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An adjudicator of a human rights hearing into an Internet hate case expressed serious misgivings Monday about whether a provision used to attack hate speech can continue to exist in the Internet age.

The Human Rights Act provision permits anyone who objects to even a borderline case of alleged hate speech to expose the author to a costly, cumbersome human rights adjudication process, said Athansios Hadjis - who is presiding over a Canadian Human Rights Tribunal against Internet webmaster Marc Lemire.

Citing a recent case in which Maclean's magazine columnist Mark Steyn defended himself against a complaint from a Muslim group, Mr. Hadjis said it may be all too easy for an individual to be “dragged through the process.”

Mr. Hadjis said that the controversial provision created to combat hate messages left on telephone machines operated by member of the far right - made sense in the past. However, he said that its usefulness may be in the past.

Hate messages on telephone message machines tended to be overt, he said, whereas the ocean of opinions on the Internet include many that are borderline cases of hate.

“Maybe the scale is tipping the other way,” Mr. Hadjis interjected during closing submissions at the Lemire hearing. “There is so much grey zone here that it may tip the scale back the other way.”

“Suddenly, the chilling effect catches not only individuals who set up telephone messages...but just about everyone who posts anything on the Internet,” Mr. Hadjis said. “What we have is the reality of the Internet - open to all; everyone participates...” he said.

The complaint against Mr. Lemire alleges that he exposed Jews, blacks, Italians, homosexuals and other groups to hatred or contempt by permitting hate-mongers to post virulent comments on his Internet message board.

Many of the messages on Mr. Lemire's message board involved jokes that ridiculed racial groups as inferior, imbecilic or deserving of death. Some propagated vicious stereotypes, while others blamed them for global economic chaos or the spread of AIDS.

In one of the longer messages, the author claimed that homosexuals had willingly spread AIDS because of their “sleazy” sexual habits. “Innocents must die so that the sick sex games of a perverted minority may continue,” the author message said.

Mr. Lemire has challenged the constitutionality of the provision - s. 13 of the Human Rights Act - arguing that it is an unjustifiable restriction on free speech.

However, lawyers for the Canadian Human Rights Commission and the federal Department of Justice argued Monday that the ubiquity of Internet communication is the strongest argument for why society must protect minorities by policing cyberspace for expressions of hatred.

The messages posted on Mr. Lemire's message board were “voluminous and vile,” said CHRC lawyer Margot Blight. “They were more than offensive. They showed extreme ill will toward designated groups.”

Ms. Blight argued that the legal test under s. 13 is strict, and that the CHRC does not pursue a case unless it constitutes an unusually strong expression of “calumny or detestation” toward a minority.

Justice Department lawyer Simon Fothergill told Mr. Hadjis Monday that, despite being more than 20 years old, a Supreme Court of Canada ruling upholding the human rights provision in the case of John Ross Taylor applies well to the Internet era.

A more recent Human Rights Tribunal ruling, involving far right publisher Ernst Zundel, also upheld the provision, he said. While the ruling was not appealed in the court system, Mr. Fothergill said, it should nonetheless have a “very persuasive” influence on Mr. Hadjis.

Mr. Fothergill also argued that besides lacking the jurisdiction to find s.13 unconstitutional, it would be over-reaching to strike down an entire section when it may be only one or two minor procedural elements of it that require re-tooling.

Mr. Hadjis also expressed concern Monday that a mainstream organization such as the CBC could be charged under the hate provision, were a listener to post a hate message on its audience feedback message boards.

While the CBC is at least capable of removing such a message instantly, he said, “many are run by small operators who cannot possibly be manning them 24/7.”

But Ms. Blight said that the Lemire website contained multiple messages which could not have failed to be noticed by Mr. Lemire, and they were far from being borderline cases.

“The hateful content found on this message board covers pretty well all of the territory one can refer to as the hallmarks of hate,” she said.

“This is not a case where one message slipped over the line in an otherwise well-moderated message board,” Mr. Fothergill added.

Referring to the AIDS posting, Ms. Bright said: “What is being said here is that homosexual perversion and their refusal to be tested (for AIDS) has caused thousands of people to die. In my submission, that is a cruel and hateful stereotype.”

Mr. Hadjis noted that the author had assembled a pastiche of statistics, AIDS research and inflamed hyperbole: “Is that the first time that has happened?” he asked.

Ms. Blight responded that it is one thing to have concerns about free expression, but postings of this sort are aimed at something far more insidious than mere debate - spreading hatred against identifiable minorities.

Ms. Blight argued against a recommendation by Mr. Lemire that jokes and emotional expressions which are a spontaneous reaction to material already posted should be exempted from prosecution as a human rights violation.

“The jokes for which the exemption is sought are not, in my submission, funny,” Ms. Blight said. “There is no free pass for jokes, either.”

Ms. Blight also rejected suggestions from Mr. Lemire that the case against him is unfair because employees of the Human Rights Commission sometimes use pseudonyms to post messages on boards in an attempt to provoke others or discover their identity.

Since these tactics were not used in the Lemire case, she said, they are irrelevant to it. In addition, Ms. Blight said, any respondent who objects in future is free to pursue the case in the Federal Court of Canada and argue against their use.

The Commission has asked Mr. Hadjis to make a declaration that Mr. Lemire infringed the Act, to order him to “cease and desist” in operating hate websites, and to levy a financial penalty on him.

Final submissions in the case continue Tuesday.