Justice Committee on April 24th, 2012

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order, this being meeting 31 of the Standing Committee on Justice and Human Rights.

Pursuant to the order of reference of Wednesday, February 15, 2012, we are dealing with Bill C-304, an act to amend the Canadian Human Rights Act on protecting freedom. This morning we have the sponsor of the bill, Mr. Storseth, the MP for Westlock—St. Paul.

If you have an opening address, please give it to us. You have up to ten minutes. I'll let you know when you reach nine minutes, and we'll cut you off at ten.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you very much, Mr. Chair. I'll endeavour to do my best not to be cut off.

Mr. Chair, to begin, I would like to thank you and the committee for the opportunity to discuss my private member's bill, Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom).

This is an issue that has been near and dear to my heart for a number of years. I am thankful to have received support from a large number of my colleagues, numerous media outlets, and most importantly, Canadians, on this important and often overlooked issue.

Bill C-304 will help protect and enhance our most fundamental freedom, freedom of expression. Without freedom of expression, one must ask oneself what value freedom of religion or freedom of assembly holds. Freedom of expression is truly the bedrock upon which all other freedoms are built, and section 13 of the Canadian Human Rights Act directly erodes this fundamental freedom.

Section 13 of the Canadian Human Rights Act has been a contentious topic for a number of years. It has been widely acknowledged that it impedes upon paragraph 2(b) of the Charter of Rights and Freedoms, which states that every individual has the fundamental “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

This conflict between section 13 of the Canadian Human Rights Act and paragraph 2(b) of the charter was reaffirmed in 2008 by Professor Richard Moon, who was hand-picked by the Canadian Human Rights Commission to review the act. He stated on page 31 of his report that “the principal recommendation of this report is that section 13 be repealed so that the censorship of Internet hate speech is dealt with exclusively by the criminal law”. It was reaffirmed once again in 2009 by the Canadian Human Rights Tribunal itself, which found section 13 to be unconstitutional.

Over the past few months I have had many opportunities to attend a number of conferences and annual general meetings to discuss with Canadians across our country my private member's bill and the implications of repealing section 13. Most people are astounded when they hear that our fundamental freedoms can be overruled by a quasi-judicial body that feels that something you said was likely to have exposed another individual or group to hatred or contempt. Canadians find it difficult to believe that such a loosely written and vague law has the power to undermine the fundamental rights Canada so proudly bases its democracy upon and which men and women have given their lives defending.

While section 13 of the Canadian Human Rights Act may have been implemented with well-meaning intentions in an effort to combat discrimination and hate speech, its implications reach much further. It is this zone of ambiguity we should all be concerned about.

Section 13 states:

It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

I'd like to emphasize, Mr. Chair, “any matter that is likely to expose a person or persons to hatred”.

Subsection (2) goes on to extend this law to matters that are communicated by means of a computer or the Internet.

What this really means is that the Canadian Human Rights Commission and the Canadian Human Rights Tribunal only have to feel that you were likely to have offended someone. This is not a narrowly defined legal definition, which would be far more appropriate.

Under section 13 of the Canadian Human Rights Act, truth is not a defence. Intent is not a defence. You no longer have the right to due process, the right to a speedy trial, or the right to an attorney. It is alarming that, until recently, the Human Rights Tribunal had a 100% conviction rate, with 90% of defendants failing to obtain legal advice, because they simply could not afford it. At the same time, the legal costs of the plaintiffs are fully covered.

These are not the characteristics of an open and democratic society that promotes equality and fairness. These provisions are provided to any other individual in any other court in Canada under the Criminal Code. This is a clear depiction of censorship overstepping its bounds through an overzealous bureaucracy.

This is one of the reasons I have introduced Bill C-304, protecting freedom. It is an effort to reconstruct freedom of expression as a cornerstone of our great country. To achieve this, complaints must be directed to a fair, open, and transparent judicial system, not a broken system that prides itself on operating behind closed doors.

By repealing section 13 of the Canadian Human Rights Act, Canadians will be given back the right to be offended and individuals will have recourse to hate speech through the Criminal Code of Canada. The continued use of the Criminal Code to address hate messaging will ensure that all individuals are protected from threatening discriminatory acts, while preserving the fundamental right to freedom of expression in our country. It gives back the right to a fair, open, and transparent trial. It gives back the right to face your accuser. It gives back the right to allowable defences, such as truth or intent. It even gives back the right to recover costs should the claim be dismissed.

