Hon. Joan Fraser:

Honourable senators, I would like to start by congratulating Senator Finley for initiating this debate on an extremely important subject to which we should all pay careful attention. I listened attentively to the speeches by the four senators who have already participated in the debate. I hope many of us will join in.

It must be pointed out that in this house, we are all most definitely in favour of freedom of expression.

We all support freedom of speech and freedom of expression. That should go without saying, although sometimes one is led to wonder.

Like Senator Duffy and Senator Wallin who preceded me in this debate, as a journalist I benefited from and exercised freedom of speech every day in my work.

I was often attacked for it, but nobody ever said that exercising your freedom of speech ought to give you a free ride against other people's freedom of speech. If you go into the public arena, you have to be prepared to face criticism, some of it vehement. Indeed, on a couple of occasions employers and I parted company after I exercised my freedom of speech. My experience was small potatoes, however, because I am fortunate enough to be in Canada.

I will never forget an experience in Cuba a few years ago when I was there as part of a parliamentary delegation. I gave a speech extolling freedom of speech and freedom of expression, and I suggested that Cuba could benefit from the application of this principle. The Cubans, understandably, were not delighted. The next day, a Cuban parliamentarian stood up to deliver an impassioned rebuttal, saying that, yes, everyone understands freedom of speech and Cubans have that freedom. She went on to say, "Is it not a pity that Senator Fraser is not here to hear my rebuttal of her ill-informed remarks." I was not there because I and other Canadian parliamentarians were, at that precise moment, meeting with a group of Cubans who had done hard time in prison for exercising their freedom of expression. In comparison to what they and so many others have suffered around the world, we should almost be ashamed to complain about events that may or may not occur here.

Still, honourable senators, that experience was a reminder that possibly the first reason for defending freedom of expression is that without freedom of expression, citizens are not free to criticize their government, and that is the foundation of democracy. It is the foundation of the system in which we are free to say that we either agree or disagree with those who govern us and, by extension, to choose others to govern us.

In that context, I was a little puzzled by the particular focus of my predecessors in this debate who tended to express great concern with the case of an American polemicist, Ms. Ann Coulter, and did not address issues that seemed to me to be of considerably greater concern. I note, for example, that the other day, Globe and Mail columnist Mr. Lawrence Martin produced a handy reminder of facts that we are all aware of in which he stated:

The government tried censoring coverage of dead bodies returning from Afghanistan. It tried to curtail freedom of the press like never before, at one point having the police move out journalists from a Charlottetown hotel lobby. . . .

And, I would add here, also by setting up what appeared to be friends and enemies lists about who was allowed to ask questions. Mr. Martin continued:

Restrictions on the access-to-information process effectively put a "stranglehold" on communications, information commissioner Robert Marleau reported.

As we have heard today, freedom of access to information continues to be a source of shame in this capital at this time. Mr. Martin continued by saying:

The Prime Minister's operatives put out a secret handbook instructing members how to muzzle parliamentary committees. . . .

Minister of State Diane Ablonczy lost some of her responsibilities because, a colleague said, she tried to give gays a voice to fund their parade. A noted academic, Michael Behiels, was attacked for criticizing the Harper government's Quebec policy; Government Senate Leader Marjory LeBreton went all the way to the University of Ottawa's chancellor in a bid to have him disciplined.

Senator LeBreton: That is not true, by the way.

Senator Fraser: Thank you for that clarification, Senator LeBreton.

The fact is that there are many examples of efforts by the present Government of Canada to muzzle various people, and I find them to be far more disturbing than the incident of the unfortunate Ms. Coulter — "unfortunate" in several senses.

I would like to address a couple of misunderstandings that tend to be quite common in discussions of freedom of expression. First, in Canada, freedom of expression does not trump other rights. In Canada, all constitutional rights are equal, and for good reason.

Honourable senators, I can remember having heated debates with some American colleagues back when I was a journalist because they believed for them it was an article of faith that freedom of the press trumped everything else. I do not believe that to be true. I believe that freedom of expression does not, for example, trump the right to a fair trial. The courts in Canada, including the Supreme Court of Canada, have confirmed that freedom of expression, while essential, is not more important or more sacred than the other constitutional rights.

A second misunderstanding which is linked to the first is the notion that any limit on freedom of expression is inherently wrong. That is not true in Canada, either. Section 1 of the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Limits that can be demonstrably justified, that is, any such exceptions, must be narrow. The courts have confirmed that they must be narrow.

