Wednesday, September 10, 2008

*** Lemire Final Submissions on the Constitutionality of Section 13 (A MUST Read!)

Final Submissions on the Constitutionality of Section 13

On November 25, 2005, Marc Lemire and his legal team, heading up by courageous lawyer Barbara Kulaszka , filed before the Canadian Human Rights Tribunal a constitutional challenge of Section 13 (internet censorship) and Section 54 (impose hefty fines) of the Canadian Human Rights Act.

After 26 hearing days, 8 interveners and 11 witnesses in 4 cities, the closing arguments are finally being presented.

Closing Arguments will be at:

Holiday Inn Oakville Centre

Argus Ballroom

590 Argus Road

Oakville , Ontario

Sept 15 – 17, 2008

9:30am to 5:00pm daily

[See a Map of Location] | [Get Directions to hearing]

Written Submissions of Marc Lemire

On the Constitutionality of Section 13

-- Part 2 --

[Written Submissions: Part 1]

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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.

The evidence of Professor Michael Persinger was called to provide evidence for the tribunal from the field of cognitive contemporary neuroscience on issues arising from the suppression of some thought by legislation such as section 13. The evidence of Persinger was unchallenged, the opposing parties choosing not to exercise their right to cross-examination.

Witness Bio: Dr. Michael Persinger

Called by Marc Lemire

Full Professor of Psychology and Behavioral Neuroscience at Laurentian University. Since 1987 has been a registered Psychologist in Ontario , specializing in: Neuropsychology and Personality Assessments, with secondarily specialization in Psychometric Family Assessments. Dr. Persinger has written seven books and written/contributed to over 200 scientific articles and journals. He is well recognized as an expert the world over. Since 1983 has been the Coordinator of Behavioral Neuroscience Program at Laurentian University. Dr. Persinger has appeared on “NOVA”, ABC's “20/20", ABC’s “NightLine,” “60 Minutes” ( Australia ), “That's Incredible,” “48 Hours” (CBS), Unsolved Mysteries, The Discovery Channel, UltraScience, MTV News Special, The Unexplained, CNN News, NBC News, The Learning Channel, Arts and Entertainment Channel, Japanese T.V. among others.

[Expert Report filed with the Tribunal]

[Curriculum Vitae]

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.

The rulings on what is “hate” by tribunals and courts are utterly artificial and arbitrary constructs being driven by those coming to them as complainants demanding that certain expression be labeled as hate. Given Persinger’s testimony, these are people or groups who cannot adapt to the expression of such views, such as by debate or rebuttal or dismissal. Alternatively, complainants can also be people who have made a deliberate calculation to fill the empty vessel that the word “hate” is with whatever meaning they need to discredit and destroy an enemy or inconvenient information.

A tribunal which bans certain speech is saying to the complainant: “You don’t have to adapt to this information. You don’t have to debate. You don’t have to ignore it. You don’t have to deal with it. We’ll get rid of it for you, since you lack the tools and strategies necessary to respond and adapt. You are a victim and we are here to protect you.”.

Witness Bio: Karen Mock

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 Z√ľndel 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 Canada in Witness Statement filed: May 5, 2006

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]

She defined “hate” to mean an act or omission that expresses bias or prejudice or bigotry or contempt towards vulnerable or disadvantaged communities or individuals. She defined “victims” of hate to be those whose attitudes, opinions, behaviours were affected by that hatred. This included everyone in society. [Facts, p. 233]

Her evidence was that groups could be criticized but criticism ended when damage to one’s self-worth began based on immutable group identity. [Facts, p. 234] Whether such damage to self-worth occurs is totally subjective, as discussed above, and is dependent on an individual’s personality characteristics and life experiences. Most importantly, it is, as Mock admitted, dependent on the strength of a person’s self-identification with a group whether someone perceives something as hate or not. [Facts, p. 215]

She was given the example of the well-known criticism of the undue influence of the Catholic Church in Quebec in its politics and in directing people’s lives. She replied that it was “legitimate discourse” that might cause people to reflect on the behaviour of the Catholic Church, for others it might give them a “positive” sense of self, and others might pick up the phone and speak to someone and see “if I can do something about that.” [Facts, p. 234]

In this answer, Mock was clearly describing the adaptation described by Persinger. People choose how to respond to material and the more ways they are taught to respond and adapt, the stronger they are and the less vulnerable to their own emotions in aversive situations. Mock, however, appeared oblivious to this solution in the rest of her testimony and indeed, in her life’s work. [Facts, p. 235]

Mock’s statement that the services of an expert would be required in identifying “hate” in fine cases shows that the word is not definable or knowable, as stated by Persinger. It is simply a label people use for numerous negative situations personal to themselves. [Facts, p. 237-238] She testified anyone publishing would especially want to consult his lawyer. [Facts, p. 238]

People being held liable under section 13, however, are not publishing houses or newspapers with legal departments and editorial control. The Internet is peopled by ordinary individuals writing material that ranges from books to essays to blogs to posts on message boards to text messages to email. The time and thought going into each of these types of communications ranges from years to seconds, from much thought to no thought. Any word that requires the services of an expert and a lawyer sitting by the computer is not a definable word. It is a negative, pejorative label as Persinger testified.

With respect to the word “contempt”, Mock testified that it meant looking down on an individual, a sense of superiority that attacked the identity of a person. But she admitted that groups identified by race, religion and so on could do things collectively that were evil and that should be subject to criticism. [Facts, p. 238] It follows that the provision prevents the very expression which section 2(b) of the Charter was designed to protect.

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 Taylor . The majority held truth was irrelevant while the minority held that Canadians expected to be able to speak the truth without legal repercussions.

