Bill C-304 (Historical)

An Act to amend the Canadian Human Rights Act (protecting freedom)

This enactment amends the Canadian Human Rights Act by deleting section 13 to ensure there is no infringement on freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms.

Canadian Human Rights Act

[The Speaker, Conservative, Andrew Scheer]

The House will now proceed to the taking of the deferred recorded division at second reading of Bill C-304 under private members' business.

The House resumed from February 14 consideration of the motion that Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom), be read the second time and referred to a committee.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Mr. Speaker, I know the member for Malpeque does not like open and free debates. That is why he tried to hold western Canadian farmers away from freedom for so many years.

I will now take the time to address some of the concerns of opposition members.

Members of the Liberal Party have come forward today and said that section 13 is very important and that protecting against hate speeches is critically important, but that it is not so important that we should actually have any penalties for those who break it. That is actually what the Liberals came forward today and said.

Every member of the NDP caucus who has stood has used the excuse that the burden of proof under the Criminal Code of Canada is too great and that it is too complex. They propose that we have two tiers of hate speech. I, for one, do not necessarily understand that. I do not understand how we can have one tier of hate speech that is worse than another tier of hate speech.

When we talk about the burden of proof and trying to make it easier, what we are giving up as Canadians are some of our natural rights as Canadians. What they are asking Canadians to give up is the right to an attorney, the right to a speedy and fair trial, and the right to face our accuser. Heck, they are even saying that we should not have the right to defend ourselves with the truth, that the truth should not be a defence in this country.

When my constituents hear about this and they hear about these quasi-judicial courts, they are absolutely appalled. That is why I believe it is important that we, as Canadians, stand up and defend our civil liberties and say that it is time to repeal section 13 of the Canadian Human Rights Act and ensure that these types of trials happen in an open, fair and transparent system called the Criminal Code of Canada where there are checks and balances that Canadians have already approved.

The core message of Bill C-304 is protecting freedom.

The last thing I will address is the hesitancy on the opposition benches. I know there are a lot of new members of Parliament in this place but when I look at the weak arguments of burden of proof I see people who have already been told by their whip how they will vote so they need to formulate a reason for voting against it.

What I would ask members on the other side to do is to please throw off the shackles of their whip. This is a private member's bill. I would ask them to please stand and vote the conscience of their constituents. I have consulted my constituents on this bill. I hope all members will consult their constituents before they take the time to vote on this because protecting our freedom of speech is one of the greatest things we can do in this country.

[Rick Dykstra, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, I have waited all day for the opportunity to speak to this bill. I am certainly honoured to speak to Bill C-304, put forward by the member for Westlock—St. Paul. I recall, as will the member for Windsor—Tecumseh, back in the 39th Parliament, when he and I both served on the justice committee, I had moved a motion to have the committee do a complete and fulsome review of section 13 of the Canadian Human Rights Act for the very reason we are speaking about today, to repeal that portion of the act.

When I was appointed as parliamentary secretary, I was no longer able to sit on the justice committee. Obviously, as the Parliamentary Secretary to the Minister of Citizenship and Immigration, I had new responsibilities.

I certainly want to congratulate the member for Westlock—St. Paul. Upon being named to the justice committee in the 40th Parliament, he immediately picked up the issue, pursued it and moved forward with it. After three years of doing a lot of work on the issue he has introduced his private member's bill. I commend him for his efforts in pushing forward on this very important legislation as a private member. We all know how few private members' bills actually move forward and receive royal assent and are enacted. It is a special opportunity that he has. He has done a tremendous job to get his bill this far.

I also want to speak to the point the member for Windsor—Tecumseh made. He spoke about having two tiers when it came to freedom of speech, that there somehow needs to be two tiers in terms of deciding what is or is not hate speech. I find that phrase to be extremely ironic when it is the belief of both the member and his party that there should not be a two-tier health care system, that there only needs to be one tier, that being the health care system we now have in this country which all of us believe in. However, when it comes to freedom of speech, two tiers is not only something he spoke about but something he thinks needs to exist. I think it is a dichotomy. I would hope the member for Windsor--Tecumseh would think a bit about the statement he made this afternoon in terms of, in one case two tiers not being okay yet being acceptable in another case. Either it is or it is not. He cannot have it both ways.

The Canadian Human Rights Act is intended to prevent and resolve cases of discrimination. It is not criminal law. Yet section 13 has subjected many Canadians to a quasi-judicial process for making statements that are not hate speech. Section 13 is simply not an appropriate or effective means for combatting hate propaganda. The Criminal Code is the best vehicle to do so. Intentional wrongdoing is within the scope of criminal law and there are already hate propaganda offences within our Criminal Code. It is an offence to incite hatred by communicating statements in any public place against any identifiable group where such incitement is likely to lead to a breach of the peace.

It is also an offence to wilfully promote hatred by communicating statements, other than in private conversation, against any identifiable group. These are criminal offences. They are committed only if the speaker acts with criminal intent. Because they are criminal offences, they carry the full procedural protections of the criminal law, the due process that section 13 simply lacks.

Under similar provincial legislation, John Fulton, a business owner in my riding of St. Catharines, was accused of discrimination. The charges were eventually dropped against him but John was left with legal bills of roughly $150,000 and he did not have the chance to defend himself. He was never given that opportunity. In fact, the Ontario Human Rights Tribunal then said that he had no right to compensation for legal expenses, even though the charges and allegations were completely and utterly dismissed.

Section 13 puts too much onus on defendants. Defendants are not always permitted to face their accusers. Normal standards for the validity of evidence do not apply. The government funds the plaintiff but the defendant is left to himself or herself. Most disturbingly, the absolute truth is not an acceptable defence. With all of these advantages, people have been able to plainly and simply take advantage of this part of the act. Who and what is censored by section 13 depends on who has the time and resources needed to pursue a section 13 complaint.

If the point of a section 13 complaint is only to pursue the speaker, then this should be done in a more formal system with better procedural safeguards. I am standing in this House to ensure that the people of St. Catharines, people like John Fulton, do not have their life and reputation damaged by this well-intentioned but seriously flawed legislation.

