Canada-U.S. Blog Trade Lawyers Cyndee Todgham Cherniak and Susan K. Ross

The Canada Border Services Agency Has Authority To Seize Hate Propaganda

Posted in Border Security, Canada's Federal Government, Customs Law, tariff classification

The Canada Border Services Agency (“CBSA”) is the gatekeeper and hate propaganda is a prohibited importation under item 9899.00.00.00 of the Customs Tariff (Canada).  Don’t bring hate propaganda to Canada and do not send hate propaganda to Canada and don’t attempt to import hate propaganda into Canada – unless you would like the CBSA to seize it and destroy it. See “Border guards stop hundreds of ‘obscene items'”.

A person cannot import into Canada books, printed paper, drawings, paintings, prints, photographs or representations of any kind that constitute hate propaganda within the meaning of subsection 320(8) of the Criminal Code.  “Hate propaganda” is defined in subsection 320(8) of the Criminal Code to mean “any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offence under section 319”. Subsection 319(1) of the Criminal Code criminalizes “communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace”.  Subsection 319(2) of the Criminal Code criminalizes “communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group”.  The term “identifiable group” is defined in section 218 of the Criminal Code to mean “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.”

The CBSA’s policies against the importation of hate propaganda are set out in D-Memorandum D9-1-15 “Canada Border Services Agency’s Policy on the Classification of Hate Propaganda, Sedition and Treason” and D- Memorandum D9-1-17 “Canada Border Services Agency’s Determination Procedures for Obscenity and Hate Propaganda”.

The CBSA’s policies provide further guidance on what may be considered to be hate propaganda.  The CBSA considers to be hate propaganda goods that contain depictions and/or descriptions that advocate or promote genocide or that publicly incite or willfully promote hatred against an identifiable group, distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.  Further, goods may be prohibited as hate propaganda if they advocate or promote the genocide of an identifiable group. Genocide is defined as acts committed with the intent to destroy, in whole or in part, an identifiable group, either by killing members of the group or by deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.  Further, goods that incite or promote hatred against an identifiable group, by incorporating some or all of the following allegations, may be prohibited as hate propaganda:

(a) allegations that an identifiable group is to blame for serious economic or social problems;

(b) allegations that an identifiable group manipulates media, trade, finance, government or world politics to the detriment of society;

(c) allegations that an identifiable group is inferior or superior to another group; and/or

(d) allegations that an identifiable group weakens or threatens society, in whole or in part.

The above list contains examples, but the list is not limited to these allegations.  The CBSA will know hate propaganda when they see it.

The CBSA will make a tariff classification determination whether the goods are hate propaganda or not hate propaganda. In other words, the CBSA will make a classification decision whether the tariff classification is 9899.00.00.00.  The CBSA will make a determination whether the materials target an identifiable group.  If they appear to target an identifiable group, the goods most likely will be detained. In making this determination, the CBSA will look at other determinations contained in the internal Technical Reference System (TRS) (this database is not available for the public to search). All suspect goods not found in the TRS and requiring a determination must be detained and forwarded to the Prohibited Importations Unit (PIU) at Headquarters in Ottawa, where the determination will be made. The TRS is a part of the Customs Commercial System (CCS) and identifies material that has previously been determined by the PIU.

Suspect material takes many forms, including written, visual and audio materials. This commonly includes DVDs, books, graphic novels, magazines and electronic devices.  The CBSA may also target laptops and other electronic devices.  If hate propaganda is contained on an electronic device, that electronic device may be seized.  For example, in 2016, a Canadian had her laptop seized by the CBSA (in addition to paper documents in her possession, when she returned from Germany.  See “Ontario teen who called for ‘white” Canada has laptop seized by CBSA”.  Please also review Can the Canada Border Services Agency Search Electronic Devices?

It is possible to appeal a tariff classification determination that goods are hate propaganda and a prohibited importation. The request for review must be filed within 90 days of the determination that the goods are classified under tariff code 9899.00.00.00.  However, the goods will remain in CBSA custody until their decision is overturned by the Canadian International Trade Tribunal or Federal Court of Appeal or Supreme Court of Canada.  This process will take many years.

So, it is best to err of the side of caution and not bring to Canada, send to Canada, or import into Canada goods that the CBSA may consider to be hate propaganda.  Canadian values will be applied in making the determination whether the goods constitute hate propaganda.  Decisions can be influenced by current events that impact on Canada’s views on what is and what is not hateful.  Items that breach the “community standard of tolerance” most likely will be considered to be hate propaganda.

Canada does not permit unfettered freedom of expression.  Section 1 of the Charter of Rights and Freedoms sets reasonable limits of guaranteed rights. Section 1 provides:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Limits on hate speech and hate propaganda are justified in a free and democratic Canada – in my Canada.

Canada is a multi-cultural society.  Canada is a tolerant society. There is no place in Canada for hate propaganda of any form of white supremacists, nazis, neo–nazis, racists and other groups who target other human beings. There is no place in Canada for hate propaganda that incites violence against our fellow man/woman/transgender persons/non-gender persons.  To be blunt, Canadians and Canadian residents do not want hate propaganda crossing the Canadian border.  I denounce those who create hate propaganda and do not want it in my society.  The CBSA works for all of us to keep this vile and disgusting garbage out of Canada.  I am grateful for the CBSA officers who must see this reprehensible trash so that I do not have to come into contact with it.