Justice Committee on April 26th, 2012

[The Chair, Conservative, Dave MacKenzie]

I call this meeting to order, this being the 32nd meeting of the Standing Committee on Justice and Human Rights.

Pursuant to the order of reference of Wednesday, February 15, 2012, we are here to consider Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom).

This morning we have three witnesses, all from the same organization, from B'nai Brith.

I think in the correspondence you received from the clerk it was indicated that you have five to seven minutes for an opening address. Whichever member wishes to make that address, or share it, you can start now.

[Frank Dimant, Executive Vice-President, B'nai Brith Canada]

At the outset, we want to thank the committee for extending an invitation to B'nai Brith Canada and its League for Human Rights to appear before you.

I'll begin with a word about B'nai Brith Canada, introduce some of the members of the delegation, and give our position on the issue.

B'nai Brith Canada is the Jewish community's most senior organization. We have been operating in Canada since 1875. Our mandate is both to provide social services and advocate on behalf of the community. Through our League for Human Rights, we deal with domestic human rights issues. Through our Institute for International Affairs, we deal with the global issues of human rights and protection of human rights.

Today we have an interesting representation of our organization.

First of all, my name, just for the record, is Frank Dimant. I am the CEO of B'nai Brith Canada and its League for Human Rights and Institute for International Affairs.

We have brought along several key international and domestic experts on human rights, who are senior officers within our organization, to help enunciate the position of our organization after much deliberation. It was not an easy decision that we came to. We spoke for approximately one year in order to reach a consensus among all our various human rights activists across the country.

Our delegation, some of whom will speak and some of whom will be in the audience, consists of Eric Bissell, our national president, who has come from Montreal; Dr. Max Glassman, a national vice-president from Toronto; and Michael Mostyn, our chair for government relations. The two individuals here with me certainly do not, for some of you, need any kind of introduction. Dr. David Matas is our honorary senior legal counsel and is one of the world's greatest international human rights advocates. He represents B'nai Brith Canada and B'nai Brith International at numerous conventions and forums around the world. Finally, Marvin Kurz is senior legal counsel for the League for Human Rights of B'nai Brith Canada. He has been involved in virtually all of our major human rights issues and appearances before the courts, including the Supreme Court, for the last quarter of a century, if I am correct on that.

As I indicated to you, section 13 of the Canadian Human Rights Act has been a tool for B'nai Brith Canada throughout its years in fighting hate speech. We have appreciated that arrow in our quiver. We've needed that arrow. It's served an important role in fighting the hate-mongers in this country.

I just want to tell you that next week, B'nai Brith Canada will be releasing its audit of anti-Semitic incidents. Just to foreshadow it, I will tell you that the climate is not a good climate in the field. It is not. Therefore, we need all the kind of weaponry we can have in order to battle the hate-mongers.

However—however—as a progressive human rights organization, we recognize the misuse of this section and the hardships it has brought to individuals. Therefore, at this moment, we support the repeal of the section.

We want to make it clear that we come with a heavy heart. We do not come to the decision lightly. But based on our expertise and the expertise of numerous human rights activists across the country, the time is right for change.

However—as you will hear in a moment from my colleagues—that repeal by itself, without putting into place other safeguards, will be a disservice to the Canadian population in fighting the kind of hate-mongers who exist here.

We are exceptionally cognizant of what is happening in Europe and elsewhere. We try very hard to stop the tsunami of hate from Europe from coming to the shores of Canada. We need your support in ensuring that there are the legal protections to enable us to fight this kind of hatred that is certainly in the country now and, I must tell you, continues to grow.

I'm now going to ask David Matas to present for us.

[David Matas, Senior Legal Counsel, B'nai Brith Canada]

Thanks.

I'll be equally brief, if not briefer.

One of the lessons of the Holocaust is the need for an effective effort to combat hate speech. The Weimar Republic had laws against hate speech. They did not work.

If eliminationist anti-Semitism had been effectively combatted in the years before 1933, the Holocaust would never have happened.

Canada, both federally and provincially, has engaged in a plethora of efforts to combat hate speech. The laws, though, suffer from two extremes. Some laws, the criminal laws, are almost dead letters, rarely invoked. Other laws, the civil human rights laws, are too easily used, indeed abused, harassing innocents and threatening freedom of speech.

The solution that Bill C-304 presents to Parliament is abolishing the jurisdiction to deal with the abuse.

