Justice Committee on Nov. 18th, 2009

[Rob Nicholson, Conservative, Niagara Falls, ON]

--the prohibition against these things, I think these are all steps in the right direction.

I appreciate.... I suppose that if I don't get your support on mandatory prison terms for people who traffic in children, I have a feeling that I'm going to have problems getting your support on these--

[Richard Nadeau, Bloc, Gatineau, QC]

Minister—

[Rob Nicholson, Conservative, Niagara Falls, ON]

--but I understand where you're coming from, Monsieur Nadeau.

[Richard Nadeau, Bloc, Gatineau, QC]

Sir, you can always change the subject and discuss a free trade agreement with Colombia. We could talk about doing business with criminals in other states. This doesn't exactly make you look tough on crime. But I see that you're an expert in changing the subject.

Why not impose a minimum sentence of four or five years? How can a two-year sentence have a deterrent effect? That's what I would like you to explain to me.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Would you support a four-year minimum, Monsieur Nadeau? I mean, you know, I think we should all be--

[Richard Nadeau, Bloc, Gatineau, QC]

Explain to me the logic behind a two-year minimum sentence.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Here's what I think. We should all be honest. If we had a four-minute minimum, you'd probably oppose that, and that's fine. I understand where you're coming from, which is that right across the board when we bring in these mandatory prison terms, no matter what the bill is—I gave you a good example—you're against it. That's fair enough.

As for what we're trying to do, we have an obligation, as members of the House of Commons and the Senate, to give guidance to the courts. I've had members ask me, back on one of those 35 legislative committees that I was involved with in the 1980s and the 1990s, “Why are you only putting a five-year maximum?” Make it 10 years for the judge, they say. I'd say, look, the five-year maximum fits in with the type of crime that we are doing this on.

We also do it on minimums. I'm sure you probably would be against having a life sentence as the minimum for people who commit murder. You'd say, “Well, it could be some other sentence”. Well, they're there for a reason: to make sure that there are serious consequences for a certain type of activity.

If you commit murder, yes, you're looking at some very serious minimums. It's called “life” and you're looking at 25 years without parole. Again, that's not up for debate here, nor is the free trade agreement with Colombia, as you pointed out.

But I think this is a reasonable response to that. I am willing to believe that if you talk to your constituents and to the people in the law enforcement agencies, they'll say, “Yes, the Conservatives have it right”. Getting tough on crime and putting in these provisions are steps in the right direction.

[The Chair, Conservative, Ed Fast]

Thank you.

Before we go on, I've heard a telephone go off a number of times here. Whoever has it on ring, please put it on vibrate or shut it off. Thank you.

Mr. Woodworth, you have five minutes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

Mr. Minister, thank you very much for coming here today and expressing yourself in such an articulate manner.

Just by way of a preliminary, I want to say that I have no doubt, Mr. Minister, that Canadians all across the country and Quebeckers know very well that when we're speaking about fraud, simple easy sentences can sometimes just be the cost of doing business. So I think they will support the idea of a mandatory minimum, which will be much more effective than just the cost of doing business.

Mr. Minister, I also want to say that when you were speaking to Mr. Petit earlier, you were commending him on his concern for victims, and over and over at this committee we have seen your special concern to address the needs of victims of crime. I think you articulate that very well, and people all across Canada thank you for that.

Now, once a fraudster is convicted and before he or she is sentenced, of course, the judge always takes into consideration aggravating and mitigating factors. I have victims in mind too. I'm thinking of a client I had once. She was widowed in middle age. She had to finish raising her children on her own, and within a few years of her husband's death she was cheated out of hundreds of thousands of dollars, in effect her life savings. She had to go back to work and can't enjoy the retirement she was looking forward to. We've also heard evidence at this committee and other proceedings on the problems title fraud creates.

Mr. Minister, I know one of the provisions in Bill C-52 will add certain aggravating factors for fraud offences, and I would be grateful to hear from you how these new provisions regarding aggravating factors will help victims of fraud like those.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think they help in a number of ways.

