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Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-001-01

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-001-01
Last-Modified: 1997/01/19
Source: Department of Justice Canada


In January 1993, seven Montreal-area synagogues were defaced
with swastikas and a Nazi slogan. The attacks, which
appeared to be orchestrated, were described as the worst
acts of anti-Semitic vandalism in Quebec in nearly three
years.' In June 1993, a Tamil who had left Sri Lanka to
escape the ethnic strife there was viciously attacked by
three men, whom he had never seen before, at the end of his
work shift at a Toronto restaurant. Police said the attack
was racially motivated. A 19-year-old skinhead linked to
white supremacist organizations was subsequently charged
with aggravated assault and denied bail.<2>

These incidents are vivid illustrations of what is often
called racist or racially motivated violence. However,
because of the problems inherent in the concept of race,<3>
a more accurate definition is needed. Thus, terms such as
hate-motivated violence, hatemotivated conduct, hate crimes,
bias-motivated violence, or bias-motivated conduct, are
generally used in this paper instead. This is, however,
subject to one caveat: where reference is made to material
that has used terms such as racist violence or racially
motivated violence, those terms generally will be used in
order to be consistent with the original author's

What is meant by the term "hate-motivated violence"? The
term has been broadly defined. For example, the Australian
Human Rights and Equal Opportunity Commission defined the
term "racist violence" to include not only physical attacks
upon a person but also verbal,and nonverbal intimidation,
harassment and incitement to racial hatred. This would
include intimidating phone calls as well as threatening
insults and gestures.<4> Robin Oakley, in a consultant's
report to the Council of Europe on racial violence and
harassment, points out that while the popular image of
racial violence involves acts of a serious criminal nature,
such as murder or serious wounding of victims, nonetheless
minor assaults and "non-physical" actions such as jostling,
spitting, verbal and written abuse_unprovoked and repeated_
constitute racial harassment that more forcefully
contributes to the "everyday racism" that affects victims'
lives.<5> Given this context, the term "hate-motivated
violence" at the very least covers conduct already caught by
the present criminal law that is motivated by hatred of a
person's actual or perceived race, colour, religion, ethnic
origin, et cetera. This would cover serious acts of violence
against people or property, or threats of such violence. In
this regard, many of the acts of harassment referred to
above also would be caught by the present criminal law.
Minor assaults, such as spitting on someone, are nonetheless
assaults. Writing racist graffiti on someone's property
without their consent would constitute the crime of mischief
(commonly called vandalism). However, the extent to which
the criminal law should be used to curtail racist activity,
including acts of harassment, that is not already caught by
the present criminal law, is not addressed by this paper. In
particular, the following discussion does not address
whether a crime of racist insult should be created. Nor does
it address whether racist organizations should be
criminalized. As well, it does not recommend changes to what
are commonly known in Canadian criminal law as the crimes of
hate propaganda. These issues involve the criminalization of
activities, which involves carefully balancing the
guarantees of freedom of expression and freedom of
association found in the Canadian Charter of Rights and
Freedoms<6> with the need to uphold the right to equality
and to protect human dignity. Therefore, these issues are
best left to be examined by future research papers.

There is one other limitation on this study. It addresses
criminal law solutions to the problem of hate-motivated
violence. Hence, it does not address noncriminal remedies to
address the problem, such as civil actions for damages, or
remedies that could be provided under various human rights

Why is this an issue of sufficient importance to warrant
study? First, there is rising concern about hate group
activity in Canada. For example, the League for Human Rights
of B'nai Brith Canada has for several years published an
annual audit of anti-Semitic incidents that are reported to
it. Table One of the 1992 Audit of Anti-Semitic Incidents
shows a general increase in such incidents over the years,
from 63 in 1982 to 196 in 1992.7 The 1992 Audit expressed
concern over the bolder, more open activities of the far
right, and pointed out that, while the League has had to
react in recent years mostly to hate propaganda and
recruitment efforts by these groups rather than to more
violent forms of anti-Semitic activity, the more extremist
groups remain active and pose a threat of violence, and
described major incidents of synagogue desecration.<8>

