Disproportionate Harm: Hate Crime in Canada

4. DISCUSSION

4. DISCUSSION

There are several reasons why we need better information on the incidence and nature of hate crimes in Canada than is currently available. First, because the magnitude of the problem has yet to be fully appreciated by many people, and one reason for this is that hate crimes are under-reported. In this respect, Canada differs from the United Kingdom, where as Fitzgerald (1995:4) notes:

we no longer need to measure the problem in order to prove that it exists. That is, despite the variation between results generated in different places by different methods, the cumulative evidence makes it impossible to deny that there is a problem.

Second, we need to understand which groups are being targeted and to allocate criminal justice resources in an efficient and effective manner. Third, better information would make it possible to evaluate the efficacy of the justice system (and community-based) response.

4.1 Hate Crime Statistics: Data Collection Issues

One conclusion, then, from the research initiative that gave rise to this report is that we need better information about the incidence of hate crimes in Canada. There are several ways that our knowledge of hate crime can be improved. One is simply to encourage more police forces and special interest groups to collect data relating to hate crime incidents. Over time, this will surely result in better data. However, inconsistencies will still remain, and in all likelihood certain forms of hate crime will remain highly under-reported. The alternative solution is to promote a truly national data-collection initiative. At this point a summary of the arguments for and against such a strategy are made.

4.2 Advantages of Collecting National Data

4.2.1 Consistency

Defining a hate or bias crime is far from easy. As noted in earlier sections of this document, a large number of definitions have been proposed and are in use in Canada and elsewhere, and it is clear that different organizations follow different approaches to data collection. There is even considerable variability between police forces (see earlier sections of this report). The result is inevitably a lack of consistency. If there were a national strategy focused upon the collection of such data, we would have a much more accurate idea of the true nature and scope of hate crime activity in the country. This knowledge would then inform policy development in terms of issues such as penalty enhancements for hate crimes, creation of new offences, revisions to the statutory maximum penalties and so forth.

4.2.2 Recognition of Harm

The principle of proportionality is central to the sentencing process in Canada. This means that the severity of sentences should be directly proportional to the seriousness of the crimes for which they are imposed. The principle of proportionality will be enshrined in a statute, as a result of the Sentencing Reform Bill (C-41)[19]. This Bill contains a provision (s. 718.1) which states that, "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Gravity can be considered the harm threatened or inflicted. Hate or bias crimes carry an added dimension of crime seriousness. This dimension includes elements such as the threat to other members of group victimized, as well as the affront to the general community (Roberts, 1994a). So long as most hate crimes (with a few exceptions) continue to be hidden from criminal justice awareness, the element of harm will not be fully reflected in sentencing patterns at the trial court level.

4.2.3 Integrating Different Components of the Criminal Justice System

When the Sentencing Reform Bill (C-41) becomes law (early in 1996), there will be an even greater need to collect accurate data about the incidence of hate crimes. One provision in the Bill (s. 718.2 (a) (i)) provides a statutory aggravating circumstance where there is "evidence that the offence was motivated by bias, prejudice or hate based on the race, nationality, colour, religion, sex, age, mental or physical disability or sexual orientation of the victim". This provision reflects current case law and is consistent with enhanced penalties for hate crimes that are found in other jurisdictions such as the United States (see Roberts, 1994a). If the aggravated penalty provision contained in Bill C-41 is to be more than purely symbolic, it will be necessary to have reliable information about hate crimes. This is what I refer to as integrating the information collecting function and the sentencing process. In fact, the successful prosecution of hate-motivated crimes will depend upon systematic investigation of evidence relating to the motivation of the offender. If this is not done, hate-motivated crimes will seldom result in the enhanced penalty prescribed by the Sentencing Bill.

There is also a strong argument to be made that better defining hate crimes will have a positive pedagogic effect on the criminal justice system and society in general. At the present time, many crimes that are motivated by hate or bias are not recognized as such by the system or in terms of social reaction. A few years ago in Toronto, a number of youths participated in the killing of a man that they believed to be homosexual. This was a clear case of a hate crime, and yet no mention of this was made in media reports at the time. According to the new sentencing Act, a harsher sentence should be imposed for a crime (in this case the conviction was manslaughter) which was motivated by hate. If acknowledgement of this were to be entered into the reasons for sentence[20], and if these reasons were then publicized, the result may well be increased public and professional awareness of hate-motivated crime.

