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House of Commons Emblem

Standing Committee on Justice and Human Rights



Thursday, February 23, 2017

[Recorded by Electronic Apparatus]



     Ladies and gentlemen, we are lucky enough to be joined by the National Council of Canadian Muslims. Mr. Ihsaan Gardee, the executive director, will be making his comments.
     Mr. Gardee, we go over to you.
    On behalf of the National Council of Canadian Muslims, I'm pleased to have this opportunity to offer the committee our organization's perspective on Bill C-305.
    Briefly, the NCCM is an independent, non-partisan, and non-profit grassroots Canadian Muslim advocacy organization. Our mandate is to protect human rights and civil liberties, challenge discrimination and Islamophobia, build mutual understanding between Canadians, and promote the public interests of Canadian Muslim communities. For over 16 years we have strived to achieve this mission through our work in community education and outreach, media engagement, anti-discrimination action, public advocacy, and coalition building. The NCCM has participated in major public inquiries, appeared before the Supreme Court of Canada on issues of national importance, and provided advice to security agencies on engaging communities and promoting safety.
    Today, I'd like to offer the NCCM's broad observations on the importance of Bill C-305 and speak from the context of our organization's constituents, that is, Canadian Muslims who have experienced hate crimes against community institutions.
    I'll start with the importance of sacred spaces. Sacred spaces are places that people look toward for inner peace and to re-establish a connection with their concept of the divine, with their community, and with the larger fellowship of humanity. Whether these are manifested as formal buildings such as churches, temples, synagogues, mosques, or gurdwaras, what makes them special is not simply their location, history, holiness, or physical beauty, but their centrality in the hearts, minds, and cosmology of the people in whom they inspire such awe and reverence. Unfortunately, we must recognize and confront the reality that there are those who would seek to attack, violate, and desecrate these and other places with criminal or hateful intent. It is NCCM's position that there can be no valid reason to justify these types of acts. We stand united with all Canadians of conscience, unequivocally condemning such acts in the strongest possible terms.
    As part of its commitment to the very Canadian principles of acceptance, respect, and inclusivity that helped shape the Canadian Constitution and the Charter of Rights and Freedoms, and which are echoed within Islamic ethics, NCCM will continue to highlight bigoted and Islamophobic actions. We further pledge to continue to reach out and support other faith communities that similarly find themselves and their community institutions the targets of hate.
    In terms of the application of Bill C-305 to religious structures and places of gathering, we believe that Bill C-305 helps address the very important issue of mischief motivated by bias, prejudice, or hate based on religion, race, colour, national or ethnic origin, gender identity, or sexual orientation, and protects the values that are integral to Canadian identity. It would protect not only places of worship but also places of gathering where inclusivity should be championed, such as schools, universities, day care centres, and seniors homes. Furthermore, Bill C-305 would provide a form of deterrence for those considering perpetuating crimes motivated by these biases. This deterrence would further help to promote greater inclusivity and acceptance for all Canadians.
    In terms of the relevance and importance of the troubling rise in anti-Muslim incidents, at the NCCM we've seen a significant rise in both our human rights case load, which includes alleged hate crimes and incidents, and cases of alleged discrimination. Most recently, just yesterday in fact, a report came out about a high school in London, Ontario, that was tagged with Islamophobic and anti-LGBTQ hate messages.
    The number of alleged hate incidents and hate crimes alone, when tabulated, also indicate a troubling and concerning trend. Statistics Canada's most recent hate crime data from 2014 shows more than a doubling of hate crimes perpetrated against Muslims over a three-year period. This represents the most significant increase against any religious group in Canada.
    The national hate crime data available through StatsCanada is only published two years after hate crime occurrences. The most recently published report is from 2014. To help address this gap in timing between when this data is available and when these occurrences happen, the NCCM keeps and maintains a dynamic online hate crimes and incidents map, which includes the geographical location and brief description of alleged incidents.
    According to a 2016 Environics research poll, one in three Canadian Muslims reported experiencing discrimination or unfair treatment in the past five years; 62% of Canadian Muslims are worried about discrimination.


