Irwin Cotler

[Privilege, November 29th, 2011]

Mr. Speaker, if you would look at my statement on this question of privilege, I said that I had no problem with people engaging in voter identification. I said I understood the practice of outreach. I said I understood that political parties, including ours, engage in issues of voter identification.

The issue is not that because of the calls themselves my work was impeded, calls regarding voter identification and the like. It was that in the course of those calls, my work became impeded by the false and misleading information contained in those calls. That is something very different.

The constituents were not asked, “Do you support or would you support the Conservative Party in a general election?” I could understand that, even though we just had a general election six months ago, but in the realm of political discourse, I could understand voter outreach being done all the time. That is fine. However, that is not how it was put.

My constituents were asked, “Will you support the Conservative Party in the pending or imminent byelection?” There is a fundamental difference. This is not normal political discourse, as the hon. member said. Clearly, this is false and misleading information because there is no pending or imminent byelection. When my constituents replied, “What byelection? We don't know of any byelection”, they were told that the member for Mount Royal had resigned or is about to resign.

That clearly comes within the breach of privilege of sowing confusion in the minds of the voters. It clearly comes within the breach of privilege with respect to prejudicing my standing with the electorate and not only causing confusion, but impeding my work because of the flood of phone calls and emails, et cetera, that my office received. People are asking about this pending byelection and when this imminent byelection was to take place. They are saying, “We didn't know that the member for Mount Royal was stepping down,” or, “We didn't know that he has already stepped down”. That is fundamentally different.

The fact is there may have been rumours, but after 12 years I am still here. In that article he quoted, I said that those rumours have been going on for 12 years. The fact that it emanates very often from the members opposite is something else. They are rumours. Rumours are rumours. I will just say that people can repeat rumours, but it is fundamentally different from a rumour to call constituents in a systematic way and specifically target those constituents, with the effect of sowing confusion in the minds of the electorate, impeding the member in the performance of his functions, and causing prejudice to his standing within the riding. These calls have not abated.

It is important that such a practice cease and desist. I do not think any member of this House should be subjected to those kinds of calls. It is not a matter of the party, although I will say that the former candidate in the riding of Mount Royal when asked if he was involved with this, said, “No, I had nothing to do with it. It was the party. It was the Conservative Party”. The Conservative candidate identified the Conservative Party as being involved. I believed him when he said he was not involved. I equally believed him when he said that the Conservative Party was involved. He identified the party.

Leaving that aside, the whole point here is that this was not in the course of normal outreach. This was a form of prejudicial misrepresentation of false and misleading information. As I said, it falls squarely within the criteria, and we quoted principles and precedents, as to what constitutes a breach of privilege. This is not chilling political discourse for you to rule, Mr. Speaker, that it was a breach of privilege; this will chill false and misleading information that tends to corrupt the political process.

That kind of constraint should be placed so that no member in the House should be subjected to false and misleading information. Again, it was not held out as a rumour. It was stated as a fact, a false fact, but it was held that the member had resigned or was about to resign.

There is not a byelection to be held at some point, as I said, let alone a general election. They were talking about a byelection. They said that a byelection is pending; a byelection is imminent. There was a series of ongoing false, misleading, prejudicial misrepresentations.

I think the Speaker should rule that it is a breach of privilege, not simply in my case, but to protect all members of the House from such false and misleading statements and innuendoes that should not be made inside or outside the House which could prejudicially affect members of Parliament.

[Protecting Canadians Abroad Act, November 25th, 2011]

moved for leave to introduce Bill C-359, An Act to Protect Canadian Citizens Abroad.

Mr. Speaker, I am pleased to introduce a bill to protect Canadian citizens abroad in support of the foundational principle that all Canadian citizens, without discrimination, who are detained, stranded or captured, or who have disappeared abroad, deserve the protection of the Government of Canada.

There are a number of high-profile cases, including those of Maher Arar, Omar Khadr and Abousfian Abdelrazik, and those who were the subject of the Iacobucci commission report--Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, as well as the related jurisprudence--that have underscored the need for legislation. This legislation would set forth both the rights of Canadian citizens as well as the threshold obligations of the Government of Canada and its consular services.

Accordingly, this legislation, the first ever of its kind in Canada, would affirm these rights and obligations, including rights to consular access, consular visits and repatriation; reporting requirements for Canadian officials when they suspect a Canadian detained or captured abroad has been or may be tortured; and requirements that the government request the repatriation of a Canadian detained abroad in situations where there are reasonable grounds to believe that the Canadian has been or may be tortured, is being subjected to conditions constituting cruel or unusual punishment, or is being arbitrarily detained.

