When does a crime become a hate crime?

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Hate-motivated crimes are on the rise in Peel, but how many and what kinds of crimes fall under the banner of “hate crime”?

The short answer is not very many. The long answer is much more complicated. 

“I think a lot of people just think everything is a hate crime, but in fact, there are only two or three specific hate crime charges (under the criminal code),” said Feras Ismail, lead officer with Peel Police Equity and Inclusion Bureau, the unit that investigates the region's hate-motivated crimes.

The three charges under Canada’s criminal code Ismail is referring to are called “hate propaganda offences” and include: Advocating genocide, public incitement of hatred, and wilful promotion of hatred.

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Under the criminal code, advocating genocide refers to the promotion of killing members of an identifiable group.

Public incitement of hate is defined as “Every one (sic) who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace.” 

And lastly, the code characterizes wilful promotion of hatred as “Every one (sic) who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group.”

“All of those three main (charges) do need the ministry of the attorney general’s consent to lay those charges. So, those are a bit more advanced,” explained Ismail. “They don’t happen as frequently, but they are certainly there in the criminal code.”

More frequent hate-motivated crimes handled by police such as graffiti and assault don’t carry any special charges under the criminal code. 

Instead, a hate-motivated assault, for example, is no different in the standard legal sense and handled the same way as a regular assault charge until a conviction is handed down. This is where, according to Ismail, the distinction between “hate crime” and “hate-motivated crime” becomes important.

“When we talk about educating the public on this whole idea of hate-motivated crimes, hate and biased crimes, or hate-biased and motivated incidents, aside from those three main hate-propaganda offences … the majority of (hate-motivated crimes) in fact were regular criminality,” he said.

“(Hate motivations) are considered as aggravating factors. So, they don’t in fact change the nature of the crime itself. The investigative process is the same, all of the information of the facts and issues of the crime are tabulated and investigated in the same way."

If an offence is deemed to be motivated by hate, that will be a factor considered at the time of sentencing, Ismail explained.

Complicating matters further, determining hate as a motive in most crimes isn’t cut and dry. 

In some cases, like with graffiti, the simple inclusion of a swastika or racial slur is enough to meet that threshold, regardless of the nature of the property being vandalized. 

On the other hand, proving hate as a motivation in other types of crimes can be much more difficult. This is compounded by the fact that simply being racist or making racist statements aren’t criminal offences in and of themselves. 

“We live in a country where you have the freedom to express yourself. We live in a country where racial slurs against somebody are not a criminal offence, you have the right to express that,” Ismail said, adding it can be difficult to draw the line between freedom of expression and hate.

“I don’t think anybody’s ever been able to clearly define what that threshold is. If you take a look at the criminal code and the wording of it, there are certain thresholds that need to be met ... There is a subjective element to it,” he said, noting even seemingly similar cases must be evaluated individually and in depth.

According to Peel Police’s annual hate-motivated crimes report issued in March, the number of hate-motivated crimes reported increased by 168 per cent last year, from 59 in 2016 to 158 in 2017. 

Of those, 15 were classified wilful promotion of hatred. Thirteen threats, 13 assaults, and five assault with weapon charges were also deemed hate motivated by investigators last year. Mischief (all graffiti) accounted for 106 instances, or 67.1 per cent of all reported hate-motivated crimes in 2017, but police believe two suspects were responsible for at least 64 of those incidents. 

Religion was the most-targeted segment with 76 offences, followed by race/national origin with 39 crimes. Sexual orientation was third with eight. Muslims were the most-targeted religious group, accounting for 76 crimes, up from five in 2016. The Jewish faith was targeted 36 times last year compared to 23 the previous year.

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