Thursday, March 20, 2008

Barbara Kulaszka hammers CHRC request for a Secret Hearing

 

March 20, 2008

 

 

TO: Canadian Human Rights Tribunal,

160 Elgin St., 11th Floor,

Ottawa, ON K1A 1J4

 

Attention: Ms. Carol Ann Hartung, Registry Officer

 

Re: Warman v. Lemire, Tribunal No. T1073/5405

 

To the Tribunal:

 

 

I have the submissions of Ms. Blight concerning whether the proceedings on March 25th should be opened to the public and wish to make this reply.

 

Ms. Blight refers to the ruling of the Tribunal on May7th, but I believe she means the ruling made on May 9th, the first day of the hearings in Ottawa. That was the ruling that governed the hearing and which remains in effect. The ruling was that the witnesses’ testimony would be heard in camera with no cameras allowed. The Tribunal refused to make an order that a description of the witnesses not be published, after the following exchange which started at page 4397:

 

11 MR. DUFRESNE: If I may, I would like

12 to clarify one issue. We were also seeking a directive

13 that a description of the witnesses not be --

14 THE CHAIRPERSON: Descriptions.

15 MR. DUFRESNE: We have concerns, as

16 indicated in our motion, of some of these things making

17 their way onto the internet.

18 THE CHAIRPERSON: Is that essential?

19 I don't even know if I have authority to issue a

20 direction like that.

21 Can you find for me something in a

22 statute where I can issue an authority telling a person

23 what they can and cannot write about afterwards?

24 MR. DUFRESNE: In our submission, it

25 is in 52. It is the preamble to 52, which states that

4398

1 the member or panel conducting the inquiry may take any

2 measure and make any order that the member or panel

3 considers necessary to ensure the confidentiality of

4 the inquiry.

5 This is a directive to the parties.

6 You could order an in camera hearing,

7 and nothing would go out to the world.

8 THE CHAIRPERSON: Yes, because it's

9 in camera. Because it's within my confines.

10 MR. DUFRESNE: But, presumably,

11 parties to an in camera hearing couldn't go outside and

12 disclose what took place, either --

13 THE CHAIRPERSON: That's true.

14 MR. DUFRESNE: -- and it's in the

15 same sense what we are asking.

16 It is very limited: No description

17 of the visual appearance.

18 THE CHAIRPERSON: Can I have an

19 undertaking, Ms Kulaszka, that you won't go writing

20 someplace what these people look like?

21 MS KULASZKA: My position is that it

22 is virtually unenforceable. Unless there is something

23 very, very different about these two people --

24 She is blonde. She is five-foot-six.

25 Ms Joyal could -- well, she is not

4399

1 five-foot-six. I don't know how tall Ms Joyal is.

2 It is unenforceable.

3 THE CHAIRPERSON: It is. It is

4 almost making a travesty of my process. I will not

5 issue that kind of directive. I'm sorry.

6 They probably never thought about it

7 until you mentioned it. Now, watch, they are going to

8 write up, "Blonde, five-foot-six." They never would

9 have thought to put that in.

10 There is no indication that any of

11 these individuals have done anything like that. The

12 only photos that we have from this hearing, Mr.

13 Dufresne, are of themselves, calling themselves the big

14 defence team.

15 We need some context.

16 I am prepared to go this far because

17 of the bigger picture that you have raised, although

18 Mr. Fromm has raised some objections on that point,

19 which I hear him on.

20 I am going that far, but please --

21 MR. VIGNA: Mr. Chair, I want to

22 remind you that there are photos of judges and members

23 of the Tribunal --

24 THE CHAIRPERSON: Yes, there are.

25 MR. VIGNA: -- not just photos of

4400

1 themselves.

2 THE CHAIRPERSON: Mr. Vigna, who is

3 more exposed here with the allegations that have been

4 made in your motion? You and I and all of the other

5 members of the Tribunal.

6 And we haven't been immune. I read

7 that article. The article went right to the core of

8 what is going on in this room -- that little story, the

9 fictional one. But yet we move on, we go on.

10 MR. DUFRESNE: On that basis, Mr.

11 Chair, we are prepared to proceed with, essentially,

12 two of the requests that we made, the in camera and the

13 measures with respect to cameras.

14 I want to state for the record that,

15 while all of our requests have not been addressed, the

16 Commission takes the security of its staff very

17 seriously. Unlike Commission counsel, who, by the

18 nature of their work, are going to be exposed to public

19 scrutiny, Commission investigators do not have similar

20 functions.

21 As a result, we have taken a strong

22 position on that, but we accept the Tribunal's ruling

23 on that basis.

