Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 6 - Evidence
OTTAWA, Thursday, November 20, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-5, to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts; and Bill C-220, to amend the Criminal Code and the Copyright Act (profit from authorship respecting a crime), met this day at 10:48 a.m. to give consideration to the bills.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I see a quorum. I wish to welcome this morning witnesses from the National Capital Alliance for Race Relations.
Please proceed, Mr. Friedman.
Mr. Rubin Friedman, President, National Capital Alliance for Race Relations: Madam Chairman, thank you very much. We are grateful to have the opportunity to address this Senate committee regarding proposed amendments to the Canadian Human Rights Act.
The National Capital Alliance on Race Relations is an umbrella organization, a coalition of individuals and organizations which tries to promote better race relations, better inter-group understanding and to combat racism in all its forms.
We have had a lot of experience in dealing with issues such as employment equity. We have had a long-standing relationship with the Human Rights Commission and, thus, have a great interest in the Canadian Human Rights Act.
[Translation]
Allow me to quickly introduce my colleagues to you. Henri Pau is a chartered accountant. Previously, he headed up the division which deals with employment equity at the Human Rights Commission. Mrs. Yuen-Ting Lai is a native of Hong Kong and has lived in Canada since the 1970s. She holds a Ph.D. in Philosophy and has taught in several universities throughout North America.
I am the Director of Government Relations for B'nai Brith Canada and a former official with the Canadian Human Rights Commission.
Generally speaking, we support the proposed changes to the act. However, we feel that further changes are warranted in the short term. Firstly, we propose:
[English]
-- a legal obligation of duty to accommodate the needs of people who are protected under the Canadian Human Rights Act. This would be added to the act.
Requiring employers and others who provide goods and services to accommodate the needs of disadvantaged groups as a "duty" goes beyond the issues of disabilities. The cultural and racial backgrounds of Canadians diverge widely and their needs have been met unevenly. We believe this amendment would require employers to address issues such as accommodating religious observances in the workplace.
In this particular part of my presentation, I speak also as the representative of B'nai Brith Canada and as president of NCARR. The courts have already ruled in a number of cases that there is some kind of duty to accommodate. We feel that this would reinforce rulings of the past and would, perhaps, make it a little more explicit. Many people are looking for guidelines on what "accommodation" actually means.
I would repeat the same thing that I said in terms of hate propaganda. This represents also the point of view of B'nai Brith Canada. The Canadian Human Rights Act already prohibits hate propaganda. In particular, it has measures which allow it to intervene when there are hate messages delivered over the telephone. Under the current proposals, people protected by the act who are the specific subject of telephone messages that promote hate would be eligible for compensation.
The Canadian Human Rights Tribunal would also have the power to impose a financial penalty on the operator of the line. Our position is that we support the need to directly compensate those adversely affected by hate propaganda. Combined with the increase in awards for compensation for pain and suffering, this should further the deterrent effect of the act.
As for the penalty of the operators of hate messages, any move in this direction is welcomed by NCARR. We remain seriously concerned about the spreading of hate over the Internet, and we support a coordinated effort to address this issue. For example, the act is so specific that it may not be able to be used in the case of an Internet service which is delivered by cable as opposed to telephone lines. That is an issue which needs to be examined.
In addition, we find that the jurisdictions in the government that deal with hate propaganda are diverse and do not always coordinate well. We think that the Canadian Human Rights Commission is the government agency with the greatest expertise in this area, and it has the best track record in dealing with the issue. We would strongly recommend coordinating jurisdictions and/or centralizing jurisdictions through the Canadian Human Rights Commission.
At this point, I would like to pass the microphone to my colleague, Ms Lai, who will be talking about multiple grounds and reporting relationships.
Ms Yuen-Ting Lai, Board Member, National Capital Alliance for Race Relations: Madam Chairman, I have a correction to make before I continue. I have never been director of government relations, although it would have been very nice. When I was working at an arm's-length agency, I was a senior member of the research division.
I wish to talk about multiple programs and the proposal in this bill to recognize that individuals may suffer discrimination on a number of grounds at the same time. That is a wonderful proposal. It is high time that it becomes possible for an individual to file a complaint on multiple grounds. With regard to filing a complaint presently, if there is more than one ground the individual must go through more than one tribunal process. NCARR applauds this amendment.
Many of our members belong to the so-called "double jeopardy" group, being both female and members of visible minorities, for example. If a member of this group also has a disability, she then comes under triple jeopardy. She then belongs to the group which needs the greatest protection under Canadian law. Without the proposed amendment, current rules would require such a victim to go before three tribunals.
In terms of reporting relationships and the proposal that the Canadian Human Rights Commission would report directly to Parliament, we think this proposal is very timely, too. We strongly support the move to give the Canadian Human Rights Commission greater authority and independence by having it report directly to Parliament. Not only is this important to all Canadians, but we welcome it as a clear signal to the rest of the world that Canada regards human rights as paramount. This is, indeed, a beacon in a world fraught with human rights abuses.
Mr. Henry Pau, Human Rights and Employment Committee, National Capital Alliance for Race Relations: Madam Chairman, I would like to deal with a couple of specific issues involving the Canadian Human Rights Act and the structure of the tribunal system, as well as the granting of awards for pain and suffering.
First, in terms of establishing a more permanent tribunal, we disagree with the current method of picking names out of a fairly long list of individuals to sit in judgment of discrimination cases. We support a proposal to create a small, permanent human rights tribunal to replace the existing system of ad hoc tribunals and review tribunals. NCARR welcomes the establishment of a permanent tribunal system which we expect would provide greater efficiency with less delays in processing complaints.
One of the greatest obstacles in accessing the protection of the act is a very lengthy period, often in terms of years, in obtaining justice under the present tribunal system. This is not just a case of justice delayed; it is justice denied.
However, a victim of discrimination often considers the remedy to be worse than the offence itself and refrains from calling on the protection of the law to which that person is entitled. Because the complaint process is, by its very nature, confrontational and antagonistic, the respondent, especially an employer, naturally regards the filing of a complaint as a hostile act; thus, a complainant's life is effectively put on hold until the case is resolved, despite prohibitions against retaliation and intimidation.
