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Standing Committee on Justice and Human Rights


NUMBER 047 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Tuesday, February 21, 2017

[Recorded by Electronic Apparatus]

  (1530)  

[English]

     Welcome, ladies and gentlemen. We're going to call to order this meeting of the Standing Committee on Justice and Human Rights as we continue our study of Bill C-305, an act to amend the Criminal Code (mischief).
    I would like to take this opportunity to welcome Mr. Arnold to our committee for the first time—welcome, Mr. Arnold—and Ms. Sgro for the first time as well. Welcome, Ms. Sgro.
    I'm sorry it took so long.
    It's a pleasure having you both here.
    It's also a pleasure having our witnesses today. Representing B'nai Brith Canada, we have Michael Mostyn, the chief executive officer.
    Welcome, Mr. Mostyn.
    From the Centre for Israel and Jewish Affairs, we have Richard Marceau, the general counsel and senior political advisor.

[Translation]

    Mr. Marceau, it's a pleasure to have you.

[English]

    As we agreed at the beginning, we're going to start with Mr. Mostyn.
    Mr. Mostyn, the floor is yours.
    Established in
    1875, B'nai Brith is Canada's most senior membership-based Jewish organization. Through its league for human rights, it is the premier advocate for Canada's grassroots Jewish community.
    B'nai Brith operates a hotline to assist the victims of anti-Semitism and racism on a daily basis.
    We are here today to discuss Bill C-305, whose aim is to close a gap in the Criminal Code by extending the legal protection from mischief afforded to houses of worship to a wide variety of other property critical to our community lives.
    It is very hard to come by proper statistics in this matter, and the case law regarding how hate-motivated acts of mischief against religious sites are prosecuted is confusing. I will further elaborate on that shortly.
    There is no question that this is a very well-intentioned bill, and it is indeed very heartening to see all-party support against the hate-fuelled bigotry that has been receiving more media attention over the last number of months. In fact, the backgrounds of the many diverse groups that have spoken in favour of this bill further reflects the multicultural nature of our great country.
    Similarly, the Jewish community has always sought strong laws to protect all Canadians from all identifiable backgrounds from the purveyors of hatred. Although it may sound hard to believe, given our relatively small numbers in Canada, the Jewish community remains the most targeted community group of hate crimes in this country. StatsCan reported in 2013 that there were 181 hate-motivated crimes targeting the Jewish religion reported by police, or an estimated rate of 54.9 police-reported hate crimes per 100,000. By comparison, police reported 65 crimes motivated by hatred against the Muslim religion in 2013, representing an estimated rate of 6.2 hate crimes per 100,000.
    Assuming that the Canadian Jewish population in 2013 was 350,000, and the Canadian Muslim population was approximately one million, taking the respective sizes of the two communities into account, Canadian Jews were approximately eight times more likely than Canadian Muslims to be the victims of a hate crime in that year.
    B'nai Brith's annual audit of anti-Semitic incidents shows that anti-Semitism in Canada has remained relatively constant since 2011. With no active conflict occurring in Israel in 2015, 1,277 incidents were reported that year. Vandalism declined to a 15-year low in that year—we had 136 incidents reported—considerably off the five-year average.
    Just yesterday in Toronto it was reported that units in a condo building, home to a large number of Jewish people, were the victims of anti-Semitism. Yellow Post-It Notes were slapped on some of their doors. Certain notes had pictures of Nazi swastikas, while others read, “No Jews”. Some of the residents also had their mezuzahs stolen. A mezuzah is affixed to the doorpost of every Jewish home and holds religious prayers from the Torah inside the case.
    However, even with the amendments proposed by Bill C-305, the proposed subsection would not apply to this particular hate crime of mischief because a private condominium is not within the scope of the properties being considered for amendment. Jewish individuals are perhaps somewhat unique in this way, as the mezuzah is a year-round religious act of self-identification at their home. However, a strong argument can be made that a hate crime at one's home is even more traumatic to the victim than one in a communal setting.
    Recently, B'nai Brith tried unsuccessfully to lay charges in another mischievous act of bias against our community. Canadians for Justice and Peace in the Middle East, or CJPME, had placed stickers promoting the boycott of Israel on items for sale in stores across Canada, a clear case of bias based on national origin. There have been to date no mischief charges laid, despite CJPME's actually filming themselves doing it, which is why we complained to police, since there was evidence in the video of the perpetrator. We wrote to the federal government in this matter and we are still awaiting an answer.
    The police advised us that their hands were tied unless the store owners themselves were to complain, but that is not correct. Even though the store owner is the real victim in these instances, the entire Jewish community of Canada was victimized by these acts. Sadly, our community has been ignored in this case.
    It is not enough for us to want justice to be done. Justice must be done, and justice must ultimately be seen to be done by all Canadians to retain high levels of societal support for our criminal justice system.
    Generally speaking in Canada, the Criminal Code contains a number of different and long-standing offences to deal with the general topic of hate crime. It is a hate crime in Canada if an act is committed to intimidate, harm, or terrify not only a person, but an entire group of people to which the victim belongs. The act has to be motivated by hate, and can involve intimidation, harassment, physical force, or threat of physical force.
    In February of 2016 B'nai Brith exposed an editorial in Al Forqan, an Arabic-language newspaper in Windsor, that described attacks against civilians in Israel as a sacred duty of jihad. No charges were laid.

  (1535)  

     B'nai Brith has spoken out against Alfred Schaefer for online videos in which he glorifies Adolf Hitler, describes Jewish people as parasites, and accuses them of conspiring to eliminate the European race. No charges were laid in Canada. Authorities in Germany recently laid charges against Schaefer after B'nai Brith alerted German officials. There are many other examples.
    The mischief section of the Criminal Code covers hate-motivated mischief to religious property in subsection 430(4.1) by defining specific property as religious, and provides for a harsher sentence than mischief involving other property.
    The proposed amendments add gender identity or sexual orientation to the motivation for bias in subsection 430(4.1). The proposed new subsection 430(4.101) also proposes adding further properties to the definition in the subsection, so if a similar act of hate is committed against any building primarily used as a university or college, day care centre, community centre, or a seniors' residence, the punishment provisions of section 430 would also apply.
    B'nai Brith is one of the premier providers of affordable housing for seniors in Canada, so better than most, we certainly appreciate the thought behind this bill on behalf of our more than 1,000 residents. But these questions remain: what will the potential impact be in the real world from these proposed amendments, and how will it keep people more safe from targeted acts of hate?
    Some of the confusion in the application of the law is likely the result of section 718.2 of the Criminal Code, which encourages judges to consider whether the crime was motivated by hate of the victim's race, national or ethnic origin, language, colour, religion, etc. This section can be used to increase the sentencing provisions of general mischief.
    Oddly, after an exhaustive search, we were able to find only a single case on Westlaw of anyone being convicted or sentenced under subsection 430(4.1), the existing religious property provision. In the case of Re Zehairi, the accused was convicted of uttering death threats and spray painting a number of churches under subsection 430(4.1). His trial was unreported, and he was found not guilty by reason of mental disorder.
    There are also very few reported cases of mischief to property including aggravated factors as described in section 718.2. Some of those cases would not have access to the amended provision being considered by this committee, such as the case of R v. Mackenzie, in which the accused pled guilty to willful promotion of hatred and mischief after he spray-painted “Kill Muslims” and “Kill Syrians” in various areas of Calgary with large Muslim and Syrian populations. Paragraph 718.2(a)(1) was mentioned as an aggravating factor for the mischief offences in that case.
    However, the confusion in terms of what charges are laid is illustrated well in the case of R v. Coleman, where the accused pled guilty to a variety of offences that took place in 2010, including spray-painting threatening messages on a mosque. He was convicted and sentenced for mischief with hate as an aggravating factor, but there was no charge under subsection 430(4.1) even though it clearly applied to the facts of that case.
    Why aren't there more prosecutions of mischief to religious property on the record? There might be no instances of mischief to religious property in Canada. That would be wonderful, but I think we can all acknowledge this is not true. Perhaps local police forces and crown attorneys prosecuted under the general mischief section and used sentencing provisions as an aggravating factor because they believe perhaps it might be easier to obtain a conviction by not dealing with intent as an element of the offence.
    It is very likely that there were guilty pleas made by accused, but we were unable to see this data because it is not recorded by any of the case law recording companies. Perhaps the number of incidents was low or accused persons were not caught or prosecuted. Perhaps police did not lay charges or evidence of hate bias was not put forward.
    Another issue with the wording of this amendment is this. What does it mean to say that the impugned property has to be “primarily used for” in the various subsections? There are public schools that are used after hours by religious groups that rent out public space for, say, Sunday school programming. The public school is not primarily used for religious instruction, but certainly, if the amendments are to protect religious individuals and groups from hate, then why would it matter that a public school is not being primarily used by those individuals?
    There are serious concerns about anti-Semitism and other forms of systemic racism in Canada. Canadians want to see charges and successful prosecutions when hate is a motivating bias in criminal acts towards identifiable minority groups. If this bill does not in actual fact increase the scope of the law to protect targeted communities from hate because subsection 430(4.1) as it currently exists is not being regularly used, then we must ask ourselves why we are considering these amendments. There may be very good reasons, and these amendments may, indeed, fill a true gap in the law, but it is not obvious from an analysis of the existing case law.
    I do have some recommendations, but perhaps if there are questions later, I can get to those.
    Thank you.