I would like to thank the member for Saint-Léonard—Saint-Michel for seconding the bill. I trust it will be supported by all members in the House.

(Motions deemed adopted, bill read the first time and printed)

[Human Rights, November 25th, 2011]

Mr. Speaker, Maikel Nabil is a young Egyptian blogger, one of the early voices of the Tahrir Square revolution, whose words, “the army and the people are of one hand”, symbolized the hopes of the Egyptian Arab Spring. When the military started oppressing civilians, Nabil wrote, “the army and the people are no longer of one hand”, for which he was sentenced by a military tribunal to three years in prison in a process devoid of any legality.

Maikel is now on the 95th day of his hunger strike. He has become a symbol of hope and betrayal of an Egyptian Spring turned Winter, his life hanging by a thread.

I know all colleagues will join me in urging the Egyptian authorities to immediately release him and vindicate the original hopes of the Egyptian Arab Spring.

[Justice, November 24th, 2011]

Mr. Speaker, the Minister of Justice, as all ministers of justice, has a duty to ensure that all government legislation comports with the Canadian Charter of Rights and Freedoms, yet Bill C-10 raises serious constitutional concerns, including the risk of cruel and unusual punishment due to prison overcrowding, gross and disproportionate sentences, overly broad and vague offences, and disproportionate effects on already vulnerable people, such as aboriginals.

Will the Minister of Justice commit to tabling before the House a review of the constitutionality of Bill C-10 respecting these concerns and ensure that none of--

[Justice, November 24th, 2011]

Mr. Speaker, Quebec's justice minister, Jean-Marc Fournier, has repeatedly asked the government to table studies to support Bill C-10, saying “Frankly, I cannot accept that we are making laws on criminal justice issues...guided by just personal observations”.

When will the government table these studies and recognize that bills have to be based on hard facts?

[Iran, November 24th, 2011]

Mr. Speaker, the presence in Canada of Mr. Mahmoud Reza Khavari, who has exercised a leadership role in Iranian banks that have been sanctioned by the United States, the European Union and the United Nations for their financing of Iran's nuclear weaponization program and terrorist activities, is most disturbing.

In particular, Mr. Khavari would have had knowledge of, if not influence over, transactions of such state-sanctioned banks, including those with the Iranian Revolutionary Guard Corps, which emerged as the epicentre of the Iranian nuclear, terrorist and domestic repressive regime.

Canadians are troubled, and rightly so, by the ties between Mr. Khavari and these dangerous elements of the Iranian regime. The government must take action to determine the exact ties between Mr. Khavari and the Islamic Revolutionary Guard Corps as well as the specific nature of his business with the Iranian regime, and take the appropriate measures once the results of the investigation are known.

[Canadian Human Rights Act, November 22nd, 2011]

Madam Speaker, the notion implied in the private member's bill seeks to repeal section 13 of the Canadian Human Rights Act on the grounds that the sanctioning of hate speech dilutes and diminishes freedom of expression, which as I said elsewhere, is the lifeblood of democracy. I agree with the hon. member that this is a bedrock principle and I have always so affirmed.

However, the premise underlying the bill, while well intentioned, is misinformed and misleading. It seems to suggest that freedom of speech is an absolute right, but it does not admit to any limitation, ignoring that all free and democratic societies have recognized certain limitations on freedom of expression. The United States, for instance, is the home of the most robust protection of freedom of speech under the first amendment doctrine. As well, my mentor and professor, the then dean of Yale Law School, Abraham Goldstein, said that freedom of speech is not an absolute right, although people continue to persist that it is.

All free and democratic societies, including the U.S., have recognized certain limitations on freedom of expression in the interest of protecting certain fundamental human values. For example, 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. 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, to protect against those discriminatory hate practices that reduce the standing and status of individuals and groups in society thereby constituting an inequality, and this may surprise the member who sponsored the bill, to protect the very values underlying free speech itself.

I will cite the Supreme Court of Canada cases of Keegstra, Smith and Andrews, and Taylor. In full disclosure, I appeared as counsel in these cases and did so as a proponent of freedom of expression, as one who has advocated for this bedrock principle before the courts. I have written extensively upon it. Hate speech itself constitutes an assault on the very values that underlie freedom of expression.

