Justice Committee on Oct. 26th, 2009

[Jennifer Lynch]

With the greatest of respect, sir, jadewarr is not the registered domain name of a private citizen. What I believe you're referring to is another untrue allegation, which we are again filing documentation to show has no basis in fact.

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

I look forward to that filed documentation.

How am I doing for time?

[The Chair, Conservative, Ed Fast]

You have about 15 seconds left.

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

That will be it. Thank you.

[The Chair, Conservative, Ed Fast]

We'll move on to the next round. I believe it's Ms. Jennings. You have five minutes.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Chair.

Thank you so much for your presentation. I as well look forward to the document file that you'll be tabling that shows these allegations that have been made are clearly unwarranted and baseless.

I do have a couple of questions. One of them is with regard to two of your recommendations.

On the one hand, you recommend that there be a clear definition of hate and haine et mépris, and that definition should follow the judgment, the use of the terms or the definition of the terms by the Supreme Court of Canada in the Taylor case. Then you as well say that if that happens, the commission should be given a power it does not currently have, which is to be able to dismiss a complaint at its reception based on lack of jurisdiction, because in fact what is being alleged does not meet the definition of hate.

I think that's very interesting. I'll go further and ask why would the commission not ask for specific power so that after it has investigated a complaint and deems that that complaint warrants a decision made by the tribunal...why would the commission not be the only party and actually prosecute, so to speak?

We see in other areas of administrative law where a body has the exclusive right to receive a complaint, to investigate a complaint, and if it deems that the complaint warrants--there is sufficient evidence for there to be a hearing on it--it goes before a separate tribunal, but it's the investigative body, the commission, that acts as the party to the case and actually prosecutes the alleged offender before the tribunal. Why would the commission not have asked for those kinds of powers?

How am I doing on time? Is my question too long?

[The Chair, Conservative, Ed Fast]

Go ahead.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Clearly, in the case of Bell Canada v. Canadian Telephone Employees Association, the Supreme Court of Canada stated that

The Tribunal is not involved in crafting policy, nor does it undertake its own independent investigations of complaints: the investigative and policy-making functions have deliberately been assigned by the legislature to a different body, the Commission.

So I see there appears to be a disconnect. On the one hand the commission investigates the complaint, but when the complaint goes before the tribunal, from what you've said, the commission is not a party to it. It may be, and you have been in one case, but that's it. That, to me, appears to be a disconnect.

[Jennifer Lynch]

Thank you very much, Madam Jennings.

To begin with, the act does provide us with the power to initiate a complaint, and we can do that. We have not frequently done it, and we are certainly considering doing it more, based on the encouragement of Professor Moon in his report. We already do have that power.

We don't see a need to take away an individual's right to lay a complaint. That's also there. So there are the two possible streams for getting the case to the tribunal. Our act also does provide that we are to represent the public interest, and we do so before the tribunal. In fact, in the first decade of the commission's existence, in every case of any kind of complaint that went to the tribunal, the commission represented the public interest, but for a number of reasons we no longer do that.

In the vast majority of hate expression cases, we have done that. So we have done that in more than one.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Okay, thank you.

[Jennifer Lynch]

The legislation, in our view, works well. It could be clarified. It's effective, but we are concerned about the layperson, and clearly the layperson does not understand the meaning of hate, because no Canadian need fear that merely offensive expression will be prohibited.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

It's precisely because in part, when you say the ordinary Canadian need not fear, I think the commission should be looking seriously at amendments to the legislation so that, on the issue of hate complaints, an ordinary citizen would bring the complaint to the commission and the commission would investigate. But if the commission found grounds for an actual hearing on it before the tribunal, precisely because it's then of public interest, it should be the commission that is party to that complaint and not the alleged victim, because then we would be putting the entire burden on that individual.

[The Chair, Conservative, Ed Fast]

Ms. Jennings, we'll leave that as your comment on the record.

You may want to answer that or expand on it later on, but we'll move on to Mr. Lemay now for five minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chair.

Thank you, Ms. Lynch.

I am trying to understand, because we have to be careful before we amend a section of an act. I have read the Moon report. Actually, Mr. Moon will probably provide an explanation on this point.

In subsection 13(1), we read, and I quote:

... 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.

Then subsection 3(1) reads as follows:

3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

I think it would be difficult to amend section 13 as it now reads, because it is protected. We have section 318 of the Criminal Code, against genocide, but there is also subsection 319(1) of the Criminal Code, which provides:

319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of ...

As well, the courts have held that a public place could be a something on a computer and available on the Internet, because it is public.

I don't understand why section 13 needs to be amended at this time, let alone repealed. What isn't working, since we have section 2 of the Charter and section 319 of the Code?

