1st Session, 41st Parliament,
Volume 149, Issue 181
Wednesday, June 26, 2013
The Honourable Noël A. Kinsella, Speaker
Canadian Human Rights Act
Bill to Amend—Third Reading
Hon. Mobina S. B. Jaffer: Honourable senators, before I start speaking on Bill C-304, I want to take this opportunity to thank the members of the Human Rights Committee — the deputy chair of the committee, Senator Salma Ataullahjan, as well as Senator Andreychuk, Senator Munson, Senator White, Senator Hubley, Senator Zimmer, Senator Ngo and Senator Oh — for all the support they have given in the work we do. We certainly faced some big challenges. We work very much in a consensus way, and I want to thank each of the members.
For these hearings, I want to thank Senators Fraser, Eggleton and Baker for the support they gave us yesterday when we were studying this very serious issue.
I also want to take the opportunity to thank the clerk of the committee, Daniel Charbonneau, and his assistant, Debbie Larocque. Senators, all weekend they worked hard to schedule witnesses. Throughout the year they worked very hard on behalf of the committee, and I want to thank them.
Senators, when we look at Bill C-304, I humbly ask you to think about what our role is here. Members in the other place are elected by a majority. They look at things through a different lens than we do. Time and again, we are told that we are here to protect the rights of minorities. If ever there was an issue of protecting rights for minorities, honourable senators, I humbly ask you to think very carefully before you vote for this bill, because it truly is an issue of protecting rights for minorities.
Some Hon. Senators: Hear, hear.
Senator Jaffer: Honourable senators, Bill C-304 would repeal section 13 of the Canadian Human Rights Act. As you know, section 13 identifies hate messages as a discriminatory practice. It is based on the understanding that hateful expression does not constitute an acceptable exercise of freedom in our peaceful democratic society.
Honourable senators, I voted against the principle of Bill C-304 at second reading because I argued then that hate messages are an assault on human dignity. More than cause offence, they affect the basic social standing of individuals within society.
Section 13 is not about assuaging hurt feelings; it is designed to remedy a situation where members of vulnerable groups have been robbed of their dignity. It is intended to promote the restoration and preservation of justice through reconciliation and education.
For over a year, honourable senators, our Human Rights Committee conducted a study on cyberbullying. I will not forget for as long as I live the young boy with red hair who appeared in camera before our committee. He told us of how a Facebook group had been created to promote hate for people with red hair. I have to tell you that I never knew people with red hair could be persecuted. For me, I always wanted red hair, so I was shocked when this young man said that having red hair is not such a good thing at school.
Honourable senators, he told us it is called “Kick a Ginger Day.” Kids with orange hair would get kicked on that day. “I never went to school on that day. I do not think this is right.” When this young man spoke to us in camera, we were shocked that a young man in a Canadian school could suffer from hate messages through the Internet.
Hateful messages have a real effect on the dignity of the person whom they target. As Mark Toews, an executive member of the constitutional and human rights law section at the Canadian Bar Association told our Standing Senate Committee on Human Rights yesterday:
A culture of prejudice and discrimination is created when the dissemination of hateful and intolerant views is allowed unchecked. It starts with isolated comments, usually against vulnerable groups. Eventually, listeners and bystanders, after hearing the views often enough, begin to accept the comments and start to become fearful of the targeted group, leading to prejudice, discrimination and greater tragic results.
Honourable senators, as you know, our Human Rights Committee held several hours of hearings on Bill C-304 yesterday. We heard reasonable concerns about how Canadian human rights law addresses hate messages and hateful expression more generally. For example, section 54 of the Canadian Human Rights Act includes two penalty provisions, which, as the Canadian Human Rights Commission pointed out in its submission to our committee, “are not consistent with the act’s core remedial and conciliatory function.”
I agree with the Canadian Human Rights Commission and the Canadian Bar Association: We should not have penalties in this legislation.
We know that our colleagues Senator Kinsella and Senator Nolin also highlighted this inconsistency in their second reading speeches. Bill C-304 would amend section 54, and I agree with that amendment insofar as it strikes punitive measures from the Canadian Human Rights Act.
Our laws should promote reconciliation, restoration and education above all, honourable senators. They are essential tools to prevent discrimination and to confront hate. That same premise leads me to disagree that the best way to improve freedom and protection against hate is to repeal section 13.
