A Minor Victory, Sort Of, Maybe, Kind Of
Parliament voted in June to repeal section 13 of the act, which bans hate speech on the Internet. The matter is now before the Senate and has yet to receive Royal Assent.
Despite that, Federal Court Justice Richard Mosley ruled this week that the Canadian Human Rights Tribunal erred in law when it refused to apply the controversial section following a hearing into a complaint by Ottawa lawyer and activist Richard Warman.
Warman filed a complaint in 2003, alleging that Marc Lemire, webmaster of freedomsite.org and a former leader of the far-right Heritage Front, had violated the act by allowing the posting of comments that were likely to expose homosexuals and blacks to hatred or contempt. Lemire responded with a constitutional challenge of section 13.
The tribunal ruled on the case in 2009. While it found that one article on Lemire’s website violated the section, it ruled that penalties in the act were inconsistent with Charter of Rights guarantees of freedom of thought, belief, opinion and expression.
On that basis, the tribunal declined to apply section 13 or any of its associated remedies, which include cease-and-desist orders and fines of up to $10,000. It found, in effect, that the section 13 regime outlined in the act had become too punitive and unduly impaired Lemire’s right to free expression.
The Canadian Human Rights Commission — which investigates complaints under the human rights act and determines which ones are referred to the quasi-judicial tribunal for adjudication — applied to the Federal Court for judicial review of the tribunal’s findings. Tuesday, Mosley released his 69-page decision.
The court found that the act’s penalty provisions — added in 1998 — were unconstitutional, saying they “fundamentally altered the nature of the section 13 process and brought it uncomfortably close to the state’s ultimate control measure, criminal prosecution.”
But Mosley said the tribunal should have “severed” the penalty provisions and applied section 13 and its other remedies. Those parts of the act are “justifiable in a free and democratic society,” he found, and the tribunal erred by declining to apply them.
“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,” he wrote.
Mosley noted that the House of Commons has voted to repeal section 13 and leave the suppression of free speech to criminal prosecution. Nevertheless, he said he had no difficulty concluding that section’s objectives “continue to be substantial and pressing.”
He ordered the tribunal to issue a declaration that Lemire’s publication of the offending article breached section 13 and determine whether a remedy, such as a cease-and-desist order, is appropriate.
Section 13 was included in the 1977 human rights act to address groups and individuals who were then using the telephone to disseminate hate messages. In 2001, as part of post-9/11 anti-terrorism measures, Parliament amended the act to specifically include Internet hate messages. Ever since then, the section has sparked intense controversy, with critics characterizing it as a tool for censorship.
For all the sound and fury, Internet hate complaints have never been very numerous, making up about two per cent of all signed complaints received by the human rights commission.
Since 2001, the commission has investigated 77 section 13 complaints, half of which did not proceed to the tribunal — a separate and independent body. Others were settled through mediation. Fewer than 20 have proceeded to the tribunal for a hearing, though all but a handful of those were upheld.
Warman, who once worked as an investigator for the human rights commission, has been the instigator of more than a dozen of the online hate complaints heard by the tribunal. Prior to the Lemire decision in 2009, all were upheld or settled in mediation.
Philippe Dufresne, the human rights commission’s acting senior general counsel, hailed Mosley’s decision as important.
“It clarifies the circumstances where a tribunal can refuse to apply legislation,” he said. “For us, the decision was about the rule of law. It was about tribunals following laws enacted by Parliament, unless they’re declared unconstitutional.”
In that sense, Dufresne said, Mosley’s decision has broader implications. “It means any time you have a law that’s validly enacted and constitutional, tribunals have to apply them.”
He wouldn’t say if the commission would push for a remedy when the Lemire case goes back to the tribunal, noting that it had not pushed for a fine when the tribunal heard the original case. “Our view was that in situations such as these, the proper remedy is a cease-and-desist order.”
Assuming that the bill repealing section 13 passes the Senate and receives Royal Assent, there will be a one-year transition period before the section disappears from the act. After that, Dufresne said, “it will no longer be possible for individuals to file complaints of hate propaganda with the commission.”
But until that happens, he added, the existing law applies and the commission is required to enforce it.
Lemire reacted to the decision on his freedomsite blog, calling it “both a major victory for freedom and a setback.” He called the court’s decision to uphold section 13 “the most shocking part of the decision,” saying it had given the controversial section “its last gasp of air.”
Lemire said his decision on whether to appeal Mosley’s decision depended largely on whether he receives financial help from supporters.
“I cannot carry on this important fight alone,” he told readers of his blog. “Your donations literally equal the survival of this case. No organizations are assisting with the bill at all.”