“Why are attacks against some considered terrorism, while this is only a ‘hate crime’?” asks Joel Arthurs via Twitter in respect to our story about a Mosque in Peterborough, Ont. that was deliberately set on fire.
Sean Fine, The Globe’s justice writer gave this response:
The reader raises a good question. Terrorism and some hate crimes may overlap. Hate may be linked to a political, religious or ideological purpose – part of the definition of terrorism. And why do people commit hate crimes if not to intimidate? Intimidation is also part of the definition of terrorism.
But the Peterborough mosque example is straightforward. Someone threw a bottle with flammable liquid through a window, causing a reported $100,000 in smoke damage. Under Canada’s 2001 Anti-Terrorism Act, property damage qualifies as terrorism only if it is substantial, and likely to cause death or serious bodily harm, or endanger public health or safety. Or if the act “causes serious interference with or serious disruption of an essential service, facility or system.” A nuclear plant, for instance.
The wording of the terrorism law communicates the largeness of scale of terrorist crimes and motivations, as Parliament views them. The intimidation clause, for instance, includes an intention to compel “a person, a government or a domestic or an international organization to do or to refrain from doing any act. . .”
“Terrorism requires attacks on individuals, not just buildings,” Winnipeg human rights lawyer David Matas says. “It trivializes the concept of terrorism to use it for property damage.”
What is a hate crime? In Canadian law, it is a crime to advocate or promote genocide, punishable by up to five years in prison. It is also a crime to incite hatred of an identifiable group, if that incitement is likely to lead to a breach of the peace. (Maximum sentence: two years.)
But the term “hate crime” is most commonly used to describe any crime — assault or arson, for instance — in which hate is an aggravating factor. The Criminal Code written by Parliament instructs judges to increase sentences when there is “evidence that the 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 other similar factor.”
“Hate crimes in Canada are simply a sentencing enhancement and not an independent crime,” University of Toronto law professor Kent Roach says. The penalty for arson would be increased if the court finds the arsonist’s motivation was hate.
But it is not always a simple matter to separate hate crimes from terrorism.
Imagine that a janitor working in the mosque was killed. Murder doesn’t require intent; it is enough that the person throwing the flammable liquid was willfully blind to the possibility. The charge could be murder, with hate as an aggravating factor. (Second degree murder, like that of first degree, carries an automatic penalty of life in prison, but the parole eligibility varies from 10 to 25 years; hate could mean more prison time.) Or the death of a janitor in the mosque could have resulted in a terrorism charge. All the elements — the intent to intimidate, the political motive, the death — are there.
The same goes for Justin Bourque’s killings of three RCMP officers in Moncton, N.B., last year, or Marc Lepine’s massacre of 14 women a École Polytechnique in Montreal in 1989. Terrorism or murder? That is where a prosecutor’s discretion comes into play.
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