Hate Crime

A criminal act against a person or property motivated by hate or bias against a person's or group's race, religion, ethnicity, sexual orientation or disability is considered a hate crime. The offence can include hate propaganda that is spread in a public place by telephone, is broadcast or through other audio or visual means. 

Statistics Canada reported 1,946 police-reported hate crimes in Canada in 2019, up seven per cent from the previous year, noting that other than a peak of 2,073 hate crimes in 2017, police-reported numbers were the highest since 2009.

The COVID-19 pandemic saw a significant spike of hate crimes against Asian-Canadians, with major cities across the country reporting crime rates that are 600 to 700 per cent higher than the previous year, according to Fight COVID Racism. The group's study found there were 891 reported incidents of anti-Asian hate crimes a year into the pandemic. 

The three sections of the Criminal Code that address hate-related offences are:

• Section 318 states that anyone who advocates or promotes genocide is guilty of an indictable offence;
• Section 319 (1) makes it illegal to make statements in any public place that incite hatred against any identifiable group where such incitement is likely to lead to a breach of the peace;
• Section 319 (2) deals with the "wilful promotion of hatred" other than in a private conversation.

The Crown prosecutorA lawyer who conducts a criminal prosecution on behalf of the public. must prove beyond a reasonable doubtThe high standard the Crown must meet to prove guilt. that you committed the offence and the victim is not fabricating the testimony against you. Your lawyer may be able to show that your rights under the Canadian Charter of Rights and Freedoms were breached during a police investigation.

The Code states no person shall be convicted of wilful promotion of hatred if:

• the accused establishes that the statements communicated were true;
• the person expressed in good faith or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
• the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds they believed them to be true; or 
• the accused in good faith intended to point out matters producing or tending to produce feelings of hatred toward an identifiable group in Canada in an effort to have them removed.

The classification of a hate crime charge depends on which specific offence has been laid. Advocating genocide under s.318 is a purely indictable offenceA more serious type of Canadian criminal offence., meaning the Crown has no option to proceed by summary convictionLess-serious criminal offences; that charge can only be tried as an indictable matter. By contrast, public incitement of hatred (s.319(1)), wilful promotion of hatred (s.319(2)), and wilful promotion of antisemitism (s.319(2.1)) are all hybrid offenceAn offence the Crown can proceed with summarily or by indictment.s: the Crown may proceed by indictment or by summary conviction. Hate-motivated mischief to property associated with an identifiable group (s.430(4.1)) is also a hybrid offence. If the Crown proceeds summarily on a hybrid charge, the penalties are generally less severe than those available on indictment.

The penalties vary depending on the section of the Code. Advocating genocide is an indictable offence and a conviction could land you in prison for up to five years. 

Public incitement of hatred and wilful promotion of hatred carries a maximum jail sentence of up to two years if the Crown elects to proceed with the charge as an indictable offence.

Such factors as the seriousness of the incident and your prior criminal record will be considered by the judge if you are convicted. 

According to s.718.1 of the Criminal Code, any punishment "must be proportionate to the gravity of offence and the degree of responsibility of the offender." The vulnerability of a victim by virtue of disability or other similar factors is considered and may have a significant impact on sentencing, according to the Department of Justice.