Evidence of meeting #43 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 speech.
A recording is available from Parliament.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Chair.
Thank you, gentlemen, for being here.
Professor Moon, as well as the overview that you've given us today, I understand you've also prepared a much lengthier article for one of the Saskatchewan law schools. When will that be published?
Prof. Richard Moon
In the spring. Last spring they invited me to do their annual lecture on either an issue of religious freedom or on human rights, and I opted to write on that issue.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I understand. That article still hasn't been published. Is there any way this committee can see that before it's published?
Prof. Richard Moon
I can ask the editorial board. I don't see why they would have any objection.
You have, I understand, an abridged version of that, which was the lecture I actually presented last week. The coincidence of these two events is entirely that, a coincidence. Interestingly enough, it became rather public, to my surprise, after I was asked for a hard copy at the end of the public lecture, and I discovered that it circulated more broadly than I anticipated. In any event, I decided that it seemed appropriate to submit that to the justice committee, and I've done that, so I don't know whether you have that in front of you or not.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Professor Moon, the point that Mr. Freiman raised, which is where my orientation is as well.... There are two parts to this. How do you respond to how we deal with that expression that demonizes a particular group, and do you see any way it can be done by amending the Criminal Code, if we're not going to do it under the Human Rights Act?
Prof. Richard Moon
The view I took in my report is that we really ought to focus only on the most extreme forms of expression, and I sought to tie it to the idea of violence. In fact, I don't support the idea that it's necessary to demonstrate that violence ensues from the speech itself, but to signal the extremity of the speech at issue so that one could understand it is so extreme in character that it could be seen as supporting or justifying violence against a group. As a consequence, I might even say that in practice, if you look at the decisions of the Canadian Human Rights Tribunal, I'm not sure--and I realize I'd better slow down here--that the standard applied in those cases is different in any noticeable way from what would be applied by a criminal court in applying section 319.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Certainly if you're going to introduce intent into it, that would be a significant shift.
Prof. Richard Moon
Again, my view is that in practice I'm not certain that in any of the cases in which the tribunal found a breach of section 13 the result would have been different had there been an intent requirement. In fact, if you read those judgments, the language of intent often figures into the description of the speech and the wrong that occurs.
President, Canadian Jewish Congress
No, I don't, unfortunately.
First let me say that I have the highest respect for Professor Moon. These sorts of exchanges I think are profitable exchanges, as opposed to the kind of debate and overheated rhetoric that sometimes characterizes these discussions. I think intention actually is a dangerous precondition if we are focusing not on the wrongdoer. If we want to punish a wrongdoer, then intention is an absolute prerequisite, but if we are focused on the speech itself, then searching for intention is a side trip that isn't profitable. What will inevitably happen is legal maxims like “a person is taken to intend the inevitable consequences of their acts”, which really leaves out intention from the requirement.
And it's the same thing with violence. What Professor Moon is saying is not all that different from what experts on anti-Semitism and other forms of extreme genocidal hatred say. The precursor is the dehumanization and demonization of the target group to the point where the audience says, “If that's true, then these people have no right to be around here”. It doesn't have to be a direct incitement to violence. The demonization is an indirect incitement to violence, so again importing that as a necessary prerequisite is just a side trip, because you will find it by necessary implication, in any event. You'll never be able to prove objectively the presence of a subjective state of mind or intention on the part of the wrongdoer and you will never be able to point to the direct incitement to violence in the most vile sorts of propaganda. It is all implicit.
NDP
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Do both of these. Comment on that, but also comment on Mr. Freiman's point about specialization within the tribunal, if you would, because I don't think you addressed that in any of your recommendations. If you did, I missed it.
Prof. Richard Moon
I don't. If truth be told, I wrote this report focusing on the role of the commission rather than the tribunal, and as I understand it, there is a degree of specialization within the commission itself.
One of the difficulties--this is a practical difficulty, I can imagine--is that the number of tribunal adjudications under section 13 is very small. It is the practice of many courts, of course, in which certain judges who have experience and knowledge in a particular area are generally assigned particular cases that arise, so it certainly would make sense to do something of that nature, I would think.
Very quickly, I would just like to draw the committee's attention to a particular provision of the Criminal Code that is under-utilized, and that is--I hope I've got the number right--section 320.1. It is a provision that enables an application to be made that can lead to the taking down of web material, the erasure of computer-based material, without a determination of who is responsible for it and without a determination that there was any wrongful intention, if it's determined that the material is sufficiently hateful in character that it would breach subsection 319.(2). Now, it's not used very often, and there may be some practical issues around it that I'm not aware of, but it does seem to me to be a valuable alternative option.
Conservative
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Mr. Chair.
