The difficult history of prosecuting hate in Canada

Warning: This story contains some disturbing details.

Late one night in April 2015, a drunk man entered a convenience store in the town of Hinton, Alta., and told the person behind the till he didn't want to be served by a Black woman.

Riley Bryn McDonald used the n-word. He asked for the manager. He then picked up a cup of hot nacho cheese sauce and threw it in the clerk'sface.

The sauce stung her eyes and dripped across her face, hair and upper body. McDonald told her she should "go back to Somalia." Then he walked out.

The case was not widely reported, but a record of McDonald's sentencing turns up in the Canadian Legal Information Institute database, which keeps track of court judgments from across the country.

The past weeks have seen a focus on the racismthat is a reality of life for Canada's visible minorities. There has been a spike in attacks against Asian-Canadians amid the spread of the coronavirus, which was first identified in China.

Meanwhile, the death of George Floyd in Minneapolis has shone a light on police brutality against Black and Indigenous people in Canada. Prime Minister Justin Trudeau has even acknowledged systemic racism.

Given that backdrop, McDonald's caseprovides an insight intoracist offencesin this country and the complexity of prosecuting them. No province is immune.

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The Criminal Code contains provisions for hate crimesbut they're largely reserved for offences involving hate propaganda or the promotion or advocacy of genocide. McDonald was originally charged under one of those sections, but the charge was stayed and the Crown proceeded to treat the offence as a hate-motivated assault instead.

That's how the majority of crimes involving racism are prosecuted in Canada as regular offences under the Criminal Code, with bias, prejudice or hate considered aggravating factors for sentencing.

Canadians have been grappling with the question of how the law should tackle hatred for more than half a century. If the courts are any indication, they've yet to come up with a consistent answer.

"There's a lot of issues as to how seriously our criminal justice system sees hate crimes," said Avvy Go, director of the Chinese and Southeast Asian Legal Clinicin Toronto. "What is even more disheartening right now is that a lot of these cases are not even investigated as hate crimes."

Attacked for 'wearing a scarf around her head'

Some incidents have resulted in jail time. Some haven't.

Judges have often expressed outrage at the offences, and some have called on lawyers to craft suggestions for sentencing that can both make amends to the community and produce some kind of change in an offender.

McDonald blamed alcohol for his outburst and claimed he was embarrassed by his actions. Defendants usually try to offset punishment in criminal offences through mitigating circumstances, which largely amount to excuses for their behaviour.

Is incarceration the way to stamp out the type of behaviour that politicians and the public frequently denounce?At the very least, experts say judges, prosecutors and police need to be on the same page when it comes to the seriousness of hate-motivated crimes.

In a 2012 caseused as a precedent to sentence McDonald, a Nova Scotia judge insisteda 51-year-old grandmother with a clean record spend time behind bars for attacking, insulting andshoving a woman of Pakistani heritage at a mall "for no reason other than wearing a scarf around her head."

"We do not ask or require that every Canadian be the same, whether you are from Newfoundland, Nunavut, British Columbiaor any place in between,"Pictou Supreme Court Justice Ted Scanlon told the offender,Katherine Feltmate.

"A Canadianis a Canadianis a Canadian no matter what their vintage, religion or attire," he said, sentencing her to 60 days in jail.

Despite thisprecedent, Riley Bryn McDonald spentno time in jail.

'Hate is as old as man'

Calls for legislative action to deal with hate date back to Nazi propaganda seeping into Canadian society in the build-up to the Second World War. Concerns heightened in the 1950sand '60s with the emergence of extreme right-wing groups and the widespread distribution of hate literature, most notably in Ontario and Quebec.

In 1965, the Special Committee on Hate Propaganda tabled a report that would give birth to Canada's hate crimes legislation. The committee was chaired by Judge Maxwell Cohen and included Pierre Elliot Trudeau, then a university law professor. Trudeau was prime minister when the amendments to the Criminal Code were passed into legislation in 1970.

As Cohen noted in an essayreflecting on his commission's work, the enactment of the hate laws sparked fierce debate.The tensions he described have dogged the prosecution of hatred ever since.

"On the one hand, there was a new emphasis on individual freedom," he said. "On the other side, there was a growing recognition that these very liberties could be dangerously abused."

The preface to the 1965 report warns,"Hate is as old as man and doubtless as durable."It also contains a warning that couldas easily refer to the current spread of anti-Asian slurs through social mediaasthe anti-Semitic pamphlets and slogans that emerged in Cohen's day.

Ours is "a world aware of the perils of falsehood disguised as fact and of conspirators eroding the community's integrity through pretending that conspiracies from elsewhere now justify verbal assaults," Cohen wrote. He called them"the non-facts and the non-truths of prejudice and slander."

'A tough thing for a lot of people to hear'

According to Statistics Canada, Canadian police reported 1,798 criminal incidents motivated by hate in 2018, the second-highest number in a decade. Only 31 per cent of those crimes were solved, and of those, 68 per cent resulted in charges against one or more individuals.

