Underneath the Golden Boy - Robson Hall Faculty of Law

60 Underneath the Golden Boy
(c) Deliberately inflicting on the group conditions of life intended to bring
about its physical destruction. 119
119
There are some significant differences between this section and s. 318 of the Criminal Code
(which it would replace). This is for several reasons. One is to have the provision correspond
more closely, though not completely with, Article II and III(c) of the Convention on the
Prevention and Punishment of the Crime of Genocide (hereafter the “Genocide Convention”).
Another is to have the provision more narrowly and precisely drafted to prevent unnecessary
interference with freedom of expression.
The substantive provisions of s. 318 of the Criminal Code read:
“(1) Everyone who advocates or promotes genocide is guilty of an indictable offence and
liable to imprisonment for a term not exceeding five years. (2) In this section, "genocide"
means any of the following acts committed with intent to destroy in whole or in part any
identifiable group, namely, (a) killing members of the group; or (b) deliberately inflicting
on the group conditions of life calculated to bring about its physical destruction. (4) In
this section, "identifiable group" means any section of the public distinguished by colour,
race, religion, ethnic origin or sexual orientation.”
Article II of the Genocide Convention reads:
“In the present Convention, genocide means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as
such (a) killing members of the group; (b) causing serious bodily or mental harm to
members of the group; (c) deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part; (d) imposing measures intended
to prevent births within the group; (e) forcibly transferring children of the group to
another group.”
Article III of the Genocide Convention reads: “The Following shall be punishable: (a)
genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit
genocide; (d) attempting to commit genocide; (e) complicity in genocide.”
The terminology of this proposed section directly and publicly incites genocide is closer to
Article III than advocates or promotes genocide and (at least with the proposed definition of
incites) is narrower and more precise. Similarly, sexual orientation (and several of the other
identifiable groups referred to in proposed s. 3 and covered in the rest of the proposed Act’s
provisions) is omitted from this section, and the description of the groups referred to in this
section is identical to that of Article II of the Genocide Convention.
The definition of genocide in this section adds “causing serious bodily harm to members of the
group.” As this is clear enough, there is no compelling reason to omit it, as 318(2) of the
Criminal Code did. However, this still falls short of Article II(c) of the Genocide Convention
by omitting mental harm. Because of the potential vagueness and far-reaching applications of
the term mental harm, it is not included here.
Proposed clause 2(c) departs from s. 318(2)(b) of the Criminal Code and Article II(c) of the
Genocide Convention in using the word intended rather than calculated. This is to prevent
possible overbreadth and uncertainty as the word calculated is not limited in its potential
meaning to intended. It could also mean, for example, “fitted, suited, apt or likely” (see
definitions in Words and Phrases Judicially Defined in Canadian Courts and Tribunals, volume
2, Thompson Canada Ltd., 1993, at p. 2–5).