Thursday, September 18, 2008

LEMIRE Hearing Day 3 - Media Wrap-up. National Post Editorial Board chimes in to support Lemire's position

LEMIRE Hearing Day 3 - Media Wrap-up.  National Post Editorial Board supports Free Speech

 

1:  AM770 (Calgary): The Marc Lemire Case - Why It Matters

2:  Globe and Mail: Ruling reserved in case to strike down section of Human Rights Act

3:  National Post Editorial Board: At last a sane voice questions human rights bureaucracy

4:  Globe and Mail: Lawyer spells out sweeping impact of ruling - Adverse decision would force shutdown of all Internet message boards, tribunal told

5:  National Post: Hate speech law creates 'political elite': lawyer

6:  National Post Editorial: Big Brother's unlikely critic

 

 

 

 

 

 

 

The Marc Lemire Case - Why It Matters

http://www.am770chqr.com/Blogs/TheWorldTonight/BlogEntry.aspx?BlogEntryID=10008430

(NOTE:  An audio interview with Marc Lemire can be downloaded from this site)

 

The adjudicator has reserved his decision in the case of Marc Lemire's constitutional challenge of Section 13 (more at this post). Lemire was the subject of a human rights complaint filed under Section 13 - a complaint that was filed some five years ago. We spoke with Marc Lemire Tuesday night about his case - you can listen to that conversation via the player on the right.

 

Whatever one might think of Marc Lemire, he has suffered an injustice under the thumb of this complaint and the ongoing ordeal. Frankly, we never should have ever heard of Marc Lemire in the first place. Would anything really been accomplished by shutting down his websites and censoring him?

 

As you hear in the interview, Lemire rejects any suggestion that he's a bigot - and to be fair, the complain against him seems to stem from the words and postings of others. That said, his associations and his involvement on websites like Stormfront and Vanguard News Network are revealing (not to mention the creepy "white rights" banner included in a photo on his own website).

 

In any event, it shouldn't matter. Even if one finds Lemire offensive or the content on his website offensive, he's entitled to his freedom of speech - or at least should be.

 

This case, however, isn't just about Marc Lemire. As I've argued here, here, and here the implications of cases like this are far reaching indeed.

 

Take this, for instance:

 

Every Internet message board in the country will have to shut down if an Ontario man - Marc Lemire - is found liable for vile comments that were posted on his website, a Canadian Human Rights Tribunal was told yesterday.

"It's preposterous," said Douglas Christie, a lawyer representing far-right groups who advocate free speech. "It is the same as the chairman of a meeting being held liable for someone who shouts something out."

He warned that an adverse decision would prove destructive not just to a sprinkling of characters on the "lunatic fringe," but to mainstream newspapers, magazines and other institutions that have launched online message boards and chat rooms.

Mr. Christie said a single paragraph on a newspaper website, left on an Internet message board for just a minute or two, could generate a complaint that would spawn three years of human-rights litigation.

 

And the lawyer for the Canadian Human Rights Commission seemed to confirm the point:

 

Mr. Hadjis questioned whether it is fair, in general, to hold Web site owners accountable for what others may write in their comment sections, possibly without their knowledge, consent or endorsement.

He used the example of the CBC, which operates several chat forums for readers to discuss news stories, and asked what would happen if a hateful message somehow got past automatic filters and live editors.

Without commenting on the CBC directly, Ms. Blight said there is no "free pass" for anyone.

 

"No free pass for anyone" - there it is. That's why we all have a vested interest in this case.

 

Keep in mind that under Section 13, intent doesn't matter. So if I wrote a post about racist bigots, and someone posted a racist, bigoted comment, perhaps I would leave it there as an example of the sort of bigotry I was talking about. But since "no one gets a free pass", I could be held liable.

 

Or let's say that bigoted comment wasn't really from a bigot at all, but someone trying to get me in trouble. It's very easy to use an anonymous pseudonym and write whatever you want to write. It follows, then, that it would be very easy to post numerous racist comments on a blog or forum or chatroom and then turn around and declare that blog or forum or chatroom to be racist.

 

And what counts as offensive or bigoted? That, too, could be subjective since Section 13 speaks of content that is "likely to expose a person or persons to hatred or contempt" - as we've seen in the cases of Maclean's magazine and the Western Standard, there are those who take that definition pretty far.

