The Chair (Mr. Ed Fast (Abbotsford, CPC)):
I call the meeting to order.
This is meeting number 43 of the Standing Committee on Justice and Human Rights. Today is Monday, October 26, 2009.
You have before you the agenda. Today we're continuing our study on the Canadian Human Rights Act, more specifically section 13 of that act.
We have two panels of witnesses today, each one hour. During the first hour we have with us Jennifer Lynch, chair of the Canadian Human Rights Commission. We also have Philippe Dufresne with us. Welcome.
During the second hour we will have with us Bernie Farber and Mark Freiman, from the Canadian Jewish Congress, as well as Professor Richard Moon.
As a reminder to everyone in this room, please turn off your cell phones or put them on vibrate so we don't have disturbances. As well, take any telephone conversations outside the room.
Ms. Lynch, why don't you begin? I believe it has been agreed you'll have up to 15 minutes to present, and then we'll open the floor to questions.
Ms. Jennifer Lynch (Chief Commisioner, Canadian Human Rights Commission):
Thank you, Mr. Chair and honourable members of the committee.
I am pleased to have received the invitation of the committee to contribute to your review of the Canadian Human Rights Commission and the application and interpretation of section 13 of the Canadian Human Rights Act. I would like to introduce my colleague Philippe Dufresne, Senior Counsel at the Commission.
The challenges of ensuring the right to freedom of expression and the right to equality and dignity are not new. The most recent debate has focused on the role of section 13 of the Canadian Human Rights Act and has engaged many Canadians for well over a year.
From the outset, the commission's responsibility has been to lead and inform the debate by providing a comprehensive and balanced analysis of this obviously complex issue. Our appearance before this committee today is an important step in our efforts to fulfill this responsibility.
Parliamentarians adopted the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act to recognize the equal status of every individual in Canada. Parliament's vision for Canada created the framework for the most open, inclusive, and culturally diverse country in the world. Our commitment to equality and dignity has shaped our personal and collective identities. It has contributed to our progress and prosperity. It is part of what makes us Canadian.
This approach to creating a harmonious society is not ours alone. For over 60 years the Universal Declaration of Human Rights has united the world in recognizing that all human beings are born free and equal in dignity and rights. In 1977 the Canadian Human Rights Commission was mandated by Parliament to champion these fundamental values.
Today our act still brings a powerful vision to Canada, brilliantly articulated in section 2 of our act, which states: “The purpose of this Act is to...give effect...to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have”--free from discrimination. This is what inspires me.
The commission provides access to justice so that the most vulnerable may have their voices heard. Thousands upon thousands of complaints have been resolved.
For some people, their quality of life has improved. Here are some examples. Persons with disabilities now have greater access to daily activities. For example, public transportation is now more accessible, bank machines provide audible output, and television broadcasts include closed captioning. Over 700,000 Aboriginal persons now have full protection under our act. Every worker now has the right to be free from harassment in the workplace – whether sexual, racial, or religious. Mothers can raise their families without fear of losing their jobs.
In spite of Canadians’ collective human rights accomplishments, forms of discrimination will continue to exist.
This one area, in particular, requires continued vigilance. Canadians are still the targets of egregious acts of discrimination.
Hate propaganda, sadly, is alive and well. Hateful expression aimed at groups of people continues to pose a threat to the harmony of our communities and undermines equality. Equality is guaranteed in the Canadian Charter of Rights and Freedoms. It is therefore ironic that some point to the same charter as providing an absolute right to freedom of expression. No right is absolute. When rights are in conflict, legislators must find a way to balance those rights.
This debate has already been decided, in part. There are limits on freedom of expression. Canada's libel laws are one example. Canada has agreed, by signing and ratifying international treaties, to place limits on freedom of expression where that expression is hateful. In the 1970s Parliament created the Canadian approach to regulating hate messages in the Criminal Code and with section 13 of the Canadian Human Rights Act. In 2001 Parliament amended the act to include hate messages on the Internet.
The commission has narrowly applied the law in accordance with a Supreme Court of Canada ruling and other jurisprudence. For a message to be prohibited by section 13 as hate, it must involve, and I quote, “extreme ill will”, “unusually strong and deep-felt emotions of detestation, calumny and vilification” that are “ardent and extreme in nature”.
