Justice Committee on Oct. 26th, 2009

[Professor Richard Moon, University of Windsor, Faculty of Law, As an Individual]

Thank you, and thank you for inviting me.

I'm quite certain I won't take ten minutes, but it's always easy to underestimate these things.

In a report I wrote for the commission, which was released last fall, I recommended repeal of section 13 of the Canadian Human Rights Act, so that the commission and the Canadian Human Rights Tribunal would no longer deal with hate speech, and in particular with hate speech on the Internet. I argued that hate speech should continue to be prohibited under the Criminal Code.

I took the position that state censorship of hate speech should be confined to a narrow category of extreme expression, that which threatens, advocates, or justifies violence against the members of an identifiable group. In my view, the failure to ban the extreme or radical edge of prejudiced speech carries too many risks, particularly when it circulates within the racist subculture that subsists on the Internet. Because the Internet audience is highly fragmented, it is easy for a particular website to operate at the margins and avoid critical public scrutiny. Hate speech on the Internet is often directed at the members of a relatively insular racist subculture. When directed at such an audience, extreme speech may reinforce and extend racist views and encourage extreme action.

At the same time, less extreme forms of discriminatory expression, although harmful, cannot simply be censored out of public discourse. Any attempt to exclude from public discourse speech that stereotypes or defames the members of an identifiable group would require extraordinary intervention by the state and would dramatically compromise the public commitment to freedom of expression. Because these less-extreme forms of discriminatory expression are so commonplace, it is impossible to establish clear and effective rules for their identification and exclusion. Because they are so pervasive, it is vital that they be addressed or confronted, rather than censored. We must develop ways, other than censorship, to respond to expression that stereotypes and defames the members of an identifiable group.

Finally, I argued that a narrowly drawn ban on hate speech that focuses on expression that is tied to violence does not fit easily or simply into a human rights law that takes an expansive view of discrimination, emphasizes the effect of the action on the victim rather than the intention or misconduct of the actor, and employs a process that is designed to engage the parties and facilitate a non-adjudicative resolution of the "dispute" between them.

The main problem is that free speech interests are affected every time an investigation occurs. Even if the commission dismisses the complaint, the investigation engages the parties and takes eight to ten months to conclude. Because the commission is required to investigate a complaint, unless it is trivial, vexatious, frivolous, or made in bad faith, it is bound to investigate some complaints that are unlikely to proceed to adjudication. As well, because section 13 is located in a law that seeks to advance the goal of social equality through education and conciliation, the commission may be inclined to err on the side of inclusion when deciding whether a complaint should be rejected prior to investigation on the grounds that it is trivial. Human rights commissions may be reluctant to exclude a complaint prior to investigation on the grounds that it is trivial, because such a finding may be seen as downplaying the genuine feelings of hurt or injury experienced by minority group members and will preclude the possibility of a facilitated resolution of the “dispute” between them.

In the report I also raised questions about the appropriateness of relying on private citizens to initiate and pursue section 13 complaints. There are a variety of reasons this is problematic, although the main one is simply that it puts too much of a burden on the private complainant. Hate speech is most often directed at a receptive, or at least interested, audience and is only known to the complainant because she or he has looked for it or stumbled across it. The complainant carries responsibility for the complaint throughout the process, at both the investigation and adjudication stages. In addition to the burden of time and money that a complainant must bear, particularly if the complaint proceeds to adjudication before the tribunal, some complainants have been subjected to threats of violence. We should not expect complainants to bear such a burden.

Searching neo-Nazi or white supremacist websites for hate speech and engaging with individuals on those sites to determine their identity involves ethical challenges that should not be dealt with by private citizens. Hate speech harms the group and the community. It is a public wrong. The state, not private citizens, should be responsible for the enforcement of the law.

There is a serious debate to be had about the regulation of hate speech by human rights commissions, but the debate is difficult and complex and there are many reasonable positions one can take on the issue. I do not agree with those who argue that the commission should be involved in the regulation of Internet hate speech, but I do not doubt their good faith in taking this position. Unfortunately, the most vociferous and indeed the most media-amplified critics of the commission are not interested in this debate. It is easier and it seems more effective to invent injustices and engage in personal attacks.

In a written submission that I believe you have already received, I describe three claims that have been made about human rights commissions and demonstrate how they are either misleading or false. The claims are that the commission has a 100% conviction rate, that commission section 13 investigators have made racist postings on white supremacist websites, and in more general terms, that human rights commissions routinely make, and I quote, “crazy” decisions, the craziest of all being the case involving McDonald's. I'm happy to address these claims during the question period, although I think it would be better if that time were spent discussing the real problems with section 13 and the current process.

