I call the meeting to order.
Today is meeting number 48 of the Standing Committee on Justice and Human Rights. It's Wednesday, November 19, 2009, and I note that today's meeting with the minister is being televised.
You have before you the agenda for today. First, we have the Honourable Rob Nicholson with us to open our review of Bill During the second hour, we have with us Shirish P. Chotalia, the government's order-in-council appointee as chair of the Canadian Human Rights Tribunal.
At the end of today's meeting we'll leave a little time for an in camera meeting to discuss adoption of a steering committee report for our work plan going forward.
Once again, a reminder to turn off your BlackBerrys or switch them to vibrate, and if you do have to take calls, please take them outside of this room. Thank you.
By order of reference, we are now considering Bill , an act to amend the Criminal Code on sentencing for fraud. To help us with our review of this bill, we have with us the Honourable Rob Nicholson.
Welcome back, Minister. I understand you have some support with you: Catherine Kane--welcome back--as well as Joanne Klineberg.
Minister, you have ten minutes for presentation, and then we'll open the floor to questions.
Thank you very much, Mr. Chair.
The short title of this was just pointed out to me. You can refer to it as the Retribution on Behalf of Victims of White Collar Crime Act. It's also known as Bill . This enhances the sentencing provisions for fraud, in particular white collar crime.
The Criminal Code already criminalizes a vast array of what could be called white collar crime, such as bribery, credit card fraud, and forgery, and with the passage of Bill , identity theft, Mr. Chairman. I'm glad to get that one passed. That's an important contribution in this area.
The offence of fraud is the most important offence in our arsenal against white collar crime. Fraud consists of two elements: deception or dishonesty, coupled with an actual loss of money or other items of economic value or merely the risk of such loss. So you can see the breadth and flexibility of this offence is adequate to capture security-related frauds like accounting frauds that overstate the value of securities issuers to shareholders and investors, misstatements about the state of the company, or Ponzi schemes of this sort, which has attracted so much attention recently in the United States and Canada.
The fraud offence is also an effective weapon against other kinds of fraud, such as mass-marketing fraud, real estate or title fraud, home renovation fraud, health care fraud, or other kinds of insurance fraud, tax evasion, and old scams now perpetrated with new technologies.
For too long I believe our justice system has not focused enough on the scam artists who take advantage of the trust of others. With the global economic downturn, as I indicated, massive Ponzi schemes have been revealed. I think that underlines the point we've made here and in the House of Commons and to the public at large that we must send a new, stronger message in this area.
The government has a comprehensive plan for sending that message. As members of the committee, you are all aware that the key aspect of the government's response is Bill , which eliminates accelerated parole under the Corrections and Conditional Release Act. This is the responsibility of the Minister of Public Safety, but of course it is a legislative initiative I strongly support.
Another piece of our plan is Bill , which will put an end to conditional sentences for fraudsters, among others.
Let me return to Bill , the Retribution on Behalf of Victims of White Collar Crime Act. To improve the law quickly the government wanted this piece of legislation to be entirely focused. For this reason, the various sentencing measures in this bill are targeted at fraud offenders specifically. The current maximum penalty is 14 years imprisonment, the highest maximum in the code short of life. The maximum sentence is adequate, but we believe that more can be done to ensure that sentences reflect the devastation caused by fraud.
The first amendment in Bill is a mandatory penalty for fraud in excess of $1 million. Fraud over $1 million is currently a statutory aggravating factor. This bill will convert that aggravating factor into a circumstance that results automatically in a mandatory penalty of at least two years in prison. Any fraud or series of frauds that result in the loss of more than $1 million must necessarily have been the result of a complex, well-organized, well-planned scheme and quite likely supported by additional crimes, like forgery. Any fraud that rises to this level of loss must be considered serious.
Many frauds, as we know, are larger than this, so it's important to be clear that two years is the floor, not the ceiling. The actual sentence imposed for a larger fraud will obviously reflect all the additional blame for the elements of that fraud, many of which are captured by existing aggravating factors under section 380.1 of the code. This bill will supplement those aggravating factors with new ones if the duration, complexity, magnitude, or degree of the planning was significant; if the offence had a significant impact on the victim, given their personal circumstances; if the offender failed to comply with applicable regulatory or licensing regimes; or if the offender concealed or destroyed relevant records.
All of these factors highlight, in one way or another, conduct or results that are completely unacceptable to Canadians. The new aggravating factors, in conjunction with the existing ones, will be applied by sentencing courts to arrive at a just sentence on the particular facts of each case.
