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Sexual-Orientation Hate Propaganda: Time To Regroup

Published online by Cambridge University Press:  18 July 2014

Marie-France Major
Marie-France Major
Affiliation:
Faculty of Law, University of Ottawa
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Abstract

The Criminal Code contains two articles that deal specifically with hate propaganda. Articles 318 and 319 of the Code are not the result of an arbitrary measure taken by the Canadian legislator: they were enacted on the basis that it was necessary to offer protection to identifiable groups from propagators of hate. Although it is impossible to afford recourse against hate propaganda to all Canadian citizens, the present definition of identifiable groups must be expanded to include within its ambit those who are targeted because of their sexual orientation. This inclusion would signify to society at large that hate propaganda directed against gays and lesbians is unacceptable behavior and it would assure members of the homosexual community that they are full-fledged members of society. If we are to have laws to meet the concerns of special victimized groups, we must ensure that protection is given to all those who need it.

Résumé

Le Code criminel contient deux dispositions traitant de la propagande haineuse. Les articles 318 et 319 du Code ne sont pas le fruit de mesures arbitraires du législateur canadien: ils ont été adoptés afin d'assurer une protection nécessaire aux groupes identifiables contre les attaques des propagandistes. Bien qu'il soit impossible d'assurer un recours à tous les citoyens canadiens visés par la propagande haineuse, la définition actuelle de groupes identifiables doit désormais inclure, dans les portions du public à protéger, les personnes identifiables en raison de leur orientation sexuelle. Cette inclusion signifierait à la société canadienne que la haine répandue contre les gais et les lesbiennes constitue un comportement répréhensible; par ailleurs, une telle disposition rassurerait les homosexuels qu'ils sont des membres à part entière de la société canadienne. Si nous nous dotons de lois répondant aux besoins des groupes victimisés, nous devons nous assurer que tous les groupes de victimes potentielles soient protégés.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 11 , Issue 1 , Spring/printemps 1996 , pp. 221 - 240
Copyright
Copyright © Canadian Law and Society Association 1996

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References

1. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982, 1982 (U.K.), c. 11.

2. In Committee for the Commonwealth of Canada v. Canada (A.G.), [1991] 1 S.C.R. 139, Justice Lamer affirmed that section 2(b) does not guarantee a right to free expression simpliciter: it guarantees the freedom of expression. Ibid. at 156.

3. The Charter itself, in sections 1 and 33, makes clear that none of the rights guaranteed in the Charter are absolutes. Even if a court concludes that an act limits freedom of expression under section 2, the act may nonetheless continue to apply if it satisfies the standard of section 1 or has been the subject of an express legislative declaration. See, for example, Irwin Toy v. Québec (A.C.) (1989), 58 D.L.R. (4th) 577; Re: 193 and 195.1 of Criminal Code, [1990] 1 S.C.R. 1123; Rocket v. Royal College of Dental Surgeons, [1990] 1 S.C.R. 232; R. v. Butler (1992), 70 C.C.C. (3d) 129 [hereinafter Butler].

4. R. v. Keegstra (1990), 61 C.C.C. (3d) 1 [hereinafter Keegstra]. In Keegstra, the Court held that while the suppression of hate propaganda represses the participation of some individuals in the democratic process, the degree of limitation is not substantial. According to the Court, expression can work to undermine society's commitment to democracy when it is used to propagate ideas anathemic to democratic values. The Court even contended that “it is through rejecting hate propaganda that the State can best encourage the protection of values central to freedom of expression, while simultaneously demonstrating dislike for the vision forwarded by hate-mongers.” Ibid. at 50. See also Medjuk, S., “Rethinking Canadian Justice: Hate Must Not Define Democracy” (1992) 41 U.N.B.L.J. 285 Google Scholar; Cotler, I., “Racist Incitement: Giving Free Speech A Bad Name” in Schneiderman, D., ed., Freedom of Expression and the Charter (Toronto: Thomson, 1991) 249.Google Scholar For the position that an absolute right of free expression can and often does conflict with equality and meaningful democracy, see Balkin, J. M., “Some Realism About Pluralism: Legal Realist Approaches to the First Amendment” (1990) Duke L.J. 375 at 423CrossRefGoogle Scholar; Becker, M., “Conservative Free Speech and the Uneasy Case for Judicial Review” (1993) 64 U. Colorado L.Rev. 974 at 1021, 1049.Google Scholar

5. Keegstra, ibid. See also McKenna, I. B., “Canada's Hate Propaganda Laws: A Critique” (1994) 26 Ottawa L.Rev. 159 at 169–70.Google Scholar

6. Section 320 of the Code empowers judges to issue warrants for the seizure of hate propaganda material on premises that are within the jurisdiction of the court. The Canadian Human Rights Act (R.S.C. 1985, c. H.6), also provides protection against hate messages. Section 13(1) provides that it is a discriminatory practice to communicate telephonically repeatedly “any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.” For a discussion of the application of section 13(1), see Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892.

