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37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, May 13, 2003

0905

The Chair (Hon. Andy Scott (Fredericton, Lib.))

Mr. Gerald Chipeur (Lawyer, As Individual)

0910

The Chair

Ms. Genevieve Chiu (Member, Egale Canada)

0915

0920

Mr. John Fisher (Director of Advocacy, Egale Canada)

The Chair

Mr. Alex Neve (Secretary General, English Speaking Branch, Amnesty International (Canada))

0925

Mr. Michael Battista (Member, Amnesty International (Canada))

0930

The Chair

Mr. Bruce Clemenger (Director, National Affairs, The Evangelical Fellowship of Canada)

0935

0940

The Chair

Mr. Vic Toews (Provencher, Canadian Alliance)

Mr. Gerald Chipeur

0945

Mr. Vic Toews

The Chair

Mr. Michael Battista

The Chair

Mr. John Fisher

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

0950

Mr. Gerald Chipeur

Mr. Richard Marceau

Mr. Gerald Chipeur

0955

Mr. Richard Marceau

Mr. Bruce Clemenger

The Chair

1000

Mr. Svend Robinson (Burnaby—Douglas, NDP)

Mr. Gerald Chipeur

Mr. Svend Robinson

Mr. Gerald Chipeur

Mr. Svend Robinson

Mr. Gerald Chipeur

Mr. Svend Robinson

1005

Mr. Bruce Clemenger

Mr. Svend Robinson

Mr. Bruce Clemenger

Mr. Svend Robinson

Mr. Bruce Clemenger

Mr. Svend Robinson

Mr. Bruce Clemenger

Mr. Svend Robinson

Mr. Bruce Clemenger

Mr. Svend Robinson

Mr. Bruce Clemenger

Mr. Svend Robinson

Mr. Bruce Clemenger

Mr. Svend Robinson

Mr. Bruce Clemenger

Mr. Svend Robinson

The Chair

Mr. Pat O'Brien (London—Fanshawe, Lib.)

1010

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

Mr. Pat O'Brien

Mr. Gerald Chipeur

1015

Mr. Pat O'Brien

Mr. Gerald Chipeur

Mr. Pat O'Brien

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

1020

Mr. Gerald Chipeur

The Chair

Ms. Hedy Fry (Vancouver Centre, Lib.)

1025

The Chair

Mr. Gerald Chipeur

The Chair

Mr. Bruce Clemenger

Mr. Svend Robinson

1030

Mr. Bruce Clemenger

The Chair

Mr. Bruce Clemenger

Ms. Hedy Fry

Mr. Bruce Clemenger

The Chair

Mr. John Fisher

The Chair

Mr. Richard Marceau

Mr. John Fisher

Mr. Richard Marceau

1035

Mr. John Fisher

Mr. Richard Marceau

The Chair

Mr. John McKay (Scarborough East, Lib.)

Mr. Gerald Chipeur

1040

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

The Chair

Mr. Pat O'Brien

1045

Mr. Bruce Clemenger

Mr. Pat O'Brien

Mr. Bruce Clemenger

The Chair

Ms. Adèle Auxier (Research Assistant, The Evangelical Fellowship of Canada)

The Chair

Mr. John Fisher

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

1050

The Chair

Mr. John Fisher

The Chair

Mr. Michael Battista

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

1055

Mr. Gerald Chipeur

The Chair

Mr. Bruce Clemenger

The Chair

Mr. Alex Neve

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 045

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, May 13, 2003

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call to order the 45th meeting of the Standing Committee on Justice and Human Rights.

Today we are hearing witnesses on Bill C-250, an act to amend the Criminal Code with regard to hate propaganda. We have as witnesses to assist us in this exercise Gerald Chipeur, a lawyer, appearing as an individual; Egale Canada, with John Fisher and Genevieve Chiu; Amnesty International, with Alex Neve and Michael Battista; and from the Evangelical Fellowship of Canada, Bruce Clemenger and Adèle Auxier.

Welcome all. You won't be offended if I say some of your faces are familiar.

You understand the process. Each group or individual has 10 minutes to make a presentation, and then we'll go to the committee for discussion.

So without further adieu, I'm going to go in the order they are presented here, first to Gerald Chipeur.

Mr. Gerald Chipeur (Lawyer, As Individual): Thank you very much, Mr. Chair.

I have been invited to speak to this committee on the subject of Bill C-250, and my comments are provided as those of a lawyer who practises in the area of constitutional law.

However, I must confess my political bias: I'm a confirmed libertarian. I do not believe there are many problems amenable to solution by government. Government usually moves too slowly to actually achieve its objective of making life better for its citizens.

However, the greater concern is that once it starts to move, it cannot be stopped or nuance legislation to account for exceptions. This means that the innocent are often hurt when government tries to go after the guilty, and that's my main concern with respect to the amendment you have before you. I'm afraid that section 318 of the Criminal Code could become a living example of my concerns.

Let me be clear. I oppose the very existence of sections 318 and 319 of the Criminal Code. Those sections should not be expanded and they should not be amended. Instead, they should be repealed. Section 318 includes language that is so broad as to be susceptible of abuse by government. Words like “conditions of life” and “physical destruction” could be interpreted in ways not contemplated by you as legislators.

Furthermore, it is an offence under section 318 to advocate or to promote genocide. There's no adjective requiring intent here. I trust that the standard requirement of mens rea will be enough to address the issue, but it would be better to repeal section 318 and avoid the possibility of injustice.

I do not say this because I favour discrimination. That's not Canada's tradition. In fact, it has for many years been Canada's great honour to be a safe harbour for those facing discrimination.

The history of my family is a case in point. My heritage includes Polish Roman Catholics who in 1858 fled persecution in Prussia by those of a different faith. My ancestors were not allowed to keep either their faith or their language in their country, so they came to Canada and settled in Wilno, just a few hours north of here, at the end of the railway line in 1858. In fact, my great-great-great-grandfather was the first person buried in the little cemetery up there in Wilno.

I have tried in my practice to maintain the tradition of advancing religious liberty and have done so on a number of occasions in our Supreme Court.

It is my suggestion to this committee that section 318 does not advance the cause of non-discrimination. Instead, it provides the occasion for discrimination. As a person from a family whose faith and ethnic origin were attacked in the past, I do not want the kind of protection offered by section 318.

There are three reasons I say this. The first reason is the potential for abuse. Individuals who commit crimes deserve society's condemnation. They deserve it for their actions and they deserve the penalty that is prescribed. However, when society is allowed to seek additional penalties because of the views of the criminal about colour, race, religion, ethnic origin, or sexual orientation, the lawmakers are, in my view, in fact fanning the flames of tribalism and anger that human rights statutes were created to manage and reduce in the first place.

The second reason is just as important. Section 318 insults the victim's humanity. Crime should be punished because of its impact upon the victim, not because of society's desire to socially engineer or reform the criminal. It is the victim's status as a human being, not the victim's membership in a class, that should be protected by the Criminal Code.

Finally and no less importantly, this initiative is an insult to those who are the victims of multiple murderers and other serious criminals. An amendment to the Criminal Code that would make it possible for courts to increase the sentences for multiple murderers and rapists is not yet law. This committee and the House of Commons passed an amendment to that end several years ago. Unfortunately, the Criminal Code amendment that would have allowed increased penalties for multiple murderers and rapists was not passed by the Senate. Until that important amendment that condemns acts of multiple murder and rape is appropriately dealt with, minor tinkering such as the amendment of section 318 should not be contemplated by this committee.

Let me conclude with reference to a very important decision of the U.S. Supreme Court that just came out. It's the cross-burning case, a case called Virginia v. Black, and the decision was released in April of this year. In that case Justice O'Connor addressed the question of whether cross burning could be banned as prima facie evidence of intent to intimidate. She struck down the impugned legislation and said no, in that case it could not, and these were her words:

The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation, or it may mean only that the person is engaged in core political speech. The prima facie evidence provision blurs the line between these meanings, ignoring all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate.

The conclusion is this: actions intended to intimidate or otherwise harm others may be proscribed in a free and democratic society because of the effect of those actions on others. However, it is important to carefully craft legislation to specifically and directly limit the law to just those kinds of actions.

Under paragraph 2(b) of our Canadian Charter of Rights and Freedoms, political speech ought not to be restricted unless that speech is intended to have an intimidating impact on others. This constitutional imperative is applicable even when the speech is hateful. In other words, it's my submission that hateful speech in and of itself should not be the subject of the Criminal Code. Only hateful speech that is intended to intimidate, that is intended to have a negative impact on the victim, is something that should be the focus of this committee's attention.

In his essay On Liberty, J.S. Mill outlined why it is important for society to grant liberty of thought and belief, even bad or immoral beliefs. He said:

If society lets any considerable number of its members grow up mere children, incapable of being acted on by rational consideration of distant motives, society has itself to blame for the consequences.

It was the conclusion of J.S. Mill that:

if he refrains from molesting others in what concerns them, and merely acts according to his own inclination and judgment in things which concern himself, the same reasons which show that opinion should be free, prove also that he should be allowed, without molestation, to carry his opinions into practice at his own cost.

He raised alarm at the effort of some in public discourse to stigmatize those who hold contrary opinions as bad or immoral men.

Section 318 does not respect the guarantee of freedom of speech protected in paragraph 2(b) of the charter because section 318 could be applied to speech that is meant not to intimidate but merely to express a political opinion. In order to ensure that justice is done in Canada, this committee should not amend subsection 318(4) but instead should review sections 318 and 319 of the Criminal Code with a view to repeal.

Thank you very much.

¿ (0910)

The Chair: Thank you very much.

And now we'll go to John Fisher and Genevieve Chiu.

Ms. Genevieve Chiu (Member, Egale Canada): Good morning, ladies and gentlemen.

I understand that you may not have our brief yet, so I'd like to take this opportunity to highlight some of the issues we've put forward regarding Bill C-250 and the current hate propaganda provisions.

First and foremost, the current hate propaganda and hate crime provisions are inconsistent and under-inclusive. On the one hand you have section 718.2, which provides harsher sanctions for crimes motivated by hate based on sexual orientation, yet on the other hand you have the related hate provisions of sections 318 and 319, which do not include sexual orientation. At the very least it seems illogical and inconsistent for Parliament to recognize that gays, lesbians, and bisexuals would be potential targets and victims of hate crimes yet not make the connection that the same group and the same people would also be potential victims and targets of the equally harmful hate propaganda.