Another new measure is the introduction of a prohibition order that can be part of the sentence. The Criminal Code has several prohibition orders in place that are designed to help prevent offenders from reoffending. One such example is the order that is often made against a person convicted of a number of child sexual offences. The order, for instance, could prohibit them from, among other things, working in schools or other places where they would be in a position of trust or authority over young people.
Along the same lines, this bill will enable the court to order that the convicted offender be prohibited from having control over or authority over another person's money or real or valuable securities--up to life. Breaching this prohibition order will itself be an offence.
Other aspects of Bill focus on improving the responsiveness of the justice system to the needs of victims. It contains provisions designed to encourage the use of restitution orders in fraud cases. The Criminal Code currently enables judges to order offenders to pay restitution to victims in appropriate circumstances. Restitution may be ordered to help cover monetary losses incurred by victims, among other things as a result of the loss of property caused by a crime. Bill C-52 would require judges to consider restitution in all cases in which an offender is found guilty of fraud. If a judge decides not to make a restitution order, he or she would have to give reasons for declining to do so.
The bill would require a judge, before imposing a sentence on an offender, to inquire of the crown whether reasonable steps had been taken to provide victims with an opportunity to indicate whether they are seeking restitution. This is designed to ensure that sentencing does not take place before victims have had a chance to indicate that they would like to seek restitution from the offender, as well as allow time for victims to establish their monetary losses.
The bill contains provisions aimed at encouraging courts to consider the impact that fraud can have, not only on individuals but also on groups and communities. The Criminal Code currently requires courts, when sentencing an offender, to consider a victim impact statement describing the harm done to or the loss suffered by a victim of the offence. Canadian courts have already in previous cases considered impact statements made on behalf of a community.
This bill would explicitly allow courts to consider a statement by a person on a community's behalf describing the harm done to or the losses suffered by the community when imposing a sentence on an offender found guilty of fraud. A community impact statement would allow a community to express publicly, and to the offender directly, the loss or harm that has been suffered in order to allow the community to begin a rebuilding and healing process.
Mr. Chairman, those are the major elements of this bill. I look forward to the speedy passage of this important piece of legislation.
Thank you, Mr. Minister, for appearing again.
I want to say, first of all, that form 34.1 is an excellent idea. I think all of us who have had some experience in listening to or hearing about cases before provincial courts know that in some cases the issue of an ask for restitution is missed. It's a very good housekeeping item. I know that most competent prosecutors and provincial court judges and police forces don't miss them, but it's a very good housekeeping measure, I would say.
I do want to ask you two questions about this bill, Mr. Minister. One is based on what must be a difficult job for a judge, in certain circumstances involving what we're now calling white collar crime, to grapple with. The second question can only be posed to you in the House because you've had such a long history in justice issues.
The first question comes from the Red Deer Advocate. It's a very difficult case involving a 49-year-old woman who stole more than $5,000 from her company. In sentencing, the judge was really between a rock and a hard spot because that woman was a single mother and caregiver of foster children, and the need to put her away had to be balanced with respect to community interests. At the time I had this article I don't know what the judge did, but I want you to comment on the hard case that this presents for a judge in a case where there is white collar crime and where prosecutors are making statements in court that white collar crime has a major impact on our society, and the federal government wants to introduce legislation to enhance penalties for white collar criminals.
I want to be sure from you, Mr. Minister, that judges won't be handcuffed when looking at cases of where to put a person like this—this 49-year-old single mother—in prison, and won't necessarily be goaded towards that.
The second question, then, is about your experience in 1992, if you can remember back that far. I, of course, was just a young lawyer. You were involved with Mr. Mulroney's government at that time when they adopted early day parole in cases involving people who had been involved in fraud for the same sections of the code we're dealing with. At the same time, that government moved towards being tougher with violent offenders. The point of the article here is that there has been a move away from that because this was all before Madoff, before Lacroix, and there has been recognition from all sides of the House, I think, that white collar crime at the higher level needs to be recognized with tougher sentences. What I'm saying is, do you recognize in the criminal justice issues that governments as astute and strong as Mr. Mulroney's in 1992 moved away from being tough on criminals, recognizing that there has to be a balance as to what is more prevalent in the day? In that time, white collar crime was not a priority, would you say?
So there are two questions.
With respect to your first question, I never comment on specific cases. I don't know if this matter is up for appeal or what the sentence was.