Emotionally, when one files a complaint, one is required to endure many months, even years, of uncertainty, insecurity and disruptions to both work and family life. It is of little consolation that the situation is just as uncomfortable for the respondent.
This is what we call the chilling effect of the complaint-driven process and, for this reason, any move to improve the efficiency and thereby shorten the process should be made without delay, in our view.
From another viewpoint, human rights issues are becoming increasingly complex. Mr. Friedman just referred to the problem with the Internet. That is a typical example of technology creating a whole new complexity to the problem of hate propaganda and how to deal with it. The present system that we have for dealing with cases not only requires that the tribunal members be acquainted with the specific technical issues, often through expert witnesses, but such expertise, very often acquired at great expense to the taxpayers and to the contending parties, stands to be lost once the decision is rendered and the tribunal becomes functus, i.e. disbanded, while another tribunal may have to deal with similar issues very shortly and need to go through a similar briefing process. It is, if I may add, a bit of a waste.
In support of a permanent human rights tribunal, we would note that other well-regarded quasi-judicial administrative tribunals -- two of which I worked with over a number of years, the CRTC and the National Energy Board -- already have, in effect, a permanent tribunal system with a fairly stable body of commissioners and board members dealing with highly technical issues which they must address quite regularly. We believe that a similar permanent body of decision-makers would also be able to handle human rights cases much more expeditiously for the benefit of all concerned.
Regarding awards, it is proposed to raise the current maximum limit of $5,000 on compensation for pain and suffering, or for wilful or reckless discrimination, to $20,000. NCARR endorses the increase in the limit from $5,000 to $20,000, even though we would prefer to have an open-ended provision under which the tribunal would be free to assess compensation on a case-by-case basis, taking all circumstances into account. We favour an open-ended award, especially in connection with a more permanent tribunal of decision-makers, because we are also cognizant of the risk of inconsistencies in the amount of compensation. However, we feel that a more permanent body should diminish this risk of inconsistency in terms of the awards.
Finally, in relation to the amendments to the Canada Evidence Act and the Criminal Code, while NCARR is not directly involved in issues concerning persons with disabilities, we are nevertheless supportive of the amendments to accommodate the special needs of this group and, indeed, of all disadvantaged groups in our society. Our philosophy is that an inclusive society must provide adequate and equal access to the justice system for all its citizens. Equal treatment is not sufficient where disabilities or cultural or racial differences stand in the way of equal access. Special needs should be accommodated.
The Chairman: Thank you for the very encouraging submission about this piece of legislation.
Senator Kinsella: It is good to see my friends from the alliance with whom I have worked in the past. Is your alliance satisfied with the level of priority which the Canadian Human Rights Commission gives to its anti-racial-discrimination responsibility under the Canadian Human Rights Act?
Mr. Friedman: Our organization is constantly pushing the Canadian Human Rights Commission to take an active stance in that area. We are cognizant of the fact that they have other competing areas. We would like to see more attention paid to the issue of anti-racism and discrimination.
Senator Kinsella: We received testimony from the chief human rights commissioner that their budget is about $14 million per year. She was unable to tell us what percentage of that budget would be assigned to combating racism by adding this new responsibility to the Human Rights Commission -- a needed amendment; a needed area of egalitarian human rights legislation, in my judgment.
Does your alliance have any concern that this added responsibility to deal with reasonable accommodation for persons with disabilities will lessen the amount of attention that the Human Rights Commission will give to issues of combating racial discrimination?
Mr. Friedman: We have an ongoing concern about the level of resources available to the Canadian Human Rights Commission. For instance, in my submission, I mentioned we are very interested in consolidating jurisdiction on hate propaganda within the commission. However, we would be very hesitant about doing that if there were no additional resources that went along with that consolidation.
We have the same attitude with respect to increasing responsibilities. We are very concerned that it is not always possible to increase responsibilities, to increase the mandate, without adding resources.
Mr. Pau: Perhaps I could add a word from my own experience of having worked for four years with the Canadian Human Rights Commission. Budget constraints have always been a problem and, several years back, the commission was saddled with a very heavy case backlog, which they tried valiantly to resolve. I think the Ontario commission also had the same problem. That is why, in our submission, we discuss making the tribunal system more efficient. There is a long lead time before one gets to resolving a complaint. The limit on resources is a major constraint.
The other thing I would like to add is that the Canadian Human Rights Commission has been charged with the enforcement of the new Employment Equity Act which is in itself a separate act but which has serious implications in terms of its workload. The commission is supposed to audit in excess of 600 employers to ensure that they comply. We have a concern about the capability of the commission, given the financial constraints, to do an efficient job.
Senator Kinsella: Madam Chairman, I should like to explore this further. We have witnesses who have a great deal of experience in the area of combating racism. We have only one agency of the Crown which has legislative responsibility and that is the Canadian Human Rights Commission. As you will recall, the Canadian Race Relations Foundation, which received a $25 million endowment, has no legislative instrument to use in combating racism.
I believe that honourable members of this committee would be tremendously assisted in their study of this bill if the witnesses could at least give us their sense of the quantity of the resources that ought to be assigned for combating racism and of by how much that resource will be reduced in combating racism by adding another responsibility, albeit in a very important area. As I have said, they have $14 million.
Can you give us your estimate of the impact of these changes?
The Chairman: Take a guess.
Mr. Friedman: I would not like to guess. I think we can only say that it will be an important impact. We cannot dictate in specific dollars and cents how much money the government should spend on each thing. We are, in a sense, divided. You heard how positive we were about the substance of what is in this act, but we are divided in terms of the portion of resources that is given to it.
There is always a possibility that someone is taking the different groups, all of which have needs, and playing them off against each other. This is something of which we are very cognizant. We do not want to say that more should be spent on one thing and less on the other. Both issues are very important and our society and government must come to terms with them. We would hesitate then to put specific dollar figures on this. All these issues are important and we want to ensure there are enough resources to deal with all of them.
Senator Kinsella: Would your alliance favour the Canadian Human Rights Commission establishing a special race relations panel within the organization of the commission, somewhat like in the Ontario Human Rights Commission where one of the commissioners was the race relations commissioner?
Mr. Friedman: As I say, there is a certain amount of expertise in the commission, and it would certainly help if that expertise were consolidated. That is our whole proposal, in fact, with respect to consolidation within the commission itself.
