Evidence of meeting #32 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was we've.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Frank Dimant  Executive Vice-President, B'nai Brith Canada
David Matas  Senior Legal Counsel, B'nai Brith Canada
Marvin Kurz  National Legal Counsel, League for Human Rights, B'nai Brith Canada
Eric Nielsen  Counsel, Human Rights Law Section, Department of Justice

11:50 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

Sure. I'm sorry.

11:50 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

I appreciate that.

We heard quite a bit about the penalty clause on Tuesday, especially the Canadian Bar Association actively advocating that it be removed, central to the Lemire decision but with some of the problems.

11:50 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

That was our position on Lemire before the court.

11:50 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

That's great.

Here's what I would ask for your feedback on. It is a shame the way our parliamentary process seems to be working in general here. As soon as you folks leave, it looks as if we're going to be going to a clause-by-clause consideration. It would be so much better, after having heard witnesses on Tuesday, and now you here, that we have time to reflect, debate, and then go to clause-by-clause. That doesn't look to be the case in terms of the procedure we've inherited. It's no fault of the chair or anybody else.

If I were to say that the amendments proposed by Mr. Cotler were to be adopted as a halfway house to fix parts of section 13—consent of the attorney general, non-abuse in terms of no multiple proceedings, and elimination of the penalty clause—and then there would be the expectation that we would continue to work on fixing sections 13 and 54 together, would you be open to that, if this committee could work on those terms?

11:50 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

Sorry, I've tried to jump in, and perhaps rudely so.

We've talked about the consent a number of times as if it's a saving. I'm a lawyer, so like other lawyers I figure like a carpenter I can fix every problem with a hammer and nails.

The consent is a red herring, in my respectful view. If you were to read Chief Justice Dickson's majority decision in Keegstra, there isn't a word about what they call the attorney general's fiat that's used to save the legislation. The attorney general's consent, whether in section 13 or section 319, is irrelevant. We had advocated for years getting rid of the attorney general's consent because there seemed to be no constitutional dimension to it. That won't save it.

11:50 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

I'm not saying save it. My question was about whether we can start the process.

11:50 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

It won't make it better. What I'm saying is it's not enough.

11:50 a.m.

Senior Legal Counsel, B'nai Brith Canada

David Matas

You present a hypothetical and ask if we're open to it. Sure, we're open to everything. We can only react to what we see in front of us right now. We have no views on parliamentary process. That's not the ambit of our organization.

Obviously, Mr. Cotler sees the same problem we do and is attempting to address it. I appreciate where he's coming from, and indeed we're coming from the same direction. I wish all the wisdom of parliamentarians together to solve this problem.

11:50 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Mr. Jean.

11:50 a.m.

Executive Vice-President, B'nai Brith Canada

Frank Dimant

If I may, I understand the mood of the Canadian public and the perceptions out there that any kind of band-aids that will be applied right now may be very good band-aids. We would probably be very enthusiastic, but they will not be seen as healthy by the Canadian people. We should remember that as a human rights organization.

11:50 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Mr. Jean.

11:50 a.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

Thank you, Mr. Chair.

Thank you, witnesses. Shalom.

It's good for you to come here today. Clearly, it seems to me, after listening to your evidence today, that you support the government's position and Mr. Storseth's position to eliminate section 13. I can tell you put a lot of thought into it. Obviously, you do this full time, or at least a lot of your time.

I'm a lawyer as well by trade. I've been here almost eight years now, and I've enjoyed my time here in Parliament quite a bit. It appears, from my perspective, that even if the opposition is suggesting we amend section 13, your position is clearly that there's a bad taste left in the mouths of Canadians over section 13 and the issues that have surrounded it over the past years, and no matter what, we can't fix it at this stage.

Is that fair?

11:55 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

Yes, I think it's very fair. We wanted it fixed to see if it works. But it hasn't been fixed, it's not working, and it's worse. So the question is whether doing now what should have been done five, eight, or ten years ago is enough. We're saying we've agonized over it, but now we think it's too late.

11:55 a.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

I would agree with you. Bluntly, the smell that permeates from section 13 and the surrounding decisions made from it is too strong to deal with on a continuous basis for Canadians generally.

