Article Volume 41:1

Criminal Responses to Hate-Motivated Violence: Is Bill C-41 Tough Enough?

Table of Contents

Criminal Responses to Hate-Motivated
Violence: Is Bill C-41 Tough Enough?

Martha Shaffer’

Following an apparent upsurge

in hate-
motivated violence, Parliament enacted Bill C-41
which received Royal Assent on July 13, 1995.
This Bill requires judges to treat proof that an ac-
cused was motivated by group hatred as an ag-
gravating factor in sentencing. The author argues
that Bill C-41, although a step in the right direc-
to condemn hate crime strongly
tion, fails
enough. She argues for the adoption of hate-
crime provisions similar to those that exist within
the United States. These provisions permit penal-
ties for acts of hate-motivated violence to be in-
creased beyond the maximum for violence that is
not motivated by hatred. Many of the provisions
also create a distinct offence for violent acts
committed with a hateful motive. The author ar-
gues that creating a distinct offence for hate-
motivated violence and permitting enhanced
penalties is a better use of the criminal law than is
Bill C-41. She argues that an explicit provision
condemning hate crime provides recognition that
such violence is different from, and frequently
more heinous than, other types of violence. Such
a provision would also constitute an important
denunciation of hate-motivated violence and
would provide groups who face such violence
better redress.

ttats-Unis. Ces demi~res

Suite h une augmentation de la violence mo-
tivfe par la haine, le Parlement a adopt6 la loi
C-41 qui a requ l’assentiment royal le 13 juillet
1995. Cette loi exige des juges qu’ils consid&ent
la preuve qu’un accus6 a 6t6 motiv6 par une haine
de groupe comme un facteur aggravant dans ]a
determination de la sentence. L’auteure sugg~re
que la loi C-41, bien qu’elle constitue un pas dans
la bonne direction, n’affirme pas de mani~re suf-
fisamment claire que les crimes haineux sont in-
acceptables au Canada. Elle opte pour 1’adoption
de dispositions semblables A celles qui existent
permettent
aux
d’augmenter les peines pour les actes de violence
motivfe par la haine au-delh des limites maxima-
les d6terminies pour les actes dont la violence
n’est pas motive par la haine. Plusieurs de ces
dispositions crent 6galement un crime distinct
pour les actes violents commis avec des motifs
haineux. L’auteure soutient que la creation d’un
crime distinct pour les actes violents motivds par
la haine et l’augmentation des peines font un
meilleur usage du droit penal que la loi C-41. Elle
consid~re qu’une disposition expresse condam-
nant les crimes haineux permet de reconnaitre
qu’une telle violence est diff~rente et souvent
plus haineuse que les autres types de violence.
Une telle disposition constituerait de plus une dd-
nonciation importante de la violence motiv6e par
la haine et foumirait une meilleure rparation aux
groupes qui sont victimes de cette violence.

. Assistant Professor, Faculty of Law, University of Toronto. I would like to thank Alan Mewett,
David Dyzenhaus, Carol Rogerson, Hamish Stewart, and Katherine Swinton for their helpful com-
ments. I am extremely grateful to Norma Priday and Younghee Na for their thoughtful suggestions
and superb research assistance. As always, thanks to Shaun Nakatsuru for his insight and support.

McGill Law Journal 1995
Revue de droit de McGill
To be cited as: (1995) 41 McGill L.J. 199
Mode de rlfdrence: (1995) 41 R.D. McGill 199

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Introduction

Synopsis

I. The Case for Strong Hate-Crime Legislation

A. The Development of Hate-Crime Legislation in the United States and its

B. The Arguments in Favour of Enacting U.S.-Style Hate-Crime Legisla-

Applicability to Canada

tion in Canada

11. Arguments Against U.S.-Style Hate-Crime Legislation

A. Constitutional Concerns

1.

Freedom of Speech and Freedom of Expression
a.

b.

Hate Crimes as “Thought Crimes” and the Doctrine of
Overbreadth
Hate-Crime Provisions and Section 2(b) of the Charter
i.

The Canadian Equivalent of the Thought-Crime
Argument
Section 1 of the Charter
The Canadian Version of the Overbreadth Argu-
ment

ii.
iii.

2.
3.
4.

Equal Protection
Vagueness
Hate Crime and Section 7 of the Charter – Can Parliament Pun-
ish Acts Inspired by Certain Motives More Harshly Than Others?

B. Effectiveness Concerns

1.

2.

Problems of Proof: Proof Beyond a Reasonable Doubt and the Use
of Similar Fact Evidence
Unconscious Racism or Bigotry

C. The Limitations of the Criminal Law: Political Concerns

Conclusion

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M. SHAFFER – IS BILL C-41 TOUGH ENOUGH?

Toronto, June 1993: Three Tamil men are violently assaulted by white youths. One of
them dies as a result of the attack.’ Saskatoon, 1991: Aboriginal trapper Leo Lachance is
shot to death as he leaves a pawn shop. Pawn shop owner, Carney Nerland –
a member
of the Aryan Nations – pleads guilty to manslaughter and is sentenced to four years in
prison. Montreal, November 1992: Two gay men are murdered in separate incidents of
gay bashing.3 Vancouver, September 1992: A gay man requires eight metal plates and
thirty-eight screws to reconstruct his face after being attacked by a gang of youths. To-
ronto, 1993: The Heritage Front, a white supremacist group, sets up a telephone hotline
and actively recruits in high schools and on college campuses! Toronto, 1992. The Native
Canadian Centre and a book store displaying books opposing fascism are spray painted
with swastikas on the same night that a small Jewish cemetery is defaced with anti-
Semitic slogans6. Within fourteen months of these events, swastikas are painted on four
synagogues in Toronto, and a Holocaust memorial is defaced with the words, “six million
isn’t enough.”7 In Vancouver, a synagogue is vandalized with blood stains, and the Jewish
Community Centre receives a bomb threat.

Introduction

Canada appears to be witnessing an upsurge? in hate-motivated violence.” This
is the criminal justice system responding adequately to the

raises the question –

‘P. Small, “Refugee Slashed by Two Men in Third Attack on Tamils” The Toronto Star (22 June
1993) A6.
2 “Inquiry into Death of Trapper Questioned[,] Saskatchewan Indian Shot by White Supremacist’
The Toronto Star (23 November 1993) All.

‘I. Peritz, “Montreal Gay Killings: ‘Tip of Iceberg.’ The Toronto Star (26 December 1992) B5.
4 V. Janoff, “Darkness at the edge of town: Sexual politics turns violent as toughs stalk West End
gays” The Vancouver Sun (12 September 1992) D4.
5 J. Armstrong, “Racists Target Kids in Schools, Report Says” The Toronto Star (11 March 1993)
A4.

“Jewish Group Posts Reward After Vandals Hit at Natives” The Toronto Star (30 November 1992)
A26; D. Brazao, “Racists deface walls of Jewish cemetery” The Toronto Star (7 December 1992) E7.
7 “Vandals attack 3 Metro synagogues” The Toronto Star (24 September 1992) A4; “Swastikas
painted on synagogue and cars” The Toronto Star (5 April 1993) A6; K. Hudson, “Anti-Semitic Slo-
gans Deface Memorial in Park” The Toronto Star (5 August 1993) N.Y 1.

SK. Bolan, “Anti-Semitic incidents last year highest on record, report says” The Vancouver Sun (25

February 1994) A3.

‘ Since police forces in Canada have not kept accurate statistics on hate-motivated violence, it is
unclear whether there has been a real upsurge or whether there is greater media attention focused on
the problem and greater social recognition that racist violence is unacceptable. However, given that
scapegoating and racist actions tend to increase during periods of economic downturn, an increase in
racist violence would not be surprising. Statistics released by the Toronto Police force, which began to
compile bias crime statistics in January 1993, appear to support this hypothesis. During the first six
months of that year, police identified “a definite bias” as the motive in 75 criminal assaults, with the
annual total reaching 155. Figures released by the Metropolitan Toronto Police Hate Crime Unit for
the first six months of 1994 refer to 112 bias crimes (see G. Swainson, “Hate Crimes on Increase
Among Teens Figures Show” The Toronto Star (23 June 1994) N.Y. 4).

01 use the term “hate-motivated violence” to refer to violence based on a person’s racial, religious,
or ethnic identification, as well as on the victim’s sexual orientation or disability. See infra notes 26-
28, 57 and accompanying text.

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problem of violence motivated by hate? At present, although the Criminal Code”
contains provisions dealing with hate propaganda,’2 it does not specifically address
hate-motivated violence. Hate-motivated violence is prosecuted instead under the
standard criminal provisions governing violent acts, such as assault, manslaughter
or mischief. The bigoted nature of any incident, assuming it enters into the process
at all, is considered only as a factor in sentencing.

In June 1994, the Canadian government announced its intention to take an ag-
gressive stand against hate crime. Minister of Justice Allan Rock introduced legis-
lation” to amend the Criminal Code to require judges, when passing sentence, to
consider an offender’s biased motive as a factor tending to increase the severity of
the offence. Although the media portrayed Bill C-41 as a significant change and as
a potential interference with the independence of the judiciary,” the Bill actually
does little to alter the current law. Under the Bill, hate crimes would continue to be
prosecuted under existing Criminal Code provisions, and the accused’s bigoted
motive would only be considered at sentencing. The only significant difference
between existing sentencing principles and the proposed amendments is that, under
the latter, the Criminal Code would explicitly require consideration of an accused’s
biased motive as an element in sentencing.

In contrast to the existing Canadian approach to hate crime and to Parliament’s
codification of it, many jurisdictions in the United States have enacted provisions
directed specifically at the problem of hate-motivated violence.'” These provisions
increase the criminal penalties for offences involving violence motivated by hatred
above those that attach to offences where group-based hatred is not an issue. Many
also create a civil cause of action for victims of such violence. Despite considerable
dispute over the constitutional validity of these statutes, the Supreme Court of the
United States recently held that Wisconsin’s hate-crime law’6 did not violate the
United States Constitution.’ 7

In light of the increase in hate crimes Canada appears to be witnessing, the time
is ripe to consider how the criminal law should respond to this type of violence, and
specifically, whether Bill C-41 is the best approach our criminal law has to offer. In

“R.S.C. 1985, c. C-46 [hereinafter Criminal Code].
Ibid. atss. 318-19.
“Bill C-41, An Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequence
Thereof, 1st Sess., 35th Par]., 1995 (assented to 13 July 1995, S.C. 1995, c. 22) [hereinafter
Bill C-41].

‘ See especially: D. Vienneau, “Ottawa Aims to Put Fewer in Prison But New Liberal Bill is Tough
on Hate Crimes” The Toronto Star (14 June 1994) Al; “Combatting Hate Crimes: Enlightened Step
by Federal Government Will Be of Little Use If Left in a Vacuum” The Ottmva Citizen (27 June
1994) A9; H. Levy, “Punishing the Idea Behind the Crime” The Toronto Star (5 July 1994) A15.
” See e.g., supra notes 16, 20-22 and accompanying text.
16 Wis. Stat. Ann. 939.645 (West Supp. 1992) [hereinafter Wisconsin Statute].
17 See Wisconsin v. Mitchell, 113 S. Ct. 2194, 124 L. Ed. (2d) 436 (1993) [hereinafter Mitchell cited

to S. Ct.].

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M. SHAFFER – Is BILL C-41 TOUGH ENOUGH?

this paper, I advance an argument in support of adopting U.S.-style hate-crime
provisions. I suggest in Part I that Bill C-41 does not a represent a strong enough
commitment to denouncing hate-motivated violence and to ensuring that perpetra-
tors of such violence receive sufficient disapprobation. In Part II, I draw upon the
experience of the United States to canvass potential weaknesses of hate-crime legis-
lation, both in terms of practical difficulties of enforcement and in terms of poten-
tial constitutional hurdles. Throughout this discussion, I attempt to show that there
are no constitutional obstacles to enacting U.S.-style hate-crime provisions in Can-
ada, and further, that even though U.S.-style hate-crime provisions may have some
practical limitations, Bill C-41 does not appear to offer any advantages over the
United States’s approach. I conclude by arguing that, if we are serious about our
commitment to harmonious inter-group relations, hate-crime provisions present a
better use of the criminal law than does Bill C-41.

My argument in support of U.S.-style hate-crime provisions is qualified, how-
ever, by a number of concerns. First, although at first glance hate-crime legislation
may appear to be a progressive measure offering protection and a means of redress
for groups which have been victimized by hatemongers, upon greater reflection it
may not be as constructive. Like many other criminal law reforms, hate-crime pro-
visions may be little more than symbolic gestures, incapable of contributing to the
solution of deeply-entrenched social problems. Second, if the hate-crime provisions
turn out to be ineffective in yielding convictions –
as seems to have been the case
in the United States –
they may do more harm than good. Rather than signalling
that hate crime will be treated seriously, they may, in fact, send the opposite mes-
sage. Third, once hate-crime legislation is in place, we may be tempted to believe
that, because we have taken measures to combat hate-motivated violence, no fur-
ther action is needed. Notwithstanding these problems, I believe that the creation of
strong hate-crime legislation is important in a society that prides itself on its ethics
of tolerance and multiculturalism and, yet, is plagued by deep undercurrents of
hate.

Throughout the ensuing discussion, it is important to keep in mind the limited
parameters of the debate, namely, the response of the criminal justice system to the
problem of hate-motivated violence. The criminal-justice system is only one of
many possible mechanisms for addressing hate-motivated violence, and arguably, it
has only a very small role to play in rooting-out the causes of such violence. Hate-
crime legislation should not, therefore, be seen as a panacea for eradicating hate
crime, as should be clear from the experience of the United States where high levels
of hate crime persist.’8 This paper focuses on the limited question of whether the

” For example, the Los Angeles County Commission on Race Relations recorded a 6.4 percent in-
crease in hate crimes from 1992 to 1993 (see D. Hamilton, “Combatting Hate: Crimes Against Mi-
norities are Increasing Across the Board” The Los Angeles Tmes (17 May 1994) B 1). The Boston
Police Department reported that hate crimes in that city doubled between 1989 and 1994 (see I.A.R.
Lackshmanan, “Hate-crime Reports rise in Boston” The Boston Globe (20 June 1994) 1). Both Cali-
fornia and Massachusetts have a full range of hate-crime statutes.

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criminal-justice system is making the best contribution it can to deterring racist
violence and to ensuring that those who commit hate-motivated crime receive ap-
propriate disapprobation.

I. The Case for Strong Hate-Crime Legislation

A. The Development of Hate-Crime Legislation in the United States and its

Applicability to Canada

A brief overview of the hate-crime legislation that has proliferated in the United
States over the last decade serves as a useful way to begin discussing the nature of
such provisions and the reasons in favour of their enactment. During the late 1970s
and the early 1980s, the United States experienced an upsurge in violence against
members of racial and religious minorities as well as an increase in other hate-
group activities, such as cross burnings and the defacing of synagogues.” In re-
sponse, several state legislatures began to consider legislation to deter racist vio-
lence, provide mechanisms of redress for victims of such violence, and express so-
cial disapproval of racist activities. In 1981, Oregon became the first state to enact
criminal provisions specifically directed at hate-motivated violence.” Other states
quickly followed suit, and by 1991 well over one-half of the states had enacted
criminal- provisions against hate-motivated violence.’
If civil remedies are also
taken into account, forty-seven states had passed some form of legislation to com-
bat hate-motivated violence by 1993.’

Many of the states based their criminal provisions, at least, in part on model
legislation drafted by the Anti-Defamation League of B’nai B’rith (“A.D.L.”).”
Having documented rising anti-semitism in the late 1970s, the A.D.L. began to ad-

” See H. Mazur-Hart, “Racial and Religious Intimidation: An Analysis of Oregon’s 1981 Law”
(1982) 18 Willamette L. Rev. 197. One of the most notorious examples of this increase in hate-group
activity was the 1977 attempt by the neo-Nazi National Socialist Party of America to march through
Skokie, Illinois, a suburb of Chicago, which had a large population of Jewish survivors of the holo-
caust (see S. Geilman, “Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sen-
tence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws” (1991) 39 U.C.L.A. L. Rev.
333).

2 Since revised as Or. Rev. Stat. Ann. ss. 166.165 (1991) [hereinafter Oregon Statute]. It is perhaps
more accurate to call this statute the first modem hate-crime law. United States federal statutes passed
after the Civil War have been used to address hate-motivated violence, but for the most part, they
have not yielded convictions. For further discussion of these statutes, see G. Padgett, “Racially-
Motivated Violence and Intimidation: Inadequate State Enforcement and Federal Civil Rights Reme-
dies” (1984) 75 J. Crim. L. & Criminology 103.

2″ See e.g.: Wisconsin Statute, supra note 16; Ohio Rev. Code Ann. s. 2927.12 (Baldwin 1992). See
also: M.Z. Goldberg, “Statutes Combat Hate Crimes in 46 States, ADL Reports” (1992) 28:2 Trial 88;
Anti-Defamation League, Hate Crimes Statutes: A 1991 Status Report (New York: A.D.L., 1992)
[hereinafter Hate Crimes Statutes].

22See J. Levin & J. McDevitt, Hate Crimes (New York: Plenum Press, 1993) at c. 13.
‘ See Hate Crimes Statutes, supra note 21 at 20.

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M. SHAFFER – Is BILL C-41 TOUGH ENOUGH?

vocate the creation of hate-crime legislation, and in 1981, it released a model stat-
ute which it hoped would form the basis of legislation at the state level.’ The
A.D.L. recommended the creation of two criminal offences: institutional vandalism
and intimidation. Institutional vandalism prohibited the vandalism of cemeteries,
places of worship, community centers, or schools, all of which are common forms
of anti-Semitic activity.’ The offence of intimidation was based on the principle
that crimes motivated by racial or religious hatred are more heinous than those
which are not and provided that certain offences could be punished more harshly
when motivated by hatred. Since the initial release of its model legislation, the
A.D.L. has broadened its intimidation provision to include crimes committed be-
cause of the victim’s sexual orientation. The provision, thus, now addresses gay and
lesbian bashing, crimes which have become increasingly prevalent over the last few
years.” The A.D.L. model now provides the following definition of intimidation:

A. A person commits the crime of intimidation if, by reason of the actual or
perceived race, color, religion, national origin or sexual orientation of an-
other individual or group of individuals, he violates Section _
of the
Penal Code (insert code provision for criminal trespass, criminal mischief,
harassment, menacing, assault and/or other appropriate statutorily pro-
scribed criminal conduct).

B.

