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View Jason Kenney Profile
CPC (AB)
Thank you, Mr. Chairman.
We do have a number of officials here, from both the Department of Citizenship and Immigration and Public Safety Canada.
Thank you.
Honourable colleagues, thank you very much for the opportunity to speak to the Standing Committee on Citizenship and Immigration about Bill C-43. This piece of legislation is part of the major effort we are making to strengthen the integrity of our generous immigration system.
As you know, under the current government, Canada has the highest rate of immigration in our history and the highest per capita rate in the developed world. The vast majority of new Canadians, of course, arrive with every intention to abide by the laws of Canada and to fully integrate into society. They in particular have no sympathy for foreign nationals who arrive in Canada and who are convicted of serious crimes.
This is why our government made a campaign commitment to streamline the process of removing foreign criminals who have been convicted of serious criminality under our justice system.
The government has also recognized that some amendments have to be made to the Immigration and Refugee Protection Act in terms of admissibility to Canada. This is a complex but significant aspect of the Immigration and Refugee Protection Act.
The goal of the amendments is to allow entry to Canada to honest people who are going to contribute to the prosperity of our country and to deny entry to those who perhaps represent a threat to our security or our public health.
I am pleased to present to you Bill C-43, Faster Removal of Foreign Criminals Act, which responds to those objectives that we committed to in the last election, and indeed in the throne speech.
Through this important legislation we are delivering on a campaign commitment to streamline the process to deport convicted foreign criminals.
Currently, a permanent resident or foreign national may be ordered deported if they could receive a maximum sentence in Canada of at least 10 years for their crime or if they receive an actual sentence of more than six months. But there's a fundamental problem with the status quo. As long as the sentences for such convicted criminals are less than two years, permanent residents can appeal their deportation from Canada to the Immigration Appeal Division of the IRB, and if they lose that appeal, they can appeal that through an application for judicial review to the Federal Court. This adds, in many cases, up to three years of delays in deportation for serious convicted foreign criminals.
Chairman, I believe that even foreign criminals convicted of serious crime deserve their day in court, but they do not deserve endless years in court while they delay their deportation from Canada. I believe that even foreign criminals convicted of serious crime deserve due process, but they should not be able to endlessly abuse Canada's fair legal process.
That's why, under this act, any permanent resident who receives a sentence in Canada of six months or more would no longer be able to appeal their deportation to the IAD, the appeals division of the IRB. This legislation would also bar those who have committed serious crimes outside Canada that would be punishable in Canada from accessing the appeals division.
It is important to note that serious criminality is already defined under the Immigration and Refugee Protection Act as a conviction for which a sentence of more than six months has been imposed. There was some confusion about this during the debate on second reading in the House.
I emphasize that this bill does not change the definition of serious criminality in the Immigration and Refugee Protection Act. It continues to be a conviction for which a sentence of more than six months has been imposed. The changes we propose are therefore consistent with other provisions currently in our immigration legislation.
To those who argue that any of this is somehow unfair, that we're punishing people for so-called minor crimes, whatever that means, or mistakes they've made in the past, we say that residency in Canada is a privilege, not a right. One of the few things we ask for you to maintain that privilege is that you not commit a serious crime in Canada. If, as a foreign citizen, you come to Canada with the privilege of residency and you commit a serious crime, let's be clear, you lose the privilege of staying in this country.
Mr. Chairman, as you know, I regularly meet with members of our diverse culture communities, and they feel this particularly strongly. I'll just say as an aside that it's no accident that I made the commitment to this legislation during the last election in Vancouver's Chinatown at a press conference that I think was attended entirely by members of the ethnocultural media. We have seen massive support for this idea from new Canadians because overwhelmingly they're the folks who play by the rules, who come here and treasure the residency that typically leads to citizenship, and frankly, they have no patience for those who come here and abuse Canada's generosity by victimizing Canadians, and very often victimizing new Canadians.
