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Prosecuting hate in Canada: Why, How, and When

Section 2 of the Canadian Charter of Rights and Freedoms grants all Canadians the fundamental right of freedom of expression – but as one young man in Markham, Ontario learned this week, the Charter also permits the enforcement of reasonable limits on expression.

 


18 year old Tristan Stronach, a grade 12 student, was charged under section 372(2) of the Criminal Code – making indecent communications – after his instructor had to conclude an online lesson after Stronach allegedly made racist remarks about the black community. The nature of the alleged comments, while not described specifically, has caused some to ask: why isn’t he being charged with a hate crime?

The answer is: because there is no specific “hate crime” offence in the Criminal Code.

Section 372(2) of the Criminal Code reads as follows:

Indecent communications

(2) Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication.

“But what about hate speech?”

Section 319(1) of the Criminal Code reads as follows:

Public incitement of hatred

319 (1) Everyone who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of:

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

 Wilful promotion of hatred

(2) Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

While it has been made clear that the allegations relate to racist comments towards a single identifiable group – the black community – charges under this section were likely not approved because the evidence is unable to support a conviction. The comments were not made in a “public” place, and while they were made in the virtual presence of a group of individuals, they did not promote hatred – i.e.,  the comments weren’t made in such a way that they would result in other individuals following suit and creating a breach of the peace as a result.

Notwithstanding the above, if the accused is convicted of making indecent communications, the court will consider to what degree bias, prejudice, or hate played a role. These are aggravating factors that could result in a harsher sentence. Through this legislative structure, these aggravating factors can be considered for a variety of offences – assault, theft, murder, and so on.

As Canadians, we are very fortunate to live in a country that allows us to speak, move, and exist freely – but cases like this are a reminder that equality reigns supreme.

Predictive Policing: Brave New World

In one of our previous posts, we discussed biometric technology and the role it plays in Canadian law enforcement. It is, however, only one of the “predictive” tools utilized by the police in relation to criminal investigations.


A new report by the Citizen Lab at the University of Toronto goes into alarming detail regarding growth of algorithmic policing methods, and how this technology compromises the privacy rights of Canadian citizens. The report is incredibly thorough and comprehensive, delving into how this controversial technique offends various sections of our Canadian Charter of Rights and Freedoms. Firstly, though, it is important that our readers understand what algorithmic policing is.

The overall success of any algorithm is the system’s ability to gather, store, and analyze data – with law enforcement’s methodology being no different.  A “location focused” algorithmic approach seeks to determine (predict) which areas are more likely to see criminal activity. The algorithmic system in these pursuits analyzes historical police data to identify geographical locations where crimes are, in theory, more likely to be committed. If this sounds familiar to you, then you’ve likely heard of, or accessed, the Vancouver Police Department’s GeoDash crime map – an online tool where you can navigate a map of the City of Vancouver by crime occurrence. You can choose from a variety of offences on the dropdown list, including homicide, break and enter, mischief, theft, and “offences against a person” which likely includes a variety of crimes such as sexual assault, assault causing bodily harm, and uttering threats. By looking at this map, you get an idea of which neighborhoods in Vancouver are most vulnerable to crime – except that it’s a little bit more sophisticated than that, and goes far beyond simply dropping a pin on the map. The public can see where the crime took place, but not who is alleged to have committed it.  The offender’s personal information is logged, in as much detail as possible, and becomes part of a larger system dedicated to predictive surveillance – i.e., it creates a profile of which individuals are more likely to commit a particular crime. This profile can be used to identify people who are “more likely to be involved in potential criminal activity, or to assess an identified person for their purported risk of engaging in criminal activity in the future”.

While this information is definitely concerning, there is another issue:  we have very little insight into the extent that this technology is being used. We know that the methods by which police gather information have historically discriminated against minority groups and those living in marginalized communities. This seems to guarantee that the VPD’s use of algorithmic investigative techniques relies on data that is often obtained through biased methods. We know that black and indigenous individuals are disproportionately represented in the correctional system, which can only mean that they are disproportionately represented in respect of these algorithms.

Although not everyone agrees that systemic racism exists within the VPD, the calls to address, unravel and mitigate the harm to marginalized groups continue to amplify. The idea that information collected under the apprehension of bias will not only remain on record, but will be used to further future investigations, is an indicator that Canadian law enforcement’s road to redemption will likely be a bumpy one.

