It’s the Charter Stupid
Marc Lemire has won his constitutional challenge to s. 13(1) and s. 54(1) of the Canadian Human Rights Act.
As truewest points out in the thread below, “Hadjis distinguishes Taylor on the grounds that s. 54 of the Act, which provides for fines of up to $10,000, payable to the state, for breaches of s. 13, was not part of the legislation when Taylor was heard and that, as a result of this penal consequence, s. 13 no longer meets the minimal impairment leg of the Oakes test and is unconstitutional.” I think that is about right.
Now, this has an interesting result. If the CPC does nothing – does not repeal s. 54 or s. 13(1) – the reasoning in Lemire means that s. 13 is a dead letter and the CHRC is out of the censorship business. The proceedings against Topham should cease immediately as should all other proceedings under. s. 13.
More in a few minutes.
Update 1:The Member made the following finding
found Mr. Klatt’s testimony to be very credible. His answers were straightforward. He was frank in stating that he could not provide any information regarding areas in which he lacked any “in-depth knowledge”, including the internal operations of certain Internet Service Providers in respect of which he was questioned.”Now, for those members of the right side of the blogosphere who are being sued by Lucy for, inter alia, relying upon Klatt’s testimony regarding the Anne Cools posting, the Member’s endorsement of Klatt’s expertise is a welcome nail in the coffin of Warman’s strategic lawsuit.
Update 2:I took my dog for a walk and thought about the position Hadjis has put both the coward Lynch and her Commission and the Harper government. In her unsolicited Report to Parliament the coward Lynch stated that the Commission would cease to ask for s. 54 penalties citing the constitutional concerns which have driven the Lemire decision. Which is lovely but insufficient. That the statute contains the penalty clause at all renders s. 13 constitutionally inoperative. So the coward Lynch and her merry band of “investigators” are now out of the censorship business.
This drops the Harper government squarely in the middle. To, perhaps, restore s. 13’s constitutionality, Parliament would have to repeal s. 54. But would Harper be able to convince his strongly anti-s.13 caucus and Party to do anything to help the censors? I don’t think so.
The practical result being that Harper’s policy of total inaction has switched from a pro-censorship position to an anti-censorship position.
September 2nd, 2009 at 9:35 am
And here I thought you were at a liberal mug in!
So, does this mean LUCY will have to refund all and any damages? Harry and Burny plus Len should put $$$ aside? Big Eddie @TO is so busy today!
And the intervenors and the special witnesses – do they have to refund/share in the taxpayer burden?
September 2nd, 2009 at 9:45 am
Well it is a good news day.
September 2nd, 2009 at 10:06 am
Jay,
I’ve spent the last 90 minutes or so reading the decision. Let me share my thoughts about the one article that was deemed to have contravened s. 13, the ” AIDS Secret” article. The tribunal determined that only 8, yes, EIGHT people in all of Canada had read this. I suspect that one or two of these were from Lucy logging in on his various handles, one or two from the “Human Rights” investigators meaning, once from Marc Lemire meaning perhaps 4 Canadians read this on the website (paragraph 208)? I would guess now that 2,000 or maybe 4,000 times more people will be reading this article because of Lucy having brought this before the tribunal. Also, instead of focusing on the allegations contained in the article (because as the member points out, truth is no defence under s. 13), ¶207 deals with the “tone” of the article, not its truth. (The facts in the AIDS Secret article are likely a load of rubbish, but since truth is no defence, we’ll never know.)
I also think this is very nearly the best of all outcomes for defenders of free speech. If the tribunal had dismissed everything, the commission could have dropped the matter and waited for the next victim, someone who wouldn’t fight back. If he had fined Mr. Lemire, the ball would have been in Mr. Lemire’s court and he would be facing the uphill battle in attempting to have the section declared unconstitutional. Now, they are going to have the burden of proving why interfering with freedom of expression is in society’s best interests.
