JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, February 25, 2003

Á

1105

The Chair (Hon. Andy Scott (Fredericton, Lib.))

Mr. Svend Robinson (Burnaby—Douglas, NDP)

Á

1110

Á

1115

Á

1120

The Chair

Mr. Donald Piragoff (Senior General Counsel, Criminal Law Policy Section, Department of Justice)

Á

1125

Á

1130

Á

1135

The Chair

Mr. Vic Toews (Provencher, Canadian Alliance)

Mr. Donald Piragoff

Á

1140

The Chair

Mr. Vic Toews

Mr. Donald Piragoff

The Chair

Mr. Svend Robinson

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

Mr. Svend Robinson

Mr. Richard Marceau

Á

1145

Mr. Svend Robinson

Mr. Richard Marceau

Mr. Svend Robinson

Mr. Richard Marceau

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance))

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ)

Mr. Donald Piragoff

Mr. Réal Ménard

Mr. Donald Piragoff

Á

1150

The Chair

Mr. Svend Robinson

Mr. Donald Piragoff

Mr. Svend Robinson

The Chair

Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP)

Mr. Donald Piragoff

Mr. Lorne Nystrom

Mr. Donald Piragoff

Mr. Lorne Nystrom

Á

1155

Mr. Donald Piragoff

Ms. Elisabeth Eid (Assistant Director and Senior Counsel, Human Rights Law Section, Department of Justice)

The Chair

Mr. Svend Robinson

Mr. Lorne Nystrom

Mr. Donald Piragoff

Mr. Lorne Nystrom

Mr. Donald Piragoff

Mr. Lorne Nystrom

Ms. Lisette Lafontaine (Senior Counsel, Criminal Law Policy Section, Department of Justice)

Â

1200

The Chair

Mr. Svend Robinson

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Donald Piragoff

Mr. Paul Harold Macklin

Mr. Donald Piragoff

Â

1205

Mr. Paul Harold Macklin

Mr. Donald Piragoff

Mr. Svend Robinson

Mr. Paul Harold Macklin

Mr. Paul Harold Macklin

Mr. Donald Piragoff

Mr. Paul Harold Macklin

Mr. Donald Piragoff

The Chair

Mr. Vic Toews

Â

1210

Mr. Donald Piragoff

Mr. Vic Toews

Mr. Donald Piragoff

Mr. Vic Toews

The Chair

Mr. Svend Robinson

The Chair

Mr. John McKay (Scarborough East, Lib.)

Mr. Donald Piragoff

Â

1215

Mr. John McKay

Mr. Donald Piragoff

Mr. John McKay

Mr. Donald Piragoff

Mr. John McKay

Mr. Donald Piragoff

Mr. John McKay

The Chair

Mr. Réal Ménard

Mr. Donald Piragoff

Mr. Réal Ménard

Mr. Donald Piragoff

Mr. Réal Ménard

Mr. Donald Piragoff

Mr. Svend Robinson

Â

1220

The Chair

The Chair

Ms. Hedy Fry (Vancouver Centre, Lib.)

Mr. Svend Robinson

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 022

l

2nd SESSION

l

37th PARLIAMENT

---

EVIDENCE

Tuesday, February 25, 2003

[Recorded by Electronic Apparatus]

Á  (1105)  

[English]

    The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call to order the 22nd meeting of the Standing Committee on Justice and Human Rights.

    Today, we'll be hearing from witnesses on Bill C-250, An Act to amend the Criminal Code (hate propaganda). As is our process, the sponsor of this private member's bill, Bill C-250, will present first. And we also have with us officials from the Department of Justice. They will also make a presentation, I understand, but I'll save their introductions until that time.

    Without further ado, I will turn it over to Mr. Robinson.

    Mr. Svend Robinson (Burnaby—Douglas, NDP): Thank you very much, Mr. Chair.

    First of all, I welcome this opportunity to address my bill, Bill C-250, with my colleagues on the justice committee. I welcome it particularly because, as is no secret, there has been a massive campaign around this bill. I think it's fair to say members on all sides of the House have received extensive correspondence, e-mails, letters, and phone calls, about the bill. I see today as an opportunity to hopefully explain precisely what the purpose of this bill is, what it seeks to achieve, and why I believe it's so important that members of the committee support the bill.

    First of all, I'll just give you a brief overview on the actual contents of the bill. As members will know, the bill has one clause in it. It's a very brief bill, and it would amend the Criminal Code sections on hate propaganda to include, in the definition of “identifiable group”, the words “sexual orientation”.

    To the best of my knowledge, the current provisions of the Criminal Code on hate propaganda have not been amended since they were originally enacted—and Donald Piragoff and the Justice officials might also address that. There are effectively two major components to the hate propaganda sections of the Criminal Code. Section 318 deals with advocating genocide. It criminalizes the advocacy of genocide, and the concept of genocide is defined in the Criminal Code. Section 319 is the section that deals with the public incitement of hatred, and that is again set out. I'm not going to read the section. Members have the section before them; I've circulated it to all members of the committee.

    The key point here is that the definition of “identifiable group” at this point is restricted to “any section of the public distinguished by colour, race, religion or ethnic origin.” Those are the grounds on which the police can act and ultimately on which the courts can act, in attempting to criminalize either the advocacy of genocide or the promotion of hatred or the public incitement of hatred.

    That law has been upheld. The hate propaganda section of the code has been upheld by the Supreme Court of Canada—in a narrow decision, a 4-3 decision—in the Jim Keegstra case. I'm sure all members of this committee are familiar with the Keegstra decision that came out of Alberta.

    I want to emphasize that in upholding the hate propaganda sections of the Criminal Code, the majority of four judges imposed some very tough conditions on when prosecutions could actually be successful. It's very important that members of the committee be clear on this. They said they are prepared to uphold this restriction on freedom of speech and freedom of expression, but only in very, very narrow and defined circumstances. I'm sure Mr. Piragoff will address those circumstances as well, but the court established a high threshold.

    What does it mean? What does it mean for gay and lesbian people to be excluded from the current provisions of the Criminal Code? Fundamentally, in many respects, it's to deny the reality of our lives—and I'm going to talk a bit about that in a couple of minutes. As well, as a number of studies have shown, including a study that was published in the McGill Law Journal by Jonathan Cohen, there are a number of impacts.

    One of the most serious impacts is the signal sent out. The absence of protection from hate propaganda basically signals to members of sexual minorities, to gay and lesbian people, that we are second-class citizens who aren't entitled to the equal protection of the law, to be equally protected from hatred directed at gay and lesbian people, as other groups currently included in the section are protected, namely on the grounds of colour, race, religion, or ethnic origin.

Á  (1110)  

    Hate crimes directed at gay and lesbian people are far too widespread in Canada. One of the problems is that statistics are actually still relatively scarce, but wherever these statistics have been collected—and most recently, just a couple of weeks ago, the Toronto Police Service issued its statistics—those statistics have shown time and again that gay people, lesbian people, and those perceived to be gay or lesbian—because in some cases, if you're in the wrong place at the wrong time or if you're perceived to be gay or lesbian, you're targeted even though you may not be gay or lesbian—are in fact principal targets for hate crimes.

