Evidence of meeting #47 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was mischief.
A video is available from Parliament.
Liberal
The Chair Liberal Anthony Housefather
Welcome, ladies and gentlemen. We're going to call to order this meeting of the Standing Committee on Justice and Human Rights as we continue our study of Bill C-305, an act to amend the Criminal Code (mischief).
I would like to take this opportunity to welcome Mr. Arnold to our committee for the first time—welcome, Mr. Arnold—and Ms. Sgro for the first time as well. Welcome, Ms. Sgro.
Liberal
The Chair Liberal Anthony Housefather
It's a pleasure having you both here.
It's also a pleasure having our witnesses today. Representing B'nai Brith Canada, we have Michael Mostyn, the chief executive officer.
Welcome, Mr. Mostyn.
From the Centre for Israel and Jewish Affairs, we have Richard Marceau, the general counsel and senior political advisor.
Mr. Marceau, it's a pleasure to have you.
As we agreed at the beginning, we're going to start with Mr. Mostyn.
Mr. Mostyn, the floor is yours.
Michael Mostyn Chief Executive Officer, B'nai Brith Canada
Thank you, Mr. Chair.
Established in
1875, B'nai Brith is Canada's most senior membership-based Jewish organization. Through its league for human rights, it is the premier advocate for Canada's grassroots Jewish community.
B'nai Brith operates a hotline to assist the victims of anti-Semitism and racism on a daily basis.
We are here today to discuss Bill C-305, whose aim is to close a gap in the Criminal Code by extending the legal protection from mischief afforded to houses of worship to a wide variety of other property critical to our community lives.
It is very hard to come by proper statistics in this matter, and the case law regarding how hate-motivated acts of mischief against religious sites are prosecuted is confusing. I will further elaborate on that shortly.
There is no question that this is a very well-intentioned bill, and it is indeed very heartening to see all-party support against the hate-fuelled bigotry that has been receiving more media attention over the last number of months. In fact, the backgrounds of the many diverse groups that have spoken in favour of this bill further reflects the multicultural nature of our great country.
Similarly, the Jewish community has always sought strong laws to protect all Canadians from all identifiable backgrounds from the purveyors of hatred. Although it may sound hard to believe, given our relatively small numbers in Canada, the Jewish community remains the most targeted community group of hate crimes in this country. StatsCan reported in 2013 that there were 181 hate-motivated crimes targeting the Jewish religion reported by police, or an estimated rate of 54.9 police-reported hate crimes per 100,000. By comparison, police reported 65 crimes motivated by hatred against the Muslim religion in 2013, representing an estimated rate of 6.2 hate crimes per 100,000.
Assuming that the Canadian Jewish population in 2013 was 350,000, and the Canadian Muslim population was approximately one million, taking the respective sizes of the two communities into account, Canadian Jews were approximately eight times more likely than Canadian Muslims to be the victims of a hate crime in that year.
B'nai Brith's annual audit of anti-Semitic incidents shows that anti-Semitism in Canada has remained relatively constant since 2011. With no active conflict occurring in Israel in 2015, 1,277 incidents were reported that year. Vandalism declined to a 15-year low in that year—we had 136 incidents reported—considerably off the five-year average.
Just yesterday in Toronto it was reported that units in a condo building, home to a large number of Jewish people, were the victims of anti-Semitism. Yellow Post-It Notes were slapped on some of their doors. Certain notes had pictures of Nazi swastikas, while others read, “No Jews”. Some of the residents also had their mezuzahs stolen. A mezuzah is affixed to the doorpost of every Jewish home and holds religious prayers from the Torah inside the case.
However, even with the amendments proposed by Bill C-305, the proposed subsection would not apply to this particular hate crime of mischief because a private condominium is not within the scope of the properties being considered for amendment. Jewish individuals are perhaps somewhat unique in this way, as the mezuzah is a year-round religious act of self-identification at their home. However, a strong argument can be made that a hate crime at one's home is even more traumatic to the victim than one in a communal setting.
Recently, B'nai Brith tried unsuccessfully to lay charges in another mischievous act of bias against our community. Canadians for Justice and Peace in the Middle East, or CJPME, had placed stickers promoting the boycott of Israel on items for sale in stores across Canada, a clear case of bias based on national origin. There have been to date no mischief charges laid, despite CJPME's actually filming themselves doing it, which is why we complained to police, since there was evidence in the video of the perpetrator. We wrote to the federal government in this matter and we are still awaiting an answer.
The police advised us that their hands were tied unless the store owners themselves were to complain, but that is not correct. Even though the store owner is the real victim in these instances, the entire Jewish community of Canada was victimized by these acts. Sadly, our community has been ignored in this case.
