen, 2000). The first main tenet of the libertarian view is that libertarian rights, such as freedom of expression, are not divisible. Once they begin to be restricted, it is difficult to draw the line as to where such limitations on freedom stop. Second, the prosecution of hate propagandists enables them to use the courtroom as the medium to further disseminate their ideas. If they are convicted or found to have committed a prohibited discriminatory act, they may go on to make use of their martyrdom to further their cause. Third, once enacted, hate propaganda legislation may be abused and used against those to whom it was not originally intended to apply. Fourth, at the present time, the purveyors of hate propaganda are of only marginal importance, and have little impact on the body politic; hence no legislative measures or, at least, no strengthened laws are needed to deal with them. Fifth, and lastly, allowing purveyors of hate propaganda to distribute their material freely has a cathartic or safety valve effect. The problem of evaluating truth from falsehood (as noted in various cases in Canada), is knowing when to limit speech. For example, in Keegstra (1990:762) Dickson C.J. suggested that “the hateful views of James Keegstra could be denied constitutional protection because they were

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so “obviously” false. However, Richard Moon notes that the problem with the views of James Keegstra and others is that “they are not obviously false to some members of the community” (Moon, 2000:11). Ultimately, the issue is whether and when governing authorities should be given the power to suppress views they consider to be false. Not only is the question of the falseness of news at issue in Canada under our guarantees of rights and freedoms, the question is also is this news irrational and if so, what is then the serousness of the harm likely to be done to the community at large. The question remains whether the state in its reverence for truth and rational thought and the protection of individuals and communities, is capable of judging and evaluating the true degree of the impact of hate. Another related question is how to define what hate actually is, who might suffer from it, and whether legal challenges are the best approaches to take in creating a community standard of care. In the United States, the metaphor of “the marketplace of ideas” is more than often used to justify the free expression of ideas as promoted by J.S. Mill. The argument is that the truth will emerge from a free and open exchange of ideas. However, critics have suggested that what this really represents is the ability of certain groups to promote their views in the market with the suggestion that what is most valued is that which is most directly promoted to the public. In this case, “truth” is promoted in the marketplace without restriction so that the public may not come to question what is most self-evidently promoted through the capitalist marketplace of ideas. One argument promoting freedom of expression is the suggestion that if something is true, the selfevidence of its truth will be shown to be so through the competition in the market (Moon, 2000:13). If so, then “truth” is that which emerges from ‘the marketplace of ideas, the outcome of unrestricted discussion among members of the community” (Moon, 2001:13). In this respect, Moon suggests that under this approach the aim is not so much the attainment of “truth” but the achievement of public consensus through fair public debate. Moon sees this to be different from the conventional truth-based argument promoted by J.S. Mill, in which the “value of freedom of expression depends on its production of truth, independently or objectively determined” (Moon, 2000:13). Moon values the democratic deliberation approach over the marketplace of ideas metaphor for two reasons. First, we do not all enter the market-place as equals. The market place image of laissez-faire capitalism “discourages consideration of the appropriate conditions for achieving social consensus” (Moon, 2000:13). Neither does this approach consider issues of power and control in its examination of the distribution of wealth and communications. A recognition must be given to the fact that a greater voice is given to those with economic power. The market-place metaphor leads us to believe that all citizens have a free and equal opportunity to disperse their message and compete in the marketplace of ideas. However, it suggests that in terms of finding truth(s) we should allow the production of knowledge in the public sphere to operate like the market for goods: those who control the resources, control the production of knowledge, and therefore truth. A second difficulty with the metaphor is that it is problematic to suggest that the public exchange of ideas is comparable to the market-place exchange of goods

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and services (Moon, 2000:14). As Moon notes: Public discourse is not simply about the provision of information and ideas that enable individuals to advance their desires and preferences. Participation in public discourse is vital to the formation of preferences and choices. Human desires, preferences, and purposes are not presocial, formed independently of debate and discussion, but are instead given form in public discourse (Moon, 2000:14). 1.10.2 Egalitarian Views Egalitarians argue that curbs on hate speech are necessary to protect minority groups from the harmful effects of hate speech (Delgado, 2000; Matsuda, Lawrence, Delgado, Crenshaw, 1995; MacKinnon, Verrerling-Braggin, 1981). Egalitarians raise the question of whether there are “reasonable limits” on freedom of expression and suggest that “insofar as hate propaganda has no redeeming social value and is inherently harmful to both target groups and the social order, restrictions on freedom of expression explicitly designed to curb hate-mongering represent ‘reasonable limits’”(Kallen, 1984:4). As outlined by Rosen (2000) the six major arguments in favour of hate propaganda legislation are as follows: First, rights are never absolute – in Canada they are exercised under law – legal intervention is justified in some circumstances. Second, unlike the U.S. First Amendment libertarian position, the Canadian Charter of Rights and Freedoms is imbued with egalitarian rights, as set out in s. 15, which must be read in tandem with the libertarian rights of s. 2. Third, Canada is a multicultural society -- this multiculturalism is accepted as a basic constitutional norm and as such is set out in s. 27 of the Canadian Charter of Rights and Freedoms so that this constitutional norm must be read in tandem with the libertarian rights of s. 2 of the Charter. Fourth, numerous reports and legislative enactments indicate a consensus as to the legitimacy of using the law against hate propaganda. Fifth, many other Western liberal democracies have anti-hate propaganda legislation. Sixth, and finally, Canada must fulfil its international obligations by enacting hate propaganda legislation. The Convention on the Prevention and Punishment of the Crime of Genocide, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination, to all of which Canada is a signatory, oblige Canada to combat racism and the advocacy of genocide and racial superiority. As an American creation, the democratic right to freedom of expression is constitutionally protected. American cases such as Brown v. the Board of Education (1954), R.A.V. v. St. Paul (1992), Roe v. Wade, Collin v. Smith (1978), and Village of Skokie v. Nationalist Socialist Party (1977, 1978), Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board (1982), Coen v. Harrison County School Board (1981), Collin v. Chicago Park District (1972), Regents of the University v. Bakke (1993), Kunz v. New York (1951), Dred Scott v. Sanford, Chaplinsky v. New Hampshire (1942), Cohen v. California (1971), Erznoznnik v. City of Jacksonville (1975), exemplify the difficulties minority groups

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experience when attempting to obtain governmental protection from hate crime (Matsuda, 1993). Critical race theorists such as Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado (1999:761-775) and Kimberle Williams Crenshaw (1993) support egalitarian views that target assaultive speech. Their method of researching harm is to examine incidents, legal cases, and the impact of hate speech on communities. Their aim is to build theory through reflection on action (Matsuda, 1993:10). In the minority among civil libertarians who favour restrictions on hate speech, they are called politically correct “first amendment revisionists,” “left censors” and “thought police” because they support regulating racially abusive hate speech (Matsuda et al., 1993:2). First amendment revisionists typically come from victimized communities such as persons of colour, women, and lesbians, gays who are disproportionately among those who support the sanctioning of hate speech, and they note that the Jewish community is sharply divided on this issue (Matsuda et al, 1993:2). Beginning from the subjective, critical race theorists create new forms of scholarship by using personal histories, parables, chronicles, dreams, stories, poetry, fiction, and revisionist histories to convey their message (Matsuda, et al, 1993:5). In contrast to Libertarians who focus on language and expression within the market place of ideas, critical race theorists focus on the social construction of racism from a variety of perspectives. First, critical race theory recognizes that racism is endemic to American life, which leads them to ask how traditional interests and values serve as vessels of racial subordination. Second, critical race theory expresses skepticism toward dominant legal claims of neutrality, objectivity, color blindness, and meritocracy because these claims are central to an ideology of equal opportunity which presents race as an immutable characteristic devoid of social meaning. Third, critical race theory challenges ahistoricism and insists on a contextual and historical analysis of the law. Fourth, critical race theory insists on recognition of the experiential knowledge of people of colour and their communities of origin in analyzing law and society. Fifth, critical race theory is interdisciplinary and eclectic. It borrows from several traditions, including liberalism, law and society, feminism, Marxism, poststructuralism, critical legal theory, pragmatism, and nationalism. Sixth, critical race theory works toward the broader goal of ending all forms of oppression, and recognizes that racial oppression is experienced by many in tandem with oppression on grounds of gender, class, or sexual orientation (Matsuda, 1993;6). Richard Delgado’s article “Words That Wound: A Tort Action for Racial Insults, Epithets and Name Calling” (1982:89) was the first American article to explore the injuries inflicted by racist speech and the potential tensions between legal remedies for those injuries and the first amendment. Delgado’s method is to use cases to graphically portray the injury. He uses psychology, sociology, and political theory to explain the nature of the harm. He explores common law doctrine that moves toward providing a pragmatic remedy for those suffering from

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racial subordination. Charles Lawrence (1993) discusses the issue of regulating racist speech on campus by discussing the Ujamaa incident at Stanford University. A poster bearing the likeness of Bethoven was defaced and put on the door of an African-American students dorm door in response to his claim that Beethoven was of African descent. When other African Americans heard of this incident they responded that the injury was to the group rather than a private injury, which was the story supported by the university (Matsuda, 1993:8). The victims felt that the intent and impact of the message was to end discussion, not to continue it, and limiting his ability to reply by threatening him. Arguments for freedom of speech versus censorship are also evident in Brown v. Board of Education, which recognized the unconstitutionality of segregation, and led the U.S. Supreme Court to identify the defamatory symbolism of segregation as central to its unconstitutionality (Matsuda, et al, 1993:9). Law professor Mari Matsuda’s (1993:17) method is to focus on the victim’s story to determine when hate speech is antithetical to the underlying liberal democratic principles that inform both the first amendment and the equal protection clause. She uses antisubordination as her guiding principle in order to focus on the voices of the victims of hate speech with the aim of furthering their liberation. Matsuda’s work is influenced by the use of narrative and the authority of personal experience that characterizes strands of both feminist thought and critical race theory. In developing her analysis of hate speech and the first amendment, she spoke with students at universities throughout the country and worked with community groups involved in anti-racist struggle. She found a contradiction between first amendment absolutism and the goals of liberty and equality (Matsuda, 1993:9). Matsuda (1989:27) suggests that the standard of hate speech should have three identifying characteristics: · · ·

the message must be of racial inferiority; the message should be directed at an historically repressed group; and the message must be persecutorial, hateful and degrading.

Kimberle Crenshaw (1993:111) examines the intersectionality of race and gender subordination in the alarming incidence of violence against women of color. She asks about the role that speech, or the representation of women of colour in mass culture, plays in constructing the unique combinations of racism and patriarchy that limit and endanger the lives of women of color. She examines the obscenity prosecution of the Black rap group 2 Live Crew and concludes that the while the case was supported as a case about free speech, it shows us that there is more at stake than whether 2 Live Crew’s album As Nasty As They Wanna Be is protected by the first amendment.

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While critical race theorists are guided by liberationist pedagogy, their method is an ongoing engagement in political activism. Guided by the liberationist pedagogy of Paulo Freire (1982), they argue that liberationist teaching contains two dimensions: “Reflection and action, in such radical interaction that if one is sacrificed -- even in part -- the other immediately suffers” (Matsuda, 1993:11). In order to conduct research guided by this critical pedagogy they seek to inform their understanding and analysis by critical reflection on political action. While the civil libertarian community in the United States remains ambivalent about the critical stance taken by critical race theorists, the approach of critical race theorists is to position themselves as “purveyors of dialogue, debate, consciousness raising, and political struggle” (Matsuda, 2000:11). They find themselves within the battle over affirmative action, multiculturalism, the meaning of merit, and the inclusion of historically excluded person within institutions in which culturally ingrained unconscious racism is structured. They note that those who support the status quo have found in the first amendment a new means of challenging affirmative action and the inclusion of historically excluded groups. As a result, “[p]eople of color, women, gays, and lesbians who insist on the inclusion of their voices in academic discourse and who speak out against persons and practices that continue to inure and demean them are said to impose a ‘new orthodoxy’ upon the academy” (Matsuda, 1993:15). Alternatively, the egalitarian idea of freedom is a society where the right to degrade and humiliate another human being is no more acceptable than the right to do physical violence and to enslave, and economically exploit. 1.11 The Scope of Group Defamation Laws in Canada: History of Hate Propaganda Law Racism and hate propaganda have long been a part of the Canadian experience beginning with attitudes towards first nations persons in the colonial period and the resulting “campaign of de-humanization, de-tribalization and marginalization” (Mock, “Perspectives on Racism,” Nizkor Website) to the poor treatment of the Chinese in British Columbia at the turn of the century (Goldschmid, 2000:55). In the 1960s, the distribution of hate propaganda, mainly antiJewish and anti-black was widespread in Canada and especially in Ontario and Quebec (Rosen, 2000). As a result, the Cohen Committee put together the 1965 report which formed the basis of the 1970 amendments to the Criminal Code (318-320) adapted by the Parliament of Canada (Rosen, 2000). “Another wave of hate propaganda came in the mid 1970s and 80s. This wave brought successful prosecutions against Jim Keegstra, Donald Andrews and Robert Smith. A 1982 Gallup poll indicated that 31 percent of Canadians would support organizations that worked toward preserving Canada for whites only” (Jeffrey, 1998:3; Sanjeev, 1998:215). Cohen argues that “North America is undergoing a ‘third wave’ of hate propaganda the first having been the rise of anti-Jewish and anti-Black hate propaganda in the 1960s, and the second the expansion and prosecution of those efforts in the 1970s and 1980s” (Cohen, 2000:71;Rosen, 1996:1-4). “The Third wave is characterized by the dissemination cyberhate, the expansion of target groups, and the corresponding rise in hate crimes directed at women and members of minority groups” (2000:71). (See for example a listing of hate sites contained in a document called the “Hate Directory,” compiled by Raymond A. Franklin. The site is contained online at:

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www.bcpl.lib.md.us/~rfrankli/hatedir.htm.) Hate crime as currently defined in Canada was added to the Criminal Code in 1970 through Bill C-3, creating specific criminal offenses of “advocating genocide,” “public incitement of hatred,” and “wilful promotion of hatred.” These criminal offenses remain unchanged in the current Criminal Code (Canadian Human Rights Reporter, 1997). Additional provisions were added to the Criminal Code in 1995 through Bill C-4112. Unlike Bill C-3, Bill C41 did not create any new crime offenses. Bill C-41 prescribed that longer sentences be imposed by the courts if “bias, prejudice or hate” were elements of or motivating factors for a crime. Bill C-41 dealt with aggravating or mitigating circumstances relating to a crime or a criminal upon sentencing, if “bias, prejudice or hate” were found in the commission of crime These provisions remain unchanged in the current Criminal Code. In short, hate crime offense provisions which were introduced through these two bills constitute the current Criminal Code position. The problem of hate propaganda has been officially recognized in Canada since the 1970s (Suriya, 1998). Since 1953 the Canadian Jewish Congress has appeared before numerous government committees to stress the importance of outlawing hate mongering presented under the pretence of free speech. In response to the decision in Boucher v. The King (1949), [1950] 1 D.L.R. 657-694 (S.C.C), the Canadian Jewish Congress in March 1953 appeared before a Joint Committee of the Canadian House of Commons and Senate on the revision of the Criminal Code (Kayfets, 1970; Fenson, 1964-1965). Two private member’s bills against genocide and hate literature which were discussed in the House of Commons in February of 1964 were a direct result of the CJC’s public campaign (Kayfets, 1970; Tarnapolsky, 1967). In 1966, the Report of the Special Committee on Hate Propaganda in Canada or the “Cohen Report,” recommended the creation of “hate” crime offences in the Criminal Code (Cohen, 1966).13 The Cohen Committee Report stated that: Canadians who are members of any identifiable group in Canada are entitled to carry on their lives as Canadians without being victimized by the deliberate, vicious promotion of hatred against them. In a democratic society, freedom of speech does not mean the right to vilify. The number of organizations involved and the numbers of persons hurt is no test of the issue: the arithmetic of a free society will not be satisfied with over-simplified statistics demonstrating that few are casting stones and not many are receiving hurts. What matters is that incipient malevolence and violence, all of which are inherent in “hate” activity, deserves national attention. However small the actors may be in number, the individuals and groups promoting hate in Canada constitute ‘a clear and present danger’ to the functioning of a democratic society. For in times of social stress such “hate” could mushroom into a real and monstrous threat to a way of life (Cohen, 1966:24).

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In 1970, Canada ratified the International Convention on the Elimination of All Forms of Racial Discrimination. This international convention called for state parties to make the dissemination of ideas based on racial superiority and hatred an offense punishable by law (Roach, 1999:134-135). That same year an offence prohibiting the wilful promotion of hatred was added to the Criminal Code (Roach, 1999:135). This prohibition targeted the content of speech rather than physical violence motivated by hatred. Bill S-21 was introduced in the House of Commons as Bill C-3, and it received Royal Assent on June 11, 1970. 1.12 Identifiable Groups In R. v. Keegstra in 1990, the Supreme Court of Canada in upholding the constitutional validity of the hate crime provision under section 319(2) of the Criminal Code stated that: [a] person’s sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded to the groups to which he or she belongs. The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual’s sense of self-worth and acceptance.14 This case law position has affirmed the entry of identifiable groups as a part of Canadian criminal law, upholding the fact that a single act directed at one individual victimizes more than just that individual. However, as Suriya notes, what is uncertain is whether this case law position has expanded the definition to cover a wider identifiable group (Suriya, 1998:41). Unique to the criminalization of hate is the protection of identifiable groups. Under section 318(4) ‘identifiable group’ means any section of the public distinguished by colour, race, religion, or ethnic group. According to Suriya (1989) the rationale behind the term ‘identifiable groups’ is that a single act directed at one individual victimizes more than just that individual (Cohen, 1966). A hate victim is selected for victimization on the basis of the perceived group in which the individual is a member. This form of selection, according to Marvin Kurz, makes hate victimization non-random (Giese, 1995). Others have agreed with this perception. Cynthia Petersen (1991) and Ellen Faulkner (1997) argue that a single hate act victimizes an entire community of people, compounding on their pre-existing oppression. Kevin Berrill (1992) argues that violence directed at groups is an “act of terrorism” in which the terrorist attack is intended to violate and isolate not only the victim but an entire group. Suriya argues therefore, that the hate victim is a deindividuated victim with a group identity” (Suriya, 1989:37). For Suriya, the “deindividuated non-random victim” best describes the hate victim within the Canadian social context. The creation of criminal laws against “advocating genocide”, “public incitement of hatred”, and “wilful promotion of hatred” was a recognition of the deindividuated non-random nature of hate victimization.

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In Canada, the protection of some groups was initially controversial. For example, the Cohen Committee (1966) recommended that language and national origin be included within the definition of identifiable group. The drafters of the legislation felt that given the bilingual and bicultural nature of the country at that time, this inclusion could lead to difficulties (Hague, 1970). Accordingly, Bill C-3 excluded both language and national origin from identifiable group. Opponents of the legislation portrayed the “identifiable group” as a special law provision protecting particular groups of the society (Suriya, 1989:37). For example, while sections 718.1 and 718.2 of Bill C-41 simply codified the existing sentencing practices that had been developed in earlier cases, from the very outset of the introduction of the Bill was controversial, creating a division within the governing Liberal caucus (Taber, 1994). While the Bill covered race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor, some opponents focused on the inclusion of sexual orientation, and attempted to portray the legislation as the “gay rights bill” (Robertson, 1994;Greenspon, 1994; Durkan, 1994). In fact, opponents labelled non-heterosexuality as “unCanadian”, “unnatural”, “wrong”, “immoral”, and “paedophilia” (Suriya, 1998:48, Foeseth, 1994; Bryden, 1995; Alberts, 1994). All the Reform Party and some Liberal Party members openly voted against the Liberal government bill (Suriya, 1998:49; Bryden, 1995:A3). Private member’s Bills such as Bill C-204 on December 18, 1968 to add “age,” and Bill C-326 on June 27, 1990 and Bill C-247 on June 19, 1991 to add “sex” and “sexual orientation” to the identifiable group provision of section 318(4) were introduced. However, for various reasons, these bills failed after first reading in the House of Commons (Rosen, 1996; Ross, 1994; Hamm, 1994). Meanwhile, since the enactment of the Canadian Charter of Rights and Freedoms as a part of the Canadian Constitution effective in 1982 (Canada, 1985), the expansion of the definition of identifiable group has become commonplace. Section 1(1) of the Charter states that: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability1. In addition, the Charter section 15(2) states that: Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin,

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colour, religion, sex, age or mental or physical disability. The meaning of equality in this subsection is limited by the Charter section 1 to the ‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ Sexual Orientation has been “read in” to this definition. In 1985, The Special Committee on Pornography and Prostitution (otherwise known as the Fraser Committee) attempted to change the definition of identifiable group under section 318(4). This Special Committee recommended that the definition of identifiable group be expanded to include the categories of sex, age, and mental or physical disability (Canada, 1985). In addition, the Law Reform Commission of Canada in 1986 regarded the open-ended provision of section 15(1) of the Charter to be the most suitable for an expanded definition of identifiable group, covering “sexual orientation” and other “ad hoc” groups (Law Reform Commission of Canada, 1986). However, the Bill C-3 definition of identifiable group remains unchanged in the Criminal Code. While the Criminal Code identifies protected groups by colour, race, religion, or ethnic origin a broader definition is used elsewhere (Goldschmid, 2000: 40-41): a. Criminal Code: The only groups protected by the criminal law are those that are identifiable by colour, race, religion or ethnic origin. b. Canadian Human Rights Act The Canadian Human Rights Act protects the same groups protected by the criminal law, but additionally protects groups identifiable by national origin, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. Discrimination on the basis of pregnancy or childbirth is deemed to be included in discrimination based on sex. c. Provincial Legislation The lists of protected identifiable groups in provincial legislation are all similar to the list included in the Canadian Human Rights Act, but there are differences. For example, Alberta’s list includes groups identifiable by “source income” but does not include groups identifiable by sexual orientation. Saskatchewan’s list includes groups identifiable by “receipt of public assistance.” d. Media Awareness Network The Media Awareness Network cites Raymond Franklin, the author of the Hate Directory, who includes “race, religion, ethnicity, gender, or sexual orientation.” They also use the Hate Watch definition which includes “race, religion, national origin, sexual orientation, gender or

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disability.” e. Hate and Bias Activity Roundtable The Hate and Bias Activity Roundtable (through a subcommittee, the New Media Working Group) uses, “an identifiable group or members of the group on the basis of race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor” (Secretary of State (Multiculturalism) (Status of Women) June 22-23, 2000). f. The Charter The Charter in Section 15 prohibits discrimination and then goes on to say, “in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.” g. Unlisted Groups Note that the Charter and the New Media Working Group definition leave open other classifications that may be found to fall under the same category. The New Media Group takes this approach to prevent discrimination and to protect the groups who have historically been at risk of discrimination based upon no rational, logical basis, but simply on the identifiable characteristics of the group. Goldschmid argues that “a group not specifically listed should be able to present evidence as to why they should be included as a similarly situated group” (Goldschmid, 2000:42). h. Canadian Broadcast Act (1991) Under the Broadcasting Act, Regulation 3 prohibits in part, broadcasting any abusive comment that, when taken in context, tends or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The extended list of prohibited grounds derives from section 15(1) of the Canadian Charter of Rights and Freedoms. Sexual Orientation is ‘read in’ as an analogous ground. In 1994, the CRTC television violence code came into effect which includes “sexual orientation” in its list of protected grounds. “Broadcasters shall not telecast programming which sanctions, promotes, or glamorizes violence based on race, national or ethnic origin, colour, religion, gender, sexual orientation, age or mental or physical disability” (CLGRO, January 1994:2). 1.13 Effectiveness of the Law Since Bill C-3 provisions became a part of the Canadian Criminal Code almost three decades ago, there have been only three cases with successful convictions out of a total of five prosecutions (Anand, 1997:224; Suriya, 1998:51). Section 318 on Advocating Genocide has been used once. Suriya notes that section 318 is seldom used because there have been no events

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compatible with genocide or advocating genocide in recent Canadian history. While the incitement of hatred can be argued to have occurred, the definition of section 319(1) on the public incitement of hatred as it stands is unusable in many events, requiring significant modifications to make section 319(1) workable (Suriya, 1998:52). The attempt to convict William James Harcus, Theron Skryba and Joseph Edward Lockhart under section 318 for their Manitoba Knights of the Ku Klux Klan activities was unsuccessful (Kinsella, 1994:32-48; Rosen, 1996:16; Suriya, 1998:51). Section 319(1), on public incitement of hatred, has never been used. Section 319(2) on wilful promotion of hatred has been used four times. Section 319(2) on the wilful promotion of hatred is seen as the most appropriate offence in combatting hate (Suriya, 1998:52). As a result, in the Malcolm Ross (1996) case, Canada’s supreme court concluded that the expression of hate silences the view of those in the target group and thereby hinders the free exchange of ideas feeding our search for political truth.” A review of the case law reveals that R. v. Buzzanga and Durocher (1979) was the first case unsuccessfully prosecuted under section 319(2) on the wilful promotion of hatred. R. v. Keegstra (1984) was the first case in which a conviction was obtained under a Bill C-3 provision. The second case where a conviction was obtained under section 319(2) on the wilful promotion of hatred was R. v. Andrews (1988;1990). The third case resulting in a conviction was R. v. Safadi (1993;1994). 1.13.1 R. v. Buzzanga and Durocher The first case to be unsuccessfully prosecuted under section 319(2) on wilful promotion of hatred centres around the issue of promoting hatred against the French Canadian culture and their language. In R v. Durocher (1979) Robert Buzzanga and Wilfred Durocher, two FrancoOntarians, were accused of having wilfully promoted hatred against the French Canadians in Essex County, Ontario, by distributing anti-French-Canadian handbills in January 1977. The handbills were entitled “Wake Up Canadians Your Future Is At Stake!”, and the message contained statements such as “you are subsidizing separatism whether in Quebec or Essex County,” who will rid us of this subversive group if not ourselves?”, and “the British solved this problem once before with the Acadians, what are we waiting for...?”15 The intention of the handbills was to provoke reaction among French Canadians to escalate support for a French School to be built in the region. During the initial trial in Windsor, Buzzanga and Durocher were found guilty as charged. However, on appeal, the Ontario Court of Appeal held that the intention of Buzzanga and Durocher to provoke a reaction among French Canadians did not correspond to the intention to promote hatred required by the word “wilfully”. The court clarified that the meaning of “wilfully” was not restricted to the intention to promote hate, but it encompassed the means as well as the final objective where the accused persons foresaw that it was certain or substantially certain to result from an act one committed in order to achieve some other purpose. However, the

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meaning of “wilfully” excluded recklessnes.16 Another issue which may have impacted on the outcome of the case was that the appellants had completed the act as a hoax. They themselves were Franco-Ontarians who wished to “stir up” public awareness. The outcome was that the Ontario Court of Appeal found Buzzanga and Durocher not guilty. 1.13.2 R. v. Keegstra James Keegstra (1984), an Alberta teacher, was convicted under Section 319(2). Keegstra was a teacher in Eckville High School, Alberta, from 1968 until his dismissal in 1982 (Elliot, 1985; Burcuson & Wertheimer, 1985). He was also the former mayor of Eckville and an executive member of the Social Credit Party. His teachings: attributed various evil qualities to Jews. He thus described Jews to his pupils as “trecherous”, “subversive,” “sadistic,” “money-loving,” “power-hungry,” and “child killers.” He taught his class 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 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 (R. v. Keegstra, at 12). Keegstra was accused of promoting hatred against Jews by alleging that the Nazi holocaust was a fabrication concocted by a sinister conspiracy to destroy Christian civilization. The Supreme Court of Canada ruled that although Section 319(2) infringes on the guarantees of freedom of expression in the Charter of Rights and Freedoms section 2(b), it is nonetheless a justifiable and reasonable limit on that freedom, given the harm to intergroup relations caused by such hate speech. 1.13.3 Concept of Group Harm under Keegstra: In R. v. Keegstra (1990) 61 C.C.C. (3d) 1, the Supreme Court of Canada provided much needed guidance for the determination of what constitutes the wilful promotion of hatred under s. 319(2) of the Criminal Code (Hess, 1996). Dickson, C.J.C., writing for the majority, rejected Keegstra’s constitutional challenge to s. 319(2). He held that the section did violate the guarantee of freedom of expression in s. 2(b) of the Charter, but concluded that s. 319(2) constituted a reasonable limit on that freedom (Hess, 1996:1). Hess further elaborates: “Of significance are Chief Justice Dickson’s words regarding the “pressing and substantial” nature of the objective of s. 319(2). At this stage of the analysis he focuses on the harm caused by hateful expression. First, harm is done to the group specifically targeted by expression. That type of injury occurs as follows:

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...a response of humiliation and degradation from an individual targeted by hate propaganda is to be expected. A person’s sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs: see Isaiah Berlin, “Two Concepts of Liberty,” in “Four Essays on Liberty” (1969) 118 at p. 155. The derision, hostility, and abuse encouraged by hate propaganda therefore have severely negative impact on the individual’s sense of self-worth and acceptance. This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity through, among other things, respect for the many racial, religious and cultural groups in our society. (Keegstra at 3637) (Hess, 1996:1). 1.13.4 Concept of Serious Discord under Keegstra: Second, harm could be done on a broader, societal level, by the creation of “serious discord,” as others may be attracted to the hate monger’s cause. Even where such ideas of inferiority appear to be rejected, evidence suggests that they can linger “in a recipient’s mind as an idea that holds some truth.” (Keegstra at 37). This creates a danger which is justifiably addressed by the criminalization of such speech. In Chief Justice Dickson’s view: The threat to the self-dignity of target group members is thus matched by the possibility that prejudiced messages will gain some credence, with the attendant result of discrimination, and perhaps even violence, against minority groups in Canadian society (Keegstra at 37). Confirming the serious consequences of hate propaganda, the Ontario Court of Appeal, in R. v. Andrews and Smith (1989) viewed the danger of hate literature to society to be “every bit as great a danger as impaired driving.” In fact, such speech is considered to be antithetical to fundamental principles of Canadian society, such as: ...the quest for truth, the promotion of individual self-development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged.(Canada v. Taylor [1990] 3 S.C.R. 892). This is how these principles are jeopardized: The message of the expressive activity covered by s. 319(2) is that members of

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identifiable groups are not to be given equal standing in society, and are not human beings equally deserving of concern, respect and consideration. (Keegstra at 44). In that sense, the objective of s. 319(2) is also bolstered by s. 15 of the Charter, which expresses “society’s dedication to promoting equality” (at 43) (Hess, 2). 1.13.5 R. v. Andrews The second case where a conviction was obtained under section 319.(2) was R. v. Andrews (1988). Donald Andrews and Robert Smith belonged to the Nationalist Party of Canada, a “white nationalist political organization” which advanced white supremacy. Andrews was the party leader and Smith was the party secretary. Both members were responsible for publishing and distributing the bi-monthly Nationalist Reporter which was the primary subject matter of the prosecution. It contained statements such as: “race-mixed planet are only working against God’s and nature’s original will,” “Toronto’s violent crime rate is increasing -- almost directly in proportion to the increase in immigrants from the Caribbean, India, Pakistan and blacks from the U.S.”, “almost all illegal aliens and refugees” coming to Canada are “clourds” who do not believe in democracy and harbour a hatred for white people, “stop the International Jewish communist conspiracy”, the “Holocaust Hoax” challenge can land you in jail, and “Zionist Economic Power [is] Growing”. The acts specific in the offence occurred between December 1980 and March 1984. In January 1985, Andrews and Smith were charged under section 319(2) of the Criminal Code with the offence of the wilfull promotion of hatred. In December 1985, both were found guilty of the wilful promotion of hatred (Anand, 1997; Rosen, 1966). The trial judge sentenced Andrews to one year and Smith to seven months imprisonment. On appeal, in July of 1988, the Ontario Court of Appeal held that the Criminal Code provisions prohibiting wilfull promotion of hatred did not violate the right to freedom of expression as specified in section 2(b) of the Charter. However, the Ontario Court of Appeal reduced the sentences respectively to three months and one month imprisonment. 1.13.6 Validity of s.319.2 In Light of s. 1 of the Charter in R. v. Andrews Andrews and Smith appealed the decision of the Ontario Court of Appeal on the basis that section 319(2) violated their rights to freedom of expression as guaranteed by the Charter. In December of 1990, upholding the decision of the Ontario Court of Appeal, the Supreme Court of Canada held that “the rights and freedoms” set out in section 1 of the Charter are subject to “reasonable limits prescribed by law as can be democratically justified in a free and democratic society,” and thereby the prohibition against wilful promotion of hatred under section 319(2) was valid. The appeal was dismissed.

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1.13.7 R. v. Safadi The third case resulting in a conviction under section 319(2) was R. v. Safadi (1994:64). In this case, Michel Sleiman Safadi sent a total of 45 letters to religious groups, various police and government agencies and various people of Lebanese descent in the province of Prince Edward Island. Safadi made the letters appear as if they originated from a Jewish source. The letters attacked Christianity in general, Jesus Christ, Mary and the Holy Spirit in particular, as well as government institutions using “highly provocative and disgusting language.” In July of 1993, the P.E.I. Supreme Court Trial Division held that Safadi promoted hatred against Jews and convicted him of wilfully promoting hatred (1994:67). In September of 1994, the Appeal Division affirmed the conviction of the Trial Division (1994:261). 1.13.8 S.318, Inciting Genocide To date, the only case to have been unsuccessfully instituted under section 318 was R. v. Harcus et al. (1992), which involved alleged members of the Manitoba Knights of the Ku Klux Klan who were also charged with related offences after the group was infiltrated by undercover Winnipeg police officers. Charges were stayed in this case after the disclosure that one of the investigating officers had perjured herself during her testimony in court. For a criminal proceeding to be instituted under this section and section 319, the consent of the attorney general is required. According to Suriya (1998) there is no other case which has resulted in a conviction under the wilful promotion of hatred provision. This brings the total number of convictions under all three hate crime provisions to three. In other words, by section 319(2) standards, Jim Keegstra, Donald Andrews, Robert Smith and Michel Sleiman Safadi are the only four individuals who have advanced hatred in Canada for nearly three decades. For Suriya and others, this “record provides strong evidence of the ineffectiveness of section 319(2)” (Suriya, 1998:60; Bercuson, Wertheimer, 1985; Raymaker, Kilgour: 1992; Ross, 1994; Hamm, 1994; McNamara, 1994). The limitation of the legal process of redress outlined above raises the question of whether adding new protected categories to the existing Criminal Code provision will have any impact on protecting women, the elderly and youth, the disabled, and gays and lesbians from the wilful promotion of hatred, incitement to hatred, and genocide. 1.13.9 Reasons for Lack of Prosecutions and Convictions under Bill C-3 Provisions The reasons for only a handful of convictions under section 319(2) may be deeper than just technical inadequacies of the existing offence, and may be traced to the existence of deepseated and fundamental conflicts among groups within Canadian society at the level of the law enforcement process itself (Suriya, 1998). Factors such as allegations of police racism and discrimination (Quebec, Commission des droits de la personne du Quebec, 1988; Nova Scotia

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1989; Ontario, 1989; Manitoba, 1991; Quebec, 1992; Lewis, 1992; Andrews, 1992; Simms, 1993; Griffin, 1994; Brazao, 1994), the failure of Attorneys General in deciding to prosecute (Ross, 1994), and the lack of strong judicial support for hate crime provisions, have been cited as reasons for the lack of successful convictions under section 319(2) (Elman, 1994). In contrast to Bill C-3 provisions, Bill C-41 provisions are relatively easy to enforce. Under Bill C-41, the provisions prescribe that longer sentences be imposed by the judges, if bias, prejudice or hate were elements of or motivating factors for a crime. However, until a crime is proven beyond a reasonable doubt, bias, prejudice or hate need not be used as elements in proving the offence. In September 1996, Parliament amended the sentencing provisions of the Criminal Code to make it clear that hate motivation is an aggravating circumstance in other criminal acts (section 718.2). It is probably too early to determine the full impact of this change, but recent court decisions have nonetheless relied on this provision in imposing more severe sentences. For example, in The Queen v. Miloszewski Judge Stewart said: I have heard evidence of truly hateful and sickening comments made by all of the accused as they disparaged ethnic minorities, homosexuals and members of the Jewish community. Clearly these views were fuelled by hate, fear and ignorance. These are views which are antithetical to the principles upon which this country is based... Nirmal Sigh Gill is dead simply because he was Indo-Canadian.... I am not so naive as to believe that any sentence I will pronounce will eliminate racism in our society. What can be achieved by what I am doing today is to send a loud, clear and unequivocal message not only to these five accused, but to others who share their views, that if they commit acts of violence against persons or property out of hatred they will be condemned and punished severely. Another case that made use of section 718.2 was Regina v. Solace, in which the judge also made references to hate as an aggravating factor and used strong language in his judgement to reinforce the vision of this section of the Criminal Code. In short, the new section is not simply an option to which judges can turn; it gives direction to the courts. Bill C-79, which came into force on December 1, 1999, is also intended to combat hate and bias activities. The law now allows courts to hear oral victim impact statements, rather than only written ones. This gives victims of hate crimes the opportunity to convey to the court more fully the impact of acts committed against them, something that is not as easy to achieve in a written statement. These examples show some of the ways legislation can be used to achieve certain ends. Some participants believe it is important to assess the legislation in place to determine whether it is effective and whether it should be changed or new legislation should be introduced. Such assessments should take a broad approach, looking beyond criminal and statute law to consider

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the full range of mechanisms available to governments, including regulation, regulatory agencies, policy directives and moral suasion and leadership. Is section 718.2 really sending a strong message that hate crimes will not be tolerated? As the Miloszewski case suggests, applying section 718.2 is only one aspect of sentencing. In that case, the defendants were sentenced for manslaughter, not murder. Although they were punished severely for manslaughter, was the sentence a sufficient deterrent? Should we focus on punishment in assessing whether the legislation is effective? Does the manslaughter conviction in the Miloszewski case indicate problems in the administration of justice despite the introduction of section 718.2? These are unanswered questions. 1.13.10 Discretionary Past Practices Suriya extensively documents that even before Bill C-41 provisions became a part of the Criminal Code, enhanced sentencing was implemented at the discretion of judges in the cases of R. v. Ingram and Grimsdale, R. v. Lelas, R. v. Simms, R. v. Curtis Peters and R. v. Atkinson, Ing, and Roberts17 In R. v. Ingram and Grimsdale, (1977), the court appears to have developed an alternative method as a response to hate (Suriya, 1998:42). Shamshudin Kanji, the victim, a native of Tanzia, was new to Toronto. One day, when he was standing on the subway platform for the next train, Alexander Ingram and Thomas Grimsdale launched an unprovoked attack, pushing him onto the subway tracks. Kanji severely fractured both his legs and suffered severe damage to his knees. He was hospitalized for several months. Ingram and Grimsdale were convicted of assault causing bodily harm and sentenced to 16 and 21 months respectively. The Crown appealed the sentences, and the prison terms were increased to 30 and 24 months respectively. On appeal, the Ontario Court of Appeal clearly stated that the “sentence imposed must be one which expresses the public abhorrence for such conduct and their refusal to countenance it” (R. v. Ingram and Grimsdale, 1977:379). This decision directs that racial hatred is an aggravating factor to be considered in determining the appropriate sentence, recognizing the importance of respecting the multicultural and pluralistic make up of the Canadian social fabric. Such a position on sentencing was further accepted in R. v. Lelas, R. v. Simms, and R. v. Curtis Peters. Moreover, in R. v. Atkinson, Ing and Roberts, (1979) three men were charged with assault. The aggravating factor in the motive for assault was the intent to engage in a gang assault for the purposes of beating up gay men. Serious injuries were received by the victims and the three men were given a sentence of eight months imprisonment. The probation was varied to imprisonment for two years less one day plus probation on appeal. Suriya (1998) argues that the judge in this case enhanced the sentence because the accused had targetted gays. Despite these few examples of discretionary enhanced sentencing many more cases of bashings and murders have not received such attention, suggesting that discretionary practices may not always be effective in sanctioning hate propaganda and hate crime (Janoff, 1999).

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1.14 Reforms to the Canadian Hate Propaganda Provisions Debates on changing the Criminal Code hate propaganda provisions centre around the issues of technical reforms, the requirement of “wilfully,” the Attorney General’s consent, and freedom of speech (Suriya, 1998:60-76). 1.14.1 Technical Reforms: Some argue that hate crime provisions should be made stronger and more enforceable. Under the liberal consensus model hate crime provisions are a symbolic affirmation of values which designate hate crime conduct to be socially unacceptable behaviour. Hate crime provisions affirm that despite the fact that there are some conflicts between different individuals or groups, most individuals and groups within Canadian society share a common commitment against hatred. Within this model, the view that hate crime offenders are a deviant minority is supported. The majority, who approve of hate crime provisions, agree that the solution is not to question the purpose of hate crime provisions, but rather to make them more enforceable in practice. Therefore, in light of the strong evidence of ineffectiveness of section 319(2), the solution suggested is not to question the purpose of hate crime provisions, but rather to make them more enforceable in practice (Suriya, 1998:61). 1.14.2 Requirement of Wilfully Some question the usefulness of ‘wilfull intent.’ Proving wilfull intent is often difficult when the standard of proof is so high. The definition of “wilfully” as clarified in R. v. Buzzanga and Durocher has been seen as a hurdle in obtaining a conviction under section 319(2) on the wilful promotion of hatred. The Ontario Court of Appeal held that the intention of Buzzanga and Durocher to provoke a reaction among French Canadians did not correspond to the intention to promote hatred required by the word “wilfully.” The court clarified that the meaning of “wilfully” was not restricted to the intention to promote hate, but it encompassed the means as well as the final objective where the accused persons foresaw that it was certain or substantially certain to result from an act one committed in order to achieve some other purpose. However, the meaning of “wilfully” excluded recklessness. As a result of this case, the Special Committee on Visible Minorities in Canadian Society (Canada, House of Commons, 1984) recommended the removal of “wilfully” as a requirement from section 319(2). However, the Special Committee on Racial and Religious Hatred of the Canadian Bar Association (Canadian Bar Association Special Committee on Racial and Religious Hatred, 1984) opposed the abolition of the requirement of “wilfully” from the provision. A year later, dissenting from the position of the CBA Committee recommendation, the Special Committee on Pornography and Prostitution recommended the removal of

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“wilfully”(Canada, 1985). To date, only the most extreme cases have been caught by the ‘wilful promotion’ test. As was seen in R. v. Keegstra, “The hate monger must intend or foresee ‘as substantially certain a direct and active stimulation of hatred against an identifiable group’ (Keegstra, 1990:777)” (Moon, 2000:133). In R. v. Keegstra, “in the majority’s view the state is justified in restricting the expression of the extreme racist views of hate mongers such as Keegstra because such views may lead (cause) others to hate the members of the targeted group and to act towards them in a violent or discriminatory way or because these views may be internalized by group members damaging their self-esteem” (Moon, 2000:132-133). However, the standard of proof remains so high that only cases in which repeated incidents of hatred such as those promoted by Mr. Keegstra may pass the ‘wilful promotion’ test. We must therefore ask whether women, youth, the elderly, the mentally or physically disabled, or gays or lesbians could use this test to measure the “wilful promotion” of hatred toward their group. Despite the recommendation in favour of change, to date, the requirement of wilful intent remains unchanged. 1.14.3 Attorney General’s Consent: Obtaining the consent of the Attorney’s General is also considered to be a barrier to the enforcement of section 319(2). Sanjeev Anand (1997) points out that the Attorney General of British Columbia would not give consent to proceed under section 319(2) against Alexander McQuirter (one of the Ku Klux Klan leaders) who made racist statements on British Columbia television and radio (Anand, 1997:220-222). In a second example, even though Ernst Zundel and Malcolm Ross advanced hatred against Jews, as a result of the failure to obtain the consent of the Attorney General, neither Zundel nor Ross were ever prosecuted under section 319(2). Zundel was prosecuted and found guilty under section 181 of the Criminal Code (false news) for “wilfully publishing a statement that he knew to be false” (R. v. Zundel, 1990). Instead, the actions of Ross in New Brunswick were found to have violated section 5(1) of the New Brunswick Human Rights Act (Human Rights Act, 1990). As a result, the argument has been made that the effectiveness of section 319(2) can be improved through removing the need for the Attorney General’s consent as specified on section 319(6) (Canada, 1985). In 1984, the Special Committee on Visible Minorities in Canadian Society recommended the removal of the consent of the Attorney General to prosecute under section 319(2) on wilful promotion of hatred (Canada, 1984). However, the Special Committee on Racial and Religious Hatred of the Canadian Bar Association (CBA) recommended that the need to obtain the consent of the Attorney General not be removed on the basis that it serves to prevent frivolous prosecutions (CBA, 1984). A year later, dissenting from the position of the CBA Committee recommendation, the Special Committee on Pornography and Prostitution recommended the removal of the Attorney General’s consent (Canada, 1985). Despite these recommendations, the requirement of the consent of the Attorney General under section 319(2) has remained

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unchanged. 1.15 Changes Since September 11th: Stronger Laws Against Hate Crimes and Propaganda “Following the attack on September 11, Canadians have called for a renewed commitment to Canadian values of respect, equality, diversity and fairness and a strong condemnation of hate motivated violence that has occurred in Canada and elsewhere against innocent people. This is a campaign against terrorists and not against any one community, group or faith. The Government of Canada is proposing changes to legislation that address the root causes of hatred, reaffirm Canadian values and ensure that Canada’s renowned respect for justice and diversity is reinforced” (Department of Justice, Backgrounder, 2001). As outlined under Bill C-36 (Anti-Terrorism Act) measures would include: ·

Amendments to the Criminal Code that would allow the courts to order the deletion of publicly available hate propaganda from computer systems such as an Internet site. Individuals who posted the material would be given the opportunity to convince the court that the material is not hate propaganda. The provision would apply to hate propaganda that is located on Canadian computer systems, regardless of where the owner of the material is located or whether he or she can be identified.

·

Criminal Code amendments that would create a new offence of mischief motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin, committed against a place of religious worship or associated religious property. This offence would be subject to a maximum penalty of ten years when prosecuted on indictment, or to a maximum penalty of eighteen months on summary conviction.

·

Amending the Canadian Human Rights Act to clarify that the prohibition against spreading repeated hate messages by telephonic communications includes all telecommunications technologies.

As these amendments to the Criminal Code were proposed and passed by the House of Commons expanded groups responded by noting the lack of proposed change to the unprotected groups. Following the gang murder of a gay man in Vancouver in the Fall of 2001 MP Svend Robinson introduced a Private Member’s Bill that would include sexual orientation among the grounds protected by Canada’s hate propaganda provisions. The bill calls on the federal government to abolish the ‘homosexual panic’ defence of provocation, and extend hate propaganda provisions to include sexual orientation. The bill also supports active liaison between police units across the country and sexual minority communities, including phone lines to report hate crimes. Countering homophobic attitudes through educational curricula is also essential (EGALE, 2001).

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1.16 Summary It would seem possible in a society where hate views are widely and strongly held on a more general level, to produce hate crime law condemning hate. However, Suriya (1998) notes there is no strong consensus either in the Canadian Parliament or in the society at large pushing for the implementation of the full Cohen Committee recommendations (Cohen, 1966). In Canada the events which led to the enactment of hate crime laws were initiated and steered by the communities most affected by hatred (Suriya, 1998:67). Despite that Bill C-3 provisions became law, there may indeed be no broad-based consensus about hatred in Canadian society. Lacking this broad-based normative consensus, the question remains whether it is realistic to expect the enforcement of section 319(2) as a broad based normative consensus which it never was. According to Jeffrey Ross, having failed to prevent Bill C-3 from being passed, a series of events took place in the interim to lessen the likelihood of using Bill C-3 provisions through enacting alternative sanctions against those who engage in the same type of activity for which the Bill C-3 provisions were designed. Ross argues that the enactment of section 13 of the Canadian Human Rights Act in 1977 is one such example (Ross, 1994:155). The reasons for only a handful of convictions under section 319(2) may be deeper than just technical inadequacies of the existing offence. The low convictions may be traced to the “existence of deep-seated and fundamental conflicts among groups within Canadian society at the level of the law enforcement process itself” (Suriya, 67). More likely, is the non-enforcement of section 319(2) as normative consensus (Bercuson, Wertheimer, 1985;McNamara, 1994; Ross, 1994; Hamm, 1994). Thus, given the existence of allegations against police racism and discrimination, police homophobia, and police sexism, it can be argued that part of the blame lies on the law-enforcement personnel for not catching hatemongers (Faulkner, 1997; Rigakos & Bonnycastle, 1998; Quebec, 1998; Nova Scotia, Royal Commission on the Donald Marshal, Jr., Prosecution, 1989; Ontario, 1989; Manitoba, 1991; Quebec, 1992; Lewis, 1992; Andrews, 1992; Simms, 1993; Griffin, 1994; Brazao, 1994; Bruner, 1991). Other commentators have pointed to the role of the Attorney’s General in deciding whether to prosecute, and the apparent lack of strong judicial support for the hate crime provisions, as reasons for the lack of successful convictions under section 319(2) (Ross, 1994; Elman, 1994). Ross (1994) argues that while hate crimes take place everyday in Canada, charges are seldom laid. We must therefore ask the question of whether society at large is any more enthusiastic than the law-enforcement personnel, the Attorneys General or the judges in criminalizing hate. If the Attorney General’s consent requirement is removed and the standing to bring prosecutions is given to affected groups and individuals there is no guarantee that the number of prosecutions would increase (Solomon, 1995). Even with this change, there is no guarantee that the society at large will demand speedy trials, strong judicial condemnation of hate and financial support for affected groups and individuals to bring hatemongers to trial. In other words, without

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change, the length of time, the divided and weak judicial support, and the financial costs involved in a prosecution as in the Keegstra case will continue. As a result, it is most likely that the increase in the number of prosecutions may become short-lived phenomenon. Even if there were an increase in the number of prosecutions there is nothing to suggest that there would be an increase in convictions. There may be other reasons for low convictions. It is possible that Attorneys General have prosecuted hate mongers under section 319(2) whenever a conviction is most promising. The commonly demonstrated reluctance to institute criminal proceedings may, at least partly, be attributable to the desire to prevent hatemongers from winning support for their causes of hatred in the court of public opinion (McNamara, 1994:206). Graham Hughes argues that even before Bill C-3 was introduced, that such prosecutions might excite sympathy for the accused in communities where sympathies for hatred are supported by a significant minority (Hughes, 1996:365). Three decades later, some authors continue to doubt whether prosecutions have merely provided a forum for hatemongers to spread hatred, since some hate-mongers have obtained sympathy for their causes of hate (McNamara, 1994:206-207). Daniel Gamble argues that prosecution publicity makes hatemongers wealthier and well-known, attracting new recruits (Gamble, 1995; Prutschi, 1992:249-277). One may argue that in a society such as Canada where hate is embedded in our culture, prosecution may bring mass sympathy for hatemongers. As a result, one could argue that hatemongers may even prefer prosecution in order to receive publicity. Unless there are cases with very clear mass disapproval, the arguments for freedom of speech may be relatively easier to sell in a court of public opinion than the arguments against hateful speech. As Suriya so adroitly points out, “those who suggest wording changes to Bill C-3 provisions to make them effective miss the point that it is not the wording which prevents convictions; it is the on-going competition over the enforcement and legitimacy of Bill C-3 provisions which prevent convictions. The same argument can be made for “adding in” the categories of age, sex, mental or physical disability and sexual orientation to the protected provisions. It may not be the broadening of the categories that is necessary to help disenfranchised groups, but rather the change in values about law enforcement and the legitimacy of Bill C-3. These criticisms of the present case law in Canada suggest the “adding in” unprotected categories to the present protected groups may do little to change the law enforcement response and attitudes generally in society. Others argue that the increased social control of language and criminalization of hate activity may actually work to normalize many forms of hate in Canadian society. If it seems that the Criminal Code protects Canadians from hate mongering, then individuals may perceive that society is moving in the direction it should, leaving it up to legalists to determine the degree of illegality practiced by hate-mongers.

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Wayne Renke argues that attempts to put a face to perpetration minimizes both the depth and complexity of hate in Canada. He argues that the important elements in Canadian hate conduct are more faceless, more inarticulate, and more deadly (Renke, 1994:837). Luke McNamara suggests that the issue of hate must be addressed in a broader social and historical context (1994). From this perspective, as Suriya suggests, the criminalization of hate is not effective (Suriya, 1998:76) and following this, the “adding on” of groups in need of protection will possibly do little to challenge hate propaganda against women, youth, the elderly, the differently abled, and gay men and lesbian women. What may therefore be necessary is a change in the conceptual framework used to frame questions about the effect of hate propaganda on society. The events which led to the development of hate crime law were steered by the communities most affected by hate. Thus, colour, race, national or ethnic or national origin, and religion are protected categories under Canada’s hate propaganda provisions. In the 1960s the communities most affected were successful in using their own political power and resources, to create a consciousness against hate offenders. Although this consciousness was not broad-based so that most members of society strongly condemned hate, it was sufficient enough to pass for a broad based consensus in bringing about changes to the Canadian Criminal Code through Bill C3. In 1995, Bill C-41 passed as a result of the advocacy of groups which supported the enhancement of sentences proven to be motivated by hate. Thus, groups such as B’nai Brith of Canada, the Canadian Jewish Congress, The Toronto Mayor’s Committee on Community and Race Relations, the Urban Alliance on Race Relations, Centre de Recherche-Action sur les Relations Raciales, Equality for Lesbians and Gays Everywhere, The Coalition for Lesbian and Gay Rights in Ontario, The 519 Church Street Community Centre, and the Ottawa Police Liaison Committee for Lesbian, Gay, Bisexual, and Transgender Communities. These groups saw the importance of the enhanced sentencing provision under the Criminal Code in that it sends a signal to hate mongers and society in general, that Canada wishes to prosecute those who commit hate motivated crimes. Suriya (1998) notes, the ineffective enforcement of hate crime is a reflection of an attempt of different competing groups to maintain the upper hand and control the process of lawenforcement. One may argue that the actions against the spread of hateful speech can be presented as a restriction against the freedom of speech. Where freedom of expression is accepted in society, the enforcement of actions against spreading hate propaganda through the courts of justice becomes a difficult task. The public may not support the inclusion of new protected categories under the Bill C-3 provisions, or may be indifferent to it. Worse, no matter what definitional change is introduced to the protected categories, the idea of freedom of speech will possibly take the upper hand in the court of public opinion. In terms of thinking about how to research this issue we must question therefore whether the criminalization of hate normalizes and covers up many forms of hate in Canadian society. Implicated in legalities, the focus of hate crime offence convictions is on hate crime offenders. At

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the same time, the criminalization of hate designates only a small number of people in society as hate crime offenders. As a result, the criminalization of hate may give the false pretence of security. It may also suggest that the society at large is not engaged in hate conduct, confirming the dominant view that hatred in Canadian society is a product of extremist groups. As Suriya (1998) points out, “the important elements in Canadian hate conduct are endemic in and are more faceless, inarticulate, and more deadly” (Suriya, 1998:81). In other words, the criminalization of hate may appear to in fact normalize and cover up many forms of hate in Canadian society. Definitions of what constitutes hate propaganda vary so that while feminists argue that violent pornography is hate propaganda directed toward women as a group, others argue that there is no proof that such language and images has any effect on society or the activities of individual males. Hate propaganda directed at feminists and abortion providers is considered to be freedom of expression. Likewise, hate propaganda directed at gays and lesbians is clouded behind religious discourse which suggests gays and lesbians are sick, depraved, harmful to society, evil, child molesters and anti-family. Subtle forms of hate directed toward homeless youth, welfare recipients, elderly, and disabled is hidden behind a discourse of “freedom of expression” -- with the result that most people are “unaware” of the social effect upon the larger group and society. There is limited research on the effect of hate propaganda on targetted groups in Canada. Ultimately, therefore, the question of whether the criminalization of hate goes far enough remains unanswered. Canadians must develop a comprehensive response to combatting hate. The literature suggests that the criminalization of hate by itself is not effective in combatting widespread hatred in Canada. Before providing recommendations to guide future research on conceptualizing hate propaganda the psychological impact and present primae facie evidence of hate propaganda, as well as the current domestic and international laws must be investigated.

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2.0 INTERNATIONAL/DOMESTIC HUMAN RIGHTS AND LEGISLATION18 The following is an overview of international and domestic human rights and legislation with a focus on how it relates to the expanded groups. A trend found in the following legislation is that all comment on the impact of migration and immigration in the growth of right wing activity. Many of the domestic programmes implemented in response to anti-racist activity focus on youth, education, police training, and media. Cohen’s comparison of domestic remedies for hate propaganda reveals the same hierarchy of minority-rights claimants that pervades international law (Cohen, 2000:87). Cohen writes, although “free and democratic societies in every region of the world have now enacted ... [hate propaganda] legislation” (Cotler, 1996:20-61), most of this legislation exhibits the same underinclusiveness as Canada’s (Coliver, 1992; Lerner, 1965; Schwartz, 1996). The United Kingdom specifically targets racial incitement, having drawn the line at “racist speech” that is “threatening, abusive, or insulting” (Johannessen, 1994:8).Germany prohibits “inciting the public to race hatred,” and it has also enacted specific proscriptions on Holocaust denial (Appelman, 1996:432). South Africa’s hate propaganda legislation has its roots in the African national Congress’s Bill of Rights, which was designed to dismantle apartheid and reduce systemic racism (Neisser, 1994:336; Johannessen, 1997:141). Many other African nations have enacted hate propaganda legislation, most of which mirrors those nations’ obligations under the United Nation’s (Defeis, 1992:118-119). As these examples illustrate, many nations have used hate propaganda laws to address a particular experience with racial or religious persecution. As Cohen notes: Such laws aim to conclude a historical narrative that begins with persecution and ends with reconciliation, and enshrines a vision of racial and religious harmony into the criminal law. Just as sexual orientation, age, and ability are absent from these narratives, so too are they absent from anti-hate legislation (Cohen, 2000:87). a. Universal Declaration of Human Rights (1948) “The general limitation clause in the Universal Declaration provides that “‘[t]hese rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations’ of which one of the significant goals is to promote and encourage respect for human rights and fundamental freedoms ‘without distinction as to race, sex, language, or religion.’”(Cohen, 2000:85). b. International Covenant on Civil and Political Rights (ICCPR) (1976) The ICCPR modifies the Universal Declaration’s list of identifiable grounds slightly, requiring states to prohibit “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence...”(Defeis, 1992:83).

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c. International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1965) One of the strongest statements on hate propaganda in international law is the CERD, which requires signatories to “adopt immediate and positive measures to eradicate all incitement to, or acts of, such discrimination ... [by declaring] punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts ...” (CERD, supra note 83, art 4). d. Convention on the Prevention and Punishment of Crime of Genocide (1951) The Genocide Convention, provides that “[d]irect and public incitement to commit genocide” shall be punishable, defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, [sic], racial or religious groups [sic] ...” (Genocide Convention, supra note 83, arts. 2, 3). e. Regional conventions in Europe, Africa, and Latin America Like the Universal Declaration, neither the European Convention nor the African Charter explicitly requires states to proscribe hate propaganda; however, the European Convention affirms equality and non-discrimination rights on the basis of “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” (European Convention, supra note 83, art. 14). Regional conventions in Europe, Africa, and Latin America omit sexual orientation from their enumerated grounds of discrimination however, the European Convention for the Protection of Human Rights and Fundamental Feedoms (1950) affirms equality and non-discrimination rights on the basis of “sex, race, colour, language, religion, property, birth or other status.” According to Cohen, “these rights have been interpreted by both the European Court of Human Rights and the European Commission of Human Rights to permit restrictions on speech that promotes racial and ethnic hatred.” (Cohen, 2000:85; Defeis, 1992:98-103). Cohen reports that the Helsinki Final Act does so indirectly in its article on respect for human rights and fundamental freedoms, which requires participating states to act in conformity with the Charter of the United Nations and the Universal Declaration. The American Convention on Human Rights: Pact of San Jose, Costa Rica (1969) is more specific, requiring states to prohibit “propaganda for war and any advocacy of national, racial, or religious hatred ... against any person or group of persons on any grounds including those of race, color, religion, language, or national origin ...” (American Convention, surpa note 83, art. 13(5)). f. Council of Europe Convention on Cyber-Crime As of September 11th Canada will also sign the Council of European Convention on CyberCrime. The Convention requires states to criminalize certain forms of abuse of computer systems and certain crimes, like hacking, when they are committed through the use of computer systems. The convention also supports international cooperation to detect, investigate and prosecute these

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criminal offences, as well as to collect electronic evidence of any criminal offence, including terrorist crimes, terrorist financing and money laundering offences. Some of the other prohibited activities covered by the convention include interference of computer systems, fraud and forgery. Canada would ratify the convention at a later date (Department of Justice, Backgrounder, 2001). g. Statute of Rome The 1998 Statute of Rome establishes the framework for the proposed International Criminal Court, directed at bringing individuals – as opposed to states – to justice for war crimes, crimes against humanity and genocide. Canada, touted as one of the countries in the forefront of setting up the court and promoting the ratification process, gave its blessing in July 2000 (Joyce, 2001). The idea for an international court was first proposed about 55 years ago at the time of the Nuremberg trials for the Nazi war crimes. Irving Cottler suggests that the list of crimes against humanity and war crimes may cover terrorist acts as outlined under Canada’s Bill C-36 (AntiTerrorism Bill), as well as activities already outlined in the Criminal Code, such as hate crime and murder (Joyce, 2000). The United States, Libya, Syria, Iraq, and Iran have not ratified the treaty, “which may be a concern in terms of international effectiveness” (Joyce, 2001). Cohen, who provides a meticulous dissection of the international responses concludes “Although five major international human rights documents contain specific limitations on hate speech, and three others contain general limitations on speech, none includes sexual orientation among its identifiable grounds” (Cohen,2000:84). 2.1 International Conventions: Protecting Race and Religion In 1948, the United Nations passed the landmark Convention on the Prevention and Punishment of the Crime of Genocide, which formulated principles for conceptualizing crimes motivated by ideologies of racial supremacy. Subsequent hate laws in many countries were based on the parameters established in the U.N. convention and in its International Convention on the Elimination of All Forms of Racial Discrimination (1969). Canada is a signatory to the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, which states in Article 4 that hate propaganda is illegal, that states should criminalize the dissemination of ideas based on racial supremacy or racial hatred, and that all organizations promoting such ideas should be declared illegal. While Canadian law has no provision to criminalize the formation of or membership in a hate group, Canada has endorsed these general moral principles, which are embedded in its Criminal Code provisions. There are various International Conventions that Canada is signatory to such as the Geneva Conventions, the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, the International Covenant on Economic, Social and Cultural Rights, the

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International Convention on the Elimination of All Forms of Racial Discrimination, the European Convention on Human Rights, the Rome Statute of the International Criminal Court, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Declaration on the Elimination of Violence Against Women (Van Dien, 2000). While there are specific Conventions which attempt to seek redress for harms to women (sex), sexual orientation, age, and mental and physical disability are not specifically set out as categories in need of protection in most of the Conventions. Some of the Conventions provide open-ended options for the inclusion of “other” categories by specifying “other status”. For the most part, international Conventions focus on prevention and redress for harms of racial, religious, and national discrimination, genocide, incitement to hatred and hate propaganda, with open-ended options for the inclusion of unmentioned groups. The Statute of Rome, which Canada is a signatory to and is yet to be ratified, sets out specific prohibitions on harms to women under Article 7, Crimes Against Humanity. This is a significant advancement on previous Conventions which failed to specify the nature of potential harms toward women and girl children. While the Convention on the Elimination of All Forms of Discrimination against Women stated that states should work toward eliminating sexist prejudice, it did not specify what forms these prejudices might take. The Declaration on the Elimination of Violence Against Women focuses on violence against women which may result in Aphysical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life” precluding a discussion of hate propaganda which may support or incite hated motivated violence. 2.1.1 The International Convention on the Elimination of All Forms of Racial Discrimination (CERD)Article 4 of CERD A strong argument put forward for the creation of specific criminal legislation directed at bias-motivated conduct is that such action is required by international human rights treaties. In this regard, Canada is a signatory to both the International Convention on Civil and Political Rights (ICCPR) and the International Convention of the Elimination of All Forms of Racial Discrimination (CERD). Specifically, Article 4 of CERD provides, in part, that State Parties, with due regard to the principles embodied in the Universal Declaration of Human Rights (UN): (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof...

