RSS FeedAthanasios Hadjis Rules in Lemire v. Warman
In the high profile case between Marc Lemire and Richard Warman, the Canadian Human Rights Tribunal has refused to apply s. 13 of the Canadian Human Rights Act, which stated that hate messages also affected,
…a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet…
Tribunal chair Athanasios Hadjis said,
Since a formal declaration of invalidity [of Section 13(1)] is not a remedy available to the Tribunal, I will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial order against him
The complete decision can be reviewed here (I’m reading it now):
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Off the hook? Not necessarily – Mr. Warman will likely seek judicial review. And the civil actions still exist for defamation, as well as much more rigorous Criminal Code provisions, will still attempt to regulate Internet activity.
This paper by Alexander Thesis, commissioned by the Attorney General of Canada, comes to a different conclusion – the provision is rationally connected with minimal impairment.
Here’s a scorecard of the outcome of judicial reviews of CHRT decisions:
| 2004 | 2005 | 2006 | 2007 | TOTAL | |
| Cases referred | 139 | 99 | 70 | 82 | 390 |
| Decisions rendered | 14 | 11 | 13 | 20 | 58 |
| Upheld | 6 | 1 | 0 | 0 | 7 |
| Overturned | 0 | 0 | 2 | 0 | 2 |
| Judicial review withdrawn or struck for delay | 1 | 0 | 1 | 0 | 2 |
| Judicial review pending | 0 | 1 | 1 | 7 | 8 |
| Total challenges | 7 | 2 | 4 | 7 | 20 |
Updates
Commentary by various personalities, both for and against, available here.
Terrence Watson points out that it’s only the penalty that was deemed unconstitutional, not the provision itself, and Big City Lib points out it will have limtied effect on future cases.
Law is Cool Podcast: Human Rights Commissions (Episode 17)
If you have been following magazines and blogs for the past year, you are probably aware of the human rights and free speech controversy involving Mark Steyn and Maclean’s. Starting in 2005, Maclean’s ran a series of articles by Steyn and Barbara Amiel which, according to a group of Osgoode Hall law students, cast Muslims in a dangerously negative light. Frustrated, the students asked the magazine to provide space for them to write a 5,000-word rebuttal article. After the Editor-in-Chief refused, the students filed a human rights complaint against the magazine with the Ontario Human Rights Commission.
What came next can only be described as a firestorm of controversy in the media. A number of journalists and media outlets cried foul, arguing that Human Rights Commissions were being used to impose political correctness on the media creating a chilling effect on free speech. Former Western Standard publisher Ezra Levant took up the cause, as did a number of editorial boards across the country. The intense media criticism of Human Rights Commissions soon caught the attention of federal politicians, with Liberal MP Keith Martin calling for the repeal of hate speech provisions from federal human rights law. A vicious war has erupted on the blogosphere; several prominent figures in the controversy have received death threats via email and in blog comments. Neo-Nazi websites have openly advocated for the execution Richard Warman and other human rights lawyers.
In this episode of the Law is Cool Podcast, Omar Ha-Redeye attempts to cut through the media spin to find out what Human Rights Commissions really are and how they work. Omar interviewed two experienced human rights lawyers to get their views on the current controversy.
The first is Montreal-based international human rights lawyer Pearl Eliadis. She argues that the media coverage of the Human Rights Commission controversy has been unbalanced. She claims that Canadians are being “lied to” about the role of Human Rights Commissions and the character of freedom of speech in Canadian law. She recently wrote an article in Montreal’s Maisonneuve magazine called “The Controversy Entrepreneurs”. In that article, she seeks to dispel seven “myths” surrounding the controversy, including:
- Free speech is an absolute right.
- Human rights laws were not made to restrict speech.
- Human rights laws only apply to discriminatory conduct, not discriminatory speech.
- Human rights laws do not apply to the media.
- Human Rights Commissions dispense “parallel justice,” “prosecuting” and “convicting” people outside of normal legal channels.
- Human Rights Tribunals are rabid, out-of-control bastions of political correctness with 100% conviction rates.
