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Standing Senate Committee On Legal And Constitutional Affairs Evidence

OTTAWA, Thursday, June 15, 2017

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-305, An Act to amend the Criminal Code (mischief), met this day at 10:30 a.m. to give consideration to the bill.

Senator Bob Runciman (Chair) in the chair.

The Chair: Welcome colleagues and invited guests to today’s proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Today we begin our consideration of Bill C-305, An Act to amend the Criminal Code (mischief). With us today for the first hour are Chandra Arya, who is a member of Parliament for Nepean and sponsor of the bill; Rebecca Bromwich, Director, Department of Law and Legal Studies, Carleton University; and a familiar face before this committee, William Trudell, Chair of the Canadian Council of Criminal Defence Lawyers. Thank you all for being with us.

Mr. Arya, you wish to lead off? The floor is yours, sir.

Hon. Chandra Arya, Member of Parliament for Nepean, sponsor of the bill: Thank you, Mr. Chair. I thank you all for providing me an opportunity to appear before you to present my private member’s bill. Bill C-305 was passed with support from all political parties and all the members of the House of Commons.

Bill C-305 seeks to amend a subsection of the Criminal Code which deals with damages to property due to crime motivated by hate based on religion, race, colour, or national or ethic origin. Bill C-305 seeks to expand this list to include age, sex, sexual orientation, gender identity or expression, mental or physical disability.

The expansion of the list is to cover the range of prohibited grounds under the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and provincial human rights legislation.

In its present form, the Criminal Code creates an offence for hate-motivated mischief relating to religious property, which includes places of worship: churches, temples, mosques and synagogues and also cemeteries. Bill C-305 proposes to expand the scope of buildings to include other properties used by religious and other identifiable groups as defined in the Criminal Code. These would include educational institutions or day cares; buildings used for administrative, social, cultural or sports events, such as a community centre or a residence for seniors.

The reason to expand the list of structures covered is due to the fact that the places of worship are not the only places that have been so far targeted, and there is increasing hate-based crimes targeting other buildings used by religious and other identifiable groups. Hate-based mischief can have a long-lasting impact on the community.

In a recent study by the Department of Justice, it stated the commission of a hate crime is against not only the individual, but the entire community. It quoted David Matas. “People live in community. Rights are exercised in community.”

With the victims of hate crime, it is important to consider that the impact on the community is particularly devastating as hate crimes are message crimes in that the perpetrator is sending a message to the members of a certain group that they are despised, devalued or unwelcome in a particular neighbourhood, community, school or workplace.

As well, it is important to consider that the impact on the individual victim may result in the victim rejecting the aspects of themselves that was the target of the attack or associating a core part of their identity with fear, loss and vulnerability.

Consideration of this bill by your committee could not have been more timely. A report by Statistics Canada released this Tuesday shows that the number of police-reported hate crimes against Muslims jumped by 60 per cent in 2015 compared to the previous year. There were 159 anti-Muslim incidents reported to the police that year, up from 99 the year before. Jewish Canadians remain the most targeted religious minority.

During the same period, the total number of incidents, such as mischief, vandalism and graffiti, increased by 5 per cent. This is the focus area of Bill C-305.

While this bill will not solve every issue related to racism and discrimination, it will take an important small step in protecting those who are most vulnerable, strengthen the Criminal Code and act as a strong deterrent.

Bill C-305 takes a strong step in making our neighbourhoods and communities a safer place to live. Think of the strong message we would be sending to all Canadians that not just select people but all people of Canada can feel safer knowing that this Parliament has taken concrete and strong measures to protect them.

Thank you, Mr. Chair, and I would like to to answer any questions you may have.

The Chair: Thank you sir.

Rebecca Bromwich, Director, Graduate Diploma in Conflict Resolution Program, Department of Law and Legal Studies, Carleton University, as an individual: Thank you for having me and providing me the opportunity to speak on this important bill, which I agree with Mr. Arya is timely indeed. It’s very evident from legal and social research, as is the case from the Statistics Canada report that was referenced, that hate crimes in general are up by 5 per cent, and anti-Muslim hate crime increased by 60 per cent. Of course those numbers are from 2015 and prior to some of the more recent events that we are all aware of. I’m referring to the attack on worshippers in a mosque in Quebec City on January 29 of this year, and also the spate of hate graffiti that took place in Ottawa last fall. So certainly we know from statistical empirical research, anecdotally as well from social research, that there is a problem with hate crime in our communities. I do agree this bill is timely.

In particular, in brief, I’m very supportive of the expansion of the definition of the categories of people and communities to whom this protection applies to include people, including those who are disabled, including on the basis of ageism, and including of course the LGBT community who are conspicuously absent from the current wording of section 430 of the Criminal Code. I am very supportive of that.

I do want to express some caution about this. On the one hand, it’s very important to include the diversity of our communities in the protections against victimization by hate crime, and also to include all spaces, including public buildings, like universities — places where I work — community centres, seniors residence, child cares, schools where our children are, where my children are, and to add things like gender identity and sexual orientation to the criteria of what might constitute a hate crime when it comes to mischief. I strongly support those proposals to protect full inclusion of LGBT persons and disabled persons. Section 430 right now is anomalous as compared to other provisions relating to hate crime and as compared to other provisions in our legislation, and in particular in the Charter section 15, which has been interpreted to include those dimensions of diversity; so section 430 of the Criminal Code, I would argue, is out of date, and it is time indeed to update it. It diverges from our other legislation.

But I have some concerns. I have a concern with respect to the incarceration rates we currently are seeing in our country, which, as you know, are at a very high level. There is now a proposal put forward by the Minister of Public Safety at the provincial level to build a new jail.  We are looking at an expansion in the number of people in prison, particularly in the number of people in pretrial detention. Of course, people in pretrial detention both at the youth level and the adult level currently out number people the numbers of people in sentence custody in Canada. This is very problematic.

Perhaps the legislative proposal in Bill C-305 or perhaps the general gist of it in terms of remedying it may not require an amendment, but, rather, to be situated in general context.

The Chair: Your rate of speech is a little too fast.

Ms. Bromwich: Okay.

The Chair: Are you finished?

Ms. Bromwich: No; I’m not finished.

The Chair: Slow down your delivery for the translators.

Ms. Bromwich: Sorry about that.

I’m worried about putting more people in jail. I’m worried that we are already in that mood, that we keep putting more people in jail. The numbers of people incarcerated in Canada keep increasing and, in particular, the numbers of people in pretrial detention. This is something my own research in my Ph.D. and subsequently has shown to be very problematic in terms of the conditions in prison. If we’re concerned about the conditions in prison, the easiest way to deal with that as a first step — beyond all the other steps we need to take in the prisons — is to have fewer people there and stop overloading those places.

It’s really important that we take concrete measures to address xenophobia, racism, the increase in hate crime and, in particular to address Islamaphobia. However, I am also concerned about the remedial provisions of proposed section 430. Proposed section 430.4(1)(a) sets forth that it’s an indictable offence and makes a new category of people for new offences liable to a term of imprisonment not exceeding 10 years. That’s a lengthy prison term.

As Mr. Arya noted in his speech in the House of Commons on second reading, that’s not a mandatory minimum. That is important, namely that this is not setting forth a mandatory minimum sentence. Nonetheless, it is concerning what we’re going to do when we have these people being arrested for this.

The Chair: Wrap it up there. Sorry, but we will move to Mr. Trudell.

William Trudell, Chair, Canadian Council of Criminal Defence Lawyers: Thank you very much, chair. It’s a pleasure and an honour to be here once again. I have been here so many times I kind of feel like a member of the family. So before I get sent to my room, I want to say a couple of things.