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What is the effect of these international human rights documents in Canadian criminal law? The Supreme Court of Canada will rely on Canada’s International legal commitments to assist in determining whether or not criminal law legislation is consistent with, or contravenes, the Charter. For example, in R. v. Keegstra, the majority of the Supreme Court used CERD and ICCPR to show that Parliament had a legitimate objective in enacting the crime of wilfully promoting hatred (Code, section 319(2) one of the hate propaganda crimes), thus using those international human rights instruments to help uphold the legitimacy of that criminal legislation. Much has been written from an international perspective on the topics of group defamation and racist oppression (Clark, 1995; Hauptman, 1995; Dower, 1995), the relationship between language and violence (Fergenson, 1995; Freedman, 1995; Matsuda, 1995), group defamation in international and comparative law (Henkin, 1995; Freedman, 1995; Partlett, 1995; Kretzmer, 1995), group defamation and the U.S. First Amendment (Freedman & Freedman, 1995; Bollinger, 1995; MacKinnon, 1995; Lasson, 1995; Friedman, 1995), and legal approaches to the control of group defamation (Freedman, & Freedman, 1995; Freedman, 1995; Ribakoff, 1995; Bachana, 1995; House, 1995). Cowl (1994) documents the international program and policy responses to hate group activities. What these debates reveal is that while International Conventions have the ability to provide symbolic guidance, states also have the power to define for themselves the legal structures defining and regulating groups to be protected under hate propaganda provisions. 2.1.2 United Nations: United Nations Article 14 (Overview of Procedure): Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination (1982) establishes a procedure which makes it possible for an individual or a group of persons who claim to be victims of racial discrimination to lodge a complaint with the Committee on the Elimination of Racial Discrimination (CERD) against their State. (eg. the Indian Act). This may only be done if the State concerned is a party to the Convention and has declared that it recognizes the competence of CERD to receive such complaints. The Convention also provides that States which have made the declaration may establish or indicate a national body competent to receive petitions from individuals or groups who claim to be victims of violations of their rights and who have exhausted other local remedies. Only if petitioners fail to obtain satisfaction from the body indicated may they bring the matter to the Committee’s attention. In the Programme of action adopted by the Second World Conference to Combat Racism and Racial Discrimination in 1983, States were asked to make access to their national procedures for dealing with complaints of this kind as easy as possible. The procedures should be publicized and victims of racial discrimination should be helped to make use of them. The rules for making complaints should be simple, and complaints should be dealt with promptly. Legal aid should be

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available for poor victims of discrimination in civil or criminal proceedings and there should be the right to seek reparation for damages suffered. The procedure for communications from individuals or groups claiming to be victims of a violation of the Convention to be received by CERD came into operation in 1982 when 10 States declared that they accepted the Committee’s competence in this field. The Committee brings such communications confidentially to the attention of the individual or group claiming violation. When the State has given an explanation of its views and perhaps suggested a remedy, the Committee debates the matter and may make suggestions and recommendations, which are transmitted both to the individual or group concerned and to the State party. 2.2 The “Others” The language of the International Conventions might lead one to consider that “all persons” could include ‘sexual orientation,’ ‘sex’, ‘age’, or ‘mental or physical disability’, however, in many cases these categories are not specified. The Geneva Convention of 1948 outlines that “all persons” are entitled to respect for their person, honour, and convictions and religious practices, and outlines various fundamental guarantees. The Universal Declaration of Human rights Article 7, states that “all persons” are equal before the law and are entitled without discrimination to equal protection of the law. Article 22 further outlines rights of individuals, however does not specifically state who these individuals are. The International Covenant on Civil and Political Rights, Article 19, states that “everyone” has the right to hold opinions without interference and that everyone shall have the right to freedom of expression. Article 20 prohibits any propaganda for war, and section 2 prohibits any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Article 26, specifies protections for “persons” on any ground “such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,” leaving open ended the provision that all persons are equal before the law and entitled without discrimination to the equal protection of the law. Absent from the protected categories is age, mental or physical disability, and sexual orientation, however sex is included. Language is protected under Article 27, which states that where ethnic, religious or linguistic minorities exist, persons belonging to such minorities to enjoy their group, their own culture, and have the right to profess and practice their own religion, as well as use their own language. Sexual minorities and disabled persons are absent from this definition of “cultural group.” In the Convention on the Prevention and Punishment of the Crime of Genocide, “genocide” refers to acts committed with intent to destroy, in whole or in part, a “national, ethnical, racial or religious group,” in order to kill members of the group, cause bodily or mental harm, inflict conditions of life which will bring about physical destruction, impose measures to prevent births, or forcibly transfer children from one group to another. Acts punishable under Article 3 are genocide, conspiracy to commit genocide, direct and public incitement to commit

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genocide, attempting to commit genocide, or complicity in genocide. Certain categories are missing from protection under anti-Genocide convention, in particular, groups such as women, homosexuals, children, the elderly, the mentally or physically disabled. The International Covenant on Economic, Social and Cultural Rights outlines the responsibilities of States under the Universal Declaration of Human Rights, and specifically outlines the requirements for economic, social and cultural rights to be exercised without discrimination as to “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”, leaving open-ended the categories to be protected. The International Convention on the Elimination of All Forms of Racial Discrimination, which was ratified in 1970 sets out to protect groups according to “race, colour or national or ethnic origin.” The Convention also sets out to condemn all propaganda and all organizations which are based on ideas or theories of superiority of any one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form. The Convention also specifies that dissemination of “ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities...” The Convention prohibits organizations which promote and incite racial discrimination, and recognizes participation in such organizations to be punishable before law. The Convention also prohibits public authorities or institutions from promoting or inciting racial discrimination. Under Article 5, the Convention sets out certain inalienable rights to “everyone, without distinction as to race, colour, or national or ethnic origin.” The European Convention on Human Rights, of which Canada is not a member, states that “everyone” has the right to freedom of expression, and the exercise of certain freedoms, and “shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status,” leaving open-ended the categories protected. Age, mental or physical disability and sexual orientation are absent from the protected categories, however, one may read in any of these groups to the “other status” group. The Rome Statute of the International Criminal Court of which Canada is a signatory, protects the categories of national, ethnic, racial or religions groups under Article 6, genocide, and Article 7, Crimes Against Humanity. Specific to the category of gender, the Statute stipulates that a ‘crime against humanity’ includes “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence,” and persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized under international law.

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The Convention on the Elimination of All Forms of Discrimination against Women which Canada ratified in 1981, specifically protects sex under Article 3 and Article 5. The Convention outlines that states must ensure the full development and advancement of women, and that states must take appropriate measures to modify the social and cultural patterns of conduct of men and women with the view to eliminating prejudice, and to eliminating the idea of the inferiority or the superiority of either of the sexes. Finally, the Declaration on the Elimination of Violence Against Women states that states are to condemn violence against women and work to prevent genderbased violence that results in physical, sexual, or psychological harm or suffering to women. While reading in age, sex, mental or physical disability, or sexual orientation may be possible in many of the Conventions, the exclusion of these categories means that these groups must first prove the relevance of their inclusion. 2.2.1 Alternative Strategies to Combat Sexual Orientation Hate Propaganda Some countries provide helpful examples of how to use different strategies to combat sexual orientation hate propaganda. According to Cohen, the Netherlands and New South Wales are two such countries (Cohen, 2000:87). In 1993, the government of New South Wales passed the Anti-Discrimination (Homosexual Vilification) Amendment Act, which outlaws all homosexual vilification that does not take place during the course of religious instruction. This act contains two types of proceedings: (1) a civil complaint procedure to the Anti-Discrimination Board about a ‘public act’ that incites hatred toward, serious contempt for or severe ridicule of a person or group of persons on the ground of their homosexuality; and (2) criminal proceedings permitted by the attorney general where threats of physical harm towards persons or property are made or where there is incitement to threats of such physical harm on the ground of a person’s homosexuality. A number of social and political factors contributed to the enactment of this legislation, chief among them the release of the Anti-Discrimination Board’s Inquiry into HIV/AIDS-related discrimination. This report proposed the introduction of homosexual vilification legislation on the grounds that “public vilification of gay men encouraged and incited discrimination and violence against gay men.” Combined with public pressure from the lesbian and gay community and an increase in gay bashing and murders (Tomson & Mason, 1997), this finding galvanized key members of Parliament into proposing the bill three times in one year. Aside from a few objections that it would interfere with freedom of speech, the bill passed with little public debate. 2.2.2 Civil Remedies for Sexual Orientation Hate Propaganda: Van Zilj v. Goeree

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In the area of civil remedies, a recent decision of the highest court in the Netherlands signals substantial progress in the redress of sexual orientation hate propaganda (Cohen, 2000:88). Cohen recounts that in Van Zilj v. Goeree19, the Dutch Supreme Court (Hoge Raad) issued an injunction against the further publication of an anti-gay article entitled “Sodom is Everywhere,” which was published by a militant religious group led by the Reverend Goeree (Mattijessen, 1999). The article contained numerous slurs against lesbians and gay men, including warnings that lesbians and gay men would be punished with AIDS by God. The following were among the statements: Now that homosexuality has been legalized, the new death appears. It is the result of sin: AIDS! A consequence of homosexuality is AIDS which, without possibility of appeal, brings about death. Being a lesbian is rewarded. AIDS passes by the door of lesbian women. At the moment, anyway. Ten years ago, the homosexuals were rewarded like this. They didn’t have AIDS. God lets no-one [sic] ridicule him. Those who practice homosexuality incures [sic] a blood-guilt comparable to a murderer. He deserves the death penalty. Homosexuality leads irrevocably to damnation. Legalization of homosexuality is the product of a reprehensible government leading the country into ruin.” (Scahill, 1994:303). The slurs prompted a distressed AIDS nurse to seek both an injunction and damages for each day the article appeared in print. Although the plaintiff was not named in the article, he feared that readers of the pamphlet would accuse him of being responsible for the transmission of the virus. The Hoge Raad balanced these fears against the pamphleteer’s freedom of religion, ultimately deciding in the plaintiff’s favour. In its ruling, the court noted that the propaganda diminished the plaintiff’s position in society and thus violated his right to equal treatment under the Dutch Constitution. This right, which prohibits discrimination “on any grounds whatsoever” (Scahill, 1994:306) thus functioned to limit the right to free speech. Cohen (2000) asks how and whether the Netherlands ruling would be able to exert influence on Canadian courts and argues that on the one had, the ruling would appear to have little influence on Canadian courts. One reason is that Dutch courts apply non-discrimination principles to the private, as well as the public, sector, while Canada applies its equality provisions only to state actors.20 On the other hand, Cohen notes that Goeree contains normative principles that merit the attention of Canadian courts and legislators. (1)

First, the court’s emphasis on hate propaganda as a violation of equality rights suggests that expanding even Canada’s Criminal Code to protect sexual minorities may be constitutionally required. Rather than adopting the view that additional protection constitutes a further offence to freedom of expression values, Canadian courts might balance such an offence against the equality guarantee in subsection 15(1) of the Charter.21

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(2)

Second, Van Zijl’s testimony suggests that a cause of action in group libel may not be as far-fetched as is traditionally believed. As a gay man with a prominent AIDS-related position at a local hospital, Van Zijl had a reasonable apprehension that readers of the article would accuse him of transmitting the AIDS virus. Depending on the surrounding circumstances, he may have believed that the article implicated him personally.

As Cohen discusses, such circumstances may be said to conform to the community law test for group libel. Finally, Cohen notes the international importance of this decision: the court’s recognition of sexual orientation hate propaganda marks a watershed for hate propaganda jurisprudence and the rights of sexual minorities generally. By combining a committment to regulating hate propaganda with a constitutional obligation to protect sexual minorities, the Goeree decision calls on Canada to do the same.22 In contrast to other countries, Cohen (2000:90) notes that the United States has remained a “conspicuous exception” to the worldwide trend toward criminalizing hate propaganda. The United States entered a ‘reservation’ to the UN Covenant on Human Rights, signifying that its approval did not include the Covenant’s prohibition of group libel.23 Having clung to a strong First Amendment, the United States now resorts to regulating group hatred only after it has turned to violence. “It is not until the commission of an anti-gay hate crime that federal hate crimes legislation kicks in, providing the relatively small mercy of an increased sentence or a hate crimes statistic.”24 (Cohen, 2000:90). Meanwhile, scholars continue to debate whether the Supreme Court’s decision in Beauharnais v. Illinois25 is still good law, and municipalities and college campuses struggle to fine-tune their hate speech regulations so as to survive First Amendment scrutiny.26 Cohen notes that although the First Amendment exerts a profound influence on the hate propaganda debate, Dickson C.J.C. held in Keegstra that Canada “must not hesitate to depart from the path taken in the United States.” Civil libertarians are quick to disparage such departures, claiming that they represent a naivete about the courts’ ability to prevent mass censorship. Cohen suggests the better view is that the divergence stems from different normative conclusions about the value of freedom of expression as against equal protection and non-discrimination. Cohen concludes, “[t]hese conclusions reflect a society’s deepest aspirations, including whether it wishes to place the community above the individual and to recognize any group as a potential beneficiary of legal protection. Having diverged from the American path, Canada is now obliged to do so equitably” (Cohen, 2000:91). In January, 2000, the Parliamentary assembly of the Council of Europe voted to add “sexual orientation” to the list of prohibited grounds of discrimination in draft protocol #12, designed to strengthen the antidiscrimination provisions of the European Convention on Human Rights. Senator Jurgens of the Netherlands points out that many of the 41 member states have antigay legislation and only 11 have laws against antigay discrimination. For: Spain, Hungary,

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UK, Luxembourg, Italy, Belgium, Poland, Turkey. Against: European Democratic Group. ILGA report documents homophobia in action in all European countries even leaders in gay rights like Sweden: in 3, same-sex relationships are criminal, 19 more have discriminatory sexual-offence provisions; many allow discrimination in employment particularly in the military; only 9 countries offer specific protection; political leaders are often homophobic in public statement (CLGRO, 2000). While there are specific Conventions which attempt to seek redress for harms to women (sex), sexual orientation, age, and mental and physical disability are not specifically set out as categories in need of protection in most of the Conventions.2 At the 1993 UN World Conference on Human Rights, held in Vienna, Canadian PC MP Dorothy Dobbie denounced discrimination on the basis of sexual orientation or HIV infection. Canada thus becomes the second country at the UN (Holland being the first) to call for an end to discrimination against lesbians and gay men. Five countries -- Holland, Canada, Austria, Germany, Australia -- call for an end to discrimination on the basis of sexual orientation. MP Svend Robinson moved this be included in the final conference declaration (CLGRO, 1993:7). Some of the Conventions provide open-ended options for the inclusion of “other” categories by specifying “other status.” For the most part, international Conventions focus on prevention and redress for harms of racial, religious, and national discrimination, genocide, incitement to hatred and hate propaganda, with open-ended options for the inclusion of unmentioned groups. Canada is not a signatory to the European Convention on Human Rights. The Statute of Rome, which Canada is a signatory to and is yet to be ratified, sets out specific prohibitions on harms to women under Article 7, Crimes Against Humanity. This is a significant advancement on previous Conventions which failed to specify the nature of potential harms toward women and girl children. While the Convention on the Elimination of All Forms of Discrimination against Women stated that states should work toward eliminating sexist prejudice, it did not specify what forms these prejudices might take. The Declaration on the Elimination of Violence Against Women focuses on violence against women which may result in “physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life” precluding a discussion of hate propaganda which may support or incite hated motivated violence. At the International Convention on the Elimination of All Forms of Discrimination Against Women, (1999) Canadian delegates from the federal Status of Women did not have success in getting ‘sexual orientation’ included in the diversity clause under protection from discrimination on the grounds of race, class, and ethnicity; reference to immigrant and refugee status was included; also the phrase “women with other status” under which the Canadian delegates insisted that an asterisk indicate that Canada takes “others” to include sexual orientation. The Holy See and various countries were opposed to including lesbians (CLGRO, 1999:10).

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2.3 UNITED STATES During the 1980s, over forty states enacted new laws pertaining to hate or ‘bias’ crimes. However, a June 1992 ruling by the Supreme Court reaffirmed the tradition of favouring the right to free speech in the U.S. and may curtail the use of law reform as a response to hate group activities. The ruling in R.A.V. v. St. Paul,27 struck down a hate crime ordinance in St. Paul, Minnesota and was viewed as a blow to those attempting to implement campus speech codes and other legal efforts against hate crimes (Heumann & Church, 1997; Freedman & Freedman, 1995:22128). In the predawn hours of June 21, 1991, a group of teenagers assembled a crudelymade cross by taping together broken chair legs. They then burned the cross inside the fenced yard of a black family that lived across the street from the house that one of the teenagers was staying. The teenagers were charged under the St. Paul Bias-Motivated Crime Ordinance, which stipulated that burning a cross or Nazi swastika with the intent to arouse anger, alarm or resentment, on the basis or race, colour, creed, religion or gender is disorderly conduct and shall be guilty of a misdemeanour. The trial court granted this motion, but the Minnesota Supreme court reversed because the ordinance reached only expression “that the First Amendment does not protect” rather than “fighting words,” i.e. “conduct that itself inflicts injury or tends to incite immediate violence...,” (Freedman & Freedman, 1995:222). As Freeman notes, “the First Amendment generally prevents government from proscribing speech, or even expressive conduct because of disapproval of the ideas expressed” (Freeman & Freeman, 1995:222). In the United States, the issue of hate groups and their right to promote their views in society has been closely tied to the libertarian legal tradition which provides the utmost protection for the First Amendment right to free speech. This protection is premised on the notion that freedom of speech is essential to the preservation of a democratic state. Many cases in recent years have illustrated the conflict in the American legal system between the First Amendment and efforts to control hateful speech. In the 1970s, the “Skokie Case”, (Collin v. Smith),29 decided that a march and speech of a Nazi group through a predominantly Jewish community should be allowed. The judgement, which was based on the protection of free speech under the First Amendment, has set a “difficult precedent” for censorship and/or regulation of hateful speech. The debate over Apolitical correctness”, particularly on university campuses, has further brought into light the conflict between rights of freedom of speech and the rights of those targeted by hateful speech (Heumann & Church, 1997). 2.3.1 U.S. Legislative Overview: Civil Rights Act 1964 Beginning in 1964, the full protection of all members in society in the United States was covered by various statutes under the Civil Rights Act. Combined with the United States Constitution, Civil Rights legislation guarantees equal rights under the law for public accommodation, schools, employment, voting rights, fair housing and credit. Federal legislation

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which specifically targets the prosecution of hate-motivated crimes includes the Religious Vandalism Act of 1988 (which makes specified acts of religious vandalism a crime) and various statutory provisions within federal Civil Rights Legislation which have been used to prosecute hate-motivated crimes. 2.3.2 Hate Crime Statistics Act (1990) The monitoring and reporting of hate crimes at the federal level was formalized with the introduction of the Hate Crime Statistics Act of 1990 which requires the Attorney General must acquire data about crimes motivated by prejudice based on race, religion, sexual orientation or ethnicity. The statistics, first tabulated and made public in 1990 and to be updated every four years, are based on crimes such as murder, non-negligent manslaughter, aggravated and simple assault, rape, intimidation, arson, and destruction, damage or vandalism of property. 2.3.3 Hate Crime Sentencing Enhancement Act (U.S.) The Hate Crimes Sentencing Enhancement Act increases the penalties for federal crimes where the victim, was selected “because of the actual or perceived race, colour, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person. Age is absent from this categorization process. This sentencing enhancement was used in the case of Matthew Sheppard who was murdered because he was assumed to be gay. In addition, over forty States have enacted various laws regarding hate-motivated crimes. These laws include bans on paramilitary training and religious desecration, requirements that police collect data on hate crimes, and enhanced penalties for hate-motivated crimes. By 1991, all but four states had adopted some form of hate crime statute. However, both the Wisconsin and Ohio supreme courts ruled that such laws violate the First Amendment. Government legislation in the United States regarding bias crimes penalty enhancement and/or monitoring of bias crimes has been lax regarding activities and crimes motivated by the sexual orientation and/or sex of the victim. The Hate Crime Statistics Act did not include gendered hate crime to be a category in need of documentation. As of 1990, 22 states and the District of Columbia enacted laws to monitor and/or enhance penalties for hate crimes. However, only nine of the states extended the legislation to address anti-gay activities and bias crime legislation was blocked or amended to delete ‘sexual orientation’ in five other states. At the federal level, congressional passage of the Hate Crime Statistics Act was delayed due to opposition by some legislators who opposed the extension of this Act to monitor anti-gay crimes. 2.3.4 United States Proactive Policies and Programs Within the U.S. Department of Justice, the Community Relations Service (CRS) is the principal federal agency to address racial and ethnic conflict in the United States. The CRS was

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mandated by the 1964 Civil Rights Act to “provide assistance to communities and persons therein in resolving disputes, disagreements, or difficulties related to discriminatory practices based on race, colour, or national origin.” Conflict stemming from discrimination based on sexual orientation and religion is currently outside of CRS’ conflict resolution jurisdiction. The CRS works with local government officials and community leaders to promote positive relations among diverse groups and bring disputes to the negotiating table early, thus preventing or precluding more costly Federal intervention such as investigation, litigation, or prosecution. 2.3.5 The United States Commission on Civil Rights. The United States Commission on Civil Rights collects and studies information on discrimination or denials of equal protection of the laws because of race, colour, religion, sex, age, handicap, national origin, or in the administration of justice in such areas as voting rights, enforcement of Federal civil rights laws, and equality of opportunity in education, and housing. The Commission does not recognize the existence of or collect data on sexual orientation civil rights abuses. While the Commission reports its findings it has no enforcement authority. Its findings and recommendations are submitted to the President and Congress and many of the recommendations have been enacted. The Commission also evaluates Federal laws and the effectiveness of Government equal opportunity programs. The Commission is an independent bi-partisan, temporary agency originally established by the Civil Rights Act of 1957 and re-established by the U.S. Commission on Civil Rights Act of 1989 for anther six-year term. The Commission also works through State Advisory committees in each of the 50 States and the District of Columbia. These committees are comprised of private citizens which advise the Commission of civil rights problems in their particular areas and recommend actions to solve these problems. The Commission also coordinates civil rights works of other Federal Agencies. 2.3.6 Community Group Action There are a number of non-profit foundations in the United States which are supported by private donors. Such groups are the Southern Poverty Law Center (SPLC) which supports the Klanwatch project which monitors white supremacist and hate crime activity throughout the United States. Klanwatch helps curb Klan and white-supremacist activities and violence through litigation, education and monitoring. Since 1980, SPLC and Klanwatch have brought forth several lawsuits resulting in civil rights indictments of white supremacist group members and a number of million dollar civil settlements to the families of the victims of hate group violence. The payment of financial damages resulting from civil litigation has usually resulted in bankruptcy of those groups found liable in the respective cases. Another project, Teaching Tolerance, offers its educational materials at low or no price to teachers. Other American nongovernmental groups are the Anti-Defamation League (ADL), the Northwest Coalition Against

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Malicious Harassment, B’nai Brith and the Jewish Congress. 2.3.7 The Anti-Defamation Leagues Approach to Hate Crime Legislation (U.S.A.) The Anti-Defamation League model hate crimes legislation has been drafted to cover not just anti-Semitic crimes, but all hate crimes. Initially, the definition did not include gender, however later this category was added. Currently, 40 states and the District of Columbia have enacted laws similar to or based on the ADL model, and almost every state has some form of legislation which can be invoked to redress bias-motivated crimes. The core of the ADL legal approach is a “penalty enhancement” concept. In a landmark decision issued in June 1993, the United States Supreme Court unanimously upheld the constitutionality of Wisconsin’s penalty-enhancement hate crimes statute, which was based on the ADL model. Expressions of hate protected by the First Amendment’s free speech clause are not criminalized. However, criminal activity motivated by hate is subject to a stiffer sentence. A defendant’s sentence may be enhanced if they intentionally select their victim based upon their perception of the victim’s race, religion, national origin, sexual orientation, or gender. Age and disability are absent from the categories covered under the penalty-enhancement statute. The ADL model statute also includes an institutional vandalism section which increases the criminal penalties for vandalism aimed at houses of worship, cemeteries, schools and community centers. This provision is useful in dealing with crimes such as the very disturbing series of arsons which have occurred at Black churches across the South in recent years. The legislation also creates a civil action for victims and provides for other additional forms of relief, including recovery of punitive damages and attorney’s fees, and parental liability for minor children’s actions. Finally the model legislation includes a section on bias crime recording and training, since accurate, comprehensive data is essential in combatting hate crimes. 2.3.8 Federal Violence Against Women Act of 1994 (VAWA) In 1996 the Anti-Defamation League added gender to its model hate crimes legislation. The League chose to add gender after determining that gender-based hate crimes could not be easily distinguished from other forms of hate motivated violence. Gender-based crimes, like other hate crimes, have a special psychological and emotional impact which extends beyond the original victim. The inclusion of gender is important because it sends the message that genderbased crimes will not be tolerated. In the past eight years, as state legislators have realized that it is difficult to distinguish race-based and religion-based hate crimes from gender-based hate crimes, the trend has been to include gender in hate crimes legislation. In 1990, only seven of the 31 states which had hate crime statutes included gender. Today, 19 of the 41 statutes cover victims chosen by reason of

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their gender. Furthermore, the Federal Violence Against Women Act of 1994 (VAWA) allows individuals to file Federal civil law suits in cases of gender-based violence. After studying the statutes in which gender is included, ADL came to the conclusion that the inclusion of gender has not overwhelmed the reporting system, nor has it distracted the criminal justice system from vigorous action against traditional hate-based crimes. Clearly not all crimes against women are gender-based crimes, and prosecutors have discretion in identifying those crimes which should be prosecuted as hate crimes. Prosecutors also must have concrete admissible evidence of bias to charge an individual with commission of a hate crime. Even in cases where gender bias can be proven, prosecutors may decide that the penalty imposed by the underlying crime is in itself sufficient and penalty enhancement is therefore unnecessary. It is also important to realize that there has not been an overwhelming number of gender-based crimes reported as an extension of domestic violence and rape cases. 2.3.9 North Carolinians Against Racist and Religious Violence NCARRV Aside from the several national community organizations which deal with this issue, there are a number of state wide organizations, among them North Carolinians Against Racist and Religious Violence. Founded in 1983, NCARRV was established to eliminate hatemotivated violence in North Carolina by educating the public on the rise of this type of activity. NCARRV has worked to build bridges between and among a wide range of constituencies affected by hate violence rising from racism, antisemitism, and homophobia. 2.3.10 United States Legislation Over the past ten years, Congress has passed many pieces of legislation to help shape the future of hate crime initiatives and preventive measures. These anti-hate crime legislated acts include the (a) Hate Crimes Prevention Act of 1999; (b) The Church Arson Prevention Act of 1996; (c) The Hate Crimes Sentencing Enhancement Act of 1994; (c) The Hate Crime Statistics Act of 1990 and (d) The Freedom of Access to Clinic Entrances Act 1994. 2.3.11 Hate Crime Prevention Act of 1999 Bill: (H.R. 1082). This act Amends 18 U.S.C. 245 that prohibits persons from interfering with an individual’s Federal right (e.g. voting or employment) by violence or threat of violence due to his or her race, color, religion, or national origin. This act allows the Federal government to investigate and prosecute hate crime offenders who committed their crime because of perceived sexual orientation, gender, or disability of the victim. Age is not a category included under the Act. It also permits the Federal government to prosecute without having to prove that the victim was attacked because he or she was performing a federally protected activity. This act was amended and died on the floor just before the federal election of 2000.

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2.3.12 U.S. Church Arson Prevention Act of 1996: (18 U.S.C. 247). Due to an increase in attacks on Black churches in the south, the U.S. Church Arson Prevention Act of 1996 was passed. This Act created the National Church Arson Task Force (NCATF) in June 1996 to oversee the investigation and prosecution of arson at houses of worship around the country. The NCATF has brought together the FBI, ATF, and Department of Justice prosecutors in partnership with State and local law enforcement officers and prosecutors. In addition to the NCATF’s creation, the law allows for a broader Federal Criminal jurisdiction to aid criminal prosecutions, and include a loan guarantee recovery fund for rebuilding. 2.3.13 U.S. Hate Crimes Sentencing Enhancement Act (Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994). As a part of the1994 Crime Act, the Hate Crimes Sentencing Enhancement Act provides for longer sentences where the offense is determined to be a hate crime. A longer sentence may be imposed if it is proven that a crime against person or property was motivated by “race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation.” The category of age is absent from the categories in need of protection. 2.3.14 The Federal Freedom of Access to Clinic Entrances Act of 199430 (FACE) The federal Freedom of Access to Clinic Entrances Act of 1994 (which also protects places of worship) provides for both criminal and civil penalties for anyone who: a) Uses force, the threat of force, or physical obstruction to harm, intimidate or interfere with anyone obtaining or providing reproductive health services or seeking to exercise the right to worship; b) Intentionally damages, attempts to damage, or destroys the property of a place of worship or a facility that provides reproductive heath services.31 The criminal penalties are significant.32 Civil remedies also are provided.33 The U.S. Department of Justice since 1994 has obtained convictions of 56 individuals in 37 criminal cases for violations of FACE and other federal statutes relating to violence against health care providers. The department has also brought 17 civil actions against more than 100 defendants under FACE for interfering with access to reproductive health care services.34 Federal courts consistently have upheld FACE against constitutional challenges. 2.3.15 U.S. Hate Crime Statistics Act of 1990: (28 U.S.C. 534).

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This act requires the Department of Justice to collect data on hate crimes. Hate crimes are defined as “manifest prejudice based on race, religion, sexual orientation, or ethnicity.” These statistics are compiled by the FBI using the Uniform Crime Reporting system. The Crime Act of 1994 also required the FBI to collect data on hate crimes involving disability. Notably, ‘sex’ is absent. In the United States, the FBI now collects data on hate crimes as part of the Hate Crime Statistics Act of 1990. The 1995 data indicate that about 8,000 hate crimes occur each year, based on reports from 9,500 law enforcement agencies serving 75 percent of the population. In Canada, hate crime statistics have been collected in selected cities since 1993 (Roberts, 1995). 2.4 AUSTRALIA Legislation: Australian Federal Racial Discrimination Act of 1975 The Racial Discrimination Act 1975 enacts Australia’s international obligations under the United Nations International Convention on the Elimination of All Forms of Racial Discrimination adopted by the General Assembly of the United Nations. The major objectives of the Act are: to promote equality before the law of all persons regardless of their race, colour or national or ethnic origin; and, to make discrimination against people on the basis of their race, colour or national or ethnic origin, unlawful. It is notable that the Racial Discrimination Act excludes gender, age, ability, and sexual orientation. With respect to discrimination based on sexual orientation, Australia’s policy falls under its adherence to International Labour Organization (ILO) Convention No. 111, Discrimination in Employment and Occupation, 1958, which cites sexual preference as an unfair ground of discrimination. The full implementation of the Convention has yet to be finalized, as states, such as Tasmania still cites same-sex relationships as a criminal offence. In terms of criminal legislation, there are several states which have made serious racial vilification a crime, but there is no corresponding federal law to date. 2.4.1 Australian Proactive Policies and Programs: The Human Rights and Equal Opportunity Commission The Human Rights and Equal Opportunity Commission (HREOC) was created by the Australian Parliament in 1986. The role of the Commission is to be the body responsible for administering certain federal acts, in particular the above-mentioned Racial Discrimination Act 1975.

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2.4.2 Australian Racial Hatred Act 1995 Much of the recent debate in Australia over the merits of racial hatred laws has been conducted around the edges of the emergence of national legislation, which culminated in the passage of the Racial Hatred Act 1995 in September 1995. In its final form the legislation is considerably narrower than when the Racial Hatred Bill was first tabled in Parliament in late 1994 with the aim of creating both criminal offences and a ground of human rights complaint. As a result of amendments introduced by the Greens in the Senate, the provisions which would have added three new offences to the Crimes Act 1914 (Cth) were deleted from legislation. The main effect of the Racial Hatred Act 1995 (Cth) is the addition of ‘Part IIA-Prohibition of Offensive Behaviour Based on Racial Hatred’ to the Racial Discrimination Act 1975. Section 18C.(1) of the Racial Discrimination Act 1975 (Cth) now states: It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. The section applies to public conduct, although the fact that this is expressed in the negative (otherwise than in private) suggests that the scope of the legislation is to be interpreted quite broadly. Section 18B provides that race, colour, or national or ethnic origin need not be the only reason or even the dominant reason for the respondent’s conduct, although it must be the substantial reason. Section 18D specifies a number of exemptions from the operation of the legislation, providing that ‘Section 18C does not render unlawful anything said or done reasonably and in good faith’ in artistic works, for genuine academic, artistic, scientific or public interest purposes and in making/publishing either fair and accurate reports of events of public interest or comments on matters of public interest which are the expression of a genuine belief. Complaints can be made to the Human Rights and Equal Opportunity Commission for conciliation/adjudication (Racial Discrimination Act 1975 (Cth), section 22). Critics of this act make two observations. The most obvious is that for the first time, racial vilification is the subject of national legislation, allowing all victims of racial vilification, regardless of state or territory of residence, the opportunity to seek redress in a human rights forum. The second observation, is that while the Racial Hatred Act 1995 may be seen by some as a watered-down version of the laws originally proposed (because of the failure of the legislation to provide for criminal prosecutions) this ‘short-coming’ may, whatever its symbolic importance,

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be insignificant in practical terms. Notably absent from the Act are the categories of sex, sexual orientation, age and disability. 2.5 NEW SOUTH WALES In 1989 New South Wales became the first state in Australia to legislate against racial vilification. The introduction of this legislation, and discussion of similar provisions in other jurisdictions, rekindled debates about the legitimacy of legal limits on hate speech. However, as McNamara (1997) notes, little is known about the practical operation of anti-vilification laws. Mcnamara’s report presents the results of a survey of more than 160 racial vilification complaints handled by the New South Wales Anti-Discrimination Board from 1993 to 1995, providing an empirical foundation for critical assessment of anti-vilification provisions and of the conciliation based procedure which is currently employed in handling complaints. 2.6 GERMANY Germany has responded to the threat of hate-motivated activity by implementing legislation, proactive policies and programs, public education campaigns, education initiatives, youth services and programs, and monitoring the activities of Hate crimes through a focus on media issues. Three factors have impacted on the rise of right-wing radicalism in Germany in the 1990s. The first is Germany’s considerable population of “foreign” workers and the growing number of asylum-seekers drawn by the FRG’s economic wealth and lax asylum laws, which have been the primary target of hate groups in Germany. Violence and hostility against “foreigners” reached its peak in 1992. Since that time, the Federal Government has been working with the various Lander (states) to curb violence by right-wing extremists. Official government statistics indicate that since 1992, the recorded acts of violence against foreigners have been declining. Second, the reunification of Germany in 1990 impacted on economic and social issues. East Germany merged into the Federal Republic of Germany (FRG) with resulting economic hardships felt most strongly by youth. Much of the population in the former East Germany suffered many economic and social hardships as it was quickly enveloped into the FRG B thus engendering (especially with youth) a climate in which right-wing radicalism could fester. Third the former East Germany had previously been raised in an isolated political climate in which they were not exposed to ‘foreigners’ and where despotic and violent measures by the government to quell dissent were the norm. 2.6.1German Laws and Legislation

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The Basic Law of the Federal Republic acknowledges the inviolability of human rights as the basis of every community and guarantees the equality of all persons before the law. Further, it states that “no one may be prejudiced or favoured because of his sex, his parentage, his race, his language, his homeland, and origin, his faith, or his religious or political opinions.” The German Penal Code and Civil Code address the issues of Protection against incitement of racial hatred and the adequate reparation and indemnification for damages suffered through acts of discrimination. While sex, race and religion are categories protected under the German human rights legislation sexual orientation, age and ability are absent. Under the Basic Law, jurisdiction over the courts and police is placed under the realm of the federal states. This limits the federal government in responding to discrimination, violence and hate group activities. The government perception is that the Criminal Code can adequately deal with right-wing violence and other criminal acts as well as halting the dissemination of neo-Nazi hate propaganda. A new Crime Bill is being considered which would allow authorities greater leeway in dealing with hate groups. 2.6.2 Proactive Policies and Programs (Germany): The Campaign Against Violence and Hostility Toward Foreigners (December 1992) The Federal Government decided to deal with the wide-spread problem of hate group activities in a pro-active fashion by pooling the issues of extremism, violence and youth in a single initiative, the Campaign Against Violence and Hostility toward Foreigners. Roundtable discussions on the subject of combatting violence were held at the Federal Chancellery in September 1993. The campaign deals with the following four issues: 1) violence, problems of youth, youth work, education and information campaigns; 2) integration of foreigners; 3) measures taken by police, internal security authorities and public administration, as well as cooperation between the state and federal authorities; and, 4) reviews of legislation with an eye to amending laws in the area of criminal law and criminal procedure, as well as cooperation among judicial authorities at state level. Other Campaigns: are The Fairness and Understanding Campaign, The Families Know No Boarders Campaign, The House of Cultures of the World Campaign, Training of Police officers, Working with the German football Federation to target hostility at soccer matches, Federal Youth Plan (Federal Ministry for Women and Youth) AntiAggression and Violence Action Programme (1992), Monitoring the Activities of Hate Groups. The Federal Bureau for the Protection of the Constitution has expanded its efforts for the observation of hate groups. In addition, a joint federal-lander (state) information clearing-house was established to monitor the violence of hate groups. 2.6.3 Germany and the Media Construction of Hate Crime

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The federal government report which summarizes the “Campaign Against Violence and Hostility Against Foreigners” places a considerable amount of the blame of the current social climate of hostility towards “foreigners” on the media for creating an impression of broad public backing for hate group violence. The government points to two issues: 1) The consumption of violence as presented by the media, while perhaps not the cause of violence, can act as a contributing factor; 2) young people and groups who are the subject of media coverage feel encouraged by the amount of public attention their violent activities attract. The protective measures in the “Distribution of Publications Harmful to Young Persons Act” attempts to influence media to broadcast less violent programming on television which glorifies the violent actions of hate groups and second, to limit the exposure to videos, television and film programming, magazines, books and computer games with Nazi or racist content which glorify violence. 2.6.4 German Education Campaigns: The “Fairness and Understanding” Campaign against xenophobia and political extremism, is a national campaign which is sponsored by the federal and state interior ministries. The goal of the campaign targets young people with the aim of facilitating tolerant relations among all people living in Germany regardless of nationality. The “Families know no Boarders” campaign is organized by the Federal Ministry for Family Affairs and Senior Citizens. The “Integration of Foreign Families in the Federal Republic of Germany” is a campaign which promotes positive examples of how German and foreign families can live together. The focus thus far has been on race-based hatred -- leaving unprotected sexual orientation, sex, ability, and age. 2.7 THE NETHERLANDS The Netherlands lists concerns about increasing intolerance toward ethnic minorities and a growing tolerance towards the violence and hostile activities towards minority communities by hate groups. The Netherlands notes an increased surge of asylum seekers from the developing nations and the Eastern Europe in recent years. The recent surge in immigration has rekindled fear of the “unknown” and insecurity regarding social norms and economic expectations. The government notes that this fear has brought to light the value of diversity to Dutch society. 2.7.1 The Netherlands: Legislative Overview: The Constitution The principles of equality and freedom from discrimination are established in the first article of the Netherlands Constitution: “All persons in the Netherlands shall be treated equally in equal circumstance. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted.” Sexual orientation, age, and

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ability are categories absent from the constitution. 2.7.2 The Netherlands Criminal Code The Criminal Code was amended in 1971 to comply with the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. (United Nations). The focus has been on race-based discrimination and other groups have not been included. 2.7.3 The Netherlands Equal Treatment Act (1994) In addition to these prohibitions on discrimination in criminal law, the Dutch government legislated the principle of equality in civil law with the passage of the Equal Treatment Act in 1994. The Act provides the general rules regarding protection against discrimination on the grounds of religion, belief, political opinion, race, sex, sexual orientation, nationality, or civil status. The categories of age and ability are absent from the Equal Treatment Act. “The objective of the Act is to enable individuals to participate fully in society by removing obstacles formed by discriminatory treatment in a number of areas.” The Act also provides for the establishment of an Equal Treatment Commission which will be instilled with powers to investigate and determine cases of discrimination referred in the Equal Treatment Act or articles in the Civil Code. The Commission may bring legal action if it finds a determination of a violation of the Equal Treatment Act, The Equal Opportunities Act or the Civil Code. 2.7.4 Landelijk Bureau Racismebestrijding (National Bureau against Racism or LBR (1985). Formed by various ethnic minority organizations and the Netherlands Jurist Committee for Human Rights in response to the increase in racial discrimination and xenophobia. Funding is provided by the Department of Justice and the Dutch Parliament. Its aim is to combat all forms of racial discrimination through judicial means. 2.7.5 Netherlands Public Prosecutions Department (1985). Since 1985, the Public Prosecutions Department has monitored hate group activities and issued statistics regarding the number of prosecutions for discrimination on the grounds of race, faith or conviction in order to ensure that the Lower House of Parliament is properly informed about the subject. Discrimination on the grounds of sex or sexual orientation became criminally liable in 1992, however, the categories of age and ability are absent from the data collection mandate. 2.7.6 Media Issues in the Netherlands: The Anti-Discriminatie Overlag (ADO)

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The Anti-Discriminatie Overlag is a private organization which works to remedy the unfair depiction of minorities in the mass media. It does so by confronting the “arguments of the extreme right wing and to inform intermediaries and the public with the real facts.” Its role is educative, with no real power to prosecute. 2.8 SWEDEN It has been noted that there has been an increased tendency for younger people to increasingly hold racist and xenophobic attitudes. The Swedish government has not banned hate organizations because it believed that such a ban would be practically difficult to implement and force these organizations underground. Since 1900, attacks against refugee camps and individual immigrants have increased as have reports of clashes between Swedish and immigrant youth. This has raised fears of the spread of racist and xenophobic attitudes throughout Swedish society. 2.8.1 Swedish Legislation A Government Bill against ethnic discrimination at work was passed in the Riksdag in March 1994 which prohibits unfair discrimination on ethnic grounds. Sex, sexual orientation and age are absent from the Bill. 2.8.2 Enhanced Sentencing: The government has proposed adding to the Penal Code a provision creating special grounds for heavier sentencing in cases where a crime appears to be motivated by hatred of the victim’s race, colour, national or ethnic origin, creed or some similar circumstance. Sex, sexual orientation, ability, and age are not mentioned specifically. 2.8.3 Sweden: Proactive Policies and Programs: Parliamentary Commission A Parliamentary Commission was appointed in January 1993 to review the present immigrant, immigration and refugee policies in Sweden. The government is also setting up an anti-racism and anti-xenophobia Commission to analyze the causes of racism, xenophobia and intolerance and propose a comprehensive strategy for how these phenomena should be combated. 2.8.4 Sweden: Media Issues. Sweden does not have any specific policies or programs which address the problems associated with the coverage of hate groups or racism by the mass media. The Government considers the provision in the Criminal Code dealing with the instigation of racial hatred and in the Freedom of Expression Act satisfactory to address potential difficulties. Furthermore, public

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service radio and TV stations are legislated to broadcast “in an objective and impartial way.” Although local community radio stations are excluded from these requirements, they are subject to the regulation in the Criminal Code. One such case was “Radio Islam” which was using its freedom of religion and expression to broadcast hard-core antisemitic propaganda. The subsequent legal action resulted in the loss of the station’s license. 2.8.5 Sweden: Monitoring the Activities of Hate Groups There is no collection of hate crime statistics in Sweden. Police monitor possible criminal activities of hate groups, and when relevant, initiate legal proceedings. 2.9 UNITED KINGDOM 2.9.1 Formal Protection by the Constitution The United Kingdom does not have a formal, written constitution or a constitutionally entrenched Bill of Rights. Thus, the question of constitutional provisions regarding freedom of expression, and their interpretation and application, does not arise (Martin, 1999:641). 2.9.2 International Human Rights Standards in National Law The United Kingdom is a signatory to several treaties that contain provisions relevant for the protection and promotion of freedom of expression. These include: The International Convention on Civil and Political Rights, the International Convention on the Elimination of all forms of Racial Discrimination, The European Convention for the Protection of Human Rights and Fundamental Freedoms. 2.9.3 Human Rights Act 1998 The Human Rights Act 1998 gives effect to the European Convention. (See previous outline of the parameters of the U.N. Convention). 2.9.4 U.K. Race Relations Act 1976 The Race Relations Act of 1976 applies to England, Scotland and Wales. The Act defines two kinds of conduct which are considered racially discriminatory and are considered generally unlawful in a wide range of circumstances. The focus of the Race Relations Act is race not sex, sexual orientation, age or ability so that racialized, gendered sexual orientation, ageist, and ableist hate crime are not recognized. (a) “direct discrimination” means treating a person less favourably on grounds of colour, race,

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nationality, or ethnic or national origins; and “indirect discrimination” is treatment which may be described as “equal in a formal sense as between different racial groups, but discriminatory in its effect on one particular racial group.” (b) ‘discriminatory practices’ such as discriminatory advertisements, instructions or pressure to discriminate or aiding discrimination. Segregation on racial grounds is regarded as racial discrimination. 2.9.5 The U.K. Public Order Act 1986 Under Part III (ss. 17-29) of the Public Order Act 198635 it is a criminal offence to incite racial hatred. Sex, sexual orientation, age, and disability are not conceptualized under this paradigm. Persons who use or publish words or behaviour or written material that is threatening, abusive, or insulting where racial hatred is likely to be stirred up or the person intended to stir up racial hatred, is criminally liable. It is similarly an offense to publish or broadcast such material. Prosecutions can only be brought forward with the consent of the Attorney General. In 1998 the Holocaust Denial Bill received two readings and was discussed in Committee. The Bill was never revived, but under the Crime and Disorder Act, 1998, Aracially aggravated offences” were introduced. The Act defines “racial hatred” as hatred against a group of persons defined by reference to colour, race, nationality, (including citizenship) or ethnic or national origins. Although religion is not part of this definition, antisemitism would be regarded as an attack against an ethnic group. Hatred directed toward sex, sexual orientation, ability and age is not included in this definition. Insulting words or behaviour in an indecent or racial manner at designated football matches are prohibited under the Football (Offenses) Act 1991. 2.9.6 U.K.: Hate Crimes Legislation To date, there has been no development of hate crimes legislation which addresses racial harassment and violence. Hate crime data is obtained from the National Crime Victimization Survey and police. The British government’s position is that the establishment of such a criminal law would require prosecutors to establish a racial (or other group hatred) motivation, possibly making it increasingly difficult to obtain a conviction. In 1992, a private member’s “Racial Harassment Bill” was introduced in Parliament, but has not successfully been passed. 2.9.7 U.K.:Proactive Program and Policy Responses: Racial Attacks Group (R.A.G.) The Racial Attacks Group (RAG) was established in 1987 to look into the effectiveness of the various bodies which address discrimination and racially-motivated violence. Again, the focus is not on racialized attacks that may be compounded by age, sex, ability or sexual orientation.

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2.9.8 Commission for Racial Equality (CRE) The Commission for Racial Equality was established by the Race Relations Act 1976. The Commission has the power to investigate unlawful discriminatory practices and to issue nondiscrimination notices, requiring such practices to cease. The CRE attempted to raise awareness of the extent of the problems of racial discrimination in Britain by establishing the Uniting Britain for a just society campaign. 2.9.9 U.K.:Monitoring the Activities of Hate Groups: a statement of the” Guiding Principles Concerning Racial Attacks. There is no coordinated approach regarding the monitoring of the activities of hate groups or individuals. In 1985 a statement of “Guiding Principles Concerning Racial Attacks” was issued by the Association of Chiefs of Police Officers (ACTO) which recognized the need to deal and respond to these acts promptly and the need to monitor incidents. The operational definition of racially motivated incidents: a) any incident in which it appears to the reporting or investigating officer that the complaint involves an element of racial motivation; or b) any incident which includes an allegation of racial motivation made by any person. The focus is on race -- not racialized sex, sexual orientation, age or ability hate-motivated crimes. Police statistics from 1988 onward indicate that there has been an increase in the reports of racially-motivated violence in Great Britain. The total incidents in England, Scotland, and Wales totalled 7,195 in 1990. This is up from 5, 431 in 1989 and 5,682 in 1988. However, it is not indicated whether this is a reflection of an actual increase in hate-motivated violence or in the tendency to report such incidents or categorize incidents as motivated by hate. 2.9.10 U.K.: Media Issues; Public Order Act; Code of Practice; 1990 Broadcasting Act At present there is no legislation or governmental monitoring body which would help ensure the fair portrayal of diversity in society by the media in Britain, although the Public Order Act does have provisions which restrict the publishing of material that could incite racial hatred (the interpretation of this provision can be seen to be quite broad). 2.9.11 U.K.: Press Complaints Commission The print media in Britain is self-regulated and is overseen by the Press Complaints Commission which ensures that the print media follow a Code of Practice drawn up by the newspaper and magazine editors. The Code of Practice covers such matters as inaccuracy, harassment, intrusion into privacy and discrimination by the press. The Code says that the press should avoid Aprejudicial or pejorative reference: to a person’s race, colour, religion, and that it

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should avoid publishing such details unless they are directly relevant to the story.” Gender, sexual orientation, ability and age are excluded from the focus of the Press Complaints Commission. 2.9.12 U.K.: 1990 Broadcasting Act With regards to the broadcasting media, under the 1990 Broadcasting Act, television and radio stations are prohibited from broadcasting programs which offend against good taste and decency or is likely to encourage or incite crime or lead to disorder or be offensive to public feeling. The BBC has its own guidelines for its programming to avoid unnecessary reference to racial or racial origin, to ensure objectivity and accuracy in the coverage of racial questions and to beware of stereotyped images. Again, as in the above provisions, the focus is on race B gender, sexual orientation, ability and age are excluded. 2.10 REPUBLIC OF SOUTH AFRICA 2.10.1 Republic of South Africa: Bill of Rights Under the Constitution of the Republic of South Africa, 1996 the Bill of Rights outlines Freedom of Expression protecting categories such as race, ethnicity, gender or religion. While gender is included under the Bill of Rights sexual orientation, ability, and age are excluded. Under s.16(1) everyone has the right to freedom of expression, which includes - (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and, (d) academic freedom and freedom of scientific research. (2) The right in subsection (1) does not extend to-- (a) propaganda for war; (b) incitement of imminent violence; or, (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. 2.11 Summary An overview of international domestic legislation and statutes reveals that sex, sexual orientation, age, and ability are largely absent from the domestic legislation to counter hatred. The focus -- as in the U.N. statutes -- is to eradicate racial tensions. While the Netherlands acknowledges sexual orientation hate-motivated activity and South Africa acknowledges gender and sexual orientation hate-motivated activity, the United States has done so reluctantly. The trends in protective legislation reveal that change, in terms of inclusion and recognition of the multiple and sometimes triple oppressions, evolves slowly.

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3.0 RACIST HATE PROPAGANDA IN CANADA The aim of this section is to outline prima facie evidence of hate propaganda against sex, age, mental or physical disability and sexual orientation. Included in this objective is investigating the impact of such hate propaganda, and to use these exploratory findings as a beginning to outlining methods of researching hate propaganda experienced by the expanded groups. The following overview will provide information obtained from interviews with persons working in non-governmental organizations. 3.1 Racist Hate Propaganda: Conceptualizing Race and Racism: Canada’s response to racist speech stems from a recognition of the structural reality of racism as well as international conventions. Since 1970, the three Canadian cases by which a conviction has been obtained under the Criminal Code involved racist hate propaganda. Notably absent are cases challenging hate propaganda against First Nations peoples, despite the proliferation of such material. The Keegstra, Ross, Zundel,

Andrews, Taylor, Canadian Liberty Net, McAleer, and North Shore Free Press, cases

symbolize Canada’s legal and human rights response to racist, sexist and homophobic hate propaganda. The way in which Canadian legalists have conceptualized racist hate and responded to it has been influenced by the international law of human rights. Racist speech is universally condemned through Article 4 of the United Nations Convention on the Elimination of Racism (Matsuda, 1995:102). The preamble to the convention states explicitly that “any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable socially unjust and dangerous, and that there is no justification for racial discrimination” (International Convention on the Elimination of All Forms of Racial Discrimination, 1966:195). It also claims that the community of nations has made a

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commitment, to eliminate racism. It has recognized that racist hate propaganda is illegitimate and properly subject to control under the international law of human rights. While all nation states agree through Article 4 to control racist propaganda, what is not clear is the limits of such control. For example, the United States has a very different approach to freedom of expression and the limitation of hate propaganda compared to the approach taken in Canada. Article 4 acknowledges the need for “due regard” for rights protected by the Universal Declaration and by Article 5 of the convention – including the rights of freedom of speech, association and conscience. Under Article 4 the international community has chosen to outlaw racist hate propaganda:

State parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one

colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and

positive measures designed to eradicate all incitement to, or acts of, such

discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this convention, inter alia36

Under this treaty, states are required to outlaw racial hate messages. The concept of prohibiting dissemination of ideas of racial superiority is not easily reconciled with American concepts of freedom of speech. However, the Convention recognizes this conflict by acknowledging the need for ‘due regard’ for rights protected by the Universal Declaration, including the rights of freedom of speech, association, and conscience. The Convention is not the only expression of the emerging international view. The

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need to limit racial hate messages is implicit in basic human rights documents such as the United Nations Charter and the Universal Declaration of Human Rights. Both documents recognize the primacy of the right to equality and freedom from racism.37 Other human rights treaties, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms38 and the Inter-American Declaration of the Rights and Duties of Man39 also recognize this primacy. Finally, the existing domestic law of several nations committed to basic human rights principles -- including states that embrace the Western notion of freedom of expression -- have outlawed certain forms of racist speech.40 The United Kingdom, for example, under the Race Relations Act, has criminalized incitement to discrimination and incitement to racial hatred. The act criminalizes the publication or distribution of “threatening, abusive, or insulting written matter or use of such language in a public place” (Matsuda, 1995:96). What the English and Canadian acts and the U.N. Convention have in common is they specify a particularly egregious form of expression for criminalization. Ideas about differences between races are not banned. The definitive elements are a connection to discrimination or violence and messages of inferiority, hatred, or persecution (Matsuda, 1995:97). The entire spectrum of expression which could be called racist is therefore not prohibited so that a belief in the intellectual differences between races would not be subject to sanctions, unless it were coupled with an element of hatred or persecution. “What the emerging global standard prohibits is the kind of expression that most interferes with the rights of minority group members to participate equally in society without being subjected to virulent attacks on their basic worth as human beings” (Matsuda, 1995:97). 3.1.1 The Definition of Racist Speech Matsuda defines racist hate messages from the victim’s understanding of it. She asserts that Western culture has attempted to rationalize hate by separating violence from

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bias, thus: “the attempt to split bias from violence has been this society’s most enduring rationalization”41 (Matsuda, 1995:89). In framing hate speech in this way she suggests that racism is structured so that the practice of racism “comprises the ideology of racial supremacy and the mechanisms for keeping selected victim categories in inferior, subordinated positions”42 (Matsuda, 1995:89). According to Matsuda the implements of racism include (Kitano, 1974:176):43 ·

Violence and genocide.

·

Racial hate messages, disparagement, and threats.

·

Overt disparate treatment.

·

Covert disparate treatment and sanitized racist comments. Examples of racist violence are all to easily found. In addition to physical violence,

there is the violence of the word. Matsuda notes that “racial hate messages, threats, slurs, epithets, and disparagement all hit the gut of those in the target group.” (Matsuda, 1995:90). While violence and hate propaganda are distasteful to elites, other forms of racism enshrined in law, are not. From the victim’s perspective, all of these implements inflict wounds, which are neither random or isolated. Finally, “violence is a necessary and inevitable part of the structure of racism. It is the final solution ... if we desire to eradicate racism, we cannot ignore the interconnection of all is displayed by different individuals and groups -- for example, Nazi and neo-Nazi groups a the tools of racism” (Matsuda, 1995:90). 3.1.2 Defining Hate and Hate Propaganda While the words ‘hate’ and ‘hate propaganda’ are used to describe negative expression, the terms are often not clearly defined. In Canada (Human Rights

Commission) v. Taylor44 under analysis of the relevance of section 13(1) to section 1 of

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the Charter, Jerome A.C.J. of the Federal Court, Trial Division argued that it is important to define the words “hatred” and “contempt” (Canadian Human Rights Reporter, 1997:456). He saw no conflict between providing a meaningful interpretation of s. 13(1) of the CHRA and protecting the s. 2(b) freedom of expression as long as these words were defined in relation to Parliament’s objective to “protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression.” In the most recent decision involving s. 13(1) it was noted at p. C/6469, that, in defining ‘hatred’ the Tribunal applied the definition in the Oxford English Dictionary (1971:28) which reads “active dislike, detestation, enmity, ill-will, malevolence.” The definition of contempt the Tribunal drew on in Taylor was characterized by: “the condition of being condemned or despised; dishonour or disgrace.” Jerome A.C.J. notes there is no definition of “hated” or “contempt” within the CHRA so that reliance on common understandings of the meanings of these terms is necessary. He recognizes that while the terms change in particular factual contexts and with different individuals, there is nevertheless an important ‘core of meaning’ in both. For example, with ‘hatred’ the focus is on a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one ‘hates’ another means in effect that one finds no redeeming qualities in the latter.” Further, it is a term which does not necessarily involve the mental process of ‘looking down’ on another or others. It is possible to ‘hate’ someone who one feels is superior to one in intelligence, wealth or power. Jerome A.C.J. then notes that none of the dictionary definitions of ‘hatred’ give clues to the motivation for ill will, however, ‘contempt’ “is by contrast a term which suggests a mental process of ‘looking down’ upon or treating as inferior the object of one’s feelings ... This is captured by the dictionary definition relied on in Taylor ... in the use of the terms ‘despised’, ‘dishonour’ or ‘disgrace.”(Canadian Human Rights Reporter, 1997:D.456) While the Canadian Oxford Dictionary (1998:645)45 does not define hate

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propaganda, it does define hate, hateful, hate mail, and hate monger. Hate is “to feel hatred or intense dislike ... motivated by sexual, racial, or other forms of intolerance.” A hate-monger is “a person who promotes hatred and intolerance against an identifiable group” while hate mail is: “letters sent (usually anonymously) in which the sender expresses hostility towards the recipient.” To be hateful is: “arousing hatred; odious, and full of hatred.” The Hate and Bias Activity Research and Data Collection Working Group (2000) recommend that in order to collect and use data on hate-motivated crime (includes hate crime and hate propaganda) it must be recognized that the definition used by community groups differs from the one proposed by the police and the Canadian Criminal Code. The definition of “hate’ approved by the Canadian Associations of Chiefs of Police (CACP) to collect data on hate crimes, reads:

‘a crime motivated by hate, not vulnerability’ which is to include all the

groups outlined in section 718.2 of the Criminal Code, including an ‘other’

category so as to not miss new, emerging types of hate crime. The Criminal Code (Section 718.2) outlines an aggravating factor for an offence where

there is “evidence that the offence was motivated by bias, prejudice or hate

based on race, national or ethnic origin, language, colour, religion, sex, age,

mental or physical disability, sexual orientation or any other similar factor” (A Call for Action, 2000:25).46

To specify the type of activity that should be documented, the working group referred to the following definition of a hate or bias incident:

A hate or bias incident is an occurrence that, while not criminal in nature, does have an effect of discriminating, stereotyping, excluding, and/or

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harassing, a person based on that person’s race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual

orientation, or any other similar factor. Presence or activity of hate groups is included in this category (A Call For Action, 2000:26).47

The Legislation Working Group (A Call For Action, 2000:7) recommended in the interest of clarifying what constitutes legally actionable activity or expression the following definition be embraced:

The advocacy or promotion of genocide as well as any matter that promotes or exposes or is likely to expose to hatred or contempt, or that otherwise disparages, excludes, dehumanizes, devalues, or ridicules, or indicates

discrimination or an intention to discriminate, against an identifiable group or members of the group on the basis of race, national or ethnic origin,

language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor, is legally actionable.48

The New Media Working Group (2000) also embraced the above definition recognizing that Canada already has a variety of legal provisions to counter hate and bias activity. “These are found in the Criminal Code, the Canadian Human Rights Act, provincial human rights codes, Canadian Radio-television Telecommunications Commission (CRTC) regulations and in the Broadcast Act, as well as interpretive guidelines of Canada Customs for the enforcement of sections of the Customs Tariff” (A Call for Action, 2000:13). Based on those provisions, the group arrived at a comprehensive and progressive definition of hate and bias activity (2000:13). The NMWG states it is also important to “consider those expressions and activities, which, while not legally actionable, do violate human dignity and respect, and offend good taste as determined by community standards.”49

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3.1.3 Conceptualizing the ‘Others’ When thinking of conceptualizing hate propaganda directed toward women, gays, lesbians, bisexuals, youth, elderly, differently-abled persons under the rubric of prohibited groups in need of protection, we must ask what are the differences within and between the different categories of oppression -- between, for instance, sexual orientation and race, sex and race, ability and race, age and race? The consideration of constitutional rights and balancing them, may differ in the context of sexual orientation. In order to conceptualize protections for lesbians and gays under the law, one must first consider the history of their exclusion from the equality doctrines of our country. Canada decriminalized homosexuality and the Diagnostic Statistical Manual (DSM) removed homosexuality as a psychiatric illness. Various constitutional challenges have forged a place for sexual orientation equality rights under Canada’s Charter, and sexual orientation was added as a prohibited category in need of protection within the Canadian Human Rights Act. Formal recognition of lesbian and gay equality guarantees have not been won easily in Canada, and in a number of cases, the Supreme Court has forced change on reluctant governments. Women’s specificity makes their experience of oppression significantly different from that of men from their own class and racial and ethnic group. As a group, women experience structural inequality in terms of socio-economic status and legal status. Women’s reproductive rights, their right to protection from violence, their right to divorce, and their right to vote are fairly recent developments in Canada. While recognition of women as ‘persons’ has been legally formalized, sexist depictions of women exist as accepted parts of the cultural terrain. What is the impact of these sexist propaganda on women and lesbian women from diverse cultural backgrounds? How does sexism and lesbophobia interconnect to reproduce harm to racialized women who are also lesbian? How might interconnections between sexist, racist, homophobic, ableist, ageist, imagery impact on women’s communities? Little is known about the impact of these forms of hate propaganda and more research needs to be conducted on this issue. Across these examples of inequalities lie commonalities across oppressions. In view of their differences, constitutional determinations for women, gays and lesbians, the disabled, and the aged, may be distinct from those made in racial contexts. Many of the rights gained by women, sexual minorities, disabled persons and youth and aged are based on our equality guarantees that were first formed to protect racial and ethnic minorities. If each oppression takes its own distinct form and thus each form must seek its own solutions -- if what works for one may not necessarily work for the other -- what does this mean for a rights based approach to inclusion under the Criminal Code? Broad based inclusion -- the add and stir method -- seems highly problematic in light of the conceptual framework already constructed and the standard of proof applied. But, what if this framework does not work? Is the fact that only three cases have been successfully prosecuted an indication that the present model needs to be altered? How will

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“adding in sex, age, mental or physical disability and sexual orientation as identifiable groups in need of protection improve protections for these groups? Will inclusion be only symbolic? While the typical hate crime is perceived to be of a violent nature perpetrated by individuals connected to Nazi and neo-Nazi groups and white supremacists, a more insidious form of hatred exists in the form of hate propaganda (Kinsella, 1994; Martin, 1992; Sher, 1983; Sunahara, 1981; Abella & Trooper, 1982; Barrett, 1987; Betcherman, 1975; Bolaria, Singh, Li, 1985; Frideres, 1976). Hate messages take a variety of forms including flaming crosses, heckling at memorial services, music, and desecration of synagogues, mosques, or temples (Commission for Racial Equality, 1999). In the winter of 1992, a lone protestor at an Ontario university disrupted a Kristallnacht (night of broken glass) ceremony in memory of the 1938 attack by Nazi soldiers on Jewish homes and businesses (Gillis, 1993). On a May 1993 weekend in London, Ontario, 40 members of the Ku Klux Klan -- men, women, and children wearing white robes and conical hats -- attended a cross-burning ceremony to celebrate the white race on a private property (Swainson & Small, 1993). In 1994, a skinhead in Toronto was sentenced to four years in prison for beating a Tamil immigrant into paralysis. Just before the attack, the man had attended a racist rock concert where he was inspired by such lyrics as “These boots are made for stompin,” and “one of these days these boots are going to stomp all over Jews,” and “Let’s go coon huntin’ tonight” (Prutschi, 1995). Ernst Zundel, a Toronto publisher, has spread the message throughout Canada and many parts of the world that the Holocaust is one huge politicofinancial swindle engineered by the Jews to extract money for themselves and Israel. James Keegstra, a former teacher at a high school in the small rural community of Eckville, Alberta, for close to fourteen years, taught his social studies classes that the Talmud was a blueprint for evil and the Jews were at the root of most world calamities and upheavals. Malcolm Ross of Moncton, New Brunswick, also a teacher, has written a number of books and pamphlets warning against a world Jewish conspiracy to undermine Western Christian civilization and disputing established accounts of the Holocaust. John Ross Taylor, a Nazi since the 1930s, has operated a dial-a-racist telephone message service in Toronto. Also in Toronto Donald Andrews, through his publication The Nationalist Report, has pursued an antisemitic and white supremacist agenda (Prutschi, 1990:37-39). Hate messages and literature, and revisionism of historical realities are also communicated through the use of computers, fax machines, telephone hotlines, and the Internet (Gillis, 1993; Kazarian, 1997; Bailey, 1998; Sun Media Newspapers, 1998). In 1999, and again in 2001, the Reverend Fred Phelps visited Canada to protest gay rights. Phelp’s Westboro Church operates a website “godhatesfags’ in the United States. While calls have been made to prosecute those who are distributing hate literature -- for example, white supremacist and Holocaust-denial material -- under the Criminal Code, “[i]nvestigators have been hamstrung as they await case law to set out rules on policing the World Wide Web” (Bailey, 1998:A9). The Canadian Human Rights Tribunal in Toronto has as yet not ruled on charges that a San-Diego-based Web site bearing the name of Canadian Ernst Zundel promotes hatred against Jews.

