Contents

 

Summary of EGALE Submissions

About EGALE

How prevalent are hate crimes on the ground of sexual orientation?

Some examples of crimes motivated by hatred based on sexual orientation

Incidence of violence against lesbians, gays and bisexuals

Why have increased penalties for hate crimes?

Consistency in existing Judicial Practice

Hate crimes have a more serious impact upon the victim

Hate crimes affect not only the direct victim, but all members of the targeted group

Hate crimes laws necessary to educate and set acceptable standards of behaviour

Should sexual orientation be defined?

Should the whole list of grounds be eliminated?

The amendment is not about “special rights”

Support for recognition of hate crimes against women

Expansion of definition of “identifiable groups” in s.318(4)

Conclusion

 

“The Liberal Party is opposed to hate crimes of any kind and would most definitely take steps to ensure that just as discrimination on the basis of sexual orientation is outlawed, so too would hate crimes based on sexual orientation be outlawed.”
—The Rt. Hon. Jean Chrétien

 

Prime Minister of Canada
Response to EGALE questionnaire, 1993

 

1. Summary of EGALE Submissions
EGALE strongly endorses the enactment of section 718.2 in Bill C-41, which provides:
(i) evidence that the offence was motivated by bias, prejudice or hate based on the race, nationality, colour, religion, sex, age, mental or physical disability or sexual orientation of the victim, … shall be deemed to be aggravating circumstances.”

Lesbians, gays and bisexuals are subject to hatred, persecution and violence in Canadian society. This calculated and deliberate violence against a segment of the Canadian population is unacceptable and deserving of increased penalties.

Hate crimes have a particularly injurious effect upon the victim since they reinforce the negative effects of discrimination and substantiate the victim’s fears that he or she is not safe or valued in the society in which he or she lives. Lesbians, gays and bisexuals may respond to hate crimes by concealing their identity, avoiding living their lives freely, honestly and openly out of fear of becoming targets for further violence.

Hate crimes affect not only the particular victim of the crime but all members of the class targeted. A hate crime undermines the security of all lesbians, gays and bisexuals.

The criminal law is an important means of defining appropriate standards of conduct. The deliberate targeting of lesbians, gays and bisexuals for violent attacks reinforces discriminatory attitudes and sends the message that the lives of lesbian, gay and bisexual Canadians are not of equal worth. It is important for Parliament to demonstrate its abhorrence for such violence by appropriate criminal penalties.

It is not necessary to define “sexual orientation,” any more than any of the other terms require definition. There is no substance in fact, logic or law for concerns that pedophiles might be protected under the term “sexual orientation.” The suggestion that pedophiles might otherwise be protected is unfounded and offensive.

It is important that the grounds upon which hate crimes are based be expressly listed in the Criminal Code. A general prohibition on “hate” renders the provision so vague as to become meaningless, does not address the true concerns of the legislation, renders the clause subject to constitutional challenge and is completely useless as an educational measure to define appropriate standards of conduct in a tolerant and diverse society.

 

EGALE also supports the inclusion of gender as a ground in s.718.2. Too often violence against women is not treated with the seriousness it deserves. In addition, violence against lesbians constitutes violence both on the grounds of gender and of sexual orientation.

 

EGALE believes that in order to properly redress hate crimes, the definition of “identifiable group” in the existing s.318(4) of the Criminal Code should be amended to cover the same grounds as those listed in proposed s.718.2.

 

2. About EGALE
EGALE was founded in 1986. Our mandate is to “advance equality and justice for lesbians, gays and bisexuals at the federal level.”

EGALE is the only lesbian, gay and bisexual organization in Canada with a specific focus upon federal issues.

EGALE has consistently lobbied for hate crimes laws to protect lesbians, gays and bisexuals. We have also lobbied for amendments to the Canadian Human Rights Act to include sexual orientation as a prohibited ground of discrimination and for recognition of lesbian and gay relationships. EGALE has presented briefs and made submissions to both Senate and House of Commons Standing Committees, and participated in government consultations on immigration and human rights issues.

EGALE addressed the plenary session of the United Nations World Conference on Human Rights in Vienna in June 1993 and was accredited as an Official Partner of the Canada Committee for the International Year of the Family.

