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.
Counsel, Criminal Law Policy Section, Department of Justice
In terms of minimum sentencing, that's correct.
Liberal
The Chair Liberal Anthony Housefather
Right. That's the only logic for the distinction here because, as you said, almost every property is valued at more than $5,000. So the only distinction is the minimum sentence on summary conviction.
Liberal
Committee Researcher
No, it's a maximum on a summary conviction. There are two ways of pursuing it. If you go under summary conviction, you will have six months, and if you go on to an indictment, it would be 10 years.
Counsel, Criminal Law Policy Section, Department of Justice
The distinction is that the maximum you could get if you proceeded by way of summary conviction is two years. It's not as if there's a minimum penalty for the summary conviction offence. It's what the maximum penalty is for a summary conviction.
There is that difference. But certainly in terms of damage to a structure such as a building, I just wanted to make sure people understood that it would fall under the general mischief offence offence with the higher threshold for punishment.
Liberal
The Chair Liberal Anthony Housefather
That's understood.
Can you guys come back to...because I want to understand exactly the distinction. My understanding of the distinction was related to the 18 months versus the six months, and that's pretty much it.
Counsel, Criminal Law Policy Section, Department of Justice
Yes, that's pretty much it.
Liberal
The Chair Liberal Anthony Housefather
Yes, okay.
Thank you so much.
Let me go around for questions. Whoever has questions for the Department of Justice, please put up your hand.
Go ahead, Mr. McKinnon.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Thank you for coming today.
The problem we're wrestling with is whether we can expand this to cover spaces or places that are primarily associated with groups other than religious organizations or faiths, such as LGBT groups, racial groups, ethnic groups, and so forth. I understand that the purpose of limiting it to religious or faith groups at this point is to basically draw a line between hateful speech that is just free speech and speech that's raised to a higher level by targeting a core symbol of a faith, for example.
I think we'd like to see some sort of way, some sort of language, that would let us expand that sort of treatment to ethnic-based groups, racial groups, LGBT groups, and so forth. Can you tell us how to do that?
Counsel, Criminal Law Policy Section, Department of Justice
I can't give you the government position on the bill at this time. It would be inappropriate for me to do so. However, I think I can maybe make some comments to help you in your considerations.
As I mentioned, subparagraph 718.2(a)(i) of the Criminal Code, the sentencing provision, is very broad in scope. Even under the current law, without Bill C-305 coming into effect, if there was mischief committed against a space of some kind that the LGBTQ+ community were engaged with, that would be caught by the hate crime sentencing provision, assuming that the people who committed the vandalism were caught, charged, prosecuted, and found guilty beyond a reasonable doubt of having committed the mischief with this hate motivation in their mind.
One question you might want to ask is the degree to which an expanded hate crime mischief offence would have consequences for the hate crime sentencing provision in the Criminal Code. As a general rule, criminal offences are designed to be very general in nature, to have very broad application in scope—for example, crimes such as assault, assault causing bodily harm, and the particular factors that go into play in deciding whether the sentence should be a relatively light one or a higher one are things that are taken into account at sentencing by the judge. Thus, in a sense, the expansion in Bill C-305 to include all other grounds or properties is a deviation from the standard way in which crimes are usually created, where you have a very broad crime and the factors are taken into account at sentencing.
Parliament can decide, of course, in its wisdom, what it wishes to do, but I think it's reasonable to ask what possible effects such a large expansion could have on the hate crime sentencing provision in the Criminal Code, which was the original provision set out in the Criminal Code to deal with hate crimes way back in 1995.
I hope that answers your question somewhat.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Are you saying, sir, that if we expand this the way we're thinking of, to include other buildings, other kinds of properties, that it would harm our ability to sentence as hate crimes?
Counsel, Criminal Law Policy Section, Department of Justice
Well, the hate crime sentencing provision applies to all crimes in the Criminal Code, including crimes of violence and crimes against property. As a conceptual issue, the more one expands a particular crime into an area that has already been covered by an existing Criminal Code provision, it does then, I think, raise the question of what effect that would have. I don't know what the effect might be, but could it have the effect of watering down the hate crime sentencing provision? I'm not entirely sure, but I do know, and this is something for you to consider, that in 2014 the Law Commission of the United Kingdom published a report entitled “Hate Crime: Should the Current Offences be Extended?”