Intimidation is a _

misdemeanor/felony (the degree of the criminal
liability should be at least one degree more serious than that imposed for
the commission of the offense).’

“See Gellman, supra note 19 at 339.
“2The A.D.L. defines institutional vandalism as follows:

A. A person commits the crime of institutional vandalism by knowingly vandaliz-

ing, defacing or otherwise damaging:

i) Any church, synagogue or other building, structure or place used for relig-

ious worship or other religious purpose;

ii) Any cemetery, mortuary or other facility used for the purpose of burial or

memorializing the dead;

iii) Any school, educational facility or community center,
iv) The grounds adjacent to, and owned or rented by, any institution, facility,
building, structure or place described in subsections (i), (ii) or (iii) above;
or

v) Any personal property contained in any institution, facility, building,
structure or place described in subsections (i), (ii) or (iii) above (Hate
Crimes Statutes, supra note 21 at 4).

The A.D.L. proposes that the penalties for institutional vandalism should vary based on the amount
of damage caused to the property. According to A.D.L. statistics, by 1991, 36 states had enacted pro-
visions prohibiting institutional vandalism (see ibid. at 22-23).
26 See C. Petersen, “A Queer Response to Bashing: Legislating Against Hate” (1991) 16 Queen’s
L.J. 237.

” Hate Crimes Statutes, supra note 21 at 4. The A.D.L. also expanded its model legislation to in-
clude two additional components: a civil action for institutional vandalism and intimidation; and pro-

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According to A.D.L. statistics, by 1991, twenty-eight states had passed legislation
akin to the offence of intimidation.28

for example, assault –

The offence of intimidation alters the criminal law’s traditional response to
hate-motivated violence in two ways. First, it creates a distinct criminal offence fo-
cused on the hatred precipitating the accused’s action. In the absence of a provision
of this sort, prosecution would proceed under one of the generic offences included
within the crime of intimidation –
and the accused’s hateful
motive would be considered only at the point of sentencing. Intimidation, thus, em-
phasizes the bigoted nature of the accused’s actions rather than the particular vio-
lent act by which the accused expressed his or her antipathies. Second, intimidation
increases the maximum penalty for hate-motivated violence above that available for
the underlying violent offence. Thus, while in a particular jurisdiction assault might
carry a maximum penalty of five-years imprisonment,’ by deeming intimidation to
be “one degree more serious””‘ than the underlying offence of assault, the provision
increases the penalty that can be imposed on a person who commits an assault be-
cause of hatred of a group to which the victim belongs.”

Four aspects of the A.D.L.’s intimidation provision merit further discussion.
First, although the offence will generally involve inter-group violence, intimidation
is not intended to penalize inter-group violence per se but is, instead, designed to
cover instances in which the violence is caused by group hatred. The A.D.L. ex-
plained the scope of the offence in the following way:

The conduct targeted by the legislation … is distinct from other criminal behav-
ior. These are not incidents where the victim is coincidentally the member of a
group different from the criminal’s, or where the criminal –
in the course of a
burglary or a mugging –
realizes his victim’s status and utters a racist or anti-
Semitic remark. These crimes occur because of the victim’s actual or perceived
status; where race, religion, ethnicity or sexual orientation is the reason for the
crime. In the vast majority of these cases, but for this personal characteristic, no
crime would occur.2

visions requiring states to keep records of hate crime and to train police officers to identify and to re-
spond effectively to hate crime (see ibid at 4-5). Although the four components may be seen to con-
stitute a comprehensive package of legislative action to respond to hate crime, a discussion of the
non-criminal provisions is beyond the scope of this paper (but is explored ibid. at 2-3).

See ibid at 22-23.
29 Under the Criminal Code, the maximum penalty for simple assault prosecuted by indictment is a

term of imprisonment not exceeding five years (supra note 11 at s. 266(a)).

‘0 In general, the U.S. states have highly-structured sentencing mechanisms which conceive of se-
verity by degrees (see United States Sentencing Commission, Federal Sentencing Guidelines Manual
(St. Paul, Minn.: West, 1994)).

” Although the A.D.L. uses U.S. terminology when it speaks of increasing the severity of the of-
fence by “degrees”, as I explain below at the text accompanying notes 35ff, the same result could be
obtained in Canada in a number of ways.

” Brief of Amici Curite the Anti-Defamation League et al., in Mitchell, at 7 [hereinafter A.D.L.

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M. SHAFFER – Is BILL C-41 TOUGH ENOUGH?

Thus, intimidation deals only with a specific kind of inter-group violence and
would not apply simply because the accused and the victim happen to belong to dif-
ferent racial, ethnic or religious groups, or have different sexual orientations.

Second, it is the accused’s perception of the victim’s race, religion, or sexual
orientation, rather than the victim’s actual identity, that is relevant to the offence.
Thus, individuals will be guilty of intimidation if they assault a person they believe
to be, for example, Jewish, whether or not that person is in fact Jewish. What mat-
ters is the accused’s intention to assault a Jewish person to express hatred of Jewish
people, not whether the accused was correct in his or her belief that the victim was
Jewish. The crime of intimidation, therefore, can be made out even where the ac-
cused’s ascription of characteristics to the victim was completely erroneous.

Third, although initially conceived as a response to violence by racist groups
against racial and religious minorities, the A.D.L. provision is drafted to be race
and religion neutral, with the result that it punishes crimes motivated by group ha-
tred regardless of the identity of the accused or of the victim. Thus, people of col-
our can be convicted of intimidation if by reason of racial hatred they assault some-
one of a different racial group. In fact, in Mitchell, where the United States Su-
preme Court upheld Wisconsin’s intimidation provision, the accused was an Afri-
can-American man and the victim was a white youth.3 Since the condemnation of
hate-based violence embodied in intimidation statutes works to the benefit of mem-
bers of the majority, as well to the benefit of members of minority groups, intimi-
dation statutes cannot be said to offer “special” protection to minorities.

Finally, the A.D.L. provision is broad enough to cover not only violence di-
rected at persons whom the accused perceives as members of the hated group but
also includes violence directed at members of the accused’s own group who are
targeted because of their association with the hated group. Thus, white supremacists
could be convicted of a hate crime for assaulting a white man who is part of an in-
ter-racial couple, if the assault was motivated by an abhorrence of inter-racial dat-
ing or miscegenation.’ While the non-white member of the couple would not be the
direct target of the violence, the assault would still have been perpetrated “by rea-
son of’ his or her race and association with the immediate victim.

There are two principal ways in which a provision analogous to the A.D.L. in-
timidation provision could be drafted in Canada. The first and most obvious course
would be to enact an omnibus hate-crime provision akin to the A.D.L.’s model.
Such a provision could set out the violent offences that, when coupled with a hate-
ful motive, would constitute “intimidation”. This provision could either specify the
penalty increase for each underlying offence (as the.A.D.L. model does) or simply

Brief in Mitchell].

33See ibid. For a discussion of this case, see text accompanying notes 74-85.

See e.g. United States v. Wood, 780 F.2d 955 (llth Cir. 1986).

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impose a penalty distinct from that of the underlying offence. Alternatively, a pro-
vision analogous to section 85 of the Criminal Code could be enacted. Section 85
states that a person who uses a firearm while committing an indictable offence or
while fleeing from committing or attempting to commit an indictable offence is
guilty of a separate offence and is liable to imprisonment for a minimum of one
year” and a maximum of fourteen years.’ Since section 85 also stipulates that the
sentence for this offence is to be served consecutively to the sentence for the under-
lying indictable offence, its effect is to increase the sentence for indictable offences
committed with a firearm. A crime of ethnic intimidation could be drafted along
these lines to provide that a person who has committed a specific violent offence
and who was motivated by group hatred would be guilty of the offence of intimida-
tion in addition to the underlying violent offence. That person would then be sub-
ject to a statutorily-mandated minimum sentence to be served consecutively to the
sentence for the underlying violent crime.

Second, the sentencing provisions of the Criminal Code could be amended to
provide for an increased sentence where a person has been found guilty of specified
violent offences and has been shown to have been motivated by group hatred. In
other words, rather than creating a distinct offence of intimidation, Parliament
could simply increase the maximum sentence for designated offences when these
offences were motivated by group hatred. Since it would focus on sentencing, this
approach would differ from Bill C-41 in only one key respect: it would permit the
maximum penalty to be increased beyond the maximum available for an offence not
motivated by hatred.” This approach has been adopted in several U.S. states.”

3 According to section 85(1)(d), this minimum is increased to three years for second or subsequent
offences or “in the case of a first offence committed by a person who, prior to January 1, 1978, was
convicted of an indictable offence, in the course of which or during his flight after the commission or
attempted commission of which he used a firearm” (Criminal Code, supra note 11 at s. 85(1)(d)).

36 This provision has been slightly altered by Bill C-68, An Act Respecting Firearms and Other
Weapons, 1st Sess., 35th Pal., 1994-95, cl. 139 (passed by the House of Commons 13 June 1995)
[hereinafter Bill C-68]. The new section 85 would not apply to the following offences: criminal negli-
gence causing death; manslaughter, attempted murder, causing bodily harm with intent and using a
firearm; sexual assault with a weapon; aggravated sexual assault; kidnapping; hostage-taking; rob-
bery; or extortion (Bill C-68, ibid).

” This approach bears some similarity to the existing murder provisions of the Criminal Code, which
distinguish between murder in the first and second degree. The distinction does not create two separate
those that are planned and deliberate
murder offences but, rather, declares certain murders -including
or those committed in the course of certain offences involving domination –
to merit a longer term of
parole ineligibility than others (Criminal Code, supra note 11 at s. 231). While the maximum punish-
ment for both forms of murder is life imprisonment, a person found guilty of first-degree murder may
be eligible for parole after 25 years whereas someone convicted of second degree murder will be eligi-
ble for parole after 10 years (ibid at ss. 742, 744). Hate-motivated violence could be handled in a simi-
lar way by saying that the presence of a hateful motive does not alter the substantive offence committed
but, instead, makes the offence more serious and justifies increasing the maximum penalty beyond the
existing level. The key difference, of course, between the murder provisions and a sentencing-
enhancement approach to hate crime is that the penalty in murder remains the same, whereas the pen-
alty for violent offences would be increased where the offence was motivated by group hatred.

1995]

M. SHAFFER – Is BILL C-41 TOUGH ENOUGH?

For reasons which I will discuss below,” the first of these two options is more
appealing. While both proposals would have the effect of increasing sentences for
hate-motivated violence,’ recognizing this form of violence as a distinct offence is
a more powerful way of condemning such behaviour than simply providing for the
possibility of an increased sentence for the underlying crime. Either approach
would, however, be a stronger denunciation of hate-motivated violence than is Bill
C-41.

B. The Arguments In Favour of Enacting U.S.-Style Hate-CrimeLegislation

in Canada

Under Canada’s current law, the fact that an accused acted with a biased motive
in committing an offence does enter into the criminal process but only at the point
of sentencing. According to accepted sentencing principles, hatred acts as an ag-
gravating factor which increases the severity of the accused’s crime and, hence, the
sentence to be imposed. This principle was articulated in 1977 in R. v. Ingram,” a
case involving a vicious assault of a Tanzanian man by two young white men.” In
increasing the sentence imposed by the trial court, the Court of Appeal held that the
presence of racist hatred renders an assault particularly abhorrent:

It is a fundamental principle of our society that every member must respect the
dignity, privacy and person of the other. Crimes of violence increase when re-
spect for the rights of others decreases, and in that manner, assaults such as oc-
curred in this case attack the very fabric of our society. Parliament’s concern
for the incitement of racial hatred is reflected in s. 281 [now s. 319] of the
Criminal Code. An assault which is racially motivated renders the offence
more heinous. Such assaults, unfortunately, invite imitation and repetition by
others and incite retaliation. The danger is even greater in a multicultural, plu-
ralistic urban society. The sentence imposed must be one which expresses the
public’s abhorrence for such conduct and their [sic] refusal to countenance it.!3

‘3 See e.g. Wisconsin Statute, supra note 16.
39See Parts LB. and ILC., below.
o The second option might not be as effective in increasing sentences, since it does not compel
judges to impose a higher sentence where a crime is motivated by group hatred. Nonetheless, the ex-
perience in the United States has shown that, where provisions of this sort are invoked, they have lead
to the imposition of a higher penalty. See e.g., the trial court’s reasoning in Mitchell as described in
the United States Supreme Court’s judgment (Mitchell, supra note 17).

41 (1977), 35 C.C.C. (2d) 376 (Ont. C-A.) [hereinafter Ingram].
“”Me case does not explicitly state that the accused were white. However, this conclusion is readily
discerned from the court’s rendition of the facts. The court notes that before the assault, one of the ac-
cused had become verbally abusive and “racially insulted a non-white T.T.C. guard” (Ingram, ibid. at
378). Further, the court notes that the victim of the assault was a “brown-skinned native of Tanzania”
(ibid). By pointing out that the victim was non-white while failing to comment on the race of the ac-
cused, the court, in my view, relies on an unstated norm that people are white unless otherwise de-
scribed.
43 lngram, ibid at 379.

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A year later, in R. v. Atkinson,” the Ontario Court of Appeal applied this reason-
ing to homophobic assaults against gay men.” In 1991, the Attorney General of
Ontario issued guidelines to Crown Attorneys quoting the Ingram and Atkinson
decisions and stating that prosecutors should bring the presence of a racial motive
to the attention of the sentencing judge. The Attorney General re-issued these
guidelines in March 1993, following several widely-publicized incidents of racist
violence.” Thus, it appears to be accepted within Canadian criminal law that the
presence of a hate-based motive renders violent conduct more serious with the re-
sult that a more severe sentence should be imposed.

The provisions of Bill C-41 concerned with hate crime would simply codify
this practice. Section 718.2 of the Bill provides that a court imposing a sentence
shall consider “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” as aggravating
factors.” The fact that an accused was motivated by group hatred would thus lead
courts to impose a sentence towards the harsher end of the existing sentencing
range but would not permit the courts to increase the sentence beyond the maxi-
mum currently available.

Four arguments suggest that the law’s current treatment of hate crime –

and,
by implication, the provisions contained in Bill C-41 – may be inadequate and
support the creation of a distinct hate crime offence. First, making hate-motivated
violence into a distinct crime is recognition that such violence constitutes a specific
form of harm that differs in significant ways from other types of violence. Hate-
motivated violence is not simply an attack on the individual who happens to be the
immediate target of the assault but also constitutes an affront to minority communi-
ties and runs counter to Canada’s core values of equality and multiculturalism. The

4″(1978), 43 C.C.C. (2d) 342,5 C.R. (3d) S-30 [hereinafterAtkinson cited to C.C.C.].
“The trialjudge had not viewed the accuseds’ homophobia as an aggravating factor. In holding that

the trial judge had erred, the Court of Appeal stated:

The learned trial judge appears to have been of the opinion that what was stated in the
case of R. v. Ingram and Grimsdale, was not relevant since that case was concerned
with a racially motivated attack. While in R. v. Ingram and Grimsdale the attack was
racially motivated, the principles set forth in the judgment are not limited to such an
attack. The motive for the assaults in this case should have been considered by the trial
judge as an aggravating factor in imposing sentence. We think the learned trial Judge
erred in failing to give effect to this principle in imposing the sentences under appeal
(Atkinson, ibid. at 344).

“Specific guidelines were sent to Crown Attorneys in May 1993 to reinforce the importance of
seeking greater penalties where offences were hate motivated (see Ontario, Ministry of the Solicitor
General and Correctional Services, Release, “Justice Guidelines in Response to Hate Motivated
Crime” (22 July 1993)).
4′ Bill C-41, An Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequence
Thereof, 1st Sess., 35 Parl., 1994-1995, (as passed by the House of Commons 15 June 1995), cl. 178.
2(a)(i).

1995]

M. SHAFFER – IS BILL C-41 TOUGH ENOUGH?

accused’s selection of a victim by reason of race, religion, ethnicity, or sexual orien-
tation demonstrates that the violent conduct is directed not only at the immediate
victim but also at the entire group of which the victim is – or is perceived by the
perpetrator to be –
a member. Thus, hate-motivated violence is, in effect, a form of
group intimidation intended to express loathing towards a particular group and to
instill fear among that group as a whole.” As a result, hate-motivated violence af-
fects entire minority communities, because they know that they are all potential tar-
gets of such violence. Moreover, the harmful effects of hate-motivated violence di-
rected at members of one minority community may spill over to other minority
groups. Bigots seldom limit their hatred to one group and many members of minor-
ity groups know that, although they were not targeted this time, they could be next
on the list.’9

In addition, research in the United States indicates that hate-motivated violence
may be more brutal and result in greater physical and psychological injury to the
victim than other forms of violent conduct. In its brief to the United States Supreme
Court, the A.D.L. summarized one study in the following way:

Research on bias-motivated crimes is in its infancy, but the available evidence
indicates that these crimes are generally much more violent and have a signifi-
cantly greater community impact than other crimes. One researcher, for exam-
ple, analyzed 452 hate crime cases in Boston during the period between 1983
and 1987. The data revealed that 74% of bias-motivated assault incidents
(including assault and battery and assault with a dangerous weapon) involved
some physical injury to the victim. The national figure for all assault cases was
29%. Remarkably, these bias motivated assault incidents involved hospitaliza-
tion of their victims over four times more often than is the case with other as-
saults.’

According to a 1989 study conducted by the National Institute Against Prejudice
and Violence, also cited by the A.D.L., the psychological effects experienced by
victims of hate-motivated violence also tend to be more severe than for victims of

” This goal is often achieved. For instance, following a vicious beating of a Tamil man, his friends
told the media that “everybody in the Tamil community” was afraid not only of the attacks but of re-
taliation for reporting them (R. Dimanno, “The quiet dignity of a Tamil beaten by racists” The To-
ronto Star(16 June 1993) A7).

” In addition, bigots often fail to distinguish one minority group from another. For example, in the
much publicized murder of Vincent Chin, a Detroit autoworker beat a Chinese-American man to
death with a baseball bat because he believed Mr. Chin to be Japanese (see Levin & McDevitt, supra
note 22 at 58).

‘ A.D.L. Brief in Mitchell, supra note 32 at 7 [citations omitted]. The A.D.L. relied on J. McDevitt,
The Study of the Character of Civil Rights Crimes in Massachusetts (1983-1987) (Boston: Centre for
Applied Social Research, Northeastern University, 1989). See also Levin & McDevitt, ibid One rea-
son hate-motivated violence is likely to be more severe than other assaults is that it is often perpe-
trated by groups of offenders. Using information drawn from the National Crime Survey, Levin and
McDevitt reported that 64 percent of hate crime in the United States was committed by multiple of-
fenders as compared with 25 percent of all other violent crime (Levin & McDevitt, ibid. at 16).

