An Act to amend the Canadian Human Rights Act (protecting freedom)
Brian Storseth Conservative
Introduced as a private member’s bill. (These don’t often become law.)
Subscribe to a feed of speeches and votes in the House related to Bill C-304.
- June 6, 2012 Passed That the Bill be now read a third time and do pass.
- May 9, 2012 Passed That Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom), as amended, be concurred in at report stage.
- Feb. 15, 2012 Passed That the Bill be now read a second time and referred to the Standing Committee on Justice and Human Rights.
June 7th, 2012 / 2:55 p.m.
Randall Garrison Esquimalt—Juan de Fuca, BC
Mr. Speaker, it is the Internet that is quickly becoming a haven for all sorts of anonymous hateful acts. Gay and lesbian teens have been bullied to the point of suicide. Islamophobia and anti-Semitism are rampant online, with neo-Nazi groups continuing to spread hate. In 2010 alone, police reported over 1,400 hate crimes in Canada. Yet, last night's repeal of an important piece of hate crime legislation gives the green light for these intolerant acts to continue.
Do the Conservatives have any proposals for protection against Internet hate crimes that could fill the void left by the passage of Bill C-304, which they like to applaud so vigorously? Anything that will not require a squad of lawyers and thousands—
June 7th, 2012 / 2:55 p.m.
Françoise Boivin Gatineau, QC
Mr. Speaker, there was a rare moment of unity last night on the Conservatives' side. With the support of one Liberal member, they voted to eliminate the sections on hate speech from the Canadian Human Rights Act, confusing the concept of freedom of expression with that of hateful expression.
By voting in favour of Bill C-304, the Conservatives are creating injustice for women and reducing the level of protection provided to women, visible minorities and LGBT groups.
Now that Bill C-304 has passed, will the minister commit to immediately filling the legal gap that exists in the Criminal Code regarding gender?
Canadian Human Rights Act
Private Members' Business
June 6th, 2012 / 9:20 p.m.
The House resumed from May 30 consideration of the motion that Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom), be read the third time and passed.
June 5th, 2012 / 4:45 p.m.
Craig Scott Toronto—Danforth, ON
That actually slides into the next point.
There is a reference on page 32 of the document to how, after 9/11, “stronger laws against hate crimes and hate propaganda” were part of the measures taken. Some of us are quite concerned that we're about to see Bill C-304 go through the House, a bill that actually repeals the hate propaganda sections of the Canadian Human Rights Act. It deals with robocalls and Internet websites disseminating hatred.
In the report, white supremacy groups are listed as the kind of issue-based local terrorists that we might be concerned about or groups that might become terrorist. In the whole planning exercise, I wonder whether this bill, Bill C-304, ever came on the radar screen of Public Safety. It's a private member's bill, so it could well be the case that it didn't.
Canadian Human Rights Act
Private Members' Business
May 30th, 2012 / 7 p.m.
Françoise Boivin Gatineau, QC
Madam Speaker, I am pleased to rise again to speak about Bill C-304, which Kathleen Mahoney, a professor in the Faculty of Law of the University of Calgary and a member of the Royal Society of Canada, called a bill on the freedom of hateful expression.
We need clarification, because to associate this bill solely with freedom of expression is to forget what is protected by section 13 of the Canadian Human Rights Act. It is sometimes good to remind ourselves of this, and I like to do so.
It must be the lawyer in me that likes to refer specifically to acts and bills. When I examine and analyze legislation, I always go over it with a fine tooth comb, and with an open mind, which is what my colleague from Westlock—St. Paul asked members of this House to do as they consider his bill.
At first glance, everyone who reads the bill tends to agree with it because it amends the Canadian Human Rights Act in order to protect certain freedoms, including the freedom of expression.
