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Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-04

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-04
Last-Modified: 1997/01/23
Source: Department of Justice Canada

This gives rise to another issue: Should a crime of hate-
motivated violence cover not only acts of violence, but also
hate-motivated omissions that cause harm? For example,
consider the case of a doctor who is under a duty of care to
care for his or her patient. If the doctor were to fail to
provide the requisite duty of care by reason of hatred of
the patient's actual or perceived race, colour, religion,
ethnic origin, et cetera, should not this conduct be caught
by a crime of hate-motivated violence? The advantage of this
approach is that it would ensure that the criminal law
comprehensively addresses hate-motivated violence of all
kinds. However, the disadvantage is that such cases (if they
ever occur) would be rare indeed, and that it would be more
useful to have the law concentrate on the conduct that is
targeted by state laws, courts, and legal commentators when
discussing hate-motivated violence -- acts of violence.

The use of broad terminology has other disadvantages. A
broadly defined crime or crimes of hate-motivated violence,
without more clarity, could stretch the bounds of credulity.
As Chief Justice Rehnquist stated in Wisconsin v. Mitchell
when discussing the Wisconsin hate crimes statute, "[t]o
stay within the realm of rationality, we must surely put to
one side minor misdemeanour offenses covered by the statute,
such as negligent operation of a motor vehicle . . . for it
is difficult, if not impossible,

to conceive of a situation where such offenses would be
racially motivated."<233> And this leads to the most serious
disadvantage of this approach. The more broadly defined a
crime or crimes of hate-motivated violence, the more it is
arguable that the unity and cohesion of the present Code are
lost because what is being created, in effect, is a separate
parallel criminal code relating to bias-motivated conduct. A
largescale duplication of many of the crimes set out in the
present Code would result, for the sole purpose of
comprehensively addressing hate-motivated violence. In this
sense, it could be said that the pursuit of general
principle in relation to hate-motivated crimes leads to an
ultimate absurdity.

     Option 8. As regards the crime of murder, present Code,
     section 231 should be amended to provide that where a
     person murders another by reason of hatred of the
     victim's actual or perceived race, religion, ethnic
     origin, et cetera, that murder is first-degree murder.

This option would address the issue of hate-motivated
murder, and as such, would have the benefit of denouncing
the most serious kind of hate-motivated conduct. Why is this
needed? A crime of hate-motivated violence that raises the
penalty for basic crimes when they are hate-motivated is
unsuitable in relation to the crime of murder, because
murder has a mandatory sentence of life imprisonment.<234>
Where the mandatory sentence is that of life imprisonment,
how can one increase the sentence? Life is life.

However, a different option for reform could be made
regarding the crime of murder. Section 742 of the Code sets
out the punishment on conviction for the crimes, among
others, of first-degree or second-degree murder. A person
who is convicted of first-degree murder and sentenced to
life imprisonment is generally not eligible for parole until
he or she has served 25 years of the sentence. (Code,
section 745 allows a person convicted of first-degree murder
who has served at least 15 years of his or her sentence to
apply to the Chief Justice of the appropriate province for a
reduction in the number of years of imprisonment without
parole.) Generally, for those convicted of second-degree
murder, the eligibility for parole arises after the prisoner
has served at least ten years of his or her sentence.
Section 23 l sets out when murder is to be treated as first-
degree murder instead of second-degree murder. Basically,
first degree murder is planned and deliberate murder,
although there are exceptions to this rule. For example,
when the victim is a police officer or when the death of a
person is caused while the accused was committing or
attempting to commit a sexual assault, first-degree murder
is committed.<235> To address the issue of hatemotivated
murders, this option proposes that where a victim was
murdered because of hatred of the victim's race, religion,
et cetera, that murder should be treated as firstdegree
murder, and the offender therefore the murderer should not
be eligible for parole until 25 years of sentence have been

The disadvantage of this option is that, as argued in the
previous option, it may be viewed as-a means of fracturing
the unity and cohesion of the present Code; although, given
the limited nature of this option, this is unlikely.

