Breakthrough: Anti-racism public interest law firm intervenes against CHRC

I'm delighted to learn that my old friends at the Canadian Constitution Foundation have requested intervenor status in Marc Lemire's constitutional challenge to section 13 of the Canadian Human Rights Act. Section 13 is the thought crimes provision that has also ensnared Maclean's magazine for publishing excerpts of Mark Steyn's book, America Alone.

My own human rights battle at the Alberta commission is under that province's version of section 13, which happens to be section 3 under the Alberta act. If the federal section 13 is struck down by the courts, the provincial law under which I'm charged (and others, like Rev. Stephen Boission have been convicted), would immediately be of dubious constitutionality, too.

You can see the CCF's application for intervenor status here.

The CCF's mandate isn't just anti-racism -- they have intervened for patients' rights, as well. But their founding case was taking up the cause of a Nisga'a Indian chief, James Robinson, also known by his Nisga'a name, Chief Mountain. More recently, the CCF intervened on behalf of Japanese Canadian fishermen who were being discriminated against on the basis of their race. In other words, the CCF's anti-racism credentials are impeccable.

I suspect that the CCF's intervention will be the first of several. I think it's likely that the Canadian Civil Liberties Association, or one of its affiliates, will join the constitutional challenge, too. And the Canadian Association of Journalists has expressed their willingness to intervene in my case and in Maclean's, too. I'm grateful for their offer of help -- but intervening in this direct constitutional challenge could be a way to defeat the legislation itself -- a more productive use of their legal resources than fighting individual cases under the legislation.

By the way, I think that a constitutional challenge to section 13 has a good chance of success. Eighteen years ago, section 13 was tested by the Supreme Court of Canada, and it survived by the barest of margins: four to three -- and one of the dissenting three judges, Beverley McLachlin, is now the Chief Justice. You can read the case here.

If section 13 was ruled constitutional in 1990, why would it fail now? Precisely because the Canadian Human Rights Commission has been unable to control its appetite. In 1990, the SCC let the law live because, said the court:

In sum, the language employed in s. 13(1) of the Canadian Human Rights Act extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity.  Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase "hatred or contempt", there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.

The CHRC's conduct has been more and more censorious since 1990; it has moved squarely into arbitrating what's "offensive", by their own proud admission. Even without the ascension of Justice McLachlin, the retirement of Justice L'Heureux Dube and the death of Justice Wilson, the CHRC's current conduct clearly exceeds the latitude granted by that 1990 judgment.

I'm proud of the CCF's intervention. The Canadian Civil Liberties Association intervened in the 1990 case -- I'm sure they'll intervene again, now. Add in groups like the Canadian Association of Journalists and maybe even PEN Canada, and you've got a big tent coalition for liberty.

I'd like Canada's HRCs to have their wings clipped by Parliament. But maybe the Supreme Court of Canada will get there first!