McGiLL LAW JOURNAL/REVUE DEDROITDEMcGLL[o

[Vol. 41

violence that is not hate inspired. The study found that victims of hate-motivated
violence experience on average “21% more of the standard psychophysiological
symptoms of stress than did victims of similar acts of ordinary violence or abuse”.”
These results provide additional support for viewing hate-motivated violence as dif-
ferent from and more severe than other forms of violence.”

By requiring judges to consider the accused’s hateful motive at the time of
sentencing, Bill C-41 implicitly recognizes the harmful effects of hate-motivated
violence on minority communities and on Canadian society as a whole. However,
Bill C-41’s approach of redressing biased motives through the sentencing process
may not sufficiently underscore the distinctive nature of hate-motivated crime.
Prosecuting the accused with a standard, non-hate specific, offence may fail to em-
phasize the extent to which the accused’s action was an expression of hatred of an
entire group as effectively as would a prosecution under a specific hate-crime pro-
vision. Furthermore, under Bill C-41 the accused’s hateful motive can at most in-
crease his or her penalty to the existing maximum for the underlying offence. To
account fully for the extent of the individual and social harms caused by hate crime,
it is, I would argue, necessary to augment the penalties available for such crimes.

The second argument in favour of enacting provisions specifically directed at
hate crime derives from the role the criminal law plays in demarcating the bounda-
ries between acceptable and unacceptable conduct. By deeming certain activities to
be subject to state sanction, the criminal law plays a normative or symbolic role in
instructing citizens about the types of conduct that give rise to social disapproba-
tion. The symbolic aspect of the criminal law has featured prominently in feminist
scholarship.” For example, in advocating law reform to abolish the rule that a man
could not, by definition, rape his wife, ‘ and to ensure that spousal abuse is treated
seriously by police and prosecutors, ‘ many feminist scholars have argued that legal
rules or their selective implementation have created a cultural climate that condones
violence against women. The premise behind feminist arguments for changing the
law and for improving enforcement is that the messages enshrined in the criminal
law can be a powerful force in shaping attitudes and altering behaviour.’ The sym-
bolic aspect of the criminal law also has a role to play in combatting racism and

Quoted in the A.D.L. Brief in Mitchell, ibid at 8.

52 This research, however, is still in its preliminary phases, and there is no comparable body of Ca-

nadian research.

5 See e.g. C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.:
Harvard University Press, 1987); C. MacKinnon, Only Words (Cambridge, Mass.: Harvard University
Press, 1993); K. O’Donovan, Sexual Divisions in Law (London: Weidenfeld and Nicolson, 1985).

5″ In Canada, the United States, and England, the crime of rape was defined until recently to exclude
marital rape (see e.g. Criminal Code, R.S.C. 1970, c. C-34, s. 143). In Canada, this was not changed
until 1983 by An Act to Amend the Criminal Code, S.C. 1980-81-82, c. 125, ss. 6, 19.
55 See D. Martin and J. Mosher, “UnKept Promises: The Experiences of Immigrant Women and
with the Neo-Criminalization of Wife Abuse” (1995) 8 CJ.W.L. I [forthcoming].

‘ See S. Edwards, “Violence Against Women: Feminism and the Law” in L. Gelsthorpe & A.
Morris, eds., Feminist Perspectives in Criminology (Philadelphia: Open University Press, 1990) 145.

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M. SHAFFER – IS BILL C-41 TOUGH ENOUGH?

hate-motivated violence. Making hate-motivated violence into a distinct criminal
offence sends a strong normative message that such violence is unacceptable and
will not be tolerated in a society committed to pluralism. Considering motive in the
sentencing process is not as powerful a statement, since it does not constitute an
explicit denunciation of hate-motivated violence but treats hatred as only one of the
many factors going to the severity of the crime.

Third, one can argue that absent an explicit criminal provision condemning
hate-motivated violence, the criminal law fails to serve the needs of groups who are
most likely to be the victims of hate crime. The argument here is that the criminal
law has been formulated primarily by white men and reflects their views about the
type of behaviour that ought to be subject to criminal sanction. As white male law-
makers are far less likely to view themselves as potential victims of hate crime than
are members of minority groups.’ they may never have contemplated the criminal
law’s role in responding to hate crimes, nor viewed these crimes as requiring spe-
cific action. Although hate-motivated violence is not new to Canada,58 the fact that
hate crime has not been the subject of significant public disapproval until recently
supports this analysis. Since minorities are more likely to be targets of hate-
motivated violence than members of the majority group, 9 the absence of provisions
designed specifically to address such violence raises the question of whether the
criminal law confers equal protection on all citizens given the different types of
harm they are likely to face. If one accepts the previous arguments concerning the
distinctive nature of hate crime and the importance of the normative messages em-
bodied in the criminal law, the answer –
is that it does not.’

even after Bill C-41 –

5′ Some white men have been subject to hate-motivated violence. For example, Jewish men, al-
though racially “white”, and gay white men have been targets of hate-motivated violence, but histori-
cally neither had been in a strong position to influence the development of the criminal law.

” For an account of incidents culminating in the Christie pits-riot in Toronto in 1933, see Y. Glick-
man, “Anti-Semitism and Jewish Social Cohesion in Canada” in 0. McKague, ed., Racism in Canada
(Saskatoon: Fifth House, 1991) 45 at 51ff. See also S.A. Speisman, The Jews of Toronto: A History to
1937 (Toronto: McClelland & Stewart, 1979). For a study of the treatment of aboriginal. persons in
Canada, see Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba, vols. 1, 2 (Winnipeg:
Queen’s Printer, 1991). Additionally, the Ku Klux Klan has been operating in Canada since 1921,
when cross bumings and other activities were reported in and around Toronto, Hamilton, Ottawa,
Sault Ste. Marie, and Niagara Falls. By 1922, the Klan was also active in Western Canada, and impli-
cated in the deaths of ten students in the arson at St. Boniface College in Winnipeg (see W. Kinsella,
Web of Hate: Inside Canada’s Far Right Network (Toronto: Harper Collins, 1994) at llff.).

“‘ I use the terms “minority” and “majority” cautiously since how one constructs these terms will
vary according to the context. For example, in the case of racial violence, while “white” persons are
the majority, some will fall within minority groups in other contexts. A Jewish woman, notwithstand-
ing the colour of her skin, is part of a religious minority and a potential target of anti-Semitism. A gay
white man is also part of a minority group frequently subjected to hate-motivated violence.

6’ Hate-crime offences may be seen as an anti-discrimination measure within the criminal law. Just
as the goal of human-rights legislation is to ensure that minorities receive equal protection of the law,
hate-crime legislation would attempt to ensure that the criminal law addresses the harms minorities
are likely to suffer.

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Finally, the creation of a crime of intimidation may make it easier for authori-
ties to compile statistics on the incidence of hate crime. Assuning assiduous
charging and prosecution of conduct giving rise to intimidation, the level of hate-
motivated violence could be tracked by following the conviction rate for the of-
fence of intimidation, as well as for any other hate-specific offence.” Determining
the frequency of hate-motivated violence under the current system is, however,
more complicated since it requires scrutiny of all violence-related offences. In ad-
dition, since the hateful nature of the offence will not be apparent from the charge
itself, compilation of hate-crime statistics requires a recording and retrieval system
that takes into account the facts of the case and the factors considered in sentencing
and does not focus simply on the disposition. While this argument for creating a
specific hate crime is, perhaps, less compelling than the others, it is, nonetheless,
worthy of consideration. 2

II. Arguments Against U.S.-Style Hate-Crime Legislation

at least on the rhetorical level –

An examination of the criticism that U.S. hate-crime provisions have attracted
provides valuable insight into the potential pitfalls of enacting such provisions. De-
spite widespread agreement –
that hate crime is
deplorable, many commentators question the wisdom of enacting A.D.L.-style
hate-crime provisions. The most vociferous criticism has focused on the constitu-
tional validity of these provisions and, in particular, on their potential conflict with
free speech. Critics also question the effectiveness of hate-crime legislation, often
pointing to the fact that few convictions have been entered under such laws. Finally,
some critics question the appropriateness of using the criminal law to tackle prob-
lems as complex as group hatred. I will examine each of these objections to assess

“‘ Regardless of the regime in which one attempts to compile statistics on hate crime, vigorous
charging and prosecution are key. Anecdotal evidence from defence lawyers suggests that under the
current system, despite the Crown’s duty to bring a racist motive to the attention of the trial judge in
sentencing, in the course of plea bargaining the Crown and the defence sometimes agree to omit mo-
tive from the judge’s consideration. In these cases, the fact that the accused committed a hate crime
will not be recognized, with obvious implications for the collection of accurate hate-crime statistics.
The introduction of a crime of intimidation would not eliminate this problem. Plea bargaining would
continue to occur with the defence attempting to persuade the Crown to drop the charge of intimida-
tion in exchange for a conviction for the underlying violent offence. Even though this practice would
skew the collection of hate-crime statistics, data collection would still be easier for a discrete hate-
crime offence.

2 Similar arguments can be made for creating a crime of institutional vandalism. Most acts of insti-
tutional violence are currently prosecuted under the crime of mischief (see e.g. R. v. Moyer [1994] 2
S.C.R. 899, 92 C.C.C. (3d) 1). Just as prosecuting racist assault under the general offence of assault
fails to focus on the hateful aspect of the crime, prosecutions for mischief fail to emphasize the hate-
ful nature of institutional vandalism and its impact on the community being vandalized. There is also
symbolic value in the statement that vandalism for the purpose of expressing hatred is off limits. An
equal protection argument analogous to the one made in favour of the crime of intimidation can be
made to support an offence of institutional vandalism. Finally, confining prosecutions of hate-
motivated vandalism to a single offence would also facilitate the collection of statistics on hate crime.

19951

M. SHAFFER – Is BLL C-41 TOUGH ENOUGH?

if they assist in determining whether Canadians should eschew U.S.-style hate-
crime legislation in favour of the Bill C-41 approach. My analysis of these criti-
cisms suggests that there are no serious reasons why A.D.L.-style hate-crime legis-
lation should not be enacted in Canada.

A. Constitutional Concerns

Until the Supreme Court of the United States declared that Wisconsin’s hate-
crime provision did not violate the United States Constitution, concern that hate-
crime provisions were unconstitutional was widespread. Hate-crime provisions
were thought to violate the constitution in three ways: (1) by infringing the freedom
of speech and thought protected by the First Amendment; (2) by violating the guar-
antee of equal protection; and (3) by violating the due process clause of the Four-
teenth Amendment through vagueness. ‘3 Of these, the freedom of speech challenge
was viewed as the most damaging in light of the stringent protection courts in the
United States have accorded to speech.

Although the constitutional validity of hate-crime statutes is settled in the
United States, similar arguments could be made in Canada were U.S.-style hate-
crime legislation to be enacted. Thus, I will explore each of the above challenges,
as well as arguments against hate-crime legislation that could be brought under
section 7 of the Canadian Charter of Rights and Freedoms.” My focus throughout
this discussion will be to demonstrate that the Charter poses no impediments to the
enactment of U.S.-style hate-crime legislation in Canada.

1.

Freedom of Speech and Freedom of Expression

Until Mitchell, hate-crime statutes were viewed as violating free speech in two
ways: (1) they were seen to constitute a thought crime; and (2) they were regarded
as violating the doctrine of overbreadth. 6 On the basis of these arguments, hate-
crime provisions had been struck down by the supreme courts of Wisconsin and
Ohio.”

6 See U.S. Const. Amend. I, V, XIV 1. For a discussion of the vagueness doctrine, see McCrary v.

State 429 So. 2d 1121 (Ala. Ct. App. 1982) [hereinafter McCrary].

“Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

[hereinafter Charter].

“In the United States, overbreadth is an independent constitutional doctrine which applies solely to
First Amendment claims (see McCrary, supra note 63). For a detailed discussion of the overbreadth
doctrine in the United States, see Part IA. l.a., below. For a detailed discussion of the Canadian ver-
sion of the doctrine, see Part 1A. 1.b.iii., below.

“See: State v. Mitchell, 485 N.W.2d 807 (Wis. 1992) [hereinafter Mitchell (Wis. S.C.)]; State v.
Wyant, 64 Ohio St.3d 566, 597 N.E.2d 450 (1992) [hereinafter lRant I cited to NE.2d]. See contra
State v. Wyant, 68 Ohio St.3d 162, 624 N.E.2d 722 (1994) [hereinafter Wyant II cited to N.E.2d].

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a.

Hate Crimes as “Thought Crimes” and the Doctrine of
Overbreadth

The argument that hate-crime provisions punish thoughts derives from the fact
that the violent actions forming the basis of hate crimes are already criminal of-
fences. According to this argument, the only element differentiating hate-based of-
fences from “simple” offences is the accused’s expression of group hatred. Hate-
crime provisions, therefore, do nothing more than punish an accused’s hateful mo-
tive for engaging in, what is already, a criminal offence. This amounts to creating a
thought crime in which the accused is punished more severely for subscribing to
racist beliefs and for expressing them through violent conduct.67 While such beliefs
are undoubtedly heinous, the First Amendment prohibits the state from choosing
among competing viewpoints, thereby dictating to its citizens which opinions they
may hold.’ This protection is most important where the beliefs in question are
“reviled by society”‘ and are, consequently, more easily suppressed. Thus, while
the state is legitimately entitled to punish the accused’s violent conduct, it may not
increase the punishment on the basis of the discriminatory thought that motivated
the conduct.

The overbreadth argument is slightly more complicated. Unlike in Canada,
where overbreadth forms part of the proportionality analysis within section 1 of the
Charter or falls within a section 7 analysis,” in the United States, overbreadth exists
as an independent basis for challenging legislation under the First Amendment. The
overbreadth doctrine refers to laws which, though directed at an activity that the
government is entitled to control, sweep within their grasp activity protected by the
First Amendment. Where a protected activity is a significant part of the law’s tar-
get, and no satisfactory way of separating constitutional from unconstitutional ap-

61 The court in V5ant I framed its analysis in the following way:

The question before us is not whether the government can regulate the [violent] con-
duct itself. Clearly the government can, and has already done so by criminalizing the
behavior in the predicate statutes. The issue here is whether the government can punish
the conduct more severely based on the thought that motivates the behavior (Wyant I,
ibid. at 457 [footnotes omitted]).

6′ See, for example, the poetically expressed view of Justice Jackson in West Virginia State Board of
Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943) [hereinafter Barnette cited to U.S.]: “If
there is any fixed star in our constitutional constellation, it is that no official, high or petty, can pre-
scribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” (ibid. at
642).
WyRant I, supra note 66 at 458.
70 In R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 93 D.L.R. (4th) 36 [hereinafter
N.S. Pharmaceutical cited to S.C.R], the Supreme Court held that overbreadth was not an independ-
ent constitutional doctrine in Canada but, instead, is part of the minimal impairment component of the
section 1 proportionality test (ibid at 629). However, two years later, in R. v. Heywood, [1994] 3
S.C.R. 761, 120 D.L.R. (4th) 348, the Court held that overbreadth can be considered in determining
whether legislation conforms to the principles of fundamental justice in section 7.

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M. SHAFFER – IS BILL C-41 TOUGH ENOUGH?

plications of the law exists, the law will be void for overbreadth.7’ Invalidating the
entire law is appropriate because a gradual removal of the law’s unconstitutional
aspects would result in a chill on free speech; to avoid running afoul of the law, in-
dividuals would engage in self-censorship and refrain from validly exercising their
right to free speech. The importance of free speech within the constitutional
framework of the United States renders this situation unacceptable.

if not the only –

In the case of hate-crime statutes, the overbreadth argument stems from the use
of the accused’s statements as evidence that his or her crimes were inspired by hate.
The accused’s speech, uttered either during the incident or before it occurred, will
evidence that the accused com-
often be the most compelling –
mitted a hate crime. Relevant statements would clearly include blatantly racist
comments but, the argument goes, might also include less heinous speech, such as
ethnic jokes or remarks made in the course of serious intellectual inquiry. All of
these forms of speech are protected by the First Amendment. ‘ Thus, hate-crime
provisions are said to be overbroad because, by permitting the accused’s statements
to be used to prove an element of the offence, they sweep constitutionally protected
speech within their ambit. Susan Gellman, a vigorous opponent of hate-crime legis-
lation, puts this argument in the following way:

Anyone charged with one of the underlying offenses could be charged with …
[a hate crime] as well, and face the possibility of public scrutiny of a lifetime of
… ethnic jokes to serious intellectual inquiry. Awareness of this possibility
could lead to habitual self-censorship of … one’s ideas, and reluctance to read
or listen publicly to the ideas of others, whenever one fears that those ideas
might run contrary to popular sentiment on the subject of ethnic relations.”

In other words, hate-crime legislation might have a chilling effect on speech as
people would be forced to censor themselves in order to avoid prosecution for a
hate crime should they, at some future point, commit a violent act.

For reasons which Canadian courts would likely find instructive, the Supreme
Court of the United States rejected both the thought-crime and overbreadth argu-
ments in Mitchell. That case involved the prosecution of an African-American man
for an assault on a white youth under Wisconsin’s hate-crime statute. Mitchell and a
number of other African-American men and youths had been discussing a scene
from the movie Mississippi Burning,7’ in which a group of white men beat a young
African-American boy who was praying. In the course of this discussion, Mitchell

at 1022.

See L.H. Tribe, American Constitutional Law, 2d ed. (Mineola, N.Y.: Foundation Press, 1988)
72 In U.S. jurisprudence, bigoted comments are protected speech so long as they do not fit within
one of the categories of speech exluded from constitutional protection. Types of speech outside of
First Amendment protection include obscenity and “fighting words” (R.A.V v. St. Paul, 112 S. Ct.
2538, 120 L. Ed. (2d) 305 (1992) [hereinafter R.A.V cited to S. Ct.]).
73 Gellman, supra note 19 at 360-61.
7,Alan Parker, dir. (Orion Pictures, 1988).

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asked the group whether they felt “hyped up to move on some white people?”
Shortly after, a white youth walked by and Mitchell said, “You all want to fuck
somebody up? There goes a white boy; go get him.”7 Mitchell then counted to three
and pointed in the youth’s direction. The group beat the boy so severely that he was
in a coma for four days. Mitchell was convicted of aggravated battery. Although the
maximum penalty for aggravated battery is normally imprisonment for two years,
Wisconsin’s hate-crime provision increased the maximum to seven years where the
offence had been motivated by group hatred.” The court sentenced Mitchell to four
years imprisonment because his actions had been motivated by racial hatred.
Mitchell appealed the increase of his sentence, arguing that Wisconsin’s hate-crime
provision violated the United States Constitution, and in particular, that it violated
his constitutional guarantee of free speech.

