Tuesday, September 16, 2008

*** LEMIRE Hearing: Day One Wrap-Up

LEMIRE Hearing:  Day One Wrap-Up




Compiled from the LIVE Blog of the Lemire hearing posted at http://blog.freedomsite.org



“No Free Pass for Jokes,” Internet Censors’ Spokesman Insists


OAKVILLE. (September 15, 2008) The Canadian Human Rights Tribunal, adept at gagging and fining Canadians, had trouble getting the hearing room set up on time. This morning’s hearing started 15 minutes late and kicked off a three day hearing to hear final submissions in the Marc Lemire Internet case. Last minute labours produced the loud farting sound of duct tape being unwound to secure wires to the carpet.


The elaborate phalanx of taxpayer-hired security guards to protect Richard Warman and Commission counsel was nowhere to be seen. Perhaps, the dire threat to their lives had vanished like an Autumn mist in the September warm sun. Perhaps, the fact that the Complainant was a no show today meant that the risks had disappeared. Perhaps, the Prozac of common sense had calmed the “security” hysteria which had reduced another Commission counsel to near tears telling people how dangerous human rights work is; that is, trying to strip Canadians of their right to express their views freely on the Internet.

A large crowd of supporters filled the hearing room. People had come from as far as British Columbia, Germany and Halifax to support free speech. Also present

Two active bloggers from freedominion.ca, a conservative website now being sued for slander by the absent complainant Richard Warman, are actively reporting the proceedings.


The press was represented by Kirk Makin of the Globe and Mail who has covered many previous free speech hearings.  As well as the National Post and someone from the Hamilton Spectator.


“If a message board owner cannot run the message board in a manner that complies with Canadian law, then they should not be running the message board,” Margot Blight for the Commission stated.


Member Hadjis queried the responsibility of message board owners. In this case, all but one of the postings complained of by Richard Warman were posted by persons other than Mr. Lemire. How could a message board operator be held liable. Hadjis mused about the problems faced by message board operators like the CBC of monitoring a message board. Hadjis himself referred to previous evidence of Commission employees or complainants like Richard Warman acting as agents provocateurs on Internet message boards.


Speaking on behalf of the Commission and acting as prosecutor, Toronto lawyer Margot Blight stated that there is a high threshhold for language to breach Sec. 13: that is, to communications that are “likely to expose” privileged minorities to “hatred or contempt.” In fact, as the defence and pro free speech intervener will argue that virtually any criticism of a privileged minority may be seen as possibly holding them up to contempt, if not hatred.


“There is no free pass for a message board owner and operator. Its content must comply with Canadian law,” said Miss Blight.


Miss Blight defended CHRC agent Dean Steacy and his use of fake online pseudonyms.– and she kept stumbling over the pronunciation of this word – “pseudononymous” postings in his investigation. “ How else might he lean who is behind a posting?” she asked. Yet, in the Lemire case, Steacy tried to engage him in conversation to attempt to show Lemire was vexatious, although there was never any question that he was the owner of the Freedomsite (and a picture of him appears on every page of the site, along with his address)


Miss Blight asked the Tribunal to disregard the testimony of Mr. Monfet of Bell Canada. He testified that the “jadewarr” posting by Dean Steacy was done, not through the Commission’s Internet access, but through the unsecured wireless connection of one Nellie Hechmie whose condominium was located about a block away from the Commission’s Ottawa offices.


“The Tribunal does not have the power to create an exception for jokes,” as proposed by the defendant, Miss Blight argued. “The Commission’s position is that there is no free pass for jokes either,” she added.


Hadjis challenged Miss Blight’s denunciation of an article on the freedomsite on homosexuality and the AIDS epidemic. Mr. Lemire’s response was that the statistics showed higher Black and homosexuals had higher AIDS rates. “But does this cross the Taylor threshold?” he asked. “People get their facts wrong all the time,” he added.

