On November 25, 2005, Marc Lemire and his legal team, heading up by courageous lawyer
After 26 hearing days, 8 interveners and 11 witnesses in 4 cities, the closing arguments are finally being presented.
Argus Ballroom
Sept 15 – 17, 2008
9:30am to 5:00pm daily
Written Submissions of Marc Lemire
On the Constitutionality of Section 13
-- Part 2 --
Constitutionality of Section 13 and 54(1)(1.1) of the Canadian Human Rights Act
These submissions are supplementary to those filed with this Tribunal on December 6, 2005, prior to the hearing of this matter. The respondent relies both on his initial submissions and the herein submissions which are based on the evidence in the hearing.
Subjectivity and vagueness of “hate”
It is submitted that the evidence called at the hearing established that the words “hatred and contempt” are meaningless, such that no person can know what expression might fall within section 13.
Witness Bio: Dr. Michael Persinger
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| Called by Marc Lemire Full Professor of Psychology and Behavioral Neuroscience at Laurentian University. Since 1987 has been a registered Psychologist in |
Persinger’s evidence has important implications for any laws which attempt to outlaw “hate” for whatever reason. It established that:
1. Hate is a highly subjective experience. It is simply a label that people apply to aversive experiences. In neuropsychological studies, “hate” is not a term that is used. The term used is “aversive stimuli.”
2. It is the culture that defines aversive stimuli. Stress is influenced by how the person perceives it, the label the society gives it and how they are reinforced for it. Being told you have a right to feel distressed is a form of social reinforcement which enhances the effect. Social expectations and social context are powerful stimuli that influence how one perceives if something is negative, aversive or not.
3. Depending upon context and circumstance almost any kind of word could produce distress in the experient and the chemical changes that take place. The most typical ones were the stress hormones. Any experience could be distressful to a person, from being told they had failed an exam to being told someone didn’t like them because they were wearing a three-piece suit. It was the nature of the biological system, called the human being, to respond often with all types of chemical changes to almost any kind of stimuli depending upon how it's perceived.
4. If a person was told that he should be offended by how he was being treated, research showed that this increased the distress. Social expectations and social context are powerful stimuli that influence how a person perceives if something is aversive or not.
5. Problems arose when the individual did not have the tools and strategies that allowed them to adapt and respond. The more opportunity a person had to respond and to use their own individual resources, the more effectively they adapted. For example, if a person felt their family hated them, he or she could be helped by learning the tools that allowed them to evaluate this aversive experience differently by having the repertoire to see other explanations for their own or their family’s behaviour. This helped them to adapt.
6. To adapt to stress and aversive situations, it was important for the individual to be able to freely respond. If a person did not have the option to respond, the result was conditioned helplessness.
What is the meaning of this for laws against hate? It means that by having laws against “hate”, the state is in fact educating people what to perceive as being “hate.” The state, through the CHRC and the CHRT, is giving certain views the label of “hate.” That really is what the hate laws are accomplishing.
Witness Bio: Karen Mock
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| Called by the Canadian Human Rights Commission Profile: 2001-2005: Executive Director/CEO, Canadian Race Relations Foundation. 1989-2001: National Director, League for Human Rights of B'nai Brith Canada · Hysterical zealot who has attacked Ernst Zündel for years. · Supporter of the Terrorist Anti-Racist Action (ARA) group · Gave a presentation to Metro Toronto City Council in support of a grant from the city for Anti-Racist Action · Spoke at various ARA meetings, including their “Youth Against hate” conference in 1996 Professional government grant catcher and has raked in over One Million Dollars since the 1990’s. ($1,074,500) (Disclosed by Attorney General of |
In her evidence, Mock admitted that the definition of “hate” which she used was not a legal definition and included acts that were criminal. [Facts, p. 232-233] For this reason alone, much of her testimony cannot be relied upon as justification for limitation of expression under section 1. She defined it later as “dehumanization language that could lead to murder or extermination..” Jokes were hate if the punch line meant “it’s okay to murder Jews.” [Facts, p. 236] In answering whether a joke was hate, she included the requirement that it not incite violence. [Facts, p. 237] She justified hate laws on the grounds that it pre-empted behaviour that led to violence. [Facts, 280]
The failure to provide truth a defence
The question of whether section 13 failed the proportionality test because truth is not a defence was addressed by the Supreme Court in
Witness Bio: Alexander Tsesis
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| Called by the Attorney General of Profile: Visiting Assistant Professor of Law - Chicago-Kent College of Law [Expert Report filed with the Tribunal] |
Tsesis testified that if statements about groups were simply true, then there was no expression of hatred. He was quite clear on this point and did not qualify it. [Facts, p. 319]
Witness Bio: Dr. Donald Downs
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| Called by Marc Lemire Donald Alexander Downs is Professor of Political Science, Law and Journalism at the University of Wisconsin, Madison. He has written four previous books, including Nazis in Skokie: Freedom, Community, and the First Amendment, winner of the Anisfield-Wolf Book Award and The New Politics of Pornography, winner of the Gladys M. Kammerer Award of the American Political Science Association. Professor Downs has also published extensively in leading journals, encyclopedias and professional books, lectured throughout the |
Inhibition of creativity, thought and adaptability
Professor Persinger gave evidence which established the extreme harm which punishment of thought inflicts on freedom of thought, creativity, spontaneity, and analytical thinking. A punitive setting, without a person actually being punished, markedly reduced creativity. The first thing that was affected was thought and indirectly verbal expression.
