Evidence of meeting #32 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was we've.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Frank Dimant  Executive Vice-President, B'nai Brith Canada
  • David Matas  Senior Legal Counsel, B'nai Brith Canada
  • Marvin Kurz  National Legal Counsel, League for Human Rights, B'nai Brith Canada
  • Eric Nielsen  Counsel, Human Rights Law Section, Department of Justice

11:25 a.m.

Senior Legal Counsel, B'nai Brith Canada

David Matas

The actual terminology in the law is “likely to incite hatred”. The issue that has arisen here is that there is no intent requirement; there's an impact requirement.

As I said in answer to your previous colleague, our concern is not actually with the substantive content of the text, nor with the decisions of the tribunal. We do agree there's room for a civil remedy.

The problem we have with this provision, as with the provincial ones as well, is procedure. There is a lower threshold. There is no attorney general's consent. There's no requirement of intent. Anybody can complain. There are no costs to the complainant. The commission investigates on its own. The complainant doesn't have to appear. It becomes very easy to abuse.

What we have seen is substantive abuse in various jurisdictions, including the federal one, and that's the problem.

11:25 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

One thing I've got to add is that the definition of the term “hatred” in both pieces of legislation is the same. It's the definition the Supreme Court used in its trilogy of 1990 cases.

As well, if you look at the Moon report, its first recommendation is to call for the abolition of section 13. He says that the actual cases decided under section 13 are all the worst of the worst.

I remember having a conversation with Professor Moon and going through every case, and he admitted that each one of them was the worst of the worst. Almost every one of them could probably be prosecuted criminally.

The intent under section 13 was to avoid the criminal prosecution, to try to deal with it in a different way and to tell people to stop.

11:30 a.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

I'm very short on time.

Mr. Matas, thank you for your answer, and also Mr. Kurz.

If I could expand on some of the procedural problems, you'd also agree that on a strict interpretation of section 13 there doesn't need to be actual victims. It says it's “likely to expose a person”.

If in the view of some administrator at the Human Rights Commission it's “likely to expose”, without having any people actually complaining, that could also attract the attention of the Human Rights Commission. Would you agree?

11:30 a.m.

Senior Legal Counsel, B'nai Brith Canada

David Matas

In theory, the Human Rights Commission does have a power to initiate complaints on its own when there is no complainant. That hasn't been, I must say—

11:30 a.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Sure. But you're familiar with Mr. Warman. Mr. Warman filed complaints on behalf of identifiable groups that he was not a member of.

11:30 a.m.

Senior Legal Counsel, B'nai Brith Canada

David Matas

Do you want to say something?

11:30 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

The thing at the end of the day is that you're asking us now to defend section 13, even though we—

11:30 a.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

I'm asking you to agree with me that it's a problem.

11:30 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

Actually, I don't think that's the biggest problem. For us, that's not the problem. There are many, even criminal offences, in which the public as a whole is the victim. If somebody goes around saying that Jews are all thieves, they're attacking....

First of all, whether it's Richard Warman who goes to the Human Rights Commission, or it's Marvin Kurz who's a Jew who goes to the Human Rights Commission, that doesn't change who the victim is. When Richard Warman did what he did, he didn't say he was the victim.

What was important is that it had to be picked up by the commission. And don't forget, a decision had to be made by a tribunal.

11:30 a.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

I have one final question, if I have time, Mr. Chair.

Would you agree with me that true hate speech is so odious that it ought to be captured by the Criminal Code and not by the Human Rights Code?

11:30 a.m.

Senior Legal Counsel, B'nai Brith Canada

David Matas

I think there is room for a civil remedy. As I say, structurally what was.... I mean, if it weren't for the procedural problems, I think the law would make sense. The civil law doesn't send anybody to jail. It doesn't penalize anyone. All it does is say don't do that again, and what they're not supposed to do again is very clear. If they do it again, then it becomes contempt of court.

My view is that in order to combat hate speech effectively, you need a range of remedies. The first is simply education and advocacy and information. The notion that it has to be either the Criminal Code or nothing I think gets us to a situation where nothing ends up being done, because the Criminal Code is too draconian.

11:30 a.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Mr. Kurz.

11:30 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

I agree with what David said. Again, I think we do need a range of remedies. But part of what we need—and I was just thinking about David's comment about the Weimar laws and what have you—is respect for the law. We've come to a point where the public at large, for better or worse, has such an adverse view of the law that it's very difficult for it to continue.

Part of the problem with section 13 has not only.... I mean, David talked about section 13 as saying “stop doing that”. But part of section 13 was to have a conversation without even making that order. I'm hoping that will be available anyway.

11:30 a.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Thank you very much.

11:30 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Mr. Casey.