The advantage of this proposal is that, by having this uncommon remedy available, the criminal law would be seen to strongly denounce such violence. It also would be able to provide a partial monetary remedy to the victim of hate- motivated violence.
The disadvantage, however, of this option is that an overbroad use of this remedy may fall afoul of the constitutional requirement that what must be legislated is something that is in pith and substance criminal law, not civil law. Perhaps a punitive damages provision tied to the sentencing process in relation to some, not all, hatemotivated crimes and structured to produce the exercise of restraint in its application would satisfy this concern. A further disadvantage is that this would create an inconsistency in approach between hate-motivated violence and other kinds of violence or hatred. For example, why should punitive damages be imposed for hate-motivated violence but not for the crimes of sexual assault or wilful promotion of hatred?
Option 15. Consideration should be given to the creation of a crime of violating a person's constitutional rights.
This option would create a crime of violating a person's constitutional rights. This option is modelled after American federal civil rights law, whereby a person acting under color of law who is prosecuted under state criminal law and acquitted may be prosecuted again under this federal law for violation of the victim's federal civil rights. The most topical example of this federal legislation was the recent federal trial of the police officers who beat Rodney King in Los Angeles, California.<249>
The advantage of this proposal would be to have the Criminal Code expressly protect the rights and freedoms set out in the Charter from the abusive exercise of authority by government agents.
However, there are serious disadvantages to this option. Unlike in the United States, the creation of criminal law in Canada falls exclusively within the jurisdiction of the federal government, and so the use of a federal prosecution in situations where a "state" criminal prosecution has previously failed does not arise in Canada. There are also other problems with adopting the American approach here, which have been mentioned earlier. How broad in scope would such a crime be -- arguably it should catch only violent conduct? How effective would the crime be, given the need torespect protection against double jeopardy? Also, should cases akin to the Rodney King case arise in Canada -- where peace officers are accused of using unreasonable force against a member of a minority group -- existing criminal law provisions can be used to prosecute the officers. Arguably, if the aim is to address hate-motivated violence, the most effective way to do so is by way of criminal legislation that aims at such violence. Therefore, it is suggested that this aspect of reform merely be given consideration.
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