One of the most compelling arguments in favour of national statistics is that minority groups themselves -- the people most directly affected by hate crimes -- are strongly in favour of better information regarding the incidence and prevalence of this kind of crime. Finally, many of the policy recommendations by groups such as the B'nai Brith of Canada cannot be implemented without having systematic data on hate crimes across the country.

4.2.4 Ensuring That All Target Groups are Covered

In the course of describing hate crime statistics from other jurisdictions, we have seen that hate crimes are directed at a number of different targets. By leaving the task of data collection to specific groups, we run the risk of failing to take into account hate crimes directed at groups without sufficient resources to collect such data, or groups who are not recognized by criminal justice authorities as legitimate targets of hate-motivated crime.

4.2.5 Utility to Local Communities

There is also a utility to communities in having reliable hate crime statistics. It is important for a community to know the extent of the problem, and to be able to place the problem in some kind of national context. As well, communities need to know where the problem is greatest and who is being targeted. They can only know this if reliable statistics exist.

4.2.6 Following Best Practices Elsewhere

It is also important to note that the national collection of hate crime statistics is consistent with the practice followed in other jurisdictions that have a great deal in common with Canada, namely the United Kingdom and the United States.

4.3 Disadvantages of National Collection

4.3.1 Resources

One argument against the national, standardized collection of this kind of information would simply be that it would require additional effort by police forces across Canada, at a time when police resources are stretched to the limit. Since hate crimes tend to be concentrated in the major urban centres, would it not make more sense to invest in data collection in cities, and leave rural communities out of the exercise? While it is true that hate crime in Canada is almost exclusively an urban phenomenon, this argument assumes that the collection of information on hate motivation would be onerous for police forces. This is not necessarily true. The collection of hate crime statistics does not necessitate the creation of a specialized Hate Crime Unit, although such a step obviously makes sense in Canada's largest police forces. For small, rural communities, a requirement that hate motivation be explored would require little additional effort, since the number of incidents would be so small. Without a more thorough cost-benefit analysis it is hard to make definitive statements, but the additional investment of police resources might not be excessive and would have important practical and symbolic significance.

4.3.2 Duplication

It might also be argued that a national data-collection initiative is unnecessary so long as good data are available at the local level. The positive experience in Ottawa, for example, demonstrates that good data can be collected at the local level, for what are essentially local purposes. While this is true, it overlooks the important symbolic utility of a national data-collection exercise. As well, even if all urban police forces were to collect hate crime statistics in as comprehensive a fashion as the Ottawa, Montreal and Toronto forces, the problem of inconsistency of definition would remain, and comparisons of rates between various Canadian cities would be impossible.

To summarize, there appear to be more arguments in favour of than opposed to some form of national data collection strategy.

At this point the ways in which such a strategy may be implemented is investigated.

4.4 National Integration of Hate Crime Statistics

For the reasons outlined earlier in this report, it seems clear that we need a better idea of the true nature and extent of hate crimes in Canada. There are several steps that could be taken; some possibilities are outlined below.

4.4.1 Encourage Different Groups to Collect Their Own Statistics

The simplest yet least effective way to increase the comprehensiveness of hate crime statistics would be to encourage various minority groups to conduct an exercise similar to that of the B'nai Brith, namely to create and maintain an inventory of hate crime incidents. In fact, several religious, gay and lesbian groups in the United States have been collecting their own statistics for years. However, there are several deficiencies associated with this suggestion. First, it is unlikely that all groups that are the target of hate crimes will have the resources and the experience to match the B'nai Brith effort in this regard. As noted earlier, the Montreal organization representing the gay and lesbian community did not have sufficient resources to continue their data-gathering activities. Second, different groups are likely to adopt variable definitions of what constitutes a hate or bias crime. As noted earlier, police forces across the country use different definitions, and the variability is likely to be even greater for advocacy groups. Third, with each special interest group recording only those incidents directed at members of its constituency, no comprehensive picture can emerge. The final reason why the collection of such statistics should not be left to these private organizations is that statistics collected in this way do not have the same credibility and impact as data routinely collected by a government agency.

