Indigenous man faces rare hate-speech charge

The lawyer for an Indigenous B.C. man charged with inciting hatred says she's wondering why the Crown decided to level a rarely used section of the Criminal Code against a troubled man who has himself been a victim of systemic racism.

According to court records obtained by the CBC, Jonathan Michael Brennan was charged earlier this month under Section 319 of the code — one of two hate speech provisions — after allegedly threatening to "cause death or bodily harm to people of brown skin" in Surrey.

He's one of only four people charged with hate speech offences in B.C. in the past five years.

Brennan's lawyer says she's never seen a situation like it. 

And at a time when police say anti-Asian attacks are on the rise, she questions the decision to lay the only hate speech charge in recent memory against a Métis man with a history of substance use and apparent mental health issues.

"I was certainly surprised that the charge was approved as it had been recommended by police," said Kristy Neurauter, Brennan's lawyer.

"It's not a charge I've ever ever heard of being approved in the roughly 10 years I've been practising. And it's particularly unusual because my client is an Indigenous man."

'He started to scream'

Brennan was released on $1,500 bail on June 1, a day after his arrest.

A Crown lawyer told the judge who released the 32-year-old that RCMP had received a complaint about a man looking into parked cars and holding a yellow bottle that he claimed was full of kerosene.

"He started to scream that he was going to pour kerosene on brown people," the prosecutor claimed.

Police allegedly dealt with a number of people who had run into Brennan before arresting him. The Crown lawyer said he appeared agitated and hurled further racial epithets.

The liquid in the bottle allegedly turned out to be citronella oil, which can be used for lighting garden lamps and torches.

Brennan is forbidden to have any weapons, knives or incendiary devices as part of his bail.

He must also report for psychiatric intake, assessment or treatment.

Hate speech offences

The case highlights the complexity of prosecuting hate crimes in Canada.

According to Statistics Canada, Canadian police reported 1,798 criminal incidents motivated by hate in 2018, the second-highest number in a decade. Only 31 per cent of those crimes were solved, and of those, 68 per cent resulted in charges against one or more individuals.

Most crimes involving hate are treated as regular Criminal Code offences like assault or uttering threats with the role of bias, prejudice or hate considered as an aggravating factor at sentencing.

But Section 318 of the Criminal Code deals specifically with promoting and advocating genocide, whereas Section 319 tackles the public incitement and wilful promotion of hatred.

Charges under Section 319 have led to some of the best known cases in Canadian legal history, including the conviction of Jim Keegstra, an Alberta teacher who was charged with teaching anti-Semitism to his students.

The Supreme Court of Canada upheld Keegstra's conviction, finding that while the Criminal Code's hate speech provisions infringed on freedom of expression, the infringement was justified. Keegstra died in 2014.

The subsection Keegstra was charged under — the wilful promotion of hatred — requires the provincial attorney general to sign off on a charge.

The attorney general would not have had to sign off on the charge Brennan faces, which is inciting hatred against an identifiable group in a way that might breach the peace.

In recent years, judges in other provinces have convicted people of inciting hatred for spray painting racist threats against Syrians and for spreading white supremacist propaganda through the internet.

The charge Brennan faces could result in a prison sentence of up to two years.

'A very disadvantaged life'

According to B.C.'s Crown prosecution service, the charge against Brennan is the only hate speech offence currently before the province's courts.

The Crown has only proceeded on four counts under Section 318 or 319 in the past five years. Two of those were stayed and a third resulted in conviction.

Neurauter said she will be seeking a stay of proceedings.

According to a B.C. Court of Appeal decision from 2015, Brennan has a lengthy criminal record and history of substance use issues.

He was appealing the terms of a sentence for an aggravated assault conviction related to an attack in which he slashed the face of a man as an alleged warning to members of the community that the man was not disclosing his HIV status.

As part of those proceedings, Brennan was the subject of a so-called Gladue report — which allows a judge to consider for sentencing the circumstances of an Indigenous offender's life and the impact of colonialism.

The appeal court decision says the report detailed serious childhood neglect and abuse that spoke to the "devastating intergenerational effects of the collective experiences of Aboriginal peoples."

"He had a very disadvantaged life and what was put on the record at this bail hearing by Crown counsel supports someone who was very unwell at that time," said Neurauter.

"Whether or not what was allegedly said was said, I'm pretty surprised that Crown approved it."

Brennan's next court date is Sept. 30. None of the charges have been proven in court.