Aemma
01-08-2009, 02:38 PM
Application of Canadian Hate Laws
by Daniel Shap
The Legal Group for the Internet in Canada (LoGIC), 1994
Republished with permission
Note: This article was written in 1994, when computer bulletin boards were the most popular method of electronic information exhange. The principles discussed by the author apply to the Internet, nonetheless. The version appearing here has been condensed, with the author's approval. It reflects the opinion of the author at the time it was written and does not necessarily reflect his current opinion or the opinion of any of his past or present employers.
Disclaimer: This article is necessarily of a general nature and cannot be regarded as legal advice. Please consult with authorized counsel to determine the possible effects of matters contained in this article in specific situations.
Application of Canadian Hate Laws
The traditional mediums of communication include voice, gesture and print. With the advent of the information age, communication mediums have expanded to include electronic means of communication including telegraph, telephone, telex, radio and television broadcasting and computer communications.
Most of the laws in Canada which seek to restrict the dissemination of hate propaganda specifically address electronic forms of media. For example, in defining the term "communicating" s. 319(7) [40] of the Criminal Code specifically includes communicating by telephone, broadcasting or other audible or visible means. Similarly, s. 13(1) of the Canadian Human Rights Act specifically prohibits the dissemination of hate messages which are communicated "telephonically", while s. 13(2) clearly provides an exception to subsection (1) for matters communicated "by means of the facilities of a broadcasting undertaking."
While it is encouraging to note that these relatively recent additions to the Canadian law refer to electronic forms of communication, the unique nature of electronic media makes it extremely difficult to discern how these new provisions are to be applied. For example, s. 319(1) of the Criminal Code prohibits a person from communicating statements inciting hatred "in any public place" where such incitement is likely to lead to a breach of the peace. As was noted above, "communicating" includes communicating by telephone or broadcasting or any other audible or visible means. This raises the important question of what it means to communicate statements by telephone, in a public place, which incite hatred where such incitement is likely to lead to a breach of the peace. If a person records a series of hateful messages in his voice-mail box, which are intended to incite hatred and which are likely to lead to a breach of the peace, and he invites others to call in to his voice-mail and listen to the pre-recorded messages [41] , does the person's telephone become a public place for the purposes of s. 319 (1)? What if instead of recording the statements in his voice-mail, the person types the statements on a computer bulletin board which is open and accessible to the public at large? Does the bulletin board become a public place for the purposes of the law?
A. Application of the Criminal Code
Three provisions in the Criminal Code, sections 318, 319 and 320 seek to curb the promotion of hate propaganda in Canada.
Section 318 [42] of the Criminal Code prohibits advocating or promoting genocide. To date, s. 318 has not been used as the basis for a conviction in a Canadian court. Consequently, there has been no opportunity to assess the constitutional validity of this section under the Charter. As with all of the hate propaganda provisions in the Criminal Code, no proceeding for an offence under s. 318 may be instituted without the consent of the Attorney General.
Section 318 of the Criminal Code does not distinguish between the medium of communication used to advocate or promote genocide, neither does it specifically exclude private conversations. In R. v. Rioux, [1969] S.C.R. 599, Hall J., referring to the fact that obscenity law does not extend to include a private viewing, wrote concerning s. 163(2) (then s. 150(2)): "[Translation] If exposing 'to public view' is mentioned in s-s. 92)(a), it is because the legislator intended that this and, not a private showing, should constitute a crime."
Presumably, then, s. 318 could be applied to all modes of communication, including electronic, whenever and wherever a person advocates or promotes genocide.
It is difficult to know what is meant in s. 318 by the words "advocate" and "promote," since these terms are used infrequently throughout the Criminal Code. [43] In the Keegstra decision, however, the Supreme Court of Canada examined the phrase "promotes hatred" as set out in s. 319(2) and concluded that the word "promote" in that provision implies an active and involved role on the part of the accused. Dickson C.J., writing for the majority, said:
"Given the purpose of the provision to criminalize the spreading of hatred in society, I find that the word "promotes" indicates active support or instigation. Indeed the French version of the offence uses the verb "fomenter", which in English means to foment or stir up. In "promotes" we thus have a word that indicates more than simple encouragement or advancement. The hate-monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group."
It may, therefore, be reasonable to conclude that the courts would apply a similar line of reasoning if called upon to interpret the phrase "advocates and promotes genocide" in s. 318. If that were the case, and the courts were to interpret s. 318 in a manner similar to s. 319(2) then s. 318 would prevent individuals or groups from actively encouraging genocide. Consequently, s. 318 would not likely encompass third party liability. That is to say, if the law were to be interpreted as targeting the active encouragement of genocide, it would likely not apply to a third party who passively allows such activities to take place on his premises or via his facilities. As a result, computer bulletin board operators who ignore or are unaware of such activities on their boards would likely be freed of any liability.
