Justice Committee on Feb. 23rd, 2017

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

What I'm looking at is proposed paragraph 430(4.101)(c) that says:

a building or structure, or part of a building or structure, that is primarily used for administrative, social, cultural or sports activities or events—including a town hall, community centre, playground or arena—, or an object associated with such an activity

And then it carries on to paragraph (d) and talks about seniors residences. No part of this identifies these buildings or these structures or parts of structures with a religious organization or any kind of faith, any kind of ethnic group or racial group. It's very broad, in my mind.

Do you see that, and if so, do you see it as a problem?

[Ihsaan Gardee]

In terms of the actual events themselves, I think you need to look at a combination of things. You need to look at the location, as well as any indication that there was motivation of hate.

For example, I'm just thinking that the Muslim community has prayers that it conducts sometimes in public halls because spaces in mosques are too small to accommodate everyone. If you had, for example, a hate crime committed there, with somebody spray-painting, “Go home, Muslims”, or something like that on the building itself, even though the building is not purposed for religious use, one would have to conclude that there was a link there, if you had that kind of explicit connection between the crime and the motivation and the fact that there was recently an event there where a large number of a particular group may have been.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I think the current legislation mentions the motivations: motivated by bias, prejudice, hate, and so forth. Then it applies an additional sanction on cases where that has been expressed against a religious building. To me, that tends to focus it as much more serious when it's actually focused on a place of worship. It's still bad stuff, still hateful, but it's not necessarily a hate crime unless it's focused on a specific kind of building. This would broaden that quite extensively. To my mind, what it really means is that the location doesn't matter as long as it's in public view, so much as you can identify that it is motivated by hate, bigotry, prejudice, and so forth.

What would you say to that?

[Ihsaan Gardee]

I would be inclined to agree with you, that it's necessary to be able to identify that there are indicators of hate motivation behind the particular act of mischief, in order to make those kinds of conclusions. I think we need to look at that and look at the incident itself, as I said, to see the context and make that determination on a case-by-case basis.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Go ahead, Mr. MacGregor.

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

Thank you very much, Mr. Chair.

I certainly appreciate your appearing before the committee today and providing your expertise on this, with the background that you have with respect to some of the hate crimes that have been inflicted on the Muslim community and so on and so forth.

I wanted to ask you about another specific section of the Criminal Code. Section 718.2 of the Criminal Code gives a judge some discretion to add on to a sentence if the judge feels that the offence was motivated by bias, prejudice, or hate based on all of the identifiable factors, including religion.

Does the NCCM have any experience with how judges have used their discretion in the past? Can you provide us with some background on that? Has that section of the Criminal Code that allows the judge that kind of discretion been helpful in itself? Can you provide any commentary on that?

[Ihsaan Gardee]

Right.

To be clear, I'm coming to the committee today speaking from a community-based perspective and not necessarily as someone with a background in law. We do have lawyers and people on staff who would be able to provide a more in-depth answer to your question as it relates to the Criminal Code, the section that you highlighted.

Again, I think it's important, for the purposes I'm here today to speak on behalf of the NCCM, to again emphasize that this particular amendment, this proposed bill, is something that I think the majority of Canadian Muslims would be able to get behind and support as a way of providing a sense of greater comfort, knowing that there is concrete action being taken by government and by our judicial system to address this growing phenomenon.

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

I'll switch back to the bill at hand, Bill C-305. I think Mr. McKinnon's line of questioning perfectly encapsulates the struggle this committee is having.

A previous witness made mention that he'd like to see this bill both broadened and to become more specific at the same time, if that makes sense to you. One of the issues that have been raised in the specific language of this bill is that proposed paragraphs (a) through (d) use the phrase “primarily used”.

I wanted to receive your feedback. Say, there is a building that is not primarily used by an identifiable group, but hosts a regularly scheduled meeting by them once a month. It's also a building that's used for other activities. Would you like to see the language in this bill amended to try to capture that as well? Is that something you'd be supportive of? I want to get your feedback, because we're trying to find a way forward with this legislation.

[Ihsaan Gardee]

I appreciate that and I understand the dilemma. As I mentioned earlier, you worry about growth and creep and having to increase the number of places that are included.

Again, I would point to the fact that hatred generally knows no limits and no bounds, and it targets all groups. The commission of a hate crime doesn't necessarily have to be isolated just to a place of worship. It can target other places, and that's why I think it's so critical that we look at the markers that demonstrate that it was motivated by hate, and use those as a guidepost when we are assessing each different situation.

Even if a building is not primarily used for the purposes described in the bill, but used on an occasional basis, then there is an indication there that the crime was committed directly targeting a particular community. It would seem to make sense to look at that very seriously.

