Subcommittee on International Human Rights Committee on June 18th, 2009

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

Yes, certain things have been shown to be accurate and true. We can support different points of view, but when the purpose of that view is to promote hatred of a particular group or to make accusations against them, that is not acceptable, especially when it involves people who have been victimized and who are still alive.

Perhaps in a hundred years, we can be more lenient. But for now, it is not acceptable to hurt people to that extent. That is my opinion. What do you think?

[Prof. Robert Martin]

Might I reply that there is a vast difference between promoting hatred against people and offending or hurting the feelings of people?

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

Can you elaborate?

[Prof. Robert Martin]

The Criminal Code of Canada, in section 319, creates the offence of wilfully promoting hatred. And the courts, in hearing prosecutions under this section, have demanded a very high standard of proof from the crown. The crown is obliged to lead evidence that demonstrates that the accused actually intended and did attempt to promote hatred, which the courts have defined as abhorrence and detestation against an identifiable group of people. There is a vast gap between that and offending someone or hurting someone's feelings.

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

Say, for instance, I had been beaten, raped and tortured by people. Say I took them to court and they were found guilty. If afterwards, those same individuals or their friends spread the idea that I made the whole thing up, that it never happened, I would feel like the victim of a huge injustice.

I think it is normal for Holocaust victims to react that way. Do you not agree?

[Prof. Robert Martin]

I understand the direction of your sentiments, but life in a democracy requires robust citizens.

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

Thank you, Mr. Chair.

[The Chair, Conservative, Scott Reid]

That uses up the time that's available.

Mr. Marston, please.

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

Well, sir, I approach witnesses very respectfully in this place, but I must say I profoundly disagree with your opinions.

What separates Anne Cools and the attack on her from the attack on the homosexuals with those stick cartoons? Maybe it's in the degree of how it was implemented....

If you stop and look at the feelings, as you describe them, of Jewish people who stood before those signs that said to them that they weren't welcome because they were lesser than the rest of humanity--because that's what those signs were intended to do--and you talk about people's feelings getting hurt, I have Jewish friends who were not of the Holocaust generation, yet they suffer every day as a result of the hate from that time.

How can you can sit and call a group of people “thought police” when they are doing one of the most difficult jobs that we have in our country in trying to sort out the difference between what are serious incidents and what are not serious. And at times, as with any group of human beings, I'm sure they're going to go to the fallacy side of it.

I'll sit here today and defend your right to hold your opinions and certainly your right to express them, and express them publicly, but to the point where that begins to humiliate or shame other people.... I'm not suggesting, sir, that you've done so today. I don't mean it in that context. But when you're looking at people like Anne Cools who are attacked, that has to be stopped.

I really don't have a question for you, sir, other than to say that I profoundly disagree with your view.

[Prof. Robert Martin]

Well, I'm glad that you do.

Let me repeat the point I made in replying to the first questioner. We are in a very dangerous situation where anyone in this country today who argues in favour of free expression is thereby tarred as a racist, anti-Semite, homophobe, etc. Surely in this confine we should be able to understand arguments of principle. Free expression is a profound principle. It is the basis for our democracy. It is a very dangerous practice to tar persons who argue in favour of free expression with these sorts of labels.

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

Certainly, in the case of my remarks just now, there was no labelling done, sir.

Number one, when you found a society, when you found a country and a constitution--as we saw in Canada with the evolution of our Charter of Rights and Freedoms--and other living documents, you do in fact move from the point of time when you found your country to the point of time when, through the evolutionary process of the government and of the courts and of commissions, you enhance the values of what you've put into those documents.

Over a period of time, part of what you describe as the thought police was put into our system to rein in hate. There is a line someplace--I don't proclaim myself as the person who's going to decide where that line is--where the freedom of expression ends. You have to have someone there to at least cause the discussion of where that line should be.

Thank you, Mr. Chair.

[The Chair, Conservative, Scott Reid]

Professor Martin, do you have a response?

[Prof. Robert Martin]

That comment brings us to what I think is, with all respect, sir, the most dangerous and insidious issue in this area: people constantly talking of balance. That balance is usually tipped very much in favour of the thought police.

The chair of the Canadian Human Rights Commission, Jennifer Lynch, last Friday published an article in The Globe and Mail. In it she argued the glories of the Canadian Human Rights Commission and the need for balancing free expression. At the end of the article, she suggested that, really, Canadians cannot be trusted to exercise free expression, because if they did, if we let Canadians have free expression, then, God knows, lots of people might get their feelings hurt; so we can't allow free expression.