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In the first case of its kind a Merritt B.C. man was arrested and charged with promoting hate on his computer. In November 2001 a Merritt B.C. man, William Patrick Nicholson, was charged with communicating statements, other than in private conversation, and thereby willfully promoting hatred against an identifiable group. Police seized a computer from the residence, and it is in this computer Nicholson allegedly promoted hatred. “This involves the internet, so it is completely new.” Upon seizing Nicholson’s computer, investigators found e-mail and chat room messages about the KKK as well as information from the web site Nicholson may have developed (Johnson, 2001). Those who attempt to track hate crimes argue that hate-motivated activity is on the rise, and argue that hateful speech and symbols inspire fear in communities. B’nai Brith Canada’s League for Human Rights 1999 Audit of Antisemitic Incidents (2001) states 80 incidents of antisemitic hate propaganda were reported in 1999 in Canada. Six of these incidents were reports of materials being distributed by identified white supremacist organizations such as the Heritage Front and Aryan Nations. However, they point out that much of the hate mail and other hate propaganda reported contains concepts that can be easily found on hate sites on the Internet or in other published white supremacist materials (B’nai Brith Canada League for Human Rights, 2001). The Audit reports that a common way for Holocaust deniers to distribute their message is by e-mail. The Simon Wisenthal Centre claims that there are now more than 2000 hate sites on the Internet, up from 1400 in 1999, which was a 100% increase from the year before. And the number of sites is growing and their sophistication is increasing (Combatting Hate on the Internet, 2001:4) A number of targeted e-mails sent to vocal or prominent members of the Jewish community chastised them for, as one e-mail sent to a president of a B’nai Brith Lodge stated, “spreading the lies of the so called ‘holocaust.’” The Audit reports that this one e-mail went on to say “we (the enlightened) have seen through this money extortion hoax a long time back” (B’nai Brith Canada League for Human Rights, 2001:1). 3.1.4. Effects of Racist Hate Propaganda As early as 1966, the serious harm caused by messages of hatred was identified by the Special Committee on Hate Propaganda in Canada (The Cohen Committee 1966). The Cohen Committee noted that individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including: · · ·

a loss of self esteem; feelings of anger and outrage and, strong pressure to renounce cultural differences that mark them as distinct.

The Committee notes this intensely painful reaction undoubtedly detracts from an individual’s ability to, in the words of s. 2 of the Canadian Human Rights Act, “make for himself or herself

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the life that he or she is able and wishes to have. As well, the Committee observed that hate propaganda can operate to convince listeners, even if subtly, that members of certain racial or religious groups are inferior. The result may be an increase in acts of discrimination, including the denial of equal opportunity in the provision of goods, services and facilities, and even incidents of violence. Since the release of the Report of the Special Committee on Hate Propaganda in Canada, numerous other study groups have echoed the Cohen Committee’s conclusion that hate propaganda presents a serious threat to society. Affirmation of the Special Committee’s findings may be found in the 1981 Report Arising Out of the Activities of the Ku Klux Klan in British Columbia by John D. McAlpine, the 1984 report of the Special Committee on Participation of Visible Minorities in Canadian Society, entitled Equality Now!, the Canadian Bar Association’s Report of the Special Committee on Racial and Religious Hatred, also released in 1984, and the 1986 Working Paper 50 of the Law Report Commission of Canada, entitled Hate Propaganda. Based on the research to date, the Canadian Human Rights Commission note, “[i]t can thus be concluded that messages of hate propaganda undermine the dignity and self-worth of target group members and, more generally, contribute to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open mindedness that must flourish in a multicultural society which is committed to the ideal of equality (Canadian Human Rights Reporter, 1997). While the existing reports focus on the harm directed toward racial and religious groups B particular attention has not been given to the effects of sexist, heterosexist, homophobic, ableist and ageist hate propaganda. All countries which subscribe to the U.N. policies on the elimination of racist discrimination have focused on the elimination of practices which promote racial divisions along ethnic and colour lines. Marginalized are divisions constituted by class, sex, sexuality, age and ability. Despite attempts to situate crimes based on hatred of gender at the forefront, there remains resistance to acknowleding the dual and sometimes triple impact of gendered, sexualized, and racialized hate propaganda. Resistance to acknowledging gender social divisions also impacts on a societies failure to acknowledge how gender oppression feeds into the hatred of any form of sexual expression that stands outside the well controlled patriarchal heterosexual family unit. What is known about the immediate effect of vicious racist acts on potential victims and communities (Delgado, 2000; Van Dijk, 1988; Van Dijk, 1992; Nourbese, 1992)? Matsuda (1993; 1989) outlines the specific negative effects of racist hate messages which she believes are real and immediate for the victim. According to Kitano, (1974) victims of vicious hate propaganda experience physiological and emotional distress ranging from fear in the gut, to rapid pulse rate and difficulty in breathing, nightmares, addiction, and, in cases of repeated subjection to hate messages, psychosis and suicide (Kitano, 1974).

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Williams (1987) has called the blow of racist messages “spirit murder’ in recognition of the psychic destruction of victims’ experience. Second, victims are restricted in their personal freedom. For example, in order to avoid receiving hate messages, victims have had to leave their jobs, leave their homes, avoid certain public places, and modify their behaviour. As a result, the recipient of hate messages struggles with inner turmoil. One response is to reject their own identity as a victim group member in order to pass as a member of the elite (Kitano, 1974:113114). Often the price of disassociating from one’s own group is often sanity itself (Grier & Cobbs, 1968; Barnard, 1996). Third, hate propaganda has an impact on one’s self-esteem and sense of personal safety. Matsuda explains, “however irrational racist speech may be, it hits right at the emotional place where we feel the most pain” (Matsuda, 1995:91). Fourth, the effect on dominant group members is also destructive. The process of dissociation works for them as well, for although they may object to hate propaganda, they may feel ambivalent relief that they are not black and therefore drawn into an unwilling complacency. Hate propaganda also divides groups against each other, making it harder to achieve a sense of common humanity. Fifth, the psychological impact may be insidious: “Research on the psychosocial analysis of racism suggests a related effect of racist hate propaganda: at some level, no matter how much both victims and well-meaning dominant group members resist it, racial inferiority is planted in our subconscious as an idea that may hold some truth” (Matsuda, 1995:91). For these reasons we internalize messages such as, “those people’ are “lazy, dirty, sexualized, money-grabbing, dishonest,” we are told. While we may reject the idea, we often think of these stereotypes when interacting with “others.” While we may attempt to stifle it, and reject it as wrong, negative attitudes interfere with our perception and interaction (Jordan, 1968; Kovel, 1970). For the victim, the recognition of the message of inferiority is coupled with the absorption of the message, with resulting degradation and dispiriting. Matsuda notes that psychologists and sociologists have done much to document the effects of racist messages on both victims and group members (Kitano 1974). Writers of colour have given graphic portrayals of what life is like for victims of racist propaganda (Long & Collier 1985). Accordingly, “from the victim’s perspective racist hate messages cause real damage” (Matsuda 1995:92; Freeman 1982:96). 3.1.5. Racist Hate Propaganda on the Internet In preparation for the World Conference Against Racism by the Council of Europe (WCAR) recommendations for combatting hate on the internet were made by those attending All Different: All Equal: From Principle to Practice, a conference held in Strasbourg, France, October 11-13, 2000 (Combatting Hate on the Internet: Recommendations for Action, 2001). The group reports that a number of hate sites have emerged across Canada, in both small towns and in large urban centres. Fairview Technology Centre, Limited is a case in point. Fairview Technology was an Internet Service Provider (ISP) based in the small rural town of Oliver, British Columbia. The site was owned and operated by Bernard Klatt. The site provided access to most of the hate sites world wide as well as to local businesses, government agencies and

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schools. Fairview Technology provided links to hate sites on its home page just under school resources, making it extremely easy for the very young to inadvertently access racist sites like the Toronto based Heritage Front, World Wide Church of the Creator, and international skinhead sites like the extremely violent Norther Hammer Skins and the French Charlemagne Skins. The Fairview Technology web site gained international notoriety when Sol Litman of the Wisenthal Centre labelled the town where it was based the “hate capital of Canada.” Scrutiny of the site resulted in French and British authorities arresting members of the Charlemagne Skins for posting death threats against Jews. The final blow to the Fairview Technology site came when British Columbia Telephone, the local Internet access provider, threatened to impose restrictions on the service following well publicized protests by the League for Human Rights of B’nai Brith, Canada and the Canadian Anti-Racism Education and Research Society. Faced with the threat and, in some cases, the actual withdrawal of service by ISPs and/or access service providers, those operating racist websites in Canada, like Mike Lemire, now head of the Toronto-based Heritage Front, moved the websites to the United States. Paul Fromm, a former school teacher who has a number of sites, soon followed suit. Ernst Zundel, one of the top exporters of hate to Germany and worldwide, is also alleged to own and operate a website in the United States. A Canadian Human Rights Tribunal is seeking to determine if, in fact, the “Zundelsite” is indeed Zundel’s and whether Zundel violated the Canadian Human Rights Act by material on the website. The authors report: The impact of hate propaganda coupled with racist music and provocative pictures and graphics, creates an insidious inticement that clearly threatens public safety and undermines democratic institutions. A broad range of human rights and anti-racist groups have demanded that existing laws against incitement to hate be applied to the Internet. Where these laws need revision (in light of issues concerning jurisdiction, digital storage, problems of anonymity of users, liability of ISPs and access providers), they should be immediately amended (2001:5). Provincial Attorneys General have proposed specific amendments to the Criminal Code to address hate on the Net; and the Canadian Human Rights Act Review Panel (2000) has proposed revisions to the Canadian Human Rights Act to ensure that hate on the Net can be addressed through the Canadian Human Rights Act. Justice Minister Anne McLellan, has also recognized the need to create laws to govern the Net and has proposed a new law to target pedophiles who use the Internet to lure children. As Minister McLellan has stated: “We [the Government of Canada] can move on that [creating a specific law to prevent pedophiles from preying on children on the Internet] fairly quickly” (The Province: December 3, 2000:A41). There is also a broad coalition of Western European nations that is seeking to develop an international code of conduct for the Internet and to establish international cooperation for combatting hate on the Net (European Council: 2000). The Netherlands, in particular, had

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proposed sweeping recommendations to be presented at the WCAR in August 2001 to stop hate on the Net (European Council, 2000). In November, 2001 (Meller, 2001; Reuters, November 8, 2001) the 43-nation Council of Europe tried to ban racist and hate speech from the internet by adding a protocol, or side-agreement, to its cybercrime convention, which was stamped for ratification. The main text of the convention defines as cybercrimes activities like online child pornography, online fraud and electronic vandalism or hacking, and it sets rules for signatory nations on how the Internet should be policed. “The protocol would add racist Web page content and hate speech over computer networks to the list of cybercrimes, the Council of Europe, a club of European democracies that aims to protect human rights, said” (Meller, 2001). However, the United States, which is a signatory to the convention, resisted European moves to include the issue of racist Web sites in the main agreement, because doing so would conflict with the freespeech protections of the First Amendment. A case which recently took place in France shows the difficulty and confusion over the issue of who exactly is responsible for limiting online hate. The Association of Internet Service Providers was asked to block access to an American portal that was accused of carrying racist websites and other offensive material. Based on a French law that bars the display or sale of racist material, seven groups had filed a lawsuit seeking to make the portal, identified in court as “front14.org” inaccessible from France. The groups say the portal is used to spread Holocaust denial, racism and anti-Semitism on the Internet. The judge refused to order Internet service providers in France to block access to an American portal that is accused of carrying racist websites and other offensive material. The Judge, Jean-Jacques Gomez, “said it would be up to the ISPs to ‘freely determine’ what measures they would take in order to resolve the complaints surrounding the portal” (Star Publications (Malaysia), 2001). Marie-Helene Tonnelier, lawyer for the Association of Internet Service Providers hailed the judge’s decision. “‘The judge recognizes that we do not have the obligation to ban access to a site. This is a victory in the sense that he admitted that providers have not done anything wrong,’” she said” (Star Publications (Malaysia, 2001). Interestingly, Gomez was the same French judge who, in a landmark ruling last year that affected legally uncharted Internet territory, ordered the US-based portal Yahoo! to block websurfers in France from an auction where Nazi Memorabilia is sold (Star Publications (Malaysia, 2001). Later this year, a tribunal of the Canadian Human Rights Commission will rule on a precedent-setting complaint launched in 1997 by Sabina Citron, in which Mr. Zundel is accused of being the chief architect of a U.S.-based Web site depicting Jews as corrupt liars who systematically distort history (Globe and Mail, 2001:14). While some would like to see access to the “Zundelsite” blocked, a landmark ruling two years ago decided that the Canadian Radiotelevision and Telecommunications Commission could not and should not regulate cyberspace. Criminal sanctions already outlaw dissemination of the Net’s worst material, whether it be child pornography or calls for violence and advocating genocide. In response, lawyers for the human rights commission, backed by several prominent Jewish organizations are seeking a cease-and-

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desist court order. Despite the fact that it is believed that the web site is based in California, and that Mr. Zundel possibly now lives in Tennessee, if the court order is obtained and the site stays up, its operators could be charged with contempt of court and possibly imprisoned if found in Canada. The problem for those who wish to block the Web site is that a contempt-of-court charge could only be enforced if Mr. Zundel returned to Canada. This case is important because it is the first time that a Canadian human rights body has waded into the topic of hate on the internet, despite that the Net is the source of much hate and lies. Some argue that Mr. Zundel’s website should be left alone because to intervene would set us upon a slippery slope whereupon others may become targets. B’nai Brith Canada support amendments to the Human Rights Code that will specifically deal with new technology like the Internet (B’nai Brith Canada League for Human Rights, 2001:1). Cases such as this exemplify the two divides in Canada -- those between freedom of speech advocates and human rights advocates who argue that the state has a role in regulating harmful actions and expression. The role that the internet plays in disseminating hate has become a focus for Canadian researchers (Mock, 2001; B’nai Brith Canada, 2001; Goldschmid, 2001). Kallen (1997) thinks that hate on the internet is harmful. Kallen’s (1997) research of hate on the internet provides empirical evidence to support her thesis that, by “manipulating deeply held validation myths to provide “evidence’ for their arguments, high tech hate mongers incite virulent hatred of and harmful action toward targetted minorities. Kallen concludes that by doing so, high tech hatemongering violates minority members’ human rights to dignity and equality by denying their fundamental freedom from group defamation and harassment. B’nai Brith’s League for Human Rights in Canada monitors antisemitic and racist hate on the internet and reports findings in its annual audit (Mock, 2000). As a follow-up to the 1997 symposium, B’nai Brith Canada, through its institute for International Affairs and League for Human Rights, hosted the Second International Symposium on Hate on the Internet in March 1999. The symposium drew on the latest expertise of international delegates in the areas of law, legislation, technology, education, human rights and community action. Approximately 150 delegates came from such countries as France, Sweden, Germany, Israel, England, Australia, Canada, and the United States to follow up on the previous 1997 recommendations and to coordinate methods for dealing with the global problem of Hate on the Internet (Mock, 2001:3). Participants recommended that the Criminal Code be amended to make the downloading and possession of hate propaganda with intent to promote hatred a criminal offence (Rosen, 2000, Eatwell, 1996; Gosnell, 1998; Racicot, 1997; Samson, June 1995; Trudel, 1997). In April 1998, an internet service provider in Oliver, British Columbia, who was alleged to be hosting websites promoting hate, ceased production after being cited for contempt of court (Taylor 1995:163). Goldschmid (2001:68) reports that in 1993, the Canadian Human Rights Commission “dealt with cases involving the Heritage Front, the Canadian Liberty Net, the Manitoba Knights of the Ku Klux Klan and the National Knights Network, and was quite successful in stopping the playing

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of recorded hate messages.” These messages attacked recent immigrants, Jews, lesbians and gay men. When some of those responsible refused to comply with a court order, they were sent to jail. The use of Section 13 to combat hate lines made a significant impact in Toronto resulting in most of the hate lines being shut down (Farber, 89). In 2001, a British Columbia man filed a complaint with the B.C. Human Rights Commission alleging that a Canadian internet site promotes homophobic hate propaganda. This case is still under review (Schnell v. Machiavelli and Associates Emprize Inc and John Micka, 2001). In September 2001 a tribunal heard the complaint of Mark Schnell who claims that Machieavelli and Associates Emprize Inc. and John Micka discriminated against him by communicating messages on a website that are likely to expose persons to hatred and contempt based on their sexual orientation. The website conveyed the message that homosexuals are paedophiles. In turn Micka is attempting to sue his accusers. In November, 2001 Micka filed a lawsuit against Michelle Falardeau-Ramsay, Chief Commissioner of the CHRC, a number of commission lawyers and Mark Schnell, the Vancouver man who initiated the complaint. Micka complains the defendants conspired to shut down what he calls his ‘anti-paedophilia website’ by manipulating Schnell to lodge a human rights complaint. Micka also claims that “Schnell’s actions caused false stories to be published ... which were intended to incite hatred against the plaintiffs (Micka and Machiavelli and Associates Emprize, Inc.” (Tanner, 2001:28). This is the second complaint alleging hate messages on the Internet being examined by a tribunal. The first one dealt with a website run by Ernst Zundel, on which a ruling is awaited. Robert Goldschmid’s (2001) report on internet hate written for the Canadian Jewish Congress analyses hate, hate speech and freedom of speech and provides an excellent overview of domestic and international responses to online hate propaganda (2001:100-124). The CJC asked Goldschmid to recommend a range of regulatory options to combat the spread of hate material. Based on his research, his primary recommendation for the Canadian government is to apply the Canadian Human Rights Act to the internet and to all future communications technologies. His recommendation to the international community is to initiate an international agreement or global standard to limit the worldwide spread of hate propaganda. He notes that the group libel standard is the best approach to take to encompass libel on an international perspective due to the fact that legal approaches differ across countries. The one approach that has had most success internationally is the group libel standard. Goldschmid explains: ...the difference between a group libel standard and traditional hate speech laws is that truth would be a defence to group libel. While such a group libel standard will not prohibit expressions of hatred that are technically true, the acceptance of such an international standard may serve to prevent the spread of hate and prejudice (Goldschmid, 2001). Goldschmid argues that hate speech must be regulated because counter-speech approaches

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supported by libertarians do not work: “Hate speech does not respond to counter-speech,” Goldschmid says, “You can’t counter with logic because hate speech is not factual – it’s psychological” (Goldschmid, 2001). 3.1.7. Criminal Law Amendment Act (2001) In 2001, the liberal government introduced an omnibus bill called the Criminal Law Amendment Act that if legislated, will make it illegal to e-mail child pornography, or to post it on a Web site based in Canada (MacKinnon, 2001:A1). The bill would also create a new Criminal Code offence that targets those who use the Internet to lure and exploit children under 14 for sexual purposes, and would allow child-sex “tourists” -- Canadians who travel abroad to have sex that would be prohibited under Canadian law – to be prosecuted here in Canada. The protections for children also include an all out attack on child pornography. While the “making, distribution and possession of child pornography are illegal under the Criminal Code, lawyers have found those definitions too vague for the Internet Age” (MacKinnon, 2001:A1). The new bill would expand the net, making it illegal to transmit or intentionally access a Web site featuring child pornography. Should the bill become law, it would also make it illegal to make child porn available on-line, and to export it, via computer or otherwise. The proposed law would also allow judges to order the deletion of child pornography on Web sites hosted in Canada, as well as any links leading to Web sites outside Canada that feature child porn. However, it would not have any effect on Web sites based in other countries (MacKinnon, 2001:A4). 3.1.8. International Responses to Racist Hate on the Internet The European Convention Against Racism and Intolerance (ECRI, 2000) states: “It is a myth that laws to prevent hate propaganda do not apply to the Internet.” The myth of an internet without faith or law should be dismissed at the outset. This myth of a legal vacuum which is supported by certain alarmist politicians, amplified by the press and exacerbated by unconsidered declarations of independence by “surfers” eager for absolute freedom, does not stand up to examination. Like any other means of communication, the Internet does not escape the law. As a general rule, the laws governing the right of communication are drafted in a technically neutral manner, which takes into account any dissemination of information irrespective of the medium; consequently, they are fully applicable to messages distributed on the Internet... the problem therefore lies not so much in the absence of adequate material rules as in obstacles to their application in the form of the characteristics peculiar to the networks of networks, namely its polycentric structure, its ubiquity and the cover of anonymity... [The] minimum standard for preventing hate on the Net], moreover, is imposed by the United Nations Convention on the Elimination Of All Forms of Racial Hatred,

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Article 4 of which requires the adoption, inter alia, of a provision penalizing the propagation of racial hatred outside a strictly private circle. These criminal provisions, which are drafted in general terms, are applicable, inter alia, to hateful expressions disseminated via the Internet” (ECRI: 2000:13). The report argues that as a signatory to the International Convention on the Elimination of all Forms of Racial Discrimination, Canada has a binding obligation to prevent hate propaganda (2001:6). Article 4 of the Convention obliges Canada to prevent the dissemination of ideas based on racial superiority or hatred, incitement to discrimination, as well as all acts of violence against any “race” or group of persons of another colour or ethnic origin, and to prevent racist activities, including financing, and prohibit organizations, and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities an offence punishable by law. Other Countries have implemented the obligations that flow from the Convention. In June 1997, the Germany Bundestag passed the first comprehensive national Internet law (Mock, 2000). It established rules for protecting confidentiality of personal data and prohibits pornography, fascist propaganda and Holocaust denial. The law also establishes licenses for “digital signatures,” or electronic codes that promise to make commercial transactions on the Internet both secure and confidential. A law was recently passed on privacy of information in Canada, but it does not address hate or appropriate use codes. “The Government of Canada is central to efforts nationally and internationally to create laws and regulations to prevent hate on the Net” (2001:7). In conclusion the authors recommend that “education is the key to demonstrating the need for legal sanctions and the need for industry and civil society cooperation to develop codes of conduct and other measures to improve the Net by promoting human rights (2001:7). The experts also note that there are also promising “hate watch” websites that monitor and work to expose and prevent illegal material on the Internet. These range from government established ones to human rights and anti-racist NGO sites like the League for Human Rights of B’nai Brith Canada and the Canadian Anti-racism Education and Research Society. Both groups monitor hate on the Net and mobilize communities to lobby ISPs and access service providers to drop web sites that violate Canadian law. These and other human rights and anti-racist websites provide detailed information on human rights, anti-semitism and racism. Among the public education sites in Canada are the NIZKOR Project, Research Community Network, Artists Against Racism and the Media Awareness Network. “However, the law is a blunt instrument at best, the battle against hate on the Internet must use all the tools that are available, from law to education to strong and active NGOs.” (2001:7). 3.2 Summary Racist, religious and ethnic hate propaganda has been formally recognized in Canada since the 1970s. The Cohen Report specifically outlined the existence of racist hate propaganda

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in Canada, its history and effect, and the existing and potential future harm to society. This early report and its findings was used effectively to influence the making of new law in Canada limiting the expression of hate propaganda. Canadians understanding and conceptualization of racist hate propaganda may be considered a template by which we may evaluate the extent, degree, and impact of other forms of hate propaganda directed at women, gays and lesbians, the disabled and youth and elderly persons. The new ‘third wave’ of hate propaganda shows that the Internet has quickly become one of the main tools for communication, education, advertising and commerce enabling direct contact between the large numbers of individuals and groups throughout the world. As the European Commission against Racism and Intolerance (ECRI: 200) notes, the “Internet offers an unprecedented means of facilitating cross border communication of information on human rights, establishing educational and awareness raising networks to combat racism and intolerance.” However, while the Internet has become an important tool for enhancing and expanding communication, commerce and education, it has also become a weapon for spreading hate, advocating violence and genocide, and for denying groups basic human rights. While racist, xenophobic, homophobic and sexist material have been distributed by mail and through telephone answering machines in the past, the Internet has made the most virulent hate propaganda much more accessible to those who might never have come into contact with it before (Matas, 1997; 2000). In fact, the Internet allows hate mongers to reach into the privacy of people’s homes to find vulnerable children and others who may be prone to hate propaganda and recruitment into hate groups. The comparative advantage of spreading and selling hate online rather than by older methods may account for the dramatic rise in hate sites on the Net. The Simon Wisenthal Centre claims that there are now more than 2000 hate sites on the Internet, up from 1400 in 1999, which was a 100% increase from the year before. An the number of sites is growing and their sophistication is increasing (Franklin, 2001). While the question of what to do about racist hate propaganda online has not yet been resolved, the last 30 years has established a framework by which Canadians have conceptualized harm and attempted to limit it through various educative initiatives, legislation and human rights bodies (Combatting Hate on the Internet: Recommendations for Action, 2001). Conceptualizing hate propaganda against the aforementioned expanded groups draws from the legal and extra-legal template which is already established however, questions arise. Is it acceptable simply to ‘add and stir’ the expanded groups into the present framework without analysis of the particular standpoint by which specific groups experience hate and hate propaganda? If difference is to be taken into consideration, how can the existing conceptual parameters expand to encompass a recognition of the harm experienced by women, gays and lesbians, disabled persons, youth and elderly persons? These are the issues which need to be addressed when attempting to answer the question of how to conceptualize hate propaganda on the basis of sex, sexual orientation, age, mental and physical disability.

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4.0 SEXUAL ORIENTATION HATE PROPAGANDA 4.2.1 Sexual Orientation Hate Propaganda Hate propaganda directed toward gay and lesbian persons is not illegal in Canada, and the sexual minority community is divided over this issue. In Toronto a gay man attempted to limit the expression of a homophobic hate monger and was refused. In 2000, Toronto’s Philip Shea filed a human rights complaint, calling an advertisement that was placed in the Globe and Mail “anti-gay” (Xtra, 2000). Milton evangelist Ken Campbell bought a full page ad in the Globe and Mail on April 18, 1998, attacking gay people and the Supreme Court of Canada’s Delwin Vriend decision, which ordered the province of Alberta to protect the basic human rights of homosexuals. The Ontario Human Rights Commission announced that it would not act in the complaint about the anti-gay advertisement because the ad expressed ‘freedom of expression’ (Xtra, 2000:25). In a second incident police were unable to lay charges against a Baptist minister who promoted hatred against sexual minorities. When Reverend Fred Phelps of Topeko Kansas threatened to come to Canada to protest changes to Ontario’s Family Law Act after the M. v. H. decision handed down by the Supreme Court of Canada, Ottawa police claimed they could do nothing because sexual orientation is not a protected group under Canada’s hate propaganda provisions (B’nai Brith Canada, 2001). Phelps singles out gays and lesbians as his primary targets, but also devotes a small space to the promotion of hatred against Jews on his website, ‘godhatesfags.com’. Phelps did not follow through on his threat to burn the Canadian flag in front of the Supreme Court of Canada in Ottawa in July (Tibbets, 1999). He also failed to appear in Toronto in November when he was supposed to show his condemnation for a local gay and lesbian scout troop, although a counter demonstration was there in full force. He threatened to protest at Calgary’s Pride event in 2001 when ex-prime minister Joe Clark led the annual Pride parade. In contrast, one successful prosecution under the provincial Act in Saskatchewan was in 2001, whereby (Coolican, 2001) a one person board of inquiry for the Saskatchewan Human Rights Commission ordered the Saskatoon StarPheonix and a Regina man to pay $1,500 each to three men over an anti-gay ad published four years ago. The ruling, issued two years after the inquiry concluded in September 1999, also prohibits Hugh Owens, who purchased the ad, from “further publishing or displaying the bumper stickers submitted in evidence in a newspaper or any other medium,” and prohibits The StarPheonix from accepting the ad for any further publications. The offending ad depicted two stick-figure men holding hands superimposed with a red circle and slash, along with a listing of Bible passages condemning homosexuality and a phone number for ordering similar bumper stickers. Owens claims it was his response to the announcement of Gay Pride Week in Saskatoon that year. The adverstisement’s publication on June 30, 1997 sparked an immediate protest outside the newspaper’s office by gay and lesbian groups and supporters who condemned The

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StarPheonix for promoting hatred. Three men, Jeff Dodds, Jason Roy and Gens Hellquist filed formal complaints with the Human Rights Commission, resulting in the board of inquiry two years later. StarPheonix lawyer Grant Currie argued that the newspaper acted out of consideration for freedom of speech and religion, saying a ruling against the newspaper and Owens could limit freedom of speech in the media, churches and even classrooms, which are all forums for debate on issues such as homosexuality. Ironically, Owens also made a complaint to the Commission against The StarPheonix -- after the newspaper refused to publish a second, similar advertisement. He claimed the paper’s refusal amounted to an abuse of his right to freedom of religion and expression. The complaint did not proceed. Owen also took out an advertisement in The StarPhoenix’s paper, the Regina LeaderPost. The Human Rights Commission declined to pursue complaints about the advertisement because it contained Bible passages only, and did not include the anti-gay symbol. In the ruling, lawyer Valerie Watson, who was appointed by the government to chair the board of inquiry, said the symbol of a circle with a slash through it may not itself communicate hatred. “However, when combined with the passages from the Bible, the board finds that the advertisement would expose or tend to expose homosexuals to hatred or ridicule, or may otherwise affront their dignity on the basis of their sexual orientation” (Coolican, 2001:2). Though there is no doubt Owens believed he was simply expressing his honestly held religious beliefs, the Saskatchewan Human Rights Code places a reasonable restriction on his right to freedom of expression by prohibiting such material, she wrote. Between 1990 and 1996 there were six proposals to add sexual orientation to the list of identifiable groups (2000:79-80). The first of Robinson’s proposals, Bill C-326, An Act to amend the Criminal Code (hate propaganda), 2d Sess., 34th Parl., 1990 (1st reading 27 June 1990), was introduced approximately six months before the constitutionality of s.319(2) of the Criminal Code, (R.S.C. 1985, c. C-46) was upheld in Keegstra. His second proposal, Bill C-247, An Act to amend the Criminal Code (hate propaganda), 3d. Sess., 34th Parl., 1991 (1st reading 19 June 1991), was introduced approximately six months after the release of Keegstra. (See also, House of Commons Debates (27 June 1990) at 13172 (S. Robinson). A bill was also introduced by Peter Milliken: Bill C-350, An Act to amend the Criminal Code (hate propaganda), 3d Sess., 34th Parl., 1992 (1st reading 10 June 1992; 2d reading 26 November 1992). Margaret Mitchell has proposed a comprehensive overhaul of sections 318 and 319, which would include expanding the list of identifiable groups under Bill C-431, An Act to amend the Criminal Code (hate propaganda), 3d Sess., 34th Parl., 1993 (1st reading 5 May 1993). In October 1999, NDP member of parliament Svend Robinson responded to the anti-gay hatred generated by Reverend Fred Phelps (Tibbets, 1999) by introducing a private member’s bill (Bill 263) that would expand the definition of “identifiable group” respecting hate propaganda in the Criminal Code to include “any section of the public distinguished by ... sexual orientation” (Bill 264). Cohen notes, “along with specific attacks such as those directed at Matthew Shepard, Phelp’s invective represents a growing body of hate propaganda aimed at silencing and persecuting sexual minorities and inciting violence

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against them” (Cohen, 2000:73).In November 2001, M.P. Svend Robinson introduced a private member’s bill that would include gays and lesbians in the hate propaganda section of the Criminal Code (Prout, 2001). 4.2.2 Theorizing Sexual Orientation Legal theorists and social scientists have argued for the inclusion of sexual orientation in the Criminal Code (Siegal, 1991:203-259; Banks, 1999; Cramer, 1999:5-24; Gross, 1999:141143; Ault, 1997: 49-63; Herek, 1989:948-955; Rubenstein, 1994:280-299; Major, 1996:221-240; Cohen, 2000:69-104). From a legal perspective, Kathleen Sam Banks (1999) finds compelling reasons to broaden the prohibition against hate propaganda found in the Criminal Code to include other members of traditionally disadvantaged groups, which she notes was contemplated as early as 1985 (Canada, 1985). Because sexual orientation is set out as an analogous ground to those set out in s. 15 of the Charter, she recommends that it is time to consider including within the hate propaganda provisions of the Criminal Code as well. She notes that hate speech against gay men and lesbian women is seen as less significant and less reprehensible compared to the speech directed at individuals on the basis of their colour, race, religion, or ethnic origin. However, evidence reveals that gays and lesbians are subject to hate speech on an on-going basis. Marie-France Major (1996) also argues for the expansion of the present definition of identifiable group to include those who are targetted because of their sexual orientation. She believes that this inclusion would signify to society at large that hate propaganda directed against gays and lesbians is unacceptable behaviour and it would assure members of the gay and lesbian communities that they are full-fledged members of society. Further, Major argues that if we are to have laws that meet the concerns of special victimized groups, we must ensure that protection is given to all of those who need it. Writing from an American perspective, Elizabeth Cramer (1999:5-24) contends that it is illogical and a violation of the Fourteenth Amendment to exclude sexual orientation from hate crime laws. Cramer notes that the perpetrators of hate crime incidents, regardless of the target group, have similar motives and perpetuate similar types of assaults and the victims experience similar physical and psychological harm. Further, Cramer suggests that excluding a class of persons who are targets of hate crimes denies them equal protection under the law because the Equal Protection Clause of the Fourteenth Amendment establishes a fundamental right to equal benefit of laws protecting personal security. Rubenstein, (1994:280-299) argues that the “question of whether -- and what – legal response is required to combat anti-gay/lesbian speech must start from a recognition of the structural reality of the oppression of lesbians and gay men” (Rubenstein, 1994:280-281). Rubenstein sees gays and lesbians to be in a particularly difficult situation because they must “come out’ and engage in speech to assert their identities. Because homosexual existence has

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been outlawed and censored, speech, and the right to speech, has been a struggle for sexual minorities. Having obtained the right to exist and to speak of and for themselves, they straddle an uneasy divide: how to limit the speech of those who harm them, but at the same time argue for their right to speak in a society which renders them invisible. He writes: The oppression of silence is possible because sexual orientation is not, like race or gender, visually identifiable: individuals must take on a lesbian/gay identity through some speech or speech act known as ‘coming out’. Because taking on a lesbian/gay identity involves coming out, society can oppress gay people most directly simply by ensuring that such expressions are silenced (Rubenstein, 1994:283). Rubenstein sees ‘silencing’ as being the core of homophobia (Rubenstein, 1994:285).While American society accepts gay sexuality, it is less tolerant of open expression of lesbian and gay identity. On example of this silencing is Congress’s ‘don’t ask, don’t tell’ military policy. Further, Rubenstein shows that throughout the legal system one finds greater regulation of lesbian and gay identity than of heterosexual activity (Rubenstein, 1994:284). He also argues that “censorship in American society is also uniquely aimed at lesbian and gay speech” (Rubenstein, 1994:285). Under the First Amendment, gays and lesbians are allowed free speech and association; and under the Fourteenth Amendment they are promised equal protection under the laws. However, Rubenstein points out that the experience of lesbians and gay men in the US contradicts the promise of legal protection because “our equality has been achieved almost exclusively through the First Amendment, while our Fourteenth Amendment claims -which are almost necessarily premised upon ‘speech’ or ‘speech acts’– have largely failed” (Rubenstein, 1994:286). Another problem specific to American law is that in order to obtain protections lesbians and gays must prove the immutable and unchangeable nature of their sexual orientation, for under law, if their ‘disability’ cannot be changed, then protections must be provided. Despite these problems, Rubenstein thinks we need to consider creating an equal protection jurisprudence for lesbian and gay identity that derives its power from the protections of free speech and association in the First Amendment (Rubenstein, 1994:294). Julian Roberts (1995) reports that homophobia is perceived as more socially respectable than racism or antisemitism. Perhaps, for this reason, the protection of sexual minorities is thought to be less pressing. Others argue that the issue has been adequately studied and the solutions are evident however, the will to implement policy and legislation to effect change is lacking. Interestingly, in March 2000, George Bielmeyer, a Ryerson professor, published the results of his campus-wide survey in which he found that most of the 1,813 surveyed would speak out against racism but only half would speak out against homophobia (CLGRO, 2000:12). In a recent Canadian Jewish Congress (2000) report on hate on the internet in Canada, Robert Goldschmid reports that some of the most vile sites on the internet are directed against

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gays and lesbians. Gays and lesbians are also a prime target of hate crimes. He concludes that given the rulings of the Supreme Court of Canada on the equality rights of gays and lesbians, the Criminal Code should protect this group. For all of these reasons Goldschmid, a Victoria consultant and legal mediator, recommends amending the Criminal Code to include sexual orientation as a protected group (CJC, 2000:13). 4.2.3 Conceptualizing ‘Sexual Orientation’ The Canadian Oxford Dictionary defines sexual orientation or sexual preference as: “the fact of being attracted to people of the opposite sex, of one’s own sex, or both sexes” (Canadian Oxford Dictionary, 1998:1327).50 While sexual orientation is a medical category devised by physicians to categorize sexual preference, the term “homosexual’ cannot encompass the nature and experience of the entire group. While the common denominator characterizing heterosexuals, lesbians, gays, bisexual experience is their sexual preference, these groups are distinctly socially and politically different for a number of reasons. Gay men and lesbian women are socialized as males and females and are therefore influenced by their different male and female gender socialization. While gays and lesbians experience a common discrimination because of their same-sex attraction, there are vast socioeconomic, racial, religious, and cultural differences across the two groups. Heterosexism, -- discrimination or prejudice by heterosexuals towards homosexuals -- exists in society because more social, political, and economic power is allotted to heterosexual identity, rendering lesbian and gay existence either invisible or deviant. Thus, gays, lesbians and bisexuals are not ‘persons’ within the state (Lahey, 2000).51 The history of persecution and social control of gay and lesbian persons make them a group in need of certain protections. However, like the category of ‘sex,’ the cultural construction of this conceptual category and the differences within it must be deconstructed when analyzing the forms and impact of hate propaganda experienced by sexual minorities. 4.2.4 Sexual Orientation Conceptualized in law Sexual orientation has been defined through various legal cases in which individuals have attempted to establish that lesbians and gay men are pedophiles, sodomists, destroyers of society, deviants, and ‘queers.’ The leading cases which have helped to conceptualize sexual orientation within Canadian law are, Leshner v. Ontario,52 Haig v. Canada,53 Canada (Attorney General) v. Mossop,54 Moore v. Canada (Treasury Board),55 McAleer v. Canada (Human Rights Commission),56 Dwyer v. Toronto (Metro)57, Vriend v. Alberta.58 The Ontario Court of Appeal in Haig ruled that sexual orientation was an analogous ground of discrimination under the Canadian Human Rights Code (Smith, 1999:159). The court also confirmed that the absence of ‘sexual orientation’ as a prohibited ground in the Act contravenes s. 15 of the Charter (Smith, 1999: 159). The Supreme Court of Canada in Egan v. Canada unanimously endorsed the finding that sexual orientation is an analogous prohibited ground of discrimination in s. 15 of the Charter (Smith, 1999:162).

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In Leshner the Ontario Human Rights Commission concluded that the definition of marital status should be “read down” to remove the discrimination based on marital status by reading out the phrase “of the opposite sex”, so that, discrimination would be prohibited against persons living in a conjugal relationship outside marriage.59 In this case, a same-sex relationship was defined through the challenge to the Income Tax Act. The Board of Inquiry used the prohibition included in the Ontario Human Rights Code to find that the denial of full pension plan benefits constitutes a prima facie violation of the prohibition against discrimination based on sexual orientation found in s. 5 of the Ontario Human Rights Code. The Board cites Brown v. Board of Education 347 U.S. 483 (1954), a major decision ordering the desegregation of public schools in the United States, to argue that “the continued categorical exclusion of gay and lesbian employees from survivor benefits for their conjugal partners would, in a relevant analogy with Brown, contribute to “‘a feeling of inferiority as to their status in the community’ and to their being inherently unequal.”60 In Leshner, it is noted that “sexual orientation” was added to the Code as a prohibited ground in 1986 (Canadian Human Rights Reporter, 1997:D/1). “While not defined in the Code, it is “commonly understood to denote an individual’s orientation or preference in terms of sexual relationship to others, whether homosexual or heterosexual or perhaps both.”61 Dr. Mariana Valverde testified , “sexual orientation is a vital aspect of an individual’s psychological identity. Dr. Valverde emphasized that sexual orientation functions in a manner similar to religion or ethnicity with respect to a person’s identity ... Public recognition of one’s identity and inherent dignity is essential to healthy social integration into community life”62 In this case it was argued that granting benefits to gays and lesbians may destroy society and that providing sexual minorities with benefits will be too costly.63 Haig and Birch64 (1985) specifically dealt with the constitutionality of “reading in’ sexual orientation to the Canadian Human Rights Act (Canadian Human Rights Reporter, 1997:D/49). Haig challenged the constitutionality of Canadian Human Rights Act because it did not comply with s. 15 of the Charter, and failed to provide access to the ameliorative procedures of the Act to those who are discriminated against because of their sexual orientation. Birch alleged that the Canadian “Armed Forces discriminated against him on the basis of his sexual orientation. The Ontario Court (General Division) agreed and found that the Canadian Human Rights Act did not comply with s. 15 of the Charter because it failed to provide access to the ameliorative procedures of the Act to those who are discriminated against because of their sexual orientation. However, the Government of Canada appealed the decision. In Canada (Attorney General) v. Mossop, the Attorney General attempted to challenge the decision that a gay family constitutes “family’ within the Ontario Human Rights Act. Employee benefits were denied to a partner in a homosexual partnership. The case challenged the definition of family status, immediate family, common-law spouse, and the basis for denying

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employee benefits to a partner in a homosexual relationship. Mossop took a day of paid leave from work to attend the funeral of his lover’s father. However, Mossop applied for and was refused bereavement leave. He filed a complaint under the Canadian Human Rights Act alleging discrimination based on the ground family status and the Tribunal agreed that the relationship of Mr. Mossop and Mr. Poppert fell within the term “family status.” However, upon appeal, the Supreme Court of Canada in a 4-3 decision found that the ground “family status’ in the Canadian Human Rights Act does not give Brian Mossop, a gay employee, the right to be covered by a benefit provision in his collective agreement. McAleer was the first sexual orientation hate propaganda case to come before the Canadian Human Rights Commission under section 13(1) of the Canadian Human Rights Act involving transmitting telephonically messages which exposed persons to hatred and contempt because of their sexual orientation. In this case, the defendants CLN and Tony McAleer argued that s. 13(1) might be applied whenever “political correctness” says so, however the court found that section 13(1) had not reached an abusive state. Second, CLN and McAleer argued that “the inclusion of sexual orientation is tantamount to legitimizing or legalizing bestiality and pedophilia.” McAleer and CLN posited that the definition ‘sexual orientation’ is overly broad and may include pedophiles.65 They claimed that societal interests prevail over that of individual homosexuals and pointed to the Egan decision as proof.66 In contrast, the court ruled that the definition of sexual orientation, “is not vague or overly broad, and has been found to be an analogous ground under s. 15 of the Charter.” The court clearly separated sexual orientation from pedophilia, dismissing allegations that gay sexuality is analogous to the sexual abuse of children. Furthermore, the Tribunal underlined that it is now recognized, in light of the Ontario Court of Appeal’s decision in Haig v. Canada (1992), 9 O.R. (3d) 495 [16 C.H.R.R. D/226], that sexual orientation is a prohibited ground of discrimination and that it is not necessary to go any further in defining the scope of the term “sexual orientation.” Accordingly, the Tribunal found that the message at issue was likely to expose homosexual persons, identifiable on the basis of a prohibited ground of discrimination, to hatred or contempt. In this regard, the Tribunal concluded that it is the “effect of the message rather than the intent of its truth that must be assessed (Canadian Human Rights Reporter, 1997).67 In Vriend v. Alberta the Supreme Court of Canada found that the omission of the ground of sexual orientation from Alberta’s Individual’s Rights Protection Act (IRPA) is a violation of s. 15 of the Charter and could not be saved by s. 1 (Canadian Human Rights Reporter, 1997:D/60).68 In considering the question of whether sexual orientation should be a prohibited ground of discrimination, Russell J. from the Alberta Court of Queen’s Bench (1994) found that sexual orientation was related to sex or gender as a prohibited ground (Canadian Human Rights Reporter, 1994, D/358).69 She also found that “considering the larger social, political and legal context, the omission of sexual orientation in the Canadian Human Rights Act [R.S.C. 1985 c. H6] constituted discrimination offending s. 15(1) of the Charter.” (Canadian Human Rights Reporter, 1994:C/358).70 Russel J. was satisfied that homosexuals are discriminated against and

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did not require evidence (Canadian Human Rights Reporter, 1997:D/14),71 concluding that sexual orientation is properly considered an analogous ground under s. 15(1). This issue was resolved in Egan v. Canada, [1995] 2 S.C.R. 513, which held that sexual orientation is an analogous ground. The IRPA in its underinclusive state was found to deny substantive equality to gays and lesbians because they could not have any remedy for discrimination against their sexual orientation under the Act like that given to heterosexuals (Renke, 1996:942-43).72 While heterosexuals would not be able to argue discrimination under the IRPA also, it is recognized, “yet this is far less likely to occur than discrimination against a homosexual or lesbian on that same ground (Canadian Human Rights Reporter, 1997:D/31).”73 Interestingly, the question arose of whether protected groups should be based on “innate’ characteristics, which would require gays and lesbians to show that their sexual orientation is an immutable characteristic. This approach was rejected for a “more varied and comprehensive approach to the determination of whether a particular basis for discrimination is analogous to those grounds enumerated in s.15(1) (Canadian Human Rights Reporter, 1997:D/53).”74 It was recognized that discrimination exists against gays and lesbians and that gays and lesbians should be added as a group in need of protection under the IRPA (Canadian Human Rights Reporter, 1997:C/32).75 4.2.5 The Effects of Sexual Orientation Hate Propaganda The effects of homophobic hate propaganda as outlined by Cohen (2000:73-74), Banks (1999) and Rubenstein (1992) suggest that the impact of sexual minority hate propaganda and racist hate propaganda are both similar and different. Cohen thinks “the harm inflicted by sexual orientation hate propaganda defies traditional legal categories such as libel and defamation”(Cohen, 2000:73). While race is a protected category domestically and internationally, “sexual orientation’ is absent from law and the human rights recognition of harm largely because gays and lesbians have been defined as “other”. With recognition of heterosexual hegemony, and the de-pathologization of “homosexual’ identity, an understanding of the effect of homophobia has developed alongside that developed by critical race theorists. For example, Mari J. Matsuda (1989:2331-32) explains that just as the harm caused by racist speech cannot be analyzed apart from the structural reality of racism, so the harm caused by sexual orientation hate propaganda must begin with an analysis of homophobia. Matsuda declines to conduct such an analysis arguing that homophobic research requires a separate analysis from racist speech, “because of the complex and violent nature of gender insubordination, and the different way in which sex operates as a locus of oppression” (Matsuda, 1989:2331-2332). Rubenstein thinks there is a need to focus on the way in which idealizations of heterosexual love operate to silence - or ‘closet’- people who violate these roles (Rubenstein, 1992:20; see cohen, 2000:74). Rubenstein notes that self-imposed silence means that the only reference to sexual minority existence is often through graffiti. Thus, “while racism and homophobia are both supremacist ideologies that profoundly undermine the identities of their victims, the hallmark of homophobia is the invisibility of its victims” (as cited in Cohen,

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2000:74; see for example, Love, 1992:33; Mattijssen, 1996:314; M v. H, 1999). Further, Cohen thinks that“this invisibility -- the antithesis of freedom of expression – is both encouraged and exacerbated by the very hate-mongers who invoke freedom of expression values” (Cohen, 2000:74). While Rubenstein defends the view that this “silencing’ is a reason to expand free speech as much as possible, Cohen prefers the view that this ‘silencing’ confirms that hate propaganda is inimical to freedom of expression (Cohen, 2000:74). Social psychologists who investigate the way in which homophobia is structured suggest that rigid gender roles create a culture of deviance (Harry, 1982:546), perpetuate sexism and patriarchy (Herek, 1986:563), and further an ideology of heterosexism (Herek, 1984:1). As Cohen notes, “most experts agree that homophobia is more than a visceral fear of lesbians and gay men; it is, for lack of conclusive definition, an ideology of perceived sexual deviance that operates to silence, subordinate, and exploit anyone who violates traditional gender roles” (Cohen, 2000:74). Because closetry, deviance, sexism, and supremacy form the context of homophobia against which hate propaganda works its harms, Cohen argues that these harms are not just the result of individual incidents of defamation, but must be viewed in the context of heterosexual domination. Cohen thinks that as a result of heterosexual domination target groups experience a range of physiological and psychological traumas which exacerbate existing feelings of vulnerability and isolation (Delgado, 1982:133; see also Peters, 1991:25-30; Major, 1996:221). Second, these effects extend beyond the targeted group, causing particular detriment to freedom of expression, freedom of association, and democracy (Cohen, 2000:74-75; Harvard Law Review, 1988:682). Third, sexual orientation hate propaganda reinforces (and is reinforced by) the other tools of homophobia, which include harassment, gay bashing, overt and covert discrimination, extortion, stigmatization, murder, and genocide (Cohen, 2000:75; Petersen, 1991:237; Roberts, 1995; Shaffer, 1995:41; Faulkner, 1991:261). Finally, the absence of protection from hate propaganda - particularly in jurisdictions such as Canada, where other target groups receive protection – signals to members of sexual minorities that they are second class citizens not entitled to equal protection of the law (Cohen, 2000:75). Cohen concludes, “it is the individual and combined effect of these interconnected tools of homophobia, and not the mere pluralization of individual defamation or libel, that ultimately justifies state sanction of anti-gay hate propaganda” (Cohen, 2000:76). Banks (1999) argues that the injury of sexual orientation hate propaganda is threefold: 1) loss of human dignity and self worth and belonging to community; 2) a loss of cultural identity and group defamation; and, 3) society as a whole is wounded by the experience (Banks, 1999). Banks thinks that the effect of hearing hateful speech can cause targetted individuals to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with nongroup members or adopting attitudes and postures directed towards blending with the majority. Exposure to the hatred, contempt and humiliation of hate propaganda leaves the target group

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members feeling like outsiders in their own country, inhibited from contributing to the extent of their desire and ability. Not only does hate propaganda harm individuals and communities but “the animosity created by ignorance and hatred further exacerbates the divisions of a nation” (Banks, 1999:25). A further effect is the danger that “those to whom hate speech is directed will accept the prejudice, further damaging their self esteem and dignity, or not speak out against the hatemonger and assert their own views due to fear of further attack, thus denying the target group members full participation in the democratic process” (Banks, 1999:26). On the other hand, “members of the group at which the hate speech is directed may respond aggressively to it with violence, further escalating social tension” (Banks, 1999:26). Hate speech harms sexual minority communities because it “reinforces stereotypes of gays and lesbians as socially undesirable, sexually aggressive sexual predators (among other things) deserving of society’s fear and loathing and discrimination (Banks, 1999:34). Clearly, the effects of hate propaganda on sexual minority communities can have immeasurable and far-ranging repercussions. American and Canadian psychologists (Herek, 1992; Herek & Berrill, 1992; Herek, & Gillis, 1997; Garnets, Herek, & Levy, 1992) reporting on the psychological effect of hateful language note that while most discussions of anti-gay hate crimes focus on physical and sexual assault “verbal harassment and intimidation are the most common forms of victimization of lesbians and gay men” (Herek, Garnets, & Levy, 1992:215). Words such as ‘faggot,’ ‘dyke’, ‘queer’ and the threats of violence (implicit and explicit) that accompany them are used by oppressors to remind gays and lesbians of their subordinate status. Herek suggests that anti-gay verbal abuse “constitutes a symbolic form of violence and a routine reminder of the ever-present threat of physical assault” and reminds sexual minorities of their outsider and minority status. Anti-gay verbal assault challenges the victim’s routine sense of security and invulnerability, making the world seem more malevolent and less predictable. The psychological effects of verbal abuse can be even more severe than the effects of physical abuse because “it affects how one feels about oneself without a physical injury to which to attribute the feelings” (1992:215). Verbal attacks inspire feelings of fear and self-hatred. Because verbal threats may also involve near encounters with violence, verbal abuse can seriously restrict the day to day behaviours of sexual minorities. Most gay and lesbian respondents to victimization surveys indicate that their public behaviour is affected by their fear of physical attack (Faulkner, 1997, 1999, 2001). Verbal harassment and intimidation reinforce this climate of fear. Fearing verbal harassment and intimidation, gays and lesbians form the adaptive strategy of avoiding possible occasions of verbal abuse, consequently, their day to day behaviours are restricted, and they may lose considerable control over their lives. Those who are closeted may view verbal intimidation as a form of outing, leading them to retreat further into the closet. Herek notes that in addition to those close to the victim, the entire gay and lesbian community is victimized by anti-gay verbal assaults. “Hate crimes create a climate of fear that pressures lesbians and gay men to hide their sexual orientation” (1992:216). 4.2.7 Evidence from Non-Governmental Organizations of Sexual Orientation Hate

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Propaganda76 In order to compile primae facie evidence of hate propaganda against lesbians, gay men, and bisexuals I gathered data from social science and legal literature, an exploration of case law, interviews with non-governmental organizations, and a search of Canadian Internet sites. The aim of the search was to determine if there is prima facie evidence of hate propaganda against these groups. Data was obtained from the Coalition for Lesbian and Gay Rights Ontario (CLGRO, 1992-2000), Equality for Gays and Lesbians Everywhere (EGALE), the Lesbian and Gay Issues and Rights Committee of the Canadian Bar Association (Lesbian and Gay Issues of the Canadian Bar Association, 1995), The Hate Sub-Group (Multiculturalism) (Hess, 1996) and a review of Canadian Internet sites such as FreedomSite, Canadian World Domination, Canadian First Immigration Reform Committee, Heritage Alliance, Heritage Front, Canadian Association for Freedom of Expression (CAFÉ), Citizens for Foreign Aid Reform, Canadian Patriots Network (CPN), Heritage Front, Aryan Nations, Church of the Creator. The Coalition of Lesbian and Gay Rights, Ontario, maintains a file of issues related to lesbians and gay men. Their Newsclippings 1992-2000, provides a wealth of information on verbal and written expression which may be considered to promote hatred against gay and lesbian individuals and their communities. A second source of information is the report written by Ingrid Hess (1996), titled Prosecution and ‘Anti-Homosexual’ Publications. This report documents the history of prosecution of hate propaganda cases in Canada and outlines the tests used to determine harm. 4.2.8 Sexual Orientation Hate Propaganda Found in the Public Domain While sexist language and pictures depicting women as sexual objects can easily be found in stores Canada-wide, hate propaganda directed toward gays and lesbians is usually promoted in political propaganda produced by the radical right. Another difference is that while the degradation of women seems to be accepted visually, the vilification of sexual minorities through the written word is not as subtle. The most vile and outwardly hateful comments found in this research are directed toward sexual minorities. Hate propaganda promoted against lesbians and gay men are promoted through language, pamphlets, leaflets, and radio. As a project for the Alberta Justice Appeals and Criminal Law Policy Department, Hess (1996) reviewed materials from Canadian and American documents to determine whether, upon receipt of a complaint respecting homophobic material, a charge and prosecution could be justified (Hess, 1996:1). Upon analysis of the materials, Hess found several recurring themes in the anti-homosexual materials she reviewed for her project.77 These include the promotion of views about the 1) depravity of homosexuals; 2) disease and sickness spread by homosexuals;

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3) AIDS as a homosexual disease and due punishment; 4) homosexuality undermining of society’s institutions and very existence; 5) dangers associated with homosexuality; and, 6) conspiracy of homosexuals (Hess, 1996:5). In her analysis of the Canadian and American materials, Hess notes that the words and descriptions in the publications are generally of an extreme nature. Hess reports: Homosexuals are described as: unsanitary, insane, abnormal, wild, predatory, filthy, sickening, antisocial, disturbed, defective, perverted, self-destructive, unfortunate, foolish, irresponsible, pathological, evil, robbers, cheaters, defrauders, criminal, personally and socially worthless, superflous, ruthless, vengeful, expletive, dangerous, murderous, molesters, serial killers, victimizers of young children, communists, fascists, revolutionaries, debased, militant, violent, conspirators, liars, hateful, thugs, Hitlerian, brown shirts, terrorists, evil, sterile and anti-life (Hess, 1996:9). Hess found that the messages reviewed “bear a striking resemblance to hate propaganda directed against groups such as Blacks and Jews” (Hess, 1996:9). Homosexual behaviours are described negatively. “Homosexual behaviours are described as: antibiological, offensive, anatomically aberrant, biologically vile, biologic horror, biology went berserk, and biological insanity.” (Hess, 9). Homosexuals are characterized as posing a grave danger to society, and these types of messages evoke ‘emotions of an intense and extreme nature that is closely associated with vilifications and detestation’ as found in Keegstra” (Hess, 1996:10) For example, Their mere presence is said to put people at risk of contracting deadly diseases. The authors advocate quarantining homosexuals, discriminating against them in order to keep them out of mainstream society, and maintaining them in their “well deserved position of outcast and anathema that they have traditionally occupied’(The Pro-Life Activists Encyclopedia). Homosexuals are associated with the most despicable criminal activity imaginable (Hess, 1996:10). While the bulk of the material Hess reviewed contained comments likely to engender hatred, she notes that not all of it could be characterized as hate propaganda. For example, Hess writes “an article entitled Gay Lessons [8] questions the role of homosexual advocates in the education system and access to funding in order to promote their objective, which is said to be the promotion of homosexuality as a normal lifestyle. There is no real condemnation of gays or gay behaviour per se” (Hess, 9). Hess points out that, under our present Criminal Code prohibitions, ‘it is doubtful that the authors could avail themselves of the defences under s. 319(3) of the Code” (Hess, 1996:10). First, given the defences under s. 319(3) of the Code, the authors would need to establish the truthfulness of the statements on a balance of probabilities. Hess found the

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statistics quoted to be questionable and the comments made in the articles to be vast generalizations which could never be proven (Hess, 1996:10). Second, Hess suggests that the other defenses in s. 319(3), - good faith, religious argument, discussion for public benefit and statements to remove hate, - would be difficult to use as “most of the materials do not appear to be of the type that would support these defenses” (Hess, 1996:10). The defence of good faith religious argument would be available in those cases where it is argued that someone should not engage in homosexual activity because it is sinful, or is discouraged for living a homosexual lifestyle. However, Hess claims, “most of the arguments presented in the materials are not couched in religious rhetoric” (Hess, 1996:10). Hess concludes: “the materials in large part constitute hateful propaganda that would be prosecutable under s. 319(2) if the term ‘identifiable group’ in s. 318(4) of the Code was expanded to include groups identified by sexual orientation” (Hess, 1996:10). In the next section I will draw from three sources which provide evidence of anti-gay and anti-lesbian material (Banks, 1999; Hess, 1996; Coalition of Lesbian and Gay Rights, 19922000). While Hess’s review of materials draws from both American and Canadian sources, my review of newsclippings from CLGRO provides an overview of the range of hate propaganda directed toward gay an lesbian individuals and communities in Canada. Because many of the themes that evolve are similar to those documented by Hess, I utilize her thematic headings to group the findings from the CLGRO archives and build on her work. The following themes evolved from a preliminary review of the comments made about gay and lesbian persons in Canadian media. 4.2.9 Depravity Hess (1996) reports that the focus on depravity was the most consistent theme evolving from her review of documents promoting hatred against gay and lesbian persons. These messages bear a striking resemblance to hate propaganda directed against Blacks and Jews, for example, sexual depravity, the issue of a grand conspiracy, and the contention that gays and lesbians do not contribute to society (Hess, 1996:9). Under the first contention, sexual depravity, Hess notes that “sexual depravity, uncontrolled sexual urges or unsatiable sexual appetites, and promiscuity, were all charges routinely made against Blacks, and form part of the mythology of their ‘otherness’ and ‘inferiority’”(Hess, 1996:9). Hess also finds that the vulnerability of children to gay influence is often expressed in the literature similar to the claims of the vulnerability of white women to sexual attack by coloured men. A second theme under the depravity framework is a concentration on the notion that lesbians and gay men are involved in a grand conspiracy, which Hess notes, is consistent in antisemitic thinking. In particular, the notion that there is a homosexual conspiracy to take over the media and government agencies and institutions is supported, as well as the subversive and revolutionary nature of their mission are common themes (Hess, 1996:9). Third, Hess found there is a focus on promoting the view that gays and lesbians contribute nothing to society. Hess finds that gays and lesbians are characterized as taking advantage, especially in an economic sense, of the rest of society. She points out “that

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similar arguments have been made about Jews throughout history and especially in the Nazi era, is notorious” (Hess, 1996:9). Finally, Hess found that atrocities committed against gays and lesbians are “referred to as ‘imaginary’, a characterization comparable to the denial of the Holocaust” (Hess, 1996:9). In attempting to prove that gays and lesbians are depraved, Hess finds that certain acts and practices are characterized as if the majority of gay and lesbian persons routinely engaged in them. A great effort is made to suggest that certain practices are “standard,” “common”, “predominately” and “almost all” (Hess, 1996:6). The work she reviewed goes into great detail about the number of sexual practices gays and lesbians are likely to engage in, authoritatively describing them as typical “homosexual activity.” Statistics are sometimes used to give these claims an aura of validity. Most disturbingly, the majority of gay men are said to be affiliated with groups that promote pedophilia, or other similarly aberrant conduct. In attempting to portray acts as homosexual in nature, “all homosexuals are painted with the brush of depravity and sexual deviancy” (Hess, 1996:6). In many of the Canadian documents reviewed the suggestion is made that gay men are paedophiles, have sexual preferences for young boys, and that gay and lesbian persons ‘recruit’ young persons. The intimation is made that gay men and lesbians are child abusers who should not be allowed near young people, despite that academic research suggests otherwise. It is suggested that gay persons have public sex, have vast sexual appetites and turn to young boys to satisfy themselves (CLGRO, 1994:37)78. A link is made between sexual predators such as Dahmer, Bernardo and Olsen and gay persons (CLGRO,1995:5)79. A radio show which aired in Canada called lesbians, gays, and bisexuals deviant and linked gay men to child-molesting.80 A Winnipeg radio station called a lesbian a diesel dyke and homo-fascist and implied she wished to sexually abuse children. The same station was reprimanded for its comments about Winnipeg’s ‘out’ gay mayor (CLGRO, 2000)81 In 1995, an MP stated that extending human rights to lesbians and gays would be akin to granting protection to bestialists, pedophiles and necrophiles (CLGRO, 1995:11)82 In his defense of a Libery Net hotline message promoting the execution of homosexual child abusers, Tony McAleer stated that it is “ok to hate pedophiles and that gays would be best dealt with by drowning them in bogs” (CLGRO, 1994:2)83 In 1994, in response to the Vriend decision, an Albertan minister said gay rights would give licence to pedophilia (CLGRO, 1994:13).84 In 1993, a law enforcement magazine refused to run a gay police advertisement stating that it would promote a “deviant lifestyle”(CLGRO, 1993:10).85 4.2.10 Homosexuality is a Sickness or Disease: Another theme that arises in the review of homophobic material is the argument that gays and lesbians choose their “lifestyle” and therefore can be changed (Hess, 1996:6). Some are believed to be suffering from a mental illness (CLGRO, 1997:12)86 and therefore require intervention or treatment. Under the fist theme, which focuses on the immutability argument, homosexuals are considered to have chosen to have been misguided into their lifestyle. The

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proponents of this perspective argue that it is possible for them to recover from their problem and lead “normal” lives (Hess, 1996:6). On the other hand, homosexuality is perceived to be a result of mental illness, however, Hess notes, the “tone of the passages goes far beyond a desire to help and put the person on the right path” (Hess, 1996:6). There is a strong tone of condemnation and traits are attributed to those who suffer from the “malady’ which are extremely negative (Hess, 1996:6). This theme is found in statements which suggest that gays and lesbians do not contribute to society because they do not procreate, that they promote moral corruption and degradation, and can and should change their sexuality from straight to gay (CLGRO, 2000:8).87 Others suggest homosexuality is unnatural, unhealthy and against god’s will (CLGRO, 1999:16; CLGRO, 2000:16).88 A Toronto Transit worker refused to distribute transfers promoting gay and lesbian services because it is a “health issue” (CLGRO, 1999:19).89 In 1999, an Alberta MP stated lesbian and gay relationships are “technically incomplete” and that marriage provides a healthy biological design for procreation. This MP also stated that children raised in same-sex relationships are “gender-derprived” (CLGRO, 1999:19-20).90 In 1996, it was suggested gays should seek a cure, and that they are a threat to Canada’s youth (CLGRO, 1996:13).91 In 1995, a Reform MP argued that AIDS victims get the disease through choice, promiscuity and immorality (CLGRO, 1995:16).92 A University of Ottawa professor called bisexuals ‘psychopaths’ and feminists “irrational man-haters” (CLGRO, 1994:6).93 In 1994, a handout was distributed at a conference stating that homosexuals should not be given any more rights than sex offenders, rapists, or child molesters (CLGRO, 1994:24).94 In 1993, the Reverend Ken Campbell’s Metro Renaissance Church distributed a flyer outlining the “deviant” nature of gay sexuality (CLGRO, 1993:21).95 In 1996, Alliance leadership candidate Dr. Grant Hill argued that extending rights under the Canadian Human Rights Act to gays would encourage a lifestyle that spreads disease (Laghi, 2001:A7). 4.6.3 AIDS is a Homosexual Disease and Due Punishment Another theme Hess found in her review of materials is the notion that “homosexuals are to be blamed for AIDS” (Hess, 1996:7). The disease is characterized as being the due punishment for persons engaging in sexual activity. The victims of AIDS who contract it other than through homosexual sex are described as being “innocent.” It is also suggested that “new strains and viruses, brewing in the bodies of homosexuals, will cause further scourges and grief to all of society” (Hess, 1996:7; CLGRO, 1996:15).96 Of interest is a Dutch case in which an individual was prosecuted at the highest court in the Netherlands for distributing flyers promoting hate propaganda against sexual minorities and those with AIDS (Cohen, 2000:88).97 4.6.4. Undermine Societies Institutions and Very Existence: Many of the publications Hess reviewed maintain that gay men and lesbian women do not