It is not enough for us to want justice to be done. Justice must be done, and justice must ultimately be seen to be done by all Canadians to retain high levels of societal support for our criminal justice system.
Generally speaking in Canada, the Criminal Code contains a number of different and long-standing offences to deal with the general topic of hate crime. It is a hate crime in Canada if an act is committed to intimidate, harm, or terrify not only a person, but an entire group of people to which the victim belongs. The act has to be motivated by hate, and can involve intimidation, harassment, physical force, or threat of physical force.
In February of 2016 B'nai Brith exposed an editorial in Al Forqan, an Arabic-language newspaper in Windsor, that described attacks against civilians in Israel as a sacred duty of jihad. No charges were laid.
B'nai Brith has spoken out against Alfred Schaefer for online videos in which he glorifies Adolf Hitler, describes Jewish people as parasites, and accuses them of conspiring to eliminate the European race. No charges were laid in Canada. Authorities in Germany recently laid charges against Schaefer after B'nai Brith alerted German officials. There are many other examples.
The mischief section of the Criminal Code covers hate-motivated mischief to religious property in subsection 430(4.1) by defining specific property as religious, and provides for a harsher sentence than mischief involving other property.
The proposed amendments add gender identity or sexual orientation to the motivation for bias in subsection 430(4.1). The proposed new subsection 430(4.101) also proposes adding further properties to the definition in the subsection, so if a similar act of hate is committed against any building primarily used as a university or college, day care centre, community centre, or a seniors' residence, the punishment provisions of section 430 would also apply.
B'nai Brith is one of the premier providers of affordable housing for seniors in Canada, so better than most, we certainly appreciate the thought behind this bill on behalf of our more than 1,000 residents. But these questions remain: what will the potential impact be in the real world from these proposed amendments, and how will it keep people more safe from targeted acts of hate?
Some of the confusion in the application of the law is likely the result of section 718.2 of the Criminal Code, which encourages judges to consider whether the crime was motivated by hate of the victim's race, national or ethnic origin, language, colour, religion, etc. This section can be used to increase the sentencing provisions of general mischief.
Oddly, after an exhaustive search, we were able to find only a single case on Westlaw of anyone being convicted or sentenced under subsection 430(4.1), the existing religious property provision. In the case of Re Zehairi, the accused was convicted of uttering death threats and spray painting a number of churches under subsection 430(4.1). His trial was unreported, and he was found not guilty by reason of mental disorder.
There are also very few reported cases of mischief to property including aggravated factors as described in section 718.2. Some of those cases would not have access to the amended provision being considered by this committee, such as the case of R v. Mackenzie, in which the accused pled guilty to willful promotion of hatred and mischief after he spray-painted “Kill Muslims” and “Kill Syrians” in various areas of Calgary with large Muslim and Syrian populations. Paragraph 718.2(a)(1) was mentioned as an aggravating factor for the mischief offences in that case.
However, the confusion in terms of what charges are laid is illustrated well in the case of R v. Coleman, where the accused pled guilty to a variety of offences that took place in 2010, including spray-painting threatening messages on a mosque. He was convicted and sentenced for mischief with hate as an aggravating factor, but there was no charge under subsection 430(4.1) even though it clearly applied to the facts of that case.
Why aren't there more prosecutions of mischief to religious property on the record? There might be no instances of mischief to religious property in Canada. That would be wonderful, but I think we can all acknowledge this is not true. Perhaps local police forces and crown attorneys prosecuted under the general mischief section and used sentencing provisions as an aggravating factor because they believe perhaps it might be easier to obtain a conviction by not dealing with intent as an element of the offence.
It is very likely that there were guilty pleas made by accused, but we were unable to see this data because it is not recorded by any of the case law recording companies. Perhaps the number of incidents was low or accused persons were not caught or prosecuted. Perhaps police did not lay charges or evidence of hate bias was not put forward.
Another issue with the wording of this amendment is this. What does it mean to say that the impugned property has to be “primarily used for” in the various subsections? There are public schools that are used after hours by religious groups that rent out public space for, say, Sunday school programming. The public school is not primarily used for religious instruction, but certainly, if the amendments are to protect religious individuals and groups from hate, then why would it matter that a public school is not being primarily used by those individuals?
There are serious concerns about anti-Semitism and other forms of systemic racism in Canada. Canadians want to see charges and successful prosecutions when hate is a motivating bias in criminal acts towards identifiable minority groups. If this bill does not in actual fact increase the scope of the law to protect targeted communities from hate because subsection 430(4.1) as it currently exists is not being regularly used, then we must ask ourselves why we are considering these amendments. There may be very good reasons, and these amendments may, indeed, fill a true gap in the law, but it is not obvious from an analysis of the existing case law.