I'd like to suggest to the critics of this bill that I'd like to hear them, for once, talk about the victims of these crimes. I'd like for them to contemplate or even acknowledge the sad reality that many Canadians, including many new Canadians, have been victimized, even through violent crimes, by foreign nationals who were delaying their deportation thanks to the kinds of delay tactics that this bill seeks to close.
Some critics, including the opposition, ask us to consider the hardships that criminals and their families will face. But do those critics ever stop to think about the hardships faced by the victims of crime?
One immigration lawyer expressed concern about the “monumental effect” that the removal of foreign criminals would have on immigrant communities. Frankly, I think that idea is insulting to immigrants. As I mentioned earlier, the vast majority of immigrants, like other born and bred Canadians, are law-abiding, hard-working, honest and proud. In fact, we accept more than a quarter of a million new permanent residents per year, of whom fewer than 1,000 are convicted of serious criminality and appeal to the IRB. That means that this bill will affect less than 1% of all permanent residents, 0.3% of them, to be precise.
Unfortunately, there are countless examples of foreign criminals who have been given sentences of under two years and have managed to parlay that delay into a long, drawn-out removal process that lasts for years, including some of the worst offenders imaginable.
Take the outrageous example of Cesar Guzman, a Peruvian national who was issued a deportation order after being convicted of sexually assaulting a senior citizen. This predator was only sentenced to 18 months in prison, so he was able to use his appeal to the Immigration Appeal Division. He should, however, have been sent packing back to Peru as soon as he had finished serving his 18-month sentence, but because of the avenue of appeal that was open for him, he delayed his deportation for nearly four years.
Mr. Chairman, when Canadians read about cases like this they are understandably upset that we permit such delays to occur. Worst of all, many convicted foreign criminals have used the time they've bought appealing their deportation to reoffend, and sometimes to commit even more heinous crimes.
The fact that these foreign criminals can walk freely on our streets when they should have been sent home at the earliest opportunity disturbs the vast majority of Canadians. I can think of no better and more tragic case that typifies this problem than that of the murder of Toronto Police Constable Todd Baylis, who was killed by a foreign national who was delaying his deportation. There were operational mistakes on that file, but the fact that he was able to make an IAD appeal and delay his deportation contributed to the fact that Jamaican citizen Clinton Gayle was in Canada to kill police Constable Todd Baylis. We can never let that sort of thing happen again.
Under Bill C-43, if you commit a serious crime, you will get your day in court, but you won't get endless years in our courts.
There are other measures of the bill that seek to facilitate legitimate travel to Canada by people who do not pose any kind of a risk, which I think was skipped over in the debate on second reading. For example, previously, if low-risk travellers were accompanied by a family member who was inadmissible for grounds other than security or criminality, such as health, the entire family would be found inadmissible and would have to return to their home country. This bill proposes to improve the system so that only the inadmissible individual would be denied entry into Canada. All other accompanying family members would be allowed to enter. It doesn't penalize family members for one member's inadmissibility.
Yet another key change would give the Minister of Citizenship and Immigration new authority to deny entry—and I'll just focus on this—in exceptional cases to foreign nationals who mean harm to Canadians, such as individuals who encourage or incite hatred that could lead to violence. There has been some controversy on this provision. In the bill, we propose that the minister would have the ability to deny entry to foreign nationals based on public policy grounds. We drew that legislative proposal from our study of analogous provisions in peer democracies like Australia, New Zealand, the United States, the United Kingdom, and many western European countries that have various forms of what we would call negative discretion.
Colleagues, let me explain the rationale. Quite frequently, members of Parliament and members of the public come to us and ask why we would admit to Canada a foreign national who has a long record of promoting hatred, and even inciting violence. To give you one example, last year the Council of Quebec Gays and Lesbians protested the effort of Mr. Hazma Tzortzis and Mr. Abdur Raheem Green, British nationals who were seeking to come to Canada to speak at a conference. These two individuals have a long record of vicious hatred, including calling for the death of gays and lesbians, Jews, violence against women, etc. Indeed, the Quebec National Assembly passed a unanimous motion calling upon me as the minister to deny entry into Canada of these individuals. This is one of many examples.
