4.1 Problems and Issues in Deciding Whom to Protect
Although the term racist violence or racially motivated violence is often used to describe criminal conduct motivated by a person's actual or perceived hatred of a victim's race, ethnic origin, religion, et cetera, there are nonetheless difficulties with the concept of race.
In the realm of anthropology, there appears to be a prevailing view that the concept of race is a useless one. For example, Ashley Montagu claims that "[t]he idea of 'race' represents one of the most dangerous myths of our time ...."<79> Montagu explains that there are generally three major population groups_the Negroid or black, the Caucasoid or white, and the Mongoloid. However, it is preferable to call these major groups rather than races. The use of the term "major group" is purely arbitrary, indicating only that the likenesses in certain characters exhibited by some populations appear to link more closely than to other populations.<80> On the other hand, as David Goldberg points out, the primary contemporary uses of "race" assume significance in terms of class or culture. Of the two, since World War II, the cultural conception of race has come to enjoy considerable commitment, though not without controversy. Generally, the cultural conception includes identifying race with language group, religion, group habits, mores or customs.<81>
Given the difficulties associated with the concept of race, it may be asked why the concept is used in modern legislation at all. The answer is that race is used in this context not to promote the idea of racial superiority but to attack it. Nonetheless, a crime of racial motivation, if interpreted strictly in accordance with "race" in its biological meaning_assuming that race has such a meaning_would include only those large population groups referred to earlier: generally, the Mongoloid, the Negroid, and the Caucasoid. To avoid such a restrictive interpretation, legislation that aims to prosecute hatemongers has additional criteria in order to protect a broader range of groups. <82>
In Canadian criminal law, the crimes of hate propaganda (set out in Code, sections 318-319) are the only crimes that are designed to protect certain groups from certain hateful conduct. More specifically, they protect certain identifiable groups from, generally, the destructive effects of wilful promotion of hatred.<83> Section 318(4) defines "identifiable group" as meaning "any section of the public distinguished by colour, race, religion, or ethnic origin."
Assuming that additional measures should be taken to combat hate-motivated violence (e.g., by using sentencing guidelines or a Code amendment to set out that hateful motivation is an aggravating factor that increases penalty, or by creating a crime or crimes of hate-motivated violence), it seems appropriate that such measures at least protect the same groups that are currently set out in Code, section 318(4). There are two reasons for using the present definition of "identifiable group" as a starting point. First, as a policy matter, Parliament has already decided that those groups are particularly vulnerable to hate propaganda attacks. If members of such groups are protected from venomous speech, it appears even more appropriate that they be protected when the criminal conduct consists, not of speech, but of acts of violence against them or their property. Secondly, providing protection to members of the same groups promotes a consistency of approach in the criminal law.
A more difficult issue, however, is whether or not the present list of identifying factors set out in section 318(4) is too narrow in scope. Should other factors be included that are not now in the definition of "identifiable group"?
The United States provides a useful guide as to the variety of groups that maybe singled out for protection by hate crimes legislation. A majority of the states have legislated hate-motivated crimes of some sort, and the majority of these statutes are based on, or similar to, model legislation proposed by the American Anti-Defamation League (hereinafter referred to as the ADL). This model legislation proposes, in part, a crime of intimidation if a person commits certain basic crimes "by reason of the actual or perceived race, colour, religion, national origin or sexual orientation of another individual or group of individuals".<84> Thus, it includes "national origin" and "sexual orientation" as identifying factors. While most states use the criteria of "race, religion and ethnicity" as factors in defining the accused's motivation, some states also add "sexual orientation" and "gender" as factors. A minority of states also include other factors such as "mental or physical disability or handicap", "age", and even "political affiliation".<85>
Thus, the groups or members of groups that are protected by American state penal law relating to bias-motivated conduct do not fall within the narrow biological concept of race. In fact, the terminology used to describe these types of crimes is not uniform. For example, legal commentators use phrases to define this kind of crime that range from "ethnic intimidation la vs",<86> to "bias crimes",<87> to "hate-motivated behaviour",<88> to "racially-motivated violence".<89>
The broad range of groups covered by the bias crimes of various American states raises an important question: On what basis should our criminal law protect members of certain groups? One possible principle is that it is wrong for an attacker to select victims on the basis of certain immutable characteristics over which they have no control. Factors such as colour, race, ethnic origin and sex fall within the scope of this principle. So also do other factors such as age, or mental or physical disability.
