Bill C-304 (Historical)

An Act to amend the Canadian Human Rights Act (protecting freedom)

This enactment amends the Canadian Human Rights Act by deleting section 13 to ensure there is no infringement on freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms.

Canadian Human Rights Act

[Françoise Boivin, NDP, Gatineau, QC]

Madam Speaker, I am not really convinced by my colleague's answer to my question, but I am very open to debate in the House, to open and willing debate by those who wish to express their opinion about an issue. A number of important questions were raised in the House and they were all quickly dismissed by the government.

I am willing to believe that this bill is sponsored by a member who is not a minister, parliamentary secretary or other government member, but that does not mean there is not a problem in the House. People are constantly being prevented from debating. I was just informed that we will be voting tomorrow, once again, to limit debate at third reading. We come to the House and are told that we will be debating a certain issue. Bills are introduced. Sometimes the bills are very lengthy and require examination from different perspectives. However, as soon as there is an objection, limits are imposed on the time for debate. At second reading, we are told that we can debate the bill during the clause-by-clause study in committee. I just came from a committee meeting studying Bill C-10. We are practically being subjected to closure again in order to end the clause-by-clause study. We are talking about 208 clauses in a bill that will fundamentally change many things.

We have been told this evening by someone opposite that Bill C-304 is being introduced to protect freedom of speech. I have a great deal of difficulty believing words like that coming from anyone on the government bench and believing in their sincerity.

The people watching us are entitled to know what Bill C-304 is all about. Basically, it repeals section 13 of the Canadian Charter of Rights and Freedoms, which prohibits hate speech.

This section was deemed to be consistent with the law by the Supreme Court. A few years ago there was a decision by a commission. It would follow the normal course. Since then, it seems to have put a chill on everyone. However, the Supreme Court had already ruled in Taylor that section 13 was within the law and that it was required in a free and democratic society.

It is important to understand that the Canadian Charter of Rights and Freedoms imposes limits on each right and each freedom. For one person, it is a right and for another, their right ends where the other person's begins.

The government has to stop scaring people, which is another one of its specialities. It is scaring people and leading them to believe that good citizens will be cheerfully brought before the courts to have their right to freedom of expression challenged and that it will cost them a fortune. There have not been tons of grievances. It is not as though everyone is running to the Human Rights Commission to file a grievance against someone for hate speech under section 13. I repeat: hate speech. The law also defines hate speech. It is not a small burden of proof. It is not just telling someone that you do not like the way they look. That would certainly not be considered hate speech.

However, I received a tweet asking me what I was going to do as the member for Gatineau about an issue that involved my former leader, who unfortunately passed away this summer, being compared to a member of the Gestapo and to Hitler by an Internet site called Park Avenue Gazette—not to give it publicity. It is so disgusting; it makes me sick to read things like that. People dig things up and use symbols from things that happened during the second world war and attribute it to people who are human beings. Imagine how those people or their families feel when they see such things.

We are always being told by the members opposite that the Criminal Code already provides for certain things. The member for Westlock—St. Paul did not answer my question.

He did not answer it, because the problem is that the burden of proof is significantly different if we rely strictly on the Criminal Code. The fact that there are remedies under a “permissible” provision and under the Criminal Code, which means indictments or summary conviction offences, as well as civil remedies or remedies under the charter is nothing new. That is the case here.

The Criminal Code is based on a different system of evidence. We can require proof beyond a reasonable doubt, while under the Canadian Charter of Rights and Freedoms, the burden of proof is somewhat less. There is a lot of window dressing involved to protect the freedom of expression. However, the freedom of expression does not give me the right to strongly criticize someone for any reason, to make that person feel like he is a nobody who does not really deserve to live.

Would that justify a remedy under the Criminal Code? I have serious doubts about this. Our crown prosecutors already have their hands full and they will have even more work with the government's Bill C-10. Therefore, I have a hard time imagining a crown prosecutor taking an interest in issues whose interpretation can vary depending on a number of things. The Canadian Human Rights Commission was a specialized organization responsible for examining a case and determining, before the matter would end up in court, whether there were grounds for complaint under the Charter of Rights and Freedoms.