First, for the record, on behalf of the Canadian Council of Criminal Defence Lawyers and myself, personally, I want to congratulate this committee on the Delaying Justice is Denying Justice report that came out yesterday. It is a remarkable report; very broad, very thorough, and covers all the bases. I wish it was called “the criminal justice system and delay” as a subheading. The work is remarkable reinvention, so I want to commend the committee. I hope that it’s not sold on the basis of thousands of cases are going to fall off the cliff if we don’t do something because I think it’s the first time that such a broad approach has been taken, breaking down the silos of criminal justice.

Having said that, in looking at Bill C-305 now, it’s almost like a different committee would be considering passing this bill because it’s a silo bill. With the greatest of respect to the honourable member — and I have already apologized in advance — it’s our respectful submission that this bill is unnecessary. At the risk of never being invited here again, I will say that the Criminal Code is not for social engineering. A Criminal Code cannot be used for political statements. Your report talks about restraint and discretion. It talks about too much coming into the system. I reflect what Rebecca said. This bill is a way to arrest and punish for something already covered in the Criminal Code under section 718. It’s an aggravating factor in sentencing that a crime is racially bias or from hate.

I will leave you with this thought. We all sort of want to get along in this country, but sometimes protest is good. Most protests involve bias, prejudice; maybe even some hate. The irony of what is in Bill C-305 is that it is against some of the advancements that have already been made by homosexuals and by women, because those advancements come from protests. I read some of the reports about the bill in the last day. I hope you don’t fast-track this. I hope you take the time to look at it. I know summer is coming, but this is really important to look at the big picture.

Those are my opening comments. I’m happy to try and help, if I am asked any questions. I urge you to be careful. I’m prepared to go to my room now if that’s the order.

The Chair: Thank you and thank you for your kind comments about our report.

Senator McIntyre: Well thank you, Mr. Arya for sponsoring this bill. Thank you to all the participants. Under this bill, the Crown has a choice. It can proceed either summarily or by indictment. Mr. Arya, I note that under the code, if the Crown proceeds by indictment, the maximum penalty is a term of imprisonment of 10 years. If the Crown proceeds summarily, it’s 18 months, which is stiff. Then again, as you have indicated in the house, the bill does not call for a mandatory minimum punishment. Why did you decide to keep the current punishment?

Mr. Arya: I did not consider that part of the criminal subsection at all because I knew what was considered in the previous motion where it legislated 18 months and 10 years. It shows that it is a major deterrent. It’s not just symbolic, but also a major deterrent against hate-based crimes. Agreed with that so that was why I did not look at or touch that particular section.

Senator McIntyre: Mr. Trudell, you can comment on this if you want to do so. It has to do with the choice. Can you comment on the way the choice is made? Would it depend on the value of the damage to the property or on the value of the property itself?

Mr. Trudell: Well, you start with the value of the property and then you look at the damage in terms of the code. I think the decision would be made on the basis of the Crown exercising discretion. I’m not sure if you heard this from Crown counsel, but it puts them in a very difficult position.

It’s not what happens at the end. It’s not the punishment, really. It’s the arrest; it’s the stigma; it’s the charge. Regarding sending someone to jail, no one is going to jail unless the court decides that that’s the only result.

What happens is someone is going to be arrested. They will probably have a criminal record. They will have a stigma. You have to look at just the fact that it’s coming into the system. Isn’t there a better way than to deal with social issues other than charging with a criminal offence? That’s the position I would take. It leaves a lot of room for discretion. It leaves a lot of room for pressure. Obviously, in a climate where there is a lot of hate crime, the pressure on the Crown counsel may very well be to go by indictment. But that doesn’t solve the bigger issue. I don’t know whether that helps.

Senator Pratte: I am not a lawyer, so forgive my ignorance here. I’m wondering how this will work because the bill proposes to include a large number of places and objects. Of course, all those places and objects will be linked to social groups, ethnic groups, or religious groups, but there will be different kinds of links or attachments.  A place can be used regularly by an ethnic or religious or cultural group. A place can be used sometimes. There can be a very profound attachment to a place, and then there can be some attachment. So it’s not the same thing. So how will that work in law, whether at the sentencing level or when the Crown decides to prosecute? How will that difference be made? Is it the same thing when someone destroys a religious object or four hockey sticks at an arena that belong to an ethnic group or a cultural group? It’s not the same thing. How will this work?

Mr. Arya: How the prosecutor can start a crime under this section, I don’t know, but I’m looking at it from the impact that these hate crimes have on the community, whether it’s a place of worship, a church, synagogue, mosque, or temple, or a community centre. The impact is the same. That is sending a message; it’s a message crime. It’s sending a message that your particular group is not desired here. So it does not matter whether it is a school or a community centre or a sports arena or a church or a mosque.

Ms. Bromwich: If I can give a lawyer’s answer, from a technical perspective — and Mr. Trudel can assist me there as well — with respect to the elements of the offence, it would be on the Crown to prove the elements of the offence. So it would be on a case-by-case basis that they would have to establish that this particular venue, at that particular time, fell within the category that was protected. So it does place a burden on the Crown, at least in the beginning, to establish which spaces, at what times, would be included.

Senator Pratte: Yes.

Mr. Trudell: It adds to the Jordan problem that we are all concerned about. It is going to add layers of prosecution, interpretations, Charter challenges. We all, in this room and in this country, are appalled when there is racial hate, bias, prejudice. That is not the country we are in. But you don’t solve it by the breadth of this legislation. It’s too wide. It’s too vague.

So that’s why I suggest that there are better ways to deal with social issues like this. Just having this discussion that is public sends a message out. So I see a real problem in focusing and prosecuting these offenses.

Senator Batters: Mr. Arya, just in looking at the types of locations that this bill would expand the definition of property to, right now it’s just restricted to places that are primarily used for religious worship. It details those. But this would expand it to buildings or structures that are primarily used by an identifiable group as an educational institution — it specifies that that would include a school, daycare centre, college or university or object associated with those things — those used by an identifiable group for administrative, social, cultural or sports activities, or events, including a town hall, community centre, playground or arena or the things associated with that, and those used by an identifiable group as a residence for seniors or an object associated with that residence, located on those grounds, and that type of thing.

So expanding it that broadly, that wide of a definition, what is the purpose? Frankly, I’m having trouble conceiving of a place that would not be included with that broad of a definition?

Mr. Arya: As I mentioned earlier, it is the impact on the community. If there is vandalism against a place of worship and vandalism against, say, a Jewish Community Centre or a Catholic school, the impact on the community is the same.

Ms. Bromwich: Just to supplement that, if we are to meaningfully protect LGBT people or disabled people, then places of worship are not the places that they will be found at, that they will be associated with. I think it’s sort of archaic to be solely protecting places of worship when these communities, these marginalized and vulnerable communities, are to be found elsewhere.

Senator Batters: Mr. Trudell, what is your comment on expanding it to that broad of a definition?

Mr. Trudell: The breadth is unbelievably wide. We can’t forget about subsection (c) of 430(1,) “obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property . . . .” Let me give you an example. Let’s just say that I don’t agree with Trinity Western’s policy, and I decide to stand at the doorway and interfere with the entrance to that university on the basis of their discrimination. I am caught under this section. But if Rebecca defends me in court, she is going to say, “He had a right. He had a right to protest. This is free speech.” Or I’m standing at the Catholic church on Sunday morning, and I don’t like the sermon on the basis of how those priests have dealt with child molestation issues, okay? It’s prejudice; it’s bias. I can be caught. That’s not what we’re trying to do here. So the bill has to be focused if it’s going to be necessary, and I guess the point is it’s not necessary.

