The purpose of this study is to examine how Canada's Criminal Code should address what is often referred to as racially motivated violence. Thus, this paper is restricted to considering various responses by the criminal law to the problem: it does not address civil or other remedies that lie outside the domain of the criminal law, such as creating a civil damages action relating to hate-motivated violence, or using various human rights commissions to combat this problem more effectively.
The study relied for its analysis on an examination of legal periodicals on the topic of racially motivated violence in several jurisdic ions. As well, additional information on the topic was provided by reports from government organizations (e.g., in England, reports on the topic from the Home Office), reform-minded organizations (e.g., the Australian Law Reform Commission) and private organizations (e.g., in Canada, the League for Human Rights of B'nai Brith, and in the United States, the American Anti- Defamation League). Also, a selective, albeit not systematic, examination was made of newspapers and magazines, both Canadian and foreign, to obtain information on specific examples of racially motivated violence. The criminal law of certain foreign jurisdictions was also examined to see how they respond to the problem of racially motivated violence. These were the United States, England, Australia, New Zealand, France, Germany and Sweden. These countries, it was felt, would provide a useful overview of possible directions for reform in this area.
Given the purpose of the study -- to explore how the criminal law should combat the problem of racially motivated violence -- number of options present themselves.
The first option is to have the criminal law do nothing to respond to the problem of hate-motivated violence. This would mean that evidence of hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera, should in no way be used to increase the penalty for committing the basic crime, and so would be a change from the present criminal law. The one advantage of this option is that, for those who believe strongly in freedom of expression, it protects a person's most repugnant beliefs. Its disadvantage is that it rejects the use of the criminal law to denounce hate-motivated conduct and would weaken the protection that the criminal law now affords to minority groups.
The second option is to immediately create a federal hate crime statistics act to obtain more information on the incidence of hate-motivated violence in Canada. The advantage of this option is that it would provide a national picture of hate crime activity in Canada: it would enable Canadians to obtain needed information about these crimes and who commits them. Also, it might help spur the development of collecting such data at the local police level. The disadvantage of this option is that it might be, at this point in time, an ineffective use of federal resources; that is, until more collection of such data is carried out at the municipal and provincial levels.
The third option is that the present law be maintained: that the only response of the criminal law to hate-motivated conduct should continue to be use of evidence of hatemotivated conduct as an aggravating factor to increase the penalty for the basic crime beyond that which is normally imposed through the application of judge-made sentencing principles. This option's advantage is that it views hateful motivation as part of a series of aggravating factors used to enhance the penalty for eommitting a basic crime that is capable of broad application; also, it offers the familiarity that comes with present practice. Its disadvantages are that the role of aggravating factor has had to be determined by appeal courts following cases where a lesser sentence had been imposed at trial, and that it is not the most effective way to publicly denounce such conduct.
The fourth option is-to set out specifically, in sentencing guidelines or in the Criminal Code, that the fact that a person has committed a crime by reason of hatred of another's actual or perceived race, colour, religion, ethnic origin, et cetera, should increase the penalty for committing the basic crime. This could be done as part of a scheme for setting out aggravating factors generally, or by having a specific Code provision that enhances the penalty for a crime when it is hate-motivated. The advantage of this option is that it would better denounce such conduct by setting it down publicly, especially if the Code were used for this purpose. Its disadvantage is that this approach arguably does not fully denounce the distinct harm caused by such conduct.
The fifth option would build into the actual definitions of certain crimes, such as assault and mischief, provisions providing for an automatic penalty enhancement where the crime is hate-motivated. Its advantage would be to strongly denounce certain criminal conduct. However, this approach depends on selection of only a few basic crimes for the purpose; otherwise, the definitions of several crimes would have to be so amended, which would lead to lengthy repetition. Moreover, like the preceding option, it assumes that hatemotivated conduct is merely a more serious instance of the basic crime, rather than something harmful in its own right.
