Please see this Macleans article on the Canadian Human Rights Commmissions. My two cents are towards the end of the article.
Thanks,
Keith
A tribunal rules its own hate-speech law is unconstitutional
The growing number of critics of the Canadian Human Rights Commission received a shot in the arm last week. In a ruling released Wednesday in Ottawa, the commission’s own tribunal ruled that Section 13(1), a controversial provision of the Human Rights Act, was unconstitutional. That is, the tribunal flatly challenged the legality of its own hate-speech law, concluding that it violates the freedom-of-expression guarantee of the Canadian Charter of Rights and Freedoms. While the quasi-judicial body doesn’t actually have the authority to strike a federal law—that’s up to a judge or Parliament—the ruling has opened a constitutional can of worms, further undermining a provision that, for two years, has faced intense public scrutiny. The surprise ruling has left even legal experts puzzling over what happens next. Meanwhile, more and more scholars, academics and scribes are lining up against Section 13(1), urging for its immediate repeal.
The controversy arose last week when the commission’s tribunal dismissed a complaint filed against Marc Lemire, the far-right webmaster behind Freedomsite.org, which bills itself as the country’s “freedom resource centre.” The complaint, filed by Ottawa lawyer Richard Warman, alleged that racist and homophobic material posted to the site was discriminatory, and “likely to expose” minority groups to “hatred and contempt.” Although the tribunal’s vice-chairperson, Athanasios Hadjis, found that Lemire had, in one instance, violated Section 13(1)—in a post viewed by a total of eight people—he let him off, deeming the provision unconstitutional. In a lengthy, 107-page decision, Hadjis noted that conciliation and mediation, intended to be central to the human rights process, had fallen to the wayside. (Lemire had removed the offending material after getting notification of the complaint.) The CHRC, he said, has instead grown increasingly aggressive and “penal in nature,” acquiring the capacity to exact stiff fines for opinions that, as its critics say, can fall well short of incitement to hatred.
Media reaction was swift. It’s unsalvageable, the Toronto Star said of Section 13(1) in an editorial published the next day. “It can be interpreted to cover stereotyping and defaming. The tribunal can accept evidence that wouldn’t stand up in court. And it doesn’t have to establish guilt beyond doubt,” they wrote. “It’s that bad.” “Put Section 13 out of its misery,” the Montreal Gazette urged Parliament, saying the case had exposed the “folly” of an “odious” law.
The question, for parliamentarians and the commission itself, becomes: what now? The ruling “cannot be ignored,” says University of Windsor law professor Richard Moon. Sure, the commission can “continue to investigate under Section 13(1) and send complaints onward,” he adds—but “if this is the automatic response, then it’s all wasted effort,” and Section 13(1) becomes, in effect, a dead-letter law. Even if tribunal members do not adhere to Hadjis’s ruling, it is the “elephant in the room,” impossible to overlook, says University of Ottawa law professor Michael Geist. (The CHRC says it is “reviewing the decision,” and continues to refuse comment on the ruling, and on whether it will continue to investigate and prosecute under Section 13(1).) Both the B.C. and Ontario rights commissions told Maclean’s that the federal statute is not binding on provincial tribunals, which will proceed as before.
The Canadian Jewish Congress called for the ruling to be appealed: “This is one ruling by one adjudicator,” says its CEO, Bernie Farber, adding that Section 13(1) is an “important instrument” in “protect[ing] the vulnerable.” Indeed, it is highly likely the case gets appealed—“all the way to the Supreme Court,” adds Moon. (In 2008, he authored a report for the CHRC which called for the repeal of Section 13(1)—a year ago, the section was used, unsuccessfully, to prosecute Maclean’s before the CHRC for material complainants felt was anti-Islamic.)
To Geist, the question should fall to Parliament to address. Hadjis took a “courageous stand,” says Keith Martin, a Liberal MP who has tabled a motion for the repeal of Section 13(1). That “members of the tribunal are expressing deep and profound concern” should motivate Parliament to review the act. Parliament, however, has been unwilling to touch the political hot potato. Although Section 13(1) is wildly unpopular with the Tory base (who, at a recent policy convention, voted 99 per cent in favour of its repeal), the issue is a no-win for Harper’s minority government; it risks offending the Jewish community as well as some minority communities that the party is assiduously courting.
Other members of the tribunal, meanwhile, have expressed concern over the tactics of commission staff. In the Lemire case—which came at the heels of a five-year investigation—this included hacking into the email account of a private citizen, then using it to post racist comments on the site so it could more easily be denounced. In a March ruling, CHRT chairman Edward Lustig called such methods “disturbing” and “disappointing.”
Two years ago, the commission was widely seen as “the good guys,” according to lawyer and conservative commentator Ezra Levant, author of Shakedown: How Our Government Is Undermining Democracy in the Name of Human Rights. It is now viewed with suspicion “even among editorial board members of the country’s foremost left-wing newspaper,” he says. Indeed, it’s a remarkable turnabout, with PEN Canada, the Canadian Civil Liberties Association, the Canadian Association of Journalists and lawyer Alan Borovoy, a chief architect of Canada’s rights commissions, all concerned with the commission’s impact on freedom of expression. The question on many minds is, when will the law catch up with popular sentiment?
