By Colin Perkel, The Canadian Press
OAKVILLE, Ont. – Parts of Canada’s human-rights act are a punitive and gross infringement on free expression that have no place in a democratic country that prides itself on freedom, a tribunal heard Wednesday.The legislation, which targets hate on the Internet, has put Canada among a “sorry group of nations” that stifle dissent for political reasons, its critics told the hearing.But supporters, along with the attorney general of Canada, argued the Canadian Human Rights Act is necessary to protect vulnerable minorities.
The Canadian Human Rights Tribunal is trying to decide whether Toronto resident Marc Lemire is responsible for material posted on an electronic bulletin board frequented by far-right users.The postings mocked Jews, blacks, Italians, gays and others.”The law should not concern itself with jokes and trivia,” lawyer Barbara Kulaszka, who represents Lemire, said in closing arguments.”Jokes hurt, too,” countered Athanasios Hadjis, who is chairing the tribunal.”This is a law that has gone mad,” Kulaszka replied. “There is no balance in this law whatsoever.”
The Canadian Human Rights Commission is asking Hadjis to issue a cease and desist order against Lemire and fine him about $6,000.Lemire is arguing that sections of the decades-old act under which the complaint against him was launched are unconstitutional.Section 13, initially aimed at telephone hate messages and upheld by the Supreme Court of Canada, was extended in 2001 to cover Internet communications.Lawyer Steven Skurka, acting for the Friends of the Simon Wiesenthal Centre for Holocaust Studies, argued the case is not about suppression of legitimate dissent.
The act targets only the most “poisoned” forms of expression that have no redeeming value and cause enduring harm to its victims and society at large, he said.”We support the right to offend and to be offensive,” Skurka said. “(But) hate propaganda does nothing to advance freedom of expression.”Lemire’s freedomsite.org website, started in 1995, became the subject of a hearing after Ottawa lawyer Richard Warman complained that postings on the site promoted hatred and could subject a group to contempt.Lemire, 32, shut down the message board on Jan. 1, 2004 – even before he received the complaint – but the case has continued to wind its way through tribunal hearings.
That proves, his lawyers said, that legislation intended to be remedial has become punitive and the process abusive.Critics of the act also maintained the tribunal has never dismissed a complaint on which it has ruled.Earlier in the hearing, Hadjis mused the legislation may be outmoded in an Internet age in which almost anyone can post messages and any complaint can spawn a lengthy and cumbersome process .But Marvin Kurz, speaking for the Jewish human-rights group B’nai Brith, said the Internet has not changed the harm caused by hate propaganda. Nor has it minimized the need to protect minorities from exposure to contempt and hatred, he said.
Paul Fromm, of the Canadian Association of Free Expression, called the legislation “excessive.”Those who have fallen afoul of Section 13 – Warman has filed most of the complaints – have been poor uneducated whites who hold far right-wing views and lack sophistication in making their opinions heard, Fromm told the hearing.”We should all have an equal right to express ourselves,” Fromm argued. “That is what the Internet has enabled us to do.”Canada is acting like China by “slowly gagging” dissent, he said.
“Any regime that condemns jokes is pretty far gone.”Critics have also warned that mainstream media outlets, some of whom have decried the legislation, could easily become ensnared by the act .Simon Fothergill, lawyer for the federal government, urged Hadjis to focus on the merits of the complaint and to stay away from weighing in on the legislation, while a lawyer for the rights commission said the act captures only the “most extreme forms of speech.”
Hadjis reserved his decision.