Free Dominion Is BACK!!! Sort of...

They've gone read-only, for the time being.  Meanwhile, it worth nothing the occasion that brought them out.

 A federal appeals court has put the final nail in the coffin of Mark Lemire's constitutional appeal  of section 13 of the Canadian Human Rights Act (the hate speech provision). You can read more about it here; I've written extensively on the matter here; and the court doc is here.  I've only glanced at the latter, but its obvious that Marc Lemire has been defeated utterly.  Even the act's penalty provision (section 54.1), severed in a previous ruling, has been judged constitutional.

Why worry about legislation that has already been repealed?  Well, a Trudeau-led government that wanted to re-establish section 13 and 54.1  could do so knowing that they have passed constitutional muster. And remember, the Tories snuck their changes through the system as a private member's bill in the dead of night. Divided and leaderless as they might well be after 2015, they would not want to revisit these measures, especially since Mark Steyn, their strongest advocate on the file, might be playing piano for tips and cigarettes at some  skeezy  U.S. strip club by that time.

LEAF Weighs In

LEAF (the Women's Legal Education and Action Fund) is a Canadian legal organization that performs legal research and intervenes in appellate and Supreme Court of Canada cases on women's issues They've offered their submission on the review of the CHRA's section 13 (hate speech laws), by the Parliamentary standing committee on justice and human rights, here. There's some good historical and legal background in the document, which otherwise takes positions that are not terribly surprising. For example, LEAF follows the legal consensus re the Hadjis decision--section 13 alone is safe; s54.1 in conjunction with 13 may be a problem.

They do make an additional argument that you don't see much, which is that Canada needs hate speech laws to live up to its international obligations:

Canada is a signatory to several relevant international conventions that require state parties to prohibit hate speech. The International Covenant on Civil and Political Rights (ICCPR), ratified by Canada in 1976, provides in Article 20(2) that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”33 Similarly, the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by Canada in 1981, provides in Article 4 that “States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination.”34 In Keegstra, Chief Justice Dickson recognized these documents as reflective of “the international commitment to eradicate hate propaganda.”35 International law recognizes that measures against hate speech may take different forms.

So there you have it. Their website is here.

Canadian Human Rights Commision: Section 13 Still Constitutional, Will Still Pursue Hate Messaging Cases

An email from CHRC attorney Daniel Poulin, expanding on this earlier email:

Dear Tribunal and Parties,

We write further to the correspondence that has been exchanged by the parties in regards to the impact of the Warman v Lemire decision recently rendered by the Tribunal.

It is the position of the Commission submits that the Tribunal should proceed on hearing the matter pending before it in the present case. Consequently, the matter should neither be adjourned sine die or simply dismissed.

In Warman v. Lemire, the Tribunal found that the penalty provision in s. 54(1)(c) was not a reasonable limit on freedom of expression under the Charter. In the instant case, the Commission will no longer be seeking a penalty under 54(1)(c) of the Act as was originally included in its Statement of Particulars. The Commission therefore respectfully submits that the Tribunal ought to proceed with a hearing of the Complaint to determine if section 13 has been infringed, and if so, to exercise its discretion under s. 54(1)(a).

Yours truly, Daniel Poulin

Legal Counsel

Canadian Human Rights Commission

..which tells us what the CHRC wants to do in Abrams V. Topham, and may do in future S 13 cases, at least until Warman V. Lemire issues are hashed out: simply drop all requests for penalties under section 54 and continue to ask for a determination as to whether S13 has been infringed.

S.13 being the hate messages provision in the CHRA.

So: the CHRC will still (for the time being) process complaints re hate messaging. It will treat section 13 as constitutionally okay, and drop appeals to section 54. Which is what most people, including me, expected. The core of the law is 13; 54 is a frill.

Rob Anders Throws Boob Bait To Bubbas

...sets out to inflame anti-Muslim sentiment in Calgary:

"It is now illegal to hold opinions that offend radical Muslim activists," and "under section 13 of the so-called 'Human Rights' code, Canadians have been prosecuted for holding personal beliefs which offend radical Muslim Imams and liberal activists."

Meanwhile law Times says appeal the Hadjis Decision. They also conclude that it is the s.54 penalty provisions, not s.13 itself, that may prove unconstitutional:

Hadjis’ conclusions about the constitutionality of s. 13(1) centres on the punitive aspects of the law. Noting the Supreme Court of Canada already dealt with the issue in 1990, he argued that what has changed since then is the imposition of a fine and the expansion of the hate-speech provisions to the Internet during revisions to the Human Rights Act in 2001.

It is that aspect that Hadjis determined to be problematic given the earlier Supreme Court decision’s focus on a conciliatory, rather than penal, approach in dealing with restrictions on free speech under the act.

...and Speechys, who once touted the "real" court system in contrast to the "kangaroo courts" of the HRTs, now want to short circuit the process. They're demanding that Minister of Justice Rob Nicholson squelch any attempt at said appeal.

Lemire Case: The Upshot

Section 13 will not go away, and soon will revert to the form found constitutional in the Taylor case.

...which means minus the section 54 of the Canadian Human Rights Act (should this be found to be unconsitutional on appeal).

Even while we're waiting for an appeal of the Hadjis decision, I suspect any new s13 cases will go forward without an attempt at extracting S54 penalties from the respondent, and with greater attempts at "mediation" from the staff of the various HRCs. After all, the point is or should be that the offending material is removed from circulation. And, even without the S54 penalties, once a cease and desist order has been issued by a tribunal, ignoring that order can lead to a finding of "contempt" and, in some cases, jail time.

The s54 penalties are, from the POV of the law's purpose--ie. expunging hateful material--something of a frill. The law would seem to function without them.

Update: Pearl Eliadis agrees.

Lemire Ruling: Section 13 Constitutional

The CHRT decision Warman vs. Lemire came down this morning. Don't have much time to write about it today, but a quick response/fake lawyer opinion:

1) S.13(1) itself is safe, ie. constitutional as per the Taylor decision.

2) The various penalty provisions outlined in S.54(1), which I believe were added to the act later on (1998?), taken in conjunction with 13(1), infringed Lemire's rights under 2(b) of the Charter. Commissioner Hadjis felt that the fact that the CHRC pursued Lemire after he had "amended" his behavior and pulled down the offending material was not in accordance with the "conciliatory" nature of the Canadian Human Rights Act. Short term result: Lemire was guilty of breaching S.13 but no remedial order will be issued against him.

3) Don't know how this will affect Abrams vs. Topham and The Radical Press or future S.13 cases. If I were to guess, I would say that in future the CHRC might have to drop cases where the hate messages which inspired the complaint have been removed by their author/publisher. It won't have any effect on the various Warman vs. whoever lawsuits going forward.

Will add more to this when I am able.