The sixth option is to create a specific crime of institutional or religious vandalism, and another crime of bias intimidation that would have as part of its definition the commission of certain general crimes, such as mischief, assault, or threatening harm, by reason of a person's actual or perceived race, colour, religion, ethnic origin, et cetera, and which would be more severely punished than the general crime. Its advantage is that it would recognize the distinct harm of hate-motivated crimes and denounce them with the maximum possible impact of the criminal law. Its disadvantage would be, on the one hand, to duplicate existing law and, on the other hand, to adopt an ad hoc approach to the criminalization of hate-motivated conduct by only singling out some criminal conduct for penalty enhancement.
The seventh option argues for the creation of a general crime of hate-motivated violence. Its advantage is that it would create a principled approach to the issue, so that any criminal conduct that is hate-motivated could be prosecuted pursuant to this general crime. Its disadvantage is its vagueness, that it might have to be further defined by the use of a schedule to identify specific offences that would fall under it, that the broader it is the more it could stretch the bounds of credulity, and that it might result in the creation of a parallel criminal code relating to hate- motivated violence that would destroy the cohesion and unity of the present Criminal Code.
The eighth option calls for an amendment to the definition of the crime of first-degree murder so that hate-motivated murder would fall within that definition. Its advantage is that it would denounce the worst kind of hate-motivated violence_hate-motivated murder. There does not appear to be any disadvantage to this proposal.
The ninth option is that, should a crime or crimes of bias- motivated violence be created, incitement to commit such violence would be caught by the criminal law. No special crime need be created, given that the general rules governing incitement, et cetera, to commit a crime would apply once a specific crime (or crimes) of hate-motivated conduct is created. There does not appear to be a disadvantage to this option.
The tenth option is that, if a crime (or crimes) of hate- motivated behaviour is created, a principled approach to determining the penalty for the crime should preferably be adopted, such as having the maximum penalty for the crime equal one and one-half times that for committing the basic crime. A disadvantage of this option is that this range may be viewed as being too high, and that a better approach may be to raise the penalty closer to the maximum penalty range existing in the present law.
The eleventh option would set out the mens rea component for any hate-motivated crime. It argues that the preferable mens rea component should be that of purposely or recklessly harming a victim or vandalizing property by reason of hatred of the victim's actual or perceived race, colour, religion, ethnic origin, et cetera. The advantage of this proposal is its focus on the hateful motivation of the accused. As an alternative, it is argued that the _mens rea_ component could include the concept of negligence, but the disadvantage of such an approach is that it could criminalize acts of unconscious racism. A crime of hate- motivated violence so defined would arguably have a minimal denunciatory and educative impact.
The twelfth option argues that the definition of an "identifiable group" should protect the members of a group identifiable on the basis of race, national or ethnic origin, colour, religion, sex, age, mental or physical disability, or sexual orientation. The advantage of this option is that it would extend the protection of the criminal law as regards hate-motivated violence to the same groups protected from dicriminatory treatment set out in subsection 15(1) of the Canadian Charter of Rights and Freedoms. Its disadvantage might be that it would extend such protection to groups not at risk of hateful violence because of their belonging to such groups_for example, the aged. Whatever list of criteria is chosen, it is strongly argued that "sexual orientation" be added to the list, given the fact that homosexuals have been victims of violence because of their sexual orientation.
The thirteenth option generally argues that the definition of any sentencing provision or of a specific crime or crimes of hate-motivated behaviour should include those who are attacked because of their support for members of such identifiable groups. The advantage of this proposal is that it would ensure that the criminal law denounce all hate- motivated behaviour, whether or not the victims belong to the identifiable group so hated. There does not appear to be any disadvantage to this option.
The fourteenth option would have consideration given, ancillary to the creation of a crime or crimes of hate- motivated violence, to creating a damages provision that would allow the criminal court, on completion of a trial, to award punitive damages to the victim of such violence. The advantage of this proposal is that it would add to the public condemnation of such activity, as well as provide some limited recompense to the victim. The disadvantage is that it might be viewed as not being in pith and substance criminal law.
The fifteenth option, in light of the Rodney King case in the United States, suggests that consideration be given to the creation of a crime of violating a person's constitutional rights. The advantage of this option would be to emphasize the importance of the rights and freedoms set out in the Charter. Its disadvantages, however, are numerous. They include the difficulty of defining the crime, and the fact that the limits on double jeopardy protection in the United States do not apply in Canada.
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