Dickson C.J. held that he found it difficult to accept that circumstances existed where factually accurate statements could be used for no other purpose than to stir up hatred against a racial or religious group. [para. 74] He had made this observation in Keegstra and adopted it for the purposes of the Taylor appeal.

He recognized that under s. 319, the accused’s intent or purpose must be to stir up hatred. The issue in section 13 is whether it is likely someone will be exposed to hatred or contempt. He stated that because section 13 was found in the context of a remedial statute, he was still finding the defence of truth was not required.

The evidence in this case from all three witnesses who testified on the issue contradicted the finding of the majority of the Supreme Court on truth.

Mock’s testimony on this point showed that truth is an essential element in deciding whether expression was, as she defined it, hatred or contempt. She also testified that it was possible for someone to experience hate or contempt when hearing truthful statements. [Facts, p. 242] She agreed with the proposition that to make the distinction between criticism and contempt, one had to decide whether what was being said was factually true or not. [Facts, p. 239]

She testified that in determining how far a person was allowed to go in criticizing a group before it became contempt, one of the factors to be examined was whether it was “lies that are being promoted.” [Facts, p. 239] She testified that it would be appropriate in a section 13 hearing to give the respondent the opportunity to attempt to prove the truth of the premises upon which a respondent had based his expression. [Facts, p. 240]

It was very clear that truth was important to Mock and she gave her most unambiguous answer when she was asked if she defined people as “haters” because they were lying. She replied that she looked to the definition of propaganda and how people’s attitudes were shaped and changed. And it was the “constant repetition of half truths, lies, exaggerations, stereotypes, etc.” that created a climate where people were dehumanized. [Facts, p. 240-241]

Mock considered what she called Holocaust denial to be hatred and gave seminars to counter it. Her purpose was to help young people see where they are being “lied to.” [Facts, p. 240] She testified about these educational efforts repeatedly and the key importance of education to counter “lies.” [p. 241]

If someone called her a Holocaust denier she said she would be outraged because it would be a complete lie and would damage her reputation because it was something “that in our society is considered to be outrageous and false.” [Fact, p. 241] Yet, when asked directly if truth should be an absolute defence to any allegation of hate, she demurred. Asked if truth could promote hatred, she replied she had never actually thought about it that way. [Facts, 241]

It is submitted that Mock’s testimony consistently showed the vital importance of truth to how she perceived expression as being hate or not. She should have admitted this when asked directly but it is nevertheless clear from her testimony.

Witness Bio: Alexander Tsesis

Called by the Attorney General of Canada

Profile: Visiting Assistant Professor of Law - Chicago-Kent College of Law

[Expert Report filed with the Tribunal]

[Curriculum Vitae]

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]

He also testified that the assessment of truth or falsity of a statement would be a “critical part” of the assessment of the nature of an expression and its effect. He testified: “I think it would only be logical for a court to inquire into its truth.” [Facts, p. 316-321 at 317] He said that a person should be allowed to prove that a statement was true, even though it exposed an identifiable group to hatred. [Facts, p. 316]

Downs testified: “Truth the often inconvenient. I think back in my country, how many religious people just hate the theory of evolution. It's deeply offensive to them. It hurts them. And so that's a very important point, that offence alone can't be grounds for censorship unless we want to end up not being able to discover new truths.” This was especially so, he said, when there was a highly emotional, politically charged kind of context. For example, criticizing aspects of Islam because of its links to terror: “If we make offence a grounds for prosecution then we've basically given Islam a free pass. You can't criticize them. And, of course, that's an unreasonable kind of proposition, just as would blanket criticism of Islam be unreasonable.” [Facts, p. 289]

Witness Bio: Dr. Donald Downs

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 US and in England and Scotland, and made numerous media appearances on radio and television to discuss issues of American politics and law.

[Expert Report filed with the Tribunal]

[Curriculum Vitae]

Downs also quoted Deborah Lipstadt, who opposed laws against Holocaust denial, on the grounds that it harmed the truth-seeking process. By placing Holocaust denial into the hands of the state for punitive enforcement it was taking it out of the truth determination process. This actually weakened the argument against Holocaust denial. [Facts, p. 290] In his experience with speech codes, which were very similar to section 13, Downs stated the idea of not making truth a defence was that you could present the truth in a way that was less offensive without really changing the message. He stated this might be done in some cases but there were many cases where it could not be done. It also meant that one was giving in to the dictation of someone else. [Facts, p. 290] He emphasized that truth needed to defend itself in the world to give it vitality, otherwise it became an orthodoxy. These ideas were expanded upon in Jonathan Rauch’s book “Kindly Inquisitors.” [Facts, p. 291]

It is respectfully submitted that the testimony of the intervenors’ expert witnesses shows that truth is an important part of determining whether in fact words complained of are “hate” or expose to “hate.” By failing to provide this important defence, section 13 fails to meet the proportionality test of section 1 of the Charter.

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.

Persinger emphasised that creativity, the ability to integrate new ideas and to adapt were mostly frontal lobe functions. This was the first area of the brain adversely affected by punishment or the anticipation of punishment. Punishment narrowed thought, increased anxiety and reduced versatility and the general ability to solve complex problems. The range of thought was decreased by apprehension of punishment.

The negative effects of punishment were increased if an individual did not know what verbal expression was acceptable and what was not. Persinger gave the example of his own university, where anxiety about what to cover in a text caused his colleagues to simply exclude entire topics from discussion for fear of something as small as a reprimand from the dean. [Facts, pp. 196-203]

It is submitted that hate laws such as section 13 contribute to a reduction in free thought about society’s problems and anxiety about punishment for verbal expression that could threaten livelihoods or social acceptance. No society can solve its problems if even university professors eliminate entire topics from discussion for fear of punishment for discussing these topics. Downs confirmed this extraordinary chilling effect on freedom of expression and conscience.

