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

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

moved 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.

Madam Speaker, it is an honour to be here to present a bill that is very near and dear to my heart and to the House of Commons.

I would like to begin by first thanking the people of Westlock--St. Paul for the trust that they have placed in me in a third consecutive election to bring forward their concerns in this august chamber.

I would also like to thank my friends and family for their support and dedication over the last six years; my parents for their willingness to always pitch in and help; my children, Ayden and Eastin, for their endless patience and love; and, most importantly, my wife Amel, who is my best friend and the rock that anchors our family. Without their love and support, this job would be so much more difficult.

I would also like to thank my colleagues, both past and present, who have stepped forward to support Bill C-304, protecting freedom.

While my bill will have some technical amendments at committee stage, it would help to protect and enhance our most fundamental freedom, and that is the freedom of expression and speech. As George Washington said, “If the freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter”.

Truly, without freedom of speech, what is the use of any other freedoms, such as the freedom of assembly or the freedom of religion?

The freedom of speech is the bedrock that all other freedoms are built on. This, along with the concept of natural justice and due process, has been woven into the fabric of our great country over the last 144 years. As we were reminded only a few short days ago during Remembrance Day, tens of thousands of Canadians have given their lives to protect these fundamental freedoms. That is why I stand before the House today.

Section 13 of the Canadian Human Rights Act eats away at this fundamental freedom. Most people are shocked when I explain to them that in Canada, right here in our own country, a person can be investigated under a section 13 complaint for having likely exposed a person or persons to hatred or contempt by reason of the fact that the person or persons are identifiable on the basis of a prohibited ground of discrimination.

The key word is “likely” to have exposed. I think we can all agree that this is a very subjective and unnecessarily vague definition, not one of the narrowly defined legal definitions that would be far more appropriate for this clause. This is where section 13 truly fails to make a distinction between real hate speech and what I often term as “hurt speech”, or speech that is simply offensive.

This means that if someone has offended somebody and is investigated under section 13 of the Canadian Human Rights Act, intent is not a defence. Truth is no longer a defence. The person would no longer have the right to due process, the right to a speedy trial, or even the right to a lawyer to defend himself or herself. In fact, in 90% of the human rights investigations under the Canadian Human Rights Act under section 13, the defendants do not even have legal advice, because they simply cannot afford it. When the people of Westlock--St. Paul hear about this, they are shocked. This is simply not the Canadian way.

Facing intense criticism in 2008, the Canadian Human Rights Commission hand-picked Professor Richard Moon to provide an evaluation of section 13 of the Canadian Human Rights Act. On page 31 of his report, in regard to the repeal of section 13 and reliance on the Criminal Code hate speech provisions, Dr. Moon states:

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.

This recommendation was dismissed by the Canadian Human Rights Commission, which in turn provided a list of recommended amendments to Parliament in 2009, none of which has been implemented to date. Thus, even the Canadian Human Rights Commission has admitted with its own recommended amendments that there are serious flaws within section 13.

Section 13 of the Canadian Human Rights Act has been a contentious topic for a number of years now, and it has been widely acknowledged that it does, in fact, impede paragraph 2(b) of the Charter of Rights and Freedoms, which states that everyone has the fundamental freedom to “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 paragraph 2(b) of the charter has been reaffirmed by the Canadian Human Rights Tribunal, which found that section 13 was in fact unconstitutional in September 2009.

A common argument in favour of section 13's right to censorship and its constitutionality is the overruling powers provided by section 1 of the Charter of Rights and Freedoms, an argument that I am sure the opponents of my bill will bring forward.

Section 1 does provide a provision within the charter to ensure that all guaranteed rights and freedoms are subject to:

...such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

There are but a few issues with applying this provision to section 13.

Most importantly, section 13 lacks the ability to demonstrably justify the limits that it imposes on our society. It does not define the difference between hate speech as opposed to hurt feelings and offensive speech.

Second, how can a loosely written, highly subjective, vague law such as section 13 override the Charter of Rights and Freedoms in a free and truly democratic society?

Section 13, which is intended to protect people from extreme acts of discrimination with regard to hate messages, as previously defined by the Supreme Court of Canada, has instead been used to address differing values or opinions and impedes one of the most basic civil liberties that we hold dear to our hearts, the freedom of expression.

I believe the true issue of debate here is this: at what point and to what extent is censorship justified in Canada today?

As I debate this question, I think of my good friend and constituent Bob Herrick, from Waskatenau, Alberta.

