Justice Committee on Oct. 5th, 2009

[The Chair, Conservative, Ed Fast]

I call the meeting to order.

This is meeting number 36 of the Standing Committee on Justice and Human Rights. Today is Monday, October 5, 2009. Just as a note, today's meeting is being televised.

You have before you the agenda for today. We have two matters to deal with. During the first hour, we'll begin a review of the Canadian Human Rights Act, more particularly section 13. We also have two witnesses appearing on that matter. And just so you know, during the second hour we'll return to our review of Bill S-4, An Act to amend the Criminal Code (identity theft and related misconduct). We have one witness appearing on that bill.

Once again, I remind everyone in this room to please turn off their BlackBerrys or set them to vibrate. We want to make sure there are no disturbances during our meeting. If you are receiving a call, please take it outside of this room. Thank you for your cooperation in this regard.

Now to get back to the Canadian Human Rights Act, to help us with our review we have two witnesses as individuals, Mark Steyn and Ezra Levant. Welcome to both of you. You've probably been apprised of the process. Each of you has 10 minutes to present, and then we'll throw the floor open for questions by our committee members.

Mr. Levant, perhaps you could start. You have 10 minutes.

[Ezra Levant, As an Individual]

Thank you. I appreciate this invitation very much.

I appreciate the fact that this is a multi-partisan committee, and I believe that freedom of speech, the rule of law, and checks and balances in quasi-judicial tribunals are not the property of any one party or, indeed, any one ideology. They're for anyone who believes in debate and discussion. I believe that freedom of speech is a Canadian value.

I'd like to read some prepared remarks.

Last month, section 13 of the Canadian Human Rights Act, the censorship provision, was declared unconstitutional. Athanasios Hadjis, the vice-chair of the Canadian Human Rights Tribunal, ruled that section violated the charter. He said the Canadian Human Rights Commission had become a bully. He called it “aggressive and confrontational”. In March, Edward Lustig, another tribunal member, ruled that the commission's conduct was “disturbing and disappointing”. He said he would follow Mr. Hadjis' lead on the question of its constitutionality. Mr. Hadjis is the past president of a large multicultural organization in Montreal and he was appointed to the tribunal by Prime Minister Chrétien. Mr. Lustig was appointed by Prime Minister Harper.

So that's the state of affairs today. Conservative and Liberal members of the tribunal agree. The commission is out of control. The tribunal will not enforce this illegal law. They've concluded that the commission is abusing our human rights, like freedom of speech.

So how did things get off the rails? To understand what the commission does, we have to understand what it doesn't do. It doesn't help minorities. It doesn't help immigrants or gays. In fact, all but two of the commission's censorship prosecutions in the past decade have been launched by the same one individual, a privileged white male lawyer right here in Ottawa named Richard Warman. He was actually a commission employee and he started filing censorship complaints while he worked there, and his co-workers would investigate his complaints. Needless to say, he won them all and he was awarded tens of thousands of dollars tax-free. When Mr. Warman left the commission five years ago and went to work for the Department of National Defence, he continued to file complaints. Even though he no longer works for the commission, they still pay his expenses: travel, hotels, parking, meals, and even an honorarium. The commission doesn't pay anyone else in Canada to file complaints. Section 13 really is Richard Warman's personal law. Without him, there would be no prosecutions. In itself, that raises questions like conflict of interest and abuse of office and malicious prosecution.

But that's not why Mr. Hadjis or Mr. Lustig rejected section 13. As I mentioned, they called the commission “disturbing”, “disappointing”, “aggressive”, and “confrontational”. I'll give you examples of that conduct now. I think it will shock you.

I couldn't believe it myself at first, so I would be happy to provide documentary evidence for what I'm about to say, almost all of which comes from sworn testimony of commission staff themselves. Here goes: Mr. Warman does something I don't think Canadians expect a government employee to do. For nearly 10 years he's been a member of a neo-Nazi group called Stormfront and another neo-Nazi group called Vanguard and another called the Canadian Heritage Alliance. He actually fills out membership forms, then goes online to their websites and writes bigoted, hateful things, like gays are a “cancer” on society, or that white police should be loyal to “their race”, or that Jews like your colleague, Irwin Cotler, are “scum”.

