An Exploration of the Needs of Victims of Hate Crimes

2. Background

2. Background

This section provides the historical and current background to understand hate crimes in Canada and the needs of victims of hate crimes. The relevant legislation, international and domestic, are outlined, as well as the federal initiatives that provided the impetus for this work.

According to the 2001 report entitled, Hate Crime in Canada: An Overview of Issues and Data Sources (CCJS), the concept of "hate" as a "social/criminal policy concern" became apparent in the 1965 Report to the Minister of Justice of the Special Committee on Hate Propaganda in Canada. The report of the Cohen Committee, as it was called, argued that the results of hate crime may affect only a few victims directly, but that "such activity could create a climate of malice and destructiveness to the values of our society" (Janhevich 2001, 7). This recognition, more than 40 years ago, has resulted in specialized policing units, research studies, and legislation that have all focused on the phenomena.

Hate crimes have the potential to create communities of victims. While a hate-motivated crime committed against a single person may adversely affect that individual, hate crimes also can create scores of secondary victims. These victims may be family and friends, or others who identify with the group to which the victim identified. Hate crimes promote fear and insecurity among minority communities, whether the crimes are based on skin colour, race, religion, ethnic origin, or sexual orientation. Victims of hate crime can also be doubly victimized, as not only have they had the experience of the crime, but also must deal with the fact that this crime was an attack not only to the physical person or private property, but an inherent attack on the victim’s identity.

2.1 Definition

For the purpose of this paper, the term "hate crime" (or "hate motivated crime") will be
defined as:

…a criminal violation motivated by hate, based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor.

–Uniform Crime Reporting (UCR) Survey 2.2 Definition[6]

In some research and legislation, the term "bias crime" is used to represent what is considered as hate crime.  For the purposes of this paper, bias crime and hate crime will be used interchangeably, both referring to hate crime, as defined above.

2.2 Canadian Legislation

In the past decades, the Canadian government has introduced several measures aimed at rendering hate crime both illegal and socially unacceptable. As described in Mock (2000), Canada has founded its laws against hate on several international agreements. In 1948, Canada signed the Universal Declaration of Human Rights, which has become the basis of all anti-discrimination legislation in Canada. The International Convention on the Elimination of All Forms of Racial Discrimination was originally signed by Canada in 1966, followed by accession in 1970, and adoption into force in Canada later that year. Other international agreements which Canada is a party to include: the Convention on the Elimination of All Forms of Discrimination against Women (signed 1980, accessed in 1981, entered info force 1982); and the International Covenant on Economic, Social, and Cultural Rights (signed and accessed 1976, entered into force later that year).[7]

Hate crime is addressed through sections 318 and 319 of the Criminal Code (R.S. 1985, c.C-46), as well as through the sentencing provisions of the Criminal Code, found in section 718.2 (a)(i).

Section 318 refers to the crime of advocating or promoting genocide against an "identifiable group." Section 319 refers to the crime of wilfully promoting hatred against an identifiable group.

Advocating Genocide
318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Definition of "genocide"
(2) In this section, "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,
  1. killing members of the group; or
  2. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
Consent
(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.
Definition of "identifiable group"
(4) In this section, "identifiable group" means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation. R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1.
Public incitement of hatred
319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
  1. an indictable offence and is liable to imprisonment for a term not exceeding two years; or
  2. an offence punishable on summary conviction.
Wilful promotion of hatred
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
  1. an indictable offence and is liable to imprisonment for a term not exceeding two years; or
  2. an offence punishable on summary conviction.
Defences
(3) No person shall be convicted of an offence under subsection (2)
  1. if he establishes that the statements communicated were true;
  2. if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
  3. if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
  4. if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

Both sections make use of the term "identifiable group," which is defined in s.318.4 as, "any section of the public distinguished by colour, race, religion, ethnic origin, or sexual orientation" (Criminal Code 318.4).

Further, there is a specific provision found in s.430 (4.1) with respect to mischief against property used for religious worship:

430. (1) Every one commits mischief who wilfully

  1. destroys or damages property;
  2. renders property dangerous, useless, inoperative or ineffective;
  3. obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
  4. obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

(4.1) Every one who commits mischief in relation to property that is a building, structure or part thereof that is primarily used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin,

  1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
  2. is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

(4.2) Every one who commits mischief in relation to cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, done at The Hague on May 14, 1954, as set out in the schedule to the Cultural Property Export and Import Act,

  1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
  2. is guilty of an offence punishable on summary conviction.