In fact, when I was a member of the opposition, I had proposed that we deny entry to Canada of Fred Phelps, a man who goes around promoting violent hatred against gays and lesbians. I also did so with respect to Sheikh Abdul Rahman Al-Sudais, a Saudi national who called for the destruction of all of the Jewish people.
Now, here's the problem we have, Mr. Chairman. If you believe the admission of such people to Canada is a problem—and that's a debatable question, for sure—and if you believe that such foreigners should not be permitted to spread potentially violent hatred in Canada, you have to recognize that the current law doesn't give us the tools to deny them entry, unless they are inadmissible on national security grounds. Let me be clear: promoting hatred against Jews is not a crime in Saudi Arabia. There are many countries in which crimes that exist in Canada do not exist in other countries, such as the promotion of violence or hatred against vulnerable groups.
This raises a very serious question as to whether or not Canadians and Parliament believe there should be some reasonable, discrete, limited, flexible tool that we can use in extraordinary cases where, for reasons like this, we want to keep out a foreign national who might otherwise be admissible. On what grounds you apply that power and in which cases and so forth are all legitimate questions for debate, which is why I'm tabling before the committee, Mr. Chairman, proposed guidelines for the exercise of this power of negative discretion.
I share now with committee members that this would focus on those who are involved in promoting terrorism, violence, or criminal activity, such as promoting or glorifying terrorist violence; promoting or glorifying a listed entity under a listed terrorist entity; counselling, encouraging, or inciting others to commit terrorist activity or terrorist violence; inciting hatred that is likely to lead to violence against a specific group; or promoting, counselling, encouraging, or inciting serious criminal activity. Additionally, this would give us the authority to deny admission to a foreign national of a country against which Canada has imposed sanctions under the United Nations Act or the Special Economic Measures Act, where that foreign national is a former or current senior official of the government of that country or of any entity owned or controlled by or acting on behalf of the government, or an associate or a relative of an official or person set out in paragraph 36(1)(a), or of a foreign national who is a politically exposed foreign person listed in regulations to the Freezing Assets of Corrupt Foreign Officials Act.
The latter section responds to calls from the opposition, from the Liberal and New Democratic parties, following the arrival of certain members of the family of Mr. Ben Ali, the former Tunisian dictator. Members of his family managed to get admission to Canada, and members of the public and opposition asked, “Why are you allowing the dictator's family to seek refuge in Canada?” The answer was that they're not otherwise technically inadmissible under sections 34, 35, and 36 of IRPA. These are the inadmissibility provisions, and we can't deny them admission if they don't have a criminal conviction or they're not members of a terrorist organization.
There may be cases where we want to bar, for example, senior regime members. We had sanctions on the Burmese regime. This would have given us the authority, for example, to deny members of the junta from Burma, at the time, from entering Canada.
We have sanctions now on the Iranian regime. We may want a broader power to deny admission to Canada of senior members of that regime. This would give us those tools.
As I conclude, Mr. Chairman, I would invite the committee to give these issues very serious, sober-minded consideration. I would say to my friends in the opposition, who aspire to form government some day, that they may have to grapple with these problems, too.
I think all of us, as parliamentarians, need to very soberly reflect on what are the appropriate criteria, if any, to deny admission to foreign nationals in such exceptional circumstances. And how do we have a flexible tool that can respond to these situations?
Finally, Mr. Chairman, thank you for your attention. There are many other provisions of the bill that I didn't get into—some of which are technical, but all of which are important—and I and my officials stand ready to respond to your questions.
View Dave MacKenzie Profile
CPC (ON)
View Dave MacKenzie Profile
2012-04-26 11:05
I call this meeting to order, this being the 32nd meeting of the Standing Committee on Justice and Human Rights.
Pursuant to the order of reference of Wednesday, February 15, 2012, we are here to consider Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom).
This morning we have three witnesses, all from the same organization, from B'nai Brith.
