From a presentation I made to the Halifax Board of Police Commissioners’ Subcommittee to Define Defunding the Police: Hateful Crimes should be classified as Hate Crimes— June 19, 2021
This presentation, Hate Crimes and Hate Expression, centred on what can be done to ensure hateful crimes are classified as hate crimes. Currently crown prosecutors and the police are reluctant to classify verbal and physical attacks on Blacks, South Asians or Indigenous people or disabled or marginalized people as hate crimes. That is because the province’s Attorney General has to OK the use of that particular charge. In other words, though hate crimes happen in Nova Scotia, they are seldom termed called hate crimes
A look at two cases proves the point: the case of the cross burning on the lawn of a biracial family in Windsor, NS in 2010, and the case of a white man shooting a nail-gun into the back of a black co-worker on a construction site in Pictou, NS in 2018.
A 2-metre high wooden cross was set ablaze on the front lawn of a biracial family in Windsor, NS…
In 2010, late one night, two brothers set a two-metre high wooden cross on fire on the front lawn of an interracial couple’s home in Windsor. The crown did a great service to the public by conducting research, investigating the crime and preparing a case and charging the two men criminal harassment and a hate crime. Both men got jail time. The crime terrorized the family and the wider community.
In 2018, a construction worker shot Nahlanhla Dlamini, a young black man who also worked on the site in Abercrombie, with a nail-gun. The 3.5 inch nail entered Dlamini’s back and punctured one of Dlamini’s lungs. The shooter was charged with criminal negligence causing bodily harm and assault with a weapon. Unfortunately, in this case, the crown and the police did not pursue the case as a hate crime. The judge did say it was racially motivated, and that “anti-Black discrimination is a historic fact that is continuing.” However, though the 45-year old perpetrator was convicted, he received a conditional sentence of a year’s probation.
Law prof and infant daughter terrorized by racists on a Halifax bus
In October 2018, Dalhousie University law professor Isaac Saney and, in a stroller, his six-month old daughter boarded a bus on Spring Garden Road in Halifax. Saney and his daughter are black. A white woman and man got on the bus and tried to intimidate Saney by making anti-immigrant racist comments about people being “let in” to Canada, “people who don’t have manners” and more. The couple swore at him and threatened to attack him when he left the bus. They also threatened a South-Asian couple with a small child on the same bus. Several passengers stood up to the racists; the bus driver ordered the racists off the bus. However, when Saney got off the bus at Scotia Square, the racist couple was waiting for him. Fortunately, a woman, a good Samaritan fellow passenger who had been on the bus, also got off with Saney an effort to protect him and his baby. They called the police. The woman perpetrator was charged with criminal harassment and creating a disturbance, she received a 60-day conditional sentence to be served at her home.
Though Saney suggested to the police and the Crown that it had been a hate crime—no hate charges were laid.
The question is:
Clearly the police, the crowns and the Attorney General are ill-prepared and ill-disposed toward invoking Sections 318, or 319 of the Criminal Code. The two clauses say it is an offence to publicly advocate genocide and incite or promote hatred. Section 718.2 of the Code allows a court, in sentencing, to take bias, prejudice or hate into consideration as an “aggravating circumstance.”
Yet use of these clauses is far from routine. There are four possible reasons for this:
- Criminal cases require a more prohibitive standard of proof. The Crown has lost several of the cases brought, not because the utterances weren’t hateful, but because they did not prove, beyond a reasonable doubt, that they promoted hatred or violence.
- Almost invariably, prosecutions under hate expression are challenged by freedom of speech provsions in the Charter.
- The provincial Attorney General’s consent is required to initiate a prosecution for the Criminal Code’s hate propaganda offences. This has led to too few charges being laid despite public interest in doing so.
- Generally, those involved in the decision to prosecute such as Attorneys-General, Crown prosecutors and the police are remarkably ill-informed and ill-prepared to prosecute those responsible for the hat propaganda offences which target identifiable groups.
Also, racial attacks do not seem to cause reputational damage to Nova Scotia and to the legislators involved. So there are political considerations — such as the cross-burning and its attendant moniker of “Mississippi North” that embarrassed the government enough to prosecute using the hate crime criteria.
But in other less notorious, but still egregious cases of bigotry and racism, the powers that be are much less prepared and much less willing to apply the Criminal Code provisions. That leaves many grievous cases of bigotry and racism free from legal sanction.
Basically, we are proposing:Criminal cases require a more prohibitive standard of proof than civil cases. The crown has lost several of the cses brought, not because the utterances weren’t hateful, but because they did not prove, beyond a reasonable doubt, that the expressions promoted hatred or violence.
How to send a message about Hate Crimes and Hate Expression
- We must “de-politicize” the hate sections of the Criminal Code and use them for day to day acts of racism, not only those that embarrass the authorities.
- We must ensure that the police, crowns, offices of public prosecution and Attorneys General receive much better training in the application of hate laws – so that we as a society use the laws to discourage, and end hate speech, and expressions of hate based on race, disability, religion and more.
Featured Image: Street Art by Italian artist Cibo, who covers pro-fascist or racist graffiti with paintings of fruit and vegetables. In this case, the message below says “Casapound – shield and sword of Italy”. Casapound is an ultra-right, pro-fascist organization active in Italy for the last 15 plus years.