The Criminal Code has been tried and tested. It is ingrained with a system of checks and balances, a system in which society has entrusted its fundamental freedoms and has seen fit to enforce the rule of law in our country.

The solution here is not to take a band-aid approach and address the superficial inadequacies of section 13. The fundamental deficiencies and broken structure will still be there. These issues cannot simply be fixed through amendments, as section 13 would still be imposed under the discretion of a quasi-judicial system, and the fundamental principles that guide the implementation of section 13 would continue to create a two-tiered system of hate speech, which I find simply not appropriate.

I believe the solution is to use the laws we already have and to provide authorities with the tools and support necessary. This step will ensure the successful transition in which true democracy and freedom of speech can thrive so that society can continue to grow and adapt peacefully.

It is through freedom of speech and expression that we change governments—or not, in the case of Alberta last night—not through riots and revolts. It is how we test societal norms and successfully develop. It is through freedom of expression that we have shaped and will continue to shape our great nation.

I would like to challenge this committee to look beyond the intent of section 13 of the Canadian Human Rights Act and truly examine its structure and implications, and consider what we, as a free and democratic society, are willing to give up.

Thank you for your time, and I look forward to your comments and questions. God bless.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Storseth. That was only six minutes, so thank you for your time.

I'd like to welcome two new members to our committee, Mr. Scott and Mr. Sandhu. We have a couple of other people filling in, but some change in the structure is good, I guess.

The NDP will go first. Mr. Scott.

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

Thank you so much, Mr. Storseth. I've also read your speech in the House; it's very informative.

I'm wondering if I could start with one general question, and then a couple of specific questions on section 54 of the Human Rights Act.

First, do you support or do you believe in non-criminal libel and defamation law as a valid part of our legal system, keeping in mind that it protects a dignitary interest in reputation? If so, if you do support it, why exactly is section 13 any different? Because we're also dealing with the limitation on freedom of expression to protect a dignitary interest. What's so different? Freedom of expression is being limited in the case of libel and defamation law, and it would also be here. What's different, in your mind?

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you very much for the question, Mr. Scott, and welcome to the committee.

I believe that section 13, as I said, directly infringes and erodes significantly on freedom of expression in our country. I believe not only that the implementation of section 13 has been flawed, but also there's the overarching approach to limiting our freedom of expression, as section 13 does.

Really the argument isn't whether or not section 13 infringes upon paragraph 2(b) of the charter. The opposition discussion has primarily been based around burden of proof and the aspect of to what extent it should be limited. But the fact remains—and I haven't seen it contested through any of the debate in the House or over the last several years—that section 13 provides a significant infringement upon the freedom of expression in our country. I believe these matters are serious matters and should be dealt with under the Criminal Code of Canada.

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

Thank you very much. I'll leave that just for the moment.

I understand section 54 would also be repealed in your proposed legislation, and section 54 includes the remedial sections. On the Lemire decision in 2009 that you referenced from the Canadian Human Rights Tribunal, I may have misread, but it seems as if it focuses on the fact of a penalty being among the possible remedies as being the problem, not so much section 13 itself. Am I correct in that reading? If so, would you be open to an amendment to the act whereby the penalty provision gets removed, but not the actual section 13?

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

First, I would like to thank the opposition for considering amendments. I believe that means you're generally relooking at the issue of my legislation, and I hope you're looking to find ways in which we can continue to cooperate together and work toward passing this legislation as quickly as possible and in as uncontentious a manner as possible. I see this not as an issue of left wing or right wing; I see this as an issue of importance to Canadians across the country, on both sides of the political spectrum.

I was heartened by the fact that an opposition member did vote for this legislation on second reading, and I'm hoping that moving forward we'll be able to sit down collaboratively and find a way forward, so we can have more support.

As I mentioned at the beginning of my speech in the House, I am open to certain amendments, as long as they are provided in the spirit of the legislation, which is the repealing of these sections. I do try to stay away from specific cases when we're talking about my bill on protecting freedom. But you are correct in what you refer to, the fact that the Canadian Human Rights Tribunal itself did rule, I believe in at least one instance, that section 13 is unconstitutional, which is also in line with the commission's own Professor Richard Moon, who put out a report that stated on page 31 that the primary recommendation is that section 13 should be repealed and these types of offences should be investigated under the Criminal Code of Canada.

