Canada’s criminal code doesn’t mention ‘hate crime’ — so how do we hold people accountable?

Click to play video: 'Alleged assault of Mississauga father being investigated as hate-motivated'
Alleged assault of Mississauga father being investigated as hate-motivated
WATCH: Alleged assault of Mississauga father being investigated as hate-motivated – Jul 18, 2018

A 38-year-old Muslim father is in hospital after being beaten in what police are investigating as a “hate-motivated crime.”

Witnesses told Peel Regional Police the alleged perpetrators shouted racist terms at Muhammad Abu Marzouk during the attack, which occurred Sunday in front of his young daughters and wife.

READ MORE: Attack on Muslim man may have been hate-motivated, Peel police say

Two brothers have been charged with assault.

Hate-related crimes account for a relatively small portion of all crime reported in Canada — but the number has increased in recent years.

WATCH: The number of hate crime incidents in Toronto

Click to play video: 'Most recent hate crime statistics, social media reaction to #FirstTimeIwasCalled'
Most recent hate crime statistics, social media reaction to #FirstTimeIwasCalled

According to Statistics Canada, there were 1,409 police-reported “criminal incidents in Canada that were motivated by hate” in 2016. That’s an increase of three percentage points from the previous year.

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But the Criminal Code of Canada doesn’t actually contain the words “hate crime” anywhere.

So, what exactly is a hate crime then?

What the code does contain are sections that include a “recognition that the action was motivated by hatred,” Markham, Ont.-based lawyer Richa Sandill explained to Global News.

“There’s a recognition in the Criminal Code that an act can be motivated by hate, but a hate crime isn’t a chargeable offence,” Sandill said.

She added that judges can account for hate-related motivation when deciding the sentence. As laid out in the code’s Section 718.2, a sentence can be increased by a judge if there is proven hate intent.

The code also includes related terms, specifically in these sections that relate to hate speech: Section 318, Section 319 (1) and Section 319 (2). These areas outline the offence of “advocating genocide” against a group, the “public incitement of hatred,” and the “wilful promotion of hatred.”

READ MORE: B.C. hate crimes climbed by nearly 30 per cent last year

That’s why police in Canada don’t generally use the term “hate crime,” but rather stick to phrases such as “hate-motivated” or “bias-motivated” crime.

Peel police explain that two components need to be present for an incident to be considered as such. First, an actual crime, such as assault or property damage, has to take place. Second, there must be evidence of bias or hatred toward the victim. Factors may include race, sexual orientation, religion and others.

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But that’s just Peel police’s way of dealing with it. Police departments across the country have varying definitions. Even the Department of Justice has noted that there is a “problem of definition” in the matter, which creates inconsistency in how it is dealt with.

WATCH: Sgt. Paul Wyatt reads the definition of “hate crime” according to the Criminal Code of Canada 

Click to play video: 'Calgary police define ‘hate crime’ according to Criminal Code'
Calgary police define ‘hate crime’ according to Criminal Code

Another aspect that makes hate speech charges rare is that they, unlike most other charges, need to be approved by a province’s attorney general.

Corey Shefman, a lawyer who focuses on human rights issues, explained that’s because a careful balance has to be struck between protecting against hate and guarding freedom of speech.

“The result is that even in the situation where a particular speech clearly should be caught within that law, there may be political ramifications to charging them,” Shefman explained.

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Shefman explained that that leaves Canada with a somewhat “impoverished system for preventing hate speech.”

READ MORE: 6 steps Canadians can take when they spot hate speech online

That wasn’t always the case, the lawyer said, pointing to a former provision in the Canadian Human Rights Act.

Section 13, which provided more avenues for dealing with hate speech, was removed by former prime minister Stephen Harper in 2013 over criticism that it was too broad.

Police-reported hate crimes in Canada by the numbers

In 2016, the latest year with statistics available, Canada saw 45 more cases of police-reported hate crimes than the previous year.

Crimes against Jewish and black individuals were most common. About 40 per cent of the overall hate crimes reported were violent.

The crimes reported most commonly target people based on race or ethnicity at 48 per cent, religion at 33 per cent, or sexual orientation at 13 per cent. Other crimes can be motivated by characteristics such as language, disabilities, age, sex or political beliefs.

WATCH: Hate crimes on the rise in Canada

Click to play video: 'Hate crimes on the rise in Canada'
Hate crimes on the rise in Canada

Of the 1,409 reported incidents, about one-third resulted in charges against the accused.

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Leila Nasr, who works with the National Council of Canadian Muslims (NCCM), explained to Global News that it’s important to remember these numbers offer a limited perspective into the issue.

“The numbers we might actually be seeing from police regarding hate crimes in Canada, it might just be a small fraction or the tip of the iceberg of what we’re actually seeing in reality,” Nasr said, noting that Stats Canada says many hate crimes don’t get reported to police.

Stats Canada explained in a 2017 report that two-thirds of individuals who said they had been victim of a hate crime did not report it to police.

Nasr added that in other instances police may not have kept adequate records.

Actions to take

Nasr explained that those in imminent danger from a hate crime should contact police.

“Even if you’re not sure whether it can be classified as a hate crime, report it to police anyway,” she said, noting law enforcement can still provide help and advice.

Individuals who may not be in direct danger have other options such as contacting the NCCM, or other relevant advocacy organizations, to anonymously ask for help.

Prime Minister Justin Trudeau promises greater action to address and prevent hate crimes

Click to play video: 'Trudeau promises further action on hate crimes against any group'
Trudeau promises further action on hate crimes against any group

Institutions such as mosques or synagogues can take precautions by having security in place and emergency plans, she said.

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Sandill added that hate-motivated acts don’t always have to be criminal, and going to the police is not the only avenue.

READ MORE: Police investigating after Ontario woman rips Qur’an, puts pages on cars outside of Islamic centre

For example, an individual facing hate at work can come out to someone within the organization. There are also options under provincial human rights codes; they can opt for a tribunal or a civil rights case as well, the lawyer explained.

“There are a lot of options, it’s just about education,” Sandill said. “It’s also about making sure we build a community where there is more inclusive space for people to come forward.”

How to spot hate, and specifically hate crimes

Shefman explained that knowing you’ve been a victim of a hate crime is difficult, especially when it comes to distinguishing hate speech from racist comments.

“It’s hard to really explicitly define where the dividing line is between hate speech and non-hate speech which is also racist,” he said.

“Trust your gut,” he said. “If it feels like hate speech, it probably is.”

But he noted that it’s ultimately the decision of law enforcement, and a lot of it is determined on a case-by-case basis.

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Sandill added that identifying hate is even more difficult if it is ongoing and not necessarily violent.

WATCH: Muslim, Jewish women ‘bear the brunt of hate crimes,’ advocate says

Click to play video: 'Muslim, Jewish women ‘bear the brunt of hate crimes’: NCCM'
Muslim, Jewish women ‘bear the brunt of hate crimes’: NCCM

“It’s easier to spot sometimes when it’s one outrageous incident, like what happened in Mississauga,” she said. “It’s harder when you’re in an environment where things are subtle.”

Sandill gave the example of a workplace issue where religious accommodations are denied — it isn’t necessarily a hate crime but still may have grounds for legal action.

To address these confusions or concerns, Sandill says it’s important to seek legal advice.

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