Teaching people to be offended and to be victims
Persinger’s evidence showed that people experience things all the time that are potentially personally distressful, such as failing exams. The problems arose when people did not have the tools and strategies that allow them to adapt and respond. When the person did not have the freedom or ability to respond, the result was conditioned helplessness.
Self-identifying group members more likely to see “hate”
The labeling of certain expression as “hate” will be determined by those who see that expression as hate. The evidence of Mock established that an individual’s strength of ethnic self-identification was a very important variable in how someone would react to material as being hate or not. [Facts, p. 216]
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Lack of intent to expose to hatred
The Supreme Court in
No value given to freedom of speech by CHRC or CHRT
In
“That no special provision exists to emphasize the importance of minimally impairing the freedom of expression does not create in s. 13(1) an overly wide or loose scope, for both its purpose and the common law’s traditional desire to protect expressive activity permit an interpretation solicitous of this important freedom.” [para. 81]
The evidence from this case makes it painfully clear that this trust by the majority was seriously misplaced.
When asked what value the CHRC gave to freedom of expression in its investigation of section 13 complaints, investigator Dean Steacy replied that he gave it no value as it was an American concept. [Facts, p. 151-152] Goldberg testified that Commission staff and investigators received no training in the concept of freedom of expression. [Facts, p. 109]
Effect of section 13 on security of the person and freedom of expression outside of the CHRA procedures
Because the word “hate” is simply a label that people attach to what they perceive to be aversive stimuli (either genuinely or for political reasons), and a word that also has pejorative connotations, as testified to by Persinger, it means that the word is available to “teach” others what they feel is “hate” and therefore offensive.
1. Mock classified Holocaust denial as “hate” but had never done a study of any authors such as Professor Robert Faurisson or Professor Aurthur Butz who had written in this area. She classified it as “lies” but obviously was relying on other people’s analysis to make this determination. [Facts, p. 212];
2. B’nai Brith had repeatedly attempted over several years to have Zundel charged under the hate provisions of the Criminal Code but never succeeded. It was only when the complaint against Zundel succeeded in 2002 under section 13, with no defences of truth or intent, that they obtained a quasi-judicial ruling that what he had published was “hate.” [Facts, p. 212
3. Nevertheless, for over a decade, Zundel was pilloried by B’nai Brith in its annual Audit of Anti-Semitic Incidents and in media articles and interviews as a “hatemonger” because of his publications.
4. In the Audits, people such as Paul Fromm and the respondent Marc Lemire were also branded as hatemongers even though Mock admitted she never attempted to have charges laid against either one. In the case of Lemire, there were no complaints regarding him or the Freedomsite so B’nai Brith took no action. [Facts, p. 220-221]
5. She testified that her definition of “hate” was very broad, much broader than legal definitions, and she didn’t think that anyone who knew the law and the “different range of hateful behaviour” would make the assumption that anyone named in the audits had been criminally charged or guilty of criminal behaviour. [Facts, p. 223]
6. After Zundel’s acquittal by the Supreme Court of Canada in 1992 on charges of spreading false news, he became the subject of violent demonstrations outside his home by “anti-racists” who denounced him as a hatemonger. His house was seriously damaged by an arson attack in 2005 and a pipe bomb sent to his house shortly thereafter. [Facts, Neumann testimony; Mock at p. 272-280]
7. Zundel became the target of posters showing his face in a rifle scope and another showing his house and inviting people to firebomb it (it was almost destroyed by arson). He was described as the hatemonger who had escaped justice.
