Kulaszka and Fromm hammer the CHRC on Secrecy Obsession, Untimely disclosure and Hiding of Documents
1: Submission from
2: Submission from Paul Fromm
Attention:
Re: Warman v. Lemire, Tribunal No. T1073/5405
To the Tribunal:
1. Untimely Disclosure of Jadewarr and Police
I have the first letter of
Hundreds of pages have now been disclosed, not only with respect to the “Jadewarr” questions, but also with respect to the police questions, which were the subject of the judicial review to the Federal Court on January 15, 2008 and the order of the Tribunal of August 16, 2006.
I want this Tribunal to imagine how different the examinations of Richard Warman, Dean Steacy and Harvey Goldberg would have been had this information been disclosed when it should have been disclosed, which was in 2006.
The prejudice is simply extraordinary. And the prejudice is not only to the respondent but also to the public interest since the public has a right to know if constitutional guarantees have been compromised.
I was handed a bundle of emails of Dean Steacy’s “Jadewarr” email account on
I have still never received any documents about the other persona and email account revealed in his testimony that day, namely, Odensrevenge, except what appears to be registration acknowledgments.
I would not be protecting my client’s interests without making it clear that the only way this prejudice can be even partially alleviated, is by the recall of
I will be making further submissions on this after the Tribunal’s ruling with respect to the redactions.
2. Disclosure and the August 16, 2006 Tribunal Order:
The Commission submits that the disclosure did not fall within the August 16, 2006 order. That is patently ridiculous. The order stated “all documents’ and was not restricted to general files. The police documents should have been disclosed in 2006.
When questions were asked of Dean Steacy regarding relations with police, the Commission claimed section 37 of the Canada Evidence Act and the respondent was forced to go to the Federal Court to obtain those answers.
It is submitted that the Commission is fully aware that in this particular area, the unintended effects of section 13 on the rights of Canadians have been severe and it has tried valiantly to stop this evidence from being put before this Tribunal.
3. Redactions:
Proper disclosure has not been made. The Tribunal got a taste of the type of redactions made with the documents filed before it on
He is making that demand now for these documents.
It is clear from some of the documents that material parts have been whited out. Other parts have large areas blacked out.
The Commission simply states that all of this relates to private information. I cannot tell from the documents is that is true and I should not have to rely on the word of the Commission.
Further, there can be no expectation of privacy for persons who are acting in an official capacity with police and other government agencies, nor can there be for the complainant if his name and email are included.
In L.L.A. v. A.B. [1995] 4 S.C.R. 536, the Supreme Court set out the test elaborated in Wigmore:
In a case-by-case privilege, the communications are not privileged unless the party opposing disclosure can show they should be privileged according to the fourfold utilitarian test elaborated by Wigmore (Evidence in Trials at Common Law (
· (1) The communications must originate in a confidence that they will not be disclosed.
· (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
· (3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
· (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. [Emphasis in bold added]
In criminal proceedings, all of these documents would be disclosed fully. There can be no expectation of privacy whatsoever when the rights of Canadians subject to proceedings under section 13 are involved and persons are acting in their official capacity. Without this first branch of the Wigmore test fulfilled, there is no need to even consider the rest.
The expectation of privacy cannot be applied to police officers and investigators with the Commission, carrying out official duties or any other individuals involved in these investigations.
And
The respondent is entitled to see the documents in their original form with no redactions.
This applies as well to the documents disclosed in
Yours truly,
RESPONSE TO BLIGHT'S SUB
Canadian Association for Free Expression
Ph: 905-274-3868; FAX: 905-278-2413
re: CHRT File: T1073/5405 . Richard Warman and the Canadian Human Rights Commission v
Attention:
Fax: 613 995-3484
I write in response to the submissions made by
With the Commission now withdrawing its objections for Section 37 subject areas, and, thereby, admitting it abused Section 37 and should have never made the claims, we demand to have full copies of all material that was simply dropped on
JADEWARR E-
This is totally absurd. At the
The new disclosure of "Jadewarr" e-mails received on April 29, 2008, consisted of 229 pages. Of those some were "spam" e-mails. But a good portion were e-mails which were not disclosed at the
As well, the "Jadewarr" e-mail disclosure package had three e-mails from the "odensrevenge@gmail.com". To date only three e-mails from that account were disclosed. We want full disclosure of all e-mails in that account.
INFILTRATION AND SPYING ACCOUNTS:
CAFÉ DE
1. All posts, private messages, correspondence, print outs, times accessed and all other evidence for the following CHRC users names:
· "jadewarr" on FreeDominion
· "jadewarr" on Stormfront
· "jadewarrior" on Stormfront
· "oldens Revenge" on Stormfront
· "odens revenge" on Stormfront
· "jadewarr" on AOL
· "jadewarrior" on Vanguard News Network Forum
· "jadewarr" on "Recomnetwork"
And any other account used by any CHRC employee with respect to a Section 13 case.
2. All posts, messages, correspondence, print outs, times accessed and all other evidence for the following CHRC email addresses:
And any other user account used by any CHRC employee with respect to a Section 13 case.
CHRC Claims of Privacy
The Commission is claiming it has heavily redacted documents for "privacy" reasons. This is totally unacceptable. The documents should be disclosed fully unredacted. Just a brief glace at the documents, the redacted portions appear to be names of Police officers, government officials, and others acting in their official roles of their respective agencies. The redactions are inappropriate and without any merit in law.
[Sadly] The Commission has shown that it is willing to create fake evidence in order to forward its position. At that time, the Commission was demanding the draconian measure of banning
This is a shocking admission. This confirms that the Commission, indeed, submitted forged evidence. This is unacceptable and should have been sternly dealt with by the Tribunal at the time. Because of the complete lack of action by the Tribunal, the Commission simply continued to ignore the rules with impunity.
