By Deborah Gyapong
Canadian Catholic News

OTTAWA -- Catholics who fight for freedom of speech and of religion are applauding the recent tribunal decision that declared the Canadian Human Rights Act (CHRA) censorship provision unconstitutional.

"Freedom of religion includes the ability to express positions that are based on religious belief," said Catholic Civil Rights League executive director Joanne McGarry, on the Lemire decision. "We think this decision will help reinforce that point."

On September 2, Canadian Human Rights Tribunal (CHRT) member Athanasios Hadjis ruled that Section 13(1) and some other portions of the CHRA are "inconsistent with s. 2(b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression."

Section 13(1) says that material "likely to expose" various enumerated groups to hatred and contempt contravenes the CHRA. There is no defense for truth or intent since the Act merely looks at the effects on vulnerable minorities, even if there is no proof any damages have occurred.

The case involves Marc Lemire, a Toronto webmaster who ran a far-right Internet message board called Freedomsite.org. Lemire is the first person to break the CHRT's 100 per cent conviction rate in censorship cases referred to the tribunal by the Canadian Human Rights Commission (CHRC).

"The League is pleased with the impetus that this decision gives to removing or significantly revising Section 13," said McGarry. "While we reject the white supremacist, anti-Semitic and anti-immigrant opinion on the website in question, the same section of the code has also been used to penalize the expression of viewpoints based on religious beliefs, including the case against Catholic Insight magazine."

McGarry said similar provisions in provincial codes have been used against Calgary Bishop Fred Henry and against Alberta pastor Stephen Boissoin, who landed a hefty fine and a lifetime speech ban on anything disparaging against homosexuals, even in private e-mails, for a letter to an Alberta newspaper.

A commitment to free speech and freedom of religion is not always easy, McGarry said. "It's the tough case that put us to the test."

Unlike most other respondents who were often too poor to afford a lawyer, Lemire fought back, challenging the constitutionality of the Act. He and his legal team labored for six years, mostly in obscurity, until the high profile complaints against Maclean's columnist and bestselling author Mark Steyn and former Western Standard publisher Ezra Levant put a spotlight on abuses by both federal and provincial human rights commissions.

Many of the abuses came to light in Lemire's CHRT hearings, as the Commission refused to disclose documents. CHRC investigators testified under oath that they had joined racist and neo-Nazi groups like Stormfront under assumed names, and they posted anti-gay and anti-Jewish material themselves. In the March 25 Lemire hearing, it was revealed that someone logging on under the name of Jadewarr, a CHRC identity, had used a wireless internet connection belonging to a young woman who lived in a condo not far from the Commission's Ottawa office. Hadjis did not deal with procedural abuses in his decision.

Hadjis also found that Lemire had taken down the material before or immediately after the complaint was filed and had sought mediation. The complainant, an Ottawa lawyer and former CHRC investigator who has filed more than 40 per cent of all Section 13 complaints, refused him the opportunity.

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Hadjis found Lemire had contravened Section 13(1) in only one article that had hateful language about gays and blacks. But he said the "remedies" in the Act have become so punitive -- to the tune of tens of thousands of dollars -- that these punishments coupled with Section 13 violate the Charter rights. The original intent of the Act was to solve problems through mediation and remedies, but the addition of the higher awards have gone beyond what Hadjis believed the Supreme Court envisioned when they upheld the constitutionality of Section 13 in the 1990 Taylor decision.

Catholic Insight editor Father Alphonse de Valk, who spent $30,000 fighting a human rights complaint that was dismissed before reaching the tribunal stage, said Lemire, along with Levant and Steyn, have "done the nation a service."

"It was a just cause," he said. "I'm very happy that he won it."

Hadjis, however, is not a judge and does not have the authority to strike down the law as unconstitutional. Even though his decision is not binding on other tribunals, it is widely heralded as a victory for civil rights.

"I think it's a first step and I'm certainly looking for the Harper government to do something about this," de Valk said, noting that last year, University of Windsor law professor Richard Moon had also recommended scrapping Section 13 of the CHRA in the so-called Moon Report, commissioned by the CHRC.

Gwen Landolt, national vice president of REAL Women of Canada, said the Lemire decision "indicates the strength of public exposure and the pressure of public opinion."

"We're grateful that finally the problems with the commission are finally being publicly exposed," she said. The former Crown Attorney and pro-life Catholic has been objecting to the power and jurisdictions of appointed human rights commissions since 1989.

She said she was surprised by the Lemire decision and warned it would likely be appealed by either the CHRC or the federal government.

McGarry agreed. "There's also the possibility it will be dealt with where it should be dealt with and that's in Parliament," she said.

De Valk said he wants the Harper government to legislate change in the CHRA as soon as Parliament returns-before an election.

"If the Conservative government appeals it, I would think it would be a direct slap in the face to Catholics," he said.

But with election fever gripping Ottawa, McGarry wondered whether it would become an election issue. "I would like people to talk about it during any election campaign. I don't know how much willingness there would be among the political parties."

"I don't know how aware people are about the problem," she said.

In Catholic circles, however, awareness is growing. The Catholic Women's League (CWL) made a resolution at its annual national convention in August to urge the government to rescind Section 13 from the Act. Members of the 97,000-strong women's organization also plan to tell provincial legislators about their opposition to censorship provisions.

Freedom of expression is not the only problem Catholic leaders see with Human Rights Commissions. The bishop of Peterborough faces human rights complaints before the Ontario Human Rights Tribunal for dismissing a gay altar server who is living with a man he describes as his partner. The CCRL is also intervening in the appeal of the Christian Horizons case, in which the Ontario Human Rights Tribunal declared the evangelical charity's faith and morality code to be discriminatory.

Landolt said she thinks the economy will dominate the next election even if freedom of speech and religion become an issue. She criticized human rights commissions for "trying to mould public opinion to a left-wing agenda" that would "fossilize thinking" in the 1960s.

Modern day thinking is "much more independent," she said.

-- Courtesy of Canadian Catholic News. Please do not reprint without permission.

September 17/2009