2.0 Background

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What are hate crimes?

Hate crimes are criminal acts motivated by an extreme bias or hatred towards a particular social group. Hate crimes may be directed at symbolic physical targets (such as a mosque) or individual victims. The defining characteristic of hate crime is that the offender is motivated by their hatred of the victim’s imputed identity in a particular socially defined group, rather than anything idiosyncratic about the victim or their behaviour. Both qualitative and quantitative research show that hate crimes cause “disproportionate harm” to both individual victims and the wider population or community that shares the targeted identity characteristic of the hate crime victim.5

The Criminal Code criminalizes specific kinds of activities as being either crimes of hate propaganda or hate crimes.

There are three hate propaganda offences. It is an offence under subsection 318(1) of the Criminal Code to advocate or promote genocide against an identifiable group. It is an offence under subsection 319(1) to incite hatred against an identifiable group in a public place that is likely to lead to a breach of the peace. It is an offence under subsection 319(2) to wilfully promote hatred against an identifiable group other than in private conversation. “Identifiable group” is a defined term in the Criminal Code (subsection 318(4)).

Regarding hate crimes, there is a specific offence, now in subsections 430(4.1) and (4.101) of the Criminal Code, of mischief to property that is primarily used for a religious purpose, or certain other kinds of property (such as educational institutions or community centres) that are primarily used by an identifiable group, where the mischief is committed out of bias, prejudice, or hatred against an identifiable group. Before 12 December 2017, this offence was defined only in subsection 430(4.1) and was restricted to property primarily used for religious worship.

In addition to this specific hate crime, the Criminal Code, in subparagraph 718.2(a)(i), requires courts to consider, as an aggravating factor when determining the sentence for any crime, if the crime was motivated by hatred, bias, or prejudice, based on numerous criteria. The relevant part of section 718.2 reads:

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 aggravating 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 gender identity or expression, or any other similar factor.

It should be noted that “gender identity or expression” was added in 2017 to subparagraph 718.2(a)(i).6

Hate as an aggravating factor at sentencing was included in the Criminal Code in 1995 under Bill C-4, along with a number of other sentencing reforms. Since then, a number of other aggravating factors have been added to paragraph 718.2(a).7

Measuring hate crime in Canada

The number of incidents of alleged hate crime in Canada is measured by both police-reported and self-reported national surveys. Police-reported incidents only refer to incidents that are brought to the attention of law enforcement and reported on in the Uniform Crime Reporting Survey (UCR). The Canadian Centre for Justice Statistics made significant efforts a decade ago to improve police-reported data on hate crimes by developing training materials for front-line police officers and providing training to police services across the country.

Self-reported data are collected through the General Social Survey (GSS) on Canadians’ Safety (Victimization) every five years. These data complement police-reported data and reflect the victim’s belief as to whether the incident was hate-motivated. The latest national self-reported data available are from the GSS 2014; the next cycle of the survey was in the field in 2019, with results released in late 2020. The 2014 GSS showed that two-thirds of the 33,000 criminal incidents seen by victims as hate-motivated were not reported to police (69 percent).8 Together, police-reported and self-reported data present a more comprehensive picture of hate crime in Canada, as with other underreported crimes, such as sexual assault and intimate partner violence.

The Integrated Criminal Court Survey (ICCS) provides data on the outcomes of cases in Canadian courts, as well as the sentences ordered by the court. ICCS data can provide details on the hate propaganda and hate mischief offences. Unfortunately, the ICCS does not capture aggravating factors at sentencing so it is not possible to know from the general data which general offences were hate-motivated and whether this was considered at sentencing. For this information, it is necessary to turn to case law, or court and Crown files. The latter method is labour-intensive. Reported case law is publicly available through CanLII, as well as other jurisprudence databases, such as Westlaw, QuickLaw, and others.9

In this case law review, case law is used as a data source for social science analysis, rather than legal analysis. Although the judge’s reasoning is included, this study is interested in the characteristics of the offender, the victim, and the case itself. This report also includes national data from Statistics Canada and relevant academic literature from the past decade.

Statistics on hate crime in Canada

The General Social Survey (GSS) on Victimization (2014) collects data on victimization as reported by individuals, rather than on what police report. Both police-reported data and data collected through the GSS show that these crimes most often involve minority groups.

Results from the GSS show that:

Among the minority groups covered by section 718.2 of the Criminal Code, people self-identifying as homosexual or bisexual recorded the highest violent victimization rate at 207 incidents per 1,000 population, compared to 69 per 1,000 for heterosexuals, according to the 2014 GSS. People with disabilities also had an above-average victimization rate (123), and while this category includes all types of disabilities, physical and mental, these higher rates appear to be specifically the result of the high victimization rates among those with a mental or learning disability.10

Further, it is interesting that “the 2014 GSS on Victimization asked victims of crime whether or not they believed the incident committed against them could be considered a hate crime. Findings indicate that in most (76 percent) violent incidents involving an immigrant victim, the victim did not believe the incident was motivated by hate - a proportion similar to that among non‑immigrant victims.”11 12

Results from the 2014 GSS indicate that, generally, the nature of the violent incidents reported by Canadians did not vary by religious affiliation. Overall, most individuals experienced a single incident and did not believe the incident was a hate crime. Additionally, most incidents involved a male offender, although this proportion was slightly lower among individuals with no religious affiliation (80 percent) than Christians (88 percent).13

An article published using data from the 2014 GSS also found that:

Overall, immigrants and people who reported belonging to a visible minority group were less likely than non-immigrants and persons not belonging to a visible minority group to say that they felt very safe walking alone in their neighbourhood after dark (Chart 12 and Table 3).14 These differences were more pronounced for people who had immigrated since 2005 (46% versus 54% of non-immigrants) and for certain visible minority groups, such as those identifying themselves as Chinese (38%), Filipino (41%) or Southeast Asian (40%) compared with those who do not self-identify with any visible minority group (54%).15

Perhaps due to the fact that crimes against the Arab and West-Asian population have increased, the Arab and West-Asian populations, especially women, say they felt somewhat or very unsafe walking alone in their neighbourhood after dark.16 The homosexual population was also less likely than the heterosexual population to say they felt very safe while walking in their neighbourhood after dark.17

Police-reported hate crimes are quantified through the Uniform Crime Reporting Survey (UCR). This report used the most recent UCR statistics published in 2018. Police-reported hate crimes are defined by the UCR as follows: “Police-reported hate crime is defined as a criminal violation against a person or property motivated by 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.”18 In 2018, 1,798 hate crimes were reported by the police in Canada.19 This was the second highest number of police-reported hate crimes recorded from 2009 to 2018, after those reported in 2017.

In police-reported hate crime statistics for 2018, crimes motivated by hatred towards race/ethnicity, and religion were the most frequent grounds of hate-motivated crimes. The religious group that is most often targeted is the Jewish population (20 percent of total police-reported hate crimes), followed by the Muslim population (10 percent of total police-reported hate crimes). The Black population is the group most frequently targeted by race (16 percent of total police-reported hate crimes), followed by the Arab/West Asian population, which accounts for six percent of total police-reported hate crimes.

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