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Proceedings of the Standing Senate Committee on
Human Rights

Issue 29 - Evidence - June 25, 2013


OTTAWA, Tuesday, June 25, 2013

The Standing Senate Committee on Human Rights met this day at 10 a.m. to study Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom).

Senator Mobina S. B. Jaffer (Chair) in the chair.

[Translation]

The Chair: Honourable senators, welcome to the 39th meeting of the Standing Senate Committee on Human Rights.

Our committee has been mandated by the Senate to examine issues related to human rights in Canada and abroad.

[English]

As a reminder to those watching, these committee hearings are open to the public and also available via webcast on www.parl.gc.ca. You can obtain more information and the schedule of witnesses on the website under "Senate Committees."

Honourable senators, we are conducting a study on Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom), and to repeal section 13 of the Canadian Human Rights Act, which makes it a discriminatory practice to communicate via telephone, telecommunication, or any undertaking or computer-related method, such as the Internet, any matter likely to expose a person or persons to hatred or contempt because the person or persons are identifiable on the basis of prohibited ground of discrimination; for example, race, ethnic origin, sex or sexual orientation.

This section has primarily been used by complainants in cases before the Canadian Human Rights Tribunal to address racist hate propaganda on Internet sites. Criminal sanctions against the propaganda are also found in sections 318 and 320.1 of the Criminal Code.

By repealing section 13 of the Canadian Human Rights Act, Bill C-304 would prevent any cases of hate messaging from proceeding through the federal Human Rights Commission and tribunal process. It would not, however, affect the prohibitions against hate propaganda in the Criminal Code.

My name is Mobina Jaffer, and as the chair of the committee, it is my pleasure to welcome you all to this meeting. Before we continue, I would like to ask my colleagues to introduce themselves, starting with the deputy chair. We have a number of colleagues here who are not normally members of this committee, and I welcome you for your interest in this issue.

Senator Ataullahjan: I am Selma Ataullahjan, and I represent Toronto, Ontario.

Senator Ngo: Senator Ngo, Ontario.

Senator Oh: Senator Victor Oh, Ontario.

Senator Oliver: Don Oliver, Nova Scotia.

Senator Eggleton: Art Eggleton, Toronto.

Senator Baker: George Baker, Newfoundland and Labrador.

Senator Hubley: Senator Elizabeth Hubley, P.E.I.

Senator Munson: Jim Munson, Ontario.

The Chair: To begin our hearings today, we welcome Brian Storseth, MP and sponsor of the bill in the House of Commons.

Mr. Storseth, I understand you have some opening remarks to present to us and then you will be available to answer the committee's questions. Please proceed.

Brian Storseth, M.P., sponsor of the bill: First, I would like to thank the St. Paul Education Regional Division for the use of their video conferencing technology that has allowed me to present to your committee back home in my riding rather than having to come back to Ottawa.

Madam Chair, to begin, I would like to thank you and the committee for the opportunity to discuss my private member's bill, Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom). This is an issue that has been near and dear to my heart for a number of years, and I am thankful to have received support from a large number of my colleagues as well as numerous media outlets and members of the general public on this important and often-overlooked issue.

This bill will help protect and enhance our most fundamental freedom, the freedom of expression. Without freedom of expression one must ask: What value does freedom of religion or freedom of assembly hold for our democracy? Freedom of expression is truly the bedrock upon which all other freedoms are built, and section 13 of the Canadian Human Rights Act directly erodes this fundamental freedom. Section 13 has been a contentious topic for a number of years. It has been widely acknowledged that it impedes section 2(b) of the Charter of Rights and Freedoms, which states that every individual has the freedom of thought, belief, opinion and expression, including freedom of press and other media communication.

This confliction between section 13 of the Canadian Human Rights Act and section 2(b) of the Charter was reaffirmed in 2008 by Professor Richard Moon, who was hand-picked by the Canadian Human Rights Commission to review this act. The principle recommendation at page 31 of his report was that section 13 be repealed so that the censorship of hate speech is dealt with exclusively by criminal law in Canada. It was reaffirmed in 2009 by the Canadian Human Rights Tribunal itself, which found section 13 to be unconstitutional.

Over the past few months, I have had many opportunities to attend a number of conferences, general meetings and opportunities to discuss my private member's bill with Canadians at large. Most people are astounded when they hear that our fundamental freedoms can be trumped by a quasi-judicial body that feels something you said was "likely" — that is the key term in section 13 — "likely" to have exposed an individual or group to hatred or contempt. Canadians find it difficult to believe that such a loosely written and vague law has the power to undermine the fundamental rights that Canadians base their democracy on and for which men and women have given their lives defending for many years.

While section 13 of the Canadian Human Rights Act may have been implemented with well-meaning intentions in an effort to combat discrimination and hate speech, its implications have reached much further, and it has become a sword against our fundamental freedoms and indeed those human rights.

Madam Chair, I am proud that my private member's bill has received support from all different religious groups across the spectrum of ideological organizations and even media publications, from B'nai Brith Canada, to the Muslim Congress, to Catholic newspapers, to the Toronto Star and National Post. They have all said that section 13 of the Canadian Human Rights Act needs to be repealed.

It is through freedom of speech and expression that we change governments in this country, not through riots and revolts. It is how we test societal norms and how we successfully develop and change our democracy. It is through the freedom of expression that we have shaped and will continue to shape our great nation.

I would like to challenge this committee to look beyond the intent of section 13 of the Canadian Human Rights Act and truly examine the structure and implications, and consider what we as a free and democratic society are willing to give up.

I will end with a quote from Voltaire: "I may not agree with what you are saying, but I will defend to the death your right to say it."

Thank you, and I look forward to your questions and comments.

The Chair: Thank you, Mr. Storseth.

Senator Munson: In terms of all freedom of expression, there are different points of view. It is my view that with freedom of expression comes responsibility. Under the Charter of Rights and Freedoms, you mentioned B'nai Brith Canada. They also said in a study that it "sees the use of every new piece of web and mobile technology to spread hate, though such incidents are now becoming so commonplace that the reporting of cases is not expected to keep pace with the reality online."

I guess it is a "why" question. You want to get rid of section 13, but is it not a safety valve for those who feel that White supremacist groups and others can walk right through this and use the Internet to create more hate in the world and in this country?

Mr. Storseth: First, I would suggest that repealing section 13 will not incur more hate in Canada, nor will it incur more hate speech in Canada. In fact, since this section passed through the House of Commons — and indeed even before that — it has really not been used by the Canadian Human Rights Commission, and I do not think we have seen an uptick in the number of hate speech complaints that Canadians report.

More importantly, in those instances where hate speech, hatred and harm are being caused through speech, it is important that real judges in real courts with real lawyers in an open and transparent system to the public are available in our country as it is under sections 318 and 320 of the Criminal Code of Canada, rather than through a quasi-judicial body that no one sees and that oftentimes trumps many of the civil liberties that Canadians take for granted, such as due process, the right to face your accuser, and the right to be presumed innocent until found guilty. These are all trumped by human rights tribunals.

Section 13 and the phrase "likely to expose" is something that leaves large loopholes. Indeed, it was Liberal Member of Parliament Keith Martin, in the previous Parliament, who brought this issue forward, suggesting it was time section 13 be repealed.

Senator Munson: Thank you for your point of view.

You talked about the Criminal Code. However, the Canadian Bar Association would have to deal with the Criminal Code. They have described section 13 as one tool in the tool box and have described it as combating intolerance. Rarely do these cases ever get to a major court of law.

Also, what do you say to the Canadian Bar Association? In an article they posted, they said:

. . . the debate surrounding the expediency of section 13 has become the proxy for an open assault on the very existence of an administrative framework to protect human rights in this country.

I come back, though, to the question that it seems those rubbing their hands in glee would be White supremacist groups who will use every tool in their tool box to propagate hate.

Mr. Storseth: I appreciate the opinion you have on that, but from my perspective and in my discussion with Canadians, those rubbing their hands with glee today are those that foster vigorous debate in our country. One of the key points in this is the fact that it does curtail freedom of expression, especially online, which is where young people are going today and where future generations will go to have debate in our country.

As I said, the organizations that have supported this legislation loudly are organizations like the Toronto Star, The Globe and Mail, the National Post. These are not organizations that support White supremacy.

Senator Oliver: Mr. Storseth, thank you for bringing this bill forward. I know that your issue is the protection of freedom of expression and your main concern is that you state it impedes section 2(b) of the Charter. Two senior members of the Senate of Canada, one of them the Speaker of the Senate and the other Pierre Claude Nolin, also a lawyer very interested in constitutional issues, have spoken in the Senate on your bill. I would like to read from each of their speeches and ask you to comment on what they had to say.

First, Senator Kinsella, who as you know established and was the Chairman of the Canadian Human Rights Commission in the province of New Brunswick for more than 20 years and is internationally known as a great human rights advocate and expert, said the following when he spoke in the Senate:

The role of our human rights commissions across Canada, provincial, territorial and federally, does not have them deal with civil and political rights, economic, social and cultural rights, but more directly with what students of human rights would refer to as "equality rights." Equality rights are best promoted and protected by anti- discrimination law.

He ended his speech in the Senate that day with this question:

Do we really not want to have a statutory provision to deal with discrimination on the Internet?

That is Senator Kinsella. I would like you to speak to what he had to say.

While I am still on my feet, I would like to read what Senator Nolin had to say. He talked about the Supreme Court decision in 1998 and talked directly about what the court said about protection of freedom of expression. He said:

The Supreme Court recognized that this did indeed violate freedom of expression, but it also said that respect for the dignity and equality of individuals, especially as members of a particular group —

He is referring to minority groups.

— justifies limiting this freedom of expression.

The Supreme Court found that there are some areas where there is justification in putting some limits on that.

I would like your response to what those two senior senators had to say in the Senate.

Mr. Storseth: I have a lot of respect for Senator Kinsella and Senator Nolin.

Going in reverse, I had the opportunity to read both speeches in the Senate. I was very pleased that the Speaker of the Senate would take the time to speak on my private member's bill.

With regard to respect in our society and the comments that Senator Nolin made, I would suggest it is difficult, if not impossible, to legislate respect. I think that is something we need to ensure we incur in our society by winning of hearts and minds. It is like saying we are going to monitor people's thoughts and expressions. We need to make sure, as the Charter says — and I agree with the Supreme Court when it states there should be a limit. Indeed, in our country we do have a limit on what you can say. That limit is when what you say becomes harmful or is true hate speech. These are very serious offences that should not be swept under the rug and looked at through a quasi-judicial body.

When people are actually doing this in our country, we need to take the time to ensure they are tried properly in a real court of law, with a real judge and lawyers. We cannot have some quasi-judicial body that no one ever hears about and cases where no one ever hears what the result is or the process it has undergone. The best way to address these issues is to shine a light on them. That is the best way and it has always been the case in our society.

I believe the way we need to continue do it is through the Criminal Code of Canada. The Criminal Code has a tried and tested method throughout the history of our country in addressing the grievances of Canadians. I would suggest that these quasi-judicial bodies that section 13 tribunals occur under really do impede on our civil liberties as Canadians. I do not think anyone would suggest that is the way we should be trying these things.

The other aspect is that Senator Kinsella's speech often talked about intent. It definitely addressed the fact, and I do believe that the intent of the creators of section 13 was to defend the human rights of individuals. However, the way it is worked over, the implementation of it, is that it is actually seated on the human rights of Canadians and that is why you have groups like B'nai Brith Canada, the Muslim Canadian Congress and the Catholic Women's League saying, "We agree with the intent of this legislation," but in reality it is flawed and has not worked for the betterment of Canadians. Instead of a shield, it has been a sword that has attacked human rights in Canada. I would suggest these types of issues be addressed in an open, transparent way, and that is through the Criminal Code of Canada and our judicial system.

I would also add that one of the reasons we put a one-year implementation period in this bill was so the government could have time to look at beefing up sections 318 through 320 of the Criminal Code, which Minister Nicholson in the House of Commons has already said they would do when this legislation actually gets passed.

Senator Baker: On your point about where the section violates the Charter, it is not unusual for a section of law to violate the Charter. That is common place. The point is, it is saved by section 1 of the Charter, and that has been determined by the Supreme Court of Canada over and over again.

Let me give you a quote from the Supreme Court of Canada that says that section 13 is quite different from the Criminal Code and should not be confused with the Criminal Code. I will give you a quote from 1990, which was verified again about three months ago by the Supreme Court of Canada. First, Canada (Human Rights Commission) v. Taylor, which you are familiar with, says this at paragraph 37, the Supreme Court of Canada:

It is essential, however, to recognize that, as an instrument especially designed to prevent the spread of prejudice and to foster tolerance and equality in the community, the Canadian Human Rights Act is very different from the Criminal Code. The aim of human rights legislation, and of s. 13(1), is not to bring the full force of the state's power against a blameworthy individual for the purpose of imposing punishment. Instead, provisions found in human rights statutes generally operate in a less confrontational manner, allowing for a conciliatory settlement if possible and, where discrimination exists, gearing remedial responses more towards compensating the victim.

The Supreme Court of Canada three months ago, at paragraph 105 in Saskatchewan (Human Rights Commission) v. Whatcott, again referenced, with approval, that distinction and the value of our Human Rights Act, section 13(1). You are eradicating section 13(1) with this legislation. What do you have to say about this opinion of our Supreme Court of Canada?

Mr. Storseth: First, senator, I appreciate the opportunity to talk to you about this. I would suggest that —

The Chair: Mr. Storseth, I do not mean to interrupt you. We only have about seven minutes, so I will ask that the questions and the answers be tight so other senators can ask you questions.

Mr. Storseth: Thank you, Madam Chair. I will keep my answers short.

I would actually respond by saying Professor Richard Moon, who was appointed by the Canadian Human Rights Commission to investigate what he thought should happen with section 13 of the Canadian Human Rights Act, says at page 31 of his report, that:

The principal recommendation of this report is that section 13 be repealed so that the censorship of Internet hate speech is dealt with exclusively by the criminal law. 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 and seeks to advance the goal of social equality through education and conciliation.

I look forward to having more vigorous debates with the senator afterwards.

The Chair: Mr. Storseth, I have three senators on my list. I will invite them to ask their questions and at the end perhaps you can answer them all because we have limited time on video conference. I will start with Senator Ataullahjan.

Senator Ataullahjan: Mr. Storseth, Isaiah Berlin differentiated between two types of freedoms in his 1958 essay entitled Two Concepts of Liberty: positive freedoms, the capacity to do as one chooses; and negative freedoms, freedom from external restraints or interference. Having lived under Bolshevik rule in the U.S.S.R., Berlin was of the opinion that the pursuit of positive freedom could lead to the infringement of rights. He stated that "freedom for the pike is death for the minnows. The liberty of some must depend on the restraint of others."

You stress the importance of protecting positive freedoms of Canadians in the form of freedom of expression. Does this take priority over protecting Canadians' negative freedoms?

Senator Eggleton: Mr. Storseth, the Canadian Bar Association points out that removing section 13 would take away the civil standard of balance of probabilities and consideration of hate speech cases and rely on the Criminal Code, which has a higher burden of proof. They are suggesting that in fact a lot of these matters can be settled at that level.

I know you do not have a great opinion of how these are dealt with by the tribunals or by the Human Rights Commission, but have you not considered other methods of improving, amending the Human Rights Act to be able to accomplish your aims as opposed to going this route, which one could call throwing the baby out with the bath water?

Senator Hubley: Mr. Storseth, the Moon report presented other recommendations, including changes to the wording of section 13 to include an intent requirement and to specify that the prohibition applies only to the most extreme instances of discriminatory expression, namely those that threaten, advocate or justify members of an identifiable group. I would like to have your opinion on those other options.

The Chair: Mr. Storseth, it would be appreciated if you can answer the three senators at the same time.

Mr. Storseth: I do appreciate the opportunity to discuss this with each of you. I will avail myself to continue to be available when Parliament resumes, or before that, to have further discussions, as I have had with senators in the past.

To begin my final comments here, I wish to say that I do very much appreciate the work that my late senator, the Honourable Senator Finley, did in promoting this piece of legislation and the work that he did with me in helping it get through the House of Commons as well.

I very much appreciate the comments made by the senators, particularly a couple of comments that dealt with potential amendments. Both in the house committee and through Professor Moon's report, the number one recommendation is the repeal of the section because it is so burdensome to amend it. If you look at the amendments suggested — I believe there were 12 or 13 of them in a small section of the Canadian Human Rights Act — you would actually be overhauling it to a point where you would be taking a small piece of legislation and trying to change it so substantially that I think you would be far better off to repeal the section.

In the future, if a government wants to look at another method to protect it, there may be other ways to go about it. It has been acknowledged by most organizations that have dealt with section 13 and have reviewed it that repealing it is easier than all of the quite substantive amendments that you would need to be able to address the concerns that we have with it.

With regard to positive versus negative freedom, that is an excellent question. One of the key, fundamental differences in our democracy from some of those other countries that were talked about that were not democracies is the fundamental belief that the government has a responsibility to Canadians to allow them to express their disagreements with government positions and the actions of the government. I think this is a core way in which we have and will continue to peacefully change and adapt our country and develop a stronger society, once we get to it.

I often use the example of Nellie McClung and the women's suffrage movement as an example of something in society. If you look at the Hansard of Canada, both in the house and in the Senate, you will see it was not the norm at the time to talk about women's suffrage. It was actually something people found offensive. It was through freedom of expression and freedom of thought that they were able to push our society to become a better place.

When we are going to limit freedom of expression, it is important that it is done in a manner that is open and transparent and one that respects the rights of civil liberties of Canadians, whether it is due process, a speedy trial, the right to face your accuser, or know the evidence presented against you. None of these are available under section 13 of the Canadian Human Rights Act and the tribunals that follow. In fact, there are many instances where investigations took many years and defendants never knew who was purporting that they were breaching their civil liberties or who or what the evidence was. That can be very costly to Canadians, and they do not have a right to a lawyer in these instances. I think these are all things that are very big flaws of this process, this system. As both a Conservative and a libertarian, I believe very much that we need to take the shackles off all of us when it will enhance and promote better speech in our country.

