Although Parliament voted last June to repeal section 13 of the Canadian Human Rights Act, which bans hate speech on the Internet discussed in this previous post, it has yet to receive Royal Assent by the Senate. The Federal Court of Canada ruled on Tuesday October 2, 2012 that the Canadian Human Rights Tribunal erred in law when it refused to apply Section 13 of the Canada Human Rights Act following a hearing into a complaint by Ottawa lawyer and activist Richard Warman.
The 2009 Warman case and section 13 of the Act were previously discussed on Slaw here and here. To recap in short, Richard Warman filed a complaint on November 24, 2003 with the Canadian Human Rights Commission alleging that Mr. Lemire had communicated or caused hate messages to be communicated over the Internet, in breach of s 13 of the CHRA. He alleged that these messages discriminated against persons or groups of persons on the basis of their religion, race, color, national or ethnic origin, and sexual orientation, because the content exposed them to hatred or contempt.
In September 2009, the Canadian Human Rights Tribunal found that although one of the articles Mr. Lemire had posted on his website did contravene the Canadian Human Rights Act hate speech provisions, these provisions were unconstitutional as it infringed unjustifiably on the Canadian Charter of Rights and Freedoms' guarantee of freedom of expression.
The case was appealed at the Federal Court by the Canadian Human Rights Commission and Justice Richard Mosley had to respond to three issues raised by the Commission:
1. Whether the Tribunal erred in law when it found that the manner by which the Commission exercises its statutory mandate could render sections 13 and 54(1)(a) & (b) of the CHRA unconstitutional
2. Do ss 13, 54(1) and (1.1) of the Act violate s 2(b) of the Charter and if so, are they saved by s 1 of the Charter?
3. What is the appropriate remedy, if ss 13, 54(1) and (1.1) of the Act, read together, are found to be unconstitutional? Is severance available?
Justice Mosley rendered his 69-page decision on October 2, 2012. What is important in this decision follows.
Justice Mosley did recognize that the Federal Government voted to repeal section 13 and leave the subdual of hate speech to criminal prosecution. However, Justice Mosley concluded,
Notwithstanding the recent legislative effort to repeal s13, I have no difficulty concluding that the objective of the enactment ["the suppression of hate speech and the promotion of equality] continues to be substantial and pressing."
Hate speech has little value and s 13 minimally impairs freedom of expression. Considering the deference this court owes to Parliament, considering the minimal value hate speech possesses and considering the context and the objective of the Act, I find that the minimal harm caused by s 13 to freedom of expression is far outweighed by the benefit it provides to vulnerable groups and to the promotion of equality.
I conclude, therefore, that s 13 and s 54 of the Act are justifiable in a free and democratic society and that the Tribunal erred in declining to apply the legislation.”
Justice Mosley did find that the Act’s penalty provisions, ss 54(1)(c) & (1.1) were unconstitutional, saying they “fundamentally altered the nature of the section 13 process and brought it uncomfortably close to the state’s ultimate control measure, criminal prosecution.”
However, Mosley found that the Tribunal should have “severed” the penalty provisions and applied section 13 and its other remedies. Those parts of the act are “justifiable in a free and democratic society,” and thus, the tribunal erred by declining to apply them.
The Tribunal erred in failing to consider whether s 13 remained constitutionally viable if it declined to apply the penalty provisions. The adjudicator erred in adopting an all or nothing approach to the constitutional remedy. The balance of s 13 could stand without applying the later enacted punitive provisions."
For example, a remedy of cease and desist would have sufficed under the circumstances.
Thus, the application for judicial review was granted and the matter was sent back to the Tribunal to issue a declaration that the publication of the article “AIDS Secrets” by the respondent Marc Lemire constituted a breach of s 13 of the Canadian Human Rights Act and to determine a proper remedy for the breach.
The Federal Court declared that ss 54 (1) (c) and 54 (1.1) of the Canadian Human Rights Act are of no force or effect and awarded cost to Warman.
From the ramifications of this case, we can see that the application of section 13 is not yet dead. The Canadian Human Rights Commission is required to enforce it until the effects of Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom) come into force one year after it receives Royal Assent; if it receives Royal Assent in the Senate.
Lemire said to the media, an appeal will be considered if he can obtain financial support from his supporters.
While we maintain the right to free speech, we also value a society free from hate speech and prejudicial condemnation. As we can see with this case and several others on the topic, the balancing act between the freedom from and freedom to is a very delicate one.