    There are a number of studies on this. I'm not going to take up a lot of time, but I'll certainly refer members to a number of studies. A Simon Fraser University study of 420 gays and lesbians revealed that one-third had been physically assaulted, one-third had been threatened with assault more than once, and nearly 90% had experienced verbal abuse.

    So this is a problem. Hate crimes are a problem, and there are many examples of them. In the jurisdiction of the chair, for example, in Fredericton, I'm sure the chair will recall the beating of a young law student. Rob Peterson was in downtown Fredericton and was punched and kicked, given black eyes, had stitches on both sides of his face, and had a swollen nose. Why? Because he was gay. That's why he was beaten up. There was no other reason. In fact, there were taunts at him after he was attacked.

    In August of last year, the Canadian Association of Police Boards, an association of police boards across Canada, strongly and unanimously recommended to Parliament that the hate propaganda sections of the Criminal Code be amended to include sexual orientation. That board is a body made up of respected folks from across the political spectrum, and they deal with the day-to-day reality of hate crimes in their communities.

    And there are other examples as well. One of the most notorious that many of you will have heard about is Fred Phelps. Who is he? He's from Kansas. He has a website called www.godhatesfags.com. You might want to have a look at it if you're wondering what kind of literature it is that we're talking about in this country. Among other things, he has a picture posted of a young man who was beaten to death, a gay man named Matthew Shepherd. He has a picture of him burning in hell. On a number of occasions, Phelps has threatened to come to Canada.

    Through the clerk, I'll circulate a press release that he issued in October of last year, directed at me: “WBCto picket fag-infested Canadian Parliament, Antichrist MP Svend Robinson & the Burnaby idiots electing him -- and burn vile Maple Leaf flag”, and so on. When he has threatened to come to Canada to spread his hatred, the police have said they would love to be able to stop this guy. They'd love to be able to deal with him the way they can deal with anybody else who is spewing anti-Semitism or racism, for example. They could say, “You're not welcome. We don't want you spewing your hatred in our country.”

    The last time this Phelps character wanted to come to Canada, Pat Callaghan, the head of the Ottawa-Carleton Police Hate Crimes Unit, said—and I want to quote him, because this is one of the reasons why the bill is so important:

If this was done against a Catholic, a Jew or a black person, charges could be laid. If we had that legislation, we wouldn't have to put up with his nonsense on Monday. We could have told him, “If you show up and start spreading this hate, we'll arrest you.”

And why shouldn't the police have that power? If they can deal with hatred directed at religious and racial minorities, why is it that gay people are fair game? Right now, in the law, that is the effect.

    I can tell you this has an impact on gay youths as well. Imagine a young person, a teenager who is struggling with his or her sexual orientation, having to hear this kind of hatred that is too often spread at them. I had a mother come to me with a leaflet that she showed to me. She said, “I think my son is gay. I don't know for sure, but I think he is. He's struggling with this. Imagine what this is like for him to have to be told that he should be put to death.” That was what the leaflet said: that he should be put to death.

    It's no wonder so many gay and lesbian youths attempt suicide, and in some cases are successful, like the young man who jumped off the Pattullo Bridge. He was a young Surrey man. Chuck Cadman will recall the case. His name was Hamed Nastoh. He wasn't gay, but he was tormented by other students in his school, to the point where he couldn't take it anymore. So literature that tells people that they are less than human and that they deserve to be killed is what is targeted by this provision.

Á  (1115)  

    I've dealt with it myself. When I first came out publicly in 1988, my office was completely destroyed. Windows were broken, smashed, demolished, with hateful graffiti sprayed on my office. That was in 1988. It hasn't stopped much since then. And my experience is not unique. Too many gay people see the same kind of thing. I don't talk about it a lot, and I certainly don't talk about it a lot publicly. I want to tell you, though, that when I get bullets fired through my window, it's not a pleasant experience. I have a storefront office on Hastings Street in north Burnaby. When it's dark and a car goes by and I hear a crack on my window when I'm working late at night—as I did about three weeks ago—I don't know what it is. That time it was an egg, and as the car drove by I heard, “Hey, faggot!” It could have been a rock, it could have been a bullet, but it was an egg. I was lucky.

    That kind of hatred has to be dealt with, and that's what this bill is about. It's saying that, as a society, we want to ensure that hatred targeting gay and lesbian people is dealt with no less seriously than hatred targeting other minorities.

    As I said earlier, the statistics show gay and lesbian and other minorities are in fact targets—and I'm being told I have very little time, so I'm just going to make a couple of other points. In terms of a couple of the arguments that have been made, it has been suggested that this might somehow target religious texts. Frankly, that is utterly ludicrous and without any legal foundation whatsoever. In terms of what hatred actually means, the Supreme Court of Canada definition will respond to that—and we'll have a chance to discuss that; hopefully Mr. Piragoff will deal with it, since I don't have time. You have to be deliberately promoting hatred. There's a religious belief exemption within the Criminal Code itself. And finally, any prosecution requires the consent of the Attorney General.

    There's very broad support for this bill, including every Attorney General and Minister of Justice in Canada. The federal, provincial, and territorial Ministers of Justice passed a motion in the fall of 2001—they had done it previously in October 1998, but most recently in November 2001—agreeing to support this legislation unanimously. That's a fact. In fact, David Hancock, the Attorney General of Alberta, was quoted on the legislation as well, very clearly stating his support for the bill.

    Former Minister of Justice Anne McLellan said very clearly that she supported the changes. She said, “We will be the making necessary changes to the criminal code in the coming months.” That was in December 1999. In November 2002, Stephen Owen, the former Parliamentary Secretary to the Minister of Justice, said:

I am very pleased to be able to say tonight that the minister will be putting forward amendments to the Criminal Code of Canada to add sexual orientation to the definition of an identifiable group under the hate crime provisions.

    So the ministers provincially and federally are on the record. All parties in the House, except for the Canadian Alliance, are on the record, although some members of the Canadian Alliance have indicated their support. James Moore of the Canadian Alliance has indicated his support. It's interesting that the Alliance allowed the bill to pass after one hour of debate without any vote whatsoever. If they're concerned about the bill, I'd have to ask what the problem was, given that it went through. The United Church and a number of other faith communities have indicated their support for the bill as well.

    Mr. Chairman, I recognize that we clearly may need a little more time because of the timeframe within the Standing Order, and I certainly would hope the committee would take advantage of the provision in the Standing Order that allows for a thirty-day extension, so that we can in fact hear further witnesses on the bill, perhaps in the second half of April. Following the hearing of those witnesses, I am confident and hope, Mr. Chairman, that members will recognize that this is legislation that indeed is long overdue if there is to be full equality for gay and lesbian people in Canada. As the Attorney General of Alberta said,

I support the hate crime legislation which prohibits people from spewing hate against anybody for any reason. There are appropriate ways to discuss issues in our country...and you don't need to put forward hateful literature. It doesn't matter what you believe about sexual orientation.