I very much appreciate the Senate sitting longer in session to review my bill. I thank you for that. I thank you for the time that you are taking to do this.

I would also like to pass on my thoughts and prayers to those people in southern Alberta that have been very much affected by the floods and thank everyone for their well wishes and support.

The Chair: Thank you, Mr. Storseth.

Our next presented is Professor Richard Moon, who I understand has some remarks to make before we ask him questions.

Richard Moon, Professor, Faculty of Law, University of Windsor: Thank you very much for inviting me to speak to you today. Let me begin by saying that there are both good and bad reasons to consider the repeal of section 13 of the Canadian Human Rights Act.

Let me begin with the bad or wrong reasons. A number of bloggers and media commentators have made claims about the Canadian Human Rights Commission and its application of section 13, claims that are misleading and, more often than not, just plain false. Claims such as the Canadian Human Rights Commission, on section 13 cases, has a 100 per cent conviction rate, or, more troubling, the members and staff of the commission is incompetent and corrupt.

Let me just say that these are just plain false and ungrounded and constitute a smear campaign against the commission.

I have written about this, as has the other witness today, and if the committee is interested in any of these allegations and the very simple response to them, I would be happy to direct them to certain readings.

Let me move on to what I think are the proper reasons to consider the repeal of section 13.

As you may know, I wrote a report for the Canadian Human Rights Commission several years ago in which I recommended the repeal of section 13, so that the commission and the tribunal would no longer deal with hate speech claims, and, in particular, hate speech on the Internet. I argued that hate speech should continue to be prohibited under the Canadian Criminal Code. I made three general arguments.

First, I took the position that state censorship of hate speech should continue. It should be confined to a narrow category of extreme expression which either explicitly or implicitly threatens, advocates or justifies violence against the members of an identifiable group, even if that violence is advocated complicity or explicitly and is not imminent.

In my view, the failure to ban the extreme or radical edge of prejudiced speech carries too many risks, particularly when it circulates within a 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 to 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.

Second, I argued that 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 member of an identifiable group would require extraordinary intervention by the state, and would dramatically compromise the public's 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 focused on expression that is tied to violence does not fit easily or simply into our 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 help them reach a resolution of the dispute between them.

This is a process that is entirely appropriate for discrimination claims, as we have ordinarily understood them, but not appropriate for hate speech.

The main problem, it seems to me, is that free speech interests are affected every time an investigation occurs, even if the commission dismisses the complaint following the investigation. 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 or frivolous or made in bad faith, the commission 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 it decides 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 investigations on this ground because such a finding may be seen as downplaying the genuine feelings of hurt and injury experienced by minority group members and will preclude the possibility of a facilitated resolution of the "dispute" — I put dispute in quotation marks — between them. Once again, even if the commission ultimately dismisses the complaint, free speech interests have already been compromised.

The second concern I have about the human rights process and its application in hate speech cases is its reliance on private citizens to initiate and pursue section 13 complaints. It is true that the commission can itself initiate complaints, but that has not generally been its practice.

There are a variety of reasons why it is problematic to rely on a complaints-driven process, although the main one is just 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 he or she has looked for it or stumbled across it on the Internet. 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 he or she proceeds to adjudication before the Canadian Human Rights Tribunal, some complainants have been subjected to threats of violence. We should not expect complainants to bear such a burden. It is no accident that so few complaints have gone on to the tribunal for adjudication and that those that have been successful before the tribunal have been brought by principally one individual: the burden is so enormous, the sacrifice so great.

I might add, 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 this law.

All this, I think, supports the repeal of section 13. However, if we are to rely on the Criminal Code exclusively to deal with hate speech, then we need to ensure that the criminal process is effective. There are certainly some issues that need to be addressed or considered when thinking about the effectiveness of the Criminal Code.

I have just a couple of things to mention quickly. The first is, for a prosecution to be commenced under the Criminal Code under the hate speech provision, the consent of the provincial Attorney General is required first. We know very little about the use, or at least about when consent has or has not been given. There has been some concern that some attorneys general in the past have been unwilling to grant consent to any prosecution but, as I say, we simply do not know very much about this.

Second, while it is true that some police forces have developed considerable expertise in the investigation of hate speech complaints or hate speech issues, it certainly is not at all clear that all police forces — or many police forces — have the capacity and expertise to investigate these complaints.

Let me add quickly that there is an often overlooked section of the Criminal Code that may have some value in preventing hate speech in its extreme form, and that is section 320.1 of the Criminal Code, which allows for the take- down of hate speech on the Internet in cases where it is unnecessary to show wrongful intent or even who may originally have been responsible for the posting of the material.

Finally, just let me say that there is a serious and important debate to be had on this issue concerning the regulation of hate speech under the Canadian Human Rights Act. The debate is difficult and complex, and there are many reasonable positions one can take on this issue. I do not agree with those who believe that the Canadian Human Rights Commission and Tribunal should continue to be involved in this issue, but I do not doubt their good faith in taking this position.

In my view, section 13 ought to 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, and that it not take into account the unfair, ungrounded attacks on human rights commissions that obscure the real and important issues.

The Chair: Thank you, Professor Moon.

Senators, we are still working on connecting with Ms. Eliadis, but we will proceed to questions in the meantime.

Professor Moon, people say this can be covered by the hate legislation in the Canadian Criminal Code, but sex, age and disability are not covered in the code. At the moment that is not in the code, while it is in the Canadian Human Rights Act. Do you agree with that?

Mr. Moon: Yes. That is certainly my understanding. I do not want to be understood as suggesting that the Criminal Code, as it currently stands, is in every respect the most effective response. I think that serious thought needs to be given to adjustments to the code, the process, the expertise of police and so forth, if it is going to be an effective option.

The Chair: On page 2 of the report you did for the Canadian Human Rights Commission, you said that if we are looking at repealing, you suggest each province establish a hate crime team composed of police and Crown law officers with experience in the area to deal with the investigation and prosecution of hate crimes. You also stated that prosecutors should use the code more often than they do at this point. Are those still your opinions?

Mr. Moon: Yes, I certainly think that we need to think about ways to ensure that the police have the expertise and initiative to commence prosecutions, when appropriate. That is the first thing to be said.

I understand that the Province of British Columbia some time ago established such a body that I described of individuals involved in the criminal justice process, and I think that would be a very useful thing for different provinces to contemplate.

On the question of the consent of the Attorney General, I do not think it is necessarily an inappropriate requirement to ensure that cases are not brought that one might decide are unlikely to succeed. However, I think it would be worth investigating how this consent has been used in the past — when it has been granted, when it has been withheld — because, as I say, we simply do not know very much about the use and when it has been granted.

Some people have expressed concern that the consent requirement has been — or might be — used to, in effect, nullify the law: a particular attorney general simply declining to give his or her consent in any particular case. That is simply something we do not know very much about, and I think it would be worth investigation.

The Chair: Professor, we have many senators who want to ask you questions, so may I ask that you keep your answers brief, as much as it is possible.

Senator Andreychuk: Professor Moon, I have many questions, but I will address just the one issue.

When we had anti-terrorism legislation come through, we also dealt with the hate issue. Your comments have been really directed to the other portion of the hate propaganda issues. The Canadian Human Rights Act put in section 13, if I recall, in the late 1970s. Telephone was the first, then we added Internet and then we added anti-terrorism. Can you comment on that piecemeal issue and how effective section 13 is as a result of that in the anti-terrorism legislation, which was supposed to protect groups that might be unnecessarily targeted?

Mr. Moon: I am afraid I cannot; I am sorry. I have not followed events since my report and I do not really have enough knowledge of that to be able to answer in a useful way. I guess that is my simple answer to your question. Others may be in a better position to answer that question. I apologize.

Senator Baker: Professor, thank you for your appearance here today and for the extensive work you have done in this area in the past. You were referenced by the Supreme Court of Canada in February of this year in the judgment called Whatcott v. Saskatchewan. You were referenced in one sentence: "Others suggest that to minimally impair expression, hate speech should be dealt with through criminal law prohibitions or other prohibitions restricting only speech which threatens, advocates or justifies violence: see R. Moon," and then your report.

My major question to you is a question that I think any reasonable person would ask, given your advocacy that these matters be dealt with under the Criminal Code of Canada. All Canadians recall the case of R. v. Ahenakew in which this leader gave a speech about the Jewish people in Canada. Everyone in Canada watched the evening news to listen to that reported speech and the interview thereafter. He said some terrible things about the Jewish people and he was charged under the section that you are advocating be used instead of the Human Rights Act. He was charged under section 319 of the Criminal Code.

He was found innocent and he was acquitted. Why? Because the judge said the intent required under the Criminal Code, the intent plus the fundamental elements of the offence required under the Criminal Code, meant that it could not be proven that this was hate speech that had taken place.

Are you suggesting that someone be able to say those words whenever they wish — on the Internet, on the telephone, robo-calls — as long as it does not meet that high requirement of section 319 of the Criminal Code?

Mr. Moon: I suppose my simple answer might be yes. However, as you point out, that was a very complicated decision, based on a complicated set of facts.

There were two issues that arose. One of them was whether this was in private conversation, and it was ultimately found not to be.

The other issue was whether or not he intended to communicate these views. The problem for the court was that they found he had been prodded and provoked by this particular journalist.

I take no position on these findings of fact, but it was a factual determination about how this communication occurred following a speech he gave. You are absolutely right that if we rely on the Criminal Code, there is a burden of proof that falls upon the Crown and there is an intent requirement.

It is important to note that if we are looking at section 13, at the time I wrote my report there had been only 16 or 17 adjudications by the Canadian Human Rights Tribunal in which determinations had been made that the section had been breached. It is not used very frequently because of the incredible burden that falls upon a complainant. In each of those cases, the tribunal found the section had been breached and an injunction had issued.

Again, my concern is that in all but one or two of those cases, a single individual was the complainant, because of the enormous burden that falls upon an individual. You are quite right that there are some challenges to bringing prosecutions under the Criminal Code, but I think we should be careful to recognize that another set of very significant challenges lies in the case of section 13.

Senator Baker: Therefore, you are suggesting that we eradicate the section entirely, leave it to the high standards of the Criminal Code and allow people to say what they want about other persons?

Mr. Moon: Of course, I do not believe we should allow people to say what they want.

Senator Baker: There is no law against it.

Mr. Moon: Of course, the Criminal Code has a prohibition on extreme hate speech. The difficulty is that if you look at section 13 and the cases that are actually decided by the tribunal, which go all the way through the process, I would suggest that these are almost all cases that could be prosecuted under the Criminal Code. They are extreme speech and there is little doubt that there is a wrongful intention behind them.

The problem is that of the cases that enter the process and are investigated, some will have no likelihood of success before the tribunal. Both the court and the tribunal, or the court in interpreting both section 13 and the Criminal Code prohibition, have made it very clear that only the most extreme forms of speech, hate speech, will be caught by either provision.

Senator Ataullahjan: Professor Moon, as a member of a minority community, I am worried about the effect that this bill would have on minorities — visible, religious and others. Will repealing section 13 not make it challenging for minority communities to seek justice against legitimate hate and violence?

Mr. Moon: I actually do not think it will. However, I think that if we want to address that, we need to ensure that the police and the Crown take seriously the availability of the Criminal Code provisions, in particular, the provision I mentioned in my opening remarks, section 320.1, which allows for the takedown of hate speech on the Internet, with no requirement to show intent; it only needs to be demonstrated that the speech constitutes hate speech under the Criminal Code. That would be a much more effective process.

Again, let me reiterate that section 13 is not heavily used, and the cases that have gone through the process, ultimately resulting in adjudication, are very few in number, and the burden of bringing those cases has fallen upon a single individual. This provision has not been widely used by different communities within Canada, and for good reason, because of the burden it places upon those who want to bring a complaint.

Senator Eggleton: Professor Moon, the Canadian Bar Association, in its brief on this matter, has pointed out that the difficulty under the Criminal Code is the high burden of proof, beyond a reasonable doubt — you have talked a bit about this in terms of section 319 of the code and its application — whereas they are saying that in the case of section 13 of the Canadian Human Rights Act, it has a civil standard or balance of probabilities. Frankly, it looks like both of them can be quite useful.

The repeal strikes me as risking throwing the baby out with the bathwater, so I wonder if there is not another way. You pointed out in your submission that there are some difficulties here, and the result of that was your conclusion that section 13 should be removed. However, is there another way this could be done without removing that tool from the toolbox?

Mr. Moon: Let me say a couple of things. First, in my report I did, in fact, make an alternative recommendation. I said that if it was decided not to repeal section 13, which I think is the appropriate response, a number of changes could be made to the human rights process insofar as it applied to hate speech complaints that might at least alleviate some of these problems or concerns. I thought one of them was to give the commission a larger role to dismiss complaints in a preliminary way that it thought would have little likelihood of succeeding, and not be required to pursue a full inquiry. The second would be to have the commission play a larger role in the carriage of these complaints so the burden would not fall so significantly on private individuals to pursue it. I did make some alternative suggestions.

Let me say something quickly about the burden of proof point you made initially. Burden and standard of proof matters when we are talking about factual disputes about who said what and when they said it, certainly also with regard to their intention; but that is a more complicated idea. Burden of proof is applicable in those situations. However, the central issue in most hate speech cases is not that kind of issue, but rather it is: Does the kind of speech that happened here constitute hate speech? Is it so significant, serious and extreme that it counts as hate speech? With that issue, I do not think burden of proof is a significant matter. Either it is determined that this is so extreme as to constitute hate speech or it is not. Therefore, I am not sure that the burden of proof need be a significant issue in many of these cases.

Senator Eggleton: That raises the question: How extreme is extreme? Senator Baker pointed to a case that seemed to be very offensive and seemed to be an obvious case of hate speech, yet on the intent clause in section 319, the person was found not guilty.

Mr. Moon: Yes, but that had to do with the situation in which he was questioned by a reporter as opposed to someone giving a speech, whatever it may be.

The same challenges around the character of the speech arise when we are talking about section 13. As you may know, one of the things that brought hate speech provisions of human rights codes to the fore was the complaint brought against Macleans magazine. The tribunal in British Columbia in that case found that the particular article by Mark Steyn did not constitute hate speech. If you read that, and we now know certain things about it, for example Anders Breivik's reliance on the writing of many people, including Mark Steyn, you might say that might well constitute hate speech against Muslims in Canada, even under the Criminal Code. There are bound to be difficult issues, whatever the process is, whether it is the Criminal Code or the human rights process, in determining what counts as speech that is so extreme in character as to constitute hate speech.

The challenge is that bigoted racist speech is commonplace within our society. We have more extreme forms that can be implicitly understood, or explicitly sometimes, as calling for extreme or even violent action against members of different groups. We also have more commonplace forms of stereotyping and insults of different kinds. For the most part, we have accepted that at least in public discourse we cannot regulate or restrict those more commonplace forms without involving the government too deeply in the conduct of public discourse. We draw a line somewhere, and that represents a very significant challenge.

The Chair: Professor, you mentioned the Steyn case, but that is B.C. law, which is still in place. We are talking about federal law.

Mr. Moon: Absolutely.

Senator White: If I understand correctly, you are suggesting that as a result of section 319 of the Criminal Code, section 13 is redundant. Many would argue that when two pieces of legislation are similar, sometimes people take the easiest off-ramp instead of using the full power of the Criminal Code. If I am wrong in what you are suggesting, then correct me. However, if I am right, is what is found in the Criminal Code strong enough now to deal with these cases, or is the off-ramp of the Human Rights Act being used because it is not strong enough? If it is not strong enough, what do we do to improve the Criminal Code? If I am wrong about all of those things, you can correct me.

Mr. Moon: I do not know whether the word "redundant" is entirely right; but, to some extent, it is true. The Criminal Code, as I mentioned in my opening remarks, is the more appropriate process because whatever we respect, it is accepted that only the most extreme forms of bigoted speech ought to be caught by the law, whether we are talking about section 13 or about the Criminal Code provision against the willful promotion of hatred. The criminal process is far better suited to responding to this extreme form of hate speech. The human rights process is designed to deal with a broad, inclusive understanding of discrimination. It is meant ideally to help educate and bring parties together when we are talking about the failure to think about the circumstances or needs of different communities and employment or the provision of services to hopefully get employers and others to recognize that they need to make adjustments to policies, programs, facilities and so forth so that they are as inclusive as possible.

Hate speech is of a different order. We think that we should capture only the most extreme forms. I will say one thing by way of correction. I do not think that section 13 has been seen as the easy route. To initiate or make a complaint to the commission is a fairly straightforward and simple process. However, to see that complaint all the way through to adjudication before the tribunal and resolution is enormously burdensome. There is no way that it is an easy process.

When we are talking about hate speech, we are talking about a public wrong against a community but against the larger Canadian community. It seems that we should be putting the burden on the state — the police, the Crown and so forth — to pursue these cases, not on private individuals. The Criminal Code, for a whole range of reasons, is better suited to respond to these problems.

Senator Munson: Professor, you have tweaked my curiosity. You keep referring to the Criminal Code, but what will it take to get it to provincial attorneys general? You said that it is the state, not private citizens, and that we do not know enough about what provincial attorneys general are doing. Do you have any statistical evidence that provincial attorneys general will act on these kinds of things? Currently, we are relying on section 13.

Mr. Moon: I do not know if we are relying on section 13. As I say, I do not think it has been used heavily. Only one individual has brought most of the complaints that have gone to adjudication before the tribunal.

Senator Munson: The provinces do not seem to be doing anything.

