The shocking decision by Tribunal member Athanasios Hadjis leaves several hate-speech cases in limbo, and appears to strip the Canadian Human Rights Commission of its controversial legal mandate to pursue hate on the Internet, which it has strenuously defended against complaints of censorship.

It also marks the first major failure of Section 13(1) of the Canadian Human Rights Act, an anti-hate law that was conceived in the 1960s to target racist telephone hotlines, then expanded in 2001 to include the entire Internet, and for the last decade used almost exclusively by one complainant, activist Ottawa lawyer Richard Warman.

Mr. Warman’s first big loss is a victory for the respondent Marc Lemire, webmaster of freedomsite.organd a prominent figure in the Canadian far right. Typically for the messy state of Canada’s perennial hate speech debate, public reaction to the ruling yesterday was polarized, running the spectrum from glowing praise for the “bold” Mr. Hadjis, to criticism that his “outrageous” conclusion is “vulnerable on judicial review.”

All sides seem to agree, however, that the stage is set for pitched battle in federal court, where CHRT rulings can be appealed. Another less likely outcome is for Parliament itself to repeal or amend Section 13, a law that even supporters say needs updating in the age of the Internet.

Neither the CHRC nor Mr. Warman would comment.

“No matter what happens, this decision is going to federal court,” Mr. Lemire said. “This is the beginning of the end for Section 13 now. This law is 32 years old. Not a single person has ever won until today. But did I really win? I have given up six years of my life. The process is the punishment.”

Mr. Warman, a former investigator for the CHRC, brought a complaint against Mr. Lemire in 2003, after monitoring his website for almost a year.

He alleged that postings on the discussion forum, mostly written by others, contravened Section 13 in that they were “likely to expose” identifiable groups to “hatred or contempt.” Mr. Warman later urged the CHRC investigators to expand their investigation to other websites he believed Mr. Lemire was involved with, but to “hold off on informing” Mr. Lemire “until the police take a good look at it.” No criminal charges were ever filed.

In all but one case, Mr. Hadjis decided that these postings either did not contravene Section 13(1), or that Mr. Lemire cannot be held responsible for what others posted on his website.

Mr. Hadjis found Mr. Lemire violated the law in one case, by posting an article called “AIDS Secrets,” written by an American neo-Nazi, which Mr. Hadjis found was “rife with hyperbole and moral condemnation. Homosexuals, and blacks to a lesser extent, are denigrated as purveyors of a ‘killer’ that is on the loose, agonizingly destroying the lives of American children and adults alike.”

Even with this finding, however, Mr. Hadjis declined to make any order against Mr. Lemire. As a statutory tribunal, Mr. Hadjis does not have the legal authority to officially declare a law unconstitutional. But if he finds it would be unconstitutional to enforce it, he can do as he has done, which is to “simply refuse to apply these provisions.”

Part of his motivation was that virtually all the offending material was removed either before or shortly after Mr. Lemire received word of the complaint against him.

“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,” Mr. Hadjis wrote. “The problem had thus already been eliminated, yet the complaint continued to be processed.”

Section 13(1) remains valid Canadian law, despite this ruling. Its constitutionality was last upheld by the Supreme Court of Canada in a 1990 split decision, before the Internet age. That decision, about neo-Nazi John Ross Taylor, upheld the law as a justifiable limit on free expression largely because of its remedial, non-punitive purpose. But Mr. Hadjis found that, today, the law “has become more penal in nature,” and this renders it an unjustifiable limit on freedom of expression.

Ever since a 1998 amendment to allow the Tribunal to levy fines up to $10,000 — payable to the government — the pursuit of Section 13(1) cases “can no longer be considered exclusively remedial, preventative and conciliatory in nature,” he wrote. He cited Mr. Warman’s request for a $7,500 penalty against Mr. Lemire. Mr. Warman has won over a dozen other Section 13(1) cases, many leading to similar fines, payments to himself, and legal restrictions on Internet activity.

This criticism about a punitive law masquerading as a remedial one echoes that of Richard Moon, a law professor hired by the CHRC last year to provide an expert analysis of their online hate speech mandate. In essence, his advice was that it could not be done fairly, and so should not be done at all.

Prof. Moon said yesterday’s decision is “obviously a significant moment in the history of Section 13, but it seems like it is in some important sense inconclusive.”

He said the ruling has no weight as legal precedent, and could theoretically be ignored by future tribunals, but in practice it is impossible to ignore, and it hints at a fundamental problem with the law. “As soon as the Supreme Court confirmed that the scope of Section 13 was narrow, and confined to extremely hateful messages, then it was highly unlikely that we were going to have a kind of regular human rights process that involves conciliation between the parties,” he said. “That was always something that we could have foreseen.”

“We still believe Section 13 is constitutional. There seems to be some major difference of opinion within the Tribunal itself,” said Bernie Farber, CEO of the Canadian Jewish Congress, referring to previous constitutional challenges of Section 13 that went the other way.

Marvin Kurz, legal counsel to B’nai Brith, which was an intervenor in this case along with the CJC and others, wondered why Mr. Hadjis did not simply “read out” the penalty section — that is, ignore it, but allow the actual hate speech section to stand. “Not only did he not do it, but he failed to explain why he did not consider the alternative,” Mr. Kurz said. “It’s like if the police act wrongly in a criminal case, you don’t throw out the criminal law. That’s what he’s done here, and that doesn’t make sense to me.”

