Friday, May 9, 2008

Kulaszka and Fromm hammer the CHRC on Secrecy Obsession and Hiding of Documents

Kulaszka and Fromm hammer the CHRC on Secrecy Obsession, Untimely disclosure and Hiding of Documents

 

1: Submission from Barbara Kulaszka

2: Submission from Paul Fromm

 

 

 

 

 

 

Attention: Ms. Carol Ann Hartung, Registry Officer

 

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

 

 

To the Tribunal:

 

1.      Untimely Disclosure of Jadewarr and Police Materials:

 

I have the first letter of Ms. Blight of May 7th. In that letter the Commission acknowledges that “the disclosure of the jadewarr materials ought to have been made before March 25, 2008.”

 

Hundreds of pages have now been disclosed, not only with respect to the “Jadewarr” questions, but also with respect to the police questions, which were the subject of the judicial review to the Federal Court on January 15, 2008 and the order of the Tribunal of August 16, 2006.

 

I want this Tribunal to imagine how different the examinations of Richard Warman, Dean Steacy and Harvey Goldberg would have been had this information been disclosed when it should have been disclosed, which was in 2006.

 

The prejudice is simply extraordinary. And the prejudice is not only to the respondent but also to the public interest since the public has a right to know if constitutional guarantees have been compromised. 

 

I was handed a bundle of emails of Dean Steacy’s “Jadewarr” email account on March 25, 2008 by Ms. Blight and never had the opportunity to study those documents or to question Mr. Steacy on them. I have now been provided with hundreds more documents which I should have been able to question him about.

 

I have still never received any documents about the other persona and email account revealed in his testimony that day, namely, Odensrevenge, except what appears to be registration acknowledgments.

 

I would not be protecting my client’s interests without making it clear that the only way this prejudice can be even partially alleviated, is by the recall of Mr. Steacy. The Commission acknowledges that these documents should have been disclosed prior to the hearing in March.  It cannot complain if the witness must be recalled to deal with the issues arising out of them.

 

I will be making further submissions on this after the Tribunal’s ruling with respect to the redactions.

 

 

2.      Disclosure and the August 16, 2006 Tribunal Order:

 

The Commission submits that the disclosure did not fall within the August 16, 2006 order.  That is patently ridiculous. The order stated “all documents’ and was not restricted to general files.  The police documents should have been disclosed in 2006.

 

When questions were asked of Dean Steacy regarding relations with police, the Commission claimed section 37 of the Canada Evidence Act and the respondent was forced to go to the Federal Court to obtain those answers.

 

It is submitted that the Commission is fully aware that in this particular area, the unintended effects of section 13 on the rights of Canadians have been severe and it has tried valiantly to stop this evidence from being put before this Tribunal.

 

 

3.      Redactions:

 

Proper disclosure has not been made. The Tribunal got a taste of the type of redactions made with the documents filed before it on March 25th. At that time, the Tribunal made the comment that it was up to the respondent to demand full disclosure.

 

He is making that demand now for these documents.

 

It is clear from some of the documents that material parts have been whited out. Other parts have large areas blacked out.

 

The Commission simply states that all of this relates to private information. I cannot tell from the documents is that is true and I should not have to rely on the word of the Commission.

 

Further, there can be no expectation of privacy for persons who are acting in an official capacity with police and other government agencies, nor can there be for the complainant if his name and email are included.

In L.L.A. v. A.B. [1995] 4 S.C.R. 536, the Supreme Court set out the test elaborated in Wigmore:

In a case-by-case privilege, the communications are not privileged unless the party opposing disclosure can show they should be privileged according to the fourfold utilitarian test elaborated by Wigmore (Evidence in Trials at Common Law (McNaughton rev. 1961), vol. 8, at [sec.] 2285). These criteria are:

·           (1) The communications must originate in a confidence that they will not be disclosed.

·           (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

·           (3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

·           (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. [Emphasis in bold added]

In criminal proceedings, all of these documents would be disclosed fully. There can be no expectation of privacy whatsoever when the rights of Canadians subject to proceedings under section 13 are involved and persons are acting in their official capacity. Without this first branch of the Wigmore test fulfilled, there is no need to even consider the rest.