Section 318 of the Criminal Code deals with promoting and advocating genocide, whereas Section 319 concerns the public incitement of hatred.

On its face, Section 319(2), the section Riley Bryn McDonald was originally charged under, says that "every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty" of an offence.

But RCMP Const. Anthony Statham, one of two members of B.C.'s hate crime team, says those charges are generally used in situations where offenders are inciting others through speech and propaganda to act in a way that might breach the peace.Charge approvalalso requires a sign-off from the provincial attorney general.

Instead, most acts people might think of as "hate crimes" are charged as regular offences under the Criminal Code like assault, uttering threats or harassment.

But Section 718 of the code requiresjudges to consider anenhanced sentence based on evidence an 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 similar factor."

Statham and his partner work the rare cases that involve Sections 318 and 319, but they also assist police around B.C. in dealing with other offences where hatred plays a part.

He said the complexity of the law can make it seem as though people can "get away" with hurling racial epithets at strangers on the street.

Stathamsaidthe majority ofcases are what police would term"hate incidents" they may be offensive, hurtful and harmful to the community, but manyare non-criminal.

"Using a racist slur is typically something that's protected as a form of freedom of expression," Statham said. "Which is a tough thing for a lot of people to hear."

Fightto have offence recognized as hate-motivated

But many hateful incidents go far beyond offensive language.

In 2010, the Chinese and Southeast Asian Legal Clinic (CSALC) in Torontohelped victims prepare for the prosecution of Trevor Middleton,who was charged with aggravated assault after he and otherspushed Asian anglers into the water near MossingtonPark Bridge off Lake Simcoe.

A scuffle ensued between members of the two groups, and one of Middleton's friends was badly beaten. When the anglers drove off, Middleton chased them in hispickup truck, ramming their car repeatedly until it crashed into a tree. The driver of the car who was not Asiansuffered brain damage.

CSALC director Avvy Go saidher clinic pushed to have the offence recognized as a hate crime and they helped the community prepare a victim impact statement. The victims told Go's organization the incident had changed the way they lived, violating their sense of safety and security.

"This crime is an extreme manifestation of the all too common sentiment that Asians are not 'real' Canadians," said the victim impact statement said, which was provided to CBC. "We are made to feel like we are intruders and outsiders who can be assaulted at random simply because of what we are, and not what we do."

The Crown wanted eight to 10 years,but Middleton got two years less a day. Go said the community was outraged.

"From our point of view, the criminal justice systemas a wholeis not taking these crimes seriously," said Go.

'Nothing will be done if they don't report'

Toronto-based researcher Abbee Corb works with police forces across Canada, teaching officers how to investigate hate crime and speak with victims.

She says hate crimes are vastly underreported, and thatmany victims are wary of speaking to police because they come from backgrounds where police are part of the issue. The result is a circular problem.

"People don't report because they don't think anything's going to be done," saidCorb. "And nothing will be done if they don't report it."

Corbthinks more emphasis should be placed on recognizing hate crimes and speaking with victims as part of regular police training. She also saidpolice need to build bridges to minority communities to build trust and solicit help in investigations.

Caught on video

The ubiquityof cellphone cameras has contributed to a growing awareness around racist attacks as victims and bystanders capture offenders on video. While Charter protections around freedom of expressionmean many of those incidents don't rise to the level of a crime, there are exceptions.

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Some judges have acknowledged that constant video recordingputs an onus on everyone to take the problem of hate-motivated crime more seriously.

In 2017,Karry Vernon Corbett was caught on video shouting racially charged insults at an Indo-Canadian lawyer, who had turned his camera on Corbett after seeing him yellat a 72-year-old parking officer.

Corbett was charged with what's known as a "no touch" assault a provision of the law that has particular relevance to the aggressive behaviour that victims of hate crimes experience.

The presiding judge noted that the Criminal Code definition of assault includes when a person "'attempts or threatens, by an act or gesture, to apply force to another person' and that other person reasonably believes that the accused has the ability to complete the act."

The Crown and the defence came to court with a joint submission that saw Corbett avoid jail time through a two-month conditional sentence.

Judge Kenneth Skilnick accepted the proposition reluctantly. He said he hoped that in the future, the sentence to asimilar case mightinvolve the offender making amends to the community in question and perhaps be ordered to enter into some kind of "victim-offender reconciliation process."

According to Skilnick'sjudgment, Corbett argued he hadn't intended to "publicize his racially offensive outburst so prominently" and he didn't think the publicity it received should be held against him.

Skilnickdidn't agree.

"We live in an age where almost everyone has a cellphone and almost every cellphone has the capacity to video-record conduct. In addition to the moral responsibility for all of us to treat our fellow citizens with respect, the ubiquitous nature of video-recording is an additional reason for people to conduct themselves properly and lawfully in public.

"Now, more than ever, the rest of the world is watching what we all do."