Seriously, he did this as a commission employee. He wrote hundreds of bigoted messages like that. He convinced other commission staff to do the same thing. At least seven staff have membership privileges in Nazi organizations. Last year, commission investigator Dean Stacey admitted, under oath, that he was one of them. He fingered his two assistants and Sandy Kozak and Giacomo Vigna and their manager, John Chamberlin, too. They all have access to neo-Nazi membership accounts.

Several years ago, Mr. Warman, Mr. Vigna, and Mr. Stacey sat down at a commission computer together and logged into a neo-Nazi website using their membership. But to cover their tracks they hacked into a wireless Internet account of a private citizen named Nelly Hechme so they couldn't be traced back to the commission. Bell Canada's security officer testified to this fact, and the RCMP investigated this hacking for months. The status of the investigation is officially “unsolved”, but the commission remains the only suspect.

I could go on. I could mention the lack of a written ethics code: that Ms. Kozak of the commission was hired after she was drummed out of a police force for corruption; that the commission illegally borrows material from police evidence lockers without a search warrant; that Mr. Stacey boasts this kind of behaviour doesn't break any rules at the commission because there are no rules to break. And instead of cleaning up this filthy, bigoted mess, the chief of the commission appointed by the Conservatives, Jennifer Lynch, defends this conduct and attacks anyone who criticizes it.

Section 13 was thrown out not just because censorship is un-Canadian, illiberal, and a violation of our charter, it was thrown out because the commission itself has become a threat to our human rights and both the Liberal and Conservative tribunal members refuse to let that go on one minute longer. I hope this committee will be united in their revulsion to what I just reported. I can talk about this in the media or on my blog, and so can Mr. Steyn, but only the people in this room and this building can actually put a stop to it.

Thank you. I now look forward to your questions.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Levant.

We'll move on to Mr. Steyn. You have ten minutes to present.

[Mark Steyn, As an Individual]

I want to second what Ezra Levant has said. Something has gone badly wrong in the Canadian state's conception of human rights. Until last month section 13 had a 100% conviction rate. Even Saddam Hussein and Kim Jong-il understood that you don't want to make the racket look too obvious.

Under section 13, citizens are subject to lifetime speech bans--not in the Soviet Union, not in Saudi Arabia, but in Canada. Section 13 prosecutes not crimes but pre-crimes, crimes that have not yet taken place. The phrase “pre-crime”, by the way, comes from a dystopian science fiction story written by Philip K. Dick in 1956. Half a century later, in one of the oldest, most stable democratic societies on the planet, we're living it. Until Maclean's magazine and I intervened last year, the section 13 trial of Marc Lemire was due to be held in secret—secret trials, not in Beijing or Tehran, but here in Ottawa. It is not the job of either Maclean's magazine or me to demand that in this country trials cannot be held in secret. That is the job of you and your colleagues and this Parliament.

Section 13 is at odds with this country's entire legal inheritance, stretching back to Magna Carta. Back then, if you recall--in 1215--human rights meant that the king could be restrained by his subjects. Eight hundred years later, Canada's pseudo-human rights apparatchiks of the commission have entirely inverted that proposition, and human rights now means that the subjects get restrained by the crown in the cause of so-called collective rights that can be regulated only by the state.

I would like to cite an eminent scholar in the field:

...collective rights without individual ones end up in tyranny. Moreover, rights inflation--the tendency to define anything desirable as a right--ends up eroding the legitimacy of a defensible core of rights. ...the right to freedom of speech is not...a lapidary bourgeois luxury, but the precondition for having any other rights at all.

Those are the words of the leader of the Liberal Party of Canada, Michael Ignatieff, in his thoughtful book, Human Rights as Politics and Idolatry. I wholeheartedly agree with Mr. Ignatieff that freedom of speech is the bedrock through which all others are secured, and I reject the Human Rights Commission's assault on it.

