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Wayne K. Spear


Hate Crime Comes of Age in Canada

Posted: 03/04/2013 8:31 am

With Thomas Flanagan and William Whatcott so heavily in the news, section 2(b) of the Canadian Charter of Rights and Freedoms might well be designated trope of the moment. Section 2(b), as we are of late reminded, grants to Canadian citizens their freedoms of conscience and religion, thought, belief, opinion and expression. The Charter also submits these freedoms only to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Reasonable limits, demonstrably justified: there, friends, is the rub. You'll recall that this knotty business of balancing freedoms against proscriptions first got underway in 1990, when the Supreme Court deliberated three cases involving (among other things) holocaust denial and white supremacy. The most notorious concerned the anti-Semite James Keegstra, then a public school teacher in Eckville, Alberta. Recent editorial commentary of the Whatcott case suggests something fundamentally new has been added to the ledger, but as long ago as 1990 Sections 318, 319, and 320 of the Criminal Code (the provisions delineating "hate propaganda") were being upheld both as constitutional and properly applied. In other words, hate crime has now reached the age of majority.

From the age of majority we arrive to the topic of dissenting minorities: Mr. Flanagan, who committed the offence of thinking out loud in the presence of a more numerous and differently-thinking audience. The swift drubbing that followed reminded me of R. v Sharpe, the 1995 child pornography case in which Justice Duncan Shaw not only thought out loud but issued a court decision as well. He took the side of John Robin Sharpe, ruling that section 2(b) of the Charter did indeed protect the possession of child pornography. (Justice Shaw's ruling was overturned by the Supreme Court of Canada.) In flooded the mail and editorials, as well as death threats and calls for retribution.

Well, as noted in the Saskatchewan Court of Appeal ruling which contradicted the Saskatchewan Human Rights Tribunal's censure of William Whatcott, "debate will sometimes be polemical and impolite." By definition however this can be the case only insofar as the currency of unfashionable and unpopular and even offensive opinions is admitted to the marketplace of ideas. Polemic assumes sharp disagreement, and as Rosa Luxemburg observed, freedom of speech must always be for the one who thinks differently.

For near one quarter of a century now Canada's justice system has provided for the criminalization of words, ideas and expressions. The guiding principle of this effort appears to be that hate speech tends toward hate acts. As the Supreme Court this past week put it:

Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide.

Numerous examples, as recent and divergent in character as Hutu Power and the suicide of Amanda Todd, establish the causal relationship of hateful expression and material harms. And who can doubt the cranking of the thermostat which would occur if the William Whatcotts had their way? (One can defend his right to free speech while having no illusions about the affront to personal liberty which the man represents.) The Keegstra case reminds us that it was millenia of blood libel and such from which the Shoah derived its impetus. Viewed in this way, Canadian hate speech laws may best be characterized not only as a striking of balance but as an essentially pre-emptive effort.

The Whatcott case establishes additional precedent, thereby further entrenching and clarifying existing principles. But the Flanagan case reminds us that even in the absence of a formal criminal charge, an offended majority will impose its justice of the marketplace.

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  • Anne Hathaway

    Anne Hathaway, who's been outspoken about her support for her gay brother, <a href="http://www.interviewmagazine.com/film/anne-hathaway-1" target="_hplink">told Chelsea Handler in <em>Interview</em></a>, "The other thing I want to say about Jersey is they need to get on the New York bandwagon and legalize gay marriage." She continued, "But I think everybody should do that. It's not a specifically Jersey thing."

  • Brad Pitt

    Though it was revealed recently that Pitt and longtime partner Angelina Jolie <a href="http://www.huffingtonpost.com/2012/04/13/brad-pitt-angelina-jolie-engaged-jeweler_n_1424139.html" target="_hplink">are now engaged</a> (they previously said they would not get married until marriage was an option for all people), the actor has been a staunch supporter of the LGBT community. In 2009 he donated $100,000 to fighting Proposition 8, the California law which made same-sex marriage illegal in the state. Pitt said: <blockquote>"Because no one has the right to deny another their life, even though they disagree with it, because everyone has the right to live the life they so desire if it doesn't harm another and because discrimination has no place in America, <a href="http://www.eonline.com/news/spielberg_makes_like_pitt_supports/30446" target="_hplink">my vote will be for equality and against Proposition 8.</a>"</blockquote> Pitt also recently starred in a production of Dustin Lance Black's play "8," based on the Prop 8 trial.

  • Cyndi Lauper

    Lauper launched her Give a Damn Campaign to raise awareness for the struggles of gay and transgender youth. "For far too long, dogma and fear have torn apart too many families,<a href="http://www.huffingtonpost.com/cyndi-lauper/give-a-damn_b_1000046.html" target="_hplink">" she wrote in The Huffington Post in 2011</a>. "It is a time when the heart must lead the way when your child shares this personal and life-changing moment with you."