September 2nd, 2009 at 10:20 am
Having read through the decision the passage I find most interesting is this one:
CHRT member Hadjis stated – “It is arguable if I have any evidence before me actually documenting Mr. Lemire’s “lengthy overall involvement” in the “neo-Nazi movement”
After years of the CHRC and its apologists labeling Mr. Lemire as a ‘Nazi’ it will be interesting to see if he recovers compensation for damage to his reputation through strategic law suits of the worst antagonists.
September 2nd, 2009 at 10:44 am
Regarding the one article found to have constituted hate speech. It was ignorant, pathetic, incoherant and wholly unworthy of rational discussion. I am amazed that anyone at the HRC was able to summon the intellectual honesty to do what this Member did. Good for him.
Of course the decision is not binding on other arbitrators at the HRC or on the various provincial Human Rights folks so let’s hope for an appeal to a level that is binding.
September 2nd, 2009 at 11:39 am
“The practical result being that Harper’s policy of total inaction has switched from a pro-censorship position to an anti-censorship position.Sweet. Canada has begun to shuck the vile malaise of begging government solution/intervention in every issue that arises.
September 2nd, 2009 at 12:32 pm
Does this mean that all the judgements rendered under this section in the past are now null and void?
Will the CHRC reimburse all damages paid, expenses, etc…?
September 2nd, 2009 at 12:33 pm
To me, one of the more interesting paragraphs was the one where the Tribunal said that if Warman had simply asked Lemire to take down the postings he may have, which is part of the the whole “remedial” process.
But Warman didn’t. He just read (and possibly added) posts. For 11 months.
Lemire even asked for mediation, but Warman turned it down.
And as pointed out above by pettifogger, the process actually amplified this dreck. The Commission is the “American Idol” of dumb ideas, with Lemire as William Hung…
September 2nd, 2009 at 2:34 pm
The irrepressible Richard Warman would be my pick to play the role of Mr. Hung. Off pitch, poor delivery, rather misjudging his talents, remarkably lacking in self-awareness.
Enough with the singing.
September 2nd, 2009 at 2:52 pm
Let’s see, assuming that a real life court actually affirms this, Section 2 is still subject to the Notwithstanding Clause, if I remember my Charter correctly. And I might not, since I drink pretty heavily.
Who wants to take bets on which party promises to invoke Notwithstanding during a possible election first?
And I wouldn’t put it past Harper to do it. He’s a murderous cyborg who only cares about winning. Who doubts that Catnip Kinsella is already on the phone threating to sue Count Iggy of Cambridge if Notwithstanding isn’t a main plank in the Liberal platform? He has been known to sue Liberal leaders, you know.
We – the Free Speechers – are a decidedly minority in a nation of apathetic chuckleheads who are busy being terrified of the economy. Most of the country is either sympathetic to the HRCS or just doesn’t care. That’s ideal for hack politicians during what could be a close election.
Harper’s a lot of things, but stupid ain’t one of them. He knows that coming out against the HRCs pisses off more people than it gains him enthusiam from people like us.
Let’s not count our chicks before they hatch. Not having read the decision yet, I like what I hear. I’m just not altogether sure that it actually means anything.
September 2nd, 2009 at 4:06 pm
I think there will be some more issues ahead. First, I think the fact that Warman was so disinclined to participate in mediation made the Judge’s ruling that much easier. If he had participated and then declined the options, I don’t think the case could be made so easily that punishment was the only outcome.
Warman shot himself there. I don’t think the next litigant will be so short-sighted.
Also, the ruling clearly maintains that the HRT’s can still make determinations as to what constitutes allowable speech. And even without the fines, you can rake up a lot of legal bills defending your right to say something. I read nothing in the ruling that condemns the ability of the tribunal to ban you from speaking on a given topic for life.
This is a start, and a slap in the face to Warman, but it is not a solution.
September 2nd, 2009 at 4:07 pm
Upon reading Skippy’s post, I more or less reiterated his point… sorry about that.