Section 13 is deeply destructive. There are some 33 million people in Canada, yet as Ezra pointed out, one individual citizen has his name on every section 13 prosecution since 2002. I'm sure some of you are familiar with Matthew Hopkins, who in 1645 appointed himself England's witch-finder general and went around the country hunting down witches and turning them in for the price of one pound per witch. In 2002 Richard Warman appointed himself Canada's hate-finder general and went around the Internet hunting down so-called haters and turning them in for lucrative tax-free sums amounting to many thousands of dollars. Hate-finder Warman and his enablers at the commission abused the extremely narrow constitutional approval given to section 13 by the Supreme Court in the Taylor decision and instead turned it into a personal inquisition for himself and his pals.

Abolish section 13, and life in Canada would be affected not one jot, except that Mr. Warman, Dean Stacey, and the other rogue civil servants would have to write their anti-Semitic, homophobic, racist website ravings on their own dime.

Let me take the most recent example of a section 13 conviction. The sole charge on which Marc Lemire was found guilty a month ago was for a post that appeared at his website, written by somebody else. That piece was read by a grand total of just eight people in the whole of Canada, which works out to 0.8 of a Canadian per province, or if you include territories, 0.6153 of a Canadian. And almost all those 0.6153s of a Canadian going to this website and reading this piece were Richard Warman and his fellow dress-up Nazis at the Human Rights Commission, salivating at the prospect of having found another witch to provide more bounty.

In other words, no one in Canada saw this post. No one in Canada read it. Nothing could be less “likely to expose” anyone to hatred or contempt than an unread post at an unread website. Yet Canadian taxpayers paid for Jennifer Lynch and the Nazi fetishists at the commission to investigate this unread bit of nothing for six years.

In the course of securing this itsy-bitsy single conviction, these psychologically disturbed employees of the Human Rights Commission wrote and distributed far more hate speech of their own. As the recent rulings of Judge Lustig and Judge Hadjis confirm, there is no justification for what Richard Warman and the CHRC did.

This is the sad truth about this disgusting agency at the beginning of the 21st century. There would be less hate speech in Canada--less hate speech--if taxpayers did not have to pay CHRC employees to go around writing it and publishing it.

Sometimes institutions do things that are so atrocious they cannot be reformed. They can only have the relevant powers removed, as happened to the RCMP in intelligence matters, or be abolished outright, as happened to a Canadian regiment not so long ago. The Canadian Human Rights Commission should not be more insulated from accountability and responsibility for its actions than the Royal Canadian Mounted Police or the Canadian Forces.

I call on this Parliament to assert its oversight role and to compel a full inquiry into the commission, its investigators, their membership of Nazi websites, their conflicts of interest, their contamination of evidence, and their relationship with Richard Warman.

Section 13's underlying philosophy is incompatible with a free society. Its effect is entirely irrelevant to the queen's peace, and its use by agents of the Canadian Human Rights Commission has been corrupted and diseased beyond salvation. It is time for the people's representatives in the House of Commons to defend real human rights and end this grotesque spectacle.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll open the floor to questions.

The first questioner will be Mr. Murphy. You have seven minutes.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

Thank you, witnesses.

I'm going to give my questioning in memory of Gordon Fairweather, who was a great New Brunswick parliamentarian and the first head of the Canadian Human Rights Commission. He held his seat as a Tory.

I'm saying good things about a Conservative, so we're starting off very well.

Really, I thought today we would have a debate on the concerns about procedure, equality, and fairness versus substantive law--that is, usually something everybody can agree on as egregious, and an act that should be impugned. But I think you have raised mostly, in your 20 minutes, procedural matters, the far-reaching hand of the state, the inequality. Those are all very legitimate concerns, if proven.

I will tell you that it's probably somebody's job to disprove some of the things, Mr. Levant, that you might say, I think particularly with respect to the allegation of hijacking a person's identity, on page 38 of your book. I think if you said that about an individual you'd be sued for liable, probably successfully.

But that's not why we're here. I think we're here to discuss the broader issue of whether what is impugned is wrong, and whether, as Canadians, we believe what Justice Dickson said at the Supreme Court of Canada when he decided that section 13 was a valid constitutional part of our law.

I guess what I'd like to ask you is whether you at least agree that the Canadian Criminal Code provisions are being appropriately administered and whether there is in fact some curb on free speech. The fundamental question is whether you believe there are curbs on free speech when free speech gets into the realm of hate speech, extreme speech, speech that is meant to, in the words of the late Justice Dickson, reduce people so that no one finds “redeeming qualities” in them; and hatred is “a set of emotions and feelings which involve extreme ill will towards another person or group of persons”. As he said, “To say that one 'hates' another means in effect that one finds no redeeming qualities in the latter.”

