“It’s true that, in this case, conciliation attempts were turned down by the oomplainant,” Mr. Fothergill acknowledged.
“One of the central tenets of Mr. Lemire’s position is that the Taylor decision is based on social science that is 40 years out of date, but it’s based on many other reports as well,” he added. However, he did acknowledge that the social science may be 20 years out of date.
“If speech gets chilled around the edges of ‘hate speech,’ I would argue is tolerable. I have to tell you quite frankly that is possible,” Mr. Fothergill stated.
Member Hadjis added: “Considering the events of the past year, isn’t there the risk that people who utter something close to the line can be dragged through the process.”
Fothergill said that, in a case like that, conciliation could mitigate the process.
Hadjis shot back: “But in this case, this didn’t happen,. The respondent turned down conciliation. And the respondent does not know of deficiencies in the investigative process until he’s well into the process.”
“It’s very difficult to construct an entirely truthful statement that constitutes hate,” Fothergill stated, “but there might be a context.|”
“Truth is not a defence and intent is not a defence, but they are not irrelevant to the effects and effects are what matters in human rights legislation,” he added.
Hadjis asked: “So, I’m to judge a truthful statement on the basis of who made it” to decide whether it’s likely to expose someone to hatred or contempt..
“If you look at Sec. 13 Tribunal decisions, there is a scrupulous effort to ensure that the statements are extreme,” Fothergill argued, despite a 30 year 100 per cent conviction rate in Sec. 13 cases.
The lawyer for the Attorney General’s department spoke at length about the 1990 Supreme Court ruling upholding Sec. 13 as a “reasonable” infringement on free speech in the John Ross Taylor case.
This Tribunal should look with some skepticism at this constitutional challenge as it involves the same parties as in the Zundel case. There’s Mr. Christie and Miss Kulaszka (for the defence) and Mr. Fromm intervening for the Canadsian Association for Free Expression,” Fothergill said in a fierce attack on the defence team.
“This is relitigation of matters already settled in Citron v. Zundel,” Fothergill charged, apparently forgetting that no expert witnesses were led in that case that undermined the psychological arguments used to justify restrictions on freedom of speech.
Charging that the defence team is involved in “an abuse of process,” Mr. Fothergill insisted that Mr. Lemire, Mr, Christie and Mr. Fromm “are closely involved. ... In the course of his multiple appearances before the Tribunal, Mr. Fromm, who is not a lawyer, has put forward arguments on free speech and the public versus private sphere in Warman v Tremaine. These arguments are also being raised in the current case. ... The repetition of the same rejected arguments about the same legislative provision results in much public expenditure in relation to an issue that has previously been adjudicated by the Courts and the Tribunal,” continued. Yet, one Tribunal’s decision is not binding on another Tribunal.
“The reasoned apprehension of harm on the part of Parliament” is the test for be met to justify restrictions on free speech, the government’s lawyer Simon Fothergill argued.