The job that we have as legislators, members of the House of Commons and Senate, is to give guidance on the seriousness with which we view certain kinds of conduct. In this particular piece of legislation, we're talking about fraud in excess of a million dollars. Generally, when there is fraud in excess of a million dollars, we are talking about a sophisticated operation that has gone about the business of fleecing individuals or communities and making victims of innocent Canadians.
Are we giving the appropriate guidance to the courts? I have no doubt that we are living up to our responsibilities. For this kind of activity, we now have the most serious maximum penalty, short of life, under the Criminal Code. I think we're sending out the right message. We're saying that we'll start with two years imprisonment for people who are committing millions of dollars worth of fraud and fleecing individuals, making victims of poor innocent Canadians. They can build from there.
I'm also pleased about the aggravating factors that will be taken into consideration. For instance, we will now be looking at the impact on the community. Sometimes it's not just one individual but a group, an organization, that finds itself victimized. I'm glad this is being recognized. With respect to the changes in accelerated parole, I don't have direct responsibility for this matter. My colleague the Minister of Public Safety has that responsibility.
I disagree completely with your comments that the former Conservative government under Mr. Mulroney moved away from being tough on crime. That government passed the very first law to make it a crime to possess child pornography. The mere possession of it became a crime. You'd find it interesting to read the debates of the day. There was a lot of squealing by the naysayers and nervous nellies that were challenging us about bringing this forward. I said it then, and I'll say it again today: this was an important step in the protection of children.
There have been many changes over the years, Mr. Murphy. I think I was on 35 legislative committees looking at changes to the Criminal Code, updating it to catch up with the technology changes that have taken place. We've been sending out the correct message these last four years. Victims and law-abiding Canadians know they can count on this government to stand up for them. I'm proud to be a part of the government that helped to push that agenda.
Thank you, Monsieur Guimond. You're very generous with those areas that you think I should take over. You started with the public safety minister, even the finance minister, and all those....
Again, this is very targeted. It's very specific. It makes sense. I think you will find that people within your constituency and those who you speak with will be very supportive of the measures we are taking here.
One of the things we've done is to make the whole system more user-friendly for victims of crime in terms of the impact it has, requiring the crown to have a look at the requests and making sure these are available.
With respect to the accelerated parole provisions, again, we're moving on those. My other colleagues are having a look at this.
In and of itself, I think, this a positive move. I know that if you're in the opposition, you're always saying that there's some other bill we could be doing. But this is specifically targeted at those individuals who commit white collar crime. I think these are all very reasonable provisions. I'm hoping that the Bloc will have a look at this and say, “Okay, let's do it.”
I have another bill, as you know, to get rid of conditional sentencing. I don't think people who get convicted of fraud should have the ability to go home on house arrest afterwards.
Yes, I want you to pass this bill, but I can also make the pitch that I'd like to see you pass Bill , which gets rid of house arrest for people who commit fraud.
In one sense, I agree with you. Is this the whole show? Is this the whole package? No. It is not the whole package. The bill on getting rid of accelerated parole is an important component of what we have to do, as is getting rid of house arrest for those fraudsters; I have a real problem with that. I know you've heard me before on this, but the idea that you can be convicted of fraud and then get sent home afterwards, or have the ability to get sent home, I have a problem with.
Anyway, that's another bill for another time.
Thank you for your question.
Good day, Minister, Ms. Kane and Ms. Klineberg.
I'd like to broach a different subject. Unfortunately, there are still people being accused of major fraud. Quite often, victims of these fraudsters suffer from an economic standpoint. The saddest cases are those of individuals who lose their life savings, or their pension fund.
Persons charged currently are eligible to receive a suspended sentence. This Criminal Code provision still applies. Of course, our Conservative government did try to rectify the problem in the past. I was around at the time. We were never able to strengthen these particular provisions of the act because of extremely strong opposition. The opposition was unwilling to cooperate with us. We encountered many problems. I think everyone remembers Bill C-9. It was completely gutted.
Minister, people are concerned. I've had an opportunity to meet with victims on two or three occasions. I believe you were there as well. You will recall that we met Mr. Davis, whose family had had dealings with Earl Jones, as well as with Mr. Gravel, who was representing certain parties in the matter involving Norbourg and Vincent Lacroix.
The Prime Minister also met with these individuals. I met with them, along with you and the Prime Minister. The problem in fact originated in Quebec. The situation was very intense. We are now aware of other cases in Alberta, but at the time, the problem was confined to Quebec. Many meetings were held.
