A Gesture of Criminal Law: Jews and the Criminalization of Hate Speech in Canada

Authors

Kenneth Grad, Osgoode Hall Law School of York University (Student Author)

Document Type

Article

Abstract

In June 2020, the fiftieth anniversary of the criminalization of hate speech in Canada passed with little notice. Since their enactment in 1970, the hate-speech provisions in the Criminal Code have seldomly been enforced. They are commonly viewed as ineffective. In light of this half-century of experience, it is beneficial to re-examine the history of the criminalization of hate speech for lessons this story may hold. This article does so by exploring the genesis of the legislation from the perspective of the Canadian Jewish community. It focuses on the Jewish community because Canadian Jewry—especially the Canadian Jewish Congress—was the primary driver behind the bill. Accordingly, a focus on the Jewish community is essential to understanding why hate speech was criminalized, how the language of the provisions was decided upon, and why they are infrequently invoked. Commentators have acknowledged Jewish efforts, but the singular contribution of Canada’s Jews has not received full attention. This article fills this gap. Relying extensively on archival research and oral history, this article’s central claim is that the main goal of the legislation was not to prosecute hatemongers. Rather, its purpose was predominantly symbolic: to enshrine equality principles in the criminal law and to send the message that Canada was a multicultural and tolerant society. In fact, Congress leadership long resisted this type of legislation and came to support a group libel provision only under intense pressure from its community grassroots, especially Holocaust survivors, who demanded a forceful response to rising neo-Nazism. However, Congress and other advocates of the bill were focused on the symbolism of getting the legislation passed and were unconcerned with how it would later be used. In doing so, they ignored the vigorous protests of Holocaust survivors who accurately predicted that the law would be difficult to implement. At bottom, this is a tale of the risks and potential benefits of the symbolic use of the criminal law.

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Grad, Kenneth. "A Gesture of Criminal Law: Jews and the Criminalization of Hate Speech in Canada." Osgoode Hall Law Journal 59.2 (2022) : 375-427.
DOI: https://doi.org/10.60082/2817-5069.3782
https://digitalcommons.osgoode.yorku.ca/ohlj/vol59/iss2/4

References

1. Examples abound. See e.g. "COVID-19 pandemic unleashing 'tsunami of hate,' says UNI chief," CBC News (8 May 2020), online: https://www.cbc.ca/news/world/coronvirus-un-fear-xenophobia-1.5561069; Julie Posetti & Kalina Bontcheva, "Disinfodemic: Deciphering COVID-19 disinformation" (2020) at 3, online (pdf): UNESCO https://en.unesco.org/sites/default/files/disinfodemic_deciphering_covid19_disinformation.pdf; Irene Connelly, "Online anti-Semitism thrives around coronavirus, even on mainstream platforms," The Forward (11 March 2020), online: https://forward.com/news/441421/anti-semitic-coronavirus-response-thrives-online-even-on-mainstream/; Gerald Chan, "The virus of anti-Asian prejudice," Toronto Star (13 April 2020), online: https://www.thestar.com/opinion/contributors/the-virus-of-anti-asian-prejudice/article_37fe16b7-6bfc-5819-94cc-4891bb22b66f.html . See also Kenneth Grad & Amanda Turnbull, "Harmful Speech and the COVID-19 Penumbra" (2021) 19 CJLT 1.

2. For a rare exception, see Jason Proctor, "The difficult history of prosecuting hate speech in Canada," CBC News (13 June 2020), online: https://www.cbc.ca/news/canada/british-columbia/racists-attacks-court-hate-crimes-1.5604912.

3. For the hate-speech provisions, see Criminal Code, RSC 1985, c C-46, ss 318(1), 319(1), 319(2) [Criminal Code] (in addition, ss 320 and 320.1 authorize in rem proceedings against hate propaganda).

According to Statistics Canada's Integrated Criminal Court Survey, between the 2009/2010 and 2017/2018 fiscal years, there were 53 completed cases (with "completed case" defined as one or more charge(s) against an accused person that reached a final decision in court or resulted in a guilty plea) in adult and youth court where the most serious charge was classified as a hate-crime offence. Hate-crime offences consist primarily of charges under ss 318 and 319, but also include a small percentage of charges under s 430(4.1) (mischief against religious property). Of these 53 cases, 23 ended in a finding of guilt (43%).

