Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-00
Last-Modified: 1997/01/23
Source: Department of Justice Canada

7.0 OPTIONS FOR REFORM

Over the past decade, hate-motivated violence has come to be
recognized by several foreign jurisdictions as a serious
problem that the criminal justice system must try to
address. From the United States, where hate crimes statutes
have been created in many states, to England, where
government initiatives to combat such violence have focussed
on better policing and inter-agency cooperation, and
Australia, where reform-minded organizations such as the
Australian Law Reform Commission have recommended specific
hate crimes legislation, there is seen a need by government
to combat this problem.

How should Canadian criminal law respond to bias-motivated
violence? Is the present law satisfactory? Or are other,
better options available? This issue will be addressed in
the following list of options. A full range of options is
provided; some are exclusive of others. For example, Option
1, which sets out that the criminal law should not in any
way attempt to combat the problem of hate-motivated
violence, is obviously irreconcilable with an approach that
favours the use of the criminal law to help in combatting
the problem. However, other options may be viewed as
complementary to each other. For example, the creation of a
specific crime or crimes of hate-motivated violence could be
used to complement a general policy set out either in the
form of sentencing guidelines or a Code amendment that would
increase the penalty for any crime committed by reason of
hatred of a person's actual or perceived race, colour,
religion, ethnic origin, et cetera.

7.1 Refusing to Allow the Criminal Law to Respond to Hate-
Motivated Violence

     Option 1. If a person commits a crime by reason of
     hatred of a person's actual or perceived race, colour,
     religion, ethnic origin, et cetera, the criminal law
     should not increase the person's penalty for committing
     the crime either by using the hateful motivation as an
     aggravating factor at sentence or by creating a
     separate crime or crimes of hate-motivated conduct.

In order to encompass the full range of options available in
any analysis of the

problem of hate-motivated-violence, this option must be
considered.

What can be said in favour of this option? At best, it
ensures that the criminal law remains neutral when faced
with an accused who commits a crime by reason of hatred of a
person's actual or perceived race, colour, religion, ethnic
origin, et cetera. Such a person would fare no better or no
worse than a person who commits the same crime without
having such a hateful motive. This result arguably affords
maximum protection to freedom of expression, because it
ensures that a person will not be punished for his or her
hateful beliefs.

However, such an option is obviously untenable. The
protection afforded to freedom of expression is clearly
overstated, because what is prohibited is engaging in
criminal conduct by reason of hatred of a person's actual or
perceived race, colour, religion, ethnic origin, et cetera,
not activity that is exclusively that of exercising the
right of free speech. It would negate the existing case law,
which asserts, correctly, that acts of hate-motivated
violence constitute a grave assault on the person attacked,
the group to which the person belongs, and society itself.
If put into force, it would significantly weaken the
protection that the criminal law affords to members of
minority or other identifiable groups.

7.2 Creating a Federal Hate Crime Statistics Act

Option 2. The federal government should take immediate
action to obtain better information on the incidence of hate-
motivated crimes in Canada by passing a federal hate crime
statistics act.
This option would, by the use of federal law, create a
mechanism to record data about the incidence of hate-
motivated crime in Canada. One of the difficulties in
assessing the scope of hate-motivated violence in Canada is
the limited scope of data on the subject. Compared with
other jurisdictions_such as the United States, where
procedures are in place to obtain national data on such
incidents_Canada's datagathering mechanisms on this subject
are inadequate.<196>

The advantage of creating this kind of data-gathering system
would be to obtain more information about the incidence of
hate-motivated crimes and thereby to help in formulating
both legislative and nonlegislative responses to this
problem. For example, such data could be useful in obtaining
information about how often such attacks take place, and
where most attacks take place, as well as in obtaining
general profiles about victims and attackers.<197> In some
Canadian cities, such as Ottawa and Toronto, bias crimes
investigative units have been set up recently. Thus, some
mechanisms are now being put in place at the local police
level to help determine if criminal activity is hate-
motivated. Creating a federal hate crime statistics act
could serve to spur other police forces into collecting
similar data.

The disadvantage of this proposal, arguably, is that to
create such a law now, when its effect would be initially
limited, might be an ineffective use of federal resources.
The effect would be thus limited because incidents of hate-
motivatedcrimes are not at present systematically recorded
by all police forces. Therefore, it would be premature at
this stage for the federal government to arrange to have
such data collected at the national level until more
collection of such data is done at the  provincial and
municipal levels.

 7.3 Combatting Hate-motivated Violence By Increasing the
Penalty for the Basic Crime

     Option 3. The approach of the present criminal law in
     combatting hate-motivated violence, which uses evidence
     of hateful motivation as an aggravating factor to
     increase the penalty for the basic crime by means of
     judge-made sentencing principles, should be continued.
     No changes to the present criminal law should be made
     to combat this problem.