The sentencing provisions of the Criminal Code found in Section 718.2 (a)(i) provide that courts should take into consideration at sentencing crimes which show "evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor" (Criminal Code 718.2 (a)(i)).

Section 15 (1) of the Canadian Charter of Rights and Freedoms (Schedule B, Const. Act, 1982 c.11) states that: " every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

Courts have upheld the premise that section 15 of the Charter also provides protection from discrimination based on analogous grounds, such as sexual orientation.

The Canadian Human RightsAct (R.S., 1985, c.H-6) applies to federally-regulated sectors and was first introduced in 1985. The legislation defines the "prohibited grounds of discrimination" as "race, national or ethnic origin, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon is granted" (Canadian Human Rights Act, s. 3(1), hereafter CHRA).

The definition found in Section 13(1) of the CHRA was amended in 2002 to make clear that hate messages include Internet messages. The section provides that it is

…a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

Other pieces of legislation have been used in efforts to prevent hate motivated crime, such as the Immigration and Refugee Protection Act (IRPA 2001, c.27), which allows border officials to prevent known hate activists or propagandists to enter the country. Inadmissibility rules allow border officials to refuse entry based on the fact that a known person or group of persons might commit a crime which would be considered an indictable offence in Canada (IRPA, s. 35 (2)) or who may belong to a known criminal organization (IRPA, s. 37 (1)).

The definition of hate crime in Canada has been informed by: international covenants; provisions in the Criminal Code and other legislation; and through jurisprudence, notably the Supreme Court of Canada. Two Supreme Court of Canada cases have set clear precedents in terms of hate motivated crime, R. v. Keegstra (R. v. Keegstra [1990] 3 S.C.R. 697) and R. v. Andrews (R. v. Andrews, [1990] 3 S.C.R. 870). Both cases involved hate propaganda and the incitement of hatred. The Supreme Court handed down these verdicts simultaneously, upholding the constitutionality of Section 319 of the Criminal Code and demonstrating "the delicate balance of individual and group rights that must be preserved to maintain a free and democratic Canadian society" (Mock 2000, 6). The Supreme Court of Canada defined "hate" in R. v. Keegstra (R. v. Keegstra [1990] 3 S.C.R. 697 at 777) as "an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect, and made subject to ill-treatment on the basis of group affiliation."

Each province and territory also has human rights legislation that prohibits discrimination based on numerous grounds. According to provincial and territorial legislation on human rights, the prohibited grounds for discrimination include: ancestry, ethnicity, language, religion, age, gender, sexual orientation, disability, political association or belief, marital status, income, criminal charges or record and affiliations.

Although there has been significant evolvement in the rights of victims of crime in general over the past two decades, few of these legislative responses pertain directly to the rights and needs of victims of hate motivated crime. There is a demonstrable effort to control and prosecute the offender, yet less has been done in recognition of the needs of the victim, their friends and families, and the community or group with which they identify. Further, as Field notes in her report prepared for Justice Canada, " … there are serious limitations to relying solely or principally on the law to successfully combat hate/bias." (Field 2001, 35). [8]

Julian Roberts, in his 1995 report entitled, Disproportionate Harm: Hate Crime in Canada, An Analysis of Recent Statistics, supports the concept of a uniform, national approach to the collection of data with regard to hate crime. Bill C-445 was introduced in 1993 and provided for "the collection of statistics respecting: incidents investigated by police forces where those incidents manifest evidence of bias against certain identifiable groups". It would have been called the Bias Incidents Statistics Act (Roberts 1995), but was never passed.

2.3 United States Legislation

As much of the research into the experiences of victims of hate crimes comes from the United States, it is important to have a brief knowledge of the legal basis of hate crime in the United States. Similar to Canada, there is no "uniform" definition of a hate crime in the United States, "nor is there a standard number of protected categories of victims in federal or state hate crime laws" (Romaine 2002, 115). There are, however, several federal statutes which define hate crime, particularly Title 18 of the United States Code, Section 245, enacted by the United States Congress in 1968; The Hate Crimes Statistics Act (1990); the Hate Crime Sentencing Enhancement Act (1994); and the Violence Against Women Act (1994); as well as other pieces of federal legislation. While legislation across the fifty states is not consistent, there are four identifiable types of hate crime legislation used by states: "sentence enhancement statutes, specific acts statutes, data collection statutes, and civil remedy statutes" (Romaine 2002, 128).

It is important to note that there have been several congressional attempts to include "sexual orientation" to the list of prohibited grounds in Title 18 of the United States Code, Section 245 (1968); however, this has yet to be successful.