The Supreme Court of the United States gave three principal reasons for reject-
ing Mitchell’s “thought crime” challenge. First, the Court stressed that judges
passing sentence have traditionally considered the accused’s motive for acting, and
that using motive as either a m11itigating or aggravating factor in sentencing was en-
tirely appropriate.” Even where the accused’s motive could be said to consist of
discriminatory thoughts or beliefs, nothing in First Amendment jurisprudence pre-
vented courts from taking these motives into account. While it would be impermis-
sible to increase an accused’s sentence simply because he or she held offensive be-
liefs, where the beliefs related directly to the crime, the guarantee of free speech did
not prohibit consideration of the reasons the accused acted.”

” Mitchell, supra note 17 at 2196.
76Ibid. at 2196-197.
” Wisconsin Statute, supra note 16 at 939.645(l)(b). The provision permitted enhancement of the
maximum penalty for violent offences where the accused “[i]ntentionally select[ed] the person
against whom the crime is committed … because of the race, religion, color, disability, sexual orienta-
tion, national origin or ancestry of that person”. The statute was amended in 1992, though the
amendments do not concern the issue at hand (see infra note 136).

7 See Mitchell, supra note 17 at 2199. The Court’s reasons here are somewhat less than satisfactory,
as they fail to explain precisely why it is legitimate to consider the accused’s motive in passing sen-
tence.
71 The Court explained this distinction by reference to its decisions in Dawson v. Delaware, 112 S.
Ct. 1093, 117 L. Ed. (2d) 309 (1992) [hereinafter Dawson cited to S. CL] and Barclay v. Florida, 463
U.S. 939, 103 S. Ct. 3418 (1983) [hereinafter Barclay]. In Dawson, the Court held that at a hearing as
to whether the accused should be subject to the death penalty, the State could not introduce evidence
that Dawson was a member of a white-supremacist prison gang. That evidence, they said, shed no
light on the severity of the crime Dawson had committed and “proved nothing more than Dawson’s
abstract beliefs” (Dawson, ibid. at 1098). In rejecting the admissibility of this evidence, the Court
stated: “mhe Constitution does not erect a per se barrier to the admission of evidence concerning
one’s beliefs at sentencing simply because those beliefs and associations are protected by the First
Amendment” (Dawson, ibid. at 1094). In Barclay, the Court held that evidence that the accused be-
longed to the Black Liberation Army and desired to provoke a race war was admissible in sentencing
as it was directly related to the murder of a white man of which he had been convicted.

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M. SHAFFER – Is BILL C-41 TOUGH ENOUGH?

Second, the Court noted that intimidation provisions simply formalize existing
judicial practice by providing, as a matter of policy, that hate crimes merit stiffer
sentences. There was nothing wrong in legislating an increase in the maximum
sentence available for crimes motivated by hatred since “the primary responsibility
for fixing criminal penalties lies with the legislature.”‘
In the Court’s view, the
State’s justification for this increase –
that hate-inspired violence inflicts greater
individual and societal harm – provided “an adequate explanation for its penalty-
enhancement provision over and above mere disagreement with offenders’ beliefs
and biases.”” In accepting the validity of this justification, the Court quoted Black-
stone: “[I]t is but reasonable that among crimes of different natures those should be
most severely punished, which are the most destructive of the public safety and
happiness.”‘

Finally, the Court drew an analogy between the use of motive in hate-crime
provisions and the use of motive in anti-discrimination laws: both types of statutes
use motive in the same way, namely, to prove that a person acted in a discrimina-
tory fashion. Citing an earlier decision”3 that established that anti-discrimination
laws comport with the First Amendment, the Court held that the guarantee of free
speech posed no constitutional impediment to the use of motive in hate-crime pro-
visions.” Thus, primarily on the basis that courts may legitimately consider motive
in sentencing, the United States Supreme Court rejected the argument that Wiscon-
sin’s hate-crime provision created a thought crime and, thereby, violated the First
Amendment.

The Court rejected Mitchell’s overbreadth argument with only summary con-
sideration. The chill argument, the Court noted, depended on “the prospect of a
citizen suppressing his bigoted beliefs for fear that evidence of such beliefs will be
introduced against him at trial” should he or she in the future commit a serious of-
fence. The Court deemed this prospect too speculative to sustain an overbreadth
claim.’ In addition, the Court noted that the First Amendment does not prevent the
introduction into evidence of an accused’s speech to establish the existence of a
motive to commit an offence or of the mental state required for criminal culpability.

“Mitchell, supra note 17 at 2200.
“Ibid at 2201.
‘5W. Blackstone, Commentaries on the Laws of England, C.M. Haar, ed., vol. 4 (Boston: Beacon

Press, 1962) at 14, cited ibid

“See Hishon v. King & Spalding, 467 U.S. 69, 104 S. Ct. 2229 (1984).

The Court also noted that nothing in Mitchell contradicted its decision in R.A.V In that case, the
Court held that a municipal ordinance prohibiting the use of words that insult or that are likely to pro-
voke violence on the basis of race, color, creed, religion or gender violated the First Amendment in
that it prohibited only some insults or words likely to provoke violence and, thus, was not content
neutral (R.A.V, supra note 72). The Court distinguished the cases on the grounds that the ordinance in
R.A.V “was explicitly directed at expression”, whereas the statute in Mitchell was “aimed at conduct
unprotected by the First Amendment” (Mitchell, supra note 17 at 2200-201).

“See Mitchell, ibid. at 2201. The Court also characterized the chill argument as “far more attenu-

ated and unlikely than that contemplated in traditional ‘overbreadth’ cases” (ibid).

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On the contrary, accused persons’ statements are routinely used for these purposes
so long as they comport with evidentiary rules of relevance and admissibility. Use
of the accused’s speech as evidence that his or her actions were hate inspired did
not, the Court concluded, render hate-crime provisions invalid on the basis of over-
breadth.

b.

Hate-Crime Provisions and Section 2(b) of the Charter

While arguments similar to the thought crime and overbreadth challenges could
be made under section 2(b) of the Charter, differences in wording between the Ca-
nadian and U.S. constitutional guarantees as well as differences in constitutional
doctrine would result in the arguments taking a different form. In the United States,
it is necessary to argue that hate-crime provisions punish thought rather than con-
duct to receive protection under the constitutional guarantee of free speech. No
such maneuvering need occur in Canada, however, under the more broadly framed
Constitutional guarantee of freedom of expression, which protects most forms of
expressive conduct.” To separate the “thought” aspect of hate crime from the
“conduct” aspect would, in fact, be at odds with the Canadian approach to freedom
of expression, which considers both the form and content of the expression in
question. The Canadian equivalent of the thought-crime argument would focus
squarely on hate-motivated violence as a form of expressive activity that conveys
messages about particular groups. The argument would be as follows: because hate
crime is expressive activity, punishing it more severely than other forms of criminal
activity restricts the accused’s right to express certain ideas in a violent form.

The overbreadth argument would be recast in a similar fashion. As in the
United States, the argument in Canada would be that the prosecution might use
statements the accused made before the violent act to prove that the accused acted
out of hatred. So long as these statements did not fall afoul of the hate-propaganda

“6 U.S. jurisprudence has interpreted the First Amendment as protecting speech and not conduct.
However, the distinction between speech and conduct is not always clear. A useful discussion of the
way courts in the United States have drawn this distinction is found in the California case of Re
Joshua H, 17 Cal. Rptr.2d 291 (Ct. App. 1993) [hereinafter Joshua H], which upheld California’s
hate-crime provision. The court explained the speech/conduct distinction as follows:

Of course, the distinction between speech and conduct is not as clear-cut as the last
paragraph suggests. Some conduct is so “expressive” that it is entitled to First Amend-
ment protection. Examples include flag desecration and burning … displaying of a red
flag … wearing of black armbands to show opposition to war … draft card burning …
and peaceful demonstration and picketing … To be protected as “expressive conduct,”
the acitivity must be “sufficiently imbued with elements of communication to fall
within the scope of the First and Fourteenth Amendments,” for as the court noted in
United States v. O’Brien, “‘[w]e cannot accept the view that an apparently limitless va-
riety of conduct can be labeled “speech” whenever the person engaging in the conduct
intends thereby to express an idea.”‘ (Joshua H, ibid at 299 [citations omitted]).

This approach to the guarantee of free speech is very different from the Canadian approach to the

definition of free expression.

1995)

M. SHAFFER – Is BILL C-41 TOUGH ENOUGH?

provisions of the Criminal Code, they might well be protected under section 2(b) of
the Charter Allowing the accused’s speech to be used in evidence could be said to
have a chilling effect on constitutionally acceptable expression, if there is a risk that
people will desist from making bigoted statements as a result of the enactment of
hate-crime provisions. Thus, by permitting the accused’s non-violent expressions of
group hatred –
and perhaps even the accused’s associations with groups known to
espouse bigoted ideas –
to be used as evidence of his or her hateful motive, hate-
crime provisions could be said to have the effect of violating section 2(b)” –
and
potentially section 2(d), freedom of association.’

Before subjecting each of these arguments to a formal section 2(b) analysis,
some general comments on their persuasiveness should be made. For both political
and jurisprudential reasons, the Canadian equivalents of the thought-crime and
overbreadth arguments would not prove as vexing to hate-crime legislation as their
counterparts have in the United States. First, as a general matter, there is greater
social tolerance for measures designed to combat discrimination in Canada than in
the United States.” Although Canada, like the United States, has experienced its
share of historical racism, and bigotry continues to be a pressing concern,” Cana-

“7 As I argue in greater detail, below, framing this argument as an independent violation of section
2(b) arising from the effects of hate-crime legislation more accurately captures the nature of the over-
breadth argument than does subsuming it in the section 1 analysis.

” A similar argument could be made for freedom of association. Subject to concerns of admissibil-
ity, to be discussed below at text accompanying notes 147-57, the accused’s association with groups
known to espouse racist ideas could also be used as evidence that the accused committed a hate
crime. For the reasons I discuss, below, at Part HIA.l.b.ii, I do not think this argument would be suc-
cessful.

” For example, the absence of any significant public outcry following R. v. Keegstra, [1990] 3
S.C.R. 697, 61 C.C.C. (3d) 1 [hereinafter Keegstra cited to S.C.R.], suggests that Canadians accept
the hate crime provisions of the Criminal Code as a valid anti-racist measure. In the United States,
provisions of this sort would likely be met with great hostility. For a discussion of the problems of en-
acting hate speech provisions in the United States, see M. Matsuda, “Public Response to Racist
Speech: Considering the Victim’s Story” (1989) 87 Mich. L. Rev. 2320.

“Instances of racism in Canada’s past include the long and brutal history of the treatment of First
Nations peoples at the hands of European Canadians. People of African origin were enslaved within
Canada, particularly in Maritime provinces and in parts of Ontario, until the practice was outlawed
throughout the British Empire in 1833. The Canadian government implemented restrictive immigra-
tion policies, the most notorious of which was the head tax on Chinese immigrants, to limit the num-
ber of non-white immigrants to Canada. It also ordered the internment of Japanese-Canadians during
the Second World War. Anti-Semitism has also been a prominent feature of the Canadian historical
landscape (see: Glickman, supra note 58; J.L. Elliott & A. Fleras, “Immigration and the Canadian
Ethnic Mosiae” in P.S. Li, ed., Race and Ethnic Relations in Canada (Toronto: Oxford University
Press, 1990) 51; J.S. Frideres, “Policies on Indian People in Canada” in Li, ed., ibiel 98; H. Johnston,
The Voyage of the Komagata Maru: The Sikh Challenge to Canada’s Colour Bar (Dehli: Oxford Uni-
versity Press, 1979); K.V. Ujimoto, “Racism, Discrimination and Internment: Japanese in Canada” in
B.S. Bolaria & P. Li, eds., Racial Oppression in Canada, 2nd ed. (Toronto: Garamond Press, 1988)
127; B.S. Bolaria & P. Li, “From Slavery to Indentured Labour. Blacks in Canada” in Bolaria & Li,
eds., ibid., c. 8.

“, For example, in both Toronto and Montreal there have been suspicious police shootings of people

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dians, rightly or wrongly, pride themselves on being an accommodating and toler-
ant nation in which newcomers can celebrate their ethnicity, rather than feeling that
they have to shed their cultural identity at the border. Canadians are also less likely
than those in the U.S. to conceive of violent expressions of group hatred as impli-
cating a constitutional right, much less a right to expression. Within the Canadian
social and political context, hate-crime provisions are apt to be seen as one of many
available tools to eradicate racism and promote congenial ethnic relations, rather
than as illegitimate government intrusion on free expression.

Second, ‘Canadian jurisprudence, informed by this social and political context,
suggests that hate-crime legislation would withstand scrutiny under section 2(b) of
the Charter. Based on the Supreme Court’s approach to freedom of expression,
there are strong reasons to believe that hate-crime provisions would not violate
section 2(b) on either argument.’ Even if the provisions were found to violate sec-
tion 2(b), the Supreme Court in Keegstra and R. v. Butler’ demonstrated its will-
ingness to uphold restrictions on free expression where the expression in question
conflicts with important social values and only minimally advances the interests
that freedom of expression is meant to protect. This suggests that hate-crime provi-
sions could be upheld under section 1.

The Canadian Equivalent of the Thought-Crime
Argument

While the Supreme Court has never specifically considered whether violent
forms of expression are protected under section 2(b), its decisions clearly imply
that expression taking a violent form will not be constitutionally protected. Despite
embracing a wide and inclusive interpretation of expression within section 2(b), the
Supreme Court has, from its earliest pronouncement on freedom of expression in

who are members of minority groups (see e.g.: G. Baker, “Police racist toward blacks: coroner” The
[Montreal] Gazette (7 May 1992) Al; R. DiManno, “Unit that probes police shootings being emascu-
lated” The Toronto Star (5 October 1994) A7), and in Toronto police are alleged to have subjected a
Jamaican tourist to a strip search on the street (see e.g.: P Mascoll, “Police strip search outrages Ja-
maican visitor” The Toronto Star (13 September 1993) A6; P. Mascoll, “Police report on strip search
leaves questions” The Toronto Star (16 October 1993) A22). Racism in the armed forces has been ex-
posed through the international embarrassment of the Somalia affair, and in the Canadian Legion ar-
guably racist views surfaced over the issue of permitting veterans to wear turbans. In addition, overtly
racist individuals (including Ernst Zundel and Jim Keegstra) and groups (including the Ku Klux Klan
and the Heritage Front) remain active in Canada. For an academic treatment of racism in the 1990s,
see V. Satzewich, Deconstructing a Nation: Immigration, Multiculturalism & Racism in ’90s Canada
(Halifax: Femwood, 1992).

921 will make this argument at Part T/A. 1.b.i., below.
9′ [1992] 1 S.C.R. 452, 89 D.L.R. (4th) 449 [hereinafter Butler cited to S.C.R.]. In Butler the Su-
preme Court found that the obscenity provisions of the Criminal Code which prohibited the distribu-
tion and sale of obscene material (supra note I1 at s. 163) violated section 2(b), but upheld the provi-
sions under section 1. The case is an example of the Supreme Court’s willingness to permit limita-
tions on expression, provided the limitations are in service of important social interests and realized in
a way as to be proportionate to Parliament’s objectives.

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M. SHAFFER – Is BILL C41 TOUGH ENOUGH?

R.W.D.S.U. v. Dolphin Delivery Ltd.,’ clearly stated that violence is a form of ex-
pression that will not be given constitutional protection. The Court has reiterated
the exclusion of violence from section 2(b) in subsequent cases. For example, in
Irwin Toy Ltd. v. Quebec (A.G.),”‘ in which the Supreme Court established the
framework for analyzing freedom of expression claims, the Court drew a distinc-
tion between regulating expression based on its form and regulation based on con-
tent. While section 2(b) protects the content or substance of expression regardless
of the meaning conveyed, it does not protect all forms of expression.’ Physical
violence is an unprotected form. Thus, although freedom of expression will prima
facie protect any attempt to convey meaning,” and although violence may have ex-
pressive content, expressive activity that takes a violent form will lose its constitu-
tional protection. Hate-motivated violence would seem to fit squarely within what
the Court described in Keegstra as the “rare cases” in which an activity with ex-
pressive content is not protected by section 2(b) because it is “communicated in a
physically violent form”.

This conclusion may give rise to the concern that exempting all violent forms
of expression from scrutiny under section 2(b) of the Charter would allow the state
to punish certain messages expressed through violence more harshly than others
based on the content of the message being conveyed. For example, one might argue
that if violent messages are not protected by section 2(b), nothing prevents Parlia-
ment from amending the Criminal Code to provide that violence deemed “political”
should be subject to twice the normal penalties of “non-political” violence. To pre-
vent this, one could argue that it is necessary to confer section 2(b) protection on
expression of a violent nature. This argument, however, fails to take into account
the presence of other rights in the Charter that limit the state’s ability to enact re-
strictive provisions in the criminal realm. As I will argue below,” the concern that
the state should not be free to make content-based distinctions within the category
of violent forms of expression is addressed more appropriately under section 7 of
the Charter.

94[1986] 2 S.C.R. 573,33 D.L.R. (4th) 174.
9′[1989] 1 S.C.R. 927,58 D.L.R. (4th) 577 [hereinafter Irwin Toy cited to S.C.R.].
” See ibid at 968-70. This distinction was reiterated in Keegstra, supra note 89 at 729, 731 and in
Reference Re ss. 193 and 195 of the Criminal Code, [1990] 1 S.C.R. 1123, 56 C.C.C. (3d) 65
[hereinafter Prostitution Reference cited to S.C.R.], where Lamer J. (concurring) noted that unpro-
tected forms of expression often involve “direct attacks on the physical integrity and liberty of an-
other” (ibid. at 1182).
97 The Court stated:

We cannot, then, exclude human activity from the scope of guaranteed free expression
on the basis of the content or meaning conveyed. Indeed, if the activity conveys or at-
tempts to convey a meaning, it has expressive content and prima facie falls within the
scope of the guarantee (Irvin Toy, supra note 95 at 969).