Senator Batters: I have another question if I have time or second round if I don’t.

The Chair: Mr. Arya, do you want to very briefly respond?

Mr. Arya: Very briefly. In my original bill, I had covered all schools, all community centres. The Standing Committee on Justice and Human Rights, on the House of Commons side, did look into it and reduced the scope and adjusted this whole breadth issue.

Senator Batters: That’s a reduction in scope?

Mr. Arya: Yes, ma’am.

(French follows – Sen. Dupuis — Monsieur le deputé, est-ce qu’il serait)

(après anglais — M. Arya: Yes.)

La sénatrice Dupuis: Est-ce possible de répéter l’explication? Vous venez de donner une information que je ne suis pas certaine qu’on a tous comprise. Vous avez donné une indication sur le Comité permanent de la justice et des droits de la personne de la Chambre des communes, qui aurait réduit la portée de votre projet de loi?

(anglais suit — Mr. Arya: No. To clarify, in my original bill…)

(following French – Sen. Dupuis — reduit la portée de votre projet de loi)

Mr. Arya: To clarify, in my original bill, when I expanded the list of the buildings and the properties that are covered, I included all schools, all community centres, all sports arenas, whereas the Standing Committee on Justice and Human Rights said, “That is too broad,” and they adjusted it. They limited it to those schools and community centres that are predominantly used by these identifiable groups.

Ms. Bromwich: If I can add as well, the bill expands the scope of spaces to which the protection would be applied. It does not expand the definition of mischief. I would respectfully disagree with Mr. Trudel that a protest would be included in mischief. There is well-developed jurisprudence on what constitutes mischief under the Criminal Code, under section 430 and elsewhere. I would respectfully submit that mischief is not the same as protest. Indeed, there are a lot of faith communities that have articulated support for this bill, including my own, the Presbyterian Church in Canada. There are many churches and faith communities, Jewish faith communities, Muslim faith communities, who have articulated support for this bill.

(French follows – Sen. Dupuis — Donc ma question)

(après anglais — Mme Bromwich: … support for this bill.)

La sénatrice Dupuis: J’essaie de comprendre la logique de votre projet de loi par rapport à ce qui existe déjà dans le droit criminel. À partir de la définition générale de méfait à 430(1), on a ajouté un certain nombre de catégories de méfait à l’égard: premièrement, de données informatiques; deuxièmement, de culte religieux; troisièmement, les monuments commémoratifs de guerre; et ensuite, les biens culturels.

Pour ce qui est du culte religieux, on a voulu, semble-t-il, préciser que s’il y a un méfait à l’égard d’un bâtiment ou d’une structure servant principalement au culte religieux, on est passible soit d’une accusation ou d’une infraction. Si je comprends bien ce que vous dites ici, c’est qu’on sort de l’esprit de culte religieux et l’on élargit la portée de cet article en précisant que vous gardez l’élément de structure servant principalement au culte religieux, et vous ajoutez l’établissement d’enseignement et de service à l’enfance.  Parce que les garderies, c’est pas un établissement d’enseignement, en tout cas pas reconnu jusqu’ici comme un établissement d’enseignement — et vous ajoutez des structures servant à des activités d’un caractère tout autre, donc administratif, social, culturel ou sportif, et, finalement, la résidence pour personnes âgées.

J’essaie de comprendre ce qui a motivé non seulement l’ajout de ces différentes catégories, mais aussi le choix que vous avez fait, par exemple, dans le dernier cas, d’une résidence pour personnes âgées.

(anglais suit – M. Arya : As I mentioned, I looked at it from the angle…)

(Following French – Senator Dupuis – . . . le dernier cas, d’une résidence pour personnes âgées.)

Mr. Arya: As I mentioned, I look at it from the angle of the impact these crimes hate-based crimes have on the community. When the hate crimes are committed on the mosque or a synagogue the impact on the community is the same if the same crime is committed on the Catholic school or the Jewish community centre. That is the approach I have taken because at the end, as I said earlier, a message crime is sending a message to the members of a certain group that they are despised, devalued or unwelcome in the particular neighbourhood, community school or workplace. The impact is the same so I think all these things have to be covered.

Senator Joyal: Thank you, Mr. Trudell, for your comment. As you know, this committee laboured for almost a year and a half on this issue and I was very proud to be associated with it and I thank you for your comment.

I want to come back on the definition of property in the proposed bill because, of course, it is a different definition than there is in section 2 of the code, whereby property is defined more as movable than land or anything built on land. It is a different concept of property. Then there is also an enumerated list of sites. I would say there is a distinction that, in my opinion, is not well-established between what is private and what is public. Let me give you an example: A bus stop shelter whereby somebody would paint graffiti or glue a poster of some sort would not be covered by that, and it could be damaging to any of the groups identified there.

You identify a shelter for senior residents, but what about a shelter for women or a shelter for homeless that happened to be in downtown areas that could also be the site to spread heinous language or speeches or any kind of poster or whatever?

It seems to me that when I read the list, as much as any of us understands a place of worship, it’s a general term, but when you specify something like hate and you attach it only to seniors and when you don’t take into account the other sites that could be the object of spreading the heinous message or destruction that you want to prevent, this doesn’t strike me as underpinning the sites that you have been identifying in (a), (b), (c) and (d). Could you comment more about the structure of your reflections so we try to really understand what you tried to achieve?

Mr. Arya: The bill before you is as amended by the Standing Committee on Justice and Human Rights. In my original bill I expanded the list of the crime motivated by hate based on religion, race, colour, national or ethnic origin to include gender identity, sexual orientation, and the committee, after hearing from various witnesses, included other categories like age, sex, mental or physical disability, which I also agree and accept.

Senator Joyal: I repeat my question. What led you to distinguish and identify the sites that you have included in the bill?

Mr. Arya: On the list of structures I was very clear from the beginning. I think the impact on the community when a hate crime is against a place of worship is the same if the same hate crime is carried out against a building used by a particular ethnic group or religious group. That was the motivation.

Senator Joyal: Let me give you the example I just used. A mosque, a temple, a school might be close to a sheltered bus stop. There are many now in town because we favour public transit and whatnot. I feel there is something that doesn’t seem to be complete in my mind. If we want to protect a school or a mosque and there is a bus stop in front of a mosque or a school, that bus stop shelter will not be covered by the bill. And that bus stop shelter could be used by all those who go to that temple or all that identified group that would go to that school and so on; do you understand my concern?

Mr. Arya: With my limited non-legal knowledge I can say that the bus shelter will not be covered under this criminal subsection.

Senator Pate: Thank you very much. As we discussed when we met about this, and my reason for not being willing to sponsor this bill, was not that I don’t support the intent and very much the direction in which you’re trying to go in terms of supporting groups from experiencing hate crimes or any kind of damage of this sort, but as has been already touched on there are areas that aren’t covered like shelters for battered women and I’m concerned about the potential for expanding the scope of those who can be criminalized and imprisoned as a result of this bill.

I’m interested in hearing more from Mr. Trudell about the manner in which protests, particularly in light of what has just happened with Beatrice Hunter as a land protector and how protest has been used to criminalize individuals. Can you expand on that? That was not something I fully explored but I am interested in the implications you see.

Mr. Trudell: I’ll try to expand on it but in an inarticulate way.

Let me go back to just say one thing here: We all agree that it’s a given that hate crime is not acceptable. Section 718.2 of the Criminal Code says that evidence that an offence was motivated by bias, prejudice or hate-based race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor is an aggravating factor already existing in the Criminal Code. Forget about the bus shelter, it’s there and it’s covered.

