VZCZCXRO9004
PP RUEHGA RUEHHA RUEHMT RUEHQU RUEHVC
DE RUEHOT #0789/01 2862047
ZNR UUUUU ZZH
P 132047Z OCT 09
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC PRIORITY 9941
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 02 OTTAWA 000789 
 
SENSITIVE 
SIPDIS 
 
STATE FOR DRL/AWH 
 
E.O. 12958: N/A 
TAGS: PHUM PGOV CA
SUBJECT: CANADA: FREE SPEECH V. HATE SPEECH HEADED TO 
FEDERAL COURTS 
 
REF: A. 08 OTTAWA 1059 
     ¶B. 08 OTTAWA 1032 
     ¶C. 08 VANCOUVER 264 
 
¶1.  (SBU) Summary: The Canadian Human Rights Commission 
(CHRC) has appealed to the Federal Court to clarify Canada's 
hate speech laws after a controversial ruling by the Canadian 
Human Rights Tribunal.  The Tribunal's finding related to the 
constitutionality of a law and penalty targeting the 
dissemination of hate speech over the telephone or internet. 
CHRC accepts the Tribunal's finding that the penalty is 
unconstitutional but is challenging the decision on two 
procedural points of law.  Advocacy groups reject the idea 
that the Tribunal's decision represents "a sea-change" in 
Canada's hate speech laws, however.  MPs from all parties 
continue to voice support for Canada's hate speech laws, 
while admitting some flaws.  End Summary. 
 
---------------------------------- 
Warman v. Lemire: Judicial History 
---------------------------------- 
 
¶2.  (U) In 2003, Ontario attorney Richard Warman had filed 
separate human rights complaints against white supremacist 
Marc Lemire, journalist Mark Steyn, and Maclean,s magazine 
with CHRC, the Ontario Human Rights Commission, and the 
British Columbia Human Rights Tribunal for the dissemination 
of allegedly anti-Semitic and anti-gay hate speech in an 
article published by Maclean,s and on postings to Lemire,s 
websites.  At the provincial level, the cases were ultimately 
dismissed -- in Ontario, for lack of jurisdiction, and, in 
British Columbia, for failure to meet the standard of hate 
speech (reftels). 
 
¶3.  (U) At the federal level, however, the CHRC referred the 
case to the Tribunal when Warman refused to participate in 
mediation sessions.  Warman claimed that messages posted on 
websites of which Lemire was the webmaster or owner exposed 
Italians, Mexicans, Puerto Ricans, Haitians, francophones, 
Blacks, First Nations persons, East Asians, non-Whites, Jews, 
and homosexuals to hatred and contempt.  Section 13 of the 
Human Rights Act prohibits the telecommunication of 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," i.e. religion, race, color, 
national or ethnic origin, or sexual orientation. 
 
¶4.  (U) On September 2, Athanasios D. Hadjis, Vice Chairman 
of the Tribunal, refused to apply Section 13 in Warman v. 
Lemire, finding it "inconsistent with the Charter (of Human 
Rights), which guarantees the freedom of thought, belief, 
opinion, and expression" and that the restrictions are not "a 
reasonable limit" as defined by the Charter.  Noting that the 
Tribunal does not have the statutory authority to declare a 
law invalid, Hadjis chose instead to "simply refuse to apply 
these provisions."  In his 107 page ruling, Hadjis determined 
that Lemire did breach Section 13 in one instance of nine 
allegations of hate speech.  However, he also found that the 
CHRC had grown increasingly "aggressive" and "penal in 
nature" and that it sought to exact stiff punitive penalties, 
not remedial measures, in its handling of human rights cases, 
thereby rendering Section 13 unconstitutional. 
 
----------- 
CHRC Appeal 
----------- 
 
¶5.  (U) On October 1, CHRC applied to the Federal Court for 
judicial review of Warman v. Lemire, seeking a binding 
decision by a higher court to counter the "uncertainty" 
raised by the Tribunal's decision.  CHRC argued that the 
Tribunal erred in law on two technical legal issues:  when it 
found that the "manner" of the CHRC's investigations of hate 
Qfound that the "manner" of the CHRC's investigations of hate 
speech complaints rendered the section of law 
unconstitutional; and, when it found that the punitive 
measures available in two sub-sections of the law rendered 
the entirety of Section 13 unconstitutional.  (These punitive 
measures include the levying a penalty and "special 
compensation" on the defendant.)  The Federal Court is 
expected to hear the case within six months, although its 
decision could take an additional many months to appear. 
 
¶6.  (SBU)  The CHRC's senior counsel confirmed to poloff that 
CHRC agreed with the finding of unconstitutionality of the 
penalty clause.  He underlined, however, that "a refusal to 
apply the clause would have solved the problem without 
getting rid of the whole law."   He also emphasized that CHRC 
also endorsed the Tribunal's narrow interpretation of Section 
 
OTTAWA 00000789  002 OF 002 
 
 
13, in which the alleged hate speech must say that there is 
"no redeeming quality" to the person or persons, and must 
include "extreme virulent feelings of detestations to an 
entire race - hating merely for drawing breath."  The senior 
counsel, however, distanced CHRC from the findings of a 2008 
CHRC-commissioned report by Richard Moon -- which had 
recommended that only hate speech linked to violence should 
be restricted and that Section 13 should be repealed -- by 
insisting that CHRC does not believe a "call to violence" 
must be included for the law to prohibit the speech. 
 
---------------------- 
Practical implications 
---------------------- 
 
¶7.  (U) For the foreseeable future, CHRC must -- by its 
mandate -- continue to accept and investigate complaints 
filed under Section 13, until/unless Parliament repeals it or 
the Federal Court finds it unconstitutional.  Nor are other 
Tribunal members or provincial tribunals even obliged to 
adhere to Hadjis' ruling.  Advocacy groups and non-profit 
organizations have publicly supported the CHRC appeal and 
have denied that this ruling marks a sea-change in Canada's 
prohibitions against hate speech.  B'nai B'rith Canada has 
reiterated its support for Section 13 and the continued 
investigation of hate speech against all protected 
minorities.  The Canadian Jewish Congress separately 
commented that "one ruling by one adjudicator" does not 
change existing law. 
 
¶8.  (U)  On October 5, the House of Commons' Committee on 
Justice and Human Rights reviewed Section 13, hearing 
testimony from journalists as well as political commentators 
Mark Steyn and Ezra Levant.  Conservative, Liberal, Bloq 
Quebecois, and New Democratic Party MPs questioned them 
closely on justifiable limits to free speech; MPs from all 
parties appeared to support the protection of human rights 
against, at a minimum, speech that justifies violence against 
the members of a protected group.  Conservative MPs, however, 
focused their questioning mostly on the time and cost 
inequities forced by the CHRC process on defendants. 
Opposition MPs challenged assertions that freedom of 
expression is a "higher" right than the protection of 
minorities against hate speech. 
 
¶9.  (SBU) Comment: There is little public debate over or 
political interest now in overhauling Canada's federal and 
provincial human rights legislation -- including 
Parliamentary abrogation of Section 13 language on penalties 
-- despite the earlier spike of interest in the Maclean's 
case.  A Federal Court ruling upholding or rejecting Vice 
Chairman's Hadjis' ruling should eventually help to clarify 
how the CHRC should proceed in dealing with alleged hate 
crimes, but that decision could also face a further appeal to 
the Supreme Court, one way or another. 
 
Visit Canada,s North American partnership community at 
http://www.intelink.gov/communities/state/nap / 
 
JACOBSON