The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-003-01

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-003-01
Last-Modified: 1997/01/20
Source: Department of Justice Canada

58. R. v. Ingram and Grimsdale (1977), 35 C.C.C. (2d) 376 (Ont. C.A.).

59. Ibid., p. 377.

60. Ibid., p. 379

61. R. v. Lelas (1990), 41 O.A.C. 73.

62. Ibid., p. 77.

63. Ibid., p. 77.

64. R. v. Simms (1990), 66 C.C.C. (3d) 599 (Alta. C.A.).

65. Ibid., pp. 507-508. Harradence J.A., who would have
imposed a lesser sentence than the other judges, stated
nonetheless that the accused were motivated to attend at the
home of the victim by the philosophy espoused by the white
supremacist groups with which the accused were associated
and that that philosophy not only condoned but extolled
violence against those perceived to be opposed to that
philosophy. Such conduct, in his view, had to be sternly
denounced by the courts. Ibid., pp. 506-507.

For a brief discussion of present protections offered by the
Criminal Code in combatting racially motivated violence, see
T. Cohen, Race Relations and the Law ([Canadian Jewish
Congress], 1988), pp. 122-124.

66. See pp. 45-46 of this paper. [Transcription Note: Section 5.2]

67. R. v. Gardiner, [1982] 2 S.C.R. 368, 68 C.C.C. (2d) 577.

68. Ibid., per Dickson J. (as he then was), p. 414 (S.C.R.).

69 See, e.g., R. v. Wilcox (1988), 53 C.C.C. (3d)
(N.W.T.S.Ct.) (hearsay evidence of damage estimates
allowed); R. v. Boyd (1983), 8 C.C.C.(3d) 153 (B.C.C.A) (at
a dangerous offender proceeding, there was no need to prove
that the accused's statements to psychiatrists were voluntarily made).

70. See the decision of Anderson J.A., dissenting in part,
in Boyd, ibid., pp. 158-159.

71. Canada, House of Commons, Report of the Special
Committee on Visible Minorities in Canadian Society,
Equality Now! (Ottawa: 1985) (Chair: B. Daudlin).

72. Ibid, pp. 73-75. It was also pointed out there that the
Ontario Attorney General had issued guidelines to crown
attorneys to assist them in prosecuting criminal c fences
with a racial component. The Comrnittee suggested that all
attorneys general should issue similar guidelines to their
crown attorneys so that racially motivated crimes were
effectively dealt with, which could include community
service, compensation and restitution to the visible
minority community or individual.

73. Canada, Response of the Government of Canada to Equality
Now! (Ottawa: Ministry of Supply and Services Canada, 1985),
p. 17. The concept of a consecutive sentence being imposed
in the case of a racially motivated crime was also rejected
by the Canadian Bar Association's Special Committee on
Racial and Religious Hatred, which supported instead
referring the issue of guidelines for sentencing to the
Sentencing Commission. See Special Committee on Racial and
Religious Hatred, Hatred and the Law (Winnipeg: Canadian Bar
Association, 1985), p.  14-15.

74. Report of the Canadian Sentencing Commission, Sentencing
Reform: A Canadian Approach (Ottawa: Minister of Supply and
Services Canada, 1987).

75. Ibid., p. 320.

76. The Commission, however, did point out that the list was
not exhaustive and that other circumstances may be invoked
in justifying a departure from the guidelines (although it
added that its primary list was based on extensive research
into the jurisprudence). Ibid, pp. 320-321. Consistent with
the fact that the list was not exhaustive, the Commission
added that "the personal circumstances or characteristics of
an offender should be considered as an aggravating factor
only when they relate directly to the commission of the
offence". Ibid., p. 322. If an accused commiKed a crime by
reason of hateful motivation, it appears that that would
amount to a personal characteristic of an offender that
should be considered as an aggravating factor. The
guidelines and the list of aggravating factors were not
intended to be enacted as iegislation. Instead, the proposal
was that they be tabled in Parliament by the Minister of
Justice, where, unless objected to by means of a negative
resolution of the House of Commons, they would come into
force after a short passage of time. Ibid., pp. 305-309.

77. These proposals are outlined in a memorandum to the
author from Mr. Ian Kagedan, Director of Government
Relations, B'nai Brith Canada, dated July 7, 1993.

78. Canada, Department of Justice, National Symposium on
Women, Law and the Administration of Justice (1991 :
Vancouver, B.C.), vol. 2, Recommendations om the Symposium
(Ottawa: Minister of Supply and Services  Canada, 1992), p. 150.

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