And thank you for your kind comments, Mr. Woodworth, and thank you for all you do in contributing to this committee and with your colleagues. I find your comments and questions very constructive and very helpful, and thank you for all you do to get these legislative initiatives passed.

With respect to the aggravating factors we've put in, I like how they are specific to the individual. I think I mentioned to Mr. Comartin that it does make a difference: if an individual was worth $100 million and lost $2 million, of course that has less impact on him or her than if the $1 million or $2 million represented everything the individual had. So the fact that this is now going to be before the court is very important, in my opinion.

One of the other provisions as well, since you've raised it, is the whole question that one of the aggravating factors we take into consideration is whether the individual concealed or destroyed the documents, because victims want to be able to access those documents. They want to be able to get at that material. And so what we're saying is that we want that to be taken into consideration, because that makes it harder for victims. If you start destroying the documents, then you're looking at possibly a longer sentence than you might otherwise get, and I think that's entirely appropriate. Why? Because we want to make it as easy as possible for victims to have their cases heard.

So again, it's very specific and very sympathetic to the plight the victims find themselves in, so these are more reasons why I hope this bill commends itself to all members of the House and is passed as quickly as possible.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

Do I have time for another question?

Mr. Minister, one of the other changes this bill introduces is regarding community impact statements. You know, I'm sure, that my community of Kitchener is a very innovative place, and it wouldn't surprise me if we originated community impact statements, but I wonder if you could explain for us the reasoning behind codifying this. And how will community impact statements differ from victim impact statements?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Actually, that's a very good question. Generally when we talk about victims, we're talking about the individual who has suffered a personal loss, but it's not just that individual in many cases who suffers the loss. Sometimes they're part of a larger community that is bound together by one reason or another. I very much like the idea of codifying, for the first time, the idea that someone can come on behalf of the group or the community and tell the court what impact the convicted individual has had on that particular community.

In my discussions with Mr. Comartin we talked about the fact that a judge can allow these things. There have been community impact statements. Whether they go towards how they affect the sentence is another matter, but making sure that this is codified and a part of the sentencing regime when an individual is going to be sentenced I think is very important. I really believe it's a step forward. I believe strongly in this, as I do the prohibition provisions. The idea that judges can now say that you'll never be able to handle anybody's money on a professional or voluntary basis I think is a huge step forward, which should commend this bill to all members of this committee and to the House. But this goes along with the ability of people to come forward and say that this is what this character has done to the community, this is how he has devastated us; this is how he has made victims of all of us. I think this is really important to be part of that. They're provisions that I particularly like.

As you and other colleagues have said, these are the complaints, these are the challenges that have been brought to our attention by victims who want to see changes in that area. So thank you again for that question.

[The Chair, Conservative, Ed Fast]

Thank you.

Minister, thank you for appearing before us today.

We're going to suspend for three minutes to allow the minister and counsel to exit, and then we'll reconvene.

[The Chair, Conservative, Ed Fast]

I'll reconvene the meeting.

We're pleased to have with us Shirish Chotalia. She is the most recent appointee as chairperson of the Canadian Human Rights Tribunal. With her are Greg Miller, as well as Gregory Smith.

I believe, Mr. Smith, you are the executive director, and Mr. Miller, you're counsel with the tribunal, correct?

Welcome to all three of you.

I think you've been told the process. You have ten minutes to introduce yourself, and then we'll open the floor to questions.

I just want to remind the committee that the purpose of Ms. Chotalia's appearance today is to allow this committee to examine, under Standing Orders 32(6) and 111(2), the qualifications and competence of the appointee to perform the duties of the post to which she has been appointed.

So please proceed.

[Shirish P. Chotalia, Chairperson, Canadian Human Rights Tribunal]

Thank you, Mr. Chair.

Good day, ladies and gentlemen.

