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.
On May 8, Clara Kan and her mother were victims of racist Asian slurs in Richmond, B.C. Police say victims of racist attacks are often reluctant to come forward. (Maggie MacPherson/CBC)
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 was chaired by Judge Maxwell Cohen and included Pierre Elliot Trudeau, then a university law professor. Trudeau was prime minister when the amendments to the Criminal Code were passed into legislation in 1970.
As Cohen noted in an essay reflecting on his commission’s work, the enactment of the hate laws sparked fierce debate. The tensions he described have dogged the prosecution of hatred ever since.
Pierre Trudeau was prime minister when amendments to the Criminal Code regarding hate crimes were passed into legislation in 1970. (CBCX News/CBC Archives)
“On the one hand, there was a new emphasis on individual freedom,” he said. “On the other side, there was a growing recognition that these very liberties could be dangerously abused.”
The preface to the 1965 report warns, “Hate is as old as man and doubtless as durable.” It also contains a warning that could as easily refer to the current spread of anti-Asian slurs through social media as the anti-Semitic pamphlets and slogans that emerged in Cohen’s day.
Ours is “a world aware of the perils of falsehood disguised as fact and of conspirators eroding the community’s integrity through pretending that conspiracies from elsewhere now justify verbal assaults,” Cohen wrote. He called them “the non-facts and the non-truths of prejudice and slander.”
‘A tough thing for a lot of people to hear’
According to Statistics Canada, Canadian police reported 1,798 criminal incidents motivated by hate in 2018, the second-highest number in a decade. Only 31 per cent of those crimes were solved, and of those, 68 per cent resulted in charges against one or more individuals.
Section 318 of the Criminal Code deals with promoting and advocating genocide, whereas Section 319 concerns the public incitement of hatred.
On its face, Section 319(2), the section Riley Bryn McDonald was originally charged under, says that “every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty” of an offence.
But RCMP Const. Anthony Statham, one of two members of B.C.’s hate crime team, says those charges are generally used in situations where offenders are inciting others through speech and propaganda to act in a way that might breach the peace. Charge approval also requires a sign-off from the provincial attorney general.
Instead, most acts people might think of as “hate crimes” are charged as regular offences under the Criminal Code — like assault, uttering threats or harassment.
Last July, a man accosted an Arabic-speaking woman and her two-year-old daughter on a Montreal street, uttering racial slurs and sexually violent threats. The incident was caught on video. (Facebook)
But Section 718 of the code requires judges to consider an enhanced sentence based on evidence an 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 similar factor.”
Statham and his partner work the rare cases that involve Sections 318 and 319, but they also assist police around B.C. in dealing with other offences where hatred plays a part.
He said the complexity of the law can make it seem as though people can “get away” with hurling racial epithets at strangers on the street.
Statham said the majority of cases are what police would term “hate incidents” — they may be offensive, hurtful and harmful to the community, but many are non-criminal.
“Using a racist slur is typically something that’s protected as a form of freedom of expression,” Statham said. “Which is a tough thing for a lot of people to hear.”
Fight to have offence recognized as hate-motivated
But many hateful incidents go far beyond offensive language.
In 2010, the Chinese and Southeast Asian Legal Clinic (CSALC) in Toronto helped victims prepare for the prosecution of Trevor Middleton, who was charged with aggravated assault after he and others pushed Asian anglers into the water near Mossington Park Bridge off Lake Simcoe.
A scuffle ensued between members of the two groups, and one of Middleton’s friends was badly beaten. When the anglers drove off, Middleton chased them in his pickup truck, ramming their car repeatedly until it crashed into a tree. The driver of the car — who was not Asian — suffered brain damage.
CSALC director Avvy Go said her clinic pushed to have the offence recognized as a hate crime and they helped the community prepare a victim impact statement. The victims told Go’s organization the incident had changed the way they lived, violating their sense of safety and security.
