TORONTO — Canadian Jewish Congress (CJC) last week commended the Canadian Human Rights Commission for seeking judicial review of the decision in the case of Warman v. Lemire, which called into question the constitutionality of the Canadian Human Rights Act’s (CHRA) section on online hate.

Last month, a human rights tribunal ruling in the case, which involved a number of alleged anti-Semitic and homophobic postings on administrator Marc Lemire’s website, said a section of the CHRA that imposes quasi-criminal penalties is unconstitutional. The one-man tribunal, Athanasios Hadjis, said Lemire did promote hatred with an article titled “AIDS Secrets,” but he wouldn’t apply the provisions of the act to him.

Opponents of the CHRA’s Section 13, which addresses Internet hate promotion, hailed the decision as a breakthrough, but supporters of the provision said the adjudicator’s decision isn’t binding and should be appealed.

The decision turned on a 1998 amendment to the CHRA that added penalty provisions to the act. The provisions, Hadjis stated, substantially altered the nature of Section 13 from being primarily “conciliatory, preventative and remedial” to more closely resembling criminal court remedies. As a result, an earlier Supreme Court ruling in the John Ross Taylor case could be revisited.

In that 1990 case, the Supreme Court ruled Section 13 was constitutional even though it violated the Charter guarantee to free expression, because its impact was minimal and, given the benefits in protecting minorities, was warranted in a free and democratic society.

But “since the 1998 amendments, [Section 13 has] lost the exclusively compensatory and preventative features that characterized it in the eyes of the majority in Taylor.” Hadjis said.

Canadian Jewish Congress – an intervenor in the case, along with B’nai Brith Canada and Friends of the Simon Wiesenthal Center – called for an appeal. Joel Richler, Congress’ honorary legal counsel, said at the time that Hadjis should have followed a well-established constitutional doctrine of “reading out” the penalty provision while applying the rest of the CHRA.

“CJC agrees that the decision of the Canadian Human Rights Tribunal in this case is based on significant errors of law.  These errors raise important questions about the constitutionality of [Section 13] that require clarification,” said Congress CEO Bernie Farber.

“We support the Canadian Human Rights Commission in its application for judicial review and urge the Federal Court to rectify the errors of the tribunal’s decision in Lemire.”