As a writer I’m a little conflicted about the state censoring free speech. Freedom requires the ability to speak freely, and in a perfect world everyone should be free to discuss contentious issues. But words aren’t neutral, and sometimes words are weaponized. Which is why even nations that protect freedom of speech use law to limit it when necessary.
Defamation and Libel break the law using only words. So does cyber bullying and criminal harassment. False advertising and fraud are crimes that can be committed with words. And threatening someone is Assault under the Criminal Code of Canada, as is Sedition. All of these things (and undoubtedly more that I’ve missed) are limitations on free speech.
In addition to these word based crimes that limit our freedom of speech, Canada also has laws against hate speech and hate crime. Since the election of American President Donald Trump, acts of hatred have been on the rise, not just there, but throughout the world. Certainly here in Canada. American society seems especially prone to allowing words and actions used to incite or assault, and even privacy invasion to be protected as “free speech.”
“A hate crime is one in which hate is the motive and can involve intimidation, harassment, physical force or threat of physical force against a person, a group or a property.”
—CBC: What is a Hate Crime?
Although there is some variety across Canadian jurisdictions,
“A hate crime is a criminal offence committed against a person or property that is based solely upon the victim’s race, religion, nationality, ethnic origin, sexual orientation, gender or disability.”
—Metropolitan Toronto Police Force,
2.3 Hate/Bias Crime Definitions used in Canada: Disproportionate Harm: Hate Crime in Canada
Even if there is no other Criminal Code violation, hate crimes can be charged on their own. But when elements of any crime has aspects of hate crime, either separate additional charges can be laid against the perpetrator, or the punishment can be enhanced by the gravity of the crime.
The Criminal Code of Canada’s Purpose and Principles of Sentencing says:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
- R.S., 1985, c. 27 (1st Supp.), s. 156;
- 1995, c. 22, s. 6.
Marginal note:Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was 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 gender identity or expression, or on any other similar factor,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
I’m not a lawyer, so I can’t say exactly what charges should be laid against the young man who threw the heavy metal trailer hitch at a couple of random Indigenous women walking down a Thunder Bay street.
From what I’ve read, neither victim or perpetrators knew each other. The action was deliberate.
The heavy piece of metal didn’t fly out of a car window accidentally or through negligence.
A young man leaned out the window holding the heavy metal object that might weigh as much as 50 pounds— a proverbial blunt instrument. To put this in perspective, the heaviest legal weight for a bowling ball is 16 pounds. It wasn’t a small thing to hold, much less throw.
Certainly the other three people in the car with him had to be aware of what he was doing. Two of them turned themselves in to police the next day, but the perpetrator and the driver of the car did not.
The only explanation for this action lay in the words 18 year old Brayden Bushby shouted after he threw the thing that knocked down and fatally injured Barbara Kentner.
These words indicate this was no random act of violence, it was clearly deliberate. It doesn’t matter whether “one” referred to the gender or race of his victim. It does matter that these words make clear he wasn’t attacking a specific person, he was targeting women or Indigenous women. Which makes it a hate crime.
“The impact of such crimes is far reaching, extending beyond the physical and emotional trauma to the victim, to encompass other members of the groups and broader community. Such crimes can heighten the isolation and vulnerability of the victim’s group and cause stress for all members of the community. If unchecked, these crimes can result in an escalation in social tensions between different groups that can destroy communities, thereby furthering the aims and objectives of those in our society who promote hatred and intolerance.”
— Policing Standards of Ontario
In recent months the Ontario city of Thunder Bay has been prominent in news stories in connection with racism.
In June, Statistics Canada reported that most of the police-reported hate incidents in Thunder Bay targeted Indigenous people, accounting for 29 per cent of all anti-Aboriginal hate crimes across Canada in 2015.
“Young people have told me repeatedly of walking home and having things flung at them out of cars,” Thunder Bay MP and Liberal cabinet minister Patty Hajdu said following the release of the Statistics Canada report.
—National Post: Escalating racism toward Indigenous people ‘a real problem’ in Thunder Bay: grand chief
The City of Thunder Bay’s Anti-Racism & Respect Advisory Committee has put together tools for reporting racism. The situation has become so dire Thunder Bay has joined with the Fort William First Nation and Nishnawbe Aski Nation in hopes of addressing its crisis of racism.
And yet to date, the only criminal charged brought against Brayden Bushby— the man who deliberately threw the trailer hitch that led to Barbara Kentner’s death— is aggravated assault. Because “investigators did not feel there was enough evidence to call the crime hate-motivated.”
I’m no lawyer, but I simply cannot comprehend how a stranger who targeted Indigenous women, killing one in a drive-by, could be anything but a hate crime. Several reports mention charges might be upgraded based on the Coroner’s Report (whenever it comes out) but so far nothing.
We all must work together to acknowledge that racism exists. We must combat and report racism. We must take this very seriously. This has been going on for far too long. This is our reality as many Indigenous Peoples, especially our women, have come to me with their stories. It’s very disturbing and frightening. There is an escalation of violence in this city, and we must not minimize these horrible situations.
—Nishnawbe Aski Nation (NAN) Deputy Grand Chief Anna Betty Achneepineskum
Thunder Bay’s Mayor expressed his condolences to the family, but has since been charged with extortion in an unrelated matter, and Thunder Bay police chief’s charges tied to issue with the city’s mayor. At the same time the Office of the Independent Police Review Directorate, began a review of the Thunder Bay Police last November in response to “allegations of “systemic racism” when dealing with all cases of murdered and missing indigenous people.“
Clearly the City of Thunder Bay is in crisis, but nonetheless the justice system can not be allowed to forget the 34 year old mother who lost her life, who spent months dying in agony, because a man didn’t recognize she was a human being. He didn’t think there would be consequences for his grotesque act.
But a life was taken. Barbara Kentner’s life was taken.
Woman. Sister. Aunt. Cousin. Mother.
A life that can’t ever be returned to a family and community that mourns the senseless loss.
We as a society must say “NO” to hate speech and hate crime. The best way to do this is by teaching our children not to hate. But apparently not enough of us are. Education and outreach programs can help, but until then, the way to deal with hate crimes and violence is through the justice system. It seems Thunder Bay’s Crown Prosecutor needs to be reminded justice demands this perpetrator must answer for taking a life. Not for vengeance, but because every life has value. And hate crimes have real consequences.
Justice must be done. Which is why I’m asking you to join me in signing this petition. Please sign and share.
UPDATE: On November 3rd the charges against Barbara Kentner’s accused assailant were finally upgraded to second degree murder.
Thank you to everyone who signed the petition.