In our view, there is room for a civil remedy, and the civil remedies exist provincially, as well as, at least now, federally. Those civil remedies, though, have been abused, and provincially, if they are going to survive, they are going to need reforms to keep them working.

Some of the abuses we've seen, which lead to the reforms we've recommended and still recommend, are ensuring full disclosure to the target of the complaint, not allowing for the making of anonymous complaints, giving the power toward cost to the target of a complaint, requiring the complainant to choose only one form or venue, and screening cases even where commissions do not conduct cases.

We would hope that the coming abolition of the federal law does not serve as a model for the provinces, but it should be a warning for the provinces that they amend their jurisdictions to prevent them from the sort of abuse that we have seen and that my colleague Marvin will talk about.

It is unsatisfactory, though, to abolish a civil remedy open to abuse and leave standing only a criminal remedy, which is almost never invoked. Obstacles to use of the criminal law need to be removed. Crimes that reform the criminal law should include banning racist groups; giving courts the authority to allow impact statements from victim groups targeted by hate speech, including hate motivation as a constituent element of aggravated offences rather than just an aggravated factor in sentencing; and setting out guidelines for courts and for attorneys general, so that attorneys general, when they're exercising their discretion to consent, have these guidelines. Also, legislating a specific offence of Holocaust denial....

Combatting anti-Semitism means dealing with anti-Semitism as it is today in its modern forms. Ultimately, the subject matter of this committee and our concern is combatting hatred effectively, whether through the criminal law or the civil law. We do have a problem and we do need a legal remedy for it.

Marvin, why don't you add to that?

[The Chair, Conservative, Dave MacKenzie]

Please keep it really short. You're quite a way over time now, but there's only one of you.

[Marvin Kurz, National Legal Counsel, League for Human Rights, B'nai Brith Canada]

Hate speech is a pervasive problem in our society. Whatever remedy we as Canadians use to combat it, it's something we have to recognize hasn't gone away.

Between David and I, we've probably been involved in almost every major hate speech case in the last quarter of a century, going all the way back to John Ross Taylor, an original Nazi—not a neo-Nazi but a Nazi Nazi—who was interred in Canada during World War II because of his vicious, seditious, pro-Nazi sentiments. We thought it would end with the demise of the neo-Nazi movement.

There are a few very brief lessons we've learned from Canada's legislative history of dealing with hate speech. First of all, legislation can work. Between section 319 of the Criminal Code, the prohibition on hate propaganda, and section 13 of the Canadian Human Rights Act, a great many inroads have been made so that the neo-Nazi movement, if not completely destroyed, has been effectively minimized within Canada. That's a great success. And what it shows is that legislation can work and that legislation can balance the interest of freedom of speech on the one hand with the need for equality for all Canadian citizens in an increasingly multicultural country.

At the same time, as we've gone along, B'nai Brith, as a human rights organization, has recognized that even though it's been very effective, there have been problems with it.

Frank has talked about us really agonizing about it over the last year, but we've really been involved in that consideration for more than the last year. It's kind of come to a head in the last year. Even before the Moon report, we met with Professor Richard Moon. I remember that I drove him home after our meeting. We have strong memories of that. We spoke to him.

Some things that are important to recognize in moving forward are that section 13 has been effective, and it has dealt with only the worst of the worst. Even Professor Moon says that. However, we have recognized, and Professor Moon has recognized it as well, that there have been abuses. There have been procedural abuses. When you see a case like Elmasry v. Rogers, where Mark Steyn and Maclean's magazine were brought before three different human rights authorities and three different jurisdictions at the same time until they finally found a human rights authority that would allow them to bring a hearing without any screening, nothing could be more vexatious than that. Because that's what happened in the British Columbia Human Rights Tribunal. David has talked about the provincial authorities.

B'nai Brith itself has been the victim of an abusive complaint before another provincial authority over a similar matter, which was a matter of great procedural abuse. So we're coming to this position understanding those problems. What we're saying to the committee, and hopefully to Parliament, is that if the inevitability of eliminating section 13 is clear, then we need to strengthen our other laws, and I'll leave it at that.

Thank you, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Thank you very much.

We'll go to Madam Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

I also wish to thank our witnesses for taking the time to come to the committee today. I thought what you said was very interesting, all the more so since the three of you, or at least two of you, have been involved in almost all major cases of hate speech.

