Justice Committee on May 28th, 2019

[Bradley Galloway]

Sure. I'll do that right away.

I think that implementing coherent, standardized, broad-based digital literacy campaigns—addressing an array of issues—in the education sector will help students and broader society manage the obviously very complicated issues that we're seeing today.

Again, thank you very much for having me here today. I look forward to any questions you may have.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

Now we'll move to the South Asian Legal Clinic of Ontario.

[Shalini Konanur, Executive Director and Lawyer, South Asian Legal Clinic of Ontario]

Thank you.

Thank you to the committee for having us here. I'm here with my colleague Sukhpreet Sangha, and we'll be speaking interchangeably today.

Very quickly, the South Asian Legal Clinic of Ontario is a not-for-profit legal aid clinic that works with low-income South Asians across the province. We do poverty law, which includes a large volume of immigration, human rights, employment law, housing law and income security law.

From that casework we also look at the trends in what we hear from our clients and pick up on larger advocacy pieces around Ontario and around the country that are impacting the work we see on the ground, so our comments are directly related to our front-line work.

Approximately 30% of SALCO's legal casework raises issues of systemic racism and discrimination. We've worked on cases on access to service, housing, employment, policing, immigration, and we've worked within the larger justice system framework on these issues.

Our law reform work has addressed the growing inequities faced by racialized communities, inequities that intersect with multiple identities such as gender, faith, socio-economic status. Our work has addressed how those things intertwine in that world of online hate speech.

We've had a chance to speak on these issues at the United Nations. We are part of Ontario's anti-racism directorate consultation committee and worked on the legislation to embed that in Ontario law. We sit on the Toronto Police Service's anti-racism advisory panel. We've worked with the federal government on a national anti-racism strategy. We've debuted in Quebec and on test cases at the Supreme Court on the ability to wear the niqab, and we are currently sitting on a coalition of community leaders in Ontario that's looking specifically at dealing with hate crime and the rise of white supremacy.

No doubt you've heard from everybody today that obviously in recent years, we've seen a definite rise in hate speech in the public discourse. There's no doubt that social media platforms and the Internet have played a significant role in spreading that hate speech.

Globally and domestically, we know that online hate has been a catalyst for violence against Muslim, Jewish, black and indigenous communities.

I want to say quickly that a lot of the discourse, a lot of the discussion, now is around Islamophobia and anti-Semitism, but the data shows that anti-black hatred is prolific in Canada, as is anti-indigenous hatred. I believe that those two communities go largely unreported, so it's important, I think, for this committee to take notice of those particular historical communities and the hatred they continue to face to this day.

Last week I met with a Muslim client who came to our office begging us to help get some of their remaining family members out of Sri Lanka. Why? It was because the others had been killed in an attack on the Muslim community in Sri Lanka, which was incited by online hate. The connection there is real. We have people here who are connected to people globally and we see the impact of online hate.

To be frank, I want to tell this committee that I have personally received a significant amount of hate email, social media hatred threatening me, and in one case threatening my family and my children and threatening our organization.

Yesterday I spoke to a Sikh colleague who had received an open message on the website of his organization calling him a “towel head” and telling him that his community should be deported and that he deserves to die.

I don't bring these things to the committee to be shocking, but to tell you that this is what we feel and see. The audacity and frequency with which people now spew hate online shows us that we have failed to control online hate. There is truly little in the way of real and accessible mechanisms in Canada to hold people accountable.

I'm going to turn it over to Sukhpreet.

[Sukhpreet Sangha]

I'll be speaking about combatting online hate, especially through the lens of the criminal law.

Of course, we all understand that we must be expedient, bold and effective in the way in which Canada responds to the growth of online hate.

To that end, regarding the criminal law, the committee is aware and it has been mentioned earlier that the Criminal Code currently contains two main provisions that can be used to charge persons accused of committing online hate crimes: sections 318 and 319. While section 318 prohibits advocating genocide, section 319 more broadly prohibits public incitement of hatred and the wilful promotion of hatred and is thus the likelier charging section in cases of online hate crime. The use of section 318 is further limited by the fact that proceedings under it may not be instituted without the consent of the Attorney General.

Subsection 319(2) creates a hybrid offence that criminalizes:

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group

The maximum punishment available, if proceeding by indictment, is two years of imprisonment.

However, it is troubling that the Attorney General's consent must also be obtained to institute proceedings under that section. As the popularity of using the Internet as a forum for spreading hate only continues to increase, Parliament should reconsider whether this requirement for the Attorney General's consent places undue limits on the prosecution of online hate crimes. Requiring this consent to proceed with online hate crime prosecutions creates an unnecessary additional barrier to these charges being pursued by legal authorities.

