Justice Committee on April 24th, 2012

[The Chair, Conservative, Dave MacKenzie]

That's all the time, sir.

Mr. Jacob.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Good morning, Mr. Storseth.

Section 13 of the Canadian Human Rights Act ensures that Canada meets its international treaty obligations and its commitments under the International Covenant on Civil and Political Rights, as well as other international and regional commitments. If section 13 makes it possible to meet those obligations, could you tell me why you think repealing it is a good idea?

Right now, section 13 does a good job of guaranteeing that Canada complies with the objectives of the international community in terms of human rights protection, ensuring, among other things, legal protection against hate speech and incitement to hate and the ensuing violence.

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

Thank you very much for your question.

On the first part of your question—why repeal it—I believe, as I've stated, that the core principle of this bill is to repeal it because it does infringe on our Charter of Rights and Freedoms. Paragraph 2(b) of the Charter of Rights and Freedoms states that “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”, is enshrined in our charter.

The debate really isn't about whether or not it impedes our own charter. The debate that has been put forward by the NDP opposition is to try to justify why that happens. I think we need to repeal this because not only has it not worked practically in the implementation—I don't believe that it has adequately protected against hate speech in our country—but I believe it infringes significantly on freedom of speech and expression, which is a cornerstone of our society.

One of the issues—and it's what I have heard in debate in the House and once again here today through your questions—is this reinforcement of two-tiered hate speech law in our country, one tier being what is currently in place under section 13 of the Canadian Human Rights Act, and the second being the Criminal Code. But I actually take umbrage at that because, as Mr. Jean has just stated so well, these are serious cases, and there shouldn't be different levels of hate speech in our country.

I don't believe that you can be prosecuted for a hate speech and only get, say, a $5,000 fine and that's adequate. If it's hate speech, it should go under the Criminal Code of Canada and it should be prosecuted to the fullest extent of the law. I believe that a two-tiered system actually takes away from that and minimizes it.

I believe these are serious offences that need to be investigated by a police officer. They need to be looked at in an open and transparent system that has all the checks and balances that we Canadians expect, and not by some quasi-judicial body where, at the end of the day, you don't even see the light of day of it, and by a quasi-judicial body that in some cases has rules of evidence that ebb and flow depending on who is presiding over the case. I don't think that is the right way to go. I believe we need an open and transparent system. I believe this should be looked at under the Criminal Code of Canada.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you. I have another question for you.

In the Taylor case, the Supreme Court of Canada stressed the importance of freedom of expression, but it didn't limit its analysis to messages that are likely to be hateful. It rather tried to stress the importance of looking at a message in its overall context. This is what it said:

This analysis requires an approach sensitive to the context of a given case, it being necessary to explore the nature and scope of constitutionally entrenched human rights in light of the facts at hand.

In your opinion, what role do elements such as the context in which a statement was made and the intent of the person making the statement play in cases dealing with hate messages?

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

Thank you very much for your question.

As I've stated both with the government side and the opposition side, I think it's important when communicating the principles of this legislation that you don't delve into specific cases—or at least I try not to.

I do note, however, that the Supreme Court of Canada has also emphasized that section 13 does not target expression that some may find merely offensive, but rather that it should target only the most extreme forms of expression of hatred and contempt. I find that difficult to do with a law that everybody agrees is vague and very loosely worded. It's very difficult to adhere to those principles and standards when you're looking at a law that simply says somebody may feel as if they were offended. I think that's one of the fundamental flaws in this. That's where I would be at with that.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

Thank you, Mr. Storseth. It's good to see you here today.

I'm going to ask you to comment. Have you seen the submissions on this from the Canadian Bar Association? I'm not sure if you have. If you have not, I'm going to read you a passage.

The Canadian Bar Association made a submission with what I think is fairly inflammatory rhetoric on this issue. What they say is that if section 13 is repealed, “Canadians can expect to be subjected to a plethora of hateful messages and communications, and a corresponding loss of civility, tolerance and respect in Canadian society”.

There's no factual basis behind that. I find that to be a rather shocking statement.

You have extensively studied this. I wonder if you could comment on that and on whether you agree or disagree with that submission.

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

Well, first of all, I'm disappointed that the Canadian Bar Association would put forward something with so little actual fact or proof behind it. The fact of the matter is that it kind of sounds to me like they don't really have trust in Canadians, which I don't think is the fundamental principle that our government—I mean government as a whole—is based on.

I absolutely disagree with that, because what this does, what this legislation repealing section 13 does.... It's a question I get around town halls all over our country: what happens next? That's basically what they're asking: what happens after section 13 gets repealed? Well, at the end of the day, when you're repealing a piece of legislation like this the consequences will be that hate speech is actually going to be taken more seriously, I believe, because it will be investigated under the Criminal Code of Canada. It will be investigated by police officers. There will not be a branch of the bureaucracy looking over what is and what isn't free speech in our country.