I want to make sure I understood your position. You would be in favour of amending Bill C-304 and finding ways to reduce procedural abuse. This is your priority. However, if this is not possible, you want us to make changes. But this is not being considered by this committee since we have no such bill in front of us. So you are somehow making an act of faith, hoping that the government will move an amendment to the Criminal Code in order to deal with the shortcomings of section 319 of the Code. I want to be sure I did understand your testimony.

[David Matas]

Excuse me, but I will answer you in English.

Yes, I think basically you've understood it. Obviously, we don't draft legislation. We don't get it through Parliament. Our ideal world wouldn't either support Bill C-304 or defeat Bill C-304, but faced with the choice, which is the choice we have, our choice is support. In our ideal world, we would build a sandcastle that wouldn't look like Bill C-304 or its defeat.

[Françoise Boivin, NDP, Gatineau, QC]

I know enough about law to make a distinction between a civil procedure before a human rights tribunal and a criminal procedure. The burden of proof is not the same, and the content is not necessarily similar. I always thought that in a procedure before a human rights tribunal, there is an education component that has no equivalent in the Criminal Code because the Code's object is simply to accuse and penalize.

Considering where you come from and what you represent, it makes me shiver to think that, in order to protect freedom of expression, which we all value, we should put up with hate speech, as some witnesses told us. This is not a matter of

freedom of expression here. It's heinous expression that is at the core, or should be at the core, of that whole disposition.

[David Matas]

I don't know if I'd put quite the same emphasis.... I don't think we should underestimate the problem of abuse. We're very familiar with the jurisprudence. The decisions on the whole I don't have a problem with, and my colleagues don't. The problem is invoking the process in such a way that it becomes a victimization of the targets.

[Françoise Boivin, NDP, Gatineau, QC]

Then should we amend to make sure that section 13...?

For example, we could say the following: "A proceeding in relation to a discriminatory practice referred to in this section may be dismissed, in whole or in part and with or without a hearing, if the Commission determines that the complaint, or one substantially similar to it, is the subject of another proceeding, including a proceeding before a human rights tribunal established under the laws of a province."

Would it be satisfactory if we go as far as to say that some things can be done if people think that a complaint is obviously abusive and if measures are taken to overcome the abuse factor? As I said to other witnesses, I feel as if we are throwing out the baby with the bathwater by eliminating a remedy that is extremely important even though we need to discourage procedural abuse. Ultimately, the abusers would be the winners.

[David Matas]

My colleague, Marvin Kurz, will say something.

Before he does, I wanted to add that I'm very involved with the international human rights system. I have seen the international human rights commission and then the council totally corrupted by people with an anti-Zionist agenda, to the point where it's become an Israel-bashing organization rather than a human rights organization. I come to the Canadian experience with that international experience, and I see the start of that happening here. Unless we lay in our defences, we are going to see our system internally corrupted in the same way the international systems were. I don't think we should minimize that danger.

[Marvin Kurz]

I have a few more points, Madame Boivin.

I've been to the Supreme Court of Canada a number of times defending section 13 and defending this kind of legislation, and David and others among us have as well. For us to come here like this, having been in the forefront of organizations that have appeared before courts at every level—I spent six years on the case dealing with Ernst Zundel, which at one time was at the Canadian Human Rights Tribunal, the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada at the same time. When Frank Dimant says we come to this with a heavy heart, it's true.

What you're talking about and the kind of amendment you've described is something we've talked about for years, but it hasn't happened. We have no reason to expect that it will.

One of the key things about section 13—and I think you're right about the section 13 that we would like and that we would have liked to have seen, and it's the section 13 that was considered by Chief Justice Dickson and the four-judge majority in Taylor. It wouldn't be seen as having penalties; it wouldn't be seen as draconian. It would be seen as mediative, that there would be mediation available; there would be an attempt to persuade people out of the errors of their ways in a way that the Criminal Code is not set up to do.

You're 100% correct, although it's not as stark a difference as that because we know that, for example, part of the role of a modern police force is almost a mediative role. You call the police to some kind of a dispute and the first thing they're going to try to do is make like Henry Kissinger, going back and forth trying to be the mediator, the diplomat. It's not quite as stark as that.

I think what we have to recognize as well—and this is where B'nai Brith has come in this—and as I've said, in many ways I've led the attempt to reconsider it.... I've tried to speak to my colleagues and other Jewish organizations who have been equally interested in the past, to try to reason through the problems with section 13 and where we go.