 

Mr. Christie makes an interesting point:

 

...(Christie) cited various historical issues that, if discussed truthfully, could conceivably expose certain groups to hatred: the Crusades, the Inquisition, the Protestant Reformation, the battles of Waterloo and Tours, the Charge of the Light Brigade and the War of the Roses.

 

The Criminal Code restrictions on speech are sufficient - scrap Section 13.


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Ruling reserved in case to strike down section of Human Rights Act

http://www.theglobeandmail.com/servlet/story/RTGAM.20080917.wlemire0917/BNStory/National/home

 

Globe and Mail Update

TORONTO — Behind every genocide and pogrom in history lies a trail of racially intolerant screeds that helped distort the way a minority group was viewed, a human rights tribunal hearing was told Wednesday.

“The road to Auschwitz was paved with hate propaganda, Mein Kampf and the Protocols of the Elders of Zion,” said Marvin Kutz – a lawyer for B'nai Brith Canada – on the final day of a hearing into alleged hate material posted on an Internet message board operated by defendant Marc Lemire.

Mr. Lemire and his supporters have asked tribunal commissioner Athansios Hadjis to strike down Section 13 of the Human Rights Act, which permits a complainant to launch a human rights proceeding against anyone has allegedly promoted contempt or hate towards an identifiable group.

They claim that the section infringes the Charter right to free speech, chilling open debate and leaving individuals vulnerable to harsh punishment simply for participating in heated discussion.

However, Mr. Kurz argued that Section 13 is a vital weapon in the Internet age, when minorities can be mocked, belittled and threatened instantaneously with a single key-stroke.

“It isn't a matter of scare-mongering to say that the Holocaust wasn't a unique event in history,” Mr. Kurz said. “Allowing the spread of hate is what permits the next level to occur. Society needs to deal with it in a civil context first, so that it doesn't get to a criminal context.”

Steven Skurka, a lawyer for the Simon Wiesenthal Centre for Holocaust Studies and the Canadian Jewish Congress, rejected the idea that Section 13 stifles honest debate: “Only the most virulent and poisoned kind of expression” gets caught by the section, Mr. Skurka said.

“We support the right to offend and the right to be offensive,” Mr. Skurka said. He said that Section 13 only comes into play after healthy debate has been manipulated into the active promotion of hatred toward a vulnerable group.

“Our ultimate submission is that hate propaganda does nothing to advance freedom of expression and is antithetical to the values of Canadian society,” Mr. Skurka said.

A lawyer for the federal Justice Department, Simon Fothergill, endorsed the notion that hate speech can have a tangibly negative effect on those who hear it.

“Hate speech does, indeed, cause crime – and crime of a very serious nature,” he said.

Mr. Fothergill said that it is absurd to suggest that it impossible to debate major historical events without running the risk of offending a particular religion or cultural group: “There's so much one could say without ever getting close to that line,” he said.

He also laughed off the notion that Internet messages boards will become impossible to operate if Section 13 complaints are allowed to continue. Webmasters or operators can place disclaimers on their site and apologize for offensive material that inadvertently gets on their site, he said.

“If you are operating a website that deals with [offensive] subject matter … you might want to take extra precautions,” he added.

Barbara Kulaszka, a lawyer for Mr. Lemire, told the tribunal that the mainstream media paid no attention to unfairness of Section 13 complaints until Macleans magazine columnist Mark Steyn was targeted by a Muslim group earlier this year.

“Every religion is going to start using it,” she warned. “Just look at the first Muslim complaint in 30 years. Everyone went nuts. The media woke up, and said: ‘It isn't just Ernst Zundel and his creepy right-wingers being attacked. They are going to come after us.'

“You're going to be caught in the cross-hairs,” she cautioned.

An intervenor who supports Mr. Lemire – Paul Fromm – told Mr. Hadjis that virtually all of those targeted in Section 13 complaints have been modestly educated, “lower-class” individuals who tended to phrase objections to immigrants or particular groups in crude, hyperbolic “bar talk.”

“Not everyone can speak like an Osgoode Hall-educated lawyer, with nuances and exceptions, and so on,” Mr. Fromm said.

He also denounced a CHRC lawyer for saying earlier this week that racial jokes ought to be fair game for Section 13 complaints: “My response is that to condemn jokes is going pretty far down the road to the old Soviet Union,” he said.

Mr. Fromm also criticized the fact that 100 per cent of the Section 13 complaints referred to tribunals by the Canadian Human Rights Commission have been successful. “A 100 per cent success rate?” he said. “That doesn't happen this side of North Korea.