Avvy Go, director of the Chinese and Southeast Asian Legal Clinic in Toronto, said the criminal justice system is not taking racist attacks seriously. (Susan Goodspeed/CBC)
“This crime is an extreme manifestation of the all too common sentiment that Asians are not ‘real’ Canadians,” said the victim impact statement said, which was provided to CBC. “We are made to feel like we are intruders and outsiders who can be assaulted at random simply because of what we are, and not what we do.”
The Crown wanted eight to 10 years, but Middleton got two years less a day. Go said the community was outraged.
“From our point of view, the criminal justice system as a whole is not taking these crimes seriously,” said Go.
‘Nothing will be done if they don’t report’
Toronto-based researcher Abbee Corb works with police forces across Canada, teaching officers how to investigate hate crime and speak with victims.
She says hate crimes are vastly underreported, and that many victims are wary of speaking to police because they come from backgrounds where police are part of the issue. The result is a circular problem.
“People don’t report because they don’t think anything’s going to be done,” said Corb. “And nothing will be done if they don’t report it.”
Corb thinks more emphasis should be placed on recognizing hate crimes and speaking with victims as part of regular police training. She also said police need to build bridges to minority communities to build trust and solicit help in investigations.
Caught on video
The ubiquity of cellphone cameras has contributed to a growing awareness around racist attacks as victims and bystanders capture offenders on video. While Charter protections around freedom of expression mean many of those incidents don’t rise to the level of a crime, there are exceptions.
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Some judges have acknowledged that constant video recording puts an onus on everyone to take the problem of hate-motivated crime more seriously.
In 2017, Karry Vernon Corbett was caught on video shouting racially charged insults at an Indo-Canadian lawyer, who had turned his camera on Corbett after seeing him yell at a 72-year-old parking officer.
Corbett was charged with what’s known as a “no touch” assault — a provision of the law that has particular relevance to the aggressive behaviour that victims of hate crimes experience.
Karry Vernon Corbett was given a two-month conditional sentence after he was caught on camera hurling racial slurs at a bystander in Vancouver. The judge said the incident could have been used to craft a sentence aimed at healing the community. (Ravi Duhra/YouTube)
The presiding judge noted that the Criminal Code definition of assault includes when a person “‘attempts or threatens, by an act or gesture, to apply force to another person’ and that other person reasonably believes that the accused has the ability to complete the act.”
Judge Kenneth Skilnick accepted the proposition — reluctantly. He said he hoped that in the future, the sentence to a similar case might involve the offender making amends to the community in question and perhaps be ordered to enter into some kind of “victim-offender reconciliation process.”
According to Skilnick’s judgment, Corbett argued he hadn’t intended to “publicize his racially offensive outburst so prominently” and he didn’t think the publicity it received should be held against him.
Skilnick didn’t agree.
“We live in an age where almost everyone has a cellphone and almost every cellphone has the capacity to video-record conduct. In addition to the moral responsibility for all of us to treat our fellow citizens with respect, the ubiquitous nature of video-recording is an additional reason for people to conduct themselves properly and lawfully in public.
“Now, more than ever, the rest of the world is watching what we all do.”
PHOENIX (AP) — Arizona voters have approved a constitutional amendment guaranteeing abortion access up to fetal viability, typically after 21 weeks — a major win for advocates of the measure in the presidential battleground state who have been seeking to expand access beyond the current 15-week limit.
Arizona was one of nine states with abortion on the ballot. Democrats have centered abortion rights in their campaigns since the U.S. Supreme Court overturned Roe v. Wade in 2022. Abortion-rights supporters prevailed in all seven abortion ballot questions in 2022 and 2023, including in conservative-leaning states.
Arizona for Abortion Access, the coalition leading the state campaign, gathered well over the 383,923 signatures required to put it on the ballot, and the secretary of state’s office verified that enough were valid. The coalition far outpaced the opposition campaign, It Goes Too Far, in fundraising. The opposing campaign argued the measure was too far-reaching and cited its own polling in saying a majority of Arizonans support the 15-week limit. The measure allows post-viability abortions if they are necessary to protect the life or physical or mental health of the mother.