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contribute to the fabric of society. Gays and lesbians are also portrayed as harbouring a distinct lack of respect for society (Hess, 1996:7). Sexual minorities are said to be selfish, focus on their own personal pleasure and gratification, and show little commitment to society as a whole. As a result, it is suggested that gays and lesbians are more likely to engage in anti-social and criminal behaviour. Another sub-theme she found was that gays and lesbians are extremely dishonest people. For example, the authors of the documents Hess reviewed “allege greater propensities amongst homosexuals to cheat, shoplift, and defraud”(Hess, 1996:7). Hess notes the fear is that this trend will ultimately lead to the destruction of society through the continual undermining of social institutions (Hess, 1996:7). In Canada, it has been suggested that homosexuals brainwash the rest of society, in particular, youth (CLGRO, 2000:13).98 Second, it is suggested that lesbian and gay relationships do not contribute anything to society (CLGRO, 2000:13).99 In response to a 1994 case challenging Canada’s Old Age Security Act a coalition opposed to extending rights to same-sex couples said “society would be more prepared to eat excrement than it is prepared to accept homosexual relationships” (CLGRO, 1994:34).100 In opposition to the election of Alex Munter to Ottawa’s regional council a flyer was distributed saying “the average homo man eats the excrement from about 23 other men a year” (CLGRO, 1994:42).101 It is also believed that granting gay men or lesbians unions will “lead to communal suicide” (CLGRO, 1999:2).102 It was stated that some AIDS sufferers are innocent victims while homosexual victims are a “scourge to mankind”(CLGRO, 1999:16).103 Lastly, the homosexual movement has purportedly “undermined the bible” and “turned the Bible into hate literature” (CLGRO, 1993:9)104 4.6.5 Danger A fifth theme Hess finds in her review of documents is that sexual minorities are considered a dangerous and criminal element. Therefore, it is argued that homosexuals are to be feared. Hess notes that fear mongering about AIDS as a ‘homosexual disease’ suggests that the threat it poses is naturally a homosexual threat. Gays and lesbians are also perceived to be a threat because they lie and therefore have little regard for other members of society. There are two subcategories within this “Danger” theme: the theme of the danger of contracting AIDS and other diseases and second, the theme of criminality. Hess points out that an interesting aspect of the disease subcategory “is the number of inaccuracies or outright falsehoods promulgated” (Hess, 1996:7). The dissemination of falsehoods only serves to amplify fear that already exists in society about the risk of being infected with the deadly virus. Additionally, because it is assumed that gays and lesbians have disregard for society it is suggested that they gleefully transmit diseases intentionally or with vengeance (Hess, 1996:7). The second subcategory of criminality suggests that homosexuals are more likely to commit violent and heinous crimes than heterosexuals. In particular, their victims are often alleged to be children. These assertions are often “couched in such a way that one is lead to believe that this type of behaviour is rampant amongst homosexuals” (Hess, 1996:7). Hess found that the phrase ‘crimes against humanity’ (Bassiouni, 1946105) was used on a number of the front pages of the pamphlets she reviewed. In linking crimes allegedly committed by “homosexual criminals” with crimes against humanity the

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writers of these documents suggest that sexual minorities are responsible for some of the most serious and violent crimes known to humankind (Hess, 1996:8). Hess believes that the implication is that ‘homosexual crimes’ are not meant to target individuals but the whole group: “Thus the inference to be drawn from the use of this language is that horrific acts are being carried out by homosexuals and that the rest of society is being victimized by them” (Hess, 1996:8). The suggestion that gays and lesbians are a danger to society and a social and public health problem is elaborated upon in a case in British Columbia involving the distribution of flyers promoting the view that homosexual desire is a sickness and gay sex is medically problematic (CLGRO, 1997:4).106 Another case, involving the banning of children’s books support the notion that homosexuality is not a healthy choice (CLGRO, 1997:6)107. In yet another example, the killing of homosexuals is promoted (CLGRO, 1995:2).108 In another case the death penalty is supported for homosexuality (CLGRO, 1994:5).109 In another article the view is promoted that gays and lesbians attempt to impose their ‘lifestyle’ on others (CLGRO, 1994:41).110 4.6.6 Conspiracy: Hess (1996) found that a pervasive theme in the materials she reviewed is that society as we know it today is under siege from “homosexual forces.” The authors note that gay and lesbian persons do not simply want tolerance; they have a greater political agenda which involves creating a “queer planet.” To this end, “homosexuals” actively recruit new converts and enlist the assistance of collaborators outside their movement. In addition, they are seen to be infiltrating mainstream organizations and institutions to achieve their “destructive ends.” Hess found in the literature many examples cited of the ways in which gay and lesbian persons succeed in advancing their agenda. There is a perception that lesbians and gay men have control and influence over the media, and as a result, the “rights and security of non-homosexuals are undermined or destroyed” (Hess, 1996:9). Hess also found that there is promotion of the idea that gays and lesbians are given licence to abuse and assault others in order to realize their goals (Hess, 1996:9). This theme is continued in comments made in Canada regarding the conspiratorial nature of ‘homosexuals’. It is believed that gays and lesbians seek to infiltrate the school system to corrupt children (CLGRO, 2000:23).111 It has also been suggested that gays and lesbians force students in schools to accept and tolerate their lifestyle (CLGRO, 2000).112 It has been suggested that HIV carriers should be branded on the face and that “Hitler was brought to power by the homosexual movement” (CLGRO, 2000:12-13).113 Human Life International promotes the view in Canada that homosexuality is a personally destructive lifestyle (CLGRO, 1995:14).114 Reverend Fred Phelps promotes the view that gays and lesbians are violent (CLGRO, 1999:23, 26).115 Ken Campbell states that gays and lesbians impose their “bathhouse morality” on churches and the nation (CLGRO, 1998:7).116 It is suggested that providing protection to gays and lesbians under Bill C-41 (sentencing enhancement) will promote gay violence toward heterosexuals (CLGRO, 1995:11).117 Gays and lesbians have been linked to the

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devil (CLGRO, 1995:16).118 It is suggested that hate crime legislation protecting sexual orientation condones immorality (CLGRO, 1995:23).119 Children should be taken away from lesbian and gay parents and be given to ‘real’ parents (CLGRO, 1995:25).120 Gays and lesbians are suggested to be militant (CLGRO, 1994:18).121 Homosexuality is a threat to society because it “is an inherent departure from God’s order and destroys “Canadian values” (CLGRO, 1994:2930)122 Gays have a “hidden homosexual agenda” (CLGRO, 1994:33)123 Gay people pass on their sexuality by sexually assaulting young people (CLGRO, 1994:37).124 The view is also promoted that homosexuals die early, are promiscuous, are unhappy, and that homosexuality can be unlearnt (CLGRO, 1994:41).125 It is also suggested that gay bathhouses spread AIDS (CLGRO, 1993).126 In 2001, after the attacks on the World Trade Centre Reverend Jerry Falwell blamed gay and lesbians and feminists (Simon, 2001). On Pat Robertson’s television show, “The 700 Club,” he said that “God Almighty, angered by America’s abortion rights, gay rights and secularism in schools, had permitted terrorists to slay the World Trade Center and smite the Pentagon” (Simon, 2001). The above claims provide evidence regarding ongoing incidents of hate propaganda directed toward lesbians and gay men which may be considered to incite hatred toward gays and lesbians as a group. The impact of the hate speech and denigration outlined in the above incidents is real for lesbians and gay men and their communities. Respondents to Faulkner’s (1997, 1999, 2001) survey of anti-gay/lesbian violence in Toronto and Calgary state they alter their image and changed their behaviour to avoid being verbally harassed and attacked. Preliminary exploratory research on the impact of victimization on communities across Canada suggests that lesbians and gay men go to great lengths to hide their identities and many remain closeted in some aspects of their lives due to fear of verbal harassment and physical assault (Samis, 1995; Smith, 1995; New Brunswick Coalition for Human Rights Reform, 1990; Kelner, 1983; Demczuk, 1993; Commission des droits de la Personne due Quebec, 1994; Tremblay, Boucher, Ouimet, 1996, 1998; Commite sur la violence contre les gais et les lesbiennes, 1996). While verbal harassment and expression that promotes hatred against lesbians and gay men may seem to be minimal to some, the extent of this harm can be seen in the fact that being closeted in some or most aspects of their lives is a requirement to ensure safety, custody of their children, housing and economic survival. 4.6.7 Sexual Orientation Hate Propaganda: International Responses Cohen points out that a growing number of jurisdictions have prohibited sexual orientation hate propaganda, either in a criminal or civil context (Cohen, 2000:87). Ireland, Norway, Denmark, The Netherlands and New South Wales have been the most progressive, while the “United States has remained a ‘conspicuous exception’ to the worldwide trend toward criminalizing hate propaganda”(Goldstein, 1993:95; Cohen, 2000:90). “Following a strong

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condemnation of its treatment of sexual minorities, Ireland added sexual orientation to its Prohibition of Incitement to Hatred Act 1989, thus making it a “criminal offence to incite hatred on the basis of sexual orientation” (Scahill, 1994:4). Norway and Denmark have also criminalized some forms of verbal abuse against sexual minorities, the later having made it illegal “to utter publicly or deliberately, for the dissemination in a wider circle, a statement or remark, by which a group of people are threatened, derided or humiliated on account of their ... sexual orientation” (Cohen, 2000:87). Cohen’s (2000) analysis of international human rights documents reveals that “some group classifications are always protected, some are only sometimes protected, and still others are never protected” (Cohen, 2000:86). Cohen (2000) reports that “although five major international human rights documents contain specific limitations on hate speech, and three others contain general limitations on speech, none includes sexual orientation among its identifiable grounds”127 (Cohen, 2000:84). The general limitation clause in the Universal Declaration provides that “[t]hese rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations,”128 of which one of the significant goals is to promote and encourage respect for human rights and fundamental freedoms “without distinction as to race, sex, language, or religion.” The International Covenant on Civil and Political Rights (ICCPR) modifies this list of identifiable grounds slightly, requiring states to prohibit “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence ...”129 One of the strongest statements on hate propaganda in international law is in the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which requires signatories to adopt immediate and positive measures to eradicate all incitement to, or acts of, such discrimination ... [by declaring] punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination ... [by declaring] punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts ...” (CERD, art.4). Similarly, the Genocide Convention, which provides that “[d]irect and public incitement to commit genocide” shall be punishable, defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical [sic], racial or religious groups [sic] ...” (Genocide Convention, arts. 2, 3.). Regional conventions in Europe, Africa, and Latin America omit sexual orientation from their enumerated grounds of discrimination. Like the Universal Declaration, neither the European Convention nor the African Charter explicitly requires states to proscribe hate propaganda;

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however, the European Convention affirms equality and non-discrimination rights on the basis of “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”(European Convention, art. 14). These rights have been interpreted by both the European Court of Human Rights and the European Commission of Human Rights to permit restrictions on speech that promotes racial and ethnic hatred (Defeis, at 98-103). Regional documents also require states to prohibit hate propaganda. The Helsinki Final Act does so indirectly in its article on respect for human rights and fundamental freedoms, which requires participating states to act in conformity with the Charter of the United Nations and the Universal Declaration (Final Act, art. 1(VII)). The American Convention is more specific, requiring states to prohibit “propaganda for war and any advocacy of national, racial, or religious hatred ... against any person or group of persons on any grounds including those of race color, religion, language, or national origin ...” (American Convention, art. 13(5)). Despite the apparent hierarchy of minority claimants in international law, recent jurisprudence has affirmed the universal application of international human right norms (Wilets, 1994:119-120). Cohen points out that in Toonen v. Australia,130 the United Nations Human Rights Committee interpreted discrimination based on ‘sex’ as including sexual orientation, thus finding Tasmania’s anti-sodomy statute in breach of Australia’s obligations under the ICCPR. Although this was a tentative judgment in many respects -- not least because it failed to recognize sexual orientation as an “other status’ -- it cast doubt on any domestic statute that discriminates on the basis of sexual orientation (ICCPR, art. 2(1)). For this reason, Cohen suggests that international law might be interpreted to compel the criminalization of sexual orientation hate propaganda in Canada and other countries. 4.6.8 Amnesty International In a report released in 2001 Amnesty International documents incidents of torture and illtreatment of sexual minorities. Due to lack of global human rights protections sexual minorities are treated as less than human. AI considers that acts of violence against lesbians, gay men and bisexual and transgender people in the home or the community constitute torture for which the state is accountable when they are of the nature and severity envisaged by the concept of torture in international standards and the state has failed to fulfil its obligation to provide effective protection (Amnesty, 2001). 4.7 Summary An exploration of present and past hate propaganda directed at sexual minorities in Canada suggests that parallels can be drawn between the type of hate propaganda directed at

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racial and ethnic minorities and gays and lesbians. Gays and lesbians of racial and ethnic diversity experience multiple and sometimes triple oppressions. The effect is to attempt to incite hatred toward a group due to characteristics that set it apart from what is perceived to be normative. The link between the portrayal of negative attitudes and stereotypes and actual hate activities can be seen in organized and premeditated ‘gay bashings’ and other incidents of antigay/lesbian violence. The language of hate is often coupled with actual physical assaults in these criminal acts. Keegstra established that scientific proof of a causal relationship is not required. Because gays and lesbians continue to be despised and vilified without any state recognition of the harm done to them their ability to attain complete personhood within the Canadian state is seriously impaired. Future conceptualizations of hate propaganda directed toward sexual minorities should incorporate an analysis of the history of their oppression, the effect of hate propaganda on the group, and documentation of ongoing and intentional targetting of homosexuals in public media and political debate. An examination of the religious exemption outlined in the Criminal Code is also required.

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5.0 SEXIST HATE PROPAGANDA 5.1 Sexist Hate Propaganda Some argue that hateful speech directed toward women diminishes women’s social status (Eglin, Heser, 1999). An incident in Toronto reveals the tensions between university freedom of speech policies and those who oppose anti-feminist hate propaganda. During the University of Toronto December 6th memorial marking the anniversary of the 1989 Montreal massacre at L’Ecole Polytechnique, Dr. Charles Rackoff sent an email to the University of Toronto community stating that feminists exploit the anniversary of the 1989 massacre in the same way the Ku Klux Klan exploits the incidence of black-on-white murder (National Post, 2000:A19). While many faculty, staff and students expressed anger and disagreement to Professor Rakoff and the university via email, Rakoff’s comparison of the memorial services to a Ku Klux Klan campaign could not be punished by the university due to the university’s values as a “bastion of free speech,” said University of Toronto president Robert Birgeaneau (Gillis, 2000:A8). Dr. Birgeaneau gave notice on the University’s Web site that he found Professor Rackoff’s email “repugnant,” and reminded people that he spoke at a campus memorial service (Fine, 2000:A23). Professor Rackoff argued that a university campus should be open to a free exchange of ideas. During the same week at a Toronto subway station a 37-year-old man was arrested for a year long graffiti campaign during which he wrote phrases such as “Women are evil snakes” and “It’s a man’s world, bitch” (Lewington, 2000:A8). Feminist groups have argued unsuccessfully since the 1980s for the inclusion of “sex” under Canada’s hate propaganda provisions on the basis that pornographic hate propaganda is an individual and community-based harm to women (Fraser Commission, 1985). 5.2 International Responses to Sexism In 2001, Amnesty International broadened its traditional concern with state-sponsored acts, to incorporate rape, wife assault, genital mutilation, sex slavery and the use of violence to intimidate women as a form of torture under international treaties (Knox, 2001:A8). The report argues that physical intimidation and persistent attacks against women fit the definition of torture contained in United Nations treaties such as the Convention Against Torture and the International Covenant on Civil and Political Rights. The report, titled Broken Bodies, Shattered Minds, recognizes that “the severity of harm inflicted on women by private individuals can be as damaging as that inflicted on women who are tortured by agents of the state” (Knox, 2001:A8). The report acknowledges that women often have difficulty fighting back because of poverty. The report notes that instead of upholding the international treaties, authorities encourage condone or ignore brutal attacks on women -- and allow the use of torture against prisoners. Amnesty calls on governments to pass tougher laws against domestic violence, step up enforcement, order police to take women seriously when they report attacks and punish guards for prison torture.

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5.3 Conceptualizing “Sex” Sex is a label used to distinguish the physiological, functional, and psychological differences that distinguish the male from the female. The Canadian Oxford Dictionary (1998:1326) defines sex as: “1) either of the main divisions (male and female) into which living things are placed on the basis of their reproductive functions; 2) the fact of belonging to one of these; 3) males or females collectively; 4) sexual intercourse; and, 5) sexual instincts, desires, etc., or their manifestation”(Canadian Oxford Dictionary, 1998:1326).131 Typically, in Western culture we have normalized “pure” male and female entities for the purpose of scientific and medical categorization and typification. Those born with combined sex properties have been surgically manipulated so that they can appropriate singe-sex specific characteristics. Some argue that sex and gender are one -- male and female biology and gender development are innate or biologically determined, -- while others suggest that norms and values imposed upon male and female bodies are culturally bound. While conservatives argue that sex is a fixed immutable biological entity which gender naturally flows from, sociologists and feminists suggest that gender is a socially constructed identity that males and females acquire through culture and socialization. Due to gender socialization sexism and sexual discrimination flourish.132 Based on interviews with persons affiliated with non-governmental organizations working with women two themes arise: the issue of pornographic hate propaganda, and a second theme, sexist hate propaganda targeting abortion providers and women who use their services. A third issue that arose in discussion was the need to consider instances and the effect of hate propaganda on transgendered persons (Lombardi, Wilchins, Priesing, Malouf, 1998; Namaste, 1993). In Canada, arguments for the inclusion of sex within the hate propaganda provisions of the Criminal Code have historically evolved around the issue of the sexist portrayal of women. Women suggest that these attacks indirectly incite hatred leading them to fear for their safety. The Canadian organization, Media Watch, an organization which tracks media representation of women, does not document sexist or violent media representations of women. 5.4 The Effects of Sexist Hate Propaganda: Pornography as a Civil Rights Issue and Harm to Women While conservatives think pornography is a moral issue of good and evil, and civil libertarians defend pornography as an idea or speech, (Strossen, 1997) radical feminists see it as a political problem of power and powerlessness (MacKinnon, 1983) and argue that obscenity doctrine does not go far enough to protect women. The radical feminist approach to pornography rejects the conservative/liberal dichotomy of viewing all sexually explicit materials as either immorality or free expression, by redefining pornography in terms of harm to women

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(MacKinnon, 1995). Pornography regulation, especially in the United States, is therefore viewed as a civil rights issue (Jacobs, 1984). The issue of sexist hate propaganda has been well documented, researched and debated in Canada. In 1985, The Special Committee on Pornography and Prostitution in Canada (The Fraser Committee) recommended using the hate provisions in the Criminal Code for some types of pornography. The Special Committee recommended that the definition “identifiable” groups in s. 318(4) of the Criminal Code should be broadened to include sex, age, and mental or physical disability insofar as it applies to s. 319 of the Criminal Code (Canada, 1985:26-28). This same recommendation was made by the Report of the Law Reform Commission in order that these provisions of the Criminal Code would be consistent with the prohibited grounds of discrimination set out in s. 15 of the Canadian Charter of Rights and Freedoms (Law Reform Commission of Canada, 1986,1988). The Commission expressed an alternate view in its Working Paper on Hate Propaganda that this recommended amendment would not catch pornography. Bill C-54, dealing with pornography, received first reading on May 4, 1987. It contained an amendment to s. 318(4) of the Criminal Code to include “sex” within the definition of an identifiable group. This bill died on the Order Paper with the dissolution of Parliament on October 1, 1988. The Canadian Advisory Council on the Status of Women (1984, 1988) supported the bill and submitted briefs to the government. In 1992, the Supreme Court ruling in Butler opened a new chapter in the long-standing political debate among feminist legal scholars and activists, civil libertarians, and various religious groups over the issue of pornography and the corresponding efforts by the Canadian state to regulate it (Johnson, 1999). Critics suggest that the Butler (R. v. Butler 1989. 60 Manitoba Reports (2d) 82 (Manitoba Queen’s Bench); (1990) 73 Manitoba Reports (2d) 197 (Court of Appeal); (1992) 78 Manitoba Reports (2) 1 (Supreme Court of Canada); retrial (March 31, 1993) 88-01-04647 (Manitoba Queen’s Bench) decision recognized harm to women, however it did so in a paternalistic way with the ideal of protecting society from social harm (Johnson, 1999:309). Experts suggest that given the vast amount of research already conducted on this issue in Canada and the United States, the question is not whether it can be proven that pornography harms women and society; the question is rather how do women and men feel that pornography impacts upon their lives? If we are to use a method which values the views of victims then their voices need to be heard (Lahey, 1991). The women who spoke to this issue for the U.S. Minneapolis Ordinance research project helped to document harms toward women, and the literature supporting both sides of this debate is vast and well documented in the Canadian and American literature. Since the 1970s American feminists in particular have struggled to make the link between pornography and discrimination (Dworkin, 1981; MacKinnon & Dworkin, 1988). In 1984, the Harvard Law Review examined the available evidence of pornography’s harms and found there was sufficient evidence to support a rational legislative determination that at least some kinds of pornography harm women (Harvard Law Review, 1984). An early study by Diana Russell (1984) provided some of the first evidence that the sexual subordination in the practice of pornography

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goes on not only during the process of production but during the process of consumption. What followed was an attempt to empirically prove a causal relationship between viewing pornography and acting out physical and sexual aggression toward women and children. For example, Neil Malamuth (1981, 1980) and others found that men exposed to rape myths believe that women enjoy rape and forced sex more than men who had never been exposed to pornography. Donnerstein (1984) found that pornography has the effect of changing women’s status to something less human so that men exposed to violent pornography tend to trivialize the violence they see in films (Donnerstein, 1987; Linz, 1985, Donnerstein, Linz, Penrod, 1987). In applying a similar test to women as that given to men in the Donnerstein/Linz program, Krafka found that like the male subject group, her female subjects grew less upset with the violence the more they saw, and that they rated the materials less violent the more they saw (Krafka, 1985). More recently, Russell (1997, 1998) has presented the view that violent and nonviolent pornography can cause sexual violence such as rape. Seto, Maric and Barbee (2001) argue that evidence for a causal link between pornography use and sexual offending remains equivocal (Seto, Maric, Barbee, 2001). A review of correlational research which attempts to measure the role of sexually explicit materials in sex offenses does not support the view that sexually explicit materials in general contribute directly to sex crimes, however they do support the view that there may be an indirect link. Bauserman reports that findings are consistent with a social learning view of pornography, but not with the view that sexually explicit materials in general contribute directly to sex crimes (Bauserman, 1996). For example, a meta-analysis of 30 studies published between 1971-1985 summarizing the effects of pornography indicate that there is a connection between viewing pornography and aggression. Results indicate that pictorial nudity induces subsequent aggressive behaviour, that consumption of material depicting nonviolent sexual activity increases aggressive behaviour, and that media depictions of violent sexual activity generate more aggression than those of nonviolent sexual activity. No other moderator variable produced homogeneous findings (Allen, D’Alessio, Brezgel, 1995: 258-253). A further meta-analysis of 46 published studies provide evidence confirming the link between increased risk for negative development when exposed to pornography (Oddone-Paolucci, Genuis, Violato, 2000). Critics of this position argue that censorship would not reduce violence against women. Segal believes that feminists tend to minimize the persistent structural and interpersonal conditions that produce gender violence in their focus on individual male behaviour (Segal, 1997; Strossen, 1997). Nevertheless, there exist ongoing tensions about the validity of research conducted by psychologists and feminists on both sides of the debate with no conclusive empirical cause and effect “evidence” of harm. Despite this, case studies reveal there is a significant impact in certain situations. The difficulty is in generalizing these findings to the wider community. The results suggest that research in this area can move beyond the question of whether

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pornography has an influence on violence and family functioning. Other difficulties lie with the questions posed, the definitions used, and tests conducted. Researchers with the Centre for Addiction and Mental Health in Toronto suggest that the difficulty of proving a causal link between pornography and harm lies in a number of factors such as a range of operational definitions of the term pornography, the choice of proxy measures for sexual offending in experimental research, and the emphasis given to sexual assault of adult females over other kinds of criminal sexual behaviour such as child molestation, exhibitionism, and voyeurism (Seto, Maric, Babaree, 2001). Seto, Maric, and Babaree (2001:35-53) found that individuals who are already predisposed to sexually offend are the most likely to show an effect of pornography exposure and are the most likely to show the strongest effects. In her report, “Making Sense of the Research on Pornography,” Professor Thelma McCormick of Toronto’s York University (Metropolitan Toronto Task Force on Violence Against Women Subcommittee, 1983) examined whether there is any causal connection, direct or indirect, between exposure to pornography and acts of sexual aggression. In her report five areas of research were reviewed: studies of sex offenders, studies of people who use pornography regularly, studies of media influence, experimental studies of aggression, and recent experimental studies of pornography and aggression combined. McCormack points out that “these studies add to our knowledge about human behaviour, but they are designed in a very special way and for particular theoretical purposes. In short, we could not establish any reliable statistical association between pornography and acts of sexual violence” (McCormick, 1985:182). The following are the five areas of systematic research that have been bearing on pornography and its effects as outlined by McCormick (1985:184). In her report she provides a detailed overview of the types of studies conducted under each of the following areas. (1) Aggression Studies: Aggression studies have long been a tradition in psychology. These are usually experimental and carried out by psychologists. The aggression (or media violence) studies can be grouped on the basis of their methodologies and theories: a) stimulus and response; b) social learning; c) cultivation hypothesis; and d) desensitization hypothesis (McCormick, 1985:184). Aggression studies show that “there can be both an increase and decrease of a tendency toward aggression as a direct result of exposure to aggressive stimuli” (McCormick, 1985:188). (2) Studies of Pornography: “Some are experimental and carried out by psychologists; others have been field surveys concerning pornography, censorship and sexual practices. In addition, there have been studies of pornography consumers and studies of antipornography social movements. Much of this work has been done by sociologists” (McCormick, 1985:184). Up until the 1980s the U.S. Commission on Obscenity and Pornography (1970) was the major source of systematic data on pornography. The Commission carried out a comprehensive examination that included experimental studies, surveys of attitudes, and an examination of the economics of pornography. The “studies of pornography suggests that the use of pornography has become

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widespread and that it stimulates sexual activity and sexual fantasy but does not alter established sexual practices. In spite of the more permissive social environments of today, people are still ambivalent about pornography: they believe it is harmful to others, not themselves. most of the research on pornography was carried out before the feminist movement developed its critique of pornography, so it is not surprising that feminists who are critical of pornography are often confused with members of the older tradition of decency crusades” (McCormick, 1985:191). (3) Studies on Sexual Offenders: These may be large-scale statistical studies of persons convicted of sexual offences; or small-scale clinical studies. The former are usually done by criminologists; the latter by psychiatrists. McCormick reports that “in general, those who study sexual offenders have not given any serious attention to pornography either as a direct or indirect causal factor. Journalists frequently do, but criminologists and others who have studied sex offences are more likely to emphasize early childhood experiences, weak social integration, cultural variables and other motivational and structural factors” (Mccormick, 1985, 191). McCormick’s review of the research on sexual offenders concludes that “there is no systematic evidence to link either directly or indirectly the use of pornography (soft core or hard core) with rape” (McCormick, 1985:192). (4) Studies of aggression and pornography combined. These are usually experimental and conducted by psychologists. In the original aggression studies, the stimuli were usually films or slides of men fighting men. More recently, psychologists have looked at the symbolic presentations of sadistic sexual behaviour as a stimulus to aggression. These were experimental studies. There were no controls for sex roles or for sex attitudes. Finally, the samples are small and the studies are seldom replicated (McCormick, 1985:192). McCormick concludes these studies of pornography and aggression shed little light on the effects of pornography, but sensitized researchers to the deeper problems men have about aggression. “They alter our perception of the type of person who would commit rape, from a male whose sexual development has been disturbed leading to strong sense of self-hatred and sex-guilt, to a male who lacks the inhibitions that might deter him” (McCormick, 1985:195). (5) Studies of media influence: Studies of media influence may be survey or experimental. It is carried out by sociologists, political scientists and communication scholars. Media research is concerned with how much influence the media have on opinion, attitudes and behaviour (Katz, 1980; McCormick, 11985:95). Much of this research is related to political phenomenon and attempts to answer how media affect public opinion, political attitudes, and voting and other forms of political participation. Studies of media influence look at both the content and the audiences in a paradigm that emphasizes communication as an interactional process. Attention is given to the characteristics of audiences: age, socioeconomic status, measures of social integration and other variables that might predispose individuals or groups to experience the pornography differently. In terms of pornography as a form of media influence McCormick (1985:197) points out that whether pornography was seen as amusing or disgusting, harmless or a

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danger to the moral fabric of society, a fantasy or a manual of instruction could not be predicted on content analysis. “Second, media influence, even when it is consistent with our values, tends to be weak” (McCormick, 1985:197). To summarize, media studies have helped to show that “women and children become the victims in a symbolic environment that does not advocate their exploitation in any open way but, indirectly, legitimates it” (McCormick, 1985:196). (6) Cultural Studies: Cultural analysis of pornography are diametrically opposite from behaviour studies. Cultural studies are concerned with meaning rather than psychological or social effects. Cultural discussions are concerned with values: how values are dialectically embedded in pornography and how values shape our responses to phenomenon. Cultural studies assume that pornography, like any other text, has multiple meanings, and that the literal text may be less significant. “Cultural studies regard pornography as a reflection of the culture, a mirror through which we can reconstruct the inner life of our own culture and of older ones – a symptom rather than a cause” (McCormick, 1985:197). McCormick summarizes her findings from her overview of the research on pornography and its social effects in four categories. 1) pornography and rape: the general findings in the literature is that “pornography is a major source of rape and other sexual myths” (McCormick, 1985:198). McCormick notes that while these same myths are found in other types of literature, they are found most easily and by large numbers of people in pornography. 2) pornography and sexual fantasy: The finding under this theme is that “explicit depictions of sexual activity, coercive or not, can induce states of sexual arousal and sexual fantasies in both men and women” (McCormick, 1985:198). However, “there is no systematic evidence that people copy what they see or read about in pornography” (McCormick, 1985:198). 3) Pornography, children and sexual socialization: Under this theme the conclusions from the research is that “sexual behaviour is learned behaviour and develops over time, corresponding roughly to stages of sexual development from infancy to old age” (McCormick, 1985:1999). The process of learning includes not only a knowledge of what parts of the body can produce erotic pleasure, but sex identity and sex roles as well. Media images may reinforce parental models. Although young children have access to pornography, it means less to them than it does to their older siblings. Whether pornography does any harm to the adolescent boy or girl depends on: a) prior sex education; b) sex roles; and c) the availability of alternative imagery of sexual performance (McCormick, 1985:199). 4) pornography and general social effects (McCormick, 1985:199): McCormick reports that while pornography negatively impacts on both men and women the general effect of pornography is greater for women because it impacts on their social status:

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Although it is not possible to demonstrate a causal relationship between pornography and any specific outcome, such as rape, it is possible to say that a cultural milieu in which women are always perceived as sex objects contributes to the devaluation of women. Goals such as greater participation in public life, equal pay for work of equal value, day care, etc., are that much more difficult to achieve without the strong positive images that establish credibility. Pornography demeans men as well as women, but men have so many more positive images that they are not disadvantaged by it (McCormick, 1985:199). 5.5 The Connection Between Hate Propaganda and Pornography in R. v. Butler: The Test of Proportionality and Rational Connection In Butler, the Supreme Court of Canada attempted to assess the connection between pornography and harm. On Appeal from the Court of Appeal for Manitoba Butler argued that the definition of obscenity in the Criminal Code infringes s. 2(b) of the Canadian Charter of Rights and Freedoms and that the infringement is not justifiable under s. 1 of the Charter. Second, Butler argued that the definition of obscenity in the Criminal Code infringes freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms. The Supreme Court stated: “the message of obscenity which degrades and dehumanizes is analogous to that of hate propaganda” (Butler, 1992:28). While the test of whether there is a rational link between obscenity and risk of harm to society at large is subject to controversy in the social sciences, Butler sets out that a causal link is not required as long as there is “reasonable apprehension of harm.” In Fringe Product Inc., Charron Dist. Ct. J. considered numerous written reports and works and heard six days of testimony from experts who endeavoured to describe the status of the social sciences with respect to the study of the effects of pornography. Charron Dist. Ct. J. reached the conclusion that the relationship between pornography and harm was sufficient to justify Parliament’s intervention however, this conclusion was not supported unanimously. The Fraser Report, could not postulate any causal relationship between pornography and the commission of violent crimes, the sexual abuse of children, or the disintegration of communities and society. This is in contrast to the findings of the MacGuigan Report which claims there is a relationship between violent crime and pornography. Despite lack of concrete proof of a direct link between obscenity and harm to society, the judges in Butler argue “it is reasonable to presume that exposure to images bears a causal relationship to antisocial acts and beliefs” (Butler, 1992:29). Further, the Meese Commission Report, (1992:26) concluded in respect of sexually violent material: ...the available evidence strongly supports the hypothesis that substantial exposure to sexually violent materials as described here bears a causal relationship to antisocial acts of sexual violence and, for some subgroups,

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possibly to unlawful acts of sexual violence. In relying on the findings from significant scientific empirical evidence, Butler finds that “the evidence says simply that the images that people are exposed to bears a causal relationship to their behaviour”. While it cannot be proven that there is a direct link between violent behaviour and sexual violence, cases such as Irwin Toy found that television advertising directed at young children is per se manipulative, so that Parliament had a reasonable basis for concluding that, while based on inconclusive social science evidence, “the ban on all advertising directed at children impaired freedom of expression as little as possible given the government’s pressing and substantial objective” (Butler, 1992:29). Similarly, in Keegstra, the absence of proof of a causative link between hate propaganda and hatred of an identifiable group was discounted as a determinative factor in assessing the constitutionality of the hate literature provisions of the Criminal Code. For example, Dickson C.J. stated (Keegstra, 776):133 First, to predicate the limitation of free expression upon proof of actual hatred gives insufficient attention to the severe psychological trauma suffered by members of those identifiable groups targetted by hate propaganda. Second, it is clearly difficult to prove a causative link between a specific statement and hatred of an identifiable group. McLachlin J. in Keegstra agreed (Keegstra, 857) stating: To view hate propaganda as “victimless” in the absence of any proof that it moved its listeners to hatred is to discount the wrenching impact that it may have on members of the target group themselves .... Moreover, it is simply not possible to assess with any precision the effects that expression of a particular message will have on all those who are ultimately exposed to it. Thus, the outcome of Butler is that while s. 163(8) infringes s.2(b) of the Charter, freedom of expression, it constitutes a reasonable limit and is saved by virtue of the provisions of s. 1., because the materials sold contained scenes involving violence or cruelty intermingled with sexual activity or depicted lack of consent to sexual contact or otherwise which could be said to dehumanize men or women in a sexual context. There is a concern that adding “sex” as a protected ground will lead to the prosecution of erotica, however, given that the standard of proof is high, the likelihood is that this will not happen (Busby, 1999). While women are protected under International Covenants and the Charter, their exclusion from the hate propaganda provisions under the Criminal Code sends a message that sexist hate propaganda is not a problem in Canadian society. Research on the broader effect of

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pornography on women as a group is needed as well as an understanding of how pornography effects women’s self perception and men’s perception of women. Knowledge about the impact of pornography on actions and behaviour are important but not as important as the interpretation of pornography and how pornography supports sexist views of women in society generally (Lahey, 1991). It would seem therefore, that the question is not whether pornography is harmful but the question should be what is the larger social impact of viewing women as sexual objects? Is pornography empowering or is it indicative of hate propaganda. If violent pornography incites hatred and aggression toward women then why should “sex” not be a protected category under the Criminal Code? It seems self-evident that negative depictions of women impact on both men and women and that this harm impacts on individuals and communities. Yet, is the harm so great that society should prohibit sexist material; or, is the greater harm stifling expression? In Butler, the harm of obscene materials was assessed in terms of morality and the effect on the community at large. Butler did not question the harm to women as a specific group, as a sex, rather the case evolved around the question of the harm to community. As long as the measure of harm is framed using a community standard informed by moral standards, the impact of sexist depictions of women will not be viewed through the lens of group libel. Some feminists argue that researchers need to go beyond measuring harm to individual women, and focus on the issue of group based harm to women as a sex. What, for example, is the relationship between murder, rape, stalking, assault of women and children and sexist depictions of women? Evidence gathered since the early seventies suggest a relationship exits however, unlike racial minority groups who have been targeted, the individual nature of crimes against women have led policy makers to frame this issue through the lens of “domestic violence,” rather than assessing the larger social and political impact of harm to women as a sex. Second, the risk of developing a group libel frame based on sex, is that expression, which may be deemed “deviant” by the state will be caught under the rubric of group harm. Thus erotica, created to enhance and support positive expression of sexuality will possibly be at risk of censorship (Busby, 1999; Johnson, 1999). The issue for policy makers is how to draw the line to protect the interests of women and men, while at the same time preventing state intrusion in the form of censorship. One way of starting this assessment is to ask questions. Is the publication of material supporting the gang banging of women harmful to women as a sex? Some would say “yes.” However, others might argue this expression has no connection with the actual carrying out of this action. The expression may be deplorable to some, yet others may see it as an extension of how we view women in society generally, and therefore, see it to be unproblematic. The lens through which we view the world based on our subjective experiences impacts on what we deem to be harmful. Potential victims are more likely to find such sexist expression hurtful; yet, those who support free expression may see no link between “gang banging,” inequality, and power and

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control relations between men and women; nor, might they frame this action in relation to cultural racism, sexism and heterosexism. Any assessment of group harm may therefore need to consider the systemic nature of entrenched sexism in Canadian culture from the point of view of victims. This strategy has been used in the United States by legal theorist Catherine MacKinnon and writer Andrea Dworkin. 5.6 The Minneapolis Ordinance: Pornography as a Civil Rights Issue In 1983, Andrea Dworkin and Catharine A. MacKinnon (Freedman & Freedman, 1995) participated in the Minneapolis Hearings on Ordinances to Add Pornography as Discrimination Against Women. Known as the Minneapolis Ordinance, MacKinnon and Dworkin argue that the harm of pornography is largely denied and that women as a group are harmed (MacKinnon, 1991:14-17). Catherine A. MacKinnon and Andrea Dworkin’s Model Ordinance (MacKinnon, 1995:264) to address the issue of pornographic hate propaganda defines pornography as the graphic sexually explicit subordination of women through pictures and/or words that also indicates one or more of the following: · · · · · · · · ·

women are presented as dehumanized sex objects, things or commodities; or women are presented as sexual objects who enjoy humiliation or pain; or women are presented as sexual objects experiencing sexual pleasure in rape, incest, or other sexual assault; or women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or women are presented in postures or positions or sexual submission, servility, or display; or women’s body parts -- including but not limited to vaginas, breasts, or buttocks B are exhibited such that women are reduced to those parts; or women are presented being penetrated by objects or animals; or women are presented in scenarios of degradation, humiliation, injury, torture, shown as filthy or inferior, bleeding, bruised or hurt in the context that makes these conditions sexual. The use of men, children, or transexuals in the place of women in [the above] is also pornography (MacKinnon, 1995:264).

On the basis of the evidence and analysis put forward in the Minneapolis Ordinance, Dworkin and MacKinnon designed a law that defines pornography as a practice of sex discrimination. They argue that pornography is an integral part of the experience of second-class

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citizenship for women, and hence a civil rights violation. Four practices that are actionable (1995:256) include: · · · ·

coercion into pornography; forcing pornography on a person; assault due to specific pornography; trafficking in pornography.

In American Booksellers Ass’n Inc. v. Hudnut (1985, 1986), the U.S. Court of Appeals for the Seventh Circuit found that the Model Ordinance violated the First Amendment guarantee of freedom of speech. MacKinnon notes the court reached this conclusion “in spite of its agreement that pornography contributed materially to rape and other sexual violence, as a form of subordination in itself, and was partly responsible for women’s second class citizenship in various forms, including economic ones” (MacKinnon, 1995:261). MacKinnon notes: “[j]ust as the courts have often protected the group defamation of the past, protecting and defending pornography is now the official state position in the United States” (MacKinnon, 1995:263). MacKinnon (1995:254-263) makes substantial arguments in support of her claim that pornography is a harm to women as a group. These findings are gleaned from the extensive research conducted for the Ordinance presented to the Minneapolis Hearings (MacKinnon, 1991:14-17) (See Appendix V): A search of the psychological abstracts from 1984 to 2001 suggests that some researchers concur with the findings in the Minneapolis Ordinance. Canadian feminist researchers have attempted to prove a link between pornography and harm to individual women and women as a group. Reports have been published by the LaMarsh Research Programme on Violence and Conflict Resolution (Harmon & Check, 1989; Check, 1989; Check, 1985; Senn, 1992), the Canadian Research Institute for the Advancement of Women (Ridington, 1989), and the National Association of Women and the Law (Ridington, 1983) supporting many of the claims made by MacKinnon and Dworkin. Despite the evidence to date, MacKinnon claims that women’s group claim of harm has not been taken seriously for a variety of reasons such as: (a) the effects of pornography are seen to be minimal; (b) those who protest it are women with little socio-economic and political power to change law; (c) harms to women through pornography are not seen to be as serious as the harms of racism to racial/ethnic minorities; (d) there is a fear that regulating violent pornography will limit speech and erotica produced by alternative cultures; (e) pornography and the “choice” to work for pornographers is seen to be a matter of monetary exchange rather than a dynamic of exploitation and; (f) pornography and its use is perceived to be a “private matter” having little impact on the wider cultural perception of women.

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As MacKinnon notes, the cultural representation of women via pornography is largely invisible because it pervades the everyday. As a culture, we resist recognizing the analogy between the group harm to racial minorities through hateful actions and expressions, and group harms to women via pornography. While Western culture no longer accepts the selling of pictures of black lynch victims, (and defines this as hate propaganda) it accepts profiting from snuff films and pornography which shows women tied, bound, gagged, and tortured: Lynching expresses a clear point of view about blacks, one it is difficult to express as effectively any other way. One point of lynching is that other blacks see the body. The idea expressed by the body being hung on view in public is that all blacks belong in a subordinate position and should stay there or they will be horribly brutalized, maimed and murdered. Another point of lynching is that whites see the body. Its display teaches that they are superior and that this was done for them. Photographs were sometimes taken of lynchings and made available for fifty cents apiece (McGovern, 1982:84-85). Compare such a photograph with a 1984 Penthouse spread in which Asian women were bound, trussed, and hung from trees. One cannot tell if they were dead or alive. In both cases, they are people of colour. In both cases, sexual humiliation is involved. But because the victim of the lynching is a man, the photograph is seen to document an atrocity against him and an entire people, while, because the victim of pornography is a woman, it is considered entertainment and experienced as sex and called speech and protected as a constitutional right (McGovern, 1982:8485). Based on the research and political struggles to date future research might consider a different way of seeing and conceptualizing pornography as harmful to women. This might entail acknowledgement that violent pornography is more than just words, and a reflection of our cultural perception of women. Those who are invested in maintaining in-egalitarian relations between men and women will resist seeing harm, arguing instead that individuals have choice. However, while Canada’s hate propaganda provisions consider the impact on the group, rather than the individual, there has thus far been little room for discussion about how pornography promotes group harm to women as a “sex”. 5.7 Incitement of hatred toward Women and Abortion Providers: Based on feedback from NGOs an issue that was raised was the promotion of hateful expression toward women who attempt to obtain abortions in Canada. Struggles which have taken place in the United States around this issue are relevant to the Canadian exploration of hate propaganda because of the inter-connectedness of the two countries, in particular after September 11th when it became even more obvious that domestic terrorist activities in the U.S. cannot be conceptualized in isolation. For the purposes of this investigation data was obtained from Pro-

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Choice Action Network, Canada. The aim of the data collection was to obtain preliminary data to guide future research in the area. A literature review of reproductive rights, newspaper articles documenting attacks on Canadian and U.S. abortion providers, and American and Canadian caselaw was conducted. It is argued that hate propaganda is indirectly promoted against women through the right-wing targeting of abortion clinics, abortion providers, and abortion rights activism. Attempts are made to depict women and doctors as “baby killers.” Thus far, the state has allowed protestors to express their opinion despite the fact that their actions prohibit access to abortion clinics providing advice and referral to women. NGOs argue that the protests harm women, support sexist views of women, support the murder of advocates and abortionists and thus deny women their right to reproductive freedom. 5.8 Caselaw Much research has documented the history of feminist struggle for reproductive control (Petchesky, 1990; Brodie, Gavigan, Jenson, 2000; McCormick, 2000; Menzies, 2000; Dawson, 2000). Recent cases in Canada have attempted to establish that a child has rights beyond that of its mother, and the state has the power to ensure the health of a fetus (Dawson, 2000:314).134 Under Canadian law, a child is not a separate entity distinct from its mother until its birth, however, anti-abortion activists have attempted to make the case that a child is a person at conception rather than at birth, and therefore that abortion is illegal because it counters the civil rights of unborn children. Despite this argument, there are a number of well-established and familiar legal propositions, which became familiar in preceding cases at the Supreme Court of Canada.135 Dawson (2000) outlines that these cases established that: 1) Canadian law does not recognize a fetus as a legal person possessing rights; 2) before a fetus can become a person it must be born alive; 3) remedies for negligent behaviour cannot be pursued until a cause of action has been brought by a legal person; 4) once a child is born its existence before birth can be recognized for certain legal purposes; 5) the courts do not have a wardship jurisdiction over unborn children; 6) one cannot detain or force medical treatment on pregnant women; 7) a pregnant woman and a child are one before birth; 8) the fetus does not exist as a person. Ultimately, “regarding an unborn child and its mother as separate legal or juristic persons in a mutually separable and antagonistic relationship would be a radically new conception in law”(Dawson, 2000:315). 5.9 Crimes Reported to Date Against Reproductive Rights in the United States.136 The first, scattered attacks on clinics providing abortions were reported shortly after the 1973 Roe v. Wade U.S. Supreme Court decision that legalized abortion throughout the country. The first reported clinic arson was in 1977, and the first known series of violent crimes began with the kidnapping of a doctor and his wife in 1982 (U.S. Department of Justice). A man called the Federal Bureau of Investigation to take credit for the kidnapping and to announce he was from the Army of God. He was later captured and convicted of the kidnappings and three clinic

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bombings in two other states the same year. Other waves of anti-abortion violence -- never solved -- were attributed to the Army of God in 1983 and 1984 (Richards, 1998). Canadian abortion clinics have been subject to demonstrations and personnel have been harassed. In the eighties a Toronto clinic operated by Dr. Henry Morgentaler was bombed (Dr. Henry Morgentaler et al. v. Her Majesty the Queen and the Attorney General of Canada (1988), 1 Supreme Court Reports 30 at 161). Some elements of the white-supremacist underground movement also began attacking abortion in the 1980s. The Christian Identity movement stated that it saw abortion as the suicide of the Aryan race, while the Posse Comitatus publicly blamed Jewish doctors and nurses for abortions (Richards, 1999). A broader anti-abortion movement that included crimes of obstruction, trespass, and vandalism began to emerge nationally in 1984, when Randall Terry - acting on what he said was a vision from God -- began organizing clinic and medical office "actions" in Binghamton, NY. His tactics included destroying clinic interiors and jamming clinic door locks with glue as well as human blockades and more conventional protests such as lawful demonstrations. In 1985, Joseph Scheidler of Chicago published a tract outlining the tactics that he and Terry advocated (Scheidler, 1985). The tract called for a year of "pain and fear" for abortion clinics (Lord, 1994). Terry and Scheidler in 1986 began a coordinated, nationwide, street-level anti-abortion campaign. In 1987, they launched Operation Rescue (OR), a national action organization (Lord, 1999). OR organized major clinic blockades in cities throughout the country in the late 1980s and early 1990s. OR succeeded in goals to disrupt clinical practices in Los Angeles, Orange County, San Diego and elsewhere, sometimes through misdemeanor actions (U.S. Department of Justice, 2001). The first reported anti-abortion shooting was in 1991 in Springfield, Missouri, where a masked gunman shot and paralyzed a clinic manager and shot and wounded the building maintenance manager (Violence Against Reproductive Health Care Centers, 2000). At the same time, clinic arsons more than doubled -- increasing from eight in 1991 to 21 in 1992 – after a U.S. Supreme Court decision in 1992 upheld women’s basic right to abortion (Richards, 1999). During this time, anti-government groups and causes began to rise. It is not clear whether this rise coincided with or contributed to the rise in anti-abortion violence but some believe it did. In 1992, a standoff and killings in Ruby Ridge, Idaho, demonstrated the strength of the resolve of anti-government groups. That tragic series of events began when heavily armed Christian Identity adherent Randy Weaver barricaded himself and his family in their isolated rural home to avoid a federal arrest warrant charging him with an illegal gun sale. The warrant stemmed from a sting operation, part of a federal investigation of an alleged white-supremacist underground arms business. U.S. Marshal William Degan was shot and killed and another

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marshal was wounded while surveilling the Weaver property. Their return shots killed Weaver’s 14-year-old son, Sam. The long siege that followed resulted in the shooting death of Weaver’s wife, Vicki, as she held their infant son in her arms, and ended with Weaver’s surrender. In the wake of Ruby Ridge, Christian Identity leader Pete Peters called a meeting in Estes Park, Colorado, in 1992 of previously mutually hostile factions from throughout the United States (Abanes, 1997; Dees, 1996; Dyer, 1997; Stern, 1996). This "Gathering of Christian Men" or "Rocky Mountain Rendezvous," as it came to be known, included 160 representatives of Aryan Nations (now renamed the Aryan National Alliance) (McVay, 2001), the Ku Klux Klan, neo-Nazis, and pro-gun and anti-abortion activists. Larry Pratt of the Gun Owners of America represented the latter two groups. This common front gave the first major boost to an armed antigovernment movement in the 1990s, infused with the doctrine of "leaderless resistance." (Beam, 2001). The first reported anti-abortion murder came in 1993, when Michael Griffin shot and killed a doctor outside a clinic in Pensacola, FL (Violence Against Reproductive Health Care Centers, 2000). Griffin was subsequently convicted of premeditated, first-degree murder in the killing. Following the Florida murder, a nationwide group of anti-abortion leaders signed a Defensive Action Statement, openly condoning the killing. The statement’s originator was Paul Hill.137 Acting on his stated beliefs, Hill in 1994 killed a doctor and a clinic escort, also in Pensacola. Hill’s double slayings prompted some of the same and other signers to issue the Second Defensive Action Statement, condoning those killings138 (Forman, Murphy, Shannon, Hill, Bray, Spitz, 2001; Hedges, Bowermaster, Headden, 1994). In 1997, the group began holding annual "White Rose Banquets’ to honor anti-abortion killers, arsonists, bombers, and other convicted criminals (Reformation Lutheran Church, 2001). In California, the Legislature and Governor Pete Wilson in 1993 enacted Assembly Bill 1097 (Lee) to make it a misdemeanor to intentionally physically obstruct an individual trying to enter or exit health-care facilities. This was followed in 1994 by Assembly Bill 600 (Speier) to create a tort of "commercial blockade" of health care facilities, (Penal Code Section 602.11) allowing private lawsuits against those who "intentionally prevent an individual from entering or exiting a health care facility by physically obstructing the individual's passage or by disrupting the normal functioning of a health care facility." (Civil Cod Sections 3427 to 3427.4.) Nationally, Congress and President Bill Clinton responded to the escalating tactics of the anti-abortion movement by enacting the Freedom of Access to Clinic Entrances (FACE) Act of 1994. (Title 18 U.S. Code, Section 248). At the end of 1994, a shooting rampage in Brookline, MA, left two clinic receptionists

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dead and five other persons -- patients, relatives, friends and a security guard -- wounded (Violence Against Reproductive Health Care Center, 2001). The Massachusetts shootings prompted President Clinton in January 1995 to direct U.S. attorneys throughout the country, the U.S. Marshals Service, and the U.S. Department of Justice to take steps to protect providers and thwart violence. Later that year, the U.S. Supreme Court agreed to permit protective buffer zones around clinics (Madsen, et al., v. Women’s Health Center, Inc., et al, 1994). For the first time, clinics nationally in 1995 reported decreases in every category of violence. There were further reported decreases in 1996, followed by a plateau in most categories but an increase in bombings in 1997 (Violence Against Reproductive Health Care Centers, 2001). That year began with two bombs exploding in an Atlanta clinic. The first, inside the clinic, caused no injuries. The second, which went off outside a few minutes later, injured seven people, including federal law-enforcement officers. It was the first time an anti-abortion terrorist had used a secondary explosive specifically to attack police who responded to the first blast. An off-duty police officer working as a clinic security guard was killed in a Birmingham, AL, bombing in January 1998 that also permanently blinded a nurse (Violence Against Reproductive Health Care Centers, 2001). The most recent known anti-abortion killing also came in 1998 B the shooting of Dr. Barnett A. Slepian in his family home in Amherst, NY. His death spurred then Attorney General Janet Reno to create a National Task Force on Violence Against Health Care Providers (U.S. Department of Justice). Dr. Slepian’s name appeared as a fatality on the Nuremberg Files site within hours of the shooting. Former Californian James Kopp was charged with the murder, and arrested in France in March 2001. Two other persons, including "White Rose Banquet" leader Dennis Malvasi, (Malvesi, 2001) were arrested as accomplices. The most recent known attempted slaying was the stabbing of Dr. Garson Romalis in his medical office in Vancouver, B.C., in 2000, the second attempt on his life (Violence Against Reproductive Health Care Centers). Dr. Romalis’s name is among those on a "Nuremberg Files" Web site that since 1995 has listed the names -- and, in some cases, pictures and home addresses -- of hundreds of abortion providers, their spouses, clinic owners and workers, judges, lawyers, police officers, and prochoice politicians and celebrities (Horsley, 2001). The site reports that 14 persons targeted on the list nationwide have been "wounded," including Dr. Romalis, and eight (The Nuremburg Files, 2001) have become "fatalities" (Horsley, 2001). On March 28, 2001, the U.S. 9th Circuit Court of Appeals in San Francisco ruled the site is constitutionally protected because it does not actually threaten violence. "If their statements merely encouraged unrelated terrorists, then their words are protected by the First Amendment," said Judge Alex Kozinski in the 3-0 ruling. Planned Parenthood and other plaintiffs are seeking a rehearing before the full court.

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5.10 National Data Between 1993 and the present, seven individuals who were employed or volunteered in clinics as doctors, staff, and patient or doctor escorts have been killed in incidents motivated by anti-abortion animus. Several others have been dealt life-threatening injuries (U.S. Department of Justice, 2001). Between 1982 and March 1, 2000, there were 224 reported arsons and bombings of abortion and family-planning clinics. Only 77 were reported solved (U.S. Bureau of Alcohol, Tobacco and Firearms, 2001). No government agency tracks total anti-abortion crime. The National Abortion Federation reports 3,254 incidents of violent crime and disruption against abortion providers from 1974 to 2000 (National Abortion Federation, 2001). 5.11 The American Anti-Terrorism Bill (Patriot Act) (2001) The American anti-terrorism bill (Patriot Act) is similar to Canada’s Anti-Terrorism bill (Bill C-36) in that it is generic and does not actually name groups or causes. But it does define terrorism in such a way that anti-abortion violence could be reasonably covered. Canada’s Security and Intelligence Service (CSIS) already defines anti-abortion violence as “single-issue terrorism” (CSIS, 1998). Since the September 11th terrorist attacks more than 500 letters falsely claiming to contain anthrax were sent to East Coast clinics that perform abortion (Vicini, 2001). The threatening letters were mailed around the same time anthrax-laced letters turned up at media organizations and the Capital Hill office of Senate Majority Leader Tom Daschle. “Last week 146 Planned Parenthood affiliates and 132 affiliates of the National Abortion Federation received letters containing a powdery substance and a message identifying the substance as anthrax” (Kaiser Daily report, October 22, 2001). Many of the letters were signed by the Army of God, a “loose affiliation of extremist antiabortion advocates” that has condoned violence against clinics and abortion providers as a means of putting an end to abortion (Savage, Los Angeles Times, October 20, 2001; Booth, Washington Post, October 22, 2001). Five people have died and 13 others have been infected with anthrax since early October, adding to the nation’s jitters following the September 11th hijacked plan attacks. “The Department of Justice considers Waagner’s letters and all anthrax hoaxes to be serious violations of federal law,” U.S. Attorney General John Ashcroft said (Vicini, 2001). Waagner, who has been on the FBI’s list of 10 most wanted fugitives, escaped from the Dewitt County jail in Clinton, Illinois, in February. He was awaiting sentencing and faced a possible prison term of 15 years to life, according to the FBI (Vicini, 2001). Ashcroft said Waagner has been the subject of an intense investigation by the U.S. Marshals Service, which also placed him on its top fugitives list:

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‘Perpetrators of anthrax hoaxes and those who threaten abortion providers will be prosecuted to the fullest extent of the law,’ said Ashcroft, a staunch abortion opponent who has vowed not to let his personal views affect how he enforces the law ... ‘We are committed to identifying, tracking down and prosecuting those domestic terrorists who threaten the lives and welfare of innocent Americans’ he said (Vicini, 2001). Federal and local law enforcement officials said the letter campaign appears to have been launched by a ‘loosely organized’ group of ‘domestic antiabortion terrorists’ who have no relation to Osama bin Laden. they are taking the threats seriously nonetheless because such ‘home-grown’ extremists have ‘demonstrated in the past the ability to make and deliver bombs and to stalk and kill doctors,’ one federal agent said (Los Angeles Times, October 20, 2001). In late October U.S. officials recognized that “though it is entirely possible that Osama bin Laden’s terrorist network is behind the current wave of anthrax attacks, a local FBI agent Tuesday told emergency officials that radical domestic groups or individuals could just as easily be responsible” (Michel, Buffalo News, October 24, 2001). 5.12 Verbal and Physical Attacks on Abortion Providers in Canada Since 1988, physicians offices and residences have been picketed in Canada to protest the services they provide to women (Province, 1988; Province, 1989; Canadian Medical Association, 1992; Province, 1993 (various articles); Globe and Mail, 1993; Toronto Star, 1995).139 On May 18, 1992, Dr. Henry Morgentaler’s Toronto Clinic was bombed (Canadian Medical Association, 1992).140 Doctors have experience threatening phone calls,141 harassing mailings,142 threatening packages,143 stalking,144 intimidating content on web sites,145 intimidation outside their clinics, and fear as a result of the shootings and stabbings of physicians.146 A number of abortion providers have been shot at and some have actually been killed. Dr. Romas was shot at in1994147 and then was stabbed in 2000.148 Dr. Short 149 was shot at in 1995. Dr. Fainman150 was shot at in 1997. Dr. Slepian151 was shot at in 1998. Documented quotes from anti-abortionists have shown that they promote violence against doctors (Bolan, 1994).152 In October 1999, three anti-gay prolife activists (including Sue Careless, founder of CURE) were arrested outside the Scott Women’s Health Clinic which provides abortions. They said that they were there as journalists to cover the expected arrest of fellow activist Linda Gibbons (CLGRO, 1999:35). In January 1999, Show the Truth activists were charged in St. Thomas with publicly exhibiting a disgusting object (banners with explicit pictures of aborted foetuses) (CLGRO, 1999:35). Despite attempts to have the Criminal Code changed to further penalize those who attack doctors who perform abortions the Canadian government has argued that the present law is adequate to protect abortion providers (Skelton,

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2000:A1-A5).153 5.13 Internet Sites Promoting Sexist Hate Propaganda Evidence of the promotion of what feminists define as hate propaganda can be found on Web sites which sensationalise abortion by showing disturbing pictures of feotuses aborted late in the pregnancy. The grisly stories accompanying the pictures suggest to the audience the gruesome nature of abortion and the harm caused to unborn children154. Pro-Abortion groups in Canada find these Web sites disturbing because they are not regulated and are allowed to proliferate untruths about abortion. The content of the Web sites suggest that abortion is “murder” and no discussion is provided about the legal rights of women, options for pregnant women, or what alternatives might exist. Examples of such anti-abortion Web sites are: AntiAbortion Genocide Awareness Project (GAP), Free the Church, Oracle - Netherlands, and RU486 Registry Web Site: http://www.xs4all.nl/~oracle/nuremburg/index.html. Pro-Abortion Web sites are: Pro-Choice Connection and the Pro-Choice Action Network (Joyce Arthur, ProChoice Action Network: http://www.prochoiceconnection.com/pro-can. One Canadian anti-abortion Web site is linked in the Creator’s Rights Party Pro-Life Christian Anti-Abortion Website. The Church of the Creativity is active in Canada, however the Web site ISP is located in the United States (Barrett, 1987).155 An article available online by Paul Hill, titled “Why I Shot an Abortionist,” provides an account of the murder of an abortionist. Other articles on the website are “Christians in USA Bribed to Accept Legalized Abortion,” “Christians Sucking Baby’s Brains Out,” “Arresting Homosexuals Begins to Make Sense,”156 “God Damned Republicans,” and “God Damned Christians.” One article, titled “Strategy Guaranteed to End Legalized Abortion: Secession via Nuclear Weapons,” argues that citizens should organize to overthrow the American government. The “Nuremburg Files,”157 main page reveals a visual of supposed blood dripping from body parts. The caption reads “Visualize Abortionists on Trial” and the main page promotes the view that readers should “Starve Satan: Stop Abortion.” In the file, abortion clinics are called “Local Abortion Mills,” “Baby Butcher Shops,” and doctors are called “Baby Butchers.” One page lists the names and addresses of physicians.158 There have been attempts to prosecute U.S. anti-abortion Web sites. On March 28th, 2001 a federal appeals court threw out a record $109 million verdict against anti-abortion activists, ruling that a Web site and posters branding abortion doctors “baby butchers” and criminals is protected by the First Amendment. The 9th U.S. Circuit Court of Appeals unanimously said the producers of the material could be held liable only if they authorized, ratified or directly threatened violence (Globe & Mail, 2001:A11). NGOs interviewed for this study argue that the overall effect of attacks on women seeking reproductive health services is to generate fear among individual women and men linked

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with the pro-abortion movement in Canada and the United states. The link between the forms of hate propaganda outlined above and the actual physical assault and murder of physicians and the implied threat to women, reveals the potential deadly nature of supporting pro-abortion activism. The promotion of hate propaganda may be considered minimal if all that it harms is one’s “feelings”; however, when the expression turns deadly, it sends a different message. The intent of threats is clearly to communicate offense and the outcome is limitations on the freedom to express support for women and their legal rights, as well as to limit the provision of legal medical services. The intent is also to incite hatred toward women who assert their right to reproductive freedom. Some feminists believe that the intent is also to promote hatred toward women who refuse to have their bodies controlled and reserve their right to choose. Despite this trend, it may be difficult to empirically prove that a person who demonstrates and obstructs access to abortion clinics promotes hatred under s. 319(2). Approaching this issue from a group libel perspective may alter how social scientists think about the impact of such sexist behaviour. Social scientists may therefore ask how anti-choice hate propaganda impacts on women as a group. Anti-choice activists have recourse to the defences set out in s. 319(2). Doctors who are physically assaulted are protected under the Criminal Code. Given section 319(2)’s relatively brief history (since 1970) and the limited number of prosecutions thus far, there is very little case law dealing with the application of these defences, and none have dealt with the issue of sexist hate propaganda. UPDATE: In May, 2002 a federal appeals court ruled that Mr. Horsley’s Nuremberg Files site and a series of Wild West-style “wanted” posters depicting doctors who performed abortions were actual threats to them, and were not protected by the constitutional right to free speech. At least two doctors were murdered, almost certainly by anti-abortion militants, after being identified on the site. “While advocating violence is protected, threatening a person with violence is not,” the court concluded. Mr. Horsley, a computer consultant who has recently been posting pictures of women seeking abortions on his website calling them “homicidal mothers” is now being challenged in the courts by Planned Parenthood in the U.S. arguing that the targetting of women will cause great anguish, pain and perhaps great danger. “Legal experts say Mr. Horsley’s new tactic will likely survive any court challenge since there is no evidence the photographs constitute a threat” (Wastell, 2002: A14).

