This paper has attempted to examine comprehensively the issue of hate-motivated violence, by looking at the treatment of such criminal conduct in Canada and in certain other foreign jurisdictions, and by looking at various proposals for reform in this area in Canada and in those other jurisdictions.
The paper argues that the issue of hate-motivated violence is deserving of public policy attention, given past and recent incidents of hate-motivated violence in this country, Canada's multicultural heritage, and the attention given this problem in other countries.
How should the criminal law combat hate-motivated violence? Should it do nothing? Or is it best to use the existing criminal law, which, through judge-made sentencing practice, treats evidence of such motivation as an aggravating factor to increase the penalty for committing the basic crime? Or are better solutions available?
The paper presents a range of policy options for consideration. Briefly summarized (as they are more fully explained in the previous chapter), these options are:
1. Unlike the present law, refuse to treat a person who has committed a crime by reason of hatred of a person's actual or perceived race, religion, ethnic origin, et cetera, more severely than any other person who commits the crime without such hateful motivation.
2. Create a federal hate crime statistics statute requiring the collection of national statistics on hate-motivated violence in Canada.
3. Continue the present law and have judges increase the penalty where the crime was hate-motivated, in accordance with judge-made sentencing principles established by case law.
4. Use such hateful motivation as an aggravating factor to increase penalty as part of a comprehensive regime of aggravating factors set out in sentencing guidelines or in the Criminal Code, or create a specific statutory formulation in the Code to increase the penalty for any crime committed by such hateful motivation.
5. Create an automatic penalty enhancement for certain crimes, such as mischief and assault, built into the actual definitions of these crimes, where these crimes are committed by reason of an attacker's hatred of the victim's actual or perceived race, colour, religion, ethnic origin, et cetera.
6. Create a specific crime of institutional or religious vandalism. And, create a crime of bias intimidation, which would have the effect of creating a more severe penalty where certain general crimes, such as assault or threatening harm, are committed by reason of hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera.
7. Create a general crime of hate-motivated violence that would catch most criminal conduct that is hate-motivated and that would impose a severe penalty for committing such criminal conduct.
8. Redefine the crime of first-degree murder so that it includes a murder committed by reason of hatred of a person's actual or perceived race, colour, religion, ethnic origin, et cetera.
9. Ensure that, if a separate crime (or crimes) of hate- motivated violence is created, incitement to commit such violence is also caught by the criminal law.
10. Ensure that the maximum penalty imposed in relation to hate-motivated behaviour preferably operates in a principled way, such as by increasing the maximum penalty to one and one-half times that for committing the basic crlme.
11. As regards the mental element for a crime of bias- motivated conduct, it should be required to be proved that the accused purposely or recklessly harmed the victim because of hatred of the victim's race, religion, colour, et cetera. However, expanding the crime to include negligent behaviour should also be considered.
12. Define any sentencing provision or crime of hate- motivated violence in such a way that it protects members of those groups identifiable on the basis of their race, national or ethnic origin, colour, religion, sex, age, mental or physical disability, or sexual orientation.
13. Ensure that measures taken by the criminal law to combat hate motivated violence protect those who are attacked because of their support for members of those identifiable groups.
14. Consider giving a judge at a trial of a person accused of committing hate-motivated violence the power to award punitive damages to the victim of the crime.
15. Consider creating a crime of violating the constitutional rights of a person.
The paper inquires into the advantages and disadvantages of each approach. Refusing to take at all into account evidence of hateful motivation is dismissed as an untenable approach. The more difficult question is: Does fidelity to the principles governing the use of the criminal law require that law to address this conduct by enhancing the penalty in relation to currently existing crimes (however this may be structured)? Or is it justifiable to create a separate crime or crimes of hate-motivated violence?
The arguments against creating a crime or crimes of hate- motivated violence include the view that the conduct is already covered by existing crimes such as mischief, assault or murder, so that creating new crimes is not only unnecessary, but also a violation of the fundamental principle of restraint in the use of the criminal law; and that these crimes would have little or no deterrent effect on those who would commit such acts.
However, considering the seriousness of the harm caused to the victim, the victim's group, and society as a whole arising from such acts of violence, considering the need to affirm the fundamental values of equality and human dignity, and considering Canada's international commitments to combatting racism and its national commitment to the development of a multicultural society, the paper argues that it may well be justifiable to create a separate crime or crimes of hate-motivated violence. Whether or not this approach is accepted, it is to be hoped that the range of options presented in this paper will inform the reader about possible avenues to reform.
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