Canadian Association for Free Expression
Ph: 905-274-3868; FAX: 905-278-2413
Paul Fromm, B.Ed,
Canadian Human Rights Tribunal
re: CHRT File: T1073/5405 . Richard Warman and the Canadian Human Rights Commission v
Fax: 613 995-3484
I write in response to Barbara Kulaszka's motion of May 5, seeking:
1. "An order that the Commission disclose the documents in their original form, with no redactions or, in the alternative, claim a specified privilege;
2. An order that the written submissions and final arguments be rescheduled to a later date to allow the respondent to obtain disclosure or documents in their original form and to apply to file the documents as exhibits."
In her motion on behalf of Respondent/victim
1. In light of the massive volume of the recent disclosure (400 pages, with much material missing) and the demand that it be resubmitted in an unredacted form, we recommend setting deadlines in the Autumn.
2. The new disclosures, most of them material in the possession of the Commission when the Tribunal made a specific disclosure Order, August 16, 2006, clarifying material that must be produced, raise important questions about Commission spying and deceit in its "investigations" of alleged "hate" on the Internet. As well, they raise serious questions about the co-operation and information exchange between certain police departments and the Commission in regards to respondent/victims.
This information strongly suggests the calling of certain persons as witnesses or the re-call of previous witnesses. CAFE wants the hearings re-opened to accept new evidence.
These hearings are governed by rules. Repeated and calculated failure to follow the rules must have consequences. It is our submission on the constitutional question that these proceedings are already cryingly unfair to respondent/victims because, inter alia, there are virtually no defences.
The very least a respondent/victim should be able to hope for is procedural fairness. There is an obligation of continuous disclosure under Tribunal rules 6(1) and (4). Disclosure by the Commission has been a live issue throughout these proceedings. The Tribunal's August 16, 2006 ruling clarified the Commission's obligations and set a deadline.
There must be consequences for the flagrant abuse of the respondent/victim's right to full disclosure. The conduct of the respondent/victim's case and certainly the witnesses that CAFE as an "interested party" might call are significantly altered by these last minute, albeit woefully incomplete disclosures..
Disclosure surely means disclosure -- a full revealing of arguably relevant material.
There are, for instance, 12 pages FAXed by
It's outrageous that the CHRC would make such late disclosure. This late and very partial disclosure has caused such severe prejudice to the respondent/victim
This disclosure by ambush technique has been used multiple times, in my experience before this and other Tribunals, and the Tribunal has allowed the CHRC to continue. On the first day of the Lemire hearing, there were hundreds of pages of material, that were dropped on
The tribunal said these were fundamental issues with regards to failure of disclosure, yet chose to force the hearing to proceed.
Then again after Harvey Goldberg testified, the CHRC disclosed hundreds more pages that were all very relevant to the questioning of Goldberg. Again the Tribunal said nothing about this clear abuse of the process. The CHRC's refusal to disclose material in a timely fashion made a farce out of
Now with only a week to make closing arguments, another 400 pages are disclosed by the CHRC, documents which for the most part relate to events in 2002 and 2003.
There can be no justification for the CHRC's ignoring the Tribunal's August 16, 2006 ruling. The CHRC after claiming in numerous letters that the material ordered disclosed was not relevant, asserted that they were not going to give it over to the respondent. Then, the Tribunal had to step in and order the CHRC to disclose this material. Yet, almost two years passed before much of this material was given over, almost as an afterthought. Conveniently, this disclosure came, after the respondent/victim's witnesses had testified, where these documents could have been presented to the witnesses and and they questioned on their contents.
The failure of timely disclosure is especially galling as
This gross violation of Tribunal rulings is fundamental and needs to be remedied by the Tribunal.
As usual, the disclosure is blacked out and redacted so often, the real meaning of the documents at times are lost. No privilege has been claimed. This pervasive secrecy and calculated non-"disclosure" now forces the respondent/victim again to the cost of more letters demanding the CHRC follow the rules. This is totally unacceptable.
In fact, the Tribunal even took the extraordinary step of sending Rule 6 of the act around to the parties, in hopes that this situation would not happen again. It is an utter disgrace that the Tribunal is allowing the CHRC to run up
Had the Tribunal taken the necessary steps back when the CHRC first pulled its refusal to disclose stunt, we might well have been able to have had an orderly hearing and the case could have been over.
But the CHRC chose this path to take. They chose to withhold relevant documents that were ordered disclosed. They chose to ignore the orders of this Tribunal, and, as a result, have severally prejudiced the respondent/victim's case. In fact, an access to information request would have forced the CHRC to do proper searches of their files, instead of the most narrow one they chose to do, in violation of the Tribunal's orders.
The Tribunal should set new dates for the CHRC to make full and proper disclosure, and then, at the time the proper disclosure has been made, it should hold a conference call with the parties and work out any outstanding issues. At that time, dates for the further hearings and closing arguments in this case can be examined.
There is no prejudice in having the closing arguments at a later date. The complainant has abandoned the proceedings. He has not ever submitted that the hearing needs to be completed soon. The CHRC on the last conference call suggested the fall would work for them.
And with the recent application for" interested party" status of a very well respected organization, a delay would benefit all parties for new dates to complete the closing argument.
The CHRC's failure to make timely disclosure has to be remedied. There must be consequences for the CHRC's calculated, persistent and systemic failure to disclose material fully and in a timely fashion.
Therefore, I reiterate:
1. CAFE's support for
2. CAFE's support for a suspension of deadlines until at least the Autumn; and
3. CAFE's demand that the hearings to re-opened to hear further testimony occasioned by the material in the last minute disclosures or that may be revealed in the unredacted disclosures that we trust will be ordered by the Tribunals.