I do have some recommendations, but perhaps if there are questions later, I can get to those.
Thank you.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much, Mr. Mostyn.
Now we'll go over to Monsieur Marceau.
Richard Marceau General Counsel and Senior Political Advisor, Centre for Israel and Jewish Affairs
Thank you very much, Mr. Chair.
I'd like to thank the committee members for inviting me. I'd also like to thank Chandra Arya, the member who brought forward Bill C-305, as well as all the members who supported it at second reading.
This legislation has been on the Jewish community's agenda for quite some time. Understandably, then, I would like to set the backdrop for Bill C-305. Though in no way do I want to take any credit away from Mr. Arya for sponsoring the bill. Quite the contrary.
Back when I was in your shoes and serving as my party's justice critic, the Jewish community approached me to have protective safeguards already available to houses and places of worship and cemeteries extended to community centres and schools belonging to the community.
They convinced me, so I put together a bill, which I was about to introduce when the 2006 election was called. I was defeated in the election, but Carole Freeman, a Bloc Québécois MP took up the charge and introduced the bill. After passing at second reading, Bill C-384 was referred to this committee. The 2008 election was then called, and Ms. Freeman lost her seat as well.
Between 2008 and 2011, a Liberal MP by the name of Marlene Jennings brought the bill back, this time as Bill C-451. It garnered widespread support from all parties, but Marlene, too, lost her seat in 2011.
During the 41st Parliament, Marc Garneau, now Minister of Transport, reincarnated the bill as Bill C-510, but it was too low on the priority list to ever see the light of day.
It's been 10 years since the bill first came about, and we are here today to study it. Finally, there is light at the end of the tunnel.
The objective of the bill is fairly straightforward. It is to extend the protection already given to houses of worship and cemeteries to other buildings and structures used by communities at risk.
Our community, the Jewish community, has often been the target of vandalism. As Michael mentioned, Jewish Canadians are victimized by hate-motivated crime at a higher rate than any other identifiable group. StatsCan data shows that roughly three-quarters of these crimes fall under the legal category of mischief—broadly speaking the vandalism or destruction of property.
Vandalism of community centres and schools involves more than attacks on buildings. It reverberates throughout a community and throughout a city. It touches every member of a community, whether that person goes frequently to that place or not. That is why it must be seriously punished.
The bill extends the protection by defining the word “property” for the purposes of subsection 4.1 as being:
a building or structure, or part of a building or structure, that is primarily used for religious worship...
that is primarily used as an educational institution...
that is primarily used for administrative, social, cultural or sports activities or events—including a town hall, community centre, playground or arena—, or...
that is primarily used as a residence for seniors
I understand there are concerns about the bill's being too broad, more specifically about the groups afforded protection in subsection 4.1 and about which buildings would be covered. Let me tackle one at a time.
The fact is, the subsection is about mischief relating to religious property. I have heard concerns that extending it to cover buildings associated, for example, with the LGBTQ+ community would denature the subsection. We at CIJA have no problem extending protections to LGBTQ+ community buildings. Our longstanding advocacy in this area, including our deep involvement in support of C-16—previously C-279—brought forward by Mr. Randall Garrison, speaks for itself.
I don't think the principle of inclusion with regard to the LGBTQ+ community is at issue. The question may be whether these protections should be included in the same subsection, thus changing its nature, or whether they should be extended to LGBTQ+ community buildings in a different subsection. To the Jewish community, the how/which subsection matters less than the what, namely that these institutions be covered and better protected.
As for the issue of the bill's being too broad regarding which buildings would fall under this subsection, I disagree. What about, for example, a synagogue, a mosque, or a temple that rents space in a mall? Shouldn't those be protected? How about the social services agency of a community that rents space in an office building? Today the Jewish social services agencies from across Canada are on the Hill, meeting MPs and ministers to discuss the issues around disability. They would tell you, and rightly so, that they would like and need their offices to be covered.