In my view, section 13 should be repealed. But whatever this committee decides, it is important that its decision be based on an assessment of the real costs and benefits of the different policy options. The unfair attacks on human rights commissions obscure the real issues and impede serious debate.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you very much.

We'll move on to Mr. Farber.

I think what we'll do is have the two together. You have ten minutes, but if you want to take less, we will have more time for questions.

[Bernie M. Farber, Chief Executive Officer, Canadian Jewish Congress]

We have ten minutes together? I will take two minutes.

First I want to thank you for inviting us to testify before this committee. The Canadian Jewish Congress has for the last 90 years represented the broadest cross-section of Canadian Jewry. We work to foster a Canada where Jews, as part of the multicultural fabric of this country, live and contribute to an environment of opportunity and mutual respect. We advocate on behalf of Canadian Jewry to advance those objectives, and we work in partnership with other Jewish federations and other ethnic communities across Canada.

In the Jewish tradition, we believe that the tongue has such awesome power that in fact it requires two gatekeepers, the teeth and the lips. It is recognized that words have meaning and that evil words can have, indeed, evil consequences. It is in this light that we welcome the opportunity to present our views this afternoon.

I would like to introduce our national president, Mark Freiman, of the Canadian Jewish Congress. He is an eminent legalist. He is recognized as an expert on constitutional law and human rights legislation. He has just completed acting as special counsel on the Air India disaster, and most pertinent to this particular committee, Mark Freiman was special counsel to the Canadian Human Rights Commission on the Ernst Zundel case, which was in fact the first successful proceeding under section 13 dealing with hate on the Internet.

I'd like to pass the rest of our time to Mr. Freiman in order for him to present the views of the Canadian Jewish Congress.

[Mark Freiman, President, Canadian Jewish Congress]

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.

[The Chair, Conservative, Ed Fast]

Thank you very much.

We'll now move to questions.

Mr. Murphy, seven minutes.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you.

I want to thank the witnesses for their testimony.

I want to get right to Mr. Freiman's and Mr. Farber's comments, which we all agree with, that words can do harm.

Mr. Freiman, you wrote a review of the book Shakedown.

[Mark Freiman]

Yes.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

It was published--not in Maclean's. In that article you gave some credence to some of his arguments on procedure, on investigations. I said before that I don't want to spend time talking about evidentiary issues. But the premise....

I think why Mr. Levant is compelling is that he becomes a bit of a poster boy for the idea that “Look, I'm a member of a minority, but I can defend myself. These are different times. We are a more complex society. The atrocities we know happened in times past cannot happen again, because we're in a flourishing democratic society.” Who wouldn't argue that Ezra Levant could defend himself verbally? Of course he can.

I'm asking both you and Mr. Farber if Mr. Levant is naive in this concept. Was it all that long ago that in the demonization of groups, people like Mr. Levant were not protected, no matter how brilliant they were?

Finally, to make it fit into the modern-day world, would a legislative framework like section 13, or any sort of tool that a government in Rwanda or Bosnia might have had before the demonization took place, prevent wide-scale genocide?

[Mark Freiman]

Let me start with the last first. Of course it wouldn't have. If there were other social forces tending toward it, then no well-meaning legislation could have prevented that.

On the other hand, if you look at Europe in the 1930s, there is a very good case to be made that the consistent and incessant demonization of the Jewish people led to a moral anesthesia among the population of a number of countries that allowed otherwise intelligent westernized people to stand by and to look aside as the most horrid acts were perpetrated by a very resolute racist regime.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Then is Mr. Levant naive?

[Mark Freiman]

Mr. Levant is naive. Mr. Levant believes that the advances in equality in the 1950s and the 1960s are the end of history and no prejudice is now possible, no discrimination is now possible. He is sadly mistaken.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Freiman, I hope you have your freedom of speech insurance all paid up after that comment.

[Mark Freiman]

Absolute privilege, Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Well, if you dare say it outside. Mr. Levant is a lawyer.

What I would say in seriousness, however, is there is this clash of rights then, isn't there, between the ultimate unfettered freedom of speech on one end.... And that's not even the characterization that was put to us; there is no unfettered right. There are the laws of libel, slander, defamation. There are the Criminal Code provisions. And then there is this right that an individual has to be protected from demonization.

Where's the balance as it's struck now? With the improvements that you've suggested, would it be struck with accepting the report from Madam Lynch's commission?

[Mark Freiman]

I think the improvements would help the balance.

I would just like to comment that in our constitutional system, freedom of expression always takes place at the balancing level. Our courts have decided that everything that expresses meaning is in fact expression for purposes of paragraph 2(b). There's been a lot of discussion, because that means lap dancing is expression. It means that pornography is expression. In the United States they don't do that. They decide what is expression and what isn't expression, give absolute protection to what is expression, and give no protection to what isn't.

