Evidence of meeting #26 for Subcommittee on International Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was tribunal.
A recording is available from Parliament.
1:30 p.m.
Conservative
The Chair Conservative Scott Reid
Thank you very much, Mr. Borovoy.
This time around I'm assuming we'll begin with Mr. Rae. Please go ahead.
1:30 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
Thank you, Mr. Borovoy. It's nice to see you again, if I may say so. Our association goes back many years, and I'm very delighted to be with you in the room again.
If I could just ask you a question, you stated at the beginning the three principles. You said freedom of speech can't be an absolute. Could you tell us what you think the limits on freedom of speech are? And what are the instruments of public policy that should be used to enforce those limits?
1:30 p.m.
General Counsel, Canadian Civil Liberties Association
I'm not able to tell you in the abstract because that engages my second principle. In the abstract I can't tell you what the limits of free speech are. I could give you a few examples of limits on free speech.
You are aware, of course, of Oliver Wendell Holmes' famous injunction that there's no freedom to falsely shout “fire” in a crowded theatre. That's an example. There are numbers of others.
1:30 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
Correct me if I'm wrong, but I believe you didn't answer the second half of my question. Is that to say you advocate, as I take it, that section 13 should simply be removed from the Human Rights Act?
1:30 p.m.
General Counsel, Canadian Civil Liberties Association
I think the best way is to remove it and leave the Human Rights Commission in the position of dealing with traditional issues of discrimination, for which it was originally created.
1:30 p.m.
General Counsel, Canadian Civil Liberties Association
On the Criminal Code, as far as we're concerned, if the key section were narrowed to deal with the prevention of violence, particularly in situations of imminent peril, it would be much closer to the position that we would advocate.
1:30 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
So the so-called Cohen report of 1970, with which you're very familiar because the debates in Parliament around that time were also very much informed by your views and by the debate that ensued at that point.... So you would remove section 18, which would prohibit the advocacy or the promotion of genocide?
1:30 p.m.
General Counsel, Canadian Civil Liberties Association
No. Our concern would be section 319, dealing with hatred. That's the key problem.
1:30 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
With respect to the incitement of hatred and the wilful promotion of hatred, you would do what? You would take away that section? You would change that section?
1:30 p.m.
General Counsel, Canadian Civil Liberties Association
I would replace it or amend it with something that was focused on the incitement of violence in situations of imminent peril.
1:30 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
So you would say that it would only be anybody who is communicating statements in a public place who incited hatred against an identifiable group, as it says here, “where such incitement is likely to lead to a breach of the peace”. That's the current provision.
1:30 p.m.
General Counsel, Canadian Civil Liberties Association
No. The difficulty with that is that is so wide it could include situations where the person is provoking an attack upon himself. You could have a situation that we generally refer to as the “heckler's veto”. You don't want to penalize the speaker because of the violence of his audience. You may penalize a speaker if the speaker is urging the violence by his supporters against others, but not if what he says is so unpopular that he's attracting the violence to himself.
1:35 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
What about the argument, Mr. Borovoy, that would say that if you simply leave it to the Criminal Code, which you'll have to admit is a remedy that's been used very infrequently, you are in effect saying that the less drastic powers of the Human Rights Tribunal, which doesn't have powers to imprison people or take away their freedom of movement by incarcerating them, but simply has the ability to fine people, and obviously we hope will discourage conduct, but it's never been challenged on the grounds that it's criminal-type legislation.... What about the argument that in fact what you're doing thereby is perhaps forcing the authorities to use the Criminal Code more frequently than they otherwise would, instead of using an administrative tribunal, which you'd use less frequently?
I can't claim to be as articulate as you, Alan, but help me out here. You know what I'm trying to say: that you're going to end up using more drastic punishment, rather than less drastic punishment, by virtue of—
1:35 p.m.
General Counsel, Canadian Civil Liberties Association
In addition to everything else, you're attributing clairvoyance to me.
1:35 p.m.
Some hon. members
Oh, oh!
1:35 p.m.
General Counsel, Canadian Civil Liberties Association
I appreciate where you're going with this. I would suggest to you that it may be overly influenced by a key fallacy, and that is that we either use legal sanctions or we do nothing when there are hate pronouncements. I happen to be of the view that there are many things that citizens can do in a democracy to curtail, reduce the influence of, or reduce the number of occurrences of hate speech that don't necessarily require legal sanction.
1:35 p.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
But you would agree with me that from the point of view of taking means and ways—and certainly there are lots, and you and I and others have participated in several—in which we attempt to denounce and demonstrate and pronounce against and show our rejection of any expression of hatred in a number of circumstances that have neither invoked the actions of the Human Rights Tribunal nor invoked the responses of the Criminal Code.... So you're obviously right in that regard. But it seems to me that the risk we end up running, in what you're doing by advocating simply eliminating section 13 rather than revising and amending it, which is the alternative path that's been set out, I think, by a number of people—including an alternative presented by Professor Moon in a very even-handed way, as he looks at presenting his options—is that we lose the benefit of having, as we all agree, a more tightly focused section 13, but one that nevertheless still gives certain powers to the Human Rights Tribunal to do its job. That's where I think the difference of opinion will be on the committee and where I think it will be in Parliament.
If we lose that, we end up with an open field, effectively, and the Criminal Code in place, and the Criminal Code is a very tough route to follow in these circumstances. I think the history of the trials and the cases with regard to the Criminal Code will show that I'm right in that regard.
1:35 p.m.
General Counsel, Canadian Civil Liberties Association
In that regard, while there have been numbers of situations that may not have led to prosecutions, or that didn't lead to convictions but did lead to some pretty unpleasant harassment of legitimate speech as a result of the anti-hate section of the Criminal Code as well, there are other provisions even there that are less drastic than the normal prosecutorial instrument is. Richard Moon himself recommended that there can be certain action taken against certain websites that may have material on them that runs afoul of the law. Prosecution wouldn't be a necessary remedy there, but it would be helpful in removing some of the material from the marketplace, assuming that the material contravenes what I say ought to be the barrier.
1:40 p.m.
Conservative
The Chair Conservative Scott Reid
Thank you.
That ends that round of questions.
The floor is yours, Mr. Dorion.
1:40 p.m.
Bloc
Jean Dorion Bloc Longueuil—Pierre-Boucher, QC
I am going to ask a question on a matter that is really quite close to the one you are talking about. I am talking about negationism. People who, for example...
1:40 p.m.
An hon. member
Editor's note: Inaudible.
1:40 p.m.
General Counsel, Canadian Civil Liberties Association
I couldn't quite hear. You referred to the issue of something, and I couldn't hear what.