I think in the correspondence you received from the clerk it was indicated that you have five to seven minutes for an opening address. Whichever member wishes to make that address, or share it, you can start now.
Frank Dimant
View Frank Dimant Profile
Frank Dimant
2012-04-26 11:06
At the outset, we want to thank the committee for extending an invitation to B'nai Brith Canada and its League for Human Rights to appear before you.
I'll begin with a word about B'nai Brith Canada, introduce some of the members of the delegation, and give our position on the issue.
B'nai Brith Canada is the Jewish community's most senior organization. We have been operating in Canada since 1875. Our mandate is both to provide social services and advocate on behalf of the community. Through our League for Human Rights, we deal with domestic human rights issues. Through our Institute for International Affairs, we deal with the global issues of human rights and protection of human rights.
Today we have an interesting representation of our organization.
First of all, my name, just for the record, is Frank Dimant. I am the CEO of B'nai Brith Canada and its League for Human Rights and Institute for International Affairs.
We have brought along several key international and domestic experts on human rights, who are senior officers within our organization, to help enunciate the position of our organization after much deliberation. It was not an easy decision that we came to. We spoke for approximately one year in order to reach a consensus among all our various human rights activists across the country.
Our delegation, some of whom will speak and some of whom will be in the audience, consists of Eric Bissell, our national president, who has come from Montreal; Dr. Max Glassman, a national vice-president from Toronto; and Michael Mostyn, our chair for government relations. The two individuals here with me certainly do not, for some of you, need any kind of introduction. Dr. David Matas is our honorary senior legal counsel and is one of the world's greatest international human rights advocates. He represents B'nai Brith Canada and B'nai Brith International at numerous conventions and forums around the world. Finally, Marvin Kurz is senior legal counsel for the League for Human Rights of B'nai Brith Canada. He has been involved in virtually all of our major human rights issues and appearances before the courts, including the Supreme Court, for the last quarter of a century, if I am correct on that.
As I indicated to you, section 13 of the Canadian Human Rights Act has been a tool for B'nai Brith Canada throughout its years in fighting hate speech. We have appreciated that arrow in our quiver. We've needed that arrow. It's served an important role in fighting the hate-mongers in this country.
I just want to tell you that next week, B'nai Brith Canada will be releasing its audit of anti-Semitic incidents. Just to foreshadow it, I will tell you that the climate is not a good climate in the field. It is not. Therefore, we need all the kind of weaponry we can have in order to battle the hate-mongers.
However—however—as a progressive human rights organization, we recognize the misuse of this section and the hardships it has brought to individuals. Therefore, at this moment, we support the repeal of the section.
We want to make it clear that we come with a heavy heart. We do not come to the decision lightly. But based on our expertise and the expertise of numerous human rights activists across the country, the time is right for change.
However—as you will hear in a moment from my colleagues—that repeal by itself, without putting into place other safeguards, will be a disservice to the Canadian population in fighting the kind of hate-mongers who exist here.
We are exceptionally cognizant of what is happening in Europe and elsewhere. We try very hard to stop the tsunami of hate from Europe from coming to the shores of Canada. We need your support in ensuring that there are the legal protections to enable us to fight this kind of hatred that is certainly in the country now and, I must tell you, continues to grow.
I'm now going to ask David Matas to present for us.
David Matas
View David Matas Profile
David Matas
2012-04-26 11:11
Thanks.
I'll be equally brief, if not briefer.
One of the lessons of the Holocaust is the need for an effective effort to combat hate speech. The Weimar Republic had laws against hate speech. They did not work.
If eliminationist anti-Semitism had been effectively combatted in the years before 1933, the Holocaust would never have happened.
Canada, both federally and provincially, has engaged in a plethora of efforts to combat hate speech. The laws, though, suffer from two extremes. Some laws, the criminal laws, are almost dead letters, rarely invoked. Other laws, the civil human rights laws, are too easily used, indeed abused, harassing innocents and threatening freedom of speech.
The solution that Bill C-304 presents to Parliament is abolishing the jurisdiction to deal with the abuse.
