FACL BC Case Commentary: BC Provincial Court Tackles Anti-Asian Hate Crimes, Recognizes Role of COVID-19

Introduction

Diversity is one of Canada’s greatest strengths, and with May designated as Asian Heritage Month, it is a time to celebrate the long and rich history of Asian Canadians and their contributions to our country. It is also a time to acknowledge the racism faced by Asian Canadians that continues to this day, particularly in light of the COVID-19 pandemic and the upsurge in hate crimes and discrimination that followed (“Anti-Asian Hate”). The pandemic served to amplify pre-existing prejudice and stereotypes about those of Asian descent, exasperated by misinformation and xenophobia. Vancouver, in specific, was named “the anti-Asian hate crime capital of North America” in 2021. 

While the worst days of the pandemic are behind us, it is nevertheless important to recognize that Anti-Asian Hate and the racist and discriminatory views that perpetuate it continue to persist. Although reported hate crimes in BC appear to be dropping, as noted in a recent CBC article, many Asian Canadians continue to experience discrimination and have simply given up reporting these incidents to the police. As a historically marginalized group, the underreporting of such crimes suggests a decreased trust amongst Asian Canadians with the justice system. The unwillingness of Asian Canadian victims to report hate crimes, in conjunction with the decrease in reported hate crimes since the pandemic, may indicate that current hate crime statistics do not reflect the full extent of Anti-Asian Hate. 

As we prepare to celebrate Asian Heritage Month, FACL BC wishes to highlight two decisions where Anti-Asian Hate was considered to be a key factor and where the court took judicial notice of the heightened vulnerability and marginalization of Asians as a result of the COVID-19 pandemic:

1. R. v. Castonguay, 2021 BCPC 315; and

2. R. v. Bethune and Secreve, 2022 BCPC 243. 

These cases highlight the insidious nature of discrimination and hate crimes against Asian Canadians, but also an increased sensitivity of the courts to the prevalence of Anti-Asian Hate during the pandemic. In both Castonguay and Bethune and Secreve, the courts acknowledged the social context in which the crimes took place and the impact they had upon the Asian Canadian community during a particularly vulnerable time. By considering the social context, the courts were able to recognize the significant impact of the crimes on the Asian community and acted accordingly to maintain the public interest. This commentary aims to bring attention to the role courts have played in recognizing and protecting vulnerable and marginalized communities, as well as identifying areas where the justice system can continue to improve.  

R. v. Castonguay

Facts:

On December 29, 2021, Mr. Castonguay pleaded guilty to wilfully committing mischief by causing damage while being motivated by bias, prejudice, or hate towards persons of Chinese ethnic origin or descent, an offence contrary to s. 430(4.1) of the Criminal Code.

The incident occurred on April 2, 2020, when Mr. Castonguay visited the Chinese Cultural Centre (the “Centre”) in Vancouver and defaced several of its window panes with racist and hateful comments. The messages espoused the killing of persons of Chinese origin, referencing Hitler's annihilation of the Jewish persons in the Holocaust. Mr. Castonguay’s messages also called for the forced removal and exclusion of Chinese people from Canada, claiming they were all infected by COVID-19. The messages were discovered by the directors of the Centre the following day, resulting in the closure of the building and causing its staff members, volunteers, and visitors to feel unsafe.

Judgment and Reasoning:

The Crown sought an effective sentence of nine months of imprisonment against Mr. Castonguay, followed by a three‑year probationary period. However, due to a significant delay in Mr. Castonguay’s sentencing, the defence argued that he should be given a reduced sentence, suggesting there might have been a different outcome had the sentencing taken place earlier.

In determining to what extent Mr. Castonguay should be given the benefit of a reduced sentence, Judge H. Dhillon relied upon the principle of proportionality in imposing a fair, fit, and principled sanction. Taking into consideration the gravity of the harm caused by Mr. Castonguay’s messages to the staff members and attendees of the Centre, Judge H. Dhillon found that the harm extended to society at large, negatively affecting all persons who identify as Chinese as well as all persons of Asian background or descent. Judge H. Dhillon also acknowledged the social context in which the incident took place, taking judicial notice of the history of racism against the Chinese community, the importance of the Centre to their cultural heritage and community, and the increased vulnerability of the Chinese community due to misinformation about their connection to COVID-19. 

Despite the written and verbal statement Mr. Castonguay provided to the court, in which he expressed remorse for his actions, Judge H. Dhillon found that the social context and circumstances of the offence caused the aggravating factors of the case to outweigh the mitigating factors. Consequently, Judge H. Dhillon sentenced Mr. Castonguay to eight months of imprisonment, followed by a three‑year probationary period. Considering the gravity of the harm caused by Mr. Castonguay, Judge H. Dhillon concluded that he would have been given a similar sentence had the sentencing occurred earlier.

Takeaways:

Judge Dhillon's decision demonstrates the importance of considering the social context when assessing the mitigating or aggravating factors of a criminal act, especially when assessing the gravity of the harm caused by the offender to the victims. By taking judicial notice of the social context in which the incident occurred, Judge Dhillon acknowledged the historic struggle of Chinese Canadians against racism and the significance of the Centre in the Chinese community. Additionally, by taking into account the recent upsurge in Anti-Asian Hate, Judge H. Dhillon recognized that the vulnerability of the Chinese community allowed Mr. Castonguay’s actions to have far-reaching effects on all persons of Asian background or descent, necessitating a denunciatory sentence. 

