Thank you. I won't comment on that hyperbolic introduction.
Let me start by giving you the overall perspective of the Canadian Jewish Congress on the matters before us. The Canadian Jewish Congress believes that section 13 is an important resource in protecting vulnerable communities from the harm caused by hate propaganda. It believes that section 13 is constitutionally appropriate in a free and democratic society, because it deals only with dangerous and harmful speech and is not concerned simply with offensive speech. It deals with dangerous and harmful speech in a way that minimally impairs the ability of Canadians to debate freely important social and political issues, including the ability to take strong and controversial positions.
The Canadian Jewish Congress believes that the Criminal Code, and especially section 319, which criminalizes some aspects of hate propaganda and incitement to violence, is not an adequate substitute for subsection 13(1) of the Canadian Human Rights Act. It also believes that it is not advisable to restrict hate or the definition of hate to advocating violence. That having been said, the Canadian Jewish Congress does not believe that the regime under subsection 13(1) of the Human Rights Act is without issues or problems. It believes that subsection 13(1) and the way it is administered could be significantly improved, so as among other things to weed out frivolous complaints at an early stage, to speed up the process, to better protect the legitimate interests of respondents.
Let me just add a few words of specification to that general framework.
First of all, it is important for us to remember the context. Subsection 13(1) does not deal with speech in the abstract. It does not deal with all written, let alone with all oral, communication. It deals with a single medium of communication, namely the Canadian telecommunications system, notably the Internet and computer-generated telephone messages, what today we call “robot calls.” The regulation of telecommunications is not unfamiliar. On the broadcasting side, the CRTC engages in regulation on the basis of content on a daily basis. The regulation of speech outside of the telecommunications context is also not unfamiliar, as some would portray it as being. The regulation of speech is not confined in our society to prohibiting someone from yelling “fire” in a crowded theatre.
Let me just remind the committee of some interesting examples. We have the law of defamation, which regulates the content of speech, attaches penalties to speech. We have the principle of contempt of court, which regulates speech dealing with the justice system. We have regulation of advertisements addressed to children. We have regulation of advertisements of dangerous products like tobacco and alcohol. We have regulation of the strictest sort dealing with pornography, and most importantly, child pornography, including merely cartoon or even verbal representations. The key in every case is that this regulation is geared to preventing harm and saving society from danger.
Is hate speech dangerous? To ask the question is to answer it. History provides the clearest examples of the mortal dangers—that is, dangerous to life—that hate speech can carry. Study Nazi propaganda in the 1930s. Study the Cambodian propaganda in the 1970s. Study anti-Tutsi propaganda in Rwanda of the 1990s. Study the racist propaganda in the former Yugoslavia in the 1990s. You will get the answer.
Does subsection 13(1) of the Canadian Human Rights Act target only dangerous speech, or is it aimed at politically incorrect speech? Ms. Lynch gave you the legal definition of “hate”, and I'm not going to go over it. In my submission to this committee, subsection 13(1) targets dangerous speech. It targets speech that demonizes individuals on the basis of their affiliation with a group. It is doubly dangerous. It is discriminatory because it says people are bad or worthless on the basis of the group they belong to, not on the basis of what they do. And it is doubly bad, because as the definition Mr. Justice Brian Dickson gave for this, it portrays those groups as lacking any redeeming merit.
In my submission, demonization is the key, not incitement to violence, because demonization is the necessary precursor in every case for subsequent violence. If a society wishes to protect itself against the horrors of genocide or violence against individuals based on their minority affiliation, it can't start with the incitement of violence; it must start with the demonization, the denial of any redeeming merit.
Is the Criminal Code an adequate substitute or an adequate basis to protect society from these sorts of dangerous speech? In my submission, it is not. The target of criminal prosecution is the wrongdoer, and appropriately, we set the highest sorts of standards in order to prevent the horror of an unjust conviction and penalization.
The focus of the Human Rights Act is the message itself, not the wrongdoer. Its purpose is to protect society from the baleful consequences of those most dangerous messages. That is an appropriate focus, and it is a focus that allows a procedure that falls somewhat on the other side of the high standards of the criminal law.
Is violence the proper key? I've already said that although incitement of violence is in every case the spur to acts of genocide, destruction, and acts of violence against minorities, it's too late in the process. It is the demonization that precedes it that has to be addressed.
Is the focus of the Canadian Human Rights Act too dangerous and too subjective? In my respectful submission, it is not. Mr. Justice Dickson's definition is very precise, and it aims only at the most dangerous and extreme sorts of speech.
The second point, enforcement of that high standard, is guaranteed by a system of judicial review, up to and including the Supreme Court of Canada if necessary, to ensure that standard is adhered to.
Finally, does that mean the section is perfect? It is not perfect. The Canadian Jewish Congress believes there is great merit in expanding the gatekeeper function of the Canadian Human Rights Commission to allow it to dismiss complaints early on. The Canadian Jewish Congress believes there is great merit in levelling the playing field so there is an opportunity, where people are enmeshed in the proceedings and incur large expenses, for them to be compensated if the case should turn out to be groundless.
We also believe in the need for more specialization within the commission.
Those are my remarks.