4.0 Findings

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Canadian criminal courts have previously stated that subparagraph 718.2(a)(i) is a “rarely used provision”27 and that sentencing judges have given only limited consideration to subparagraph 718.2(a)(i).28 The findings from this review of published case law corroborate this statement. Between 2007 and 2020, 48 published cases dealt with subparagraph 718.2(a)(i), or hate as an aggravating factor at sentencing, in some manner. This published case law can be divided into five analytic categories according to the level of consideration that subparagraph 718.2(a)(i), or hate as an aggravating factor, was given by the sentencing judge. Table 1 shows the distribution of case law among these five analytic categories.29

The findings in Table 1demonstrate that in the majority of cases where hate, bias, or prejudice towards an identifiable group was at least discussed, subparagraph 718.2(a)(i) of the Criminal Code did receive a level of consideration by the sentencing judge (86 percent). Where subparagraph 718.2(a)(i) of the Criminal Code was specifically considered, the majority of cases applied prejudice, bias, or hate motivation as an aggravating factor at sentencing (65 percent). Thus, where subparagraph 718(a)(i) was considered at sentencing, the findings show an increase in the percentage of cases from 2007 on that applied subparagraph 718.2(a)(i) at sentencing (65 percent), in comparison with cases published between 1977 and 2006 (60 percent). In about one-third of the case law reviewed for this study, subparagraph 718.2(a)(i) was discussed, or considered, without being applied at sentencing (31 percent).

Charge

The majority of published case law (75 percent) dealing with hate as an aggravating factor at sentencing between 1977 and 2006 was for violent offences.31 For the current study period, the findings show that violent offences are still the most common offences, at 86 percent (Table 2). The remaining charges in the recent study period were for non-violent offences (14 percent). We also find consistency in the nature of the charges laid against offenders where hate was considered an aggravating factor at sentencing. In case law published between 2007 and 2020, more serious offences largely predominate over less serious offences,32 as also occurred in case law published between 1977 and 2006 33 (Table 2).

Conversely, the majority of police-reported hate crimes were reported for non-violent offences. In 2018, 57 percent of police-reported hate crimes were for non-violent offences and 43 percent were for violent offences.34 In police-reported hate crime statistics, this was largely due to the high volume of regular mischief (45 percent of all police-reported hate crimes). However, it is interesting to note that the volume of non-violent police-reported hate crimes declined between 2017 and 2018 (down 21 percent), at the same time as violent police-reported hate crimes increased (up 38 percent).

Victim Characteristics

There are several trends regarding the characteristics of hate crime victims recorded in published case law.

• Most victims are male: In published cases where hate was considered an aggravating factor at sentencing, there were more than twice the number of male victims as female victims. Within the 33 cases containing information about the sex of the victim, there were a total of 45 victims. Thirty of them were male victims (67 percent) whereas 15 of them were female victims (33 percent). These findings are similar to police-reported hate crimes where, between 2010 and 2018, 32 percent of police-reported hate crimes involved female victims whereas 68 percent involved male victims.38

• Age of victims varies: Within published case law considering hate as an aggravating factor at sentencing, only nine cases included information about the age of the victims. Within these nine cases, there were a total of 13 victims: six female victims between the ages of 12 and 23 and seven male victims between the ages of 17 and 82. However, as mentioned in the 2009 report, “unfortunately, with such a small fraction of published cases recording this information and an unknown relationship with actual cases, it is impossible to know if this marked age differential in younger female victims and older male victims is an actual characteristic of cases considering hate as an aggravating factor.”40
• Community is affected by hate crime: In the context of hate crimes, “not only are individuals victimized by the offender, but the community of people who share the identity of the victim are also impacted.”41 In some cases, when the offender’s animosity is targeted at a certain identity group, the offender will intentionally target a community of people when committing a hate crime.42 In half of the 48 published cases, the facts surrounding the offenders’ actions indicated that they targeted individual people as victims (e.g., murder, assault), and eight offenders targeted groups of people (17 percent) (e.g., assault on a family or group of friends). In 16 of the cases (33 percent), the facts surrounding the offenders’ actions indicated that the offender targeted whole communities as victims (e.g., mischief, threats, participating in activity of a terrorist group).