I said in the beginning some of the great advances that have been made were made as a result of protests that people didn’t like at the time, sponsored by anger, sponsored by bias, sponsored by prejudice, even hate for a while. So there has to be a balance here. What we’re doing here is taking a problem of the community in the community and taking it over to the Criminal Code, which is already too fat. And when you take it out of the community and say, okay, the criminal justice system will look at it, then the community is no longer involved.  So I see a real problem with prosecutions of people who are protesting. Maybe it’s antagonizing at the time they are protesting but if you look down the road five years from then, it may be for a legitimate purpose. I see that other than the people who are motivated by hate, who are caught already, it’s too broad and there will be considerable unnecessary debates in relation to these charges and the courts.

We could sit here, if you had the time to look at this bill, and everyone at this table has experience in their community with protests and experiences of wanting to get out on the street I want to demonstrate. Are we caught by this section if it’s misapplied?

So when we’re looking at legislation in this country we’re saying is there a need, is there a void? It’s not whether there is a social comment and re-engineering that we need to talk about. If you take it out the community and deal with the community justice system, the community doesn’t deal with it. So Senator Joyal’s bus shelter is a community problem. It will not be solved by bringing it into the Criminal Code. It’s an inarticulate answer to the question.

Ms. Bromwich: One option can be to remove section 430 from the Criminal Code if it’s already covered by section 718 with respect to sentencing. And if we think section 430 should be in the Criminal Code, if there are spaces that should be protected, then what is the rationale for simply keeping places of worship as the only spaces protected? It’s another way of looking at the question.

I would submit there is a reason to protect certain spaces that are closely associated with certain people who are marginalized or vulnerable that have particular emotion resonance, and that can be addressed on a case-by-case basis with respect to the particular places. I would also reiterate that it would be interesting to look at the case law as to the difference between protest and mischief and how it is a misuse of the case law on mischief to address protest inappropriately with it, and that would not be the intent or necessary result of this legislative proposal.

Senator Omidvar: I found that interesting. There is a difference between protest and mischief; I get that.

My question is to Mr. Arya. You said earlier on in your testimony that this bill would be a major deterrent on crimes of mischief such as this. Is that your opinion or is that based in evidence? Does such a law exist in other places and if so, what is the outcome? Can you fill us in with some of the facts?

Mr. Arya: There is a great deal of evidence of what we are speaking about. There is a study by the Department of Justice. I don’t offhand recall the exact title, and there are other publications. Maybe at a later date I can provide the committee with those reference materials.

Senator Omidvar: So this is grounded in evidence.

Mr. Arya: Yes.

Senator Omidvar: If you have a law like this, crimes of mischief will be reduced?

Mr. Arya: Absolutely.

Senator Omidvar: I am not a lawyer, but I understand that these small differences have great meaning and weight.

The text of Bill C-305, which covers the grounds colour, race, religion, national, ethnic origin does not match up completely with the Criminal Code and sentencing principles in 718.2. For example, language is not included. Is there a reason why this is expressed differently? Will it have an impact on the administration of the law?

Mr. Arya: You will have to repeat that.

Senator Omidvar: Your bill, line 10, says commission of the mischief is motivated by bias, prejudice or hate based on religion, race, colour, national or ethnic origin, age, sex, sexual orientation or mental and physical disability.

The sentencing principles in section 718.2 of the Criminal Code include language, and you don’t have language in yours. I’m wondering, is that an accident? Was there deliberate thinking?

Mr. Arya: I didn’t look at that section 718 you are talking about.

Senator Gold: Thank you, and I would ask for your indulgence. I am the sponsor the bill in the Senate and a lawyer, and I’m pleased to sponsor it. I didn’t realize I might have been able to be a permanent member or a witness in that. I will frame these in the form of questions, but I confess they are in some sense answers to some of the questions that have been asked.

It’s true, Mr. Trudell, that discrimination and racism is a social problem but with the actual vandalism against a legal clinic serving the Black community or the LGBT community or firebombing a school, these are crimes and the proper domain of the Criminal Code. And just because we can’t solve the underlying problem, it doesn’t mean the law should not properly take account of these actual crimes. And we are talking about crimes like that not protests, with all respect.

With respect to the legitimate concerns about overpopulation of prisons, is it not the case that the current section of the Criminal Code has the same penalty structure, that this bill would not increase the possibility or the sentencing provisions for crimes currently only against places of worship? There is no change there for the current law and we are not here to revise the entire Criminal Code or sentencing philosophy, perhaps we should, but for the moment this simply leaves it as it is. That’s correct, I believe, is it not?

But with regard to Mr. Trudell, you are right that sentencing takes into account hate-based as an aggravated offence, but am I right in thinking — and I said this in the chamber so I hope I’m right — that even if taken into account, a crime against the community centre next to the synagogue or the church or the temple by the same person motivated by the same reason, which is to terrorize that community, would nonetheless not be subject to the same potential punishment even when the hate is taken into account? Because there is a different penalty structure for hate-based crimes against churches as there are against mischief motivated by hate generally; so I think one the rationales for this, one the needs is to fill that gap.

If we believe that hate-based crime against a Black community centre or indigenous friendship circle is no different in terms of the punishment it deserves than against the church or temple, then the potential punishment should be the same, all other things being equal and yes, we should probably be concerned about abuses by the Crown and discretion. But that’s the system we have to trust to some degree or other.

The scope of the bill was narrowed by the committee because it’s clear that this is targeting places that are primarily used by these groups. And yes, to be sure, a swastika on a bus shelter outside the Jewish senior’s centre is hurtful to somebody who sees it, but there is a difference, Senator Joyal. This bill protects places where communities gather — Chinese elder centres, Jewish community centres, seniors homes — to be taken care of and be safe. And when those places are targeted, as opposed to somebody ranting in Hyde Park and screaming racist slogans, that is assault on their safety and security. It’s a distinction with a difference even though it is — not to condone swastikas on bus shelters and other hate crimes.

Finally, to Senator Dupuis, why seniors centres? I think we are all getting older but there is a certainly vulnerability to people that are now in places like that, and unfortunately and sadly they are targeted.  They are.

You’re right. When I say that the law may be under-inclusive in some respects, I would readily acknowledge that. But I don’t think it’s over-inclusive, I think it does capture, however imperfectly, places and people that are every bit as worthy of protection of law. Whether it is a deterrent or not, it is certainly a symbolic message.

The Chair: I afforded you some extra time, but I want to give our witnesses a brief opportunity to respond. We are running the clock out shortly. Does anyone wish to respond?

Mr. Trudell: Senator Gold, I respect the background information you have presented for sponsoring this bill, as I respect the honourable member, but I haven’t heard where the gap is. The gap is covered under subsection 718(2), an aggravating factor. So if a kid does graffiti on a bus stop and it’s not directed at the Jewish centre next door, that’s graffiti, that’s mischief. But if there is evidence that it was directed at those people who live next door, the Crown will stand up, cite 718, they will prove it and it will be an aggravating factor.

We don’t live in a vacuum. If you find a legislative gap, as opposed to making the Criminal Code heavier for a social comment, then fill it, but there is no gap, with the greatest of respect.

Ms. Bromwich: Yes, I agree with Senator Pate that the bill, as drafted, does not include everything and that it should. I’m concerned, as I said before, about the increase in incarceration rates that is ongoing. This will not solve.

This bill is a step in the right direction. It is under-inclusive currently, because it only extends to places of worship. The inclusion of LGBT individuals, disabled persons and of groups that are not yet protected is a step in the right direction. Other things on the legislative agenda should move forward and do more.