Senator Beaudoin: Mr. Pau, I am not sure that I understood you correctly. In criminal law we have minimum and maximum sentences. However, in civil law or common law, when there is an action in damage we usually do not have a ceiling on the amount of damages that will be awarded by the court or the administrative tribunal.
Do you suggest that we should have such a ceiling, or do you leave it open?
The Chairman: I believe they said they wanted it off.
Mr. Pau: I will try to clarify that. The proposed amendment is to raise the $5,000 limit to $20,000. It is more akin to a civil law situation where someone would have to make a decision based on the circumstances of the case. We maintain that there should be no limit, but raising it from $5,000 to $20,000 is a step in the right direction.
Senator Beaudoin: In your opinion there should definitely be no limit?
Mr. Pau: That is right.
Senator Beaudoin: That is my reaction as well.
Senator Gigantès: My heart is on your side. You said, Mr. Pau, that all special needs must be accommodated. Are there no limits?
Mr. Pau: I should clarify that. We should accommodate special needs where circumstances warrant. One must use common sense. The limit should be that special needs will be accommodated unless it can be shown that to do so creates an undue burden on the person providing the service.
As an example, if we suddenly required a major bank with thousands of branches across Canada to widen all their doors to accommodate wheel chairs, that could be an unreasonable burden. However, we could require each bank, when it builds new facilities, to ensure that the doors are wide enough to allow a wheelchair to pass through.
Senator Gigantès: That was not really my point. I have no quarrel with you on that. To use a specific case, two years ago there was a debate on CBC radio involving two women. Both were Muslims; both were educated in Canada. One woman was a physician. Both were arguing in favour of sexual mutilation of young girls.
If I attack those two people as being barbarous, am I guilty of discrimination because I do not take into account what they consider the special needs and customs of their beliefs?
Mr. Pau: You are dealing with an extremely sensitive subject.
Mr. Friedman: This is a subject with which I have dealt before. The answer for us is that there are limits indicated in our Charter of Rights and Freedoms. One always speaks of the Charter of Rights and Freedoms as if it means there is a free-for-all. However, charters of rights and freedoms are also charters of obligations, charters of what people must respect. I believe that those values are embedded in our Charter.
In addition, Canadian courts have always balanced particular articles of the Charter against other articles of the Charter, because there are some instances where they do not always go down the same stream. I think that is the correct way, in terms of our Canadian tradition, that we would balance one thing against the other.
I would think that, in this particular case, the balance will very clearly be in not allowing that particular custom in Canada.
Senator Gigantès: But what about my attack and the use of the word "barbarous"?
Mr. Friedman: I would have suggested to you that there may be another way of talking about it. Simply put, it is a question of how one communicates with people rather than whether one agrees with them. After all, these people have grown up with that custom. It is something they may have integrated into their value system. They may not all immediately see the correctness of your point of view. That does not mean they are right, and it does not mean that we should not work at bringing them on board.
I can understand calling the practice barbarous. It is my own natural, immediate reaction, but we always look for other ways to express it.
Senator Gigantès: If I had shown your wisdom and patience through my life, I would have done better.
Senator Pearson: I think you could now tell them that, under Bill C-27, it is illegal.
Senator Gigantès: They still do it.
Mr. Friedman: I hope they do not do so in Canada.
Senator Gigantès: Oh, yes, it happens in Canada.
Senator Doyle: I would like to make a distinction between actions taken through the Canadian Human Rights Commission and actions that a few years ago we would say were subject to civil action in the courts. We all know that suing people in the civil courts, particularly suing corporations, is very expensive.
Clearly if someone has a choice, they will prefer to take their cry of discrimination to the Human Rights Commission which does not charge any entry fee and which is arguing presently for no limit on awards.
How do you take care of that blurred area of a civil right to civil action?
Mr. Friedman: You make a good point in the sense that there is nothing to prevent a person from pursuing both avenues simultaneously.
Senator Doyle: The issue of money is there.
Mr. Friedman: Yes, except money.
In the best of all possible worlds, we would like to see companies set up their own mechanisms for dealing with these issues in a positive and sensible way.
I am receiving fewer complaints about street racism, insults on the street and attacks on the street; but I am receiving many more complaints from people who tell me that they hear racist jokes at work and that no one takes them seriously. If they hear a joke about Black people and they are not Black themselves, the common response from their manager is: What do you care; it does not affect you?
This is still happening fairly extensively, even in companies where employment equity is very well observed and where representation is excellent. There is still this issue of atmosphere in the workplace which we have not addressed. I think the companies themselves should deal with this issue, otherwise our Human Rights Commission could be overburdened by complaints of this kind in the future where many people are disturbed by what is happening in their particular workplace, but there is no avenue or mechanism for them to pursue it within their own environment.
I cannot come to grips at the moment with your entire question. I know there is an issue there. I have not thought about it before and settled it in my own mind. Perhaps other panelists will want to address it.
Senator Doyle: I would like to move on to deal with the special problems of aging, but I will leave that for the second round.
The Chairman: I have a question regarding the non-identifiable victim amendment that is included in this bill, proposed section 23.2. Some institutions -- for example, banks -- claim that they need all the particulars, including an identifiable victim, before they can put forward an appropriate defence. How does your group feel about including the non-identifiable victim clause in this bill?
Mr. Friedman: It is very important for the reason I mentioned before. Quite often it is people complaining about things that are said about other groups. They are not seen as the direct victim because they may not belong to the group; they just do not like racism. They do not like racism in the environment. It makes them feel uncomfortable. It makes them feel as if they do not belong. That is the issue we need to address. It is a very big issue given the feedback I have been receiving.
I have not figured out yet how to advise them. If they push the complaint too far, they put their career in jeopardy. They are not a victim in the sense of belonging to a disadvantaged group.
How do they complain to the Human Rights Commission? It is a very nebulous area, and the more clarity that can be brought to this area, the better.
The Chairman: Do you feel this clause brings enough clarity?
Mr. Friedman: There is always room for improvement. I think it is a positive step. The bottom line is that companies themselves should be doing things to avoid having so many cases brought forward.