 

The expectation of privacy cannot be applied to police officers and investigators with the Commission, carrying out official duties or any other individuals involved in these investigations.

 

And Ms. Blight cites no case law where this has been done. She had provided no authority to you to allow these redactions to stand.

 

The respondent is entitled to see the documents in their original form with no redactions.

 

This applies as well to the documents disclosed in Ms. Blight’s letter of May 7, 2007.  Overwhelmingly, the redactions have been retained. The only privilege claimed is a right to privacy.  Again, no expectation of privacy exists in these circumstances.

 

Yours truly,

 

Barbara Kulaszka

 

 

 

 

   RESPONSE TO BLIGHT'S SUBMISSIONS BY CAFE               

 

Canadian Association for Free Expression

Box 332,

Rexdale, Ontario, M9W 5L3

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

 

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 the submissions made by Ms Blight on behalf of the Commission in her letter of May 7, 2008.

Ms. Blight states: "The Commission has acknowledged its disclosure obligations in relation to the subject areas to which previous objection was taken under Section 37 of the Canada Evidence Act." She further goes on to state that "it has acknowledged that those disclosure obligations arose … at the time objections were withdrawn."

With the Commission now withdrawing its objections for Section 37 subject areas, and, thereby, admitting it abused Section 37 and should have never made the claims, we demand to have full copies of all material that was simply dropped on Mr. Lemires table on the first day of the hearing in January, 2007. Most of these documents were blank with "s.37" written on them. This amounts to close to at least 500 pages of material disclosed by Mr. Vigna.

JADEWARR E-MAILS

Ms. Blight states: "This portion of the disclosure totaled 229 pages and, to my knowledge, it did not contain any new materials other than 'spam' and 'phishing'."

This is totally absurd. At the March 25, 2008 hearing, Ms Blight produced a mere 38 pages of "Jadewarr" emails. Furthermore, she waited until half-way through the afternoon session to produce them, so that Ms. Kulaskza was unable to completely read them and fully question witness Steacy..

The new disclosure of "Jadewarr" e-mails received on April 29, 2008, consisted of 229 pages. Of those some were "spam" e-mails. But a good portion were e-mails which were not disclosed at the March 25, 2008 hearing and are highly relevant to the issues raised by Mr. Lemire in his constitutional motion, filed in 2005.

As well, the "Jadewarr" e-mail disclosure package had three e-mails from the "odensrevenge@gmail.com". To date only three e-mails from that account were disclosed. We want full disclosure of all e-mails in that account.

INFILTRATION AND SPYING ACCOUNTS:

CAFÉ DEMANDS full disclosure of:

1. All posts, private messages, correspondence, print outs, times accessed and all other evidence for the following CHRC users names:

·        "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"

And any other account used by any CHRC employee with respect to a Section 13 case.

2. All posts, messages, correspondence, print outs, times accessed and all other evidence for the following CHRC email addresses:

·        jadewarr@yahoo.ca

·        oldensrevenge@gmail.com

·        jadewarrior@execulink.com

·        odensrevenge@gmail.com

And any other user account used by any CHRC employee with respect to a Section 13 case.

 

CHRC Claims of Privacy

The Commission is claiming it has heavily redacted documents for "privacy" reasons. This is totally unacceptable. The documents should be disclosed fully unredacted. Just a brief glace at the documents, the redacted portions appear to be names of Police officers, government officials, and others acting in their official roles of their respective agencies. The redactions are inappropriate and without any merit in law.

Ms. Blight refers to "Wigmore" privilege with a claim of "reasonable expectation of privacy". We are only dealing with disclosure at this point, where there is an implied undertaking to not make public. The victim/respondent Marc Lemire has never made any of the disclosed documents public. Back in May 2007 the Commission did try to claim Mr. Lemire was both "selling" disclosure items, as well targeting CHRC witnesses by making public disclosure items. After a careful review of the documents, it was clear the two pieces of evidence at issue -- a CD entitled "The Best of the Midnight Man" and a DVD entitled "Shane Ruttle Martinez Exposed" were indeed FRAUDULENTLY represented to the Tribunal by the Commission. Both the items claimed by the Commission contained no such information, and were used to promote the fabrication that Mr. Lemire had violated some implied undertakings and targeted Commission witnesses. Mr. Martinez wasn't even involved in this case.

