The case of Canada (Human Rights Commission) v. Warman, brought by the Canadian Human Rights Commission (CHRC), was a judicial review of a decision by the Canadian Human Rights Tribunal not to impose any penalty on Marc Lemire for breaching section 13 of the Canadian Human Rights Act 1985 (CHRA).

Section 13(1)  of the CHRA states;

 “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.”

Section 13 has drawn increasing attention from the media and campaign groups, particularly following controversial amendments that have significantly extended its scope. S13(1) was amended to extend its reach to the internet, and 13(2) now goes on to make this clear. A further amendment was made in 1998 which added a power to impose financial penalties. S54(1) CHRA now provides three penalties that may be imposed by the Tribunal following a breach of s13(1); an order to stop the discriminatory practice and make redress, an order to pay compensation to any person identified in the communication, and an order to pay a penalty of up to ten thousand dollars. The introduction of financial penalties was particularly controversial as it changed the nature of the s13(1) process from conciliatory to punitive, and it was precisely this change that gave rise to the constitutional issues in Lemire.

The Case

The CHRC pursued a complaint against Lemire for publishing an article entitled ‘AIDS Secrets’ on the white supremacist website The complaint was brought by Richard Warman a human rights lawyer, staunch anti-hate speech activist and former employee of the CHRC. Warman has made 16 hate speech complaints to the CHRC.

The original tribunal decision found that Lemire had breached s13(1) but declined to impose a penalty on the grounds that ss13(1) and 54(1) were an unjustified infringement of the right to freedom of expression as guaranteed by s2(b) of the Canadian Charter of Rights and Freedoms, and were therefore unconstitutional. In an earlier case, the Supreme Court in Canada (Human Rights Commission) v Taylor, [1990] 3 SCR 892 had previously ruled that s13(1) was constitutional. In Taylor the Court found that s13(1) was an infringement of the right to freedom of expression, but that this was justified under s1 of the Charter. S1 states that rights contained within the Charter are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”, effectively allowing infringements where they are minimal and justified. However, this decision predates the amendment of s13(1) adding the power to impose financial penalties. Indeed, the decision in Taylor was heavily based on the characterisation of the s13(1) process as conciliatory and remedial, and therefore, whilst the Tribunal could not overturn Taylor, they found that the changes constituted grounds for revisiting the constitutionality of s13(1).

Upon appeal, the Federal Court overturned this part of the decision, finding that the penalty provisions of s54(1) were severable from s13, thus preserving the controls within s13(1) albeit without the option of imposing penalties. According to the Court, whilst the punitive nature of s54(1) was an unjustified infringement on freedom of expression, s13(1) wasn’t. The decision was not well received by free speech campaigners who maintain that s13(1) is a intolerable encroachment on free speech, with or without s54(1) and simply needs to go. It appears they are not the only ones who feel that way. The Conservatives recently voted in favour of a private member’s bill to abolish s13, put forward by Conservative MP Brian Storseth. The move attracted criticism from some as yet another example of a controversial policy decision, which actually has full support of the government, being disguised as a private members bill. More worrying yet are the concerns expressed by some that this move is actually part of a wider campaign to abolish the Human Rights Commission altogether. The Commission undoubtedly has an important role to play in combating discrimination, most notably in the field of employment rights.  However, the question needs to be asked: have they got it right on hate speech?

‘Hate Speech’

The CHRC has attracted harsh criticism for the way hate speech complaints are handled, with some arguing that Canada’s human rights commissions were set up precisely to allow the usual safeguards inherent in the criminal process to be bypassed in respect of hate speech prosecutions. Critics point to the Commission’s 100% conviction rate, and argue that this has been achieved by a lowering of the standard of proof and a lack of adherence to the rules of natural justice. The situation is further aggravated by the fact that funding is available for the complainant, who may be a third party and need not have been directly affected by the alleged hate speech, yet there is no legal aid or government funding of any kind for the defendant. Warman’s involvement in the a large number of the investigations into hate speech complaints has also been heavily criticised, particularly in light of his admissions that he himself contributed to Neo-Nazi forums using pseudonyms. His admissions have led some on the right to accuse Warman of posting hate speech himself, during the course of his investigations.

The Commission has also been castigated for only pursuing those complaints that fit its particular ideological agenda. Thus, complaints about hate speech expressed by certain people are vigorously pursued, yet complaints such as that against Abou Hammad Sulaiman al-Hayiti are not. The complaint against Al-Hayiti was brought by  Candian blogger named Marc Lebuis, who argued that his book, published online, exposed gays, Jews, non-Muslims women and other identifiable groups to ‘hatred or contempt’. The CHRC declined to pursue the complaint, stating that Al-Hayiti’s comments did not meet the criteria for promoting hatred. Yet a similar complaint against a Christian pastor Stephen Boissoin was successfully pursued by the Alberta Human Rights Commission and resulted in an order that he refrain from publishing any further disparaging remarks about homosexuals. At the very least, this illustrates the difficult, and ultimately subjective, task of defining what qualifies as hate speech.

It is precisely this subjective nature that calls into question the validity of hate speech prosecutions. Even if the private members bill succeeds in abolishing s13, Canada is one of the few countries (in common with the United Kingdom) that has legislated against hate speech, so prosecutions could still be brought under the criminal law. S319.2 of the Canadian Criminal Code prohibits the wilful promotion of hatred against an identifiable group, an offence which attracts a maximum sentence of up to two years imprisonment. Although prosecutions under s319.2 would at least attract all the normal due process protections and be subject to the criminal laws of evidence, it is still doubtful if such a draconian attack on free speech can be justified.

It is perhaps unfortunate that the argument in Canada has been hijacked by some pretty extreme right wing groups. Indeed, Jonathan Kay wrote in the National Post that “Canada‘s human-rights censors have managed a seemingly impossible task: They’ve found a way to rehabilitate the image of neo-Nazis, transforming them from odious dirtbags into principled free-speech martyrs.” There’s a danger that the high profile involvement of the extreme right could lead to the debate being dismissed altogether. However, a careful consideration of the more measured responses, such as that given by the Canadian Civil Liberties Association (who intervened in Lemire), shows its time for a serious rethink on hate speech.

The question needs to be asked: should we ever prosecute hate speech? Although some free speech purist may argue that the answer to this question is a resounding ‘no’, most would agree that there are certain circumstances where prosecution is warranted. However, these circumstance need to be narrowly defined, and restricted only to situations where hate speech causes actual, identifiable harm such as where it is directly inciting violence. If hate speech is not causing particular, identifiable harm then we should tolerate it in the name of freedom of expression.

That doesn’t mean we shouldn’t be trying to tackle hate speech in some way, but the answer isn’t censorship it’s more speech. Allowing these views to be expressed also allows people to challenge them, and expose them for what they are. It is also important that work continues to redress the imbalances of power against vulnerable groups in society; in a more equal society such groups would be better placed to challenge any hate speech without having to use prosecution to do so. Prosecutions are not only an infringement on freedom of expression, they are counter productive. As the situation in Canada has illustrated, hate speech prosecutions backfire providing a platform for the views expressed and allowing those accused of hate speech to play the martyr. Furthermore, the subjective nature of hate speech is vulnerable to bias which can result in hate speech laws proliferating discrimination and prejudice, the very antithesis of the intention behind them.

Noam Chomsky said it best when he said, “If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.” The views expressed may be odious, unpleasant, and contemptible but allowing them to be expressed is the price we pay for true freedom of expression, and it is a price worth paying.

Eloise le Santo is a trainee barrister at Matrix Chambers

Photo from Mira (on the wall)