EGALE has also been active in judicial recognition of lesbian and gay equality. We were awarded five Court Challenges grants, are developing materials to further judicial education on sexual orientation issues, we intervened in the Canada (A.G.) v. Mossop1 case before the Supreme Court of Canada, assisted with the Layland v. Ontario2 case concerning gay marriage, and intervened in the hearing of the Egan & Nesbitt v. Canada3 decision, which was heard in the Supreme Court of Canada on November 1, 1994.

Note 1: [1993] 1 S.C.R. 554.
Note 2: (1993), 104 D.L.R. (4th) 214; leave to appeal to Ontario Court of Appeal granted on June 7, 1993.
Note 3: (1993), 103 D.L.R. (4th) 336 (F.C.A.); leave to appeal to Supreme Court of Canada granted on October 15, 1993.

 

3. How prevalent are hate crimes on the ground of sexual orientation?

 

EGALE believes that most Canadians are committed to the principles of equality, tolerance and respect. Unfortunately, there remains enough intolerance against groups such as lesbians, gays and bisexuals to significantly detract from the quality of life of members of the targeted groups. Sometimes this intolerance manifests itself in violence. Murders and violence against lesbians, gays and bisexuals are, unfortunately, not uncommon.

(a) Some examples of crimes motivated by hatred based on sexual orientation
In 1985, Kenn Zeller was murdered by five teenagers in a Toronto park. Evidence at trial revealed that the five youths had agreed to go to the park to “beat up a fag.”4

Note 4: Petersen, “A Queer Response to Bashing: Legislating Against Hate” 16:2 (1991) Queen’s Law Journal 237, 246.
In March 1989, a gay AIDS activist, Joe Rose, was murdered on board a crowded Montreal bus. A gang of about 15 youths boarded the bus, taunted him with shouts of “faggot” and then stabbed him to death with scissors, hunting and kitchen knives.5

Note 5: Petersen, supra, at 246.
In August 1989, Alain Brosseau, a young man who was perceived to be gay was thrown to his death from the Interprovincial bridge between Ottawa and Hull. His attackers testified that they were out “just to roll a queer.” Thomas MacDougall, one of the attackers, stated that he put an imitation gun “to the guy’s head and he freaked out … I started laughing.” Jeffrey Lalonde, another of the youths, dangled Brosseau upside-down from the bridge, said “Oh, I like your shoes,” and then let go.6

Note 6: “Man jailed 7 years for waiter’s slaying,” Ottawa Citizen, 3/4/90.

In December 1992, in Montreal, Yves Lalonde was savagely killed because of his sexual orientation. The attack was one of a series of dozens of attacks on gay men, believed to be part of the initiation ritual of a white supremacist group which required aspiring members to attack at least 10 gays and lesbians.7

Note 7: “Hate Slaying of gay man stuns Montreal,” Globe and Mail, December 4, 1992, A-1.
In 1992, Daniel Lacombe was killed in Montreal by a group of young adults who had decided to go out and beat up gays.8

Note 8: “De l’illégalité à l’égalité: Rapport de la consultation publique sur la violence et la discrimination envers les gais et lesbiennes,” Commission des droits de la personne du Québec, (May, 1994) at p.68.
At a November 1993 adult high school meeting hosted by the Action Plan Project of the Ottawa Police Services Board, a bisexual woman reported having four ribs broken by a man wielding a baseball bat because he resented her relationship with another woman; another woman stated that a friend of her brother had been murdered in Toronto because he was gay, and a third woman spoke of a friend who had been gay-bashed.9

Note 9: Pepper and Holland, “Moving Toward a Distant Horizon,” The Final Report of the Action Plan Project funded by the Ottawa Police Services Board, June 1993—March 1994, (April 1994), at p. 45.
In November 1992, a gay man in Ottawa had his nose broken by four men upon leaving a gay bar and was admitted to hospital.10

Note 10: “Moving Toward A Distant Horizon,” supra, at Appendix F, Minutes of November, 1993 meeting.
In June 1993, a young man visiting Ottawa was accosted by a group of neo-Nazis who called him “faggot” repeatedly, carried knives and uttered death threats.11

Note 11: “Moving Toward A Distant Horizon,” supra, at Appendix F, Minutes of June 1993 meeting.
In July 1993, a motorist jumped out of his car and assaulted a pedestrian after asking the pedestrian if he was homosexual.12

