Justice Committee on Feb. 21st, 2017

[The Chair, Liberal, Anthony Housefather]

You're very welcome.

[A voice]

He's a generous chair.

[Michael Mostyn]

I didn't prepare for other sections, but speaking very generally to that, there's always room for improvement.

Certainly, I know that police forces all across the country are doing a much better job nowadays of reaching out to community groups of all backgrounds, trying to better understand where they're coming from.

My suggestion is not so much to make changes to the criminal code, but also to focus on the fact that the role of police is to protect and serve. There are a number of police forces that are now hiring public relations firms and getting out into the community groups. That's all wonderful and all great, but their primary purpose is to keep all communities safe.

There are sections in the Criminal Code—sections 318 and 319—that require the consent of the Attorney General. There has always been some talk, not just in the Jewish community but also in other communities, about whether sometimes, for political correctness, politicians want to charge certain groups or not for certain offences, depending on how it plays out in the media.

It's a matter of constant study and constant vigour, and of every community in Canada standing up for every other community and ensuring that intolerance and hatred are not tolerated.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Thank you very much, Mr. Bittle.

Mr. MacGregor is next.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much, Mr. Chair.

I would like to welcome our witnesses to the committee.

It's good to see you again, Mr. Marceau, after we exchanged ideas on Bill S-201 last year.

Mr. Mostyn, I want to go to your testimony. I didn't catch the amendments that you suggested in place of the terminology “primarily used”. Could you just go over those again, please?

[Michael Mostyn]

Sure. I had just suggested changing the wording from “primarily used for”, which are the three words that are in the paragraphs, and suggested an alternative description, because I don't think this is where you want to get really narrow. I think this is where you want to be broad.

If a property is being targeted for hate and hate bias, for that mischief, you want to make sure that the language captures this more broadly. I just suggested two terms, either the use of the term “substantially” or the term “regularly”, rather than the word “primarily”. I think that if you were to insert that terminology, you might be better able to capture and broaden the type of properties that should be protected under legislation such as this.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

Also, when you were talking about the lack of case law or a history, was that with respect to section 718.2 of the Criminal Code?

[Michael Mostyn]

It was paragraph 718.2(a). That's the punishment that can come into sentencing.

When we look through that as it applies to general mischief, there are a few cases—but not many on record—that apply in particular to mischief to property for religious institutions, which is what we're considering here today.

To Richard's point, you had somebody pleading guilty just this past week. That's something that's not going to be recorded or captured, that lawyers are going to be able to take a look at and analyze.

It's very possible that with the use of this section and the video cameras that are out there today—and many of our targeted communities, unfortunately, must have video camera surveillance and security at all of these institutions—it may also be the fact that sometimes people are caught red-handed and just plead guilty because they know that they did it, and they're not going to fight it.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Even though a judge, when sentencing, can take into account those aggravating factors to increase the sentence, do you still feel that Bill C-305 is necessary in closing some loopholes that exist?

[Richard Marceau]

Yes.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Good. I'm just getting that on the record for when we deliberate on the bill clause by clause.

One thing that I asked the sponsor of the bill—and I think some reference was made to it—is this.

Mr. Mostyn, you referenced the fact that some of the crimes that could result from this bill's passage may actually be considered worse than if a person did the same to someone private home. Do you have some suggestions?

If someone were to spray-paint racist or religiously motivated graffiti on a park bench, that could net them a harsher sentence than if they did it to someone's home. Do you have suggestions for the committee on how we should proceed with respect to this bill in that regard?

[Michael Mostyn]

I don't think the park bench would be covered.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

If it's within the grounds of a piece of property listed within, yes, it would be.

[Michael Mostyn]

Correct. It could be in that example.

The reason I raised the example of the anti-Semitism that took place in North York is that our community, the Jewish community, does in fact self-identify 365 days a year, because of the fact that Jewish households have mezuzahs. Often, with many religious groups, there's a seasonal identification. You might put up a wreath around Christmas time. There are other religious ways. Our community is vulnerable to this.