To give a sense of proportion, during the same period approximately 3.74 million total cases reached a decision in adult and youth court. Thus, the percentage of hate-crime cases out of all completed cases was approximately 0.0014%. The rate of conviction for hate-crime offences was even smaller-approximately 0.0001% of all findings of guilt-reflecting the fact that findings of guilt in hate-crime cases are less frequent than the average rate across all offences. See Greg Moreau, "Police-reported hate crime in Canada, 2018" (26 February 2020), online (pdf): https://www150.statcan.gc.ca/n1/pub/85-002-x/2020001/article/00003-eng.pdf.

"Adult criminal courts, number of cases and charges by type of decision" (last modified 19 October 2021), online: Statistics Canada https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510002701.

"Youth courts, number of cases and charges by type of decision" (last modified 19 October 2021), online: https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510003801. See also Richard Moon, Putting Faith in Hate: When Religion is the Source or Target of Hate Speech (Cambridge University Press, 2018) at 25, n 15 (between 1994 and 2004 there were only 93 prosecutions under s 319, resulting in 32 convictions).

4. William Kaplan, "Maxwell Cohen and the Report of the Special Committee on Hate Propaganda" in William Kaplan & Donald McRae, eds, Law, Policy, and International Justice: Essays in Honour of Maxwell Cohen (McGill-Queen's University Press, 1993) 243 at 266 https://doi.org/10.1515/9780773564275-011. Kaplan does note, however, that the legislation may be deemed a success if its goals are more broadly conceived, which is an argument I return to in this article's conclusion in Part V, below.

5. See e.g. Moon, supra note 3 at 25-26; Andrea Huncar, "Far-right extremists getting bolder as threatening behaviour goes unchecked, police warned," CBC News (11 May 2020), online: https://www.cbc.ca/news/canada/edmonton/ramadan-bombathon-edmonton-mosque-far-right-extremists-police-charges-1.5564323; Franklin Bialystok, Delayed Impact: The Holocaust and the Canadian Jewish Community (McGill-Queen's University Press, 2000) at 168; Jacky Habib, "Far-right extremist groups and hate crime rates are growing in Canada," The Passionate Eye (n.d.), online: CBC News http://web.archive.org/web/20210201094729/http:/cbc.ca/passionateeye/features/right-wing-extremist-groups-and-hate-crimes-are-growing-in-canada.

6. See e.g. Maxwell Cohen et al, Report of the Special Committee on Hate Propaganda in Canada (Queen's Printer and Controller of Stationery, 1966) at 27 [Cohen Committee Report].

7. See e.g. Tavia Grant, "Hate crimes in Canada surge with most not solved," The Globe and Mail (30 April 2019), online: theglobeandmail.com/canada/article-hate-crimes-in-canadasurge- with-most-not-solved; Habib, supra note 5; "Online hate speech in Canada is up 600 percent. What can be done?" Maclean's (2 November 2017), online: https://macleans.ca/politics/online-hate-speech-in-canada-is-up-600-percent-what-can-be-done/; League for Human Rights, "Annual Audit of Antisemitic Incidents 2020" (2021) at 11, online (pdf): B'nai Brith Canada https://drive.google.com/file/d/1IqrqxVoO0tCXxMxvC0_12rsSn5xPgMpu/view [www. bnaibrith.ca/antisemitic-incidents]. B'nai Brith, which has published an annual audit of total antisemitic incidents in Canada since 1982, reported that antisemitic incidents reached a record high in 2020 for the fifth consecutive year.

8. "The Hate Propaganda Amendments: Reflections on a Controversy" (1971) 9 Alta L Rev 103 at 112 [Cohen, "Reflections on a Controversy"]. https://doi.org/10.29173/alr2183

9. See e.g. Jeremy Waldron, The Harm in Hate Speech (Harvard University Press, 2012); Anthony Lewis, Freedom for the Thought That We Hate: A Biography of the First Amendment (Basic Books, 2007).

10. [1990] 3 SCR 697 [Keegstra].