I believe it's going to be a more accountable system. I believe it's going to be more open to Canadians. A system that is more open and transparent to Canadians can only be a good thing.

As for whether or not the Canadian Bar Association likes that openness and transparency, I can't control that, but I believe this is going to be a real plus, not only for free speech for our country but for the process and for respecting our natural rights as Canadians.

[Kyle Seeback, Conservative, Brampton West, ON]

So I take it that what you're saying—and I know you've talked about it somewhat today—is that you think hate propaganda should be dealt with exclusively under criminal law, as recommended by the 2008 Moon report.

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

Yes. Professor Moon actually said it quite well on page 31 of his recommendations. He addresses the fact that he believes that this should be moved from section 13, which is vague, loosely worded, and difficult to enforce in our country, to the Criminal Code, which isn't vague and which gives you all your natural rights as a Canadian, including the right to an attorney and so forth. It really balances out the system so that Canadians can have openness and transparency when dealing with hate speech. That's where this should be at.

It really is telling when the Canadian Human Rights Commission hand-picked Dr. Moon to look at this and Dr. Moon's own report says that section 13 should be repealed, as well as the penalty clauses, and that this should be moved into the Criminal Code of Canada. Obviously the minister has also commented in the House of Commons that he believes this is the right path, and the government is going to look at strengthening any amendments to the Criminal Code that need to be strengthened to ensure that a crime as serious as hate speech is taken in that light.

[Kyle Seeback, Conservative, Brampton West, ON]

Great.

Some suggest that we could just rewrite section 13 and therefore make it a little clearer, or try to clean up some of the vagaries. Do you think that's a way that we should perhaps go down or look at?

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

No, I don't believe a few simple amendments will change the fundamentally flawed nature of section 13 itself.

The other aspect is that section 13 actually provides a two-tiered system of looking at hate speech in our country. As I said, I would hate to be the person who tries to decide, “Okay, this is definitely hate speech, but it's not that bad, so we'll only give a $5,000 fine. This other one is definitely hate speech and it's more egregious, so....”

You know, if you're targeting an identifiable group with hate speech, you should be prosecuted for it. It should be taken seriously. There should be one code for it, not these different principles. If it's just a difference of opinion, if that's what it is, then that's what it should be left at as well.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Seeback.

Mr. Sandhu.

[Jasbir Sandhu, NDP, Surrey North, BC]

Thank you, Chair.

You talked about the fact that if we take this section out of the act, somehow the police will take hate crimes more seriously. Are you implying that we or the police don't take it seriously right now?

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

What I'm implying—or I'm not implying it, I'm saying it—is that right now, under section 13, that's not investigated by the police. That's investigated by the commission itself, so through the commission and then through a tribunal.

At the end of the day, what I'm saying is that these offences are of a serious nature and should be investigated by the police. If you have a case of hate crime, it's serious, and it should be investigated by the police. It should be looked at in an open and transparent system with checks and balances such as we have in our Canadian judicial system under the Criminal Code of Canada. That's where it should be dealt with, not under a quasi-judicial body that often nobody hears or sees, where the rules of evidence ebb and flow on a daily basis, depending on who's presiding over the case. This is not, I believe, where these types of offences should be looked at.

[Jasbir Sandhu, NDP, Surrey North, BC]

You described the Canadian Human Rights Tribunal in a very different way. You talked about it as being closed, as secretive. Do you think we have any sort of use for the Canadian Human Rights Tribunal?

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

Well, what I'm discussing here is the way in which section 13 has been practically dealt with by the Canadian Human Rights Commission itself. It's not just my comments or my words for it, as has been stated by Mr. Seeback. Dr. Moon, who was appointed by the commission itself to study section 13 and study all these aspects we've been talking about, came back and actually recommended that section 13 should be repealed and that the Criminal Code of Canada should be beefed up so that this can be dealt with under the Criminal Code.

I think it's important to note that in my legislation I've taken into account the fact that.... You know, I'm not saying that I have a prescriptive “this is the only way forward to do it”. I've said that I'm open to some technical amendments the government is looking at should they fall within the spirit of the legislation. I put a one-year implementation period into this bill because I realize it's not my job as a private member to make the adjustments to the Criminal Code. That's the job of the Government of Canada and the Minister of Justice. So I put a one-year implementation period in there, through consultation with people in the field, to give us the ability and the time to make sure that the Criminal Code is exactly where we need it to be so that we can look after these cases in the serious manner in which they deserve to be looked at.

[Jasbir Sandhu, NDP, Surrey North, BC]

You talked about section 2 of the charter with regard to freedom of expression, freedom of the press. I just want to quote from the section before that--that you could have “reasonable limits” on freedom of speech.

