2012 FC 1162, 2012 FC 1162

T-1640-09 2012 FC 1162 Canadian Human Rights Commission ( Applicant ) v. Richard Warman, the Attorney General of Canada and Marc Lemire ( Respondents ) and British Columbia Civil Liberties Association, Canadian Civil Liberties Association, Canadian Association for Free Expression Inc., Canadian Free Speech League, African Canadian Legal Clinic, League for Human Rights of B’nai Brith Canada, Canadian Jewish Congress and Friends of Simon Wiesenthal Centre For Holocaust Studies ( Interveners ) Indexed as: Canada (Canadian Human Rights Commission) v.

Warman Federal Court, Mosley J.—Toronto, December 13, 2011; Ottawa, October 2, 2012. Editor’s Note: This decision has been affirmed in part on appeal (A-456-12, 2014 FCA 18 ). The reasons for judgment, handed down January 31, 2014, will be published in the Federal Courts Reports .

Human Rights — Judicial review of Canadian Human Rights Tribunal decision determining that respondent Lemire contravening Canadian Human Rights Act (CHRA), s. 13 by communicating hate messages over Internet, but declining to issue remedial order — Tribunal finding that restrictions imposed by CHRA, ss. 13(1) , 54(1) , 54(1.1) inconsistent with Canadian Charter of Rights and Freedoms, s. 2(b) , not saved under

section 1 thereof — Tribunal herein erring in focusing its attention on Canadian Human Rights Commission’s administration of statute — Tribunal having no jurisdiction over Commission’s exercise of discretion — Proper way of challenging Commission’s decision in respect of such matters is through judicial review — Constitutionality of CHRA, s. 13 confirmed by Supreme Court of Canada in Canada (Human Rights Commission) v.

Taylor — That decision still binding — Findings therein as to objective, rational connection still applicable — As to minimal impairment, while penalty provisions in CHRA, ss. 54(1)(c), 54(1.1) fundamentally altering nature of CHRA, s. 13 process, this conclusion not applying to regime as a whole — CHRA, s. 13 minimally impairing freedom of expression — Appropriate remedy herein severance of offending provisions (i.e. CHRA, ss. 54(1)(c), 54(1.1)) from CHRA, s. 13 — Application allowed.

Constitutional Law — Charter of Rights — Fundamental Freedoms —Limitation clause — Whether Canadian Human Rights Act, ss. 13(1), 54(1), (1.1) violating Charter, s. 2(b) — If so, whether saved by Charter, s. 1 — Constitutionality of CHRA, s. 13(1) confirmed by Supreme Court of Canada in Canada (Human Rights Commission) v.

Taylor — That decision still binding — Findings therein as to objective, rational connection still applicable — As to minimal impairment, while penalty provisions in CHRA , ss. 54(1) (c), 54(1.1) fundamentally altering nature of CHRA, s. 13 process, this conclusion not applying to regime as a whole — CHRA, s. 13 minimally impairing freedom of expression — Provisions thus justifiable under Charter, s. 1 –– Appropriate remedy herein severance of offending provisions (i.e. CHRA, ss. 54(1)(c), 54(1.1)) from CHRA, s. 13.

This was an application for judicial review of a decision of the Canadian Human Rights Tribunal (Tribunal) brought by the Canadian Human Rights Commission (Commission). The respondent Warman filed a complaint with the Commission alleging that the respondent Lemire had communicated or caused to be communicated hate messages over the Internet in breach of

section 13 of the Canadian Human Rights Act (CHRA). He alleged that these messages discriminated against persons or groups of persons on the basis of their religion, race, color, national or ethnic origin and sexual orientation, because the matter exposed them to hatred or contempt. Lemire brought a motion to have

section 13 and the related remedial provisions in subsections 54(1) and (1.1) of the Act found to be in breach of paragraphs 2(

a) and (

b) and

section 7 of the Canadian Charter of Rights and Freedom ( Charter ). The Tribunal determined that the respondent Lemire contravened s. 13 of the CHRA . However, it declined to issue any remedial order on the ground that the restrictions imposed by subsections 13(1), 54(1) and 54(1.1) were inconsistent with paragraph 2(

b) of the Charter and did not constitute a reasonable limit within the meaning of

section 1 of the Charter. The Commission sought declarations that the Tribunal erred in law in refusing to apply subsection 13(1) and in declining to exercise its discretion under paragraphs 54(1)(

a) and/or (

b) of the Act . The principal issues were (1) whether it was appropriate for the Tribunal to consider the manner by which the Commission exercises its statutory mandate in determining whether to apply

section 13 of the Act , (2) whether

section 13 and subsections 54(1) and (1.1) of the Act violate paragraph 2(

b) of the Charter and if so, whether they are saved by

section 1 of the Charter; and (3) the appropriate remedy, if

section 13, and subsections 54(1) and (1.1) of the Act, read together, were found to be unconstitutional. Held , the application should be allowed. The Tribunal erred in focusing its attention on the Commission’s administration of the statute in this case, a subject beyond its mandate and the scope of its authority. The CHRA establishes two distinct institutions, each of which has a particular role as described by the statute. It sets out a complete mechanism for dealing with human rights complaints. Central to this mechanism is the Commission.

Under the scheme of the Act, the Commission is the body empowered to accept, manage and process complaints of discriminatory practices. The Tribunal has no statutory mandate under the Act with respect to the administration of the Commission, except to inquire into the complaints when a request is

made by the Commission to do so. The Tribunal has no jurisdiction over the exercise of the Commission’s discretion, inter alia, ofrejecting or referring a complaint to the Tribunal. The proper way to challenge a Commission decision in respect of such matters isthrough judicial review by the Federal Court. The hearing herein went beyond the scope of the Tribunal’s mandate to determine the factual and legal issues and became an inquiry intothe manner in which the complainant and the Commission conducted themselves in relation to the complaint.

The Tribunal stepped overthe line of its proper role, the adjudication of the complaint, and assumed the role the Court would have upon an application for judicialreview of the actions or decisions of the Commission. As to the constitutionality of subsection 13(1) of the CHRA, it was confirmed by the Supreme Court of Canada in Canada (HumanRights Commission) v. Taylor. That decision remained binding unless it was no longer precedential authority due to changed factual andlegal circumstances since it was decided. The objective of

section 13, the suppression of hate speech and the promotion of equality,continues to be substantial and pressing. The conclusion in Taylor on rational connection to the legislative objective also still applies.With respect to minimal impairment, the addition of the penalty provisions under paragraph 54(1)(

c) and subsection 54 (1.1) hasfundamentally altered the nature of the

section 13 process and brought it uncomfortably close to the state’s ultimate control measure,criminal prosecution. The penalty is inherently punitive. The factors set out in subsection 54(1.1) are similar to those which a criminalcourt would consider in determining the fine to be imposed on someone found guilty of an offence. The

section 13 regime is no longerexclusively remedial. However, this does not apply to the regime as whole, which can be preserved by severance of the problematicaspects.