Thank you to all the witnesses for your attendance here today and for your very interesting presentations.
First of all, at the beginning I must say, Mr. Farber and Mr. Freiman, that I find it reprehensible if anybody defaces a Jewish headstone, or any headstone, for that matter. I represent a portion of Edmonton. A couple of synagogues in my city have been defaced not dissimilarly to the images on the photos that have been circulated. I find that reprehensible. But it begs the question: what protection was in section 13 of the human rights code for protecting your members, your faith, against that very, very reprehensible act?
President, Canadian Jewish Congress
Let me start. Mr. Farber's a far greater expert than I in these matters.
The first thing that subsection 13(1) does is it acts as an official denunciation, on behalf of the Canadian public, of this sort of communication. That denunciation may strike some members of this committee as being superfluous, but in these days it may not be. The fact of an official statement that this is beyond the realm of reasonable communication--this is not a debate, this has crossed over the line--is extraordinarily important. It's also important as an assistance to impressionable people to understand that what's going on here is beyond the realm of all reasonable debate.
Would taking down these websites prevent that sort of desecration? It's not clear to me whether it would or it wouldn't. It seems intuitively to be correct that the less the Internet becomes a forum--at least locally--for this sort of incitement, the better, and the more likely it is that people will be respectful. I'm not sure that it is a sufficient protection, but it certainly is an extraordinarily helpful sort of protection.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Clearly, in this example it wasn't sufficient protection, or any protection.
President, Canadian Jewish Congress
What we're talking about is influencing the nature of the debate.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
I understand that.
Mr. Farber, very briefly, please.
Chief Executive Officer, Canadian Jewish Congress
If I could just add one small point, the pictures that you saw were clearly a criminal act, in my view. It wouldn't have been covered under section 13. But I would like to just propose to you that had we used civil procedures as an example of how to deal with hateful messages, perhaps--nobody really knows--the use of the law itself would have a salutary effect.
We don't live in a perfect society. There will always be those racists and crumb-bums out there who will perpetrate these kinds of acts. My goal is educative. My goal is to use civil procedure in a way to help people learn, specifically young people, well before it comes to a point where we have to worry about swastikas being drawn on headstones of Jewish graves.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you.
My specific problem with section 13 are the words “is likely to expose”, and the sort of predictive element that is quite explicit in the drafting of that section. I listened to you very carefully, Mr. Freiman, use the words “dehumanizatio” and “demonizatio”. I guess the problem that I still have is with respect to who gets to decide what is demonizing and what is dehumanizing. It's a very subjective test. I just make that as a point.
My question is for Professor Moon. I must say, when I read your report over the summer I thought it was well researched and well thought out, and I certainly agree with your conclusions.
I believe, with respect to this incident on the weekend with the headstones, certainly the Criminal Code has prohibitions on vandalism, mischief, and trespassing. So I agree with your ultimate conclusion that the Criminal Code is the best place to deal with all of these issues. But I'm curious, if you believe that we're going to leave this matter to the Criminal Code, if it's also going to require an amendment to section 319. When I look at subsection 319(2), it provides a number of defences, but not promoting or agitating or supporting violence is not a defence to a charge under section 319.
Prof. Richard Moon
Certainly one of the things I do want to say to this committee is that if section 13 were repealed and we were to rely on the Criminal Code, I think it would be important to look at the Criminal Code and how it operated. There are a variety of issues, and I mentioned several of them in the course of the report.
Again, I think that the practice of the courts and how, under the guidance of the Keegstra decision of the Supreme Court of Canada, the hate promotion section has been interpreted is actually quite narrow. Although one can look at the language and perhaps be concerned about it, it may be that it is already the sort of test I would be looking for. I'm not a draftsperson. I would personally be more comfortable with language that sought to really signal just how extreme the speech we want to focus on is in character.
There are a number of other concerns. One of them really has to do with the role of the provincial attorneys general. As you may know, before a prosecution can be brought under the hate promotion provision, it's necessary to obtain the consent of the attorney general. I don't think there's anything wrong with that--far from it; it may in fact be a useful filter process of some kind. But concern has been expressed that some attorneys general in the past have not wanted to give their consent under any circumstance. I think we don't know a lot about that. Certainly I think I would be troubled if that became a way of simply nullifying the law itself.
Conservative
Conservative
The Chair Conservative Ed Fast
No. I'm sorry about that.
With your permission, what I'm going to do, because we have five minutes left, is extend by another five, if that's all right. That gives us ten minutes, but with a one-minute question and one-minute answer for every party represented here. Is that acceptable?
All right, we'll move forward on that basis.
Ms. Jennings, you have one minute and a one-minute response.