Mr. Moon: I raised in my report and in my opening remarks that if we are going to repeal section 13, then we need to make sure that the criminal process is working.

When I wrote my report, I was a simple academic commissioned to do this without any staff or resources, so I do not have those kinds of statistics about the criminal process. You would have to make inquiries with Justice Canada to find out what information they have about the number of prosecutions and the situations in which attorneys general have granted consent and not granted consent. I am not in a position to give you that information.

In my report, at the time many years ago, I said that this is something we need to know more about if we are going to rely on the criminal process. I am afraid that today I cannot do any better than to simply reiterate that point.

Senator Munson: Yes, I agree: We should know more what is going on in the provinces before we do anything with this bill because it goes back to what Senator Eggleton mentioned from the Canadian Bar Association: By repealing section 13, Parliament will have failed both Canadians and the international community. We have international treaty obligations, according to the Canadian Bar Association, and we have to meet those international obligations.

Mr. Moon: We do. I think the Criminal Code satisfies those obligations. Again, if we are going to talk about section 13 and its repeal as a loss, as the Bar Association has apparently done, we have to look at how and when it has been used. It is important to recognize that, while we can, in the abstract, describe its removal as a loss, the fact is that it has been utilized very little. We are talking about a very small number of cases, cases that, as I say, have almost entirely been brought by a single individual who has dedicated himself to pursuing these cases at enormous personal cost.

Again, the loss of section 13 might have symbolic consequences to it, although I really do not think that is true. However, it does not have much in the way of practical consequences since it is so little utilized.

The Chair: You have said a number of times that the cases finally adjudicated are few, but I understand that there is a resolution process where the Human Rights Commission meets with the complainant and the person that has written pieces that might be offensive. Once we repeal section 13, there is no way of resolving disputes, except in the very extreme cases. That is not even resolving it; that is just charging someone with writing or spewing hate. The Human Rights Commission has a process, and it is a good process to resolve issues within the community. We will lose that process, will we not?

Mr. Moon: The dilemma is this: If we think that only the most extreme forms of bigoted speech ought to be caught by the law, then those cases are precisely the ones that are not well suited to mediation or conciliation.

First, generally, the parties had no interaction in the past and will have no interaction in the future. An individual has found this material online and has initiated a complaint against it. It is not like a classic discrimination case, where you are bringing two parties together to try to create or restore a relationship. If we are only talking about extreme speech, then it seems to me that conciliation or mediation is not well suited.

If, on the other hand, we are talking about cases where less extreme forms of bigoted speech, as it were, are being brought into the system and complaints made about them, then we might have free speech concerns in which parties are being pulled into a process where, ultimately, they would not be found to have breached the act but are nevertheless required to sit down and work out some resolution.

Again, little information is available about whatever resolutions occur, but, in the few I am aware of, it seems to me they were individuals who simply decided that they were likely to be found guilty — guilty is the wrong word — likely to have been found to have breached section 13 and simply found a way to extricate themselves and agree to refrain from such action in the future. It is closer to something like a plea bargain than anything.

When I studied this, the statistics I was provided with were that — and you will forgive me for not having the exact numbers — approximately 75 complaints were received and accepted by the commission as being non-trivial. A very small percentage of the complaints they heard and received were section 13, of course. More than half of these complaints were dismissed following investigation and were not referred to the tribunal. Of those that went to the tribunal, a very small number of them were resolved prior to adjudication. Conciliation or mediation has not played a significant role in section 13 complaints for the obvious reason I stated earlier. We are talking about extreme expression. These are not parties that will be able to sit down together to discuss these matters.

Senator Fraser: I would like to come back to the question of our international obligations, Professor Moon. If we accept, for the moment, your contention that we should be relying on the Criminal Code and not on section 13, the Criminal Code, as you know, does not now include protection against hate speech specifically affecting the case I wanted to raise — women. If we abolish section 13, which does protect against discrimination against women, before we get around to clearing up the Criminal Code, then are we not in breach of our obligations under, notably, the Convention for the Elimination of All Forms of Discrimination against Women?

Mr. Moon: Again, if we are talking about discrimination against women —

Senator Fraser: Hate propaganda.

Mr. Moon: That is the real question. I think some thought needs to be given to the scope of this. There are different ways to advance and to ensure that our obligations are satisfied.

Certainly, when we come to the extreme speech we are speaking of, when we talk about hate speech prohibitions under either the Criminal Code or human rights legislation, the focus has, understandably, been on race and, increasingly, on religion. Those are the places where we see the most extreme forms.

Absolutely, I accept that we need to give some consideration to the current scope of the current criminal prohibition.

Senator Fraser: You would not wait to abolish section 13 until the necessary changes have been made to the Criminal Code?

Mr. Moon: I think I probably would not, but, with that said, I am not a lawmaker. When I wrote this report, the repeal of section 13 went hand in hand with a recommendation that consideration be given to the changes that might be necessary to ensure that the Criminal Code worked as effectively as possible.

Senator Andreychuk: I have a follow-up to the previous question. You seem to be answering and indicating that section 13 covers hate speech. I understood section 13 not to cover hate speech or hate communication per se. Section 13, as I read it, is about communicating telephonically or causing to be communicated by means of telecommunications, et cetera. We added the Internet. It is discriminatory practice and hate speech linked to a certain communication system.

Are there other ways or did you study other ways within the Human Rights Commission with which you could attack the issue of hate as a discriminatory practice that is not electronically or telephonically communicated?

Mr. Moon: The reason for that focus really is a matter of jurisdiction and the federal government's jurisdiction. Provincial human rights codes can cover other forms of communication or representation within a particular province.

The fact is that only some of the provincial codes include a provision similar to or virtually equivalent to section 13 but dealing with other forms of communication. British Columbia, Alberta, Saskatchewan and the Northwest Territories have a similar provision. The focus, again, on telephonic communication, which was interpreted initially by the court and then clarified by amendment to the Internet, was really simply because that fell within federal jurisdiction.

Let me say that, as a practical matter, at the moment, most hate speech — it will not surprise you to know — is taking place on the Internet, so that really needs to be a central focus if we are going to respond to hate speech.

Senator Baker: Since most hate speech or hate communications are taking place on the Internet, as you have just pointed out as a recent phenomenon, why are we today removing from the law a prohibition against hate communications on the Internet? Do you think it is such a good idea for Parliament to be doing that at this point in time, when so much public attention is being paid to what is happening on the Internet, especially with young people and hate communications? Do you think that is a wise thing for us to be doing?

Mr. Moon: I have indicated that I do think it is the appropriate public policy response because I do think that the Criminal Code is the better, more appropriate way to respond to this problem. For me to fully answer this question, I think I will begin to sound a little repetitive and I do not want to do that. Again, a complaint-driven process, putting the burden on private individuals, is not appropriate. A process that is designed to deal with a broad, inclusive understanding of discrimination is not well suited to deal with a narrow category of extreme expression. All I can do is reiterate what I have said before. I can see I am not persuading you, though.

Senator Baker: A reasonable person would say "and neither is the Criminal Code." As the professor and former judge across the way would tell us, it is not just the intent that has to be proven, but the essential elements of the offence as outlined in the Criminal Code. It is a problematic and difficult task to prove that.

What we are doing is removing from the law — and what is federal jurisdiction on the Internet and in telecommunications — the section that says "you shall not carry on with hate propaganda." We are removing that high standard of the Criminal Code to prove something under that section of the Criminal Code. How can we as parliamentarians justify that today?

Mr. Moon: As I say, the Criminal Code and the standards you describe are entirely appropriate when we are dealing with public discourse, free speech and we are trying to isolate a category of extreme expression that should exceptionally be caught and prohibited.

Let me again point you in the direction of section 320.1 because it avoids some of the problems you have described and enables, without laying the blame on anyone, the removal of hate speech on the Internet.

Senator Baker: Professor, we have laws in Canada, as you know, to prevent things from happening. People know that it is against the law to do this or to do that, so there is a preventive reason for having laws such as section 13. You put forward the proposition that it is not used very much. Therefore, why would we be doing away with something? Why would we pay so much attention and why would you write big reports on it to do away with a section of the Human Rights Act that is actually not in use?

Mr. Moon: The principle reason is when I refer to it not being used very often, I am referring to cases that go all the way through to adjudication and result in the issuance of an injunction. It is used most often at the entry level, but most of those complaints are dismissed following an investigation. I think we need to be concerned about — as they say in the United States — the chilling effect on speech that might in fact not be caught by the provision but is investigated over an 8-month or 10-month period in which an individual has to account for his or her speech and respond. One needs to think not just what comes out of the end but what goes into the process to begin with.

In terms of symbolic value, the Criminal Code has far greater symbolic value as a public statement concerning the unacceptability, the odiousness of hate speech.

The Chair: I will have Senator Eggleton and Senator Munson ask their questions, and then Professor Moon may answer both questions.

Senator Eggleton: Getting off the legal argument for a second but following up on Senator Baker's comments, if we were to support this bill that removes section 13 from the act, what do you think the Government of Canada should do to promote and protect free speech from the harms of hate speech?

Senator Munson: How does Canada's approach to addressing hate speech compare with other countries, particularly with hate propaganda on the Internet? In other words, do other countries have legislative models that Canada should consider or should avoid adopting?

Mr. Moon: I will start with the second question first, and that is to say I think the model we first ought to avoid is that of the United States where there is in effect no significant regulation of hate speech in which a very libertarian understanding of free speech has been adopted and there is no regulation.

In other jurisdictions, there are a wide range of responses to hate speech. In some cases or places what counts as restricted speech is more broadly understood. As you may know, in different jurisdictions certain very specific forms of speech are prohibited, such as Holocaust denial.

In many respects, Canada has been a leader in this area and, while we need to take into account and consider what other countries have done, I think we have developed and tried different responses and they have been significant.

As I say, there are plenty of reasons to think that section 13 is not the ideal model. Other jurisdictions have something similar but I cannot speak, at least at this point, intelligently to say exactly how successful their experience has been. I believe this model has been pretty exceptional.

With regard to the first question about what ought to be done, I can only reiterate what I said before. First, we need to find out or investigate what is actually happening on the ground with the Criminal Code, in particular in terms of the resources that are allocated to the investigation of hate speech issues or complaints; second, with regard to the number of times and the outcome of requests for consent from attorneys general in different provinces. The fact is we do not know enough about that.

The government has to give serious consideration to the resourcing of police forces — and one needs to speak specifically about the provinces in this regard — to ensure that the Criminal Code provisions are effectively enforced. Therefore we need to think about resourcing matters and, of course, that has complicated questions about provincial jurisdiction.

The Chair: Thank you very much, Professor Moon. We appreciate you making yourself available for us today.

Senators, we were not able to connect with Ms. Eliadis, but she has provided remarks. May I have a motion to file her presentation as an exhibit to our proceedings?

Senator White: So moved.

The Chair: Thank you, Senator White.

From the Canadian Bar Association, our next witnesses are Mark H. Toews, Member of the Executive, Constitutional and Human Rights Law Section; and Kerri Froc, Staff Lawyer, Law Reform and Equality.

Thank you very much for being here.

Also, by video conference, from the Canadian Civil Liberties Association, we have Cara Zwibel, Director, Fundamental Freedoms Program.

Please proceed with your presentation.

Cara Zwibel, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association: I would like to thank the committee for inviting me to participate in discussing Bill C-304.

The CCLA is a national non-profit and non-partisan public interest organization. Next year CCLA will celebrate 50 years of promoting respect for and observance of fundamental human rights and civil liberties. The fundamental importance of freedom of expression has been a cornerstone of CCLA's work since its inception. At the same time, CCLA has always promoted equality and fought and campaigned against discrimination.

While we understand that section 13 of the Canadian Human Rights Act was enacted in an attempt to combat discrimination and promote equality, we have been advocating for its repeal, and for the repeal of its provincial counterparts in some provinces, for many years, including by participating as interveners in many court cases where the constitutionality of hate speech provisions has been raised. We support the proposed repeal of section 13 of the Canadian Human Rights Act because we believe that a mature democracy does not achieve equality by limiting freedom of expression.

I am going to focus my opening statement on a few interconnected reasons that CCLA believes section 13 should be repealed. First, human rights tribunals are not an appropriate body to deal with the prosecution of hate speech. I know that you heard from Professor Moon this morning, and I assume that he mentioned this issue as well, as it was a fundamental part of his report. However, the Canadian Human Rights Tribunal is charged with interpreting the act in a broad and generous way, and it needs to do that to combat systemic discrimination and to help achieve substantive equality because, as we know, more subtle and systemic forms of discrimination are more commonplace than the most obvious and blatant types. The tribunal is charged with interpreting its statute very broadly, but when it comes to the hate speech provisions it is told to be very narrow in its interpretation. The courts have said that only the most extreme forms of hate speech are caught by section 13. This is the kind of speech that compares minority groups to animals or pests, that suggests that the groups' elimination from society is the only answer to society's problems. This is the very extreme end, and confining hate speech to this small subsection of offensive discourse is necessary because of the importance of protecting freedom of expression, but it is also completely counter to what human rights tribunals are used to doing. It places both the commission and the tribunal in the unenviable position of having to tell some groups, for example, that even though statements written on a website about a particular group are extremely offensive and hurtful, they do not quite rise to the level of hate speech for the purposes of the act. In addition, the narrow reading of section 13, while necessary from a freedom of expression perspective, ignores the fact that many more subtle forms of offensive messaging may actually have a more harmful impact on minority groups and on society as a whole than the blatant and extreme hate speech that section 13 actually catches.

The second reason we believe that section 13 should be repealed is that it is an ineffective and inefficient mechanism for addressing the problem of hate speech and discrimination in our modern society. The complaints and investigation process is lengthy, and even though the tribunal has confined findings that the section has been breached to only the most extreme types of speech, merely controversial forms of expression may be the subject of a complaint and an investigation that will hang over the head of the subject of the complaint for months, if not years. This can place a real chill on expression that is controversial, perhaps even offensive, but not hateful within the meaning of the act. As a democratic society with a strong commitment to equality and to multiculturalism, Canada has an obligation to try to address discriminatory treatment and practices, but it also has an obligation to choose mechanisms to do this that are efficient and effective. Section 13 has proven to be neither, and it should be repealed.

Finally, while there are lots of different views about what kind of harm or damage hate speech actually causes, CCLA believes that focusing on prosecuting complaints at the tribunal is the wrong way to go about trying to achieve equality and root out discrimination. Resources should be directed at education and at countering hateful messages. It is worth noting that those who preach hate in Canada are a minority, and we need to consider putting mechanisms in place that would help facilitate powerful counter speech.

While we appreciate that Bill C-304 may not be where these changes will be made, we do believe there is a role for government in helping to empower ordinary Canadians to speak out when faced with hateful messages.

That is all I wanted to start off with as my opening statement, and I am happy to answer questions.

The Chair: Thank you very much.

Kerri Froc, Staff Lawyer, Law Reform and Equality, Canadian Bar Association: Thank you, Madam Chair and honourable senators. The Canadian Bar Association is pleased to appear before this committee today to address Bill C-304, a private member's bill to repeal sections 13 and 54 of the Canadian Human Rights Act.

The Canadian Bar Association is a voluntary association of 37,000 lawyers across Canada whose primary objectives include promotion of the rule of law, improvement of the law and improvement to the administration of justice. It is in the spirit of this mandate that the members of our Constitutional and Human Rights Law Section and our Equality Committee have made the comments that we have submitted to you in writing and we will speak today.

Mr. Mark Toews, an executive member of the CBA's Constitutional and Human Rights Law Section, is here with me today. I will turn things over to him to address the substance of our comments on the review of the bill.

Mark H. Toews, Member of the Executive, Constitutional and Human Rights Law Section, Canadian Bar Association: Thank you, Madam Chair and members of the committee. You have received our submission, and this morning I would like to provide a quick synopsis of CBA's concerns with Bill C-304 and reiterate our recommendations.

The CBA supports the retention of section 13 of the Canadian Human Rights Act. While we support the right to freedom of expression, it is important to note that no right or freedom is absolute. All rights and freedoms are subject to limitation by countervailing rights. The right to be free from discrimination — based on race, religion and numerous other characteristics — and to be treated with dignity is a countervailing right that can be a reasonable limit to the right of freedom of expression. It is a fundamental value in society — as fundamental as the value of free expression. It is also a value that is consistent with the spirit of the Charter, as expressed in section 15 of the Charter that deals with equality right provisions and section 27 dealing with Canadian multiculturalism.

Now is not the time to repeal section 13. The amount of hate messages in communications have not diminished over the years. The advent of the Internet, including email and social media, has made it possible to spread hate messages instantly and to a worldwide audience. The increase in bullying via social media among Canadian youth is one example of how hateful and harmful messages can spread rapidly and often end tragically.

Recently, the Honourable Justice Rosalie Abella of the Supreme Court of Canada publicly lamented the world's inability to eradicate human rights abuses more than 60 years after the Second World War. She noted: "We have still not learned the most important lesson of all — to try to prevent the abuses in the first place."

A culture of prejudice and discrimination is created when the dissemination of hateful and intolerant views is allowed unchecked. It starts with isolated comments, usually against vulnerable groups. Eventually, listeners and bystanders, after hearing the views often enough, begin to accept the comments and start to become fearful of the targeted group, leading to prejudice, discrimination and greater tragic results.

It is submitted that atrocities have occurred where such a culture was permitted to grow. We saw that with the Tutsis in Rwanda, the Falun Gong in China and the victims in Nazi Germany, to name just a few.

By voting to remove section 13 from the act, parliamentarians are in effect voting to allow the proliferation of this type of egregious speech in Canada and beyond via the Internet. This seems rather ironic given that at the same time the government is establishing an Office of Religious Freedom to promote and protect religious freedom and minorities abroad by opposing intolerance and promoting Canadian values of pluralism and tolerance, the same values section 13 is designed to protect.