At the committee hearing, Senator Eggleton asked witnesses to take a forward-thinking approach and to identify ways that Canadian human rights legislation could be strengthened to deal with hate messages. Professor Mahoney from the University of Calgary responded:
Human rights legislation puts the onus on individuals to take a claim. In other words, it does not recognize that people are members of groups. When a person is attacked individually, their group is attacked as well. In order to achieve a human rights remedy, every individual must go before a Human Rights Commission and say: This is what happened to me, because I was Jewish, because I was a woman, because I was gay or because I was a fill-in-the- blank.
It seems to me it would improve our human rights legislation if the legislation recognized group harms in addition to individual harms. I think that would be a major, valuable change to the present state of affairs in human rights legislation.
Senator Eggleton through his questions raised an important point. We are at a juncture, honourable senators. Reviewing Bill C-304 should prompt us to improve our human rights laws, perhaps in the way that Professor Mahoney discussed and perhaps in other ways, too.
My opposition to Bill C-304, and more specifically to the repeal of section 13, does not mean I believe that Canadian human rights legislation cannot be improved. There is plenty of room for improvement, but we all know as legislators that laws are fluid and we have to improve them from time to time. However, that does not mean we should repeal a law without improving it. Nothing would be served by that. Repealing sections of fundamental importance such as section 13 means leaving vulnerable groups unprotected. It is a method of reform that we cannot risk to undertake.
Senator Baker initiated an exchange with Mr. Toews of the Canadian Bar Association on the constitutionality of Bill C-304. Senator Baker asked:
… I would like for you to verify that although the mover of the motion mentioned four times that it violated the Canadian Charter, we have had every court of final decision that I know of — namely, the Supreme Court of Canada — say that this section is perfectly constitutional. First, am I correct in saying that?
Mr. Toews responded:
That is absolutely correct. It is constitutional. The courts could not be any clearer on that point. These issues have been raised a number of times, and the Supreme Court has repeatedly and unequivocally said this is constitutional; it does not violate the Charter. It violates freedom of expression, but it is protected by section 1, which is an important tool in our Charter that says that it is perfectly justifiable, in a free and democratic society, to have these provisions. No, it does not violate the Charter.
As the Canadian Bar Association pointed out in its written submission, repealing section 13 of the Canadian Human Rights Act means that hate messages would have to meet the higher threshold of a Criminal Code offence. All acts, though offensive, do not meet the test.
As honourable senators know, the Criminal Code requires proof beyond a reasonable doubt that public statements by the accused incite hatred against an identifiable group to such an extent they will likely lead to a breach of the peace. This is a much higher burden of proof compared to section 13 of the Canadian Human Rights Act where it must only be proven by a balance of probabilities that public statements will lead to a breach of the peace.
As a result, according to the Canadian Bar Association, “Canadians can expect to be subjected to a plethora of hateful messages and communications, and a corresponding loss of civility, tolerance and respect in Canadian society.”
Honourable senators, there is a need for both civil and criminal prohibitions on hate speech in Canada. Section 13 of the Canadian Human Rights Act and section 319 of the Criminal Code serve very different purposes. Section 13 applies to conduct that falls short of criminal behaviour but that, nevertheless, poses harm to vulnerable target groups.
Senator Baker set that out very clearly earlier on in the case in Saskatchewan, so I will not repeat that.
Section 13, and again I quote the Canadian Bar Association:
… protects minorities from psychological harm caused by the dissemination of racial views which inevitably result in prejudice, discrimination and the potential of physical violence.
They set out prejudice, discrimination and the potential of physical violence.
Honourable senators, we are not debating hurt feelings or subjective interpretations of hate. Bill C-304 proposes to repeal a section of the Canadian Human Rights Act that prohibits messages that result in prejudice, discrimination and the potential for physical violence.
Honourable senators, I have spent a lot of time thinking about this. I also have spent a lot of time thinking about how I should convey to my colleagues, who are very nurturing of me, and I have a very warm place in the Senate. I have all my staff sitting there. We have discussed whether I should talk about what it is like to be who I am in Canada.
Honourable senators, I will not talk about my experiences under the British Raj. I will not talk about what happened to us under Idi Amin. I will not talk about what happened when we came here, because I will have many opportunities to talk about that another day.
Honourable senators, all of us here have issues. All of us here have health issues, financial issues; there is not one senator here who is not dealing with issues of family and the challenges of a family.
My family has the issue of colour. My family has had to deal with that on a daily basis. I have to tell honourable senators that my father, who was a member of Parliament in Uganda, had opportunities to go to many places when we became refugees. He chose Canada because he felt that we — and his great- grandchildren — would never have to leave Canada. Sadly, that does not mean that we have not had to deal with issues of what it is like to be hated.