Attacks against homosexuals have been reported by others.
For example, in Montreal, incidents of "gay-bashing"
reported by the press include not only assaults but, in
some cases, the killing of homosexuals.<9> One Canadian
legal commentator has recently stated that "[i]t is not
hyperbole to assert that queer-bashing is a social
phenomenon of epidemic proportions".<10> As well, the police
in some cities, including Ottawa and Toronto, have recently
set up special units to investigate hate-motivated crimes."

Secondly, Canada is a multicultural, pluralistic nation. The
demographic reality is that the proportion of immigrants
living in Canada who were born in Asia as opposed to Europe
has increased over the years,<12> and this trend apparently
will intensify in the early part of the 21st century.<13>
Moreover, Canada has taken constitutional and other legal
steps to recognize and protect this reality. For example,
section 27 of the Charter provides that the "Charter
shall be interpreted in a manner consistent with the
preservation and enhancement of the multicultural heritage of 
Canadians"; and in 1988, the federal government passed the

Canadian Multiculturalism Act, which sets out the policy of
the Canadian government in recognizing and promoting the
multicultural heritage of Canada.<14> In the realm of
criminal law, the Criminal Code contains crimes of hate
propaganda, designed to protect certain "identifiable groups" from 
the harm caused by hate propaganda.<15> And yet, there is no other 
provision in the Code that specifically denounces hate-motivated 
conduct of a more immediate violent nature.

Given this context, hate-motivated violence should not be
viewed as a marginal problem, but rather as a matter of
serious concern that must be addressed in public policy.

What do we know about recent incidents of hate-motivated
violence in Canada? How does the compiling of data in
relation to such violence compare with that in other
jurisdictions? What is known about those who commit such
violence? How is our present criminal law attempting to
combat such violence, and how has this attempt been received
by interested parties? Indeed, how have other jurisdictions
attempted to combat bias-motivated conduct? Are they
ignoring this issue? Or are they taking measures_by enacting
legislation or otherwise_to prevent such violence?

Whom should Parliament try to protect in combatting hate-
motivated violence? In criminal law, the concept of race,
along with other criteria, has been used in the-hate
propaganda legislation that is primarily intended to prevent
the promotion of hatred against members of an "identifiable
group". But is the concept of race a useful one? Should
Parliament protect from such violence members of the same
identifiable groups that are protected by the present hate
propaganda legislation? Or should the identifying factors
for protecting persons from hate-motivated violence be
expanded? For example, should "sexual orientation" be added
as an identifying factor?

The Rodney King incident in the United States serves as an
example of the federal legal mechanisms that are available
in that country to prosecute persons, including police
officers, for violations of a person's civil rights where
prosecutions pursuant to state penal laws have failed. What
are the implications of the Rodney King incident for Canada?
For example, would it be appropriate to provide a remedy in
criminal law for the violation of a person's constitutional
rights in Canada?

Finally, what options are available for combatting hate-
motivated violence? For example, should the criminal law do
nothing to respond to such violence? Should a federal hate
crimes statistics statute be enacted that would result in
the collection of hate crimes statistics nationally? Should
the issue be addressed solely by means of sentencing
procedures and, if so, how should these be constructed? Is
it justifiable to treat hate-motivated violence as a
separate crime from other, more general crimes, such as
assault? If a crime (or crimes) of hate-motivated violence
were to be created, how should such a crime be defined? For
example, should it be restricted to only cover some criminal
conduct or, generally, all criminal conduct? What should its
mens rea requirement be? And should the awarding of punitive
damages in relation to such crimes be permitted if possible?
This paper will attempt to provide informed insight into
these issues.

[Footnotes available in hmv-001-02]

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