Tribunal declares Internet hate speech law unconstitutional
By John Ward
The Canadian Press (CP)
September 2, 2009
OTTAWA A ruling from a Canadian Human Rights Tribunal member says a controversial law banning Internet hate messages is unconstitutional because it violates free speech protections.
Athanasios Hadjis ruled Wednesday that section 13 of the Canadian Human Rights Act violates Charter protections.
While this decision doesn't throw out the law – that's something for the courts – it did let accused hatemonger Marc Lemire off the hook, because Hadjis refused to penalize him or order him to stop posting his messages.
If the example is followed by other tribunal members, it could mean an end to section 13 cases.
The section originated in the 1960s as a tool against racist phone hotlines and was later extended to the Internet. It's come under harsh criticism recently.
Conservative pundit Ezra Levant, who has written a book on what he calls “abusive” human-rights bodies, expressed wonder at the decision.
“This is the first time in 32 years that anyone has been acquitted under the censorship provisions of the Canadian Human Rights Act,” he said. “That's amazing – and to have the law declared unconstitutional is even more of a breakthrough.”
Hate accusations are filed with the Canadian Human Rights Commission. If it finds them valid, they are then taken before the tribunal, which can order people to stop posting material on the web or impose fines of up to $10,000.
Lemire was accused of posting anti-Semitic and anti-gay material on web sites in a complaint brought by Ottawa lawyer Richard Warman. Warman has become an Internet watchdog for such material and the main section 13 complainant before the tribunal.
He had asked for a cease-and-desist order against Lemire and a $7,500 fine.
Hadjis thought otherwise.
He found that Lemire violated section 13 in at least one instance involving an anti-gay message. However, he declined to impose any penalty because he found the sections at issue unconstitutional.
“The restriction imposed by these provisions is not a reasonable limit within the meaning of section 1 of the Charter,” Hadjis wrote. “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.”
The Canadian Jewish Congress was quick to call for an appeal of the Hadjis ruling.
“We strongly disagree with his decision not to impose a cease-and-desist order,” said Joel Richler, an honorary legal counsel to the congress.
The congress said other tribunal members have found the section to be constitutional and the courts should be asked to clarify the matter.
The section has been controversial, with some claiming it spreads too wide a net. The Supreme Court of Canada has said legal action should be reserved only for the most extreme forms of hate.
Levant said the ruling showed that the rights commission went after speech that was political, not hateful.
“The CHRC prosecuted Marc Lemire for criticizing welfare rates and high immigration – in a manner the tribunal acknowledges were not hateful.
“So you've got an increasingly aggressive government agency, with new powers to issue massive fines, and it's being used as a political weapon. Of course it was struck down as unconstitutional.”
The commission has itself backed away from section 13 and its penalties.
It came under fire earlier this year after several controversial cases arose, including one in which a Mark Steyn book excerpt on a Macleans Magazine web site was accused of promoting hatred and contempt of Muslims.
That case was tossed out, but it led some to demand that the commission be disbanded
In a special report issued in June, the commission asked Parliament to change the law to eliminate the fines and provide a clear, legal definition of what constitutes prohibited hatred.
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