R. v. A.B., 2012 NSPC 31

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. A.B., 2012 NSPC 31 Date: May 2, 2012 Docket: 2394957, 2394958, 2394959, 2394961, 2394962, 2394963 Registry: Halifax Her Majesty the Queen v. A.B., a young person DECISION Judge: The Honourable Judge Jamie S. Campbell Heard: April 23, 2012 and April 30, 2012 Decision: May 2, 2012 Charge: cc 430(4) x 4 and cc 319(2) x 2 Counsel: John Nisbet - Crown Attorney Michael Scott - Defence Counsel By the Court : Introduction [ 1 ] Words can have the power to wound. They can have the power to heal.

They can have the power to incite people to hate and they can have power to inspire people to compassion. [ 2 ] This case is about what it means to utter or scrawl certain words and symbols. Can an obscene phrase so inarticulate as to barely rise about the level of a grunt of ignorance have such historical connections that it has power beyond itself? [ 3 ] This case also serves as a reminder of the weakness of words. They are, after all, only words.

In the face of hearing how a young mother woke up with her 5 year old and 9 month old children, to see racially degrading, demeaning and hateful slurs painted on her street and directed toward her family, fearing whether she and her children were going to be attacked, words quite simply fail. Empty apologies certainly do. Evidence [ 4 ] A.B. is now 18 years old. Last summer he was charged with what is generally referred to as the dissemination of hate propaganda or the willful promotion of hatred. Those charges are under s. 319(2) of the Criminal Code .

He has also been charged with mischief contrary to section 430(4) of the Criminal Code, arising from acts of vandalism in various locations. The s. 319(2) charges relate to graffiti at the Bob Hilchie Memorial Ball Field and at one specific residence. I will not use the name of the family who were singled out by A.B. and his friends for abuse and degradation. Those people have been through more than enough already. [ 5 ] A.B. and his two friends went on a vandalism spree in the area not far from his home. They got a can of spray paint from his father’s garage and went from place to place.

A neighbour’s garage had a large penis painted on it. Another person’s garage was defaced in the same way. That target was not entirely random. A.B. said he did it because the guy “was a dick”. Street signs were defaced to

read “Fuck Stop signs”. A speed limit sign was changed from 50 to 80. The vandalism seems to have had no purpose, no rhyme and no reason. [ 6 ] They went to a nearby baseball field and began writing on the wall of the canteen. What was written was a bizarre mish mash of racist, vulgar, obscene and inane. The phrase, “heil Hittler”, spelled with two t’s, was prominent. A crude drawing of a penis, the word ‘Waddup” and the numbers 902 appear. The words “White Power” were written large. There is a crude stick person that appears to be making the one armed Nazi salute. The word “Jews” is written on the wall.

There is a picture of a handgun with the word “bang” printed beneath it. The letters, “KKK” are there. The phrases “Fuk niggas”, “fuck niggas”, “Fuck the Pigs” and “Fuk the Popo” are there. Popo refers to the police. There is also a large swastika and a drawing of a hand with its middle finger extended in what is commonly understood to be a rude gesture. [ 7 ] On a nearby bench is written “back of the bus niggers sit here”. The letters, “S.B.” are written. That refers to “shore boys”. The letters E.P.C. are written.

This refers to Eastern Passage Crew, which is not an organized gang but apparently a way in which some people from that community refer to themselves, though perhaps only when writing on walls. [ 8 ] They then went to the home of the family who were singled out for racist treatment. A.B. knew where the only black family lived on the street. They lived within a block or so of his home. The young men painted the word “Nigger” in large letters in the driveway with arrows pointing at the house. A swastika symbol was painted in the middle of the roadway. Further down the street the words “White Power” were written.

A large picture that was described as a big smiling face was sprayed on the street. The face had a sinister aspect to it. The young mother who saw it, said it looked like a devil. It is hard to imagine, in the context, that it was a purely innocent “happy face”. [ 9 ] Written at a diagonal from the house was the phrase, “KKK get out”. The victim who observed it recalled seeing it, though she did not refer to it in her police statement. There are no pictures of it. It, along with the other markings were removed from the street that day to allow the family to return. A.B. denies that the phrase was there at all.

