Justice Committee on April 24th, 2012

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

That's an excellent point, Mr. Jean, and you're absolutely right.

The groups you listed are not traditionally in the voter block that I would rely on to get re-elected in northern rural Alberta, but that goes to show how this legislation really is the norm now. When it was first brought up, this was a contentious piece of legislation, and I would submit to you that it's really not that contentious a piece of legislation now. When the groups you mentioned, such as PEN Canada and some of these others, can agree with the Catholic Civil Rights League, the National Post editorial board, the Toronto Star, and the B.C. and Yukon Catholic Women's League on a private member's piece of legislation, there is broad consensus for this across our country. And dozens of others have endorsed this legislation.

As I've said to you, and I think you've seen in your riding and across our country, Canadians accept this as a piece of legislation that needs to move forward. I'm hoping that not only will we be able to get the support of the colleagues that I had in the last vote, but that through further discussion and consultation with my colleagues in the opposition we'll get more opposition votes on this legislation. This isn't something that should be used as a partisan wedge. It's not something their base doesn't agree with as well.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Madame Boivin, welcome back to the committee, now as the critic for the official opposition.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair. I apologize for being late, but my colleague and I participated in the debate on Bill C-26 and we have been running around.

Mr. Storseth, thank you for being here to talk about your bill. It has caught my attention for some time now. Ever since we started talking about it, we have realized that it is not so simple. We keep going back and forth between various protections that we want to provide. I am an advocate for freedom of expression. It is very important to me. I have spent my life on the radio and on TV, so for me, freedom of expression is a fundamental concept protected under the Charter and I am well aware of that. But, at the same time, I have always known that it is our responsibility to understand that each right can have limits that we set as a society. So it is always a question of finding the right balance.

I don’t think anyone around this table is in favour of hate speech, whatever the extent may be, and I don’t believe that such is the intent of your bill. As I said, once again, it is a matter of finding the right balance.

Mr. Sandhu raised a point that interests me and that would be worth exploring a bit further. I have been a lawyer my whole life and I am going to explain how I see the issues related to the Charter and to human rights under the Canadian Human Rights Act and under current provincial charters, such as the Quebec Charter of Human Rights and Freedoms. As a lawyer, when people came to my office, we could sometimes end up with circumstances that might have led to various types of legal situations. That could entail criminal offences, civil remedies, and so on.

My concern with your bill is that we are taking away an existing remedy. I also met with various interest groups on the issue and some of them felt a certain degree of defeatism. We all pretty much share the same point of view on the issue. Cases before the Canadian Human Rights Tribunal—and in Quebec—sometimes take so long that it is discouraging. But a case that takes a long time does not mean that it is a bad case. Some people have opportunities and they sometimes take advantage of the system. Some people file all sorts of complaints for a yes or no. It has often been the case with section 13. Wouldn’t we be throwing the baby out with the bathwater if we passed your bill? Shouldn’t we work more on improving things and perhaps adding some powers? I think Mr. Moon referred to this bill and said that we should perhaps find a way to allow the Canadian Human Rights Commission to have a specialized tribunal that deals with abuses of the system and with those who sue for whatever reasons in order to protect the right to freedom of expression. At the same time, we have to keep a recourse that is completely different from that of the Criminal Code and that does not minimize the serious nature of the complaint. I don’t agree with your argument that, if it is at the criminal level, it is more serious. Some people don’t go to criminal court and they file civil suits because it is about the burden of proof.

I said a lot of things, but I wanted to share all this with you.

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

Thank you very much, Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Just say yes.

[Voices]

Oh, oh!

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

First of all, I would like to congratulate you on your appointment.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

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

I thank you for the work you've been doing on this.

You talked about meeting with different lobbyist groups and the sense of defeatism. I would be more than happy to sit down with you and any groups that would like to talk about my legislation. As I have said here already today, I am open to some technical amendments or amendments that will stick within the spirit of the legislation I have put forward.

I would just address, in my short time, one point that you made on how long it takes for the Canadian Human Rights Tribunal to go through this. I think that's part of the problem, or one part of the problem with this. I think we agree on this, that it takes far too long and there is no guarantee of a speedy trial or even necessarily an attempt at a speedy trial or investigation. It is something that really runs in contradiction to what we would do under the Criminal Code of Canada and what we would do under other investigations.

The last point I'd like to make is that these are tremendously serious offences, and I feel they need to be dealt with as such. I'm of the belief that the Criminal Code of Canada is the proper place for that to happen.

With that, I would just like to thank you for your intervention. I look forward to working with you on this.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Storseth. You've obviously been ably helped by your assistant here, who has been able to provide you with the information as required.

We need to elect a new vice-chair.

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

I would like to nominate Ms. Boivin. She already had a promotion, let’s give her another one.

[Françoise Boivin, NDP, Gatineau, QC]

You are too kind.

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

I'd like to nominate Madame Boivin as the vice-chair of the committee.

[Some hon. members]

Agreed.

[The Chair, Conservative, Dave MacKenzie]

Congratulations.

[Françoise Boivin, NDP, Gatineau, QC]

Merci.

Can we have five minutes now for a coffee break?

[The Chair, Conservative, Dave MacKenzie]

Okay, five minutes.

