Subcommittee on International Human Rights Committee on June 16th, 2009

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

I am talking about negationism. Is that okay?

Basically, there are two opposing theories in this kind of debate. There are those who defend freedom of expression, those who say that you cannot impose an official historical truth. Then, there are those who take the side of the victim.

For example, suppose I am attacked, beaten or raped by thugs. I go to court and have them convicted. Then, the thugs or their friends start saying that I made it all up, that what happened to me never happened. When they do that, they increase my pain and suffering a lot. The first thing that someone who has suffered so much pain or such a great injustice needs, after all, is the recognition that he has been wronged.

This is the debate between those who say that you cannot impose an official historical truth—people have the right to believe the version of history that they want to believe—and those who take the side of the victims.

What is your position? How do you see that question yourself?

[A. Borovoy]

I am not one who thinks that a democratic society has any business determining what its citizens shall believe and thereby using legal sanctions to enforce it. Having said that, I'd be very much in favour of using numbers of other sanctions, if people make racially obscene remarks. As an example, when the material was revealed concerning Keegstra and what he had done in his class, he was removed from the class, he was ousted from the teaching profession, and the voters of the community of which he was mayor voted him out of office. I think that was entirely appropriate. Those were sanctions, but they weren't the legal sanctions. They weren't illegal, of course, but they weren't the sanctions of the law. They were the sanctions of public opinion, expressed in I think very constructive ways, and at that point I saw no point in prosecuting him. He should have been allowed to wallow in the obscurity he so richly deserved.

[Jean Dorion, Bloc, Longueuil—Pierre-Boucher, QC]

Thank you.

[The Chair, Conservative, Scott Reid]

Thank you.

Mr. Marston.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Thank you, Chair.

I certainly appreciate having this witness before us today.

I would suggest, sir, that when you referred to the Canadians who stand up to intolerance, or stand up to hatred, you could practically include everybody in this room in one fashion or another. I would suggest that for many of the folks who are elected here, part of the reason we wind up in this place is a result of our standing up for rights of people in one way or another over a period of time, which then gives you a little bit of name recognition.

In Hamilton we had an initiative on strengthening the Hamilton community, which dealt with the aftermath of a fire bombing of a Hindu samaj following 9/11, a very serious hate crime. The individual couldn't tell the difference between a samaj and a mosque. We had the Community Coalition Against Racism. There were times when one or the other of these organizations would raise uncomfortable issues, and to some extent you've done so yourself here today when you talked about the complicity of the peoples of Serbia and the peoples of Germany, and how far that should go.

One of the things that struck me that was a little concerning was when you made comment that perhaps the commission would be better off if it looked at imminent violence issues. To my mind, violence is usually something that happens in the heat of the moment, and there would be more responding on their part after the police had already investigated or whatever.

When it comes to the sending out of hate messages on the Internet or the media, or wherever it goes, I would suggest that this commission is well placed to deal with those areas where perhaps police forces aren't quite as sophisticated on the ground, because they haven't had the time working with it.

I'm drawn to this report—and I'm not so sure it has been made available to you—that the commission has made to Parliament. They did allude to some things in it today that are quite striking, like adding a statutory definition of hatred. That's one of the places where it's easy to misplace what is hatred and what is not, and it says “and contempt”. The important thing for me is that it draws us back to the Supreme Court of Canada and its rulings as a foundation for taking these determinations as to how we are going to make applications of the legislated designation of what the commission is supposed to do.

It goes on talking about costs and things of that nature, but this report seems to be addressing in a way some of the concerns that have been out there in recent times. I think there's a real effort.

As you can see, I'm making more of a statement than I am asking a particular question. Feel free, sir, to respond in any fashion you feel like.

I'm frightened that a body that we have in place, the Human Rights Commission and the tribunals, which is tasked with one of the most difficult jobs in our country, because of one or two very serious issues, one or two judgments that were made, is being put at risk by people in this country who could minimize or contain their ability to do their job. So coming back to where we're at with all of this, it is to find a way that if they have strayed--and that's a large “if”--then judging by the opinions of the court and whatever legislation may well flow out of this determination as to how we address it, the important part is that we don't minimize their ability to perform a very serious and very important job.