Furthermore, subsection 318(4) must be amended to include “sexual orientation” by reason of under-inclusiveness. The current subsection protects on some grounds yet omits sexual orientation, which is an analogous ground included in section 15 of the charter, thus constituting a charter violation. If Bill C-250 is not enacted to amend the provisions to include sexual orientation, Canadian gays, lesbians, and bisexuals will continue to be treated with discrimination and to have unequal treatment before this law.

The second point I'd like to address is the harm of hate propaganda. The harm is significant with hate propaganda. It extends beyond the victim, who has psychological harm, and there are other ramifications that cannot be foreseen; the harm also extends to the entire target group of the hate propaganda. It reaffirms the fears that this group will not be accepted or tolerated in a society, and it reaffirms the discrimination and prejudice they already suffer. By that effect, that harm extends to society as a whole.

In R. v. Keegstra the Supreme Court enunciated this quite well regarding the harm of hate propaganda, that these consequences would “bear heavily in a nation that prides itself on tolerance and thefostering of human dignity through, among other things, respect for the many racial, religious and cultural groups in our society.”

The criminal law in our system is still the central means of defining appropriate standards of conduct in our society. Under our current criminal law, however, only physical acts of hatred against gays, lesbians, and bisexuals will qualify as illegal manifestations of hatred. But the fact is that verbal attacks of hatred are regular occurrences, even extending to the advocating of killing of gays, lesbians, and bisexuals. These acts are no less harmful to the individual, to the target group, or to society as a whole if they are still legal. Ultimately, the propagation of such hatred and harm creates a hate-filled social climate, which prevents the proper functioning of a free and democratic society.

At this stage I'd like to address some of the current framework of our hate propaganda provisions in order to answer some of the fears that freedom of expression and freedom of religion may be at risk.

There are safeguards and limits within the current legislation that affirm the validity of freedom of expression, religion, and equality. The three offences created by sections 318 and 319 are as follows. You first have the advocating or promoting of genocide, which is prohibited. This section only covers the most extreme expressions of hatred, amounting to deliberately advocating the death of a segment of the Canadian population. Again, here the Attorney General's permission is required before a case can proceed.

Second, you have the public incitement of hatred, which is prohibited. This section is not meant to apply to innocent communications, rather it only applies to the active and deliberate incitement of hatred in near-riot situations in public.

Finally, you have the prohibition of wilful promotion of hatred. Once again, this section only applies to extreme manifestations of hatred such that the content of the message is so intense and extreme in its offensiveness that it can be clearly identified as vilification, detestation, ill will, or malevolence against another and imply that the group targeted should be despised, scorned, denied respect, or subjected to ill treatment.

Furthermore, this section has a very high mens rea standard, the requirement of the mental element that the act be wilful and be communicated in public. Again, the Attorney General's permission is required before a case can proceed.

Finally, I would like to highlight that there are defences that are connected to this section that further safeguard and limit the section. For example, the statement could be proven on a balance of probabilities to be true. It would not be covered if it was communicated in a private conversation, if it was a religious opinion expressed in good faith, or if it was a subject of public interest, raised in good faith for the public benefit or for the removal of hatred.

¿ (0915)

Viewing these sections holistically, we clearly see that in the current amendment before us and in the current hate propaganda provisions, the purpose is not and has never been to restrict the civil liberties of Canadians. On the contrary, the purpose of these laws and this amendment is to affirm the importance of all civil liberties, including freedom of expression and religion and equality, by recognizing the difference between legitimate speech and hate-mongering, which harms all liberties of all Canadians.

I'd like to highlight some of the recommendations Egale has put forward: first, to establish a national strategy against hate propaganda and hate crimes to facilitate better reporting in order to develop effective remedies; second, to launch a national awareness campaign, because education and prevention are key weapons against ignorance and intolerance; and finally, to establish a national advisory board on hate to support the above-mentioned initiatives from the national level to the local level. And of course we support the enactment of this bill to amend the provisions to include sexual orientation.

¿ (0920)

Mr. John Fisher (Director of Advocacy, Egale Canada): It seems to us that whatever you choose to do here, you have to be consistent. Either you support the principle of hate propaganda legislation or you don't. If you don't support the principle of hate propaganda legislation, then the corollary of that is that we accept living in a society where people can promote hatred, can promote the death of whole groups of people based upon their religion, their race, or their sexual orientation.

If somebody promotes my death as an individual, then there are criminal sanctions against that. If they promote the death of a whole group of people, only the hate propaganda provisions of the Criminal Code will protect that group of people from that harm.

Conversely, if you do support the principle of hate propaganda legislation, if we recognize that we want to live in a society where we respect people's personal integrity and our rights not to be subject to this kind of hate propaganda, then again, you have to be consistent.

What you can't do is what the law currently says, which is to maintain protection for some groups but not others. That sends an even worse message, that Parliament believes that it's inappropriate to promote hatred against people on the basis of their race or their religion but that people persecuted on the grounds of their sexual orientation are not sufficiently worthy of protection but are fair game for statements of hate propaganda.

At least Mr. Chipeur is consistent in saying, eliminate all the grounds, but what you can't do is leave the law as it currently stands.

Genevieve has already spelled out why we disagree with Mr. Chipeur when he says there is insufficient harm caused by hate propaganda and that you should eliminate all the grounds. We're here today to support having a more inclusive list of grounds.

Some members of the committee last week said, show us the harm. I'd just like to give a few examples from our brief and my work with Egale.

I've just about heard and seen it all by now. I've certainly been subject to cases where I've been told that homosexuality is a pestilence to be eradicated. We've received threatening phone calls from a group calling itself the “Army of God”, and there is an Internet game children can unload called “Shoot the Fags!” These are clear messages that not only are lesbians and gays insufficiently worthy of equal respect, they should actually be killed in our society and this should be tolerated. Obviously, those are substantial harms we believe Parliament has a serious interest in addressing.

The other point is, given that people are currently protected on grounds like race and religion, what does it mean for a lesbian of colour, for example, who faces hatred? Is she to separate out her identity based upon whether she faces hatred on her race, on her gender, or on her sexual orientation? In reality, hatred is interconnected and often our identities cannot be separated out. It's only appropriate that a law be comprehensive and protect people based upon all of these grounds.

The social consequences of hate speech cannot of course be underestimated. The Supreme Court and Genevieve have summarized some of those, but I just want to underline the fact that, as Inspector Jones pointed out last week, we do live in a society where gay bashing is a common problem. The link between hate speech and hate violence is clear and easy to establish.

We also live in a society where lesbians, gays, bisexuals, and transgender people face increased levels of suicide. I have with me suicide notes and evidence in newspaper reports from young people who have taken their own lives because of the name-calling, the harassment, and the verbal abuse they've been subject to. They leave messages saying please, don't let my death be in vain; please make sure this doesn't happen to other people. That harm is also easy to establish.

In terms of what we're asking of this committee, first and foremost yes, support this bill. Let it go to the House of Commons; don't let it die in committee. This deserves debate, it deserves consideration, and it deserves passage.

Second, as Genevieve has said, we recognize this bill won't fix all the problems all at once, but there's no excuse for delay; we have a problem here that needs to be fixed.

We'd also call upon you to recommend to the government the exploration of more comprehensive strategies to combat hate propaganda, hate speech, and hate crimes, including expanding the list of grounds to include other groups such as transgender people on the basis of their disability, sex, and gender identity.

Thank you very much.

The Chair: Thank you very much.

Now we'll go to Amnesty International, with Alex Neve and Michael Battista.

[Translation]

Mr. Alex Neve (Secretary General, English Speaking Branch, Amnesty International (Canada)): Thank you, Mr. Chairman. Good morning, committee members. We are very pleased to be here this morning to share our position on Bill C-250.

By name is Alex Neve and I am Secretary General of Amnesty International (Canada), English Section. With me is Michael Battista of Toronto, an active member of Amnesty International and also a lawyer.

[English]

As many of you are no doubt aware, Amnesty International is a worldwide human rights organization with over 1.8 million members spread across every continent. We count 65,000 Canadians amongst our active membership. We work actively to promote global adherence to the world's most important international human rights documents, the Universal Declaration of Human Rights and the many human rights treaties that governments have since developed.

Central to that system is the principle that all persons should be treated equally. The universal declaration says it simply and eloquently in its opening words, which I would say in some respects are the very linchpin of the global human rights system: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.

That key principle has stood at the heart of Amnesty International's four decades of human rights work. But sadly, I think we all know we live in a world where human rights, including some of the most basic and fundamental of all rights, are far from equally enjoyed by all members of the human family. We have for over forty years documented the horrifying and disturbing ways in which those rights, the right to life, the right to be free from torture, the right to free expression, and the right not to be arbitrarily detained, are denied, undermined, and brutally violated for no other reason than a person's identity, namely their race, their gender, their political beliefs, their religious faith, or their sexual identity.

We are here this morning because we think Bill C-250 goes far in addressing the protection needs of gay and lesbian Canadians by ensuring that their right to be protected in the face of violence and persecution is adequately protected. My colleague is going to address the ways we think this legislation will make an important difference.

I'd like to conclude my comments, though, by urging this committee in your deliberations not only to take a national view to what you're doing with this legislation but to take a global view. We can certainly say to you that in our human rights work we know that around the world gays and lesbians are brutally subjected to human rights abuses. They are killed, they are tortured, they are raped, and they are attacked in countries where there are very few legal provisions providing any form of protection.

Bill C-250 is an important step in Canada doing what it needs to do to provide protection here at home, but I would urge you to live up to Canada's long-standing responsibility to assert global leadership when it comes to human rights issues and to set a stellar example other nations can then be pressed to follow.

Thank you.

¿ (0925)

Mr. Michael Battista (Member, Amnesty International (Canada)): First, I'll just say a couple of words about the nature of the harm or the abuse that's targeted by this bill, perhaps to add an international dimension to Genevieve's comments.

This bill speaks to the incitement or promotion of hatred based on sexual orientation and seeks to end that form of behaviour or abuse. This is entirely consistent with international standards regarding torture and ill-treatment, and in our brief, on page 3 in footnote 4, we make reference to the Convention against Torture and the definition of torture and ill-treatment contained in that treaty. Many people conceive of torture or ill-treatment as only having a physical dimension, but in fact that's not true. If you read the definition of “torture” in the Convention against Torture, you'll see that mental abuse also constitutes torture where it's severe enough and where it's based on discrimination of any kind.

So you can see how this bill is consistent with stopping that form of abuse. Obviously, the promotion of or incitement to hatred can cause severe mental anguish and suffering. Obviously, when it's based on someone's sexual orientation, it's motivated by discrimination, so it's very much captured by this international definition, by the international standards prohibiting torture and ill-treatment.