We all recognize that a law against hate propaganda is necessary to prevent the evils of discrimination. That exists within the Criminal Code. Section 319 of the Criminal Code contains two hate propaganda offences. These offences do not cover as many groups as section 13. For example, hate speech based on national origin, age, sex and mental or physical disability is not covered. It is for this reason that our government introduced an amendment to fill this gap. We are amending section 319 of the Criminal Code to add national origin, age, sex and mental or physical disability to the definition of identifiable groups.

I had an opportunity to speak to section 319 of the Criminal Code very recently. This means that it would now be a criminal offence to publicly incite and wilfully promote hatred based on these grounds. This means that our government is protecting the rights of minorities while preserving the right of free speech.

Dean Steacy, the lead investigator at the Human Rights Commission, once testified that freedom of speech was not given any value. That is unacceptable. The best way to fight bigotry is to ensure that we protect and enhance our fundamental freedoms. We must especially protect freedom of speech, which is the very bedrock of our parliamentary democracy and the democracy of this country.

In practice, section 13 is conflicted with section 2(b) of the Charter of Rights which guarantees that everyone has freedom of thought, belief, opinion and expression. While charter rights are subject to reasonable limits prescribed by law, section 13 does not clearly describe these limits and this has led to highly subjective interpretations of freedom of expression.

The wording in the Human Rights Act leaves it so unclear as to what constitutes an act of hatred or contempt that former Liberal member of Parliament, Keith Martin, rightly described it as “a hole you could drive a Mack truck through”. This is why section 13's overly broad hate speech provision was ruled to be unconstitutional in 2009.

We need the Canadian Human Rights Act to preserve our rights, not to take them away. We cannot allow one badly written section to undermine a defendant's right to due process and the free speech of every Canadian.

On behalf of people, like John Fulton, who have had their rights challenged by the Human Rights Commission, I ask all members of this House, regardless of party and partisanship, because it speaks to the freedom, the very bedrock of our democracy, to support Bill C-304. We will create a system where charter rights like freedom of expression and due process are valued and minorities are protected by our Criminal Code.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I look forward to speaking on Bill C-304. I have a great deal of experience with this in a number of ways, both here as a parliamentarian and at one period of time in my professional career as a lawyer.

In its simplicity, although Bill C-304 has other sections in it, it is really about the repeal of section 13 of the Canadian Human Rights Act. Members have heard this from a number of speeches so far. Clearly on the part of the mover, and I would say generally by the Conservative Party, it is an attempt to appease some of their right-wing ideologues, in the media in particular. It is also in keeping with their right-wing ideology of a society that has no government intervention.

For those of us who support section 13 of the Canadian Human Rights Act, it is about recognizing the nature of what Canada is, what it always has been. At its best, section 13 is what Canada is really about.

We hear demeaning comments from the right wing in this debate that it is really about minor sensitivities that are being offended. However, that is not what section 13 is about. It is about giving the Canadian Human Rights Commission the right to regulate and impose sanctions against people who are prepared to make statements in public, and the big debate more recently has been around telecommunications, statements that are on, and I quote from section 13(1):

...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.

It is talking about statements in writing, over the Internet and electronically communicated that will identify groups and draw hatred and contempt to those groups. That is what section 13 is about. It is about prohibiting that type of behaviour.

We hear from the Conservative side that we can deal with this by the hate propaganda sections of the Criminal Code, specifically section 318. I know that section very well. To my knowledge, there has only been six cases that were ever prosecuted under that section. I successfully defended one of the charges.

I have to say that it is relatively easy to use section 318 in defence of all sorts of heinous types of conduct. However, depending on that section to protect vulnerable groups who are the subject of contempt and hatred is like using the mace to tap in a small nail. It is a gross overreach.

Section 318 came into effect sometime in the late 1960s or early 1970s. It has been in existence for over 40 years now, but has only been used six times, and the penalties are quite severe. It requires that every case be approved by the attorney general of the province to allow it to be used.

In defence of section 13, it is a mechanism to help protect vulnerable groups in our society. I think of members of the Jewish community who have historically been a target for anti-Semitic attacks. More recently, members of the Islamic community has been subject to attacks because of their faith. I think of members of Afro-Canadian communities who have a lengthy history of being attacked because of the colour of their skin or continent that they come from. We can go down the list.

There are problems with the Canadian Human Rights Act, but they can be fixed. Amendments could be brought forward that would reform it. We need to develop the jurisprudence around this section. We have not done that very well up to this point, I will admit, but that can be remedied.

We need two levels. We need the Criminal Code for the more severe types of hate propaganda and so section 318 should remain. It is working for the purpose for which it was designed. However, it is not designed to deal with this type of hatred or contempt brought against identifiable groups. Section 13 of the Canadian Human Rights Act is to be used for that purpose. We should be supporting it, maybe with some reform.

We need two tiers in order to have a free society for individuals who are regularly targeted by anti-Semitic or anti-Islamic people. We can include homophobia as well. There are a number of areas where the language used draws hatred and contempt to an identifiable group. Canadians as a society are saying no, that it not the kind of society we want. We want an organization or tribunal to be able to express our contempt for those who are prepared to do that, put a stop to the use of that kind of material and impose some type of penalty to express the revulsion that society feels for people who are prepared to use discriminatory, hateful language against other identifiable groups in our society. We need both tiers.

I am sorry, Mr. Speaker, I am finding it very distracting.

[Maxime Bernier, Conservative, Minister of State (Small Business and Tourism)]

Mr. Speaker, I am very pleased to rise here today to support Bill C-304, introduced by my hon. colleague from Westlock—St. Paul. I would like to congratulate him on this bill. This member is standing up for our freedoms, particularly freedom of opinion and freedom of expression.

I can say that my political career has been somewhat tumultuous, but my goal has always been to defend individual freedom and responsibility. I am proud to be from Beauce, a region that promotes these values, which form the foundation of western society. Today we are speaking about individual freedom, and I am pleased to support this bill.

Freedom of expression is the essential foundation of a free and democratic society. We cannot reject this freedom of expression simply because we do not like what someone is saying about us or about society. We judge a society by its constitution and by its laws. I am proud to be Canadian. I am proud of the Canadian Constitution. In my political activities, I always try to act in a way that respects our Constitution.