4.4.2 Special Studies Approach

A second way of obtaining national, standardized data on hate or bias crimes would involve the Canadian Centre for Justice Statistics conducting periodic "sweeps" of the country within the aegis of its "Special Study" initiative. This would permit the collection (albeit periodic) of data without necessitating changes to any of the current surveys, such as the Uniform Crime Reporting Survey. I have argued elsewhere (Roberts, 1994b) that the Special Studies approach is the best way of collecting information on the racial or ethnic origin of the suspect. For hate crimes, however, this is not in my view the best path to take, for several reasons.

Unlike race-crime statistics, there is no potential danger associated with adding elements to the UCR survey. As well, since hate crimes represent a very small percentage of incidents[21], the additional burden to police forces would be minimal. For the vast majority of crimes recorded, the police officer would simply leave the hate crime questions blank. The experience in the United States is instructive here. Shortly after eight states began collecting hate crime statistics, research indicated that no significant increase in costs was observed. Second, special studies often take a considerable amount of time and consensus to be approved. There is the danger that the media interest which currently surrounds hate crimes (see for example, Macleans, 1995) will dissipate, and the momentum for further action will be lost.

4.4.3 Modifying the Revised Uniform Crime Reporting System

The most effective way to achieve standardization and national data involves adding some data elements to the Uniform Crime Reporting (UCR) System. The revised UCR contains a great deal more information about the crime incident, the suspect and the victim than its predecessor, the aggregate UCR. According to the Statistics Act, Revised Statutes of Canada, C. S19, the objective of the incident-based UCR is to collect essential incident-based information on the nature and extent of crime in Canada. The incident-based UCR provides information for policy and legislative development, evaluation of new legislative development and international comparisons. The database is also used by the news media, academics and researchers. Incorporating some data elements relating to the motivation of the crime would be consistent with all these objectives.

Although the idea of adding data elements relating to hate motivation is straightforward enough, changing the current data elements would require several steps, and would not be a simple undertaking. First, a federal-provincial consultation would be required, the results of which would be provided to the Judicial Information Council (JIC). A critical issue that would have to be resolved relates to the creation of new offences. If new hate crime offences were added to the Criminal Code, modification of the UCR would take a somewhat different route. Second, a consultation with police forces across the country, including the Canadian Association of Chiefs of Police (CACP) would be necessary. Clearly, if the incident-based UCR is to be amended, it will have to benefit from the input and co-operation of police officers across the country. Third, there would have to be a consultation with affected community groups across the country.

Fourth, there will have to be several changes to the Uniform Crime Reporting Manual (Canadian Centre for Justice Statistics, 1984). This is the document which reflects police scoring practices and guides officers across the country. The changes would include information about the definition of a hate or bias crime. This means of course that the issue of definition which was explored earlier in this report would have to be resolved. Finally, the Canadian Centre for Justice Statistics would have to be supportive of, and heavily implicated in, any revision to the UCR. Part of the Centre's activities would consist of a thorough pre-test of any revised UCR form, and this too would take time.

To summarize, modifying the UCR to make it responsive to new hate crimes, or the question of hate motivation is probably the most effective way to generate comprehensive hate crime statistics. However, such a reform would require many steps, protracted consultation involving various stake-holder groups, and would take a considerable amount of time to implement.

A private member's Bill introduced in the Canadian Parliament in 1993 calls for the systematic collection of national statistics on hate crimes. This Bill reflects the views of diverse special interest groups that have called for better statistical information. The proposed Bill is modeled upon an American Bill introduced a few years earlier. Before reviewing the Canadian proposal, it is worth examining the American proposal in more detail, as it provides a model statute that may of be use to Canada.