“It’s further submitted that there is no free pass for historical materials, just because they were written several or many years ago. In fact, the Bahr case, the Tribunal considered The International Jew and found that it violated Sec. 13. Historical texts can violate Sec. 13,” she said.



CHRC: "Warman's Rights have Been Violated" We want $6,000!


Reeling under 10 months of media attacks on the Canadian human rights industry’s attacks on freedom of speech, Miss Blight insisted: “There have been comments that the Canadian Human Rights Commission and the Tribunal do not respect freedom of speech. That is not true.” She, then, referred to a September 12 decision by Federal Court rejecting a motion by Terry Tremaine for a stay of the judgment against him under Sec. 13: “The Tribunal noted the extreme and violent nature of the postings and concluded that it would offer readers reason to hate and be suspicious of minorities. It must also be noted that the Tribunal was careful to balance Mr. Tremaine’s freedom of expression right with the equality rights of all individuals in reaching this decision.” Apparently, according to the learned judge, the Tribunal took Mr. Tremaine’s freedom of expression into account and then squelched Mr. Tremaine’s liberty in order to maintain the immunity to criticism of Canada’s privileged minority groups.


Despite it’s 100 per cent conviction rate, Miss Blight said: ‘It is simply not true that the Tribunal is not concerned about freedom of expression.”


“The Commission is submitting that Mr. Warman’s rights have been violated and that the respondent be enjoined with a cease and desist order and that a fine be imposed as in Beck ($6,000),” Miss Blight demanded.


Paul Fromm couldn’t understand how the absent chronic complainer’s rights could possibly have been violated. So, Fromm asked Miss Blight and she confirmed that is what she had said. From this observer’s standpoint, the only person whose rights have been violated in these proceedings are those of the respondent/victim Marc Lemire.


At noon, the prosecution’s case was taken over by Simon Fothergill on behalf of the intervener the Attorney General of Canada. One of his final acts, as Attorney General, before handing over power to the Conservatives who won the 2006 election was for former Canadian Jewish Congress head Irwin Cotler to have his department intervene in Marc Lemire’s case in order to uphold the constitutionality of Canada’s Internet censorship law, Sec. 13 of the Canadian Human Rights Act.


Interestingly, the Harper Conservatives have continued to intervene on the side of thought control and repression, despite the fact that many Conservative backbenchers are troubled by the far reaching Internet censorship powers of the Canadian Human Rights Act.


Apparently backtracking in the face of extensive evidence of the Commission’s police state investigative procedures, including the assumption of false identities by Commission investigators trolling dissident website, Mr. Fothergill argued that even if their were evidence of investigative wrongdoing, such evidence would not invalidate the law.



Attorney Generals Submissions... I need coffee to stay awake!


           “It’s true that, in this case, conciliation attempts were turned down by the complainant,” Mr. Fothergill acknowledged.


            “One of the central tenets of Mr. Lemire’s position is that the Taylor decision is based on social science that is 40 years out of date, but it’s based on many other reports as well,” he added. However, he did acknowledge that the social science may be 20 years out of date.


            “If speech gets chilled around the edges of ‘hate speech,’ I would argue is tolerable. I have to tell you quite frankly that is possible,” Mr. Fothergill stated.


            Member Hadjis added: “Considering the events of the past year, isn’t there the risk that people who utter something close to the line can be dragged through the process.”


            Fothergill said that, in a case like that, conciliation could mitigate the process.


            Hadjis shot back: “But in this case, this didn’t happen,. The complainant (Warman) turned down conciliation. And the respondent does not know of deficiencies in the investigative process until he’s well into the process.”


            “It’s very difficult to construct an entirely truthful statement that constitutes hate,” Fothergill stated, “but there might be a context.”


            “Truth is not a defence and intent is not a defence, but they are irrelevant to the effects and effects are what matters in human rights legislation,” he added.


