Debates of the Senate (Hansard)

1st Session, 41st Parliament,
Volume 148, Issue 110

Tuesday, October 23, 2012
The Honourable Pierre Claude Nolin, Acting Speaker

Canadian Human Rights Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Finley, seconded by the Honourable Senator Frum, for the second reading of Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom).

Hon. Mobina S. B. Jaffer: Honourable senators, Bill C-304 is an act to amend the Canadian Human Rights Act. The debate on this bill is about hate messages. The debate is about preserving three central principles that frame the Canadian Human Rights Act: equal opportunity, accommodation, and without discrimination. These are also terms that frame this debate.

In a 2009 speech entitled “Human Rights and History’s Judgment,” Justice Rosalie Abella said:

We were supposed to have learned three indelible lessons from the concentration camps of Europe. First, indifference is injustice’s incubator. Second, it’s not just what you stand for, it’s is what you stand up for. And third, we must never forget how the world looks to those who are vulnerable.

Sadly, Bill C-304, An Act to amend the Canadian Human Rights Act, forgets these lessons. It would repeal a provision that identifies hate messages as a discriminatory practice. It would erode the fundamentally Canadian values that define our society.

There are three points that I want to make today. First, indifference to hate messages does not promote equal opportunity, accommodation, without discrimination. Second, hateful expression is an assault on human dignity. Third, hate messages target the most vulnerable members of our society.

I begin with my first point: Indifference to hate messages does not promote equal opportunity, accommodation, without discrimination.

Honourable senators, we must confront hate. Economists talk about the theoretical power of the invisible hand. Proponents of Bill C-304 point to this example and suggest that the invisible hand will ensure that poorer ideas will not last. However, economists also tell us that perfect markets only exist on blackboards and in textbooks. In the real world, excesses and inequities abound and they sometimes lead to market failure. In the real world, hateful intolerance and indifference persist, and they sometimes lead to indelible human rights atrocities.

Section 13 of the Canadian Human Rights Act, in keeping with the true intent of a perfect market and the spirit of Canadians’ respect for human dignity, does not limit profits; it reduces inequities. It acknowledges that hateful intolerance that does not meet the Criminal Code standard may nonetheless breach a person’s incontestable right to human dignity. It recognizes that indifference to hate, a deferment of society’s moral obligation to protect its most vulnerable members, implicitly rejects commitment to ensuring equal opportunity, accommodation, without discrimination, for all.

My first point essentially mirrors Justice Abella’s first lesson: Indifference is injustice’s incubator.

My second point addresses that most fundamental right, the right to human dignity.

Professor Jeremy Waldron of New York University and Oxford University defines the harm in hate speech as an assault on dignity. Speech that assaults dignity is different from speech that causes offence. Whereas offence is a subjective reaction, dignity concerns the basic social standing of individuals within society. The justness of an individual’s social standing corresponds to the same human rights principles that frame the Canadian Human Rights Act: equal opportunity, accommodation, without discrimination.

Honourable senators, hateful expression is not an exercise of freedom; it is an assault on human dignity.

As Waldron noted in his 2009 Oliver Wendell Holmes lectures delivered at Harvard Law School, the Universal Declaration of Human Rights begins its preamble with the strong assertion that:

. . . recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world . . .

The International Covenant on Civil and Political Rights states that the rights it protects “derive from the inherent dignity of the human person.” Dignity is inherent to every person, and right to dignity is natural law. Canadians understand, believe in and value this right. That is why a Canadian, John Peters Humphrey, was the declaration’s principal drafter and why Canada was one of the 48 member states at the UN General Assembly that voted to adopt the declaration.

The primacy of human dignity is fundamental to our Canadian identity. Human dignity is the only right that Canadian law does not limit under any circumstances. Section 26 of the Canadian Charter of Rights and Freedoms affirms that:

. . . certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

In other words, Canada’s constitution does not allow for any freedom to deny a person’s right to human dignity. Freedom without rights is no freedom at all.

The Canadian Bar Association agrees. In a January 2010 submission, the CBA wrote:

. . . in Canada, freedom of expression is not an absolute value. It is subject to legal limitations, the most obvious being laws against defamation and slander. The CBA endorses the view that a properly drawn civil prohibition against the propagation of hate speech is also a reasonable limitation on freedom of expression.

More recently, honourable senators, this association of 37,000 jurists tells us that, should Bill C-304 pass:

. . . 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.

More than stand for human dignity, honourable senators, we must stand up against hate messages.

My third and final point builds on Justice Abella’s most essential lesson:

We must never forget how the world looks to those who are vulnerable.

Hate messages target the most vulnerable members of our society.

For example, the Criminal Code, as Senator Nancy Ruth pointed out in her remarks last June, does not protect women from hateful expression, yet we know without doubt that hate messages target women. In her submission to the Standing Committee on Justice and Human Rights of the other place, Professor Kathleen Mahoney said:

Sometimes women are not recognized as being targets of hate propaganda.

It’s important because women are not protected otherwise than in human rights legislation.

I’m thinking particularly about lesbians.

I’m thinking about black women and how they’ve been portrayed in hate speech.

I’m thinking about aboriginal women and how they’ve been degraded in various forms of hate speech.