Senator Doyle: I am not sure it is fair to ask you for answers to a much larger problem. I am referring to the problem of discrimination -- and I do not think there is any other word for it -- in the workplace against people in the 40-to-50-year age group. By the time you get to be my age, you can take care of yourself. However, these people are being told that they should move on and make room so that younger people can show what they have to offer. They are told their jobs have been phased out, yet the company will go and hire a young person the next day.
Mr. Friedman: There is a clear tendency in society to do that. We need only look at all the public servants who recently left the public service. What was their age range? How many people in the public service today are over the age of 50? How many are over the age of 52? You will find, in fact, that the answer is very few.
Along with the elimination of all those people goes the loss of a certain kind of corporate memory. Those people face many challenges in finding alternate employment, not only in the government. We merely have to look at manufacturing or any other domain. What you are saying is very true, but it is a very large social issue.
Senator Doyle: This is a new social issue.
Mr. Friedman: Yes, it is new. I do not know whether we can yet deal with that under the terms of the Canadian Human Rights Act.
Senator Doyle: If someone from this age group came into your office tomorrow and described this as happening to them and provided proof of their qualifications and their continued good health, how would you advise that person?
Mr. Friedman: I would suggest suing for wrongful dismissal. The settlements in that area are increasing.
Senator Kinsella: In Bill S-5 on page 9, clause 16 proposes to amend the bill by adding section 16.1 regarding to the collection of information which relates to the prohibited grounds of discrimination. That would also include information on race. The new section would read:
It is not a discriminatory practice to collect information relating to a prohibited ground of discrimination if the information is intended to be used in adopting$a special program, plan or arrangement under subsection 16(1).
Subsection 16(1) is the affirmative action provision.
The questions I have around that relate to affirmative action to combat racial discrimination, whether individual, unequal treatment or systemic. Do you think that amendment is necessary? If so, why? How many programs of affirmative action which fall under the Canadian Human Rights Act have been successful?
Mr. Friedman: This proposed section gives explicit direction on something which has caused concern. We have heard recently about how hyphenation is dangerous to your health. Somehow it makes you sick if you have a hyphen in the way you think of yourself.
Much of that mood has spilled over into concerns that people have about collecting that information. In addition, we all have a general concern, not about the collection of such information but about how such information is ultimately to be used. Its use can be benign or it can be dangerous. It depends on who has the information and how they are using it.
Our concern has always been not only about the collection of information but about how available the data is. Who can get access to it?
Right now, Statistics Canada collects a lot of information to which only people with sufficient money can have access. Every time you ask Statistics Canada to do a cross-tab, it costs money. It becomes impossible to find out anything unless you have sufficient funds to pay for it.
In this particular case, many people who are visible minorities are very reluctant to identify themselves because they are very concerned about what that means. What is the implication? If employment equity has a bad name in a company, they will be reluctant to identify and participate in a program because they will know they are being tagged as someone who got ahead unfairly; that they were promoted not because of their competence but because of their colour. People are very concerned about such things, and it is something that we need to make explicit not only in the law but in our communications with everyone: This is a legitimate way of collecting information because the program itself is legitimate.
Senator Kinsella: Could you share with the members of this committee your thoughts on the self-identification program in the Public Service Commission of Canada? Do you have some cases that you could share with us to give practical examples of what you just articulated?
Mr. Friedman: I do not think there is a common agreement about this, about what needs to be done, but we certainly have examples of people with problems in terms of self-identification.
Senator Kinsella: Can you give an example?
Mr. Pau: I will refer you to a tribunal ruling, a decision in the case of National Capital Alliance for Race Relations v. Health Canada, Treasury Board and the Public Service Commission. That particular case deals with discrimination against visible minority employees in terms of promotion, in terms of advancement into the executive category.
The tribunal found that, indeed, there was systemic discrimination. One piece of evidence was that, in Health Canada, there were, I believe, 118 executive positions. Only one was occupied by a member of a visible minority, and a ruling was made which suggested about 25 different measures to correct the situation.
First, without collecting the information for people to identify themselves as members of visible minorities or as persons with disabilities or as aboriginals, society would have no clue that there was a serious problem. The information is important for that reason.
Second, once you have identified a problem -- whether it is discrimination against women or aboriginals or visible minorities or disabled people -- you must track the progress to see that the problem is corrected and that the remedy is effective until the problem is resolved and until the discrimination and the barriers and so on are removed.
In that particular case, the tribunal ruled that they have to take specific measures to improve the promotion and hiring of visible minorities. The visible minorities were denied acting appointments which would give them the experience needed to become senior managers. Also an issue was identified because people came and said that there was something wrong. The collection of information is very serious in terms of identifying the problem but also in terms of remedying the situation.
Senator Kinsella: Has there been any case whereby a person is alleged to have been treated unfairly because he or she did self-identify and, afterwards, because of some event or events, decided that they never should have identified themselves?
Mr. Pau: There has been anecdotal evidence. In the process of collecting the information, the act of self-identifying is strictly voluntary. There is no imposition. You are not forced to identify yourself. Many people, especially those with hidden disabilities, would not self-identify. Many of them hesitate, especially in terms of seeking employment, because it can affect group insurance rates and can cause many kinds of problems which the employer may see as too costly.
Senator Kinsella: Should there be protection in the act for Canadians from the misuse of that information which Mr. Friedman has referred to as well? In particular, race is now included. Should all the prohibited grounds of discrimination that are included in section 3 apply to proposed section 16.1? Also, once placed into operation, through self-identification or other means, should the misuse of that information be an offence?
Mr. Pau: By and large, my impression is that if there was misuse of that information, it would constitute an offence under the Canadian Human Rights Act because that would be discrimination on any one of eleven grounds. One is protected in that fashion.
The biggest problem is misuse of that information in a subtle manner, in a covert way, where the victim would not be able to prove that he suffered discrimination because of this; where the offender can simply use another excuse.
Senator Kinsella: You mentioned 11 grounds. Is that the number of grounds listed in section 3?
Mr. Pau: Yes, there are 11 grounds listed there.
Senator Gigantès: How can we envision protecting information these days when young hackers can get into the Pentagon's ultimate secret programs?
Mr. Friedman: That has not occurred lately.
Senator Gigantès: The emphasis has to be on punishing the misuse, rather than on hoping that we can limit access, because that is so difficult.