Intimate Partner Violence: Epidemic of a Pandemic

It goes without saying that the judicial system has been hit hard by COVID-19. This isn’t wildly surprising – there was no solid emergency response strategy in place for a situation like this, and as a result, a significant amount of time and resources have been expended to create a sense of control amongst the chaos.


It was acknowledged early on that certain individuals in the justice system would be disproportionately effected – accused persons in custody awaiting trial or sentencing, residents of remote communities that operate under a court circuit, and, of course, the victims in cases where there is uncertainty of if or when the case proceeds at all.

Since the World Health Organization declared a pandemic in response to COVID-19, law enforcement has tried to adapt where required. One of the most profound changes relates to the processing of newly accused individuals – and it may provide context into why intimate partner violence has surged during the pandemic. Between April 6 and May 6, 2020, 8 tragic incidents of domestic violence against women across Canada resulted in fatalities. There is, of course, no doubt about the fact that violence in relationships occurred before COVID-19, and will continue long after the pandemic is declared over – but there are aspects to a surge in intimate partner violence that are directly linked to the virus and to the policies that have been implemented when trying to process, manage, and supervise offenders.

Hundreds of accused persons awaiting trial in custody have been released, with chargeable offences ranging from assault, fraud, drug trafficking and beyond. Again, not surprising – as we’ve discussed previously on the blog, the correctional system serves as the perfect breeding ground for the virus, and it would be beyond cruel and unusual to take no action at all to protect those that are considered to be among the most vulnerable.

It’s the way that law enforcement has chosen to operate on a “catch and release” scheme in cases that would, under normal circumstances, require a bail hearing – and probably a highly contested one at that – that has likely contributed to domestic violence rates during COVID-19. Due to concerns about the nature of the virus and its ability to spread quickly, bail hearings have occurred less frequently, even with video-conferencing and telephone conferencing put into effect to streamline the process and protect the health of all parties involved. Instead of a bail hearing, an accused is more likely to be released on an Undertaking. The Undertaking may require that the accused check in with a bail supervisor weekly – something that is generally done on an in-person basis, where the most value lies in a face-to-face meeting – by telephone instead.

Aside from that, the “stay at home” order has, unintentionally, resulted in many victims of violence becoming prisoners in their homes. Public services like shelters and safe houses are stretched beyond capacity, and for some (especially people with underlying health conditions and people with children) entering into such an environment during a virus pandemic might seem even less tolerable than continuing to cohabitate with their abuser.

As with the other aspects of our lives – returning to work and school, chatting with our neighbors, planning vacations – the judicial system will, in one way or another, return to full operational capacity. But for those who have suffered the effects of intimate partner violence during the pandemic, there may be no return to the way things once were.

Psychedelics and Automatism

“No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”


He was a student and Captain of Mount Royal University’s hockey team – but that changed on January 13, 2018, after taking a large dose of magic mushrooms.

Shortly after ingesting 4 grams of mushrooms at a house party, Matthew Brown took off all of his clothing and disappeared into the freezing night. Eventually, he came upon the home of a Mount Royal University professor that he had never met before. He broke into her home and beat her with a broken broom handle, leaving her with severe injuries. After leaving her residence, he broke into another home where he was eventually apprehended by the police. 

On March 2, 2020, he was acquitted after mounting a successful defence of “non-insane automatism” resulting from severe self-intoxication.

Mr. Brown was acquitted and walked out of court a free man. His actions were found to be involuntary – but not by reason of mental disorder. His defence of non-insane automatism resulting from severe self-intoxication was only available after a pre-trial ruling in which a judge found that Section 33.1 of the Criminal Code, prohibiting self-intoxication as a defence, was unconstitutional.

Non-insane automatism and insane automatism both involve an Accused person that was unaware of the consequences of their actions at the time of the offence, and therefore could not form intent required to prosecute the offence.

In Mr. Brown’s case, his automatism ended when the effects of the drugs wore off, and he was left with no memory of the event. Since his actions were not attributed to a disease that would have recurring symptoms, a Not Criminally Responsible according to Mental Disorder (NCRMD) finding would have been inappropriate.