11. See e.g. Walter S Tarnopolsky, "Freedom of Expression v. Right to Equal Treatment: The Problem of Hate Propaganda and Racial Discrimination" in Special Issue, Centennial Edition (1967) UBC L Rev 43; BG Kayfetz, "The story behind Canada's new anti‐hate law" (1970) 4 Patterns of Prejudice 5 [Kayfetz, "The story behind"]; Mark R MacGuigan, "Hate Control and Freedom of Assembly" (1966) 31 Sask Bar Rev 232 [MacGuigan, "Hate Control"]; Mark R MacGuigan, "Proposed Anti-hate Legislation - Bill S-5 and the Cohen Report" (1967) 15 Chitty's LJ 302 [MacGuigan, "Bill S-5 and the Cohen Report"]; Robert E Hage, "The Hate Propaganda Amendment to the Criminal Code" (1970) 28 UT Fac L Rev 63; Cohen, "Reflections on a Controversy," supra note 8; Stephen S Cohen, "Hate Propaganda-The Amendments to the Criminal Code" (1971) 17 McGill LJ 740.

12. See Gerald Tulchinsky, Canada's Jews: A People's Journey (University of Toronto Press, 2008) at 460 https://doi.org/10.3138/9781442687486

Gerald Tulchinsky, Branching Out: The Transformation of the Canadian Jewish Community (Stoddart, 1998) at 323

Allan Levine, Seeking the Fabled City: The Canadian Jewish Experience (McLelland & Stewart, 2018) at 277-78 [Levine, Seeking]

Ira Robinson, A History of Antisemitism in Canada (Wilfried Laurier University Press, 2015) at 133-34 https://doi.org/10.51644/9781771121675

Harold Troper, The Defining Decade: Identity, Politics, and the Canadian Jewish Community in the 1960s (University of Toronto Press, 2010) at 99, 106-07. https://doi.org/10.3138/9781442686656

13. See e.g. Sanjeev S Anand, "Expressions of Racial Hatred and Racism in Canada:

An Historical Perspective" (1998) 77 Can Bar Rev 181 at 184-87

Ronda Bessner, "The Constitutionality of the Group Libel Offences in the Canadian Criminal Code" (1987)

Bruce P Elman, "Combatting Racist Speech: The Canadian Experience" (1994) 32 Alta L Rev 623 at 625-26 https://doi.org/10.29173/alr1155

Martine Valois, "Hate Propaganda, Section 2(b) and Section 1 of the Charter: A Canadian Constitutional Dilemma" (1992) 26 RJT 373 at 378-85.

17 Man LJ 183 at 183-86; Bruce P Elman, "Combatting Racist Speech: The Canadian Experience" (1994) 32 Alta L Rev 623 at 625-26; Martine Valois, "Hate Propaganda, Section 2

(b) and Section 1 of the Charter: A Canadian Constitutional Dilemma" (1992) 26 RJT 373 at 378-85.

14. See e.g. Ross Lambertson, Repression and Resistance: Canadian Human Rights Activists 1930-1960 (University of Toronto Press, 2005) at 196-242; Carmela Patrias & Ruth Frager, "'This is Our Country, These Are Our Rights': Minorities and the Origins of Ontario's Human Rights Campaigns" (2001) 82 Can Historical Rev 1; James W St G Walker, "The https://doi.org/10.3138/CHR.82.1.1

'Jewish Phase' in the Movement for Racial Equality in Canada" (2002) 34 Can Ethnic Studies 1

Irving Abella, "Jews, Human Rights, and the Making of a New Canada" (2000) 11 J Can Historical Assoc 3. https://doi.org/10.7202/031129ar

15. Supra note 14 at 241-42.

16. Supra note 4.

17. See ibid at 244-56.

18. Ibid at 247.

19. (UBC Press, 2017).

20. Ibid at 30-55.

21. Ibid at 51-52.

22. Supra note 5.

23. Ibid at 6.

24. Ibid at 165.

25. Ibid at 153.

26. Ibid at 147, 167.

27. [1951] SCR 265 [Boucher].

28. Ibid at 284-85, Rand J.

29. See Criminal Code, supra note 3, s 59(2) (seditious libel is defined as "a libel that expresses a seditious intention").

30. See Boucher, supra note 27 at 283, Kerwin J; Ibid at 288-89, Rand J; Ibid at 296, 301, Kellock J; Ibid at 315, Estey J; Ibid at 331, Locke J.