We also have a charter, the Canadian Charter of Rights and Freedoms. Paragraph 2(b) of the Canadian Charter of Rights and Freedoms defends and promotes freedom of opinion and freedom of expression. We need to listen to Canadians. Canadians care about respecting freedom of opinion and freedom of expression. If someone stands up and says something that I do not agree with, the most important thing for me, as a politician, is to be able to have a critical, open and honest debate and to inform the public. In our society, some people engage in hate speech and say discriminatory things about certain groups. Section 319 of the Criminal Code prohibits hate propaganda. The Criminal Code is the best tool for this. Section 13 of the Canadian Human Rights Act will not achieve this.

I just heard the opposition member say that the Supreme Court, the highest court in the land, had declared that section unconstitutional and had said that it would like to see changes to section 13. We would like to repeal it, because we know that the Criminal Code contains a provision, section 319, that will reassure Canadians when it comes to hate propaganda against particular groups.

Section 13 is too subjective. It does not give Canadians a general or a specific idea of what they should or should not say. The civil and criminal courts should determine that.

We have a provision that assures Canadians that hate propaganda will always be dealt with as it should be, under the Criminal Code.

Why repeal section 13? It is not a matter of criminal law. In the case of hate speech, you must prove that there was the intent to harm a group, the intent to incite violence, the intent to disturb the peace, and the intent to incite commission of a crime. Inciting violence against a group is a crime. Under section 13, the intent of the individual engaging in hate speech is not considered. For that reason, as a free and democratic society, we must repeal this section, which has been challenged in the courts on a number of occasions. Several cases have been cited in these debates. It is time to abolish this section, and it is our role, as legislators, to introduce legislation that promotes freedom of expression and to ensure that the courts have the tools to fight groups or individuals that communicate hate towards other groups.

Under the Criminal Code, it is an offence to incite hatred by communicating statements in any public place against an identifiable group where such incitement is likely to lead to a breach of the peace. It is also an offence to wilfully promote hatred against any identifiable group, other than in private conversation. That is why I feel very comfortable supporting my colleague's bill to repeal section 13 and to depend solely on the Criminal Code.

This is an important day for freedom of expression, and I hope that many of our colleagues opposite will share this point of view. We must promote freedom of expression, and it is possible to do so by repealing section 13. I am convinced that perpetrators of hate crime in Canada will be brought to justice under the Criminal Code.

A number of complaints have been filed under section 13 in an attempt to restrict freedom of expression. With the passage of this bill, we will be able to reassure Quebeckers and Canadians that their freedom of expression will remain protected. No one will be able to use section 13 to restrict their freedom of expression.

We must also reassure Canadians that hate speech against other groups will still be dealt with under the Criminal Code.

It is important to promote freedom of expression. That is an important part of the Canadian Charter of Rights and Freedoms. I have a very hard time understanding why some of the opposition members do not support this bill. This bill is critical to a democratic society, and our society depends on freedom of expression. We have to express ourselves here every day. We can express different points of view in the House. The opposition certainly shares different points of view on its vision for this country. We have useful debates, debates that Canadians need to be able to have in public without a sword of Damocles hanging over their heads. They should not fear being the subject of a commission inquiry because they have said things that some consider hateful but that are not hateful under the Criminal Code.

Today and in the days to come, by voting in favour of this bill, we will show Canadians that freedom of expression is important to us and that we will continue to protect it. As a politician who believes in individual freedom and responsibility, I certainly support my colleague's work and congratulate him on it. He is standing up for his constituents and defending values and principles underlying Canadian society. I am very proud to support his bill, as are the other members of my party. Today is a great day, and I hope that this bill will come into force as quickly as possible.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Mr. Speaker, I am pleased to speak to Bill C-304 and offer my thoughts on why I oppose the repeal of section 13 of the Canadian Human Rights Act, an opposition rooted in the collective responsibility of parliamentarians to eliminate hate speech in Canada. This responsibility does not begin and end with the prosecution of criminal cases of hate propaganda and incitement to genocide, as the member for Westlock—St. Paul and the Minister of Justice have suggested. The promotion of equality and minority rights obligates us to also ensure that an appropriate civil remedy exists for cases of hate speech that do not meet the criminal definition.

I am not suggesting that section 13 is perfect. Indeed, that section is problematic.

The main point I would like to make here today is that the principle behind maintaining section 13 deserves the support of all members. However, instead of repealing section 13, we should make the necessary changes to the Canadian Human Rights Commission, as that organization and the Canadian Bar Association have suggested.

We should be seriously asking ourselves why the Conservative government refuses to make the proposed changes and prefers instead to repeal section 13. I would also like to add that this debate is premature anyway, since the matter is still before the courts.

That is not to say that section 13 as currently written is without problems; it is not indeed. However, the central point I would like to make today is that the principle behind retaining section 13 is worthy of the support of members, and that rather than voting to repeal section 13, we should be making the necessary changes to the Canadian Human Rights Act, as suggested by various groups, including the Canadian Bar Association and the Canadian Human Rights Commission itself.

The summary of Bill C-304 explains:

This enactment amends the Canadian Human Rights Act by deleting sections 13 and 54 to ensure there is no infringement on freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms.

I note there is nothing in the bill about the promotion of equality and minority rights.

In its written submission to the Standing Committee on Justice and Human Rights in January 2010, the Canadian Bar Association, CBA, explained the vital role that human rights commissions play in eliminating discrimination based on race, religion, gender, disability, sexual orientation, and other groups, and in advancing equality. The brief remarked:

Leading media outlets in this country have advocated the abolition of section 13 with no acknowledgement of the value the provision brings to enhancing civic discourse in Canadian society.

Of greater concern to the CBA is the fact that the debate surrounding the expediency of section 13 has become the proxy for an open assault on the very existence of an administrative framework to protect human rights in the country. Critics have decried human rights proceedings as “kangaroo courts” which provide only “drive through justice” and advocated that human rights tribunals and commissions should no longer be permitted to operate. We reject attacks of this kind and reiterate forcefully our support for the continued importance of the work undertaken by these human rights bodies to foster human rights in Canada.

