Justice Committee on April 26th, 2012

[David Matas]

I think there is room for a civil remedy. As I say, structurally what was.... I mean, if it weren't for the procedural problems, I think the law would make sense. The civil law doesn't send anybody to jail. It doesn't penalize anyone. All it does is say don't do that again, and what they're not supposed to do again is very clear. If they do it again, then it becomes contempt of court.

My view is that in order to combat hate speech effectively, you need a range of remedies. The first is simply education and advocacy and information. The notion that it has to be either the Criminal Code or nothing I think gets us to a situation where nothing ends up being done, because the Criminal Code is too draconian.

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

Mr. Kurz.

[Marvin Kurz]

I agree with what David said. Again, I think we do need a range of remedies. But part of what we need—and I was just thinking about David's comment about the Weimar laws and what have you—is respect for the law. We've come to a point where the public at large, for better or worse, has such an adverse view of the law that it's very difficult for it to continue.

Part of the problem with section 13 has not only.... I mean, David talked about section 13 as saying “stop doing that”. But part of section 13 was to have a conversation without even making that order. I'm hoping that will be available anyway.

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

Thank you very much.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chairman.

Mr. Kurz, three and a half years ago, in November 2008, your organization issued a press release. You were quoted in it as saying that doing away with section 13 of the Canadian Human Rights Act governing hate speech “would be a step in the wrong direction”.

We've heard today that your position has changed. I guess my question for you is, what has happened in the last three and a half years to cause a 180-degree turn?

[Marvin Kurz]

Let me start, Mr. Casey, by saying.... We've said that from the start. We've been among the most vocal supporters of section 13. We've gone to court a number of times, even since that day, to support it.

But it's not one thing. You're asking where's the...I don't know, the straw that broke the camel's back. I'm not trying to find the perfect cliché for that. But what has happened? It's an accumulation of factors. We're talking about something from almost four years ago, or three and a half years ago, when I made that statement on behalf of the organization. What I've seen is that the statement was made in the context of a hope that the legislation would be fixed. Legislation has not been fixed, Mr. Casey, and I don't see any legislation on the table to fix it.

So we, as a human rights organization, are faced with a situation where we're talking about tools, not results. At the end of the day, we know what we want. We want a Canada where minorities are free from hate speech, where Jews aren't defamed as a group because they're Jews, where blacks can feel comfortable—all of that.

What we've seen, three and a half years later, is that it's working less and less. This, for example, was before the Elmasry and Rogers case, which is a seminal case in the history of human rights commissions and human rights law dealing with hate speech, with the whole notion of Maclean's and Rogers, even as a big company, having to go through all of that. There have been a number of them.

There's our own resolution of a frivolous and vexatious human rights complaint. We've been on both sides of them. Again, we've seen some of the procedural problems. We've actually gone to court in the Lemire case, where procedural problems were what caused the Canadian Human Rights Tribunal to set it aside.

The position we took with the court is that this is a question for Parliament, not the court. The legislation isn't unconstitutional, but what's happened, eventually, as the law always evolves, is that now we feel that the circumstances have changed. Also, as I say, part of it is that the public just doesn't have the same level of respect for it that they used to.

We had hoped there would be changes. They haven't happened. What we're pinning our hopes on, to be very honest with you, Mr. Casey, is that some of the hopes that we've been putting on section 13 now will go onto section 319. We're hoping this will be part of a package, and we're hoping this committee will see fit to be involved in that process.

[Frank Dimant]

Mr. Casey, just to add to that, for any action we would take now that would invoke section 13 as a cause to move forward, we would be ridiculed, as would every other human rights organization. Every op-ed in the country would be against us. It has outlived its usefulness. That's the conclusion we have drawn. That's why we are sitting here today articulating the position that we are.

[Sean Casey, Liberal, Charlottetown, PE]

We're going to be bringing forward a couple of amendments to address problems with section 13. In the course of answering some of the earlier questions, you've actually referenced a couple of them. I guess my question for you is whether we will be in a better position with the void created by the repeal of section 13, or with the amendment, or the tweaking, or the adjustments that we are bringing forward.