Section 13 is an important tool in the federal tool box because it would help prevent human rights abuses before they occur. It provides a forum for complaints to be heard by an impartial tribunal and, if warranted, dealt with in a fair and transparent manner. If the tribunal finds that the hate messages complained of contravene section 13, the tribunal may order the author to cease and desist in further communication, and the messages will be removed from the Internet. The spread of hate messages is a form of discrimination, and section 13 is an important tool to protect and promote equality in Canada.

Section 13 applies to conduct that falls short of criminal behaviour but that nevertheless poses harm to vulnerable target groups. Without section 13, the only tool the state will have with this type of discrimination is the Criminal Code, and there are a number of challenges in order to successfully prosecute an individual under section 319 of the Criminal Code. There are a number of those, and time will not permit me to get into them. The obvious one, however, is the high standard of proof beyond a reasonable doubt. Also, it is more limited in its scope in that it does not deal with all aspects of discrimination; it does not deal with gender, gender-related characteristics and gender identity, age or disability.

We know about the Ahenakew case. Despite making the comments about Jews in the manner that he did, he was ultimately acquitted since the offence could not be proven at the criminal standard. The higher standard is appropriate, of course, given that the conviction could result in a two-year prison sentence and a criminal record. However, if this is the only tool that remains, it is foreseeable that hate messages, such as those that have been provided in our submission as examples, will proliferate and spread unchecked.

Canada has worked hard to promote a culture where people do not need to live in fear of being targeted by hateful expressions or being bullied because of their religion, ethnicity or other personal characteristics. Everyone should be able to live free of such abuse. By permitting hateful expressions to proliferate, one is condoning such and undermining the freedom of these vulnerable groups.

If abolishing section 13 is said to be for the sake of enhancing rights of expression, it would have the opposite effect on vulnerable and targeted groups. Expressions of hate are often designed to silence them and to instill fear in them. Negative stereotypes also undermine the group's status as legitimate or credible commentators, taking away their ability to defend themselves.

In conclusion, we know this bill has been passed by the House of Commons, and they may not identify a direct benefit in addressing the interest of the minority, so we have to rely on appointed bodies. We rely on them frequently with the courts and with the Senate to ensure that there is necessary protection for the vulnerable and for the minority.

These are exactly the kinds of issues where the Senate should exercise its authority and prevent this bill from becoming law.

Senator Ataullahjan: As a member of a minority community, I am wondering what effect this bill may have on minorities seeking justice on legitimate hate speech should section 13 be repealed. Would it be challenging to have their cases tried under the Criminal Code, and what about legal costs and access to courts?

When the Canadian Human Rights Act was drafted in 1977, what was the intention of section 13 if the Criminal Code already addresses hate communication? Is there a form of hate communication that was not adequately covered by the Criminal Code for which section 13 was established?

Mr. Toews: Those are all very good questions; I will see if I got them all.

First, I would suggest that repealing section 13 would have a detrimental effect on minorities. It is the vulnerable groups and usually minorities that are the subject matter of this kind of hate speech. That is already on the Internet and I would suggest it will only increase dramatically if this safeguard were taken away. It is our concern that such could lead to greater discrimination and prejudice.

There are a couple concerns about the Criminal Code. First, there is less access in the Criminal Code as opposed to through the Canadian Human Rights Tribunal, where the complainants can bring a complaint, have it investigated and go through that entire process. Access is more limited through the Criminal Code for a number of reasons. One significant reason is that you need the consent of the Attorney General's office in order to proceed in the first place, and of course we cannot limit or restrain the Attorney General in exercising his or her discretion in that respect.

I am not sure if I am answering all of your questions; hopefully, I have them all here.

The purpose is very different from the Canadian Human Rights Act as it is from the Criminal Code. The Criminal Code's fundamental purpose is to punish acts that are entirely offensive to the community at large. The Canadian Human Rights Act is in place in order to foster tolerance, to promote equality, to eradicate discrimination and it is also an educational tool. I would suggest that the Human Rights Acts — the provincial ones and the federal one — have had a profound effect on educating our society to be more tolerant, to promote equality and to eliminate prejudice.

The purposes of what they are trying to accomplish are completely different. The purposes in the Canadian Human Rights Act are very important when we are dealing with hate speech. We need a mechanism where tolerance and equality are fostered and prejudice is eliminated. Those are not the objectives of the Criminal Code.

Senator Munson: This is a question more out of curiosity in dealing with the Internet. The Internet has no borders; none, zero. We heard Professor Moon talk about the lack of any legal procedures in the United States. How does it work when someone propagates hate crime on the Internet, uses it, goes after a minority group with awful speech and directs violent speech? How do you, under this section or any section, go after someone who does that and has received those actions from someone in the United States?

Mr. Toews: It is very difficult. One can only go after those who have used the Internet within the Canadian jurisdiction, unfortunately.

Since the Internet knows no borders, it is critical that countries respect these international treaties. We need cooperation from all these countries to get it done. Canada must continue to do its part. We can only deal with people within our own jurisdiction, people who are posting these hateful messages within Canada, and trust that other countries will start to do their part more adequately as well.

Senator Munson: Professor Moon talked about section 13 placing a high burden on individuals bringing complaints forward. How would this not be similar to cases brought forward under the Criminal Code? Is not there a similarly high cost and time commitment necessary? When you are pursuing these criminal charges, in addition to perhaps a greater reluctance or stigma to bring complaints to the criminal justice system, it is a higher burden of proof. We have spoken about that, but would it not be tougher to go that route no matter what? I am still curious about what he said with respect to provincial Attorneys General. We do not seem to have any statistics on whatever they have done in the past decade or so.

Mr. Toews: I am not downplaying the challenge and the costs in either proceeding. That is a concern. However, this would be a scenario where I would suggest we cannot throw the baby out with the bathwater because while there are access-to-justice issues, even with respect to the Canadian Human Rights Tribunal, it does not mean we get rid of it altogether. There is still greater access for complainants under the Canadian Human Rights Tribunal. There is a process they can engage in by providing complaints. With the Criminal Code, there is even less access and costs are significant. Part of the challenge to the cost is that you must simply have the stronger case. You have to be able to prove, beyond a reasonable doubt, both the act and the intention. There are not a lot of cases going forward and that would suggest to me — I appreciate this is speculation on my part — a reluctance on the part of the Attorneys General to proceed with these matters because of the challenge to gain convictions. Very few cases go forward under the Criminal Code.

I can appreciate reluctance on the part of the Attorney General in saying, "What is the point of going forward if the conviction is so hard to obtain?" Access for the victims to have their matter heard and dealt with is very restrictive under the Criminal Code, far more than it would be under the Canadian Human Rights Act.

The Chair: I erred and I did not come to you after the first question, so feel free to answer Senator Ataullahjan's inquiry as well.

Ms. Zwibel: Just briefly, with respect to the first question, I do not believe that repealing section 13 will have a very detrimental impact on minorities. As I said, I think that section 13 has not been an efficient and effective mechanism for dealing with the problem of hate speech. If we look at that section on paper, in the Canadian Human Rights Act, it looks like a powerful and important tool. However, if we look at what has actually happened at the tribunal, the vast majority of hate speech cases that have been prosecuted by the Canadian Human Rights Tribunal, or the commission at the tribunal, have been at the behest of a single complainant — an individual who used to work at the commission and who had a personal mission to go out and deal with hate speech on the Internet.

This is not a tool used by a lot of minority groups, a lot of your average members of the community. Whether that is because the mechanism is unwieldy, costly and time-consuming or whether it is because they prefer to address actual acts of discrimination in a swift and effective manner, is unclear. However, section 13 does not have the amazing effect that we might think. It really has not been a tool to eradicate hate speech. With the kind of speech that is captured by this, for many of the individuals who are ultimately found to have breached the code the order does not mean much to them. They are not shy to go out and continue doing what they are doing.

Again, I do not think that repealing section 13 will have this detrimental impact.

As far as whether it is costly or whether the burden is different under the Criminal Code, the difference is that it is the Crown that prosecutes a hate speech complaint under the Criminal Code. The onus is not on a single individual to marshal all of the evidence. That onus is on the Crown. That is a very different process.

The Canadian Civil Liberties Association has concerns about the hate speech provision of the Criminal Code as well, but it certainly has more safeguards and appropriate due process built into it given the fact that we are talking about restricting freedom of expression.

Senator Munson: I am curious of what you think of White supremacists groups such as Stormfront, for example. Their logo is "White Pride World Wide." It is one site where you will find comments from individuals who are thrilled by what Bill C-304 could mean for this country. When you hear that kind of thing and if those people, whoever they may be, are listening to our conversation this morning, we as senators have an obligation to stand up for minorities and those who may be hurt. We are trying to do that today. When you hear this type of thing, what is your view on where they will go, besides having some of their comments move toward violent comments about minorities?

Ms. Zwibel: That is an excellent question. Certainly, I do not want to suggestion that we do not care or see this as a problem. We do. As far it being the government, the Senate or Parliament's job to stand up for minorities, the truth is that section 13 actually forces individuals to stand up for themselves. It does not give them any assistance in that process. It creates a process, but it is one that is very time-consuming and frankly can have, I think, counterproductive impacts.

If you look at one of the more controversial issues, the complaint made to the commission about the Mark Steyn piece, this is a situation where a minority group comes to a commission and says this is very hateful, harmful messaging and the commission has to turn around and say "not bad enough." We have a narrow definition and understanding of hate speech for a good reason. However, placing it in the bailiwick of human rights tribunals and commissions, to then turn around to minority groups and say we understand how offensive this and that it might be harmful but there is frankly nothing we are doing about it, is not the message we want to send from our human rights bodies. We want the Canadian Human Rights Tribunal to be an effective mechanism for dealing with discrimination, and complaints about direct discrimination and systemic discrimination should be dealt directly with that body. For complains about mere expression, it is not the appropriate place to do it.

I do not suggest there are no responsibilities that will come along with repealing section 13. I think we do need to consider how to create mechanisms that empower individuals to counter hateful speech and to address it, but I do not think section 13 has been an effective mechanism to deal with that. As you mentioned, the jurisdictional questions around hate speech on the Internet raise a whole other slew of concerns about whether section 13 truly is effective.

Mr. Toews: I hear a lot of comments about it being ineffective and only addressing very narrow segments. If it is ineffective, you do not get rid of it; you make it better. I do not understand where that approach is coming from.

The act has chosen to use the word "hate." That is an extreme word. "Hate" is defined as being something that is beyond mere offensiveness and repugnancy. There must be a line drawn somewhere. In our marketplace of ideas, we allow for disagreements, offensive comments and even repugnant differences of opinion. We allow a lot. What we do not allow is where it incites hate, which has been defined as extreme views of vilification, detestation. That is hate. That is the word that the legislation has indicated. That is where the line has been chosen to be drawn, and I would suggest that it is an appropriate line. If there are problems with the system, you look at making it better and creating better efficiencies, not throwing it out altogether.

Senator Andreychuk: Mr. Toews, you indicate if it is ineffective, make it better. In looking at this whole issue, the bill originally did not have section 13 in it. It was about discriminatory practices within the federal system, and a lot of them are employment based. There has been a lot of study and thought to develop this whole Canadian Human Rights Commission mechanism. Then we stick in section 13 as a response to an issue in Toronto and it sits there. It is not made better, it is not a proper fit into the commission, and we have struggled with trying to make sense of it.

Then we have another situation, and that is the Internet. It is no longer telephone messages; it is the Internet. That is put into place in 2001.

You are trying to say to me "make it better." First, what has the Canadian Bar Association suggested to make it better? Second, would we not be better off having a modern-day mechanism that addresses the Internet and the difficulty now of an international problem regarding hate?

The other half of that, of course, is that provinces put in commissions. The Whatcott case has now reduced the definition in certain ways; it took out some sections of the Saskatchewan legislation. Why are you so convinced that this is the best mechanism and that we are having a debate between keeping section 13 and the Criminal Code when in fact maybe it is time to stand back and ask, "What is it we are trying to accomplish in today's society that addresses hate in an intolerable way?"

Mr. Toews: First, I would suggest that it is the proper forum to deal with this issue. The Canadian Human Rights Act is there to foster tolerance and equality and to eradicate discrimination. The workplace is an obvious place it was dealt with, and the Human Rights Act was very much designed around workplace issues.

However, hate speech was identified to be a form of discrimination. In order to address and combat that, the appropriate piece of legislation to address it in is the Human Rights Act. A number of provinces have incorporated it into their human rights codes as well. I can only speak for my home province, Manitoba, which certainly has this type of provision. It is the proper fit. It meets the objective of the Human Rights Act, which is the eradication of discrimination. Hate speech is a form of discrimination that needs to be addressed.

Once again, the reason why it was initially "telephone" is because it has to stay within federal jurisdiction. Federal jurisdiction was telecommunications, so it addressed it that way because it was found that individuals trying to use hate speech to get out of provincial jurisdiction were using telephones. The federal jurisdiction had to address this issue through section 13.

With respect to the Internet, it has been determined that the Internet, which is essentially telecommunications as the courts have defined it, falls under federal jurisdiction. To provide clarity to that point, "Internet" was brought in as well. There are other factors why it was indicated for Internet. Needless to say, it was very clear that "Internet" would fall under federal jurisdiction.

Now as hate speech has evolved, the Internet is the forum where hate speech is being proliferated, which is why the Canadian Human Rights Act, as opposed to the provincial human rights codes, is the legislation where it is best suited.

The Criminal Code is not an adequate substitute. If we are talking efficiencies, the Criminal Code is not getting the job done, and there is no indication it will start getting the job done any better. There is much more work that can be done with the Canadian Human Rights Act in order to address this adequately.

I appreciate that I am going on long, but I am trying to address all of your points.

You ask whether the CBA should find ways of making the Canadian Human Rights Act better. That is a whole other discussion — and, trust me, there is a lot of discussion on that point. I will leave it at that.

Does the Canadian human rights process need to be addressed to make it more efficient? Of course. There are many other models in the provinces that have already done that, including Saskatchewan. What had been taken out of Saskatchewan were the tribunals, but the commission is strong and it has a lot of conciliation and mediation processes in place, even though the hearings are now being handled by the courts.

I hope this answers your question.

Senator Andreychuk: I guess you are still saying to me that section 13 belongs there and should be more efficient, but when I read the whole act, it is working on education, conciliation and all of those issues within an environment; that is, the employee, the employer, two employees. It is all to do with that area of concern. What this has symbolically become, "hate," is universal now. We have this universal tool in the Internet. Should there not be a response that is not Criminal Code or human rights but specifically addressing that, put into an education policy context, legislative policy and international policy? In other words, I think it is a crisis that needs to be dealt with that way rather than tinkering around the corners of whether to keep section 13. It seems the me that is where the debate has gone — that is, to keep the bill or not, to keep section 13 or not — when we are missing the bigger point of hate on the Internet, which is so pervasive and so different than where this legislation led us through the 1940s, 1950s and 1960s. I think we are in a new world and we need a new response.

Mr. Toews: Perhaps that is so. Perhaps we need more tools in the toolbox to address this issue. However, in the meantime, we do not get rid of the tools we have. I do not see anything in Bill C-304 that provides alternate solutions to address what section 13 is addressing.

Senator Andreychuk: I appreciate that. I am saying it is all failing the tests that I want put in place.

Mr. Toews: As I said, the solution is not getting rid of it. We need to work on how to enhance and provide greater and better tools in order to address this particular problem. In the interim, all I see in Bill C-304 is "let us get rid of section 13," and that is not the solution.

Senator Andreychuk: Ms. Zwibel, if I understood your point on this issue of hate — and correct me if I am wrong — if we leave it at section 13, it is put on individuals in Canada, whereas, in the Criminal Code, or elsewhere, it would be a community or a government responsibility. In fact, it would be our responsibility, as opposed to the individual. Is that what you were getting at?

Ms. Zwibel: Yes. The human rights process is complaint-driven. Presumably a Criminal Code prosecution under the hate speech provisions of the Criminal Code would begin with an individual making a complaint, but it would be taken up by the Crown. The Crown would be responsible for prosecuting and for adducing the evidence, whereas before human rights tribunals, it was an individual that must do that.

Your point about if you look at the act and then at section 13, it is a very different type of issue. When the Supreme Court of Canada looked at section 13 in the Taylor case, back in the 1980s, they talked about the role of the tribunal and the role of human rights legislation as being conciliation.

If you look at what cases section 13 has actually prosecuted, those are cases where conciliation would not be appropriate or even possible. These are situations where people have the most extreme, hateful views about particular groups.

I would suggest there is not a lot of good evidence that this is the stuff that actually leads to some of the discriminatory problems we have in our society. These websites are an extreme instance of a subculture of individuals. The readers who go to those sites are preaching to the converted. It is the much more subtle types of speech that can have the more insidious impact.

I agree with you that we need to think about what kind of tools to put in place to deal with that problem, but I disagree with Mr. Toews that we should not — I know the term keeps getting thrown around — throw out the baby with the bath water. We should get rid of section 13. It is a problem in a democratic society to have a provision on the books that is, first, ineffective at doing what it is aimed at doing; and, second, places a chill on freedom of expression.

The Chair: Mr. Toews, this issue has come up a number of times, and I would like your answer. Within human rights, you have a conciliatory meet-with-the-parties, and you were here when Professor Moon was speaking. I would like to hear from you as to how important it is to have that process, because not all hate speech is extreme. There is sometimes disharmony in society, but there is a way to bring people together.

Mr. Toews: It would be a shame not to have that process available. I appreciate that it is challenging to use the conciliatory process for matters such as this. It is not as obvious a route to go as workplace discrimination, sexual harassment or other matters covered by the Human Rights Act, but that needs to be available.

It is an educational tool where there are situations where it can be helpful to bring the parties together to work this through.