    Thank you.

Á  (1120)  

    The Chair: Thank you very much, Mr. Robinson.

    From the Department of Justice, we have Donald Piragoff, senior general counsel with the Criminal Law Policy Section; Lisette Lafontaine, senior counsel with the Criminal Law Policy Section; and Elisabeth Eid, assistant director and senior counsel with the Human Rights Law Section.

    I welcome all of you back to this committee. We'll begin with your opening statement, Mr. Piragoff.

    Mr. Donald Piragoff (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Thank you.

[Translation]

    Thank you for inviting Department of Justice officials to appear on Bill C-250, which provides for the extension of the application of the hate propaganda provisions to groups distinguished by sexual orientation.

[English]

    The hate propaganda provisions of the Criminal Code prohibit advocating or promoting genocide against an identifiable group—that is, “any section of the public distinguished by colour, race, religion or ethnic origin.” That's in section 318 of the Criminal Code. Secondly, the code prohibits inciting hatred against an identifiable group by communicating, in a public place, statements that are likely to lead to a breach of the peace. That's in subsection 319(1). And finally, the code prohibits “communicating statements, other than in private conversation,” to wilfully promote “hatred against any identifiable group”. That's in subsection 319(2).

    I want to comment on some of the elements of the latter offence of wilfully promoting hatred against an identifiable group. In the Keegstra decision, the Supreme Court held that the definition of “wilful” meant more than just simply intention, but rather the actual intention of promoting hatred. There must be a conscious purpose by the person to actually promote hatred. It's not just simply an intentional act, it must be a wilful act, which the court indicated must be a conscious purpose of hatred.

    The court also said “that the word ‘promotes’ indicates active support or instigation” for hatred. And the court also defined what was meant by “hatred”: “The term ‘hatred’ connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation.” It is

an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.

It is clearly a high threshold that must be met in order to found a prosecution and a conviction.

    Parliament also created four specific defences to a charge of hate propaganda: one, if the statements are true; two, if the accused, in good faith, expressed or attempted to establish by argument an opinion on a religious subject; three, if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit and, on reasonable grounds, the accused believed them to be true; and four, if, in good faith, the accused intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

    There's a third aspect to the provision, which is that “no proceeding for an offence...shall be instituted without the consent of the Attorney General” of Canada with respect to offences in subsection 319(2).

    In respect of a group, these provisions are the equivalent of the defamatory libel provisions respecting an individual. They were added to the Criminal Code in 1970 and were based on the recommendations of the Special Committee on Hate Propaganda in Canada, which reported to the Minister of Justice in 1965. This committee was also known as the Cohen committee, so named because of the name of its chair, Dean Maxwell Cohen. The report and the resulting hate propaganda provisions responded to the concerns of the 1960s, which were marked by awareness of the Holocaust in World War II and subsequent racial unrest in a number of countries. Consequently, the provisions at that time applied to groups distinguished by race, colour, religion, or ethnic origin.

    Whether or not sexual orientation should now be added as a distinguishing feature that can characterize and define a group is a policy decision for Parliament. As officials of the Department of Justice, we hope to be of assistance to the committee in highlighting some legal considerations that you should be aware of in examining the proposed amendment.

Á  (1125)  

    The committee is aware that the hate propaganda provisions were challenged under the Canadian Charter of Rights and Freedoms in the Keegstra case, which I've already mentioned. In 1990, the Supreme Court of Canada upheld the constitutionality of these provisions by a slim 4-3 majority. All seven judges found the provisions to be contrary to freedom of expression as guaranteed by paragraph 2(b) of the charter. However, four judges found the provisions justified under section 1, as being a reasonable limit in a free and democratic society and therefore constitutional, while three judges found them not justified and therefore unconstitutional.

    Examining the reasons for this decision should shed some light on whether or not the addition of sexual orientation would affect the constitutionality of the provisions in the event that a challenge was brought before the courts. As I mentioned earlier, the court unanimously found the provisions infringed on freedom of expression. The court held that the freedom-of-expression guarantee protects all expressive content, regardless of how offensive or heinous it may be. Prohibiting hate speech against gays and lesbians would similarly likely be found to violate freedom of expression. A court would therefore be required to examine whether the provision could be justified by the government as a reasonable limit in a free and democratic society under section 1 of the charter.

    Justifying a limitation on freedom of expression imposes an evidentiary burden on government. The legal tests for justifying a limitation on a charter right requires that the government demonstrate that the objective of the legislation is pressing and substantial; that the limit on freedom of expression is rationally connected to the objective; that the provision minimally impairs freedom of expression; and that the negative effects on expression do not outweigh the positive effects achieved by the provision.

    In Keegstra, the majority found that the hate propaganda provisions in the Criminal Code constituted a reasonable limit on freedom of expression. The court concluded that the purpose of the legislation was to address the pressing problem of hate propaganda and was designed to prevent the harm caused by hate propaganda, which the court indicated was primarily of two kinds. The first kind was a negative impact on the self-worth and integration of the target group into Canadian society. The second was the influence the message could have on Canadian society, with the resulting discrimination and potential violence against the target group.

    The majority of the court concluded that the criminal prohibition and restriction on speech was rationally connected to achieving the purpose of the legislation. In light of the limitations and safeguards provided in the offence, including the specific defences that I've already mentioned, the majority also concluded that in achieving its purpose, the legislation minimally impaired freedom of expression. Finally, in light of the enormous importance of the objective and the minimal impairment of the freedom, the effects of the limitation on freedom of expression were not deleterious enough to outweigh any advantage.

    However, the minority three of seven members found the provision to be unconstitutional. These judges were concerned with several aspects of the provision. It was their opinion that there was not a strong evidentiary connection between the prohibition of hate propaganda and its actual suppression in Canadian society; that it could have a chilling effect on expression; that it was overly broad and could capture expression that was not intended to be prohibited by the provision; and that the questionable benefits conferred by the hate propaganda provisions were outweighed by the significant limitation on freedom of expression.

    Even though a majority of the judges upheld the constitutionality of the provision, there is always the possibility today that the provision could be challenged again, especially in light of any amendments to it. If such a challenge were to be incurred based on the proposed amendment in Bill C-250, the court would have to consider a number of questions. First, is there sufficient evidence of hate propaganda against gays and lesbians to warrant prohibition of this type of expression? Second, could the addition of “sexual orientation” be interpreted in a manner that could have a chilling effect on expression or could it capture speech that was not intended to be prohibited? Third, do the benefits of such prohibition outweigh the limitations imposed on free speech? These are questions the committee, as parliamentarians, may also wish to consider, in order to inform the court should a challenge ever occur in future.

Á  (1130)  

    In summary, the addition of a group distinguished by sexual orientation, if challenged under the charter, would have to be supported by a section 1 justification. This justification would rest on the evidence put forward to justify the limitation on freedom of expression. As indicated earlier in my intervention, the court has held that the freedom-of-expression guarantee is a very strong guarantee. Nevertheless, the court is willing to uphold limitations on the freedom of expression when the evidence provides that harm to specific groups is occasioned in Canadian society, and that the purpose of the legislation would be to achieve the objective of preventing harm to Canadians and Canadian society.