  • Clint Eastwood

    In a 2011 interview with <em>GQ</em> Eastwood said: "These people who are making a big deal out of gay marriage? I don't give a f*** about who wants to get married to anybody else! Why not?! We're making a big deal out of things we shouldn't be making a deal out of. They go on and on with all this bulls*** about "sanctity" -- don't give me that sanctity crap! <a href="http://www.gq.com/entertainment/movies-and-tv/201110/leonardo-dicaprio-clint-eastwood-gq-september-2011-cover-story-article#ixzz1dEBChGb4" target="_hplink">Just give everybody the chance to have the life they want."</a>

  • Charles Barkley

    During an interview on SiriusXM radio, Barkley was asked how he felt about gay players in the locker room. Barkley responded <a href="http://content.usatoday.com/communities/gameon/post/2011/05/media-watch-charles-barkley-on-gay-athletes----we-dont-care/1#.T4wuIZrLx1M" target="_hplink">that a gay player would only be judged based</a> on "whether he can play or not. If somebody is gay, that's their own business. But it bothers me how people try to say that jocks are not going to like a gay. ... I think gay people should be allowed to get married and God bless them, that's their own business. Listen, if a guy can't play that's the only time we don't want to play with him. We don't care about all that extracurricular stuff."

  • Kate Winslet

    "I like the diversity that my children are exposed to every day," Kate Winslet <a href="http://www.vmagazine.com/2011/09/kate-winslet/?page=2" target="_hplink">told <em>V</em> magazine in 2011</a>. "I love the way their brains work. Joe [her son] turns to me the other day and says, 'One day, I will have a girlfriend. But I might have a boyfriend. If I'm gay.' He's 7! And I said, 'You might have a girlfriend or a boyfriend, darling.' And he said, 'Which would you prefer?' And I said, 'My love, that would be entirely up to you, and it doesn't make any difference to me.'"

  • Sean Avery

    Not only has the New York Rangers hockey star come out in support of gay marriage (see the video above), when asked about <a href="http://www.torontosun.com/sports/hockey/2011/02/03/17146546.html" target="_hplink">what he'd do if there were a gay player in the locker room</a> he said: <blockquote>"I'll stand beside him in the dressing room while he tells his teammates he is gay. Maybe if Sean Avery is there, they would have less of a problem with it."</blockquote>

  • Daniel Radcliffe

    The "Harry Potter" star has long been an advocate for LGBT causes including <a href="http://www.thetrevorproject.org/" target="_hplink">The Trevor Project</a>, which helps LGBT youth who are dealing with suicidal thoughts. Radcliffe, who was <a href="http://www.out.com/entertainment/2010/08/08/daniel-radcliffe-and-our-lady-j-odd-couple" target="_hplink">featured on the cover of gay men's magazine <em>Out</em></a> with transgender musician and friend Our Lady J, will play gay poet Allen Ginsberg in an upcoming biopic.

  • Julianne Moore

    "I think it's a very basic human rights issue," Moore, who played one half of a lesbian couple in 2010's "The Kids Are Alright,"<a href="http://www.wwd.com/eye/parties/calvin-klein-fetes-americans-for-marriage-equality-5400017" target="_hplink"> told <em>Women's Wear Daily.</em></a> "Everybody has the right to marry the person they love and be represented as a couple and family....It's something that people will look back on in years to come and say, 'I can't believe it took so long for us to recognize this.' It'll be like segregation and giving women the right to vote."

  • Steven Spielberg

    Brad Pitt wasn't the only one to donate to the fight against Prop 8. In 2008 Steven Spielberg also plunked down $100,000 in hopes of defeating the anti-marriage equality bill. Spielberg, who made the donation with his wife Kate Capshaw, said: "By writing discrimination into our state constitution, Proposition 8 seeks to eliminate the right of each and every citizen in our state to marry regardless of sexual orientation. <a href="http://www.eonline.com/news/spielberg_makes_like_pitt_supports/30446#ixzz1sDFjEXxY" target="_hplink">Such discrimination has NO place in California's constitution, or any other.</a>"

  • Miley Cyrus

    In August 2011, <a href="http://www.huffingtonpost.com/2012/02/03/miley-cyrus-why-i-got-my-gay-marriage-tattoo_n_1253130.html" target="_hplink">Cyrus tattooed</a> a small "equals" sign on her middle finger, in support of same-sex marriage. She later told <em>Glamour</em> that the idea of not being able to marry the person you love more than anything in the world makes her "feel sick to her stomach."