However, Mr. Kurz said that Mr. Fromm's “scurrilous attack on the tribunals' integrity” was misplaced. Rather, the CHRC success rate shows that it only targets material that contains “incredibly awful” elements of hatred, Mr. Kurz said.

Mr. Kurz also argued that a recent complaint by Muslim groups against was dismissed by the Commission not because it had been cowed by a public and media backlash, but because it was without merit.

Mr. Hadjis has reserved his ruling.

 

 

 

National Post Editorial Board: At last a sane voice questions human rights bureaucracy

 

http://network.nationalpost.com/np/blogs/fullcomment/archive/2008/09/17/national-post-editorial-board-at-last-a-sane-voice-questions-human-rights-bureaucracy.aspx

 

Posted: September 17, 2008, 9:30 AM by Kelly McParland

Editorial, Full Comment

 Canadian Human Rights Tribunal (CHRT) adjudicator Athanasios Hadjis performed a valuable service on Monday by raising doubts about whether there is any purpose in having agencies like his police the Internet for hatred. Mr. Hadjis is currently refereeing a controversial Charter of Rights battle between far-right Web portal operator Marc Lemire and activist Richard Warman. It is all part of a complaint first launched by Mr. Warman as long ago as 2003 -- which goes to show why Mr. Hadjis may be experiencing some skepticism, nay, even exasperation, over the possibility of battling Web hate by means of a dilatory, complaint-driven, quasi-judicial, often-Kafkaesque bureaucratic procedure.

Mr. Lemire is challenging section 13 of the Canadian Human Rights Act, which forbids hateful “telecommunication undertakings” as an unacceptable infringement on the Charter right to freedom of opinion and expression. The federal government contends that this issue was settled for all time with the 1990 Canada vs. Taylor case, in which the Supreme Court okayed a CHRT complaint against a telephone hotline run by a white-power group. Strictly on legal grounds, this position doesn’t stand up to the briefest scrutiny. Taylor was heard at a time when no one yet foresaw the rise of a digital interactive medium with the scope and ubiquity of the Internet. Only in 2001 was the Human Rights Act changed so that the Internet is defined as a “telecommunication undertaking” under the meaning of s. 13. This post-Taylor amendment is itself perhaps a constitutionally challengeable law.

But more importantly, the test of s. 13’s status as a “reasonable” infringement on free expression when it comes to telephone message machines needs to be performed anew with the Internet in mind. According to established constitutional law, the government must show that the section is rationally connected to its objective of protecting minorities, and that it does not have serious unintended chilling effects on expressive freedom. We can think of several examples plucked from this year’s headlines that go straight to this question: Anyone who has followed the human rights industry’s prosecution of Maclean’s and Western Standard magazines cannot seriously contend that speech has not been chilled in this country by censorious bureaucrats armed with s. 13 (and its provincial equivalents).

It’s unclear how s. 13 could be salvaged. On one hand, any limit to free expression that is likely to be ineffective or applied selectively, as the CHRT’s Internet witch hunts arguably are, will not and should not survive Charter scrutiny. And, as Mr. Hadjis points out, the same is true of any statutory measure which leaves too large a “grey zone” for Internet commenters to fall into, or which imposes an unfair burden on Webmasters who must police long comment threads or large forums for anonymous hatred.

However offensive his views are to Canadians, Mr. Lemire is furthering the cause of free speech by challenging the application of Canada vs. Taylor to a modern communications landscape that bears scant resemblance to that of 18 years ago. It takes a truly Orwellian law to turn a man like Mr. Lemire into a free speech martyr. But s. 13 and those who administer it somehow have managed the task. We applaud Mr. Hadjis for recognizing that Mr. Lemire raises legitimate issues -- and we look forward to the day when this nation’s highest court voices its agreement.

 National Post

 

 

 

Lawyer spells out sweeping impact of ruling

Adverse decision would force shutdown of all Internet message boards, tribunal told

JUSTICE REPORTER

Every Internet message board in the country will have to shut down if an Ontario man - Marc Lemire - is found liable for vile comments that were posted on his website, a Canadian Human Rights Tribunal was told yesterday.

"It's preposterous," said Douglas Christie, a lawyer representing far-right groups who advocate free speech. "It is the same as the chairman of a meeting being held liable for someone who shouts something out."