    Thank you, Mr. Chairman.

Á  (1135)  

    The Chair: Thank you very much.

    I'm now going to go to Mr. Toews, for seven minutes.

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you, Mr. Chair.

    Before I direct my question at Mr. Piragoff, I just want to clarify the record with respect to Mr. Robinson's testimony. I found it to be filled with errors, not the least of which was his assertion that in 1998, the Attorneys General of Canada unanimously supported this bill. In fact, the discussion occurred but there was no unanimous support for this bill. A lot of concerns were raised. I know because I was at those discussions, since I was an Attorney General at that time. So to make that kind of assertion....

    I could go into many of the other comments that were made and were clearly erroneous. However, I want to deal specifically with the issue of religious organizations and their concerns, specifically the concerns Mr. Robinson dismisses as being without legal foundation.

    The purpose of the bill may be admirable, but the consequences, unintended or otherwise, are some very real concerns that we, as a committee, have to look at. Let's talk about this so-called high threshold, and let's look at comparable Saskatchewan human rights legislation and a decision of December 2002, the Hugh Owens decision.

    In paragraph 7 of the Saskatchewan Court of Queen's Bench decision in the appeal of that particular case, we have the description of the offence:

The bumper sticker in the advertisement displayed references to four Bible passages: Romans 1, Leviticus 18:22, Leviticus 20:13 and 1 Corinthians 6:9-10, on the left side of the sticker. An equal sign (=) was situated in the middle of the sticker, with a symbol on the right side of the sticker. The symbol on the right side was comprised of two males holding hands with the universal symbol of a red circle with a diagonal bar superimposed over top.

    The Saskatchewan Human Rights Commission found—and the court upheld this—that this advertisement violated the Saskatchewan Human Rights Code because it exposed homosexuals to hatred. They made a specific legal finding that it exposed homosexuals to hatred or ridicule. They then want on to say that because the board—and the court agrees—that the stick figures, when combined with the Biblical passages, would expose homosexuals to hatred or ridicule. Mr. Justice R.L. Barclay, of the Court of Queen's Bench, later went on to say:

In my view, s. 14(1) of the Code is a reasonablerestriction on the appellant's right to freedom of expressionand religion as contemplated by s. 2(a) of the Charter. See Bell, supra. In Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, La Forest J. held that the analysis unders. 1 of the Charter is the same whether the legislationinfringes the respondent's freedom of expression or freedom ofreligion.

And the Supreme Court of Canada held that the analysis under section 1 of the charter is the same whether the legislation infringes the respondent's freedom of expression or freedom of religion.

    Today, Mr. Piragoff, we have Mr. Robinson saying there is no legal foundation for this, that this is all scaremongering, that thousands of Canadians have written to members of Parliament on the basis of absolutely no legal foundation. Mr. Robinson knows of the existence of this case, but we already know what Mr. Robinson thinks about this.

    I want to hear from you on the meaning and significance of this kind of case that deals directly with the issues that we are considering. Ostensibly, the court has dismissed the high threshold that Mr. Robinson was talking about, has found that there was hatred, has found that there was exposure to ridicule, on the simple basis of actually just citing Biblical verses and using a universal sign superimposed over two male stick figures holding hands.

    It's astounding to me that, in a free country, something like this would be considered hate. We may well disagree with that advertisement, but is that how restrictive...? I'm concerned about the chilling effect of this kind of decision. And this isn't the only decision that tends to and supports this line of reasoning. I'd like to hear from you on that, Mr. Piragoff.

    Mr. Donald Piragoff: We have to be careful when we look at what different courts or human rights commissions might say in Canada. The Owens case was dealing with the human rights legislation of Saskatchewan, not the Criminal Code. Human rights legislation is interpreted more liberally than the Criminal Code is. Secondly, the standard of proof under human rights legislation is significantly less than that required under the Criminal Code. Proof under the Criminal Code is proof beyond a reasonable doubt.

    I don't know what definition of “hatred” was used in the Owens case, but the current bill that I've been asked to speak on deals with the effect of putting an amendment into sections 318 and 319 of the Criminal Code. I can only speak about how the courts have interpreted the Criminal Code. The Supreme Court of Canada has given a definition of what “hatred” means for the purposes of the Criminal Code. What the definition of “hatred” might mean under provincial legislation might change in each province. I can't comment on that with respect to the Criminal Code.

Á  (1140)  

    The Chair: Mr. Toews wants to follow up, and then you'll have a chance to respond, Mr. Robinson.

    Mr. Vic Toews: I'll be back to Mr. Robinson in my later questioning. I have the Department of Justice before me now.

    Again on the issue of hatred, what do you see as the definition of “hatred”? Can any one of your members comment on what the substantive definition of “hatred” is as it is applied in the context of human rights legislation and in the context of the Criminal Code? Are you prepared to answer that question?

    Mr. Donald Piragoff: I can repeat what hatred means in the context of the Criminal Code. In Keegstra, the Supreme Court was very clear in saying that

“hatred” connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation.

...an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.

    So it's not just simply a dislike, it is a higher level of dislike bordering on detestation or actually subjecting or creating the conditions that subject these people to ill treatment.

    That's the Criminal Code definition of “hatred”. I'm not an expert on human rights legislation, so I can't comment on human rights definitions.

    The Chair: Thank you very much.

    Mr. Robinson.

    Mr. Svend Robinson: I would just briefly respond to two points.

    In addition to the definition of “hatred” that Mr. Piragoff has referred to, Chief Justice Brian Dickson also said in the Keegstra case, “The hate-monger must intend or foresee as substantially certain a direct and active stimulation of hatred against an identifiable group.” That was the ruling of the Supreme Court of Canada, so the suggestion that one might merely quote from Biblical passages and somehow be promoting hatred under the terms of the Criminal Code is just completely without legal foundation.

    I just want to briefly respond to one other point as well, and that is with respect to the issue of the support of federal, provincial, and territorial ministers responsible for justice. I have the minutes of the meeting Mr. Toews said he was at in Regina in October 1998. At that meeting in October 1998,

Ministers agreed to recommendations referred by the...Working Groups on Diversity, Equality and Justice on legislative issues relevant to hate-motivated activities consistent with the Charter.

    In November 2001, those same ministers—and Mr. Toews perhaps forgot this key point—unanimously supported this recommendation. Indeed, the House leader for the Canadian Alliance, John Reynolds, said he would support the change, but he couldn't say whether or not the official opposition would back the amendment. In his words, “It makes sense to me. I don't believe in incitement of hatred against anybody.”

    The Chair: Thank you very much, Mr. Robinson.

    I'm now going to go to Mr. Marceau.

[Translation]

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you, Mr. Chairman.