8. B’nai Brith and the Canadian Jewish Congress and other “anti-racist” groups began campaigns to have Zundel charged under the hate laws, using language inciting fear of Zundel and labeling him a dangerous person who was a threat to Jews. [Facts, pp. 272-280]
9. Violent demonstrations of “anti-racists” took place outside the hearings of the section 13 case against Wolfgang Droege and the Heritage Front and the house of Gary Schipper, the person who read the telephone messages, was trashed in an extremely violent attack by a mob. [Facts, p. 263-271; also, testimony of Neumann]
10. Paul Fromm was followed and intimidated by “anti-racists” during one of the section 13 hearings, a demonstration took place outside his house by Anti-Racist Action in which threats to burn down his house were made. A meeting to raise money for Lemire’s section 13 defence was broken up by Anti-Racist Action and people who tried to attend the meeting were followed to a coffee shop and intimidated. In conjunction with the demonstrations, flyers were put out identifying Fromm as a person who was defending “hatemongers” in section 13 cases. [Facts, Fromm testimony]
11. Lemire’s car was vandalized by a person scratching “Nazi” in the hood in 2006, after the complaint was laid against him. [Facts, p. 329]
12. In Mock’s work at B’nai Brith, she never spoke to Zundel, Fromm, Lemire or any of the other people she labeled as “hatemongers” in the Audit of Anti-Semitic Incidents. [Facts, p. 228]
Persinger testified that when you have groups of people saying, “I feel offended” and they reinforce each other, it reinforces and increases the impact on the individual. [Facts, p. 194] By constantly saying that Zundel and others are hatemongers who are lying and dangerous, identity groups like B’nai Brith increase the impact on individuals in their own community, instilling even more fear and offence.
Who is being punished by Section 13
Every respondent so far in section 13 complaints has been white. All are on the right of the political spectrum although having different views. Almost all are poor and not represented by legal counsel. [Facts, p. 341; Appendix, see chart]
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EFFECT OF EXTENSION TO THE INTERNET
Amount and type of information now falling under Section 13
It is submitted that section 13 fails all branches of the proportionality test because of the sheer amount and type of publications and communications which it now covers, including those of the press.
Witness Bio:
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| Called by Marc Lemire Internet and computer expert. Has been in the computer industry since 1970. Has worked for multinational corporations like Digital Equipment, General Electric and Philips-Signetics. Owner of Fairview Technology Centre, an Internet Service Provider in |
Section 13 previously did not cover newspapers or magazines or books or video or audio documentaries. Allowing the CHRC, the CHRT and a complainant to use the full powers available under the legislation against the press is an unacceptable violation of section 2 (a) and (b) of the Charter, given that there are no defences of intent, fair comment on matters of public interest, and truth.
Internet is interactive unlike telephone recordings
In Taylor, Dickson C.J. in considering the nature of the medium of the telephone held that he agreed with the findings of the CHRT in Nealy v. Johnston that the combination of the telephone and hate material was particularly insidious because it was “one which gives the listener the impression of direct, personal, almost private, contact by the speaker, provides no realistic means of questioning the information or views presented and is subject to no counter-argument within that particular communications context.” [para. 78-80]
Internet Service Providers are not a public utility
One of the most insidious impacts on freedom of expression arises from the fact that access to the Internet is provided by private businesses, called Internet Service Providers or ISP’s, which do not have common carrier status in Canadian law.
Section 36 of the Telecommunications Act 1993, c. 38 provides:
36. Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.
Section 13 was enacted at the request of Attorney General of Ontario who had initially attempted to shut down John Ross Taylor’s telephone messages by pressuring
The CHRC is not the only actor in the drive to use ISPs as the enforcers of section 13 where censorship actions are unseen and unknown to the public and where the website owner had no recourse but to find another ISP.
“Richard Warman testified that in March of 2001, he became aware of the Patriots on Guard website, through his involvement in human rights work. He contacted Mr. Kyburz’ Internet service provider, alerting it to the nature of the content on the site. As a result, service to the site was cut off, and the site was shut down. According to Mr. Warman, the Patriots on Guard web site was not accessible for several days in April of 2001, although it was back up within a couple of days, through a different service provider.” [Decision, para. 35]
Warman advised his audience in a 2003 speech that it was possible to “shut down hate mongers via corporate pressures” on ISPs by explaining to them that they were responsible for their subscriber’s content. [Facts, p. 85] His own experience obviously proved the truth of his statements.