However, once again, the devil is in the details and in the drafting of the bill. We came across several problems during our in-depth consideration of the bill in committee. The witnesses drew attention to a number of problems. I think my colleagues from Mont-Royal and Toronto—Danforth did a good job of highlighting the problems. Nobody said they disagreed with the protection against hate speech because that is what section 13 of the Canadian Human Rights Act is trying to prevent. I do not think that anyone in this House is against this, even on the government side. Ultimately, their responses to our concerns always brought us back to the Criminal Code, specifically to section 319, which already provides for criminal charges against anyone engaged in this kind of behaviour.
Section 13 was not a major problem in the opinion of the witnesses, which really struck me, and, to use the words of the previous member, the section was not too vague. No witness said that it was. One only need read the jurisprudence developed by both the Supreme Court and the Human Rights Tribunal. Nobody came and told us that the decisions were inadequate or that people who had not engaged in hate speech had been found guilty under Canadian law.
What people invariably told us, which made them feel like giving up when it came to solving the section 13 problem, is that it required time and was very costly. They added that if somebody were to file an obviously futile, frivolous or completely ridiculous complaint, that there would be no tools in the legislation to enable the commission to dispose of the case swiftly.
According to those who specialize in defending people charged with uttering hate speech or encouraging this kind of speech as defined in section 13, the process can take five or six years and huge amounts of money.
I explained to the committee that I thought we were throwing out the baby with the bath water. That often happens with bills, whether they are government or private members' bills. To avoid one type of problem, the section is deleted in its entirety. That creates an enormous hole. I asked the member about that and the Green Party member asked the very same question. To date we have not had a response. This bill would repeal section 13, which states:
13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
Section 3 reads as follows:
For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
I repeat: it clearly mentions sex.
Let us now look at the Criminal Code, since the defence of the government and the Conservative Party at every stage has been based on the Criminal Code. Section 319 of the Criminal Code pertains to public incitement of hatred. I will not get into all of its shortcomings. It is not clear how crimes are prosecuted under section 319. What is worse, the identifiable groups are only those distinguished by colour, race, religion, ethnic origin or sexual orientation. What about cases involving hate speech based on sex, on gender? They are not mentioned at all.
One element of protection for women has just been taken away—one that was essential because of how difficult it is to enforce a section of the Canadian Human Rights Act. I find that totally unacceptable. In committee, we made some progress with the Conservatives but not enough for them to listen to reason, to decide to wait before passing this bill or to decide to address the bill's shortcomings before continuing the debate.
Canadian Human Rights Act
Private Members' Business
May 30th, 2012 / 6:40 p.m.
Irwin Cotler Mount Royal, QC
Madam Speaker, we are here tonight to debate Bill C-304, a bill which, if passed, would repeal section 13 of the Canadian Human Rights Act, thereby eliminating civil remedies for protection against hate speech in this country, particularly as regarding the exploding and assaultive hate speech and incitement on the Internet, of which insufficient reference, understandably given the limitations of time, has been made at these debates.
I do not wish to reiterate that which I have elaborated upon previously in the House and in committee. Suffice it to say that I believe that this initiative, while well-intentioned, is nonetheless ill-considered, uninformed and a prejudicial move in the wrong direction. Simply put, without effective recourse against hate and group-vilifying speech, we are both ignoring and betraying the lessons of history regarding the dangers of assaultive speech. The arguments of some in this place in support of a repeal, frankly, have made a mockery of our constitutional law, arguments regarding free speech and, indeed, the related jurisprudence, in particular Supreme Court jurisprudence.
I note that this debate takes place at an interesting confluence of events. It is the 30th anniversary of the Canadian Charter of Rights and Freedoms, when we celebrate a doctrine that rightly enshrines freedom of expression. The mover of the bill rightly characterized it as a cornerstone of democracy, but the Supreme Court has held, and this is the important point, that it is not an absolute right, although very often the mover has spoken of it as if it were.