  (1540)  

    Thank you very much, Mr. Mostyn.
    Now we'll go over to Monsieur Marceau.

[Translation]

    I'd like to thank the committee members for inviting me. I'd also like to thank Chandra Arya, the member who brought forward Bill C-305, as well as all the members who supported it at second reading.
    This legislation has been on the Jewish community's agenda for quite some time. Understandably, then, I would like to set the backdrop for Bill C-305. Though in no way do I want to take any credit away from Mr. Arya for sponsoring the bill. Quite the contrary.
    Back when I was in your shoes and serving as my party's justice critic, the Jewish community approached me to have protective safeguards already available to houses and places of worship and cemeteries extended to community centres and schools belonging to the community.
    They convinced me, so I put together a bill, which I was about to introduce when the 2006 election was called. I was defeated in the election, but Carole Freeman, a Bloc Québécois MP took up the charge and introduced the bill. After passing at second reading, Bill C-384 was referred to this committee. The 2008 election was then called, and Ms. Freeman lost her seat as well.
    Between 2008 and 2011, a Liberal MP by the name of Marlene Jennings brought the bill back, this time as Bill C-451. It garnered widespread support from all parties, but Marlene, too, lost her seat in 2011.
    During the 41st Parliament, Marc Garneau, now Minister of Transport, reincarnated the bill as Bill C-510, but it was too low on the priority list to ever see the light of day.
    It's been 10 years since the bill first came about, and we are here today to study it. Finally, there is light at the end of the tunnel.

[English]

     The objective of the bill is fairly straightforward. It is to extend the protection already given to houses of worship and cemeteries to other buildings and structures used by communities at risk.
    Our community, the Jewish community, has often been the target of vandalism. As Michael mentioned, Jewish Canadians are victimized by hate-motivated crime at a higher rate than any other identifiable group. StatsCan data shows that roughly three-quarters of these crimes fall under the legal category of mischief—broadly speaking the vandalism or destruction of property.
    Vandalism of community centres and schools involves more than attacks on buildings. It reverberates throughout a community and throughout a city. It touches every member of a community, whether that person goes frequently to that place or not. That is why it must be seriously punished.
    The bill extends the protection by defining the word “property” for the purposes of subsection 4.1 as being:
a building or structure, or part of a building or structure, that is primarily used for religious worship...
that is primarily used as an educational institution...
that is primarily used for administrative, social, cultural or sports activities or events—including a town hall, community centre, playground or arena—, or...
that is primarily used as a residence for seniors
    I understand there are concerns about the bill's being too broad, more specifically about the groups afforded protection in subsection 4.1 and about which buildings would be covered. Let me tackle one at a time.
    The fact is, the subsection is about mischief relating to religious property. I have heard concerns that extending it to cover buildings associated, for example, with the LGBTQ+ community would denature the subsection. We at CIJA have no problem extending protections to LGBTQ+ community buildings. Our longstanding advocacy in this area, including our deep involvement in support of C-16—previously C-279—brought forward by Mr. Randall Garrison, speaks for itself.
    I don't think the principle of inclusion with regard to the LGBTQ+ community is at issue. The question may be whether these protections should be included in the same subsection, thus changing its nature, or whether they should be extended to LGBTQ+ community buildings in a different subsection. To the Jewish community, the how/which subsection matters less than the what, namely that these institutions be covered and better protected.

  (1545)  

     As for the issue of the bill's being too broad regarding which buildings would fall under this subsection, I disagree. What about, for example, a synagogue, a mosque, or a temple that rents space in a mall? Shouldn't those be protected? How about the social services agency of a community that rents space in an office building? Today the Jewish social services agencies from across Canada are on the Hill, meeting MPs and ministers to discuss the issues around disability. They would tell you, and rightly so, that they would like and need their offices to be covered.

[Translation]

    At a time when Sayyed al-Ghitaoui, an imam at Montreal's Al Andalous Islamic Center, who called for the destruction of the cursed Jews, imploring Allah to kill them one by one, and to make their children orphans and their women widows, has the support of his mosque; at a time when Igor Sadikov, a member of McGill University's student society sent out a tweet that read, “punch a [Z]ionist today”; at a time when—and this happened on February 6, 2017—someone hacked the attendance sheet of a children's swim team in Côte Saint-Luc, hosted by Google Docs, and filled it with murderous threats against the Jewish community, as well as several references to Hezbollah, a Lebanese terrorist organization, banned in Canada, that seeks the destruction of Israel;

[English]

    At a time when six Muslim worshippers were so brutally gunned down while engaged in prayer, when a wave of hate vandalism hit many religious and community institutions in Ottawa, including the community centre where my sons work and the synagogue I am a member of, it is time to send a strong signal that anti-Jewish, anti-Christian, anti-Muslim, anti-Sikh bigotry, and all other forms of hatred have no place in Canada, that schools and community centres are as central to minorities' lives as houses of worship or cemeteries, and that mischief against those buildings should be seriously punished.
    I encourage all members of Parliament to continue to support Bill C-305 and to pass it without delay.
    Thank you very much.
    Thank you you very much, Mr. Marceau.
    Now we're going to move to questions. We're going to Mr. Cooper.
    Thank you, Mr. Chair.
    Thank you, Mr. Mostyn and Mr. Marceau, for your testimony. I certainly agree with your presentations, that this bill is certainly a well-intentioned piece of legislation. I believe it closes a gap in the Criminal Code.
    Both of you alluded to the fact that in recent years we have seen a string of incidents in which people have been targeted in not only their homes, their synagogues, and mosques, but also their schools and their community centres. We saw the fire bombing of the United Talmud Torah school in Montreal. We saw a few month ago in Ottawa a string of incidents that included two synagogues, as well as a mosque, but these incidents also included a Jewish teaching centre and the Ottawa Muslim Association.
    The offences were motivated by the same hate. They were an attack on entire communities to perpetuate fear. The nature of the crimes that were committed at each of those sites was similar. Yet, depending on where certain acts of vandalism occurred, they may be subject to the general section or the specific section of the Criminal Code, with very different penalties—one up to a 10-year sentence, the other for up to two years. I certainly agree that there is an inconsistency and that this legislation would help close that inconsistency.
    In the wording of proposed subsection 430(4.101), if you look at paragraph (a), it refers to a place of “religious worship—including a church, mosque, synagogue ”, and so on. But after that, if you look at paragraphs (b), (c), and (d), there is no mention of religion, so it's not necessarily limited to a religious education facility or a religious administrative building or community hall or a Muslim or Jewish seniors' residence, for example.
    Do you have any thoughts on these three paragraphs and how they would expand coverage well beyond the existing purpose of the subsection related to religious property?

  (1550)  

     Thank you, Mr. Cooper, for your question.
    Many of the Jewish communities and institutions are not religious by nature. Usually, a Jewish community centre is not a place of worship. Sometimes some spaces are rented by a congregation for a little while, or for bigger events—for example, during Jewish high holidays. If you take the Soloway JCC in Ottawa, for example, some synagogues would rent spaces. Usually, it's not associated with the Jewish religion, but it's very associated with the Jewish community. That's where some Jewish studies happen. There are some Jewish sports and sports teams.
    The definition of property here would apply to the JCC, even though there's no religious institution and there are no religious activities per se. That's where I think the gap you identified at the beginning of your question shows, and why it is important to fill that gap.
    The same thing goes for a cultural or sports activity. The Segal Centre in Montreal has a Jewish theatre company. It's very identifiable as being Jewish. Under the current subsection 4.1, it would not be covered, even though the motivation for attacking the Segal Centre in Montreal would be anti-Jewish.
    I think that wording covers those kinds of places. An attack on a Jewish community centre reverberates as much as an attack on the JCC or on a Jewish cultural institution.
    I certainly support the bill.
    It's really just a matter of looking at the specific wording in the bill to see whether or not any amendments are required. Do either of you have any suggestions as far as amendments are concerned, or are you satisfied with the bill in its present form?

