I’ve heard the term “hate crime” bandied about in regards to certain presidents and – closer to home – racist posters, but realized I had no idea what, exactly, a hate crime is. I had assumed that a hate crime – in my uninitiated opinion – is a crime motivated by some form of bias, be it sexual, racial, religious, and so on. Even so, I asked myself, what exactly constitutes a hate crime? And I didn’t have an answer.

To find an answer to this question I decided to ask around the University of Calgary’s faculty of law and see if someone could explain what makes a hate crime different from other crimes. Professor Erin Shelly, an assistant professor specializing in criminal law, was gracious enough to sit down with me and explain this law in language my non-litigious self could understand.

I was surprised to discover that what constitutes a hate crime is not well-defined in Canada’s criminal code. Professor Shelly explained that there are two types of hate crimes: section 318 of the criminal code deals specifically with acts of genocide, and section 319 deals with anyone who “incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace.” [i]

It seems to me that it would be obvious if someone has committed an act of genocide, but the ambiguous wording of section 319 is open to interpretation. Per Professor Shelly, anything that incites hate towards an identifiable group can be prosecuted as a hate crime. For example, do you remember the lovely posters some cowardly racist had plastered around the University of Calgary campus? Those posters were, broadly speaking, a hate crime.

Professor Shelly explained that in many cases there simply aren’t the prosecutorial resources in place to charge and convict people under section 319. And, this lack of resources stems from the difficulty in proving the accused’s intent to incite hate. In other words, to find someone guilty of a hate crime the crown must prove there was intent to cause harm – physical or otherwise – to an identifiable group.

The fact that so much of what constitutes a hate crime is left in the hands of prosecutors is disturbing; no one should be able to say “that’s too hard, I’m not doing it” when faced with a difficult task at work. Conversely, it is not the fault of prosecutors that hate crime legislation is so broadly defined. For example, from a purely litigious standpoint, a preacher yelling “God hates homosexuals, and you should too!” is guilty of a hate crime.

This brings me to the fundamental problem I have with hate crime laws: the potential to silence free speech. Per Professor Shelly, Canada’s hate crime law would be considered unconstitutional in the United States. And, while now is probably not the time to idolize the American justice system, I can see how proponents of free speech could be concerned with the latitude prosecutors have when interpreting Canada’s hate crime laws. Specifically, if someone can be prosecuted for their opinion, no matter how radical or uninformed, the net-effect is a silencing of someone’s free speech. The broad definition of this law allows almost any negative act against an identifiable group to be interpreted as “inciting hate”, thus this law is left open to abuse.

And, while I don’t agree with the message contained in the recent posters of hate, I also don’t believe people with radical opinions should face jail time. I think it’s fair to say, within certain limits, that people should be free to express whatever they want to express. Furthermore, I believe this freedom is a fundamental aspect of what makes a free and just society free and just. If someone wants to hate someone because of their membership to an identifiable group, that’s fine; if they start recruiting people to join them in genocide or declaring an intention to commit a violent act, that’s a crime – not a hate crime, a regular crime already covered by Canada’s criminal code.

We already have laws to prevent people from hurting, making threats to hurt, inciting others to violence and inciting others to murder. Why do we need special laws that only serve to prosecute intentions? The simple fact is, we probably don’t. And, though there have been a few cases where an individual has been charged with a hate crime, of the two cases I could find, one was dismissed outright and the other was overturned at appeal. I couldn’t find a single case where someone was convicted under section 318 of the criminal code.

In conclusion, the nature of crimes against the body – crimes that affect people – is fundamentally hateful. All crimes that intentionally cause harm to another person are crimes motivated – to some degree – by hate. Moreover, crimes committed as a direct result of hate or bias are already subject to more stringent sentences under existing law, hate crime legislation notwithstanding. If acts of hate are already subject to stiffer penalties, why do we need a law that only serves to silence free speech? I’m glad I decided to look into this, hate crime law is a lot more complicated than I had assumed.

[i] http://laws-lois.justice.gc.ca/eng/acts/C-46/page-72.html?txthl=318#s-319