He not only says that he cannot recall it being there, he specifically recalls that particular phrase not being there. Given the volume of hateful scrawling that she observed, it is little wonder that in the time immediately afterward, a victim might not recall every aspect. I accept her recollection given under oath as both sincere and reliable. A.B.’s evidence is very substantially less reliable. The reasoning underlying that assessment will become apparent. [ 10 ] A.B. admitted to some of the acts of vandalism, when confronted with a statement from one of his friends directly implicating him.

He was a party to the entire act of vandalism. The issue is whether the language and symbols and circumstances in which they were used constitute an offence under s. 319(2) . Legal background [ 11 ] Sections 319(1) and 319(2) of the Criminal Code define two different offences. The first one, under subsection (1) involves statements made in a public place, inciting hatred for an identifiable group and likely to result in a breach of the peace.

The second offence, under subsection (2), the one with which A.B. has been charged, involves statements made, other than in private conversation, that willfully promote hatred of an identifiable group. [ 12 ] The first offence suggests an immediate danger. It does not contain the word “willfully”. The requirement is only that the incitement is likely to lead to a breach of the peace. There is no requirement that the person intend to promote or incite anything. That is the

section under which the infamous cross burning case in Nova Scotia was prosecuted. [ 13 ] The presence of the word “willfully” in subsection (2) is significant in that it requires that there be a subjective element of intent. The person must have intended that the statements as communicated, promote hatred. There must be either a conscious purpose for the promotion of hatred or the person must have foreseen that the promotion of hatred was almost certain to result. [ 14 ] That intent can be proven by showing “willful blindness”.

That legal concept means that the person “knew or strongly suspected” that inquiry on his part would result in his having knowledge he wished to avoid. In this context it would mean that a person who willfully promotes hatred is one who has that intent directly or who makes the decision to remain ignorant because he would otherwise know his actions would have the effect of promoting hatred. [ 15 ] That intent is what sets the bar relatively high and makes the legislation a legitimate limitation on speech.

It is unfortunate that concept of freedom of speech is so often sullied by invoking it in defense of crude epithets. At the same time, it is not illegal simply to say things that are grossly rude, wildly offensive, blatantly false, callously hurtful, or even disgustingly hateful. The law does not make the use of specific words or symbols criminal. Society’s condemnation of those things comes from sources other than the criminal law. [ 16 ] It should be noted that

section 319 is not the only

section of the Criminal Code that addresses racially motivated actions. When an act that is otherwise criminal is shown to have been motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor, that is an aggravating circumstance.

Section 718.2 allows the expression of the condemnation of criminal acts motivated by racial hatred for example to take the form of longer or more restrictive sentences. [ 17 ] Acts of racial hatred are not necessarily hate crimes. Physically attacking a person because of his race or sexual orientation is an assault. The sentencing of that crime must express public abhorrence of the action and our collective refusal to countenance it. A racially motivated attack might be called a hate crime and the label seems to make a lot of linguistic sense. It is not a hate crime under s. 319(2) of the Criminal Code .

Hate crimes in that sense, involve the promotion of hatred, not the expression or manifestation of it. [ 18 ] The promotion of racism, anti-Semitism or homophobia to name only three examples, as outrageously offensive as they are to any right thinking person, are not in themselves criminal acts. Racism is not a crime. It is a curse, but not a crime. Even the promotion of racism is protected by free speech. What is criminal is the promotion of hatred. [ 19 ] The law distinguishes between hatred and racism. On an intuitive level they seem to be a lot alike. There is a legal difference.

Hatred is an intense and destabilizing emotion. It goes beyond racism. It may naturally develop from the ignorance and fear that underlieand drive racism. Racism is an attitude or a twisted way of seeing the world through a distorted lens of misconceptions. That way ofseeing the world causes people to act in ways that are offensive to the rest of us and pointedly hurtful to the victims at whom it isdirected. Hatred takes it a step further. It is intense, aggressive and dangerous.