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.

Downs testified about this effect in American universities where he said there had been a tendency to get students into groups and tell them they were going to be victimized. They were being socialized into the victimhood mentality. At his university, they were trying to create a culture of free speech and intellectual courage. If someone said something that bothered you, speak back. [Facts, p. 293]

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]

In practical terms, this means that the use of hate laws will be driven by people who very strongly self identify with a group based on race, religion, etc. Obviously, many people do not think of themselves primarily in terms of race or religion or the other named groups. Their primary identity may be as mother or father or doctor or musician. These people will not bring section 13 complaints.

Mock herself is an example of this point. She testified that she self-identified very strongly as a Jewish person. [Facts, p. 214] Yet, remarkably, she was utterly oblivious to the impact this might have on how she viewed whether something was “hate” or not. She testified she had never considered the fact that she identified so strongly with her own group might be affecting her judgment. Asked if she thought she should take that into account, she replied, “I do.” [Facts, p. 215]

She became very emotional when she was shown a letter by Ernst Zundel published in the London Free Press about his views on the Holocaust. The letter was an extremely dry review of Zundel’s research into the matter and ended by asking for a rational discussion and a stop to prosecutions. She said it “hurt” to read the letter and that Zundel wasn’t asking for a platform for legitimate discourse, he was asking for a platform to promote hatred against Jews. She said she identified strongly as a Jew and as someone who knew “what the pain is of someone who has lost relatives” She believed in limitations on speech that inflicted that pain. [Facts, 214]

This was a good example of what the Bryant-Davis paper was speaking about in terms of the various personal characteristics which determine how someone will react to something. Mock realized, however, that many people would have no reaction at all to the Zundel letter. She testified that other people would not be in the least upset by it. [Facts, p. 216]

She admitted that a large number of her supporting references in her expert reports came from B’nai Brith or its American counterpart, the Anti-Defamation League. She agreed that people affiliated with these organizations would probably strongly identify as Jews. But during the time she worked at B’nai Brith, it was never discussed that this very strong ethnic identification might be biasing how they were perceiving material as being hatred or not. [Facts, 217]

In terms of freedom of speech, the effect of this is extremely serious. It means that what is labeled “hate” by tribunal decisions will be driven by people who are extremists, that is, they are on the extreme of group identification. This inevitably will lead to polarization, resentment and division if the law is used to validate the views of one group and delegitimize the views of another group. The investigation into the Holocaust is but one example. Historical investigation in a liberal society should be free and open; the insistence that this event is beyond discussion can only lead to resentment by Germans and other ethnic groups alleged to have committed these crimes.

Another example is if the law is used by religious extremists who demand that criticism of their religion is hatred. In such a case, the law will have the same effect as a law against blasphemy. It will be a return to a dark time for free thinkers, those who fought to stop the persecution of non-believers or heretics.

On the other hand, persons whose religious beliefs include the moral stance against homosexuality will find themselves subject to section 13 for speaking their conscience about this issue. Several complaints have already been received under provincial human rights that pit Christian beliefs against homosexual demands such beliefs be classified as “hate.”

Mock’s reaction to the Zundel letter also shows there is no rational connection between section 13 to its objective. The letter was in a newspaper, not the Internet, so section 13 does not cover it. No reasonable person could predict that such a dry and factual letter would evoke great emotional hurt and in most people it wouldn’t as Mock admitted. This incident shows no tribunal can know what will expose a given person to hatred, or in more honest terms, what will cause a person to feel hurt and offended.


The examination of the chart in the Appendix setting out the complainants in section 13 cases shows it is being used primarily by people who self-identified as Jews and by multicultural or anti-racist groups who support group identity rights. The intervenors, B’nai Brith, Simon Wiesenthal Centre and Canadian Jewish Congress, wrote in their submissions for intervention, after claiming to speak for all Canadian Jews, that Jews relied heavily “on anti-hate speech legislation, such as section 13... for their physical and psychological security.” However, these groups called no evidence to support this assertion at the hearing and it is hard to envisage how section 13 would help “physical security” of anyone.

It is submitted that ordinary Jews don’t psychologically need hate laws; moreover, they do not use them; the three intervenors are those on the “identity” extreme and in fact, B’nai Brith or its members made up almost half of those who complained under section 13 who self-identified as Jewish. [Facts, p. 93-96] And only nine such Jewish individuals or groups laid complaints that went to a tribunal.

The testimony of Downs confirmed the crucial importance of strongly self-identified racial or religious groups in advocating politically for the enactment of speech codes similar to section 13. When identity politics became an important phenomenon, especially on American campuses, groups were organized to be offended by things. He testified that offence could be genuine or politically contrived. There was a tension between those whom Downs termed “Kantian universalists” who believed in human dignity and liberty for everybody including free speech, and those who embraced identity politics and who tended to be more group-based and ethnic-based. [Facts, pp. 285-286]

Lack of intent to expose to hatred

The Supreme Court in Taylor held that no intent was required under section 13 because the CHRA is a remedial statute and its objectives related to remedying the effect of discriminatory practices, not to punish them. [para. 70]

It is submitted that the evidence summarized above clearly establishes that the CHRA has not be used as a remedial statute with respect to section 13 and the penalty provision enacted in 1998 has imported the punishment aspect that was absent when Taylor was decided.

The lack of a requirement of intent to expose to hatred or contempt in this context does not minimally impair the right to freedom of expression under section 2(b) of the Charter and therefore does not meet the test of proportionality in section 1.

