TORONTO- Canadian Jewish Congress (CJC) said today it believes the decision in the case of Warman v. Lemire is wrong in law and should be appealed. CJC also noted it believes section 13 of the Canadian Human Rights Act (CHRA) remains constitutional.

The case involves a complaint filed against Marc Lemire, webmaster of freedomsite.org, by Ottawa lawyer Richard Warman, for a number of alleged antisemitic postings on Lemire’s web site.

“We are pleased that Canadian Human Rights Tribunal Member Athanasios Hadjis found that some of the material posted by Lemire violated s. 13 of the CHRA. However, we strongly disagree with his decision not to impose a cease and desist order because he believed the penalty provisions in the Act render s. 13 unconstitutional,” said Joel Richler, CJC National Honourary Legal Counsel.

“Reasonable people can differ regarding the penalty provisions of the Act – that is a matter for the Federal Court of Canada to determine,” said Richler.

“The Supreme Court of Canada clearly ruled that s. 13 was constitutional long before the penalty provisions were added to it. As such, Mr. Hadjis should have simply ignored the penalty provisions and applied the appropriate cease and desist order against Mr. Lemire,” he added.

“This action is known as the doctrine of ‘reading out’ – a well-established practice endorsed by the Supreme Court of Canada under which the portion of a law that may be unconstitutional is edited out but the remaining constitutional elements are applied. Mr. Hadjis should have ‘read out’ of section 13(1) the penalty provisions and preserved the rest of the section. Mr. Hadjis failed to consider this option, even though the Supreme Court of Canada has been clear that section 13(1) is perfectly constitutional,” Richler explained.

“This was a decision by a single member of the Canadian Human Rights Tribunal. We should recall that there have been two previous decisions by the Tribunal that rejected the constitutional challenges to s. 13. In order to clarify the law, we strongly urge the Canadian Human Rights Commission and Mr. Warman to appeal this decision,” CJC CEO Bernie Farber said.

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