In this context, the specific issue that arises is whether or not these international obligations compel lawmakers to the conclusion that criminal legislation aimed specifically at hate-motivated violence should be created. On one hand, one could argue that there is no need to alter existing criminal law to tackle this problem: that the present law adequately satisfies our international obligations in this area. On the other hand, one could argue that these international treaties require Canada to create new criminal law to satisfy its international obligations. Clearly, the creation of specific criminal legislation to combat hate- motivated violence more forthrightly satisfies Canada's obligations under international law. In this regard, as previously noted, reform-minded organizations in Australia, a country that has much in common with Canada,<213> have strongly argued for the creation of a crime of racist violence, in large part because they believe that such a reform would better comply with Australia's international obligations under CERD and ICCPR.<214>
Another reason that can be given for the creation of new
criminal law to combat hate-motivated violence is that it
would serve an important symbolic or educational purpose. As
stated in the Law Reform Commission of Canada report, Our
Criminal Law, the primary purpose of the criminal law is to
reaffirm the fundamental values of society by publicly
condemning conduct that violates those values.<215> In this
case, the argument would be that the fundamental values of
modern Canadian society include those of human dignity and
equality, which are undermined by hatemotivated violence.
Therefore, even though there already are general criminal
laws that can be used to prosecute such conduct, the
creation of a hate crimes statute would better affirm these
values by most clearly denouncing this conduct.
7.4.2 Constitutional Concerns
7.4.2 Constitutional Concerns
Would the creation of a crime or crimes of hate-motivated violence be unconstitutional under Canadian law? To answer this question, it is respectfully suggested that the American experience is most useful as a guide. Why? For this reason: American law has more zealously guarded freedom of expression than has Canadian law. Because of the differences in our respective constitutions and cultures, the United States Supreme Court and the Canadian Supreme Court have reached opposite views about the constitutionality of laws prohibiting hateful expression. In R.A. V. v. City of St. Paul,<216> the United States Supreme Court ruled that a city ordinance prohibiting racist vilification was unconstitutional by violating the First Amendment of the Constitution. In contrast, in R. v. Keegstra,<217> the Supreme Court of Canada held that the crime of wilfully promoting hatred against an "identifiable group" was constitutional.
And yet, even though the United States Supreme Court has more forcefully defended freedom of expression in this context than has the Supreme Court of Canada, it has still upheld, in Wisconsin v. Mitchell,<218> the constitutionality of hate crimes legislation that increases the penalty for certain crimes committed by reason of hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera. Given this American precedent, and given the Keegstra precedent, it is inconceivable that the creation of similar hate crimes legislation in Canada would be found to be unconstitutional_especially since the current practice in Canadian criminal law at the sentencing stage is to use evidence of hateful motivation as an aggravating factor to increase the penalty for committing a crime.
Nonetheless, some critics of the hate crimes legislation in the United States claim that these laws do not afford sufficient protection to minorities. To make the prosecution of hate crimes more effective, they have proposed controversial changes to the hate crimes laws that could render those laws, if so changed, subject to attack as being unconstitutional. These proposed changes involve defining hate crimes in such a way as to create a presumption of racist intent, but to allow an accused to raise an affirmative defence of no racial motivation, thereby shifting the burden of proof on the issue of motive from the state to the accused. As well, minorities would be exempt from prosecution under this criminal law, so that it would only be used to prosecute racist individuals of the majority white population who assault members of a minority group.
A hate crimes statute designed in a manner that requires the prosecution to prove hateful motivation, and that affords protection to both minority and majority groups in society, raises no Charter problems. However, if the definition of the crime presumed racist intent and was restricted to allow for prosecution only in cases where the perpetrators of violence were members of the white majority, possible Charter violations clearly would arise. In such a case, the presumption of innocence is arguably violated. Also, there is a violation of the equality guarantee, because the law would deny a significant proportion of the Canadian population protection from such harmful attacks.
These controversial proposals for reform, however, do not
affect the constitutional validity of hate crimes
legislation modelled upon the lines suggested by the Anti-
Defamation League. Thus, the fundamental question remains:
Should the criminal law of Canada be amended to create such
crimes as a matter of policy?
