In this case, an application is brought forward by the Canadian Human Rights Commission to the Federal Court’s Act 2 to request the judiciary to review the Canadian Human Rights as rendered by Athanoisios D. Hadjis. The respondents are Richard Warman, the Canadian Attorney General and Marc Lemire. Richard Warman is the complainant, who claims that Marc Lemire, the respondent has several times through the internet communicated and also caused communication of hate messages thus breaching Canadian Human Rights Act’s section 13.The complainant alleges that the messages communicated are discriminatory to people on the basis of race, sexual orientation, religion, and ethnicity.
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As a result, people of different ethnicities ranging from blacks, Mexicans, Italians, and Jews among others have been exposed to contempt as well as hatred according to section 13 (1) of the Canadian Human rights Act. The respondent denies these allegations claiming that he has not communicated or even caused the communication of hate messages said to be discriminatory. This paper will focus its attention on analyzing the issue or rather law under the case of Warman versus Lemire and how to address these issues.
The case and complaint
Warman alleges that Lemire owns and is the webmaster of Freedomsite.org where the public is allowed to comment and air their views on different subjects. During the hearing, the complainant Mr. Warman and the commission expand the complaint so as to allege that: Lemire is also the owner of JrBooksonline.com where hate messages have been posted on its board and that Lemire has himself posted hate messages on another site named Stomfront.org.
Well, Lemire admits being the owner and webmaster of Freedomsite.org but the tribunal finds one Craig Harrison in breach of the rights act under section 13. The commission supports the allegations against Lemire and other users of the two online sites. Lemire denies the charges and argues that his rights had been violated by sections 13, 54 (1) and 54(1.1) of the Canadian Human Rights Act. Though he does not make legal move regarding this issue, he does know that under the Canadian Bill of Rights and the Charter, his rights have been violated under sections 2 (a), 2(b), as well as section 7 (Walker 98).
The tribunal has to address various issues considering the evidence presented. First, it has to establish whether the material posted can expose an individual or individuals to contempt or hatred leading to discrimination. It has to establish whether impugned messages either communicated wholly or partly are by any means authorized by the government. It has to prove if the messages were sent repeatedly, if the respondent controlled the website and if he really communicated or caused communication of hate messages.
The section 13 of the Act does prohibit the sending of messages that can in one way or another expose a person to contempt or hatred on grounds of discrimination whether on internet or through the phone.
On the other hand, section 2(b) of the charter states that “everyone has freedom of thought, belief, opinion, and expression.” This includes press freedom and other communication media.
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The issues, arguments and law
The judicial review application by the Canadian Human Rights Commission has been done to clarify some technical but very important legal matters. The matters actually go beyond this particular case because they pose possible impacts on other tribunals.
According to Agarwal therefore, the issues can be summarized as follows: “Did the tribunal err in finding that section 13 of the Canadian Human Rights Act in conjunction with sections 54 (1) and 54 (1.1) are inconsistent with section 2 (b) of the charter?” (65). “Did the tribunal fail regarding the effects of Section 13 on Sections 54 (1) and 54 (1.1).” And the third issue is, “are sections 13, 54 (1), and 54 (1.1) valid according to the constitution” (Moon 120).
With reference to the case, the tribunal strayed as per the law regarding to the manner in which the commission exercised its mandate. As a result, the section 13 of the Act can be said to be constitutionally invalid.
The reason why the tribunal is said to have acted unconstitutionally stems from its adoption of the subsections of section 54 of the Act following the decision of the Supreme Court of Canada in the case of the Human Rights Commission versus Taylor (1990). In this perspective, the tribunal strayed when it failed to apply section 13 and subsections 54 (1) (c) and 54 (1.1).
From these three issues, it is clear that the tribunal did not sufficiently interpret section 13 of the Act which is recognized in such matters by the Supreme Court.
In the first issue, section 13 of the Act as amended in 1976-1977 is not in any way consistent with the Charter of Rights. As observed by Hadjis, the amendments done to the Act, section 13 does play a significant role when imposing sanctions of moral and financial nature.
In the second issue, it is clear that the tribunal did not commit error in law regarding section 54 (1) and 54 (1.1). The tribunal acted according to law regarding this issue; this is because, what the parliament has already enacted cannot be altered by any tribunal.
On the third issue on section validity, the Taylor case concludes that “If the court is satisfied that S. 13(1) intrudes on the fundamental freedom of expression in ways that cannot, even with the greatest deference to Parliament, be justified by the objectives it seeks to promote, the court may and should declare the offending section unconstitutional” (Levant 113).
Tolerating bloggers in a way that they can express their views and opinions over the internet could eliminate such issues in future. Encouraging other designated groups to allow bloggers freely express their views would work well too. Tolerating such internet users is the best solution considering the freedom of expression of one’s thoughts, beliefs, and opinions. Doing so will attract more opinions from different people across the globe and hate speech will be neutralized. Through such forums the people who post suggestive messages can be cautioned by their fellow bloggers against such vices. On the other hand, tolerating the bloggers could make the situation worse since everyone is allowed to freely post their feelings and opinions on subjects under discussion.
Repealing section 13of the Canadian Human Rights Act could also serve as a solution. Repealing this section would address the issue of hate material over the internet. The criminal code sections 318 and 319 make it clear that any individual or individuals who incite and promote discrimination can be prosecuted in a court of law for such offences. At the same time, section 320 does allow for removal of any hate messages found on the web. With reference to the Criminal Code therefore, its provisions are enough in prohibiting discrimination of people on the basis of religion, race, or ethnicity.
Enforcement of the Criminal Code in Canadian law therefore can help in the elimination of hate messages. The Canadian law clearly states that hate messages are an offence that requires investigation and prosecution in the court of law. Like any other offence, hate speech can attract a jail term or penalty. Repealing section 13 of the Canadian Human Rights Act may be the best solution but the process could be long for it must pass through various processes (Cohen 12). This is because investigations on the section must be carried out for the other repealing processes to continue.
Warman versus Lemire case explains the roles which commissions of human rights and tribunals play in eliminating hate messages or rather hate speech via the internet. During this case, the tribunal concluded that the section 13 of the Canadian Human Rights Act did infringe the section 2 (b) of the Charter of Rights and Freedoms which allows for freedom of expression. For this reason, three issues faced the tribunal.
The decision given by the tribunal during the case sounds illogical considering sections 13 of the Human Rights Act and those of the Charter of Rights and Freedoms. The solutions to these three issues could either be tolerating the internet bloggers or repealing section 13 of the Canadian Human Rights Act. The Criminal Code has measures put to deal with matters of hate speech especially over the internet. Therefore, this issue should be dealt by the Criminal code only.
Agarwal, Ranjan. “Politics of Hate Speech: A Case Comment on Warman v. Lemire.” Const. F. 19. 5 (2010): 65. Print.
Cohen,Almagor. “In Internet’s Way.” The warman versus lemire case, 1. 1 (2007): 12. Print.
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Levant, Evans. “Shakedown: how our government is undermining democracy in the name of human rights.” USA: McClelland and Stewart Ltd, 2009. Print.
Moon, Richard. “The Attack on Human Rights Commissions and the Decline of Public Discourse.” Saskatchewan Law Journal 73. 1 (2011): 93-129. Print.
Moon, Richard. “Law Review Lecture: The Attack on Human Rights Commissions and the Corruption of Public Discourse. Sask. L. Rev 73. 1 (2010): 93-309. Print.
Walker, Julian. “Section 13 of the Canadian Human Rights Act, Anti-Hate Laws and Freedom of Expression.” Canada: Parliamentary Information and Research Service, 2010. Print.
Warman versus Lemire. Web.