The decision by tribunal chair Athanasios Hadjis threatens to strip the Canadian Human Rights Commission of its legal right to pursue Canadians who transmit hate through Internet sites.

Opponents of the law – Section 13 of the Canadian Human Rights Act – have long attacked it as a tool for censorship and a violation of the right of Canadians to freedom of expression.

The tribunal ruling, the first major defeat for legislation that was originally introduced in the pre-Internet age to combat racist telephone hotlines, appears to support that view.

It is also a defeat for activist Ottawa lawyer Richard Warman who has used the law more than a dozen times in the past decade to pursue authors and webmasters of Internet hate sites.

But the legal situation is further muddied because there have been two previous tribunal rulings in similar cases that took the opposite view.

In the case that led to Wednesday’s decision, Marc Lemire, webmaster of freeedomsite.org, had challenged Section 13 as unconstitutional.

The case began as a complaint by Warman against Lemire whose website contained postings that Warman alleged contravened the act and were likely to expose “identifiable groups” to hatred or contempt – specifically homosexuals and blacks.

Lemire, backed by the legal team that handled now-deported Holocaust denier Ernst Zundel’s many clashes with the law, responded by challenging the constitutionality of the law.

In a complex decision sure to be sent by the Canadian Human Rights Commission to the Federal Court of Canada for review, the tribunal sided with Warman in ruling that some racist postings on Lemire’s website contravened the act but that financial and other penalties required to be imposed on guilty parties is inconsistent with the Charter and its guarantees of freedom of thought, belief, opinion and expression.

Warman had asked the tribunal to levy a $7,500 fine against Lemire.

Lawyer Barbara Kulaszka, who represented Lemire at the tribunal, praised the decision.

“It recognizes that the provision (Section 13) is a quasi-criminal provision which has no place in human rights law,” she said. “I hope the Human Rights Commission recognizes that prosecution of hate speech should be left to criminal law.”

Kulaszka said the decision is “good for a multicultural society where there are so many ethnic groups.”

“People need to air their grievances,” she added. “We need more dialogue, not less. You can’t legislate away human emotion.”

Warman played down the decision, accusing the tribunal of legal errors, but he conceded the legal waters are now muddied.

“There are now three conflicting decisions from the tribunal,” he said. “Two have declared it constitutional and one unconstitutional. The federal court will have to make a decision. The ball is now in the court of the human rights commission and Attorney General of Canada.”

The Canadian Jewish Congress said it was pleased the tribunal had ruled that Lemire had violated Section 13 but “strongly disagreed” with Hadjis’s decision not to impose a “cease and desist” order on Lemire.

The Canadian Human Rights Commission would not comment Wednesday, saying the decision was “important” and needed close study.

The Human Rights Tribunal refuses to discuss or explain its rulings.

Any request to the federal court to review the decision has to be made within 30 days. The Supreme Court of Canada last upheld the law in a 1990, pre- Internet decision as a justifiable limit on free expression.