Bob is a very bright and very successful man who, like many in his generation, has had a tremendous life and tremendous experiences to go along with it. He holds some very diverse opinions. No matter what topic we are discussing, from hunting to political philosophy, Bob loves to test our convictions and boundaries. Often while trying to challenge someone's assertions, Bob will go well beyond political correctness and often be even a little bit offensive. It is his ability and his freedom to push the limits of political correctness, however, that truly test the merit of our own beliefs. In society, when we lose the ability to test limits for freedom of expression, we also lose the ability to grow and adapt peacefully as a country.

It is through freedom of speech and expression that we change governments here in Canada, not through riots and revolts. This is one of the unique factors that sets us apart from many countries in the world.

Women such as Nellie McClung gained the right to vote by testing societal norms through expression and freedom of speech.

Layer by layer, brick by brick, our country has grown and successfully developed by utilizing and enhancing our fundamental freedoms. Today that we must continue to fight the tyrannical nature of the bureaucracy to censor free speech and to tell us what boundaries should be placed on our society and what rights we have as individuals.

One might ask how we can ensure individual freedom of speech and at the same time protect people and identifiable groups from direct harm if we repeal section 13 of the Canadian Human Rights Act. The answer to the question is that we must direct these complaints to a fair, open and transparent judicial system, one that has been tested for hundreds of years within our own country.

With the repealing of section 13, individuals would still have recourse through both the civil and criminal justice systems. Sections 318 to 320 of the Criminal Code provide protection for identifiable groups when public communications invite hatred or harm against them. The continued use of the Criminal Code to address hate messaging would ensure that all individuals would be protected from threatening discriminatory acts while preserving the fundamental right to freedom of expression in our country.

An integral component of the Criminal Code is the need for the Attorney General to approve a claim. This prevents frivolous claims or claims made because an expression merely offended another individual.

It is also important to note that the Criminal Code provides basic provisions to the defendant that are not available through the Canadian Human Rights Act. I repeat. The provisions I am about to talk about are not actually available to Canadians under the Canadian Human Rights Act. These are provisions such as allowable defences; the right to face one's accuser; the right for the defendant to recover costs if a claim is dismissed; and the right to an open, fair and transparent trial.

Those are just a few of the basic liberties available under the Criminal Code. This is a system that has been tried and tested, a system with checks and balances and a system with which our society has entrusted its fundamental freedoms and has seen fit to enforce the rule of law in our country.

John Fitzgerald Kennedy described it best when he said:

We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.

Freedom of speech and the use of censorship on that freedom is not a matter to be taken lightly and should be entered into with the utmost of caution. That is why I personally find it highly alarming for our Canadian human rights investigator, someone entrusted as a gatekeeper of our fundamental freedoms, this valued freedom of speech in Canada, to claim it merely to be an American concept.

This is precisely the mentality that section 13 of the Canadian Human Rights Act is harbouring and just one more example of how unfit section 13 and the commission are to handle any level of power to censor speech in our country.

Freedom of speech is just as valued here in Canada. In fact, it is the only real tool that free and democratic societies like our own have to fight bigotry and ignorance. Any imposed censorship on this freedom must be taken very seriously and not met with casual disregard.

The solution here is not to fiddle with a broken, repetitive and unnecessary system. I believe the solution is to use the laws we already have and provide authorities with the tools and support necessary to properly and carefully enforce these laws.

The government has already announced that support to enhance the ability of the Criminal Code to better address hate messaging. This step, as well as the one year implementation period in my bill, would ensure the successful transition to a system in which true democracy and freedom of speech can thrive.

It is time we retract the power entrusted to the quasi-judicial bureaucratic system to deal with hate messaging in prevent the future abuse of the system. 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.

Finally, I would like to encourage all of my colleagues to stand up and protect our fundamental freedoms, the same freedoms for which we have asked our soldiers to put their lives on the line to protect time and time again. This truly is not an issue of blue versus orange versus red. This is an issue of freedom, transparency and balance for all Canadians.

[Françoise Boivin, NDP, Gatineau, QC]

Madam Speaker, I would like the members opposite to be as respectful of the right to freedom of expression as they have such little respect for the right to debate. The Conservatives' like freedom of expression, but do not really like debates, as they are constantly shutting us down. At times we do have to question the logic and the merits of Conservative positions.

I would like to pose a question to the member who introduced Bill C-304. Being cognizant—at least I hope he is—of the different burdens of proof in the Criminal Code and the Canadian Charter of Rights and Freedoms, does he not think that eliminating recourse to section 13 of the Charter increases the burden of proof and makes it difficult to have any recourse against hate propaganda?

