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Results: 1 - 8 of 8
View Dan Albas Profile
CPC (BC)
Thank you, Mr. Chair.
I would like to thank both witnesses for appearing here today.
I know from my previous private member's bill that certainly it is a lengthy process, so I commend Mr. Garrison for his work. It's never easy to put together a bill and then to go through the whole process. I know that for a fact.
Because some of the questions regarding human rights commissions and tribunals have already been asked, I'm going to take the same approach as Mr. Cotler and not approach it from a symbolic basis but more on the consequential aspects of it.
Subparagraph 718.2(a)(i) of the Criminal Code currently contains a list of numerous aggravating factors to be considered when a crime is motivated by hate, bias, or prejudice based on “race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor”.
Do you think this section, which currently contains a non-exhaustive list of factors, can be interpreted to include crimes motivated by hate, bias, or prejudice based on gender identity?
It is my understanding that the gender expression aspect will be amended down the road; is that not correct?
So if we could focus, then, on gender identity, I'd appreciate it.
In other words, is this amendment to subparagraph 718.2(a)(i) necessary?
View Randall Garrison Profile
NDP (BC)
I guess it's the same argument that was made earlier, in that there is a value in the Criminal Code's establishing standards of behaviour and telling people what behaviour we do and do not accept in Canada. By listing gender identity in that list, we are making a declaration, just as we made for the other groups.
Now, I understand that there are some people who don't like the hate crime section of the Criminal Code, and that's a debate for a different day. But if we are going to list groups, then I believe that gender identity is equally worthy of listing as any of the other groups that are already listed. You could make the same arguments, in essence, about several of the other things in the list: “Oh, we don't really need them there, because they'll be included.”
My argument is simply that equality for transgendered Canadians means listing and declaring in the same way we have for other factors in that list.
D. Ryan Dyck
View D. Ryan Dyck Profile
D. Ryan Dyck
2012-11-20 16:52
Thank you.
I'd like to round out our opening statements from Egale Canada to directly yet briefly address a number of suggestions that have been made here today, as well as earlier on, those being the suggestions that this bill is unnecessary or that it is in fact redundant. I'd like to suggest to you today that this is largely a theoretical argument and not an argument of practical reality.
I would begin by noting that a most recent study in Ontario of 433 trans people noted that 20% had been physically or sexually assaulted and a further 34% had been verbally harassed or had been the subject of threats, in each case because they are trans. We'd also note on that issue that, to my knowledge, there has never been a case where section 718, the hate motivation sentencing provisions of the Criminal Code, have been applied to a crime against a trans person.
I have long suspected this to be the case, but in preparation for today's meeting I had three of our legal aides spend last week looking for a case. It's difficult to prove a negative, but we have been entirely unable to find a single case where the hate motivation sentencing provisions have been applied to a trans person. I find that alarming, given the horrifically high rates of violence and crimes against trans people because of their gender identity and expression. I find it unreasonable to think that no case has ever been taken forward or that trans people have simply been unsuccessful in taking those cases forward.
I would also note that in our schools, 74% of trans youth have been verbally harassed about their gender expression and 37% have been physically harassed or assaulted because of their gender identity or expression. Again, that is to note the ridiculously high rates of discrimination and harassment against trans people, particularly our youth. I'd like to very briefly suggest two reasons why this might be the case.
In regard to the first reason, we run a program at Egale Canada where we deliver hate crime prevention and awareness training to police officers across this country. As much as I have the utmost respect for our law enforcement, I believe from my experience—and in the last two years, I delivered training to approximately 2,000 police officers—that police in this country simply don't understand or know if trans people are included under the phrase “or any other similar factor”. In fact, as I stand in front of police officers, I'm not comfortable saying that trans people are, because, as I noted, I cannot find a single precedent where this has been the case.
Secondly, I would note that recently we—Dr. Barbara Perry, an international expert on hate crimes, and I—travelled across the country interviewing lesbian, gay, bisexual, and trans people on their experiences with hate crime discrimination. We did at least hour-long, if not three-hour-long, interviews as well as focus groups with people across the country.
My observation, from speaking with many of the trans people, is that in spite of the fact that they have quite often been the victim of what they perceived to have been a hate crime, many if not most trans people are not prepared to report to police, because they are either afraid of secondary victimization—that they will not be taken seriously—or because they simply do not believe that they are covered. They simply do not believe it. They have never seen a reason to believe that the phrase —“or any other similar factor” or “sex”—in the Canadian Human Rights Act includes them.
