Evidence of meeting #48 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 crimes.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Ihsaan Gardee  Executive Director, National Council of Canadian Muslims
Glenn Gilmour  Counsel, Criminal Law Policy Section, Department of Justice
Lyne Casavant  Committee Researcher

4:40 p.m.

Liberal

The Chair Liberal Anthony Housefather

Okay. I appreciate that.

We'll go to short questions, for anybody who has them.

Mr. Cooper.

4:40 p.m.

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Just to follow up the line of questioning by Mr. Housefather, based upon what I'm hearing you say, you would support encompassing all types of property. You make no distinction at all between whether it is a school, a synagogue, or a mosque. If the act is an act of mischief that is motivated by hate and that expresses hate, your position is that, regardless of what property specifically is targeted, this section of the act should encompass all of those acts of mischief. Is that, in essence, your position?

4:40 p.m.

Executive Director, National Council of Canadian Muslims

Ihsaan Gardee

That's correct. You have to remember, as I mentioned, that these are message crimes, and that the message is still heard, even if it's targeted at a place that is not traditionally frequented by a particular faith group. It's still heard by the people from that group, as well as by others within society. It reinforces the “other-ization” of particular groups and creates a sense of alienation and marginalization in those groups, even if there is no formal direct connection to that particular place.

4:40 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you. I think that's well understood.

Are there any other questions?

Do we have unanimous consent for Mr. Mendicino to ask a question?

Go ahead, Mr. Mendicino.

4:40 p.m.

Liberal

Marco Mendicino Liberal Eglinton—Lawrence, ON

Thank you, Mr. Chair.

Just building on the line of questioning by both the chair and Mr. Cooper, the two categories that seem to engage the section that is the subject of this act are hate speech and buildings and structures.

Based on your evidence, and as I understand your answers to the chair and Mr. Cooper, if we do away with any kind of defining of the categories of structures, does that render that second category essentially nugatory? What's the point of having any category?

I ask this because, if you go back to the original intent of Parliament when it created this section, it originally dealt specifically with building structures that are obviously and publicly identifiable as being used primarily for religious purposes, structures in those explicit categories that are already there. If we do away with that, what comments can you offer about what that does to the original intent of the section?

4:40 p.m.

Executive Director, National Council of Canadian Muslims

Ihsaan Gardee

I think it would seem to broaden it and it would certainly seem to be an attempt to capture more of what is actually happening out there. If you maintain it as it is, you could have incidents occurring that are increasing the sense of alienation and marginalization of specific groups while appropriate attention and resources are not being provided by government through policies, as I mentioned in my submission, that specifically combat Islamophobia, anti-Semitism, racism, homophobia, or any type of xenophobia.

Also, building on the existing policies that we have to promote things like multiculturalism, inclusion, and so forth would seem to me to be important to consider as well.

4:45 p.m.

Liberal

Marco Mendicino Liberal Eglinton—Lawrence, ON

Just to get back to the premise of my question, does it make sense to your mind to still have buildings and structures as a second criterion that engages this section for the purposes of special condemnation of hate speech expressed in certain places that relate to the identifiable protected group of those who are religious?

4:45 p.m.

Executive Director, National Council of Canadian Muslims

Ihsaan Gardee

I think it makes sense to maintain continuity, to certainly have that there. But at the same time, it should recognize that these spaces are not the only ones that are targeted and that there is a growing trend of xenophobia targeting various groups. Currently Muslims are being targeted, as I mentioned. Tomorrow it will be another group. If you're not actually capturing that, then you don't have a real sense of what's actually going on.

February 23rd, 2017 / 4:45 p.m.

Liberal

Marco Mendicino Liberal Eglinton—Lawrence, ON

For those other protected groups, I don't know if you're familiar with the Criminal Code or not, but under section 718.2, there are other sentencing principles that a trial judge can look at, including whether or not the offence is motivated by hatred based on all of the other groups.

Are you familiar with that section?

4:45 p.m.

Executive Director, National Council of Canadian Muslims

Ihsaan Gardee

As I mentioned, I don't come from a legal background but I am surrounded by lawyers. I'm sure I can get back to you with a more qualified statement regarding your question.

4:45 p.m.

Liberal

Marco Mendicino Liberal Eglinton—Lawrence, ON

Okay.

Thanks, Mr. Chair.

4:45 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Any there other short comments?

If not, I thank you very much for being here with us today. It's very much appreciated.

We'll take a short break while the next witness comes up.

4:50 p.m.

Liberal

The Chair Liberal Anthony Housefather

Ladies and gentlemen, we're going to reconvene.

We are very lucky to be joined by Mr. Glenn Gilmour, counsel from the criminal law policy section of the Department of Justice, who is here to answer questions from the committee relating to this bill.

Mr. Gilmour, welcome.

4:50 p.m.

Glenn Gilmour Counsel, Criminal Law Policy Section, Department of Justice

Thank you very much for inviting me.

4:50 p.m.

Liberal

The Chair Liberal Anthony Housefather

Did you have anything you wanted to say before we ask questions?

4:50 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Glenn Gilmour

I have a couple of comments I would like to make first just for the record.

4:50 p.m.

Liberal

The Chair Liberal Anthony Housefather

Please.

