JUST Committee Meeting

    I call the meeting to order.

     This is meeting number 36 of the Standing Committee on Justice and Human Rights. Today is Monday, October 5, 2009. Just as a note, today's meeting is being televised.

    You have before you the agenda for today. We have two matters to deal with. During the first hour, we'll begin a review of the Canadian Human Rights Act, more particularly section 13. We also have two witnesses appearing on that matter. And just so you know, during the second hour we'll return to our review of Bill S-4, An Act to amend the Criminal Code (identity theft and related misconduct). We have one witness appearing on that bill.

    Once again, I remind everyone in this room to please turn off their BlackBerrys or set them to vibrate. We want to make sure there are no disturbances during our meeting. If you are receiving a call, please take it outside of this room. Thank you for your cooperation in this regard.

    Now to get back to the Canadian Human Rights Act, to help us with our review we have two witnesses as individuals, Mark Steyn and Ezra Levant. Welcome to both of you. You've probably been apprised of the process. Each of you has 10 minutes to present, and then we'll throw the floor open for questions by our committee members.

    Mr. Levant, perhaps you could start. You have 10 minutes.

    Thank you. I appreciate this invitation very much.

     I appreciate the fact that this is a multi-partisan committee, and I believe that freedom of speech, the rule of law, and checks and balances in quasi-judicial tribunals are not the property of any one party or, indeed, any one ideology. They're for anyone who believes in debate and discussion. I believe that freedom of speech is a Canadian value.

    I'd like to read some prepared remarks.

    Last month, section 13 of the Canadian Human Rights Act, the censorship provision, was declared unconstitutional. Athanasios Hadjis, the vice-chair of the Canadian Human Rights Tribunal, ruled that section violated the charter. He said the Canadian Human Rights Commission had become a bully. He called it “aggressive and confrontational”. In March, Edward Lustig, another tribunal member, ruled that the commission's conduct was “disturbing and disappointing”. He said he would follow Mr. Hadjis' lead on the question of its constitutionality. Mr. Hadjis is the past president of a large multicultural organization in Montreal and he was appointed to the tribunal by Prime Minister Chrétien. Mr. Lustig was appointed by Prime Minister Harper.

    So that's the state of affairs today. Conservative and Liberal members of the tribunal agree. The commission is out of control. The tribunal will not enforce this illegal law. They've concluded that the commission is abusing our human rights, like freedom of speech.

    So how did things get off the rails? To understand what the commission does, we have to understand what it doesn't do. It doesn't help minorities. It doesn't help immigrants or gays. In fact, all but two of the commission's censorship prosecutions in the past decade have been launched by the same one individual, a privileged white male lawyer right here in Ottawa named Richard Warman. He was actually a commission employee and he started filing censorship complaints while he worked there, and his co-workers would investigate his complaints. Needless to say, he won them all and he was awarded tens of thousands of dollars tax-free. When Mr. Warman left the commission five years ago and went to work for the Department of National Defence, he continued to file complaints. Even though he no longer works for the commission, they still pay his expenses: travel, hotels, parking, meals, and even an honorarium. The commission doesn't pay anyone else in Canada to file complaints. Section 13 really is Richard Warman's personal law. Without him, there would be no prosecutions. In itself, that raises questions like conflict of interest and abuse of office and malicious prosecution.

    But that's not why Mr. Hadjis or Mr. Lustig rejected section 13. As I mentioned, they called the commission “disturbing”, “disappointing”, “aggressive”, and “confrontational”. I'll give you examples of that conduct now. I think it will shock you.

    I couldn't believe it myself at first, so I would be happy to provide documentary evidence for what I'm about to say, almost all of which comes from sworn testimony of commission staff themselves. Here goes: Mr. Warman does something I don't think Canadians expect a government employee to do. For nearly 10 years he's been a member of a neo-Nazi group called Stormfront and another neo-Nazi group called Vanguard and another called the Canadian Heritage Alliance. He actually fills out membership forms, then goes online to their websites and writes bigoted, hateful things, like gays are a “cancer” on society, or that white police should be loyal to “their race”, or that Jews like your colleague, Irwin Cotler, are “scum”.

    Seriously, he did this as a commission employee. He wrote hundreds of bigoted messages like that. He convinced other commission staff to do the same thing. At least seven staff have membership privileges in Nazi organizations. Last year, commission investigator Dean Stacey admitted, under oath, that he was one of them. He fingered his two assistants and Sandy Kozak and Giacomo Vigna and their manager, John Chamberlin, too. They all have access to neo-Nazi membership accounts.

    Several years ago, Mr. Warman, Mr. Vigna, and Mr. Stacey sat down at a commission computer together and logged into a neo-Nazi website using their membership. But to cover their tracks they hacked into a wireless Internet account of a private citizen named Nelly Hechme so they couldn't be traced back to the commission. Bell Canada's security officer testified to this fact, and the RCMP investigated this hacking for months. The status of the investigation is officially “unsolved”, but the commission remains the only suspect.

     I could go on. I could mention the lack of a written ethics code: that Ms. Kozak of the commission was hired after she was drummed out of a police force for corruption; that the commission illegally borrows material from police evidence lockers without a search warrant; that Mr. Stacey boasts this kind of behaviour doesn't break any rules at the commission because there are no rules to break. And instead of cleaning up this filthy, bigoted mess, the chief of the commission appointed by the Conservatives, Jennifer Lynch, defends this conduct and attacks anyone who criticizes it.

    Section 13 was thrown out not just because censorship is un-Canadian, illiberal, and a violation of our charter, it was thrown out because the commission itself has become a threat to our human rights and both the Liberal and Conservative tribunal members refuse to let that go on one minute longer. I hope this committee will be united in their revulsion to what I just reported. I can talk about this in the media or on my blog, and so can Mr. Steyn, but only the people in this room and this building can actually put a stop to it.

    Thank you. I now look forward to your questions.

    Thank you, Mr. Levant.

    We'll move on to Mr. Steyn. You have ten minutes to present.

    I want to second what Ezra Levant has said. Something has gone badly wrong in the Canadian state's conception of human rights. Until last month section 13 had a 100% conviction rate. Even Saddam Hussein and Kim Jong-il understood that you don't want to make the racket look too obvious.

    Under section 13, citizens are subject to lifetime speech bans--not in the Soviet Union, not in Saudi Arabia, but in Canada. Section 13 prosecutes not crimes but pre-crimes, crimes that have not yet taken place. The phrase “pre-crime”, by the way, comes from a dystopian science fiction story written by Philip K. Dick in 1956. Half a century later, in one of the oldest, most stable democratic societies on the planet, we're living it. Until Maclean's magazine and I intervened last year, the section 13 trial of Marc Lemire was due to be held in secret—secret trials, not in Beijing or Tehran, but here in Ottawa. It is not the job of either Maclean's magazine or me to demand that in this country trials cannot be held in secret. That is the job of you and your colleagues and this Parliament.

    Section 13 is at odds with this country's entire legal inheritance, stretching back to Magna Carta. Back then, if you recall--in 1215--human rights meant that the king could be restrained by his subjects. Eight hundred years later, Canada's pseudo-human rights apparatchiks of the commission have entirely inverted that proposition, and human rights now means that the subjects get restrained by the crown in the cause of so-called collective rights that can be regulated only by the state.

    I would like to cite an eminent scholar in the field:

    Those are the words of the leader of the Liberal Party of Canada, Michael Ignatieff, in his thoughtful book, Human Rights as Politics and Idolatry. I wholeheartedly agree with Mr. Ignatieff that freedom of speech is the bedrock through which all others are secured, and I reject the Human Rights Commission's assault on it.

    Section 13 is deeply destructive. There are some 33 million people in Canada, yet as Ezra pointed out, one individual citizen has his name on every section 13 prosecution since 2002. I'm sure some of you are familiar with Matthew Hopkins, who in 1645 appointed himself England's witch-finder general and went around the country hunting down witches and turning them in for the price of one pound per witch. In 2002 Richard Warman appointed himself Canada's hate-finder general and went around the Internet hunting down so-called haters and turning them in for lucrative tax-free sums amounting to many thousands of dollars. Hate-finder Warman and his enablers at the commission abused the extremely narrow constitutional approval given to section 13 by the Supreme Court in the Taylor decision and instead turned it into a personal inquisition for himself and his pals.

    Abolish section 13, and life in Canada would be affected not one jot, except that Mr. Warman, Dean Stacey, and the other rogue civil servants would have to write their anti-Semitic, homophobic, racist website ravings on their own dime.