We are not giving enough credit to the conciliation process to try to work through these kinds of matters and use it as an educational tool for these individuals.

There is systemic hate where people are not necessarily intending to cause violence, but they have no clue how horrible the kinds of comments they are making are. Those are the situations that can be addressed through a conciliation process.

I am not saying it would be as common, perhaps, as workplace matters, but that tool needs to be made available. That tool is not available under the Criminal Code; there are no provisions for that.

I do challenge this idea that it is absolutely ineffective. There are cases that have been successfully brought forward to the Human Rights Tribunal and where Internet sites have been shut down. To say it is entirely ineffective is simply not accurate.

The Chair: When I have looked at human rights and the code in the past, I have seen that the Human Rights Commission and the tribunal look more at discrimination; the code looks more at extreme speech. Each has a place in society. I would like your comment.

Mr. Toews: It is true; they both have a place in society. The purpose of the code is to punish acts that are absolutely egregious and intolerable in our society.

I am repeating myself here, but it is extremely difficult to be successful in these kinds of prosecutions. Perhaps I am an eternal optimist. I would like to believe that discrimination is something that can be addressed and eradicated through changes in behaviour and attitude. That is the vital role that the Canadian Human Rights Commission and the provincial human rights commissions play in our society: to educate, work through and to bring parties together and bring reconciliation. It may not be a full reconciliation, but it is an understanding and mutual respect.

We underestimate the potential for the commissions to address matters in this way.

We cannot say that no one is affected by what is happening on the Internet and that it only speaks to the converted. That is what people said when the Nazis were having their meetings in basements. It is heard. People see what is on the Internet. People are confronted with it all the time. We underestimate the detrimental effect it can have.

Senator Hubley: Bullying and cyberbullying have been brought up several times in the presentations this morning. This committee has studied cyberbullying, and we know the dire consequences, in many cases, for Canadian children and youth. Are we sending the wrong message if we repeal section 13?

I would also like you to comment on the fact that with this repeal we may be diminishing our protection of minorities under the law.

Mr. Toews: Absolutely. That is an excellent question. In my view, in a bullying situation, there is the bully who causes the act and there is the victim. The innocent bystander who is watching is every bit as much a bully. They are not doing anything; they are not standing up for the minority. They are not helping out.

By repealing this act, we are all becoming innocent bystanders who are watching the bullying going on and doing absolutely nothing about it; we are tolerating it. That empowers the bully and victimizes and delegitimizes the victim and the targeted groups.

Absolutely, we are condoning acts of bullying and becoming complicit in the bullying by repealing section 13. I would suggest it is going to have a significant effect on targeted groups, which are usually minorities and vulnerable groups. It is sending a message to those hosting these Internet sites, and these bullies — if I can use that term, and I think it is an accurate term — that they have free licence to do more of this. They know they will not likely be prosecuted under the Criminal Code; it has not happened so far. Now absolutely nothing is going to stand in their way.

It is not just going to be websites now for their converted minority. They are now free to spread it wherever they can, because they know it is permissible and being condoned.

The Chair: There was a second question that Senator Hubley asked about discrimination.

Mr. Toews: If you could repeat the question.

Senator Hubley: By repealing section 13, would you agree that we are diminishing our protection of minorities and youth under the law?

Mr. Toews: Yes, we are. Once again, the discrimination is happening by these individuals that are making these hateful comments. They are creating a culture of discrimination by making these comments, which are being tolerated and condoned by society around them.

The discrimination will be allowed to increase and, particularly with respect to these minority groups, we will have been condoning this the whole time. Hate speech leads inevitably to discrimination. Countries where there have been atrocities, where there has been rampant discrimination, started with hate speech and it became acceptable. It went from there to become actual acts of discrimination.

One clearly leads to the other.

The Chair: Mr. Toews, I want to go to the cyberbullying question, and I will ask a supplementary question to the one Senator Hubley asked.

I do not know if you are aware, but the Human Rights Committee had an expanded study on cyberbullying. Our committee heard from Professor Wayne MacKay of Dalhousie University, and I will quote what he said:

. . . the Canadian Human Rights Commission could also play a role here, although I was going to suggest expanding section 13 . . . . of the Canadian Human Rights Act. I think that there would be potentially a role short of what might be seen as a kind of hate speech for cyberbullying or bullying speech, as well, being controlled in a human rights process, which does not criminalize it. The hate provisions of the Criminal Code I think have only successfully been used once in Canadian history, and have been tried a few other times.

Professor MacKay is an established authority on cyberbullying. He thought we could use section 13 of the Human Rights Act to deal with issues of cyberbullying. Have you given consideration to this?

Mr. Toews: I need to read this report; it sounds interesting. Yes, shame on me.

It would definitely be an avenue to explore. I am concerned because the way the act currently is worded is too narrow to cover cyberbullying, but clearly cyberbullying is a menace, an epidemic that needs to be addressed. I would suggest that bullying generally is an area where the human rights codes — not just the Canadian one but even the provincial ones — have done an inadequate job. It is definitely an area I would endorse looking into further.

Senator Eggleton: Mr. Toews, I think you make a powerful case for not removing section 13 until at least we have other improvements in the act. If we are going to talk about making it more efficient and effective, and everyone seems to think that makes sense, let us do that before we risk throwing the baby out with the bathwater, as has been said a couple times.

Ms. Zwibel, a few moments ago you said that subtle speech can have a more insidious impact, yet it is that kind of subtle speech that will not go to a Criminal Code prosecution, most likely.

I was wondering if you had, Mr. Toews, any example of where section 13 was used, any particular case, anecdotal information where it might have been used that would not have likely succeeded in terms of a Criminal Code prosecution?

Mr. Toews: There are a few I have in mind. The one I will mention is on page 3 of our submission, the Warman case. What this individual was saying about the Jewish community are horrible comments. I always feel uncomfortable repeating some of these comments, but when we are talking about society needing more soap and lampshades, it is ghastly.

I am not convinced there would have been a successful prosecution to this because I can well imagine this individual raising all sorts of defences saying, "That is not what I meant," or "That is subject to interpretation, and I certainly did not intend that other people start hating. That is not where I was going with this. You have totally misunderstood everything I am writing about here."

Then we have the first part, "Look, these are not hateful comments, these are just my own personal expression of factual scenarios that are going on," and the second part is, "You have totally misunderstood what I meant." These are the kinds of defences that are raised when we are talking about proof beyond a reasonable doubt, which may have a chance of being successful. On a balance of probabilities, clearly, this is hate. Proof beyond a reasonable doubt makes it a little more challenging.

That scenario, and there are other perhaps more subtle scenarios, when I think about even the Whatcott case that came about. Again, I always feel uncomfortable repeating, but when you say these horrific things about the homosexual community and you read some of the scenarios there, the Court of Appeal found that was not hate speech under the Canadian Human Rights Code. The Supreme Court brought back the original findings of the tribunal on two of these pamphlets. If the Court of Appeal found that was not hateful, what chance would that have had to go to the Criminal Code? There is no way he would have been convicted.

Senator Eggleton: I just read these Warman comments, and I can see why you do not want to repeat them. They are absolutely disgusting. The Ahenakew case, even though it did not go to a human rights commission or tribunal, but nevertheless he was found not guilty.

Mr. Toews: He was acquitted. That is the classic case which raised significant concerns about the usefulness of the Criminal Code.

Ms. Zwibel: I wanted to clarify, when I mentioned it is the subtle forms of speech that are often more dangerous, I was not suggesting that those are the kinds that would be caught by the Canadian Human Rights Act. The definition of "hatred" under section 13 and the definition that would be used in the Criminal Code are not substantively different. It is the same type of extreme stuff we are talking about. I do not want to suggest that the Canadian Human Rights Act is effective in addressing the subtle speech that can lead to discrimination, nor do I suggest that it should, because that would place an extremely significant infringement on freedom of expression. I think we need to start thinking outside the box, so to speak, to consider how we can address discrimination outside of these mechanisms.

Senator Fraser: I would like to come back to the question raised by Senator Munson about the borderless nature of the Internet. I take the point that we cannot do very much about hate speech that goes up on the Internet in other jurisdictions.

If we abolish section 13, what is the likelihood that Canada will come to be seen, at least by some people, as a bit of a safe haven for people directing hate speech elsewhere? I am talking about the really serious stuff. We are blessed: We live in, as has been said, a fairly peaceable kingdom, but there are countries all over the world where the threat and, indeed, the reality of inter-communal violence of one sort or another is very present, where people are killed for belonging to the wrong group.

Let me take a specific example. In Germany it is a crime to engage in Holocaust denial, for obvious historical reasons, but we have seen, in the past, Holocaust deniers functioning in Canada. With the Internet, how much easier is it to put up a nice German-language website aimed at Germans to do things that, under German law, you could not? How likely is this kind of thing to happen?

Mr. Toews: There is absolutely nothing that will prevent that from happening. One of the concerns I have is with regard to the unfortunate developments of this bill. Canada was regarded as a leader. We had section 13. It was something a lot of countries did not have, but other countries are starting to implement it, and here we are thinking about taking it away.

When people are looking at where are the safe haven countries, where are the countries where I can create the Internet sites, where are the countries where maybe the Internet site was created but can be recreated somewhere else, Canada will start shooting near the top of the list.

Senator Fraser: A nice place to live.

Mr. Toews: It is a great place, exactly. There is no downside now to making Canada the place to start posting these sites. Right now, if you want to post these kinds of sites, you have to be careful. It is better if it were created in some other jurisdictions that you can then look at. However, now there will be nothing to prevent these individuals from creating it here in our own backyard. I think we underestimate the degree to which these kinds of sites could proliferate if we take away section 13.

You are absolutely right with your example. There is nothing wrong with completely German-content websites that anyone in Germany can access. I am not saying they cannot access it from other countries, but Canada would be a welcome place where that could be created.

We should never take for granted that we are a tolerant country. There are plenty of tolerant countries that have reversed direction and gone in other ways. To be glib about it and say that we are a great, tolerant place, and to feel self-satisfied in that — I am thankful for that, for my own reasons — we should never take for granted that this is a permanent status that we have.

Ms. Zwibel: One of the things the courts have talked about, and one of the reasons there are no defences under the Canadian Human Rights Act to section 13, is that what the provision is aimed at is the impact, the impact of hate speech on society and on minority groups. While I can appreciate that we might be concerned about attracting fringe individuals to the country, in terms of the existence of the site, whether it is based in Canada or elsewhere, the impact is the same. We do need to think about the impact this is having and whether the existence of section 13 actually makes any difference to that.

The question was asked earlier: Are we removing protection for minority groups? We really do need to think about the ability of ordinary individuals to deal with this kind of expression.

Recently there was a campaign on the social networking site Facebook. A bunch of individuals found that some very nasty comments were being directed against women. They brought the issue to the attention of advertisers, and Facebook has changed its policy.

This is an example of where individuals are empowered. This hate speech that we are talking about is not what most Canadians believe, and that is where I think the tolerance of our society is an important thing to consider. This is not what most Canadians believe, and we need to provide a way for individuals to address and counter this speech.

Section 13 has not been that way, so I do not think we are doing harm to minority groups by repealing it. I think we do need to think of other ways to address it.

Senator Oliver: My question is for the Canadian Bar Association. When we look at Bill C-304 and section 13, we are really looking at hate crimes and freedom of expression. We know what the Supreme Court has said in terms of how they interpret when there is a right to have some limits on freedom of expression.

I was interested that Cara Zwibel said in her remarks earlier today that one of the reasons she would like to see section 13 repealed is that it places a chill on freedom of expression. Where do you draw the line and where do you think the Supreme Court would like to draw the line to determine whether or not there is that chill at all; and should it be seen as being a chill or something that is necessary to protect minorities?

Mr. Toews: I do not shed a tear about creating a chill on hate speech. If people are afraid of propagating hate speech and feel chilled, I think that is great that they feel chilled. I will start by saying that.

More important, and to your point, the Supreme Court has made a clear delineation of where the line is, and the line is pretty high. The Supreme Court made it very clear recently, and the Whatcott decision reiterated a lot of the principles. You can be offensive. You can even be repugnant. This is part of the discourse we have. To be clear — because this often comes up in some of these discussions — you can present theological views saying that certain lifestyles are immoral. That is not hate speech. However, when it rises to the level of these extreme emotional comments of detestation and vilification, that is where the line is drawn. Those are not the kinds of comments that are consistent with Canadian values of tolerance and equality, values that try to get rid of discrimination and eradicate it completely. Those are not values consistent with it. Therefore, it is perfectly appropriate to draw the line of freedom of expression at that point. Those do not need to be included.

With regard to this idea that we should just let the marketplace sort it all out, the vulnerable and targeted groups are the ones that will be chilled when this starts happening and when this gets propagated. They are the ones that will be silenced, so that we will not hear all points of view if hate speech becomes permissible.

Senator Baker: The mover of the bill appeared before this committee earlier and stressed two things: first, that section 13, which we are talking about, violates the Canadian Charter. He mentioned that four times. He also mentioned that after this bill passes, the government will look at changing the Criminal Code to take into account those persons who were originally covered under this particular piece of legislation.

First, I would like for you to verify that although the mover of the motion mentioned four times that it violated the Canadian Charter, we have had every court of final decision that I know of — namely, the Supreme Court of Canada — say that this section is perfectly constitutional. Am I correct in saying that?

Mr. Toews: That is absolutely correct. It is constitutional. The courts could not be any clearer on that point. These issues have been raised a number of times, and the Supreme Court has repeatedly and unequivocally said this is constitutional; it does not violate the Charter. It violates freedom of expression, but it is protected by section 1, which is an important tool in our Charter that says that it is perfectly justifiable, in a free and democratic society, to have these provisions. No, it does not violate the Charter.

Senator Baker: Also, former Justice Andreychuk of the Superior Court mentioned the recent Saskatchewan case. She said the Supreme Court of Canada made some changes to their similar legislation. Could you verify that, in fact, what the Supreme Court of Canada did was to sustain the constitutionality of the Saskatchewan provision — I think it is section 14 in their particular act — to take certain words out but sustain the constitutionality; and in the process, they referenced the section we are talking about today as it stood in the Taylor case, in which the Supreme Court of Canada drew the distinction between Criminal Code provisions and this section 13 and said, "Look, we need both of these, for different reasons" and sustained that. Could you also verify that?

Mr. Toews: Yes, I can verify that. Just to be clear: What was taken out of the Saskatchewan ruling were the words that are less than hate. Those were taken out, but the word "hate" was regarded as perfectly constitutional, was kept in place, was sustained. I can certainly verify your comment regarding the purpose and the support that the Supreme Court has shown for this particular provision.

Senator Baker: The exact words they took out, just for the record, are "ridicules, belittles or otherwise affronts the dignity of," but they maintained the main provision.

Let me get to the second point that the mover of this motion made that after this bill is passed, after we have eradicated this provision under the Human Rights Act, after we have done away with it, there is a year left for the government to come up with a solution to fill the gap. It is almost like saying to someone waiting for a heart transplant, "We will take you off life support while we wait for a new heart." It seems to me a rather strange approach to making legislation in Canada. Would you agree?

Mr. Toews: I absolutely agree. I do not understand it. We have his say so — and I appreciate that he is probably well-intentioned in saying that — but I have seen nothing that indicates to me that it will in fact happen.

Senator Oliver: It is not here.

Mr. Toews: It is certainly not in the bill that has been put forward. Pardon me for saying I am a little suspicious. In any event, it also does not make sense that, as you indicated, we abolish something first and then wait for something else to take its place. That defies common sense, and it is counterintuitive.

Senator Baker: I have to be fair to the government side here. They did bring in a piece of legislation in. Justice is saying,"Yes, they did," in which there were proposed changes to section 319 of the Criminal Code. Unfortunately, the major changes that were made were to allow the police, without a warrant, to monitor conversations on the Internet or to allow, on the basis of suspicion, production orders that would be able to monitor ongoing conversations. The government, in its wisdom — and I admire them for this wisdom — just withdrew the bill because of the public outcry against this intrusion.

Did you have a look at the provisions that were hidden away in Bill C-30, which was withdrawn, that allowed for two distinctive changes to be made to 319 of the Criminal Code? The minister claimed it was in answer to the removal of this section of the Human Rights Act.

Mr. Toews: We are talking here because we are trying to remember how it was actually worded. At the end of the day, it was not a helpful piece of legislation simply because of the offensive provisions that you pointed out. They were very disconcerting and put it in jeopardy with respect to other aspects of the Charter, which was a concern of the CBA and, as you mentioned, to other members of the public. Clearly, it was a flawed bill that, for whatever positive intentions it might have had, simply could not be brought forward.

Ms. Zwibel: If I can just go back to mention something about the Whatcott decision that was mentioned earlier, the Supreme Court has upheld the constitutionality of hate speech provisions — in that case, the Saskatchewan provision — but they have not said that they are constitutionally mandated. There has not been a suggestion that this is something we need in order to fulfill the equality guarantee, for example. The Charter sets a floor below which we cannot go, but it does not set a ceiling. This bill is aimed at, I think, expanding protection for freedom of expression.

I also just want to clarify that when I talk about the chill, I am not talking about chilling hate speech. I am talking about chilling controversial speech because, despite Mr. Toews' submission that the definition is clear, I would suggest that the definition of hate speech, despite the Supreme Court stating it in Taylor and reiterating it in Whatcott, is not clear. That is obvious when you look at a number of cases that have gone from the tribunal level to various courts. In each case, the tribunal and the courts, applying the same standard, have come to different conclusions about whether the speech at issue is hate speech and meets that definition.

I have forgotten the second part of the question that Senator Baker asked.