4.5 United States Hate Crime Statistics Act

In 1990, the United States Congress passed the Hate Crime Statistics Act (United States Statutes at Large, 1991; hereafter Act; see Appendix B of this report for the full text -- similar Bills exist at the state level - see for example, Berk, 1990). The purpose of this piece of legislation was to ensure that hate crime statistics are collected across America. Prior to the passage of this Act, there were no national criminal justice statistics on the incidence of hate-motivated crimes in the United States. The only source of information was private organizations such as the AntiDefamation League's annual audit of anti-semitic incidents and the National Gay and Lesbian Task Force Policy Institute which documents acts of crimes against the gay communities in major American cities. Thus, there are clear parallels between the situation in America prior to the Hate Crimes Statistics Act, and Canada today.

There are several components to the Act. First, while data are required on an annual basis, there is a five-year limit on the reporting requirement. Thus, the idea is to acquire a significant body of data on the issue of hate crimes, rather than to collect these data on a permanent basis. Second, the definition of a hate crime is broad, and does not require the exclusive motivation standard required in some other jurisdictions. The Act simply speaks of "crimes that manifest evidence of prejudice". The prejudice must be based on "race, religion, sexual orientation or ethnicity". Third, there is a list both of target groups, and more unusually, also crimes. The crimes identified in the statute are: "murder; non-negligent manslaughter; forcible rape; aggravated assault; simple assault; intimidation; arson; and, destruction, damage or vandalism of property".

In addition, there is a statutory requirement for the Attorney General to establish guidelines for the collection of such data, including the necessary evidentiary criteria that must be met before an incident is classified as a hate or bias crime. As well, the statute prohibits the use of these data for anything other than legitimate research or statistical purposes, and the data must be purged of any information that could possibly reveal the identity of an individual crime victim. Finally, the sensitivity of the sexual orientation provision is also apparent from a coda that is appended to the statute.[22]

4.6 Canadian Hate Crime Statistics Act (Proposed)

Bill C-455[23] received first reading in June 8, 1993. As with most private member's Bills, it was not reviewed by the House of Commons Committee on Justice and Legal Affairs, and no plans exist to review it in the near future. The purpose and scope of the Bias Incidents Statistics Act is summarized well in an explanatory note:

The purpose of this Bill is to have police forces across the country collect statistics that would indicate the number of incidents investigated by them that were wholly or partly motivated by bias against those sections or individual members of the public distinguished by colour, race, religion, sexual orientation or ethnic origin and that would identify the sections or persons who were the target of bias in each such incident. These statistics would be submitted to the Solicitor General of Canada and receive public exposure by being tabled in the House of Commons.

Several comments are worth making about this proposed Bill (see Appendix C for the complete text). First, it adopts a broad definition which does not require an exclusive motivation. This is consistent with the United States Hate Crime Statistics Act, and with some, but not all of the police forces in Canada (see earlier sections of this report).

Second, the act calls for the federal Solicitor General to establish criteria for the classification of hate crimes. This too, is consistent with the United States statute. Third, the Bill identifies a list of target groups, although it does not include all the categories mentioned in the Sentencing Reform Bill: mental or physical disability and age are absent from the Bias Incidents Statistics Act. Why these were omitted is unclear. Finally, it is worth noting that this act is designed to draw attention to the problem of hate crimes, by virtue of the fact that these statistics would be tabled in the House of Commons, and not simply submitted to the Ministry of the Solicitor General in the form of a research report.

Is it necessary to adopt a Hate Crimes Statistics Act in Canada? In my view, the answer to this question depends upon the degree of consensus surrounding the previous issues relating to the collection of information about hate crimes. If police forces show little sign of consensus, or little interest in co-ordinating efforts in terms of data collection and offence definition, then passage of such a statute may be the only way in which a systematic picture of the hate crime problem can emerge. On the other hand, it is clear from the police forces that participated in the survey that gave rise to this report, that significant interest does exist within the policing community at the present time. Passage of a hate crime statistics act will not solve all the problems associated with the definition and collection of such data. It would be unwise to think otherwise. Nor will such an act do much to facilitate the prosecution of such crimes. However, what the act will do is promote consistency in the collection of hate crime statistics, and this is an important first step.