You could use the existing mischief with the section 718.2 provision, and you could still get that up to 10 years. The opportunity is there to allow for a degree of fairness. Again, it's something that the committee should consider, because where does it go from a senior's building to a building that has a large number of identifiable groups? This condominium that was targeted has a lot of Jewish residents, but it's not a Jewish residence. It's just the fact that many people of the same faith live in the same building. I would imagine that's pretty common across all religious groups in Canada.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

I have a final quick question for both of you. If you go to proposed subsection 430(4.101), and you look at paragraph (c), it talks about a building being used for “administrative” purposes. I have some concerns. Do you think we need to define that term? A lot of buildings are used for administrative purposes whether or not they fall within one of the specified groups. If someone of some sort of a religious or ethnic background works in an administrative building like the CIBC, and it's spray-painted with graffiti, are we casting the net too wide if we don't define that specific term?

I'd like your thoughts on that.

[Richard Marceau]

Proposed subsection 4.101 makes reference to section 4.1. It talks about being “motivated by bias, prejudice or hate based on religion, race, colour”, etc. It's not every administrative building that would be caught in it. Here's the clearest example I can give you. Let's say the Jewish Family Services of town X has an office in an administrative building. That should be covered because the reason it would be targeted under this section is because it's identified as being Jewish.

[Michael Mostyn]

If I can just add to that, I think it's very unlikely that that would occur. If the commission of the mischief is motivated by bias, and they have to show that as an essential element of the offence, why would the police charge somebody when they know there's less chance of a conviction than of their going through the regular general mischief section? I think that's very unlikely to happen.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you both.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair, and thank you, gentlemen, for coming in today and giving your very compelling testimony.

First off, I want to start by saying how disheartening it is, and how disgusted I felt hearing about the North York attack on a personal home of individuals. I was speaking to the member from Willowdale, whose riding it happened in, and he said that in speaking to the lady, she said it's expected. That disgusts me even more. It should not be expected. We need to do everything we can to protect all communities.

It's troubling. I think our government must do more. You also mentioned what an imam said in a sermon, and that's also disgusting behaviour. We need to do more to keep our communities together. This brings me to the intent of this bill, which is to stop these kinds of acts, to stop vandalism, etc.

I wonder if you think that this amendment to the Criminal Code will enhance deterrence. Will people actually be stopped by the addition of this provision within our Criminal Code?

I'd like both of your comments, please.

[Michael Mostyn]

Do I think it's going to stop the hate? No, I don't, unfortunately. Unfortunately, I don't know what Criminal Code provisions you can propose that are going to stop the hate. Certain individuals are prejudiced and act out their bias against identifiable groups. That is not something that the Criminal Code alone can deal with. Education has to happen.

There are all sorts of initiatives. Even then, there will always be.... That's the reason why we have the Criminal Code. The fact that there are more severe punishments could act as a bit more of a deterrent for those who understand it. In cases like this, unfortunately, that's more what has to be considered.

[Richard Marceau]

I would agree with Michael's statement. It's both a deterrent and a strong signal. Let's not underestimate the power of statements by parliamentarians, of people here in this building voting and saying something. Those are very powerful and they reverberate throughout the country.

Will it stop? Unfortunately, it won't. Many things have been illegal for centuries and are still happening, but the message still needs to be sent, and the punishments still need to be applied.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

I know we've talked about punishments a little bit today, and about the police being hesitant to press charges where there's an additional element to be proven, for example, general mischief versus a specific one.

Do you think there's anything we can do to encourage the police to then also give more precedence to this specific section in the code as opposed to the more general one?

[Richard Marceau]

Some police forces around the country—not all of them—have a hate crimes unit. Those units tend to be better informed and more aware of the tools that are included in the Criminal Code. Ottawa has one; B.C. has one; but not every police force across the country does. I would suggest that message needs to be sent. As well, police officers and crown attorneys dealing with hate crimes and such must be more aware of how to better fight crimes that way.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Some concerns were raised here today, as well as when this bill was debated in the House, about the broadness of the bill.

Mr. Chair, if it's okay with you, can we please ask for the government's position?

Mr. Mendicino.