The cases dealt with by the tribunal are issues about the “Jewish lobby”; and the words spoken were, “that lied to us about Hitler”. I won't go on. I don't think we need to hear the atrocious statements made. But they shocked the conscience of people, and they go beyond freedom of speech. They're covered, in some cases, by the Criminal Code.

Do you believe at least in the Criminal Code provisions on hate speech? And don't you think there are limits?

Finally, you know that the Criminal Code requires proof beyond a reasonable doubt, which is more difficult than on a balance of probabilities. You also know that the Criminal Code has punitive provisions involving jail, etc., whereas in administrative tribunals the sentences meted out are minor in terms of finances.

Let's not truck with the administrative procedural aspects. Let's get to the heart of it. The question is simple: are there limits on free speech in this country of Canada?

[Ezra Levant]

Of course there are limits to free speech. For example, the laws against fraud are a limit to free speech, the laws against forgery, and the laws about copyright. We accept these. Uttering a death threat has been in our Criminal Code for centuries.

In all of these instances, though, speech is incidental. The substance of what is legislated is an actual crime, a harm, or a violence. But having hate speech in our Human Rights Act turns the ideas and the words themselves into a crime.

You say the punishments are light. I put it to you that a lifetime publication ban, $40,000 worth of penalties and fines, and no legal aid are not light, especially for the people who are caught in that system, with no legal aid allowed.

But you outline some of the differences between the Criminal Code and the Human Rights Act. Under the Criminal Code, if you're too poor to afford a lawyer, you will be given one, whereas more than 90% of the people before the Human Rights Commission are too poor to have a lawyer. In the Criminal Code, there is “beyond a reasonable doubt”; not so in the Human Rights Commission. In the Criminal Code, truth is a defence; not so in the Human Rights Commission. In the Criminal Code, honest belief is a defence; not so in the Human Rights Commission. In the Criminal Code, we have procedural checks and balances; the police have to live up to an ethics code, there's an internal affairs organization and you can't entrap people. But that's not so in the Human Rights Commission. These procedural differences, sir, are not a trifle; they are the petri dish in which these terrible things have happened.

Let me close by remarking on the Dickson decision you referred to. In 1990 the Supreme Court, in a narrow four-three ruling, said this law was acceptable. But here's the difference between then and now: back then the law, according to Dickson, would be targeted only at “evil” ideas. Now they're targeted at publishers who publish cartoons or at columnists who have something to say about radical Islam. So it has strayed into politics, which is what Chief Justice Dickson said would never happen—but it has.

Point two, the huge punitive fines, the aggressive behaviour, the entrapment were never imagined by Justice Dickson back then.

And number three, Canada has moved more towards freedom of speech. The dissenting opinion in 1990 was written by Justice Beverley McLachlin. She is now our Chief Justice.

I put it to you that even Justice Dickson would now abolish this law because it would offend him, let alone a 2009 court that is embracing freedom of speech.

Thank you for letting me answer that at some length.

[Mark Steyn]

I would just add to that last point that Justice Dickson, in that decision, had a very narrow definition of section 13. There is nothing in there to indicate that he thought Maclean's magazine, the oldest and best selling magazine in Canada, would come under section 13 for choosing to publish particular articles.

I would also add that the words you quoted—and I assume you have worse ones there—which I think were, “the Jewish lobby” and then something about Hitler, are offensive. Because I was a supporter of President Bush's foreign policy, I woke up every morning for years being accused of being part of the Jewish lobby that is “controlling” American foreign policy. Do I think I should have the right to make it illegal for someone to accuse me of being part of the Jewish lobby? No. Do I think it should be illegal to champion repellant ideas? No. Repellant ideas wither in sunlight, and you cannot have true sunlight if you accept the right of the state to regulate public discourse.

