A controversial law which has been used to prosecute individuals deemed to have offended minorities, has been found to violate the right to free speech.
The Canadian Human Rights Tribunal last week ruled that Section 13 of the Canadian Human Rights Act violates the right to free expression because it carries the threat of punitive fines.
The surprising decision by Tribunal member Athanasios Hadjis leaves several “hate speech” cases in limbo, and appears to strip the Canadian Human Rights Commission of its controversial legal mandate to pursue ‘hate’ on the Internet, which it has strenuously defended against complaints of censorship.
Section 13(1) was an anti-hate law conceived in the 1960s to target racist telephone hotlines, but was expanded in 2001 to include the entire Internet.
For the last decade, however, it has been used almost exclusively by one complainant, activist Ottawa lawyer Richard Warman.
Mr. Warman’s first big loss is a victory for the respondent Marc Lemire, webmaster of freeedomsite.org.
However, it is thought that the ruling will be appealed to federal court, where CHRT rulings can be appealed. Another less likely outcome is for Parliament itself to repeal or amend Section 13, a law that even supporters say needs updating in the age of the Internet.
“No matter what happens, this decision is going to federal court,” Mr. Lemire said. “This is the beginning of the end for Section 13 now. This law is 32 years old. Not a single person has ever won until today. But did I really win? I have given up six years of my life. The process is the punishment.”
Mr. Warman, a former investigator for the CHRC, brought a complaint against Mr. Lemire in 2003, after monitoring his website for almost a year. He alleged that postings on the discussion forum, mostly written by others, contravened Section 13 in that they were “likely to expose” identifiable groups to “hatred or contempt.”
In all but one case, Mr. Hadjis decided that these postings either did not contravene Section 13(1), or that Mr. Lemire cannot be held responsible for what others posted on his website.
However, Section 13(1) remains valid Canadian law, despite the Tribunal’s ruling. Its constitutionality was last upheld by the Supreme Court of Canada in a 1990 split decision, before the internet age.
That decision upheld the law as a justifiable limit on free expression largely because of its non-punitive purpose. But Mr. Hadjis found that that, today, the law “has become more penal in nature,” making it an unjustifiable limit on freedom of expression.
Ever since a 1998 amendment to allow the Tribunal to levy fines up to $10,000 — payable to the government — the pursuit of Section 13(1) cases “can no longer be considered exclusively remedial, preventative and conciliatory in nature,” he wrote.
Ezra Levant, a blogger who has led the campaign against human rights hate speech law, said the ruling “shows that the CHRC has been acting illegally for many years”.