Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-004-00
Last-Modified: 1997/01/21
Source: Department of Justice Canada

4.0 WHO SHOULD BE PROTECTED?

4.1 Problems and Issues in Deciding Whom to Protect

Although the term racist violence or racially motivated
violence is often used to describe criminal conduct
motivated by a person's actual or perceived hatred of a
victim's race, ethnic origin, religion, et cetera, there are
nonetheless difficulties with the concept of race.

In the realm of anthropology, there appears to be a
prevailing view that the concept of race is a useless one.
For example, Ashley Montagu claims that "[t]he idea of
'race' represents one of the most dangerous myths of our
time ...."<79> Montagu explains that there are generally
three major population groups_the Negroid or black, the
Caucasoid or white, and the Mongoloid. However, it is
preferable to call these major groups rather than races. The
use of the term "major group" is purely arbitrary,
indicating only that the likenesses in certain characters
exhibited by some populations appear to link more closely
than to other populations.<80> On the other hand, as David
Goldberg points out, the primary contemporary uses of "race"
assume significance in terms of class or culture. Of the
two, since World War II, the cultural conception of race has
come to enjoy considerable commitment, though not without
controversy. Generally, the cultural conception includes
identifying race with language group, religion, group
habits, mores or customs.<81>

Given the difficulties associated with the concept of race,
it may be asked why the concept is used in modern
legislation at all. The answer is that race is used in this
context not to promote the idea of racial superiority but to
attack it. Nonetheless, a crime of racial motivation, if
interpreted strictly in accordance with "race" in its
biological meaning_assuming that race has such a
meaning_would include only those large population groups
referred to earlier: generally, the Mongoloid, the Negroid,
and the Caucasoid. To avoid such a restrictive
interpretation, legislation that aims to prosecute
hatemongers has additional criteria in order to protect a
broader range of groups. <82>

In Canadian criminal law, the crimes of hate propaganda (set
out in Code, sections 318-319) are the only crimes that are
designed to protect certain groups from certain hateful
conduct. More specifically, they protect certain
identifiable groups from, generally, the destructive effects
of wilful promotion of hatred.<83> Section 318(4) defines
"identifiable group" as meaning "any section of the public
distinguished by colour, race, religion, or ethnic origin."

Assuming that additional measures should be taken to combat
hate-motivated violence (e.g., by using sentencing
guidelines or a Code amendment to set out that hateful
motivation is an aggravating factor that increases penalty,
or by creating a crime or crimes of hate-motivated
violence), it seems appropriate that such measures at least
protect the same groups that are currently set out in Code,
section 318(4). There are two reasons for using the present
definition of "identifiable group" as a starting point.
First, as a policy matter, Parliament has already decided
that those groups are particularly vulnerable to hate
propaganda attacks. If members of such groups are protected
from venomous speech, it appears even more appropriate that
they be protected when the criminal conduct consists, not of
speech, but of acts of violence against them or their
property. Secondly, providing protection to members of the
same groups promotes a consistency of approach in the
criminal law.

A more difficult issue, however, is whether or not the
present list of identifying factors set out in section
318(4) is too narrow in scope. Should other factors be
included that are not now in the definition of "identifiable
group"?

The United States provides a useful guide as to the variety
of groups that maybe singled out for protection by hate
crimes legislation. A majority of the states have legislated
hate-motivated crimes of some sort, and the majority of these
statutes are  based on, or similar to, model legislation
proposed by the American Anti-Defamation League (hereinafter
referred to as the ADL). This model legislation proposes, in
part, a crime of intimidation if a person commits certain
basic crimes "by reason of the actual or perceived race,
colour, religion, national origin or sexual orientation of
another individual or group of individuals".<84> Thus, it
includes "national origin" and "sexual orientation" as
identifying factors. While most states use the criteria of
"race, religion and ethnicity" as factors in defining the
accused's motivation, some states also add "sexual
orientation" and "gender" as factors. A minority of states
also include other factors such as "mental or physical
disability or handicap", "age", and even "political
affiliation".<85>

Thus, the groups or members of groups that are protected by
American state penal law relating to bias-motivated conduct
do not fall within the narrow biological concept of race. In
fact, the terminology used to describe these types of crimes
is not uniform. For example, legal commentators use phrases
to define this kind of crime that range from "ethnic
intimidation la vs",<86> to "bias crimes",<87> to "hate-
motivated behaviour",<88> to "racially-motivated
violence".<89>

The broad range of groups covered by the bias crimes of
various American states raises an important question: On
what basis should our criminal law protect members of
certain groups? One possible principle is that it is wrong
for an attacker to select victims on the basis of certain
immutable characteristics over which they have no control.
Factors such as colour, race, ethnic origin and sex fall
within the scope of this principle. So also do other factors
such as age, or mental or physical disability.

