This article originally appeared on VICE Canada.
Anyone who's been in a physical altercation knows that getting your ass kicked totally sucks. But getting your ass kicked because you've been singled out for your race, gender, or sexual orientation sucks twice as hard. That's because the impact of the assault extends beyond your own physical and psychological trauma and leaves your entire community feeling victimized, vulnerable, fearful, isolated, and unprotected by the law. Cultural intolerance coupled with random violence is one of those things that we as a society should all agree is unacceptable. That's why we've got laws covering hate crimes.
But what if you were beaten up not because you're gay, or because your attacker doesn't really like your religious beliefs, but rather because you're covered in tattoos and piercings and look really, really intense. Would that also constitute a hate crime?
This was the question posted by 31-year-old Ottawa-based piercer, artist, and body modification enthusiast Calvin Nicol, who was assaulted by a group of at least four men earlier this month. Nicol—who also has a split tongue, silicone horns implanted in his head, and the whites of his eyes tattooed black—was left with, among other things, a broken nose and a fractured and impacted shoulder. The assailants also pulled a piercing from between his eyes, ripping an eight-millimeter chunk of skin from his face.
In a recent interview with the Ottawa Citizen, he called the attack a hate crime. "They pretty much just called me a freak with horns, and mentioned my eyes and how they were going to give me black eyes," he told the Citizen. "For me, it was pretty much a hate crime. I was just walking by and they jumped me."
While there's no doubt the attack was a heinous and vicious crime, a few questions remained: Was this a hate crime? Aren't all assaults motivated by hate, in a way? And finally, if I gave a Star Trek nerd a wedgie, is that a hate crime?
I wanted to learn how Canadian laws work, and just how bad it would be to be charged with a hate crime, so I talked to Toronto criminal defense lawyer Lucas Rebick.
VICE: So first off, does this guy have grounds for calling this a hate crime?Lucas Rebick: Well, in terms of his subjective feelings about the manner in which he was assaulted and what he perceived to be the motive for the assault, it seems reasonable that he would use that language. But there's a fairly high and very specific threshold in criminal law that needs to be met before an offense like this is considered to have been a hate crime. And there's an argument to be made, assuming that the assault was in fact motivated by his appearance, but it's not one that's ever been made before as far as I'm aware, and anyone making it would probably have a difficult time.
Why is that?
In criminal law, the determination of whether or not a crime was motivated by bias, prejudice, or hate happens at the sentencing phase, after the offender has been found guilty. In the Criminal Code's sentencing provisions 718.2(a)(i) directs the court to consider as an aggravating factor "evidence that the offense was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, color, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor."
Could it be argued that all assaults are motivated by hate?
Hate, anger, or financial gain, yeah, I guess. The court would have to find that the reason the assault took place, the motive for the assault, was the offender's "bias, prejudice or hate" against the person he or she assaulted.
If the defendants admitted that they beat him up because he was super freaky looking, would they have a case?
The judge would still have to be convinced that your choice to cultivate a freaky appearance was a "similar factor" to religion, race, sexual orientation, gender, etc. That is a tough argument to make.
How much more serious is it if this would be deemed a hate crime, theoretically?
Theoretically? There have been a number of cases in Canada where a finding that an offense was motivated by hate resulted in a sentence being imposed that was double what it would otherwise have been. It also probably makes imprisonment more likely.
There's no general rule, except that the sentence should be longer or more onerous in some way if an offense is found to be a "hate crime," but the impact in particular of an offense being found to be a hate crime would be very significant.
When you look at 718.2(a)(i) [which is the part of the criminal code that allows for an aggravated sentence for "hate crime"] you can see that the sort of prejudice that can give rise to something being found to be a hate crime is left open-ended—but that the factors mostly describe bias against objectively identifiable groups ("race, national or ethnic origin, language, color, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor").
So in order to find that an offense motivated by hatred for the person's appearance was a "hate crime," you'd have to make an argument that that their choices around their appearance were a "similar factor" to race, gender, language, sexual orientation, etc.
Right, so you'd have to prove that cosplayers or urban primitives have lifestyles akin to a religion. Some would argue that Star Trek nerds are religiously fanatical...
Yeah, it's probably fair to say beating up someone for being too into Star Trek wouldn't qualify as a hate crime.
It might be a little misleading to look as the religious ground in terms of lifestyle, interest or belief, specifically. It's probably easier to understand if you look at the "religion" grounds as about cultural identity rather than specifically about belief. Many of the big bias crimes are against religious groups, obviously. Most of them, really, when you think about it.