Victim impact statements describe the harm done to and the loss suffered by the victim of the offence and the Court must consider them when sentencing the offender. They were first introduced in the Criminal Code in 1988 and the provisions have been amended several times since then.43 44

As previously mentioned, in the context of hate crimes, a hate crime is committed not only against an individual, but against an entire identity population or community. A decade ago, research conducted by the Department of Justice found in two case studies that examined the community impact of hate crime that communities of identity were affected more adversely than geographic communities.45 In one of the cases, a community impact statement (CIS) was prepared and read out to the court during the sentencing trial of one of the offenders. A CIS may describe the losses suffered by the community affected, such as a neighbourhood or business association, or equality-seeking organization. When the Canadian Victims Bill of Rights46 came into force in July 2015, amendments strengthened victims’ participation rights and made community impact statements (CIS) available for all offences.47 Prior to the 2015 amendments, a sentencing judge had the discretion to allow a CIS to be presented and they were, in a small number of cases.

In the majority of cases dealing with hate as an aggravating factor at sentencing published between 2007 and 2020 (69 percent), the victims of the crime filed neither a victim impact statement nor a community impact statement. In more than a quarter of the cases dealing with hate as an aggravating factor at sentencing (29 percent), the victims of the offence filed at least one victim impact statement. In two of these cases, the victims of the offence filed multiple victim impact statements (cases where the victims filed 10 and six different victim impact statements, respectively).

Interestingly, even though 16 cases deal with offenders that seemed to target communities as victims, the community filed a community impact statement in only one case48 (two percent). One possible way to understand the low number of community impact statements filed is that 29 of the 48 cases dealing with hate as an aggravating factor at sentencing were heard before the Canadian Victims Bill of Rights came into force on 23 July 2015.

Grounds of victimization

The reasons for victimization, that is, the identity that motivated the offender’s criminal behaviour, are extremely important. Subparagraph 718.2(a)(i) of the Criminal Code provides a non-exhaustive list of grounds - 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.

An important caveat was noted in the 2009 report, “The legislation is organized around the assumption that identity is established by the perpetrator of a crime, not by the victim. Anti-hate crime legislation functions in the absence of the victim’s self-identity.”49 This is because in law it is the interpretation of evidence surrounding the motivation of the offender that determines if a hate crime has occurred, not the victim’s interpretation of how their identity has been affronted through their experience of the criminal incident. As might be expected from crimes often perpetrated out of bigotry and ignorance, the offender’s conception of the victim’s identity and the victim’s conception of their own identity often match imperfectly or sometimes not at all.”50 Table 5, below, documents the different grounds found in the cases.

Race, ethnicity, and nationality

As shown in Table 5, the most common grounds of hatred recorded in the published case law dealing with hate as an aggravating factor at sentencing, accounting for half of the offences, are race, nationality, or ethnicity. These findings are consistent with the 2018 police-reported hate crime statistics where the most frequent grounds were also race, nationality, or ethnicity (44 percent). Crimes committed on these grounds accounted for 780 police-reported hate crimes.54 Table 6, below, provides a further breakdown of these grounds.

Although the small number of cases make comparisons difficult, Arab and Black populations are the most targeted racialized groups in both police-reported hate crimes and in published case law dealing with hate as an aggravating factor in sentencing. In the case law we reviewed for this study, the Arab population was the most targeted racialized group by crimes committed by hatred of race (30 percent). In police-reported hate crimes from 2018, the Arab population was the second most targeted racialized group.

Further, the findings reveal that the Indigenous and White populations are overrepresented in published case law where offences were motivated by hatred towards race, compared with police-reported hate crime statistics. Crimes committed on the grounds of hatred towards the Indigenous and the White populations are the third and fourth most targeted racialized groups in published case law (13 percent and nine percent, respectively), whereas they were the two least targeted racialized groups in police-reported hate crimes in2018.

As shown in Table 5, seven cases were motivated by hatred towards an ethnicity or a nationality (12 percent of total hate crime motivations). Out of these seven cases, four cases applied hatred towards an ethnicity or a nationality as an aggravating factor at sentencing for offenders who committed crimes on the grounds of religiously-motivated violent extremist ideologies (57 percent of case law dealing with hatred towards a nationality or an ethnicity). The remaining three cases dealing with crimes motivated by hatred towards an ethnicity or a nationality were targeted against victims of the Persian population (14 percent), the Syrian population (14 percent), and the Middle Eastern population (14 percent).