September 2nd, 2009 at 4:31 pm
I post this with fear and trembling. Is it permissible under Canadian law to wish the CHRC a cheery adios and a “go to your room”? I travel from the US to Canada on business so I hope in so saying I haven’t displeased any of my obvious betters. I roll the brim of my hat.
If I have done so, obviously I uphold the right of righteous censors everywhere to quash the free speech rights of any person out of step with the latest revealed p.c. doctrine whatever it may be.
Honest! I’d defend your right to choke off social or political debate of any sort to the limits of my ability. In fact, I disavow anything in this posting- obviously done by someone who hijacked my good name- that in any way impugns the glory of the CHRC, it’s ever vigilant staff and leadership and the whole of the sensitive polity that they represent , whomever that may be. In fact, please disregard this entire post. Thank you and I’m sorry. Please don’t hurt my children.
September 2nd, 2009 at 4:42 pm
cold canadian, I agree with you and Skippy. The question now is whether or not the coward Lynch and Lucy are dumb enough to appeal. “Please don’t throw me in the briar patch Brer Fox.”
September 2nd, 2009 at 4:54 pm
Jay,
I dunno, dude. I’m just not feeling as, I dunno, serene about this as I probably should.
Basing a condemnation of the HRCs on a Charter with a Notwithstanding Clause in country where nobody really cares about either strikes me as a thin reed upon which to hang one’s hopes. Also, as a classical conservative, I’m generally distrustful of a government’s willingness to strip itself of raw power. This of course includes the courts.
Sorry to be a refigerated douche about this.
September 2nd, 2009 at 5:31 pm
A few noteworthy bits:
[114] The objectives mentioned in Grossman resonate in human rights law as well. The Act is remedial in nature. The Supreme Court in Taylor noted that the purpose and impact of s. 13 are to prevent the discriminatory effects of hate propaganda rather than to stigmatize and punish those who discriminate (at p. 933). The Court highlighted the conciliatory nature of human rights procedure and the absence of criminal sanctions, in finding that s. 13(1) was especially well-suited to encourage the reform of hate propaganda communicators. Providing message board operators with proper notice of presence of hate messages on their boards would thus constitute a productive means for preventing the continued dissemination of the hate propaganda. The potential damage to be caused by the propaganda would end earlier if the web messages were promptly removed.
[120]...
I note that most of the Tribunal’s decisions regarding s. 13 complaints excerpt some of the impugned material. Access to the Tribunal’s website, where its decisions are posted, could potentially also be denied by these user-based filters.
[122]... He openly advised message board users of the website’s rules for permissible conduct, and established a simple reporting system that enabled guests and users to report any transgressions. This, in my view, was a reasonable control. Thus, if it was established that Mr. Lemire had ignored reports of inappropriate messages containing material that is likely to expose persons to hatred or contempt within s. 13’s meaning, he could potentially have been found to have caused the messages’ communication, of which he was now fully aware….
145-149 is interesting where an attempt at stifling political speech is turned down.
[222]. Besides, as I mentioned earlier, I am not in any event bound by the findings of other Tribunal decisions.
There is an appearance of referring to jurisprudence, but it isn’t real?
[250] In the Court’s view, there is no conflict between providing a meaningful interpretation of s. 13(1) and protecting the freedom of expression so long as the interpretation of words like “hatred” and “contempt” is fully informed by an awareness that Parliament’s objective is to protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression. The Court added that such a perspective was employed in the definitions of “hate” and “contempt” adopted by the Tribunal in Nealy, which I dealt with extensively in the earlier portion of the present decision. The Court was of the view that these definitions were not “particularly expansive”, adding that as long as the Tribunal continues to be well aware of the legislation’s objective and pays heed to the ardent and extreme nature of feeling described in the phrase “hatred or contempt”, there would be little danger that subjective opinion as to offensiveness would supplant the proper meaning of the section.