Downs ’ testimony discussed the increasing problems with such codes, citing the article “Illiberal Europe” which discussed laws against hate and Holocaust denial. It made the point that laws against any speech that causes offence are “biased because they have the insidious effect of conflating bigoted speech and constructive criticism, two kinds of speech that should be sharply distinguished from each other.” Intellectually honest and well-motivated speech that was constructive criticism was also being caught because intent is no defence.

Downs’ testified that the problem was compounded because identity groups were organized to pressure for charges and complaints. [Facts, p. 289-290]

No value given to freedom of speech by CHRC or CHRT

In Taylor , the majority judgment rejected the need for any interpretive provision in the CHRA protecting freedom of expression. Dickson, C.J. wrote:

“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]

The CHRT is not a court and not all of its members are lawyers. It has no traditional desire to protect expressive activity as it is a statutory body with the mandate, confirmed and upheld by Taylor , to suppress expression that is the truth, that is made with no intent to expose to hatred, that is fair comment on matters of public interest and may be made to ameliorate disagreements between groups.

Persons appointed to the CHRT are required under s. 48.1(2) to have “experience, expertise and interest in, and sensitivity to, human rights.” One of the human rights tribunal members are expected to enforce is the right not to be exposed to hatred or contempt on the basis of group identity.

In both the CHRC and before the CHRT, there is no effort or attempt to balance freedom of speech or the press against the rights of complainants under section 13. Not one type of communication has escaped the purview of the legislation. Decisions have covered anonymous posts on message boards to historical commentary.

Every single complaint brought under section 13 to the CHRT has been upheld and, since 1998, large financial penalties imposed to punish the respondents together with life-time cease and desist orders. While cease and desist orders are meant to be remedial, tribunal decisions describe them as having important “symbolic” value as a “public denunciation” of the respondent’s actions. [Tremaine, para. 148; Zundel, para. 300; Kyburz, para. 82].

CHRC employees as well as the CHRT routinely dismiss any arguments to balance freedom of expression by referring to Taylor . It has been interpreted as giving carte blanche to banning any speech deemed offensive.

It is submitted that the scheme of the CHRA, the absence of any direction to balance fundamental freedoms, and the decision in Taylor have combined in a perfect storm to completely remove any consideration of freedom of speech from the administration and quasi-judicial functions of the legislation. As such, the proportionality test in s. 1 of the Charter has not been met.

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.

Anything can be labeled as “hate,” from academic studies showing racial differences in brain size (such as Professor Philippe Rushton’s ) to letters talking about engineering studies on rooms alleged to be gas chambers in Auschwitz to jokes to cartoons.

It is submitted that this is the devastating effect laws against hate can have, outside of the quasi-judicial process of the CHRT. The accusation of “hate” is used to label people and ideas as socially unacceptable, to marginalize and isolate them, to reduce their participation in society and their self-fulfillment . A further and very serious result is to justify increasing violence against people who are labeled as hatemongers.

It is submitted that section 13 is being used outside the CHRA process in ways that impinge on freedom of expression and the right to life, liberty and security of the person under section 7 of the Charter.

The facts established in Mock’s testimony show that the laws are having a devastating effect on the security of individuals and their right to free expression without harassment, both physical and legal:

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.

He stated that the label culture gave to a word or behaviour, determined how the person perceived it. [Facts, p. 201] By labeling Zundel and his ideas as “hate”, B’nai Brith profoundly influenced the culture in Canada and Zundel’s fate as well. He was ultimately found to be a threat to the national security of Canada in a procedure which was subsequently been found to be in violation of the Charter for nothing which he himself had done.

Like a runaway train, however, labeling will not stop with Zundel and other groups are now realizing that the “hate” label is the way to win the war of ideas by simply discrediting and silencing opponents.

Downs testified that the real danger of hate laws was that people who had a truth to be spoken and wanted to make a constructive criticism, were afraid to either because they would be prosecuted or because they would be seen as being insensitive and therefore racist when they weren’t. [Facts, p. 293] This has had a great chilling effect on professors at American universities, some of whom had told Downs they felt like they were walking on eggshells. The end result was that truth was not being tested because even speaking the truth could be insensitive. [Facts, p. 294-295] The speech codes had proven, he said, that nobody was immune to the temptation of moral bullying that came with the power to enforce orthodoxy. [Facts, p. 296-297]

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]


Downs testified that how such laws were enforced was determined often by political considerations. In Europe there were laws against Holocaust denial but not against denial of the harms of Communism. Stalin had killed millions of people but none of the genocide denial laws applied to the crimes of Communism. This was because many of the people behind the laws were sympathetic to Communism or didn’t consider it the same kind of problem. [Facts, p. 295]

Downs testified that with respect to speech codes, the clever people find their way around it, and those who are either stupid and don't know how to tone down their language or say the same thing in another way, or those who are just obstinate and stick to their guns, or people who are just simply trying to be intellectually honest about what they really think end up getting punished.

Who is being punished is being driven by who is willing to complain.

It is also driven by who the complainant is and who he is complaining against. Fromm introduced several complaints laid against several individuals and an anti-racist organizations, police and major media websites which were dismissed as being either vexatious or not covered by section 13. The complainants were investigated by the CHRC for their political associations and beliefs. [Facts, p. 140, 343-345]

A double and very political standard is being used to determine who can use section 13 and who cannot; worse, who will be subject to it and who will not. The complaint against CAERS was a mirror image of the case against Lemire, but they were handled in completely opposite ways. The steps Lemire took to remedy the complaint were ignored and the complaint proceeded.


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.

The evidence of expert Bernard Klatt was reviewed above and shows the extraordinary amount of communication and expression which takes place on the Internet.