7. Article 318(1) states that “every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.” Paragraph 2 of the same article defines “genocide” as “any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely. (a) killing members of the group; or (b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.”

8. The definition of “identifiable group” is found in subsection (4) of article 318.

9. In Keegstra, supra note 4 at 59, the Court emphasized that the term “hatred” has a very specific meaning: it “connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation.” Hatred is “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”. Ibid. at 59–60.

10. Subsection (3) of article 319 states that: “No person shall be convicted of an offence under subsection (2)[:] (a) if he establishes that the statements communicated were true; (b) if, in good faith, he expressed or attempted to establish by argument an opinion upon 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; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.”

11. See Canada, Report of the Minister of Justice of the Special Committee on Hate Propaganda in Canada (Ottawa: Queen's Printer, 1966) (Cohen Committee Report) at 28–30.Google Scholar In its recommendation that legislation be enacted in Canada to control hate propaganda, the Committee was influenced by the opinion that “given the right technique and circumstances, human beings can be persuaded to believe almost anything,” and by its analysis of the effects of hate propaganda on vilified groups. For a discussion and analysis of the Committee's report, see Tarnopolsky, W. S., “Freedom of Expression v. Right to Equal Treatment” (1967) 43 U.B.C.L. Rev. 44 Google Scholar; Brewin, A., “Book Review of The Report of the Special Committee on Hate Propaganda in Canada ” (1967) 17 U.T.L.J. 235 CrossRefGoogle Scholar; Hage, R. E., “The Hate Propaganda Amendment to the Criminal Code” (1970) 28 U.T. Fac. L. Rev. 63 Google Scholar; Mewett, A. W., “Some Reflections on the Report of the Special Committee on Hate Propaganda” (1966–1967) 9 Crim. L.Q. 16 Google Scholar; MacGuigan, M. R., “Proposed Anti-Hate Legislation: Bill S–5 and the Cohen Report” (1967) 15 Chitty's L.J. 302 Google Scholar; Plaut, W. G., “Book Review of The Report of the Special Committee on Hate Propaganda in Canada ” (1967) 5 Osgoode Hall L.J. 313 Google Scholar; Starr, D., “Hate Literature in Canada” 39 Man. Bar N. 16.Google Scholar

12. House of Commons Debates, 1970, Vol. VI, 2nd Session, 28th Parl, at 5557.

13. Subsection (7) of article 319 stipulates that “identifiable group” has the same meaning as in section 318.

14. Supra note 4. In Keegstra, the Court countered arguments of overbreadth and vagueness by arguing that the term “identifiable group,” within article 318, was clearly defined. It emphasized that the act to be targeted by article 319(2) was the intentional fostering of hatred against particular members of Canadian society, as opposed to any individual. Ibid. at 58–59. The conclusion of the Court as regards the possible overbreadth and vagueness of section 319(2) of the Criminal Code was that the section “possesses definitional limits which act as safeguards to ensure that it will capture only expressive activity which is openly hostile to Parliament's objective, and will thus attack only the harms at which the prohibition is targeted.” Ibid. at 60.

15. R. v.Zunedel (1992), 75 C.C.C. (3d) 449 [hereinafater Zundel]. In Zundel, the Court examined the constitutional validity of section 181 of the Criminal Code. The Court struck down the section as an infringement of section 2(b) of the Charter. It held that the section could not be saved by section 1 of the Charter. In the majority decision, Justice McLachlin identified the main defect in section 181 as being overbreadth. Section 181 stipulated that: “Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.”

16. When the judgments of the Supreme Court in Keegstra and Zundel are examined, it becomes evident that one reason section 319(2) of the Criminal Code was upheld, while section 181 was declared unconstitutional, is that the Court was favorably impressed by the narrow drafting of section 319(2). See Zundel, ibid., at 522–25.

17. See, generally, Faulkner, E., “Lesbian Abuse: The Social and Legal Realities” (1991) 16 Queen's L.J. 261 Google Scholar; Peterson, C., “A Queer Response to Bashing: Legislating Against Hate” (1991) 16 Queen's L.J. 237.Google Scholar

18. See Brief to the members of the Ontario Legislation from the Coalition for Gay Rights in Ontario, Discrimination Against Lesbians and Gay Men: The Ontario Human Rights Omission (1986) at 10.Google Scholar See also Sandler, M., “Hate Crimes and Hate Group Activity in Canada” (1994) 43 U.N.B.L.J. 269.Google Scholar

19. For the position that regulation of hateful speech sends the message to society at large that traditional or long-standing patterns of relations that are characterized by subordination and repression must be altered, see Note, “The Power of Words: The Power of Advocacy Challenging the Power of Hate Speech” (1992) 51 U. Pitts. L.Rev. 955 at 978.

