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

[The Chair, Conservative, Scott Reid]

Thank you very much, Mr. Marston.

We are turning now to Mr. Hiebert.

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

Thank you, Mr. Chair.

Mr. Langtry, I appreciate your being here to give us your insights into the strengths and weaknesses of our Canadian Human Rights Commission system. Given the shortness of today's witness time, I would ask that you be willing to provide answers in writing to questions that we submit to you after this proceeding. Would you be okay with that?

[David Langtry]

Yes.

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

Great. I also have more questions than I have time for, so I really urge you to keep your answers as brief as possible. Thank you.

I note that in recent years the commission and the tribunal have conducted secret hearings to withhold evidence from defendants, to conceal the names of accusers, and to even exclude a defendant from portions of his own hearing, among other things.

I am a lawyer, and as I'm sure you would probably know, such practices do not occur in regular courts. If they did, they would bring the administration of justice into disrepute. So my first question is this. Who approves these kinds of legal tactics? Secondly, does either the commission or the tribunal have any sort of a manual of legal procedure that must be used during these hearings, or do they actually just make it up as they go along?

[David Langtry]

Thank you for the question. I appreciate the opportunity, albeit briefly, to describe our processes.

As you well know, of course, we are an administrative tribunal, and as such are subject to the rules of procedural fairness. All of our decisions are subject to review on judicial review.

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

Do you have a written document of legal procedure?

[David Langtry]

We have operating procedures that we follow, certainly, which are more in terms of the time periods within which complaints and responses must be filed and so on.

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

Anything like that would be appreciated.

Who approves the legal tactics that you use?

[David Langtry]

The legal tactics, if you will, are conducted in the same way before the tribunal in virtually every case. When we would make any kind of special request, we have to establish that before the tribunal. As you know, there are no hearings at the commission.

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

So a lawyer at the tribunal will make a decision as to whether to have a so-called secret hearing on some of these issues. It's not directed by yourself or anybody in authority.

[David Langtry]

On one occasion when an application was made before the Canadian Human Rights Tribunal to permit one of the witnesses to give evidence, our lawyer had to state the case as to why a great exception would be made to the usual. The foundation of that was based on concerns of potential security or safety. But it's up to the tribunal then whether or not to accede to a request. That was made in one instance, and I'm only aware of one instance.

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

Moving on, it has not escaped the notice of parliamentarians that some commission investigators have broken the law. I'm referring here to the posting of large amounts of hate speech material on the Internet by your investigators, and the theft of Internet service during a recent investigation. I also note that the commission has hired some questionable people. One was a former police officer who was kicked off the force because of corruption.

An internal governance audit in 2003 gave the CHRC a failing grade for ethics. It was found not to have had an ethics code or manual in 2003. Since that time, has the CHRC adopted an ethics code? If so, would it apply to the screening of potential hirees? Would it have prevented the hiring of a corrupt individual?

[David Langtry]

Perhaps I might be permitted to respond to the preamble before the question.

The fact of the matter is that some of the information that has been in the media and some of the descriptions of what we have done we feel are untrue. As part of our special report, we have detailed what our process is. For example, the allegation of the theft of the Internet service was untrue. The RCMP investigation and the Privacy Commissioner investigation both came to the determination that there was either no evidence or insufficient evidence to proceed further.

In terms of our code of conduct and ethics and the like, we are subject to, of course, all the Government of Canada codes of ethics, codes of conduct, all of the legislation pertaining to all of our employees.

We do not post hate messages. I can tell you that the commission would not condone any of our employees doing so.

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

Thank you.

Your website tells us that 2% of complaints each year are section 13 hate speech complaints. This indicates that so-called hate speech complaints are a relatively minor portion of what the commission does. What's even more interesting is that it's the same individual responsible for virtually every section 13 complaint that has been sent forward to the tribunal in the last eight years. I'm sure you know Richard Warman. Since 2001 there have been 14 complaints that resulted in a decision from the tribunal. Of those 14 complaints, 12 have been brought by Richard Warman. Essentially, without Mr. Warman it would appear that the law would not really be used that much at all.

Is it true that Richard Warman has received over $50,000 in awards through the tribunal process over the years? Is it also true that the commission has given him thousands of dollars more in expenses, as a so-called witness to his own complaints?

[David Langtry]

I can honestly say I'm not aware of what awards Richard Warman has received. As you know, we're not the tribunal. I do not know. I do not have a number. We can certainly look into that.