This promotion of hate speech actually constitutes an assault on that bedrock principle of freedom of expression. Moreover, this is of particular relevance respecting any proposal to repeal section 13. I made this point before the Supreme Court of Canada in the trilogy of cases I referenced earlier.

Hate speech is an equality issue as well as a free speech issue. The promotion of hatred and contempt against an identifiable group results in prejudicial harm to the individual and group targets of that hate speech. This harm-based rationale, as the Supreme Court characterized it, supports the sanction of hate propaganda as protective of equality. As the court put it, the concern resulting from racism and hate mongering is not simply the product of its offensiveness, but from the very real harm it causes. The member for Gatineau illustrated this in her remarks this evening.

Further, referencing international law, these anti-hate provisions were themselves implemented as a domestic implementation of our undertakings under international law, under international treaty provisions, to combat hate speech. Again, I cite the Supreme Court, which said that the protection provided for freedom of expression in international law does not extend to cover communications that advocate racial or religious hatred.

Similarly, the court invoked section 27 of the Canadian Charter of Rights and Freedoms to argue that hate messaging as well constituted an assault on our multicultural heritage and normative principle.

Accordingly, I am pleased to participate in the debate on Bill C-304. The bill would repeal section 13 of the Canadian Human Rights Act. Its effect would be to prevent claims from being brought before human rights commissions, such claims as might protect against group vilifying speech while upholding the freedom of speech and the values that underlie it as well.

I understand that the government has concerns with section 13, but the response should be not to repeal the legislation on the alleged ground that it constitutes an assault on freedom of expression, a principle which I and many members in the House are long-standing advocates, while ignoring the countervailing protective need to protect against group vilifying speech.

Simply put, the solution is not through repeal of the legislation whose constitutional validity has been upheld by the Supreme Court, but to address the concerns and to offer proposals to modify the regime that is now in place. I would urge the government to consider the possible reforms to address any valid concerns which I will outline in my remarks as preferable to outright appeal.

As members may be aware, this very section of the Canadian Human Rights Act is now under review by the Supreme Court of Canada. This debate therefore, if I may say parenthetically, is somewhat premature. We should wait for guidance from this nation's highest court on the scope and ambit of freedom of expression before entering into this debate.

That said, the Supreme Court has already provided much guidance in this area. It has ruled that as a matter of constitutional law, hate speech constitutes an assault on the very underlying principles respecting freedom of expression. The search for truth, the protection of individual autonomy, democratic debate and stability, while protecting vulnerable groups from hate messages, it promotes and protects the fundamental principle of equality.

Even if it should be found to prima facie infringe on freedom of speech, as former Chief Justice Dickson put it in these cases, the infringement may be characterized as a reasonable limit prescribed by law demonstrably justified in a free and democratic society. It is in that context and spirit that I offer the following recommendations.

First, the Criminal Code to which reference has been made with regard to its hate speech derivatives, has a built-in filtering mechanism through the requirement of the consent of the Attorney General of Canada for launching the prosecution. I would recommend a similar filtering provision with regard to the Canadian Human Rights Act.

Second, procedural protection could be put in place to limited complainants to one jurisdiction at a time, rather than having as we now do a barrage of federal and provincial complaints that are instituted against the same individual or group, thereby serving as what has been called a strategic lawsuit against public participation, SLAPP, that can understandably serve to chill speech.

Third, we could add a statutory definition of hatred and contempt in accordance with the definitions offered by the Supreme Court of Canada in the Taylor case itself.

Fourth, we could include a provision under section 41 to allow for the early dismissal of section 13 complaints when messages do not meet the narrow definition of hatred or contempt.

Fifth, we could repeal the provision that allows for the assessment of a punitive sanction.

Sixth, we could implement better procedural safeguards in terms of the trial process and evidentiary standard.

Finally, other reforms the government might consider include allowing commissions to award costs, thereby dissuading persons from bringing forth frivolous matters. As well, the commission could also remove the possibility of an anonymous submission so that the right to face one's accuser is better respected.

In closing, we should be awaiting the Supreme Court decision before debating this. Nonetheless, given the Supreme Court decisions that we do have, the debate we should be having tonight should be regarding how we might reform and structure the human rights commissions to protect freedom of expression while protecting vulnerable individuals and minorities from hate and group vilifying speech rather than committing ourselves to abolishing the entire regime because it has produced results which can be addressed through positive reforms, as I have indicated this evening, which would address the member's concerns.

