Justice Committee on Oct. 26th, 2009

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting number 43 of the Standing Committee on Justice and Human Rights. Today is Monday, October 26, 2009.

You have before you the agenda. Today we're continuing our study on the Canadian Human Rights Act, more specifically section 13 of that act.

We have two panels of witnesses today, each one hour. During the first hour we have with us Jennifer Lynch, chair of the Canadian Human Rights Commission. We also have Philippe Dufresne with us. Welcome.

During the second hour we will have with us Bernie Farber and Mark Freiman, from the Canadian Jewish Congress, as well as Professor Richard Moon.

As a reminder to everyone in this room, please turn off your cell phones or put them on vibrate so we don't have disturbances. As well, take any telephone conversations outside the room.

Ms. Lynch, why don't you begin? I believe it has been agreed you'll have up to 15 minutes to present, and then we'll open the floor to questions.

[Jennifer Lynch, Chief Commisioner, Canadian Human Rights Commission]

Thank you, Mr. Chair and honourable members of the committee.

I am pleased to have received the invitation of the committee to contribute to your review of the Canadian Human Rights Commission and the application and interpretation of section 13 of the Canadian Human Rights Act. I would like to introduce my colleague Philippe Dufresne, Senior Counsel at the Commission.

The challenges of ensuring the right to freedom of expression and the right to equality and dignity are not new. The most recent debate has focused on the role of section 13 of the Canadian Human Rights Act and has engaged many Canadians for well over a year.

From the outset, the commission's responsibility has been to lead and inform the debate by providing a comprehensive and balanced analysis of this obviously complex issue. Our appearance before this committee today is an important step in our efforts to fulfill this responsibility.

Parliamentarians adopted the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act to recognize the equal status of every individual in Canada. Parliament's vision for Canada created the framework for the most open, inclusive, and culturally diverse country in the world. Our commitment to equality and dignity has shaped our personal and collective identities. It has contributed to our progress and prosperity. It is part of what makes us Canadian.

This approach to creating a harmonious society is not ours alone. For over 60 years the Universal Declaration of Human Rights has united the world in recognizing that all human beings are born free and equal in dignity and rights. In 1977 the Canadian Human Rights Commission was mandated by Parliament to champion these fundamental values.

Today our act still brings a powerful vision to Canada, brilliantly articulated in section 2 of our act, which states: “The purpose of this Act is to...give effect...to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have”--free from discrimination. This is what inspires me.

The commission provides access to justice so that the most vulnerable may have their voices heard. Thousands upon thousands of complaints have been resolved.

For some people, their quality of life has improved. Here are some examples. Persons with disabilities now have greater access to daily activities. For example, public transportation is now more accessible, bank machines provide audible output, and television broadcasts include closed captioning. Over 700,000 Aboriginal persons now have full protection under our act. Every worker now has the right to be free from harassment in the workplace – whether sexual, racial, or religious. Mothers can raise their families without fear of losing their jobs.

In spite of Canadians’ collective human rights accomplishments, forms of discrimination will continue to exist.

This one area, in particular, requires continued vigilance. Canadians are still the targets of egregious acts of discrimination.

Hate propaganda, sadly, is alive and well. Hateful expression aimed at groups of people continues to pose a threat to the harmony of our communities and undermines equality. Equality is guaranteed in the Canadian Charter of Rights and Freedoms. It is therefore ironic that some point to the same charter as providing an absolute right to freedom of expression. No right is absolute. When rights are in conflict, legislators must find a way to balance those rights.

This debate has already been decided, in part. There are limits on freedom of expression. Canada's libel laws are one example. Canada has agreed, by signing and ratifying international treaties, to place limits on freedom of expression where that expression is hateful. In the 1970s Parliament created the Canadian approach to regulating hate messages in the Criminal Code and with section 13 of the Canadian Human Rights Act. In 2001 Parliament amended the act to include hate messages on the Internet.

The commission has narrowly applied the law in accordance with a Supreme Court of Canada ruling and other jurisprudence. For a message to be prohibited by section 13 as hate, it must involve, and I quote, “extreme ill will”, “unusually strong and deep-felt emotions of detestation, calumny and vilification” that are “ardent and extreme in nature”.

A prominent complaint filed with the Canadian commission in 2007 is a prime example of how the commission has properly applied the law. The complaint was brought against Rogers Communications, owner of Maclean's magazine, by complainants who believed that some content in the magazine constituted hate messaging. The Canadian Human Rights Commission dismissed the complaint, citing that the impugned content did not meet the narrow definition of hate. Let me quote from our decision:

The writing is polemical, colourful and emphatic, and was obviously calculated to excite discussion and even offend certain readers, Muslim and non-Muslim alike. Overall, however, the views expressed...when considered as a whole and in context, are not of an extreme nature as defined by the Supreme Court in the Taylor decision.

