The Politics of Hate Speech: A Case Comment on 'Warman v. Lemire'

This article originally appeared in volume 19 of Constitutional Forum constitutionnel published by the Centre for Constitutional Studies.

In September 2009, the Canadian Human Rights Tribunal waded into a highly public and acrimonious debate about the role of human rights tribunals and commissions, especially in policing hate speech. In Warman v. Lemire,1 the Tribunal held that section 13(1) of the Canadian Human Rights Act2 (CHRA), which prohibits the communication of hate messages, infringed the constitutional guarantee of freedom of expression, section 2(b) of the Charter of Rights and Freedoms.3 The decision added to a firestorm of media, political and academic debate about whether anti-discrimination statutes should prohibit hate speech. The Warman decision is complicated by a twenty year-old Supreme Court ruling, in a 4-3 decision, that a predecessor provision in the CHRA is constitutional.4

In this article, I argue that the Tribunal's decision is logically unsound and likely the result of ends-based or teleological reasoning. In my view, ends-based reasoning does not assist in Charter analysis as it produces decisions that call into question the legitimacy of the courts. This article first outlines the facts in Warman and the Tribunal's holding on the constitutional issues. It goes on to survey the legal and constitutional background to the Warman decision and discuss the Taylor precedent. It then describes the Tribunal's reasoning on constitutional issues, including the Taylor decision and amendments to the CHRA after Taylor. Finally, it criticizes the Tribunal's ends-based reasoning and argues that this type of reasoning is illegitimate in constitutional decision-making.

Background

Richard Warman filed a complaint with the Canadian Human Rights Commission alleging that Marc Lemire communicated hate messages over the Internet in breach of section 13 of the CHRA. Warman is an Ottawa-based lawyer and a former employee of the Commission. He has filed eleven other complaints against individuals and groups he accuses of communicating hate in breach of section 13, all but two of which have resulted in a finding of discrimination by the Canadian Human Rights Tribunal.5 Marc Lemire is the former leader of the Heritage Front, a white supremacist organization.6

Warman alleged that Lemire is the owner and webmaster of Freedomsite.org, and that comments posted on Freedomsite's message board were hate messages.7 At the Tribunal hearing, Warman and the Commission expanded the complaint to allege that: (a) Lemire was also the registered owner of JRBooksonline.com, and hate messages had been posted on JRBooksonline's message board; and (b) Lemire posted hate messages on Stormfront.org's message board.8

Lemire admitted to being the webmaster and owner of Freedomsite.org. In 2006, the Tribunal found that Craig Harrison had posted messages to the Freedomsite message board that were in breach of section 13.9 A number of other people, including Lemire, posted messages on Freedomsite.org that Warman and the Commission argued were discriminatory. There were also a number of anonymous articles posted on Freedomsite.org. Warman alleged that Lemire posted hate messages on Freedomsite. org, that Lemire and Harrison were working in concert in respect of Harrison's postings, and that Lemire incited Harrison and others to discriminate by setting up Freedomsite.org. The Commission supported these arguments and also argued that Lemire was liable in his capacity as website administrator for Freedomsite. org, or vicariously liable for Harrison's conduct. Warman and the Commission made similar allegations about content posted on the JRBooksonline.com website, though Lemire denied being its owner or webmaster, and there was no evidence that Lemire posted messages or content to the website. In respect of Stormfront.org, Warman alleged that Lemire posted a poem on the website that was inflammatory and derogatory towards non-white immigrants, and created a tone of hatred and contempt towards that class of persons.10

Lemire defended these allegations on the basis that he was not the owner or webmaster of JRBooksonline.com; that he cannot be liable for other persons' postings on Freedomsite.org; and that his postings on Freedomsite.org and Stormfront.org are not hate messages. Lemire also argued that sections 13, 54(1) and 54(1.1) of the CHRA violated his rights under section 2(a), 2(b) and 7 of the Charter and his rights under the Canadian Bill of Rights,11 though he did not make any submissions on the latter issue.12

On the merits, the Tribunal found that Lemire had breached section 13 of the CHRA with his poem on the Stormfront.org website and the anonymous postings on the Freedomsite.org website, which only he could have posted as he was the website's webmaster.13

On the freedom of expression issue, the Commission and the Attorney General of Canada conceded that section 13 of the CHRA breached section 2(b) of the Charter. In considering whether section 13 minimally impaired freedom of expression, the Tribunal held that recent amendments to section 13 removed the "remedial, preventative and conciliatory" nature of the provision.14 As such, the Tribunal held that section 13 cannot be justified as a reasonable limit on the section 2(b) right.

The Tribunal dismissed Lemire's section 2(a) claim, saying that there was no evidence that Lemire or anybody else made postings as a matter of conscience or their religious practice.15 The Tribunal similarly dismissed Lemire's section 7 claim on the basis that there was no evidence of his life, liberty or security being infringed.16

Statutory and Constitutional Framework17

Section 13 of the CHRA prohibits the communication of messages that are likely to expose a person to hatred or contempt on the basis of a prohibited ground of discrimination, either by telephone or by the Internet:

13. (1) 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.

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.18

Section 13(2) of the CHRA was amended in December 2001 as part of the Anti-terrorism Act.19 the new section 13(2) was linked to the "war on terrorism" by the federal government in two ways: prohibitions on hate speech would both reduce the risk of terrorism and protect ethnic and religious minorities from persecution in the event of a terrorist attack.20

Sections 54(1) and (1.1) provide for remedies for breaches of section 13, including cease-and-desist orders, compensation to the victim up to $20,000, and a penalty of not more than $10,000. In determining whether to order a penalty, the Tribunal must consider: (a) the nature, circumstances, extent and gravity of the discriminatory practice; and (b) the willfulness or intent of the person who engaged in the...