The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: orgs/canadian/canada/justice/disproportionate-harm/dh-004-01

Archive/File: orgs/canadian/canada/justice/disproportionate-harm/dh-004-01
Last-Modified: 1997/01/15
Source: Department of Justice Canada


There are several reasons why we need better information on
the incidence and nature of hate crimes in Canada than is
currently available. First, because the magnitude of
theproblem has yet to be fully appreciated by many people,
and one reason for this is that hate crimes are under-
reported. In this respect, Canada differs from the United
Kingdom, where as Fitzgerald (1995:4) notes:

     we no longer need to measure the problem in order to
     prove that it exists. That is, despite the variation
     between results generated in different places by
     different methods, the cumulative evidence makes it
     impossible to deny that there is a problem.

Second, we need to understand which groups are being
targeted and to allocate criminal justice resources in an
efficient and effective manner. Third, better information
would make it possible to evaluate the efficacy of the
justice system (and community-based) response.

4.1 Hate Crime Statistics: Data Collection Issues

One conclusion, then, from the research initiative that gave
rise to this report is  that we need better information
about the incidence of hate crimes in Canada. There  are
several ways that our knowledge of hate crime can be
improved. One is simply to encourage more police forces and
special interest groups to collect data relating to hate
crime incidents. Over time, this will surely result in
better data. However, inconsistencies will still remain, and
in all likelihood certain forms of hate crime will remain
highly under-reported. The alternative solution is to
promote a truly national  data-collection initiative. At
this point a summary of the arguments for and against such a
strategy are made.

4.2 Advantages of Collecting National Data

4.2.1 Consistency

Defining a hate or bias crime is far from easy. As noted in
earlier sections of  this document, a large number of
definitions have been proposed and are in use in Canada and
elsewhere, and it is clear that different organizations
follow different  approaches to data collection. There is
even considerable variability between police  forces (see
earlier sections of this report). The result is inevitably a
lack of consistency. If there were a national strategy
focused upon the collection of such data, we would have a
much more accurate idea of the true nature and scope of hate
crime  activity in the country. This knowledge would then
inform policy development in terms of issues  such as
penalty enhancements for hate crimes, creation of new
offences, revisions to the statutory maximum penalties and
so forth.

4.2.2 Recognition of Harm

The principle of proportionality is central to the
sentencing process in Canada. This means that the severity
of sentences should be directly proportional to the
seriousness of the crimes for which they are imposed. The
principle of proportionality  will be enshrined in a
statute, as a result of the Sentencing Reform Bill (C-41)
. This Bill contains
a provision (s. 718.1) which states that, "A sentence must
be proportionate to the gravity of the off nce and the
degree of responsibility of the  offender." Gravity can be
considered the harm threatened or inflicted. Hate or bias
crimes carry an added dimension of crime seriousness. This
dimension includes  l elements such as the threat to other
members of group victimized, as well as the  affront to the
general community (Roberts, 1994a). So long as most hate
crimes (with a few exceptions) continue to be hidden from
criminal justice awareness, the element of harm will not be
fully reflected in sentencing patterns at the trial court

4.2.3 Integrating Different Components of the Criminal
Justice System

When the Sentencing Reform Bill (C-41) becomes law (early in
1996), there will be an even greater need to collect
accurate data about the incidence of hate crimes. One
provision in the Bill (s. 718.2 (a) (i)) provides a
statutory aggravating circumstance where there is "evidence
that the offence 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 provision reflects current case law and is
consistent with enhanced penalties for hate crimes that are
found in other jurisdictions such as the United States (see
Roberts, 1994a). If the aggravated penalty provision
contained in Bill C-41 is to be more than purely symbolic,
it will be necessary to have reliable information about hate
crimes. This is what I refer to as integrating the
information collecting function and the sentencing process.
In fact, the successful prosecution of hate-motivated crimes
will depend upon systematic investigation of evidence
relating to the motivation of the offender. If this is not
done, hate-motivated crimes will seldom result in the
enhanced penalty prescribed by the Sentencing Bill.

There is also a strong argument to be made that better
defining hate crimes will have a positive pedagogic effect
on the criminal justice system and society in general.At the
present time, many crimes that are motivated by hate or bias
are not recognized as such by the system or in terms of
social reaction. A few years ago in Toronto, a number of
youths participated in the killing of a man that they
believed to be homosexual. This was a clear case of a hate
crime, and yet no mention of this was made in media reports
at the time. According to the new sentencing Act, a harsher
sentence should be imposed for a crime (in this case the
conviction was manslaughter)  which was motivated by hate.
If acknowledgement of this were to be entered into the
reasons for sentence   and if these
reasons were then publicized, the result may well  be
increased public and professional awareness of hate-
motivated crime.  One of the most compelling arguments in
favour of national statistics is that  minority groups
themselves -- the people most directly affected by hate
crimes -- are  strongly in favour of better information
regarding the incidence and prevalence of this  kind of
crime. Finally, many of the policy recommendations by groups
such as the  B'nai Brith of Canada cannot be implemented
without having systematic data on hate  crimes across the

4.2.4 Ensuring That All Target Groups are Covered

In the course of describing hate crime statistics from other
jurisdictions, we have seen that hate crimes are directed at
a number of different targets. By leaving  the task of data
collection to specific groups, we run the risk of failing to
take into account hate crimes directed at groups without
sufficient resources to collect such data, or groups who are
not recognized by criminal justice authorities as legitimate
targets of hate-motivated crime.

4.2.5 Utility to Local Communities

There is also a utility to communities in having reliable
hate crime statistics. It  is important for a community to
know the extent of the problem, and to be able to  place the
problem in some kind of national context. As well,
communities need to  know where the problem is greatest and
who is being targeted. They can only know this if reliable
statistics exist.

4.2.6 Following Best Practices Elsewhere

It is also important to note that the national collection of
hate crime statistics is  consistent with the practice
followed in other jurisdictions that have a great deal in
common with Canada, namely the United Kingdom and the United

4.3 Disadvantages of National Collection

4.3.1 Resources

One argument against the national, standardized collection
of this kind of  information would simply be that it would
require additional effort by police forces across Canada, at
a time when police resources are stretched to the limit.
Since hate  crimes tend to be concentrated in the major
urban centres, would it not make more  sense to invest in
data collection in cities, and leave rural communities out
of the  exercise? While it is true that hate crime in Canada
is almost exclusively an urban  phenomenon, this argument
assumes that the collection of information on hate
motivation would be onerous for police forces. This is not
necessarily true. The  collection of hate crime statistics
does not necessitate the creation of a specialized Hate
Crime Unit, although such a step obviously makes sense in
Canada's largest police forces. For small, rural
communities, a requirement that hate motivation be explored
would require little additional effort, since the number of
incidents would be so small. Without a more thorough cost-
benefit analysis it is hard to make definitive statements,
but the additional investment of police resources might not
be excessive and would  have important practical and
symbolic significance.

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