Note 12: “Moving Toward A Distant Horizon,” supra, at Appendix F, Minutes of August 1993 meeting.
In August 1993, a gay man was hit in the face by an aunt and an uncle at a family party.13

Note 13: “Moving Toward A Distant Horizon,” supra, at Appendix F, Minutes of August 1993 meeting.
In August 1993, two strangers approached a man returning to Ottawa from Hull and asked him where he had been. When he gave the name of a local gay bar they remarked “Oh, you’re a fag” and beat him so badly he was in hospital for two days.14

Note 14: “Moving Toward A Distant Horizon,” supra, at Appendix F, Minutes of August 1993 meeting.
A gay man in Peterborough was leaving an alternative bar when he heard someone yell: “Hey fag.” He turned around and was beaten so badly with a baseball bat he required reconstructive surgery on his cheeks.15

Note 15: “Moving Toward A Distant Horizon,” supra, at Appendix F, Minutes of September 1993 meeting.
On October 6, 1993, a man was punched in the mouth and his teeth were chipped by an assailant who said: “Hey queer, I’m going to kill you.”16

Note 16: “Moving Toward A Distant Horizon,” supra, at Appendix F, Minutes of October 1993 meeting.
On March 10, 1994, a woman was pulled behind a store and assaulted by Nazi skinheads who called her a “dyke”; she was left with two cracked ribs and a badly bruised face.17

Note 17: “Moving Toward A Distant Horizon,” supra, at Appendix F, Minutes of March 1994 meeting.
A gay male in Vancouver was verbally abused by another male who “said he would show me—he’d fuck me, then kill me and that would make me smarten up.” This individual reported that this kind of harassment happens “at least once a week” to his circle of gay friends.18

Note 18: Samis, “Preliminary Findings of a Survey on Anti-Gay/Lesbian Violence in Vancouver,” (Summer, 1994).
After his partner died of AIDS, a 52 year old supervisor was verbally and physically victimized by his superior in upper management.19

Note 19: Samis, “Preliminary Findings of a Survey on Anti-Gay/Lesbian Violence in Vancouver,” (Summer, 1994).
One Vancouver survey respondent, when asked how much harassment he experienced at school, reported “a lot.” When asked to explain this, he replied that it was “too painful to relate, sorry!”20

Note 20: Samis, “Preliminary Findings of a Survey on Anti-Gay/Lesbian Violence in Vancouver,” (Summer, 1994).
While walking near Stanley Park in downtown Vancouver, a gay man was recently assaulted with a knife by a youth he believed to be under 18 years of age.21

Note 21: Samis, “Preliminary Findings of a Survey on Anti-Gay/Lesbian Violence in Vancouver,” (Summer, 1994).
A 23 year old gay male reported that he was “pushed against a wall and threatened with a baseball bat” by another male. He suffered a broken nose and had his jacket stolen.22

Note 22: Samis, “Preliminary Findings of a Survey on Anti-Gay/Lesbian Violence in Vancouver,” (Summer, 1994).While waiting in line outside a downtown Vancouver gay bar, a 55 year old man reported that a young man grabbed his hair and called him a “fucking queer.” When the gay male tried to walk away, the offender punched him in the face and knocked him down.23

Note 23: Samis, “Preliminary Findings of a Survey on Anti-Gay/Lesbian Violence in Vancouver,” (Summer, 1994).
At least fourteen gay men have been murdered in Montreal since 1989 as a result of homophobic violence.24

Note 24: “De l’illégalité à l’égalité: Rapport de la consultation publique sur la violence et la discrimination envers les gais et lesbiennes,” Commission des droits de la personne du Québec, (May, 1994) at p.68.

(b) Incidence of violence against lesbians, gays and bisexuals
There is no Canadian equivalent of the American Hate Crimes Statistics Act to measure the incidence of homophobic violence. The Quebec Human Rights Commission in its report on public violence and discrimination against lesbians and gays referred to the many testimonies it had heard from lesbians and gays who had been physically attacked in the streets, parks and even in teaching institutions.25 The Commission accepted the American figures of the National Gay and Lesbian Task Force that one-fifth of gay men and one-tenth of lesbians had been physically assaulted. One-third of respondents had received threats of violence.26

Note 25: “De l’illégalité à l’égalité, supra, at p.69.

