Court finds Internet hate speech law Section 13 to be constitutionally valid, doesn’t violate freedom of expression
Though it is slated for official repeal in June, Canada’s defunct and much maligned hate speech law, Section 13, is not going gently.
The latest twist in the long running legal saga of the human rights law that governs hate on the Internet in Canada is a Federal Court of Appeal ruling, issued Friday, that finds Section 13 is constitutionally valid, and does not violate freedom of expression.
Coming as it does at the tail end of a vicious national debate about hate speech and censorship, the ruling leaves a bizarre impression, like something out of Monty Python.
Like the Norwegian Blue parrot, Section 13 is just resting. Like the Black Knight, its repeal by Parliament is just a flesh wound. Though it has been hoisted on the cross, its supporters may still, like Brian, always look on the bright side of life. Section 13 might be doomed, but it is good law. So sayeth the courts.
Even Section 13’s penalty section, under which hate propagandists can be fined $10,000, was found by the court to be “a reasonable means of imposing financial accountability for the damage caused by the vilification of targeted groups and of deterring the communication of hate speech in order to decrease discrimination against them.”
The penalty section was a key reason the law was once judged unconstitutional, on the grounds that such quasi-criminal punishment invalidates the remedial purpose of the Canadian Human Rights Act. Now, however, both Section 13 and its penalty provisions are on solid legal footing.
The Charter of Rights and Freedoms “does not entitle or require courts to search out an optimal remedy for a complex social problem [like hate speech] — a task for which they are not equipped. This is a matter for the legislature. The role of the courts is to ensure that the statutory remedy selected is within the range of what is reasonable,” reads the ruling.
The upshot is that the blockbuster 2009 ruling of the Canadian Human Rights Tribunal that Section 13 violates free speech was “right politically, but wrong legally,” said Bruce Ryder, an associate professor of law at Osgoode Hall Law School, who acted in the case for the African Canadian Legal Clinic, an intervenor.
Coupled with the Supreme Court’s recent endorsement of similar provincial laws, this latest ruling also sets the stage for a new government to try to bring it back, or something like it, Prof. Ryder said.
“In giving a constitutional seal of approval to Section 13, the Court paved the way for a future Parliament to reinstate the provision, if it so chooses,” he said. “Since the opposition parties opposed its repeal, and the courts have supported it, if we have a new government in 2015, it may well reappear.”
Matthew Sherwood for National Post
The 2009 ruling that first ruled Section 13 unconstitutional came in the case against Marc Lemire, a far-right activist who has long experience running websites, including his Freedomsite.org. That tribunal decision found Mr. Lemire violated Section 13 by posting an article by someone else called AIDS Secrets, which vilified blacks and gays, but the tribunal refused to make any penalty order against him, on the grounds that the penalty section violated free speech.
This latest ruling overturns that decision, and reinstates Section 13’s penalty sections. As a result, Mr. Lemire now faces a decision whether to appeal to the Supreme Court of Canada — which last year issued a major hate speech ruling that it is unlikely to reopen — or go back to the Canadian Human Rights Tribunal to fight a cease and desist order against him, requiring him not to violate Section 13 again. He calls it a “lifetime speech ban,” and in effect it prohibits him from violating a law that does not exist anymore, at least as of June.
The CHRC is not seeking a penalty against him, so its reinstatement is irrelevant to him. But being ordered, on pain of criminal contempt charges, not to violate a law that does not exist is a strange fate.
“The ruling just shows how out of touch the judges really are,” said Mr. Lemire. “There was almost unanimous agreement the penalty provision was unconstitutional, from multiple members of the Tribunal, to the Federal Court judge, to the CHRC itself. Now the Court of Appeals claims that the penalty provision is not a penalty? What a joke the ‘justice’ system has become.”
A key part of the ruling is “the rejection that the Internet is some form of Wild West where hate propaganda constitutes legitimate debate,” according to a blog post by Richard Warman, a lawyer who made nearly every Section 13 complaint in the last decade, and has now officially won them all. Mr. Lemire’s initial victory was his first failure at a tribunal, and it became a key driver in the political case for repeal.
Outside the courts, the political handling of the Section 13 debate has been a case study in opportunism and avoidance, seen as an unwinnable fight between censors and hatemongers, egged on by an excitable hardcore of activist bloggers.
Former Justice Minister Rob Nicholson, for example, once dispatched a lawyer to argue in support of Section 13, but then flip-flopped and endorsed a backbencher’s private member’s bill to repeal it.
According to that bill, brought by Brian Storseth, Section 13 will be officially repealed in June. It is already defunct, with existing cases set aside and no new complaints being accepted.
Its absence means the only legal recourse to hate propaganda in Canada is criminal charges, which are rarely pursued because they require the political approval of provincial attorneys general, who are notoriously reluctant to give consent — a trend illustrated last week by the refusal of Ontario’s Attorney General to prosecute a man who told a pro-Palestinian rally in Toronto that Jews must be expelled from Jerusalem or killed.