  (1555)  

     I'll speak to that for a moment.
    In the proposed paragraphs 430(4.101)(a) to 4.101(d), the term “primarily used” is used for all of these different sorts of properties that are stated in the bill.
    Sorry, what part are you referring to?
    Oh, it's (a) to (d). Sorry.
    If you are looking at (a) to (d) in the amendments, the words “primarily used for” or “primarily used as” appear before each of these areas. It refers to whether a building is primarily used for this, or primarily used for that.
    I guess the question that the committee should consider is, why are those specific terms being used? As I mentioned earlier in my testimony, you might have any number of institutions that you use part time. Richard mentioned that it could be in a Jewish community centre. It could be any sort of a property that is used part time by a religious school, Sunday school, or other things.
    An alternative description could be “substantially used for” or “regularly used for” because those properties maybe primarily used for other purposes. However, you still want to protect those buildings so that you have fairness in the way that the law is being applied.
    Thank you for that.
    Mr. Marceau, do you have any suggestions?
    No. I actually like Michael's idea. It's one that I would seriously consider.
    Otherwise, I am fine with the bill as is, with the caveat as I mentioned earlier: the LGBTQ buildings or community centres. Should they be in the same subsection with a subtitle of religious property, or should they be in another subsection? It's of no consequence to us. We believe that, as a community at risk, it should be protected.
     I would mention one other thing. If we assume that Bill C-16 will be passed by the Senate this session, we should make sure that the wording of Bill C-305—which was passed by the House and is now being considered by the other place—is consistent with Bill C-16.
    Thank you very much.
    Mr. Bittle.
    Thank you so much, Mr. Chair.
    I would like to thank you both for coming today. It's quite poignant that you're here testifying to this bill, especially in light of the incidents that you mentioned, including the anti-Semitism on display in North York.
    Mr. Mostyn, you mentioned that you had recommendations. Was it just that one point, or do you have further recommendations that you'd like to share with the committee?
     Thank you very much.
    I do have some other recommendations. The committee should be listening to police and attorneys general, consulting with them as to why a history of case law is not on the public record with respect to the original section here. As I mentioned, in sentencing, item 718.2(a)(i) can increase the sentencing up to 10 years for general mischief. Are there guilty pleas that are taking place? It's hard to understand, I guess, from a civil society perspective exactly why police may or may not be issuing charges.
     Richard was talking about other anti-Semitic incidents targeting our community. One thing of concern to our community, being that most targeted group, is that we want to ensure that we feel safe. All Canadians want to make sure that all other Canadians, regardless of religious background, regardless of any identifiable background, are safe, and that the law is being applied and that there are no double standards in the laws. Without consultations of some sort on that, as I mentioned, it's very strange and odd because there really isn't much of a case law record with respect to this particular section, which came about in 2001.
    I'm sorry if this comes off the wrong way, but I just want it clarified. There is support for this bill, clearly.
    This question is for both of you, perhaps. My concern is, do you fear that this is symbolic of Parliament and that due to issues with enforcement, your community may not believe there's greater safety of and protection for targeted communities or groups?

  (1600)  

    I actually think that police forces are doing amazing work in Canada. We saw it in Ottawa. When the JCC and the synagogues and the mosques were attacked, police reacted vigorously. We were very grateful to them. If somebody thinks that Bill C-305 is a panacea and will solve any problem, that's not the case. It is one tool out of the toolbox. There's hate crime legislation; there is the SIP program that was put into place by the Conservatives, and renewed by the Liberal government; and we're very grateful to the government for that. It's a holistic, organic approach that is needed.
    One thing that we mentioned in the whole debate over the elimination of section 13 of the Canadian Human Rights Act under the previous Parliament is that if Parliament wanted to go in that direction, there was a necessity to make sure that crown prosecutors and attorneys general would bring prosecutions under, I think, it's sections 318 and 319 of the Criminal Code more often and more vigorously. We haven't seen that yet. There's space to have a debate on what to do and how to make sure that hate speech and hate crimes are fought vigorously in Canada, and Bill C-305 is but one element in the whole thing.
    Perhaps I can just jump in quickly to support my friend here. It's interesting to note that for those hate crimes that just took place in Ottawa, there were charges laid under that original section, subsection 430(4). So it is being used. The question is just, is there data to properly understand that? The police do great jobs in this country. They do great work for all Canadians, but once again, maybe there should be guidelines to help instruct police when charges should or should not be laid under certain sections.
    Perhaps I might just complete the answer. Last Friday the perpetrator of the hate crimes in Ottawa pled guilty to the charges. His name cannot be mentioned because he was a month short of his 18th birthday, but he was prosecuted. The police and the crown attorney took it very seriously and were quite satisfied with the way it was handled.
    Perhaps I'll ask a question that's a little out of the bounds of this hearing focusing on BillC-305. I'm hoping I won't be ruled out of order.
    Do you see any amendments to this bill or other amendments to the Criminal Code that would increase the effectiveness of enforcement?
     I rule the question in order.
    Well, thank you, Mr. Chair.
    You're very welcome.
    A voice: He's a generous chair.
    I didn't prepare for other sections, but speaking very generally to that, there's always room for improvement.
    Certainly, I know that police forces all across the country are doing a much better job nowadays of reaching out to community groups of all backgrounds, trying to better understand where they're coming from.
    My suggestion is not so much to make changes to the criminal code, but also to focus on the fact that the role of police is to protect and serve. There are a number of police forces that are now hiring public relations firms and getting out into the community groups. That's all wonderful and all great, but their primary purpose is to keep all communities safe.
    There are sections in the Criminal Code—sections 318 and 319—that require the consent of the Attorney General. There has always been some talk, not just in the Jewish community but also in other communities, about whether sometimes, for political correctness, politicians want to charge certain groups or not for certain offences, depending on how it plays out in the media.
    It's a matter of constant study and constant vigour, and of every community in Canada standing up for every other community and ensuring that intolerance and hatred are not tolerated.
    Thank you.
    Thank you very much, Mr. Bittle.
    Mr. MacGregor is next.
    Thank you very much, Mr. Chair.
    I would like to welcome our witnesses to the committee.
    It's good to see you again, Mr. Marceau, after we exchanged ideas on Bill S-201 last year.
    Mr. Mostyn, I want to go to your testimony. I didn't catch the amendments that you suggested in place of the terminology “primarily used”. Could you just go over those again, please?

  (1605)  

    Sure. I had just suggested changing the wording from “primarily used for”, which are the three words that are in the paragraphs, and suggested an alternative description, because I don't think this is where you want to get really narrow. I think this is where you want to be broad.
    If a property is being targeted for hate and hate bias, for that mischief, you want to make sure that the language captures this more broadly. I just suggested two terms, either the use of the term “substantially” or the term “regularly”, rather than the word “primarily”. I think that if you were to insert that terminology, you might be better able to capture and broaden the type of properties that should be protected under legislation such as this.
    Thank you.
    Also, when you were talking about the lack of case law or a history, was that with respect to section 718.2 of the Criminal Code?
    It was paragraph 718.2(a). That's the punishment that can come into sentencing.
    When we look through that as it applies to general mischief, there are a few cases—but not many on record—that apply in particular to mischief to property for religious institutions, which is what we're considering here today.
    To Richard's point, you had somebody pleading guilty just this past week. That's something that's not going to be recorded or captured, that lawyers are going to be able to take a look at and analyze.
    It's very possible that with the use of this section and the video cameras that are out there today—and many of our targeted communities, unfortunately, must have video camera surveillance and security at all of these institutions—it may also be the fact that sometimes people are caught red-handed and just plead guilty because they know that they did it, and they're not going to fight it.
    Even though a judge, when sentencing, can take into account those aggravating factors to increase the sentence, do you still feel that Bill C-305 is necessary in closing some loopholes that exist?
    Yes.
    Good. I'm just getting that on the record for when we deliberate on the bill clause by clause.
    One thing that I asked the sponsor of the bill—and I think some reference was made to it—is this.
    Mr. Mostyn, you referenced the fact that some of the crimes that could result from this bill's passage may actually be considered worse than if a person did the same to someone private home. Do you have some suggestions?
    If someone were to spray-paint racist or religiously motivated graffiti on a park bench, that could net them a harsher sentence than if they did it to someone's home. Do you have suggestions for the committee on how we should proceed with respect to this bill in that regard?
     I don't think the park bench would be covered.
    If it's within the grounds of a piece of property listed within, yes, it would be.
    Correct. It could be in that example.
    The reason I raised the example of the anti-Semitism that took place in North York is that our community, the Jewish community, does in fact self-identify 365 days a year, because of the fact that Jewish households have mezuzahs. Often, with many religious groups, there's a seasonal identification. You might put up a wreath around Christmas time. There are other religious ways. Our community is vulnerable to this.
    You could use the existing mischief with the section 718.2 provision, and you could still get that up to 10 years. The opportunity is there to allow for a degree of fairness. Again, it's something that the committee should consider, because where does it go from a senior's building to a building that has a large number of identifiable groups? This condominium that was targeted has a lot of Jewish residents, but it's not a Jewish residence. It's just the fact that many people of the same faith live in the same building. I would imagine that's pretty common across all religious groups in Canada.