When the member for Westlock—St. Paul spoke to this bill on November 22, 2011, he argued:

Freedom of speech is the bedrock upon which all other freedoms are built and, therefore, is too precious to leave under the thumb of censorship imposed by this system. Without freedom of speech, what good are our other freedoms, we may ask.

This argument, however, ignores the fact that there is no hierarchy of rights, as Barbara Hall, the chief commissioner of the Ontario Human Rights Commission, has said.

For its part, the CBA has explained that freedom of expression in Canada is not an absolute value and that the CBA endorses the view that a properly drawn civil prohibition against the propagation of hate speech is also a reasonable limitation on freedom of expression.

Put another way by my colleague, the member for Mount Royal, all free and democratic societies, including the United States, have recognized certain limitations on freedom of expression in the interest of protecting certain fundamental human values.

As members consider Bill C-304, they should remember three points.

First, as I have established, freedom of expression exists within the context of limitations. The charter itself in section 1 allows for limits on rights.

Second, the Supreme Court of Canada has already ruled on the constitutionality of section 13 in its 1990 decision in the Taylor case, in which the court concluded:

[Section] 13(1) is a justifiable limit on freedom of expression within the meaning of s. 1 of the Charter. Hate propaganda undermines the dignity and self-worth of minority racial and religious groups and erodes the tolerance and open-mindedness which are essential in a multicultural society. The purpose of s. 13(1) is to promote equality and to prevent the harm which hate propaganda causes to targeted groups. This is a pressing and substantial concern. It is of heightened importance because it is supported by other sections of the Charter, namely ss. 15 and 27, and by international human rights instruments to which Canada is signatory.

Third, while the Minister of Justice has argued that section 13 is not an appropriate or effective means for combatting hate propaganda and that the Criminal Code is the best vehicle to prosecute these crimes, the Criminal Code sections on hate speech and section 13 are intended to be complementary and serve different purposes.

Here is how the CBA explains it:

The criminal prohibition in section 319 of the Criminal Code sets an extremely onerous standard. This is appropriate since a criminal conviction for hate speech, like any other criminal offence, carries with it social stigma and a criminal record. Section 13 is for a different purpose (providing remedies to target groups for harm, fostering greater respect for target groups, and changing behaviour), and also applies to conduct that falls short of criminal behaviour but nevertheless poses harm to vulnerable groups.

The CBA concludes:

Given the importance of freedom of expression, it is appropriate that there be a range of options for society to respond to expression that causes harm. Criminal sanctions should be reserved for the worst cases, rather than the only option.

For these three reasons, I believe that a civil remedy for hate speech must continue to exist within human rights legislation. However, as I mentioned at the outset of my remarks, there are indeed legitimate concerns about section 13 as currently written. While there is not sufficient time to explain each one, I feel it is important to list the various amendments to the Canadian Human Rights Act that have been suggested.

As my colleague from Mount Royal has suggested, the CHRA could be amended to include a built-in filtering mechanism through the requirement of the consent of the Attorney General of Canada for launching any prosecution, as currently exists in the Criminal Code, to ensure that only the most serious cases go forward.

As the CBA suggests, complaints should only be made in one jurisdiction at a time instead of the current practice of simultaneous federal and provincial complaints.

Moreover, as the CHRC has suggested to Parliament, we could add a statutory definition of hatred and contempt in accordance with the definitions offered by the Supreme Court in the Taylor case, as well as a provision to allow for the early dismissal of a section 13 complaint that does not meet this definition.

An additional amendment could also allow for the costs to be awarded in cases of abuse of process. The right to face one's accuser could also be added to act. Finally, the current provision that allows the Canadian Human Rights Tribunal to assess penalties should be removed in order to retain the remedial, and not punitive, nature of human rights law.

I urge the members to chose this path and ask the government to amend section 13 rather than repeal it.

Last month, an intern in my office from Toulouse, France, Olivia-Kelly Lonkeu, gave a presentation on Bill C-304. In her remarks, she said the freedom of speech did not give the right to vilify and had to be used wisely without undermining Canadian values of equality, tolerance and fairness. To be free meant to be respected as well as to respect others, and in that sense one's freedom should not harm the freedom of another citizen. Simply put, one's personal freedom ends where another's begins.

I could not agree more.

[Mylène Freeman, NDP, Argenteuil—Papineau—Mirabel, QC]

Mr. Speaker, the bill before us today unfortunately threatens the preservation of our flourishing pluralistic society. I say this because we can only truly have freedom when every individual of every community is able to participate in the public sphere without fear of confronting violence. This is the purpose of section 13 of the Canadian Human Rights Act. It does not impose unreasonable limits on the freedom of expression. Rather, it is a balance of each individual's freedom to live in society without fear.

Hate speech insidiously reinforces prejudices. It is a practice of inequality that is inconsistent with freedom. That is, it inhibits individuals from reaching their own full potential, and therefore, I argue, inhibits our society from reaching its potential.

Disseminating messages of hate via telecommunications technology is dehumanizing. It reinforces prejudice, encourages hate, and may even prompt or be perceived to justify physical violence. Not just that, but messages of hate are themselves a sort of violence, a communication of widespread violence that causes harm to us all by dividing us through the act of dehumanizing others.

This is why it is necessary that we maintain section 13 of the Canadian Human Rights Act. The commission deals with hatred, not with criminal acts of violence, and gives society's most vulnerable minority groups access to a mechanism of defending their rights as equal human beings.

Religious minorities, women, queer folk, visible minorities, persons with disabilities, recent immigrants, they are the ones who are most often targeted by the dissemination of hate, and are often the people who suffer from multiple forms of systemic inequality, including poverty and exclusion from the legal justice system. They may lack the financial and legal supports to persist in a legal case, and in the meantime, without section 13, their victimization would be allowed to continue unhindered.

This is why we have the Canadian Human Rights Act. It provides precipitous protection from dangerous violations of human rights abuses. It would not exist if those who needed protection were already being effectively protected.

Section 13 protects against images, words and opinions of hate, which is to say racism, targeted discrimination, homophobia, and grotesque and misleading imagery or information. This is a kind of violence and we need to be able to say as a society that we cannot accept this.

There needs to be a balance struck between the principles of free speech and protection from hate speech and propaganda. This is why we have a tribunal to inquire into reported incidents.