Mr. Pau: Probably the most serious punishment for misuse of information in the common sense is under the Income Tax Act. People who work in Revenue Canada cannot misuse information and are subject to penalties if they do so. Yet if you had read this morning's Ottawa Citizen, you would have seen an article concerning employees of the Quebec Ministry of Revenue who are accused of selling confidential tax information. There are laws that prohibit this and penalize people who do that.
The Chairman: I quite agree.
Thank you, witnesses, for your presentation.
We have with us now Mr. Michael Peirce, Mr. Richard Mosley and Mr. Paul Saint-Denis from the Department of Justice, as well as Mr. Jeff Richstone from Canadian Heritage. I would ask the witnesses to allow one question before they make their presentation since Senator Gigantès must leave shortly.
Senator Gigantès: Gentlemen, I will read your answers in the record.
There are many things in this bill which perturb me. The main one is that the powers would kick in when someone is charged, rather than indicted, which is clearly against the Charter.
The proposed section 12.1(2) states, in part:
...person is charged with the indictable offence or with any other offence...
This bill kicks in for whatever he might have done that is indictable, which may not have anything to do with the main crime.
The other thing that bothers me is this. I asked Mr. Wappel to suppose that a serial rapist had started by raping his daughter and, as part of her rehabilitation, she went to see him in prison and asked, "Why did you do this?" Let us suppose that as part of her catharsis, she writes a book about the experiences. This bill would prevent her from publishing it. Mr. Wappel said she could go to court and the court will grant permission. Why should she have to go to court?
Finally, if subsection (3) of the same section were to apply, it would make a mockery out of the rehabilitation theory. Suppose a bank robber has stolen $20,000 and buried it. Later it becomes obvious that he has been rehabilitated and is now an honest man.
The bank can still sue him to recover the $20,000 from the royalties he will receive, but why should he be stopped for life from writing about his crime?
Mr. Richard G. Mosley, Assistant Deputy Minister, Criminal Law Policy, Department of Justice: We agree with the assumptions in the preamble to the question. I took the question to be rhetorical.
Senator Gigantès: I am hoping you will touch on these issues.
Mr. Mosley: I am sure we will.
Madam Chair, I thank you for this opportunity to testify in respect of Bill C-220. This will be the first time that officials from the Department of Justice are given an opportunity to publicly comment on this bill. We were invited to a hearing of the House of Commons standing committee on the predecessor bill, but solely to comment on the process undertaken by the Uniform Law Conference of Canada on the subject matter. We were not asked any questions about the predecessor bill at that time.
As you have indicated, I am accompanied by three officials from the department who possess expertise in the areas of proceeds of crime under the Criminal Code, copyright law and human rights law.
I should like to acknowledge that the notion of criminals writing or threatening to write accounts of their crimes in exchange for money or other types of benefits is a relatively new phenomenon in Canada and one that many Canadians, quite properly, find offensive. We understand those concerns and offer our comments on this bill with the greatest of respect for the motivations behind this legislative initiative.
Our analysis of the bill stems in part from the proposition that the moneys sought to be regulated by this bill are not derived directly or indirectly from the commission of a crime. On the contrary, we believe that they are derived from a totally legitimate activity; that of writing a book or some similar activity.
That activity exploits the fact that a crime has been committed. The act of writing a book is not, in itself, a criminal offence, even if that book is a recounting of criminal activities for which the author has been convicted, and the proceeds derived from the sale of such an activity are not, in our view, proceeds of crime under the Criminal Code.
It has been suggested that this legislative proposal would prevent a criminal from benefiting from his crime in the same manner that someone who takes out a life insurance policy on a person cannot benefit from the proceeds of the life insurance if he kills the person insured. In our view, this analogy does not stand up under scrutiny.
In the insurance case, the criminal would benefit directly from the murder he committed by receiving the moneys from the life insurance policy on the person he killed. The link, in the case of the life insurance policy, between the criminal act and the benefit is clear. Obviously, that would be against public policy and, accordingly, the law does not permit such a thing to occur.
In the case of writing a book, however, the moneys received are from the commission of a completely legitimate activity -- that of recounting a crime. The link here is between the lawful act and the benefit from engaging in that act.
We are very sympathetic to the motives that lie behind the efforts to bring about changes to the law in this area, and we understand the sense of frustration and anger that some people feel when thinking that criminals might be able to profit from the retailing of their criminal activities.
Having said that, it is important to note that, in our view, this bill is flawed. I will briefly outline what we view to be the problematic areas, and thereafter my colleagues and I will be pleased to respond to questions.
One of the amendments contained in this bill is directed at Part XII.2 of the Criminal Code. The purpose of the amendment is to include in the definition of "proceeds of crime" any profit, benefit or advantage gained by a person convicted of an indictable offence, or any member of his or her family, from the creation of a work based on the offence. This amendment would extend to such profits, benefits and advantages.
The provisions of Part XII.2 create a comprehensive and complex legal regime designed to seize, restrain and ultimately confiscate proceeds derived from the commission of enterprise crime offences or designated drug offences. This bill would bring under this regime legitimate moneys earned from the creation of a work based on the crime for which a person has been convicted. In our view, the proceeds of crime convictions in the Criminal Code are meant to be engaged only when proceeds are derived from the commission of an actual crime. It would be inconsistent for this part of the code to use its provisions to confiscate moneys earned from a non-criminal act. It would, in our view, effectively subvert the purpose of this part of the Criminal Code.
Even if one were to attempt to characterize moneys from the publication of a book written by a person as proceeds of crime, it would be almost impossible to justify trying to deprive moneys earned by a member of the convicted person's family, which member has not been convicted of anything, who has written a book about the person's criminal activities.
Notwithstanding these criminal law policy concerns raised by the bill, we believe that this particular amendment is technically flawed. The bill amends the definition of the expression "proceeds of crime" in Part XII.2 of the Criminal Code. No doubt, it is the hope that with this amendment the provisions of Part XII.2 that apply to proceeds of crime would apply equally to the profits derived from the writing of an account of the crime and that these proceeds would, at some point, end up being seized and confiscated. However, a seizure order can only be obtained if a forfeiture order can ultimately be made in respect of the proceeds, and a forfeiture can only be ordered under the statute if the proceeds are derived from the commission of an enterprise crime or a designated drug offence.