  (1610)  

    I have a final quick question for both of you. If you go to proposed subsection 430(4.101), and you look at paragraph (c), it talks about a building being used for “administrative” purposes. I have some concerns. Do you think we need to define that term? A lot of buildings are used for administrative purposes whether or not they fall within one of the specified groups. If someone of some sort of a religious or ethnic background works in an administrative building like the CIBC, and it's spray-painted with graffiti, are we casting the net too wide if we don't define that specific term?
    I'd like your thoughts on that.
    Proposed subsection 4.101 makes reference to section 4.1. It talks about being “motivated by bias, prejudice or hate based on religion, race, colour”, etc. It's not every administrative building that would be caught in it. Here's the clearest example I can give you. Let's say the Jewish Family Services of town X has an office in an administrative building. That should be covered because the reason it would be targeted under this section is because it's identified as being Jewish.
    If I can just add to that, I think it's very unlikely that that would occur. If the commission of the mischief is motivated by bias, and they have to show that as an essential element of the offence, why would the police charge somebody when they know there's less chance of a conviction than of their going through the regular general mischief section? I think that's very unlikely to happen.
    Thank you both.
    Thank you very much.
    Ms. Khalid.
     Thank you, Chair, and thank you, gentlemen, for coming in today and giving your very compelling testimony.
    First off, I want to start by saying how disheartening it is, and how disgusted I felt hearing about the North York attack on a personal home of individuals. I was speaking to the member from Willowdale, whose riding it happened in, and he said that in speaking to the lady, she said it's expected. That disgusts me even more. It should not be expected. We need to do everything we can to protect all communities.
    It's troubling. I think our government must do more. You also mentioned what an imam said in a sermon, and that's also disgusting behaviour. We need to do more to keep our communities together. This brings me to the intent of this bill, which is to stop these kinds of acts, to stop vandalism, etc.
    I wonder if you think that this amendment to the Criminal Code will enhance deterrence. Will people actually be stopped by the addition of this provision within our Criminal Code?
    I'd like both of your comments, please.
    Do I think it's going to stop the hate? No, I don't, unfortunately. Unfortunately, I don't know what Criminal Code provisions you can propose that are going to stop the hate. Certain individuals are prejudiced and act out their bias against identifiable groups. That is not something that the Criminal Code alone can deal with. Education has to happen.
     There are all sorts of initiatives. Even then, there will always be.... That's the reason why we have the Criminal Code. The fact that there are more severe punishments could act as a bit more of a deterrent for those who understand it. In cases like this, unfortunately, that's more what has to be considered.
     I would agree with Michael's statement. It's both a deterrent and a strong signal. Let's not underestimate the power of statements by parliamentarians, of people here in this building voting and saying something. Those are very powerful and they reverberate throughout the country.
    Will it stop? Unfortunately, it won't. Many things have been illegal for centuries and are still happening, but the message still needs to be sent, and the punishments still need to be applied.

  (1615)  

    I know we've talked about punishments a little bit today, and about the police being hesitant to press charges where there's an additional element to be proven, for example, general mischief versus a specific one.
    Do you think there's anything we can do to encourage the police to then also give more precedence to this specific section in the code as opposed to the more general one?
    Some police forces around the country—not all of them—have a hate crimes unit. Those units tend to be better informed and more aware of the tools that are included in the Criminal Code. Ottawa has one; B.C. has one; but not every police force across the country does. I would suggest that message needs to be sent. As well, police officers and crown attorneys dealing with hate crimes and such must be more aware of how to better fight crimes that way.
    Thank you.
    Some concerns were raised here today, as well as when this bill was debated in the House, about the broadness of the bill.
    Mr. Chair, if it's okay with you, can we please ask for the government's position?
    Mr. Mendicino.
    I'm looking to the chair for a ruling in the same way he provided one in regard to Mr. Bittle, but I'm certainly prepared to briefly outline the position.
    I think that for you to intervene, we simply have to have consent.
    Is there consent to have Mr. Mendicino provide what the government's position is?
    Some hon. members: Agreed.
    The Chair: Agreed, so please provide it.
     I appreciate the committee's co-operation, and thank you, Mr. Chair.
    First, let me pick up on two comments that were made by my colleagues, Mr. Bittle and Ms. Khalid. I do think it's poignant that you're here today, especially given some of the issues that we have been debating today and will continue to debate in the coming weeks around religious discrimination and the need to call it for what it is. I want to commend Ms. Khalid for bringing her motion.
    Let me take a moment, as well, to say that the incident of anti-Semitism in North York hits very close to home, Mr. Mostyn. You know that my riding is very close to that neighbourhood and I work very closely with the community there. I was quite alarmed and disturbed to see that incident. Hopefully, the authorities will be able to pursue their investigation vigorously.
    The government's position is generally supportive of the objectives of this bill and it's precisely because of the reasons that I just articulated. The original intent of subsection 430(4.1) was to identify mischief relating to religious property. That subsection expressly articulates a number of building structures where, if the mischief occurs, it would attract a stiffer sentencing regime.
    My colleague, Mr. Chandra's, private member's bill, Bill C-305, would seek to expand both the grounds, as well as the categories of buildings and structures, that would attract this stiffer sentencing regime.
    In general, the government supports those objectives. Where we would offer some additional comment for the purposes of the committee's deliberations is related to the categories of secular buildings to which this sentencing regime would apply.
    If one goes back and reflects on the original intent of Parliament around subsection 4.1, there was a focus on religious property. That is not to say that there aren't other categories of buildings and structures that are used for other purposes. I think Monsieur Marceau provided some testimony regarding, for example, the JCC community centre that is not used primarily for religious purposes, but where there should be an appropriately stiff sentence following conviction, if it were targeted for mischief or hate speech.
    Our response to this is that, certainly, under subsection 718.2, a trial judge or sentencing judge could consider, as an aggravating factor, the cultural and other identities that should attract additional protection and denunciation in the context of that particular phase of the trial process. Assuming that the categories of buildings remain focused on those buildings used primarily for religious purposes, it doesn't rule out that a sentencing judge could use their discretion to sentence someone appropriately and more stiffly in the JCC hypothetical case that you provided.
    The other thing that I would point out, Mr. Chair, is that I appreciate Mr. Mostyn's comments regarding the attempt to clarify what should be the appropriate threshold for triggering the stiffer sentencing regime under Bill C-305. I also appreciate his suggestion that we move from using “primarily used for” to “substantially” or “regularly used”. My only comment is that I think that on reflection, “substantially” or “regularly” might be even more subjective than “primarily used for”. I think that as the committee reflects on where these amendments should land, hopefully that evidence will be helpful.

  (1620)  

    Thank you very much, Mr. Mendicino, and Ms. Khalid.
    We could just say “used for ”, as well, without any modifier. In the end, if something is used for something and there's a hate crime committed.... But it's something to deliberate. We're not there yet, so again, thank you Ms. Khalid.
    We don't have time for a whole other round, but I'd like to go to the members who have shorter questions to allow them to ask them. I know Ms. Sgro had one, and I think you each had one, did you not, Mr. Arnold and Mr. Falk?
    Let's go to Mr. Falk then Ms. Sgro.
    Go ahead, Mr. Falk.
    Thank you, Mr. Chair.
    I want to follow up what Ms. Khalid was talking about when she began. She talked about deterrence. What do you see this bill actually accomplishing?
    You can both comment on it.
     I'd be happy to.
    My comment would be to say to people that, yes, houses of worship and cemeteries are important, but schools and community centres are also identifiable places for certain groups, and that touching those institutions would affect the community as much as a threat or hate crime against a synagogue, mosque, or church.
    The latest example I can give you is that yesterday across North America there were specific threats made against JCCs—Jewish community centres. They were not synagogues being threatened; they were Jewish community centres. I can tell you that everywhere in the Jewish world things were put into place very quickly. Security experts were brought in. Is the entire community, all across North America, touched? Are we a potential target? Again, we cannot underestimate this. Let's say you're a parent and you have to bring your children to a swimming lesson at the local JCC, and you hear there's a threat against JCCs generally. You're going to wonder if you can leave your kid there. Is it dangerous? The message of hate targeted at a non-religious institution but linked to a religious community can also be very disturbing and affect a lot of people.
    I guess what I'm wondering is this. Does something like this really matter to the people who do these kinds of things?
    “Does something like this really matter to them?” To go to Richard's point, the fact that a non-religious building—for example, a building that's within the Jewish community—is being targeted, like a JCC, is because it's Jewish. It's very important for society to acknowledge when there are hate-motivated factors in a crime. In fact, it's very disturbing for our community, and I'm certain for many other communities out there, if a mischief, say, were addressed, but the hate-motivating factors were not addressed by a court. At the end of the day, there's a sense of letdown, and perhaps betrayal, in a community if the criminal justice system does not address the motivating factors. The reason why non-religious buildings are often targeted in our community is the hate-motivated factor, and that should certainly be addressed.
    Thank you very much.
    That's a very interesting point, sort of like mandatory minimum sentences, right? Is anybody not going to commit a crime because of what the sentencing is? I think there's a larger message here.
    Ms. Sgro.