It is one where the freedom of expression has to be read in the light of and in relation to section 1 of the charter and the limitations on hate speech and, as the Supreme Court put it, that are demonstrably justified to promote and protect equality, and that is the purpose of this civil remedy: to guard against violations of section 27 and assaults on our multicultural heritage; to implement our international legal obligations where racist hate speech is held to be outside the ambit of protected speech; most important, and this has been missing entirely from the member's appreciation and those supporting the bill, to guard against assaults upon the very values underlying free speech itself, as the Supreme Court has put it, the search for truth, individual autonomy, equality and democratic participation.
We are also in the aftermath of the month of April, which T. S. Eliot famously described as “the cruellest month”. Indeed, we marked in April the anniversaries of the Rwandan genocide, Yom ha-Shoah, Holocaust Memorial Day, as well as the anniversaries of the Armenian genocide and the Srebrenica massacre, all of which began in April. In the United States and other jurisdictions, April has been designated as a genocide awareness and prevention month.
Indeed, the Supreme Court of Canada has itself recognized the dangers of hate speech in the three causes célèbres of the Supreme Court in the Keegstra case, the Smith and Andrews case and the Taylor case, all of which spoke of the danger that this hate speech can take us down the road to such atrocities, reminding us that the Supreme Court recognized that the Holocaust did not begin in the gas chambers; it began with words. As the court put it, “These are the catastrophic effects of racism. These are the chilling facts of history”.
Moreover, B'nai Brith's 2011 “Audit of Antisemitic Incidents” concluded that in the last 10 years there has been an almost threefold increase in reported hate-related incidents in Canada since 2002. I raise this because, as history has taught us only too well, while it may begin with Jews, it does not end with Jews. Anti-Semitism is the canary in the mine shaft of evil which can threaten us all, and so does assaultive speech against vulnerable and targeted minorities, whoever these identifiable groups may be.
While the government insists that these are so-called victimless crimes, the truth is, the courts have found in their harms-based rationale for upholding the constitutionality of such legislation, and indeed, that includes the Cohen commission. The mover spoke as if the Cohen commission did not support this civil remedy. I want to put it on the record that the Cohen commission did support this civil remedy, as it did support the criminal remedy, but realized that these are different remedies by the way in which we address and redress the fundamental threat of assaultive speech, that there is pain and suffering, discrimination and exclusion among those vulnerable communities who are so targeted.
Accordingly, if we are not vigilant in guarding against such assaultive and group-vilifying speech, words can become actions and these actions may themselves have harmful, if not deadly, consequences.
It has been suggested in this debate that somehow free speech is an absolute right or that it ought to be.
I would remind colleagues that even in the United States, the home of the First Amendment doctrine, there are prohibitions against perjury, to protect the right to a fair trial; prohibitions against treasonable speech, to protect national security; prohibitions against pornography, to protect the human dignity of women and children; prohibitions respecting libellous and defamatory speech, to protect privacy and reputation; prohibitions against misleading advertising, to protect consumers. I could go on.
Know that those who have moved this appreciate that in supporting the criminal law remedy they are themselves acknowledging that free speech is not an absolute right.
Therefore, what we are arguing about is not the issue of protecting free speech. We all agree about the protection of free speech. We all agree that it is the cornerstone of democracy. The question is: How do we counteract assaultive hate speech? The criminal law remedy is one remedy but the civil remedy, a 35-year-old remedy, is yet another.
Simply put, the provisions against hate speech partake in this genre of limitations to protect the rights of individuals and minorities against group-vilifying speech and to protect against inequality, and here the civil remedy comes in, resulting from the discriminatory hate practices that reduce the standing and status of targeted individuals and groups in society and indeed to protect, as I mentioned, not only the very values underlying free speech but the very values, as the Supreme Court put it, that constitute a free and democratic society such as Canada.
Some listening may wonder why the Criminal Code provision is not enough. Simply put, a criminal remedy is not a one-size-fits-all option. It is, in fact, a remedy that should be used restrictively and sparingly. In fact, it is only sparingly invoked.