I'm not a lawyer, but in a criminal case the burden of proof is much higher than it is at a tribunal. Speaking as a minority, as a minority member, I think sometimes you need to look at a burden of proof that could be a little less than a criminal proof but still be hateful. I think this is another channel for us to pursue or to take a look at hateful acts or expressions by people.

How would you respond to that?

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

First of all, in the beginning you talked about section 1 of the charter, which in the end states, “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. I believe that's what you were referring to, correct?

The important part there is where it says “demonstrably justified in a free and democratic society”. We've already established the fact, and there's been no refutation, that this is a loosely worded, vague law that has been abused over the 40-plus years it's been in play. I don't know how that would fit the restriction that section 1 actually puts on it, saying that it has to be demonstrably justified.

To your burden-of-proof argument, which is an argument the official opposition made in the House of Commons during debate, I believe what you're pushing for is a two-tiered system of hate speech in our country. I believe—and I do understand we're at a difference of opinion with this—that this actually demeans how serious in nature hate speech is.

If somebody is practising hate speech to the extreme extent of which the Supreme Court of Canada talked about section 13 needing to look at, then that needs to be dealt with in a serious manner. It needs to be investigated, as I think you would agree, by the police. It needs to be presided over by a judge in an open and transparent system, which in our democracy has been the Criminal Code of Canada for the entire length of time we've been a country. I think that's the mechanism in which we should be looking at this.

I hope when we talk about the different groups that are endorsing my legislation.... I do bring up the Muslim Canadian Congress, the Canadian Jewish Congress, PEN Canada, the Toronto Star. This is a diverse group of people with different backgrounds and different ways of looking at the issue. Seeing the support that I've had from these groups and continue to have from Canadians as a whole, I'm hoping we'll be able to sit down, Mr. Sandhu, and find a way in which we can get some opposition support on this. I believe issues like this are too important not to be looked at in a non-partisan light so that we can cooperatively look at this legislation.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

Mr. Storseth, it's clear in my mind that you believe the proper forum for hate propaganda is the Criminal Code. You've commented on transparency, and of course the superior training of the judges who sit there.

Certainly you're not a proponent, I guess, of hate speech, but of course the criminal system has certain restraints, one of them being prosecutorial discretion and the second one being the burden of proof, which Mr. Sandhu has alluded to.

Is it your feeling that perhaps the exercise of discretion, with of course the burden of “beyond all doubt” in criminal prosecution, is a further safeguard of the right to liberty of expression? It is a fundamental right, is it not?

What are your thoughts on that?

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

This is the system our judicial system survives under. This is one of the checks and balances we have.

When the opposition talks about the burden of proof, I'm not heartened by the fact that they believe it's okay.... I don't want to put words in their mouth, but they seem to believe it's okay, for certain instances, to not really be able to prove it, but as long as you feel like you may have been offended, there should be a punishment.

I don't believe that's what Canadians feel. It's not so much about how I feel about it. I'm speaking on behalf of the literally thousands and thousands of Canadians who have contacted me in my office on this legislation.

As I said when going through the chronology, this isn't something I just picked up last week and decided to put forward in a private member's bill. The fact of the matter is that I worked on this with Mr. Dykstra when he proposed it in 2007. I proposed it again in 2008. I note that this committee, in the minority context in which the government was outvoted, still found, through their study in 2008—Mr. Rathgeber was here, so he might be able to comment on it—that there were severe flaws with section 13, even in a minority context.

So when you go through the chronology of this and how extensive and how long a process this has been, I think we've done our due diligence. I think we've consulted with Canadians. I think we've consulted with the bureaucracy on it. I believe it's time we repealed section 13 of the Canadian Human Rights Act.

I actually believe Canadians as a whole are onside with this, no matter what aspect of the political spectrum you come from.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I'm going to share my time with Mr. Jean.

[The Chair, Conservative, Dave MacKenzie]

Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair.

Mr. Storseth, you mentioned some individuals, one being the Toronto Star, who seem to be in favour of your position on this particular bill. Actually, it made me give second consideration to your movement when I saw that they were in favour of it.

Some other associations have also come out in favour of this: PEN Canada, the Canadian Association of Journalists, the Canadian Civil Liberties Association, the Muslim Canadian Congress—I was surprised—Ezra Levant, Mark Steyn, and Maclean's Magazine.

I want to point out one particular group, a gay rights lobby group called Egale Canada, which you mentioned. They came out in favour of your position. It wasn't that long ago that if you said something pro-homosexual you would actually be censored, so they felt that your position on this—and eliminating section 13—was the best position.

Are there any other groups that I've missed mentioning? These are groups that represent a distinctively different part of Canada from those that usually come out and support positions of this government and, in particular, of a Conservative from Alberta.