Access to abortion has been a cloudy issue in Arizona. In April, the state Supreme Court cleared the way for the enforcement of a long-dormant 1864 law banning nearly all abortions. The state Legislature swiftly repealed it.
Voters in Arizona are divided on abortion. Maddy Pennell, a junior at Arizona State University, said the possibility of a near-total abortion ban made her “depressed” and strengthened her desire to vote for the abortion ballot measure.
“I feel very strongly about having access to abortion,” she said.
Kyle Lee, an independent Arizona voter, does not support the abortion ballot measure.
“All abortion is pretty much, in my opinion, murder from beginning to end,” Lee said.
The Civil War-era ban also shaped the contours of tight legislative races. State Sen. Shawnna Bolick and state Rep. Matt Gress are among the handful of vulnerable Republican incumbents in competitive districts who crossed party lines to give the repeal vote the final push — a vote that will be tested as both parties vie for control of the narrowly GOP-held state Legislature.
Both of the Phoenix-area lawmakers were rebuked by some of their Republican colleagues for siding with Democrats. Gress made a motion on the House floor to initiate the repeal of the 1864 law. Bolick, explaining her repeal vote to her Senate colleagues, gave a 20-minute floor speech describing her three difficult pregnancies.
While Gress was first elected to his seat in 2022, Bolick is facing voters for the first time. She was appointed by the Maricopa County Board of Supervisors to fill a seat vacancy in 2023. She has not emphasized her role in the repeal vote as she has campaigned, instead playing up traditional conservative issues — one of her signs reads “Bolick Backs the Blue.”
Voters rejected a measure to eliminate retention elections for state Superior Court judges and Supreme Court justices.
The measure was put on the ballot by Republican legislators hoping to protect two conservative justices up for a routine retention vote who favored allowing the Civil War-era ban to be enforced — Shawnna Bolick’s husband, Supreme Court Justice Clint Bolick, and Justice Kathryn Hackett King. Since the measure did not pass, both are still vulnerable to voter ouster, though those races hadn’t been decided by early Wednesday morning.
Under the existing system, voters decide every four to six years whether judges and justices should remain on the bench. The proposed measure would have allowed the judges and justices to stay on the bench without a popular vote unless one is triggered by felony convictions, crimes involving fraud and dishonesty, personal bankruptcy or mortgage foreclosure.
OMAHA, Neb. (AP) — Nebraska voters supported a measure Tuesday that enshrines the state’s current ban on abortions after the 12th week of pregnancy in the state constitution, and they rejected a competing measure that sought to expand abortion rights. Nebraska was the first state to have competing abortion amendments on the same ballot since the U.S. Supreme Court overturned Roe v. Wade in 2022, ending the nationwide right to abortion and allowing states to decide for themselves. The dueling measures were among a record number of petition-initiated measures on Nebraska’s ballot Tuesday.
What were the competing abortion measures?
A majority of voters supported a measure enshrining the state’s current ban on abortion after the first 12 weeks of pregnancy in the state constitution. The measure will also allow for further restrictions. Last year, the Legislature passed the 12-week ban, which includes exceptions for cases of rape and incest and to protect the life of the pregnant woman.
Voters rejected the other abortion measure. If they had passed it by a larger number of “for” votes than the 12-week measure, it would have amended the constitution to guarantee the right to have an abortion until viability — the standard under Roe that is the point at which a fetus might survive outside the womb. Some babies can survive with medical help after 21 weeks of gestation.
Abortion was on the ballot in several other states, as well. Coming into the election, voters in all seven states that had decided on abortion-related ballot measures since the reversal of Roe had favored abortion rights, including in some conservative states.
Who is behind the Nebraska abortion measures?
The 12-week ban measure was bankrolled by some of Nebraska’s wealthiest people, including Republican Sen. Pete Ricketts, who previously served as governor and donated more than $1.1 million. His mother, Marlene Ricketts, gave $4 million to the cause. Members of the Peed family, which owns publishing company Sandhills Global, also gave $1 million.