The law is specifically structured to account for the moral grey zone that can occur in cases of hate. When weighing the rights and freedoms of one person or group against another's, there must be room for variance and for each case to be adjudicated in its specificity. The Canadian Human Rights Act, including section 13, is a vehicle for exactly that process. If we allowed it to be disabled by Bill C-304, in cases where violence is being perpetrated victims would be unable to protect themselves using the Canadian Human Rights Tribunal.

Freedom of speech is not an unlimited freedom. The pursuit of liberty understood as self-realization requires the balancing and limiting of other freedoms, in this case, that of speech.

This debate is about the balance of freedoms and duties that we have as citizens. Section 13 of the Canadian Human Rights Act represents a duty that we have to other citizens to not limit their freedoms. That is, it allows for people to not be discriminated against and therefore to realize their own purposes.

This is a form of liberty, and it is precisely the act of balancing this liberty with the freedom of speech that gives us the opportunity to live as a truly free and pluralistic society.

Yes, the Constitution protects freedom of expression, but it also protects the safety and liberty for all. Hate groups terrorize, threaten, stifle public participation and target the most vulnerable members of society.

I urge members of the House to consider the needs and rights of their constituents who are targeted by hate crimes before voting in favour of this legislation.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Mr. Speaker, it is indeed an honour and a pleasure for me to continue my comments with respect to Bill C-304, an act to amend the section 13 of the Human Rights Code.

I will briefly sum up some of my observations. The last time I spoke, I commented on the importance of freedom of speech and how freedom of speech was one of the fundamental concepts that we enjoyed in western democracies such as Canada. However, some of the members opposite talked about the limits of freedom of speech, which I acknowledge they are there and they are important. The torts of slander and libel, criminal prosecution for perjury and the hate provisions of sections 318 to 320 of the Criminal Code I believe adequately form a check and balance on free speech that crosses the line, especially 318 and 320, which talk about hate speech.

What section 13 of the Human Rights Code purported to do was create a counterfeit right against hurt feelings. The sponsor of the bill has talked at some length about that not being a true right.

We need to be concerned as legislators of mechanisms that are designed to protect liberty which actually themselves become a threat to liberty. In my view, that is what we have with respect to section 13, which was intended to protect against hate speech on telephonic and electronically communicated messages. By that, we are really talking about the Internet in the modern age, which in and of itself has become a threat to free speech.

Ironically, there are media reports today of a situation in Saudi Arabia where a 23-year-old blogger has been sentenced to death for comments he blogged, partially on Twitter and in a blog, where he fancifully described an imaginary relationship that he had with the Mohammed. He described Mohammed more as a friend to him than as a deity. That offended the clerics in Saudi Arabia and this individual, for expressing those thoughts through his blog, has been sentenced to death.

Thankfully, the sanctions under section 13 of the Human Rights Code are much less tragic and severe than that which are imposed by the clerics in Saudi Arabia, but by analogy, members should be concerned that speech which some might find offensive is sanctionable. It is very much a difference of degree, not a difference of kind.

This place, Parliament, where we have unfettered free speech and cannot be subject to prosecution, has to deal with difficult issues from time to time. In fact, the last time the bill was before the House, almost at the exact same time there was a court case in British Columbia, where the Criminal Code sanctions against polygamy were under assault by an individual who had been charged with them.

The court in that case upheld the Criminal Code provisions banning polygamy in Canada, and in my view rightfully so, but it might have gone differently. The point is this chamber has to, from time to time, deal with contentious issues, issues that people believe strongly and they believe so because of their religion. Polygamy is an issue that some people subscribe to because of their faith.

If we are to have a fulsome debate on the definition of marriage, like this chamber had approximately eight years ago, it is impossible to do so without perhaps offending people and their religious values.

We have protection in this place, but what about the outside world? As we all know, the Internet and the social media have become the fluent marketplace of ideas, where people talk and comment and everyone who has a blog suddenly becomes an amateur journalist and an editorialist.

Almost all members of Parliament participate in these social media forms. I am on Twitter and Facebook, and I think most members are. These social media mechanisms have become important as we exchange ideas and engage public opinion to things that we are debating in the House.

It is hypocritical for members of the House not to support the bill. Section 13 prevents bloggers and people on the Internet from engaging in free speech as they could face prosecution simply because they offend somebody else's deeply held personal beliefs, such as freedom of religion.

I will close with a quote from one of my favourite prime ministers, the 13th prime minister of Canada, John Diefenbaker. When he introduced the Bill of Rights, he said:

I am a Canadian, free to speak without fear, free to worship in my own way, free to stand for what I think right, free to oppose what I believe wrong, or free to choose those who shall govern my country.This heritage of freedom I pledge to uphold to myself and all mankind.

A Canadian free to speak without fear; that freedom ought to be extended to people who communicate via the Internet.

I encourage all members to support Bill C-304 and repeal section 13 of the Canadian Human Rights Act.

The House resumed from November 22, 2011, consideration of the motion that Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom), be read the second time and referred to a committee.

Freedom of Speech

[Rob Anders, Conservative, Calgary West, AB]

Mr. Speaker, “I may not agree with what you say, but I will defend to the death your right to say it”. These were the words of Voltaire and it is in this spirit that I would like to voice my support for private member's Bill C-304 titled “An Act to amend the Canadian Human Rights Act” put forward by the member for Westlock—St. Paul.

Similar private members' bills have been introduced in the past, Keith Martin and the member of Parliament for St. Catharines deserve note.

Freedom of speech is a fundamental right that all Canadians should be able to exercise without a government watchdog. Many Canadians in the past have fought and died for our free speech. Many have already criticized section 13 of the Canadian Human Rights Act for its subjective and ambiguous nature.

Therefore, I encourage all parliamentarians in the House of Commons to support Bill C-304 and allow for true freedom of speech.

Telephone Calls to Mount Royal Constituents

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I will respond to the two interventions from the other side.

Some references were made to ten percenters. Mr. Speaker, your predecessor ruled that there was a prima facie breach of my privileges because of false and misleading ten percenters that were targeting households in my riding, at that time targeting only the Jewish households in my riding.