I am deeply humbled to appear before such a distinguished group of individuals who have served Canadian society in so many important different ways. I had an opportunity to review your biographies. It is both an honour and a privilege for me to serve as Chairperson of the Canadian Human Rights Tribunal and to discuss with you my qualifications for this position.

With respect to the tribunal, it is the adjudicative body that hears complaints of discrimination further to the Canadian Human Rights Act. The tribunal, as you're all aware, is governed by laws written by Parliament and that are interpreted by the courts. The Canadian Human Rights Commission investigates complaints, educates the public about human rights, and advocates positions regarding current human rights issues. The commission, as you're aware, is a party that sometimes appears before the tribunal.

In terms of my qualifications, the Canadian Human Rights Act requires the chair to have been a member of the bar of a province for at least ten years. In addition, all members of the tribunal must demonstrate sensitivity, expertise, and an interest in human rights.

I've submitted to the committee my detailed curriculum vitae in English and in French. I will elaborate in terms of some personal background, which may be of interest to you, that you can't read on the paper.

I was born in Addis Ababa, Ethiopia. In 1960 my father, who had obtained his LL.B., B.Sc., and B.Ed. from Bombay University, was searching for an articling position. However, he seized an opportunity to teach in Ethiopia and moved to Addis Ababa, where I was born. Both my mother and father taught there.

In Addis Ababa they saw an ad in the local newspaper for openings in Alberta for teachers. So my parents mailed their résumés to the address. In India they had, of course, studied that Alberta was the breadbasket of Canada. Now, I know that some will disagree, but that's what they had studied. Then, somewhat surprisingly, they received a telegram, in 1964, asking if they could begin immediately. So in October 1964, they boarded an airplane and flew to Edmonton. They settled in a small French-Canadian town, McLennan, 438 kilometres northwest of Edmonton.

We moved to Edmonton when I was four, because my father, at the age of 39, redid his entire law degree at the University of Alberta.

An interesting event occurred in grade 4. I was walking to school and passed in front of the newly opened Alberta Human Rights Commission office in Edmonton. I still recall walking down the street and thinking that when I grew up, I'd like to be a lawyer and work for them, which is odd, because people usually don't think of or choose a law career so early in life.

The office had just been opened, and Peter Lougheed had been newly elected in 1971. His first act of government was to table two bills: first, the Alberta Bill of Rights; and second, the Individual's Rights Protection Act, Alberta's human rights act. These two bills were his flagship legislation.

In terms of my education,

I completed my education in the Catholic school system. I graduated with a Bachelor of Laws degree from the University of Alberta. I did my internship and was called to the Bar in 1987. I began practising law with my father at the firm of Pundit & Chotalia. At the same time, I enrolled in a part-time Master of Laws program at the University of Alberta and obtained my Master of Laws in 1991. For my Master's thesis, I drafted a privacy protection bill inspired by Alberta's human rights system.

In the interim, in 1989 I was appointed by the Minister of Labour as a commissioner to the Alberta Human Rights Commission. During this work, I met with aboriginal Albertans and gained an understanding of their concerns.

After this appointment, in 1994 I wrote a legal annotation of human rights law, which is the Annotated Canadian Human Rights Act. I updated this text annually for a number of years. In 1996 I wrote a larger work, called Human rights law in Canada, which included the provincial human rights laws of Alberta, B.C., Quebec, and Ontario.

Meanwhile, in terms of the thrust of my law practice, for the first five years I had a general practice, including extensive criminal law work. I then began to focus my practice in the areas of immigration and human rights litigation. I represented both complainants and respondents with issues of fairness and access to justice. For example, I assisted many live-in caregivers who were facing removal for circumstances beyond their control. I brought a constitutional challenge to legislation for a woman who had contracted breast cancer in Canada and was found to be medically inadmissible. I was also involved in major litigation against the Government of the Northwest Territories for a male client who was falsely accused of sexual harassment. The suit was for conspiracy and defamation.