     It is also critical to note that up to two-thirds of hate crimes are unreported, according to Statistics Canada's general social survey on victimization. NCCM has found that community members and institutional representatives are often reluctant to report incidents for a variety of reasons, including, for example, fear of further marginalization, fear of retaliation, and feelings that the reporting won't make a difference. Justice Canada says that hate crimes are one of the most underreported crimes in the country.
    In terms of politics and extremism, we must also give thought to what are the social or political contexts that can contribute to an increase in hate crimes. Aside from legislation, it is equally important for us to give some time to thinking about what is and should be where we invest our time, energy, and resources to have the greatest possible impact in trying to, at best, avert what we are seeing in the United States and other places—namely, populist appeals to nativist sentiments—and, at the very least, to find ways to mitigate the impact of this phenomenon.
    While the temptation might be there to smugly criticize what has happened in the U.S. and elsewhere and the vulgar politics and rhetoric that has targeted numerous groups, including most recently the executive order banning people from seven Muslim majority countries, we should also remember that the public discourse surrounding Muslims in Canada has also been at times quite negative. While many in Canada have objected to nativist and identity politics, to be clear, no one is saying that we shouldn't have a robust, even passionate debate about how we best manage our growing diversity, nor that we should not be vigilant about and vociferously defend our cherished rights to free expression.
    At the same time, however, the worry here is that the ongoing problematic political discourse that uses inflammatory messaging and platforms could be used as a rallying cry for those who fear anything that is different or unfamiliar. Right now what is most unfamiliar and different, I would respectfully argue, are Muslims and Islam. In the last few months, Canada has witnessed an increase in xenophobic and racist attacks, culminating in the horrific tragedy in Quebec City. This is the first time, to our knowledge, that a terrorist act of this kind has been perpetrated against a house of worship in Canada.
    Canadian Muslim communities have been deeply frightened and they have been deeply shaken. A recent study at California State University's Center for the Study of Hate and Extremism shows that political rhetoric can influence behaviour and may actually have been a factor in the rising number of hate crimes reported in 2015 against American Muslims, coinciding with the rise of Donald Trump. In other words, what our elected representatives say or don't say matters. We at NCCM have noted a similar pattern that whenever Islam or Muslims are subjected to unfair and negative discourse in the media and elsewhere, there is an increase in the number of reports of hate crimes and incidents. Ultimately, words matter. We saw this recognized by Quebec politicians and officials of all backgrounds in the aftermath of the terror attack on the Islamic cultural centre of Quebec.
    At the end of January of this year, the results of a recent analysis of Canada's online behaviour, commissioned by CBC's Marketplace, suggested a 600% jump in the past year in how often Canadians use language online that is racist, Islamophobic, sexist, or otherwise intolerant. That's a dramatic increase in the number of people feeling comfortable making these comments.
    The media marketing company Cision scanned social media, blogs, and comment threads between November 2015 and November 2016 for slurs and intolerant phrases such as “ban Muslims”, “Sieg Heil”, or “white genocide”. They found that terms related to white supremacy jumped 300%, while terms related to Islamophobia increased 200%. What this suggests is that those who promote intolerant and bigoted views feel more emboldened, and maybe that's at least in part due to the larger racist sentiments that are coming out of the United States and elsewhere.
    The Ontario Human Rights Commission has recognized that “Anti-Muslim discrimination is a leading form of contemporary creed-based discrimination in Ontario. Stereotypes of Muslims as a threat to Canadian security and Canadian values and ways of life have been particularly pronounced...”.
    Those worrying trends are confirmed in a December 8 poll from Forum Research that found that four in ten Canadian adults expressed some level of bias or unfavourable feelings against identifiable racial groups, and the one group most likely to be the target is Muslim. After Muslims, the groups most likely to suffer bias in ascending order are first nations, south Asians, Asians, people of the Jewish faith and, finally, black Canadians.
    Another recent poll from December by Abacus Data had similar findings, including that a large majority of Canadians, 79%, say that there is some or a lot of discrimination towards Muslims in Canada, and two-thirds say the same thing about discrimination towards indigenous people.


     While the majority of Islamophobic sentiment can be attributed to a lack of knowledge or fear of the unknown, it should also be clear that there is also an entire, extremely well-funded and organized Islamophobia industry whose sole purpose is to vilify, marginalize, and target Muslims here in Canada, in the U.S., and around the world.
    In the U.S. alone, over $40 million was spent to perpetuate stereotypes and to spread misinformation about Islam and Muslims between 2001 and 2009, according to a report entitled “Fear, Inc.” by the Center for American Progress. More recent studies indicate that number is now over $200 million. This means our struggle to stand up for the human rights and freedoms of Muslim communities is harder when there are real efforts to poison minds about their presence.
    In conclusion, about a month ago I was in New York City attending a United Nations high-level forum on combatting anti-Muslim discrimination and Islamophobia convened by the permanent missions of Canada, the United States, the OIC, and the European Union.
     At this meeting, a three-pronged approach was identified to tackle this growing phenomenon, which in no particular order includes the following.
    First, civil society coalitions, both traditional and unorthodox, are needed to help build and protect societal resilience against prejudice and intolerance. An example of this would be one coalition called “Shoulder-to-Shoulder”, which has 32 non-Muslim organizations standing up for Muslims in the U.S.; and recently, a joint Muslim-Jewish Advisory Council, or the MJAC, which was formed between the American Jewish Committee and the Islamic Society of North America.
    Second, positive narratives are needed to promote the importance of pluralism and inclusion and the important role played by media in framing social understanding of Muslims and minority groups in general. An African proverb says, “Until the lion has his or her own storyteller, the hunter will always have the best part of the story.”
    The NCCM has been very active in both of these areas. In the question and answer session, I will be happy to give you some concrete examples of programs and resources that the NCCM has developed along with its partners.
    The final area that was discussed was the role of government policy and programs to combat Islamophobia and all forms of systemic discrimination and racism. While we cannot legislate tolerance, we need government to take the lead in examining, studying, and then developing and creating policies to explicitly combat Islamophobia and anti-Muslim discrimination, and to build on existing diversity, equity, and inclusion policies and programs that take into consideration our growing country's changing demographics. Muslims are experiencing increased targeting now. Tomorrow it will be somebody else.
    The safety, well-being, and sense of belonging of any faith or minority community are linked to their ability to participate in their communities and institutions. For this reason we are calling on all parties to support Bill C-305.
    Subject to your questions, those are my submissions.
    Thank you.
    Thank you very much.
    We will now move to questions.
    Mr. Cooper.
    Thank you very much for your testimony.
    You certainly talked a great deal about a range of issues that are important to the Muslim-Canadian community, but I want to focus on what we're here to discuss, which is Bill C-305.
     You touched a little on Bill C-305, but I wasn't clear whether you support it in its present form or have any suggestions of potential amendments to deal with some of the issues you touched on.