98 Keegstra, supra note 89 at 729.
” See the discussion, below, at Part IIA.4.

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Assuming that courts continue to adhere to the distinction between restrictions
on the form of expression and restrictions on its content, I am of the view that the
Canadian equivalent of the thought-crime argument would be rejected. In the event
that a court were to depart from this analysis and hold that a hate-crime statute did
violate section 2(b), however, I believe that the violation would be justified under
section 1.

ii.

Section 1 of the Charter

The Supreme Court’s analysis in Keegstra provides a useful basis for predicting
the fate of hate-crime provisions under a section 1 analysis. Keegstra involved a
challenge to one of the hate-propaganda provisions of the Criminal Code –
section
319(2) – under section 2(b) of the Charter. Section 319(2) made it an offence to
communicate statements, other than in private conversation, to wilfully promote
hatred of a group identifiable by colour, race, religion, or ethnic origin. The Su-
preme Court agreed that this provision violated freedom of expression because it
restricted the non-violent expression of ideas but held – by a five-to-four majority
that the violation could be justified under section 1. Given the similarity between

the expression prohibited by the hate-propaganda provisions and the expressive as-
pect of hate-inspired violence, the Keegstra analysis would have a direct bearing on
a determination of the validity of hate-crime legislation under section 1.

Three aspects of the Court’s reasoning in Keegstra are of particular relevance.
The first concerns the Court’s discussion of the government’s objective in seeking
to curtail hate propaganda. Both the majority and the dissent characterized this ob-
jective as twofold: (1) preventing harm to members of groups targeted by hate
propaganda and, thus, safeguarding individual dignity; and (2) protecting society
from the social discord, including violence, that might result from the acceptance of
hateful messages.'” Both judgments stressed the importance of this objective and
agreed that it satisfied the first hurdle of the Oakes”‘ test. The objective of hate-
crime legislation would closely parallel that of section 319(2). It could be described
as recognizing the distinct harm which hate-motivated violence poses to the indi-
vidual victims of that violence, to the group(s) to which the individual belongs, to
other minority groups, and to Canadian society generally. The similarity between
the objectives suggests that hate-crime legislation would satisfy the first branch of
the Oakes test.

Second, the majority regarded the message contained in hate propaganda as
tenuously linked to the three core values which are protected by freedom of ex-
pression: (1) the search for truth; (2) participation in the political process; and (3)
individual self-fulfilment.'” This is significant since the Supreme Court has repeat-

.. Keegstra, supra note 89 at 736-37, Dickson C.L; and at 811-12, McLchlin J.
… R v. Oakes, [1986] 1 S.C.R. 103,53 O.R. (2d) 719 [hereinafter Oakes].
In See Keegstra, supra note 89 at 759-67, Dickson CJ. In contrast, McLachlin J. held that hate

propaganda implicated all three values (see ibid at 864).

1995]

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edly held that restrictions on types of expression that lie on the periphery of free-
dom of expression will be easier to justify under the proportionality part of the
Oakes test than limitations on types of expression which are close to the core.” In
the majority’s view, hate propaganda failed to promote the search for truth since
there was very little chance that statements intended to promote hatred would be
true or that the vision of society implicit within such statements would lead to a
better world.’ Hate propaganda also failed to advance the value of individual ful-
filment since the articulation of hatred conflicts with the individual fulfilment of
members of a targeted group.” Finally, the wilful promotion of hatred against an
identifiable group could not be seen to foster participation in the political process
since the view that not all persons are entitled to equal dignity and respect, inherent
within statements promoting hatred, is inimical to the democratic participation of
all persons.

All these arguments could be made even more strongly in the case of expres-
sion curtailed by hate-crime provisions. Violent expressions of group hatred are
even more tenuously related to the values underlying freedom of expression than
the promotion of group hatred through non-violent means. While it is possible to
reject the majority’s view and to argue that non-violent expressions of group hatred
have some social value –
it is much more difficult
to claim that violent expressions of hatred have any redeeming social value worthy
of constitutional protection.

as did the dissent in Keegstra –

Finally, there is much to suggest that even the dissenting justices in Keegstra
would have an easier time upholding hate-crime provisions under section 1. The
dissent found that the hate-propaganda provisions failed all three components of the
Oakes proportionality test based on flaws from which hate-crime provisions, ar-
guably, do not suffer. They found that the provision lacked a rational connection to
the government’s objective because it potentially promoted, rather than curtailed,
racist speech through the media coverage given the accused’s message during his or

103 Wilson J. (concurring) in Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326, 64 D.L.R.

(4th) 174 [hereinafter Edmonton Journal cited to S.C.R.] stated:

One virtue of the contextual approach, it seems to me, is that it recognizes that a par-
ticular right or freedom may have a different value depending on the context It may
be, for example, that freedom of expression has greater value in a political context than
it does in the context of disclosure of the details of a matrimonial dispute. The contex-
tual approach attempts to bring into sharp relief the aspect of the right or freedom
which is truly at stake in the case as well as the relevant aspects of any values in com-
petition with it (Edmonton Journal, ibid at 1355-356).

See also: Prostitution Reference, supra note 96 at 1136; Rocket v. Royal College of Dental Sur-
geons, [1990] 2 S.C.R 232 at 246-47, 71 D.L.R. (4th) 68; Butler, supra note 93 at 500-501. In Keeg-
stra, the majority explicitly held that the violation of section 2(b) was easier to justify because the ex-
pression curtailed by section 319(2) “stray[ed] some distance from the spirit of s. 2(b)” (Keegstra, su-
pra note 89 at 766).

‘”See Keegstra, ibid at 762-63.
, See ibid at 763.

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her prosecution.'” The provision failed the minimal-impairment test because it was
overbroad, catching more expressive conduct than could be justified by the objec-
tives of promoting social harmony and individual dignity,” and because non-
criminal remedies were available to combat hate propaganda. Finally, the provision
failed the last element of the Oakes test; in the dissent’s view, non-violent hate
propaganda implicated all three values at the core of freedom of expression –
the
search for truth, participation in the democratic process, and individual self-
fulfilment –
and, therefore, the benefit derived from the legislation did not out-
weigh the magnitude of the violation.

It would be difficult to argue that hate-crime provisions are not rationally con-
nected to the objective of recognizing and redressing the harms that hate-motivated
violence causes. Increasing the maximum penalty available for violent crimes mo-
tivated by hatred is rationally linked to the desire to acknowledge that such conduct
inflicts great harm on individual victims, on minority groups, and on the larger so-
ciety. As a result, hate-crime provisions are not prone to the rational connection
criticism that McLachlin J., writing for the dissent in Keegstra, levied against sec-
tion 319(2). McLachlin J. was of the view that criminal hate-propaganda laws are
not rationally connected to the objective of protecting minority groups from harm
because the criminal prosecution of persons accused of wilfully spreading hatred
serves to give hatemongers a public platform they otherwise would not have. This
concern would be far less compelling in the case of hate-motivated violence. While
prosecutions under section 319(2) would focus on the content of the accused’s
statements and whether the accused intended to foment hatred, trials for hate-
motivated violence would focus on the violent act of the accused, and whether it
was motivated by racial animosity. Since proof of racial enmity would not generally
involve detailed scrutiny of an accused’s non-violent writings or statements ‘”3 but
would, instead, focus on statements the accused made at the time of the assault,
hate-crime prosecutions are unlikely to provide the accused with a platform for ar-
ticulating and defending racist beliefs.

,0,McLachlin J. also questioned the effectiveness of section 319(2) on the basis that the hate-
propaganda laws existing in Germany in the 1930s did not prevent the Nazi rise to power and the
subsequent atrocities (see Keegstra, ibid. at 854).

” The dissent was concerned that its definition of “offending speech” would catch expressions that
should be protected by the Charter. In particular, the dissent worried that the wide range of meaning
attributable to the word “hatred”, the imprecision entailed in determining whether an accused could
raise the defences that the statements were made in good faith on religious subjects or were state-
ments on matters of the public interest that he or she believed to be true, and the fact that the section
applied to all forms of public communication would have a chilling effect on expression (see Keeg-
stra, ibid at 855).

.0 Subject to concerns about admissibility, such statements might, however, be introduced into evi-
dence in some cases. For example, if the accused is charged with a hate crime in a beating of a Jewish
man and is the author of a number of anti-Semitic diatribes, the sentiments contained within those
writings would be relevant to the issue of whether the attack was motivated by anti-Semitism (see text
accompanying notes 150ff).

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M. SHAFFER – IS BiLL C-41 TOUGH ENOUGH?

Hate-crime provisions also do not suffer from the same minimal-impairment
concerns McLachlin J. perceived in section 319(2). Although her reasons were’not
altogether clear, she appeared to hold the view that the section failed the minimal-
impairment part of the Oakes test because, through a combination of overbreadth
and vagueness, it caught more expressive activity than its objective warranted. Sec-
tion 319(2) was overbroad, according to McLachlin J., because it potentially cov-
ered a wide range of expression with the result that people who made statements
“primarily for non-nefarious reasons”” could be subject to criminal conviction.
McLachlin J.’s concern stemmed primarily from her view that the term “hatred”
was vague and subjective and, therefore, capable of denoting a broad spectrum of
emotions ranging from “the most powerful of virulent emotions lying beyond the
bounds of human decency”, on the one hand, to “active dislike”, on the other.”‘
Thus, people could be convicted under section 319(2) for making statements de-
signed to contribute to political or social debate where they knew that their state-
ments would have the effect of promoting dislike of a group, even if they did not
actually desire to promote hatred.”‘ In addition, because section 319(2) applied to
all statements other than those made in private conversation, McLachlin J. ex-
pressed concern that “the circumstances in which the offending statements are pro-
hibited [are] virtually unlimited. ‘”2 Thus, forms of expression on which society
places a high value could conceivably fall afoul of section 319(2): “Speeches are
caught. The comer soapbox is no longer open. Books, films and works of art –
all
these fall under the censor’s scrutiny because of s. 319(2) of the Criminal Code.””3

” Keegstra, supra note 89 at 857.
“Ibid at 855-56.
. McLachlin J.’s reasoning was based on her interpretation of the term “wilful”. She accepted the
definition set down by the Ontario Court of Appeal in R. v. Buzzanga (1979), 25 O.R. (2d) 705, 101
D.L.R. (3d) 488, as either proof of intention or conscious purpose to promote hatred or proof that the
accused foresees that the promotion of hatred against an identifiable group is certain to result from the
communication.

“,2 Keegstra, supra note 89 at 858-59.
“. Ibid. at 859. McLachlin J. also believed the vagueness in the definition of the hateful expression
prohibited by section 319(2) would have a substantial chilling effect on valid expression. As she viv-
idly put it:

Given the vagueness of the prohibition of expression in s. 319(2), one may ask how
speakers are to know when their speech may be seefi as encroaching on the forbidden
area. The reaction is predictable. The combination of overbreadth and criminalization
may well lead people desirous of avoiding even the slightest brush with the criminal
law to protect themselves in the best way they can –
by confining their expression to
non-controversial matters. Novelists may steer clear of controversial characterizations
of ethnic characteristics, such as Shakespeare’s portrayal of Shylock in “The Merchant
of Venice”. Scientists may well think twice before researching and publishing results of
research suggesting difference between ethnic or racial groups. Given the serious con-
sequences of criminal prosecution, it is not entirely speculative to suppose that even
political debate on crucial issues such as immigration, educational language rights,
foreign ownership and trade may’be tempered. These matters’go to the heart of the
traditional justifications for protecting freedom of expression (Keegstra, ibid at 860).

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It is difficult to see how a. hate-crime provision would be vulnerable to
McLachlin J.’s overbreadth concerns. Whereas it was possible to argue that the
legislation in Keegstra would capture too much non-violent expression because it
specifically targeted non-violent statements in a broad and undefined fashion, the
same argument does not arise in hate-crime provisions. Hate-crime provisions re-
strict a narrow and clearly delineated form of expression, namely, violent expres-
sions of group hatred. Since there could be no prosecution without an act of vio-
lence, under no circumstances could hate-crime provisions sweep non-violent ex-
pressions of bigotry – however heinous these may be – within their ambit. Hate-
crime provisions could only be said to be overbroad insofar as they risked encom-
passing too much violence –
that is, violent acts that are not, in fact, motivated by
group hatred. Since the prosecution would be required to prove the accused’s hate-
based motivation beyond a reasonable doubt, this is not likely to be a problem.”‘

Finally, hate-crime provisions would not be vulnerable

to the concerns
McLachlin J. raised under the last part of the Oakes test –
that of proportionality
between the objective of the legislation and its effects. McLachlin J.’s reasoning in
Keegstra was based on her view that the kind of non-violent expression prohibited
by section 319(2) of the Criminal Code implicated the values on which freedom of
expression was founded. In the context of hate-motivated violence, this argument is
difficult to sustain since the expression of hatred through violence can hardly be
said to strike at the heart of section 2(b). The highly tenuous nature of the expres-
sion involved in hate-motivated violence could hardly outweigh the benefit that
hate-crime provisions would seek to confer.

Keegstra, therefore, suggests that even if hate-crime provisions were found to
violate section 2(b) of the Charter because they impose a higher penalty on vio-
lence intended to promote group hatred than on other forms of violence, they would
still be sustained under section 1. Further support for this view can be derived from
Butler in which the Supreme Court unanimously held that the obscenity provisions
of the Criminal Code could be justified under section 1 even though these provi-
sions violated section 2(b). As in Keegstra, the Court’s reasoning was based on an
assessment of the importance of the expression in fostering the values underlying
section 2(b). Both Keegstra and Butler indicate the Supreme Court’s willingness to
uphold restrictions on freedom of expression in circumstances where the expression
lies far from the core of section 2(b) and causes or threatens significant social harm.

McLachlin J., also, held that section 319(2) failed the minimal-impairment test since non-
criminal remedies –
such as human rights legislation – were available to combat hate propaganda
in a more appropriate and effective fashion than criminal provisions. Given that violence is properly
within the domain of the criminal law, this argument is less compelling in the case of hate-crime pro-
visions.

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M. SHAFFER – Is BILL C-41 TOUGH ENOUGH?

iii. The Canadian Version of the Overbreadth Argument

The argument that hate-crime provisions violate section 2(b) of the Charter by
allowing into evidence the accused’s non-violent statements is based on the effects
of the provisions, rather than their purpose. The purpose of hate-crime provisions is
not to infringe on non-violent expressions of group hatred. Nonetheless, hate-crime
provisions could have this effect by chilling non-violent speech if people avoid
commenting on controversial issues for fear of being charged, in the future, with a
hate crime.

Since R. v. Big M Drug Mart Ltd.,”t 5 it has been clear that legislation with a
valid purpose may be found to violate the Charter if it has the effect of infringing
Charter rights. However, as the Court indicated in R. v. Edwards Books and Art
Ltd.,”‘ for an effects-based challenge to succeed, the impugned law must have more
than a trivial or insubstantial effect but must reasonably or actually threaten” the
right in question. Thus, not every law that potentially affects freedom of expression
will violate section 2(b).

There are two reasons why it will be difficult to establish that hate-crime pro-
visions have the effect of violating free speech. First, the chill which may poten-
tially arise from the use of the accused’s speech as evidence in the prosecution of
hate crime is, as the United States Supreme Court noted in Mitchell, highly specu-
lative. To consider the chill as a serious threat one would have to assume that peo-
ple wishing to relate racist jokes or to explore ethnic differences through scientific
or artistic inquiry would refrain from doing so, contemplating that they may at
some later date attack, maim, or even kill a member of an identifiable group. This
scenario is highly unrealistic. Further, not all of the accused’s prior statements
would be admissible since statements introduced at trial must comply with the rules
of evidence. For example, racist jokes told by an accused are not likely to be highly
probative of the issue of whether he or she committed a violent act to express racial
hatred, unless they are accompanied by additional evidence that the accused har-
boured racist views.”‘ Thus, it is not at all clear that hate-crime provisions would
“reasonably or actually” threaten freedom of expression.

Second, as the United States Supreme Court noted in Mitchell, use of the ac-
cused’s prior statements in the case against him or her is not unique to the prosecution
of hate crime. The rules of evidence allow the use of an accused person’s statements
in criminal trials to prove various aspects of the Crown’s case, including motive and
mens rea. For example, in a murder trial the accused’s declarations of animosity to-
wards the deceased could be admissible to demonstrate motive. Use of these com-
ments could be said to have a chilling effect on free expression because people might

… [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321.
,16 (1986] 2 S.C.R. 713,35 D.L.R. (4th) 1.
117 Ibid.
. See infra notes 149ff and accompanying text.

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refrain from expressing their resentment of particular individuals, knowing that these
statements could be used against them in the future. More to the point, statements
evincing bigoted attitudes on the part of the defendant are used in human rights com-
plaints to establish discrimination. These statements are used in much the same way
as in hate-crime prosecutions. To suggest that use of the accused’s prior speech vio-
lates free expression is to cast doubt on the use of speech in all of these contexts. It is
difficult to imagine courts accepting an argument that evidentiary use of speech –
even if it could be said to have a chilling effect-violates section 2(b).

Even if courts were to accept the argument that hate-crime provisions chill free
expression, this violation would be justified with little difficulty under section 1.
The analysis here would, to a large degree, mirror that conducted for the claim that
the purpose of hate-crime legislation violates free expression. However, because the
analysis would focus on the effect of hate-crime provisions on non-violent expres-
sion, some differences would arise under the minimal impairment and balancing
aspects of the Oakes test. The courts would have to determine whether hate-crime
legislation impairs non-violent expression as little as possible, and if so, whether
the effects on non-violent expression are nonetheless so grievous that they out-
weigh the benefits of the provision. Hate-crime legislation should clear the first of
these hurdles since, given the distinct harms posed by hate-motivated violence,
there is no less restrictive way of attaining the objective underlying hate-crime
provisions. The approach proposed in Bill C-41 is no less restrictive, since it gives
rise to the same “chill” arguments as do U.S.-style hate-crime provisions.”‘ Finally,
having established that it is highly unrealistic that hate-crime provisions would
create any substantial chill on free expression, the requirement of balancing the ef-
fects of the legislation against its objective would not pose an obstacle to the valid-
ity of the provisions.

2.

Equal Protection

Hate-crime provisions may be seen to violate the equal-protection clause of the
Fourteenth Amendment in two ways. First, they allegedly treat offenders differently
based on their beliefs because they permit people who commit hate crimes to be
punished more harshly. Thus, hate-crime provisions are said to discriminate against
bigoted offenders. Second, the statutes are said to discriminate among classes of
victims because they confer greater protection to persons harmed by reason of race,
religion, sexual orientation, or disability than they do to persons harmed for other
reasons. Although the Oregon Court of Appeal accepted the second argument,”‘
most courts have rejected both equal-protection claims outright.