Hatred is not simply disrespect but vilification anddetestation. [20] Promotion in this context means actively supporting or instigating hatred. The Supreme Court of Canada has determined thatpromotion goes beyond encouragement. In other words, it is not a criminal act to encourage people to hate.

An act of hatred or a hatefulcomment could act as an example or an encouragement to others by emboldening them. Promotion must go beyond uttering hate filledcomments and thereby encouraging others to act in the same way. [21] There is no requirement that the communication have succeeded in causing hatred. The fact the utterances were so outrageous thatthey would gain no traction is not a defence. The fact that no one who read those words would think less of any African Nova Scotian isnot, in itself a defence. [22] The legal issue here is whether A.B. intended to promote hatred.

It is not enough to prove that he intended to insult, provoke,disgust, or outrage the community. It is not enough that he intended to cause a young mother to worry about her safety and that of herchildren. It is not enough that he intended to make racist statements to demean and insult African Nova Scotians in general or that heintended to serve as an example to others of racism in action. [23] The phrase “hate crimes” leaves the impression that the law criminalizes acts motivated by hate or the outright expression of racisthate. It does neither.

Case law [24] The cases involving the promotion of hate in Canada read almost like a catalogue of the bizarre and shameful. They have tended toinvolve extreme people, with extreme views who are prepared to push them to extreme levels. They have advocated views and actionsthat are dangerous. [25] They involve an immigration case about a highly inflammatory speech made in Rwanda in 1992 by Leon Mugesera to about 1000people. The speech targeted to Tutsi population of that country in the context of the genocide taking place there.

The Supreme Court ofCanada held that the speech constituted an incitement to murder, genocide or hatred. (Mugesera v. Canada, Minister of Citizenship andImmigration 2005 SCC 40, 197 C.C.C. (3d) 233, [2205] 2 S.C.R. 100) [26] They include the case of David Ahenakew. At a First Nations conference he said that the “Second World War was created by theJews”. He continued in an interview with a reporter to say how he believed that Hitler had “cleaned up a hell of a lot of things”.

JusticeRichards of the Saskatchewan Court of Appeal characterized his rant as “on any standard….shocking, brutal and hurtful”, but went on tosay that was not the measure of the offence under s. 319(2). (R. v. Ahenakew 2008 SKCA 4, [2008] 2 W.W.R. 68 ) [27] They include the Buzzanga case. There the accused were supporters of building a French language school. They said that theyhoped by raising a furor and uproar they could compel the government to act.

A pamphlet was prepared containing among other thingsthe statement, “THE BRITISH SOLVED THIS PROBLEM ONCE BEFORE WITH THE ACADIANS, WHAT ARE WE WAITINGFOR…?” They succeeded in stirring up a controversy but also in getting themselves charged with the willful promotion of hatred, oddlydirected toward their own ethnic or linguistic group. The Ontario Court of Appeal held that the intent to stir up a controversy, furor oruproar was not the same as the intent to promote hatred. (R. v.

Buzzanga (ON CA), 25 O.R.(2d) 705, 49 C.C.C. (2d)369) [28] In Harding the accused wrote two pamphlets suggesting that there was a Muslim conspiracy to take over the world, and thatMuslims are incapable of living peacefully in Canada. The communication carried a warning that Canadian Muslims are part of aworldwide conspiracy that poses a threat to the security and wellbeing of the country.

He described them as “raging wolves in sheep’sclothing, inside they are full of hate, violence and murder.” He said that they are “violent and hateful towards Jews, Christians, andanyone else that denies or objects to their false religion.” The writings invited readers to take defensive actions against the threat posed byMuslims. (R. v. Harding (ON CA), [2001] O.J. No. 4953, 57 O.R. (3d) 333 (Ont. C.A.)) [29] They include the infamous case of Jim Keegstra. He was a high school teacher who taught students that Jews were treacherous,subversive, sadistic, money loving, power-hungry child killers.