20. As Matsuda, M. J., “Public Response to Racist Speech: Considering the Victim's Story” (1989) 87 Mich. L.Rev. 2320 at 2338CrossRefGoogle Scholar, argues: “a legal response to [hateful] speech is a statement that victims are valued members of our polity.” Justice L'Heureux-Dubé in Egan v. Canada (1995), 124 D.L.R. (4th) 609 at para. 89 [hereinafter Egan], also recognized that exclusion from the ambit of the law sends the message that society considers those excluded “less worthy of respect, concern and consideration.”

21. See also Karst, K. L., “The Supreme Court, 1976 Term-Forward: Equal Citizenship Under the Fourteenth Amendment” (1977) 91 Harv. L.Rev. 1 at 4CrossRefGoogle Scholar, for the position that equal citizenship implies the right “to be treated by the organised society as a respected, responsible, and participating member.” According to Karst, the principle of equal citizenship is presumptively violated “when the organised society treats someone as an inferior, as part of a dependent caste, or as a nonparticipant. The chief citizenship value is respect; the chief harm against which the principle guards is degradation or the imposition of stigma.” See Karst, K. L., “Why Equality Matters” (1983) 17 Georgia L.Rev. 245 at 248.Google Scholar He maintains that the goal of equal citizenship must be pursued by society since it speaks to the highest ends of a democratic society: development of individual autonomy, dignity and self-respect. Because equal citizenship is a fundamental value, any obstacles that exist to the attainment of inclusion within society must be set aside. Government must affirmatively be required to disestablish societal practices that treat people as members of an inferior or dependant caste, or as unworthy to participate in the larger community. See Karst, K. L., “Citizenship, Race and Marginality” (1988) 30 Wm. & Mary L.Rev. 1.Google Scholar

22. Bill C– 429, 3d Sess., 34th Parl., 1993.

23. Bill C–204 (1988) and Bill C–207 (1989) sought to add age as a defining characteristic. Bill C–326, (1990) proposed the addition of sex and sexual orientation to the definition found within the Criminal Code. See Bill C–204, An Act to Amend the Criminal Code (hate propaganda), 1st Sess., 34th Parliament, 1988; Bill C–207, An Act to Amend the Criminal Code (hate propaganda), 2nd Sess., 34th Parliament, 1989; Bill C–326, An Act to Amend the Criminal Code (hate propaganda), 2nd Sess., 34th Parliament, 1990.

24. In Haig v. Canada (Minister of Justice) (1992), 9 O.R. (3d) 495 at 503, the Court acknowledged that homosexuals have had to endure pain and humiliation by reason of prejudices. In Veysey v. Canada (Correctional Service) (1989), 44 C.R.R. 364, (1990) affd 109 N.R. 300 at 317 [hereinafter Veysey], the Court also recognized the existence of a historical pattern of discrimination against homosexuals and lesbians: “Another characteristic common to the enumerated grounds is that the individuals or groups involved have been victimized and stigmatized throughout history because of prejudice, mostly based on fear or ignorance, as most prejudices are. This characteristic would also clearly apply to sexual orientation or, more precisely, to those who have deviated from accepted sexual norms, at least in the eyes of the majority.”

25. As the Court in High Tech Gays v. Defence Industrial Clearance Office, 668 F. Supp. 1361 (N.D. Cal. 1987) at 1369 recognized: “lesbians and gay men have been the object of some of the deepest prejudice and hatred in American society … hatred so deep that many gay people face the threat of physical violence on American streets today.” See also Coultas J. in Brown v. British Columbia (1990), 66 D.L.R. (4th) 444 at 457 who suggests that discrimination against lesbians and gay men has become more severe since the AIDS epidemic. See also Comstock, G. D., Violence Against Lesbians and Gay Men (New York: Columbia University Press, 1991)Google Scholar; Herek, G. M. & Berrill, K. T., eds., Hate Crimes: Confronting Violence Against Lesbians and Gay Men (California: Sage, 1992)Google Scholar; Sanders, D., “Constructing Lesbian and Gay Rights” (1994) 9:2 C.J.L.S. 99 at 104–06.CrossRefGoogle Scholar

26. See Herek, G., “Religious Orientation and Prejudice: A Comparison of Racial and Sexual Attitudes” (1987) 13 Personality and Social Psychology Bull. 34 CrossRefGoogle Scholar; Herek, G., “Hate Crimes Against Lesbians and Gay Men: Issues for Research and Policy” (1989) 44 Amer. Psychologist 948 CrossRefGoogle ScholarPubMed; Meron, G. B., “Public Policy and Private Prejudice: Psychology and Law on Gay Rights” (1989) American Psychologist 933.Google Scholar According to Gates, H. L., “Blacklash” New Yorker (17 May 1993) 42 Google Scholar, “in many ways contemporary homophobia is more virulent than contemporary racism.”

