Legislation on Bias-motivated Violence

Bias Types Covered by Provisions on Aggravating Circumstances

Bias as an Express General Aggravating Factor

Canada’s Criminal Code was amended in 1996 to include penalty enhancements for crimes committed with a bias motivation. Section 718.2(a)(i) of the code provides for a court to increase a sentence in the light of an aggravating factor, to include “evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, color, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.”[1]

The government does not collect statistics on the use of article 718.2 (a)(i), although the Research and Statistics Division of the Department of Justice Canada is reportedly undertaking a study that will examine the use of these provisions. In a response to a questionnaire from Human Rights First, the Canadian government reported that “a preliminary review of published case law indicates that between 1996 and 2006 at least 48 cases have applied hate as an aggravating factor at sentencing.”[2]

According to the report on “Addressing Hate Crime in Ontario,” published in 2006 by a Hate Crimes Community Working Group appointed by the Attorney General, this provision is applied only at the sentencing stage, after the person has been found guilty of a crime. The bias motivation thus plays no role in determining a person’s guilt, but may enhance the sentence once guilt has been proven. Even then, the bias motivation is only one of several factors a judge may consider in determining the sentence, and it may thus not always result in an enhanced sentence. Even when it does play a role in the sentencing, a judge rarely specifies the extent to which a sentence is increased on account of the bias motivation.[3]

The report further finds that “statistical data about the impact of these sentencing arrangements are, again, rare to non-existent. The Working Group is aware of 28 judicial decisions, twelve from Ontario, in which sentencing courts have considered evidence that hate, bias, or prejudice constituted the whole or some part of the offender’s motivation. In seventeen of those decisions (five from Ontario), the court concluded for sentencing purposes that hate had been a motivating factor in the offense.”[4]

Bias as an Aggravating Factor in Specific Common Crimes

Under the Anti-Terrorism Act, introduced in 2001, a new provision was enacted under section 430(4.1) of the Criminal Code providing enhanced penalties for the specific crime of “mischief” when committed “in relation to property that is a building used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race, color or national or ethnic origin.”[5]

However, according to the Canadian government’s response to a questionnaire from Human Rights First, no charges have been recorded between the years of 1994/95 to 2003/2004 under this provision. The government reports that:

“this may be linked to the methodology by which statistics are reported under this provision.  In this particular case, statistics for sub-sections in all probability are reported by police agencies under the aggregate category of ‘Mischief’ (s.430). Between 1996/1997 and 2005/2006 there were 111,403 charges laid under section 430, the general mischief provision of the Criminal Code.  However, statistics pertaining to what proportion of these charges were related to ‘mischief relating to religious property,’ and/or were offences motivated by bias, prejudice or hatred are not available.”[6]

[2] Official response of the government of Canada to a Human Rights First questionnaire, received on July 2, 2008.

[3] ”Addressing Hate Crimes in Ontario: Background Documentation and Resources,” Final Report of the Hate Crimes Community Working Group to the Attorney General (2006), Part 4: Justice System, p.  4.

[4] ”Addressing Hate Crimes in Ontario: Background Documentation and Resources,” Final Report of the Hate Crimes Community Working Group to the Attorney General (2006). Part 4: Justice System, pp.  4-5.

[5] Section 430(1) of the Criminal Code of Canada provides that “[e]very one commits mischief who willfully (a) destroys or damages property; (b) renders property dangerous, useless, inoperative or ineffective; (c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.”

[6] Official response of the government of Canada to a Human Rights First questionnaire, received on July 2, 2008.