If national hate crime statistics are compiled by local forces and sent to a central data repository such as Statistics Canada, will this obviate the need for individual community groups such as B'nai Brith to compile their own statistics? The answer is probably not. Police statistics will always be susceptible to reporting biases, and the only way of knowing about the true incidence of hate-motivated crime is to have an independent source of information. In the absence of a periodic victimization survey, we will remain dependent upon community groups to provide information on hate crimes that are not reported to the police. As well, non-criminal justice organizations such as B'nai Brith have been instrumental in sensitizing the community to the magnitude of the hate crime problem (see Czajkoski, 1992).

4.7 Classification of Hate Crimes

The way in which hate crimes are currently classified by the criminal justice system diminishes our awareness of the impact of these crimes. To take but a single example, consider one of the most common forms of hate or bias crimes: defacing religious symbols. There have been many instances over the past few years of the desecration of Jewish cemeteries both here and in Europe.[24] These incidents have been classified as mischief. According to Section 430. (1) of the Criminal Code, "Every one commits mischief who wilfully (a) destroys or damages property".

Classifying hate crime incidents in this way has at least two important negative consequences. First, it diminishes the importance of hate crimes by lumping them together with other, far less malign incidents of vandalism. Spray-painting swastikas on headstones is treated, in terms of the Criminal Code charge against an individual, in the same way as a teenager who spray-paints his initials on a school wall, although the social harm (and the culpability of the offender) is considerably greater. Even the word "mischief" has a popular connotation of a very minor offence. The term "vandalism" is not much better: it conjures up images of graffiti on subway trains, and implies an act that is relatively trivial, and rather mindless (see Wolfgang, Figlio, Tracy and Singer, 1985). Hate crimes are clearly more serious and, far from being mindless, are purposively directed at specific targets, and reflect a definite ideology of hatred (see Hamm, 1994).

The second problem is that offenders of very different degrees of culpability are classified in the same way. This homogenization may be addressed at the stage of sentencing (for those cases that eventually result in a conviction). That is, judges may impose sentences which reflect the additional harm of hate-motivated crimes. However, this is poor substitute for a more accurate classification at the level of the charge. As well, there is the question of the criminal record. Drawing upon prior convictions as contained in a CPIC file, a judge sentencing an offender with prior convictions of mischief would have no way of knowing about the nature of the previous offending. This is because the CPIC system does not include such information. The severity of the sentence would therefore fail to reflect the seriousness of the offence for which it was imposed, thereby undermining the critical principle of proportionality in the sentencing process[25].

A central issue that has to be resolved then, in this area is whether it is appropriate to create specific hate crimes. This issue has already been addressed, and there are complex arguments on both sides (see Gilmour, 1994: 77-86 for a thorough discussion). However the question is eventually resolved, it does seem clear that the status quo, in which offenders can commit repeated acts of criminal hatred without this necessarily being recognized by the criminal justice system, is inadequate.

In short, the use of a catch-all offence like mischief leads to a loss of precision in the application of the criminal law. Of course, the same argument applies to racially-motivated assaults. Under the present system, we have no reliable way of knowing whether a recidivist offender's previous convictions for assault were racially-motivated or not.

Accordingly, in my view, there is a powerful argument to be made for the creation of some specific hate crime offences. For example, there could be a specific offence such as the desecration of religious symbols, property or institutions. This is a recommendation that has been advanced by numerous groups in Canada and elsewhere, including B'nai Brith Canada (League of Human Rights, 1993: 44). Creating a limited number of hate crimes would not result in duplication of offences for the reason that the desecration of a tomb is not the same criminal act as the spray-painting of a subway train.Attempting to respond to the former act by classifying it in the same Criminal Code section as the latter is inevitably going to lead to a trivializing of what is a serious crime. Nor can this additional element of harm be adequately recognized at the time of sentencing, for the reasons outlined above.