Senator Batters: Mr. Arya, given what Mr. Trudell has said here about section 718 and the fact that all of these things dealing with these different prohibited grounds in the mischief category are already aggravating circumstances in the Criminal Code, what specific example do you have of something that has happened that would not have been caught by section 718 and that would be caught by provisions of your bill?

Mr. Arya: The attacks in Ottawa last year on the mosque, the community centres, the synagogues, et cetera, might be covered, but purpose of this subsection, when first introduced, is symbolic and a major deterrent. These people are vulnerable, and they need special attention. Any crimes against them should be taken at different angle altogether.

Senator Batters: But that would be covered because that was crime committed —

Ms. Bromwich: The community centre would not be covered.

Senator Batters: But the crime itself was covered, because it was motivated by biased prejudice based on religion, wherever it occurred; is that not correct?

Mr. Arya: You are suggesting that the impacts of the subsection need not be there?

Senator Batters: I’m asking what the purpose is.

Mr. Arya: I’m not introducing a new subsection.

Senator Batters: You are.

Mr. Arya: I’m amending parts of that subsection to expand the list. That’s it. I’m not changing the subsection or introducing a new subsection.

Senator Batters: You are vastly expanding the number of different properties included.

Mr. Arya: The properties, yes. Still, the crime is the same.

Senator Batters: The crime is the same, so I’m asking how that particular crime you just spoke of would not be included under 718, which would provide a aggravating circumstance to a judge. Many would argue that’s the more effective —

Mr. Arya: The rationale for the existence of this subsection is correct then and it is correct even now.

Senator Batters: Mr. Trudell, do you have a comment on that?

Mr. Trudell: I would respectfully disagree with Ms. Bromwich. The community centre is covered.

(French follows — Sen. Dupuis: Ma première question . . .)

(après anglais — Mr. Trudell: centre is covered.)

La sénatrice Dupuis: Ma première question est que dans le cas d’un appel au viol des femmes sur un mur d’université par rapport à un mur de refuge pour femmes battues ou à un mur de clinique d’avortement, serait-ce couvert par votre projet de loi?

(anglais suit — M. Arya: I don’t know.)

(Following French — Sen. Dupuis — . . . par votre projet de loi?)

Mr. Arya: I don’t know.

(French follows — Sen. Dupuis: Merci. Monsieur Trudell, vous . . .)

(après anglais — M. Arya: I don’t know.).

La sénatrice Dupuis: Merci. Monsieur Trudell, vous avez parlé de l’articulation entre 430 et 430(4.1). Qu’est-ce qui arrive d’un crime non motivé par un préjugé ou la haine fondée sur la religion, la race, la couleur ou l’origine ethnique à l’égard d’un bâtiment? Est-ce couvert par 430(1)? Ce que je comprends de 430(4.1), donc le méfait pour culte religieux, il faut que ce soit motivé par des préjugés ou de la haine fondée sur la religion, la race, la couleur, l’origine nationale ou ethnique. Donc, il y a un élément supplémentaire de preuve à faire que le crime a été motivé par des préjugés ou de la haine. Si je pense à un crime dans le même contexte que 4.1, donc une structure ou un bâtiment principalement servant de lieu de culte religieux, mais qui ne serait pas fondé sur la haine ou des préjugés fondés sur la race, la religion et cetera.

(anglais suit — M. Trudell : Damage to public…)

(Following French — Sen. Dupuis — la religion, et cetera.)

Mr. Trudell: Damage to public or private property is a criminal offence. If I write some slogan on an abortion clinic, that may be mischief. If I write the slogan and it says “you should close this place,” it’s graffiti on the wall, it’s mischief. I have no right to do it. If I write “You should close this place because we’re going to kill you” or “you’re killing babies and this is wrong,” et cetera, et cetera, then you might look to section 718 as an aggravating factor, as covered.

Senator McIntyre: Mr. Trudell, you have raised the issue of section 718, the aggravating factor. I want to raise another issue with you. In Part XI of the code, mischief is subdivided into different categories, such as mischief in relation to data, mischief relating to religious property, mischief relating to war memorials, mischief related to cultural property and mischief in relation to computer data.

This bill modifies mischief related to religious property. In other words, it widens the situation to cover areas that are primarily used for religious worship. That said, don’t you think that this legislation is necessary? It appears to me that the situation raised by the sponsor of the bill is not touched upon in the code.

Mr. Trudell: No, I don’t agree. The categories of mischief set out in the Criminal Code are not — we are talking about the sentencing and the accountability for race-based crimes. That’s what 718 does. It makes it an aggravating factor.

And the bill is too broad. It’s not just a religious place like a mosque. It’s a place in the field where there may be a ceremony. It’s too broad. If there were a gap, sir, then you should fill it, but those examples in the Criminal Code are supplemented specifically by subsection 718.1 or .2 — whatever it is — that talks about the very problem that these honourable members are trying to address in the bill.

Senator Joyal: Would it not have been better to take the words of Senator Gold: that in fact, instead of identifying sites that we identify the criteria of where people meet or gather in the course of their regular activities. Would it not have been better to have it as an objective criteria rather than starting identifying this place, or that place? Because in my opinion, there will be another place where we have lost, we didn’t think and what not. That’s my question.

Mr. Trudell: Clarity is important in every piece of legislation. If it’s too broad, then the courts aren’t going to be able to deal with it. It will add to delay. If you have a focused approach and the legislation is clear, then that’s much more helpful if the need is there to fill it. Look all these smart people around the table trying to figure out what it covers and what it doesn’t cover. What will happen in a courtroom?

Senator Joyal: Thank you.

The Chair: Thank you, witnesses, for helping with the testimony. I appreciate your appearance and support for the committee’s consideration.

Now joining us for our second hour, I make a mishmash of some of these names. I apologize ahead of time. Richard Marceau is General Counsel and Senior Political Advisor for the Centre for Israel and Jewish Affairs. Mukhbir Singh is President of the World Sikh Organization of Canada, and Imtiaz Ahmed is the Imam for the Ahmadiyya Muslim Community. Thank you all for joining us. Mr. Marceau, perhaps you can begin.

(French follows – Monsieur Marceau — Merci, monsieur le president.).

(après anglais – le président: …move across the table.)

Richard Marceau, avocat-conseil et conseiller politique principal, Centre consultatif des relations juives et israéliennes: Je suis bien content d’être ici comme représentant du CIJA. Je commencerai par féliciter le député Chandra Arya d’avoir déposé le projet de loi C-305. Je tiens à remercier tous les députés de la Chambre des communes d’avoir appuyé le projet de loi de façon unanime. Je veux aussi remercier le sénateur Gold d’avoir bien voulu parainer ce projet de loi Sénat.

Ce projet de loi est à l’agenda de la communauté juive depuis très longtemps. En fait, il pourrait être intéressant de faire la genèse du projet de loi C-305 sans enlever quoi que ce soit au mérite de M. Arya, bien au contraire.

Alors que j’occupais un poste de député à l’autre endroit, la communauté juive était venue me voir pour me parler de la nécessité d’étendre les protections qui étaient prévues pour les maisons de culte et cimetières, et les étendre aux centres communautaires et aux écoles. J’étais convaincu, à l’époque, du bien-fondé de cette initiative. J’avais donc préparé un projet de loi qui devait être déposé. Toutefois, la politique étant ce qu’elle est, j’ai perdu mon élection le 23 janvier 2006.

Par contre, le projet de loi a été repris par la suite, sous la 39e législature, par la député Carole Freeman, puis, sous la 40e législature par Marlene Jennings, et enfin, lors de la 41e législature par Marc Garneau. À chaque fois, le projet de loi a joui d’un appui très large de toutes les formations politiques.

(anglais suit – Mr. Marceau cont’g: The objective of the bill…)

(following French – Mr Marceau — … formations politiques.).

