Wednesday, May 14, 2008

CAFE Motion for: Ruling on May 8th, 2008 motions. Postpone Closing Argument, Additional Witnesses and Reasonable Apprehension of Bias

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: 

[1] On May 8th, 2008, CAFE made a motion to the Tribunal requesting: 

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” 

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 regards to 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 by the Commission in which Section 37 was invoked. 

3:  An Order for all documents in the recent  April/May disclosure to be in their unredacted form.  In the alternative, an order to direct the Commission to specify a privilege on each and every redaction and to submit unredacted copies to the Tribunal, for a ruling on a per-instance basis. 

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.

Motion of CAFE – May 8th, 2008 
 

[2] The Tribunal has totally avoided this motion and has not set dates for submissions on these most critical orders requested.  This is unacceptable. 

[3] The ruling of yesterday’s date by Member Hadjis refuses to deal with the issues requested, and I am writing to request a full ruling on the CAFE motion of May 8th, 2008 along with the further requested items from the following motion. 

Motion to postpone closing argument dates and to call additional witnesses and to argue Apprehension of Bias 

[4] This is a motion by the interested party – The Canadian Association for Free Expression for:  

  • A ruling by the Tribunal of the May 8th, 2008 Motion by CAFE
  • That dates for closing argument  should be postponed until the Commission makes full disclosure as per the rules of this Tribunal and until the outstanding issues be ruled on by this Tribunal (as well as any Judicial Review applications)
  • Leave to allow CAFE to update its Statement of Particulars dated April 24, 2006 to modify Para. 44,  and to  call witnesses to address the extremely late disclosure of the Commission
  • Member Hadjis recuse himself for apprehension of bias or an appearance of bias

 
 Postpone Closing Argument 

[5] On May 12, 2008, the Tribunal ordered that the closing arguments on the constitutional question should be delivered on June 9, 2008 and that the submissions of the interested parties be delivered by June 25, 2008. 

[6] Given the extremely late disclosure by the Commission of over 400 pages, this is a completely impractical and a clear violation of Natural Justice, to which this Tribunal is bound.  Natural Justice is not at the whim of this Tribunal, but rather IS THE law to which this Tribunal is must adhere. 

[7] Because the Commission chose to disclose these very important documents at this late stage, because more disclosure is promised and because many of the documents disclosed have arbitrarily been redacted, no date for final submissions should even be considered until the current outstanding issues are dealt with.   These include:

    • CAFE motion of May 8th, 2008,
    • and the requests of Ms. Kulaszka on May 5th and May 8th, 2008.

 At such time as the duty of the Commission is fulfilled, a conference call should be convened and appropriate dates for further hearings be scheduled.  

[8] The Canadian Human Rights Act is clear: 

48.9   (1) Proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow. 

[9] This Tribunal is bound by Natural Justice, which dictates a full and ample hearing of the evidence. 

[10] Rule 6 of the Rules of Procedure is clear, and the Commission has been in violation of the most basic rules of the Tribunal dating back to August, 2006.  It had ample time to make the disclosure of these documents, yet chose to ignore the rules and orders of this Tribunal.

[11] Natural Justice dictates to this Tribunal that the respondent be allowed to fully make his case with all the evidence available.  With the Commission choosing to simply ignore the rules; it is at fault for delaying this hearing for close to a year.  But the respondent in NO way at all should be made to suffer for their divisive, delaying and abusive tactics. 

[12] The respondent has a full right to present his defence, a right   which this Tribunal can simply not just ignore because of some self-imposed deadline and declare that “this case is over”   It’s not over.  The respondent clearly never closed his case, especially when he commenced a Judicial Review with the Federal Court of Canada to challenge the absurd claims of Section 37 of the CEA

[13] This Tribunal has a binding duty to uphold Natural Justice, and not peremptorily close the evidence of the respondent, because the Tribunal wants to “get the case over”.   Member Hadjis repeated that the case was “closed” so many times, that is became a mantra. This behaviour was mocked by well respected media, including Maclean’s Magazine and the National Post

 

As for the judge, Athanios Hajdis was brisk but impatient. He knows how he's going to rule, and he appears eager to add Marc Lemire to the mound of Section 13 losers. "We're done," he said at several points during the day. I don't get the impression he's planning on letting Mr Lemire buck the 100 per cent Section 13 conviction rate.

Macleans Magazine | March 26, 2008

 

According to several blog reports, the Tribunal chair, Athanasios Hadjis, was visibly impatient, repeatedly saying "this case is closed". In real courts, it's up to the two sides to announce "we rest our case," not for a bored judge to merely declare it. But don't bother Hadjis with such trifles. He's not a judge, so why should he pretend to act like one?

