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Hate-Motivated Violence

Options for Reform
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225 R. v. Hundal, judgment rendered by the Supreme Court of Canada March I I, 1993. It should be noted that negligent conduct for the purposes of a criminal prosecution requires conduct that is a marked departure from the standard of care that a reasonable person would observe in the accused's situation. This a higher standard of negligent behaviour than is required for a civil action. For proposals regarding the standard of negligence to be met in the context of the criminal law and when negligent conduct should be caught by the criminal law, see Recodifying Criminal Law, supra, footnote 5, pp. 25, 56, 62, 67-68. The recent House of Commons Report of the SubCommittee on the Recodification of the General Part of the Criminal Code of the Standing Committee on Justice and the Solicitor General, First Principles: Recodifying the General Part of the Criminal Code of Canada (Ottawa: Queen's Printer, 1993) recommended, on p. 22, that a recodified General Part be based on the principle that subjective fault is the usual requirement for criminal liability and that objective fault be used with restraint.

226. See pp. 39-40 of this paper.

227. Anti-Defarnation league of B'nai Brith, ADL Law Report, Hate Crimes Statutes. A 1991 Status Report (New York: Anti- Defarnation League, 1992) p. 4 [hereinafter Anti-Defarnation League].

228. American states vary in their description of the basic criminal conduct that ground their hate crimes statutes. The present Illinois hate crime statute singles out the crimes of assault, battery, aggravated assault, misdemeanour theft, criminal trespass to residence, misdemeanour criminal damage to property, criminal trespass to vehicle, criminal trespass to real property or mob action. Ill. Ann. Stat., Ch. 38, 12-7.1 (Smith Hurd, 1992 P.P.). Michigan's ethnic intimidation statute catches a person who "[c]auses physical contact with another person" or who "[d]amages, destroys, or defaces any real or personal property of another person", or who threatens to do so. Mich. Ann. Stat., 28.344(2) (Callaghan, 1990).

229. International Convention on the Elimination of All Forms of Racial Discrimination, Article 4(a), supra, footnote 13.

230. The Law Reform Commission, supra, footnote 19, Appendix A, Draft Legislation, p. 283.

231. The Law Reform Commission, supra, footnote 19, pp. 156- 157, 294-295.

232. See also section 7 of the Code, which contains several crimes, such as committing a crime aboard an aircraft, crimes against humanity and war crimes, which are defined broadly in terms of a person committing "an act or omission", that, in many cases, would be a crime in Canada if committed in Canada

233. Wisconsin v. Mitchell, supra, footnote 23, p. 4578 (unreported).

234. See Code, section 235 (penalty for murder, minimum sentence of life imprisonment); other crimes that involve the killing of a person allow for the possibility of a sentence of life imprisonment_see section 220 (causing death by criminal negligence, liable to imprisonment for life); section 236 (penalty for manslaughter, liable to imprisonment for life).

235. See Code, ss. 231(4)(a); 231(5).

236. Alternatively, a more limited variation could be made. If a crime of hate-motivate violence was narrowly defined to mean, e.g., hate-motivated assault, Code, subsection 231(5) could be amended to provide that if the death of the victim was caused while the person committing that crime was hate- motivated, the death would be defined as first-degree murder.

237. This is also the conclusion reached by the Australian Law Reform Commission, supra, footnote 19, at 158 in explaining that the present Australian offence of inciting the commission of a federal offence would make incitement to commit the crime of racist violence a crime in the event that a crime of racist violence were to be created. In contrast, the Australian National Inquiry into Racist Violence recommended the creation of a specific offence of incitement to racist violence and to racial hatred likely to lead to violence. Racist Violence, supra, footnote 2, p. 298.

238. See Code section 22 ( a person who counsels [which includes incites] another to be a party to an offence is also a party to the offence, notwithstanding that the offence was committed in a way different from that which was counselled, etc.); section 464 (criminal liability is imposed for someone's counselling another to commit an indictable offence even though the offence was not committed but only attempted, etc.). For proposals for a reform of the principles governing secondary liability, see _Recodifying Criminal Law, supra_, footnote 5, pp. 43-48.

239. Anti-Defarnation League, supra, footnote 32, p. 4.

240. The Law Reform Commission, supra, footnote 19, p. 283.

241. For example, in the shooting death of Leo Lachance, the accused Nerland was charged with manslaughter, an offence of recklessness, and the trial court had to determine whether the accused was motivated by racism in acting recklessly. See Report of Commission of Inquiry info the Shooting Death of Leo Lachance (Saskatchewan, 1993) (Chair: E.N. Hughes).

242. The Law Reform Commission, supra, footnote 19, p. 157.

243. Assuming that the law should require proof of hateful motivation, should the formulation of such motivation be broadly worded or should it be more precise? For example, should it require that hatred of a person's actual or perceived race, colour, religion, ethnic origin, etc., be the sole reason, a substantial reason or just one reason among others for committing the crime? For a further discussion of vagueness in the formulation of the hateful motive as regards mixed-motive situations, see S. Gellman, "Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws" (1991) UCLA L. Rev., p. 357. Of course, the more strictly worded the hateful motivation component, the more difficult it becomes to prove such motivation, and this criminal law may become less used than intended as a result.

244. Racist Violence, supra, footnote 2, p. 181. See pp. 181- 208 of that report for a full discussion on "Racist Violence against People Opposed to Racism".

245. See Fleischauer and "Note", supra, footnote 24.

246. The argument in favour of the constitutionality of such a proposal is that the crime operates like an affirmative action program in ameliorating the conditions of disadvantaged individuals or groups. However, this proposal has been criticized as being unconstitutional in the American context. See J. Morsch, "The Problem of Motive in Hate Crimes: The Argument Against Presumptions of Racial Motivation" (Fall, 1991) 82 J. Crim. L. & Criminology, No. 3, pp. 681-686.

247. Anti-Defamation League, supra, footnote 32, pp. 4-5.

248. See, e.g., Florida, which provides, where there is a violation of its hate crimes statute, for a civil cause of action against the attacker for treble damages, an injunction or any other appropriate relief in law or equity. Fla. Stat. Ann. 775.085, section 2 (West 1992).

249. See pp. 61-65 of this paper

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