It is part of a pattern. I know the Conservatives covet the riding. I know they would like to win the riding of Mount Royal, but they have to do so on their merits, not by false, misleading, and prejudicial information as took place in the ten percenters, which your predecessor ruled was a prima facie breach of privilege, and with a repetition now with these false and misleading phone calls.

This is not a question of rumours of a byelection. We are all subjected to that kind of thing. People in my riding or in any riding might be asking their member, “I heard you might be resigning” or “I heard you might be going elsewhere”, or whatever. That is part of constituents sometimes asking a legitimate question to their member of Parliament. This is not what is being asked here.

These are constituents who have been told, in false and misleading phone calls, by an agency supported by the Conservative Party that there is an imminent byelection and that the member has resigned or is about to resign. It is not people coming up to me and saying they heard rumours as is part of the normal give and take. However, I should not have to be back in my riding this weekend and have people coming up and saying they were called and told that I had resigned or that they were called and told that there is an imminent byelection going on.

Under the principles of breaches of privilege, that is what is called “sowing confusion in the minds of the electorate”. That is what is called “impeding the member of Parliament in the performance of his duties”.

I can speak with my constituents in regard to rumour, but not when they are telling me that they are getting calls making statements of fact, when these are not statements of fact but false and misleading misrepresentations of fact. That is the fundamental difference. This is not a matter of chilling speech. The opposite member elevated this to absolute freedom of speech.

If we look at our whole constitutional law in this country, there is no such thing as absolute freedom of speech. We have laws with respect to limitations on speech with regard to perjury, so people can have a right to a fair trial. We have limitations on false and misleading advertising, directly on point, so the consumer can be protected against false and misleading advertising. We have laws against obscenity, so people can be protected with respect to their human dignity. I can go through the whole law of free speech. I happen to have a certain degree of expertise, having written on it and pleaded it before the Supreme Court.

This has nothing to do with free speech. This has everything to do with false, misleading, and prejudicial information held out in a representation to constituents and held out as if it were a statement of fact, clearly causing prejudice and clearly undermining the role of the member.

If the members opposite say that they are happy to see that I am very active and involved, yes I am active and involved. That is our responsibility as members, to be active and involved.

However, when constituents believe not only that we are not active and involved but that we are not even a member anymore, that we have stepped down or are about to step down, this transforms the entire relationship between the member and his or her constituents.

Equally, when I was asked this past weekend, after my constituents had heard that I had stepped down, I began to tell them about some of the things I was doing with respect to Bill C-10 in this House, which is somewhat ironic that we are speaking on this today or maybe not so ironic that we are supposed to enter into a discussion on Bill C-10. It is a nice diversionary approach on the government's part. However, let us leave that aside.

The point is that the members of my riding were not aware of the work that I have been doing and that was precisely what I said in my point of privilege. It is not only false and misleading but it overtakes and overshadows, and effectively obscures, if not excises, the work that I am doing and the opportunity to engage in what the government has called political dialogue. I would love to be in political dialogue. I do not mind criticism. I do not mind voters coming up and saying, “Your position on Bill C-10, we totally disagree with it”.

That is fine. That is fair comment. That is fundamentally different from a voter coming up to me and saying, “How come you are not even involved on Bill C-10? You are not even there”. That is where the prejudice is: the reduction of the member of Parliament as if he is no longer a functioning member of Parliament.

There is no knowledge of all the work that I have been doing in the last two weeks, whether it was standing in the House to speak to Bill C-304, a private member's bill on the issue of freedom of speech and hate speech, where I thought the intervention was important, or that I have undertaken the representation of an Egyptian blogger, a leader in the Tahrir revolution, now being played out in Egypt, to have been imprisoned for allegedly insulting the Egyptian military, a rather dramatically important case. My constituents had no knowledge of that. When I held a press conference in that case, the questions that I was asked by journalists were, “Are you resigning? Have you resigned? Is there a byelection?”

Therefore, it did interfere with my work. It interfered in my exchanges with the media. It interfered with my exchanges with my constituents. It interfered with the public perception of the work in which I was engaged.

I want to conclude by saying that there is no suggestion here that any speech be chilled or suppressed. What is suggested here is that I practised a misconduct that misrepresents matters that relate directly to the performance of members in their duties as members of Parliament.

To say that it does not address what is being done in this House, it addresses the capacity of members, not only me, to perform their duties in the House and as members of Parliament when outside the House with their constituents, among the public, the media and the like.

It has a pervasive and persistent prejudicial fallout impeding, if not prejudicing, the members in the performance of their duties. It comes directly within all the principles and precedents that I cited in my two statements respecting the request for a prima facie finding of a breach of privilege.

Canadian Human Rights Act

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Madam Speaker, it is an honour and a pleasure to rise and speak in favour of Bill C-304, an act to amend the Canadian Human Rights Act (protecting freedom).

Freedom of speech is a fundamental right enjoyed in all free and democratic societies.

I have listened carefully to the three members opposite who have expressed concern about my friend's bill, the sponsor from Westlock—St. Paul. Parliamentarians enjoy unfettered freedom of speech. In fact, Parliament is derived from the French world “parler”, meaning to speak. In this chamber and in its committees, we parliamentarians and any witnesses who appear before those committees have unfettered freedom of speech. It seems to me somewhat hypocritical that we would not offer to society, to people who write, to blogs and websites on the Internet, which falls under federal regulation, the same rights and privileges that we here enjoy in the Parliament of Canada.

My friend from Mount Royal, for whom I have a great deal of respect, is correct when he says that there are limits to freedom of speech.

There is no doubt that members are aware of the already workable remedies and workable limits with respect to freedom of speech. There are laws against perjury, the torts of libel and slander and, most important and most germane to this debate, sections 318 to 320 of the Criminal Code. Those are all real hate speech protections.

A distinction must be drawn between hate speech and hurt speech or the so-called counterfeit right of hurt feelings. One does not have a right against having his or her feelings hurt. I am sorry but that is not a right that exists in common law and it is not a right that exists in free and democratic societies.

The Criminal Code sanctions regarding free speech found in sections 318 to 320 require something more than hurt feelings. They require real and actionable hatred. If a person advocates genocide, destruction of a group's property or harm or damage to the person of that group, then that person has fallen offside the hate provisions of the Criminal Code, and, I would submit, rightfully so. However, that is something quite different than the so-called freedom not to be offended, or what my friend referred to as hurt speech.