Most important, in addition to the fact that it should be used sparingly, the problem is that it does not allow for alternative, creative or adaptive remedies, such as those requiring education, outreach or engaging with those affected, what I would call a restorative justice approach to combating hate speech, unlike the criminal law remedy which characterizes it as a crime against the state but where the civil remedy can characterize it as a demonstrable harm to the targeted community as a discriminatory practice, as an equality rights issue and that which can only be addressed within the framework of a civil remedy.
None of this is intended to suggest that section 13 of the Canadian Human Rights Act is ideal, appropriate or effective in its present form. Indeed, I and others have identified numerous flaws with it and have made suggestions for its improvement, including amendments I tabled at committee.
However, the issue is that the government refuses to even consider any reform or amendment. Indeed, it asserts that repeal is the only option, ignoring why the section was enacted to begin with, why it is still necessary today and in what ways it might be reformed and improved through principled amendment.
I will outline just a few such options. We could exclude frivolous claims by requiring the consent of the Minister of Justice and Attorney General of Canada before proceeding, not unlike what we do with the criminal law remedy at this time. We could restrict actions so as to allow the commission to dismiss matters that are before it and another tribunal so as to prevent SLAPPs and vexatious efforts, including those of persons who presently, regrettably, under the present law, file the same claim in multiple jurisdictions. We could establish different rules of procedure and evidentiary considerations for the commission to address the concerns that the member who has moved the bill has properly raised. We could change costs and allow for certain types of orders to be mandated. We could appreciate the important role of section 13 in the Internet age.
Indeed, there are a panoply of options on the table but the government flat out refuses to consider any of them.
I want to be clear why I am using the word “government”, as I move to a close, when debating what has been presented as a private member's bill.
It is clear that this has been a government initiative, an element of the party platform as affirmed last June. Government members voted as a block always in committee. They refused to engage on the issue as a whole and refused to accept any amendments.
Indeed, I have to ask why the government advanced this as a private member's bill and not as a government bill. Perhaps it had certain misgivings about gauging this in the matter of public opinion and the like, arguably something it attempted it in relation to Motion No. 312, while also limiting discussion and debate throughout the introduction of this initiative as a private member's bill.
Simply put, the government is, to use the somewhat cliched expression used by my colleague, throwing the baby out, regrettably, with the bathwater. There are many principled reforms that could be made to section 13. Hate speech and incitement are increasing problems in Canada, particularly on the Internet, as a series of scholarly studies remind us, and we must ensure that there are both civil and criminal recourses at our disposal to address and redress these wrongs, as Mr. Matas and Mr. Freiman set forth in committee.
I will conclude by saying that, at the end of the day, the criminal law remedy is in place. It should and is only used sparingly. The civil law remedy is necessary for the protection of all the other values: equality, non-discrimination, protection against targeted minorities and the like. That is how we should go forward—
Canadian Human Rights Act
Private Members' Business
May 30th, 2012 / 6:30 p.m.
Craig Scott Toronto—Danforth, ON
Madam Speaker, I am privileged to rise tonight to speak to Bill C-304 which is before us. My main purpose in speaking today is to ask the question of what happens after this bill, if it passes. I suggest we need to indeed fill a gap, not simply with respect to the fact that gender protection will be lost unless something is done in a hurry, but some of the distinct benefits of civil remedies in this area will also go by the board. We cannot simply rely on the Criminal Code. That is my main message.
It is important to remind ourselves that section 13 has been part of the Canadian Human Rights Act since its enactment in 1977. It was designed to address at the beginning what we now call robocalls, automated repeat calls that disseminate hate messages on the grounds that are protected in the Canadian Human Rights Act. Afterward, Internet websites and their capacity to disseminate, on a grand scale, hate messages were added. As well a problematic section, which everybody agrees is problematic, was added to include, among the remedies under the Canadian Human Rights Act, the possibility of imposing a financial penalty of up to $5,000. That is what we have at the moment.