Witness Bio: Bernard Klatt

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 British Columbia. Testified as an expert witness at the Zundel CHRC case. In May, 2006 testified at the Glenn Bahr hearing in Edmonton, Alberta.

[Expert Report filed with the Tribunal]

[Curriculum Vitae]

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.

There is no rational connection between section 13 and is objectives when books, newspapers and journals are freely available and legal in print versions. An example is “The International Jew” which is one of the matters complained of in this case. It is a historical work freely available in public, research and depository libraries, as shown by the evidence. [Facts, p. 26] An order banning the work from the Internet has no effect because the work is still freely available in other media.

When virtually the entire store of knowledge is now on the Internet, there is no limitation on what material might “expose to hatred and contempt.” The Bible has already been found to contain hateful words; historical works may contain ideas that expose many ethnic groups and religions to hatred. Scientific studies may expose to hatred.

Newspapers and editorialists across Canada have denounced section 13 and called for its repeal. [Facts, p. 356] When Goldberg sent out his email in 1994 about CHRC control of hate on the Intenet, he was met with a tremendous backlash. Canadians do not want section 13.

Section 13 cannot meet any proportionality test in such circumstances.

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]

The medium of the Internet is obviously totally different. It is a democratizing medium which allows public discourse by people who previously had no means to participate meaningfully in public debates or issues.

The Internet provides every means of questioning information and of counter arguing. One can put up a website, write comments on message boards or comment boxes, write essays which can be put on websites or sent out by email or text messaging. Internet message boards and blogs give visitors the immediate ability to respond to messages with equal prominence as the original posting. As a good example, in the Lemire case, a posting by Ian MacDonald was immediately followed by a diametrically opposing viewpoint.

The Internet gives the free opportunity to respond, as covered in the expert report of Persinger and in his testimony, and full opportunity for the educative functions of the CHRC and any other group which wishes to rebut what they consider to be “hate.”

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.

When section 13 was limited to messages communicated by telephone, access to the messages could not be terminated simply by pressuring the telephone company to disconnect the telephone service.

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 Bell Canada to disconnect his telephone service. Bell Canada had refused, citing its common carrier status under its act of incorporation and its prohibition on censoring the content of its customer’s communications. The common carrier status relied upon by Bell Canada remains intact today under section 36 of the Telecommunications Act. [Facts, p. 100-104]

Once section 13 was enacted, the common carrier status of telephone companies forced those wishing to shut down telephone hotlines to complain to the CHRC and undergo the procedure set out in the statute which included a public hearing and an opportunity for the respondent to make submissions and tender evidence.

This situation has now changed with the extension of section 13 to computer communications, including the Internet. As ISPs do not have any common carrier protection, they were quickly targeted by the CHRC and by NGOs such as the Canadian Jewish Congress, B’nai Brith and the Simon Wiesenthal Centre (SWC), the intervenors in this case.

The first public controversy which arose concerning the liability of ISPs for alleged hate messages involved Bernard Klatt , the Internet expert called by the respondent.

In the 1990’s Klatt had an ISP business which hosted a number of websites. Klatt received a telephone call from Sol Littman of the Simon Wiesenthal Centre who asked him to remove certain websites he was hosting. Before Klatt had a chance to too look at the material, the SWC held a press conference. Klatt’s hometown of Oliver was painted as Canada ’s “Hate Capital.” B’nai Brith’s lawyers contacted B.C. Telecom in an attempt to pressure it to disconnect Klatt’s service. Newspapers portrayed Klatt as being an enabler of white supremacists and the SWC subsequently attempted to have him charged criminally under s. 319 of the Criminal Code.

Klatt’s position was that he had no legal expertise to determine whether something was hate or not and neither did the SWC. He therefore refused to take down the websites. His position was in line with that of Electronic Frontier Canada which had a policy supporting common carriage requirements for all network providers. [Facts, p. 178-182]

When Klatt shut down his ISP business, another ISP took over his dialup clients but refused the controversial websites as it was a “community business” and didn’t want to get into controversy. [Facts, p. 180-181]

Klatt’s experience was the first shot in what has become a concerted effort by the CHRC and its “stakeholder” groups such as the Canadian Jewish Congress, to pressure or coerce ISPs into removing websites unilaterally without need for a hearing before the CHRT.

In the mid-1990’s, the CHRC began approaching ISPs even though section 13 at that time was limited to telephone messages. It had announced in public speeches by the Deputy Chief Commissioner that it considered it had jurisdiction over the Internet and would accept complaints about material transmitted over it. [Facts, p. 108-109]

In 1994 and 1995, officials of the CHRC wrote to and met with the administrators of the National Capital FreeNet “to discuss how to deal with the use of the NCF for the posting of messages which may contravene section 13...” A protocol was suggested to NCF for dealing with hate messages whereby the CHRC would notify NCF of messages considered to be hate messages and NCF would take appropriate action. This could include warning the offending member or terminating or suspending membership. Suggestions were made that user agreements contain a clause prohibiting the use of the NCF to communicate hate on the prohibited grounds and that this would “limit your liability.” [Facts, p. 114-116]

The CHRC has continued this pressure on ISPs and expanded it to include foreign websites having no relation to Canada and over which they have no jurisdiction. Letters written to foreign websites and ISPs asked to take “appropriate” action. [Facts, p. 116-117]

A letter was written to an American ISP hosting the Zundelsite with the result the website was removed as being contrary to the ISPs acceptable use policy. [Facts, p. 117] This was done even though the Zundelsite is legal in the United States .