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6.0 AGEIST HATE PROPAGANDA This section will report on findings on ageist hate propaganda. For the purpose of this report ageism is defined as discrimination against a person due to their age. 6.1 Conceptualizing “Age” According to the Canadian Oxford Dictionary the category of “age” signifies the length of time that a person or thing has existed or is likely to exist. Discrimination against age is usually conceptualized through the concept of “ageism” which is, “prejudice or discrimination on the grounds of age” (Oxford Dictionary, 23).159 Using this conceptual tool, hate propaganda can be promoted against any age group, however, most commonly those who have low socioeconomic and political status -- youth and the elderly -- are most discriminated against. In Canada, seniors are classified as anyone over the age of 65 years, while youth are those under the age of 18. Again, like the categories “sex” and “sexual orientation” the cultural context in which age is assigned and classified must be considered when assessing what constitutes age or harm toward age. Ageism is a term popularized by Robert Butler, M.D., former director of the National Institute of Aging, to refer to discrimination against older persons. Feminists have pointed out that ageism is much more frequently experienced by women, because of the double standard of aging. Ageism assumes that older people are not real people; not only are their needs fewer, and in some important areas such as sexuality, non-existent; but it is considered that their experience is of little account and is to be avoided. Ageism is also, however, “reproduced by (or created) by older people [who] perpetuate prejudices about, and discriminate against young people” (Blackhouse, 1984:5). Some argue that the distribution of child pornography promotes the idea that sexual abuse of children is acceptable. Unsuccessful bills introduced by Don Boudria between 1988 and 1994 to include “age” under Canada’s hate propaganda provisions had this aim in mind160. In 2000, Mr. Sharpe from British Columbia argued that limiting his right to possess child pornography was an infringement on his freedom of speech and expression (Cudmore, Jack, 2001:A8; Chwialkowski, 2001:A8; Benzie, 2001:A8; Simpson, 2001:A13). As a result, two British Columbia courts struck down Canada’s 1993 law on the possession of pornography on the grounds that it offended the Charter. The Supreme Court of Canada disagreed with this decision and reinstated the law. The court ruled 9-0 that Criminal Code restrictions on possessing child pornography did violate Charter provisions governing freedom of speech, but that these violations were justifiable infringements in light of the need to curtail such material. Six of the nine judges carved out very limited exceptions whereby child pornography might be permitted, but this split was less consequential than the Court’s unanimous agreement that Parliament was within its rights -- and respectful of the Charter -- in its law against child pornography (Simpson,

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2001:A13).161 6.2 Evidence of Ageist Hate Propaganda None of the non-governmental organizations contacted felt they could respond to my questions about information regarding this matter, which seems to imply that hate propaganda directed at “age” is not an issue for them or may not exist. In reviewing the literature, there is evidence that one could argue discrimination against youth and elderly persons exists, however, evidence of hate propaganda directed at elder persons or youth is more difficult to uncover. No indication of hate propaganda directed toward youth and elderly persons could be found on any of the Canadian Web sites. More investigation of this issue is required using the existing definition in the Criminal Code. More in-depth interviews with youth and elderly persons in Canada is required to provide a more context-specific understanding of what they might define to constitute hate propaganda toward these groups. Despite attempts to obtain information on hate propaganda based on either youth or elder status, the data is limited. A review of the Sociological and Criminological abstracts (1986-2000) revealed that the majority of the research on youth and hate is written from an American and European perspective and focuses on youth as perpetrators of hate rather than youth as victims of hate propaganda (Blazak, 1995; Sibbit, 1997; Harlan, 1997; Hess, 1996; Maxwell & Maxwell, 1995; Kube, 1994; Pinderhughes, 1993; Hamm, 1993, 1994; Douglas, 1992; Prutzman, 1994). There is minimal documentation of youth as victims of homophobic hate crime (Stermac, 1993; Herdt, 1995) and racist hate crime (Headley, 1986). Dr. Bernard Schissel suggests there is a link between the social construction of youth as delinquents and moral panics about youth crime and promotion of hatred against youth (Schissel, 1993; 1996; 1997). Schissel’s (1997) exploration of moral panic against youth and juvenile justice in Canada found that moral panic about youth crime has been produced by the media and its affiliations with information/political systems. The construction of the news has belied the facts that juvenile crime has not increased, that most youth crimes are petty, and that increases in official rates of youth crime are by-products of juvenile justice system activities. In contrast to media images, youths are being marginalized, disenfranchised from the democratic process, and disadvantaged in the labour market, while few services are available to them. Schissel concludes there is a need for greater sensitivity to youths’ vulnerability, rather than punitiveness. Marlene Weber’s (1991) research on homeless Canadian youth documents the impact of betrayal and neglect on Canadian children as well as the lack of institutional understanding of and response to factors impacting on runaway youth. In terms of elder abuse, and the potential impact of hate propaganda, Health Canada (McDonald, 2000) has published reports and maintains a Web site on the issue of abuse of elder persons. However, the focus has been on abuse in the context of the family rather than on the structural impact of ageist attitudes promoted in the larger society. While sociologists and

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criminologists acknowledge that bias exists in society generally toward youth and older persons, outward evidence of hate propaganda directed at either of these groups is understudied. 7.0 ABLEIST HATE PROPAGANDA In 2001, Robert Latimer was handed a life sentence for his role in the murder of his daughter, Tracy, who had cerebral palsy and could not walk or speak. In January 2001, the Supreme Court unanimously upheld the mandatory sentence for second-degree murder: life in prison with no eligibility for parole for at least 10 years (Roberts, 2001:A4; Makin, 2001; Murray, 2001; Wong, 2001). While Mr. Latimer claimed that taking Tracy’s life was a mercy killing, and that the medical procedure that Tracy was facing was “torture,”disabled advocates such as the Council of Canadians with Disabilities suggested that a pardon or reduced sentence would send a message that the lives of disabled persons are worth less than Canadians without disabilities. The Council of Canadians with Disabilities also cites the genocidal practices targetting those with mental and physical disability during the Holocaust. The fear has also been expressed that granting special treatment to Mr. Latimer would challenge the legal strictures against euthanasia in Canada and promote hatred against disabled persons. In April, 2001, Danish parliament passed a bill that will allow doctors to euthanise with strict legal restrictions, prompting protests from right to life religious groups (Wallace, 2001). Despite protests, the legislation will no doubt influence other countries dealing with this question. 7.1 Conceptualizing “mental or physical disability”: According to the Canadian Oxford Dictionary, to be disabled, is to have reduced mental or physical abilities either through injury or disease (Canadian Oxford Dictionary, 396).162 A disability may include having a handicap, lacking some asset, quality or attribute, that prevents one from doing something, and an incapacity created by law. According to the Canadian Oxford Dictionary, to be able bodied is to not be physically handicapped, fit, and healthy (Canadian Oxford Dictionary, 3).163 In an ableist society, those who are able-bodied are considered superior to those who are not fit and healthy. For this reason, those who are differently-abled are often discriminated against. Disabled persons are socially constituted as different, not quite as able as “normal” functioning persons, and for this reason are subject to discrimination. Any conceptualization of hate propaganda against this group must consider how Western culture defines disability in relation to able-bodied persons, and how a standard of normalcy is maintained to exclude or promote harm towards those who are different. Differently abled persons or physically challenged persons disrupt the notion that disability is an individual tragedy, and say “we need to reveal it for what it is -- a political designation. We are dis-abled by society not by ourselves or our “dis-abilities”(Spare Rib, 1982).164

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7.2 Extant Research on Disability Hate Propaganda The extant research on “hate propaganda” directed towards Canadians with disabilities is framed through analysis of a discourse of discrimination. The focus in the existing literature is on the discriminatory discourses that operate to exclude persons with disabilities from equal status in Canadian society (Titchkosky, 2001165). Waxman (1991) writing from an American perspective, argues that an essential factor behind the denial of hatred as a motivation for violence against disabled people is that they are not provided for as a viable, separate group in society (Waxman, 1991:185-199). In critiquing Canadian reports (Canada, 1985, 1986), Titchkosky shows how disability is organized as a medicalized and individual matter, and seen as an abnormal limitation and lack of function that some people -- four million Canadians -- “just happen to have.” (Titchkosky, 2001:1). In conceptualizing disabled persons as “people with disabilities” the ongoing process of understanding disability as a social, and thereby complex, political phenomenon is left unexplored. Because the discourse of “othering” is implicated in the governments and indeed Canadians objectification about what to do about “people with disabilities” there is a need to analyse the consequences of the current linguistic formulation of disability. Any discussion of hate crime or hate propaganda therefore must first conceptualize how liberal individualism helps to sustain an ableist-centered society (Overboe, 1999). The effect of exclusion, individualism and a rights-based approach, is the maintenance of a perception that to be able-bodied is to be “normal”. According to Titchkosky, it is this conceptualization which needs to be unpacked in order to understand why including “disability” in the Criminal Code fails to resolve the effects of systemic discrimination. Other writers argue that how disability is interpreted and represented is of primary concern to the resistance of the pathologization and medical version of disability. Gadacz (1994:5) argues that disability is best conceptualized as a relation between people and the environment while Oliver (1990; 1996) suggests that environments may be disabling. Bickenbach,(1993) argues that disability is a policy matter beset by conflicting models of how difference and inequality ought to be addressed. Disability is often constituted from taken-forgranted notions of normalcy (Davis, 1997; Linton, 1998; Thomson, 1997). Disability always appears through narrative in social life and should be examined as such (Corker and French, 1999; Michalko, 1998; 1999, Michalko and Tichkosky, 2001; Mitchell and Snyder, 1997; Titchkosky, 1998; 2000; 2001; Zola, 1982). All of these alternative ways of locating the social significance of disability question the taken-for-granted medical versions of disability, and insist that how disability is interpreted and represented is of primary concern (Titchkosky, 2001:135). The consequence of the medical discourse is that disability is conceived and programmatically treated as an individual trouble and not a public issue. These theoretical perspectives reveal that medical discourse makes disability a personal matter and problem and de-politicizes the language typically used to socially organize disability as “other.”

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7.3 Evidence of Mental or Physical Disability None of the non-governmental organizations contacted provided evidence of hate propaganda as defined by the Code against Canadians with disabilities. This lack of evidence raises the issue of definition and the need for further research on this issue. Council of Canadians with Disabilities frame the issue of discrimination in terms of the compounded issues of workplace discrimination, lack of accessibility, and the experience of disabled Aboriginals and disabled women. The Canadian government reports that in 1991, 4.2 million (16%) of Canadians reported some level of disability (Canada, 1998:11). Aboriginal Canadians are particularly affected by disability, with over 30 percent of Aboriginal persons reporting a disability -- almost double the national average. Canadians with disabilities are more likely to have lower education levels, and to be socially isolated and discriminated against in the workplace. Women and aboriginal persons with disabilities in particular, experience greater disadvantages, reporting higher incidences of unemployment and poverty (Canada, 1998:11). As a result, foremost in the minds of some disabled activists is not the issue of hate propaganda. Feedback from Canadians with disabilities suggest that while the category “mental or physical disability” is included as a prohibited category of discrimination in the Charter and the Canadian Human rights Act, the lack of analysis of systemic discrimination limits their effectiveness. In the context of the Canadian Human Rights Act, discrimination means making a distinction between certain individuals or groups based on a prohibited ground (Kerzner, Baker, 1999). “Disability” is one of the prohibited grounds and “means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.” The Council of Canadians with Disabilities report that inclusion of disability in antidiscrimination legislation is a fairly recent response to the historic disadvantage faced by Canadians with disabilities. Disability is one of the complaints most often cited by complainants to the Canadian Human Rights Commission. The largest number of new complaints to the Commission in 1998, as in the past, were claims of discrimination based on disability. In 1998, 32% of complaints received were claims of discrimination based on disability and the proportion of these complaints has been similar since at least 1995. While some disability based complaints deal with accessibility to facilities, most relate to discrimination in employment (Kerzner, Baker, 1999). The situation of persons with disabilities in the workforce has been described as “abysmal”. Many of the complaints received from persons with disabilities relate to failure to accommodate their needs. The Council of Canadians suggest that systemic discrimination is referred to much more frequently than it is defined. CCD believes that addressing systemic discrimination is the most important purpose of the human rights statute however, because it is assumed that human rights

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is about individual acts of discrimination the Commission attempts to resolve isolated acts of discrimination, without reference to causation or the prevention of future acts. The CCD recommends that an individual act be placed within a broader context and viewed as part of the discrimination experienced historically and collectively by members of a disadvantaged group. Likewise, a remedy which addresses the broader public interest in ending discrimination (i.e. goes beyond resolving the dispute between the immediate parties to a complaint) could be characterized as a systemic remedy. Since the definition of disability was enacted, UNESCO and the World Health Organization have moved to emphasize the social as opposed to medical aspects of the concept. While the core definition does not require change, CCD believe three proposals would assist Tribunals and courts to better understand that it is the discrimination based on disability rather than the degree of disability. The Council of Canadians with Disabilities recommend that Canada should avoid the formal rather than substantive approach to disability recently endorsed by the United States Supreme Court in the Americans with Disabilities Act (ADA). While “disability” is a protected category under the Canadian Human Rights Act persons with disability have major problems with the current system. Critics argue that the Commission cannot prevent discrimination unless it identifies what is discriminatory and since the Commission fails to define systemic discrimination(Kerzner & Baker, 1999). The literature suggests that persons with disabilities recommend individual acts of discrimination -- such as disseminating hate propaganda -- should be placed within a broader context and viewed as part of the discrimination experienced historically and collectively by members of the disadvantaged group. Likewise, a remedy which addresses the broader public interest in ending discrimination (i.e. goes beyond resolving the dispute between the immediate parties to a complaint) could be characterized as a systemic remedy. In a submission to the Canadian Human Rights Act Review Panel (Kerzner & Baker, 1999) the CCD openly criticize the Commission. Despite the inclusion of disability in the Act for more than 20 years, it cannot be said that the legislation has begun to accomplish its goals. While the Supreme Court of Canada has established important human rights principles, the principles have not been implemented in the real world of disability. The late Brian Dickson, urged that the government accept its responsibility for closing the enormous credibility gap by establishing systemic and regulatory mechanisms for removing the barriers which exclude persons with disabilities (Kerzner & Baker, 1999). Solutions proposed by CCD point to raising human rights standards in order to accelerate the process of eliminating discrimination. Substantive recommendations include but are not limited to: ·

identifying discrimination against disabled persons;

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· · ·

addressing systemic discrimination in a broad social context including the experience of disabled persons historically and collectively; A remedy that takes into consideration systemic discrimination should address the broader public interest in ending discrimination (i.e. goes beyond resolving the dispute between the immediate parties to a complaint). Given that the Supreme Court recognizes the impact of discrimination on persons with disabilities as a group, the purpose clause (as set out in section 2) should recognize the existence of systemic discrimination and the Act should be used as a proactive tool to eliminate such discrimination. The purpose clause should be amended to reflect the need to remove all discrimination (including that which is systematic) rather than focusing on “individuals”. It should recognize group disadvantage.

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8.0 CONCLUSIONS AND RECOMMENDATIONS All of the above issues are connected to the question of how far the state should go to regulate hate propaganda and who is in need of protection. However, according to the Criminal Code, none of the above incidents concerning women, children, disabled persons, gays and lesbians could be prosecuted under Canada’s hate propaganda provisions. One problem is the high standard of proof required to prove the harm of hate propaganda. The anti-hate law and the false news law have been used against hate mongers just three times. Legal experts believe that convictions would be very difficult to obtain because the legislation is so heavily weighted in favour of the accused. Under the hate propaganda provisions, unlike other criminal legislation, intent cannot be inferred merely from the act itself but must be demonstrated as having been wilfull. Under the false news law, it is not enough to show that the material disseminated was false -- the Crown has the added burden of proving that the accused actually knew the material to be false. As Manuel Prutschi notes, “Canada’s laws against the vilification of ethnocultural groups are very mindful of freedom of expression and the rights of an individual accused” (Prutschi, 1988:2). The overview of the psychological and social effects of hate propaganda on racial minority women, sexual minorities, and disabled suggest that victims of hate propaganda experience the following: 1) impact on self worth, 2) avoidance, 3) passing or covering identity in order to be accepted in the dominant culture, 4) a sense of danger and fear of discord over the issue of their identity, 5) the sense that they are not human beings or persons under the law, 6) the sense that they lack real equality specific to their group, 7) are ‘othered’ through a liberal individualist discourse that medicalizes and further pathologizes them and, 8) silence. In response to a request for information on evidence of hate propaganda against age, sex, mental or physical disability, and sexual orientation, limited evidence was obtained about hate propaganda on the basis of age and disability. Information on hate propaganda based on sexual orientation, sex and ability was provided by non-governmental organizations. This qualitative data provides information on the way in which groups perceive hate propaganda, and the information being collected by those working with community groups in Canada. Sexist hate propaganda has been conceptualized through the lens of civil rights and systemic discrimination which it is argued supports women’s inequality. Feminist groups make the link between pornographic material and sexism, arguing that pornography symbolizes how the larger culture views and treats women. This translates into second class citizenship in the form of lower socio-economic status and political power. Sexist hate propaganda is seen to be promoted via intimidation, harassment, and threats toward health care providers who provide abortion services. Their aim is to inspire fear and to incite hatred against women generally. The major themes for non-governmental organizations working on justice for sexual

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minorities is the use of criminal defenses of provocation to diminish the seriousness of hate crimes against gay men and lesbians in Canada. Another theme which evolved from the review of literature collected by non-governmental organizations is the print media in Canada, which documents views promoting hatred and inciting hatred toward gay men and lesbian women on the basis that “homosexuals as a whole are depraved, diseased, anti-social, criminal, and a danger to society. While sexual orientation is not a prohibited ground of discrimination under Canadas Criminal Code, the evidence to date suggests that an abundant amount of heterosexist hate propaganda gets promoted as freedom of speech in Canada. Drawing from research conducted by non-governmental organizations working with the disabled in Canada, their position is that the Charter of Rights and Freedoms guarantees equal benefit and protection of the law and prohibits discrimination based on physical or mental disability. In their opinion, all other legislation must be brought into line with the Charter, including ‘disability’ under the Criminal Code. Because the Human Rights Commission has not met the goals of the disabled community in terms of inclusion and accessibility, change in the response by the Commission is required. This change entails a focus on systemic discrimination in contrast to the present focus on individual acts directed toward disabled persons. Future research on hate propaganda against the unprotected groups sex, age, mental or physical disability, and sexual orientation must be conceptualized through a lens that takes the experience of victims into consideration. To obtain the best empirical evidence on hate propaganda directed toward disadvantaged groups the research must integrate diversity with both qualitative and quantitative research approaches (Mertens, 1998). Research must focus on improving methods of inquiry by integrating the perspectives of those who have experienced oppression in Canadian society. This means drawing on the writings of feminists, minorities, and people with disabilities who have addressed the issues of power and oppression and their implications for research methodology. The research must also be consistent with the standards set out by the Social Sciences and Humanities Research Council of Canada on the treatment of the sexes in research (Eichler & Lapointe, 1985). This would include an awareness of sex as a social variable in research through the: (a) identification of the research project; (b) the formulation of research questions and theoretical frameworks; (c) research methodology; and, (d) interpretation of findings. Eichler and Lapointe (1985) provide guidelines for the use of appropriate language including a discussion of the logic of language, the use of generic terms for generic purposes and avoidance of sex-specific terms for generic purposes, the use of sexspecific terms for sex-specific situations and avoidance of generic terms for sex-specific situations, and the parallel use of terms for parallel situations. The findings of this report suggest there is a sound conceptual basis for conducting empirical research on hate propaganda against groups not currently protected by the Criminal Code. Investigation reveals there is reasonable primae facie evidence of hate propaganda against the expanded groups, in particular against women and sexual minorities. A review of the extant

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research on hate propaganda suggests that research to date has concentrated on the actions of hate propagandists, the effects of such propaganda on targetted communities, the outcome of legal cases, and the effectiveness of laws and legislation. Definitions and measures of hate propaganda employed in previous research have been influenced by United Nations and domestic responses to racist, ethnic, national, and religious hate propaganda and genocide. The strength of previous research is in its documentation of racist hate propaganda and genocide framed through oppositional libertarian and egalitarian stances. Since racist hate propaganda has traditionally been conceptualized through the lens of egalitarian or freedom of expression discourses, the expanded groups have been forced to prove their relevance through the measure of harm. The caselaw and international and domestic legislative responses to hate propaganda against the expanded groups is slowly evolving in response to human rights jurisprudence. Criminal sanctions have had limited impact on Canadian society. In order to be effective, alternatives to criminal sanctions in the form of education, social policy and human rights must be supported by both non-governmental organizations and government. Feedback from non-governmental organizations indicate that women and sexual minorities are more active in documenting and organizing against hate propaganda. The psychological impact of such hate propaganda suggests that the symbolic gesture of inclusion in the Code could remedy feelings of worthlessness and exclusion, which may result from this form of hate-activity. Alternatively, extra-legal approaches which concentrate on education and community activism may be equally effective in counter-acting negative attitudes. While human rights legislation responds to individual complaints of discrimination, there is limited attention given to sensitivity training which could work to challenge stereotypes. The future conceptual and methodological grounds for researching hate propaganda on the basis of sex, sexual orientation, age and disability should evolve from those most affected. Because the focus of international responses has been on racial and religious hate propaganda, there have been limited attempts to respond to the experience of the expanded groups. A review of the literature and feedback from community groups points to the need for a grounded approach to research beginning with the experiences of victims. Definitions of hate propaganda and assumptions underlying the research process should be evaluated with an eye to grassroots knowledge. Research on hate propaganda needs to begin from the premise that hate propaganda is a social rather than an individual problem. This approach clashes with the liberal legal practice of punishing individuals. Future research therefore needs to begin by acknowledging the underlying social and psychological forces that sustain cultures of violence in which hate propaganda thrives. For over thirty years North American feminists have attempted to have violent pornography recognized as sexist hate propaganda, yet their claims have been diminished by freedom of expression arguments. While there has been recognition of sexist hate propaganda in obscenity cases, feminists argue that the issue needs to be conceptualized through the lens of

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equality rather than framed through the obscenity provisions of the Criminal Code. Sexual orientation hate propaganda has largely been considered to be acceptable due to social acceptance of hatred toward sexual minorities. Buttressed by religious ideologies, various groups have used the Charter to defend their discriminatory views about sexual minorities such that research in this area must begin from an awareness of the historical context in which Canadian society has allowed such hate propaganda to thrive. Equally important is future research on hate propaganda directed toward Canadians with mental and physical disabilities, acknowledging the impact of discourses which work to “other” them. Racist hate propaganda directed toward first nations persons has been understudied in Canada. None of the Criminal Code cases to date has involved a complaint of this nature despite that much evidence exists of such anti-aboriginal sentiment. While it is important to document the existing hate propaganda directed toward the expanded groups, much needed recognition should be given to the study of hate propaganda directed toward first nations persons. Finally, while hate propaganda directed toward seniors and youth does not seem to be as insidious as that directed toward women, sexual minorities and racial minorities, future research in this area should begin with a recognition of the impact of ageist and ableist attitudes. Summary of Recommendations: The following recommendations were made to support the further study of evidence of materials that would constitute hate propaganda against expanded groups on the basis of sex/gender, age, mental or physical disability, and sexual orientation. Research An emerging movement within research is to focus on the meaning of social justice and fairness within research, with the consequent opening of doors to the emancipatory paradigm of social inquiry for researchers (Mertens, 1998). As Green (1994) recognizes, “what importantly distinguishes one evaluation methodology from another is not methods, but rather whose questions are addressed and which values are promoted” (Greene, 1994:533). This objective is supported by the Research and Data Collection Working Group and other working groups attending A Call for Action: Hate and Bias Activity Roundtable, June 22-23, 2000 organized by the Department of Heritage Canada. Many of the recommendations made at the roundtable are applicable to conducting emancipatory research on hate propaganda.166 For the purpose of making recommendations I incorporate findings from the research conducted for this report as well as the research conducted by experts working in this area in Canada. In doing so I recommend going beyond a conceptual framework limited by the Criminal Code definition of hate propaganda. If the Criminal Code definition of hate propaganda is only used this would exclude hate propaganda that is not ongoing and intentional and based in religious belief, in particular when concentrating on sexual orientation.

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The difficulties of using a restrictive definition as outlined in the Code was addressed by those attending A Call For Action: Hate and Bias Activity Roundtable. Participants believed that using a limited Criminal Code definition precludes an examination of a wide range of hate propaganda and hate bias activity. I would therefore recommend broadening the parameters in order to investigate hate propaganda experienced by the expanded groups more generally to take into consideration victim experiences as well as the response of communities and social agencies such as police, attorneys general, justice of the peace, victim assistance programmes, and lawyers. A review of the literature reveal that researching hate propaganda experienced by the expanded groups involves more than simply their exclusion from the existing Criminal Code definition. The existing Criminal Code’s high standard of proof is seen to be a barrier. Also at issue is the lack of police and public education about what constitutes hate propaganda as a form of hate bias activity and why it is essential to curb it. While it is true that the focus of this report is not changing the Code previous debates have recommended slight alterations. ·

Research on hate propaganda directed toward any of the expanded groups should locate the development of hate propaganda provisions historically, politically, legislatively and socially. Future research in this area therefore needs to recognize the historical context in which hate propaganda laws developed in Canada. This includes the reasons for state intervention and the political context in which protected categories were first recognized.

·

Future research must evaluate the various attempts by political organizations to obtain inclusion. As well, researchers need to assess the impact of the inclusion of unprotected groups in terms of the freedom of expression provisions under the Charter. Can the inclusion of the expanded groups withstand Charter challenges? Given the limited prosecutions to date, this issue is hardly a reason to exclude the expanded groups from protection. Indeed, the inclusion of the expanded groups may merely provide symbolic recognition that Canadians do not tolerate hate propaganda toward groups already protected under the Charter.

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Future research must consider not only the impact of hate propaganda on individuals but the impact on the larger community. When assessing the impact of hate propaganda on target populations, individual rights are inseparable from group rights. Groups experience degradation and suffering when individuals are harmed (Kallen, Lam, 1993).

·

It is essential that research conducted on hate propaganda recognize the importance of quantitative and qualitative data, and both be incorporated in furthering the research of community groups, academics and official government sources, such as police agencies who document incidents of hate propaganda. An approach that accounts for both quantitative and qualitative data allows for a broad-based research response to hate and

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bias activity. ·

Data should be collected on hate propaganda and bias activity (more broadly defined than hate crime) experienced by sex, age, mental or physical disability, and sexual orientation, to ensure that a total picture exists.

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Definitions of hate bias activity constructed by experts should guide research. To specify the type of activity and expression that should be documented, the following definition of a hate or bias incident which includes both criminal and non-criminal hate bias activity: A hate or bias incident is an occurrence that, while not criminal in nature, does have an effect of discriminating, stereotyping, excluding, and/or harassing a person based on that persons race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor. Presence or activity of hate groups is included in this category. Definitions of sex, age, mental or physical disability and sexual orientation should be contextualized in their social context. This would include an assessment of the historical social construction of these categories, their meaning for individuals, and the impact of these categories on self perception.

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A broad definition should be used to guide the collection of data: A hate or bias incident is not necessarily a hate crime (as defined in the Criminal Code). For that reason, priority should be given to community groups to collect and report data on hate propaganda against race, religion, colour, ethnicity, sex, age, mental or physical disability, and sexual orientation. Such data is likely to go beyond what the law defines as a hate crime and more accurately reflect what a hate incident is in a given community. Research should be conducted on whether the definition of hate propaganda in the Code is too restrictive. Based on feedback from community groups, the legalistic definition of hate propaganda currently used is too restrictive. Definitions of hate-biased activity used by community groups are generally much broader, encompassing a wide range of hate biased activity from hateful expressions to actual physical attacks and intimidation.

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To assess the extent and impact of hate propaganda on unprotected groups a bibliography of hate and bias research studies (including quantitative and qualitative studies) by government, academics and community groups, should be compiled. The bibliography would include past studies, current projects, as well as reference to studies on policy issues related to the issue of hate propaganda directed toward the protected and unprotected groups (sex, age, mental or physical disability, and sexual orientation).

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Research should be conducted on what cooperation there is between and within provinces in sharing data and information on hate propaganda incidents. The research should also assess whether there are provincial and federal infrastructure in place for dealing with the issue of hate propaganda and hate bias activities.

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·

Given the participant’s confusion over what constitutes a hate crime and what constitutes hate propaganda, identified groups need to be redefined to address inconsistencies between sections 718, 318 and 319.

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Given that one of the objectives of the report is to provide information from the expanded groups and the extant literature on alternatives to the Criminal Code Cohen (2000) suggests two options for change: challenging the constitutionality of the Criminal Code and revisiting group libel. Future research should focus on the logistics of both of these two options.

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The operational definitions used in assessing harm need to be examined to assess the diversity and range and how these definitions impact on findings.

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Symposia: Experts working on the issue of hate propaganda in Canada should work together to: exchange ideas and data on the impact of hate propaganda on minority groups, assess the impact of adding in groups to the Criminal Code, and evaluate victimimpact statements from victim groups, with the aim of providing recommendations to the Minister of Justice. This would help to develop research networks.

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Given that one of the objectives of the report is to review alternatives/limitations to criminal sanctions, experts from the Hate Bias Activity Roundtable recommend that a catalogue should be compiled to disseminate models of community responses to hate propaganda across Canada. The catalogue would enhance the sharing of information and the development of strategies. It would also help to identify gaps in research data, definitions of hate propaganda, and programs.

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In terms of reviewing alternatives/limitations to criminal sanctions NGOs recommend the impact of making technical changes to the Criminal Code should be studied, including changes to the requirement of wilfully and the attorney generals permission to proceed with a case. The high standard of proof required to prosecute an individual or group under Canada’s Criminal Code has meant that only the most heinous crimes have been caught by the legal net. The existing standard of proof suggests that including sex, age, mental or physical disability, and sexual orientation, will not lead to an increase in cases. Given the broadening of International Covenants to recognize harms to women and in some countries sexual minorities, it seems logical for Canada to comply to with the Charter or revisit the issue of group defamation.

Human Rights Commissions ·

A part of the process of reviewing alternatives/limitations to criminal sanctions involves

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investigating the effectiveness of present limitations to legal responses. Human rights commissions should create a tracking and information-sharing system on hate and bias activity with the aim of sharing information on cases involving hate propaganda. ·

Research should be conducted on the response by Human Rights Commissions to sexist, racist, homophobic, ageist, ableist hate propaganda. While Human Rights Commissions are mandated to respond to individual complaints, and do not consider the impact on the wider group, rejection of complaints of hate propaganda should be documented to assess whether Human Rights Commissions are able to adequately catch incidents which cannot be prosecuted under the Criminal Code.

·

Research could be conducted on cases that are rejected by Human Rights Commissions to ensure that processes are in place which are sensitive to complaints and receptive to the type of problems facing unprotected victims of hate propaganda. Research should be conducted on how to develop a national strategy on how to deal with hate and human rights violations that do not go through the criminal justice system.

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Research should be conducted on (given cutbacks to staff) on whether Commissions have a process in place that is sensitive to complainants and receptive to the issues facing those who put forward complaints about hate propaganda. Are there alternative forms of complaint for those whose cases are not accepted by the commission? Are complainants unduly pressed to go through a mediation process? Do commissions track the outcome of and implications of key cases involving 13(1)?

Attorney General ·

There is a huge gap in our knowledge of how much hate propaganda exists in Canada. Research should be conducted on cases which have been rejected by Attorneys General, the basis for the rejection, and whether any cases were brought forward by women, youth, older persons, differently-abled persons, and sexual minorities. Included in this research should be the assessment of how many reports of hate propaganda incidents are made to police, how these cases are responded to, and how many times complaints have been lodged by any of the unprotected groups. To what extent do police document such complaints? The aim is to assess the extent to which hate propaganda experienced by the expanded groups fall through the cracks.

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Research should be conducted on the effectiveness of the policy of the need for the consent of the attorneys general to prosecute hate and bias crimes. What is the effect of requiring this consent on target groups and excluded groups? If consent is necessary, research should be conducted on whether it is possible for the provincial Attorneys General to reduce the response time of Crowns.

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·

The symbolic nature of anti-hate propaganda legislation is suggested to be effective in signalling to hate mongers that Canada does not tolerate hateful expression. Prosecutions by the Canadian Human Rights Commission, the CRTC, and the Government of Canada suggest that the most heinous acts will be caught by Canadas legislative framework. Future research should concentrate on whether groups currently protected see the present legislative framework to be effective, what changes they would recommend, and whether the expanded groups would impact on their protection.

Expanded Groups ·

American and Canadian research on the harm of pornography suggest that pornography promotes hatred of women. Using the same standard which is used to measure the harm of racist hate propaganda, research should be conducted on the effect of pornography on women as a group. Can the same standard used to assess the effect of racist hate propaganda be used to assess the impact of sexist and degrading imagery on women? If not, why not? In Canada the same measure used to assess racist hate propaganda has not applied to sex. A double standard seems to exist. How does this double standard impact on conceptualizing and measuring sexist hate propaganda?

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Feminist groups argue that protests against abortion providers that work to prevent access to reproductive services is an example of hate propaganda directed toward women and professionals. The murders of at least 3 doctors in the last decade strongly suggests that a link exists between the anti-abortion movement and attempts to prevent abortions. Experts in the area of reproductive rights should be surveyed to measure the impact of protests on health care workers, clients, and the perception generated in the public. What is the link between attempting to prevent women from accessing reproductive services and the promotion of hate propaganda against women?

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Tracking of hate propaganda against sexual minorities should be conducted through community groups. There is a huge gap in the research on sexual minority hate propaganda in Canada. The research presented in this report documents hate propaganda against sexual minorities. The research shows that much of the expressed views would not be defensible under the Criminal Code provisions. Several precedent setting cases have established that sexual orientation is an analogous ground within the equality provisions in the Charter. Canadas Human Rights Commission has recognized sexual orientation is a category in need of protection. The hateful language directed toward sexual minorities indicates that there is a need to symbolically protect this group from harm.

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The research on hate propaganda directed toward age is limited. While the literature

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suggests that this form of hate propaganda exists, it was difficult to unearth evidence for the purposes of this report. For this reason, it is suggested that a definition of hate propaganda directed toward age consider the social construction of the category of age, including a recognition of ageism in the cultural designation of youth and older persons. ·

Research conducted on differently-abled persons must consider the social meaning accorded to definitions which are used, and the historical context in which this group has been othered. This includes an understanding of how differently-abled persons are conceptualized in contrast to able-bodied persons.

·

This report documents the way in which ‘sexual orientation’ has been defined and points to literature and legal cases. It has been claimed that homosexual sexual orientation means (among others) pedophilia, a threat to humanity, disease, gender-confused, and a threat to societal values. Canadian caselaw has defined gay and lesbian persons as those who have a preference for those of their own sex. Despite this recognition, hate-mongers continue to attempt to redefine the commonly held definition in the Charter and the Canadian Human Rights Act. Future research which conceptualizes sexual orientation must consider the broader social and historical context in which gays and lesbians continually experience homophobic hate propaganda.

·

Since youth and elder input was minimal in this research project, there is a need for more research on the experiences of youth and older persons about their experiences of hate propaganda. More youth involvement is needed in understanding the forms of hate propaganda experienced by this group. As well, more involvement is needed from seniors groups about their awareness of hate propaganda.

·

In order to build on the research conducted by the Cohen Commission future research on the social psychological effects of hate propaganda on members of the expanded target groups and alleged perpetrators, should focus on four factors 1) The susceptibility to pseudo-logic, unwarranted generalizations, and circular argument; 2) The declarative effect of legislation with regard to attitudes toward crimes of violence and slander; 3) The effects of legislated norms upon violent or slanderous behaviour; 4) The effects of social support, either legal or informal, in minimizing the harmful consequences of hate propaganda for the intended and unintended victims (Cohen, 1966).

·

In feminist research on pornography the group harm argument is used. The evidence reveals a causal connection between violent pornography and violence against women and the women’s community. The inclusion of sex as a protected category in sections 318 and 319 of the Criminal Code could provide support for this claim. The Butler decision establishes the harmful nature of violent pornography and the impact of this type of pornography on the way men view women, and the ways that women see themselves.

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Protecting sex from hate propaganda would establish in law a recognition of harm already established in Butler. Given the problems of proving group harm in the case of pornography, it has been suggested that the concept of autonomy may provide a more suitable foundation for regulation. With the inclusion of sex as a protected category in sections 318 and 319, the offense of incitement to sexual hatred might serve as a model for legal constraints on violent pornography (Easton, 1994). Within this conceptualization violent pornography must be distinguished from erotica (Busby, 1999; Johnson, 1999). ·

Given the evidence of hate propaganda directed toward transgendered persons, the research should be extended to the experience of transgendered persons who may be targetted based on their gender orientation (Namaste, 1993;1995).

·

Future research must consider the fact that despite recent legal recognition of same-sex relationships and family status homophobia is largely sanctioned by the state. Research on the psychological effect of sexual orientation hate propaganda reveals that homophobia is firmly structured in society, so that it is the individual and combined effect of these interconnected tools of homophobia, and not the mere pluralization of individual defamation or libel, that ultimately justifies state sanction of anti-gay hate propaganda (Cohen, 2000:76).

·

Future research needs to explore the range of physiological and psychological traumas experienced by members of sexual minorities, all of which exacerbate feelings of vulnerability and isolation (Cohen, 2000:74). Second, research should extend beyond the target group to assess the detriment to freedom of expression, freedom of association, and democracy. Third, research needs to explore how sexual orientation hate propaganda reinforces (and is reinforced by) the other tools of homophobia, which include harassment, gay bashing, overt and covert discrimination, extortion, stigmatization, murder and genocide. Finally, research must focus on the impact of exclusion; the absence of protection from hate propaganda particularly in jurisdictions such as Canada, where other target groups receive protection (Cohen, 2000:74-75).

·

Research needs to consider the social and historical context in which hate propaganda Thrives. Research on hate propaganda directed toward the expanded groups must take into consideration the systemic nature of hatred in Canadian society (McNamara, 1994:28). Focusing on the individual experience of hate propaganda without a recognition of the broader social and historical context minimizes both the depth and complexity of hate in Canada (Renke, 1994:837). By only focusing on events which fit the Criminal Code definition, researchers risk obtaining only a limited understanding of the range of hate-motivated activity in Canadian society.

·

Research on hate propaganda against the expanded groups should be conducted by non-

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governmental organizations who are best situated to document instances of hate propaganda. Groups that work most closely with women, gays and lesbians, youth, older persons, and differently abled persons should be supported in their efforts to gather data on hate propaganda for the purpose of mobilizing responses. ·

Research should be conducted on how communities respond to hate propaganda. How do feminists, youth, older persons, the differently-abled and sexual minorities work within their own communities to counter-act the effects of hate propaganda? Are their methods effective?

Law Enforcement · Research on the police response to hate propaganda experienced by the expanded groups is required in order to understand barriers to reporting. In terms of the alternatives/limitations to criminal sanctions NGO’s talked about the need to research the response by criminal justice personnel. While communities believe that sexist, ageist, ableist, homophobic and heterosexist hate propaganda exists and has an effect on individuals and groups, it is difficult to do anything about it without action. As Suriya noted (1998) without broad-based consensus in the Canadian Parliament and society at large there will continue to be deep-seated and fundamental conflicts among groups within Canadian society at the level of the law enforcement process itself (Suriya, 1998:67). The non-enforcement of section 319(2) seems to be the normative consensus. Others have pointed to the role of the Attorneys General in deciding whether to prosecute, and the apparent lack of judicial support for the hate crime provisions (Suriya, 1998:68). Research needs to be conducted therefore on lack of action by law-enforcement personnel. Research needs to be conducted on attitudes among the judiciary and Attorneys General. Research should be conducted on police resistance toward Implementing Bill C-3: Some suggest that even if there were an increase in the number of prosecutions and the protection of expanded groups, that there would not necessarily be a significant increase in convictions (Suriya, 1998:70). It may be possible that Attorneys General have prosecuted hatemongers under section 319(2) whenever a conviction is most promising. Some may choose not to prosecute based on the belief that the case will promote the views of hatemongers. Additionally, the cost of prosecuting is high, as evidenced by the Keegstra case. If it is not the wording of Bill C-3 or the exclusion of the expanded groups that prevents prosecution, then it is suggested that it is the “on going competition over the enforcement and legitimacy of Bill C-3 provisions which prevent convictions” (Suriya, 1998:72). If this is so, then research must be conducted on resistance toward implementing Bill C-3 provisions at the level of law enforcement. What are the attitudes among police personnel toward hate propaganda occurrences which target the protected and unprotected groups? ·

NGO’s recommend research be conducted to assess the procedures and resources used by

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police services to respond to incidents of hate propaganda experienced by the expanded groups. The policies and procedures used by various law enforcement agencies in responding to hate propaganda should be assessed and compiled in a catalogue. ·

NGO’s recommend that research needs to be conducted on why police officers have difficulty identifying hate propaganda and why identified crimes are not documented and processed through the criminal justice system.

·

NGO’s recommend that research needs to be conducted on police attitudes and perception of hate propaganda and hate-motivated activity: It has been noted that police forces and intelligence favour information and resources on hate groups even though individual random acts of hate are a much larger problem. Research should be conducted on training strategies and resources on hate propaganda and hate bias activity to let enforcement and community agencies know what is available and what is being done.

·

NGO’s recommend research needs to be conducted on the role of police in referring victims of hate propaganda to community agencies and victim assistance groups. Are police referring victims to appropriate support services?

·

NGO’s recommend research be conducted on whether police-community liaisons contribute to reporting hate propaganda incidents. Would better integration of community policing help eliminate some sources of under-reporting?

International Response ·

Matsuda (1995) argues for an international standard on hate propaganda. Research on the feasability of implementing an international standard on hate propaganda should be conducted. The concept of group defamation has been used in Canada to examine the harm to groups. This concept attempts to go beyond conceptualizing individual harm to group-based harm and various recommendations have been made to change the Criminal Code (Lawlor, 1985).

·

Future research should consider the state of existing anti-bias workshops and programs in Canada and internationally to assess whether they include an analysis of sexist, racist, homophobic, ageist, and ableist hate propaganda. Through research, an appropriate methodology could be determined for evaluating anti-bias workshops and training programs for those involved in anti-bias and anti-hate work.

·

Experts need to assess international and national legislative responses to hate propaganda to assess models implemented elsewhere, groups protected in other countries, and whether International Covenants protect women, youth, older persons, the differently

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abled and sexual minorities from hate propaganda. ·

Given that several possible models exist for reporting and responding to on-line hate propaganda, support should be made available to both survey and catalogue key international and domestic responses to internet hate propaganda and to evaluate various models.

Internet ·

A study of existing clearinghouses, supported by Web sites, should be conducted to study the existing data and research on hate propaganda, in particular that directed at the expanded groups.

·

A study of internet sites in Canada promoting hatred should be conducted to assess the amount of hate propaganda disseminated against women, youth, older persons, differently abled persons and sexual minorities.

Appointment of a Special Committee ·

In order to build on the work that has been conducted in this area since the Cohen report, the Minister of Justice should appoint a Special Committee on Hate and Hate Propaganda to assess the state of organized hate groups and their impact on minority populations since 1966. The Committee should be representative of diverse communities.

·

A Special Committee on Hate and Hate Propaganda should be formed to facilitate research on the impact of hate propaganda on unprotected groups -- specifically, age, sex, mental or physical disability, and sexual orientation, or ad hoc groups and make recommendations.

·

A Special Committee on Hate and Hate Propaganda should be formed to facilitate research on the effectiveness of the existing law in protecting identifiable groups from hate propaganda, keeping in mind the question of whether extending the prohibited grounds of discrimination to include -- age, sex, mental or physical disability and sexual orientation – will be effective.

·

A Special Committee on Hate and Hate Propaganda should be formed to consider the impact of including the current unprotected groups as identifiable groups in need of protection under the hate propaganda provisions of the Criminal Code.

·

A Special Committee on Hate and Hate Propaganda should be formed to study the persons and groups involved in Hate Propaganda activities in Canada, on the basis of sex,

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age, mental or physical disability and sexual orientation. This would include an investigation of the hate literature known to be distributed in Canada, via published and unpublished materials, leaflets, pamphlets, posters, television and radio broadcasts, internet Web sites, and any other means of communication. Samples of Hate Propaganda in Canada should be provided. ·

The Special Committee on Hate and Hate Propaganda should be formed to study private members bills related to the issue of hate propaganda presented to the House of Commons since 1966, to assess reasons given for not expanding the protected groups.

·

A Special Committee on Hate and Hate Propaganda should be formed to study hate propaganda materials and their distribution, targetting sex, age, mental or physical disability and sexual orientation.

·

A Special Committee on Hate and Hate Propaganda should be formed to study Hate and hate propaganda in other countries as well as United Nations documents, to assess the scope of the problem and its impact.

·

The Special Committee on Hate and Hate Propaganda should be formed to study the social-psychological effects of hate propaganda against the identifiable groups and on the basis of – age, sex, mental or physical disability and sexual orientation, -- and the role of law and education as controls.

·

The Special Committee on Hate and Hate Propaganda should be formed to study the Condition of the Law in Canada and elsewhere to assess whether and how other countries have extended their protections to groups based on age, sex, mental or physical disability and sexual orientation.

·

The Special Committee on Hate and Hate Propaganda should designate a researcher to conduct research on how many requests have been made to Attorneys General since 1970, the grounds for not proceeding with complaints, and whether any groups have attempted to establish that hate propaganda has been directed toward age, sex, mental or physical disability, and sexual orientation. The aim is to collect data on the extent of hate propaganda directed at the protected and unprotected groups since the law was implemented in 1970.

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References Abella, Irving and Harold Trooper. None is Too Many. Toronto: Lester and Orpen Dennys, 1982. A Call For Action: Hate and Bias Activity Roundtable. Prepared for the Honourable Hedy Fry, P.C. M.P., Secretary of State (Multiculturalism and Status of Women), July 2000. Adams Otis, Ginger. “Pro-Choice groups seek protection from domestic terrorists: The homegrown anthrax blitz.” Village Voice, Friday, October 19, 2001. Http://www.villagevoice.com exclusive Aird, Elizabeth. November 10, 1994. “The shooting of Dr. Romalis.” Globe and Mail. Allen, M., et al. “A meta-analysis summarizing the effects of pornography: Aggression After Exposure.” Human Communications Research. 22(2):258-283. (1995). Amnesty International. Crimes of Hate, Conspiracy of Silence: Torture and Ill-Treatment based on Sexual identity. London, United Kingdom: Amnesty International Publications, 2001. Amnesty International. Breaking the Silence: Human Rights Violations Based on Sexual Orientation. Amnesty International UK Section, 1997. Amnesty International. Broken Bodies, Shattered Minds. Amnesty International Publications, 2001. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. Washington, D.C.: American Psychiatric Association, 1994. Anand, Sanjeev. Expressions of Racial Hatred and Criminal Law: Proposals for Reform. Criminal Law Quarterly. 40: 215. (1997). Anand, Sanjeev. Expressions of Racial Hatred and Racism in Canada: A Historical Perspective. 77:181 (1998). Anti-Abortion Genocide Awareness Project (GAP), Free the Church, Oracle - Netherlands, and RU486 Registry Web Site: http://www.xs4all.nl/~oracle/nuremburg/index.html. Anti-Defamation League. Poisoning the Web: Hatred On-Line -- An ADL Report on Internet Bigotry, Extremism, and Violence. New York: ADL (1999): Hate Watch: http://www.hatewatch.org

144

Anti-Defamation League. Statement of the Anti-Defamation League On S. 1529 - The Hate Crimes Prevention Act (HCPA). Anti-Defamation League (July 8, 1998): [online] http://www.adl.org/issue_government/adl_on_hate_crime_prevention.html Anti-Defamation League. Hate Crimes Laws. Penalty Enhancement and the Inclusion of Gender. Anti-Defamation League, 1999: [online] http://www.adl.org/99hatecrime/penalty.html. Anti-Defamation League. Constitutional Challenges to Hate Crimes Statutes: Free Speech Challenges: R.A.V. and Mitchell. Anti-Defamation League (ADL) (1999). [on-line] http://www.adl.org/99hatecrime/constitutionality.html Anti-Defamation League. Hate Crimes Laws: Federal Initiatives: The Hate Crime Statistics Act (28 U.S.C 534). Anti-Defamation League (ADL (1999): [online] http://www.adl.org/99hatecrime/federal.html. Anti-Defamation League. Hate Crimes Laws: Current Status of Federal Hate Crime Awareness and Training Initiatives. Anti-Defamation League (ADL), 1999 [online] http://www.adl.org./99hatecrime/current.html Anti-Defamation League. “Fred Phelps and the Westboro Baptist Church: In their own words.” Anti-Defamation League (ADL), 1999 [on-line]. http://www.adl.org/special_reports/wbc/default.htm Anti-Defamation League. Hate on the Internet: The Anti-Defamation League Perspective. Statement of the Anti-Defamation League on Hate on the Internet before the Senate Committee on the Judiciary, September 14, 1999. Anti-Defamation League. Hate Crimes Laws. Other Means of Addressing Hate Crimes. AntiDefamation League, 1999: [online] http://www.adl.org/99hatecrime/other.html Anti-Defamation League. Hate Crimes Laws. Charts and Graphs. Anti-Defamation League, 1999 [online] http://www.adl.org/99hatecrime/provisions.html Anti-Defamation League. ADL Hails Historic Senate Approval of Federal Hate Crime Measure. New York: Anti-Defamation League, June 20, 2000. [online] http://www.adl.org/presrele/hater_51/3630_51.html Anti-Defamation League. ADL Calls for House Action to Close Federal Hate Crime Gap. Washington, D.C. Anti-Defamation League, July 19, 2000. [online] http://www.adl.org/presrele/hater_51/3643_51.html

145

Anti-Defamation League. ADL Expresses ‘Deep Disappointment’ as Hate Crimes Measure is Stripped from Defense Bill; League Vows to Fight for Passage before Congress Adjourns. Washington, D.C.: Anti-Defamation League, October 5, 2000. [online] http://www.adl.org/presrele/hater_51/3682_51.html Anti-Defamation League. ADL FBI Report ‘A Disturbing Snapshot of Hate in America’, Urges Action to Close Federal Hate Crimes Gap. Washington, D.C.: Anti-Defamation League, October 16, 2000. [online] http://www.adl.org/presrele/hater_51/3586_51.html Anti-Defamation League. ADL Welcomes Guilty Verdict Against Second Defendant in Matthew Shepard Case. Washington, D.C.: Anti-Defamation League, November 3, 1999. [online] http://www.adl.org/presrele/hater_51/3512_51.html Anti-Defamation League. Combating Hate. Washington, D.C.: Anti-Defamation League, 2001. [online] http://www.adl.org/main_combatting_hate.html Anti-Defamation League. Hate Crimes: Archived Press Releases. Washington, D.C.: AntiDefamation League, 2000. [oneline] http://www.adl.org/presrele/hater_51/ed_51.html Anti-Defamation League. Audit of Anti-Semitic Incidents. Washington, D.C.: Anti-Defamation League, 1999. [online] http://www.adl.org/1999_Audit/Executive_Summary.html Anti-Discrimination Board of New South Wales. Balancing The Act: A Submission to the NSW Law Reform Commission’s Review of the Anti-Discrimination Act 1977. (NSW). Sydney: Anti-Discrimination Board, 1994 Appelt, E. Jarosch, M. eds. Combatting Racial Discrimination: Affirmative Action as a Model for Europe. New York, NY, US: Berg. Aronowitz, A. "Germany's Xenophobic Violence: Criminal Justice and Social Responses.” Hamm, M. ed. Hate Crime: International Perspectives on Causes and Control. Cincinnati: Anderson Publishing, 1994 Aronowitz, Alexis. "A comparative study of hate crime: legislative, judicial and social responses in Germany and the United States." European Journal on Criminal Policy and Research. 2(3) (1994): 39-64. Arthurs, H.W. Hate Propaganda B An Argument Against Attempts to Stop It by Legislation. Chitty’s Law Journal. (1976):18. Ault, A. When it happens to men, its ‘hate’ and ‘a crime’: Hate Crimes Policies in the contexts of

146

gay politics, movement organizations, and feminist concerns. Journal of Poverty. 1(1) (1997): 49-63. Australian Institute of Criminology. Gay-Hate Related Homicides: An Overview of major findings in New South Wales, June 2000. Australian Racial Discrimination Act 1975. [online] www.auslii.edu.au/nz/cases/NZCA/2000/179.html Australian Human Rights and Equal Opportunity Commission (HREOC) 1986. [online] www.austlii.edu.au/nz/cases/NZCA/2000/179.html Australian Multicultural Advisory Council (MAC). Report of the National Inquiry into Racist Violence in Australia. Australia, 1991. [online] www.austlii.edu.au/nz/caes/NZCA/s000/179.html B.C. Human Rights Commission. A Call For Action: Combatting Hate In British Columbia. Vancouver: B.C. Human Rights Commission, n.d. B’nai Brith Canada, League for Human Rights. 1999Audit of Antisemitic Incidents. Toronto, Canada: B’nai Brith Canada, League for Human Rights, 2001. BBC News, World Service, Africa. Nambia Gay Rights Row. (October 2, 2000). Baker, C.E. Human Liberty and Freedom of Speech. Oxford: Oxford University Press, 1989. Bailey, I. “Crackdown urged on internet hate.” The London Free Press, (January 16, 1998): A9. Bains, Camille. March 12, 1999. “Vancouver link found in threats against abortionists, police say.” Vancouver Sun. Banks, N. Kathleen Sam. Could Mom be Wrong? The Hurt of Names And Words: Hate Propaganda and Freedom of Expression. E Law - Murdoch University Electronic Journal of Law. 6(2) (June 1999). Barnes, Arnold, Ephross, Paul H. The impact of hate violence on victims: Emotional and Behavioural responses to attacks. Social Work. 39(3) (May 1994): 247-251. Barrett, Stanley. Is God a Racist? The Right Wing in Canada. Toronto: University of Toronto Press, 1987.

147

Barrett, H. and Jones, D. Gender and Hatred. In: V.P. Varma (ed.). How and Why Children Hate. Bristol, PA, US: Jessica Kingsley Publishers, Ltd., 1993. Bassiouni, M. C. Crimes Against Humanity, 1946. Batley, Sue. “Justice Ministers support criminalizing hate propaganda aimed at gays.” The Canadian Press, November 28, 2001. Bauserman, Robert. Sexual Aggression and Pornography: A Review of Correlational Research. Basic and Applied Social Psychology. 18(4): 405-427 (1996). Benedek, E.P. and Brown, C.F. No excuses: Televised Pornography harms children. Harvard Review of Psychiatry. 7(4):(November-December, 1999):236-240. Benyakar, Mordechai. Aggression and violence in the new millenium: The chain of evil. Revista de Psicoanalisis. 55(4) (Oct - Dec, 1998): 875-892. Benzie, Robert. “Exceptions must be clarified, Ontario says. Attorney General concerned about hampering police.” The National Post. (January 27, 2001).A8. Bercuson, David and D. Wertheimer. A Trust Betrayed: The Keegstra Affair. Toronto: Doubleday Canada, 1985. Beresford, P. “What have madness and psychiatric system survivors got to do with disability and disability studies?” Disability and Society. 15(1) (January 2000): 167-172. Berger, Thomas. Fragile Freedoms. Toronto: Clarke, Irwin, 1981. Bessner, Ronda. The Constitutionality of the Group Libel Offences in the Canadian Criminal Code. Manitoba Law Journal. 17 (1988):183. Bichenbach, J. Physical Disability and Social Policy. Toronto: University of Toronto Press, 1993. Bill C-36 (Anti-Terrorism Act). Http://www.parl.gc.ca/37/1parlbus/chambus/hous/bills/government/C-36/C-36_3/C36TOCE.html Bill, Desmond. November 10, 1994. “‘All of us afraid’ at abortion clinic.” Toronto Star. Bird, J., Clarke, S. Racism, hatred, and discrimination through the lens of projective identification. Journal for the Psychoanalysis of Culture and Society. 4(2) (Fall, 1999):

148

332-335. Blackhouse, Helen. Not another Ism? Working With Girls. 19 (1984): 4-5. Blazack, R. The Subordinization of Hate: An Ethnographic Study of the Skinhead Culture, 1995. Bottos, Dinos. Keegstra and Andrews: A Commentary on Hate Propaganda and Freedom of Expression. Alberta Law Review. 27:461 (1989). Bolan, Kim. November 14, 1994. “U.S. link probed in Romalis shooting.” Vancouver Sun. Bolan, Kim. July 12, 2000. “Phone call threatens abortion doctor.” Vancouver Sun. Bolan, Kim. March 5, 1999. “Anti-Abortion comic as terrifying as a home invasion, Priddy says.” Vancouver Sun Bolan, Kim. November 19, 1997. “Canada-wide team to probe shootings of abortion Mds.” Vancouver Sun; Bolan, Kim. November 19, 1994. “‘Pro-Lifers’ divided on question of violence against abortionists.” Vancouver Sun Bolan, Kim. November 13, 1997. “Shootings of 3 abortion Mds are linked, police suspect. Vancouver Sun. Bolan, Kim. November 25, 1997.”The abortionist as an endangered species.” Vancouver Sun. Bolan, Kim. October 26, 1998. “Abortion doctors want increased security after NY physician slain. Vancouver Sun. Bolan, Kim. October 28, 1998. “Pro-Choice group seeks investigation.” Vancouver Sun. Bolan, Kim. March 30, 1992. “Physicians residences, offences will be picketed, foes promise.” Vancouver Sun; Bolan, Kim. July 18, 2000. “Web sites probed in Romalis case.” Vancouver Sun. Bolan, Kim. July 12, 2000. “Romalis attacked again: Abortion provider survives stabbing at Seymour clinic.” Vancouver Sun. 1-A4; Bolaria, B. Singh and Peter S. Li. Racial Oppression in Canada. Toronto: Garamond Press, 1985.

149

Braun, Stefan. Social and Racial Tolerance and Freedom of Expression in a Democratic Society: Friends or Foes? Regina v. Zundel. Dalhousie Law Journal. 471 (1988). Brewer, M. B. The psychology of prejudice: Ingroup love or outgroup hate? Journal of Social Issues. Special Issue: Prejudice and intergroup Relations: Papers in Honour of Gordon W. Allport’s Centennial. 55(3) (Fall 1999): 429-444. Brodie, J. The Politics of Abortion in Canada. Crow, B. et al (eds.). Open Boundaries: A Canadian Women’s Studies Reader. Toronto: Prentice Hall Canada, 2000. Bruce, Lorraine. Bigotry Meets Technology. Online hate opens up Censorship debate once again.(June 23, 2000) [FS_Discussion] Online Hate. http://sss.thefulcrum.com/99-00/60 26features.html (Comments on: www.godhatesfags.com, www.rapevideos.com, www.skinheadpride.com). Brunner, Jeff. Canada’s Use of Criminal and Human Rights Legislation to Control Hate Propaganda. Manitoba Law Journal. 26:(June): 299-317. Bryan, Willie V. Multicultural aspects of disabilities: A guide to understanding and assisting minorities in the rehabilitation process. Springfield, IL., US: Charles C. Thomas Publisher. Bundesami fur Verfuassungsshutz. Trends in Right-wing Extremism in the New Federal States, 1999. Burstyn, Varda ed. Women Against Censorship. Toronto: Douglas & McIntyre, 1985. Butcher, M. and D.E. Sherkat. Elucidating the Web of Hate: The Ideological Structuring of Connections among Right Wing Hate Groups on the Internet. Southern Sociological Society Association Paper, 2000. Butterworth, Dianne. "Wanking in Cyberspace. The Development of Computer Porn. Jackson, Stevi and Sue Scott eds. Feminism and Sexuality: A Reader. New York: Columbia University Press, (1996): 314. Canadian Security Intelligence Service CSIS 1998 Report on “Single Issue Terrorism” as antiabortion violence. Http://www.csis.scrs.gc.ca/eng/comment/com74_e.html Caldwell, Gary. “Antisemitisme au Quebec. In. Anctil and Caldwell (eds.). Juifs et Realities Juives au Quebec. Quebec: Institut Quebecios de Recherche sur la Culture (1984). Canada. Parliamentary Special Committee on the Disabled and the Handicapped. Obstacles.

150

Ottawa: Minister of Supply and Services Canada, 1981. Canada. Federal Task Force on Disability Issues. Equal Citizenship for Canadians with Disabilities: The Will to Act. Ottawa: Minister of Public Works and Government Services Canada, 1996. Canada. A Visionary Paper of Federal/Provinical/Territorial Ministers Responsible for Social Services. In Unison: A Canadian Approach to Disability Issues. Hull: Human Resources Development Canada, 1998. Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. Canada, House of Commons. Equality Now! Report to the Special Committee on Visible Minorities. Ottawa: Supply and Services, 1984. Canada. Report to the Minister of Justice of the Special Committee on Hate Propaganda in Canada, (Cohen Committee). Ottawa: Queens Printer, 1966. Canada, Minister of Justice. 1996. Report of the Department of Justice to Establish a Working Group on Hate Propaganda. Canada, Secretary of State. Race Relations and the Law: Report of a Symposium Held in Vancouver, British Columbia, 22-24 April 1982. Ottawa: Supply and Services. 1983. Canada. Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution. (Fraser Committee) Ottawa, Supply and Services Canada, Vol 1: 317-323 (1985). Canadian Bar Association. Special Committee on Racial and Religious Hatred. Ottawa: Hatred and the Law. Ottawa, August, 1984. Canadian Association of Chiefs of Police. Police Multicultural Liaison Committee. A Resource Guide: Hate Crimes In Your Back Yard. Ottawa: Canadian Association of Chiefs of Police, 1996. Canadian Charter of Rights and Freedoms: Guarantee of Rights and Freedoms. Part I of the Constitution Act, 1982, Schedule B Constitution Act, 1982 (79), 1982, c. 11 ss. 1, 7, 15, 28, 32. Canadian Human Rights Act R.S.C. 1985, c. H-6. Part I Proscribed Discrimination. Section 12. Discriminatory Practices.

151

Canadian Human Rights Act R.S.C. 1985, C. H-6. Part I Proscribed Discrimination. Section 13. Canadian Human Rights Act. R.S.C. 1985, C. H-6. Part I Proscribed Discrimination. Section 3. Canadian Human Rights Act: A Guide.[Available] http://www.chrcccdp.ca/publications/chra_guide_lcdp.asp Canadian Human Rights Act Review Panel. Promoting Equality: A New Vision. Ottawa: Department of Justice, 2000. Canadian Association of Chiefs of Police. (CACP) Police Multiculturalism Liaison Committee.A Resource Guide -- Hate Crimes in Canada: In Your Back Yard. Ottawa: Canadian Association of Chiefs of Police, Police Multiculturalism Liaison Committee, 1996. Canadian Human Rights Commission. Tribunal to Continue Hearing Internet Messages Complaint. Canadian Human Rights Commission Website. 2000 News Releases, November 30, 2000. Canadian Human Rights Commission. Hate Messages. Canadian Human Rights Commission Website, April, 1998. Canadian Human Rights Reporter. Hate Propaganda Casebook. Vancouver: Canadian Human Rights Reporter, 1997. Canadian Human Rights Reporter. Disability Rights Casebook. Vancouver, B.C.: Canadian Human Rights Reporter, 1997. Canadian Human Rights Reporter. Sex Discrimination Casebook. Vancouver, B.C.: Canadian Human Rights Reporter, 1999. Canadian Human Rights Reporter. Discrimination Casebook. Vancouver, B.C.: Canadian Human Rights Reporter, 1997. Canadian Human Rights Reporter. Sexual Orientation Casebook. Vancouver, B.C.: Canadian Human Rights Reporter, 1998. Canadian Human Rights Reporter. Race Discrimination Casebook. Vancouver, B.C.: Canadian Human Rights Reporter, 1997. Canadian Human Rights Reporter. Sexual Harassment Casebook. Vancouver, B.C.: Canadian

152

Human Rights Reporter, 1997. Canadian Law Reform Commission. Paper 50, Hate Propaganda. Ottawa: Queens Printer, 1986. Canadian Medical Association Journal. 1992. “Bombing of Toronto Abortion Clinic raises stakes in bitter dispute.” Canadian Medical Association Journal. 147(10): 1528-1533. Canadian Medical Association Journal 152(6):927-932; Parton, Nicole. June 21, 1995. “Doctor recalls blood, terror of the day he was shot.” Vancouver Sun. Canadian Medical Association Journal on Wellesley Hospital, Toronto, Ontario. http://www.cma.ca/cmaj/vol%2D155/0089b%2De.htm Canada, Minister of Justice. Report of the Special Committee on Hate Propaganda. Ottawa: Queens Printer, 1996. Canadian Human Rights Act Review Panel. Promoting Equality: A New Vision. Ottawa: Department of Justice, 2000. Canada. Solicitor General Canada. Annual Report on Electronic Surveillance. (Section 178.22 of the Criminal Code). 1985-1988. Canada Law Reform Commission. Hate Propaganda - Criminal Law. Canada Law Reform Commission Working Paper. 50. Ottawa: Canada Law Reform Commission, 1986. Canada. Department of Multiculturalim and Citizenship. What if Someone Said “I Hate You” Just because of the Colour of your Skin. Canada. Department of Multiculturalism and Citizenship, 1990. Canada Newswire. Standards on Hate/Bias Motivated Crimes and Hate Propaganda Offences Issued to Police Services. January 18, 1994. Canadian Press. November 12, 1994. “Obstetrics-field MD’s ask Rock for protection; shot doctor’s partner fingers anti-abortionists.” Canadian Press. November 16, 1997. “Profile of would be murderer who hates abortion doctors.” Canadian Press; Canadian Press. "Manitoba: Gays targetted, Crown says." The Globe and Mail. about the murder of Gordon Kuhtey near the Manitoba Legislature in June, 1991, and the trial of 4 alleged neo-Nazis who pleaded not-guilty to second-degree murder, 1997.