[257] (describing pre 1998 rules. This has to do with proof of intent not being needed, and whether or not it has a chilling effect on speech ) The only order that could be made at the time was a cease and desist order. It was only after that order had been registered with the Federal Court and the offender was afforded the opportunity to appear before a show cause hearing and was found in a judicial proceeding to have continued to disobey the cease and desist order, that he or she could be penalized. The maximum penalty prescribed for such an individual, who is found to be in contempt of the order, was a $5,000 fine or a one year term of imprisonment.
[264] Another ground of concern for the Tribunal in that case related to the ordinary distribution of adjudicative duties in our system of justice (paras. 66-7). The punishment of individuals who commit moral wrongs is usually left to the criminal process, the institutional safeguards of which make it a better forum in which to pursue a penalty against an individual. Tribunal proceedings are civil in nature. Dr. Groarke remarked that the purpose of an inquiry is, as Taylor recognized, not to measure the moral blame that attaches to a respondent’s actions, but rather to rectify discrimination…
[268] I share the same concerns as those raised in Eldon Warman No. 1. The Supreme Court held in Taylor that despite not requiring any proof of intent to discriminate, s. 13(1) only minimally impairs freedom of expression principally because the Act’s purpose is to prevent discrimination (as well as compensating and protecting the victim), rather than punish moral blameworthiness. The considerations articulated by Dr. Groarke demonstrate that s. 13(1) has, since the 1998 amendments, lost the exclusively compensatory and preventative features that characterized it in the eyes of the majority in Taylor. Following the Court’s reasoning, it can therefore no longer be concluded that the provision still minimally impairs the Charter-guaranteed freedom of expression
[279] This question, however, is not what is relevant to the present discussion. The point is that, when assessed against the characteristics of the penalty provisions enumerated in these decisions, it is evident that s. 13(1) has become more penal in nature (irrespective of whether s. 11 Charter rights are necessarily triggered). The provision can no longer be considered exclusively remedial, preventative and conciliatory in nature, which was at the core of the Court’s finding in Taylor that s. 13(1)’s limitation of freedom of expression is demonstrably justifiable in a free and democratic society, and thereby “saved” under s. 1 of the Charter.
[285] Evidence was led showing that only about 11% of the total number of all human rights complaints filed with the Commission, between 2002 and 2006, were not resolved and were ultimately referred to the Tribunal for inquiry. However, of the s. 13 complaints filed over a period that admittedly extends over a longer period of time (1997-2007), 68% were referred to the Tribunal for hearing. Only 4% were settled. In a document that the Commission posted on its website, entitled Regarding Hate on the Internet and the Canadian Human Rights Commission – Questions and Answers, the Commission wrote that while it generally offers to mediate complaints, “this is not generally done in the case of hate message complaints”.
[288] The majority in Taylor did not articulate in detail its understanding of the procedure under the Act, but the dissenting judgment provides some insight in this respect. At page 963 of the decision, Justice McLachlin (as she then was) wrote that “supporters of the legislation” had argued that the process envisaged by the Act removed the danger that it would be used to catch conduct that went beyond its objectives. Thus, she wrote that the argument had been advanced that after the complaint is filed, “the Commission at this stage does not only investigate; it attempts to conciliate”. She went on to state that “if the alleged offender is prepared to make concessions and amend his or her conduct, this is the end of the matter”. If, on the other hand, the “alleged offender is adamant in resisting the law, a board of inquiry can be established to hold a hearing into the complaint”, and that “given the public nature and the inconvenience of a hearing, many offenders chose to amend their conduct voluntarily”.
[290] In my view, it is clear that Taylor’s confidence that the human rights process under the Act merely serves to prevent discrimination and compensate victims hinged on the absence of any penal provision akin to the one now found at s. 54(1)(c), as well as on the belief that the process itself was not only structured, but actually functioned in as conciliatory a manner as possible. The evidence before me demonstrates that the situation is not as the Court contemplated in both respects. Thus, following the reasoning of Justice Dickson, at 933,one can no longer say that the absence of intent in s. 13(1) “raises no problem of minimal impairment” and “does not impinge so deleteriously upon the s. 2(b) freedom of expression so as to make intolerable” the provision’s existence in a free and democratic society. On this basis, I find that the Oakes minimum impairment test has not been satisfied, and that s. 13(1) goes beyond what can be defended as a reasonable limit on free expression under s. 1 of the Charter.