“Broadly speaking, the recommendation is for a partnership between Canadian police services and the Canadian Human Rights Commission to analyze foreign-based website to make a determination as to whether a particular site would, if it or its owner was located in
The CHRC refused this offer as it felt such a role was inconsistent with its mandate and could subject it to accusations of conflict of interest if it was making determinations that certain material came within section 13 outside the complaints process and then the same material was complained about. Farber met with ISPs and urged them to devise a protocol based on existing law that would allow them to remove hateful material at their own discretion. [Facts, pp. 125-128]
This backdoor to censorship did not exist in the case of telephone messages. It exists with respect to the Internet, which has become essential in today’s information society, and which contains information on a scale not envisioned when section 13 was passed.
Warrants to search respondent’s home and computers
Under s. 43 of the CHRA, the CHRC has the power on an ex parte application to the Federal Court to obtain a warrant to enter and search any premises “that there are reasonable grounds to believe that there is... any evidence relevant to the investigation of a complaint...” Investigators are entitled to use force if the warrant so specified and a peace officer is present.
The right to speak anonymously
The right to free expression must include the right to speak anonymously. Almost all people posting on message boards use pseudonyms to mask their true identity, including status and other personal characteristics. The right to speak anonymously is an important aspect of political dissent and in speaking openly and honestly in forums where controversial issues are being discussed.
Abuse and corruption of the CHRC and its processes
During the hearing, the CHRC announced that it had had a policy of not disclosing to respondents the fact that it was using false identities on message boards and emails to contact respondents and engage them in conversation on message boards and in emails. [Facts, p. 167]
The evidence showed that the CHRC had at least two false identities which its investigators in section 13 cases used. One was “Jadewarr” and one was “Odensrevenge.” Using the Jadewarr account, investigator Dean Steacy signed on to several message boards, including the Freedomsite message board. There is no evidence he posted any racist material, but he did attempt to engage Lemire in conversation about a complaint Lemire had laid under section 13. He admitted that if Lemire had replied, depending on what he said, Steacy could have used it to dismiss Lemire’s complaint as vexatious. [Facts, p. 156-158]
CHRC exchange of personal information with police
Both section 13 and section 319 of the Criminal Code deal with the restriction of “hate”. As a result, both the CHRC and police have pursued the same people under both provisions. This has been accelerated by the fact that Warman has laid criminal complaints against respondents after first laying complaints against them under section 13 about the same material. [Facts, p. 78-79]
Summary
Section 13 has in fact become two provisions:
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Order Requested
The respondent requests the orders set out in his motion dated December 6, 2005.
Respondent Marc Lemire
WHERE?:
Argus Ballroom
WHEN?
Sept 15 – 17, 2008
9:30am to 5:00pm daily
[See a Map of Location] | [Get Directions to hearing]
On November 25, 2005, Marc Lemire and his courageous lawyer
The 2008 final submissions can be read > here < and > here <
“And to say the CHRC's section 13 thought crimes case against Marc Lemire has backfired is an understatement. Not only have his counterattacks blown the lid of the CHRC's corrupt tactics, such as their practice of posting anonymous, bigoted messages online, but their illegal hacking into a private citizen's Internet account has now attracted the scrutiny of
Argus Ballroom
Sept 15 – 17, 2008
9:30am to 5:00pm daily
Driving Directions
· EXIT 118 (
· TURN
FROM HWY 401 (EAST OR WEST)
· EXIT 328 (
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[See a Map of Location] | [Get Directions to hearing]
| We Desperately need your help to continue Fighting the fanatics at the Canadian "Human Rights" Commission and defending freedom of speech for ALL Canadians is not an easy task. In particular, the final submissions which we've just finished consumed the most time and resources. This has meant sacrificing a lot of cherished things in my life that I used to take for granted such as spending precious time with my children. It's also very costly and has incurred heavy debts given that I'm facing a "Human Rights" juggernaut that has a limitless budget. It has already spent millions and is prepared to spent a lot more of your tax dollars to keep their thought control machine running. My courageous lawyer Every victory we've attained against the "Human Rights" juggernaut has come at great expense. Barbara and I are more than willing to continue, but your financial generosity is desperately needed. Barbara deserves to be compensated for the extraordinary work she's put in and we need to cover the overwhelming associated court costs such as printing and photocopying which alone have amounted to thousands of dollars. We cannot carry on this important fight alone. Your donations literally equals the survival of this case. I wish to thank all those that have donated to this worthy cause. Please donate directly to us so that I can send out a personal thank you. If you have donated to another organization or individual please contact me so I can thank you directly and send you a copy of our special booklet that is for our supporters only. How you can help: Donate using a credit card online with either PayPal or MoneyBookers.
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It’s time to end the censorship of the extremist Canadian Human Rights Commission!
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