I think we have to recognize one thing. There's an expression, “You jump the shark”, and that appears to have happened with section 13, whether for better or worse. For section 13 to work, for the mediation to work, for the idea of section 13 to be a principle that we all can look to—the principles of section 13 are equality, tolerance, not trying to punish somebody for saying the wrong thing, but trying to work together to find a way to have a safe zone for every Canadian. People have lost respect for it.

I'm the last person who needs to tell parliamentarians about the importance of public respect for the law. I've written articles. I've been skewered in the press for things I've said defending that kind of legislation. I have to recognize as well that we're at the point now where the feeling is that because of the abuse of concerns, and there have been real abuses thus far, really at every level, not because the people who are trying to administer the law are trying to be abusive—most of the time they're not. I've spoken to these people—commissioners, provincial and federal human rights commissioners, the lawyers, and the people who are trying to administer the law—and they want to do the right thing.

[The Chair, Conservative, Dave MacKenzie]

I'm sorry, I'll have to cut you off because we're way over time, but I'm sure we can explore that more.

Mr. Rathgeber.

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

Thank you, Mr. Chair.

Thank you to the witnesses from B'nai Brith for the very cogent and measured approach that you're taking with respect to this issue. I understand that it's a divisive issue within the Jewish community. Quite frankly, I was caught a little off guard when you opened your comments by saying you support this legislation. That advocacy and support is going to change the basis of my questioning.

I guess you will agree with me that the current section 13 of the human rights code captures speech that is not truly hateful, that is if one accepts the Criminal Code definition of true hateful speech in section 319, that which advocates actual harm to persons or persons' properties of an identifiable group. Would you agree with me that the current section 13 captures speech that is offensive but not hateful? Would you agree with that characterization?

[David Matas]

The actual terminology in the law is “likely to incite hatred”. The issue that has arisen here is that there is no intent requirement; there's an impact requirement.

As I said in answer to your previous colleague, our concern is not actually with the substantive content of the text, nor with the decisions of the tribunal. We do agree there's room for a civil remedy.

The problem we have with this provision, as with the provincial ones as well, is procedure. There is a lower threshold. There is no attorney general's consent. There's no requirement of intent. Anybody can complain. There are no costs to the complainant. The commission investigates on its own. The complainant doesn't have to appear. It becomes very easy to abuse.

What we have seen is substantive abuse in various jurisdictions, including the federal one, and that's the problem.

[Marvin Kurz]

One thing I've got to add is that the definition of the term “hatred” in both pieces of legislation is the same. It's the definition the Supreme Court used in its trilogy of 1990 cases.

As well, if you look at the Moon report, its first recommendation is to call for the abolition of section 13. He says that the actual cases decided under section 13 are all the worst of the worst.

I remember having a conversation with Professor Moon and going through every case, and he admitted that each one of them was the worst of the worst. Almost every one of them could probably be prosecuted criminally.

The intent under section 13 was to avoid the criminal prosecution, to try to deal with it in a different way and to tell people to stop.

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

I'm very short on time.

Mr. Matas, thank you for your answer, and also Mr. Kurz.

If I could expand on some of the procedural problems, you'd also agree that on a strict interpretation of section 13 there doesn't need to be actual victims. It says it's “likely to expose a person”.

If in the view of some administrator at the Human Rights Commission it's “likely to expose”, without having any people actually complaining, that could also attract the attention of the Human Rights Commission. Would you agree?

[David Matas]

In theory, the Human Rights Commission does have a power to initiate complaints on its own when there is no complainant. That hasn't been, I must say—

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

Sure. But you're familiar with Mr. Warman. Mr. Warman filed complaints on behalf of identifiable groups that he was not a member of.

[David Matas]

Do you want to say something?

[Marvin Kurz]

The thing at the end of the day is that you're asking us now to defend section 13, even though we—

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

I'm asking you to agree with me that it's a problem.

[Marvin Kurz]

Actually, I don't think that's the biggest problem. For us, that's not the problem. There are many, even criminal offences, in which the public as a whole is the victim. If somebody goes around saying that Jews are all thieves, they're attacking....

First of all, whether it's Richard Warman who goes to the Human Rights Commission, or it's Marvin Kurz who's a Jew who goes to the Human Rights Commission, that doesn't change who the victim is. When Richard Warman did what he did, he didn't say he was the victim.

What was important is that it had to be picked up by the commission. And don't forget, a decision had to be made by a tribunal.

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

I have one final question, if I have time, Mr. Chair.

Would you agree with me that true hate speech is so odious that it ought to be captured by the Criminal Code and not by the Human Rights Code?