    Thank you very much for that question.
    As I mentioned in my closing statement, we are calling on all parties to support Bill C-305.
     In terms of suggested amendments or improvements, I would encourage the committee to make sure that it hears from a variety of stakeholders, including legal specialists and others, to make sure that the language used in making changes to our criminal law is consistent with our charter values and Constitution.
    You don't have any specific amendments?
    No, not at this time, but we will be putting in a written submission as well.
    Okay. So without saying more, your organization supports the bill in principle.
    That's correct.
    A series of mischief-related incidents here in Ottawa a few months ago targeted the Jewish community, the black community, and the Muslim community. Could you talk about any data your organization has in relation to the uptick in mischief-related incidents? I know you talked about anti-Muslim sentiment and how this has been expressed in a number of ways, but I am referring here to incidents that might fall within the scope of this bill.
     I want to make sure I understand the question. You're looking for specific data that we have collected—
    —about mischief-related incidents to institutions.
    Targeted toward the Muslim community.
    Targeted towards the Muslim community, yes.
    As I mentioned, we do have that data. It is available on our website. We do have and maintain an online interactive hate crimes and hate incidence map that categorizes the types of incidents, whether verbal harassment, physical harassment, vandalism, and so forth. I can certainly provide you with that data; I just don't have it immediately in front of me right now.
    We heard at the last committee meeting that under this particular section of the Criminal Code, there has only been one recorded case of someone being been prosecuted under it—that is, only one reported case. Nonetheless, regardless of whether it or other sections of the Criminal Code are used, I would think your community takes comfort in the fact that there is a specific section dealing with the specific targeting of a religious or other group. Such incidents really are, more than other acts of hate, about targeting an entire group of people to create a culture of terror.
    What do you say to that?
    There was a study by the Department of Justice recently that talked about understanding the community impact of hate crimes. It quotes David Matas as saying, “People live in community. Rights are exercised in community”, and the commission of a hate crime is not just against the individual but against the entire community.
    It's important to consider the impact and how the impact on the community is particularly devastating, as these sorts of crimes are message crimes as well. The perpetrator is sending a message to particular members of a certain group that they're despised and that they're devalued or unwelcome in a particular neighbourhood or community. It's also important to consider the impact on the individual victims themselves. The victim may begin to reject aspects of themselves that were the target of the attack or associate part of their identity with fear, loss, and vulnerability.
    I can certainly tell you that the feedback I've had from within the Ottawa community following those attacks, which you mentioned, both from our inter-faith partners in the Jewish community, in the black community, and the Christian community as well, shows that there has been real fear generated by these attacks. It resonates. These are places people go with their families, with their children, and they show up on a day of worship and see these things, and it's deeply, deeply unsettling.
    Thank you.
    Thank you very much, Mr. Cooper.
    Mr. McKinnon.
    Thank you, Mr. Gardee.
    In your testimony, you mentioned the importance of Bill C-305. You mentioned sacred spaces, including buildings. I wonder if you had anything in mind other than buildings—things like parks or open spaces?


    I think it's important that we recognize that hatred can target anywhere. Obviously, there are certain places that are more likely to be targeted, and of course I can understand that you want to avoid having and creating a growing and growing list of different places. I think the ones that have been identified are the ones that have shown the highest number of targeting, so I think it's appropriate that they be highlighted. This is subject to how things change, including the types of crimes that are committed, going forward. I would encourage the committee and government to continue to monitor the situation and, should there be a need to look at it again, to do so.
    One of the things I keep hearing over and over again is the concern that the description of buildings and associated environments is rather broad. It potentially covers all public space and all public buildings in the country. It has been suggested that the effect of that would make all kinds of mischief that is now mischief into a hate crime, which would exacerbate the statistics for hate crimes, but not necessarily do anything to mitigate the occurrence of hate crimes.
    Would you have any comments to that?
    I want to make sure I understand. Is your concern that there is an overly broad definition and it might be applicable to a variety of different spaces?
     Right now you could apply this, or would seem to apply, to city halls, public arenas of any description, used in whatever way, and public parks that would be associated with those things, gymnasiums, schools—everything basically that's public.
    In my reading of the proposed bill, it was pretty clear about which kinds of spaces would be added to the definition, including places like community centres, seniors homes, and so forth. I didn't see any reference to the places that you mentioned. If they are included, then obviously I think that's something that should be discussed. You want to make sure that you are not creating an overly broad list that you will have to continue to amend, but to look at where these types of crimes are most prevalent.
    What I'm looking at is proposed paragraph 430(4.101)(c) that says:
a building or structure, or part of a building or structure, that is primarily used for administrative, social, cultural or sports activities or events—including a town hall, community centre, playground or arena—, or an object associated with such an activity
    And then it carries on to paragraph (d) and talks about seniors residences. No part of this identifies these buildings or these structures or parts of structures with a religious organization or any kind of faith, any kind of ethnic group or racial group. It's very broad, in my mind.
    Do you see that, and if so, do you see it as a problem?
    In terms of the actual events themselves, I think you need to look at a combination of things. You need to look at the location, as well as any indication that there was motivation of hate.
    For example, I'm just thinking that the Muslim community has prayers that it conducts sometimes in public halls because spaces in mosques are too small to accommodate everyone. If you had, for example, a hate crime committed there, with somebody spray-painting, “Go home, Muslims”, or something like that on the building itself, even though the building is not purposed for religious use, one would have to conclude that there was a link there, if you had that kind of explicit connection between the crime and the motivation and the fact that there was recently an event there where a large number of a particular group may have been.
    I think the current legislation mentions the motivations: motivated by bias, prejudice, hate, and so forth. Then it applies an additional sanction on cases where that has been expressed against a religious building. To me, that tends to focus it as much more serious when it's actually focused on a place of worship. It's still bad stuff, still hateful, but it's not necessarily a hate crime unless it's focused on a specific kind of building. This would broaden that quite extensively. To my mind, what it really means is that the location doesn't matter as long as it's in public view, so much as you can identify that it is motivated by hate, bigotry, prejudice, and so forth.
    What would you say to that?