11:55 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

The decisions that have been made by the Canadian Human Rights Tribunal are unassailable. One of the great legal clichés is that justice not only has to be done—which I believe it has been in every section 13 case, and I'd be willing to take any case to appeal—but it has to be seen to be done. I don't want to repeat all of it, but the problem is there have been so many problems getting there. It's really important for human rights legislation to be in a position where the public supports it. It has to represent a central Canadian value.

When we talk about Weimar laws, there were all sorts of great laws in the Weimar Republic that weren't honoured. It's better to have laws that are honoured. We're hoping the government will see fit, when looking at section 319, to make it much stronger and by far the more effective remedy, recognizing that there has to be a balance now. If the government has decided, in light of the procedural concerns, to make this change, there has to be something on the other side of that scale.

11:55 a.m.

Senior Legal Counsel, B'nai Brith Canada

David Matas

This jurisdiction is a very particular one. It's basically telephone and Internet, because it deals with the federal jurisdiction on the issue. There are other problems with section 13. The hate jurisdiction federally is split up: the CRTC deals with broadcasting, the post office deals with hate by the post, and so on.

One of the recommendations we've made through the years is on consolidation of all these various federal jurisdictions, with one tribunal dealing with all of them. In fact, the Human Rights Commission has supported that. I agree with my colleagues that section 13 hasn't worked and has become tainted by its failure. But I don't think we should abandon all of these proposals for reform simply because or if Bill C-304 passes. There is room for civil jurisdiction. The federal parliamentarians should be looking at making an effective, coordinated, unified, procedurally sensible jurisdiction to deal with hate speech, whether section 13 survives or not.

11:55 a.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

I would agree with you. I think that's a fair comment.

I want to get back to what was said by Mr. Kurz in relation to justice and Canadians wanting to know that justice is being done.

I have to tell you it was shocking to me to become a lawyer and see this system in place. The perception of justice has to be seen to be done as well, and I think you're going to comment that Canadians want to believe there's justice. With our criminal system as it is, with full disclosure, being able to hire a lawyer, being able to go to a preliminary inquiry, a trial, a Court of Queen's Bench for appeal, a Court of Appeal for appeal, and then to the Supreme Court of Canada, there are a lot of options to make sure we get it right. Most Canadians understand the criminal system, as far as that goes, and that they will receive justice at that point. But I'm not sure Canadians really understand that with section 13 there they would receive justice, or at least a fair hearing.

11:55 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

It's yes and no, Mr. Jean. Yes, there are problems and we've acknowledged them. But I think there is also some misunderstanding that the Canadian Human Rights Tribunal is a kangaroo court, which it isn't, actually.

11:55 a.m.

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

I'm not saying that at all, but the perception of justice is more important sometimes than justice itself.

11:55 a.m.

National Legal Counsel, League for Human Rights, B'nai Brith Canada

Marvin Kurz

I agree with that. There are all those appeal rights you've talked about from human rights law. Don't forget that even with section 319 gone, the Canadian Human Rights Act will still be there, and it's a very important piece of legislation. The tribunal will still be there.

It's important to understand that we at B'nai Brith are still defending the Canadian Human Rights Act and the tribunals that administer it. The problems in many ways are specific to section 13 and the problems it tries to address, and whether the Canadian Human Rights Act, a very good piece of legislation, is the proper place to deal with hate speech. That's really what it is.

Noon

Conservative

Brian Jean Conservative Fort McMurray—Athabasca, AB

It's an even better case now that section 13 will be gone.

Noon

Conservative

The Chair Conservative Dave MacKenzie

Thank you, Mr. Jean.

I would just say to the committee that I haven't kept strictly to the five minutes. We'll have to do that in the future, but we had only one group before us, and I didn't think anybody would be offended.

Just with the prerogative of the chair, to Mr. Scott, if you look at the bill you'll see this doesn't come into effect for one year, so you may wish to do the same thing as the sponsor of this bill did.

Noon

NDP

Craig Scott NDP Toronto—Danforth, ON

Thank you so much for the suggestion.

Noon

Conservative

The Chair Conservative Dave MacKenzie

I'd like to thank the members who were here today. I think it's been most informative and instructive to the committee. We'll just suspend for a few minutes so that we can change from the panel and have our legislative clerk come to us.

Thank you very much.

12:10 p.m.

Conservative

The Chair Conservative Dave MacKenzie

We'll reconvene and get to the clause-by-clause portion of the bill.

I seem to be missing a....