Note 26: De l’illégalité à l’égalité, supra, at p.70.
In a New Brunswick Study on Discrimination and Violence against Lesbians, Gays and Bisexuals27, it was found that 82% of respondents had been verbally abused for being lesbian or gay, 34% had been chased or followed because of their sexual orientation and 10% had been spat upon. 19% had had their property damaged because of homophobia. 17% had had objects thrown at them, and 18% had been punched, kicked, hit or beaten because of their sexual orientation. 23% of New Brunswick gays or lesbians had been harassed or assaulted by the police.

Note 27: “Discrimination and Violence Encountered by Lesbian, Gay and Bisexual New Brunswickers,” New Brunswick Coalition for Human Rights Reform, (1990).
Similar results were found in a recent Nova Scotia study28 on homophobic abuse and discrimination. In Nova Scotia, 72% of respondents had been verbally abused, while no less than 42% had been threatened with violence. 33% had been chased or followed because of their actual or presumed sexual orientation, while 9% had been spat upon. 12% had had their property damaged. One man, for example, had the word “Fag” engraved on his car hood29, while a lesbian couple had their home vandalized by a person who was looking after it while they were away, with special attention being paid to the destruction of mementos, photographs and letters.30

Note 28: “Proud but Cautious: Homophobic Abuse and Discrimination in Nova Scotia,” Nova Scotia Public Interest Research Group, (1994).

Note 29: “Proud but Cautious,” supra, at p.17.

Note 30: “Proud but Cautious,” supra, at p.17.
25% of those surveyed in the Nova Scotia study indicated they had had objects thrown at them, and 18% had been assaulted with a weapon, punched, kicked or beaten because of their sexual orientation.31 16.5% of respondents had been harassed by the Police, and another 2% had been beaten by the Police.32

Note 31: “Proud but Cautious,” supra, at p.19.

Note 32: “Proud but Cautious,” supra, at pp.20-21.
In Equality for All, the Parliamentary Committee on Equality Rights reported:33
“We were shocked by a number of the experiences of unfair treatment related to us by homosexuals in different parts of the country. We heard about the harassment of and violence committed against homosexuals. We were told in graphic detail about physical abuse and psychological oppression suffered by homosexuals. … Hate propaganda directed at homosexuals has been found in some parts of Canada.”

Note 33: “Equality for All: Report of the Parliamentary Committee on Equality Rights” (1985), at p. 26.
Similarly, the Law Reform Commission of Canada has recognized that “in recent history, homosexuals have been subjected to hateful attacks which led to their physical harm. After all, homosexuals were also victims of the genocidal policies of the Nazis.”34

Note 34: Law Reform Commission of Canada, “Working Paper 50: Hate Propaganda” (1986), at 33.
Lesbians, gays and bisexuals are systematically targeted for hatred, violence and abuse in Canada because of their sexual orientation. It is imperative that the law recognizes the seriousness of this criminal activity and reflects that seriousness in the penalties handed down upon sentencing.

4. Why have increased penalties for hate crimes?
Crimes motivated by hatred are particularly invidious, since they reinforce the negative treatment and stereotyping of already-disadvantaged groups.

It should be noted that Bill C-41 will not create any new crime. It will simply provide that hate motivation should be treated as an aggravating factor upon sentencing, once a crime has been committed.

(a) Consistency in existing Judicial Practice
It is commonplace for the Courts to take motivation into account in determining sentence. A planned, premeditated assault is treated as deserving a harsher penalty than one which occurs “on the spur of the moment.” A crime motivated by revenge is treated as more serious than one based on negligence.
For similar reasons, crimes motivated by hatred against a disadvantaged group deserve severe penalties. Indeed, Courts have already recognized that crimes motivated by hatred against racial or sexual minorities deserve harsher penalties.35 In R v. Lelas36, a member of the Ku Klux Klan was convicted for defacing a synagogue with swastikas. At trial, he was sentenced to six months’ imprisonment. On appeal, the Ontario Court of Appeal doubled his sentence to one year. The majority judges held:37

“An offence directed against a particular religious or racial group is more heinous, as it attacks the very fabric of our society.”