27. A better definition would be one that would be concordant with article 15 of the Charter which states that: “[e]very 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.” For discussion of the expansion of the definition to include the enumerated grounds of article 15, see Law Reform Commission of Canada, Hate Propaganda, Working Paper 50 ( (Ottawa: Law Reform Commission of Canada, 1986) at 32 Google Scholar; Law Reform Commission of Canada, Report: Recodifying Our Criminal Law: Report no. 31 (Ottawa: Law Reform Commission of Canada, 1987)Google Scholar clause 1(2). For a contrary position, see Ryan, H. R. S., “The Trial of Zundel, Freedom of Expression and the Criminal Law” (1985) 44 C.R. (3d) 334 at 350.Google Scholar

28. Abrams, F., “Hate Speech: The Present Implications of a Historical Perspective” (1992) 37 Villanova L.Rev. 743 at 751Google Scholar, defines the slippery slope argument as “belief that once you start down the path of regulation, inevitably the initial precedent will be used to expand the scope of regulated subject matter.” As Peter Linzer, in the American context, has argued: “we can say that racist speech is bad, per se, but ‘racist’ quickly becomes ‘racist/sexist/ethnic/anti-gay/anti-disabled’ if not more.” Linzer, See P., “White Liberal Looks at Racist Speech” (1991) St. John's L.Rev. 187 at 235.Google Scholar

29. For a discussion of the problems involved, see Wolfson, N., “Free Speech Theory and Hateful Words” (1991) 60 Cin. L.Rev. 1 at 33–37.Google Scholar

30. Andrews v. Law Society of B.C. (1989), 56 D.L.R. (4th) 1 at 33 [hereinafter Andrews]. Thus, as times change, so too can the list of protected characteristics.

31. In Andrews, ibid, at 18, Justice Mclntyre defined discrimination, for the purposes of Charter interpretation, in the following manner: “I would say then that discrimination may be described as a distinction whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.”

32. In 1990, the American National Institute Against Prejudice and Violence confirmed that prejudice and violence in society now extend to groups and individuals that are defined by age, disability, ethnicity, gender, national origin, physical condition, political belief, religion or sexual orientation. The Institute noted that the above groups are typically victims of group violence. See National Institute Against Prejudice & Violence “ Group Violence in the U.S.A. ” Forum, vol. 5 (Jan.-Feb. 1990) at 5.Google Scholar

33. Numerous debates surround the issue of sexual orientation: while some maintain that homosexuals and lesbians choose their lifestyles, others argue that the issue of sexual orientation is a matter of biology. Thus, the question of whether homosexual orientation is a matter of choice, whether it is socially constructed or biologically determined, remains. The immutability argument is often advanced by the gay community itself because of the perception that it can lead to legal advances. See for example Vance, C. S., “Social Constructionism Theory: Problems in the History of Sexuality” in Crowly, H. & Himmelweit, S., eds., Knowing Women: Feminism and Knowledge (Cambridge: Polity Press, 1992) 132 at 134.Google Scholar It is for this reason that the argument is advanced here. In Veysey, supra, note 24, the Federal Court Trial Division, in holding that sexual orientation satisfied the test of “analogous grounds,” relied in part upon the fact that sexual orientation was found sufficiently immutable to constitute a characteristic analogous to the enumerated bases of discrimination. See also the judgment of Justice L'Heureux-Dubé in Egan, supra note 20 at para. 89. For a discussion of the issue of “immutability” within the context of sexual orientation, see Stychin, C., “A Postmodern Constitutionalism: Equality Rights, Identity Politics, and the Canadian National Imagination” (1991) 17 Dalhousie L.J. 61 Google Scholar; Halley, J., “Reasoning About Sodomy: Act and Identity In and After Bowers v. Hardwick ” (1993) 79 Va. L.Rev. 1721 CrossRefGoogle Scholar; Halley, J., “Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability” (1993) 46 Stan. L.Rev. 503 CrossRefGoogle Scholar; Jefferson, J., “Gay Rights and the Charter ” (1985) 43 U. T. Fac. L.Rev. 70 Google Scholar; Ortiz, D. R., “Creating Controversy: Essentialism and Constructivism and the Politics of Gay Identity” (1993) 79 Va. L.Rev. 1833 CrossRefGoogle Scholar; Sanders, supra note 25 at 109–11; Epstein, S., “Gay Politics, Ethnic Identity: The Limits of Social Constructionism” in Stein, E., ed., Forms of Desire: Sexual Orientation and the Social Constructionist Controversy (New York: Routledge, 1992)239.Google Scholar

34. See, however, Post, R., “Free Speech and Religious, Racial and Sexual Harassment: Racist Speech, Democracy, and the First Amendment” (1991) 32 Wm. & Mary L.Rev. 267 at 295Google Scholar, who argues that a distinction can be made between religion and race-religion is a matter of individual choice, while one's race is imposed by birth. See also McGowan, D. F. & Tangri, R. K., “A Libertarian Critique of University Restrictions of Offensive Speech” (1991) 79 Cal. L. Rev. 825 at 866CrossRefGoogle Scholar: “[T]hat an individual is unable to change a given characteristic does not compel the conclusion that derogatory references to that characteristic are necessarily dehumanizing, and it is a further jump to conclude that such references are invariably sufficiently dehumanizing to warrant the suppression of speech.”

