Justice Committee on April 24th, 2012

[Mark Toews]

Well, I will simply respond to that in this way. The purpose of this act is to help prevent the discriminations, to help encourage equality and to foster tolerance. There is an educative element to the Human Rights Commission, to the Human Rights Tribunal, to help change these kinds of behaviours. The cease-and-desist order and to correct the problems is within the mandate of the Human Rights Act, and that is what needs to be encouraged and supported.

[Kyle Seeback, Conservative, Brampton West, ON]

If I have any time left, if Mr. Rathgeber would like it, he seemed to be going down a great path....

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you. Sure.

Ms. Mahoney, you indicated in your opening comments that there were 5,000 hate speech sites. Is that in Canada, or is that worldwide?

[Prof. Kathleen Mahoney]

Well, it doesn't matter where the sites are. They can be anywhere. When the sites were counted a few years ago, that was the number that came up. My guess would be that they were originating in Canada as well as elsewhere.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Since you're such a strong advocate of it, why has section 13 been so ineffective in dealing with this plethora of hate speech sites on the Internet? Or is it perhaps because the powers that be don't think those sites are actually hateful but merely offensive or politically incorrect, which is quite different from hateful?

[Prof. Kathleen Mahoney]

I disagree.

First of all, to these last two questioners, I think it's important to understand the purpose of law, which is a bigger question. Laws dictate to the country as well as the rest of the world what any particular country's values are. Oftentimes the law doesn't obliterate the crime.

For example, we have a crime against murder. There are murders committed in Canada every day, but it's very important to have our values stated within the Criminal Code that murder is a bad thing and we don't want it. So the hate speech provisions also speak to that.

What I would also add is if you're looking for data, section 13 has been used quite significantly since 9/11, since the amendments were made to include the notion that the Internet can be used to spread hatred. There was dual purpose there. It wasn't just to prevent the promotion of hatred against identifiable groups. It was also for national security reasons. A significant number of cases have been brought before the courts—some successful, some not—since that time, since those amendments. So I think it's wrong—

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

You're really not addressing my question, but thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you. We're over time.

Go ahead, Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

I'd like to start by focusing on potential tweaks to the legislation. We do have a “baby being thrown out with the bathwater” approach by the mover of this bill. I want to at least remain open-minded about what could be done to improve it. We already have a submission from the CBA that refers to section 54.1 and the penalty provision as being something that probably should go. That has a history, with others making that same recommendation. Let's leave that on the table for the moment.

I'd like to ask Mr. Freiman, in particular, a question. Mr. Freiman, you mentioned that effectively—and I'm not sure whether the point was that in practice this is the way it's gone or whether this has been read in jurisprudentially—the Dickson language in the Taylor decision about extreme hate has tended to be, or has been, where this provision has been focused. I'm wondering if that is an accepted jurisprudential reading into section 13. If it is or isn't, do you think it's worth considering adding the word “extreme” in front of “hatred” or “contempt”, or would that be a problem?

[Mark Freiman]

I don't think it would be a problem to add the words. It would not be a problem to be even more specific and explicit.

Chief Justice Dickson interpreted what the words mean and what they can be used to mean in order to sustain the constitutionality of the provision. He set a very high standard. Every time this legislation has come before a court for judicial review of a given decision, it has been that standard that has been invoked.

As I said, Professor Moon, who has his own views on these matters, has conceded that in practice, the cases brought by the Canadian Human Rights Commission before the Canadian Human Rights Tribunal have all been focused on this sort of extreme speech. It still is very helpful to make it explicit so that somebody reading the act will know how it's going to be interpreted as well.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

If I could, I'll quickly follow up with Ms. Mahoney. If you've heard what Mr. Freiman has said, would you concur, or would you have any cautions against adding that word “extreme” to the legislation?

[Prof. Kathleen Mahoney]

I'm not so sure that adding the word “extreme” would be particularly useful. What I think would be a better suggestion, frankly, is to look at how the courts have defined that and include those hallmarks of hatred in the legislation. They attempt to further clarify what hatred is. They are very clear. They're set out in the Lemire case and I think they're very helpful. What they do, in point form—they make five points—is present the characteristics of hate speech. I think those would be of much more useful guidance to tribunals and to courts looking at challenges to the legislation to put against the facts of the speech itself.

If I might add one other point on the notion that a penalty chills speech, I'm not exactly in favour of removing the penalty. I would draw your attention to the case of Hill and the Church of Scientology, which was a defamation case. The Supreme Court of Canada upheld a damage award of $800,000, notwithstanding the fact that the argument was made that this would chill speech. If you compare that penalty to the rather small penalties in the Canadian Human Rights Act that are designed to compensate the victim and to address the seriousness of the effects of hate speech, I don't think they're out of line.

[Craig Scott, NDP, Toronto—Danforth, ON]

I get that point. It is the case, for example, in defamation law that punitive damages are available, as they are in the rest of tort law. So that is something we're going to have to look at.

Back to Mr. Freiman, I have a quick question on “likely to expose.” I'm getting the sense that my colleagues are not necessarily understanding the human rights framework of the Human Rights Act. I wonder if there's anything you wanted to add on that language and why it shouldn't be viewed as being as problematic as it's being viewed.

[Mark Freiman]

“Likely to expose” is a way of defining what's being looked at. You have to characterize the speech. What is its tendency? What is its probable effect? We can't know the effect until after it's occurred. That's what's meant by “likely to expose”.

Given the speech, given an analysis of its nature, what are the probable consequences that speech will have? That's all the provision is referring to.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Mr. Jean.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Thank you, Mr. Chair.

I appreciate the opportunity to have another line of questioning with these witnesses. In particular, I'm interested to know whether or not Mr. Toews petitioned the members of the Canadian Bar Association to see what their position was on this particular section and legislation.

[Mark Toews]

In fairness, perhaps Ms. Hunter can assist me with this.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

I only have a few minutes.

[Mark Toews]

I appreciate that.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Yes or no is fine.

[Mark Toews]

It's not really a yes or no question.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

It's a yes or no question.

[Mark Toews]

No, it's not a yes or no question. There are certain sections that are involved with this, but perhaps Ms. Hunter can expand on that.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

As I said, did you survey your members to find out what their position was on this?

[Judy Hunter]

Can I answer that, please? I'm a staff lawyer with the Canadian Bar Association.