Note 35: See R v. Ingram (1977); R v. Atkinson (1978).

Note 36: (1990) 74 O.R. (2d) 552 (C.A.).

Note 37: Ibid., at 557.
Despite the judicial recognition of bias-motivation as an aggravating factor in penalty, it is important to enact s.718.2 of Bill C-41 to ensure that case-law develops consistently across the country. It is also important to ensure that hatred based on sexual orientation is equally recognized as an aggravating factor, to the same extent as hate crimes based on race, sex and religion.
Just as s.718.2(a)(ii) of Bill C-41 will provide that abuse of a position of trust is an aggravating factor, so too, it is appropriate to give recognition to other aggravating factors such as hate-motivation.

(b) Hate crimes have a more serious impact upon the victim
Many groups in Canadian society face systemic disadvantage because of such grounds as their race, religion, gender, disability or sexual orientation. When members of these groups are singled out for crimes of hatred, it contributes to the victimization experienced by that person and can have more severe emotional consequences. As Professor Cynthia Petersen has noted:38

“Bias-motivated violence … is more harmful than random violence. Individual victims suffer greater psychological harm because the violence compounds their pre-existing oppression.”

Note 38: “A Queer Response to Bashing: Legislating against Hate,” supra, at p.248.
This increased harm has also been noted in respect of disadvantaged ethnic communities.39

Note 39: “Ethnoviolence has a greater impact on its victims than do other forms of victimization.” Ehrlich, “The Ecology of Anti-Gay Violence” (1990) 5(3) J. Interpersonal Violence 359 at 364.

In Keegstra, the Supreme Court of Canada upheld the constitutionality of the hate propaganda provisions in the Criminal Code, and stated:40

“In my opinion, a response of humiliation and degradation from an individual targeted by hate propaganda is to be expected. A person’s sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs. The derision, hostility and abuse encouraged by hate propaganda therefore have a severely negative impact on the individual’s sense of self-worth and acceptance.”

Note 40: R v. Keegstra [1990] 3 S.C.R. 697, 746.
The Quebec Human Rights Commission found in the course of its public hearings that acts of violence based on sexual orientation are often accompanied by homophobic insults and threats, and the degree of physical violence used is often more extreme. The attacks are frequently committed by strangers with no link to the victim, and often by members of groups with an extremist and discriminatory ideology. The Commission also emphasized the particularly devastating impact of hate violence, particularly upon lesbians who face disadvantage related both to their sexual orientation and to their gender.41

Note 41: “De l’illégalité à l’égalité,” supra, at p.69.
A recent report on anti-gay and lesbian violence in Vancouver notes that:42

“Violence against lesbians and gay men due to their sexual orientation is widespread in Canadian society. Criminal justice statistics also indicate that it is on the increase—especially in large cities across the country. Anti-gay/lesbian violence in Canadian society closely mirrors that found in the United States. A Director of Victim Services at Bellevue Hospital in New York City has observed that ‘attacks against gay men were the most heinous and brutal I encountered. They frequently involved torture, cutting, mutilation, and beating, and showed the absolute intent to rub out the human being because of his sexual orientation.’”

Note 42: Samis, Preliminary Findings of a Survey on Anti-Gay/Lesbian Violence in Vancouver, (1994), supra.
The same report also identifies the increased psychological impact of hate crimes:43

“Research by the National Institute Against Personal Prejudice and Violence in the United States indicates that victims of [hate crimes] violence suffer 21 percent more trauma symptoms than other victims of similar crimes.’ The psychological effects of victimization because of who you are—whether that be because of your religion, the colour of your skin, your gender, or your sexual orientation—creates severe psychological trauma for victims.”

Note 43: Samis, ibid.
Because hate crimes have a particularly severe effect upon the victims, it is perfectly appropriate to reflect this increased impact by imposing more severe penalties.