In our view, there is room for a civil remedy, and the civil remedies exist provincially, as well as, at least now, federally. Those civil remedies, though, have been abused, and provincially, if they are going to survive, they are going to need reforms to keep them working.
Some of the abuses we've seen, which lead to the reforms we've recommended and still recommend, are ensuring full disclosure to the target of the complaint, not allowing for the making of anonymous complaints, giving the power toward cost to the target of a complaint, requiring the complainant to choose only one form or venue, and screening cases even where commissions do not conduct cases.
We would hope that the coming abolition of the federal law does not serve as a model for the provinces, but it should be a warning for the provinces that they amend their jurisdictions to prevent them from the sort of abuse that we have seen and that my colleague Marvin will talk about.
It is unsatisfactory, though, to abolish a civil remedy open to abuse and leave standing only a criminal remedy, which is almost never invoked. Obstacles to use of the criminal law need to be removed. Crimes that reform the criminal law should include banning racist groups; giving courts the authority to allow impact statements from victim groups targeted by hate speech, including hate motivation as a constituent element of aggravated offences rather than just an aggravated factor in sentencing; and setting out guidelines for courts and for attorneys general, so that attorneys general, when they're exercising their discretion to consent, have these guidelines. Also, legislating a specific offence of Holocaust denial....
Combatting anti-Semitism means dealing with anti-Semitism as it is today in its modern forms. Ultimately, the subject matter of this committee and our concern is combatting hatred effectively, whether through the criminal law or the civil law. We do have a problem and we do need a legal remedy for it.
Marvin, why don't you add to that?
Marvin Kurz
View Marvin Kurz Profile
Marvin Kurz
2012-04-26 11:14
Hate speech is a pervasive problem in our society. Whatever remedy we as Canadians use to combat it, it's something we have to recognize hasn't gone away.
Between David and I, we've probably been involved in almost every major hate speech case in the last quarter of a century, going all the way back to John Ross Taylor, an original Nazi—not a neo-Nazi but a Nazi Nazi—who was interred in Canada during World War II because of his vicious, seditious, pro-Nazi sentiments. We thought it would end with the demise of the neo-Nazi movement.
There are a few very brief lessons we've learned from Canada's legislative history of dealing with hate speech. First of all, legislation can work. Between section 319 of the Criminal Code, the prohibition on hate propaganda, and section 13 of the Canadian Human Rights Act, a great many inroads have been made so that the neo-Nazi movement, if not completely destroyed, has been effectively minimized within Canada. That's a great success. And what it shows is that legislation can work and that legislation can balance the interest of freedom of speech on the one hand with the need for equality for all Canadian citizens in an increasingly multicultural country.
At the same time, as we've gone along, B'nai Brith, as a human rights organization, has recognized that even though it's been very effective, there have been problems with it.
Frank has talked about us really agonizing about it over the last year, but we've really been involved in that consideration for more than the last year. It's kind of come to a head in the last year. Even before the Moon report, we met with Professor Richard Moon. I remember that I drove him home after our meeting. We have strong memories of that. We spoke to him.
Some things that are important to recognize in moving forward are that section 13 has been effective, and it has dealt with only the worst of the worst. Even Professor Moon says that. However, we have recognized, and Professor Moon has recognized it as well, that there have been abuses. There have been procedural abuses. When you see a case like Elmasry v. Rogers, where Mark Steyn and Maclean's magazine were brought before three different human rights authorities and three different jurisdictions at the same time until they finally found a human rights authority that would allow them to bring a hearing without any screening, nothing could be more vexatious than that. Because that's what happened in the British Columbia Human Rights Tribunal. David has talked about the provincial authorities.
B'nai Brith itself has been the victim of an abusive complaint before another provincial authority over a similar matter, which was a matter of great procedural abuse. So we're coming to this position understanding those problems. What we're saying to the committee, and hopefully to Parliament, is that if the inevitability of eliminating section 13 is clear, then we need to strengthen our other laws, and I'll leave it at that.
