Wednesday, September 02, 2009

Canadian Human Rights Tribunal Refuses to Apply the Law

While the Canadian Human Rights Tribunal has no authority to make constitutional rulings, Athanasios D. Hadjis has nevertheless ruled, in Warman v. Lemire, that he will refuse to uphold that part of the law, Section 13 of the Canadian Human Rights Act, that deals with "hate speech" given the Tribunal Member's own personal understanding of the Charter of Rights and of the Supreme Court's Section 13-affirming Taylor decision. Hadjis is washing his hands (not only of the bad law but perhaps of his own previous involvement in the invidious "human rights" game) and kicking the can to the politicians and, possibly, the higher courts. Will freedom of speech in Canada be served by the ultra-cautious PM Stephen Harper (Mackenzie King the II) or by the power-hungry Michael Ignatieff (the wannabe Trudeau the II). Now that Ignatieff is stating a blanket refusal to vote with the minority government in Parliament, Canadians may have to pick their Prime Ministerial poison in a fall election.

Canadian Human Rights Tribunal
[290] In my view, it is clear that Taylor's confidence that the human rights process under the Act merely serves to prevent discrimination and compensate victims hinged on the absence of any penal provision akin to the one now found at s. 54(1)(c), as well as on the belief that the process itself was not only structured, but actually functioned in as conciliatory a manner as possible. The evidence before me demonstrates that the situation is not as the Court contemplated in both respects. Thus, following the reasoning of Justice Dickson, at 933,one can no longer say that the absence of intent in s. 13(1) "raises no problem of minimal impairment" and "does not impinge so deleteriously upon the s. 2(b) freedom of expression so as to make intolerable" the provision's existence in a free and democratic society. On this basis, I find that the Oakes minimum impairment test has not been satisfied, and that s. 13(1) goes beyond what can be defended as a reasonable limit on free expression under s. 1 of the Charter.
V. Conclusion
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 (see Cuddy Chicks Ltd. V. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5), I will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial order against him (see Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54 at paras. 26-7).
"Signed by"
Athanasios D. Hadjis
He "simply refuses"; that has the nice ring of civil disobedience, doesn't it? But will anyone in government try very hard to notice? In any case, I think a tentative "congratulations" to all those who have been fighting Section 13 is in order.

Blazing Cat Fur of course is keeping track of all the relevant links


Chi said...

The right to freedom of speech is a basic human right.

And the slippery slope argument about genocide is unconvincing. This is a liberal democracy - there are basic human rights protecting people from violence & such behaviour is criminalised. What you're suggesting is regulating unpopular points of view.

Those who are afraid of a free exchange of ideas should not live in liberal democracies. They should move to a totalitarian regime where thought control is more acceptable.

truepeers said...


This blog agrees with you. The title I gave this post is to suggest the irony in a kangaroo court throwing out the law that legitimizes it. The "judge's" civil disobedience in doing so is to be commended, though considering he has a previous history of applying the invidious law one wonders if his motivation was simply a moral awakening in his view of the "human rights" racket. In any case, I find it ironic that I am happy with an immoral court for breaking the law, remembering that these courts have earned the name of kangaroo as they have been making up the law as they go along their work of scapegoating evil doers for some time now.