With the recent events in Charlottesville, displays of racism and hatred are dominating headlines. But what, exactly, constitutes a hate crime?
In Canada, generally speaking, there are two ways that the courts deal with criminal offences motivated by hatred against a specific group. On the one hand, there are a few sections of the Criminal Code that speak directly to acts of hate. On the other, a motivation of bias, prejudice or hate based on a number of grounds such as race, ethnicity and gender can be used as an aggravating factor on sentencing.
The Criminal Code of Canada offers a few specific offences that deal with these crimes. First, there is the charge found in s. 319(1) of inciting hatred. This means that a person is encouraging hatred through their acts. In Ottawa, a teen who spray painted racist propaganda on various religious buildings was charged with inciting hatred, as well as mischief to religious property contrary to s. 430.4.1 of the Code. This section would also capture acts such as burning crosses.
Next, s. 319(2) of the Code criminalizes wilfully promoting hatred against an identifiable group. The person must be communicating hateful remarks outside of a private conversation, with the intention of promoting hatred. The Court is required to consider the circumstances and context in which the words were spoken. (The Court also criminalizes inciting genocide under s. 318 of the Code.)
Still, the line between what is simply hateful and racist, and what is specifically a 'hate crime' is not always clear. Justice Campbell of the Nova Scotia Provincial Court grappled with this distinction in the case of R. v. A.B., noting that hate crimes involve the promotion of hatred, not its expression or manifestation (para 17). So, the manifestation of hatred, for example through a physical attack, however abhorrent, is not technically classified as a hate crime under the Code.
Realistically, more traditional offences that are motivated by hate are more common. In this graph showing data from 2014-2015, Statistics Canada uses the term 'hate crime' as a catch-all for offences motivated by hate, but it's clear that the number offences of inciting hatred are much fewer than that of mischief or uttering threats.
This distinction, however, simply allows for the court to address racism and hatred in sentencing. The courts must take into account that an offence was motivated by hate at the sentencing stage. Section 718.2 of the Code specifically outlines aggravating factors in sentencing that a court must take into account, including:
(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 gender identity or expression, or on any other similar factor,
The section requires if a person assaults someone based on their race, or any other reason listed above, then the court has to take that into account in sentencing as an aggravating factor. In other words, the overall sentence will likely be more serious.
Regardless of how an offence is classified, whether an act is categorized as a hate crime or simply fuelled by hate, it should be taken extremely seriously by the courts.