Hate-Motivated Violence

Present Law
Footnotes

59. Ibid., p. 377.

60. Ibid., p. 379

61. R. v. Lelas (1990), 41 O.A.C. 73.

62. Ibid., p. 77.

63. Ibid., p. 77.

64. R. v. Simms (1990), 66 C.C.C. (3d) 599 (Alta. C.A.).

65. Ibid., pp. 507-508. Harradence J.A., who would have imposed a lesser sentence than the other judges, stated nonetheless that the accused were motivated to attend at the home of the victim by the philosophy espoused by the white supremacist groups with which the accused were associated and that that philosophy not only condoned but extolled violence against those perceived to be opposed to that philosophy. Such conduct, in his view, had to be sternly denounced by the courts. Ibid., pp. 506-507.

For a brief discussion of present protections offered by the Criminal Code in combatting racially motivated violence, see T. Cohen, Race Relations and the Law ([Canadian Jewish Congress], 1988), pp. 122-124.

66. See pp. 45-46 of this paper. [Transcription Note: Section 5.2]

67. R. v. Gardiner, [1982] 2 S.C.R. 368, 68 C.C.C. (2d) 577.

68. Ibid., per Dickson J. (as he then was), p. 414 (S.C.R.).

69 See, e.g., R. v. Wilcox (1988), 53 C.C.C. (3d) (N.W.T.S.Ct.) (hearsay evidence of damage estimates allowed); R. v. Boyd (1983), 8 C.C.C.(3d) 153 (B.C.C.A) (at a dangerous offender proceeding, there was no need to prove that the accused's statements to psychiatrists were voluntarily made).

70. See the decision of Anderson J.A., dissenting in part, in Boyd, ibid., pp. 158-159.

71. Canada, House of Commons, Report of the Special Committee on Visible Minorities in Canadian Society, Equality Now! (Ottawa: 1985) (Chair: B. Daudlin).

72. Ibid, pp. 73-75. It was also pointed out there that the Ontario Attorney General had issued guidelines to crown attorneys to assist them in prosecuting criminal c fences with a racial component. The Comrnittee suggested that all attorneys general should issue similar guidelines to their crown attorneys so that racially motivated crimes were effectively dealt with, which could include community service, compensation and restitution to the visible minority community or individual.

73. Canada, Response of the Government of Canada to Equality Now! (Ottawa: Ministry of Supply and Services Canada, 1985), p. 17. The concept of a consecutive sentence being imposed in the case of a racially motivated crime was also rejected by the Canadian Bar Association's Special Committee on Racial and Religious Hatred, which supported instead referring the issue of guidelines for sentencing to the Sentencing Commission. See Special Committee on Racial and Religious Hatred, Hatred and the Law (Winnipeg: Canadian Bar Association, 1985), p. 14-15.

74. Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Minister of Supply and Services Canada, 1987).

75. Ibid., p. 320.

76. The Commission, however, did point out that the list was not exhaustive and that other circumstances may be invoked in justifying a departure from the guidelines (although it added that its primary list was based on extensive research into the jurisprudence). Ibid, pp. 320-321. Consistent with the fact that the list was not exhaustive, the Commission added that "the personal circumstances or characteristics of an offender should be considered as an aggravating factor only when they relate directly to the commission of the offence". Ibid., p. 322. If an accused commiKed a crime by reason of hateful motivation, it appears that that would amount to a personal characteristic of an offender that should be considered as an aggravating factor. The guidelines and the list of aggravating factors were not intended to be enacted as iegislation. Instead, the proposal was that they be tabled in Parliament by the Minister of Justice, where, unless objected to by means of a negative resolution of the House of Commons, they would come into force after a short passage of time. Ibid., pp. 305-309.

77. These proposals are outlined in a memorandum to the author from Mr. Ian Kagedan, Director of Government Relations, B'nai Brith Canada, dated July 7, 1993.

78. Canada, Department of Justice, National Symposium on Women, Law and the Administration of Justice (1991 : Vancouver, B.C.), vol. 2, Recommendations om the Symposium (Ottawa: Minister of Supply and Services Canada, 1992), p. 150.

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