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Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-07

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-07
Last-Modified: 1997/01/23
Source: Department of Justice Canada


196. See pp. 10-14 of this paper.

197. Indeed, as noted earlier, in Australia, the National
Inquiry into Racist Violence called for the development of
"uniform national procedures" for the collection of such
data. Human Rights and Equal Opportunity Commission,
National Inquiry into Racist Violence, Racist Violence
(Canberra: Australian Government Publishing Service, 1991)
p. 314 [hereinafter Racist Violence]. As well, it should be
noted that a private member's bill, Bill C-45, Bias
Incidents Statistics Act, 3d Sess., 34th Parl., 1991-92-93
(Ist reading 8 June, 1993) was introduced into the Canadian
House of Commons that would have police forces across the
country collect statistics that would indicate the number of
incidents investigated by them that were wholly or partly
motivated by bias against those sections of the public
identifiable on the basis of colour, race, religion, sexual
orientation or ethnic origin.

198. See, e.g., the criticisms of the present law set out at
pp. 26-28 of this paper.

199. See pp. 38-39 of this paper.

200. Law Reform Commission of Canada, Report on Recodifying
Criminal Law (Revised and Enlarged Edition of Report 30)
[Report 31] (Ottawa: Law Reform Commission of Canada, 1987)
[hereinafter Recodifying Criminal Law].

201. Ibid., p. 71. This list of aggravating factors was to
apply, where appropriate, to crimes against integrity such
as assault, crimes against psychological integrity such as
threatening, crimes against personal liberty such as
confinement, and crimes causing danger such as endangering.

202. For an example in American law of the use of racial
motivation as an aggravating factor in sentencing, see
Illinois Annotated Statutes, c. 38 [p] 1005-5-3.2 (10)
(Smith Hurd, 1992 P.P.). It provides the following as an
aggravating factor that shall be accorded weight in favour
of imposing a term of imprisonment or may be considered by
the court in imposing a more severe sentence:

     [T]he defendant committed the offense against a person
     or a person's property because of such person's race,
     color, creed, religion, ancestry, gender, sexual
     orientation, physical or mental disability, or national
     origin. For the purposes of this Section, "sexual
     orientation" means heterosexuality, homosexuality, or
     bisexuality ....

203. See pp. 26-28 of this paper.

204. P. Finn, "Bias Crime: Difficult to Define, Difficult to
Prosecute" (Summer, 1988) 3 Criminal Justice, No. 2, 19, p.
20. Another legal commentator, focussing on the harm done to
society, states: "The harm which arises from bias crimes is
distinct because an entire disfavoured and discrete group of
people is assaulted whenever an individual is assaulted as a
result of an immutable characteristic. Communal harmony
within society in general is totally disrupted by a single
act of arbitrary hatred because of the distrust and fear
that is ignited. What is needed is public recognition of
these distinct and serious harms, to be achieved through
separate state criminal statutes that make an official
statement that bias crimes will not be tolerated." (T. K.
Hernandez, "Bias Crimes: Unconscious Racism in the
Prosecution of 'Racially Motivated Violence"' (1990) 99 Yale
L.J:, p. 848.)

205. National Institute against Prejudice and Violence, The
Ethnoviolence Project Institute Report No. 1 (Baltimore:
1986), quoted in State of New York, Governor's Task Force on
Bias-Related Violence [Final Report] (New York: Division of
Human Rights, 1988) pp. 4-5 [hereinafter Governor 's Task
Force on Bias-Related Violence].

206. Governor's Task Force on Bias-Related Violence, supra,
p. 5.

207. E. Kallen, "Never Again: Target Group Responses to the
Debate Concerning Anti-Hate Propaganda Legislation" (1991)
11 Windsor Y.B. Access Just, p. 58.