Alternatively, individuals committing certain types of online hate crimes can also be charged with more generic Criminal Code offences, as is sometimes done, under sections regarding uttering threats and criminal harassment, and the hate motivation of the crime can be considered an aggravating circumstance on sentencing under subparagraph 718.2(a)(i).

Another concern with the current usage of the code to address online hate crime is the often fraught relations between some members of racialized communities and the police. lt is more broadly acknowledged now that systemic racism is a significant problem within our criminal justice system, which creates an access-to-justice barrier for members of those same communities when they are subjected to hate crimes, when their main avenue for dealing with that is the police. lt can be reasonably difficult for racialized persons who have experienced being targeted by police through programs such as carding to then have to seek assistance regarding hate crimes from members of that same police force.

Further, the historical and ongoing overreliance of the criminal justice system on punishment through penalties such as imprisonment and fines also produces a deficiency when dealing with hate crimes, both online and off. Punitive sanctions, such as those traditionally meted out by the criminal justice system, do little to confront or change the attitudes and beliefs that motivate hate crimes. As such, a more meaningful remedy could lie in community-based programs that seek to address the motivators and the thinking that underlie hate crimes, in a genuine attempt at anti-racism and anti-oppression education.

Further, problems with prosecuting hate crimes through the criminal justice system are revealed by the fact that police solved just 28% of hate crime incidents in 2017, as shown by new Statistics Canada analysis, which I'm sure most members have seen. By comparison, among all Criminal Code violations, excluding those in traffic, 40% were solved by police in that same year, 2017. Hence, even when the hurdle of reporting to police is cleared by victims of hate crime, the chances of success are 12% lower than with other types of offences.

We'll make two recommendations regarding the criminal law.

First, as the popularity of using the Internet as a forum for spreading hate only continues to increase, Parliament should reconsider whether codifying requirements for the Attorney General's consent places undue limits on the prosecution of online hate crimes. Requiring this consent to proceed with online hate crime prosecutions creates an unnecessary additional barrier to these charges being pursued by legal authorities. I will note that this requirement for consent is also in section 320.1, which was raised earlier at this committee today.

The second recommendation is that the government should look at creating civil and community-based mechanisms to address online hate that do not engage the criminal justice system. In our position, the criminal law is not the most effective mechanism to address online hate. A non-criminal administrative mechanism could provide a more accessible alternative. Systemic racism within the criminal justice system makes it disproportionately ineffective for racialized communities.

I'll pass it back.

[The Chair, Liberal, Anthony Housefather]

I'll just note that we're at eight minutes and 27 seconds, so please wrap it up.

[Shalini Konanur]

Okay. I'm going to go really quickly.

I won't repeat what everyone has said on section 13 of the Canadian Human Rights Act. What I will say is that I worked using that section, and it was effective to combat online hate. The section, as it's written, does include a recognition that hate includes computer and online communication.

We call for a re-enactment of that section. We can, in this committee, study what the issues were, procedurally, and why it was ineffective. There's a lot of nitty-gritty. We can take best practices from what we learned about things that didn't work and put in what did. I had, I think, at least five successful section 13 cases; none went to hearing. Just the use of section 13 resolved those issues.

Lastly, what we want to speak about most is that we cannot do any of this work piecemeal, such as by changing a section in the Criminal Code or adding a section. What we really need is some sort of national anti-hate strategy. We need a strategy that talks about online hate, social media platforms, the Internet and how they collect data, and makes it mandatory.

A lot of data has been quoted here, but the reality is that the data we have does not even touch on the reality of online hate. Most people don't report it; most people don't go to the police, as my colleague just said, so we don't know the real picture in Canada. We continue to fail repeatedly on how we collect data on this issue. We continue not to push social media outlets to collect data.

We also need a strategy—and someone said it before—around education. A national strategy, directorate, secretariat or whatever you want to call it ensures a commitment and a continuity of this work, regardless of what happens, and that we're looking at this within the larger picture. You see the work on online hate and education; you see the bigger picture. We would call on this committee to look at doing that.

The other thing I want to say quickly is that I would urge this committee not to come back with a recommendation that we study this more. As was the case with forced marriage, we had people from the U.K. come in to say, “You don't need to study it. You have enough anecdotal information in front of you that you should act now.” I feel very much the same way on this issue.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. That is all very helpful.

Folks, as you know, we're running a little behind. May I suggest we do four-minute rounds? Is that okay with everyone?

We'll start with Mr. Barrett.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Thanks, Mr. Chair.