The question is whether this is consistent with freedom of expression. The Supreme Court of Canada in the Taylor case, an earlier version of section 13, has made clear it is. However, equally important is a second directly related question of whether or not the regulation of mass or repeated hate dissemination is required or at least strongly encouraged by the right to non-discrimination or by the human rights values of equality and dignity that underlie the charter and international human rights law. In that respect, we would do well to remind ourselves of a passage from Chief Justice Dickson, as he then was before leaving the court, in the Taylor case, where he said, in part:
—messages of hate propaganda undermine the dignity and self-worth of target group members and, more generally, contribute to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality.
I was also struck by the testimony of Mr. Mark Freiman, the just-past president of the Canadian Jewish Congress, who appeared before our committee. Among a number of insights that I commend to all colleagues to have a look at, if this issue goes forward after the vote, in terms of what we would do with respect to civil remedies, his testimony is extremely valuable. One of the things he said:
It is my view that subsection 13(1) of the Canadian Human Rights Act is an important resource in protecting vulnerable communities from the harm caused by hate propaganda.
He went on to say:
Is hate speech dangerous? To ask the question is to answer it. History provides the clearest examples of the mortal dangers—that is, dangerous to life—that hate speech can carry. Study Nazi propaganda in the thirties. Study Cambodian propaganda in the seventies. Study anti-Tutsi propaganda in Rwanda in the nineties. Study racist propaganda in the former Yugoslavia of the nineties. You will get your answer.
Therefore, it is really important that we keep in mind that kind of backdrop as to why section 13 was there in the first place and what would be lost in the process of repealing it.
My colleague who has sponsored the bill has been arguing, and has been arguing with a great deal of passion and consistency from his point of view, that the Criminal Code, especially section 319, is all that we need. It is partly where it should be for various reasons and by implication he seems to be suggesting it is effective. Although in committee he did acknowledge that he rather hoped that something might be done with section 319 to make it more effective.
However, before going on that route of accepting that repeal of section 13, the civil remedy side under the Canadian Human Rights Act can be replaced solely by a Criminal Code provision, we should again remind ourselves of the words of Chief Justice Dickson in Taylor.
It is essential...to recognize that, as an instrument especially designed to prevent the spread of prejudice and to foster tolerance and equality in the community, the Canadian Human Rights Act is very different from the Criminal Code. The aim of human rights legislation, and of s. 13(1), is not to bring the full force of the state's power against a blameworthy individual for the purpose of imposing punishment. Instead, provisions found in human rights statutes generally operate in a less confrontational manner, allowing for a conciliatory settlement if possible and, where discrimination exists, gearing remedial responses more towards compensating the victim.
I will not argue with a lot of the evidence to suggest that may indeed not be how section 13 has been functioning under the Canadian Human Rights Act. I do agree that there have been procedural abuses to the point that many seem to be willing to give up on section 13. However, as my colleague, the justice critic, said on numerous occasions in the committee, we should not be throwing the baby out with the bathwater. Therefore, I, and I hope most of my colleagues, will be opposing this private member's bill, but I recognize that it is likely to pass. Therefore, I think it is extremely important that we keep the record of witnesses firmly in mind for purposes of going forward.
If the bill does pass, we all should be open to some kind of revisiting of this issue to build back up the appropriate protections within the Canadian Human Rights Act or possibly be open to some other civil remedy at the federal level with respect to the telecommunications issues that section 13(1) deals with. Given that there is a one-year delay in the private member's bill before us, we could have some time and some space for that kind of approach, especially if the government were to co-operate. I would personally be very happy to commit resources and time to working in a multi-party way and treating seriously the kinds of suggestions we heard in the committee and the other suggestions that we know must also be out there to make a new federal civil remedy work.