Here are a couple of the suggestions that have been brought forward by Mr. Cotler and that will be debated at some point here. One is to allow for or to call for the consent of the attorney general for section 13 prosecution action, along the lines of what's required under the criminal law. The second is to allow for the Human Rights Commission to strike down or strike out cases that are abusive or duplicitous because they've been launched in multiple forums.

I'd be interested in your comments with respect to those two proposals, and also in your comments as to whether it's better to have section 13 in existence with safeguards like that than to have nothing.

[David Matas]

I appreciate the intent of those. Those two amendments in the abstract, I think, are part of the solution to the problem we've identified. But I think what we have to look at, and what really caused us pause in all this, is the phenomenon that we're seeing domestically, and have seen in spades internationally, that people will take advantage of a jurisdiction like this to pursue their own agenda that has nothing to do with human rights. It will be systematic, and it will be pervasive, and it will be continuous, and they don't really care about anything except their agenda. They will use this forum to pursue it.

So those amendments, I think, are part of the solution but not the whole solution. I think we need a whole set of safeguards in place to deal with this problem.

What we're seeing with this, which, as I say, we're also seeing internationally, is the creation of a platform to actually work against the very intent. I think one has to think systematically about....

What we're dealing with conceptually is the balancing of two very different human rights: the right to freedom of expression and the right to be free from incitement to hatred. They need to be balanced off against each other. We're seeing this played out practically in this section.

Now, you ask whether we're better off with those amendments. I would say we're better off with a system that works well, devised in such a way that it realizes the intent in preventing abuse.

Will those amendments alone be enough to do it? I'm not sure. I would prefer a whole set of amendments that deal with the problem.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

[Marvin Kurz]

I'll just add—

[The Chair, Conservative, Dave MacKenzie]

Again, we're quite a way over time.

[Marvin Kurz]

Sure.

[The Chair, Conservative, Dave MacKenzie]

Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you, Mr. Chair.

Thank you to all for being here today.

It's particularly good to see David Matas again. We've known each other over many years through various organizations we've been involved in.

I know that particularly you, David, as with the other witnesses here today, bring an international lens to this, which I appreciate hearing.

I had the privilege of being an administrative law judge on the Canadian Human Rights Tribunal for five years. I saw these cases in action, as they played out through that process.

I think you, Mr. Kurz, identified a couple of things that troubled me and that led me to support this repeal. You mentioned costs. At one time, we were able to grant costs to a defendant who was wrongfully complained against, for instance, but the Federal Court of Appeal took that away from the tribunal.

So that was a measure where, if it was felt it was being used punitively or inappropriately, we had some way to deal with it. The tribunal doesn't have that anymore.

[Marvin Kurz]

One way, really.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Yes.

Also of course there's the whole issue of a balance of probability standard over reasonable doubt, the fact that tribunals, appropriately, can hear hearsay evidence. I mean, there are many issues with it here, working its way through a tribunal process. You also identified the multiplicity of venues, which can be very problematic.

I think all of these factors have gone into our thinking on our side of the House in supporting this private member's bill.

Also, I think it is important to mention that the government has already introduced Bill C-30, which does bring amendments to section 319 of the code to expand the list of activities or groups in the Criminal Code.

I was very interested in your comments on improvements that can be made, and also the way it plays out in provincial jurisdictions. We, obviously, cannot tell the provinces how to do this, but I think groups such as yours have a huge role to play in making those suggestions.

Improvements that could be made, or even the addition of other specific offences, as I think you mentioned, David, are things that I would very much want to see us take into consideration. I hope you will continue to give us your advice in that respect.

I also noted the comment that we have to recognize that despite our best efforts, these actions have not gone away. In other words, we have to be ever-vigilant.

My question to you, or maybe it's more of a comment, is this. Do you see yourselves as being able to play an active role in continuing to advise us on ways that, through the Criminal Code process, we may be able to better deal with this kind of attack?

[David Matas]

In fact, in my opening statement I proposed a number of suggested reforms to the Criminal Code to try to make them work.

