Public incitement of hatred charges, convictions rare, experts say following arrest of Flin Flon-area women
As three people from the Flin Flon, Man., area face charges of public incitement of hatred following comments on Facebook proposing "shoot a Indian day," experts say charges for the offence are rare and convictions are few and far between.
Data from Statistics Canada shows that in the past five years, the charge has been laid seven times in Manitoba. Three of those charges were dropped.
The charge was laid twice in 2017, and dropped in both of those cases.
In all of Canada, Statistics Canada data shows 53 counts of the charge were laid in 2015 and 68 in 2016. The data didn't indicate how many of those charges resulted in convictions.
"These charges are rare and prosecutions even more rare in Canada," said Helmut-Harry Loewen, a former University of Winnipeg sociology professor and an anti-fascism activist.
"That tells me that the RCMP have some confidence that they have a fairly strong case to file such charges and that they have a presumption that they have a potential conviction in this case," Loewen said.
Two women — a 32-year-old from Flin Flon and a 25-year-old from nearby Denare Beach, Sask. — were arrested by Manitoba RCMP earlier this week for uttering threats and public incitement of hatred after the Facebook conversation, which RCMP said started with complaints about a vandalized car and progressed to "very hateful language."
A third arrest is pending for the same charges, RCMP said.
RCMP haven't confirmed the identities of the women, but the details they have released match those involving an online conversation between Facebook users Destine Spiller and Raycine Chaisson, in which Spiller said she would "kill some Indians when I get home," and Chaisson responded suggesting a "24 hour purge."
Justice minister must approve charge
The charges haven't been sworn yet, and the public incitement of hatred charge requires approval from Manitoba's justice minister before it can be formally laid.
Mark Freiman, the former deputy attorney general of Ontario who prosecuted Holocaust denier Ernst Zundel, said that added layer of oversight — which applies across the country — could be one reason the charges are rare.
Hateful messages are one step down the road to actual violence and actual discriminatory behaviour.- Mark Freiman
"That makes it doubly difficult, because the attorney general has to consider whether it's in the public interest to bring the charge, and often the attorney general will decide that it's not," Freiman said.
In the past, some have argued that filing the charges serves to bring more attention to offenders and their beliefs, Freiman said. But he doesn't agree with that.
"History shows that before mass movements become violent, they recruit through various means of propaganda, and that incitement of violence is always a precursor to the violence itself," he said.
"Hateful messages are one step down the road to actual violence and actual discriminatory behaviour."
Convictions difficult to secure
Even once charges are laid, Freiman said it's difficult to get a conviction for inciting hate. To prove the charge in court, prosecutors are required to prove the intent of the accused to incite hatred, and that means proving their mental state at the time, he said.
"It's a big deal to send people to jail, as a start, and that's for good reason. The criminal process is a very serious matter. You have to prove guilt beyond a reasonable doubt," he said.
Criminal Code charges aren't the only way to deal with hate crime, Loewen noted. Even if those charges aren't laid, human rights legislation could be applied, provided it exists in the province where the offence happened.
Freiman and Loewen both pointed to Section 13 of the Canadian Human Rights Act, which was repealed by the Conservative government in early 2013, as a helpful tool for communities dealing with hate-related human rights claims online in the past.
The provision allowed individuals to bring a complaint to an administrative tribunal, which could result in offenders being found guilty of regulatory offences and could require them to remove any hateful posts or website.
Freiman said the rule had a focus on remediation and education, and was a less drastic tool than the Criminal Code charge.
'Explosion of hate speech online'
Both experts also said the case highlights the need for a more proactive approach to hateful attitudes online.
"We've seen especially in the past 2½ or three years — this is without an exaggeration — a veritable explosion of hate speech online," Loewen said.
"And the police need to be monitoring such cases much more closely and proceeding with many more cases in the courts."
Freiman said he'd like to see a regulatory regime that could work with internet providers to keep track of hatred online, as well as other negative aspects of online communication like efforts to influence elections through Facebook.
"This can't work with the old paradigm of looking just for the single actor, the speaker, because the speaker can be somewhere in China or in Bulgaria. You're never going to find him," Freiman said.
Setting something like that up would require international co-operation, working with internet service providers and the Canadian Radio-television and Telecommunications Commission, Freiman said. But he said it's a necessary step to protect society in the era of free-flowing communication online.
"It's urgent today. It was urgent yesterday. It was urgent the day before. Every day the urgency builds," he said.
"I know there are working groups throughout government that are looking at this but every day that passes the urgency builds, and one day it will be too late."
With files from Jillian Taylor and Aidan Geary