This gives rise to another issue: Should a crime of hate- motivated violence cover not only acts of violence, but also hate-motivated omissions that cause harm? For example, consider the case of a doctor who is under a duty of care to care for his or her patient. If the doctor were to fail to provide the requisite duty of care by reason of hatred of the patient's actual or perceived race, colour, religion, ethnic origin, et cetera, should not this conduct be caught by a crime of hate-motivated violence? The advantage of this approach is that it would ensure that the criminal law comprehensively addresses hate-motivated violence of all kinds. However, the disadvantage is that such cases (if they ever occur) would be rare indeed, and that it would be more useful to have the law concentrate on the conduct that is targeted by state laws, courts, and legal commentators when discussing hate-motivated violence -- acts of violence.
The use of broad terminology has other disadvantages. A broadly defined crime or crimes of hate-motivated violence, without more clarity, could stretch the bounds of credulity. As Chief Justice Rehnquist stated in Wisconsin v. Mitchell when discussing the Wisconsin hate crimes statute, "[t]o stay within the realm of rationality, we must surely put to one side minor misdemeanour offenses covered by the statute, such as negligent operation of a motor vehicle . . . for it is difficult, if not impossible, to conceive of a situation where such offenses would be racially motivated."<233> And this leads to the most serious disadvantage of this approach. The more broadly defined a crime or crimes of hate-motivated violence, the more it is arguable that the unity and cohesion of the present Code are lost because what is being created, in effect, is a separate parallel criminal code relating to bias-motivated conduct. A largescale duplication of many of the crimes set out in the present Code would result, for the sole purpose of comprehensively addressing hate-motivated violence. In this sense, it could be said that the pursuit of general principle in relation to hate-motivated crimes leads to an ultimate absurdity.
Option 8. As regards the crime of murder, present Code, section 231 should be amended to provide that where a person murders another by reason of hatred of the victim's actual or perceived race, religion, ethnic origin, et cetera, that murder is first-degree murder.
This option would address the issue of hate-motivated murder, and as such, would have the benefit of denouncing the most serious kind of hate-motivated conduct. Why is this needed? A crime of hate-motivated violence that raises the penalty for basic crimes when they are hate-motivated is unsuitable in relation to the crime of murder, because murder has a mandatory sentence of life imprisonment.<234> Where the mandatory sentence is that of life imprisonment, how can one increase the sentence? Life is life.
However, a different option for reform could be made regarding the crime of murder. Section 742 of the Code sets out the punishment on conviction for the crimes, among others, of first-degree or second-degree murder. A person who is convicted of first-degree murder and sentenced to life imprisonment is generally not eligible for parole until he or she has served 25 years of the sentence. (Code, section 745 allows a person convicted of first-degree murder who has served at least 15 years of his or her sentence to apply to the Chief Justice of the appropriate province for a reduction in the number of years of imprisonment without parole.) Generally, for those convicted of second-degree murder, the eligibility for parole arises after the prisoner has served at least ten years of his or her sentence. Section 23 l sets out when murder is to be treated as first- degree murder instead of second-degree murder. Basically, first degree murder is planned and deliberate murder, although there are exceptions to this rule. For example, when the victim is a police officer or when the death of a person is caused while the accused was committing or attempting to commit a sexual assault, first-degree murder is committed.<235> To address the issue of hatemotivated murders, this option proposes that where a victim was murdered because of hatred of the victim's race, religion, et cetera, that murder should be treated as firstdegree murder, and the offender therefore the murderer should not be eligible for parole until 25 years of sentence have been served.<236>
The disadvantage of this option is that, as argued in the previous option, it may be viewed as-a means of fracturing the unity and cohesion of the present Code; although, given the limited nature of this option, this is unlikely.
Option 9. Incitement to commit hate-motivated violence should be caught by the criminal law.
This option proposes that a person who incites someone to commit hatemotivated violence, although not the perpetrator of the actual act, should be caught by the criminal law. However, there would be no need to create a specific crime to this effect because, by the operation of the present criminal law, generally a person who incites such violence would be subject to criminal liability.<237> Under present law, a person who counsels another to be a party to a crime is also a party to the committed crime and a person who counsels another to commit a crime that is not committed is also liable to be punished.<238> For example, a person who incites another person to commit murder is a party to that crime and is liable to the same criminal penalty. Similarly, a person who incites another to commit acts of hate- motivated violence would be caught by the same provisions.
The advantage of this option is that it would treat all those involved in the commission of hate-motivated crimes_whether it be the person who committed the act, or the person who incited, aided or counselled another to commit such crime_as being subject to criminal liability. To do otherwise would carve out an exception to this crime that does not exist in relation to all other crimes, and which does not appear justified in this context.
There does not appear to be a disadvantage to this option, assuming that there is agreement that a specific legislation to combat bias-motivated conduct should be created.
Option 10. The maximum penalty for committing a crime or crimes of hate-motivated behaviour preferably should be one that operates in a principled manner to increase the penalty, such as having the maximum penalty for committing a hate-motivated crime equal to one and one-half times that for committing the basic crime.
One of the difficulties in creating a crime or crimes of hate-motivated violence is how to determine the penalty for committing such a crime. For example, the ADL model legislation, in relation to its proposed crime of intimidation, specifies that the degree of criminal liability should be at least one degree more serious than that imposed for commission of the basic offence.<239> How would this principle apply in the Canadian context? For example, what would be the penalty range for simple assault, now punishable by summary conviction or by indictment for a term of imprisonment up to five years, if the assault were hate-motivated? Would the next level of punishment be equivalent to that of assault with a weapon or causing bodily harm, which is punishable by indictment for a term of imprisonment not exceeding ten years?
To avoid these difficulties, this option proposes that a more principled attempt be made to determine the proper scope of punishment in relation to a hate-motivated crime; that is, that the maximum penalty for committing such a crime should be a certain percentage greater than the maximum penalty now given for committing the basic crime. For example, the draft legislation suggested by the Australian Law Reform Commission provides that the penalty for its proposed crime of racist violence not exceed one and one-half times the penalty prescribed as a maximum penalty for the act under the law concerned.<240> This would help to promote a consistent, principled sentencing approach in relation to such crimes.
The disadvantage of this option may be that it proposes too high a penalty for the commission of such crimes: that instead of increasing the penalty range, a better approach would be to allow judges to increase the penalty closer to the maximum penalty range existing in the present law.
Option 11. The definition of a hate-motivated crime should have as its mens rea requirement that of purposely or recklessly harming a victim or vandalizing property by reason of hatred of the victim's race, religion, ethnic origin, et cetera. Alternatively, the definition of a hate-motivated crime should include in its mens rea requirement the concept of negligence.
This option outlines what the mens rea requirement for a crime or crimes of hate-motivated violence should be. Assuming that the central component of the crime would be that the attacker was motivated by hatred of a person's actual or perceived race, religion, et cetera, it would seem logical that the mens rea component of the crime would be purposely or recklessly selecting the victim for attack (or property for destruction) because of such hatred. This requirement of purpose or recklessness would be consistent with the concept that the perpetrator of such violence must be subjectively aware of what he or she was doing.<241> This "purpose" or "recklessness" requirement would exclude a definition of the crime that included the fault component of negligence.
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