  (1625)  

    Thank you very much.
    Twenty-nine years ago, I was elected to North York city council, and the first committee I was put on was the North York race relations committee. Everywhere in my progress in elected office, until here, we've talked a lot about race relations, we've talked about hate, and we've talked about these things. I supported your motion, Mr. Marceau, in 2006, and Ms. Freeman's, Ms. Jenning's, and Mr. Garneau's. As such, I'm sad to see that we're dealing with this issue today when we have already tried to deal with it so many other times. Clearly, you have to close every loophole and do everything you can to possibly.... One is to educate people, to talk about what respect is, and all of those reasons.
    I can only wonder what kind of world we would live in if.... I know that, for the last 29 years, there have been a lot of people in our country working on these issues, sensitizing each other to the needs, and so on, of other communities, whether it's in response to a school that gets vandalized by hate crimes or any building, period. I think some folks have a built-up hatred in them, and it won't matter if it's a mosque, or a temple, or a synagogue; they'll just find a place to plaster their terrible message.
    Anything we can be doing to bring in enforcement and things to make people pay attention.... We've got to send out that much more positive message to the world, which is a much more respectful one. There are those people who just don't get it, because they have their own malice, so I think having C-305, if it closes the loophole and tightens it up every little bit more, is one more thing that needs to be done.
    I just found it odd that I end with the committee today, and you're dealing with this issue. It makes me sad that in our country we're still having to deal with that kind of anti-Semitism. North York is my city, and we're still dealing with it. It takes each and every one of us to push back. Bill C-305 is another little step in closing any opportunities and sending that message that this kind of stuff is not acceptable.
    We'll put all the support we can behind the police department, because it's a very difficult issue for them to be able to get enough evidence to actually lay charges. I think we need to do that.
     Thank you, Ms. Sgro.
    First of all, it's hard for me to believe that you started in elected politics 29 years ago. I very much appreciate your support for BillC-305 and the previous iterations of the bill. I am not in any way naive in thinking that we're going to stop hate crime with this or any piece of legislation. I can tell you, however, that yes, there are bad people. These people should be punished and we should use every deterrent that we can.
    Very generally speaking, Canadians are good people. We saw it when there was that horrible attack in Quebec City. The swell of support for our Muslim brothers and sisters in Canada was overwhelming and amazing to see. When we saw attacks on the Jewish community centre and synagogues here in Ottawa, everybody went on that Saturday to the synagogue Machzikei Hadas to support. We had local politicians there; municipal, federal, and provincial ones; and members of every community were there. When the United Church was vandalized a few months earlier, the following Saturday members of every denomination were there to support that church. There is lots of good in Canada. I'm finishing on that.
    So let's build on this, and let's not forget that despite having to deal with ugly stuff, we have lots of good in this country.
    Now we have two more short questions. Make them very short questions, and very short answers please.
    Mr. MacGregor.
    Thank you, Mr. Chair.
    Mr. Marceau, I was really glad to hear of the work and support you've given to Bill C-16 and my colleague, Randall Garrison and his work on that. I think we've identified that gender expression is missing from this bill.
    I have one quick question for you. In section 718.2 of the Criminal Code, one of the aggravating factors is also sex. Do you think that should be included in this specific part?
    I ask because in my riding I have a building, the Cowichan Women Against Violence Society. It's a women's organization specifically there to help women out of abusive relationships, and if someone were to target that building just because it is helping women, do you think that sex is a key element missing from section 4.1?

  (1630)  

    When Bill C-384 was debated between 2006 and 2008, that was the main thing pushed by members of Parliament at the time. It's certainly something that I would encourage this committee to consider. Women's shelters or women's buildings, or based on gender, is certainly something that I would look at if I were sitting in your shoes.

[Translation]

    Great.
    Mr. Boissonnault, you may go ahead.
    Mr. Marceau, I want to acknowledge the Jewish community's support for the LGBTQ2 community.

[English]

    I note particularly the Canadian Jewish Congress. At the time of same-sex marriage debate, the Jewish community of Canada was the first non-LGBTQ intervenor, because the point at the time was that human rights were for everyone and that we all have to stand together. I see you doing that again today, both organizations. Thank you to you both.
    You mentioned that this is not a panacea and that there are other tools that we need to avail ourselves of. Do you have any quick recommendation for other legislative tools at our disposal that you would like us to consider?
    I'm a bit surprised by the question. Can I get back to you on this?
    As of now, I think this would cover what I think is the main gap in the hate crime legislation. Let me get back to you on that.
    We'd be happy to get back to you as well.
    The only thing I would add is that an offence such as this is a very cowardly offence. This is something that's usually done under the cover of darkness. I know you were talking about your experiences in the past. Unfortunately, we live in a social media age in which people don't have to interact directly with one another. Perhaps if they did, they would treat each other as more human. There are great societal reasons why you would want to say that behaviour like this is abhorrent and will not be tolerated in Canada.
    Thank you so much, gentlemen.
    Mr. Mostyn, Mr. Marceau, your testimony was very helpful to the committee. We want to thank you for coming. It is incredibly appreciated.
    We're going to take a short pause to change panels, and we will resume shortly.

  (1630)  


  (1635)  

    We are reconvening the meeting.
    I would like to welcome our next witnesses. Representing the Pride Centre of Edmonton is Mr. Mickey Wilson, the executive director.
    Welcome, Mr. Wilson.
    Representing himself as an individual is Mr. Kristopher Wells, assistant professor and faculty director, Institute for Sexual Minority Studies and Services, University of Alberta.
     Welcome, Mr. Wells.
    I think the two of you have agreed that Mr. Wells is going to go first, so Mr. Wells, the floors is yours.
     Thank you for the opportunity to speak with you today.
    And to our colleagues who presented before, it's great to see the solidarity between communities talking about such an important issue of hate and bias in our country.
    I believe that the proposed amendments to Bill C-305 are important to the preservation and protection of Canada's increasingly diverse, multicultural, and pluralistic identities, especially as we increasingly express and make visible our diverse identities and values directly through our public institutions.
    As emphasized by member of Parliament Randall Garrison, I believe Bill C-305 should not only include sexual orientation and gender identity, but also gender expression, as prohibited grounds for the offence of mischief, which aligns with the current changes proposed by Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, which includes both gender identity and gender expression as prohibited grounds of discrimination.
    Transgender individuals experience some of the highest rates of violence, discrimination, and prejudice in our society. Unfortunately, in Canada we have no way for law enforcement to track, charge, or specifically prosecute hate or discrimination that is motivated by gender identity or gender expression. Trans lives matter and are worthy of protection. This critical absence must be addressed.
    It is vitally important to recognize and protect the LGBTQ community in similar ways as other cultural, racialized, or visible minority communities that are vulnerable to hate, prejudice, and discrimination because of an identifiable characteristic of a person. Much discrimination against LGBTQ people is based on their gender expression and the assumptions that are made as to what it means to be stereotypically male, female, or to be perceived as neither.
    It has been said that homophobia and transphobia are one of the most powerful weapons of sexism, misogyny, and privilege in our society. LGBTQ individuals are often considered to be invisible minorities because they may not reveal their true identities unless they feel safe. This is why the LGBTQ community organizations, like pride or rainbow centres, and growing cultural celebrations, such as pride festivals, and specific LGBTQ-identified neighbourhoods or enclaves are all critically important safe spaces. These safe spaces are often visibly marked with rainbow flags to indicate inclusion, acceptance, and support. Indeed, it was a remarkable historic moment to witness the rainbow pride flag raised over Parliament Hill last June. This was a strong and visible signal to the world that Canada supports our LGBTQ communities both at home and abroad.
    The challenge of the proposed amendments in Bill C-305 will be in establishing clear definitions as to what is meant by administrative, social, cultural, or sports activities or events. For example, many hate crimes and incidents happen in specific LGBTQ-identified neighbourhoods and at community or social events. Places like Church Street in Toronto, Davie Street in Vancouver, and Saint Catherine Street in Montreal all represent clearly identified and civically supported LGBTQ neighbourhoods.
    Would these areas receive the same protection that is proposed by Bill C-305? I believe clarity is needed to ensure that these and other important community gathering places, such as pride festivals, which can draw tens of thousands, or in the case of Toronto and Montreal and Vancouver's pride festivals, hundreds of thousands of people.
    Sadly, these celebrations of diversity also make them prime targets for hate and extremism. While mischief or crimes to property are one of the most common forms of hate crimes in Canada, most hate crimes against the LGBTQ community are not to property, but directly target individuals in the form of physical and sexual assaults and murder. Indeed, recent hate crime statistics indicate that of all the reported hate crimes committed in Canada, those targeting the LGBTQ community are among the most violent in nature and require serious medical attention. It's not one stab wound, but 40, as these individuals are not seen as persons, but as objects to be destroyed.
    Sadly, only one in 10 hate crimes is ever reported to law enforcement. By attacking vulnerable individuals, most hate crimes are designed to instill fear and terror into entire communities. They strike at the very heart of what we believe an inclusive democracy should be, which is to live one's life openly, without threat or fear.
    The proposed amendments to Bill C-305 raise several further questions. Will commercial spaces, such as LGBTQ-identified businesses, be protected under the legislation? Places like bars and nightclubs have been important and historic spaces of refuge and resistance for the LGBTQ community. In some cases they were the only safe spaces that existed in many communities.
    Our modern pride movement is said to have emanated out of the police raids at the Stonewall Inn, an infamous bar in New York City. And now thanks to one of the final acts of president Obama, it has been recognized as the first national LGBTQ monument in the United States. Stonewall marked the beginning of a newfound source of community identity and activism. Those fateful riots in June of 1969 are the reason why many pride festivals are held around the world today.

