Second reading of Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom)

Honourable senators, in preparation for expressing my opposition and particular criticisms regarding Bill C-304, I have reviewed the debates preceding this point in the legislative process, the arguments of MPs, senators and interest groups bent on passing the bill, and the concerns and the proposed amendments of others aiming at finding some sort of middle ground. My strategy is always to add to and enforce my side of a debate and determine what I most want to challenge: the weakest reasoning, the flimsiest facts. What I discovered is that the field before me is wide open.

Section 13 of the Canadian Human Rights Act plays a crucial role in promoting tolerance and respect among Canadians. The provision makes it a discriminatory practice to communicate via the Internet or other telecommunications device any matter likely to expose a person or persons to hatred or contempt on the basis of race, national ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and a conviction for which a pardon has been granted.

Section 13 is one tool in the toolbox, as the Canadian Bar Association has described it, to combat intolerance. The other hate speech provisions we have in Canada are contained in the Criminal Code of Canada. These tools, both civil and common law provisions, are a necessary complement to one another.

Section 13 imposes a lower standard of proof — a balance of probabilities — than what has to be met under the Criminal Code. However, this remedy of civil law is in no way inferior to our common law provisions. It has been a component of our Human Rights Act for 35 years. That, honourable senators, is considerable experience and considerably important insight and sensitivity.

The anti-hate provisions of the Criminal Code, on the other hand, impose a higher burden of proof — proof beyond a reasonable doubt. In addition, prosecutions cannot be made without the consent of the Attorney General, and the process is generally in the hands of police and prosecutors lacking expertise and adequate experience in pursuing hate speech cases. The Criminal Code is applied only in the most extreme cases, and thus far this government has not initiated a single prosecution.

Our country, by the way, has various international treaty commitments to advance human rights by providing protection from the proliferation of hate speech and the resulting rise of hatred and violence, yet here we have Bill C-304 being rammed through our legislative process.

Thanks to our colleague Senator Nancy Ruth, many of us have also been made aware of a dangerous discrepancy between those groups protected against discrimination under the Canadian Human Rights Act and those groups protected under the Criminal Code. Under the Criminal Code, the prohibited groups include only those distinguished by race, religion or ethnic origin. It says nothing about those additional groups protected under section 13, including those distinguished by age, sex, sexual orientation or disability.

This represents a world of legal difference. As inconceivable as it may sound — that our anti-hate provisions could come to exclude protections for groups like women and homosexuals from the language and violence of hate — that is what we are facing. This will be one of the impacts of the passage of Bill C-304.

It is not as if this is news for those who are pushing for this bill. They have been told. They know.

I cannot think of a more dependable source of comment and guidance on Bill C-304 than the Canadian Bar Association. In an article posted in The Huffington Post last June, in reference to the bill, the association was cited as saying:

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. . .

In April of this year, the Constitutional and Human Rights Section of the CBA’s Equality Committee submitted a report placing section 13 of our Human Rights Act in its historical, social and legal context. At the outset of this report is a citation from Supreme Court Justice Rosalie Abella, speaking in 2009 on “Human Rights and History’s Judgment.” She said:

We were supposed to have learned three indelible lessons from the concentration camps of Europe. First, indifference is injustice’s incubator. Second, it’s not just what you stand for, it’s what you stand up for. And third, we must never forget how the world looks to those who are vulnerable.

Canada and its citizens need laws to prohibit the publication of hateful statements that create the risk of hatred and violence being directed to vulnerable groups. The risk itself is an affront to human dignity.

Based on the substance of section 13 complaints handled by the Canadian Human Rights Commission, the Canadian Bar Association is convinced that hate speech directed at “identifiable religious and other groups is alive and well in Canada.”

In its 2011 study of patterns of prejudice, the League for Human Rights of B’nai Brith Canada found a clear and ongoing trend that “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.”

With the continuing emergence of the Internet and other telecommunications options, we need section 13 more than ever. Almost anyone can find whatever information they are looking for on the Internet without any personal risk. The Internet also enables us to easily and affordably reach as vast or as specific an audience as desired. These are among the main reasons why the Internet is the preferred medium of hate promoters.

We have reams of disturbing statistics at our fingertips; comments and advice from experts on anti-hate provisions and our civil and criminal laws. If we have the stomach, we can also refer too easily to the content of sites such as those maintained by White supremacist groups, misogynists and homophobes.

