Plaut, W. Gunther

York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 5, Number 2 (October 1967) Article 11Book Review: The Report of the SpecialCommittee on Hate Propaganda in CanadaW. Gunther PlautFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljBook ReviewThis Book Review is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationPlaut, W. Gunther. "Book Review: The Report of the Special Committee on Hate Propaganda in Canada." Osgoode Hall Law Journal 5.2(1967) : 313-317.http://digitalcommons.osgoode.yorku.ca/ohlj/vol5/iss2/11Book ReviewsTHE REPORT OF THE SPECIAL COMMITTEE ON HATE PROPA-GANDA IN CANADA. Queen's Printer and Controller of Stationery,Ottawa: 1966. pp. 327 ($2.50).In January 1965, after a good deal of public controversy, theMinister of Justice appointed a special committee to study and reportupon the problems related to the dissemination of varities of "hatepropaganda". Professor Maxwell Cohen, dean of the faculty of law,McGill University, became the chairman of the committee, members ofwhich were Dr. J. A. Corry, Principal of Queen's University; L'Abb6Gerard Dion of Laval University; Mr. Saul Hayes, Q.C., of theCanadian Jewish Congress; Professor Mark R. MacGuigan of theUniversity of Toronto; Mr. Shane McKay, Editor of the Winnipeg FreePress; and Professor Pierre-Elliott Trudeau of the University ofMontreal.Ten months later they submitted the Report which is here underreview, and early in 1966 the Report was printed and made public.There can be little question that the 327-page document representsa milestone among the inquiries into a complex legal problem, whichhas been under consideration in many countries, and especially in theUnited Kingdom. The Report's breadth of approach, its scholarlyapparatus and its amassment of relevant documentary material willrender it a classic reference work-and this regardless of the kind oflaw that will or will not be based on its recommendations. For hereperhaps more than elsewhere, the law meets not merely alteredeconomic, political and social conditions, but it confronts that subtleand yet decisive element in the regulations of social relationship, thepsychology of interpersonal behaviour and its effect on the commonweal."Hate" says the report, "is as old as man and doubtless as durable.This report explores what it is that a community can do to lessen someof man's intolerance and to proscribe its gross exploitation."The authors of the Report freely acknowledge that not every useof human communication could or should be controlled by law. Yetevery society must from time to time draw certain lines where "theintolerable and the impermissible coincide" and, in the opinion of thepublic as well as the government, the time to do so had come. Thecommittee tackled the difficult job of defining such limits in anarea both sensitive and resistent to ordinary definitions: the power ofhuman speech. In doing so the committee has produced a substantialand, what is unusual under such circumstances, a readable document.IBefore proceeding to an evaluation of its contents it might bewell to survey briefly the areas covered by the report. The documentstarts with a brief analysis of the scope of the freedom of speech,19671OSGOODE HALL LAW JOURNALthen turns to an examination of hate propaganda in Canada, pastand present, and surveys the recent increase in hate materials invarious provinces. In a brief but worthwhile chapter the documentdeals with socio-psychological effects of hate propaganda and the roleof law and education as controls. Then in its most important sectionthe Commission turns to a discussion of the ability or inability of ourpresent laws to deal with the present exacerbated conditions of inter-group tension, and it concludes with a series of recommendations.Principally they are the following:The advocacy or promotion of genocide should be an indictableoffence and liable to imprisonment for five years.Incitement to hatred or contempt against identifiable groups,where such incitement is likely to lead to a breach of peace, should beeither an indictable offence (liable to imprisonment for two years) orin some cases an offence punishable by summary conviction.Those who wilfully communicate statements which promotehatred or contempt against any identifiable groups, are liable in a likemanner.No offence will have occurred if proof can be brought that thestatements communicated were not only true but that they wererelevant to a subject of public interest and that the discussion was infact for the public benefit, and that the one who makes the communica-tion had reasonable grounds to believe it to be true. The recommenda-tions make it clear that in such a case the burden of proof lies onthe accused.What is an identifiable group? Says the report in its list ofdefinitions: "Any section of the public distinguished by religion,colour, race, language, ethnic or national origin."The Report