- Free speech is under attack by frivolous, expensive, time-consuming complaints.
Eliadis deconstructs each of these myths and argues that Human Rights Commissions play a valuable role in the protection of all human rights, including freedom of speech. In her interview with Omar, she notes that it is unfortunate that many involved in this controversy have sought to paint the law students who brought the original complaint with the same brush as radical Islamists. In this sense, she says, an equality-seeking group has become further marginalized by bringing forward its complaint. She notes that the Commissions have characterized Mark Steyn’s writing as inaccurate, fear-mongering, and lacking in objectivity.
Ultimately, Eliadis believes that journalists such as Steyn and Levant who attack Human Rights Commissions are doomed to fail. Since some of the people who support the abolition of these Commissions have links to white supremacy groups, Eliadis believes that any such project will likely fail.
Next, Omar interviewed Donna Seale, former Co-Counsel for the Manitoba Human Rights Commission. Seale currently runs a consulting business in Winnipeg that provides educational seminars for employers on human rights issues relating to employment and the workplace. Her blog, generally updated on weekly basis, is clearinghouse of workplace human rights information.
Seale notes that Human Rights Commissions serve in a “gatekeeper” capacity to try to resolve complaints before they proceed to an expensive and time-consuming tribunal process. She believes that the Commissions are valuable because they are less adversarial than tribunals and their goal is to resolve conflicts quickly and amicably between the parties.
Seale also argues that it is a mischaracterization to portray the Commissions as guardians of political correctness that have a chilling effect on speech. Indeed, she claims that hate speech-related cases are extremely exceptional. She says that most of the cases heard by Provincial Human Rights Commissions relate to discrimination in employment, services, and housing. She rejects the argument that Human Rights Commissions should be abolished because they “do no good.”
In Seale’s consulting business, she seeks to help both employers and employees understand their roles and responsibilities in terms of meeting their human rights law obligations in the workplace. She believes that litigation can be avoided if both parties work together to understand their respective roles in terms of human rights.
A Country Run by the Mob(osphere)
When “free speechers” publish letters by lawyers or put legal proceedings online, they themselves are attacking free speech by attempting to intimidate legal proceedings [same applies for when their supporters attack websites].
That’s what John W. Dozier claims, in his American piece on Copyright Rights and Free Speech,
The first intended use is for it to chill the rights of businesses to speak without fear of a mob attack. It is often published to incite an overwhelming force to attack a business in many ways, both legal and illegal, and to intimidate businesses into submission. The publication itself, in this context, is an attack on our free speech rights. Chilling effect is an understatement. The second is even more obvious. If the business decides to move forward, the recipient uses the threat of posting it to gain an advantage in the legal dispute. The threat is not one founded upon the public’s right to know. It is founded upon a belief that the threat of publication of the cease and desist letter will get the recipient a better “financial settlement”, which is often a nice way of saying that “if you pay me off I will stop the attacks and remove the postings about your company, and if not, well, you’ll have to suffer the consequences “. That, my friends, smells of extortion. But it happens every day. These public interest and free speech groups know it…
Dozier terms such collectives as the “mobosphere,” and provides services to clients who are attacked by these organized groups.
The typically American problem has slowly entered Canada by right-wing groups pursuing similar tactics.
But some lawyers are pushing back.
Richard Warman, the lawyer who has championed human rights against neo-Nazi groups before tribunals, is suing a whole slew of far-right blogs claiming they have libeled him.
But Warman has also named the National Post is his proceedings, demonstrating the complex and often incestuous relationship between some publications in Canada and the far-right.
A Far-Right Bias in Media?
Canadians have overwhelmingly suspected and complained of a strong right-wing media bias in our country.
But their concerns have in many ways been confirmed with the presence of Prime Minister Stephen Harper at a party celebrating CanWest Global‘s expansion, led by CEO Leonard Asper. They are now the country’s largest media company, and are even launching their own news wire service to compete with Canadian Press.
Lawrence Martin said in the Globe and Mail,
Their continued ascendancy is a major blow — tilt the message and you gradually tilt the mind — to the left and to moderates. The Aspers make no bones about their conservative bias.