Our colleague Senator Doug Finley has spoken in favour of this back-door private member’s bill. I am wondering how he or anyone can be aware of the plight of those groups who are the targets of such vile language and expressions of hatred and still stand in the chamber, as the senator did last June, and say:

If you find an idea stupid, it is your right to ignore it. If you find a joke offensive, it is your right to disregard it. Even statements one might find intolerable or heinously out of line with reality deserve . . . to be heard and ignored.

Stupid? A joke? Out of line? I think that is the way I would describe some of the statements we have endured in support of Bill C-304. However, these terms are, to anyone with a shred of moral fibre, inapplicable to what one will find on some of these sites. It is like calling a mountain a molehill.

With the passage of Bill C-304, we are failing in lessons of history. Regrettably, Justice Abella’s lament is too true. She said:

We still have not learned the most important lesson of all: to try to prevent the abuses in the first place.

How did we get to this point? What is behind this drive to repeal section 13, regardless of the chasm that it creates in our human rights landscape?

The arguments of those aiming to repeal section 13 centre not on the threat of hate speech or ways to combat it, but rather on the primacy of freedom of speech in a democracy.

Honourable senators, with over 30 years as a reporter covering events throughout the world — including undemocratic countries where citizens are killed for expressing their thoughts — I am profoundly grateful to live in a country where freedom of speech is guaranteed by law. I do not, however, recognize the concept of freedom of speech that is being upheld by supporters of Bill C-304. The meaning infused in the references to this freedom is contorted.

As the Huffington Post reported last spring, it is not just the parliamentarians supporting this bill who regard its passage as a victory for freedom of speech, “it’s being cheered most vocally by another group: White supremacists.” StormFront, which touts the logo “white pride worldwide,” is one site where one will find comments by individuals who are thrilled by what Bill C-304 could mean for this country.

Honourable senators, if I could only cite a passage or two of the materials one can find on hate sites today and provide real examples of what some supporters of Bill C-304 say should be protected in the name of freedom of speech, I would like to do that, but my conscience will not allow me to even paraphrase this garbage.

In the words of M.P. Brian Storseth, the sponsor of Bill C-304 at second reading, his bill:

. . . would help to protect and enhance our most fundamental freedom, and that is the freedom of expression and speech. As George Washington said, “if the freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”

By the way, I was not that impressed, when Senator Cowan had his inquiry dealing with the thirtieth anniversary of the Canadian Charter of Rights and Freedoms — and, like millions of Canadians, I do regard the Charter as a reflection of our national identity — that this government chose not to pay much attention to this constitutional milestone. For the Charter’s anniversary, the most this government mustered was a nondescript release from the Minister of Canadian Heritage and Official Languages.

It is ironic, not to mention hypocritical, that the majority of parliamentarians pushing for the passage of this bill in the name of the right to the freedom of expression are from the same party that has been disrespectful of the very instrument of law that protects this and other fundamental freedoms and rights. What is worse is that the proponents of this bill have built their arguments on a distorted concept of freedom of expression. Though they talk about this freedom as though it is an absolute, it is not. It comes with responsibilities.

In 1965, more than 15 years before the patriation of the Canadian Charter of Rights and Freedoms, the Special Committee on Hate Propaganda reflected on what should be the appropriate limits on freedom of expression, which include, to-the-point, relevant guidance on the broadcasting of hate speech. The committee said at that time:

Canadians who are members of any identifiable group in Canada are entitled to carry on their lives as Canadians without being victimized by the deliberate, vicious promotion of hatred against them. In a democratic society, freedom of speech does not mean the right to vilify. The number of organizations involved and the numbers of persons hurt is no test of the issue: the arithmetic of a free society will not be satisfied with over-simplified statistics demonstrating that few are casting stones and not many are receiving hurts. What matters is that the incipient malevolence and violence, as of which are inherent in “hate” activity, deserves national attention.

This was said in 1965.

Honourable senators, 25 years later, in Canadian Human Rights Commission v. Taylor, the Supreme Court of Canada referred to the fundamental truth of the committee’s report in examining a charge that section 13 was an unconstitutional infringement of the right to free expression. Balancing freedom of expression against countervailing rights set out in the Charter, the court found that the section was a reasonable limit and acknowledged the important objective of section 13. It said:

It can thus be concluded that messages of hate propaganda undermine the dignity and self-worth of target group members and, more generally, contribute to disharmonious relations among the various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multi-cultural society which is committed to the idea of equality.

For all the MPs and senators who opposed and proposed amendments to Bill C-304, and for all the testimony from groups and individuals cautioning us about the impact of this bill, if left unchanged, no one has disagreed that freedom of speech is a cornerstone of a democracy. Conservative M.P. Brian Storseth has stated that it is the bedrock that all other freedoms are built upon. Well, I wholeheartedly agree, but I disagree with the concept that Mr. Storseth and other proponents of Bill C-304 have been passing off as freedom of speech. They have been opportunistic in their definition of this right, polarizing debate and obstructing productive discussion about what is really at stake in relation to this bill.