    Let me take the most recent example of a section 13 conviction. The sole charge on which Marc Lemire was found guilty a month ago was for a post that appeared at his website, written by somebody else. That piece was read by a grand total of just eight people in the whole of Canada, which works out to 0.8 of a Canadian per province, or if you include territories, 0.6153 of a Canadian. And almost all those 0.6153s of a Canadian going to this website and reading this piece were Richard Warman and his fellow dress-up Nazis at the Human Rights Commission, salivating at the prospect of having found another witch to provide more bounty.

    In other words, no one in Canada saw this post. No one in Canada read it. Nothing could be less “likely to expose” anyone to hatred or contempt than an unread post at an unread website. Yet Canadian taxpayers paid for Jennifer Lynch and the Nazi fetishists at the commission to investigate this unread bit of nothing for six years.

     In the course of securing this itsy-bitsy single conviction, these psychologically disturbed employees of the Human Rights Commission wrote and distributed far more hate speech of their own. As the recent rulings of Judge Lustig and Judge Hadjis confirm, there is no justification for what Richard Warman and the CHRC did.

    This is the sad truth about this disgusting agency at the beginning of the 21st century. There would be less hate speech in Canada--less hate speech--if taxpayers did not have to pay CHRC employees to go around writing it and publishing it.

    Sometimes institutions do things that are so atrocious they cannot be reformed. They can only have the relevant powers removed, as happened to the RCMP in intelligence matters, or be abolished outright, as happened to a Canadian regiment not so long ago. The Canadian Human Rights Commission should not be more insulated from accountability and responsibility for its actions than the Royal Canadian Mounted Police or the Canadian Forces.

    I call on this Parliament to assert its oversight role and to compel a full inquiry into the commission, its investigators, their membership of Nazi websites, their conflicts of interest, their contamination of evidence, and their relationship with Richard Warman.

    Section 13's underlying philosophy is incompatible with a free society. Its effect is entirely irrelevant to the queen's peace, and its use by agents of the Canadian Human Rights Commission has been corrupted and diseased beyond salvation. It is time for the people's representatives in the House of Commons to defend real human rights and end this grotesque spectacle.

    Thank you.

    Thank you.

    We'll open the floor to questions.

    The first questioner will be Mr. Murphy. You have seven minutes.

    Thank you, Mr. Chair.

    Thank you, witnesses.

    I'm going to give my questioning in memory of Gordon Fairweather, who was a great New Brunswick parliamentarian and the first head of the Canadian Human Rights Commission. He held his seat as a Tory.

    I'm saying good things about a Conservative, so we're starting off very well.

    Really, I thought today we would have a debate on the concerns about procedure, equality, and fairness versus substantive law--that is, usually something everybody can agree on as egregious, and an act that should be impugned. But I think you have raised mostly, in your 20 minutes, procedural matters, the far-reaching hand of the state, the inequality. Those are all very legitimate concerns, if proven.

    I will tell you that it's probably somebody's job to disprove some of the things, Mr. Levant, that you might say, I think particularly with respect to the allegation of hijacking a person's identity, on page 38 of your book. I think if you said that about an individual you'd be sued for liable, probably successfully.

    But that's not why we're here. I think we're here to discuss the broader issue of whether what is impugned is wrong, and whether, as Canadians, we believe what Justice Dickson said at the Supreme Court of Canada when he decided that section 13 was a valid constitutional part of our law.

    I guess what I'd like to ask you is whether you at least agree that the Canadian Criminal Code provisions are being appropriately administered and whether there is in fact some curb on free speech. The fundamental question is whether you believe there are curbs on free speech when free speech gets into the realm of hate speech, extreme speech, speech that is meant to, in the words of the late Justice Dickson, reduce people so that no one finds “redeeming qualities” in them; and hatred is “a set of emotions and feelings which involve extreme ill will towards another person or group of persons”. As he said, “To say that one 'hates' another means in effect that one finds no redeeming qualities in the latter.”

     The cases dealt with by the tribunal are issues about the “Jewish lobby”; and the words spoken were, “that lied to us about Hitler”. I won't go on. I don't think we need to hear the atrocious statements made. But they shocked the conscience of people, and they go beyond freedom of speech. They're covered, in some cases, by the Criminal Code.

    Do you believe at least in the Criminal Code provisions on hate speech? And don't you think there are limits?

    Finally, you know that the Criminal Code requires proof beyond a reasonable doubt, which is more difficult than on a balance of probabilities. You also know that the Criminal Code has punitive provisions involving jail, etc., whereas in administrative tribunals the sentences meted out are minor in terms of finances.

    Let's not truck with the administrative procedural aspects. Let's get to the heart of it. The question is simple: are there limits on free speech in this country of Canada?

     Of course there are limits to free speech. For example, the laws against fraud are a limit to free speech, the laws against forgery, and the laws about copyright. We accept these. Uttering a death threat has been in our Criminal Code for centuries.

    In all of these instances, though, speech is incidental. The substance of what is legislated is an actual crime, a harm, or a violence. But having hate speech in our Human Rights Act turns the ideas and the words themselves into a crime.

    You say the punishments are light. I put it to you that a lifetime publication ban, $40,000 worth of penalties and fines, and no legal aid are not light, especially for the people who are caught in that system, with no legal aid allowed.

    But you outline some of the differences between the Criminal Code and the Human Rights Act. Under the Criminal Code, if you're too poor to afford a lawyer, you will be given one, whereas more than 90% of the people before the Human Rights Commission are too poor to have a lawyer. In the Criminal Code, there is “beyond a reasonable doubt”; not so in the Human Rights Commission. In the Criminal Code, truth is a defence; not so in the Human Rights Commission. In the Criminal Code, honest belief is a defence; not so in the Human Rights Commission. In the Criminal Code, we have procedural checks and balances; the police have to live up to an ethics code, there's an internal affairs organization and you can't entrap people. But that's not so in the Human Rights Commission. These procedural differences, sir, are not a trifle; they are the petri dish in which these terrible things have happened.

    Let me close by remarking on the Dickson decision you referred to. In 1990 the Supreme Court, in a narrow four-three ruling, said this law was acceptable. But here's the difference between then and now: back then the law, according to Dickson, would be targeted only at “evil” ideas. Now they're targeted at publishers who publish cartoons or at columnists who have something to say about radical Islam. So it has strayed into politics, which is what Chief Justice Dickson said would never happen—but it has.

    Point two, the huge punitive fines, the aggressive behaviour, the entrapment were never imagined by Justice Dickson back then.

    And number three, Canada has moved more towards freedom of speech. The dissenting opinion in 1990 was written by Justice Beverley McLachlin. She is now our Chief Justice.

    I put it to you that even Justice Dickson would now abolish this law because it would offend him, let alone a 2009 court that is embracing freedom of speech.

    Thank you for letting me answer that at some length.

    I would just add to that last point that Justice Dickson, in that decision, had a very narrow definition of section 13. There is nothing in there to indicate that he thought Maclean's magazine, the oldest and best selling magazine in Canada, would come under section 13 for choosing to publish particular articles.

    I would also add that the words you quoted—and I assume you have worse ones there—which I think were, “the Jewish lobby” and then something about Hitler, are offensive. Because I was a supporter of President Bush's foreign policy, I woke up every morning for years being accused of being part of the Jewish lobby that is “controlling” American foreign policy. Do I think I should have the right to make it illegal for someone to accuse me of being part of the Jewish lobby? No. Do I think it should be illegal to champion repellant ideas? No. Repellant ideas wither in sunlight, and you cannot have true sunlight if you accept the right of the state to regulate public discourse.

    Ian Fine, the senior counsel of the CHRC, has declared that the commission is committed to the abolition of hatred—not hate crimes, not hate speech, but hate. Hate is a human emotion; it beats, to one degree or another, in every breast. It is part of what it means to be human. I sometimes get the impression from her public remarks that deep down, even Jennifer Lynch, head of the commission, harbours a teensy-weensy little bit of hatred for Ezra and me.

    There is absolutely no alternative to that. To hate is to be free, and when the alternative is a coercive government bureaucracy regulating what you can say, then as Michael Ignatieff would be the first to point out, you are no longer free. I am with Mr. Ignatieff on that.

    Thank you.

    We're going to move on to Monsieur Ménard. You have seven minutes.

    Thank you, Mr. Chair.