Section 319(1) [44] of the Criminal Code prohibits the communication of statements made in any public place which incite hatred where such incitements are likely to lead to a breach of the peace. This section (as of 1991) has never been used as the basis of a conviction in Canada and there has, therefore, been no opportunity to assess its constitutional validity under the Charter. While s. 319 was reviewed by the Supreme Court of Canada in the Keegstra case, the Court focused mostly on subsection (2), upholding its constitutional validity, but casting little light on the scope or application of subsection (1).
On reading s. 319(1), one is immediately struck by the words "in a public place." On its face, the provision would appear to prohibit the communication of all proscribed statements in a public area, regardless of the context in which those statements are made. In other words, even when the statements are made within the context of a private conversation, if that conversation occurs in a public place, then the offence is triggered. Support for this interpretation can be found in the Keegstra decision. Dickson C.J. writing for the majority, said in reference to subsection (2):
"that the legislation excludes private conversation, rather than including communications made in a public forum, suggests that the expression of hatred in a place accessible to the public is not sufficient to activate the legislation...Section 319(1) covers statements communicated "in a public place", suggesting that a wider scope of prohibition was intended where the danger occasioned by the statements was of an immediate nature, while the wording of s. 319(2) indicates that private conversations taking place in public areas are not prohibited."
Although the Keegstra decision focused mostly on s. 319(2), it is useful to consult the decision when attempting to clarify the distinction between "inciting hatred," as per subsection (1), and "wilfully promoting hatred" as set out in subsection (2). The Court in Keegstra examined the wording in s. 319(2) and concluded that the word "wilfully," as defined in R. v. Buzzanga and Durocher, [45] [hereinafter Buzzanga and Durocher] connotes an element of intent into the section which is absent in subsection (1). Dickson C.J. wrote:
"The interpretation of "wilfully" in Buzzanga has great bearing upon the extent to which s. 319(2) limits the freedom of expression. This mental element, requiring more than merely negligence or recklessness as to result, significantly restricts the reach of the provision, and thereby reduces the scope of the targeted expression. Such a reduced scope is recognized and applauded...this stringent standard of mens rea is an invaluable means of limiting the incursion of s. 319(2) into the realm of acceptable (though perhaps offensive and controversial) expression. It is clear that the word "wilfully" imports a difficult burden for the Crown to meet and, in so doing, serves to minimize the impairment of freedom of expression."
In other words, in order to transgress s. 319(1), one need not have intentionally promoted hatred. Neither must the communicating statements have been intended for a public audience. All that is required is that the accused actually succeeded in inciting hatred which was "likely to lead to a breach of the peace." As Martin J. A. wrote in Buzzanga and Durocher:
"The statements, the communication of which are proscribed by [s. 319(2)], are not confined to statements communicated in a public place in circumstances likely to lead to a breach of the peace and they, consequently, do not pose such an immediate threat to public order as those falling under [s.319(1)]; it is reasonable to assume, therefore, that Parliament intended to limit the offence under [s.319(2)] to the intentional promotion of hatred." [Emphasis added]
As was mentioned above, s. 319(1) leaves some question as to what can be defined as a public place. Although a public place is defined in subsection (7) to include any place to which the public have access as a right or by invitation, express or implied, it is far from clear whether this can be interpreted to include a virtual environment such as a publicly accessible computer bulletin board. Can privately owned boards such as these be considered "public places" for the purposes of s. 319(1)?
The jurisprudence concerning the notion of a "public place," as defined in various provisions of the Criminal Code, [47] often concerns acts of indecent exposure and solicitations for the purposes of prostitution. Generally speaking, these cases have decided that where a person is located on or in his private property, but in view of the public, that person will be considered to be in a public place for the purposes of the offence. [48]
An interesting question is whether the Internet can be considered a "public place" for the purposes of s. 319(1). As was previously discussed, the Internet is a disembodied network of physically disparate sub-networks which are connected all over the world. Access to the Internet must, therefore, always take place through a sub-net, where such sub-net is usually privately owned and operated. However, once connected to the Internet, the user is free to roam about and visit other sub-nets which permit anonymous visitors. As well, he can sample the facilities and features of the entire disembodied Internet.
If a Canadian user were to post a series of messages on the Internet which wilfully promote hatred, in violation of s. 319(2), could the user be prosecuted for the offence? Even if the messages did contravene s. 319(1), due to the fact that the Internet could be considered to be a "public place," the reality is that the legislator's will cannot be effectively executed.
