Gardiner Hearings & Hate Motivated Offences. (Relevant sections of the Criminal Code include s. 430 (4.1); s. 718.2; s. 724). Qualifying the Expert/Admissibility of the Expert Opinion.
(Relevant sections of the Criminal Code include
s. 430 (4.1); s. 718.2; s. 724)
The opinion is based on knowledge acquired about a particular subculture through years of study, training, and experience; scientific validity is not a condition precedent to the admissibility of expert opinion evidence (R v Abbey par 109, 110);
The test for admissibility can be framed as follows:
Has the witness’ experience permitted the witness to develop a specialized knowledge sufficiently reliable, to justify placing an opinion on the potential meaning of the symbols and other indicia of white supremacist philosophy;
Defense submissions regarding the depth of the expert’s experience will likely go to weight of the evidence and not its threshold admissibility.
The constellation of factors: nature of slurs at scene, tattoos, etc, demonstrate that defendant subscribes to a neo-Nazi or white supremacist philosophy which promotes hate and that this offense was committed consistent with that belief system. R v Soles (1998) 40 W.C.B. (2d) 343;
Where a crime is committed by a group or gang of like minded individuals “together carrying into effect their deplorable aims there is no room for nice distinctions about degrees of participation”. R v MloszewskiB.C.J. No. 2765 par. 18 , par. 27;
Any suggestion that the defendant could not be found culpable on the issue of hate motivation since his group did not in fact direct racial slurs and violence to the victim’s own particular ethnic group is without merit;
The requirement to prove hate motivation (see 718.2) is broadly worded. It would be inconsistent with the spirit of legislation and protection afforded by penalizing hate crime to give effect to such a submission.
Community Impact statements are relevant and admissible; their admissibility is properly grounded in a reading of 718.2 which directs the court to take into account hate motivation without in any way limiting or specifying that the hate motivation be directed towards the particular victim of the offense;
Further, section 723 (2) explicitly requires the Court to hear any relevant evidence presented before imposition of sentence. Impact on the community is relevant to the following principles of sentencing: seriousness of the crime, denunciation, deterrence, and promoting a sense of responsibility 718 (a) (b) (e). Section 718 (f) specifically requires the court to consider the impact of the harm done to the victim and to the community;
R. v. Lelas,  O.J. No. 1587 (C.A.); R. v. Soles,  O.J. No. 5061 (Gen. Div.); R. v. Sandouga,  A.J. No. 1042 (C.A); R. v. El-Merhebi,  Q.J. No. 110 (Ct. of Que. Crim. Div.); R. v. Miloszewski,  B.C.J. No. 2710; R v McDonough (2006) 209 C.C.C.(3d) 547;
Objection may be taken to the form of admission (ie the tendering of the statement) which may, like other types of evidence in dispute, trigger the provisions of section 724 and entitle the opposing party to cross examine the witness who authored the statement (s. 724 (3) (c).