Madam Speaker, we are here tonight to debate Bill C-304, a bill which, if passed, would repeal section 13 of the Canadian Human Rights Act, thereby eliminating civil remedies for protection against hate speech in this country, particularly as regarding the exploding and assaultive hate speech and incitement on the Internet, of which insufficient reference, understandably given the limitations of time, has been made at these debates.
I do not wish to reiterate that which I have elaborated upon previously in the House and in committee. Suffice it to say that I believe that this initiative, while well-intentioned, is nonetheless ill-considered, uninformed and a prejudicial move in the wrong direction. Simply put, without effective recourse against hate and group-vilifying speech, we are both ignoring and betraying the lessons of history regarding the dangers of assaultive speech. The arguments of some in this place in support of a repeal, frankly, have made a mockery of our constitutional law, arguments regarding free speech and, indeed, the related jurisprudence, in particular Supreme Court jurisprudence.
I note that this debate takes place at an interesting confluence of events. It is the 30th anniversary of the Canadian Charter of Rights and Freedoms, when we celebrate a doctrine that rightly enshrines freedom of expression. The mover of the bill rightly characterized it as a cornerstone of democracy, but the Supreme Court has held, and this is the important point, that it is not an absolute right, although very often the mover has spoken of it as if it were.
It is one where the freedom of expression has to be read in the light of and in relation to section 1 of the charter and the limitations on hate speech and, as the Supreme Court put it, that are demonstrably justified to promote and protect equality, and that is the purpose of this civil remedy: to guard against violations of section 27 and assaults on our multicultural heritage; to implement our international legal obligations where racist hate speech is held to be outside the ambit of protected speech; most important, and this has been missing entirely from the member's appreciation and those supporting the bill, to guard against assaults upon the very values underlying free speech itself, as the Supreme Court has put it, the search for truth, individual autonomy, equality and democratic participation.
We are also in the aftermath of the month of April, which T. S. Eliot famously described as “the cruellest month”. Indeed, we marked in April the anniversaries of the Rwandan genocide, Yom ha-Shoah, Holocaust Memorial Day, as well as the anniversaries of the Armenian genocide and the Srebrenica massacre, all of which began in April. In the United States and other jurisdictions, April has been designated as a genocide awareness and prevention month.
Indeed, the Supreme Court of Canada has itself recognized the dangers of hate speech in the three causes célèbres of the Supreme Court in the Keegstra case, the Smith and Andrews case and the Taylor case, all of which spoke of the danger that this hate speech can take us down the road to such atrocities, reminding us that the Supreme Court recognized that the Holocaust did not begin in the gas chambers; it began with words. As the court put it, “These are the catastrophic effects of racism. These are the chilling facts of history”.
Moreover, B'nai Brith's 2011 “Audit of Antisemitic Incidents” concluded that in the last 10 years there has been an almost threefold increase in reported hate-related incidents in Canada since 2002. I raise this because, as history has taught us only too well, while it may begin with Jews, it does not end with Jews. Anti-Semitism is the canary in the mine shaft of evil which can threaten us all, and so does assaultive speech against vulnerable and targeted minorities, whoever these identifiable groups may be.
While the government insists that these are so-called victimless crimes, the truth is, the courts have found in their harms-based rationale for upholding the constitutionality of such legislation, and indeed, that includes the Cohen commission. The mover spoke as if the Cohen commission did not support this civil remedy. I want to put it on the record that the Cohen commission did support this civil remedy, as it did support the criminal remedy, but realized that these are different remedies by the way in which we address and redress the fundamental threat of assaultive speech, that there is pain and suffering, discrimination and exclusion among those vulnerable communities who are so targeted.
Accordingly, if we are not vigilant in guarding against such assaultive and group-vilifying speech, words can become actions and these actions may themselves have harmful, if not deadly, consequences.
It has been suggested in this debate that somehow free speech is an absolute right or that it ought to be.
