Debates of the Senate  
1st Session, 41st Parliament, Volume 148, Issue 149
  Tuesday, March 26, 2013
 
Bill C-304: An Act to Amend the Canadian Human Rights Act
Hon. Lillian Eva Dyck:
Honourable senators, I spoke with Senator Day, and we came to an agreement that I would speak today and that after I was done, the adjournment would remain in Senator Day's name.

Honourable senators, I rise to speak at second reading of Bill C- 304, an Act to amend the Canadian Human Rights Act (protecting freedom), and will address my remarks to clause 2, that section 13 of the act be repealed.

I want to thank Senators Munson, Jaffer and Fraser, who have spoken eloquently on the reasons this bill should be defeated. Frankly, it mystifies me why anyone would want to delete section 13 of the Canadian Human Rights Act just so that they could have the right to communicate so-called hurtful messages, when the offshoot of such a change to the Canadian Human Rights Act would be giving permission to extremists, such as white supremacists, to ramp up their hate messages and to be more likely to incite hatred towards specific racial groups in Canadian society, thereby compromising those groups' well-being and safety.

As a visible minority woman of Cree and Chinese descent, I have confronted hatred, outright discrimination and so-called subtle discrimination throughout my life. However, it was nowhere as severe as that faced by my parents. Thankfully, over time, due to the hard work of those who were oppressed and others who pressed for a more tolerant, equitable Canadian society, various measures, such as the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act, came into being. The purpose of the Canadian Human Rights Act is to promote equality of opportunity unhindered by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

Section 13(1) of the Canadian Human Rights Act makes it a discriminatory practice to communicate repeatedly, via telephone or telecommunications, any matter that would likely expose a person or persons to hatred or contempt because they are identifiable on the basis of a prohibited ground of discrimination.

The proponents of repealing section 13 basically have three arguments, which have now been discounted by recent court decisions and also by scientific studies.

Their first argument for repealing section 13 is that the impact of hate messages on the target is merely one of hurt feelings. However, this is a clear denial of the significant negative impact of repeated hatred. This negative impact would be far worse if section 13 were severed from the Canadian Human Rights Act because that would signal that offensive hate messages are acceptable by mainstream society, and the incidence and intensity of such behaviours would escalate. Section 13(1) uses the words "likely to expose a person or persons to hatred or contempt...."

While the target may well have hurt feelings, hate propaganda creates and reinforces negative stereotypes about the target group that harm the rights of an individual member of the target group to be judged according to his or her own merits rather than be judged as a stereotypical member of a hated group. In other words, people belonging to the hated target group are all seen in a negative and stereotyped fashion.

For example, if we allow the notion that all brown-skinned people are deserving of hatred or contempt to be communicated repeatedly on the Internet, it will harm an individual brown- skinned person's ability to be judged on his or her own merits in schools or in the workplace. Furthermore, such hate propaganda would interfere with their right to live a life free from the fear of being constantly insulted, demeaned, harassed or undermined.

Honourable senators, what I have to say next may surprise you. Recently, neuroscientists have shown that DNA, the epigenetics code within the hippocampus of brains of adults who were emotionally or physically abused as children, is permanently altered. In other words, our genetic makeup can be permanently and biochemically modified by exposure to abusive events. This recent study out of McGill University shows that there is a clear link between a person's social environment and his or her epigenetic code. Since a person's genes can be affected by childhood emotional abuse, then it is not hard to postulate that being exposed to constant hate messaging might also alter one's DNA. In other words, the impact of hate messaging may well cause hurt feelings, and now through neuroscience we know that hurt feelings, in turn, can cause permanent physical changes to the DNA of a person's brain. Such DNA changes have been correlated to adult suicide.

Honourable senators, this recent neuroscience research dispels the myth that hurt feelings are of no consequence. While psychological research has shown that people whose feelings have been hurt seriously can develop emotional scars, neuroscientific studies have found biochemical scars; that is, permanent changes in their brain DNA. In other words, hurtful words can physically affect or hurt your brain.

