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Racism, Xenophobia and Hate Crimes: Lawyers fighting back

  • August 18, 2017
  • Richa Sandill

This time, as a lawyer, I am in a position to take action if I see racism, xenophobia, and hatred happening around me. 

I belong to a generation that probably was not even old enough to completely understand what was happening when our teachers came into our classrooms and told us that planes had hit the World Trade Centre on September 11, 2001. I remember not even knowing that the World Trade Center existed prior to that point. Yet we were the ones who grew up with the consequences and the changed world that this horrific tragedy left behind.

Racism, xenophobia, and hate crimes had existed in the world before 2001. However, it was around then that I learned words like “stereotype” for the first time. The news channels at home were fervently debating the religions of the radicalized terrorists who had carried out the attacks. My parents would come home with stories of people that looked “Muslim” being harassed and mobbed. We heard more stories of Sikh, Muslim, Arab, Indian kids being bullied in schools. Suddenly, airport security became an ordeal for certain families and individuals. Four days after 9/11, the Hamilton Hindu Temple, a place that I have a vivid memory of going to as a child, was burned down.

Sixteen years later, somehow we find ourselves at a similar crossroads. The United States federal government continues to advocate for a ban on travellers from a number of Muslim-majority countries, following the rhetoric of that country’s most recent election campaign. In spite of the focus in Canada on celebrating diversity, we still see hate-motivated violence in Canada like the mosque attack in Quebec, or anti-semitic graffiti and Islamophobic protests right here in Toronto. This all comes two years after Statistics Canada recorded a five per cent nationwide increase that year in reported hate crimes in a recently released 2015 study. recently released 2015 study. To top it all off we now have something even more potent for spreading hate than we did in 2001: the Internet, and all the cyber-bullies, opinionated comments, and tweets that come with it.

The difference this time is that I am, as a lawyer, in a position to take action if I see racism, xenophobia, and hatred happening around me. There are a few different options to assist clients and the community in combating these scenarios.

Option 1: Human Rights Avenues

Human rights complaints are one option. Discrimination against another person on the basis of their race, ethnicity, place of origin, or creed are all protected grounds under the Ontario Human Rights Code . Provincial service providers, employers, associations, housing providers, and members of contractual agreements are all prohibited from treating an individual differently on these grounds .

Telecommunications and broadcasting, including internet service providers and website providers, fall under federal jurisdiction, and are thus subject to the Canadian Human Rights Act . Section 12 in particular makes it a discriminatory practice to publish or display before the public signs, symbols or representations that either expressly or implicitly discriminate, or incite or are calculate to incite others to discriminate on the basis of protected grounds – including race and ethnicity.

While effective as a process, damage awards for racial discrimination remain relatively low at the Ontario Human Rights Tribunal, and perhaps even more-so at the Canadian Human Rights Commission – a realm where damages awards higher than $25,000 are rare. Civil claims may be an option if there is an additional, identifiable tort attached to the discrimination.

Option 2: Criminal Code Provisions

Then there are hate crimes - defined in section 718.2 of the Canadian Criminal Code as acts motivated by hatred towards an identifiable group. Manifestations of hate crimes include harassment, threats, physical force against another person or group, and/or destruction of property.

In this context, section 318 of the Canadian Criminal Code makes it a criminal offence to advocate or promote “genocide” of an identifiable group, including those distinguished by colour, race, religion, national or ethnic origin. Moreover, s. 319 criminalizes the public incitement of hatred, including by telephone, broadcast, or audiovisual methods. Section 430(4.1) makes it an indictable offence to commit mischief in relation to a building or place of religious worship if that mischief is motivated by bias, prejudice, or hate based on religion, race, colour or national or ethnic origin.

Option 3: Supporting Victims

Even before we get to court, one of the most powerful things we can do as advocates is encouraging victims to come forward. The press release that accompanied the Statistics Canada survey mentioned above estimated that only 35% of hate crime incidents in Canada are actually ever reported to police. The increased reported hate crimes was also attributed to increased police and community outreach to particular ethnic groups where hate-based violence is rampant. We need to build a safer space and community for victims to come forward, and be armed with the knowledge to help them if need be.

More importantly, we need to be part of the movement to celebrate our differences. This is a country that prides itself on diversity. By 2031, 63% of individuals in Canada’s three largest metropolitan areas will be of a visible minority. It doesn’t take long for ignorance to feed into other peoples’ perceptions, especially when flooded with images and mob mentalities towards certain groups. As lawyers, we can and should be engaging with our communities, whether by volunteering, supporting the movements around us, or having conversations like the upcoming “Lawyers as Agents for Change” program on September 8, 2017.

I became a lawyer because I genuinely believed in the power of advocacy and the law to make a change. Perhaps the things I saw and heard during those post 9/11 years planted the seed for this thinking. I want to do everything I can in the years of practice ahead so that another generation doesn’t have to grow up in an era of suspicion, of hate, and of racism that really has no excuse to exist anymore.  


About the author

Richa Sandill is an associate lawyer at Rudner MacDonald LLP, a boutique firm specializing in employment law services. She articled with the firm, and was called to the Bar in 2016.

She served as Editor for the OBA Constitutional, Civil Liberties, and Human Rights Law Section and is a member of the OBA Women Lawyers Forum Executive.

Richa will moderate a panel of speakers at the OBA’s September 8, 2017 program, Lawyers as Agents for Change, as they address issues such as how lawyers can identify hate crimes, strategize how to address hate-based incidents that may fall below the legal threshold for hate crimes, and provide critical legal assistance to individuals or groups targeted by such incidents.

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