[The Chair, Conservative, Dave MacKenzie]

Thank you. We've used up the time.

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

We were talking about the Lemire case. Mr. Scott referred to it. In that case the Human Rights Commission itself ruled that section 13 was unconstitutional.

I know you've had a fair amount of support throughout the country with regard to the striking of section 13. Could you comment on what groups have supported you?

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you very much, Mr. Goguen.

I'll go over a little bit of the chronology of how my private member's bill has unfolded. This bill, I have to admit, started right here in the justice committee in 2007, when the member for St. Catharines actually put forward a study of the effects of repealing section 13. That study unfortunately never came to fruition because of the nature of minority Parliaments.

In 2008, when I had the opportunity to sit on this justice committee—and I can say the talent has only increased since I have been here—I also put forward a motion to study it. The committee, even in a minority circumstance, admitted that there were significant problems with section 13. Once again, in a minority context, it never really went any further than that.

It would be overwhelming to talk about all of the groups that have endorsed this type of legislation since pre-2008 when I first put it forward in this committee, but I am heartened to tell you that Bill C-304, since I have put it forward on the order paper, did receive the support of the Canadian Jewish Congress and the Muslim Canadian Congress. I also received the support of PEN Canada and the editorial support of the National Post and even the Toronto Star.

The point is that there has been wide-ranging support. It hasn't been from the left or the right of the political spectrum. It hasn't been about blue or orange. It has really been about doing away with a piece of legislation that Canadians.... Education on what this legislation actually does and how it has been implemented for 40-plus years I feel has really appalled Canadians.

Most importantly, I would say that the most important support I have received has been from Canadians across this country. I have been from coast to coast to coast in discussing section 13 and what problems I feel there are with it. When you address it with Canadians and sit down and actually tell them what's happening, they're absolutely appalled. It really doesn't matter whether you're in a forum that's predominantly one political party or another; the sentiment I have received has been the same.

In my own riding I did a poll on this. Interestingly enough, repealing section 13 was the only issue more popular in my riding than the repeal of the long-gun registry. I think that's quite interesting, and goes to show.... There was 87% support. I don't get 87% of the vote in my riding—almost, but not quite. That goes to show me that this legislation I believe transcends political boundaries. As such, I'm hoping that the next time this comes forward we can work cooperatively and get more support from the opposition on this as well.

[The Chair, Conservative, Dave MacKenzie]

You have one minute.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

So you appear to have had quite an open discussion with a number of Canadians, and it would appear that the average Canadian is in your court. I wonder if you could highlight the reasons why you think they've bought into your idea on this.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

That's an excellent question. I thank you for that.

First of all, I would suggest that the idea of freedom of expression is one that all Canadians hold very dear. It is something that is tremendously important to us as a society. It gives us the ability to continue to grow and push societal norms so that we can continue to grow as a country through a peaceful democratic process. I believe that's the cornerstone of our country.

Another aspect is the practical problems with the implementation of section 13 over a number of years and also the fact that it does eliminate some of the natural rights that Canadians hold near and dear. One of the interesting parts of this is that when you talk to an individual and you tell them that the right to an attorney can be taken away from you, they actually don't believe it. You actually have to point out specific examples, because these are natural rights that Canadians feel are theirs, and no court and no government should be able to take them away.

I think those are some of the reasons why this has been such a popular piece of legislation. Now I'm just trying to manoeuvre it through Parliament, which sometimes unfortunately can be skewed in partisan politics. But on a private member's bill, I really do believe that we should be able to, in this place, have fruitful discussion and unwhipped votes on private members' legislation, because I think that is what Canadians sent us here to do.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Goguen.

Madame St-Denis.

[Lise St-Denis, Liberal, Saint-Maurice—Champlain, QC]

I am not going to ask a lot of questions. I am replacing Mr. Cotler at the last minute and I won't be able to ask very specific questions.

Mr. Storseth, you said that you have consulted all Canadians. Did you get opinions from all the provinces in Canada?

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you very much for your question, Ms. St-Denis.

