The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-06

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-06
Last-Modified: 1997/01/23
Source: Department of Justice Canada

The advantage of this proposal is that, by having this
uncommon remedy available, the criminal law would be seen to
strongly denounce such violence. It also would be able to
provide a partial monetary remedy to the victim of hate-
motivated violence.

The disadvantage, however, of this option is that an
overbroad use of this remedy may fall afoul of the
constitutional requirement that what must be legislated is
something that is in pith and substance criminal law, not
civil law. Perhaps a punitive damages provision tied to the
sentencing process in relation to some, not all,
hatemotivated crimes and structured to produce the exercise
of restraint in its application would satisfy this concern.
A further disadvantage is that this would create an
inconsistency in approach between hate-motivated violence
and other kinds of violence or hatred. For example, why
should punitive damages be imposed for hate-motivated
violence but not for the crimes of sexual assault or wilful
promotion of hatred?

     Option 15. Consideration should be given to the
     creation of a crime of violating a person's
     constitutional rights.

This option would create a crime of violating a person's
constitutional rights. This option is modelled after
American federal civil rights law, whereby a person acting
under color of law who is prosecuted under state criminal
law and acquitted may be prosecuted again under this federal
law for violation of the victim's federal civil rights. The
most topical example of this federal legislation was the
recent federal trial of the police officers who beat Rodney
King in Los Angeles, California.<249>

The advantage of this proposal would be to have the Criminal
Code expressly protect the rights and freedoms set out in
the Charter from the abusive exercise of authority by
government agents.

However, there are serious disadvantages to this option.
Unlike in the United States, the creation of criminal law in
Canada falls exclusively within the jurisdiction of the
federal government, and so the use of a federal prosecution
in situations where a "state" criminal prosecution has
previously failed does not arise in Canada. There are also
other problems with adopting the American approach here,
which have been mentioned earlier. How broad in scope would
such a crime be -- arguably it should catch only violent
conduct? How effective would the crime be, given the need
torespect protection against double jeopardy? Also, should
cases akin to the Rodney King case arise in Canada -- where
peace officers are accused of using unreasonable force
against a member of a minority group -- existing criminal
law provisions can be used to prosecute the officers.
Arguably, if the aim is to address hate-motivated violence,
the most effective way to do so is by way of criminal
legislation that aims at such violence. Therefore, it is
suggested that this aspect of reform merely be given

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