Most of the victims told you and told the Prime Minister they were concerned that white-collar criminals would not receive adequate sentences. That was the impression they had. I was there when I heard them say this to you. Furthermore, they have the impression, because of the system's shortcomings, that these fraudsters will merely pick up where they left off after they are released. The case of Vincent Lacroix comes to mind. Even the Government of Quebec must turn to the Court of Appeal because it believes that sentences should not run concurrently. The situation has become very serious indeed.
Nevertheless, I do have an important question for you, since we are meeting in public. The committee is considering Bill C-52. What do you say to the people who spoke to me, to you and to the Prime Minister? What do you intend to do to help the victims and put things right?
You know as well as I do that if this effort fails, we will be back to square one. Had Bill C-9 been adopted several months ago, we would not be here today. Could you clarify the situation for me? What do you plan to do for the victims to set things right?
First of all, Monsieur Petit, let me thank you for all the work that you have done for the victims. I want to thank you for that leadership role, particularly within the province of Quebec, and your willingness to meet with victims, your empathy with them, your understanding of what they've gone through, and your commitment to do something about the situation that victims find themselves in. It is very commendable and I'm very appreciative of that, as I'm sure all members of the House of Commons are for your work in that area.
You commented on one particular case. I never comment on a particular case, but I will say in general that one of the provisions in this bill is something that I think is of comfort to a lot of people, no matter how long these individuals serve their prison sentence—and we are going about making sure that they do serve substantial time for the heinous crimes they have committed—which is to have the provision in here for the first time that a prohibition order can be issued by a judge for up to life against these individuals, prohibiting them from handling other people's money or finances either on a professional basis or even on a volunteer basis.
As you know, victims will tell us that they know of instances when people who will eventually be released from prison, when they're released, will immediately get back into this kind of business, handling people's money one way or another. This unfortunately is the only business they know, handling people's money and doing it in a fraudulent manner. So to be able to give that prohibition order for up to life against that individual, to prohibit them from dealing with other people's money and making it another offence if they in fact do engage in that, I think are all steps in the right direction.
But you are quite correct that in our discussion with victims we say this is one part of what we are trying to do with this particular piece of legislation. The Retribution on Behalf of Victims of White Collar Crime Act, this bill, is one part of it, but as I indicated to Monsieur Guimond, our colleague the Minister of Public Safety is coming forward with a bill getting rid of accelerated parole, one-sixth provisions. This is another thing that has considerable appeal among people who want to see justice and fairness in the system. That's one piece of legislation.
But you mention as well Bill in the previous Parliament, which was to get rid of conditional sentences or house arrest for a whole wide range of serious crimes. I can't speak for the opposition parties—I'm sure they'd want to do that for themselves—but they took out the provisions that related to fraud. So, unfortunately, today, despite the best efforts of people such as you or Mr. Moore, who is the other parliamentary secretary, and our other colleagues here, it's still the law in this country that you can be convicted of serious fraud yet still be eligible for house arrest. We very much disagree with that.
We have introduced the bill again, Bill , which is now before Parliament. I'm hoping that our colleagues in the opposition will reconsider the position they took in the previous Parliament and say they are going to put an end to this; they are going to put an end to people who commit serious crime being eligible to go home after they have been convicted. This is not what Canadians want.
So I thank you for raising that with me, because as you say, when we talk to people who are victims, who are concerned about this area, we always say we have to get this bill passed, this is an important component of what we have to do, but there are other measures, and I assure them and they know by the evidence that we are prepared to help them in other areas. You've identified a couple of those areas and I thank you for that.
I again remind you that in 1992 a previous government introduced early day parole, but we won't have that argument back and forth.
A lot of people watching will be saying that they do want the perpetrators of white collar crime punished, but more than that, an awful lot of the people want their money back. Yes, we have the CDIC for the banks situation. We have insurance situations. I guess when looking at the justice end of it we realize that criminals have become more sophisticated in white collar crime, and we have to get a little more sophisticated in our response.
For instance, Mr. Minister, you will know that in New Brunswick the Speech from the Throne was given this week. The Attorney General there—and I believe you just had a meeting with the attorneys general across the country—was introducing something called a Civil Forfeiture Act for certain crimes. I'm not exactly sure of the details, but that's the kind of innovative stuff that citizens out there are looking to us as parliamentarians to come up with, safety nets in advance, or the ability to claw in the proceeds of crime and ratchet it up a little more. Can you tell us what your government is doing in that regard?