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

Madam Speaker, at the beginning of my hon. colleague's question, she talked about the ability to debate a bill. I would remind her that this is a private member's bill, not a government bill, and that it actually was the NDP that filibustered my even having the ability to speak last Wednesday.

That being said, I think it is very important that Parliament is not scared to have an open, honest, respectful debate on the important issues of our country. That is what engages the citizenry of our country.

I met with My Canada this week, which is a great youth group in our country with over 5,000 participants. They strongly endorse my bill and they endorse the ability to engage in the freedom of speech in this country and change the fundamental values of our country to mould it to the way that they see it, to the way the youth see it moving forward in our country. That is very important, because it is very true that the only real way to fight ignorance and bigotry in our country is by enhancing the fundamental freedoms, like freedom of speech, so that we can be a true and democratic society that continues to grow, thrive and foster.

[Jason Kenney, Conservative, Minister of Citizenship]

Madam Speaker, I commend my colleague, the member for Westlock—St. Paul, for this courageous and principled initiative, which many of us in the House have known for some time, has been a necessary step to protect our inheritance of freedom of speech, which is a fundamental principle of our constitutional inheritance of our country's political values.

I wonder if the member could comment on some of the groups that have long called for the repeal of this much abused section of the Human Rights Act. I understand that there others, such as the Canadian Civil Liberties Association, the Canadian Association of Journalists, the Muslim Canadian Congress and organizations that span the entire political spectrum, from the Toronto Star to the National Post, that have all called for the repeal of this legislation.

Could the member please comment on the breadth of support and consensus that seems to exist for this bill?

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

Madam Speaker, I thank the hon. minister not only for his gracious words but his dedication to freedom of speech, freedom of religion and assembly, which he has fought for his entire political career.

He is absolutely correct. Bill C-304, protecting freedom, is not about left versus right. This has support from the Muslim Canadian Congress, civil libertarian groups and journalists across the political spectrum. The only thing lacking today is support throughout the House of Commons. I would like to see all members of Parliament set their partisanship aside and vote on an issue like this with their own principles rather than what the party whip wants them to do.

At the end of the day, it is debates like this that we need to have in a respectful fashion, but Canadians also expect us to vote our consciences when it comes to these types of issues. That is why it is so very important that we not only keep this debate respectful but that we also engage in an open, honest and transparent debate.

[Françoise Boivin, NDP, Gatineau, QC]

Madam Speaker, I am not really convinced by my colleague's answer to my question, but I am very open to debate in the House, to open and willing debate by those who wish to express their opinion about an issue. A number of important questions were raised in the House and they were all quickly dismissed by the government.

I am willing to believe that this bill is sponsored by a member who is not a minister, parliamentary secretary or other government member, but that does not mean there is not a problem in the House. People are constantly being prevented from debating. I was just informed that we will be voting tomorrow, once again, to limit debate at third reading. We come to the House and are told that we will be debating a certain issue. Bills are introduced. Sometimes the bills are very lengthy and require examination from different perspectives. However, as soon as there is an objection, limits are imposed on the time for debate. At second reading, we are told that we can debate the bill during the clause-by-clause study in committee. I just came from a committee meeting studying Bill C-10. We are practically being subjected to closure again in order to end the clause-by-clause study. We are talking about 208 clauses in a bill that will fundamentally change many things.

We have been told this evening by someone opposite that Bill C-304 is being introduced to protect freedom of speech. I have a great deal of difficulty believing words like that coming from anyone on the government bench and believing in their sincerity.

The people watching us are entitled to know what Bill C-304 is all about. Basically, it repeals section 13 of the Canadian Charter of Rights and Freedoms, which prohibits hate speech.

This section was deemed to be consistent with the law by the Supreme Court. A few years ago there was a decision by a commission. It would follow the normal course. Since then, it seems to have put a chill on everyone. However, the Supreme Court had already ruled in Taylor that section 13 was within the law and that it was required in a free and democratic society.

It is important to understand that the Canadian Charter of Rights and Freedoms imposes limits on each right and each freedom. For one person, it is a right and for another, their right ends where the other person's begins.

The government has to stop scaring people, which is another one of its specialities. It is scaring people and leading them to believe that good citizens will be cheerfully brought before the courts to have their right to freedom of expression challenged and that it will cost them a fortune. There have not been tons of grievances. It is not as though everyone is running to the Human Rights Commission to file a grievance against someone for hate speech under section 13. I repeat: hate speech. The law also defines hate speech. It is not a small burden of proof. It is not just telling someone that you do not like the way they look. That would certainly not be considered hate speech.