This is the only complaint we have ever received from the mainstream media, and we dismissed it. This clearly demonstrates that the commission does not regulate offensive speech. Any other suggestion is false.

We have witnessed public discourse at its best and at its worst. At its best, the debate has focused on improving Canada's approach to balancing rights. Among examples of the worst is testimony heard by this committee earlier this month. This committee has heard unsubstantiated allegations. Simply put, these are baseless. This committee has also heard the commission and its employees described as “dress-up Nazis, psychologically disturbed, rogue, and brutal” and compared to Saddam Hussein. This does nothing to advance society's thinking on hateful expression.

Specifically--and it must be stated clearly--unsubstantiated personal attacks aimed at commission investigators Dean Steacy and Sandra Kozak are irresponsible, hurtful, and above all, untrue.

I am proud of my staff. The people who work for the commission are dedicated to promoting and protecting equality rights. We have the public interest firmly in our minds and know that we sit in the position between competing sides in every complaint. We will continue to do Parliament's will without fear or favour.

It was with this dedication that the Commission set out to provide Parliament with a complete and balanced analysis of the issue of hate on the Internet.

This past June, following a year-long study, the Commission presented this analysis in the form of a Special Report to Parliament entitled "Freedom of Expression and Freedom from Hate in the Internet Age".

This process began with an independent review of section 13 by Professor Richard Moon of the University of Windsor, a legal expert on freedom of expression. Following Professor Moon’s submission, the Commission released his findings and sought feedback from stakeholders.

After concluding all of our research and consultations, the Canadian Human Rights Commission came to the conclusion that an administrative remedy for hate messages remains a vital component of Canada’s human rights system.

Some have posed the question: Are the Criminal Code and the Canadian Human Rights Act provisions against hate messages both necessary? In our view, the answer is yes.

The two laws address the issue of hateful expression in different ways. The Criminal Code seeks to punish the offender, while the Canadian Human Rights Act seeks to remove the hateful messages.

It is our considered opinion that section 13 of our act provides a needed flexibility in the legal tools available to deal with hateful expression. The Criminal Code, because of its punitive nature, the need to prove intent, and the strict standard of proof, is not effective for every case. Section 13 of the Canadian Human Rights Act provides an alternative where the goal is remedial; it focuses on the message, not the individual.

Our special report to Parliament recommends amendments to section 13 and provides observations concerning the Criminal Code that will improve Canada's ability to remove hate messages.

Make no mistake: hate messages strike at the core of equality. They are the root of intolerance, and at the extreme are the impetus for violence. As Canadians, we cannot waver in our commitment to protecting each and every individual's right to equality and dignity.

I look forward to answering your questions.

[The Chair, Conservative, Ed Fast]

Thank you very much.

I'll open the floor to questions, beginning with Mr. Murphy for seven minutes.

As a reminder to members, this meeting is being televised.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

Thank you, Madam Lynch and Mr. Dufresne.

We heard the evidence of Mr. Levant the last time we dealt with this matter, and an awful lot of ground was covered. A lot of it was evidentiary and procedural. I would not call it without merit in terms of allegations, but in terms of proof I have no idea--and we have seven minutes.

So I think we need to have a broader discussion about the need--or not--for section 13. We need to have a broad debate on whether there is need to curtail freedom of expression of hate on the Internet. That is the discussion we must have as parliamentarians.

In a curious case of convergence, Mr. Levant seemed to argue that there might be room under the Criminal Code or a revamped human rights regime to protect people from violence that comes from hate. The convergence is with no less a figure than the President of the United States, President Obama. According to what we heard previously, he may be considering moving the United States toward human rights protections that are triggered by acts based on hate that go toward physical harm--violence, if you like.

What we have does not cover that at all. There is coverage for violence or threats of violence, but it's quite a bit short of that. It allows protection for hate, as defined by Justice Dickson in the Taylor case. The valid point is whether the words “extreme ill will” and “calumny”--I challenge anybody in the room to figure out what that actually means--are extreme in nature. We know what it means in essence, but are we not really left with Justice Dickson's words? Justice La Forest from New Brunswick put it very well in his review that we should leave judges to determine what hate crimes are and what hatred is.