At a time when Sayyed al-Ghitaoui, an imam at Montreal's Al Andalous Islamic Center, who called for the destruction of the cursed Jews, imploring Allah to kill them one by one, and to make their children orphans and their women widows, has the support of his mosque; at a time when Igor Sadikov, a member of McGill University's student society sent out a tweet that read, “punch a [Z]ionist today”; at a time when—and this happened on February 6, 2017—someone hacked the attendance sheet of a children's swim team in Côte Saint-Luc, hosted by Google Docs, and filled it with murderous threats against the Jewish community, as well as several references to Hezbollah, a Lebanese terrorist organization, banned in Canada, that seeks the destruction of Israel;
At a time when six Muslim worshippers were so brutally gunned down while engaged in prayer, when a wave of hate vandalism hit many religious and community institutions in Ottawa, including the community centre where my sons work and the synagogue I am a member of, it is time to send a strong signal that anti-Jewish, anti-Christian, anti-Muslim, anti-Sikh bigotry, and all other forms of hatred have no place in Canada, that schools and community centres are as central to minorities' lives as houses of worship or cemeteries, and that mischief against those buildings should be seriously punished.
I encourage all members of Parliament to continue to support Bill C-305 and to pass it without delay.
Thank you very much.
Liberal
The Chair Liberal Anthony Housefather
Thank you you very much, Mr. Marceau.
Now we're going to move to questions. We're going to Mr. Cooper.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Chair.
Thank you, Mr. Mostyn and Mr. Marceau, for your testimony. I certainly agree with your presentations, that this bill is certainly a well-intentioned piece of legislation. I believe it closes a gap in the Criminal Code.
Both of you alluded to the fact that in recent years we have seen a string of incidents in which people have been targeted in not only their homes, their synagogues, and mosques, but also their schools and their community centres. We saw the fire bombing of the United Talmud Torah school in Montreal. We saw a few month ago in Ottawa a string of incidents that included two synagogues, as well as a mosque, but these incidents also included a Jewish teaching centre and the Ottawa Muslim Association.
The offences were motivated by the same hate. They were an attack on entire communities to perpetuate fear. The nature of the crimes that were committed at each of those sites was similar. Yet, depending on where certain acts of vandalism occurred, they may be subject to the general section or the specific section of the Criminal Code, with very different penalties—one up to a 10-year sentence, the other for up to two years. I certainly agree that there is an inconsistency and that this legislation would help close that inconsistency.
In the wording of proposed subsection 430(4.101), if you look at paragraph (a), it refers to a place of “religious worship—including a church, mosque, synagogue ”, and so on. But after that, if you look at paragraphs (b), (c), and (d), there is no mention of religion, so it's not necessarily limited to a religious education facility or a religious administrative building or community hall or a Muslim or Jewish seniors' residence, for example.
Do you have any thoughts on these three paragraphs and how they would expand coverage well beyond the existing purpose of the subsection related to religious property?
General Counsel and Senior Political Advisor, Centre for Israel and Jewish Affairs
Thank you, Mr. Cooper, for your question.
Many of the Jewish communities and institutions are not religious by nature. Usually, a Jewish community centre is not a place of worship. Sometimes some spaces are rented by a congregation for a little while, or for bigger events—for example, during Jewish high holidays. If you take the Soloway JCC in Ottawa, for example, some synagogues would rent spaces. Usually, it's not associated with the Jewish religion, but it's very associated with the Jewish community. That's where some Jewish studies happen. There are some Jewish sports and sports teams.
The definition of property here would apply to the JCC, even though there's no religious institution and there are no religious activities per se. That's where I think the gap you identified at the beginning of your question shows, and why it is important to fill that gap.
The same thing goes for a cultural or sports activity. The Segal Centre in Montreal has a Jewish theatre company. It's very identifiable as being Jewish. Under the current subsection 4.1, it would not be covered, even though the motivation for attacking the Segal Centre in Montreal would be anti-Jewish.
I think that wording covers those kinds of places. An attack on a Jewish community centre reverberates as much as an attack on the JCC or on a Jewish cultural institution.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
I certainly support the bill.
It's really just a matter of looking at the specific wording in the bill to see whether or not any amendments are required. Do either of you have any suggestions as far as amendments are concerned, or are you satisfied with the bill in its present form?
Chief Executive Officer, B'nai Brith Canada
I'll speak to that for a moment.
In the proposed paragraphs 430(4.101)(a) to 4.101(d), the term “primarily used” is used for all of these different sorts of properties that are stated in the bill.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Sorry, what part are you referring to?
Oh, it's (a) to (d). Sorry.
February 21st, 2017 / 3:55 p.m.
Chief Executive Officer, B'nai Brith Canada
If you are looking at (a) to (d) in the amendments, the words “primarily used for” or “primarily used as” appear before each of these areas. It refers to whether a building is primarily used for this, or primarily used for that.
I guess the question that the committee should consider is, why are those specific terms being used? As I mentioned earlier in my testimony, you might have any number of institutions that you use part time. Richard mentioned that it could be in a Jewish community centre. It could be any sort of a property that is used part time by a religious school, Sunday school, or other things.
