My name is Joseph Neuberger. I have previously sat on various committees dealing with combatting antisemitism as well as safety and security of Jewish institutions with United Jewish Appeal. Since October 7th, 2023, I became involved with the Centre for Israel and Jewish Affairs, and a smaller committee to address the rise of antisemitism. From this smaller committee various initiatives were started, and one was the creation in October of 2024 of the Canadian Jewish Law Association (CJLA). We have a board of 12 directors. Our mission has many important aspects including educating the legal community and the wider public on legal issues affecting the Jewish community in Canada; advocating for a just and inclusive society free of antisemitism, prejudice and hate; and promoting the rule of law, access to justice and the promotion of excellence in advocacy in fulfillment of our vision and mission. We have been actively engaged in providing support to students, Jewish and non-Jewish, lawyers, and members of the public who have suffered antisemitism and isolation post October 7th. We have been actively involved in antisemitism training for police and soon with judges in Ontario. As such, we have developed a unique knowledge base and experience with the harms and trauma associated with hate crime and antisemitism.
My expertise is in criminal law. I have practiced for over 32 years and appeared on matters in all Ontario Court levels as well as acted for the Province of Ontario on inquests and inquiries.
Support for Mark Sandler’s Submissions:
At the outset, I wish to note that I have had the benefit of carefully reviewing the legal analysis and submissions of Mark Sandler, Chair of the Alliance of Canadians Combatting Antisemitism (ALCCA) to this committee. I and the CJLA are in full support of Mark Sandler’s submissions.
Lack of Enforcement and the Erosion of Societal Values of Civility and Tolerance:
Mark Sandler has already pointed out in his cautionary note that the primary impediment to the prosecution of hate-motivated crime in Canada has not been the absence of adequate laws. There are adequate laws and tools to combat hate crimes in the Criminal Code and other provincial and municipal legislation. The issue has been a lack of will to charge and then prosecute. This underutilization of criminal law and other tools to combat hate has unfortunately emboldened the anti-Israel movement which, at its core, seeks to demonize and delegitimize the sovereign state of Israel and in particular target Jewish Canadians, through holding our community collectively responsible for the perceived or actual conduct of a foreign government. This has led to a highly disturbing rise in antisemitism. It cannot be ignored that this movement has gone well beyond objection to Israel’s policies and actions; it has become about targeting Jews in Canada. This has led many to feel isolated, vulnerable and saddened at the loss of our societal values of respect and civility toward fellow members of our Canadian communities. I strongly urge this Committee to recognize the priority that must be given not only to enhancing existing laws, but to strongly encouraging other levels of government and law enforcement to enforce the laws we already have.
Amplification of Recommendations of Mark Sandler:
As our organization supports in full the submissions of Mark Sandler, I will focus on four aspects that are part of Mr. Sandler’s submissions.
1. “Hatred” is defined under the new legislation:
The government has indicated that the “definition is based on Supreme Court of Canada jurisprudence currently followed by courts.” The definition focuses on the concepts of detestation or vilification and specifies that mere dislike or disdain is not hatred. The language is similar to the definition adopted by the Supreme Court of Canada. It would be prudent for the precise language used by the Supreme Court of Canada be adopted as the definition of “hatred.” Utilizing the precise formulation of Chief Justice Dickson in Keegstra would eliminate any concern that the test has been changed. He stated that “hatred” connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation. He also made it clear that this emotion is stronger than distain or dislike. The proposed definition states that hatred is the emotion that involves detestation or vilification and that is stronger than disdain or dislike.
This amendment should not be an issue for the government given its commitment to follow the pre-existing jurisprudence. The amendment would limit any arguments that a new definition of hatred compels the courts to revisit whether the existing hate propaganda offences remain constitutionally valid. Those hate propaganda provisions represent an important tool in combatting hate. In our experience, hate propaganda, on social media, on our streets and in our institutions, has too frequently been a precursor to violent extremism and the marginalization of targeted communities, the dangers identified by the Supreme Court of Canada in upholding limited restrictions on freedom of expression.
- The proposed legislation repeals s. 430(4.1) of the Criminal Code:
Subsection 430(4.1) creates a separate, aggravated (that is, more serious) form of mischief respecting places of worship and other vulnerable locations when the mischief is motivated by bias, prejudice or hate. It is easier to prove that a crime was motivated by bias, prejudice or hate than to prove that it was motivated by hate (the most extreme emotion) alone.
