It is important to understand that here in Canada there is a distinction between an act of antisemitism and a criminal charge, that is commonly referred to as a “hate crime.”
In fact, there is no specific offense of “hate crime” in the Criminal Code. Imprecise use of the term can lead to confusion. The term is more properly used to describe the outcome of the work of police and the courts, rather than the initial act.
Spoken or written words, or symbols that convey antisemitic messages do not in and of themselves constitute an infraction under the Criminal Code of Canada. By way of example, calling someone a “dirty Jew” is not an offense under the Criminal Code.
The focus of the law is on offenses where it can be proven that the act was motivated by hate or bias. This includes several categories:
1. The Hate Propaganda sections of the Code (sections 318 and 319), cover offences such as advocating genocide, incitement, willful promotion of hatred and Holocaust Denial. With the exception of incitement, the consent of the provincial Attorney General is required before charges can be laid. It is the role of police services to gather information and present a file to the Crown so that a determination can be made. This is why the Police cannot charge an individual with a Hate Propaganda offense.
2. The charge of Mischief (Section 430) includes a subsection relating specifically to religious property. Conviction under this section may result in additional sentencing. Here, as well, terminology is important. The charge laid by police under the Code is Mischief.
3. A larger category includes all criminal acts motivated by hate or bias. By way of example, a bar fight motivated by an argument over a sporting event may result in charges of assault, but the same fight, where there is evidence that the motivation was hate or bias, may take a different path. In both situations, the individual will be charged with assault. If a conviction is gained, the Crown may then present evidence to demonstrate that the offence was motivated by hate. This may result in a more significant penalty for the offense, per the Sentencing Provisions (section 718) of the Code. In such a situation the role of the police service is to lay a charge of assault.
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