The effort was organized under the name Protect Women and Children and was heavily backed by religious organizations, including the Nebraska Catholic Conference, a lobbying group that has organized rallies, phone banks and community townhalls to drum up support for the measure.
The effort to enshrine viability as the standard was called Protect Our Rights Nebraska and had the backing of several medical, advocacy and social justice groups. Planned Parenthood donated nearly $1 million to the cause, with the American Civil Liberties Union, I Be Black Girl, Nebraska Appleseed and the Women’s Fund of Omaha also contributing significantly to the roughly $3.7 million raised by Protect Our Rights.
What other initiatives were on Nebraska’s ballot?
Nebraska voters approved two measures Tuesday that will create a system for the use and manufacture of medical marijuana, if the measures survive an ongoing legal challenge.
The measures legalize the possession and use of medical marijuana, and allow for the manufacture, distribution and delivery of the drug. One would let patients and caregivers possess up to 5 ounces (142 grams) of marijuana if recommended by a doctor. The other would create the Nebraska Medical Cannabis Commission, which would oversee the private groups that would manufacture and dispense the drug.
Those initiatives were challenged over allegations that the petition campaign that put them on the ballot broke election rules. Nebraska’s attorney general said supporters of the measures may have submitted several thousand invalid signatures, and one man has been charged in connection with 164 allegedly fraudulent signatures. That means a judge could still invalidate the measures.
Voters also opted Tuesday to repeal a new conservative-backed law that allocates millions of dollars in taxpayer money to fund private school tuition.
Finally, they approved a measure that will require all Nebraska employers to provide at least 40 hours of paid sick leave to their employees.
WASHINGTON (AP) — Voters in Missouri cleared the way to undo one of the nation’s most restrictive abortion bans in one of seven victories for abortion rights advocates, while Florida, Nebraska and South Dakota defeated similar constitutional amendments, leaving bans in place.
Abortion rights amendments also passed in Arizona, Colorado, Maryland and Montana. Nevada voters also approved an amendment, but they’ll need to pass it again it 2026 for it to take effect. Another that bans discrimination on the basis of “pregnancy outcomes” prevailed in New York.
The results include firsts for the abortion landscape, which underwent a seismic shift in 2022 when the U.S. Supreme Court overturned Roe v. Wade, a ruling that ended a nationwide right to abortion and cleared the way for bans to take effect in most Republican-controlled states.
They also came in the same election that Republican Donald Trump won the presidency. Among his inconsistent positions on abortion has been an insistence that it’s an issue best left to the states. Still, the president can have a major impact on abortion policy through executive action.
In the meantime, Missouri is positioned to be the first state where a vote will undo a ban on abortion at all stages of pregnancy, with an amendment that would allow lawmakers to restrict abortions only past the point of a fetus’ viability — usually considered after 21 weeks, although there’s no exact defined time frame.
But the ban, and other restrictive laws, are not automatically repealed. Advocates now have to ask courts to overturn laws to square with the new amendment.
“Today, Missourians made history and sent a clear message: decisions around pregnancy, including abortion, birth control, and miscarriage care are personal and private and should be left up to patients and their families, not politicians,” Rachel Sweet, campaign manager of Missourians for Constitutional Freedom, said in a statement.
Roughly half of Missouri’s voters said abortion should be legal in all or most cases, according to AP VoteCast, a survey of more than 2,200 of the state’s voters. But only about 1 in 10 said abortion should be illegal in all cases; nearly 4 in 10 said abortion should be illegal in most cases.
Bans remain in place in three states after votes
Florida, Nebraska and South Dakota became the first states since Roe was overturned where abortion opponents prevailed on a ballot measure. Most voters supported the Florida measure, but it fell short of the required 60% to pass constitutional amendments in the state. Most states require a simple majority.
The result was a political win for Gov. Ron DeSantis, a Republican with a national profile, who had steered state GOP funds to the cause. His administration has weighed in, too, with a campaign against the measure, investigators questioning people who signed petitions to add it to the ballot and threats to TV stations that aired one commercial supporting it.