I would urge the government to rethink its approach and consider some of the reforms I have outlined in my remarks that are intended to protect the bedrock principle of freedom of expression and the values that underlie it, as well as to protect individuals and groups and vulnerable minorities from group vilifying speech.

[Privilege, November 22nd, 2011]

Mr. Speaker, I rise to make an additional submission relative to the question of privilege I raised in this place last week regarding phone calls to constituents in my riding asking them if they would support the Conservatives in the impending, if not imminent, byelection in my riding.

Clearly, as long as I am standing in this place there is no byelection in my riding. Equally, if not more important, I am as engaged now as I ever have been on the issues of the day, both domestic and international, on this the 12th anniversary of my first election in November 1999.

It is not only that the false and misleading information overshadows and overtakes my involvement, whether it be on the domestic justice issues of the day or whether it be on my urgent legal representation of an Egyptian political prisoner, but rather that my constituents hear only the false rumours that I have stepped down rather than reports of what I am in fact engaged in.

While my office has provided the table clerks with a list of constituents who were contacted as well as some of the correspondence my office has received, I rise because there is some new information that I believe must be made known to the Speaker and all members of the House before the Speaker's ruling is made.

I stressed in my first intervention that my concern about this reprehensible practice was not a personal one, but rather one that affects all members of this place.

Indeed, a story that aired on CBC Montreal about this found that some of the people contacted do not even live in my riding of Mount Royal. One Montrealer said in the CBC story, “Somebody told me that they were representing the Prime Minister and they were asking me for my support in the upcoming byelection. I asked him what byelection he was talking about”.

I believe this case study illustrates my point in the sense that the constituent who reported to me that she resides in the riding of Westmount—Ville-Marie said that she was politically aware enough to know that I was not stepping down. However, I can imagine that someone who follows politics less and lives in the riding ofWestmount—Ville-Marie might have been made to believe that in fact the member for Westmount—Ville-Marie had resigned or was planning to resign, so it goes beyond me in this regard.

While I am aware that it is not up to me to make a privileged submission on behalf of that hon. member, I again draw the attention of the House to the pronouncement from Speaker Bosley, reprinted on page 113 of O'Brien and Bosc, which states:

It should go without saying that a Member of Parliament needs to perform his functions effectively and that anything tending to cause confusion as to a Member's identity creates the possibility of an impediment to the fulfilment of that Member's functions. Any action which impedes or tends to impede a Member in the discharge of his duties is a breach of privilege.

Indeed, while I contend the practice has breached my privilege, I believe it has also, at least in this instance, breached the privilege of the member for Westmount—Ville-Marie, as it would also breach the privilege of any member whose riding is so targeted or whose constituents receive such calls.

I say this, lest there be any confusion, that we all understand that political parties engage in fundraising, outreach and the like when Parliament is sitting. Such actions are perfectly permissible provided the rules are respected, the law is followed, and no privilege is breached. This practice, however, breaches my privilege by implying that I am not in this place and fulfilling my duties, as I could not be if I had indeed stepped down. As I said, it causes confusion in the minds of my constituents as to whether I am currently their MP and what in fact I am doing in this place.

Moreover, in the case of calls outside my riding, it may cause confusion to the electorate in other electoral districts as well.

This is far different from the usual party activity when there is no election. It is one thing to do a general fundraiser, as many members do, or even send literature, although as Speakers have ruled in the past, and in the case of my riding, this too may breach a privilege in certain situations.

The problem is that these misleading calls misrepresent an alleged imminent byelection. While the notion of an impending byelection may drum up support for it, it implies a sense of urgency. Stating that there is a byelection, in effect, implies a great deal about the member presently serving or, indeed, if he or she is even serving at all. Indeed, it implies that he or she is not serving and will not serve much longer.

Thus, while I wholeheartedly welcome disagreement and debate about my politics and positions, and this is a fundamental activity that must be protected in a free and democratic society, I must reject any assertion or implication that I am not here in this place acting as I should and advocating on my constituents' behalf.

Indeed, I have been in committee with hon. members on the other side in all parts of the House from 8:45 a.m. today, exiting only for question period and this statement, and will be there until midnight tonight and tomorrow as well to propose my amendments to the crime bill, Bill C-10.