Thank you, Mr. Chair.
View Françoise Boivin Profile
NDP (QC)
Thank you, Mr. Chair.
I also wish to thank our witnesses for taking the time to come to the committee today. I thought what you said was very interesting, all the more so since the three of you, or at least two of you, have been involved in almost all major cases of hate speech.
I want to make sure I understood your position. You would be in favour of amending Bill C-304 and finding ways to reduce procedural abuse. This is your priority. However, if this is not possible, you want us to make changes. But this is not being considered by this committee since we have no such bill in front of us. So you are somehow making an act of faith, hoping that the government will move an amendment to the Criminal Code in order to deal with the shortcomings of section 319 of the Code. I want to be sure I did understand your testimony.
David Matas
View David Matas Profile
David Matas
2012-04-26 11:19
Excuse me, but I will answer you in English.
Yes, I think basically you've understood it. Obviously, we don't draft legislation. We don't get it through Parliament. Our ideal world wouldn't either support Bill C-304 or defeat Bill C-304, but faced with the choice, which is the choice we have, our choice is support. In our ideal world, we would build a sandcastle that wouldn't look like Bill C-304 or its defeat.
View Françoise Boivin Profile
NDP (QC)
I know enough about law to make a distinction between a civil procedure before a human rights tribunal and a criminal procedure. The burden of proof is not the same, and the content is not necessarily similar. I always thought that in a procedure before a human rights tribunal, there is an education component that has no equivalent in the Criminal Code because the Code's object is simply to accuse and penalize.
Considering where you come from and what you represent, it makes me shiver to think that, in order to protect freedom of expression, which we all value, we should put up with hate speech, as some witnesses told us. This is not a matter of
freedom of expression here. It's heinous expression that is at the core, or should be at the core, of that whole disposition.
David Matas
View David Matas Profile
David Matas
2012-04-26 11:21
I don't know if I'd put quite the same emphasis.... I don't think we should underestimate the problem of abuse. We're very familiar with the jurisprudence. The decisions on the whole I don't have a problem with, and my colleagues don't. The problem is invoking the process in such a way that it becomes a victimization of the targets.
View Françoise Boivin Profile
NDP (QC)
Then should we amend to make sure that section 13...?
For example, we could say the following: "A proceeding in relation to a discriminatory practice referred to in this section may be dismissed, in whole or in part and with or without a hearing, if the Commission determines that the complaint, or one substantially similar to it, is the subject of another proceeding, including a proceeding before a human rights tribunal established under the laws of a province."
Would it be satisfactory if we go as far as to say that some things can be done if people think that a complaint is obviously abusive and if measures are taken to overcome the abuse factor? As I said to other witnesses, I feel as if we are throwing out the baby with the bathwater by eliminating a remedy that is extremely important even though we need to discourage procedural abuse. Ultimately, the abusers would be the winners.
David Matas
View David Matas Profile
David Matas
2012-04-26 11:22
My colleague, Marvin Kurz, will say something.
Before he does, I wanted to add that I'm very involved with the international human rights system. I have seen the international human rights commission and then the council totally corrupted by people with an anti-Zionist agenda, to the point where it's become an Israel-bashing organization rather than a human rights organization. I come to the Canadian experience with that international experience, and I see the start of that happening here. Unless we lay in our defences, we are going to see our system internally corrupted in the same way the international systems were. I don't think we should minimize that danger.
Marvin Kurz
View Marvin Kurz Profile
Marvin Kurz
2012-04-26 11:23
I have a few more points, Madame Boivin.
I've been to the Supreme Court of Canada a number of times defending section 13 and defending this kind of legislation, and David and others among us have as well. For us to come here like this, having been in the forefront of organizations that have appeared before courts at every level—I spent six years on the case dealing with Ernst Zundel, which at one time was at the Canadian Human Rights Tribunal, the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada at the same time. When Frank Dimant says we come to this with a heavy heart, it's true.
What you're talking about and the kind of amendment you've described is something we've talked about for years, but it hasn't happened. We have no reason to expect that it will.
