Saturday, May 3, 2008

Canadian Constitution Foundation Seeks Intervener Status in Lemire's Constitutional Challenge of Section 13

Canadian Constitution Foundation Seeks Intervener Status in Marc Lemire’s Constitutional Challenge of Section 13


CCF wants an end to the censorship of the Canadian Human Rights Commission


On May 1, 2008, the Calgary based, Canadian Constitution Foundation (CCF) has applied for Interested Party status to support the constitutional challenge filed by Marc Lemire against Section 13 of the Canadian Human Rights Act.  Mr. Lemire’s motion, written by the brilliant and courageous Barbara Kulaszka – seeks to toss out Section 13 as a violation of freedom of expression, freedom of the press, freedom of conscience. A pdf of the constitutional argument can be found > here <.

 The CCF in it’s application written by counsel Desmond P. Burton-Williams, sets out several key arguments which highlight why Section 13 is totally unconstitutional and needs to be removed from Canadian law books.  One of their key arguments is that Section 13 is nothing more than a quasi-criminal statute without any of the protections of criminal legislation.  As well Section 13 is vague and impossible to apply unless the trier of fact speculates as to the cause and effect of speech.


PDF of the CCF's Motion available HERE


Key points by the CCF of the motion to intervene are:

  'The Foundation is a citizen-based organization with supporters across Canada . … The Foundation is governed by a board of directors which includes lawyers, a law professor, and other professionals. Our Advisory Board includes Eugene  Meehan, Q.C. and other prominent Canadians.  The Foundation has been actively involved in supporting public interest litigation being conducted by such distinguished counsel as William McIntyre, Q.C., and D. M .H. Goldie, Q.C.

The Foundation is a credible, trustworthy and objective organization that has expertise and a unique perspective on the application of the Canadian Constitution and the ideals expressed therein, including its essential characteristic: that the Constitution of Canada is the supreme law of Canada, and any law, government measure or common law principle that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.


Submissions to be made by the Foundation

This challenge directly involves important constitutional principles, including jurisdiction and the clarity of legislation. Understanding these issues and acting within their prescribe boundaries allows for governance without unnecessarily intruding into the rights of citizens. The resolution of these issues allows government to be effective in what it does by establishing clarity of purpose while eliminating dueling and competing public activities and actors. Generally speaking this leads to efficiency in government while securing the liberty of Canadians.

The Foundation will argue that Section 13 of the Canadian Human Rights Act mirrors Section 319 of the Criminal Code of Canada and thereby places the Tribunal in the unintended position of acting as law enforcement and the court as they relate to criminal matters. Enforcement of Section 13 of the Canadian Human Rights Act by the Tribunal has the effect of finding one liable for an indictable offence minus the indictment, as the ability to lay an indictment falls only within the jurisdiction of the Crown. This instance of jurisdictional trespass by the Tribunal leaves law enforcement and the courts confused as to where their respective jurisdictions lie. The application of Section 13 also has the effect of leaving the public in a state of ambiguity with respect to the criminal status of persons charged under it.

The Foundation will argue that the wording of Section 13 as it relates to '"persons being exposed to racial hatred" as a result of speech is not only vague, but difficult if not impossible to apply unless the trier decides to speculate as to the issues of cause and effect. The offense dealt with by Section 13 of the Canadian Human Rights Act is identical to an indictable offense as described in the Criminal Code of Canada. The standard of proof as prescribed in criminal law is very high in keeping with the stigma effect of a criminal conviction. By contrast the standard of proof for the Tribunal is far lower, yet the effect of being found to be a "bigot", as a finding of Section13 liability does, would inevitably follow.

The Foundation will argue that the Tribunal has not been authorized to usurp the criminal law powers of the state, and that laws that are vague ought to be declared void for being such, in keeping with established precedent.

