Warman v. Marc Lemire, 2009 CHRT 26

Canadian Human Rights Tribunal

[1] The Complainant, Richard Warman, claims that the Respondent, Marc Lemire, has repeatedly communicated, or caused to be communicated, hate messages over the Internet, in breach of s. 13 of the Canadian Human Rights Act. Mr. Warman alleges that these messages discriminate against persons or groups of persons on the basis of their religion, race, colour, national or ethnic origin, and sexual orientation, because the matter exposes Italians, Mexicans, Puerto Ricans, Haitians, francophones, Blacks, First Nation persons, East Asians, non-Whites, Jews, and homosexuals, to hatred or contempt, within the meaning of s. 13(1) of the Act.

[2] Mr. Lemire denies these allegations. He asserts that he did not communicate or cause to be communicated most of the impugned messages, and that, in any event, none of the messages are discriminatory.

[3] Furthermore, Mr. Lemire has made a motion to have s. 13 of the Act, and its related remedial provisions (s. 54(1) and s. 54(1.1)), declared inoperative under s. 24(1) and s. 52(1) of the Canadian Charter of Rights and Freedoms. He alleges that these provisions of the Act violate the freedoms of conscience and religion, as well as the freedoms of thought, belief, opinion, and expression, guaranteed by ss. 2(a) and 2(b) of the Charter. Mr. Lemire also claims that s. 13 violates the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, which are guaranteed by s. 7 of the Charter. He argues that none of these contraventions can be justified under s. 1 of the Charter.

[4] Mr. Lemire additionally contends that s. 13 and ss. 54(1) and 54(1.1) of the Act similarly contravene ss. 1(d), 1(f), and 2 of the Canadian Bill of Rights.

[5] Apart from Mr. Warman, Mr. Lemire, and the Commission, a number of other parties participated at the hearing into this complaint. The Attorney General of Canada exercised his right, pursuant to s. 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, to participate and adduce evidence at the hearing, as well as to make submissions, in respect of the constitutional question. In addition, the Canadian Association for Free Expression Inc. (CAFE), the Canadian Free Speech League (CFSL), along with a group comprised jointly of the League of Human Rights of B’Nai Brith Canada, the Canadian Jewish Congress (CJC), and the Friends of Simon Wiesenthal Center of Holocaust Studies were granted interested party status in the present case, solely with respect to the issue of the constitutionality of s. 13 and any related provisions of the Act.

[6] In the present decision, I will be reviewing s. 13, and its interpretation by the Tribunal and the courts, before proceeding to analyze the impugned material, where I ultimately determine that Mr. Lemire breached s. 13 in only one of the instances alleged against him. I then examine Mr. Lemire’s challenge to the constitutionality of s. 13 and ss. 54(1) and 54(1.1) where I find that these provisions are inconsistent with s. 2(b) of the Charter and that the restrictions imposed on the freedom of thought, belief, opinion and expression are not a reasonable limit within the meaning of s. 1 of the Charter.