If you look at what happened in Nazi Germany, and what happened with Kosovo and the other areas, if you'd had a Human Rights Commission in place in the years before, there's a chance that people like Hitler would not have sustained the power that they did in the manner they did over the years.

I think I've opened a door here that I'm sure you will have many a comment on.

[A. Borovoy]

Have you ever.

I'll just say one word about Germany. Pre-Hitler Germany had anti-hate legislation very similar to what we have in Canada now, and in the 15-year period before Hitler came to power, there were more than 200 prosecutions based on anti-Semitic speech. And in the opinion of the leading Jewish organization of the day, they thought the prosecutions were well handled some 90% of the time. So it didn't matter at the time it was most needed.

When you talk about what you do about the Human Rights Commission, and that what I'm advocating may disable it somehow, I would say au contraire. I began by making the point that I'm very much in favour of the rest of what human rights commissions do, and I think those programs should be strengthened.

I do not think the provision or the addition in the human rights legislation of definitions of hatred would help all that much. In fact, I was rather surprised that anyone would think it would make that much difference. Just to give you one example, the definition talks about “strong detestation”. I ask a question: Is “strong detestation” any clearer than “hatred”? That is just the problem with these definitions. And it's not their fault. It's not the fault of the judges who wrote it. That's the problem when you make words like that the basis of an offence in law. There is inherent, inescapable vagueness.

Human rights commissions could still perform a valuable function where expressions of hatred are concerned. They have an educational mandate, and they could make increasingly imaginative use of that mandate to promote, to publish responses, and to undertake preventative programs. There are all kinds of things human rights commissions could do.

In all fairness, I'm not as au courant with what commissions are doing these days. I've been drifting into other fields. But at one time I worked rather closely with Dr. Daniel G. Hill, the first director of a human rights commission in Canada, the Ontario Human Rights Commission, and he had a lot of imaginative educational programs. I think there is a lot commissions could do about it.

That's why I say I want to get back to the response I gave to Mr. Rae earlier. It's not an either/or proposition. We don't have to use the legal stick or do nothing.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

I would agree with you on addressing racism. A lot of the hate we hear of is blatant racism, and addressing racism by education is the only way to deal with it. My experience is that racism is a learned behaviour.

I'm very fortunate; I grew up in northern New Brunswick, and I was never exposed to people from any other race but our own. There was friction between English and French, but.... And when I came to Ontario, to Hamilton, and I saw exhibitions of hate, particularly in early seventies--

[The Chair, Conservative, Scott Reid]

We're just over our time here, Mr. Marston, so I hope you can come to your question.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

I will come to it very succinctly.

Seeing open racism against Sikhs in Hamilton in the 1970s shocked me. I must say that is probably one of the reasons I value very dearly the work of the commissions--and as you say, you do as well.

I will end there to leave more time to the government.

[The Chair, Conservative, Scott Reid]

Thank you.

Mr. Sweet, I believe you are next.

[David Sweet, Conservative, Ancaster—Dundas—Flamborough—Westdale, ON]

Thank you, Mr. Chairman.

I'm going give the bulk of my time to my colleague, Mr. Hiebert, but I did want to say a couple of things.

First off, I agree with you, Mr. Borovoy, about the large portion of good work that the Canadian Human Rights Commission does. I think the commission is suffering from something that.... There's a phrase in U.S. jurisprudence: that the United States justice system doesn't only have to be just but has to appear just. I think there's an issue there of credibility now, publicly, that they're going to have to deal with. One witness mentioned the things in the media, and I understand that; we deal with the media all the time, trying to straighten out stories.