Do I have another minute?
D. Ryan Dyck
View D. Ryan Dyck Profile
D. Ryan Dyck
2012-11-20 17:07
Okay.
The direct impact there, even though much of law enforcement is not directly under federal jurisdiction, is that if gender identity and expression are explicit within the Criminal Code, there will be a direct impact on the training that police services receive and on their knowledge regarding looking for and reporting something as hate-motivated against a trans person.
David Matas
View David Matas Profile
David Matas
2012-04-26 11:44
In fact, in my opening statement I proposed a number of suggested reforms to the Criminal Code to try to make them work.
Statistics Canada just came out with a report—it was from 2010, but they just came out with it—about hate crimes. Over the period they were looking at, they identified 1,400 hate crimes that police found were substantiated by the evidence in front of them, and they identified during that period 14 convictions.
Now, there's a mismatch between the two tables, because for the reporting, they looked at hate-motivated crimes as well as hate crimes, but for the convictions, they looked only at hate crimes. Even so, there was a very low conviction rate, and there was quite a high incidence of criminality. Part of the problem, which is one of the reforms we've suggested, is that we put hate motivation into the offence rather than into just part of the sentencing.
Right now we need the consent of the attorney general. I appreciate your suggestion to introduce it. But the consent of the attorney general itself, although I think it's valuable, does present a problem. We get cases where the police, even publicly, have said that there's an offence, but the attorney general has refused to consent, because there are free speech absolutists. We get letters to that effect.
Even though the federal Attorney General only consents for the Northwest Territories and Yukon and Nunavut, I think if we had guidelines from the federal Attorney General about the use of the consent, or maybe in concert with the provincial attorneys general, that might help to get these consents working.
As I said in my opening statement, we can't just abolish the civil jurisdiction and say that it's criminal and leave it as it is, because the criminal law is almost entirely a dead letter right now.
Frank Dimant
View Frank Dimant Profile
Frank Dimant
2012-04-26 11:46
If I may add just one comment on the use of consent, I think my colleague is very kind when he attributes their motivation to ideology. I'm going to say that they're politically motivated. They make an assessment in terms of what's going to fly. They test the winds of the community, and they figure that it's best not to get involved. Therefore, they move away from giving consent on those issues.
I vividly recall the many years we had on the issue of Zundel. Every government promised, right before they were elected—right before—that they would move on it, and then they opted not to because there just wasn't enough political capital in it.
So I agree with my colleague here that perhaps there should be better guidelines for the attorneys general.
View Françoise Boivin Profile
NDP (QC)
Yes, please. This is about clause 2. Before we get to a vote, I want to reflect on a few points.
Considering that this bill simply proposes to repeal section 13 of the Canadian Human Rights Act, we were obviously very aware that any amendment attempt would be problematic without an opening on the government side. It was essentially the position of the sponsor of the bill to simply repeal section 13, unless there was an opening on the government side.
However, I would like to repeat to the government and to the Conservative members of this committee that we heard witnesses invariably saying that they were aware of the problems related to section 13. They recognized the procedural abuse problems. They were also aware of the problem of the punitive provisions. I will get back to these later on.
However, I have said and I will say it again that throwing out the baby with the bathwater is not the right answer. We have to stop thinking that the solution has to be strictly limited to the Criminal Code. I simply want to remind committee members of the burden of proof. We all have enough knowledge of the rule of law to realize that the burden of proof is not at all the same under the Criminal Code. Moreover, in the case of an offense under section 319 of the Criminal Code, the context is not the same either. And the targeted groups are not necessarily the same.
I am concerned about the fact that, unlike the Canadian Human Rights Act, the Criminal Code does not include sex as a distinguishing factor of the protected groups. So women can be targeted by hate speech as this aspect is not at all dealt with in section 319 of the Criminal Code. On the other hand, section 13 of the Canadian Human Rights Act undoubtedly protects women against hate speech.
What is being done here will cause serious problems. We are all in favor of freedom of expression. One of the witnesses we heard on Tuesday—I am not sure of her name, but I think it was Ms. Mahoney—told us that it is not a matter of freedom of expression but of hate speech. Hate speech is not at all the same as freedom of expression. I do not believe anyone around this table is in favor of freedom of hate speech. We are all against this. I do not doubt that for a second.
