Madam Speaker, I am most pleased to speak today to Bill C-415, an act to amend the Criminal Code, which deals with hate propaganda, introduced by the hon. member for Burnaby—Douglas.
This bill would amend the definition of “identifiable group” outlined in the criminal code provisions on hate propaganda. It would add “sexual orientation” to the criteria used to establish that a group comes under the definition of “identifiable group”. By ensuring that a group is considered as an “identifiable group” under the terms of the definition, the provisions on hate propaganda would apply to this group.
For more than 30 years, the criminal code has targeted the promotion of hate. Provisions on hate propaganda were added to the criminal code to avoid the difficulties associated with using libel provisions to take legal action with respect to a group as opposed to individuals.
The provisions that were added to the criminal code in 1970 were based on the recommendations of the special committee on hate propaganda in Canada, which submitted its report in 1965 to the justice minister at the time.
This committee, chaired by Maxwell Cohen, included notable personalities, such as the future justice minister and Prime Minister, Pierre Elliott Trudeau, and another future justice minister, Mark MacGuigan. It was under Mr. Trudeau's government that these provisions were added to the criminal code.
These provisions prohibit the dissemination of hate messages targeting an identifiable group. This term is currently defined as any section of the public distinguished by colour, race, religion or ethnic origin.
What offences are created under this provision?
First, encouraging genocide or promoting genocide is considered an offence. Genocide is defined as killing of members of the group, or deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, with intent to destroy in whole or in part any identifiable group. It is interesting to note that adding sexual orientation to the criteria used to define “identifiable group” would expand the usual meaning of genocide, which normally applies to a race or a people.
The second offence mentioned in the provisions dealing with hate propaganda is communicating statements in any public place and thereby inciting hatred against any identifiable group, where such incitement is likely to lead to a breach of the peace. From the condition attached to this provision, it seems that its main purpose it to protect public peace.
The third offence is communicating statements, other than in private conversation, which wilfully promote hatred against any identifiable group. It seems that this provision is aimed at protecting members of a particular group rather than the state.
It should be noted that, apart from statements made in public or in private to advocate or promote genocide, all other offences require an element of public communication. This shows that, even before the Canadian Charter of Rights and Freedoms was adopted, legislators were careful not to interfere in cases where ideas and opinions were expressed in private by an individual.
In recent years, the Internet has been used as a means of communicating hate propaganda against identifiable groups. This is why, in the fall, the government added a provision to deal with this problem in Bill C-36, the anti-terrorism legislation.
The provision in question authorizes the court to order the deletion of hate propaganda stored on and made available to the public through a computer system within the jurisdiction of the court. This would allow for the deletion of any offensive material in cases where the person who posted it is not known or is outside the country.
Canada is now involved in negotiating a protocol on the Council of Europe's cybercrime convention signed by some 30 other countries in November 2001. Among other things, the convention would provide for international co-operation on investigations and legal proceedings regarding certain offences. The protocol would extend the benefits of the convention to offences related to hate propaganda. The question raised in Bill C-415 is whether legislative provisions dealing with hate propaganda should be extended to a group that is identifiable because of its sexual orientation.
In considering this issue, we must take into account the fact that in the Keegstra case, the Supreme Court of Canada ruled that the provisions on hate propaganda interfere with the freedom of expression guaranteed by the Canadian Charter of rights and freedoms. However, by a slim majority of 4 against 3, the supreme court confirmed the provisions as being a reasonable limit in a free and democratic society.
One of the areas examined by the supreme court was the damage caused by the promotion of hate toward identifiable groups. It stated that the damage was caused on two levels: the members of the group singled out by the hate propaganda and society as a whole. The court found indications of the damage caused to groups identified by colour, race, religion or ethnic origin and stated that the protection of identifiable groups was a pressing and important goal aimed at by the legislation.
We must ensure that any amendment made to those provisions will not bring about some imbalance between freedom of expression and protection of minorities that could jeopardize the provisions regarding hate propaganda.
Before adding to those groups, we must ensure that there is enough hate propaganda targeting the group to justify its inclusion under the protection provided by the provisions on hate propaganda.
The Minister of Justice supports this bill. I think this issue should be given careful consideration before we decide whether Bill C-415 should go forward.