Print Media Treatment of Hate as an Aggravating Circumstance for Sentencing: A Case Study
Newspaper items referring to the aggravating sentencing circumstance (N=15), and appearing after the cours decision emphasised the precedent-setting nature of the decision and its ic value. This section discusses these themes, as well as the implications of recognising the ic value of the law. The content of several items expressing discontent with the decision is also discussed.
The Decision was Precedent-Setting
As found with many pre-sentence items, several post-sentence items cited the precedent setting nature of Miloszewski and, in the process, acknowledged the impact of the aggravating sentencing circumstance. As a Calgary Herald item (November 17, 1999: A4) noted,
Crown counsel Ron Caryer said the ruling was a benchmark in that it was the first time Section 718.2 of the Criminal Code which allows for a more severe penalty for hate crimes -had been used in a crime of this magnitude. The finding he made is a benchmark, said Caryer. If indeed a court finds a crime is hate motivated, then that raises the standard (see also, Bolan, Vancouver Sun, November 17, 1999: A1 emphasis added).
Another item concurred:
Crown counsel Ron Caryer said Stewars decision was precedent setting because he applied Section 718.2 of the Criminal Code, passed in 1996, in determining the sentence. 'There is no question it is the biggest case of its kind,' Caryer said. 'These are very significant sentences'…Stewart stressed that the Criminal Code provision defining hatred as an aggravating factor in sentencing 'is a direction to the courts of this country, as expressed by Parliament, that a sentence ought to be increased if the offence was motivated by bias (Bolan, Vancouver Sun, November 17, 1999: A1).
One post-sentence item related the importance of the sentencing decision for future cases dealing with hate motivation. Crown counsel was quoted as saying that the sentences are
"…considerably stiffer than normal and pointed out Judge Stewars statement that hate-motivated crime is the worst kind of manslaughter. "He continued,
"those comments will have a significant effect on future sentences for crimes dealing with hate" (Armstrong, Globe and Mail, November 17, 1999). Another item, primarily about the decision of two out of the five men to appeal their decision, referred to the sentence as "unprecedented"and the first "major" case where a judge acknowledged aggravating factors when increasing a sentence
"beyond those that would otherwise have been given" (Bolan, Vancouver Sun, March 21, 2000: B1 -emphasis added).
One newspaper item differed from others in that it focused entirely on subparagraph 718.2(a)(i). Titled, "Jail Terms for Neo-Nazis 'Breathe Life' into New Law: The change compels judges to consider hate or bias in crafting new sentences,"(Bailey, Vancouver Sun, November 18, 1999), the author suggested the decision might help other judges interpret the aggravating sentencing circumstance. The item quotes the sentencing judge, who stated that the legislation is
"…more than simply a reaffirmation of existing sentencing principles…it is a direction to the courts of this country, as expressed by Parliament, that a sentence ought to be increased if the offence was motivated by bias, prejudice or hate."A lawyer was quoted saying the decision "
breathes life"into the legislation: "
If there are any crimes like this, even on a lesser matter, the Crown will bring out the sentence and say the judge should have to regard to this case" (Bailey, Vancouver Sun, November 18, 1999: A5).
Several post-sentence newspaper items emphasised the ic value of the Miloszewski decision. The ic function of the law represents the
"…state's sending a signal on behalf of a 'popular consensus' about the moral status of a particular act. In the case of criminalization, the message to be conveyed is that this particular act is abhorrent" (Snider, 1991: 254). In Miloszewski the message was that society will not tolerate hate-motivated crimes.
One post-sentence item quoted the Crown as saying:
"I would hope that it would send a clear message. The sentences are higher than what you would normally get in a manslaughter case. The judge gave a very reasoned judgement. The message is that in Canada we will not tolerate people acting out on their own intolerance" (The Province, November 17, 1999: A4). Similarly, another item also quoted Crown counsel, who suggested that the decision
"sends a message" (Moore, Toronto Star, November 17, 1999 -my emphasis). Another item quoted the sentencing judge, who stated:
…what can be achieved by what I am doing today is to send a loud, clear and unequivocal message, not only to these five accused but to others who share their views, that if they commit acts of violence against persons or property out of hatred they will be condemned and punished severely (Jamieson, Ottawa Citizen, November 17, 1999: A9 -my emphasis).
In several items Balwant Singh Gill, president of the Guru Nanak Temple, expressed satisfaction with the message delivered by the cours sentencing decision.
