Evidence of meeting #36 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was mortgage.
A recording is available from Parliament.
October 5th, 2009 / 4:25 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
I listened to the discussion carefully. I must admit that I had a little trouble following you.
Did you read the decision in Taylor, the report from 1990 in which the Supreme Court....
4:25 p.m.
Bloc
4:25 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
You have a problem. You may disagree with the Supreme Court's ruling, but, unfortunately for you, we are bound by it. The Supreme Court interpreted section 13, and that is precisely the provision you object to. There are two options: either we amend it or we abolish it.
4:25 p.m.
As an Individual
Yes, but as the tribunal judges both recently concluded, the very narrow approval to section 13 given by Chief Justice Dickson is not what's going on at the moment.
Now, I disagreed with that Supreme Court decision at the time because it seemed perfectly obvious to me that, just in the way of things, it would expand, and what he claimed was the very narrow, specific approval that he gave the Canadian state to restrict speech.... Eventually all these other barnacles encrust to it, and the thing expands. I don't believe Justice Dickson would support that ruling today.
4:25 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
We will not speak for the Honourable Justice Dixon. But when the Supreme Court ruled on section 13, it stated that there was also—and this is what I am getting at—paragraph 2(d) of the Canadian Charter of Rights and Freedoms, which is extremely important. Should we also abolish that paragraph?
4:25 p.m.
As an Individual
--from what Chief Justice Dickson saw 19 years ago. These distinctions were outlined by the recent tribunal ruling by Mr. Hadjis. The first distinction is that 19 years ago the Canadian Human Rights Commission did not have its current punitive powers. Now it can levy enormous fines. So it has taken on a character almost like that of a police or criminal matter.
The second distinction was that the commission, which was designed to be a conciliatory, mediating organization, has become “aggressive and relentless”. It doesn't care about mediating. It's an attack organization. These are two differences in the commission today.
The third, sir, is that it has become manifestly political.
4:25 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
I have a big problem. We have the Supreme Court's decision and we have section 2 of the Canadian Charter of Rights and Freedoms for as long as it respects section 1 of the charter.
As for section 319 of the Criminal Code, I referred to it when arguing cases; it is very broad. You must not agree with section 319. Should we abolish it, as well?
4:25 p.m.
As an Individual
No, sir, and here's why I would politely disagree with you.
The procedural limits on section 319 include approval by the Attorney General for prosecution. That's just one small example. You would have to have a political sign-off at the highest level so it would never tolerate one man gaming the system, as Richard Warman has done.
The second thing is that all the legal defences in section 319 in the Criminal Code that are not in the Human Rights Commission and all the checks and balances on the prosecution. If a police force conducted itself the same way as this commission has done, police chiefs would be fired.
4:25 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Our role is not to investigate someone who may not have done their job properly; that is the minister's job, and he will do it. Our role is to determine whether section 13 should still be included in the Canadian Human Rights Act, and that is what I want to do. My first reflex is not to think that we should abolish section 13 because so-and-so did not do his job properly. That is where I have issues.
4:25 p.m.
As an Individual
Ezra made the fundamental point that even if you have broadly written language there are the traditional protections the defendant has when he is called into a criminal court. There is a reason why section 13 is attractive essentially to politically motivated ideological crusaders. That is because the defendant does not enjoy the traditional protections of the Criminal Code. He does not enjoy the right to confront his accuser in open court. His accuser has the prosecution paid for. The balance between the judge, the jury, and the prosecution under the tribunal system is completely wrecked. Until they had a falling out, thanks in part to Ezra and me in recent weeks, the tribunal was essentially the house pet of the commission. No matter what our problem may be with section 319 of the Criminal Code, it is still better to have a broadly written section of the Criminal Code than something such as section 13, which is appallingly written but also offers the defendant none of the traditional protections.
4:25 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you.
I'm going to allow one more question.
Mr. Rathgeber, you have five minutes.
4:30 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Mr. Chair.
Thank you both, Mr. Levant and Mr. Steyn, for your very enlightening comments regarding this problematic issue.
I must say at the outset that I disagree with my friend Mr. Lemay's reading of the 1990 decision of the Supreme Court in Taylor. It is my understanding that the majority, although they upheld it, did state that section 13 ought to be narrow and confined to extremely hateful messages. As I see it, we've seen in the post-Internet era that this has been interpreted rather liberally, and I think you would agree with that.
