The Nizkor Project: Remembering the Holocaust (Shoah)

Disproportionate Harm
Hate Crime in Canada

(1 of 4)

There are several reasons why we need better information on the incidence and nature of hate crimes in Canada than is currently available. First, because the magnitude of theproblem has yet to be fully appreciated by many people, and one reason for this is that hate crimes are under- reported. In this respect, Canada differs from the United Kingdom, where as Fitzgerald (1995:4) notes:

we no longer need to measure the problem in order to prove that it exists. That is, despite the variation between results generated in different places by different methods, the cumulative evidence makes it impossible to deny that there is a problem.

Second, we need to understand which groups are being targeted and to allocate criminal justice resources in an efficient and effective manner. Third, better information would make it possible to evaluate the efficacy of the justice system (and community-based) response.

4.1 Hate Crime Statistics: Data Collection Issues

One conclusion, then, from the research initiative that gave rise to this report is that we need better information about the incidence of hate crimes in Canada. There are several ways that our knowledge of hate crime can be improved. One is simply to encourage more police forces and special interest groups to collect data relating to hate crime incidents. Over time, this will surely result in better data. However, inconsistencies will still remain, and in all likelihood certain forms of hate crime will remain highly under-reported. The alternative solution is to promote a truly national data-collection initiative. At this point a summary of the arguments for and against such a strategy are made.

4.2 Advantages of Collecting National Data

4.2.1 Consistency

Defining a hate or bias crime is far from easy. As noted in earlier sections of this document, a large number of definitions have been proposed and are in use in Canada and elsewhere, and it is clear that different organizations follow different approaches to data collection. There is even considerable variability between police forces (see earlier sections of this report). The result is inevitably a lack of consistency. If there were a national strategy focused upon the collection of such data, we would have a much more accurate idea of the true nature and scope of hate crime activity in the country. This knowledge would then inform policy development in terms of issues such as penalty enhancements for hate crimes, creation of new offences, revisions to the statutory maximum penalties and so forth.

4.2.2 Recognition of Harm

The principle of proportionality is central to the sentencing process in Canada. This means that the severity of sentences should be directly proportional to the seriousness of the crimes for which they are imposed. The principle of proportionality will be enshrined in a statute, as a result of the Sentencing Reform Bill (C-41) <An Act to Amend the Criminal Code (sentencing) and Other Acts in consequence thereof. Statutes of Canada 11 1995, Chapter 22. Assented to 13th July 1995.>. This Bill contains a provision (s. 718.1) which states that, "A sentence must be proportionate to the gravity of the off nce and the degree of responsibility of the offender." Gravity can be considered the harm threatened or inflicted. Hate or bias crimes carry an added dimension of crime seriousness. This dimension includes l elements such as the threat to other members of group victimized, as well as the affront to the general community (Roberts, 1994a). So long as most hate crimes (with a few exceptions) continue to be hidden from criminal justice awareness, the element of harm will not be fully reflected in sentencing patterns at the trial court level.

4.2.3 Integrating Different Components of the Criminal Justice System

When the Sentencing Reform Bill (C-41) becomes law (early in 1996), there will be an even greater need to collect accurate data about the incidence of hate crimes. One provision in the Bill (s. 718.2 (a) (i)) provides a statutory aggravating circumstance where there is "evidence that the offence was motivated by bias, prejudice or hate based on the race, nationality, colour, religion, sex, age, mental or physical disability or sexual orientation of the victim". This provision reflects current case law and is consistent with enhanced penalties for hate crimes that are found in other jurisdictions such as the United States (see Roberts, 1994a). If the aggravated penalty provision contained in Bill C-41 is to be more than purely symbolic, it will be necessary to have reliable information about hate crimes. This is what I refer to as integrating the information collecting function and the sentencing process. In fact, the successful prosecution of hate-motivated crimes will depend upon systematic investigation of evidence relating to the motivation of the offender. If this is not done, hate-motivated crimes will seldom result in the enhanced penalty prescribed by the Sentencing Bill.

There is also a strong argument to be made that better defining hate crimes will have a positive pedagogic effect on the criminal justice system and society in general.At the present time, many crimes that are motivated by hate or bias are not recognized as such by the system or in terms of social reaction. A few years ago in Toronto, a number of youths participated in the killing of a man that they believed to be homosexual. This was a clear case of a hate crime, and yet no mention of this was made in media reports at the time. According to the new sentencing Act, a harsher sentence should be imposed for a crime (in this case the conviction was manslaughter) which was motivated by hate. If acknowledgement of this were to be entered into the reasons for sentence <Another provision of the proposed sentencing Bill requires judges to state their reasons for sentence in all cases. At the present, judges are not obliged to provide reasons in all cases.> and if these reasons were then publicized, the result may well be increased public and professional awareness of hate- motivated crime. One of the most compelling arguments in favour of national statistics is that minority groups themselves -- the people most directly affected by hate crimes -- are strongly in favour of better information regarding the incidence and prevalence of this kind of crime. Finally, many of the policy recommendations by groups such as the B'nai Brith of Canada cannot be implemented without having systematic data on hate crimes across the country.

4.2.4 Ensuring That All Target Groups are Covered

In the course of describing hate crime statistics from other jurisdictions, we have seen that hate crimes are directed at a number of different targets. By leaving the task of data collection to specific groups, we run the risk of failing to take into account hate crimes directed at groups without sufficient resources to collect such data, or groups who are not recognized by criminal justice authorities as legitimate targets of hate-motivated crime.

4.2.5 Utility to Local Communities

There is also a utility to communities in having reliable hate crime statistics. It is important for a community to know the extent of the problem, and to be able to place the problem in some kind of national context. As well, communities need to know where the problem is greatest and who is being targeted. They can only know this if reliable statistics exist.

4.2.6 Following Best Practices Elsewhere

It is also important to note that the national collection of hate crime statistics is consistent with the practice followed in other jurisdictions that have a great deal in common with Canada, namely the United Kingdom and the United States.

4.3 Disadvantages of National Collection

4.3.1 Resources

One argument against the national, standardized collection of this kind of information would simply be that it would require additional effort by police forces across Canada, at a time when police resources are stretched to the limit. Since hate crimes tend to be concentrated in the major urban centres, would it not make more sense to invest in data collection in cities, and leave rural communities out of the exercise? While it is true that hate crime in Canada is almost exclusively an urban phenomenon, this argument assumes that the collection of information on hate motivation would be onerous for police forces. This is not necessarily true. The collection of hate crime statistics does not necessitate the creation of a specialized Hate Crime Unit, although such a step obviously makes sense in Canada's largest police forces. For small, rural communities, a requirement that hate motivation be explored would require little additional effort, since the number of incidents would be so small. Without a more thorough cost- benefit analysis it is hard to make definitive statements, but the additional investment of police resources might not be excessive and would have important practical and symbolic significance.

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