I think the other relevant aspect of international law here has to do with Canada's state responsibilities under international law. Traditionally, under international law the behaviour of private citizens was not regulated, it was not prohibited as a state responsibility, but international law has evolved to the point of recognizing state responsibility where states have not been diligent in protecting the rights of its citizens. The international Convention against Torture speaks about the acquiescence of states in the abuse that's perpetrated by private citizens.

State responsibility can be established where the state has not been diligent, and we've established internationally this standard of due diligence, which says that states have to pursue all means at their disposal to stop these kinds of abuses. Bill C-250 is consistent with Canada's obligations under the due diligence standard.

It would not be consistent to recognize that these kinds of abuses happen in Canada, the kinds of abuses that are described and documented in the Egale brief; it would not be consistent to read about those abuses, recognize that those abuses can occur, and not take the kind of targeted, directed action Bill C-250 provides in order to address those abuses.

The other important aspect of this bill is that it does much to eradicate the climate in which physical abuse can occur. In Amnesty International's experience, the distance from a climate that promotes hatred to actual physical abuse, to the physical manifestation of that hatred, is a very short path. So we see Bill C-250 as going very far in eliminating that climate of abuse.

In fact, the quote we've put on the cover page of our brief is a quote from a survivor of a nail-bombing attack on a gay pub in London, England, that occurred in 1999. Mr. Reid makes the point that in fact there is a connection between hatred and the culmination or the physical manifestation of hatred as evidenced by that attack. Mr. Reid encourages all to challenge racism and homophobia at every available opportunity.

I think in this bill you have such an opportunity, and we would encourage you to give your full support to this bill.

Thank you.

¿ (0930)

The Chair: Thank you very much.

We'll go to Bruce Clemenger and Adèle Auxier of the Evangelical Fellowship of Canada.

Mr. Bruce Clemenger (Director, National Affairs, The Evangelical Fellowship of Canada): Thank you, Mr. Chair.

The Evangelical Fellowship of Canada is a national association of evangelical Christians. Our affiliates include 36 denominations and over a hundred religious organizations. It also includes organizations that distribute Bibles.

The E of C does not condone, nor do we support, the promotion of hatred or acts of violence toward any person, nor do we condone speech that incites people to violent acts. We affirm the dignity of all persons. We believe that all people are created in the image of God and are objects of His love. We are at the same time deeply concerned about the possible consequences for legitimate expression of religious belief and opinion of the inclusion of sexual orientation in section 318.

In their submission, which I don't think you've received yet, the Christian Legal Fellowship examines the history of the reasons the original groups were included in section 318. They note that colour, race, and ethnic origin are characteristics that are both visible and innate and that religion was not originally contained in the draft legislation but was added to ensure particularly that Jews were protected due to the tragic history of hatred and violence they have experienced.

The question we want to ask is, when the inclusion of sexual orientation is considered, which category is it presumed to parallel: innate categories such as race or the expressed category of religion? Categories like race, colour, and ethnic origin are innate characteristics with no associated activity or conduct. Protection is afforded on the basis of the innate characteristic.

Protection on the grounds of religion is presumed to entail both belief and resulting religious activity such as prayer. Our society's commitment to religious freedom is premised on the belief that the pursuit of truth is a core element of the human condition and thus is deserving of protection. Freedom of religion affirms the ability of persons to hold their beliefs and to change their beliefs as an expression of their dignity. Advocating that one change their religion or asserting that one religion is in error while another is true does not impugn the dignity of the person.

If sexual orientation is understood to be an innate characteristic, then the identity or the disposition is protected but not the activity, because sexual orientations, like religion and sexual practice, could be criticized without questioning the dignity of the person.

The problem is that sexual orientation is often claimed to be both. The behaviour and identity are fused, and the moral criticism of behaviour is interpreted as a moral criticism of the person. This is unlike the other protected grounds listed in section 318.

Religions and cultures often distinguish between the person and the activities they may undertake. This distinction is not unfamiliar to us, because this is the way we treat persons in our society under law. We identify certain activities as wrong while affirming the dignity of all persons. We prosecute those who violate our laws while ensuring their dignity as persons is not questioned. Religious groups make the same distinction.

However, as I indicated above, the term “sexual orientation” as often interpreted does not distinguish between the person and the activity, between the disposition and the practice. This blending of person and activity is illustrated in the reasoning of Justice L'Heureux-Dubé in her dissent in the Trinity Western case. I quote:

I am dismayed that at various points in the history of this case the argument has been made that one can separate condemnation of the “sexual sin” of “homosexual behaviour” from intolerance of those with homosexual or bisexual orientations. This position alleges that one can love the sinner, but condemn the sin.... The status/conduct or identity/practice distinction for homosexuals and bisexuals should be soundly rejected.... This is not to suggest that engaging in homosexual behaviour automatically defines a person as homosexual or bisexual, but rather is meant to challenge the idea that it is possible to condemn a practice so central to the identity of a protected and vulnerable minority without thereby discriminating against its members and affronting their human dignity and personhood.

So can you criticize the practice without criticizing the identity? When practised characteristics are fused and are argued to be inseparable, moral objection to practices are interpreted as moral objections to persons. If sexual orientation is interpreted this way, we ask whether someone could be accused of promoting hatred if they publicly express their moral views on, for example, homosexual activity. Could parts of the Bible be labelled hate literature for condemning certain sexual practices?

Further, will it be argued that a Christian message that gays and lesbians have a choice as to whether to act on their sexual inclinations is a message that advocates genocide? This is not a violent message, it's not intended to induce violence, and I don't want to minimize the notion of advocating genocide. However, some promote therapy that enables a person to change their sexual orientation. Is this considered advocating genocide because you're wiping out a practice?

My point is, within the meaning of section 318 of the Criminal Code, when behaviour and personhood are collapsed within the framework of human rights protections, these sorts of dilemmas are raised.

Now, we approach the consequences of Bill C-250 in light of the Supreme Court ruling of R. v. Keegstra. We refer to this case as an important one because it narrowly divided the court, four to three, about whether these provisions were constitutional, and the current chief justice actually wrote the dissent.

In her dissent she found there was a pressing and substantial objective in the section, namely protection of racial and religious harmony and protection of human dignity. However, she felt the Criminal Code provision was only tenuously linked to the actual suppression of hate propaganda.

Further, she found the provision to be overly broad; she found it to have a chilling effect on legitimate free speech and expression. In addition, there were other methods, ones short of criminalization, that could be used to limit hate speech.

¿ (0935)

Last August we wrote the Minister of Justice identifying four concerns. The reply received did not seek to address our concerns at all but merely informed us that the bill would be addressed by the justice committee. We therefore bring these concerns to you in the understanding that your role as legislators is to assess the amendment before you and consider both the intended and unintended consequences.

Definition of hatred. The legislation does not define hatred. Justice McLachlin made the problems with this approach clear in her dissent in Keegstra when she said:

The term “hatred” in s. 319(2) is capable of denoting a wide range of diverse emotions and is highly subjective, making it difficult to ensure that only cases meriting prosecution are pursued and that only those whose conduct is calculated to dissolve the social bonds of society are convicted.

The defences. There are several defences, including good faith opinion on a religious subject. However, these defences are limited to the wilful promotion of hatred and do not apply to the other offences. Also, the Supreme Court in R. v. Keegstra and the Ontario Court of Appeal in R. v. Harding have indicated that in their opinion or as a consequence of their interpretation, the defences will not significantly narrow the application of subsection 319(2).

I'll quote the chief justice when she was then Justice McLachlin in Keegstra: “Quite apart from the fact that the onus lies on the accused to prove these defences, it is far from clear that in practice they significantly narrow the ambit of s. 319(2) of the Criminal Code.”

What confidence can we have that these defences will be sufficient to allow the public expression of moral or religious views on a variety of sexual practice? We're concerned that adding sexual orientation to section 318 of the Criminal Code will put a chill on legitimate religious expression concerning sexual practices. In the Keegstra decision, again, McLachlin said that criminal provisions relating to hate propaganda put a chill on law-abiding citizens, who fear the mere possibility of offending the law, while not in fact deterring hate-mongers.

Protection of sacred texts. Under the Criminal Code, literature becomes hate propaganda if it is used by someone to promote hatred against an identifiable group; in other words, the text does not violate the statue, a person does. We quote Leviticus 20:13, which says “If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death. Their blood will be on their own heads.” This is actually an advocation of capital punishment.

In the Owens case, which was referred to last week, Justice Barclay in one paragraph says “In other words, the Biblical passage which suggests that if a man lies with a man they must be put to death exposes homosexuals to hatred.”

This case, we understand, was decided under provisions of the provincial human rights code that prohibited promotion of hatred. A court could issue a similar ruling under the proposed legislation. What would be the consequences if a judge concluded that a portion of a sacred text promoted hatred under the provisions of the Criminal Code? If the above text is used by someone to promote hatred or advocate genocide as defined in the code, will the Bible itself be considered hate literature? Is it only in its use that literature becomes hate propaganda, or once used inappropriately, will it then be deemed to be hate propaganda in and of itself? How will section 320, dealing with seizure of offensive material, then be applied?

We know that when officials from the Department of Justice were asked by this committee in February whether this amendment could be used to criminalize parts of the Bible, the justice officials could not give a definitive answer. They could not guarantee it would not.

Public incitement. I won't go into it, but it's interesting that the definition of public place includes a church, which raises certain dilemmas.

I'll conclude. We are deeply concerned that if Bill C-250 is passed, it will put a chill on legitimate debate about issues that have a strong moral component for many Canadians and will potentially criminalize in practice what otherwise is a legitimate expression of religious belief. Bill C-250 raises legitimate concerns. A portion of the Bible or other religious texts could be considered hate literature, and the amendment could therefore result in limitations on their distribution.

Thank you.

¿ (0940)

The Chair: Thank you very much.

I'm going to go first to Mr. Toews for seven minutes.

Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much.

I appreciate the submissions made by the presenters here today.

Many of the presenters have focused on the human rights issue and the constitutional rights issue, and I think that is in fact the crux of the problem we have to grapple with. I know that distinctions were made between human rights legislation, which is seen more in a civil context, and the Criminal Code.

However, while the standard of proof may be different in the Criminal Code, that is, you have to prove the case beyond a reasonable doubt, the fundamental principles are the same. It's just an issue of how much proof you can bring to establish the same result. That's why cases like the Owens case, of course, would send a chill into the expression of free speech and indeed religious speech here.