We do not want that because many friends of the government—I am exaggerating here, let us just say some friends—not to mention reporters from western Canada, tried to get some things through and have been complaining for a long time that section 13 prevents them from saying everything they want to say. We live in Canada and I always thought that we should be respectful of one another, that we could disagree, but that we were not allowed to denigrate an individual. That is what this is about. Making someone feel like a nobody, sometimes in a systematic way, has nothing to do with freedom of expression.

I cannot believe that the Conservatives want to have anything to do with these sites that disparage francophones, people who believe in bilingualism and in the French language, and people who believe this country exists thanks to two nations, including the aboriginal nations. I cannot believe they want to wash their hands of this and allow people to say whatever they want. It would be like me saying my colleague here is a so-and-so, but it is no big deal because I have freedom of expression.

I agree that it is important to have this debate and I would never want to stop it from happening. I hope that as many people as possible will stand up and talk about this and reiterate loud and clear what the Supreme Court of Canada said in the Taylor decision.

When Chief Justice Dickson upheld the constitutional validity of section 13 in Taylor, he spoke on behalf of the Supreme Court. I will close on this, but I have so much more to say. Again, my freedom of expression will be kept in check because of the limited amount of time we have to talk about this. The following is an excerpt from that ruling:

Parliament's concern that the dissemination of hate propaganda is antithetical to the general aim of the Canadian Human Rights Act is not misplaced. The serious harm caused by messages of hatred was identified by the Special Committee on Hate Propaganda in Canada, commonly known as the Cohen Committee, in 1966. The Cohen Committee noted that individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including a loss of self-esteem, feelings of anger and outrage and strong pressure to renounce cultural differences that mark them as distinct. This intensely painful reaction undoubtedly detracts from an individual's ability to, in the words of section 2 of the Act, "make for himself or herself the life that he or she is able and wishes to have". As well, the Committee observed that hate propaganda can operate to convince listeners, even if subtlety, that members of certain racial or religious groups are inferior.

I could go on about this at length. It is a great debate to be had and I hope Canada will not repeal section 13 of the Canadian Human Rights Act.

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

Madam Speaker, I thank the hon. minister not only for his gracious words but his dedication to freedom of speech, freedom of religion and assembly, which he has fought for his entire political career.

He is absolutely correct. Bill C-304, protecting freedom, is not about left versus right. This has support from the Muslim Canadian Congress, civil libertarian groups and journalists across the political spectrum. The only thing lacking today is support throughout the House of Commons. I would like to see all members of Parliament set their partisanship aside and vote on an issue like this with their own principles rather than what the party whip wants them to do.

At the end of the day, it is debates like this that we need to have in a respectful fashion, but Canadians also expect us to vote our consciences when it comes to these types of issues. That is why it is so very important that we not only keep this debate respectful but that we also engage in an open, honest and transparent debate.

[Françoise Boivin, NDP, Gatineau, QC]

Madam Speaker, I would like the members opposite to be as respectful of the right to freedom of expression as they have such little respect for the right to debate. The Conservatives' like freedom of expression, but do not really like debates, as they are constantly shutting us down. At times we do have to question the logic and the merits of Conservative positions.

I would like to pose a question to the member who introduced Bill C-304. Being cognizant—at least I hope he is—of the different burdens of proof in the Criminal Code and the Canadian Charter of Rights and Freedoms, does he not think that eliminating recourse to section 13 of the Charter increases the burden of proof and makes it difficult to have any recourse against hate propaganda?

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

moved that Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom), be read the second time and referred to a committee.

Madam Speaker, it is an honour to be here to present a bill that is very near and dear to my heart and to the House of Commons.

I would like to begin by first thanking the people of Westlock--St. Paul for the trust that they have placed in me in a third consecutive election to bring forward their concerns in this august chamber.

