The Nizkor Project: Remembering the Holocaust (Shoah)

Disproportionate Harm
Hate Crime in Canada

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4.6 Canadian Hate Crime Statistics Act (Proposed)

Bill C-455 <23 An Act to provide for the collection of statistics respecting incidents investigated by police forces where those incidents manifest evidence of bias against certain identifiable groups.> received first reading in June 8, 1993. As with most private member's Bills, it was not reviewed by the House of Commons Committee on Justice and Legal Affairs, and no plans exist to review it in the near future. The purpose and scope of the Bias Incidents Statistics Act is summarized well in an explatory note:

The purpose of this Bill is to have police forces across the country collect statistics that would indicate the number of incidents investigated by them that were wholly or partly motivated by bias against those sections or individual members of the public distinguished by colour, race, religion, sexual orientation or ethnic origin and that would identify the sections or persons who were the target of bias in each such incident. These statistics would be submitted to the Solicitor General of Canada and receive public exposure by being tabled in the House of Commons.

Several comments are worth making about this proposed Bill (see Appendix C for the complete text). First, it adopts a broad definition which does not require an exclusive motivation. This is consistent with the United States Hate Crime Statistics Act, and with some, but not all of the police forces in Canada (see earlier sections of this report). Second, the act calls for the federal Solicitor General to establish criteria for the classification of hate crimes. This too, is consistent with the United States statute. Third, the Bill identifies a list of target groups, although it does not include all the categories mentioned in the Sentencing Reform Bill: mental or physical disability and age are absent from the Bias Incidents Statistics Act. Why these were omitted is unclear. Finally, it is worth noting that this act is designed to draw attention to the problem of hate crimes, by virtue of the fact that these statistics would be tabled in the House of Commons, and not simply submitted to the Ministry of the Solicitor General in the form of a research report.

Is it necessary to adopt a Hate Crimes Statistics Act in Canada? In my view, the answer to this question depends upon the degree of consensus surrounding the previous issues relating to the collection of information about hate crimes. If police forces show little sign of consensus, or little interest in co-ordinating efforts in terms of data collection and offence definition, then passage of such a statute may be the only way in which a systematic picture of the hate crime problem can emerge. On the other hand, it is clear from the police forces that participated in the survey that gave rise to this report, that significant interest does exist within the policing community at the present time. Passage of a hate crime statistics act will not solve all the problems associated with the definition and collection of such data. It would be unwise to think otherwise. Nor will such an act do much to facilitate the prosecution of such crimes. However, what the act will do is promote consistency in the collection of hate crime statistics, and this is an important first step.

If national hate crime statistics are compiled by local forces and sent to a central data repository such as Statistics Canada, will this obviate the need for individual community groups such as B'nai Brith to compile their own statistics? The answer is probably not. Police statistics will always be susceptible to reporting biases, and the only way of knowing about the true incidence of hate- motivated crime is to have an independent source of information. In the absence of a periodic victimization survey, we will remain dependent upon community groups to provide information on hate crimes that are not reported to the police. As well, non-criminal justice organizations such as B'nai Brith have been instrumental in sensitizing the community to the magnitude of the hate crime problem (see Czajkoski, 1992).

4.7 Classification of Hate Crimes

The way in which hate crimes are currently classified by the criminal justice system diminishes our awareness of the impact of these crimes. To take but a single example, consider one of the most common forms of hate or bias crimes: defacing religious symbols. There have been many instances over the past few years of the desecration of Jewish cemeteries both here and in Europe. <24 The incidents that occurred in southern France in 1990 are the most notorious examples, but they have been repeated in many countries since.> These incidents have been classified as mischief. According to Section 430. (1) of the Criminal Code, "Every one commits mischief who wilfully (a) destroys or damages property". Classifying hate crime incidents in this way has at least two important negative consequences. First, it diminishes the importance of hate crimes by lumping them together with other, far less malign incidents of vandalism. Spray-painting swastikas on headstones is treated, in terms of the Criminal Code charge against an individual, in the same way as a teenager who spray-paints his initials on a school wall, although the social harm (and the culpability of the offender) is considerably greater. Even the word "mischief" has a popular connotation of a very minor offence. The term "vandalism" is not much better: it conjures up images of graffiti on subway trains, and implies an act that is relatively trivial, and rather mindless (see Wolfgang, Figlio, Tracy and Singer, 1985). Hate crimes are clearly more serious and, far from being mindless, are purposively directed at specific targets, and reflect a definite ideology of hatred (see Hamm, 1994).

