Option 5. The definitions of certain crimes in the present Code, such as mischief and assault, should be amended to provide specifically for an automatic penalty enhancement where the crime is committed by reason of a person's hatred of another's actual or perceived race, religion, ethnic origin, et cetera.
This option proposes that statutory changes to existing crimes could be made whereby, if the commission of certain crimes was hate-motivated, the maximum penalty range of those specific crimes would be automatically increased. The Code currently does this in relation to some other crimes. For example, in the context of impaired driving and related offences, Code, section 255 provides that a person who is convicted of impaired driving, on proof of a previous conviction for the same offence, receives an automatic increase in punishment.
The benefit of this approach would be that the use of hateful motivation to increase the penalty for committing a crime would be carefully structured to apply only to those crimes most associated with acts of hate-motivated violence. It would appear to have a denunciatory and educative impact equal to the use of a broadly applied aggravating factor_in fact, it could be argued that, as part of the definition of the crime (in that it would be placed in a subsection relating to the range of punishment for committing the crime), it would have a most effective denunciatory and educative impact.
However, there are disadvantages to this approach. It
presumes that only a limited number of crimes would be so
changed (otherwise a majority of the definitions of the
crimes in the present Code would have to be similarly
changed, which would be most awkward in terms of drafting).
Thus, this approach would be narrow in scope, especially if
it were meant to replace the concept of the use of an
aggravating factor having broad application. There is also
the difficulty of determining which crimes to so alter. On
what basis would some crimes be chosen and others not?
Finally, like options 3 and 4, this approach assumes that
hate-motivated violence is a just a more serious instance of
crimes already set out in the Code, rather than something
especially harmful in its own right.
7.4 Creating Specific Hate-Motivated Crimes
7.4.1 Arguments for the Creation of Hate Crimes
7.4 Creating Specific Hate-Motivated Crimes
7.4.1 Arguments for the Creation of Hate Crimes
The fundamental issue for Canadian criminal law is whether or not there should be a specific crime or crimes of hate- motivated violence. The obvious question that arises is: Why create such crimes when the criminal law already catches this conduct? For example, hate-motivated vandalism is still vandalism, hate-motivated assault is still assault, and hate- motivated murder is still murder. Would not the creation of a crime of hate-motivated violence, therefore, be superfluous?
Let us start at the beginning. What is the difference between a crime of hatemotivated violence and any other crime of violence? Is the harm the same? Or is the harm different?
The answer given by many legal commentators is that hate- motivated violence causes greater harm both to the victim and to society than does regular crime. For example, American legal commentator Peter Finn states:
Many criminal justice personnel view hate violence as just another crime_no more serious or worthy of special attention than any other comparable crime. According to this view, murder is murder, and assault is assault, regardless of whether the offender was motivated by hatred for a class of people, by a desperate need to get cash to feed a drug habit, or by an outburst of jealous rage. However, many criminal justice personnel and community leaders believe that crimes motivated by bias have a far more pervasive impact than comparable crimes that do not involve prejudice because they are intended to intimidate an entire group. The fear they generate can therefore victimize a whole class of people. Furthermore, our country is founded on principles of equality, freedom of association, and individual liberty; as such, bias crime tears at the very fabric of our society.<204>
A description of the effect that hate-motivated crime has on its victims also shows the insidious nature of such attacks. In its analysis of the impact of bias crimes, the New York State Governor's Task Force on Bias-Related Violence quoted from a study conducted by the National Institute Against Prejudice and Violence (NIAPV) on bias violence victim experiences in nine American cities, which stated, in part, that many individuals and families became isolated, withdrawn and paranoid out of fear, others were overcome by anger and revenge fantasies, others fought to stymie feelings of hatred for their attackers, and others experienced sadness and a feeling of powerlessness.<205>
As a result of that study and the testimony received before it, the Task Force found:
The bias crime victimization experience is especially traumatic for victims and their loved ones. The physical injury, property damage and emotional trauma that can accompany any victimization are complicated for bias crime victims by anger, fear and a sense of isolation. Victims who are non-English speaking may suffer additional complications and distress. This emotional stress may occur repeatedly and severely restrict the individual's ability to lead a free and rewarding life.<206>
Arguably, the effect of hate-motivated violence on victims in Canada would be the same.
In a different but analogous context, that of the publication of hate propaganda, recent studies have analyzed the impact that the publication of hate propaganda has had on Jewish Canadians. From 1987 to 1989, research was carried out on a sample of 165 Jewish respondents living in Metro Toronto to assess the impact on them of the Zundel and Keegstra trials. The former accused was charged with the crime of publication of false news (now Code, section 181); the latter was charged with the crime of wilfully promoting hatred (now Code, section 319(2)). Among the results was the following:
Almost 80 percent of respondents reported that they experienced suffering/psychological harm as a result of following the trials. Qualitative responses to these questions revealed that Jewish respondents felt ... silenced ... targeted and exposed ... insecure and fearful ... angry and frustrated deep, gut-wrenching agony and ... too painful to say. Further, 89 percent of respondents expressed the belief that hate propagandizing activities have caused harm and suffering ... psychic harm and trauma ... mental anguish ... to Jews as a people.<207>
If hate propaganda alone produces such harm, would the harm be any less if a person were the victim of a hate-motivated attack? This seems extremely unlikely.
The particularly heinous nature of hate-motivated violence, therfore, justifies treating this form of violence differently from other forms of violence. This rationale is the basis for using hateful motivation as an aggravating factor to enhance the penalty in relation to general crimes such as mischief, assault or manslaughter. Equally, though, the rationale also justifies considering instances of hate- motivated violence as crimes in their own right.
A strong argument put forward for the creation of specific criminal legislation directed at bias-motivated conduct is that such action is required by international human rights treaties. In this regard, Canada is a signatory to both the International Convention on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Specifically, Article 4 of CERD provides, in part, that State Parties, with due regard to the principles embodied in the Universal Declaration of Human Rights:
(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof (emphasis added)....<208>
What is the effect of these international human rights documents in Canadian criminal law? The Supreme Court of Canada will rely on Canada's international legal commitments to assist in determining whether or not criminal law legislation is consistent with, or contravenes, the Charter. For example, in R. v. Keegstra,<209> the majority of the Supreme Court used CERD and ICCPR to show that Parliament had a legitimate objective in enacting the crime of wilfully promoting hatred (Code, section 319, one of the hate propaganda crimes), thus using those international human rights instruments to help uphold the legitimacy of that criminal legislation.<210>
In other contexts, the federal government has taken action on several fronts to better comply with its obligations under CERD.<211>At the federal level specifically, the Canadian Multiculturalism Act, passed in 1988, sets out Canada's multiculturalism policy. The preamble to the Act states that Canada is a party to CERD and ICCPR, and the purposes set out there are clearly informed in part by Canada's desire to adhere to its treaty commitments.<212>
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