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27/10/2009

Remarks by Chief Commissioner, Jennifer Lynch, Q.C., as a witness before the Standing Committee on Justice and Human Rights - October 26, 2009.

Speaking notes for

Jennifer Lynch, Q.C.

Chief Commissioner
of the
Canadian Human Rights Commission

as a witness before the Standing Committee on Justice and Human Rights

Monday, October 26, 2009
Ottawa, Ontario

Check against delivery

Mr. Chair, honourable members,

I am pleased to have received the invitation of the Committee to contribute to your review of the Canadian Human Rights Commission and its application and interpretation of section 13 of the Canadian Human Rights Act.

I would like to introduce my colleague, Philippe Dufresne, Senior Counsel at the Commission.

The challenge of ensuring the right to freedom of expression and the right to equality and dignity is not new. The most recent debate has focused on the role of section 13 of the Canadian Human Rights Act, and has engaged many Canadians for well over a year.

From the outset, the Commission’s responsibility has been to lead and inform the debate by providing a comprehensive and balanced analysis of this obviously complex issue. Our appearance before this Committee today is an important step in our efforts to fulfill this responsibility.

Parliamentarians adopted the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act to recognize the equal status of every individual in Canada. Parliament’s vision for Canada created the framework for the most open, inclusive and culturally diverse country in the world. Our commitment to equality and dignity has shaped our personal and collective identities. It has contributed to our progress and prosperity. It is part of what makes us Canadian.

This approach to creating a harmonious society is not ours alone. For over sixty years, the Universal Declaration of Human Rights has united the world in recognizing that: “All human beings are born free and equal in dignity and rights.”

In 1977 the Canadian Human Rights Commission was mandated by Parliament to champion these fundamental values.

Today, our Act still brings a powerful vision to Canada, brilliantly articulated in section 2: The purpose of this Act is to give effect to the principle that every individual should have the right equal with others to make for themselves the lives that they are able and wish to have – free from discrimination.

This is what inspires me.

The Commission provides access to justice so that the most vulnerable may have their voices heard. Thousands upon thousands of complaints have been resolved. Here are some examples of how life has been improved:

• Persons with disabilities now have greater access to daily activities. For example:
  • public transportation is now more accessible;
  • bank machines provide audible output; and
  • television broadcasts include closed captioning.
• Over 700,000 Aboriginal persons now have full protection under our Act.
• Every worker now has the right to be free from harassment in the workplace – whether sexual, racial, or religious.
• Mothers can raise their families without fear of losing their jobs.

In spite of Canadians’ collective human rights accomplishments, forms of discrimination will continue to exist. This one area in particular requires continued vigilance. Canadians are still the targets of egregious acts of discrimination.

Let me be clear. Hate propaganda, sadly, is alive and well. Hateful expression aimed at groups of people continues to pose a threat to the harmony of our communities and undermines equality. Equality is guaranteed in the Canadian Charter of Rights and Freedoms.

It is therefore ironic that some point to the same Charter as providing an absolute right to freedom of expression. No right is absolute. When rights are in conflict, legislators must find a way to balance those rights.

This debate has already been decided, in part. There are limits on freedom of expression:

• Canada’s libel laws are one example.
• Canada has agreed, by signing and ratifying international treaties, to place limits on freedom of expression where that expression is hateful.
• In the 1970’s, Parliament created the Canadian approach to regulating hate messages in the Criminal Code and with section 13 of the Canadian Human Rights Act. In 2001, Parliament amended the Act to include hate messages on the Internet.

The Commission has narrowly applied the law in accordance with a Supreme Court of Canada ruling and other jurisprudence. For a message to be prohibited by section 13 as “hate,” it must involve, and I quote: “extreme ill will,” “unusually strong and deep-felt emotions of detestation, calumny and vilification,” that are “ardent and extreme in nature.”

In fact, a prominent complaint filed with the Canadian Commission in 2007 is a prime example of how the Commission has properly applied this law.

The complaint was brought against Rogers Communications, owner of Maclean’s magazine, by complainants who believed that some content in the magazine constituted hate messaging.

The Canadian Human Rights Commission dismissed the complaint citing that the impugned content did not meet the narrow definition of hate.

Let me quote from our decision:

“The writing is polemical, colourful and emphatic, and was obviously calculated to excite discussion and even offend certain readers, Muslim and non-Muslim alike.

Overall, however, the views expressed … when considered as a whole and in context, are not of an extreme nature as defined by the Supreme Court in the Taylor decision.”

This is the only complaint that we have ever received against mainstream media and we dismissed it. This clearly demonstrates that the Commission does not regulate offensive speech. Any other suggestion is false.

We have witnessed public discourse at its best – and at its worst. At its best, the debate has focused on improving Canada’s approach to balancing rights. Among examples of the worst, is testimony heard by this Committee earlier this month.

This Committee has heard unsubstantiated allegations. Simply put, these are baseless. This Committee has also heard the Commission and its employees described as “dress-up Nazis,” “psychologically disturbed,” “rogue,” and “brutal;” and compared to Saddam Hussein. This does nothing to advance society’s thinking on hateful expression.

Specifically – and it must be stated clearly – unsubstantiated personal attacks aimed at Commission investigators, Dean Steacy and Sandra Kozak, are irresponsible, hurtful and above all untrue.

I am proud of my staff. The people who work for the Commission are dedicated to promoting and protecting equality rights. We have the public interest firmly in our minds, and know that we sit in the position between competing sides in every complaint.

We will continue to do Parliament’s will without fear or favour.

It was with this dedication that the Commission set out to provide Parliament with a complete and balanced analysis of the issue of hate on the Internet.

This past June, following a year-long study, the Commission presented this analysis in the form of a Special Report to Parliament entitled, Freedom of Expression and Freedom from Hate in the Internet Age.

This process began with an independent review of section 13 by Professor Richard Moon of the University of Windsor, a legal expert on freedom of expression. Following Professor Moon’s submission, the Commission released his findings and sought feedback from stakeholders.

After concluding all of our research and consultations, the Canadian Human Rights Commission came to the conclusion that an administrative remedy for hate messages remains a vital component of Canada’s human rights system.

Some have posed the question: Are the Criminal Code and the Canadian Human Rights Act provisions against hate messages both necessary? In our view, the answer is yes.

The two laws address the issue of hateful expression in different ways. The Criminal Code seeks to punish the offender, while the Canadian Human Rights Act seeks to remove the hateful messages.

It is our considered opinion that section 13 of our Act provides a needed flexibility in the legal tools available to deal with hateful expression. The Criminal Code, because of its punitive nature, the need to prove intent, and the strict standard of proof, is not effective for every case. Section 13 of the Canadian Human Rights Act provides an alternative where the goal is remedial; it focuses on the message and not the individual.

Our Special Report to Parliament recommends amendments to section 13 and provides observations concerning the Criminal Code that will improve Canada’s ability to remove hate messages.

Make no mistake: hate messages strike at the core of equality. They are the root of intolerance and at the extreme, the impetus for violence. As Canadians, we cannot waver in our commitment to protecting each and every individual’s right to equality and dignity.

I look forward to answering your questions.