An old Manitoba law created in response to a 1930s newspaper could open up ways to fight antisemitic speech in the 2020s

Could a long-forgotten Manitoba law be a model for how Canadians can fight back against antisemitism and hate of all kinds?

Kenneth Grad thinks it can.

Grad, 40, is a Toronto lawyer completing his PhD at Osgoode Hall Law School. During his dissertation research in Winnipeg, he learned about the Hyman Act, an anti-defamation law unique to Manitoba.

His research earned him the Switzer-Cooperstock Student Prize in Western Canadian Jewish History, an award presented annually by the Jewish Heritage Centre of Western Canada.

The act takes its name from its creator, Marcus Hyman, a respected lawyer and member of the Jewish community who served as a member of the Legislature in the 1930s.

Hyman developed the legislation 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. 

The act received unanimous consent of the Legislature and was passed into law in 1934. It was used that same year by William Tobias, a prominent member of Winnipeg’s Jewish community, who sued Whittaker for defamation against Jews.

Tobias won his lawsuit, obtaining an injunction perpetually restraining Whittaker from defaming Jews and putting his newspaper out of circulation for a year. When it resumed publication, it was a mimeographed version, suggesting Whittaker either could not find or afford a printer. 

The act was never used again by the Jewish community in Manitoba, and Grad could only find two other instances when the act was referenced. But it is still on the books as section 19 of Manitoba’s Defamation Act.

It states Manitobans may sue anyone who writes, publishes or circulates “libel against a race or religious creed likely to expose persons belonging to the race, or professing the religious creed, to hatred, contempt or ridicule, and tending to raise unrest or disorder among the people.”

Manitoba is the only province in Canada that has legislation like this, Grad noted.

Although the act is just a historical footnote today, Grad thinks it could be a valuable tool at a time of rising hate speech of all kinds—and perhaps be a model to other provinces seeking alternative ways to combat hate.

Outside of Manitoba, the only way Canadians can fight hate speech is under the hate-speech provisions of the Criminal Code. The problem with that approach, in Grad’s view, is that criminal law defines hate speech narrowly and the burden of proof is much higher — beyond a reasonable doubt.

Using the Criminal Code has proven difficult and costly, Grad said, and convictions have been rare.

The Hyman Act offers a simpler alternative, he said. Unlike in a criminal case, the bar is lower in a civil suit, with cases being argued on a “balance of probabilities”. It is not necessary to prove beyond a reasonable doubt that someone was wilfully promoting hate, only that it was “more likely than not to be the case” that this was their intent, Grad said.

Currently, pursuing that kind of civil lawsuit is not an option anywhere in Canada except in Manitoba. Grad says the act should get a second look in the province, and across the country. It would not replace criminal law, but add to it.

“We need all the tools we can to fight hate,” he said, noting it could be applied to instances of antisemitism, Islamophobia, homophobia, transphobia and hatred of all kinds.

But before that can happen, people first need to know about the act, he said. In Manitoba, a potential solution “is hiding in plain sight. For this we have Marcus Hyman to thank.”

Grad will discuss his research into the act at an award ceremony, Oct. 5 at 7 p.m. CDT.  To attend the event online, register at this link.