I am very blessed: I have two children. I have a biological son, whom I love dearly, and I have an adopted daughter who is my life. I was only able to have one child, and God blessed me with a daughter I could adopt. My daughter is from Port Hardy, British Columbia. My daughter is of mixed race. One could call her African, one could call her dark. When she was six years old, I caught my daughter in the bathroom bleaching herself. She wanted to be White because she hated her friends hating her. This is Canada we are talking about. My daughter was in the best school in my city, a private school. My daughter was not invited to birthday parties, and that can happen to many of us so that is not unusual, but the principal called me after she had been in the school for six years. It is not often that a private school will ask that one’s child be taken away, because they like the fees. We were very involved parents, but the principal said he could not handle the hate our daughter was facing in the school.
Honourable senators, I stand today to really open myself up because I want my colleagues to know what it is like to be hated out there. The worst part is not when one is hated, because one can deal with it, but when one’s child faces hatred. I cannot tell honourable senators what it is like for my husband and my son when my daughter comes home. The only time I have seen my husband cry is when he sees my daughter’s pain.
I am being very open with honourable senators because I want my colleagues to understand that there are Canadians who suffer hate. It may not be the criminal standard, but my daughter had girlfriends talk about her on the computer, phone each other, and on the Internet they talked about how much they hated her, how they hated her colour. She was Black.
Honourable senators, on a lighter note, I changed her school. She went to St. Thomas Aquinas, where she was very happy, and she was in the religion program. She was always getting the best marks and she was in an advanced placement in religious studies. My mother used to say she is going to become a nun because she is in a Catholic school. I would ask my daughter and she would say, “Mom, Catholic rituals are the same as ours. I know this; I have grown up with this. I know what they are doing; there is no magic to it.” Many of her friends became nuns; my daughter did not.
I am just saying there is always a good story when one makes a change. I also want honourable senators to know that I am a colleague, and I am not the only one here, who goes home. My daughter became a model, and she is drop-dead beautiful — I am not biased, of course. I always tell her, “God’s revenge is how beautiful you are.”
However, I can tell honourable senators that if she goes out with her White boyfriend, the hatred she gets — I will not say more. It is not a good thing to be Black in Canada.
Honourable senators, I have shared something very close to my heart, after many chats with my staff as to whether I should open myself up. I do this, I cry out to do this. Do not be deaf. I am not saying that this legislation should not be changed. I am not saying that we should not study it further. We should. However, let us take the time. What is the rush? Even the sponsor said the minister will take a year to fix things before this bill comes into place. Let us take the time to bring really good legislation that protects all Canadians. That is all I am asking.
Honourable senators, when I was young my mother wanted me to play the piano and my father wanted me to be a politician. Honourable senators can see what I became. My mother always told me to practise the piano and I would always annoy her. Sometimes I would play only the black keys to get really terrible harmonies, and sometimes only the white keys. My mother would say to me — God bless her, she has left us now — “To have harmony you have to play the black keys and the white keys.” Only now, as a politician, after my mother has left me, have I realized what she meant.
I stand before honourable senators to say that if we really want harmony in our society, every single person should feel that they are part of our society and not hated because of their colour, their religion or the way they look.
The Criminal Code deals with convictions for hate propaganda containing a high evidentiary threshold because a conviction for hate speech, like any other criminal offence, carries social stigma and a criminal record. Section 13 ensures an alternative mechanism for responding to hate messages. With section 13, the Canadian Bar Association made it very clear that we heal societies and that we find a framework for people to reconcile the mechanisms intended to promote restorative justice, reconciliation and education. We should work to improve the ability of our laws to restore justice, facilitate reconciliation and promote human rights education.
Instead, Bill C-304 would eliminate the civil recourse for addressing hate messages. It disregards the important role that human rights tribunals play in Canada. According to the Canadian Bar Association, human rights tribunals provide “a forum where valid complaints from individuals and target groups who have suffered discrimination can be heard and justice dispensed in a fair and sensitive manner. They also play a significant role in public education and addressing discriminatory behaviour, such as hate speech, before it rises to the criminal level.”
As senators, we need to tackle issues of hate before they come to fruition. Human rights tribunals will help us to achieve that goal and so we will be retaining section 13 of the Canadian Human Rights Act.
Honourable senators, at second reading, Senator Kinsella said:
It seems to me that we would want to look at the current section 13, to which Bill C-304 seeks to provide an amendment, in terms of what motivated us when we dealt with the cyberbullying issue. Do we really want to have a statutory provision to deal with discrimination on the Internet?
Honourable senators, I have given a lot of thought to what Senator Kinsella said in his speech in February. I know that Senator Kinsella’s question prompted reflection of several other Human Rights Committee members who worked hard on our cyberbullying study.