He said that they were responsible for depressions, anarchy, chaos, warsand created the Holocaust to gain sympathy. He expected his students to reproduce his teachings in class and in exams. The man was anunrepentant and unapologetic anti-Semite who was imparting his views to students. In that case the Supreme Court of Canada weighedthe issue of whether s. 319(2) infringed the right to free speech. They found that the law passed the constitutional test. The application ofthe

section is limited and does not criminalize expression that is not “hate propaganda”. (R. .v Keegstra (SCC), 1990Carswell Alta 192, 77 Alta. L.R. (2d) 193, [1990] 3 S.C.R. 697 ) [30] These are all cases in which promotion involved instigation and more than encouragement. They all involve more than racisttaunts, slurs, name calling and symbols. They go beyond encouragement of hatred by its open and even flagrant expression.

They involvea form of expression intended to convince or incite. [31] In Nova Scotia, in February 2010, the community was shocked by the burning of a cross on the lawn of a bi-racial couple in HantsCounty. The cases involving the Rehburg brothers became prominent news. In that case a cross about 5 feet tall was set on fire andburned in clear sight of the family’s home and a public road.

The Rehburgs were charged under s. 319(1) which involves inciting hatredwhere that hatred is likely to result in a breach of the public peace. [32] The cases involved the burning of a cross which is a well known symbol of the violent racism Ku Klux Klan. It is inextricablylinked with murder, and lynchings. It sends a message of direct and specific intimidation. It is not an empty threat. A person who has across burned on his or her lawn has reasonable grounds to fear for his safety and that of his family. It is not a symbol of racism alone but

a call to violent racist action. [ 33 ] In the Rehburg case, the intention of the brothers was not the issue. The burning of the cross was found to be likely to lead to a breach of the public peace. That is not the charge here. [ 34 ] In February 2012 following a trial at the Crown Court in Derby England, three men were convicted of stirring up hatred on the grounds of sexual orientation. Ihjaz Ali, Kabir Ahmed and Razwan Javed gave out a pamphlet entitled “The Death Penalty?” which showed a mannequin hanging from a noose. The pamphlet said that capital punishment was the only way to rid society of homosexuality.

This was the first prosecution of its kind since the Criminal Justice and Immigration Act 2008 came into force in England in 2010. [ 35 ] These cases appear to have some common themes. Intent is generally shown by statements that in some way make the argument for racial hatred. It is not at all a cogent or rational argument and often is barely intelligible at all, but the intent to promote is evident.

The legislation does not criminalize the use of racist slurs and epithets or hateful taunts unless they are used in the process of promoting hatred. [ 36 ] The circumstances have involved people who have an axe to grind. They can be racist cranks but they do have some kind of twisted ideology or world view that they are seeking to expound. That can be shown from the nature of their writings or their own circumstances. Consideration of the context [ 37 ] The issue once again, is whether A.B.’s intent was to promote hatred.

A person’s intent is not something that can be objectively observed or determined with certainty. It depends on inferences that can be made. Context is critical. What was said, by whom it was said, to whom it was said and the context in which it was said are important considerations. What was expressed: [ 38 ] There is no doubt that what was written was hateful. The words, if they can still even be called that, were calculated to offend, demean and degrade.

Calling it a prank does not change that. [ 39 ] This case cannot be considered without uttering the word itself, even if to do so causes a shudder of discomfort. The word “nigger” has become one of the most reviled utterances in modern culture. Harvard Law Professor, Randall Kennedy, has written a cultural history of the use of the word in Nigger: The Strange Career of a Troublesome Word (Randall Kennedy, First Vintage Books, 2003) Again though, context matters. While it, and variations of it, is used by some self referentially, its use in that context is still highly controversial.