In the case of freedom of expression, the core point to remember here is that it, like other freedoms but perhaps even more than other freedoms, must be exercised responsibly. It must be exercised vigorously over a wide range of opinion, but responsibly, because words have power. We were reminded when this debate began by Senator Dallaire of the power of the words of Radio Mille Collines in Rwanda, the radio station that incited genocide. Words have power. Therefore, we must use our words with a reasonable degree of prudence about the consequences that our use of those words may have.

Sometimes, there is a tendency to say, "Oh, bad things happen over there, on other continents, in poorer, less wonderful countries than Canada." However, we have examples in this country of how words can be misused and can lead directly to terrible consequences for people here. Just ask the minorities in Canada. Ask Aboriginals, Blacks, Jews, Chinese; the list is long. Indeed, ask women whether the words deployed against them have not had, too often, devastating consequences up to and sometimes including the loss of life.

In comparison to those abuses of freedom of expression, I would argue that the case of Ms. Coulter is not very important. University students have, for as long as there have been universities, engaged in overheated adolescent displays of intolerance. This seems to go with the territory of being a student. Honourable senators will recall the old saw about how, when you were young, your father did not know anything and how, as you got older, it was amazing how the old man learned stuff. Generally that first stage is where many university students are.

We have other present examples of the power of words, honourable senators. I would draw to your attention the, in my view, most unfortunate tenor, too often, of the debate in my own province of Quebec on what is called "reasonable accommodation," which too often seems to take the view that any accommodation of minorities is not reasonable. The most recent example is the appalling quality of the debate surrounding the wearing of the niqab by perhaps a few dozen Quebec women. We are not immune from abuses in this country, abuses of freedom of speech which lead to actions with real consequences.

Some speakers earlier in this debate explained that they want to abolish section 13(1) of the Canadian Human Rights Act, which they see as establishing government censorship. I find that explanation odd because section 13(1) is about repeated communication of hate messages by electronic means, so I am not sure why that particular section of the act has attracted such extraordinary venom.

Be that as it may, the Supreme Court upheld the validity of that section of the act, with the careful enunciation of narrow grounds upon which it may be interpreted, but it has upheld the constitutionality of that section of the act. My colleagues, I think, are suggesting that the Canadian Human Rights Act is no place to address hate messages at all, whatever the means of communication, and that the Criminal Code gives us all the protection we need.

I submit to honourable senators that we need both because the acts serve different purposes. The Criminal Code has as its object punishment — punishment of offenders one after the other after the other if necessary, often after long and costly trials — whereas the Canadian Human Rights Act is designed to be remedial. The act is designed to remove hate messages that cross the line from being expressions of opinion, even if benighted opinion, to that danger zone where they create true dangers for groups of Canadians.

Several people have referred to the famous case of Mark Steyn and Maclean's magazine. The Canadian Human Rights Commission dismissed the complaint against Maclean's magazine, but as the Canadian Human Rights Commission itself pointed out, there is room for improvement in the act, which might have helped Maclean's and Mr. Steyn. The commission suggested that the act be amended to add a statutory definition of hatred and contempt in accordance with that applied by the Supreme Court of Canada, which specified that section 13 refers to unusually strong and deep-felt emotions of detestation, calumny and vilification that are ardent and extreme in nature: in other words, truly extreme expressions of hatred and contempt.

The commission suggested that it be allowed to award for costs in exceptional circumstances.

Hon. Suzanne Fortin-Duplessis (The Hon. the Acting Speaker): Honourable senators, Senator Fraser's time has run out.

Senator Fraser: May I ask for five more minutes?

Hon. Senators: Agreed.

Senator Fraser: The commission has suggested that it be allowed to award costs in exceptional circumstances where the tribunal finds that a party has abused the tribunal process, and it has suggested that the law be amended to provide for early dismissal of section 13 complaints when messages do not meet the narrow definition of hatred or contempt. With those amendments, it seems to me that even those Canadians who fear the application of the Canadian Human Rights Act would have good reason to sleep more easily in their beds.

However, honourable senators, do not forget that words have power. When someone suggests that all Muslims are terrorists, for example, that is a powerful and dangerous message. The speaker does not need to go on and say, "Therefore, go out there and commit violence against Muslims." If someone persuades somebody that members of a given group are all terrorists or are all out to get them in some way, the consequence will follow as the night, the day. That group will be subject to dreadful persecution in this country as in others.

Some of us have had the misfortune in our lives to see race riots in other countries. I pray to God that we never have to see them again in this country, but I do not believe that we should sleep lightly and say the possibility cannot exist. That possibility, honourable senators, is why I believe it is so important to hedge about our freedom of expression with the responsibility to exercise it properly.

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