Finally, the experience in other jurisdictions has shown that a vigorous response to hate crimes has positive effects both in terms of reducing the incidence of such offences, and also promoting more cohesive communities, in which the various minorities that have traditionally been the target of hate crimes feel their needs have been addressed.The police response is a critical component in the effort to address the problem of hate crimes, but it is still only one component. There are other steps that can be taken. One of these consists of promoting public awareness of the problem, and public confidence in the system's response. A good example of a proactive approach to the problem is the billboards that have been placed in the Toronto Transit system.[26]

4.8 Police Training Initiative

Passing laws and setting up systems to collect data simply are not enough. The states must train local law enforcement officers in how to detect hate crimes, how to respond to those crimes and how to report them accurately and completely (Coldren, 1991: 131).

Police training in the area of hate crime investigation is critical. While a uniform definition of what constitutes a hate crime is obviously going to be useful, if officers are not provided with the skills and training to correctly identify and classify reports of hate crimes, the national statistical database will be of little utility. As one officer responding to the Department of Justice Canada data request noted:

The integrity of the [hate crime] data system will be dependent on the foundation of a consistent definition as well as consistent application of the definition by police services across the country.

It is clear that the police response to hate crimes could benefit from additional training. While members of several Canadian police forces have travelled to the United States to acquire experience in responding to hate crimes, there has been no national training initiative. The experience in Toronto and Ottawa could be of considerable use to other Canadian police forces. If there were a national hate crime workshop for police officers[27], the experiences in Ottawa and Toronto could be shared across the country. This would promote a more uniform response in terms of procedures, training and investigation. This training should also include how to deal with the victims of hate crimes in a sensitive and appropriate manner. While a number of national police training initiatives exist in other areas such as domestic violence (e.g., Roberts and O'Sullivan, 1993), there is currently no training for police officers in the area of hate crimes. And since, detecting hate motivation is a problem that will confront all police officers, not just members of a specialized hate crime unit, consideration should be given to making hate crime training a part of the basic training for recruits.

4.9 Non-criminal Justice Agencies

Although this report has been directed largely to the criminal justice response to hate crimes, it is important to note that responding to this problem is not only the responsibility of the police and the courts. Long-term, non-reactive strategies are likely to prove more effective in reducing the incidence of hate-motivated crime. These strategies are likely to be based in large part on education initiatives, particularly those involving schools. As noted earlier in the report, the typical hate crime offender is a young person, usually under the age of 25. Criminal justice interventions involving the arrest, prosecution and punishment of culpable individuals are important, but are reactive in nature; they are invoked once the crime has been committed (see Cook, 1991). Greater efforts need to be made to educate young persons about the harm inflicted by hate crimes, and the fact that more than other crime, hate crimes traduce the spirit of a multicultural, multiracial society.

The research literature on vandalism is instructive in this respect. Many of the hate crimes reported to the police involve some form of vandalism, particularly anti-semitic vandalism directed at synagogues. Surveys of young persons show that they fail to appreciate the severity of crimes of vandalism, and this may well be responsible for the high rates of participation. For example, research in Ontario involving schoolchildren found that respondents believed vandalism to be a low severity crime, which was least likely to result in conviction (Ontario Task Force on Vandalism, 1981). Not surprisingly, perhaps, perceptions of offence severity were inversely related to the likelihood that the respondent has participated in an act of vandalism (Ontario Task Force on Vandalism, 1981: 248). This finding has also been found elsewhere. As Zimmerman and Broder (1981: 51) note:

There is a significant negative relationship between the seriousness and extent of activity; the more serious an act, the less likely it is engaged in, and the fewer the children who engage in it.

In short, educating the public in general, and the young in particular, about the seriousness of this form of criminal activity is likely to prove an effective long-term strategy to combat the incidence of hate crimes.[28]

4.10 Research Priorities Relating to Hate Crimes

In addition to formalising the collection of uniform statistics by the police, there are several other steps that should be taken to improve our knowledge of the nature and incidence of this form of criminality.

4.10.1 Survey of Community

Although hate crime units now exist in most major urban police forces, little is known about their relationship with the communities most affected by hate crimes. For example, we do not know how much confidence members of the Gay and Lesbian community have in the police response to reports of hate crime. Only when we have a scientific survey of the communities most affected will we be able to know how effective the police response has been in terms of reaching out to victims of hate crime. Research on hate-motivated crime in other countries (e.g., Maung and Mirrlees-Black, 1994) has shown that fear, dislike, or lack of confidence in the police was the reason why visible minorities did not report crimes to the criminal justice system. We need to know whether this is also the case with regard to ethnic minorities as well as other communities that are the target of hate crimes.