” Whether the accused is subject to an enhanced penalty, as under the U.S.-style, hate-crime pro-
visions or would simply receive a sentence towards the higher end of the existing sentencing range, as
in Bill C-41, the same potential chill on free expression would arise. Simply knowing that his or her
speech could be used in evidence as proof of an aggravating factor under Bill C-41 could motivate the
accused to refrain from engaging in bigoted speech.

‘”‘ See State v. Beebe, 680 P.2d 11 (Or. Ct.App. 1984), app. den’d 683 P.2d 1372 (1984).

1995]

M. SHAFFER – Is BiLL C-41 TOUGH ENOUGH?

While similar challenges could be made under section 15 of the Charter, Ca-
nadian courts are also unlikely to perceive such arguments as serious obstacles to
the validity of hate-crime legislation. To trigger section 15, an applicant must es-
tablish that the legislation in question discriminates on one of the grounds expressly
enumerated in section 15 or on analogous grounds.’2′ According to the test estab-
lished by the Supreme Court in Andrews v. Law Society of British Columbia,” dis-
crimination will be made out when the law places burdens on or denies benefits to
members of a particular group.'” Any justification or consideration of the reason-
ableness of the distinction would occur under section 1.’

The first equality argument, based on the beliefs of the offender, fails to sur-
mount the first hurdle in section 15. The potentially harsher punishment imposed
as compared with the punishment imposed on
on perpetrators of hate crimes –
people whose violent crimes are not motivated by group hatred –
arises from the
offender’s expression of bigoted beliefs through violence. This is clearly not a dis-
tinction based on race, national or ethnic origin, colour, religion, sex, age, mental or
physical disability, or any analogous ground.

The claim based on the victim’s identity is slightly more complicated. Hate-
crime statutes distinguish between people harmed by reason of such characteristics
as race, religion, or sexual orientation – grounds which are analogous to or enu-
merated in section 15 – and those harmed for other reasons. They do not, however,
on their face, confer greater protection on any particular group since they are
drafted in neutral terms. Since all victims of hate-motivated violence receive the
same degree of protection, hate-crime statutes do not explicitly give certain groups
greater protection than others and would not violate section 15 on this basis.

It would, however, be possible to bring a challenge using disparate impact
analysis. Arguably, hate-crime provisions have the effect of conferring greater pro-
tection on minority than on majority victims because minorities are more likely to
be victims of hate crimes. By treating violence against members of the majority less
severely, hate-crime provisions could be said to deny majority victims equal pro-
tection and equal benefit of the law and, consequently, could be said to violate sec-
tion 15.'”

12 Section 15 prohibits discrimination based on “race, national or ethnic origin, colour, religion, sex,

age or mental or physical disability.”

‘ [1989] 1 S.C.R. 143,56 D.L.R. (4th) 1 [hereinafterAndrews cited to S.C.R.].
‘ See ibid at 174-75, McIntyre J.
‘ See ibid at 176. The courts have not, however, followed this analysis. See infra note 126.
‘5This argument depends on the claim that there is no real difference between hate-motivated vio-
lence and other types of violence. If there is no meaningful distinction between the two, minority Ca-
nadians could be said to be receiving greater protection than majority Canadians because their assail-
ants would face stiffer sentences.

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[Vol. 41

this result by holding

While Canadian courts would almost certainly reject this argument, it is unclear
from the case law whether they would do so under section 15 or under section 1.2
One possibility is that courts would find no discrimination and, thus, no violation of
section 15. They could reach
the
“beneficiaries” of hate-crime legislation will more often be members of minority
groups, the legislation neither imposes a burden on majority group members nor
denies a benefit to them. All persons, regardless of their identity, are protected by
hate-crime legislation; that the protection is invoked more frequently by members
of minority groups is simply a function of who is victimized by this form of vio-
lence and demonstrates why these provisions are necessary. Alternatively, courts
could accept that hate-crime provisions have a disparate impact on majority group
Canadians and demand that this be justified under section 1.

that, although

and, in some instances, should –

Whether they conduct their analysis under section 15 or under section 1, the
courts would undoubtedly find any disparate treatment justified on the basis that
governments are entitled to –
create criminal of-
fences to address the harms more likely to be encountered by some groups in soci-
ety. For example, although women and girls are more likely to be victims of sexual
assault than males, courts are unlikely to strike down the sexual assault provisions
on the basis that they provide greater protection to females. So long as a rational
basis can be demonstrated for treating hate-motivated crime more severely than
crimes committed for other reasons, the Charter guarantee of equality should not
preclude the creation of a specific offence proscribing a type of violence that is
more likely to confront gays, lesbians, and racial and religious minorities. In fact, as
I have discussed earlier, hate-crime provisions can be seen to promote equal pro-
tection of the law, by ensuring that the criminal law responds fairly to the different
harms faced by Canada’s minority groups.'”7

1

26 The courts have not yet established a consistent framework for section 15. For example, Andrews
suggests that discrimination will be found any time a distinction has the effect of imposing burdens or
granting benefits to some groups and not to others. Once discrimination is demonstrated, the justifi-
cation for the distinction is to be assessed under section 1. In Weatherall v. Canada (A.G.), [1993] 2
S.C.R. 872, 105 D.L.RI
(4th) 210, R. v. Swain, [1991] 1 S.C.R. 933, 5 C.R. (4th) 253, and R. v. Hess,
[1990] 2 S.C.R. 906, 59 C.C.C. (3d) 161 [hereinafter Hess cited to S.C.R.], however, the Court did
not appear to follow this analysis, finding in these cases that distinctions did not violate section 15.
For example, in Hess, Wilson J. for the majority held that the statutory rape provision of the Criminal
Code (see supra note 54 at s. 146(1), as am. by S.C. 1972, c. 13, s. 70), which made it an offence for
men to have sexual intercourse with female persons under the age of 14, did not violate section 15.
Although she acknowledged that the provision placed a burden on male offenders that it did not place
on female offenders and granted protection to young females that it denied to young males, Wilson J.
found it did not discriminate because the prohibited act could “as a matter of biological fact” only be
committed by a male against a female (Hess, ibid. at 930). This analysis amounts to considering the
justification for a distinction based on sex under section 15. See also the Court’s approach to section
15 in Egan v. Canada (A.G.), [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609.

,27 See text accompanying notes 57-60, above.

19951

M. SHAFFER – Is BILL C-41 TOUGH ENOUGH?

3.

Vagueness

The final constitutional challenge that has been raised in the United States is
that hate-crime provisions are unconstitutionally vague and, thus, violate the Four-
teenth Amendment. While the specific arguments depend upon the wording of the
various statutes, opponents point to four areas which are allegedly vague. First,
critics claim that the term “race” is vague. Second, they argue that hate-crime stat-
utes fail to specify with sufficient precision the degree to which an offender must be
motivated by group hatred. The language commonly employed requires an accused
to act “by reason of”‘
the race of an individual or group or to “intentionally select”
the victim “because of”29 that person’s race. This language could, opponents argue,
cover anything from situations in which race is the sole reason for acting to those
where it is the predominant reason, a substantial reason, or even a barely contribut-
ing reason. Third, opponents claim that provisions using the “by reason of’ lan-
guage fail to set out a mens rea requirement.

The fourth vagueness argument requires a more detailed explanation. The A.D.L.
model stipulates that the accused must act “by reason of’ the race of “another per-
son”. Some critics contend that this language fails to specify whether the accused
must act to express hatred of the group to which the victim is perceived to belong, or
whether this wording could also incorporate situations in which victims are chosen
simply because of their association with members of the reviled group. Would, for
example, hate-crime provisions apply to a case in which a white man is attacked by
white supremacists because of his relationship with a woman of colour? This attack
would occur “by reason of’ the race of another person even though that other person
was not the immediate victim. The concern with the imprecision of the phrase “by
reason of’ can be taken a step further. If two white men have an argument about
members of a racial minority which culminates in one assaulting the other, would the
assault have occurred “by reason of’ race, thus bringing it within the provision? Does
the phrase “by reason of the race of another person” limit the offence to persons who
choose their victims to demonstrate group hatred, or is the language so broad as to
include violence arising from disagreements over racial or religious questions that
may be said to occur “by reason of’ race?

Although courts have invalidated hate-crime statutes on vagueness grounds,”
opponents of such legislation concede that the vagueness concerns are not insur-
mountable since they may be remedied through better drafting.’3′ Furthermore, in
light of the stringent test articulated by the Supreme Court in N.S. Pharmaceutical,
the vagueness arguments would not render hate-crime legislation unconstitutional
in Canada. According to that case, vagueness can be raised under section 7: vague
laws violate the principles of fundamental justice by failing to give fair notice of

See text accompanying note 27, above.
29 See Wisconsin Statute, supra note 16.
, o See R5ant I, supra note 66.
..’ See Gelman, supra note 19 at 357.

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the scope of prohibited conduct and by failing to limit judicial discretion.’2 Legis-
lation will not be vague, however, merely because it is capable of supporting a
range of judicial interpretations. A statute will violate section 7 only if it “so lacks
in precision as not to give sufficient guidance for legal debate.”” Mr. Justice
Gonthier described this test in the following way:

A vague provision does not provide an adequate basis for legal debate, that is
for reaching a conclusion as to its meaning by reasoned analysis applying legal
criteria. It does not sufficiently delineate any area of risk, and thus can provide
neither fair notice to the citizen nor a limitation of enforcement discretion. Such
a provision is not intelligible, to use the terminology of previous decisions of
this Court, and therefore it fails to give sufficient indications that could fuel a
legal debate. It offers no grasp to the judiciary. This is an exacting standard,
going beyond semantics.’

None of the vagueness claims would meet this “exacting standard”. “Race”
would not be vague, because it is a term used intelligibly in many legal contexts,
including human rights legislation and the Charter. Similarly, the degree to which
race must have factored into the accused’s motivation is susceptible of resolution
through judicial interpretation. For example, the two members of the Wisconsin
Supreme Court who considered this argument in Mitchell concluded that on its
“ordinary common sense meaning” the phrase “because of” must be interpreted to
mean that the victim’s status was a substantial factor in the perpetrator’s decision.'”
Of course, rather than leaving this issue to judicial interpretation, Parliament could
explicitly stipulate a requisite degree of motivation in the statute itself. In fact,
while its provision was being considered by the courts, Wisconsin amended its
statute to provide that it applied when the offender was motivated “in whole or in
part” by the victim’s status. “‘

The mens rea concern is also easily answered. The general rule for construing
criminal law provisions which fail to specify mens rea is that they require reckless-
ness. However, because it is difficult to conceive how a person can recklessly
choose to attack another by reason of race, courts would be likely to interpret a
hate-crime provision as requiring intent. Again, Parliament could circumvent any
uncertainty simply by stipulating that the selection of the victim be intentional, as
do many of the provisions in the United States.”‘

‘ Vagueness can also be raised under section 1 in determining whether a limitation is “prescribed

by law”.

“‘ N.S. Pharmaceutical, supra note 70 at 643.
13 Ibd at 639-40.
” These members dissented because they disagreed with the majority’s view that the provision
violated the First Amendment. The majority did not consider the vagueness issue because their
analysis under the Fast Amendment was sufficient to strike down the statute.
136 On May 13, 1992, the Wisconsin legislature amended its hate-crime provision to provide that it
would apply where the accused selected his or her victim “in whole or in part because of the actor’s
belief regarding” the victim’s status (see Mitchell (Wis. S.C.), supra note 66 at note 12, p. 813).

,31 See e.g.: Wisconsin Statute, supra note 16; Oregon Statute, supra note 20.

1995]

M. SHAFFER – IS BILL C-41 TOUGH ENOUGH?

The final issue concerning the relationship between the identity of the victim
and the phrase “by reason of’ involves a policy decision regarding the scope of
hate-crime provisions as well as questions of drafting. As a matter of policy, Par-
liament would have to decide whether to limit the provisions to inter-group vio-
lence or to extend their application to cases in which members of one group attack
other members of their own group because of the latters’ sympathy for another
group. For example, would an attack by heterosexual men on other heterosexual
men who supported gay rights fall within the provision’s ambit? In many people’s
minds, hate-inspired violence between members of different groups is the paradigm
which hate-crime provisions are meant to counter. There are, however, strong ar-
guments for including hate-inspired, intra-group violence within hate-crime legis-
lation. Such violence has many of the same effects as hate-motivated, inter-group
violence. Not only does it convey a message of group hatred, but it also threatens
people who associate with members of the despised group by causing them to fear
that they, too, will become targets of violence. Thus, because it aims to prevent
members of different groups from mixing, hate-based intra-group violence is de-
structive to the goals of pluralism and social harmony.

Whatever the resolution of the policy issue, the question remains whether the
terms “by reason of’ or “because of’ are sufficient to indicate that group hatred
must have motivated the accused’s actions. To avoid the possibility that disagree-
ments between members of one group about another racial or religious group might
fall within the terms of the statute, Parliament might wish to specify that the of-
fence is concerned with violent expressions of group hatred. This could be ac-
complished by defining the offence as intentionally selecting the victim to express
hatred on one of the prohibited grounds. Using more precise language could avoid
any concern with vagueness under section 71 8 Although it would be wise for Par-
liament to draft a hate-crime provision in this way, it is also possible that courts
would reach the same interpretation of the provision’s scope without the clarifying
statutory language.

4.

Hate Crime and Section 7 of the Charter – Can Parliament Pun-
ish Acts Inspired by Certain Motives More Harshly Than Others?

In Canada, hate-crime provisions may face an additional constitutional hurdle
to those they have confronted in the United States. This challenge arises from the
spectre of Parliament passing legislation providing that violence brought about by
certain motivations should be treated much more harshly than violence resulting
from other motivations. For example, Parliament might seek to pass a law provid-

“‘ It would also address any possible overbreadth concerns that might arise under the section 1
analysis for a violation of section 2(b). These concerns would focus on whether hate-crime provisions
were narrowly tailored to capture only those offenders using violence to express their hatred of a par-
ticular group, or whether they could encompass other violence as well (see text accompanying notes
109-114ff).

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[Vol. 41

ing that politically-motivated assaults or assaults occurring in the course of labour
disputes would be punishable by life imprisonment. The same assault performed in
another context might, however, carry a maximum penalty of five years imprison-
ment.’ 9 Increasing the maximum penalty for violence triggered by certain motiva-
tions could be seen to violate the principles of fundamental justice if there is no ba-
sis to justify the increase, or if the increase is disproportionate to the severity of the
harm caused. On this argument, hate-crime provisions could be challenged on the
grounds that there are no compelling reasons to support treating offences inspired
by group hatred more severely than others, or that the increased maximum penalty
amounts to punishment that is disproportionate to the severity of the crime.'”

Since this argument focuses, in part, on the ability of Parliament to single-out
certain kinds of motivations for greater punishment, it bears some similarity to the
thought-crime argument in the United States. In my view, a formulation of these
concerns as a violation of section 7 of the Charter has a better chance of success
than an argument brought under freedom of expression because of the exclusion of
violent forms of expression from protection under section 2(b). Nonetheless, these
section 7 arguments would be unlikely to succeed for two reasons. First, as set out
earlier in this paper,” there are compelling policy reasons justifying a penalty in-
crease. Hate crime can be seen to threaten. the multicultural fabric of Canadian so-
ciety in a way that non-hate motivated crimes do not. Further, the penalty increase
available in hate-motivated offences does not mean that all cases of hate-motivated
violence will necessarily be treated more harshly than other violent acts. Increasing
the maximum penalty simply allows judges more latitude in passing sentence than
they would have for offences that are not inspired by hatred. Thus, hate-motivated
violence will not always be treated more severely than even the most heinous
“ordinary” offence.

Second, the argument depends in part on the magnitude of the sentence in-
crease Parliament seeks to impose. A hate-crime provision might be held unconsti-
tutional if, for example, Parliament were to provide that any act of hate-motivated
violence, no matter how brutal, could be punished by life imprisonment. Assuming,
however, that Parliament proposes a measured range of sentence increases for vio-
lence motivated by hatred, there is no reason that hate-crime provisions would vio-
late section 7.

Finally, a slight variation of this argument could also be made. On this version,
hate-crime provisions could be seen to violate the principles of fundamental justice

,’ This is the existing maximum sentence for simple assaults tried by indictment (Criminal Code,

supra note 11 at s. 266).

‘4, The notion that the sentence reflect the severity of the crime is well established within Canadian

law. Bill C-41 states this explicitly:

718. A sentence must be proportionate to the gravity of the offence and the degree of

responsibility of the offender (Bill C-41, supra note 13 at cl. 718.1).

14 See text accompanying notes 48ff, above.

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M. SHAFFER – IS BILL C-41 TOUGH ENOUGH?

by making an accused’s motive, which is normally not part of a criminal offence,
an element of the offence. Courts are unlikely to accept this argument. So long as
Parliament provides adequate justifications for motive constituting an element of
the offence, there is nothing in the principles of fundamental justice that would
preclude Parliament from passing legislation that takes motive into account. On the
contrary, harsher punishment for crimes which pose greater harm to the individual
(and to society generally) accords with the basic tenets of the legal system, the
norms represented by the principles of fundamental justice. If the accused’s moti-
vation is a way of identifying these more harmful crimes, the principles of funda-
mental justice should pose no impediment to making motive an element of an of-
fence.”‘

B. Effectiveness Concerns

The second set of concerns regarding hate-crime provisions relates to their ef-
fectiveness. Although such provisions have existed in various states for some time,
there have been few charges laid and even fewer successful prosecutions.”‘ Further,
given the level of racial animosity and racial violence that persists throughout the
United States, it is hard to make a compelling case that hate-crime provisions have
had much of an impact in combatting violent expressions of group hatred, let alone
in reducing prejudice and racism in that country. Examining these problems of ef-
fectiveness is important to determine the degree to which they are peculiar to the
United States or are inherent in hate-crime provisions, as well as the extent to
which they would be circumvented by adopting the Bill C-41 approach.

