I’m going to be on a bus for about five hours this afternoon, en route to Edmonton, so I’m not going to have as much time as I would like to cover the decision on the Warman v. Lemire hearing, particularly as it was so, well, surprising to say the least.
First of all, I think I may perhaps owe Anthanasios Hadjis an apology.
Second of all, here’s Marc Lemire’s press release on the decision, for a little background:
Important legal decision on the validity of the Canadian Human Rights Act to censor Internet postings and online media
Tribunal ruling on the Constitutional Challenge of Section 13 expected on Wednesday Sept 2, 2009 at 9:30am (EST)
TORONTO, September 1, 2009: The Canadian Human Rights Tribunal is expected to finally release it’s ruling on the constitutional challenge of internet censorship brought by computer systems engineer Marc Lemire. In 2003 a complaint was filed against Lemire for hosting an internet message board, where comments allegedly violated Section 13 of the Canadian Human Rights Act. None of the complained of material was written or approved by Lemire, yet he was forced to endure a six year costly legal ordeal to defend his Charter guaranteed rights to freedom of speech and expression.
As part Lemire’s defence to the allegations, he challenged Section 13 and 54 of the Canadian Human Rights Act as being an unjustifiable limitation on freedom of expression and violation of the Canadian Charter of Rights and Freedoms. The Attorney General of Canada (requested by Liberal Irwin Cotler – then Justice Minister) and five interested parties intervened in the case. The constitutional challenge was heard over a four year period by the Canadian Human Rights Tribunal.
This constitutional challenge of Section 13 is the largest ever undertaken in the 32 year history of the law. During the course of the trial, evidence was brought to light that employees of the Canadian Human Rights Commission actively take part in internet websites, which the CHRC has described as neo-Nazi. The RCMP also investigated the CHRC for 8 months over criminal allegations of internet and WiFi theft based on testimony in the Lemire hearing. The RCMP was forced to abandon criminal charges because the evidence led to an American website where the RCMP has no jurisdiction.
The Canadian Human Rights Commission has been under close scrutiny since they investigated Macleans Magazine (Mark Steyn) and blogger Ezra Levant on allegations of promoting hatred and contempt against Muslims. Editorials and opinion pieces have appeared in almost every single newspaper and magazine condemning the CHRC and demanding a repeal of Section 13.
In October 2008, Prof Richard Moon, a hand-picked constitutional expert retained for over $50,000 by the CHRC, studied Section 13 and regulation of hate speech on the internet. Moon’s main recommendation was to repeal Section 13. Many organizations have publically called for an end to the censorship of CHRC. These groups include: PEN Canada, Canadian Association of Journalists, and the Frontier Centre for Public Policy. Over two dozen Members of Parliament have openly called for a repeal of Section 13, including Liberal MP Keith Martin, who tabled Private Members Motion M-446, which called for “subsection 13(1) of the Canadian Human Rights Act should be deleted from the Act:”. In 2008, the Conservative Party policy convention voted 95% in favour of withdrawing Section 13 from the Human Rights Act. Among those voting to delete Section 13 was Justice Minister Rob Nicholson.
Since 1977 not a single person has ever won a Section 13 case before the Canadian Human Rights Tribunal. The Tribunal boasts a shocking 100% conviction rate, which would make dictators like North Korea’s Kim Jong Ill salivate. In order to challenge the constitutional validity of Section 13 in a real court of law, Canadian law requires that a ruling has to be made by the Tribunal first.
Decision to be released: Sept 2 at 9:30am
The decision in the matter of Richard Warman Vs. Marc Lemire will be posted to the Internet at 9:30 am (EST) on Wednesday Sept 2, 2009. A copy of the Tribunal’s decision will be immediately available on the Freedomsite website located at http://www.freedomsite.org. The decision will also be posted at the Tribunal’s official website http://www.chrt-tcdp.gc.ca later in the day.
For more information, please contact, Marc Lemire: firstname.lastname@example.org
Blazing Cat Fur has already done a very, very good job of covering this: Lemire Decision Released: The Hate Crime Didn’t Fit Hadjis Acquits! Cites Section 13(1) Charter Contraventions:
I have determined that Mr. Lemire contravened s. 13 of the Act in only one of the instances alleged by Mr. Warman, namely the AIDS Secrets article. However, I have also concluded that s. 13(1) in conjunction with ss. 54(1) and (1.1) are inconsistent with s. 2(b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit within the meaning of s. 1 of the Charter.
Since a formal declaration of invalidity is not a remedy available to the Tribunal (see Cuddy Chicks Ltd. V. Ontario (Labour Relations Board),  2 S.C.R. 5), I will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial order against him (see Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at paras. 26-7).
Athanasios D. Hadjis
Trupeers points out Hadji’s thoughts on Section 13 (1):
 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.
Mark Steyn: This is the beginning of the end for Section 13
National Post: Hate speech law ruled unconstitutional
Ken Hynek: Marc Lemire Acquitted!
Marginalized Action Dinosaur: SECTION 13 HAS BEEN STRUCK DOWN!
FiveFeetOfFury: ‘Hate/thought crime’ law ‘unconstitutional’
Scaramouche: A sudden–and shocking–renunciation of Thought Police-type thinking
Halls of Macadamia – Flea said…
Dr. Roy: The beginning of the end…
Deborah Gyapong: Kathy Shaidle and a blast from the past
Denyse O’Leary : This just in – Infamous Section 13 hits a wall
Big Blue Wave: Celebrate with me! Hate speech law unconstitutional: rights tribunal
Read it here. You can read the decision in PDF here. You can read it on Scribd here. Also covered by Xanthippa’s Chamberpot here, The Holocaust Question Today here ( hey, I don’t pick who’s covering this, O.K.? ), Jay Currie here and here, and by the Victoria Times Colonist here:
The Canadian Human Rights Tribunal has ruled that Section 13, Canada’s much-criticized human rights hate speech law, is an unconstitutional violation of the Charter right to free expression because of its penalty provisions.
The decision released Wednesday morning by tribunal chair Athanasios Hadjis 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.
It also marks the first major failure of Section 13(1) of the Canadian Human Rights Act, an anti-hate law that was conceived in the 1960s to target racist telephone hotlines, then expanded in 2001 to the include the entire Internet, and for the last decade used almost exclusively by one complainant, activist Ottawa lawyer Richard Warman.
Wednesday’s decision is a victory over Warman by Marc Lemire, webmaster of freeedomsite.org and a prominent figure in the Canadian far right, who was supported in his constitutional challenge of Section 13 by the legal team that defended Holocaust denier Ernst Zundel.
Warman alleged that postings on Lemire’s website, written by others, contravened Section 13 in that they were "likely to expose" identifiable groups to "hatred or contempt."
Lemire responded by challenging the law itself, which was last upheld by the Supreme Court of Canada in a 1990 split decision, before the Internet age.
That decision, about neo-Nazi John Ross Taylor, upheld the law as a justifiable limit on free expression largely because of its supposedly remedial, non-punitive purpose. But Hadjis found that the pursuit of Section 13(1) cases "can no longer be considered exclusively remedial, preventive and conciliatory in nature."
Rather, the law "has become more penal in nature."
He cited Warman’s request for a $7,500 penalty against Lemire. Warman has won over a dozen other Section 13(1) cases, many leading to similar fines as well as legal restrictions on Internet activity.
Read it all here.
I don’t have time now, to read through the whole decision, and so I’ll return to this later. Thanks to everybody who’s covered this so far, and apologies to Blazing Cat Fur that I basically just ripped off his link-listing.