Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-003-00
Last-Modified: 1997/01/20
Source: Department of Justice Canada

3.0 PRESENT LAW

3.1 Case Law and Proposals for Reform

Hate-motivated criminal conduct is not ignored by the
present criminal law. For example, instances of assault or
of damage to property motivated by the attacker's hatred of
a person's actual or perceived race, colour, religion,
ethnic origin, et cetera, are treated more severely by the
criminal courts for the purpose of sentence.

In R. v. Ingram and Grimsdale <58> the accused persons, 21
and 18 years old respectively, had attacked a Mr. Kanji, a
native of Tanzania who had recently arrived in Toronto. They
initially assaulted him in a subway car, then, after he had
left the car, followed him and pushed him off the subway
platform onto the tracks below. The victim severely
fractured both legs and suffered severe damage to the knee
joints. The trial judge found that the attack was completely
unprovoked and was racially motivated. The accused were
convicted of assaulting Mr. Kanji and causing him bodily
harm. The trial judge imposed a sentence of 23 months'
imprisonment on Ingram and 16 months' imprisonment on
Grimsdale. The Crown appealed the sentence. Dubin J.A. held
that the trial judge erred in failing to hold that the
racial motivation for the attack was an aggravating factor
to be taken into account at the sentencing stage, just as it
would be an aggravating factor if the victim were elderly,
feeble or retarded.<59> He asserted that an assault that is
racially motivated attacks the very fabric of Canadian
society by eroding the fundamental principle that every
member of society must respect the dignity, privacy and
person of the other; that it renders the offence more
heinous; that such offences invite imitation and repetition
and incite retaliation; and that this danger is even greater
in a multicultural, pluralistic, urban society. The sentence
to be imposed in such a case must be one that expresses the
public's abhorrence for such conduct and its refusal to
countenance it.<60> Accordingly, the sentence was increased,
to a term of two and one-half years' imprisonment for
Ingram, apparently the more aggressive of the two, and a
term of two years' imprisonment for Grimsdale.

In R. v. Lelas,<61> the accused had pleaded guilty at trial
to three charges of mischief to property, the value of which
exceeded $1,000. The accused and a companion had taken cans
of spray paint and used them to paint swastikas on a nearby
synagogue, a Hebrew school, and an automobile. The accused,
22 years old, had been involved in several white supremacist
groups, and subscribed to the teachings of Ernst Zundel,
which claimed that the Holocaust was a hoax. After this
incident, there was an outbreak of the daubing of swastikas
on synagogues across Canada. The accused had cooperated with
the police, had admitted to the crimes, and had apologized
to the Jewish community. At trial, he was sentenced to six
months' imprisonment concurrent on each charge, together
with two years' probation. On appeal of the sentence,
Houlden J.A. argued that an offence that is directed against
a particular racial or religious group is more heinous, as
it attacks the very fabric of our society; that several
similar incidents occurred within a brief period of time
after the commission of these offences; that the desecration
of a place of worship is a serious matter, because it not
only damages the physical structures of the buildings but
also causes emotional injury and upset to the members of the
congregation; and that the accused's acts were done to
strike fear and terror and to cause emotional upset to the
Jewish comrnunity.<62> "When mischief is racially or
religiously motivated and is done to cause emotional injury
or shock to a particular segment of Canadian society, it
calls for a far more severe penalty than mischief which is
done merely to damage property."<63> Accordingly, the
sentence was increased to imprisonment for one year
concurrent on each count, with the probation order to stand.

In R. v. Simms,<64> the accused Simms and others went to the
home of a Mr. Rutherford who, the accused believed, some 30
years before had broadcast a tape that identified a person
as a member of the S.S., and the broadcasting of which, the
accused believed, had caused the person so identified to
commit suicide. At Mr. Rutherford's house, the accused and
another person, Swanson, attacked the victim. Simms kicked
at Mr. Rutherford while Swanson struck him in the head with
a stick. As a result of the blow, the victim suffered
permanent blindness in one eye. Simms claimed that he
belonged to several white supremacist and fascist
organizations. At trial, he was given a sentence of 60 days'
imprisonment on a guilty plea to simple assault, while
Swanson was given a sentence of five months' imprisonment on
a guilty plea to aggravated assault. The majority of the
court held that the racially inspired assault required
strong deterrent sentences and therefore increased the
sentence to 12 months' imprisonment for Simms and 18 months'
imprisonment for Swanson.<65>

These cases clearly show that the fact that an accused was
motivated to commit a crime by reason of hatred of a
person's actual or perceived race, religion, colour, ethnic
origin, et cetera, is an aggravating factor that should be
used by judges to increase the term of imprisonment at the
sentencing stage.

What are the potential advantages or disadvantages of
dealing with hateful motivation at the sentencing stage? One
reason that the British government uses for not creating a
crime of racial harassment is that it would mean that
prosecutors would have to prove the element of racial
motivation, making it difficult to obtain convictions.<66>
Admittedly, this is true. But assuming that a prosecutor
seeks to increase the penalty for a crime because an accused
acted out of hateful motivation,  evidence of such
motivation must be produced. If introduction of evidence of
hateful motivation is sought at the sentencing stage, and
the accused objects to the evidence of such motivation, is a
lesser standard of proof needed than would be required at
trial?

