Racist rants are going viral, but they aren’t illegal. A Vancouver lawyer says they should be

The Toronto Star with Sabreena Ghaffar-Siddiqui 30 October 2019


Yet another racist rant has gone viral — and experts say the “domino effect” of hate we’re seeing won’t stop unless Canada makes some big changes to its laws.

Earlier this week, a woman was recorded berating a cashier at a Shoppers Drug Mart in Burnaby, saying such things as, “Speak English in Canada,” in a raised voice. It’s the latest high-profile incident of public racism in Metro Vancouver in recent months.

After a video posted to social media this summer showed a woman hurling profanities and anti-Asian slurs in a parking lot in Richmond, B.C., there were calls for police to act.

But that incident did not result in any criminal charges and, after watching the latest video, Kyla Lee, a criminal defence lawyer with Acumen Law, says she’d be surprised if police recommended any charges this time.

That’s because being racist isn’t a crime in Canada.

“It’s not illegal to be a racist, unfortunately,” said Lee.

Lee contends that Canada’s Criminal Code should prohibit public expressions of racism outright.

“I’d like to see our Criminal Code reflect our societal values,” she said. “It’s supposed to be a compass for what we want governing our society and what we consider morally acceptable or morally reprehensible.”

Expressions of racism that happen between two individuals — in the form of a racial slur, for instance — are not considered a crime.

If it’s shown that a crime, such as an assault, was racially motivated, a judge can take that into consideration during sentencing.

But not taking direct legal action against the people who are caught hurling racist remarks in public can embolden more people to act in racist ways, said Lee.

“The more you have these incidents publicized and the more people see police not getting involved, they know they can continue doing it without being punished.”

Sabreena Ghaffar-Siddiqui, a researcher specializing in hate crimes and racism at McMaster University, calls this a “domino effect” of racist sentiments expressed publicly.

She said it is important to condemn and try to stop these public incidents because one expression of hate can easily lead to more.

“People don’t wake up and become racist — they have been racist all along,” said Ghaffar-Siddiqui.

“But when there is something legitimizing that view, it gives people the green light to do the same thing people, and eventually some people express that more explicitly through pure, explicit hate and hate crimes.”

Lee knows that making expressions of racism against the law isn’t a simple proposition.

Exactly what is considered a racial slur and what is simply distasteful would need to be sorted out in court. Also, any such law would limit people’s freedom of expression. But the federal government could argue in court that such a law is necessary in a “free and democratic society,” Lee said.

“Every right in Canada is not without limits. I think finding the appropriate balance is something that needs to be done and something that we’ve woefully dropped the ball on.”

Singling out racist expressions is something lawmakers in other countries have done. For instance, in Germany and other European countries, it is illegal to deny or minimize the Holocaust.

Ghaffar-Siddiqui said when this type of speech is not met with consequences, it encourages others with the same views to incite hatred, sometimes in more explicit ways.

U.S. President Donald Trump is one prominent example of someone legitimizing racist views, suggested Ghaffar-Siddiqui, because he “isn’t being held accountable” for his discriminatory views against minorities.

According to Statistics Canada, a total of 255 hate crimes were reported to police in B.C. in 2017 — an increase of 55 per cent compared to just two years earlier.

But codifying racism in criminal law is not necessarily the answer to stemming the rising tide of racism, Ghaffar-Siddiqui said.

She said Canada could learn from the U.K., where the Equality and Human Rights Commission, a government body, has multiple offices to help people who believe they have been discriminated against to learn about their rights, file reports and find solutions. She said there should be more structures like that in Canada, which could also work with community groups to better respond to incidents of hate and encourage people to report them.

According to Gareth Blount, an RCMP constable with the B.C. anti-hate-crimes team, there are two types of charges under the Criminal Code for hate-motivated crime: advocating for genocide, or inciting hate, such as when hate speech is disseminated online or to a large crowd.

While investigations don’t always result in charges, Blount said the B.C. anti-hate-crimes team will often try to have a conversation with the perpetrator to explain why their behaviour is harmful.

“There are certainly times where an offence isn’t a criminal offence, but it certainly is racist and hurts the victim.”

Racism and the law — an explainer

What is racism?

It’s hardly something that can be encapsulated in a couple of sentences. Merriam-Webster defines racism as “a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race.” It can also be “a political or social system founded on racism,” or more simply, “racial prejudice or discrimination.” In other words, racism is the belief that certain people are inferior to others due to the colour of their skin.

Is it illegal?

Canada’s Charter of Rights and Freedoms states it is illegal to discriminate against someone because of the colour of their skin, and human rights tribunals in Canada often order workplaces that discriminate on the basis of race to pay damages.

However, racism is not in the Criminal Code. Thinking racist thoughts is not illegal. Saying racist things is also not illegal. You can yell racial slurs at someone and you won’t be charged with racism.

OK, so racism is not in the Criminal Code. But what is a hate crime, then?

There are types of charges under the Criminal Code of Canada for crimes that are motivated by hatred toward an identifiable group, or where hate is a factor.

These groups include any that are “distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.”

Section 318 of the Code involves hate propaganda, specifically of advocating for genocide. It carries a maximum sentence of five years.

Section 319 describes the crime of inciting hate and willful promotion of hatred. This can be through communicating statements publicly that incite hatred against a group, such as when hate speech is disseminated online or to a large crowd. It does not include statements made in private conversation. The maximum sentence for this is two years.

Section 430 (4.1) describes the crime of mischief related to religious property or buildings used by groups who are distinguished by race, religion or any one of a number of minority groups. Punishments for mischief can vary from fines to imprisonment.

An additional section of the Criminal Code also allows for extra penalties when sentencing when evidence shows the crime was motivated by hatred.

How common are hate crimes in Canada?

According to Statistics Canada, hate crimes are on the rise. According to 2017 data, a total of 2,073 crimes motivated by hate were reported to police nationally — a 64 per cent increase from the previous year. A rise in incidents in the metropolitan areas of Toronto and Montreal in 2017 accounted a large portion of the much of the national increase in total hate crimes.

Sabreena Ghaffar-Siddiqui is a PhD candidate at McMaster University.