1.0 Introduction

Under Canada’s Action Plan Against Racism (CAPAR) (a government-wide strategy from 2006 to 2010), the Research and Statistics Division, Department of Justice Canada, did a study to examine how courts applied hate as an aggravating factor at sentencing (subparagraph 718.2(a)(i) of the Criminal Code). The 2009 study examined whether cases applying hate as an aggravating factor at sentencing reflected the number of self-reported hate incidents or police records of hate crimes, whether the application of subparagraph 718.2(a)(i) resulted in longer or more restrictive sentences, and whether legal thinking evidenced in case law, particularly the degree of motivation required to apply the aggravating factor,  evolved over time.

The 2009 study examined case law, as well as police-reported hate crime statistics and academic literature.1 The study examined case law published from 1977 to 2006. The beginning of the study period started in 1977 as “hate motivated bias was recognized by Canadian courts as an aggravating factor at sentencing”2 in the 1977 decision of R v. Ingram and Grimsdale.3 Thus, the search included the words “hate,” “prejudice,” and “bias” to find case law that considered hate an aggravating factor at sentencing published between the years 1977 and 1995.

In 1995, Parliament amended the Criminal Code and adopted subparagraph 718.2(a)(i), which made “it unnecessary to wait for judges to extend incrementally the application of [sentencing principles related to hateful motivation] to different offences. Section 718.2(a)(i) suddenly ma[d]e these anti-discrimination values potentially applicable to all criminal offences.”4 As soon as hate motivation, prejudice, or bias were codified as aggravating factors to any Criminal Code offence in 1995, the 2009 study reviewed subparagraph 718.2(a)(i) of the Criminal Code to find case law that involved hate as an aggravating factor at sentencing published between 1995 and 2006.

The purpose of the present study is to update the findings collected in the 2009 study and to examine case law that involved subparagraph 718.2(a)(i) of the Criminal Code from 2007 to 2020.

Footnotes

1 Austin Lawrence, Hate as an Aggravating Factor in Sentencing in Canada. Ottawa: Department of Justice Canada.

2 Ibid at 40.

3 R. v. Ingram (1977), 35 CCC (2d) 376, [1977] O.J. No. 531.

4 Lawrence, supra note 1 at 40.