Applying general sentencing principles, the answer to this
is clearly no. In R. v. Gardiner,<67> the Supreme Court of
Canada held that any facts relied upon by the Crown in
aggravation at the sentencing hearing, if contested by the
accused, must be proved beyond a reasonable doubt, not by
the civil standard of proof on the balance of probabilities.

However, it should be pointed out that the Court in Gardiner
also stated that the strict rules that govern at trial do
not apply at a sentencing hearing, and, more particularly,
that the hearsay rule does not govern the sentencing
hearing. "Hearsay evidence may be accepted where found to be
credible and trustworthy."<68> Thus, it appears that,
although the Crown must prove disputed circumstances beyond
a reasonable doubt, such proof may be met by the use of
hearsay evidence,<69> although there is some dispute on the
issue at least as regards the voluntariness rule in respect
of a statement made to a person in authority.<70>

Thus, an advantage of dealing with the issue of hateful
motivation at the sentencing stage appears to be that
evidence of such motivation may be proved beyond reasonable
doubt by hearsay. But it may be asked if this is a
substantial advantage over introducing such evidence at
trial. Evidence of an accused's motivation could include
statements made at the time of the attack, evidence of
belonging to or sympathizing with white supremacist or neo-
fascist organizations, et cetera. Arguably, the introduction
of such evidence at the trial stage will prove to be no
great disadvantage to the prosecution (given that at the
sentencing stage, such evidence, if disputed, requires proof
beyond a reasonable doubt in any event), and will have the
decided advantage of placing the accused's hateful
motivation up-front in the trial itself.

In the specific context of hate-motivated crimes, it has
been advocated that the present law's approach is
unsatisfactory and should be changed to denounce such
motivation more forcefully. For example, in the
Parliamentary Committee Report Equality Now!<71>, it was
argued that racially motivated crimes must be punished and
must be seen by the public to be severely dealt with. It
therefore recommended that "Justice Canada should prepare
amendments to the Criminal Code to allow judges to impose an
additional consecutive sentence when the principal criminal
act is racially motivated."72 The response of the Minister
of Justice was to agree with the aim of the proposal, but
not with the means put forward to implement it. The Minister
stated that the then recently created Canadian Sentencing
Commission would be asked to consider the case of racially
motivated crimes in examining the possibility of
establishing sentencing guidelines to reduce disparity among
sentences.<73>

The Sentencing Commission, in existence from 1985 to 1987,
proposed a series of reforms that included the creation of a
permanent Sentencing Commission and presumptive sentencing
guidelines that could be departed from in accordance with a
series of primary aggravating (or mitigating) factors.<74>
The list of primary aggravating factors included the
"[p]resence of actual or threatened violence",

"[m]anifestation of excessive cruelty towards victim", and
"[v]ulnerability of the victim, due, for example, to age or
infirmity".<75> However, no primary aggravating factor was
suggested that focussed exclusively on the fact that the
accused was  motivated by hatred of the victim's actual or
perceived race, colour, religion, ethnic origin, et
cetera.<76> And, to date, no sentencing guidelines have been
created.

Nonetheless, interested organizations continue to press for
reform in this area that would involve amending the Criminal
Code to denounce hate-motivated violence more forcefully. For
example, B'nai Brith Canada argues that, among reforms that
should be made to the criminal law regarding hate-motivated
violence, the principle that hateful motivation be used as an
aggravating factor to increase sentence should be codified,
possibly as an add-on sentence akin to the provision in the
Code that creates a consecutive sentence where a firearm was
used in the commission of a crime (Code section 85); that
specific various hate crimes be created (e.g., where the act
is one of vandalism against a synagogue, mosque, Sikh temple
or church); and that a hate crimes statistics act, similar to
that enacted in the United States, should be created.77 Also,
a national symposium on women, law and the administration of
justice recommended that the Criminal Code be amended, in
part, to provide that acts of racism be deemed to be
aggravating factors in the commission of a crime.<78>

3.2 Summary

This chapter has shown how our criminal law now combats
cases of hatemotivated violence. Case law, arising out of
appeals to higher courts where a lesser sentence had
originally been imposed by the trial court, has led to this
sentencing principle: evidence of criminal conduct motivated
by hatred of a person's actual or perceived race, colour,
religion, ethnic origin, et cetera, constitutes an
aggravating factor that increases the penalty at the
sentencing stage for committing the basic crime. A crime
committed because of such motivation is seen as being
particularly heinous because it attacks the very fabric of a
multicultural, pluralistic society.  However, the way the
present law addresses such behaviour has been criticized.
The major criticism is that a more public condemnation of
such conduct is needed. As  - a result, some have argued the
need for amendments to the Criminal Code, such as an
amendment that would allow the court to impose a consecutive
sentence where it is proved the crime was racially
motivated, as well as for the creation of a crime or crimes
of hate-motivated behaviour, such as a crime of vandalism of
a religious institution.

In the chapters to follow, this paper will examine options
for reform of the criminal law in combatting hate-motivated
violence, beginning with what perhaps is the first question
that should be considered: However the criminal law should
be reformed to better combat hate-motivated violence, whom
should the criminal law protect?

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