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Shofar FTP Archive File: orgs/canadian/canada/justice/disproportionate-harm/dh-004-03

Archive/File: orgs/canadian/canada/justice/disproportionate-harm/dh-000-03
Last-Modified: 1997/01/12
Source: Department of Justice Canada

4.6 Canadian Hate Crime Statstics Act (Proposed)

Bill C-455 <23 An Act to provide for the collection of
statates respecting incidents investigited by police forces
where those incidents manifest evidence of bias against
certain identifiable groups.> received first reading in Jume
8, 1993. As with most private member's Bills, it was not
reviewed by the House of Commons Committee on Justice and
Legal Affairs, and no plans exist to review it in the near
future. The purpose and scope of the Bias Incidents
Statistics Act is summarized well in an explatory note:

     The purpose of this Bill is to 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 or individual members of the public
     distinguished by colour, race, religion, sexual
     orientation or ethnic origin and that would identify
     the sections or persons who were the target of bias in
     each such incident. These statistics would be submitted
     to the Solicitor General of Canada and receive public
     exposure by being tabled in the House of Commons.

Several comments are worth making about this proposed Bill
(see Appendix C for the complete text). First, it adopts a
broad definition which does not require an  exclusive
motivation. This is consistent with the United States Hate
Crime Statistics Act, and with some, but not all of the
police forces in Canada (see earlier sections of this
report). Second, the act calls for the federal Solicitor
General to establish criteria  for the classification of
hate crimes. This too, is consistent with the United States
statute. Third, the Bill identifies a list of target groups,
although it does not include all the categories mentioned in
the Sentencing Reform Bill: mental or physical disability
and age are absent from the Bias Incidents Statistics Act.
Why these were omitted is unclear. Finally, it is worth
noting that this act is designed to draw attention to the
problem of hate crimes, by virtue of the fact that these
statistics would  be tabled in the House of Commons, and not
simply submitted to the Ministry of the Solicitor General in
the form of a research report.

Is it necessary to adopt a Hate Crimes Statistics Act in
Canada? In my view, the answer to this question depends upon
the degree of consensus surrounding the previous issues
relating to the collection of information about hate crimes.
If police  forces show little sign of consensus, or little
interest in co-ordinating efforts in terms of data
collection and offence definition, then passage of such a
statute may be the only way in which a systematic picture of
the hate crime problem can emerge. On the other hand, it is
clear from the police forces that participated in the survey
that gave rise to this report, that significant interest
does exist within the policing community at the present
time. Passage of a hate crime statistics act will not solve
all the problems  associated with the definition and
collection of such data. It would be unwise to think
otherwise. Nor will such an act do much to facilitate the
prosecution of such crimes. However, what the act will do is
promote consistency in the collection of hate crime
statistics, and this is an important first step.

If national hate crime statistics are compiled by local
forces and sent to a  central data repository such as
Statistics Canada, will this obviate the need for individual
community groups such as B'nai Brith to compile their own
statistics? The  answer is probably not. Police statistics
will always be susceptible to reporting biases,  and the
only way of knowing about the true incidence of hate-
motivated crime is to  have an independent source of
information. In the absence of a periodic victimization
survey, we will remain dependent upon community groups to
provide information on  hate crimes that are not reported to
the police. As well, non-criminal justice  organizations
such as B'nai Brith have been instrumental in sensitizing
the community  to the magnitude of the hate crime problem
(see Czajkoski, 1992).

4.7 Classification of Hate Crimes

The way in which hate crimes are currently classified by the
criminal justice  system diminishes our awareness of the
impact of these crimes. To take but a single  example,
consider one of the most common forms of hate or bias
crimes: defacing  religious symbols. There have been many
instances over the past few years of the  desecration of
Jewish cemeteries both here and in Europe. <24 The incidents
that occurred in southern France in 1990 are the most
notorious examples, but they have been repeated in many
countries since.>  These incidents have  been classified as
mischief. According to Section 430. (1) of the Criminal
Code,  "Every one commits mischief who wilfully (a) destroys
or damages property". Classifying hate crime incidents in
this way has at least two important negative  consequences.
First, it diminishes the importance of hate crimes by
lumping them together with other, far less malign incidents
of vandalism. Spray-painting swastikas on headstones is
treated, in terms of the Criminal Code charge against an
individual, in  the same way as a teenager who spray-paints
his initials on a school wall, although the  social harm
(and the culpability of the offender) is considerably
greater. Even the  word "mischief" has a popular connotation
of a very minor offence. The term  "vandalism" is not much
better: it conjures up images of graffiti on subway trains,
and  implies an act that is relatively trivial, and rather
mindless (see Wolfgang, Figlio,  Tracy and Singer, 1985).
Hate crimes are clearly more serious and, far from being
mindless, are purposively directed at specific targets, and
reflect a definite ideology of hatred (see Hamm, 1994).