31. Ibid at 276, Rinfret CJ.

32. Ibid at 289, Rand J.

33. See Levine, Seeking, supra note 12 at 338-45. Congress lost its position of primacy around the early 2000s and was dissolved in 2011.

34. See Zach Paikin & James Gutman, "It's time to bring back Canadian Jewish Congress," Canadian Jewish News (20 November 2015), online: https://thecjn.ca/perspectives/opinions/its-time-to-bring-back-canadian-jewish-congress/.

35. See Troper, supra note 12 at 30-32; Levine, Seeking, supra note 12 at 339. Hayes was executive director from 1942-1959 and national executive vice president from 1959-1974. See "Saul Hayes Dead at 73," Jewish Telegraphic Agency (15 January 1980), online: https://www.jta.org/archive/saul-hayes-dead-at-73.

36. Bialystok, supra note 5 at 5.

37. Although I have focused on the post-war period, Congress's advocacy for criminal legislation to combat anti-Semitic speech goes back further. In the 1930s, in light of a rise in anti-Semitic literature produced by Canadian fascist groups, the CJC asked the federal government on several occasions to enact legislation to combat racial hatred, including amending the Criminal Code. A legislative proposal submitted by Congress in 1935 suggested an amendment to then section 201 of the Criminal Code, which outlawed the disturbance of persons assembled for religious worship (an analogous provision is now s 176(2)). Congress reported that the Law Committee of the Senate approved the amendment, but the legislation was abandoned after a meeting of the Council of Ministers. See David Rome, Clouds in the Thirties: On Antisemitism in Canada 1929-1939, vol 2 (CJC National Archives, 1977) at 60, 68- 69. In 1937, Congress wrote directly to Prime Minister William Lyon Mackenzie King to request that legal measures be adopted which would make libellous accusations against Jews and other groups a criminal offence. King forwarded the request to Minister of Justice Ernest Lapointe, who dismissed the idea. See Letter from HM Caiserman to WL Mackenzie King (25 August 1937), Montreal, Canadian Jewish Archives (CJC ZA 1937, Box 1, File 16)

Letter from WL Mackenzie King to E Lapointe (10 September 1937), Montreal, Canadian Jewish Archives (CJC ZA 1937, Box 1, File 16)

Confidential Memorandum of AA Heaps (17 September 1937), Montreal, Canadian Jewish Archives (CJC ZA, Box 2, File 23A).

38. House of Commons, Special Committee on Bill No 93, Evidence, 21-7, vol 1, No 2 (3 March 1953) at 58 (Saul Hayes) [House of Commons, Bill No 93].

39. Philip Girard, Bora Laskin: Bringing Law to Life (University of Toronto Press, 2005) https://doi.org/10.3138/9781442671522

at 248, 266-67.

40. See Criminal Code, supra note 3, s 9.

41. See House of Commons, Bill No 93, supra note 38 at 57 (Saul Hayes); R v Zundel, [1992] 2 SCR 731 at 769-70.

42. House of Commons, Bill No 93, supra note 38 at 59 (Saul Hayes).

43. Boucher, supra note 27 at 276, Rinfret CJ.

44. House of Commons, Bill No 93, supra note 38 at 62 (Bora Laskin).

45. It is unclear why Congress's suggestions were not adopted. For further explanation, see Kaplan, supra note 4 at 269, n 4. Kaplan reports that "[i]n early 1953 the federal government actually considered some draft legislation. However, the consideration was brief, and the decision was made not to proceed" (ibid).

46. See Letter from Ben Kayfetz to J Alex Edmison (13 June 1952), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 5).

47. See e.g. W Gunther Plaut, Unfinished Business: An Autobiography (Lester & Orpen

Dennys, 1981) at 243.

48. See Michael Friesen, "The Joint Public Relations Committee Series at the Ontario Jewish Archives: Some New Questions" (2019) 28 Can Jewish Studies 125 at 126. In 1962, the JPRC changed its name to the "Joint Community Relations Committee, Central Region." For simplicity, it will be referred to as the JPRC throughout this article. In the late 1970s, B'nai Brith ended its relationship with the JPRC, although the word "joint" was not dropped until 1991. The JPRC was dissolved along with the Congress in 2011 (ibid at 127). https://doi.org/10.25071/1916-0925.40150

49. Ibid at 126.

50. Lambertson, supra note 14 at 201.

51. See Girard, supra note 39 at 248.

52. Bialystok, supra note 5 at 139.

53. Friesen, supra note 48 at 126; Girard, supra note 39 at 253.

54. Patrias & Frager, supra note 14 at 14-19; Walker, supra note 14 at 5-15. With the assistance of Bora Laskin, the JPRC also sponsored legal challenges to the validity of existing restrictive covenants. See Lambertson, supra note 14 at 211-14, 220-22, 228-37.