I would also like to thank my friends and family for their support and dedication over the last six years; my parents for their willingness to always pitch in and help; my children, Ayden and Eastin, for their endless patience and love; and, most importantly, my wife Amel, who is my best friend and the rock that anchors our family. Without their love and support, this job would be so much more difficult.

I would also like to thank my colleagues, both past and present, who have stepped forward to support Bill C-304, protecting freedom.

While my bill will have some technical amendments at committee stage, it would help to protect and enhance our most fundamental freedom, and that is the freedom of expression and speech. As George Washington said, “If the freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter”.

Truly, without freedom of speech, what is the use of any other freedoms, such as the freedom of assembly or the freedom of religion?

The freedom of speech is the bedrock that all other freedoms are built on. This, along with the concept of natural justice and due process, has been woven into the fabric of our great country over the last 144 years. As we were reminded only a few short days ago during Remembrance Day, tens of thousands of Canadians have given their lives to protect these fundamental freedoms. That is why I stand before the House today.

Section 13 of the Canadian Human Rights Act eats away at this fundamental freedom. Most people are shocked when I explain to them that in Canada, right here in our own country, a person can be investigated under a section 13 complaint for having likely exposed a person or persons to hatred or contempt by reason of the fact that the person or persons are identifiable on the basis of a prohibited ground of discrimination.

The key word is “likely” to have exposed. I think we can all agree that this is a very subjective and unnecessarily vague definition, not one of the narrowly defined legal definitions that would be far more appropriate for this clause. This is where section 13 truly fails to make a distinction between real hate speech and what I often term as “hurt speech”, or speech that is simply offensive.

This means that if someone has offended somebody and is investigated under section 13 of the Canadian Human Rights Act, intent is not a defence. Truth is no longer a defence. The person would no longer have the right to due process, the right to a speedy trial, or even the right to a lawyer to defend himself or herself. In fact, in 90% of the human rights investigations under the Canadian Human Rights Act under section 13, the defendants do not even have legal advice, because they simply cannot afford it. When the people of Westlock--St. Paul hear about this, they are shocked. This is simply not the Canadian way.

Facing intense criticism in 2008, the Canadian Human Rights Commission hand-picked Professor Richard Moon to provide an evaluation of section 13 of the Canadian Human Rights Act. On page 31 of his report, in regard to the repeal of section 13 and reliance on the Criminal Code hate speech provisions, Dr. Moon states:

The principal recommendation of this report is that section 13 be repealed so that the censorship of Internet hate speech is dealt with exclusively by the criminal law.

This recommendation was dismissed by the Canadian Human Rights Commission, which in turn provided a list of recommended amendments to Parliament in 2009, none of which has been implemented to date. Thus, even the Canadian Human Rights Commission has admitted with its own recommended amendments that there are serious flaws within section 13.

Section 13 of the Canadian Human Rights Act has been a contentious topic for a number of years now, and it has been widely acknowledged that it does, in fact, impede paragraph 2(b) of the Charter of Rights and Freedoms, which states that everyone has the fundamental freedom to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

This conflict between section 13 of the Canadian Human Rights Act and paragraph 2(b) of the charter has been reaffirmed by the Canadian Human Rights Tribunal, which found that section 13 was in fact unconstitutional in September 2009.

A common argument in favour of section 13's right to censorship and its constitutionality is the overruling powers provided by section 1 of the Charter of Rights and Freedoms, an argument that I am sure the opponents of my bill will bring forward.

Section 1 does provide a provision within the charter to ensure that all guaranteed rights and freedoms are subject to:

...such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

There are but a few issues with applying this provision to section 13.

Most importantly, section 13 lacks the ability to demonstrably justify the limits that it imposes on our society. It does not define the difference between hate speech as opposed to hurt feelings and offensive speech.

Second, how can a loosely written, highly subjective, vague law such as section 13 override the Charter of Rights and Freedoms in a free and truly democratic society?

Section 13, which is intended to protect people from extreme acts of discrimination with regard to hate messages, as previously defined by the Supreme Court of Canada, has instead been used to address differing values or opinions and impedes one of the most basic civil liberties that we hold dear to our hearts, the freedom of expression.