I certainly have no knowledge of any amounts the commission has paid to Richard Warman. I'm not aware of that. I can certainly seek that information and provide it to you.

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

I'd appreciate that. Thank you very much.

It certainly would be suspicious to have an individual who was a former employee being paid to be a witness at his own complaints, and then receiving such awards.

In your recent memo to Parliament last week, you claimed--as you did earlier today--that there is no hierarchy of rights, only a matrix of rights in which all rights are equally important. But our Charter of Rights and our Bill of Rights both list freedom of expression as a fundamental right, one that takes precedence over other values in society. Why does the CHRC not believe that freedom of expression is a fundamental right?

As a follow-up question, in the report you also indicate that freedom from hate is a priority that's given equality with freedom of speech. This concept of freedom from hate is in the title of the document. Could you tell me where in the charter or where in legal context in Canadian law this freedom from hate exists, or where it was first described or invented?

Those are my two questions.

[David Langtry]

I can't give you the origin of its existence, but certainly obviously from our perspective it came from Parliament in terms of our mandate to deal with hate on the Internet. Section 13 is a creature of statute, as you know, and it came from the mandate of Parliament.

In terms of the balancing and the limit, that was, as you know as well, considered head-on in light of the charter by the Supreme Court of Canada in the Taylor case in 1990. The decision of the Supreme Court at that time--they released both the Taylor and the Keegstra decisions on the same day--upheld the constitutionality of both section 13 of the Canadian Human Rights Act and sections 318 and 319 of the Criminal Code of Canada. So it is based on that.

And then again, as I had referenced, the 2001 amendment to our act, again by Parliament, as part of the Anti-terrorism Act expressly states that it does cover hate on the Internet, which the tribunal had already determined was the case.

So we take the mandate from Parliament, and we take the balancing, if you will, and the restriction on freedom of expression from the court cases. These are not decisions that are taken by the commission. We are subject to Parliament and the mandate that you, as parliamentarians, give to us or take away.

[The Chair, Conservative, Scott Reid]

That completes the questions that members can ask.

I don't normally do this, but I am just going to ask one question very briefly.

Mr. Sweet.

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

I just want to say that this is a very important issue, and one we've had very spirited debate about. I am very glad that Mr. Langtry already responded to my colleague Mr. Hiebert and said that he would submit written answers to questions. But we gavelled in the meeting late, so we've had 39 minutes in this meeting. The parliamentary tradition is that everybody gets an opportunity to question. I'm not certain if Mr. Rae feels this way, but I know that was the case when we met as chairs of all the committees earlier this year, and I would hope that in future when we schedule, we schedule enough time, particularly when it's an important issue like this, so that everybody gets an opportunity to raise their concerns with the witnesses.

[The Chair, Conservative, Scott Reid]

That's a good point. I was about to propose a question of my own. Perhaps we can invite the witnesses back at a later date, if they're willing to come back, to ask further questions.

I did have one follow-up that I just wanted very briefly to put in here on my own. This is to Mr. Langtry.

Did I understand from your last comment that essentially you look at only the precedents that come from the courts, as opposed to looking at the previous decisions of the tribunal? Do you distinguish that way?

[David Langtry]

Oh, certainly. We're bound by the decisions of the tribunal, absolutely. The courts obviously inform us greatly, but the tribunal decisions are the ones we follow when we refer a case on. It might be on an issue of duty to accommodate, for example. The tribunal will make a decision, and then those decisions of the tribunal and the superior courts--the Federal Court and the Supreme Court of Canada--are what we follow in our investigations and our consideration of the case. Provincial court decisions are not as binding on us.

[The Chair, Conservative, Scott Reid]

Right. Thank you very much.

We have to suspend momentarily while we bring in our next witness. We do appreciate your coming here. Thank you.

[David Langtry]

Thanks for the opportunity.

[The Chair, Conservative, Scott Reid]

We're back in session.

Our next witness is Alan Borovoy, general counsel for the Canadian Civil Liberties Association.

Mr. Borovoy, we are very glad indeed to have you here as a witness. We apologize for the fact that we won't give people as much time to ask questions as you and they deserve. At any rate, the floor is yours.

[A. Borovoy, General Counsel, Canadian Civil Liberties Association]

Thank you very much, Mr. Chairman. The problem is exacerbated in my case because I tend to speak slowly.

I think that in view of the polemics that have preceded these hearings, it would be appropriate for me to begin by indicating areas of agreement that my organization has with the defenders of section 13 of the Canadian Human Rights Act. I can state these agreements in three points.