Ezra Levant, a blogger who has led the campaign against human rights hate speech law, said the ruling “shows that the CHRC has been acting illegally for many years,” and it forces the Conservative government to make a “new kind of decision” about whether to appeal.

“If they launch an appeal, they are casting their lot with the censors,” he said.

Pearl Eliadis, a human rights lawyer and a defender of Section 13, played down the importance of the ruling and said Mr. Hadjis “just got it wrong. With respect, it’s constitutionally not within the normal way that these provisions are dealt with.” She said he should have ignored the offending penalty section and upheld the law.

Bruce Ryder, a constitutional law professor at York University, said Mr. Hadjis was correct to find that the penalty provision “exacerbated the chilling effect” on freedom of expression. But he said Mr. Hadjis’ reasoning “broke down at the end,” and he should have rejected the penalty provision. He also wondered how Mr. Lemire was acquitted over the posting of an article that explicitly denied the Holocaust, which he called “outrageous and inconsistent with jurisprudence,” and makes the entire ruling “vulnerable on judicial review.”

Mark Steyn, a conservative author who was the target of a prominent hate speech complaint over his writing in Maclean’s, said Mr. Hadjis’ realized “that there is no future for Section 13 because of the damage done to it by the dress-up Nazis of the CHRC and the sordid racket of Richard Warman.”

“It makes explicit that Section 13 has no friends,” he said.

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BACK STORY

Section 13 of the Canadian Human Rights Act empowers the commission to deal with complaints regarding the communication of hate messages by telephone or on the Internet: 13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination. Source: Canadian Human Rights Commission

Excerpt from ruling: “I have determined that Mr. Lemire contravened s. 13 of the Act in only one of the instances alleged by Mr. Warman, namely the AIDS Secrets article. However, I have also concluded that s. 13(1) in conjunction with ss. 54(1) and (1.1) are inconsistent with s. 2(b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit within the meaning of s. 1 of the Charter. Since a formal declaration of invalidity is not a remedy available to the Tribunal…. I will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial orderagainsthim.” Signed by Athanasios D. Hadjis

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HATE LAW: A LONG & ROCKY PATH

1966

Canada’s hate law has its roots in the Report of the Special Committee on Hate Propaganda in Canada (also known as the Cohen Committee), released in 1966. The report described the serious psychological harm caused by hate propaganda and noted that hate messages can also lead to an increase in discrimination.

1977

After an early draft of the legislation that did not include provisions for dealing with hate messages stalled and died in Parliament in 1975, an updated bill (C-25) was introduced the following year. It passed and received royal assent on July 14, 1977, and became the Canadian Human Rights Act, Chapter 33.

1979

Prominent neo-Nazi John Ross Taylor was ordered by the Canadian Human Rights Tribunal to shut down a telephone hotline that offered a recorded white power message. He refused, and was jailed for contempt.

1990

Related to Mr. Taylor’s case, the Supreme Court ruled that the section did in fact violate the Charter right to freedom of expression, but it passed the “Oakes test,” which means it is a justifiable breach.

1998

A subsection allowing the tribunal to order a person found to be spread hate messages to pay compensation of up to $5,000 to the victim was amended to expand the tribunal’s punitive powers. The federal government reasoned that raising the penalty limit under the act from $5,000 to $20,000 would ensure that tribunals had the discretion to award an amount that was fair in the circumstances.

1999

Justice Minister Anne McLellan, pictured above, established a panel to review the act. Its report recommended that “the prohibition of hate messages in the act be broadened to encompass both existing and future telecommunication technologies in federal jurisdiction.” 2001

Canada’s antiterrorism bill (C-36) further amended the act to include the communication of hate messages over the Web.

2002

Holocaust denier Ernst Zundel, pictured below, is found guilty by the Canadian Human Rights Tribunal of promoting hate on his website, following a complaint that was brought forward in 1996.

2003

Richard Warman, an Ottawa lawyer who would become the most prolific complainant under the controversial law, files a hate speech complaint against far-right-wing activist Marc Lemire, pictured at right, which reached its conclusion yesterday. Mr. Lemire responds by challenging the law itself.

2006

A Muslim organization files a complaint under a comparable law in Alberta against Ezra Levant, then publisher of the Western Standard, for publishing the Danish Muhammad cartoons in the magazine. Mr. Levant responds by launching an advocacy campaign against human rights commissions.

2008

Three hate speech complaints filed against Maclean’s for running excerpts of conservative columnist Mark Steyn’s book, America Alone, which described a rising demographic tide of Muslims in Europe that threatens to undermine liberal democracy, were dismissed by the federal human rights tribunal and those in Ontario and British Columbia.

2008

Liberal MP Keith Martin put forth a motion to scrap section 13(1), expressing concerns later that “someone could be using the power of the state for their own private initiative.”

NOVEMBER, 2008

Law professor Richard Moon, who was commissioned by the Canadian Human Rights Commission to review Section 13, urges the government to repeal the provision so that online hate speech is only a criminal matter.

JUNE, 2009

Jennifer Lynch, chief commissioner of the Canadian Human Rights Commission, presents a report to Parliament that recommends, among other things, that it scrap the penalty provisions.

YESTERDAY

Six years later, the Canadian Human Rights Tribunal dismisses all but one complaint against Mr. Lemire and calls Section 13 unconstitutional.