Religion

The second most frequent grounds of hate crimes are hatred towards a religious group, in both published case law dealing with hate as an aggravating factor at sentencing (23 percent) and in police-reported hate crime statistics (36 percent).56 A total of 639 police-reported crimes were motivated by hatred towards a religious group in 2018.57 Religious hate crimes targeted the Jewish population in 347 instances (54 percent), making it the most targeted religious group.58 Although police-reported hate crimes motivated by hatred towards the Muslim population decreased by 54 percent in 2018 (in comparison with 2017), hatred towards the Muslim population remained the second most targeted religious group in police-reported hate crimes.59 A total of 173 police-reported hate crimes targeted that population (27 percent).60

Consistent with the findings of the 2009 report,62 the Muslim and the Jewish populations remain the only two religious identity groups targeted by hate crimes in published case law dealing with hate as an aggravating factor at sentencing. The Muslim population was the most targeted group among case law where crimes were motivated by hatred towards a religion (50 percent). This represents an important change from the 2009 report where crimes targeted against the Muslim population accounted for only nine percent of religious hate crimes.63 Interestingly, out of the 14 cases dealing with hatred towards religion, the Jewish population was only targeted once (seven percent). Although the proportions remain small, this number is significantly less than the numbers reported in the 2009 report where four cases dealt with hatred towards the Jewish population (80 percent of cases dealing with hatred towards religion).64 Also, the findings show that the Jewish population is considerably underrepresented in the published case law in comparison with police-reported hate crime statistics, where the Jewish population was targeted by 347 hate crimes (54 percent of police-reported hate crimes targeted against a religion).

Contrary to published case law dealing with hate as an aggravating factor at sentencing, the Jewish and Muslim populations were not the only religious identity groups targeted in police-reported hate crime statistics in 2018.65 There were 35 instances where crimes motivated by hatred of a religion targeted the Catholic population (six percent), and 46 that targeted other religions (e.g. Sikhs, Hindus, Buddhists, etc.) (seven percent).66

A little over three quarters of the published case law dealing with hatred towards a religion were for non-violent offences (79 percent), including nearly a third that were for offences against property (29 percent). Violent offences made up only three cases dealing with hatred towards a religion (21 percent). Police-reported hate crime statistics are consistent with these findings. Among the two most targeted religious groups, 84 percent of crimes motivated by hatred against the Jewish population and 60 percent of crimes targeted against the Muslim population in 2018 were non-violent.

In published case law considering hate as an aggravating factor at sentencing, sentencing judges have started applying subparagraph 718.2(a)(i) of the Criminal Code to crimes committed on the grounds of religiously motivated violent extremist ideologies. Within the 14 cases dealing with hatred towards a religion, six cases dealt with crimes committed on the grounds of religiously motivated violent extremist ideologies (43 percent). Although judges did not identity the specific religion targeted by these beliefs, hatred towards a religion was deemed an aggravating factor at sentencing in all six of these cases. In all six of these decisions terrorist activities were planned and inspired by religiously motivated violent extremist ideologies. However, in all six cases, the terrorist activities were intercepted before they were put into action.

Language

In the previous report, there were no instances where published case law dealt with hatred based on language as an aggravating factor at sentencing.67 During the current study period, only a single case considered hate towards a language as an aggravating factor at sentencing (two percent). In R v Warren SRM (Officer Cadet),68 the sentencing judge considered hatred towards Francophones when examining the applicability of subparagraph 718.2(a)(i) to a violent offence (Assault causing bodily harm [CC, s. 267(b)]). In this decision, the sentencing judge concluded that the prosecutor failed to provide sufficient evidence to prove that hatred towards Francophones was an aggravating factor at sentencing. In this case, the offender made comments against Francophones, but the prosecutor failed to prove that the offender was motivated by hatred towards French‑speaking Canadians when committing the assault.

In police-reported hate crime statistics in 2018, language is the sixth most frequent grounds for hate crimes.69 In 2018, only 14 police-reported crimes were committed on the grounds of hatred towards a language (one percent). Although the number of police-reported hate crimes committed on the grounds of language is available, the nature of these crimes is not (e.g., anti-French or anti-English, violent or non-violent crimes).

Age

As noted in the previous report: “Hate crimes motivated by ageism are very rarely recorded by police services in Canada.”70 In 2018, 10 police-reported hate crimes were motivated by hatred towards the victim’s age. This represents less than one percent of total police-reported hate crimes.71 The findings collected in the course of this study corroborate these numbers. For the current study period, the sentencing judge considered hatred towards age as an aggravating factor at sentencing in only one case (two percent).

