3.1 Case Law and Proposals for Reform
Hate-motivated criminal conduct is not ignored by the present criminal law. For example, instances of assault or of damage to property motivated by the attacker's hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera, are treated more severely by the criminal courts for the purpose of sentence.
In R. v. Ingram and Grimsdale <58> the accused persons, 21 and 18 years old respectively, had attacked a Mr. Kanji, a native of Tanzania who had recently arrived in Toronto. They initially assaulted him in a subway car, then, after he had left the car, followed him and pushed him off the subway platform onto the tracks below. The victim severely fractured both legs and suffered severe damage to the knee joints. The trial judge found that the attack was completely unprovoked and was racially motivated. The accused were convicted of assaulting Mr. Kanji and causing him bodily harm. The trial judge imposed a sentence of 23 months' imprisonment on Ingram and 16 months' imprisonment on Grimsdale. The Crown appealed the sentence. Dubin J.A. held that the trial judge erred in failing to hold that the racial motivation for the attack was an aggravating factor to be taken into account at the sentencing stage, just as it would be an aggravating factor if the victim were elderly, feeble or retarded.<59> He asserted that an assault that is racially motivated attacks the very fabric of Canadian society by eroding the fundamental principle that every member of society must respect the dignity, privacy and person of the other; that it renders the offence more heinous; that such offences invite imitation and repetition and incite retaliation; and that this danger is even greater in a multicultural, pluralistic, urban society. The sentence to be imposed in such a case must be one that expresses the public's abhorrence for such conduct and its refusal to countenance it.<60> Accordingly, the sentence was increased, to a term of two and one-half years' imprisonment for Ingram, apparently the more aggressive of the two, and a term of two years' imprisonment for Grimsdale.
In R. v. Lelas,<61> the accused had pleaded guilty at trial to three charges of mischief to property, the value of which exceeded $1,000. The accused and a companion had taken cans of spray paint and used them to paint swastikas on a nearby synagogue, a Hebrew school, and an automobile. The accused, 22 years old, had been involved in several white supremacist groups, and subscribed to the teachings of Ernst Zundel, which claimed that the Holocaust was a hoax. After this incident, there was an outbreak of the daubing of swastikas on synagogues across Canada. The accused had cooperated with the police, had admitted to the crimes, and had apologized to the Jewish community. At trial, he was sentenced to six months' imprisonment concurrent on each charge, together with two years' probation. On appeal of the sentence, Houlden J.A. argued that an offence that is directed against a particular racial or religious group is more heinous, as it attacks the very fabric of our society; that several similar incidents occurred within a brief period of time after the commission of these offences; that the desecration of a place of worship is a serious matter, because it not only damages the physical structures of the buildings but also causes emotional injury and upset to the members of the congregation; and that the accused's acts were done to strike fear and terror and to cause emotional upset to the Jewish comrnunity.<62> "When mischief is racially or religiously motivated and is done to cause emotional injury or shock to a particular segment of Canadian society, it calls for a far more severe penalty than mischief which is done merely to damage property."<63> Accordingly, the sentence was increased to imprisonment for one year concurrent on each count, with the probation order to stand.
In R. v. Simms,<64> the accused Simms and others went to the home of a Mr. Rutherford who, the accused believed, some 30 years before had broadcast a tape that identified a person as a member of the S.S., and the broadcasting of which, the accused believed, had caused the person so identified to commit suicide. At Mr. Rutherford's house, the accused and another person, Swanson, attacked the victim. Simms kicked at Mr. Rutherford while Swanson struck him in the head with a stick. As a result of the blow, the victim suffered permanent blindness in one eye. Simms claimed that he belonged to several white supremacist and fascist organizations. At trial, he was given a sentence of 60 days' imprisonment on a guilty plea to simple assault, while Swanson was given a sentence of five months' imprisonment on a guilty plea to aggravated assault. The majority of the court held that the racially inspired assault required strong deterrent sentences and therefore increased the sentence to 12 months' imprisonment for Simms and 18 months' imprisonment for Swanson.<65>
These cases clearly show that the fact that an accused was motivated to commit a crime by reason of hatred of a person's actual or perceived race, religion, colour, ethnic origin, et cetera, is an aggravating factor that should be used by judges to increase the term of imprisonment at the sentencing stage.
What are the potential advantages or disadvantages of dealing with hateful motivation at the sentencing stage? One reason that the British government uses for not creating a crime of racial harassment is that it would mean that prosecutors would have to prove the element of racial motivation, making it difficult to obtain convictions.<66> Admittedly, this is true. But assuming that a prosecutor seeks to increase the penalty for a crime because an accused acted out of hateful motivation, evidence of such motivation must be produced. If introduction of evidence of hateful motivation is sought at the sentencing stage, and the accused objects to the evidence of such motivation, is a lesser standard of proof needed than would be required at trial?