Moreover, it seems somewhat bizarre to attempt to enforce Canadian hate propaganda rules on the Internet. The Internet belongs to no single nation on earth [56] and the posting of an obscene or hateful message on the Internet has just as much chance of being viewed by other citizens of the globe as it has of being read by another Canadian. For example, if I choose to connect to the Internet and engage in a real-time, typed conversation with a group of American students, which standard of freedom of expression should apply, mine or theirs? In the United States, hate propaganda crimes do not exist in the way that we know them here in Canada. The American constitution with its first amendment is a creature apart from the Canadian Charter. Should the Canadian legislator seek to protect my sensibilities and the sensibilities of my fellow Canadians from ourselves and from the world at large when on the Internet? With the advent of the Internet and global telecommunications, it becomes increasingly feasible to declare oneself to be a "citizen of the world."
Section 319(2)
In Keegstra, the Supreme Court of Canada upheld the constitutional validity of s. 319(2) of the Criminal Code which makes it a crime to wilfully promote, other than in a private conversation, hatred against a section of the public distinguished by colour, race, religion or ethnic origin. [57]
Section 319(2) raises the question of what can be considered to be a private conversation for the purposes of electronic bulletin boards. The users of computer bulletin boards can communicate via a number of different mechanisms, including electronic mail, bulletin postings, real-time typed "conversations" and "conference calls", and voice mail. Amongst bulletin board users, electronic mail is generally considered to be the most private form of communication. This is followed by typed "conversations" and "conference calls," while bulletin postings are usually held to be the least private means of communicating. Can users communicating via e-mail or typed "conversations" benefit from the defence of a private conversation in order to avoid prosecution under s. 319(2)?
Section 8 of the Charter guarantees everyone the right to be secure against unreasonable search and seizure. However, the rights in s. 8 of the Charter can only be said to apply where there is a reasonable expectation of privacy. In the case of R. v. Lubovac, [58] where the police had obtained a telephone number from an informer with which they were able to obtain messages which had been broadcast and recorded on the accused's paging system, the Court held that the messages were not protected by s. 8 of the Charter because, given the fact that pager messages could be overheard by people on the street, there could not be, either from the subjective or objective aspect, a reasonable expectation of privacy surrounding the conversation. [59] The Court re-emphasised that:
"The right of security from unreasonable search arises only in circumstances where there is a reasonable expectation of privacy. A dwelling, an office, an automobile or a briefcase are good examples. But open conversations are not protected because to expect that privacy surrounds them is not reasonable R. v. Wong (1987), 34 C.C.C. (3d) 51 at p. 63, 56 C.R. (3d) 352 (Ont. C.A.)." [60]
The fundamental question is whether one can possess a reasonable expectation of privacy when sending, receiving and storing e-mail. In the case of Regina v. Newall et al. (No. 3), [61] which dealt with the interception of private communications under Part IV.1 (now Part VI) of the Criminal Code, the British Columbia Supreme Court held that there can be no reasonable expectation of privacy when one sends a letter. The Court stated:
"...when someone sends a letter to another he may hope its contents will not be revealed to a third person, yet it would be unreasonable for him as a reasonable person to expect it would not be read by others at any time. He knows or should know the recipient might voluntarily show the letter to others, or it might get misplaced and come into the hands of a third party...Unlike a letter, a telephone call or private discussion is not given to others for the purposes of transmission nor is it intended by the originator that the words be preserved for later reference." [62]
Conversely, Newfoundland district Court Judge Riche in R. v. Crane [63] wrote:
"The search and seizure of private mail is in my opinion a most serious matter. The privacy of one's mail is a most important and highly-protected element of our society. Should it then be less protected than our right to make communication with another by using the telephone? If I write a letter to someone and post it, should it be less protected than if I use the telephone for that purpose? Except for normal postal inspection of packages, should there be a right in the police to seizure and search items in the mail without prior authorization?...It is my opinion that a person's private mail should not be searched or seized without authorization, which authorization should be granted only by a person acting judicially, such as a magistrate or a judge. The search and seizure of private mail without authorization should be considered prima facie an unreasonable act."
In a computer environment, the question of a reasonable expectation of privacy for electronic mail may possess an additional confusion over that of ordinary mail because of the decision in R. v. Wong, [64] [hereinafter Wong]. In that case, the police installed a video camera to monitor a large-scale gambling house operation that had been set up in a hotel room. The Court decided that the occupants of the room could not have had a reasonable expectation of privacy because Wong had invited and accepted so many people into the room. The problem that this poses for computer networks is that they frequently allow access to a large number of people. In fact, that is one of their chief attractions. One could, therefore, argue from the decision in Wong, that if a number of people have access to one's computer, their very numbers can destroy any reasonable expectation of computer privacy.