    To make sure I understand what you have just asked us, I need you to explain a few things. At the beginning of your presentation, you talked about a ruling: two people had declared section 13 unconstitutional. Were those two people members of a tribunal?

    Yes, sir.

    Which tribunal?

    The Canadian Human Rights Tribunal is the federal tribunal, a quasi-judicial tribunal, that hears the cases brought to it by the Canadian Human Rights Commission.

    That's what I thought. But I had always believed that, since the charter, only a judge could declare a provision of law unconstitutional, not an administrative tribunal. My wife was on an administrative tribunal, so I know a little bit about it.

    That's an excellent distinction you make, sir. These two--

    It was not me.

    No, but you're burrowing down into the important details here.

    These two tribunal members have declared it. Now, they have not struck anything down, for they lack the power you refer to, but they both have essentially said they are so offended by this law that they shall not give it any credence. And so both Mr. Lustig and Mr. Hadjis—and since he's the vice-chair, I think the rest will follow him—will simply refuse to implement this law, and they're throwing it back to you, sir. They're throwing it back to you because it's so illegal. They can't make the changes, but maybe you can.

    I was not wrong in thinking that they did not have the authority to declare a provision unconstitutional. I was going to ask you what the Attorney General's position was on this. After all, when you want to have a provision of law declared unconstitutional, you have to give notice to the Attorney General. And in this case, no notice was given to the Attorney General.

    I would like to know what you want. Sometimes, I get the sense that you want section 13 abolished, but other times, you seem to be saying that the problem is not really section 13 but the fact that people at the commission acted in a manner you consider scandalous, illegal and so forth.

    What other reasons do you have for abolishing section 13? Are you claiming that, if those people had acted in good faith and if the employees of the commission had not made all the mistakes you mentioned, section 13 should stay in the act?

    No, not at all. As I indicated, section 13 is appallingly written. The key word in there is “likely”, “likely to expose” someone to hatred or contempt. That is not a legal concept as it's currently understood by the human rights enforcers. They have a big list of what they call jurisprudence on their website, in which they essentially now define “likely to expose” as entirely unlikely to expose. The narrow approval Justice Dickson gave to section 13 has been completely transformed. So that is why we need not just an investigation into the conduct of the commission but the abolition of section 13, because it is so poorly drafted that ambitious and opportunistic employees of the commission have been able to drive a coach and horses through the Supreme Court's interpretation of it.

    May I supplement for 30 seconds, sir?

    Mr. Murphy also suggested that the Criminal Code prohibitions against hate propaganda are enough. And though a pure libertarian would be opposed to even that, I think a very practical, doable thing for this committee and for Parliament would be to repeal section 13 of the Human Rights Act altogether, to leave any hate speech prosecutions to the Criminal Code, with its proper checks and balances, and frankly, to bring in the forensic audit to the Human Rights Commission to examine the allegations I have made.

    In answer to Mr. Murphy's suggestion, my book has not been the subject of any litigation. My facts remain undisputed.

    Who should conduct this forensic audit?

    I think it should be, at the very least, the Auditor General. I think it may require some forensic work on the Internet side. Of course, I would like a judicial inquiry, but I don't think that's practical.

    You said that the Auditor General should conduct the audit, but have you asked her to do so?

    I have not done so, but I'll take your suggestion and do that immediately.

    That is not my suggestion. I am trying to understand your position. Listening to you, I sometimes get the sense that you are asking us to conduct the audit.

     Let me say this. The facts I outlined in my opening remarks are already documented. Most of them are from sworn court testimony from Human Rights Commission staff, so we already have the material. We could have it confirmed by the Auditor General, but at the end of the day, Monsieur Ménard, it comes down to you and the others here to do something with the information. If the Auditor General confirms what I've put to you, who will then act? We can wait for the Supreme Court, but I prefer that our legislatures take the initiative.

    I understand perfectly. I can see this is important to you. I get the impression that you do not think the legislation is bad per se but that you are angry with certain individuals for what they did.

    No, both of us have a principled objection to section 13 and are principled defenders of freedom of speech, so I have a philosophical objection to section 13. I have always had a philosophical objection to section 13, even at the time of the Supreme Court Taylor decision. However, what I did not know at the time was that it was not just bad in theory, but it was wholly corrupt in practice. That is why I think section 13 needs to be repealed, both because it has been wicked in practice, but also because it is poorly conceived as a matter of theory.

    All right, we're going to have to cut you off there and move on to the next questioner.

    Mr. Comartin, you have seven minutes.

    Thank you, Mr. Chair.

    I think I, like everybody sitting at this table, am at some disadvantage, Mr. Levant and Mr. Steyn, in terms of the accusations you're making against members of the commission and their staff. In that light, because this investigation or study by this committee will go on for some time, would you be willing to come back at some point in the future when we have heard the other side?

    Absolutely. In fact, Mr. Comartin, if you want documentary evidence, I would be happy to send you documentary evidence testifying to every fact I put forward, all of which is either commission documents obtained through access to information or sworn testimony before the tribunal itself by commission staff.

    I must tell you that when I first encountered these facts, I was so shocked by them that I simply refused to believe them: that the Human Rights Commission itself was the largest propagandist of anti-Semitic material in Canada. I didn't believe it. I thought I had encountered some conspiracy theory. I painstakingly reviewed thousands of pages of testimony, and I can't believe what I found. I think you'll go through that same awful revelation when you see the facts.

    Mr. Levant, what you have to do is send it to the clerk of this committee.

    I'll do so.

    Mr. Steyn, would you also be willing to come back?

    Yes. I share the same concerns as Ezra. I happened to be reviewing a routine e-mail in the middle of the night, and I couldn't believe that the so-called Human Rights Tribunal had approved the so-called Human Rights Commission's wish to hold a trial in secret at which the accused--never mind not being able to confront his accuser in open court--would in fact be entirely excluded from the courtroom. Both of us were shocked when we discovered what was going on, and that is part of the reason we are here today.

    I'm not going to let this go. I don't believe secret trials have any place in this country, except in the most extreme national security circumstances, and even then, that's debatable. But they certainly have no place over so-called hate speech or pre-crime. It's a disgrace; it shames this country, and you as the parliamentary oversight for the commission and the tribunal should do something about that.

    I get to decide what I do, at least as a parliamentarian, Mr. Steyn.

    With regards to the principle of a legislated body, short of criminal legislation, whether it be in the Human Rights Commission or in some other legislation, you're both totally opposed to that. You're satisfied to leave the hate crime within the hate propaganda section of the code, but nothing further than that. Is that the position of both of you?

    I don't want to lay too much of a trap here. Let me throw this at you: the German situation. Germany has passed legislation that actually makes it a crime. Let's say we don't go that far. As a country we're going to say that it is hate literature, hate propaganda, hate speech if you deny the Holocaust, just because that is damaging to the Jewish community per se. Let me say we're going to do that for the Holocaust and we may do it for some of the other well-known genocides, be it Rwanda and the more recent ones, or go back to the Armenian-Turkish one, those kinds. We may pass a law to say that is hate speech and you're not allowed to say that in this country.

    Would you be willing to support that kind of legislation?

    I'm Jewish myself. I affiliate and recognize as a Jew. Obviously the Holocaust is something that's very sensitive to Jews and others, and yet I agree with the Berlin Jewish community, which last month announced that it supported the publication of Mein Kampf. Why would the Jewish community of Berlin support the publication of Mein Kampf? To teach people about the horror of the Holocaust.

     Mr. Comartin, you and I are from a generation where we knew about it, but what about an 18-year-old today who knows nothing about the Holocaust? We need to teach why it's wrong. We need to expose these ideas to the new generation.

     From a practical point of view, sir, trying to ban ideas in the age of the Internet won't work. All it will do is attach glamour—oh, those ideas are so exciting and sexy that the government wants to ban them. People will want to find out what they're about. You will glamorize it. David Ahenakew uttered some ridiculous comment about the Holocaust. Instead of it dying in a conference with 100 people snickering at him, he became a national celebrity. If you google his name, you'll have 20,000 hits, because he was turned into a star and, at the end of the day, acquitted.

    I'll close by telling you three reasons why hate speech is better to be out in the open rather than in private. This was said by Gilles Marchildon, the head of Egale, the gay rights lobby. He was asked why he didn't want to ban anti-gay speech, even the most vicious kind. He gave three reasons why he was for freedom of speech.

    One, he wanted to know who the bad guys were so he could isolate them and argue against them.