At the same time that this statement was made, the CRTC, the Canadian Radio-television and Telecommunications Commission, released a discussion paper about the Internet. One of the members of the commission argued eloquently and very forcefully that the state should not regulate the Internet because of the great risk of imposing orthodoxy.

Let me suggest an aphorism. Now, I must confess that I'm not a great fan of Pierre Trudeau, but we all know his most famous aphorism, that the state has no business in the bedrooms of the nation. My aphorism is that the state has no business in the computers of the nation.

[The Chair, Conservative, Scott Reid]

We are out of time on that round of questions.

It's now the turn of a Conservative member. Mr. Hiebert.

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

Thank you, Mr. Chair.

Mr. Martin, you've made, I think it's fair to say, some fairly strong statements today that have obviously caused some uncomfortableness among some of the members, I sense. It's in relation to these comments that I think the questions relating to freedom of expression are what we're trying to struggle with.

I note that you gave some examples that would be, I think everybody would agree, quite offensive. In the example of Senator Cools, I have to ask: Do you believe she should have access to some form of legislation or prosecutorial avenue to prevent people like Mr. Warman from making the comments he did about her on the Internet? Should there be freedom of expression to that degree, even if it tremendously offends members of our committee--or even Senator Cools?

[Prof. Robert Martin]

I know Senator Cools well and respect her profoundly. One of the reasons I admire Senator Cools so much is that she is a remarkably tough human being. I'm sure her response to this whole matter would be that she would regard it as a serious compromise to descend to the level of Richard Warman. I don't wish to speak for her, but I have no doubt that she does not want to soil herself by getting into a tussle with a vermin like this.

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

You're basically stating that even where tremendously offensive remarks are made, like the ones that have been made about Senator Cools, it's your belief that human rights commissions should not be used to force individuals who make such comments to retract or pay compensation or face the consequences. Is it simply the price we pay in a democracy for freedom of expression?

[Prof. Robert Martin]

I don't wish to sound flippant, but we must pay a certain price for being grown-ups. To use the unpleasant, popular phrase, grown-ups don't spend 24 hours whining and complaining and moaning and being victims. Grown-ups in a democracy, in my view, should be tough and robust.

I do have a tendency to speak my mind firmly and directly, which I think, out of respect for the Parliament of Canada, it is my obligation to do.

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

What would you do to improve the current system?

[Prof. Robert Martin]

I would have a public hanging of Richard Warman.

While I think there's a lot to be said for abolishing human rights commissions or taking away their thought police role, there is a legitimate place for the anti-discrimination functions that date back to the Ontario Human Rights Code of 1960. The thought police role is an unnecessary adjunct.

The Criminal Code does contain an offense of wilfully promoting hatred. Let me note, for the benefit of my friend down at the end of this table, that in 2002 the Criminal Code was amended by changing section 318, so that the wilfully promoting hatred offence has been broadened. It originally applied to promoting hatred on the basis of race, religion, or national origin. The section now refers to promoting hatred on the basis of race, religion, national origin, or sexual orientation

The Criminal Code contains a prohibition against promoting hatred, which is certainly not a form of speech that deserves any protection in a democracy. The Criminal Code can do the job. It doesn't need the assistance of human rights commissions.

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

As an aside, I noticed in your biography it states that you were a candidate for the federal New Democratic Party in 1979 and 1980. Is that correct?

[Prof. Robert Martin]

That's correct.

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

What are the recommendations that have been made by the commissioner herself? Is that cost allowed to be awarded where there is abuse? I'm wondering if you have any thoughts on whether court costs should be awarded to the successful defendant, the person who's succeeded in protecting their reputation, but at tremendous cost, usually as a result of hiring lawyers to defend them?

Do you think the allowance of awarding costs to the persons who have successfully defended themselves should extend beyond simply cases of abuse and perhaps to other cases where it was not necessarily frivolous, but it would provide a deterrent from those people who might bring frivolous cases?

[Prof. Robert Martin]

If we're going to maintain these things, it would be highly desirable to make them, as far as possible, follow the procedures of courts to guarantee, to the extent that it can be achieved, the procedural rights of all parties who appear before them.

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

What kind of a job do you think they're currently doing in terms of following procedural rights?