Lemire Decision Appealed

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.

h/t BCF (Cross-posted at SF)

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8 Responses to Lemire Decision Appealed

  1. Harry Abrams says:

    “..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…”

    No.

    When Section 13 complaints are accepted for processing, the focus is about removing material that is unconstitutionally hateful. There’s also an attempt at mediation to resolve the complaint without going to a hearing.

    Also Mr. Morrow does not appear to understand that a complainant does not “automatically” receive money for lodging a complaint.

    The Tribunal might order a fine to be paid to the complainant Only if the respondent has significantly retaliated for asking for extreme material to be removed.

    On example of this was in the case of Warman V. Kyburz. After the complaint was lodged, Mr. Kyburz contacted Warman’s employers and tried to get him fired. This was considered a retaliation.

    Outside of this, when fines are levied under section 13, they are to be paid to the government, not an individual.

    Even this may change. In my own complaint concerning Topham, we have asked that the monetary fine provision be waived. We just want to see removal of some extremely hateful material posted online.

    If there’s a positive decision and such an order, and Topham (or someone like him) doesn’t comply, then it may be subject to criminal contempt, which is another matter.

  2. Kevin says:

    A potential upside is that the Court could declare s.13 itself to be unconstitutional.

  3. Abrams:

    Notwithstanding your efforts to put a humane face on your own organization’s Section 13 complaint, the mechanisms still exist by which a complaint can be processed in a punitive, penalty-focused manner. This has proven to be financially lucrative for the complainant if (s)he can swing it to be called by the CHRC as an “expert witness”.

    In the processing of many of the complaints, only lip service is given to mediation. Many Tribunal decisions do not discuss any efforts towards conciliation. From Warman vs Tremaine:

    “…after he was served with the complaint, he refrained from posting any messages and that at one point he even disavowed and repudiated all of his messages…”

    Nevertheless, the Tribunal still imposed a $4,000 penalty. In another decision, the Tribunal stated that part of the purpose of s.13 is to “reflect society’s opprobrium for the respondent’s conduct”, which is the very definition of punitive.

    In Warman vs Lemire, there is much evidence from the complainant’s own words that he is engaged in a “campaign of maximum disruption”. I stand by my comment that the penalty provision provides considerable motivation for this complaint.

    We can discuss at a later date how you came up with the phrase “unconstitutionally hateful”. That one made me chuckle. Was a constitutional ban on an emotion passed in some little-known amendment I haven’t seen yet?

  4. Kevin:

    In order for that to happen, this would first need to get its way to the Supreme Court. There, they would require significant reason to revisit Taylor.

    It would be a massive upside indeed. But not very likely.

  5. Harry Abrams says:

    “This has proven to be financially lucrative for the complainant if (s)he can swing it to be called by the CHRC as an “expert witness”.”

    Uh huh. Did you just make this up and post it because you thought it sounded good?

    A complainant can’t also be an expert witness.

  6. Not in the same complaint, no.

  7. “When Section 13 complaints are accepted for processing, the focus is about removing material that is unconstitutionally hateful. There’s also an attempt at mediation to resolve the complaint without going to a hearing.”

    Alas, but Richard Warman waived the mediation process to go on to Tribunal in Warman v. Lemire – and if you read the Hadjis decision in Warman v. Lemire, you’ll see that one of Hadjis’ main reasons for declaring Section 13 unconstitutional was the addition of S. 54(1)c – a rather vindictive measure that does not serve the purpose of simply ‘removing material’.

    By the way, I did not write this post. Give credit where it’s due.

  8. Kevin: I would love to see this go to the Supreme Court, straight into McLaughlin’s lap.

    But now I’m drooling, so I’ll stop typing.

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