    Two, he wanted what he called a teachable moment—look people, we just saw an act of bigotry; let's re-educate people on why that was wrong.

    Three, which I think may be the most important, he did not want to out-source his civic duty to some bureaucracy. If he saw an act of anti-gay bigotry, he thought it was important for everyone to personally write a letter to the editor or tell someone that we don't tell jokes like that, rather than calling 911 and having a six-year prosecution.

    I must say, Mr. Levant, that the argument in theory makes sense, but the reality is that it didn't do anything to let Mein Kampf be published or spread around the globe. It didn't stop Hitler from coming to power. It didn't stop him from perpetuating the atrocity of the Holocaust.

    There are some basic arguments on the other side of that, as Mr. Steyn said earlier, as to whether in fact, by exposing it to the light and allowing debate on it, that in fact has the desired effect. But it also has the effect of perpetuating those kinds of slanderous, malicious, and vicious comments.

     That analysis sounds as if it ought to be right, that there are some things so terrible that you can't let them sit out there. But the problem with it is that the Weimar Republic--Germany for the 12 years before the Nazi Party came to power--had its own version of section 13 and equivalent laws. It was very much a kind of proto-Canada in its hate speech laws.

    The Nazi Party had 200 prosecutions brought against it for anti-Semitic speech. At one point the State of Bavaria issued an order banning Hitler from giving public speeches. But all it did, as Ezra said, was glamorize him and make him a hero: “What is he saying that is so dangerous the state won't permit him to say it?” If Hitler came back today--I don't know where he is; he's 128 years old and living in the South American jungles, or wherever--but if he came back today he would laugh his head off at the anti-Holocaust denial laws in Europe, because it would show that his ideas were still powerful and dangerous.

    The lesson we should learn from Germany is that for the 12 years before Hitler came to power it had all the hate-speech laws and section 13 laws in the world, but they did nothing but glamorize Adolf Hitler and the Nazis and facilitate his rise to power.

    Thank you. We're out of time.

    We'll move to Mr. Moore for seven minutes.

    Thank you, Mr. Chair, and thank you both for being here with us today, for your testimony, and for some of the discussion we've had.

    So far no one has touched on Professor Moon's report. This might be unfair, but I assume both of you are somewhat familiar with it. Can you comment a bit on his findings, his rationale, and how you feel this committee should approach his findings?

    Professor Moon is a professor at the University of Windsor who was paid $52,000 to write a 45-page report by the Human Rights Commission. He shocked them by calling for the repeal of section 13. Even though the commission hand-picked him and paid him more than $1,000 a page, he said we should repeal this law. That was stunning, because it showed that even people deep within the human rights industry are very uncomfortable with political censorship.

    He had other recommendations in his report that are outside the scope of our review today, but for someone hand-picked by the committee to say we're doing something wrong was a real warning light.

     I think he found himself in the same position as everybody who looks at this dispassionately. Professor Moon is certainly no fan or friend of either of us, but he found that, as a fair-minded man, when you look at section 13 in the cold light of day it's completely indefensible.

    He also made the point that it is unworkable in the age of the Internet, unless Canada is prepared to take the kinds of actions China does with websites. You simply cannot enforce this law in the modern age. You get what is always the worst aspect of tyranny--a kind of capricious tyranny that just alights on certain easy targets and ignores far more problematic ones. For that reason, Richard Moon concluded that whatever his own feelings about a lot of the speech out there, section 13 only made the situation worse.

    I think both of you have touched on this a bit, but on the provisions that exist today in the Criminal Code of Canada about hate speech, people hear of human rights commissions, tribunals, and trials. How does what's in the Criminal Code mesh with our human rights legislation? What's the difference between someone going through a trial under the Criminal Code after criminal charges have been brought against them versus...? You've both had brushes, to one degree or another, with human rights commissions, so what's the big difference or differences?

    Well, there are so many differences--for example, the right to a speedy trial. If you're charged with a crime, you have a right to a speedy trial. In my case I went through a 900-day investigation and I didn't even get to a hearing. Marc Lemire went through a six-year hearing. Accused publishers don't have the same rights as accused murders.

    Another difference is search and seizure without warrant. I'm speaking for the moment about the provincial act under which I was charged. The human rights officers have the right, without a warrant, to come into my office and take anything--my hard drive, my documents. Again, accused criminals have rights that I don't have.

    In answer to Monsieur Ménard's point, I focused on some of these rules of law and procedural unfairnesses because I had hoped to appeal to people on this committee who might have some sympathy to censorship, that even they would be appalled by the practice of censorship. I would hope that everyone is against censorship, but even if there is a censor on the committee, I hope they would understand that the brutal enforcement of this law is another source that brings the administration of justice into disrepute.

    I mentioned no legal aid. The disclosure practices would be laughed out of court. There is the entrapment. There are so many flaws that you don't have to be a lawyer to know something is wrong.

    The tribunal members, very bravely, have said that enough is enough. They're throwing it out there for someone else to fix. I don't want to wait 10 years for this to go to the Supreme Court; I think this Parliament can fix it now.

    I'd like to add what I think the biggest difference is, and that is that the truth is no defence. You can make a statement, every aspect of which is factually accurate, and if certain people decide they're going to be offended by it the factual accuracy is irrelevant.

    In the triple jeopardy I underwent in the Maclean's case, I had quoted a Norwegian imam. I had quoted him entirely accurately. He had been quoted in Norwegian and other European newspapers. Yet because somebody took offence to it from reading my quotation in Maclean's, that became the cause for three human rights complaints.

    There is something outrageous in that. Section 13 allows aggrieved people effectively to define their own reality and eliminate what ought to be the bedrock of any justice system, that truth is the ultimate defence. I think that's the worst aspect of section 13, the commission, and the tribunal.

    Do I have time, Chair?

    You have one minute, so make it short.

    Mr. Levant, you mentioned 900 days. Obviously you are two individuals who are both smart and articulate. I'm not sure that everyone who gets caught up in these cases would have those benefits. But with respect to a 900-day hearing, what kind of impact did that have on your ability to put food on the table? You said there's no legal aid. I assume financially you're not getting any help, at least from government, so practically speaking, how does that work?

    That's right. And of course Richard Warman is paid to file complaints and he receives awards of tens of thousands of dollars.

    My legal fees and those of the magazine amounted to about $100,000. Since I won and I was acquitted, if I had been sued in civil court I would have had my costs reimbursed. That's not the case with human rights commissions. If I had been charged under a criminal court, I would have had legal aid. The process has become the punishment.

    Again I say to Mr. Ménard, I despise the censorship because I believe Canadians are free people. But putting that tremendous issue aside, the process here brings the administration of justice into disrepute.

    The reason I was acquitted and he was acquitted, frankly, is that we're noisier, more articulate, more politically connected, and we're able to raise funds. But until we came along, no one had ever been acquitted, because they were beneath the law. They had no money. They were not articulate. Ninety-plus per cent of them couldn't afford a lawyer, and no lawyer was given to them. No one should be above the law in Canada, but no one should be below the law.

    I think, as Mark Steyn alluded to, this whole thing has to be thrown out because it has been corrupted all the way through. The Criminal Code protects truth and honest belief as a defence; this human rights commission does not.

    I'm going to have to stop you there.

    Mr. Dosanjh, I believe you're next. You have five minutes.

    Thank you.

    I'm going to ask very brief questions and I would ask you respond to the questions rather than going into long remarks.

    It appears to me from your remarks so far that you believe there is absolutely no redeeming quality to section 13. There are organizations concerned with human rights that are not the Canadian Human Rights Commission that believe it should be narrowed, rewritten, appropriately constrained, but you don't believe that can be done. Am I right or wrong?

    I don't believe it can be reformed, and I'm joined by Egale, PEN Canada, the Canadian Association of Journalists, the Canadian Civil Liberties Association, and every newspaper board in this country.

    You believe there should be nothing between absolute free speech and the Criminal Code provisions.

    Nothing legally, but there should be the power of peer pressure and political pressure.

    I'm talking about law, not peer pressure.

     There should be no law, sir. No.

    I get your point.

    Let me tell you that there are some people who believe that even the hate speech law needs to be rewritten, perhaps broadened, perhaps narrowed. There are different views on that.

    In terms of that particular provision, let me remind you of what Keegstra said. Keegstra basically was a high school teacher who taught there was a worldwide Jewish conspiracy. He described Jews to his people as treacherous, subversive, sadistic, money loving, power hungry, child killers, and several other things. He was convicted of a hate crime under our Criminal Code.