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

Previous witnesses, such as from the LGBTQ community, have identified that historically there have not been many safe places for them to gather, so they've relied on allied businesses, or even identifiable streets, which are not really covered in this legislation.

I guess that's a struggle for us. These places are identifiable places with an identifiable group. If someone were to target them with hateful graffiti directed specifically at that group, does that simply become mischief against city property rather than something meriting a stiffer sentence under this proposed legislation? That's my line of questioning. Do you see areas, based on your group's own experiences, that have been excluded by this and that we should broaden while at the same time becoming more specific? You see the struggle we're having here.

[Ihsaan Gardee]

Yes.

I think the example you used of the LGBTQ community was an excellent one, that they can sometimes be connected with various other different organizations, allied businesses, and so forth, and as a result of that, be exposed to potentially greater targeting. I would not be surprised if you were to find similar types of arrangements in other faith communities where they have connections to other, different types of organizations, and they use different spaces that could potentially open those spaces up to targeting as well, based on their affiliation with that particular group.

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

Okay, thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Bittle....

If not, would you mind if I asked a couple of questions?

[Chris Bittle, Liberal, St. Catharines, ON]

Yes, go right ahead.

[The Chair, Liberal, Anthony Housefather]

First, thank you very much for coming today. It's great to have you here. I want to come back to this narrowing versus broadening issue. One of the issues that has been raised by both my colleague Mr. McKinnon and Mr. MacGregor is the bill's wide scope.

Let's start with its scope. Do you agree with the intention of the bill that whether it is a religious institution, a black community institution, or a gay institution, it should be treated equally under the bill?

[Ihsaan Gardee]

Yes, we do.

[The Chair, Liberal, Anthony Housefather]

You do. Okay.

Would you agree if I were to say to you that something that happened at a mosque, a Muslim community centre, a black community centre, or a gay community centre—where it was identifiably linked to the group that was targeted—is different from an attack on a city hall or an arena where there are no...? I'm not saying there were Muslim prayers at the city hall or the arena. These groups didn't buy space there. It was just an attack on a city hall or an arena. Would you see a difference in how the Muslim, Jewish, or other targeted communities would react to a swastika being painted on a temple versus a swastika being painted on a city hall?

[Ihsaan Gardee]

Obviously, sacred spaces, as I mentioned, hold a particular importance in the hearts and minds of those who frequent them. At the same time, I think the hatred committed—such as a swastika drawn anywhere—would be offensive to anyone. Regardless of where it is posted, it's equally offensive. Again, I think we should look at the hate and the motivation behind it, not necessarily the location in isolation without that motivation.

[The Chair, Liberal, Anthony Housefather]

I understand, but this law is basically geared toward a longer potential prison term for an act of mischief, or a higher fine for an act mischief, than a different type of act of mischief. As Mr. MacGregor mentioned, if it's a swastika were painted on the city hall, couldn't it be considered an aggravating factor in sentencing? There's been a contention by some that you need to restrict the number of buildings or locations involved to show that there's a real seriousness there because these are protected or sacred spaces. This is why the current law only grants this added sentence for an attack on a church, a mosque, or a synagogue, or something similar to that. But you still believe that there should be a broader definition of buildings?

[Ihsaan Gardee]

I think you need to look at it, and I think you need to look at the context, as I said. Even if there is no direct connection to a particular faith community, many of the employees who work in a particular building may be of a particular faith group. The school in London, Ontario, that I mentioned has people from various faith backgrounds, but also many Syrian newcomers. There was some very disturbing messaging there. I think we need to look at the context and at the messaging, and take our cues from those.

[The Chair, Liberal, Anthony Housefather]

I understand what you're saying, that if it's a public school where a very large percentage of people are from one faith community, you can have an issue. I do understand that, but at the same time, you'll have a huge number of crimes that will be labelled as hate crimes. I guess the question is, do you believe that's really necessary? Again, I understand, and I'm not minimizing an act of vandalism or mischief against a public school. If I were to try to limit it to say that if it were a building, property, or location owned, leased, rented, or occupied by one of the groups listed, it should be subject to protections? Would that not be sufficient?

[Ihsaan Gardee]

That it would not be sufficient just to have that as a limiting factor, but that the place would have to actually have a formal connection to the group?

[The Chair, Liberal, Anthony Housefather]

Yes.

[Ihsaan Gardee]

Again, I would say, even if a particular building or a particular place doesn't have a formal connection to a particular group, that doesn't stop people who espouse these hateful ideas and ideologies from trying to marginalize and vilify groups based on their own perceptions that a place might have a connection to one of those groups.