Could a long-forgotten Manitoba law be a model for how Canadians can fight back against antisemitism and hate of all kinds?
Toronto lawyer Kenneth Grad thinks it can.
Grad, 40, is completing his PhD at Osgoode Hall Law School. During his dissertation research at the Jewish Heritage Centre of Western Canada, he learned about a unique-to-Manitoba anti-defamation law.
The law, colloquially known as the Hyman Act, takes its name from its creator, Marcus Hyman, a lawyer and member of the Jewish community who served as a member of Manitoba’s legislature in the 1930s.
Hyman introduced the law in response to the virulent antisemitism being promoted by Winnipegger William Whittaker, founder of the pro-Nazi Canadian Nationalist Party and editor and publisher of an antisemitic newspaper called The Canadian Nationalist.
It received unanimous consent of the legislature and passed into law in 1934 as an amendment to Manitoba’s Defamation Act. Section 19 entitles persons “belonging to the race, or professing the religious creed, to sue for an injunction” to prevent the circulation of libel that exposes persons of that race or religious creed to “hatred, contempt or ridicule.”
The law was used the same year it was passed by William Tobias, a member of Winnipeg’s Jewish community, who sued Whittaker for defaming Jews. Tobias won his lawsuit, obtaining an injunction perpetually restraining Whittaker from defaming Jews and putting his newspaper out of circulation.
From what Grad could tell, the act was never used again by the Jewish community in Manitoba.
Valuable complement
Grad thinks this provision of the Defamation Act could be a valuable complement to current federal hate speech law, which falls under the Criminal Code, or provincial human rights codes.
It’s easier to use, Grad says, since the Criminal Code defines hate speech narrowly and the burden of proof is high — beyond a reasonable doubt.
The act, which enables the bringing of civil actions, requires a lower bar for proving defamation. Hate speech cases can be argued on a “balance of probabilities,” Grad said, noting that plaintiffs only need to show it was “more likely than not to be the case” that hate was intended.
British Columbia, Alberta, Saskatchewan and the Northwest Territories are the only jurisdictions with human rights legislation that specifically contemplates an action for hate speech. And the definition of hate speech in human rights legislation is, Grad notes, the same as in the Criminal Code — “very narrow.”
Hate speech can be the basis of a civil defamation suit, Grad adds, but the defamation has to be individualized. Defamation of an entire minority group cannot ground a common law claim, the Supreme Court of Canada has said.
Manitoba is the only clear example where a province has amended the common law standard and said you could bring a group defamation claim, Grad said. “It’s very unique.”
Grad thinks the law should get a second look in that province, and across the country. “We need all the tools we can to fight hate,” he said, noting it could be applied to instances of antisemitism, Islamophobia and hatred of all kinds.
It is, he said, a potential solution “hiding in plain sight. For this we have Marcus Hyman to thank.”
Belle Jarnewski, executive director of Winnipeg’s Jewish Heritage Centre, says she didn’t know about the Hyman Act until Grad’s research.
“That was the first I heard of it,” she said. “It was an illuminating moment.”
For Jarnewski, the act could be another tool to fight hate, especially if it is updated to include transphobia and homophobia.
“The fact it was once used so successfully shows how effective it can be,” she said.
For his groundbreaking research, on October 5, Grad was awarded the Switzer-Cooperstock Student Prize in Western Canadian Jewish History, presented annually by the Jewish Heritage Centre.
You can read an article about Grad’s research in Canadian Jewish Studies at https://cjs.journals.yorku.ca/index.php/cjs/article/view/40263/36508