    It appears to me from what you have said that this kind of language and those kinds of things are okay to say.

    No. Is it okay to say? I'm a Jew who is absolutely opposed to anti-Semitism, but I fear, much more than some buffoon ranting, a state so powerful that it can tell me what I can feel or not.

    He is using those words and that speech. Are you suggesting that he was appropriately convicted?

    He should have been fired from that school immediately.

    But not convicted.

    Not convicted of a crime. He was turned from a nothing nobody auto mechanic and teacher into an international celebrity, and thousands of people heard him.

    I take it from that you don't actually believe in the Canadian Criminal Code provisions either.

    I believe in equality before the law. The problem with these kinds of cases is that if you have a professional department of human rights enforcers, they go after the easy targets. There's an imam in Montreal who has said far worse things than Mr. Keegstra, but because that is multiculturally complicated--

    It's politically correct.

    Yes, and I believe a complaint to the Quebec Human Rights Commission was rejected, whereas some nothing twerp like Keegstra is easy to go after.

     Equality before the law means it makes no difference. If you run a red light and you run over Keegstra or you run over Nelson Mandela, it should make no difference in law. The trouble with an enforcement regime is that it picks and chooses.

    Mr. Steyn, do you believe Keegstra was appropriately prosecuted and convicted?

    I agree with Ezra in that I prefer a social disapproval, activist parents, or a school board firing to a law restricting what individuals can say and think. I would certainly support the school board firing him. I would certainly support the parent-teacher association refusing to let their children be taught by him. But I think we stray into very dangerous territory when we attempt, in effect, to ban certain words.

    I wholeheartedly disagree with you on that, but we'll leave it at that.

    But you got the answer.

    Yes, I did, and I thank you for it.

    But here we're talking about section 13, and we're not talking about the Criminal Code--

    No, I was talking about the Canadian Criminal Code provisions very specifically.

    Thank you.

    We'll move on to Monsieur Lemay.

    I listened to the discussion carefully. I must admit that I had a little trouble following you.

    Did you read the decision in Taylor, the report from 1990 in which the Supreme Court....

    Yes.

    ...rules on section 13?

    You read it?

    Yes.

    Do you agree with the Supreme Court's ruling?

    I disagree with it, monsieur.

    You have a problem. You may disagree with the Supreme Court's ruling, but, unfortunately for you, we are bound by it. The Supreme Court interpreted section 13, and that is precisely the provision you object to. There are two options: either we amend it or we abolish it.

    Yes, but as the tribunal judges both recently concluded, the very narrow approval to section 13 given by Chief Justice Dickson is not what's going on at the moment.

    Now, I disagreed with that Supreme Court decision at the time because it seemed perfectly obvious to me that, just in the way of things, it would expand, and what he claimed was the very narrow, specific approval that he gave the Canadian state to restrict speech.... Eventually all these other barnacles encrust to it, and the thing expands. I don't believe Justice Dickson would support that ruling today.

    We will not speak for the Honourable Justice Dixon. But when the Supreme Court ruled on section 13, it stated that there was also—and this is what I am getting at—paragraph 2(d) of the Canadian Charter of Rights and Freedoms, which is extremely important. Should we also abolish that paragraph?

    May I distinguish the current state of affairs--

    I hope so.

    --from what Chief Justice Dickson saw 19 years ago. These distinctions were outlined by the recent tribunal ruling by Mr. Hadjis. The first distinction is that 19 years ago the Canadian Human Rights Commission did not have its current punitive powers. Now it can levy enormous fines. So it has taken on a character almost like that of a police or criminal matter.

    The second distinction was that the commission, which was designed to be a conciliatory, mediating organization, has become “aggressive and relentless”. It doesn't care about mediating. It's an attack organization. These are two differences in the commission today.

    The third, sir, is that it has become manifestly political.

    I have a big problem. We have the Supreme Court's decision and we have section 2 of the Canadian Charter of Rights and Freedoms for as long as it respects section 1 of the charter.

    As for section 319 of the Criminal Code, I referred to it when arguing cases; it is very broad. You must not agree with section 319. Should we abolish it, as well?

    No, sir, and here's why I would politely disagree with you.

    The procedural limits on section 319 include approval by the Attorney General for prosecution. That's just one small example. You would have to have a political sign-off at the highest level so it would never tolerate one man gaming the system, as Richard Warman has done.

    The second thing is that all the legal defences in section 319 in the Criminal Code that are not in the Human Rights Commission and all the checks and balances on the prosecution. If a police force conducted itself the same way as this commission has done, police chiefs would be fired.

    Our role is not to investigate someone who may not have done their job properly; that is the minister's job, and he will do it. Our role is to determine whether section 13 should still be included in the Canadian Human Rights Act, and that is what I want to do. My first reflex is not to think that we should abolish section 13 because so-and-so did not do his job properly. That is where I have issues.

    Ezra made the fundamental point that even if you have broadly written language there are the traditional protections the defendant has when he is called into a criminal court. There is a reason why section 13 is attractive essentially to politically motivated ideological crusaders. That is because the defendant does not enjoy the traditional protections of the Criminal Code. He does not enjoy the right to confront his accuser in open court. His accuser has the prosecution paid for. The balance between the judge, the jury, and the prosecution under the tribunal system is completely wrecked. Until they had a falling out, thanks in part to Ezra and me in recent weeks, the tribunal was essentially the house pet of the commission. No matter what our problem may be with section 319 of the Criminal Code, it is still better to have a broadly written section of the Criminal Code than something such as section 13, which is appallingly written but also offers the defendant none of the traditional protections.

    Thank you.

    I'm going to allow one more question.

    Mr. Rathgeber, you have five minutes.

    Thank you, Mr. Chair.

    Thank you both, Mr. Levant and Mr. Steyn, for your very enlightening comments regarding this problematic issue.

    I must say at the outset that I disagree with my friend Mr. Lemay's reading of the 1990 decision of the Supreme Court in Taylor. It is my understanding that the majority, although they upheld it, did state that section 13 ought to be narrow and confined to extremely hateful messages. As I see it, we've seen in the post-Internet era that this has been interpreted rather liberally, and I think you would agree with that.

    But on my question, I mean, we have to find some balance between freedom of expression and the protection of human rights--or what I prefer to call civil rights. I was struck by Professor Moon's report when he indicated that, in his view, censorship ought to be “confined to a narrow category of extreme expression--that which threatens, advocates or justifies violence against the members of an identifiable group”.

    Short of condoning, justifying, or inciting violence, he appears to be an advocate for freedom of expression, unqualified. I am assuming you're both going to agree with that, but I'd like that confirmation, please.

    Yes, and this answers Mr. Comartin's point. We've always had rules against violence. Even Hitler could not have prosecuted the Holocaust if he hadn't changed real civil rights. Hitler's language could not burn down a synagogue. Hitler's language could not send a Jew to the gas chambers.

     He had to change those laws to destroy the real civil rights of Jews. As for this counterfeit civil right not to be offended, that didn't hurt any Jews other than hurting their feelings. Hitler could not have prosecuted the Holocaust in 1933; he had to change the real laws.

    I care about protecting real laws against violence. We have them in our Criminal Code. For uttering death threats and actually inciting violence, it's there in the code. I say that in the interests of an open, vigorous, democratic society like Canada's, we should never criminalize mere emotions or feelings or words.

    I would agree with that. I wholeheartedly support laws against the incitement of violence, but what the human rights regime is doing now is criminalizing differences of opinion.

    There is a man in Saskatchewan who is under a lifetime speech ban. He cannot express an honest opinion about homosexuality and gay marriage. He happens to be opposed to gay marriage. The former Prime Minister of Canada, Monsieur Chrétien, only a few years ago was opposed to gay marriage. I think I was here in the year 2000 when the Liberal Party of Canada voted at its convention to oppose gay marriage. Something that was a perfectly legitimate point of view 10 years ago is now the occasion for a lifetime speech ban.

    There is a difference between criminalizing incitement to violence and simply criminalizing differences of opinion, and there's far too much of that going on under the human rights regime.

    Thank you.

    The last question I have is with respect to costs.

     Mr. Levant, I live in Alberta, as do you, and I'm well aware of your highly public dispute with the Alberta human rights commission, which cost you in excess of or close to $100,000 in legal fees. As you've said many times, the complainant didn't pay a dime for legal fees and had the investigation and the prosecution done by the taxpayers of Alberta.

