A version of this article appeared in the Montreal Gazette on June 3, 1995

Since September 1994, Bill C-41 has been stuck in committee after second reading in the House of Commons. It shouldn’t be.

Liberal MP Roseanne Skoke and others have used debate on the bill as a platform to decry gay lifestyles and to tell Canadians that our fundamental values are at risk if the bill is passed.

Because the bill, “an Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof,” uses the phrase “sexual orientation” in one provision, it has been attacked by politicians and some religious coalitions as anti-family and promoting homosexuality.

Others question the need for a law that sets out explicit and harsher penalties for hate-motivated crime. They see it as mere window dressing that bows to political correctness.

A reading of the bill and a knowledge of its origins show that these criticisms are off the mark.

The bill, introduced by Justice Minister Allan Rock, responds to calls from the Canadian Bar Association, the Law Reform Commission of Canada and previous sentencing commissions that urged greater consistency in criminal prosecutions across Canada. It is important to achieve consistency in the purposes and principles of sentencing; in procedure and the admissibility of evidence in penalties the courts may impose.

It would be ludicrous to exclude guidelines on hate-motivated crimes from such a bill. The provision at the root of the controversy is section 718.2 of the revised Criminal Code, under which judges are instructed to consider “as aggravating circumstances” in sentencing any evidence “that the offence was motivated by bias, prejudice or hate, based on the race, nationality, color, religion, sex, age, mental or physical disability or sexual orientation of the victim.”

The provision is an attempt to state current practice and case law, which some judges have used and others have not. The provision does not “create new law.” It simply promotes consistency in the application of law that already exists.

From the standpoint of law-enforcement practitioners dealing with hate crimes, the provision is a practical necessity. The bill, which includes the general categories police encounter in hate- motivated crimes, is a practical tool, not a “statement of societal values” as some would have it.

It is also practical because it helps control a specific type of crime that is likely to be repeated. Perpetrators of hate crimes direct hate against a category, often several categories of citizens. They are not motivated by particular circumstances, but by a broad hate that can influence their behavior at any time.

When racist skinheads set out to beat up a homosexual, any gay man will do. Men in Montreal and Ottawa have been killed because others thought they were gay. The justice system has a reason to identify such perpetrators and deal with them in a way that will reduce the risk of a repeat offence.

This is sound legal practice. It lets all of us know the consequences of hate.

A close look at the categories also shows that “new rights” are not created by the provision. Heterosexual is protected as much as homosexual; male is protected just as much as female; white is protected as much as black, etc. The provision does not create new offences. A person must be convicted of an existing crime before the provision applies.

Finally, this provision only indicates what the judge will consider an aggravating circumstance in passing sentence. Any sentence, however, is the result of a balance between mitigating and aggravating circumstances. There is no foolproof way of predicting the particular sentence in a specific set of circumstances because these almost always vary in some way from one case to another.

This law in no way approves the homosexual lifestyle. It simply helps send the message that violence and hate against individuals is not condoned.

The broader civil and political rights of gays and lesbians will be decided in the context of national and international human- rights law and have nothing to do with the practical necessities of law designed to help prevent repeat offences of hate-motivated violence in our society.

* Rubin Friedman is director of government relations for B’nai Brith Canada.