In January 1993, seven Montreal-area synagogues were defaced with swastikas and a Nazi slogan. The attacks, which appeared to be orchestrated, were described as the worst acts of anti-Semitic vandalism in Quebec in nearly three years.' In June 1993, a Tamil who had left Sri Lanka to escape the ethnic strife there was viciously attacked by three men, whom he had never seen before, at the end of his work shift at a Toronto restaurant. Police said the attack was racially motivated. A 19-year-old skinhead linked to white supremacist organizations was subsequently charged with aggravated assault and denied bail.<2>
These incidents are vivid illustrations of what is often called racist or racially motivated violence. However, because of the problems inherent in the concept of race,<3> a more accurate definition is needed. Thus, terms such as hate-motivated violence, hatemotivated conduct, hate crimes, bias-motivated violence, or bias-motivated conduct, are generally used in this paper instead. This is, however, subject to one caveat: where reference is made to material that has used terms such as racist violence or racially motivated violence, those terms generally will be used in order to be consistent with the original author's terminology.
What is meant by the term "hate-motivated violence"? The term has been broadly defined. For example, the Australian Human Rights and Equal Opportunity Commission defined the term "racist violence" to include not only physical attacks upon a person but also verbal,and nonverbal intimidation, harassment and incitement to racial hatred. This would include intimidating phone calls as well as threatening insults and gestures.<4> Robin Oakley, in a consultant's report to the Council of Europe on racial violence and harassment, points out that while the popular image of racial violence involves acts of a serious criminal nature, such as murder or serious wounding of victims, nonetheless minor assaults and "non-physical" actions such as jostling, spitting, verbal and written abuse_unprovoked and repeated_ constitute racial harassment that more forcefully contributes to the "everyday racism" that affects victims' lives.<5> Given this context, the term "hate-motivated violence" at the very least covers conduct already caught by the present criminal law that is motivated by hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera. This would cover serious acts of violence against people or property, or threats of such violence. In this regard, many of the acts of harassment referred to above also would be caught by the present criminal law. Minor assaults, such as spitting on someone, are nonetheless assaults. Writing racist graffiti on someone's property without their consent would constitute the crime of mischief (commonly called vandalism). However, the extent to which the criminal law should be used to curtail racist activity, including acts of harassment, that is not already caught by the present criminal law, is not addressed by this paper. In particular, the following discussion does not address whether a crime of racist insult should be created. Nor does it address whether racist organizations should be criminalized. As well, it does not recommend changes to what are commonly known in Canadian criminal law as the crimes of hate propaganda. These issues involve the criminalization of activities, which involves carefully balancing the guarantees of freedom of expression and freedom of association found in the Canadian Charter of Rights and Freedoms<6> with the need to uphold the right to equality and to protect human dignity. Therefore, these issues are best left to be examined by future research papers.
There is one other limitation on this study. It addresses criminal law solutions to the problem of hate-motivated violence. Hence, it does not address noncriminal remedies to address the problem, such as civil actions for damages, or remedies that could be provided under various human rights agencies.
Why is this an issue of sufficient importance to warrant study? First, there is rising concern about hate group activity in Canada. For example, the League for Human Rights of B'nai Brith Canada has for several years published an annual audit of anti-Semitic incidents that are reported to it. Table One of the 1992 Audit of Anti-Semitic Incidents shows a general increase in such incidents over the years, from 63 in 1982 to 196 in 1992.7 The 1992 Audit expressed concern over the bolder, more open activities of the far right, and pointed out that, while the League has had to react in recent years mostly to hate propaganda and recruitment efforts by these groups rather than to more violent forms of anti-Semitic activity, the more extremist groups remain active and pose a threat of violence, and described major incidents of synagogue desecration.<8>
Attacks against homosexuals have been reported by others. For example, in Montreal, incidents of "gay-bashing" reported by the press include not only assaults but, in some cases, the killing of homosexuals.<9> One Canadian legal commentator has recently stated that "[i]t is not hyperbole to assert that queer-bashing is a social phenomenon of epidemic proportions".<10> As well, the police in some cities, including Ottawa and Toronto, have recently set up special units to investigate hate-motivated crimes."
Secondly, Canada is a multicultural, pluralistic nation. The demographic reality is that the proportion of immigrants living in Canada who were born in Asia as opposed to Europe has increased over the years,<12> and this trend apparently will intensify in the early part of the 21st century.<13> Moreover, Canada has taken constitutional and other legal steps to recognize and protect this reality. For example, section 27 of the Charter provides that the "Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians"; and in 1988, the federal government passed the
Canadian Multiculturalism Act, which sets out the policy of the Canadian government in recognizing and promoting the multicultural heritage of Canada.<14> In the realm of criminal law, the Criminal Code contains crimes of hate propaganda, designed to protect certain "identifiable groups" from the harm caused by hate propaganda.<15> And yet, there is no other provision in the Code that specifically denounces hate-motivated conduct of a more immediate violent nature.
Given this context, hate-motivated violence should not be viewed as a marginal problem, but rather as a matter of serious concern that must be addressed in public policy.
What do we know about recent incidents of hate-motivated violence in Canada? How does the compiling of data in relation to such violence compare with that in other jurisdictions? What is known about those who commit such violence? How is our present criminal law attempting to combat such violence, and how has this attempt been received by interested parties? Indeed, how have other jurisdictions attempted to combat bias-motivated conduct? Are they ignoring this issue? Or are they taking measures -- by enacting legislation or otherwise -- to prevent such violence?
Whom should Parliament try to protect in combatting hate-motivated violence? In criminal law, the concept of race, along with other criteria, has been used in the hate propaganda legislation that is primarily intended to prevent the promotion of hatred against members of an "identifiable group". But is the concept of race a useful one? Should Parliament protect from such violence members of the same identifiable groups that are protected by the present hate propaganda legislation? Or should the identifying factors for protecting persons from hate-motivated violence be expanded? For example, should "sexual orientation" be added as an identifying factor?
The Rodney King incident in the United States serves as an example of the federal legal mechanisms that are available in that country to prosecute persons, including police officers, for violations of a person's civil rights where prosecutions pursuant to state penal laws have failed. What are the implications of the Rodney King incident for Canada? For example, would it be appropriate to provide a remedy in criminal law for the violation of a person's constitutional rights in Canada?
Finally, what options are available for combatting hate- motivated violence? For example, should the criminal law do nothing to respond to such violence? Should a federal hate crimes statistics statute be enacted that would result in the collection of hate crimes statistics nationally? Should the issue be addressed solely by means of sentencing procedures and, if so, how should these be constructed? Is it justifiable to treat hate-motivated violence as a separate crime from other, more general crimes, such as assault? If a crime (or crimes) of hate-motivated violence were to be created, how should such a crime be defined? For example, should it be restricted to only cover some criminal conduct or, generally, all criminal conduct? What should its mens rea requirement be? And should the awarding of punitive damages in relation to such crimes be permitted if possible? This paper will attempt to provide informed insight into these issues.
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