The second problem is that offenders of very different degrees of culpability are classified in the same way. This homogenization may be addressed at the stage of sentencing (for those cases that eventually result in a conviction). That is, judges may impose sentences which reflect the additional harm of hate-motivated crimes. However, this is poor substitute for a more accurate classification at the level of the charge. As well, there is the question of the criminal record. Drawing upon prior convictions as contained in a CPIC file, a judge sentencing an offender with prior convictions of mischief would have no way of knowing about the nature of the previous offending. This is because the CPIC system does not include such information. The severity of the sentence would therefore fail to reflect the seriousness of the offence for which it was imposed, thereby undermining the critical principle of proportionality in the sentencing process. <25 This critical principle of proportionality in sentencing permeates the sentencing literature (see, for example, Canadian Sentencing Commission, 1987). As well, the principle lies at the heart of the statement of sentencing purpose and principle contained in the Sentencing Reform Bill (C-41) which is currently being reviewed by Parliament (see Roberts and von Hirsch, 1995).

A central issue that has to be resolved then, in this area is whether it is appropriate to create specific hate crimes. This issue has already been addressed, and there are complex arguments on both sides (see Gilmour, 1994: 77-86 for a thorough discussion). However the question is eventually resolved, it does seem clear that the status quo, in which offenders can commit repeated acts of criminal hatred without this necessarily being recognized by the criminal justice system, is inadequate.

In short, the use of a catch-all offence like mischief leads to a loss of precision in the application of the criminal law. Of course, the same argument applies to racially- motivated assaults. Under the present system, we have no reliable way of knowing whether a recidivist offender's previous convictions for assault were raciallymotivated or not.

Accordingly, in my view, there is a powerful argument to be made for the creation of some specific hate crime offences. For example, there could be a specific offence such as the desecration of religious symbols, property or institutions. This is a recommendation that has been advanced by numerous groups in Canada and elsewhere, including B'nai Brith Canada (League of Human Rights, 1993: 44). Creating a limited number of hate crimes would not result in duplication of offences for the reason that the desecration of a tomb is not the same criminal act as the spray-painting of a subway train. Attempting to respond to the former act by classifying it in the same Criminal Code section as the latter is inevitably going to lead to a trivializing of what is a serious crime. Nor can this additional element of harm be adequately recognized at the time of sentencing, for the reasons outlined above.

Finally, the experience in other jurisdictions has shown that a vigorous response to hate crimes has positive effects both in terms of reducing the incidence of such offences, and also promoting more cohesive communities, in which the various minorities that have traditionally been the target of hate crimes feel their needs have been addressed. The police response is a critical component in the effort to address the problem of hate crimes, but it is still only one component. There are other steps that can be taken. One of these consists of promoting public awareness of the problem, and public confidence in the system's response. A good example of a proactive approach to the problem is the billboards that have been placed in the Toronto Transit system. <These signs draw passengers attention to the problem of such crimes, and provide specific contacts for victims.>

4.8 Police Training Initiative

Passing laws and setting up systems to collect data simply are not enough. The states must train local law enforsement officers in how to detect hate crimes, how to respond to those crimes and how to report them accurately and completely (Coldren, 1991: 131).

Police training in the area of hate crime investigation is critical. While a uniform definition of what constitutes a hate crime is obviously going to be useful, if officers are not provided with the skills and training to correctly identify and classify reports of hate crimes, the national statistical database will be of little utility. As one officer responding to the Department of Justice Canada data request noted:

The integrity of the [hate crime] data system will be dependent on the foundation of a consistent definition as well as consistent application of the definition by police services across the country.

It is clear that the police response to hate crimes could benefit from additional training. While members of several Canadian police forces have travelled to the United States to acquire experience in responding to hate crimes, there has been no national training initiative. The experience in Toronto and Ottawa could be of considerable use to other Canadian police forces. If there were a national hate crime workshop for police officers <A workshop was held in 1994 on the police response to hate crimes, but the focus was not upon the issues raised in this report, such as the need to harmonize hate crime definitions.>, the experiences in Ottawa and Toronto could be shared across the country. This would promote a more uniform response in terms of procedures, training and investigation. This training should also include how to deal with the victims of hate crimes in a sensitive and appropriate manner. While a number of national police training initiatives exist in other areas such as domestic violence (e.g., Roberts and O'Sullivan, 1993), there is currently no training for police officers in the area of hate crimes. And since, detecting hate motivation is a problem that will confront all police officers, not just members of a specialized hate crime unit, consideration should be given to making hate crime training a part of the basic training for recruits.

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