It can be used in that way to rob it of its hateful power. When directed as a slur however, there is no doubt of that power. [ 40 ] Those who freely use what was once the most culturally taboo of sexually related vulgarities will make reference to it only as “the n word”. It has a uniquely reviled status. [ 41 ] The excision of the word from the general lexicon is on the one hand a mark of respect. That one word carries with it the baggage of centuries of slavery, racism, abuse and disrespect. Our collective refusal to utter it makes a statement about our shared values.

On the other hand, removing it from use has given it the status of a wicked verbal talisman. It was and is a hurtful word. Now it has power beyond almost any other. The sad paradox is that the more the word is shunned, the more powerful it seems to have become. [ 42 ] Any idiot who wants a reaction can get one. Anyone who craves attention can get some. Anyone who wants to inflict a wound can do it. The only cost to the user is his own dignity. [ 43 ] The other words and symbols used are also offensive in the extreme. The letters KKK refer to the Ku Klux Klan.

In this context there is no need to outline that shameful part of America’s past and present. Suffice it to say that anyone who doesn’t understand the racist and hate filled connotations of those letters will not understand much else of what is involved in this matter. Similarly, the swastika should need no explanation as a powerful symbol of racist hate. [ 44 ] What was written on walls, roadways, mailboxes and street signs was a broad range of insulting and demeaning words and symbols. The word “Jews” was written on the ball field canteen wall, near the phrase “White Power”.

The phrase “Heil Hittler” (sic) was used. Those who wrote it knew that the two words went together, but not how to spell one of the most recognizable names of the 20 th century. [ 45 ] Outside the home where a mother was alone with her two children, the focus is on taunts toward that family based on their race. The message to that particular family was deeply disturbing. It was intimidating. It would be hard to see it as having anything other than that effect. [ 46 ] Penises were drawn on walls.

Street signs were damaged. [ 47 ] In the larger context of the entire night the words and symbols are broadly offensive. There is no consistent target and no consistent statement toward one group. Racism was a general theme but it was mixed with vulgarity of a sexual nature, disrespect toward the police and just mindless destructiveness. At one house they became focused. In the larger context they were not. [ 48 ] They do convey a message. It is one that goes beyond disrespect. These are the symbols and words of hate. On one level the message is that black people are not welcome in the community.

The message is also that anonymous cowards can spray paint hateful words and symbols and that ignorance is alive and well and lives in the community. [ 49 ] They do not convey any specific “information” however loosely that word may be used. For example, they do not convey misinformation or attempt to make a case as to why any race should be seen in any particular way. They do not make comments about

African Nova Scotians that would cause even the most naïvely credulous to reassess or affirm their views. They amount to a despicable slur but do not put forward an argument however perverted it may be. Who expressed it: [ 50 ] A.B. gave evidence in this matter. A person’s character cannot be assessed from a few minutes in court. This case is not about his character. It is about his actions and importantly, at this stage, his intent. How he responded to this situation gives some insight into his intent. [ 51 ] He was asked why he did this. He said that he and his friends had gone to the Natal Day fireworks.

When they got home they had nothing else to do. They had “nothing else to do”. [ 52 ] Even as an 18 year old that shows a disturbing lack of insight. There are many young people who have nothing to do on any particular summer night. Most decide to “chill”, hang out, or watch videos on You Tube. Only a small subset decides to fill in the time by going on a rampage of graffiti. Of those, even fewer decide to make their focus racism and even fewer still target a young family. His answer says nothing about why he would act this way.

Yet, he seemed to think this was an explanation, as if those who heard it would then sit back in their seats and think, “Well, I guess that explains it.” [ 53 ] When asked what was significant about these words and symbols his lack of understanding is breathtaking. He said he knew they were offensive and they just wanted to write the most offensive things they could think of. He is now in Grade 12 and has progressed through the Nova Scotia public school system. He is an athlete, plays two team sports and is captain of one team. There is no evidence that he suffers from any marked intellectual deficit.

