Section 13 Hate Message Clause Unconstitutional Rules Canadian Human Rights Tribunal

By Patrick B. Craine

OTTAWA, Ontario, September 2, 2009 ( – The Canadian Human Rights Tribunal ruled today that section 13 of the Canadian Human Rights Act, Canada’s human rights legislation against hate messages, unreasonably limits the Charter right to freedom of expression.

Member Athanasios D. Hadjis issued the ruling in the case of Richard Warman and the Canadian Human Rights Commission (CHRC) against Marc Lemire.

Popular conservative pundit and human rights commission critic Mark Steyn today said that the end of the hate speech legislation is near, calling today’s decision a “landmark decision.” “This is the beginning of the end for Section 13 and its provincial equivalents, and a major defeat for Canada’s thought police,” he said. “It’s not just a personal triumph for Marc Lemire, but a critical victory in the campaign by Ezra Levant, Maclean’s, yours truly and others to rid the Canadian state of this hideous affront to justice.”

Lemire, operator of the website, was the subject of a complaint brought by serial complainant and former CHRC employee Richard Warman in November 2003. Warman alleged that certain postings to Lemire’s website were likely to incite hatred or contempt against homosexuals and blacks, thus violating section 13.

Lemire responded to the complaint by bringing a constitutional challenge against the hate messages section, and against section 54, which allows the Tribunal to levy a fine of up to $10,000 against those found guilty of violating section 13, in addition to the other possible penalties.

The hate message section of the Canadian Human Rights Act (CHRA) has been the subject of growing criticism, having been accused of placing limits on the Charter right to freedom of expression. High profile cases have been brought against conservative publisher Ezra Levant and columnist Mark Steyn, as well as numerous cases against Christians who have expressed their convictions against the homosexualist agenda.

The CHRC has admitted to using unethical methods within their investigations. Notably, in a hearing during Lemire’s case, CHRC employee Dean Steacy testified that he and a number of colleagues regularly used an alias to post racist messages on radical “far-right” websites. The CHRC was also investigated by the RCMP regarding allegations that they had hacked into a private citizen’s internet connection, though that case was dropped when it led the police to the American jurisdiction.

Until today, no respondent had won a human rights case brought to the Tribunal under section 13. Further, about half of the section 13 cases have been brought by Richard Warman, and almost all of them in recent years.

Liberal MP Keith Martin proposed a motion last year to remove the controversial section from the CHRA, calling the human rights commissions’ recent actions in this area “disturbing.”

In a report commissioned by the CHRC itself on the hate messages section, legal expert Richard Moon, surprisingly, called for its repeal. The CHRC, however, has effectively ignored Moon’s report and proposed their own solutions, which have been criticized as “superficial.”

The Conservative Party, further, added its voice to the controversy last fall when members of the party voted almost unanimously at its convention to work to remove the hate messages section.

In his decision today, Hadjis first examined whether Lemire had violated section 13, and then took up the constitutionality question.

He dismissed all of Warman’s claims against Lemire, except one, for an article he had posted entitled ‘AIDS Secrets’ by Kevin Alfred Strom. While Strom’s article manifests racism, it is principally accused of maligning homosexuals. He speaks frankly about the problems associated with homosexuality, calling it a deviation, and presents well-established facts, such as the high prevalence of AIDS among homosexual men, and the disproportionate effect the virus has had on the black homosexual population. Nevertheless, his comments also manifest disgust for homosexuals, which Hadjis contends is “likely to expose homosexuals and blacks to hatred and contempt.”

Nonetheless, Hadjis opted not penalize Lemire because he determined that section 13 unreasonably limited freedom of expression.

While bound by the 1990 Supreme Court decision which upheld section 13, CHRC v. Taylor, Hadjis observed that that decision was made “on the belief that the process itself was not only structured, but actually functioned in as conciliatory a manner as possible.” According to him, the Supreme Court decision “hinged on the absence of any penal provision akin to the one now found at s. 54(1)(c),” which is the clause that allows the Tribunal to impose fines of up to $10,000.

He notes how Lemire had removed much of the material he was accused of posting even before the complaint was filed, and that he had sought mediation repeatedly, but Warman and the CHRC forged on with the case nevertheless. Further, according to evidence, the tribunal judge says, a disproportionate percentage of section 13 cases were brought to the Tribunal rather than being mediated. Of all human rights cases filed with the CHRC between 2002 and 2006, 11% were brought to the Tribunal, whereas 68% of section 13 cases were brought to the Tribunal from 1997-2007.

“As I have pointed out several times in this decision,” he wrote, “Mr. Lemire had not only ‘amended’ his conduct by removing the impugned material, but sought conciliation and mediation as soon as he learned of the complaint against him. The process understood by the Supreme Court was not what Mr. Lemire experienced.”

For these reasons, he said, “I haveâEUR¦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.”

Hadjis said that because the Tribunal is not capable of actually repealing section 13, “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.”

Lemire told that he is pleased with the Tribunal decision, and is looking forward to getting back to normal life after the long case. “I want to get back to my life,” he said. “These people have stolen six years of my life, where I had to dedicate myself to fight these absolutely groundless charges. … So I want to get back to my life now, and I want to help anybody else that is currently before any of these tribunals.”

“Every Canadian should breathe a great sigh of relief that this kind of kangaroo court and disgusting administration of the human rights commission will come to an end very soon,” he said.