Canadians have been grappling with the question of how the law should tackle hatred for more than half a century. If the courts are any indication, they’ve yet to come up with a consistent answer.
Warning: This story contains some disturbing details.
Late one night in April 2015, a drunk man entered a convenience store in the town of Hinton, Alta., and told the person behind the till he didn’t want to be served by a Black woman.
Riley Bryn McDonald used the n-word. He asked for the manager. He then picked up a cup of hot nacho cheese sauce and threw it in the clerk’s face.
The sauce stung her eyes and dripped across her face, hair and upper body. McDonald told her she should “go back to Somalia.” Then he walked out.
The case was not widely reported, but a record of McDonald’s sentencing turns up in the Canadian Legal Information Institute database, which keeps track of court judgments from across the country.
The past weeks have seen a focus on the racism that is a reality of life for Canada’s visible minorities. There has been a spike in attacks against Asian-Canadians in the wake of the coronavirus pandemic, which originated in China.
Meanwhile, the death of George Floyd in Minneapolis has shone a light on police brutality against Black and Indigenous people in Canada. Prime Minister Justin Trudeau has even acknowledged systemic racism.
Given that backdrop, McDonald’s case provides an insight into racist offences in this country and the complexity of prosecuting them. No province is immune.
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The Criminal Code contains provisions for hate crimes but they’re largely reserved for offences involving hate propaganda or the promotion or advocacy of genocide. McDonald was originally charged under one of those sections, but the charge was stayed and the Crown proceeded to treat the offence as a hate-motivated assault instead.
That’s how the majority of crimes involving racism are prosecuted in Canada — as regular offences under the Criminal Code, with bias, prejudice or hate considered aggravating factors for sentencing.
Canadians have been grappling with the question of how the law should tackle hatred for more than half a century. If the courts are any indication, they’ve yet to come up with a consistent answer.
“There’s a lot of issues as to how seriously our criminal justice system sees hate crimes,” said Avvy Go, director of the Chinese and Southeast Asian Legal Clinic in Toronto. “What is even more disheartening right now is that a lot of these cases are not even investigated as hate crimes.”
Attacked for ‘wearing a scarf around her head’
Some incidents have resulted in jail time. Some haven’t.
Judges have often expressed outrage at the offences, and some have called on lawyers to craft suggestions for sentencing that can both make amends to the community and produce some kind of change in an offender.
McDonald blamed alcohol for his outburst and claimed he was embarrassed by his actions. Defendants usually try to offset punishment in criminal offences through mitigating circumstances, which largely amount to excuses for their behaviour.
Is incarceration the way to stamp out the type of behaviour that politicians and the public frequently denounce? At the very least, experts say judges, prosecutors and police need to be on the same page when it comes to the seriousness of hate-motivated crimes.
In a 2012 case used as a precedent to sentence McDonald, a Nova Scotia judge insisted a 51-year-old grandmother with a clean record spend time behind bars for attacking, insulting and shoving a woman of Pakistani heritage at a mall “for no reason other than wearing a scarf around her head.”
“We do not ask or require that every Canadian be the same, whether you are from Newfoundland, Nunavut, British Columbia or any place in between,” Pictou Supreme Court Justice Ted Scanlon told the offender, Katherine Feltmate.
“A Canadian is a Canadian is a Canadian no matter what their vintage, religion or attire,” he said, sentencing her to 60 days in jail.
Despite this precedent, Riley Bryn McDonald spent no time in jail.
‘Hate is as old as man’
Calls for legislative action to deal with hate date back to Nazi propaganda seeping into Canadian society in the build-up to the Second World War. Concerns heightened in the 1950s and ’60s with the emergence of extreme right-wing groups and the widespread distribution of hate literature, most notably in Ontario and Quebec.
In 1965, the Special Committee on Hate Propaganda tabled a report that would give birth to Canada’s hate crimes legislation. The committee wa