In researching the issue of hate-motivated criminal conduct, this study examined existing criminal law practice in Canada and certain foreign jurisdictions, relevant case law, legal periodicals relating to the topic, government publications (e.g., in England, documents published by the Home Office), proposals for reform in this area by national reform-minded agencies (e.g., the Law Reform Commission of Australia), publications by interested private organizations (e.g., the League for Human Rights of B'nai Brith Canada and the American Anti-Defamation League), and recent, selective newspaper articles about specific incidents of hate- motivated criminal conduct.
This examination was not confined to Canada for two reasons. First, the problem of hate-motivated criminal conduct is not confined to Canada. As recent events in other parts of the world have shown_from attacks on immigrants in Germany to ethnic cleansing in Bosnia_this is a problem that plagues the world. Confining the study only to Canada in light of these recent international events would lend an air of unreality to discussion of the problem. Secondly, the purpose of this paper is to consider carefully to what extent Canada's criminal law needs to be reformed to address the problem. In considering reform, it is necessary to examine how other jurisdictions have acted, or are considering acting, to combat the problem; they may serve as useful guides for reform of Canadian criminal law in this area.
An important question, however, is: What jurisdictions
should be selected in examining possible avenues for reform?
Those chosen were the United States, England, Australia, New
Zealand, France, Germany and Sweden. The United States was
chosen, not simply because of its geographic proximity to
Canada, but because it is often a fertile source of reform
in criminal law. The United States has most aggressively
pursued a policy of combatting hate-motivated violence
through the use of specific hate crimes legislation.
England, Australia and New Zealand are Commonwealth
countries with legal traditions similar to that of Canada,
and whose legal responses to criminal law issues are often
studied to assist in developing proposals for reform of
Canadian criminal law. Germany, France and Sweden were
selected as being reasonably representative of the approach
of Western Europe in combatting hate-motivated violence.
2.2 Literature Review
2.2 Literature Review
Although little legal literature exists on the issue of hate- motivated crime in Canada, much has been written on this subject in recent years in other jurisdictions, such as the United States, England, and Australia. In the context of creating specific criminal legislation to combat bias- motivated violence, the most exhaustive and even the most critical literature is found in the United States.
This chapter focusses on certain aspects of the material
studied: what is known about the incidence of hate-motivated
conduct both in Canada and in some of the other
jurisdictions studied, what is known about those who engage
in this conduct, and what problems arise for those who
favour increased use of the criminal law in this area, given
this information. Other chapters will explore in greater
detail other issues raised in examining this problem.
2.2.1 Data on Hate-motivated Violence
18.104.22.168 A Brief History of Hate-motivated Violence in Canada
2.2.1 Data on Hate-motivated Violence
22.214.171.124 A Brief History of Hate-motivated Violence in Canada
Canada has a long history of hate-motivated violence towards racial or ethnic minorities. For example, in 1907 in Vancouver, a mob of whites attacked the Chinese and Japanese communities, causing at least extensive damage to stores and, it was claimed by one report, "several fatalities".<16> During World War II, members of the Japanese Canadian community were interned and their property confiscated.<17> In the 1970s, a series of subway attacks against members of the South Asian community in
Toronto helped to result in creation of a task force to study that problem.<18> In a 1980 study on interracial conflict in Canada,<19> Dhiru Patel pointed out that:
Historically, ... established leaders in Canadian society (both individual and institutional) have made key contributions to interracial violence, for example, to the anti-Chinese riot of 1887 and the anti- Chinese/Japanese riot of 1907 in Vancouver. In both cases, the local newspapers, respectable individuals (businessmen, clergymen, politicians) and organizations played a very prominent role in at least preparing the groundwork and instigating the violence, which claimed "scores" of Chinese lives. The timing of the riots seems to have been related to white workers' alleged fears of economic competition, especially at a time of recession ....<20>
Patel agreed with studies which suggested that:
[R]acial violence in Canada cannot be explained sufficiently in terms of the "deviant-individual" or the impersonal "social-forces" perspectives alone. The earlier violence initiated by the dominant community against the Japanese and Chinese and the more recent violence against nonwhites in Montreal, Toronto, and Vancouver are two cases in point: prominent, respectable individuals and social institutions and organizations played an important, if not a critical, role in the former case, and the strength and pervasive nature of at least latent racism is indicated in the latter.<21>
126.96.36.199 Recent Canadian Data
One of the major difficulties in determining the extent of hate-motivated violence in Canada is that information on such incidents is not systematically collected and reported on a national scale. Thus, available data about such violence provide, arguably, a limited view of the scope of the problem. As noted earlier, the 1992 Audit of Anti- Semitic Incidents stated that 196 anti-Semitic incidents across Canada were reported to the League for Human Rights of B'nai Brith Canada that year. Although there was a 22 percent decrease over the preceding year, this decrease was expected, given the rash of anti-Semitic incidents that occurred during the Gulf War. These figures still constituted an 11 percent increase over 1989.22 Of the incidents reported in 1992, 56 involved acts of vandalism and 150 involved acts of harassment.<23> Of the acts of harassment (defined as any incident of abuse or threat directed against an individual, group or institution, including incidents of hate propaganda), three involved acts of violence and eight involved threats of violence, the remainder being incidents of slurs and hate propaganda.<24> The 1992 Audit also reported that a significantly large number of all types of incidents were directed at individuals, and that there was a disturbing rise in incidents directed at non-Jewish institutions, the latter indicating the increased efforts of hate groups to target high schools and universities and the average person on the street.<25>
In the context of compiling incidents of hate-motivated conduct, it is useful to examine a 1991 research report prepared for the Economic Council of Canada, Economic and Social Impacts of Immigration.<26> The report analyzed the data of anti-Semitic incidents compiled by the B'nai Brith League for Human Rights from 1982 to 1989, a total of 615 incidents. The results of this analysis showed a strong positive correlation between the raw frequency of anti- Semitic incidents and the proportion of Jewish residents in the region. While the uncorrected number of antiSemitic incidents showed no significant change over time, there was evidence of an increase over time in the number of incidents reported, once the effects of other variables (e.g., proportion of Jewish residents, unemployment rates) were taken into account.<27>
In addition, the B'nai Brith League for Human Rights, in its report, Skinheads in Canada and Their Link to the Far Right,<28> outlined several incidents of neo-Nazi skinheads engaging in anti-Semitic activity (including assaults, threats, and desecration of synagogues) and concluded:
The Skinhead movement has become a serious threat to the Jewish community and the multicultural fabric of Canadian society. Their activities have become more organized, open, violent and pervasive. Communities from coast-to-coast are threatened.<29>
Of course, evidence of anti-Semitic activity is but one aspect of hate-motivated activity in Canada. What about incidents of hate-motivated violence directed against members of visible minorities because of their race or colour of their skin?