Section 13 minimally impairs freedom of expression. Considering the deference owed to Parliament, considering the minimal value hatespeech possesses and considering the context and the objective of the Act, the minimal harm caused by

section 13 to freedom ofexpression is far outweighed by the benefit it provides to vulnerable groups and to the promotion of equality. Sections 13 and 54 of theAct are justifiable in a free and democratic society and the Tribunal erred in declining to apply the legislation. In light of the finding that the penalty provisions in paragraph 54(1)(

c) and subsection 54(1.1) cannot withstand constitutional scrutiny,the appropriate remedy to apply was severance. Applying this doctrine required that the extent of the inconsistency between the statute inquestion and the requirements of the Constitution be defined. In this case, paragraph 54(1)(

c) and subsection 54(1.1) could readily besevered from subsection 13(1). These provisions were not part of the statute when it was considered in Taylor. The offending parts arenot inextricably bound up with that part of the legislation held to be valid in Taylor. Since the Tribunal found the publication of the

article to be in breach of

section 13, the adjudicator should have issued a declaration tothat effect and should have proceeded to consider ordering a remedy under paragraphs 54(1)(

a) and/or (b). The adjudicator erred inadopting an all or nothing approach to the constitutional remedy. The balance of

section 13 could stand without applying the laterenacted punitive provisions. STATUTES AND REGULATIONS CITED

An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian HumanRights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, S.C. 1998, c. 9,ss. 27, 28. Anti-terrorism Act, S.C. 2001, c. 41, s. 88. Bill C-304,

An Act to amend the Canadian Human Rights Act (protecting freedom), 1st Sess., 41st Parl., 2011 (3rd reading, June 6,2012). Canadian Bill of Rights, R.S.C., 1985, Appendix III. Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(a),(b), 7, 24(1). Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2, 3, 13, 44(1),(2),(3), 47, 50–54. Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 52(1), 101. Customs Act, R.S.C., 1985 (2nd Supp.), c. 1. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 18.1, 57. Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 14(1)(b). CASES CITED followed: Canada (Human Rights Commission) v. Taylor, (SCC), [1990] 3 S.C.R. 892, (1990), 75 D.L.R. (4th) 577. applied: The Queen v. Oakes, (SCC), [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200. distinguished: Martineau v. M.N.R., 2004 SCC 81, [2004] 3 S.C.R. 737, 247 D.L.R. (4th) 577.

considered: Whatcott v. Saskatchewan (Human Rights Tribunal), 2010 SKCA 26 , revd in part sub nom. Saskatchewan (Human RightsCommission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; McAleer v. Canada (Human Rights Commission) , 175D.L.R. (4th) 766, 66 C.H.R.R. 225 (F.C.A.); Air Canada Pilots Association v. Kelly, 2011 FC 120, [2012] 4 F.C.R. 277, 88 C.C.E.L.(3d) 210; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, 320 D.L.R. (4th) 25; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1S.C.R. 190, 329 N.B.R. (2d) 1; Mugesera v.

Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, 254D.L.R. (4th) 200; Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863, (1986), 29 D.L.R. (4th) 161; Cooper v. Canada(Human Rights Commission), (SCC), [1996] 3 S.C.R. 854, (1996), 140 D.L.R. (4th) 193; Perka et al. v. The Queen, (SCC), [1984] 2 S.C.R. 232, (1984), 13 D.L.R. (4th) 1; Canadian Egg Marketing Agency v. Richardson, (SCC), [1998] 3 S.C.R. 157, (1998), 223 A.R. 201; R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697, (1990), 114 A.R.81; Schnell v. Machiavelli and Associates Emprize Inc., (C.H.R.T.); R. v.

Wigglesworth, (SCC),[1987] 2 S.C.R. 541, (1987), 45 D.L.R. (4th) 235; Warman v. Kouba, 2006 CHRT 50; Schachter v. Canada, (SCC),[1992] 2 S.C.R. 679, (1992), 93 D.L.R. (4th) 1; Alberta, Attorney-General for v. Attorney-General for Canada, (UKJCPC), [1947] A.C. 503 (P.C.). referred to: Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, 347 D.L.R. (4th) 385; Warman v. Harrison, 2006 CHRT 30; Blencoe v. BritishColumbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, 190 D.L.R. (4th) 513; Cuddy Chicks Ltd. v.

Ontario (LabourRelations Board), (SCC), [1991] 2 S.C.R. 5, (1991), 81 D.L.R. (4th) 121; Nova Scotia (Workers’ Compensation Board)v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, 217 N.S.R. (2d) 301; Smith v.Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, 328 D.L.R. (4th) 1; Celgene Corp. v. Canada (Attorney General), 2011 SCC 1,[2011] 1 S.C.R. 3, 327 D.L.R. (4th) 513; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53,[2011] 3 S.C.R. 471; Tranchemontagne v.

Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, 266D.L.R. (4th) 287; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174D.L.R. (4th) 193; Sam Lévy & Associés Inc. v. Mayrand, 2005 FC 702, [2006] 2 F.C.R. 543, 19 C.B.R. (5th) 99, affd 2006 FCA 205, 58Admin. L.R. (4th) 255, leave to appeal to S.C.C. refused, [2006] 2 S.C.R. xi; Prentice v. Canada, 2005 FCA 395, [2006] 3 F.C.R. 135,264 D.L.R. (4th) 742, leave to appeal to S.C.C. refused, [2006] 1 S.C.R. xiii; Eldridge v.

British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624, (1997), 151 D.L.R. (4th) 577; Thomson v. Alberta (Transportation and Safety Board), 2003ABCA 256, 330 A.R. 262, 232 D.L.R. (4th) 237, leave to appeal to S.C.C. refused, [2004] 1 S.C.R. xv; Little Sisters Book and ArtEmporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, 193 D.L.R. (4th) 193; MacKay v. Manitoba, (SCC), [1989] 2 S.C.R. 357, (1989), 61 D.L.R. (4th) 385; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, (1995), 127 D.L.R. (4th) 1; Rocket v.

Royal College of Dental Surgeons of Ontario, (SCC), [1990] 2 S.C.R. 232, (1990), 71 D.L.R. (4th) 68; Reference re Upper Churchill Water Rights Reversion Act, (SCC), [1984] 1 S.C.R. 297, 47 Nfld. & P.E.I.R. 125; Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1S.C.R. 927, (1989), 58 D.L.R. (4th) 577; Citron v. Zundel, (C.H.R.T.); Ross v. New Brunswick School District No.15, (SCC), [1996] 1 S.C.R. 825, (1996), 133 D.L.R. (4th) 1; Canada (Human Rights Commission) v. Winnicki, 2005FC 1493, [2006] 3 F.C.R. 446; Black v.

Breeden, 2010 ONCA 547, 102 O.R. (3d) 748, 321 D.L.R. (4th) 659; Barrick Gold Corp. v.Lopehandia, , 71 O.R. (3d) 416, 239 D.L.R. (4th) 577 (C.A.); Alberta v. Hutterian Brethren of Wilson Colony, 2009SCC 37, [2009] 2 S.C.R. 567, 460 A.R. 1; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, 281D.L.R. (4th) 589; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713, (1986), 35 D.L.R. (4th) 1; Elmasry v.Roger’s Publishing Ltd., 2008 BCHRT 378, 64 C.H.R.R. D/509; Owens v. Saskatchewan (Human Rights Commission), 2006 SKCA 41, [2006] 7 W.W.R. 433; Boissoin v.

Lund, 2009 ABQB 592 ; Ontario Human Rights Commission and O’Malley v.Simpsons-Sears Ltd. et al., (SCC), [1985] 2 S.C.R. 536, (1985), 52 O.R. (2d) 799; Haig v. Canada , 9O.R. (3d) 495, 94 D.L.R. (4th) 1. AUTHORS CITED Akdeniz, Yaman. “Governing Racist Content on the Internet: National and International Responses” (2007), 56 U.N.B.L.J. 103. Beaudoin, Gérald A. and Pierre Thibault. La Constitution du Canada, 3rd ed. Montréal: Wilson & Lafleur, 2004. Brun, Henri et al. Droit constitutionnel, 5th ed. Cowansville, Que.: Y. Blais, 2008.

Bryden, Philip and William Black, “Mediation as a Tool for Resolving Human Rights Disputes: An Evaluation of the B.C. HumanRights Commission’s Early Mediation Project” (2004), 37 U.B.C. L. Rev. 73. Canadian Human Rights Commission. Annual Report 2006.Ottawa: Public Works and Government Services Canada, 2007. Canadian Human Rights Commission. Report to the Canadian Human Rights Commission Concerning

Section 13 of the CanadianHuman Rights Act and the Regulation of Hate Speech on the Internet, prepared by Richard Moon, October 2008. Canadian Human Rights Commission. Special Report to Parliament: Freedom of Expression and Freedom From Hate in the InternetAge. Ottawa: Public Works and Government Services Canada, 2009. Gosnell, Chris. “Hate Speech on the Internet: A Question of Context” (1998), 23 Queen’s L.J. 369. Hogg, Peter W. Constitutional Law of Canada, 5th ed. loose-leaf. Toronto: Carswell, 2007. McNamara, Lawrence. “Tackling Racial Hatred: Conciliation, Reconciliation and Football” (2000), 6(2) Austl. J.