What we say is yes, you now have expressive freedom. But let's look at section 1. How far can you take that expressive freedom before it becomes harmful? That is the balance that we do. It's a balance that we have some of the finest minds in the Supreme Court of Canada to help supervise. I do believe the changes and the improvements would help to maintain proper balance.

[Bernie M. Farber]

I would like to add one small piece to this. I don't want us to forget that it was only 60 to 65 years ago that one of the worst mass genocides in modern history took place—the murder of six million Jewish men, women, and children. There are people alive today who still suffer because of that. The thought that there are people out there who would continue to promote these kinds of hateful acts is incredible to me. Two or three days ago, only ten miles from this very chamber, at the Jewish Memorial Gardens in Ottawa, there was an invasion of our sacred burial space. Swastikas and horrible racist and anti-Semitic terms were scrawled on Jewish headstones. This was on the same weekend that I was coming to Ottawa to attend an unveiling of one of my family members. The impact that this had on our community, I can't even begin to tell you. Is this something that we want to allow to continue to happen? It is this balance that we have to consider, and I would like you to keep this in mind.

I have pictures of this desecration, and I'll pass them along, with the permission of the chair.

[The Chair, Conservative, Ed Fast]

The clerk will pick up the pictures from you.

Thank you.

Monsieur Lemay.

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

Thank you, Mr. Chair.

I have listened carefully to the remarks made by Mr. Moon and by Mr. Freiman and Mr. Farber. Thank you for being here, too.

If I understand correctly, Mr. Freiman, and correct me if I am wrong, you do not see any point in repealing section 13. However, you say that it needs to be clarified. That is the subject I would most like to hear your thoughts on, because at the moment section 13 seems fairly clear to me, in light of the Supreme Court's decision in Taylor, which reiterated what the Human Rights Tribunal said in Nealy v. Johnston. We also have section 319 of the Criminal Code, which seems to provide parameters.

I am wondering, and I would like to hear your thoughts on this. Perhaps Mr. Moon could also give his opinion. How do you think section 13 could be clarified, since it seems to be fairly clear at this point?

[Mark Freiman]

I think I can correct the misimpression. I agree with you that subsection 13(1) is clear as it stands. It does not need clarification. If it were to be clarified, the only clarification I could see would be using the exact words that Justice Dickson used in the Taylor case to explain what hatred means. The improvements I was speaking about are administrative improvements.

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

Excuse me, Mr. Freiman. Do you really think it is necessary to include what Justice Dickson said in section 13? That is a precedent. There maybe isn't any need to include it.

[Mark Freiman]

I agree that it's not necessary. If someone wanted to put it there, it would not bother me, but it would be very inelegant as legislative drafting. The improvements that are necessary are procedural and administrative in nature. They would give the commission more of a gatekeeper function. They would allow it to dismiss, without investigation, complaints that are clearly frivolous and without merit. This would liberate the commission from a large portion of its workload and would allow it to concentrate on cases of true merit. It would liberate respondents, both emotionally and financially, from the burden of having to deal with frivolous complaints. I believe there is room for specialization. A specialist tribunal could be created to deal with section 13 complaints within the human rights tribunal, just as in the Federal Court they have created specialist tribunals to deal with matters of national security. This would be helpful. Encouraging staff at the commission level, both investigators and counsel, to stay in their job for a while rather than to rotate out would be extremely helpful, because of the sensitivity to task and the amount of training that is necessary. Those are the kinds of improvements that I had in mind.

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

Mr. Moon, do you share my opinion, which now also seems to be Mr. Freiman's opinion?

[Prof. Richard Moon]

As you may know, in my report, as an alternative, I recommended a series of amendments to section 13, the process related to it. In my view, however, none of those is adequate to correct what I think is the more basic problem with the overall system, and I hold on to the view that the more appropriate response is repeal of section 13.

Certainly the changes that I think might improve section 13--again, without in my mind being adequate--include things that would cause it to more closely resemble a criminal procedure, including an intention requirement. I have enormous difficulty with the absence of any sort of intention requirement, given the extreme character of the expression it's focused on, and at the same time we have no way and no decision-maker who purports to measure the actual impact of the expression at issue. In the end, the focus is on the character of the expression, and you'll find the decision-makers invariably attribute an intention, understand it as carrying an intention over some time, which is in no way surprising, given the extreme character.

What I do agree with is that at the very end of the process, if you look at the decisions that have been reached by the tribunal in which they have found a breach of section 13, we are talking about extreme expression, I don't think there's any question. It is really everything else that occurs prior to that end point that, for me, is the difficulty.

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

Right, thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Comartin. You have seven minutes.