 

At that point, I requested that the Commission rescind its certification under s. 37 of the Canada Evidence Act which the Commission had served the previous day with respect to the visual appearance of the witnesses at p. 4401:

 

2 MS KULASZKA: Could they rescind

3 their section 37 certification for the record?

4 THE CHAIRPERSON: On the assumption

5 that we are proceeding on that basis?

6 MR. DUFRESNE: We rescind, again, for

7 the purpose of their testimony, but we reserve our

8 right to invoke it for questions.

9 MS KULASZKA: Thank you.

 

The Commission withdrew its section 37 CEA objection and accepted the ruling of the Tribunal refusing to make an order banning persons present from writing a description of the witnesses.

 

The Commission now renews this request for such an order. It is respectfully submitted that it has brought no new arguments about how this order would be enforceable or whether this Tribunal has such jurisdiction outside the confines of the hearing room.

 

Further, it provided evidence of only two threads from Stormfront message board where the fact that Mr. Steacy is blind was mentioned, primarily in an account by Paul Fromm of the hearings in May. This account merely mentioned the fact in passing. In the two threads, only one or two posters mentioned his blindness. Even though this case has been discussed extensively on the Internet, the Commission could bring not one other instance of a further description of the witness.

 

The fact is that in the Internet community, Mr. Steacy’s blindness has been of virtually no interest. The interest is in the case, the evidence and its implications for bloggers and webmasters and freedom of speech and conscience.

 

The Commission produces evidence (minus the URL and any identifying markers which should have been on the bottom of each page) of one poster on a message board who is obviously angry. If this is all it takes to exclude the public from a hearing dealing with matters going to the fundamental constitutional rights of Canadians on the Internet, then there is every reason for persons to assume false identities to post up threats.

 

This Tribunal has consistently upheld the principle that its hearings must be open to the public, even in extremely personal and sensitive cases such as sexual harassment. In Bouvier v. Metro Express, 1992 CanLII 1429 (C.H.R.T.), the Tribunal held, in response for a request that a hearing be held in camera:

 

One final point of a procedural nature should be noted before we
proceed.  At the beginning of the hearing, counsel for Loomis asked that
the matter be heard in camera.  Counsel for the Commission had no objection
to this request, nor did the respondent Lacroix.  The Act does permit a
tribunal to order that a hearing be in camera, as follows:

Sec. 52. A hearing of a Tribunal shall be public, but a Tribunal may
exclude members of the public during the whole or any part of a
hearing if it considers that exclusion to be in the public interest.

In view of how important it is that the judicial process in our
society be public, and particularly in the area of human rights where the
educational aspect of the process plays a leading role, and in view of the
decisions in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R.
175 and Edmonton Journal v. Alberta, 1989 CanLII 20 (S.C.C.), [1989] 2 S.C.R. 1326, we refused the
request by Loomis that the hearing be held in camera.  As Madam Justice Wilson noted in the latter  case, which dealt with the public nature of trials in separation and  divorce cases, it is sometimes necessary in the interest of all the parties
for even the intimate and delicate details of their marital life to be
disclosed:

But in addition to the interest of the public at large in an open
court process there may be compelling arguments in its favour related
to the interests of litigants generally.  Many may feel vindicated by
the public airing of the injustices they feel they have suffered alone
and without any support in the community.  Indeed, this may be the
first time that a spouse is able to speak openly about events that
have taken place in the privacy of the home.  They may welcome the
public endorsement for what they have suffered in private ignominy
.
(p. 1361)

Marc Lemire has been accused of being a racist, Nazi, hate-monger, anti-Semite, White Supremacist etc. in these hearings.  The primary allegations are based on postings made by other people on a message board. It is extremely important to him that what the Commission has been doing is revealed in a public hearing. Marc Lemire “may feel vindicated by the public airing of the injustices [he] [has] suffered alone and without any support in the community.”

 

Many people have been found by the Canadian Human Rights Tribunal to have posted discriminatory hate messages on message boards, particularly Stormfront. It now has been revealed that Dean Steacy was a member of Stormfront and posted there.  It is already known that Richard Warman, who was the complainant in all of the cases against these persons, was also a member of Stormfront and posted messages which even the Commission itself has acknowledged violated section 13. It is now known that Sgt. Stephen Camp, a police officer, was also a member of Stormfront and posted racist messages.

 

What is being revealed here is shocking and goes to the root of the findings in many Tribunal decisions in cases brought by Richard Warman.

 

The Tribunal must not underestimate the implications of the disclosure which has already been made.

 

This evidence, to preserve the integrity of this Tribunal, must be heard in public.

 

Yours truly,

 

Barbara Kulaszka