TORONTO — A human rights tribunal last week ruled that a section of the the Canadian Human Rights Act (CHRA) that imposes quasi-criminal penalties is unconstitutional.
Ezra Levant
The one-man tribunal, Athanasios Hadjis, said that while web administrator Marc Lemire did promote hatred through an article titled “AIDS Secrets,” he would not 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, though supporters of the provision say 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 one that was primarily “conciliatory, preventative and remedial” to one that more closely resembles criminal court remedies.
As a result, an earlier Supreme Court of Canada decision in the John Ross Taylor case could be revisited, he stated.
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.
“However,” Hadjis stated, “the [Supreme Court] held in Taylor that… Section 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… Section 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.”
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 Hadjis should have followed a well-established constitutional doctrine of “reading out” the penalty provision while applying the rest of the CHRA.
Congress CEO Bernie Farber said “what the decision has done is confuse everybody.”
Two other tribunal judgements recently upheld Section 13. He said the case should be appealed to the Federal Court and perhaps the Supreme Court.
Ezra Levant, author of Shakedown, a critique of human rights commissions, called Hadjis’ decision “enormously significant.”
The issues were thoroughly debated by phalanxes of lawyers and took years to be resolved. “This is a major treatment of the law” decided by the vice-chair of the Canadian Human Rights Commission (CHRC) tribunal. Though “not technically binding [on other tribunals], it is effectively binding,” Levant said.
Furthermore, the judgement shows how the temperament of the commission has changed since the Taylor decision. It has become “aggressive and bullying, entrapping people,” Levant said.
The case continued even after Lemire removed the postings in question and agreed to mediation – remedies that were contemplated in the Taylor case.
“They [the CHRC] refused,” Levant said. “They wanted to grind him down.”
Levant was even more blistering in his critique of Jewish community organizations, which he dubbed “the official Jews.”
Congress is making “a strategic error” in calling for an appeal, he said. “You have domino after domino falling” with pressure building in media editorials, legal opinions and even in the commission itself to end Section 13 cases.
“Human rights commissions have been denormalized. They’re laughingstocks,” he said.
Nevertheless, Jewish organizations continue to push for appeals, in effect calling for the censorship of expression. Jews are coming across “as whiners who want to shut you down, not debate you. Is this the image we want to project to 33 million Canadians, that we’re thin-skinned whiners?” Levant asked.