5.0 Conclusion

We conducted this study to discern trends in the application of subparagraph 718.2(a)(i) of the Criminal Code and hate as an aggravating factor at sentencing. To do so, we considered three main research questions: how many cases were reported between 2007 and 2020 where subparagraph 718.2(a)(i) has been considered and what the specifics surrounding these offences were, what the court’s reasoning/rationale for the application of hate as aggravating factor was, and whether there were any discernible trends in sentencing as a result of the application of hate as an aggravating factor at sentencing.

To answer these three main research questions, the same methodology was used in this study as in an earlier 2009 study by Lawrence et al. Canadian jurisprudence was reviewed to find cases where subparagraph 718.2(a)(i) of the Criminal Code or hate as an aggravating factor at sentencing were considered by Canadian courts. A total of 1,388 cases were reviewed for relevance. Out of that total sample, 1,297 cases were discarded due to hate, or subparagraph 718.2 of the Criminal Code,being absent from the sentencing judge’s consideration. Thus, a total of 48 cases were relevant to this study where the sentencing judge discussed or considered subparagraph 718.2(a)(i) in his or her decision.

This study showed that where judges considered subparagraph 718.2(a)(i) of the Criminal Code, the majority of them applied the section and found hatred against an identifiable group an aggravating factor at sentencing. In only a minority of cases did judges consider, or discuss, subparagraph 718.2(a)(i) of the Criminal Code without applying the section.

Further, this research demonstrated that in the case law reviewed for this study, the majority of offences were for violent and generally serious crimes. Notably, assault (level 1, 2, and 3), first degree murder, and manslaughter were among the more frequent hate crime offences. Male victims constituted a little over two-thirds of hate crime victims recorded in the reviewed case law, and female victims accounted for the remaining third. Interestingly, this study showed that although individual victims were targeted in half of the cases reviewed for this study, and that whole communities were targeted in a third of the cases, victim impact statements were filed in less than a third of the cases and community impact statements were only filed in a single case.

In both police-reported hate crime statistics and case law considering hate an aggravating factor at sentencing, the most frequent grounds of victimization were race, nationality, ethnicity, and religion. This study revealed that the Arab and the Black communities were the most targeted identity groups among racially motivated hate crimes, findings consistent with police-reported hate crimes statistics in 2018. Among religiously motivated hate crimes, the case law showed that religious victimization mostly targeted the Muslim population, followed by a small percentage that targeted the Jewish population. The Muslim and Jewish communities were the only two religious communities targeted by religiously motivated hate crimes in the case law we reviewed for this study.

Similar findings were obtained for cases considering both subparagraph 718.2(a)(i) of the Criminal Code, and the hate propaganda, or hate-crime mischief relating to religious and certain other property provisions. In cases where both subparagraph 718.2(a)(i) of the Criminal Code and the hate propaganda, or hate-crime mischief relating to religious property were considered, the Jewish population was the most targeted identity group, closely followed by the Muslim, and the Black communities. Furthermore, this study showed a new trend in the way judges have applied subparagraph 718.2(a)(i) on the grounds of religious hatred, namely that they have considered religion as an aggravating factor in crimes committed under religiously motivated violent extremist ideologies (considered in nearly half of the cases dealing with religious victimization).

As with police-reported hate crime statistics between 2010 and 2018 and crime in general, this study showed that the majority of hate crimes recorded in published case law were committed by younger males. Notably, offenders were between the ages of 18 and 35 in nearly three-quarters of the cases; the average age of offenders was 31. Further, in 94 percent of the cases reviewed for this study the offenders were males, leaving only six percent of cases committed by female offenders. These statistics are consistent with police-reported hate crime statistics. Within the cases where the race of the offender was known, hate crime offenders were most frequently identified as White, whereas in the remaining minority of cases the offenders were identified as Arab (13 percent), South Asian (eight percent), and Indigenous (six percent). In only one case was the offender identified as Black (2 percent). The case law reviewed for this study also demonstrated that hate crimes were more frequently committed by lone offenders (60 percent), rather than groups of offenders (40 percent).

Consistent with the findings presented in the 2009 report and similar to police-reported hate-crime statistics for 2018, hate crimes were rarely committed on the grounds of age, language, and disability. Hate crimes committed on the grounds of sex and sexual orientation were also reported. In all cases where crimes were motivated by hatred towards sex, the offender was motivated by hatred towards females. Similarly, in all of the cases dealing with crimes motivated by hatred towards a sexual orientation, the offender targeted members of the gay population.

The findings also showed that when sentencing judges applied subparagraph 718.2(a)(i) of the Criminal Code, they frequently did so alongside the sentencing principles of general and specific deterrence, as well as denunciation. Although in the majority of cases where subparagraph 718.2(a)(i) was considered, the sentencing judge opted to apply hate as an aggravating factor at sentencing, only one case detailed the quantum applied. Thus, as was reported in the 2009 report, subparagraph 718.2(a)(i) remains a rarely-used provision and it is apparent that details regarding the quantum of sentence that follow the application of subparagraph 718.2(a)(i) remain infrequent in case law considering hate as an aggravating factor at sentencing.

In short, this study painted a portrait of the application of hate as an aggravating factor at sentencing, specifically regarding the application of subparagraph 718.2(a)(i) of the Criminal Code. This study also presented the characteristics and specificities surrounding hate crime offences, the victims, and the offenders recorded in case law published between 2007 and 2020. Although the proportions are smaller, the findings of this study are generally consistent with those presented in the 2009 report, and to those recorded in police-reported hate crimes statistics in 2018.

Many additional research questions remain to be explored. For example, the many cases of racially motivated crimes against Indigenous people, so prevalent in the case law, is an avenue that would benefit from additional research. It would also be valuable to explore the reasons behind the shortage of details regarding the quantum by which the application of subparagraph 718.2(a)(i) enhances a sentence.