I was counsel for the Alberta Civil Liberties Association in Grant v. Attorney General of Canada, both before the Federal Court Trial Division and the Federal Court of Appeal. The court ruled that not only was the RCMP within its rights to allow a Sikh officer to wear a turban, but was indeed under a duty to accommodate this religious practice.

Over the last number of years I represented a woman who alleged that she was denied the position of a surface rights administrator with an oil company because she was a woman. She also alleged that she was harassed and retaliated against for having filed a discrimination complaint with the Alberta Human Rights Commission. The Alberta Court of Appeal recently ruled in her favour.

Parenthetically, a few years after my Annotated Canadian Human Rights Act was released, I was appointed to the Canadian Human Rights Tribunal as a part-time member. During this tenure, I adjudicated on a variety of cases, including disability in the trucking and shipping industries.

Throughout my legal practice, I have worked toward ensuring that there is fair process for my clients, both complainants and respondents. Recently, in 2008, I was appointed, through an independent vetting committee, as special advocate to represent named persons facing allegations of terrorism. The requirements included expertise and knowledge in human rights law, immigration law, and security law. I had taught terrorism and the law, as well as human rights law, at the law faculty for a number of years at the University of Alberta.

Recently, in 2008, I served as a bencher of the Law Society of Alberta. I was elected by Alberta lawyers to administer the Legal Professions Act of Alberta, which governs lawyers, so we conducted and I sat on a number of disciplinary hearings, as well as competency hearings.

In short, I feel that I bring the qualifications and credentials necessary to serve as chairperson of the Canadian Human Rights Tribunal. I hope that I may draw on my experience as vice-chair of the Access to Justice Committee when I was a bencher of the Law Society of Alberta. I hope to search for ways to improve the efficiency of the hearing process to enable complainants and respondents to access justice in a timely fashion. Indeed, I am seeking to reach out to lawyers, law schools, and stakeholders in the process to develop strategies.

Thus, I look forward to serving Canadians to the best of my ability, and I'm delighted that you've asked me to come here.

I'm happy to answer any questions you may have for me.

[The Chair, Conservative, Ed Fast]

Thank you very much.

We'll open up with questions from Mr. Murphy. Seven minutes.

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

Thank you very much, Mr. Chair.

Thank you so much for coming today. We've all read with interest your curriculum vitae and listened to your statement here. We're all incredibly impressed with your credentials, your integrity, your honesty, and we're very pleased, obviously, to say statements in support—I think I speak for my colleagues when I say that—of your nomination.

One thing we've been doing as a committee, among many other things involving the minister's very busy agenda for us, is discussing perhaps even the future of the Canadian Human Rights Commission with respect to, in particular, hate crime complaints.

I do note in your very lengthy CV.... Your CV took a long time to read. None of us have that long a CV at all. Dominic's and mine, in particular, could be read in 20 seconds.

I did happen to notice, because it's of interest to this committee, that you were a member of a panel involving a complaint in 2003; in particular, the complaint involved Richard Warman, and the respondent was Fred Kyburz.

In that decision, on which you were a panel member, Mr. Kyburz did not appear or give any evidence. He was duly served but didn't. His website, which was put up and introduced into evidence, known as the Patriots on Guard website, was the issue. That site had many statements on it that were very detrimental to the Jewish community, linking them to issues of child pornography, and bleeding Russia dry, and I will not countenance any of the other comments being made, but let's say there were six pages of the evidence upon which you, as a panel member, decided.

What I have for you is a question that is pretty simple. The panel got together and wrote a decision accepting the complaint as one based in hate and used these words to summarize it. I just want to ask you, if I could read these words, whether you agree with their content. They are as follows:

Article 19 of the Universal Declaration of Human Rights provides that such right "... includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media ..."

That goes to the right of free speech.

While the right to hold and express one's opinions is a cornerstone of a free and democratic society, such a right is not unlimited. In some situations, the protection of society mandates limits on what individuals may say. For this reason, it is unlawful to shout "Fire!" in a crowded theatre when no fire exists, to phone in a bomb threat, or to threaten to kill another person.