’41 Some commentators in the United States also question the notion that there is always a fim dis-
tinction between motive and mental states, such as intent or purpose, which often constitute the mens
rea of an offence. For example, in Joshua H, the California Court of Appeal dismissed the idea of a
firm distinction in the following way:

“Intent’ and “motive” as used by the court to distinguish between the “what” and
“why” of the crime are relative rather than absolute concepts, the definition of which
turns simply on where one chooses as a starting point. [The] example of the crime of
burglary … illustrates the point. Breaking and entering could be the “what” of the crime
and the perpetrator’s purpose of taking property could be the “why.” Under that con-
struct, the burglar’s “motive” is relevant to the crime charged. Alternatively, breaking
and entering for the purpose of taking property could be defined as the “what’ and the
desire to obtain money to pay debts the “why.” In that case, the burglar’s “motive” is ir-
relevant. There is no reason why one construct is a priori more correct than the other
(Joshua H, supra note 86 at 301-302).

See also Note, “Combatting Racial Violence: A Legislative Proposal” (1988) 101 Harv. L. Rev.
1270 [hereinafter “Combatting Racial Violence”].
” See: T.K. Hern~ndez, Note, “Bias Crimes: Unconscious Racism in the Prosecution of ‘Racially
(1990) 99 Yale L.J 845; “Combatting Racial Violence”, ibid.; M.L. Fleis-
Motivated Violence’
chauer, ‘”eeth for a Paper Tiger A Proposal to Add Enforceability to Florida’s Hate Crimes Act’
(1990) 17 Fla. St. U. L. Rev. 697. This situation may be changing somewhat since the decision in
Mitchell.

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The paucity of convictions under hate-crime statutes may be due to a combina-
tion of several factors. It may, in part, result from the reluctance of prosecutors to
lay charges under legislation of questionable constitutional validity.'” The volatility
of race trials in the United States may also be a factor. Because highly visible
prosecutions risk bringing strained racial tensions to the boiling point, prosecutors
may either consciously or unconsciously attempt to avoid making race central to
the trial. Overt racism by key players in the justice system may also account for the
low prosecution and conviction rates. Racist police officers, for example, might not
investigate hate-crime vigorously and might even resist laying a charge under a
hate-crime provision. Discussion of these considerations is conspicuously absent
from the literature in the United States, which has, instead, focused on two expla-
nations of the provisions’ poor track record: (1) the need to prove racial motivation
beyond a reasonable doubt; and (2) the operation of unconscious racism in the
prosecution of hate crime.

1.

Problems of Proof: Proof Beyond a Reasonable Doubt and the Use
of Similar Fact Evidence

Since hate-crime provisions make biased motivation an element of the offence,
the prosecution is required to prove racial motivation beyond a reasonable doubt.
Commentators have argued that this burden will be next to impossible to meet and
consequently that it will yield few convictions.” The difficulty in obtaining con-
victions, it is contended, will dissuade prosecutors from proceeding with hate-crime
charges, prosecuting the accused, instead, with the violent offence underlying the
hate-crime charge. Requiring the prosecution to prove motive will, therefore, make
hate-crime provisions unenforceable and, thereby, undermine the objective of the
provisions.

Commentators have offered two principal reasons as to why motive may be
difficult to prove beyond a reasonable doubt. First, they argue that motive differs
from other mental states that figure in the criminal process because it lies more
deeply within the accused’s sole knowledge and, thus, is not susceptible to standard
techniques of proof. For example, in determining whether the accused committed a
crime requiring intention, the trier of fact may be assisted by the inference that a
person normally intends the natural and probable consequences of his or her ac-
tions. While the triers of fact would still have to decide, on the evidence, whether
the accused did act intentionally,” the availability of a simple inference would as-

‘” Although no statistical analysis has yet been conducted, anecdotal evidence from those working
in the field suggests that hate-crime prosecutions have increased since the decision in Mitchell
(Telephone conversation with Steven Freeman, Director of the Legal Department of the A.D.L. (19
May 1995)).

‘” See generally: J. Morsch, “The Problem of Motive in Hate Crimes: The Argument Against Pre-
sumptions of Racial Motivation” (1992) 82 J. Crim. L. & Criminology 659; Fleischauer, supra note
143; “Combatting Racial Violence”, supra note 142; J. Mason & J. Thompson, “Racial and Religious
Harassment: Idaho’s Response to a Growing Problem” (1985) 21 Idaho L. Rev. 85.

‘” Intention is a subjective mental state defined as knowledge that consequences are substantially

1995]

M. SHAFFER – IS BILL C-41 TOUGH ENOUGH?

sist them in reaching a conclusion. In contrast, it is more difficult to infer an ac-
cused’s motive from the actions themselves. For example, a jury might easily infer
that an accused who, without provocation, assaulted a stranger standing alone at a
bus stop acted intentionally. In the absence of other evidence, however, the ac-
cused’s motive is less clear. The accused could have been motivated by a fear of
strangers, by homophobia, by racism, or by some combination of the three. Without
considerably more evidence, it will be difficult to prove beyond a reasonable doubt
which of these factors motivated the accused. Thus, the argument goes, motive is
much more elusive than other mental states, and it may be virtually incapable of
being proved.

Second, commentators argue that the evidence necessary to prove a biased mo-
tive may often be inadmissible.'” Unless the accused’s motive is clear from state-
ments uttered during the commission of the crime or from demonstrative acts, such
as painting swastikas, proof of motive will require evidence showing that the ac-
cused has made bigoted remarks in the past, belongs to racist organizations, or has
been involved in prior incidents of hate-motivated violence. The problem with this
evidence is that it relates to the accused’s character and, thus, raises problems of
admissibility. As a general rule, the prosecution cannot seek to admit evidence of
the accused’s bad character unless the accused has first placed his or her character
in issue.” Character evidence is, prima facie, inadmissible because it invites the
trier of fact to convict on the ground that the accused is a bad person, not because
they are convinced that the accused committed the offence.

The rules of evidence in both the United States and Canada permit some ex-
ceptions to this general exclusionary rule. Under the similar fact evidence rule,”9
evidence of the accused’s bad character or disposition can be tendered by the
prosecution if it is relevant to an issue in the case beyond showing that the accused
is the sort of person likely to commit a criminal offence.” On the traditional view
of the rule, character evidence establishing identity, motive, intent, the presence of a
system or plan, or evidence tending to rebut the defences of accident, mistake, or
innocent association would be admissible since it would not be used merely to infer
guilt from the accused’s past misconduct.’ Although this would appear to allow the

certain to follow from one’s actions. To show that an accused acted intentionally, the prosecution
would have to establish that the accused had this state of awareness, not simply that a reasonable per-
son would have foreseen the likelihood of the consequences materializing.

’47Morsch, supra note 145 at 669-70.

For a discussion of character evidence in the United States, see E. W. Cleary, ed., McCormick on
Evidence, 3rd ed. (St. Paul, Minn.: West, 1984). For a Canadian discussion, see J. Sopinka, A.W. Bry-
ant & S.N. Lederman, The Law of Evidence in Canada (Toronto: Butterworths, 1992) at c. 10.

“‘ Numerous commentators have argued that the similar fact rule is really a misnomer (see e.g.

Sopinka, Bryant & Lederman, ibid. at 478-79).

“0 Makin v. New South Wales (A.G.), [1891-1894] All E.R. Rep. 24 (P.C.).
..’ See: Cleary, supra note 148; Sopinka, Bryant & Lederman, supra note 148. In the recent deci-
sion in R. v. B.(C.R.), [1990] 1 S.C.R. 717,55 C.C.C. (3d) 1 [hereinafter B.(C.R.)], the Supreme Court
has broadened the similar fact evidence rule (see infra notes 154ff and accompanying text).

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introduction of character evidence tending to show the accused’s motive, according
to one U.S. commentator, courts have been extremely wary of admitting evidence
of the accused’s bigoted character and have done so “only where the evidence in-
volves statements made at the time of alleged criminal activity which reasonably
explain the defendant’s behavior”.”2

Neither argument regarding the difficulty of proving motive provides a persua-
sive explanation for the scarcity of convictions under hate-crime statutes. The first
argument is convincing only to the extent that proving motive is significantly dif-
ferent from proving the other mental states that routinely appear in criminal trials.
While motive may sometimes be more difficult to establish than intention or reck-
lessness, the method of proof remains the same regardless of the state of mind at is-
sue. In each case, the trier of fact must infer the accused’s subjective state of mind
from the actions the accused is alleged to have performed as well as the statements
the accused is alleged to have made. Further, although the simple inference used to
establish intent is not available to prove motive, neither is it available to prove pur-
pose, which is the mental state at issue in a number of crimes. The accused’s pur-
pose in acting is similar to motive since it is more deeply embedded within the ac-
cused’s knowledge than intent, yet purpose is clearly provable.”‘

The motive argument also assumes that in the vast majority of cases of hate-
inspired violence there will be insufficient evidence to prove motive beyond a rea-
sonable doubt. This, however, is unlikely. While there will certainly be hard cases
where the evidence is ambiguous, there will also be many cases in which there will
be ample evidence of the accused’s biased motive. For example, if a group of
youths belonging to a white-supremacist organization assault a person of colour
waiting at a bus stop, it is not difficult to infer that the assault was motivated by ra-
cial hatred. Further, since hate crimes are seldom perpetrated in silence, evidence of
bigoted remarks uttered in the course of the violence will frequently be available.
By using statements made at the time of the offence, prior racist statements, and
evidence of membership in racist groups –
evidence which may well be available

2’ Morsch, supra note 145 at 670. Morsch cites as an example United States v. Ebens, 800 F.2d
1422 (6th Cir. 1986) in which the court held that evidence of racial slurs against African-Americans
made by the accused was not admissible where the victim was Asian.

“‘ Although the difficulties in proving motive do not appear to be nearly as arduous as commenta-
tors have claimed, it is worth briefly considering the proposals that have been advanced to circumvent
them. Some commentators have argued for a presumption of racial motivation in all cases of inter-
group violence such that accused persons who attack a member of another group would have the onus
of establishing that their conduct was not racially motivated (see: Fleischauer, supra note 143;
“Combatting Racial Violence”, supra note 142). Other commentators go further, arguing that this pre-
sumption should only apply where the victim is a member of a racial minority and the accused is
white (see e.g. “Combatting Racial Violence”, ibiI). While these measures would undoubtedly in-
crease the number of convictions for inter-group violence, they conflict with the presumption of inno-
cence and would not likely withstand challenge under section 11(d) of the Charter. The proposal
limiting the presumption to white persons who attack non-white victims might also conflict with sec-
tion 15 of the Charter.

1995]

M. SHAFFER – IS BILL C-41 TOUGH ENOUGH?

in many cases of racist violence –
tive beyond a reasonable doubt.

the prosecution should be able to establish mo-

The need to rely on character evidence is also not likely to constitute a fatal im-
pediment to hate-crime prosecutions in Canada where, as in the United States,
character evidence is admissible to prove the accused’s motive or intent so long as
its probative value outweighs its prejudicial effect.’ Although the probative value
would have to be balanced with the prejudice in each case, evidence establishing
the accused’s membership in – or support of – bigoted groups, past racist activi-
ties, or a history of making bigoted statements should generally be admissible; evi-
dence of this sort is highly probative of the accused’s motive when considered in
conjunction with the circumstances of the violent act. In contrast, evidence that an
accused had a penchant for racist jokes would not in itself be admissible, because
racist jokes are regrettably all too common to be highly probative of bias. Similarly,
bigoted statements uttered years before the offence might be inadmissible if there is
nothing to suggest continued animosity. ‘

Finally, it is worth considering whether either of these alleged impediments to
proving motive in a hate-crime provision would be alleviated by Bill C-41. In my
view, Bill C-41 does not appear to possess any significant advantage over the crea-
tion of an independent hate crime. Since the standard of proof at sentencing is the
same as during the trial, under Bill C-41 the Crown would still have to prove biased
motive beyond a reasonable doubt before it could be considered an aggravating
factor in sentencing.”‘ The Crown may derive some benefit under the Bill from the
fact that rules of evidence are relaxed at sentencing, permitting the introduction of
evidence that would be inadmissible at trial. It is unlikely however, that this benefit
would be significant enough to outweigh the advantages of enacting a separate
hate-crime offence.

2.

Unconscious Racism or Bigotry’5″

Commentators have also posited that unconscious racism on the part of prose-
cutors prevents them from effectively prosecuting hate crimes and even of perceiv-
ing hate crimes when they occur.'” Unconscious racism refers to racist attitudes and

5, In the recent decision in B.(C.R.) the majority of the Supreme Court of Canada extended the
similar fact rule, holding that similar fact evidence is admissible when it is highly probative and out-
weighs any prejudicial effect, whether or not it fell within one of the traditional categories (see.
B.(C.R.), supra note 151).

“‘ See R. v. Barbour, [1938] S.C.R. 465, [1939] 1 D.L.R. 65.
” See R v. Gardiner, [1982] 2 S.C.R. 386, 140 D.L.R. (3d) 612. This is also clear from Bill C-41
itself. It provides that, “[w]here there is a dispute with respect .to any fact that is relevant to the de-
termination of a sentence … the prosecutor must establish, by proof beyond a reasonable doubt, the
existence of any aggravating fact …” (Bill C-41, supra note 13 at cl. 724(3)(e) [emphasis added]).

” I use the term “racism! here because the U.S. literature I summarize focuses on racism. As I ex-

plain below, however, the phenomenon is not limited to racism but applies to other forms of bigotry.

“‘ See e.g. Hermndez, supra note 143.

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beliefs that are so deeply ingrained within a culture that, for the most part, they go
unrecognized.’59 Lawrence describes this phenomenon in the following way:

Americans share a common historical and cultural heritage in which racism has
played and still plays a dominant role. Because of this shared experience, we
also inevitably share many ideas, attitudes, and beliefs that attach significance
to an individual’s race and induce negative feelings and opinions about non-
whites. To the extent that this cultural belief system has influenced all of us, we
are all racists. At the same time, most of us are unaware of our racism. We do
not recognize the ways in which our cultural experience has influenced our be-
liefs about race or the occasions on which those beliefs affect our actions. In
other words, a large part of the behavior that produces racial discrimination is
influenced by unconscious racial motivation.”W

On this theory, even though most prosecutors are not overtly racist,'”‘ they (like the
rest of us) will approach their jobs with socially-condoned beliefs, which may im-
pair their ability to handle hate-motivated violence.

Unconscious racism may hinder prosecutors from acknowledging violence as
racially motivated by causing them to deny the existence of racism in all but the
most egregious cases. In other words, prosecutors may be willing to attribute vio-
lence to causes other than group hatred. Further, unconscious racism may affect the
vigour with which prosecutors approach cases in which the victim is a member of a
minority group. Hermindez, for example, cites evidence indicating that prosecutors
in the United States have been more willing to accept the “decisions of minority as-
sault victims to forego prosecution rather than those of white assault victims”.’ 2 She
also points to research on the death penalty which demonstrates that “prosecutors
are more rigorous in their investigation of cases involving white victims than they
are of cases involving Black victims.”‘”3 In the context of hate crimes, these ten-
dencies may lead prosecutors to accept plea bargains to lesser offences rather than
embark upon the onerous task of prosecuting the hate crime. Prosecutors may also
be willing to accept plea bargains if, because of unconscious racism, they believe
that the accused’s hateful motive will be difficult to prove.

… See C.R. Lawrence I, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious

Racism” (1987) 39 Stan. L. Rev. 317. Other writers refer to this phenomenon as cultural racism.

,0 Ibid at 322.
“6, This discussion of unconscious bigotry is not meant to ignore the extent to which overt racism,
sexism, and homophobia operate within the criminal-justice system, generally, and will hamper hate-
crimie statutes, specifically. Overtly racist police officers may intentionally investigate hate crimes less
thoroughly, giving a well-meaning prosecutor insufficient evidence on which to build a case. Simi-
larly, overtly racist judges and jurors may be less likely to convict of hate crime.

‘6Hermdndez, supra note 143 at 854, citing EW. Miller, Prosecution: The Decision to Charge a

Suspect with a Crime (Boston: Little, Brown, 1969) at 175-76.

16 Hemdndez, ibid. at 853, citing M.L. Radelet & G.L. Pierce, “Race and Prosecutorial Discretion
in Homicide Cases” (1985) 19 Law & Soc. Rev. 587. This research was introduced in McKlesky v.
Kemp, 481 U.S. 279, 107 S. Ct. 1756 (1987) in which the accused challenged the constitutional va-
lidity of the death penalty on the basis of racial discrimination.

1995]

M. SHAFFER – Is BILL C-41 TOUGH ENOUGH?

Although the literature in the United States focuses specifically on racism, the
unconscious acceptance and transmission of stereotypes also occurs in other forms
of bigotry, such as sexism and homophobia. The Supreme Court of Canada tacitly
recognized this in the context of gender when it held in R. v. Lavallee” that expert
evidence on the psychology of wife battering was admissible to explain how a
woman who killed her batterer could have been acting in self-defence. The Court
recognized that jurors might be prone to stereotypes about battered women –
in-
cluding the claim that battered women enjoy the violence inflicted upon them –
and that expert evidence was needed to offset these misconceptions. The stereo-
types may be said to be examples of unconscious sexism. In a similar vein, Cynthia
Petersen provides startling examples of deeply-ingrained hetero-sexism in her dis-
cussion of the widespread refusal to recognize homophobic animus in two well-
publicized incidents of gay bashing. In the first case, a gay activist was brutally
murdered by a gang of fifteen youths while sitting in a bus stopped outside a Mont-
real subway station. Even though the youths repeatedly shouted “faggot” during the
assault, the police refused to recognize the murder as an instance of anti-gay vio-
lence.'” The denial of hetero-sexism in the murder of Kenneth Zeller is even more
glaring. Zeller was murdered in a Toronto park by five male youths. Petersen re-
lates:

Trial testimony revealed that members of the gang had agreed to go to the park
to “beat up a fag.” Yet the media and the public at large denied that anti-gay
sentiment was involved in the crime. At the sentencing hearing, defence coun-
sel presented some 20 character witnesses who suggested explanations for the
murderous assault. These included the disinhibiting effect of alcohol and the
force of adolescent peer pressure, but did not include homophobia. The hockey
coach of three of the accused admitted that they would occasionally call oppos-
ing players “gay,” but only if the players were perceived to be “clumsy” ath-
letes. He added: “Never was the term spoken with any hostility.” A clinical
psychiatrist called to give expert testimony stated that the fact that one of the
boys yelled “you fucking faggot’ while he chased then beat Kenneth Zeller to
death “did not indicate hostility toward homosexuals.” The phrase, he opined,
was used only to please the group.'”

As these examples illustrate, the concern with unconscious bigotry should ap-
ply not only to prosecutors but also to the police who lay the initial charge, conduct
the investigation, and provide the prosecution with the evidence for trial. Uncon-
scious bigotry on the part of police officers may affect their decision to charge the
accused with a hate crime as well as the zeal with which they proceed with the in-
vestigation. Similarly, the unconscious bigotry which hinders police and prosecu-
tors from perceiving the hateful motive behind particular acts of violence may also
make judges and juries reluctant to convict an accused of a hate crime unless the
evidence is overwhelming.