A prominent complaint filed with the Canadian commission in 2007 is a prime example of how the commission has properly applied the law. The complaint was brought against Rogers Communications, owner of Maclean's magazine, by complainants who believed that some content in the magazine constituted hate messaging. The Canadian Human Rights Commission dismissed the complaint, citing that the impugned content did not meet the narrow definition of hate. Let me quote from our decision:
||The writing is polemical, colourful and emphatic, and was obviously calculated to excite discussion and even offend certain readers, Muslim and non-Muslim alike. Overall, however, the views expressed...when considered as a whole and in context, are not of an extreme nature as defined by the Supreme Court in the Taylor decision.
This is the only complaint we have ever received from the mainstream media, and we dismissed it. This clearly demonstrates that the commission does not regulate offensive speech. Any other suggestion is false.
We have witnessed public discourse at its best and at its worst. At its best, the debate has focused on improving Canada's approach to balancing rights. Among examples of the worst is testimony heard by this committee earlier this month. This committee has heard unsubstantiated allegations. Simply put, these are baseless. This committee has also heard the commission and its employees described as “dress-up Nazis, psychologically disturbed, rogue, and brutal” and compared to Saddam Hussein. This does nothing to advance society's thinking on hateful expression.
Specifically--and it must be stated clearly--unsubstantiated personal attacks aimed at commission investigators Dean Steacy and Sandra Kozak are irresponsible, hurtful, and above all, untrue.
I am proud of my staff. The people who work for the commission are dedicated to promoting and protecting equality rights. We have the public interest firmly in our minds and know that we sit in the position between competing sides in every complaint. We will continue to do Parliament's will without fear or favour.
It was with this dedication that the Commission set out to provide Parliament with a complete and balanced analysis of the issue of hate on the Internet.
This past June, following a year-long study, the Commission presented this analysis in the form of a Special Report to Parliament entitled "Freedom of Expression and Freedom from Hate in the Internet Age".
This process began with an independent review of section 13 by Professor Richard Moon of the University of Windsor, a legal expert on freedom of expression. Following Professor Moon’s submission, the Commission released his findings and sought feedback from stakeholders.
After concluding all of our research and consultations, the Canadian Human Rights Commission came to the conclusion that an administrative remedy for hate messages remains a vital component of Canada’s human rights system.
Some have posed the question: Are the Criminal Code and the Canadian Human Rights Act provisions against hate messages both necessary? In our view, the answer is yes.
The two laws address the issue of hateful expression in different ways. The Criminal Code seeks to punish the offender, while the Canadian Human Rights Act seeks to remove the hateful messages.
It is our considered opinion that section 13 of our act provides a needed flexibility in the legal tools available to deal with hateful expression. The Criminal Code, because of its punitive nature, the need to prove intent, and the strict standard of proof, is not effective for every case. Section 13 of the Canadian Human Rights Act provides an alternative where the goal is remedial; it focuses on the message, not the individual.
Our special report to Parliament recommends amendments to section 13 and provides observations concerning the Criminal Code that will improve Canada's ability to remove hate messages.
Make no mistake: hate messages strike at the core of equality. They are the root of intolerance, and at the extreme are the impetus for violence. As Canadians, we cannot waver in our commitment to protecting each and every individual's right to equality and dignity.
I look forward to answering your questions.
Mr. Brian Murphy (Moncton—Riverview—Dieppe, Lib.):
Thank you, Mr. Chair.
Thank you, Madam Lynch and Mr. Dufresne.
We heard the evidence of Mr. Levant the last time we dealt with this matter, and an awful lot of ground was covered. A lot of it was evidentiary and procedural. I would not call it without merit in terms of allegations, but in terms of proof I have no idea--and we have seven minutes.
So I think we need to have a broader discussion about the need--or not--for section 13. We need to have a broad debate on whether there is need to curtail freedom of expression of hate on the Internet. That is the discussion we must have as parliamentarians.
In a curious case of convergence, Mr. Levant seemed to argue that there might be room under the Criminal Code or a revamped human rights regime to protect people from violence that comes from hate. The convergence is with no less a figure than the President of the United States, President Obama. According to what we heard previously, he may be considering moving the United States toward human rights protections that are triggered by acts based on hate that go toward physical harm--violence, if you like.