[Jennifer Lynch]

One important point to remember is that section 13 cases represent fewer than 2% of the complaints that come to the Canadian Human Rights Commission. Within that small number, just one case has become prominent and caused the current debate about the balancing of freedom of expression and freedom from discrimination based on hate messages. In response to that concern, we undertook an in-depth analysis and had the benefit of the thinking of Professor Moon, an expert you'll hear from in a few minutes, other consultations, and our own research. We came to the conclusion that the section will be better understood if it's amended and that our processes could be improved by giving us the opportunity to dismiss unfounded cases early.

One thing many don't understand is that we have a statutory obligation to formally investigate every complaint once it's within our jurisdiction. And with hate message cases, since we're looking at the most vile expression, it can be fairly obvious very early whether it meets the test. So if it is Parliament's will to do so, our recommendation would be to give us that statutory option, which will put an end to perhaps three-quarters of these complaints before an investigation. And that is a benefit to Canadians, who will more clearly understand their law. I hope it responds to Mr. Rathgeber's point as well, because it would give the commission the opportunity to dismiss the case early. We just do not have that statutory opportunity right now. We must investigate.

[The Chair, Conservative, Ed Fast]

Thank you.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

At present, that's clear.

Thank you.

[The Chair, Conservative, Ed Fast]

We have time for one last question, Ms. Lynch.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Ms. Lynch, for attending.

I want you to know that my concern is with the principles involved, not with the particular personalities. I'm also grateful to hear the suggestions that surface from time to time from you regarding potential reform and amendment.

I want to begin with your comment that ordinary Canadians do not have to fear. I'd like you to adjust your mindset just a bit, because when I go door to door and I hear about this issue, as I have, I don't regard it as Canadians expressing fear to me. However, I do regard it as Canadians expressing to me a very fierce affection for freedom of expression, and I'm sure you would agree that's a good thing. You correctly put your finger on the issue before us, which is how to balance the limitation of freedom of expression with other concerns.

The difficulty I'm having is that while we may say that the Human Rights Code is not a penal statute or punitive in nature, in fact the consequences of findings under the code are quite punitive at times, ranging at the present time from fines to compensation to lifetime bans on expression. I come from that approach. And having been involved in the judicial system for almost thirty years, I know it makes mistakes, even though we have all kinds of safeguards to protect accused persons: we have a right to counsel, we have rules against hearsay, we have high burdens of proof on prosecutors, we have provisions that are quite tightly defined, we have legal aid, and even with all those safeguards the judicial system makes mistakes.

I think what causes my constituents concern is that their freedom of expression doesn't have those safeguards before the tribunal. It doesn't have those safeguards when it comes to the commission deciding who will be prosecuted or who will not and who will be aided.

For example, when you say that costs should be awarded only in exceptional circumstances, I say to myself, if my right to freedom of expression has been unjustly challenged and I succeed in affirming it, why shouldn't I have costs in every case? Do you think we could make recommendations that would safeguard freedom of expression and the interests of freedom of expression in the tribunal and the commission processes?

Thank you.

[Jennifer Lynch]

Finding the balance between a Canadian's right to equality and the right to freedom of expression is a fundamental issue. We get our direction from the statute, the charter, and to a certain extent from international law. This balancing was achieved when the Supreme Court of Canada made its interpretation of “hate” in the Taylor case. We are an administrative agency, and the language of prosecution doesn't apply to us. We are a screening body. We receive a complaint, screen it, and send some to the tribunal.

Similarly, the tribunal isn't prosecuting, either. The tribunal is a quasi-judicial agency and is less formal than the courts. The system is part of a network, a large expanse of federal agencies and tribunals. They adhere to the rules of procedural fairness and natural justice and have processes that are meant to encourage a less formal approach, where lawyers are not necessary.

Returning to freedom of expression, it is protected in our statute. We can see that by the statistics I've given you and by the fact that the only expression that is limited is expression of the most extreme and vile nature. If I may say something that could confuse Canadians, section 2 of the Charter of Rights and Freedoms protects freedom of expression, while section 15 provides equality and freedom from discrimination. Section 1 says that this is subject to such limits as are reasonably justified in a free and democratic society.

As we balance rights, there will come a time when there may need to be a limit on one and not on the other. That is what the Taylor case has done—it has protected and drawn the line.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'm afraid you've missed the point of my question.

[The Chair, Conservative, Ed Fast]

Unfortunately, we're at the end of the time.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

It's the process.

[The Chair, Conservative, Ed Fast]

Ms. Lynch and Mr. Dufresne, thank you for attending. The time was much too short, and I think we may have to have you back.

I'm going to ask that the next panel of witnesses assemble quickly so that we can get as much as testimony as we can.

We'll suspend for five minutes.

[The Chair, Conservative, Ed Fast]

We'll reconvene the meeting.

This is the 43rd meeting of the Standing Committee on Justice and Human Rights. This is our second panel today. We have with us Professor Richard Moon, whose name came up in the previous panel. We welcome you here. We also we have Bernie Farber and Mark Freiman representing the Canadian Jewish Congress. Welcome to both of you.

Perhaps we'll start with Professor Moon.