[1990] 1 S.C.R. 852,55 C.C.C. (3d) 97.


‘”Petersen, supra note 26 at 246.
‘ Ibid

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It is hard to accept, as some commentators in the United States have suggested,
that prosecutors’ unconscious bigotry, alone, accounts for the low number of con-
victions under hate-crime statutes. It is, however, possible that unconscious bigotry
on the part of all of the main players in the criminal-justice system diminishes the
effectiveness of hate-crime legislation. This raises two questions: is the presence of
unconscious bigotry a reason to eschew the creation of U.S.-style hate-crime legis-
lation in favour of the Bill C-41 approach, and further, is it a reason for rejecting
any attempt to address the special nature of hate-motivated violence? The answer to
both of these questions is clearly no. For the same reasons that unconscious bigotry
may undermine the efficacy of U.S.-style hate-crime provisions, it would also im-
pede the effectiveness of Bill C-41. Furthermore, it can be no excuse to say that we
will not attempt to confront hate-motivated violence because deeply-ingrained
bigotry makes this process difficult.

The problem of unconscious bigotry underscores the limitations inherent in re-
lying solely upon the criminal law to solve social problems and points to the need
for education. Until we become more aware of the ways in which bigoted attitudes
shape our culture, the legal initiatives aimed at addressing hate crime will not be as
effective as they could be. While there is no easy or short-term solution to uncon-
scious bigotry, any lasting solution will require a greater social consciousness of the
ways in which bigoted beliefs shape our culture.

C. The Limitations of the Criminal Law: Political Concerns

The final set of objections to hate-crime provisions questions the wisdom of
using the criminal law to attempt to eradicate or reduce hate-motivated violence.
Commentators in the United States have raised two main concerns in this regard.
First, critics speculate that hate-crime charges will be laid more often against mem-
bers of minority groups who lash out against white victims than against white of-
fenders.” The prevalence of unconscious bigotry suggests this may, indeed, be a
problem. White police officers, who still constitute the majority in police forces
across the country, may be more willing to attribute a hateful motive to a minority
offender than to a white offender. Officers may, for example, be better able to iden-
tify with white victims and, therefore, might be more likely to perceive violence
against white victims as motivated by hate. However, to the extent that unconscious
bigotry may determine who is charged with hate crimes, it will also be a problem in
sentencing. Police officers may be more likely to furnish prosecutors with evidence
of a hateful motive when the offender is a member of a minority group, with the re-
sult that minorities will disproportionately face stiffer sentences. Thus, regardless
of whether Bill C-41 or U.S.-style hate-crime legislation is adopted, vigilance will
be required to ensure that the law is not being applied in a discriminatory manner.

Second, critics query whether hate-crime legislation can have any significant
effect in reducing hate crime or whether it is largely a symbolic gesture. Although a

‘6’ See e.g. Gellman, supra note 19.

1995]

M. SHAFFER – Is BILL C-41 TOUGH ENOUGH?

symbolic denunciation of hate crime may be valuable in itself by performing an
educative function, it is clearly an insufficient response to the problem of hate-
motivated violence. Passing a hate-crime provision may, however, end up being the
only response that is implemented because it allows people to believe they have
taken effective action and may lessen their inclination to do more. As Gellman
warns:

Notwithstanding

the self-affirming and educative value of such
[symbolic] gestures, however, there is the danger of their distracting us from
taking action that would be more than merely symbolic. A purely symbolic ac-
tion may stimulate us to take further, substantive action. But to the extent that…
[symbolic action] satisfies our desire to “do something,” we will be that much
less likely to contact our elected officials to press for more effective action. In
the same way, if enacting a largely ineffective ethnic intimidation statute allows
us to feel that we have taken steps to eliminate bigotry and bias-related crime
and thus reduces somewhat or even entirely our feeling of the urgency of doing
more, the enactment of that law ultimately slows the process of combatting
bigotry.'”

A more radical version of this criticism focuses on three reasons for which the
state may find criminal responses to hate crime appealing. First, enacting criminal
legislation is often a relatively easy way for government to claim that it is address-
ing a social problem. For example, it is much easier to pass a criminal law con-
demning hate-motivated violence than it is to devise and implement the multiple
strategies that a more comprehensive response would demand.

Second, criminal legislation may be comparatively inexpensive. Although creat-
ing additional criminal offences or increasing criminal penalties may increase the
costs associated with law enforcement and incarceration, the government may avoid
the cost of the development and implementation of educational programs aimed at
curbing bigotry. At times, use of the criminal law may be false economy since the
costs to the justice system may be greater than the costs of social programs which
might avoid engagement with the criminal process. For example, to the extent that
improving the economic conditions of lower-income Canadians might reduce the rate
of addiction to illegal drugs, paying for economic and social programs may be a more
cost-effective allocation of resources than paying for the personnel necessary to com-
bat the drug problem through the criminal-justice system.

Third, the process of enacting criminal provisions regarding hate crime attracts
considerable media attention, as do trials conducted under hate-crime provisions.
The publicity provides the government with free political mileage in a way that
less-visible educational strategies do not. This is particularly significant when, as
now, the electorate perceives crime to be a serious problem, and accordingly, “law
and order” responses are politically popular.”

IbiU at 389.
‘ See e.g.: A. Mitchell, “Views on Crime Distorted, Study Says Random Incidents Call&l Chief

246

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Finally, as numerous critical scholars have noted, the criminal justice system is
rarely an instrument of progressive social change.’0 Changes in the criminal law do
not tend to bring about fundamental social reform nor do they normally empower
those whom they seek to protect.’7’ According to this critique, the criminal law will
do little to dismantle the social power structure that gives rise to hate-motivated
violence. The symbolic effect of hate-crime provisions will be largely illusory.

including violence motivated by group hatred –

These concerns with the limitations of the criminal law are important. They are
useful reminders that the criminal law alone is not a sufficient response to social
problems, and that non-criminal avenues must be explored. These criticisms, how-
ever, do not offer much guidance on the question of which criminal-law remedy
should be adopted where a number of responses are available. Given that violence

is conduct that should be sub-
ject to criminal sanction, the appropriate question is not whether criminal remedies
should be pursued, but which of the criminal remedies can best contribute to the
solution of this problem. These concerns do not help us to determine whether the
bigoted motivation behind violent crimes should be a factor in sentencing, whether
it should be the subject of a specific criminal offence, or even further, whether it
should be considered at all in the criminal process.

Conclusion

My assessment of the arguments for and against U.S.-style hate-crime provi-
sions leads me to conclude that we should adopt similar legislation in Canada.
Hate-crime laws constitute a powerful statement that hate-motivated violence is un-
acceptable and will not be tolerated in a society committed to equality and multicul-
turalism. While Bill C-41 conveys a similar message, it fails to do so as forcefully.
Since there seem to be no compelling reasons for adopting the weaker denunciation
of hate crime over the stronger, I believe that we should embrace the United States
approach and permit penalty enhancement when violent crime is motivated by
group hatred.

I do have some hesitation, however, in making this recommendation. First,
hate-crime provisions, if enacted, might not be vigorously enforced. Such provi-
sions will only contribute to reducing hate crime to the extent that they are enforced

Factor” The [Toronto] Globe and Mail (31 December 1994) Al; D. Hawaleshka, “Torontonians Feel
It’s More Dangerous Than Five Years Ago” The [Toronto] Globe andMail (14 June 1994) A8.
“‘ See e.g.: L. Snider, “Feminism, Punishment and the Potential of Empowerment” (1994) 9 Cdn. J.
of L. & Soc. 75; M. Mandel, The Great Repression: Criminal Punishment in the Nineteen-Eighties
(Halifax: Garamond Press, 1991).

,’7 For a discussion of the inability of the criminal law to empower women abused by their intimate
partners, see D. Martin & J. Mosher, “The Promise That Was Not Kept: The Neo-Criminalization Re-
sponse to Wife Battering: Challenges Based on the Experiences of Immigrant Women” (1996) 9
C.J.W.L. [forthcoming].

1995]

M. SHAFFER – IS BILL C-41 TOUGH ENOUGH?

in a non-discriminatory manner, and that they yield convictions where warranted. If
they fail on either of these scores, hate-crime provisions may be counterproductive
because they will send a message that our opposition to hate crime is purely rhe-
torical. Once enacted, hate-crime provisions must be carefully monitored to ensure
that they are not doing more harm than good.

Second, the enactment of hate-crime legislation -may provide Parliament with
an excuse to avoid enacting other, potentially more effective, measures against hate
crime. The enactment of hate-crime legislation – whether in the form of Bill C-41
or in the form of U.S.-style intimidation provisions – cannot be the only response
to hate-motivated violence. As discussed above, the criminal law can play only a
small role in eliminating the underlying causes of group hatred. Educational strate-
gies aimed at preventing the development of bigoted attitudes must also be pursued.
Economic measures may also be needed given the role that economic factors play
in the marginalization and stigmatization of many minority groups and given the
increase of intergroup tension during tough economic times. The passage of hate-
crime legislation may provide Parliament with an excuse to avoid undertaking more
difficult and more costly measures to combat group hatred yet may offer the weak-
est prospect of bringing about significant social change.

Despite these concerns, however, I believe that U.S.-style hate-crime provisions
should be enacted. Even if the provisions can make only a modest contribution to
the reduction of violence motivated by group hatred, they play a part in a broader
solution. To this end, it may be helpful to offer some brief observations on the pol-
icy decisions involved in drafting a hate-crime provision and some thoughts as to
what, in broad terms, a Canadian provision might look like.

The enactment of U.S.-style hate-crime provisions in Canada presents five
main policy questions. The first question relates to the forms of group hatred to be
proscribed. Most intimidation statutes in the United States prohibit violence moti-
vated by the victim’s race, religion, or national origin.'” Some, however, go further
and add sexual orientation, disability, age and gender to this list.” Bill C-41 takes
an even more inclusive approach by listing hatred on the basis of race, national or
ethnic origin, language, religion, sex, age, mental or physical disability, sexual ori-
entation, or other similar factors as aggravating factors in sentencing.

A second question concerns the offences to which hate-crime legislation would
apply. Most U.S. statutes, following the A.D.L. model, list a number of specific of-
fences that, when committed with a hateful motive, constitute the offence of intimi-
dation. Such a list usually includes assault and often includes the offences of har-
assment and menacing.’7″ Again, Bill C-41 adopts a broader approach. Rather than

in See Hate Crime Statutes, supra note 21 at 4.
,’ See ibid. California, for example, includes all three of these grounds. It also includes colour and

creed (Cal. Pen. Code tit. 7, 186.21 (1995)).

” The Ohio provision, for example, includes menacing, aggravated menacing, criminal endanger-

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[Vol. 41

curtailing its application to a number of specified offences, Bill C-41 provides that
evidence that an offence was motivated by bias, prejudice or hate is a consideration
in sentencing in any case. Parliament would have to decide whether to retain this
broad approach or to limit hate-crime legislation to a number of specified acts of
violence.

Third, Parliament must decide whether to limit the ambit of a hate-crime pro-
vision to inter-group violence or whether to extend the legislation to situations in
which the accused attacks a member of his or her own group because of that mem-
ber’s association with members of a disliked group. The language of the A.D.L.
provision sustains the broader approach. Bill C-41 is ambiguous on this point but
could, arguably, be interpreted as also supporting the broader interpretation since it
does not expressly limit consideration of the accused’s hateful motive to circum-
stances in which the accused and the victim are members of different groups.”‘

The fourth issue relates to the necessity of choosing between creating a sub-
stantive offence to proscribe” hate-motivated violence or to simply amend the
Criminal Code’s sentencing provisions to enhance sentences beyond the existing
maximum where an offence is motivated by group hatred. Both of these approaches
are in use in the United States.

ing, criminal mischief and certain types of telephone harassment (See V5ant II, supra note 66 at 725).
The A.D.L. model provision suggests that the offences of assault, criminal harassment, menacing,
trespass, and criminal mischief should be included in a hate-crime provision as well as “any other ap-
propriate statutorily proscribed criminal conduct”. The full text of this provision can be found at the
text accompanying note 27, above.

,

exact wording of the relevant provision of Bill C-41 is as follows:
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 ag-
gravating 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…

For the purposes of this argument, it is significant that the final wording of this provision, shown
here, was changed from earlier versions. The previous wording could have been interpreted to pre-
clude application of this section where the offence was not motivated by the race of the victim. When
the Bill was presented for first reading, clause 718.2(a)(i) provided that the sentencing judge had to
consider “evidence that the offence was motivated by bias, prejudice, or hate based on the race, na-
tionality, colour, religion, sex, age, mental or physical disability or sexual orientation of the victim”. It
is also worth noting that this earlier incarnation did not include reference to language or ethnic origin
as grounds of hatred, nor did it include the generic catch-all “any other similar factor” (Bill C-41, An
Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequence Thereof, 1st Sess., 35th
Parl., 1994 (1st reading 13 June 1994) [emphasis added]).

1995]

M. SHAFFER – Is BILL C-41 TOUGH ENOUGH?

Finally, the degree to which the maximum penalty for committing a hate-
motivated crime should be increased beyond the existing maximum for the underly-
ing violent offence will have to be determined. Parliament must also decide
whether to impose a mandatory minimum-sentence for the presence of a hate-based
motive.

In my view, a vigorous response to hate-motivated violence would entail the
creation of a separate offence of intimidation that would explicitly recognize hate
crime as a distinct form of violence and, therefore, as a distinct offence. Creating a
separate offence acknowledges in a more direct and forceful way than a response
focused simply on sentencing that hate crime causes distinct harms to its victims, to
minority groups, and to the fabric of Canadian society. This offence could be
modelled along the lines of section 85 of the Criminal Code, which, by requiring
the imposition of a minimum term of imprisonment for indictable offences commit-
ted with a firearm, has the effect of deeming offences committed with a firearm to
be more heinous than those committed without. Like section 85, which is charged
along with the underlying offence, an accused would be charged with the offence of
intimidation in addition to the generic offence of violence. An offence of intimida-
tion would also –
impose a mandatory term of imprisonment to
be served consecutively to the sentence for the underlying violent offence. While
the sentencing range for the offence of intimidation would be determined by Par-
liament and would depend on whether the offence was indictable or punishable
solely upon summary conviction, I suggest that for indictable offences a minimum
sentence of imprisonment for six months and a maximum of five years might be
appropriate.”‘

like section 85 –

I also favour a broad approach to the policy questions involving the scope of
the offence of intimidation. In this respect, some of the features of Bill C-41 are
laudable. The grounds of hatred to be proscribed should be broadly defined –
as

76 Drafting intimidation in this way might lead to problems with the Kienapple principle, prohibit-
ing multiple convictions for the same delicts (see: R. v. Kienapple (1974), [1975] 1 S.C.R. 729, 44
D.L.R. (3d) 351 [hereinafter Kienapple]; R. v. Prince, [1986] 2 S.C.R. 480, 33 D.L.R. (4th) 724
[hereinafter Prince cited to S.C.R.]. It could be argued that the subject matter of intimidation is not
sufficiently different from the subject matter of the related violent offence to warrant convictions for
two offences. The outcome of this argument is not certain, however, given that in both Kienapple and
Prince, the Supreme Court appears to leave scope for multiple convictions where Parliament clearly
intends to abrogate the Kienapple rule. For example, in Prince, the court stated: “It has been a consis-
tent theme in the jurisprudence from Quon, through Kienapple and Krug that the rule against multiple
convictions in respect of the same cause, matter or delict is subject to an expression of Parliamentary
intent that more than one conviction be entered when offences overlap …” (Prince, ibid at 498). If,
however, my proposed offence of intimidation is objectionable based on Kienapple, I would favour
drafting intimidation to look very much like the A.D.L. offence such that offences of violence cou-
pled with a hateful motive would constitute the offence. On this model, charges for the offences of
violence would not be laid in addition to charges of intimidation and these offences would be lesser
included offences for which convictions could be registed if the greater offence of intimidation were
not established.

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[Vol. 41

they are in Bill C-41 –
so as to include sexual orientation, language, disability, and
gender in addition to the standard grounds of race, ethnic or national origin, and re-
ligion. All of these denote forms of group hatred that a pluralistic society should
condemn. While the inclusion of sexual orientation within Bill C-41 sparked con-
siderable opposition, particularly from members of the Reform Party,'” it is, in my
view, crucial that sexual orientation be a prohibited ground of hatred within any
hate-crime provision, given the well-documented level of homophobic violence.’
The offences to which intimidation can apply should also be defined inclusively, as
they are in Bill C-41. Rather than restricting the crime to a specific set of violent of-
fences, intimidation could be drafted to apply to all offences.'” Finally, I support the
view that intimidation should not be limited to inter-group violence but should also
apply where members of one group harm another member of their own group to
express dislike for a different group. To my mind, violence of this sort is clearly
hate-motivated violence and should be covered by hate-crime provisions.

Legislation of this type would, in my view, make a better contribution to re-
dressing hate-motivated violeice than does Bill C-41. As one element of a broader
strategy aimed at eliminating group hatred and promoting congenial inter-group
relations, such a provision merits serious consideration.

“7Four Liberal M.Rs-Tom Wappel, Daniel McTeague, Paul Steckle and Roseanne Skoke-

also
voted against the Bill. Opponents expressed the view that the inclusion of sexual orientation would be
a backhanded way of creating “special rights” for gays and lesbians under other statutes and would
give protection to pedophiles for their actions (see T.T. Ha, “Sex Orientation Dispute Hounds Justice
Minister” The [Toronto] Globe and Mail (16 June 1995) A4). In my view, these arguments are com-
pletely without merit.

.See e.g. Petersen, supra note 26.
‘” Although intimidation will have no relevance to many offences listed in the Criminal Code, I be-
lieve it is better to draft a provision to apply to all offences, rather than to attempt to list offences be-
forehand and risk omissions. An alternative option would be to denote a group of offences by using
the language Parliament has used in Bill C-72, which provides that the “drunkenness defence” will
not apply to any offence “that includes as an element an assault or any other interference or threat of
interference by a person with the bodily integrity of another person” (Bill C-72, An Act to Amend the
Criminal Code (Self-induced Intoxication), 1st Sess., 35th Par., 1994-1995, cl. I (assented to 13 July
1995, S.C. 1995, c. 32, and in force 15 September 1995)).