To begin with, there are indications of systemic discrimination against members of visible minorities. In his recent report to the Ontario government following the riots in Toronto in the spring of 1992, Stephen Lewis asserted that, while every visible minority experienced the wounds of systemic discrimination throughout Southern Ontario, the root kind of racism to be dealt with was anti-black racism.<30>
In the context of criminal justice reform, a consensus appears to have developed that the treatment of aboriginal persons by the present criminal justice system has promoted inequitable, not equitable, treatment.<31>
But, assuming that systemic discrimination against visible minorities is a major problem in Canada, to what extent has that translated into bias-motivated violence against those minorities? Recently, Jeffrey Ross systematically studied the extent of right-wing violence in Canada, by studying newspaper clippings and similar sources for incidents of such violence taking place between 1960 and 1990. The incidents, totalling 159, covered only persons who had instigated violence or who were in direct confrontational activities, but did not include activities that only promoted violence. Nor did these include threats, harassment, or defacement of property such as cemetery desecrations. The results included the following:
(a) Canada has consistently experienced a relatively annual low level of right-wing violence with two exceptions. During 1980-81, there were 23 incidents (accounting for almost 15 percent) and again in 1989 there were 27 events, (contributing to 17 percent) of the total number of events (159) in the 1960-90 period. Otherwise the number of attacks hovered around 5.3 incidents per year;
(b) As regards the type of event for radical right-wing violence, more than half of the attacks (89) were directed specifically at people. These were mainly assaults, many of which occurred during protest situations, with the balance divided between bombings and other types of actions;
(c) In descending order of frequency, the provinces of Ontario, Quebec, and British Columbia have experienced the overwhelming majority of right-wing incidents (96.9 percent). These events have occurred in provinces where the majority of Canadians, particularly large emigre, minority, and immigrant populations, live;
(d) Most acts of right-wing violence were acts committed by individuals unaffiliated or not claiming membership with a particular group, or by groups not wishing to be publicly identified by their actions. The bulk of actions for which a culprit could be found have been executed in recent years by skinheads (26) while the remainder are equally divided between neo-fascist groups, such as the Western Guard, and anti-communist nationalists;
(e) The majority of attacks (58 events) are of a racist nature. In descending order of importance the attacks of an anti-communist/nationalist nature (56) and antiSemitic ones (17) hold second and distant third place positions respectively;
(f) In the three decades covered by this data set only six people were killed as a result of radical right-wing violence, i.e., only four percent of acts of this kind of violence ended in deaths to the participants (these included a Sikh restaurant worker killed on his way home from work in Vancouver, and a homosexual activist killed by skinheads in Montreal). One hundred and twelve people were injured as a result of radical right-wing violence in Canada. In order of frequency, the type of people injured were domestic noncombatants (73), police (18), foreign noncombatants (13), and radical right members (8). The majority of people attacked were of Canadian and not foreign citizenship;
(g) As regards the categories of victims, the majority of them (57.5 percent) are protesters, members of an audience or passersby. In other words, few specific people have been targeted. Those hurt have been random. The majority hurt are Canadian citizens.<32>
Ross therefore concludes that the amount of right-wing violence in Canada pales in comparison with that occurring in the United States, suggesting that policymakers, the media, and academics are overreacting to radical right-wing violence.<33>
Given that incidents of right-wing or hate-motivated violence, according to Ross, do not appear to be numerous, one could argue that there is no substantial problem that requires a legislative response to such violence. In short, the problem of hate-motivated violence in Canada is not a major one, unlike in the United States, where the legacy of historically rooted institutional racism against blacks (such as slavery and later the separate-but-equal doctrine) has arguably produced a systemic racism, which the United States is striving to combat. Because there is no equivalent problem of hate-motivated violence like that in the United States, there is no need to follow the approach of several American states by creating specific criminal laws to deal with such violence.
However, the mere fact that reported incidents of hate- motivated violence are not numerous does not necessarily mean that the problem is not serious. First, such violence does occur, and in a multicultural nation like Canada, that in itself should cause concern. Secondly, in the absence of mechanisms to obtain nationwide data about hate-motivated crimes, it is difficult to measure accurately the full scope of the problem. In short, present methods of data collection on hate-motivated violence in Canada make it difficult to determine the extent of such violence. It may well be asked: If a national inquiry were created to look specifically at the issue of hatemotivated violence in Canada, would it find the same degree of violence that was found in Australia by the national inquiry into racist violence by that country's Human Rights and Equal Opportunity Commission?34 In fact, even where such mechanisms exist, a criticism made about the collection of data concerning racial harassment or racial violence is that persons who are the victims of such violence but who are wary of the police may not report these incidents.<35>
The original plaintext version of this file is available via ftp.
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