As you have stated, you haven't had the opportunity to review this legislation in depth. I hope you will do that before the next vote, simply because I believe that this is an issue—and Mr. Simms from the Liberal Party saw it as well—not of the left wing or the right wing. It's not a partisan issue. It's actually an issue I think all parties should be on board with. I think when you sit down, look at the actual facts, and at how this is played out, and really, when you look at the infringement of freedom of speech in our country that this has imposed, I believe that—hopefully—you'll give it a second look.

As for whether I've consulted Canadians throughout every province in our country, I personally haven't been to every single province and territory in our country to discuss this legislation, but I have received correspondence. With the amazing mass communication and today's technology, I have had dialogue from Canadians in I believe pretty much every province in the country.

There are some mixed opinions on it, but as you discuss it more and bring more education to light, Canadians in general, I have found, from each corner of our great country, feel that freedom of speech and expression in our country is one of the fundamental principles we have. It's one of our core building blocks of our democracy.

[Lise St-Denis, Liberal, Saint-Maurice—Champlain, QC]

Thank you. I am going to leave it at that.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Jean.

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

Merci.

Thank you very much, Mr. Storseth. I appreciate you bringing us forward. When I practised law in Alberta this was quite shocking for me as well. A quasi-judicial body that would make decisions that would impact people basically with what are criminal-type charges and convictions, and with the ability to then put a punishment on them, is in my mind beyond what would be adequate for a quasi-judicial body.

I'm wondering if you have any specific knowledge of the training and expertise of these individuals. I know that it is very difficult for a member of the bar to become a judge. First they must do seven years of university, including three or four years of law school, practise for a minimum of 10 years—and usually more like 20 to 25 years—as an advocate, as a barrister or solicitor, in one of the courts in Canada, and then to go through judicial training school, and of course are bound by precedents of hundreds of years.

What kind of training would this particular body have compared to a judge of, for instance, the Court of Queen's Bench in Alberta?

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

Thank you very much, Mr. Jean, for your question.

I'd also like to thank you for your help with my private member's bill. You've been a strong advocate for freedom of expression in our country. It is appreciated by our ridings.

Mr. Jean and I are in neighbouring ridings, so people in northern Alberta get Brian and Brian, whether they like it or not.

At the end of the day, you raise an excellent point. There are actually a couple of points in there. It's not only about the extensive amount of judicial training you must have to become a judge in our country, the extensive amount of training to work within the Criminal Code and the criminal justice system in Canada, and how it's obviously not as extensive for this quasi-judicial body. I think the most pertinent point you raise is the fact that this is a quasi-judicial body.

This is not a body that is open and transparent. This is not a body that follows the rules of evidence we have and that exist in the court system in Canada. It is very closed. I've pointed out that intent is not an allowable defence. Truth—even if what you're saying is actually true—is not an allowable defence.

Also, you do not have the right to an attorney. That's something I've always really taken umbrage at in the legislation. It's like putting an amateur hockey player who plays backyard hockey up against a team of professional hockey players every day and then being surprised that the professionals win every game. It simply is not fair. That's not how our court system, as you rightfully pointed out, operates in our great country.

I agree with you in principle on both of those points. It looks like you want to ask me another question, so I'll cut it short.

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

I do.

I appreciate that, and thank you for pointing out that the Brians rule northern Alberta as far as the Conservative Party of Canada goes. I will say that I do appreciate all the letters you send into my riding, because it helps me with my election as well. That is a joke, for all those people who didn't get that.

Now, some people have said that the victims of hate crimes should not need the authorization of the Minister of Justice to go after perpetrators of hate crimes. That sounds to me like an American system, because of course in Canada you can't bring charges privately without the permission of the crown. In fact, no charges—just about—are laid against any individual in Canada without.... I would say that 99.99% of all charges are laid by the crown in right of Canada. So we don't have private prosecutions. Although they are available, very few are pursued.

So how would you respond to needing the authorization of the Minister of Justice, for instance, which is necessary today under the Criminal Code, if you want to proceed with a private prosecution?

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

You raise some very valid points when it comes to that. I can't disagree with your preamble at all. I would perhaps add only that hate crime is a serious offence—

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

Very.

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

—and it's a serious offence that should be investigated by police officers and ruled on by judges with adequate training, as you have said. Also, it should be put forward in an open and transparent system, which is our Criminal Code of Canada. To do otherwise I think would diminish how serious an offence this truly is.

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

Thank you.

Is that all my time?