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Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-008-00

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-008-00
Last-Modified: 1997/01/23
Source: Department of Justice Canada


This paper has attempted to examine comprehensively the
issue of hate-motivated violence, by looking at the
treatment of such criminal conduct in Canada and in certain
other foreign jurisdictions, and by looking at various
proposals for reform in this area in Canada and in those
other jurisdictions.

The paper argues that the issue of hate-motivated violence
is deserving of public policy attention, given past and
recent incidents of hate-motivated violence in this country,
Canada's multicultural heritage, and the attention given
this problem in other countries.

How should the criminal law combat hate-motivated violence?
Should it do nothing? Or is it best to use the existing
criminal law, which, through judge-made sentencing practice,
treats evidence of such motivation as an aggravating factor
to increase the penalty for committing the basic crime? Or
are better solutions available?

The paper presents a range of policy options for
consideration. Briefly summarized (as they are more fully
explained in the previous chapter), these options are:

1. Unlike the present law, refuse to treat a person who has
committed a crime by reason of hatred of a person's actual
or perceived race, religion, ethnic origin, et cetera, more
severely than any other person who commits the crime without
such hateful motivation.

2. Create a federal hate crime statistics statute requiring
the collection of national statistics on hate-motivated
violence in Canada.

3. Continue the present law and have judges increase the
penalty where the crime was hate-motivated, in accordance
with judge-made sentencing principles established by case

4. Use such hateful motivation as an aggravating factor to
increase penalty as part of a comprehensive regime of
aggravating factors set out in sentencing guidelines or in
the Criminal Code, or create a specific statutory
formulation in the Code to increase the penalty for any
crime committed by such hateful motivation.

5. Create an automatic penalty enhancement for certain
crimes, such as mischief and assault, built into the actual
definitions of these crimes, where these crimes are
committed by reason of an attacker's hatred of the victim's
actual or perceived race, colour, religion, ethnic origin,
et cetera.

6. Create a specific crime of institutional or religious
vandalism. And, create a crime of bias intimidation, which
would have the effect of creating a more severe penalty
where certain general crimes, such as assault or threatening
harm, are committed by reason of hatred of a person's actual
or perceived race, colour, religion, ethnic origin, et

7. Create a general crime of hate-motivated violence that
would catch most criminal conduct that is hate-motivated and
that would impose a severe penalty for committing such
criminal conduct.

8. Redefine the crime of first-degree murder so that it
includes a murder committed by reason of hatred of a
person's actual or perceived race, colour, religion, ethnic
origin, et cetera.

9. Ensure that, if a separate crime (or crimes) of hate-
motivated violence is created, incitement to commit such
violence is also caught by the criminal law.

10. Ensure that the maximum penalty imposed in relation to
hate-motivated behaviour preferably operates in a principled
way, such as by increasing the maximum penalty to one and
one-half times that for committing the basic crlme.

11. As regards the mental element for a crime of bias-
motivated conduct, it should be required to be proved that
the accused purposely or recklessly harmed the victim
because of hatred of the victim's race, religion, colour, et
cetera. However, expanding the crime to include negligent
behaviour should also be considered.

12. Define any sentencing provision or crime of hate-
motivated violence in such a way that it protects members of
those groups identifiable on the basis of their race,
national or ethnic origin, colour, religion, sex, age,
mental or physical disability, or sexual orientation.

13. Ensure that measures taken by the criminal law to combat
hate motivated violence protect those who are attacked
because of their support for members of those identifiable

14. Consider giving a judge at a trial of a person accused
of committing hate-motivated violence the power to award
punitive damages to the victim of the crime.

15. Consider creating a crime of violating the
constitutional rights of a person.

The paper inquires into the advantages and disadvantages of
each approach. Refusing to take at all into account evidence
of hateful motivation is dismissed as an untenable approach.
The more difficult question is: Does fidelity to the
principles governing the use of the criminal law require
that law to address this conduct by enhancing the penalty in
relation to currently existing crimes (however this may be
structured)? Or is it justifiable to create a separate crime
or crimes of hate-motivated violence?

The arguments against creating a crime or crimes of hate-
motivated violence include the view that the conduct is
already covered by existing crimes such as mischief, assault
or murder, so that creating new crimes is not only
unnecessary, but also a violation of the fundamental
principle of restraint in the use of the criminal law; and
that these crimes would have little or no deterrent effect
on those who would commit such acts.

However, considering the seriousness of the harm caused to
the victim, the victim's group, and society as a whole
arising from such acts of violence, considering the need to
affirm the fundamental values of equality and human dignity,
and considering Canada's international commitments to
combatting racism and its national commitment to the
development of a multicultural society, the paper argues
that it may well be justifiable to create a separate crime
or crimes of hate-motivated violence. Whether or not this
approach is accepted, it is to be hoped that the range of
options presented in this paper will inform the reader about
possible avenues to reform.

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