In R v MacLean,72 the sentencing judge stated that subparagraph 718.2(a)(i) was relevant in this case. The judge began by recognizing that there is a difference between an offender who deliberately commits a crime while knowing that the victim is underage, and an offender who is not aware of the victim’s age. The sentencing judge then applied this principle to the facts of the case and stated that, in this case, the offender failed to take reasonable steps to find out the victim’s age, which is punishable, although less blameworthy, than an offender who deliberately lured a child to commit a crime. The sentencing judge recognized the relevance of subparagraph 718.2(a)(i) and analyzed the relationship between the offender and the victim’s age. However, the judge did not specify whether he considered these facts aggravating and whether he applied subparagraph 718.2(a)(i) with regard to age.

Sex

As noted in the previous report about hate as an aggravating factor at sentencing:

Sex and gender are … often confused in common understanding, in collected statistics, and by the courts. Sex is the biological descriptor of being physically male or female. Gender is the set of social meanings that is given to being a man or a woman (and in some cultures other genders, as well). In published cases, gender and sex appear to often be used interchangeably. Thus, in 718.2(a)(i) the ground of “sex” includes crimes motivated by hatred of either sex or gender. Further, Canadian courts and human rights tribunals have tended to understand that gender identity is equated with sex as an analogous ground of discrimination or hatred.73

Importantly, in 2017, the Criminal Code was amended to specifically include gender identity or gender expression as two of the grounds in subparagraph 718.2(a)(i).

In police-reported hate crimes, only 49 hate crimes were motivated because of hatred based on the victim’s sex or perceived sex (three percent of total police-reported hate crimes). Between the years 2010 and 2018, violent hate crimes committed against the Indigenous (45 percent) and Muslim populations (45 percent) were more likely to involve female victims in comparison with crimes against other identifiable groups. However, the proportion of police-reported crimes committed against each sex is unavailable.

In published case law from 2007 to 2020 considering hate as an aggravating factor in sentencing, five cases (eight percent) dealt with hatred towards sex. This is more than double the number of such cases in case law published between the years 1977 and 2006, which considered hatred towards sex in only two cases (four percent).74 In three of the cases for the current study period, the sentencing judge did apply subparagraph 718.2(a)(i) of the Criminal Code and concluded that hatred towards sex was an aggravating factor at sentencing. In the other two cases dealing with hatred towards sex, the sentencing judge did not apply subparagraph 718.2(a)(i) of the Criminal Code. In all five of these cases, where hatred towards sex was considered at sentencing, the hatred was targeted against women.

As noted in the previous report:

Partly as a result of campaigns to address violence against women, in Canada, another one of the sentencing principles that has been established in section 718.2 of the Criminal Code, in sub-section (a)(ii), is that:

(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,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner.75

It is possible that cases where hatred of sex is one of the elements motivating the offender, particularly in cases of domestic abuse, section 718.2(a)(ii) might be employed instead [of] 718.2(a)(i). Supporting this hypothesis is reported case law, where, when the offence was found to be motivated by a hatred towards sex, the victim and offender were either strangers to one another or recent and tenuous acquaintances.

Sexual Orientation

Hate crimes committed on the grounds of sexual orientation have decreased by more than half in comparison with the previous report.76 Between 1977 and 2006, the offender was motivated by hatred on these grounds in 11 published cases (22 percent of published case law dealing with hate as an aggravating factor at sentencing). For the current study period, the offender was motivated by hatred towards sexual orientation in only four cases (seven percent of the case law).

Although the number of police-reported hate crimes committed on the grounds of sexual orientation was greater in 2018 than in 2006 (from 80 in 2006 to 173 in 2018), the actual proportion has decreased, which is consistent with this report’s findings. In 2013, out of all hate crimes reported to police that year, 16 percent were committed on the grounds of sexual orientation.77 Thereafter, that proportion has been decreasing consistently.78 In 2018, police-reported hate crimes committed on the grounds of sexual orientation accounted for 10 percent of police-reported hate crimes; this is the lowest proportion since 2007.79

In the case law published for the current study period, all crimes motivated by hatred of a sexual orientation were targeted against the gay population (100 percent).80 The majority of police-reported hate crimes in 2018 that were committed on the grounds of sexual orientation were committed against the gay and lesbian population (79 percent), but also those who identified (or were perceived to identify) as bisexual (three percent), and as other sexual orientations, such as the asexual and pansexual populations (12 percent).