Option 9. Incitement to commit hate-motivated violence
should be caught by the criminal law.

This option proposes that a person who incites someone to
commit hatemotivated violence, although not the perpetrator
of the actual act, should be caught by the criminal law.
However, there would be no need to create a specific crime
to this effect because, by the operation of the present
criminal law, generally a person who incites such violence
would be subject to criminal liability.<237> Under present
law, a person who counsels another to be a party to a crime
is also a party to the committed crime and a person who
counsels another to commit a crime that is not committed is
also liable to be punished.<238> For example, a person who
incites another person to commit murder is a party to that
crime and is liable to the same criminal penalty. Similarly,
a person who incites another to commit acts of hate-
motivated violence would be caught by the same provisions.

The advantage of this option is that it would treat all
those involved in the commission of hate-motivated
crimes_whether it be the person who committed the act, or
the person who incited, aided or counselled another to
commit such crime_as being subject to criminal liability. To
do otherwise would carve out an exception to this crime that
does not exist in relation to all other crimes, and which
does not appear justified in this context.

There does not appear to be a disadvantage to this option,
assuming that there is agreement that a specific legislation
to combat bias-motivated conduct should be created.

     Option 10. The maximum penalty for committing a crime
     or crimes of hate-motivated behaviour preferably should
     be one that operates in a principled manner to increase
     the penalty, such as having the maximum penalty for
     committing a hate-motivated crime equal to one and one-
     half times that for committing the basic crime.

One of the difficulties in creating a crime or crimes of
hate-motivated violence is how to determine the penalty for
committing such a crime. For example, the ADL model
legislation, in relation to its proposed crime of
intimidation, specifies that the degree of criminal
liability should be at least one degree more serious than
that imposed for commission of the basic offence.<239> How
would this principle apply in the Canadian context? For
example, what would be the penalty range for simple assault,
now punishable by summary conviction or by indictment for a
term of imprisonment up to five years, if the assault were
hate-motivated? Would the next level of punishment be
equivalent to that of assault with a weapon or causing
bodily harm, which is punishable by indictment for a term of
imprisonment not exceeding ten years?

To avoid these difficulties, this option proposes that a
more principled attempt be made to determine the proper
scope of punishment in relation to a hate-motivated crime;
that is, that the maximum penalty for committing such a
crime should be a certain percentage greater than the
maximum penalty now given for committing the basic crime.
For example, the draft legislation suggested by the
Australian Law Reform Commission provides that the penalty
for its proposed crime of racist violence not exceed one and
one-half times the penalty prescribed as a maximum penalty
for the act under the law concerned.<240> This would help to
promote a consistent, principled sentencing approach in
relation to such crimes.

The disadvantage of this option may be that it proposes too
high a penalty for the commission of such crimes: that
instead of increasing the penalty range, a better approach
would be to allow judges to increase the penalty closer to
the maximum penalty range existing in the present law.

     Option 11. The definition of a hate-motivated crime
     should have as its mens rea requirement that of
     purposely or recklessly harming a victim or vandalizing
     property by reason of hatred of the victim's race,
     religion, ethnic origin, et cetera. Alternatively, the
     definition of a hate-motivated crime should include in
     its mens rea requirement the concept of negligence.

This option outlines what the mens rea requirement for a
crime or crimes of hate-motivated violence should be.
Assuming that the central component of the crime would be
that the attacker was motivated by hatred of a person's
actual or perceived race, religion, et cetera, it would seem
logical that the mens rea component of the crime would be
purposely or recklessly selecting the victim for attack (or
property for destruction) because of such hatred. This
requirement of purpose or recklessness would be consistent
with the concept that the perpetrator of such violence must
be subjectively aware of what he or she was doing.<241> This
"purpose" or "recklessness" requirement would exclude a
definition of the crime that included the fault component of

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