The second argument that proponents of this bill put forward is that section 13 interferes with their freedom of expression. While the Canadian Charter of Rights and Freedoms states that everyone has the right of freedom of thought, belief, opinion and expression, including the freedom of the press and other media of communications, it also states that the rights and freedoms set out in it are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In other words, freedom of expression is not an absolute right; it is subject to limits. Surely, the vast majority of Canadians are willing to forgo the unfounded notion of absolute freedom of expression in order to foster equality of opportunity for others who may be targets of hate messages because of race, sexual orientation or other factors.

Honourable senators, it is important to note that those people who claim that their right to freedom of speech or expression is being unfairly limited by section 13 do not seem to realize that the targets of their hate messages have equal right to protection from hate messages. Section 15(1) of the Canadian Charter of Rights and Freedoms states that

Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In other words, people who are the target of hate messages have an equal right to protection from being subjected to hate messages provided to them by section 13 of the Canadian Human Rights Act.

Proponents of the absolute right to freedom of expression also seem to be unaware of the rights of their targets to equality of opportunity. Section 2 of the Canadian Human Rights Act states that the purpose of the act:

... is to extend the laws of Canada to give effect... to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, sex... age or mental or physical disability.

Honourable senators, it is truly ironic that those who argue that the freedom of expression is hindered by section 13 overlook the equally important fact that hate speech hinders the freedom of expression of the targeted groups. This is an important consideration. Hate propaganda limits the freedom of belief, opinion and expression of the targeted group. How can one argue for the right to free speech and simultaneously ignore the fact that the intention of purveyors of hate messages is to take away the freedom of thought, belief, opinion and expression of their target? Hate messages directed to an identifiable group discredits or undermines their credibility. Their voices are not heard to the same extent. They are disadvantaged simply because of who they are.

In the so-called free exchange or free market of ideas, the voices of targets of hatred do not have equal value, nor do they have equal power. One of the main purposes of hate messages is to silence members of a target group.

As I said before, honourable senators, freedom of expression is not an absolute. The notion of equality of opportunity and the notion of freedom of speech are connected. Those who claim that their rights to freedom of speech are being unfairly limited have no greater right than anyone else's right to live a life free from continual harassment and discrimination, which are the outward manifestations of hatred towards others. Such claims to the supremacy of one's rights over another's have no legitimate foundation. Claiming supremacy of rights to spread hate messages directed to targeted groups is a symptom of bigotry.

Honourable senators, even here in this chamber we do not have absolute freedom of expression. For example, in the Senate rule book under rule 6-13(1):

All personal, sharp or taxing speeches are unparliamentary and are out of order.

Under section 6-13(2):

When a Senator is called to order for unparliamentary language, any Senator may demand that the words be taken down in writing by the Clerk.

Finally, under rule 6-13(3):

A Senator who has used unparliamentary words and who does not explain or retract them or offer an apology acceptable to the Senate shall be disciplined as the Senate may determine.

Clearly, such rules were put in place to prevent inflammatory language from provoking undue emotional reactions which could escalate into physical reactions and near confrontation such as witnessed in the other place last December.

Honourable senators may find it difficult to comprehend the degree to which discrimination disempowers and silences the voices of the target group. In my own case, you may be surprised to hear that here, in this chamber of sober second thought, I have for the first time in my life, not been afraid to say what I think. As a target of contempt and hatred, my freedom of expression was circumscribed. Defending myself invariably resulted in an escalation of unwanted, harassing behaviour and comments. I had to be somewhat careful of what I said, but I never stopped fighting back, even as bystanders stood silent and did nothing. I suspect that they were relieved that it was I, not they, who was the target.

Honourable senators, I am a strong, well-educated woman, yet hateful and contemptuous words delivered to me repeatedly in the workplace took a significant toll on my well-being. Most people who are targets of hate messages do not have the same level of education or the inner strength that I am fortunate to have. Other people may be more vulnerable to the insidious after-effects the negative impact of hate messages. They have a right to be protected from hate messages. We do not live in a perfect society. The vulnerable groups in our society must be protected from people like Ernst Zundel, who used the web to spew hate messages at his target. It would be a mistake to sever the protection that section 13 of the Canadian Human Rights Act provides to victims of hate messages.