Now, the Commission is trying to concoct some sort of nefarious "security issue" and "privacy" claims to redact information from government employees, police, and others. These claims of "public security" by the Commission have already been openly questioned by the Tribunal:
"The outcome of the s. 37 matter gives me pause to question the soundness of the Commission's invocation of public security concerns with respect to the testimony of these witnesses." (CHRT Ruling –
The documents should be disclosed in full to all parties. The parties are under implied undertakings. This should be enough for the tribunal to order complete unredacted copies. If, indeed, real objections of privilege occur, they can be made under the Act when the materials are filed into evidence, but certainly not at the disclosure stage.
Furthermore, even if filed as evidence, all the personal information is still protected, when the material is entered into evidence, as the general public can only receive copies via the Access to Information Act. And any such violations of the implied undertaking can be dealt with if/when they happen. But to hide the contents of documents on totally unsubstantiated blanket claims, is wrong and a total denial of natural / fundamental justice. This tribunal must not stand for it.
The Commission has abused these absurd claims of "privacy" and "security" to the point that the documents disclosed are now almost devoid of any meaning, and, therefore, deny the respondent/victim any real possibility of questioning witnesses on the meaning, intent, context and content of documents.
During the
That is not disclosure, but rather a clear and deliberate attempt to stifle the process and avoid following the rules. Throughout this hearing, the Commission has handled its obligation to disclose like the dance of the seven veils. Instead of full and forthright disclosure, the respondent/victim has had to battle every step of the way for full disclosure and has still not been granted this right which is fundamental to mounting a proper defence.
In the alternative, the Commission should provide a list, detailing every single claim for every single redaction on a page by page basis, so that the privilege claimed can be properly challenged. In keeping with the normal rules, the Tribunal, should receive full unredacted versions of the documents, and make a decision on a per-instance claim.
Wigmore Privilege
CAFE submits that the "Wigmore" privilege can not and should not be applied to the redactions of the Commission. The Commission states that it has invoked "Wigmore" for "individuals' reasonable expectation of privacy", yet "Wigmore" has no such exemption. If
"Wigmore" refers to a four-pronged approached, and it clearly does not in any way relate to the redactions made by the Commission. Those criteria are:
• the communication must originate in confidence that it will not be disclosed;
• this element of confidentiality must be essential to the full and satisfactory maintenance of the relations between the party;
• the relations must be one which in the opinion of the community ought to be fostered; and
• the injury that would incur to the relations by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
The Commission has provided no evidence or proof that there is any infringement or how the four-pronged "Wigmore" test would even apply to this situation. There are no submissions on how, for instance "the element of confidentiality must be essential to the full and satisfactory maintenance of the relations between the parties."
In much of the disclosure, the redactions are to remove the names of police officers, or other government officials, acting in their official capacity as police officers or government agents. In fact, on page 4 of 13 -- the slightly “less redacted” pages regarding a Sec. 13 action plan and dated April 29, 2005, Harvey Goldbrerg's phone number and FAX number are blacked out, despite the fact that this information is readily obtainable.
The redactions are simply a way in which to harass the victims/respondent and to run up the legal bills
When a privilege is claimed by the Commission, it is its responsibility to backup that privilege and provide compelling evidence to justify the claim. Simply making blanket claims is unacceptable. To date, the Commission simply implies it might invoke some privilege, and the Tribunal, puts the burden on the victim/respondent
If the Commission wants to claim some sort of privilege, it is up to them to demonstrate why they are claiming the privilege and then up to the Tribunal to review the material in question and determine if the claimed privilege applies.
This "maximum disruption" techniques beloved of the long absent
The Tribunal needs to step in and assert its authority over these proceedings. It has now become so lopsided, that
The Commission states: "There is nothing to be added to the respondent's case by identifying individuals or their private information." That is nothing more than conjecture not supported by any facts or argument. Why, for instance, on the April 29, 2005 e-mail from John Chamberlin, mentioned above, are the names of two of the seven persons to whom it was sent redacted in this less blacked out disclosure? The names of recipients Dean Steacy, Harvey Goldberg, Kathleen Fawcett,
The Act dictates to the Tribunal that a full and ample hearing has to take place. With the late and heavily censored disclosure, the victim/respondent is so severely prejudiced, it is nearly impossible to allow for a "full and ample" opportunity for him to make his case, and the Act dictates.
Full disclosure
These games by
Since the Commission seems unable to properly look through its files in a way consistent with orders from this tribunal, CAFE demands full access to the CHRC's Section 13 files, so that a proper and through search can be completed.
ORDERS REQUESTED:
1. An Order for all documents, e-mails, correspondence, and anything else related to: Users Accounts: "jadewarr" on FreeDominion, "jadewarr" on Stormfront, "jadewarrior" on Stormfront, "oldens Revenge" on Stormfront, "odens revenge" on Stormfront, "jadewarr" on AOL, "jadewarrior" on Vanguard News Network Forum, "jadewarr" on "Recomnetwork" and to e-mail addresses: jadewarr@yahoo.ca, oldensrevenge@gmail.com, jadewarrior@execulink.com, odensrevenge@gmail.com, hanoushi@yahoo.com
2. An Order for all documents in which Section 37 was claimed to be given to all parties, in their complete form (not redacted). This includes the late disclosure from the first hearing day, and all disclosure of the Commission in which Section 37 was invoked.
3. An Order for all documents in the recent April/
4. That the Tribunal dismiss any claims of "Wigmore" privilege and/or privacy
5. An order that the closing argument dates be postponed to a later date in the Autumn.
All of which is respectfully submitted.
Sincerely yours.
Paul Fromm
Director
(modified from it’s original)
