Western Standard

The Shotgun Blog

« Dispatches from B.C. - Is There A Good Restaurant In Revelstoke? | Main | A State of War »

Wednesday, September 02, 2009

Censorship tribunal rules censorship is unconstitutional (or does it?)

Strange goings on in the Canadian freedom of speech movement today. A tentative victory for us?

From the National Post:

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.

Even the censors are now admitting that Section 13 of the Canadian Human Rights Act is unconstitutional? That means we win, right?

Not so fast.

The context is Warman v. Lemire. I haven't had a chance to dig into the ruling, and still less of a chance to reflect on it. So this assessment will be cursory, and possibly completely wrong (I'm sure our commenters will correct me if this turns out to be the case.)

Simply put, the NP's headline is wrong, or at least misleading. Athanasios Hadjis, the tribunal chair, did not rule that Section 13(1) is unconstitutional. What he ruled is that Section 13(1), when combined with the penalty provisions set out in another portion of the Act (Section 54(1), I think) amounts to an unconstitutional violation of Charter rights (e.g. freedom of expression.)

The penalty provisions in 54(1) were added to the CHRA after the Taylor decision, which upheld the constitutionality of 13(1) itself.

So, no, Hadjis did not overrule the Supreme Court. Nor could he.

The constitutionality of Section 13(1) remains intact. It's just that a major sanction in the Tribunal's toolkit has now been removed, or at least blunted. The CHRC/T can still silence you; it just can't bankrupt you in the process.

And Warman et al. is likely to appeal the ruling -- and he'll probably succeed (hint: Hadjis should have "read out" the constitutionally questionable portion of the Act.)

Big City Lib's take is here. The Canadian Jewish Congress expressed its discontent with the ruling here.

Jay Currie's erudite take can be found here and here.

Posted by Terrence Watson on September 2, 2009 in Freedom of expression | Permalink


Why thank you Terry.

My own sense is that Hadjis went a little further than say 13 plus 54 is likely contrary to the Charter. He pretty much distinguished Taylor on the basis that the manner in which the CHRC and it's favorite s. 13 complainant have dealt with complaints is significantly different from the manner Dickson, CJC contemplated in Taylor. And on that basis I would say that practically speaking s. 13 is over.

But I agree with the CJC that this should be appealed as s. 13 is not dead enough. It needs the McLaughlin Court to drive a stake through its unconstitutional heart. Or it needs theCPC to grow a pair and repeal it.

Posted by: Jay Currie | 2009-09-02 4:32:24 PM

Well, sanctions for contempt of a tribunal order are not touched by this. These seem to be what you need to enforce S13. As Jay has pointed out somewhere, the CHRC was already ready to stop invoking section 54.

Posted by: bigcitylib | 2009-09-02 5:07:35 PM


Yes, I was thinking that: if you receive a cease-and-desist order and ignore it, you still take a hit for contempt. I didn't check, but how does the penalty for contempt compare to the penalties described in Sec. 54?

At most, this ruling dents one of the Tribunal's powers. And it will be appealed.

The NP's headline really was misleading.


I wrote my whole post before I looked at yours. Mistake on my part. My contribution would have been better if I'd started by reading yours.

Posted by: Terrence Watson | 2009-09-02 5:24:39 PM


I will have to hunt down a ref tomorrow but I believe you can get jail time.

Posted by: bigcitylib | 2009-09-02 6:19:42 PM

The irony of this is just delicious. One branch of the human rights system has essentially accused the other half of overreaching itself. Poor Jennifer Lynch. After years of clueless and ham-fisted attempts to subdue her noisome arrogance long enough to make a public statement, desperate pleading for help from the Canadian Bar Association, and lurid tales of vast conspiracies, intimidation campaigns, and ignorance run amok, she is really starting to show signs of serious paranoid delusion.

With characters like Jennifer Lynch, Dean “freedom of speech is an American idea” Steacy, and mega-milker Richard Warman constantly in the news—for all the wrong reasons—one wonders just how much longer this increasingly discredited travesty of the justice process can cling to life. Stephen Harper must be smiling inside. No doubt he realizes that axing the HRC would please his voting base, but as head of a minority parliament, he probably didn’t wish to risk the political fallout of “gutting our human rights industry and snatching away the only voice of the marginalized.” But if the Supreme Court orders him to, who then can complain?

I wonder if Stevie didn’t see this coming all along. He’s certainly cunning enough.

Posted by: Shane Matthews | 2009-09-02 6:23:50 PM

Sorry, that link should be http://www.nationalpost.com/story.html?id=1897555

Posted by: Shane Matthews | 2009-09-02 6:27:52 PM

Shane, if it goes to Supreme Court Harper will be an old, old man by the time it is decided. Certainly retired from politics.

