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Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-03

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-03
Last-Modified: 1997/01/23
Source: Department of Justice Canada

Are these arguments persuasive? First, as regards
deterrence: The existence of a criminal law prohibiting hate-
motivated violence serves to denounce and condemn such
conduct, so that, while it may not dissuade those who are
motivated by hatred of a person's race, colour, religion,
ethnic origin, et cetera, from committing violence (any more
than the law prohibiting murder would dissuade someone who
kills in a rage), it does serve to reaffirm the fundamental
values of human dignity and equality that are particularly
attacked by such conduct. And, by such reaffirmation, the
criminal law serves to educate the public that such acts are
intolerable. Secondly, as regards the view that these crimes
might create more prejudice on the part of the majority in
society against minorities: One can argue that, given
Canada's commitment to a multicultural, pluralistic society,
such laws would be seen as a complement to the crimes of
hate propaganda, which do not appear to have created
resentment towards minorities by the majority population.
Thirdly, although it is possible that such crimes may be
used to prosecute members of minority groups who commit
crimes of hate-motivated violence, in principle there is
nothing wrong with prosecuting under such crimes anyone who
commits a hate crime against another. In such a case, the
minority community need not see the prosecution as a threat
to itself. Fourthly, as regards difficulties in defining a
hate crimes law: There are indeed important issues to be
resolved in determining how to define such a law, but these
issues are not an absolute bar to creating a definition.
Finally, as regards the issue of motivation: This would be
no more or no less a problem for the courts than that which
they now face in addressing the issue of hateful motivation
at sentence.

Thus, it is arguable that creating specific criminal
legislation to combat hatemotivated violence would satisfy
the tests of criminality set out by the Law Reform
Commission of Canada. Admittedly, opposite arguments can be
made that creating such legislation is not consistent with
the principles so set out -- that it would offend the
fundamental principle of restraint in the use of the
criminal law by creating duplicate crimes for activity
already caught by the criminal law, and that such
legislation would not significantly contribute to dealing
with the problem any more effectively than does the present
criminal law.

7.4.4 Options in Defining Hate-Motivated Crimes

Assuming that a crime (or crimes) of hate-motivated violence
should be created, how should the crime be defined? A wide
variety of options are possible.

There are two components to a crime. First, there is conduct
that is prohibited: most often, the criminal law prohibits
acts, or the doing of something. Most persons think of
crimes in this way; for example, murder or assault. Less
often, the criminal law imposes on a person a legal duty to
do something, so that a failure to act pursuant to the duty
creates criminal liability: for example, the failure of a
parent to provide necessities to his or her children (Code,
section 215) or -- although currently not law in Canada but
proposed by the Law Reform Commission of Canada -- the
failure to take reasonable steps to assist a person in
danger of death or serious harm.<224> Secondly, a fault
requirement is needed to accompany such conduct. The latter
is often referred to as the mens rea, or more accurately,
the mentes reae necessary to be proved for the finding of
guilt in relation to the crime. This fault requirement may
be a subjective one -- generally, either the person
purposely did or did not do something, or was reckless in so
doing or not doing. Recklessness means that the person,
although not intending to cause harm, foresaw the likelihood
of the harm occurring. Or, depending on how the crime is
defined, the fault requirement may be an objective one -- in
other words, the crime may catch negligent conduct. In this
case, the accused's subjective state of mind is irrelevant
in establishing the requisite mens rea. For example, in the
recent case of R. v. Hundal,<225> the Supreme Court of
Canada rejected claims that the crime of dangerous driving
set out in section 249 of the Code requires that an accused
be aware of the consequences of his or her driving, and
instead approved of an objective standard of liability as
being sufficient to establish the mens rea requirement for
the crime.

What conduct should be caught by any proposed law
prohibiting hate-motivated violence? What should the mens
rea requirement be for the crime? A number of options are

     Option 6. A specific crime of institutional or
     religious vandalism should be created. In addition,
     there should be created a crime of bias intimidation,
     which would have as part of its definition committing
     certain general crimes, such as mischief, assault, or
     threatening harm, by reason of hatred of a person's
     actual or perceived race, colour, religion, et cetera,
     and which would be more severely punished than the
     general crimes.