Disability (mental and physical) and other similar factors

In contrast to the previous report,81 none of the cases dealing with hate as an aggravating factor at sentencing were motivated by hatred towards a person with a mental or physical disability (Table 3). Although not applied clearly, offences motivated by hatred towards a disability (mental or physical) accounted for six percent of published case law (three cases) between the years 1977 and 2006.82 Similarly, only nine police-reported hate crimes in 2018 were listed as being motivated by hatred towards a disability.83

Subparagraph 718.2(a)(i) of the Criminal Code reads that sentencing judges have the discretion to find “other similar factors” as aggravating factors at sentencing. Between 2007 and 2020, the results reveal that hatred towards new identity groups was categorized under the meaning “other similar factors.” Sentencing judges found that offences motivated by hatred towards political beliefs, against police officers, and against homeless people were aggravating factors at sentencing under “other similar factors” of subparagraph 718.2(a)(i). These three aggravating factors were absent from case law considering hate as an aggravating factor at sentencing published between the years 1977 and 2006.84

In R v Mills,85 the sentencing judge considered whether hatred towards an identifiable street gang could fall under “other similar factors” and be considered an aggravating factor at sentencing under subparagraph 718.2(a)(i) of the Criminal Code. However, the sentencing judge concluded that “other similar factors” did not meet the criteria and refused to consider hatred towards an identifiable street gang an aggravating factor under subparagraph 718.2(a)(i) of the Criminal Code.

Offenders/ Group offending

Similar to crime in general, people accused of police-reported hate crimes are mostly younger males. From 2010 to 2018, the median age of people accused of police-reported hate crimes was 26.86 However, the median age of these offenders has been increasing since 2014.87 The median age of police-reported hate crime offenders went from 26 in 2014 to 32 years of age in 2018.88 These numbers are consistent with this report’s findings.

In published case law considering hate an aggravating factor at sentencing, the age of the offender was indicated for 38 out of 48 cases. Within these 38 cases, 27 of the offenders were between the ages of 18 and 35 (71 percent), nine were above the age of 35 (24 percent), and two were youth offenders (five percent). Where the age of the offender was indicated in the reported case law reviewed in this study, the average age of the offender was about 31 years old. This average is significantly higher than the average age of the offenders reported in hate crimes case law published from 1977 to 2006 (24 years of age).89 However, this upwards trajectory is consistent with police-reported hate crime statistics, which also report an increase in the median age of the offenders.90

As for the sex of the offenders, the majority in the published case law reviewed in this study were male offenders (45 out of 48 cases, or 94 percent). In only three cases out of 48 were females the principal perpetrator (six percent). Male offenders also constituted the majority of people accused in police-reported hate crimes (86 percent)91 whereas females made up the minority (14 percent).92

Statistics Canada’s police-recorded statistics do not report the offenders’ identity in a racialized group (i.e., race, colour, ethnicity, or nationality). However, information about the offender’s identity in a racialized group was noted for 36 of the 48 published cases relevant to this study. Offenders identified as White represented the most frequent racialized identity (22 out of 48 cases or 46 percent). In the minority of cases with information on the race of the offender, they are identified as Arab (13 percent), South Asian (eight percent), and Indigenous (six percent). In only one case was the offender identified as Black (two percent), and the remaining 12 cases did not note any racialized identity (25 percent).

As noted in the previous report, it is important to highlight the following note to contextualize the scope of these findings:

[A]s scholars of whiteness studies have noted, an aspect of the systemic racism of North American society is that “White” is considered to be a normative social category that is often not racialized. Thus, one might hypothesize that a large majority of the offenders who were not racialized in the published cases might be considered to belong to the racialized category of White. If the offender in most of the cases where the offender’s racialized identity was not noted were White, then roughly three quarters of offenders in published hate crime cases might belong to the racialized category of White.93

In the published case law addressing hate as an aggravating factor at sentencing, 29 of the 48 cases dealt with offences that were committed by lone offenders (60 percent), and the remaining 19 cases dealt with groups of at least two offenders (40 percent). The findings are quite similar to the findings detailed in the 2009 report where, out of the 48 cases that considered subparagraph 718.2(a)(i) of the Criminal Code or described an element of hate, 27 cases dealt with lone offenders (56 percent) and 21 cases dealt with groups of at least two offenders (44 percent).94

Reasons for considering hate in sentencing

The findings revealed by this research are consistent with those detailed in the 2009 report on hate as an aggravating factor at sentencing, specifically that: “[T]he most commonly discussed sentencing principles were those that parliamentarians established as being the main impetus behind the inclusion of 718.2(a)(i); namely deterrence and denunciation.” As shown in Table 11, specific and general deterrence were the most commonly cited principles related to sentencing (cited 64 times), closely followed by denunciation and retribution, which were cited 45 times.