Yet, his ignorance, and it can only be called that, of the world around him, is profound. [ 54 ] He believed that the swastika was the symbol of a “gang” called the KKK. He didn’t know what that stood for. Hitler, was as far as he knew, the leader of that gang. They killed “a lot” of Jews and didn’t like black people very much either. He had no idea at all of what connection all of this might have had to the Second World War, none at all. He couldn’t even guess as to when that war took place. He did offer that it was a really long time ago.

This young man stands on the verge of getting a high school diploma. [ 55 ] If racism is the product of ignorance, A.B. is compelling evidence of that. [ 56 ] He said that he had no specific issue with the victims who were targeted. They had done nothing to him or his friends. He knew the words were hurtful and racist. He also offered that he was not a racist. As a white person, he has been called the word “nigga” himself and it is used by him and his friends. That may be true. It may be that young white men use that word flippantly.

To suggest however that by that the word is rendered somehow less offensive when directed at a black family, is astoundingly shallow. [ 57 ] At trial he told the Crown prosecutor that he didn’t think that anyone would see these things because it was raining and the rain would wash the paint off. He was asked whether the things he had written on the canteen wall at first were washing off when he was writing the last things. He said no. In fact, all the things remained on the wall. He knew they were going to be there.

His comment about thinking the stuff would be removed by the rain, was of the character of, “it was worth a shot.” [ 58 ] He was questioned by the police about his involvement. He repeatedly denied having any involvement at all. He earnestly said that he was somewhere else at the time. He seemed genuinely baffled as to why anyone would think he might have anything to do with this. It seems that the denial was worth a shot as well. It wasn’t a matter of only feigning fuzzy recall or being forgetful or confused. He made up a story from whole cloth. [ 59 ] The officer told him that the victims wanted closure.

They were worried that they were being singled out for violence by a racist group. They would be reassured to know that this was a nasty prank. A.B. remained steadfast in his lie. The appeal to his conscience, which was made repeatedly, was not successful. [ 60 ] An appeal to his self interest seems to have worked better. He was told that one of his friends had talked. He wanted to know what was said. The officer asked him again to just tell the truth. At that point he began to talk about what he had done.

Only when he was firmly boxed into a corner did he back away from the outright boldfaced self serving lie. [ 61 ] His concern he said, was that people would think he was a racist. A person who has written “nigga” around a person’s home is worried that people will “think” he’s a racist. The impression he left is that he was concerned more about his physical safety and his reputation than about his conscience. [ 62 ] He did write a letter of apology to the victims. He said it wasn’t done in hate it was done in “fun”.

That might provide some level of comfort to the worried family whom the officer had told him about… but not much. Any 17 year old who thought about it for more than a brief moment would realize how stupid that would sound. It translates into this. “I’m not a racist. I’m just a guy whose idea of fun is to insult, demean, degrade and terrify you as a black person, then run away and hide. I hope you’re ok with that.” [ 63 ] It all leads to the question of how much of A.B.’s shtick was

an act. It is possible that he is less steadfastly obtuse than he makes himself out to be. It may just have been

an act. Maybe he does know that white guys’ using the “n word” doesn’t make it less offensive. Maybe he does know a bit more about the KKK, Hitler, the holocaust and basic world history than he made out. Maybe he and his friends do know how to spell “Hitler”. Maybe he doesn’t really think that saying it was done in fun will make it any better. Maybe he doesn’t think that painting the word “nigger” on a black person’s property, or anywhere for that matter, can be anything other than an act of racism. Maybe he knows that guys out for a bit of fun can’t do that kind of thing and expect people to take it as a prank.

It would have to have been a sophisticated con. [ 64 ] Vulgarity, vanity, cowardice, dishonesty and racism have come together seamlessly. It would have taken a truly masterful performance to fake that. Instead, it is evident that he showed enough vanity to assume that he could write what he wanted and somehow be above racism. He showed enough vulgarity in scrawling what he did. He showed cowardice in making these anonymous attacks,

running from them and worrying only about his reputation. He showed dishonesty in lying about them. [ 65 ] That is not intended as an unflattering and unkind portrayal of a young man. There may well be positive things about him. He may at other times act like a leader. He may do well at school. He may show acts of kindness. He may be respected by his peers. His actions regarding that night however have to be put in context to determine his intent. [ 66 ] Hatred can be promoted by a wide variety of people in a wide variety of ways. It need not be done intelligently and rarely is.