I’m thinking about people with disabilities and how hate speech has promoted eugenics and euthanasia for this group of people.

Canadians’ right to human dignity is compromised by pervasive sexism and discrimination grounded in fear and hate.

In October 2010, 21-year-old Jeanine Blanchette and her 17-year-old girlfriend Chantal Dube were found dead in Orangeville, Ontario. The couple’s double suicide, Melissa Carroll of McMaster University observed, was “described by the media as losses that were inevitable.” Carroll further commented that:

It is this odd (non)reaction to these young adults’ deaths . . . speaks to what I understand to be a western fear of . . . young lesbianism . . .

Fear, hatred and suffering — these phenomena share a causal relationship. Fear, hatred and suffering become increasingly prevalent in a society that sometimes mistakes powerfully damaging discrimination for constructive debate. We should debate new ideas. We must not discriminate based on antediluvian prejudices.

New electronic media communications sometimes foster these prejudices. Since July 2012, a website created by a team from the University of Alberta’s Institute for Sexual Minority Studies and Services has counted more than 3.271 million Twitter posts that used the word “faggot.” During the same period, more than 1.161 million tweets used the phrase “so gay.” Another 1.161 million used the phrase “no homo,” and 452,000 used the word “dyke.” The website tagline reads

Homophobic language isn’t always meant to be hurtful, but how often do we use it without thinking?

The answer? A lot. Hate messages are ubiquitous. We need to do more to confront hate messages, not less.

To be clear, section 13 is not about hurtful or offensive comments, honourable senators. To quote Mark Freiman, president of Canadian Peres Center for Peace Foundation:

Its purpose is to protect society from the baleful consequences of those most dangerous messages.

It is about prohibiting communication that is likely to expose persons to hatred or contempt by reason of the fact that those persons are identifiable on the basis of a prohibited ground of discrimination. It is about promoting the inherent and unimpeachable right to human dignity. It is about the essence of the Canadian Human Rights Act — equal opportunity, accommodation, without discrimination.

These are essential functions that the Criminal Code cannot serve alone. Hate crimes, like the violent murder of Aaron Webster in British Columbia in 2001, are supported by the spread of hate messages. Hate messages lead, however indirectly, to hate crimes.

More than 4.5 million homophobic tweets call for us to consider the lives of lesbian, gay, bisexual and transgendered Canadians, honourable senators. How will passing this legislation affect the lives of vulnerable people?

Inspired by the satirical cartoon “South Park,” a Facebook group urged members to “kick a ginger” on November 20. I do not watch “South Park,” but I am told that the artistic intent was to satirically protest racism. Instead, last year, visceral hate was directed towards students with red hair, including 13-year-old Aaron Mishkin of British Columbia, who figures he was kicked about 80 times. Discrimination, racism and hate, despite advances, are so prevalent in our society that critical satire only adds fuel to the fire.

However, there is another lesson here: Any one of us can become vulnerable if hate is leveled against a minority group of which we are a member. If we do not act, the hate that vulnerable people are made to feel each day will consume us all.

Honourable senators, at second reading, we debate the principles at the heart of the bill. Today, I have shared with you three key messages regarding those principles. First, we cannot be indifferent to hate if we wish to promote equal opportunity, accommodation, without discrimination; second, hateful expression is an assault on our universal right to human dignity; and third, hate messages target the most vulnerable members of our society.

Senator Finley said something at the conclusion of his speech with which I profoundly agree, and I think it bears repeating. He said that we live in the greatest nation on earth. The closing French lyrics of our national anthem tell us why.

Et ta valeur, de foi trempée,

Protégera nos foyers et nos droits.

Protégera nos foyers et nos droits.

Canada’s valour, steeped in faith — which I take to mean steadfast compassion and love — will protect our homes and our rights.

Compassion promotes human dignity; love overwhelms hate. Honourable senators, this is a Canadian promise that we must honour.

Honourable senators, if you will allow me, I would like to share some personal experiences with you. As you all know, I am a refugee to this country. As a refugee in 1972, when we were thrown out — may I have five more minutes?

The Hon. the Acting Speaker: Is permission granted for five more minutes?

Hon. Senators: Agreed.

Senator Jaffer: When we were being thrown out of Uganda, I saw the hateful eyes of the people who were throwing us out, and I can tell you that that will always be with me. In 2001, when I first became a senator, Aaron Webster was killed in Stanley Park, a park that all people from British Columbia love. It was a park where, as a Beaver leader, I took my Beavers and Cubs for a night hike. In the same area where I used to take my Beavers and Cubs, Aaron Webster was tragically kicked to death. His only sin or his only problem was that he was gay. Just for being gay, he was kicked to death in a park where I took my young Cubs and Beavers for hikes at night. That is what hate can do.

Honourable senators, as you know, the Human Rights Committee is studying the cyberbullying dilemma in our country. Each member of the committee will tell you that a young boy came to our in camera committee meeting and said that he is being sent hateful messages because he has ginger hair. This young boy is destroyed, and his only problem is that he has hateful hair.

Honourable senators, we came to this place to protect the rights of minorities. We came to this place to protect the rights of Canadians. Today I stand in front of you and say that we have to continue to protect the rights of Canadians.

(On motion of Senator Carignan, debate adjourned.)