Statistics Canada just came out with a report—it was from 2010, but they just came out with it—about hate crimes. Over the period they were looking at, they identified 1,400 hate crimes that police found were substantiated by the evidence in front of them, and they identified during that period 14 convictions.

Now, there's a mismatch between the two tables, because for the reporting, they looked at hate-motivated crimes as well as hate crimes, but for the convictions, they looked only at hate crimes. Even so, there was a very low conviction rate, and there was quite a high incidence of criminality. Part of the problem, which is one of the reforms we've suggested, is that we put hate motivation into the offence rather than into just part of the sentencing.

Right now we need the consent of the attorney general. I appreciate your suggestion to introduce it. But the consent of the attorney general itself, although I think it's valuable, does present a problem. We get cases where the police, even publicly, have said that there's an offence, but the attorney general has refused to consent, because there are free speech absolutists. We get letters to that effect.

Even though the federal Attorney General only consents for the Northwest Territories and Yukon and Nunavut, I think if we had guidelines from the federal Attorney General about the use of the consent, or maybe in concert with the provincial attorneys general, that might help to get these consents working.

As I said in my opening statement, we can't just abolish the civil jurisdiction and say that it's criminal and leave it as it is, because the criminal law is almost entirely a dead letter right now.

[Frank Dimant]

If I may add just one comment on the use of consent, I think my colleague is very kind when he attributes their motivation to ideology. I'm going to say that they're politically motivated. They make an assessment in terms of what's going to fly. They test the winds of the community, and they figure that it's best not to get involved. Therefore, they move away from giving consent on those issues.

I vividly recall the many years we had on the issue of Zundel. Every government promised, right before they were elected—right before—that they would move on it, and then they opted not to because there just wasn't enough political capital in it.

So I agree with my colleague here that perhaps there should be better guidelines for the attorneys general.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Scott.

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

Thank you very much, Mr. Chair, and thank you all for coming.

I appreciate the testimony that has made really clear that it's not the content or the particular tribunal decisions that have been arrived at that are the worry. I think that's important for colleagues on this committee to hear, because sometimes the justifications for this bill seem to shade into a concern that only so-called offensive speech is being attacked by section 13, which isn't the case at all in the actual jurisprudence.

You are more concerned with all kinds of dimensions of abuse of the system. And I think that's important, because to me, it leaves open the possibility that we can fix the system without, as my colleague has said a couple of times, throwing the baby out with the bathwater.

That said, it was with a heavy heart that I heard Mr. Kurz say that his hope was that the legislation could be fixed, but he doesn't see any legislation on the table to fix it. There were a few times in your comments when you said that you feel as if this is a fait accompli.

I'm just wondering whether you've made efforts, or if you know others who have made efforts, with the government itself—this is a private member's bill—to actually fix section 13 in the ways you've been suggesting.

[David Matas]

We have, very much so. You can look at our website. We've advocated for years for many of the procedural reforms we're mentioning to you now. We've had something posted on our website for years on this issue. We have shopped it around, so to speak. Unfortunately, this is the situation we're faced with. In fact, as your colleague across the floor mentioned, things to a certain extent have deteriorated, because at one time there was a view among these tribunals that they could award costs, and the Supreme Court of Canada said no, they can't.

I'm not quarrelling with the legal correctness of this decision, but it has made matters worse. What we see is that we advocate reforms, but in the meantime, all the abuses are accumulating and the reforms don't happen.

[Marvin Kurz]

We need to see as well that it has gotten worse. I was asked by Mr. Casey about what's happened in the last few years. Don't forget, and one thing that's never mentioned, there's a penalty clause in the Canadian Human Rights Act, which is a terrible mistake. I remember being at the Zundel hearing, and a number of counsel were standing together and we found out that Parliament passed the penalty clause. We said to ourselves, what were they thinking? If there was a sure way to get rid of the legislation from a constitutional point of view, it would be to add a penalty clause to make punitive a piece of legislation that wasn't meant to be punitive.

Let me just say one other thing—

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

I do have another question, Mr. Kurz.