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Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-08

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-007-08
Last-Modified: 1997/01/23
Source: Department of Justice Canada

225 R. v. Hundal, judgment rendered by the Supreme Court of
Canada March I I, 1993. It should be noted that negligent
conduct for the purposes of a criminal prosecution requires
conduct that is a marked departure from the standard of care
that a reasonable person would observe in the accused's
situation. This a higher standard of negligent behaviour
than is required for a civil action. For proposals regarding
the standard of negligence to be met in the context of the
criminal law and when negligent conduct should be caught by
the criminal law, see Recodifying Criminal Law, supra,
footnote 5, pp. 25, 56, 62, 67-68. The recent House of
Commons Report of the SubCommittee on the Recodification of
the General Part of the Criminal Code of the Standing
Committee on Justice and the Solicitor General, First
Principles: Recodifying the General Part of the Criminal
Code of Canada (Ottawa: Queen's Printer, 1993) recommended,
on p. 22, that a recodified General Part be based on the
principle that subjective fault is the usual requirement for
criminal liability and that objective fault be used with

226. See pp. 39-40 of this paper.

227. Anti-Defarnation league of B'nai Brith, ADL Law Report,
Hate Crimes Statutes. A 1991 Status Report (New York: Anti-
Defarnation League, 1992) p. 4 [hereinafter Anti-Defarnation

228. American states vary in their description of the basic
criminal conduct that ground their hate crimes statutes. The
present Illinois hate crime statute singles out the crimes
of assault, battery, aggravated assault, misdemeanour theft,
criminal trespass to residence, misdemeanour criminal damage
to property, criminal trespass to vehicle, criminal trespass
to real property or mob action. Ill. Ann. Stat., Ch. 38,
12-7.1 (Smith Hurd, 1992 P.P.). Michigan's ethnic
intimidation statute catches a person who "[c]auses physical
contact with another person" or who "[d]amages, destroys, or
defaces any real or personal property of another person", or
who threatens to do so. Mich. Ann. Stat.,  28.344(2)
(Callaghan, 1990).

229. International Convention on the Elimination of All
Forms of Racial Discrimination, Article 4(a), supra,
footnote 13.

230. The Law Reform Commission, supra, footnote 19, Appendix
A, Draft Legislation, p. 283.

231. The Law Reform Commission, supra, footnote 19, pp. 156-
157, 294-295.

232. See also section 7 of the Code, which contains several
crimes, such as committing a crime aboard an aircraft,
crimes against humanity and war crimes, which are defined
broadly in terms of a person committing "an act or
omission", that, in many cases, would be a crime in Canada
if committed in Canada

233. Wisconsin v. Mitchell, supra, footnote 23, p. 4578

234. See Code, section 235 (penalty for murder, minimum
sentence of life imprisonment); other crimes that involve
the killing of a person allow for the possibility of a
sentence of life imprisonment_see section 220 (causing death
by criminal negligence, liable to imprisonment for life);
section 236 (penalty for manslaughter, liable to
imprisonment for life).

235. See Code, ss. 231(4)(a); 231(5).

236. Alternatively, a more limited variation could be made.
If a crime of hate-motivate violence was narrowly defined to
mean, e.g., hate-motivated assault, Code, subsection 231(5)
could be amended to provide that if the death of the victim
was caused while the person committing that crime was hate-
motivated, the death would be defined as first-degree

237. This is also the conclusion reached by the Australian
Law Reform Commission, supra, footnote 19, at 158 in
explaining that the present Australian offence of inciting
the commission of a federal offence would make incitement to
commit the crime of racist violence a crime in the event
that a crime of racist violence were to be created. In
contrast, the Australian National Inquiry into Racist
Violence recommended the creation of a specific offence of
incitement to racist violence and to racial hatred likely to
lead to violence. Racist Violence, supra, footnote 2, p.

238. See Code section 22 ( a person who counsels [which
includes incites] another to be a party to an offence is
also a party to the offence, notwithstanding that the
offence was committed in a way different from that which was
counselled, etc.); section 464 (criminal liability is
imposed for someone's counselling another to commit an
indictable offence even though the offence was not committed
but only attempted, etc.). For proposals for a reform of the
principles governing secondary liability, see _Recodifying
Criminal Law, supra_, footnote 5, pp. 43-48.

239. Anti-Defarnation League, supra, footnote 32, p. 4.

240. The Law Reform Commission, supra, footnote 19, p. 283.

241. For example, in the shooting death of Leo Lachance, the
accused Nerland was charged with manslaughter, an offence of
recklessness, and the trial court had to determine whether
the accused was motivated by racism in acting recklessly.
See Report of Commission of Inquiry info the Shooting Death
of Leo Lachance (Saskatchewan, 1993) (Chair: E.N. Hughes).

242. The Law Reform Commission, supra, footnote 19, p. 157.

243. Assuming that the law should require proof of hateful
motivation, should the formulation of such motivation be
broadly worded or should it be more precise? For example,
should it require that hatred of a person's actual or
perceived race, colour, religion, ethnic origin, etc., be
the sole reason, a substantial reason or just one reason
among others for committing the crime? For a further
discussion of vagueness in the formulation of the hateful
motive as regards mixed-motive situations, see S. Gellman,
"Sticks and Stones Can Put You in Jail, But Can Words
Increase Your Sentence? Constitutional and Policy Dilemmas
of Ethnic Intimidation Laws" (1991) UCLA L. Rev., p. 357. Of
course, the more strictly worded the hateful motivation
component, the more difficult it becomes to prove such
motivation, and this criminal law may become less used than
intended as a result.

244. Racist Violence, supra, footnote 2, p. 181. See pp. 181-
208 of that report for a full discussion on "Racist Violence
against People Opposed to Racism".

245. See Fleischauer and "Note", supra, footnote 24.

246. The argument in favour of the constitutionality of such
a proposal is that the crime operates like an affirmative
action program in ameliorating the conditions of
disadvantaged individuals or groups. However, this proposal
has been criticized as being unconstitutional in the
American context. See J. Morsch, "The Problem of Motive in
Hate Crimes: The Argument Against Presumptions of Racial
Motivation" (Fall, 1991) 82 J. Crim. L. & Criminology, No.
3, pp. 681-686.

247. Anti-Defamation League, supra, footnote 32, pp. 4-5.

248. See, e.g., Florida, which provides, where there is a
violation of its hate crimes statute, for a civil cause of
action against the attacker for treble damages, an
injunction or any other appropriate relief in law or equity.
Fla. Stat. Ann.  775.085, section 2 (West 1992).

249. See pp. 61-65 of this paper

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