55. Girard, supra note 39 at 261. https://doi.org/10.1016/S0035-1598(96)90110-5

56. Ibid at 248.

57. Ibid at 262.

58. See Irving Abella and Harold Troper, None is Too Many: Canada and the Jews of Europe, 1933-1948 (University of Toronto Press, 1983).

59. Bialystok, supra note 5 at 73.

60. Ibid; Troper, supra note 12 at 26.

61. "Synagogue Smeared with Swastikas," Toronto Daily Star (28 December 1959) 25

Joseph Unger, "Germany's Jewish Leaders Claim Police Did Not Protect Synagogue," Canadian Jewish News (1 January 1960) 1.

62. See Howard J Ehrlich, "The Swastika Epidemic of 1959-1960: Anti-semitism and community characteristics" (1962) 9 Social Problems 264 https://doi.org/10.2307/799237

"Swastika Wave Grows," Toronto Daily Star (4 January 1960) 1

"Swastikas Daubed in 13 Lands," The Globe and Mail (6 January 1960) 4 ["Swastikas Daubed in 13 Lands"].

63. "Swastikas in Montreal," Toronto Daily Star (5 January 1960) 1.

64. "Recent Swastika Craze in Toronto Abating," Canadian Jewish News (15 January 1960) 1 at 8 ["Swastika Craze Abating"]; "Swastikas Daubed in 13 Lands," supra note 62; "Swastikas in Canada," The Globe and Mail (9 January 1960) 6.

65. Bialystok, supra note 5 at 99.

66. Letter from Ben Kayfetz to Rabbi William Rosenthal (3 November 1960), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 7) [Letter from Kayfetz to Rosenthal]

CJC News Release (10 January 1960), Toronto, Ontario Jewish Archives (Fonds 17, Series

5-4-6, File 7).

67. "Experts agree swastika spree not planned," The Globe and Mail (26 January 1961) 25

Martin Deutsch, "The 1960 Swastika-Smearings: Analysis of the Apprehended Youth" (1962) 8 Merrill-Palmer Q Behavior & Development 99.

68. Bialystok, supra note 5 at 99-100.

69. Ibid at 100; "Swastika Craze Abating," supra note 64.

70. Letter from Kayfetz to Rosenthal, supra note 66.

71. Bialystok, supra note 5 at 103.

72. Ibid.

73. Ibid at 104.

74. Ibid; Myra Giberovitch, The Contributions of Montreal Holocaust Survivor Organizations to Jewish Communal Life (MA Thesis, McGill University, 1988) at 96-97 [unpublished]. See also Interview of Ludwig Zabludowski (Lou Zablow) by Paulana Layman (28 August 1997), USC Shoah Foundation Visual History Archive (Segment 48). Zablow recounted that "hearing of a neo-Nazi party being formed in Canada alarmed all survivors, who were shocked to learn that there was no such thing as a law against [the] neo-Nazi party" (ibid at 00h:22m:42s). Upon founding the Association of Holocaust Survivors, Zablow discovered that very few people, including Jews, knew anything about the Holocaust, prompting the survivors to take steps to encourage Holocaust education.

75. See e.g. "Antisemitism Here Abating," Canadian Jewish News (13 January 1961) 1.

76. Letter from Monroe Abbey & Saul Hayes to Hon E Davie Fulton (8 September 1961), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 14).

77. Max Bookman, "Parliament Hill Notebook," Canadian Jewish News (27 October 1961) 4.

78. See House of Commons Debates, 26-2, vol 1 (24 February 1964) at 132-33 (Hon Guy Favreau). See also Report on Community Relations (1965), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 33) [Report on Community Relations].