     You're a lawyer. You know that in Alberta it costs $200 to file a statement of claim. As you indicated in a response to one of the members opposite, if you're unsuccessful in litigation, you end up paying at least party and party costs, and sometimes solicitor and client costs.

    Do you think there's any role for costs in this issue with regard to a deterrent to filing frivolous complaints? A person would have to be serious about bringing a complaint against an individual if there were a financial disincentive if they were unsuccessful.

    Well, listen, would that make this problem, instead of a 100% problem, just a 99% problem? Yes, it would, but that's such a trifle compared to the tyranny of this entire idea of censorship.

    If Richard Warman didn't have all his expenses paid, would he be less punitive in his approach? Maybe, but I've listed about 10 other procedural problems. I don't want to tinker with a rotten idea. Would it be better if someone had to pay two hundred bucks before putting me through a $100,000 gauntlet? Yes, maybe, but that is a band-aid. We need more than a band-aid. We need open heart surgery.

    I agree with what Ezra has said.

    There's a reason that the traditional protections of the common law arose over centuries. They were worked out as a balance to enable people to access the justice system in reasonable ways. It seems very attractive to think of a way that shortcuts all that to say, oh well, it's unfair if somebody has to go and see a real lawyer, write a cheque for a retainer, and take it to a real court; couldn't we do something that provides him with drive-through justice at no cost?

    No, you can't. There's a reason these protections arose over centuries: because they work.

    It is horrifying to me that we seem to think that in the role of opinion and speech, of all areas, that is the case for having this kind of drive-through justice system. It's not at all. If you're going to drag someone into court for their opinion, the least you can do is respect the traditional protections of the legal system and not get it short-tracked for you, and not get your tab picked up, as Richard Warman has had, for seven years now by the Canadian taxpayer.

    Thank you so much. We're at the end of our time.

    I want to thank both of you for appearing before us. You've heard that there may be a request for you to return to the committee. We will keep you informed.

    In the meantime, as per Mr. Comartin's request, if you could provide us with the supporting documentation, you can send it to the clerk, and we'll make sure it's distributed to each committee member.

    Thank you.

    Thank you.

    We'll suspend for five minutes.

    I call the meeting to order.

    We're reconvening the meeting of the justice committee. We'll now proceed to our ongoing review of Bill S-4, An Act to amend the Criminal Code (identity theft and related misconduct).

     We have before us as a witness Wendy Rinella, vice-president of the Title Insurance Industry Association of Canada.

     Welcome, Wendy, to our meeting. I think you understand the process. You'll have 10 minutes to make an opening statement, and then we'll allow members of the committee to ask questions.

    So please go ahead.

    Thank you very much, Mr. Chair, for the opportunity to appear before this committee.

    Our association is the Title Insurance Industry Association of Canada. We are federally regulated title insurance companies. The objects and purposes of our association are to promote the common interests and concerns of the title insurance industry in Canada, to provide information and education to its members and the public, to advocate for the betterment of and on behalf of the title insurance industry, and to maintain professional standards and ethics in the title insurance industry in Canada.

    Our association is supportive of Bill S-4 and the importance of strengthening the provisions related to identity theft and fraud. My comments here today are in no way meant to be interpreted as a lack of support for the bill, but rather as an attempt to strengthen provisions to deal with the devastating crime of title and mortgage fraud.

    Title insurance is a relatively new product in Canada, so I'm just going to give a little bit of background about it. It protects the holder of an interest in real property, either as an owner or as a lender, by indemnifying against loss that may be suffered if title is other than as stated in the policy. It includes a duty on us, the title insurers, to defend the insured’s interest in the title in addition to an indemnity coverage.

    As title insurers, we provide policies to all parties involved in a transaction, whether they be owners, borrowers, buyers, or lenders, and on both sides of the equation. Title insurers are on the front line of preventing mortgage and title fraud. We have accumulated expertise in detecting title and mortgage fraud, and this allows us to prevent fraudulent mortgages from being granted by Canadian financial institutions, which clouds the title of innocent homeowners and potentially leads to increased fraud claims in the public system.

    Let's talk about real estate fraud. It includes both title fraud and mortgage fraud. It's a sophisticated white collar crime that relies on knowledge of real estate conveyancing and mortgage lending professional practices. Typically, a fraudster targets a house, forges a transfer deed—that's the title fraud—registers the title to the property in his or her own name, forges a discharge of the existing mortgage, and borrows against the clear title—that's the mortgage fraud. In the event of identity theft, a victim faces financial losses, banking issues, and ruined credit history.

    We, as title insurers, estimate the average case of real estate title fraud in Canada to be in the range of $300,000. In comparison, the RCMP pegs the average credit card scam in Canada to be around $1,200. The impact of real estate fraud on the victim is extensive. It's not only loss of credit rating; they may lose access to their property, may be saddled with an unpaid mortgage, and may be facing litigation.

    I'm going to give you some real-life examples of what has happened to people in Canada. Some of you may be familiar with them.

    Snowbirds returning home are greeted by a new homeowner at their door—an innocent third party who's bought the home from a fraudulent conveyor.

     A landlord is faced with a new owner of his or her rental property when a tenant fraudulently conveys that property.

    The spouse maintaining the home in a divorce finds a foreclosure sign on the lawn because the former spouse has taken out a new mortgage with the assistance of an impersonator, usually a new boyfriend or girlfriend or a family member. This is very common.

     A child with the same name as a parent mortgages the parent’s property and absconds with the money. One of our companies is in the midst of litigation over this exact issue.

    A fraudster makes a bona fide purchase and then flips the property several times to straw buyers to defraud lenders, also known as the “Oklahoma flip”.

     A real estate agent makes a fake MLS listing and sells the non-existent property to immigrant investors.

     A lawyer does not pay off a mortgage to obtain a discharge, but rather takes the money, and the new owner is subject to the prior mortgage. This case in B.C. was probably the biggest case of real estate fraud in Canada. It was exactly that the lawyer had not discharged the prior mortgages.

    We also see fraud on commercial properties with impersonation of corporate directors. A title insurer recently paid $876,000 in order to resolve the claim for the insured lender. A fraudster filed a forged notice of change, appointing himself as the director of a corporation. The fraudster obtained a first mortgage that was title insured. Shortly after closing, the mortgage went into default, and the fraud was discovered when the insured lender initiated mortgage enforcement proceedings.

    Well, these crimes often go unpunished or lightly punished. According to Gary Ford, who's the author of The Canadian Guide to Protecting Yourself Against Identity Theft and Other Fraud, which I'm sure every member of this committee has read:

    So what are we recommending to the committee today? Well, number one, we'd like to see you improve sections 386 and 387 so that they can be used, and educate the police force on how to use them. I know the latter part is not really your role. Second, we’d like to see real estate fraud added to subsection 380.1 as an aggravating circumstance, in terms of sentencing, and that the maximum penalty for fraud be increased from the current 14 years.

    Let’s talk about sections 386 and 387. We've raised this point with the minister. As well, I believe Mr. Comartin has raised this issue with the learned adviser from the Department of Justice. In both cases they indicate that these sections are rarely used. Our view is that they should be improved if they are rarely used, so that they can be used effectively. Furthermore, as the RCMP commissioner advised this committee in his comments, police forces need to be educated on how to apply these sections.

     The federal government needs to act to strengthen the provisions of the Criminal Code to ensure that the fraudsters who commit real estate fraud are prosecuted. In my brief I have the following highlighted in bold print: “Steal a homeowner’s title or equity in their property and there should be mandatory jail time. In Georgia, there’s a minimum of one year for a first offence and three years for a second offence.”

    Currently, section 386, “Fraudulent registration of title”, and section 387, “Fraudulent sale of real property”, of the Criminal Code should address real estate fraud but are deficient in a number of ways. Section 386 imposes three hurdles to a conviction. The crime must have been, one, committed “knowingly”; two, “with the intent to deceive”, and three, by making a “material false statement or representation”.

    Section 386 contains no minimum penalty like Georgia's does. Section 386 does not include other persons involved in the fraudulent process, such as the recipient of the fraudulent funds, or does not include the registration of a fraudulent instrument.

    Section 387 is limited to fraudulent sales and excludes fraudulent mortgages, and section 387 is limited to where the accused knows “of an unregistered prior sale”, which makes conviction under this section difficult.