I note the reference to the United Nations convention. As I understand the United Nations convention, they in fact did adopt those four principles we see in sections 318 and 319 specifically as the result of the experiences of World War II: colour, race, religion, and ethnic origin. They put those four into an international convention. As I understand it, international conventions have not yet included the sexual orientation category, and I think there are issues they are concerned about in terms of raising that.

My biggest concern perhaps has been very neatly summarized by the quote Mr. Chipeur cited in the Virginia v. Black case, that when one seeks to attack expression or statements, what are we banning? Are we banning the legitimate expression of political speech, as it was in this case, or religious freedoms, as Mr. Clemenger has pointed out in this context, or are we in fact attacking--and properly so--intimidation? This legislation doesn't make that distinction. The term “sexual orientation” is in itself vague and lends itself to a number of interpretations as to the issue of both the person and the activity.

Getting down to my question, then, I'll point out that the Keegstra decision was a four to three decision, and very grave concerns were expressed about the provisions of sections 318 and 319 in that context. What I'm concerned about is, if we amend sections 318 and 319 to include sexual orientation, what we may well be doing is putting sections 318 and 319 over the edge and in fact ensuring the section is unconstitutional. The concerns the now Chief Justice McLachlin raised in Keegstra will in fact come to light and destroy sections 318 and 319.

Perhaps, Mr. Chipeur, you should be arguing for the inclusion of sexual orientation if you want to get rid of 318 and 319. That may be the quickest way to get rid of sections 318 and 319, because of the unconstitutional impact of this decision. Perhaps you'd want to respond to that, Mr. Chipeur.

Mr. Gerald Chipeur: Let me just briefly respond by saying that I think we would actually have the opposite problem. One of the things the Supreme Court looks at when they make decisions about constitutionality is what this court, the court of Parliament, thinks about a particular section. If you were to amend this section, you would not just be blessing this amendment, you'd be blessing the whole concept Chief Justice McLachlin found to be a problem. You'd be saying, I don't see a problem with this section; this section is very clear to me as a parliamentarian.

I think that's a very negative message to send to the courts if you in fact don't believe that this legislation is actually very clear and very precise about what it is in fact making criminal and that which it is excluding from criminal activity.

The second part of my concern is that when this court, the court of Parliament, looks at this legislation, it has a duty, as does the justice minister. I don't know if the justice minister has weighed in here yet, but the justice minister must advise this committee whether in the opinion of the justice minister this legislation is constitutional. This committee should not pass an amendment to legislation it as a group, you personally as a committee, believe is unconstitutional.

So this committee, the justice minister, and the House of Commons as a whole must believe that the majority was right in Keegstra. It's my submission that the majority was wrong, that this committee should share this opinion, and that it should not amend this legislation. Instead, you should ask the justice minister to completely review these two sections.

¿ (0945)

Mr. Vic Toews: If Amnesty International could, I'd like them to answer because I want to hear from them on the international aspect and whether we're now inconsistent with international obligations.

The Chair: Mr. Battista.

Mr. Michael Battista: First of all, I'll make a general comment about the development of law. The interesting thing about the law is that the law develops and the law develops as needs emerge. I don't think that it's helpful to refer back to a period of time historically when the law was at a certain stage. It's interesting to note that during World War II homosexuals were persecuted by the Nazi regime; they were put into prison camps and they were exterminated. I don't think the fact that international law at that time did not recognize that reality or make specific reference to persecution based on sexual orientation is particularly helpful.

The second thing is that at the international level we are seeing increasing references to the protection of sexual minorities in various treaties and in treaty-monitoring bodies. On page 4 of our brief we refer to the fact that the UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights have for many years made reference to sexual orientation as a prohibited ground of discrimination and persecution under international covenants. Treaty-monitoring bodies have for years called on governments to end violations based on sexual orientation. It's important to recognize that the United Nations convention on refugees has been interpreted by governments as including sexual orientation and regarding people fleeing persecution based on sexual identity as a protected group.

The Chair: Mr. Fisher.

Mr. John Fisher: Mr. Toews suggested that in the civil and criminal context the standard of proof is different but the fundamental principles are the same. I would take issue with that. In the criminal context of course there's a requirement of mens rea, criminal intent. That requirement is not present in the civil context, which in human rights legislation is more concerned with the impact of a prohibited act upon the victim. One is an objective, victim-oriented approach, while the other requires active, criminal, wilful promotion of hatred, so the principles are different.

Mr. Toews referred to sexual orientation being a vague and undefined term. It's been in Quebec's human rights legislation since 1977, and in the past 26 years there hasn't been any suggestion it's ambiguous.

Finally, Mr. Toews suggested that the sections might be unconstitutional if we added sexual orientation to the legislation. I would respectfully suggest that the honourable member has it backwards. In the Vriend case the Supreme Court of Canada unanimously affirmed that Alberta's human rights legislation was unconstitutional because it failed to include a protected group that was equally deserving of respect and consideration.

I would suggest to this committee that the legislation as it stands, by being under-inclusive and by failing to protect a group equally needing protection, is unconstitutional, and the best way to fix it is to bring it into accordance with the principles of the charter.

The Chair: Mr. Marceau.

[Translation]

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you very much, Mr. Chairman.

I would like to thank the witnesses for their very helpful presentations. I have a lot of questions, but not very much time.

Mr. Chipeur, I would like you to shed some light on one point. You introduced yourself as an expert in constitutional law. I would like you to help me out, because I am not an expert. How can you say that the Supreme Court made a bad decision, when that decision has the authority of res judicata and thus force of law, and base your reasoning on the decision of a foreign court, the Supreme Court of the United States? I am just an ordinary lawyer, not an expert in constitutional law, and I have trouble following you when you use legal reasoning like that.

¿ (0950)

[English]

Mr. Gerald Chipeur: The Constitution is the authority within our constitutional democracy, and how that Constitution is defined from time to time is the responsibility of the Supreme Court, which makes decisions with issues before it. But this Parliament also has a responsibility to address the same decisions when it makes decisions with respect to the constitutionality of a matter.

It is possible, for example, for Parliament to disagree with what the Supreme Court of Canada has said and enter into what Justice Bastarache calls the dialogue between the court of Parliament and the court of law. That's what I'm talking about.

I readily agree that today, when a lawyer such as the attorney general of a province or a police officer deals with section 318 and section 319, that is the law. But we're here to talk about philosophy; we're here to talk about what should be, not what is, and my submission is about what should be, not what is.

[Translation]

Mr. Richard Marceau: You just said that we are talking about philosophy. I am a very avid reader of the "blues" of this committee. I am sure that you have read the evidence of the police officer from Vancouver, last week, who said quite clearly why he supported Bill C-250. Among other reasons, there is the fact that the group that is most at risk of being attacked on the basis of hate or group identity, homosexuals, is not among the groups defined in subsection 318(4) of the Criminal Code.

You defined yourself as a libertarian at the outset. So you want all citizens to have freedom. I assume that one of the freedoms we have in this country is to be able to walk down the street without getting beaten up, without being called names or harassed for who we are. We are not responding to police officers who want to protect perfectly innocent people who are attacked simply because they are homosexuals.

[English]

Mr. Gerald Chipeur: My submission would be that the current Criminal Code without sections 318 and section 319, forgetting about genocide per se, does give that police officer every power to stop any kind of intimidation, any kind of assault, and any kind of activity that is intended to harm another individual. That's what the Criminal Code currently provides for. This tacks on a further element related to what the person is thinking about in the process of either making a statement or an attack.

And let me just be clear. We're talking here about the fine line between a specific promotion of a specific act against a specific person, which is a crime, and the general, indirect promotion of violence, which we see in many parts of society and which we can all condemn. We can condemn attacks on any kind of identifiable group, and we can also condemn the media when it promotes violence generally. We can draw lines--and sociologists have drawn lines--between violence in the media, in the entertainment industry, and actual, specific acts of violence.

But we as society have said, you know what? Sometimes it's more important to have a generally free society than it is to have a police state, in which the government tries to mould every thought and every action.

I'm suggesting to you that it is better for society to allow a few people at the fringes to act in a hateful way or to think in a hateful way and promote hatred as long as it is not specifically harming an individual. It is better for society to do that than to try to use the heavy arm of the state because, as I said at the beginning of my submission, it is more likely than not that the innocent will be caught up in that net when there's an attempt to get the guilty.

¿ (0955)

[Translation]

Mr. Richard Marceau: I have to move on to another witness, but I assume that it is a matter of perspective. You say that there are a few people on the fringe who are doing that. When you are the person who suffers from it, whether the person doing it is on the fringe or not, it doesn't change the fact that you are the victim.

Mr. Clemenger, it is nice to see you again. You have been a keen follower of the deliberations of the justice committee. Currently, one of the grounds of discrimination is obviously religion. You would surely agree that one is not born with a religion, one chooses a religion. The choice may clearly be influenced by family and environment, but it is a choice. That was the first point I wanted to raise.

Second, I didn't quite understand the distinction you made between religion and sexual orientation. I assume you were referring to the question I asked someone appearing before this committee last week. I will ask you the same question.

You represent a church. I was taught in school, and surely you believe this too, that in order to be saved, you had to believe that Jesus was the Messiah. Large groups in society, including the Jews, do not believe that Jesus is the Messiah.

You can quite freely teach in your churches, and that is what I was taught, that it is a theological error to think that way. You have every right to do so, just as you are free to say that homosexuality is unacceptable. However, you can't go so far as to say that the Jews were wrong not to accept Jesus as their Messiah and that we can therefore persecute them, harass them and commit acts of violence against them. That would be crossing a line that must not be crossed.

By analogy, don't you agree that it is fine to say that God disapproves of homosexuality and that it is a sin, but that this cannot serve as an excuse for saying that homosexuals should be persecuted in one way or another?

That is how I read Bill C-250, especially as the defences under the Criminal Code provide that it is not belief that homosexuality is wrong or a sin that is an offence, it is encouraging violence or acting violently on that belief that constitutes an offence.

[English]

Mr. Bruce Clemenger: There are a lot more elements to it as well.

Yes, part of my thinking in trying to understand what sexual orientation is like in this sense--whether it's like race, colour, or ethnic origin or whether it's like religion--was prompted by your question last week. Again, if I say I believe that Jesus is the Messiah but Jews do not, we disagree; I think that they're in error in that, and they believe I'm in error in believing he was the Messiah.