Ezra Levant  March 27, 2008

[14] The interested party CAFE demands that the dates for closing argument be  postponed until the Commission makes full disclosure as per the rules of this Tribunal and the outstanding issues be ruled on by this Tribunal (as well as any Judicial Review applications) 

Additional Witnesses 

[15] The interested party – Canadian Association for Free Expression would like to modify its witness list at Para. 44, as follows: 

WITNESSES 

44. At this time, the interested party – Canadian Association for Free Expression proposes calling the following witnesses: 

Alexan Kulbashian – To testify on the recent police disclosure of the Commission.  To testify on apprehension of bias motion (RE: HADJIS) and to testify about his dealing with the Commission and Tribunal. 

Richard Warman – To give testimony of all disclosure since February , 2007 after the last day of his testimony in case Tribunal No. T1073/5405. 

Harvey Goldberg – To testify about all disclosure given by the Commission after his June testimony 

Dean Steacy – To testify about all disclosure given by the Commission after his last testimony of March 25, 2008  

Sandy Kozak – An investigator with the Commission, will testify about the complaints process, Section 13 hate guidelines, defences to Section 13 complaints, and Commission investigative techniques. 

John Chamberlin – A manager of investigations. Will testify about the complaints process, Section 13 hate guidelines, Commission investigative techniques, what rules and regulations investigators govern investigators and what oversight he had over investigators. 

Lilly Luan and other assistants used by Mr. Steacy – To give testimony on what access they had to the “Jadewarr” account and if they accessed the account outside Mr. Steacy’s presence. In the particular case of Lilly Laun, to discuss her relationship with Nelly Hechme of Laurier Ave W, in Ottawa, Ontario

The interested party Canadian Association for Free Expression reserves the right to add further witnesses pending the provision of proper disclosure from the Commission. 

[16] The grounds for this request are the extremely late and incomplete disclosure by the Commission and the need to remedy this fact in accordance with the Tribunals Rules of Procedure and Natural Justice. As well, the ridiculous obstruction by Mr. Steacy by not bringing his assistant on March 25, 2008.  This forced counsel to read every word she was putting to the witness, and thus, curtailed the number of questions she could ask within the Tribunals imposed one day to examine three witnesses. 

[17] The late disclosure came in three different waves, all in contravention of the Tribunals own Rules of Procedure

[18] The first was the disclosure – AFTER Harvey Goldberg testified in June, 2007.  CAFE wants to put the documents to Mr. Goldberg.  These number over 300 pages in total.  A portion of these have been put into evidence, but the Respondent has been unable to be put them to the witnesses. These documents will be put to Mr. Chamberlin, Mr. Warman and Ms. Kozak. 

[19] The second is the disclosure of Dean Steacy – AFTER his testimony of March 25, 2008.  The Commission has now admitted these should have been disclosed earlier, and to remedy this, the witness Dean Steacy should be recalled to be questioned on these documents. These documents will be put to Mr. Goldberg, Mr. Warman, Mr. Chamberlin and Ms. Kozak. 

[20] The third is the disclosure of April/May, 2008 by the Commission of another 300 pages of highly relevant material.  These documents will be put to Mr. Steacy, Mr. Warman, Mr. Goldberg, Mr. Chamberlin and Ms. Kozak. 

[21] The interested party – Canadian Association for Free Expression requests an Order to issue subpoenas to  these witnesses and  leave to amend the Statement of Particulars for CAFE. 
 
  

Apprehension of Bias 

[22] During the course of this hearing, Member Hadjis has acted inappropriately numerous times, which brings about this reasonable  apprehension of bias application, demanding Member Hadjis recuse himself. 

[23] Recently, due to Internet searches, it has come to the attention of  CAFÉ that member Hadjis has on numerous occasions worked with the Canadian Jewish Congress, who have received Interested Party Status in these proceedings over the vigorous objections of the Respondent. 

[24] On November 26, 1997, Athanasios Hadjis issued a joint press release with the Canadian Jewish Congress denouncing Jacques Parizeau, claiming that Mr. Parizeau “blame[s] particular communities around the result of a democratic process” Mr. Hadjis went on to say that "such an attitude is irresponsible as it contributes to the exacerbation of tensions within our society.".  The Canadian Jewish Congress states in its press release that the CJC and Mr. Hadjis’s Hellenic Congress of Quebec are a “coalition” 

[25] The Canadian Jewish Congress has received interested party status in this case, granted by Member Hadjis.

[26] The fact that Member Hadjis has worked closely with one of the Interested Parties in this case is of great concern to CAFÉ, and this fact should have been revealed when the Canadian Jewish Congress was seeking interested party status.  In fact it was Member Hadjis’s duty to inform all parties of this potential conflict of interest and accept submissions on this matter. 