What we have does not cover that at all. There is coverage for violence or threats of violence, but it's quite a bit short of that. It allows protection for hate, as defined by Justice Dickson in the Taylor case. The valid point is whether the words “extreme ill will” and “calumny”--I challenge anybody in the room to figure out what that actually means--are extreme in nature. We know what it means in essence, but are we not really left with Justice Dickson's words? Justice La Forest from New Brunswick put it very well in his review that we should leave judges to determine what hate crimes are and what hatred is.
But are we stuck with those words? Is there a chance that we need a new reference on the issue because those are older words from a court that was composed differently? When I see the Minister of Justice's legislative assistant in the room, I know that the composition of the Supreme Court is now probably going to become like an American process. We're going to try to figure out what person thinks the way we want about these issues, as a government per se. So it's a very important determination.
Do you think we should go toward what may be intended in the United States? Do you think we should stick with what we have? Do you think we need clarification of what Justice Dickson's words mean today?
Ms. Jennifer Lynch:
Let met state initially that the Canadian Human Rights Commission exists to protect individuals from discrimination and to ensure that equality and dignity are available to every individual. This mandate flows from international law, from the Charter of Rights and Freedoms, and of course, as you've mentioned, from our section 13. Our role is to promote access to justice and ensure that we are an effective part of the administrative legal system and that we are fair and accessible. Hate messages strike at the core of equality and can cause serious harm to society and to individuals by exposing them to discrimination and in extreme cases to violence.
Part of your question relates to the definition of hate, and you're quite right that what we, and the tribunal and the Federal Court, have been doing is relying on the definition provided by the Taylor decision in 1990. That definition makes it very clear that only the most extreme forms of ill will can be found to be hate messaging.
In terms of the application, we're comfortable with how it has been applied. I think the statistics speak for themselves. Since 2001 there have been some 70 complaints brought to the commission on the basis of hate messaging, and something in the area of 22% of these have been found by the tribunal to be hate messages.
Moving a little deeper into the statistics, there have been some 19 cases heard by the tribunal, of which 16 have been found to be hate. A very recent case that dealt with two found that the expression had been hateful but also found that the section would not be applied because of the penalty provision. The final case is one where none of the parties attended the hearing, so the hearing was dismissed.
What we learned from this is that the Canadian Human Rights Commission has been exacting in applying the definition of only the most extreme and ardent forms of expression. The Canadian Human Rights Commission does not regulate offensive speech. No Canadian need be concerned that if they use offensive speech it will be considered prohibited under the Canadian Human Rights Act.
In our special report we have recommended that there be an amendment to section 13 to include a definition of hate that reflects the tried and trued definition that came from the Taylor decision in 1990. It's not that the Canadian Human Rights Commission or the tribunal needs this definition; however, we do realize that it's always desirable when a person can read an act and understand what it means and not develop an unbased fear that it might apply to them in certain circumstances. So it's because of our concern that our legislation be clear to the layperson that we recommend the narrow definition be put in our statute.
Ms. Jennifer Lynch:
In June of this year we filed our special report to Parliament. All members have been given copies of this report, and we did bring some additional copies. In the report we do analyze, of course, Professor Moon's recommendations and we also went through another process where we had other consultations as well and did our own research.
Our recommendation is that section 13 not be repealed. In short, our recommendation is closer to Professor Moon's second option that you mentioned. Professor Moon, who happily is here to give evidence in the next hour and will be able to more specifically address his own recommendations, did suggest that there be a definition of hate put in the statute. The definition that he suggests is one that relates to advocating, inciting, or justifying violence. In the opinion of the commission, and as more specifically described in our special report, we don't feel that the definition should be as narrow as that. We feel that the definition should be along the lines of the Taylor case.
Professor Moon makes other observations and recommendations related to the processes that the Canadian Human Rights Commission might undergo. For example, he recommends that the commission be in effect the only complainant, that individuals should not have the responsibility to bring forward a complaint.
Our conclusion is that we should not take away that right from individual complainants. In the Canadian Human Rights Act there is a section that provides that the commission can bring its own complaint, and in fact that's what we did in the Taylor case in 1990. We find that those provisions still work well.
There are other slight distinctions, but overall I must say that Professor Moon's work greatly assisted the commission. It was thoughtful and well reasoned, and as I said, significant parts of his recommendations are reflected in our report.
Mr. Brent Rathgeber (Edmonton—St. Albert, CPC):
Thank you, Mr. Chair.
Thank you, Ms. Lynch, for your attendance here this afternoon.
