Disproportionate Harm
Hate Crime in Canada

Introduction

The first step in addressing hate crimes is to know the magnitude of the problem (Marowitz, 1991: 3).

The problem of hate crime of one form or another is a truly global phenomenon, and Canada is no exception. The international news media report incidents of hate crime on an almost daily basis, whether it is anti-semitic propaganda or the desecration of synagogues in France, extreme violence directed against immigrant minorities in Germany (Aronowitz, 1994; Ward, 1991) or Scandinavia (Bjorgo, 1994; Loow, 1995), racial assaults in Great Britain (see Bowling, 1994) or more systematic crimes of hate against whole communities in Bosnia Herzegovina (Hamm, 1994). In Canada, the domestic incidents of hate crime that have been reported in the news media are, to date, less extreme, yet the problem may well be just as insidious.

There has been little empirical research on the issue of hate crimes in Canada. One reason for this is the absence, so far, of comprehensive criminal justice statistics which include information on the offender's motivation. As will be seen later in this report, police services across Canada have only recently begun accumulating hate crime statistics in a systematic fashion. Although a number of recent scholarly articles have addressed the topic (e.g., Gilmour, 1994; Ross, 1994), Canada lacks a comprehensive examination of hate crime statistics.

The problem of hate crimes is of relevance to two recent legislative initiatives in Canada, both of which will be explored in greater detail later in this report. One is Bill C 455, the Bias Incidents Statistics Act, which received first reading in 1993. This statute calls for the collection of national statistics relating to crimes motivated by hate. The second relevant Bill is Bill C-41, the Sentencing Reform Bill. <An Act to Amend the Criminal Code (sentencing) and Other Acts in consequence thereof: Statutes of Canada 1995, Chapter 22. Assented to 13th July 1995.>

One of the critical provisions of that Act creates a statutory aggravating factor, which requires harsher penalties for crimes motivated by hate.

1.1 Purpose of Report

The present document differs from previous reports on this issue in that the emphasis is on empirical data, and criminological aspects of the problem. In fact, the purpose of this report is two-fold. First, to describe and evaluate the data currently available relating to hate or bias crimes in Canada. This part of the report consists of an analysis of data provided to the Department of Justice Canada in response to a special request for current statistical information. At this stage such an exercise must be preliminary in nature, as few groups collect hate crime statistics on a systematic basis, and not all police forces across the country have invested to the same degree in the collection of such statistics. Although the focus is on statistics relating to hate crime, a number of recommendations are made regarding the criminal justice response to the phenomenon of hate crime in Canada. The second purpose consists of outlining and evaluating the options facing the criminal justice system in terms of collecting better information about this kind of criminal activity. Throughout the document there is an attempt to place issues relating to the definition and incidence in an international context. Comparisons are made with findings from two other jurisdictions: the United Kingdom and the United States.

This report continues a recent Department of Justice Canada initiative in the area of hate or bias crime. Earlier documents which address this issue include a legal analysis of criminal law aspects of the problem (see Gilmour, 1994) and a survey of hate motivated activity (see Nelson and Kiefl, 1995). The emphasis is upon hate crime statistics derived from police services across the country, although data from B'nai Brith, and two organizations in Toronto and Montreal that collect information on hate crimes directed at gays and lesbians are also included. For more information on the more general topic of hate crime activity, the reader is directed towards a report entitled, "Survey of Hate- Motivated Activity" (Nelson and Kiefl, 1995).

As will be seen, the focus of this research is upon crimes motivated by hatred or bias, rather than the offences defined in sections 318-320 of the Criminal Code which address hate propaganda. Far less is known about crimes motivated by hate than the hate propaganda offences which have received a great deal of attention as a result of several causes celebres in recent years. <For example, the cases involving Malcom Ross and Ernest Zundel -- see Ross, 1994 for further information.>

The document begins with a discussion of the nature of hate- motivated crimes and the difficulties surrounding the collection of statistics in this area. Varying definitions of hate-motivated crimes are then presented. We then review the incidence of hate crimes in two other jurisdic ions (the United States and the United Kingdom) before presenting a summary of hate crime statistics in Canada. These data are drawn from private agencies (e.g., B'nai Brith Canada) as well as the criminal justice system. The report concludes with a discussion of ways to improve the collection of police statistics relating to hate crimes. Various options are evaluated, including passage of a Hate Crimes Statistics Act comparable to that which was passed by the United States Congress in 1990.

1.2 The Issue of Disproportionate Harm

There are several reasons why the criminal justice system singles out hate crimes for special attention. Garafolo and Martin (1991) identify three principal justifications. First, hate crimes have effects upon the victim beyond those commonly associated with non-bias crimes. They note that:

the characteristics that elicit the victimizations (e.g., race, ethnicity, religion) are often important elements in the victim's own sense of identity, thus presenting the bias crime victim with additional factors that can create feelings of anger and vulnerability" (p. 18).