    I would be inclined to agree with you, that it's necessary to be able to identify that there are indicators of hate motivation behind the particular act of mischief, in order to make those kinds of conclusions. I think we need to look at that and look at the incident itself, as I said, to see the context and make that determination on a case-by-case basis.
    Thank you.
    Thank you very much.
    Go ahead, Mr. MacGregor.
    Thank you very much, Mr. Chair.
    I certainly appreciate your appearing before the committee today and providing your expertise on this, with the background that you have with respect to some of the hate crimes that have been inflicted on the Muslim community and so on and so forth.
    I wanted to ask you about another specific section of the Criminal Code. Section 718.2 of the Criminal Code gives a judge some discretion to add on to a sentence if the judge feels that the offence was motivated by bias, prejudice, or hate based on all of the identifiable factors, including religion.
    Does the NCCM have any experience with how judges have used their discretion in the past? Can you provide us with some background on that? Has that section of the Criminal Code that allows the judge that kind of discretion been helpful in itself? Can you provide any commentary on that?
    To be clear, I'm coming to the committee today speaking from a community-based perspective and not necessarily as someone with a background in law. We do have lawyers and people on staff who would be able to provide a more in-depth answer to your question as it relates to the Criminal Code, the section that you highlighted.
    Again, I think it's important, for the purposes I'm here today to speak on behalf of the NCCM, to again emphasize that this particular amendment, this proposed bill, is something that I think the majority of Canadian Muslims would be able to get behind and support as a way of providing a sense of greater comfort, knowing that there is concrete action being taken by government and by our judicial system to address this growing phenomenon.
    I'll switch back to the bill at hand, Bill C-305. I think Mr. McKinnon's line of questioning perfectly encapsulates the struggle this committee is having.
    A previous witness made mention that he'd like to see this bill both broadened and to become more specific at the same time, if that makes sense to you. One of the issues that have been raised in the specific language of this bill is that proposed paragraphs (a) through (d) use the phrase “primarily used”.
    I wanted to receive your feedback. Say, there is a building that is not primarily used by an identifiable group, but hosts a regularly scheduled meeting by them once a month. It's also a building that's used for other activities. Would you like to see the language in this bill amended to try to capture that as well? Is that something you'd be supportive of? I want to get your feedback, because we're trying to find a way forward with this legislation.
    I appreciate that and I understand the dilemma. As I mentioned earlier, you worry about growth and creep and having to increase the number of places that are included.
    Again, I would point to the fact that hatred generally knows no limits and no bounds, and it targets all groups. The commission of a hate crime doesn't necessarily have to be isolated just to a place of worship. It can target other places, and that's why I think it's so critical that we look at the markers that demonstrate that it was motivated by hate, and use those as a guidepost when we are assessing each different situation.
    Even if a building is not primarily used for the purposes described in the bill, but used on an occasional basis, then there is an indication there that the crime was committed directly targeting a particular community. It would seem to make sense to look at that very seriously.


    Previous witnesses, such as from the LGBTQ community, have identified that historically there have not been many safe places for them to gather, so they've relied on allied businesses, or even identifiable streets, which are not really covered in this legislation.
    I guess that's a struggle for us. These places are identifiable places with an identifiable group. If someone were to target them with hateful graffiti directed specifically at that group, does that simply become mischief against city property rather than something meriting a stiffer sentence under this proposed legislation? That's my line of questioning. Do you see areas, based on your group's own experiences, that have been excluded by this and that we should broaden while at the same time becoming more specific? You see the struggle we're having here.
    I think the example you used of the LGBTQ community was an excellent one, that they can sometimes be connected with various other different organizations, allied businesses, and so forth, and as a result of that, be exposed to potentially greater targeting. I would not be surprised if you were to find similar types of arrangements in other faith communities where they have connections to other, different types of organizations, and they use different spaces that could potentially open those spaces up to targeting as well, based on their affiliation with that particular group.
    Okay, thank you.
    Thank you very much.
    Mr. Bittle....
    If not, would you mind if I asked a couple of questions?
    Yes, go right ahead.
    First, thank you very much for coming today. It's great to have you here. I want to come back to this narrowing versus broadening issue. One of the issues that has been raised by both my colleague Mr. McKinnon and Mr. MacGregor is the bill's wide scope.
    Let's start with its scope. Do you agree with the intention of the bill that whether it is a religious institution, a black community institution, or a gay institution, it should be treated equally under the bill?
     Yes, we do.
    You do. Okay.
    Would you agree if I were to say to you that something that happened at a mosque, a Muslim community centre, a black community centre, or a gay community centre—where it was identifiably linked to the group that was targeted—is different from an attack on a city hall or an arena where there are no...? I'm not saying there were Muslim prayers at the city hall or the arena. These groups didn't buy space there. It was just an attack on a city hall or an arena. Would you see a difference in how the Muslim, Jewish, or other targeted communities would react to a swastika being painted on a temple versus a swastika being painted on a city hall?
    Obviously, sacred spaces, as I mentioned, hold a particular importance in the hearts and minds of those who frequent them. At the same time, I think the hatred committed—such as a swastika drawn anywhere—would be offensive to anyone. Regardless of where it is posted, it's equally offensive. Again, I think we should look at the hate and the motivation behind it, not necessarily the location in isolation without that motivation.
    I understand, but this law is basically geared toward a longer potential prison term for an act of mischief, or a higher fine for an act mischief, than a different type of act of mischief. As Mr. MacGregor mentioned, if it's a swastika were painted on the city hall, couldn't it be considered an aggravating factor in sentencing? There's been a contention by some that you need to restrict the number of buildings or locations involved to show that there's a real seriousness there because these are protected or sacred spaces. This is why the current law only grants this added sentence for an attack on a church, a mosque, or a synagogue, or something similar to that. But you still believe that there should be a broader definition of buildings?
    I think you need to look at it, and I think you need to look at the context, as I said. Even if there is no direct connection to a particular faith community, many of the employees who work in a particular building may be of a particular faith group. The school in London, Ontario, that I mentioned has people from various faith backgrounds, but also many Syrian newcomers. There was some very disturbing messaging there. I think we need to look at the context and at the messaging, and take our cues from those.


