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 section.

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

11:45 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Mr. Scott.

April 26th, 2012 / 11:45 a.m.

NDP

Craig Scott Toronto—Danforth, ON

Thank you very much, Mr. Chair, and thank you all for coming.

I appreciate the testimony that has made really clear that it's not the content or the particular tribunal decisions that have been arrived at that are the worry. I think that's important for colleagues on this committee to hear, because sometimes the justifications for this bill seem to shade into a concern that only so-called offensive speech is being attacked by section 13, which isn't the case at all in the actual jurisprudence.

You are more concerned with all kinds of dimensions of abuse of the system. And I think that's important, because to me, it leaves open the possibility that we can fix the system without, as my colleague has said a couple of times, throwing the baby out with the bathwater.

That said, it was with a heavy heart that I heard Mr. Kurz say that his hope was that the legislation could be fixed, but he doesn't see any legislation on the table to fix it. There were a few times in your comments when you said that you feel as if this is a fait accompli.

I'm just wondering whether you've made efforts, or if you know others who have made efforts, with the government itself—this is a private member's bill—to actually fix section 13 in the ways you've been suggesting.

11:45 a.m.

Senior Legal Counsel, B'nai Brith Canada

David Matas

We have, very much so. You can look at our website. We've advocated for years for many of the procedural reforms we're mentioning to you now. We've had something posted on our website for years on this issue. We have shopped it around, so to speak. Unfortunately, this is the situation we're faced with. In fact, as your colleague across the floor mentioned, things to a certain extent have deteriorated, because at one time there was a view among these tribunals that they could award costs, and the Supreme Court of Canada said no, they can't.

I'm not quarrelling with the legal correctness of this decision, but it has made matters worse. What we see is that we advocate reforms, but in the meantime, all the abuses are accumulating and the reforms don't happen.

11:50 a.m.

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

Marvin Kurz

We need to see as well that it has gotten worse. I was asked by Mr. Casey about what's happened in the last few years. Don't forget, and one thing that's never mentioned, there's a penalty clause in the Canadian Human Rights Act, which is a terrible mistake. I remember being at the Zundel hearing, and a number of counsel were standing together and we found out that Parliament passed the penalty clause. We said to ourselves, what were they thinking? If there was a sure way to get rid of the legislation from a constitutional point of view, it would be to add a penalty clause to make punitive a piece of legislation that wasn't meant to be punitive.

Let me just say one other thing—

11:50 a.m.

NDP

Craig Scott Toronto—Danforth, ON

I do have another question, Mr. Kurz.

11:50 a.m.

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

Marvin Kurz

Sure. I'm sorry.

11:50 a.m.

NDP

Craig Scott Toronto—Danforth, ON

I appreciate that.

We heard quite a bit about the penalty clause on Tuesday, especially the Canadian Bar Association actively advocating that it be removed, central to the Lemire decision but with some of the problems.

11:50 a.m.

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

Marvin Kurz

That was our position on Lemire before the court.

11:50 a.m.

NDP

Craig Scott Toronto—Danforth, ON

That's great.

Here's what I would ask for your feedback on. It is a shame the way our parliamentary process seems to be working in general here. As soon as you folks leave, it looks as if we're going to be going to a clause-by-clause consideration. It would be so much better, after having heard witnesses on Tuesday, and now you here, that we have time to reflect, debate, and then go to clause-by-clause. That doesn't look to be the case in terms of the procedure we've inherited. It's no fault of the chair or anybody else.

If I were to say that the amendments proposed by Mr. Cotler were to be adopted as a halfway house to fix parts of section 13—consent of the attorney general, non-abuse in terms of no multiple proceedings, and elimination of the penalty clause—and then there would be the expectation that we would continue to work on fixing sections 13 and 54 together, would you be open to that, if this committee could work on those terms?

11:50 a.m.

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

Marvin Kurz

Sorry, I've tried to jump in, and perhaps rudely so.

We've talked about the consent a number of times as if it's a saving. I'm a lawyer, so like other lawyers I figure like a carpenter I can fix every problem with a hammer and nails.

The consent is a red herring, in my respectful view. If you were to read Chief Justice Dickson's majority decision in Keegstra, there isn't a word about what they call the attorney general's fiat that's used to save the legislation. The attorney general's consent, whether in section 13 or section 319, is irrelevant. We had advocated for years getting rid of the attorney general's consent because there seemed to be no constitutional dimension to it. That won't save it.

11:50 a.m.

NDP

Craig Scott Toronto—Danforth, ON

I'm not saying save it. My question was about whether we can start the process.

11:50 a.m.

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

Marvin Kurz

It won't make it better. What I'm saying is it's not enough.

11:50 a.m.

Senior Legal Counsel, B'nai Brith Canada

David Matas

You present a hypothetical and ask if we're open to it. Sure, we're open to everything. We can only react to what we see in front of us right now. We have no views on parliamentary process. That's not the ambit of our organization.

Obviously, Mr. Cotler sees the same problem we do and is attempting to address it. I appreciate where he's coming from, and indeed we're coming from the same direction. I wish all the wisdom of parliamentarians together to solve this problem.

11:50 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Mr. Jean.

11:50 a.m.

Executive Vice-President, B'nai Brith Canada

Frank Dimant

If I may, I understand the mood of the Canadian public and the perceptions out there that any kind of band-aids that will be applied right now may be very good band-aids. We would probably be very enthusiastic, but they will not be seen as healthy by the Canadian people. We should remember that as a human rights organization.