[Sadly] The Commission has shown that it is willing to create fake evidence in order to forward its position. At that time, the Commission was demanding the draconian measure of banning Mr. Lemire from his own hearing. After it was revealed that the CHRC had misrepresented two key pieces of critical information, its response was to mention in passing, that yes the documents were not as represented. It was just a small "administrative error" but it was to be ignored since they lost the motion anyhow. A few weeks later, Margot Blight acting for the Commission made a clear admission that: "The Commission did not then, and does not now, have in its possession a copy of the audio CD advertised for sale on the website." (Letter from M. Blight on 18 September 2007)

This is a shocking admission. This confirms that the Commission, indeed, submitted forged evidence. This is unacceptable and should have been sternly dealt with by the Tribunal at the time. Because of the complete lack of action by the Tribunal, the Commission simply continued to ignore the rules with impunity.

Now, the Commission is trying to concoct some sort of nefarious "security issue" and "privacy" claims to redact information from government employees, police, and others. These claims of "public security" by the Commission have already been openly questioned by the Tribunal:

"The outcome of the s. 37 matter gives me pause to question the soundness of the Commission's invocation of public security concerns with respect to the testimony of these witnesses." (CHRT Ruling – March 20, 2008)

The documents should be disclosed in full to all parties. The parties are under implied undertakings. This should be enough for the tribunal to order complete unredacted copies. If, indeed, real objections of privilege occur, they can be made under the Act when the materials are filed into evidence, but certainly not at the disclosure stage.

Furthermore, even if filed as evidence, all the personal information is still protected, when the material is entered into evidence, as the general public can only receive copies via the Access to Information Act. And any such violations of the implied undertaking can be dealt with if/when they happen. But to hide the contents of documents on totally unsubstantiated blanket claims, is wrong and a total denial of natural / fundamental justice. This tribunal must not stand for it.

The Commission has abused these absurd claims of "privacy" and "security" to the point that the documents disclosed are now almost devoid of any meaning, and, therefore, deny the respondent/victim any real possibility of questioning witnesses on the meaning, intent, context and content of documents.

During the March 25, 2008 hearing, Douglas Christie attempted to put some of the heavily censored documents to Mr. Steacy. The redactions were so obscene, the witness was unable to answer any of the questions at all, because whom they were from, to whom, the date, most of the content and every single name was removed.

That is not disclosure, but rather a clear and deliberate attempt to stifle the process and avoid following the rules. Throughout this hearing, the Commission has handled its obligation to disclose like the dance of the seven veils. Instead of full and forthright disclosure, the respondent/victim has had to battle every step of the way for full disclosure and has still not been granted this right which is fundamental to mounting a proper defence.

In the alternative, the Commission should provide a list, detailing every single claim for every single redaction on a page by page basis, so that the privilege claimed can be properly challenged. In keeping with the normal rules, the Tribunal, should receive full unredacted versions of the documents, and make a decision on a per-instance claim.

Wigmore Privilege

CAFE submits that the "Wigmore" privilege can not and should not be applied to the redactions of the Commission. The Commission states that it has invoked "Wigmore" for "individuals' reasonable expectation of privacy", yet "Wigmore" has no such exemption. If Ms. Blight wishes to claim some sort of "reasonable expectation of privacy," it is incumbent on her to provide evidence of such. She has not provided any evidence to support her claims.

"Wigmore" refers to a four-pronged approached, and it clearly does not in any way relate to the redactions made by the Commission. Those criteria are:

• the communication must originate in confidence that it will not be disclosed;

• this element of confidentiality must be essential to the full and satisfactory maintenance of the relations between the party;

• the relations must be one which in the opinion of the community ought to be fostered; and

• the injury that would incur to the relations by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

The Commission has provided no evidence or proof that there is any infringement or how the four-pronged "Wigmore" test would even apply to this situation. There are no submissions on how, for instance "the element of confidentiality must be essential to the full and satisfactory maintenance of the relations between the parties."

