But do not panic because Canada’s Criminal Code not only includes five hate-based offences but also allows a judge to consider during sentencing whether hate motivated any other offence.
In Canada, we do not have an offence in our Criminal Code that is called a “hate crime.” Yet during a time when hate speech and acts of hate towards racialized and/or marginalized communities seem to be daily and disturbing news, the lack of a hate crime offence can be alarming to some.
But before you call up your local MP, know these two things about hate and criminal offences:
- There are five hate-based offences in the Criminal Code, and
- Any crime where hatred towards a particular persons or group motivates the offender becomes more complex and serious.
Hate-based offences
The Criminal Code lists five offences that are based in hate:
- Section 318 – Advocating Genocide
- Section 319 (1) – Public Incitement of Hatred
- Section 319 (2) – Wilful Promotion of Hatred
- Section 319(2.1) – Willful Promotion of Antisemitism by denying, condoning, or downplaying the Holocaust
- Section 430(4.1) and (4.101) – Mischief to Public Property Motivated by Hate
The court assesses hatred on the extreme nature of the words or actions an accused uses. The words or actions must also target an identifiable group. An identifiable group is defined in section 318(4) of the Criminal Code as “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.”
Legally, hatred can be defined as communications that promote that members of an identifiable group should be despised, scorned, disrespected, and/or subject to ill treatment simply because of their membership (or perceived membership) in an identifiable group. Even comments in an internet chatroom directed towards an identifiable group can be conduct that is regulated by the Criminal Code because of the public nature of internet forums.
Hate-motivated crimes
What’s clearly absent from the Criminal Code is any specific offence for a violent criminal act that includes a hateful component or hate-based motivation.
A sad but true example would be if an individual was assaulted because of their sexual orientation, race or religion. What comes to mind is the tragic murders of the Afzaal family on June 6, 2021. The perpetrator cannot be charged with a hate crime because none exists. Instead, Mr. Veltman was charged and convicted of four counts of first-degree murder and one count of attempted murder.
However, a race-based or other hate-centric motive will always be relevant at trial. It can add a layer of complexity to the crime and deem the offence a more serious one. In Mr. Veltman’s case, prosecutors argued for the first time in Canada that terrorism underpinned the motive for the murder of the Afzaal family.
When an offender is found guilty of a criminal offence in Canada and the judge is deciding on an appropriate sentence, section 718.2(a)(i) of the Criminal Code says they must give weight to any evidence that the crime 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 any other similar factor”.
In the sentencing proceeding of Mr. Veltman, prosecutors argued the murders and attempted murder were acts of terrorism. Justice Pomerance, the presiding jurist on this case, will determine in her ruling how much the hate-based motivation for the crimes, and the actual evidence of white supremist and racist ideology manifestos seized by police in this case, will affect the total sentence. Given the large amount of racist and hate-based evidence police uncovered in this investigation, it is likely that Justice Pomerance will give some weight to this evidence.
When there is clear evidence of bias, prejudice or hate-based motivation in any crime in Canada, the law is clear: the court must give due attention and weight to it. Technically speaking, this means that no matter what offence an offender is guilty of, it can be designated as motivated by hate, and thus, be labelled as a hate crime.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.