Over the past decade, hate-motivated violence has come to be recognized by several foreign jurisdictions as a serious problem that the criminal justice system must try to address. From the United States, where hate crimes statutes have been created in many states, to England, where government initiatives to combat such violence have focussed on better policing and inter-agency cooperation, and Australia, where reform-minded organizations such as the Australian Law Reform Commission have recommended specific hate crimes legislation, there is seen a need by government to combat this problem.
How should Canadian criminal law respond to bias-motivated
violence? Is the present law satisfactory? Or are other,
better options available? This issue will be addressed in
the following list of options. A full range of options is
provided; some are exclusive of others. For example, Option
1, which sets out that the criminal law should not in any
way attempt to combat the problem of hate-motivated
violence, is obviously irreconcilable with an approach that
favours the use of the criminal law to help in combatting
the problem. However, other options may be viewed as
complementary to each other. For example, the creation of a
specific crime or crimes of hate-motivated violence could be
used to complement a general policy set out either in the
form of sentencing guidelines or a Code amendment that would
increase the penalty for any crime committed by reason of
hatred of a person's actual or perceived race, colour,
religion, ethnic origin, et cetera.
7.1 Refusing to Allow the Criminal Law to Respond to Hate-Motivated Violence
Option 1. If a person commits a crime by reason of hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera, the criminal law should not increase the person's penalty for committing the crime either by using the hateful motivation as an aggravating factor at sentence or by creating a separate crime or crimes of hate-motivated conduct.
In order to encompass the full range of options available in any analysis of the problem of hate-motivated-violence, this option must be considered.
What can be said in favour of this option? At best, it ensures that the criminal law remains neutral when faced with an accused who commits a crime by reason of hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera. Such a person would fare no better or no worse than a person who commits the same crime without having such a hateful motive. This result arguably affords maximum protection to freedom of expression, because it ensures that a person will not be punished for his or her hateful beliefs.
However, such an option is obviously untenable. The
protection afforded to freedom of expression is clearly
overstated, because what is prohibited is engaging in
criminal conduct by reason of hatred of a person's actual or
perceived race, colour, religion, ethnic origin, et cetera,
not activity that is exclusively that of exercising the
right of free speech. It would negate the existing case law,
which asserts, correctly, that acts of hate-motivated
violence constitute a grave assault on the person attacked,
the group to which the person belongs, and society itself.
If put into force, it would significantly weaken the
protection that the criminal law affords to members of
minority or other identifiable groups.
7.2 Creating a Federal Hate Crime Statistics Act
Option 2. The federal government should take immediate action to obtain better information on the incidence of hate- motivated crimes in Canada by passing a federal hate crime statistics act.
This option would, by the use of federal law, create a mechanism to record data about the incidence of hate-motivated crime in Canada. One of the difficulties in assessing the scope of hate-motivated violence in Canada is the limited scope of data on the subject. Compared with other jurisdictions_such as the United States, where procedures are in place to obtain national data on such incidents_Canada's datagathering mechanisms on this subject are inadequate.<196>
The advantage of creating this kind of data-gathering system would be to obtain more information about the incidence of hate-motivated crimes and thereby to help in formulating both legislative and nonlegislative responses to this problem. For example, such data could be useful in obtaining information about how often such attacks take place, and where most attacks take place, as well as in obtaining general profiles about victims and attackers.<197> In some Canadian cities, such as Ottawa and Toronto, bias crimes investigative units have been set up recently. Thus, some mechanisms are now being put in place at the local police level to help determine if criminal activity is hate- motivated. Creating a federal hate crime statistics act could serve to spur other police forces into collecting similar data.
The disadvantage of this proposal, arguably, is that to
create such a law now, when its effect would be initially
limited, might be an ineffective use of federal resources.
The effect would be thus limited because incidents of hate-motivatedcrimes are not at present systematically recorded
by all police forces. Therefore, it would be premature at
this stage for the federal government to arrange to have
such data collected at the national level until more
collection of such data is done at the provincial and
municipal levels.
7.3 Combatting Hate-motivated Violence By Increasing the
Penalty for the Basic Crime
Option 3. The approach of the present criminal law in combatting hate-motivated violence, which uses evidence of hateful motivation as an aggravating factor to increase the penalty for the basic crime by means of judge-made sentencing principles, should be continued. No changes to the present criminal law should be made to combat this problem.