     I understand what you're saying, that if it's a public school where a very large percentage of people are from one faith community, you can have an issue. I do understand that, but at the same time, you'll have a huge number of crimes that will be labelled as hate crimes. I guess the question is, do you believe that's really necessary? Again, I understand, and I'm not minimizing an act of vandalism or mischief against a public school. If I were to try to limit it to say that if it were a building, property, or location owned, leased, rented, or occupied by one of the groups listed, it should be subject to protections? Would that not be sufficient?
    That it would not be sufficient just to have that as a limiting factor, but that the place would have to actually have a formal connection to the group?
    Again, I would say, even if a particular building or a particular place doesn't have a formal connection to a particular group, that doesn't stop people who espouse these hateful ideas and ideologies from trying to marginalize and vilify groups based on their own perceptions that a place might have a connection to one of those groups.
    Okay. I appreciate that.
    We'll go to short questions, for anybody who has them.
    Mr. Cooper.
    Just to follow up the line of questioning by Mr. Housefather, based upon what I'm hearing you say, you would support encompassing all types of property. You make no distinction at all between whether it is a school, a synagogue, or a mosque. If the act is an act of mischief that is motivated by hate and that expresses hate, your position is that, regardless of what property specifically is targeted, this section of the act should encompass all of those acts of mischief. Is that, in essence, your position?
    That's correct. You have to remember, as I mentioned, that these are message crimes, and that the message is still heard, even if it's targeted at a place that is not traditionally frequented by a particular faith group. It's still heard by the people from that group, as well as by others within society. It reinforces the “other-ization” of particular groups and creates a sense of alienation and marginalization in those groups, even if there is no formal direct connection to that particular place.
     Thank you. I think that's well understood.
    Are there any other questions?
    Do we have unanimous consent for Mr. Mendicino to ask a question?
    Go ahead, Mr. Mendicino.
    Thank you, Mr. Chair.
    Just building on the line of questioning by both the chair and Mr. Cooper, the two categories that seem to engage the section that is the subject of this act are hate speech and buildings and structures.
    Based on your evidence, and as I understand your answers to the chair and Mr. Cooper, if we do away with any kind of defining of the categories of structures, does that render that second category essentially nugatory? What's the point of having any category?
    I ask this because, if you go back to the original intent of Parliament when it created this section, it originally dealt specifically with building structures that are obviously and publicly identifiable as being used primarily for religious purposes, structures in those explicit categories that are already there. If we do away with that, what comments can you offer about what that does to the original intent of the section?
    I think it would seem to broaden it and it would certainly seem to be an attempt to capture more of what is actually happening out there. If you maintain it as it is, you could have incidents occurring that are increasing the sense of alienation and marginalization of specific groups while appropriate attention and resources are not being provided by government through policies, as I mentioned in my submission, that specifically combat Islamophobia, anti-Semitism, racism, homophobia, or any type of xenophobia.
    Also, building on the existing policies that we have to promote things like multiculturalism, inclusion, and so forth would seem to me to be important to consider as well.


    Just to get back to the premise of my question, does it make sense to your mind to still have buildings and structures as a second criterion that engages this section for the purposes of special condemnation of hate speech expressed in certain places that relate to the identifiable protected group of those who are religious?
    I think it makes sense to maintain continuity, to certainly have that there. But at the same time, it should recognize that these spaces are not the only ones that are targeted and that there is a growing trend of xenophobia targeting various groups. Currently Muslims are being targeted, as I mentioned. Tomorrow it will be another group. If you're not actually capturing that, then you don't have a real sense of what's actually going on.
    For those other protected groups, I don't know if you're familiar with the Criminal Code or not, but under section 718.2, there are other sentencing principles that a trial judge can look at, including whether or not the offence is motivated by hatred based on all of the other groups.
    Are you familiar with that section?
    As I mentioned, I don't come from a legal background but I am surrounded by lawyers. I'm sure I can get back to you with a more qualified statement regarding your question.
    Thanks, Mr. Chair.
    Thank you very much.
    Any there other short comments?
    If not, I thank you very much for being here with us today. It's very much appreciated.
    We'll take a short break while the next witness comes up.




    Ladies and gentlemen, we're going to reconvene.
    We are very lucky to be joined by Mr. Glenn Gilmour, counsel from the criminal law policy section of the Department of Justice, who is here to answer questions from the committee relating to this bill.
    Mr. Gilmour, welcome.
     Did you have anything you wanted to say before we ask questions?
    I have a couple of comments I would like to make first just for the record.
    A part of it might be a bit of a history lesson for people around the table, but I thought I'd start with the discussion about the provision dealing with sentencing, subparagraph 718.2(a)(i) of the Criminal Code.
    That was originally created in 1995 by the then-Liberal government under Jean Chrétien. I believe it was a campaign promise that had been made in the 1993 election. I thought I'd quote something that Allan Rock had said at that time. In his appearance before the Standing Committee on Justice and Legal Affairs in 1994, he discussed the hate crime sentencing provision that was proposed in the bill at that time, which subsequently enacted 718.2(a)(i). He said:
Why is it there? I think all of us are aware of the appalling increase in recent years in the incidence of hate crimes in our society. Every party that ran in the last election expressed its concern about that phenomenon. I think we join together regardless of party stripe in agreeing that we cannot tolerate hate crimes in Canadian society.

It's there because of certain commitments made by the government, of which I'm a member, during the election and since it. It's there because B'nai Brith, for example, has told the Department of Justice that there are now over forty organized hate groups in Canada actively at work every day of the week.
    He went on to say:
When someone goes onto my property and spray-paints graffiti on the side of my house, that is a crime that should be dealt with accordingly. I am the victim. But if they walk into the grounds of a synagogue and spray-paint a swastika on the side of the wall, the attack is not only against that property and that owner; it's against the Jewish faith as a whole. Every member of the Jewish faith is intended to feel intimidated and more vulnerable because of it. That is what distinguishes crimes motivated by hate
    —presumably from other regular crimes that are not so motivated.
    I put that on the record to indicate that when the sentencing provision was enacted in 1995, it was because of a strong feeling that Canada needed to enact special legislation to deal with hate crimes and to more appropriately denounce the seriousness of those kinds of crime.
    Therefore, you have 718.2(a)(i), which reads:
A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor
    You have a very strong sentencing provision in the Criminal Code that was originally created way back in 1995. The concerns for putting it in there, I think, very much mirror the sorts of concerns that have been expressed around the table by some of the witnesses who have appeared before this committee.
    The next change that happened was the creation of section 430(4.1) of the Criminal Code, the current hate crime of mischief directed against property “primarily used for religious worship”. It's motivated by hatred based on various criteria.
    The reason for the limiting of that offence to the concept of protecting property primarily used for religious worship was that it was thought that that particular kind of mischief would create a chilling effect on those who wanted to practise their religion. Therefore, it was designed specifically to protect that kind of property and not any other kind of property, even though when the bill that the offence was part of—the Anti-terrorism Act of 2001—was being debated in Parliament. There were some organizations that came before the House of Commons and the Senate and argued that it should be expanded to include other kinds of property.
    I'd like to correct what appears to be a misconception that occurred in the testimony given the other day by Mr. Arya. There was a question asked about a house of worship being vandalized and the maximum punishment of 10 years in jail for that. If a Jewish community said it had been vandalized, the maximum punishment would be two years in jail. In case there is any misconception, that is incorrect. The way that the general mischief offence works in the Criminal Code is that it can either be prosecuted by way of indictment with a maximum penalty of 10 years in jail, or simply by way of summary conviction, which is a maximum of two years in jail.