35. See Note, “A Communitarian Defense of Group Libel Laws” (1988) 101 Harv. L.Rev. 682 at 693.

36. Ibid.

37. Ibid.

38. Fiss, As O. in “Groups and the Equal Protection Clause” (1976) 5 Phil. & Pub. Aff. 107 at 148Google Scholar argues: “[B]lacks [in the United States] are viewed as a group; they view themselves as a group; their social status is linked to the status of the group; and much of our action, institutional and personal, is based on these perspectives.” See also Wintemute, R., Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter (Oxford: Clarendon, 1995).Google Scholar

39. For the position that “restricting narrow subcategories of abhorrent speech while leaving other subcategories of abhorrent speech protected treats unjustly the victims of the latter forms of speech,” see Harel, A., “Bigotry, Pornography, and the First Amendment” (1992) 65 S.Cal. L.Rev. 1887 at 1906.Google Scholar

40. For a discussion of the issue of under-inclusive laws in the United States, see the decision of Justice Scalia in R.A.V. v. St. Paul, 505 U.S. 377 (1992).

41. As Harel, supra note 39 at 1904, argues: “[T]he victims of the protected speech feel even more victimized than they would if all forms of abhorrent speech were protected.”

42. Failure to regulate hate propaganda can also be viewed as governmental endorsement of the content of the speech. As Harel, Ibid. at 1904 argues: “[l]n liberal society not every protection of speech is interpreted as approval of the content of the speech, but it does not follow that no instance of protection is interpreted this way.” For the position that toleration and protection of hateful utterances constitute state action in support of those utterances, see Matsuda, supra note 20 at 2378 and Balkin, supra note 4 at 381: “To the degree that the state protects the free speech rights of racists, the state affirms that the rights of minorities to be free from certain forms of racial oppression do not count.” See also Wright, R. G., “Racist Speech and the First Amendment” (1988) 9 Miss. C. L.Rev. 1 at 28Google Scholar, for the position that toleration of hateful speech indicates indifference and insensitivity to nondominant groups. In his view, when government fails to intervene it demonstrates that all its citizens are not equal in the true sense, that is, that not all people deserve respect and toleration. It sends the signal that some members of society can be abandoned and left to fend by themselves. Whatever harms they may suffer, they should have no expectations that the state will seek to help them.

43. In Keegstra, supra note 4, the Supreme Court recognized that hate propaganda in Canada causes sufficient harm to justify legislative intervention. Of particular importance is the harm done to members of the target group. Persons belonging to a racial or religious group under attack are humiliated and degraded for “a person's sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded to groups to which he or she belongs.” Ibid. at 36. Thus, the hostility and abuse encouraged by hate propaganda has a negative impact on the individual's sense of self-worth and acceptance. This impact may cause target group members to take extreme measures in reaction. For instance, they may seek to avoid activities that bring them into contact with other members of society. See also Attis v. Bd. of Education, Dist. No. 15 (1991), 121 N.B.R. (2d) 1; Coliver, S., ed., Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination (London: Article XIX, 1992) at 156, 160–69, 200, 204, 209, 262, 290–94.Google Scholar

44. In Keegstra, ibid., at 37, the Court held that “the active dissemination of hate propaganda can attract individuals to its cause, and in the process create serious discord between various cultural groups in society.” Moreover, because the alteration of views held by the recipients of hate propaganda may occur subtly, it is not always attendant upon conscious acceptance of the communicated ideas. Therefore, even if the message of hate propaganda is outwardly rejected, its premise may persist in a recipient's mind as an idea that holds some truth. This, according to the Court, is an incipient effect not to be entirely discounted. As the Court notes, “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.” See also Coli ver, ed., ibid. at 156, 245, 287 and 290.

45. As Cass Sunstein argues, while a list of protected characteristics can be attacked as underinclusive, a distinction must be made between underinclusiveness that is brought about by self-interested decision-making and underinclusiveness that is not a product of this process. See Sunstein, C., “Pornography and the First Amendment” (1986) Duke L.J. 589 at 613–17.CrossRefGoogle Scholar See also Hernandez, T. K., “Bias Crimes: Unconscious Racism in the Prosecution of Racially Motivated Violence” (1990) 99 Yale L.J. 845 at 853CrossRefGoogle Scholar, who explains that in a society, what often happens is that “because people of color and gay people are marginalized groups in society,… the victimization of members of such marginalized groups is not accorded the same level of gravity as the victimization of others.”

