Wednesday, May 7, 2008

CAFE Demands that CHRC's Culture of Secrecy & Late/Partial Disclosure Have Consequences!

Canadian Association for Free Expression

Box 332,

Rexdale, Ontario, M9W 5L3

Ph: 905-274-3868; FAX: 905-278-2413

Paul Fromm, B.Ed, M.A. Director

May 6, 2008

Canadian Human Rights Tribunal

160 Elgin Street

11th Floor,

Ottawa, ON.,

re: CHRT File: T1073/5405 . Richard Warman and the Canadian Human Rights Commission v Marc Lemire

 

Attention: Carol Ann Hartung, Registry Officer

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 Marc Lemire, she suggested a new summer or Autumn deadline.

CAFE adopts Miss Kulaszka's submissions. However, we would go further:

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.

Ms Blight's almost casual admission during the March 25, 2008 hearing that the Commission's policy had, until that date, been not to disclose spy operations run by the Commission against victim/respondents or to reveal subterfuge communications between Commission personnel and the respondent/victims, spoke volumes about the Commission's studied contempt for the Tribunal's Rules and rulings.

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.. Mr. Lemire's right to fundamental fairness, both on the merits of the complaint, and for his effort to advance the constitutional challenge are fatally impaired by this egregious hiding of information, failure to disclose and failure to disclose in a timely fashion.

Disclosure surely means disclosure -- a full revealing of arguably relevant material. Much of the material casually and only very partially disclosed at literally the very last minute in these proceedings is almost laughable in its incompleteness.

There are, for instance, 12 pages FAXed by Ms Blight of what appear to be some e-mails between someone in the Winnipeg Police Department and Harvey Goldberg and Dean Steacy. So heavily whited out or blacked out are these non-disclosures that, on page 7 of 12, only two subject lines and two dates and one lonely sentence -- "I don't know if there is any truth to this" (the sender and recipient, of course, blacked out) -- appear. This is not disclosure. This is studied contempt of the respondent/victim's right to know.

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 Mr. Lemire, that upon appeal, this denial of natural justice alone would be a central issue unless remedied by the Tribunal now.

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 Mr. Lemire's desk. That was totally unacceptable. The CHRC had close to a year to make the disclosure by then and chose not to.

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 Mr. Lemire's right to conduct a proper examination of witness Harvey Goldberg.

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 Mr. Goldberg seemed to have seriously flawed memories unless confronted with a specific document. That crucial opportunity and right has been strategically denied to the respondent/victim by this late and untimely disclosure.

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 Mr. Lemire's bills. He is a poor respondent/victim who, under the lopsided and unfair rules of the CHRA, will never be able to recoup his costs.

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.

This case is watched by many in the media, numerous politicians like Liberal MP Dr. Keith Martin and even other cases at the Federal Court of Canada. The fairness of the Tribunal is a central issue.

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 Miss Kulaszka's motion to order the CHRC to provide unredacted disclosure of the documents recently submitted;

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.

 

Sincerely yours,

 

Paul Fromm

Director