  (1640)  

    The recent Pulse nightclub tragedy in Orlando, which took the lives of 49 innocent people and wounded 53 others, occurred in a gay-identified nightclub. This is another very recent and tragic example of the extreme hate and violence still directed at the LGBT community. There have been more than 25 documented directed attacks on LGBTQ-identified spaces, where people came to find community and love, but where they were met with hate and death.
    Perhaps rather than the piecemeal amendments to the Criminal Code of Canada, all of which are well intended to address hate and prejudice, it's time for a different and more comprehensive approach. In Canada, law enforcement agencies still do not have a common operational definition of hate crimes, which causes challenges in police investigations, reporting, and the accurate collection of important national data. This is why there should be a specific hate crime section and universal definition included in the Criminal Code of Canada.
    For example, a possible uniform definition might be this: A hate crime is an offence committed against a person or property, which is motivated in whole or in part to harm or instill hatred towards an identifiable group based on real or perceived race, national or ethnic origin, language, colour, religion, gender, gender identity, gender expression, age, mental or physical disability, sexual orientation, or any other similar factor.
    The addition of a specific hate crime section in the Criminal Code of Canada, which could be in similar form to the current section on terrorism, section 83.01, and the education and application of this new hate crime section by police agencies and justice officials would ensure that Canada's diverse communities understand that our government not only advocates and supports peaceful co-existence between communities, but it also enforces the full extent of the law against hate-mongers and extremist groups whose goal is to attack diversity and difference and tear away at Canada's very social fabric.
    While the proposed amendments to section 430 are important, hate is not only a crime against property. Rather it disproportionately impacts people, many of whom are the most vulnerable in our society. We must do more to protect and support our most vulnerable and marginalized communities. One look around the world shows us that hate and extremism are on the rise. The question is this. What will be our response to this growing threat? As we recently and tragically witnessed, Canada is not immune.
    We must do more to protect our diverse communities. We must do more to give law enforcement the appropriate tools to adequately investigate, track, and prosecute hate-motivated crimes, regardless of whether they attack property or persons. It's time for us to have a much broader conversation about hate and extremism in Canada.
    I hope this private member's bill will do just that.
    Thank you for the opportunity to speak with you today.

  (1645)  

    Thank you very much, Mr. Wells.
    We'll go over to you Mr. Wilson.
    Thank you for the opportunity to speak to you today, and for having us here to discuss this important bill.
    I want to begin by saying that I don't usually spend my time parsing out bills and exploring in depth that kind of work in building policy. I work in a community centre. I've spent 30 years of my life working in the LGBT queer and trans communities, volunteering for community-based organizations, and now as a paid employee, the executive director of the Pride Centre of Edmonton.
    Our agency serves approximately 5,000 unique individuals every year, and in our outreach program we provide education to the larger community, to more people than that every year. We deliver our programs to government, not-for-profits, schools, churches, seniors centres, businesses in the broader community, and places of all kinds.
    It's also important to know that I am a retired clergyperson, so I have a deep understanding of the connection between faith and the LGBTQ community, and the social construct of faith and its importance in the life of all communities. In my 20 years of active ministry, I served only two congregations. One was in the inner city of Edmonton, which was made up largely of homeless people, mostly indigenous. The second congregation was queer and trans and we met in other spaces that we shared. Most of the time that I was in those congregations, we did not use traditional worship space. We rented ad hoc, we met by the grace of others, and certainly we occupied spaces that would not necessarily be described in this bill.
    As part of my volunteer work, I was fortunate to work with the board of Egale Canada, and for five years I was the chair of their national trans committee. During that time, the Egale study “Every Class in Every School” was undertaken, and it was released in 2011. It was the first study of its kind and exposed astounding statistics related to harassment, violence, and the perceived lack of safety. In addition, the study found that Caucasian youth, both LGBT and non-LBGT, experienced significantly less physical violence and harassment—8% compared to 13% of aboriginal students and 15% of youth of colour. This is significant because there is an aggregate effect, or a kind of double whammy that they experience. They are at risk not only because of their gender or sexual orientation but also because of their ethnicity.
    In 2014 the Trans PULSE study on trans people in Ontario found even more alarming statistics related to trans and non-binary people. But significantly, the research showed that the experience of discrimination can result in exclusion from social spaces, unemployment, avoidance of health care, and poor mental health. The study also revealed the impact of intersecting oppressions such as one's trans identity, gender, and being part of a racialized community, and it produces the same aggregate effect.
    Although physical assault and violence are not what's being addressed in Bill C-305, the experience of hate-motivated mischief is likely to have the same aggregate effect, where multiple categories of identity intersect. Research also indicates that LGBTQ people worry more about being victims of discrimination than do others, and research shows that in fact we anticipate it in our lives, often on a daily basis. The resulting minority stress has a collective impact that is particularly noticeable when there is an incident of violence, harassment, or mischief.
    In the past five years I've seen “fag” and “homo” sprayed on a vehicle in my neighbourhood, notes posted on windows and doors using slurs about all kinds of people, vehicles burned, and windows broken. They were my windows. The other side of that coin is the impact of acknowledging the reality of our vulnerability and our value as citizens.
    The inclusion of rights and the validation of LGBTQ identities at legislative levels empowers and strengthens queer and trans people, both individually and collectively. I've seen this in my life over and over again, from the decriminalization of homosexuality in 1969, which is when I was just coming out, to the amendment of the Human Rights Act in my home province of Alberta to include gender identity and gender expression in December of 2015.

  (1650)  

    In reading Bill C-305, I am uncertain exactly which buildings and which contexts this amendment might address, or perhaps should address. I know that hate-based mischief has the same result regardless of where it happens, whether it is in a religious setting, a community centre, a women's organization, a community group of indigenous folk or people of colour, a gathering place for queer and trans people, or posted on the door of a senior's room in a seniors' facility.
    This kind of legislation sends strong messages. To those who enact legislation against hate-motivated mischief as a society, it says we reject this kind of action. It may not stop the action, but it says it's not okay, that it is unacceptable. To the vulnerable, the message is much stronger: it's that we matter, and that's really the most important thing of all.
    Thank you for your time today.
    Thank you very much, Mr. Wilson, and I thank you both for your comments.
    Now we're going to questions. We're going to start with Mr. Falk.
    Thank you for attending committee today.
    Mr. Wilson, I have some questions I'd like to ask you. Looking at the legislation—you've obviously had a chance to study it a bit—do you think it addresses the concerns that you've identified in your presentation?
    It addresses some of them, certainly. I'm not sure that it would clearly identify some of the issues the LGBTQ community might experience in terms of mischief. A lot of mischief crimes would happen in personal residences and against personal property. It certainly would happen in spaces that are occasionally used perhaps for our purposes. For example, if somebody knows that a hall is rented for an LGBTQ facility during pride week, an event could happen there, and it wouldn't be a regular use or a primary use.
     I think there are perhaps some gaps in it. I'm not sure how to close those gaps. That's not my job, but I certainly see that it might not meet all the needs of this community.

  (1655)  