153

Canadian Press. "Hate crimes common - study. And not all police forces collect statistics. The Toronto Star. A1, February 12, 1996. Canadian Press. "Hate-crime study draws support." The Globe and Mail. (National News) A4, February 13, 1996. Canadian Press, Toronto. "Two convicted for gay-bashing. St. Catherine's Standard, March 17, 1995. Canadian Press Newswire. "Lawyers push for speedier civil court system (Report from Canadian Barr Assn's annual meeting). Society must key on crime prevention [Alan Rock]." August 25, 1996. Canadian Press Newswire. "Gays can sue ex-partners for support, court rules (Ontario Court of Appeal: M and H case)”. December 18, 1996. Canadian Press Newswire. "Gay survey shows level of assaults high (in Vancouver).” (August 1, 1995). Canadian Press Newswire. "Quebec plans law to combat gay-bashing: Cabinet Minister (Serge Menard). June 26, 1995. Canadian Press Newswire. Liberals introduce amendments to human rights act. Canadian Press Newswire, April 3, 1996. Canadian Press Newswire. Rock says Liberals must keep long-standing commitment to gay rights bill. Canadian Press Newswire, April 26, 1996. Canadian Press Newswire. "Minorities celebrate passage of hate-crimes law. June 16, 1995. Canadian Press Newswire. "Liberal urges MPs to reject section of bill that distorts values (Roseanne Skoke). June 13, 1995. Canadian Press Newswire. "Church shares blame for death of gay priest, monk says (William Sibley comments on the murder of Rev. Warren Eling). June 6, 1995. Canadian Press Newswire. "Rock has strong words to support hate bill (Bill C-41). June 15, 1995. Canadian Press Newswire. "New Democrat accused of promoting hatred against gays (George Mammoliti)." Canadian Press Newswire. August 6, 1994.

154

Canadian Press Newswire. "National Symposium on anti-stalking laws for police." Canadian Press Newswire. December 12, 1994. Canadian Press Newswire. "Battle shaping up as government prepares to protect gays from discrimination by adding 'sexual orientation' to Canadian Human Rights Act. Canadian Press Newswire. December 7, 1994. Canadian Press Newswire. Albertas rejection of human rights protection for gays criticized. Canadian Press Newswire. September 7, 1995. Canadian Press Newswire. "Zundel target of private suit (over his Internet site). Canadian Press Newswire. July 28, 1996. Canadian Press Newswire. "Runciman says militia group forming in Ontario Symposium on hate crime." Canadian Press Newswire. April 23, 1996. Canadian Press Newswire. "Proposed law targets cross-border cyberhate. Canadian Press Newswire. October 22, 1995. Canadian Press Newswire. "Antisemitism report cites troubling trends in Canada (Antisemitism World Report 1995). Canadian Press Newswire. June 20, 1995. Canadian Press Newswire. "Liberal MP says he'll vote against hate-crimes bill. Canadian Press Newswire. March 21, 1995. Canadian Security and Intelligence Service (CSIS). 1998 report: http://www.csisscrs.gc.ca/eng/comment/com74_c.html Canada and the World Backgrounder. "Colour clashes: it's been more than 30 years since the US Congress, prodded by President Lyndon Johnson, passed the Civil Rights Act of 1964 to end legislated discrimination against blacks, but the battle against racism continues. Canadian and the World Backgrounder. 62(1):29-31. (September 1996). Canadian and the World Backgrounder. From moderates to madness: There is a continuous line of increasingly intolerant thought that links extremist hate groups to the tolerant majority. Canadian and the World Backgrounder. 61(6):8-11. (April 1996). Canadian Jewish Congress. v. North Shore Free Press Ltd. (No. 7) (1997), 30 C.H.R.R. D/5 (B.C. Trib.).

155

Canada (Human Rights Commission) v. Canadian Liberty Net (1998), 31 C.H.R.R. D/433 (S.C.C.). Canadian Jewish News."Canada Jewish Congress, Pacific region calls for integrated hate crime response." Canadian Jewish News. 37(27):30. (October 31, 1996). Canadian Jewish News. "Hate crimes report a little too late” Canadian Jewish News. 37(19):5. (September 5, 1996). Canadian Jewish News. "North York home vandalized with anti-Semitic slogans." Canadian Jewish News. 37(14):5. (August 1, 1996). Canadian Jewish News. "National Hate Crime Registry Urged. Canadian Jewish News. 34(15):4.(August 12, 1993). Canadian Jewish News. "PEI Hate Crime trial ends in Conviction (Satadi case). Canadian Jewish News. 34(14):7. (July 29, 1993). Canadian Jewish News. "BC launches hate crimes unit. Canadian Jewish News. 37(2):23. (May 2, 1996). Canadian (Human Rights Commission) v. Taylor (1990), 13 C.H.R.R. D/435 (S.C.C). Canadian Jewish Congress. Brief of the Canadian Jewish Congress on Bill S-21 (Hate Propaganda) to the Senate Standing Committee on Constitutional and Legal Affairs. Ottawa: Canadian Jewish Congress, 1969. Canavan, Francis. Speech that Matters. Society. 36(6) (September - October, 1999):11-15. Carter, James H. Racisms Impact on Mental Health. Journal of the National Medical Association. 86(7) (July 1994): 543-547. Calvert, Clay. Hate speech and its harms: A Communication theory perspective. Journal of Communication. 47(1): (Winter, 1997): 4-19. Canada. In Unison: A Canadian Approach to Disability Issues. Hill: Human Resources Development Canada, 1998. Canadian Human Rights Reporter. Hate Propaganda Casebook. Vancouver: Canadian Human Rights Reporter, 1997.

156

Canadian Human Rights Reporter. Sexual Orientation Casebook. Vancouver: Canadian Human Rights Reporter, 1997. Canadian Human Rights Commission. Promoting Equality: A New Vision. Canada: Canadian Human Rights Act Review Panel, June 2000. Canadian Jewish Congress. 1996. The Internet – A New User’s Guide to Understanding Hate in Cyberspace, Willowdale: National Community Relations Committee of the Canadian Jewish Congress. Capitanchik, David and Michael Whine. 1998. The Dissemination of Harmful Content on the Internet – Regulatory and Self-regulatory Approaches. London: Intergovernmental Committee of the Council of Europe. Capitanchik, David and Michael Whine. 1996. The Governance of Cyberspace: Racism on the Internet. London: Institute for Jewish Policy Research. Chang, David. "Beyond Uncompromising Positions: Hate Crimes Legislation and the common ground between conservative Republicans and Gay Rights Advocates." Fordham Urban Law Journal. v.21:(1994): 1097-1105. Chang, David. "Lynching and terrorism, speech, and R.A.V. (R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992)): the constitutionality of Wisconsin's hate crimes statute.” New York Law School Journal of Human Rights.10: (1993): 455-512. Charney, Israel W. “The Widening Circle of Genocide - Genocide: A Critical Bibliographic Review,” Vol 3. 24(1) (1996):98-100. Check, James et al. Attitudes and Behavior Regarding Pornography, Sexual Coercion, and Violence in Metropolitan Toronto High School Students. Downsview, Ontario: LaMarsh Research Programme on Violence and Conflict Resolution, York University, 1989. Check, James et al. Survey of Canadians Attitudes Regarding Sexual Content in the Media. Downsview, Ontario: LaMarsh Research Programme on Violence and Conflict Resolution, 1985. Chwialkowski, Luiza. High Court upholds child porn ban: Justices overturn lower courts verdict, allow two exceptions. National Post.(January 27, 2001): A1. Chwailkowski, Luiza. Freedom of expression not absolute: Three judges. National Post. (January 27, 2001): A8.

157

CJ International. AADL Survey Analyzes Neo-Nazi Skinhead Menace and International Connections. CJ International. vol. 12, 1996. Clark, Gordon. July 12, 2000. “Stabbing “an attack on us all”.” The Province. Clark, Lorenne. “Liberalism and Pornography.” In: D. Copp et al (eds.). Group Defamation and Freedom of Speech. The Relationship Between Language and Violence. Westport, Connecticut; London: Greenwood Press, 1983 Clarke, Floyd, I. "Hate violence in the United States. FBI Law Enforcement Bulletin. 60 (January 1991):14-17. Clarke, Simon. Splitting Difference: Psychoanalysis, Hatred and Exclusion. Journal for the Theory of Social Behaviour. 29(1) (March, 1999):21-35. Cleary, Edward J. Beyond the Burning Cross: The First Amendment in the Landmark R.A.V. Case. New York: Random House, 1994. Clemence, Al, Doise, W., De-Rosa, A, Gonzalez, L. The Social Representation of Human Rights: An International Study on the Scope and Limits of Universality. International Journal of Psychology. 30(2) (April 1995):181-212. Coady, Lynn. February 2000. “The ‘A’ Word: Doctors are stalked by snipers and abortion providers back into the shadows.” Saturday Night. Coalition of Lesbian and Gay Rights Ontario. Diaries 1992-2000. Toronto: CLGRO, 2000. Cohen, Jonathan. More Censorship or Less Discrimination? Sexual Orientation Hate Propaganda in Multiple Perspectives. McGill Law Journal 46:69 (2000). Coliver, S. ed. Striking a Balance: Hate Speech, Freedom of Expression and NonDiscrimination. London: Article 19, 1992. Cogan, Jeanine C. “The Prevention of anti-lesbian/gay hate crimes through social change and empowerment.” In. E.D. Rothblum, Bond, Lynne P. (eds.). Preventing Heterosexism and Homophobia. Primary Prevention of Psychopathology. 17 (1996): 219-238. Combatting Hate on the Internet: Recommendations for Action. World Conference Against Racism and the Government of Canada. Recommendations derived from, All Different, All Equal: From Principle to Practise, a conference held in Strasbourg, France, October 11-13, 2000 in preparation for the World Conference Against Racism (WCAR) by the

158

Council of Europe. Commission es droits de la Personne du Quebec.De L'Illegalite a L'egalite: Rapport de la Consultation Publique sur la Violence et la Discrimination Envers Les Gais et Lesbiennes. Quebec, Canada: Commission des droits de la Personne du Quebec, May 1994. Commission on Systemic Racism in the Ontario Criminal Justice System. Report of the Commission on Systemic Racism in the Ontario Criminal Justice System. A Community Summary. Ontario: Queen's Printer for Ontario, 1995. Committee on the Judiciary. Anti-Gay Violence: Hearing before the Subcommittee on Criminal Justice of the Committee on the Judiciary, House of Representatives. (Serial N. 132). Washington, DC: Government Printing Office, 1986. Committee on the Judiciary. Police Misconduct: Hearing before the Subcommittee on Criminal Justice of the Committee of the Judiciary. (Serial No. 98-50). Washington, DC:Government Printing Office, 1983. Commission for Racial Equality. Racial Attacks and Harassment: CRE Factsheets. London: Commission for Racial Equality, 1999. Coolican, Lori. “Saskatoon Paper Fined for Publishing Anti-Gay Ad. Star-Pheonix Ran Mans Ad Condemning Homosexuality.” (June 2001). Regina GlobalTV.Com: http://regina.globaltv.com...stories/news Cotler, I. “Racist Incitement: Giving Free Speech a Bad Name.” Schneiderman, D. ed. Freedom of Expression and the Charter. Calgary: Thomson Professional Publishing, 1991. Colburn, Glen. March 27, 1993. “Pro-choice groups want ban on anti-abortionist ‘intimidation’.” Ottawa Citizen; Council of Canadians with Disabilities. Taking the Lead: Council of Canadians with Disabilities Proposals for Amending the Canadian Human Rights Act. Submission to Canadian Human Rights Act Review Panel. Canada: Council of Canadians with Disabilities, (October, 1999). Authors: Kerzner, Lana and David Baker. Court of Appeal MacKinnon, “Pornography, Civil Rights, and Speech.” 20 Harvard Law Review - C.L.L. Rev. 1, (1985). Cowan, G. and Stahly, G.B. “Attitudes toward pornography control.” In: J.C. Chrisler and

159

D.Howard (eds.) New Directions in Feminist Psychology: Practice, Theory and Research. Springer Series: Focus on Women. Volume 13. New York, NY, US: Springer Publishing, 1992. Cowan, Gloria and Hodge, Cyndi. “Judgements of hate speech: The effects of target group, publicness, and behavioural responses of the target.” Journal of Applied Social Psychology. 26(4) (February 1996): 355-374. Cowan, G. “Feminist attitudes toward pornography control.” Psychology of Women Quarterly. 16(2) (June 1992): 165-177. Cowl, Terrence. “Responding to Hate – An International Comparative Review of Program and Policy Responses to Hate Group Activities.” Hull: Canadian Heritage, 1995. Craig, K. M. “Teaching students about hate and changing awareness.” Teaching of Psychology. 26(1) (1999): 44-45. Craig, Kellina M. “Retaliation, Fear, or Rage: An Investigation of African American and White Reactions to Racist Hate Crimes.” Journal of Interpersonal Violence. 14(2) (1999):138151. Craig, Gordon A. “The Origins of Nazi Genocide: From Euthanasia to the Final Solution.” New York Review of Books. 42(15) (1995):24-29. Cramer, E.P. “Hate Crime Laws and Sexual Orientation.” Journal of Sociology and Social Welfare. 26(3) (1999): 5-24. Crawford, Maria, Gartner, Rosemary, Dawson, Myrna. Woman Killings: Intimate Femicide in Ontario 1974-1990; A Report Prepared for the Women We Honour Action Committee. Toronto: The Women We Honour Action Committee. (Funded by the Ontario Women's Directorate in conjunction with the Women We Honour Action Committee), 1992. Cramer, Elizabeth, P. “Hate crime laws and sexual orientation.” Journal of Sociology & Social Welfare. 26(3) (September 1999): 5-24. Crenshaw, K. W. “Beyond Racism and Misogyny: Black Feminism and 2 Love Crew.” Matsuda, M.J. et al (eds.). Words That Wound. Boulder, San Francisco, and Oxford: Westview Press, 1995. Czajkoski, E. H. “Criminalizing Hate: An Empirical Assessment.” Federal Probation. 56(3) (September 1992): 36-40.

160

Cudmore, James and Ian Jack. “Victory for Children. Liberals, Parliament needs to examine the exceptions, Alliance says.” The National Post. (January 27, 2001): A8. Cunneen, Chris, Fraser, David, Tomsen, Stephen eds. Faces of Hate: Hate Crime In Australia. Sydney Australia: Hawkins Press, 1997. Cuneen, Chris, DeRome, Liz. Monitoring Hate Crime: Report on a Pilot Project in New South Wales. Current Issues in Criminal Justice. 5(2) (1993):160-172. Cuneen, Chris. Criminology, Genocide and the Forced Removal of Indigenous children from their families. Australian and New Zealand Journal of Criminology. 32(2) (1999):124138. De Santis, Heather. Combatting Hate on the Internet: An International Comparative Review of Policy Approaches. Ottawa: Department of Canadian Heritage, 1998. deGiere, Gregory.Crimes Against Reproductive Rights in California. California Legislature and the state Department of Justice, Senate Office of Research, May 2001. Dalgin, Rebecca Spirito. Impact of Title I of the Americans with Disabilities Act on people with psychiatric disabilities. Journal of Applied Rehabilitation Counselling: Special Issue. 32(1) (Spring 2001): 45-50. Dare, C. “The family scapegoat: An origin for hating.” In, V.P. Varma (ed.). How and Why Children Hate. Bristol, PA, US: Jessica Kingsley Publishers, Ltd., 1993. Davis, R. F. “The Psychosocial construction of hate: Lesbian and Gay Male Victimization.” Dissertation Abstracts International. 55(5B): (1994):2004. Dawson, R. Brettel. First Person Familiar: Judicial Intervention in Pregnancy, Again. In B.A. Crow, and L. Gottel (eds.). Open Boundaries: A Canadian Womens Studies Reader. Toronto: Prentice hall Allyn and Bacon Canada, 2000. De Santis, Heather. Combatting Hate on the Internet: An International Comparative Review of Policy Approaches. Ottawa: Department of Canadian Heritage, 1998. Daly, Shelagh. “Whatever happened to sexual orientation? Lesbian Rights and the United Nations.” Kinesis. 18-19. (January 1996). Davies, Alan. “A Tale of Two Trials: Antisemitism in Canada 1985.” Holocaust and Genocide

161

Studies. 4.1:77. (1989) Delgado, Richard and Jane Steffanic. “Must we Defend Nazis?: Hate Speech, Pornography, and the New First Amendment.” Law and Society Review. 33(3) (1999): 761-775. Delgado, Richard. “Words that Wound: A Tort Action for Racial Insults, Epithets, and Name Calling.” Matsuda, M.J. et al (eds.). Words That Wound: Critical Race Theory: Assaultive Speech, and the First Amendment. Boulder, San Francisco, and Oxford: Westview Press, 1993. Delgado, R., et al. “Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution.” Wisconsin Law Review. 1359 (1985). Defeis, E.F. “Freedom of Speech and International Norms: A Response to Hate Speech.” Stanford Journal of International Law. 29:57 (1992): 83. Degan, Michael S. "'Adding the first amendment fo the fire': cross burning and hate crime laws.” Creighton Law Review. 26: (June 1993):1109-1153. Deitchman, David. "Limits on the right to hate: a look at the Texas Hate Crime Act.” Baylor Law Review. 46: (Spring, 1994):399-417. Department of Justice (Canada) 2001. Backgrounder: Highlights of Anti-Terrorism Act. Online: http://canada.justice.gc.ca/en/news/nre/2001/doc_27787.html Derksen, Jim. Deadly Compassion B Fearsome Kindness: Murdered in the Name. Council of Canadians with Disabilities, 1999. Delgado, R. and J. Stefanic (eds.). Critical Race Theory: The Cutting Edge. Philadelphia: Temple University Press, 2000. Delgado, Richard. “Words that Wound: A Tort Action for Racial Insults, Epithets, and NameCalling.” Harvard Civil Rights Civil Law Review. 17: (1982):133. Delgado, Richard. “Words that Wound: A Tort Action for Racial Insults, Epithets, and Name Calling.” Matsuda, M.J. Words that Wound. Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder, Col.: Westview Press.89-110, 1993. Delgado, Richard and Jean Stafancic. Must We Defend Nazis?: Hate Speech, Pornography, and the New First Amendment, 1997.

162

Department of Justice Canada. 2001. Backgrounder: Highlights of Anti-Terrorism Act (Bill C36). www.canada.justice.gc.ca Dias, Dexter J. “A Licence to Hate: Incitement to Racial Hatred and the Public Order Act 1986.” Socialist Lawyer. 198-88(4):20-21, (1987). Dickson, Brian. “Disabilities Act must have teeth.” Council of Canadians With Disabilities, (October 7, 1998). Digital Hate. Interactive Report on the Internet, Vols I and II. Los Angeles: Simon Wiesethal Center, 1999) (Compact Disks). Donnerstein, E. Pornography: Its Effect on Violence Against Women. Pornography and Sexual Aggression, 1998. Donnerstein, E. Linz, D., Penrod, S. The Question of Pornography: Research Findings and Policy Implications. New York: Free Press, 1987. Donnerstein, E. I. and Linz, D. G. “Mass media violence and male viewers: Current theory and research.” American Behavioural Scientist. 29(5) (May-June 1986): 601-618. Douglas, M. “Auslander Raus! Nazi Raus!” International Journal of Comparative and Applied Criminal Justice. 16(1):129-134 (1992). Downey, J.P., Stage, F. K. “Hate crimes and violence on college and university campuses.” Journal of College Student Development. 40(1) (January - February, 1999): 3-9. Dubick, K. “Freedom to Hate: Do the Criminal Code Proscriptions Against Hate Propaganda Infringe the Charter?” Saskatchewan Law Review. 54 (1990): 149. Dutton, Alan and Cynthia Cornish. Hate Propaganda: An Exploration of the Production and Distribution of Hate Materials. Ottawa: Technical Report. Law Reform Commission and the Research and Statistics Section of the Department of Justice, 1995. Dutton, Alan, Mock, Karen and Ellbogen, Elaine. Combatting Hate on the Internet. Issue Position Paper. Hate and New Media Working Group. Canadian Secretariat. World Conference Against Racism Advisory Committee, January 31, 2000. Dunlap, Aklilu. December 1993. "The bellows of dying elephants: Gay, lesbian, and bisexual protective hate crime statutes after R.A.V. v. City of St. Paul (112 S. Ct. 2538 (1992)).” Law and Inequality.12(1993):205-24.

163

Dworkin, R. A Matter of Principle. Cambridge, Massachusets: Harvard University Press, 1985. Dworkin, Andrea. Pornography: Men Possessing Women. New York: Perogee, 1981. Dworkin, Andrea and Catharine A. MacKinnon. Pornography and Civil Rights: A New Day For Women’s Equality. Minneapolis: Organizing Against Pornography, 1988. Dworkin, Andrea. Life and Death. New York, NY: Free Press, 1997. Dowd, Allan. July 12, 2000. “Police investigate stabbing of abortion doctor in Canada.” Reuters. Downs, D.A. “Skokie Revisited.: Group Hate Speech and the First Amendment.” Notre Dame Law Review. 60:629 (1985). Dutton, Alan, Mock, Karen, Ellbogen, Elaine. Combatting Hate on the Internet. Issue Position Paper. Hate and New Media Working Group. Canadian Secretariat. World Conference Against Racism Advisory Committee, January 31, 2000.. Dutton, Alan and Cornish, Cynthia. Hate Propaganda: An Exploration of the Production and Distribution of Hate Materials. Ottawa: Technical Report Law Reform Commission and the Research Statistics Section of the Department of Justice, 1995. Dworkin, Andrea. Pornography: Men Possessing Women, 1984. Dworkin, Andrea. “Pornography as a Civil Rights Issue for Women.” University of Michigan Journal of Law Reform. 21:55 (1987-1988). Dworkin, Andrea. “Against the Male Flood: Censorship, Pornography, and Equality.” Harvard Womens Law Journal. 8(1) (1985). Dworkin, Andrea. “Woman Hating Right and Left.” In Raymond, J and De. Leidholdt, eds. The Sexual Liberals and the Attack on Feminism, 1990. Dworkin, Andrea and Catharine MacKinnon. Pornography and Civil Rights: A New Day for Women’s Equality, 1988. Easton, Shelley. March 22, 1993. “Abortion docs in the crossfire; one in two surveyed report harassment on upswing.” The Province (Vancouver). Easton, Shelly. March 22, 1993. “Doctors Fair Game: Pro-Life Society.” The Province (Vancouver).

164

Eatwell, Roger. “Surfing the Great White Wave: The Internet, Extremism and the Problem of Control.” Patterns of Prejudice. 30:61 (1996). EGALE. November 22, 2001. “Press Release. Svend Robinson Introduces Bill, Egale Renews call for Hate Crimes Protection in Wake of Murder of Gay Man in Vancouver.” Ottawa: Egale Canada. Edwards, Heather ed. Workshop Reports on Human Rights and the Internet. Ottawa: Canadian Centre for Foreign Policy Development, 1998. Eglin, Peter and S. Hester. “You’re all a bunch of feminists: Categorization and the Politics of Terror in the Montreal Massacre.” Human Studies. 22(2-4): 253-272 (October, 1999). Eichler, Margrit. Nonsexist Research Methods. New York: Routledge, 1991. Eichler, Margrit. On the Treatment of the Sexes in Research. Ottawa: Social Sciences and Humanities Research Council of Canada, 1985. Eichler, Margrit. The Double Standard. London: Croom-Helm, 1980. Eid, Elisabeth. Combatting Hate Speech: A Review of the Federal Legislative Mechanisms [working draft]. Ottawa. [A paper presented in Ottawa during the workshop on Police Response to Hate/Bas Crime by the Solicitor General of Canada Secretariat and Carleton University, April, 1994]. Elman, Bruce P. “Combatting Racist Speech: The Canadian Experience.” Alberta Law Review. 32:623, (1994). Elman, Bruce. “The Problem of Hatred and the Canadian Charter of Rights and Freedoms: A Review of Keegstra v. The Queen.” Canadian Public Policy. 15: (1989):72-83. Elman, Bruce P. and Erin Nelson. “Distinguishing Zundel and Keegstra.” Forum Constitutional. 4 (1993):71. Elman, B. “Promotion of Hate and the Charter.” Canadian Public Policy. 15 (1989): 71-83. Epps, Kevin, Hollin, Clive R. Authority and Hatred. In. V.P. Varma (ed.) How and Why Children Hate. Bristol, PA., US: Jessica Kingsley Publishers, Ltd., 1993. Etter, G. W. Sr. “Skinheads: Manifestations of the warrior culture of the new urban tribes.” Journal

165

of Gang Research. 6(3) (Spring, 1999): 9-21. (lists internet sites). European Court of Human Rights in Dudgeon v. UK (1981), Norris v. Republic of Ireland (1988) and Modinos v. Cyprus (1993). European Council. Draft General Conclusions. All Different, All Equal: From Principle to Practise. Strasbourg: European Council, 2000. European Monitoring Centre on Racism and Xenophobia. Position Papers. All Different, All Equal: From Principle to Practise. Strasbourg: European Council, 2000. FBI Law Enforcement Bulletin. “The Hate Crime Statistics Act.” FBI Law Enforcement Bulletin. 61:24-5, (May 1992). Farber, Bernie. From Marches to Modems: A Report on Organized Hate in Metro, Toronto. Toronto: Canadian Jewish Congress, 1997. Faulkner, Ellen. Anti-Gay/Lesbian Violence In Toronto: The Impact on Individuals and Communities. A Project of the 519 Church Street Community Centre Victim Assistance Program. Technical Report TR1997-5e. Research and Statistics Division. Policy Sector, 1997. Faulkner, Ellen. Anti-Gay/Lesbian Violence in Calgary, Alberta. Calgary: Calgary Police Services/ Gay and Lesbian Communities Police Liaison Committee. 2001. Faulkner, Ellen. A Case Study of the Institutional Response to Anti-Gay/Lesbian Violence in Toronto. Unpublished doctoral dissertation, University of Toronto, Toronto, 1999. Faulkner, Ellen. “Annotated Bibliography: Hate Propaganda and Hate Crime.” (Unpublished), 2001. Federal Bureau of Investigation. Hate Crimes in America. Washington, D.C.: U.S. Department of Justice, 1992. Federal Bureau of Investigation. Hate Crime Statistics, 1990. A Resource Book. Association of State Uniform Crime Reporting Programs, Washington, DC. Northeastern University, Boston, MA: Center for Applied Social Research, December 1992. Federal Bureau of Investigation. Hate Crime Data Collection Guidelines. Washington, D.C.: Uniform Crime Reporting Program. U.S. Department of Justice, 1990. Federal Bureau of Investigation. Training Guide for Hate Crime Data Collection. Washington, D.C.:

166

Uniform Crime Reporting Program U.S. Department of Justice, 1990. Federal Republic of Germany. Campaign Against Violence and Hostility Toward Foreigners. Germany [oneline] www.austlii.edu.au/nz/cases/NZCA/2000/179.html December 1992. Federal Republic of Germany. Fairness and Understanding Campaign Against Xenophobia and Political Extremism. Germany [onlone] www.austlii.edu.au/nz/cases/NZCA/2000/179.html (1992). Federal Republic of Germany. Families Know No Borders and Integration of Foreign Families in the Federal Republic of Germany. Germany: Federal Ministry of Labour and Social Affairs. [online] www.austlii.edu.au/nz/cases/NZCA/2000/179.html (1992). Federal Republic of Germany. Anti-Aggression and Violence Action Programme. Germany: The Federal Ministry for Women and Youth. [online] (1992). www.austlii.edu.au/nz/cases/NZCA/2000/179.html Federal Republic of Germany. Distribution of Publications Harmful to Young Persons Act. Germany. [online] www.austlii.edu.au/nz/cases/NZCA/2000/179.html (1992). Fenson, Melvin. “Group defamation: Is the cure too costly?” Manitoba Law School Journal. 1(3):269-270 (1964-1965). Financial Daily Post. “There’s more to the story of these ostensible hate crimes (Church burnings in the US and a conviction of assaulting a homosexual in Toronto)”. Financial Daily Post. 9(110): (August 14, 1996):11. Fine, Sean. “Professor won’t face punishment. E-mail sent about massacre repugnant but is free speech, U of T President says.” The Globe and Mail. (December 8, 2000): A23. Finlay, John and Brian Smith. “The Canadian Liberty Net Litigation: A Prototype for the Regulation of Hate Speech on the Internet?” Presented at the Conference, “Hatred in Canada: Perspectives, Action and Prevention.” University of Victoria, September, 1988. Fish, Arthur. “Hate Promotion and Freedom of Expression: Truth and Consequences.” Canadian Journal of Law and Jurisprudence III. 2 (1989). Franklin, Raymond A. The Hate Directory. Compiled by R.A. Franklin, Woodstock, MD, 2001. [Online]: www.hatedirectory.com

167

Fraser, Paul. Special Committee on Pornography and Prostitution. Canada: Department of Justice, 1985. Friere, Paulo. Pedagogy of the Oppressed, 1982. Frideres, J. Racism in Canada: Alive and Well. The Western Canadian Journal of Anthropology. 6(4): 124-145 (1976). Friend, Richard A. The individual and social psychology of aging: Clinical implications for lesbian and gay men. Journal of Homosexuality. 14(1-2) (1987): 307-331. Frosh, S., Pheonix, A., Pattman, R. But its racism I really hate: Young masculinities, racism, and psychoanalysis. Psychoanalytic Psychology. 17(2) (Spring, 2000): 225-242. Fry, Hedy. (Prepared for), Report of the National Planning Meeting on Hate Crime and Bias Activity. Ottawa: Canadian Heritage, Multiculturalism, April, 1997. Gamble, Daniel. Hate Groups and the Media. Ottawa. Department of Sociology, Carleton University. [unpublished research in progress, July 20, 1995]. Garnets, L. D., Herek, G.M., Levy, B. “Violence and victimization of lesbians and gay men: Mental Health Consequences.” Garnets, L. D., Kimmel, C. (ed.). Psychological Perspectives on Lesbian and Gay male Experiences. Between Men -- Between Women: Lesbian and Gay Studies. New York, NY, US: Columbia University Press, 1993. Gates, H.L. Jr., Griffen, A.P., Lively, D.E., Post, R.C., Rubenstein, W. B., Strossen, N. (eds.). Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties. New York and London: New York University Press, 1994. Gilmour, Bruce. Hate-Motivated Violence. (Working Documents WD 1994-e). Ottawa: Department of Justice, 1994. Gillis, Charlie. “University of Toronto refuses to investigate anti-feminist academic. Compared memorial organizers to Ku Klux Klan.” National Post. (Friday, December 8, 2000): A8. Gillis, Charlie.“Conspicuous Silence.” National Post Online. (June 21, 2001) www.nationalpost.com Gillis, Charlie. “Racism drawing local attention.” The London Free Press, (May 29, 1993): C1, C3. Gilson, S. F. and E. Depoy. “Multiculturalism and Disability: A Critical Perspective.” Disability and Society. 15(2) (March 2000): 207-218.

168

Glass, James M. “Against the Indifference hypothesis: The Holocaust and the Enthusiasts for murder.” Political Psychology. 18(1) (March 1997): 129-145. Globe and Mail. March 28, 2001. “Court rejects verdict on anti-abortionists.” Globe and Mail. A11 Globe and Mail. “Offensive on the Internet.” Globe and Mail, (Saturday, March 5, 2001): A14. Goldschmid, Robert. Promoting Equality in the Information Age. Dealing with Internet Hate. Vancouver, BC: Canadian Jewish Congress, 2001. Goldstein, A.S. “Group Libel and Criminal Law: Walking on the Slippery Slope.” Israel Year Book of Human Rights, 22 (1993):95. Gould, Lera Jane. “The Relationship between religious fundamentalism and moral development on homophobia in college undergraduates.” Dissertation Abstracts International. Section B. The Sciences and Engineering. 59(7-B) (January 1999), 3733. Goodman-Delahunty, Jane. “Psychological impairment under the Americans with Disabilities Act: Legal Guidelines.” Professional Psychology: Research and Practice. 31(2) (April, 2000): 197-205. Gosnell, Chris. “Hate Speech on the Internet: A Question of Context.” Queen’s Law Journal. 23:369, (1998). Green, D. P., Adelson, R. P., Garnett, M. (eds.). “The Distinctive political views of hate-crime perpetrators and white supremacists.” In: D.A. Prentice, Miller, D. T. (eds.). Cultural Divides: Understanding and Overcoming Group Conflict. New York, NY, US: Russell Sage Foundation, 1999. Green, Donald .P, Rich, Andrew. “White Supremacist activity and crossburnings in North Carolina.” Journal of Quantitative Criminology. 14(3) (September, 1998): 263-282. Green, Donald P., Glaser, Jack and Andrew, Rich. “From lynching to gay bashing: The elusive connection between economic conditions and hate crime.” Journal of Personality and Social Psychology. 75(1) (July 1998): 82-92. Green, Russell, G., Donnerstein, Edward (eds.). Human Aggression: Theories, Research and Implications for Social Policy. San Diego, California: Academic press, 1998. Greenawalt, Kent. 1995. “Insults, Epithets, and Hate Speech.” Fighting Words: Individuals, Communities, and Liberties of Speech. Princeton, New Jersey: Princeton University Press,

169

1995. Greenawalt, Kent. 1990. “Insults and Epithets: Are They Protected Speech?” Rutgers Law Journal. 42 (1990):287. Grant, Lynda D. “Effects of ageism on individual and health care providers responses to healthy aging.” Health and Social Work. 21(1) (February 1996): 9-15. Grier, W. and P. Cobbs. Black Rage, 1968. Grindlay, Lora. “Gay man claims website is hateful.” The Province. (June 19, 2001): 1. Gross, E. “Hate Crimes are a Feminist Concern.” Affilia: Journal of Women and Social Work. 14(2) (1999): 141-143. Hagey, Rebecca and Robert W. MacKay. “Qualitative research to identify racist discourse: Towards equity in nursing curricula.” International Journal of Nursing Studies. 37(1): 45-56. Haiman, F.S. Speech and the Law in a Free Society. Chicago: University of Chicago Press, 1981. Hamm, Mark. “Cyber-Hate: Computers, Violence and the Racist Right.” Congress Monthly. 1 (November/December, 1999). Hamm, Mark S. Hate Crime: International Perspective on Causes and Control. Cincinnati, Ohio: Anderson Publishing, 1994. Hamm, M. American Skinheads: The Criminology and Control of Hate Crime, 1993. Hannon, P. “How Widespread is Hate Crime?” The Hamilton Spectator, May 15, 1993. Harding, Sandra. “Rethinking standpoint epistemology: What is ‘strong objectivity’?” In, Alcoff & E. Potter (eds.). Feminist Epistemologies. New York: Routledge, pp. 49-82. Harley, Debra A., Hall, Meada and Savage, Todd A. “Working with gay and lesbian consumers with disabilities: Helping practitioners understand another frontier of diversity.” Journal of Applied Rehabilitation Counseling. Special Issue: Cultural Diversity. 31(1) (Spring 2000):411. Harmon, P.J., and J. Check. Role of Pornography in Woman Abuse. LaMarsh Research Programme on Violence and Conflict Resolution, Downsview, Ontario: York University, 1989.

170

Harry, J. “Derivative Deviance; The Cases of Extortion, Fag-Bashing and Shakedown of Gay Men.” Criminology. 19:546 (1982). Harvard Law Review. “Anti-pornography laws and first amendment values.” Harvard Law Review. 98(2):460-502. (1984). Harvard Civil Rights Civil Liberties Law Review. "Bringing hate crime into focus - the Hate Crime Statistics Act of 1990,” Pub. L. No. 101-275. Harvard Civil Rights Civil Liberties Law Review. 26: (Winter, 1991): 261-93. Harvard Law Review. “Hate is not Speech: A [US] Constitutional defense of penalty enhancement for hate crimes.” Harvard Law Review. 106(6) (April, 1993):1314-1331. Harvard Law Review. “First Amendment bias-motivated crimes: court strikes down hate crimes penalty enhancer statute in State v. Mitchell, 485 N.W. 2d 807 (Wis. 1992).” Harvard Law Review. 106 (1993):957-62. Harvard Law Review. “Note: A Communitarian Defense of Group Libel Laws.” Harvard Law Review, 101 (1988): 682. Hate and Bias Activity Roundtable, New Media Working Group. A Call For Action: Hate and Bias Activity Roundtable. (June 22-23, 2000). Ottawa: Prepared for the Honourable Hedy Fry, P.C. M.P. Secretary of State (Multiculturalism) (Status of Women). Headley, B.D. “The Atlanta Tragedy and the rule of official ideology.” Journal of Ethnic Studies. 14(2), 1986. Heinrichs, Terry. “Free Speech and the Zundel Trial.” Queen’s Quarterly. 95:837 (1989). Heinze, E. “Sexual Orientation: A Human Right: An Essay on International Human Rights Law.” Dordrecht: Martinus Nijhoff, (1995), 269-270. Hemmer, J.J. Jr. Hate Speech -- The Egalitarian/Libertarian Dilemma. Howard Journal of Communications. 5(4) (1995): 307-317. Herek, G.M. “On Heterosexual Masculinity: Some Psychical Consequences of the Social Construction of Gender and Sexuality.” American Behavioural Science. 29:563. Herek, G.M. Beyond Homophobia: “A Social Psychological Perspective on Attitudes towards Lesbians and Gay Men.” Journal of Homosexuality 10:1 (1984).

171

Herek, G. M. “Hate Crimes against lesbians and gay men: Issues for research and policy.” American Psychologist. 44(6) (1989): 948-955. Herek, G. M. The psychology of sexual prejudice. Current Directions in Psychological Science. 9(1) (February 2000): 19-22. Herek, G. M., Gillis, R.J., Cogan, Jeanine, C. “Psychological sequelae of hate-crime victimization among lesbian, gay, and bisexual adults.” Journal of Consulting & Clinical Psychology. 67(6) (December 1999): 945-951. Herek, G.M. “Heterosexism, hate crimes, and the law.” In. M. Costanzo, Oskamp, S (eds.). Violence and the Law. Claremont Symposium on Applied Social Psychology. Volume 7. Thousand Oaks, CA, US: Sage Publications, 1994. Hess, Ingrid. Prosecution and Anti-Homosexual Publications. Edmonton, Alberta: Alberta Justice, Appeals and Criminal Law Policy, 1996. Hess, U. Xenophobic Violence in Germany: A Sociological Analysis, 1996. Hoffman, David S. The Web of Hate: Extremists Exploit the Internet. New York, NY: AntiDefamation League, 1996. Hoffman, David S. High-Tech Hate: Extremist Use of the Internet. New York, NY: Anti-Defamation League, 1997. Hoffman, David. Web of Hate: Extremism on the Internet: Proceedings of the International Symposium on Hate on the Internet. Toronto: B’nai Brith, Canada, 1997. Horwood, Holly. May 16, 1989. “Doctors picketed.” The Province (Vancouver). Hughes, Fiona. “Abortion clinics wary in wake of shooting: Neo Nazi link.” Vancouver Courier. November 13, 1994. Human Resources Development Canada. Vocational Rehabilitation and Disabled Persons Act: Annual Report 1994-95. Ottawa: Human Resources Development Canada, 1995. Human Rights Committee, Toonen v Australia (Views on Communication, No 488/1992, adopted 31 March 1994). Human

Rights Committee, Concluding Observations: CCPR/C/79/Add.110), 29 July 1999, para. 23.

172

Poland

29/07/99

(UN

Doc.

Humphreys, Adrian. “Bizarre threats to doctor.” Hamilton Spectator. December 12, 1997. Humphreys, Adrian. “Anti-Abortion package threatens more violence.” Hamilton Spectator, January 2, 1998. Immen, Wallace. “Abortion doctors” security to tighten.” Globe and Mail, A4, October 26, 1998. International Covenant on Civil and Political Rights, Articles 4(2) and 7. International Human Rights Law Group. Combatting Racism Together: A Guide to Participating in the UN World Conference Against Racism. Washington, 2000. Jacobs, Caryn. APatterns of violence: A feminist perspective on the regulation of pornography. Harvard Women’s Law Journal. 7(1):4-44. (1984). Jacobs, James B., Potter, Kimberly. Hate Crimes: Criminal Law and Identity Politics. New York; Oxford: Oxford University Press, 1998. Jacobs, James B., Henry, Jessica S. The Social Construction of a Hate Crime Epidemic. The Journal of Criminal Law and Criminology. 86: (1996) 366-391. Jacobs, James B. and Barry Eisler. "The Hate Crimes Statistics Act of 1990.” McShane, Marilyn, Frank P. Williams III eds. Victims of Crime and the Victimization Process. New York and London: Garland Publishing Inc. (1997) 113-137. Jacobs, J.B. 1992. "The Emergence and Implications of American Hate Crime Jurisprudence.” Israel Yearbook on Human Rights. 22: (1992):113-139. Jacobs, James. B, Eisler, Barry. "The Hate Crimes Statistics Act of 1990. Criminal Law Bulletin. 29:(1993): 99-123. Jacobs, James B. Fall "Should hate be a crime [in the US]?” The Public Interest. 113: (1993) 3-14. Jacobs, James B. "Rethinking the war against hate crimes: a New York City Perspective.” Criminal Justice Ethics. 11: (1992):55-61. Jacobs, James B., Henry, Jessica S. "The Social Construction of a Hate Crime Epidemic.” The Journal of Criminal Law and Criminology. 86: (1996) 366-91. Jacobs, James B. "Implementing hate crime legislation symbolism and crime control.” Annual

173

Survey of American Law.1992/1993: (1993): 541-53. Jacobs, James B., Henry, Jessica S. "The Social Construction of a Hate Crime Epidemic.” Journal of Criminal Law and Criminology. 86: (Winter, 1996): 366. Jacobs, James B. The New Wave of American Hate Crime Legislation. Report from the Institute of Philosophy and Public Policy. 12 (n.d.):9. Jacobsen, Janet.“Tolerating Hate? Or Hating Tolerance? Why Hate Crimes Legislation Won’t Work.” Sojourner. 24(12) (1999):9-11. James, Joy. “Racism, Genocide, and Resistance: The Politics of Language and International Law.” In Callari, A, Cullenberg, S. Biewener, C. eds. Marxism in the Postmodern Age: Confronting the New World Order. New York, NY: Guilford Press, 1995. Janhevich, Derek E. “Appendix B - Police Policies and Procedures B Detailed Findings.” Hate Crime in Canada: An Overview of Issues and Data Sources. Canada: Minister of Industry. Published by authority of the Minister responsible for Statistics Canada, 85-51-XIE. January 2001. Jayasuriya, L. Legislating Against Racial Incitement: Strategies and Rationales. Perth: Universitiy of Western Australia, 1989. Jeffrey, Bill. Standing Up to Hate: Legal Remedies Available to Victims of Hate-Motivated Activity: A Reference Manual for Advocates. Ottawa: Department of Canadian Heritage, 1998. Jenness, Valerie, and Kendall Broad. Hate Crimes: New Social Movements and the Politics of Violence. New York: Aldine De Gruyter, 1997. Jenness, Valerie and Broad, Kendall. "Antiviolence Activism and the (In)Visibility of Gender in the Gay/Lesbian and Women's Movement." Gender and Society. 8(3): (1994):402-423. Jenness, Valerie, and Grattet, Ryken. "The Criminalization of Hate: A Comparison of Structural and Policy Influences on the Passage of 'Bias Crime' Legislation in the United States.” Sociological Perspectives. 39(1): (1996): 129-154. Jenness, Valerie and Kendal Broad. "Violence Against Gays and Lesbians.” Hate Crimes: New Social Movements and the Politics of Violence. New York: Aldine de Gruyter, 49-105 (1997). Jenness, Valerie. "Social Movement Growth, Domain Expansion, and Framing Processes: The

174

Gay/Lesbian Movement and Violence Against Gays and Lesbians as a Social Problem.” Social Problems. 42: (1995):145. Jenness, Valerie. "Hate Crimes in the United States: The Transformation of Injured Persons into Victims and the Extension of Victim Status to Multiple Constituencies.” In Joel Best, ed., Images of Issues: Typifying Contemporary Social Problems. New York: Aldine De Gruyter, xv-xx, 1989. Jenness, Valerie. “Managing Differences and making Legislation: Social Movements and the Racialization, Sexualization, and Gendering of Federal Hate Crime Law in the U.S., 1985.” Social Problems. 46(4) (1999):548-571. Jenness, Valerie. “Making Sense of Hatred: [Course on hate crimes at Washington State University].” Women’s Review of Books. 16(5) (1999):18-20. Jensen, Robert. “Pornography and Affirmative Conceptions of Freedom.” Women and Politics. 15(1): (1995):1-18. Jiwa, Salim. July 12, 2000. “Hooded man stabs abortion doctor.” The Province, A1-A3; Johannessen, L. “A Critical View of the Constitutional Hate Speech Provision” (1997) 13 S. African Journal of Human Rights. Johnson, Kirsten.“Obscenity, Gender, and the Law.” In E. Comack, ed. Locating Law: Race/Class/Gender Connections. Halifax: Fernwood Publishing, 1999. Johnson, Danna. “Hate charges make B.C. history.” Merritt Herald, November 14, 2001. Http://www.state.il.us/courtOpinins/Search.htm (On the Net: Illinois Supreme Court). Jones, J. M. “A perpetrator-less crime?” Ethics and Behaviour. 4(4) (1994): 395-397. Jones, D, Barrett, H. “Class and Hatred.” In: V.P. Varma (ed.). How and Why Children Hate. Bristol, PA, US: Jessica Kingsley Publishers, Ltd, 1993. Jordan, W. White over Black: American Attitudes toward the Negro, 1968. Joyce, Greg. “Canada a leader in international court efforts.” (Rome Statute (1998). The Canadian Press, November 5, 2001. Justice Canada. The Federal-Provincial Working Group on Multicultural and Race Relations in the Justice System, Survey of Hate-Motivated Activity. Ottawa: Justice Canada, 1994.

175

Kaiser Daily Report. “Abortion Providers Call for Greater Response from Law Enforcement to Anthrax Threats Sent to Clinics,” October 22, 2001. Kallen, Evelyn. “Hate on the Net. A Question of Rights/A Question of Power”. Electronic Journal of Sociology. 3(2) (1997).Http://www.sociology.org Kaplan, W. “Maxwell Cohen and the Report of the Special Committee on Hate Propaganda.” In: W. Kaplan, Mcrae, D. (eds.). Law, Policy and International Justice: Essays in Honour of Maxwell Cohen. Montreal and Kingston: McGill-Queens University Press, 1993. Kayfets, B.G. “The story behind Canadas new anti-hate law.” Patterns of Prejudice. 3(4): 5 (1970). Kazarian, S.S. “The Armenian Psyche: Genocide and Acculturation.” Mentalities. 12:74-87 (1997). Kazarian, S.S. Prejudice, Racism and Policing. Diversity Issues in Policing. (Police Foundations Program). Toronto: Edmond Montgomery, 1998. Kellough, J. E. “The Americans with Disabilities Act: A note on personnel policy impacts in state government.” Public Personnel Management. Special Issue. 29(2) (Summer 2000): 211-224. Kelowna Daily Courier, “Merritt Man Charged with Promoting Hate.” Kelowna Daily Courier, Thursday, November 8, 2001, A2. Keough, K. A. and J. Garcia. Social Psychology of gender, race and ethnicity: Readings and projects. New York, NY, US: McGraw-Hill, 2000. Kernberg, Otto. “The psychopathology of Hatred”. In. R.A. Glick, Roose, S. P. (ed.). Race, Power, and Aggression. The Role of Affect in Motivation, Development, and Adaptation. Volume 2 (61-79). New Haven, CT, US: Yale University Press, 1993. Kerzner, Lana and David Baker. A Canadians with Disabilities Act? Winnipeg, Manitoba: Council of Canadians with Disabilities, (May 14, 1999). Kerzner, Lana and David Baker. Taking the Lead: Council of Canadians with Disabilities Proposals for Amending the Canadian Human Rights Act. Submission to Canadian Human Rights Act Review Panel. Canada: Council of Canadians with Disabilities, (October, 1999). Kinsella, Warren. Web of Hate: Inside Canada’s Far Right Network. Toronto, Ontario: Harper Collins Publishers, Ltd., 1994.

176

Kitano, H. Race Relations, 1974. Kitchen, R. “Out of place, knowing one’s place: Space, power and the exclusion of disabled people.” Disability and Society. 13(3) (June 1998): 343-356. Klanwatch. “Hate Violence and White Supremacy: A Decade Review, 1980-1989.” Montgomery: Southern Poverty Law Centre, 1989. Knox, Paul. “Torture now includes domestic violence. Rape, wife assault, sex slavery as damaging as state-inflicted outrages, Amnesty says.” The Globe and Mail. (March 7, 2001): A8. Koocher, G. P. “Case Vignette: Racism and Political Correctness.” Ethics and Behavior. 4(4) (1994): 389. Kovel, J. White Racism: A Psycho-History, 1970. Krafka, C.L. “Sexually Explicit, sexually violent and violent media: The effects of multiple naturalistic exposure and debriefing on female viewers.” University of Wisconsin (unpublished). Kressel, Neil J. Mass Hate: The Global Rise of Genocide and Terror. New York, NY, US: Plenum Press, 1996. Kretzmer, “Free Speech and Racism.” Cardoza Law Review. 8(45) (1987): 8-45. Kube, E. “Collective Violence among young people: A serious challenge to government and society.” EuroCriminology. 7:39-51. (1994). Laghi, Brian. “Hill Defends his position on rights for gays. Alliance leadership candidate and MD wants his party to co-operate with Tories.” Globe and Mail (December 19, 2001), A7. Lahey, K. A. “Pornography and Harm: Learning to Listen to Women.” International Journal of Law and Psychiatry. Special Issue: Socio-Legal Studies of Obscenity. 14(10-2) (1991):117-131. Lahey, Kathleen A. Are We Persons Yet?: Law and Sexuality in Canada. Toronto: University of Toronto Press, 1999. Laitinen, Richard E. and Rakos, Richard F. “Corporate Control of Media and Propaganda: A Behaviour Analysis.” In. P. A. Lamal ed. Cultural Contingencies: Behaviour Analytic Perspectives on Cultural Practices. Westport, CT, US: Praeger Publishers/Greenwood Publishing Group, 1997.

177

Law Reform Commission of Canada. Hate Propaganda: Working Paper 50. Ottawa: Supply and Services Canada, 1986. Law Reform Commission of Canada. Report on Recodifying Criminal Law. Ottawa: Supply and Services Canada, 1988. Lawrence, III, Charles R. “If He Hollers Let Him Go: Regulating Racist Speech on Campus.” Matsuda, M.J. et al. (eds.). Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder, San Francisco, and Oxford: Westview Press, 1993. Lawrence III, Charles R. “If He Hollers Let Him Go: Regulating Racist Speech on Campus.” Duke Law School. 1990. Lawrence, Frederick M. "Resolving the hate crimes/hate speech paradox: punishing bias crimes and protecting racist speech." The Notre Dame Law Review. 68: (1993): 673-721. Lawrence, Christine C. "Measure would increase hate-crimes sentence.” Congressional Quarterly Weekly Report. 51: (1993): 2064. LeBlanc, Daniel. “Senate approval brings Bill C-36 closer to law.” Globe and Mail. (December 19, 2001), A12. LeBourdais, Eleanor. “Potential for violence causing fear among Canadian doctors who perform abortions.” March 14, 1995. LeBourdais, Eleanor.“Potential for violence causing fear among Canadian doctors who perform abortions.” Canadian Medical Association Journal. 152(6): 927-932. March 14, 1995. League for Human Rights of Bnai Brith Canada. Victim Impact of Racially Motivated Crime. Downsview, Ontario: League for Human Rights of Bnai Brith Canada, 1993. Lederer, L and Delgado, R. (eds.). The Price We Pay: The Case Against Racist Speech, Hate Propaganda, and Pornography. New York: Hill and Wang, 1995. Legal Instruments to Combat Racism on the Internet, a report of the European Commission against Racism and Intolerance (ECRI; various regional conferences (Vancouver and Toronto) sponsored by the Department of Canadian Heritage in preparation for the WCAR, 2000. Leets, L. “Response to Internet Hate Sites: Is Speech too free in Cyberspace?” Communication Law & Policy. Special Issue. 6(2) (2001):287-317.

178

Lerner, N. The Crime of Incitement to Group Hatred: A Survey of International and National Legislation. New York: World Jewish Congress, 1965. Lerner, N. “Group Libel Revisited.” Israel Y. B. Human Rights, 17 (1987):184. Lesbian and Gay Issues and Rights Committee of the Canadian Bar Association -- Ontario. Addendum to Submission on Bill C-41. An Act to Amend the Criminal Code (Sentencing) and other Acts in Consequence thereof. Ontario: Canadian Bar Association. (June 1995). Lesser, Shirley. “Violence Against Lesbians.” A Journal About Women. 2(2) vol 13, (1993). Lethbridge, David. This is Racism. Salmon Arm Committee Against Racism. First Report. September 1992. Linton, S. Claiming Disability: Knowledge and Identity. New York: New York University Press, 1998. Linz, D. and Imrich, D. “Child Pornography.” In: S.O. White (ed.) Handbook of Youth and Justice. The Plenum Series in Crime and Justice. New York, NY, US: Kluwer Academic/Plenum Publishers, 2001. Linz, D., Donnerstein, E & Penrod, S. “The Findings and Recommendations of the Attorney Generals Commission on Pornography: Do the Psychological facts fit the political fury?” American Psychologist 42(10) (October 1987):946-953. Lipstadt, Deboarah. “Holocaust Denial at the Centre of the Web of Hate.” Keynote Address, International Symposium on Hate on the Internet. Toronto: B’nai Birth, 1997. Lita, Rose. The Swastika and Maple Leaf: Fascist Movements in Canada in the Thirties. Toronto: Fitzhenry and Whiteside, 1975. Lombardi, Emilia L., Wilchins, Riki Anne, Priesling, Dana, Malouf, Diana. Gender Violence: Transgender Experiences with Violence and Discrimination. American Psychological Association. Drug Abuse Research Center, University of California, Los Angeles, 1998. Longino, H.E. Pornography, Oppression, and Freedom: A Closer Look. In, L. Lederer ed. Take Back the Night: Women on Pornography. New York: William Morrow and Company, (1980). 4045. Lo, V. and Paddon, R. Third-person perception and support for pornography restrictions: Some

179

methodological problems. International Journal of Public Opinion Research. 12(1) (Spring 2000): 80-89. Love, J.C. Tort actions for hate speech and the First Amendment: Reconceptualizing the Competing Interests. Law and Sexuality. 2(29) (1992). Lowman, John, ed. Regulating Sex: An Anthology of Commentaries on the Findings and Recommendations of the Badgley and Fraser Reports. Burnaby, B.C.: Simon Fraser University School of Criminology, 1986. McVay, Ken. Nizkor Project. Vancouver, B.C: [oneline] http://www.nizkor.org McDonald, M. “Cyberhate: Extending persuasive techniques of low credibility sources to the World Wide Web.” Schumann, D. W., Thorson, E. (eds.) Advertising and the World Wide Web. Adverstising and Consumer Psychology. Mahwah, NJ, US: Lawrence Erlbaum Associates, Inc.,n Publishers, 1999. McDonald, Lynne. Abuse and Neglect of Older Adults: A Discussion Paper. Ottawa: Health Canada, family Violence Prevention Unit, 2000. MacKinnon, Catherine. Pornography, Civil Rights, and Speech. In: OToole, L. and Schiffman, J.R. (ed.) Gender Violence: Interdisciplinary Perspectives. New York, N.Y., US: New York University Press, 1997. McKee, M. B, Hayes, S.F, Axiotis, I. R. Challenging heterosexism in college health service delivery. Journal of American College Health. 42(5) (March 1994): 211-216. McNamara, Luke. “Research Report: A Profile of racial villification complaints lodged with New South Wales anti-discrimination board.” International Journal of Discrimination and the Law. 2(4) (1997): 349-378. McNamara, Luke. “Criminalizing Racial Hatred: Learning from the Canadian Experience.” Australian Journal of Human Rights. 1(1): 207 (1994). McAlpine, John D. Report Arising Out of the Activities of the Ku Klux Klan in British Columbia. British Columbia: Presented to the B.C. Minister of Labour, April, 1981. McCaffey, Patrick P. “Policing Hate.” Unpublished paper. Carleton University, Department of Law, 1985. McCaffey, Patrick.

Hate Motivated Crime and Victimization: A Perceptual Study of the

180

Effectiveness of the Ottawa-Carleton Police Bias Crime Unit. Unpublished Masters Thesis. Ottawa: Carleton University, Department of Law, 1998. McCormick, Thelma. “Public Policies and Reproductive Technology: A Feminist Critique.” In, Crow, Barbara and Gottel, Lise eds. Open Boundaries: A Canadian Womens Studies Reader. Toronto: Prentice Hall, 299-306, 2000. McCormick, Thelma. “Appendix I: Making Sense of Research on Pornography.” in Women Against Censorship, ed. Varda Burstyn. Toronto: Douglas & McIntyre, 1985, pp. 182-205. McGovern, J. R. Anatomy of a Lynching: The Killing of Claude Neal, 1982. McKenna, Ian. “Canada’s Hate Propaganda Laws: A Critique.” British Journal of Canadian Studies. 9 (1994):15. “McKinney’s sentence.” [Comments on the sentencing of Aaron McKinney, murderer of Matthew Sheppard]. Counterpunch. 6(19): (November 1, 1999):3. McGuire, Thomas S. "First amendment - free speech - first amendment prohibits hate crime laws that punish only fighting words based on racial, religious or gender animus - R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992).” Seton Hall Law Review. 23 (1993): 1067-1095. McMasters, Paul. "Free Speech versus Civil Discourse: Where Do We Go from Here? Academe. 80(1): (1994):8-13. McAlpine, J.D. Report Arising Out of the Activities of the Ku Klux Klan in British Columbia. (1981):30. McNamara, Luke. Responding to Hate in a Multicultural Society: Forms of Legal Intervention. Fiftieth Anniversary Conference. Australasian Law Teachers Association. Cross Currents: Internationalism, National Identity & Law, 1995. McNamara, Luke. “Anti-Vilification Laws: Protecting Whom from What?” Socio-Legal Bulletin. 13 (1994):28. McNamara, Luke. “The Merits of Racial Hatred Laws: Beyond Free Speech.” Griffith Law Review. 4 (1995): 29. McNamara, Luke. “Criminalizing Racial Hatred: Learning From the Canadian Experience.” Australian Journal of Human Rights. 1 (1994):198.

181

MacKinnon, Catharine. Only Words. Cambridge, Mass.: Harvard University Press, 1993. MacKinnon, Catherine A. Towards a Feminist Theory of the State. (discussing abuse and gender discrimination in society as a result of degrading pornographic material), 1989. MacKinnon, Catharine. “Pornography as Defamation and Discrimination”. Boston University Law Review. 71 (1991):793. MacKinnon, Catharine A. “Reflections on Sex Equality under Law.” Yale Law Journal. 100(12) (1991):1281. MacKinnon, Catharine A. Feminism Unmodified. Discourses on Life and Law, 1987. MacKinnon, Catharine A. “Pornography as Defamation and Discrimination.” In: M.H. Freedman and E.M. Freedman (eds.). Group Defamation and Freedom of Speech. The Relationship Between Language and Violence. Westport, Connecticut; London: Greenwood Press, 1995. MacKinnon, C and Andrea Dworkin. Pornography and Civil rights: A New Day for Women’s Equality. Minneapolis: Organizing Against Pornography, 1988. MacKinnon, Mark. “Web cleanup law targets child porn.” The Globe and Mail. (Thursday, March 15, 2001): A1, A4. MacKay, W. “Freedom of Expression: Is it all just talk?” Canadian Bar Review. 68(713) (1989). MacLeans (Toronto Edition). “A Tolerant nations hidden shame: A Federal study suggests that thousands may be victims of hate crime.” MacLeans. 108(33) (1995):40-43. MacMillan, Craig S. Myron, G. “Criminal Proceedings As A Response to Hate.” Paper presented at the Hatred In Canada: Perspectives, Action, and Prevention Conference. Victoria: University of Victoria, 1998. Maguire, Mike and Joanna Shapland. “Provision for Victims in an International Context.” Davis, Robert C. Arthur J. Lurigui and Wesley G. Skogan eds. Victims of Crime. (Second Edition). Thousand Oaks; London; New Delhi: Sage, 1997. Mahoney, Kathleen. “R. v. Keegstra: A Rationale for regulating pornography?” Case Comment. McGill Law Journal. 37:242 (1992). Mahoney, Kathleen. “The Canadian Constitutional Approach to Freedom of Expression in Hate Propaganda and Pornography.” Law and Contemporary Problems. 55 (1992):77.

182

Mahoney, Kathleen. “Hate Vilification Legislation and Freedom of Expression: Where is the Balance.” Australian Journal of Human Rights. 1 (1994):353. Mahoney, Kathleen E. "The Constitutional Law of Equality in Canada.” New York University Journal of International Law and Politics. 24 (Winter, 1992):759-793. Mahoney, Kathleen. "The Canadian Constitutional approach to freedom of expression in hate propaganda and pornography." Law and Contemporary Problems. 55(1) (Winter, 1992):77105. Mahoney, Kathleen. “Hate Vilification Legislation and Freedom of Expression -- Where is the Balance?” Australian Journal of Human Rights. Mahoney, Kathleen. The Limits of Liberalism in Canadian Perspectives on Legal Theory. Devlin, Richard ed. Eamon Montgomery, 1991. Major, Marie France. “Sexual-Orientation Hate Propaganda: Time to Regroup.” Canadian Journal of Law and Society. 11(1): (1996). Makin, Kirk. “Latimers case test mandatory murder penalties. Supreme Court to rule if mercy killer should serve less than minimum sentence.” The Globe and Mail. (January 17, 2001) A3. Malamuth, Neil and James Check. “The Effects of Aggressive-Pornographic Mass Media Stimuli.” Advances in Experimental Social Psychology. 15, 1982: 104-32. Malamuth, Neil and James Check. “The effects of mass media response on acceptance of violence against women: A field experiment.” Journal of Research in Personality. 15: 436-446, 1981. Malamuth, Neil et al. “Testing Hypotheses Regarding Rape, Exposures to Sexual Violence, Sex Difference and the Normality of Rapists.” Journal of Research In Personality. 13:121-137. (1980). Malamuth, Neil and James Check. “Penile tumescence and perceptual response to rape as a function of victims perceived reactions.” Journal of Applied Social Psychology. 10(6): 528-554 (1998). Malamuth, James. “The confluence Model as an organizing framework for research on sexually aggressive men: Risk moderators, imagined aggression, and pornography consumption.” In: R.G. Russell, and Edward Donnerstein, (eds.). Human Aggression: Theories, Research and Implications for Social Policy. San Diego, California: Academic Press, 1998.

183

Malamuth, N.M. “Aggression against Women: Cultural and Individual Cases.” In, N.M. Malamuth and E. Donnerstein. eds. Pornography and Sexual Aggression. New York: Academic Press, (1984)19-52. Malamuth, N.M. & Donnerstein, E. eds. Pornography and Sexual Aggression. New York: Academic Press, 1984. Martin, Robert ed. "Country Reports: Canada.” Speaking Freely: Expression and the Law in the Commonwealth. Toronto: Irwin Law, 1999. Martin, Robert. “Group Defamation in Canada.” In M. Freedman and E. Freedman eds., Group Defamation and Freedom of Speech: The Relationship Between Language and Violence. Westport, Connecticut: Greenwood Press, 1995. Martin, Robert. “Group Defamation in Canada.” In: M. H. Freedman and E. M. Freedman (eds.). Group Defamation and Freedom of Speech: The Relationship Between Language and Violence. Westport, Connecticut and London: Greenwood Press, 1995. Martin, Susan E. “Cross-burning is not just an Arson: Police Social Construction of Hate Crimes in Baltimore County.” Criminology. 333 (1995):303-326. Martin, Douglas. “Hate Mongering Teacher Tests Canada’s Patience.” New York Times. (May 26, 1983): A2. Martin, R. “Does Libel Have a Chilling Effect in Canada?” Studies in Communications. 4: (1990):143. Martin, Robin. Shades of Right: Nativist and Fascist Politics in Canada, 1920-1940. Toronto, Ontario: University of Toronto Press, 1992. Mattijssen, .A.M., Smith, C.L. “Dutch Treats: The Lessons the U.S. Can Learn from How the Netherlands Protects Lesbians and Gays.” Amherst University Journal of Gender and Law. (1996). Major, M.F. “Sexual Orientation Hate Propaganda: Time to Regroup.” Canadian Journal of Women and the Law. 13 (1996): 221-240. Mane, Nandini. “Children and Hate: Hostility Caused by Racial Prejudice.” In. V.P.. Varma (ed.). How and Why Children Hate. Bristol, PA, US: Jessica Kingsley Publishers, Ltd, 1993.