I apologize to the translators: I have given my notes but because of the previous discussions, I might change some of the things I was going to say.

The objective of the bill is straight forward. It’s to extend the protection already given to houses of worship and cemeteries to other buildings and structures that are primarily used — so not a shack in the field, like Mr. Trudell said, in the end — by an identifiable group.  Why do you ask? Because schools and community centres are as central for community life as houses of worship and cemeteries, and as often as houses of worship and cemeteries, they are targeted by people who hate identifiable groups.

The Jewish community has often been the target of vandalism. Jewish Canadians are victimized by hate-motivated crime at a higher rate than any other identifiable group. We saw two days ago in the Stats Canada report that there were 55 incidents per 100,000 Jewish Canadians compared to 15 per cent per 100,000 by Muslim Canadians and 0.4 incidents per 100,000 Catholic Canadians. We are often the target of hate-motivated crime.

Stats Canada data also shows that roughly three quarters of these crimes fall under the legal category of mischief, vandalism and destruction of property. Vandalism to community centres and schools are more than attacks on buildings. They reverberate throughout a community and throughout a city. It touches everybody that belongs to that community, whether one goes to that place or not. This is why it must be seriously punished.

As I said, the bill extends the protection by defining the word “property” for the purposes of clause 4.101 as not only including houses of worship and cemeteries but also:

a building or structure, or part of a building or structure, that is primarily used by an identifiable group . . .

And includes educational, institution or buildings of structure used by administrative, social, cultural, sports activities, events or as a residence for seniors.

(French follows – Mr. Marceau – Sénateur Joyal, je sais que vous . . .)

(après anglais — M. Marceau cont.: …as a residence for seniors.)

Sénateur Joyal, je sais que vous avez mentionné la définition du terme «propriété» ou du terme «bien». Lorsqu’on se penche sur ces définitions, cela n’inclut pas seulement les biens meubles, mais cela inclut aussi les biens et immeubles. Les définitions ne sont pas contraires, d’autant plus que la définition du terme «propriété» ou du terme «bien», dans le cadre du projet de loi C-305, spécifie «pour l’application du paragraphe 4.1». Ce n’est pas rare dans une loi d’avoir une définition différente pour l’application d’une section d’un article en particulier.

(anglais suit — Mr. Marceau cont.: The fact that identified…)

(following French – Mr. Marceau – . . . d’une section d’un article en particulier.).

The fact that “identifiable group” is mentioned and it was added by the House of Commons Justice Committee ensures that more than religious groups are protected, and it is something that the Jewish community strongly supports.

I just want to add by saying this. I have so many more things to say.

The Chair: Very briefly.

Mr. Marceau: Hate crime is on the rise. It is one way, not the panacea, it’s not going to change or solve every problem, but it’s one strong signal that the legislator can take to tell people that hate crime is unacceptable in Canada, and the places that groups frequent and use primarily should be protected. Thank you very much.

Mukhbir Singh, President, World Sikh Organization of Canada: On behalf of the World Sikh Organization of Canada, I am pleased to have this opportunity to offer the committee our organization’s perspective on Bill C-305.

Established in 1984, the World Sikh Organization of Canada is a national non-profit organization with a mandate to promote and protect the interests of Canadian Sikhs as well as to promote and advocate for the protection of human rights of all Canadians, individuals, irrespective of race, religion, gender, ethnicity and social and economic status.

Our organization is governed by a 31-member board that includes representatives from across Canada. As a national organization representing the interests of Canadian Sikhs, we’re pleased to be able to provide the perspective of our community with respect to hate crimes against community institutions.

Whenever even a small number of Sikhs live together in a community, one of the first steps they take is to found a gurdwara. The gurdwara serves as a place of worship, community centre and place of education. There have also been calls to schools or Sikh schools for children that have been founded — largely in Ontario, Alberta and British Columbia.

From time to time, Canadian Sikhs have experienced racist vandalism at gurdwaras as well as at Sikh schools. As recently as December 2016, a gurdwara in Calgary was vandalized with swastikas. Many incidents at gurdwaras go unreported as community members do not want to unnecessarily publicize such events.

In July 2012, a Khalsa school in Brampton reported being vandalized with the letters KKK and swastikas. These events are disturbing and traumatizing to the community. Steps are necessary to address this issue.

The WSO is supportive of Bill C-305. We believe that extending protection from just religious structures to all Sikh community places of gathering, schools and senior centres will provide an added measure of protection and deterrence for those considering such hate-based crimes.

It makes sense that these buildings are protected in addition to strictly just places of worship. Furthermore, we are also supportive of the bill being inclusive in its approach to the LGBTQ community and other vulnerable groups. Broad protections for vulnerable groups as well as for facilities and buildings used primarily by them is important for the successful deterrence and prosecutions when crimes do take place. We would encourage the Senate to quickly pass this bill without delay.

Imtiaz Ahmed, Imam, Ahmadiyya Muslim Community: Good morning, my name is Imtiaz Ahmed. I am an Imam for the Ahmadiyya Muslim Jama’at in Canada and currently serving as the Ottawa Imam.

I would like to thank the committee for providing our community an opportunity to speak on this important topic. Private member bills do not always make it this far, so my first comment would be that we are appreciative of the support this bill has received thus far.

In November 2016, the Ahmadiyya Muslim community joined with more than 20 faith and ethnic organizations across a range of communities, including Jewish, Christian, Sikh and other community representatives, to write to MP Chandra Arya in support of Bill C-305. A similar array of organizations wrote to every senator this month to urge the passage of Bill C-305. This issue affects all of us and has united our diverse communities in this common cause.

Canada is, in my opinion, the greatest country in the world. This country and people like you continue to make improvements so that we can be a model for the world on how different peoples from different nations, tribes, ethnicities, races and religions can come together and live harmoniously with one another.

Unfortunately, we also live in a time that has allowed the ugly head of bigotry and hate to have a stronger voice than even in the recent time. As such, the bill helps to protect those sections of our society that can be vulnerable to hate and hate crimes. Our community wishes that we do not even have to think of amendments such as Bill C-305. However, current realities dictate to us that we must.

You will be familiar with the StatsCan latest report on hate crime stats recently released. These are alarming trends that give the need for the full scope of Bill C-305.

To summarize, this week’s StatsCan report noted a number of concerning trends: An overall increase of 5 per cent nationally in police-reported hate crimes in 2015. When it comes to hate incidents, targeting victims based on religion, in 2015 there were 178 incidents targeting Jewish Canadians; 159 incidents targeting Muslim Canadians; and 55 incidents targeting Catholic Canadians.

When it comes to trajectory, the data showed hate crimes targeting the Muslim population increased from 99 incidents in 2014 to 159 incidents in 2015, an increase of 61 per cent.

Many of these hate crimes target communal institutions, which are often highly visible and serve as a magnet for hate-fuelled individuals. Therefore, the need for Bill C-305 to expand the current scope of hate crimes directed against certain historically marginalized groups is clearly evident. Bill C-305 would provide additional tools to our criminal justice system to protect Canadians from hate-motivated crime.

We are encouraged that the scope of hate crimes against places of worship, such as temples, mosques, gurdwaras, synagogues, and churches, will expand to include buildings primarily used as an educational institution or for administrative, social, cultural or event, or as a residence for seniors, and cemeteries.

Just in Ottawa, in the span of six months, the Ahmadiyya Muslim Community Centre was attacked twice. Therefore there is a need for this bill to be passed. I am confident that this committee will press forward and incorporate Bill C-305 into law.

In closing, hate-fuelled criminals do not distinguish between places of worship, community centres and schools. Neither should the law. Thank you for your time.

