The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-01

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-01
Last-Modified: 1997/01/23
Source: Department of Justice Canada

     Option 5. The definitions of certain crimes in the
     present Code, such as mischief and assault, should be
     amended to provide specifically for an automatic
     penalty enhancement where the crime is committed by
     reason of a person's hatred of another's actual or
     perceived race, religion, ethnic origin, et cetera.

This option proposes that statutory changes to existing
crimes could be made whereby, if the commission of certain
crimes was hate-motivated, the maximum penalty range of
those specific crimes would be automatically increased. The
Code currently does this in relation to some other crimes.
For example, in the context of impaired driving and related
offences, Code, section 255 provides that a person who is
convicted of impaired driving, on proof of a previous
conviction for the same offence, receives an automatic
increase in punishment.

The benefit of this approach would be that the use of
hateful motivation to increase the penalty for committing a
crime would be carefully structured to apply only to those
crimes most associated with acts of hate-motivated violence.
It would appear to have a denunciatory and educative impact
equal to the use of a broadly applied aggravating factor_in
fact, it could be argued that, as part of the definition of
the crime (in that it would be placed in a subsection
relating to the range of punishment for committing the
crime), it would have a most effective denunciatory and
educative impact.

However, there are disadvantages to this approach. It
presumes that only a limited number of crimes would be so
changed (otherwise a majority of the definitions of the
crimes in the present Code would have to be similarly
changed, which would be most awkward in terms of drafting).
Thus, this approach would be narrow in scope, especially if
it were meant to replace the concept of the use of an
aggravating factor having broad application. There is also
the difficulty of determining which crimes to so alter. On
what basis would some crimes be chosen and others not?
Finally, like options 3 and 4, this approach assumes that
hate-motivated violence is a just a more serious instance of
crimes already set out in the Code, rather than something
especially harmful in its own right.

7.4 Creating Specific Hate-Motivated Crimes

7.4.1 Arguments for the Creation of Hate Crimes

The fundamental issue for Canadian criminal law is whether
or not there should be a specific crime or crimes of hate-
motivated violence. The obvious question that arises is: Why
create such crimes when the criminal law already catches
this conduct? For example, hate-motivated vandalism is still
vandalism, hate-motivated assault is still assault, and hate-
motivated murder is still murder. Would not the creation of
a crime of hate-motivated violence, therefore, be

Let us start at the beginning. What is the difference
between a crime of hatemotivated violence and any other
crime of violence? Is the harm the same? Or is the harm

The answer given by many legal commentators is that hate-
motivated violence causes greater harm both to the victim
and to society than does regular crime. For example,
American legal commentator Peter Finn states:

     Many criminal justice personnel view hate violence as
     just another crime_no more serious or worthy of special
     attention than any other comparable crime. According to
     this view, murder is murder, and assault is assault,
     regardless of whether the offender was motivated by
     hatred for a class of people, by a desperate need to
     get cash to feed a drug habit, or by an outburst of
     jealous rage. However, many criminal justice personnel
     and community leaders believe that crimes motivated by
     bias have a far more pervasive impact than comparable
     crimes that do not involve prejudice because they are
     intended to intimidate an entire group. The fear they
     generate can therefore victimize a whole class of
     people. Furthermore, our country is founded on
     principles of equality, freedom of association, and
     individual liberty; as such, bias crime tears at the
     very fabric of our society.<204>

A description of the effect that hate-motivated crime has on
its victims also shows the insidious nature of such attacks.
In its analysis of the impact of bias crimes, the New York
State Governor's Task Force on Bias-Related Violence quoted
from a study conducted by the National Institute Against
Prejudice and Violence (NIAPV) on bias violence victim
experiences in nine American cities, which stated, in part,
that many individuals and families became isolated,
withdrawn and paranoid out of fear, others were overcome by
anger and revenge fantasies, others fought to stymie
feelings of hatred for their attackers, and others
experienced sadness and a feeling of powerlessness.<205>

As a result of that study and the testimony received before
it, the Task Force found:

     The bias crime victimization experience is especially
     traumatic for victims and their loved ones. The
     physical injury, property damage and emotional trauma
     that can accompany any victimization are complicated
     for bias crime victims by anger, fear and a sense of
     isolation. Victims who are non-English speaking may
     suffer additional complications and distress. This
     emotional stress may occur repeatedly and severely
     restrict the individual's ability to lead a free and
     rewarding life.<206>

Arguably, the effect of hate-motivated violence on victims
in Canada would be the same.

In a different but analogous context, that of the
publication of hate propaganda, recent studies have analyzed
the impact that the publication of hate propaganda has had
on Jewish Canadians. From 1987 to 1989, research was carried
out on a sample of 165 Jewish respondents living in Metro
Toronto to assess the impact on them of the Zundel and
Keegstra trials. The former accused was charged with the
crime of publication of false news (now Code, section 181);
the latter was charged with the crime of wilfully promoting
hatred (now Code, section 319(2)). Among the results was the

     Almost 80 percent of respondents reported that they
     experienced suffering/psychological harm as a result of
     following the trials. Qualitative responses to these
     questions revealed that Jewish respondents felt ...
     silenced ... targeted and exposed ... insecure and
     fearful ... angry and frustrated deep, gut-wrenching
     agony and ... too painful to say. Further, 89 percent
     of respondents expressed the belief that hate
     propagandizing activities have caused harm and
     suffering ... psychic harm and trauma ... mental
     anguish ... to Jews as a people.<207>

If hate propaganda alone produces such harm, would the harm
be any less if a person were the victim of a hate-motivated
attack? This seems extremely unlikely.

The particularly heinous nature of hate-motivated violence,
therfore, justifies treating this form of violence
differently from other forms of violence. This rationale is
the basis for using hateful motivation as an aggravating
factor to enhance the penalty in relation to general crimes
such as mischief, assault or manslaughter. Equally, though,
the rationale also justifies considering instances of hate-
motivated violence as crimes in their own right.

A strong argument put forward for the creation of specific
criminal legislation directed at bias-motivated conduct is
that such action is required by international human rights
treaties. In this regard, Canada is a signatory to both the
International Convention on Civil and Political Rights
(ICCPR) and the International Convention on the Elimination
of All Forms of Racial Discrimination (CERD). Specifically,
Article 4 of CERD provides, in part, that State Parties,
with due regard to the principles embodied in the Universal
Declaration of Human Rights:

     (a) Shall declare an offence punishable by law all
     dissemination of ideas based on racial superiority or
     hatred, incitement to racial discrimination, as well as
     all acts of violence or incitement to such acts against
     any race or group of persons of another colour or
     ethnic origin, and also the provision of any assistance
     to racist activities, including the financing thereof
     (emphasis added)....<208>

What is the effect of these international human rights
documents in Canadian criminal law? The Supreme Court of
Canada will rely on Canada's international legal commitments
to assist in determining whether or not criminal law
legislation is consistent with, or contravenes, the Charter.
For example, in R. v. Keegstra,<209> the majority of the
Supreme Court used CERD and ICCPR to show that Parliament
had a legitimate objective in enacting the crime of wilfully
promoting hatred (Code, section 319[2], one of the hate
propaganda crimes), thus using those international human
rights instruments to help uphold the legitimacy of that
criminal legislation.<210>

In other contexts, the federal government has taken action
on several fronts to better comply with its obligations
under CERD.<211>At the federal level specifically, the
Canadian Multiculturalism Act, passed in 1988, sets out
Canada's multiculturalism policy. The preamble to the Act
states that Canada is a party to CERD and ICCPR, and the
purposes set out there are clearly informed in part by
Canada's desire to adhere to its treaty commitments.<212>

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