The Foundation will take the position that, to the extent that any limitations placed on freedom of expression by Section 13 of the Canadian Human Rights Act infringes upon constitutional rights, and that due to the aforementioned flaws in its application as well as its composition, the infringement cannot be justified under Section 1 of the Charter.


The Interest of the Foundation in These Proceedings  

The Foundation has a legitimate interest in the issues raised by this application. As stated above, the impugned statute allows the Tribunal to act in a manner that violates the constitutional rights of Canadians, and to do so with sweeping powers and dubious authority.

The Foundation is gravely concerned that arguments advanced by Richard Warman, if adopted by this Tribunal, will result in the Canadian Human Rights Commission having the ability to violate the Constitution with impunity and without consequence. The Foundation submits that remedies to the aims sought by Section 13 of the Canadian Human Rights Act already exist in the Criminal Code of Canada and can be derived from the realm of public debate, where it constitutionally belongs.


The Foundation’s Unique Perspective

Our Foundation brings a unique perspective and approach to the issues raised in this application, and has a broader interest in these proceedings than the specific interests being pursued by the respondent. We will not duplicate the submissions of Mr. Warman, Mr. Lemire or of the other interveners.

The Foundation is not clouded by personal, social or political agendas in its understanding of the Canadian Constitution. Rather, it brings clarity of purpose to any constitutional debate by promoting the ideals expressed in the Constitution itself without reference to extraneous considerations



Desmond P. Burton-Williams


Canadian Constitutional Foundation



PDF of the CCF's Motion available HERE


  This application for Intervener Status by the Canadian Constitutional Foundation has been made to the Canadian Human Rights Tribunal.  The next steps are for the parties to make submissions on this application.  Finally the Tribunal will decide.

Closing arguments in the Lemire Constitutional Challenge are fast approaching, and even with the CHRC just today ( May 2, 2008) disclosing another 400 pages of highly relevant documents, (which they were *ordered* to disclose back in 2006 - Specially [43] L),  the Tribunal seems to be guided by external forces which are dictating that this case will be over no matter what happens within the next few months.

The Tribunal has it’s marching orders from above, and those orders are to stop the absolute demolishing of the CHRC by Barbara Kulaszkaby any means necessary…  Fairness, truth or justice be damned!

Please watch the Freedomsite for updates on the CCF’s application for Interested Party status, and those who are members of the CCF should send in a letter of appreciation.

But the big question still remains.. where is Borovoy and the Canadian Civil Liberties Association.  He has been getting press from coast to coast talking about the CHRC,  but where is he?   In they won’t intervene at the most important juncture on a serious challenge of the validity of Section 13..   IF NOT NOW…. WHEN?



Groups, Writers and MPs that Support a Repeal of Section 13:


Liberal MP Keith Martin

Liberal MP Dan McTeague

Conservative MP James Rajotte

Conservative MP Bruce Stanton

Ezra Levant

Canadian Broadcasting Corporation (Rex Murphy)

Catholic Insight Magazine

Catholic Register

Halifax Chronicle Herald (Paul Schneidereit)

PEN Canada

CDN Association of Journalists

Mark Steyn (Macleans Magazine)

Calgary Herald

Western Standard Magazine

London Free Press

B'nai Brith Jewish Tribune

Sask Leader-Post

Deborah Gyapong

Calgary AM 770  

Lawyer Karen Selick

Globe and Mail

National Post

David Warren (Ottawa Citizen)

Eye Magazine (Toronto)

Toronto Star

Toronto Sun

Interim Magazine

Sault Ste. Marie – SooToday

Winnipeg Free Press

Oak Bay News

Victoria News




Constitutional Challenge of Section 13





Support Marc Lemire's Constitutional Challenge


Be part of our team and contribute what you can to defeat this horrible law 

and protect Freedom of Speech in Canada !


·         Via Mail: Send Cheque or Money Order to:

Marc Lemire

152 Carlton Street 

PO Box 92545 

Toronto, Ontario 

M5A 2K1