As senators, do we not have a duty to retain legislation that protects the vulnerable from repeated Internet hate messages? Do we not have a duty to protect the rights of the vulnerable to equality of opportunity to make for themselves the lives that they are able to and wish to have and to have their needs accommodated consistent with their duties and obligations as members of Canadian society?

Honourable senators, those who have been charged with violating section 13 have tried to use a violation of their freedom of expression as a defence in the courts, but this course of action has not been successful. In 1990, the Supreme Court of Canada ruled in Canada (Human Rights Commission) v. Taylor, specifically John Taylor's right to freedom of expression. In his ruling to preserve section 13, Chief Justice Dickson stated:

It can thus be concluded that messages of hate propaganda undermine the dignity and self-worth of target group members and, more generally, contribute to disharmonious relations amongst various racial, cultural and religious groups....

Honourable senators, may I have five more minutes?

The Hon. the Acting Speaker: Honourable senators, is it agreed?

Hon. Senators: Agreed.

Senator Dyck: His ruling continued:

... as a result eroding the tolerance and open-mindedness that must flourish in a multi-cultural society which is committed to the idea of equality.

In addition, as pointed out by Senator Fraser, the Federal Court ruled a few months ago that the Canadian Human Rights Tribunal should have applied the section 13 provisions in the 2009 Lemire decision. The tribunal ruled that the penalties in the act were inconsistent with Charter guarantees of freedom of thought, belief, opinion and expression. However, Federal Court Justice Richard Mosley indicated that the tribunal should have severed the penalty provisions and applied section 13 and its other remedies. He stated:

The minimal harm caused by section 13 to freedom of expression is far outweighed by the benefit it provides to vulnerable groups and to the promotion of equality.

Furthermore, this ruling was reinforced just a few weeks ago when the Supreme Court of Canada upheld key provisions against hate speech in the Saskatchewan Human Rights Code, but struck down some of the code's wording in a case prompted by flyers handed out by an anti-gay activist, William Whatcott. In his ruling, Justice Marshall Rothstein stated:

Hate is an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have societal impact.

He continued:

Rather than advancing dialogue, hate speech is antithetical to this objective in that it shuts down dialogue by making it difficult or impossible for members of the vulnerable group to respond, thereby stifling discourse.

Speech that has the effect of shutting down public debate cannot dodge prohibition on the basis that it promotes debate.

Judge David Arnot, Chief Commissioner of the Saskatchewan Human Rights Commission, hailed the ruling, saying that it goes to the heart of what it means to be Canadian. He said, "It basically says under no circumstances should hate speech be tolerated."

The court struck down the part of the legislation that includes speech that "ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground." It found these words are not rationally connected to the objective of protecting people from hate speech. However, the court left in place the ban on speech that exposes or tends to expose persons or groups to hatred.

Honourable senators, the third argument that supporters of Bill C-304 use is that section 13 is not really necessary because section 319 of the Criminal Code of Canada provides all the necessary legal protection that Canadians need against hate speech. However, according to the Canadian Bar Association, section 13 has a different purpose: It provides remedies to target groups for the harm that hate messages create. It fosters greater respect for target groups, and it changes behaviour. Section 13 applies to conduct that falls short of criminal behavior but nevertheless poses harm to vulnerable groups. In other words, section 13 serves as a preventive law and is meant to stop someone whose conduct is likely to incite hatred. Section 13 protects members of the targeted group from hate messaging.

Surely it is a wiser measure overall to retain section 13 as a measure to stop someone from escalating their conduct to the point that it does incite hatred toward the target. Section 13 not only protects the target group but also everyone else from the civil disturbances that hatred incites. Furthermore, it stops hate- mongers before their conduct becomes criminal, thus saving them from a criminal record, jail time or other penalties.

Honourable senators, the effect of the Canadian Human Rights Act as a whole and section 13 as deterrents to discriminatory behaviour is an important consideration. The magnitude of deterrence is unknown and perhaps not even measurable. However, given the intensity of the speeches of the opponents of the Canadian Human Rights Act and section 13 in particular, one can surmise that it is probably quite significant. It appears that the protection afforded to vulnerable groups who are the targets of hate messages is not only legitimate but also essential and necessary.