    Let’s talk about subsection 380.1 and the proposed increase in the maximum penalty.

    Our related concern is that some of the sections related to identity fraud may be difficult to apply in the cases that we’ve seen in title fraud and mortgage fraud. For instance, in the aforementioned case, where family members have the same name--which I refer to as the George Forman phenomenon--and in the case of an abused power of attorney, I raise whether the court will be able to apply the impersonation or identity fraud sections.

    I also note that we are seeing many different types of forgeries. We’ve seen a forged MLS listing, a forged registration of corporate directors, forged corporate signing officers, etc. It is likely that we will see more and varied approaches in the future.

    I believe that the minister noted when he was here that this legislation was “just catching up” and that it was focused on ensuring that identity theft, the enabler to identity fraud, also be a crime. I fully agree, but I also want to ensure that the $300,000 crime carries a stronger penalty than the $1,200 crime. I think it’s incumbent on legislators to ensure that there are no loopholes when a homeowner is deprived of equity or title to their property. Again, we believe the perception is that there are nominal penalties related to real estate fraud and that they go unpunished. So we’d recommend that these crimes be included as aggravating circumstances and the maximum penalty be raised.

    Thank you very much. I look forward to your questions.

    Thank you very much for your presentation.

    I believe, Mr. Murphy, you are going first. You have seven minutes, if you need them.

    What I understand about property registration.... I understand what you're saying, and I know it happens, but in order to perpetrate the fraud that will result in the fraudulent registration of title or fraudulent sale of real property--maybe not in all cases, maybe you have first-hand knowledge, so you can educate us--wouldn't you think most of the people would already have gone through the wicket of committing one of the crimes of identity theft to do so? In New Brunswick, at least, and under land titles across the country, I think you have to provide documentation. Personification, I guess, is one of the code provisions. Another one is identity theft. I mean, aren't there already...?

    Let's put it this way, bluntly. I understand that sections 386 and 387 are specifically identifying the actual crime that you'd like covered, that you deal with, that you pay out claims on. I understand that. If it doesn't go beyond the scope of the bill, certainly, we'll look at that--it seems very reasonable--but are the actions that underlie sections 386 and 387 not already covered by the Criminal Code and these amendments?

    I'm sorry, I don't understand the question.

    Say you have a fraudulent registration of a title. Somebody does that by using somebody else's identity, by pretending to be someone else. Don't they already commit a crime that is either covered in the code already or by these provisions?

    Yes, except in the case where they've abused a power of attorney. They can actually take a power of attorney and go forward and say they have the authority to convey or to mortgage a property. So the issue is whether or not they've applied the power of attorney according to what they were entitled to do. So we've seen some fraudulent use of powers of attorney, which I don't believe are covered in terms of the identity theft provisions.

    Of course, there are civil remedies for that.

    When you said “fraudulent use of powers of attorney”, I thought you initially said going beyond the authority of a power of attorney. Beyond that, there would be a fraudulent use, which is perhaps something more than that—and none of that involves an identity.

    There are two types.

    But there are civil remedies for that, of course.

    Yes.

    And there must be a criminal remedy for a fraudulent use of a power of attorney.

    Yes, there would obviously be for fraudulent use of a power of attorney, but abuse of a power of attorney—thank you for mentioning that—I don't believe is covered.

    So when you raised the point with the minister that it's not in the bill—and I see you have two lines on that, but I guess that's why we're here—what was the response? Could you flesh that out? You only have a line there.

    Would you like me to read the letter?

    Well, it's only one line. Was it you personally who went to the minister?

    We wrote a letter as an association and made the same recommendations. The minister responded by indicating that the sections of the code were rarely used.

    That's the extent of the response you and Mr. Comartin received, that it's not you, so we won't make it better.

    No, the minister wrote:

    In closing—and I speak to the parliamentary secretary when I say this—maybe it's because Mr. Comartin intervened that the government didn't put this in. It seems like a very interesting, efficacious, and easy amendment to do in that it's not used very often. I don't use my fire extinguisher over my kitchen vent hood very often, or hardly ever, but I want it to work and be up to date.

    So let's get with it, Mr. Parliamentary Secretary, and listen to the people—and even Mr. Comartin. That's all I have to say.

    Thank you.

    Thank you.

    We'll now move to Monsieur Ménard for seven minutes.

    I looked at your examples of cases for homeowners. I am trying to understand what you are doing. Do you not realize that the practice in Quebec is very different from the other provinces?

    In Quebec there has been some fraudulent activity. I believe there was a case involving a journalist, a quite high-profile case. The most famous real estate fraud case in Quebec involved former La Presse journalist, François Trépanier, where fraudsters made away with $243,000 and forced Mr. Trépanier to endure considerable stress and legal costs to win back the title to his home in Montreal.

    Generally if a fraudulent transaction takes place in Quebec, the innocent victim must first pursue the notary who completed the transaction. Then they have to go to court. It's litigated through the civil justice system. They're usually paid out through the notary's errors and omissions insurance.

    In Quebec, none of these things can be done without a notary.

    There are a lot of cases where legal professionals across the country have been duped. There are also cases where there have been fraudulent notarial offices and law firms developed and sent to mortgage brokers for mortgage fraud.

    You realize that in the rest of Canada, they do not have notaries like Quebec's. In fact, what the rest of Canada calls “notaries” are actually commissioners of oaths. Since all civil law countries have notaries, none of these things are possible without the complicity of a notary. Clearly, if a notary was caught doing such things, he would lose his licence. In any case, notaries pay a rather high fee every year to compensate all victims of notarial acts. Is that right?

    In a word, no. There are many cases where legal professionals, notaries in Quebec as well as notaries in B.C., real estate professionals across the country, are duped by fraudsters; and it's not the fault of the notary and it's not the fault of the lawyer. So they are not involved or complicit in the action; they've actually been duped by a fraudster as well, who claims to be the owner of a property but is actually not the lawful owner and has a mortgage conveyed, and then it's registered. So it does happen.

    Yes, but to register a mortgage, you need a notarial act, which means you have to go to a notary who has a practice and who is monitored by his professional association.

    There are places across Canada, both in B.C. and in Quebec, where a legal professional has to witness the document and sign and certify—it's not uncommon just to Quebec—and they have been duped. I'm sorry, but they have. They do end up putting fraudulent instruments on the land title office or on the registry system, and it has happened in every province, unfortunately.

    Regardless, we are here to discuss identity theft. I think that in the legislation we have here, anything that relates to identity fraud, you would find satisfactory.

    Absolutely. We would just like to ensure that if there is real estate or title fraud, which you can think of as the jackpot of identity theft, there are provisions that capture the unique cases and the amount of devastation that creates. I think we have sections of the code that deal with that specifically, and as the member previously indicated, If it's broke, let's fix it.

    Thank you very much.

    We'll move on to Mr. Comartin for seven minutes.

    Thank you, Mr. Chair; and thank you, Ms. Rinella, for being here.

    We heard from the RCMP in previous testimony that identity theft was costing the Canadian economy about $2.5 billion a year. I don't think any of us asked them if real estate fraud was included in that figure. Do you know how many incidents there are? If the average transaction costs $300,000, do you know how many transactions there are in Canada per year of this nature?

    There have been many estimates. Generally what you see is that a lot of financial institutions just pay it out. There isn't one steadfast number out there. In Alberta, the real estate fraud committee reported that there were 2,750 incidents of real estate fraud for one year, in 2008. Based on that estimate, I've seen anything upwards of between $1 billion and $3 billion in terms of real estate fraud.

    I know the answer to this, but I just want you to share it with the committee. In terms of specific amendments to sections 386 and 387 that would strengthen them, do you have any specific recommendations on that?

    I can refer you to a bill from Georgia, which is the Georgia Residential Mortgage Fraud Act. It sets out a very good definition of what mortgage fraud should be.

    They've identified that:

That's very similar to what we have now in section 386, but it goes on to state:

—which is distinctive and different from what we have in section 386—

This is where we have recommended this also be included in section 386:

So they don't have to knowingly do something, they just have to be with an intent to deceive. If you receive the proceeds of a transaction, we're saying, and they're saying in Georgia, that should be cause enough to send you to jail.

So we don't currently have “conspiring.” And subsection (5) is related to title:

    This type of definition is actually quite consistent with what CMHC has been using in terms of its definition—anything that's a misrepresentation, misstatement, or omission. So that's the type of fullness that we would like to see brought to this legislation.

    Have you shared that with the Department of Justice or the minister's office?

