Live Blogging of the LEMIRE Hearing –
Fothergill Says Thought Control is the Gov't's Aim
"Hate has not changed with the new technology of the Internet. Events in
"1. Hate speech remains harmful.
"Hate speech strikes at the very core of a person's identity and the trauma can last a lifetime," he stated referencing Dr. Karen Mock's report, but Mr. Hadjis corrected him saying that her report dealt mostly with assaults, not with postings on message boards.
"None of the shameful episodes in
Mr. Kurz then turned to the hateful passages from B'nai Brith's own website. Mr. Hadjis pointed out that intent didn't matter. However, Mr. Kurz argued that the "effect" of the passage was all that mattered.
"The best way to deal with hate speech is before it becomes a cancer, using civil remedies like. Sec. 13 rather than the heavy hand of the Criminal Code," Kurz stated, not reminding Mr. Hadjis that the fines and gag orders of Sec. 13 require a far lower level of proof than the Criminal Code.
During his rebuttal, Simon Fothergill, arguing for the constitutionality of the Internet censorship law, seemed to retract his earlier charge against the defence that it was abusing the process by trying to revisit previous legal decisions: "Of course, things have changed because of the Internet."
"Both Mr. Christie and Mr. Fromm took great exception to my comment about the Internet being used to organize and reinforce like minded opinions. We are concerned about permitting certain prejudicial attitudes to develop unchecked. That part of the conclusion is not determined by the Internet and should be treated as settled," he argued.
"In terms of remedy, you are certainly entitled to consider the remedial nature and it would be a legal error to impose a penalty for a punitive purpose," Mr. Fothergill added.
Citing press briefing papers when penalties were added to the Act in 1998, Mr. Fothergill spoke of the fines as "deterrents" to people using telephone answering machines and the Internet to expose privileged groups to "hatred" or "contempt."
Mr. Fothergill urged the Tribunal not to consider media commentaries as uninformed and reflecting a bias, rather than, "as Miss Kulaszka said, the opinions of
"The Commission plays a major role in filtering out complaints and seeing that an inadvertent slip on a message board, if measures are taken, may not lead to a Tribunal," Mr. Fothergill said by way of reassurance.
Even Tribunal decisions may contain hateful statements, Mr. Fothergill admitted, but "context is everything." Thus, presumably if B'nai Brith or the government posts hateful comments it's alright; if a website with the wrong ideology says the same things, it's off to Tribunals, gag orders, fines and maybe even prison for them.
Mr. Fothergill, recounting the numerous Commission abuses of Mr. Lemire's rights, including the non attendance of Mr. Warman even for the final submissions, said Mr. Lemire should have sought judicial review, but, he added, "that if you feel the administration of justice would be brought into disrepute by these acts, you can dismiss the complaint, as Mr. Fromm, advocated, on those grounds."
"If you consider these abuses that Mr. Lemire complains of – and I take no position on them – they are administrative and you can dismiss the complaint or stay the proceedings, rather than invalidate the legislation and the will of Parliament."
Margot Blight then took over on behalf of the Commission. "It is submitted that the Commission uses common sense and the history of Sec. 13 referrals confirms that. If there is no need for a remedy, there is no need for the Tribunal to refer a case. It makes no sense to think the Commission would refer to a Tribunal a website that was being run properly."
"When the Commission discovered very late in the day that the message board had been taken down in the Ouwendyk complaint, the Commission, withdrew its participation. It is the position that this law captures only the most extreme forms of speech.
"What a WHOIS search means we explained through our expert Mr. Klatt. The Commission called no rebuttal evidence," she stated.
"I was astounded to hear Mr. Fothergill give you a way out, if you find this an abuse of protest, to dismiss this complaint without striking down the legislation," she added.
"Our charts demonstrate that this Section is not being used in a remedial fashion. We rely on Tremaine and Lampman where letters of apology don't work. Mr. Warman even posted Miss Lampman's letter on one of those websites he calls 'neo-Nazi.' With respect to Mr. Vigna, I stand by my submissions. Mr. Steacy made it very clear Mr. Warman and Mr. Vigna knew who Jadewarr was," she recalled."The Commission's 'gatekeeper' function is only to stop complaints against their friends, stakeholders or powerful people like Maclean's," she stated in her quiet forceful way.
"Thank you all, it's been a long ride. I'm very overloaded. So, don't expect anything soon," Member Hadjis said in adjourning the hearing.
We desperately need your support to cover the legal bills and costs associated with this challenge of Internet Censorship