    Okay.
    You've identified the word "primarily" in the first four paragraphs of the proposed amendments. You've indicated that it may be problematic, especially in the context of your communities, and you're suggesting that it should be considered more carefully and perhaps altered?
    I think so. In reading it, I wondered if it needed to be in there at all. I think that if a crime of mischief happens and there were an identifiable group in there that's been targeted, then it shouldn't matter whether its the primary use or not.
    In the previous panel that we had here, Ms. Khalid asked about how this legislation might act as a deterrent. Based on your testimony and your experience, do you think this bit of legislation would be a deterrent, and if so, how do you think it would play out?
    One could only hope that hate would be stopped by deterrence, but it most often isn't. I believe that it certainly puts a message out there. People who perhaps could be swayed, may be swayed because it's there. Unfortunately, though, I don't believe most hate is swayed by legislation or law.
    Okay. Thank you.
    Thank you very much, Mr. Falk.
    We're going to go to Mr. Boissonnault.
     Thank you, Chair.
    Thank you, both, for travelling to Ottawa. It's really important for us to have your perspective from the LGBTQ2 community and also a perspective from the west, particularly from Alberta and Edmonton.
    During my recent community conversations, I met researchers across the country. In Vancouver, I met with the Stigma and Resilience among Vulnerable Youth Centre, known as SARAVYC. I asked a direct question. “How can we save the lives of queer and indigenous youth? How can we stop suicides?” Jennifer, one of the researchers, took out a research study and said, “Here's the proof. We need safe spaces and we need symbols.” What youth need to know is that there's a space where they can be safe to be who they are, but they need the symbols that identify that those safe spaces exist. They need the kind of pride flags and trans flags that you have on Camp fYrefly, on the iSMSS office and the pride centre, and what Vancouver City is now doing with all of its rec centres, having safe spaces there. These are important, but, as you mentioned quite eloquently in both your remarks, that then turns those spaces and those gatherings into targets.
    What's important for me to know and what I would like to ask you is, how do we, not just with legislation but with other tools at our disposal, attack some of these issues?
    Kris, you were very blunt that we need a wholesale review. You don't have to take my word for it. The last 2013 data from StatsCan shows that 16% of hate crimes were motivated by hatred based on sexual orientation. That makes our community the third most targeted after race and ethnicity, and religion. I applaud Mr. Arya for including this and going this far.
    Kris, my question for you, Mr. Wells, is what would the substantive and symbolic impacts for the LGBTQ2 community be if sexual orientation and gender identity were added to this section?
    Then I'll have a question for Mickey and a question for both of you.
    Thank you for the question. I think at its face, it says that you matter, you exist. When we name people, we give them personhood. We recognize that they have rights, that they're full, contributing, and valued members of our society. We also recognize as a government that this is a distinct, vulnerable community in our society. We certainly wish it weren't that way, but that's a reality. These changes are symbolic. They expand the conversation. They enlarge the space of inclusion in our country.
    I think they can also be substantive in giving some of those tools to law enforcement, to our prosecutors, to send out those strong messages that, when these crimes do happen, they're going to be taken very seriously because of the differential impact that they have. As has been said time and time again, these are not crimes, even though they might target property. They target an entire group of people. That message reverberates strong and loud and then makes people feel that they have to be silent and invisible. It makes them feel less safe to be able to go into those identified safe spaces.

  (1700)  

    Thank you.
    Mr. Wilson, how would the addition of sexual orientation and gender identity affect the Pride Centre of Edmonton and other like organizations across the country? How would these proposed additions impact members of the trans community and gender-diverse Canadians?
    I think it's really clear that, when people can see themselves in legislation, they're more likely to feel empowered. Most queer and trans people don't report hate crimes, hate incidents, or incidents of bias that happen in the community because they don't think anybody will listen. They don't think anybody really cares about whether or not I got called a name or was threatened in a washroom because I'm trans or any of those kinds of things.
    What it does do is to say that I do matter, that my government has taken my life into consideration and has said it's important, that it's important enough to put on paper and to create a bar that's met by law.
    What would it mean to the pride centre? Certainly it would make us feel safer. We haven't had, in this round of occupation, the current space that we have, anything pasted to our doors or anything like that, but we have received letters that we do report, and they sit in my cabinet telling us that we're evil, that we need to repent, that we're going to hell, and that we shouldn't exist.
    Gender-diverse people are perhaps the most marginalized among us. Trans women are underemployed or unemployed. Trans women of colour are murdered violently. They're beaten. Trans people struggle every step of the way. I would say that we face injustice at every turn. I can say there isn't a day that goes by when we don't have to deal with some sort of conflict or confrontation in our lives. On my trip here this morning, I had to have a conversation with the airport screeners about who I am. So it's every day.
    I think the government acknowledges who we are and says that people don't have a right to mistreat us or commit crimes against our property or the spaces that we're in. It's really significant.
    We're working very hard to make sure that you feel safer every day. You know that, and I know you were part of the conversation.
    Mr. Chair, do I have 30 seconds or one minute left? How much time do I have, or am I done?
    You actually have no time left, but we have 30 seconds, and I'm happy to give it to you for 30 seconds.
    Maybe answer this in another part. Forty percent of homeless youth are LGBTQ2. We have LGBTQ seniors going into seniors' facilities being re-closeted. As our government starts to make more spaces for LGBTQ seniors and to help get all kids off the street, but certainly LGBTQ youth as well, how does this kind of provision make those spaces safer, in your mind?
    We know that hate is a learned value. Right? The reality is that the large majority of hate crimes are committed by youth against youth. These are crimes under the age of 25. If hate is a learned value, the real question comes down to what we are teaching our children. Where are they learning that it's okay to hate and attack other people?
    A lot of this has to start with the conversations we're having with our families around dinner tables. We're seeing this conversation happen right now in the National Hockey League, through February's being designated as “hockey is for everyone” month. Our organization, along with others and Calder Bateman, have created pride tape as a visible way that NHL players and role models can wrap their sticks in rainbow hockey tape to say that we're allies; that we're going to stand against discrimination; that we're going to create spaces of inclusion.
    While we're talking about changes to the Criminal Code, we're talking about all those little changes, the micro-practices whereby individuals and organizations step up and denounce hate and prejudice, because that's how culture will change.
    This is an important first step, but I really believe it's about education, cultural change, and the kinds of conversations we're having.
    Thank you both.
    Thank you, Mr. Chair.
    Thank you very much.
    Mr. MacGregor.
    Thank you very much, Mr. Chair.
    I very much appreciate both of your testimonies today. Thank you for coming to Ottawa to give them.
    Professor Wells, I was really glad to hear your testimony when you were talking about the piecemeal approach to the Criminal Code. The Criminal Code is a vast piece of federal legislation. It clocks in, I think, at over 1,300 pages. Every time I review it, I find myself jumping around from section to section, because there can be sections separated by 500 pages that deal with the same area.
    I know the intention behind Bill C-305 is a very noble one, but you raised some concerns in your testimony about whether these very specific definitions are going to leave some spaces out. Section 718.2 allows a judge to impose harsher penalties if a crime is motivated by hatred, based on a few characteristics. I note that as this is currently written, gender identity and expression are not included.
    Would it be a better way to go to put it in, to make it a bit broader and make a judge more able to interpret it? When you were testifying about this specific section, you raised the prospect of whether businesses that are easily identifiable would be excluded. Neighbourhoods in Vancouver and Toronto are not covered in this legislation, but they are identified as places where the trans community hangs out to feel safe; they are their community.
    What are some of your thoughts on that?

  (1705)  

    I think you're right. This inevitably happens with legislation that is amended over time: sections don't necessarily read together and they're difficult to find. If judges are having a hard time finding various sections that are current or no longer on the books, I'm not sure how everyday, ordinary citizens are to be able to interpret it.
    That's why there is a proposal to add a specific hate crimes section to the Criminal Code that will consolidate all of this together. It will make a stronger statement to individuals and as a nation about how we understand hate; we've certainly done that with terrorism. It also provides clear guidance and gives greater opportunity to educate law enforcement as well.
    We know that right now there are special prosecutors who deal specifically with hate, because of the complexity of being able to prove motivation, who's included, who's not included. The fact that we don't even have a standardized definition of what a hate crime is Canada is, to me, unconscionable. How are we going to get at the intent of the changes to the Criminal Code when we have police departments all across the country operating with different understandings?
    It's like the elephant in the room not being addressed by this—
     I know there is support. It's just a matter of making this a priority, and when we see the state of the world before us, I do believe that now is the time for us to do this in this country. This is a serious discussion that we should be having. How do we consolidate our approach against hate, whether that's with the Criminal Code or the other resources we have?
     We know that across Canada there are great models of hate crime units. Some are focused within police services while others have coordination provincially, but do we have that nationally as well?
    I think a lot of what happens is that we shift that off into forms of extremism and terrorism, but we're talking about how hate and terrorism can be and are different things. They can be related, but they can also be very separate as well. When we talk about hate, we're often talking about targeting vulnerable individuals. When we're talking about terrorism, we're talking about entire classes or groups of people as well.
    I believe this legislation is important. I believe it's a step in the right direction. I think it's a conversation that we need to strongly carry forward.
    I'll get you to add to that, Mr. Wilson, but there's a quick thing I wanted to get in before Mr. Wells closes his testimony.
     For Bill C-305, if we can find a way to throw in those amendments to identify businesses or any kind of gathering place, do you think that would make it a more worthwhile bill, one that is still worth pursuing, despite the need for defining hate crimes more generally?
    I do. I think it's important for the LGBTQ community. For those commercial spaces, with legislation like this, if we were to have a tragedy like what happened with the Pulse nightclub, we'd be wondering if this applies or not. We can learn the lessons of history and move forward in a proactive way. Perhaps we can talk about celebratory spaces as well.
     We talked a bit about that definition; once we start to get so specific as naming the grounds, maybe we also need to add that phrase, “and other similar factors”, so that over time we won't have to reopen these sections of the code they can be interpreted to be within.