    I have a question for Mr. Robinson. I have here the text of a recommendation formulated by the Federal-Provincial-Territorial Working Group on Multicultural and Race Relations in the justice system. The recommendation reads as follows:

Expanding on the concept of “identifiable group” to include sexual orientation as well as all of the reasons listed in section 15 of the Canadian Charter of Rights and Freedoms not already included, namely sex, age and mental and physical defects.

    If I understand correctly, this working group unanimously agreed that sexual orientation should be included under section 318 of the Criminal Code. Correct?

    Mr. Svend Robinson: Yes, that's correct.

    Mr. Richard Marceau: Mr. Robinson, in your opening remarks, you alluded to the campaign waged against your proposed legislation. What would you say to people with strong religious convictions who are afraid that the Holy Bible will be labelled hate literature? What would you say to them to assuage their fears?

Á  (1145)  

    Mr. Svend Robinson: That's a very important question. Three fundamental arguments can be advanced to counter this situation. Unfortunately, some of these fears are being fueled by a handful of members of this committee and this is quite unacceptable. I can advance three arguments.

    First of all, there's the definition of hate and hate propaganda. Mr. Piragoff has already talked about that. It's not just a matter of quoting a text. The aim in so doing must be the active promotion of hate or violence. That's the critical element. It's not simply a matter of quoting an excerpt from the Bible, the Koran or some other religious text.

    Secondly, the legislation includes safeguards for religious beliefs. This is clearly stated in the Criminal Code. In the case of religion, safeguards are in place. And if these two arguments haven't convinced you, I have a third one.

    In order to charge a person under this legislation, the Attorney General must consent to this in person. That's very clear. It's bizarre and absurd to imply that an attorney general would be prepared to consent to charges being laid against a person who might quote the Bible, for example. That is ludicrous.

    Mr. Richard Marceau: So, if I understand correctly, your bill would not prohibit a person from quoting from the Bible that God does not condone homosexual relations, for example.

    Mr. Svend Robinson: Absolutely not.

    Mr. Richard Marceau: Fine then. Thank you.

[English]

    The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance)): Monsieur Ménard, did you have something? There are still four minutes left.

[Translation]

    Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I have two questions. The first is directed to the Justice Department officials.

    As I see it, the situation described by Mr. Robinson is rooted in reality. Sites abound that promote hate and hate propaganda.

    I'm wondering if the Justice Department has an idea of the number of potential or existing sites that promote hate. That's my first question and I do have two others.

[English]

    Mr. Donald Piragoff: I have not personally looked at those sites, no.

[Translation]

    Mr. Réal Ménard: No one at the Justice Department can...?

[English]

    Mr. Donald Piragoff: In terms of research, the department undertook research following the 1998 decision of the federal, provincial, and territorial Ministers of Justice, and pulled together a list of anecdotal incidents of hate propaganda against gays and lesbians in Canada. Statistics Canada has undertaken research on hate-motivated crime. In fact, I have some statistics here from Statistics Canada on hate-motivated crime.

    With respect to hate crime victimization by motivation, 43% was motivated by hatred toward race or ethnicity. Sexual orientation came under the group of “Others”, which was at 37%. In order of frequency, this category included age, sexual orientation, religion, and other similar factors, like language and disability. So of the “Others” group that comprised 37%, sexual orientation was the second-highest category.

    With respect to actual statistics on hate propaganda directed against gays and lesbians, I do not have hard statistical data like Statistics Canada has with respect to hate motivation in general, but I do understand that Statistics Canada is undertaking a pilot project right now to collect statistics on hate propaganda against various types of groups in Canada.

Á  (1150)  

    The Chair: Mr. Robinson.

    Mr. Svend Robinson: I wonder if I might just ask Dr. Piragoff if he could table with the committee and with the clerk the documents to which he refers, both the Statistics Canada study and the anecdotal study.

    I assume you can table those with the committee.

    Mr. Donald Piragoff: Yes.

    Mr. Svend Robinson: Good.

    And just to follow up on the point Mr. Ménard makes, this is an issue that cuts across partisan political grounds. For example, in December 1999, Ontario's Premier Mike Harris, NDP leader Howard Hampton, and Liberal leader Dalton McGuinty made a joint submission to the federal government, seeking this change in the law. It was interesting that there was that strong support.

    Also, I just wanted to clarify something. Earlier, I mentioned Stephen Owen as the parliamentary secretary—at least, I believe it was Stephen Owen prior to Mr. Macklin. I believe I said Mr. Owen made his statement in November 2002, but it was actually in December 2001 that Mr. Owen said the government would be putting forward this amendment to add sexual orientation, following the unanimous decision. In his subsequent response to my adjournment proceeding question, he then went on to say:

I can reiterate the commitment of the Minister of Justice to her colleagues from the provinces and territories and through me to the House tonight that these will be put forward in an expedited way.

And again, that was in December 2001.

    The Chair: Thank you very much.

    Mr. Nystrom, for seven minutes.

    Mr. Lorne Nystrom (Regina—Qu'Appelle, NDP): Thank you, Mr. Chair. I want to welcome everybody here this morning. I especially welcome Mr. Robinson, who is here with a bill that's long overdue in terms of changes being made to the Criminal Code. But I want to ask a question of the Justice officials, and Mr. Piragoff in particular, or anybody else who wants to answer this.

    Would you agree that hate propaganda laws that include sexual orientation, as outlined in the bill before us today, could not be used to criminalize a religious text such as the Bible? We're all getting letters on that particular issue, and I just wanted to ask you that question very directly.

    Mr. Donald Piragoff: I can't give you a definitive legal opinion on the issue. I can reiterate the definition of what is required by the offence and the wilful promotion of hatred. In terms of what “promotion” means, it's active support or instigation.

    I've already defined what “hatred” means. The question is whether or not simple statements in the Bible that are taken out of context would qualify as meaning that the high definition of “hatred” has been causing despite, scorn, denial of respect, or any advocacy that people should be subject to ill treatment on the basis of group identification.

    While some people may use the Bible or religion to support their views, that doesn't necessarily mean the original text of the Bible is necessarily of the same view. For example, we know historically that the Bible has been used to justify all kinds of atrocities and torture, such as the Spanish Inquisition, etc. I think you have to separate what the Bible says and what others may advocate that the Bible says. Those are two different issues.

    However, I do want to say on this issue—and again, this is not the Criminal Code, this is human rights legislation—that the Saskatchewan Human Rights Commission, in 1993, did have occasion to consider a complaint on whether or not the Bible was hate literature. The Saskatchewan Human Rights Commission rejected the contention that the Bible is hate literature.

    Mr. Lorne Nystrom: So that was rejected back in 1993?

    Mr. Donald Piragoff: In 1993, yes. Again, though, as I said, that was in the context of human rights legislation, not in the context of the Criminal Code.

    Mr. Lorne Nystrom: Yes, you said it is more liberally interpreted as a rule. Those were interesting comments that juxtapose what Mr. Toews said earlier this morning.

    I also want to ask if you can confirm that the current hate propaganda laws provide no protection against hatred directed at the gay and lesbian community in this country, and that in light of recent court rulings that challenged this law, it would likely succeed.