One of the key things about section 13—and I think you're right about the section 13 that we would like and that we would have liked to have seen, and it's the section 13 that was considered by Chief Justice Dickson and the four-judge majority in Taylor. It wouldn't be seen as having penalties; it wouldn't be seen as draconian. It would be seen as mediative, that there would be mediation available; there would be an attempt to persuade people out of the errors of their ways in a way that the Criminal Code is not set up to do.
You're 100% correct, although it's not as stark a difference as that because we know that, for example, part of the role of a modern police force is almost a mediative role. You call the police to some kind of a dispute and the first thing they're going to try to do is make like Henry Kissinger, going back and forth trying to be the mediator, the diplomat. It's not quite as stark as that.
I think what we have to recognize as well—and this is where B'nai Brith has come in this—and as I've said, in many ways I've led the attempt to reconsider it.... I've tried to speak to my colleagues and other Jewish organizations who have been equally interested in the past, to try to reason through the problems with section 13 and where we go.
I think we have to recognize one thing. There's an expression, “You jump the shark”, and that appears to have happened with section 13, whether for better or worse. For section 13 to work, for the mediation to work, for the idea of section 13 to be a principle that we all can look to—the principles of section 13 are equality, tolerance, not trying to punish somebody for saying the wrong thing, but trying to work together to find a way to have a safe zone for every Canadian. People have lost respect for it.
I'm the last person who needs to tell parliamentarians about the importance of public respect for the law. I've written articles. I've been skewered in the press for things I've said defending that kind of legislation. I have to recognize as well that we're at the point now where the feeling is that because of the abuse of concerns, and there have been real abuses thus far, really at every level, not because the people who are trying to administer the law are trying to be abusive—most of the time they're not. I've spoken to these people—commissioners, provincial and federal human rights commissioners, the lawyers, and the people who are trying to administer the law—and they want to do the right thing.
View Brent Rathgeber Profile
Ind. (AB)
Thank you, Mr. Chair.
Thank you to the witnesses from B'nai Brith for the very cogent and measured approach that you're taking with respect to this issue. I understand that it's a divisive issue within the Jewish community. Quite frankly, I was caught a little off guard when you opened your comments by saying you support this legislation. That advocacy and support is going to change the basis of my questioning.
I guess you will agree with me that the current section 13 of the human rights code captures speech that is not truly hateful, that is if one accepts the Criminal Code definition of true hateful speech in section 319, that which advocates actual harm to persons or persons' properties of an identifiable group. Would you agree with me that the current section 13 captures speech that is offensive but not hateful? Would you agree with that characterization?
David Matas
View David Matas Profile
David Matas
2012-04-26 11:28
The actual terminology in the law is “likely to incite hatred”. The issue that has arisen here is that there is no intent requirement; there's an impact requirement.
As I said in answer to your previous colleague, our concern is not actually with the substantive content of the text, nor with the decisions of the tribunal. We do agree there's room for a civil remedy.
The problem we have with this provision, as with the provincial ones as well, is procedure. There is a lower threshold. There is no attorney general's consent. There's no requirement of intent. Anybody can complain. There are no costs to the complainant. The commission investigates on its own. The complainant doesn't have to appear. It becomes very easy to abuse.
What we have seen is substantive abuse in various jurisdictions, including the federal one, and that's the problem.
Marvin Kurz
View Marvin Kurz Profile
Marvin Kurz
2012-04-26 11:29
One thing I've got to add is that the definition of the term “hatred” in both pieces of legislation is the same. It's the definition the Supreme Court used in its trilogy of 1990 cases.
As well, if you look at the Moon report, its first recommendation is to call for the abolition of section 13. He says that the actual cases decided under section 13 are all the worst of the worst.
I remember having a conversation with Professor Moon and going through every case, and he admitted that each one of them was the worst of the worst. Almost every one of them could probably be prosecuted criminally.
The intent under section 13 was to avoid the criminal prosecution, to try to deal with it in a different way and to tell people to stop.
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