I believe the true issue of debate here is this: at what point and to what extent is censorship justified in Canada today?

As I debate this question, I think of my good friend and constituent Bob Herrick, from Waskatenau, Alberta.

Bob is a very bright and very successful man who, like many in his generation, has had a tremendous life and tremendous experiences to go along with it. He holds some very diverse opinions. No matter what topic we are discussing, from hunting to political philosophy, Bob loves to test our convictions and boundaries. Often while trying to challenge someone's assertions, Bob will go well beyond political correctness and often be even a little bit offensive. It is his ability and his freedom to push the limits of political correctness, however, that truly test the merit of our own beliefs. In society, when we lose the ability to test limits for freedom of expression, we also lose the ability to grow and adapt peacefully as a country.

It is through freedom of speech and expression that we change governments here in Canada, not through riots and revolts. This is one of the unique factors that sets us apart from many countries in the world.

Women such as Nellie McClung gained the right to vote by testing societal norms through expression and freedom of speech.

Layer by layer, brick by brick, our country has grown and successfully developed by utilizing and enhancing our fundamental freedoms. Today that we must continue to fight the tyrannical nature of the bureaucracy to censor free speech and to tell us what boundaries should be placed on our society and what rights we have as individuals.

One might ask how we can ensure individual freedom of speech and at the same time protect people and identifiable groups from direct harm if we repeal section 13 of the Canadian Human Rights Act. The answer to the question is that we must direct these complaints to a fair, open and transparent judicial system, one that has been tested for hundreds of years within our own country.

With the repealing of section 13, individuals would still have recourse through both the civil and criminal justice systems. Sections 318 to 320 of the Criminal Code provide protection for identifiable groups when public communications invite hatred or harm against them. The continued use of the Criminal Code to address hate messaging would ensure that all individuals would be protected from threatening discriminatory acts while preserving the fundamental right to freedom of expression in our country.

An integral component of the Criminal Code is the need for the Attorney General to approve a claim. This prevents frivolous claims or claims made because an expression merely offended another individual.

It is also important to note that the Criminal Code provides basic provisions to the defendant that are not available through the Canadian Human Rights Act. I repeat. The provisions I am about to talk about are not actually available to Canadians under the Canadian Human Rights Act. These are provisions such as allowable defences; the right to face one's accuser; the right for the defendant to recover costs if a claim is dismissed; and the right to an open, fair and transparent trial.

Those are just a few of the basic liberties available under the Criminal Code. This is a system that has been tried and tested, a system with checks and balances and a system with which our society has entrusted its fundamental freedoms and has seen fit to enforce the rule of law in our country.

John Fitzgerald Kennedy described it best when he said:

We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.

Freedom of speech and the use of censorship on that freedom is not a matter to be taken lightly and should be entered into with the utmost of caution. That is why I personally find it highly alarming for our Canadian human rights investigator, someone entrusted as a gatekeeper of our fundamental freedoms, this valued freedom of speech in Canada, to claim it merely to be an American concept.

This is precisely the mentality that section 13 of the Canadian Human Rights Act is harbouring and just one more example of how unfit section 13 and the commission are to handle any level of power to censor speech in our country.

Freedom of speech is just as valued here in Canada. In fact, it is the only real tool that free and democratic societies like our own have to fight bigotry and ignorance. Any imposed censorship on this freedom must be taken very seriously and not met with casual disregard.

The solution here is not to fiddle with a broken, repetitive and unnecessary system. I believe the solution is to use the laws we already have and provide authorities with the tools and support necessary to properly and carefully enforce these laws.

The government has already announced that support to enhance the ability of the Criminal Code to better address hate messaging. This step, as well as the one year implementation period in my bill, would ensure the successful transition to a system in which true democracy and freedom of speech can thrive.

It is time we retract the power entrusted to the quasi-judicial bureaucratic system to deal with hate messaging in prevent the future abuse of the system. Freedom of speech is the bedrock upon which all other freedoms are built and, therefore, is too precious to leave under the thumb of censorship imposed by this system. Without freedom of speech, what good are our other freedoms, we may ask.