They have certain hate crimes in there, specific hate crimes, but they also have, as we do, a provision dealing with sentencing. One of the issues they raised in the report was whether the expansion of the aggravated factors would have potential deterrent effects. I think one of the arguments that has sometimes been made around this table is that an expanded hate crime in this area might have a positive deterrent effect. So the question they asked was whether extending the offences would have a greater deterrent effect than pre-existing equivalent non-aggravated forms of offence. It goes on to say the following in its discussion of this:
there is significant doubt over both the direct and the general deterrent effects of criminal offences, their creation, prosecution or punishment. We consider that attributing any direct deterrent effect to extending the aggravated offences would be open to further doubt, in that the conduct involved is already criminal. People who are inclined, for reasons of hostility towards a victim's disability, sexual orientation or transgender identity, to commit one of the offences capable of being aggravated would probably not be deterred from doing so simply because a new criminal offence has been created with a higher potential sentence or an “aggravated” label.
It goes into somewhat more detail, comparing creating an aggravated hate crime and looking at the general sentencing provisions in British/U.K. law.
So you might want to have a look at that particular report as well for your deliberations. It's available on the Internet; just type in “Law Commission hate crime” and it will pop up.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Mr. MacGregor is next, and then Mr. Bittle.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thank you, Mr. Gilmour, for coming today and for providing this much-needed technical analysis of the bill.
You may have already covered my question a bit in your answer to Mr. McKinnon. Is it better from a policy point of view to target a behaviour, or the location where that behaviour occurs? You already mentioned that under section 718.2, judges have the discretion to add to a sentence for any kind of offence, if it was motivated by bias or hate against an identifiable group.
If someone commits mischief today and it's clearly identifiable as motivated by hate against an identifiable group, what I'm reading is that section 718.2 allows a judge to make the sentence far greater than if it had been committed by itself.
Counsel, Criminal Law Policy Section, Department of Justice
The effect is, as I understand subparagraph 718.2(a)(i), that it's not a discretionary issue for the judge. It says the judge “shall...take into consideration”.
Counsel, Criminal Law Policy Section, Department of Justice
It doesn't change what the maximum penalty is for that particular crime. What it means is that the judge is to take that factor into consideration when deciding, within the range that's provided by the criminal law up to the maximum sentence already provided, at what level the penalty should be. If it's motivated by hatred, the idea is that the judge would take that into consideration in basically moving the penalty upward from what would normally be the penalty imposed, had the mischief not been committed because of the hate motivation.
That's how it's designed to work. It doesn't bump up the maximum sentence that's provided for the crime.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thank you.
Going into the actual wording of Bill C-305, if you look at proposed subsection 430(4.101), paragraphs (a) through to (d), we had witnesses talk about the use of the phrase “primarily used”. Is the use of that terminology going to be problematic in excluding certain types of property, or do you think it would be best for us to modify that wording to make it more encompassing?
A large part of the story from this committee so far has been about the language in this and whether we need to broaden it while being more specific. If you can help direct us to the goal line, that would be much appreciated.
Counsel, Criminal Law Policy Section, Department of Justice
As you say, I'm not in a position at this point in time to comment on what the government's position is on the bill, but I can comment on the effect.
NDP
Counsel, Criminal Law Policy Section, Department of Justice
Right now, you're right that paragraph (a) has basically the same wording as we currently have for the current hate crime mischief offence, which uses the words “primarily used for religious worship”. My guess would be that in crafting paragraphs (b), (c), and (d), the drafters of this bill decided to use the same terminology for the remaining parts; thus in paragraph (b), for example, it would be a building that is primarily used as an educational institution—for example, a university or a community college.
If one were to take “primarily” out and just say “that is used”, then it broadens the scope considerably, because it really wouldn't matter what the primary use of the building was; it would matter more what it was being used for at the time, presumably, that the mischief took place.
It's the same with the other paragraphs as well. Removing the term “primarily” and just using the term “used” would be definitely an expansion of the kinds of buildings that would be protected by the bill.
Liberal
Chris Bittle Liberal St. Catharines, ON
Thank you so much.
I would like to ask questions in regard to the underpinnings of the argument you brought forward. You started with the 1995 rationale behind the bill. I appreciate that it was a “Liberal promise made, Liberal promise kept” type of situation.
February 23rd, 2017 / 5:10 p.m.
Conservative
