Warman v. Lemire: The Constitutionality of Hate Speech Legislation
On September 2 of this year, the Canadian Human Rights Tribunal issued its decision in Warman v. Lemire, 2009 CHRT 26. Making national news in doing so, Tribunal member Athanasios Hadjis declared as unconstitutional section 13(1) of the Canadian Human Rights Act (the Act) for unjustifiably infringing on the freedom of expression guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms. This decision would effectively strip the Canadian Human Rights Commission of its controversial legal mandate to stamp out internet hate speech under the impugned section. For its shocking result and for the questions it engages as to the constitutionality of hate speech as an exception to the freedom of expression, this Canadian Human Rights Tribunal decision is covered here on TheCourt.ca.
The Act, the Commission, the Tribunal
The Canadian Human Rights Act is a federal anti-discrimination statute. Directed against discriminatory practices along its enumerated grounds (s. 3) in matters such as employment (ss. 7-11) and the provision of goods, services, and accommodation (ss. 5-6) where they fall under federal authority, the Act also notably seeks to combat internet hate speech. Section 13(1) of the Act states:
“It is a discriminatory practice … 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 … any matter that is likely to expose a person or persons to hatred or contempt … on the basis of a prohibited ground of discrimination.”
s. 13(2) specifies that s. 13(1) applies to matters communicated over the internet. s. 54(1) of the Act specifies the orders the Tribunal may make specifically in response to a substantiated claim of electronic hate speech in violation of s. 13(1).
The Act establishes the Canadian Human Rights Commission, which receives and investigates into complaints of discrimination, and the Canadian Human Rights Tribunal, to which such complaints of discrimination are referred by the Commission for inquiry, substantiation, and remedy. Decisions of the Tribunal may be appealed to the Federal Court of Canada.
Background and Findings of Fact
The facts of the case and rulings as to breach of s. 13(1) deserve but a brief mention before proceeding with an analysis of the Tribunal’s ruling on s. 13(1)’s constitutionality.
Marc Lemire, a prominent figure within Canada’s white nationalist scene, was brought before the Tribunal to respond to claims of internet hate speech contrary to s. 13(1). Mr. Athanasios Hadjis found as follows: (1) contrary to complainant Richard Warman’s assertions, Lemire was not linked to the website JRBooksonline.com and thus did not communicate or cause to be communicated the material found on it; (2) Lemire did communicate the anti-immigrant poem attributed to him on the white nationalist internet forum Stormfront.org, but this poem did not reach of the level of “hatred or contempt” required by section 13; (3) though administrator of the website Freedomsite.org, Lemire was not aware of the allegedly discriminatory material posted on it by others and thus did not cause it to be communicated; (4) of the six allegedly discriminatory postings posted on Freedomsite.org either directly by him or with his knowledge and involvement, and thus communicated or caused to be communicated by him, only one (an AIDS article vilifying gays and blacks) met the standard of “hatred and contempt”. The Tribunal thus found only one violation of s. 13(1) on the part of respondent Marc Lemire.
The Constitutional Question
Prior to the start of the hearing, Lemire filed a motion seeking to have ss. 13, 54(1), and 54(1.1) of the Act declared inoperative on the constitutional grounds that they violated his Charter-guaranteed freedom of expression under s. 2(b), freedom of conscience under s. 2(a), and right to life, liberty, and security of the person under s. 7; arguments were also advanced that the sections violated the Canadian Bill of Rights. Briefly disposing of the latter two Charter grounds and the Bill of Rights arguments, Mr. Hadjis dealt with the s. 2(b) Charter claim at length. The inclusion of this constitutional issue brought about the intervention of the Attorney General of Canada, among others.
The Supreme Court of Canada had previously answered this question in Canada (Human Rights Commission) v. Taylor,  3 S.C.R. 892. Writing for the majority, Chief Justice Dickson (joined by Justices Wilson, L’Heureux-Dubé, and Gonthier) affirmed the constitutionality of s. 13(1) of the Act by recognizing it as an infringement of the freedom of expression guarantee under s. 2(b) that was demonstrably justified under s. 1 of the Charter.
Bound by this Supreme Court holding and not finding it appropriate to question it in order to correct “fundamental errors” perceived and alleged by Lemire to subsist therein, the constitutional avenue of analysis considered to be open to the Tribunal was the following: have circumstances changed since the Supreme Court’s s. 1 analysis in Taylor so as to warrant a revisitation of it?
Mr. Hadjis found that circumstances had significantly changed with a 1998 amendment to the Act. The remedial section 54(1) now features s. 54(1)(c), which allows for “an order to pay a penalty of not more than ten thousand dollars”, while s. 54(1.1) spells out a list of factors to consider in deciding whether to make such an order, which Hadjis described as “typical sentencing considerations.”
Mr. Hadjis found that this change from being a statute “exclusively remedial, preventative and conciliatory in nature” to one “more penal in nature” resulted in s. 13(1) no longer representing a “minimal impairment” (as per the second step of the proportionality test of the s. 1 analysis revealed in R. v. Oakes,  1 S.C.R. 103) of s. 2(b) as contemplated in Taylor. In his own words:
“The Supreme Court held in Taylor that … s. 13(1) only minimally impairs freedom of expression principally because the Act’s purpose is to prevent discrimination (as well as compensating and protecting the victim), rather than punish moral blameworthiness. … s. 13(1) has, since the 1998 amendments, lost the exclusively compensatory and preventative features that characterized it in the eyes of the majority in Taylor. Following the Court’s reasoning, it can therefore no longer be concluded that the provision still minimally impairs the Charter-guaranteed freedom of expression.”
