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Shofar FTP Archive File: orgs/canadian/canada/justice/disproportionate-harm/dh-001

Archive/File: orgs/canadian/canada/justice/disproportionate-harm/dh-001
Last-Modified: 1997/01/12
Source: Department of Justice Canada


The first step in addressing hate crimes is to know the
magnitude of the problem (Marowitz, 1991: 3).

The problem of hate crime of one form or another is a truly
global phenomenon, and Canada is no exception. The
international news media report incidents of hate crime on
an almost daily basis, whether it is anti-semitic propaganda
or the desecration of synagogues in France, extreme violence
directed against immigrant minorities in Germany (Aronowitz,
1994; Ward, 1991) or Scandinavia (Bjorgo, 1994; Loow, 1995),
racial assaults in Great Britain (see Bowling, 1994) or more
systematic crimes of hate against whole communities in
Bosnia Herzegovina (Hamm, 1994). In Canada, the domestic
incidents of hate crime that have been reported in the news
media are, to date, less extreme, yet the problem may well
be just as insidious.

There has been little empirical research on the issue of
hate crimes in Canada. One reason for this is the absence,
so far, of comprehensive criminal justice statistics which
include information on the offender's motivation. As will be
seen later in this report, police services across Canada
have only recently begun accumulating hate crime statistics
in a systematic fashion. Although a number of recent
scholarly articles have addressed the topic (e.g., Gilmour,
1994; Ross, 1994), Canada lacks a comprehensive examination
of hate crime statistics.

The problem of hate crimes is of relevance to two recent
legislative initiatives in Canada, both of which will be
explored in greater detail later in this report. One is Bill
C 455, the Bias Incidents Statistics Act, which received
first reading in 1993. This statute calls for the collection
of national statistics relating to crimes motivated by hate.
The second relevant Bill is Bill C-41, the Sentencing Reform

One of the critical provisions of that Act creates a
statutory aggravating factor, which requires harsher
penalties for crimes motivated by hate.

1.1 Purpose of Report

The present document differs from previous reports on this
issue in that the emphasis is on empirical data, and
criminological aspects of the problem. In fact, the purpose
of this report is two-fold. First, to describe and evaluate
the data currently available relating to hate or bias crimes
in Canada. This part of the report consists of an analysis
of data provided to the Department of Justice Canada in
response to a special request for current statistical
information. At this stage such an exercise must be
preliminary in nature, as few groups collect hate crime
statistics on a systematic basis, and not all police forces
across the country have invested to the same degree in the
collection of such statistics. Although the focus is on
statistics relating to hate crime, a number of
recommendations are made regarding the criminal justice
response to the phenomenon of hate crime in Canada. The
second purpose consists of outlining and evaluating the
options facing the criminal justice system in terms of
collecting better information about this kind of criminal
activity. Throughout the document there is an attempt to
place issues relating to the definition and incidence in an
international context. Comparisons are made with findings
from two other jurisdictions: the United Kingdom and the
United States.

This report continues a recent Department of Justice Canada
initiative in the area of hate or bias crime. Earlier
documents which address this issue include a legal analysis
of criminal law aspects of the problem (see Gilmour, 1994)
and a survey of hate motivated activity (see Nelson and
Kiefl, 1995). The emphasis is upon hate crime statistics
derived from police services across the country, although
data from B'nai Brith, and two organizations in Toronto and
Montreal that collect information on hate crimes directed at
gays and lesbians are also included. For more information on
the more general topic of hate crime activity, the reader is
directed towards a report entitled, "Survey of Hate-
Motivated Activity" (Nelson and Kiefl, 1995).

As will be seen, the focus of this research is upon crimes
motivated by hatred or bias, rather than the offences
defined in sections 318-320 of the Criminal Code which
address hate propaganda. Far less is known about crimes
motivated by hate than the hate propaganda offences which
have received a great deal of attention as a result of
several causes celebres in recent years. 

The document begins with a discussion of the nature of hate-
motivated crimes and the difficulties surrounding the
collection of statistics in this area. Varying definitions
of hate-motivated crimes are then presented. We then review
the incidence of hate crimes in two other jurisdic ions (the
United States and the United Kingdom) before presenting a
summary of hate crime statistics in Canada. These data are
drawn from private agencies (e.g., B'nai Brith Canada) as
well as the criminal justice system. The report concludes
with a discussion of ways to improve the collection of
police statistics relating to hate crimes. Various options
are evaluated, including passage of a Hate Crimes Statistics
Act comparable to that which was passed by the United States
Congress in 1990.

1.2 The Issue of Disproportionate Harm

There are several reasons why the criminal justice system
singles out hate crimes for special attention. Garafolo and
Martin (1991) identify three principal justifications.
First, hate crimes have effects upon the victim beyond those
commonly associated with non-bias crimes. They note that:

     the characteristics that elicit the victimizations
     (e.g., race, ethnicity, religion) are often important
     elements in the victim's own sense of identity, thus
     presenting the bias crime victim with additional
     factors that can create feelings of anger and
     vulnerability" (p. 18).

