Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-000-01
Last-Modified: 1997/01/19
Source: Department of Justice Canada


                           EXECUTIVE SUMMARY

The Study

The purpose of this study is to examine how Canada's
Criminal Code should address what is often referred to as
racially motivated violence. Thus, this paper is restricted
to considering various responses by the criminal law to the
problem: it does not address civil or other remedies that
lie outside the domain of the criminal law, such as creating
a civil damages action relating to hate-motivated violence,
or using various human rights commissions to combat this
problem more effectively.

Methodology

The study relied for its analysis on an examination of legal
periodicals on the topic of racially motivated violence in
several jurisdic ions. As well, additional information on
the topic was provided by reports from government
organizations (e.g., in England, reports on the topic from
the Home Office), reform-minded organizations (e.g., the
Australian Law Reform Commission) and private organizations
(e.g., in Canada, the League for Human Rights of B'nai
Brith, and in the United States, the American Anti-
Defamation League). Also, a selective, albeit not
systematic, examination was made of newspapers and
magazines, both Canadian and foreign, to obtain information
on specific examples of racially motivated violence. The
criminal law of certain foreign jurisdictions was also
examined to see how they respond to the problem of racially
motivated violence. These were the United States, England,
Australia, New Zealand, France, Germany and Sweden. These
countries, it was felt, would provide a useful overview of
possible directions for reform in this area.

Findings

Given the purpose of the study -- to explore how the
criminal law should combat the problem of racially motivated
violence -- number of options present themselves.

The first option is to have the criminal law do nothing to
respond to the problem of hate-motivated violence. This
would mean that evidence of hatred of a person's actual or
perceived race, colour, religion, ethnic origin, et cetera,
should in no way be used to increase the penalty for
committing the basic crime, and so would be a change from
the present criminal law. The one advantage of this option
is that, for those who believe strongly in freedom of
expression, it protects a person's most repugnant beliefs.
Its disadvantage is that it rejects the use of the criminal
law to denounce hate-motivated conduct and would weaken the
protection that the criminal law now affords to minority
groups.

The second option is to immediately create a federal hate
crime statistics act to obtain more information on the
incidence of hate-motivated violence in Canada. The
advantage of this option is that it would provide a national
picture of hate crime activity in Canada: it would enable
Canadians to obtain needed information about these crimes
and who commits them. Also, it might help spur the
development of collecting such data at the local police
level. The disadvantage of this option is that it might be,
at this point in time, an ineffective use of federal
resources; that is, until more collection of such data is
carried out at the municipal and provincial levels.

The third option is that the present law be maintained: that
the only response of the criminal law to hate-motivated
conduct should continue to be use of evidence of
hatemotivated conduct as an aggravating factor to increase
the penalty for the basic crime beyond that which is
normally imposed through the application of judge-made
sentencing principles. This option's advantage is that it
views hateful motivation as part of a series of aggravating
factors used to enhance the penalty for eommitting a basic
crime that is capable of broad application; also, it offers
the familiarity that comes with present practice. Its
disadvantages are that the role of aggravating factor has
had to be determined by appeal courts following cases where
a lesser sentence had been imposed at trial, and that it is
not the most effective way to publicly denounce such
conduct.

The fourth option is to set out specifically, in sentencing
guidelines or in the Criminal Code, that the fact that a
person has committed a crime by reason of hatred of
another's actual or perceived race, colour, religion, ethnic
origin, et cetera, should increase the penalty for
committing the basic crime. This could be done as part of a
scheme for setting out aggravating factors generally, or by
having a specific Code provision that enhances the penalty
for a crime when it is hate-motivated. The advantage of this
option is that it would better denounce such conduct by
setting it down publicly, especially if the Code were used
for this purpose. Its disadvantage is that this approach
arguably does not fully denounce the distinct harm caused by
such conduct.

The fifth option would build into the actual definitions of
certain crimes, such as assault and mischief, provisions
providing for an automatic penalty enhancement where the
crime is hate-motivated. Its advantage would be to strongly
denounce certain criminal conduct. However, this approach
depends on selection of only a few basic crimes for the
purpose; otherwise, the definitions of several crimes would
have to be so amended, which would lead to lengthy
repetition. Moreover, like the preceding option, it assumes
that hatemotivated conduct is merely a more serious instance
of the basic crime, rather than something harmful in its own
right.

