Archive/File: orgs/canadian/canada/justice/disproportionate-harm/dh-002-02
Last-Modified: 1997/01/13

2.5 Relationship Between Hate Crime Deffnitions and the Sentencing Reform Bill

Since a critical provision in the recent sentencing reform
statute (Bill C-41)  calls for enhanced penalties for hate
crimes, there should be some consistency between police
definitions of such crimes and the statutory definition
contained in the Bill. According to Bill C-41, a hate crime
is one which, "was motivated by bias, prejudice  or hate
based on the race, nationality, colour, religion, sex, age,
mental or physical disability or sexual orientation of the
victim". This Bill is
consistent with legislation introduced in other
jurisdictions. For example, proposed amendments to the
Public  Order Act 1986 in England and Wales provide for a
doubling of the maximum penalty  for any offence where the
court is satisfied that the offence was committed on racial
grounds.

Comparing the Sentencing Reform Bill's definition of a hate
crime to the  definitions used by different police forces
reveals several inconsistencies. The  sentencing statute's
definition is clearly broader than several of the police
definitions. For example, the physical disability of the
victim is grounds for augmenting the  penalty for an offence
as a hate crime in the sentencing Bill, but does not figure
in the  definition used by the Winnipeg Police Department or
the Edmonton Police Service. These inconsistencies will need
to be resolved. And, since the sentencing Bill  definition
has received the endorsement of Parliament, a strong
argument can be made  that the police definitions should
conform to the sentencing Bill definition, and not the
reverse.

The final issue to be noted in this section concerns the
nature of the incident reported to the police. In all the
definitions provided above, the act which is the  subject of
an investigation has to be criminal in nature. However, some
jurisdictions do not restrict their attention to potential
crimes. Hate crime statistics have been collected and
analyzed in Maryland since 1981. The definition for
collection  procedures is the following:

     To report an act which appears to be motivated or
     perceived to be motivated by the victim based on race,
     religion or ethnic background (Cook, 1991: 107).

The act is not required to be a violation of any statute.

2.6 Limitations on Official Hate Crime Statistics

2.6.1 Unreported Crimes

A central deficiency of criminal justice statistics is that
a proportion of  incidents are never reported to, or
recorded by the police. This statistic is known as the "Dark
Figure" of crime, and it varies from offence to offence as a
result of a multitude of factors, including public
confidence in the criminal justice system, the seriousness
of the crime, the magnitude of financial incentives to
report, the potential  for embarrassment to the victim and
many other factors (see Hood and Sparks, 1978).  For some
crimes like sexual assault, the so-called dark figure may be
in excess of 90 percent of incidents actually committed,
while for other offences such as theft of a motor vehicle or
break and enter (business residence) the dark figure may be
as low as 5 percent of all incidents.

What is the dark figure likely to be for hate-motivated
crimes? In the absence of reliable data, estimates of the
proportion of unreported hate crimes must be rather
speculative. However, there are several reasons to believe
that of all forms of criminality, hate crimes are likely to
be among the most underreported offences. First, the victims
(direct or indirect) as well as witnesses may fear
additional victimization if the police become involved. The
experience in some other jurisdictions has been that
witnesses are particularly reluctant to come forward in
cases of racially-motivated violence, as these crimes are
frequently committed by gangs or groups of offenders. For
example, in England there have been several such incidents.
In the most recent, a Bengali man was almost killed by a
group of 20 white youths, only one of whom was  charged.
Although the assault took place in broad daylight, the judge
noted in sentencing this offender that the police had met
with "an almost blank wall of silence  in their
investigations", due to apprehension of retaliation
(Manchester Guardian, 1994).

Second, a large number of hate crimes involve damage to
property, and can only be effectively prevented by increased
surveillance. Neither public nor private resources can be
stretched to include continuous monitoring of property. In
several European countries, reporting incidents of hate-
motivated vandalism to the police has provoked further cases
of hate-motivated mischief.