CHRC senior policy analyst Harvey Goldberg testified there were no policies with respect to the sending of letters to ISPs and no policies regarding the method of approaching ISPs. He saw no problem with the letters since the CHRC was simply asking corporate ISPs to be aware of the laws of Canada and abide by them as good corporate citizens. [Facts, p. 117]

Goldberg justified all contacts with ISPs under section 27(h) of the CHRA. It was part of the persuasive part of their mandate. As a policy analyst, he believed it was appropriate for the CHRC to seek to censor material before a hearing. ISPs, represented by the industry organization, Canadian Association of Internet Providers, had taken a “constructive and collaborative” approach with the CHRC. [Facts, p. 117-120]

As part of this work, justified under s. 27(h), Goldberg and other members of the CHRC discussed the use of filters by ISPs (to filter out certain words), the terms of acceptable use policies and complaints procedure models having the goal of avoiding litigation.

Goldberg clearly admitted that the CHRC wanted to work “proactively” using the powers under section 27(h) and that meant hate messages being dealt with before the problem reached the stage of a complaint being laid. The goal of the CHRC meeting with CAIP was to set up systems to avoid complaints and avoid the CHRT. [Facts, p. 121]

The CHRC expected ISPs to know what material constituted hate under section 13. The ISPs were advised that the standard to apply was set out in Taylor . Goldberg testified the ISPs all had the resources to hire legal counsel should they need assistance in knowing what constituted hate on their services. [Facts, p. 121] When a small ISP was held liable in the Kulbashian case, a member of CAIP expressed relief to Goldberg when he informed them by email that this was limited exception to section 13 because the ISP was not acting simply as a common carrier but had involved itself in the discriminatory practices. [Facts, p. 122]

It is clear from the testimony of Goldberg and the extensive emails and other correspondence going back and forth between ISPs and the CHRC that the guarantee to freedom of speech has been gravely damaged by the extension of section 13 to the Internet.

The CHRC’s goal under section 27 is to ensure ISPs quickly deal with troublesome websites and the ISPs goal is to avoid a Klatt-like controversy which smears and defames them as “enablers” of “hate” and exposes them to liability under section 13. Without the protection of common carrier status, ISPs are extremely vulnerable to this type of public tar and feathering and extremely vulnerable to complaints under section 13 unless they quickly remove material complained of.

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 he had complained to Bell Sympatico about material posted by Tomasz Winnicki. When Bell took no action, Warman took the matter to the media. Bell quickly removed Winnicki’s material as a result. Another complaint to Bell Sympatico about a website in British Columbia resulted in the rapid shutdown of another website. [Facts, p. 85]

He admitted to contacting a number of ISPs over the years in order to pressure them to shut down websites, including the ISP hosting the website of Fred Kyburz against whom he filed a complaint under section 13. [Facts, p. 85] The Kyburz decision found:

“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.

The threat of section 13 to ISPs is not theoretical. Dean Steacy testified concerning the complaint filed against AOL Canada about messages posted on its message boards on the same-sex marriage debate. The complaint against AOL was dismissed because it took “appropriate” actions: it removed the messages, changed its acceptable use policies, put keyword filters on and simplified the process for an individual to complain. The filter prevented certain language from being posted. The changes in the user policies made it clear that violators would be cut off from their AOL account in the event of a violation. [Facts, p. 143-145]

The Lemire case itself is another example of the determination of the CHRC and complainant Warman to hold a small provider of a forum for people to chat and communicate, liable for anonymous posts made to that forum. Section 13 will not shut down very large ISPs but it has the power to shut down the Lemire’s and bloggers who host message boards and comment boxes. The remedial steps Lemire took did not stop the proceedings as they did for CAERS and AOL. He was treated differently and there was a political and punitive purpose in continuing the proceedings.

A major player in pressuring ISPs to control content is the Canadian Jewish Congress and its efforts show perhaps most chillingly where section 13 will take Canadians’ rights to freedom of speech on the Internet.

A letter from the CJC to the CHRC set out what it wanted:

“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 Canada , be deemed sufficiently problematic to be referred to tribunal. Such a determination could then be passed to Canadian Internet Service Providers who would then block access.”

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]

The effect of section 13 is devastating because ISPs cannot and will not resist pressure on them to remove websites alleged to be hate. These pressures are coming from the CHRC, a body with the legislative ability to lay complaints against them, and from powerful special interest groups such as the Canadian Jewish Congress and the Simon Wiesenthal Centre which have access to the media and the ability to cause public controversy. The Klatt case provides the classic take-down protocol consisting of defamation, smears, calls for criminal prosecution and the ending of an ISP business, in the instance of a stubborn ISP refusing to take material down unless ordered to by a judicial authority.

ISPs do not have the expertise or interest to determine what is “hate” under section 13 and what is not. Klatt made this point during the attack on him by the SWC in the 1990s. If material is to be censored as “hate” it must be done in a judicial setting with due process and the right to be heard and a right to judicial review.

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.

Those who have the power to cause public controversy in the media can cause business loss to the ISP. And the threat of a section 13 complaint remains if the pressure does not initially work.

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 investigator is entitled to carry out such inquires as are reasonable necessary for the investigation of a complaint, including inspecting and obtaining copies of books or any other documents. There is no doubt this would include an inspection of computers and hard drives.

This means that simply upon the filing of a complaint under section 13, perhaps for posting on a message board, a person can be subject without notice to a search of his home and copies of his computer or hard drive taken by a CHRC investigator. Once documents are in the possession of the CHRC, they are disclosed to the complainant and all other parties if the matter goes to a hearing, pursuant to the Rules of Procedure of the CHRT.