H. R. 5. Sharpe, Robert J. and Kent Roach. The Charter of Rights and Freedoms, 4th ed. Toronto: Irwin Law, 2009.

APPLICATION for judicial review of a decision of the Canadian Human Rights Tribunal ( 2009 CHRT 26 ) finding that the respondent Marc Levine contravened

section 13 of the Canadian Human Rights Act , but declining to issue any remedial order. Application allowed. APPEARANCES S. Margot Blight for applicant. Richard Warman on his own behalf. Barbara Kulaszka for respondent Marc Lemire. No one appearing for respondent Attorney General of Canada. Jason Gratl for intervener British Columbia Civil Liberties Association. Andrew K. Lokan and Jodi Martin for intervener Canadian Civil Liberties Association. Gerald E. Langlois for intervener Canadian Association for Free Expression Inc. Douglas H. Christie for intervener Canadian Free Speech League.

Moya Teklu and Ed Morgan for intervener African Canadian Legal Clinic. Marvin Kurz for intervener League for Human Rights of B’Nai Brith Canada. No one appearing for intervener Canadian Jewish Congress. Steven Skurka for intervener Friends of Simon Wiesenthal Centre for Holocaust Studies. SOLICITORS OF RECORD Borden Ladner Gervais LLP , Toronto, for applicant. Barbara Kulaszka , Brighton, Ontario, for respondent Marc Lemire. Gratl & Company , Vancouver, for intervener British Columbia Civil Liberties Association. Paliare Roland Rosenberg Rothstein LLP , Toronto, for intervener Canada Civil Liberties Association.

Charron Langlois LLP , Hawkesbury, Ontario, for intervener Canadian Association for Free Expression Inc. Douglas H. Christie , Victoria, for intervener Canadian Free Speech League. African Legal Clinic , Toronto, for intervener African Canadian Legal Clinic. Dale, Streiman & Kurz LLP , Brampton, Ontario for intervener League for Human Rights B’Nai Brith Canada. Steven Skurka , Toronto, for intervener Friends of Simon Wiesenthal Centre for Holocaust Studies.

The following are the reasons for judgment and judgment rendered in English by Mosley J.: OVERVIEW [ 1 ] This is an application for judicial review of a decision of the Canadian Human Rights Tribunal [Tribunal] [ Warman v. Lemire , 2009 CHRT 26 ] brought by the Canadian Human Rights Commission [Commission] under

section 18.1 of the Federal Courts Act , R.S.C., 1985, c. F-7. [ 2 ] In the September 2, 2009 decision, the Tribunal determined that the respondent Marc Lemire contravened

section 13 of the Canadian Human Rights Act , R.S.C., 1985, c. H-6 (hereinafter the CHRA or the Act) by posting an

article on a website. The Tribunal declined to issue any remedial order against Mr. Lemire on the ground that the restrictions imposed by subsection 13(1) and subsections 54(1) and (1.1) of the Act are inconsistent with paragraph 2(

b) of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter) and do not constitute a reasonable limit within the meaning of

section 1 of the Charter. [ 3 ] The Commission seeks declarations that the Tribunal erred in law in refusing to apply subsection 13(1) and in declining to exercise its discretion under paragraphs 54(1) (

a) and/or (

b) of the Act ; and seeks orders to set aside the Tribunal’s conclusions to the extent that they are inconsistent with the declarations sought and to refer the matter back to the Tribunal for a determination with respect to the remedy. [ 4 ] In these proceedings, Mr. Lemire served a notice of constitutional question on the Attorney General of Canada and the attorneys general of each province in accordance with

section 57 of the Federal Courts Act . The notice requests a declaration that subsections 13(1) , 54(1) and 54(1.1) of the CHRA are of no force or effect pursuant to subsection 24(1) ( sic ) [of the Charter ] and subsection 52(1) of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Constitution Act).

[5] The constitutionality of subsection 13(1) of the CHRA was confirmed by a majority of the Supreme Court of Canada in Canada(Human Rights Commission) v. Taylor, (SCC), [1990] 3 S.C.R. 892 (Taylor). This Court is bound by that decision unlessthere are grounds to distinguish the present case from the precedential authority of that decision. Barring such grounds, the Court mustfollow Taylor. In doing so, the Court may set out such reasons that indicate that the precedent may be problematic in the presentenvironment. It is for the Supreme Court itself to determine whether Taylor is to be overturned: Canada v.

Craig, 2012 SCC 43, [2012]2 S.C.R. 489, at paragraph 21. That question is presently before the Supreme Court in an appeal from the decision of the SaskatchewanCourt of Appeal in Whatcott v. Saskatchewan (Human Rights Tribunal), 2010 SKCA 26 [Whatcott], leave to appeal grantedOctober 28, 2010, [2010] 2 S.C.R. viii [decision now rendered in 2013 SCC 11, [2013] 1 S.C.R. 467]. In Whatcott, the constitutionalquestions stated address whether paragraph 14(1)(

b) of the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, infringes paragraph2(

a) of the Charter and, if so, whether it is saved under

section 1 of the Canadian Charter of Rights and Freedoms. While the issues inthat matter concern provincial legislation, they are analogous to the matters raised in this case and the Saskatchewan Court of Appealconsidered itself bound by Taylor. [6] I take notice of the legislative fact that Bill C-304, entitled

An Act to amend the Canadian Human Rights Act (protectingfreedom) [1st Sess., 41st Parl., 2011], received third reading in the House of Commons on June 6, 2012. Among other things, the effectof the Bill would be to repeal

section 13. Under the terms of the Bill’s coming into force clause, the Act would be effective one yearafter receiving royal assent. At the time of writing, the Bill remained under consideration in the Senate [the Bill received royal assent onJune 26, 2013 (S.C. 2013, c. 37)]. This is of relevance in these proceedings only to a limited extent that I will discuss below. [7] For the reasons that follow, I find that the Tribunal was correct to decline to apply paragraph 54(1)(

c) and subsection 54(1.1) ofthe Act and declare that they are of no force or effect. However, I find that the Tribunal erred in failing to apply

section 13 andparagraphs 54(1)(

a) and (

b) of the Act. Consequently, the application by the Commission is granted and the matter is remitted to theTribunal to issue a declaration that the

article posted by Mr. Lemire was in contravention of

section 13 and to exercise its jurisdictionunder paragraph 54(1)(

a) or (

b) of the Act to consider the issuance of a remedial order against Mr. Lemire. BACKGROUND [8] On November 24, 2003, the respondent Richard Warman filed a complaint with the Commission alleging that Mr. Lemire hadcommunicated or caused to be communicated hate messages over the Internet in breach of

section 13 of the CHRA. He alleged that thesemessages discriminated against persons or groups of persons on the basis of their religion, race, color, national or ethnic origin andsexual orientation, because the matter exposed them to hatred or contempt. [9] Initially the complaint cited the content of messages posted on the website Freedomsite.org and alleged that Mr. Lemire was theowner and webmaster of that site. The complaint also named one Craig Harrison as a respondent. Mr. Harrison was alleged to haveposted a large number of messages on the site in 2002 and 2003. The allegations against Mr.