(c) Hate crimes affect not only the direct victim, but all members of the targeted group
Hate crimes by their nature are more serious because they affect a broader class of victims than the person directly targeted. All members of the target group are made to feel insecure because they know that the violence could just as easily have been directed against them. Any lesbian, gay or bisexual walking the streets knows that they are exposing themselves to the risk of violence and even death if they hold their partner’s hand, for example, or wear a shirt or button that identifies them as gay or lesbian, or attend a venue or event associated with the lesbian or gay communities. It somehow takes the pleasure out of feeling the warmth of your partner’s hand in your own when you know that any passing stranger might take it upon himself to beat either or both of you, possibly to death.
Professor Petersen notes:44

“Furthermore, bias-motivated violence victimizes an entire community of people by effectively intimidating its members. Every queer-bashing incident serves to remind each of us that we could be next.”
Note 44: “A Queer Response to Bashing,” supra, at p.248.
Similarly, the Vancouver research report on anti-gay and lesbian violence states:45

“Anti-gay/lesbian violence and victimization not only hurts individuals, but the persistent threat of hate crimes against lesbians, gay men and bisexuals serves to terrorize the entire lesbian and gay community.”
Note 45: Samis, Preliminary Findings of a Survey on Anti-Gay/Lesbian Violence in Vancouver, (1994), supra.
Society has an interest in the rights not only of the victim but of the broader community. Where a crime impacts negatively upon a whole class of people, a more severe penalty is warranted. The Supreme Court of Canada has recognized the broader impact of hate propaganda upon members of a targeted group:46

“This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity through, among other things, respect for the many racial, religious and cultural groups in our society. …

Hate propaganda seriously threatens both the enthusiasm with which the value of equality is accepted and acted upon by society and the connection of target group members to their community.”

Note 46: R v. Keegstra, supra, at 746-747, 758.

For lesbians, gays and bisexuals, hate-motivated violence contributes to the difficulties we experience in overcoming the stereotypes and prejudices prevalent in the society in which we were raised:47

“As young people we are told that gays are to be avoided and gayness hidden because homosexuals are perverted, unhealthy, unhappy, disgusting and likely to molest heterosexuals. Sometimes it was said directly through queer jokes, verbal attacks and threats or reports of violence. Other of us heard more subtle comments … bit by bit we began to accept what we were told. We absorbed anti-gay beliefs before we knew that we were gay. It was often only with great difficulty that we could acknowledge our own gayness, for then these beliefs would apply to us.”

Note 47: Goodman, Lakey, Lashof & Thorne, No Turning Back: Lesbian and Gay Liberation for the Eighties, (1983), at pp. 23-24.
Crimes motivated by hatred against a disadvantaged group threaten the personal security and reinforce the disadvantage of every member of that group and therefore warrant a more severe penalty.

(d) Hate crimes laws necessary to educate and set acceptable standards of behaviour
The criminal law helps define acceptable standards of social behaviour. As the Supreme Court of Canada has stated:48

“The criminal law is a very special form of governmental regulation, for it seeks to express our society’s collective disapprobation of certain acts and omissions.”

Note 48: R v. Morgentaler, [1988] 1 S.C.R. 30, at 70.
Unfortunately, we live in a society where many people are taught that it is acceptable to hate homosexuals. Even members of this Committee have publicly stated that they “hate homosexuality,” that one may legitimately “abhor homosexuality,” that homosexuality is “abnormal” or “immoral.” Not surprisingly in such a climate, some members of society express their hatred of homosexuality through violence. Public expressions of hatred reinforce the message that this violence is acceptable.

In the case of Kenn Zeller, for example, (the gay man who was beaten to death in Toronto by five youths) a prison psychologist who examined the perpetrators of the murder remarked:49

“These boys aren’t stupid, they’re well raised, and yet they talk of homosexuals as some lesser species … Maybe the feeling is too much ingrained from their environment.”

Note 49: supra.
The lack of clear legal denunciation of anti-gay violence legitimates that violence:50

“Mainstream culture generates queer-bashers. It relegates lesbians and gay men to the periphery of society. Our cultures are suppressed, our histories erased, our families ignored, our communities ridiculed and our contributions devalued. We are so degraded, stigmatized, and marginalized that the normative restraints of members of the mainstream culture are neutralized. At best, we are seen to occupy merely peripheral space and are socially defined as worthless. At worst, we are perceived to be socially infectious and are believed to be worthy of extinction. Heterosexist violence is not only tolerated, it is encouraged by mainstream culture.”