I am very confused and concerned about a couple of answers you gave to my friend, Mr. Comartin. You stated that the allegations made against you--and not only in this forum, where the witnesses would have enjoyed some sort of privilege, but also outside this forum.... You have repeated it many times. In fact, one person wrote an entire book dedicated to the subject.
You called them untrue, unsubstantiated, and baseless. My friend Mr. Comartin suggested to you that if that were in fact the case, it would also make them libellous. I agree with his legal analysis. Your answer as to why there will not be any defamation suit filed is that it is because of the cost of prosecuting that litigation. It would be borne by the individuals. It wouldn't be borne by Treasury Board.
Complainants in section 13 complaints cases--section 13 of the Canadian Human Rights Act--don't have that disadvantage, do they? The investigation is done by the commission. If a complaint is filed, and if an inquiry is launched, they don't have to hire legal counsel, do they?
Hon. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.):
Thank you, Chair.
Thank you so much for your presentation. I as well look forward to the document file that you'll be tabling that shows these allegations that have been made are clearly unwarranted and baseless.
I do have a couple of questions. One of them is with regard to two of your recommendations.
On the one hand, you recommend that there be a clear definition of hate and haine et mépris, and that definition should follow the judgment, the use of the terms or the definition of the terms by the Supreme Court of Canada in the Taylor case. Then you as well say that if that happens, the commission should be given a power it does not currently have, which is to be able to dismiss a complaint at its reception based on lack of jurisdiction, because in fact what is being alleged does not meet the definition of hate.
I think that's very interesting. I'll go further and ask why would the commission not ask for specific power so that after it has investigated a complaint and deems that that complaint warrants a decision made by the tribunal...why would the commission not be the only party and actually prosecute, so to speak?
We see in other areas of administrative law where a body has the exclusive right to receive a complaint, to investigate a complaint, and if it deems that the complaint warrants--there is sufficient evidence for there to be a hearing on it--it goes before a separate tribunal, but it's the investigative body, the commission, that acts as the party to the case and actually prosecutes the alleged offender before the tribunal. Why would the commission not have asked for those kinds of powers?
How am I doing on time? Is my question too long?
Mr. Marc Lemay (Abitibi—Témiscamingue, BQ):
Thank you, Mr. Chair.
Thank you, Ms. Lynch.
I am trying to understand, because we have to be careful before we amend a section of an act. I have read the Moon report. Actually, Mr. Moon will probably provide an explanation on this point.
In subsection 13(1), we read, and I quote:
||... to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
Then subsection 3(1) reads as follows:
||3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
I think it would be difficult to amend section 13 as it now reads, because it is protected. We have section 318 of the Criminal Code, against genocide, but there is also subsection 319(1) of the Criminal Code, which provides:
||319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of ...
As well, the courts have held that a public place could be a something on a computer and available on the Internet, because it is public.
I don't understand why section 13 needs to be amended at this time, let alone repealed. What isn't working, since we have section 2 of the Charter and section 319 of the Code?
Mr. Stephen Woodworth (Kitchener Centre, CPC):
Thank you very much, Ms. Lynch, for attending.
I want you to know that my concern is with the principles involved, not with the particular personalities. I'm also grateful to hear the suggestions that surface from time to time from you regarding potential reform and amendment.
I want to begin with your comment that ordinary Canadians do not have to fear. I'd like you to adjust your mindset just a bit, because when I go door to door and I hear about this issue, as I have, I don't regard it as Canadians expressing fear to me. However, I do regard it as Canadians expressing to me a very fierce affection for freedom of expression, and I'm sure you would agree that's a good thing. You correctly put your finger on the issue before us, which is how to balance the limitation of freedom of expression with other concerns.
The difficulty I'm having is that while we may say that the Human Rights Code is not a penal statute or punitive in nature, in fact the consequences of findings under the code are quite punitive at times, ranging at the present time from fines to compensation to lifetime bans on expression. I come from that approach. And having been involved in the judicial system for almost thirty years, I know it makes mistakes, even though we have all kinds of safeguards to protect accused persons: we have a right to counsel, we have rules against hearsay, we have high burdens of proof on prosecutors, we have provisions that are quite tightly defined, we have legal aid, and even with all those safeguards the judicial system makes mistakes.
I think what causes my constituents concern is that their freedom of expression doesn't have those safeguards before the tribunal. It doesn't have those safeguards when it comes to the commission deciding who will be prosecuted or who will not and who will be aided.