Harrison were referred to the Tribunalseparately and a decision was issued by the Tribunal on August 15, 2006 finding that his messages were in breach of

section 13: Warmanv. Harrison, 2006 CHRT 30. [10] Mr. Lemire received notice of Mr. Warman’s November 24, 2003 complaint from the Commission in late March 2004. Inresponding to the Commission, through his counsel, on April 23, 2004, Mr. Lemire acknowledged that he was the webmaster and ownerof the Freedomsite.org website and stated that he had removed the message board from the site prior to receiving notification of Mr.Warman’s complaint. The message board, operated from 1999–2003, was a forum for discussions at the website. Visitors could accessthe content as “guests”. Only registered users were allowed to post messages on the board. An

article on the Freedomsite.org websitereferred to in the complaint was removed after the complaint had been filed. [11] Subsequent to the filing of the complaint, additional allegedly offending material was also found by Mr. Warman on the websitesJRBooksonline.com and Stormfront.org and referred to the Commission investigator in September 2004. This material was included inthe investigation report recommending referral to the Tribunal in April 2005 as being linked to Mr. Lemire. In a joint statement ofparticulars dated December 7, 2005, Mr. Warman and the Commission alleged that Mr.

Lemire communicated, or caused to becommunicated, material observed on these websites in October 2004. [12] At the hearing, Mr. Lemire denied the allegations in part on the ground that he had not communicated or caused to becommunicated most of the impugned messages. In particular, while he acknowledged, through counsel, having participated in thecreation of JRBooksonline.com, he denied having knowledge of or being responsible for any of the content of that website. With regardto material on Stormfront.org, Mr.

Lemire argued that the Commission had not established that he had posted the messages and, in thealternative, that it was not discriminatory. [13] Mr. Lemire brought a motion to have

section 13 and the related remedial provisions in subsections 54(1) and (1.1) of the Actfound to be in breach of paragraphs 2(

a) and (

b) and

section 7 and not saved by

section 1 of the Charter. He also cited the Canadian Billof Rights, R.S.C., 1985, Appendix III. The Attorney General of Canada exercised his right under

section 57 of the Federal Courts Act toparticipate and to adduce evidence at the hearing in respect of the constitutional questions. Several additional interested parties weregranted status to participate. [14] Extensive evidentiary hearings were conducted by the Tribunal between January 29, 2007 and March 25, 2008. Submissionswere presented in September 2008. The Tribunal rendered its decision on September 2, 2009: Warman v.

Lemire, 2009 CHRT 26 (thedecision). [15] On this application, motions for intervener status were granted for the African Canadian Legal Clinic (hereinafter the ACLC),League for Human Rights of the B’nai Brith (B’nai Brith), Canadian Jewish Congress (CJC), Friends of Simon Wiesenthal Centre forHolocaust Studies (SWC), Canadian Association for Free Expression (CAFE), Canadian Free Speech League (CFSL), Canadian CivilLiberties Association (CCLA), and British Columbia Civil Liberties Association (BCCLA). The respondent Attorney General of Canadaand the intervener CJC took no

part in the argument of this application. The position of B’nai Brith and SWC was jointly presented. CONSTITUTIONAL AND LEGISLATIVE FRAMEWORK

[ 16 ] Subsections 24(1) [of the Charter ] and 52(1) of the Constitution Act read as follows: [ Charter ] Enforcement of guaranteed rights and freedoms 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [Constitution Act] Primacy of Constitution of Canada 52.

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [ 17 ] The wording of subsection 13(1) of the CHRA has remained unchanged since the Supreme Court upheld the constitutionality of the predecessor enactment in Taylor : Hate messages 13.

(1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination. [ 18 ] When Taylor was decided, the remedial powers of the Tribunal were set out in sections 53 and 54 of the CHRA .

Section 53 authorized the Tribunal to order that a person cease a discriminatory practice and take measures to prevent its recurrence (at paragraph 53(2)( a )), make available to the victim the rights that had been denied (at paragraph 53(2)( b )), compensate the victim for wages lost and expenses (at paragraph 53(2)( c )), and compensate the victim for the costs and expenses of obtaining alternatives (at paragraph 53(2)( d )).

In addition, subsection 53(3) permitted the Tribunal, if the person had engaged in the discriminatory practice willfully or recklessly, or the victim had suffered, to order compensation not exceeding $5 000 to be paid. Subsection 53(4) authorized the Tribunal to order that premises and facilities be adapted to accommodate disabilities if reasonable.

Section 54 allowed the Tribunal to make only the orders listed in

section 53 and prohibited orders firing or evicting employees or tenants in good faith. [ 19 ] In 1998, Parliament enacted amendments to the Act , which, with the prior legislation, had the effect of conferring additional remedial powers on the Tribunal: S.C. 1998, c. 9, sections 27 and 28. A new paragraph 53(2)(

e) allowed the Tribunal to order compensation to victims in an amount not exceeding $20 000 for their pain and suffering. The amount which could be ordered paid under subsection 53(3) was raised from $5 000 to $20 000 and subsection 53(4) was added, permitting the compensation order to include interest. As well, a new paragraph 54(1) (

b) empowered the Tribunal to order, in addition to the remedial measures which were in place at the time Taylor was decided, compensation not exceeding $10 000 for a victim specifically identified in the communication that constituted a discriminatory practice; and a new paragraph 54(1)(

c) provided for a penalty of not more than $10 000. [ 20 ] Subsection 54(1.1), also added in 1998, set out the factors that the member or panel must take into account in deciding whether to order the person to pay the penalty at paragraph 54(1)( c ), such as the nature of the discriminatory practice, the intent of the person who engaged in the practice, any prior history, and ability to pay. [ 21 ] In 2001, Parliament further enacted, at subsection 13(2), that for greater certainty, discriminatory practices included communications via computers or the Internet: Anti-terrorism Act , S.C. 2001, c. 41,

section 88 ( Anti-terrorism Act ). [ 22 ] The relevant provisions of the CHRA as they read now are as follows: Purpose 2.

The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. … Prohibited grounds of discrimination 3.

(1) For all purposes of this Act , the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. Idem

(2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. … Hate messages 13.

(1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

Interpretation

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

Interpretation

(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter. … Report 44.

(1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation. Action on receipt of report

(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied (

a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or (

b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under

an Act of Parliament other than this Act , it shall refer the complainant to the appropriate authority. Idem

(3) On receipt of a report referred to in subsection (1), the Commission (

a) may request the Chairperson of the Tribunal to institute an inquiry under

section 49 into the complaint to which the report relates if the Commission is satisfied (

i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and (ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(

c) to ( e ); or

b) shall dismiss the complaint to which the report relates if it is satisfied (

i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(

c) to ( e ). … Appointment of conciliator 47.

(1) Subject to subsection (2), the Commission may, on the filing of a complaint, or if the complaint has not been (

a) settled in the course of investigation by an investigator, (

b) referred or dismissed under subsection 44(2) or (3) or paragraph 45(2)(

a) or 46(2)( a ), or (

c) settled after receipt by the parties of the notice referred to in subsection 44(4), … Conduct of inquiry 50.

(1) After due notice to the Commission, the complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations. Power to determine questions of law or fact

(2) In the course of hearing and determining any matter under inquiry, the member or panel may decide all questions of law or fact necessary to determining the matter. Additional powers

(3) In relation to a hearing of the inquiry, the member or panel may (

a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the complaint; (

b) administer oaths; (

c) subject to subsections (4) and (5), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law; (

d) lengthen or shorten any time limit established by the rules of procedure; and (

e) decide any procedural or evidentiary question arising during the hearing. Limitation in relation to evidence

(4) The member or panel may not admit or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

Conciliators as witnesses

(5) A conciliator appointed to settle the complaint is not a competent or compellable witness at the hearing. Witness fees

(6) Any person summoned to attend the hearing is entitled in the discretion of the member or panel to receive the same fees and allowances as those paid to persons summoned to attend before the Federal Court. Duty of Commission on appearing 51. In appearing at a hearing, presenting evidence and making representations, the Commission shall adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint. Hearing in public subject to confidentiality order 52.

(1) An inquiry shall be conducted in public, but the member or panel conducting the inquiry may, on application, take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of the inquiry if the member or panel is satisfied, during the inquiry or as a result of the inquiry being conducted in public, that (

a) there is a real and substantial risk that matters involving public security will be disclosed; (

b) there is a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; (

c) there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or (

d) there is a serious possibility that the life, liberty or security of a person will be endangered. Confidentiality of application

(2) If the member or panel considers it appropriate, the member or panel may take any measures and make any order that the member or panel considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (1). Complaint dismissed 53.