Section 320 of the Criminal Code empowers a court that is satisfied that any publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is hate propaganda to issue a warrant authorizing the seizure of that publication. This section has never been used as the basis of a conviction in a Canadian court.
Section 320 raises serious concerns about the liability of secondary publishers in Canada. The provision does not appear to differentiate between various types of publishers. It, therefore, opens the door to the investigation of every Canadian library, bookstore, film and music distributor, electronic magazine and database. [65] In his book, When Freedoms Collide, [66] Alan A. Borovoy recounts how Canadian hate laws have already provoked several questionable investigations. The Ontario Attorney-General investigated Toronto libraries which were carrying the pro-Zionist novel The Haj, because in the opinions of an Arab organization, the book slurred and maligned Arabs. [67] Similarly, Canadian Customs held up the admission of a film sympathetic to South-African leader Nelson Mandela and federal officials investigated the anti-Communist Hollywood film Red Dawn. [68]
Most computer systems are capable of storing a large number of written documents and images. In fact, the primary purpose of most computer bulletin boards is to exchange written messages and publications. Section 320 does not specify what is meant by the term "any publication" and so it must be assumed that all computer correspondence are potentially targetable under this provision. Moreover, since s. 320 speaks of publications which are "kept for sale or distribution," computer bulletin boards, with their tremendous ability to distribute information, would seem to be ideal candidates for the application of this provision.
One question which is raised by s. 320 is what is meant by the term "premises." In order for the judge to issue the warrant, he must be satisfied that there exists "any publication, copies of which are kept for sale or distribution in the premises." [emphasis added] Can the central "host" of a bulletin board be considered a premises for the purposes of this section? Even if a computer can be considered to be a "premises", what would happen if the "host" computer resided in another country, such as the United States. As was previously discussed, all of the large, commercial networks currently reside in the United states, and merely branch of into Canada and parts of Europe. Moreover, what if information were not actually stored on the Canadian central "host" computer, but rather were merely pointed to by the "host." For example, if a Canadian bulletin board did not actually contain hate propaganda publications, but pointed [69] to an American site which actually contained the articles?
This raises the issue of data havens. In an interconnected world, persons seeking to avoid restrictions on their civil liberties can simply move their information to a jurisdiction which will accommodate them. This allegedly occurred after the Canadian Human Rights Commission successfully shut down the operations a Canadian telephone messaging system which was designed to play pre-recorded hate messages. [70] Following the trial, the accused merely moved its operations to the United States and established a 1-800 number for its Canadian callers. The end result of attempting to curtail civil liberties in an interconnected world is that various international jurisdictions will assume the role of data havens, a most likely example being the United States, where freedom of expression is guaranteed, regardless of the nature of the expression. Short of cutting off access to that country, or applying political pressure, how could foreign governments prevent their constituents from accessing sites in other countries?
In the United States, the National Security Agency ("NSA") already monitors all overseas transmissions of data. Their mandate would presumably extend to include all computerized communications. Canadians must ask themselves if they really want their communications infrastructure to be converted into a massive surveillance system for the state.
Canadians must also carefully consider whether they want to institute laws which would force Canadian bulletin board and network operators to search the contents of their systems for any offending material. It is important to remember that such laws would severely impinge on the privacy of many computer users. On the other hand, this re-raises the question of whether computer network users can even claim a reasonable expectation of privacy. It is also important to point out that the sheer volume of information contained on most computer networks today makes the searching of such systems for offence materials a virtual impossibility.
Canada, however, cannot simply abandon its attempts at controlling the promulgation of hate propaganda. As a signatory to a considerable number of international conventions on human rights, Canada has an international obligation to legislatively outlaw all ideas based on hate. For example, the International Covenant on Civil and Political Rights (hereinafter Covenant) has been in force for Canada since August 19, 1976. Article 20(2) of the Covenant requires that: "20(2). any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."
The mere signing of an international treaty, however, does not give it the force of law in Canada. It merely places Parliament under an obligation to incorporate the provisions of the Covenant into Canadian law. The federal government has the power to implement the Covenant domestically if the subject matter falls within its jurisdictional powers.Canada has ratified the Covenant, but it has not yet implemented it in its entirety. However, section 318, 319, and 320 of the Criminal Code contain provisions sufficient to meet the requirements of article 20(2) of the Covenant.
Daniel Shap is a lawyer for the law firm Osler, Hoskin & Harcourt. This article reflects the opinion of the author at the time it was written and does not necessarily reflect his current opinion or the opinion of any of his past or present employers.