79. See e.g. Cohen Committee Report, supra note 6 at 12-24.

80. Report by Sydney M Harris-Community Meeting (1 December 1963), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 13) [Report by Harris]

"Swastika on a Synagogue," Canadian Jewish News (17 May 1963) 4

Dave Kagan, "Police Investigates Vandalism," Canadian Jewish News (24 May 1963) 6

"Swastikas in Toronto," Canadian Jewish News (31 May 1963) 1.

81. See Ken Lefolii, "Of course hate-mongering should be stamped out. But not by passing censorship laws," Editorial, Maclean's (4 April 1964) 4, online: https://archive.macleans.ca/article/1964/4/4/editorial#!&pid=4; Don Watson, "Hate From The Sky," Canadian Jewish News (15 November 1963) 1.

82. Letter from Col JP Fry (17 February 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6. File 11) [emphasis in original]

"Toronto Jews Bombarded by Provocative Hate Mail," Canadian Jewish News (21 February 1964) 1

Letter from Ben Kayfetz to Jack Baker (4 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 24).

83. "What happened in the west?" Canadian Jewish News (2 August 1963) 4.

84. "Nazi Underground in Montreal," Canadian Jewish News (7 February 1964) 1

"McGill Daily Revelations," Canadian Jewish News (7 February 1964) 8.

85. "Some Facts about Neo-Nazi Leaflets" (9 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 14).

86. See e.g. Cohen Committee Report, supra note 6 at 27.

87. Ibid at 13; "After Stanley's Defection, Complete Chaos in Nazi Camp Here," Canadian Jewish News (27 August 1965) 1.

88. Bialystok, supra note 5 at 111.

89. Ibid at 147-48. See also John Garrity, "My sixteen months as a Nazi," Maclean's (1 October 1966) 11.

90. See e.g. "Congress Committee Chairmen Confer With Toronto Police Head About

Anti-Jewish Vandalism," Canadian Jewish News (24 May 1963) 1

"Cautions Torontonians Against Swastika Panic," Canadian Jewish News (7 June 1963) 1.

91. MJ Nurenberger, "Dybbuk in Downsview," Canadian Jewish News (7 June 1963) 1.

92. Ray Gould, "Jewish Leaders Meet Continuously on Swastika Wave," Canadian Jewish News (7 June 1963) 1.

93. See ibid; Nurenberger, supra note 91.

94. D Goldman, "Demand Law Against Nazis-400 at CJC Conference in Toronto Warn Nation: Don't Tolerate Bigots," Canadian Jewish News (6 December 1963) 1.

95. Letter from Meyer Gasner to Presidents and Secretaries of Jewish Community Organizations and Congregations, Toronto (3 December 1963), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 13); Report by Harris, supra note 80.

96. Report by Harris, supra note 80.

97. "CJC Presses for Anti-Bias Laws," Canadian Jewish News (3 January 1964) 1.

98. "Predict Ottawa Will Ban Dissemination of Hatred-Senator Croll, CJC Former Camp Inmates Press for New Law," Canadian Jewish News (27 December 1963) 1.

99. Bookman was the founder of the Ottawa Hebrew News. He wrote syndicated columns that appeared at one time or another in nearly all Canadian Jewish publications. See Lewis Levendel, A Century of the Canadian Jewish Press: 1880s-1980s (Borealis Press, 1989) at 233-34.

100. Max Bookman, "Dateline Ottawa," Canadian Jewish Chronicle (6 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 14).

101. See ibid.

102. Bialystok, supra note 5 at 124. In his memoir, W Gunther Plaut, Senior Rabbi of Holy Blossom Temple from 1961-1977, recounts that in February 1964 an anti-Nazi committee was created under Congress's auspices and that this committee "monitored the Nazis and, in co-operation with the police, placed an undercover agent in their cell." Plaut, supra note 47 at 242.

103. Florence Goldberg, "Canadian Jewry Acts: Move Against Neo-Nazis Here - Congress Decides to Combat Hitlerite Agents in Canada," Canadian Jewish News (21

February 1964) 1.

104. Speech by Sydney M Harris entitled "And Now The Facts" (9 April 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 14) at 10.

105. Ibid; "The Wrong Court," The Globe and Mail (11 April 1964) 6.

106. "Report on Community Relations," supra note 78.