Senator McIntyre: Thank you, gentlemen, for your presentation. Obviously, there are serious consequences of hate-based crimes against property, one of them being the economic factor. That said, could you inform us about the economic burden your community has to bear, and the cost of these crimes to your community?

Mr. Marceau: I can answer that. I don’t know if you have had the chance to go to a synagogue during the high holidays, the three times a year when Jews go to synagogue, but it’s like going through the airport to take a flight. We have metal detectors that we have to rent. We have police officers that we have to pay for. Our buildings have to be better protected. The Jewish Community Centre in Ottawa has bullet-proof glass.

My organization, CIJA, has three people full time dealing with security. We have security audits throughout the community in Canada: schools, synagogues and community centres. That is one of the reasons why we have been pushing for better help from the government on the costs associated with that. The previous government created the security infrastructure program, a $5 million budget. The last budget doubled that amount to $10 million. It’s a significant amount of money that is spent by the community. It shows on school fees, private school fees, on synagogue fees and on community centre fees. It’s not only hypothetical.

My two sons work at the Jewish Community Centre here in Ottawa, and I have to think when they go there, are they safe? They work in the sports camp. Will they be attacked? Is there significant protection? There’s an economic impact, of course, that you mentioned. It’s real. There is also a psychological impact and an emotional impact of sending your kids, for example, to one of those places.

Mr. Ahmed: In the recent incidents in Ottawa at our community centre, certainly the cost is involved. First, there is the clean-up. If there are broken windows, that also has a financial toll on us. Then there is the installation of cameras. We had to install cameras all around the properties, and we had to make sure that it was up to standard to be able to catch the culprit. That cost involves security equipment. Other costs are also involved.

As my colleague here said, the psychological impact is far greater than the financial aspect.

Mr. Singh: In terms of personally having worked with community centres, I have chosen not to publicly disclose these types of hate crimes. They have had to update their security systems as well. Realistically, some of their systems were not able to pick up what was going on outside, because the resolution wasn’t strong enough. So they had to go and make additional lighting changes to surround the community centre. In terms of security costs, those are quite significant for Sikh community centres.

(French follows – Senator Dupuis: Ma question s’addresse …).

(après anglais – M. Singh : … for the community centers.)

La sénatrice Dupuis: Ma question s’adresse à chacun des trois témoins. La préoccupation à laquelle le projet de loi C-305 répond — puisque vous appuyez le projet de loi —, c’est que non seulement vous voulez que les lieux servant principalement au culte religieux soient couverts par le Code criminel, mais également les autres lieux où se retrouvent les gens pour un motif religieux, que ce soit une résidence pour personnes âgées, un centre communautaire ou un lieu où il y a une activité quelconque; est-ce que je comprends bien ce que vous recherchez?

(anglais suit – M. Singh : Yes, I think you covered it…)

(Following French — Senator Dupuis cont’g — ce que vous recherchez?)

Mr. Singh: Yes, I think you covered it. I think it made it very clear in terms of when individuals attack these religious centres, they don’t discriminate whether it’s a place of worship or a religion school or any other community centre.

(French follows — Mr. Marceau: Je suis d’accord avec …).

(après anglais – M. Singh : … other community centre.)

  1. Marceau: Je suis d’accord avec M. Singh, en effet. C’est le but du projet de loi. Les communautés juives ne se regroupent pas seulement dans les synagogues. Je pourrais même dire que les centres communautaires sont plus fréquentés que les synagogues. C’est souvent plus agréable de suivre un cours de poterie ou de faire une partie de basketball que de passer trois heures et demie un samedi matin dans une synagogue.

Un centre communautaire juif est autant identifié à la communauté, autant sinon plus utilisé qu’une synagogue par la communauté. On l’a vue à Ottawa l’hiver dernier, ou encore en 2004, lorsque l’école Talmud Torah de Montréal a été attaquée, ni l’une ni l’autre des attaques n’a eu lieu dans un établissement religieux en tant que tel. Il s’agissait dans les deux cas d’établissements fortement identifiés à la communauté juive.

(anglais suit – M. Ahmed : Usually in places of worship people go to pray…)

(following French – Mr. Marceau cont’g — à la communauté juive.).

Mr. Ahmed: Usually in places of worship, people go to pray. In synagogue a person would go to pray; it is the same thing for the gurdwara and the mosque, people would go to pray. That aspect is taken care of. But when we have other community events — and sometime we have these community events in our community centres — those places religious places should also be covered, in my opinion.

(French follows – Senator Joyal: Bienvenue, monsieur Marceau…).

(après anglais – M. Ahmed : … covered in my opinion.)

Le sénateur Joyal: Bienvenue, monsieur Marceau. N’aurait-il pas été plus simple — et j’ai posé la question aux témoins qui vous ont précédé également — de définir un critère plus large, qui aurait davantage couvert ce que j’appelle la mobilité de l’expression de la haine à l’égard de certains groupes? Si l’intervention a lieu sur un site en particulier, les personnes qui expriment ce genre de conviction vont se déplacer ailleurs et tenter d’identifier la communauté protégée là où elle va se retrouver.

N’aurait-il pas été plus simple, pour ce projet de loi, de déterminer le critère de la rencontre dans un lieu public ou accessible au public? Il me semble que cela aurait été une manière d’ajuster le projet de loi en évolution par rapport à ce que j’appelle la détermination de l’expression haineuse, qui va trouver d’autres façons de s’exprimer.

Comme vous le dites très bien, si vous installez des portiques de sécurité ou toutes sortes de mesures de sécurité, on l’a vu avec le terrorisme, ce n’est plus à l’intérieur des aéroports que cela se passe, c’est à l’extérieur, on loue un camion et on tente d’attraper des passants.

Si on s’appuie sur la manière dont ces personnes qui entretiennent ce genre de conviction vivent, l’option m’apparaît préférable de déterminer un critère objectif et un endroit objectif plutôt que de tenter d’identifier des endroits ou d’autres, laissant ainsi passer entre les trous des endroits qui ne seraient pas couverts.

  1. Marceau: Comme chaque projet de loi que vous étudiez à titre de législateurs, l’enjeu est d’atteindre l’équilibre. La première mouture du projet de loi a été considérée comme étant trop large et comme pouvant attraper dans son filet toutes sortes d’endroits.

Je me souviens de discussions que j’avais avec les députés à l’époque, de même qu’avec la bureaucratie, par rapport à la première mouture. Je peux vous donner l’exemple suivant : un groupe évangélique loue le Centre Bell pour une activité; est-ce que cela ne se retrouverait pas pris dans les mailles du projet de loi C-305 tel qu’il était formulé à l’époque?

Les députés se sont dit que c’était peut-être un peu trop large. Il est vrai qu’on a tendance quelquefois, à titre de législateurs, à oublier que les juges et les procureurs ont aussi une tête sur les épaules et qu’ils sont capables d’utiliser leur gros bon sens.

Ce sont donc les députés qui ont décidé de resserrer les critères et d’identifier les endroits, en utilisant notamment les mots «servant principalement». Ils se sont dit que, de cette façon, en identifiant un certain nombre d’endroits, mais aussi en rajoutant le critère de l’utilisation principale, tout cela ferait en sorte que les critiques de la sénatrice Batters, à savoir que la portée du projet de loi était trop large, pouvaient être calmées, du moins en partie.

Il y a en effet un danger en ce qui a trait à une façon de faire objective, car cela pourrait s’appliquer à peu près à tout et éliminerait la raison d’être non seulement du projet de loi C-305, mais la distinction entre un méfait général et un méfait pour des raisons particulières.