Source: http://www.media-awareness.ca/english/resources/articles/online_hate/hate_crime_electron_2.cfm
by Daniel Shap
The Legal Group for the Internet in Canada (LoGIC), 1994
Republished with permission
Note: This article was written in 1994, when computer bulletin boards were the most popular method of electronic information exhange. The principles discussed by the author apply to the Internet, nonetheless. The version appearing here has been condensed, with the author's approval. It reflects the opinion of the author at the time it was written and does not necessarily reflect his current opinion or the opinion of any of his past or present employers.
Disclaimer: This article is necessarily of a general nature and cannot be regarded as legal advice. Please consult with authorized counsel to determine the possible effects of matters contained in this article in specific situations.
Application of Canadian Hate Laws
The traditional mediums of communication include voice, gesture and print. With the advent of the information age, communication mediums have expanded to include electronic means of communication including telegraph, telephone, telex, radio and television broadcasting and computer communications.
Most of the laws in Canada which seek to restrict the dissemination of hate propaganda specifically address electronic forms of media. For example, in defining the term "communicating" s. 319(7) [40] of the Criminal Code specifically includes communicating by telephone, broadcasting or other audible or visible means. Similarly, s. 13(1) of the Canadian Human Rights Act specifically prohibits the dissemination of hate messages which are communicated "telephonically", while s. 13(2) clearly provides an exception to subsection (1) for matters communicated "by means of the facilities of a broadcasting undertaking."
While it is encouraging to note that these relatively recent additions to the Canadian law refer to electronic forms of communication, the unique nature of electronic media makes it extremely difficult to discern how these new provisions are to be applied. For example, s. 319(1) of the Criminal Code prohibits a person from communicating statements inciting hatred "in any public place" where such incitement is likely to lead to a breach of the peace. As was noted above, "communicating" includes communicating by telephone or broadcasting or any other audible or visible means. This raises the important question of what it means to communicate statements by telephone, in a public place, which incite hatred where such incitement is likely to lead to a breach of the peace. If a person records a series of hateful messages in his voice-mail box, which are intended to incite hatred and which are likely to lead to a breach of the peace, and he invites others to call in to his voice-mail and listen to the pre-recorded messages [41] , does the person's telephone become a public place for the purposes of s. 319 (1)? What if instead of recording the statements in his voice-mail, the person types the statements on a computer bulletin board which is open and accessible to the public at large? Does the bulletin board become a public place for the purposes of the law?
A. Application of the Criminal Code
Three provisions in the Criminal Code, sections 318, 319 and 320 seek to curb the promotion of hate propaganda in Canada.
Section 318 [42] of the Criminal Code prohibits advocating or promoting genocide. To date, s. 318 has not been used as the basis for a conviction in a Canadian court. Consequently, there has been no opportunity to assess the constitutional validity of this section under the Charter. As with all of the hate propaganda provisions in the Criminal Code, no proceeding for an offence under s. 318 may be instituted without the consent of the Attorney General.
Section 318 of the Criminal Code does not distinguish between the medium of communication used to advocate or promote genocide, neither does it specifically exclude private conversations. In R. v. Rioux, [1969] S.C.R. 599, Hall J., referring to the fact that obscenity law does not extend to include a private viewing, wrote concerning s. 163(2) (then s. 150(2)): "[Translation] If exposing 'to public view' is mentioned in s-s. 92)(a), it is because the legislator intended that this and, not a private showing, should constitute a crime."
Presumably, then, s. 318 could be applied to all modes of communication, including electronic, whenever and wherever a person advocates or promotes genocide.
It is difficult to know what is meant in s. 318 by the words "advocate" and "promote," since these terms are used infrequently throughout the Criminal Code. [43] In the Keegstra decision, however, the Supreme Court of Canada examined the phrase "promotes hatred" as set out in s. 319(2) and concluded that the word "promote" in that provision implies an active and involved role on the part of the accused. Dickson C.J., writing for the majority, said:
"Given the purpose of the provision to criminalize the spreading of hatred in society, I find that the word "promotes" indicates active support or instigation. Indeed the French version of the offence uses the verb "fomenter", which in English means to foment or stir up. In "promotes" we thus have a word that indicates more than simple encouragement or advancement. The hate-monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group."
It may, therefore, be reasonable to conclude that the courts would apply a similar line of reasoning if called upon to interpret the phrase "advocates and promotes genocide" in s. 318. If that were the case, and the courts were to interpret s. 318 in a manner similar to s. 319(2) then s. 318 would prevent individuals or groups from actively encouraging genocide. Consequently, s. 318 would not likely encompass third party liability. That is to say, if the law were to be interpreted as targeting the active encouragement of genocide, it would likely not apply to a third party who passively allows such activities to take place on his premises or via his facilities. As a result, computer bulletin board operators who ignore or are unaware of such activities on their boards would likely be freed of any liability.