The question is, can we have that dialogue, and can I even try to convert them to my way of thinking without impugning their human dignity? I believe we can, and in international human rights codes the idea of conversion is an allowable thing.

My question is this. When the identity of the person and the human dignity are wrapped up with the activity and the belief in a fused way, then at what point, when I'm saying someone's in error or that they should be converted, am I understood to be promoting hatred?

In this context of religion, people understand that I can respect someone's dignity yet challenge their faith perspective. What I'm saying is, according to the quote from L'Heureux-Dubé, she's collapsing those two, so I'm no longer able to do that.

My question is, under this provision can I still make a distinction between practice and identity, or are those things so fused that to say one is immoral implies that the person themself is immoral?

The Chair: Thank you very much.

We'll have Monsieur Robinson, please, for seven minutes.

À (1000)

Mr. Svend Robinson (Burnaby—Douglas, NDP): Thank you very much, and I want to thank the witnesses for their evidence this morning.

I have certainly had dialogue with Mr. Clemenger in the past on human rights legislation and other legislation that's been before the House. I recall his predictions with respect to the impacts of the Canadian Human Rights Act being amended to include sexual orientation. I'm sure Mr. Clemenger would find it interesting to go back and review his dire predictions to this House with respect to the implications of that legislation. I know that he would want to recognize that none of those predictions in fact were borne out. So with great respect, I take his evidence on this bill from the same perspective.

I want to just ask Mr. Chipeur a question, and I appreciate the fact that he, like Mr. Fisher, is being consistent. He says that he wants to repeal the hate propaganda legislation entirely and that in his view the balance should be struck in favour of allowing people to speak and to promote hatred, genocide, and violence in a free society.

I understand as well that on a Canada Family Action Coalition website you made the point--and it's one I'd like you to elaborate on--that if in fact Christians suggest it's okay for legislation to protect against hate propaganda directed at religion but not to protect against hate propaganda directed at sexual orientation, then this argument is a losing argument. This was the point you made; do you want to expand on that point?

Mr. Gerald Chipeur: I don't recall making that statement. It may have been a quote of me making that comment.

It's important to understand what the Vriend judgment said. It said that when a legislative body passes a statute intended to protect all human rights grounds under section 15, all those we think about when we think about human rights codes, we cannot leave sexual orientation out. It did not say that as a matter of constitutional law we must provide protection for sexual orientation, it simply said that if we're passing legislation that is comprehensive in nature, it must be included. That's an important constitutional distinction, and I think--

Mr. Svend Robinson: And that would include hate propaganda.

Mr. Gerald Chipeur: Exactly, and I think that's the point I was trying to make. That is, if we amend sections 318 and 319 now--and when I say “we”, I mean we as Canadians--then frankly what we're saying is, we have to list everything the courts have said is now in section 15 of the charter in sections 318 and 319 of the Criminal Code.

Mr. Svend Robinson: Including sexual orientation.

Mr. Gerald Chipeur: Including sexual orientation. So I think that as a constitutional lawyer I could not argue that point, and in fact that was probably the point I was trying to make. Again, I don't recall writing that, but I was probably quoted to that effect.

Mr. Svend Robinson: Absolutely, and I appreciate your reinforcing that point here, because I think this is relevant in the context, particularly with the points the witnesses from Egale and Amnesty International made, which is that we have a law here that is frankly largely a symbolic law. Since it came into force in 1970, there have been a total of five prosecutions--five prosecutions in 30 years.

But the point, which I think is an important one, is the symbolism of leaving groups that are protected out of that list, particularly for the group that is actually targeted more than any other. For example, according to Inspector Dave Jones--and I have his brief here--sexual orientation forms the basis for 62% of the assaults and robberies against the groups protected under section 718.2. He says, look, we include this in the Criminal Code as an aggravating ground, yet for some reason we don't include it in the hate propaganda section itself.

Mr. Clemenger, you actually said right at the start of your evidence, we don't condone speech that promotes violent acts, and I appreciate that. That's the purpose of this section.

Not too many people I know of are concerned about people saying, hate homosexuality. This distinction you make between sort of loving the sinner and hating the sin, the issue under hate propaganda legislation as it's been defined in the Keegstra case, is in fact promoting intense and extreme feelings that are associated with vilification, detestation, and destruction. I don't see people going out there and saying, bash and kill homosexual acts; they're talking about people.

What I would put to you is, given the evidence we've heard from the police, from Inspector Jones--who was speaking, by the way, on behalf of the Canadian Association of Police Boards--given that there's one group and only one group that is significantly targeted for violence and hatred--people, not acts, but people who are targeted--and given your evidence that this shouldn't be allowed, why wouldn't you support the inclusion of sexual orientation?

À (1005)

Mr. Bruce Clemenger: For the reasons I've described in the brief.

This is a very troubling bill for me. Again, I do not condone violent acts against anyone, including gays and lesbians. The question is, how do we extend protection in a way that does not jeopardize what I think is legitimate expression and speech? What I've done in the brief is, using primarily Chief Justice McLachlin but also other arguments, including that of L'Heureux-Dubé, I've tried to outline the fact that there is a dilemma here.

Going back to your earlier point, actually, I can go back to our brief on including sexual--

Mr. Svend Robinson: Most of them were dissenting judgments, weren't they?

Mr. Bruce Clemenger: They were, but they set precedents. You combine that with decisions in, say, Hugh Owens and other cases, and we think this fusion of practice and orientation causes problems; we fully expect people to begin testing the premise of religious freedom.

Mr. Svend Robinson: Do you support the legislation?

Mr. Bruce Clemenger: Let's go back. At first you said we presented a brief a number of years ago, and yes, I remember that brief and I did present it. Actually, I think a lot of the dire warnings were right and the consequences we foreshadowed have come true in a variety of test cases.

Mr. Svend Robinson: Under the federal Human Rights Act?

Mr. Bruce Clemenger: Not under the federal Human Rights Act.

Mr. Svend Robinson: That's what you were testifying.

Mr. Bruce Clemenger: Yes, but we were also questioning the term “sexual orientation” as to what implication it would have in federal statute and so on.

Mr. Svend Robinson: Okay, hold on. I want to give you a chance to elaborate on that. You said that those predictions on the definition of sexual orientation have come true.

Mr. Bruce Clemenger: I'm saying it's being tested.

Mr. Svend Robinson: Has there ever been an interpretation of sexual orientation along the lines you said would take place in your brief--ever, in Canadian federal law?

Mr. Bruce Clemenger: What I'm saying is that the issues we foreshadowed have come true in terms of a variety of cases, the Trinity Western case--

Mr. Svend Robinson: On the definition of sexual orientation?

Mr. Bruce Clemenger: On the implications of what sexual orientation means and how it applies when it's included in provincial or federal statutes.

Mr. Svend Robinson: Thank you.

The Chair: Mr. O'Brien.

Mr. Pat O'Brien (London—Fanshawe, Lib.): Thank you, Mr. Chairman. I want to thank the witnesses as well for your submissions today.

I have a couple of questions. Like a lot of people, I think the more we look at this issue of sexual orientation and exactly what the phrase means.... I'm not sure there's enough clarity around that, but I am quite sure, as I think all Canadians who think about it at all are clear, that unfortunately in this country people are targeted for violence because they're gay or lesbian, and that's clearly wrong. It's clearly illegal and immoral, and I agree with Mr. Clemenger on that.

I guess the reason I'm not convinced I should support this bill, Mr. Chairman, is that I also share some of the concerns about freedom of religious expression. The L'Heureux-Dubé opinion that was cited, folding the action and the actor together, is of concern to me as well.

I took the time the other day to go and talk to Father Van Hee down there by the flame. I looked at his signs speaking out against things like abortion, sodomy, and homosexuality. None of those signs called for attacks on anybody or promoted violence in any way I could see, yet we know he's been vilified for having these signs and for being out there. So I have concerns whether somebody like that is going to be able to carry out his freedom of expression.

I want to link these hearings with other hearings we all are very family with, the same-sex hearings. There have been cases in those hearings, as I recall, where people were quoting the Bible and members of the committee interjected and asked you to rule that this was intemperate language, improper, and so on. It's hard to decouple what we're doing here with what we were experiencing very recently in these same-sex hearings, which we haven't concluded. The juxtaposition of the two bills is interesting, and I think this lends credibility to the argument Mr. Clemenger makes, that there isn't--

À (1010)

[Translation]

Mr. Richard Marceau: Mr. Chairman, excuse me. On a point of order.

[English]

The Chair: Is that a point of order?

[Translation]

Mr. Richard Marceau: Yes. Mr. O'Brien suggested that members of the committee—so we are not talking about witnesses—had said that quoting passages from the Bible was unacceptable. Having participated in all of the meetings of this committee but one, having taken a position in favour of same-sex marriage and having personally questioned some people who quoted the Bible, I would like to know whether Mr. O'Brien was referring to me. Is he saying that I said something like that? And if not me, which committee member was he referring to? We have to be very careful. I hope that Mr. O'Brien was not trying to suggest that one of the members of this committee said such a thing.

[English]

The Chair: I will attempt to articulate what I think Mr. O'Brien is referring to in a way that will not implicate anyone in terms of asking for people to be ruled out of order for their references to the Bible.

During the course of the hearings on same-sex marriage, on occasion people would in their presentations refer to the Bible and then refer to other acts, use other language, or perhaps go beyond the place where some members of the committee felt it appropriate. Members of the committee would from time to time ask the chair to step in, and I would in fact ask people to be respectful. On no occasion did anybody who was making a presentation before this committee on the other issue have their opportunity to present to Parliament denied. We simply asked for respect, and for the most part we got it.

I understand what Mr. O'Brien is referring to. Interventions were made, and one can imagine that when one is speaking in a paragraph, a sentence of that paragraph might refer to the Bible. I don't think it was the Biblical references that were found offensive but rather arguments taken from those reference, arguments that went beyond those Biblical references. I believe that's what happened and I would like the record to show that. I hope that's an acceptable explanation, and we'll move on.

Mr. O'Brien.

Mr. Pat O'Brien: Thanks, Mr. Chairman.

First, I don't think it was a point of order, but I don't mind the clarification. I stand by what I said. If you look at the transcripts, there were several occasions where people were citing the Bible and members of the committee said in the course of the presentation that they felt this was excessive language.

I think the point is that it doesn't give me assurance that it is covered adequately in this bill. Father Van Hee's signs do not call for violence from what I've ever seen, but when they are taken away and thrown over the edge of the side of the hill there, I don't consider that the kind of tolerance I'm looking for with this bill either.