I would remind colleagues that even in the United States, the home of the First Amendment doctrine, there are prohibitions against perjury, to protect the right to a fair trial; prohibitions against treasonable speech, to protect national security; prohibitions against pornography, to protect the human dignity of women and children; prohibitions respecting libellous and defamatory speech, to protect privacy and reputation; prohibitions against misleading advertising, to protect consumers. I could go on.
Know that those who have moved this appreciate that in supporting the criminal law remedy they are themselves acknowledging that free speech is not an absolute right.
Therefore, what we are arguing about is not the issue of protecting free speech. We all agree about the protection of free speech. We all agree that it is the cornerstone of democracy. The question is: How do we counteract assaultive hate speech? The criminal law remedy is one remedy but the civil remedy, a 35-year-old remedy, is yet another.
Simply put, the provisions against hate speech partake in this genre of limitations to protect the rights of individuals and minorities against group-vilifying speech and to protect against inequality, and here the civil remedy comes in, resulting from the discriminatory hate practices that reduce the standing and status of targeted individuals and groups in society and indeed to protect, as I mentioned, not only the very values underlying free speech but the very values, as the Supreme Court put it, that constitute a free and democratic society such as Canada.
Some listening may wonder why the Criminal Code provision is not enough. Simply put, a criminal remedy is not a one-size-fits-all option. It is, in fact, a remedy that should be used restrictively and sparingly. In fact, it is only sparingly invoked.
Most important, in addition to the fact that it should be used sparingly, the problem is that it does not allow for alternative, creative or adaptive remedies, such as those requiring education, outreach or engaging with those affected, what I would call a restorative justice approach to combating hate speech, unlike the criminal law remedy which characterizes it as a crime against the state but where the civil remedy can characterize it as a demonstrable harm to the targeted community as a discriminatory practice, as an equality rights issue and that which can only be addressed within the framework of a civil remedy.
None of this is intended to suggest that section 13 of the Canadian Human Rights Act is ideal, appropriate or effective in its present form. Indeed, I and others have identified numerous flaws with it and have made suggestions for its improvement, including amendments I tabled at committee.
However, the issue is that the government refuses to even consider any reform or amendment. Indeed, it asserts that repeal is the only option, ignoring why the section was enacted to begin with, why it is still necessary today and in what ways it might be reformed and improved through principled amendment.
I will outline just a few such options. We could exclude frivolous claims by requiring the consent of the Minister of Justice and Attorney General of Canada before proceeding, not unlike what we do with the criminal law remedy at this time. We could restrict actions so as to allow the commission to dismiss matters that are before it and another tribunal so as to prevent SLAPPs and vexatious efforts, including those of persons who presently, regrettably, under the present law, file the same claim in multiple jurisdictions. We could establish different rules of procedure and evidentiary considerations for the commission to address the concerns that the member who has moved the bill has properly raised. We could change costs and allow for certain types of orders to be mandated. We could appreciate the important role of section 13 in the Internet age.
Indeed, there are a panoply of options on the table but the government flat out refuses to consider any of them.
I want to be clear why I am using the word “government”, as I move to a close, when debating what has been presented as a private member's bill.
It is clear that this has been a government initiative, an element of the party platform as affirmed last June. Government members voted as a block always in committee. They refused to engage on the issue as a whole and refused to accept any amendments.
Indeed, I have to ask why the government advanced this as a private member's bill and not as a government bill. Perhaps it had certain misgivings about gauging this in the matter of public opinion and the like, arguably something it attempted it in relation to Motion No. 312, while also limiting discussion and debate throughout the introduction of this initiative as a private member's bill.
Simply put, the government is, to use the somewhat cliched expression used by my colleague, throwing the baby out, regrettably, with the bathwater. There are many principled reforms that could be made to section 13. Hate speech and incitement are increasing problems in Canada, particularly on the Internet, as a series of scholarly studies remind us, and we must ensure that there are both civil and criminal recourses at our disposal to address and redress these wrongs, as Mr. Matas and Mr. Freiman set forth in committee.
I will conclude by saying that, at the end of the day, the criminal law remedy is in place. It should and is only used sparingly. The civil law remedy is necessary for the protection of all the other values: equality, non-discrimination, protection against targeted minorities and the like. That is how we should go forward—