Yes, punishment is important. Retribution is important. All of those things are very important. But at the end of the day as well, for those seniors who have been swindled and their life savings have disappeared, they don't look at silos of justice, public securities, public safety, and financial institutions. They want to know what we parliamentarians are doing to get victims their money back. What can you tell us about that?
You touched on a very good point, Mr. Murphy. That is, our provincial colleagues, who have great responsibility with respect to this area, are actually bringing in legislation. One of the things that impressed me in my recent meeting with attorneys general from across Canada is the initiatives by a number of provinces to assist victims in the collection of their money.
Mr. Comartin touched upon the jurisdictional issues that relate to this. On the one hand we're cautioned to make sure we don't go too far into provincial areas of this, but I'm quite impressed, quite frankly, by the level of concern that is taking place at the provincial level with respect to this.
With respect to victims in general, you will know and remember very well the emphasis we have placed on victims as a government with the creation of the office of the first federal ombudsman for victims of crime. This was a great step in that direction. Quite apart from how good a job is being done at the provincial level, and I'm very supportive of their efforts, we want to make sure that the concerns of victims are heard at the federal level. I'm very pleased about the work that is being done within that office. I'm very pleased and proud of the fact that we indeed created that position and that office to make sure that victims' issues are heard.
If you look carefully at the legislation that we have here before you--and these are my responsibilities--requiring the judges to consider restitution from the offender in all cases of fraud involving an identified victim with ascertainable losses is an important step forward. As well, there's requiring the judges to provide reasons if they don't move in this direction and putting the onus on the crown to advise the courts as to what steps have been taken to allow victims to set out their ascertainable and quantifiable losses so that restitution can be considered. This is one of the things victims told us. They don't want these things to go through and then find out it's too late for them to have their issues heard.
Monsieur Petit, myself, and others, when we heard this from these groups, said that makes sense. That's exactly what we should have in here: make sure that there is a forum for their concerns to be heard. You will be one of the first, I'm hoping, to agree with me that these are constructive measures being taken to make sure the system is more user friendly for victims and to make sure that the concerns of victims are before the court.
This is part of it, and I commend our provincial colleagues for what they are doing in this area. I indicated to you the federal ombudsman for victims of crime and the issues he and his office are dealing with. These are all part of it, because, you're right, one piece of legislation is not the whole answer. It's an important part of the answer, but it's not the whole answer. I'm pleased that it's part of a larger context.
Here's what I think. We should all be honest. If we had a four-minute minimum, you'd probably oppose that, and that's fine. I understand where you're coming from, which is that right across the board when we bring in these mandatory prison terms, no matter what the bill is—I gave you a good example—you're against it. That's fair enough.
As for what we're trying to do, we have an obligation, as members of the House of Commons and the Senate, to give guidance to the courts. I've had members ask me, back on one of those 35 legislative committees that I was involved with in the 1980s and the 1990s, “Why are you only putting a five-year maximum?” Make it 10 years for the judge, they say. I'd say, look, the five-year maximum fits in with the type of crime that we are doing this on.
We also do it on minimums. I'm sure you probably would be against having a life sentence as the minimum for people who commit murder. You'd say, “Well, it could be some other sentence”. Well, they're there for a reason: to make sure that there are serious consequences for a certain type of activity.
If you commit murder, yes, you're looking at some very serious minimums. It's called “life” and you're looking at 25 years without parole. Again, that's not up for debate here, nor is the free trade agreement with Colombia, as you pointed out.
But I think this is a reasonable response to that. I am willing to believe that if you talk to your constituents and to the people in the law enforcement agencies, they'll say, “Yes, the Conservatives have it right”. Getting tough on crime and putting in these provisions are steps in the right direction.
Mr. Minister, thank you very much for coming here today and expressing yourself in such an articulate manner.
Just by way of a preliminary, I want to say that I have no doubt, Mr. Minister, that Canadians all across the country and Quebeckers know very well that when we're speaking about fraud, simple easy sentences can sometimes just be the cost of doing business. So I think they will support the idea of a mandatory minimum, which will be much more effective than just the cost of doing business.
Mr. Minister, I also want to say that when you were speaking to Mr. Petit earlier, you were commending him on his concern for victims, and over and over at this committee we have seen your special concern to address the needs of victims of crime. I think you articulate that very well, and people all across Canada thank you for that.