A finding of NCRMD relates to automatism as a consequence of a mental disorder. Unlike automatism resulting from intoxication, it does not result in an acquittal. NCRMD is most commonly seen in cases where an Accused suffers from severe mental illness, such as schizophrenia. Across Canada, the number of Accused deemed NCRMD is small, however, media attention on these particular cases often results in public outrage.

After a judge has determined that an Accused is NCRMD, the case is usually handed over to the Review Board (governed by Province/Territory) where there are three possible outcomes:

  • Absolute Discharge
  • Conditional Discharge
  • Detention in a hospital

While most cases do end up under the authority of the Review Board, the Court of hearing has the discretion to proceed to disposition if it feels appropriate in the circumstances. If the Court orders an Absolute Discharge (the only available option when the Accused has been found not to pose a significant risk to the public), the matter is concluded. If the Court orders a conditional discharge, or detention in a hospital, the Review Board must review the matter again with 90 days. In any circumstance, the Court or Review Board must impose whichever sentence is the least onerous and least restrictive on the Accused, all while balancing protection of the public and the interests, liberty and dignity of the Accused. There have been success stories, (which may again cause unnecessary alarm to the public) that demonstrate how effective rehabilitation of mentally ill offenders is far from hopeless. It is also important to note that the statistics surrounding NCRMD cases show that the prevalence of an NCRMD finding in relation to violent offences are low. 

Justice via Vigilante – Justice Denied, Reward Scanty

Justice via Vigilante – Justice Denied, Reward Scanty

A vigilante group based out of Surrey, B.C., has been making headlines lately for their efforts in identifying and publicizing child predators to the media via video. It’s a spin-off of Dateline’s “To Catch a Predator”.

The videos, which are publicly posted to the group’s Facebook and Youtube accounts, display the real-time encounters had between members of the group and the individual that they have led there with false promises of sexual relations with an underage person, after chatting online about it.

The encounters are brief, lasting only a few minutes at most. The exchange between the two parties consists of accusations from one side, and flat out denials from the other. The subject of the Creep Catcher’s “investigation” attempts to shield his face before turning and running in the other direction, continually denying the allegations. What happens beyond that point is unknown.

From what I’ve seen, the public seems to be pleased with the endeavors of Creep Catchers. The videos certainly provide shock value – generally, the public does not play a role in, or even have the opportunity to witness the apprehension of a suspected pedophile – and for good reason.

The investigations that are conducted with respect to these offences are complex, calculated and require significant resources and manpower. The Integrated Child Exploitation Unit of the RCMP works with Interpol and police agencies around the world to gather, sort, and analyze information that advances their efforts in identifying, charging, and convicting individuals of child-related offences such as the Possession and Distribution of Child Pornography.

There are tactical strategies that require a high degree of skill and experience to be carried out effectively. The process of gathering evidence before an arrest and charge approval is paramount to the success of the investigation – in cases like these, proper identification of the suspect can take a significant amount of time. And this is where the work done by the RCMP and the work done by Creep Catchers become astoundingly diverse. Creep Catchers does not have the resources, funding, experience or skill to be meddling in these matters. There are several risks that come to mind:

1) Meeting these individuals in a public place, at a busy time of day, poses a serious risk to innocent bystanders in the area. Creep Catchers does not know if the individuals they are liaising with are violent or mentally ill. Innocent people could be caught in the cross-hairs of an encounter that quickly gets out of hand;

2) The police may already be conducting an investigation on an individual who has been sought out by Creep Catchers. This could lead to that entire investigation collapsing;

3) The very real possibility that they may wrongfully accuse someone of these crimes. The repercussions of being wrongfully blamed could be permanent. It is extremely difficult to exonerate someone on such allegations.

While their intentions may be good, the ends do not justify the means. This work is best left to the police.

Accessing, distributing, and making child pornography available are some of the most serious offences in the Criminal Code. There are new mandatory minimum jail sentences for these offences, details of which can be found here. Aside from a custodial sentence, someone convicted of one of these offences will almost definitely be required to register as a sex offender, which comes with lifelong consequences.

Our offices frequently handle cases with similar allegations. If you have been charged with one of these offences, contact our office to retain a criminal lawyer who can assist in navigating you through the criminal justice system with your best interests in mind.