As Mr. Sandler pointed out in his testimony before the Committee, this offence was created because “mischief” failed to reflect the seriousness of vandalism directed against places of worship and other vulnerable community spaces. We understand why certain offences (such as hate propaganda) should be dependent on proof of “hatred”, not merely “bias, prejudice or hatred.” However, vandalism captured by s. 430(4.1) is undeserving of Charter protection and should attract deterrent and denunciatory treatment when motivated by bias, prejudice or hatred. The subsection works well in its current form, conforms to the language used in s. 718.2 of the Criminal Code, and should be retained. Its retention is not incompatible with a higher standard applied to other offences, particularly those that more directly engage freedom of expression issues. It should not be repealed.
- Hate Propaganda Offence (Symbols of Hatred):
Our organization strongly supports Mark Sandler’s position that a new free-standing offence be created that criminalizes the display of symbols associated with terrorist entities listed under the Criminal Code. The proposed law does not accomplish this. Rather, it merely provides that one way in which an individual can wilfully promote hatred against an identifiable group (already a criminal offence) is by displaying such symbols.
This explicit acknowledgement represents a small step forward, but it is insufficient. This new offence would appear to require proof not only that the symbol has been displayed in a public place, but proof also of the elements of wilful promotion of hatred against an identifiable group. As such, it becomes a more cumbersome prosecution than it should be. Indeed, prosecutions will degenerate into whether a particular identifiable group is targeted by the display of terror symbols, instead of focusing on the intrinsic unacceptability of displaying symbols that unequivocally support terror.
A simple, free-standing offence that criminalizes the display of such items has been utilized in other countries and states. Arguments have been made that such a free-standing offence would not survive Charter scrutiny.
These arguments are not sustainable if the offence section is carefully crafted to ensure that there is a close connection between the incriminating symbols and prohibited terror groups. As well, the mens rea (mental element) of the offence must clearly ensure that a conviction can only take place if the accused displays a symbol, known by the accused to be directly associated with a prohibited terror group. It is difficult to understand why the Charter would be interpreted to extend protection to those who deliberately choose to display symbols, other than for the innocuous reasons exempted in the legislation, known to represent terrorist activities.
Some have suggested that the legislation is problematic because it is underinclusive (that is, it doesn’t, for example, extend to KKK symbology.) With respect, under inclusiveness is hardly a basis upon which government should fail to act. The point of the legislation is to address hatred fomented by advocacy on behalf of terror groups prohibited by Canada. Parliament has the means of amending the legislation or creating, by Regulation, a list of prohibited symbols if experience shows that under inclusiveness is a serious issue.
Many organizations and individuals, from a variety of perspectives, have raised concerns about the failure of law enforcement to take adequate measures to combat hate, given its impact on vulnerable communities and its role in radicalizing others to act violently. The identification of hate symbols in legislation provides clear direction to the police, resulting in greater levels of enforcement, while remaining true to Charter values.
- Creation of the Offence of Wilful Promotion of Terror Groups/Activities:
The Criminal Code contains various terrorism offences. They are complicated and difficult to read and understand. The extent to which they apply to those who express material support for designated terrorist groups is unclear. Freedom of expression does not protect threats of violence; nor should it protect expression that wilfully promotes terrorist activities or the activities of terrorist groups designated under the Criminal Code.
Parliament must create a new offence for the wilful promotion of terrorism that addresses those who publicly promote terrorist activities or the activities of a terrorist group.
More specifically, such an offence would criminalize the conduct of those who, by communicating statements other than in private conversation, wilfully promote terrorist activities or the activities of a terrorist group. Such a provision would be a permissible infringement on speech for the reasons already indicated and because the Supreme Court has already determined that wilful promotion of hatred against an identifiable group (containing precisely the same core language) is a constitutionally valid offence.
This offence would focus on promotion of and support for terrorist activities or terrorist groups (already defined in the Criminal Code), rather than requiring a determination of whether that promotion or support is based upon hatred directed against an identifiable group, such as Jews.
This approach would also solve the deficiencies in the current proposed “display of symbols” offence. For example, whenever terrorist symbols such as Hamas or Hezbollah flags are displayed, the accused under the proposed legislation, if enacted, will likely argue that they don’t hate Jews, only Zionists. Leaving aside the fact that the expression of hatred of “Zionists” should never be legally acceptable—because it is no different than expressing hate for a racial or ethnic group or entity—this argument will be irrelevant where the accused have displayed symbols to support prohibited terror groups.
Conclusion:
There is much offered by the new draft legislation that can go a long way to addressing not only the rise of antisemitism in Canada but hate and discrimination directed at any identifiable group. This legislation with the suggested amendments of Mark Sandler and fully endorsed by me and the CJLA, is a vital step in restoring our shared Canadian values of a social contract that prioritizes respect, civility and tolerance even when we disagree on serious and important issues.
I thank you for taking the time to review my submissions.
Respectfully submitted.
Joseph A. Neuberger