Hate-Motivated Violence

Foreign Jurisdictions

In assessing the appropriate response of Canadian criminal law to bias-motivated violence, it is useful to find out to what extent other jurisdictions have taken measures to combat such violence. Although not necessarily determinative to the issue, their responses to this problem may indicate directions for reform that Canada might follow.

5.1 The United States

Of all foreign jurisdictions, the United States has most aggressively pursued a policy of legislating specific crimes to combat hate-motivated conduct, responding to such violence at both the federal and state level.

5.1.1 Federal Law

5.1.1.1 The Hate Crime Statistics Act of 1990

In 1985, a variety of concerned groups, from the Anti- Defamation League of B'Nai Brith, to the National Gay and Lesbian Task Force, to police organizations, argued the need to gather national statistics on hate crimes. Implementation of the legislation was delayed because of opposition by right-wing conservatives to the inclusion of statistics on violence against gays and lesbians.95 The Hate Crime Statistics Act was finally passed in 1990.

Briefly, the federal Hate Crime Statistics Act<96> provides that the Attorney General of the United States must acquire data, for the calendar year 1990 and each of the succeeding four calendar years, about crimes that manifest evidence of prejudice based on race, religion, sexual orientation or ethnicity_including, where appropriate, the crimes of murder, non-negligent manslaughter, forcible rape, aggravated assault, simple assault, intimidation, arson, and destruction, damage or vandalism of property. The Act also requires the Attorney General to establish guidelines for the collection of such data, including the necessary evidence and criteria that must be present for a finding of manifest prejudice, and procedures for carrying out the purposes of the Act.

No cause of action is created by the Act, such as an action based on discrimination owing to sexual orientation. Data acquired under the Act must be used only for research or statistical purposes and may not contain any information that may reveal the identity of an individual victim of a crime. Finally, the Attorney General is required to publish an annual summary of the data so acquired.

As one legal commentator has pointed out, the FBI's draft guidelines for collecting hate crimes data remind officers to be careful and conservative when determining bias. Because of the difficulty of ascertaining the offender's subjective motivation, before an incident can be reported as a hate crime the guidelines require that sufficient objective facts be present to meet a probable cause-type standard that bias motivated the criminal act.<97>

5.1.1.2 Religious Vandalism Act of 1988

In 1988, the federal government passed legislation that specifically made religious vandalism a crime.<98> The statute generally provides that a person commits a crime who intentionally damages or destroys any religious real property (such as a church, synagogue, mosque, or cemetery) where the loss is more than $10,000, or who obstructs by force any person in the enjoyment of that person's free exercise of religious beliefs when the defendant travels in interstate or foreign commerce.

5.1.1.3 Federal Civil Rights Legislation

The federal government has also used civil rights legislation to prosecute instances of hate-motivated violence. It appears that four statutory provisions are used for criminal prosecutions: 18 U.S.C. 241, 242 and 245, and 42 U.S.C. 3631.

Section 241 of 18 U.S.C.99 provides for criminal penalties, in part, where two or more persons conspire to injure, oppress, threaten or intimidate any inhabitant of the United States in the free exercise of any right or privilege secured to him by the Constitution or laws of the United States. Section 242 of 18 U.S.C.<99> provides for criminal penalties for, in part, whoever, under colour of any law, wilfully subjects any inhabitant of the United States to the deprivation of any rights protected by the Constitution or laws of the United States or to different punishments, by reason of his colour or race. Section 245 of 18 U.S.C. provides for criminal penalties, where, in part, a person, whether or not acting under colour of law, by force or threat wilfully injures, intimidates or interferes with any person because of his race, colour, religion, or national origin, and the person is engaging in a variety of activities such as attending a public school, applying for employment, using the services of a restaurant, and travelling in any facility of interstate commerce. Section 3631 of 42 U.S.C.'02 provides for criminal penalties where, in part, a person, whether or not acting under colour of law, by force or threat of force wilfully injures, intimidates or interferes with any person because of his race, colour, religion, sex, handicap, familial status or national origin and because he is or has been occupying any dwelling.<103>

These statutory provisions do afford protection for victims of hate-motivated violence, but they are subject to limitations. For example, 18 U.S.C. 241 requires that two or more persons conspire in the harmful act, which would exempt single actors from its ambit. And 18 U.S.C.A. 242 requires that the offender be acting under colour of law, et cetera. Nonetheless, these statutory provisions are regarded as useful tools in the effort to prosecute hate crimes.<104>

5.1.1.4 Other Government Initiatives

In April 1992, Representative Charles Schumer of the House of Representatives introduced a bill to direct the United States Sentencing Commission to make sentencing guidelines for federal criminal cases involving hate crimes.<105> Generally, the bill would have required the Commission to provide guidelines that would enhance sentences by not less than three offence levels for offences that were hate crimes. A hate crime was defined as "a crime in which the defendant's conduct was motivated by hatred, bias, or prejudice, based on the actual or perceived race, colour, religion, national origin, ethnicity, gender, or sexual orientation of another individual or group of individuals."<106> A legislative hearing on the bill was held before the Subcommittee on Crime and Criminal Justice of the House of Representatives' Committee on the Judiciary in July 1992. Although it was approved by the House of Representatives at the end of the last Congress, the Senate adjourned before it could take up the measure.<107> President Clinton, as a candidate for the Presidency, endorsed the bill during the recent presidential election campaign.<108> Representative Schumer intends to reintroduce the bill in the new Congress.<109>

5.1.2 State Law

The American states have a variety of criminal laws that can be used to combat bias-motivated conduct. Some laws are behaviour-specific and limited in scope (e.g., some states make it a crime to burn a cross, to wear masks at a public gathering, or to steal religious artifacts).<110> Others, with a much broader scope, are essentially of two kinds: those that would impose a higher sentence than would be normally imposed when the basic crime is committed because of bias motivation; and those that create a general crime of violating a person's civil rights under the state or federal constitution, which may also be used to prosecute hate crimes.

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