The Aspers attempt to defend themselves by saying that a philosophical bias in no way means a conservative reporting bias. But some would beg to differ.
Robert Fisk of the Independant has raised concerns about bias in the American media. But these are nothing compared to what we see in Canada,
In Canada, the situation is even worse. Canwest, owned by Israel [Izzy] Asper [at the time], owns over 130 newspapers in Canada, including 14 city dailies and one of the country’s largest papers, the National Post. His “journalists” have attacked colleagues who have deviated from Mr Asper’s pro-Israel editorials. As Index on Censorship reported, Bill Marsden, an investigative reporter for the Montreal Gazette has been monitoring Canwest’s interference with its own papers. “They do not want any criticism of Israel,” he wrote. “We do not run in our newspaper op-ed pieces that express criticism of Israel and what it is doing in the Middle East…”
David Beers of The Tyee explains how the Aspers forced their papers to publish editorials from their headquarters, and fired journalists that disagreed with their positions.
Research has shown again and again that “those election issues covered prominently in the news media tend to be perceived by the public as the most important election issues. Items buried tend not to make it on the agenda for public discussion.” Edge says the message is clear: “While the media can not tell us what to think, they are very influential in telling us what to think about. The way these stories are covered not only tell us what to think about, but how we think about it.”
Balance Needed
A true democracy with real freedom of speech requires dialogue on both sides of any debate, what the courts have termed, “the marketplace of ideas.” But even this concept has its limitation, as stated in R v. Keegstra [1990] S.C.J. No. 131,
Freedom of expression is seen as a means of promoting a “marketplace of ideas”, in which competing ideas vie for supremacy to the end of attaining the truth. The “marketplace of ideas” metaphor was coined by Justice Oliver Wendell Holmes, in his famous dissent in Abrams v. United States, 250 U.S. 616 (1919). This approach, however, has been criticized on the ground that there is no guarantee that the free expression of ideas will in fact lead to the truth. Indeed, as history attests, it is quite possible that dangerous, destructive and inherently untrue ideas may prevail, at least in the short run.”
Courts have also recognized that when dealing with vulnerable minorities, an equal exchange may not always be possible. Irwin Toy Ltd. v. Quebec (Attorney General) examined the vulnerability of children, for example, at the hands of corporations,
The concern is for the protection of a group which is particularly vulnerable to the techniques of seduction and manipulation abundant in advertising…
Thus, in matching means to ends and asking whether rights or freedoms are impaired as little as possible, a legislature mediating between the claims of competing groups will be forced to strike a balance without the benefit of absolute certainty concerning how that balance is best struck. Vulnerable groups will claim the need for protection by the government whereas other groups and individuals will assert that the government should not intrude. In Edwards Books and Art Ltd., supra, Dickson C.J. expressed an important concern about the situation of vulnerable groups (at p. 779):
In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.
A Dangerous Threat
Izzy Asper is the same individual who wanted to move the capital of Canada from Ottawa to his hometown Winipeg, obviously in complete disregard to the importance of Quebecois in Canadian society. He would strangely lobby from within the Liberal party, while making significant financial contributions to the Conservatives.
The company, now run by Izzy’s son, poses such a threat to Canadian society that some have written entire books on it. Marc Edge is the author of Asper Nation: Canada’s Most Dangerous Media Company.
Beers asks,
But even if CanWest owns dozens of newspaper across the nation along with Global TV and other television stations reaching 94 per cent of all Canadians, and even if CEO Leonard Asper has said he aims to make his company one of the top five media companies on the planet, how much torque can the Aspers really put on our democratic process?
Enough, it seems. What’s really scary is how these perspectives may change the fabric of Canada itself. Martin says,
You alter the character of a country by changing how it sees itself. You can change how it sees itself by changing the character of its media. Led by the Aspers, the character of Canadian media is changing.
Modern history has seen fascism, communism, brutal dictatorships, and liberal democracies. What exactly would we call a political system that is run by the media?
The 20th c. had the mafia and the mob. The 21st c. might just have the mobosphere, unless the public and politicians are alerted to this potential threat.
