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Article Excerpt
Introduction
The matter of the victim's identity as a member of a targeted (minority) group is a central and taken-for-granted feature of Canadian anti-hate laws. Our critical examination of two hate crimes, however, shows that the victim's identity is far from easily defined. Rather, following observations gleaned from queer theory and post-structuralism, identity proves fluid and ill defined. We study two "gay bashings," the murder of Alain Brousseau in Ottawa and of Aaron Webster in Vancouver. In exploring legal and community mobilizing around and reactions to these cases, we argue that vague concepts such as "identity" do not fit well with law's need to prove facts "beyond a reasonable doubt." Instead of establishing the truth of a victim's identity, our case studies illustrate different ways identities are written and rewritten by actors involved in these cases.
Canadian hate-crime law
In Canada, hate crime is governed under two separate sections of the Criminal Code. Sections 318 and 319 criminalize the public communication of statements intended to incite hatred or genocide against an identifiable group. Section 718.2, the newest anti-hate legislation (and the subject of our inquiry), directs a sentencing judge to consider, among other factors, motivation based on bias or hate against an identifiable group as an aggravating factor in the commission of a crime. In both pieces of legislation, the victim's identity as a member of a targeted and protected group is central to the application of the law.
We are interested in two questions regarding these laws. First, how is this identity established? Second, who gets to decide on this identity? These questions are important because they challenge the assumption that identity can be proven and known: that it is somehow essential. This challenge assists in our critique of these laws by identifying the problematic of attempts to reify legal identities external to the individual or group in question.
True identities
Section 318 of the Criminal Code defines an identity group as "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation." Section 718.2(a)(i) takes an even broader definition, including, "race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor." The common law tradition allows for judicial interpretation of broad legislative definitions through the doctrine of precedent. While both sections have been subject to interpretation through precedent-setting cases, Martin's annotated Criminal Code for 2005 (the most recent available) indicates no interpretations of identity and group membership (Greenspan and Rosenberg 2005). The assumption that there is no need to explore the meaning of identity and group membership is reflected in debates surrounding these laws. For example, in presenting the s. 718.2 amendment to the House of Commons, then Justice Minister Alan Rock noted that sexual orientation is so clear and obvious that it requires no definition:
We have referred to sexual orientation [in the proposed legalisation]. We have not found it necessary to define the term because its meaning is clear. Since 1977 the term has been included in human rights legislation in eight provinces and territories in Canada. There has never been any difficulty in interpreting or defining or applying that term as it is found in those provincial and territorial statutes. No question has ever been raised about what it means. (Canada, HC 1995: 1535)
This assumption of clarity speaks to broader, comfortable assumptions about the immutability of identity as it is understood and presented in these laws. Identity categories stemming from race, ethnicity, sexuality, or, it seems, "any other similar factor," need no definition because they are somehow obvious, natural facts and easily read in law.
Critical scholars, however, would have us understand identity quite differently. Rather than being fixed and essential, the link between words (signifiers) and the concepts or things they represent (signifieds) is both relational and mutable (Derrida 1991). That is, there is no fixed or absolute link between a word and its meaning. This concept is familiar in a number of critical theoretical movements, including queer theory. While queer theory emerges in part from the gay liberation movement (GLM), it pushes the bounds of thinking about sexuality well beyond what the liberationists imagined. Liberationists took gay and lesbian identities as the core of a movement that sought to normalize what was previously pathologized and vilified. Coming out and claiming a gay or lesbian sexual identity were seen as crucial political acts for the emancipatory agenda.
It was from this platform that queer theory and queer politics were born. Queer theory is a...
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