4 min

What makes a hate crime

Legal changes needed to protect gays and lesbians

In early December of last year the gay community was gripped by fear when the body of 34-year-old Christopher Raynsford was found brutally murdered in his Lisgar St apartment.

It didn’t take long before speculation ran rampant in the community that the murder was a hate crime. As a result of those concerns the Ottawa Police Hate Crimes unit was called in to assist in the investigation. Only after an exhaustive investigation was it determined that Chris’s death was not hate-motivated.

So what exactly is meant by a hate crime? How do police make that determination and why do we quickly jump to the conclusion that most crimes against gays and lesbians are hate crimes?

To begin with, a hate crime is not a specific offence. While advocating genocide or public incitements of hatred are both criminal code offences, hate crime is not specific. There are varying definitions of what a hate crime is, depending upon what region or province you live in.

There is currently no federal hate crime legislation that protects members of the gay and lesbian community. Section 718.2 of the Canadian criminal code does recognize sexual orientation in sentencing procedures but gays and lesbians are not listed as an identifiable group.

The Ottawa Police Department uses the Ontario Police Standards definition, which is “an offence committed against a person or property which is motivated by hate/bias or prejudice based on race, national or ethnic origin, language, color, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.”

What sets hate crimes apart from other offences is the motivating factor behind it. It’s also important to make the distinction clear that the matter must be a criminal offence.

“We frequently get complaints where a person feels that he or she has been discriminated against on the basis of the definition, but if the matter is not criminal in nature, it becomes a matter for the Ontario or Canadian Human Rights Commissions,” says Detective Will Hinterberger of the Hate Crimes Section.

“The key difference is that a hate crime attacks the essence of a person, it attacks who a person is rather than something that person has done. Because of this, a hate crime doesn’t just happen to the victim, it affects the entire community that the victim belongs to.”

What determines whether a crime is hate-motivated or not?

According to Detective Hinterberger, for police to make that determination they have to examine the relationship between the crime scene, the victim and the offender.

“Was there a relationship between the victim and the offender, did they both belong to different communities, was the victim part of a targeted group, were bias-related objects, items or symbols used or left at the crime scene? These are some of the specific things we look for when we conduct our investigation,” he says.

There is no community more aware of what hate crime is then the gay and lesbian community. However, studies show that the reluctance by members of the community to report these crimes is higher than any other targeted group.

Bruce Bursey, of Pink Triangle Services, says he thinks one of the main reasons these numbers are higher is the fear of being outed.

“When you report it to the police, it becomes part of the public record and you have lost some control of your ability to become anonymous. That is an important decision in the process that a person has to face, and for some people it’s not worth it.”

Bursey adds that some victims still don’t trust police. “I certainly know people who have been victims and I know people who have reported and people who haven’t. I supported both in their situation because for them they were making the right choice.”

No national statistics on hate crimes against the GLBT community have been collected. The only data available comes from police reports, statistics from community groups like Toronto’s 519 Church Street Community Center or victimization surveys.

Since 1993 the Ottawa Police Department has had in place procedures on how to deal with hate crime. The department’s Hate Crime Section has created a database that contains all available information about a reported incident from location to the type of offence to an offender’s sentencing.

Derek Janhevich is with Statistics Canada and has prepared two hate crime reports for the Canadian Center for Justice Statistics. He says hate-motivated crimes have been in existence for centuries, but only now have they become a phenomenon in the criminal justice system.

“Since Sep 11, it has become evident that more attention has been directed towards hate crime, and as in past events with media attention to such cases as Aaron Webster and Mathew Shepard, it has become a hotter topic,” he says.

Janhevich says reliable information is needed to assess the magnitude of the problem and how best to combat it. “We do need more data in this area to understand what’s going on. Prevention programs are always based on quality research but we need national figures to substantiate why programs should be there.”

Because of this lack of information it is difficult to break down the motivation for hate crime. In a 1999 survey of reported cases, 43 percent of hate crimes were based on race or ethnicity, while 37 percent were labeled as other, which included language, age, sexual orientation or disability. Sex and culture completed the list. However, as indicated earlier, the highest number of unreported cases comes from the gay and lesbian communities. In the United States sexual orientation is the third highest category of hate crime reported to the FBI.

NDP MP Svend Robinson has introduced a private member’s bill that will add sexual orientation to Canada’s hate crime laws. The bill is currently with a Commons Justice Committee but could be sent back to the House of Commons any day. Robinson says the government has to begin taking this matter seriously.

“In the wake of the murder of Aaron Webster it’s more urgent than ever for the federal government to end the shameful exclusion of gay and lesbian people from hate propaganda legislation.”