News the Canadian Human Rights Tribunal has ruled the country’s anti-hate law unconstitutional is a significant victory for free-speech advocates in the battle between right-wingers and lawyer Richard Warman.
In making his decision, tribunal vice chairman Athanasios Hadjis noted he lacked the authority to declare the Canadian Human Rights Act’s anti-hate provision invalid.
Nevertheless, he elected to ignore it in a case involving Warman and Marc Lemire, webmaster of freedomsite.org. He concluded s. 13(1) of the act is “inconsistent” with the Charter’s provision on freedom of thought, belief, opinion, and expression.
The case stems from Warman’s allegations about comments on freedomsite.org. In one complaint, the only one which Hadjis deemed to have merit, Warman took issue with a column titled “AIDS secrets: What the government and the media don’t want you to know.”
In it, the author links the AIDS crisis to the U.S. black population. The article claimed African-Americans are between 14 to 20 times more likely to get infected than white people and that blacks account for 90 per cent of all AIDS infections among heterosexuals.
For Warman, those words and other web postings he found contravened s. 13(1) by exposing minority groups to hatred or contempt.
Hadjis’ conclusions about the constitutionality of s. 13(1) centres on the punitive aspects of the law. Noting the Supreme Court of Canada already dealt with the issue in 1990, he argued that what has changed since then is the imposition of a fine and the expansion of the hate-speech provisions to the Internet during revisions to the Human Rights Act in 2001.
It is that aspect that Hadjis determined to be problematic given the earlier Supreme Court decision’s focus on a conciliatory, rather than penal, approach in dealing with restrictions on free speech under the act.
The many online commentators who have criticized Warman’s relentless pursuit of Internet postings will no doubt declare victory. But it’s worth pointing out the Canadian Human Rights Commission, which supported Warman’s case, can appeal Hadjis’ decision to the Federal Court. It should do so.
Lemire and his allies make valid points. But as Hadjis noted, the Supreme Court in its 1990 decision emphasized the importance of protecting Canadians against propaganda that undermines their dignity and erodes society’s spirit of tolerance.
Whatever the outcome, then, the courts need to reconsider the issue in light of Canada’s changing face. Moreover, the case represents the ongoing question of competing rights as people like Warman and Lemire make claims that are seemingly irreconcilable.
It’s an issue requiring clarification that the Ontario Human Rights Commission has taken up recently. “Issues of competing rights arise with increasing frequency in the context of human rights and constitutional law litigation,” the Ontario commission wrote in its application to intervene in the Superior Court case involving a sexual assault victim who declined to remove her niqab while testifying before a judge.
The woman, of course, touted freedom of religion while the accused argued that allowing her to keep the veil on impaired his right to defend himself.
It’s on exactly these types of questions that Canadians need answers. Hadjis’ ruling represents an important contribution, but we need to hear the court’s verdict on where the legal boundaries lie when rights collide.
- Glenn Kauth
