wins free speech case

  • September 11, 2009
{mosimage}OTTAWA - Catholics who fight for freedom of speech and of religion are applauding a tribunal decision that declared the Canadian Human Rights Act censorship provision unconstitutional.

On Sept. 2, Canadian Human Rights Tribunal member Athanasios Hadjis concluded Section 13(1) and some other portions of the act are “inconsistent with s. 2(b) of the charter, which guarantees the freedom of thought, belief, opinion and expression.” Section 13(1) says that material “likely to expose” various enumerated groups to hatred and contempt contravenes the act. There is no defense for truth or intent since the act merely looks at the effects on vulnerable minorities, even if there is no proof any damage has occurred.

The case involves Marc Lemire, a Toronto webmaster who ran a far-right Internet message board called . Lemire is the first person to break the rights tribunal’s 100-per-cent conviction rate in censorship cases referred to the tribunal by the Canadian Human Rights Commission.

“Freedom of religion includes the ability to express positions that are based on religious belief,” said Catholic Civil Rights League executive director Joanne McGarry. “We think this decision will help reinforce that point.

“While we reject the white supremacist, anti-Semitic and anti-immigrant opinion on the web site in question, the same section of the code has also been used to penalize the expression of viewpoints based on religious beliefs, including the case against Catholic Insight magazine.”

Unlike other respondents who couldn’t afford a lawyer, Lemire fought back, challenging the constitutionality of the act. He and his legal team laboured for six years, mostly in obscurity, until the high profile complaints against Maclean’s columnist and author Mark Steyn and former Western Standard publisher Ezra Levant put a spotlight on abuses by both federal and provincial human rights commissions.

Many abuses came to light in Lemire’s hearings, among them: the commission refused to disclose documents; investigators testified under oath that they had joined racist and neo-Nazi groups under assumed names; and they posted anti-gay and anti-Jewish material themselves to provoke a response.

Hadjis also found Lemire had taken down the material before or immediately after the complaint was filed and had sought mediation. The complainant, an Ottawa lawyer and former commission investigator, who has filed more than 40 per cent of all Section 13 complaints, refused him the opportunity.

Hadjis found Lemire had contravened Section 13(1) in only one article that had hateful language about gays and blacks. But he said the “remedies” in the act have become so punitive — tens of thousands of dollars — that these punishments coupled with Section 13 violate charter rights. The original intent of the act was to solve problems through mediation and remedies, but the addition of the higher awards have gone beyond what Hadjis believed the Supreme Court envisioned when it upheld the constitutionality of Section 13 in the 1990 Taylor decision.  

Catholic Insight editor Fr. Alphonse de Valk, who spent $30,000 fighting a human rights complaint that was dismissed before reaching the tribunal stage, said Lemire, along with Levant and Steyn, have “done the nation a service.”

“It was a just cause,” he said. “I’m very happy that he won it.”

Hadjis, however, is not a judge and does not have the authority to strike down the law as unconstitutional. Even though his decision is not binding on other tribunals, it is widely heralded as a victory for civil rights.   

“I think it’s a first step and I’m certainly looking for the Harper government to do something about this,” de Valk said, noting that last year, University of Windsor law professor Richard Moon had also recommended scrapping Section 13 of the act in a report commissioned by the rights commission.

Gwen Landolt, national vice president of REAL Women of Canada, said the Lemire decision “indicates the strength of public exposure and the pressure of public opinion.”

“We’re grateful that the problems with the commission are finally being publicly exposed.” 

She said she was surprised by the Lemire decision and warned it would likely be appealed by either the commission or the federal government.

McGarry agreed. “There’s also the possibility it will be dealt with where it should be dealt with and that’s in Parliament.”

De Valk wants the Harper government to legislate change in the act as soon as Parliament returns in the fall, before an election.

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