Patrick B Craine, February 8, 2010 (LifeSiteNews.com) – The Canadian Human Rights Commission (CHRC) is appealing the September decision of the Canadian Human Rights Tribunal that determined the hate messages provision (section 13) of the Canadian Human Rights Act is unconstitutional.

In a factum filed with the Federal Court last month, the CHRC argues that then-Tribunal chairman Athanasios D. Hadjis exceeded his authority and erred in law when he ruled on September 2nd that section 13, as it stands now in conjunction with the 1998 penal provisions, violates the Charter-guaranteed freedom of expression.

Hadjis’ decision came in the case of Lemire v. Warman.  Marc Lemire, who runs FreedomSite.org, faced a complaint from serial complainant and former CHRC employee Richard Warman in November 2003.  Warman alleged that certain postings to Lemire’s website were likely to incite hatred or contempt against homosexuals and blacks, thus violating section 13.

When the Supreme Court upheld the section in 1990, Hadjis wrote, their decision was based “on the belief that the process itself was not only structured, but actually functioned in as conciliatory a manner as possible.”  The Supreme Court’s decision, he maintained, “hinged on the absence of any penal provision akin to the one now found at s. 54(1)(c),” which is the clause that allows the Tribunal to impose fines of up to $10,000.

Margot Blight, writing the factum on behalf of the CHRC, argues that, whether the CHRC’s actions are conciliatory or not, those actions cannot themselves make the statute unconstitutional.  “Any question as to whether the Commission’s process is sufficiently conciliatory to meet the requirements of the Charter is outside the Tribunal’s jurisdiction,” she wrote.

According to Blight, the penalty clauses are not intrinsic to section 13, and thus “the appropriate remedy would have been to sever and refuse to apply [them],” rather than judging section 13 unconstitutional.

Section 13 has garnered growing criticism as an infringement on freedom of speech, particularly following several high profile cases, including those brought against publisher Ezra Levant and columnist Mark Steyn.

Steyn hailed Hadjis’ ruling as a “landmark decision.”  “This is the beginning of the end for Section 13 and its provincial equivalents, and a major defeat for Canada’s thought police,” he wrote on the day of the ruling. “It’s not just a personal triumph for Marc Lemire, but a critical victory in the campaign by Ezra Levant, Maclean’s, yours truly and others to rid the Canadian state of this hideous affront to justice.”

Lemire told LifeSiteNews that he is pleased the case will now head to Federal Court because that court is capable of overturning section 13.  As the Tribunal does not have that ability, in Lemire’s case, Hadjis simply chose not to apply the statute.

“If the Federal Court agrees with the [Tribunal] that section 13 is an infringement on freedom of speech, and is unconstitutional, that will stop the [CHRC] from being able to enforce section 13 and harassing other internet posters and news magazines,” said Lemire.

Lemire’s lawyers will be filing a factum with the court next week, he said, and a hearing is expected by the fall.  He said that they will be countering the CHRC’s claim that Hadjis overstepped his authority, as well as offering further arguments in favour of overturning section 13.

“Restricting this type of speech is wrong and shouldn’t be taking place in Canada,” he said.

See related LifeSiteNews.com coverage:

Section 13 Hate Message Clause Unconstitutional Rules Canadian Human Rights Tribunal
http://www.lifesitenews.com/ldn/2009/sep/09090209.html