For example, when you say that costs should be awarded only in exceptional circumstances, I say to myself, if my right to freedom of expression has been unjustly challenged and I succeed in affirming it, why shouldn't I have costs in every case? Do you think we could make recommendations that would safeguard freedom of expression and the interests of freedom of expression in the tribunal and the commission processes?
Professor Richard Moon (University of Windsor, Faculty of Law, As an Individual):
Thank you, and thank you for inviting me.
I'm quite certain I won't take ten minutes, but it's always easy to underestimate these things.
In a report I wrote for the commission, which was released last fall, I recommended repeal of section 13 of the Canadian Human Rights Act, so that the commission and the Canadian Human Rights Tribunal would no longer deal with hate speech, and in particular with hate speech on the Internet. I argued that hate speech should continue to be prohibited under the Criminal Code.
I took the position that state censorship of hate speech should be confined to a narrow category of extreme expression, that which threatens, advocates, or justifies violence against the members of an identifiable group. In my view, the failure to ban the extreme or radical edge of prejudiced speech carries too many risks, particularly when it circulates within the racist subculture that subsists on the Internet. Because the Internet audience is highly fragmented, it is easy for a particular website to operate at the margins and avoid critical public scrutiny. Hate speech on the Internet is often directed at the members of a relatively insular racist subculture. When directed at such an audience, extreme speech may reinforce and extend racist views and encourage extreme action.
At the same time, less extreme forms of discriminatory expression, although harmful, cannot simply be censored out of public discourse. Any attempt to exclude from public discourse speech that stereotypes or defames the members of an identifiable group would require extraordinary intervention by the state and would dramatically compromise the public commitment to freedom of expression. Because these less-extreme forms of discriminatory expression are so commonplace, it is impossible to establish clear and effective rules for their identification and exclusion. Because they are so pervasive, it is vital that they be addressed or confronted, rather than censored. We must develop ways, other than censorship, to respond to expression that stereotypes and defames the members of an identifiable group.
Finally, I argued that a narrowly drawn ban on hate speech that focuses on expression that is tied to violence does not fit easily or simply into a human rights law that takes an expansive view of discrimination, emphasizes the effect of the action on the victim rather than the intention or misconduct of the actor, and employs a process that is designed to engage the parties and facilitate a non-adjudicative resolution of the "dispute" between them.
The main problem is that free speech interests are affected every time an investigation occurs. Even if the commission dismisses the complaint, the investigation engages the parties and takes eight to ten months to conclude. Because the commission is required to investigate a complaint, unless it is trivial, vexatious, frivolous, or made in bad faith, it is bound to investigate some complaints that are unlikely to proceed to adjudication. As well, because section 13 is located in a law that seeks to advance the goal of social equality through education and conciliation, the commission may be inclined to err on the side of inclusion when deciding whether a complaint should be rejected prior to investigation on the grounds that it is trivial. Human rights commissions may be reluctant to exclude a complaint prior to investigation on the grounds that it is trivial, because such a finding may be seen as downplaying the genuine feelings of hurt or injury experienced by minority group members and will preclude the possibility of a facilitated resolution of the “dispute” between them.
In the report I also raised questions about the appropriateness of relying on private citizens to initiate and pursue section 13 complaints. There are a variety of reasons this is problematic, although the main one is simply that it puts too much of a burden on the private complainant. Hate speech is most often directed at a receptive, or at least interested, audience and is only known to the complainant because she or he has looked for it or stumbled across it. The complainant carries responsibility for the complaint throughout the process, at both the investigation and adjudication stages. In addition to the burden of time and money that a complainant must bear, particularly if the complaint proceeds to adjudication before the tribunal, some complainants have been subjected to threats of violence. We should not expect complainants to bear such a burden.
Searching neo-Nazi or white supremacist websites for hate speech and engaging with individuals on those sites to determine their identity involves ethical challenges that should not be dealt with by private citizens. Hate speech harms the group and the community. It is a public wrong. The state, not private citizens, should be responsible for the enforcement of the law.
There is a serious debate to be had about the regulation of hate speech by human rights commissions, but the debate is difficult and complex and there are many reasonable positions one can take on the issue. I do not agree with those who argue that the commission should be involved in the regulation of Internet hate speech, but I do not doubt their good faith in taking this position. Unfortunately, the most vociferous and indeed the most media-amplified critics of the commission are not interested in this debate. It is easier and it seems more effective to invent injustices and engage in personal attacks.