Á  (1155)  

    Mr. Donald Piragoff: Elizabeth is our expert on human rights, so I'll ask her to answer that question.

    Ms. Elisabeth Eid (Assistant Director and Senior Counsel, Human Rights Law Section, Department of Justice): First of all, in terms of the scope of the hate propaganda provision, it currently does not capture groups identified by sexual orientation. That's not to say there are not other mechanisms. There is human rights legislation, and many pieces of provincial and federal legislation protect against symbols and certain aspects of expression on the basis of sexual orientation. Also, there were amendments to the Criminal Code that dealt with enhancing sentencing that was motivated by hatred, and that included sexual orientation. But the hate propaganda law does not include sexual orientation.

    In terms of a challenge to it, we had talked about a possible challenge with respect to freedom of expression. Someone who was charged with an offence could bring a challenge with respect to expression.

    Another potential challenge that I think Mr. Robinson might be alluding to is an equality-based challenge, saying that the legislation is underinclusive. One case that went to the Supreme Court and that you may be aware of was the Delwin Vriend case. That concerned an individual who tried to bring a complaint based on the Alberta human rights legislation, but he was denied access because the human rights legislation did not cover sexual orientation.

    So, yes, in theory, it's possible that such a challenge could be made. There would be lots of issues in terms of standing in order to bring the issue forward. Also, there are differences between what happened in the Vriend case that dealt with broadly applied human rights legislation, which is liberally interpreted, and Criminal Code provisions, which are targeted and restrictively interpreted as well.

    So there are differences, but it is possible.

    The Chair: Mr. Robinson.

    Mr. Svend Robinson: If I could just briefly comment, one of the points Ms. Eid made is a very important one. I would highlight the fact that section 718.2 of the current Criminal Code, which is the section that deals with hate-motivated crimes, actually does include sexual orientation. Sexual orientation was added to that section three or four years ago, I believe—I'm not sure—precisely to deal with the kinds of concerns this bill deals with in the context of hate propaganda.

    Mr. Lorne Nystrom: I just have a general question. What study has the Department of Justice conducted on the prevalence of hate crimes directed at gay and lesbian people in our country? How widespread are these crimes?

    Mr. Donald Piragoff: The department itself has not conducted any independent studies. The department has collected studies undertaken by Statistics Canada or other research organizations. We have not undertaken any of our own studies, we basically have a compilation of other studies.

    Mr. Lorne Nystrom: So you're talking about Statistics Canada studies here.

    Mr. Donald Piragoff: Or other work, yes. Work has been undertaken by various police departments in Canada, for example. They're maintaining statistics.

    Mr. Lorne Nystrom: Can you give us an idea of how widespread these studies are? Can you make any reference to studies that might be useful to this committee?

    Ms. Lisette Lafontaine (Senior Counsel, Criminal Law Policy Section, Department of Justice): Statistics Canada is currently devising a study to collect information on hate crimes. They will be able to break down the kind of data Mr. Piragoff has read. They lumped together a certain number of categories of people because they could not get information that was statistically reliable.

    I had a meeting with them a year ago, and they were undertaking pilot projects with various police departments in large municipalities. If I recall correctly, they included Vancouver, Toronto, and Montreal. I think there were six or seven municipalities in total.

    With Statistics Canada, it takes time to develop these numbers, so I don't expect to see any hard data for a couple of years. Therefore, we did something within the department at some point. I think it was after 1998, unfortunately before I was on this file. There was anecdotal evidence of harmful, hateful, or what would be offensive speech against gay and lesbians, and also against any other group that was not already included in the hate propaganda.

    You will recall that the recommendation of the federal-provincial-territorial working group aimed to apply the hate propaganda provisions to all of the section 15 groups. Our study therefore looked at all these groups to see what kind of evidence we could gather.

  (1200)  

    The Chair: Mr. Robinson wants to make a brief comment.

    Mr. Svend Robinson: Very briefly, I fully support ultimately expanding the hate propaganda provisions to ensure that they do reflect section 15 charter grounds, including gender, for example. I think that is important.

    I just want to add one other point in terms of the statistics, because Mr. Nystrom asked about the reporting of hate crimes. Study after study that has been done—and you can talk to police departments as well—will tell you that probably more than any other victims of hate crimes or hate propaganda, gay and lesbian people are less likely to report these crimes, and for a lot of different reasons. In may cases, then, police statistics underestimate the actual incidence of hate crimes. In some cases, people are afraid to report them because they are not “out of the closet”, as it were. If they report that they've been attacked, they are in a position in which they find themselves vulnerable.

    The Chair: Mr. Macklin, for seven minutes.

    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you very much, Mr. Chair. I'd like to direct some questions to the Justice officials.

    First of all, I'd like to deal with this conflict with respect to free speech. Obviously, a very large number of Canadians believe in and rely on the Bible, and they believe homosexual sex is wrong. Wouldn't this law, on a prima facie basis, criminalize their position even though there is an exception or an exemption for religious opinion? Secondly, wouldn't a court find that, prima facie, this provision would implicate too many law-abiding Canadians in restricting their freedom of expression?

    Mr. Donald Piragoff: You've asked me to second-guess what a court would do.

    What I can say is that expression of religious opinion is a specific defence in the provision. Subsection 319(3) of the law specifically says, “No person shall be convicted of an offence...if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject.” So if it's an expression of religious opinion, that does not qualify as an offence, and that is specifically set out by Parliament as being a defence or justification for the speech.

    In addition to that, the expression has to amount to more than expression, because the charter protects expression. It is clear that the freedom-of-expression guarantee will be violated if Parliament tries to restrict nothing more than simply expression.

    What Parliament did in 1970 was done to prohibit more than simply expression, it was done to prohibit the wilful promotion of hatred, which essentially is supporting or instigating hatred against identifiable groups. Hatred, as defined by the court, is not just simply dislike, it's actually strong emotions of despite, scorn, promotion of a denial of respect, and essentially making the target group subject to ill treatment. I think that goes beyond simply an expression of the opinion that people may dislike certain sexual activities that other people engage in or may dislike the individuals themselves who engage in those activities.

    Mr. Paul Harold Macklin: But isn't part of this process and the question that I raise part of the initial first-instance position that one finds oneself in—in other words, prima facie? Isn't that, in the first instance, not necessarily the outcome of a hearing, but right at the beginning, whether or not one would consider oneself at risk?

    Mr. Donald Piragoff: That's why Parliament also put in the safeguard that no proceedings would commence—which means the police cannot lay charges—unless the Attorney General of the province consents. There's a screening function whereby the Attorney General will have to look at the conduct and make a decision that it is conduct that actually does meet the test. A private individual who might be offended by what another individual says cannot him- or herself launch a private prosecution or get the police to lay a charge. The police can take a look at it, but it is the decision of the Attorney General as to whether or not charges will be laid.

  (1205)  

    Mr. Paul Harold Macklin: Secondly, looking at it from the point of federal and provincial human rights legislation, which seems to cover a broader segment of protected categories—and we did look at that legislation and there was some discussion here earlier—why isn't that considered enough to protect the Canadian people?

