Wednesday, September 02, 2009

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.


muscocamoca said...

My initial reading tells me that the CHRT got it way wrong. It does not have the authority to judge s13 unconstitutional since the SCC found it to be such in Taylor. It simply should have read out the section which it did not do. This will inevitably be appealed and it should lead to some clarification.

Jerome Bastien said...

actually what happened is that the HRT admitted it was bound by Taylor, but the Act, including s. 13 and other relevant sections were amended between Taylor and the Lemire case.

According to the tribunal, Lemire succeeded in showing that these changes to the Act were relevant to some aspects of the Taylor decision, and in particular the punitive nature of s. 54 was found to be an issue.

As stated by the tribunal itself, it cannot invalidate s. 13 but it can simply refuse to apply it. Interestingly, other tribunal members are not bound by this decision, so they may continue to apply s. 13, which would cause a whole lot of nonsense.

muscocamoca is likely right that it will be appealed.

Yariv said...

Just finished reading this as well. Having practiced some constitutional law muscocamoca has something going here. The adjudicator in this instance seems to have concluded that it was the penalties which may invalidate s13 today. He thus should have read out the penalties, still applied section 13 end of story.

It will take a Court of law , either the Federal Court or the Supreme Court to make any decisions on the constitutionality of s13,

One more thing the adjudicator suggested he need not take notice of previous decisions by other CHRT members. He felt they may be instructive or persuasive but he need not count on them. In this light the adjudicator in Abrams need not consider this wrongly applied decision either.

KC said...

An appeal in this instance would be a good idea. Nothing worse for the law than inconsistency, ambiguity and uncertainty.

Anonymous said...

Warman just bombed the bridges in front of his $Gravy $Train.

No more free money for Warman. This decision breaks his lip lock on the public teat.

Couldn't happen to a nicer little Progressive. He now has the time to watch the implosion of the CHRC as they just had their legal basis removed.

Harry Abrams said...

My take is that section 13 is completely intact, even re-enforced by the decision.

At the discretion and suggestion of the adjudicator the punitive section 54 is not invoked, not least because the respondent already took remedial action by removing it from the internet. This completely leaves open the concept of potential penalties in contempt of a tribunal order, and doesn't touch CHRA section 14.1 which can impose a fine for retaliation.

Two of the biggest complainant problems seem to be that 1) He didn't appear to attempt notice of the respondent before serving the action and 2) because the Tribunal decided not to hear the complaint against Lemire and Harrison jointly, as was originally filed in 2003. That's an important piece, because the Harrison matter was slam-dunked as offending Section 13, where as the complaint material concerning Lemire himself was less so. Also it looks like the complaint was weakened when stuff was informally added AFTER the action was filed. having said all this, it's by no means a vindication of Lemire. He was found to have gone over the line conerning Gays and Blacks.

I think it would take an act of parliament to rescind section 54.1 and maybe they will even do that in light of this decision. But I think section 13 is safe. And it should be.

Terrence C. Watson said...

To BCL and all the intelligent people who left comments here: thank you. The information you provided allowed me to craft a sensible response to the decision that will hopefully not reflect too badly on those of us who favor less restraint on speech.

Warman's going to win his appeal, isn't he? :)

My response is here.

Thanks again!

Gerrard787 said...

My take is that section 13 is completely intact, even re-enforced by the decision. - Harry


Ti-Guy said...

My response is here.

I will not click on it. I am boycotting the cretin fest called The Western Standard until that credentialed psychotic Craig Yirush is no longer featured there.

Terrence C. Watson said...


Aw, dude, I don't think he likes you much either :-)

This is the slightly annoying sprite, signing off.

Ti-Guy said...

Aw, dude, I don't think he likes you much either.

He doesn't like anyone who shows him up for the intellectual fraud he is.