     The way the choice is made whether to proceed by indictment or by summary conviction depends not on the value of the damage to the property, but on the value of the property itself. Under the general mischief offence, if I were to vandalize a home, on the assumption that most homes these days cost more than $5,000 or less, it would be the general mischief offence that would apply, which has a maximum of 10 years in jail. That is the same penalty that is proposed in the private member's bill C-305. It's also the same penalty that currently exists for the hate crime mischief offence.
    I also want to briefly mention that there had been mention of some statistics published in recent years of hate crimes that have been committed. According to my analysis of the testimony, the most recent statistics quoted for the committee were those from the year 2013. In fact, last year there was a table published by Statistics Canada that gave hate crime statistics for the year 2014. It was just a table; it was not in the form of a regular report with analysis. According to those tables, in the year 2014, the total police-reported hate crimes—and these are reports that are made by the police to Statistics Canada—was 1,295. Of those, in terms of the violations of the criminal law that occurred, the total of all violations to the criminal law that the police categorized as hate crimes was 1,170. Of those, 523 were mischief, and mischief in relation to religious property motivated by hate was a total of 89.
    I just wanted to bring those particular issues to the attention of the committee.
    Thank you very much for bringing those.
    I just want to clarify one point in your correction. The difference, as I understand it, would be that in a summary conviction, if it's mischief related to religious property, it's an 18-month offence, and it's only six months at maximum if it's a property valued at more than $5,000.
    I think the hate crime mischief offence, as it is currently worded, would allow for a maximum punishment of 10 years in jail.
    But the minimum is six months in one, and 18 months in another, is it not?
    There is that.
    That's the only distinction, essentially that—
    That's the only distinction.
    —the minimum sentence is six months in one and 18 months in another.
    In terms of minimum sentencing, that's correct.
    Right. That's the only logic for the distinction here because, as you said, almost every property is valued at more than $5,000. So the only distinction is the minimum sentence on summary conviction.
    It's the maximum on a summary conviction.
    A maximum on a summary...? I thought it was a minimum.
    No, it's a maximum on a summary conviction. There are two ways of pursuing it. If you go under summary conviction, you will have six months, and if you go on to an indictment, it would be 10 years.
    The distinction is that the maximum you could get if you proceeded by way of summary conviction is two years. It's not as if there's a minimum penalty for the summary conviction offence. It's what the maximum penalty is for a summary conviction.
    There is that difference. But certainly in terms of damage to a structure such as a building, I just wanted to make sure people understood that it would fall under the general mischief offence offence with the higher threshold for punishment.
    That's understood.
    Can you guys come back to...because I want to understand exactly the distinction. My understanding of the distinction was related to the 18 months versus the six months, and that's pretty much it.
    Yes, that's pretty much it.
    Yes, okay.
    Thank you so much.
    Let me go around for questions. Whoever has questions for the Department of Justice, please put up your hand.
    Go ahead, Mr. McKinnon.


    Thank you for coming today.
    The problem we're wrestling with is whether we can expand this to cover spaces or places that are primarily associated with groups other than religious organizations or faiths, such as LGBT groups, racial groups, ethnic groups, and so forth. I understand that the purpose of limiting it to religious or faith groups at this point is to basically draw a line between hateful speech that is just free speech and speech that's raised to a higher level by targeting a core symbol of a faith, for example.
    I think we'd like to see some sort of way, some sort of language, that would let us expand that sort of treatment to ethnic-based groups, racial groups, LGBT groups, and so forth. Can you tell us how to do that?
     I can't give you the government position on the bill at this time. It would be inappropriate for me to do so. However, I think I can maybe make some comments to help you in your considerations.
    As I mentioned, subparagraph 718.2(a)(i) of the Criminal Code, the sentencing provision, is very broad in scope. Even under the current law, without Bill C-305 coming into effect, if there was mischief committed against a space of some kind that the LGBTQ+ community were engaged with, that would be caught by the hate crime sentencing provision, assuming that the people who committed the vandalism were caught, charged, prosecuted, and found guilty beyond a reasonable doubt of having committed the mischief with this hate motivation in their mind.
    One question you might want to ask is the degree to which an expanded hate crime mischief offence would have consequences for the hate crime sentencing provision in the Criminal Code. As a general rule, criminal offences are designed to be very general in nature, to have very broad application in scope—for example, crimes such as assault, assault causing bodily harm, and the particular factors that go into play in deciding whether the sentence should be a relatively light one or a higher one are things that are taken into account at sentencing by the judge. Thus, in a sense, the expansion in Bill C-305 to include all other grounds or properties is a deviation from the standard way in which crimes are usually created, where you have a very broad crime and the factors are taken into account at sentencing.
    Parliament can decide, of course, in its wisdom, what it wishes to do, but I think it's reasonable to ask what possible effects such a large expansion could have on the hate crime sentencing provision in the Criminal Code, which was the original provision set out in the Criminal Code to deal with hate crimes way back in 1995.
    I hope that answers your question somewhat.
    Are you saying, sir, that if we expand this the way we're thinking of, to include other buildings, other kinds of properties, that it would harm our ability to sentence as hate crimes?
    Well, the hate crime sentencing provision applies to all crimes in the Criminal Code, including crimes of violence and crimes against property. As a conceptual issue, the more one expands a particular crime into an area that has already been covered by an existing Criminal Code provision, it does then, I think, raise the question of what effect that would have. I don't know what the effect might be, but could it have the effect of watering down the hate crime sentencing provision? I'm not entirely sure, but I do know, and this is something for you to consider, that in 2014 the Law Commission of the United Kingdom published a report entitled “Hate Crime: Should the Current Offences be Extended?”
    They have certain hate crimes in there, specific hate crimes, but they also have, as we do, a provision dealing with sentencing. One of the issues they raised in the report was whether the expansion of the aggravated factors would have potential deterrent effects. I think one of the arguments that has sometimes been made around this table is that an expanded hate crime in this area might have a positive deterrent effect. So the question they asked was whether extending the offences would have a greater deterrent effect than pre-existing equivalent non-aggravated forms of offence. It goes on to say the following in its discussion of this:

there is significant doubt over both the direct and the general deterrent effects of criminal offences, their creation, prosecution or punishment. We consider that attributing any direct deterrent effect to extending the aggravated offences would be open to further doubt, in that the conduct involved is already criminal. People who are inclined, for reasons of hostility towards a victim's disability, sexual orientation or transgender identity, to commit one of the offences capable of being aggravated would probably not be deterred from doing so simply because a new criminal offence has been created with a higher potential sentence or an “aggravated” label.
    It goes into somewhat more detail, comparing creating an aggravated hate crime and looking at the general sentencing provisions in British/U.K. law.
    So you might want to have a look at that particular report as well for your deliberations. It's available on the Internet; just type in “Law Commission hate crime” and it will pop up.


     Thank you very much.
    Mr. MacGregor is next, and then Mr. Bittle.
    Thank you, Mr. Gilmour, for coming today and for providing this much-needed technical analysis of the bill.
    You may have already covered my question a bit in your answer to Mr. McKinnon. Is it better from a policy point of view to target a behaviour, or the location where that behaviour occurs? You already mentioned that under section 718.2, judges have the discretion to add to a sentence for any kind of offence, if it was motivated by bias or hate against an identifiable group.
    If someone commits mischief today and it's clearly identifiable as motivated by hate against an identifiable group, what I'm reading is that section 718.2 allows a judge to make the sentence far greater than if it had been committed by itself.
    The effect is, as I understand subparagraph 718.2(a)(i), that it's not a discretionary issue for the judge. It says the judge “shall...take into consideration”.
    It doesn't change what the maximum penalty is for that particular crime. What it means is that the judge is to take that factor into consideration when deciding, within the range that's provided by the criminal law up to the maximum sentence already provided, at what level the penalty should be. If it's motivated by hatred, the idea is that the judge would take that into consideration in basically moving the penalty upward from what would normally be the penalty imposed, had the mischief not been committed because of the hate motivation.
    That's how it's designed to work. It doesn't bump up the maximum sentence that's provided for the crime.
    Thank you.
     Going into the actual wording of Bill C-305, if you look at proposed subsection 430(4.101), paragraphs (a) through to (d), we had witnesses talk about the use of the phrase “primarily used”. Is the use of that terminology going to be problematic in excluding certain types of property, or do you think it would be best for us to modify that wording to make it more encompassing?
    A large part of the story from this committee so far has been about the language in this and whether we need to broaden it while being more specific. If you can help direct us to the goal line, that would be much appreciated.


    As you say, I'm not in a position at this point in time to comment on what the government's position is on the bill, but I can comment on the effect.
    Yes, on the effect of that phrase.
    Right now, you're right that paragraph (a) has basically the same wording as we currently have for the current hate crime mischief offence, which uses the words “primarily used for religious worship”. My guess would be that in crafting paragraphs (b), (c), and (d), the drafters of this bill decided to use the same terminology for the remaining parts; thus in paragraph (b), for example, it would be a building that is primarily used as an educational institution—for example, a university or a community college.
    If one were to take “primarily” out and just say “that is used”, then it broadens the scope considerably, because it really wouldn't matter what the primary use of the building was; it would matter more what it was being used for at the time, presumably, that the mischief took place.
    It's the same with the other paragraphs as well. Removing the term “primarily” and just using the term “used” would be definitely an expansion of the kinds of buildings that would be protected by the bill.
    Thank you.
    Thank you so much.
    I would like to ask questions in regard to the underpinnings of the argument you brought forward. You started with the 1995 rationale behind the bill. I appreciate that it was a “Liberal promise made, Liberal promise kept” type of situation.
    It was clearly not.
    Some hon. members: Oh, oh!
    That said, it's now 22 years later. If we're looking at the public's view and Parliament's view, especially of the LGBTQ population, in terms of 1995 and now, why are we anchoring ourselves in public opinion and Parliament's view from that former time? I'll give you an example. You mentioned that this is a unique offence and that criminal law tends to be more general, but we just heard from a police officer, who specializes in hate crimes, that, I believe, 26 or 28 homicides happened in Ottawa last year and that people were upset by that. However, a series of hate crimes happened over a two-week span and there were public meetings and people were terrified. This seems to be a crime that can shake a community to its core, even more so than homicide, which seems to be irrational, but it is the reality of this.
    Why should we continue to anchor ourselves in that rationale, given society's movement and the unique nature of this offence?
    My reply to that would be, I suppose, in part related to Bill C-16,, the bill currently before the Senate on expanding not only the definition of “identifiable group” but that would also amend the hate crime sentencing provision in the Criminal Code to add both gender identity and gender expression to that provision. In that sense, the hate crime sentencing provision, once Bill C-16 is passed, would reflect current thinking by Parliament on the need to protect groups that had not been specifically singled out for protection before.
    The other part I would mention is that Bill C-305 only focuses on mischief committed against various groups when that is motivated by hatred. It does nothing to focus on violence against persons when that violence is motivated by hatred based on various criteria, such as sexual orientation, gender identity, or gender expression. The way the current law works is that, for those kinds of incidents, say assault or assault causing bodily harm, the sentencing provision in the Criminal Code, in 718.2(a)(i), is used to adequately denounce and punish such conduct, not Bill C-305.