    Mr. Donald Piragoff: That's a policy decision for Parliament. Parliament has enacted the Canadian Human Rights Act federally, and the provinces have done so equally at the provincial level. Parliament has also enacted a hate propaganda provision to specifically deal with a certain level of hatred, and not just discrimination.

    The Canadian Human Rights Act deals with discrimination. The Criminal Code deals with hatred and promoting hatred against individuals. They're dealing with two different subjects. One is dealing with apples, the other is dealing with oranges.

    Mr. Svend Robinson: If I could just add something briefly in response to that as well, Paul, I think we also have to look at the response of the police in these circumstances. Clearly, the police have said the existence of human rights legislation is not sufficient to enable them to respond to hate propaganda. That's why this bill is necessary.

    Mr. Paul Harold Macklin: With respect to this broader picture, in terms of sections 318 and 319, first of all, this seems to be a rather limiting term that we're trying to add—that is, “sexual orientation”. We haven't even gotten to the issue of sex being a discriminatory basis. Shouldn't we be looking at the broader category of sex as one of the conditions for consideration?

    An hon. member: Gender.

    Mr. Paul Harold Macklin: Yes, gender. Sorry.

    Mr. Donald Piragoff: Members of Parliament, this is your realm to decide whether there is sufficient evidence to justify putting in other grounds or the characteristics that identify groups, such as sex, nationality, or the other grounds listed in section 15 of the charter. All I can indicate is that what the courts have provided are the tests that need to be met in order to add new grounds. If there is an evidentiary basis to justify the limiting of the freedom of expression, then the courts will uphold the legislation.

    So it's not just simply a question of putting any grounds in. Parliament has to turn its mind to whether or not there is sufficient evidence in Canadian society of hatred being expressed against groups of a particular characteristic, in order to justify adding that characteristic to the list.

    Mr. Paul Harold Macklin: In looking at section 319 generally, has it found much favour within our legal system in terms of its use in dealing with hate crimes?

    Mr. Donald Piragoff: As far as I know, the provision is not used that often, primarily because it is a provision of significant public interest and because the Attorneys General undertake their responsibilities quite seriously in deciding whether or not to proceed with charges. It's not a frequently used provision.

    The Chair: Mr. Toews, for three minutes.

    Mr. Vic Toews: I have something in respect to the Saskatchewan Human Rights Commission. In 1993, we had the Saskatchewan Human Rights Commission saying the Bible isn't hate literature. In 2002, we had the Saskatchewan Human Rights Commission and the courts then saying that quotes from the Bible spread hatred. In fact, I have the decision here—and I'm not speaking to Mr. Robinson right now.

    What they say specifically about hatred is that:

the message must not only ridicule, belittle or otherwise affront the dignity of the person or the class, it must be such as to cause or be likely to cause others to engage in one or more of the discriminatory practices prohibited by ss. 9 through 13 and 15 through 19.

And then they talk—and this is in response to Mr. Robinson, who says no, but he may in fact want to read the legislation—about exposure to hatred because of race and religion. So they do have a very clear focus on hatred there.

    Essentially, what those two decisions say is that you can read the Bible but you can't say anything about it, or you can quote it but you can't say anything about it. But religious freedom, curiously enough, is a defence in the Saskatchewan Human Rights Commission in a way that's almost identical to the defence set out in the Criminal Code.

    And now the suggestion is made that we don't have to worry about that because we have the protection of the Attorneys General. However, in the context of the Human Rights Commission, Mr. Piragoff, we have a state official, a state tribunal, saying to go ahead and prosecute under the Human Rights Act.

    Mr. Piragoff or Ms. Eid, could you tell me what the standard is that an Attorney General must apply in determining whether or not to allow a prosecution under the Criminal Code?

  (1210)  

    Mr. Donald Piragoff: The standard that an Attorney General would apply in terms of the Criminal Code would be a standard different from litigation under a Human Rights Act provision. There's a particular individual in Canada right now who was not prosecuted by the Attorney General of Ontario or other Attorneys General with respect to hate propaganda against Jews, but action was taken under the Canadian Human Rights Act against Ernst Zundel because it was a different standard.

    Mr. Vic Toews: But what is the standard that the Attorneys General must use?

    Mr. Donald Piragoff: The standard that the Attorneys General must use is whether or not the prosecution would be in the public interest, whether or not, in the opinion of the Attorneys General, there is a clear, founded case that justifies the prosecution going forward. It's not just the opinion of the police, it's not the opinion of crown prosecutors, it's the Attorneys General making a decision in the public interest and deciding that this prosecution is worthwhile, given the fact that it is a restriction on freedom of expression.

    Mr. Vic Toews: Who reviews that decision?

    The Chair: Mr. Toews, your time is up.

    Mr. Robinson.

    Mr. Svend Robinson: To respond to two unfortunately inaccurate statements that I know Mr. Toews would want to correct, he suggested that the Saskatchewan Human Rights Decision dealt with quotes from the Bible. That's what he said.

    It didn't just deal with quotes from the Bible. An essential element of that decision—because I've read the decision, and I hope Mr. Toews has read the decision—was the fact that beside quotes from the Bible was a symbol of two men holding hands, with the universal symbol for banning or wiping out juxtaposed over them. The evidence before the Human Rights Commission was that this could be interpreted by many people as calling, in effect, for the elimination of gay people.

    The second point I want to make is, again, that he wouldn't want to mislead the committee with respect to section 319 of the Criminal Code. He said section 319 of the code deals with exposure to hatred.

    There are no such words in section 319, Mr. Toews. The code talks about wilfully promoting hatred, not exposing to hatred. The courts have said that's a very high threshold.

    The Chair: I think you'll get more questions, Mr. Robinson.

    Mr. McKay.

    Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chair. I want to direct a question to Mr. Piragoff.

    Mr. Piragoff, my question has to do with the analysis that you would place on the following statement:

Men get angry when I describe them as “freaks of nature, fragile, fantastic, bizarre”, as idiots savants, “full of queer obsessions about fetishistic activities and arbitrary goals, doomed to competition and injustice not merely towards females, but towards children, animals and other men”. ...men bash women because they enjoy it; they torture women as they might torture an animal because they get off on it. Better-educated men get the same thrill from torturing their partners verbally. Aggression is part of the currency exchange and all masculine dealings. Men loathe omen and are afraid of women groups.

    I want you to apply your analysis. Does that fall within hatred? Does that demean and detest? Does it vilify? Does it despise? Does it scorn men? They're an identifiable group. It's based upon their “heterosexism”, which I think is a sexual orientation. Are there any defences available to a person saying that thing on the steps on the Supreme Court of Canada?

    Mr. Donald Piragoff: I can't give you a definitive opinion on that statement. I've indicated what the test is, and a court would apply the test that I put forward. Whether it goes beyond simply an expression of opinion and actually promotes hatred against men is an issue the court would have to decide.

  (1215)  

    Mr. John McKay: It's a very strong statement.