107. Bialystok, supra note 5 at 124.

108. See e.g. ibid; "Alabama Hate Publication Seeks Subscribers Here," Canadian Jewish News

(5 June 1964) 1; "Nazis Defy Ottawa, Hate mailings from Scarboro continue - Clamour For Anti-Hate Legislation Mounting," Canadian Jewish News (12 June 1964) 1; "Canadian Nazis & The New Year," Canadian Jewish News (18 September 1964) 4; "Jewish Journal Threatened," Canadian Jewish Chronicle (25 September 1964) 1; Letter from Ben Kayfetz to JS Midanik (7 December 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series

5- 4-6, File 17).

109. Bialystok, supra note 5 at 115.

110. See "Bill C-21, An Act respecting Genocide," 1st reading, House of Commons Debates, 26-2, vol 1 (20 February 1964) at 30 (ML Klein); House of Commons, Standing Committee on External Affairs, Evidence, vol 3, no 34 (18 November 1964) at 1677 (John Matheson); Bialystok, supra note 5 at 115.

111. House of Commons Debates, 26-2, vol 6 (17 July 1964) at 5658-60 (JE Walker).

112. "Jews of Toronto: New Statistics," Canadian Jewish News (27 July 1962) 6. The total Jewish population in Canada in 1961 was 254,368. See Mordecai Hirshenson, "Canadian Panorama," Canadian Jewish News (20 July 1962) 7. This was approximately 1.4 per cent of the national population. See Troper, supra note 12 at 23.

113. "Bill C-43, An Act to amend the Post Office Act (Hate Literature)," 1st reading, House of Commons Debates, 26-2, vol 1 (20 February 1964) at 32 (David Orlikow).

114. "Ottawa Still Has Four Jewish M.P's," Canadian Jews News (19 April 1963) 1. As of 1961 (and until about 1991, when it was surpassed by Vancouver), Winnipeg had the third-largest Jewish population in Canada, at approximately 19,000. Orlikow represented Winnipeg North, which was traditionally home to most of Winnipeg's Jews, although much of this population migrated south after the Second World War. See Levine, Seeking, supra note 12 at 260-61, 366.

115. Letter from George J Beer to David Orlikow (29 February 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 16).

116. "Time to Act-Anti-Hate Bill," Editorial, Canadian Jewish News (21 February 1964) 4.

117. "Montreal Mass Meeting Told Anti-Hate Bill Okayed By PM," Canadian Jewish News

(4 December 1964) 1.

118. "Lou Zablow at ceremony to honour authors of Anti-Hate Bill" (1964), Montreal, Montreal Holocaust Museum Archives (2011X.359.57). Klein is on the far left; Zablow is second from the right, shaking hands with Walker.

119. See "Why Congress Did Not Support Klein Bill," Canadian Jewish Chronicle (28 August 1964) 1 ["Why Congress Did Not Support Klein Bill"].

120. See Letter from Ben Kayfetz to Queen's Printers (24 February 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 20)

Letter from Ben Kayfetz to Bora Laskin (2 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 20).

121. Max Bookman, "Dateline Ottawa," Canadian Jewish Chronicle (17 July 1964) 6. The Yiddish word yichus generally refers to family standing or lineage. Thus, in this context, Bookman is criticizing Congress for its alleged insistence that advocacy for the hate-speech bill must run through the CJC (with thanks to Nina Warnke for assistance with the Yiddish translation).

122. House of Commons, Bill No 93, supra note 38 at 62 (Bora Laskin).

123. Letter from Bora Laskin to Members of Legal Committee (4 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 20); Interview of Harry Arthurs (18 March 2020) [on file with author] [Arthurs Interview].

124. See Outline of Recommendations and Conclusions of Legal Committee Meeting (22 November 1966), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 41).

125. Arthurs Interview, supra note 123.

126. See R v Popert et al (1981), 58 CCC (2d) 505 (Ont CA) [Popert]. The Popert case concerned a charge for mailing obscene material (then s 164, now s 168 of the Criminal Code) brought against publishers of The Body Politic, a newsmagazine aimed at the gay community.

The impugned article, "Men Loving Boys Loving Men," described sexual relations of fictional men with young boys (ibid at 506-07). Justice Harris acquitted the accused,

but a new trial was ordered by the County Court and upheld by the Court of Appeal for Ontario. For further explanation, see Interview of Sydney Harris by Osgoode Society for Canadian Legal History (9 March 1995, 14 March 1995) at 117-20 [on file with author]. In explaining why he did not deem the material obscene, Harris noted that he brought his "pre-judicial life into" the case: "I remember making some comparisons and talking about…you want obscenity, the concentration camps in the war, that was obscenity. This isn't obscenity" (ibid at 119).