At our hearing on Bill C-304, Senator Hubley said:
This committee has studied cyberbullying and we know the dire consequences, in many cases, for Canadian children and youth. Are we sending the wrong message if we repeal section 13?
The response she received was, “Yes, absolutely.”
Honourable senators, if we adopt Bill C-304, we will take away a useful tool to solve one of the greatest dangers facing young people today, and that is cyberbullying. At our Standing Senate Committee on Legal and Constitutional Affairs, government sponsors consistently tout the need for more tools to deal with various criminal justice issues.
Honourable senators will remember that I asked Senator White why we needed a certain piece of legislation, because we already had that in the code. He is a highly respected person with regard to such issues, and he said that it does not hurt to have another tool.
Honourable senators, I do not know what is going on. In the Legal Committee we are saying we need all kinds of tools, and in the Human Rights Committee we are taking away the tools. I am confused by this.
One of the things we know is that cyberbullying is not a criminal justice issue, honourable senators; it is a human rights issue. However, why should we take away tools to address cyberbullying?
During our committee hearings, one child told us:
The biggest difference between being bullied while in the classroom or playground and being cyberbullied is that we can be targets of cyberbullying 24/7, and that makes you feel as if there is no safe place…. That puts a huge dent in your life, because you are always pretty shaken up by this and kind of scared.
What this child described is not hurt feelings; she described an assault on dignity. Where that kind of hatred is based on a prohibited ground of discrimination, section 13 could be a valuable tool in addressing this human rights violation in a way that restores and promotes justice.
Another young person told our committee about how quickly cyberbullying can spiral out of control. She said:
It was by birthday… and one of my best friends — well I thought she was my best friend — posted on Facebook and tagged me in it, so she knew everyone I knew and everyone she knew could see it. She posted [a lie about something shocking that she said I did.] Then hundreds of people started commenting and liking it and saying really mean things that about me, and she was deleting all the things that were supporting me or trying to tell her to take it down. People that I worked for saw it; my whole family saw it, all my aunties and uncles. Everyone saw it and everyone in town knew too.
I [have] been on both ends of spectrum. I have said things. I have been the bully on the Internet and have had things said to me and sent to me. I see it happen on an everyday basis. It makes me sad because the Internet is a tool meant to connect people and it is meant to expand what is outside our immediate community. It is easy to pick up the phone or write something on the keyboard or say something rude or mean. A lot of us have become so desensitized to it, but it makes an impact and people do remember. It really has quite an effect on how I interact with people and how I live my day-to-day life…. I have come to terms with it now and am ok with it but it still hurts and it hurt a lot worse then.
Honourable senators, one of the things we learned at the Human Rights Committee is that one person, on the same day, can be a bully, be bullied and be a bystander. The young people do not want their friends to be sent to jail; they want reconciliation. This does not mean that section 13 could not be improved to address instances of cyberbullying where hate is a factor. We could take the time to find out. We could take the time to come up with a better solution. Repealing the section is a lost opportunity. None of the children who appeared before our committee — not one, and there were many — said that we should punish people who engage in cyberbullying. No one said we should send a child to jail, yet debate goes on about introducing laws in the Criminal Code to deal with cyberbullying.
As I said before, honourable senators, cyberbullying is not a criminal justice issue; it is a human rights issue. We should view human rights law as a vehicle to educate, to restore justice and to protect vulnerable groups. Adopting Bill C-304 embraces a punitive approach on the messages going forward. Rather than considering ways to build communities and engage disparate parties in dialogue, we would resort exclusively to penal sections of the Criminal Code.
How many jails are we going to open? How many 16-year-olds will we send to jail? We have other ways of dealing with cyberbullying.
I will say this for the children who appeared before our committee to talk about cyberbullying, because they could not vote in the last election and they will not vote in the next election, and I believe that their voices should be heard in our Parliament. We are a chamber that looks after the rights of minorities. I heard them say: Do not punish us; teach us. Do not exclude us; involve us. Do not separate us; bring us together to resolve our differences. Do not ignore hate; confront ignorance and foster acceptance. Do not belittle the harm that hate causes. Recognize the profound effect that it has on our lives. Do not disregard our right to health and to happiness. No measure of freedom is gained by hurting someone else.
Honourable senators, supporters of Bill C-304 have said that the Criminal Code can protect Canadians against hate propaganda even after the hate messages section of the Canadian Human Rights Act is repealed. However, the hate propaganda sections of the Criminal Code do not protect any section of the public distinguished by age, sex or disability. In the Criminal Code of Canada, there is nothing to protect people by virtue of age, sex or disability.