It need not be done by a person who writes hate filled screeds on “race theories” on his basement computer as part of a uniformed marching group. A person need not have a history of racism to promote hatred. [ 67 ] The circumstances here however involve a young man of 17. He was not a child but old enough certainly to have known the significance of what he did. He was not drunk or on drugs. It was not the work of one person acting alone in a rage about something entirely unrelated to race. For example, this was not a young man who got angry at his parents and decided to just be offensive.

There was no real reason given for just going out and being offensive. [ 68 ] This is however a young man who is not focused in any way on any larger issue however misconceived. He is not part of a racist group. He has no racist theory to expound. He seems not to care particularly whether anyone else hates blacks or Jews or the police. Unlike many promoters of racism and hatred he is not actively misinformed about the world, but simply uninformed. It seems that he is so thoughtless as to be incapable of formulating ideas about these kinds of things.

The Audience: [ 69 ] The audience in this case was both the general public and a specific family. Anyone walking by either the canteen or the street would see what had been written. [ 70 ] These were not comments painted on the back of a private shed. They were intended to be seen and more specifically to be seen by the intended victims and others. [ 71 ] To the extent that the words and symbols were directed to the family, they were a reprehensible insult. They were an expression of outrageous disrespect but it would be difficult to interpret the comment to the family itself as promoting anything to that family.

To them it was an expression of hate and intimidation. [ 72 ] There was a wider audience of people in the community who would see everything that was done. The public nature of the comments is significant. [ 73 ] At the same time, were comments made in the form of a speech at a racist meeting or in the form of a pamphlet that would make a difference. It would be difficult to accept that comments were intended simply to offend if they were made to a generally receptive audience or racist bigots.

Here, it is reasonable to assume that the vast majority of those who saw the graffiti would be intensely offended by it. [ 74 ] There was no effort to sanitize the comments or to make them acceptable to any audience. Drawing penises, defacing stop signs, tagging the area with “EPC” and anti-police statements would not be a very good way of getting any message across to the general public audience. There is no requirement that the promotion of hatred have been effective. What was done here, for a broad audience was hardly what even a highly unsophisticated person would do to convey a message.

It would be effective as a way to shock, annoy, outrage and offend everyone. Circumstances [ 75 ] The circumstances must be considered, apart from what was said, to whom it was said, and by whom it was said. [ 76 ] This happen in a community where issues of race relations have been controversial. A.B. attends a school that has struggled to deal with the integration of two communities that have for years been divided by racial tension. [ 77 ] These actions were also done in the context of a spree of vandalism. There was no planning. No one thought beforehand about what they would write.

They passed the spray paint can back and forth and seem to have just tried to outdo one another with how offensive they could be. There was no evidence of any discussion regarding what message should be delivered, to whom or in what form. It was thoughtless in the true sense of that word. [ 78 ] There was no evidence of any particular incident that might have given rise to these actions. For example, there was no evidence of a recent controversy to which this could be related in any way. This does not appear to have been a response or reaction to anything in particular.

There was no evidence of any personal dispute with the family that had been victimized.

Summary [ 79 ] Whenever a number of factors are considered there is a risk of reducing the analysis to a checklist in which each factor is considered in isolation. Where intent is to be determined from context it is critical to consider the matter as whole. Some aspects of the situation are consistent with the intent to promote hatred and some are not. Not all factors that would suggest the intent to promote hatred need be present to make that inference.

