Madam Speaker, I am privileged to rise tonight to speak to Bill C-304 which is before us. My main purpose in speaking today is to ask the question of what happens after this bill, if it passes. I suggest we need to indeed fill a gap, not simply with respect to the fact that gender protection will be lost unless something is done in a hurry, but some of the distinct benefits of civil remedies in this area will also go by the board. We cannot simply rely on the Criminal Code. That is my main message.
It is important to remind ourselves that section 13 has been part of the Canadian Human Rights Act since its enactment in 1977. It was designed to address at the beginning what we now call robocalls, automated repeat calls that disseminate hate messages on the grounds that are protected in the Canadian Human Rights Act. Afterward, Internet websites and their capacity to disseminate, on a grand scale, hate messages were added. As well a problematic section, which everybody agrees is problematic, was added to include, among the remedies under the Canadian Human Rights Act, the possibility of imposing a financial penalty of up to $5,000. That is what we have at the moment.
The question is whether this is consistent with freedom of expression. The Supreme Court of Canada in the Taylor case, an earlier version of section 13, has made clear it is. However, equally important is a second directly related question of whether or not the regulation of mass or repeated hate dissemination is required or at least strongly encouraged by the right to non-discrimination or by the human rights values of equality and dignity that underlie the charter and international human rights law. In that respect, we would do well to remind ourselves of a passage from Chief Justice Dickson, as he then was before leaving the court, in the Taylor case, where he said, in part:
—messages of hate propaganda undermine the dignity and self-worth of target group members and, more generally, contribute to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality.
I was also struck by the testimony of Mr. Mark Freiman, the just-past president of the Canadian Jewish Congress, who appeared before our committee. Among a number of insights that I commend to all colleagues to have a look at, if this issue goes forward after the vote, in terms of what we would do with respect to civil remedies, his testimony is extremely valuable. One of the things he said:
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.
He went on to say:
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.
Therefore, it is really important that we keep in mind that kind of backdrop as to why section 13 was there in the first place and what would be lost in the process of repealing it.
My colleague who has sponsored the bill has been arguing, and has been arguing with a great deal of passion and consistency from his point of view, that the Criminal Code, especially section 319, is all that we need. It is partly where it should be for various reasons and by implication he seems to be suggesting it is effective. Although in committee he did acknowledge that he rather hoped that something might be done with section 319 to make it more effective.
However, before going on that route of accepting that repeal of section 13, the civil remedy side under the Canadian Human Rights Act can be replaced solely by a Criminal Code provision, we should again remind ourselves of the words of Chief Justice Dickson in Taylor.
He said:
It is essential...to recognize that, as an instrument especially designed to prevent the spread of prejudice and to foster tolerance and equality in the community, the Canadian Human Rights Act is very different from the Criminal Code. The aim of human rights legislation, and of s. 13(1), is not to bring the full force of the state's power against a blameworthy individual for the purpose of imposing punishment. Instead, provisions found in human rights statutes generally operate in a less confrontational manner, allowing for a conciliatory settlement if possible and, where discrimination exists, gearing remedial responses more towards compensating the victim.
I will not argue with a lot of the evidence to suggest that may indeed not be how section 13 has been functioning under the Canadian Human Rights Act. I do agree that there have been procedural abuses to the point that many seem to be willing to give up on section 13. However, as my colleague, the justice critic, said on numerous occasions in the committee, we should not be throwing the baby out with the bathwater. Therefore, I, and I hope most of my colleagues, will be opposing this private member's bill, but I recognize that it is likely to pass. Therefore, I think it is extremely important that we keep the record of witnesses firmly in mind for purposes of going forward.
If the bill does pass, we all should be open to some kind of revisiting of this issue to build back up the appropriate protections within the Canadian Human Rights Act or possibly be open to some other civil remedy at the federal level with respect to the telecommunications issues that section 13(1) deals with. Given that there is a one-year delay in the private member's bill before us, we could have some time and some space for that kind of approach, especially if the government were to co-operate. I would personally be very happy to commit resources and time to working in a multi-party way and treating seriously the kinds of suggestions we heard in the committee and the other suggestions that we know must also be out there to make a new federal civil remedy work.
In this respect, it is really important to note that no witness before us, not a single witness, referred to the content of section 13 itself or decisions made by tribunals under section 13 as being the problem. All were supportive of the fact that the actual phraseology and what the tribunals had done with it, almost always limiting themselves to extreme cases of hatred, was fine. However, everybody focused on different versions of a set of procedural problems that had led to abuse, which people felt was very real.
We are in the situation, I believe, of being about to repeal something without anything adequate to replace it. Frankly, the Criminal Code provision, section 319, is not adequate. We heard that in committee. We know that from a bunch of studies. It is not doing the job. Very little is prosecuted under it for a variety of reasons. Basically, the result is we will have a repeal of a civil remedy and a completely inadequate criminal replacement.
It is important to reiterate the point made by one of the witnesses from B'nai Brith, Mr. Kurz, legal counsel, who in one of our sessions was probably the most convinced that this was a fait accompli, that it would go ahead. Therefore, he saw no mileage in trying to have a more complex amendment to the Canadian Human Rights Act through the sponsor with the assistance of the government. However, he did want to emphasize that every section 13 decision was “unassailable” from his point of view. That is really important because some of the questions being asked from within the committee, and I think some of the tenor of my hon. colleague's presentation here tonight, suggests that the real problem is section 13 itself and how it unduly infringes on freedom of expression, which frankly I feel is the incorrect argument. I think it is the procedural and institutional flaws in how section 13 has been enforced that is the problem and that needs to be what we seek to rectify after this bill passes.
We would also do well to recall and heed the words of Mr. David Matas, who also appeared on behalf of B'nai Brith, when he said:
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.
It is not simply the fact that the Criminal Code may be ineffective for what it is intended to be, but that it may not go to the heart of the kinds of reasons we have human rights codes in the first place.
I would like to end by saying that there was quite a bit of goodwill toward the last part of the committee sessions about looking forward to possibly rebuilding a civil remedy. Almost all of the witnesses from B'nai Brith and Mr. Freiman spoke in those terms. I know the government is focusing mostly on possible changes to the Criminal Code, but I think we have to keep open the possibility of a new civil remedy.