Anti-hate law failing: Matas

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David Matas

A defamation lawsuit against a Winnipeg man who allegedly distributed anti-Semitic material on posters and the Internet since September is a sign Canada's anti-hate laws do not work, a human rights expert said Wednesday.

Winnipeg lawyer David Matas, senior legal counsel of B'nai Brith Canada, said the lawsuit brought by Shindico Realty president Sandy Shindleman and his brother, Robert, also shows how badly what's on the books can be interpreted.

"It speaks to the failures of the public remedies on this issue," Matas said. "I personally think it's deplorable that an individual should have to take this on himself for what is essentially a community concern. An attack against any group is an attack against all."

The Shindlemans filed a claim for defamation against Winnipeg resident Gordon Warren on Monday in Court of Queen's Bench in Winnipeg. The brothers say Warren is behind a series of recent postings that have attacked their reputation and are racist and anti-Semitic.

They are seeking an unspecified award for aggravated, punitive and/or exemplary damages. They also ask the court for an injunction prohibiting Warren from communicating in any form any information about them. A court date has been set for March 26. None of the allegations against Warren has been proven in court. He was unavailable for comment.

Sandy Shindleman said in an earlier interview he and his brother were compelled to take the matter to court after the province's Justice Department declined to prosecute Warren for hate crimes under Canada's Criminal Code.

The decision was made after Warren admitted putting up posters last year that alleged criminal wrongdoing by Mayor Sam Katz and several local business people, including Sandy Shindleman. All but one of those named are Jewish.

Matas said Attorney General Andrew Swan's office wrongly decided not to prosecute because Warren's posters did not promote genocide.

Matas said the attorney general's office could have prosecuted Warren for incitement to hatred, contrary to the Criminal Code. The offence of incitement to hatred has no requirement that it promote genocide, he said; it's a separate offence.

"We have the attorney general refusing consent for a legally invalid reason," Matas said.

He said B'nai Brith wrote to the Justice Department asking for reconsideration of the decision not to prosecute Warren, but has yet to receive a reply.

Swan's office declined to comment on the matter Wednesday.

Matas said the attorney general of Canada, in consultation with the provinces, should create guidelines for the exercise of discretion on prosecuting for incitement to hatred. By law, such a prosecution requires the consent of the attorney general.

Winnipeg police have confirmed they've received a complaint about a Feb. 23 post on a blog Warren created. It is entitled The Katz Doctrine and the investigation is ongoing, police said.

Matas said Ottawa is in the process of abolishing Section 13 of the Canadian Human Rights Act, which bans hate speech communicated on the Internet or by telephone.

National reports say Bill C-304 doesn't make hate speech legal on the web or phone, but it removes it from the Canadian Human Rights Act, and in doing so takes away the authority of the country's human rights commissions to investigate online hate speech and order offensive websites taken down.

Matas said if the bill passes in the Senate, there will be a legal vacuum in Canadian hate-crimes legislation.

"We have nothing to replace it," he said, adding an act committed with impunity is often repeated.

"The licence for this sort of attack can be used against any group," he said.

bruce.owen@freepress.mb.ca

'An attack on community'

"Yet hate propaganda is not just an attack on the vilified group. It is an attack on the whole community and its values. If we leave responsibility for addressing the wrong to the vilified group, we absolve society from its duty to redress the wrong. We send a false message to members of the vilified group that the community as a whole does not care about their victimization. We isolate the victims and leave them to their own recourses."

-- David Matas, senior legal counsel of B'nai Brith Canada, in remarks made on International Holocaust Remembrance Day, Jan. 27, 2013, at the Shaarey Zedek Synagogue

Republished from the Winnipeg Free Press print edition March 7, 2013 B1