The Canadian Human Rights Tribunal has ruled that Section 13, Canada's much maligned human rights hate speech law, is an unconstitutional violation of the Charter right to free expression because of its penalty provisions.I can't believe it. Who could have thought that a blow to the nearly unrestricted censorship powers of the "human rights" commissions would come from one of their own?
The decision released this morning by Tribunal chair Athanasios Hadjis appears to strip the Canadian Human Rights Commission of its controversial legal mandate to pursue hate on the Internet, which it has strenuously defended against complaints of censorship.
It also marks the first major failure of Section 13(1) of the Canadian Human Rights Act, an anti-hate law that was conceived in the 1960s to target racist telephone hotlines, then expanded in 2001 to the include the entire Internet, and for the last decade used almost exclusively by one complainant, activist Ottawa lawyer Richard Warman.
He cited Mr. Warman's request for a $7500 penalty against Mr. Lemire. Mr. Warman has won over a dozen other Section 13(1) cases, many leading to similar fines as well as legal restrictions on Internet activity.
This criticism about a penal law masquerading as a remedial one echoes that of Richard Moon, a law professor hired by the CHRC last year to provide an expert analysis of their online hate speech mandate. In essence, his advice was that it could not be done fairly, and so should not be done at all.
But here's the catch - once again (for yet another time,) a precedent-setting decision that concerns our rights and freedoms, was made by an unelected adjudicator. What happens? Who is the real governing body here - the Parliament or a quasi-judiciary tribunal? Today they chose to give us our freedom of speech back. Tomorrow they may reconsider and take it away. Our laws should be made by elected representatives, not by unelected unaccountable bureaucrats.
Mr. Hadjis' decision to reject the law as unconstitutional, in light of its penalty provisions, leaves a central area Canada's human rights in limbo, and kicks a political hot potato over to the government and the Canadian Human Rights Commission, which can appeal the ruling to Federal Court.It's time for the government to act. Section 13(1) must be removed from the Act so that it couldn't be reinstated in the future. I hope Harper remembers that his own party voted near unanimously in support of such a legislation. Now, when the subsection has been struck down by a "human rights" adjudicator himself, the opposition won't have that many arguments left.
So this is Stephen Harper's last chance. He failed to reform the Senate. He was unable or unwilling to rein in runaway spending; couldn't prevent the nation from going back into deficit. His time as PM is running out, election or no election. (Even if he wins majority, he's likely to resign in a couple of years.) But he could still be the Prime Minister to enshrine our freedom of speech in law.