46. The bill was introduced by Justice Minister Rock in June 1994 and was adopted by Parliament in June 1995. See “Rock to Beef Up Hate-Crimes Law” The [Toronto] Globe and Mail (11 June 1994) 4.

47. Section 718.2 of the proposed bill provides that a court that imposes a sentence shall take into account both aggravating and mitigating circumstances. In connection with aggravating circumstances, the court must consider evidence that the offence was motivated by bias, prejudice or hate based on the enumerated characteristics. The proposed section only comes into play after it has been found by the court that a crime has been committed: it is only relevant to the sentencing portion of the hearing. The onus will be on the Crown to establish beyond a reasonable doubt that the accused was motivated by prejudice, hate or bias based on one of the enumerated grounds.

48. During discussions surrounding the adoption of the bill, Justice Minister Rock remarked: “Before touching upon the key elements of the bill, may 1 observe that in the months since its introduction in June this year, both public and parliamentary discussion of the bill has focussed on two words that appear in one subsection among 63 pages of text. Those words, of course, are ‘sexual orientation’;.” House of Commons, “Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs,” 1st Session of the 35th Parliament, (17 Nov. 1994) at 62:66.

49. See, for example, statement of Forseth, Ibid. at 62:18; statement of Mme Pierrette Venne in House of Commons, Debates (15 March 1994) at 2317–18; Greenspan, E. & Ha, T. Thanh, “Dissident Liberals Balk Over Hate Bill,” The [Toronto] Globe and Mail (27 October 1997) A–1.Google Scholar

50. Despite the fact that several Canadian jurisdictions (Quebec, Manitoba, New Brunswick, Nova Scotia, Ontario, and the Yukon) statutorily acknowledge sexual orientation as a prohibited form of discrimination, controversy has also followed governmental announcement, in 1992, that “sexual orientation” become a prohibited ground of discrimination under the Canadian Human Rights Act, Bill C–108, 3d Sess., 34th Parl., 1992. The government waited until 1996 to fulfill its promise.

51. Unfortunately, one feeling is that legislation which seeks to protect minorities accords them special protection. Legislation such as section 718.2 is attacked because it is perceived as segregating parts of the population for special treatment. When legislation is perceived as affording special rights, then it becomes easier to maintain that the legislation must have a limited scope. For a discussion of the impact of the “special right” argument, see Marcosson, S. A., “The ‘Special Rights’ Canard in the Debate Over Lesbian and Gay Civil Rights” (1995) 9 N.D.J.L. Ethics & Pub. Pol'y 137 Google Scholar; Schacter, J. S., “The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents” (1994) 29 Harv. C.R.-C.L. L.Rev. 283.Google Scholar

52. Many states have enacted statutes imposing heightened penalties for people convicted of committing certain crimes motivated by prejudice. Some states have also adopted legislation that specifies that an offence committed with the bias motive is one degree higher than the underlying offense committed without the bias motive.

53. 124 L. Ed. 439 (1993) [hereinafter Mitchell]. In Mitchell, the defendant was a 19–year-old black man who was convicted of aggravated battery for his role in the beating of a 14–year-old white male. Under Wisconsin law, this crime carried a maximum sentence of two years. Wisconsin's penalty enhancement law, however, provided that the potential penalty for a racially motivated aggravated battery was seven years. In addition to his conviction for battery, Mitchell was found to have acted out of racial bias in the selection of the victim. He was thus sentenced to four years incarceration.

54. See, for example, Walker, S., Hate Speech: The History of an American Controversy (Lincoln: University of Nebraska Press, 1994) at 36.Google Scholar For a discussion of the use of bias-crime penalty enhancement statutes when women are singled out, see Angelari, M., “Hate Crime Statutes: A Promising Tool for Fighting Violence Against Women” (1990) 2 Am. U.J. Gender & L. 63.Google Scholar

55. Cal. Penal Code §§ 422.6, 422.7, 422.75 (West 1988 & Supp. 1994), §1170.75 (West 1985 & Supp. 1994).

56. Conn. Gen. Stat. Ann. § 53a–181 b (West Supp. 1994).

57. Iowa Code Ann. § 729A.2 (West 1993).

58. Minn. Stat. Ann. §609.595, Subds. la, 2(b); & 609.2231, Subd. 4 (West Supp. 1994).

59. Nev. Rev. Stat. Ann. § 207.185 (Michie Supp. 1993).

60. N.H. Rev. Stat. Ann. § 651:6(g) (1993).

61. Or. Rev. Stat. §§ 166.155, 165 (1990).

62. Vt. Stat. Ann. tit. 13, § 1455 (Supp. 1994).

63. Wis. Stat. Ann. § 939.645 (West Supp. 1993). See also D.C. Code Ann. & 22–4003 (Supp. 1994); Fla. Stat. Ann. § 775.085 (West 1992); HI. Ann. Stat. eh. 720, § 5/12–7.1 (Smith-Hurd Supp. 1994); 111. Ann. Stat. eh. 730, § 5/5–5–3.2(10) (Smith-Hurd Supp. 1994); N.J. Stat. Ann. §§ 2C:12–lc, :33–4d, :44–3e, :43–7a(5) (West Supp. 1994); R.I. Gen. Laws § 11–5–13 (1994); Wash. Rev. Code Ann. § 9A.36.080 (West Supp. 1994).