  • Sean Penn

    Penn played the role of slain gay rights activist Harvey Milk and was awarded an Oscar for his incredible portrayal. During his acceptance speech Penn said: <blockquote>"I think that it is a good time for those who voted for the ban against gay marriage to sit and reflect and anticipate their great shame and the shame in their grandchildren's eyes if they continue that way of support. We've got to have equal rights for everyone."</blockquote>

  • Pink

    Pink chose to set the video for her 2010 hit "Raise Your Glass" at a gay wedding. "I threw my best friend's wedding in my backyard -- [she] is gay and she married her wife, and it was absolutely beautiful," <a href="http://www.mtv.com/news/articles/1649597/pinks-raise-your-glass-video-celebrates-gay-marriage.jhtml" target="_hplink">she told MTV News</a>. "At the end of it, her mom said, 'Why can't this be legal?' and started crying. It was just the most heartbreaking thing I've ever seen, so that's why I'm doing it in my video. "

  • Russell Simmons

    The entertainment mogul has long been an ally to the LGBT community. In a 2009 Huffington Post blog written as an open letter to then NY Governor David Paterson, Simmons said: <blockquote>"You have recently done this in showing support for the legalization of gay marriage. <a href="http://www.huffingtonpost.com/russell-simmons/dear-governor-paterson-an_b_188307.html" target="_hplink">History will show you are right</a> and will we support you on this issue."</blockquote>

  • Natalie Portman

    Portman and husband Benjamin Millepied <a href="http://www.eonline.com/news/natalie_portman_benjamin_millepied_say/245874" target="_hplink">were among the stars</a> who signed Freedom to Marry's "I Do" open letter, which called on President Obama to declare his support for marriage equality.

  • Zach Wahls

    The son of two lesbians, Wahls gave an <a href="http://www.huffingtonpost.com/2011/12/01/zach-wahls-iowa-student-marriage-equality_n_1123020.html" target="_hplink">incredible pro-gay marriage, pro-gay parenting speech</a> in front of the Iowa House of Representatives in February of 2011. The speech was so inspiring that it went viral on the Internet not just in February of 2011 but then again nearly 11 months later in December of 2011. Up next, Wahls will serve as co-chair for "The Outspoken Generation," the Family Equality Council's national youth advocacy initiative <a href="http://www.huffingtonpost.com/2012/04/06/zach-wahls-outspoken-generation-ella-robinson-gay-parents_n_1408703.html" target="_hplink">involving the young adult children of LGBT parents.</a> http://www.huffingtonpost.com/2012/04/06/zach-wahls-outspoken-generation-ella-robinson-gay-parents_n_1408703.html

  • Jennifer Aniston

    Following New York's historic passage of a same-sex marriage bill in June 2011, Jennifer Aniston <a href="http://www.mtv.com/news/articles/1666491/jennifer-aniston-gay-marriage-vote.jhtml" target="_hplink">told MTV News:</a> "It's great! I thought it was unbelievable. So exciting in this time and that it happens to be Gay Pride weekend. What a great weekend."

  • George Clooney

    In a recent interview with "the Advocate," the longtime LGBT ally, addressed rumors about his own sexuality and <a href="http://www.huffingtonpost.com/2012/02/29/george-clooney-advocate-gay-rumors-marriage-brad-pitt_n_1310901.html" target="_hplink">affirmed his dedication to supporting his gay friends</a>: <blockquote>"I think it's funny, but the last thing you'll ever see me do is jump up and down, saying, 'These are lies!' That would be unfair and unkind to my good friends in the gay community," Clooney said. "I'm not going to let anyone make it seem like being gay is a bad thing. My private life is private, and I'm very happy in it. Who does it hurt if someone thinks I'm gay? I'll be long dead and there will still be people who say I was gay. I don't give a sh*t."</blockquote>

  • Hudson Taylor

    The wrestling star and Division I wrestling coach recently launched Athlete Ally, a 501(c)(3) nonprofit organization which aims to <a href="http://www.huffingtonpost.com/hudson-taylor/gay-college-sports-coaches_b_1210651.html" target="_hplink">educate and empower straight allies in sports</a> to speak out against homophobia and transphobia.

  • Josh Hutcherson

    Hutcherson is <a href="http://www.huffingtonpost.com/2012/04/16/josh-hutcherson-glaad-vanguard-award_n_1428460.html" target="_hplink">the youngest person to ever be honored by GLAAD with the Vanguard Award for his work with the LGBT community</a>, which includes the founding of Straight But Not Narrow, a campaign that "is primarily directed to the young, straight male by using comedy and their peers to positively influence their views on LGBT teens." The teen, who filmed a video for SBNN (see above) told SamaritanMag.com, "...[the campaign] hits close to home for me. I have a lot of gay friends in Los Angeles. My roommate's gay and I lost two uncles when I was young to AIDS, so it's an important cause in my family."