In a written submission that I believe you have already received, I describe three claims that have been made about human rights commissions and demonstrate how they are either misleading or false. The claims are that the commission has a 100% conviction rate, that commission section 13 investigators have made racist postings on white supremacist websites, and in more general terms, that human rights commissions routinely make, and I quote, “crazy” decisions, the craziest of all being the case involving McDonald's. I'm happy to address these claims during the question period, although I think it would be better if that time were spent discussing the real problems with section 13 and the current process.
In my view, section 13 should be repealed. But whatever this committee decides, it is important that its decision be based on an assessment of the real costs and benefits of the different policy options. The unfair attacks on human rights commissions obscure the real issues and impede serious debate.
Mr. Bernie M. Farber (Chief Executive Officer, Canadian Jewish Congress):
We have ten minutes together? I will take two minutes.
First I want to thank you for inviting us to testify before this committee. The Canadian Jewish Congress has for the last 90 years represented the broadest cross-section of Canadian Jewry. We work to foster a Canada where Jews, as part of the multicultural fabric of this country, live and contribute to an environment of opportunity and mutual respect. We advocate on behalf of Canadian Jewry to advance those objectives, and we work in partnership with other Jewish federations and other ethnic communities across Canada.
In the Jewish tradition, we believe that the tongue has such awesome power that in fact it requires two gatekeepers, the teeth and the lips. It is recognized that words have meaning and that evil words can have, indeed, evil consequences. It is in this light that we welcome the opportunity to present our views this afternoon.
I would like to introduce our national president, Mark Freiman, of the Canadian Jewish Congress. He is an eminent legalist. He is recognized as an expert on constitutional law and human rights legislation. He has just completed acting as special counsel on the Air India disaster, and most pertinent to this particular committee, Mark Freiman was special counsel to the Canadian Human Rights Commission on the Ernst Zundel case, which was in fact the first successful proceeding under section 13 dealing with hate on the Internet.
I'd like to pass the rest of our time to Mr. Freiman in order for him to present the views of the Canadian Jewish Congress.
Mr. Mark Freiman (President, Canadian Jewish Congress):
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. It believes that section 13 is constitutionally appropriate in a free and democratic society, because it deals only with dangerous and harmful speech and is not concerned simply with offensive speech. It deals with dangerous and harmful speech in a way that minimally impairs the ability of Canadians to debate freely important social and political issues, including the ability to take strong and controversial positions.
The Canadian Jewish Congress believes that the Criminal Code, and especially section 319, which criminalizes some aspects of hate propaganda and incitement to violence, is not an adequate substitute for subsection 13(1) of the Canadian Human Rights Act. It also believes that it is not advisable to restrict hate or the definition of hate to advocating violence. That having been said, the Canadian Jewish Congress does not believe that the regime under subsection 13(1) of the Human Rights Act is without issues or problems. It believes that subsection 13(1) and the way it is administered could be significantly improved, so as among other things to weed out frivolous complaints at an early stage, to speed up the process, to better protect the legitimate interests of respondents.
Let me just add a few words of specification to that general framework.
First of all, it is important for us to remember the context. Subsection 13(1) does not deal with speech in the abstract. It does not deal with all written, let alone with all oral, communication. It deals with a single medium of communication, namely the Canadian telecommunications system, notably the Internet and computer-generated telephone messages, what today we call “robot calls.” The regulation of telecommunications is not unfamiliar. On the broadcasting side, the CRTC engages in regulation on the basis of content on a daily basis. The regulation of speech outside of the telecommunications context is also not unfamiliar, as some would portray it as being. The regulation of speech is not confined in our society to prohibiting someone from yelling “fire” in a crowded theatre.
Let me just remind the committee of some interesting examples. We have the law of defamation, which regulates the content of speech, attaches penalties to speech. We have the principle of contempt of court, which regulates speech dealing with the justice system. We have regulation of advertisements addressed to children. We have regulation of advertisements of dangerous products like tobacco and alcohol. We have regulation of the strictest sort dealing with pornography, and most importantly, child pornography, including merely cartoon or even verbal representations. The key in every case is that this regulation is geared to preventing harm and saving society from danger.
