Lawyers have a unique role in times of crisis. In the United States, lawyers have been on the front lines of defence for civil liberties and democracy. Canadian lawyers must also be vigilant and vocal to ensure that the tides of social tension and moral panic do not sweep away our carefully constructed legal rights. We must vigorously defend the rights of minorities and also zealously guard the rights of people who are accused.
One such concrete action could be effected by the passage of Bill C-305, which proposes amendments to s. 430 of the Criminal Code. Bill C-305, An Act to amend the Criminal Code (mischief) received first reading in the House of Commons on Nov. 22, 2016.
The legislative proposal, if passed, will extend the maximum 10-year prison penalty for mischief on religious buildings motivated by hate to apply to all public buildings, including places such as universities, community centres, seniors’ residences, daycares and sports arenas. The bill also aims to add gender identity and sexual orientation to the criteria of what constitutes a hate crime when it comes to mischief. Currently, the provision includes only religion, race, colour and national or ethnic origin. Thus, the bill would make available prison terms of up to 10 years for property damage in a wide range of new circumstances.
Bill C-305 has significant political backing across party lines. It also has grassroots support. Many community members have promoted Bill C-305, including Ottawa’s Centre for Israel and Jewish Affairs and the city’s Youth Services Bureau. This strong support from Ottawa stems, in part, from a spate of hate graffiti in Ottawa in late 2016. This included incidents where a United church was defaced, along with a mosque, two synagogues and a Jewish prayer centre. A teenage boy is currently awaiting trial in relation to the incidents, and he cannot be identified under the Youth Criminal Justice Act. The acts led to a wide range of community responses, from hurt and devastation to expressions of solidarity for the victims, and a desire expressed on the part of some clergy for reconciliation and healing.
I support Bill C-305’s proposals to move away from protecting only religious institutions and toward full inclusion for LGBT persons. These changes would better reflect the diversity of our communities than does existing law. They would make visible and more accurately measurable the realities these minorities face.
However, while hate crimes should be defined to include gender identity and sexual orientation, and property protection should not be limited to places of worship, I have concerns about the extension of 10-year maximum sentences to new non-violent crimes that is contained in the bill.
The proposal comes at a time when Canada’s incarceration rate is already at an all-time high and when, in particular, as evidenced by a Statistics Canada Report on pre-trial remand released Jan. 10, we have a high rate of pre-trial detention of youths and a growing majority of youth in custody being held in remand relative to the numbers in sentenced custody. As currently drafted, Bill C-305 would likely lead to the incarceration of more Canadians for longer for non-violent crimes. It would also likely lead to the pre-trial detention of more youths accused of mischief.
Clearly, we are in a time of increasing nativism and the emboldening of hate-motivated crime. This did not begin with Donald Trump. Incidents of police-reported hate crime against Muslims in particular have, according to Statistics Canada, increased over the last few years, especially in Quebec. Years before Trump’s election, much Canadian political rhetoric on the right capitalized on Islamophobia and xenophobia to talk about “Canadian values” in opposition of the wearing of the niqab.
We need to take hate-motivated crime seriously. However, I worry that Bill C-305 will amplify Canada’s existing problem with over-incarceration and particularly of excessive use of pretrial detention for youths. The problems of our moment in national and international politics are complex and painfully embedded in our society. We must differentiate between violent offending and property crime.
However tempting it may be to hope so, tensions in our communities around race and religion will not be easily resolved by rash recourse to lengthy prison terms for people who commit non-violent property crime. Scapegoating youths who deface buildings distracts from the root causes of hate-motivated crime.
Thus, while passing Bill C-305 will bring about concrete benefits by closing gaps in the recognition of and protection against hate-motivated property damage, its sentencing provisions should be revised. Rather than more prisoners serving longer prison terms, Canada needs creative, restorative remedies that get to the root causes of hate-motivated offending behaviour.
In sending a clear message that hate-motivated violence and hate speech will not be condoned in Canada, we must be careful not to abandon our commitment to proportionate responses to offending, especially by youth.
Dr. Rebecca Bromwich is an Ontario lawyer and legal academic and serves as the director of the Graduate Diploma in Conflict Resolution Program at Carleton University, in the Department of Law and Legal Studies.