Sunday, May 4, 2008

Lemire Demands Hearing Adjourn until CHRC properly discloses key documents

Devastating motion filed today with the Canadian Human Rights Tribunal.






Attention: Ms. Carol Ann Hartung, Registry Officer


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


To the Tribunal:


Last week, I received from the Commission further disclosure in the amount of some 400 pages. I was served with two CD’s of documents and further faxed information. The last disclosure was made by fax on May 1, 2008. Ms. Blight has indicated that more material might be coming by May 5, 2008.


The disclosure includes many documents relevant to the constitutional challenge which should have been disclosed by the Commission two years ago.


They include correspondence between Dean Steacy and various police agencies across Canada concerning obtaining police evidence on various respondents and information received by the Commission from police about these respondents. It is the very evidence which the respondent was seeking in 2006 when he made his motion for disclosure from the Commission and obtained the ruling of the Tribunal dated August 16, 2006.


On August 16, 2006, the Tribunal ordered the Commission to disclose the following documents:


[43] On the other hand, I accept that the requests in items (j), (l) and (m) are arguably relevant and are not over-reaching or ambiguous:


j) All documents relating to the Commission's relations with Internet Service Providers, including attempts to pressure ISPs to shut down websites or remove them;

l) All documents relating to meetings, networking and consultation with any group representing one of the groups protected from discrimination under the Canadian Human Rights Act, and any police or governmental agencies, relating to hate on the Internet;

m) All documents relating to educative or publicity activities of the Commission with respect to hate.


The documents disclosed fall squarely within the order for disclosure made in that ruling. The disclosure ordered was in relation to the constitutional challenge filed by the respondent under the Canadian Charter of Rights and Freedoms.


They have now been disclosed one week before the final arguments are to be filed by the respondent on the constitutional issue. And they are made with highly relevant information being blacked out or whitened out with no specific claim of privilege being made to justify this action.


There are crucial documents included in this disclosure. The failure of the Commission to disclose these documents in 2006 prior to the hearing of any oral testimony has severely prejudiced the respondent in his constitutional challenge as he was prevented from using them during the hearing and the testimony of Richard Warman, Dean Steacy and Harvey Goldberg.


This is not the first time this has happened. Throughout this case, the Commission has consistently dragged its feet and only disclosed evidence after multiple motions by the respondent and orders of the Tribunal. Last year, many documents were disclosed after Harvey Goldberg gave testimony and the respondent was unable to explore them with the witness.


The respondent requests that the Tribunal order the Commission to disclose the documents in an unredacted form.  As well, there are documents that appear to have been double-sided but only one side has been copied for disclosure. The Commission appears to claim no privilege for the portions of the documents that are erased and is therefore bound by the August 16, 2006 order to disclose the documents in their original state. The respondent asks that the Tribunal set a date for the Commission to complete this disclosure.


The respondent will be making a motion to file many of these documents into evidence after they are produced in the proper form.  There appear to be close to 200 pages of documents which the respondent will be seeking to enter into evidence. They go to the heart of the respondent’s constitutional argument, that section 13 has become in essence a criminal provision and the Commission is using, in an indirect way, the search and seizure powers of the police.


Secondly, the respondent requests an adjournment of written submissions and final arguments until either the summer or fall.


The Tribunal set dates for final arguments on February 11, 2008. These dates are not set in stone. They were set in good faith, giving the parties ample time given the circumstances then prevailing to make their submissions.


That is not the case today. 


The respondent has already been severely prejudiced by the Commission’s failure to make timely disclosure of these documents.  


If he is not given time to ask for proper disclosure and time to make a motion to admit the unredacted documents into evidence as exhibits, then he will have been denied natural justice and a fair hearing, as required by section 48.9 (1) of the Canadian Human Rights Act and by the common law governing quasi-judicial tribunals.


There is also great prejudice to the public interest.


In Kulbashian v. Canada (Canadian Human Rights Commission), [2007] F.C.J. No. 475, the court stayed the judicial review application challenging the constitutionality of section 13 pending the outcome the constitutional challenge in this case. The Court held:



12 Although the Attorney General recognizes that the Court has the jurisdiction to consider constitutional challenges, he argues that there was no evidence before the Tribunal relating to the alleged Charter violation or any potential justification about this violation pursuant to section 1 of the Charter. The Attorney General argues that the appropriate remedy is for the Court to decline to hear the Charter issues now being raised and to wait for the outcome in Lemire, where the parties will have the opportunity to submit evidence in respect of this issue. […]

42 In my opinion, a stay of the present proceedings is appropriate on the grounds that the sole issue raised in the Applicants' Amended Notice of Application is currently the subject of adjudication before a tribunal in the Lemire matter.

43 In WIC Premium Television Ltd. v. General Instrument Corp., [1999] F.C.J. No. 862 (F.C.T.D.) (QL), the Court addressed the factors to be considered in granting a stay when there are proceedings before another court or in another jurisdiction. These criteria include the risk of inconsistent findings, excessive costs and the capacity of the court to grant the complete or comprehensive remedy.

44 These factors are relevant in the present case. The tribunal hearing the Lemire matter is authorized to adjudicate upon the constitutional validity of subsection 13(1) of the Act and that disposition, including any subsequent application for judicial review, will be available for the guidance of the Court when the current matter proceeds. […]


The motion is allowed. The within matter is stayed pending the disposition of Richard Warman v. Mark Lemire, Tribunal File No. T1073/5405 proceedings before the Human Rights Tribunal. [emphasis added]



The evidentiary record of this hearing will be used, not only in any judicial review of the decision of this Tribunal, but also in other cases before the Federal Court.


I do not think it is an exaggeration to say that this case will be the defining decision with respect to section 13’s constitutionality for many years. The record of this proceeding will be the basis for those decisions.


The Tribunal has received recognition of this fact in the application of the Canadian Constitution Foundation for interested party status. This organization can make useful submissions on the constitutional issues and the respondent therefore submits the application should be granted. It should also be allowed time to review the record.


Given the importance to the most basic rights of the respondent, to other respondents and to the Canadian public’s interest in the Charter rights to freedom of expression and conscience, the respondent must be given the opportunity to obtain these documents in an unredacted form and to subsequently apply to enter many into evidence.


I enclose a listing of the documents which accompanied disclosure of the CD’s. The faxed disclosure were emails which are so blacked out it is difficult to know who they are to, but appear to come from the Winnipeg Police Service.


The respondent therefore requests:


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 of documents in their original form and to apply to file documents as exhibits in the case.



Yours truly,



Barbara Kulaszka



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





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