4:50 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Glenn Gilmour

A part of it might be a bit of a history lesson for people around the table, but I thought I'd start with the discussion about the provision dealing with sentencing, subparagraph 718.2(a)(i) of the Criminal Code.

That was originally created in 1995 by the then-Liberal government under Jean Chrétien. I believe it was a campaign promise that had been made in the 1993 election. I thought I'd quote something that Allan Rock had said at that time. In his appearance before the Standing Committee on Justice and Legal Affairs in 1994, he discussed the hate crime sentencing provision that was proposed in the bill at that time, which subsequently enacted 718.2(a)(i). He said:

Why is it there? I think all of us are aware of the appalling increase in recent years in the incidence of hate crimes in our society. Every party that ran in the last election expressed its concern about that phenomenon. I think we join together regardless of party stripe in agreeing that we cannot tolerate hate crimes in Canadian society. It's there because of certain commitments made by the government, of which I'm a member, during the election and since it. It's there because B'nai Brith, for example, has told the Department of Justice that there are now over forty organized hate groups in Canada actively at work every day of the week.

He went on to say:

When someone goes onto my property and spray-paints graffiti on the side of my house, that is a crime that should be dealt with accordingly. I am the victim. But if they walk into the grounds of a synagogue and spray-paint a swastika on the side of the wall, the attack is not only against that property and that owner; it's against the Jewish faith as a whole. Every member of the Jewish faith is intended to feel intimidated and more vulnerable because of it. That is what distinguishes crimes motivated by hate

—presumably from other regular crimes that are not so motivated.

I put that on the record to indicate that when the sentencing provision was enacted in 1995, it was because of a strong feeling that Canada needed to enact special legislation to deal with hate crimes and to more appropriately denounce the seriousness of those kinds of crime.

Therefore, you have 718.2(a)(i), which reads:

A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor

You have a very strong sentencing provision in the Criminal Code that was originally created way back in 1995. The concerns for putting it in there, I think, very much mirror the sorts of concerns that have been expressed around the table by some of the witnesses who have appeared before this committee.

The next change that happened was the creation of section 430(4.1) of the Criminal Code, the current hate crime of mischief directed against property “primarily used for religious worship”. It's motivated by hatred based on various criteria.

The reason for the limiting of that offence to the concept of protecting property primarily used for religious worship was that it was thought that that particular kind of mischief would create a chilling effect on those who wanted to practise their religion. Therefore, it was designed specifically to protect that kind of property and not any other kind of property, even though when the bill that the offence was part of—the Anti-terrorism Act of 2001—was being debated in Parliament. There were some organizations that came before the House of Commons and the Senate and argued that it should be expanded to include other kinds of property.

I'd like to correct what appears to be a misconception that occurred in the testimony given the other day by Mr. Arya. There was a question asked about a house of worship being vandalized and the maximum punishment of 10 years in jail for that. If a Jewish community said it had been vandalized, the maximum punishment would be two years in jail. In case there is any misconception, that is incorrect. The way that the general mischief offence works in the Criminal Code is that it can either be prosecuted by way of indictment with a maximum penalty of 10 years in jail, or simply by way of summary conviction, which is a maximum of two years in jail.

The way the choice is made whether to proceed by indictment or by summary conviction depends not on the value of the damage to the property, but on the value of the property itself. Under the general mischief offence, if I were to vandalize a home, on the assumption that most homes these days cost more than $5,000 or less, it would be the general mischief offence that would apply, which has a maximum of 10 years in jail. That is the same penalty that is proposed in the private member's bill C-305. It's also the same penalty that currently exists for the hate crime mischief offence.

I also want to briefly mention that there had been mention of some statistics published in recent years of hate crimes that have been committed. According to my analysis of the testimony, the most recent statistics quoted for the committee were those from the year 2013. In fact, last year there was a table published by Statistics Canada that gave hate crime statistics for the year 2014. It was just a table; it was not in the form of a regular report with analysis. According to those tables, in the year 2014, the total police-reported hate crimes—and these are reports that are made by the police to Statistics Canada—was 1,295. Of those, in terms of the violations of the criminal law that occurred, the total of all violations to the criminal law that the police categorized as hate crimes was 1,170. Of those, 523 were mischief, and mischief in relation to religious property motivated by hate was a total of 89.

I just wanted to bring those particular issues to the attention of the committee.

4:55 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much for bringing those.

I just want to clarify one point in your correction. The difference, as I understand it, would be that in a summary conviction, if it's mischief related to religious property, it's an 18-month offence, and it's only six months at maximum if it's a property valued at more than $5,000.

4:55 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Glenn Gilmour

I think the hate crime mischief offence, as it is currently worded, would allow for a maximum punishment of 10 years in jail.

4:55 p.m.

Liberal

The Chair Liberal Anthony Housefather

But the minimum is six months in one, and 18 months in another, is it not?

4:55 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Glenn Gilmour

There is that.

4:55 p.m.

Liberal

The Chair Liberal Anthony Housefather

That's the only distinction, essentially that—

4:55 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Glenn Gilmour

That's the only distinction.

4:55 p.m.

Liberal

The Chair Liberal Anthony Housefather

—the minimum sentence is six months in one and 18 months in another.