More on Web Site Freedom Ruling by Canadian Human Rights tribunal
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- Published on Thursday, 03 September 2009 15:15
- Written by John Draper
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The decision by Tribunal member Athanasios Hadjis causes a legal problem in Canada - especially for campaigner Ottawa lawyer Richard Warman. He has continually filed cases with the Tribunal against web sites accusing them of promoting hate. While this may be true in some cases, it now appears to have gone too far. Several of Warman's "hate-speech" cases are now on hold, since this ruling appears to strip the Canadian Human Rights Commission (CHRC) of its controversial legal mandate to pursue hate on the Internet. The Commission up till now has never denied a case and it has strenuously defended against complaints of censorship. Many people feel that any prosecution of hate should be handled by the courts and not by the quasi-legal rights tribunals. There would then be a better accountability to parliament and ultimately the public.
Given that the case will certainly be appealed to the Federal court, the story has not yet ended. It could easily end up in the Supreme court. Their last ruling on this subject said that the law only applied to extremely hateful messages and in that case was a justifiable limit on free speech. Activists have been pressing for the law to be clarified with a definition of "extremely hateful".
The problem with the current law is that it has become a punitive law masquerading as a remedial one. Richard Moon, a law professor hired by the CHRC last year to provide an expert analysis of their online hate speech mandate. In essence, his advice was that it could not be done fairly, and so should not be done at all.
Prof. Moon said yesterday's decision is "obviously a significant moment in the history of Section 13, but it seems like it is in some important sense inconclusive." He said the ruling has no weight as legal precedent, and could theoretically be ignored by future tribunals, but in practice it is impossible to ignore, and it hints at a fundamental problem with the law. "As soon as the Supreme Court confirmed that the scope of Section 13 was narrow, and confined to extremely hateful messages, then it was highly unlikely that we were going to have a kind of regular human rights process that involves conciliation between the parties," he said. "That was always something that we could have foreseen."
Ezra Levant, a blogger who has led the campaign against human rights hate speech law, said the ruling "shows that the CHRC has been acting illegally for many years," and it forces the Conservative government to make a "new kind of decision" about whether to appeal.
"If they launch an appeal, they are casting their lot with the censors," he said.
Cobourg Atheist is in no way defending hate speech - and the type spouted by Lemire is particularly offensive. There should be no place on the web for denying the holocaust, racial hatred, anti-semitism and homophobia but as shown by the Ezra Levant case and the Mark Steyn case, the Tribunal (and the similar Ontario Tribunal) can easily be used to push other agendas and has often been a forum to limit free speech. The Courts are the only place where such case should be made.
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Background
Section 13 of the Canadian Human Rights Act empowers the commission to deal with complaints regarding the communication of hate messages by telephone or on the Internet: 13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination. Source: Canadian Human Rights Commission
Excerpt from ruling: "I have determined that Mr. Lemire contravened s. 13 of the Act in only one of the instances alleged by Mr. Warman, namely the AIDS Secrets article. However, I have also concluded that s. 13(1) in conjunction with ss. 54(1) and (1.1) are inconsistent with s. 2(b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit within the meaning of s. 1 of the Charter. Since a formal declaration of invalidity is not a remedy available to the Tribunal.... I will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial order against him." Signed by Athanasios D. Hadjis
Source National Post - news item http://www.nationalpost.com/most-popular/story.html?id=1954734
Canadian hate law: A timeline of events
September 03, 2009, by Daniel Kaszor
1966
Canada's hate law has its roots in the Report of the Special Committee on Hate Propaganda in Canada (also known as the Cohen Committee), released in 1966. The report described the serious psychological harm caused by hate propaganda and noted that hate messages can also lead to an increase in discrimination.
1977
After an early draft of the legislation that did not include provisions for dealing with hate messages stalled and died in Parliament in 1975, an updated bill (C-25) was introduced the following year. It passed and received royal assent on July 14, 1977, and became the Canadian Human Rights Act, Chapter 33.
1979
Prominent neo-Nazi John Ross Taylor was ordered by the Canadian Human Rights Tribunal to shut down a telephone hotline that offered a recorded white power message. He refused, and was jailed for contempt.
1990
Related to Mr. Taylor's case, the Supreme Court ruled that the section did in fact violate the Charter right to freedom of expression, but it passed the "Oakes test," which means it is a justifiable breach.
1998
A subsection allowing the tribunal to order a person found to be spread hate messages to pay compensation of up to $5,000 to the victim was amended to expand the tribunal's punitive powers. The federal government reasoned that raising the penalty limit under the act from $5,000 to $20,000 would ensure that tribunals had the discretion to award an amount that was fair in the circumstances.
1999
Then justice minister Anne McLellan established a panel to review the act. Its report recommended that "the prohibition of hate messages in the act be broadened to encompass both existing and future telecommunication technologies in federal jurisdiction."
2001
Canada's anti-terrorism bill (C-36) further amended the act to include the communication of hate messages over the Web.
2002
Holocaust denier Ernst Zundel, pictured below, is found guilty by the Canadian Human Rights Tribunal of promoting hate on his website, following a complaint that was brought forward in 1996.
2003
Richard Warman, an Ottawa lawyer who would become the most prolific complainant under the controversial law, files a hate speech complaint against far-right-wing activist Marc Lemire, pictured at right, which reached its conclusion yesterday. Mr. Lemire responds by challenging the law itself.
2006
A Muslim organization files a complaint under a comparable law in Alberta against Ezra Levant, then publisher of the Western Standard, for publishing the Danish Muhammad cartoons in the magazine. Mr. Levant responds by launching an advocacy campaign against human rights commissions.
2008
Three hate speech complaints filed against Maclean's for running excerpts of conservative columnist Mark Steyn's book, America Alone, which described a rising demographic tide of Muslims in Europe that threatens to undermine liberal democracy, were dismissed by the federal human rights tribunal and those in Ontario and British Columbia.
2008
Liberal MP Keith Martin put forth a motion to scrap section 13(1), expressing concerns later that "someone could be using the power of the state for their own private initiative."
November, 2008
Law professor Richard Moon, who was commissioned by the Canadian Human Rights Commission to review Section 13, urges the government to repeal the provision so that online hate speech is only a criminal matter.
June, 2009
Jennifer Lynch, chief commissioner of the Canadian Human Rights Commission, presents a report to Parliament that recommends, among other things, that it scrap the penalty provisions.
Sept. 2, 2009
Six years later, the Canadian Human Rights Tribunal dismisses all but one complaint against Mr. Lemire and calls Section 13 unconstitutional.