    I believe we had some discussions with them--not me personally, but other members of the Title Insurance Association.

    Finally, with regard to amending section 380.1, if I understand what you're suggesting, it's simply that real estate fraud be added as one of the aggravating factors.

    Yes. We firmly believe that if you steal someone's title or their equity in their home, it should be an aggravating factor under these offences.

    This is a supplementary question. Are you restricting it to residential properties, or are you including commercial properties in that?

    I would include all properties, even leasehold interests on native lands. I would be very extensive in what's captured.

    Those are all my questions, Mr. Chair.

    Thank you.

    Thank you, Mr. Comartin.

    We'll move on to Monsieur Petit, for seven minutes.

    Thank you, Mr. Chair.

    Ms. Rinella, I am going to ask you the same question you were asked earlier. Nine provinces and three territories use the double mandate system, that is, a person can be a notary and register mortgages, and also be a lawyer. But in Quebec, the profession was split in two categories: notaries and lawyers.

    Title insurance is a unique practice that comes to us from the United States. When you buy a piece of land in that country, given that all land came from the US government and was then transferred to private owners, it can be difficult to know the true identity of the person who sold the land or who asked the bank for a mortgage. In actual fact, it is an identity problem.

    I know that something like this could happen in common-law provinces or during the sale of crown land in the north or elsewhere. The Criminal Code also applies to Quebec. What you are asking us to do would hardly apply to Quebec at all.

    In the legislation that we put forward and that addresses identity theft, would you be satisfied with simply making it an aggravating circumstance? There is a difference between making it an aggravating circumstance and making it a separate offence. If a judge was considering a case of real estate fraud in Quebec, and neither was the notary involved nor was there a series of identify of thefts, in terms of a conviction, would you be satisfied with the aggravating circumstance or would you need a specific offence?

    There is a specific provision in the code already. What we're asking is that it be updated and amended to make it effective. So there's already a section in the code. What we understand is that it's not being used effectively. It's not being used as frequently. We'd like it to be updated so that it can be used. I'm not asking for a new section. I'm just asking for the existing section to be more relevant and thus applicable.

    In terms of making it an aggravating circumstance, I'll take whatever you give me. How's that? I'm not here to negotiate, but I'm happy to. If the committee would take at least one of our recommendations, we'd be delighted.

    Thank you.

    I read your document, and I looked at the examples you provided. They are on page 2 of the English version. As mentioned by my colleague, Mr. Ménard, a former Quebec justice minister, it barely applies to Quebec. I have been a lawyer for 35 years—not a notary—and I can tell you that it hardly applies. I understand that it is applicable in the other nine provinces, but I am trying to see how it will be applicable in Quebec. If we vote for an amendment, I then have to be able to explain how it will work.

    How do you think this could be applied in Quebec with respect to a mortgage or the sale of a home that is registered with a notary?

    As a member pointed out previously, identity theft is covered within the bill and there is a section that currently exists in the Criminal Code that talks about fraudulent registration as well as fraudulent registration of a mortgage.

    We would like to ensure that if somebody is convicted of a fraudulent transaction either through title and transfer of title.... I appreciate that it doesn't happen as extensively in Quebec as it does in other provinces, but we have paid out mortgage fraud in those provinces. I know the notaries have a role where they act for both parties in the case of a mortgage. They sign and authenticate the document, and there have been cases where the enforceability of a mortgage that has been notarized has been fraudulent and we have paid that out. So it does apply in Quebec. And again, the notary is not complicit; they play a limited role. They are reviewing the identity of the person, they are reviewing the description of the property, etc., and the terms of the mortgage. I appreciate that it's not as extensive, but it does happen. We are recommending that if that person obtains that mortgage in a fraudulent manner, we would like to ensure it is captured by section 386 and section 387, because fraudulent mortgages are not covered by section 387 as it stands right now.

     So there are a number of tweaks that we'd like to see made to section 386 and section 387 to make them more powerful and more up to date. I hope that answers your question.

    Thank you.

    Thank you very much.

    Mr. Woodworth, you have five minutes.

    Thank you, Mr. Chair.

    And thank you, Ms. Rinella, for attending today.

    I'd like to begin with two points of what I hope will be clarification. Then I'll ask some questions.

    The first point of clarification is around the minister's answer. Having had the opportunity to listen to his evidence not long ago, I think what the minister was trying to say about section 386 and section 387 is that because of their particular requirements, they are much harder to convict upon than the broader offences of fraud impersonation. It's not that it isn't a problem, but just that the broader offences are easier and therefore more frequently resorted to for the kinds of problems you're addressing. Since that's the case, we don't need to worry about trying to reconstitute section 386 and section 387.

    The second point of clarification I'd like to make is that the bill before us is largely not about the actual fraud offences but instead about what I might refer to as the pre-fraud offences; that is, the theft and possession and trafficking of information rather than the use of that information for fraudulent purposes. So it took me a while to understand where you're coming from. Without in any way taking away from the good points you make about how the fraud sections perhaps could be amended, I'm not sure this particular act is the venue to do that, insofar as it might almost change the entire architecture of the act.

    Having said that, is there anything in this act we are considering that gives you concern? I understand there are things not in it that you'd like to see. Is there anything that's in it that gives your association concern?

    The main point is that we're concerned that a fraud that is committed with a credit card could result in someone with more jail time than a fraud that is committed by somebody who conveys or mortgages property fraudulently. I say that because of the cases of the POAs that are abused, other issues of that nature, and people who are impersonating their family members with the same name. So I kind of worry that--

    So you're suggesting that the penalty provisions for identity information theft or trafficking or possession might be greater than the penalty provisions for the use of it. Is that your point?

    Yes.

    Okay. Is there anything else in the act that--

    No.

    Then it comes down to things that are not in the act that you'd like to see in the act. One of them does get touched on, and that is an amendment in clause 10 around identity fraud or personation with intent, an amendment to section 403 of the code, which currently has a 10-year maximum prison sentence. I know in your presentation there's talk of an increase in the maximum penalty to the general fraud provisions. Are you satisfied with the 10-year maximum sentence for what has been called personation and will now be called identity fraud?

    There's usually an escalation in fraud. Fraudsters usually start with credit card scams and insurance claims, and then they manifest and they get more clever and they use mortgage fraud and title fraud. We would like to see a minimum penalty around title and real estate fraud. I would again point to the Georgia act, where they actually have created an offence for what they call real estate fraud racketeering. It says when there is:

    From our perspective, we would like to see some minimum penalties.

    Do I have any more time?

    No.

    Mr. Norlock, did you want to ask a question?

    Not at this time, thank you.

    Is there anyone else?

    Mr. Murphy.

    What's your view of section 13 of the Canadian Human Rights--

    Some hon. members: Oh, oh!

    Mr. Brian Murphy: --since we have lots of time?

    It's the relationship between where someone's nose touches another person's finger.

    I'm going to rule that one out of order. Nice try, Mr. Murphy.

    Sorry.

    I think we're at the end.

    Just to comment, I'm from British Columbia, and you're correct in noting that the largest land title fraud was committed in British Columbia. Of course Mr. Wirik and, I believe, Mr. Gill are both being prosecuted under the current Criminal Code provisions.

    I'm a little bit concerned about your suggestions about making changes that go perhaps outside the scope of Bill S-4. I tend to concur with my colleague Mr. Woodworth that Bill S-4 is very specific in its scope. I'm not sure the fraud that occurred in British Columbia necessarily would have been more easily prosecuted even with Bill S-4 in place. As you know, in that case it was collusion between Mr. Gill and a lawyer, Mr. Wirik. In that case, of course, it was the Law Society of British Columbia that actually paid all the victims and in fact had to levy very significant sums on an annual basis against the members of the law society.

    So do you want to comment on whether Bill S-4 would have made any difference in the Wirik and Tarsem Gill case?

    My understanding of the case is that Mr. Wirik did not obtain the mortgage discharge. It was a failure in terms of executing his office. That's what he was eventually charged for. So you're absolutely correct, I don't think there would have been any impact from Bill S-4 on this type of fraud. I think he was disbarred in 2002, and it finally came to trial and he was charged in 2009. In the interim he ran a pet food store, so he had a seven-year reprieve in which to develop his defence, which is very unfortunate. That's the one thing that we'd like to see: more effective prosecution of these heinous crimes.

    Thank you so much.

    You're welcome.

    All right, if there's nothing else, we'll adjourn.