Ruling on Section 13 incorrect

Chair's ruling on Section 13 incorrect: rights body

Facing appeal

Joseph Brean, National Post Published: Thursday, January 28, 2010

Canadian Human Rights Tribunal chairman Athanasios Hadjis over-stepped his authority and erred in law when he declared Section 13, Canada's controversial hate speech law, violates the Charter right to free expression, according to the Canadian Human Rights Commission.
Mr. Hadjis's decision to acquit far-right webmaster Marc Lemire last fall after a six-year hate-speech case brought by activist lawyer Richard Warman is the subject of an upcoming appeal in Federal Court, brought by the CHRC.

A major factor in Mr. Hadjis's decision was that Mr. Lemire immediately removed the offending material on learning of the complaint, but Mr. Warman rebuffed efforts at conciliation, and the CHRC continued to push the case toward a tribunal hearing.

In a memorandum filed with the court, CHRC lawyer Margot Blight argues that the manner in which the CHRC pursues hate speech is "irrelevant" to the constitutionality of the law that forbids it, Section 13(1) of the Canadian Human Rights Act.

"Any question as to whether the Commission's process is sufficiently conciliatory to meet the requirements of the Charter is outside the Tribunal's jurisdiction," the memo reads.

Ms. Blight also argues that the proper course of action, based on Mr. Hadjis's reasoning, was to "sever and refuse to apply" Section 13's penalty provisions, not declare the whole thing unconstitutional.

Mr. Warman, a former employee of the CHRC, brought a complaint against Mr. Lemire in 2003, after monitoring his website for almost a year.

He alleged that postings on the discussion forum, mostly written by other people, contravened Section 13 in that they were "likely to expose" identifiable groups to "hatred or contempt."

In all but one case, Mr. Hadjis decided that these postings either did not contravene Section 13, or that Mr. Lemire cannot be held responsible for what others posted on his website.

In the final case, Mr. Hadjis decided that a racist and homophobic article by a U.S. neo-Nazi called "AIDS Secrets" did violate Section 13, but because he also found the law itself unconstitutional, he declined to make any order.

His decision did not invalidate Section 13 -- only a court or Parliament can do that --but it did suggest the need for high-level clarification. The Supreme Court of Canada last upheld Section 13 as a justifiable limit on free expression in 1990, in part on the basis of its remedial and non-punitive purpose. Eight years later, the penalty provision was added by Parliament, allowing for fines of $10,000.

Mr. Hadjis decided this amendment means Section 13 "can no longer be considered exclusively remedial, preventative and conciliatory in nature."

In the factum, Ms. Blight argues that the activities of the CHRC in pursuing its hate speech mandate were not properly before him for judgment. And even if his reasoning about penalties is sound, he failed to consider two other options: an order against Mr. Lemire to cease the discriminatory practice, or a compensation payment to the complainant, Mr. Warman, who was seeking $7,500.

Having concluded that Mr. Lemire violated Section 13, the factum states, "the Tribunal was obliged to turn its mind to [an order or compensation], and determine whether one or more of the remedial orders described therein ought to be made in the circumstances. It is submitted that the matter ought to be remitted to the Tribunal for that purpose."

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