Go ahead, appeal Section 13

[ ED NOTE: Jesse Ferreras was kind enough to let me cross-post this article from his blog. You can read the original here.

It would be very interesting to see Section 13 appealed to a higher court. I tend to take a longer view of things, though ( not that I’m suggesting that Jesse doesn’t ) in that I think this is going to be a very long, hard campaign, not just federally, but across the provinces as well. ]

The Maclean’s order Stephen Harper to act now on repealing Section 13 of the Canadian Human Rights Act. They make a compelling case.

Supreme Court Chief Justice Beverly McLachlin once wrote that Section 13 was “too broad and invasive” and that it “intrudes on the fundamental freedom of expression.” But the Court didn’t quash it at the time. Now what’s happened is precisely what McLachlin feared.

That task was left to the Canadian Human Rights Tribunal, which ruled that Section 13 contravenes the Charter of Rights and Freedoms. And now we have the Canadian Jewish Congress trying to exacerbate whatever confusion exists around that ruling and the Canadian Human Rights Commission remaining mum about its impacts.

All signs point in favour of Harper stepping in. He’s had a report from a commissioned law professor to repeal the law – duly buried thereafter by the Canadian Human Rights Commission.

In a way I can understand the Prime Minister’s intransigence. It’s his job to protect his country’s laws and make a valiant effort to uphold them. His past position on human rights commissions now puts him at odds with his job and he’s forced to make a choice between appealing to his principles or those that drive his work as a Prime Minister. He really is at a crossroads and I completely understand him not acting too quickly on repealing the section.

Though I’d be perfectly happy to see the Prime Minister repeal Section 13, I actually hope that the Government of Canada appeals the Warman v. Lemire decision. It’s already evaluated the legitimacy of Section 13 and did it with serious reservations – McLachlin’s own, for example. I want to see how the Supreme Court of Canada reacts when it discovers that all it’s feared about the law has come to pass.

Furthermore, I want to see how Richard Warman’s tactics of “maximum disruption” stand up in our country’s highest court. I can’t imagine that a federal judiciary would have kind things to say about a man who calls Jews scum, gays sexual deviants and encouraged people to seek out copies of “Mein Kampf.” Much of it while working on taxpayer dime.

I can’t be certain that the Supreme Court will give Warman the drubbing he deserves. What I can be certain of is that the Court doesn’t have a three strikes rule – if the law has failed in its purpose this time, it’s impossible for me to believe it’ll stand up to the rigorous analysis of our judiciary.

Of course there’s the risk that the Court leaves Section 13 – there’s always the risk of an unfavourable ruling in any court case. Here, though, the Section 13 baddies have been very bad boys. If before they were sent to bed without supper, now they’re on probation.


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