Senator Baker: As the chair pointed out, that decision by the Supreme Court of Canada that you have referenced involves provincial law at the Saskatchewan level, but the Supreme Court of Canada did, in paragraph 105, address section 13 of the Canadian Human Rights Act with approval and concluded, in 106, as to the need for it. I quote: "Having canvassed the proposed alternatives to the civil law remedy, I cannot say that any one represents such a superior approach as to render the others unreasonable." That is a pretty good way of saying it. That was what I had referenced, and you wanted to comment on it.

Ms. Zwibel: My interpretation is that from the Supreme Court of Canada's perspective this is a reasonable approach to dealing with hate speech, but it is not the only approach. The question you asked, though, about revisions to the Criminal Code, I did want to address. I think you are talking about what the government calls the lawful access bill, which some members of the Canadian public have referred to as the cyber-surveillance bill. Obviously, as the Canadian Civil Liberties Association, we were very concerned about the impact that that bill would have on privacy. I actually do not think it addresses the issue that is before you today. I do not think it does anything to enhance protection of minorities or to deal with hate speech more effectively.

Senator Baker: The Canadian Civil Liberties Association concludes that they did not agree with what was in Bill C- 30 to address the removal of what we are removing here today in legislation. You did not agree with the bill at all, any provision in the bill; is that correct?

Ms. Zwibel: It was a colleague of mine who was looking at that bill, so I do not know specifically, section by section. I know we were very concerned about a large portion of that bill.

Senator Baker: It was section 7, if you ever get a chance.

The Chair: I want to ask this of the Canadian Bar Association. The sponsor of the bill said something this morning that has really left me with an uneasy feeling, and it is to do with tribunals. My colleagues will correct me if I misrepresent him. The cases will be heard by real judges now, and lawyers will be there. In our country, there are many tribunals that do very good work, and we have great respect for the work that the Human Rights Commission and tribunals do. I wanted you to comment on the fact that that is not unusual in our country. We do have tribunals that adjudicate. To put it out that you need a real judge and lawyer to hear a case left me very uncomfortable.

Senator Andreychuk: Who said that, please?

The Chair: The sponsor.

Mr. Toews: I will just share from my own personal experience; I do a lot of labour relations work. Probably three quarters of all of the hearings I do are not in front of judges. I appear before labour boards and before consensual arbitrators. These are not judges; yet, these are respected citizens who have demonstrated the ability to understand these issues. They are experts in these issues — on these topics — and we trust them. I would not want to go to a judge on those particular issues. These are the experts that have a much better grasp of the issues that I am coming before them on.

To denigrate tribunals generally is completely inconsistent with how our whole justice system works. Our whole justice system is built upon administrative tribunals that have expertise in various subject matters. When we are dealing with finding and determining breaches of human rights, these are the experts. They have proven, in our system, to have great expertise and knowledge of the subject matter.

Senator White: If I may, Mr. Toews, you made a comment at the beginning in relation to proof beyond a reasonable doubt not being required. Now we are talking about finding of guilt, in a way, under section 13. None of the tribunals you are referring to now do that. I suppose that is the difference. I have appeared before a number of tribunals and I am a big supporter of them.

Senator Baker: Before judges as well.

Senator White: Before lots of judges, about which I will say nothing negative.

However, it typically is not about a finding of guilt. In Canada, the test is "beyond a reasonable doubt." As a police officer of 31 years, I would have argued many times that that was a heavy test and one that I did not always appreciate, but we are not using that test in this case. I am challenged by how the Canadian Human Rights Act could find guilt without affording someone the test of "beyond a reasonable doubt." If I am challenged by this legislation, if I am challenged by the repeal, I am not sure it gives enough protection when I think our courts do give the protection, as difficult as it is. That is why I tried to ask a question of our witness earlier about how we can change the Criminal Code to make it more applicable to hate crime. I do think it is challenging in needing the approval, for example, from the Attorney General. Personally, I think that is a bit much. I would rather be able to lay that charge either with Crown approval in some provinces or police discretion in others. I am challenged by not affording the test of "beyond a reasonable doubt" that we do with everyone else before we find them guilty. If anything sways me to support this legislation, that is the part that does. I would like to have your response to that.

Mr. Toews: The purpose of the act is not really about punishment and guilt. The purpose of this act, as I have indicated, is to foster tolerance, equality and to remedy the situation. It is not to find guilt. It is not punishment.

I did not talk about this much in my oral presentation, but you will note from our written materials that we are opposed to the penalty provision in the bill. That is not consistent with the purpose of the Human Rights Act.

When we are not dealing with findings of guilt and punishment, but looking for more remedial mechanisms to resolve this issue, it is perfectly appropriate to use "balance of probabilities" as the evidentiary basis as opposed to "beyond a reasonable doubt."

Senator White: I do not want to be argumentative, but there is a perception that there is a finding of guilt and certainly there is a penalty that comes with that. I agree that you are challenged by that, but from the public's perspective and having some of the organizations I have worked with appear before the Canadian Human Rights Act, there is that perception that there is a finding of guilt, whether it is called that or not. You, yourself, referred to the test of beyond a reasonable doubt not being there.

From my perspective, I do not believe proof beyond a reasonable doubt should not be afforded. I have had the case of balance of probabilities typically in labour relations and not typically ones that have a similar or like offence under the Criminal Code of Canada. I have had the test of balance of probabilities, but it is typically not as closely related to something found in a federal statute like the Criminal Code of Canada.

That is more of a statement than a question.

Mr. Toews: I would simply say that a balance of probabilities in other than criminal matters, where there is a potential of serious punishment, having freedom taken away, serious consequences, that is really the only avenue I can think of where the test of beyond a reasonable doubt is actually applied. In all other forums, including wrongful dismissals, it is only on the balance of probabilities, but if you are fired for just cause, that looks bad and it is only on a balance of probabilities.

In all other aspects of our justice system, we use the test of balance of probabilities, and that is appropriate. If you can prove this is more likely the case than not, you have proven your case. We should be only talking about the criminal area where the standard is that much higher because of the significant repercussions it would have on an individual should they be found guilty.

Senator White: I believe it is a significant repercussion under the Canadian Human Rights Act as well. The stigma alone is significant. That is really the point we are trying to make. I do believe we need to expand the Criminal Code of Canada when it comes to hate crime. We need to have greater ability to lay charges, to prosecute and to convict. I am just not sure that section 13 is not being used as that hammer at this point in time. I realize the process may not be easier, but it is easier to make a complaint, to start a process and to start swinging that hammer than it is under the Criminal Code of Canada.

Senator Zimmer: You have touched on it a bit, but there are the four Ps: What are the penalties, the punishments, the penance and the pain? Lashes, caning, throw in the crowbar, whatever, but we are only halfway there. Senator Munson raised it also.

Cyberbullying starts at a young age. Kids do it. You get a teacher saying, "They are just being kids," so there is no punishment or consistency. At your level it is one thing to say, "Okay, these are the penalties criminally," but let us go beyond that. How do we get beyond the inconsistencies of judges and courts? How do we make them consistent to bring pain and punishment to the ones that are doing the crimes? I realize you can only go so far, but how can we move forward to ensure that there is pain so they do not do it again?

Mr. Toews: That is a very tough question because there are no easy solutions to this particular one. When we are dealing with the act as it currently stands, going back to the purpose of the act, it is intended to try to ameliorate the situation, to try to get rid of discrimination, and there are tools available to the commission in order to do that. The ones that the Canadian Bar Association supports are those that remedy, those that shut down these Internet sites and compensate the victims if there are any losses that are sustained.

With our legal system, if I may be so bold to say, it is always a work-in-progress in the way our system works. We rely on precedents and past decisions. We are constantly evolving and adjusting how things will work better. Things are becoming increasingly clear because we are building a body of law, a body of authorities, even on matters of hate speech, as to the criteria and the indicia that are appropriate or not, and we are applying them to try to create consistency throughout.

We are a long way away, but in being the eternal optimist, I look at how far we have come. We have come a long way, but clearly there are still a lot of gaps that have to be addressed.

The Chair: Ms. Zwibel, do you want to add anything?

Ms. Zwibel: No, I do not have anything to add.

Senator Baker: As a matter of information, I believe you mentioned in your brief that you were opposed to the penalty provisions of this particular section of the Human Rights Act. However, I seem to remember that, just about six months ago, Justice Mosley of the Federal Court ruled in Warman that the penalty provisions were unconstitutional, so why is it in your brief?

Mr. Toews: It is there because it is still in the act. We take the position that when something is found unconstitutional, take the wording out. It is messy; it is not necessary; it is not good drafting; it is confusing to the public if there are laws on the books that the court will not even recognize. Until the Supreme Court actually agrees, there is always the risk that other courts could take a different point of view.

We take this position: We agree with the conclusions from that particular court decision, so let us just take it off the books then.

The Chair: Ms. Zwibel, a number of times this morning when you were making your presentation you said that there are other methods. Multiple times you said there are better ways to address hate speech than with the Human Rights Act, such as education. Are these two mutually exclusive? What other methods would you suggest?

Ms. Zwibel: I do not think they are mutually exclusive. I mentioned counter-speech, and that is because there are a number of examples. The United States has robust protection for freedom of expression, which includes expression that in Canada might be considered hate speech and over the line. As a result of the absence of laws that prohibit those kinds of expressions, individuals often develop creative ways to address hateful speech. Some of you may have heard of a pastor at the Westboro Baptist Church in the United States who engages in some very disturbing and distressing behaviour with anti-homosexual statements and comments. He is the individual who goes to military funerals and protests. This is not only an offensive message but also an extremely offensive place to express those views. In the United States, some individuals have formed a network that attempts to shield the family from such individuals. They create a circle around the family to try to prevent them from being faced with these terrible messages and to show their support.

I have another example involving the same church. An organization purchased the property right across the street from the church, painted it in rainbow colours and started a fund to assist anti-bullying programs. They have confronted the message, not censored it, and tried to counter it.

In my view, one of the harmful effects of provisions like section 13 is that it can amplify the kinds of speech it is trying to silence. In the Whatcott case, he distributed fliers to homes in Saskatchewan. Without a complaints process and without being taken to the tribunal in Saskatchewan, the individuals who received those letters probably would have been the only people who heard his message. However, because of the prosecution, he had a national forum. He was at the Supreme Court of Canada, and the messages that are considered hateful are appended to the Supreme Court judgment so everyone has the opportunity to hear from him. I have to say that I do not believe that the decision of the Supreme Court has deterred him in any way. I do not think it has had an impact on his desire to spread the message. In fact, he is now online and using Twitter and other sites to reach people who want to hear what he has to say.

A provision like section 13 can have a perverse impact. Even though I do not think education and other programs are mutually exclusive from section 13, as I have said, I just do not believe it has been an effective and efficient mechanism for dealing with this problem. I believe it has had a chilling impact on freedom of expression because the definition of "hatred" is inherently subjective. In the Whatcott case, the tribunal found that they were all hateful messages. The Saskatchewan Court of Appeal disagreed. The Supreme Court said two messages were and two messages were not. We have learned tribunal members and judges looking at the same speech, applying the same tests and coming to different results. That is not a clear standard. When it comes to restrictions on freedom of expression, we should insist on clearer standards.

Mr. Toews: I have a couple of comments in response. I disagree with the last comment made about it being subjective. That does not mean there is not a trace of subjectivity — that goes for all definitions. You cannot just limit yourselves to legal slogans that are void of subjectivity. They do not exist. These are objective. We are talking about whether a reasonable person in the same situation would be instilled with feelings of detestation and vilification. We are talking about the reasonable person here and an objective standard. This has been addressed and clear guidelines have been created by our authorities through the case law that has provided an element of objectivity. I disagree that it is subjective. That does not mean there is not a trace of subjectivity, but that goes for every single legal slogan you can come up with.

As a quick point, this is also an educational tool for everyone else. If Whatcott was permitted to keep distributing this, and he would have continued, perhaps the case is highlighted for everyone by making the public aware that this is happening and that it is not acceptable. They need to be conscious of this, and steps need to be taken to shut this down. This is an educational tool for the public at large.

The Chair: What would the elimination of section 13 mean for social media communications?

Mr. Toews: However much hate speech is currently on social media, we could expect it to increase exponentially. This will become a safe forum for hate speech. Social media should be a safe place for vulnerable groups. If social media becomes a place where vulnerable groups feel discriminated against, marginalized and delegitimized, then it would be a severe problem.

Ms. Froc: If I may add to that, the studies of social media cyberbullying and the people targeted on that basis indicate that sexual orientation is a major issue. Gender discrimination against women is also a major issue. People are being targeted and bullied on the basis of the kinds of characteristics referred to in section 13.

The Chair: What bothers me about this is that women, age and disability are not covered by the code. The bill proposes to get rid of section 13, but those elements are not covered by the code. Where will these people go for protection? We have heard from the sponsor of the bill that the minister will fix all of that, but we do not know that. At the moment, they will not have any protection. The other groups that have not had any protection under section 13 or the code are gender identity people. I would like your comments on that.

Mr. Toews: I absolutely agree. A fundamental problem is relying too much on the Criminal Code because it does not cover all aspects of discrimination. Significant aspects of discrimination are excluded, which is very problematic. I agree that section 13 needs some improvement as well, in particular with respect to sexual identification and sexually related characteristics.

As a plug for some provinces, we could take an example from some provincial human rights codes that have already addressed this issue.

The Chair: I want to thank Ms. Froc, Mr. Toews and Ms. Zwibel. We have appreciated the presence of all three of you here today, and we thank you.

Senators, we have distributed a new agenda with an additional witness from Calgary. Earlier, we were not sure whether we would be able to find a place for the witness who was unable to connect with us because of the situation in Alberta. Happily, we have found a place from where she can appear via video conference. Professor Mahoney will be a witness this afternoon.

We have distributed to members of the committee the inter alia report that the steering committee has looked at and approved. We would like to discuss that at the end of today.

Honourable senators, as we welcome the next panel, I want to take this opportunity to extend the whole committee's support for Albertans, especially Calgarians. Professor Mahoney is in Calgary at the moment.

I know that you had some challenges in getting to the place where you are, and we appreciate your effort in ensuring we could hear from you. On behalf of the committee, we want to let all Albertans know that you are in our thoughts and prayers. We know you are going through a difficult time as you rebuild and recover from the natural disaster, but I wanted to send you a message from the Senate that we are all there for you as you rebuild.

Thank you, Professor Mahoney, for making the effort to be with us today.

This afternoon we will look at section 13 of the Canadian Human Rights Act and, if it is repealed, what the effect will be on women. We will start with Professor Mahoney, if you please.

Kathleen E. Mahoney, Professor, Faculty of Law, University of Calgary: Thank you very much, Senator Jaffer, and thank you for your kind words about Calgary. I think the city is responding in the typical Calgarian fashion. I do not think it will be long before we are back on our feet again. We do very much appreciate your kind thoughts.

I am happy to be here today. Thank you so much for inviting me to present my views about section 13 and its impacts. I provided the committee with a written submission, which is in the form of an essay. I thought you might appreciate that in terms of all of the other materials you are getting. I looked at the other submissions, and they are very good and I agree with them.

I took a position in the essay I provided you because I think sometimes we are overwhelmed with messaging that comes from the media, in particular. I think all of us trust the media to a large extent and we trust them on the freedom of speech issue. This essay, essentially, is about the fact that I think the media gets this wrong when it comes right down to it, and they have persuasively had an impact where they should not have had.

I started my remarks by quoting a very famous philosopher — probably one of the leading philosophers in the world today. His name is Jeremy Waldron. He was at Oxford and he teaches at Harvard, as well. I lifted one quotation of his: "The philosophical arguments about hate speech are knee-jerk, impulsive, and thoughtless."

I took that quotation and applied it to the Canadian media, in particular to their response at the recent Whatcott decision of the Supreme Court of Canada. The Whatcott decision was not about section 13 in particular; it was about the Saskatchewan human rights legislation that prohibits hate speech. Nonetheless, it raised the same issues that we are trying to grapple with today; namely, what is the right balance that should be achieved as between competing rights? This is all about balance.

I argue in this submission that the media does not get the balance right. Speech is its business; speech is what the media is all about. From a self-interested point of view, they do not want to have any limits on speech, and that is the way, by and large, the vast majority of their arguments go. They are decontextualized arguments; they do not look at Canada in the world in terms of this issue; they give very short shrift to the harms of hate speech; and they argue, in my opinion, incorrectly that the marketplace of ideas will solve this problem, that there is no place for the state in mediating this dispute.

I wholeheartedly disagree with that position. If you think of the marketplace of ideas and compare it to, let us say, the stock market, certain people can make investments in that marketplace. The media makes huge investments in the marketplace of ideas — billions of dollars of investments — so that it gets to control the message. It tells us what is going on in the world. People such as homosexuals or women, especially disadvantaged women — perhaps Aboriginal women, disabled women, women of a different sexual orientation — cannot afford to make those kinds of investments, so they do not get to hold the microphone. They do not get their message across.

As a metaphor, I think the marketplace of ideas is not a good metaphor to say that the solution to hate speech is the marketplace of ideas. Some voices completely overpower other voices.

This brings me to some of the underlying analyses that the media puts out in its arguments — as do others that essentially copy the media or echo their remarks, and we have seen that as well. However, they approach this problem of hate speech with a notion of formal equality; in other words, everyone is equal. That is a blind and decontextualized way to look at the world.

The Supreme Court of Canada in the Whatcott decision, even though it is about the Saskatchewan legislation, as I pointed out earlier, nonetheless probes into these deeper philosophical questions about what kind of a society we want. What are the competing interests and what is the context of these competing interests? This is the last word we have had on this issue.

I argued the Keegstra case way back 20 years ago, and the Taylor case. Both are discussed in the other submissions, as well as my own. The Keegstra case had to do with the Criminal Code provisions on hate speech. The Taylor case had to do with section 13 of the Canadian Human Rights Act.

