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April 12, 2004


I am trying to work through my thoughts about Canadian laws concerning incitement to hatred and genocide.

Let us say a man is attacked and killed by someone who had planned the attack and stated plainly the attack was meant to kill. This would be first degree murder under Canadian criminal law. Obviously, intent is not always so clear but this is a thought-experiment so suspend your disbelief on that issue for the moment. Now let us say the man was Jewish and that the murderer had stated plainly the attack was motivated by the intent to either kill a Jewish man or to kill the man because he was Jewish. This intent would be grounds under Canada's hate crimes legislation to consider a harsher sentence. My more libertarian colleagues in the blogosphere have argued this second intent should not be considered as a factor in the murder. From that libertarian viewpoint, it is only the intent to kill and not the reason for that intent which should be taken into account in criminal charges or sentencing following a criminal conviction.

Now let us say the attacker was a member of al-Qaeda, an organization with the repeated, plainly stated intent to murder Jewish people (and a list of others). Let us say both the murderer and the victim are Canadian citizens for the sake of keeping this thought-experiment simple. Should we treat this crime like any other murder? Or does its status as an act of terror transform the act from one of simple murder to something that needs to be treated much more forcefully? If not, why not? If so, why would the identity of the victim matter in this instance and not in others? Or is the intent to cause "terror" another instance in itself?

Posted by Ghost of a flea at April 12, 2004 10:23 AM

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? Equal opportunity hatred? from Classical Values
According to John Leo, it will soon be a crime to state negative opinions about homosexuality: Bill C-250, a repressive, anti-free-speech measure that is on the brink of becoming law in Canada. It would add "sexual orientation" to the Canadian... [Read More]

Tracked on April 12, 2004 07:13 PM


There is another way to look at this, I think. The system of (relevant) laws is a trade-off that society makes; constraints on individual action believed to sufficiently improve the lives of members, on the whole. Murder/manslaughter/etc is just at an extreme end of these constrained actions.

When you look only at your two individuals, you can't differentiate based on intent very easily. However, in the case where the perpetrator is a member of an group with identifiable policies contrary to the societies interests, the situation is a different. The individual action has equivalent effect on the victim regardless of the intent (in this case), but the group's actions have far more potential effect on society than the individual perpetrator. Hence increased severity of response can be considered as deterrent for groups, not individuals.

This is the same reason that legislative targeting of organized crime is potentialy useful.

Posted by: cymonk at April 12, 2004 03:04 PM

I agree this is always about judging the balance of individual liberty and the need to protect society as a whole. I suppose one way to approach the problem I have posed is to introduce a separate charge of membership in a criminal organization. I am intrigued by your introduction of legislation targeting racketeering (most notably the American RICO statutes) into the discussion. I am going to have to think about that aspect of intent as well.

Posted by: Flea at April 12, 2004 06:22 PM

In your first example murder is still murder and as such it shouldn't matter, from the criminal law perspective, what intent is involved or whether the victim is, in fact Jewish. Because once the issue of victim identity comes into play you get all sorts of sticky questions: What if the victim only "looked Jewish" but in fact was Palestinian, what if he was a non-observant Jew? What if the murderer was an anti-Semitic moron and didn't care.

However, it is quite possible that the society might take additional steps against the organization in the second example -- traditionally this is called war and is not directed at single individuals.

To date war has been seen as a conflict between nations; al-Qaeda has succeeded in extending that definition.

Posted by: Jay Currie at April 12, 2004 06:45 PM

My primary leeriness with including intent on criminal acts is that it can turn into a mind-reading contest, one which the state tries to assert what's going on in someone's head.

Still, we have little hesitation about doing it in other aspects of killing. Negligent homicide is treated far more lightly than a death during commission of a felony, let alone an intentional, directed killing.

My concern is less over the intent applied to actual crime, and more over punishing expression of opinion where no actual act of physical violence has occured.

Posted by: *** Dave at April 13, 2004 09:11 AM

I have been thinking about radio stations: RTS in Belgrade and RTLM and Radio Rwanda. The first was used by the fascist government of Serbia until it was destroyed by American lead NATO air strikes as part of the effort to prevent ethnic cleansing in Kosovo. The second and third were private and public broadcasters that were left intact despite UNAMIR Commander, General Dallaire's pleas to use force to stop their broadcasts at the outset of the Rwandan genocide.

The usual suspects accused NATO of a war crime for targeting a radio station even as they were silent on the pogrom being carried out against Kosovar Albanians. And the grey men at the UN and in Washington (and elsewhere) advised against attacking Rwandan radio as to do so would violate international broadcasting treaties.

I have no doubt these all too typical examples of selective obeisance to "international law" and respect for the principle of freedom of expression were correct as far as they went. They were also morally wrong. So are laws that privilege freedom of expression when that expression includes giving directions to gatherings of Tutsi "cockroaches". It would take a naive soul not to understand what the mobs understood clearly those directions to imply and enable.

I am glad that radio station in Belgrade was bombed out of existence. If only General Dallaire had done the same to its equivalents in Rwanda.

Posted by: Flea at April 13, 2004 10:15 AM

I agree. Freedom of expression cannot be absolute -- libel laws are another good example.

The question becomes where to draw the line. Inciting people to kill sounds beyond the Pale. What about inciting people to disapprove? What if someone takes that to mean kill?

Of course, then you've got Murder in the Cathedral ...

Posted by: *** Dave at April 13, 2004 02:26 PM

I could not agree more, Dave. I think that sums up the problem of having these laws on the books in the first place. Do we trust people to work things out in public debate or do we trust the courts to make those decisions for us? Canadian law tends to choose the latter alongside our systematic reliance on regulation of what television we are allowed to watch and books we are allowed to read. And inevitably, there is selective, prejudicial enforcement of the laws on the books. I think this is where the religious right have some cause for concern as their views tend not to be represented by the tiny elite that runs this country. I will be more sympathetic to those who hold those views the minute they stand up for the rights to expression of those with whom they disagree (purveyors of lesbian pornography, as one example of people whose freedom of expression has been regularly curtailed by the Canadian government).

My argument in favour of Bill C-250 is grounded mainly in the question of equity. Let us imagine Canadian law currently barred incitement on the grounds of religion, race and ethnicity, sexual orientation, etc. but excluded Jews. Now imagine a bill was introduced including Jews under laws that had been on the books since 1970. Now imagine people claiming to oppose the bill on the ground it would prevent them from publishing bits of the New Testament that might be construed as hateful toward Jewish people. Now imagine those same opponents regularly publishing claims that Jews molest children, are diseased, greedy, etc. and so forth. * That * is the situation with which we are faced in Canada. The only difference is that the minority in question is one all too many people are still all too ready to preclude from the same legal protections afforded to the rest of Canadian society.

Posted by: Flea at April 13, 2004 03:05 PM