But are we stuck with those words? Is there a chance that we need a new reference on the issue because those are older words from a court that was composed differently? When I see the Minister of Justice's legislative assistant in the room, I know that the composition of the Supreme Court is now probably going to become like an American process. We're going to try to figure out what person thinks the way we want about these issues, as a government per se. So it's a very important determination.

Do you think we should go toward what may be intended in the United States? Do you think we should stick with what we have? Do you think we need clarification of what Justice Dickson's words mean today?

[Jennifer Lynch]

Let met state initially that the Canadian Human Rights Commission exists to protect individuals from discrimination and to ensure that equality and dignity are available to every individual. This mandate flows from international law, from the Charter of Rights and Freedoms, and of course, as you've mentioned, from our section 13. Our role is to promote access to justice and ensure that we are an effective part of the administrative legal system and that we are fair and accessible. Hate messages strike at the core of equality and can cause serious harm to society and to individuals by exposing them to discrimination and in extreme cases to violence.

Part of your question relates to the definition of hate, and you're quite right that what we, and the tribunal and the Federal Court, have been doing is relying on the definition provided by the Taylor decision in 1990. That definition makes it very clear that only the most extreme forms of ill will can be found to be hate messaging.

In terms of the application, we're comfortable with how it has been applied. I think the statistics speak for themselves. Since 2001 there have been some 70 complaints brought to the commission on the basis of hate messaging, and something in the area of 22% of these have been found by the tribunal to be hate messages.

Moving a little deeper into the statistics, there have been some 19 cases heard by the tribunal, of which 16 have been found to be hate. A very recent case that dealt with two found that the expression had been hateful but also found that the section would not be applied because of the penalty provision. The final case is one where none of the parties attended the hearing, so the hearing was dismissed.

What we learned from this is that the Canadian Human Rights Commission has been exacting in applying the definition of only the most extreme and ardent forms of expression. The Canadian Human Rights Commission does not regulate offensive speech. No Canadian need be concerned that if they use offensive speech it will be considered prohibited under the Canadian Human Rights Act.

In our special report we have recommended that there be an amendment to section 13 to include a definition of hate that reflects the tried and trued definition that came from the Taylor decision in 1990. It's not that the Canadian Human Rights Commission or the tribunal needs this definition; however, we do realize that it's always desirable when a person can read an act and understand what it means and not develop an unbased fear that it might apply to them in certain circumstances. So it's because of our concern that our legislation be clear to the layperson that we recommend the narrow definition be put in our statute.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Monsieur Ménard for seven minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you.

I admit that although I am very familiar with the Quebec system, where the Human Rights Tribunal and the Commission make decisions, have powers to intervene, and initiate arbitration and forms of mediation, which generally produce reasonably good results, I had never realized how important your Commission is. It seemed to me that discrimination was covered by provincial legislation. Now, a court has found that section 13 is unconstitutional. I imagine that decision has been appealed. What stage has that process reached? I am talking about Warman v. Lemire.

[Jennifer Lynch]

The commission has applied for judicial review of the decision based on two grounds. Part of the tribunal's finding was based on the fact that cases related to section 13 are not as often subject to settlement by mediation as other types of cases. This would be understandable. The ground of appeal relates to the fact that, in our submission, a statute can't be rendered unconstitutional by how an administrative agency that is part of that statute processes cases, and whether or not they're found to be mediate-able.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

That is not really what I wanted to know. I want to know where the case is in the courts. Is it still under appeal? Has the appeal come before the Ontario Superior Court?

[Jennifer Lynch]

The case of Warman v. Lemire was decided by the Canadian Human Rights Tribunal. The tribunal is an independent tribunal. The Canadian Human Rights Commission is a screening body. In the part of our work in which we process complaints, we are a screening body. We either dismiss the complaint or send it to the tribunal, where it will be heard. The case was heard by the tribunal some months ago, and the decision came out a few weeks ago. The commission has applied for judicial review on two grounds. So that's where it stands, and the review will go to the Federal Court.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Right. For the moment, it is before the Federal Court, at the trial level.

[Jennifer Lynch]

Yes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

So it has not yet come before the Court of Appeal.

How do you feel about the decision you are challenging?

[Jennifer Lynch]

At all times, we process cases based on our policies and procedures, and of course our responsibilities. These relate to our engagement as an administrative agency within the whole quasi-judicial framework. We do not have many open cases. I believe right now we have one case that is before the commission, and we will be presenting the public interest before the tribunal. In any hate case, we will not be seeking a penalty. That is how we'll be dealing with these cases.