First, we agree that freedom of speech is not and cannot be absolute. Second, as far as a hierarchy of freedoms is concerned, there is no necessary priority that one freedom has over another in the abstract. The priorities are intelligently worked out in concrete situations, not as a matter of abstract principle. Third, we agree that the bulk of our human rights legislation ought to remain and that the agencies created to enforce it should be encouraged to continue doing so, because most of it is very helpful and very important.

Those are the areas of agreement. I turn now to the areas of disagreement.

While freedom of speech may not be absolute, it is nevertheless the lifeblood of the democratic system. It's the vehicle that enables any of us to mobilize, or attempt to mobilize, public support for the redress of our various grievances. My favourite philosopher once described it as a strategic freedom, a freedom on which other freedoms depend.

There are basically two problems with the anti-hate provisions of the human rights legislation. The first is that it's too vague, and the second is that it's too wide.

When it talks about exposing people to hatred or contempt, I submit that with all the definitions in the world, the problem is that it still remains vague. We know that freedom of speech is often most important when it expresses strong disagreement, but where does strong disagreement leave off and hatred begin? If, as Professor Moon recommended, they had talked about using violence as the focus, there probably wouldn't be the difficulty that there is, but hatred is a necessarily vague term.

Then, of course, we have the breadth, the width. It targets statements “likely to expose” people on various grounds, various consituencies, to hatred or contempt. It says “likely to expose”. There's no requirement that there be an intent to foment hatred, and there's no defence for truth or reasonable belief in the truth.

I want to refer to a recent controversy, because I think there has been a certain amount of facile discussion about it. I'm talking about the complaint that had been filed against Maclean's magazine over the article written by Mark Steyn. It has been said that, “Oh, well, that didn't rise or sink to the level of hatred”, as though it was perfectly obvious that it didn't. I submit that it's anything but obvious that Mr. Steyn's article did not rise or sink to the level of hatred.

I'm going to take one sentence from his piece. He said: “Of course not all Muslims are terrorists--though enough are hot for jihad to provide an impressive support network...”. What does that statement effectively say? That a significant number of Muslims “support”--support what: terrorism, including the kidnapping, torture, and beheading of innocent people? What worse can you say about people these days than that they support activity like that? I think it's anything but clear that a subsequent panel from the Human Rights Commission, or indeed the tribunal if they ever get to deal with it, is going to reach the same conclusion as the last one did.

We did a little research in our office about recent controversial issues, and I just want to read you a couple of extracts; they're quite short. An article written in The New Republic magazine, a respectable American publication, on the conflict in Kosovo said:

The conventional thinking...is that we have no quarrel with the Serbian people. It's their leader, Slobodan Milosevic, and his henchmen who manipulated them into waging so many brutal wars. ... But what if it isn't true? What if the Serbs...actually support ethnic cleansing...? In that case, we do have a quarrel with the Serbian people. ... I myself used to believe that ordinary Serbs have been deceived and bullied into accepting atrocities done in their name. But now, after five years...trying in vain to elicit expressions of remorse from the hundreds of Serbs I have met, I am convinced that the latter assessment is the accurate one. Whatever else we do in Kosovo, we must face the fact that, for all intents and purposes, many ordinary Serbs are--to paraphrase Daniel Jonah Goldhagen--Milosevic's willing executioners.

Is that not likely to expose all kinds of Serbian people to hatred or contempt?

We have Daniel Goldhagen's book, and here's what he says about the state of mind of the German people at the time of the Holocaust:

...the perpetrators, “ordinary Germans”, were animated by antisemitism, by a particular type of antisemitism that led them to conclude that the Jews ought to die. ... Simply put, the perpetrators, having consulted their own convictions...and having judged the mass annihilation of Jews to be right, did not want to say “no”.

Is that not likely to expose a whole generation of Germans to hatred or contempt?

I know that Daniel Goldhagen is a controversial historian, but no one questions his historical credentials. There has been literature that has attempted to document the collaboration, the cooperation the Nazis received from the indigenous populations in some of the countries they occupied. This leads to a very interesting question: To what extent could section 13 make it an offence to tell the truth about the Holocaust? This is a problem we see with this legislation.

As a result, the Canadian Civil Liberties Association has taken the position that Richard Moon was very much on the right track when he suggested the focus should not be on expressions of hatred, but on the prevention of violence. We may have some quarrels with some of the details, but the direction of the Moon report, in our view, is the correct one.

All of which, Mr. Chair, is, as always, respectfully submitted.