(1) At the conclusion of an inquiry, the member or panel conducting the inquiry shall dismiss the complaint if the member or panel finds that the complaint is not substantiated. Complaint substantiated

(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to

section 54 , make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate: (

a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including (

i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or (ii) making an application for approval and implementing a plan under

section 17; (

b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice; (

c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; (

d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and (

e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice. Special compensation

(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly. Interest

(4) Subject to the rules made under

section 48.9, an order to pay compensation under this

section may include an award of interest at a rate and for a period that the member or panel considers appropriate. Orders relating to hate messages 54.

(1) If a member or panel finds that a complaint related to a discriminatory practice described in

section 13 is substantiated, the member or panel may make only one or more of the following orders: (

a) an order containing terms referred to in paragraph 53(2)( a ); (

b) an order under subsection 53(3) to compensate a victim specifically identified in the communication that constituted the discriminatory practice; and (

c) an order to pay a penalty of not more than ten thousand dollars. Factors

(1.1) In deciding whether to order the person to pay the penalty, the member or panel shall take into account the following factors: (

a) the nature, circumstances, extent and gravity of the discriminatory practice; and (

b) the wilfulness or intent of the person who engaged in the discriminatory practice, any prior discriminatory practices that the person has engaged in and the person’s ability to pay the penalty.

Idem

(2) No order under subsection 53(2) may contain a term (

a) requiring the removal of an individual from a position if that individual accepted employment in that position ingood faith; or (

b) requiring the expulsion of an occupant from any premises or accommodation, if that occupant obtained suchpremises or accommodation in good faith. DECISION UNDER REVIEW [23] In the decision, the Tribunal found that the evidence did not establish that Mr. Lemire had actual or constructive knowledge ofthe content of Mr. Harrison’s posts on the Freedomsite.org message board notwithstanding Lemire’s role as administrator of the hostwebsite. Similarly, there was no evidence to establish a prima facie case that Mr. Lemire was aware of posts submitted by persons otherthan Mr.

Harrison that could constitute hate messages. These were posted on “threads” or strings of messages that Lemire did not directlycontrol or regularly visit. Mr. Lemire thus did not “communicate or cause to communicate” these messages within the meaning of section13 of the Act. [24] With regards to JRBooksonline.com, the Tribunal found that there was “insufficient evidence to establish, even on a prima faciebasis, that Mr. Lemire or a group of persons that includes him, communicated or caused to be communicated, the material found onJRBooksonline.com, within the meaning of s. 13” (at paragraph 47 of the decision).

Mr. Warman had alleged that the website wascontrolled by Mr. Lemire. The Tribunal found that the evidence showed that while Mr. Lemire had assisted with the registration of thedomain at the outset, a third party was the webmaster and the owner of that website and that there was no evidence that Mr. Lemirevisited the site or controlled its content. [25] Regarding a poem Mr. Lemire had posted on the website Stormfront.org, the Tribunal found that the content did not amount tohate speech as defined by the Supreme Court in Taylor. A number of other articles posted by Mr.

Lemire or of which he evidently hadactual or constructive knowledge, which were posted on his site, Freedomsite.org, were also found to not amount to hate speech as theyfell short of expressing the required level of detestation, calumny and vilification to meet the test. [26] Lemire had control over the posting of articles in a

section of the Freedomsite.org site which published the work of authorsdescribed as “Controversial Columnists”. Any member of the public could access that

section of the website. One of the articles postedthere by Lemire was entitled “AIDS Secrets”. The Tribunal found that the

article contained material that is likely to expose homosexualsand blacks to hatred or contempt (at paragraph 198 of the decision), and that Mr. Lemire repeatedly communicated the matter within themeaning of

section 13 (at paragraph 212 of the decision). The complaint was thus substantiated in respect of that one item. Mr. Lemirehas not sought judicial review of that finding. [27] Turning to the issue of the constitutionality of

section 13 of the Act, the Tribunal noted that the question had been determined bythe Supreme Court in Taylor. While the Supreme Court had found that subsection 13(1) infringed Charter paragraph 2(b), it was satisfiedthat the enactment satisfied both aspects of the test for justification under Charter

section 1: The Queen v. Oakes, (SCC),[1986] 1 S.C.R. 103 [Oakes] (a sufficiently important objective and a proportional measure to achieve it). [28] The Tribunal considered that it could revisit the question of

section 1 justification since the

section 13 regime had been modifiedby Parliament since Taylor. As such, the Tribunal found that Taylor was distinguishable from the case at hand. The scheme of the Acthad been changed from “an exclusively remedial, preventive and conciliatory” regime (at paragraph 279 of the decision) at the time ofTaylor to one that was quasi-penal.

In the Tribunal’s view, this stemmed largely from the amendments to the Act in 1998 mentioned atparagraph19 above, which authorized the Tribunal, in addition to issuing a cease and desist order and ordering that the victim becompensated up to the amount of now $20 000, to order the defendant to pay a penalty of up to $10 000 dollars having considered certainspecified factors (the new paragraph 54(1)(

c) of 1998). [29] The Tribunal found that the Commission’s practice of referring

section 13 complaints contributed to its finding that the nature ofthe scheme had changed since it was considered in Taylor (at paragraph 283 of the decision). The Tribunal expressed five concerns: first,that the Commission referred this complaint to the Tribunal even though most of the impugned material had already been removed fromthe Internet; second, that the Commission had referred other complaints to the Tribunal under

section 13 in similar circumstances; third,that it had declined the respondent’s request that a mediator or conciliator be appointed; fourth, that the Commission showed a lowsettlement rate for

section 13 complaints; and fifth, that the Commission did not generally offer to mediate

section 13 complaints. [30] Based on the legislative changes and concerns about the Commission’s practices, the Tribunal concluded that it was not boundby Taylor as it considered that the majority decision in that case had been premised on the assumption that the Commission’s proceduresfunctioned in a conciliatory manner as intended by the statute.

At paragraph 290 of the decision, the Tribunal stated: In my view, it is clear that Taylor’s confidence that the human rights process under the Act merely serves to prevent discrimination andcompensate victims hinged on the absence of any penal provision akin to the one now found at s. 54(1)(c), as well as on the belief thatthe process itself was not only structured, but actually functioned in as conciliatory manner as possible. The evidence before medemonstrates that the situation is not as the Court contemplated in both respects.

Thus, following the reasoning of Justice Dickson, at933, one can no longer say that the absence of intent in s. 13(1) “raises no problem of minimal impairment” and “does not impinge sodeleteriously upon the s. 2(

b) freedom of expression so as to make intolerable” the provision’s existence in a free and democratic society.On this basis, I find that the Oakes minimum impairment test has not been satisfied, and that s. 13(1) goes beyond what can be defendedas a reasonable limit on free expression under s. 1 of the Charter. [31] The combined effect of the legislative changes and of the Commission’s practices in administering the revised statute compelledthe conclusion, in the Tribunal’s view, that

section 13 in conjunction with paragraph 54(1)(

c) and subsection 54(1.1), no longerminimally impaired the right to freedom of speech and could not be saved under

section 1 of the Charter. In arriving at this conclusionthe Tribunal did not find that the compensation provisions in subsection 53(3) and paragraph 54(1)(b), the cease and desist order power

in paragraph 54(1)(a), or the other remedial measures in

section 53, were constitutionally unsound but focused exclusively on paragraph54(1)(

c) and subsection 54(1.1). [32] As noted at paragraph 21 above,

section 13 had been further amended in 2001 to insert the current version of subsection 13(2)which provides, for greater certainty, that the definition of discriminatory practices set out in subsection 13(1) applies to communicationsby means of a computer or group of interconnected or related computers, including the Internet. The impact of the Internet oncommunications contributed to the Tribunal’s Charter

section 1 analysis, but it did not rely on this amendment to reach its invalidityfinding. [33] Mr. Lemire had also alleged that

section 13 infringed on his freedom of conscience or religion, as guaranteed under paragraph2(

a) of the Charter. The Tribunal found that there was no evidence that the messages in question had been made as a matter of conscienceor religious practice. Arguments that sections 13 and 54 of the Act violated Mr. Lemire’s

section 7 Charter rights were held to beinadequate to support a constitutional remedy. The Tribunal found that the incidents cited by Mr. Lemire in support of these argumentsdid not bring his life, liberty or security of the person into question as required by the Supreme Court in Blencoe v. British Columbia(Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paragraph 47. Evidence that the Commission cooperated with lawenforcement agencies on some occasions was found to have no bearing on the circumstances of Mr. Lemire’s case. [34] Mr.