But on my question, I mean, we have to find some balance between freedom of expression and the protection of human rights--or what I prefer to call civil rights. I was struck by Professor Moon's report when he indicated that, in his view, censorship ought to be “confined to a narrow category of extreme expression--that which threatens, advocates or justifies violence against the members of an identifiable group”.
Short of condoning, justifying, or inciting violence, he appears to be an advocate for freedom of expression, unqualified. I am assuming you're both going to agree with that, but I'd like that confirmation, please.
4:30 p.m.
As an Individual
Yes, and this answers Mr. Comartin's point. We've always had rules against violence. Even Hitler could not have prosecuted the Holocaust if he hadn't changed real civil rights. Hitler's language could not burn down a synagogue. Hitler's language could not send a Jew to the gas chambers.
He had to change those laws to destroy the real civil rights of Jews. As for this counterfeit civil right not to be offended, that didn't hurt any Jews other than hurting their feelings. Hitler could not have prosecuted the Holocaust in 1933; he had to change the real laws.
I care about protecting real laws against violence. We have them in our Criminal Code. For uttering death threats and actually inciting violence, it's there in the code. I say that in the interests of an open, vigorous, democratic society like Canada's, we should never criminalize mere emotions or feelings or words.
4:30 p.m.
As an Individual
I would agree with that. I wholeheartedly support laws against the incitement of violence, but what the human rights regime is doing now is criminalizing differences of opinion.
There is a man in Saskatchewan who is under a lifetime speech ban. He cannot express an honest opinion about homosexuality and gay marriage. He happens to be opposed to gay marriage. The former Prime Minister of Canada, Monsieur Chrétien, only a few years ago was opposed to gay marriage. I think I was here in the year 2000 when the Liberal Party of Canada voted at its convention to oppose gay marriage. Something that was a perfectly legitimate point of view 10 years ago is now the occasion for a lifetime speech ban.
There is a difference between criminalizing incitement to violence and simply criminalizing differences of opinion, and there's far too much of that going on under the human rights regime.
4:30 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you.
The last question I have is with respect to costs.
Mr. Levant, I live in Alberta, as do you, and I'm well aware of your highly public dispute with the Alberta human rights commission, which cost you in excess of or close to $100,000 in legal fees. As you've said many times, the complainant didn't pay a dime for legal fees and had the investigation and the prosecution done by the taxpayers of Alberta.
You're a lawyer. You know that in Alberta it costs $200 to file a statement of claim. As you indicated in a response to one of the members opposite, if you're unsuccessful in litigation, you end up paying at least party and party costs, and sometimes solicitor and client costs.
Do you think there's any role for costs in this issue with regard to a deterrent to filing frivolous complaints? A person would have to be serious about bringing a complaint against an individual if there were a financial disincentive if they were unsuccessful.
4:35 p.m.
As an Individual
Well, listen, would that make this problem, instead of a 100% problem, just a 99% problem? Yes, it would, but that's such a trifle compared to the tyranny of this entire idea of censorship.
If Richard Warman didn't have all his expenses paid, would he be less punitive in his approach? Maybe, but I've listed about 10 other procedural problems. I don't want to tinker with a rotten idea. Would it be better if someone had to pay two hundred bucks before putting me through a $100,000 gauntlet? Yes, maybe, but that is a band-aid. We need more than a band-aid. We need open heart surgery.
4:35 p.m.
As an Individual
I agree with what Ezra has said.
There's a reason that the traditional protections of the common law arose over centuries. They were worked out as a balance to enable people to access the justice system in reasonable ways. It seems very attractive to think of a way that shortcuts all that to say, oh well, it's unfair if somebody has to go and see a real lawyer, write a cheque for a retainer, and take it to a real court; couldn't we do something that provides him with drive-through justice at no cost?
No, you can't. There's a reason these protections arose over centuries: because they work.
It is horrifying to me that we seem to think that in the role of opinion and speech, of all areas, that is the case for having this kind of drive-through justice system. It's not at all. If you're going to drag someone into court for their opinion, the least you can do is respect the traditional protections of the legal system and not get it short-tracked for you, and not get your tab picked up, as Richard Warman has had, for seven years now by the Canadian taxpayer.
4:35 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you so much. We're at the end of our time.
I want to thank both of you for appearing before us. You've heard that there may be a request for you to return to the committee. We will keep you informed.
In the meantime, as per Mr. Comartin's request, if you could provide us with the supporting documentation, you can send it to the clerk, and we'll make sure it's distributed to each committee member.