64. Proposed bills in several states were defeated by legislators who were opposed to the inclusion of the victim's “sexual orientation” as a ground of hate-motivated violence. In Connecticut, Iowa and New Jersey, the inclusion of “sexual orientation” within the scope of hate crime laws became a point of contention. See Editora, Harvard Law Review, Sexual Orientation and the Law (Cambridge: Harvard University Press, 1990) at 167 Google Scholar; C. Peterson, supra note 17 at 242–43. Examples of states that exclude sexual orientation in their hate crime statutes can be found in Colo. Rev. Stat. § 18–9–121 (West 1990); Idaho Code § 18–7902 (1987); Md. Ann. Code art. 27, § 470A (Supp. 1994); Mass. Gen. Laws Ann. ch. 265, §39 (Law Co-op 1992); Mich. Comp. Laws Ann. § 750.14b (West 1991); Mo. Ann. Stat. §§ 574.090–093 (Vernon Supp. 1994); Mont. Code Ann. §§ 45–5–221,–222 (1993); N.Y. Penal Law § 240.30 (McKinney Supp. 1993); N.C. Gen. Stat. §§ 14–3, 14–401.14 (1993); N.D. Cen. Code §§12.1–14–04, –05 (1985); Ohio Rev. Code Ann. § 2927.12 (Anderson 1993); Okla. Stat. Ann. tit. 21, § 850 (West Supp. 1995); 18 Pa. Cons. Stat. Ann. § 2710 (1983); R.I. Gen. Laws § 11–42–3 (1994); S.D. Cod. Laws Ann. & 22–19B–1 (Supp. 1994); W. Va. Code §61–6–21 (1992).

65. Hate Crimes Statistics Act, Pub. L. No. 101–275, 104 Stat. 140 (1990). A number of states have also enacted legislation mandating the collection of hate crimes statistics. See Hate Crime Statutes: A 1991 Status Report, ADL Law Report, Anti-Defamation League, App. b (1991). State statutes differ widely as regard to the types of recognized bias. For example, Oregon's statute requires the reporting of hate crimes that are “motivated by prejudice based on the perceived race, color, religion, national origin, sexual orientation, marital status, political affiliation or beliefs, membership or activity in or on behalf of a labor organisation or against a labor organisation, physical or mental handicap, age, economic or social status, or citizenship of the victim” (Or. Rev. Stat. §181.550(1) (1989).

66. For a discussion of the act, see Recent Development, “Bringing Hate Crime into Focus” (1991) 26 Harv. Civ. Rights-Civ. Lib. L.Rev. 261 Google Scholar; Jacobs, J. B. & Eisler, B., “The Hate Crime Statistics Act of 1990” (1993) Crim. L. Bull. 1.Google Scholar The problems surrounding the adoption of the act are demonstrated by the position taken by senator Jesse Helms who argued that: “(1) the homosexual movement threatens the strength and survival of the American family as the basic unit of society; (2) state laws prohibiting sodomy should be enforced; (3) the federal government should not provide discrimination protections on the basis of ‘sexual orientation’; and (4) school curricula should not condone homosexuality as an acceptable lifestyle in American society.” See Task Force Report, “Hate Crime Bill Passes Senate: Anti-Gay Helms Amendment Defeated” (Winter/Spring 1990) at 1.

67. Voters in Ohio, Maine, New Hampshire and Oregon have recently voted to reject rights for homosexuals. In Colorado, Amendment Two surfaced as part of a voter initiative. Amendment Two sought not only to repeal existing state laws that protect gay people from discrimination, but also sought to ban all future laws that would recognize such claims by lesbians and gay men. This Amendment was successful at the voting booth but the Colorado Supreme Court has upheld a permanent injunction barring enforcement of the initiative. See Evans v. Romer, 854 P. 2d 1270 (Colo. 1993). For a discussion of these issues, see Note, “Constitutional Limits on Anti-Gay-Rights Initiatives” (1993) 106 Harv. L.Rev. 1905; R. F. Duncan & G. L. Young, “Homosexual Rights and Citizen Initiatives: Is Constitutionalism Unconstitutional?” (1995) 9 N.D.J.L. Ethics & Pub. Pol'y 93.