Marjorie Dannenfelser, president of the national anti-abortion group SBA Pro-Life America, said in a statement that the result is “a momentous victory for life in Florida and for our entire country,” praising DeSantis for leading the charge against the measure.
The defeat makes permanent a shift in the Southern abortion landscape that began when the state’s six-week ban took effect in May. That removed Florida as a destination for abortion for many women from nearby states with deeper bans and also led to far more women from the state traveling to obtain abortion. The nearest states with looser restrictions are North Carolina and Virginia — hundreds of miles away.
“The reality is because of Florida’s constitution a minority of Florida voters have decided Amendment 4 will not be adopted,” said Lauren Brenzel, campaign director for the Yes on 4 Campaign said while wiping away tears. “The reality is a majority of Floridians just voted to end Florida’s abortion ban.”
In South Dakota, another state with a ban on abortion throughout pregnancy with some exceptions, the defeat of an abortion measure was more decisive. It would have allowed some regulations related to the health of the woman after 12 weeks. Because of that wrinkle, most national abortion-rights groups did not support it.
Voters in Nebraska adopted a measure that allows more abortion restrictions and enshrines the state’s current 12-week ban and rejected a competing measure that would have ensured abortion rights.
Other states guaranteed abortion rights
Arizona’s amendment will mean replacing the current law that bans abortion after the first 15 weeks of pregnancy. The new measure ensures abortion access until viability. A ballot measure there gained momentum after a state Supreme Court ruling in April found that the state could enforce a strict abortion ban adopted in 1864. Some GOP lawmakers joined with Democrats to repeal the law before it could be enforced.
In Maryland, the abortion rights amendment is a legal change that won’t make an immediate difference to abortion access in a state that already allows it.
It’s a similar situation in Montana, where abortion is already legal until viability.
The Colorado measure exceeded the 55% of support required to pass. Besides enshrining access, it also undoes an earlier amendment that barred using state and local government funding for abortion, opening the possibility of state Medicaid and government employee insurance plans covering care.
A New York equal rights law that abortion rights group say will bolster abortion rights also passed. It doesn’t contain the word “abortion” but rather bans discrimination on the basis of “pregnancy outcomes, and reproductive healthcare and autonomy.” Sasha Ahuja, campaign director of New Yorkers for Equal Rights, called the result “a monumental victory for all New Yorkers” and a vote against opponents who she says used misleading parental rights and anti-trans messages to thwart the measure.
The results end a win streak for abortion-rights advocates
Until Tuesday, abortion rights advocates had prevailed on all seven measures that have appeared on statewide ballots since the fall of Roe.
The abortion rights campaigns have a big fundraising advantage this year. Their opponents’ efforts are focused on portraying the amendments as too extreme rather than abortion as immoral.
Currently, 13 states are enforcing bans at all stages of pregnancy, with some exceptions. Four more bar abortion in most cases after about six weeks of pregnancy — before women often realize they’re pregnant. Despite the bans, the number of monthly abortions in the U.S. has risen slightly, because of the growing use of abortion pills and organized efforts to help women travel for abortion. Still, advocates say the bans have reduced access, especially for lower-income and minority residents of the states with bans.
The issue is resonating with voters. About one-fourth said abortion policy was the single most important factor for their vote, according to AP VoteCast, a sweeping survey of more than 110,000 voters nationwide. Close to half said it was an important factor, but not the most important. Just over 1 in 10 said it was a minor factor.
The outcomes of ballot initiatives that sought to overturn strict abortion bans in Florida and Missouri were very important to a majority of voters in the states. More than half of Florida voters identified the result of the amendment as very important, while roughly 6 in 10 of Missouri’s voters said the same, the survey found.
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Associated Press reporters Hannah Fingerhut and Amanda Seitz contributed to this article.
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This article has been corrected to reflect in the ‘other states’ section that Montana, not Missouri, currently allows abortion until viability.
