Cablegate: Canada: Free Speech V. Hate Speech Headed To

DE RUEHOT #0789/01 2862047
P 132047Z OCT 09




E.O. 12958: N/A

REF: A. 08 OTTAWA 1059
B. 08 OTTAWA 1032

1. (SBU) Summary: The Canadian Human Rights Commission
(CHRC) has appealed to the Federal Court to clarify Canada's
hate speech laws after a controversial ruling by the Canadian
Human Rights Tribunal. The Tribunal's finding related to the
constitutionality of a law and penalty targeting the
dissemination of hate speech over the telephone or internet.
CHRC accepts the Tribunal's finding that the penalty is
unconstitutional but is challenging the decision on two
procedural points of law. Advocacy groups reject the idea
that the Tribunal's decision represents "a sea-change" in
Canada's hate speech laws, however. MPs from all parties
continue to voice support for Canada's hate speech laws,
while admitting some flaws. End Summary.

Warman v. Lemire: Judicial History

2. (U) In 2003, Ontario attorney Richard Warman had filed
separate human rights complaints against white supremacist
Marc Lemire, journalist Mark Steyn, and Maclean,s magazine
with CHRC, the Ontario Human Rights Commission, and the
British Columbia Human Rights Tribunal for the dissemination
of allegedly anti-Semitic and anti-gay hate speech in an
article published by Maclean,s and on postings to Lemire,s
websites. At the provincial level, the cases were ultimately
dismissed -- in Ontario, for lack of jurisdiction, and, in
British Columbia, for failure to meet the standard of hate
speech (reftels).

3. (U) At the federal level, however, the CHRC referred the
case to the Tribunal when Warman refused to participate in
mediation sessions. Warman claimed that messages posted on
websites of which Lemire was the webmaster or owner exposed
Italians, Mexicans, Puerto Ricans, Haitians, francophones,
Blacks, First Nations persons, East Asians, non-Whites, Jews,
and homosexuals to hatred and contempt. Section 13 of the
Human Rights Act prohibits the telecommunication of 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," i.e. religion, race, color,
national or ethnic origin, or sexual orientation.

4. (U) On September 2, Athanasios D. Hadjis, Vice Chairman
of the Tribunal, refused to apply Section 13 in Warman v.
Lemire, finding it "inconsistent with the Charter (of Human
Rights), which guarantees the freedom of thought, belief,
opinion, and expression" and that the restrictions are not "a
reasonable limit" as defined by the Charter. Noting that the
Tribunal does not have the statutory authority to declare a
law invalid, Hadjis chose instead to "simply refuse to apply
these provisions." In his 107 page ruling, Hadjis determined
that Lemire did breach Section 13 in one instance of nine
allegations of hate speech. However, he also found that the
CHRC had grown increasingly "aggressive" and "penal in
nature" and that it sought to exact stiff punitive penalties,
not remedial measures, in its handling of human rights cases,
thereby rendering Section 13 unconstitutional.

CHRC Appeal

5. (U) On October 1, CHRC applied to the Federal Court for
judicial review of Warman v. Lemire, seeking a binding
decision by a higher court to counter the "uncertainty"
raised by the Tribunal's decision. CHRC argued that the
Tribunal erred in law on two technical legal issues: when it
found that the "manner" of the CHRC's investigations of hate
Qfound that the "manner" of the CHRC's investigations of hate
speech complaints rendered the section of law
unconstitutional; and, when it found that the punitive
measures available in two sub-sections of the law rendered
the entirety of Section 13 unconstitutional. (These punitive
measures include the levying a penalty and "special
compensation" on the defendant.) The Federal Court is
expected to hear the case within six months, although its
decision could take an additional many months to appear.

6. (SBU) The CHRC's senior counsel confirmed to poloff that
CHRC agreed with the finding of unconstitutionality of the
penalty clause. He underlined, however, that "a refusal to
apply the clause would have solved the problem without
getting rid of the whole law." He also emphasized that CHRC
also endorsed the Tribunal's narrow interpretation of Section

OTTAWA 00000789 002 OF 002

13, in which the alleged hate speech must say that there is
"no redeeming quality" to the person or persons, and must
include "extreme virulent feelings of detestations to an
entire race - hating merely for drawing breath." The senior
counsel, however, distanced CHRC from the findings of a 2008
CHRC-commissioned report by Richard Moon -- which had
recommended that only hate speech linked to violence should
be restricted and that Section 13 should be repealed -- by
insisting that CHRC does not believe a "call to violence"
must be included for the law to prohibit the speech.

Practical implications

7. (U) For the foreseeable future, CHRC must -- by its
mandate -- continue to accept and investigate complaints
filed under Section 13, until/unless Parliament repeals it or
the Federal Court finds it unconstitutional. Nor are other
Tribunal members or provincial tribunals even obliged to
adhere to Hadjis' ruling. Advocacy groups and non-profit
organizations have publicly supported the CHRC appeal and
have denied that this ruling marks a sea-change in Canada's
prohibitions against hate speech. B'nai B'rith Canada has
reiterated its support for Section 13 and the continued
investigation of hate speech against all protected
minorities. The Canadian Jewish Congress separately
commented that "one ruling by one adjudicator" does not
change existing law.

8. (U) On October 5, the House of Commons' Committee on
Justice and Human Rights reviewed Section 13, hearing
testimony from journalists as well as political commentators
Mark Steyn and Ezra Levant. Conservative, Liberal, Bloq
Quebecois, and New Democratic Party MPs questioned them
closely on justifiable limits to free speech; MPs from all
parties appeared to support the protection of human rights
against, at a minimum, speech that justifies violence against
the members of a protected group. Conservative MPs, however,
focused their questioning mostly on the time and cost
inequities forced by the CHRC process on defendants.
Opposition MPs challenged assertions that freedom of
expression is a "higher" right than the protection of
minorities against hate speech.

9. (SBU) Comment: There is little public debate over or
political interest now in overhauling Canada's federal and
provincial human rights legislation -- including
Parliamentary abrogation of Section 13 language on penalties
-- despite the earlier spike of interest in the Maclean's
case. A Federal Court ruling upholding or rejecting Vice
Chairman's Hadjis' ruling should eventually help to clarify
how the CHRC should proceed in dealing with alleged hate
crimes, but that decision could also face a further appeal to
the Supreme Court, one way or another.

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