Ian Fine, the senior counsel of the CHRC, has declared that the commission is committed to the abolition of hatred—not hate crimes, not hate speech, but hate. Hate is a human emotion; it beats, to one degree or another, in every breast. It is part of what it means to be human. I sometimes get the impression from her public remarks that deep down, even Jennifer Lynch, head of the commission, harbours a teensy-weensy little bit of hatred for Ezra and me.

There is absolutely no alternative to that. To hate is to be free, and when the alternative is a coercive government bureaucracy regulating what you can say, then as Michael Ignatieff would be the first to point out, you are no longer free. I am with Mr. Ignatieff on that.

[The Chair, Conservative, Ed Fast]

Thank you.

We're going to move on to Monsieur Ménard. You have seven minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you, Mr. Chair.

To make sure I understand what you have just asked us, I need you to explain a few things. At the beginning of your presentation, you talked about a ruling: two people had declared section 13 unconstitutional. Were those two people members of a tribunal?

[Ezra Levant]

Yes, sir.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Which tribunal?

[Ezra Levant]

The Canadian Human Rights Tribunal is the federal tribunal, a quasi-judicial tribunal, that hears the cases brought to it by the Canadian Human Rights Commission.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

That's what I thought. But I had always believed that, since the charter, only a judge could declare a provision of law unconstitutional, not an administrative tribunal. My wife was on an administrative tribunal, so I know a little bit about it.

[Ezra Levant]

That's an excellent distinction you make, sir. These two--

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

It was not me.

[Ezra Levant]

No, but you're burrowing down into the important details here.

These two tribunal members have declared it. Now, they have not struck anything down, for they lack the power you refer to, but they both have essentially said they are so offended by this law that they shall not give it any credence. And so both Mr. Lustig and Mr. Hadjis—and since he's the vice-chair, I think the rest will follow him—will simply refuse to implement this law, and they're throwing it back to you, sir. They're throwing it back to you because it's so illegal. They can't make the changes, but maybe you can.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I was not wrong in thinking that they did not have the authority to declare a provision unconstitutional. I was going to ask you what the Attorney General's position was on this. After all, when you want to have a provision of law declared unconstitutional, you have to give notice to the Attorney General. And in this case, no notice was given to the Attorney General.

I would like to know what you want. Sometimes, I get the sense that you want section 13 abolished, but other times, you seem to be saying that the problem is not really section 13 but the fact that people at the commission acted in a manner you consider scandalous, illegal and so forth.

What other reasons do you have for abolishing section 13? Are you claiming that, if those people had acted in good faith and if the employees of the commission had not made all the mistakes you mentioned, section 13 should stay in the act?

[Mark Steyn]

No, not at all. As I indicated, section 13 is appallingly written. The key word in there is “likely”, “likely to expose” someone to hatred or contempt. That is not a legal concept as it's currently understood by the human rights enforcers. They have a big list of what they call jurisprudence on their website, in which they essentially now define “likely to expose” as entirely unlikely to expose. The narrow approval Justice Dickson gave to section 13 has been completely transformed. So that is why we need not just an investigation into the conduct of the commission but the abolition of section 13, because it is so poorly drafted that ambitious and opportunistic employees of the commission have been able to drive a coach and horses through the Supreme Court's interpretation of it.

[Ezra Levant]

May I supplement for 30 seconds, sir?

Mr. Murphy also suggested that the Criminal Code prohibitions against hate propaganda are enough. And though a pure libertarian would be opposed to even that, I think a very practical, doable thing for this committee and for Parliament would be to repeal section 13 of the Human Rights Act altogether, to leave any hate speech prosecutions to the Criminal Code, with its proper checks and balances, and frankly, to bring in the forensic audit to the Human Rights Commission to examine the allegations I have made.

In answer to Mr. Murphy's suggestion, my book has not been the subject of any litigation. My facts remain undisputed.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Who should conduct this forensic audit?

[Ezra Levant]

I think it should be, at the very least, the Auditor General. I think it may require some forensic work on the Internet side. Of course, I would like a judicial inquiry, but I don't think that's practical.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

You said that the Auditor General should conduct the audit, but have you asked her to do so?

[Ezra Levant]

I have not done so, but I'll take your suggestion and do that immediately.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

That is not my suggestion. I am trying to understand your position. Listening to you, I sometimes get the sense that you are asking us to conduct the audit.