In this respect, it is really important to note that no witness before us, not a single witness, referred to the content of section 13 itself or decisions made by tribunals under section 13 as being the problem. All were supportive of the fact that the actual phraseology and what the tribunals had done with it, almost always limiting themselves to extreme cases of hatred, was fine. However, everybody focused on different versions of a set of procedural problems that had led to abuse, which people felt was very real.
We are in the situation, I believe, of being about to repeal something without anything adequate to replace it. Frankly, the Criminal Code provision, section 319, is not adequate. We heard that in committee. We know that from a bunch of studies. It is not doing the job. Very little is prosecuted under it for a variety of reasons. Basically, the result is we will have a repeal of a civil remedy and a completely inadequate criminal replacement.
It is important to reiterate the point made by one of the witnesses from B'nai Brith, Mr. Kurz, legal counsel, who in one of our sessions was probably the most convinced that this was a fait accompli, that it would go ahead. Therefore, he saw no mileage in trying to have a more complex amendment to the Canadian Human Rights Act through the sponsor with the assistance of the government. However, he did want to emphasize that every section 13 decision was “unassailable” from his point of view. That is really important because some of the questions being asked from within the committee, and I think some of the tenor of my hon. colleague's presentation here tonight, suggests that the real problem is section 13 itself and how it unduly infringes on freedom of expression, which frankly I feel is the incorrect argument. I think it is the procedural and institutional flaws in how section 13 has been enforced that is the problem and that needs to be what we seek to rectify after this bill passes.
We would also do well to recall and heed the words of Mr. David Matas, who also appeared on behalf of B'nai Brith, when he said:
My view is that in order to combat hate speech effectively, you need a range of remedies. The first is simply education and advocacy and information. The notion that it has to be either the Criminal Code or nothing I think gets us to a situation where nothing ends up being done, because the Criminal Code is too draconian.
It is not simply the fact that the Criminal Code may be ineffective for what it is intended to be, but that it may not go to the heart of the kinds of reasons we have human rights codes in the first place.
I would like to end by saying that there was quite a bit of goodwill toward the last part of the committee sessions about looking forward to possibly rebuilding a civil remedy. Almost all of the witnesses from B'nai Brith and Mr. Freiman spoke in those terms. I know the government is focusing mostly on possible changes to the Criminal Code, but I think we have to keep open the possibility of a new civil remedy.
Canadian Human Rights Act
Private Members' Business
May 30th, 2012 / 6:10 p.m.
Brian Storseth Westlock—St. Paul, AB
moved that Bill C-304, an act to amend the Canadian Human Rights Act (protecting freedom), be read the third time and passed.
Madam Speaker, I am happy to be back in the House of Commons once again to debate my private member's bill, C-304, an act to amend the Canadian Human Rights Act (protecting freedom).
I would like to thank justice committee for its support, as well as the many witnesses who took time out of their busy schedules to discuss Bill C-304 and freedom of speech within committee. It is these honest and open dialogues which have moulded our great nation and will continue to advance our society into the future.
Moving a private member's bill through the House of Commons has been a tremendous experience, one that has led to many obvious ups and downs. However, it has been one that has garnered me the opportunity to work more closely with my fellow colleagues in both chambers. I would like to take this time to thank my colleagues for both their support and their constructive criticism.
It has also given me the opportunity to travel our great country from coast to coast to discuss this issue with Canadians. It is from them that I have really received the passion for freedom of speech within our country. I would like to thank Canadians for their support on this.
At a practical level, I would like to thank my staff member Amee Pundick for tremendous work on this bill. Most important, the pressures that moving a private member's bill through the House can create on one's schedule means that there is more pressure on the family. I would like to thank my parents, my son Eastin and my daughter Ayden for their patience and most important my wife Amel for her tremendous support. She truly is the rock of our family.
Freedom of expression is one of the cornerstones of our great democracy, a cornerstone which is eroding away due to unnecessary censorship by an overzealous bureaucracy. Regulating speech is a dangerous idea and not compatible with the principles of a free society. As Thomas Jefferson said, “the only security of all is a free press”.
