Thank you.
You've received our submission. This morning I'd like to provide a synopsis of CBA's concerns with Bill C-304 and reiterate our recommendations.
The CBA has a keen interest in and supports the work and operation of not only the Canadian Human Rights Commission and the tribunal but also human rights commissions and tribunals at the provincial and territorial level.
The CBA supports the inclusion of and retention of section 13 of the Canadian Human Rights Act. We support the values embodied in the Canadian Charter of Rights and Freedoms and in human rights legislation. While we support the right to freedom of expression, it is important to note that no freedom is absolute. All rights and freedoms are subject to limitation by countervailing rights.
The right to be free from discrimination based on race, religion, or other characteristics, and to be treated with dignity, is a countervailing right that can be a reasonable limit to the right to freedom of expression. It is a fundamental value in our society, arguably as fundamental as the value of free expression. It is also a value that is consistent with the spirit of the charter as expressed in section 15, the equality rights provisions, and section 27, dealing with Canadian multiculturalism.
Now is not the time to repeal section 13. The number of hate messages and communications has not diminished over the years. The advent of the Internet, including e-mail, and social media such as Facebook and Twitter have made it possible to spread hate messages instantly and to a worldwide audience.
Recently the Honourable Justice Rosalie Abella of the Supreme Court of Canada publicly lamented that we haven't learned the most important lesson, which is to try to prevent the abuses from happening in the first place.
It is submitted that atrocities have occurred where a culture of prejudice and discrimination was permitted to grow—for example, the Tutsis in Rwanda, the Falun Gong in China. Such a culture is created where the dissemination of hateful and intolerant views is allowed unchecked.
In our submission we have provided an example of the type of anti-Semitic hate messages that are spread today via the Internet but that were successfully dealt with by the tribunal. By voting to remove section 13 from the act, parliamentarians are in effect voting to allow the proliferation of this type of egregious speech in Canada and beyond via the Internet.
This seems rather ironic, given that at the same time the government is establishing an office of religious freedom designed to promote and protect religious freedom and minorities abroad, to oppose intolerance, and to promote Canadian values of pluralism and tolerance. These are the same values that section 13 is designed to protect. We believe the protection of religious freedom and minorities begins here at home.
Section 13 applies to conduct that falls short of criminal behaviour but that nevertheless poses harm to vulnerable target groups. Without section 13, the only tool the state will have to deal with this type of discrimination is the Criminal Code.
In order to successfully prosecute an individual under subsection 319(1) of the Criminal Code, the crown must prove, on the more onerous criminal evidentiary standard of “beyond a reasonable doubt”, that the accused publicly communicated statements and intended to incite hatred against an identifiable group to such a degree that they're likely to lead to a breach of the peace.
For example, in the Ahenakew case, despite making comments about the Jews, including that they were a disease, he was ultimately acquitted, since the elements of the offence could not be proven at the criminal standard. If only the Criminal Code tool remains, it is foreseeable that hate messages such as the examples in our submission will proliferate and spread unchecked in Canada and beyond its borders.
It's interesting to note that the United Nations Human Rights Committee has upheld section 13 against allegations that it violated freedom of expression guaranteed by article 19 of the International Covenant on Civil and Political Rights. In fact, article 20 of the international covenant prohibits any advocacy of religious or racial hatred that would incite discrimination. This suggests that retaining section 13 is necessary if Canada is to meet its obligations under the covenant.
While the CBA recommends the retention of section 13 in the act, it agrees with the repeal of the penalty provision in paragraph 54(1)(c) and its related provision in subsection 54(1.1), while retaining the provisions in paragraphs 54(1)(a) and (b). Penalty provisions are not consistent with the core remedial functions of human rights legislation, and are contrary to the underlying philosophy of such legislation, which is the eradication of discrimination, the encouragement of equality, and fostering tolerance.
By repealing these two provisions, Parliament will respond to the need to protect the right to freedom of expression and will underscore that remedies for violations of section 13 are purely civil. The repeal of paragraph 54(1)(c) and subsection 54(1.1) would remove any basis for concerns about the constitutionality of section 13.
Those are my brief comments. Thank you.