One of the things you mentioned about the breadth and scope of section 13 I think is eluding the commission as well. I say that in the sense that the Canadian Human Rights Act was not meant to be punitive but remedial in nature, because it would damage anybody's reputation beyond their capability to recover by simply going to a tribunal. Anyone who has a complaint lodged against him, which is easy to have happen because of the breadth of it, has to seek legal counsel, because they would be terrified of going before a tribunal that would be public and then they would be named as a person who would be, of course, guilty of hate speech.

That's one of the main concerns I have around the issue. You can comment on that, but I want to leave the questioning to my colleague, Mr. Hiebert.

[A. Borovoy]

Perhaps what I can do is work my response into my reply to Mr. Hiebert, in the interests of economy of time.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Thank you very much, Mr. Borovoy, for that, and for agreeing to be here today.

The Canadian Human Rights Commission, in its special report to Parliament last week, suggested that there is a “right to freedom from hate”. In your opinion, is there a right to freedom from hate, or is it the case that freedom of expression in a society sometimes means that people will be offended?

[A. Borovoy]

Of course you can't have viable free speech unless people are likely to be offended. It simply doesn't otherwise exist. But as far as the more, if I may say, metaphysical question you're asking, is there a right to freedom from hatred, that really depends on one's ultimate philosophy, and I don't know how philosophical you want me to get.

As far as I'm concerned, the rights we have are creations of the law. Apart from that, I don't understand what we're talking about. So if you create a freedom from X, then you have that right. If you don't, you don't have that right. I don't see these things existing in a state of nature. So if the questions you're asking me are at that level, I beg off, because that's not my area.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

In brief, in Canadian law, is there a right to freedom from hate?

[A. Borovoy]

I'm sorry...?

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

I said, in brief, in Canadian law, is there a right to freedom from hate?

[A. Borovoy]

Yes, of course. The anti-hate section of the Criminal Code has created that right to freedom from hate.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

And is it your belief that that right should exist in Canadian law?

[A. Borovoy]

No, for all of the reasons I gave earlier. No, because it's too vague and will lead to unwarranted restrictions on legitimate speech.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Thank you.

In the same report from the commission, the chief commissioner herself recommended that there be an opportunity for court costs, legal costs, to be awarded to the defendant, to the person who's responding to the complaint, in cases where there is abuse. In my mind, it would seem that.... Well, in a real court of law, we know that court costs can be awarded not only for frivolous or vexatious lawsuits, but also in cases where a person was innocent and the judge felt it appropriate that the complainant bear the costs, whether or not it was abusive.

Would you agree that costs in these situations should be allowed to be awarded to those individuals who are in fact innocent, keeping in mind that complainants do not have the benefit of legal advice provided, as it is to the complainants themselves? The system is very skewed against the person who is trying to defend his reputation, and it would seem to me that having a regular process where a complainant has to keep in mind that he might have to pay the court costs of the person they're complaining against would be a good deterrent against frivolous or vexatious complaints.

[A. Borovoy]

It would probably also be a very effective deterrent against using the human rights legislation at all, and I think that is just the problem with it. To say that there might be some remedy for costs isn't to say that the costs ought to follow the event, as is so often the case in court, and doesn't say that the complainant should necessarily be the party who is bearing them. I think these cases are much more complex than that.

I don't know whether you intended this, Mr. Hiebert, and if you didn't, just stop me, but when you talked about a “real court”, I became a bit uneasy. That is because real justice is dispensed by many different tribunals in our society, and there's no magic in wearing the legal kimona or lack of it in wearing ordinary business clothes.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

The reference I was making was to the fact that in the regular judicial system, there are different rules for evidence. There are different rules for handling these kinds of complaints, which don't, to my knowledge, apply under the current human rights tribunal. That's the differentiation I'm trying to make.

Last of all, and I think this may be my last question, you gave an invitation to ask more about other legal sanctions.

[A. Borovoy]

It was “other sanctions”.

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Other sanctions, not legal sanctions.

There's the fallacy of legal sanctions versus nothing. You suggested that there are other sanctions that can take place. You gave us an example in Keegstra. Can you give us other examples that would inform our committee as to how these complaints could be dealt with without the law in place?