The fact, or the likelihood, that assaulting someone because you don't like their Spock ears wouldn't qualify as a hate crime under 718.2(a)(i) doesn't mean that the motive for the assault wouldn't be taken seriously as an aggravating factor. It would. It just wouldn't be considered under that specific rubric.
There was a movement in the UKto add "appearance-based discrimination" to hate crime law. They argued that if you called someone a fatty, you should be charged with a hate crime. What are the immediate challenges to enforcing a law like that?
Well, probably over-breadth would be the biggest challenge. Chances are if you're assaulting someone it's because you don't like some aspect of their appearance or personality. The law already tells us it's not okay to punch someone in the face because you don't like the way they look; it's a criminal offense to punch someone for almost any reason. The penalties are more severe for bias- or hate-based crimes because we as a society want particularly to denounce that kind of behavior.
No matter what, a judge is going to take a very dim view of an assault that's perpetrated on a stranger because of some general dislike for some aspect of that person's character or appearance.
With the ubiquity of social media, the lobbying for subcultures to be recognized as legitimate religions seems like it will only grow. Take Pastafarianismfor example.
Jesus. Good luck to them.
Well, recently, a Utah woman exercised her religious right to wear a colander on her head when she had her driver's license photo taken. So I guess they're on the right path.
What we're talking about would be someone who threw a snowball at her for wearing a colander on her head being denounced as a hate criminal.
Right, and she'd have to prove that the perps knew what Pastafarianism is...
Not only that, but that they threw a snowball at her not because they thought anyone with a colander on her head was an asshole, but because they hate what the colander represented.
I guess I want to know what protects a guy from getting fired from his job for being an intense, freaky-looking tattooed guy but not protected for getting his pierced nose from being broken for what sounds like the same reason?
Well, I'm not entirely sure he's protected from getting fired either, necessarily. Anyone's protected from getting their nose broken, pierced or non-pierced, in more or less the same way. It's against the law to punch someone in the nose. It's just that if the assault is motivated by hatred for that person's membership in certain distinct groups, the law considers it more serious. The law wants to send a message at sentencing that that type of assault is extra unacceptable. When you're being discriminated against by a private person or organization, you're only protected from discrimination by human rights legislation on the basis of a number of specific grounds.
And being a freaky dude who has their eyeballs tattooed black is not one of those grounds.
Not as such, no. If you have tattoos or piercings related to your place of origin or your religion, then you could apply for protection on the basis that your appearance is a part of the expression of one of those protected grounds, but otherwise an employer is probably able to decline to hire you based on your surgically-implanted horns and facial tattoos.
This article argues that trying someone under US hate crime laws actually create a "victim hierarchy" and that under it, victims are not being treated equally. How are hate crimes tried in Canada?
Here, a hate-motivated offense is not called a different crime because it was motivated by hate. It's just (potentially) treated differently at sentencing. And the author is right, that from the victim's point of view, being beaten up for your cultural status is probably not twice as bad as being beaten up for no reason, or for some other reason, but I don't think that's why sentencing on hate-motivated offenses works the way it does here.
We don't consider a hate-motivated offense objectively twice as harmful to the victim as a non-hate-motivated offense. We (I think) have these sentencing provisions because we want to send a message to the public that hate-motivated offences are twice as intolerable to our society as non-hate-motivated offenses.
It's called "denunciation and general deterrence" in sentencing law.
And that does make sense, right? It feels something like twice as offensive to beat someone up because they're gay as to beat someone up because they called you a mean name.
Let's say Mr. Nicol wants wants to see his assault prosecuted as a hate crime, how would he do it?
Assuming that the procedure is something like it is in Ontario, he should be given at least one opportunity to communicate to the judge about how he was affected by the offence, and the fact that he feels it was motivated by hate.
(In Ontario, it's through a written document called a Victim Impact Statement, which he should be given the opportunity to read aloud if he wishes to.)
Ultimately it's the judge who decides whether or not to treat it as sentencing as a hate crime, and in real life it's up to the Crown to make the argument that it should be treated that way.
So if the judge is like, a secret Juggalo, they might sympathize.
He or she would have to do more than sympathize, they'd have to find beyond a reasonable doubt that his freaky status was the REASON they beat him up, which is a really hard thing to prove, but yeah. But yeah, it's very hard to imagine a Juggalo judge. I guess they could all be drinking Faygo out of those white pitchers they have.
The People vs. Fucking Magnets: how do they work?
A matter for the courts if ever there was one.
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