Justice committee  Let me respond to the second part, because I didn't get a chance to respond before. I agree that it is not subjective. The problem is that the words “likely to expose” seem to invite a predictive judgment on the part of the tribunal. But it's no different from the definition in defamation cases, which I sometimes do in my day job.

Justice committee  No, this have been a hobby horse of mine from the days when I was Deputy Attorney General of Ontario. Surely it would be advisable to have explicit criteria, but that's really administrative law reform writ large. If there could be a tighter control over the criteria for appointment, I don't see that it would harm anything, and it would probably benefit a great deal.

Justice committee  Let me start. Mr. Farber's a far greater expert than I in these matters. The first thing that subsection 13(1) does is it acts as an official denunciation, on behalf of the Canadian public, of this sort of communication. That denunciation may strike some members of this committee as being superfluous, but in these days it may not be.

Justice committee  What we're talking about is influencing the nature of the debate.

Justice committee  No, I don't, unfortunately. First let me say that I have the highest respect for Professor Moon. These sorts of exchanges I think are profitable exchanges, as opposed to the kind of debate and overheated rhetoric that sometimes characterizes these discussions. I think intention actually is a dangerous precondition if we are focusing not on the wrongdoer.

Justice committee  I think I can correct the misimpression. I agree with you that subsection 13(1) is clear as it stands. It does not need clarification. If it were to be clarified, the only clarification I could see would be using the exact words that Justice Dickson used in the Taylor case to explain what hatred means.

Justice committee  I agree that it's not necessary. If someone wanted to put it there, it would not bother me, but it would be very inelegant as legislative drafting. The improvements that are necessary are procedural and administrative in nature. They would give the commission more of a gatekeeper function.

Justice committee  Mr. Levant is naive. Mr. Levant believes that the advances in equality in the 1950s and the 1960s are the end of history and no prejudice is now possible, no discrimination is now possible. He is sadly mistaken.

Justice committee  Absolute privilege, Mr. Murphy.

Justice committee  Let me start with the last first. Of course it wouldn't have. If there were other social forces tending toward it, then no well-meaning legislation could have prevented that. On the other hand, if you look at Europe in the 1930s, there is a very good case to be made that the consistent and incessant demonization of the Jewish people led to a moral anesthesia among the population of a number of countries that allowed otherwise intelligent westernized people to stand by and to look aside as the most horrid acts were perpetrated by a very resolute racist regime.

Justice committee  I think the improvements would help the balance. I would just like to comment that in our constitutional system, freedom of expression always takes place at the balancing level. Our courts have decided that everything that expresses meaning is in fact expression for purposes of paragraph 2(b).

Justice committee  Yes.

Justice committee  Thank you. I won't comment on that hyperbolic introduction. Let me start by giving you the overall perspective of the Canadian Jewish Congress on the matters before us. The Canadian Jewish Congress believes that section 13 is an important resource in protecting vulnerable communities from the harm caused by hate propaganda.