I want to move on to a question for Mr. Chipeur. I'm starting to become convinced by your argument that maybe no list at all is better than adding to the list in any way. How do we develop an exhaustive list? I sort of hear you saying that. My question is pretty straightforward: how would we guard against a hate crime if there was no list at all?

Mr. Gerald Chipeur: What the U.S. Supreme Court said was that when hate itself, the thought of hate, the emotion of hate, expresses itself in a manner that intimidates an individual member of society, that's when it is properly a crime and properly the subject of parliamentary attention. When it's a matter of hate in and of itself--in other words, where someone is not intimidating anyone else but is simply the person on the fringe who, because of whatever baggage they happen to personally have, expresses thoughts that are obviously hateful, obviously morally reprehensible--we as a society do best to leave that person alone in terms of government sanction and instead allow the free debate that goes on in society to apply the appropriate consequences to that person.

If that person is ostracized from society because of positions they take, then that's what J.S. Mills said was the appropriate consequence. Criminal consequence for something that does not impact others is not an appropriate action by society acting through Parliament.

À (1015)

Mr. Pat O'Brien: I understand that, but I don't see that this addresses it. Surely you acknowledge that groups are targeted for violence in Canada; it's not just random against individuals. If any society needs to acknowledge that, I think it is the United States of America, where groups are targeted for intimidation and violence on the basis of their minority status, that is, so terribly the blacks in the U.S. for so long.

I still don't see how what you're saying addresses violence. Sure, if it's targeted against an individual because of that person's membership in a minority group, it has different implications than if it is just random violence against an individual.

I agree with the intention of Mr. Robinson's bill. However, as I said at the opening, I'm not reassured, not by what I've experienced around this place in 10 years, nor by the hearings we've just had or by other events that have taken place, that this bill adequately addresses freedom of religious expression, the part Mr. Clemenger cites, so I'm unconvinced I should support it.

But I'd like to probe this with you a little more.

Mr. Gerald Chipeur: Let me just be clear, then. On the question of human rights there was much said about the international human rights movement, the Canadian human rights movement, and the movement to make sure all are treated equally. I support those movements and I clearly count myself among them.

To the extent we are trying to change attitudes, that's where this parliamentary committee should be addressing its attention to human rights legislation. To the extent we are trying to use the club of the Criminal Code to change attitudes, that's an inappropriate use of the Criminal Code. I'm suggesting that sections 318 and 319 as will be worded if this amendment goes through will be so vague as to allow abuse.

In the area of criminal law we have a charter that requires us to be very careful when we use criminal law powers, and I'm suggesting that as worded....

Clearly, genocide is something to be condemned at all times, and I just wanted to make that clear. I don't support any kind of repeal of the genocide type of legislation. Let's reintroduce something that specifically talks about genocide and genocide alone or torture or something like that.

But if we're going beyond that and we're now talking about just hatred, as much as we might like to morally condemn hatred, I'm suggested hatred per se is not the appropriate subject of Criminal Code sanction.

Mr. Pat O'Brien: Thank you.

The Chair: Mr. Sorenson, you have three minutes.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): I remember, during another debate on another day, Mr. O'Brien pretty well hit the nail on the head when he said--this is a very loose paraphrase--that he didn't understand the law to the degree other people around here did--and I'm in the same boat as he is--but that he did understand his constituents. I don't know if he remembers that day.

I think I'm in the same boat in that I don't understand the technicalities of the law, but I understand the response this piece of legislation has drawn in the thousands and thousands of letters to my office--and I don't exaggerate when I say that--from people who are concerned. They're people who have a concern or, and I'll be the first to admit it, a lack of confidence in the court system. A lot of individuals are afraid that what may happen and be said even here will be interpreted in a different light by a court maybe next year or maybe ten years down the road.

Three years ago members of Parliament voted 216 to 55 in favour of a motion brought forward to keep the definition of marriage the same. We've seen now where the courts have invoked the charter, saying it contradicts part of the charter, and now we're going through the whole exercise again. So Mr. Chipeur, when he talks about the court here, the concern in a lot of the general public out there is that regardless of what happens in this court of Parliament, there is another court who will perhaps step up to advocate something quite different.

Mr. Chipeur, I believe it isn't necessarily the responsibility of the courts to understand or determine motivation for hate. I listened quite intently when you talked about getting rid of sections 318 and 319. I think your argument is that including more and more groups will eventually just dilute the whole part where it talks about hate literature, hate crimes, and genocide to the point where the courts are going to be spending most of their time determining whether it was motivated by race, colour, or religion.

There are other groups who may want to come in, although Mr. Robinson says this is the only other group that ever needs to be put into this section. Maybe there are other groups out there who will come forward and say, listen to us. Somewhere down the road the elderly, when they become viewed by some as a strain on society, might be a group we should include in this. Others might say that AIDS victims are a certain health concern to society if they become a drain.

Could you just expand on that a little bit, please.

À (1020)

Mr. Gerald Chipeur: Well, it's interesting. I'll reference a very authoritative group in the music industry right now, the Dixie Chicks. They have identified a group in their song Goodbye Earl, men who abuse women, and they say that group has to die. That's not in section 318 and 319, nor is gender. The problem we face when we start to tinker with what's going on in here is that when someone else writes a song, maybe about Shannon needing to die or some other identifiable individual needing to die, all of a sudden it leaves that individual or that group subject to legal attack in society because they have said something controversial.

Obviously, there are other consequences for someone who says something controversial. The Dixie Chicks found that out when they said George Bush made them ashamed he was from Texas. That was a big consequence for them.

This is what I'm suggesting Parliament should do. It should leave those kinds of natural consequences that happen in the free flow of debate to society and step back from trying to solve every problem. It doesn't mean hate is not a problem--it's a problem--but let's not use the Criminal Code to deal with it.

The Chair: Thank you very much.

We'll go to Ms. Fry.

And I admire any witness who can use John Stuart Mill and the Dixie Chicks in the same context--

Some hon. members: Oh, oh!

The Chair: --because I confuse them.

Some hon. members: Oh, oh!

Ms. Hedy Fry (Vancouver Centre, Lib.): I just wanted to make a comment on the international obligations. I think that there is a sense that Canada should in fact do domestically what it says internationally. Since 1993 Canada has gone to all of the international meetings of the United Nations and added sexual orientation as a prohibited ground. Whether it be on racism within the United Nations World Conference on Racism or on other, related forms of discrimination, whether at the Committee on the Elimination of Discrimination against Women, at the Beijing Conference, or at the Human Rights Commission, it has always added sexual orientation as a specific ground.

Now, the United Nations has not specifically accepted that, but it has always said “and other” in its list. And every time it said “and other”, Canada, the U.S., Britain, South Africa, New Zealand, and the European Union have always added a sort of asterisk that said, we take “other” to mean sexual orientation. Canada is very clear on where it stands on that issue, so we have to maintain domestically what we have spoken so strongly about internationally. That was just for information.

I know everyone is very concerned--and I understand this concern and accept it as a concern--that the Bible will possibly be defined as hate literature if we move this amendment forward. But you know, there are other things in the Bible that have not...if you look at the four grounds right now cited within sections 318 and 319.

We do not put to death those people who work on the Sabbath, yet that is a religious consideration. Some religions decide that the Sabbath is in fact a time when we should not work, whereas in other religions people do work on the Sabbath. But the Bible in Exodus 35:2 says you should not work on the Sabbath, and those who work on the Sabbath should be put to death.

We don't do that, and nobody says the Bible is hate literature for suggesting that or is out of line for suggesting it. I think most judges and most Canadians today look at the Bible within its historical context and realize that a lot of things don't hold water anymore, things like slavery and it being shameful for women to speak in church. That's how I see it, and I'd like somebody to explain anything different to me.

We go back to what Mr. Chipeur said. Either you agree with the four groups being where they are right now, or you cancel the whole thing and you take them all out, or you decide that you're going to expand that group to include a group who, as the Canadian Association of Police Boards has said, are particularly subject to violence at this point in time. I would like to hear your opinion on that, Mr. Chipeur.

And then, Mr. Clemenger, you talked a little bit about the fact that the human rights code allows for conversion from one religion to another. If you speak about one religion being wrong and therefore you try to convert them, that's acceptable.

So if you continue to say that homosexuality is something that's learned and that you can convert them, I don't see how that is very different from saying you can convert Jews to Christianity and Muslims to Christianity. I still see that as a conversion argument. I don't agree with it, but you've been allowed to say it in the same way you have the others, so I don't see how that is a particular problem either.

Mr. Chipeur, again, you've suggested that this whole idea of freedom of speech is at risk here. Don't you think the balance between freedom of speech and incitement to hate has been in fact found in that for all the years this has existed there has only been one successful case, and that has been Keegstra? It would seem to me we have found that balance and the courts have ruled appropriately.

À (1025)

The Chair: Thank you, Ms. Fry.

Mr. Chipeur.

Mr. Gerald Chipeur: I appreciate the question, and I have to take issue with the decision in the Keegstra case. I think that is one case where it should not have been used. I disagree with the majority. As a constitutional lawyer, I am gravely concerned about the use of the Criminal Code in those kinds of cases.

The appropriate consequence for Mr. Keegstra was, he lost his job as a public school teacher. That was a very significant consequence. He also faced potential action under human rights legislation.

The fact is, when you're dealing with attitudes that negatively impact individuals in the workplace or in the public square, when we're dealing with attitudes, when we're dealing with emotions, and when we're dealing with thoughts, human rights legislation is, in my view, adequate to properly address that issue. We're not trying to punish someone for their hateful thoughts; what we're trying to do is change them because we don't want them to eventually have a negative impact on others.

If that's our goal, if changing attitudes is our goal, then I would submit that this committee should direct their attention to the Human Rights Act when trying to deal with hateful attitudes.

If we're talking about actual impact either through intimidation, through assault, through murder, or through any of the things that have been highlighted as problems within our society, the Criminal Code without sections 318 and 319 gives a police officer and the Attorney General all the power they need to actively and effectively combat the problem of actual intimidation and impact on individuals.

The Chair: Thank you.

Mr. Clemenger.

Mr. Bruce Clemenger: I too understand those biblical passages in a broader context, and I also mediate them through my understanding of the New Testament in the gospel and teachings of Christ.

To explain where the concerns come from, again, I go back to the Owens decision in Saskatchewan, where a court actually said that the Biblical passage suggesting that if a man lies with a man, they must be put to death, exposes homosexuals to hatred.