He warned that an adverse decision would prove destructive not just to a sprinkling of characters on the "lunatic fringe," but to mainstream newspapers, magazines and other institutions that have launched online message boards and chat rooms.

Mr. Christie said a single paragraph on a newspaper website, left on an Internet message board for just a minute or two, could generate a complaint that would spawn three years of human-rights litigation.

His comments came in a closing submission to tribunal commissioner Athanasios Hadjis, who must decide whether Mr. Lemire should be held liable for posted material that ridiculed and belittled Jews, blacks, Italians, homosexuals and other groups.

Mr. Christie also warned against closing an important valve on heated expressions of dissent: "If you don't allow the ventilation and expression of extreme views, the alternative is extreme action," he cautioned.

"This is one of the most important decisions that could ever be made by this tribunal," Mr. Christie added. "What is at stake is control of the media of communications. The effect of this legislation is to create a political elite who can alone communicate their views - and decide who else can do so."

He also disparaged the Canadian Human Rights Commission for the way it dismissed a recent complaint by Muslim groups against Maclean's columnist Mark Steyn. The groups had used a controversial section of the Canadian Human Rights Act - Section 13 - to complain that Mr. Steyn's writing exposed Muslims to contempt or hatred.

Mr. Christie branded it a "politically convenient" decision issued by bureaucrats who had been cowed by a fierce attack mounted by mainstream media over the Steyn complaint.

"They dismissed the complaint and waved it around, saying: 'See? Aren't we fair?' "

The lawyer accused the commission of steadily throttling free speech, and said that every historical debate worth having - from the rightness of the Crusades to Genghis Khan's sacking of portions of Europe - runs the risk of offending particular races or religions.

"What controversial statement isn't seen as vile by somebody?" he asked. "Different religious groups are now aware that they can use this law for their own religious ends.

"It's so easy. It's a beautiful system for destroying your enemies. ... But the truth is more important than anyone's hurt feelings."

However, Mr. Christie also warned that the very groups who launch complaints to silence their critics may soon find that the tables have turned on them, should their opponents choose to adopt the same tactic.

A lawyer for Mr. Lemire, Barbara Kulaszka, told tribunal commissioner Mr. Hadjis that Section 13 complaints make up just 1 per cent of the cases the commission reviews, yet a wholly disproportionate number of them are referred to full tribunal hearings.

She also attacked the complainant in the Lemire case - Richard Warman - for allegedly making a career out of filing complaints that tie up in costly litigation those whose politics he dislikes. Ms. Kulaszka said Mr. Warman has targeted 26 individuals in his complaints.

Noting that Mr. Warman used to work as an investigator for the commission, Ms. Kulaszka accused him of coaching one of his successors in how to investigate and to use material against Mr. Lemire.

 

 

 

Hate speech law creates 'political elite': lawyer

http://www.nationalpost.com/news/canada/story.html?id=794950

 

Joseph Brean, National Post  Published: Wednesday, September 17, 2008

OAKVILLE - Canada's human rights hate speech laws can, and eventually will, prohibit discussion of any historical conflict in which religion or race played a role, according to a leading defender of Canada's most notorious far-right figures.

Doug Christie, addressing the hate speech hearing of freedomsite.orgWeb master Marc Lemire on behalf of the Canadian Free Speech League, said Section 13 of the Human Rights Act, which prohibits messages "likely to expose" identifiable groups to hatred, has created "a political elite who alone can communicate their views and decide who else can communicate." Originally formulated for telephone hate lines, Section 13 now applies to the Internet and, by extension, a wide array of published material.

"We believe what is at stake is control of the media, because now the Internet is the home for Maclean's magazine, the National Post, and not just what used to be called the lunatic fringe," Mr. Christie said.

Mr. Christie is best known as a defence advocate in high-profile cases such as those against anti-Semitic teachers James Keegstra and Malcolm Ross, and Holocaust denier Ernst Zundel. His failed defence of neo-Nazi John Ross Taylor at the Supreme Court in 1990 now stands as the leading precedent on hate speech in Canada, which guides Section 13 cases.

Mr. Lemire is accused under this law concerning messages posted by other people on the long-defunct chat forum of his Web site; for a satirical poem about immigrants he posted on a U. S. white supremacist Web site; and for his alleged involvement with jrbooksonline.com,a clearing-house for historical articles on white supremacist or anti-Semitic themes, such as Henry Ford's The International Jew. Although Mr. Lemire's name was once listed as an administrative contact, he says he set the site up for an unidentified American.

