Warman v. Marc Lemire

Warman v. Marc Lemire

Tribunal found only one impugned item met s.13: the 'AIDS Secrets' article posted in the Controversial Columnists section (respondent as webmaster caused its communication); other allegations failed for lack of evidence of control, ownership or knowledge (JRBooksonline, Stormfront poem, third-party message board posts); Tribunal concluded that s.13(1) read with ss.54(1) and 54(1.1) unjustifiably infringes Charter s.2(b) because the addition of penal consequences and practical application undermined the conciliatory remedial regime the Supreme Court relied on, so the provisions cannot be applied in this proceeding.

Citation
2009 CHRT 26
Parties
Complainant: Richard Warman; Commission: Canadian Human Rights Commission; Respondent: Marc Lemire; Interested Party: Attorney General of Canada; Interested Party: Canadian Association for Free Expression; Interested Party: Canadian Free Speech League; Interested Party: Canadian Jewish Congress; Interested Party: Friends of Simon Wiesenthal Center for Holocaust Studies; Interested Party: League for Human Rights of B'nai Brith
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
2 September 2009
Procedural Posture
Human Rights Complaint Under the Canadian Human Rights Act / Hearing and Final Decision (tribunal)
Outcome
Complaint partially substantiated: breach of s.13 found only for the 'AIDS Secrets' article posted on Freedomsite.org; no other impugned materials proven to have been communicated or caused by respondent; Tribunal finds s.13(1) together with ss.54(1) and 54(1.1) inconsistent with Charter s.2(b) and not justified...
Legal Topics
Hate Speech, Section 13 CHRA, Freedom of Expression S.2(b) Charter, Oakes Proportionality, Internet Intermediary Liability, Message Board Operator Liability, Penalty Provisions S.54 CHRA, Holocaust Denial, Sexual Orientation Discrimination
Source Language
English
Human Rights Law Constitutional Law Administrative Law Internet Law Hate Speech Section 13 CHRA Freedom of Expression S.2(b) Charter Oakes Proportionality +5 more

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Parties

Richard Warman

Complainant

Canadian Human Rights Commission

Commission

Marc Lemire

Respondent

Attorney General of Canada

Interested Party

Canadian Association for Free Expression

Interested Party

Canadian Free Speech League

Interested Party

Canadian Jewish Congress

Interested Party

Friends of Simon Wiesenthal Center for Holocaust Studies

Interested Party

League for Human Rights of B'nai Brith

Interested Party

Procedural Posture

Human Rights Complaint Under the Canadian Human Rights Act / Hearing and Final Decision (tribunal)

Legal Issues

  1. 1 Whether respondent communicated or caused to be communicated hate messages within meaning of s.13 CHRA
  2. 2 Whether impugned materials were likely to expose identifiable groups to hatred or contempt
  3. 3 Whether website ownership or webmaster status establishes liability for third-party postings

Ratio Decidendi

Tribunal found only one impugned item met s.13: the 'AIDS Secrets' article posted in the Controversial Columnists section (respondent as webmaster caused its communication); other allegations failed for lack of evidence of control, ownership or knowledge (JRBooksonline, Stormfront poem, third-party message board posts); Tribunal concluded that s.13(1) read with ss.54(1) and 54(1.1) unjustifiably infringes Charter s.2(b) because the addition of penal consequences and practical application undermined the conciliatory remedial regime the Supreme Court relied on, so the provisions cannot be applied in this proceeding.

Court Disposition

Complaint partially substantiated: breach of s.13 found only for the 'AIDS Secrets' article posted on Freedomsite.org; no other impugned materials proven to have been communicated or caused by respondent; Tribunal finds s.13(1) together with ss.54(1) and 54(1.1) inconsistent with Charter s.2(b) and not justified...