4.10.2 Victimization Surveys

As noted in the introduction to this report, crime statistics collected by the criminal justice system capture only part of the true incidence of crime. This has implications for any attempt to track the incidence of hate crimes. For example, it suggests that hate crimes should also be addressed in a victimization survey. The principal victimization survey in Canada is the personal risk survey contained in the General Social Survey (GSS). The survey was conducted in 1988 and replicated in 1993.

The data from the survey have added considerably to our knowledge of crime patterns in Canada (see, for example, Gartner and Doob, 1994). It would be relatively straightforward to add some additional questions to the GSS that would explore victims' perceptions of crime incidents in which hate motivation played a role (or was perceived by the victim to have played a role). Without such additional information, our knowledge of the incidence of hate crime would be restricted to official crime statistics.

On the basis of current data, we do not know a great deal about the relative victimization rates of different minorities. Is the incidence of hate crime directed at the Jewish community greater than that directed at Black communities in Canada? Both groups have in the past been the object of discrimination and overt racism. However the data on acts of anti-semitism have been subject to better documentation over the years. Although the Audit of Anti-Semitic Incidents conducted annually by the League for Human Rights of B'nai Brith Canada probably captures only a minority of incidents of anti-semitism in this country, the documentation provides a useful index of one important form of hate crime activity. We need to have a similar research initiative for other minority groups. This information could be obtained by means of a victimization survey.

4.10.3 Criminal Justice Processing of Hate-motivated Crimes

The successful prosecution of hate-motivated crimes creates special challenges for the police and the crown. No systematic research has examined the way in which the police investigate such crimes. Even cursory examination of the information sent to the Department of Justice Canada suggests variability in the approach to investigation of hate crimes. This initiative would involve qualitative research. The findings described in this report are all quantitative in nature. However, there is a limit to what we can learn about hate crime incidents, and the way that the criminal justice system responds to them, by means of quantitative research. Accordingly, an in-depth analysis of a limited number of case files would greatly aid our understanding of the problem. This research would supplement quantitative findings that inform us about gross trends across jurisdictions and over time. One important topic that needs to be addressed from this perspective is the extent to which hate crimes in Canada are the product of organized groups (as is the case in most European jurisdictions -- see Loow, 1995) rather than individual offenders without any such affiliation.

4.10.4 Case Law Analysis of Sentencing Decisions in Hate Crime Sentences

As noted earlier, the Sentencing Reform Bill (C-41) specifies hate motivation as an aggravating factor. This is consistent with recommendations made by various groups and individuals (see Etherington, 1994: 81). As well, it has been observed that this statute merely codifies what the courts have been doing for some time: increasing the quantum of punishment in those cases in which hatred of an identifiable group was a precipitating factor. However, this assertion has never been fully documented, and the few existing sentencing texts (Canadian Sentencing Commission, 1987; Ruby, 1994) are silent on the issue. It is important to know whether the courts have in fact recognized hate motivation in this way, and also to what extent. To what extent should this factor aggravate? The power of different aggravating factors varies widely. Some indication of the range of aggravation would be of utility to judges and would result in greater uniformity in terms of application of the statutory penalty enhancement.

4.10.5 Offender Profile Analysis

Research in other jurisdictions as well as the limited information currently available in Canada suggests that hate crime offenders are a relatively homogenous group. They are younger than the general offender population, and although the general offender population is comprised largely of males, hate crime offenders are exclusively masculine.

They also tend to have links with gangs. To the extent that this is true for hate crimes across Canada, there are important policy implications to be drawn in terms of the criminal justice response.

4.10.6 Public Opinion Survey of Attitudes Towards Hate-motivated Crimes

It would be worth knowing more about public perception in this area. For example, what do the public know about the extent of the problem in Canada? Do they support the use of hate motivation as an aggravating factor at the time of sentencing? Are people in some demographic categories less likely to report crimes motivated by hate? These are some of the questions that would be answered by systematic public opinion research.


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