68. Under section 15 of the Charter, equality rights are guaranteed to individuals who are identified on the basis of colour, race, ethnic or national origin, religion, sex, age, or mental or physical disability. The nine recognized categories are extendable to include “analogous” minorities. An analogy can be drawn between the enumerated ground and the enumerated basis in terms of the social or historical disadvantage due to discriminatory treatment which has been suffered by individuals because of membership in the group. The question of whether a group qualifies as analogous depends upon “the context of the place of the group in the entire social, political and legal fabric of our society.” See Andrews, supra note 30 at 32. Lobbying efforts to include “sexual orientation” as an enumerated ground in section 15 of the Charter were unsuccessful. Bruner, See A., “Sexual Orientation and Equality Rights” in Bayefsky, A. F. & Eberts, M., eds., Equality Rights and the Canadian Charier of Rights and Freedoms (Toronto: Carswell, 1985) 457 at 464.Google Scholar However, courts and Attorney-Generals have often conceded that sexual orientation could be read into the general open-ended language of section 15 of the Charter as a constitutionally prohibited ground of discrimination. The Supreme Court in Egan, supra note 20, endorsed the view that sexual orientation constitutes an analogous ground of discrimination.

69. Schachter v. Canada, [1992] 2 S.C.R. 679.

70. Ibid. at 705.

71. Ibid.

72. For a discussion of the advantages and disadvantages of using these criteria within the context of equality claims, see Eaton, M., “Lesbians, Gays and the Struggle for Equality Rights: Reversing the Progressive Hypothesis” (1994) 17 Dalhousie L.J. 130 at 178–86.Google Scholar

73. See, however, Massaro, T., “Equality and Freedom of Expression: The Hate Speech Dilemma” (1991) 32 Wm. & Mary L.Rev. 211 Google Scholar, who argues, at 244, that when the list of protected groups is expanded, then it becomes more difficult to convince the defenders of free speech that regulations should be adopted.

74. As Catharine MacKinnon has stated in the context of pornography: “that pornography chills women's expression is difficult to demonstrate empirically because silence is not eloquent. Yet on no more of the same kind of evidence, the argument that suppressing pornography might chill legitimate speech has supported its protection.” See MacKinnon, C., “Not A Moral Issue” (1984) 2 Yale L. & Pol'y Rev. 321 at 237.Google Scholar See also Lawrence, C., “If He Hollers Let Him Go: Regulating Racist Speech on Campus” (1990) Duke L.J. 431 at 468CrossRefGoogle Scholar, arguing that racist speech “decreases the total amount of speech that enters the market by coercively silencing members of those groups who are its targets.”

75. In Keegstra, supra note 4, and in Butler, supra note 3, the Supreme Court emphasized that not all expression and activity is equally crucial to the principles at the core of section 2(b) of the Charter. Thus, restrictions on expression which are only tenuously connected to the values underlying section 2(b) may be easier to justify than other infringements.

76. As Gale, M. E., “Reimagining the First Amendment” (1991) 65 St. John's L.Rev. 119 at 160Google Scholar, argues: “[I]f narrow restrictions of the directly repressive speech of dominant groups or individuals will encourage the controversial speech of dissident groups and individuals, the purpose of … [free speech] may be better served by such restrictions.”

77. By remaining closeted, this community is denied effective political participation. See Halley, J., “The Politics of the Closet: Towards Equal Protection for Gay, Lesbian and Bisexual Identity” (1989) 36 UCLA L.Rev. 915.Google Scholar

78. See Lawrence, C., “Crossburning and the Sound of Silence” (1992) 37 Villanova L.Rev. 787 at 803.Google Scholar

79. Lasson, K., “Racial Defamation as Free Speech: Abusing the First Amendment” (1985) 17 Colum. L.Rev. 11 at 20.Google Scholar

80. For a discussion of the argument that underinclusive legislation has the symbolic effect of validating or legitimizing that which is not regulated, see Freeman, A. D., “Legitimizing Racial Discrimination Through Anti-Discrimination Law: A Critical Review of Supreme Court Doctrine” (1978) 62 Minn. L.Rev. 1049 at 1053.Google Scholar Freeman argues that American anti-discrimination law looks at the perspective of the perpetrator. It focusses on the unlawful action of the perpetrator rather than on the social conditions caused by discrimination. His contention is that this perspective places discriminatory conduct not covered under legislation beyond the law (ibid. at 1056).

81. In a similar fashion, Hernandez, while examining the scope of coverage of bias crimes statutes, advances that “the statutory omission of many discrete groups whose members are likely to be victims of bias crimes translates into state acquiescence toward bias crimes against those groups' members, which in turn undermines the deterrence value of the statute for all bias crime groups.” Hernandez, supra note 45 at 851. See also Kretzmer, D., “Freedom of Speech and Racism” (1987) 8 Cardozo L.Rev. 445 at 488–89Google Scholar; Schauer, F., “The Sociology of the Hate Speech Debate” (1992) 37 Villanova L.Rev. 805.Google Scholar

82. In Keegstra, supra note 4, the Court clearly stated that legislation demonstrates the distaste of the public for hate propagandists and their message and that criminal sanctions confirm society's perception that minority groups are both in need of and deserving of protection against the harm caused by such messages.