Deborah Gyapong: Hajis conclusion and some of mine

Hajis conclusion and some of mine

Here's the Canadian Human Rights Tribunal's conclusion on the Lemire decision:

V. Conclusion

I have determined that Mr. Lemire contravened s. 13 of the Act in only one of the instances alleged by Mr. Warman, namely the AIDS Secrets article. However, I have also concluded that s. 13(1) in conjunction with ss. 54(1) and (1.1) are inconsistent with s. 2(b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit within the meaning of s. 1 of the Charter. Since a formal declaration of invalidity is not a remedy available to the Tribunal (see Cuddy Chicks Ltd. V. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5), I will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial order against him (see Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54 at paras. 26-7).

"Signed by"

Athanasios D. Hadjis

Mark Lemire's five-year legal battle has scored a win for all of us who care about freedom of expression, including expression that you or I might find objectionable. Hey, isn't that the point? But Hadjis does not grant Lemire any remedies. In other words, he's stuck with a hefty legal bill. The process is the punishment. So even though in effect, Hadjis has declared Section 13(1) unconstitutional under the Charter, I'm not a lawyer and I'm not sure how binding a tribunal decision like this will be on any other tribunal operating under the otherwise wonky "human rights" jurisprudence.

I have only skimmed the decision and plugged in a few search words on the PDF. And is it me or is there no mention of "jadewarr" or "lucy" or any of the investigative techniques of either the complainant or any of the "human rights" investigators?

I imagine that Ezra Levant, Mark Steyn and others will have much more to say about this.

On one hand, it is good that on the basis of legal principles, Hadjis has found Section 13(1) incompatible with Section (2) of the Charter and in conjunction with other portions of the act not a reasonable limit. What effect this will have? I don't know. I hope some legal minds weigh in on this soon.

On the other, the decision could have avoided all the lofty constitutional arguments and dealt only with the process and what some have argued was abuse of process. That also might have resulted in a win for Lemire, but not a win for everyone else, except insofar as it might have further discredited the cast of characters at the CHRC.

I kinda wish the decision had included both an assessment of some of the things that where highly problematic about the way the investigation was conducted against Lemire aas well as the principled arguments.

But a half a loaf is better than no loaf at all.



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