However, this principle would obviously be too narrow,
because it would not cover a person's religion (since a
person, in theory, can change his or her religion). Another
principle could be that the Code should protect members of
those groups who are at risk of being physically attacked
because of their membership in the group. This, for example,
would protect gays or lesbians, although not necessarily the
aged (in the latter case, there is little evidence of
criminal attacks against the elderly on the basis that the
attackers hate the elderly). The difficulty with using this
as an organizing principle is that, although history and the
present may indicate what groups could be at risk of violence
now, it is difficult to predict what groups would be at risk
of violence in the future. For example, in a population that
is growing older, is it possible that, in the future, hatred
may build up among the young towards the elderly for using
too many resources at the expense of the young?

In this context, Canadian proposals for reform concerning
the definition of "identifiable group" for the crimes of
hate propaganda are useful. Specifically, the Law Reform
Commission of Canada noted the difficulty of adhering to a
general principle in determining which groups should be
protected by those crimes, and recognized that an ad hoc
list of groups would have to be created. The Commission
recommended that the definition be expanded to include the
specifically enumerated criteria of "colour, race, ethnic
origin, religion, national origin, sex, age, or mental or
physical disability" set out in the equality guarantee of
subsection 15(1) of the Charter.<90> Given that the Charter
guarantees members of such groups protection from
discrimination, it is arguable that any criminal law
initiatives to combat hatemotivated violence (against people
or property) should protect members of these same groups.

Arguably, though, such a proposal raises two issues. First,
what conduct would be caught if the definition of
"identifiable group" were expanded to include "sex" as a
protected category? If "sex" were to be included as a
criterion, then misogynists who commit crimes against women
would face an increased penalty for committing crimes
motivated by hatred of the victim's gender. It may be argued
that including gender as a factor in defining hate-motivated
criminal conduct is unnecessary, given that the

Given the fact of hate-motivated violence against
homosexuals, it appears most appropriate to include "sexual
orientation" as a criterion for protecting members of
certain groups in any definition of hate-motivated violence.

4.2 Summary

This chapter focussed on this issue: Members of which groups
should be protected from hate-motivated violence? The
chapter first examined the difficulties associated with the
concept of race, and surveyed the use of other criteria in
addition to race that are used to protect certain groups
from harmful conduct. It examined whether or not there is an
overarching principle that can be applied to determine which
groups to select for this purpose. Is it that persons should
not be selected as victims of crime because of someone's
hatred of immutable characteristics? Or should the issue
focus on those groups most at risk of violence in our
society? The chapter ar~d that it is difficult to apply a
single principle, and that an ad hoc list of criteria may be
the best approach available.

At the very least, it is argued that protection from hate
crimes should apply to members of an "identifiable group" as
now defined for the purpose of the hate propaganda
legislation -- that is, "any section of the public
distinguished by colour, race, religion or ethnic origin".
However, this is arguably too narrow a list of criteria. A
better list would be one that includes those criteria
specifically set out in the equality guarantee of subsection
15(1) of the Charter -- that is, those of "race, national or
ethnic origin, colour, religion, sex, age or mental or
physical disability". In addition, it is strongly argued
that "sexual orientation" should be included in this list of
criteria, given the fact that homosexuals are at risk of
physical violence for no other reason than that they are
homosexual.

Given that members of certain groups should be protected
from hate-motivated violence, is the present law the most
satisfactory way of ensuring this aim? One way of answering
this question is to compare the present approach taken by
Canadian criminal law with that taken by other
jurisdictions. The next chapter examines how
certain foreign jurisdictions tackle the problem of hate-
motivated violence.

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