Free speech, if it is to exist, cannot be subject to some bureaucracy. There is no such thing as government regulated free speech. Either there is free speech or there is not.

It is the very offensive speech that requires legal protection. This debate probably would not be occurring if there were not situations where individuals have said things that were truly politically correct, offensive and sometimes abhorrently so, but individuals have attempted to avail themselves to the charter protected rights in section 2(b) of freedom of expression. I would submit that it is that very offensive speech that requires protection.

Everything in life that is provocative is controversial. If we were to get into an intelligent debate about religion, Christianity versus Islamism, abortion, gay rights or even climate change, it would be impossible to have a thorough and meaningful debate without running the risk of offending somebody somewhere along that process.

A free society requires freedom of speech so that we can have a fluid marketplace of ideas, so that we can have give and take and exchange. Some of the ideas in that marketplace of ideas will not be popular and they will not be politically correct but they are important to further the debate. Society is actually moved forward over time because of freedom of speech.

Some things were politically incorrect in their time. For example, hundreds of years ago, when Galileo opined that the world was round, that was thought of as heresy at the time. However, he said it, people debated it and argued it and eventually they proved it.

It is because of the very freedom of speech that we are fighting for today by repealing section 13 of the human rights code that society can enhance itself with respect to enlightenment and with respect to determining truth that may not appear to be true at the present time.

So the very human rights commission that--

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Madam Speaker, it is a great privilege for me to stand in this House today and speak to Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom).

I fully support this bill as it protects one of our most important rights as Canadians, that being the freedom of speech. In my years on our House of Commons Subcommittee on International Human Rights, we often spoke out against repressive regimes around the world that trample the rights of their own citizens in the most severe ways, and yet, the fundamental right to freedom of speech is threatened here at home.

I am pleased that this bill proposed by the member for Westlock—St. Paul seeks to remedy just that. As members heard from my colleague before me, freedom of speech is a fundamental right that provides the basis for all other rights to thrive and succeed. Without free speech, citizens could not assemble publicly to peacefully demonstrate their opposition to government policies, an act fundamental to our democracy.

Taken further, one could say that without freedom of speech, we could not worship God, we could not practice our faith, we could not join unions or speak out during elections or at other moments of democratic participation. These are some of the very criticisms we have of totalitarian regimes.

We need only think of the recent events in Egypt and Libya, and the ongoing Arab spring, to understand that in the end freedom of speech must always prevail. Section 13 of the Canadian Human Rights Act is a direct attack on freedom of speech that is guaranteed to us under the Charter of Rights and Freedoms.

Section 13 of the Canadian Human Rights Act allows the Canadian Human Rights Commission to prosecute anyone allegedly to have said or written something likely to expose a person or persons to hatred or contempt, whether there is a living, breathing victim or not. In essence, this is like charging someone for the likelihood of breaking a law but not yet breaking the law.

For those who have seen the 2002 Hollywood blockbuster, Minority Report, some might say it is starting to go down that path. The movie stars, amongst others, are three psychics called precogs. It depicts an eery fictional future where the precrime department, along with super computers, labels criminals criminals before they even commit a crime. However, the system ignores its own flaws or minority reports, in the end labelling innocent people and marginalizing a whole subclass who fall outside of the societal norms as directed from the top.

While the movie is fictional, it takes the point to the nth degree. What is true in reality today is that section 13 is inconsistent with our democracy and our Criminal Code, which abides by the principle of charging someone after they commit a crime, not before.

If that is the principle our Criminal Code is governed by, why is this not the principle also central in the Human Rights Act? That is what this bill from the member for Westlock—St. Paul is aiming to do, bringing the principle of our tried and tested justice system to human rights, and consequently to the Canadian Human Rights Commission.

For a clear example of section 13 hindering free speech here in Canada, we do not have to look far. As the member for Westlock—St. Paul previously alluded to, the Canadian Human Rights Commission investigator, Mr. Dean Steacey, was asked what value he gave freedom of speech in his investigations. To me it was shocking that Mr. Steacey replied, “Freedom of speech is an American concept, so I don't give it any value. It's not my job to give value to an American concept”.

I take umbrage with that. Freedom of speech is very much a Canadian concept, one that we should be very proud of and, most importantly, in this second week after Remembrance Day, let us never forget the ultimate sacrifice made by thousands of Canadians from the trenches of Europe to the hills of Afghanistan so that we could enjoy so many freedoms, not the least of which is the freedom of speech but also so millions suffering in Europe during the two world wars and in other conflicts since could also be free.

The list of those affected and stifled by section 13 is long and encompassing. Every journalist, writer, webmaster, blogger, publisher, politician, and private citizen in Canada can be subject to a human rights complaint for expressing an opinion or telling the truth on any given issue.

With the ambiguity of section 13, it is virtually impossible for any person to determine whether they might be in violation of section 13. This, in a nutshell, creates a culture for censorship and punishment for those who dare speak their mind. This is wrong and cannot be justified in the free society that Canada credits itself to be. This is also unimaginable in a digital world that has reshaped how our society communicates. Is it possible that the 140 characters of a tweet could be misconstrued? Is it possible that a blog could be unduly censored?

Bill C-304 can and would fix this and that is why I am standing in this House today to support it.

There will be some who say that getting rid of section 13 of the Human Rights Act would open the floodgates to hate speech and the like. As the member for Westlock—St. Paul noted, sections 318 through 320.1 of the Criminal Code already prohibit hate propaganda, including paragraph 320(8)(e) which states “any writing, sign or visible representation that advocates or promotes genocide”.

There is nothing more vile in the world than hate propaganda. I have worked over the last few years to draw attention and take action on the rising threat of anti-Semitism for this very reason. Will some people say or continue to say things that are nasty, things that everyone in this House would find offensive? Certainly.

However, so long as it is not hate propaganda, should we not defend the right to say it, so that we are preserving the right of all people to speak their minds and, in doing so, thereby preserving our right to speak out against unsavoury speech?

In closing, I iterate the importance of free speech here in Canada. Our country was built on free speech. Our veterans have fought for free speech. Let us together as a House ensure that free speech is not hindered the way section 13 does today.