For example, a gay person who is attacked or harassed
because of his or her sexual orientation will suffer the
physical consequences of the assault as well as the affront
to their character.

The second reason noted by these authors for paying special
attention to hate crimes is the impact that they have on
whole communities. Hate crimes increase the level of fear,
and can only heighten tension between different racial and
ethnic groups. This observation has been made by many
writers. Sanderson (1991: 43) for example, notes that, " a
hate crime resembles no other crime. The effects of hate
crime reach beyond the immediate victim or institution and
can damage society and fragment communities". This
constitutes an additional element of harm, which accordingly
should be recognized by the criminal law.

That said, there are at least two reasons to believe that
hate crime statistics underestimate the full extent of harm
inflicted upon the community. The first of these is
essentially a statistical argument. It is clear that the
hate crime statistics available to date underestimate the
true incidence of this form of criminal activity in Canada.
The extent of this underestimation must remain unknown until
such time as better sources of data are available. It would
be a mistake to measure the importance of hate crimes simply
by the number of incidents reported to the police. But there
is another way in which these statistics underestimate the
importance of the problem. The statistics fail to convey a
sense of the true harm inflicted upon the individuals and
groups that are the target of hate crimes.

To some degree this can be said of any statistical
information. The Uniform Crime Reporting (UCR) statistics
published annually by the Canadian Centre for Justice
Statistics provide a useful source of the kinds of incidents
reported to the police (e.g., Canadian Centre for Justice
Statistics, 1994). However, they fail to convey a sense of
the full impact upon the victim. This is particularly true
for hate-motivated crimes. A recent study conducted by the
League for Human Rights for the Commission on Systemic
racism in the Ontario Criminal Justice System is revealing
in this respect. This research consisted of a series of
focus groups with members of :several ethnic minorities (see
League for Human Rights, 1993). The general conclusion of
that research was that racially motivated crime is an issue
of serious concern to all the groups studied (South Asian,
Asian, Muslim, Jewish, Black, and Aboriginal communities in
Toronto). The harm is not restricted to just the victims
involved. Hate crimes convey a message of fear to all
members of the community to which the specific individual
belongs. The seriousness of a hate crime cannot be fully
understood without taking this additional element into
consideration. The harm lies in the atmosphere of fear and
apprehension to which all hate crimes contribute.

It is also worth noting that research in other jurisdictions
shows a clear association between the presence of hate
motivation, and the extent of injuries inflicted in crimes
against the person. For example, Levin and McDevitt (1993)
review data from the Boston Police Department showing that
assaults motivated by hate resulted in greater physical
injury than other forms of assault. According to this same
source, victims of hate-motivated violence experienced two
to three times more negative psychological and behavioural
sequelae than victims of violence not motivated by racial or
ethnic hatred.

Canadians who are not members of one of the communities
usually targeted may have difficulty comprehending the
seriousness of hate crimes. We can all appreciate the
potential impact of break and enter, or an assault, but it
may be harder for some people to fully appreciate the impact
of a racially-motivated attack or an attack on a gay person,
either on the specific individual or the community targeted.
This may explain why police officers interviewed by the
League for Human Rights acknowledged that racially motivated
crime was not an issue for Torontonians in general (League
for Human Rights, 1993: 12-13). And, since racial minorities
are under-represented among criminal justice professionals,
the effect may be that the seriousness of hate crimes is not
fully appreciated by the criminal justice system.
Respondents interviewed for the League for Human Rights
study also stressed the need to continue efforts to raise
awareness within the police about the issues surrounding
victimization in hate crimes. The problem of insufficient
awareness among criminal justice professionals (including
the police) has also been noted in other countries (see
Levin and McDevitt, 1993).

The statutory penalty enhancement for hate-motivated crimes
which is contained in the sentencing reform Bill exists to
reflect the fact that the harm is not restricted to a
specific individual. Carrying this logic to the level of a
police report, it is obvious that a police report cannot
capture the full impact of a hate crime upon the community
to which the victim belongs. This alone distinguishes hate
crimes from offences committed for some other motivation.

1.3 Victims' Rights and Responses

The issue of identifying hate-motivated crimes also has
important consequences for victims' rights and responses to
the criminal justice system. If a crime is motivated by
racism, and this is not taken into account by the criminal
justice system, then the system has effectively failed to
reflect the true extent of the harm to the victim. To the
extent that victims are aware of this, they may well become
disenchanted with the criminal justice response, and this
may reduce still further the probability that such incidents
will be reported to the police. Moreover, since hate crimes
are directed at large groups (e.g., a particular racial or
ethnic minority, or all members of a religion), the harm is
far greater than if a only a single victim was affected (see
Ferry, 1991: 85). The role of the victim also has
consequences for the collection of hate crime statistics. As
Cook (1991) notes, "a good reporting and analysis system
sends a positive message to the victims of bias incidents:
government cares". There are also consequences for victims
if the police fail to accurately record hate crimes. As
Levin and McDevitt (1993: 169) note:

     The failure of an officer to properly identify an
     incident as hate motivated sometimes results in
     escalated violence and additional harm to the victim.

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