Note 50: Petersen, “A Queer Response to Bashing,” supra, 252.
The Supreme Court of Canada has recognized that criminalization of hate propaganda “serves to illustrate to the public the severe reprobation with which society holds messages of hate … the message sent out is that hate propaganda is harmful to target group members and threatening to a harmonious society. … The harms caused by [hate propaganda] run directly counter to the values central to a free and democratic society, and in restricting the promotion of hatred Parliament is therefore seeking to bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons.”51

Note 51: Keegstra, supra, at 756, 769.
If s.718.2 of Bill C-41 is enacted, it will send the clear message that homophobic violence is just not acceptable. Similarly, if s.718.2 is not enacted—or if “sexual orientation” is not included—it will send the equally clear message that Parliament is not concerned about the serious violence regularly suffered by lesbians, gays and bisexuals.

5. Should sexual orientation be defined?

Those opposed to protecting lesbians, gays and bisexuals from homophobic violence often claim that the term “sexual orientation” is unclear in its scope and attempt to suggest that it could cover such forms of criminal behaviour as pedophilia, necrophilia or bestiality. These claims have no basis in fact, logic or law. EGALE considers that calls for a definition are in reality an attempt to undermine the proposed amendment and to focus attention on questions of semantics rather than on the substance of the issue, which is the violence faced by lesbians, gays and bisexuals. In our view, a definition is neither necessary nor appropriate, for the following reasons:

The term “sexual orientation” has been part of Canadian jurisprudence for 17 years. It was added to the Quebec Human Rights Act in 1977 and the Ontario Human Rights Code in 1986. No Court or tribunal has ever had difficulty interpreting or applying the term.
Those who demand a definition are often attempting to imply that the phrase “sexual orientation” might be interpreted to cover pedophilia. There is no factual or legal basis for such a claim. These people are in reality trying to appeal to discredited myths and stereotypes to suggest a link between two concepts that are unrelated. Pedophile behaviour is a criminal offence and quite simply has nothing to do with one’s sexual orientation. No Court or tribunal has ever held that pedophiles are protected by the term sexual orientation.

The onus should be on those seeking to undermine sexual orientation protection to identify sound jurisprudence substantiating their concerns. No such jurisprudence exists.

That the core of the opposition to the term “sexual orientation” is really based on homophobia is illustrated by the fact that there are no calls to define other grounds identified in s.718.2, such as “age” or “disability.” After all, pedophilia is not about the gender or sexual orientation of one’s sexual partner, it is a question of the age of the parties. Similarly, in the case of Roy v. Human Rights Commission (N.S.)52 a pedophile tried unsuccessfully to argue that he was protected by the “disability” provisions of the Nova Scotia Human Rights Act. Nonetheless, those apparently concerned about this issue do not seek a definition of “age” or “disability” in Bill C-41 to prevent such claims, but instead restrict themselves to challenging the ground “sexual orientation”—mainly because what they really oppose is recognition of the legitimate claims of lesbians, gays and bisexuals.

Note 52: (1992) 115 N.S.R. (2d) 80 (N.S.S.C.).
No other ground in Bill C-41 has been defined. “Sexual orientation” is no less certain than other existing grounds, such as “religion”, “national origin”, “ethnic origin”, “race” and “colour,” for example. What guarantee is there that cultists might not seek to use the ground “religion” to include ritual human sacrifice, or Satanism? Yet there are no calls for a definition of “religion.” Defining “sexual orientation” will set the term apart from every other ground, in an attempt to allay a concern which has no basis in fact or law, but which instead serves to fuel damaging stereotypes.

The Federal Government had no difficulty interpreting and applying the somewhat vaguer term “homosexualism” in 1977, when that was a ground on which immigration status into Canada might be refused.

“Sexual orientation” is now included in the Human Rights Acts of seven out of ten provinces and also the Yukon Territory. In not one of those statutes was it felt necessary to define the term.

At the federal level, the Ontario Court of Appeal in Haig v. Canada accepted sexual orientation as an analogous ground of discrimination in the Charter of Rights and also ruled that the term “sexual orientation” should be read into the Canadian Human Rights Act. Once again, the Court felt that the meaning of “sexual orientation” was quite clear without the need for further elaboration or definition. The Haig case was followed this year in the Vriend case, which has been appealed by the Government of Alberta.