Thank you very much to all of the witnesses for coming today and sharing your perspectives, your experiences and your advice to the committee.

I'm very interested, Ms. Sangha, in the idea of education over enforcement and having conversations in the public square.

You referenced the clearance rate for police forces and online hate crimes. My colleague, Mr. MacKenzie, served as a police chief, and reminded me that they clear 100% of the drunk-driving cases that get put in front of them. We could run a R.I.D.E. program every day, and, unfortunately, we're still going to be catching impaired drivers.

I very much like the idea of education. When we had witnesses here a few weeks ago, I asked a few of them questions about having the conversation in the public square, and bringing groups together, so we're not dealing with this in silos within communities. We all share a common purpose in this, and that is to end hate. When hate migrates online, it seems to proliferate more quickly, but if we address it right at the root cause....

Do you have any examples of where this has been done—where different faith or ethnic groups have been brought together on a large scale, with some result, or perhaps your colleague does?

[Shalini Konanur]

Do you want to take it, or do you want me to?

Okay, you go ahead.

[Sukhpreet Sangha]

I think Mr. Galloway referenced one: Life After Hate. I would point to other similar groups that seem to have been very effective, in terms of having people on the ground who were in hate groups and were themselves converted away from that impulse. That's the kind of community-based education I'm speaking to, because it involves people with lived experience. Those people have a way of relating to people who might be pursuing hate, outwardly on the Internet or elsewhere, and advocating for hate to be acted upon.

Those groups are the best examples of tackling this issue. I want to see more of those.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Mr. Galloway, picking up on that, who are the stakeholders who are at the table or in the room when these groups meet?

[Bradley Galloway]

What we're trying to build, at least with the OPV in Alberta, is different partnerships with different groups that are doing work in this area. In British Columbia and Alberta, I've definitely come across people who are trying to suggest K-to-12 digital literacy programming—federally speaking—across Canada. It's about our willingness to teach young people about the content they're viewing at the initial stages, before it gets to much later when we're adults and we're viewing all of this content, right?

I think we lack digital literacy in Canada. I think that's one of the biggest problems. We've been trying to work as much as we can to do community engagement projects and to go into school districts throughout....

I've been doing it in B.C. for the better part of three years now and trying to work with Life After Hate to go out and speak with community organizations and others who have a stake in this discussion.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Go ahead, Ms. Sangha.

[Sukhpreet Sangha]

Something that could be very important is to introduce earlier in the public education system, and in other education systems, courses around world religions, not as electives but more as a mandatory inclusion. I can speak specifically to the fact that Sikhism is not really addressed in public education. People don't know that members of the Sikh faith are a whole different group. That's not to say that they therefore should redirect towards who they're actually meaning to target, of course—they shouldn't be targeting anyone—but ignorance promotes further hate and is a real problem.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

How much time do I have?

[The Chair, Liberal, Anthony Housefather]

You're almost done.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Very quickly, I would just say that I think you've made my point very clearly. I think that involving targeted groups and bringing them all to the table, whether they are representatives from all religions or from any of the targeted groups such as LGBTQ2+ organizations, women's groups or any racialized groups, would very much serve us well in the form of education over enforcement.

Thank you very much for your answers.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Ehsassi is next.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair.

I'll start with you, Ms. Konanur. Thank you so much for the amazing work that SALCO does in my riding of Willowdale.

You've mentioned that we've failed to control online hate. You also mentioned the unfortunate incident when you received hate emails. Could you explain to us how you dealt with it and whether that was an effective means? I know that you're there helping other people, so I can vouch as to how resourceful you are. How effective was reporting it?

[Shalini Konanur]

It's a great question, because it's a question about accessibility. I dealt with it as a lawyer who is the ED of the South Asian Legal Clinic and has a whole heap of privilege behind me, so I can blast back, right? I can call the police and they'll take my call. I can do a number of things that I know my clients could never do.

I was able to counter it with my own commentary. With some of the comments, though, you just leave. We've become emotionally fatigued by it, to the point that you have to put your hands up and say, “I'm not going to engage”, because the engagement just leads to a snowball effect. The truth is that the emotional psyche of people who do this work with people from different communities—all of us—is harmed. I see it with my kids in particular.

The reality is that what we wanted to talk to you about today is that we don't have accessible solutions. That's why, when people talk over and over about civil remedies, administrative remedies, services that people can access for free to combat this and moving things out of criminalization, we are talking really about accessibility and access to justice. We want to look at those back-end mechanisms for people to combat that individual hate, but we also want you to think about the front-end piece, right? Why is it okay? Just as quickly as we went in this direction of online hate being okay, we can go in the direction of it not being okay. That takes our will. It takes our will to do that, and it takes our will to stand up, but it is really difficult.