For example, a gay person who is attacked or harassed because of his or her sexual orientation will suffer the physical consequences of the assault as well as the affront to their character.

The second reason noted by these authors for paying special attention to hate crimes is the impact that they have on whole communities. Hate crimes increase the level of fear, and can only heighten tension between different racial and ethnic groups. This observation has been made by many writers. Sanderson (1991: 43) for example, notes that, " a hate crime resembles no other crime. The effects of hate crime reach beyond the immediate victim or institution and can damage society and fragment communities". This constitutes an additional element of harm, which accordingly should be recognized by the criminal law.

That said, there are at least two reasons to believe that hate crime statistics underestimate the full extent of harm inflicted upon the community. The first of these is essentially a statistical argument. It is clear that the hate crime statistics available to date underestimate the true incidence of this form of criminal activity in Canada. The extent of this underestimation must remain unknown until such time as better sources of data are available. It would be a mistake to measure the importance of hate crimes simply by the number of incidents reported to the police. But there is another way in which these statistics underestimate the importance of the problem. The statistics fail to convey a sense of the true harm inflicted upon the individuals and groups that are the target of hate crimes.

To some degree this can be said of any statistical information. The Uniform Crime Reporting (UCR) statistics published annually by the Canadian Centre for Justice Statistics provide a useful source of the kinds of incidents reported to the police (e.g., Canadian Centre for Justice Statistics, 1994). However, they fail to convey a sense of the full impact upon the victim. This is particularly true for hate-motivated crimes. A recent study conducted by the League for Human Rights for the Commission on Systemic racism in the Ontario Criminal Justice System is revealing in this respect. This research consisted of a series of focus groups with members of :several ethnic minorities (see League for Human Rights, 1993). The general conclusion of that research was that racially motivated crime is an issue of serious concern to all the groups studied (South Asian, Asian, Muslim, Jewish, Black, and Aboriginal communities in Toronto). The harm is not restricted to just the victims involved. Hate crimes convey a message of fear to all members of the community to which the specific individual belongs. The seriousness of a hate crime cannot be fully understood without taking this additional element into consideration. The harm lies in the atmosphere of fear and apprehension to which all hate crimes contribute.

It is also worth noting that research in other jurisdictions shows a clear association between the presence of hate motivation, and the extent of injuries inflicted in crimes against the person. For example, Levin and McDevitt (1993) review data from the Boston Police Department showing that assaults motivated by hate resulted in greater physical injury than other forms of assault. According to this same source, victims of hate-motivated violence experienced two to three times more negative psychological and behavioural sequelae than victims of violence not motivated by racial or ethnic hatred.

Canadians who are not members of one of the communities usually targeted may have difficulty comprehending the seriousness of hate crimes. We can all appreciate the potential impact of break and enter, or an assault, but it may be harder for some people to fully appreciate the impact of a racially-motivated attack or an attack on a gay person, either on the specific individual or the community targeted. This may explain why police officers interviewed by the League for Human Rights acknowledged that racially motivated crime was not an issue for Torontonians in general (League for Human Rights, 1993: 12-13). And, since racial minorities are under-represented among criminal justice professionals, the effect may be that the seriousness of hate crimes is not fully appreciated by the criminal justice system. Respondents interviewed for the League for Human Rights study also stressed the need to continue efforts to raise awareness within the police about the issues surrounding victimization in hate crimes. The problem of insufficient awareness among criminal justice professionals (including the police) has also been noted in other countries (see Levin and McDevitt, 1993).

The statutory penalty enhancement for hate-motivated crimes which is contained in the sentencing reform Bill exists to reflect the fact that the harm is not restricted to a specific individual. Carrying this logic to the level of a police report, it is obvious that a police report cannot capture the full impact of a hate crime upon the community to which the victim belongs. This alone distinguishes hate crimes from offences committed for some other motivation.

1.3 Victims' Rights and Responses

The issue of identifying hate-motivated crimes also has important consequences for victims' rights and responses to the criminal justice system. If a crime is motivated by racism, and this is not taken into account by the criminal justice system, then the system has effectively failed to reflect the true extent of the harm to the victim. To the extent that victims are aware of this, they may well become disenchanted with the criminal justice response, and this may reduce still further the probability that such incidents will be reported to the police. Moreover, since hate crimes are directed at large groups (e.g., a particular racial or ethnic minority, or all members of a religion), the harm is far greater than if a only a single victim was affected (see Ferry, 1991: 85). The role of the victim also has consequences for the collection of hate crime statistics. As Cook (1991) notes, "a good reporting and analysis system sends a positive message to the victims of bias incidents: government cares". There are also consequences for victims if the police fail to accurately record hate crimes. As Levin and McDevitt (1993: 169) note:

The failure of an officer to properly identify an incident as hate motivated sometimes results in escalated violence and additional harm to the victim.

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