184

Martin, Robert. “Group Defamation in Canada.” In: M.H. Freedman and E.M. Freedman (eds.). Group Defamation and Freedom of Speech: The Relationship Between Language and Violence. Westport, Connecticut; London: Greenwood Press, 1995. Marcus, Laurence R. Fighting Words: The Politics of Hateful Speech. Westport, CT, US: Praeger Publishers/Greenwood Publishing. Matas, Robert. “Police step up protection for doctors.” Globe and Mail. November 10, 1994. Matas, Robert. “Sniping mirrors new stage of abortion violence, expert says.” Globe and Mail. November 11, 1994. Matas, David. Hate on the Internet: Recommendations for Action. Proceedings of the International Symposium on Hate Online: Youth 2000. Vancouver: Canadian Anti-racism Education and Research Society, 2000. Matas, David. “Countering Hate on the Internet: Recommendations for Action.” Proceedings of the International Symposium on Hate and the Internet. Toronto: B’nai Brith, Canada, 1997. Matsuda, M.J., C.R. Lawrence III, R. Delgado, K. Willliams Crenshaw (eds.). Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder, San Francisco, Oxford: Westview Press, 1995. Matsuda, M. J. “Public Response to Racist Speech: Considering the Victims Story.” Matsuda, M. J. et al (eds.). Words That Wound: Critical Race Theory, Assaultive Speech and the First Amendment. Boulder, San Francisco, and Oxford: Westview Press, 1993. Matsuda, M. J. “Public Response to Hate Speech: Considering the Victims Story.” Michigan Law Review. 87. (1989). Matsuda, M.J. “Outsider Jurisprudence.” Michigan Law Review. 87: 2320 (1989). Maxwell, S.R. Youth Participation in Hate-Motivated Crimes: Research and Policy Implications, 1995. Meenan, Helen. “Age discrimination in the United Kingdom.” International Journal of Discrimination and the Law. 3(4) (1999): 227-248. Meller, Paul. “Europe Moving Toward Ban on Internet Hate Speech.” The New York Times, November 10, 2001.

185

Menzies, H. “The Social Construction of Reproductive Technologies.” In B. Crow et al (eds.). Open Boundaries: A Canadian Women’s Studies Reader. Toronto: Prentice Hall Allyn and Bacon Canada, 2000. Mill, J.S. On Liberty. Harmondsworth: Penguin, 1982 [1859]. Ministry of Multiculturalism and Immigration. British Columbia Provincial Consultations: Preparations for the World Conference Against Racism, Racial Discrimination and Related Intolerance. Victoria, 2001. Mitchell, L. M. and A. Buchele-Ash. “Abuse and Neglect of Individuals with Disabilities: Building protective supports through public policy.” Journal of Disability Studies. 10(2) (2000): 225243. Mitchel, Lou. “Anthrax Probe not limited to foreign origin.” November 24, 2001. Http://www.buffalonews.com/editorial/20011024/1033505.asp Mertens, Donna. “Emancipatory Paradigm.” Research Methods in Education and Psychology: Integrating Diversity with Quantitative & Qualitative Approaches. Thousand Oaks, London, New Delhi: Sage Publications, 1998, p. 15-21. Mock, Karen R and Armony, Lisa. “Hate on the Internet, Speaking About Rights: The Internet and Human Rights.” Vol. XIII No. 2, Canadian Human Rights Foundation, 1998. Mock, Karen. “Hate on the Internet.” Forum. 7(1). Canadian Human Rights Commission, (Summer/Fall 1997). Mock, Karen. The Extent of Hate Activity and Racism in Metropolitan Toronto. Commissioned by the Access and Equity Centre of the Metro Chief Administrator's Office. Toronto: League for Human Rights of B'nai Brith Canada, 1996. Mock,, Karen. "Combating Racism and hate in Canada today: Lessons of the Holocaust.” Canadian Social Studies. 29(4) (Summer 1995):143-46. Mock, Karen. “Freedom of expression vs. political correctness -- where do you draw the line?” Canadian Social Studies. 30 (Fall 1995):2-4. Moon, Richard. “Drawing Lines in a Culture of Prejudice: R. v. Keegstra and the Restriction of Hate Propaganda.” University of British Columbia Law Review. 26:99 (1992). Murray, David. “Disabled relieved by courts decision.” The Globe and Mail. (January 17, 2001): A4.

186

NGO Forum. “Revised Draft Report from the Forum of the Non-Governmental Organizations.” All Different, All Equal: From Principle to Practise. Strasbourg: European Council, 2000. Namaste, Ki. Transgenders and Violence: An Exploration. A brief submitted to the Commission des droits de la personne du Quebec. Montreal, November 1993. Namaste, Ki. "The Politics of Inside/Out: Queer Theory, Poststructuralism, and a Sociological Approach to Sexuality.” Seidman, Steven ed. Queer Theory/Sociology. Cambridge, Mass and Oxford: Blackwell Publishers, (1996):194. Namaste, Ki. "From Performativity to Interpretation: Toward a Social Semiotic Account of Bisexuality." Hall, Donald E., Pramaggiore, Maria eds. RePresenting Bisexualities: Subjects and Cultures of Fluid Desire. New York and London: New York University Press, (1996):70-95. Namaste, Ki. "'Tragic Misreadings': Queer Theory's Erasure of Transgender Subjectivity." Beemyn, Brett and Mickey Eliason eds. Queer Studies: A Lesbian, Gay, Bisexual and Transgender Anthology. New York and London: New York University Press, (1996):169. National Post. “Exploited Memories.” National Post. (December 8, 2000): A19. National Association of Women and the Law. Recommendations in Regard to Pornography in the Fraser Report and to the Governments Paper on the Report of the Special Committee on Pornography and Prostitution. Ottawa: National Association of Women and the Law, October 1985. National Organization of Women and the Law. August-September, 1995. The Civil Rights Remedy of the Violence Against Women Act. Prepared by Julie Goldscheild and Susan Kraham of the N.O.W. Legal Defense and Education Fund. New York: N.O.W. [online] www.abanet.org/cle/clenow/dv/crr.htm. National Organization of Women and the Law. The New Civil Rights Remedy for Victims of Gender-MotivatedViolence.(42 U.S.C. 13981 (1994)). [online] www.abanet.org/cle/clenow/dv/dvpart2.html National Organization of Women Legal Defense and Education Fund. The Violence Against Women Act: Civil Rights Protection for Gender-Motivated Violence. New York: National Organization of Women. (1996) [online] http://www.abanet.org/cle/clenow/dv/civrt.html Nichols, Mark. July 24, 2000. “In the Name of Life.” MacLean’s Magazine.

187

Nova Scotia. Disabled Persons Commission. Words and Expressions for Equality. Halifax: Disabled Persons Commission, 1999 Nourbese, Phillip. Frontiers: Selected Essays and Critiques on Racism, 1992. O’Neil, Peter and Chad Skelton. “Ottawa mulls making gay-bashing a hate crime.” The Vancouver Sun, November 22, 2001. O’Reilly, Michael. “When the protest comes home: Ontario doctor latest victim of anti-abortion picketing tactic. Canadian Medical Association Journal.147(10) 1992. Oddone-Paolucci, Elizabeth, et al. “A meta-analysis of the published research on the effects of pornography.” In: Violato, C. et al (Eds.). The Changing Family and Child Development. Aldershot, England: Ashgate Publishing Ltd., 2000. Oliver, M. The Politics of Disablement: A Sociological Approach. Hampshire and London. Macmillan, 1990. Oliver, M. Understanding Disability: From Theory to Practice. New York: St. Martins Press, 1996. Olmstead, Audrey P. “Words are Acts: Critical Race Theory as a Rhetorical Construct.” Howard Journal of Communications. 9(4) (Oct-Dec 1998): 323-331. Ontario. Ministry of Citizenship, Office for Disability Issues. Word Choices: A Lexicon of Preferred Terms for Disability Issues. Toronto: Queens Printer, 1992. Ottawa, National Action Plan to Reduce the Abuse of Older Adults In Canada. Ottawa: One Voice, The Canadian Seniors Network, 1995. Overboe, J. “Difference in itself: Validating Disabled People: Dustbin for Disapproval?” Disability and Society. 5(4) (1999):17-29. Owyoung, B. H. “The Psychological effects and treatment of hate crime victimization on ChineseAmericans and Asian-Americans residing in Castro Valley, California.” Dissertation Abstracts International (59(9-B) (March 1999): 5103. Patriot Act (U.S.) Http://www.politechbot.com/docs/usa.act.final.102401.html Pinderhughes, H. “The anatomy of racially motivated violence in New York City: A case study of youth in Southern Brooklyn.” Social Problems. 40(4):478-492 (1993).

188

Pemberton, Kim. April 2, 1998. “Groups demand names of abortion providers.” Vancouver Sun. Peters. J. “When fear turns to hate and hate to violence: The persecution of gays is increasing.” Human Rights. 18(1) (1991). Petersen, Cynthia. “A Queer Response to Bashing: Legislating Against Hate.” Queens Law Journal. 16: 237 (1991). Petchesky, Rosalind Pollack. Abortion and Women’s Choice. The State, Sexuality, and Reproductive Freedom. Boston: Northeastern University Press, 1990. Poling, Jim. January 20, 1999. “Assassin”s bullet tested in abortion sniper case.” Hamilton Spectator. Prentice, D. E., Miller, D. T. (eds.). Cultural Divides: Understanding and Overcoming Group Conflict. New York, NY, US: Russell Sage Foundation, 1999. Press, Marlane. “Internet Report Released.” Canadian Jewish News, 2001. Prilleltensky, Ora. “Women with disabilities and feminist therapy.” Women and Therapy. 18(1) (1996):87-97. Pro-Choice Connection and the Pro-Choice Action Network (Joyce Arthur, Pro-Choice Action Network: http://www.prochoiceconnection.com/pro-can. Prout, Jan. “Hate-Crimes Law to Be Toughened.” 365Gay.com Newscenter, November 29, 2001. Prutschi, Manuel. “There ought to be a law against hate. Without anti-hate legislation racism will rear its ugly head.” The Globe and Mail. (June 16, 1988). Prutschi, Manuel. “Racist expression and the law in Canada.” Shma: A Journal of Jewish Responsibility, (January 5, 1990): 37-39. Prutschi, Manuel. Holocaust Denial Today. Canada: Canadian Jewish Congress. (1999) [online] http://www.nizkor.org/hweb/orgs/canadian/canadian-jewish-congress Prutschi, Manuel.” Holocaust Denial Today.” Lipsitz, Edmond Y. ed. Canadian Jewry Today: Whos Who in Canadian Jewry. Downsview, Ontario: J.E.S.L. Educational Products, (1989):30-36. Prutschi, Manuel. “The Zundel Affair.” in Davies, Alan ed. Antisemitism in Canada: History and

189

Interpretation. Waterloo, Ontario: Wilfred Laurier Press, (1992): 249-277. Prutzman, P. “Bias-Related Incidents, Hate Crimes, and Conflict Resolutions.” Education and Urban Society. 27(1):71-81 (1994). Racicot, Michel et. al. The Cyberspace is not a No Law Land: A Study of the Issues of Liability for Content Circulating on the Internet. Canada: Industry Canada, February 1997. Rauf, N. Naeem. “Freedom of Expression, The Presumption of Innocence and Reasonable Limits: An Analysis of Keegstra and Andrews.” Criminal Reports. (3rd Series). 65:356. (1989). Reasons, C. E., Hughson, Q. “Violence Against Gays and Lesbians.” In: N.J. Pallone (ed.). Race, Ethnicity, Sexual Orientation, Violent Crime: The Realities and the Myths. Binghamton, NY, US: The Haworth Press, Inc., 2000. Renke, R.W. “Case Comment: Vriend v. Alberta: Discrimination, Burdens of Proof, and Judicial Notice.” Alberta Law Review. 34 (1996): 942-43. Report on Sexual Offences Against Children, Robin Badgley, Chairman. Ottawa: Government of Canada, November, 1984. Reuters, “Cybercrime Treaty Finally Ready,” Wire News, November 21, 2001. (On European Convention). Reuters, “Europeans Adopt First Cybercrime Treaty,” Strasbourg, France (Reuters). Thursday, November 8, 2001. Richards, Deputy Larry. “Domestic Terrorism: Army of God, Terrorism Early Warning Group,” Emergency Operations Bureau, Los Angeles County Sheriffs Department, March 23, 1998 (also published in Police and Security News, Quakertown, Pennsylvania, July/August, 1998). Ridington, Jillian. Freedom From Harm or Freedom of Speech? A Feminist Perspective on the Regulation of Pornography. Ottawa: National Association of Women and the Law, February, 1983. Ridington, Jillian. Confronting Pornography: A Feminist in the Front Lines. Ottawa: Canadian Research Institute for the Advancement of Women. Ottawa: CRIAW-ICREF, 1989. Roberts, David. November 13, 1997. “Abortion link pursued in shooting: Pro-choice advocates beef up security.” Globe and Mail.

190

Roberts, David. “Father grapples with life sentence. Farmer has no regrets, says he didn’t think about jail when he took his daughters life.” The Globe and Mail. (January 19, 2001): A4. Roberts, Julian V. Disproportionate Harm: Hate Crime in Canada, An Analysis of Recent Statistics. Canada: Department of Justice, 1995. Roberts, J.V. "Hate Motivated Crimes Deserve Harsher Penalties." Ottawa Citizen. Nov. 24, 1994. Roberts, J.V. "Statistics on Race and Crime: Towards a Canadian Solution." Canadian Journal of Criminology. 36 (1994):175-186. Roberts, Julian V. Criminal Justice Processing of Sexual Assault Cases. Ottawa: Canadian Centre for Justice Statistics. Integration and Analysis Program, 1994. Roberts, Julian V. Legislative Responses to Hate-Motivated Crime. Draft Paper of the Domain Seminar on Social Issues. Ottawa: Department of Canadian Heritage, 1999. Roberts, David. "B.C. town in free-speech crossfire. Far-right activists to meet on UN's anti-racism day.” The Globe and Mail. (March 19, 1998):A1, A4. Rosen, Philip. Hate Propaganda. Ottawa: Library of Parliament, Research Branch, (January, 2000). Ross v. New Brunswick School District No. 15 (1996), 25 C.H.R.R. D/175 (S.C.C.). Ross, Malcolm.(various publications). Web of Deceit, The Real Holocaust, Spectre of Power, Christianity vs. Judeo-Christianity (The Battle for Truth). New Brunswick, Canada, 1980s (various publications). Ross, Jeffrey Ian. "Hate Crime in Canada: Growing Pains with New Legislation.” Hamm, Mark S., ed. Hate Crime: International Perspectives on Causes and Control. Cincinnati, Ohio: ACJS/Anderson Monograph Series, (1994):151-172. Rothblum, Esther D., Bond, Lynne A. Preventing Heterosexism and Homophobia. Primary Prevention of Psychopathology. Thousand Oaks, CA, US: Sage Publications, 1996. Rubin, Gayle. “The Traffic in Women: Notes on the Political Economy of Sex.” In. R. Reiter (ed). Toward An Anthropology of Women. New York: Monthly Review Press, 1975. Rubenstein, William B. Since “When is the Fourteenth Amendment Our Route to Equality?: Some Reflections on the Construction of the Hate-Speech Debate from a Lesbian/Gay Perspective.” In: H.L Jr. Gates, Griffen, A.P., Lively, D.E., Post, R.C., Rubenstein, W.B., Strossen, N. eds.

191

Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties. New York and London: New York University Press, 1994. Ruscher, J.B. Prejudiced Communication: A Social Psychological Perspective. New York, NY, US: The Guilford Press, 2001. Russell, D.E H. Dangerous Relationships: Pornography, Misogyny, and Rape. Thousand Oaks, CA, US: Sage Publications, 1998. Russell, D. E. H. Against Pornography: The Evidence of Harm. Thousand Oaks, CA, US: Sage Publications, 1994. Russell, D.E.H. “Pornography and Rape: A Causal Model.” Political Psychology. 9(41) (1988):73. Russell, D.E.H. “Pornography and Violence: What Does the New Research Say?” In L, Lederer ed. Take Back The Night: Women On Pornography. New York: Morrow, (1980):218-238. Russell, Diana E.H. Sexual Exploitation: Rape, Child Abuse, and Workplace Harassment. Beverley Hills: Sage, 1984. Russell, Diana E.H. Pornography causes harm to women. In: M.R. Walsh et al (eds.). Women, Men and Gender: Ongoing Debates. New Haven, Conncecticut: Yale University Press, 1997. Russell, Diana E.H. Against Pornography: The Evidence of Harm. Berkeley, California: Russell Publications, 1994. Russell, Diana. Dangerous Relationships: Pornography, Misogyny, and Rape. Thousand Oaks, CA: Sage, 1998. Russell, Diana, E. H. (Ed.).Making Violence Sexy: Feminist Views on Pornography. 1993. Samson, Gareth. Illegal and Offensive Conduct on the Information Highway. Background Paper. Canada: Industry Canada, June 19, 1995. Sandmann, W. G. “Freedom of Expression and/or freedom from racial and sexual harassment: College Campuses and hate speech Codes.” Dissertation Abstracts International. 53( 7-A): (January 1993): 2163. Saunders, Doug. “U.S. got what it deserves, Falwell says.” The Globe and Mail. September 15, 2001. Sayce, Liz. From psychiatric patient to citizen: Overcoming discrimination and social exclusion.

192

New York, NY, US: St. Martins Press, 2000. Scahill, A. “Can Hate Speech Be Free Speech?” (1994) 4 Australiasian Gay and Lesbian Law Journal. Scanlon, T. “A Theory of Freedom of Expression.” In: R. Dworkin (ed.). The Philosophy of Law. Oxford University Press, 1977. Schall, C. M. “The Americans with Disabilities Act -- are we keeping our promise? An analysis of the effect of the ADA on the employment of persons with disabilities. Journal of Vocational Rehabilitation.” Special Issue: Vocational Rehabilitation and Chronic Illness. 10(3) (June, 1998): 191-203. Schell, B. H. and Bigelow, B. “Expert Testimony in Pornography Trials: A Role for the Social Scientist”. Behavioural Sciences and the Law. 8(3) (Summer 1991): 301-311. Scherer, Ron. “Computer-generate porn raises legal questions: Case ends in plea bargain. U.S. Supreme Court to consider legality of pornographic images of children.” National Post. (February 8, 2001): A14. Schissel, B. Social Dimensions of Canadian Youth Violence. Don Mills: Oxford University Press, 1993. Schissel, B. and L. Mahoods eds. Social Control in Canada: A Reader on the Science of Deviance. Don Mills, Ontario: Oxford University Press, 1996. Schissel, B. Blaming Children: Youth Crime, Moral Panics and the Politics of Hate. Halifax, Nova Scotia: Fernwood Press, 1997. Schneider, H. J. Violence against foreigners in the Federal Republic of Germany. International Journal of Offender Therapy and Comparative Criminology. 38(3) (Fall, 1994): 179-182. Schneider, J.P. “A qualitative study of cybersex participants: Gender differences, recovery issues, and implications for therapists.” Sexual Addiction and Compulsivity. 7(4) (2000):249-278. Schreier, B. A. and Werden, D. L. “Psychoeducational programming: Creating a context of mental health for people who are lesbian, gay, or bisexual.” In: R. M. Perez, DeBord, K.A. (ed.). et al.,Handbook of Counselling and Psychotherapy with Lesbian Gay, and Bisexual Clients. Washington, DC, US: American Psychological Association, 2000. Schuman, Steeh and Bobo. Racial Attitudes in America.

193

Schwartz, H. “Defamation and Democracy.” 1996. 3 Parker Sch. J. E. Eur. L. 217. Secretary of State (Multiculturalism and the Status of Women). A Call For Action: Hate and Bias Activity Roundtable. Ottawa, 2000. Secretary of State (Multiculturalism and the Status of Women). Report: Hate and Bias Activity Roundtable. Ottawa, 2000. Sedlacek, W. and G. Brooks. Racism in American Education: A Model for Change, 1976. Segal, Lynne. “Pornography and Violence: What the experts really say.” In: L. L. OToole, and Schiffman, J.R. (Eds.). Gender Violence: Interdisciplinary Perspectives. New York, NY: New York University Press. Senn, C.Y. A Comparison of Women’s Reactions to Non-Violent Pornography, Violent Pornography, and Erotica. Unpublished Masters Thesis, University of Calgary, Calgary, Canada, 1985. Senn,Charlene Y. & Radtke, H.L. Exposure to Pornography and Sexual Victimization: An Examination of Women’s Experiences. Paper presented at the meeting of the International Society for Research on Aggression, Chicago, IL, July 1986. Senn, Charlene Y., and Radtke, H. Lorraine. “Women’s Evaluations of and Affective Reactions to Mainstream Violent Pornography, Nonviolent Pornography, and Erotica.” Violence and Victims. 5(3) (1990):143-155. Senn, Charlene Y. The Impact of Pornography in Women’s Lives. Unpublished doctoral dissertation, York University, Toronto, 1991. Senn, Charlene Y. “Women’s Multiple Perspectives and Experiences with Pornography.” Psychology of Women Quarterly. 17 (1993): 319-341. Seto, M. et al. “The role of pornography in the etiology of sexual aggression.” Aggression and Violent Behaviour. 6(1): 35-53 (January-February, 2001). Shaffer, Martha. “A Criminal Responses to Hate-Motivated Violence: Is Bill C-41 Enough?” McGill Law Journal. 41 (1995):199. Sheffman, Alan. “A Strategic Approach to Hate Propaganda -- An Analytical Framework.” Thornhill, Ontario: Human Rights Training and Consulting. [A paper presented in Ottawa

194

during the Workshop on police response to hate/bias crime by the Solicitor General of Canada Secretariate and Carleton University in April, 1994]. Sher, Julian. White Hoods: Canadas Ku Klux Klan. Vancouver, B.C: New Star Books, 1983. Sherry, Mark and Sarah Deer. Hate Crimes Against People with Disabilities. Cavnet document No. 1067.School of Social Work, University of Queensland. [online] www.wwda.org.au/hate.htm AUS legislation has only recently broadened its concept of hate crime to include those committed against people with disabilities. (January, 2000). Shoop, Julie Gannon. "Freedom Versus Equality: Battle over Hate Speech.” Trial. 27 (January 1991):12-14. Siegal, Paul. “Lesbian and Gay Rights as Free Speech Issue: A Review of Relevant Caselaw.” Journal of Homosexuality. 21(1-2) (1991): 203-209. Simon, Scott. “America Transformed: Unrighteous Reverends.” (Jerry Falwell, Pat Robertson and Mark Bingham). NPR’s Weekend Edition with Scott Simon. (September 22, 2001). www.npr.org/programs/wesat/ Simpson, Jeffrey. “Is this a Cross I see before me?” The Globe and Mail. (The Nation). (April 10, 2001): A15. Simpson, Jeffrey. “Yes, Victoria, there is a limit to free speech.” The Globe and Mail. (January 2, 2001): A13. Sinason, V. “Hate and Learning Disability: Issues in Psychoanalytical psychotherapy with chilren with a learning disability.’ In. V.P. Varma (ed.). How and Why Children Hate. Bristol, PA, US: Jessica Kingsley Publishers, 1993. Sims, P. The Klan, 1982. Skelton, Chad. July 13, 2000. “Ottawa says law adequate to protect abortion doctors; B.C. premier suggests Criminal Code be changed to further penalize those who attack doctors who perform abortions.” Vancouver Sun. A1-A5. Smith, Miriam. “Appendix I: Court Cases Which Sexual Orientation Arguments under Section 15 Were Raised, 1985-1996.” Lesbian and Gay Rights In Canada: Social Movements and Equality-Seeking, 1971-1995. Toronto, Buffalo, London: University of Toronto Press, 1999. Smith, Charlie.“Local shooting reflects escalating anti-abortion tactics.” Georgia Strait (Vancouver).

195

November 11, 1994. Solomon, Tamsim. “Anti-Semitism as Free Speech: Judicial Responses to Hate Propaganda in Zundel and Keegstra.” Australian-Canadian Studies. 13:1(1995). Spillane, Lori A. “Hate Crime: A Legal Perspective.” Hendricks, J. E., Byers, B. (ed.). Multicultural Perspectives in Criminal Justice and Criminology. Springfield, US.: Charles C. Thomas Publisher, 1994. Star Publications (Malaysia). “French Court: ISPs not liable for blocking racist sites.” Wednesday, October 31, 2001. Stern, Kenneth. Hate and the Internet. New York: The American Jewish Committee, 1999. Stefan, Susan. Unequal Rights: Discrimination against people with mental disabilities and the Americans with Disabilities Act. Washington, D.C.: American Psychological Association, The Law and Public Policy: Psychology and the Social Sciences, 2001. Stewart, Jane. “Ottawa to target Net pedophiles, says justice minister.” The Province. Sunday, December 3, 2000, p. A41. Stoller, Robert J. Porn: Myths for the Twentieth Century. New Have, CT, US: Yale University Press, 1991. Strossen, N. “Why Censoring pornography would not reduce discrimination or violence against women.” In: M.R. Walsh et.al. Women, Men and Gender: Ongoing Debates. New Haven, Connecticut, Yale University Press, 1997. Strossen, N. “Balancing the Rights to Freedom of Expression and Equality: A Civil Liberties Approach to hate Speech on Campus.” In: S. Coliver. Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination. London: Article 19, 1992. Strassen, Nadine. Defending Pornography: Free Speech, Sex, and the fight for Womens Rights. New York: NY: Scribner, 1995. Sunahara, Ann Gomer. The Politics of Racism: The Uprooting of Japanese Canadians during the Second World War. Toronto: James Lorimer Company, 1981. Sun Media Newspaper. “More hate groups on net.” The London Free Press, (February 17, 1998), A8.

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Sunday Monitor, “Uganda. Are homos NRMs new political ladder? Yes.” (November 7, 1999). Suriya, Senaka K. Combatting Hate?: A Socio-Legal Discussion on the Criminalization of Hate in Canada. A Thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements for the degree of Master of Arts. Department of Law, Carleton University, Ottawa, Ontario. (May 11, 1998). Swainson, G. and P. Small. “Province looks at tougher laws after London Cross-Burning.” The Toronto Star. (1993): A10. Swiss Institute of Comparative Law. Legal Instruments to Combat Racism on the Internet. Strasbourg: European Commission against Racism and Intolerance, 2000. The Province. November 13, 1997. “Abortion league sees link in attacks.” The Province. November 13, 1997. The Province. “A test of his own medicine”:Anti-abortionists say a doctor shot in his Vancouver home got when he deserved -- and warn of more violence to come.” The Province. November 13, 1994. Tak-fai Lau, Joseph and Cheung, Chau-kiu. “Discriminatory attitudes to people with intellectual disability or mental health difficulty.” International Social Work. 42(4) (October 1999):431444. Tamman, Maurice and Ron Martz. “FBI probing anthrax threats to abortion clinics in 17 states.” Atlanta Journal-Constitution Staff Writers, November 30, 2001. http://www.accessatlanta.com/ajc/terrorism/anthrax/1030clinics.html Tayor, Eddie. “Hanging up on Hate: Contempt of Court as a Tool to Shut Down Hatelines.” National Journal of Constitutional Law, 1995. Taylor, E. “Cross-Purposes: The Liberal Communitarian Debate.” In: N. Rosenblum (ed.). Liberalism and the Moral Life. Cambridge, Massachusets: Harvard University Press, 1989. The Canadian Oxford Dictionary. Toronto: Oxford University Press, 1998. The Los Angeles Times. “ Temple Arsonists Sent to Prison. Crime: The two brothers face trial in another hate crime, the slaying of a gay couple.” December 1, 2001. Tibbets, J. “Police Cant Use Hate Laws to Ban Phelps: Anti-Gay Preacher Labels Supreme Court Judges Nine Heretics.” The Ottawa Citizen, (June 25, 1999): F6.

197

Tibbets, J. A “Robinson’s Bill would ban hatred against gays.” The [Montreal] Gazette. (October 28, 1999): A9. Titchkosky, T. “Disability Studies: Old or new.” Canadian Journal of Sociology and Anthropology. 25(5) (2000):197-224. Titchkosky, Tanya. “A Rose by any other Name?: People-First Language in Canadian Society.” The Canadian Review of Sociology and Anthropology. 38(2) (2001):125. Toughill, Kelly. “Abortion protester limit to be reviewed.” Toronto Star. June 29, 1995. Turner, Adrienne.“A Burnaby man who is the subject of a human rights complaint for spreading anti-gay hate messages is suing his accusers.” Vancouver Province. November 28, 2001, A9. United Nations. The United Nations and Disabled Persons: Information Note Prepared by the United Nations Secretariat, Division for Social Policy and Development.(1996) Gopher://gopher.un.org/00/sec/dpcsd/dspd/disabled/D1S96. U.S. Commission on Obscenity and Pornography, 1970. U.S. Department of Justice, National Task Force on Violence Against Health Care Providers, Washington, D.C., www.usdoj.gov/crt/crim/faceweb.htm. U.S. Bureau of Justice Assistance. A Policymakers Guide to Hate Crimes. Washington, D.C.: US Bureau of Justice Assistance, 1997. U.S. Bureau of Justice Statistics. Report to the Nation on Crime and Justice: The Data. United States: Bureau of Justice Statistics, 1983. U.S. Bureau of Justice Statistics. Violent Crime in the United States: A Briefing Book. United States Bureau of Justice Statistics. Washington, D.C.: U.S. Department of Justice, 1982. U.S. Department of Justice. Violent Crime in the United States: A Briefing Book. United States Bureau of Justice Statistics. Washington, D.C.: U.S. Department of Justice, 1982. U.S. Congress, House Subcommittee on Criminal Justice, Committee on the Judiciary, Anti-Gay Violence. undated. pp. 1-2. U.S. Department of Justice. Highlights from Twenty Years of Surveying Crime Victims in the National Crime Victimization Survey, 1973-1992. Washington, D.C., U.S. Dept. of Justice.

198

Office of Justice Programs, Bureau of Justice, 1993. Uhl, Gary Anthony. "Hate Crime: Prevalence and Impact in an Urban College Population." Dissertation Abstracts International. v57(05B):3455. USA. “A[Censorhip and hate crime in the US].” Index Censorhip. 27(3)(1998):127-128. United States of America Constitution. Civil Rights Act. United States, 1964. United States of America. Religious Vandalism Act. United States, 1988. United States of America. Hate Crime Statistics Act. U.S. Attorney General, 1990. United States of America. (draft). Hate Crimes Sentencing Enhancement Act. United States, 1990. United States of America.. Community Relations Service (CRS). U.S. Department of Justice, 1964. United States of America. United States Commission on Civil Rights. United States. United States Senate Committee on the Judiciary. Subcommittee on the Constitution. "The Hate Crimes Statistics Act: Hearing, June 28, 1994, on the implementation and progress of the Hate Crimes Statistics Act (Public Law 101-275), focusing on law enforcement participation in the National Hate Crime Data Collection Project, a component of the FBI's Uniform Crime Reporting Program.” Supt. Docs.. (SD cat. no. Y v.J 89/s:s.hrg.103-1078) (1996). United States. Federal Bureau of Investigation. Association of State Uniform Crime Reporting Programs (U.S.) Northeastern University (Boston, Massachusetts). Center for Applied Social Research United States. Federal Bureau of Investigation. Criminal Justice Information Services Division. Hate Crime Statistics: A Resource Book. Prepared under the Hate Crime Statistics Act of 1990, for the Federal Bureau of Investigation by the Association of State Uniform Crime Reporting Programs and the Center for Applied Research, Northeastern University. Washington, D.C.: The Bureau, 1992. United Nations. United Nations Universal Declarations of Human Rights, G.A. Res. 217A, U.N. Doc. A/810, 71-77. (1948). United Nations. United Nations International Convention of the Elimination of All Forms of Racial Discrimination. (March 7, 1966, 660 U.N.T.S. 195. (1966). United Nations. Convention on the Elimination of All Forms of Discrimination against Women. U.N. G.A. Res. 34/180, UN Doc. A/34/46, 19 I.L.M. 33 (1980). (1980).Canada acceded to 10

199

January 1982. United Nations. Beijing Declaration B Platform for Action. U.N. A/Conf. 177/20, 17 October 1995, 35 I.L.M. 401 (1996). (17 October, 1995). United Nations. International Covenant on Civil and Political Rights. U.N. G.A. Res. 34/180, UN Doc. A/34/46, 19 I.L.M. 33 (1980), Articles 3, 25, 26. Canada acceded to 19 August 1966. (1980). United Nations. Declaration on the Elimination of Violence Against Women 1994. U.N. G.A. Res. 48/104, 23 February 1994, Articles 1, 2, 4(b)-(f), (h)-(I). (February 1994). United Kingdom. Race Relations Act 1976. [England, Scotland, Wales]. [online] www.austlii.edu.au/nz/cases/NZCA/2000/179.html (1976). United Kingdom. Public Order Act 1986. (Part III (ss.17-29). On the incitement of racial hatred.(1986). United Kingdom. Racial Attacks Group. (R.A.G.: an interdepartmental Working Party), 1987. United Kingdom. Commission for Racial Equality. U.K.: Race Relations Act 1976, 1976. United Kingdom Association of Chief of Police Officers (ACTO). 1985. Guiding Principles Concerning Racial Attacks. United Kingdom. United Kingdom Press Complaints Commission. Code of Practice. United Kingdom. United Kingdom Broadcasting Standards Council. Broadcasting Act. United Kingdom, 1990. United Nations. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. New York: U.N. Dept. of Public Information, 1985. Uhl, Gary Anthony. Hate Crime: Prevalence and Impact in an Urban College Population. Dissertation Abstracts International. 57(5-B) (November 1996): 3455. United States Department of Justice. National Task Force on Violence Against Health Care Providers. Washington, D.C.: Department of Justice. www.usdoj.gov:80/crt/crim/tfrepub.htm Van Dijk, Teun A. Discourse and Discrimination In: T.A. Van Dijk Elite Discourse and Racism. (1988). Valois, Martine. “Hate Propaganda, Section 2(b) and section 1 of the Charter: A Canadian

200

Constitutional Dilemma.” Revue Juridique Themis. 373 (1992). Valverde, Mariana. “Pornography.” Guberman, Connie and Margie Wolf eds. No Safe Place. Violence Against Women and Children. Toronto: Women’s Press, 1985. Vancouver Sun. April 13, 1993. “Vernon anti-abortionists target hospital; demonstrators vow doctors performing the procedure will be next.” Vancouver Sun. Vancouver Province. October 30, 1988. “Clashes lead to arrests (Operation Rescue Blockades).” Vancouver Sun. April 13, 1993. “Vernon anti-abortionists target hospital; demonstrators vow doctors performing the procedure will be next.” Vancouver Sun; Vancouver Sun (editorial). October 27, 1998. “Abortion doctors an abhorrent tactic.” Vancouver Sun. Wawrow, John. “Murderous Missive Chills Choicers.” Province, January 14, 1998.. Vancouver Sun (editorial). “Restrain abortion foes.” Vancouver Sun. November 14, 1998. Vasquez, M. J. T. and De Las Fuentes, C. “Hate Speech or Freedom of Expression? Balancing Autonomy and Feminist Ethics in a Pluralistic Society.” In: M. M. Brabeck (ed.). Practicing Feminist Ethics in Psychology. Psychology of Women Book Series. Washington, DC, US: American Psychological Association. Vetterling-Braggin, Mary, (ed.). Sexist Language: A Modern Philosophical Analysis. Littlefield, Adams and Co, 1981. Vicini, James. “U.S. Names suspect in abortion anthrax hoaxes.” Reuters, November 29, 2001. Waldinger, R.J. Psychiatry for Medical Students. Washington, D.C.: American Psychiatric Press, Inc., 1992. Wallace, Bruce. “Dutch senators pass mercy-killing Bill: A long standing practice.” National Post (April 11, 2001): A12. Waska, R. T. “Hate, dislike, and disinterest.” Journal of Melanie Klein & Object Relations. 16(2). (June, 1998): 389-405. Waxman, B.F. “Hatred: The unacknowledged dimension in violence against disabled people. Special Issue: Sexual Exploitation of People with Disabilities.” Sexuality and Disability. 9(3):185-

201

199 (Fall 1991). Weber, M. The Tragedy of Canada’s Runaways. 1991. Weeber, Joy E. “What could I know of racism?” Journal of Counseling and Development. Special Issue: Racism: Healing Effects. 77(1) (Winter 1999): 21-23. Weinrib, Lorraine E. “Hate Propaganda in a Free and Democratic Society: R. v. Keegstra.” McGill Law Journal. 36:1416 (1991). Weinribb, L.E. “Does Money Talk? Commercial Expression in the Canadian Constitutional Context.” In: D. Schneiderman (ed.). Freedom of Expression and the Charter. Toronto: Thomson Publishing. Wastell, David. June 10, 2002. “New anti-abortion tactic a ‘threat’ to women. Web site publishes photos of women seeking abortions.” The Financial Post. A14. t Western Report. “The wrong motive to have: A murderer draws 30 additional months for his apparent racism.” Western Report. 11(35): (September 23, 1996). Whillock, R. K. and Slayden, D. (eds.). Hate Speech. Thousand Oaks, CA, US: Sage Publications, 1995. Whine, Michael. The Far Right on the Internet. The Governance of Cyberspace: Politics, Technology and Global Restructuring. London: Routledge, 209-227. (1997). Williams, Patricia. “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights.” Harvard Civil Rights -- Civil Law Review. 22 (1987). Williams, Patricia. “Spirit Murdering the Messengers: The Discourse of Finger-Pointing as Laws Response to Racism.” Miami Law Review 42 (1987). Williams, Lindsey, Nind, Melanie. “Insiders and Outsiders: Normalisation and women with learning difficulties.” Disability and Society: Special Issue: Theory and Experience. 14(5) (September 1999): 659-672. Wilnier, Julie A. “Womens attitudes toward sexually explicit materials: Positive experiences.” Dissertation Abstracts International. Section: Humanities and Social Sciences. 59(10-A) (May 1999): 3988.

202

Winborne, W. & Cohen, R. “Hating those different from ourselves: The origins of racial, ethnic, and religious hatred.” Gullotta, T. P., McElhaney, S. J. (ed.). Violence in Homes and Communities: Prevention, Intervention, and Treatment. Issues in Children’s and Families Lives. Volume 11. Thousand Oaks, CA, US: Sage Publications, 1999. Winkel, Frans Willem. “Hate crime and anti-racism campaigning: Testing the approach of portraying stereotypical information-processing.” Issues in Criminological & Legal Psychology. 29 (1997):14-19. Wintemute, Robert. Sexual Orientation and Human Rights. The United States Constitution, The European Convention, and the Canadian Charter. Oxford: Clarendon Press, 1995. Wintemute, Robert. "The Canadian Charter of Rights and Freedoms: Sexual Orientation under Section 15(1).” Sexual Orientation and Human Rights. The United States Constitution, The European Convention, and the Canadian Charter. Oxford: Clarendon Press. 150-173, 1995. Wintemute, Robert. "The Canadian Charter of Rights and Freedoms: Is Sexual Orientation an Immutable Status or a Fundamental Choice?” Sexual Orientation and Human Rights. The United States Constitution, The European Convention, and the Canadian Charter. Oxford: Clarendon Press. 174-197, 1995. Wintemute, Robert. "The Canadian Charter of Rights and Freedoms: Is Sexual Orientation Discrimination Sex Discrimination?” Sexual Orientation and Human Rights. The United States Constitution, The European Convention, and the Canadian Charter. Oxford: Clarendon Press, 198-228, 1995. Withorn, Ann. “Why do they hate me so much? A history of Welfare and its abandonment in the United States.” American Journal of Orthopsychiatry. 66(4) (October 1999): 496-509. Wong, Jan. “What parent can stand a child in unremitting agony?” The Globe and Mail. (January 17, 2001): A4. Wood, Chris. “Gunning down a doctor.” MacLean”s Magazine. November 21, 1994. Xtra! “Hate Ad is OK.” Xtra! Magazine. (April 20, 2000): 25. Yanay, Niza. “The meaning of hatred as narrative: Two versions of an experience.” Journal of Narrative and Life History. 5(4) (1995): 353-368. Zickmund, Susan. “Approaching the radical other: The discursive culture of cyberhate.” In: S.G. Jones ed. Virtual Culture: Identity and Communication in Cyberspace. Thousand Oaks, CA,

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US: Sage Publications, 1997.

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COMBATTING HATE ON THE INTERNET RESOURCES: http://www.unhchr.ch/html/racism/home.htm http://www.hri.ca/racism/Submitted/Author/ipperwash.htm http://www.racism.org.za/ http://www.multiculturalism.pch.gc.ca http://www.recomnetwork.org/ http://www.antiracist.com/ (Canadian Antiracist Education Research Society) http://www.bnaibrith.ca/nfindex.htm (B’nai Brith) http://www.media-awareness.ca/ (Media Awareness Network Challening Online Hate) http://www.nizkor.org/ (NizKor Project (Ken McVay)) http://www.hatedirectory.com (The Hate Directory (Raymond A. Franklin)) http://www.adl.org/ (Anti-Defamation league (ADL)) http://www.communinet.org/News_Journal/klanindex.html (Anti-Klan Home Page) http://www.aranet.org (Anti-Racist Action) http://www.pi.net/~enclos/eng_care.html (Computerusers Against Racist Expression (C.A.R.E). http://www.wiesenthal.com/watch/index.html (Cyberwatch) http://www.evnetwork.org/ (Education and Vigilance Network) http://www.hatecheck.org (HateCheck International) http://www.hatewatch.org/index.html (Hate Watch) http://www.hatewatch.co.uk/ http://www.holocaust-history.org (Holocaust History Project) http://www.sunflower.org/~mking/webboard/index.html (Internet Racism Discussion Board) http://www.media-awareness.ca/eng/issues/internet/hintro.htm (Media Awareness Network Challenging Online Hate) http://www.edc.org/HHD/hatecrime/id1.htm (National Center for Hate Crime Prevention, U.S.) http://www.wiesenthal.com/ (Simon Wiesenthal Center) http://www.splcenter.org (Southern Poverty Law Center Klanwatch) http://www.stopthehate.net (Stop the Hate) http://www.geocites.com/Athens/Cyprus/8815/ (The Talmud Exposed) http://www.unitedagainsthate.org (United Against Hate, U.S.) http://yvs.shani.net (Yad Vashem)

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APPENDIX I CASES Hate Propaganda and Hate Crime Cases (Canada) Attis v. Board of Education District 15 (1991), 121 N.B.R. (2d) 1-90B (N.B. Human Rights Board of Inquiry). Attis v. Board of Education District 15 (1991), 121 N.B.R. (2d) 261-379 (N.B.Q.B.). Attis v. New Brunswick School District No. 15 (1991), 15 C.H.R.R. D/339-D/362 (N.B. Human Rights Board of Inquiry). Bhaduaria v. Board of Governors of Seneca College, [1981] 2 S.C.R. 181-195 (S.C.C). Boucher v. The King (1949 & 1950), [1951] S.C.R. 265-3345 (S.C.C.). Boucher v. The King (1949), [1950] 1 D.L.R. 657-694 (S.C.C). Boucher v. The King (1950), [1951] 2 D.L.R. 369-422 (S.C.C.). Ex parte Genest v. R. (1933), 71 R.J.Q. 385-393 (Que. S.C.) Canada (Human Rights Commission) v. Canadian Liberty Net (C.A.), (1996-01-25) FC A-33992.http://www.canlii.org/ca/cas/fc/1996/1996fc5.html Canada (Human Rights Commission) v. Heritage Front (T.D.), [1994] 1 F.C. 203. http://www.canlii.org/ca/cas/fc/1993/1993fc84.html Dickason v. University of Alberta, [1992] 2 S.C.R. 1103. http://www.canlii.org/ca/cas/scc/1992/1992scc82.html Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. http://www.canlii.org/ca/cas/scc/1994/1994scc102.html Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. http://www.canlii.org/ca/scc/1995/1995scc67.html McAleer v. Canada (Human Rights Commission) (T.D.), [1996] 2 F.C. 345 http://www.canlii.org/ca/cas/fe/996/1996fc8.html

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Muzychkac. Minister of Citizenship and Immigration, (1997-03-07) CFIMM-1113-96. http://www.canlii.org/ca/jug/cf/1997/1997cf20262.html R. v. Andrews, [1990] 3 S.C.R. 870. http://www.canlii.org/ca/cas/SCC/1990/1990scc129.html R. v. Andrews (1988), 43 C.C.C. (3d) 193-228 (Ont. C.A.). R. v. Andrews (1990), 1 C.R. (4th) 266-284 (S.C.C). R. v. Andrews (1990), 61 C.C.C. (3d) 490-505 (S.C.C.). R. v. Atkinson, Ing and Roberts (1978), 43 C.C.C. 342-345 (Ont. C.A.). R.. v. Burdi, 1977 98 O.A.C. 1-3 (Ont. C.A.). R. v. Butler, [1992] 1 S.C.R. 452 http://www.canlii.org/ca/cas/scc/1992/1992scc15.html R. v. Buzzanga and Durocher (1979), 101 D.L.R. (3d) 488-509 (Ont. C.A.). R. v. Buzzanga and Durocher (1979), 49 C.C.C. ((2d)) 369-390 (Ont. C.A.). R. v. Claude Joseph Robinson, Appeal No. 9603-0483 Sentencing Judgement, Sentence Appeal Book filed on November 26, 1996 (Alta. C.Q.B.). R. v. Curtis Peters, 1993 (September 23) Proceedings at Plea (Ont. C. Prov. Div). R. v. Fliss, 2000bcca0347 http://www/canlii.org/bc/cas/bcca/2000/2000bcca347.html R. v. Ingram and Grimsdale (1977), 35 C.C.C. (2d) 376-380 (Ont. C.A.). R. v. Keegstra (1984), 19 C.C.C. (3d) 254-283 (Alta. Q.B). R. v. Keegstra (1988), 60 Alta. L.R. (2d) 1-31 (Alta. C.A.). R. v. Keegstra, [1990] 3 S.C.R. 697-869 (S.C.C). http://www.canlii.org/ca/cas/scc/1990/1990scc128.html R. v. Keegstra (1990), 61 C.C.C. (3dd) 1-127 (S.C.C.).

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R. v. Keegstra (1994), 23 Alta. L.R. (3d) 4-62 (Alta. C.A). R. v. Keegstra, [1995] 2 S.C.R. 381 http://www.canlii.org/ca/cas/scc/1995/1995scc42.html R. v. Keegstra 1996 (September 26), # 13544 - Memorandum of Judgement (Alta.C.A.). R. v. Keegstra, [1996] 1. S.C.R. 458-461 (S.C.C). R. v. Keegstra (1996), 105 C.C.C. (3d) 19-21 (S.C.C). R.. v. Keegstra (1990), 41 O.A.C.73-78 (Ont. C.A.). R. v. Lelas (1990), 41 O.A.C. 73-78 (Ont. C.A.). R. v. Lelas (1990), 58 C.C.C. (3d) 568-576 (Ont. C.A.). R. v. Lucas, [1095] 1. S.C.R. 439. http://www.canlii.org/ca/cas/scc/1998/1998scc29.html R. v. Safadi (1993), 108 Nfld. & P.E.I.R. and 339 A.P.R. 66-83 (P.E.I. S.C. Tri. Div.). R. v. Safadi (1994), 121 Nfld. & P.E.I.R. and 377 A.P.R. 260-262 (P.E.I. S.C. App. Div.). R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577. http://www.canlii.org/ca/cas/scc/1991/1991scc68.html R. v. Sharpe, (2001-01-26) SCC. http://www.canlii.org/ca/cas/scc/2001/2001scc2.html R. v. Simms (1990), 60 C.C.C. (3rd) 499-509. (Alta. C.A.). R. v. Simms and Swanson (1990), 114 A.R. 19-27 (Alta. C.A.). R. v. Zundel (1990), 37 O.A.C. 354-393 (Ont. C.A.). R. v. Zundel (1990), 53 C.C.C. 161-209 (Ont. C. A.). R. v. Zundel, [1992] 2 S.C.R 731-844 (S.C.C.). http://www.canlii.org/ca/cas/scc/1992/1992scc72.html

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The King v. Osborn (1732), 2 Barn. K.B. 166, 94 E.R. 425. The King v. Osborn (1732), W. Kel. 230-231, 25 E.R. 584-585. The King v. Osborn (1732), 2 Sawns, 532, 36 E.R. 717. RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199. http://www.canlii.org/ca/cas/scc/1995/1995scc72.html Ross v. New Brunswick School District No. 15 [1996] 1 S.C.R. 825 http://www.canlii.org/ca/cas/scc/1996/1996scc35.html Thomson Newspapers co. v. Canada (Attorney General), [1998] 1 S.C.R. 877. http://www.canlii.org/ca/cas/scc/1998/1998scc43.html Zundel v. Canada (Attorney General) (T.D.), [1999] 4 F.C. 289 http://www.canlii.org/ca/fe/1999/1999fe24722.html

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APPENDIX II HATE CRIME STATUTES AND BILLS Canada, An Act respecting Libel, R.S.C. 1886, c. 163. Canada, An Act respecting the Crime of Libel, S.C. 1874, c. 38. Canada, Bill C-3: An Act to amend the Criminal Code, R.S.C. (1st Supp.), c. 11, amending R.S.C. 1970, c. C-34. Canada, Bill C-41: An Act to amend the Criminal Code, (sentencing) and other Acts in consequence thereof, as passed by the House of Commons on June 15, 1995, House of Commons. Canada, Bill C-445: An Act to provide for the collection of statistics respecting incidents investigated by police forces where those incidents manifest evidence of bias against certain identifiable groups, First reading, June 8, 1993, House of Commons. Canada, Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), R.S.C. 1985, Appendix II, No. 44. Canada, Canadian Human Rights Act, R.S.C. 1985, c. H-6. Canada, Constitution Act, 1982, R.S.C. 1985, Appendix II, No. 44. Canada, Criminal Code, 1892, S.C. 1892, c. 29. Canada, Criminal Code, R.S.C. 1985, c. C-46. New Brunswick, Human Rights Act, S.N.B. 1990, c. 30. U.K., De Libellis Famosis (1606), 77 E.R. 250 (Star Chamber). U.K., De Scandalis Magnatum, 1275, 3 Edw. 1, c. 34 (U.K.). U.K., The Libel Act, 1792, 32 Geo. III, c. 60 (U.K). U.K., The Libel Act, 1843, 6 & 7 Vict., c.96 (U.K.). United Nations, Convention on the Prevention and Punishment of the Crime of Genocide, 1948, 78 U.N.T.S. 278.

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Canada, Criminal Code Canada. Sec 320. Statutes and Regulations. Consolidated Statutes of Canada. Criminal Code, [R.S. 1985, c. C-46].

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APPENDIX III HUMAN RIGHTS CONVENTIONS Universal Declaration of Human Rights, GA Res. 217(III), UN GAOR, 3d Sess., Supp. No 13, UN Doc. A/810 (1948 71 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23 March 1976, accession by Canada 19 May 1976). International Convention on the Elimination of All Forms of Racial Discrimination, GA Res. 2106 (XX), UN GAOR, 21 December 1965, 660 U.N.T.S. 195. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277, Can. T.S. 1949 No. 27 (Entered into force 12 January 1951). Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221, EUR. T.S. 5 (entered into force 3 September 1953). Banjul Charter on Human and People’s Rights, O.A.U. Doc. CAB/LEG67/3/Rev.5, 21 I.L.M. 58 (1981). American Convention on Human Rights: Pact of San Jose, Costa Rica, 22 November 1969, 1144 U.N.T.S. 123, O.A.S.T.S. 36, 9 I.L.M. 673. Conference on Security and Co-operation in Europe: Final Act, 1 August 1975, 14 I.L.M. 1292. Charter of the United Nations, 26 June 1945, Can T.S. 1945 No. 7, 59 Stat. 1031, art.1(3).

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APPENDIX IV CONTACTS Canadian Association of Sexual Assault Centres (CASAC) Ms. Lee Lakeman Canadian Research Institute for the Advancement of Women (CRIAW) lmartincriaw-icref.ca Contact: Jill Riddington Canadian Council of Muslim Women Suite 513 2400 Dundas St. West Mississauga, Ontario L5K 2R8 email: jaff1telusplanet.net Canadian Coalition for the Rights of Children 384 Bank Street, Suite 300 Ottawa, Ontario K2P 1Y4 (613) 230-8838 extension 228 Email: kdilworthcich.ca www.rightsofchildren.ca www.droitsdesenfants.ca Canadian Anti-Racism Education and Research Society Mr. Alan Dutton Executive Director Canadian Youth Rights Association Contact: Joshua Gilbert, President 27 Bainbridge Avenue Nepean, Ontario K2G 3T1 Canada (613) 721-1004 President: Joshua Gilbert Childcare Advocacy Association of Canada (CCAAC)

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323 Chapel Street Ottawa, Ontario K1N 7Z2 ccaacistar.ca Wendy Atkin, CCAAC Coordinator Coalition for Lesbian and Gay Rights Ontario CLGRO contact: Ms. Christine Donald Toronto, Ontario Canadian HIV/AIDS Legal Network Project Director: Ralf Jurgens C.P. Les Atriums P.O. Box 32018 Montreal, Quebec H2L 4Y5 Email: infoaidslaw.ca Website: http://www.aidslaw.ca Council of Canadians with Disabilities 926-294 Portage Avenue Winnipeg, Manitoba R3C 0B9 Email: ccdpcs.mb.ca Website: http://www.pcs.mb.ca/~ccd/ National Director: Ms. Laurie Beachell December 9th Coalition Barbara Findlay Lawyer bfindlayimag.net Dis-Abled Womens Network Canada dawncacanada.com Disability Research Tanis Doe, Researcher tanishome.com Cameron Crawford, researcher Roeher Institute cameronroeher.ca

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Education Wife Assault (EWA) ewainterlog.com www.womanabuseprevention.com Equality for Gays and Lesbians Everywhere Mr. John Fisher Executive Director johnegale.ca Federation du Femmes du Quebec www.ffq.qc.ca LaMarsh Research Programme on Violence and Conflict Resolution York University North York, Ontario Contact: Dr. James Check & Dr. Charlene Senn Le Reseau des lesbiennes du Quebec rlq.qlnqc.aira.com Legal Education and Action Fund (LEAF) Ms. Nancy Radclyffe Executive Director exdirleaf.ca Metropolitan Action Committee on Violence Against Women and Children. (METRAC) Ms. Pamela Cross Legal Director pcrossweb.ca Media Watch 517 Wellington Street Suite 204 Toronto, Ontario Canada M5V 1G1 Tel: (416) 408-2065 Fax: (416) 408-2069 Email: infomediawatch.ca National Action Committee on the Status of Women (NAC)

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Ms. Laura Cabarrocas nacweb.ca National Association of Women and the Law (NAWL) Ms. Bonnie Diamond Executive Director bonnienawl.ca Contact: Jill Ridington National Clearinghouse on Family Violence 1-800-267-1291 (613) 957-2938 National Organization of Immigrant and Visible Minority Women of Canada (NOIVMWC) noivmwccyberus.ca One Voice: The Canadian Seniors Network 1005-350 Sparks Street Ottawa, Ontario K1R 7S8 Email: onevoice: lavoixsympatico.ca National Secretary: Mr. Ivan Hale Ontario Association of Interval and Transition Houses (OAITH) Ms. Elaine Morrow Lobby Coordinator oaithweb.ca Ontarians with Disabilities Act Committee Contact Person: Marg Thomas 1929 Bayview Ave. Toronto, Ontario M4G 3E8 Email: thomaseast.cnib.ca Ottawa Police Services Contact: David Nurse Hate Bias Unit Policy Action Research List Par-L

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http://www.unb.ca/parl-L/tech1.htm Senior Link David Kelly, Policy and Advocacy Officer 2550 Danforth Avenue Toronto, Ontario M4C 1L2 www.inforamp.net/~senior UCCB Childrens Rights Centre University College of Cape Breton Dr. Katherine Covell Dr. R. Brian Howe (902) 563-1440 Womens Justice Network website: http://www.web/net~wjn/ wjnftn.net White Ribbon Campaign men Working to End Mens Violence Against Women whiteribidirect.com www.whiteribbon.ca 365 Bloor Street East Suite 203 Toronto, Ontario Canada M4W 3L4 (416) 920-6684 Individual Contacts: Dr. Charlene Senn, Department of Psychology, University of Windsor Dr. Jill Ridington, LaMarsh Research Programme on Violence and Conflict Resolution Dr. James Check, LaMarsh Research Programme on Violence and Conflict Resolution Professor Kathleen Mahoney, Faculty of Law, University of Calgary Professor Richard Moon, Faculty of Law, University of Windsor. Dr. Wesley Chrichlow, Department of Law, Carleton University Ms. Joyce Arthur, Pro-Choice Action Network, Canada Mr. Alan Dutton, Executive Director, Canadian Anti-Racism Education and Research Society. Dr. Karen Mock, Bnai Brith Canada, League for Human Rights. Mr. John Fisher, Equality for Gays and Lesbians Everywhere, EGALE.

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Ms. Christine Donald, Coalition for Lesbians and Gays Everywhere, CLGRO. Constable David Nurse, Ottawa Police Services. Mr. Ken McVay, Nizkor Project, British Columbia, Canada. Ms. Eileen Morrow, Ontario Association of Interval and Transition Houses, Toronto, Ontario. Alison Kemper, The 519 Church Street Community Centre, Toronto, Ontario. Dr. Thelma McCormick, Department of Sociology, York University. Mr. Manuel Prutschi, Canadian Jewish Congress, Toronto, Ontario

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APPENDIX V Ordinance Presented to the Minneapolis Hearings on Pornography (U.S.) (Catharine MacKinnon, 1995:254-264). 1. The status and treatment of women has certain regularities across time and space making gender a group experience. Historically women have been “used, abused, bought, sold, and silenced”. 2. Women”s lower socio-economic and political condition is imposed by covert and overt force, including violence, sexual harassment, and sexual assault, yet these facts are not acknowledged. 3. Pornography is central in actualizing the system of subordination in the contemporary West, beginning with its form of production. 4. An exploration of the “hundreds and hundreds of magazines and pictures and films and video cassettes and so-called books now available in outlets from adult stories to corner groceries across America” reveal a range of degrading manifestations of our culture”s most sexist views of women. 5. Researchers who document the harms of pornography found: “pornography increases attitudes and behaviours of aggression and other discrimination by men against women” (MacKinnon, 1995:255). This finding is consistent with the stories told by victims. 6. The Ordinance Hearings documented testimony about the devastating impact pornography had on the lives of victims. Therapists and psychologists who gave testimony provided a range of evidence of the harms of pornography, including the conclusion that “pornography makes men hostile and aggressive toward women and makes women silent” (MacKinnon, 1995:256). The testimony, taken as a whole, “revealed that the more pornography men see, the more abusive and violent they want it to be; the more abusive and violence it becomes, the more they enjoy it and the more aroused they get, the more abusive and violent they become, and the less harm they see in what they are seeing or doing. ... The evidence showed that use of pornography makes it impossible for them to tell when sex is forced, that women are human, and that rape is rape” (MacKinnon, 1995:256). MacKinnon concludes, “Pornography makes men hostile and aggressive toward women and makes women silent” (Mackinnon, 1995:256). 7. Pornography, through its production, is a traffic in female sexual slavery: “Through its consumption, pornography further institutionalizes a subhuman, victimized status for women by conditioning men”s orgasm to sex inequality ... In other words, pornography links sex with gender inequality by equating them” (MacKinnon, 1995:257).

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8. Pornography is both a concrete practice and an ideological statement: “The concrete practices are discriminatory; the ideological components are defamatory” (MacKinnon, 1995:257). 9. The conditions of the production of pornography are fundamentally different from those of traditional group defamation. While pornography and group defamation are both hateful, pornography “does not merely lead to abuse; it is abuse” (MacKinnon, 1995:258). While defamation is an idea, discrimination is always an act. Both are at play in pornography: “[p]ornography is propaganda, an expression of male ideology, a hate literature, an argument for sexual fascism.” (MacKinnon, 1995:259). The stereotypes pornography represents of women are largely false, however, the stereotypes have been imposed on the group, successfully forcing the world to correspond to a defamatory image (MacKinnon, 1995:259). 10. Group defamation keeps women subordinated, and in the larger picture, promotes genocide toward women as a sex through the promotion of terror, intolerance, segregation, exclusion, vilification, degradation, violence, and genocide.

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APPENDIX VI Hate-Motivated Activity – Terms of Reference Researching Evidence of Hate Propaganda: A Conceptual Report Department of Justice Research and Statistics Division Contractor: Background Since the mid-1960s the federal government, in consultation with several community-based and non-governmental organisations, has struggled to combat hate propaganda and racist group activities. Section 318 and 319 of the Criminal Code make it an offence to advocate genocide or incite hatred in public against any identifiable group, distinguished by colour, race, religion or ethnic origin. Hate motivated activities represent a serious criminal law and policy issue for the Department of Justice Canada. In addition to its deleterious impact upon individual victims, hate-motivated activities undermine the social goal of promoting a just, fair and equitable society – hate crimes undermine attempts to promote diversity and social cohesion. Issue Confronting hate propaganda is a primary example of limiting freedom of expression rights. “It is a limit that is not only tolerated or permitted, but one that is considered necessary to the proper functioning of Canadian society and to its very definition of a democratic society” (Major, 1996:221). However, providing recourse against hate propaganda to all Canadians would represent to great of an infringement on free expression. Currently, sections 318 and 319 of the Criminal Code provide protection to identifiable groups distinguished by colour, race, religion or ethnic origin. Arguments have been advanced that encourage an expanded definition of identifiable group that is consistent with section 15 of the Charter (equal rights on the basis of colour, race, national or ethnic origin, religion, sex, age, or mental or physical disability). Report Objectives

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The purpose of this research is to provide a conceptual “think-piece” that explores evidence of materials that would constitute hate propaganda under sections 318 and 319 of the Criminal Code, against groups not presently covered by the definition of identifiable group. In particular, evidence of hate propaganda targeting individuals on the basis of colour, national or ethnic or national origin, religion, sex, age, mental or physical disability, or sexual orientation (referred to as expanded groups). The goals of the research are twofold: ·

Explore the conceptual and methodological grounds for conducting research of materials that would constitute hate propaganda against the aforementioned expanded groups (In other words, is it possible to conduct research in this area? If so, how?).

·

Determine if there is reasonable primae facie evidence of hate propaganda against the aforementioned expanded groups.

Tasks The contractor will prepare a paper (30-50 pages in length) that reviews and analyses the legal and multidisciplinary literature and case law to identify relevant issues and themes. The contractor will examine measures for exploring the extent and nature of hate propaganda against the expanded groups, make recommendations with respect to appropriate methodology and information sources, and discuss the feasibility and next steps in a process of researching evidence of hate propaganda against the expanded groups. · · · · · · · ·

·

Determine if there is a sound conceptual basis for conducting empirical research on hate propaganda against groups not currently protected by the Criminal Code. Review the extant research on hate propaganda, including definitions and measures employed in previous research, methodological issues, and results and recommendations. Detail the strengths and limitations of previous research on hate propaganda (e.g. operational definitions and conceptual frameworks). Provide methodological advice with respect to the proposed research agenda on hate propaganda against the expanded groups. Complete a methodology section detaining how the information for the report was collected. Consideration of the issues should be rooted in case law and existing legislative regime. Explore approaches/policy decisions in other jurisdictions. How is hate propaganda addressed in other jurisdictions and what constitutes an “identifiable group”? Review alternatives/limitations to criminal sanctions (e.g. limitations of legal responses to hate propaganda, arguments in favour of and against hate propaganda laws, punishing expression versus punishing expression linked to criminal conduct, and the need for education, social policy and human rights). The report is to be prepared in English, include an executive summary, and be completed

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in a format that is accessible by Microsoft Word 97.