The tribunal went on then to quote the Taylor case, with which we're very familiar, and the Supreme Court of Canada's decision. The tribunal, of which you were a part, concluded:

The Court concluded that while section 13 infringed the right to freedom of opinion and expression, this infringement was justified in light of international commitments to eradicate hate propaganda, and Canada's commitment to the values of equality and multiculturalism. Having found that Fred Kyburz did communicate, repeatedly, by means of the facilities of a telecommunications undertaking within the legislative authority of Parliament, matter that is likely to expose people of the Jewish faith to hatred or contempt, Mr. Warman's section 13 complaint is substantiated.

The simple question is, were you a part of that panel? And were you involved in the expression of this opinion, in writing, and do you agree with its content?

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

A point of order.

My impression is that the rules of what we're about today have to do with inquiring as to the witness's capacity or ability and that questions should relate directly to the witness's ability.

I'm a little concerned if we start down the path of asking this witness to express views about particular cases, or even about particular laws or statutes that she might have had to apply in previous proceedings. I'm new around the table, so forgive me if I'm wrong, but it seems to me that is not what's contemplated by the rules for this inquiry and that we should be focusing not on the witness's opinions about legal matters but rather on her ability and training to do the job.

That's my point of order.

[The Chair, Conservative, Ed Fast]

You've heard the point of order raised. Is there any further discussion on it?

Mr. Murphy.

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

Certainly, I'll speak to that.

Obviously my quarrel is not at all, as I mentioned in my preamble, with the qualifications of the candidate. She put before us a very replete curriculum vitae that included this case. I took the trouble to read the case. The case is a matter of record now; it's not a matter of future opinion. It doesn't tie her to any future decision-making. That would be improper. It's the American custom, which I think sometimes the Conservative side wants to take us toward. It's not the Canadian custom to try to tie people into what their future opinions will be. But because it is a CV vetting, I wanted to know the extent to which she was involved in this decision. She was a member of the tribunal, but I don't know if she actually penned the words. I don't know if she remembers the decision. Heaven's, there's so much in her CV that maybe she doesn't even remember the case. But it is pretty current to what we're doing as a committee. It's something that an individual Conservative member has made so important that he wants a full study of this very busy committee's time to take precedence over government legislation, so I think it's fairly relevant.

In closing, I would say that anybody with a CV like this one knows well or not whether she will wish to answer the question. I think she's very well counselled by her own abilities to decide whether she does want to and how she wants to answer this. I don't think she needs the protection of me or Mr. Woodworth to decide whether and how she wants to answer this.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

May I add to my point of order?

The member opposite has now suggested that the inquiry today should be about our other business and section 13 and the Human Rights Commission generally. I don't think this witness came here today to speak about any of that, so it strikes me that her opinions about that, if we want them, can be had on a day when we're convened and the orders require us to study that issue. Her past opinions can only be relevant to her future conduct. They certainly have no direct relevance to her abilities.

I don't know if we want this committee to go in the direction of asking appointees about their opinions, but I think, quite frankly, that would take us down a long and dangerous road. So I maintain two points of objection now.

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

Do I get to reply to that?

[The Chair, Conservative, Ed Fast]

Yes, you do.

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

Thank you, Mr. Chair.

The purpose of this hearing was to go through the curriculum vitae and ask questions that might be in it. If I was asking questions about something that wasn't in the CV, I might agree with my friend. The tautology--I got in trouble with the professor last time with that whole reasoning--is that you're not allowed to ask questions about what's in a resumé. Are we allowed to ask questions about what isn't in the résumé, like what her favourite hockey team is? Surely she has qualifications that are set out in her curriculum vitae, and I'm asking her about what her involvement was, if any, in a decision that I'm interested in as a member of this committee and a duly elected member of Parliament--elected by one of the narrowest margins the last time, but a duly elected member of Parliament.

[A voice]

Don't sell yourself short.