Lemire argued in addition that the Supreme Court’s findings in Taylor were based on fundamental factual and evidentiaryerrors. The Tribunal did not find it appropriate to revisit every aspect of the Supreme Court’s Charter analysis, noting at paragraph 221of the decision that it remained bound by most of the findings in Taylor and by McAleer v. Canada (Human Rights Commission) , 175 D.L.R. (4th) 766 (F.C.A.) (McAleer).

In McAleer, the Federal Court of Appeal had applied the Taylor findings tomatters exposing persons to hatred or contempt on grounds other than those raised in Taylor (race and religion) such as sexualorientation, as in the case of the “AIDS Secrets” article. [35] Mr. Lemire contended that the manner in which the 2001 amendment to subsection 13(2), specifying that it applied to computersand the Internet, was adopted, as part of the Anti-terrorism Act, demonstrated that

section 13 is not a remedial statute to preventdiscrimination but rather has as its objective to control opposition to government policies such as multiculturalism. The Tribunal, citingthe legislative history of the amendment, found that this did not represent a change in circumstances that would justify revisiting theSupreme Court’s findings in Taylor regarding subsection 13(1)’s objective (at paragraph 231 of the decision). The amendment wasadopted to clarify what was already the

interpretation of the section, that it applied to the communication of hate messages using newtechnology. [36] The Tribunal acknowledged that a formal declaration of invalidity was not a remedy available to it: Cuddy Chicks Ltd. v. Ontario(Labour Relations Board), (SCC), [1991] 2 S.C.R. 5. Citing Nova Scotia (Workers’ Compensation Board) v. Martin;Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504 (Martin), at paragraphs 26–27, the Tribunalrefused to apply

section 13 and subsections 54(1) and (1.1) to issue a remedial order against Mr. Lemire for his breach of the Act. [37] While not expressly stated in the Tribunal’s decision, the authority to decline to apply the statute was exercised under subsection52 (1) of the Constitution Act, 1982 (see Martin, at paragraph 28). Mr. Lemire had also sought a remedy under subsection 24(1) of theCharter before the Tribunal, as he does before this Court, but has not articulated how subsection 24(1) might apply or what remedy theTribunal or the Court might fashion under that

section for the alleged breach of his Charter rights. ISSUES [38] The Commission, supported by the respondent Richard Warman and the interveners the ACLC, B’nai Brith and the SWC,frames the issues on the present application in the following terms: a. whether the Tribunal erred in law when it found that the manner by which the Commission exercises its statutory mandate couldrender sections 13 and 54(1)(a) & (

b) of the CHRA unconstitutional; and b. whether the Tribunal erred when it refused to apply

section 13 and section 54(1) and (1.1) of the CHRA in their entirety when theconstitutional concern could be remedied by refusing to apply sections 54(1)(

c) and (1.1) of the CHRA. [39] The Commission submits that it seeks to preserve the core of the scheme established in 1977 and applied in the modern contextto Internet based communications. The Commission does not contest the Tribunal’s ruling with respect to the penalty provisions and, inits oral submissions, indicated that it has not taken the position since the Tribunal’s decision in this matter that the penalty provisionsshould be applied in other proceedings.

It argues that the only constitutional remedy that should have flowed from the Tribunal’sfindings is that the penalty provisions ought to be read out of the statute, applying the doctrine of severance. [40] The Commission contends that the Tribunal erred in not issuing a declaration that the publication of the

article “AIDS Secrets”constituted a breach of

section 13 and in failing to exercise the Tribunal’s jurisdiction to consider whether a remedy ought to be grantedunder paragraph 54(1)(a)—the authority to issue a cease and desist order—or paragraph 54(1)(b)—the compensation provision. TheCommission does not contend that the Tribunal was obliged to make an order under either of these provisions but argues that theTribunal was bound to make the subsection 13(1) declaration and consider these remedies.

It seeks to have the matter remitted to theTribunal for these purposes. [41] In oral argument, the Commission pointed out that there is no formal application before the Court for judicial review of theTribunal’s finding that Mr. Lemire contravened subsection 13(1). A request for a declaration of constitutional invalidity is contained inthe notice of constitutional question which was served in May 2011. The Commission takes the position that the only issues properlybefore me in this proceeding are those set out in its notice of application.

If the respondent Lemire is successful in defending theapplication, the Commission argues, the only remedy available to the Court under

section 18.1 of the Federal Courts Act is to dismissthe application. [42] Mr. Lemire, supported by the interveners CFSL, CAFE, the CCLA and the BCCLA, calls for a broader consideration of the

constitutionality of the hate speech regime governed by

section 13 of the Act . They strenuously object to the scope of this application being restricted to the issues framed in the Commission’s notice of application. As the Tribunal found in Mr. Lemire’s favour on his constitutional motion, they argue, he had no basis in law to seek judicial review of that decision. Since this Court has the authority to make a general declaration of constitutional invalidity he should not be restrained from seeking such relief through the vehicle of the application brought by the Commission. [ 43 ] As noted by Justice Anne Mactavish in Air Canada Pilots Association v.

Kelly , 2011 FC 120 , [2012] 4 F.C.R. 277, at paragraphs 481–489 , the power of this Court to grant declaratory relief is predicated upon a finding that the Tribunal in question erred in one of the ways identified in subsection 18.1(4) of the Federal Courts Act . In that case, Justice Mactavish found that the Tribunal had not erred in its determination of Charter invalidity. Consequently, she held, the remedial powers conferred on the Court by subsection 18.1(3) of the Federal Courts Act were not engaged.

The proper remedy in those circumstances was to dismiss the applications for judicial review insofar as they related to the Charter issue. Assuming, without deciding, that a general declaration of invalidity could ever be granted to a responding party on an application for judicial review, she declined to grant such a remedy.

The responding parties had not given notice to the attorneys general that they would be seeking such a remedy and the request, in that case, was found to be a collateral attack on the Tribunal’s remedial decision. [ 44 ] Here it has been clear from the outset that the respondent Lemire and the interveners who support his position have been seeking a general declaration of invalidity and they have given proper notice of the question to the attorneys general.

While the matter is not without some doubt, I am satisfied that if I were to dismiss the application for judicial review and uphold the Tribunal’s decision I could exercise the jurisdiction to issue a general declaration of invalidity with respect to

section 13 and subsections 54(1) and (1.1). Similarly, I am confident that I can uphold the Tribunal’s decision in part and remit that portion where I conclude the Tribunal fell into error. [ 45 ] I see no reason to address the other arguments by Mr. Lemire and the CFSL respecting paragraph 2(

a) and

section 7 of the Charter , which the Tribunal did not accept. Those arguments and the Tribunal’s findings are secondary to the main controversy between the parties in respect of

section 13 of the Act and paragraph 2(

b) of the Charter . They were not supported by the evidence received by the Tribunal and are not properly before the Court on this application. In general, I agree with the Tribunal’s disposition of those arguments. [ 46 ] In my view, the issues raised by the parties and interveners in these proceedings that the Court must address are as follows: 1. Was it appropriate for the Tribunal to consider the manner by which the Commission exercises its statutory mandate in determining whether to apply section13 of the Act ? 2. Do

section 13, subsections 54(1) and (1.1) of the Act violate paragraph 2(

b) of the Charter and if so, are they saved by

section 1 of the Charter? 3. What is the appropriate remedy, if

section 13, subsections 54(1) and (1.1) of the Act , read together, are found to be unconstitutional? Is severance available? ANALYSIS Standard of Review [ 47 ] As a result of R. v. Conway , 2010 SCC 22 , [2010] 1 S.C.R. 765 [ Conway ], at paragraph 81 , the tests for determining the constitutional issues that may be decided by administrative tribunals have been merged. What is to be determined post- Conway is whether the Tribunal has the authority to decide questions of law.

