3.0 Method

The primary objective of this research is to examine how courts are applying subparagraph 718.2(a)(i) of the Criminal Code by reviewing case law from 1 January 2007, to 23 March  2020.

We searched in CanLII, WestlawNext Canada, Lexis Advance Quicklaw, and La Référence using an extensive set of search terms. In CanLII, we searched  by accessing subparagraph 718.2 of the Criminal Code and by searching case law that referenced this provision. We also searched in CanLII for case law that mentioned the words “hate" or "hatred" or "prejudice" or "bias" in the document text, removing tribunal decisions20 from the search results for a total of 1,246 cases. We also searched WestLawNext Canada, Lexis Advanced Quicklaw, and La Référence for the same set of search terms. We found and reviewed an additional 142 cases. We reviewed a total of 1,388 cases for relevance. Out of that total sample, we discarded 1,297 cases because “hate,” or subparagraph 718.2 of the Criminal Code, was absent from the sentencing judge’s consideration. After narrowing down the results further, we deemed a total of 48 cases relevant because the sentencing judge discussed or considered s.718.2(a)(i) in his or her decision. These are the cases that we analyzed and discussed in the Findings section of this report.

We also reviewed Statistics Canada’s police-reported statistics on hate crimes21 and self-reported data from the General Social Survey on Victimization22 to contextualize the findings for the published case law. Finally, we conducted a brief literature review to identify recent Canadian research and update the findings from the 2009 report pertaining to the social science literature on hate crimes in Canada.

Further, we did a separate search in CanLII, WestlawNext Canada, Lexis Advance Quicklaw, and La Référence for the four hate crime offences that are specifically criminalized in the Criminal Code (subsections 318(1), 319(1), 319(2), and 430(4.1) of the Criminal Code). We dealt with these offences separately since they are different from subparagraph 718.2(a)(i), because these offences have specific sentences built into them, and since subsections 318(1) and 319(2) require the consent of the Attorney General before court proceedings can commence under these provisions. We noted up subsections 318(1), 319(1), 319(2) and 430(4.1) within these four databases and reviewed seven cases for paragraph 318(1), 21 cases for paragraph 319(1), 47 cases for paragraph 319(2), and three cases for paragraph 430(4.1). We oriented our focus towards cases where subparagraph 718.2(a)(i), or hate as an aggravating factor, was also considered by the judge. Thus, out of that total sample, we discarded six cases for subsection 318(1), 15 cases for subsection 319(1), 35 cases for subsection 319(2), and two cases for subsection 430(4.1), because subparagraph 718.2(a)(i) or hate as an aggravating factor was not considered by the judge. After narrowing down the results, only one case was relevant for subsection 318(1), four cases for subsection 319(1), 11 cases for subsection 319(2), and one case for subsection 430(4.1). These are the cases we analyzed under the Hate Propaganda and Mischief Relating to Religious Property section of this report.

There are several limitations to relying on published case law. First and foremost, the case law that is published does not necessarily represent all adjudicated cases in an area of law. The cases tend to be precedent-setting or reflect the more serious fact situations. Because national statistics do not capture aggravating factors at sentencing, however, this approach provides some indication of trends and how the courts are addressing these cases.

Second, some cases are adjudicated, but remain unpublished and, thus, unreported. For instance, some judges render their decisions orally, without producing written copies of their judgment. In other cases, decisions can remain unpublished for specific reasons, for example in the case of a criminal jury trial where the jury provides its decision orally without producing written motives for its decision.23 However,

... in the absence of other sources of data, a careful analysis of published case law is the best indirect source of information for examining particular trends of how specific types of cases are being treated by the courts because published case law is understood to be reflective of accepted thinking on how particular legal issues or patterns of fact are being interpreted in the courts. Therefore, it represents the best data available for examining trends in decision making regarding particular legal issues.24

Third, CanLII, WestlawNext Canada, and Lexis Advance Quicklaw have comprehensive coverage of reported, and unreported case law.25 However, CanLII, WestlawNext Canada, Lexis Advanced Quicklaw, and La Référence all have specific publishing criteria that do not capture the entirety of existing court decisions. For instance, CanLII:

... does not perform a triage of decisions on the basis of substance or importance. CanLII aims at posting all written decisions distributed by courts and tribunals. That said, many decisions issued orally will never be distributed in a written format. This often happens in certain criminal cases -- for instance, when verdict decisions are rendered by a jury, without written reasons. Please also note that CanLII abides by applicable rules respecting publication restrictions and for this reason may delay publication of some decisions in order to comply with temporary bans on publication.26

According to WestlawNext Canada and Lexis Advance Quicklaw’s customer service, both these databases follow a similar approach. They publish “all cases provided to them by the courts” unless specifically requested or mandated to take a case out for legal reasons, such as a publication ban. Further, they admit that some cases “fall between the cracks,” although rarely, and that missing cases can be flagged and added to the database accordingly. La Référence’s customer service described a very similar approach to publishing cases. They do not have an editorial team making publishing decisions. Rather, La Référence’s content team receives cases directly from the courts and publishes the cases they receive. Similar to Westlaw and Quicklaw, La Référence does not publish anything that is under a ban and it cannot publish oral decisions. Thus, we know there may be existing case law that was not reported in these databases. This is a limitation.

We structured the report around the following research questions:

  1. How many cases have been reported between 2007 and 2020 where subparagraph 718.2(a)(i) has been considered? What are the facts of these cases? Characteristics of offenders, victims, and offence?
  2. What is the court’s reasoning/rationale for the application of this aggravating factor?
  3. Are there any discernible trends in sentencing as a result of the application of this aggravating factor? In terms of severity or quantum of sentence?

Footnotes

20 Such as decisions from human rights tribunals, labour tribunals, or the Immigration and Refugee Board.

21 Moreau, supra note 18.

22 Perrault, supra note 8.

23 CanLII, Frequently Asked Questions (FAQ).

24 Lawrence, supra note 1 at 15.

25 Queens’ University Library, Legal Citation with the 9th edition of the McGill Guide.

26 CanLII, supra note 23.