However, this principle would obviously be too narrow, because it would not cover a person's religion (since a person, in theory, can change his or her religion). Another principle could be that the Code should protect members of those groups who are at risk of being physically attacked because of their membership in the group. This, for example, would protect gays or lesbians, although not necessarily the aged (in the latter case, there is little evidence of criminal attacks against the elderly on the basis that the attackers hate the elderly). The difficulty with using this as an organizing principle is that, although history and the present may indicate what groups could be at risk of violence now, it is difficult to predict what groups would be at risk of violence in the future. For example, in a population that is growing older, is it possible that, in the future, hatred may build up among the young towards the elderly for using too many resources at the expense of the young?
In this context, Canadian proposals for reform concerning the definition of "identifiable group" for the crimes of hate propaganda are useful. Specifically, the Law Reform Commission of Canada noted the difficulty of adhering to a general principle in determining which groups should be protected by those crimes, and recognized that an ad hoc list of groups would have to be created. The Commission recommended that the definition be expanded to include the specifically enumerated criteria of "colour, race, ethnic origin, religion, national origin, sex, age, or mental or physical disability" set out in the equality guarantee of subsection 15(1) of the Charter.<90> Given that the Charter guarantees members of such groups protection from discrimination, it is arguable that any criminal law initiatives to combat hatemotivated violence (against people or property) should protect members of these same groups.
Arguably, though, such a proposal raises two issues. First, what conduct would be caught if the definition of "identifiable group" were expanded to include "sex" as a protected category? If "sex" were to be included as a criterion, then misogynists who commit crimes against women would face an increased penalty for committing crimes motivated by hatred of the victim's gender. It may be argued that including gender as a factor in defining hate-motivated criminal conduct is unnecessary, given that the
Given the fact of hate-motivated violence against
homosexuals, it appears most appropriate to include "sexual
orientation" as a criterion for protecting members of
certain groups in any definition of hate-motivated violence.
This chapter focussed on this issue: Members of which groups should be protected from hate-motivated violence? The chapter first examined the difficulties associated with the concept of race, and surveyed the use of other criteria in addition to race that are used to protect certain groups from harmful conduct. It examined whether or not there is an overarching principle that can be applied to determine which groups to select for this purpose. Is it that persons should not be selected as victims of crime because of someone's hatred of immutable characteristics? Or should the issue focus on those groups most at risk of violence in our society? The chapter ar~d that it is difficult to apply a single principle, and that an ad hoc list of criteria may be the best approach available.
At the very least, it is argued that protection from hate crimes should apply to members of an "identifiable group" as now defined for the purpose of the hate propaganda legislation -- that is, "any section of the public distinguished by colour, race, religion or ethnic origin". However, this is arguably too narrow a list of criteria. A better list would be one that includes those criteria specifically set out in the equality guarantee of subsection 15(1) of the Charter -- that is, those of "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability". In addition, it is strongly argued that "sexual orientation" should be included in this list of criteria, given the fact that homosexuals are at risk of physical violence for no other reason than that they are homosexual.
Given that members of certain groups should be protected from hate-motivated violence, is the present law the most satisfactory way of ensuring this aim? One way of answering this question is to compare the present approach taken by Canadian criminal law with that taken by other jurisdictions. The next chapter examines how certain foreign jurisdictions tackle the problem of hate-motivated violence.
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