(anglais suit — Sen. Joyal: Any other comments from …)

(Following French — Mr. Marceau — pour des raisons particulières)

Senator Joyal: Any other comments from the other gentlemen?

Mr. Ahmed: I think I resonate with Richard. According to the report that was just recently released by StatsCan, there were 178 incidents reported against Jewish Canadians and 155 against Muslim Canadians, and there were also 55 against Catholic Canadians.

Many of these incidents are done on the community centres and community institutions. So that’s why it’s important to actually highlight the importance of including, apart from places of worship, the community centres and other places that are affiliated with religion, or any other group for that matter.

Senator Gold: In the previous panel, we heard testimony that this was not necessary because the sentencing provisions in the Criminal Code allow us to take the hate-based motivation into account. But can you please comment on my reading of the Criminal Code generally, and tell me if I’m wrong in this? As I read it, even if hate is taken into account as an aggravating factor, that is to say a hate-based crime against a community centre, currently not covered by the Criminal Code, as churches and synagogues are, even if it’s taken into account as a factor, the maximum that the perpetrator, if found guilty, could receive, on indictment, would be two years because that’s the maximum for mischief generally. Were the same crime to be committed against your establishment, a community centre, the maximum could be 10 years under the terms of the current law as it applies to religious institutions.

Am I right in thinking that that’s one of the gaps that the law is trying to fix, this disparity between maximum sentences for the same motivating crime, one against a church, one against the community centre next door? Am I reading it correctly?

Mr. Marceau: Yes, you are; that’s absolutely the case. If I may address two little things, the second thing I want to say is that there was an issue raised by Mr. Trudel, mainly about the number of people in prison and all of that. Is it an issue? Yes. Is that an issue that should be dealt with here? I don’t think that’s the place. If this committee wants to go broader, I’m happy. That might be a study worth taking.

The third thing is: Let’s remember where it comes from, not only Bill C-305 but why houses of worship and cemeteries were put in the Criminal Code in the first place. It was after September 11, where there was a fear by the legislators that members of the Muslim community would be taken as targets of hate crimes in that loaded period of time. It was a message sent by the legislators, saying, “Yes, we are strengthening the anti-terror legislation. There are many things that we can do, but the message is that not every Muslim is terrorist. Our community is peaceful. A crime against this peaceful community will be severely punished.” We saw with the report again this week that there is a spike in hate crime, broadened now more than with the Muslim community. The trajectory of Muslim targeting is going even higher. We talked about the number for the Jewish community. Let’s not underestimate the power of the message sent by this body, by Parliament, when it says, “targeting identifiable groups, whether Muslim, Christian, Sikh, Jewish or LBGTQ, is unacceptable in Canada.” That is also something that is important for the legislators, for Parliament, to do.

Senator Pate: Following up on the question that Senator Gold just raised, if the main objective is to increase the penalties, I’m curious, then, how you reconcile that with some of what leaders in the community have said in response to, particularly, some of the crimes that have happened here in Ottawa that have involved youth. We know it’s often young people who have their own panoply of other issues that contribute to that, and we know that there is evidence — in fact, the Supreme Court of Canada said — that deterrence is ineffective and is not legitimate in terms of deterring crimes, particularly for youth. How do you reconcile that with a desire to actually send a message that would be, it sounds like, more educational? Who wouldn’t support that and wanting to ensure we don’t see more of these sorts of offences? If the focus is going to be on the penalty, then what evidence is there that that will actually create a safer situation for any of the groups?

Mr. Marceau: First of all, you mention youth, and I assume you are talking about the person responsible for the wave of crime here in Ottawa.

The young gentlemen was, if I remember correctly, a couple of months short of his eighteenth birthday. So, if he had done the same thing two months later, the penalties would have been much stricter.

Senator Pate: And could be. There is already provision to —

Mr. Marceau: Yes, but, as a young offender, he is treated differently than if he were charged as an adult. I can tell you that the Jewish community — I’m careful here because the Jewish community is far from monolithic; the expression is “Two Jews, three opinions” — was looking for a harsh penalty against that young gentleman, absolutely, when he touched the — synagogue, when he touched — ,which is my own synagogue in the Jewish Community Centre. The community was scared. We were getting phone calls in the morning, saying, “Should I should send my kid to the school, or should I go to the community centre?” It’s wrong to underestimate the impact that it has on general community members. As for deterrence, I think it’s one the two elements of any criminal law system. There is both a penalty and a deterrence.

I believe, as Senator Gold said earlier, raising the maximum from 2 to 10 years is something that should be considered, that should be adopted, and I do believe that a message sent by the legislator is one of the roles of Parliament as the highest democratic institution in the country. It’s one of the roles that you have as a senator and that members of Parliament have.

Senator Pate: Even though members of the community said they would preferred a more restorative or educative approach?

Mr. Marceau: Because it was a young offender.

Senator Omidvar: My question is along the lines of the question posed by Senator Pate and it’s to Mr. Singh and Mr. Ahmed.

I’m sure you consulted with your communities about this bill and I’m wondering if you heard any concerns from the members of your community about this bill in particular about any unintended consequences that they might fear?

Mr. Ahmed: What could those be?

Senator Omidvar: As Senator Pate was saying, a better way of dealing with these situations is through education, conflict resolution, as opposed to criminalization, et cetera?

Mr. Ahmed: When you see a pattern in people committing hate crimes, I believe you need to deal with it with strictness. In an incident which happened at Ottawa at our community centre, they shattered the window of one vehicle and they left an axe in front of the door of the community centre. Just imagine the kids coming to mosque or a community centre, coming with this in mind, that somebody would attack them with an axe or something. So yes, we have consulted the community but I think these hate crimes are on the rise and we need to deal with it with strictness.

Mr. Singh: In 2016 we saw a rise in fear in the Sikh community as well in terms of the fear of their community centres being attacked or targeted. That fear led to direct changes in the way the community centres organize themselves, whether it was by keeping 24-hour personnel, installing security systems. In terms of whether we’ve consulted the community on alternative options, I would say that what I’ve seen from my experience working with the community a lot of them try not to even report these types of crimes and the motivating factor is they try to avoid any media attention or any secondary follow-up attacks.

We try to educate them and I think some of our other colleagues have done great work in terms of educating their communities in reporting these hate crimes. I look at the reporting of these hate crimes as a motivating factor encouraging education and that in itself leads to reducing these types of crimes.

Pushing forward with Bill C-305, from moving it from just a religious centre, place of worship, to a school, which is basically an equivalent institution in the Sikh community, would just serve the principle of protecting those students as well.

Mr. Marceau: Can I answer quickly, senator?

Senator Omidvar: Please.

Mr. Marceau: Education is important. As I said, I don’t think Bill C-305 is a panacea that will solve everything. Our three communities are engaged in educating Canadians about who we are.

I was invited to gurdwara for the first time a couple of years ago and I had never been in to understand the wonderful work and how organized the community is, and the same thing with the Ahmadiyyas. And we had just recently a visit of Ahmadiyya to a synagogue in Toronto and went to a mosque in Toronto as well. And we’re opening the synagogues and community centre to the general population.

It is all a question of understanding. Criminal law is limited and on that I agree with Mr. Trudell. It has its role, it’s an important role and we are here to discuss Bill C-305, but education and having Canadians generally understand our communities better is something that we’re speaking for the Jewish community, but I saw the work of the two fellow organizations that are here are intensely engaged in that.

The Chair: Thank you, gentlemen for your appearance here today and your testimony; it’s very much appreciated.

Members, next Wednesday we will be dealing with clause-by-clause consideration on this bill, as well as hopefully adopting our report on miscellaneous statute law.

Meeting adjourned.

(The committee adjourned.)