However, I received a tweet asking me what I was going to do as the member for Gatineau about an issue that involved my former leader, who unfortunately passed away this summer, being compared to a member of the Gestapo and to Hitler by an Internet site called Park Avenue Gazette—not to give it publicity. It is so disgusting; it makes me sick to read things like that. People dig things up and use symbols from things that happened during the second world war and attribute it to people who are human beings. Imagine how those people or their families feel when they see such things.

We are always being told by the members opposite that the Criminal Code already provides for certain things. The member for Westlock—St. Paul did not answer my question.

He did not answer it, because the problem is that the burden of proof is significantly different if we rely strictly on the Criminal Code. The fact that there are remedies under a “permissible” provision and under the Criminal Code, which means indictments or summary conviction offences, as well as civil remedies or remedies under the charter is nothing new. That is the case here.

The Criminal Code is based on a different system of evidence. We can require proof beyond a reasonable doubt, while under the Canadian Charter of Rights and Freedoms, the burden of proof is somewhat less. There is a lot of window dressing involved to protect the freedom of expression. However, the freedom of expression does not give me the right to strongly criticize someone for any reason, to make that person feel like he is a nobody who does not really deserve to live.

Would that justify a remedy under the Criminal Code? I have serious doubts about this. Our crown prosecutors already have their hands full and they will have even more work with the government's Bill C-10. Therefore, I have a hard time imagining a crown prosecutor taking an interest in issues whose interpretation can vary depending on a number of things. The Canadian Human Rights Commission was a specialized organization responsible for examining a case and determining, before the matter would end up in court, whether there were grounds for complaint under the Charter of Rights and Freedoms.

We do not want that because many friends of the government—I am exaggerating here, let us just say some friends—not to mention reporters from western Canada, tried to get some things through and have been complaining for a long time that section 13 prevents them from saying everything they want to say. We live in Canada and I always thought that we should be respectful of one another, that we could disagree, but that we were not allowed to denigrate an individual. That is what this is about. Making someone feel like a nobody, sometimes in a systematic way, has nothing to do with freedom of expression.

I cannot believe that the Conservatives want to have anything to do with these sites that disparage francophones, people who believe in bilingualism and in the French language, and people who believe this country exists thanks to two nations, including the aboriginal nations. I cannot believe they want to wash their hands of this and allow people to say whatever they want. It would be like me saying my colleague here is a so-and-so, but it is no big deal because I have freedom of expression.

I agree that it is important to have this debate and I would never want to stop it from happening. I hope that as many people as possible will stand up and talk about this and reiterate loud and clear what the Supreme Court of Canada said in the Taylor decision.

When Chief Justice Dickson upheld the constitutional validity of section 13 in Taylor, he spoke on behalf of the Supreme Court. I will close on this, but I have so much more to say. Again, my freedom of expression will be kept in check because of the limited amount of time we have to talk about this. The following is an excerpt from that ruling:

Parliament's concern that the dissemination of hate propaganda is antithetical to the general aim of the Canadian Human Rights Act is not misplaced. The serious harm caused by messages of hatred was identified by the Special Committee on Hate Propaganda in Canada, commonly known as the Cohen Committee, in 1966. The Cohen Committee noted that individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including a loss of self-esteem, feelings of anger and outrage and strong pressure to renounce cultural differences that mark them as distinct. This intensely painful reaction undoubtedly detracts from an individual's ability to, in the words of section 2 of the Act, "make for himself or herself the life that he or she is able and wishes to have". As well, the Committee observed that hate propaganda can operate to convince listeners, even if subtlety, that members of certain racial or religious groups are inferior.

I could go on about this at length. It is a great debate to be had and I hope Canada will not repeal section 13 of the Canadian Human Rights Act.

[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.

[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.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Madam Speaker, I would like to begin by saying that the Conservatives constantly talk about their desire to make our communities safer, yet, they appear determined to weaken restrictions on hate crimes. This seems contradictory to me.

We all know that the Conservative government has had a love affair with right-wing, George Bush-type Americans. It was the Republicans who supported mandatory minimum sentences and the elimination of pardon applications in the 1980s. As a result, the prison population soared, but public safety did not necessarily improve. It is these same Republicans who cling to the Constitution's first amendment: unconditional freedom of speech. Unfortunately, extremist groups of all kinds use it to spew homophobic, racist, Islamophobic and anti-Semitic beliefs, while claiming protection under the first amendment. This American standard goes against certain international conventions, such as the International Covenant on Civil and Political Rights, which prohibit hate speech.