Numerous other Courts and tribunals have addressed the issue of sexual orientation discrimination without any definitional problems. Some such cases include Brown v. British Columbia (Minister of Health), Veysey v. Commissioner of Correctional Services of Canada, Knodel v. British Columbia (Medical Services Commission), Leshner v. the Crown (Ontario), Douglas v. Canada, Re Lorenzen, Clinton v. Ontario Blue Cross, & Re Luc Guevremont. EGALE is not aware of any decision in which the term sexual orientation has caused difficulties of definition.

6. Should the whole list of grounds be eliminated?

Others have suggested that the entire list of grounds in s.718.2 should be eliminated. The section would then provide that evidence that the offence was motivated by “bias, prejudice or hate” shall be an aggravating factor. This amendment would not fulfil the purpose of the section, for several reasons:
Such an amendment would render the section so vague as to be meaningless. The purpose of s.718.2 is to redress the specific social problem of hate crimes against specific groups. But what is a crime motivated by “hate” generally? If two people just don’t like each other and have a fight, is the assault “motivated by hate”?

Without identifying the grounds upon which hatred must be based, the provision is conceptually extremely broad in scope. As a result, it would probably be held to be void for unconstitutional vagueness.
If there are concerns about protecting pedophiles by the legislation, having no restriction on the grounds identified would open the provision up to claims for protection by any group.

It is appropriate and just to identify those groups which are most commonly subject to violence. The law should respond to the clear needs of these groups in a direct and articulate fashion.

Deleting the list would completely strip s.718.2 of its educative function. One of the key purposes of such a provision is to set standards and define appropriate boundaries of criminal behaviour. Without a list, there is no possibility of education concerning which forms of hatred are addressed by the legislation.

In EGALE’s experience, no-one has a problem with lists, until it is suggested that lesbians, gays and bisexuals be added. Only then do some people seek to delete the entire list. EGALE considers that suggestions that the list should be eliminated are not based on any sound position of principle, but simply reflect an unwillingness to accord any recognition to the legitimate needs of lesbians, gays and bisexuals.

7. The amendment is not about “special rights”

Nothing in this amendment confers “special rights” on lesbians, gays and bisexuals. The legislation will protect heterosexuals equally with lesbians, gays and bisexuals, even though heterosexuals do not live with the same conditions of disadvantage and are not targeted for violence in the way that lesbians, gays and bisexuals are.

Lesbians, gays and bisexuals are systematically disadvantaged in just about all aspects of our lives. We do not have access to the same benefits as heterosexuals, we are not adequately or consistently protected from discrimination, we are subject to conditions of disadvantage and constantly live with the threat of violence. We are not seeking anything which heterosexuals do not or will not enjoy. Precisely what “special rights” lesbians, gays or bisexuals would have under the proposed legislation has never been clearly articulated.

It is not a “special right” to be able to live your life without fearing for your personal safety. Security of the person is a basic right which we should all be able to enjoy, but lesbians, gays and bisexuals currently cannot enjoy this security because of unacceptable levels of homophobic violence.

8. Support for recognition of hate crimes against women

EGALE supports the inclusion of the ground “sex” in s.718.2 to help redress violence against women. Lesbians face violence both as a result of their gender and as a result of their sexual orientation.

9. Expansion of definition of “identifiable groups” in s.318(4)

Bill C-41 relates only to sentencing. Section 318(4) of the Criminal Code creates a substantive crime of promoting hatred against identifiable groups. The definition of “identifiable groups” is underinclusive, however, and does not include hate crimes on the grounds of either gender or sexual orientation.

EGALE believes that in order to properly redress hate crimes, the definition of “identifiable group” in the existing s.318(4) of the Criminal Code should be amended to cover the same grounds as those listed in proposed s.718.2.

10. Conclusion

EGALE welcomes this legislation which provides an important first step in redressing the violence faced by lesbians, gay men and bisexuals. Hate crimes have a more serious impact both upon the victim and upon the broader community than a simple assault, and this should be reflected in the penalty imposed. In addition, it is important to send a clear message to the Canadian public that homophobic violence will not be tolerated. No definition of the term is needed nor appropriate, since this will serve no useful function and tends to reinforce inaccurate and offensive stereotypes. Nor should the list of grounds be eliminated, since this will render the clause meaningless and vague, and expose it to constitutional challenge.

 

Fin du document