September 2, 2009

QotD: Section 13 violates the Charter of Rights and Freedoms

Filed under: Cancon, Law, Liberty, Quotations — Tags: , , — Nicholas @ 10:54

I have determined that Mr. Lemire contravened s. 13 of the Act in only one of the instances alleged by Mr. Warman, namely the AIDS Secrets article. However, I have also concluded that s. 13(1) in conjunction with ss. 54(1) and (1.1) are inconsistent with s. 2(b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit within the meaning of s. 1 of the Charter. Since a formal declaration of invalidity is not a remedy available to the Tribunal (see Cuddy Chicks Ltd. V. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5), 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 (see Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at paras. 26-7).

Athanasios D. Hadjis, Canadian Human Rights Tribunal decision in Warman vs. Lemire, 2009-09-02


  1. Steve M. asked for clarification on what this meant via Facebook, so this is my quick interpretation:

    I’m not a lawyer, nor do I play one on Facebook, but the whole decision is quite hard to read if you’re not used to this sort of writing (well, _I_ find them hard to read, anyway). Section 13 of the Canadian Human Rights Act has been found to violate section 2(b) of the Charter of Rights and Freedoms, and therefore cannot be enforced.

    This is very good news for free speech in Canada, as section 13 of the CHRA had very draconian restrictions on what could be said or communicated through electronic means. It was a clumsy attempt to punish “hate” speech, but it restricted many other forms of speech in pursuit of this goal. It no longer applies, according to this decision.

    Comment by Nicholas — September 2, 2009 @ 11:38

  2. Hmmm. Terrence Watson at The Shotgun thinks we’re celebrating prematurely:

    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.)

    Comment by Nicholas — September 2, 2009 @ 18:11

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