Human Rights Law Prohibiting Hate Messages by Telecommunication is Inconsistent with Charter’s Guarantee of Freedom of Expression

In a complaint against the owner and webmaster of a web site for allowing objectionable postings on the site’s message board by users, the Canadian Human Rights Tribunal (Tribunal) found that section 13(1) of the Canadian Human Rights Act (CHRA), which prohibits the telecommunication of hate messages, unjustifiably violated the respondent’s freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms (Charter). As result, the Tribunal ruled that section 13(1) was inoperative. Predecessor provisions had been unsuccessfully challenged under the Charter both in court and before the Tribunal. However, taking into account amendments to CHRA, Tribunal member Hadjis found that, coupled with the Tribunal’s power to impose a fine under section 54 for breach, the possibility of finding discrimination without the need to prove intent to discriminate under the current section 13 was now inconsistent with section 2(b) of the Charter – that is, the restriction on the freedom of expression that was entailed by the amended provision was no longer minimal. This ruling binds only the parties before the Tribunal, and does not have the same precedential value as a court decision. Tribunal members may reach a different conclusion in future cases, but if they choose to follow the reasoning of Tribunal member Hadjis, Parliament may feel the need to further amend the legislation in order to guide the direction of this legal development. For the full text of the Tribunal’s decision in Warman v Lemire, (2009 CHRT 26, September 2, 2009), visit: http://tinyurl.com/mmjrlg For a news article on reactions to the decision, see: http://tinyurl.com/konyrs Summary by: Janet Chong