It is worth noting that Judge Dhillon was the first female South Asian judge to be appointed in BC. Her nuanced reasoning in Castonguay may have been informed by her own experiences as an Asian Canadian, which likely played a role in her ability to recognize and express the significance of Mr. Castonguay’s actions and the impact they had on the Asian community. Her decision is a salient reminder of the importance of diversity on the bench and the value it can bring to the Canadian justice system and the public.

R. v. Bethune and Secreve

Facts:

In this case, the defendants Mr. Eric Bethune and Ms. Astrid Maria pleaded guilty to committing mischief for wilfully obstructing, interrupting, and/or interfering with the lawful use, enjoyment, or operation of the property contrary to s. 430(4) of the Criminal Code. 

The defendants were patrons of a cafe in Richmond and failed to abide by the COVID protocols (e.g. seating restrictions) that the cafe had in place at the time. The defendants were asked by an employee multiple times to change seats. After refusing their requests, the defendants threw a cup at the employee and made numerous anti-Chinese comments toward the cafe employees before leaving. Despite the various discriminatory comments uttered during the incident, the defendants denied that their mischief was motivated by any bias, prejudice, or hate.

Judgement and Reasoning:

Judge Vandor found that it would not be in the public interest to grant a discharge and held that a suspended sentence with 12 months of probation for Mr. Bethune and Ms. Secreve was more appropriate. In sentencing, Judge Vandor of the Provincial Court of British Columbia found a number of aggravating factors that favoured a stronger sentence, including:

• Mr. Bethune and Ms. Secreve perceived both the cafe employees to be of Chinese race or ethnic origin. 

• The defendants’ comments and actions were motivated by anti-Chinese hate/bias/prejudice. Mr. Bethune told the employee, “The Coronavirus is you”. Judge Vandor found that by doing so, he associated the employee with the virus and that it was a dehumanizing expression that called into question whether the employee was a human being. He noted, following Castonguay, that this kind of speech vilifies the targeted group by blaming its members (i.e. people of Chinese and Asian descent) for the current COVID-19 pandemic and other problems in society.

• The significant impact the incident had on the employee. The employee testified that she was afraid of walking on the street and making eye contact with people, especially Caucasian people, because she was afraid that they would hurt her too. She eventually stopped working at the cafe after three months because of the incident.

Judge Vandor, citing the various examples of the defendants’ feelings, beliefs, and attitudes towards people of Asian and Chinese descent, held that the principles of general and specific deterrence and denunciation called for a suspended sentence, which more appropriately addressed the defendants’ actions and the motivations behind those actions.

Takeaways:

Like Castonguay, this case recognizes the increased vulnerability of Canadians because of misinformation directed at persons who are perceived to be of Chinese origin and the blame towards them for the COVID-19 pandemic as aggravating factors for sentencing. Following Castonguay, Judge Vandor readily acknowledged the hardships and racism that people of Chinese, and generally Asian, descent face as a result of the pandemic. By facing those issues head-on, the court was able to ground its decision in the historical and cultural context necessary to understand the harm that was caused and to provide a proportional sentence. 

Conclusion:

How courts determine the different degree or kind of punishment in respect of an offence are dependent on the facts and circumstances of each case, as well as the principles of deterrence and denunciation set out in s. 718 of the Criminal Code. As seen in both Castonguay and Bethune and Secreve, the broader social contexts of each case were additionally taken into consideration when determining appropriate sentences for the offenders. 

Judge H. Dhillon and Judge Vandor both acknowledged the increased vulnerability of the Chinese and Asian community due to the COVID-19 pandemic, finding that the harm done to victims extended to society at large, negatively impacting all persons of Asian descent. As both cases included offenders targeting persons of Chinese ethnic origin or persons whom they perceived to be of Chinese ethnic origin during a time of increased vulnerability and a rise in Anti-Asian Hate, both judges arrived at the finding that the social context of the offences constituted a significant aggravating factor. The judges also found that mitigating the offenders’ sentences would be adverse to the principles of deterrence and denunciation. As the actions of the offenders in both cases contributed to the prevalence of COVID-19 misinformation and Anti-Asian Hate, denunciatory sentences were imposed to send the message that the justice system will not tolerate this type of criminal behaviour. 

Both cases may indicate that courts are more likely to impose denunciatory sentences in cases involving COVID-19-related discrimination against people of Asian descent, as judges must consider the social context of the “profound impact these kinds of criminal acts have on members of vulnerable communities” (Castonguay at para. 35). In other words, the above cases show that the social context of Anti-Asian hate crimes is especially relevant where COVID-19-related discrimination is involved. However, such reliance by the courts on COVID-19 as a justification for the increased protection of the Asian community may suggest that Asians are only considered “vulnerable communities” in the context of COVID-19-related discrimination, while ignoring the long history of racism against people of Asian descent that continues to this day. This may play a role in the low rate of reported hate crimes by pan-Asians in Canada, as incidents of Anti-Asian Hate may not involve COVID-19-related discrimination or be as overt and obviously racist as the incidents underlying the cases above. 

The Canadian justice system must acknowledge that the vulnerability of the Asian community is not limited to COVID-19-related discrimination. In order to effectively uphold the principles of deterrence and denunciation, courts must be willing to apply similar reasoning in all cases of racial discrimination against those of Asian descent, not just those related to COVID-19. Just as the process of sentencing “must be situated both in the present day but also with an eye to the context and history faced by Chinese Canadians in Canada” (Castonguay at para. 15), the justice system must be similarly flexible in addressing the various forms of stereotypes and prejudices, whether direct or indirect, faced by the Asian community. 

Federation of Asian Canadian Lawyers (British Columbia) Society

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