Further, the findings reveal that after general and specific deterrence, the most commonly cited principles related to sentencing in the case law reviewed for this study were denunciation (cited 40 times), rehabilitation (cited 33 times), proportionality (cited 25 times), and the protection of society (cited 22 times). This is similar to the findings reported in the 2009 report where the most commonly cited principles related to sentencing, after general and specific deterrence, were also denunciation (cited 44 times), and rehabilitation (cited 26 times).95 Conversely, the results report that for the current study period, the least cited principles related to sentencing were accountability (cited three times), parity (cited four times), and reparation (cited four times). As was the case for the previous study period,96 reparation was cited in only four of the cases reviewed for this study, consistently making it one of the least-cited sentencing principles in case law dealing with hate as an aggravating factor at sentencing.

In case law considering hate as an aggravating factor at sentencing, a number of conditions were imposed on the offenders as part of the sentencing judges’ decisions. The most common conditions were the obligation to provide a DNA sample, and the prohibition on possessing weapons, which accounted for 60 percent of all conditions ordered at sentencing. Other common conditions were victim surcharge (7), counselling (7), community service (4), fines (2), or supervised/conditional access to the Internet (2). In the previous report, offenders were ordered to draft an apology letter in five cases; in the current report, no offenders were ordered to draft apology letters.97

In a little over half of the published case law considering hate as an aggravating factor at sentencing, the offender initially pleaded guilty to the accusations (58 percent). Only a few cases noted the offender’s initial plea as being not guilty (eight percent). The remaining cases did not provide information on whether the initial plea from the offender was guilty or not guilty (33 percent). As noted in the previous report: “This may be indicative of a situation where the evidence against the offender was quite clear.”98

Quantum of enhancement

Subparagraph 718.2(a)(i) of the Criminal Code gives trial judges the discretion to decide whether hate should be taken into account as an aggravating factor at sentencing, and to what extent it should increase the severity of a sentence.99 Judges are guided by the decisions of the appellate courts,but are not subject to advisory guidelines on how to exercise their discretion.100 In published case law considering hate an aggravating factor at sentencing, only a few judges detailed how they applied subparagraph 718.2(a)(i) and how that influenced the severity of the sentence. Of the 48 cases dealing with hate as an aggravating sector at sentencing, sentencing judges have applied hate, or subparagraph 718.2(a)(i), as an aggravating factor at sentencing in 32 cases (Table 1). As previously noted, this represents an increase in the percentage of cases that applied hate as an aggravating factor in sentencing (65 percent; Table 1), in comparison with cases published between 1977 and 2006 (60 percent).101 However, in only one case did the sentencing judge detail how they applied subparagraph 718.2(a)(i) as an aggravating factor, and the quantum with which it increased the sentence (three percent) (R v Kandola).102 This is significantly less than in cases published between 1977 and 2006 where seven cases detailed the quantum with which the sentencing judge augmented the sentence on the grounds of hate motivation.103

In R v Kandola, the sentencing judge explicitly stated that the minimum sentence proposed by the defence attorney, five months incarceration for assault causing bodily harm, was demonstrably unfit since the offence was motivated by hatred towards the homosexual population. Therefore, the sentencing judge pronounced a sentence of 17 months incarceration for assault causing bodily harm. The judge justified this sentence by applying subparagraph 718.2(a)(i) of the Criminal Code and by explaining the crucial importance of deterrence in this case to properly deter the Canadian population from committing offences on the grounds of hatred towards a person with a different sexual orientation.104 By increasing the sentence by 12 months, the sentencing judge augmented the quantum of sentence by 71 percent on the grounds that the offender’s hatred towards the homosexual population was an aggravating factor at sentencing. Although the proportions are less, the findings are consistent with the average quantum of enhancement found in sentences that were increased on the grounds of hate motivation between 1977 and 2006 (70 percent).105

The judgment in R v Kandola sets precedent in the determination of whether hatred towards a victim’s sexual orientation should be deemed an aggravating factor at sentencing. In R v Kandola,the sentencing judge considered six factors in determining whether he or she should apply subparagraph 718.2(a)(i) and consider hatred towards the victim’s sexual orientation an aggravating factor at sentencing:

1. anti-homosexual language uttered before, during, or after the offence;
2. whether the offence was committed in a location homosexuals are known to frequent;
3. the lack of provocation;
4. any lack of prior interaction between accused and victim;
5. extreme or disproportionate violence; and
6. the absence of any possible alternative explanation.106

In case law following R v Kandola, the sentencing judge also considered these six factors in determining whether hatred towards a person with a different sexual orientation should be considered an aggravating factor at sentencing. Namely, the sentencing judges in R v Stalker107 and R v Woodward108 followed the six factors established in R v Kandola and found that hatred towards the victim’s sexual orientation was an aggravating factor at sentencing. However, as stated above, neither of the sentencing judges in these cases explained why they increased the amount of the sentence after considering hatred towards the victim’s sexual orientation to be an aggravating factor.

Hate Propaganda and Mischief relating to religious property (sections 318(1), 319(1), 319(2), 430(4.1) of the Criminal Code)

As mentioned earlier, the Criminal Code contains specific provisions for hate propaganda and mischief motivated by hatred relating to certain kinds of property. These criminal offences criminalize specific hate motivated conduct, namely advocating or promoting genocide against an identifiable group (subsection 318(1)), inciting hatred against any identifiable group where such incitement is likely to lead to a breach of the peace (subsection 319(1)), wilfully promoting hatred against any identifiable group (subsection 319(2)), and committing hate-motivated mischief relating to property primarily used for religious worship or certain other kinds of property (subsections 430(4.1) and 430(4.101)). For the purpose of this study, the research focused on cases that considered both subparagraph 718.2(a)(i) and one of the hate propaganda provisions or the hate-motivated mischief provision.

Because these criminal offences are specifically criminalized in the Criminal Code, specific sentence parameters are imposed on each of these offences. Interestingly, although each of these four criminal offences deal with hate in a certain manner, only 14 percent of cases considering subsection 318(1) (one case), 19 percent of cases considering subsection 319(1) (four cases), 24 percent of cases considering subsection 319(2) (11 cases), and 33 percent of cases considering subsection 430(4.1) (one case) have also considered hate an aggravating factor at sentencing (subparagraph 718.2(a)(i) of the Criminal Code).109

Similar to the general case law where subparagraph 718.2(a)(i) was considered at sentencing, young men were the principal perpetrators in the majority of cases where both subparagraph 718.2(a)(i) and a hate propaganda provision were considered. In fact, men were reported as the principal perpetrator in every case where subparagraph 718.2(a)(i) and one of the hate propaganda, or hate-crime mischief provisions, were considered (100 percent). The findings also show that, in the 13 cases where information about the age of the offender is available, eight of the offenders were between the ages of 17 and 35 (62 percent), and the remaining five offenders were over the age of 49 (39 percent).110 Within the 13 cases with information on the age of the offender, the average age of the offender was 38 years of age, which is slightly older than the average age reported in general case law considering subparagraph 718.2(a)(i) of the Criminal Code (31 years of age).

As explained in the previous sections of this report, hate crimes cannot only target individuals as victims, but also communities as a whole. Partly explained by the nature of these four Criminal Code offences, the facts surrounding the offenders’ actions indicated in 93 percent of the cases that they only targeted communities as victims (in 13 of the 14 cases), and in seven of these cases (50 percent of cases that targeted communities) multiple communities were targeted by the offender. The remaining case targeted both communities and individuals as the victims of the crime (five percent) (R v Balaram-Sivaram.)111

Within the six cases that targeted single communities, five were motivated by hatred of a religion (83 percent), and one was motivated by hatred of a race (17 percent). Three of the offences motivated by hatred of a religion targeted the Muslim population and the remaining two targeted the Jewish population. The remaining racially motivated offence targeted the Middle Eastern population. Among the cases where multiple populations were targeted by the offence, eight cases were motivated by religion (100 percent of the cases where multiple populations were targeted), six cases were motivated by race (75 percent of cases where multiple populations were targeted), three cases were motivated by hatred of a sexual orientation (38 percent), one case was motivated by hatred of a national origin (13 percent of cases where multiple populations were targeted), and one case was motivated by hatred of a sex (13 percent112 of cases where multiple populations were targeted). Specifically, among the cases where multiple populations were targeted, the Jewish population was targeted six times, the Black population was targeted five times, the Muslim population was targeted three times, the homosexual population was targeted three times, the Middle Eastern population was targeted once, the Israeli population was targeted once, and women in general were targeted once.

