The problem with Penticton’s new anti-racism bylaw

It’s not hard to find support for Penticton’s proposed bylaw against racist speech, but there’s a reason there are very few Canadian cities with similar rules.

The threat of a $500 fine means someone has to determine what counts as discriminatory speech under the bylaw, and that’s not as simple as it sounds.

“The problem is trying to define what is and what is not hate speech. It has been an issue plaguing the courts because it changes from time to time, and it changes for the person who hears it,” Penticton-based lawyer Paul Varga told iNFOnews.ca.

City staff briefed Penticton city council on the proposed fines earlier this month which brought a set of changes to its Safe Public Spaces bylaw, which would allow for enforcement against speech in public that discriminates against a person’s race, gender and sexual orientation, for example.

It came 18 months after council voted to adopt a bylaw specifically against racist speech, which is proposed to only be enforced by RCMP.

“Any complaint coming in for this section, most likely to our office, would be referred immediately to RCMP. They will look to see… whether it meets a criminal investigation or a bylaw investigation,” bylaw department manager Deanne Burleigh said during a Nov. 4 council meeting.

Staff told council that bylaw officers will have discretion when deciding whether to enforce the bylaw, adding that education and “voluntary compliance” is the primary goal.

Although the federal government has recently proposed a set of new crimes to combat hate, there are currently very few hate-related criminal offences in Canada, but most relate to the promotion of hatred or violence against an identifiable group.

Varga said hate or discrimination can be an aggravating factor in criminal court, and it’s something RCMP officers are directed to take into account as the federal policing agency tracks a substantial increase in reported hate crime over the past several years.

But, an RCMP report notes there is no universal legal definition of hate speech and it can be a challenge to prove hate or discrimination was a motivation in some crimes.

Varga said he has disdain for racists and has challenged members of hate groups, and people who promote them, in the past, but he said enforcing an agreed upon definition of discrimination is a moving target.

“How do we ensure free speech is encouraged and speech that crosses the line is not? Is it the recipient? Is it the person that investigates the speech, is it the courts?” Varga said. “And if it’s seen as the kind of thing that crosses the line of free speech, then that’s the Charter of Rights and Freedoms, which is a much higher law than anything city council might draft up.”

He said the bylaw’s true test will come if a person facing a $500 discriminatory speech fine chooses to challenge it, forcing the matter to a provincial court judge.

The bylaw came after an immigrant services provider’s clients harassed by one person over months and the non-profit’s staff asked council to adopt a bylaw similar to one in Calgary. It would make Penticton the first community in BC to adopt such a law.

South Okanagan Immigrant and Community Services executive director Cherry Fernandez acknowledged the challenge, but she said Canadian communities are often promoted as diverse and welcoming, but it’s only “on paper” while authorities rely on federal laws to enforce hate crimes.

“But that threshold is so high,” Fernandez told iNFOnews.ca. “Too often they have to prosecute on something else like assault. Rarely is it going to get to that level, so there’s obviously quite a huge gap between a hate crime and harassment we see on the street.”

The City of Penticton has not agreed to requests for interviews with staff or with Mayor Julius Bloomfield. Penticton RCMP have not responded to inquiries from iNFOnews.ca.

Council has given the bylaw two readings so far, but it’s not clear when it will be up for final adoption.