Hate-speech law violates Charter rights, tribunal rules
From Thursday's Globe and Mail Last updated on Wednesday, Sep. 02, 2009 11:37PM EDT
A federal law governing hate speech violates Canadians' charter rights to freedom of expression, the Canadian Human Rights Tribunal has ruled.
The development could give more ammunition to those who complain that the Canadian Human Rights Commission, which refers cases to the tribunal, is engaging in censorship by attempting to restrict what people say on the Internet.
The decision, released in Ottawa Wednesday, also seems to call into question whether the tribunal should be involved at all in policing online content through Section 13 of the Canadian Human Rights Act.
“This case raises questions about the substance of the law itself,” said Michael Geist, a University of Ottawa law professor who holds the Canada Research Chair in Internet and E-commerce Law. “This will only build the momentum for another examination of how we approach this.”
At issue was a complaint lodged with the tribunal against Marc Lemire, webmaster of freedomsite.org. Ottawa lawyer Richard Warman alleged that the messages posted on the site were discriminatory and exposed minority groups to “hatred and contempt,” key language under Section 13 of the law.
Mr. Lemire responded by requesting that the law be “declared inoperative” because it is inconsistent with the Charter of Rights and Freedoms. Tribunal member Athanasios Hadjis agreed. He wrote in the ruling that the law was originally intended to be “remedial, preventative and conciliatory in nature,” rather than a means to hand out penalties.
Section 13 defines it as “discriminatory” for an individual or group “to communicate telephonically or to cause to be so communicated … any matter that is likely to expose a person or persons to hatred or contempt” based on characteristics such as race, religion, sexual orientation, and so on.
Advocates call the law a necessary control on hate speech in an age where the Internet makes the spread of messages easier and faster. Opponents say it's censorship and has no place in a free society.
The tribunal's decision, which will likely be appealed, is not binding beyond Mr. Lemire's case. However, it moves the debate forward, said University of Windsor law professor Richard Moon.
“It creates a new situation in which all the different legal and political actors have to think about what their response is,” Prof. Moon said.
In 2008, Prof. Moon wrote a report for the CHRC about the role of Section 13 in the Internet age that said the law should be repealed. He wrote that Internet use means that “any attempt to exclude all racial or other prejudice from the public discourse would require extraordinary intervention by the state.”
But Mr. Warman, who brought the case, disagrees.
“There is no unlimited right to speech,” he said. “The fact is, this was a hate website and it attracted hate.”
Mr. Warman cited postings by a visitor to freedomsite.org that, in a separate case, the tribunal called “as vile as one can imagine and not only discriminatory, but threatening to the victims.”
Mr. Lemire said webmasters are not responsible for content on message boards.
“It's not for the state to … decide what beliefs we can have,” he said. “People shouldn't be put through a six-year-long hearing even if they're Nazis, even if they're communists, even if they're racists.”
Bernie Farber, the CEO of the Canadian Jewish Congress, said all hate speech is a potential trigger.
“Racist war, from the ethnic cleansing in Cambodia, to the Balkans, to Darfur, to the Holocaust, did not start in a vacuum,” he said.
“Hateful words do have an effect. … The Internet cannot and should not be a wild frontier where anything goes.”