 This option is designed to create a crime or crimes of hate-
motivated violence largely based on the ADL model
legislation, noted earlier.<226> That model legislation
created two separate crimes: institutional vandalism (such
as vandalizing a place used for religious worship), and
intimidation. The definition of this latter crime states
that the crime should catch the penal code provision for
"criminal trespass, criminal mischief, harassment, menacing,
assault, and/or other appropriate statutorily proscribed
criminal conduct".<227> The selection of substantive crimes
for the purpose of a bias intimidation statute could be
based, to some degree, on this model legislation. For
example, it could catch hate-motivated mischief (Code,
section 430), assault (Code, section 266), assault with a
weapon or causing bodily harm (Code, section 267),
aggravated assault (section 268), and uttering threats
(Code, section 264.1).

The benefit of such legislation would be that certain kinds
of hate-motivated conduct would be treated as crimes in
their own right and hence would have the maximum possible
denunciatory and educative impact.

Those who would disagree with the creation of specific
criminal legislation to combat hate-motivated violence,
however, would argue that there are several disadvantages to
such legislation. It unnecessarily duplicates the protection
offered by the present law; it arguably may be used only in
the most certain of circumstances where hateful motivation
can be proved beyond a reasonable doubt; it may have the
unintended effect of creating resentment against minorities
in society; and it may be used against members of minority

One arguable disadvantage for those who would favour the
maximum protection of the criminal law is that creating a
criminal law that singles out only certain kinds of basic
crimes for inclusion in criminal legislation to combat
hatemotivated violence is adopting an ad hoc approach.<228>
There are many acts that can be committed in criminal law,
ranging from theft to fraud, from assault to murder. Why
should some acts of violence be covered by a criminal law
prohibiting hatemotivated violence, while others are not?

Option 7. A general crime of hate-motivated violence should
be created.

An alternative to the approach outlined in Option 6 would be
to adopt a more principled approach and create a criminal
law of hate-motivated violence that would apply, generally,
to all acts of violence. This approach would no doubt best
ensure that hate-motivated violence of whatever kind is
denounced by the criminal law.

This approach, arguably, best ensures compliance with CERD,
since that international instrument requires that a State
Party "declare an offence punishable by law . . . all acts
of violence or incitement to such acts of violence against
any race or group of persons of another colour or ethnic
origin" (emphasis added).<229> An example of this approach
is the draft law prohibiting racial violence proposed by the
Australian Law Reform Commission, which speaks of a person
who "commits or threatens to do an act of violence".<230>

And yet, one disadvantage of this approach would be that
such a definition, in itself, without more, would be too
vague. The Australian Law Reform Commission recognized the
vagueness of the term "an act of violence", stating that
"because this phrase is not precise enough in itself to
identify the relevant offences, it is essential that they be
individually identified" and attached to a schedule to the
act creating the crime.<231> Yet the use of a schedule to
aid in understanding the more precise scope of a broadly
defined crime is difficult to justify, because it appears to
detract from the principle that crimes should be defined
with reasonable clarity so that persons can understand them.
Resort to a schedule can be seen as an admission of failure:
that the crime itself is too broadly defined to be able to
inform the public with adequate clarity what conduct is

In response, however, one could argue that the Code does
recognize certain instances (e.g., firearms offences) where
the precise scope of a crime is not found exclusively in the
Code, but is fleshed out by governmental regulations.
Moreover, it should be noted that our present Code, in some
sections, does use broad terminology to define the conduct
it wishes to catch. For example, Code, section 269.1, the
crime of torture, is defined as meaning "any act or omission
by which severe pain or suffering, whether physical or
mental", is intentionally inflicted on a person for certain
purposes or for any reason based on discrimination of any
kind.<232> Arguably, there is little difference between an
"act of violence" that is hate-motivated and an "act or
omission by which severe pain or suffering" is inflicted.

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