Barrel Strength

A major blow was struck at the basis of Canadian hate speech controls by this judgment of the Canadian Human Rights Tribunal.

In the Human Rights Tribunal decision of Athansios Hadjis, the Tribunal has ruled that the constitutionality of section 13(1) of the Human Rights Act is in grave doubt, and refused to find Lemire guilty on that basis. The specific extension of the hate-speech prohibition to the Internet was contained in section 13(2), adopted by Parliament in 2001.

The Commissioner found that the measure (suppression of free speech in the way section 13 envisages) was disproportionate, in that it was not a minimal impairment of the Charter right of free speech.

The tribunal’s task lay in “determining whether it has been demonstrated that the challenged legislation minimally impairs the Charter right or freedom.”

He found that it did not. The combination of section 13(1) with the penalty provisions contained later on in the Human Rights Act had exceeded the type of speech control that the Supreme Court was willing to countenance.

“The point is that, when assessed against the characteristics of the penalty provisions enumerated in these decisions, it is evident that s. 13(1) has become more penal in nature (irrespective of whether s. 11 Charter rights are necessarily triggered). The provision can no longer be considered exclusively remedial, preventative and conciliatory in nature, which was at the core of the Court’s finding in Taylor that s. 13(1)’s limitation of freedom of expression is demonstrably justifiable in a free and democratic society, and thereby “saved” under s. 1 of the Charter.”

The judgment further states:
“the evidence in the present case suggests that s. 13 complaints proceed to hearing, and penalties are sought, even in instances where impugned material has long since ceased being communicated. More significantly, however, the Act does not include respondents’ willingness to “change their ways” as a factor for the tribunal to consider in assessing the penalty (s. 54(1.1)).”

Because the statutory penalties exceeded the remedial, preventative and conciliatory purpose of section 13, the only rationale the Supreme Court had expressed itself willing to tolerate, the tribunal ruled that the combination of section 13 and the penalty provisions were unconstitutional, for being disproportionate remedies to the problem of hate speech.

Hadjis made some telling remarks about Richard Warman in passing, too, pointing out that at all times Warman had refused conciliation with Lemire.

The main point is that the penal process undertaken in hate speech cases clearly went beyond what the Supreme Court had found tolerable in the Taylor decision.

“As I have pointed out several times in this decision, Mr. Lemire had not only “amended” his conduct by removing the impugned material, but sought conciliation and mediation as soon as he learned of the complaint against him. The process understood by the Supreme Court was not what Mr. Lemire experienced.

[290] In my view, it is clear that Taylor’s confidence that the human rights process under the Act merely serves to prevent discrimination and compensate victims hinged on the absence of any penal provision akin to the one now found at s. 54(1)(c), as well as on the belief that the process itself was not only structured, but actually functioned in as conciliatory a manner as possible. The evidence before me demonstrates that the situation is not as the Court contemplated in both respects.”

The analysis was exhaustive, and the reasoning kept as close to the previous Supreme Court decision in R. v. Taylor as possible, so as not to overturn precedent. It is likely that this decision will stand, and if so, then hate crimes prosecutions under section 13 have been crippled.