then turns to six appendices of which the first threeare the most important: a discussion of seditious libel and relatedoffenses in England, the United States, and Canada; a survey dealingwith soclo-psychological analyses of hate propaganda (including ahighly relevant examination of the effects of hate propaganda uponmembers of the target group); and a survey of hate propaganda inCanada. There is also a discussion of private members' bills introducedat previous times, and a survey of hate legislation in other countries,including the United Nations. It was unfortunate that the British Race-Relations Bill was presented too late; its inclusion in the Cohen reportwould have made a valuable contribution.The Report has of course become more than an exercise in legalscholarship and philosophy, since Bill S-49, which on November 7th,1966, was introduced into the Senate of Canada by the Honourable314 [VOL. 5:312Book ReviewsSenator Connolly, P.C., was based upon the Committee's recommenda-tions. This Bill, representing the intent of the Canadian government,in substance reproduces the recommendations of the Cohen report,albeit with a few changes, one of which we shall have occasion tocomment upon. All discussions of the Cohen report must therefore becoloured by the introduction of Bill S-49. However, this is as theframers of the report would no doubt wish it, since it was their hopethat suitable legislation might ensue from their recommendations.IIWhile on the whole the report has received widespread praise, ithas been attacked, predictably, on the issue of free speech. Usually theargument has been phrased in philosophic language when it shouldhave been couched in practical terms. The cry is raised that thecommittee's report endangers the exercise of free speech, when it isprecisely with this issue that the Report deals very carefully and whenit is precisely in order to guard free speech that the Report was framedin its present form. "Freedom of expression is a main cornerstone ofour way of life," says the Committee and it adds that in any discussionof placing limits upon this freedom "the case for restraint must beshown to be very strong indeed."Freedom of speech never was unlimited, is not unlimited now,nor will it ever be. There is indeed very little support for individualfreedom as an absolute right, to be protected at all times, at all costs,and under all circumstances. The most that can be said is that thereis a strong presumption in favour of freedom of expression, strongerthan in any other of the important civil liberties; to say therefore(as it has been said) that the Committee rode roughshod over preciousCanadian liberties is an argument which cannot be taken seriously.What can be taken seriously, however, is the question whetherthe restraints suggested by the Committee are, or are not, alreadycovered by present laws. The Committee thinks they are not, and itproceeded to prove its point and does so cogently.The reason for a gap between existing laws and present publicneeds is not hard to find, for the political and social circumstanceswhich governed our past legal practices have been profoundly alteredsince 1933. The widespread introduction of laws forbidding discrimina-tion in employment practices and the limitation of "freedoms" withregard to the incitement to group hatred which have been imposedin a score of states around the world is vivid testimony to this changein human society. Canada's creation of the Committee and the sub-sequent introduction of Bill S-49 are merely the belated recognitionof an existing sociological and psychological condition. Here as else-where, changed conditions necessitate a change of law.Yesterday freedom of speech was deemed to be one of theprimary safeguards of the individual vis-a-vis the incursions of a1967]OSGOODE HALL LAW JOURNALrestrictive and potentially repressive government. In the tradition ofRousseau, Montesquieu and Paine it was a primary function of thelaw to protect the individual citizen from authority. But during thepast generation we have experienced a profound alteration in oursocial structure. The "individual citizen" still exists in theory and inlaw. But because of the vast growth of urban centres with their con-comitant anonymity and debasement of individual significance, menhave found it increasingly difficult to identify themselves either as in-dividuals or as members of a total society and have looked for inter-mediary groups from which they could derive their identity. In asense we have returned to the kind of stratification operative inmedieval days, when guilds, for instance, far more than modern unions,were that medium through which the individual both made his liveli-hood and gained his sense of public identity. Under vastly changedcircumstances this is the kind of internal social regrouping which weexperience today. Consequently, what happens to the group withwhich a person