Posted by: bigcitylib | 2009-09-02 6:41:05 PM

I doubt the Supreme Court is going to abolish the CHRC/T system, or even Section 13. Why would they?

There's precedent supporting both. Section 1 of the Charter provides a constitutional fig leaf.

What would the Court have to gain?

Posted by: Terrence Watson | 2009-09-02 8:14:20 PM

We all know our KANGAROO court has a choke hold on free speach.. As its mandate expanded it became more of a problem.. A special interest tool to sooth hurt feelings.. We have a criminal court and laws in place to deal with the problem.. but that opperates on a different level with appeals.. no more star chamber.

Its a good day for debate in Canada.. let the fools be fools..

Posted by: John | 2009-09-02 9:24:04 PM

What makes you think that, BigCityLib? The Supreme Court has found time to weigh in on far less consequential matters lately. But Jay's most likely right—even if it does take ages for the law to be formally killed, from this point forward it'll be little more than a dead letter. For the life of me I can't see how the HRC can continue this conduct even when its own partner in the enterprise, the HRT, has told them no.

Look for Jennifer Lynch to leave soon, too, for post-traumatic stress if nothing else. I can't recall the last time I saw an important public figure come so completely unglued. Every time she opens her mouth, she discredits herself and the HRC further. It wouldn't be unfair to say she's just trying to protect her job at this point.

Posted by: Shane Matthews | 2009-09-02 9:33:27 PM

Shane, watch for newer cases to go forward where the HRC doesn't ask for the kinds of penalties specified in s54, at least until its status is clarified in court. Simple enough.

Posted by: bigcitylib | 2009-09-03 4:26:44 AM

Hate to be pedantic, but I'd have more confidence in Jay's erudition if he actually knew how to spell the Chief Justice's name - it's McLachlin.
In my view, your summary of the decision is more accurate: it identifies the penalty provisions in s.54 as the real problem, not s. 13 itself. I'm not sure whether "reading out" the penalty provision was appropriate in the circumstances, but Hadjis should at least have turned his mind the possibility.
As for Lynch, I think it unlikely she'll be reappointed. It would, however, be unfair to say that she's just trying to protect her job, since her job is quite secure. Under the Act, it takes a joint address of the House and Senate to remove her or the other commissioners. The provision is designed to protect the Commission from political interference.

Posted by: truewest | 2009-09-03 6:12:46 AM

Her job only lasts as long as the HRC does, TrueWest. Given the calls on all sides for its abolition, or at least a substantial restructuring, that's no longer guaranteed, especially with new Conservative senators and the possibility, however slim, that voters will punish the Liberals' sending them to the polls four times in five years with a Tory majority—if for no other reason than they won't have to vote again for five years.

Posted by: Shane Matthews | 2009-09-03 7:55:51 AM

Good ruling. The real danger to society is not individual hate declarations (although this is often put forward by contemporary media), but rather bias in media itself. A thousand hate-filled blogs or books will do less damage in a year than one biased cover story in a national media. As an example, many Americans still believe the Trade Tower bombers arrived via Canada despite CNN's "correction" of the facts, and recall how the media destroyed Richard Jewell's life by falsely presenting him as the bomber at the Atlanta Olympic Games. Canada does not need censorship but rather its opposite: transparency in government activities and media publication.

Posted by: miss yoka | 2009-09-03 8:59:19 AM

Gee, Mr. Watson, I thought I had a cynical view of the Supreme Court, but you take the cake. Even I don't think that the Supreme Court reaches decisions - certainly 99% of its decisions - on the basis of "what would the Court stand to gain?" They'd have every reason to strike down s. 13; they'd need a good reason not to. Which is not to say that they'd never find one, but it might be worth seeing if they do.

Posted by: ebt | 2009-09-03 3:01:11 PM


I know, I know, I'm probably too cynical. It's not that I think courts act on the basis of gain all the time. Maybe it's only 1% of the time -- but what characterizes that 1%? Do cases in that category involve controversial issues, for which precedent has already been established (e.g. in Taylor)?

Overturning a precedent, or even appearing to overturn it, is a kind of cost to the Court, at least in my opinion. If I were on the Court, I'd wait for the legislature to act, rather than overturning both precedent and the will of Parliament. Especially when Warren Kinsella and other censorship proponents will portray the move as being beneficial solely to neo-Nazis, further stigmatizing the Court.

Hence my question: against all these costs, and with the possibility that Parliament will address the issue (and alter/abolish Section 13) as an easy out, why would or should the Court swoop in to definitively address the issue?

Someday, it may have to, but I don't expect it to rush into the fray.