The second problem is that offenders of very different
degrees of culpability are classified in the same way. This
homogenization may be addressed at the stage of sentencing
(for those cases that eventually result in a conviction).
That is, judges may impose sentences which reflect the
additional harm of hate-motivated crimes.  However, this is
poor substitute for a more accurate classification at the
level of the charge. As well, there is the question of the
criminal record. Drawing upon prior  convictions as
contained in a CPIC file, a judge sentencing an offender
with prior convictions of mischief would have no way of
knowing about the nature of the  previous offending. This is
because the CPIC system does not include such  information.
The severity of the sentence would therefore fail to reflect
the  seriousness of the offence for which it was imposed,
thereby undermining the critical principle of
proportionality in the sentencing process. <25 This critical
principle of proportionality in sentencing permeates the
sentencing literature (see, for example, Canadian Sentencing
Commission, 1987). As well, the principle lies at the heart
of the statement of sentencing purpose and principle
contained in the Sentencing Reform Bill (C-41) which is
currently being reviewed by Parliament (see Roberts and von
Hirsch, 1995).>

A central issue that has to be resolved then, in this area
is whether it is appropriate to create specific hate crimes.
This issue has already been addressed, and there are complex
arguments on both sides (see Gilmour, 1994: 77-86 for a
thorough discussion). However the question is eventually
resolved, it does seem clear that the status quo, in which
offenders can commit repeated acts of criminal hatred
without this necessarily being recognized by the criminal
justice system, is inadequate.

In short, the use of a catch-all offence like mischief leads
to a loss of precision in the application of the criminal
law. Of course, the same argument applies to racially-
motivated assaults. Under the present system, we have no
reliable way of knowing whether a recidivist offender's
previous convictions for assault were raciallymotivated or

Accordingly, in my view, there is a powerful argument to be
made for the creation of some specific hate crime offences.
For example, there could be a specific offence such as the
desecration of religious symbols, property or institutions.
This is a recommendation that has been advanced by numerous
groups in Canada and elsewhere, including B'nai Brith Canada
(League of Human Rights, 1993: 44). Creating a limited
number of hate crimes would not result in duplication of
offences for the reason that the desecration of a tomb is
not the same criminal act as the spray-painting of a subway
train. Attempting to respond to the former act by
classifying it in the same Criminal Code section as the
latter is inevitably going to lead to a trivializing of what
is a serious crime. Nor can this additional element of harm
be adequately recognized at the time of sentencing, for the
reasons outlined above.

Finally, the experience in other jurisdictions has shown
that a vigorous response to hate crimes has positive effects
both in terms of reducing the incidence of such offences,
and also promoting more cohesive communities, in which the
various minorities that have traditionally been the target
of hate crimes feel their needs have been addressed. The
police response is a critical component in the effort to
address the problem of hate crimes, but it is still only one
component. There are other steps that can be taken. One of
these consists of promoting public awareness of the problem,
and public confidence in the system's response. A good
example of a proactive approach to the problem is the
billboards that have been placed in the Toronto Transit

4.8 Police Training Initiative

Passing laws and setting up systems to collect data simply
are not enough. The states must train local law enforsement
officers in how to detect hate crimes, how to respond to
those crimes and how to report them accurately and
completely (Coldren, 1991: 131).

Police training in the area of hate crime investigation is
critical. While a uniform definition of what constitutes a
hate crime is obviously going to be useful, if officers are
not provided with the skills and training to correctly
identify and classify reports of hate crimes, the national
statistical database will be of little utility. As one
officer responding to the Department of Justice Canada data
request noted:

The integrity of the [hate crime] data system will be
dependent on the foundation of a consistent definition as
well as consistent application of the definition by police
services across the country.

It is clear that the police response to hate crimes could
benefit from additional training. While members of several
Canadian police forces have travelled to the United States
to acquire experience in responding to hate crimes, there
has been no national training initiative. The experience in
Toronto and Ottawa could be of considerable use to other
Canadian police forces. If there were a national hate crime
workshop for police officers , the experiences in
Ottawa and Toronto could be shared across the country. This
would promote a more uniform response in terms of
procedures, training and investigation. This training should
also include how to deal  with the victims of hate crimes in
a sensitive and appropriate manner. While a number of
national police training initiatives exist in other areas
such as domestic violence (e.g., Roberts and O'Sullivan,
1993), there is currently no training for police officers in
the area of hate crimes. And since, detecting hate
motivation is a problem  that will confront all police
officers, not just members of a specialized hate crime unit,
consideration should be given to making hate crime training
a part of the basic training for recruits.

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