Finally, I would like to encourage all of my colleagues to stand up and protect our fundamental freedoms, the same freedoms for which we have asked our soldiers to put their lives on the line to protect time and time again. This truly is not an issue of blue versus orange versus red. This is an issue of freedom, transparency and balance for all Canadians.

Employment Insurance Act

[The Deputy Speaker, NDP, Denise Savoie]

Order, please. The hon. member will have about seven minutes remaining when this bill returns to the order paper.

The time provided for the consideration of private members' business has now expired, and the order is dropped to the bottom of the order of precedence on the order paper.

Pursuant to Standing Order 37, the House will now proceed to the consideration of Bill C-304 under private members' business.

Human Rights

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Mr. Speaker, first of all, I would like to congratulate the hon. member for Westlock—St. Paul for introducing this legislation, and for his commitment to the promotion and protection of free speech among all Canadians.

Our government believes that section 13 is not an appropriate or effective means for combatting hate propaganda. We believe the Criminal Code is the best vehicle to prosecute these crimes.

Therefore, I urge all members to support Bill C-304 and our government's forthcoming amendments to strengthen the hate provisions of the Criminal Code. I say to the opposition, get on side with the media. Maclean's magazine, the National Post and even the Toronto Star say this section should go.

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

Mr. Speaker, Canadians across the country are increasingly concerned that section 13 of the Canadian Human Rights Act infringes upon our most important human right, namely the freedom of expression.

This is the reason why I was pleased to introduce Bill C-304, which will repeal section 13.

My bill has the wide-ranging support of journalists, civil libertarians and the Muslim Canadian Congress. People from all points of the political spectrum agree that this part of Canada's Human Rights Act needs to be repealed.

Can the Minister of Justice please inform this House of the government's position on Bill C-304, protecting freedom?

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

Mr. Speaker, I rise today to talk about my protecting freedom bill, an act to amend the Canadian Human Rights Act which would repeal section 13. Section 13 of the Canadian Human Rights Act erodes the fundamental building blocks upon which our society is built. These are not just the freedoms that every Canadian holds so dear, but also the freedoms that our society depends upon to grow and mature.

As George Washington described, “If freedom of speech is taken away, then dumb and silent we may be led like sheep to the slaughter”. Freedom of speech is the bedrock upon which all other freedoms are built. Without the freedom of speech and expression, what good is the freedom of assembly or the freedom of religion? Freedom of speech is the only real tool that free and democratic societies have to fight bigotry and ignorance.

We must ensure that we protect and enhance our fundamental freedoms. This is not just an issue of blue or orange, left or right. This is an issue that affects all Canadians equally. I am asking all members to stand and support Bill C-304, my protecting freedom bill.

[The Chair, Conservative, Harold Albrecht]

Does anyone have questions or concerns?

Bill C-304 is considered votable.

Next is Bill C-309.

[The Chair, Conservative, Harold Albrecht]

Okay. For Motion No. 269 there are no concerns.

Bill C-304 is next.

Canadian Human Rights Act

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

moved for leave to introduce Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom).

Mr. Speaker, I rise today in this House to introduce a bill entitled “An Act to amend the Canadian Human Rights Act (protecting freedom)”.

Freedom of speech is a fundamental principle in our democracy and one which Canadians have fought and died for, for over a century. This is not a fight that one Canadian can take on himself, but rather an issue that all Canadians must engage in vigorously.

In this, I would like to thank my friends and colleagues such as Senator Finley and the member for St. Catharines, who have rigorously pursued a freer, more open society and resisted the tyrannical instincts of bureaucracy to censor speech in our great country.

Freedom of speech is the freedom that all other freedoms are built on. It cannot be restrained to the politically correct. The best way to fight bigotry is to ensure that we protect and enhance our fundamental freedoms in this great country of ours. That is why I ask all members in this House to support this bill that protects the fundamental building block of democracy: freedom of speech. God bless.

(Motions deemed adopted, bill read the first time and printed)