But, again, I'm too cynical :-)

Posted by: Terrence Watson | 2009-09-03 4:20:07 PM

-The Supreme Court has found time to weigh in on far less consequential matters lately. But Jay's most likely right—even if it does take ages for the law to be formally killed, from this point forward it'll be little more than a dead letter. For the life of me I can't see how the HRC can continue this conduct even when its own partner in the enterprise, the HRT, has told them no.
~Shane Matthews

Now if only we could get people like Shane, and cops, to think that about the marijuana possession laws that were declared unconstitutional by the Ontario Supreme Court back in 2000.

My take on Section 13(1) is that as long as it's on the books people are going to get busted whenever some fascist decides to enforce it, and then, after a costly court battle, we'll see if the defendant feels like he hasn't been through a shredder whether he "wins" it or not.

Posted by: Speller | 2009-09-03 5:35:19 PM

Now if only we could get people like Shane, and cops, to think that about the marijuana possession laws that were declared unconstitutional by the Ontario Supreme Court back in 2000.

The reasoning behind that ruling was completely fatuous. It centred on the idea that marijuana is medicine. But is had not been approved by Health Canada and therefore should be illegal to buy or sell as medicine, even if it were not a controlled substance, which it is. No Big Pharma drug with so many side effects would be allowed in the marketplace. So why pot?

Posted by: Shane Matthews | 2009-09-03 6:59:16 PM

I am not surprised to see the taxpayer subsidized special interest groups advising THAT the CHRC and the AG will be Appealing this affront to their special status. The audacity!

If one is a farmer and one loses a prize Milk Cow - that can not be a welcome news to the other barnyard animals - 1984 or otherwise!

Posted by: The LS from SK | 2009-09-04 11:15:33 AM

So if one takes 1984 and Animal Farm" and looks at the CHRC code of conduct - this emerges. Add names and CHRC decisions and investigators and then Ezra has another book.

One can only refer to London Free Press article in 2005, Ottawa Citizen articles in 2007/2008 and less recently surprisingly:

"The Seven Commandments are a list of rules or laws that were supposed to keep order and ensure elementary Animalism within Animal Farm (BUNKER of the CHRC).

The Seven Commandments were designed to unite the animals together in a common cause against the humans and to prevent animals from following the humans' evil habits of FREE SPEECH.

Since not all of the animals can remember them (SCRIPT in front of a COURT), they were/are boiled down into one basic statement: "Four legs good, two legs bad!" (with wings (or WIFI) counting as legs for this purpose, Snowball (Clearly a RACIST) arguing that wings (OF TRUTH) count as legs as they are objects of propulsion rather than manipulation), which the sheep constantly repeat, distracting the crowd from the lies of the pigs.

The commandments are:


Whatever goes upon two legs WITHOUT CHRC PERMISSION) is an enemy
Whatever goes upon four legs, or has wings, is a friend.
No animal shall wear clothes.
No animal shall sleep in a bed.
No animal shall drink alcohol UNLESS IT IS POURED INTO A REUSABLE GLASSES).
No animal shall kill any other animal (EXCEPT BY FINANCIAL PENALTY).

Later on, Napoleon and his pigs were corrupted by the absolute power (Freedom is only an amerikan concept)they held over the BUNKER/farm.

To maintain their popularity with the other animals, Squealer secretly painted additions to some commandments to make it benefit the pigs (LOOKED AT NAZI scrawls in Hockey rinks) while keeping them free of accusation of breaking the laws.(POSTED AT NEO-NAZI sites)

The laws are eventually completely removed (by Lustig and Hadjis), and replaced with "All animals are equal, but some animals are more equal than others",(TRUTH IS NO DEFENCE) and "Four legs good, two legs better!" as the pigs become more human."

From Wiki with creative additions.

Posted by: The LS from SK | 2009-09-04 11:41:43 AM

It's pretty clear that Hadjis is right, at least in that the rules the CHRC is playing by are not consistent with the Taylor decision and not protected by it. The Supreme Court would have to go out of its way to back the CHRC on this. Why would they do so? I myself don't happen to think that the Supreme Court can be intimidated by Warren Kinsella. (Though if you must share his delusions, this must be one of the more harmless ones.) And I don't see why they'd reward a rogue agency for treating them with contempt.

I'm quite certain that the court as currently composed would be willing to go to some lengths to embarass and undercut the Harper government, but I think there are limits to how far they'd go. An issue like this, which is both legally and morally cut and dried and divided along other than strictly partisan lines, doesn't suit that purpose. There simply isn't any reason that presents itself as to why the Supreme Court would back up the CHRC. Indeed, in the current state of play, to do so validates Harper's refusal to act. I can believe that the Court would break the law to harm Harper, but never to vindicate him.

Posted by: ebt | 2009-09-04 12:26:29 PM

The comments to this entry are closed.