Liberals’ Women’s Commission wants hate speech laws to include ‘gender’

National Post
January 9, 2012
by Joseph Bream

Canada should expand the scope of hate propaganda laws to include gender hatred, according to a motion at this week’s Liberal convention in Ottawa.

The proposal by the National Women’s Liberal Commission would amend the criminal laws against “advocating genocide” and “wilful promotion of hatred” by adding “gender” to the list of victim groups, which now includes colour, race, religion, ethnic origin and sexual orientation.

Mary Pynenburg, policy head and incoming NWLC president, said this would close a loophole, and came from “a general concern that gender-based violence sometimes isn’t taken seriously by law enforcement.”

“When it’s women, it’s treated as mischief,” she said.

The attempt has been made before, for example in a failed 1987 pornography bill. In 2010, Borys Wrzesnewskyj, a Liberal MP, urged Parliament to add “sex, the legal term for gender,” but his private member’s bill died with that session of Parliament.

Even if this latest effort is successful, the practical effect is likely to be minimal.

Canada’s hate propaganda laws are used only in the most extreme cases, and only with government consent. Only one person has been charged with advocating genocide.

Instead, the issue of hate motivation usually comes up on sentencing, where it can be an aggravating factor. In such cases, the law offers stiffer penalties for numerous hateful motivations, including “race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.”

The addition of “gender” would not resolve all the peculiarities of these hate propaganda laws, which also ignore age, disability, or national origin.

Bruce Ryder, a professor at Osgoode Hall Law School and head of its anti-discrimination intensive program, said such proposals have “a long pedigree.”

Rather than making changes “on a piecemeal and ad hoc basis,” Canada should take a “principled” approach and “prohibit hate propaganda on the same list of grounds as we prohibit discrimination generally,” he said.

Canada’s hate propaganda laws originally applied to hatred based on colour, race, religion or ethnic origin, Prof. Ryder said. But with the passage of the Charter of Rights & Freedoms in 1982, this list “immediately became anachronistic, as the equality rights in the Charter protect a more extensive list of vulnerable groups.”

Sexual orientation was added to the hate propaganda sections in 2004, after a long activist campaign.

The NDP has a similar proposal to add gender identity and gender expression to the prohibited grounds of discrimination in the Canadian Human Rights Act, which includes “sex,” but not “gender.”

Richard Moon, an expert on hate laws and freedom of expression at the University of Windsor, said he agreed the term should be added.

“It might be interesting to think about why it has been omitted in the past — because sexism is so prevalent as to be invisible, or because we are concerned about the law’s ability to separate familiar forms of sexism from gender hatred,” he said. “Neither really can explain the omission though.”