My private member's bill C-304 would help protect and enhance this fundamental freedom, because without freedom of speech, freedom of religion and freedom of assembly hold no value. Freedom of speech truly is the bedrock upon which all other freedoms are based.
Bill C-304 calls for the repeal of section 13 of the Canadian Human Rights Act in order to ensure that freedom of speech is preserved and promoted through an open, transparent and democratic process, which is the Criminal Code of Canada.
Section 13 of the Canadian Human Rights Act has been a contentious topic for a number of years. It has been widely acknowledged that it impedes section 2(b) of our Charter of Rights and Freedoms which states that every individual has the fundamental freedoms that are “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.
This conflict between section 13 of the Canadian Human Rights Act and section 2(b) of the charter was reaffirmed in 2008 by Professor Richard Moon, who was hand-picked by the Canadian Human Rights Commission to review this act. Professor Moon clearly stated, on page 31 of his report, “The principal recommendation of this report is that section 13 be repealed so that the censorship of Internet hate speech is dealt with exclusively by the criminal law.”
Professor Moon goes on to highlight a quote from the Cohen Committee, which states that “No civil statute can create a moral standard equivalent to that of criminal law”. This quote perfectly summarizes the unparalleled ability of the Criminal Code to properly address sensitive issues while maintaining a balanced approach.
It is also important to note that the conflict between section 13 and the charter was reaffirmed in 2009 by the Canadian Human Rights Tribunal itself, which found section 13 to be unconstitutional.
Since Bill C-304 was first introduced in the House of Commons I have had opportunities to attend a number of conferences and annual meetings across Canada to discuss the content of the bill, the repealing of section 13 and the implications that it would have on our country.
Most people were astounded when they heard for the first time that our fundamental freedoms can be overruled by a quasi-judicial body that feels that something someone said was likely to have exposed another individual or group to hatred or contempt. That is right, the individual simply had to feel that it was likely to do this.
Canadians find it difficult to believe that such a loosely written and vague law has the power to undermine the fundamental rights that Canada so proudly bases its democracy upon, which men and women have given their lives defending.
While section 13 of the Canadian Human Rights Act may have been implemented with well-meaning intentions in an effort to combat discrimination and hate speech, the actual implications reach much further, chilling free speech and stifling the growth and development of our society. It is in this zone of ambiguity and the ripple effect that section 13 creates that we should all be concerned. Subsection 13(1) states:
It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
There is it right there: “any matter that is likely to expose a person”.
Subsection 13(2) goes on to extend this law to matters that are communicated by means of computer and the Internet. What this really means is that the Canadian Human Rights Commission and Canadian Human Rights Tribunal only have to feel that one is “likely” to have offended someone. This is not a narrowly defined legal definition, which would be far more appropriate.
Under section 13 of the Canadian Human Rights Act, truth is not a defence and intent is not a defence. One no longer has the right to due process, the right to a speedy trial or the right to an attorney. It is alarming that until recently the Canadian Human Rights Tribunal had a 100% conviction rate. This is not a sign of vindication; rather, it neglects to acknowledge that 90% of defendants fail to obtain legal advice because they simply cannot afford it, while at the same time the legal costs of the plaintiffs are fully covered. This is simply un-Canadian.
As a boy born and raised in northern Alberta, I have grown up obsessed with hockey. My son has followed in my footsteps. His favourite hockey player is Sidney Crosby of the Pittsburgh Penguins. I often compare this scenario to a hockey game. Placing well-paid human rights lawyers up against defendants who generally have little to no background in the legal field is like placing a recreational hockey team up against Sidney Crosby and the Pittsburgh Penguins and being surprised when the professional team wins again and again and again. This approach simply makes no sense, as the tables are obviously tipped in favour of the professional team or, in this case, the human rights lawyers.
