Justice Committee on April 26th, 2012

[An hon. member]

Mr. Chair, bang that gavel.

[The Chair, Conservative, Dave MacKenzie]

Do I have to hit it harder?

We're at clause 1.

(Clause 1 agreed to)

(On clause 2)

We have a Liberal amendment, LIB-1.

Mr. Casey, would you like to introduce that?

[Sean Casey, Liberal, Charlottetown, PE]

Yes.

I believe the amendment has been circulated, Mr. Chairman. This amendment would of course restore section 54, but without the monetary penalties.

Although I wasn't here, I understand that you did hear from the Canadian Bar Association, and the Supreme Court of Canada has also pronounced on the appropriateness of the monetary penalties in section 54, so—

[The Chair, Conservative, Dave MacKenzie]

Mr. Casey, are you on LIB-1?

[Sean Casey, Liberal, Charlottetown, PE]

I thought I was.

[A voice]

No. LIB-1 is on—

[Sean Casey, Liberal, Charlottetown, PE]

Oh, okay. I have to reprogram.

Thank you, Mr. Chairman.

This amendment was actually under discussion with the last set of witnesses. This is one of the principled reforms that has been advanced by Mr. Cotler. It is to require the consent of the Attorney General in order for there to be an investigation launched under this section, along the lines of what's required under the Criminal Code. This amendment is to address the concern with respect to frivolous and vexatious claims being advanced.

Again, I think this is a case where we would urge that what we don't need to do is throw out the baby with the bathwater or employ a sledgehammer where a scalpel is more appropriate. That would fall into this category. The basis of the amendment is to call for the approval of the Attorney General for investigations under section 13, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Casey.

The ruling of the chair is that, as House of Commons Procedure and Practice, second edition, states on page 766, “An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill”, in the opinion of the chair, the keeping of section 13 and the addition of a subsection to section 13 is contrary to the principle of Bill C-304 and is therefore inadmissible.

[Françoise Boivin, NDP, Gatineau, QC]

Is that—

[The Chair, Conservative, Dave MacKenzie]

It's not debatable.

[Françoise Boivin, NDP, Gatineau, QC]

It's not debatable?

[The Chair, Conservative, Dave MacKenzie]

No.

You can challenge the chair if you wish. No? Okay.

Mr. Casey, I believe you have another amendment—LIB-2.

[Sean Casey, Liberal, Charlottetown, PE]

I want to make sure I have the numbering right, Mr. Chair. Based on your previous ruling, it appears that I might be in a bit of trouble on this one too.

Mr. Chair, this specifically relates to the commencement of proceedings in multiple jurisdictions. It affords to the Human Rights Commission the ability to prevent the same basic complaint under multiple jurisdictions. It also proposes to bring back section 13, although with this governor on it. Again, the feeling of Mr. Cotler, and the feeling of the Liberal Party, is that while there are problems with section 13, the answer isn't to completely repeal it. Measures such as these would address the problems with it.

While the current process is flawed, civil remedies for hate speech must exist, in our submission, and principled amendments such as these are the more sensible and fairer way to deal with this, rather than scrapping section 13 in its entirety.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Casey. You were correct that House of Commons Procedure and Practice, second edition, states on page 766 the following: “An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.”

In the opinion of the chair, the keeping of section 13 and the addition of a subsection to section 13 is contrary to the principle of Bill C-304 and is therefore inadmissible.

My understanding is that Ms. Boivin would like to speak to clause 2.

[Françoise Boivin, NDP, Gatineau, QC]

Yes, please. This is about clause 2. Before we get to a vote, I want to reflect on a few points.

Considering that this bill simply proposes to repeal section 13 of the Canadian Human Rights Act, we were obviously very aware that any amendment attempt would be problematic without an opening on the government side. It was essentially the position of the sponsor of the bill to simply repeal section 13, unless there was an opening on the government side.

However, I would like to repeat to the government and to the Conservative members of this committee that we heard witnesses invariably saying that they were aware of the problems related to section 13. They recognized the procedural abuse problems. They were also aware of the problem of the punitive provisions. I will get back to these later on.

However, I have said and I will say it again that throwing out the baby with the bathwater is not the right answer. We have to stop thinking that the solution has to be strictly limited to the Criminal Code. I simply want to remind committee members of the burden of proof. We all have enough knowledge of the rule of law to realize that the burden of proof is not at all the same under the Criminal Code. Moreover, in the case of an offense under section 319 of the Criminal Code, the context is not the same either. And the targeted groups are not necessarily the same.

I am concerned about the fact that, unlike the Canadian Human Rights Act, the Criminal Code does not include sex as a distinguishing factor of the protected groups. So women can be targeted by hate speech as this aspect is not at all dealt with in section 319 of the Criminal Code. On the other hand, section 13 of the Canadian Human Rights Act undoubtedly protects women against hate speech.