Section 319(1) [44] of the Criminal Code prohibits the communication of statements made in any public place which incite hatred where such incitements are likely to lead to a breach of the peace. This section (as of 1991) has never been used as the basis of a conviction in Canada and there has, therefore, been no opportunity to assess its constitutional validity under the Charter. While s. 319 was reviewed by the Supreme Court of Canada in the Keegstra case, the Court focused mostly on subsection (2), upholding its constitutional validity, but casting little light on the scope or application of subsection (1).
On reading s. 319(1), one is immediately struck by the words "in a public place." On its face, the provision would appear to prohibit the communication of all proscribed statements in a public area, regardless of the context in which those statements are made. In other words, even when the statements are made within the context of a private conversation, if that conversation occurs in a public place, then the offence is triggered. Support for this interpretation can be found in the Keegstra decision. Dickson C.J. writing for the majority, said in reference to subsection (2):
"that the legislation excludes private conversation, rather than including communications made in a public forum, suggests that the expression of hatred in a place accessible to the public is not sufficient to activate the legislation...Section 319(1) covers statements communicated "in a public place", suggesting that a wider scope of prohibition was intended where the danger occasioned by the statements was of an immediate nature, while the wording of s. 319(2) indicates that private conversations taking place in public areas are not prohibited."
Although the Keegstra decision focused mostly on s. 319(2), it is useful to consult the decision when attempting to clarify the distinction between "inciting hatred," as per subsection (1), and "wilfully promoting hatred" as set out in subsection (2). The Court in Keegstra examined the wording in s. 319(2) and concluded that the word "wilfully," as defined in R. v. Buzzanga and Durocher, [45] [hereinafter Buzzanga and Durocher] connotes an element of intent into the section which is absent in subsection (1). Dickson C.J. wrote:
"The interpretation of "wilfully" in Buzzanga has great bearing upon the extent to which s. 319(2) limits the freedom of expression. This mental element, requiring more than merely negligence or recklessness as to result, significantly restricts the reach of the provision, and thereby reduces the scope of the targeted expression. Such a reduced scope is recognized and applauded...this stringent standard of mens rea is an invaluable means of limiting the incursion of s. 319(2) into the realm of acceptable (though perhaps offensive and controversial) expression. It is clear that the word "wilfully" imports a difficult burden for the Crown to meet and, in so doing, serves to minimize the impairment of freedom of expression."
In other words, in order to transgress s. 319(1), one need not have intentionally promoted hatred. Neither must the communicating statements have been intended for a public audience. All that is required is that the accused actually succeeded in inciting hatred which was "likely to lead to a breach of the peace." As Martin J. A. wrote in Buzzanga and Durocher:
"The statements, the communication of which are proscribed by [s. 319(2)], are not confined to statements communicated in a public place in circumstances likely to lead to a breach of the peace and they, consequently, do not pose such an immediate threat to public order as those falling under [s.319(1)]; it is reasonable to assume, therefore, that Parliament intended to limit the offence under [s.319(2)] to the intentional promotion of hatred." [Emphasis added]
As was mentioned above, s. 319(1) leaves some question as to what can be defined as a public place. Although a public place is defined in subsection (7) to include any place to which the public have access as a right or by invitation, express or implied, it is far from clear whether this can be interpreted to include a virtual environment such as a publicly accessible computer bulletin board. Can privately owned boards such as these be considered "public places" for the purposes of s. 319(1)?
The jurisprudence concerning the notion of a "public place," as defined in various provisions of the Criminal Code, [47] often concerns acts of indecent exposure and solicitations for the purposes of prostitution. Generally speaking, these cases have decided that where a person is located on or in his private property, but in view of the public, that person will be considered to be in a public place for the purposes of the offence. [48]
An interesting question is whether the Internet can be considered a "public place" for the purposes of s. 319(1). As was previously discussed, the Internet is a disembodied network of physically disparate sub-networks which are connected all over the world. Access to the Internet must, therefore, always take place through a sub-net, where such sub-net is usually privately owned and operated. However, once connected to the Internet, the user is free to roam about and visit other sub-nets which permit anonymous visitors. As well, he can sample the facilities and features of the entire disembodied Internet.
If a Canadian user were to post a series of messages on the Internet which wilfully promote hatred, in violation of s. 319(2), could the user be prosecuted for the offence? Even if the messages did contravene s. 319(1), due to the fact that the Internet could be considered to be a "public place," the reality is that the legislator's will cannot be effectively executed.