Interestingly, both of these cases were heard together 20 years ago in the Supreme Court of Canada. In both of those cases, the Supreme Court looked at the Charter of Rights and Freedoms, looked at section 15 and at section 2. Their calculus in those cases 20 years ago was that in a free and democratic society that has equality as a constitutionally protected right, it must be balanced in section 1 against freedom of speech. When they balance those competing rights, they said that careful limitations on speech are perfectly fine in a free and democratic society. Not only are they perfectly fine, they are required in a free and democratic society.

Whatcott updated that decision because in the 20 years interim there have been real attacks on the notion of protection of minorities through hate speech legislation, and particularly in the media. The Whatcott case, which was about homosexual hate speech, gave the court an opportunity to revisit the issue. They revisited it in today's context, which is actually quite different. In my opinion, it compels more protections for those targeted by hate speech. So they made the decision in today's context, because today's context includes the Internet, which we did not understand 20 years ago. Then we did not understand Twitter or Facebook. We did not understand the proliferation of hate groups that would multiply exponentially once the Internet became a tool available to the masses.

I discuss that in my submission as well as the statistics of the exponential growth of hate groups. I also discuss a number of other interesting aspects of the more modern take on hate speech. Perhaps surprisingly, in the U.S., which is notorious for not having laws against hate speech, we are starting to see some movement. In fact, the FBI has said that hate speech is at the top of their agenda in terms of prevention of violence, terrorism and other acts that undermine the country's security, so it has become even a security issue.

Recently we saw the Boston Marathon bombing. We have seen horrific acts of bullying on the Internet that have resulted in teen suicides in our own country. We have experienced homegrown terrorism in Canada through use of the Internet in creating the baseline of hatred to start with and then using the Internet for things like instructions on how to build bombs and meet to plot and scheme against Canada.

I submit that we have to take a very careful look at what hate speech provisions can do. They are preventive. The Human Rights Act, as will be explained by other intervenors today, is not like the Criminal Code. It is preventive; it is educational; it is designed to eliminate hate speech through softer methods than the Criminal Code — through education, through persuasive mediation. That is why it does not require intent. Because of its purpose, hate speech legislation in the human rights context does not require intent; it focuses on effect.

When we watch CNN or any of the other media outlets, weekly or monthly we see a politician, a celebrity, or a big sports figure apologizing for the unintended consequences of their remarks made in the context of anger, humour or something like that. We know that people do not necessarily intend to create hatred against minority groups. They usually speak from a place of privilege or from a place where they do not live the daily lives of those targeted by hate speech, so they are forced to apologize.

Human rights legislation is designed to capture that type of speech. The Criminal Code is designed to capture intentional hate speech, which is quite different. Because the Criminal Code is such a heavy hammer, it has other threshold requirements to even be used. For example, to use the Criminal Code hate speech provisions there has to be RCMP or police involvement. The Crown has to determine the likelihood of success and, perhaps most important, the Attorney General has to agree to the lawsuit.

This is problematic for vulnerable groups to deal with, and it is often problematic politically. In some ways it is appropriate, I suppose, for criminal law to have safeguards before it is used because of the effects of having a criminal record.

The human rights legislation fills the void between no action and the most severe legal response, which is the criminal law. If we get rid of section 13 of the Canadian Human Rights Act, I believe that we will be creating more problems than are being resolved. I think that is very obvious.

Another important point to take into account is that after the Taylor and Keegstra cases were decided, Canada had an influence on —

The Chair: Professor, will you please you complete your remarks?

Ms. Mahoney: Sorry. I have said a lot and I would be happy to answer your questions.

The Chair: Thank you very much.

Please proceed, Professor Bailey.

Jane Bailey, Associate Professor, Faculty of Law, University of Ottawa: Thank you very much for inviting me to speak to this issue, which is important to me from an academic perspective. Also, I was co-counsel on the first case under section 13, acting for the complainant, Sabina Citron. I will not say how long ago that was.

I will begin with a quote from the dissenting justices in the Zundel decision.

A society is to be measured and judged by the protections it offers to the vulnerable in its midst.

In my submission, that is exactly what we are talking about when we talk about the repeal of section 13. My submission, respectfully, is that Bill C-304 should be rejected for three reasons. First, as Professor Mahoney has ably indicated, section 13 uniquely contributes to a balanced and multi-faceted approach in public policy terms to hate propagation in a democratic society that is constitutionally committed and obligated to co-equal protection of freedom of expression, equality, Aboriginal rights and multiculturalism.

Second, repeal of section 13 disproportionately burdens members of equality-seeking groups in the Canadian community. They are already rendered vulnerable to hateful attacks in light of social and technological realities that I will be talking about momentarily, and this is a vulnerability that, as Professor Mahoney has indicated, has been recognized through legal affirmation of human-rights-based protections against hate propagation in the Supreme Court of Canada's recent decision in Whatcott.

Third, repeal of section 13 would leave women and disabled persons in particular especially vulnerable because the Criminal Code provisions prohibiting various forms of hate propagation offer no protection on the basis of sex or disability.

In my opening remarks I want to focus briefly on the latter two of those points. With respect to the social, technological and legal context in which we find ourselves, I suggest that the context supports maintenance of section 13, because we are in a time of economic, political and social dislocation. These are the kinds of times that foster an atmosphere that is ripe for scapegoating of minority community members, and history has shown us many examples of those. We see manifestations of hateful acts both online and off.

In the off-line world, hate crime statistics are rising, and they did steadily between 2007 and 2009. Over half of those incidents targeted people based on race, 29 per cent on religion and 13 per cent on sexual orientation. Racialized persons — Blacks, persons of Arabic descent, persons of the Jewish faith and Muslims — are especially hard hit in those statistics.

Online we see generalized attacks on identifiable groups that are designed to demean and dehumanize the group as a whole as well as attacks on individuals that are based on their membership or presumed membership in identifiable groups. Included among the groups targeted are lesbians accused of pedophilia and child abuse; Black women demeaned as worthless, diseased and oversexed; Aboriginal women denigrated as worthless — to use the term — "squaws;" and Muslim women demeaned in terms of the exercise of their faith. These are examples drawn from the section 13 cases that have been decided already by the Canadian Human Rights Tribunal.

At the individual level, we also see attacks on individual women in online forums; for example, the AutoAdmit discussion board, which includes postings about particular women. This includes things like "reminder — insert the person's name — deserves to be raped"; fake postings suggesting that these women provided sexual services in exchange for grades; women who were labelled "Jew bitches" clearly deserving of being raped; and women being listed in threads labeled "which female Yale law school students would you sodomize?"

As this committee is no doubt aware because of its work on the issue of cyberbullying, for which I commend you, there is sound evidence that membership in a minority ethnic group, the LGBTQ community or being disabled exposes youth to a greater risk of cyberbullying and bullying in general. In other words, and this is an important point, a portion of cyberbullying is underlain by the very discriminatory attitudes and understandings that section 13 is aimed to get at.

As this committee is also well aware, research in this area suggests that the ability to operate anonymously or pseudonymously online may explain the growth and the vitriol of hateful online attacks. The breadth, dissemination and pervasive presence of the medium in our lives seems also to heighten its negative impacts, including to the point of driving targeted women off-line altogether — and in fear of their safety in the off-line environment — because of threats and targeting online.

More than one researcher, including Professor Wayne MacKay in his report on cyberbullying, has suggested the importance of human rights or civil rights-based remedial approaches to online harassment in group-based identity cyberbullying.

In sum, I have to pause to say I find it, given my course of study and my work, very ironic that at this stage in history that we should actually be discussing the repeal of a provision like section 13.

In my submission, evolving social and technological contexts in which we find ourselves clearly indicate that rather than retreating from a human rights-based approach like the one we have in section 13, we ought to be embracing it.

This brings me to my third point. Without section 13, equality-seeking groups such as women, persons with disabilities and those targeted on the basis of intersections between these and other axes of discrimination, would be left unprotected because the Criminal Code provisions do not include them.

In my respectful submission, conscious removal of these equality-seeking groups from the ambit of federal legislative protection would be difficult to justify in any context. However, it is particularly troubling in a social and technological context in which the vulnerability of these groups is rendered so clearly evident.

As we move toward proactive responses to bullying and cyberbullying, where we are trying to encourage our children and our youth to act with empathy, respect for diversity and equality and to behave responsibly online, Canadian policy-makers, this group and the Senate have the opportunity to lead by example, by refusing to repeal existing human rights protections for the vulnerable in our midst.

The Chair: Thank you very much, Professor Bailey. We will go on to Ms. Kolmes.

Jo-Ann R. Kolmes, Co-counsel, Saskatchewan (Human Rights Commission) v. Whatcott, Women's Legal Education and Action Fund: Thank you so much, honourable senators, for inviting me as part of LEAF, the Women's Legal Education and Action Fund, to participate. I was co-counsel along with Professor Mahoney in the Whatcott hearing. LEAF intervened in that matter and has a long history in caring deeply about this issue. Professor Mahoney is an exemplary example of this, having been involved in the Keegstra and Taylor cases on behalf of LEAF as well.

It is LEAF's submission that section 13 of the Canadian Human Rights Act is a very important human rights component and should be maintained and that Bill C-304, which would repeal section 13, should be rejected.

We have eight reasons for urging this. I will list them first and then explain a few of them to the extent that they have not yet been explained very ably, of course, by Professor Mahoney and Professor Bailey.

Here are the reasons: First, the targets of hates speech are often the most vulnerable and marginalized groups in society.

Second, hate speech is an extreme form of expression. It has been defined very narrowly, so that only a narrow band of expression is caught.

Third, hate speech causes harm to individuals, to the targeted groups and to society at large.

The fourth reason is that limiting hate speech promotes many other values and Charter rights that we hold so dear, including equality, multiculturalism and respect for Aboriginal rights. In other words, it balances the rights guaranteed under the Charter.

The fifth reason is that section 13 of the Canadian Human Rights Act is essential for women's access to justice.

Sixth, the Criminal Code is not enough.

The seventh reason is that section 13 gives effect to Canada's international obligations to prevent discrimination.

The eighth reason is that we, as the Canadian community, need to give a societal response to hate speech. The marketplace of ideas will not help resolve this problem.

I will offer some explanations in addition to what has already been presented in terms of the targets of hate speech being the most vulnerable groups — in addition to the listings that Professor Bailey gave — which appear in a very dramatic form in the human rights jurisprudence from the Canadian Human Rights Tribunal dealing with section 13 and really are chilling. I have read those cases and had not understood what was out there until I read those tribunal decisions. However, a very important example that has clearly linked hate speech to harm was the Manitoba justice inquiry into the death of Helen Betty Osborne, and there, Emma LaRocque, an indigenous person, talked about the demeaning and dehumanizing references to "squaw" and the effect that had in the ability of the young men who ended up killing Helen Betty Osborne to define her as other, and leading to her murder.

I move now to reason number two, hate speech being an extreme form of expression. A very important component of the series of cases that have come from the Supreme Court of Canada from Taylor and Keegstra, and now clearly affirmed in Whatcott and modified to some extent, is that the test to establish what is hate speech is very narrow. There is ample scope for criticism for political discourse, as long as it does not cross that line into the area that is so delegitimizing, dehumanizing. The Supreme Court in Whatcott gave very clear directions, which had already been developed by courts and tribunals, on how to define hatred in a very extreme form and in providing an objective test. Would the reasonable person informed of the circumstances determine that this form of expression is hate?

Third, on harm, there is evidence from a number of sources on harms to individuals, targeted groups and harm to the group itself — in terms of the lack of participation in our democratic process by those groups — but also, as was clearly enunciated again by the Supreme Court in Whatcott, the harm to society. This is because discriminatory acts increase as a result of hate speech, and because it can create social disharmony.

As Professor Bailey said, the amount of hate speech happening now and the increase is very much because of the Internet, and section 13 of the Canadian Human Rights Act is the only place where Internet hate speech can be addressed. The provinces do not have jurisdiction to deal with Internet. That is a federal matter. If section 13 goes, then there is no way to respond to Internet-based hate speech, other than the Criminal Code, but that is a very different mechanism.

The fourth point in our reasons is that prohibiting hate speech is promoting many sections of the Charter of Rights and Freedoms: section 15, equality; section 7, security of the person; section 25, respect for Aboriginal rights; section 27, preservation and enhancement of the multicultural heritage of Canadians; section 28, equal rights for male and female persons. I note that the background paper on Canadian anti-hate laws that has been prepared and has been before you has extensive discussion on freedom of expression under the Charter, but I did not see any discussion in the areas on equality rights under the Charter, protection for multiculturalism, or this panoply of other rights that need to be balanced.

One last point on Charter rights, a very important component that the court in Whatcott was very clear about, is that the freedom of expression of the targeted groups is very much affected. Their voices are silenced. Freedom of expression must be considered on both sides of this matter.

On the point of section 13 being essential for the access of women to justice — and this has been mentioned by Professor Mahoney and Professor Bailey — the Criminal Code does not list gender or sex as one of the grounds which hate propaganda relates to.

On a further point, there is no remedy in tort law. The Supreme Court has held that there is no tort of discrimination. The Supreme Court also held in the Malhab case that there is no group defamation claim available. The only remedy for women who have been targeted either as women or in our multiple identities — that is, racialized, Aboriginal women, disabled women — is through human rights legislation.

Professor Mahoney mentioned and has spoken eloquently about the Criminal Code not being enough. Human rights legislation is an educational and preventive tool. The Supreme Court has said there is room for a number of ways to address this problem. In our view, human rights legislation provides remedies and provides a much more accessible route for claimants to seek redress or compensation for themselves but also a systemic solution to the problems that exist.

The seventh reason is Canada's international agreements. Canada has signed a number of key agreements at the international level that are addressed at preventing discrimination, and the three of them are the International Covenant on Civil and Political Rights, ratified by Canada in 1976; the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by Canada in 1981; and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in 2010. All these agreements reflect an international commitment to prevent and eradicate hate propaganda.

Last, it is important for all of us together, as a Canadian community, to make a social statement that equality matters, that we want an inclusive society, that we reject discrimination and that we reject hate speech. The best way to do that is through the expression of our collective will, through legislation.

The Chair: Thank you to all three of you for your presentations.

Professor Bailey, I know you have done a lot of work on cyberbullying. You mentioned Professor MacKay saying that we should look at section 13 of human rights as a way to help people who are cyberbullied. Can you expand on that?

Ms. Bailey: I will clarify that. Professor MacKay does not refer to his report specifically to section 13. He refers to the human rights model for addressing group-based identity bullying in Australia. He most certainly does advocate for taking a human rights-based approach. It is interesting, with people such as Danielle Keats Citron writing on this in U.S., that people are asking for civil and human rights remedies. People like Professor MacKay are advocating for the use of these flexible mechanisms that address the harm in a different way and that recognize that this is a particular kind of harm that targets you on a very personal basis. That is something different from the sort of forum that you get in a criminal prosecution. I feel it is ironic that, at a time when we are looking at these kinds of restorative and more flexible mechanisms, we should deprive ourselves of the very mechanism that other jurisdictions, including the United States, are advocating for.

The Chair: He probably did not say it in his report, but when he was before us at the standing committee he did say, "I am going to suggest expanding section 13, regarding section 13 of the Canadian Human Rights Act."

Ms. Bailey: That is great. I heard him talk about human rights remedies but I did not see that. In fact, I have been in a painful process, along with my research assistant behind me, of reading 11 years of Hansard. That one got by me.

The Chair: It would not have been in Hansard because it was said in committee.

I would appreciate an answer from all three of you on this. If section 13 is repealed soon, women are not included in the Canadian Criminal Code when it comes to hate speech. What would the landscape look like?

Ms. Mahoney: I would not want to sound too dramatic about this, but it would certainly open the door for open season on women in terms of hate speech. We have seen women, especially recently, targeted in incredibly hateful ways on the Internet but also by terrorist regimes who are now targeting women as a group. We saw it in the Balkan Wars, where women were targeted for mass rape; we saw it in Rwanda. It has not been raised yet today, but the Supreme Court of Canada also decided the Mugesera case, an extradition case where they found that the crime that Mugesera had committed was a hate crime that led to the genocide in Rwanda. That case, perhaps more than any other case decided in Canada, points to the links between harm to victims and the power of hate speech.

Women are being targeted on an individual level through the Internet, as was explained earlier, as appropriate victims to be raped and harassed; they are also being targeted on the basis of these "intersectional ties" like their race, religion, and so on, to be murdered, raped and singled out as a despicable group; that is, women should not be speaking or be doing things; they should not be running for political office and they should not be educated. They are being targeted on the basis of things we would not have thought about 20 years ago; it is happening today. Why would we do something that would remove the small amount of protection, frankly, that is available in section 13 of the Canadian Human Rights Act?

It is certainly my view that what we should be doing is rethinking human rights legislation to be more articulate in looking at the problems we are experiencing today and developing the appropriate calculus that needs to be developed. I think the human rights legislation, frankly, is out of date. Even though there was this forward-looking legislative approach in section 13 when they anticipated that there would be this kind of Internet hate, nonetheless I think we should be putting our efforts towards trying to figure out how to deal with these new problems that are facing us not only in Canada but also around the world. Now with the globalization of communications, we are part of that world scene. We have to think of ourselves in that context. I think repealing section 13 is a retrograde step.

Ms. Kolmes: You asked how the landscape would look. I would submit that the landscape will be one of abandonment, isolation and silencing. There will be a sense of the community abandoning those who are in need of support as opposed to isolation.

Ms. Bailey: I am often accused, by my students especially, of being a little bit romantic about what law is. To be honest, if law is not about a statement of what we value as a community, I am actually not sure what it is. If the statement is that women are not deserving of the protection afforded on other axes of discrimination, then that is a powerful message coming from the legislators of this country. I find it worrying.

Senator Eggleton: Thank you to all three of you for your excellent presentations.

