Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-02
Last-Modified: 1997/01/23
Source: Department of Justice Canada

In this context, the specific issue that arises is whether
or not these international obligations compel lawmakers to
the conclusion that criminal legislation aimed specifically
at hate-motivated violence should be created. On one hand,
one could argue that there is no need to alter existing
criminal law to tackle this problem: that the present law
adequately satisfies our international obligations in this
area. On the other hand, one could argue that these
international treaties require Canada to create new criminal
law to satisfy its international obligations. Clearly, the
creation of specific criminal legislation to combat hate-
motivated violence more forthrightly satisfies Canada's
obligations under international law. In this regard, as
previously noted, reform-minded organizations in Australia,
a country that has much in common with Canada,<213> have
strongly argued for the creation of a crime of racist
violence, in large part because they believe that such a
reform would better comply with Australia's international
obligations under CERD and ICCPR.<214>

Another reason that can be given for the creation of new
criminal law to combat hate-motivated violence is that it
would serve an important symbolic or educational purpose. As
stated in the Law Reform Commission of Canada report, Our
Criminal Law, the primary purpose of the criminal law is to
reaffirm the fundamental values of society by publicly
condemning conduct that violates those values.<215> In this
case, the argument would be that the fundamental values of
modern Canadian society include those of human dignity and
equality, which are undermined by hatemotivated violence.
Therefore, even though there already are general criminal
laws that can be used to prosecute such conduct, the
creation of a hate crimes statute would better affirm these
values by most clearly denouncing this conduct.

7.4.2 Constitutional Concerns

Would the creation of a crime or crimes of hate-motivated
violence be unconstitutional under Canadian law? To answer
this question, it is respectfully suggested that the
American experience is most useful as a guide. Why? For this
reason: American law has more zealously guarded freedom of
expression than has Canadian law. Because of the differences
in our respective constitutions and cultures, the United
States Supreme Court and the Canadian Supreme Court have
reached opposite views about the constitutionality of laws
prohibiting hateful expression. In R.A. V. v. City of St.
Paul,<216> the United States Supreme Court ruled that a city
ordinance prohibiting racist vilification was
unconstitutional by violating the First Amendment of the
Constitution. In contrast, in R. v. Keegstra,<217> the
Supreme Court of Canada held that the crime of wilfully
promoting hatred against an "identifiable group" was
constitutional.

And yet, even though the United States Supreme Court has
more forcefully defended freedom of expression in this
context than has the Supreme Court of Canada, it has still
upheld, in Wisconsin v. Mitchell,<218> the constitutionality
of hate crimes legislation that increases the penalty for
certain crimes committed by reason of hatred of a person's
actual or perceived race, colour, religion, ethnic origin,
et cetera. Given this American precedent, and given the
Keegstra precedent, it is inconceivable that the creation of
similar hate crimes legislation in Canada would be found to
be unconstitutional_especially since the current practice in
Canadian criminal law at the sentencing stage is to use
evidence of hateful motivation as an aggravating factor to
increase the penalty for committing a crime.

Nonetheless, some critics of the hate crimes legislation in
the United States claim that these laws do not afford
sufficient protection to minorities. To make the prosecution
of hate crimes more effective, they have proposed
controversial changes to the hate crimes laws that could
render those laws, if so changed, subject to attack as being
unconstitutional. These proposed changes involve defining
hate crimes in such a way as to create a presumption of
racist intent, but to allow an accused to raise an
affirmative defence of no racial motivation, thereby
shifting the burden of proof on the issue of motive from the
state to the accused. As well, minorities would be exempt
from prosecution under this criminal law, so that it would
only be used to prosecute racist individuals of the majority
white population who assault members of a minority group.

A hate crimes statute designed in a manner that requires the
prosecution to prove hateful motivation, and that affords
protection to both minority and majority groups in society,
raises no Charter problems. However, if the definition of
the crime presumed racist intent and was restricted to allow
for prosecution only in cases where the perpetrators of
violence were members of the white majority, possible
Charter violations clearly would arise. In such a case, the
presumption of innocence is arguably violated. Also, there
is a violation of the equality guarantee, because the law
would deny a significant proportion of the Canadian
population protection from such harmful attacks.

These controversial proposals for reform, however, do not
affect the constitutional validity of hate crimes
legislation modelled upon the lines suggested by the Anti-
Defamation League. Thus, the fundamental question remains:
Should the criminal law of Canada be amended to create such
crimes as a matter of policy?

