HATE
CRIMES
Hate crimes are crimes in which the offender is
motivated by a characteristic of the victim that identifies the victim as a
member of a group towards which the offender feels some animosity. The problem
of hate crime is a truly global phenomenon and Canada
is no exception. Because they are directed both at a group and an individual
victim, hate crimes carry an element of harm that is not present in other kinds
of offending. For this reason, many jurisdictions have passed legislation
increasing the penalties for crimes motivated by hate. The Sentencing Reform
Bill (C-41) in Canada
is an example of this kind of statute. Similar legislation is to be found in
the United States
and other countries.
The Criminal Code of Canada says
a hate crime is committed to intimidate, harm or terrify not only a person, but
an entire group of people to which the victim belongs. The victims are targeted
for who they are, not because of anything they have done.
Hate crimes involve intimidation, harassment, physical force or threat of
physical force against a person, a family or a property.
Sections 318 and 319 of the Criminal Code of Canada address hate crimes.
Under Section 318, it is a criminal act to "advocate or promote
genocide" - to call for, support, encourage or argue for the killing of
members of a group based on colour, race, religion or
ethnic origin. As of April 29, 2004, when Bill C-250, put forward by NDP MP Svend Robinson, was given royal assent, "sexual
orientation" was added to that list.
Section 319 deals with publicly stirring up or inciting hatred against an
identifiable group based on colour, race, religion,
ethnic origin or sexual orientation. It is illegal to communicate hatred in a
public place by telephone, broadcast or through other audio or visual means.
The same section protects people from being charged with a hate crime if their
statements are truthful or the expression of a religious opinion.
The law (subparagraph 718.2(a)(i),
to be specific) encourages judges to consider in sentencing whether the crime
was motivated by hate of: the victim's race, national or ethnic origin,
language, colour, religion, sex, age, mental or
physical disability, sexual orientation or any other similar factor.
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Criminal Code of Canada
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Criminal Code of Canada
Section 318: Hate Propaganda
(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,
(a) killing members of the group; or
(b) 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.
Section 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
(a) an indictable offence and is liable to imprisonment for a term not
exceeding two years; or
(b) 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
(a) an indictable offence and is liable to imprisonment for a term not
exceeding two years; or
(b) an offence punishable on summary conviction.
Defences
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an
opinion on a religious subject;
(c) 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
(d) 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.
Forfeiture
(4) Where a person is convicted of an offence under section 318 or subsection
(1) or (2) of this section, anything by means of or in relation to which the
offence was committed, on such conviction, may, in addition to any other
punishment imposed, be ordered by the presiding provincial court judge or
judge to be forfeited to Her Majesty in right of the province in which that
person is convicted, for disposal as the Attorney General may direct.
Exemption from seizure of communication facilities
(5) Subsections 199(6) and (7) apply with such modifications as the
circumstances require to section 318 or subsection (1) or (2) of this
section.
Consent (6) No proceeding for an offence under subsection (2) shall be
instituted without the consent of the Attorney General.
(7) In this section,
"communicating" includes communicating by telephone, broadcasting
or other audible or visible means;
"identifiable group" has the same meaning as in section 318;
"public place" includes any place to which the public have access
as of right or by invitation, express or implied;
"statements" includes words spoken or written or recorded
electronically or electro-magnetically or otherwise, and gestures, signs or
other visible representations.
Subsection 718.2
A court that imposes a sentence shall also take into consideration the
following principles:
(a) a sentence should be increased or reduced to account for any relevant
aggravating or mitigating circumstances relating to the offence or the
offender, and, without limiting the generality of the foregoing,
(i) 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,
(ii) evidence that the offender, in committing the offence, abused the
offender's spouse or common-law partner or child,
(iii) evidence that the offender, in committing the offence, abused a
position of trust or authority in relation to the victim,
(iv) evidence that the offence was committed for the benefit of, at the
direction of or in association with a criminal organization, or
(v) evidence that the offence was a terrorism offence
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders
for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not
be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive
sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in
the circumstances should be considered for all offenders, with particular
attention to the circumstances of aboriginal offenders.
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Foundations of hate crimes
The foundation of Canada's
hate laws can be found in several international treaties which Canada
has ratified. The Universal Declaration of Human Rights, proclaimed by the
United Nations General Assembly in 1948, established the basic principles upon
which subsequent anti-racist legislation would be based, including legislation
designed to afford identifiable groups protection against racist attacks.
Hate propaganda, the promotion of hatred against identifiable groups, became
a criminal offense in Canada
in 1970, when the laws were adopted as amendments to the Criminal Code
(Sections 318-320). That same year, Canada
ratified the International Convention on the Elimination of All Forms of Racial
Discrimination, which had been adopted by the UN in 1965, and signed by Canada
in 1966. The convention specifically requires states to criminalize hate
propaganda and other activities which promote racism. Article 4 of the
Convention declares:
State parties, with due regard to the principles
embodied in the Universal Declaration of Human Rights:
Shall declare an offense punishable by law all
dissemination, as well as all acts of violence or incitement such as acts
against any race or group of persons of another color or ethnic origin, and
also the provision of any assistance to racist activities, including the financing
thereof.
Canada is
also a signatory to the International Covenant on Civil and Political Rights,
which came into force in 1976 and specifically prohibits hate propaganda. Its
Article 20(2) reads: "Any advocacy of national, racial or religious hatred
that constitutes incitement to discrimination, hostility or violence shall be
prohibited by law." The Canadian Human Rights Act also addresses the issue
of hate propaganda. Section 13 specifies: It is a violation of the act
To communicate telephonically or to cause to be so
communicated in whole or in part by means of the facilities of a
telecommunication undertaking within the legislative authority of parliament
[i.e. the telephone system and all electronic media] any matter 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 [race, national or ethnic origin, color,
religion, age, sex, sexual orientation, marital status, disability, family
status, and conviction for which a pardon has been granted].
Public policy
principles:
A balance of individual (free
expression) and group rights (protection of minorities).