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Notes

1. The “Statement of Work” for this contract outlines the following objectives: 1) Determine if there is a sound conceptual basis for conducting empirical research on hate propaganda against groups not currently protected by the Criminal Code; 2) Review the extant research on hate propaganda, including definitions and measures employed in previous research, methodological issues, and results and recommendations; 3) Detail the strengths and limitations of previous research on hate propaganda (e.g. operational definitions and conceptual frameworks; 4) Provide methodological advice with respect to the proposed research agenda on hate propaganda against the expanded groups; 4) Complete a methodology section detailing how the information for the report was collected; 5) Consideration of the issues should be rooted in case law and existing legislative regime; 6) Explore approaches/policy decisions in other jurisdictions. How is hate propaganda addressed in other jurisdictions and what constitutes an “identifiable group”?; 7) Review alternatives/limitations to criminal sanctions (e.g. limitations of legal responses to hate propaganda, arguments in favour of and against hate propaganda laws, punishing expression versus punishing expression linked to criminal conduct, and the need for education, social policy and human rights. 2. This is how these principles are jeopardized:The message of the expressive activity covered by s. 319(2) is that members of identifiable groups are not to be given equal standing in society, and are not human beings equally deserving of concern, respect and consideration (Keegstra, 44). In that sense, the objective of s. 319(2) is also bolstered by s. 15 of the Charter, which expresses “society’s dedication to promoting equality” (at 43). 3. R. v. Butler. 1989. 60 Manitoba Reports (2d) 82 (Manitoba Queen’s Bench); (1990) 73 Manitoba Reports (2d) 197 (Court of Appeal); (1992) 78 Manitoba Reports (2) 1 (Supreme Court of Canada); retrial (March 31, 1993) 88-01-04647 (Manitoba Queen’s Bench). 4. In R. v. Keegstra (1990), 61 C.C.C. (3d) 1, [1990] 3 S.C.R. 697, 1 C.R. (4th) 129 the Supreme Court unanimously accepted that the prevention of the influence of hate propaganda on society at large was a legitimate objective. “Regina v. Butler.” (Supreme Court of Canada) (February 27, 1992) 70 C.C.C. (3d), pp 133, 141-169. Simon Verdun-Jones. Canadian Criminal Cases: Selected Highlights. Toronto: Harcourt Brace & Co. Canada, 22. 5. Irwin Toy v. Quebec (Attorney-General) (1989), 58 D.L.R. (4th) 577, 25 C.P.R. (3d) 417, [1989] 1 S.C.R. 927. 6. A person accused of promoting hatred under s. 319(2) has recourse to the defences set out in s. 319(3), which reads as follows: “(3) No person shall be convicted of an offence under subsection (2)

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(a)If he establishes that the statements communicated were true; (b) If, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject; (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; (d) If, in good faith, he intended to point out, for the purposes of removal, matters producing or tending to produce feelings of hatred toward an identifiable group.” 7. Bill C-431, An Act to amend the Criminal Code (hate propaganda), 3d Sess., 34th Parl., 199 (1st reading 5 May 1993). 8

Subsection 13(2) of the Canadian Human Rights Act is replaced by the following: (2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of facilities of a broadcasting undertaking. (Bill C-36, As passed by the House of Commons, 2001). 9

340.1(1) If a judge is satisfied by information on oach that there are reasonable grounds for believing that there is material that is hate propaganda within the meaning of subsection 320(8) or data within the meaning of subsection 342.1(2) that makes hate propaganda available, that is stored on and made available to the public through a computer system within the meaning of subsection 342.1(2) that is within the jurisdiction of the court, the judge may order the custodian of the computer system to (a) give an electronic copy of the material to the court; (b) ensure that material is no longer stored on and made available through the computer system; and (c) provide the information necessary to identify and locate the person who posted the material. Bill C-36 (As Passed by the House of Commons, 2001). 10. R. v. Keegstra, [1990] 3 S.C.R. 697, 117 N.R. 1. Keegstra was part of a trilogy of hate propaganda cases, with R. v. Andrews, [1990] 3 S.C.R. 870, 77 D.L.R. (4th) 128, and Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, 117 N.R. 191. Keegstra was affirmed in R. v. Keegstra, [1996] 1 S.C.R. 458, 197 N.R. 26. See also J.R.T. and W.G.P. v. Canada (No. 104/1981), printed in Report of the Human Rights Committee, UN GAOR, 38th Sess., Supp. No. 40, UN Doc. A/38/0, Annex XXIV (1983) 231, 4 H.R.L.J. 193. As cited in Cohen, 2000, at n. 44, page 78. 11. A number of Web sites (Farber, 1997; Franklin, 2001; Anti-Defamation League, 1999; Stern, 1999; De Santis, 1998) and articles (Whine, 1997) provided valuable background information on the extant internet hate propaganda. 12. Bill C-41: An Act to amend the Criminal Code (sentencing) and other Acts in consequence

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thereof, as passed by the House of Commons on June 15, 1995, and given Royal Assent on July 15, 1995. By Order in Council P.C. 1996-1271 (August 7, 1996), other than subsection 718.3(5) and sections 747 to 747.8 of these provisions came into force as of September 3, 1996. 13. The Cohen Committee, comprised of Chairman, Maxwell Cohen, S.A. Corry, Gerard Dion, Saul Hayes, Mark R. MacGuigan, Shane McKay, and Pierre E. Trudeau (1966). 14. The Supreme Court of Canada in R. v. Keegstra, [1990] 3 S.C.R. at 746 in reversing the decision rendered by the Alberta Court of Appeal (1988) which held that sections 319(2) and 319(3) (a) the Criminal Code violated both the right to freedom of expression as guaranteed in section 2(b) and the presumption of innocence as guaranteed in section 11(d) of the Canadian Charter of Rights and Freedoms. 15. For the full content of the handout, see R. v. Buzzanga and Durocher (1979), 101 D.L.R. (3d) 488-509 (Ont. C.A.) At 494; R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369-390 (Ont. C.A.) At 375. 16. R. v. Buzzanga and Durocher (1979), 101 D.L.R. (3d) 488-509 (Ont. C.A.); R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369-390 (Ont. C.A.); Law Reform Commission of Canada, 1986, Hate Propaganda (Working Paper 50), Ottawa at 10. 17. R. v. Ingram and Grimsdale (1977), 35 C.C.C. (2e) 376-380 (Ont. C.A.); R. v. Lelas (1990), 41 O.A.C. 73-78; R. v. Lelas (1990), 58 C.C.C. (3d) 568-576 (Ont. C.A.); R. v. Simms (1990), 66 C.C.C. (3rd) 499-509 (Alta. C.A.); R. v. Simms and Swanson (1990), 114 A.R. 19-27 (Alta. C.A.); R. v. Curtis Peters, Unreported, September 23rd, 1993 (Ont. C. Prov. Div.); R. v. Atkinson, Ing and Roberts (1978), 43 C.C.C. (2d) 342-345 (Ont. C.A.). 18. Chapter Two, “Condition of Law in Canada,” was removed at the request of the contractor and is available from the author. 19. Van Zijl v. Goeree. (1990) RvdW Nr.41 (HR Neth) [hereinafter Goeree]. 20. Cohen outlines other reasons why the decision might not apply in the Canadian context: AThe Charter restricts its own application to “the Parliament and government of Canada ... and ... of each province,’effectively leaving Canadians with non-constitutional remedies for discrimination by private actors. Moreover, Canadian courts have all but foreclosed civil remedies for group libel and the tort of discrimination. As discussed above, a cause of action in libel requires that an individual have been personally targetted, and no cause of action in discrimination exists at all. Finally, even if the Charter did apply to private actors in Canada, the tension between rights and responsibilities B and in this case, between the right to free speech and the responsibility to treat people equally B is entrenched in the Dutch Constitution refers to

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“each person’s responsibility before the law,’ thus according less status to freedom of expression than that of a “fundamental freedom’. In sum, it would appear that Canadian law is not structured in a way that would accomodate the Hoge Raad’s reasoning.” Cohen, Jonathan. 2000, Ibid. at 89. 21. The Charter, s. 15(1), sets out equality rights as follows: 15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 22. Cohen, Jonathan. 2000. AMore Censorship or Less Discrimination? Sexual Orientation Hate Propaganda in Multiple Perspectives. McGill Law Journal. 46(69): 90. 23. Goldstein, A.S. 1993. AGroup Libel and Criminal Law: Walking on the “Slippery Slope.’” Israel Year Book of Human Rights. 22:95; Bessner, Ronda. 1987. AThe Constitutionality of the Group Libel Offences in the Canadian Criminal Code.” Manitoba Law Journal. 17:183; Dubick, Keith. 1990. AFreedom to Hate: Do the Criminal Code Proscriptions Against Hate Propaganda Infringe the Charter?” Saskatchewan Law Review. 54:149; Elman, Bruce. 1989. APromotion of hate and the Charter.” Canadian Public Policy. 15:71-83. 24. The federal Hate Crimes Statistics Act, 28 U.S.C. 534, (1966), calls for states and localities to voluntarily report all hate crimes to the FBI, which in turn compiles these statistics into an annual report. Furthermore, 28 U.S.C. 994 (1984) provides for tougher sentencing when it is proven beyond a doubt that a crime committed was a hate crime. The latter provides limited protection to sexual minorities, however, because federal law enforcement agencies do not have jurisdiction over anti-gay hate crimes, does not cover hate violence based on sexual orientatation, gender, or disability. The Hate Crimes Prevention Act of 1999, H.R. 1082, S. 622, 106th Cong. (1999), which would expand this provision to include serious, violent hate crimes against members of sexual minorities, did not pass before the dissolution of parliament. Cohen, Jonathan. 2000, note 120, at 90. 25. U.S. 250 (1952), upholding the constitutionality of a group libel ordinance. 26. Strossen, N. 1992. “Balancing the Rights to Freedom of Expression and Equality: A Civil Liberties Approach to Hate Speech on Campus.” In, Coliver S. Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination. London: Article 19. 27. R.A.V. v. City of St. Paul, Minnesota, 112 S. CT. 2538 (1992). 28. As reported by Justice Scalia in R.A.V. v. City of St. Paul, Minnesota, 112 S. CT. 2538 (1992) AIn the pre-dawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely-made cross by taping together broken chair legs. They then allegedly burned

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the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been punished under any of a number of laws, one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn. Legis. Code 292.01 (1990). Freedman, M.H. et al. 1995, at 221. 29. Nationalist Socialist Party v. Skokie, 432 U.S. 43 (1977); Colin v. Smith578 F.2d 1197 (7th Cir. 1970), cert. denied, 439 U.S. 915 (1978); Village of Skokie v. National Socialist Party of America, 69 I11, 2d 605, 373 N.E. 2d 21 (1978). See generally, Note, A Communitarian Defense of Group Libel Laws, 101 Harvard Law Review. 682 (1988). 30. DeGiere, Gregory. May 2001. Crimes Against Reproductive Rights in California. Senate Office of Research, California Department of Justice. http://www.sen.ca.gov/sor/Reprocrimes.htm 31. Title 18 U.S. Code Section 248, www.usdoj.gov/crt/crim/248fin.htm 32a). a first nonviolent violation is punishable by up to six months in federal prison and a fine of up to $10,000. A first violent offense is punishable by up to a year in prison and a fine of up to $100,000. b) A second nonviolent offense is punishable by up to 18 months in prison and a $25,000 fine. A second violent offense is punishable by up to three years in prison and a $250,000 fine. c) If bodily injury results, the criminal can be sentenced to up to 10 years in prison, and if death results, life in prison. 33a). Orders can be sought from federal courts to enjoin, or stop, violations. (Federal courts can, but rarely do, make injunctions enforceable by state and local police). Plaintiffs may elect for damages of $5,000 per violation in lieu of seeking actual damages. a) Punitive damages also can be awarded. b) Attorneys’ fees, expert witness fees, and legal costs in cases brought by private plaintiffs can be recovered from the losing party. c) Civil damages of up to $10,000 can be imposed for a nonviolent first violation, $15,000 for violent first violations, $15,000 for second nonviolent violations, and $25,000 for violent second violations in cases brought by federal prosecutors or state attorneys general. 34. National Task Force on Violence Against Health Care Providers, U.S. Department of Justice Washington, D.C., www.usdoj.gov:80/crt/crim/tfreppub.htmNational Task Force on Violence Against Health Care Providers, U.S. Department of Justice Washington, D.C., www.usdoj.gov:80/crt/crim/faceweb.htm 35. The Public Order Act 1986, s. 18. 36(a)Shall declare an offense punishable by law all dissemination of ideas based on racial

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superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b)Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offense punishable by law; (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination (International Convention on the Elimination of All Forms of Racial Discrimination, 1966:195). 37 See U.N. Charter Article 55(c); Universal Declaration of Human Rights, G.A.Res. 217A (III), U.N. Doc. A/810, at 71 (1948). 38. Council of Europe, European Convention on Human Rights: Collected Texts, S.1 (7th ed. 1971). 39 Pan American Union, Final Act of the Ninth International Conference of American States. 38. (1948). 40. For an excellent review of European anti-hate speech laws, see Kretzmer. 1987. “Free Speech and Racism. Cardozo Law Review. 8:45. Domestic states of the United States have also enacted anti-hate group legislation and constitutional provisions, such as group libel laws. See e.g., Ill. Const. Article 1, S20; Fla. Stat. SS876.17-.20 (1987); N.C. Gen. Stat. S14.12-.14 (1986); Okla. Stat. Title. 21, SS1301-1306 (1981). 41. Williams, Patricia. 1987. “Spirit-Murdering the Messengers: The Discourse of FingerPointing as Law’s Response to Racism. Miami Law Review. 42:127, 139. 42. For a review of definitions of racism , see Sedlacek, W. and G. Brooks. 1976. Racism in American Education: A Model for Change. 38. 43. Kitano, H. 1974. Race Relations, discusses the ways in which ethnics avoid situations where they will encounter prejudice; Incidents such as this are described in, Sims, P. 1982. The Klan, 176. 44. Canadian Human Rights Reporter. 1997. Hate Propaganda Casebook. Vancouver: Canada. Human Rights Reporter, para. 59, D/455, 456. 45. The Canadian Oxford Dictionary. 1998. Toronto: Oxford University Press, 645. 46

A Call For Action: Hate and Bias Activity Roundtable. June 2-23, 2000. Prepared for the

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Honourable Hedy Fry, P.C., M.P. Secretary of State (Multiculturalism) (Status of Women). Third Draft - July 27, 2000. 25. 47. Ibid. 26. 48. Ibid. 7. 49. Ibid. 13. 50.Sexual orientation: (also sexual preference) the fact of being attracted to people of the opposite sex, of one’s own sex, or both sexes.” The Canadian Oxford Dictionary. 1998. Don Mills, Ontario: 1327. 51. Lahey, Kathleen A. 1999. Are We “‘Persons’ Yet?: Law and Sexuality in Canada. Toronto: University of Toronto Press. 52. Leshner v. Ontario (No. 2) (1992), 16 C.H.R.R. D/184 (Ont. Bc. Inq.). 53. Haig v. Canada (1992), 16 C.H.R.R. D/226 (Ont. C.A.). 54. Canada (Attorney General) v. Mossop (1993), 17 C.H.R.R. D/349 (S.C.C.). 55. Moore v. Canada (Treasury Board) (1996), 25 C.H.R.R. D/351 (Can. Tribunal). 56. McAleer v. Canada (Human Rights Commission) (1996), 26 C.H.R.R. D/280 (F.C.T.D.). 57. Dwyer v. Toronto (Metro) (No. 3) (1996), 27 C.H.R.R. D/108 (Ont. Bd. Inq.). 58. Vriend v. Alberta (1998), 31 C.H.R.R. D/1 (S.C.C.). 59.The Board of Inquiry had no jurisdiction with respect to the federal income Tax act, however, the Board of Inquiry encouraged the Government of Ontario to persuade the government of Canada to change the Income Tax Act. 60. Leshner v. Ontario, at para. 65-67. 61 .Leshner v. Ontario, at para 74. 62. Leshner v. Ontario, at para 74. See also paragraphs 212-220 for further testimony. 63. Sexual orientation is defined in Leshner: “Sexual orientation was added to the Code as a prohibited ground in 1986 (S.O. 1986, c. 64, s. 18(1). While not defined in the Code, it is “commonly understood to denote an individual’s orientation or preference in terms of sexual

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relationship to others, whether homosexual or heterosexual or perhaps both. (Respondents argument para. 26). As Dr. Valverde testified, sexual orientation is a vital aspect of an individual’s psychological identity. Dr. Valverde emphasized that sexual orientation functions in a similar manner to religion or ethnicity with respect to a person’s identity (Transcript, Vol. 5, pp. 52-57). Public recognition of one’s identity and inherent dignity is essential to healthy social integration into community to healthy social integration into community life.” (McAleer v. Canada Human Rights at para. 45). In Haig, the Ontario Court of Appeal read the words ‘sexual orientation’ into s. 3(1) of the Canadian Human Rights Act R.S.C., 1985, c. H-6. At p. 508 [D/232, para. 27]. Canadian Human Rights Reporter. 1997. Sexual Orientation Casebook. Vancouver: Canadian Human Rights Reporter, D/49. 64

65. “As for the inclusion of ‘sexual orientation’ as a prohibited ground of discrimination, the respondents underline that the Ontario Court of Appeal in Haig, supra. held sexual orientation to be an analogous ground of discrimination under s. 15 of the Charter. McAleer v. Canada (Human Rights Commission) at para. 17.3. 66.The Canadian Human Rights Commission rejected this argument arguing the Pedophiblia is a sexual desire directed towards children. The Commission notes that bestiality refers to copulation between a human being and an animal. Sexual orientation refers to an individual’s preference with respect to gender. 67. McAleer v. Canada (Human Rights Commission), para. 7. On a final note, the Tribunal remarked that the fact that Mr. McAleer does not approve of homosexuality is certainly a view he is free to communicate telephonically, as long as he does not do so in such a manner as to offend subsection 13(1) of the CHRA. at para. 8. 68. Major J. notes “The province of Alberta was invited to but declined at the appeal to explain how people with different sexual orientation were not part of the phrase “all persons are equal in dignity and rights’. As well, the Province at Alberta failed to demonstrate how the exclusion of sexual orientation from the IRPA accords with its legislative purpose. It is puzzling that the Legislature, having enacted comprehensive human rights legislation that applies to everyone in the province, would then selectively deny the protection of the Act to certain groups of individuals. No explanation was given, and none is apparent from the evidence filed by the Province’. Canadian Human Rights Reporter. 1997. Sexual Orientation Casebook. Vancouver: Canadian Human Rights Reporter, (Vriend v. Alberta, para. 191), D/60. . 69. In considering the question of whether sexual orientation should be a prohibited ground of discrimination, Russell J. from the Alberta Court of Queen’s Bench (1994) found that sexual orientation was related to sex or gender as a prohibited ground. “... in her opinion sexual

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orientation was related to sex or gender as a prohibited ground and “[w]hile there is no obligation on the Province to legislate to prohibit sexual orientation, when it does so it must provide evenhanded protection in a nondiscriminatory manner, or justify the exclusion ([D/365, para. 49]}.”Alberta Court of Queen’s Bench (1994), 152 A.R. 1 [20 C.H.R.R. D/358] at para 14. 70. Vriend v. Alberta, Alberta Court of Queen’s Bench (1994), 152 A.R. 1 [20 C.H.R.R. D/358]. 71. “Russell J. was satisfied that the discrimination homosexuals suffer “is so notorious that [she could] take judicial notice of it without evidence’ (p. 6[D/361, para. 12]). She went on to consider whether homosexuals are a discrete and insular minority entitled to protection under s. 15(1) of the Charter, and concluded that sexual orientation is properly considered an analogous ground under s. 15(1). This issue has since been resolved by the decision in Egan. v. Canada, [1995] 2 S.C.R. 513, which held that sexual orientation is an analogous ground” Canadian Human Rights Reporter. 1997. Sexual Orientation Casebook. 31, paragraph3D/14..11-14. . This was well expressed by R.W. Renke. 1996. “Case Comment: Vriend v. Alberta: Discrimination, Burdens of Proof, and Judicial Notice.” Alberta Law Review. 34:942-43. 72

73. “It thus is apparent that there is a clear distinction created by the disproportionate impact which arises from the exclusion of the ground from the IRPA.” Canadian Human Rights Law Reporter, Sexual Orientation Casebook. paragraph 82, D/31. 74. “As demonstrated by McLachin J., writing for the majority in Miron v. Trudel, [1995] 2 S.C.R. 418, this court has endorsed a much more varied and comprehensive approach to the determination of whether a particular basis for discrimination is analogous to those grounds enumerated in s. 15(1). At paras. 148-49 she explained that: “One indicator of an analogous ground may be that the targeted group has suffered historical disadvantage, independent of the challenged distinction: Andrews, supra, at p. 152 per Wilson J.; Turpin, supra, at pp. 1331-32. Another may be the fact that the group constitutes a “discrete and insular minority’: Andrews, supra, at p. 152 per Wilson J. and at p. 183 per McIntyre J.; Turpin supra, at p. 1333. Another indicator is a distinction made on the basis of a personal characteristic; as McIntyre J. stated in Andrews, “(d)istinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed” (pp. 174-175). By extension, it has been suggested that distinctions based on personal and immutable characteristics must be discriminatory within s. 15(1): Andrews, supra, at p. 195 per La Forest J. Additional assistance may be obtained by comparing the ground at issue with the grounds enumerated, or from recognition by legislators and jurists that the ground is discriminatory: see Egan v. Canada, supra, per Cory J.” Canadian Human Rights Reporter. 1997. Sexual Orientation Casebook. Vancouver: Canadian Human Rights Reporter, Paragraph 186 at p. D/58.

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75. “The reality of this cruel and unfortunate discrimination was recognized in Egan. Indeed, it provides the context in which the legislative distinction challenged in this case must be analyzed. The reality of society’s discrimination against lesbians and gay men demonstrates that there is a distinction drawn in the IRPA which denies these groups equal protection of the law by excluding lesbians and gay men from its protection, the very protection they so urgently need because of the existence of discrimination against them in society.” Canadian Human Rights Reporter. 1997. Sexual Orientation Casebook. 31 C.H.R.R., D/32, at paragraph 84. 76. Based on a 1990 Statistics Canada study on consumer finances, yielding data on homes in which two unrelated adults of the same sex live together, excluding students and showing that over 90% of the same-sex households consist of two income earners, it is estimated that 1.5% of Canada’s couples are gay, B about 140,000 couples. The Canadian Finance Department released the study in 1999 written by tax policy officer Albert Wakkary, saying including same-sex couples in spousal statutes will increase Ottawa’s revenue by $20 million, a minuscule savings for the $77 billion tax system. (CLGRO, 2000:37). 77. Hess reviewed the following materials: The Pro-Life Activists Encyclopedia; Violence and Homosexuality; Newspaper clippings RE: Celebration of Marc Lepine at Petawawa; Born that Way; Ottawa Update on Svend Robinson; Philip Mayfield MP Questionnaire; Georgia Straits clippings RE: Reform Party Family Caucus; House of Commons Debates - M.P. Skoke; The Homosexual Dilemma; Queer Nazis; 10 Reasons why Alex Munter Must Resign; Psychology of Homosexuality; What Causes AIDS and Can it be Cured; The Face of Tommorrow: The Metro Renaissance Committee; Free Speech Monitor; CAFÉ; Gay Lessons; Medical Consequences of What Homosexuals Do; Child Molestation and Homosexuality; Homosexuality & the AIDS Threat to the Nation’s Blood Supply; AIDS, the Blood Supply and Homosexuality; Medical Aspects of Homosexuality; ISIS Position Paper on Homosexuality; What Homosexuals Do (It’s More than Merely Disgusting. Hess, Ingrid. 1996. “Appendix 1.” Prosecution and “AntiHomosexual’ Publications. Edmonton, Alberta: Alberta Justice, Appeals and Criminal Law Policy, at 12. 78. In 1984, Metropolitan Toronto Police Association President Paul Walter is quoted in Arnold Bruner’s report on the bathhouse raids in Toronto. Walter is quoted to be opposed to hiring gay police officers because “he felt they would be prone to engage in overt sex acts with each other in inappropriate places” and “as homosexuals become older, their sexual appetite turns increasingly to young boys” (CLGRO, 1994:37; Bruner, 1991). 79. In the Vriend case, Justice J.A. McClung linked homosexuality with serial killers and pedophiles. In February 1996, the Alberta Court of Appeal overturned the judgement in Vriend, instructing the province to change the IRPA to include “sexual orientation.” Mr. Justice J.A. McClung, writing in the majority decision, says judges should not be making decisions that are within the jurisdiction of the legislature. Further, he expresses concern that too much protection

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might be given to the wrong people: “It is pointless to deny that the Dahmer, Bernardo, and Olsen prosecutions have recently weighted public concern about violently aberrant sexual configurations and how they find expressions against their victims,” and adds, “no protection is afforded by the legislation to heterosexuals which is simultaneously denied to homosexuals” (CLGRO, 1996:5). 80. In May 2000, the Canadian Broadcast Standards Council (a peer-driven council of Canadian broadcasters, with no powers of enforcement) reprimands the Dr Laura Schlesinger show for “abusive discrimination” and violating the CBSC ethics code in calling LGBs deviant and linking gay men to child-molesting, but though the CBSC was worried her comment could result in hostility or brutality, they decided she does not encourage people to kill LGBs. Radio stations carrying the show must now broadcast a prepared statement during peak listening hours stating they are violating the CAB (Can Assn of Broadcasters) code of ethics. Procter and Gamble decides to advertising during the show. (CLGRO, 2000). By Oct 2000 all Global-owned TV stations in Canada have canned Dr Laura’s show - Global says because of low ratings; protesters say because of protests which caused 40+ advertisers to withdraw (CLGRO, 2000). 81. In February, 2000, Winnipeg’s Kristine Barr, a youth health educator, went public with her suit lodged last June against local radio station AM1290 owned by CHUM Group Ltd, when its shock jocks called her a diesel dyke and homo-fascist and implied she wishes to sexually abuse children. The station was reprimanded before by the CRTC for its comments on out gay city councillor Glen Murray (CLGRO, 2000). 82. In 1995, an MP linked homosexuals with pedophiles, necrophilia and violence in response to the issue of sexual orientation as a protected ground under Canada’s human rights legislation. In March 1995, Liberal Tom Wappel stated that “sexual orientation” human rights protection would extend to “bestialists, pedophiles, and necrophiles” (CLGRO, 1995:11). 83. In defense of his Liberty Net hotline message promoting the execution of homosexual child abusers, Tony McAleer responded to the Canadian Human Rights Commission tribunal that his “message was not about homosexuals but paedophiles and it is ok to hate paedophiles” (CLGRO, January 1994:2). 84. In April 1994, in the case of Delvin Vriend, (February 1991), Justice Anne Russell of the Court of Queen’s Bench in Alberta rules that the Individual Rights Protection Act is inconsistent with the Charter and that the IRPA must be administered as though it provided protection against discrimination on the basis of sexual orientation. Vriend had been fired from his college in 1991 after coming out. The Alberta HRC was unable to take the case because sexual orientation is not a prohibited ground of discrimination in the province. He therefore filed a Charter challenge. The province has 30 days to appeal. Diane Mirosh, the original minister of community development said “gay rights are special rights” and Gary Mohr the new minister, tells media “the decision

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will give licence to paedophilia” (CLGRO, April, 1994:12). In May 1994 the Government of Alberta appealed the decision which it eventually lost at the Supreme Court of Canada (CLGRO, May 1994:13). 85. Some Canadians suggest that supporting “homosexuality” is promoting a deviant lifestyle. In August 1993, Blue Line, Canada’s national law enforcement magazine refused to run an ad for Toronto’s Gay Cops United Foundation and thereby “promote a deviant lifestyle”. Editor Morley Lymburner says “I do not feel that your, or anyone else’s, sexual tastes should be a topic of promotion in my magazine” (Blue Line, Aug/Sept, 1993) (CLGRO, 1993:10). 86. In 1997, the American Psychological Association voted to oppose “conversion” therapy attempting to turn gays straight and adds Athe APA opposes all portrayals of lesbian, gay, and bisexual people as mentally ill and in need of treatment due to their sexual orientation.” CLGRO, 1997:12). 87. The theme of change, and moral responsibility to participate in society was prompted by two Canadian groups which oppose the introduction of Bill C-23, an act to modernize the status of Canada in relation to benefits and obligations which could change 68 laws affecting unmarried couples and gives same-sex couples common law status. The bill was introduced by the federal Liberal government in February 2000. The government committee heard from right wing groups such as REAL Women and the Toronto District Muslim Education Assembly while refusing to hear from the National Action Committee on the Status of Women (NAC). The Toronto District Muslim Education Assembly stated that “gay relationships negate the higher societal duty of procreation ... and promote moral corruption and degradation of human beings” what next they asked, “will we approve incest?” Gwen Landolt, speaking for REAL Women, stated that “if people can change from straight to gay (coming out) they can change from gay to straight and they should” (CLGRO, 2000:8). 88. At a Ottawa Mosque in May 1999, Imam Gamal Solaiman denounced same-sex relationships as “unnatural, unhealthy, and against god’s will”, and invites Muslims to contribute to the Liberals or the Tories (CLGRO, 2000:16). Two provincial election candidates canvass after the service (CLGRO, 1999:16). 89. In Toronto, a Toronto Transit Commission employee refuses to work with transfers that say “Lesbian/Gay/Bisexual Services” calling it a “health and safety issue” and is disciplined by the TTC. The transfers are the result of a human rights case launched in June 1993 and resolved in November 1998, in which the TTC refused to put up gay-positive posters (CLGRO, 1999:19). 90. In June 1999, in response to the M v. H decision and talk of the liberals supporting same-sex marriage, Reform Party Critic Eric Lowther (Calgary Centre) argues that the recent supreme court ruling in M.v.H. has confused people: “with the capacity for natural heterosexual intercourse as an essential element ... marriage provides a healthy biological design for

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procreation. Other types of relationships are technically incomplete” Lowther also mentions [heterosexual] “parental fullness” and “the gender-deprived parenting of same-sex relationships,” suggesting that children of straight couples grow up to behave better. Wentworth-Burlington MP John Bryden speaks of “the right of children to heterosexual parents” (CLGRO, 1999:19-20). 91. In April, 1996, Focus on the Family, protested against the inclusion of sexual orientation in the Canadian Human Rights Act. In February 1996, the Canadian Senate passed Warren Kinsella’s Bill S-2, to include sexual orientation in the CHRC. Focus on the Family gave written testimony “against passing the bill because it will discourage gay people from seeking the cure” and a Manitoba church claimed that its group was against the ill because it is a “threat to Canada’s youth” (CLGRO, 1996:13). Reform MP Bob Ringma says he would dismiss to the back room or fire a gay or black man or any other minority-group member whose presence was affecting sales. Ringma apologizes and resigns as party whip (CLGRO, 1996:13). 92. The notion that homosexuality is a choice and that people can change is evident in the following comment made by Alberta Reform MP John Williams. In April 1995, Williams opposed the National Gallery’s $200,000 purchase of General Idea’s “One Year of AZT,” a 1991, room-sized work composed of 1,825 large white fibreglass capsules: “We shouldn’t be glorifying a disease that we get through choice: We should be using our money to educate our young on the dangers of promiscuity and immorality” (CLGRO, 1995:16). 93. Continuing the mental illness theme, in February 1994, University of Ottawa professor Paul Lamy was investigated by the Department of Social Sciences after complaints about his teachings: “you call them bisexuals, I call them psychopaths”; lesbians and gay men don’t have family values; feminists are irrational manhaters, etc. Lamy later declares he has retracted the psychopath comment and the case is therefore closed (CLGRO, 1994:6). 94. The link is often made between “unnatural sex practices” and homosexuals as sexual abusers and criminals. In July 1994, People Against Queering Canada hold a 150-strong rally in Sarnia “to stop the gay rights movement.” A handout with many biblical quotations says “they claim to be a minority group and should be treated as such... The only tie which binds homosexuals together is their unnatural sex practice, thus making them a far cry from religious, racial, or any other minority group. Therefore the homosexual community should be entitled and treated no differently than any other sex offender, rapist, or chid molester” (CLGRO, July 1994:24). 95. The notion that gay sex is unnatural and sick is promoted by the Reverend Ken Campbell’s Metro Rennaissance in his brief presented to the Royal Commission on Learning. The brief stated the following: “A good rule of thumb is, ‘if it doesn’t fit, don’t put it in.’; Perhaps you’ve been brainwashed by the media to be ‘tolerant’ and accept homosexual behaviour; Then let’s imagine for a moment that there are people with an ‘orientation’ where they are obsessive about putting broom sticks up the orifices of their nostrils with recurring stretching, tearing and

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bleeding; “Oh, get serious,” you’re probably saying, “That’s absolutely ludicrous”; Well, no more ludicrous that [sic] shoving something into a rear end’s orifice with the same results of stretching, tearing and bleeding” (CLGRO, 1993:21). 96. In response to Reform Health Critic Grant Hill’s comments about Bill C-33 and “gay disease”, Dr. Jack Armstrong, head of the Canadian Medical Association, tells the annual meeting of the Medical Society of Nova Scotia that “physicians in Canada are here to provide care to all citizens of this country, regardless of their sexual preference or orientation or for any other reasons” (CLGRO, 1996:15). 97. Van Zijl v. Goeree. 1990. RvdW Nr.41 (HR Neth), at 306. “In its ruling, the court noted that the propaganda diminished the plaintiff’s position in society and thus violated his right to equal treatment under the Dutch Constitution. This right, which prohibits discrimination “on any grounds whatsoever,” thus functioned to limit the right to free speech.” Cohen, Jonathan. 2000. “More Censorship or Less Discrimination? McGill Law Journal. 46(69), at 88. 98. In response to Bill C-23, the to modernize the statutes of Canada in relation to benifits and obligations, Peter Stock of the Family action Coalition stated: “there is no discernible good that these relationships contribute to society” (CLGRO, 2000:13). In April, 2000, Bill C-23 reached 3rd reading and passed 174-72 with much argument about bigotry, the moral fibre of society, etc. the term “common-law partners” now covers gay and straight relationships alike. In all, 170 amendments were filed by opponents. The Reform party asked that the bill be sent back to committee for further amendments to insert the definition of marriage many times, however the motion was defeated. 99. In response to Bill C-23, the to modernize the statutes of Canada in relation to benifits and obligations, Peter Stock of the Family action Coalition stated: “there is no discernible good that these relationships contribute to society” (CLGRO, 2000:13). In April, 2000, Bill C-23 reached 3rd reading and passed 174-72 with much argument about bigotry, the moral fibre of society, etc. the term “common-law partners” now covers gay and straight relationships alike. In all, 170 amendments were filed by opponents. The Reform party asked that the bill be sent back to committee for further amendments to insert the definition of marriage many times, however the motion was defeated. 100. In 1994, Jim Egan and Jack Nesbitt’s challenge to the Old Age Security Act reaches the Supreme Court of Canada. Government lawyers argue that lesbians and gay men are not a needy group. Egan and Nesbitt had applied for a low-income supplement and had been living together since 1948. A Coalition, including the Attorney General of Quebec, the Canadian Conference of Catholic Bishops, REAL Women, Focus on the Family, Hindu, Sikh and Muslim groups, the Evangelical Fellowship of Canada, and the antigay Interfaith Coalition on Marriage and the Family, argued that the state can and should “privilege’ heterosexual relationships. In its joint

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brief, the coalition said: “Society is more prepared to eat excrement than it is prepared to accept homosexual relationships” (CLGRO, 1994:34). The government withdrew its support of Egan and Nesbitt following the defeat of Bill 167. 101. In 1994, Alex Munter was elected to Ottawa’s regional council to represent the city of Kanata. His campaign was the subject of organized homophobia. A flyer was circulated, “Ten Reasons Why Alex Munter Must Resign,” which stated, “the average homo man eats excrement from about 23 other men each year” and states that two U.S. cities have had epidemics because of “homosexual food handlers in restaurants” (CLGRO, 1994:42). 102. In January 2000, the Winnipeg Council of rabbis said that the decision of one of their peers to perform same-sex and interfaith unions “will lead to communal suicide”, but Rabbi Michael Levenson says he has performed many such unions in the U.S. which is more tolerant (CLGRO, 1999:2). 103. The notion that lesbians and gay men are a danger to society and have the power to annihilate society as Canadians know it is promoted by Nova Scotia MP Roseanne Skoke in response to the discussion of changing the definition of spouse or society. During “a CBC interview on the topic, Skoke states “[they] are not families in law ... and they will not be family.” ... “there are those innocent victims that are dying from AIDS and then there are those homosexualists that are promoting and advancing the homosexual movement and that are spreading AIDS. AIDS is a scourge to mankind and there will be no cure for AIDS. And so this love, this compassion [between homosexuals] based on an inhuman act, defiles humanity, destroys the family, ... and is annihilating mankind.” “To redefine the family to include homosexual and lesbian relationships is immoral, unjust, and a violation of the rights of the family which are well founded in both Canadian and natural law... Skoke goes on to say “the family unit is the basic institution of life and the solid foundation on which our forebears built this great nation.” Skoke also opposes lesbian, gay, bisexual child custody and human rights protection on the basis of sexual orientation and compares homosexuality to pedophilia and bestiality (CLGRO, 1994:16). On the same issue, Roman Catholic Archbishop of Toronto Aloysius Ambrozic, patronized gays and lesbians by alluding that they were weak and subject to their sexual appetites: “We should be kind to homosexuals and understand their problems ... The poor devils, they’re their own worst enemies,” (CLGRO, 1994:16) leaving one to wonder if sex is all that gay and lesbian persons think about and do. 104. Some believe that the “homosexual movement” undermines the bible. In July 1993, the Saskatchewan president of the Christian Heritage Party says human rights protection for lesbians and gay men has turned the bible into hate literature (citing the section of Leviticus which that says gays should be put to death) and lodges a complaint with the Saskatchewan HRC to have the sexual orientation amendment reversed for undermining the freedom of expression provisions.

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The SHRC has previously rejected Owen’s contention that the bible is hate literature. 105. The 1946 definition of crimes against humanity: “... an offense against certain general principles of law which in certain circumstances, becomes the concern of the international community, namely, it it has repercussions reaching across international frontiers, or if it passes in magnitude or savagery any limits of what is tolerable by modern civilization.” Bassiouni, M. Cherif. 1946. Crimes Against Humanity. 106. The suggestion that gays and lesbians are a social and public health problem is elaborated upon in the following case that went to the British Columbia human rights commission. After a Victoria B.C. resident in Debember 1996, bought antigay hate material (U.S. Family Research Institute pamphlets) titled “Murder, Violence and Homosexuality,” “Medical Consequences of What Homosexuals Do,” and “What Causes Homosexual Desire and Can It Be Changed?” in Prince George’s Ave Maria Gifts and Health Foods, she complained to the owner Louis Matte. He refused to withdraw any of the material except the first-mentioned leaflet. An employee of the store quit in protest and reported to the CBC which broadcast the news in January. The PG Coalition for Human Equality then formed. In February, Matte took out a full-page ad in the Free Press, criticizing the CBC, describing homosexuality as a social and public-health problem, and citing “traditional Christian values” and Alberta Reform MP Grant Hill. Shane Mills of the Free Press advocates that, for the sake of democracy, the BC government revoke the section of the human rights act prohibiting hate literature against lesbians, gays, and bisexuals. The RCMP will not lay charges since lesbians, gays, and bisexuals are not an protected group under the Criminal Code. In addition, they say that the distribution of religion-based hate literature in good faith is protected (CLGRO, 1997:4). 107. Upon banning the books Asha’s Mums, Belinda’s Bouquet, and One Dad, Two Dad’s from a BC public shcool, the board chair stated, “I do believe that if parents want to teach their children that homosexuality is not a healthy choice, then they have that right to in this country B at least for now.” (CLGRO,1997:6). The BC Teachers Federation had passed a resolution in March to “create a program to eliminate homophobia and heterosexism in the BC public school system.”(CLGRO, 1997:6). 108. In October, 2000, posters go up in Toronto’s gay district announcing the formation of a lesbian-bashing group; police say they are treating it as “uttering a death threat” (CLGRO, 2000). In May 1995, Winnipeg police say they cannot press charges against the distributors of pamphlets calling for the killing of homosexuals since the federal law does not protect women or lesbians, gays and bisexuals (CLGRO, 1995:22). The notion that gay persons should be killed if found to be child molesters is evident in the beliefs promoted by the Liberty Net hotline. In January 1994, the Canadian Human Rights Commission tribunal investigated Liberty Net hotline, which broadcast a recorded message by Tony McAleer in January 1993. The hotline message stated “ ... child molesters, homo or otherwise, should be executed. Hell, the ancient Celts used to

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take their queers and trample them into peat bogs. It’s not such a bad idea, maybe.” In this case, the CRTC ruled that Liberty Net must cease “discriminating on the basis of sexual orientation, in particular on the basis of homosexuality,” says this “exposed a person or persons to hatred or contempt on the basis of their sexualorientation” The CHRC cannot close down the phoneline; but any violation of the order could lead to contempt of court charges. McAleer’s lawyer, Doug Christie, who also defended Ernst Zundel, says 1) sexual orientation is not protected by the Charter or the CHRA, and 2) the message was not about homosexuals but pedophiles and it is ok to hate pedophiles, and 3) the message was humorous. In a previous complaint McAleer, who organized a white supremacists meetings in Vancouver in 1993, was ordered to close down the phoneline because of racist messages and is currently appealing a contempt of court charge. The CRTC suspended Liberty Net’s right to telephone service because of the racist messages. Telephone messages are federally regulated. 109. In February 1994, possibly in response to January’s Lesbian/Gay/Bisexual awareness week, handwritten flyers were posted at the University of Toronto and stuffed into student newspaper, The Varsity, reading, “Repent or perish. The death penalty for homosexuality still stands.” (CLGRO, February, 1994:5). The University of Toronto responds that it cannot pursue an investigation because “sexual orientation’ is not a protected group under the Criminal Code. 110. That gays and lesbians pose a danger and are a dangerous and criminal element is evident in the position taken by BC Reform MP Bob Ringma in a December 14th interview in the Nanaimo Free Press: “I’m not in favour of them trying more and more to make their way of life spread around to other parts of the straight community B especially when they involve children C I would defend the right of a employer to discriminate against homosexuals if he found the homosexual had a negative effect on his business” (CLGRO, 1994:41). 111. That gays and lesbians may be corrupting the Education system in Toronto, may have been on the minds of two Muslim groups. In September 2000, 600 Muslim fundamentalists (Ontarians for Traditional Family Values, and the Toronto District Muslim Education Assembly) rally outside Queen’s Park and march to the Toronto schoolboard under the slogans “morality not promiscuity”, “save the children”, and “education not moral corruption.” The group claims they objection to the school board’s positive teachings on homosexuality (CLGRO, 2000:23). 112. The theme of gays and lesbians imposing themselves on others also arises in another case being heard by the British Columbia Human Rights Comission (2000). In October, 2000, hearings began on a hate discrimination case filed by a group of gay teachers and straight parents in B.C. against the Vancouver based Citizens’ Research Institute which sent out in 1996, “A Declaration of Family Rights,” which was a mailing showing them how to threaten legal action against schools that portray homosexuality as something “acceptable” and “must be tolerated”. 113. The conspiratorial nature of gays and lesbians was discussed at the Human Life

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International conference in Toronto. In April 1999, the Human Life International 18th annual world conference in Toronto met with large demonstrations, and confined itself to a hotel. The conference featured lectures such as “Abnormal Relations: Same Sex Attraction and Marriage,” with opening speaker Father Paul Marx, who founded HLI in 1972. He endorses the views of Paul Cameron, who was barred from the APA in 1983 for saying he thought that HIV+ persons should be branded on the face and forced to be celibate or eliminated. Marx’s 1991 book, The Apostle of Life, says homosexuals, feminists & Jews are part of a conspiratorial “culture of death,” that “Jews lead the abortion holocaust.” Conference presenter Judith Reisman claims “Hitler was brought to power by the homosexual movement.” Two men who protested against HLI were arrested and the charges were later dropped (CLGRO, 2000:12-13). 114. In April 1995, the U.S. anti-abortion group Human Life International held its 14th annual world conference in Montreal, where some 1000 attended. The HLI “position statement” says “homosexuality is deviant behaviour that is socially, and personally destructive”. Theresa Bell, executive director of HLI Ottawa, states, “Homosexuality is a life issue ... on an economic level, if we’re going to approve [of LGBs], where will we get the population from?” (CLGRO, 1995:13). Reisman claims: “you will not ever do anything about homosexuality until you address pornography”, and Father John Harvey of Courage feels gays should return to their opposite-sex spouses or live without sex (CLGRO, 1995:14). 115. The belief that sexual minorities are violent was promoted by the Reverend Fred Phelps in June 1999. Minister of the Kansas-based Westboro Baptist Church, Phelps runs the Internet site godhatesfags.com. He planned to visit Canada on June 28, and burn the Canadian flag outside the Supreme Court building in Ottawa to show his objection to the M.v.H decision. Phelps stated: “Canada is a grotesque malignant tumor sitting atop Uncle Sam’s head, threatening to metastisize.” Margie Phelps, his daughter claims, “everyone knows fags are violent” and “your police officers are as black-hearted as the perverts”. Phelps claims he come to Ottawa at the end of pride week celebrations July 18 and will picket “Ottawa fag churches” July 19 (CLGRO, 1999:23). In August 1999, Fred Phelps does not show in Ottawa, but his daughter and press officer does, and burns the Canadian flag on the steps of the supreme court building: “we’re here to basically say it’s not ok to be gay.” she says, “God’s hate is wonderful and perfect and someone’s got to start talking about that. He does not love everybody.” They proceed to Montreal where they unfurl and burn a “fag flag”, a scuffle ensues, and two counter-protesters are arrested for disturbing the peace (CLGRO, 1999:26). In February 1994, at gay activist Randy Shilt’s funeral service, Reverend Fred Phelps and 10 supporters carrying signs that read “God Hates Fags” The Phelps clan also organized a demonstration outside the funeral of murdered gay student Matthew Shepperd. 116. In April 1998, in response to the M.vH. decision, Ken Campbell and some of his groups take out a $45,000.00 full-page add in the Globe and Mail declaring that the government is

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“imposing ‘bathhouse morality’ on the churches and in the nations living rooms” (CLGRO, 1998:7). Philip Shea files a complaint with the OHRC under s. 13.1 of the OHRCode claiming it is illegal to announce the intention to discriminate or incite others to do so, however his complaint is later dismissed on the grounds of freedom of expression (CLGRO, 1998:7). 117. Vancouver-area Reform MP Paul Forsyth opposed the inclusion of sexual orientation in the hate crime bill, C-41 because “gay bashing is as likely to be perpetrated by vengeaful gays suffering from the effects of shortterm relationships and poor health”(CLGRO, 1995:11). 118. In April 1995, hundreds of protestors in Winnipeg shout down antigay evangelist Bob Larson from Colorado; he leaves the university campus without presenting his speech. 800 of Larson’s supporters were then including local KKK sympathizer Bill Harcus,. Larson’s crusades include opposing, gays, abortion, NRT, witches, Satanism, and heavy rock. Later, Larson uses the event in a fundraising letter to “wage war in the Canadian Courts to demand our Christian rights”: “The devil is trying to force me off the air in every city. He’s using a well-organized homosexual movement to do it”(CLGRO, 1995:16). 119. In June, 1995, Bill C-41, the federal hate crimes legislation passes commons 168-51, with sexual orientation included as a protected category. Reform MP Myron Thompson says it is a) “condoning immorality” and b) “85% of Canadians agree with him” (CLGRO, 1995:23). 120. In July 1995, the BC human rights minister Ujjal Dosanajh announces Bill 32 to overhaul the BC human rights act which would include replacing the BC Adoption Act with one that allows common-law couples and unmarried adults to adopt. Reform MP Richard Neufeld responds that children are raised much better, and their whole outlook on live will be different, if they are raised in a traditional family. Reform party leader Jack Weisgerber says “in the event of the death of a lesbian or gay parent, a child should be taken away and adopted by a traditional family. At the June Reform convention it is resolved that “the traditional family is the basis of society” and defines marriage as “the legal union of two people of the opposite sex” (CLGRO, 1995:25). 121. Gays are considered to be members of well organized militant groups. In response to the defeat of Bill 167 (Ontario) Federal Reform MP Myron Thompson of Wild Rose, Alberta issues a press release “The failure of the militant gay and lesbian special interests to get same-sex legislation passed in Ontario is a victory for the traditional family ... the traditional family was the most important link to social order and peace in Canada.”(CLGRO, 1994:18). 122. In the following examples it is argued that lesbian or gay “lifestyle” is a departure from christianity and godliness, and is unnatural. In September 1994, Fidelity, a group of Conservative Anglican clergy, sponsors a conference on homosexuality, promoting the view that “homosexuality is an inherent departure from God’s order.” (CLGRO, 1994:29). Speakers include Sue Careless from CURE and US therapist Elizabeth Moberly who claims she “cures”

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gays (CLGRO, 1994:29). In September 1994, MP Roseanne Skoke states that gays and lesbians impose their lifestyle on others: “We’re talking about imposing upon and insisting that all Canadians condone what is in my opinion immoral and unnatural ... I have a right as a Christian to defend the values of our Canadian country.” She feels that we are undermining and destroying Canadian values and Christian morality (CLGRO, 1994:29). When Bill C-41 passes second reading in October 1994, Ken Epp, Reform MP for Elk Island, Alberta, says the sexual fidelity will end AIDS and solve everything. Art Hangar, Calgary, Northeast, says he does not believe homosexuals should be treated as families (CLGRO, 1994:30). 123. In 1994, out gay Kanata counciller, Alex Munter’s campaign posters are defaced with antigay graffiti, and articles written by Robert Eady and Bruce Clark in local newspapers suggest a “hidden homosexual agenda”. In Toronto, out gay school trustee candidate Philip Share receives harassing telephone messages: “You fags are history. Your place is going to explode” and “Nobody’s going to vote for a fag and a Jew” (CLGRO, 1994:33). 124. In November, 1994, The Stratford Herald Beacon runs a piece beginning, “if homosexuals get special consideration in law against hate crimes, a push to legalize paedophilia won’t be far behind,” and going on to quote U.S. anti-gay researcher Paul Cameron, “homosexuals die younger, are unhappy, develop their sexual orientation through childhood homosexual experiences and are likely to pass it on by sexually assaulting young children” (CLGRO, 1994:37). 125. In December 1994, Scarborough Liberal MP Tom Wappel holds a special community forum at Danforth Gardens Public School on immigration and sexual orientation. Wappel says he cannot support the inclusion of “sexual orientation” in the CHRA, “since it could include paedophiles, maybe heterosexual, homosexual, and bisexual” ... “inclusion would imply that homosexuality is OK, which most of his constituents don’t believe. He distributes a 21-page document stating that homosexuals die early, homosexuals (apparently all men) are promiscuous, homosexuality can be unlearnt, etc.” (CLGRO, 1994:41). 126. In 1987, Toronto Life’s “Sex and Death” issue stated that bathhouses and in particular the Barracks help spread AIDS. In December 1993, Toronto Life finally publishes an apology 127. CERD, art.4. 128. Universal Declaration, art. 29(3). 129. ICCPR, supra note 83, art. 20. The Human Rights Committee jurisprudence, which has held that art. 20 is compatible with art. 19, is discussed in E.F. Defeis. 1992. “Freedom of Speech and International Norms: A Response to Hate Speech.” Stanford Journal of International Law. 29(57):83.

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130. (No. 488/1992), UN Doc. CCPR/C/50/D/488/1992 (1994), printed in the Report of the Human Rights Committee, UN GAOR, 49th Sess., Supp. No. 40, UN Doc. A/49/40, Appendix (1994) 226 [hereinafter Toonen]. The case is discussed in Wilets, at 51, n. 209. 131. The Canadian Oxford Dictionary. 1998. Don Mills, Ontario: Oxford University Press,1326. 132. “Sexism: 1) Prejudice or discrimination, especially against women on the grounds of sex. 2) Behaviour or attitudes derived from a traditional stereotype of sexual roles.” The Canadian Oxford Dictionary. Don Mills, Ontario: Oxford University Press, 1326. 133. The American approach on the necessity of a causal link between obscenity and harm to society was set out by Burger C.J. in Paris Adult Theatre I. v. Slaton (1972:60-61): Although there is no conclusive proof of a connection between antisocial behaviour and obscene material, the legislature ... could quite reasonably determine that such a connection does or might exist Twaddle J.A. expressed the view that Parliament was entitled to have a “reasonable apprehension of harm” resulting from the desensitization of individuals exposed to materials which depict violence, cruelty, and dehumanization in sexual relations. 134.Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) [1997] S.C.J. No. 96 (Q.L.); R. v. Drummond, [196] O.J. No. 4597 (Ont. Prov. Div.), per Hansen P.C.J. interpreting Criminal Code. R.S.C., 1985, c. C-46. s. 223; Dobson v. Dobson, [1997] N.B.J. No. 17 (Q,B.) (Q.L.). per Miller J.: upheld (1997), 148 D.L.R. (4th) 332 (N.B.C.A.); leave to appeal to S.C.C. granted: [1997] S.C.C.A. No. 406 (Q.L.). Dawson, T. Brettel. 2000. “First Person Familiar: Judicial Intervention in Pregnancy, Again: G. (D.F.).” Crow, Barbara A. and Lise Gotell eds. Open Boundaries: A Canadian Women”s Studies Reader. Toronto: Prentice Hall Allyn and Bacon Canada, at 322. 135. As Dawson recounts, these propositions became familiar in a preceding line of cases at the Supreme Court of Canada; Borowski v. Attorney General for Canada, [1989] 1 S.C.R. 342; R. v. Morgentaler. [1988] 1 S.C.R. 30; Daigle v. Tremblay, [1989] 2 S.C.R. 530 (abortion rights); R. v. Sullivan, [1991] 1 S.C.R. 489 (criminal negligence); G.(D.F.), [1997] S.C.J. No. 96 (Q.L.). 136. This section is taken from deGiere, Gregory. May 2001. Crimes Against Reproductive Rights in California. California Legislature and state Department of Justice: Senate Office of Research. http://www.sen.ca.gov/sorReprocrimies.htm 137. The group also included Joseph Forman of Blue Jay, CA, founder of Operation Rescue of California; Richard R. Murphy, self-identified as a Sacramento attorney; Rachelle Shannon, who is in federal prison for attacking clinics in Redding, Chico, and Sacramento and in Oregon and

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Nevada and shooting a doctor in Kansas. 138. Forman, Joseph, Richard R. Murphy, Rachelle Shannon, Paul Hill, Michael Bray, Donald Spitz, et al. Defensive Action Statement and The Second Defensive Action Statement, Army of God, Pro-Life Virginia, www.armyofgod.com/defense.html and www.ArmyofGod.com/defense2.html; Defensive Action, The Abortion Rights Activist, www.cais.com/agm/main/statement.htm; and Stephen J. Hedges, David Bowermaster, Susan Headden, Abortion: Who’s Behind the Violence? U.S. News & World Report, November 14, 1994; and Violence Against Reproductive Health Care Centers. 139. Province. October 30, 1988. “Clashes lead to arrests (Operation Rescue Blockades).”; Horwood, Holly. May 16, 1989. “Doctors picketed.” Province; O’Reilly, Michael. 1992. “When the protest comes home: Ontario doctor latest victim of anti-abortion picketing tactic. Canadian Medical Association Journal.147(10); Bolan, Kim. March 30, 1992. “Physicians’ residences, offences will be picketed, foes promise.” Vancouver Sun; Easton, Shelley. March 22, 1993. “Abortion docs in the crossfire; one in two surveyed report harassment on upswing.” Province; Easton, Shelly. March 22, 1993. “Doctors Fair Game: Pro-Life Society.” Province; Colburn, Glen. March 27, 1993. “Pro-choice groups want ban on anti-abortionist ‘intimidation’.” Ottawa Citizen; Vancouver Sun. April 13, 1993. “Vernon anti-abortionists target hospital; demonstrators vow doctors performing the procedure will be next.” Vancouver Sun; Toughill, Kelly. June 29, 1995. “Abortion protester limit to be reviewed.” Toronto Star; Vancouver Sun. April 13, 1993. “Vernon anti-abortionists target hospital; demonstrators vow doctors performing the procedure will be next.” Vancouver Sun. 140. Canadian Medical Association Journal. 1992. “Bombing of Toronto Abortion Clinic raises stakes in bitter dispute.” Canadian Medical Association Journal. 147(10): 1528-1533. 141. Bolan, Kim. July 12, 2000. “Phone call threatens abortion doctor.” Vancouver Sun. 142. Pemberton, Kim. April 2, 1998. “Groups demand names of abortion providers. Vancouver Sun; Bolan, Kim. March 5, 1999. “Anti-Abortion comic as terrifying as a home invasion, Priddy says.” Vancouver Sun. 143. Humphreys, Adrian. December 12, 1997. “Bizarre threats to doctor.” Hamilton Spectator; Humphreys, Adrian. January 2, 1998. “Anti-Abortion package threatens more violence.” Vancouver Sun; Wawrow, John. January 4, 1998. “Murderous Missive Chills Choicers.” Province; Poling, Jim. November 20, 1998. “Spectator receives 7th package, more anti-abortion anger.” Hamilton Spectator; Poling, Jim & Bill Dunphy. March 5, 1999. “Spectator talks to hate mail accused.” Hamilton Spectator; Bains, Camille. March 12, 1999. “Vancouver link found in threats against abortionists, police say.” Vancouver Sun 144. Coady, Lynn. February 2000. “The ‘A’ Word: Doctors are stalked by snipers and abortion

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providers back into the shadows.” Saturday Night. 145. Bolan, Kim. July 18, 2000. “Web sites probed in Romalis case.” Vancouver Sun. 146. LeBourdais, Eleanor. March 14, 1995. “Potential for violence causing fear among Canadian doctors who perform abortions.” Canadian Medical Association Journal. 152(6): 927-932. 147. Bill, Desmond. November 10, 1994. “‘All of us afraid’ at abortion clinic.” Toronto Star; Matas, Robert. November 10, 1994. “Police step up protection for doctors.” Globe and Mail; Aird, Elizabeth. November 10, 1994. “The shooting of Dr. Romalis.” Globe and Mail; Matas, Robert. November 11, 1994. “Sniping mirrors new stage of abortion violence, expert says.” Globe and Mail; Canadian Press. November 12, 1994. “Obstetrics-field MD’s ask Rock ro protection; shot doctor’s partner fingers anti-abortionists.”; The Province. November 13, 1994. “‘A test of his own medicine’:Anti-abortionists say a doctor shot in his Vancouver home got when he deserved B and warn of more violence to come.” The Province; Hughes, Fiona. November 13, 1994. “Abortion clinics wary in wake of shooting: Neo Nazi link.” Vancouver Courier; Bolan, Kim. November 14, 1994. “U.S. link probed in Romalis shooting.” Vancouver Sun; Vancouver Sun (editorial). November 14, 1994. “Restrain abortion foes.” Vancouver Sun; Smith, Charlie. November 11-18, 1994. “Local shooting reflects escalating anti-abortion tactics.” Georgia Strait (Vancouver); Wood, Chris. November 21, 1994. “Gunning down a doctor.” MacLean’s Magazine; LeBourdais, Eleanor. March 14, 1995. “Potential for violence causing fear among Canadian doctors who perform abortions.” Canadian Medical “Association Journal 152(6):927-932; Parton, Nicole. June 21, 1995. “Doctor recalls blood, terror of the day he was shot.” Vancouver Sun. 148. Bolan, Kim. July 12, 2000. “Romalis attacked again: Abortion provider survives stabbing at Seymour clinic.” Vancouver Sun. “1-A4; Jiwa, Salim. July 12, 2000. “Hooded man stabs abortion doctor.” The Province, A1-A3; Clark, Gordon. July 12, 2000. “Stabbing ‘an attack on us all’.” The Province; Skelton, Chad. July 13, 2000. “Ottawa says law adequate to protect abortion doctors: B.C. premier suggests Criminal Code be changed to further penalize those who attack doctors who perform abortions. Vancouver Sun, A1-A5; Dowd, Allan. July 12, 2000. “Police investigate stabbing of abortion doctor in Canada.” Reuters; Bolan, Kim. July 18, 2000. “Web sites probed in Romalis case.” Vancouver Sun; Bolan, Kim. July 19, 2000. “Meeting pursues plan to protect abortion providers.” Vancouver Sun; Bolan, Kim. July 12, 2000. “Phone call threatens abortion doctor.” Vancouver Sun; Nichols, Mark. July 24, 2000. “In the Name of Life.” MacLean’s Magazine. Bolan, Kim. November 19, 1994. “‘Pro-Lifers’ divided on question of violence against abortionists. Vancouver Sun. 149. Van Rijn, Nicolas. November 14, 1995. “Abortion MD’s shooting sparks alert.” Toronto Star. 150. The Province. November 13, 1997. “Abortion league sees link in attacks.” The Province;

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Canadian Press. November 16, 1997. “Profile of would be murderer who hates abortion doctors.” Canadian Press; Bolan, Kim. November 19, 1997. “Canada-wide team to probe shootings of abortion MDs.” Vancouver Sun; Roberts, David. November 13, 1997. “Abortion link pursued in shooting: Pro-choice advocates beef up security.” Globe and Mail; Bolan, Kim. November 13, 1997. “Shootings of 3 abortion Mds are linked, police suspect.” Vancouver Sun; Bolan, Kim. November 25, 1997. “The abortionist as an endangered species.” Vancouver Sun. 151. Poling, Jim. January 20, 1999. “Assassin’s bullet tested in abortion sniper case.” Hamilton Spectator; Immen, Wallace. October 26, 1998. “Abortion doctors’ security to tighten.” Globe and Mail, A4; Bolan, Kim. October 26, 1998. “Abortion doctors want increased security after NY physician slain. Vancouver Sun. Vancouver Sun (editorial). October 27, 1998. “Abortion doctors an abhorrent tactic.” Vancouver Sun; Bolan, Kim. October 28, 1998. “Pro-Choice group seeks investigation.” Vancouver Sun. 152. Bolan, Kim. November 19, 1994. “‘Pro-Lifers’ divided on question of violence against abortionists.” Vancouver Sun. 153. Skelton, Chad. July 13, 2000. “Ottawa says law adequate to protect abortion doctors; B.C. premier suggests Criminal Code be changed to further penalize those who attack doctors who perform abortions.” Vancouver Sun. A1-A5. 154. Show the Truth activists were charged in St. Thomas January 1999 with publicly exhibiting a disgusting object (banners with explicit pictures of aborted foetuses) (CLGRO, 1999:35). 155. Barrett, Stanley R. 1987. Is God a Racist: The Right Wing in Canada. Toronto: University of Toronto Press, 9-10. 156. In this file, the author argues that American citizens should be arresting homosexuals and that homosexuality should be criminalized in all states. The file espouses the view that homosexuals are sick and that their sexuality is deviant. “Most homosexuals, if given the opportunity, will not hesitate to solicit young boys for sex. They have no particular taboo against it.” Source: http://www.christiangallery.com/arstfags/htm 157. The Nuremburg Files can be found through the Creator’s Rights Pro-Life Christian Antiabortion Website, containing “Horrible pictures smuggled from Baby-Butcher Lab!”: http://www.ru486registry.com/atrocity/index.html 158. If this is not sensational enough one has only to turn to the section which presents graphic evidence “proving conclusively that human beings are being slaughtered through legalized abortion,”and shows pictures supposedly taken at a laboratory in Southern California “that receives the babies killed by a particular chain of abortion ‘clinics.’” The article goes on to say, “The pictures she took provide you with an overview of what legalized abortion looks like up

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close and dirty ... Each of these plastic jars contains one more little dead person.” Page after page shows small labelled plastic containers piled on top of each other in a laboratory-like room B the author calls these containers “caskets” and “the stains of evil.” A supposed actual aborted fetus is shown on an adult hand beside a coin. On the last page, a gay pride parade-like event portraying “fornicators” indulging themselves on the “Alter of self indulgence,” in front of a cheering crowd holding placards stating “Babies,” “Pollute,” “Do it” and “Abortion” suggest that society has indeed reached Babylonian heights. 159. The Canadian Oxford Dictionary. Don Mills, Ontario: Oxford University Press, 23. 160. See Bill C-204, An Act to amend the Criminal Code (hate propaganda - age group), 1st Sess., 34th Parl., 1988 (1st reading 16 December 1988); Bill C-207, An Act to amend the Criminal Code (hate propaganda B age group), 2d Sess., 34th Parl., 1989 (1st reading 7 April 1989; 2d reading 28 September 1990); Bill C-223, An Act to amend the Criminal Code (hate propaganda B age group), 3d Sess., 34th Parl., 1991 (1st reading 3 June 1991); Bill C-214, An Act to Amend the Criminal Code (hate propaganda B age group), 1st Sess., 35th Parl., 1994 (1st reading 11 February 1994; 2d reading 15 March 1994). House of Commons debates (16 December 1988) at 157 (D.Boudria); ibid. (7 April 1989) at 230; ibid. (28 September 1990) at 13597; ibid. (15 March 1994) at 2315-16. 161. Simpson notes that in contrast, free speech won out in the attempt to restrict tobacco advertising, because evidence could not be provided which made the link between advertising the product and the product’s consumption. During the same year, the U.S. Justice Department struggled with the issue of distinguishing between computer generated child pornography and real children who are victims of the child porn industry (Scherer, 2001:A14). 162 Disability: 1a) physical or mental handicap, either congenital or caused by an injury, disease, etc. b) the condition of having such a handicap; 2) the lack of some asset, quality, or attribute, that prevents one’s doing something; 3) incapacity created or recognized by the law. The Canadian Oxford Dictionary. Don Mills, Ontario: Oxford University Press, 396. 163. Ibid, 3. 164. Spare Rib, October 1982, 13. 165. The introductory paragraph in Unison, reads: ADisability touches everyone. In 1991, 4.2 million (16%) Canadians reported some level of disability. Aboriginal Canadians are particularly effected with over 30% of Aboriginal persons reporting a disability B almost double the natioinal average. All Canadians have experience with disability through their own experience, contact with relatives, colleagues or friends. Most individuals experience some form of functional incapacity or limitation as a normal part of aging. Canada 1998. In Unison: A Canadian Approach to Disability Issues. Hull: Human Resources Development Canada, 1.

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166. The terms sex and gender usefully suggests the complex interactions of biology and culture and suggests that sexuality is intricately related to gender (Rubin, 1975). Because gender is a culturally determined entity, the sex/gender system is composed of interrelated components of gender divisions, sexual divisions of labour and sexualities which vary by culture and across time. According to sociologist Gayle Rubin, the sex/gender system can be described as: The set of arrangements by which a society transforms biological sexuality into products of human activity; the process by which the penis, an organ with no inherent social character, is transformed into the phallus, an organ that symbolizes and indicates male authority, dominance, and social power; the part of social life which is the locus of the oppression of women, of sexual minorities, and of certain aspects of human personality within individuals (Rubin, 1975:159). In terms of defining sex for the purposes of legal definition, it is problematic to assume that ones categorical sex is a naturally constituted construct distinct from the trappings of culture. While sex is a biologic definition, gendered and sexed identities are formed and informed by individuals and society and therefore cannot be understood without consideration of the ways in which they are culturally differentiated and ultimately treated. Legalists conceptualize harm through the lens of gender discrimination and use this concept to conceptualize harm to men or to women based on their gender. Therefore, the term gender encompasses not just sex, but a recognition of the socially constituted nature of gender identity and the potential harms to women and men, and future research must consider the socially constituted nature of gender identity.

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