In much of the disclosure, the redactions are to remove the names of police officers, or other government officials, acting in their official capacity as police officers or government agents. In fact, on page 4 of 13 -- the slightly “less redacted” pages regarding a Sec. 13 action plan and dated April 29, 2005, Harvey Goldbrerg's phone number and FAX number are blacked out, despite the fact that this information is readily obtainable.

The redactions are simply a way in which to harass the victims/respondent and to run up the legal bills Mr. Lemire has to incur to defend his rights to a "full and ample" hearing. Past redactions by the Commission have been shown to be totally unnecessary, like the recent disclosure of "less" redacted correspondence with the Winnipeg Police. A simple comparison shows the material redacted was both relevant and should not have been redacted in the first place.

When a privilege is claimed by the Commission, it is its responsibility to backup that privilege and provide compelling evidence to justify the claim. Simply making blanket claims is unacceptable. To date, the Commission simply implies it might invoke some privilege, and the Tribunal, puts the burden on the victim/respondent Marc Lemire to then flail in the dark and argue why he needs the information the contents of which is unknown to him.. This is totally unacceptable.

If the Commission wants to claim some sort of privilege, it is up to them to demonstrate why they are claiming the privilege and then up to the Tribunal to review the material in question and determine if the claimed privilege applies.

This "maximum disruption" techniques beloved of the long absent Mr. Warman, who having filed the complaint and cost Mr. Lemire tens of thousands of dollars now seems to have grown bored and no longer attends these hearings, are now being employed by the Commission. They are an affront to our legal system, and CAFÉ strongly condemns this practice. At every juncture the Commission tries as hard as possible to maximize the legal fees Mr. Lemire incurs. A clear example was the Section 37 appeal. The Commission held out until the day of the hearing, to make sure it could drain every last cent from the victim/respondent.

The Tribunal needs to step in and assert its authority over these proceedings. It has now become so lopsided, that Mr. Lemire is put to a huge financial and personal burden just to request that the Commission follow the rules of the Canadian Human Rights Act. This is wrong and has to be remedied by this Tribunal.

The Commission states: "There is nothing to be added to the respondent's case by identifying individuals or their private information." That is nothing more than conjecture not supported by any facts or argument. Why, for instance, on the April 29, 2005 e-mail from John Chamberlin, mentioned above, are the names of two of the seven persons to whom it was sent redacted in this less blacked out disclosure? The names of recipients Dean Steacy, Harvey Goldberg, Kathleen Fawcett, Monette Maillet and Sherri Helgason do appear.

The Act dictates to the Tribunal that a full and ample hearing has to take place. With the late and heavily censored disclosure, the victim/respondent is so severely prejudiced, it is nearly impossible to allow for a "full and ample" opportunity for him to make his case, and the Act dictates.

Full disclosure

Ms. Blight states that "Ms. Kulaszka has referred to documents which have been disclosed by the Commission in an incomplete form. The new disclosure includes the first page only of two 1995 letters. The Commission has tried but was unable to locate the remaining pages". This again is completely inappropriate. Only after a very careful study of the material by Ms. Kulaszka, does the Commission now admit that several pages are missing. Why did they not disclose this when the documents were sent?

These games by Ms. Blight and the Commission are an outrage and make a mockery of this process. The Commission now has a long documented history of only admitting to things once it has been caught with documentary evidence.. This raises the question, how much more arguably relevant evidence has the Commission "misplaced" or was unable to find due to seriously restricted or purposely irrelevant searches?

Since the Commission seems unable to properly look through its files in a way consistent with orders from this tribunal, CAFE demands full access to the CHRC's Section 13 files, so that a proper and through search can be completed.

ORDERS REQUESTED:

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" and to 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 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 of the Commission in which Section 37 was invoked.

3. An Order for all documents in the recent April/May disclosure to be in their full form, and unredacted. In the alternative, the Commission must specify a privilege on each and every redaction and 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.

All of which is respectfully submitted.

Sincerely yours.

 Paul Fromm

Director

 

(modified from it’s original)