The sixth option is to create a specific crime of
institutional or religious vandalism, and another crime of
bias intimidation that would have as part of its definition
the commission of certain general crimes, such as mischief,
assault, or threatening harm, by reason of a person's actual
or perceived race, colour, religion, ethnic origin, et
cetera, and which would be more severely punished than the
general crime. Its advantage is that it would recognize the
distinct harm of hate-motivated crimes and denounce them
with the maximum possible impact of the criminal law. Its
disadvantage would be, on the one hand, to duplicate
existing law and, on the other hand, to adopt an ad hoc
approach to the criminalization of hate-motivated conduct by
only singling out some criminal conduct for penalty
enhancement.

The seventh option argues for the creation of a general
crime of hate-motivated violence. Its advantage is that it
would create a principled approach to the issue, so that any
criminal conduct that is hate-motivated could be prosecuted
pursuant to this general crime. Its disadvantage is its
vagueness, that it might have to be further defined by the
use of a schedule to identify specific offences that would
fall under it, that the broader it is the more it could
stretch the bounds of credulity, and that it might result in
the creation of a parallel criminal code relating to hate-
motivated violence that would destroy the cohesion and unity
of the present Criminal Code.

The eighth option calls for an amendment to the definition
of the crime of first-degree murder so that hate-motivated
murder would fall within that definition. Its advantage is
that it would denounce the worst kind of hate-motivated
violence_hate-motivated murder. There does not appear to be
any disadvantage to this proposal.

The ninth option is that, should a crime or crimes of bias-
motivated violence be created, incitement to commit such
violence would be caught by the criminal law. No special
crime need be created, given that the general rules
governing incitement, et cetera, to commit a crime would
apply once a specific crime (or crimes) of hate-motivated
conduct is created. There does not appear to be a
disadvantage to this option.

The tenth option is that, if a crime (or crimes) of hate-
motivated behaviour is created, a principled approach to
determining the penalty for the crime should preferably be
adopted, such as having the maximum penalty for the crime
equal one and one-half times that for committing the basic
crime. A disadvantage of this option is that this range may
be viewed as being too high, and that a better approach may
be to raise the penalty closer to the maximum penalty range
existing in the present law.

The eleventh option would set out the mens rea component for
any hate-motivated crime. It argues that the preferable mens
rea component should be that of purposely or recklessly
harming a victim or vandalizing property by reason of hatred
of the victim's actual or perceived race, colour, religion,
ethnic origin, et cetera. The advantage of this proposal is
its focus on the hateful motivation of the accused. As an
alternative, it is argued that the _mens rea_ component
could include the concept of negligence, but the
disadvantage of such an approach is that it could
criminalize acts of unconscious racism. A crime of hate-
motivated violence so defined would arguably have a minimal
denunciatory and educative impact.

The twelfth option argues that the definition of an
"identifiable group" should protect the members of a group
identifiable on the basis of race, national or ethnic origin,
colour, religion, sex, age, mental or physical disability, or
sexual orientation. The advantage of this option is that it
would extend the protection of the criminal law as regards
hate-motivated violence to the same groups protected from
dicriminatory treatment set out in subsection 15(1) of the
Canadian Charter of Rights and Freedoms. Its disadvantage
might be that it would extend such protection to groups not
at risk of hateful violence because of their belonging to
such groups_for example, the aged. Whatever list of criteria
is chosen, it is strongly argued that "sexual orientation" be
added to the list, given the fact that homosexuals have been
victims of violence because of their sexual orientation.

The thirteenth option generally argues that the definition
of any sentencing provision or of a specific crime or crimes
of hate-motivated behaviour should include those who are
attacked because of their support for members of such
identifiable groups. The advantage of this proposal is that
it would ensure that the criminal law denounce all hate-
motivated behaviour, whether or not the victims belong to
the identifiable group so hated. There does not appear to be
any disadvantage to this option.

The fourteenth option would have consideration given,
ancillary to the creation of a crime or crimes of hate-
motivated violence, to creating a damages provision that
would allow the criminal court, on completion of a trial, to
award punitive damages to the victim of such violence. The
advantage of this proposal is that it would add to the
public condemnation of such activity, as well as provide
some limited recompense to the victim. The disadvantage is
that it might be viewed as not being in pith and substance
criminal law.

The fifteenth option, in light of the Rodney King case in
the United States, suggests that consideration be given to
the creation of a crime of violating a person's
constitutional rights. The advantage of this option would be
to emphasize the importance of the rights and freedoms set
out in the Charter. Its disadvantages, however, are
numerous. They include the difficulty of defining the crime,
and the fact that the limits on double jeopardy protection
in the United States do not apply in Canada.

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