In this case, however, the profits or benefits are derived from the commission of a legal activity -- writing an account of a crime -- thereby making, in our view, the seizure and forfeiture measures under Part XII.2 unavailable. In other words, it is not sufficient that the definition of "proceeds of crime" be expanded, as proposed in the bill, in order for the restraining and forfeiture provisions of Part XII.2 to operate and for there to be an actual forfeiture of the proceeds. Provisions in the statute require that the proceeds be the result of a special type of crime, as defined in the statute, which is not the case with the writing of an account of that crime.
Thus, it is likely, in our view, that the courts could not, in practical terms, apply this amendment.
As you are aware, honourable senators, section 2(b) of the Charter guarantees to all Canadians freedom of thought, belief, opinion and expression, including freedom of the press. It has been suggested that depriving a convicted person of moneys earned from the commercial exploitation of materials recounting his criminal activity does not impair freedom of expression in any way and that such a person is always at liberty to write an account of his crime.
We have a great deal of difficulty accepting that view. On the contrary, we believe that this legislative initiative would result in the finding of a prima facie breach of section 2(b) of the Charter. We believe that any attempt to regulate the moneys paid to a convicted person for publishing an account of his or her crimes amounts to a content-based restriction on freedom of expression.
The logic behind this reasoning rests on the fact that the only basis for depriving an author of financial benefit from an account of his or her crime is the content of the publication or expression itself. Typically, courts have found that content-based limitations violate section 2(b) of the Charter.
We also have serious concerns about the bill being ultra vires of Parliament. As you are aware, the division of legislative powers established by sections 91 and 92 of the Constitution Act, 1867, assigns responsibility over certain activities to federal and provincial jurisdictions.
Subsection 91.27 gives the federal Parliament the exclusive power to enact criminal laws and laws relating to criminal procedure. Subsections 92.13 and 92.16 permit provincial legislatures to enact laws affecting civil rights in matters of a private nature.
In a 1978 decision, R. v. Zelensky, a bare majority of the Supreme Court held that an accused person could be ordered to compensate victims of crime, provided such an order was an element of the sentencing process in the criminal proceedings. Subsequent jurisprudence suggests that the creation of a civil right of action for breach of the criminal law is, very likely, ultra vires Parliament.
It has been suggested that laws seeking to attach moneys earned from publishing accounts of criminal activity do not fit comfortably within subsection 91.27 of the Constitution Act, 1867.
As I mentioned earlier, the Criminal Code already contains a legal regime designed to assist in confiscating proceeds obtained as a consequence of the commission of certain designated crimes. However, the moneys that Bill C-220 seeks to regulate have, at best, a tenuous relationship to the crimes for which the individual has been convicted.
The bill does not propose to make it a crime to publish accounts of crime. Rather, it is the money earned directly from those acts which is sought to be taken away from the author. From this perspective, it is difficult to characterize such money as fruits or proceeds of crime that may be subject to federal regulation. It seems to us that regulation of financial exploitation of crime is more accurately characterized as a regulation of contractual rights. In our view, this is more appropriately the subject of provincial legislation.
The other main element of this bill is the proposed amendment to the Copyright Act, which would vest in Her Majesty any copyright in a work that would otherwise belong to the convicted person, which is based on the offence for which he or she was convicted. This amendment also raises some concerns.
As honourable senators are aware, international instruments and agreements contain obligations which Canada, as a signatory country, must meet. One such instrument, the International Covenant on Economic, Social and Cultural Rights, recognizes inter alia the right of everyone to benefit from any literary or artistic production of which he is the author. There is also the Berne Convention for protection of literary and artistic works, which provides the general principle that authors in the Berne union shall enjoy the rights set out in the convention, along with the rights given to other Berne nationals by the laws of the member states.
Article 17 of the convention is the only provision dealing with state control over Berne works. This article has been interpreted as allowing states to criminalize certain works for the purposes of controlling obscenity, hate propaganda, et cetera. This provision in no way allows the state to expropriate the copyright in that work, for whatever reason. Canada has been a member of Berne since 1928. We are therefore seriously concerned that the proposed amendments to the Copyright Act will cause Canada to fail to meet its obligations under these international instruments.
We have an additional concern over the proposed amendment to the Copyright Act. By vesting the copyright of the criminal's account of his crime, the Crown, as copyright owner, can refuse to publish the work. Thus, while a criminal or a member of his family may write an account of the crime, they are not free to publish. Indeed, at the Crown's prerogative, it may never be published. Aside from the fact that this would set up the Crown as a de facto censor for these types of works, for which there is no mechanism within the federal government, we are concerned that this control of dissemination of ideas represents a significant encroachment on the freedom of expression guaranteed by the Charter.
If the proposed amendment to the Copyright Act is adopted, the holder of the copyright would receive all moneys resulting from the publication of the work. That being the case, there would be no need to amend the Criminal Code to allow for the seizure or confiscation of the moneys from the sale of these books. The moneys would already belong to the state as owner of the copyright.
As you know, numerous publications have made significant literary, historical, criminological, sociological, and psychological contributions to society. Indeed, one such book, Go Boy by Roger Caron, depicts a number of bank robberies he committed. The book resulted in his receiving the Governor General's award for literature. It is easy, perhaps, for supporters of the bill to say that these amendments will not prevent someone from writing such books about his or her experience as a criminal. In our view, if Bill C-220 becomes law and all possibilities of being able to make money from writing these books are removed, they will not be written.
Senator Cogger: Mr. Mosley, you offer very compelling arguments, and I am impressed with your presentation. I also have a great deal of difficulty with the bill. No one is against the principle; it is like motherhood. However, when one starts to think about the implications, then one becomes troubled.
In my view, the least compelling argument you make is the distinction between moneys derived from a lawful act, as you call it, such as writing a book, as opposed to proceeds of crime.
Is it not a fact that all activities generally described as money laundering result in the proceeds of crime turning into very lawful acts and proceeds therefrom?
A few years back, a ski resort in the Eastern Townships of Quebec was seized. Running a ski resort to make money therefrom is a perfectly legal activity, yet the Crown came in and took it all, which I think is perfectly okay under that concept.
Where do you draw the distinction between, in that case, moneys derived from a lawful act, and in the Wappel bill, moneys derived from a perfectly lawful act?