Applying general sentencing principles, the answer to this is clearly no. In R. v. Gardiner,<67> the Supreme Court of Canada held that any facts relied upon by the Crown in aggravation at the sentencing hearing, if contested by the accused, must be proved beyond a reasonable doubt, not by the civil standard of proof on the balance of probabilities.
However, it should be pointed out that the Court in Gardiner also stated that the strict rules that govern at trial do not apply at a sentencing hearing, and, more particularly, that the hearsay rule does not govern the sentencing hearing. "Hearsay evidence may be accepted where found to be credible and trustworthy."<68> Thus, it appears that, although the Crown must prove disputed circumstances beyond a reasonable doubt, such proof may be met by the use of hearsay evidence,<69> although there is some dispute on the issue at least as regards the voluntariness rule in respect of a statement made to a person in authority.<70>
Thus, an advantage of dealing with the issue of hateful motivation at the sentencing stage appears to be that evidence of such motivation may be proved beyond reasonable doubt by hearsay. But it may be asked if this is a substantial advantage over introducing such evidence at trial. Evidence of an accused's motivation could include statements made at the time of the attack, evidence of belonging to or sympathizing with white supremacist or neo- fascist organizations, et cetera. Arguably, the introduction of such evidence at the trial stage will prove to be no great disadvantage to the prosecution (given that at the sentencing stage, such evidence, if disputed, requires proof beyond a reasonable doubt in any event), and will have the decided advantage of placing the accused's hateful motivation up-front in the trial itself.
In the specific context of hate-motivated crimes, it has been advocated that the present law's approach is unsatisfactory and should be changed to denounce such motivation more forcefully. For example, in the Parliamentary Committee Report Equality Now!<71>, it was argued that racially motivated crimes must be punished and must be seen by the public to be severely dealt with. It therefore recommended that "Justice Canada should prepare amendments to the Criminal Code to allow judges to impose an additional consecutive sentence when the principal criminal act is racially motivated."72 The response of the Minister of Justice was to agree with the aim of the proposal, but not with the means put forward to implement it. The Minister stated that the then recently created Canadian Sentencing Commission would be asked to consider the case of racially motivated crimes in examining the possibility of establishing sentencing guidelines to reduce disparity among sentences.<73>
The Sentencing Commission, in existence from 1985 to 1987, proposed a series of reforms that included the creation of a permanent Sentencing Commission and presumptive sentencing guidelines that could be departed from in accordance with a series of primary aggravating (or mitigating) factors.<74> The list of primary aggravating factors included the "[p]resence of actual or threatened violence",
"[m]anifestation of excessive cruelty towards victim", and "[v]ulnerability of the victim, due, for example, to age or infirmity".<75> However, no primary aggravating factor was suggested that focussed exclusively on the fact that the accused was motivated by hatred of the victim's actual or perceived race, colour, religion, ethnic origin, et cetera.<76> And, to date, no sentencing guidelines have been created.
Nonetheless, interested organizations continue to press for
reform in this area that would involve amending the Criminal
Code to denounce hate-motivated violence more forcefully. For
example, B'nai Brith Canada argues that, among reforms that
should be made to the criminal law regarding hate-motivated
violence, the principle that hateful motivation be used as an
aggravating factor to increase sentence should be codified,
possibly as an add-on sentence akin to the provision in the
Code that creates a consecutive sentence where a firearm was
used in the commission of a crime (Code section 85); that
specific various hate crimes be created (e.g., where the act
is one of vandalism against a synagogue, mosque, Sikh temple
or church); and that a hate crimes statistics act, similar to
that enacted in the United States, should be created.77 Also,
a national symposium on women, law and the administration of
justice recommended that the Criminal Code be amended, in
part, to provide that acts of racism be deemed to be
aggravating factors in the commission of a crime.<78>
This chapter has shown how our criminal law now combats cases of hatemotivated violence. Case law, arising out of appeals to higher courts where a lesser sentence had originally been imposed by the trial court, has led to this sentencing principle: evidence of criminal conduct motivated by hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera, constitutes an aggravating factor that increases the penalty at the sentencing stage for committing the basic crime. A crime committed because of such motivation is seen as being particularly heinous because it attacks the very fabric of a multicultural, pluralistic society. However, the way the present law addresses such behaviour has been criticized. The major criticism is that a more public condemnation of such conduct is needed. As - a result, some have argued the need for amendments to the Criminal Code, such as an amendment that would allow the court to impose a consecutive sentence where it is proved the crime was racially motivated, as well as for the creation of a crime or crimes of hate-motivated behaviour, such as a crime of vandalism of a religious institution.
In the chapters to follow, this paper will examine options for reform of the criminal law in combatting hate-motivated violence, beginning with what perhaps is the first question that should be considered: However the criminal law should be reformed to better combat hate-motivated violence, whom should the criminal law protect?
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