7.4.3 Tests of Criminality
7.4.3 Tests of Criminality
In this regard, the philosophy espoused by the Law Reform Commission of Canada serves as a guide for determining when crimes should be created. In its report, Our Criminal Law, the Commission emphasized restraint in the use of the criminal law.<220> It proposed a stringent four-pronged test to determine if an act should be subject to criminal penalties:
* Does the act seriously harm other people?
* Does it in some other way so seriously contravene our fundamental values as to be harmful to society?
* Are we confident that the enforcement measures necessary for using criminal law against the act will not themselves seriously contravene our fundamental values?
* Given that we can answer "yes" to the above three questions, are we satisfied that criminal law can make a significant contribution in dealing with the problem?<221>
The first issue to be determined is: Does the act seriously harm other people? Obviously, an act of vandalism or assault is an act deserving of criminal sanction, because either the person is deprived unjustifiably of his or her property, or the person is physically harmed. However, these acts are already caught by the criminal law. Consistent with the principle of restraint in the use of the criminal law, one could strongly argue that there is no need to create new law that would duplicate the existing criminal law, where the only difference would be the additional component of hateful motivation. By this argument, the proper approach for the criminal law would be to use evidence of such motivation as an aggravating factor to increase the penalty for committing an existing crime, just like all other aggravating factors. This would also promote a principled approach in the use of the criminal law by having just one crime (e.g., assault) focus on the harm caused, rather than by creating a variety of crimes all aimed, essentially, at the same wrongful conduct.
This argument assumes that the central harm aimed at by these general criminal laws is the same as that aimed at by a criminal law prohibiting hate-motivated violence. But it is recognized that hate-motivated violence causes distinct harms. First, a person's being selected as the victim of violence by reason of his or her actual or perceived race, religion, et cetera, causes particular harm that is arguably more severe than the usual harm suffered by a victim of crime. Secondly, harm is caused to the group of which the person is a member. The impact on other members of the group is the creation of fear about their place in society. Like the crimes of hate propaganda, crimes of hate-motivated violence offend the fundamental values of both human dignity and equality. While these arguments support creating a sentencing enhancement provision for hate-motivated behavior in relation to general crimes, the greater these distinct harms, the greater the need to denounce such conduct most forcefully by the creation of a specific crime or crimes of hate-motivated violence.
In this context too, the provisions dealing with sexual assault in the Criminal Code may be useful. The present Code not only prohibits general crimes of assault; it also has created crimes of sexual assault.<222> It may be argued that the creation of the sexual assault provisions was required to replace the old, outdated laws governing rape, which is substantially different from adding new crimes to penalize criminal conduct already caught by traditional crimes. But clearly, one of the purposes of the crimes of sexual assault is to denounce such conduct more severely than regular assault. Hence, the punishment set out for such criminal conduct is more severe than for other assaults. For example, the crime of aggravated assault in Code, section 268 sets out a maximum penalty of 14 years' imprisonment; in contrast, the crime of aggravated sexual assault in Code, section 273 sets out a maximum penalty of life imprisonment. Arguably, it would be equally valid to create a separate crime or crimes of hate-motivated violence where a policy decision is made that such conduct is deserving of more severe punishment.
The second test of criminality is: Does the act in some way contravene other fundamental values so as to be harmful to society? This is essentially an alternative to the first test. Clearly, attacks on members of minority groups have the effect~of creating fear among other members of the group, thereby sowing the seeds of disharmony within society. In this way, society itself is harmed by hate- motivated violence.
The third test is: Will resorting to criminalization offend our fundamental values? In this regard, it has already been strongly argued that the creation of such crimes would not offend the _Canadian Charter of Rights and Freedoms_.
The fourth test is: Would resorting to the criminal law make a significant contribution in dealing with the problem? In this regard, certain criticisms of the use of hate crimes statutes have been made by American commentators. As noted earlier it is claimed_given what is known about the psychological make-up of such offenders_that such statutes will not deter such offenders; that they will not decrease prejudice but more probably increase it; that they could be used against the very minorities they are designed to protect; that such crimes are complex and difficult to define; and that the difficulty of proving a hateful motive will make prosecutors wary about applying such crimes, as opposed to general crimes, to prosecute hate-motivated offenders.<223>
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