Mr. Svend Robinson: On a point of order, Mr. Chairman, I'm sorry to interrupt Mr. Clemenger, but I know he would want to be clear that it wasn't just a Biblical passage; there was a context as well.

À (1030)

Mr. Bruce Clemenger: Yes, there was a context, but why I quote it is that he actually narrows it down to the passage itself.

The Chair: We've discussed this many times, so we can all draw our own conclusions.

Mr. Clemenger.

Mr. Bruce Clemenger: We have that precedent; that interpretation was found under the Criminal Code provisions.

It's a question: what then happens to the Bible if it's found to be used in the promoting of hatred, in hate propaganda? What happens under section 320? We're asking the question because it seems that certain consequences will follow.

In terms of the conversion side, the L'Heureux-Dubé quote I refer to actually quotes from Egale's factum in the Trinity Western case. Maybe it's better to let Mr. Fisher talk about whether he finds it offensive to suggest that gays and lesbians can change their orientation.

Ms. Hedy Fry: Excuse me, I just want to clarify the answer from Mr. Clemenger.

Are you saying it's okay if the Bible says you can put people to death? That's okay?

Mr. Bruce Clemenger: No.

The Chair: Now I'm going to Mr. Fisher, who'll end this round.

Mr. John Fisher: Thank you.

There are a couple of points on which I think Mr. Chipeur's analysis falls short. He referred a couple of times to enabling with free debate an expression of ideas, and if there's an impact on a specific individual, that's covered by other sections of the Criminal Code. That's true if it's against an individual, but what he seems to overlook is the fact that if you target a whole group of people, then there is no criminal provision that steps in. The harm is no less just because an entire group is targeted rather than a specific individual when we know that people are incited to commit gay bashing.

We know that some people can't stand living in an environment where they're told that they're sick and disgusting and wrong to a point where more young lesbian and gay people are killing themselves than their heterosexual peers. Clearly, there is a harm that derives from targeting the entire group, so to have to pinpoint it to the individual, I think, overlooks the whole purpose of hate propaganda legislation.

The other concern around leaving it to the marketplace of ideas is that this also overlooks the difficulties that arise if the general marketplace is receptive to the hate propaganda, as the Keegstra case illustrates. The whole origins of these laws are because of the very effective use of hate propaganda made during the Nazi regime, where minorities were targeted. Who was there to speak up and say the marketplace of ideas was sufficient to govern that?

One final point I'd like to make is the concern around freedom of expression. I'm somebody who likes to speak my own mind. I like to have freedom of expression, and I have some fairly strong views on some things, but I'm subject to the law as it stands.

I can't promote hatred against anybody on the grounds of religion. Goodness knows, I've had enough provocation from religious groups to feel that yes, there are some views I disagree with very strongly. And I'm not shy about saying when I disagree with that, but I don't feel my freedom of expression is limited by the current law because I don't want to promote hatred on the basis of religion. I feel there is ample scope for me to say I disagree with these religious views and I disagree with them strongly.

I express outrage at times at some of the things I hear, but I don't feel that subjects me to hate propaganda legislation because I'm not wilfully promoting hatred on the grounds of that religion itself.

The Chair: Thank you, Mr. Fisher.

Monsieur Marceau, you have three minutes.

[Translation]

Mr. Richard Marceau: Thank you, Mr. Chairman.

Mr. Fisher, I would like you to comment on Mr. Chipeur's argument. He said that since the courts have interpreted section 15 of the Charter to include sexual orientation, if sexual orientation is not included in section 318 of the Criminal Code, that entire section would be ruled unconstitutional. I assume sexual orientation could also be read into section 318.

Mr. John Fisher: In our opinion, it is clear that the law must provide equal protection to all groups that need it. According to the decision in Vriend v. Alberta, sexual orientation must be an included ground of discrimination if there is enough evidence or there are enough facts to indicate that homosexuals are a group that needs to be protected.

It is clear that gay, lesbian, bisexual and transgendered people are victims of violence, hate crime and hate propaganda. Under the Charter of Rights and Freedoms, these people must be given full protection.

Mr. Richard Marceau: I have only three minutes.

The President of REAL Women came before the committee last week and asked why this group needed to be protected and not another. For example, why not protect women, who are sometimes the target of hate literature? How do you respond to the arguments of REAL Women?

À (1035)

Mr. John Fisher: The difference between Ms. Landolt and Égale is that her solution is to make sure that gay and lesbian people are not protected by the law, whereas our response is that all groups in need of protection should be included.

It is our position that groups in need of protection on the grounds of sex, gender identity or disability should be protected. We are dealing here with a specific bill, the purpose of which is to protect a group that we know needs protection. It should therefore be passed. However, we would encourage the government to consider other grounds, so that the law protects all members of our society.

Mr. Richard Marceau: Thank you.

[English]

The Chair: Merci.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Chair.

It seems to me that if the Attorney General was presenting this bill for our consideration, the first question we would ask him would be, does this address some sort of significant concern? From what I'm gathering from the witnesses thus far, there have been something in the order of five cases, four of which have been defended successfully and one of which is in dispute.

Then you would ask the question, well, if you're going to present this kind of bill, what would be the impairment to discourse in the society? What would be the other, unintended consequences, if you will? Then you'd ask questions such as, are the terms of the proposed amendment clear and understood?

From previous witnesses I've understood the definitions, particularly of hatred, to be something less than clear. I heard it used in some pretty casual sorts of ways, particularly around this place, as to hateful comments. There seems to be a kind of ever-expanding pool of what constitutes “hateful”. Then you get into the areas of unintended consequences, which Mr. Clemenger has elucidated.

I wanted to ask Mr. Chipeur about the one defence on which Egale sort of hung its hat. That had to do with the fact that you had to go through the Attorney General and/or his or her designate. That was held up as a sort of stop-gap to this kind of expanding issue of what does and what doesn't constitute hate. I wanted to ask him whether in fact he sees that as a significant defence or, if you will, a stop-gap to prosecution.

The second question had to do with whether he and/or Mr. Clemenger thought this was in effect a use of the Criminal Code to chill debate, that in fact people couldn't have a free exchange of ideas on the morality of sexual orientation because of their concern that they would now be bordering on Criminal Code violations.

Mr. Gerald Chipeur: Thank you for that question, because I think it highlights my concern better than anything else could.

I was in Alberta at the time Keegstra was prosecuted the first time and the second time. It was very clear to me that the Attorney General authorized prosecution not because Mr. Keegstra was successful in propagating his hateful ideas, ideas that deserve the condemnation of everyone in society, but rather because it was politically popular. Everyone agreed that Mr. Keegstra was a bad guy, that he should be fired, and that he should be publicly flogged, and this was the way to publicly flog him. The Attorney General got lots of political mileage out of authorizing the prosecution of Mr. Keegstra.

In fact, I don't think this in any way limits the use of this kind of statute in the kind of situation we're talking about. All it does, as I said earlier, is to engender base emotions; it promotes feelings of hate in and of itself because now everybody hates Mr. Keegstra.

Ironically, Mr. Keegstra would not otherwise even be known or remembered anywhere in Canada today. His ideas would be long gone but for the fact that we did prosecute him twice and we gave him the opportunity to spout his hateful theories in a courtroom for all to hear over and over again in our newspapers, in our magazines, and on television.

I think that's just a mistake as a matter of public policy, to give these kinds of fringe elements that kind of platform. It doesn't say very much about our society if we can't defend our own democracy and our own ideas about tolerance, understanding, and human rights against this kind of person but need to use the heavy arm of the law to stop him. It just doesn't make sense.

J.S. Mill said that in a free society where there's a free debate, truth will win. I trust that will happen and I urge this parliamentary committee to trust the people, to trust open debate, and not to trust an attorney general who is subject to the vagaries of public opinion and popularity contests from time to time.

À (1040)

Mr. Svend Robinson: Mr. Chairman, I think that Mr. Chipeur has in a very powerful and eloquent way actually made a point I wanted to make with respect to the possibility that somehow the Bible might be actually criminalized under the provisions of my bill. There is not an attorney general in this country anywhere at any level who would consent to the prosecution of an individual for quoting from the Bible.

Mr. Chipeur made the point that in Keegstra it was politically popular, I think you said. Well, an attorney general who tried something like that would be run out of town on a rail. Anyone who suggests that somehow an attorney general is going to give consent to criminally prosecute an individual who's quoting from Leviticus or Romans--and I know them all, trust me, I've had them all quoted to me--it's not going to happen.

In fact, I hope all members of the committee have had the opportunity to review Philip Rosen's very learned treatise on the impact of this bill. We all know Phil, he's been around for a long time, and he knows these issues--

The Chair: He told me, since 1867.

Some hon. members: Oh, oh!

Mr. Svend Robinson: Not quite that long, but he knows the Constitution well.

The Chair: What did he say the last time? That the first day he came here he was wearing a top hat.

Mr. Svend Robinson: In any event, and I just want to remind members of the committee this, he points out that in fact in Ontario and New Brunswick provincial attorneys general refused to consent to the prosecution of obvious hate promoters. One was the Zundel case; we all know Ernst Zundel. In another case it was Malcolm Ross in New Brunswick. Attorneys general didn't prosecute in those cases, Mr. Chairman. I just wanted to make that point and draw to the attention of members of the committee that this was the case.

Also, I'm sure that when Mr. Clemenger talks about Saskatchewan, he would want me to remind the committee that there was an Owens case, in which there was a complaint about an image in an ad in which basically the universal symbol for “wipe out” or “ban” was used in the context of Bible verses.

I'm not sure how many members of this committee know that there was another case in Saskatchewan. It was a human rights complaint as well, and it was a case that was based just on the Biblical chapters, chapters from the Bible and quotes from the Bible. That was a second case in Saskatchewan. It went before the Human Rights Commission, and you know what? It was thrown out with a powerful and strong statement by the Human Rights Commission--and Mr. Clemenger, I'm sure, would be aware of this--that said, look, people are free to quote from the Bible at will.

That's not the issue here. The issue in the Owens case was the juxtaposition of that banning symbol and the possibility that it might lead to hatred. So there were those two cases, and I think it's important to make it clear that those were the two cases.

What this is about, Mr. Chairman, is saying basically that there's a gap in the existing hate propaganda laws, that there is a problem, and that the law should address it.

The Chair: Thank you, Mr. Robinson.

I'm going to go to Mr. O'Brien.

Mr. Pat O'Brien: Thank you, Mr. Chairman.

With all due respect to my colleague Mr. Robinson, I'm not too reassured by the predictions anybody would make, he or anybody else, about what the legal system in this country will or won't do.