[The Chair, Conservative, Dave MacKenzie]

I call the meeting back to order.

We have four witnesses appearing today, three in person and one by video conference. I'd like to welcome Ms. Hunter, Mr. Toews, and Mr. Freiman, who are here in the room, and by video conference Ms. Mahoney.

We can see very clearly. I hope you can hear us fine, Ms. Mahoney.

[Professor Kathleen Mahoney, Fellow of the Royal Society of Canada, Barrister and Solicitor, Professor, Faculty of Law, University of Calgary, As an Individual]

Yes, I can.

[The Chair, Conservative, Dave MacKenzie]

Okay, thank you.

I think all of you have been advised that you have a five- to seven-minute opening address.

Ms. Hunter, would you like to start?

[Judy Hunter, Staff Lawyer, Legislation and Law Reform, Canadian Bar Association]

Good afternoon. Thank you for the invitation to the Canadian Bar Association to present its views to the committee today on Bill C-304.

The CBA is a national association of over 37,000 lawyers, law students, notaries, and academics. An important aspect of CBA's mandate is to uphold the rule of law and seek improvements in the law and in the administration of justice. It is this optic that informs our comments to you today. The CBA's national constitutional and human rights law section and equality committee are the authors of the submission you have before you and are composed of lawyers with specialized knowledge in human rights.

Mr. Toews is a member of the constitutional and human rights law section. He practises human rights law in Winnipeg.

[Mark Toews, Member, Canadian Bar Association]

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.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Freiman.

[Mark Freiman, Past President, Canadian Jewish Congress, President, Canadian Peres Center for Peace Foundation, As an Individual]

Thank you, Mr. Chairman.

Thank you, members of the committee, for affording me this opportunity.

Let me start out by specifying that I appear today as an individual, but I hope as an individual with some relevant background experience. I am the immediate past president of the Canadian Jewish Congress, which during my tenure was recognized as the leading voice for the Jewish community. I am currently the president of the Canadian Peres Center for Peace, and I've had the privilege—in my view it is a great privilege—of acting on behalf of the Canadian Human Rights Commission in the matter of the Internet hate site that was maintained by Ernst Zundel. That was the first successful proceeding brought under subsection 13(1). I've also had opportunities to appear at all levels of court up to and including the Supreme Court of Canada to defend the constitutionality of subsection 13(1) and its analogues.

This morning, however, I do not come clothed in any other authority, and I hope simply to raise a few points with you for your consideration. Let me give you the overall perspective.

It is my view that subsection 13(1) of the Canadian Human Rights Act is an important resource in protecting vulnerable communities from the harm caused by hate propaganda. It 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 Criminal Code, on the other hand, especially section 319, which criminalizes some aspects of incitement speech, is not an adequate substitute for subsection 13(1) of the Canadian Human Rights Act. It also follows that it's not advisable to restrict the definition of hate to advocating violence, which, as Mr. Toews has ably demonstrated, is really what underpins the Criminal Code.

That's not to say that subsection 13(1) is without issues or problems. There are many ways in which the way subsection 13(1) is currently administered could be significantly improved so as to, among other things, weed out frivolous complaints at an early stage, to accelerate the pace of the hearings, to better protect the legitimate rights of respondents by levelling the playing field, and crucially, as Mr. Toews said, to repeal the penalty provisions that are attached to the current provision. Let me simply specify a couple of points.

First, it's important to note that subsection 13(1) does not deal with speech in the abstract. It does not deal with all written, let alone all oral, communications. It deals with a single medium of communication, namely the Canadian telecommunication system and notably the Internet and computer-generated telephone messages, what we today call robocalls.

It is important to remember that the regulation of telecommunications for content is not unfamiliar. On the broadcasting side, the CRTC on a daily basis engages in regulation on the basis of content. The regulation of speech outside of the broadcasting context is also not as unfamiliar as some would portray it as being. In fact the regulation of speech in our society is not confined to prohibiting someone from yelling “Fire!” in a crowded theatre. Let me just remind the committee of some examples.

We have a law of defamation, which regulates the content of speech and 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 to 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 thirties. Study Cambodian propaganda in the seventies. Study anti-Tutsi propaganda in Rwanda in the nineties. Study racist propaganda in the former Yugoslavia of the nineties. You will get your answer.

Does subsection 13(1) target only dangerous speech, or is it aimed at politically incorrect speech? Because of the definition given by Chief Justice Dickson in the Taylor case in the Supreme Court of Canada, the regulation is strictly confined to the most extreme kinds of speech. I won't go into the legal definitions here, but they are extremely rigorous. Even Professor Moon, in his remarks, has acknowledged that subsection 13(1) has only been used, up to now, on speech that is at the far end of hate propaganda.

The Criminal Code, in my submission, is not an adequate substitute or an adequate basis on which to protect society from these sorts of dangers. Mr. Toews has given fine examples of it. Let me simply add that the target of prosecution is the wrongdoer, and, appropriately, we set high standards to protect against wrongful convictions.

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.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Freiman.

Now, by video conference, we have Ms. Mahoney, all the way from Calgary.

Perhaps you would like to give us an opening address. Thank you very much.