Senator Fraser asked during the committee hearings:
If we abolish section 13, which does protect against discrimination against women, before we get around to clearing up the Criminal Code, then are we not in a breach of our obligations under, notably, the Convention for the Elimination of All Forms of Discrimination against Women?
As Senator Munson stated at our committee hearings:
By repealing section 13, Parliament will have failed both Canadians and the international community.
The Internet knows no borders. Professor Jane Bailey, from the University of Ottawa, shared with our committee examples of hate messages directed toward women on the Internet:
This includes things like reminder — insert the person’s name — deserves to be raped; fake postings suggesting that these women provided sexual services in exchange for grades; women who were labeled Jew bitches clearly deserving of being raped; and women being listed in threads labeled “which female Yale law school students would you sodomize?”
These are fundamental affronts to human dignity, honourable senators. They are not simply offensive messages. They cause real damages. They are hateful. They destroy the people against whom it is directed; they destroy the families against whom it is directed; and they destroy our communities against whom it is directed.
At present, the Criminal Code does not protect women against hate propaganda, nor does it protect persons discriminated against on the basis of age or disability.
As Professor Bailey pointed out:
Without section 13, equality-seeking groups such as women, persons with disabilities and those targeted on the basis of intersections between these and other axes of discrimination, would be left unprotected because the Criminal Code provisions do not include them.
Let me be clear: If we pass Bill C-304, women will no longer be afforded protection from hate propaganda under Canadian law. If we pass Bill C-304, our elders and our children will no longer be afforded protection from hate propaganda under Canadian law. If we pass Bill C-304, persons with disabilities will no longer be afforded protection from hate propaganda under the Canadian law.
Honourable senators, even the sponsor of the bill said that this bill will not come into force until the minister has one year to fix it. What kind of thing is that? You pass a bill and then you give the minister a year to fix it? Why would you do that?
Honourable senators, I urge you: Let us work on this. Let us fix some things. Let us support our government, so that we can come up with a good proposal when we come back. What is the hurry? Even if this bill is passed, for one year nothing will happen.
Motion in Amendment
Hon. Mobina S. B. Jaffer: Accordingly, honourable senators, if you do decide to pass this bill, I move:
That Bill C-304 be not now read a third time, but that it be amended,
(a) in clause 1, on page 1, by deleting lines 4 to 11;
(b) in clause 2, on page 1, by replacing line 12 with the following:
“1. Subsection 13(1) of the Canadian Human Rights Act is replaced by the following:
13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of any of the following prohibited grounds of discrimination, namely, age, sex and disability.”;
(c) in clause 3, on page 1, by deleting lines 13 to 19;
(d) in clause 4,
(i) on page 1, by deleting lines 20 to 26, and
(ii) on page 2, by deleting lines 1 to 4;
(e) in clause 5, on page 2, by deleting lines 5 to 12; and
(f) in clause 6, on page 2, by replacing line 13 with the following:
“2. This Act comes into force on the day“.
Honourable senators, I have made myself very vulnerable today on this bill, because I honestly believe that we are starting to have another kind of society. I came to this country knowing that we were all equal. Please do not change the equation.
Some Hon. Senators: Hear, hear.
The Hon. the Speaker: On debate.
Hon. Jane Cordy: Before we get to debate, would the honourable senator take a question?
Senator Jaffer: Yes.
Senator Cordy: Thank you very much. That was certainly an excellent speech. I think I would like your mother when she said to play the black keys and white keys to get perfect harmony. I am a Paul McCartney fan, so for me it was:
Ebony and ivory live together in perfect harmony
Side by side on my piano keyboard, oh, Lord, why don’t we?
An Hon. Senator: Are you singing it?
Senator Cordy: Honourable senators, I will spare you my singing it. I will just read the lyrics; thank you. I did sing in the Holy Angels Choir, though, Senator White.
The honourable senator’s Human Rights Committee did an excellent report on cyberbullying. I sent it to schools in Nova Scotia. I thought it was excellent. In Nova Scotia, we know the Rehtaeh Parsons case has been very much in the news because she was bullied online
I am wondering if the honourable senator believes that this bill goes against all the work that her committee did on cyberbullying.
Senator Jaffer: I thank the honourable senator very much for that question.
I would be remiss if I did not give credit to Senator Ataullahjan for suggesting this very timely study. She worked very hard on this study. In fact, all of our committee members worked very hard on this study.
When we hear all the discourse around us about what should be done about cyberbullying and at the same time we are debating this motion, I sometimes feel that I do not know who has read our report. That is all I can say.