208. International Convention on the Elimination of Allforms
of Racial Discrimination, [1970] Can. T.S., No. 28, Art.

209. R. v. Keegstra, [1990] 3 S.C.R. 697, 61 C.C.C.(3d) 1.

210 Ibid. Dickson C.J.C. stated p. 754 (S.C.R.):

     C.E.R.D. and L 3. C.P.R. demonstrate that the
     prohibition of hate-promoting expression is to be not
     only compatible with a signatory nation's guarantee of
     human rights, but is as well an obligatory aspect of
     this guarantee.... [C]anada, along with other members
     of the international community, has indicated a
     commitment to prohibiting hate propaganda, and in my
     opinion this court must have regard to that commitment
     in investigating the nature of the government objective
     behind section 319(2) of the Criminal Code. That the
     international community has collectively acted to
     condemn hate propaganda, and to oblige state parties to
     CE.RD. and I.C.C.P.R to prohibit such expression, thus
     emphasizes the importance of the objective behind
     section 319(2) and the principles of equality and the
     inherent dignity of all persons that infuse both
     international human rights and the Charter.

For a discussion of the use of international human rights
law in Supreme Court Charter cases, see A. F. Bayefsky,
International Human Rights Law: Use in Canadian Charter of
Rights and Freedoms Litigation (Markham, Ont.: Butterworths,
1992) pp. 74-100. Anotherpossible interpretation ofthese
international human rights documents is that which sees
these international commitments as creating international
offences which are part of Canadian law by virtue of the
Charter, whether or not Parliament decides to create
legislation to that effect. See, in the context of war
crimes, D. Matas, "The Charter and Racism", a copy of which
is on file with the author, originally published in (1990) 2
Const. Forum p. 82.

211. For a discussion of recent federal and provincial
initiatives, see Multiculturalism and Citizenship Canada,
International Convention on the Elimination of All Forms of
Racial Discrimination [Eleventh Report of Canada, covering
the period January, 1990 to December, 1991] (Ottawa:
Minister of Supply and Services Canada, 1992).

212. Canadian Multiculturalism Act, R.S.C. 1985 (4th Supp.),
c. 24.

213. For example, Australia, like Canada, has a
parliamentary democracy, has in recent years conducted
inquiries into its treatment of aboriginal people, and has a
national multiculturalism policy.

214. See The Law Reform Commission, Multiculturalism and the
Law [Report No 57] (Sydney, Australia: The Law Reform
Commission, 1992) p. 153, 155; Racist Yiolence, supra,
footnote 2, pp. 296-298.

215. Law Reform Commission of Canada, Our Criminal Law
[Report 3] (Ottawa: Minister of Supply and Services Canada,
1976) pp. 5-6.

216. RA.V. v. City of St Paul, 505 U.S.--, 120 L Ed 2d p.
305 (1992).

217 Keegstra, supra, footnote 14.

218. Wisconsin v. Mitchell, decided in the United States
Supreme Court, on June 11, 1993, No. 92-215, 61 LW p. 4575

219. See M. L. Fleischauer, "Teeth for a Paper Tiger: A
Proposal to Add Enforceability to Florida's Hate Crimes Act"
(1990) 17 Fla St. U. L. Rev., p. 697; Note, "Combatting
Racial Violence: A Legislative Proposal" (1988) 101 Harv. L.
Rev., p. 1270.

220. Our Criminal Law, supra, footnote 20, pp. 19-28.

221. Ibid., pp. 33-34. The Commission applied these tests of
criminality consistently in determining whether or not
crimes should be reformed or abolished. For example, in
1984, the Commission applied these tests to conclude that
the crime of defamatory libel should be abolished, primarily
because there already existed an alternative remedy to deal
with the problem_the civil suit of defamation. Law Reform
Commission of Canada, Defamatory Libel [Working Paper 35]
(Ottawa: Ministry of Supply and Services Canada, 1984) pp.
45-60. As well, the Commission applied the tests to
determine the scope of crimes against the foetus. Law Reform
Commission of Canada, Crimes Against the Foetus [Working
Paper 58] (Ottawa: Law Reform Commission of Canada, 1989)
pp. 29-47.

222. See Code ss. 271-273

223. See pp. 19-22 of this paper

224. Recodifying Criminal Law, supra, footnote 5, pp. 67-68.

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