"That [decision] sends a message to everybody out on the street (that) anyone who commits such a hatred crime will be punished…" (Moore, Toronto Star, November 17, 1999; see also, Montreal Gazette, November 17, 1999: A10 -my emphasis). In another article, the same source stated that he was happy that the judge acknowledged that
"hatred motivated the killing and handed down more severe sentences that he would otherwise have done…I am satisfied that they [the five men] still get some imprisonment and that still sends the message out that this will not be tolerated" (Bolan, Vancouver Sun, 1999: A2 -my emphasis). However, despite this support, the President of the Temple argued the five should be jailed
"for the rest of their lives…These idiots shouldn't be on the streets" (Armstrong, Globe and Mail, November 17, 1999).
Implications of Recognising the ic Value of the Law
There were very few items that discussed what the expressive/ic function of the law could achieve in terms of addressing the incidence of hate-motivated violence and racism in society. Some items quoted the judge, who stated:
"I am not so naïve as to believe that any sentence I pronounce will eliminate racism from our society" (Jamieson, The Ottawa Citizen, November 17, 1999: A9; see, also, Vancouver Province, November 17, 1999: A4; Armstrong, The Globe and Mail, November 17, 1999). However, these items did not explore the meaning of this statement and its implications for the sentencing decision and the aggravating sentencing circumstance.
There is an important implication to the lack of discussion of what the law can achieve through its ic function. By simply reporting that the law conveys a ic message, the media eschew the question of what this value can achieve. However, feminists remind us of the limits of the law (and the criminal justice system) through their analyses of initiatives to address domestic violence. In discussing police intervention in cases of domestic violence, Currie and MacLean (1994: 312) argue that,
"[p]olice intervention is inadequate because it does not challenge the fundamental processes that perpetuate domestic violence."Similarly, Snider (1991: 306) draws attention to the fact that,
"…feminist experience with criminal law reform in the areas of domestic violence and sexual assault poses questions about the potential effectiveness of the criminal law in achieving meaningful social change in attitudes towards violence against women."With respect to Miloszewski, the arguments suggest that there is a limit to what formal legal sanctions can achieve in addressing the complex social problems that are associated with hate-motivated acts. Unfortunately, this limitation was not discussed in the print media coverage of Miloszewski -i.e., what could be achieved through the ic message and the limits of the law in addressing hate-motivated acts.
Discontent with the Sentence
Despite the fact that a majority of post-sentence items expressed support for the cours decision and for subparagraph 718.2(a)(i), several items nevertheless expressed dissatisfaction with the decision. In one item, a law professor from the University of British Columbia, who challenged the importance of the aggravating sentencing circumstance, stated that
"…prior to the amendments, most judges would have considered this as a particularly aggravating case" (Bailey, Vancouver Sun, November 18, 1999: A5).
Dissatisfaction with the judge's decision was expressed primarily through editorials and letters to the editor (non-government/official institutional sources). Although these items did not criticise subparagraph 718.2(a)(i) directly, they suggested that the punishment imposed by the court was too short and that it did not convey the appropriate (ic) message. In one editorial, titled " And Throw Away the Key,"the author argued Miloszewski was an
"ugly and cold-hearted" hate crime and that the five men deserved longer sentences. The author added:
Last week thousands of Victorians gathered at the cenotaph to pay their respect to those who fought against Nazi tyranny, against the evil and cowardice that allows moral weaklings like those in Surrey to lay blame for their own failings at the feet of strangers whose only offence it is to be different. That these neo-Nazis could one day be allowed to walk the streets of B.C. just a few short years after being convicted of a racially motivated killing is an insult to those Canadians who died for freedom (Victoria Times Colonist, November 17, 1999: A14).
In a letter to the editor the author argued that,
"no justice was done and the courts continue to milk-sop way to administer ineffective rulings" (The Province, November 18, 1999: A49). Another argued:
"if Judge William Stewart had really taken into consideration the long cultivated 'hate, fear and ignorance' shown by these skinheads, he would see that 12-15 years in prison is not nearly enough time to change their racist views, if they can be changed at all, or to ensure society is not once again vulnerable to the violent actions of these 'unrepentan criminals" (Vancouver Sun, November 19, 1999: A22). Finally, in another letter to the editor the writer expressed the view that,
"once again, our legal system rears its insane, mind-boggling and illogical head ."The writer continued,
"giving these killers the opportunity to be out on day parole in 30 months and full parole within four years serves no message to others who harbour such hatred and condone violence" (Vancouver Sun, November 22, 1999: A15 -emphasis added).
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