When the policies get it wrong

"Hate crime laws strengthen and legitimize the criminal-punishment system, a system that targets the very people these laws are supposedly passed to protect," once wrote legal scholar Dean Spade.  At the time, he was referring to racial profiling laws used to define "terrorist threats" created by CSIS. It’s a warning we should heed as lawmakers react to attacks over the course of the last year against Muslims and other racialized groups in Canada.

In Alberta alone, the National Council of Canadian Muslims (NCCM) has reported  14 attacks in the last ten months. At least 10 have been Black visibly Muslim Women wearing the hijab showing a clear disproportionate rate against this small community. In December 2020, a mother and daughter's wildly publicized violent assault at a shopping mall was the flashpoint for multiple attacks that would soon follow in broad daylight. Women were stalked, harassed, and violently assaulted in transit waiting areas, university grounds, malls, and park grounds.

These incidents point to an urgent need for meaningful legal action based within an intersectional framework that takes into account the anti-Black racist, and Islamophobic gender-based violence. Instead, we are hearing growing calls for policy changes that would emphasize more reliance on our carcel systems. This is not the solution for racialized or marginalized communities who are all too familiar with a system that has historically been used it against them. Canadian policy and lawmakers need to do better.

Before politicians craft legislation to address hate crime, we need to analyze existing policies that inadvertently perpetuate hate in Canada. Though the objective may be to protect Muslim Women who have been victims of hate crimes, we must acknowledge past legislative initiatives that have alienated those very people. Consider the 2015 federal Zero Tolerance for Barbaric Cultural Practices Act which perpetuated the notion that violence from systemic racism and sexism is less of concern for Muslim women, and justified that their culture is the reason for their alienation in society. The law likely reinforced a sentiment picked up in a nationwide survey published in 2012, according to which 52% of Canadians distrusted Muslims, and 42% believed that discrimination against Muslims is "mainly their fault."

Similarly, Quebec's secularism law (Bill 21) focused on precluding public sector employees from wearing visible religious symbols. As noted in the submission to the UN Special Rapporteur on Freedom of Religion or Belief, Canadian lawmakers, federally and provincially, need to understand that such laws and policies do not save Muslim women. Instead, they create "social exclusion, economic marginalization and psychological effects such as anxiety, fear, depression, and frustration." That is the current reality for visibly religious groups in Quebec who are facing state enacted social exclusion and economic marginalization.

Laws like these run counter to addressing a national crisis of gender-based violence, anti-racism and Islamophobia. According to Statistics Canada, the average Canadian is more likely to be the victim of a hate crime than an automobile accident. The same data shows that of the 223,000 self-reported hate motivated incidents reported in 2019, police investigated fewer than one per cent of them as hate crimes. Meanwhile, a history of over-policing and systemic racism in certain communities, such as Edmonton, have yet to be meaningfully addressed.” Aside from lawyers and prosecutors committed to understanding communities historical connections with law enforcement, we need legislation that more explicitly acknowledges the existence of hate crimes. Police in Canada opt to use terms such as “hate-motivated” or “hate incident,” but the term hate crime is nowhere to be found in the Criminal Code.

Instead, we hear calls from Alberta’s Justice Minister for the federal government to amend the Criminal Code to allow for the use of pepper spray — currently a prohibited weapon in Canada — for self-defence. Arming citizens for self-defence must not be the only legal solution for a systemic failure in defining, charging, sentencing and eradicating hate crimes. Similarly, street harassment bylaws are being altered to include harassment based on race, religion, gender identity, sexual orientation and other identifiers. The ‘Stand up against Hate” Bylaw in Edmonton has yet to pass but has been proposed in response to the escalating attacks in Edmonton against Black, Muslim Women since December. However, communities in Alberta are concerned that increased policing and surveillance on transit will only exacerbate the risk of street checks that have plagued communities for decades. According to a report from Progress Alberta on racial disparities in Alberta, Indigenous and Metis women experience carding four times than a white person. Black women were next on the list, and other racial minority groups such as middle eastern and other non-white persons were not far behind and had higher than average rates.

The proposed bylaw overlooks the lived experiences of Black and Indigenous Muslim Women, which is why the legal community must use advocacy to help people understand these issues via an intersectional lens. This isn’t just about decreasing funding for police, or for security and surveillance measures. There needs to be a focus on collecting data that will give us a better understanding of how existing policies inadvertently perpetuate hate and exacerbate distrust in our communities.