The Tribunal is a specialized body that has the statutory authority to determine questions of law ( subsection 50(2) of the Act ) and is therefore competent to consider and apply the Charter and Charter remedies when resolving the matters properly before it. [ 48 ] Insofar as the issues before the Court relate to constitutional matters, the Tribunal’s findings are reviewable on a standard of correctness: Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, at paragraph 58 . “Such questions, as well as other constitutional issues, are necessarily subject to a correctness review because of the unique role of s. 96 courts as interpreters of the Constitution: Nova Scotia (Workers’ Compensation Board) v. Martin , [2003] 2 S.C.R. 504, 2003 SCC 54 .” This applies equally to courts established under

section 101 of the Constitution [Constitution Act] in respect of matters falling within their jurisdiction. This Court, therefore, owes no deference to the Tribunal with respect to its determination of the constitutional questions. [ 49 ] Questions which require the Tribunal to interpret a provision in its own enabling legislation in relation to an issue falling within its core function and expertise will presumptively attract a reasonableness standard of review, and will only attract a correctness standard in limited circumstances: see Smith v.

Alliance Pipeline Ltd ., 2011 SCC 7 , [2011] 1 S.C.R. 160, at paragraph 28 ; Celgene Corp. v. Canada (Attorney General) , 2011 SCC 1 , [2011] 1 S.C.R. 3, at paragraph 34 ; and Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471, at paragraph 24 . [ 50 ] The Tribunal’s findings of fact as to the subject-matter of the complaint referred to it for determination are to be accorded deference and are reviewable on a standard of reasonableness. Paragraph 18.1(4) (

d) of the Federal Courts Act provides that the Court can intervene only if it considers that the board “based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it”: see Mugesera v. Canada (Minister of Citizenship and Immigration) , 2005 SCC 40 , [2005] 2 S.C.R. 100, at paragraph 38 . There was no serious attempt made in these proceedings to challenge the Tribunal’s finding that the

article “AIDS Secrets” contravened subsection 13(1) and it will not be necessary for me to review the evidence in support of that finding. In determining whether to apply

section 13 of the Act , was it appropriate for the Tribunal to consider the manner in which the Commission exercises its statutory mandate? [ 51 ] The constitutional basis for allowing Canadians to assert their Charter rights in the most accessible form available and without the need for bifurcated proceedings between superior courts and administrative tribunals is beyond dispute. The denial of early access to

remedies when early or immediate access is clearly needed or when delay itself is a perpetuation of a Charter violation is in effect adenial of an appropriate and just remedy, as Lamer J. [as he then was] pointed out in his dissent to Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863, at page 890.

And as stated by the Supreme Court in Conway, at paragraph 79: Over two decades of jurisprudence has confirmed the practical advantages and constitutional basis for allowing Canadians to assert theirCharter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts andadministrative tribunals (Douglas College, at pp. 603–4; Weber, at para. 60; Cooper, at para. 70; Martin, at para. 29). The denial of earlyaccess to remedies is a denial of an appropriate and just remedy, as Lamer J. pointed out in Mills, at p. 891.

And a scheme that favoursbifurcating claims is inconsistent with the well-established principle that an administrative tribunal is to decide all matters, includingconstitutional questions, whose essential factual character falls within the tribunal’s specialized statutory jurisdiction (Weber; ReginaPolice Assn.; Quebec (Commission des droits de la personne et des droits de la jeunesse); Quebec (Human Rights Tribunal); Vaughan;Okwuobi. See also Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 49.). [52] In the present case, the Tribunal has the authority to receive systemic evidence as to how

section 13 is administered and theeffects of the legislation but it has no jurisdiction to review the actions of the Commission. There is nothing in sections 50 to 54 of theAct, which define the Tribunal’s powers in conducting an inquiry, to give it such authority. See, in this respect, Cooper v. Canada(Human Rights Commission), (SCC), [1996] 3 S.C.R. 854 [Cooper], at paragraph 50. The controversy between theparties is over the nature and extent of the Tribunal’s review of the Commission’s actions in this case. [53] It is, therefore, clear that the Tribunal had the authority and duty to receive systemic evidence as to how

section 13 isadministered and the effects of the legislation in determining the constitutional motion brought before it. The Tribunal’s view of thisresponsibility is set out at paragraphs 286–290 of its decision.

While it acknowledged that the position advanced by the Attorney Generalthat it had no jurisdiction to sit in review of the decisions taken by the Commission was correct, it considered that the real and factualcontext in which the enactment exists and is applied could not be ignored. [54] However, the Tribunal can only consider Charter issues that arise in the course of a matter within the jurisdiction of the Tribunal:Martin, at paragraph 45; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, atparagraph 24.

The question is whether the remedy in question is one that the legislature intended would fit within the statutoryframework of the particular tribunal; Conway, at paragraph 82. [55] The CHRA establishes two distinct institutions, each of which has a particular role as described by the statute. It sets out acomplete mechanism for dealing with human rights complaints. Central to this mechanism is the Commission. Under the scheme of theAct, the Commission is the body empowered to accept, manage and process complaints of discriminatory practices.

The Tribunal has nostatutory mandate under the Act with respect to its administration, except as set out in

section 50 which provides that “it shall inquire intothe complaint” when a request is made by the Commission that it do so. These factors suggest that the legislature did not intend that theTribunal would have the authority to find the Act inoperative based on the manner in which the statute was administered. [56] In particular, the Tribunal has no jurisdiction over the exercise of the Commission’s discretion under CHRA subsection 44(3)(rejecting or referring a complaint) and

section 47 (appointing a conciliator). The proper way to challenge a Commission decision inrespect of such matters is through judicial review by the Federal Court. [57] In exercising its authority, the Tribunal cannot collaterally question a Commission decision that is within the statutory authorityof that body. This is properly left to judicial review: Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at paragraph 53; Sam Lévy & Associés Inc. v. Mayrand, 2005 FC 702, [2006] 2 F.C.R. 543 [Sam Lévy &Associés Inc.], at paragraph 169, affirmed by 2006 FCA 205, 58 Admin.

L.R. (4th) 255, leave to appeal to the S.C.C. refused, [2006] 2S.C.R. xi; and Canada v. Prentice, 2005 FCA 395, [2006] 3 F.C.R. 135, at paragraphs 32–33, leave to appeal to S.C.C. refused, [2006] 1S.C.R. xiii. [58] The concern that the Commission referred this complaint to the Tribunal even though most of the impugned material had beenmoved from the Internet is, in effect a comment on the Commission’s decision to request that the Tribunal hold an inquiry. That isoutside the Tribunal’s mandate.

The Tribunal compounded the error when it commented on other complaints that had been referred to itin similar circumstances and remarked on the low settlement rate for

section 13 complaints and on the fact that the Commission did notgenerally offer to mediate such matters Those questions were not before the Tribunal for inquiry. [59] The member took a critical view of the manner in which the Commission’s investigation was conducted and factored that into hisconclusion that the scheme was constitutionally flawed. The member considered that the Commission should have made additionalefforts to communicate with Mr. Lemire and questioned that the Commission proceeded with the complaint when Mr.