Thus, overall, the Jewish population was targeted the most (ten of the 14 cases; 71 percent of the cases), followed by the Muslim population (six of the 14 cases; 43 percent of the cases), and the Black community (five of the 14 cases; 36 percent of the cases).113 These findings are consistent with the most common grounds of victimization recorded in case law considering hate an aggravating factor at sentencing, as well as to police-recorded hate crimes statistics presented in the Grounds of Victimization section of this report.

Where judges gave consideration to both section 319(1) (incitement of hatred in a public place against an identifiable group that is likely to lead to a breach of the peace) and subparagraph 718.2(a)(i) of the Criminal Code, half of the cases dealt with offenders writing hateful messages in public places (two of the four cases; 50 percent). The remaining two cases were for offenders inciting hatred through the distribution of hateful pamphlets (one case), and for explicitly stating hateful comments in a private conversation.114 Although judges pronounced a guilty verdict in two of the four cases where subparagraph 718.2(a)(i) was considered alongside section 319(1) of the Criminal Code, the judges only applied subparagraph 718.2(a)(i) in one of these cases. In this decision,115 the offender’s anti-Muslim pamphlets demonstrated prejudice and intolerance of the Muslim population, which ultimately led the judge to apply subparagraph 718.2(a)(i) of the Criminal Code. However, even though the sentencing judge gave “substantive weight” to this aggravating factor, they did not explain the amount by which subparagraph 718.2(a)(i) affected the severity of the sentence.116

In cases where both subsection 319(2) (wilful promotion of hatred against an identifiable group) and subparagraph 718.2(a)(i) of the Criminal Code were considered, the offences were mostly cases where the offender published hateful comments towards an identifiable group on the web, or administered websites where hateful comments directed against an identifiable group were published (six of the 11 cases; 55 percent). The remaining four cases were for writing hateful messages in public places (two cases), for expressing racist comments publicly (one case), or for holding racist comments in a private conversation (one case).117 Within the 11 cases where subsection 319(2) and subparagraph 718.2(a)(i) were both considered, subparagraph 718.2(a)(i) was applied in nine of these of cases (82 percent). Interestingly, the only two cases where subparagraph 718.2(a)(i) was considered without being applied alongside subsection 319(2) were cases where the judge acquitted the offender of the charges laid under subsection 319(2) of the Criminal Code. Further, only three of the nine cases where subparagraph 718.2(a)(i) and subsection 319(2) were applied have information on the effect of hate as an aggravating factor at sentencing (33 percent). In these three cases, the judge rejected the possibility of a conditional sentence and concluded that, because the offence was motivated by hatred against a group identified in subparagraph 718.2(a)(i) of the Criminal Code, the appropriate sentence was one of imprisonment.

The decision in R. v. Balaram-Sivaram118 is the only case where subsection 318(1) (advocating or promoting genocide against an identifiable group) is considered alongside subparagraph 718.2(a)(i) of the Criminal Code. In this decision, the offender sent emails to multiple individuals and organizations, and used social media with “the specific intent to commit genocide and intended to advocate genocide against an identifiable group listed in subsection 318(4) of the Criminal Code, distinguished by race, religion, ethnic origin or sexual orientation. These communications are replete with words advocating in various iterations, the death of Jews, people from the State of Israel and homosexuals.”119 The judge concluded that the offender advocated genocide against several identifiable groups and sentenced the offender, applying hate as an aggravating factor, to three years of imprisonment. Although the judge recognized the application of subparagraph 718.2(a)(i) and hate as an aggravating factor at sentencing, they did not provide information on the quantum by which subparagraph 718.2(a)(i) influenced the sentence.

Section 430(4.1) of the Criminal Code (mischief relating to property primarily used for religious worship, before the subsection was expanded to include certain other kinds of property) was only considered alongside subparagraph 718.2(a)(i) in R v Ghaffari.120 In this case, the offender interrupted a religious service during the holy month of Ramadan and screamed obscenities at the attendees. The judge did not apply subparagraph 718.2(a)(i) of the Criminal Code and justified his decision by stating that subsection 430(4.1) incorporated the aggravating circumstances surrounding the religious hatred that accompanies mischief relating to religious property in the offence itself. Thus, the judge noted that an appropriate sentence for an offender guilty of breaching subsection 430(4.1) generally requires a custodial sentence. However, although the judge recognized that the offender committed mischief in the course of a religious service by shaming Islam, the judge concluded that the offender’s actions were motivated by anger at his mother’s death and found the offender not guilty.

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