Moreover, it seems somewhat bizarre to attempt to enforce Canadian hate propaganda rules on the Internet. The Internet belongs to no single nation on earth [56] and the posting of an obscene or hateful message on the Internet has just as much chance of being viewed by other citizens of the globe as it has of being read by another Canadian. For example, if I choose to connect to the Internet and engage in a real-time, typed conversation with a group of American students, which standard of freedom of expression should apply, mine or theirs? In the United States, hate propaganda crimes do not exist in the way that we know them here in Canada. The American constitution with its first amendment is a creature apart from the Canadian Charter. Should the Canadian legislator seek to protect my sensibilities and the sensibilities of my fellow Canadians from ourselves and from the world at large when on the Internet? With the advent of the Internet and global telecommunications, it becomes increasingly feasible to declare oneself to be a "citizen of the world."
Section 319(2)
In Keegstra, the Supreme Court of Canada upheld the constitutional validity of s. 319(2) of the Criminal Code which makes it a crime to wilfully promote, other than in a private conversation, hatred against a section of the public distinguished by colour, race, religion or ethnic origin. [57]
Section 319(2) raises the question of what can be considered to be a private conversation for the purposes of electronic bulletin boards. The users of computer bulletin boards can communicate via a number of different mechanisms, including electronic mail, bulletin postings, real-time typed "conversations" and "conference calls", and voice mail. Amongst bulletin board users, electronic mail is generally considered to be the most private form of communication. This is followed by typed "conversations" and "conference calls," while bulletin postings are usually held to be the least private means of communicating. Can users communicating via e-mail or typed "conversations" benefit from the defence of a private conversation in order to avoid prosecution under s. 319(2)?
Section 8 of the Charter guarantees everyone the right to be secure against unreasonable search and seizure. However, the rights in s. 8 of the Charter can only be said to apply where there is a reasonable expectation of privacy. In the case of R. v. Lubovac, [58] where the police had obtained a telephone number from an informer with which they were able to obtain messages which had been broadcast and recorded on the accused's paging system, the Court held that the messages were not protected by s. 8 of the Charter because, given the fact that pager messages could be overheard by people on the street, there could not be, either from the subjective or objective aspect, a reasonable expectation of privacy surrounding the conversation. [59] The Court re-emphasised that:
"The right of security from unreasonable search arises only in circumstances where there is a reasonable expectation of privacy. A dwelling, an office, an automobile or a briefcase are good examples. But open conversations are not protected because to expect that privacy surrounds them is not reasonable R. v. Wong (1987), 34 C.C.C. (3d) 51 at p. 63, 56 C.R. (3d) 352 (Ont. C.A.)." [60]
The fundamental question is whether one can possess a reasonable expectation of privacy when sending, receiving and storing e-mail. In the case of Regina v. Newall et al. (No. 3), [61] which dealt with the interception of private communications under Part IV.1 (now Part VI) of the Criminal Code, the British Columbia Supreme Court held that there can be no reasonable expectation of privacy when one sends a letter. The Court stated:
"...when someone sends a letter to another he may hope its contents will not be revealed to a third person, yet it would be unreasonable for him as a reasonable person to expect it would not be read by others at any time. He knows or should know the recipient might voluntarily show the letter to others, or it might get misplaced and come into the hands of a third party...Unlike a letter, a telephone call or private discussion is not given to others for the purposes of transmission nor is it intended by the originator that the words be preserved for later reference." [62]
Conversely, Newfoundland district Court Judge Riche in R. v. Crane [63] wrote:
"The search and seizure of private mail is in my opinion a most serious matter. The privacy of one's mail is a most important and highly-protected element of our society. Should it then be less protected than our right to make communication with another by using the telephone? If I write a letter to someone and post it, should it be less protected than if I use the telephone for that purpose? Except for normal postal inspection of packages, should there be a right in the police to seizure and search items in the mail without prior authorization?...It is my opinion that a person's private mail should not be searched or seized without authorization, which authorization should be granted only by a person acting judicially, such as a magistrate or a judge. The search and seizure of private mail without authorization should be considered prima facie an unreasonable act."
In a computer environment, the question of a reasonable expectation of privacy for electronic mail may possess an additional confusion over that of ordinary mail because of the decision in R. v. Wong, [64] [hereinafter Wong]. In that case, the police installed a video camera to monitor a large-scale gambling house operation that had been set up in a hotel room. The Court decided that the occupants of the room could not have had a reasonable expectation of privacy because Wong had invited and accepted so many people into the room. The problem that this poses for computer networks is that they frequently allow access to a large number of people. In fact, that is one of their chief attractions. One could, therefore, argue from the decision in Wong, that if a number of people have access to one's computer, their very numbers can destroy any reasonable expectation of computer privacy.