Mr. Christie said the Taylor precedent did not envision an Internet in which people can engage in a dialogue, as opposed to passively listen to recorded messages.

"True belief is intolerant and conflict is inevitable where people believe different things," he said.

In a rhetorical flourish, he cited various historical issues that, if discussed truthfully, could conceivably expose certain groups to hatred: the Crusades, the Inquisition, the Protestant Reformation, the battles of Waterloo and Tours, the Charge of the Light Brigade and the War of the Roses.

Mr. Christie compared Richard Warman, a former Canadian Human Rights Commission employee and serial Section 13 complainant who brought the case against Mr. Lemire, to Tomas de Torquemada, the leader of the Spanish Inquisition, as someone who is "creating heresy where he wants to find it, then becoming a hero for prosecuting it."

He said the Canadian Human Rights Commission's recent rejection of a prominent complaint of Islamophobia against Maclean's magazine, under Section 13, was a "convenient afterthought" rather than a principled application of law. "I think what they thought about was the political implication of prosecuting Maclean's magazine, and the media's reaction," he said.

Final submissions in Mr. Lemire's case are expected to conclude today, nearly five years after the complaint was filed.

 

Big Brother's unlikely critic

National Post  Published: Wednesday, September 17, 2008

 

http://www.nationalpost.com/opinion/story.html?id=794956

 

Canadian Human Rights Tribunal (CHRT) adjudicator Athanasios Hadjis performed a valuable service on Monday by raising doubts about whether there is any purpose in having agencies like his police the Internet for hatred. Mr. Hadjis is currently refereeing a controversial Charter of Rights battle between far-right Web portal operator Marc Lemire and activist Richard Warman. It is all part of a complaint first launched by Mr. Warman as long ago as 2003 -- which goes to show why Mr. Hadjis may be experiencing some skepticism, nay, even exasperation, over the possibility of battling Web hate by means of a dilatory, complaint-driven, quasi-judicial, often-Kafkaesque bureaucratic procedure.

Mr. Lemire is challenging section 13 of the Canadian Human Rights Act, which forbids hateful "telecommunication undertakings" as an unacceptable infringement on the Charter right to freedom of opinion and expression. The federal government contends that this issue was settled for all time with the 1990 Canada vs. Taylor case, in which the Supreme Court okayed a CHRT complaint against a telephone hotline run by a white-power group. Strictly on legal grounds, this position doesn't stand up to the briefest scrutiny. Taylor was heard at a time when no one yet foresaw the rise of a digital interactive medium with the scope and ubiquity of the Internet. Only in 2001 was the Human Rights Act changed so that the Internet is defined as a "telecommunication undertaking" under the meaning of s. 13. This post-Taylor amendment is itself perhaps a constitutionally challengeable law.

But more importantly, the test of s. 13's status as a "reasonable" infringement on free expression when it comes to telephone message machines needs to be performed anew with the Internet in mind. According to established constitutional law, the government must show that the section is rationally connected to its objective of protecting minorities, and that it does not have serious unintended chilling effects on expressive freedom. We can think of several examples plucked from this year's headlines that go straight to this question: Anyone who has followed the human rights industry's prosecution of Maclean's and Western Standard magazines cannot seriously contend that speech has not been chilled in this country by censorious bureaucrats armed with s. 13 (and its provincial equivalents).

It's unclear how s. 13 could be salvaged. On one hand, any limit to free expression that is likely to be ineffective or applied selectively, as the CHRT's Internet witch hunts arguably are, will not and should not survive Charter scrutiny. And, as Mr. Hadjis points out, the same is true of any statutory measure which leaves too large a "grey zone" for Internet commenters to fall into, or which imposes an unfair burden on Webmasters who must police long comment threads or large forums for anonymous hatred.

However offensive his views are to Canadians, Mr. Lemire is furthering the cause of free speech by challenging the application of Canada vs. Taylor to a modern communications landscape that bears scant resemblance to that of 18 years ago. It takes a truly Orwellian law to turn a man like Mr. Lemire into a free speech martyr. But s. 13 and those who administer it somehow have managed the task. We applaud Mr. Hadjis for recognizing that Mr. Lemire raises legitimate issues -- and we look forward to the day when this nation's highest court voices its agreement.