It strikes me that this bill goes in the wrong direction when it comes to amending the Human Rights Act. Rather than taking out section 13, we should be looking at other ways of strengthening the legislation to meets today's needs and to address the growing concern about hate speech and propaganda. Statistics that indicate that have been going up over the last number of years.

Taking it in a positive direction, I am wondering if the three of you might comment on how we can strengthen the Human Rights Act to better meet these needs.

Ms. Bailey: We could look at expanded grounds of discrimination. It is still under consideration with respect to the federal criminal legislation with respect to gender identity. I think that is a way we could expand human rights protections in a positive direction.

There are issues around cost and delay with respect to human rights proceedings. I think that resources are always something that will improve not only the quality of justice but the speed and access to justice for vulnerable group members. Those are some of the things I can think of off the top of my head.

Senator Eggleton: Could I inject one other thing before the other two of you answer? Is there anything, specifically at this point in time, that we could entertain that counters the concern that led to this bill and led to the suggestion that section 13 should be removed? We have heard comments from the sponsor and others about it being inefficient and ineffective and going too far. In addition to my first question, is there anything else that we could take to mitigate the concerns that resulted in this bill?

Ms. Mahoney: Looking at it positively, I think there are a number of things we could do. It would make a very strong statement if the Senate rejected this bill, for one thing. It would focus everyone's attention on the issue.

I think the Human Rights Act, as I mentioned earlier, could be brought more up to date and specifically mention cyberbullying. There could be a section added about that.

Cyberbullying can take the form of discrimination against groups, but it can also take the form of discrimination against individuals. In the cases of Rehtaeh Parsons and Amanda Todd — two tragic cases of teenage girls killing themselves because of cyberbullying — the bullying was focused on their gender, but it will not always be that way. It may be that way because someone is obese or from a certain country or wears certain clothing. The human rights legislation, as it stands now, is committed to its grounds: ethnicity, race, et cetera. I am sure you are familiar with them. When it comes to bullying, those grounds should also include other things, or that other things can come under the rubric of human rights legislation for the purposes of Canadian human rights legislation.

Another thing that obviously could be done is to include women in the Criminal Code enumerated grounds so women would have a criminal remedy if they are targeted in a very serious way. Right now there is a void, as has been explained. That would focus the attention on the issue and also be non-discriminatory. In my view, the Criminal Code is discriminatory at the moment because it does not protect women.

There is also an issue that has been around for a long time with respect to human rights legislation. Human rights legislation puts the onus on individuals to take a claim. In other words, it does not recognize that people are members of groups. When a person is attacked individually, their group is attacked as well. In order to achieve a human rights remedy, every individual must go before a Human Rights Commission and say: This is what happened to me, because I was Jewish, because I was a woman, because I was gay or because I was a fill-in-the-blank.

It seems to me it would improve our human rights legislation if the legislation recognized group harms in addition to individual harms. I think that would be a major, valuable change to the present state of affairs in human rights legislation.

There are many other things I could say, but those are three major things.

Your second question, senator, was with respect to how to counter the concerns that have been expressed and what led to this. That is why I framed my submission to you on paper in terms of the press. I think the press has had a huge influence on people's thinking in Canada.

Churches have also had an influence because they feel that they could be brought into the dock if they stand in the pulpit and condemn homosexuality, which they feel they must do, according to their religious beliefs. I address this in my submissions.

As we have heard from my colleagues, the way the human rights jurisprudence defines "hate speech" is very narrow. Churches and religious people, by definition, are supposed to be compassionate and understanding. That is not to say they cannot have the beliefs they want, but it seems to me a real stretch to say that we cannot have hate laws because it would interfere with religious instruction. If religious instruction cannot go on without generating hatred against an identifiable, vulnerable group, it seems to me that the churches have to rethink their notion of morality.

This is the last thing I am going to say. It is really interesting that there was a time when the churches were all for human rights legislation limiting speech. That was in the day when we were talking about pornography, because they saw it as a sexual morality issue, not an equality issue.

They were all for the Criminal Code. I remember back in the day — because I also argued the Butler case before the Supreme Court of Canada, which was the leading case on speech rights versus women's equality with respect to pornography — that the churches intervened on the side of women, but they made moral arguments. They said that this kind of sexual expression is immoral. Now they are saying it obviously cannot be immoral to generate hatred against groups.

I think the churches have to rethink their positions on what is moral and what is not. They can still the take their position against homosexuality, but what the courts are saying is you cannot take a position that generates hatred because it is so destructive to equality and our democratic society.

We should hit those issues head-on, too, and talk about them, instead of thinking that all of a sudden the Bible is going to be hate literature. I think that is a false argument, and it should be talked about.

Ms. Kolmes: First, in relation to countering some of the things that are said, one of the things I have been hearing and reading is the statement that people do not want to be offended, people want the right not to be offended. That seems to be the most common word I am seeing in the media. I think a way to counter that is to be clear that all the tribunals and courts since Keegstra and Taylor, and certainly now the Supreme Court in Whatcott, are very clear that hate speech is very narrow. There is wide scope to say offensive things, to be satirical, to speak about political issues, but this very narrow band is what is preventing that. Being offended is not the issue.

Second, although this is not in terms of aspects of the act itself but rather procedural, I think quite some time ago, when Jennifer Lynch was Chief Commissioner of the Human Rights Commission, there was acknowledgment that there are procedural issues that could be changed, perhaps through the statute or regulation, on methods of early applications of dismissal of a case that would clearly not constitute hate speech. There are some procedural solutions that may be — and I am sure are — explored.

Ms. Bailey: I want to go back to this inefficacy/inefficiency point because it is one I have thought a fair bit about.

First, it depends on what you say law is for. If law is about articulating that our community stands against this, then the provision is perfectly effective. We do not get rid of murder. We do not wipe murder off the books, because the law does not stop murder. We have never stopped murder with law, but as a community we stand together and say, "We do not tolerate this; this falls below our expected standards." I think efficacy is an interesting question.

The other thing I would say about efficacy is the thing to remember in the Internet context is that there are many players and many levels of the Internet. Included among them are service providers who are engaged daily in responding to complaints about content. Those service providers are affected by legal decisions that are rendered. Those decisions provide guidance to service providers about the kinds of decisions that they make every day about whether to let content stay or not. Far better we should be doing that with guidance from a public, accountable tribunal than allowing Internet service providers to make non-transparent decisions about this stuff on a daily basis.

Senator Eggleton: Good point, thank you.

Senator Andreychuk: We have all this emphasis on section 13 and women. I have heard very little in the communities of the concern of gender identity in the Criminal Code. I am wondering why that has not occurred.

If we look at the Criminal Code, it is where we, as Canadians, put down the marker and say, "You cannot go over that line; this is the consensus of the kinds of values we ascribe to," and also what you cannot transgress. You have all the discretions you want, but when you hit the Criminal Code, it is the voice of the Crown, on behalf of all Canadians, that you have to adhere to certain rules, or the consequences are laid out.

Why have we not had gender identity in the Criminal Code where we already have others? Can anyone help me with that?

Ms. Bailey: Discrimination. That is my answer: discrimination. As Professor Mahoney said, with respect to sex not being there, it is discriminatory. It is because these have been forgotten groups. I think the work of Egale has been incredibly important in bringing the issues forward about the LGBTQ community and trans-phobia. I think it is part of a transition where I think a group is finally finding its voice that needs to be heard, absolutely.

Ms. Mahoney: I agree. I think, Senator Andreychuk, it is interesting; it was not that long ago that Svend Robinson championed putting sexual orientation into the Criminal Code. You probably remember that. That was a big fight. There were all sorts of arguments, like slippery slope, criminalizing the Bible, so on and so forth. However, we gradually, as a society, developed such that we have become more tolerant. Ten years ago it would have been unheard of, for example, to allow gay marriage by law in Canada. Now we do because people gradually have come to the realization that equality does mean something.

It is startling to me that gender never made it into the Criminal Code provisions, but I do not think it was intended discrimination. It was probably unintended discrimination, this formal equality notion that has pervaded our thinking up until the Andrews case under the Charter that says people are not the same. People experience life differently. People experience speech differently. Women are often targeted, certainly in pornography, but in other forms of hate speech, as we have heard today.

I do not think that was necessarily top of mind. In the past we have been formal equality and positive thinkers. Now we think differently in terms of restorative justice. Look at the truth commission we are experiencing now in Canada. The place of Aboriginal Canadians in our psyche has changed, and the place of gay, lesbian and other sexual identities have changed our thinking. I think it is a matter of evolution. I think we are evolving.

To some of us, I guess, the evolution is too slow. Society is always behind the activists. Society, laws and legislators do not lead the country; they come after careful contemplation, especially a body like the Senate.

I think the time has come. I think the awareness is there. We have the fact-based, scientific evidence that demonstrates the statistics of hate speech and the effects of hate speech. We have these tragic suicides and we have knowledge now of how harmful the Internet can be. I think there are a variety of causes. I think it is unintended. I do not think anyone set out to disadvantage women or sexual minorities, but that is the way it has happened, and I think we should change it now that we understand. We have that awareness now.

Senator Andreychuk: I have a few comments to make. I still find it shocking that gender identity would be the last of sexual minorities, et cetera.

Professor Mahoney, you and I go back quite a few years. Why did we not pursue that as opposed to others? You pointed out Svend Robinson in relation to sexual orientation, that there was a move there. What happened to the women's movement?

I know in the International Criminal Court there was that push to make sure that rape was identified as a crime. I think that has had a singular effect across so many conflicts that you cannot use rape as an instrument of war and it is resonating now. It has not had much effect on the ground, but it is getting into the psyche of people.

I find it rather interesting that we are still discussing a very limited section 13 as the be all and end all when there are so many other issues we should be addressing if we really care to move our society to more equality and less discrimination as being an accepted form of speech.

Senator Baker: I am finding it rather difficult to question these three witnesses because I agree with everything that they have said. I have a great deal of respect for each one of them, for their history in the law. Because I do not disagree, let me ask you the question that is on my mind.

This is a private member's bill, introduced in the House of Commons, which passed the House of Commons. Normally it would pass the Senate, but perhaps it will not. Recently we have seen examples of things that have not, as far as public members' bills are concerned.

However, this bill, as you pointed out, removes the penalty or the section of our Canadian Human Rights Act under the headnote "Hate messages." If you were to tell an ordinary, reasonable Canadian that the section dealing with hate messages will be removed from the Canadian Human Rights Act, they would not believe you. They would say, "What?" It is a fact; it is being removed.

What puzzles me in looking at it is not that it is a public member's bill, and not that it passed the House of Commons. I was there for 29 years, and something like this could pass the House of Commons. What disturbs me is the number of persons and organizations that support the passage of this bill.

I would like to pose my question to each one of you. You know the organizations that support this bill or who have come out publicly, at least at the beginning of last year — and let us date that for a moment, since it might be significant — in support of it. Why is it that "Hate messages" is now going to be removed from the Canadian Human Rights Act, not be illegal anymore as far as the content of that section is concerned? Why is it that organizations are, incredibly, supporting this legislation?

That is my question. Who is first? There is hesitancy.

Ms. Bailey: I am happy to speak first. Having done work with some of those organizations and having had intense disagreements with them on these kinds of topics, I think it is a fundamental difference in philosophy. It is a fundamental difference in understanding what the priorities are. Freedom of expression is central to a democracy. That is table stakes. No one even has to talk about that. However, equality is also essential to democracy. As Ms. Kolmes was saying, we have to find a way of thinking about how we give due constitutional regard, as we are obligated to do, to both. There are differences of opinion about which should be given greater authority and deference.

In some ways, even the pitting of equality against freedom of expression is a false dichotomy. If this kind of expression, as the Supreme Court has acknowledged, undermines target groups' ability to participate in the democratic process by first having to justify the reason why they should be heard, then that is an expression deficit in and of itself.

Maybe I am a little bit practical in the sense that I think there are important times for philosophical discussion, and then there are times for understanding what the consequences of that philosophical discussion are for people who are not as privileged as some of us, and that is something that has to be taken into account as well.

Ms. Mahoney: Some groups are supportive of repealing the law. I think there is a lot of self-interest involved. I argued this in my written submission. The media do not want to be troubled by limitations on what they say editorially, cartoon-wise or any other way. Similarly, some religious people do not want to be hampered in any way, so they see it as a self-interested thing.

I think it is also a problem of rhetoric. As Ms. Kolmes mentioned, the rhetoric around this is not necessarily accurate at all. Saying that hate speech is protecting people from being offended, well, it is much more than that, but that sounds good; it is a media clip that can be used to dismiss those who have a different view.

The notion of equality and speech are abstract notions. They have to be made real for people, once you start talking about examples, once you start seeing hate speech play out, and some of the horrific playing out of it in Rwanda. One of your colleagues in the Senate was right there and he speaks so eloquently of the effects of hate speech on a mass scale. We also see it, as I mentioned earlier, in these teen suicides. Once people are exposed to the reality of hate speech and the harm it can do, it is not hard to convince them. However, when the rhetoric is abstract and it is all about "Free speech is essential in a democratic society; no one will limit my speech; I will say whatever I want to say," that kind of rhetoric does not lend itself to an understanding of the issue.

Of course, I am an educator. That is all I have ever done. I firmly believe in the importance of education, the important educative message the Senate could send Canadians by rejecting this bill and the discussion it would restart, or start, in places where it has not been properly discussed. I think that is necessary. We are going down a dangerous path. The U.S. is now being described as a haven for hate-mongerers. That is because there are no laws there to limit their activities. These Internet sites are grouping in the United States and there is very little that other countries can do about it. They have been chastised by countries all around the world for not following the Canadian lead, actually.

After Taylor, many countries of the world adopted the same analysis the Supreme Court of Canada did in Taylor, an equality harms-based analysis. The U.S. has not done so. Do we want to go that route? I do not think so. I think it is the same kind of approach as with guns, actually. Once you get a constitutional, absolutist protection solidly lodged in people's minds, they can do whatever they want, under the aegis of, in that example, having guns. You can have a tank in your backyard in the U.S. because there is a constitutional right to a gun. It has never been understood in any kind of a balanced way.

We have a chance here to promote and develop the law further in a balanced and nuanced fashion, where there is a calculus between those with the power of the microphone and those who do not have that power, to figure out how we can maximize freedom of speech and equality for everyone. The human rights legislation is not perfect, but it goes some distance to helping us achieve that goal. To undermine it now would be, in my opinion — I have said it before and I will say it again — a retrograde step.

Ms. Kolmes: I have two points to add as to why groups are taking positions privileging the expression. One is that I think it is a failure, a lack of mindfulness about harm. Second, I think it is lack of recognition that we limit expression in a variety of areas when harm could result.

An example is tobacco advertising. There is a limitation on misleading advertising and advertising to young people. In that area, we do not, as a community or as the legislative embodiment of our community values, say we will leave it to the marketplace of ideas. We say, "No, the potential of harm to young people is serious enough that we must restrict that expression." We do that, so why not analogously take measures against hate speech?

Senator Baker: This bill was introduced over a year ago in the House of Commons. The witnesses, I am sure, realize that some of the people and organizations who commented on this and some of the academics who support this — very few, but there are some who do — referenced cases that had not been decided. One of them was Whatcott. It had not yet been decided when this bill was introduced. Other cases were not decided. We had Mr. Mosley, the other day, say that, as far as the constitutionality of this section is concerned, it is okay, but the penalty provisions should not apply. Remember that case? That is only recently. Here we have these people who demand taking Hate messages out of this law and who say, "We have not really heard from the Supreme Court of Canada yet on Whatcott and we have not heard from the Federal Court on the other case."

Could it be that since this was introduced over a year ago, perhaps now some of these people might take a different view of it, after what the Supreme Court of Canada has laid down since that time?

Ms. Bailey: I suppose anything is possible.

Senator Baker: You have already pointed out — and correctly so that Taylor dealt with this section. What did the Supreme Court of Canada do in Whatcott the other day? They solidified it and they made reference to this section. They made reference to the law. They solidified the fact that you must have those two branches — the Criminal Code of Canada and the Human Rights Act. That is clear in the judgment. That was not clear when this bill was introduced. Perhaps there are people who would have supported this bill a year and a half ago but might not support it today. Is that possible?

Ms. Kolmes: It hopefully would be possible, but whether or not the groups take their positions, we certainly know now, thanks to the judgment from the Supreme Court in Whatcott, in very clear and inspiring terms, how harmful hate speech is and how justifiable and reasonable, in a democratic society, it is for legislators to have taken measures to prevent hate speech.

The Chair: Listening to all of you, I was wondering: To what extent does hate crime legislation prevent the spread of harmful ideas? To what extent should the intention to incite hatred be a necessary component of hate crime legislation?

Ms. Bailey: I will go back to a couple of points concerning the extent to which it controls. It controls as well as laws do. Laws guide behaviour. They try to regulate behaviour. They try to encourage people to make the right decisions if people actually pay any attention to them, but, at the end of the day, will having a legislative provision stamp out hate propaganda? No, no more than a Criminal Code provision about murder is going to stop murder. I do not think that that is a realistic standard for legislators to set for themselves: "I am not going to have a law unless it is proven 100 per cent efficacious."

The other thing that I think is important in the Internet context is the degree to which private regulation by ISPs is already happening and the degree to which public articulations of where the boundaries are is very important in terms of overall regulation. ISPs do look for guidance from regulatory bodies with respect to online child pornography and with respect to hate propaganda.

I will not say it is 100 per cent effective. No law is, but there are reasons to believe that we would be worse off without it, in terms of efficacy, than we are with it.

The Chair: Professor Mahoney, Professor Bailey, Ms. Kolmes, we want to thank you. We certainly have learned a lot from you, and you have you given us a lot to think about. I know that we contacted you at the very last minute, and all three of you were very gracious in accommodating us. I want to thank you for being here today.

(The committee continued in camera.)