What is being done here will cause serious problems. We are all in favor of freedom of expression. One of the witnesses we heard on Tuesday—I am not sure of her name, but I think it was Ms. Mahoney—told us that it is not a matter of freedom of expression but of hate speech. Hate speech is not at all the same as freedom of expression. I do not believe anyone around this table is in favor of freedom of hate speech. We are all against this. I do not doubt that for a second.

However, there is room for a civil remedy or a remedy based on a chart or code provided it is well conceived and is not abusive. Nothing was more convincing to me than to hear our last witnesses say that they blindly support the process chosen by the government in consenting to this private member bill but that they feel anyway this is a fait accompli. They are hoping the Criminal Code will be amended. This is a remarkable act of faith on their part.

In fact, if the government does not act, we will probably get down to it and try to find a way to strengthen section 319 of the Criminal Code. We have to do it first to deal with the problem I just mentioned that women are absolutely not protected by section 319. However, the remedy provided by section 13 will never be replaced. The fact that some people abused this remedy or engaged in multiple proceedings is not reason enough to simply abolish some extremely important human rights safeguards.

Our committee did not hear these people because, unfortunately, time and the number of witnesses were limited.

Let me say, incidentally, that it would have been nice to do with Bill C-304 what was done with Bill C-26. We are all aware of the problems and we could have taken a little more time to try to find some smart answers with the participation of the sponsor of the bill, Mr. Storseth. We will see him later on.

When the opposition moves amendments to repeal some provisions, they are usually considered to be beyond the scope of the bill. However, when a government member moves an amendment that would repeal some provisions beyond the scope of the bill, being from the same party as the sponsor, he or she can expect the amendment to be easily passed. This is unfortunate. Indeed an amendment is not automatically bad simply because it comes from the opposition.

I think this kind of work could have been done serenely and in good faith. We could have tried to avoid repealing a provision that is perhaps simply not drafted or used the way it should have been. We could have attempted to simply remove the irritants from this section. We still believe that hate speech should not be tolerated in Canada and that we should have remedies other than the Criminal Code. Indeed, in criminal law the burden of proof is quite high and the proof submitted has to be beyond a reasonable doubt, which is not easy to establish.

The Quebec Bar, of which I am a member, sent us a document that you have probably all received. I would like to quote a few excerpts of this document before concluding my comments on section 13 of the Canadian Human Rights Act. The last paragraph of the first page says this:

The Quebec Bar would like to reaffirm the reasonable and balanced nature of prohibiting hate messages and show its support for the civil penalty outlined in section 13 of the Act. While we are staunch supporters of the freedom of expression provided for in section 2(b) of the Canadian Charter of Rights and Freedoms, we believe that limits established by legislation and case law are needed to oversee the exercising of this right. Yet the scope of this freedom cannot be determined in isolation. This is why section 319 of the Criminal Code formally prohibits hate propaganda. Furthermore, the Quebec Bar would like to draw your attention to Canada’s international obligations, which must be respected and promoted. A key example is the International Covenant on Civil and Political Rights, which Canada ratified in 1976: it addresses freedom of expression in Article 19 and outlines the limits of this freedom in Article 20, condemning the advocacy of hatred and incitement to violence.

Canada is party to many other treaties. A bit further, the document says:

While, in theory, section 13 of the Act could be considered a considerable constraint upon the freedom of expression, in practice, this concern was addressed in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. The Supreme Court confirmed that section 13 is subject to a strict interpretation.

I believe it would have been possible to amend this bill. Without completely repealing section 13, we could have prevented ill-intentioned people from abusing it in order to restrict freedom of expression and launch innumerable proceedings against others. This bill will likely be passed, and this is regrettable. It is also unfortunate that the only remedy left will be the Criminal Code.

I hope the government and the parliamentary secretary to the Minister of Justice will take good note of all the recommendations submitted by the witnesses who appeared before the committee. They stated that if the chosen avenue is the Criminal Code, significant amendments would be required to ensure that reasonable standards are being met. I do not think our society wants the definition of freedom of expression to include hate speech, particularly if we consider the electronic tools at our disposal and most importantly, the World Wide Web where this kind of speech can be found.

As our last witnesses said, what is happening in Europe is coming to the shores of Canada. After passage of Bill C-304, our country will be considerably more vulnerable to hate speech.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Madam Boivin.

Mr. Scott.

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

Thank you, Mr. Chair.

I don't want to go over the same territory that my colleague, the justice critic, has gone over, so I'll try to keep my own remarks fairly brief.

I think it's really important that whatever happens with the upcoming vote on this, we do keep the record of witnesses firmly in mind for purposes of going forward. If the bill passes, I think it should still be open to some kind of revisiting of this issue, to build back up the appropriate protections within the Canadian Human Rights Act.

Thank you, Mr. Chair, for having mentioned the fact that there is a one-year delay on this, which obviously gives some space for that kind of approach.

Obviously, if the bill doesn't pass, then I personally would be happy to commit to working in a multi-party way, treating seriously the kinds of suggestions we've heard, and the other suggestions that we know are out there, to make section 13 work procedurally, to get rid of the abuses in the system.