2.4 An Anti-Racism Action Plan for Canada

The impetus for this work stems from Canada’s commitment to victims of crime through the Victims of Crime Initiative which was launched in 2000. As well, A Canada for All: Canada’s Action Plan Against Racism was launched in 2005 with a specific justice component that includes attention to the needs of victims of hate crimes. The following sections describe these two initiatives.

In 2001, Canada participated in the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerancein Durbin, South Africa. In 2002, the country reported to the UN Committee on the Elimination of all Forms of Racial Discrimination as part of its responsibility to document how it implements the International Convention on the Elimination of All Forms of Racial Discrimination (Canadian ratification in 1970). The Committee identified a compelling need for domestic action to combat racism.

In 2003, the UN Special Rapporteur on Racism called on Canada to develop an action plan to combat racism and noted wide socio-economic gaps in Canadian society, Aboriginal issues and the challenges facing visible minorities.

Announced on March 21, 2005, A Canada For All: Canada's Action Plan Against Racism, is an approach to ensure that Canadian core values of multiculturalism, mutual respect, fairness and inclusion are supported and preserved. It represents the first-ever horizontal, coordinated approach across the federal government to combat racism and covers initiatives and strategies already under way in many departments.

The Minister of Canadian Heritage has the lead for A Canada for All: Canada’s Action Plan Against Racism and reports to Canadians through the Annual Report on the Operation of the Multiculturalism Act. Heritage Canada, Justice Canada, Citizenship and Immigration, Public Safety and Human Resources and Social Development Canada are primarily involved. New or expanded initiatives are to be undertaken to address racism as it affects: youth in school, employers, the workplace, the justice system, policing services, victims and perpetrators of hate crimes and the development of government policies, programs and services for Canadians.

A Canada For All: Canada's Action Plan Against Racism is based on the principle of substantive equality which involves equality of outcome and not simply equality of opportunity. This action plan seeks to eliminate racist behaviours and attitudes and to help close the gap in socio-economic outcomes for all Canadians.

The action plan is guided by three objectives:

  1. to strengthen social cohesion through anti-racism measures;
  2. to further the implementation of Canada's human rights framework; and
  3. to demonstrate federal government leadership in the international fight against racism.

Each objective reinforces key elements to strengthen Canada's social foundations. Partnerships across different sectors of society are created or enhanced, and this in turn serves to strengthen our economy.

Taking decisive action to combat racism and discrimination is part of Canada's commitment to respond to international expectations and to encourage other states to follow suit. While the primary purpose of Canada's Action Plan Against Racism is to advance a domestic objective - building an inclusive and equitable society - it also demonstrates Canada's commitment to achieving the anti-racism principles of the World Conference Against Racism.

Within its own jurisdiction, the Government of Canada is committed to addressing the impacts of racism and related forms of discrimination. It is doing this through policies, programs, and actions that promote an inclusive and multicultural society. The Government also places high priority on the collection of meaningful data which allows Canada to identify best practices that can be shared nationally and internationally.

The National Justice Initiative Against Racism and Hate – a distinct component of the National Action Plan Against Racism – is a policy-oriented and programmatic initiative. The National Coordinator for the National Justice Initiative is working with the criminal, constitutional, international, administrative and civil regimes against hate to foster protection required for victims of hate.

2.5 The Victims of Crime Initiative

The Victims of Crime Initiative is Justice Canada's response to the Standing Committee of Justice and Human Rights Report Victims' Rights - A Voice Not a Veto. Established informally in late 1999, with funds provided in 2000, it was initially given a five-year mandate that was renewed for another five years from 2005-2010. The overall objective of the Initiative is to improve the experience of victims of crime in the criminal justice system by:

  1. ensuring victims and their families are aware of their role in the criminal justice system and the services and assistance available to support them;
  2. enhancing the capacity of the Department of Justice to develop policy, legislation, and other initiatives that take into consideration the perspectives of victims (act as a "victim's lens");
  3. increasing the awareness of criminal justice personnel, allied professionals, and the public about the needs of victims of crime, legislative provisions designed to protect them, and the services available to support them; and
  4. developing and disseminating information about effective approaches both within Canada and internationally to respond to the needs of victims of crime (become a centre of expertise).

The Policy Centre for Victim Issues (PCVI), of the Department of Justice, was established to fulfill this mandate. By supporting provinces and territories that work with victims, the Initiative is working to enhance the role of victims within the criminal justice system.

The Victims of Crime Initiative and the National Justice Initiative Against Racism and Hate are working together to fully understand and respond to the needs of victims of hate crimes. This report represents a preliminary step in that direction.