Ethnocultural Groups
&
The Justice System in Canada
A Review of the Issues

Hate Crimes, Hate Material
and
Hate Groups

12.2.1 Offensive Behaviours Motivated by Hatred

Referred to by various titles such as "hate-motivated crime," "bias-motivated crime," and/or "racist crime," acts of violence against property and/or persons which are somehow motivated by hatred are a key concern for ethnocultural and minority groups in Canada.<318> These behaviour ;, ranging from vandalism and property damage to assault and even murder, are criminal offences in Canada. However, a "hate crime" (other th-an hate-propaganda provision) does not exist within Canada's criminal law. Hate- motivated behaviours, as Gilmour argues, are different from offences against property and persons which are not motivated by an underlying hatred against some identifiable group of people, and the difference between "crime" and "hate-crime" on the victim is important.<319>

An assault, an act of vandalism, or another act motivated by hatred is qualitatively different from a similar act which is not hate-motivated. The victim of an assault, for example, where the person is not targeted because he or she is a member of a minority group may view his or her misfortune as the result of having been in the wrong place at the wrong time. Even if there is resentment about the unsafe nature of public places, the victimization is a product of circumstance. On the other hand, it may be argued that the victim who is singled out for attack because of hatred for who she or he is or, because of membership in an identifiable group, suffers a qualitatively different injury. In such cases, there is a deeply felt sense of personal injury and continuing sense of apprehension and threat, which does not seem to arise from acts perceived to have occurred due to random circumstance.<320>

Hate-motivated acts may also have a societal effect, which sets them apart from similar acts not directed at particular groups because of a dislike for them. Hate-motivated acts produce situations where people feel threatened because they are members of a group. People think of themselves and others, and their behaviour toward others is based on expectations and characteristics of social categories. Thus relationships between groups are affected, possibly resulting in social tension along ethnic or racial lines.<321>

Based on these kinds of considerations, Gilmour suggests that Canada needs to take some form of legislative action to distinguish hate-motivated offences from typical Criminal Code offences.<322> In doing so, Gilmour explores the possibilities for doing so through the criminal law. He does not make specific recommendations on how this should be undertaken; rather, he carefully delineates the options available for doing so. Two of these options include the creation of a specific provision in the criminal law to make hate-motivated behaviour a crime in itself, and the provision of sentencing principles in the criminal law to identify hate motivation as an aggravating factor to be accounted for at sentencing.<323? As Gilmour implies, it may not be important which option is adopted, as long as one of them is implemented. Given Canada's multicultural heritage and the explicit policy of multiculturalism, Gilmour suggests that it is important to symbolically recognize the difference between typical crimes and hate-motivated crimes. He also argues that the law could have other beneficial effects through, for example, the educative function of law.<324> As well, the symbolic effect of a hate-motivated provision in the Criminal Code may have an important impact on peoples' sense of personal safety and security.

It would seem, then, that it is important to address the gap in Canadian law which recognizes some forms of hate crimes (i.e., hate propaganda) but not others (i.e., personal and property violence against members of racial and visible minority groups). How this is done is a policy issue, but the desire for such an undertaking seems clear. However, as Gilmour suggests, it may well be that a criminal law amendment will largely have only a symbolic effect. Other avenues for addressing expressions of racist hatred will likely be needed to effectively reduce the amount of hate- motivated offences in this country. These other options range from education programs to other legal options. Education programs could, for example, be introduced in schools to discourage recruitment of youth to organizations that espouse violence against minority groups. Other legal options could include the use of civil remedies in cases of hate-motivated behaviour in order that the offended group could recoup monetary penalties from the offender and use the monies to promote respect, tolerance and acceptance, to provide restitution to the victim, and/or to improve safety and security for the community.

Any criminal law approach would need to consider an important technical legal problem. The criminal law requires that the offender have criminal intent or mens rea in order to be found "guilty" of an offence. In the case of hate- motivated behaviours, the intent would not be easy to "prove." In order to effect a criminal law response, therefore, this problem must be addressed.

12.2.2 Hate Groups

The third aspect of the interrelated problem of hate crimes, the existence and activities of hate groups, is perhaps the most important aspect of the three. That is, given that these groups are involved in activities which relate to the commission of hate crimes, addressing and controlling hate groups would seem an important aspect to be addressed in the overall problem. The continuing presence of hate groups and their seemingly increasing visibility in Canadian society is a threat to peaceful relations between and across groups in the Canadian mosaic, and their activities are a constant threat to the security and personal safety of racial and visible minorities in Canada. This, however, proves to be the most difficult aspect to address through legal avenues. Specifically, given the rights and freedoms guaranteed in the Charter, it may not be possible to ban hate groups in Canada. 325 This, however, should not be considered an entirely pessimistic view with regard to addressing hate groups in Canada.

While it may not be possible to outlaw these groups, it is still possible to control their activities through the law. The most obvious example is the use of hate propaganda provisions to control the production and dissemination of hatepropaganda by these groups. However, as noted above, the hate-propaganda provisions of the Code have rarely been used and there is some question about their effectiveness in limiting the activities of groups. As well, given that there is a need to draft legal provisions for dealing with other hate-motivated offences, these new provisions could be used to limit and/or control the activities of hate groups. It may be possible, for example, to do this by implicating group leaders and/or members in the hate-motivated offences of other group members through special conspiracy provisions relating to hate-motivated offences.

What is needed in the attempt to undertake legal responses to the activities of any hate group, however, is a much clearer understanding of the organization, structure, and activities of each group. Since such groups cannot, and perhaps should not be outlawed, avenues for curtailing their harmful activities must be investigated and acted upon where appropriate. For example, with respect to hatepropaganda activities, the justice system must work with a number of government departments and Crown corporations including Canada Post, Customs and Excise, and Canadian Heritage to devise the best possible response to the traffic of hate propaganda, including dissemination within and the importation of materials into Canada, as well as the exportation of materials outside of Canada.<326> In learning more about the organization, structures and activities of these groups, other forces may be involved in the attempt to curb their impact on Canadian society.

Sorne information about hate groups is known. The study conducted for Solicitor General Canada,<327> for example, identifies what the author believes to be the major hate groups operating in Canada, and indicates aspects of their leadership and their organizational goals. This report suggests that two aspects of groups are important to their continuation and success: a capable, charismatic leader, and links with other like-minded organizations. Concerning goals, Theriault asserts that the white-supremacist movement is not dominated by a single organization but is "more of a network of hate groups."<328> What these groups ultimately do is "use racism in order to gain support for their political program....[They] are political opportunists that will use all available means in order to gain support and recruits."<329> Their political agenda is summed up as "the ultimate conclusion of their actions remains the establishment of a society totally dominated by the white race to fulfil its historical biological destiny."<330>

Other knowledge about these groups would also seem to be important. For example, there is anecdotal evidence that these groups are actively recruiting youths at schools across the country and disseminating hate messages through hate music,33' but the more specific methodologies they employ and the success of these efforts are not known, nor is their overall recruitment strategy. It would seem that this kind of knowledge is essential to counteract the long- term existence and operation of these groups in Canada.

Research to acquire empirical knowledge about the organization, structure, and activities of these groups would assist greatly in the development of an action plan for combatting their activities and their organizational strength. With such knowledge, the justice system in cooperation with the kinds of agencies mentioned above, would be in a much stronger position to address the existence and activities of hate groups in Canada.

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