Another reason why hate crimes are not reported to the
police concerns apprehension on the part of victims
regarding the response of the criminal justice system.
Racial minorities are a prime target of hate crimes. In
fact, as police statistics presented later in this report
reveal, they are the primary target of hate crimes involving
violence. These same racial minorities may perceive racially
motivated crimes as part of a larger problem of racism in
some of Canada's major cities (see League for Human Rights,
1993). This perception of racism also includes the criminal
justice system. Thus racial minorities are likely to be
apprehensive of the criminal justice response to a report of
a crime against someone in their community, and this may
well deter them from reporting a crime. In one recent study,
members of the Muslim community in Toronto, for example,
expressed the view that they were not comfortable
approaching the police to report a crime. This reluctance is
likely to be even greater if the crime was motivated by hate
or bias. In this sense, too, hate crimes are unlike other
crimes.   It
is also the case that some immigrants may not trust the
criminal justice system (and specifically police officers)
as a result of negative experiences in their countries of
origin. For such people, there is an additional hurdle to
overcome. Police services must be aware of this and make
additional efforts to reach such individuals.

Victims of hate-motivated crime may be reluctant to report
such crimes to the police on account of adverse reaction to
such disclosures. Members of the gay and lesbian community
may not wish to publicly disclose the fact that they were at
certain locations, or may fear negative repercussions if
they report a hate crime based on their sexual orientation
(See Herek, 1994: 102-103 for a discussion of this form of
"secondary victimization"). Research in other jurisdictions
has clearly shown that the stigma associated with reporting
an "anti-gay" crime has meant that the vast majority of such
crimes remain unreported (see Herek, 1989). One major study
in America found that members of the gay community were the
most frequent targets of hate crimes, although these
incidents were seldom reported to the criminal justice
system (see Coldren, 1991, Herek, 1994). As well, the
attitudes of some police officers towards members of the gay
community may well inhibit the reporting of hate crimes of
this kind. For these reasons alone it would be unwise indeed
to conclude that the number of anti-gay crimes recorded by
the police represents the total number of incidents actually
committed. Testimony before the Parliamentary committee
reviewing Bill C-41, the Bill which prescribes higher
penalties for hate motivated crimes, is revealing in this
respect. A number of Members of Parliament questioned the
utility of including sexual orientation as a ground for hate
motivation since in terms of numbers, "there is not an
outrageous amount" (House of Commons, November 24, 1995,
65:28).

A final reason why hate crimes might fail to be recorded
appropriately has to do with the special investigative
problems. In order for a crime to be classified as a hate
crime, the officer must record some evidence of hate
motivation. In most cases  involving crimes against the
person this means the offender's use of language. Police
officers must pay special attention to the circumstances
surrounding the commission of the offence, and without
special training, this may not be done (see Levin and
McDevitt, 1993: Chapter 12).

There are sound reasons, then, to believe that the incidence
of unreported hate crimes is much higher than crimes in
general. It is also important to point out that variation
exists in terms of the likelihood that different categories
of victim will report to the police. An exploration of this
issue is beyond the scope of the present report,  however,
some statistics from the United States suggest that hate
crimes directed at the gay community are particularly likely
to remain hidden from the criminal justice system. Berrill
(1992: 115) for example, reports findings from a national
survey of  more than 2,000 people in eight cities. The
survey found that 15 percent had been physically assaulted,
42 percent had been threatened with physical violence and
fully 93 percent reported harassment of some kind as a
result of their sexual orientation.Herek and Berrill (1992:
40a) summarize additional survey data and conclude that:

     the sheer number of incidents reported in these studies
     is staggering.....the quantitative and qualitative data
     gathered thus far are a frightening testament to the
     human cost of anti-gay bigotry.