[27] How impartial can Member Hadjis be, when his former “coalition” partner is an interested party on a case he is sitting on?  Is this the real reason why Member Hadjis repeated close to 7 times on March 25, 2008 “the case is over”?  With the hundreds of outstanding pages concerning the Canadian Jewish Congress; is this the real reason why suddenly there is a major rush to end the case, and not allow the respondent and interested party the ability to cross-examine Harvey Goldberg on the recently disclosed documents which mostly relate to the Canadian Jewish Congress? 

[27] Natural Justice dictates that justice must be done, and must be seen to be done.  Not revealing a close working relationship with the Canadian Jewish Congress, while sitting on a case where the Canadian Jewish Congress has intervened, and dozens of documents on the Canadian Jewish Congress are suddenly not allowed to be put to witnesses  raises an unreasonable apprehension of bias or an appearance of bias, which leads to an unfair hearing. 

[28] The bias of Member Hadjis is simply compounded by the recent ruling of this Tribunal. During the course of the hearing, Member Hadjis has continually forced the Respondent’s counsel to argue for the Commission’s documents. 

[29] As two recent glaring examples raise this concern about bias: 

  1. After the ruling of the Federal Court of Canada, member Hadjis put ALL the work onto the Respondent’s counsel to argue why the hearing should proceed, when it was clear it was the Commission’s objections that lead to the Judicial Review in the first place.  The Commission had carriage of their objection, yet member Hadjis put all the work on the respondent.
  2. After the Respondent highlighted a clear abuse of the disclosure obligations by the Commission, the tribunal then ordered the Respondent’s counsel to send to the tribunal the documents in question.  As it was clearly stated the respondent and CAFE the documents were blacked and whited out, therefore the Tribunal could not make any appropriate decision on the redactions without seeing the originals.  But instead the Tribunal put it on the Respondents counsel to do all the work.

 

[30] This is completely inappropriate and an abuse.  The Tribunal is well of Mr. Lemire’s precarious financial situation, from direct submissions by Mr. Lemire to the Tribunal, by constantly forcing him and his counsel to send in mountains of documents, Mr. Hadjis is, in effect, attempting to limit the defence of Mr. Lemire by draining every cent he has in hopes he will stop demanding his rights be protected. 

[31] The material disclosed belatedly by the Commission was an abuse of the Tribunal’s own Rules.  And if Member Hadjis chooses not to enforce the Rules of the Tribunal, it is clear Natural Justice can not be done, and Mr. Hadjis should recuse himself, as being unfit to hear this monumental case, with far-reaching implications for Charter guaranteed rights. 

[32] If Member Hadjis is being pressured by some party to “get this hearing over”, it should be disclosed to all parties.  It is inappropriate that any such arbitrary time-limits be imposed at the whim of the Tribunal member.  This factor alone, demands an answer from this Tribual. 

[33] The Interested Party – Canadian Association for Free Expression will be calling Alexan Kulbashian in support of this motion.  Please set dates for hearing of this evidence. 

[34] Because this motion involves the sitting Member, we request that another member be assigned to rule on this portion of the motion. 
 

Orders requested: 

  1. A full ruling by the Tribunal on CAFE’s motion of May 8th, 2008.  This includes:

A:  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”

E-Mail Addresses: jadewarr@yahoo.ca, oldensrevenge@gmail.com, jadewarrior@execulink.com, odensrevenge@gmail.com, hanoushi@yahoo.com 

B: An Order for all documents in relation to  which Section 37 was claimed to be given to all parties, in their complete and unredacted form.  This includes the late disclosure from the first hearing day, and all disclosure of the Commission in which Section 37 was invoked. 

C:  An Order for all documents in the recent April/May disclosure to be in their full unredacted form.  In the alternative, an Order for the Commission to specify a privilege on each and every redaction and to submit unredacted copies to the Tribunal, for a ruling on a per-instance basis. 

D: That the Tribunal dismiss any claims of “Wigmore” privilege and/or privacy. 

E: An order that the closing argument dates be postponed to a later date in the Autumn.

  1. That the closing argument dates should be postponed until the Commission makes full disclosure as per the rules of this Tribunal and the outstanding issues be ruled on by this Tribunal (as well as any Judicial Review applications)

 

  1. The Tribunal allow an amendment of CAFE’s Statement of Particulars to allow the interested party to call: Alexan Kulbashian, Richard Warman, Harvey Goldberg, Dean Steacy, Sandy Kozak, John Chamberlin, Lilly Luan and other assistants used by Mr. Steacy.

 

  1. That a separate Tribunal member hears the motion for Reasonable Apprehension of Bias of Member Hadjis.

 

  1. That Member Hadjis recuse himself for reasonable apprehension of bias, or in the alternative to disclose all relationship with any interested parties involved in this case, including but not limited to: membership in organizations, press releases, working relationship, monies received, and conferences attended.

 

All of which is respectfully submitted.

 
  
 

Sincerely yours, 

Paul Fromm, Director