    Can I follow up and, then, Mr. Cooper?
    I want to come back to Mr. Bittle's question because I think it's a good one. Based on a lot of what you're saying, it sounds like this whole idea of protecting a certain category of building is probably not what you may have thought was the greatest idea in the first place, but it exists. There is a special protection, which creates a maximum sentence of 18 months instead of six months on a summary conviction, with respect to damage to this type of property. We're only dealing with mischief now. We're not dealing with other types of hate crime.
    You talked about the original rationale that Parliament had many years ago. They believed that there would be a chilling effect on religion and that's why they chose to single out houses of worship. How is singling out houses of worship...? For example, as a Jew, I don't know how I would react any differently if it were an attack against a synagogue or a temple versus a Jewish community centre or a Jewish school. What is the rationale for excluding a Jewish community centre and a Jewish school, or a Mennonite community centre with a Mennonite school versus the church? I don't understand that.
    My understanding is that the reason it was originally limited to property primarily used for religious worship was that, in particular, could interfere with the freedom of religion in the charter. In a sense, it was tied to the charter right of freedom of expression. You're absolutely right in terms of how a community feels, that if a Jewish community centre were attacked, we've heard testimony that the impact on that community is the very same as if a synagogue were attacked. I do not dispute that at all. Of course, at the end of the day, it is up to you as parliamentarians to decide whether there is a need to change the original rationale for what is now the current law into something broader.
     I'll follow up on Mr. Bittle's point and then get to Mr. Cooper. In 1995, gay people couldn't get married in this country and there were no rights for transgendered individuals whatsoever. Perhaps our view today that the right of the gay community to feel safe going into its buildings is the same as the right of a religious community to go into its buildings, or the right of a racial community to go into its buildings. So the rationale may have changed because the way hate crimes today happen may have changed, and our view of the rights of those groups may have changed, which is why we're dealing with Bill C-16 in the first place.
    Anyway, those are just my thoughts.
    Mr. Cooper.
    You read my mind because you asked the very question I was going to ask.
    Well, thank you.
    Mr. Bissonette.
     Mr. Boissonnault, oh, my God, I'm so sorry,
    That's okay. We'll suppress the “o” for a moment and bring it back.
    Thank you very much. I appreciate your clarification of what we intend to do here at the justice committee.
    I have a couple of “how” questions. How would we best ensure that gender expression is protected in this legislation? I see it's not there explicitly, so I'm seeking your thoughts on that.
    I'm going to give you two concrete examples. In Edmonton every month there is an event that brings the LGBTQ2 community together and it uses a different venue every month. It could be the Citadel Theatre, it could be the Yardbird Suite, and just last weekend it was the Needle Vinyl bar on Jasper Avenue.
    People know about that from social media; they know in the community when we're there. Where, in the legislation, could we best have a provision so that if mischief takes place while the gay community is congregating in that place, at that time, police can then follow up and charge people if they can catch them?
    The same would apply to a building where a Jewish or a Muslim community would be using another space temporarily and they are there regularly. Should mischief happen at that time, how could we make sure that's covered so that it's not just the buildings owned by, and always used by, the organization, but places where there is also temporary, even periodic use, by marginalized or targeted communities?
    I have a couple of comments.
    I'll just reiterate that even under the current law, without Bill C-305, those sorts of incidents could be caught by the sentencing provision in subparagraph 718.2(a)(i).
    If the desire of parliamentarians is to expand the scope of the bill so that temporary use rather than long-term or primary use of a building for, say, an LGBTQ community would be caught by its scope, then it would seem to me that one would have to change the “primarily used by” provisions. It's broader in scope. Let's say you're going to a bar and mischief is committed against the bar because there are members of the gay community inside that bar. If you were to ask me, in the way this bill is currently worded, I don't see it, by my reading of it, covering that kind of activity.
    As I mentioned, it would be covered by the hate crime sentencing provision under the general mischief offence because, presumably, a bar would be worth more than $5,000.


    That's interesting.
    I think it bears being put on the record that where the community finds itself in a challenge, not in my city only but also across the country, is that when such an incident happens, the police are not always properly equipped to see that as mischief versus a hate crime. It's not a sufficient threshold to be considered a hate crime, so the case never even gets taken up.
    If we were able to change that “primarily used by” provision, it would then open up and be something that the police could pursue as a mischief charge, not necessarily as a hate crime.
    So that's helpful, and I appreciate that.
    On gender expression, just add it after gender identity?
    As you know, Bill C-16 refers to both gender identity and gender expression. To the extent that this bill only refers to gender identity, it is inconsistent with current legislation in the Senate, which has been already approved by the House. I'm certain that the government is aware of this inconsistency.
    Thank you very much. I appreciate that.
    Thank you.
    Are there any other questions from anyone?
    If not, I want to thank you so much for coming to testify before us today.
    Thank you.
    It's much appreciated.
    I would like to ask the committee members to stay for one second. I just want to go over scheduling with everyone.
    Basically, we've discussed doing clause by clause on Tuesday, March 7, when we come back, which would mean that the deadline for amendments would be 5 p.m. on Thursday, March 2, to be distributed on Friday, March 3. Is that still okay with everyone, or do we want to delay anything? Is that enough time for everyone? The alternative is doing it on the Thursday and giving us more time. It's whatever you want.
     Probably Thursday would be preferable, right?
    We'll move it to Thursday, with the deadline being Tuesday?
    Yes, exactly.
    We won't have a meeting on Tuesday, and we'll have the meeting for clause by clause on Thursday. Is that okay with everyone? It gives us more time.
    Some hon. members: Agreed.
    The Chair: Okay. Let's do that.
    Thanks, everyone.
    The meeting is adjourned.
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