QUICK TAKEAWAY
Hate Crime is an act against a person, group of people or property that is motivated by hate, prejudice or bias based on race, colour, nationality or ethnic origin, language, religion, sex, age, mental or physical disability or sexual orientation. It is covered by three sections of the Criminal Code, including: Section 318, which deals with advocating genocide against a group; Section 319 (1), the public incitement of hatred; and Section 319 (2), the wilful promotion of hatred. A hate crime can include harassment, intimidation, violence or the threat of violence and depending on the specific charge is punishable by a prison term of up to five years.
Table of Contents:
What is a Hate Crime?
A criminal act against a person or property motivated by hate or bias against a person's or group's race, religion, ethnicity, sexual orientation or disability is considered a hate crime. The offence can include hate propaganda that is spread in a public place by telephone, is broadcast or through other audio or visual means.
Statistics Canada reported 1,946 police-reported hate crimes in Canada in 2019, up seven per cent from the previous year, noting that other than a peak of 2,073 hate crimes in 2017, police-reported numbers were the highest since 2009.
The COVID-19 pandemic saw a significant spike of hate crimes against Asian-Canadians, with major cities across the country reporting crime rates that are 600 to 700 per cent higher than the previous year, according to Fight COVID Racism. The group's study found there were 891 reported incidents of anti-Asian hate crimes a year into the pandemic.
The three sections of the Criminal Code that address hate-related offences are:
- Section 318 states that anyone who advocates or promotes genocide is guilty of an indictable offence;
- Section 319 (1) makes it illegal to make statements in any public place that incite hatred against any identifiable group where such incitement is likely to lead to a breach of the peace;
- Section 319 (2) deals with the "wilful promotion of hatred" other than in a private conversation.
What is Needed to Convict
The Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you committed the offence and the victim is not fabricating the testimony against you. Your lawyer may be able to show that your rights under the Canadian Charter of Rights and Freedoms were breached during a police investigation.
The Code states no person shall be convicted of wilful promotion of hatred if:
- the accused establishes that the statements communicated were true;
- the person expressed in good faith or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
- the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds they believed them to be true; or
- the accused in good faith intended to point out matters producing or tending to produce feelings of hatred toward an identifiable group in Canada in an effort to have them removed.
Treated as a Summary Conviction or Indictable Offence
Hate crime is considered a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, which allows the Crown prosecutor to proceed with the charge as an indictable offenceIndictable offences are more-serious criminal offences or by summary convictionUsed for lesser offences. You will face less severe penalties if the Crown proceeds as a summary conviction.
Penalties for Hate Crime Offences
The penalties vary depending on the section of the Code. Advocating genocide is an indictable offence and a conviction could land you in prison for up to five years.
Public incitement of hatred and wilful promotion of hatred carries a maximum jail sentence of up to two years if the Crown elects to proceed with the charge as an indictable offence.
Such factors as the seriousness of the incident and your prior criminal record will be considered by the judge if you are convicted.
According to s.718.1 of the Criminal Code, any punishment "must be proportionate to the gravity of offence and the degree of responsibility of the offender." The vulnerability of a victim by virtue of disability or other similar factors is considered and may have a significant impact on sentencing, according to the Department of Justice.
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Ayesha Kumararatne
Peter Azzi Law Office
Shore & Johnston
Céline Dostaler
Murray Fakih Criminal Defence Professional Corporation
Jason Gilbert B.A., Ll.B
Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