Mr. Mosley: Perhaps I can make a distinction at the outset. We are very sympathetic to the motivation behind this initiative. However, I cannot accept that we agree with the principles outlined in the bill. We have considerable difficulty with the principles. The motivation is something that we understand, and we understand the frustration that lies behind it.
I will attempt an answer to your question, and my colleague Mr. Saint-Denis, who has a specialty in the proceeds of crime, may want to add something.
Since about 1975, when Parliament first began to deal with the effects of laundering money, it has always approached this scenario on the basis that the funds could be traced. You cite the example of the seizure of the ski resort in Quebec, which, by the way, ended up costing the federal government more money than it was worth. However, the source of the funds by which that resort had been acquired, by the persons from whom it was seized, was criminal. It was a question of following the money obtained by the commission of the crime, as it changed form and was invested in the real estate, and then the real estate was seized. There is a direct chain between the criminal act and the conversion of the funds into another form.
In this case, there is no such direct link. You have the act, and then you have a separate act of someone writing about the first act.
Senator Cogger: If someone were to get a first mortgage by extortion and end up being the owner of an apartment building, there would be no money trail. They would say, "Either I get the first mortgage, or I break both your legs, or your daughter will end up in the river."
Mr. Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Department of Justice: Senator, you raise an interesting point. The key distinction is that money obtained through extortion or money obtained through a criminal act is derived directly from a criminal act. If there is no criminal act, there would be no money for the person to have obtained to use to purchase property or homes. However, in the second case, money is obtained directly from a legitimate act, which is the recounting of a criminal act. Here, the individual is exploiting the fact that he has committed a criminal act but is doing so in a legitimate manner. There is no direct criminal link between the obtaining of money and the activity in the second instance, whereas there is in the first instance.
In the case of a money launderer, the money they deal with will always be derived from a criminal activity of some sort. That is the key thing to keep in mind when we are dealing with the recounting of a crime on one hand or money laundering on the other hand.
Senator Beaudoin: Your brief is very good.
I am intrigued by this question of property and civil rights. If we consider the bill, the activity of writing is certainly not a crime. The bill focuses on the property of copyrights. If a book is written by a person who is repentant, no one would object. However, the fruits would still belong to the Crown instead of to the particular person. That may very well happen. We have seen that in history.
There is, of course, a question of freedom of expression, but we may say no one objects to the writing of a book. Only the proceeds are dealt with here. Your argument that it may be an invasion of property and civil rights is certainly very good. The only problem I have is that copyright is listed in section 91, and it comes under federal authority. Obviously the Parliament of Canada may legislate in the matter of copyright. There is no doubt about that.
That being said, we have abolished what we call in civil law "la mort civile". We have abolished the death penalty. A person who has committed a crime is losing liberty but is not losing property. This person is not losing insurance or anything else. Why should that person lose the proceeds or the fruits of an activity that is not a crime in itself? I think this argument is devastating.
Mind you, this bill may be ultra vires as far as property is concerned, but there may also be a doubt in that respect.
As far as freedom of expression is concerned, I do not understand why a person who is writing something that is perfectly legal -- except if it is pornographic -- loses the proceeds of that activity. There are so many points to this bill that it is difficult to see how it will not be challenged if it becomes law. That is one point.
I would like to hear more about copyright because copyright is intellectual property. This, by exception, is federal and not provincial.
Mr. Jeff Richstone, Senior Counsel, Canadian Heritage, Department of Justice: Senator, on the copyright issue, I share your views on the division of powers issue. The amendment dealing with the Copyright Act would be pith and substance copyright legislation and, therefore, valid under a division of powers approach. If there is a Charter argument, of course, it will follow after that. The argument of division of powers would really be on the Criminal Code amendments because that would be constitutionally suspect. As you say, there could be repentant works.
I recall reading the famous Son of Sam legislation before the U.S. Supreme Court, where in a unanimous decision, the Supreme Court said that many repentant works would be caught by that legislation, as would this, such as the confessions of Saint Augustine, which were repentant works written by people many years after they had committed misdeeds or crimes in their youth. That would be the division of powers argument. You could write a musical work or an artistic work many decades after the criminal offence had been charged and convicted, and the penalty and the punishment imposed. Therefore, there is no linkage between the criminal offence and the crime.
The copyright issue would relate strictly to division of powers. However, there are major copyright issues, as mentioned by Mr. Mosley, one of which is the Berne Convention issue. The second issue is that under the legislation, the Crown would be first owner of the copyright. The first prerogative of a copyright owner under the Copyright Act is the right to publish, of course. Therefore, there could be no publication if the Crown objected or if the Crown had the copyright. The work could not be published without there being an infringement of the copyright. That would stop publication in its tracks.
Senator Beaudoin: Suppose the book is a masterpiece. It may happen, we never know. Suppose the person is repentant. Suppose the person is writing for the youth. What would be the effect of the bill in that case? Would the Crown still be the owner of the copyright?
Mr. Richstone: The Crown would be the owner of the copyright and would have the exclusive right to decide whether to publish the work, to exploit the publication, and authorize reproduction and publication of the work in any jurisdiction. It would be up to the Crown to decide whether to publish.
Senator Beaudoin: The Crown will publish because it is not bad for society.
Mr. Richstone: It would be up to the Crown to decide. The Crown would have that authority, not the author. The author would lose any right to deal with a literary publisher or music publisher. Therefore, the Crown would become the ultimate censor as to whether that work were a masterpiece deserving of publication. It would be up to Her Majesty to decide, not the author or any particular publisher. It would be a matter of censorship in the Crown to decide if that were worthy.
Senator Beaudoin: I have many doubts with respect to this bill -- property and civil rights; freedom of expression; the question of the Crown being able to say we will publish or we will not publish. It is quite a power.
Mr. Richstone: It is an extraordinary power.
Mr. Mosley: Censorship is not an area the federal government has a mechanism in place to address. It is not something the Government of Canada wishes to assume as a role within Canadian society. It is extraordinarily contentious in every area where the implication is that the government is acting as a censor. An example would be border customs, where imported materials may be prohibited under the customs tariff. It is very difficult area and one where I do not belief there is any appetite on the part of the government to get involved.
Senator Lewis: I consented to be the sponsor of this bill in the Senate, but, like other senators, I had some doubts about it. I am glad to have heard what you had to say today.