Analysis of the Tribunal’s decision
Notwithstanding my opposition to anti-hate speech legislation, I respectfully take issue with Mr. Hadjis’ reasoning. Having identified the punitive 1998 amendment to s. 54 as the change upon which to base a revisitation of Taylor’s s. 1 analysis, which resulted in the finding that there was no longer a minimal impairment of s. 2(b) as before, it is extremely difficult to understand why Mr. Hadjis did not declare as unconstitutional simply that change. Within his reasons Mr. Hadjis essentially seems to arrive at a conclusion that, post-penal amendments to the Act, s. 13(1) itself has somehow irrevocably altered in nature. This is difficult to see, considering that the amendment was only to the orders available to the Tribunal at s. 54(1); s. 13(1) is textually unchanged and remains in the same, constitutionally-valid form approved prior to the amendment. Mr. Hadjis further points out in his reasons that the actual process by which the Commission pursued its s. 13(1) mandate against Marc Lemire was anything but “conciliatory”. Besides disagreeing with Mr. Hadjis’ rejection of the Attorney General’s argument that “any potential error committed by the administrative authorities to whom s. 13’s application has been entrusted, cannot have any bearing in the analysis of the provision’s constitutionality”, I do not see how this statement buttresses his conclusion regarding s. 13(1) or militates against the common-sense view that ss. 54(1)(c) and 54(1.1) are elements separable from s. 13(1), and that a declaration of these sections’ unconstitutionality would be sufficient and proper, and would return both s. 13(1)’s “nature” and (where the Commission heeds such a ruling by amending it practices) “process” to their prior, affirmatively constitutional, state.
The Tribunal’s ruling lacks precedential value beyond this case. The sections in question were not struck as inoperable; they were just not acted upon. Future sitting Tribunals are not necessarily bound by this decision. In reaching it, Mr. Hadjis pointed this latter fact out in regards to past Tribunal cases that answered the constitutional question in the affirmative, along with the fact that these affirmations were obiter dicta. An appeal to the Federal Court of Appeal may follow.
Thoughts on Taylor
As shocking as this decision has been reported to be, it did not question Taylor itself or s. 13(1) in its original preventative, or rather, “conciliatory” aspect. While I consider this aspect of s. 13(1) just as politically disagreeable and, for our purposes, legally untenable as its putative “punitive” aspect, a statutory Tribunal can presumably only do so much. In brief, then, what follows is not so much an expression of dissatisfaction with the Tribunal’s non-confrontation of Taylor as much as it is a general disagreement with the Taylor holding and a hope that the following points of contention are in some way or another brought to judicial attention and scrutiny.
So, with respect, I take issue with the Court’s decision in Canada (Human Rights Commission) v. Taylor. The majority’s holding that the lack of truth as a defence against a finding of hate speech under s. 13(1) constitutes a minimal impairment of s. 2(b) is, I feel, a truly fundamental error. Though it purports to speak to the values underlying the guarantee of the freedom of expression, the Court seemingly shows an ignorance of it, for what is one of — if not the main — public interest rationales behind the guarantee other than it as an instrument of truth? With, again, the utmost of respect, the Court’s reasoning that it is not necessary that truthful statements be used for such hateful and contemptuous ends is presumptuous beyond belief. Truth by its very nature engenders conflict and “hurts”, and is good, in spite of, or very well for that. Truth is of paramount public interest, and it is only through the unencumbered diffusion of ideas, however distasteful, that truth may arise and triumph over falsehood. Even if the suppression of truth for the purpose of sparing public sentiment were somehow convincingly argued as a reasonable impairment of the freedom of expression, it would still, in my opinion, not be, by any measure at all, a minimal one. Having already reached a finding of non-minimal impairment, as detailed above, Mr. Hadjis expressly refrained from broaching in any manner this subsequent issue of truth as a defence.
My other objection, which I am not entirely sure whether to classify as an “irrational connection” or a “non-minimal impairment” within the meaning of an Oakes s. 1. analysis, is that I do not see how a guarantee of freedom of expression that includes hate speech necessarily detracts from an objective of ensuring tolerance, equality, multiculturalism, and the like. Even with a wide dissemination of hate, laws actually pertaining to discriminatory practices and equal opportunity (such as in employment) are no less the law. Generally speaking, I do not see a logical equivalence between laws and practices (such ss. 5-11 of the Act, and s. 15(1) of the Charter) that are directly conducive to society’s overarching aims of equality, tolerance, and multiculturalism, and laws (such as s. 13(1) of the Act) that bar the public dissemination of ideas and viewpoints that are viciously oppositional to said aims. While laws such as those pertaining to equal opportunity in employment would be expected to be consistent with and reflective of the consensus of Canadian society as represented by the acknowledged mandate of the sitting government and by ss. 15 and 27 of the Charter, it does not make sense that the entirety of Canadian public opinion itself be made so consistent, as it is from Canadian public opinion itself that these notions of tolerance, equality, multiculturalism, diversity, etc. are considered to have sprung. Just as these values were enshrined, they may be defaced: though a dark prospect to many, Canadians are well within their rights, as a part of our democratic process, to turn their backs on tolerance, equality, and diversity and to fundamentally alter the nature of the society in which they live by calling for the repeal of such anti-discrimination laws and, further, for amendments to the Constitution. The freedom of expression is then something of a cornerstone, a precondition; limitations on it, such as those at issue here, seem illogical.
In closing and returning back to Warman v. Lemire, I am unsure of how to respond to the prospect of an appeal. On the one hand, an appeal would test these broader issues as well as an unsound judgment; on the other hand, it would represent the government throwing its lot in with censorship.