One thing that I didn't get to say was that in Ontario we had an incredible ruling two weeks ago against two anti-Muslim advocates who went after the founder of Paramount Fine Foods. He got an award of $2.5 million in civil court. When I think about that case, I think, “If the clients I'd seen had the resources to access civil remedies, imagine the message we could send around civil liability for these cases.” I think about how we do have test case funding now, and we do have the court challenges program. Is there an opportunity at the federal level to expand those programs to have this kind of work done?

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you very much for that.

Mr. Maharaj, you mentioned transparency reports and requiring social media organizations to file such reports. I've never heard of such things. Could you elaborate on that and tell us what such transparency reports would contain?

[Akaash Maharaj]

Different jurisdictions have different requirements, but probably the best known is the European Union's Code of Conduct on countering illegal hate speech online. It's modest in its scope because it is transnational, but it requires social media organizations to report how many requests they have received, how many reports they have received of alleged hate speech, how many of them were analyzed and addressed within the first 24 hours, how many were addressed within 48 hours, and what percentage of those posts were ultimately taken down.

I think that is an excellent initiative. One of the metrics of its success is that over time, the proportion of reports that have been investigated by, for example, Facebook, within the first 24 hours has doubled over just four or five years. It shows that public exposure to their record creates a tremendous incentive for social media organizations to increase their compliance with their own rules, as well as for national anti-hate legislation.

I would say, though, that if this is a path Parliament wishes to go down in Canada, more would be better. That means more transparency, more detailed information about the reports that social media firms receive and how they deal with them. The greatest weakness of the EU's approach is that it only requires social media to turn its mind to these reports quickly. It doesn't require them to turn their minds to these reports effectively. In other words, if they address 50% of the reports in the first 24 hours but they get all of their analyses wrong, they've still exceeded the European benchmark. An additional step of random sampling of those reports by an independent third party to assess not just how quickly they're dealing with them but how effectively, I think, would be an excellent idea.

There are privacy risks—

[The Chair, Liberal, Anthony Housefather]

I'm sorry, but we're well over time right now. We are going to move to Ms. Ramsey.

[Tracey Ramsey, NDP, Essex, ON]

Thank you so much. There are so many great topics. I think we could dive into the education piece—it's critical—and the work, Mr. Galloway, that you've been doing.

You've been talking about deradicalization and the relationship of online hate to offline and how it becomes a real-world hate that impacts people's safety.

I want to talk about something that Ms. Sangha brought up. First of all, I thank you for your call to action. I absolutely echo that. We need to have something strong coming out of this committee that's not just aspirational but can actually make an impact on the ground.

You're talking about the fact that many people in our country have a relationship with the police that is not good. They don't go to the police because they mistrust them and they mistrust the way they're being treated. This reporting online, I think, is really critical in the sense that people don't feel they have to go and be challenged or experience that racism or other things they currently experience with the police. It's very challenging.

I want to ask Ms. Omer first, then Ms. Konanur, and finally Ms. Sangha: How should this reporting process be structured so that everyone can feel comfortable coming forward? Who should be handling it? What are your thoughts on that?

[Dahabo Ahmed Omer]

I am a part of this coalition called the Justice for Abdirahman Coalition. We've been doing work for almost three years now, and a lot of that work has been towards creating more transparency and accountability with our police services.

One of the things we found with our communities is that you can't have someone who is within the police service as the person that marginalized and vulnerable communities are dealing with.

A lot of times one of the recommendations that we've made as a group is to create a civilian group whose composition would be members of the community, members who have been impacted by police interactions negatively, individuals who have done research in this field, individuals who are young black men who have faced discrimination and racial profiling with the police service. This council or this entity would really have a neutral and objective role and responsibility. It would allow the communities that are affected by these hate crimes to feel more comfortable in coming up to them. These would be advocates, such as myself, individuals you can relate to, you can connect with, who you know will not use the information you've given them against you.

A lot of times members of our community feel as though there will be a reprisal. They feel as though the police service has access to their information. They know their address and their licence plate numbers and things like this, so there is a fear in going to police services. A council or a committee made up of members of the community—grassroots organizations, really—would be the stakeholders and would be the ones reaching out to communities to say, “I can be your advocate. I can be your liaison, and you can trust me.” That neutral party would be the hand that would hold the community and the police and relay that information.

Inadvertently what it does is create that trust between the community and the police if they see that this body, as a neutral body, is able to play that advocacy role and balance role. I think that would start to create some of that trust between the police and the community that's not currently there.