The second point of the appeal relates to the fact that, in our submission, the penalty provision could have simply not been applied, and the act itself could have been applied without the penalty provision.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

In his report, Mr. Moon came out in favour of repealing section 13, but he said that if we did not go so far as to repeal it, he suggested that certain reforms be made.

Do you prefer to repeal it, or make the reforms he suggested? Do you think the reforms suggested would be good and could remedy the flaws identified by the people proposing that the section be repealed?

[Jennifer Lynch]

In June of this year we filed our special report to Parliament. All members have been given copies of this report, and we did bring some additional copies. In the report we do analyze, of course, Professor Moon's recommendations and we also went through another process where we had other consultations as well and did our own research.

Our recommendation is that section 13 not be repealed. In short, our recommendation is closer to Professor Moon's second option that you mentioned. Professor Moon, who happily is here to give evidence in the next hour and will be able to more specifically address his own recommendations, did suggest that there be a definition of hate put in the statute. The definition that he suggests is one that relates to advocating, inciting, or justifying violence. In the opinion of the commission, and as more specifically described in our special report, we don't feel that the definition should be as narrow as that. We feel that the definition should be along the lines of the Taylor case.

Professor Moon makes other observations and recommendations related to the processes that the Canadian Human Rights Commission might undergo. For example, he recommends that the commission be in effect the only complainant, that individuals should not have the responsibility to bring forward a complaint.

Our conclusion is that we should not take away that right from individual complainants. In the Canadian Human Rights Act there is a section that provides that the commission can bring its own complaint, and in fact that's what we did in the Taylor case in 1990. We find that those provisions still work well.

There are other slight distinctions, but overall I must say that Professor Moon's work greatly assisted the commission. It was thoughtful and well reasoned, and as I said, significant parts of his recommendations are reflected in our report.

[The Chair, Conservative, Ed Fast]

Thank you.

We're looking forward to hearing Professor Moon shortly.

We're going to move on to Mr. Comartin for seven minutes.

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

Thank you, Mr. Chair.

Thank you, Ms. Lynch, for being here.

When Mr. Levant and Mr. Steyn were here, there were some very serious allegations made in the course of that hearing and out in the public even prior to that. Have either you or somebody within the commission done an analysis of those allegations, those accusations against in particular Mr. Steacy, and Mr. Warman, when he was still an employee? Has an analysis been done, an investigation been done by the commission?

[Jennifer Lynch]

As I was mentioning, we play a fundamental role in providing access to the administration of justice for individuals, and in order to do that, of course, we must be part of very clear processes that are fair, equitable, and transparent.

A key point I'd like to make with you is that the employees of the commission do adhere to the strongest ethical values and codes of ethics, and have not erred from those codes of ethics or ethical values.

You refer to certain assertions that we have heard here at the committee, and of course have been part of what I would call a storm or blizzard of confusion, of misinformation that unfortunately some are taking as facts. Understandably, as chief commissioner, I have of course looked into the matter just to reassure myself, as I can reassure you here today, that Canadians can have pride in all of the employees of the Canadian Human Rights Commission and the way we carry out our complex mandate.

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

Ms. Lynch, let me stop you. That's not an answer to my question. Did you conduct a detailed investigation into those allegations?

[Jennifer Lynch]

We have conducted detailed investigations internally, and the Royal Canadian Mounted Police and the Privacy Commission also did. These two latter bodies have found that the allegations were unsubstantiated and they have closed their files. I will be filing a book of documents with the clerk that clearly shows that.

In terms of our own internal investigations, I can clearly state that there has been no breach of any law or any ethic by any employee of the Canadian Human Rights Commission in investigating or processing section 13 hate cases.

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

Has any civil action been taken against Mr. Levant or Mr. Steyn because of these accusations that they've made?

[Jennifer Lynch]

We are public servants who are working to do our job, and I'd like to put this into perspective. The processing of complaints is less than 50% of what we do. The Canadian Human Rights Commission is also promoting the equality of Canadians, with a very broad mandate. With a lot of interesting, important, and exciting work, we are leaders and catalysts in advancing equality in Canada and in fact internationally. These kinds of assertions that we've been hearing are very unfortunate, unfair, and untrue.

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

They're also libelous and slanderous, if in fact they're not accurate.

[Jennifer Lynch]

Recent law has determined that the commission as an organization cannot bring a libel action or a defamation action. With respect, it's expecting a lot of individuals who are doing their everyday work as dedicated public servants to take on for themselves a civil liability action. Treasury Board has a guideline that they will not, under any circumstances, support the legal costs of plaintiffs, and they will only consider it for defence work.