The Conservatives love to talk about victims and show empathy for their situation, as we all should, in fact. However, in this case, they are completely blinded by their ideology. They are forgetting the people who are already marginalized, such as racial or religious minorities or the gay, lesbian and transsexual communities. They are forgetting the dramatic effect that hate speech can have on someone who is already marginalized. They are forgetting the suicide epidemic among gay, lesbian and transsexual teens in the United States and Canada. They are forgetting the attacks on visible minorities. Expressions of hatred and intolerance are the main causes of these tragedies and that is why we must, at all cost, maintain protection against such expressions of prejudice.

I heard the member on the other side say in his speech that there is not always a victim on the receiving end of hate speech. That is not necessarily the case. If someone writes something hateful and there is no one yelling and saying that it hurts, it does not mean that it is not the case. You never know what effect it can have to write something about someone.

The Canadian Human Rights Tribunal has seen many cases based on section 13 of the Canadian Human Rights Act. Those cases have included many related to white supremacy, holocaust denial and other forms of anti-Semitism.

The Conservatives' argument against section 13 of the Canadian Human Rights Act is that it infringes on their right to freedom of speech, protected by the Charter of Rights and Freedoms. They also maintain that Canadians are already protected against hate speech by subsection 319(2) of the Criminal Code. On both points, total devotion to their ideology is giving the Conservatives a case of amnesia and making them deliberately ignore the facts.

Let us be clear and honest in this House. Section 13 of the Canadian Human Rights Act does not infringe upon the Charter-protected right to freedom of expression. How do I know this? Because in 1990, in Canada (Human Rights Commission) v. Taylor, the Supreme Court of Canada ruled to that effect. It worries me when the federal government chooses to completely ignore Supreme Court decisions.

As for the government's second argument, which is that the Criminal Code already protects Canadians against hate speech, they are conveniently forgetting to consider the important differences between subsection 319(2) of the Criminal Code and section 13 of the Canadian Human Rights Act. These differences are significant. In fact, they are extremely important for victims of hate crimes.

I would like to enlighten the members across the floor regarding some of these differences. First of all, the complaint procedure is different. The Canadian Human Rights Act allows individuals to file complaints. If the commission finds that the complaint is major, the matter goes before a tribunal. Under the provisions of the Criminal Code, criminal proceedings can only be brought against someone with the consent of the Minister of Justice. Victims of hate crimes should not have to wait for crown attorneys to prosecute a case only after the Minister of Justice has given the green light.

Now I would like to talk about the standard of proof. The Canadian Human Rights Act sets out a different standard of proof of guilt. A criminal case requires proof beyond a reasonable doubt, while a case before the Canadian Human Rights Tribunal requires proof on a balance of probabilities. That constitutes a big difference for victims and perpetrators of hate crimes.

As members know, O.J. Simpson was acquitted in criminal court because the prosecution was unable to prove beyond a reasonable doubt that he committed the murder. But he was found guilty in civil court, based on a balance of probabilities. The complaint process and the standard required to prove guilt differ in section 13 and subsection 319(2) of the Criminal Code. They have very different implications for victims of hate crimes. As the Canadian Human Rights Commission has already said, they complement each other and are not in competition.

The most important thing to point out here is that we must strive to live in a society without hate crimes or intolerance. The victims of hate crimes should not need the authorization of the Minister of Justice—who is partisan, I should point out—to go after the perpetrators of hate crimes. Furthermore, it is not always easy to prove guilt beyond a reasonable doubt in the case of hate crimes. That is why we need another mechanism outside the Criminal Code to ensure that visible minorities are able to defend themselves against hate crimes.

When will the Conservatives in this country realize that hate crimes are real and that the Minister of Justice should not have the power to decide which ones are real and which ones are not?

I urge my colleagues to vote against this bill.

[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--

[The Deputy Speaker, NDP, Denise Savoie]

Order, please. I regret to interrupt the hon. member. He will have about five minutes when the bill returns on the order paper.

The time provided for the consideration of private members' business has now expired, and the order is dropped to the bottom of the order of precedence on the order paper.

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.

[The Acting Speaker, Conservative, Bruce Stanton]

When the House last took up this question, there were five minutes remaining for the hon. member for Edmonton—St. Albert.

The hon. member for Edmonton—St. Albert.

[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.

[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.