Thursday, September 03, 2009

The Lemire decision

Here is my take on Athanasios Hadjis' decision in the matter of Warman v. Lemire, offered as a counter to the excited crowing from predictable quarters.

It was a precisely-argued ruling, and I found myself agreeing with a good deal of the reasoning that
Hadjis put forward to dismiss various parts of the complaint. But it seems to me to be fundamentally flawed nonetheless.

The wording of Section 13(1) of the Canadian Human Rights Act is as follows:

It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination. [emphasis added]

I am certain that Richard Warman would agree that not all of the components of his complaint were of equal strength and merit. But it was surprising that Hadjis did not feel that an inflammatory news release put out by the neo-Nazi Heritage Front (which Lemire headed up at the time), and which was reproduced at Lemire's website, could expose new immigrants to "hatred and contempt."

[161] The release contains what is seemingly a complete copy of an article that appeared in the Toronto Star on February 21, 2001, regarding leaflets that the Heritage Front had been distributing outside a Hamilton hospital where a woman of Congolese origin was being treated for an illness that was possibly linked to the Ebola virus. The leaflets apparently called for a "community health alert" and warned that "immigration can kill you". The Star article went on to discuss demands by anti-racism activists that the city take measures to protect visible minorities and combat racism.
[162] The Heritage Front criticizes the Star article in the press release, referring to efforts by "rights maniacs" to have the municipality "waste dollars". The press release goes on to complain that none of the leaflet's text was quoted by the Star article except the opening line, and that "all the good parts...where we detail exactly how immigration *CAN* kill you is gone, and just referred to as `white supremacist'". The press release then provides a web link where the leaflet can be viewed and urges readers to print it and distribute it.
[163] Mr. Warman wrote in his final submissions that this material, in suggesting that "non-white immigration can kill you", communicates the idea that nothing but banishment, segregation or eradication of this group of people (non-white immigrants) will save others (presumably white Canadians) from the harm being done by this group, which Kouba identified as one of the hallmarks of hate messages emerging from s. 13 jurisprudence.
[164] While the phrase "Immigration can kill you" could be interpreted as suggesting that Canada should deny entry to certain groups, the expression would not, in my view, give rise to "unusually strong and deep-felt emotions of detestation, calumny and vilification", to which the Supreme Court referred in Taylor. The matter may foster xenophobia but I am not persuaded that it is likely to expose persons to hatred or contempt within the meaning of s. 13.

I find this to be specious in the extreme. If circulating material that targets immigrants as deadly disease-carriers does not expose them to "hatred or contempt," it is hard to imagine what would.

And it is appalling that Holocaust denial, a consciously false set of claims deliberately constructed and deployed to express hatred for Jews, to wound them, and to present them to the wider public as liars and enemies of freedom, has been found by Hadjis not to exceed the bar set by Section 13(1).

Hadjis has, in fact--setting aside the constitutional question--now raised that bar so high that it is no longer visible to the naked eye.

On the constitutionality of Section 13(1), the adjudicator observed that, due to changes in the CHRA
since the 1990 Supreme Court decision in Taylor, the Tribunal can now impose significant financial penalties for violations of this section. In his view, this makes the section overly onerous and punitive:

[293] As I have found above, this context has changed with the introduction of the penalty in s. 54(1)(c). Section 13(1) now plays a significant and more than "minimal" role in the imposition of both financial and moral sanctions.

As such, in his opinion, the provision is no longer saved by Section 1 of the Charter, having not met in full the requirements of the so-called Oakes test (set out in paragraphs 223-224 of the ruling, with his detailed analysis following).

With respect to this conclusion, I am in agreement with Bernie Farber and the Canadian Jewish Congress: Hadjis could have "read out" Section 54(1) as unconstitutional, which it almost certainly is (the CHRC itself has recommended removing that section from the CHRA). Based on Section 13(1) alone, whose constitutionality was upheld in Taylor, he could have proceeded, after sustaining the complaint in part, to offer other remediation--like a cease and desist order. He refused to do so.

It does not further the Charter vision of a democratic and pluralistic society to gut the provisions of Section 13(1) as Hadjis has attempted to do. The comments of the Supreme Court majority in Taylor are worth repeating, continue to be relevant, and no elaboration on my part is necessary:

Section 13(1) of the Act, which is sufficiently precise to constitute a limit prescribed by law under s. 1 of the Charter, constitutes a reasonable limit upon freedom of expression. First, Parliament's objective of promoting equal opportunity unhindered by discriminatory practices, and thus of preventing the harm caused by hate propaganda, is of sufficient importance to warrant overriding a constitutional freedom. Hate propaganda presents a serious threat to society. It undermines the dignity and self‑worth of target group members and, more generally, contributes to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open‑mindedness that must flourish in a multicultural society which is committed to the idea of equality. The international commitment to eradicate hate propaganda and Canada's commitment to the values of equality and multiculturalism enshrined in ss. 15 and 27 of the Charter magnify the weightiness of Parliament's objective in enacting s. 13(1).

If only for legal clarification by what the Speech Warriors™ are pleased to call the "real courts," Hadjis' ruling must be appealed.

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