Justice Committee on Oct. 26th, 2009

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

You were here when I suggested to Chief Commissioner Lynch that in addition to the recommendations that her commission has proposed, we should be looking at the possibility that the commission actually have carriage of the case before the tribunal and be the only party that would have carriage of it. I'd be interested to hear what your views are on that.

And I simply want to say that I do not agree with my colleague Mr. Rathgeber that the definition of demonization and dehumanization is subjective. I believe sufficient studies have been done over numerous decades that have provided very clear, objective criteria to determine whether or not there's a pattern of demonization and dehumanization of an identifiable group.

[Prof. Richard Moon]

With regard to the first part of your question, in my report, as part of my alternative set of recommendations, I did in fact propose that the commission have carriage, not just at the tribunal but at a much earlier stage, to take some of the burden off private complainants.

[Mark Freiman]

Let me respond to the second part, because I didn't get a chance to respond before.

I agree that it is not subjective. The problem is that the words “likely to expose” seem to invite a predictive judgment on the part of the tribunal. But it's no different from the definition in defamation cases, which I sometimes do in my day job. A defamatory statement is one that exposes a person to hatred or contempt, and between “exposes” and “likely to expose” there's really no semantic difference. That's why Justice Dickson specified what is meant by exposing to hatred and contempt; it is demonization.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Monsieur Lemay for one minute and one minute.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

No, I have all the answers I need and I am thinking, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Comartin.

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

I want to go back to the individuals who are appointed to the tribunal, with regard to developing a perhaps stronger body of law.

Has either one of the delegations looked at the possibility of having clearer criteria for the skills that people should have who are appointed to the tribunal?

I know that you may appear in front of them again, Mr. Freiman, and you may not want to answer the question.

[Mark Freiman]

No, this have been a hobby horse of mine from the days when I was Deputy Attorney General of Ontario.

Surely it would be advisable to have explicit criteria, but that's really administrative law reform writ large. If there could be a tighter control over the criteria for appointment, I don't see that it would harm anything, and it would probably benefit a great deal.

I wouldn't hold my breath.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Hiebert for one minute and a one-minute response.

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

Thank you, Mr. Chair.

Professor Moon, I note that Alan Borovoy of the Canadian Civil Liberties Association has made the same recommendation you have to repeal section 13, for slightly different reasons. Not only does he say that it stifles free expression; he also believes it's too vague, too wide, that there's no defense of truth, and that there are other consequences or sanctions that can occur when people make offensive speech. I haven't heard you comment on those aspects of it, and I was wondering whether you could.

The second part of my question is brief. The commission is proposing that respondents have the right to recover their legal costs in exceptional cases. I don't understand why that wouldn't be the case in all cases when the tribunal has found someone to be innocent. Comment on that as well, if you could.

[Prof. Richard Moon]

All in one minute?

[An hon. member]

Take your time.

[Prof. Richard Moon]

I'll work backwards.

I suppose that, because my principal recommendation was the repeal of section 13 and I had a limited time in which to write this, I did not give significant consideration to cost. Certainly, as part of my alternative recommendations, though, if the commission took carriage of the tribunal case, it would seem to me to make much more sense that there be some support provided for the defence of any respondent who was subject to a complaint. I would frame it in those terms.

In terms of Mr. Borovoy's concern, I do believe that at the front of the process the language of section 13 appears vague, but I think the reality is that through judicial interpretation.... There are limits to the ability of a body, any body, to provide a clear definition to what counts as hate speech that ought to be prohibited or regulated, but I think it has been significantly narrowed through judicial interpretation.

With that said, my problem is not so much with the language as with the location of a prohibition of this kind within a process and with its being given over to a body that's responsible for regulating discrimination more broadly. Of course, we have moved over time to increasingly broad understanding of discrimination, away from discrimination as an intentional phenomenon to ideas of constructive and of effects discrimination, in which it makes a lot of sense to sit parties together and to help them understand that perhaps practices they hadn't thoroughly thought through might have certain negative impacts on others. All that makes perfect sense. At the same time, when speaking about the hate speech elements, we have sought to narrow the scope dramatically in order to ensure that we remain committed to free speech.

So my concern is that a body that's principally concerned with regulating discrimination, broadly understood, is given authority to deal with hate speech narrowly understood. There's a tension that operates that leads to at least the investigation of complaints that in the end will almost certainly not go to tribunal and not succeed at tribunal, but in which the process of investigating is itself a burden placed upon parties. That's the concern I have: it has to do with the process beginning in the first place.

[The Chair, Conservative, Ed Fast]

Thank you.

Professor, thank you for your testimony.

Mr. Farber and Mr. Freiman, your testimony has been helpful, and it will help us as we prepare a report. Thank you.

We're adjourned.