The Nizkor Project: Remembering the Holocaust (Shoah)

Hate-Motivated Violence

Options for Reform

196. See pp. 10-14 of this paper.

197. Indeed, as noted earlier, in Australia, the National Inquiry into Racist Violence called for the development of "uniform national procedures" for the collection of such data. Human Rights and Equal Opportunity Commission, National Inquiry into Racist Violence, Racist Violence (Canberra: Australian Government Publishing Service, 1991) p. 314 [hereinafter Racist Violence]. As well, it should be noted that a private member's bill, Bill C-45, Bias Incidents Statistics Act, 3d Sess., 34th Parl., 1991-92-93 (Ist reading 8 June, 1993) was introduced into the Canadian House of Commons that would have police forces across the country collect statistics that would indicate the number of incidents investigated by them that were wholly or partly motivated by bias against those sections of the public identifiable on the basis of colour, race, religion, sexual orientation or ethnic origin.

198. See, e.g., the criticisms of the present law set out at pp. 26-28 of this paper.

199. See pp. 38-39 of this paper.

200. Law Reform Commission of Canada, Report on Recodifying Criminal Law (Revised and Enlarged Edition of Report 30) [Report 31] (Ottawa: Law Reform Commission of Canada, 1987) [hereinafter Recodifying Criminal Law].

201. Ibid., p. 71. This list of aggravating factors was to apply, where appropriate, to crimes against integrity such as assault, crimes against psychological integrity such as threatening, crimes against personal liberty such as confinement, and crimes causing danger such as endangering.

202. For an example in American law of the use of racial motivation as an aggravating factor in sentencing, see Illinois Annotated Statutes, c. 38 [p] 1005-5-3.2 (10) (Smith Hurd, 1992 P.P.). It provides the following as an aggravating factor that shall be accorded weight in favour of imposing a term of imprisonment or may be considered by the court in imposing a more severe sentence:

[T]he defendant committed the offense against a person or a person's property because of such person's race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin. For the purposes of this Section, "sexual orientation" means heterosexuality, homosexuality, or bisexuality ....

203. See pp. 26-28 of this paper.

204. P. Finn, "Bias Crime: Difficult to Define, Difficult to Prosecute" (Summer, 1988) 3 Criminal Justice, No. 2, 19, p. 20. Another legal commentator, focussing on the harm done to society, states: "The harm which arises from bias crimes is distinct because an entire disfavoured and discrete group of people is assaulted whenever an individual is assaulted as a result of an immutable characteristic. Communal harmony within society in general is totally disrupted by a single act of arbitrary hatred because of the distrust and fear that is ignited. What is needed is public recognition of these distinct and serious harms, to be achieved through separate state criminal statutes that make an official statement that bias crimes will not be tolerated." (T. K. Hernandez, "Bias Crimes: Unconscious Racism in the Prosecution of 'Racially Motivated Violence"' (1990) 99 Yale L.J:, p. 848.)

205. National Institute against Prejudice and Violence, The Ethnoviolence Project Institute Report No. 1 (Baltimore: 1986), quoted in State of New York, Governor's Task Force on Bias-Related Violence [Final Report] (New York: Division of Human Rights, 1988) pp. 4-5 [hereinafter Governor 's Task Force on Bias-Related Violence].

206. Governor's Task Force on Bias-Related Violence, supra, p. 5.

207. E. Kallen, "Never Again: Target Group Responses to the Debate Concerning Anti-Hate Propaganda Legislation" (1991) 11 Windsor Y.B. Access Just, p. 58.

208. International Convention on the Elimination of Allforms of Racial Discrimination, [1970] Can. T.S., No. 28, Art. 4(a).

209. R. v. Keegstra, [1990] 3 S.C.R. 697, 61 C.C.C.(3d) 1.

210 Ibid. Dickson C.J.C. stated p. 754 (S.C.R.):

C.E.R.D. and L 3. C.P.R. demonstrate that the prohibition of hate-promoting expression is to be not only compatible with a signatory nation's guarantee of human rights, but is as well an obligatory aspect of this guarantee.... [C]anada, along with other members of the international community, has indicated a commitment to prohibiting hate propaganda, and in my opinion this court must have regard to that commitment in investigating the nature of the government objective behind section 319(2) of the Criminal Code. That the international community has collectively acted to condemn hate propaganda, and to oblige state parties to C.E.R.D. and I.C.C.P.R to prohibit such expression, thus emphasizes the importance of the objective behind section 319(2) and the principles of equality and the inherent dignity of all persons that infuse both international human rights and the Charter.

For a discussion of the use of international human rights law in Supreme Court Charter cases, see A. F. Bayefsky, International Human Rights Law: Use in Canadian Charter of Rights and Freedoms Litigation (Markham, Ont.: Butterworths, 1992) pp. 74-100. Anotherpossible interpretation ofthese international human rights documents is that which sees these international commitments as creating international offences which are part of Canadian law by virtue of the Charter, whether or not Parliament decides to create legislation to that effect. See, in the context of war crimes, D. Matas, "The Charter and Racism", a copy of which is on file with the author, originally published in (1990) 2 Const. Forum p. 82.

211. For a discussion of recent federal and provincial initiatives, see Multiculturalism and Citizenship Canada, International Convention on the Elimination of All Forms of Racial Discrimination [Eleventh Report of Canada, covering the period January, 1990 to December, 1991] (Ottawa: Minister of Supply and Services Canada, 1992).

212. Canadian Multiculturalism Act, R.S.C. 1985 (4th Supp.), c. 24.

213. For example, Australia, like Canada, has a parliamentary democracy, has in recent years conducted inquiries into its treatment of aboriginal people, and has a national multiculturalism policy.

214. See The Law Reform Commission, Multiculturalism and the Law [Report No 57] (Sydney, Australia: The Law Reform Commission, 1992) p. 153, 155; Racist Yiolence, supra, footnote 2, pp. 296-298.

215. Law Reform Commission of Canada, Our Criminal Law [Report 3] (Ottawa: Minister of Supply and Services Canada, 1976) pp. 5-6.

216. RA.V. v. City of St Paul, 505 U.S.--, 120 L Ed 2d p. 305 (1992).

217 Keegstra, supra, footnote 14.

218. Wisconsin v. Mitchell, decided in the United States Supreme Court, on June 11, 1993, No. 92-215, 61 LW p. 4575 (unreported).

219. See M. L. Fleischauer, "Teeth for a Paper Tiger: A Proposal to Add Enforceability to Florida's Hate Crimes Act" (1990) 17 Fla St. U. L. Rev., p. 697; Note, "Combatting Racial Violence: A Legislative Proposal" (1988) 101 Harv. L. Rev., p. 1270.

220. Our Criminal Law, supra, footnote 20, pp. 19-28.

221. Ibid., pp. 33-34. The Commission applied these tests of criminality consistently in determining whether or not crimes should be reformed or abolished. For example, in 1984, the Commission applied these tests to conclude that the crime of defamatory libel should be abolished, primarily because there already existed an alternative remedy to deal with the problem_the civil suit of defamation. Law Reform Commission of Canada, Defamatory Libel [Working Paper 35] (Ottawa: Ministry of Supply and Services Canada, 1984) pp. 45-60. As well, the Commission applied the tests to determine the scope of crimes against the foetus. Law Reform Commission of Canada, Crimes Against the Foetus [Working Paper 58] (Ottawa: Law Reform Commission of Canada, 1989) pp. 29-47.

222. See Code ss. 271-273

223. See pp. 19-22 of this paper

224. Recodifying Criminal Law, supra, footnote 5, pp. 67-68.

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