Equally, the presence of some of those factors will not always result in the inference being made. [ 80 ] The words and symbols used here were intensely hateful and racist. If someone is going to promote hatred these are the kinds of words and symbols they might well employ. When those words and symbols are given any kind of public display the issue of whether they were used with the intent to promote hatred will arise. When those words and symbols are prominently displayed on a public

building and are also directed at the home of an African Nova Scotian family, in a larger community that has experienced racial tension, that action cannot be characterized simply as a prank. [ 81 ] There are other aspects of the matter that support the inference that what was intended here was not the promotion of hatred. It would be difficult to conceive of any combination that could be more calculated to offend a very broad range of people. What was done over the course of the evening was vandalism that attacked Jews, African Nova Scotians, and the police specifically.

It would shock anyone offended by sexual vulgarity. On another level it would annoy anyone who disapproved of vandalism in general. [ 82 ] The broad scope of offence is significant. That is consistent with the intent to shock, insult and offend the entire community not to promote anything to that community. [ 83 ] It is also significant that no effort was made to sanitize or justify the message. Promotion does not have to be intelligent, reasoned or effective. The promotion of hatred is almost never any of those things.

It will often, though not always, reach beyond the level of a hate filled grunt, an ignorant slur or racist name calling. There is sometimes a perverse logic to be found. The comments are often justified by a distorted view of history or a tortuously interpreted religious text. The words and symbols here stand on their own or appear in the context of broad spectrum of insults. [ 84 ] The words and symbols express racism and hatred and to some extent may encourage other deluded people by confirming that they are not alone. In some circumstances that crude expression might cross into the promotion of hatred.

It must be considered in light of the other circumstances however. [ 85 ] A.B. was 17 and a half years old. He wasn’t acting in response to anything in particular. There was no incident that ignited the event or prompted A.B. and his friends into action. He himself does not have a cause. He isn’t part of an organized group that promotes racism and there is no evidence that he has engaged in activities associated with such groups. There is no evidence that he actively seeks out like minded people or that he accesses the treasure trove of racial hate materials available over the internet.

He does not appear to have enough basic knowledge to form even distorted opinions about race or much else. While some racist neo-Nazis will idolize Hitler or at least justify his actions, A.B. seems only vaguely aware of who he was. [ 86 ] That is not to say for a moment that someone has to have a level of intelligence or sophistication to promote hatred. Hatred is often simply the product of ignorance. But to have the intent to promote hatred, a person will often have a distorted world view and care enough about it to want to encourage others to adopt it.

A.B. does not seem to have any world view distorted or otherwise. [ 87 ] The audience for all of this was the general public. This was not a communication made to a receptive audience and the form of expression did nothing to make that audience more receptive to any message. [ 88 ] What was “said” and to whom it was directed are largely consistent with the inference that the intent here was to intimidate a family, and to shock, offend and outrage their neighbours. Scrawling on the wall and writing outside the home of a black family is consistent with those intentions. There was no speech and no pamphlet.

There were no distorted facts presented. There was no call to racist action. There was no plan. There was no incident that ignited the event or prompted A.B. and his friends into action. [ 89 ] It is unfortunate that this case involves the consideration of two crimes that are labeled in ways that can result in misunderstanding as to their real meaning. A “hate crime” is, in this context, not a term used to describe an illegal act motivated by hate or the expression of racist hatred. A crime that is both hateful and racist is not necessarily a hate crime. [ 90 ] There was a series of crimes committed here.

Property was vandalized. Those crimes are made much more serious by the way in which that was done. There is no question whatsoever that filling a community with hateful racist obscenity and targeting an innocent family is a crime of a very different character than writing your initials on a fence. [ 91 ] Both are characterized in law as “mischief”, which carries the connotation of childish indiscretion or relatively innocent hijinks. That is unfortunate. They are very different.

These acts are best described as acts of hurtful, hatefilled, intimidating, racist vandalism. [ 92 ] A.B. is not guilty of the offences under s. 319(2) . The intent to promote hatred has not been proven beyond a reasonable doubt. In that legal sense he is not guilty of the charges of hate crimes. He is guilty of the offences under s. 430(4) , aggravated by the expressions of extreme racism and further grossly aggravated by the manner in which those expressions were specifically directed.