4 min

Aaron’s law

Space matters in hate crimes sentencing

Credit: Jacques Gaudet

Statistics Canadamay have noted a decrease in the severity of crimes across the country, but the trend apparently hasn’t reached Vancouver’s gay community which has witnessed at least 10 gaybashings in the past 12 months.

The most frustrating aspect of the battle to prevent hate is the apparent unwillingness of BC’s Crown counsel to prosecute gaybashings as hate crimes.

Although there have been five gaybashing trials in the last eight years, only once has the Crown sought a hate crime designation at sentencing, despite each crime’s obvious anti-gay elements.

Part of the difficulty is that the designation is based on evidence of hate motivation.

Under the current sentencing provision, once an accused has been found guilty of a violent primary offence, the penalty may be increased if it can be proven that the offence was motivated by homophobia.

As Section 718.2 of the Criminal Code of Canada states: “A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender” including “evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.”

The problem is that bias, prejudice or hate must be proven beyond a reasonable doubt, and this is very difficult to do when it comes to such a deep psychological state.

In the absence of explicit evidence of hate motivation — such as the enunciation of anti-gay slurs during the commission of the offence — the Crown generally shies away from calling an offence a hate crime.

But hatred can be discerned in a variety of ways. It shouldn’t have to rely on proving motivation.

By adopting the judicial principle of making sentencing responsive to the community, a court can turn its analysis from the attacker’s motivation to the geographies of the offence — and thereby more readily infer hate and contemplate its effects.

Just because a gaybasher isn’t explicitly calling somebody a faggot as he kicks him in the head on Davie St doesn’t mean that hate is not present, or that the attack won’t have a negative impact on the gay community.

I believe the “place” of hate should be interrogated more thoroughly at sentencing.

In other words, the scene of the crime can be indicative of whether bias was a factor in its commission and who is likely to suffer as a result.

If a person is attacked outside a synagogue or mosque, for example, it’s more likely she was the target of anti-Semitic or anti-Muslim hate.

What if a gay man is attacked outside a gay bookstore or walking hand-in-hand with another man in the gay village? Or near the gay cruising trails of a park?

Is it not more likely that he was the target of homophobic violence?

Now think about space more as a social practice than a specific environment, where group identity is spontaneously performed in spaces ostensibly distant from a community’s turf, such as an orthodox Jewish family praying in an airport.

When violence occurs in such scenarios, the Crown should present the setting and surrounding circumstances as evidence of the manifestation of hate in the commission of the offence. As it should have done in the killing of Aaron Webster in Stanley Park in 2001.

The nearly naked Webster was brutally beaten and left to die near the entrance to the park’s gay cruising trails. The Crown never sought a hate crime designation.

The Crown’s reluctance to consider anything but the most blatant evidence of hate motivation has undermined public trust in its use of the hate crime designation.

The gay community has long recognized homophobia both as a cause and an effect of attacks in traditional gay spaces — and is anxious for the Crown to recognize the same.

In order to better meet the principles of sentencing and the public’s expectation for justice, Canada’s hate crimes sentencing provision should be expanded from its current emphasis on proving bias against a particular group based solely upon explicit evidence of motivation, to also take into account the geographical circumstances surrounding the commission of an offence and its repercussions on the targeted community.

Legal scholars Julian Roberts and Andrew Hastings were early critics of the limitations of Canada’s motivation-centred sentencing provision.

They cited precedents from the United Kingdom as illustrations of a better law. For example, in Scotland, the Criminal Law (Consolidation) Act, Section 50 considers a crime to have been “aggravated” where bias is evidenced either in the motivation or in the commission of an offence.

While the Crown must still prove aggravation beyond a reasonable doubt, proving that bias was an element is broadened to include a test for hate-based hostility during or immediately before or after the commission of the offence.

The section calls for the court to look upon the offence in its contextual entirety from the perspective of a reasonable person, thus better capturing the nature of the offence — and how it diffuses hate into spaces distant from the crime scene — than a provision which merely looks to motivation.

It offers a new way to assess hate and prove homophobia, one based on the context and community impact of the crime as opposed to a deep psychological state that is inherently difficult to prove.

While efforts to educate Canadians about sexuality and difference are undoubtedly the most important step toward curbing homophobic violence in the long run, the ineffectiveness of Canada’s current sentencing law suggests that it be amended in the interim.

Failing to amend the law misses an important opportunity to name homophobic violence, punish it specifically and acknowledge its effects on the gay community.