  (1710)  

    Thank you.
    Mr. Wilson, is there anything you'd like to add?
     I think the only thing I would add is that there is an opportunity for imposing a harsher sentence if hate is seen as the motivating factor, but that doesn't happen very often, even when hate is known to be a motivating factor. I think that's a problem, because then we don't know—nobody knows—that hate was a motivating factor. It's not captured anywhere. I think that's a problem.
    Okay. Thank you.
    Thank you very much.
    Mr. McKinnon.
    Thanks to both of you for your testimony today.
    Professor Wells, you mentioned that “gender expression” is missing in subsection 430(4.1). Could you speak about how the addition of that would augment or improve this bill and what effect it might have?
    Absolutely. I believe it has been said that it should parallel Bill C-16. As I mentioned, many people are targeted because of their gender expression, because they're not performing what it means to be societally acceptable as being a male or female. Or, what happens when you're gender diverse? That is a group of individuals who can be at some of the most extreme risks, as my colleague has mentioned.
     As we're changing one part of the Criminal Code and we have the opportunity to be consistent, I think this is prudent. I think there's been a lot of conversation around this. The difference is that now I think we're getting a better understanding of gender identity and of what gender expression is and how they both create vulnerability in individuals who may operate outside of the male-female binary. We see this as more of a fluidity that's happening in our society.
    As I always say, go to our students, to our young people, and go to Facebook. There aren't just two gender choices. There are over 50. As a professor who works in this area, I'll say that my students are my best educators on what is current in how they're identifying these days.
    I took notice of your broader discussion about hate crimes and so forth. However, we unfortunately have to deal with a very narrow aspect of that, which is the subject of this bill. This bill was activated upon mischief being visited upon buildings that are identified very broadly in some cases and very narrowly in others, and the attendant surroundings of those; whether it's for a primary use or a partial use is something we need to talk about.
     I'm wondering if that needs to be expanded to include other spaces and whether it needs to include private property. If this were expanded to include places, buildings, and structures that are targeted because of their perceived use by or association with the listed groups, whether in whole or in part, I'm wondering whether perhaps that would be too broad.
     I would certainly support that. I give the example of someone putting a rainbow flag in their window or in their front yard, and then being targeted because they have signalled their support for the LGBTQ community or that they identify as a member of the LGBTQ community. And that doesn't just target them. That targets all of their friends, their relatives, because it's motivated by a specific characteristic, a person. That's really what we're getting at here. This is not an ordinary crime. This is a crime motivated out of malice, out of prejudice, out of bias.
    I had a question but I've lost it.
    One of the things I'm concerned about is that some speech is very hateful but within the realm of free speech. The danger here from expanding the scope or categories of buildings is that it starts to encroach upon free speech. Then we might run into charter challenges.
    I wonder if either of you would like to comment on that.
    There have been lots of comments on speech, certainly, and it's not an easy issue to resolve, but I do think we have case law that's started to make those definitions.
    Here we're talking about aspects of graffiti. We're talking about violence enacted on spaces. We're talking about things like fire bombing, damage to property, which is different from the notion of freedom of speech. It's certainly something we cherish and value at the university. To have that voice is something I hold as dearly important, because there are many times when I speak out that people call our president of the university to have me fired because they don't like an LGBTQ perspective being shared on issues.
    In a democratic society, it's really important that we aren't limiting that space, but that, at the same time, we're finding the balance to protect vulnerable communities, particularly when it comes to moving from freedom of speech to propagating hate.

  (1715)  

    Okay, I have a final question. Do you see this as a tool that will be useful to law enforcement? Do you think this will help them if we expand this in this way?
    I can't personally speak for law enforcement, but it would be another useful tool. It sends another very powerful message. I think these kinds of changes are only as good as the education that's provided afterwards—the implementation. So there is the question of training and awareness. We still have many police officers and crowns out there who don't have a good understanding of what hate and bias are in our society, and that's a conversation that hopefully will be strengthened as these amendments go forward.
    Thank you very much.
    Thank you very much, Mr. McKinnon.
    We don't have time for a full round, but if people have short questions, I'm happy to let them ask them and get some short answers, hopefully.
    Mr. Arnold had a question.
    Thank you, Mr. Chair.
    I thank our witnesses for being here today.
    This is my first really close look at this bill. I've seen a lot of discussion here trying to define things fairly tightly by way of inclusiveness, by including some things, and then what is not included becomes the focus of discussion.
    In this bill I see the words “primarily used” and in proposed paragraphs 4.101(a), (b), and (c), I wonder why those words are even in there, because to take the word “primarily” out of it would certainly make it apply in all cases. The only problem might be in proposed paragraph 4.101(d).
    I wonder if our witnesses might have a comment on that.
    Certainly, I said earlier that I'm not sure that the word needs to be there. I think it limits the opportunity to use this bill more effectively. Some places are only used occasionally.... As Kris was talking, I was thinking about the straight-owned business that is an ally of the community and has a rainbow flag in the window, and they could be targeted just because that flag is there. So I think there are a lot of limitations when we include the word “primarily”, because that business might not have anything to do with our community other than that it is supportive and is indicating we are welcome, and yet it could be targeted just because it has that symbol there.
    It creates some limitations.
     Thank you, Mr. Arnold.
    Does anyone else have questions?
    Mr. Boissonnault.
    This is tangential, and I hope the chair will allow it, but it speaks to the work that both of you do in your organizations. When you have to respond to an attack, to a broken window or something, it takes money. It takes funding. Also, when you support 5,000 people, that takes funding. I'm curious to know what federal funding, if any, your organizations receive to do your good work.
    Thank you. I have to agree with you, Mr. Boissonnault, that it is incredibly tangential.
     We're supposed to be discussing the scope of the bill, so perhaps you could phrase that as follows, or something like it: in the bill, is there any money you know of that you would get and, if not, in what other ways have you gotten money? I'll be pretty flexible.
    Mr. Ted Falk: That's a huge stretch.
    The Chair: Yes, it's a huge stretch, but given that it's a late hour, let's hear the answer.
    We receive no federal funding.
    Funding is always helpful. The primary goal of a lot of funding is the education about and the implementation of government legislation. As we mentioned, it's one thing to pass the legislation, but it's another thing to ensure that it's for effective and intended uses and that people are knowledgeable about that. Any time we're talking about legislation, I think it's important to ask what the implementation plan is and what resources are going to be put behind it to make it successful.
    Thank you.
    Are there other questions related to the bill? I have one if, it's okay with the members of the committee.
     I've been listening. I fully understand what you were both saying about the targeting of, for example, an allied business that's flying the pride flag, or the targeting of somebody's home, which happens in all communities.
    Do you see a distinction in the targeting of an LGBTQ community centre, or an office that clearly represents a group within the community, or a building that's been rented out for a one-time purpose during pride week when everybody knows that it's an LGBTQ event and there's vandalism, versus against somebody's private home, where in no case, for religious purposes or other purposes, do we recognize that as being subject to this provision?

  (1720)  

    No. To be really blunt, no.
     The ripple through the community is the same. If somebody's home is vandalized and that's a member of our community, we all wonder who's next. We also wonder if that person is going to get caught, because most often they aren't. If they are caught, we wonder if they will be prosecuted, and often they're not.
    I would say that the impact is more about scale, perhaps, than it is about whether there's an impact or not.
    Okay.
    I would agree. Part of the challenge as well is that when we start to parse people from places, because people's identities are not so easily divided, right? We're talking about identity-based crimes, so it doesn't necessarily matter where they happen. The impact they have, the targeting of the very essence of who a person is, is why we have hate crimes legislation to begin with.
    I'm particularly concerned about some of those commercial spaces that serve de facto as community spaces, through this legislation. As I've mentioned, due to circumstances of history, many of the bars and nightclubs that have been fugitive spaces have been the only spaces. I can well recall walking down back alleys where places didn't have doors, because it wasn't safe to put up a sign to say that they were gay establishments. My, how far Canada has come.
     Right now, I think we have a real opportunity to strengthen Canada's leadership on LGBTQ issues, on human rights issues, not just domestically but internationally. There is currently a void globally, and I certainly hope this government will not have any fear of stepping into that void, because, as has been said, the world needs more of Canada right now.
    I will follow up, because I understand what you're saying and I am just trying to better understand this.
     For example, the way the bill is currently worded, as I read it anyway, unless you're defining it as a social space, a gay nightclub wouldn't be covered by the current provisions of the bill. What you're saying is that for the gay community, it is just as much a gathering space and a safe space as a Mennonite cultural centre or a Jewish cultural centre is, because that's where the community identifies, feels comfortable with each other and can gather, and it should be treated equally, just like the other spaces set out here in the bill. Is that right?
     Absolutely. It should be in the definition, so that someone would not have to wonder if that were covered as a social space and somebody would not have to look and say, “That's a commercial space. That doesn't apply.”
    Yes.
    I would hate to see something like that happen or be said to a community that is suffering and hurting right now. We know that those kinds of spaces are the ones most likely to be targeted and attacked.
    Thank you.
    That helps a lot.
    If you recall, after the Pulse nightclub incident, that was one of the conversations in our community. This was a space where people assumed they would be safe, and somebody else came in and took that safety away.
    With all of the spaces, safety is so important for all the identifiable groups. Safe space for queer and trans people is sometimes not so easily identifiable by a particular institution.
    Understood.
    Not seeing any more questions, I want to thank both of you for your compelling testimony today. Thank you for helping us in our study of the bill, and thank you for coming all the way from western Canada.
    The meeting is adjourned.
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