As University of Windsor law professor Richard Moon stated in his 2008 report to the Canadian Human Rights Commission:

The goal of ending prejudice in the community cannot be accomplished through censorship. The purpose of hate speech law must be narrowly defined as the protection of the members of an identifiable group from the risk of violence that results from expression that threatens, abdicates or justifies violence.

Honourable senators, this could well have been a positive starting point for discussions about how best to incorporate assurances for freedom of speech within a federal legal provision for promoting tolerance and respect among Canadians. However, from the beginning, this process has never been about achieving balance or resolution. Section 13 is far from flexible, far from perfect, but it is fixable.

Throughout the process, we have heard some excellent proposals for amendments to both section 13 and to Bill C-304, and they have all fallen on deaf ears.

I am not saying that the promoters of this bill have a secret agenda. It is no secret at all. In fact, it has been blatantly obvious: Get this thing passed at all costs.

Honourable senators, just look at some of the groups and organizations supporting this bill. Take Ezra Levant. To him, respect for human differences and protection from discrimination is discriminatory, if not in the way, of what he wants to spew freely over the Internet and other media. Levant is a rabid critic of the Canadian Human Rights Commission, a master at distorting facts and infiltrating mainstream discourse. Whatever gains he realizes from the passage of this bill, they are most certainly in cold contrast to the loss and hardship endured by those groups protected under section 13 of the Canadian Human Rights Act. He has his tactics and so, too, do those who have so successfully carried Bill C-304 to these final stages of the legislative process — drafting a bill that was not even part of the Conservatives’ election campaign platform, but I understand it was part of a policy platform in June of this year, and then presenting it as a private member’s bill, disarming us with their utter disregard for lessons learned and wisdom reached.

In addressing the repeal of section 13, Mr. Irwin Cotler — Professor Cotler — stated:

The arguments of some in this place in support of a repeal, . . . have made a mockery of our constitutional law, arguments regarding free speech and, indeed, the related jurisprudence, in particular Supreme Court jurisprudence.

How do we address assaultive hate speech in Canada? Can we afford to lose section 13 of the Canadian Human Rights Act? This is the question — the issue — that has been sorely lacking in debates over the passage of Bill C-304. We have been drawn into debates, that were not really debates, over words and concepts that were never intended to mean what is commonly and appropriately understood. Enough.

We have a duty to reflect on what it is to be subjected to hatred on the basis of whatever we are. We must resist the heartless quips of those who equate these consequences with hurt feelings, easily ignored and unworthy of our attention. Cowardice is their way and it is their right. They can go for it; but for those of us who really want to know what can happen in the absence of protection, there is a wealth of tragic insight to draw from.

In his judgment upholding the constitutionality of section 13, former Chief Justice Brian Dickson thoughtfully drew from preceding wisdom:

The Cohen Committee —

— also known as the Special Committee on Hate Propaganda in Canada —

— noted that individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including a loss of self-esteem, feelings of anger and outrage and strong pressure to renounce cultural differences that mark them as distinct. This intensely painful reaction undoubtedly detracts from an individual’s ability to, in the words of s. 2 of the Act, “make for himself or herself the life that he or she is able and wishes to have.”

The consequences of discriminatory hatred are as personal as they are societal. They scar; they enrage; they damage individuals. They undermine the trust and confidence of citizens in one another and their country. They create factions and spark violence. They reduce us all.

Honourable senators, if any of what I have said today resonates with you, speak up now and consider yourself lucky that you have been unswayed by what we are being told repeatedly are the merits of Bill C-304. I am gravely concerned about this bill for several reasons, beginning with its impact on the capacity of the Canadian Human Rights Commission to protect human rights and educate the Canadian public. Maintaining that the contributions of human rights bodies like the commission cannot be overstated, the Canadian Bar Association recently stated:

Over the years, human rights commissions have remained the vanguard of eliminating discrimination based on race, religion, gender, disability, sexual orientation, and other grounds, and advancing equality.

Honourable senators, today it is my duty, along with others, to stand up for the most vulnerable people in our society, but I am comfortable nonetheless to not be among those who will soon likely be patting themselves on the back and congratulating one another for getting the job done. Eventually, honourable senators, there will come a time when complicity in the passage of this bill will be recognized for what it really is: a source of national regret and shame.