Justice Committee on Oct. 5th, 2009

[Ezra Levant]

Let me say this. The facts I outlined in my opening remarks are already documented. Most of them are from sworn court testimony from Human Rights Commission staff, so we already have the material. We could have it confirmed by the Auditor General, but at the end of the day, Monsieur Ménard, it comes down to you and the others here to do something with the information. If the Auditor General confirms what I've put to you, who will then act? We can wait for the Supreme Court, but I prefer that our legislatures take the initiative.

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

I understand perfectly. I can see this is important to you. I get the impression that you do not think the legislation is bad per se but that you are angry with certain individuals for what they did.

[Mark Steyn]

No, both of us have a principled objection to section 13 and are principled defenders of freedom of speech, so I have a philosophical objection to section 13. I have always had a philosophical objection to section 13, even at the time of the Supreme Court Taylor decision. However, what I did not know at the time was that it was not just bad in theory, but it was wholly corrupt in practice. That is why I think section 13 needs to be repealed, both because it has been wicked in practice, but also because it is poorly conceived as a matter of theory.

[The Chair, Conservative, Ed Fast]

All right, we're going to have to cut you off there and move on to the next questioner.

Mr. Comartin, you have seven minutes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

I think I, like everybody sitting at this table, am at some disadvantage, Mr. Levant and Mr. Steyn, in terms of the accusations you're making against members of the commission and their staff. In that light, because this investigation or study by this committee will go on for some time, would you be willing to come back at some point in the future when we have heard the other side?

[Ezra Levant]

Absolutely. In fact, Mr. Comartin, if you want documentary evidence, I would be happy to send you documentary evidence testifying to every fact I put forward, all of which is either commission documents obtained through access to information or sworn testimony before the tribunal itself by commission staff.

I must tell you that when I first encountered these facts, I was so shocked by them that I simply refused to believe them: that the Human Rights Commission itself was the largest propagandist of anti-Semitic material in Canada. I didn't believe it. I thought I had encountered some conspiracy theory. I painstakingly reviewed thousands of pages of testimony, and I can't believe what I found. I think you'll go through that same awful revelation when you see the facts.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Levant, what you have to do is send it to the clerk of this committee.

[Ezra Levant]

I'll do so.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Steyn, would you also be willing to come back?

[Mark Steyn]

Yes. I share the same concerns as Ezra. I happened to be reviewing a routine e-mail in the middle of the night, and I couldn't believe that the so-called Human Rights Tribunal had approved the so-called Human Rights Commission's wish to hold a trial in secret at which the accused--never mind not being able to confront his accuser in open court--would in fact be entirely excluded from the courtroom. Both of us were shocked when we discovered what was going on, and that is part of the reason we are here today.

I'm not going to let this go. I don't believe secret trials have any place in this country, except in the most extreme national security circumstances, and even then, that's debatable. But they certainly have no place over so-called hate speech or pre-crime. It's a disgrace; it shames this country, and you as the parliamentary oversight for the commission and the tribunal should do something about that.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I get to decide what I do, at least as a parliamentarian, Mr. Steyn.

With regards to the principle of a legislated body, short of criminal legislation, whether it be in the Human Rights Commission or in some other legislation, you're both totally opposed to that. You're satisfied to leave the hate crime within the hate propaganda section of the code, but nothing further than that. Is that the position of both of you?

I don't want to lay too much of a trap here. Let me throw this at you: the German situation. Germany has passed legislation that actually makes it a crime. Let's say we don't go that far. As a country we're going to say that it is hate literature, hate propaganda, hate speech if you deny the Holocaust, just because that is damaging to the Jewish community per se. Let me say we're going to do that for the Holocaust and we may do it for some of the other well-known genocides, be it Rwanda and the more recent ones, or go back to the Armenian-Turkish one, those kinds. We may pass a law to say that is hate speech and you're not allowed to say that in this country.

Would you be willing to support that kind of legislation?

[Ezra Levant]

I'm Jewish myself. I affiliate and recognize as a Jew. Obviously the Holocaust is something that's very sensitive to Jews and others, and yet I agree with the Berlin Jewish community, which last month announced that it supported the publication of Mein Kampf. Why would the Jewish community of Berlin support the publication of Mein Kampf? To teach people about the horror of the Holocaust.