I think it's really important to note that no witness before us—no witness—referred to the content of section 13 or decisions made by tribunals under section 13 with respect to section 13 as being the problem. All were supportive of that. Everybody focused on different versions of problems of abuse.

I accept the question of where we've gotten at the point of perceptions of the process is perhaps equally as important, which Mr. Jean has brought up. I think that's a very valid point. But it's not about the content, and I think we are in a situation of being about to possibly repeal something without anything adequate to replace it. Frankly, the Criminal Code provision, we've heard—we know—is not doing the job. So we are doing it in the context of diminishing protection, at the moment. That's basically what the result will be.

I think whatever happens with respect to the vote on Bill C-304, we would do well as a committee to think about whether or not something can be salvaged from the process that's been streamlined in the way it's had to be streamlined—because it's a private member's bill, because we're getting to it on second reading, and so on.

I think it's important just to reiterate the point made by Mr. Kurz, who in today's session was probably most convinced that apart from it being a fait accompli, it's so problematic procedurally that he almost sees no choice. But he did say, and this is a cobbled-together quote using his words but with two sections put together, that every section 13 decision has been “unassailable”, and that the Canadians Human Rights Act is “a very good piece of legislation”.

I think that's really important, because some of the questions have attempted to get the witnesses to say that the content and the decisions with respect to section 13 are part of the problem, and no witness has acknowledged that.

Then there was Mr. Matas's plea, frankly, to not abandon the effort to reform even if section 13 is repealed.

I think we owe it to Canadians, and we owe it to those who take seriously what section 13 has been trying to accomplish, to take that plea very, very seriously.

I'll leave it at that. I think we all know where this is going, but it would be nice if it's not the end.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Rathgeber.

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

Thank you, Mr. Chair.

I'll be brief. I take a different perspective from that of Mr. Scott. I think we owe it to those who believe in the Constitution and believe in freedom of speech, freedom of thought, and freedom of expression that section 13 is unsalvageable and it ought to be repealed.

I do want to address Ms. Boivin's comment, because she incorrectly cited section 319 of the Criminal Code. She stated that it did not include potential hatred against women.

I would read for her subsection 319(1):

Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

Subsection 319(2) uses the same language: “wilfully promotes hatred against any identifiable group”.

There are no limiting definitions of what an identifiable group is in section 319.

In section 318, the genocide provisions, she would be correct that identifiable groups are limited to groups that are distinguished by colour, race, religion, or ethnic origin, but there is no such limitation with respect to section 319.

So when she fears that section 319 could not be used, potentially, against an individual who incited hatred against women, she's incorrect.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Ms. Findlay.

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

Thank you, Mr. Chair.

I want to reiterate that our government is very concerned about human rights, and the protection of human rights. This is something for which I think Canada has an enviable reputation in the way we have stood up for them.

Mr. Scott is quite correct that the Canadian Human Rights Act, taken in its totality, is a good piece of legislation and it's one we have come to rely on.

However, amending section 13 does not deal with many of the issues raised by the witnesses today, such as multiplicity of venues, the inability to order costs where it has been brought frivolously. There are many problems with the way that particular section has wound its way through the tribunal and commission processes.

If it was missed before, I have a comment on this. I want to point out that Bill C-30, which has already been introduced in the House, as part of the non-exhaustive list, puts “sex” in again for both sections 318 and 319. That is specifically where the protection for women will come, which is something I know we share a concern about.

We are taking measures already to improve the Criminal Code provisions. There was a lot of thoughtful comment today, which I suspect we will all be giving a lot of thought to moving forward in terms of what we can do legislatively to protect Canadians.

I think we are headed in the right direction.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

In answer to Mr. Rathgeber, I have to say that I read this provision in its entirety. So I want to draw his attention to the definitions in section 319(7), which specifically states that "identifiable group" has the same meaning as in section 318. Sometimes, you have to read the whole thing. So do not worry, I did my homework before expressing my views on this issue.

I appreciate my colleague's comments but I am still as concerned. In order to make sure that Mr. Rathgeber understands, I will add that in the definitions given in the last subsection of section 319, it is specified that "identifiable group" has the same meaning as in section 318. This is why I said that women are excluded. This is indeed the case.

That being said, you have to realize that Bill C-30 is just that, a bill. We know there are several problems with this legislation. I do not think our committee will deal with it. So we hope this point will be corrected because it is obviously an oversight.

This is all I have to say. We can get back to this issue if the day comes when I start to make mistakes about definitions in legislation. This does not happen very often.

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

I am not trying to influence anyone's vote but this should not be considered as the end of section 13. It should rather be a renewal of the protection provided for in section 319. Obviously there is a difference in the protection afforded by the two legislations. However, this bill will not come into force before a year from now. So we have a lot of work to do.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

(Clause 2 agreed to: yeas 6; nays 5)

(Clause 3 agreed to)

(On clause 4)

The government has an amendment. Do you wish to introduce it?