“There is nofuture for Section 13 because of the damage done to it by the dress-upNazis of the CHRC and and the sordid racket of Richard Warman.”
The Canadian Human Rights Tribunal on Wednesday ruled that Section13, Canada’s much maligned human rights hate speech law, violates theCharter right to free expression because it carries the threat ofpunitive fines.
The shocking decision byTribunal member Athanasios Hadjis leaves several hate speech cases inlimbo, and appears to strip the Canadian Human Rights Commission of itscontroversial legal mandate to pursue hate on the Internet, which ithas strenuously defended against complaints of censorship.
Italso marks the first major failure of Section 13(1) of the CanadianHuman Rights Act, an anti-hate law that was conceived in the 1960s totarget racist telephone hotlines, then expanded in 2001 to the includethe entire Internet, and for the last decade used almost exclusively byone complainant, activist Ottawa lawyer Richard Warman.
Mr. Warman’s first big loss is a victory for the respondent MarcLemire, webmaster of freeedomsite.org and a prominent figure in theCanadian far right.
Typically for the messystate of Canada’s perennial hate speech debate, public reaction to theruling yesterday was polarized, running the spectrum from glowingpraise for the “bold” Mr. Hadjis, to criticism that his “outrageous”conclusion is “vulnerable on judicial review.”
Allsides seem to agree, however, that the stage is set for pitched battlein federal court, where CHRT rulings can be appealed. Another lesslikely outcome is for Parliament itself to repeal or amend Section 13,a law that even supporters say needs updating in the age of theInternet.
Neither the CHRC nor Mr. Warman would comment.
“Nomatter what happens, this decision is going to federal court,” Mr.Lemire said. “This is the beginning of the end for Section 13 now. Thislaw is 32 years old. Not a single person has ever won until today. Butdid I really win? I have given up six years of my life. The process isthe punishment.”
Mr. Warman, a formerinvestigator for the CHRC, brought a complaint against Mr. Lemire in2003, after monitoring his website for almost a year. He alleged thatpostings on the discussion forum, mostly written by others, contravenedSection 13 in that they were “likely to expose” identifiable groups to”hatred or contempt.” Mr. Warman later urged the CHRC investigators toexpand their investigation to other websites he believed Mr. Lemire wasinvolved with, but to “hold off on informing” Mr. Lemire “until thepolice take a good look at it.” No criminal charges were ever filed.
Inall but one case, Mr. Hadjis decided that these postings either did notcontravene Section 13(1), or that Mr. Lemire cannot be held responsiblefor what others posted on his website.
Mr.Hadjis found Mr. Lemire violated the law in one case, by posting anarticle called “AIDS Secrets”, written by an American neo-Nazi, whichMr. Hadjis found was “rife with hyperbole and moral condemnation.Homosexuals, and Blacks to a lesser extent, are denigrated as purveyorsof a “killer” that is on the loose, agonizingly destroying the lives ofAmerican children and adults alike.”
Evenwith this finding, however, Mr. Hadjis declined to make any orderagainst Mr. Lemire. As a statutory tribunal, Mr. Hadjis does not havethe legal authority to officially declare a law unconstitutional. Butif he finds it would be unconstitutional to enforce it, he can do as hehas done, which is to “simply refuse to apply these provisions.”
Partof his motivation was that virtually all the offending material wasremoved either before or shortly after Mr. Lemire received word of thecomplaint against him.
“Mr. Lemire had notonly “amended” his conduct by removing the impugned material, butsought conciliation and mediation as soon as he learned of thecomplaint against him,” Mr. Hadjis wrote. “The problem had thus alreadybeen eliminated, yet the complaint continued to be processed.”
Section13(1) remains valid Canadian law, despite this ruling. Itsconstitutionality was last upheld by the Supreme Court of Canada in a1990 split decision, before the Internet age.
Thatdecision, about neo-Nazi John Ross Taylor, upheld the law as ajustifiable limit on free expression largely because of its remedial,non-punitive purpose. But Mr. Hadjis found that that, today, the law”has become more penal in nature,” and this renders it an unjustifiablelimit on freedom of expression.
Ever sincea 1998 amendment to allow the Tribunal to levy fines up to $10,000 –payable to the government — the pursuit of Section 13(1) cases “can nolonger be considered exclusively remedial, preventative andconciliatory in nature,” he wrote.
He citedMr. Warman’s request for a $7500 penalty against Mr. Lemire. Mr. Warmanhas won over a dozen other Section 13(1) cases, many leading to similarfines, payments to himself, and legal restrictions on Internet activity.
Thiscriticism about a punitive law masquerading as a remedial one echoesthat of Richard Moon, a law professor hired by the CHRC last year toprovide an expert analysis of their online hate speech mandate. Inessence, his advice was that it could not be done fairly, and so shouldnot be done at all.
Prof. Moon saidWednesday’s decision is “obviously a significant moment in the historyof Section 13, but it seems like it is in some important senseinconclusive.”
He said the ruling has noweight as legal precedent, and could theoretically be ignored by futuretribunals, but in practice it is impossible to ignore, and it hints ata fundamental problem with the law.
“As soonas the Supreme Court confirmed that the scope of Section 13 was narrow,and confined to extremely hateful messages, then it was highly unlikelythat we were going to have a kind of regular human rights process thatinvolves conciliation between the parties,” he said. “That was alwayssomething that we could have foreseen.”
“Westill believe Section 13 is constitutional. There seems to be somemajor difference of opinion within the Tribunal itself,” said BernieFarber, CEO of the Canadian Jewish Congress, referring to previousconstitutional challenges of Section 13 that went the other way.
MarvinKurz, legal counsel to B’nai Brith, which was an intervenor in thiscase along with the CJC and others, echoed Mr. Farber’s question aboutwhy Mr. Hadjis did not simply “read out” the penalty section — thatis, ignore it, but allow the actual hate speech section to stand.
“Notonly did he not do it, but he failed to explain why he did not considerthe alternative,” Mr. Kurz said. “It’s like if the police act wronglyin a criminal case, you don’t throw out the criminal law. That’s whathe’s done here, and that doesn’t make sense to me.”
EzraLevant, a blogger who has led the campaign against human rights hatespeech law, said the ruling “shows that the CHRC has been actingillegally for many years,” and it forces the Conservative government tomake a “new kind of decision” about whether to appeal.
“If they launch an appeal, they are casting their lot with the censors,” he said.
PearlEliadis, a human rights lawyer and a defender of Section 13, playeddown the importance of the ruling, and said Mr. Hadjis “just got itwrong. With respect, it’s constitutionally not within the normal waythat these provisions are dealt with.” She said he should have simplyignored the offending penalty section and upheld the law.
BruceRyder, a constitutional law professor at York University, said Mr.Hadjis was correct to find that the penalty provision “exacerbated thechilling effect” on freedom of expression. But he said Mr. Hadjis’reasoning “broke down at the end,” and he should have simply rejectedthe penalty provision.
He also wondered howMr. Lemire was acquitted over the posting of an article that explicitlydenied the Holocaust, which he called “outrageous and inconsistent withjurisprudence,” and makes the entire ruling “vulnerable on judicialreview.”
Mark Steyn, a conservative authorwho was the target of a prominent hate speech complaint over hiswriting in Maclean’s, said Mr. Hadjis’ realized “that there is nofuture for Section 13 because of the damage done to it by the dress-upNazis of the CHRC and and the sordid racket of Richard Warman.”
“It makes explicit that section 13 has no friends,” he said.
jbrean@nationalpost.com