The Canadian Human Rights Tribunal decision to acquit Marc Lemire of Section 13 transgressions on account of the unconstitutionality of the hate speech provisions has been appealed. Jennifer Lynch’s Commission is spearheading this challenge to federal court, in which they claim the following errors were made by the Tribunal:
1) The Tribunal erred when it examined the manner by which the Commission investigated the complaint.
2) The Tribunal erred when it refused to apply Section 13 and its related penalty provision 54(1) in its entirety when the constitutional concern was only over the penalty provision.
In regards to (1), I believe that it is the norm in real courts that if the constitutional rights of the accused were steamrolled by the investigators, the charges would be thro. After Lynch professed that the CHRC follows an ambiguous concept of “public service values and ethics” (rather than having their own ethics code), wouldn’t police procedures be included in that? It is highly unethical to categorically state before a crown that investigational tactics cannot be examined by the defence.
With regards to (2), Lynch is gnawing on the bone that Tribunal member Athanasios Hadjis threw to them – I believe Hajis saw how Section 13 was being abused and wanted no part of it, while realizing that the Supreme Court of Canada had already declared the section constitutional in the Taylor decision. True, Hadjis stated in his original decision that he refused to apply Sec 13 because of the penalty provision, sec 54(1), but a closer look at his findings indicated that he had Sec 13, not 54(1), squarely in his constitutional crosshairs. It is the proportionality clause in the Oakes Test, laid down by the Supreme Court of Canada, in which s. 13 is declared unconstitutional:
…there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance…
The SCC in Taylor stated that the only way that s. 13 is proportional is if it is pursued in a conciliatory manner, with or without the penalty provision in s. 54(1). As Hadjis states:
s. 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
The Commission pursued this investigation at the outset in a punitive, penalty-focused manner. It is very likely that the complainant would not have brought this complaint if it was not for the penalty provisions he could inflict upon the defendant.
Lynch’s waste of our tax dollars must be stopped.