Now, once a fraudster is convicted and before he or she is sentenced, of course, the judge always takes into consideration aggravating and mitigating factors. I have victims in mind too. I'm thinking of a client I had once. She was widowed in middle age. She had to finish raising her children on her own, and within a few years of her husband's death she was cheated out of hundreds of thousands of dollars, in effect her life savings. She had to go back to work and can't enjoy the retirement she was looking forward to. We've also heard evidence at this committee and other proceedings on the problems title fraud creates.
Mr. Minister, I know one of the provisions in Bill C-52 will add certain aggravating factors for fraud offences, and I would be grateful to hear from you how these new provisions regarding aggravating factors will help victims of fraud like those.
I think they help in a number of ways.
And thank you for your kind comments, Mr. Woodworth, and thank you for all you do in contributing to this committee and with your colleagues. I find your comments and questions very constructive and very helpful, and thank you for all you do to get these legislative initiatives passed.
With respect to the aggravating factors we've put in, I like how they are specific to the individual. I think I mentioned to Mr. Comartin that it does make a difference: if an individual was worth $100 million and lost $2 million, of course that has less impact on him or her than if the $1 million or $2 million represented everything the individual had. So the fact that this is now going to be before the court is very important, in my opinion.
One of the other provisions as well, since you've raised it, is the whole question that one of the aggravating factors we take into consideration is whether the individual concealed or destroyed the documents, because victims want to be able to access those documents. They want to be able to get at that material. And so what we're saying is that we want that to be taken into consideration, because that makes it harder for victims. If you start destroying the documents, then you're looking at possibly a longer sentence than you might otherwise get, and I think that's entirely appropriate. Why? Because we want to make it as easy as possible for victims to have their cases heard.
So again, it's very specific and very sympathetic to the plight the victims find themselves in, so these are more reasons why I hope this bill commends itself to all members of the House and is passed as quickly as possible.
Good day, ladies and gentlemen.
I am deeply humbled to appear before such a distinguished group of individuals who have served Canadian society in so many important different ways. I had an opportunity to review your biographies. It is both an honour and a privilege for me to serve as Chairperson of the Canadian Human Rights Tribunal and to discuss with you my qualifications for this position.
With respect to the tribunal, it is the adjudicative body that hears complaints of discrimination further to the Canadian Human Rights Act. The tribunal, as you're all aware, is governed by laws written by Parliament and that are interpreted by the courts. The Canadian Human Rights Commission investigates complaints, educates the public about human rights, and advocates positions regarding current human rights issues. The commission, as you're aware, is a party that sometimes appears before the tribunal.
In terms of my qualifications, the Canadian Human Rights Act requires the chair to have been a member of the bar of a province for at least ten years. In addition, all members of the tribunal must demonstrate sensitivity, expertise, and an interest in human rights.
I've submitted to the committee my detailed curriculum vitae in English and in French. I will elaborate in terms of some personal background, which may be of interest to you, that you can't read on the paper.
I was born in Addis Ababa, Ethiopia. In 1960 my father, who had obtained his LL.B., B.Sc., and B.Ed. from Bombay University, was searching for an articling position. However, he seized an opportunity to teach in Ethiopia and moved to Addis Ababa, where I was born. Both my mother and father taught there.
In Addis Ababa they saw an ad in the local newspaper for openings in Alberta for teachers. So my parents mailed their résumés to the address. In India they had, of course, studied that Alberta was the breadbasket of Canada. Now, I know that some will disagree, but that's what they had studied. Then, somewhat surprisingly, they received a telegram, in 1964, asking if they could begin immediately. So in October 1964, they boarded an airplane and flew to Edmonton. They settled in a small French-Canadian town, McLennan, 438 kilometres northwest of Edmonton.
We moved to Edmonton when I was four, because my father, at the age of 39, redid his entire law degree at the University of Alberta.
An interesting event occurred in grade 4. I was walking to school and passed in front of the newly opened Alberta Human Rights Commission office in Edmonton. I still recall walking down the street and thinking that when I grew up, I'd like to be a lawyer and work for them, which is odd, because people usually don't think of or choose a law career so early in life.
The office had just been opened, and Peter Lougheed had been newly elected in 1971. His first act of government was to table two bills: first, the Alberta Bill of Rights; and second, the Individual's Rights Protection Act, Alberta's human rights act. These two bills were his flagship legislation.
