Executive Summary

This study examines the way courts have applied hate as an aggravating factor at sentencing (subparagraph 718.2(a)(i) of the Criminal Code). The main purpose of this research was to identify the most common characteristics of offenders and victims of hate crimes, to identify the most frequent grounds of victimization, the reasoning behind the courts’ application of subparagraph 718.2(a)(i) of the Criminal Code, and to find trends in the way sentencing judges determine the quantum of sentences after they apply subparagraph 718.2(a)(i) of the Criminal Code.

To meet these objectives, research was conducted primarily through a review of case law databases to examine sentencing decisions published from 2007 to 2020 that considered subparagraph 718.2(a)(i) of the Criminal Code. This research also examined police-reported hate crime statistics between 2010 and 2018 and self-reported hate crime statistics from the 2014 General Social Survey to establish comparisons with published case law dealing with hate as an aggravating factor at sentencing.

In published case law dealing with hate as an aggravating factor at sentencing, most hate crime offenders acted alone, rather than as part of a group. Offences committed by male offenders made up the majority of case law reviewed in this study. In a small minority of cases, a female was the principal perpetrator.

The average age of hate crime offenders was about 31 years old in published case law reviewed in this study. This number is consistent with 2018 police-reported hate crime statistics where the median age of offenders was 32 years old. In the case law, offenders identified as White were the most frequent offenders . In only one case was an offender identified as Black.

In the reviewed case law published between 2007 and 2020, violent offences were the most common types of offences, including assault (levels 1, 2, and 3), manslaughter, and first-degree murder. In contrast, in police-reported hate crime statistics in 2018, non-violent offences were the most reported charges.

Hatred against race, nationality, or ethnicity is the most common motivating factor recorded in the published case law. Within case law dealing with racial hatred, the Arab population was the most targeted racialized identity group followed by the Black population. In police-reported hate crime statistics, the Black and the Arab communities were also the most targeted racialized identity groups; crimes against the Black population were the most frequent grounds of victimization. Where offences were motivated by hatred against race, Indigenous and White victims were overrepresented in published case law compared to police-reported hate crime statistics.

In both police-reported hate crimes and the published case law, hate crimes committed on the grounds of religion were the second most frequent grounds of victimization. In the reviewed case law, the Muslim population was the most targeted religious identity group. Further, significantly fewer crimes targeted against the Jewish population were recorded in published case law than in police-reported hate crime statistics, where the Jewish population was the most targeted religious identity group.

Between 2007 and 2020, sentencing judges started applying subparagraph 718.2(a)(i) to crimes committed on the grounds of religiously motivated violent extremist ideologies. In these cases, the sentencing judge found that hatred on the grounds of religion was an aggravating factor at sentencing.

Hate crimes committed on the grounds of age, language, or a disability were the three least frequent grounds of victimization recorded in published case law dealing with hate as an aggravating factor at sentencing. Hatred against a victim’s age, language, or disability was not identified as an aggravating factor in the application of subparagraph 718.2(a)(i) of the Criminal Code. Police-reported hate crime statistics also recorded low frequencies of hate crimes committed on the grounds of age, language, or disability.

In the case law and in police-reported hate crime statistics, sex is rarely recorded as a motivating factor. This was also found in the review of case law from 1996 to 2007 (Lawrence et al. 2009). However, between 2007 and 2020, there was an increase in published case law dealing with hate crimes committed on the grounds of sex, specifically hate crimes against females. In addition, between 2010 and 2018, police-reported violent hate crimes committed against Indigenous and Muslim populations were more likely to involve female victims in comparison with crimes against other identifiable groups.

Further, in both the case law and in police-reported hate crime statistics, there was a decrease in crimes committed on the grounds of sexual orientation. Between 2006 and 2020, crimes committed on the grounds of sexual orientation decreased by more than half in comparison with the 2009 report’s study period. Similarly, in police-reported hate crime statistics, crimes committed on the grounds of sexual orientation have consistently decreased since 2013. In the case law reviewed for this study, the gay population was the only group targeted by hate crimes committed on the grounds of sexual orientation. In police-reported hate crime statistics, the gender orientation or expression of victims were also targeted identity groups, i.e., the lesbian, bisexual, asexual, and pansexual communities.

Between 2007 and 2020, sentencing judges have categorized new identity groups under the meaning “other similar factors,” which had not been considered prior to 2007. Sentencing judges found that offences motivated by hatred towards political beliefs, against police officers, and against homeless people were aggravating factors at sentencing. In one instance, a sentencing judge examined whether hatred against an identifiable street gang was an aggravating factor at sentencing, but the judge concluded that “other similar factors” could not bear that meaning.

In the application of subparagraph 718.2(a)(i), the most commonly discussed sentencing principles are deterrence and denunciation. There was an increase in the number of times courts have cited the protection of society compared to the previous study.

The offender pleaded guilty to the accusations in little over half of published case law. Further, after courts found that hate was an aggravating factor, the average length by which sentences were increased was about 70 percent. However, the number of judges who detailed the quantum by which sentences were increased after courts applied hate as an aggravating factor at sentencing, was significantly lower than that between the years 1977 and 2006.