Marc Lemire accused of running Internet hate site is vindicated
Law which bans Internet hate speech is declared unconstitutional
Stephen Pate, NJN Network, Charlottetown, Prince Edward Island, Canada, September 4, 2009 with story from Canadian Human Rights Tribunal and Google News
Freedom of expression guarantees under the Canadian Charter of Rights and Freedoms were strengthened when the Canadian Human Rights Tribunal declared Section 13 of the Human Rights Act unconstitutional.
Section 13 which allowed the police-state rights of search and seizure were an attempt to protect the rights of racial and other minorities from written and Internet expressions of hatred or vilification.
However, the Charter provided for freedom of expression. Clearly Section 13 was an infringement of the Charter.
In his September 2, 2009 ruling, HR Commissioner Athanasios D. Hadjis concluded Section 13 is unconstitutional. He refused to enforce it and suggested Parliament repeal the section.
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 (see Cuddy Chicks Ltd. V. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5), 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 (see Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at paras. 26-7). Warman versus Lemire
Commentators were quick to applaud the ruling as liberating Canadian free speech.
“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.” CP as quoted in Google news
Hate crimes infringe free speech
Canada had come late to the Charter guarantees of free speech. Parliament and the Court struggled with the power of people to communicate on the Internet and pressure from special interest groups who wanted to stop anti-semitism.
The United States had allowed so called “hate” free speech for decades under its Constitutional guarantee. Canada was trying to achieve free speech without the ugly part where people we don’t agree with say nasty things.
Section 13 of the Human Rights Act was meant to stop free speech against minorities. Canada would be a kinder gentler nation of free speech or so our legislators hoped.
Hate messages
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 that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
However, the HR Tribunal ruled that “Hate messages” cannot be banned since they are allowed free speech under Section 1a of the Charter
Fundamental freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
In 1990 the Supreme Court of Canada ruled in Taylor that Section 1 of the Charter allowed the government to reasonably restrict freedom of expression related to expressions of hate against a minority. That was a chilling blow to free speech.
While the HR Tribunal doesn’t have the authority to over-rule the Supreme Court, it does look past the Taylor decision and refused to enforce Section 13 which is essentially a fine up to $10,000.
The 107 page ruling will have lawyers working overtime but one thing is clear. The Human Rights Tribunal will not prosecute Section 13.
Lemire’s hate site
Marc Lemire maintained two Internet sites on which he posted anti-immigrant, anti-semitic material. Lemire would belong to those described as “neo-nazis.”
Ottawa lawyer Richard Warman filed a complaint with the HR Tribunal to have the sites taken down or fined. He has failed on both counts, although he put both himself and Lemire through a long legal battle that cost them both more than the fine.
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