Mr. Comartin, you and I are from a generation where we knew about it, but what about an 18-year-old today who knows nothing about the Holocaust? We need to teach why it's wrong. We need to expose these ideas to the new generation.

From a practical point of view, sir, trying to ban ideas in the age of the Internet won't work. All it will do is attach glamour—oh, those ideas are so exciting and sexy that the government wants to ban them. People will want to find out what they're about. You will glamorize it. David Ahenakew uttered some ridiculous comment about the Holocaust. Instead of it dying in a conference with 100 people snickering at him, he became a national celebrity. If you google his name, you'll have 20,000 hits, because he was turned into a star and, at the end of the day, acquitted.

I'll close by telling you three reasons why hate speech is better to be out in the open rather than in private. This was said by Gilles Marchildon, the head of Egale, the gay rights lobby. He was asked why he didn't want to ban anti-gay speech, even the most vicious kind. He gave three reasons why he was for freedom of speech.

One, he wanted to know who the bad guys were so he could isolate them and argue against them.

Two, he wanted what he called a teachable moment—look people, we just saw an act of bigotry; let's re-educate people on why that was wrong.

Three, which I think may be the most important, he did not want to out-source his civic duty to some bureaucracy. If he saw an act of anti-gay bigotry, he thought it was important for everyone to personally write a letter to the editor or tell someone that we don't tell jokes like that, rather than calling 911 and having a six-year prosecution.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I must say, Mr. Levant, that the argument in theory makes sense, but the reality is that it didn't do anything to let Mein Kampf be published or spread around the globe. It didn't stop Hitler from coming to power. It didn't stop him from perpetuating the atrocity of the Holocaust.

There are some basic arguments on the other side of that, as Mr. Steyn said earlier, as to whether in fact, by exposing it to the light and allowing debate on it, that in fact has the desired effect. But it also has the effect of perpetuating those kinds of slanderous, malicious, and vicious comments.

[Mark Steyn]

That analysis sounds as if it ought to be right, that there are some things so terrible that you can't let them sit out there. But the problem with it is that the Weimar Republic--Germany for the 12 years before the Nazi Party came to power--had its own version of section 13 and equivalent laws. It was very much a kind of proto-Canada in its hate speech laws.

The Nazi Party had 200 prosecutions brought against it for anti-Semitic speech. At one point the State of Bavaria issued an order banning Hitler from giving public speeches. But all it did, as Ezra said, was glamorize him and make him a hero: “What is he saying that is so dangerous the state won't permit him to say it?” If Hitler came back today--I don't know where he is; he's 128 years old and living in the South American jungles, or wherever--but if he came back today he would laugh his head off at the anti-Holocaust denial laws in Europe, because it would show that his ideas were still powerful and dangerous.

The lesson we should learn from Germany is that for the 12 years before Hitler came to power it had all the hate-speech laws and section 13 laws in the world, but they did nothing but glamorize Adolf Hitler and the Nazis and facilitate his rise to power.

[The Chair, Conservative, Ed Fast]

Thank you. We're out of time.

We'll move to Mr. Moore for seven minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you both for being here with us today, for your testimony, and for some of the discussion we've had.

So far no one has touched on Professor Moon's report. This might be unfair, but I assume both of you are somewhat familiar with it. Can you comment a bit on his findings, his rationale, and how you feel this committee should approach his findings?

[Ezra Levant]

Professor Moon is a professor at the University of Windsor who was paid $52,000 to write a 45-page report by the Human Rights Commission. He shocked them by calling for the repeal of section 13. Even though the commission hand-picked him and paid him more than $1,000 a page, he said we should repeal this law. That was stunning, because it showed that even people deep within the human rights industry are very uncomfortable with political censorship.

He had other recommendations in his report that are outside the scope of our review today, but for someone hand-picked by the committee to say we're doing something wrong was a real warning light.

[Mark Steyn]

I think he found himself in the same position as everybody who looks at this dispassionately. Professor Moon is certainly no fan or friend of either of us, but he found that, as a fair-minded man, when you look at section 13 in the cold light of day it's completely indefensible.