An alternative description could be “substantially used for” or “regularly used for” because those properties maybe primarily used for other purposes. However, you still want to protect those buildings so that you have fairness in the way that the law is being applied.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you for that.
Mr. Marceau, do you have any suggestions?
General Counsel and Senior Political Advisor, Centre for Israel and Jewish Affairs
No. I actually like Michael's idea. It's one that I would seriously consider.
Otherwise, I am fine with the bill as is, with the caveat as I mentioned earlier: the LGBTQ buildings or community centres. Should they be in the same subsection with a subtitle of religious property, or should they be in another subsection? It's of no consequence to us. We believe that, as a community at risk, it should be protected.
I would mention one other thing. If we assume that Bill C-16 will be passed by the Senate this session, we should make sure that the wording of Bill C-305—which was passed by the House and is now being considered by the other place—is consistent with Bill C-16.
Liberal
Chris Bittle Liberal St. Catharines, ON
Thank you so much, Mr. Chair.
I would like to thank you both for coming today. It's quite poignant that you're here testifying to this bill, especially in light of the incidents that you mentioned, including the anti-Semitism on display in North York.
Mr. Mostyn, you mentioned that you had recommendations. Was it just that one point, or do you have further recommendations that you'd like to share with the committee?
Chief Executive Officer, B'nai Brith Canada
Thank you very much.
I do have some other recommendations. The committee should be listening to police and attorneys general, consulting with them as to why a history of case law is not on the public record with respect to the original section here. As I mentioned, in sentencing, item 718.2(a)(i) can increase the sentencing up to 10 years for general mischief. Are there guilty pleas that are taking place? It's hard to understand, I guess, from a civil society perspective exactly why police may or may not be issuing charges.
Richard was talking about other anti-Semitic incidents targeting our community. One thing of concern to our community, being that most targeted group, is that we want to ensure that we feel safe. All Canadians want to make sure that all other Canadians, regardless of religious background, regardless of any identifiable background, are safe, and that the law is being applied and that there are no double standards in the laws. Without consultations of some sort on that, as I mentioned, it's very strange and odd because there really isn't much of a case law record with respect to this particular section, which came about in 2001.
Liberal
Chris Bittle Liberal St. Catharines, ON
I'm sorry if this comes off the wrong way, but I just want it clarified. There is support for this bill, clearly.
This question is for both of you, perhaps. My concern is, do you fear that this is symbolic of Parliament and that due to issues with enforcement, your community may not believe there's greater safety of and protection for targeted communities or groups?
General Counsel and Senior Political Advisor, Centre for Israel and Jewish Affairs
I actually think that police forces are doing amazing work in Canada. We saw it in Ottawa. When the JCC and the synagogues and the mosques were attacked, police reacted vigorously. We were very grateful to them. If somebody thinks that Bill C-305 is a panacea and will solve any problem, that's not the case. It is one tool out of the toolbox. There's hate crime legislation; there is the SIP program that was put into place by the Conservatives, and renewed by the Liberal government; and we're very grateful to the government for that. It's a holistic, organic approach that is needed.
One thing that we mentioned in the whole debate over the elimination of section 13 of the Canadian Human Rights Act under the previous Parliament is that if Parliament wanted to go in that direction, there was a necessity to make sure that crown prosecutors and attorneys general would bring prosecutions under, I think, it's sections 318 and 319 of the Criminal Code more often and more vigorously. We haven't seen that yet. There's space to have a debate on what to do and how to make sure that hate speech and hate crimes are fought vigorously in Canada, and Bill C-305 is but one element in the whole thing.
Chief Executive Officer, B'nai Brith Canada
Perhaps I can just jump in quickly to support my friend here. It's interesting to note that for those hate crimes that just took place in Ottawa, there were charges laid under that original section, subsection 430(4). So it is being used. The question is just, is there data to properly understand that? The police do great jobs in this country. They do great work for all Canadians, but once again, maybe there should be guidelines to help instruct police when charges should or should not be laid under certain sections.
General Counsel and Senior Political Advisor, Centre for Israel and Jewish Affairs
Perhaps I might just complete the answer. Last Friday the perpetrator of the hate crimes in Ottawa pled guilty to the charges. His name cannot be mentioned because he was a month short of his 18th birthday, but he was prosecuted. The police and the crown attorney took it very seriously and were quite satisfied with the way it was handled.
Liberal
Chris Bittle Liberal St. Catharines, ON
Perhaps I'll ask a question that's a little out of the bounds of this hearing focusing on BillC-305. I'm hoping I won't be ruled out of order.
Do you see any amendments to this bill or other amendments to the Criminal Code that would increase the effectiveness of enforcement?
