Are these arguments persuasive? First, as regards deterrence: The existence of a criminal law prohibiting hate- motivated violence serves to denounce and condemn such conduct, so that, while it may not dissuade those who are motivated by hatred of a person's race, colour, religion, ethnic origin, et cetera, from committing violence (any more than the law prohibiting murder would dissuade someone who kills in a rage), it does serve to reaffirm the fundamental values of human dignity and equality that are particularly attacked by such conduct. And, by such reaffirmation, the criminal law serves to educate the public that such acts are intolerable. Secondly, as regards the view that these crimes might create more prejudice on the part of the majority in society against minorities: One can argue that, given Canada's commitment to a multicultural, pluralistic society, such laws would be seen as a complement to the crimes of hate propaganda, which do not appear to have created resentment towards minorities by the majority population. Thirdly, although it is possible that such crimes may be used to prosecute members of minority groups who commit crimes of hate-motivated violence, in principle there is nothing wrong with prosecuting under such crimes anyone who commits a hate crime against another. In such a case, the minority community need not see the prosecution as a threat to itself. Fourthly, as regards difficulties in defining a hate crimes law: There are indeed important issues to be resolved in determining how to define such a law, but these issues are not an absolute bar to creating a definition. Finally, as regards the issue of motivation: This would be no more or no less a problem for the courts than that which they now face in addressing the issue of hateful motivation at sentence.
Thus, it is arguable that creating specific criminal
legislation to combat hatemotivated violence would satisfy
the tests of criminality set out by the Law Reform
Commission of Canada. Admittedly, opposite arguments can be
made that creating such legislation is not consistent with
the principles so set out -- that it would offend the
fundamental principle of restraint in the use of the
criminal law by creating duplicate crimes for activity
already caught by the criminal law, and that such
legislation would not significantly contribute to dealing
with the problem any more effectively than does the present
7.4.4 Options in Defining Hate-Motivated Crimes
7.4.4 Options in Defining Hate-Motivated Crimes
Assuming that a crime (or crimes) of hate-motivated violence should be created, how should the crime be defined? A wide variety of options are possible.
There are two components to a crime. First, there is conduct that is prohibited: most often, the criminal law prohibits acts, or the doing of something. Most persons think of crimes in this way; for example, murder or assault. Less often, the criminal law imposes on a person a legal duty to do something, so that a failure to act pursuant to the duty creates criminal liability: for example, the failure of a parent to provide necessities to his or her children (Code, section 215) or -- although currently not law in Canada but proposed by the Law Reform Commission of Canada -- the failure to take reasonable steps to assist a person in danger of death or serious harm.<224> Secondly, a fault requirement is needed to accompany such conduct. The latter is often referred to as the mens rea, or more accurately, the mentes reae necessary to be proved for the finding of guilt in relation to the crime. This fault requirement may be a subjective one -- generally, either the person purposely did or did not do something, or was reckless in so doing or not doing. Recklessness means that the person, although not intending to cause harm, foresaw the likelihood of the harm occurring. Or, depending on how the crime is defined, the fault requirement may be an objective one -- in other words, the crime may catch negligent conduct. In this case, the accused's subjective state of mind is irrelevant in establishing the requisite mens rea. For example, in the recent case of R. v. Hundal,<225> the Supreme Court of Canada rejected claims that the crime of dangerous driving set out in section 249 of the Code requires that an accused be aware of the consequences of his or her driving, and instead approved of an objective standard of liability as being sufficient to establish the mens rea requirement for the crime.
What conduct should be caught by any proposed law prohibiting hate-motivated violence? What should the mens rea requirement be for the crime? A number of options are possible.
Option 6. A specific crime of institutional or religious vandalism should be created. In addition, there should be created a crime of bias intimidation, which would have as part of its definition committing certain general crimes, such as mischief, assault, or threatening harm, by reason of hatred of a person's actual or perceived race, colour, religion, et cetera, and which would be more severely punished than the general crimes.
This option is designed to create a crime or crimes of hate- motivated violence largely based on the ADL model legislation, noted earlier.<226> That model legislation created two separate crimes: institutional vandalism (such as vandalizing a place used for religious worship), and intimidation. The definition of this latter crime states that the crime should catch the penal code provision for "criminal trespass, criminal mischief, harassment, menacing, assault, and/or other appropriate statutorily proscribed criminal conduct".<227> The selection of substantive crimes for the purpose of a bias intimidation statute could be based, to some degree, on this model legislation. For example, it could catch hate-motivated mischief (Code, section 430), assault (Code, section 266), assault with a weapon or causing bodily harm (Code, section 267), aggravated assault (section 268), and uttering threats (Code, section 264.1).
The benefit of such legislation would be that certain kinds of hate-motivated conduct would be treated as crimes in their own right and hence would have the maximum possible denunciatory and educative impact.
Those who would disagree with the creation of specific criminal legislation to combat hate-motivated violence, however, would argue that there are several disadvantages to such legislation. It unnecessarily duplicates the protection offered by the present law; it arguably may be used only in the most certain of circumstances where hateful motivation can be proved beyond a reasonable doubt; it may have the unintended effect of creating resentment against minorities in society; and it may be used against members of minority groups.
One arguable disadvantage for those who would favour the maximum protection of the criminal law is that creating a criminal law that singles out only certain kinds of basic crimes for inclusion in criminal legislation to combat hatemotivated violence is adopting an ad hoc approach.<228> There are many acts that can be committed in criminal law, ranging from theft to fraud, from assault to murder. Why should some acts of violence be covered by a criminal law prohibiting hatemotivated violence, while others are not?
Option 7. A general crime of hate-motivated violence should be created.
An alternative to the approach outlined in Option 6 would be to adopt a more principled approach and create a criminal law of hate-motivated violence that would apply, generally, to all acts of violence. This approach would no doubt best ensure that hate-motivated violence of whatever kind is denounced by the criminal law.
This approach, arguably, best ensures compliance with CERD, since that international instrument requires that a State Party "declare an offence punishable by law . . . all acts of violence or incitement to such acts of violence against any race or group of persons of another colour or ethnic origin" (emphasis added).<229> An example of this approach is the draft law prohibiting racial violence proposed by the Australian Law Reform Commission, which speaks of a person who "commits or threatens to do an act of violence".<230>
And yet, one disadvantage of this approach would be that such a definition, in itself, without more, would be too vague. The Australian Law Reform Commission recognized the vagueness of the term "an act of violence", stating that "because this phrase is not precise enough in itself to identify the relevant offences, it is essential that they be individually identified" and attached to a schedule to the act creating the crime.<231> Yet the use of a schedule to aid in understanding the more precise scope of a broadly defined crime is difficult to justify, because it appears to detract from the principle that crimes should be defined with reasonable clarity so that persons can understand them. Resort to a schedule can be seen as an admission of failure: that the crime itself is too broadly defined to be able to inform the public with adequate clarity what conduct is prohibited.
In response, however, one could argue that the Code does recognize certain instances (e.g., firearms offences) where the precise scope of a crime is not found exclusively in the Code, but is fleshed out by governmental regulations. Moreover, it should be noted that our present Code, in some sections, does use broad terminology to define the conduct it wishes to catch. For example, Code, section 269.1, the crime of torture, is defined as meaning "any act or omission by which severe pain or suffering, whether physical or mental", is intentionally inflicted on a person for certain purposes or for any reason based on discrimination of any kind.<232> Arguably, there is little difference between an "act of violence" that is hate-motivated and an "act or omission by which severe pain or suffering" is inflicted.
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