This is the important point, and I do not wish to sound self-serving in any way, but all this gets overshadowed and forgotten if my constituents do not think I am even here and it overtakes them finding out what in fact I am doing when I am here. In fact, the press tends to only ask me questions about these phone calls without seeking to understand positions I may be taking on other compelling issues of the day in concert with members of the House.

Further, we now have some new information about the source of these calls. Whereas in my initial submission I identified the firm, Campaign Research, ties to the Conservative Party have since become clear. Indeed, the person who was the Conservative candidate in the last election in my riding and who was rumoured to be candidate in the imminent byelection, though I stress again, should any constituents be watching, there is no byelection, imminent, pending or the like, he said, “I have nothing to do with it, it is a party thing”.

That is a quote in a document presented to the table officers, which I will provide to any members who may wish to see it.

Further, news reports cite Conservative Party spokesman, Fred DeLorey, saying that the party “does not comment on operation matters”, when asked, which, to my mind, implies some level of involvement.

While I still believe the matter constitutes a prima facie breach of privilege and, as such, should be referred to the appropriate committee for inquiry and investigation, I believe it is now imperative that the committee be given the matter to investigate given that there are obviously individuals who could be called as witnesses on this matter.

Indeed, Mr. Speaker, as your predecessor once noted in 2007, though I suspect that the comment may have been made partially in jest, and I so characterize it:

...I hate to deprive the Standing Committee on Procedure and House Affairs with an opportunity to examine witnesses on a question that I know would thrill the members of the committee.

Whether it is thrilling or not, I do not know, but I know it is sufficiently serious to warrant referral.

Should the committee find that the practice is indeed a breach of privilege, fines could be imposed for making such calls, individuals who ordered them might arguably be found in contempt of the House or, short of this, and I believe it would be in line with the established way privilege matters work, those responsible might acknowledge that the practice occurred on their watch, apologize for having engaged in it and the damage it has done, and all parties would undertake not to engage in such behaviour.

This would establish a welcome precedent that in the view of the House it is not proper for anyone to tell one's constituents that a member has resigned or is resigning when he or she remains a quite active and involved member of this place.

I have one last point. Unless the government plans to break its own election law and dissolve Parliament, the next election is clearly not impending or imminent as is being implied to my constituents, and, indeed, at such time it would then be a general election and not a byelection.

On the point of byelections, O'Brien and Bosc note on page 189 that byelections only occur when there is a “vacancy in the representation”, and further, precisely on page 241, that:

A person ceases to be a Member of the House of Commons when:

that person dies;

that person resigns his or her seat;

that person has accepted an office of profit or emolument under the Crown;

that person has been elected to sit in a provincial or territorial legislative assembly or on a municipal council;

the Member's election has been overturned in accordance with the Canada Elections Act; or

the House has, by order, declared that the Member's seat is vacant and has ordered the Speaker to address a warrant to the Chief Electoral Officer for the issue of a writ of election for a new Member.

At the risk of reiterating the list, I have mentioned the list only so that it would be clear that none of these items accord with the present circumstances or my circumstances in any way.

Mr. Speaker, I assure you that there is no pending, let alone impending, byelection and all calls to the contrary are false, misleading and prejudicial to the workings of this House, to my constituents and to myself.

[Foreign Affairs, November 22nd, 2011]

Mr. Speaker, as one committed for some time to expanded sanctions on the Iranian regime, particularly in the financial and energy sectors, I am pleased that the government has now acted. However, as the government knows, the Iranian Islamic revolutionary guard corps has emerged as the epicentre of the nuclear weaponization program of international terrorism from Argentina to Afghanistan and massive domestic repression.

Will the government list the Iranian Islamic revolutionary guard corps as a terrorist entity under Canadian law as unanimously recommended also by the foreign affairs committee, which tabled its report in the House?

[Sudan, November 22nd, 2011]

Mr. Speaker, while we celebrate the independence of South Sudan, this should not obscure the triangular threat and assault by the Khartoum government, including the onslaught against the Nuba Mountain people in South Kordofan; the invasion of Abyei, with the denial of its independence and the driving out of the Dinka African tribe; and the attacks on the Blue Nile; the whole with a view to creating a new north-south border incorporating the southern oil fields in the north, while the violations in Darfur continue unabated.

Accordingly, we call on the militarized regime in Khartoum to cease and desist its ongoing assaults and criminality. We call on the Canadian government to list the regime as a terrorist entity, and to work to bring the indicted war criminals, President al-Bashir of Sudan and Military Governor Ahmed Haroun, to justice.