Justice Committee on March 9th, 2017

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

Mr. Fraser, what if a property that's only used occasionally by an identifiable group attracts the mischief because it is used occasionally by that group? Even if that group used the property once a month, what if the mischief is being perpetrated exactly because that group used it once a month, or once a year? What do you think about that line of reasoning?

[Colin Fraser, Liberal, West Nova, NS]

I think the difficulty would be that the public would have to know that the building is being used for that specific purpose. I worry that if we make it overly broad, and it's somebody's house, for example, the person may not know it is being used for that purpose. The crown could then prove there was a prayer group there last Saturday and that it was thus used for a religious purpose that one time, and would therefore attract the higher sanction.

I don't think that's what this hate mischief is designed to do. It's designed already to cover buildings used for religious purposes—thus churches, and mosques, but also other locations now where people would gather for other purposes in the other classes that we're now expanding. But I do think we have to be careful in how broadly we define these buildings so we can be sure that the intention of the person was to target that group because of their religion or whatever other reasons we're talking about.

That's why I say again that it doesn't mean this wouldn't be criminal activity and wouldn't be factored in during sentencing. But to call it hate mischief, I think it has to be coupled with the building itself being used primarily for that purpose. I prefer that. I think it's easier for the public to recognize that type of hate mischief rather than opening it up to all uses.

[The Chair, Liberal, Anthony Housefather]

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

It seems to me that would be a question of fact in a case. Your example that if somebody creates some sort of mischief against the house and it's not directed toward the prayer group that's meets there every third Thursday or something, then it would be treated as mischief because there's no evidence that it was specific to that particular religious group.

I'm worried about the present definitions being so broad that—and I know of one case, a religious group that meets in a room in an office building every Sunday, but the building is not primarily used for religious purposes. It just happens to get rented. If somebody trashes the building on a Wednesday, okay, that's a crime; I agree with you. But for provisions of a hate crime, there would have to be something directing it specifically at that group that's holding their religious services there on a Sunday morning. It seems to me that's what we want to capture.

My colleague pointed out, as others have, that you say “primarily used”. In this day and age you can have religious services or any other services. This is very broad, and it would be a question of fact whether the damage, the mischief that was done, was specifically a hate crime toward that group. I think that would be covered in here. Otherwise you're going to have a situation.... For instance, the groups that I mentioned that rent a room because they can't afford to have their own religious building somewhere, wouldn't be covered by this. I'm hoping you will accept the amendment on this.

[Colin Fraser, Liberal, West Nova, NS]

My only reply would be that if we proceed with the amendment, I don't see the linkage in the bill right now for the crown to have to prove that the individual knew this group met there, for example.

[Rob Nicholson, Conservative, Niagara Falls, ON]

The way he has worded it is that the building is “used”, etc., or is “associated with” them. He's made it broad enough so that if someone goes after any of these identifiable groups he has listed, based on their religion, race, colour, national or ethnic origin, gender identity, or sexual orientation, and who are using the building, and if the facts pan out, that person has committed a hate crime. I think he was just making the definition of the building, the structure, clear enough so it would capture anything that goes against those groups.

[The Chair, Liberal, Anthony Housefather]

Can I just point out a couple of things, Mr. MacGregor? Then I want to ask Mr. Cooper a question, or whoever on the Conservative side.

Number one, in addition to what Mr. Fraser mentioned about aggravating factors, it could still be a hate crime if the police were able to set it out. The only difference between this section and other sections on hate crimes is that the maximum sentence is 18 months instead of six months on a summary conviction. Truthfully, this section is not the arbiter of hate crimes.

My question for Mr. Cooper is a little different.

In the event that the wording, “identifiable group”, is adopted, none of the other amendments can be adopted, so I want to make it clear to everyone what I see as the difference between this list of identifiable groups versus those in subsection 318(4), which is referred to in the other amendments.

Here, what is missing is “sex”, “age”, “mental or physical disability”, which is found in other amendments and in other sections of the Criminal Code. Now, “gender identity” is here, but not “gender expression”. “Gender identity” would not come into effect in other sections of the Criminal Code until Bill C-16 is adopted.

I'm just pointing out that I see some inconsistencies that you may want to consider, if indeed the committee wants to proceed to adopt this.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Yes. Addressing that point, Mr. Chair, your point is taken. The identifiable groups that are included reflect what the mover of the bill had incorporated as identifiable groups.

[The Chair, Liberal, Anthony Housefather]

Right, and just in case we move to a vote, you may want to consider those lists of groups.

Mr. MacGregor.

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

Mr. Chair, you took the words out of my mouth with your question.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon.

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

I have a question as well.

I've also wrestled with the concept of “primarily” and with trying to find some alternative wording that would be suitable here. The bare word “used” seems to me to be very broad. Does it constitute one use in a decade or one use ever, or is it some sort of regular, continuing use? I have a problem with that.

I don't know whether Mr. Cooper or Mr. Nicholson or Mr. Falk wants to respond to this. Or perhaps we could ask Mr. Gilmour whether he can give us any guidance from the Criminal Code as between the use of “used” versus “primarily used”.

[The Chair, Liberal, Anthony Housefather]

Mr. Gilmour.

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

Well, there is a difference, of course, between a building being “primarily used”—that means, presumably, the main reason that the building is being used is for that particular purpose—versus just “used”. “Used” could be someone using that particular building several times, infrequently, or just one time; whereas, “primarily used” means that the purpose for which that building has been built or established is primarily that use alone, and not other uses.

[The Chair, Liberal, Anthony Housefather]

Just to clarify, Mr. Gilmour, in Bill C-305 as proposed, and in the various amendments, we're not talking only about the building itself, but we're referring to portions thereof of a building. So if a portion thereof were primarily used, that would also.... Even if the rest of the building were used for something different, if you had a shopping centre and one portion was a church and it was primarily the church, that would also be covered.

[Glenn Gilmour]

That's correct, yes.

[The Chair, Liberal, Anthony Housefather]

Does that answer your question, Mr. McKinnon?

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

Yes, thank you.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Can we move to a vote?

[The Chair, Liberal, Anthony Housefather]

Yes, we certainly can.

I just noticed that one of our members is getting coffee.

[Rob Nicholson, Conservative, Niagara Falls, ON]

That's all the more reason to have a vote.

[Voices]

Oh, oh!

[The Chair, Liberal, Anthony Housefather]

I appreciate that.

Is there anybody else who wants to intervene? If not—

[Colin Fraser, Liberal, West Nova, NS]

[Inaudible--Editor]

[The Chair, Liberal, Anthony Housefather]

It not's a question of.... But I just want to ask, Mr. Cooper, whether you want to consider anything concerning the list of groups. Otherwise—