Lemire had takendown the message board and deleted the post found to constitute a hate message from his website prior to the proceedings. [60] In this instance, the member accepted Mr. Lemire’s contention that the complainant and the Commission declined to mediate orconciliate a settlement to the complaint. This is not borne out by the record of the Tribunal proceedings. Repeated efforts were made toengage Mr. Lemire in mediating or negotiating a settlement of the complaint.

However, they were conditional on Lemire’s acceptance ofa cease and desist order, which he refused to accept. [61] The member’s analysis that this complaint had not been handled in a sufficiently conciliatory and remedial fashion does notreflect the record. The member declined to receive information pertaining to the settlement efforts on the ground that such informationwas privileged. However, he allowed Mr. Lemire to repeatedly question Mr. Warman and Commission staff as to why the complaint hadnot been withdrawn following removal of the “AIDS Secrets” article.

The proceedings were adjourned on at least one occasion, February1, 2007, to allow such discussions to take place. [62] Absent a cease and desist order there was nothing to prevent the strategic removal of material in violation of the Act andreposting of it as soon as the complaint had been withdrawn. Mr. Lemire argued on this application that had he done so the complaintcould be filed again. “Relaying a one page complaint doesn’t seem to be too much of a hassle” as his counsel put it in oral argument. Idisagree.

Bad faith of this nature would render the process essentially meaningless and ineffective and is hardly consistent with the

objectives of the legislation. [63] As was noted by counsel for the Attorney General of Canada before the Tribunal, the hearing went beyond the scope of theTribunal’s mandate to determine the factual and legal issues and became an inquiry into the manner in which the complainant and theCommission conducted themselves in relation to the complaint. The Tribunal stepped over the line of its proper role—adjudication of thecomplaint—and assumed the role the Court would have upon an application for judicial review of the actions or decisions of theCommission. [64]

Section 13 cases, while few in number, tend to be among the most intractable handled by the Commission due to the nature ofhate speech. They do not lend themselves easily to mediation or conciliation. See for example Richard Moon, Report to the CanadianHuman Rights Commission Concerning

Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet(October 2008) (Moon Report), at page 10: “In contrast to other discrimination complaints, conciliation tends to play only a minor role insection 13 cases because the expression that is the subject of the complaint is often extreme in character, and because the partiesordinarily have no relationship prior to the complaint.” See also Lawrence McNamara, “Tackling Racial Hatred: Conciliation,Reconciliation and Football” (2000), 6(2) Austl. J. H.

R. 5, at pages 24–25; and Philip Bryden and William Black, “Mediation as a Toolfor Resolving Human Rights Disputes: An Evaluation of the B.C. Human Rights Commission’s Early Mediation Project” (2004), 37U.B.C. L. Rev. 73. These cases represent a small part of the workload for both the Commission and the Tribunal. The Commission’sAnnual Report 2006 (Ottawa: Public Works and Government Services Canada, 2007 [2006 Report]), at pages 7 and 24 shows thatbetween 2002 and 2006 the Commission received 57

section 13 allegations of which 55 were complaints of hate messages on theInternet. Twenty-nine of the 55 complaints were sent to the Tribunal. In all, the Commission dealt with 6 003 allegations of all typesduring the years 2002-2006 (2006 Report, at page 7), 591 of which were referred to the Tribunal (2006 Report, at page 21).

Section 13complaints represented only 1 percent to 2 percent of the total number of complaints dealt with by the Commission. [65] While the Tribunal member clearly understood the difficulties presented by such proceedings, it was unreasonable of him toexpect that this matter could have been resolved by conciliation or that the Commission and Mr. Warman would abandon the complaintwhen Lemire removed the one

article found to communicate hate for which Lemire was found to be directly responsible. Decisions wererequired from the Tribunal on the nature of the content found on Lemire’s site and on the extent of his involvement with the otherwebsites. [66] The member directly linked his finding that Mr. Lemire had “amended his conduct by removing the impugned material as soonas he learned of the complaint against him” to his conclusion that the process Lemire experienced was not what the Supreme Courtunderstood in Taylor.

However, the fundamental structure of the human rights process under the Act has not changed since Taylor.Referring a complaint to conciliation is and was but one of the many routes that the Commission may pursue to resolve a complaint.

Thestructure on which the Supreme Court based its decision and upon which the Tribunal sought to distinguish Taylor has not changed.What changed, as the Tribunal properly found, were the remedies. [67] As counsel for the Commission pointed out in argument, the practical difficulties that may arise when the Tribunal strays outsideof its mandate, as experienced in this case, were foreshadowed by the following comment of Justice La Forest in Cooper, above, atparagraph 65: I would add a practical note of caution with respect to a tribunal’s jurisdiction to consider Charter arguments.

First, as already noted, atribunal does not have any special expertise except in the area of factual determinations in the human rights context. Second, anyefficiencies that are prima facie gained by avoiding the court system will be lost when the inevitable judicial review proceeding isbrought in the Federal Court. Third, the unfettered ability of a tribunal to accept any evidence it sees fit is well suited to a human rightscomplaint determination but is inappropriate when addressing the constitutionality of a legislative provision.

Finally, and perhaps mostdecisively, the added complexity, cost, and time that would be involved when a tribunal is to hear a constitutional question would erodeto a large degree the primary goal sought in creating the tribunals, i.e., the efficient and timely adjudication of human rights complaints. [68] The hearings before the Tribunal in this matter took more than 18 months to complete. Many of the hearing days were expendedon evidence relating to the Commission’s investigation and treatment of

section 13 cases despite repeated objections. Another year wasrequired to produce the decision. The “inevitable judicial review proceeding” followed. As forecast by Justice La Forest in Cooper, theadded complexity, cost and time involved in hearing this matter eroded any pretence of an efficient and timely adjudication of thecomplaint. [69] The Tribunal erred in focusing its attention on the Commission’s administration of the statute in this case, a subject beyond itsmandate and the scope of its authority. [70] I will turn now to the constitutional question. As the Commission submits,

section 13 of the Act may be found to beunconstitutional only if the legislation itself is the source of the Charter violation. Administration of the statute by the Commissioncannot, in itself, render the statute unconstitutional: Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3S.C.R. 624 (Eldridge), at paragraph 20; and Thomson v.

Alberta (Transportation and Safety Board), 2003 ABCA 256, 330 A.R. 262(Thomson), at paragraph 44; leave to appeal to S.C.C. refused, [2004] 1 S.C.R. xv. [71] If the Commission has performed its statutory mandate in a manner inconsistent with the Charter, subsection 24(1) is theappropriate provision of the Charter upon which to grant a remedy, not subsection 52(1) [of the Constitution Act]: Eldridge, at paragraph20; Thomson, at paragraph 44; and Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R.1120 [Little Sisters], at paragraph

Section 24 remedies which do not involve striking down the legislation would include such thingsas a stay of proceedings, the exclusion of evidence in the particular matter or the referral back to the administrative decision maker withappropriate directions as to how the matter ought to be decided. Those are all remedies which the Court could grant on judicial review. Do

section 13, subsections 54(1) and (1.1) of the CHRA violate paragraph 2(

b) of the Charter and, if so, are they saved by

section 1 ofthe Charter? [72] I start from the proposition, as did the Tribunal, that Taylor remains binding unless persuaded that it is no longer precedential

authority due to changed factual and legal circumstances since it was decided. Mr. Lemire, the CCLA, the BCCLA and the CFSL arguethat the inclusion of a penalty provision in the

section 13 regime is sufficient to distinguish this case from Taylor. Alternatively, theycontend that the extension of the regime to the Internet is an alternate ground on which to uphold the Tribunal’s decision,notwithstanding that the Tribunal did not rely on that ground: Perka et al. v. The Queen, (SCC), [1984] 2 S.C.R. 232, atpage 240: In both civil and criminal matters it is open to a respondent to advance any argument to sustain the judgment below, and he is not limitedto appellants’ points of law. A party cannot, however, raise an entirely new argument which has not been raised below and in relation towhich it might have been necessary to adduce evidence at trial. [73] The Commission

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