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Shofar FTP Archive File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-012-02

Archive/File: orgs/canadian/canada/justice/ethnocultural-groups/ecg-012-02
Last-Modified: 1997/01/29
Source: Department of Justice Canada

12.2.1 Offensive Behaviours Motivated by Hatred

Referred to by various titles such as "hate-motivated
crime," "bias-motivated crime," and/or "racist crime," acts
of violence against property and/or persons which are
somehow motivated by hatred are a key concern for
ethnocultural and minority groups in Canada.<318> These
behaviour ;, ranging from vandalism and property damage to
assault and even murder, are criminal offences in Canada.
However, a "hate crime" (other th-an hate-propaganda
provision) does not exist within Canada's criminal law. Hate-
motivated behaviours, as Gilmour argues, are different from
offences against property and persons which are not
motivated by an underlying hatred against some identifiable
group of people, and the difference between "crime" and
"hate-crime" on the victim is important.<319>

An assault, an act of vandalism, or another act motivated by
hatred is qualitatively different from a similar act which
is not hate-motivated. The victim of an assault, for
example, where the person is not targeted because he or she
is a member of a minority group may view his or her
misfortune as the result of having been in the wrong place
at the wrong time. Even if there is resentment about the
unsafe nature of public places, the victimization is a
product of circumstance. On the other hand, it may be argued
that the victim who is singled out for attack because of
hatred for who she or he is or, because of membership in an
identifiable group, suffers a qualitatively different
injury. In such cases, there is a deeply felt sense of
personal injury and continuing sense of apprehension and
threat, which does not seem to arise from acts perceived to
have occurred due to random circumstance.<320>

Hate-motivated acts may also have a societal effect, which
sets them apart from similar acts not directed at particular
groups because of a dislike for them. Hate-motivated acts
produce situations where people feel threatened because they
are members of a group. People think of themselves and
others, and their behaviour toward others is based on
expectations and characteristics of social categories. Thus
relationships between groups are affected, possibly
resulting in social tension along ethnic or racial

Based on these kinds of considerations, Gilmour suggests
that Canada needs to take some form of legislative action to
distinguish hate-motivated offences from typical Criminal
Code offences.<322> In doing so, Gilmour explores the
possibilities for doing so through the criminal law. He does
not make specific recommendations on how this should be
undertaken; rather, he carefully delineates the options
available for doing so. Two of these options include the
creation of a specific provision in the criminal law to make
hate-motivated behaviour a crime in itself, and the
provision of sentencing principles in the criminal law to
identify hate motivation as an aggravating factor to be
accounted for at sentencing.<323? As Gilmour implies, it may
not be important which option is adopted, as long as one of
them is implemented. Given Canada's multicultural heritage
and the explicit policy of multiculturalism, Gilmour
suggests that it is important to symbolically recognize the
difference between typical crimes and hate-motivated crimes.
He also argues that the law could have other beneficial
effects through, for example, the educative function of
law.<324> As well, the symbolic effect of a hate-motivated
provision in the Criminal Code may have an important impact
on peoples' sense of personal safety and security.

It would seem, then, that it is important to address the gap
in Canadian law which recognizes some forms of hate crimes
(i.e., hate propaganda) but not others (i.e., personal and
property violence against members of racial and visible
minority groups). How this is done is a policy issue, but
the desire for such an undertaking seems clear. However, as
Gilmour suggests, it may well be that a criminal law
amendment will largely have only a symbolic effect. Other
avenues for addressing expressions of racist hatred will
likely be needed to effectively reduce the amount of hate-
motivated offences in this country. These other options
range from education programs to other legal options.
Education programs could, for example, be introduced in
schools to discourage recruitment of youth to organizations
that espouse violence against minority groups. Other legal
options could include the use of civil remedies in cases of
hate-motivated behaviour in order that the offended group
could recoup monetary penalties from the offender and use
the monies to promote respect, tolerance and acceptance, to
provide restitution to the victim, and/or to improve safety
and security for the community.