It wasn't very long ago, I think, the majority of Canadians would have said, surely no court would attempt to redefine something as fundamental and obvious as marriage. I don't think Canadians are now very reassured that the courts aren't in fact going to try to do just that--but not with my support, I might add.

So the assurance is not very reassuring. I'm sorry, that's what my constituents are telling me and that's what I as one Canadian am feeling.

Let's leave the Bible alone for a minute. Mr. Sorenson mentioned our constituents. I want to make clear that I have a significant number of constituents who are Muslims, people of the Islamic faith, and they share the same concern about their holy book, the Koran. They are not reassured that they will be able to have that protection for freedom of expression.

My question, Mr. Chairman, is to Mr. Clemenger. Do you agree there's a problem that gays and lesbians are being targeted for violence in this country because they're gay and lesbians? I think there is. I think it's obvious. I think it's illegal. I think it's immoral.

À (1045)

Mr. Bruce Clemenger: Yes.

Mr. Pat O'Brien: How should we deal with it? You're not reassured, as I'm not, that this bill on its face is the right way. I'd like to hear your view as to how you honestly think we should deal with it. Should the government take some other action or what?

Mr. Bruce Clemenger: Actually, the cluster of groups I represent are of different minds. Some would advocate along with Mr. Chipeur that the section just be eradicated and that we rely on Criminal Code provisions against assault. Others think the section should be retained, and they would be open to the idea of including sexual orientation if our concerns could be addressed.

If there is common agreement that no, it's outlandish to suggest the Bible or the Koran will be targeted, again, I remind this committee that in February Department of Justice officials were asked that very question and they could not guarantee it would not. Perhaps we could have an amendment to section 318 or 319, just another subsection with a qualification saying this does not apply to religious text.

Now, I say that but I also understand that the section itself would be scrutable under the charter. Again, although L'Heureux-Dubé was, I agree, in the minority in the Trinity Western decision, she is still mapping out a scenario that gives us grave concern in terms of how we can separate out the activity from the identity.

I could come up with a series of amendments that may help shore it up, but again, those aren't foolproof under the Constitution, so we're in a dilemma.

I do not, again, condone any acts of violence against any person, including gays and lesbians, yet I see all sorts of intended or unintended consequences flowing out of the legislation. We're not sure how to fix this, and we're not sure how to fix it in such a way that we balance freedom of expression and religion with the real need of gays and lesbians to be protected from harm and violence.

The Chair: Thank you very much.

There's one more point.

Ms. Adèle Auxier (Research Assistant, The Evangelical Fellowship of Canada):

I'll just add a quick comment to that. We have to come back to this issue of how we categorize sexual orientation or what we associate it with, and it is complex. It's human identity, there are a cluster of behaviours, and all those things.

But as long as we continue to ignore that and say it's okay to just stick this term in wherever, we're going to continue to have cases like the Scott Brockie case. There you have a man who has a great relationship with gay and lesbian staff who work under him and a great relationship with gay and lesbian clients who come into his business regularly, yet he has his life completely disrupted for five years with severe sanctions. Why? Because he said, look, my convictions don't allow me to support a gay advocacy group.

As long as we're not looking at this orientation and behaviour distinction and we continue to bracket it, we're going to keep prosecuting people like Scott Brockie and we're going to keep giving fodder to real hate-mongers, who really need to be dealt with.

The Chair: Quickly, Mr. Fisher.

Mr. John Fisher: I think Mr. Brockie's great relationship with the gay community is overstated somewhat. The Lesbian and Gay Archives is not an advocacy group, it's a group that gathers history, and in that case all they wanted was a business card and letterhead printed up. It was under human rights legislation but even that was too much for Mr. Brockie, who refused service to them as members of the public seeking service.

At least Mr. Clemenger acknowledges that at best a concern around religious speech requires us to look at religious exemptions. It doesn't mean we shouldn't be protected under the law at all, and according to us there already is a religious exemption in the legislation. In our view, it would be as illogical to say, we want to protect religious speech, so we won't protect gays and lesbians from hate propaganda at all, as it would be to say, we want to protect religious marriage, so we won't give gays and lesbians access to civil marriage.

Obviously, what we're looking at are exemptions to the general principle, that we're entitled to participate equally under the law.

The Chair: Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

I'd just like to touch on something you alluded to, Mr. Fisher. You said it goes a bit beyond this discussion and we're dealing with one specific issue here, but you also mentioned you would be supportive of extending the same types of protections to other vulnerable groups or other groups that needed it.

I guess there's a bit of a concern there. Do we blur the lines or at what point do we draw a line, and which groups would we be looking at? I can cite cases like the one in 1968 in Vancouver where there was propaganda in the newspapers, including from one mayor, if I recall correctly, who advocated shooting all the hippies or running them all out of town. I considered myself a member of an identifiable group at that point, and in fact I was beaten up severely in the West End of Vancouver in 1969 for that very reason.

I can go to other cases, and I mentioned one last week. I received a letter two weeks after my son was murdered, saying he deserved to die because his hair was long, because he wore an earring, and because he was a skateboarder.

What about young people in school who are bullied because they're obese? What about people who are harassed because they're obese? I just want to explore that. Where do we start to blur the lines? I'd like to get a reaction from everybody on that.

À (1050)

The Chair: Mr. Fisher.

Mr. John Fisher: There are currently lists of grounds in the hate sentencing provisions of the Criminal Code. Presumably Parliament in adopting those grounds has identified a number of groups who are persistently subject to this kind of violence, this kind of hatred, this kind of victimization in our society. Parliament has signalled its interest in addressing that violence and that hatred against those groups.

Clearly, the list of groups currently protected under the hate propaganda provisions is woefully incomplete. As I've said before, we would support adding in the kinds of groups against whom there has been consistent identification for victimization and hatred in our society.

These laws are not designed just to address a specific constellation of circumstances, but when there is an identifiable, repeatable pattern of victimization and abuse, such as is clearly the case with sexual orientation and gender identity, over the course of decades--one might even say centuries and millennia--then it would be completely wrong for Parliament to ignore that and look the other way while protecting only some of those groups.

If you can identify additional groups in the future, then that's one of the reasons we left the Charter of Rights open-ended, so new groups could be identified over time as the need arises.

The Chair: Mr. Battista.

Mr. Michael Battista: I think the benefit of this kind of legislation goes beyond simply the enumerated groups. In fact, the message it sends is that when you target anyone based on an immutable personal characteristic, regardless of whether its specifically listed or not, that's something that's not acceptable in our society. To that extent the low number of prosecutions under the legislation actually speaks to the effectiveness of the legislation.

I know Mr. McKay was making a point about whether this is necessary, given of the low level of prosecutions, but I think this could be an argument that in fact the legislation is working because it is sending the message in wider society that this climate of impunity for abuses based on a personal characteristic has to be eliminated.

The Chair: Thank you.

Ms. Jennings.

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): I have one statement to make, which is the fact that in the hearings I have been privileged to attend on Bill C-250, among those witnesses who have come before us basing their opposition to the bill on religious freedom, I have not heard any witnesses from the Sikh religion, for instance, the Hindu religion, Buddhism, or Islam. I'm concerned about that because one might be able to say that people of these other religious faiths have no problem with either the legislation as it now stands or the inclusion of Bill C-250.

My question is to Mr. Chipeur. You said in a quote before that truth will out, that when free debate is allowed in a democratic society, truth will out. I in fact agree with you. The problem is, how long is it going to take for truth to out?

If I look at people of African origin in North America--and there is significant immigration of Africans into Europe now--truth still doesn't appear to have outed and won a clear and convincing victory. When you still have individuals of African ancestry in the United States who are murdered specifically because of the colour of their skin and their ethnic origin, then truth still hasn't won.

As someone who is a member of an identifiable group and who has a daughter who is also a member of an identifiable group, notwithstanding that only one of her four grandparents is of African origin, I'm concerned that truth will not have won by the time she is out in the general population. And if she has children, truth may still not have won. Truth still has not won for people of African ancestry. Truth has still not won for some of the other identifiable groups, if they're Semitic, for instance. Anti-Semitism is alive and well and thriving in many countries that are democratic countries.

So my concern and my question to you is, how long are you prepared to wait for truth to win against hate propaganda and hate against gays and lesbians?

À (1055)

Mr. Gerald Chipeur: I think that you make a good point about society playing an important role in changing attitudes. My point is not that Parliament should not lead the debate. I believe Parliament can lead the debate through human rights legislation and through multiculturalism activities; there's a specific secretary of state with those responsibilities. That's where you're going to actually change the mind of someone. Making something a criminal offence simply allows the state to clean up afterwards for a problem that is already there.

The point about whether hatred is about race, sexual orientation, or religion is an important consideration, but I would suggest that there are very few acts of violence or murder that are not based upon hate of some kind. Whether it's a small group or whether it's an identifiable group, killing someone has to be the act of someone who is driven by attitudes that most of us can't even understand, and we therefore punish it appropriately.

I'm suggesting that this is when the Criminal Code steps in, when we have someone acting for whatever reason, whether it's about race or sexual orientation, and either kills another person or intimidates or threatens or counsels. I think it's important to understand that counselling the destruction of a group is still going to be a Criminal Code offence even if there is no identifiable person. Counselling a crime is a crime.

It's my view that your concerns are valid and real and that the focus of this committee should be in the human rights area, where you do have responsibilities, because I believe that in the long term you're going to be more effective. I'm not saying you're going to be completely successful when we think about the human condition, but the fact is that you're going to be more successful than by using the Criminal Code.

The Chair: We're out of time, and Mr. Clemenger has asked for one sentence.

Mr. Bruce Clemenger: I have spoken to a number of Muslim organizations, and they are concerned about this bill. Their small community has been involved in privacy legislation on the issue of marriage and so on, but I will encourage them to make a submission to the committee.

The Chair: Thank you.

Mr. Neve, because Mr. Clemenger was good at getting in his sentence, you get one sentence.

Mr. Alex Neve: I just want to respond to Mr. Chipeur's advice to the committee that Canadian law should instead take an approach to wait until the consequences of hatred have manifested themselves.

I would urge upon the committee that you take a strong human rights perspective here. Human rights law internationally very clearly says governments need to do everything they can to prevent and head off human rights violations. Hatred is the fertile ground in which human rights violations take root. It encourages and it even celebrates active violence. Attacking it at its root is the best human rights way forward.

The Chair: Thank you very much.

I thank you very much, the panel and the committee.

The meeting is adjourned.