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.