He also made the point that it is unworkable in the age of the Internet, unless Canada is prepared to take the kinds of actions China does with websites. You simply cannot enforce this law in the modern age. You get what is always the worst aspect of tyranny--a kind of capricious tyranny that just alights on certain easy targets and ignores far more problematic ones. For that reason, Richard Moon concluded that whatever his own feelings about a lot of the speech out there, section 13 only made the situation worse.

[Rob Moore, Conservative, Fundy Royal, NB]

I think both of you have touched on this a bit, but on the provisions that exist today in the Criminal Code of Canada about hate speech, people hear of human rights commissions, tribunals, and trials. How does what's in the Criminal Code mesh with our human rights legislation? What's the difference between someone going through a trial under the Criminal Code after criminal charges have been brought against them versus...? You've both had brushes, to one degree or another, with human rights commissions, so what's the big difference or differences?

[Ezra Levant]

Well, there are so many differences--for example, the right to a speedy trial. If you're charged with a crime, you have a right to a speedy trial. In my case I went through a 900-day investigation and I didn't even get to a hearing. Marc Lemire went through a six-year hearing. Accused publishers don't have the same rights as accused murders.

Another difference is search and seizure without warrant. I'm speaking for the moment about the provincial act under which I was charged. The human rights officers have the right, without a warrant, to come into my office and take anything--my hard drive, my documents. Again, accused criminals have rights that I don't have.

In answer to Monsieur Ménard's point, I focused on some of these rules of law and procedural unfairnesses because I had hoped to appeal to people on this committee who might have some sympathy to censorship, that even they would be appalled by the practice of censorship. I would hope that everyone is against censorship, but even if there is a censor on the committee, I hope they would understand that the brutal enforcement of this law is another source that brings the administration of justice into disrepute.

I mentioned no legal aid. The disclosure practices would be laughed out of court. There is the entrapment. There are so many flaws that you don't have to be a lawyer to know something is wrong.

The tribunal members, very bravely, have said that enough is enough. They're throwing it out there for someone else to fix. I don't want to wait 10 years for this to go to the Supreme Court; I think this Parliament can fix it now.

[Mark Steyn]

I'd like to add what I think the biggest difference is, and that is that the truth is no defence. You can make a statement, every aspect of which is factually accurate, and if certain people decide they're going to be offended by it the factual accuracy is irrelevant.

In the triple jeopardy I underwent in the Maclean's case, I had quoted a Norwegian imam. I had quoted him entirely accurately. He had been quoted in Norwegian and other European newspapers. Yet because somebody took offence to it from reading my quotation in Maclean's, that became the cause for three human rights complaints.

There is something outrageous in that. Section 13 allows aggrieved people effectively to define their own reality and eliminate what ought to be the bedrock of any justice system, that truth is the ultimate defence. I think that's the worst aspect of section 13, the commission, and the tribunal.

[Rob Moore, Conservative, Fundy Royal, NB]

Do I have time, Chair?

[The Chair, Conservative, Ed Fast]

You have one minute, so make it short.

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Levant, you mentioned 900 days. Obviously you are two individuals who are both smart and articulate. I'm not sure that everyone who gets caught up in these cases would have those benefits. But with respect to a 900-day hearing, what kind of impact did that have on your ability to put food on the table? You said there's no legal aid. I assume financially you're not getting any help, at least from government, so practically speaking, how does that work?

[Ezra Levant]

That's right. And of course Richard Warman is paid to file complaints and he receives awards of tens of thousands of dollars.

My legal fees and those of the magazine amounted to about $100,000. Since I won and I was acquitted, if I had been sued in civil court I would have had my costs reimbursed. That's not the case with human rights commissions. If I had been charged under a criminal court, I would have had legal aid. The process has become the punishment.

Again I say to Mr. Ménard, I despise the censorship because I believe Canadians are free people. But putting that tremendous issue aside, the process here brings the administration of justice into disrepute.

The reason I was acquitted and he was acquitted, frankly, is that we're noisier, more articulate, more politically connected, and we're able to raise funds. But until we came along, no one had ever been acquitted, because they were beneath the law. They had no money. They were not articulate. Ninety-plus per cent of them couldn't afford a lawyer, and no lawyer was given to them. No one should be above the law in Canada, but no one should be below the law.

I think, as Mark Steyn alluded to, this whole thing has to be thrown out because it has been corrupted all the way through. The Criminal Code protects truth and honest belief as a defence; this human rights commission does not.