This option would continue the policy of the present law,
which does offer protection to victims of hate-motivated
crime by way of judge-made sentencing principles developed
through case law. Evidence of the accused's hatred of a
person's actual or perceived race, colour, religion, ethnic
origin, et cetera, is used as an aggravating factor to inc -
ease the penalty for the basic crime beyond the usual
sentence given for that crime when not so motivated.

The benefit of this approach is that it views hateful
motivation as one of a number of aggravating factors used to
enhance the penalty for committing a crime, and one that is
capable of broad application. It also has the benefit of
familiarity, since it is, after all, present practice.

The costs, however, of continuing the present practice would
appear to outweigh the benefits. Even though case law has
held that evidence of hateful motivation should be used as
an aggravating factor to increase sentence, to what exlent
is this practice followed by judges across the country?
After all, the reported cases are instances where the appeal
courts have imposed a more severe sentence than that imposed
at trial. Moreover, is this the most effective way to
denounce such behaviour? To discover the use of such hateful
motivation as an aggravating factor [unreadable] sentence, a
person must either search case law or textbooks on
sentencing practice. It therefore should not be surprising
that those who would seek to have the criminal law act more
effectively in combatting hate-motivated violence are
critical of the approach taken by the present law.<198>

Option 4. Either sentencing guidelines or the Criminal Code
should specify that the fact that a person has committed a
crime by reason of hatred of a person's actual or perceived
race, colour, religion, ethnic origin, et cetera, should
increase the penalty for the crime.

The benefits of this approach would be that increasing the
penalty for a crime where the crime was hate-motivated would
be set down, either in guideline or in statutory form. Being
more visible than the current law, it therefore would have a
more denunciatory and educative impact than the present law.
As well, by being clearly set out, it could have the effect
of ensuring that in all cases of hate-motivated violence,
the penalty for the crime would be increased, thereby
reducing the possibility that a trial judge might fail to
increase the sentence accordingly. As noted earlier, the use
of motivation as an aggravating factor in sentencing
guidelines has been proposed with regard to federal crimes
in the United States.<199>

The use of guidelines has one disadvantage: it may not have
the greatest impact in denouncing bias-motivated conduct.
Obviously, the less forceful the effect of the guidelines
(e.g., merely advisory as opposed to presumptive), the more
they approximate the present law, which relies on case law
to develop principles of sentencing policy. Moreover, the
use of hateful motivation as an aggravating factor in
sentencing guidelines makes sense only insofar as the
government is resolved to create such guidelines. The longer
the delay in setting up such guidelines and the mechanism
for monitoring them on an ongoing basis, the more realistic
it becomes to look for other methods that could be used as
an alternative to sentencing guidelines. The clearest
alternative to the use of guidelines in this regard is to
amend the Code itself.

One possible reform would be to set out in the Code a
statutory list of aggravating factors that would increase
the sentence for committing a crime. For example, the Law
Reform Commission of Canada, in its final report on
_Recodifying Criminal Law_,<200> recommended the creation of
a list of aggravating factors that
would be placed in the Criminal Code, although provisions
relating to the effect of such factors on sentence would be
governed by a code of criminal procedure. (These aggravating
factors did not, however, include hateful motivation.<201>
This approach has the advantage of any codification of the
criminal law: it sets out plainly what citizens should or
should not do, and therefore has a strong denunciatory
effect. In this regard, some American states have created a
statutory list of aggravating factors going to increase
sentence.<202>

One possible advantage of treating evidence of hateful
motivation as just one aggravating factor among many is that
this approach would be less criticized by those who would
object to specific statutory reforms addressing hate-
motivated violence_ for example, the creation of a specific
penalty provision that increases the penalty for any crime
committed by hateful motivation, on the ground that such an
approach fractures the general scope of the criminal law by
singling out certain groups for special attention and
protection.

A more direct reform would be to amend the Code so that it
specifically addresses increasing the sentence for a crime
where a person has acted by reason of hatred of a person's
actual or perceived race, colour, religion, ethnic origin,
et cetera. For example, as noted earlier, Canadian critics
of the present law have suggested that the Code be amended
to provide specifically that evidence of racist motivation
should result in an increased penalty.<203> The advantage of
amending the Code to this effect is to denounce such hateful
behaviour as being particularly heinous.

The disadvantage of this approach for those favouring an
increased use of the criminal law is that treating evidence
of hateful motivation as, in effect, an aggravating factor
that raises the penalty for committing a basic crime, still
does not adequately recognize the unique kind of harm caused
by hate-motivated violence.

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