    Mr. Donald Piragoff: It's a strong statement, but all kinds of strong statements are made in the public interest or might be a position of either religious view or opinion. They might be statements relevant to any subject of public interest, the discussion of which is for the public benefit and, on reasonable grounds, could be believed to be true, which is one the defences.

    Mr. John McKay: I have no idea what that actually means.

    Mr. Donald Piragoff: You're asking me to give a definitive answer in thirty seconds on something on which a court would probably spend days hearing evidence before deciding.

    Mr. John McKay: Say you're the Attorney General. You're the one who is going to have to decide this. A police officer is going to come to you and say to you that this is what this person said. They are an identifiable group that appears to fall within the definition of hatred, and the defences are thin, if non-existent. The real question is whether or not you are going to lay charges.

    Mr. Donald Piragoff: My advice to the Attorney General would not be to take my word that quickly, in thirty seconds, and to consider the advice I give to the Attorney General.

    Mr. John McKay: The interesting point, Mr. Chairman, is that the author of those words is Germaine Greer.

    The Chair: I was prepared to give you a minute, but I'm not going to give you days.

    Mr. Ménard.

[Translation]

    Mr. Réal Ménard: I'm trying to understand the Justice Department's position. You've argued quite eloquently that the courts take a fairly balanced approach to the whole issue of hate propaganda and clearly, the department is seeking to provide assurances that unfair restrictions are not placed on freedom of expression.

    I recall that when she was the Minister responsible for Multiculturalism, my colleague Hedy Fry was rather proud of her poster for the month of March on racism. I was in the House when section 718 of the Criminal Code was amended.

    Svend Robinson's bill would seem to be the next logical step in the process undertaken by the Department of Justice and by Multiculturalism Canada in their efforts to, as the poster proclaimed, end racism. Would you not agree? Considering that there are identifiable groups that promote hate propaganda, wouldn't this committee be shirking an important responsibility by failing to include in the Criminal Code a provision of this nature? Would you not agree that from the standpoint of positive law--I'm not asking you to comment from a political standpoint--a provision like this clearly addresses a need for some legislative safeguards?

[English]

    Mr. Donald Piragoff: You're asking the department for a policy decision when this is a decision for parliamentarians, including—

[Translation]

    Mr. Réal Ménard: No, I'm talking from the standpoint of positive law. Does this bill provide added legislative safeguards? I'm not asking you to comment from a policy standpoint, as that is not your job. However, in terms of positive law, does this bill provide added legislative safeguards?

[English]

    Mr. Donald Piragoff: Purely looking at logic and putting aside policy, Parliament has taken certain policy decisions in the Criminal Code already to protect certain individuals or groups from hate motivated crime, because of their characteristics, whatever they may be. There is a certain logic, then, to also indicating the actual expression of hate. If an assault because one hates someone is a crime, then it is a logical extension to say that actually advocating hatred and advocating people to commit offences of violence against persons with those characteristics should also be criminalized.

[Translation]

    Mr. Réal Ménard: To your knowledge, have similar legislative provisions been enacted in other countries? If Parliament did adopt this provision, would Canada compare favourably with other countries? It's good for Canada to take the lead in this area, but if a similar provision has been enacted elsewhere, I'd like to know about it. Do we have any reference points?

[English]

    Mr. Donald Piragoff: I'm not aware of what other countries have done in this area. Again, this is not a government bill for which we have undertaken researching that type of background information to support the minister. We're just simply responding based on the information that we have available in our files.

    Mr. Svend Robinson: If I could just briefly provide clarification on this point, it's not a government bill. Once again, however, the government made a commitment through the parliamentary secretary. Speaking on behalf of the minister and speaking on behalf of the government, he said that:

the minister will be putting forward amendments to the Criminal Code of Canada to add sexual orientation to the definition of an identifiable group under the hate crime provisions.

    That was a commitment of the government, not a commitment of a private member, Mr. Piragoff.

  (1220)  

    The Chair: Thank you.

    I'm going to ask the indulgence of everyone. I believe there had been some discussion of the possibility of passing a motion to extend. If we can do that without debate—I think perhaps we can, and I'd like to do that—we can ask for the thirty-day extension as part of this process. We have a quorum, so if there's no objection, I'm going to report our desire for an extension.

    Some hon. members: Agreed.

    The Chair: Thank you very much.

    We're now going to hear from Ms. Fry.

    Ms. Hedy Fry (Vancouver Centre, Lib.): Thank you very much, Mr. Chair.

    With regard to some of the questions that were asked on section 319, it's very clear. According to paragraph 319(3)(b) of the Criminal Code, a person who wilfully promotes hatred shall not be convicted, “if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject”. So there are some very clear criteria for when a person can be accused of promoting hatred or not, and it's pretty clear that there are about four criteria. I think that might answer Mr. Toews' concerns on the subject.

    What I want to say to Mr. Robinson, however, is that there is going to be some concern that if we simply add sexual orientation to this list, we will have left out other matters, such as disability, mental illness, etc. An argument made by the Law Reform Commission of Canada awhile back—way back in 1986, I think—was that if we look at subsection 15(1) of the charter, it identifies clearly and it's an open-ended list. That argument was supported in 1985 by the parliamentary committee. In regard to equality rights and equality for all, that was seen to be a very comprehensive list. Also, under “sex”—and Mr. Nystrom made an important point—sexual orientation could be seen to have been covered.

    So to get to my question, by adding sexual orientation only, would we not be flagging another one to the list when others will say, “Well, you didn't add me”? Or should we not just follow the 1985 parliamentary committee ruling and the Law Reform Commission's argument that everything is covered under subsection 15(1) of the charter?

    Mr. Svend Robinson: Having been a member of the 1985 committee, I certainly recall the recommendations that were made. I don't think anything in that report would suggest that where there has been a serious concern raised by front-line people who are working in the field of hate crimes—I'm speaking here of police boards, of the police themselves, of the representatives of the gay and lesbian community who have identified this as a serious concern—nothing would preclude Parliament from acting on that concern.

    Under the current provisions of the hate propaganda legislation, if this were challenged before the courts as not being inclusive enough on the ground of sexual orientation or on other grounds—as Mr. Piragoff has indicated previously—the government would certainly have to, in effect, defend that failure to include. But what the Attorneys General at the federal, provincial, and territorial levels have agreed upon unanimously is that because we have a serious problem with hate propaganda directed at gay and lesbian people, we have to move ahead on this.

    As I've said before, I certainly don't in any way disagree that we should be looking at other grounds as well, but that's not a reason not to support this particular extension. It wouldn't in any way weaken that argument. Let's move ahead. Time and again, police have identified hate crimes directed at gays and lesbians as one of the key areas of concern. If there is evidence with respect to, for example, hate crimes directed at other minority communities covered by section 15, clearly we should act on them as well. But we shouldn't wait on this until we've had an opportunity to deal with everything.

    The Chair: Thank you very much.

    I have no more names on the list, so I want to thank the witnesses, the sponsor of the bill, and the members of the committee. I will be reporting to the House tomorrow on our intention to seek a thirty-day extension.

    The meeting is adjourned.