These are not the characteristics of an open and democratic society that promotes equality and fairness. These basic provisions of law are considered to be natural rights by Canadians and are provided to any other individual in any other court in Canada under the Criminal Code. This is a clear depiction of what happens when censorship and bureaucracy are allowed to run amok. This is one of the reasons I have introduced Bill C-304, protecting freedom, in an effort to reconstruct freedom of expression as a cornerstone of our great country.
To achieve this, complaints must be directed to a fair, open and transparent judicial system, not a broken system that prides itself in operating behind closed doors.
By repealing section 13 from the Canadian Human Rights Act, we would give back to Canadians the right to be offended, and individuals will have the recourse to hate speech through the Criminal Code of Canada. The continued use of the Criminal Code to address hate messaging would ensure that all individuals are protected from threatening, discriminatory acts while preserving the fundamental right to freedom of expression. It would give back the right to fair, open and transparent trial and the right for people to face their accusers. It would make defences such as truth or intent allowable. It would even give back the right to recover costs should the claim be dismissed.
True hate speech is a serious crime and one that needs to be reviewed by a real court and investigated by real police officers. The Criminal Code has been tried and tested. It is ingrained with a system of checks and balances, a system to which society has entrusted its fundamental freedoms, a system society has seen as fit to enforce the rule of law in our great country. Justice is not served when it is hidden in the dark alleys of quasi-judicial bodies.
The solution here is not to take a band-aid approach and address the superficial inadequacies of section 13, as some have suggested. The fundamental deficiencies and broken structure would still be there if we did that. These issues cannot simply be fixed through amendments, as section 13 would still be imposed under the discretion of a subjective, quasi-judicial system, and the fundamental principles that guide the implementation of section 13 would continue to create a two-tiered system of hate speech in which one form of hate speech would be deemed worse than another. This is simply not appropriate.
Hate speech is a very serious issue and must be dealt with appropriately, with police investigations and appropriate penalties. True hate speech, speech intended to incite hatred and subject persons of an identifiable group to harm, deserves more than a slap on the wrist and should be carefully examined under the Criminal Code, which already contains hate speech provisions and which is a far more appropriate fit.
Opponents of my private member's bill have voiced their concerns on multiple occasions regarding the burden of proof associated with the Criminal Code being too great and too cumbersome. I would like to take this opportunity to address this argument one more time.
The burden of proof under the Criminal Code is indeed more comprehensive; however, I would argue that due to the seriousness of these allegations, it is in fact far more appropriate to apply the standard of proof beyond any reasonable doubt than the standard of a balance of probabilities. What my opponents fail to recognize is that in the highly subjective system currently employed by section 13 of the Canadian Human Rights Act, the standard of proof only becomes a significant issue when facts are actually disputed. My question in return is this: should facts not need to be concrete prior to overruling a fundamental right protected by the Charter of Rights and Freedoms, protected by our forefathers?
I believe the solution is to use the laws we already have and to provide authorities with the tools and support necessary. This step would ensure a successful transition in which true democracy and freedom of speech can thrive so that society can continue to grow and adapt peacefully in our country. It is through freedom of speech and expression that we change governments, not through riots and revolts. It is how we test societal norms and successfully develop our nation. It is through freedom of expression that we have shaped, and will continue to shape, our great country.
As I have stated before, this is an issue for all Canadians. Freedom of speech is equally important whether one is in the opposition or the government. This is not an issue of blue versus orange or red. This is not an issue of right versus left. This is an issue of freedom, transparency and balance for all Canadians.
With that, I would like to challenge all members to look beyond the intent of section 13 of the Canadian Human Rights Act and truly examine its structure and implications and consider what we, as a free and democratic country, are willing to give up. It is time to take a stand to protect our fundamental freedoms and ensure that our children and future Canadians are not denied these basic rights through unnecessary censorship and bureaucracy.
Canadian Human Rights Act
Private Members' Business
May 9th, 2012 / 5:30 p.m.