Section 320 of the Criminal Code empowers a court that is satisfied that any publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is hate propaganda to issue a warrant authorizing the seizure of that publication. This section has never been used as the basis of a conviction in a Canadian court.
Section 320 raises serious concerns about the liability of secondary publishers in Canada. The provision does not appear to differentiate between various types of publishers. It, therefore, opens the door to the investigation of every Canadian library, bookstore, film and music distributor, electronic magazine and database. [65] In his book, When Freedoms Collide, [66] Alan A. Borovoy recounts how Canadian hate laws have already provoked several questionable investigations. The Ontario Attorney-General investigated Toronto libraries which were carrying the pro-Zionist novel The Haj, because in the opinions of an Arab organization, the book slurred and maligned Arabs. [67] Similarly, Canadian Customs held up the admission of a film sympathetic to South-African leader Nelson Mandela and federal officials investigated the anti-Communist Hollywood film Red Dawn. [68]
Most computer systems are capable of storing a large number of written documents and images. In fact, the primary purpose of most computer bulletin boards is to exchange written messages and publications. Section 320 does not specify what is meant by the term "any publication" and so it must be assumed that all computer correspondence are potentially targetable under this provision. Moreover, since s. 320 speaks of publications which are "kept for sale or distribution," computer bulletin boards, with their tremendous ability to distribute information, would seem to be ideal candidates for the application of this provision.
One question which is raised by s. 320 is what is meant by the term "premises." In order for the judge to issue the warrant, he must be satisfied that there exists "any publication, copies of which are kept for sale or distribution in the premises." [emphasis added] Can the central "host" of a bulletin board be considered a premises for the purposes of this section? Even if a computer can be considered to be a "premises", what would happen if the "host" computer resided in another country, such as the United States. As was previously discussed, all of the large, commercial networks currently reside in the United states, and merely branch of into Canada and parts of Europe. Moreover, what if information were not actually stored on the Canadian central "host" computer, but rather were merely pointed to by the "host." For example, if a Canadian bulletin board did not actually contain hate propaganda publications, but pointed [69] to an American site which actually contained the articles?
This raises the issue of data havens. In an interconnected world, persons seeking to avoid restrictions on their civil liberties can simply move their information to a jurisdiction which will accommodate them. This allegedly occurred after the Canadian Human Rights Commission successfully shut down the operations a Canadian telephone messaging system which was designed to play pre-recorded hate messages. [70] Following the trial, the accused merely moved its operations to the United States and established a 1-800 number for its Canadian callers. The end result of attempting to curtail civil liberties in an interconnected world is that various international jurisdictions will assume the role of data havens, a most likely example being the United States, where freedom of expression is guaranteed, regardless of the nature of the expression. Short of cutting off access to that country, or applying political pressure, how could foreign governments prevent their constituents from accessing sites in other countries?
In the United States, the National Security Agency ("NSA") already monitors all overseas transmissions of data. Their mandate would presumably extend to include all computerized communications. Canadians must ask themselves if they really want their communications infrastructure to be converted into a massive surveillance system for the state.
Canadians must also carefully consider whether they want to institute laws which would force Canadian bulletin board and network operators to search the contents of their systems for any offending material. It is important to remember that such laws would severely impinge on the privacy of many computer users. On the other hand, this re-raises the question of whether computer network users can even claim a reasonable expectation of privacy. It is also important to point out that the sheer volume of information contained on most computer networks today makes the searching of such systems for offence materials a virtual impossibility.
Canada, however, cannot simply abandon its attempts at controlling the promulgation of hate propaganda. As a signatory to a considerable number of international conventions on human rights, Canada has an international obligation to legislatively outlaw all ideas based on hate. For example, the International Covenant on Civil and Political Rights (hereinafter Covenant) has been in force for Canada since August 19, 1976. Article 20(2) of the Covenant requires that: "20(2). any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."
The mere signing of an international treaty, however, does not give it the force of law in Canada. It merely places Parliament under an obligation to incorporate the provisions of the Covenant into Canadian law. The federal government has the power to implement the Covenant domestically if the subject matter falls within its jurisdictional powers.Canada has ratified the Covenant, but it has not yet implemented it in its entirety. However, section 318, 319, and 320 of the Criminal Code contain provisions sufficient to meet the requirements of article 20(2) of the Covenant.
Daniel Shap is a lawyer for the law firm Osler, Hoskin & Harcourt. This article reflects the opinion of the author at the time it was written and does not necessarily reflect his current opinion or the opinion of any of his past or present employers.
Source: http://www.media-awareness.ca/english/resources/articles/online_hate/hate_crime_electron_2.cfm