This is not conjecture as a copy of the hard drive of respondent James Richardson was provided to Richard Warman under the disclosure rules of the CHRT after the CHRC had obtained it from London police. . [Facts, p. 167, 172]

It is submitted that the extension of section 13 to the Internet and all computer communications has given the complainant and the CHRC almost unrestricted access to information which is a violation of respondent’s right to privacy and security, contrary to section 7 of the Charter. It will chill free expression by Canadians when they decide it is no longer worth risking all loss of privacy.

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.

Under s. 43, warrants can be obtained to obtain subscriber information from ISPs to unmask the identity of anonymous posters. Warrants were obtained in the complaint against AOL Canada, a case in which anonymous posters were discussing the same-sex marriage issue, a highly controversial social and political matter which raised passions on both sides of the question. It is submitted that such posters should expect the right to anonymity unless and until a sufficient basis has been made that their identity be revealed. Instead, the CHRC was able to obtain their subscriber information, including names, addresses, telephone numbers and perhaps IP addresses on an ex parte application where the only thing they needed to prove was a complaint and that there were “reasonable grounds” to believe “relevant” evidence was available at the premises. The standard for obtaining the warrant is so low that it can be obtained against an ISP simply by proving a complaint. There is no requirement that the CHRC establish that the complaint has any basis, or any chance of success.

In 2005, a complaint laid against a John Doe resulted in the CHRC using its warrant power to identify another individual through a post office box. A complaint and subsequent warrant can be abused to intimidate message board hosts, ISPs and bloggers who have comment boxes. These are vibrant and vital aspects of expression on the Internet. The standard for unmasking the identity of such anonymous posters is so low that it will chill potential posters from exercising their right to speak anonymously. The possibility of losing anonymity in a future complaint can intimidate anonymous posters into self-censoring their comments or simply not commenting at all. This chilling effect is aggravated by the meaninglessness of the words “hatred and contempt.” [John Doe No. 1 v. Cahill, 2005, C.A. No. 04C-011-022.]

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]

This was in violation of the rules of the CHRT which require disclosure of all relevant documents or an identification of documents for which privilege is claimed.

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]

Steacy also testified that he had signed up on the Freedomsite when the complaint initially came in but he couldn’t remember if he posted anything. [Facts, p. 159] None of this was disclosed to Lemire.

There was no control on the use of the accounts which were used by several investigators. No check was made on what posts were being made by the investigators on message boards or whether respondents were being engaged on message boards. [Facts, p. 162] There were no CHRC guidelines for investigators about what kind of posts they could make using aliases. [Facts, p. 166] There was no central registry to know the various false identities used not only by investigators on message boards, but also police [Facts, p. 171]

In the Bahr case, police witness Sgt. Stephen Camp admitted that a poster on Stormfront named “Estate” was in fact an Edmonton police officer. Estate was a prolific and vicious poster.. [Facts, p. 79] Steacy didn’t know how or if other investigators used the “Jadewarr” account. [Facts, p. 166]

Steacy did not think the policy or legal members of the Hate Team knew about the use of these accounts. [Facts, p. 159] Goldberg, the policy member, denied knowing anything about “Jadewarr.” [Facts, p. 114] The CHRC had never made a study if any of the messages that were subjects of complaints were in fact incited by investigators or police or complainants. [Facts, p. 166]

The decision by the CHRC not to follow its legal obligations of disclosure to the CHRT resulted in evidence being given to the tribunal which was misleading and deceptive. This occurred in the Beaumont case when a posting from Stormfront was printed off by Steacy using the “Jadewarr” account and was inadvertently disclosed to Beaumont . The CHRC forced Lemire to go to judicial review at the Federal Court to obtain the answers to the questions about who “Jadewarr” was. It has followed a policy of deception with the tribunals in section 13 cases which is appalling in its implications. Respondents were denied disclosure of the case against them and the CHRTs were misled about material facts.

The culture of anonymity on message boards, which encourages free expression of honest and controversial views, was used and exploited to the detriment of respondents and tribunals hearing these cases.

It raises the question of how many other anonymous posters on the message boards which have been and are the subject of section 13 complaints were in fact police, CHRC investigators or other anti-racist activists. There is no way of knowing. In this case, the Tribunal is being asked to find Lemire liable as webmaster for anonymous postings on a message board. How many of those postings were planted in order to support this complaint or to entice others to post messages.

The extension of section 13 to the Internet has opened up avenues for abuse of process which were unavailable when it was limited to telephone lines. The failure to disclose documents and information has resulted in tribunal proceedings which were unfair and where respondents were denied natural justice. The effect on the freedom of speech by this type of deceit, made possible by the extension of section 13 to the Internet, is one which means section 13 and 54 cannot meet the test of proportionality.

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]

Documents disclosed after the March 25, 2008 hearing show that the CHRC regularly communicated with police forces about respondents, exchanged information and obtained evidence from police that had been seized in raids pursuant to warrants under the Criminal Code. [Facts, p. 173-177] Evidence obtained from police included Crown briefs setting out the most personal information about respondents, information obtained from motor vehicle databases, and CDs of personal hard drives seized from the home of James Richardson and, apparently, Alex Kulbashian. The CD copy of Richardson ’s hard drive was given to Warman as part of the CHRC’s disclosure obligations and he testified in the Kulbashian case that he studied it extensively. [Facts, p. 167] Steacy testified he had gone to police officers and requested information about dozen times and had given police information for their purposes about twice. [Facts, 171]

In this case, Warman laid criminal complaints against Lemire and Harrison after laying the section 13 complaint. Police contacted the CHRC to get copies of evidence but didn’t follow up after being requested to put it in writing. This information was not disclosed to Lemire for over three years. [Facts, p. 31-32] Respondents to human rights proceedings, a civil procedure, are given no warnings that anything they might say or provide to the CHRC will be given to police, for use in possible criminal proceedings. The notification letter they are sent when they are initially informed of the complaint asks them for information which police could use in criminal charges on the same material. The rights of respondents under s. 7 of the Charter are thereby violated when this information flows from the CHRC to police.

