[ ED NOTE: you can read the original article on Scary’s blog here. ]
How unfortunate to live on the Left Coast, in which I wake up hours after big news has been made in the East. Today, a decision has finally come down from the Canadian Human Rights Tribunal in a landmark section 13 case.
Richard Warman, the most prodigious Section 13 litigant in Canadian Human Rights history, was the complainant, and aided by the Canadian Human Rights Commission. The defendant was Marc Lemire, a webmaster whose site, Freedom-Site, is frequented by white-supremacists. You can read more of the background here. Section 13(a) of the CHRA states:
13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
“Telecommunications” has been expanded to include the internet in 2001.
The case has been an unmitigated disaster for the CHRC. During the course of the trial, Lemire has continually shone spotlights on the way the CHRC works. It produced the famous quote from CHRC investigator Dean Steacy, when asked what value he placed on freedom of speech when he investigates:
Freedom of Speech is an American concept, so I don’t give it any value.
Both Richard Warman and CHRC staff also testified that they had memberships to neo-nazi websites, on which they goaded others to commit hate crimes with anti-Semitic posts. There was also testimony that indicated the CHRC may have hacked into a private citizen’s internet connection to cover their tracks, though investigations have remained inconclusive.
Lemire denied that the postings on his website or other postings he had made on other sites were discriminatory. But more importantly, Lemire also argued that Section 13(1) of the CHRA contravenes the Charter of Rights and Freedoms, specifically section 2(b). This is the same stance that all of us Speech Warriors™ have taken in the past several years. If you’re not familiar with the charter, 2(b) reads as follows:
Everyone has the following fundamental freedoms: 2(b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication
Tribunal member Athanasios Hadjis, who wrote the decision, agreed with Lemire, that section 13(1) contravenes the Charter. How could it be otherwise? Of course, the Charter contains a subjective provision in s.1 that states, “subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This places our precious freedoms, at all times, in the hands of our unelected judiciary, to dispense with them as they see fit. So this case, and many others in which our precious freedoms are threatened by the state, rests at the whim of an appointee of the state. To paraphrase Steacy, I guess freedom is an American concept, so Canadians don’t give it much value.
Magnanimously, Hadjis declined to exercise that loophole in this case. Our dependence on the benevolence from those privileged to have been appointed to rule over us continues.
But Hadjis’s decision includes affirmation for some of the ugliest aspects of section 13. Line  bastardizes Section 15 of the Charter (equality before the law) to justify controlling everyday speech in the name of equality. Line  maintains that Section 13, while contravening the Charter, is still a proportionate tool for an appropriate objective. In line , it is upheld that truth is not a defence. Line  argues that lack of intent is not a defence, unless the respondent immediately kowtows to the demands of the complainant.
There is also no sanction (as far as I have read) for the serious misconduct of Richard Warman and the CHRC in the decision. I guess everything they did was within their Code of Ethics. Which isn’t saying much because they didn’t even have a Code of Ethics.