There was a similar bill to this one in the previous Parliament at the end of the session. It was debated in the House of Commons and then went to the legal affairs committee where it was considered. Did the department have the opportunity or did it actually make submissions to that committee?
Mr. Mosley: We were invited to appear. Mr. Saint-Denis and I attended before the committee in the spring. However, we were asked no questions and given no opportunity to make comments, as we have been given today, about the content of the bill. We were asked simply about a Uniform Law Conference of Canada process that was under way at that time, examining a proposal for a model provincial statute touching on the same subject matter.
I suggest that you may want to examine the record of the committee's proceedings on this bill, but to my knowledge, very little evidence was heard with respect to the concerns we have expressed about the bill.
Senator Lewis: I thought that was the case. I have seen the transcripts of the hearings and I was surprised. Today is really the first opportunity you have had to express these thoughts.
Mr. Mosley: There were debates in the House in which some of the concerns were put forward. One of my colleagues may recall, but to my knowledge, there was not an extensive debate.
Senator Lewis: That is what I gathered. There was only a small reference in the House of Commons to some of the matters you have raised. I take it, as you said, you are sympathetic to the motivations. You mentioned the Uniform Law Conference of Canada. Has that process proceeded any further? Have they considered this area?
Mr. Mosley: Yes. In August, the conference considered and approved in principle a draft model statute. It has been revised somewhat since August and circulated for comment to all jurisdictions. If there is no objection received by the executive of the conference, the bill will be adopted as a model statute of the Uniform Law Conference.
Senator Lewis: How would that subject be dealt with, then? It may not be relevant to us here this morning.
Mr. Mosley: It does provide for the proceeds of the publication of accounts of crime to be vested in the province. However, it is subject to discretion as to whether those proceeds are, in fact, turned over to the province. There are limits on the amount of the proceeds. A discretion is given to the court to make an order overturning the application of the statute. It does attempt to apply constitutional Charter standards in carrying out this procedure. As well, the proceeds would be held by the province in trust for victims of the offence, who could then apply to an administrative agency for payment out of those moneys.
Senator Lewis: The approach is to treat this as a matter of property rights.
Mr. Mosley: That is very much so.
Senator Lewis: Not from the criminal point of view.
Mr. Mosley: The conference considered the subject over the course of three years, beginning with a paper presented by a constitutional law expert from the Province of Saskatchewan. The conclusion was that this was more properly a matter of provincial jurisdiction.
There was also an examination of Charter considerations. It then proceeded to the stage of a draft white paper on the subject, and then to a draft bill. At each of the annual meetings of the conference, there was a review of the proposed scheme.
Senator Lewis: I take it from what was said earlier today that if in some way the writing of such a book or work could be classified or made an offence under the Criminal Code, then you might get over some of the problems that arise under the present bill.
Mr. Mosley: We would then have other problems with the Charter. My colleague might wish to comment on those.
Mr. Michael Peirce, Counsel, Human Rights Section, Department of Justice: Honourable senators, if it were made an offence, you would be making the content of the expression an offence. Substantial evidence of the harm caused by the writing of the book would be required.
There is no evidence of the actual harm that flows from the writing of such a book. There may be speculation in that regard, but it is a difficult area in which to develop evidence of harm. Without evidence of such harm, we would find that such an offence would likely be struck down under the Charter.
The harm's-based approach has been applied to other provisions in the Criminal Code that address limitations on content of expression, such as the obscenity provisions. The court has been able to peruse substantial social science evidence of the effects of harm -- albeit not conclusive ultimately, as social science evidence tends not to be, but substantial evidence nonetheless -- that allowed the court to draw the conclusion that there was sufficient evidence of harm so that such an offence could be justified under the Charter. It is unlikely in our current state of the evidence that we could achieve that standard now.
Senator Lewis: From what you have told us today, I gather that the department must have given significant consideration to this matter. Has the department been grappling with this problem for some time?
Mr. Mosley: This issue first arose in the aftermath of the conviction of Mr. Olson. At that time, a considerable amount of work was done.
New York state legislation was adopted in the late 1970s which stood as a model. That statute was subsequently struck down by the U.S. Supreme Court. We began to look at it at that time and concluded that it was not a proper area for federal legislation.
In the mid-1980s, there was another examination of the issue. A committee was struck by the Province of New Brunswick in which we participated with senior Crown prosecution officials from the across the country. That committee concluded after a thorough examination of the area that it was more properly the subject of provincial jurisdiction. We have participated over the course of the past three years in the work of the Uniform Law Conference.
Senator Doyle: In the 13 years I have been a member of this committee, I have not been as impressed as I was with Mr. Mosley's presentation and the support he received from his colleagues. Some of us who perhaps have blamed the bureaucracy for all of our troubles will have to scramble for a new scapegoat.
Mr. Mosley: Thank you.
The Chairman: I should like to propose a hypothetical question in relation to the Berne Convention. Suppose a multiple murderer writes about his crimes while he is in jail in Canada and is able easily to get his manuscript across the border to a publisher in the United States, whereupon it is copyrighted and published in the United States. Would Canada then be forced under the Berne Convention to allow it to be sold or even republished in Canada?
Mr. Richstone: That is a very good question. Under the Berne Convention to which we have been signatories since 1928, including the most recent update in 1971, we are obliged to uphold the obligations. If a work were published in another jurisdiction, we would be obliged to uphold our Berne obligations and allow that work to be reproduced and published here.
The difficulty is that there would be a conflict between the Berne obligation, which would be national treatment and treatment of the Berne minimum right of reproduction of publication, and this bill. This bill would say that the Crown would be the first owner of the copyright and could stop publication. Therefore, we would be caught in an invidious situation.
Under our Berne obligations, we would have to uphold the rights of the author. This would create a real conflict with this legislation. The Berne Convention states that if a state does not like a work, the state could prevent the circulation, the performance or the dissemination of the work within the jurisdiction, but it could not take over the copyright and expropriate it. We would have a difficult problem and a direct conflict with our obligations.
The Chairman: I have grave reservations about the Government of Canada potentially benefiting from the recounting of a crime. I have grave reservations about this business of copyright.
Thank you, gentlemen, for appearing before us this morning.
The committee adjourned.