2.6.1.1 Reporting Rates of Hate Crimes in Other
Jurisdictions

Since this is the first document to provide information on
hate crime incidents in Canada, it is obviously hard to make
firm estimates about the percentage of such crimes that are
reported to the police. Our best estimates are
extrapolations from similar data in other jurisdictions.
Home Office data from the United Kingdom in 1981 suggest
that only one racial attack in ten was reported to the
police (see Bowling, 1994). A more resent survey in London
discovered an even lower reporting rate: only five percent
of racial attacks were reported to the police (see London
Borough of Newham, 1987).

The latest British Crime Survey showed that reporting rates
were lower among Afro-Caribbean respondents when racial
motivation was an element of the crime. Thus 30 percent of
racially-motivated offences were reported to the police,
compared to 43 percent of crime incidents without a racial
element (for reasons that are unclear, this effect did not
emerge from the Asian respondents). The authors of a recent
report based upon the British Crime Survey (BCS) concluded:

     The BCS estimate of the number of racially-motivated
     incidents [in England and Wales] is substantially
     higher than that recorded by the police. In England and
     Wales in 1991, 7,882 incidents were recorded by the
     police as having a racial element. This contrasts with
     the BCS 'best' estimate of 130,000 racially motivated
     crimes and threats over the same period (Maung and
     Mirrlees-Black, 1994: 20-21).

In fact, the dark figure is even greater than these figures
suggest, on account of the fact that the police definition
of a racially motivated incident is broader than that used
in the BCS. There is no reason to suspect that reporting
rates for racially-motivated attacks would be any higher
than this in Canada. These data suggest that hate crimes
involving personal injury are among the least likely forms
of criminality to be reported to the criminal justice
system.

2.6.2 Classification Problems

Another reason why a hate-motivated crime may fail to enter
the official statistics is that it is dependent upon an
accurate classification by a police officer. Police officers
are understandably reluctant to undertake a decision about
the motivation of the suspect. Or, failing to appreciate the
importance of determining whether the crime was motivated by
hate, officers may simply ignore the issue assuming that an
assault is an assault, whatever the reason for the attack.
Consider an argument which rapidly escalates into a fight.
In the course of the fight, racial insults are exchanged and
a criminal charge is eventually laid. Was this a hate crime?
Was the assault racially motivated? And if so, was racial
hatred the sole motivation or simply a precipitating factor?
Only the accused knows the answer to this question ,  and he/she is unlikely to be forthcoming on the
issue. Similar problems confront the investigation of
property crimes against minorities. Unless the vandalism
takes a specific form (such as spray painting racist
symbols), it may pass unnoticed as a hate crlme.

Another deficiency of hate crime statistics concerns the
question of representativeness. As noted earlier, only a
minority of sexual assaults are reported to the police. This
means that a portrait of the nature of sexual assault based
upon cases processed by the courts is unlikely to reflect
the true nature of the crime. The same argument applies to
hate-motivated crimes. The portrait of hate motivated crime
that emerges from official statistics may be very different
from the portrait that emerges

For a variety of reasons, then, the hate crime statistics
that have been collected to date probably underestimate the
incidence of this form of crime, as well as  presenting a
distorted view of the kinds of hate crimes committed and the
groups that are most likely to be targeted.

Conclusion

Extrapolating from research in other countries, it would
appear that only a small percentage of hate motivated crimes
-- perhaps one incident in ten -- are ever reported to the
criminal justice system.

2.7 Data Sources

The data reviewed in this report are drawn from several
sources. However, it  should be clear from the outset that
these sources represent only a fraction of the  groups in
Canada that have a stake in the issue of hate crime. These
data were provided to the Department of Justice Canada in
response to a request for information  sent in 1994 to
police forces across the country as well as to certain
organizations such  as B'nai Brith Canada that are known to
collect statistics relating to hate crimes. The elusive
nature of hate crimes means that perhaps more than any other
form of criminality, a true picture of the prevalence of
this crime can only be obtained by drawing upon diverse
sources. These include criminal justice statistics (such as
police data), victimization surveys, as well as sources
outside the criminal justice system such  as the periodic
surveys conducted by B'nai Brith or the calls made to
gay/lesbian  assistance hotlines.

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