7.4.3 Tests of Criminality

In this regard, the philosophy espoused by the Law Reform
Commission of Canada serves as a guide for determining when
crimes should be created. In its report, Our Criminal Law,
the Commission emphasized restraint in the use of the
criminal law.<220> It proposed a stringent four-pronged test
to determine if an act should be subject to criminal
penalties:
     
     * Does the act seriously harm other people?
     
     * Does it in some other way so seriously contravene our
     fundamental values as to be harmful to society?
     
     * Are we confident that the enforcement measures
     necessary for using criminal law against the act will
     not themselves seriously contravene our fundamental
     values?
     
     * Given that we can answer "yes" to the above three
     questions, are we satisfied that criminal law can make
     a significant contribution in dealing with the
     problem?<221>

The first issue to be determined is: Does the act seriously
harm other people? Obviously, an act of vandalism or assault
is an act deserving of criminal sanction, because either the
person is deprived unjustifiably of his or her property, or
the person is physically harmed. However, these acts are
already caught by the criminal law. Consistent with the
principle of restraint in the use of the criminal law, one
could strongly argue that there is no need to create new law
that would duplicate the existing criminal law, where the
only difference would be the additional component of hateful
motivation. By this argument, the proper approach for the
criminal law would be to use evidence of such motivation as
an aggravating factor to increase the penalty for committing
an existing crime, just like all other aggravating factors.
This would also promote a principled approach in the use of
the criminal law by having just one crime (e.g., assault)
focus on the harm caused, rather than by creating a variety
of crimes all aimed, essentially, at the same wrongful
conduct.

This argument assumes that the central harm aimed at by
these general criminal laws is the same as that aimed at by
a criminal law prohibiting hate-motivated violence. But it
is recognized that hate-motivated violence causes distinct
harms. First, a person's being selected as the victim of
violence by reason of his or her actual or perceived race,
religion, et cetera, causes particular harm that is arguably
more severe than the usual harm suffered by a victim of
crime. Secondly, harm is caused to the group of which the
person is a member. The impact on other members of the group
is the creation of fear about their place in society. Like
the crimes of hate propaganda, crimes of hate-motivated
violence offend the fundamental values of both human dignity
and equality. While these arguments support creating a
sentencing enhancement provision for hate-motivated behavior
in relation to general crimes, the greater these distinct
harms, the greater the need to denounce such conduct most
forcefully by the creation of a specific crime or crimes of
hate-motivated violence.

In this context too, the provisions dealing with sexual
assault in the Criminal Code may be useful. The present Code
not only prohibits general crimes of assault; it also has
created crimes of sexual assault.<222> It may be argued that
the creation of the sexual assault provisions was required
to replace the old, outdated laws governing rape, which is
substantially different from adding new crimes to penalize
criminal conduct already caught by traditional crimes. But
clearly, one of the purposes of the crimes of sexual assault
is to denounce such conduct more severely than regular
assault. Hence, the punishment set out for such criminal
conduct is more severe than for other assaults. For example,
the crime of aggravated assault in Code, section 268 sets
out a maximum penalty of 14 years' imprisonment; in
contrast, the crime of aggravated sexual assault in Code,
section 273 sets out a maximum penalty of life imprisonment.
Arguably, it would be equally valid to create a separate
crime or crimes of hate-motivated violence where a policy
decision is made that such conduct is deserving of more
severe punishment.

The second test of criminality is: Does the act in some way
contravene other fundamental values so as to be harmful to
society? This is essentially an alternative to the first
test. Clearly, attacks on members of minority groups have
the effect~of creating fear among other members of the
group, thereby sowing the seeds of disharmony within
society. In this way, society itself is harmed by hate-
motivated violence.

The third test is: Will resorting to criminalization offend
our fundamental values? In this regard, it has already been
strongly argued that the creation of such crimes would not
offend the _Canadian Charter of Rights and Freedoms_.

The fourth test is: Would resorting to the criminal law make
a significant contribution in dealing with the problem? In
this regard, certain criticisms of the use of hate crimes
statutes have been made by American commentators. As noted
earlier it is claimed_given what is known about the
psychological make-up of such offenders_that such statutes
will not deter such offenders; that they will not decrease
prejudice but more probably increase it; that they could be
used against the very minorities they are designed to
protect; that such crimes are complex and difficult to
define; and that the difficulty of proving a hateful motive
will make prosecutors wary about applying such crimes, as
opposed to general crimes, to prosecute hate-motivated
offenders.<223>

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