God bless Canada.

[Irwin Cotler, Liberal, Mount Royal, QC]

Madam Speaker, the notion implied in the private member's bill seeks to repeal section 13 of the Canadian Human Rights Act on the grounds that the sanctioning of hate speech dilutes and diminishes freedom of expression, which as I said elsewhere, is the lifeblood of democracy. I agree with the hon. member that this is a bedrock principle and I have always so affirmed.

However, the premise underlying the bill, while well intentioned, is misinformed and misleading. It seems to suggest that freedom of speech is an absolute right, but it does not admit to any limitation, ignoring that all free and democratic societies have recognized certain limitations on freedom of expression. The United States, for instance, is the home of the most robust protection of freedom of speech under the first amendment doctrine. As well, my mentor and professor, the then dean of Yale Law School, Abraham Goldstein, said that freedom of speech is not an absolute right, although people continue to persist that it is.

All free and democratic societies, including the U.S., have recognized certain limitations on freedom of expression in the interest of protecting certain fundamental human values. For example, 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. 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, to protect against those discriminatory hate practices that reduce the standing and status of individuals and groups in society thereby constituting an inequality, and this may surprise the member who sponsored the bill, to protect the very values underlying free speech itself.

I will cite the Supreme Court of Canada cases of Keegstra, Smith and Andrews, and Taylor. In full disclosure, I appeared as counsel in these cases and did so as a proponent of freedom of expression, as one who has advocated for this bedrock principle before the courts. I have written extensively upon it. Hate speech itself constitutes an assault on the very values that underlie freedom of expression.

This promotion of hate speech actually constitutes an assault on that bedrock principle of freedom of expression. Moreover, this is of particular relevance respecting any proposal to repeal section 13. I made this point before the Supreme Court of Canada in the trilogy of cases I referenced earlier.

Hate speech is an equality issue as well as a free speech issue. The promotion of hatred and contempt against an identifiable group results in prejudicial harm to the individual and group targets of that hate speech. This harm-based rationale, as the Supreme Court characterized it, supports the sanction of hate propaganda as protective of equality. As the court put it, the concern resulting from racism and hate mongering is not simply the product of its offensiveness, but from the very real harm it causes. The member for Gatineau illustrated this in her remarks this evening.

Further, referencing international law, these anti-hate provisions were themselves implemented as a domestic implementation of our undertakings under international law, under international treaty provisions, to combat hate speech. Again, I cite the Supreme Court, which said that the protection provided for freedom of expression in international law does not extend to cover communications that advocate racial or religious hatred.

Similarly, the court invoked section 27 of the Canadian Charter of Rights and Freedoms to argue that hate messaging as well constituted an assault on our multicultural heritage and normative principle.

Accordingly, I am pleased to participate in the debate on Bill C-304. The bill would repeal section 13 of the Canadian Human Rights Act. Its effect would be to prevent claims from being brought before human rights commissions, such claims as might protect against group vilifying speech while upholding the freedom of speech and the values that underlie it as well.

I understand that the government has concerns with section 13, but the response should be not to repeal the legislation on the alleged ground that it constitutes an assault on freedom of expression, a principle which I and many members in the House are long-standing advocates, while ignoring the countervailing protective need to protect against group vilifying speech.

Simply put, the solution is not through repeal of the legislation whose constitutional validity has been upheld by the Supreme Court, but to address the concerns and to offer proposals to modify the regime that is now in place. I would urge the government to consider the possible reforms to address any valid concerns which I will outline in my remarks as preferable to outright appeal.

As members may be aware, this very section of the Canadian Human Rights Act is now under review by the Supreme Court of Canada. This debate therefore, if I may say parenthetically, is somewhat premature. We should wait for guidance from this nation's highest court on the scope and ambit of freedom of expression before entering into this debate.

That said, the Supreme Court has already provided much guidance in this area. It has ruled that as a matter of constitutional law, hate speech constitutes an assault on the very underlying principles respecting freedom of expression. The search for truth, the protection of individual autonomy, democratic debate and stability, while protecting vulnerable groups from hate messages, it promotes and protects the fundamental principle of equality.

Even if it should be found to prima facie infringe on freedom of speech, as former Chief Justice Dickson put it in these cases, the infringement may be characterized as a reasonable limit prescribed by law demonstrably justified in a free and democratic society. It is in that context and spirit that I offer the following recommendations.

First, the Criminal Code to which reference has been made with regard to its hate speech derivatives, has a built-in filtering mechanism through the requirement of the consent of the Attorney General of Canada for launching the prosecution. I would recommend a similar filtering provision with regard to the Canadian Human Rights Act.

Second, procedural protection could be put in place to limited complainants to one jurisdiction at a time, rather than having as we now do a barrage of federal and provincial complaints that are instituted against the same individual or group, thereby serving as what has been called a strategic lawsuit against public participation, SLAPP, that can understandably serve to chill speech.

Third, we could add a statutory definition of hatred and contempt in accordance with the definitions offered by the Supreme Court of Canada in the Taylor case itself.

Fourth, we could include a provision under section 41 to allow for the early dismissal of section 13 complaints when messages do not meet the narrow definition of hatred or contempt.

Fifth, we could repeal the provision that allows for the assessment of a punitive sanction.

Sixth, we could implement better procedural safeguards in terms of the trial process and evidentiary standard.

Finally, other reforms the government might consider include allowing commissions to award costs, thereby dissuading persons from bringing forth frivolous matters. As well, the commission could also remove the possibility of an anonymous submission so that the right to face one's accuser is better respected.

In closing, we should be awaiting the Supreme Court decision before debating this. Nonetheless, given the Supreme Court decisions that we do have, the debate we should be having tonight should be regarding how we might reform and structure the human rights commissions to protect freedom of expression while protecting vulnerable individuals and minorities from hate and group vilifying speech rather than committing ourselves to abolishing the entire regime because it has produced results which can be addressed through positive reforms, as I have indicated this evening, which would address the member's concerns.

I would urge the government to rethink its approach and consider some of the reforms I have outlined in my remarks that are intended to protect the bedrock principle of freedom of expression and the values that underlie it, as well as to protect individuals and groups and vulnerable minorities from group vilifying speech.