This option would continue the policy of the present law, which does offer protection to victims of hate-motivated crime by way of judge-made sentencing principles developed through case law. Evidence of the accused's hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera, is used as an aggravating factor to inc - ease the penalty for the basic crime beyond the usual sentence given for that crime when not so motivated.
The benefit of this approach is that it views hateful motivation as one of a number of aggravating factors used to enhance the penalty for committing a crime, and one that is capable of broad application. It also has the benefit of familiarity, since it is, after all, present practice.
The costs, however, of continuing the present practice would appear to outweigh the benefits. Even though case law has held that evidence of hateful motivation should be used as an aggravating factor to increase sentence, to what exlent is this practice followed by judges across the country? After all, the reported cases are instances where the appeal courts have imposed a more severe sentence than that imposed at trial. Moreover, is this the most effective way to denounce such behaviour? To discover the use of such hateful motivation as an aggravating factor [unreadable] sentence, a person must either search case law or textbooks on sentencing practice. It therefore should not be surprising that those who would seek to have the criminal law act more effectively in combatting hate-motivated violence are critical of the approach taken by the present law.<198>
Option 4. Either sentencing guidelines or the Criminal Code should specify that the fact that a person has committed a crime by reason of hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera, should increase the penalty for the crime.
The benefits of this approach would be that increasing the penalty for a crime where the crime was hate-motivated would be set down, either in guideline or in statutory form. Being more visible than the current law, it therefore would have a more denunciatory and educative impact than the present law. As well, by being clearly set out, it could have the effect of ensuring that in all cases of hate-motivated violence, the penalty for the crime would be increased, thereby reducing the possibility that a trial judge might fail to increase the sentence accordingly. As noted earlier, the use of motivation as an aggravating factor in sentencing guidelines has been proposed with regard to federal crimes in the United States.<199>
The use of guidelines has one disadvantage: it may not have the greatest impact in denouncing bias-motivated conduct. Obviously, the less forceful the effect of the guidelines (e.g., merely advisory as opposed to presumptive), the more they approximate the present law, which relies on case law to develop principles of sentencing policy. Moreover, the use of hateful motivation as an aggravating factor in sentencing guidelines makes sense only insofar as the government is resolved to create such guidelines. The longer the delay in setting up such guidelines and the mechanism for monitoring them on an ongoing basis, the more realistic it becomes to look for other methods that could be used as an alternative to sentencing guidelines. The clearest alternative to the use of guidelines in this regard is to amend the Code itself.
One possible reform would be to set out in the Code a statutory list of aggravating factors that would increase the sentence for committing a crime. For example, the Law Reform Commission of Canada, in its final report on _Recodifying Criminal Law_,<200> recommended the creation of a list of aggravating factors that would be placed in the Criminal Code, although provisions relating to the effect of such factors on sentence would be governed by a code of criminal procedure. (These aggravating factors did not, however, include hateful motivation.<201> This approach has the advantage of any codification of the criminal law: it sets out plainly what citizens should or should not do, and therefore has a strong denunciatory effect. In this regard, some American states have created a statutory list of aggravating factors going to increase sentence.<202>
One possible advantage of treating evidence of hateful motivation as just one aggravating factor among many is that this approach would be less criticized by those who would object to specific statutory reforms addressing hate-motivated violence -- for example, the creation of a specific penalty provision that increases the penalty for any crime committed by hateful motivation, on the ground that such an approach fractures the general scope of the criminal law by singling out certain groups for special attention and protection.
A more direct reform would be to amend the Code so that it specifically addresses increasing the sentence for a crime where a person has acted by reason of hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera. For example, as noted earlier, Canadian critics of the present law have suggested that the Code be amended to provide specifically that evidence of racist motivation should result in an increased penalty.<203> The advantage of amending the Code to this effect is to denounce such hateful behaviour as being particularly heinous.
The disadvantage of this approach for those favouring an increased use of the criminal law is that treating evidence of hateful motivation as, in effect, an aggravating factor that raises the penalty for committing a basic crime, still does not adequately recognize the unique kind of harm caused by hate-motivated violence.
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