In terms of my education,
I completed my education in the Catholic school system. I graduated with a Bachelor of Laws degree from the University of Alberta. I did my internship and was called to the Bar in 1987. I began practising law with my father at the firm of Pundit & Chotalia. At the same time, I enrolled in a part-time Master of Laws program at the University of Alberta and obtained my Master of Laws in 1991. For my Master's thesis, I drafted a privacy protection bill inspired by Alberta's human rights system.
In the interim, in 1989 I was appointed by the Minister of Labour as a commissioner to the Alberta Human Rights Commission. During this work, I met with aboriginal Albertans and gained an understanding of their concerns.
After this appointment, in 1994 I wrote a legal annotation of human rights law, which is the Annotated Canadian Human Rights Act. I updated this text annually for a number of years. In 1996 I wrote a larger work, called Human rights law in Canada, which included the provincial human rights laws of Alberta, B.C., Quebec, and Ontario.
Meanwhile, in terms of the thrust of my law practice, for the first five years I had a general practice, including extensive criminal law work. I then began to focus my practice in the areas of immigration and human rights litigation. I represented both complainants and respondents with issues of fairness and access to justice. For example, I assisted many live-in caregivers who were facing removal for circumstances beyond their control. I brought a constitutional challenge to legislation for a woman who had contracted breast cancer in Canada and was found to be medically inadmissible. I was also involved in major litigation against the Government of the Northwest Territories for a male client who was falsely accused of sexual harassment. The suit was for conspiracy and defamation.
I was counsel for the Alberta Civil Liberties Association in Grant v. Attorney General of Canada, both before the Federal Court Trial Division and the Federal Court of Appeal. The court ruled that not only was the RCMP within its rights to allow a Sikh officer to wear a turban, but was indeed under a duty to accommodate this religious practice.
Over the last number of years I represented a woman who alleged that she was denied the position of a surface rights administrator with an oil company because she was a woman. She also alleged that she was harassed and retaliated against for having filed a discrimination complaint with the Alberta Human Rights Commission. The Alberta Court of Appeal recently ruled in her favour.
Parenthetically, a few years after my Annotated Canadian Human Rights Act was released, I was appointed to the Canadian Human Rights Tribunal as a part-time member. During this tenure, I adjudicated on a variety of cases, including disability in the trucking and shipping industries.
Throughout my legal practice, I have worked toward ensuring that there is fair process for my clients, both complainants and respondents. Recently, in 2008, I was appointed, through an independent vetting committee, as special advocate to represent named persons facing allegations of terrorism. The requirements included expertise and knowledge in human rights law, immigration law, and security law. I had taught terrorism and the law, as well as human rights law, at the law faculty for a number of years at the University of Alberta.
Recently, in 2008, I served as a bencher of the Law Society of Alberta. I was elected by Alberta lawyers to administer the Legal Professions Act of Alberta, which governs lawyers, so we conducted and I sat on a number of disciplinary hearings, as well as competency hearings.
In short, I feel that I bring the qualifications and credentials necessary to serve as chairperson of the Canadian Human Rights Tribunal. I hope that I may draw on my experience as vice-chair of the Access to Justice Committee when I was a bencher of the Law Society of Alberta. I hope to search for ways to improve the efficiency of the hearing process to enable complainants and respondents to access justice in a timely fashion. Indeed, I am seeking to reach out to lawyers, law schools, and stakeholders in the process to develop strategies.
Thus, I look forward to serving Canadians to the best of my ability, and I'm delighted that you've asked me to come here.
I'm happy to answer any questions you may have for me.
Thank you very much, Mr. Chair.
Thank you so much for coming today. We've all read with interest your curriculum vitae and listened to your statement here. We're all incredibly impressed with your credentials, your integrity, your honesty, and we're very pleased, obviously, to say statements in support—I think I speak for my colleagues when I say that—of your nomination.
One thing we've been doing as a committee, among many other things involving the minister's very busy agenda for us, is discussing perhaps even the future of the Canadian Human Rights Commission with respect to, in particular, hate crime complaints.
I do note in your very lengthy CV.... Your CV took a long time to read. None of us have that long a CV at all. Dominic's and mine, in particular, could be read in 20 seconds.
I did happen to notice, because it's of interest to this committee, that you were a member of a panel involving a complaint in 2003; in particular, the complaint involved Richard Warman, and the respondent was Fred Kyburz.
In that decision, on which you were a panel member, Mr. Kyburz did not appear or give any evidence. He was duly served but didn't. His website, which was put up and introduced into evidence, known as the Patriots on Guard website, was the issue. That site had many statements on it that were very detrimental to the Jewish community, linking them to issues of child pornography, and bleeding Russia dry, and I will not countenance any of the other comments being made, but let's say there were six pages of the evidence upon which you, as a panel member, decided.
