Thank you, Mr. Chair.
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.