September 2nd, 2009 at 5:44 pm
Skippy, the notwithstanding clause can be invoked on section 2. Two or three elections ago, the Liberals said they wouldn’t invoke the clause if the Supreme Court of Canada were to legalize child pornography but I imagine they would have no such compunction for “hate” speech.
September 2nd, 2009 at 5:58 pm
A couple of comments:
1. The villain who is breaking the law and trampling on the rights of citizens in this case is Warman. His adversarial pursuit and the application of fines is what made these cases over the top. I can’t think of a more direct repudiation of the Warmanesque Human Rights regime.
2. The section on internet message boards is good. Even if an individual breaks the law, the vigorous debate can immunize the forum owner
3. This will do nothing to change the basic function of the commission. Boisson in Alberta would remain in effect, minus the fine. Cease and Desist with the penalty of contempt of court. No change whatsoever, in fact legitimizes the government’s role in describing what is suitable conversation.
4. Some comments have mentioned that the abuse of process wasn’t mentioned at all. I would suggest that the judge didn’t need to, and built his argument on matters of law. If he hadn’t found that, he would have gone further with the procedural abuses. Make no mistake. This is a slapdown.
5. What next? Parliament or the Supremes? Governments seldom give away their power, and any parliamentary changes would probably be worse. I’m hoping it goes to the SC.
Derek
September 2nd, 2009 at 6:03 pm
Oh, forgot another one.
6. Section 288 states plainly that the process is punishment. Throughout the whole document that assumption is made very clear.
Derek
September 3rd, 2009 at 1:25 am
Pettifogger,
Actually, Paul Martin said that he would prohibit the federal government from invoking Notwithstanding, which is slightly different, particularly since Martin is no longer the Liberal leader. Besides, Trudeau said that he wouldn’t impose wage and price controls before he, y’know, imposed wage and price controls. I also vaguely remember hearing something about the GST being “scrapped”, but that could’ve been the brown acid talking.
My point is that Liberals lie. A lot. And I give them slightly less than even odds to win if in fact there’s an election this fall. My instincts tells me that they won’t, but the polling has been pretty consistent suggesting that they can. Do you think that an Liberal government is going to risk Kinsella going batshit on them in public … again?
Worse, the federal government can’t do anything about the provinces playing the Notwithstanding card in regard to their human Rights laws as long as Notwithstanding remains in the Charter. Furthermore, the Ontario Progressive Conservatives aside, no sane politician is going to run a campaign around the HRC as that is the surest path to oblivion. Tim Hudak is going to learn that the hard way in about two years.
September 3rd, 2009 at 4:46 am
Jay,
I find that petty tyrants rarely believe they are either petty or tyrants. I am willing to bet Lynch is reading the outcome and marking with a highlighter all the places where the judge says Lemire is wrong. It will make her feel better. She will come at this with a mind to skirt the glaring inadequecies but with no intention whatsoever to reduce the mandate. I suspect the process will now become more deliberately the punishment – including the mediation.
I don’t expect any begging to avoid the briar patch. She believes the briar patch is her exclusive domain.
September 3rd, 2009 at 1:52 pm
Giving “The Brier” a whole ‘nuther meaning here in The Great White North. ;)
September 22nd, 2009 at 9:01 pm
you have all missed the real key to all of this—hadjis is contradicting himself—he has used the section in the past, and issued fines
paul fromm has it right—is he going to pay back the money?
September 23rd, 2009 at 4:10 am
The villain who is breaking the law and trampling on the rights of citizens in this case is Warman.
What law has Warman broken? Chapter and verse, please.