What I have for you is a question that is pretty simple. The panel got together and wrote a decision accepting the complaint as one based in hate and used these words to summarize it. I just want to ask you, if I could read these words, whether you agree with their content. They are as follows:
||Article 19 of the Universal Declaration of Human Rights provides that such right "... includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media ..."
That goes to the right of free speech.
||While the right to hold and express one's opinions is a cornerstone of a free and democratic society, such a right is not unlimited. In some situations, the protection of society mandates limits on what individuals may say. For this reason, it is unlawful to shout "Fire!" in a crowded theatre when no fire exists, to phone in a bomb threat, or to threaten to kill another person.
The tribunal went on then to quote the Taylor case, with which we're very familiar, and the Supreme Court of Canada's decision. The tribunal, of which you were a part, concluded:
||The Court concluded that while section 13 infringed the right to freedom of opinion and expression, this infringement was justified in light of international commitments to eradicate hate propaganda, and Canada's commitment to the values of equality and multiculturalism. Having found that Fred Kyburz did communicate, repeatedly, by means of the facilities of a telecommunications undertaking within the legislative authority of Parliament, matter that is likely to expose people of the Jewish faith to hatred or contempt, Mr. Warman's section 13 complaint is substantiated.
The simple question is, were you a part of that panel? And were you involved in the expression of this opinion, in writing, and do you agree with its content?
That's a very good question. I tried to explain my role earlier.
There is a very important difference with the tribunal. We are like the court--it's not a court, but a quasi-judicial board. We hear the matters.
It's the commission that educates the public and advocates certain positions. The commission is certainly free to come here and share its view on section 13, that they think section 13 should be amended in such and such a fashion. That is for the commission.
When the commission was created, it started out of piecemeal legislation that was anti-discriminatory legislation found, for example, in the Ontario human rights act, that you couldn't give insurance, say, to Jewish people or you couldn't sell land to Jewish people. There were provisions in various statutes that were very discriminatory. Then in the 1970s the whole act was put together to create the Canadian Human Rights Act, with a commission to educate Canadians about the virtue of the act.
Prior to that there were also criminal and quasi-criminal provisions. Those were not found to be very effective, because if somebody was found to be in breach of the act, all they could do was incarcerate the person or give them a fine. Then the commission was created, and the mandate of the commission is multi-fold: it's to educate, investigate complaints that come before it, and then to actually take carriage of those complaints before the tribunal. So we are independent.
In one case a number of years ago, there was a challenge to the jurisdiction or the independence of the tribunal because our budget was coming out of the commission's budget. It was felt that we were too close to the commission. That was amended and changed so that we are very independent of the commission.
For example, I don't liaise with the commission on an individual case, but it is my hope that I can liaise with the commission on administrative matters where I hope that we can expedite hearings and give access to justice to parties quicker and in a more efficient fashion.
Thank you, Ms. Chotalia, for your presence here this afternoon and for your very impressive résumé. It's always good to see a fellow Edmontonian here in Ottawa.
Following up on my friend Mr. Murphy's questions, I do have some questions regarding the 2003 decision of Warman against Kyburz. You have it in your résumé as Kyberg but in the actual decision I think it's Kyburz, but that's not too germane to my question.
You answered in response to Mr. Murphy's question that there was unanimous decision of the tribunal, and you were a part of that adjudicative body. And I understand that Mr. Warman received compensatory damages from the adjudicatory body in the amount of $15,000. I'm really curious and concerned about that, especially in light of the ruling in paragraph 90 where it states, “Mr. Warman testified that he was not Jewish. In our view, the fact that Mr. Warman was not himself Jewish does not detract in any way from the viciousness of the attacks launched” by Mr. Kyburz.
As you may or may not know, I spend the majority of my legal career in insurance and compensatory and personal injury law, and I'm always concerned about the difference between complainants and actual victims. And in this case and from my reading of it, I didn't see that Mr. Warman was a victim. He testified that he wasn't Jewish. He in fact was an employee, as you undoubtedly know, of the Human Rights Commission at the time that this complaint was filed and adjudicated. I just am really curious to hear you comment, if you recollect, on why the tribunal was predisposed to award him $15,000, in light of the fact that he's not Jewish and therefore logically cannot be offended by the very, very offensive postings of Mr. Kyburz on his website.