Any criminal law approach would need to consider an
important technical legal problem. The criminal law requires
that the offender have criminal intent or mens rea in order
to be found "guilty" of an offence. In the case of hate-
motivated behaviours, the intent would not be easy to
"prove." In order to effect a criminal law response,
therefore, this problem must be addressed.

12.2.2 Hate Groups

The third aspect of the interrelated problem of hate crimes,
the existence and activities of hate groups, is perhaps the
most important aspect of the three. That is, given that these
groups are involved in activities which relate to the
commission of hate crimes, addressing and controlling hate
groups would seem an important aspect to be addressed in the
overall problem. The continuing presence of hate groups and
their seemingly increasing visibility in Canadian society is
a threat to peaceful relations between and across groups in
the Canadian mosaic, and their activities are a constant
threat to the security and personal safety of racial and
visible minorities in Canada. This, however, proves to be the
most difficult aspect to address through legal avenues.
Specifically, given the rights and freedoms guaranteed in the
Charter, it may not be possible to ban hate groups in Canada.
325 This, however, should not be considered an entirely
pessimistic view with regard to addressing hate groups in

While it may not be possible to outlaw these groups, it is
still possible to control their activities through the law.
The most obvious example is the use of hate propaganda
provisions to control the production and dissemination of
hatepropaganda by these groups. However, as noted above, the
hate-propaganda provisions of the Code have rarely been used
and there is some question about their effectiveness in
limiting the activities of groups. As well, given that there
is a need to draft legal provisions for dealing with other
hate-motivated offences, these new provisions could be used
to limit and/or control the activities of hate groups. It
may be possible, for example, to do this by implicating
group leaders and/or members in the hate-motivated offences
of other group members through special conspiracy provisions
relating to hate-motivated offences.

What is needed in the attempt to undertake legal responses
to the activities of any hate group, however, is a much
clearer understanding of the organization, structure, and
activities of each group. Since such groups cannot, and
perhaps should not be outlawed, avenues for curtailing their
harmful activities must be investigated and acted upon where
appropriate. For example, with respect to hatepropaganda
activities, the justice system must work with a number of
government departments and Crown corporations including
Canada Post, Customs and Excise, and Canadian Heritage to
devise the best possible response to the traffic of hate
propaganda, including dissemination within and the
importation of materials into Canada, as well as the
exportation of materials outside of Canada.<326> In learning
more about the organization, structures and activities of
these groups, other forces may be involved in the attempt to
curb their impact on Canadian society.

Sorne information about hate groups is known. The study
conducted for Solicitor General Canada,<327> for example,
identifies what the author believes to be the major hate
groups operating in Canada, and indicates aspects of their
leadership and their organizational goals. This report
suggests that two aspects of groups are important to their
continuation and success: a capable, charismatic leader, and
links with other like-minded organizations. Concerning
goals, Theriault asserts that the white-supremacist movement
is not dominated by a single organization but is "more of a
network of hate groups."<328> What these groups ultimately
do is "use racism in order to gain support for their
political program....[They] are political opportunists that
will use all available means in order to gain support and
recruits."<329> Their political agenda is summed up as "the
ultimate conclusion of their actions remains the
establishment of a society totally dominated by the white
race to fulfil its historical biological destiny."<330>

Other knowledge about these groups would also seem to be
important. For example, there is anecdotal evidence that
these groups are actively recruiting youths at schools
across the country and disseminating hate messages through
hate music,33' but the more specific methodologies they
employ and the success of these efforts are not known, nor
is their overall recruitment strategy. It would seem that
this kind of knowledge is essential to counteract the long-
term existence and operation of these groups in Canada.

Research to acquire empirical knowledge about the
organization, structure, and activities of these groups
would assist greatly in the development of an action plan
for combatting their activities and their organizational
strength. With such knowledge, the justice system in
cooperation with the kinds of agencies mentioned above,
would be in a much stronger position to address the
existence and activities of hate groups in Canada.

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