127. Alan Borovoy, "At the Barricades": A Memoir (Irwin Law, 2013) at 98-99.

128. Memorandum from Al Borovoy to Legal Committee of the Canadian Jewish Congress (1965), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 34).

129. Laskin clarified that he was comfortable proposing an amendment to clarify the false news provision. See Melvin Fenson, "Group Defamation: Is the Cure Too Costly?" (1965) 1 Man LJ 255 at 273, n 67.

130. "Why Congress Did Not Support Klein Bill," supra note 119.

131. Max Bookman, "Dateline Ottawa," Canadian Jewish Chronicle (16 October 1964) 2.

132. "Canadian Jewry-New Year Balance," Editorial, Canadian Jewish News (4

September 1964) 4.

133. L Goldstein, "The Issue: Representation," Letter to the Editor, Canadian Jewish News (18 September 1964) 4.

134. See House of Commons, Standing Committee on External Affairs, Minutes of Proceedings, 26-2, vol 3, no 39 (24 March 1965) at 1885-86.

135. See CJC Submission to the House of Commons Standing Committee on External Affairs (18 March 1965), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 33). Although the proposal was similar to Congress's prior submissions, it in fact went even further in its concern that the legislation not unduly impede freedom of speech. The March 1965 submission to the Standing Committee now recommended an additional clause under s 166 (the false news provision) that "[n]o person shall be convicted of an offence under this section by reason only of having published statements relating to controversial social, economic, political or religious beliefs or opinions" (ibid).

136. See Bill C-30, An act respecting Genocide, 3rd Sess, 26th Parl, 1965 (first reading 8 April 1965); Bill C-43, An Act to amend the Post Office Act (Hate Literature), 3rd Sess, 26th Parl, 1965 (first reading 8 April 1965). In addition to the Klein-Walker and Orlikow bills,

two other private member's bills were introduced in 1965 to amend the Criminal Code

to curb hate propaganda, neither of which were passed. The first, proposed by Liberal

MP Marvin Gelber, would have expanded the definition of seditious intention to include the wilful promotion of hatred or contempt against groups. See Bill C-16, An Act to amend the Criminal Code (Disturbing the public peace), 3rd Sess, 26th Parl, 1965 (first reading 8 April 1965). The second, proposed by PC member Wally Nesbitt, would have expanded the definition of defamatory libel to include group libel. See Bill C-117, An Act to amend the Criminal Code (Group Defamatory Libel), 3rd Sess, 26th Parl, 1965 (first reading 15 June 1965).

137. Letter from Meyer W Gasner (2 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 18).

138. See e.g. Letter from President, Beth El Congregation (Oakville, Ontario) to Guy Favreau (9 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 16)

Letter from B Litman to Guy Favreau (9 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 16)

Letter from Fred Sommers & Julius Miller to Guy Favreau (6 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 16)

Letter from Bernard Leffell, Philip Shnairson, & Erwin Schild to Lester B Pearson & Guy Favreau (10 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 16).

139. House of Commons Debates, 26-2, vol 1 (13 March 1964) at 873 (Hon Guy Favreau).

140. See e.g. Memorandum from Ben Kayfetz to Sydney Harris (31 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 14) (indicating that various Premiers had acknowledged the material sent by the Congress).

141. Letter from John Diefenbaker to Ben Kayfetz (16 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 16)

Letter from Tommy Douglas to Ben Kayfetz (16 March 1964), Toronto, Ontario Jewish Archives (Fonds 17, Series 5-4-6, File 16).

142. "Gov't., Opposition for Immediate Action Against Canada neo-Nazis," Canadian Jewish News (1 May 1964) 1 ["Gov't. Opposition"]

"No 'graded' citizenship in Canada-Pearson," Toronto Daily Star (27 April 1964) 1.

143. "Gov't. Opposition," supra note 142.

144. "Diefenbaker Calls for Action in Canada Against Anti-Jewish Tracts," Jewish Telegraphic Agency (29 April 1964) 4.

145. See Letter from John J Robinette to SM Har