identifies himself most intimately is of more thanpassing significance to him. If the group is threatened, his veryidentity stands in doubt; if the group is secure, his personal freedomis more secure.This new stratification ante-dated the Nazi deviation of 1933-45,but it was dramatized in those years as never before, and the attend-ing tragedy left its marks upon the post-Nazi generation to whichwe still belong. The introduction of group libel laws and hate propa-ganda regulations in so many countries during the last ten yearsshows vividly the increasing appreciation of the changing relationshipsbetween individuals, groups, and total society or government. It isagainst this background that the issue of free speech must be under-stood. To use 18th and 19th century terms in reference, will simplynot do.IVEvery one is aware that the special experience of the Jew gaverise to the Report and to Bill S-49. Jews are of course not the onlyones who have been persecuted or severely discriminated against oragainst whom genocide has been practised. Armenians and Gypsiesare cases in point, but it is the persistence of violent anti-Semitismwith its spectre of neo-Nazism which has made the matter urgentupon so many nations and now also upon Canada.The bitter and bloody realities of anti-Semitism are generalknowledge, and to reduce their effects was evidently an importantobjective for the Committee. Its recommendations included, as wenoted above, the word religion in its definition of distinguishing aspectsby which a group could be identified (others being colour, race,language, ethnic, or national origin). Bill S-49 omits the mention oflanguage and religion. About the former there may be some questionin view of current intra-Canadian controversy. But the omission ofreligion as a mark of group identification strikes me as an over-protective caution. The Cohen report was clear and unambiguous[VOL. 5:312Book Reviewsin this respect. By implication it stated that amongst many groups,and at present chiefly amongst them, the Jews had to be protected, sothat they might enjoy the full security and freedom of Canadiancitizenship. The government, by omitting the word religion, weakensthe intent of the report and appears to hide from public view whatneed not and should not be hidden. The Jews are concerned-evenif they are not mentioned in the Report-why then raise any doubtsabout it? It seems to me that in this respect the report is superiorto Bill S-49.There have been questions concerning the so-called escape clauses.I see no basic fault in them because ultimately they provide thatneeded protection which no one would eschew. It must also be clearthat the operation of these clauses is limited. For if a Court wouldever hold that group libel is "in the public interest" or "for the publicbenefit"-then Canada's cultural setting would have changed to sucha degree that the present foundations for a hate law would havecrumbled and consequently the law would be inoperative in any case.This consideration applies also to the question whether in the processof proving his allegations as "true" the accused could use the court-room procedure as a sounding-board for hatred. I think it is essentialthat we trust the Court to provide proper safeguards in this regard,and past procedure gives us no reason to doubt that this will be done.Also, the application of the British Law in so far as we have hadoccasion to observe it, should lay such fears to rest.At this late date, one need hardly expend ink and effort toargue the educative effect of legislation. Long ago, Dr. G. W. Allportstated that the establishment of law creates a public conscience, astandard for expected behaviour that helps to check overt prejudice.At the other end of the scale the law aids the member of the minoritygroup who receives a much needed assurance that the liberties underwhich he now lives are sufficiently secure against all incursions, andthat whatever else may happen, genocide will never again be a prob-lem for him and his group.For when all is said and done, genocide is unlike any other offence.Its magnitude exceeds description and analysis, as the Nurembergtrials and the judgment of Eichmann have amply demonstrated. TheUnited Nations has seen fit to deal especially with genocide, and sonow will Canada. The report deserves our cordial endorsement whenit stresses the general desirablity of preventative and punitivemeasures, and when it aims to create a social climate that is un-congenial to hate propaganda.The Report of the Special Committee on Hate Propaganda inCanada-the title might well have added a reference to genocide also-will be a landmark in Canadian law and, it is hoped, will providean incentive for other nations to deal with this urgent subject.W. GUNTHER PLAUT :Dr. Plaut, J.D., D.D., is Rabbi of The Holy Blossom Temple, Toronto,Ontario.1967]

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