In contrast with the proposal that the mens rea requirement for the crime be that of "purpose" or "recklessness", it may be argued that a crime or crimes of hatemotivated violence should include negligent behaviour, on the ground that the criminal law should be as vigilant as possible in combatting such violence. For example, the Australian Law Reform Commission has recommended the creation of a crime of racist violence that includes both subjective and objective fault requirements. In other words, the crime would catch both intentional harm to the members of an "identifiable group" and- harm that the accused "ought reasonably to have foreseen" would be caused to members of the group, provided that the conduct was likely to cause members of the group to fear for their physical safety because they are members of the group.<242> Our criminal law, as previously noted, does criminalize certain negligent behaviour; for example, the crime of dangerous driving (Code, section 249). However, the disadvantage of extending a crime of hate-motivated violence to include negligent conduct is that it is arguably inconsistent with the rationale for treating hate crimes as separate from other crimes in the first place. This rationale is that it is wrong to harm someone by reason of hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera. A crime of hate- motivated violence that includes negligent conduct, however, effectively denies that the element of hateful motivation is necessary; instead, the focus of the crime becomes the effect that the conduct has had on the members of the group put at risk by such behaviour. In short, such a law would appear to criminalize conduct that was the result of unconscious racism. In such a situation, the crime arguably has a minimal deterrent impact.<243>
Option 12. The definition of either a sentencing provision or a specific criminal law relating to hate- motivated violence should protect a person who is a member of a group identifiable on the basis of race, national or ethnic origin, colour, religion, sex, age, mental or physical disability, or sexual orientation.
The next issue is how to define the members of an "identifiable group" who should be protected by the criminal law. There are arguably three ways to proceed: continue to apply the same definition of "identifiable group" that now exists with regard to the crimes of hate propaganda; expand the definition of "identifiable group" to include those groups explicitly mentioned by the equality guarantee of the Charter (i.e., subsection 15(1)); or expand the definition of "identifiable group" to include even more groups than those explicitly set out in the _Charter_.
The benefits of the first approach are its familiarity (not a useful argument to advance when one is deciding if the law should be reformed), and its consistency with existing law. The latter benefit should not be dismissed easily. It would seem somewhat strange if the definition of "identifiable group" for the purpose of a crime or crimes of hate- motivated violence were different from that used in defining the crimes of hate propaganda. However, the consistency argument works both ways: If an expanded definition of "identifiable group" were to be created for a crime of hatemotivated violence, consistency in approach would still exist so long as, at the same time, the definition of "identifiable group" for the crime of hate propaganda were changed accordingly.
The benefit of the second approach is that it creates more consistency between the treatment of members of groups singled out for protection by the criminal law and that of members of groups explicitly protected from discriminatory treatment under the equality guarantee set out in subsection 15(1) of the Charter. Its disadvantage is, first, that the list of criteria set out in the equality guarantee remains an ad hoc one (since the criteria are not listed in a restrictive manner) and, secondly, that it expands the definition of groups to include some whom it would seem unnecessary to include because there is no evidence of attacks motivated by hatred of certain immutable characteristics set out there (e.g., the categories of age, or physical or mental disability). Regarding the category of sex, it is submitted that using criminal law to prosecute a misogynist who harms women is, in principle, justifiable.
Concerning the third approach, if one of the rationales for protecting members of certain groups is to protect those who appear to be most at risk of physical violence by reason of being a member of that group (clearly a justifiable reason for invoking the use of the criminal law), then it would be most reasonable to include the category of "sexual orientation" within the definition of "identifiable group". Thus, by adding this category to that recommended in the previous paragraph, the result would be to have "identifiable group" mean a group identifiable on the basis of race, national or ethnic origin, colour, religion, sex, age, mental or physical disability, or sexual orientation.
However, in the event that such a broad list of criteria is seen to be unacceptable because it includes too many groups who are not at risk of hatemotivated violence, it would nonetheless still be justifiable to add the category of "sexual orientation" to whatever narrower list of criteria is selected. There does not appear to be any disadvantage to including "sexual orientation" as a group whose members should be protected from hate-motivated violence.
Option 13. The definition of a sentencing provision or of a specific crime or crimes of hate-motivated violence should protect not only those who are members of the identifiable group, but also those who are attacked because of their support for members of such groups. It should not be restricted so as to protect only members of minority groups.
This option sets out whom else the law should protect other than members of those groups set out in Option 12. Obviously, the law should catch the usual situation where the victim is a member of the identifiable group that the person hates; for example, a white supremacist attacking a young black person. But, in addition, it should also protect a person who is attacked by reason of the attacker's hatred of the actual or perceived race, colour, religion, ethnic origin, et cetera, of someone who is not the victim. For example, as the Australian Human Rights and Equal Opportunity Commission points out, another category of racist violence is that of violence directed against people who have "made a public stand against racism and racist violence. These people had been attacked because of their anti-racist stance and not because of their ethnicity."<244> In principle, it seems only logical that any criminal law prohibiting hate-motivated violence should protect as much as possible all victims of such violence. This part of the option does not appear to have any disadvantages.
Another, more controversial, issue is whether such a
criminal law should be defined so that, in effect, members
of minority groups would not be caught by the definition of
the crime. As previously noted, some American legal
commentators have suggested reforms to this effect that
include a presumption of racist intent, which a white
accused would have to rebut.<245> Such a proposal has
obvious disadvantages. Constitutional problems arise: it
appears to contravene the presumption of innocence and the
equality guarantee of the Charter.<246> Also, the creation
of such a crime ignores the real possibility that a hate-
motivated attack could be made against someone who is white.
(This occurred in the Mitchell case recently decided by the
United States Supreme Court.) Finally, the creation of such
a crime could very well be counterproductive by creating
resentment among the majority of the population that
minorities are being singled out for special protection by
the criminal law.
7.4.5 Options Relating to Ancillary Issues
7.4.5 Options Relating to Ancillary Issues
Two ancillary issues are addressed here: the extent to which the criminal law should be used to provide damages to a victim of hate-motivated violence, and the utility of providing for a crime of violating a person's constitutional rights.
Option 14. Consideration should be given, as ancillary to a crime or crimes of hatemotivated violence, to creating a damages provision that would allow a criminal court, on completion of a hate-crimes trial, to award punitive damages to the victim of such violence.
This option is essentially a criminal law variation of American proposals and enactments that enable a victim of racist violence to sue in a civil action for damages caused by the attack. For example, such a provision is provided for in the ADL model legislation. These proposed civil remedies are quite broad. They include a civil action for damages, which also allows for punitive damages, payment of the reasonable fees of the prosecutor, parental liability for a judgment against a minor, and the ability to obtain an injunction as well as any other form of equitable relief.<247> Some American states have also created the ability to obtain civil damages for a hate-motivated attack.<248>
Is the criminal law an inappropriate forum for the creation of a punitive damages mechanism? Although rare, the power to award punitive damages is not unknown to our criminal law. In electronic surveillance cases, Code, section 194 provides, in part, that a court that convicts a person of crimes such as unlawful interception or disclosure of a private communication may order, on the application of an aggrieved person, that the aggrieved person be paid an amount not exceeding five thousand dollars as punitive damages. By analogy, one could argue that a punitive damages section should be created and included as a necessary component of any proposed crime of hate-motivated violence. After all, a victim of hate-motivated violence has been subjected to a particularly heinous attack, and may not be financially able to pursue a civil action. (An additional remedy could be the possibility of obtaining injunctive relief against such attackers, particularly if the violence is part of an ongoing activity.)
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