Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-005-00
Last-Modified: 1997/01/22
Source: Department of Justice Canada

5.0 FOREIGN JURISDICTIONS

In assessing the appropriate response of Canadian criminal
law to bias-motivated violence, it is useful to find out to
what extent other jurisdictions have taken measures to
combat such violence. Although not necessarily determinative
to the issue, their responses to this problem may indicate
directions for reform that Canada might follow.

5.1 The United States

Of all foreign jurisdictions, the United States has most
aggressively pursued a policy of legislating specific crimes
to combat hate-motivated conduct, responding to such
violence at both the federal and state level.

5.1.1 Federal Law

5.1.1.1 The Hate Crime Statistics Act of 1990

In 1985, a variety of concerned groups, from the Anti-
Defamation League of B'Nai Brith, to the National Gay and
Lesbian Task Force, to police organizations, argued the need
to gather national statistics on hate crimes. Implementation
of the legislation was delayed because of opposition by
right-wing conservatives to the inclusion of statistics on
violence against gays and lesbians.95 The Hate Crime
Statistics Act was finally passed in 1990.

Briefly, the federal Hate Crime Statistics Act<96> provides
that the Attorney General of the United States must acquire
data, for the calendar year 1990 and each of the succeeding
four calendar years, about crimes that manifest evidence of
prejudice based on race, religion, sexual orientation or
ethnicity_including, where appropriate, the crimes of
murder, non-negligent manslaughter, forcible rape,
aggravated assault, simple assault, intimidation, arson, and
destruction, damage or vandalism of property. The Act also
requires the Attorney General to establish guidelines for
the collection of such data, including the necessary
evidence and criteria that must be present for a finding of
manifest prejudice, and procedures for carrying out the
purposes of the Act.

No cause of action is created by the Act, such as an action
based on discrimination owing to sexual orientation. Data
acquired under the Act must be used only for research or
statistical purposes and may not contain any information
that may reveal the identity of an individual victim of a
crime. Finally, the Attorney General is required to publish
an annual summary of the data so acquired.

As one legal commentator has pointed out, the FBI's draft
guidelines for collecting hate crimes data remind officers
to be careful and conservative when determining bias.
Because of the difficulty of ascertaining the offender's
subjective motivation, before an incident can be reported as
a hate crime the guidelines require that sufficient
objective facts be present to meet a probable cause-type
standard that bias motivated the criminal act.<97>

5.1.1.2 Religious Vandalism Act of 1988

In 1988, the federal government passed legislation that
specifically made religious vandalism a crime.<98> The
statute generally provides that a person commits a crime who
intentionally damages or destroys any religious real
property (such as a church, synagogue, mosque, or cemetery)
where the loss is more than $10,000, or who obstructs by
force any person in the enjoyment of that person's free
exercise of religious beliefs when the defendant travels in
interstate or foreign commerce.

5.1.1.3 Federal Civil Rights Legislation

The federal government has also used civil rights
legislation to prosecute instances of hate-motivated
violence. It appears that four statutory provisions are used
for criminal prosecutions: 18 U.S.C.  241, 242 and 245, and
42 U.S.C.  3631.

Section 241 of 18 U.S.C.99 provides for criminal penalties,
in part, where two or more persons conspire to injure,
oppress, threaten or intimidate any inhabitant of the United
States in the free exercise of any right or privilege
secured to him by the Constitution or laws of the United
States. Section 242 of 18 U.S.C.<99> provides for criminal
penalties for, in part, whoever, under colour of any law,
wilfully subjects any inhabitant of the United States to the
deprivation of any rights protected by the Constitution or
laws of the United States or to different punishments, by
reason of his colour or race. Section 245 of 18 U.S.C.
provides for criminal penalties, where, in part, a person,
whether or not acting under colour of law, by force or
threat wilfully injures, intimidates or interferes with any
person because of his race, colour, religion, or national
origin, and the person is engaging in a variety of
activities such as attending a public school, applying for
employment, using the services of a restaurant, and
travelling in any facility of interstate commerce. Section
3631 of 42 U.S.C.'02 provides for criminal penalties where,
in part, a person, whether or not acting under colour of
law, by force or threat of force wilfully injures,
intimidates or interferes with any person because of his
race, colour, religion, sex, handicap, familial status or
national origin and because he is or has been occupying any
dwelling.<103>

These statutory provisions do afford protection for victims
of hate-motivated violence, but they are subject to
limitations. For example, 18 U.S.C.  241 requires that two
or more persons conspire in the harmful act, which would
exempt single actors from its ambit. And 18 U.S.C.A.  242
requires that the offender be acting under colour of law, et
cetera. Nonetheless, these statutory provisions are regarded
as useful tools in the effort to prosecute hate crimes.<104>

5.1.1.4 Other Government Initiatives

In April 1992, Representative Charles Schumer of the House
of Representatives introduced a bill to direct the United
States Sentencing Commission to make sentencing guidelines
for federal criminal cases involving hate crimes.<105>
Generally, the bill would have required the Commission to
provide guidelines that would enhance sentences by not less
than three offence levels for offences that were hate
crimes. A hate crime was defined as "a crime in which the
defendant's conduct was motivated by hatred, bias, or
prejudice, based on the actual or perceived race, colour,
religion, national origin, ethnicity, gender, or sexual
orientation of another individual or group of
individuals."<106> A legislative hearing on the bill was
held before the Subcommittee on Crime and Criminal Justice
of the House of Representatives' Committee on the Judiciary
in July 1992. Although it was approved by the House of
Representatives at the end of the last Congress, the Senate
adjourned before it could take up the measure.<107>
President Clinton, as a candidate for the Presidency,
endorsed the bill during the recent presidential election
campaign.<108> Representative Schumer intends to reintroduce
the bill in the new Congress.<109>


5.1.2 State Law

The American states have a variety of criminal laws that can
be used to combat bias-motivated conduct. Some laws are
behaviour-specific and limited in scope (e.g., some states
make it a crime to burn a cross, to wear masks at a public
gathering, or to steal religious artifacts).<110> Others,
with a much broader scope, are essentially of two kinds:
those that would impose a higher sentence than would be
normally imposed when the basic crime is committed because
of bias motivation; and those that create a general crime of
violating a person's civil rights under the state or federal
constitution, which may also be used to prosecute hate
crimes.

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