However, there is room for a civil remedy or a remedy based on a chart or code provided it is well conceived and is not abusive. Nothing was more convincing to me than to hear our last witnesses say that they blindly support the process chosen by the government in consenting to this private member bill but that they feel anyway this is a fait accompli. They are hoping the Criminal Code will be amended. This is a remarkable act of faith on their part.
In fact, if the government does not act, we will probably get down to it and try to find a way to strengthen section 319 of the Criminal Code. We have to do it first to deal with the problem I just mentioned that women are absolutely not protected by section 319. However, the remedy provided by section 13 will never be replaced. The fact that some people abused this remedy or engaged in multiple proceedings is not reason enough to simply abolish some extremely important human rights safeguards.
Our committee did not hear these people because, unfortunately, time and the number of witnesses were limited.
Let me say, incidentally, that it would have been nice to do with Bill C-304 what was done with Bill C-26. We are all aware of the problems and we could have taken a little more time to try to find some smart answers with the participation of the sponsor of the bill, Mr. Storseth. We will see him later on.
When the opposition moves amendments to repeal some provisions, they are usually considered to be beyond the scope of the bill. However, when a government member moves an amendment that would repeal some provisions beyond the scope of the bill, being from the same party as the sponsor, he or she can expect the amendment to be easily passed. This is unfortunate. Indeed an amendment is not automatically bad simply because it comes from the opposition.
I think this kind of work could have been done serenely and in good faith. We could have tried to avoid repealing a provision that is perhaps simply not drafted or used the way it should have been. We could have attempted to simply remove the irritants from this section. We still believe that hate speech should not be tolerated in Canada and that we should have remedies other than the Criminal Code. Indeed, in criminal law the burden of proof is quite high and the proof submitted has to be beyond a reasonable doubt, which is not easy to establish.
The Quebec Bar, of which I am a member, sent us a document that you have probably all received. I would like to quote a few excerpts of this document before concluding my comments on section 13 of the Canadian Human Rights Act. The last paragraph of the first page says this:
The Quebec Bar would like to reaffirm the reasonable and balanced nature of prohibiting hate messages and show its support for the civil penalty outlined in section 13 of the Act. While we are staunch supporters of the freedom of expression provided for in section 2(b) of the Canadian Charter of Rights and Freedoms, we believe that limits established by legislation and case law are needed to oversee the exercising of this right. Yet the scope of this freedom cannot be determined in isolation. This is why section 319 of the Criminal Code formally prohibits hate propaganda.Furthermore, the Quebec Bar would like to draw your attention to Canada’s international obligations, which must be respected and promoted. A key example is the International Covenant on Civil and Political Rights, which Canada ratified in 1976: it addresses freedom of expression in Article 19 and outlines the limits of this freedom in Article 20, condemning the advocacy of hatred and incitement to violence.
Canada is party to many other treaties. A bit further, the document says:
While, in theory, section 13 of the Act could be considered a considerable constraint upon the freedom of expression, in practice, this concern was addressed in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. The Supreme Court confirmed that section 13 is subject to a strict interpretation.
I believe it would have been possible to amend this bill. Without completely repealing section 13, we could have prevented ill-intentioned people from abusing it in order to restrict freedom of expression and launch innumerable proceedings against others. This bill will likely be passed, and this is regrettable. It is also unfortunate that the only remedy left will be the Criminal Code.
I hope the government and the parliamentary secretary to the Minister of Justice will take good note of all the recommendations submitted by the witnesses who appeared before the committee. They stated that if the chosen avenue is the Criminal Code, significant amendments would be required to ensure that reasonable standards are being met. I do not think our society wants the definition of freedom of expression to include hate speech, particularly if we consider the electronic tools at our disposal and most importantly, the World Wide Web where this kind of speech can be found.
As our last witnesses said, what is happening in Europe is coming to the shores of Canada. After passage of Bill C-304, our country will be considerably more vulnerable to hate speech.
Majed El Shafie
View Majed El Shafie Profile
Majed El Shafie
2011-11-22 13:34
Definitely the majority will not feel safe, and will feel that there is discrimination around them. Now, there are degrees of persecution and discrimination. It could be somebody insulting you in the street just because you have a cross, or it could be getting fired from your work, or it could be a physical or emotional attack, or it could even be to the degree of imprisonment.
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