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 1930s. Study the Cambodian propaganda in the 1970s. Study anti-Tutsi propaganda in Rwanda of the 1990s. Study the racist propaganda in the former Yugoslavia in the 1990s. You will get the answer.
Does subsection 13(1) of the Canadian Human Rights Act target only dangerous speech, or is it aimed at politically incorrect speech? Ms. Lynch gave you the legal definition of “hate”, and I'm not going to go over it. In my submission to this committee, subsection 13(1) targets dangerous speech. It targets speech that demonizes individuals on the basis of their affiliation with a group. It is doubly dangerous. It is discriminatory because it says people are bad or worthless on the basis of the group they belong to, not on the basis of what they do. And it is doubly bad, because as the definition Mr. Justice Brian Dickson gave for this, it portrays those groups as lacking any redeeming merit.
In my submission, demonization is the key, not incitement to violence, because demonization is the necessary precursor in every case for subsequent violence. If a society wishes to protect itself against the horrors of genocide or violence against individuals based on their minority affiliation, it can't start with the incitement of violence; it must start with the demonization, the denial of any redeeming merit.
Is the Criminal Code an adequate substitute or an adequate basis to protect society from these sorts of dangerous speech? In my submission, it is not. The target of criminal prosecution is the wrongdoer, and appropriately, we set the highest sorts of standards in order to prevent the horror of an unjust conviction and penalization.
The focus of the Human Rights Act is the message itself, not the wrongdoer. Its purpose is to protect society from the baleful consequences of those most dangerous messages. That is an appropriate focus, and it is a focus that allows a procedure that falls somewhat on the other side of the high standards of the criminal law.
Is violence the proper key? I've already said that although incitement of violence is in every case the spur to acts of genocide, destruction, and acts of violence against minorities, it's too late in the process. It is the demonization that precedes it that has to be addressed.
Is the focus of the Canadian Human Rights Act too dangerous and too subjective? In my respectful submission, it is not. Mr. Justice Dickson's definition is very precise, and it aims only at the most dangerous and extreme sorts of speech.
The second point, enforcement of that high standard, is guaranteed by a system of judicial review, up to and including the Supreme Court of Canada if necessary, to ensure that standard is adhered to.
Finally, does that mean the section is perfect? It is not perfect. The Canadian Jewish Congress believes there is great merit in expanding the gatekeeper function of the Canadian Human Rights Commission to allow it to dismiss complaints early on. The Canadian Jewish Congress believes there is great merit in levelling the playing field so there is an opportunity, where people are enmeshed in the proceedings and incur large expenses, for them to be compensated if the case should turn out to be groundless.
We also believe in the need for more specialization within the commission.
Those are my remarks.
Prof. Richard Moon:
All in one minute?
An hon. member: Take your time.
Prof. Richard Moon: I'll work backwards.
I suppose that, because my principal recommendation was the repeal of section 13 and I had a limited time in which to write this, I did not give significant consideration to cost. Certainly, as part of my alternative recommendations, though, if the commission took carriage of the tribunal case, it would seem to me to make much more sense that there be some support provided for the defence of any respondent who was subject to a complaint. I would frame it in those terms.
In terms of Mr. Borovoy's concern, I do believe that at the front of the process the language of section 13 appears vague, but I think the reality is that through judicial interpretation.... There are limits to the ability of a body, any body, to provide a clear definition to what counts as hate speech that ought to be prohibited or regulated, but I think it has been significantly narrowed through judicial interpretation.
With that said, my problem is not so much with the language as with the location of a prohibition of this kind within a process and with its being given over to a body that's responsible for regulating discrimination more broadly. Of course, we have moved over time to increasingly broad understanding of discrimination, away from discrimination as an intentional phenomenon to ideas of constructive and of effects discrimination, in which it makes a lot of sense to sit parties together and to help them understand that perhaps practices they hadn't thoroughly thought through might have certain negative impacts on others. All that makes perfect sense. At the same time, when speaking about the hate speech elements, we have sought to narrow the scope dramatically in order to ensure that we remain committed to free speech.
So my concern is that a body that's principally concerned with regulating discrimination, broadly understood, is given authority to deal with hate speech narrowly understood. There's a tension that operates that leads to at least the investigation of complaints that in the end will almost certainly not go to tribunal and not succeed at tribunal, but in which the process of investigating is itself a burden placed upon parties. That's the concern I have: it has to do with the process beginning in the first place.