Police information flowing to the CHRC means that the CHRC is gaining access to information from sources such as surveillance, motor vehicle databases, and CPIC that only police have access to. This could be a violation of the warrants issued under the Criminal Code for search and seizure purposes.


Section 13 has in fact become two provisions:

It deals solely with effects when no penalty is requested under section 54. But what will cause someone to be “exposed” to hatred or contempt cannot be predicted or known. The offense which one person might feel will not be felt by another. It will be totally dependent on the person’s personality, life experiences, strength of group self-identity and so on. There is no universal “psychological distress” that warrants the violation of the free speech of Canadians. Instead of teaching people to be “victims”, people should be taught that free speech is their right and they have the power to “talk back.” Today, with the Internet, that power to “talk back” has been brought to everyone in a meaningful and extraordinary way.

The other section 13 is the one where a penalty is demanded by the complainant and the CHRC as in this case. This is the section 13 that has now been used in every single case decided since the provision was extended to the Internet (except for Eldon Warman as noted above). It brings penal consequences, stigma, and moral blameworthiness. It transforms the provision into a quasi-criminal offence with none of the procedural or substantive protections accorded a person charged under the Criminal Code. Parallel criminal proceedings under s. 319 of the Criminal Code have been instituted in several cases, subjecting the respondent to double jeopardy and seizure of his computer and other material by police.


In both cases, section 13 has never been used as a remedial provision. The study of how cases are resolved, set out above, shows it is not used to remedy discrimination but punish and rebuke the persons caught in its net. The CHRC and complainants do not want “remedies”, they want orders that can be used to imprison the respondent later for any subsequent contempt.

Section 13 is a violation of the rights of Canadians to freedom of conscience and expression and their rights to life, liberty and security of the person guaranteed by the Canadian Charter of Rights and Freedoms. These violations cannot be justified under s. 1 of the Charter.

Order Requested

The respondent requests the orders set out in his motion dated December 6, 2005.

Dated August 6, 2008.

Barbara Kulaszka

Solicitor for the

Respondent Marc Lemire

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Constitutional Challenge of Section 13 and 54 of the Canadian Human Rights Act

.Section 13 of the CHRA is the single largest threat to Freedom of Speech in Canada !


Holiday Inn Oakville Centre

Argus Ballroom

590 Argus Road

Oakville , Ontario


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 Barbara Kulaszka , filed a devastating constitutional challenge of Section 13 (internet censorship) and Section 54 (impose hefty fines) of the Canadian Human Rights Act.

The 2005 Constitutional motion can be read > here <

The 2008 final submissions can be read > here < and > here <

After 26 hearing days, 8 interveners and 11 witnesses spread across two years and 4 Ontario cities, the closing arguments are finally being presented. It will be a historic moment filled with shocking evidence.

The National Post has described the grilling the CHRC took by Barbara Kulaszka in March as a “landmark disaster for the Canadian Human Rights Commission”.

Journalist and Free Speech advocate Ezra Levant described the case against Lemire on his Blog:

“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 Canada 's Privacy Commissioner.”

At the start of the Lemire hearing, no one in Canada had any idea that the CHRC was such a corrupt and dirty organization, intent on stealing peoples right to freedom of expression. Or that the CHRC was running a secretive internet spying ring, intent on entrapping all those in their path. After 1,700 days under the Iron heel of the fascists at the Canadian Human Rights Commission, the Lemire hearing is heading to a finale. If the National Post called the day Barbara Kulaszka grilled the CHRC totalitarians a “landmark disaster”, just wait till they see the closing arguments!

All the evidence uncovered during the last 5 years will be brought out into the open. From the CHRC’s spying apparatus to their totalitarian investigative techniques, to the absurd lie the CHRC is pushing ... that “hate speech” causes mental “trauma”. The complete abuse of process in the Lemire case to even the alleged stealing a private woman’s internet connection. In a multimedia presentation, your eyes will be opened to what the CHRC really represents, and what a revolting crowd the “human rights” industry really is. You’ll be shocked to learn about the hate filled bureaucrats who, with the immunity of the state, are able to propagate some of the worst racist material online. Are they prosecuted? NO, actually promoted

Sacred cows will be crushed. 30 years of censorship is about to come to an end! Be part of history in the making, and come out to show your support. Show that Canadians love freedom, and show the Tribunal, that Canadians will stand as silent witnesses to their trampling of 500 years of our enshrined rights.


Closing Arguments will be held at:

Holiday Inn Oakville Centre

Argus Ballroom

590 Argus Road

Oakville , Ontario

Sept 15 – 17, 2008

9:30am to 5:00pm daily

Driving Directions







[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 Barbara Kulaszka and myself have demonstrated what two dedicated researchers can accomplish against overwhelming odds. We have single-handedly and doggedly fought the System and exposed the corrupt underbelly of the "Human Rights" Commission's fanatics. Nothing ever comes easy when you are fighting such a racket. Our case is a seminal one, where the outcome will have serious implications on our right to think and speak freely in this country for generations to come. All Canadians will benefit if we manage to get this shameful law expunged from our legal books.

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.

PayPal: Send your donation to:

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By Mail:

Please send your check or money order to:

Marc Lemire

152 Carlton Street

Box 92545

Toronto , Ontario

M5A 2K1


Every single cent raises goes directly to this case and the legal defence fund.

It’s time to end the censorship of the extremist Canadian Human Rights Commission!

Stop Section 13 of the Canadian Human Rights Act