            Hadjis asked: “So, I’m to judge a truthful statement on the basis of who made it” to decide whether it’s likely to expose someone to hatred or contempt..


            “If you look at Sec. 13 Tribunal decisions, there is a scrupulous effort to ensure that the statements are extreme,” Fothergill argued, despite a 30 year 100 per cent conviction rate in Sec. 13 cases.


            The lawyer for the Attorney General’s department spoke at length about the 1990 Supreme Court ruling upholding Sec. 13 as a “reasonable” infringement on free speech in the John Ross Taylor case.


            This Tribunal should look with some skepticism at this constitutional challenge as it involves the same parties as in the Zundel case. There’s Mr. Christie and Miss Kulaszka (for the defence) and Mr. Fromm intervening for the Canadian Association for Free Expression,” Fothergill said in a fierce smear attack on the defence team.


            “This is relitigation of matters already settled in Citron v. Zundel,” Fothergill charged, apparently forgetting that no expert witnesses were led in that case that undermined the psychological arguments used to justify restrictions on freedom of speech.


            Charging that the defence team is involved in “an abuse of process,” Mr. Fothergill insisted that Mr. Lemire, Mr, Christie and Mr. Fromm “are closely involved. ... In the course of his multiple appearances before the Tribunal, Mr. Fromm, who is not a lawyer, has put forward arguments on free speech and the public versus private sphere in Warman v Tremaine. These arguments are also being raised in the current case. ... The repetition of the same rejected arguments about the same legislative provision results in much public expenditure in relation to an issue that has previously been adjudicated by the Courts and the Tribunal,” continued. Yet, one Tribunal’s decision is not binding on another Tribunal.


            “The reasoned apprehension of harm on the part of Parliament” is the test for be met to justify restrictions on free speech, the government’s lawyer Simon Fothergill argued.



FOTHERGILL: "Commission counsel must be even handed" (haha and pigs can fly)


Mr. Fothergill then reviewed extensively the testimony of Karen Mock about the purported effects of “hate speech.” He repeated her charge that the Internet was the medium of choice for “hate” groups. Fothergill repeated Mock’s assertion that she had “witnessed children of Holocaust survivors being driven to tears and actually shaking when reading material denying the Holocaust.”


            The Internet allows “hate” groups to coalesce and reinforce each others beliefs,” he stated, apparently targeting non-violent political organizing by dissidents.


            Mr. Fothergill insisted that there was a “long term erosion” of civility as a result of “hate speech.” He was relying on Dr. Alexander Thesis’ testimony on “destructive social movements” like German anti-Semitism and slavery in the U.S. “Hate speech was necessary to maintain the view that these groups were less deserving of rights and protection,” in Dr. Thesis’s views.


            He continued to argue that “hate speech” could lead to discrimination in employment for those who dress differently, although none of the recent parade of victims of Sec. 13 are employers of any sort.


            “There are excerpts from the Bible that can expose people to hatred or contempt and the Tribunal has dealt with that,” Mr. Fothergill stated, apparently defending Tribunal Vice Chairman Hadjis’s ruling in the Warman v. Jessica Beaumont case where she was condemned for citing two passages from Leviticus in support of her critique of same sex marriage.


            “Commission counsel must be even handed,” Mr. Fothergill stated, despite the fact that most victims have been unrepresented by counsel and the Commission has vigorously opposed efforts by Paul Fromm in Warman v Glen Bahr and Western Canada for Us to get the Commission, following the Supreme Court’s decision in R v Okanagan Band, to provide legal aid to an impecunious respondent where the potential loss of their rights is at issue.


            “We have a lot of legal safeguards,” Mr. Fothergill insisted, under the Canadian Human Rights Act, although poor victims have no right to legal aid.


            Mr. Hadjis interrupted, quoting Mr. Warman’s evidence “even if you apologize and mend your conduct, you do not get a free pass.,” to ask whether Sec. 54 (fines) “imposed by recent Tribunals even when the postings are down, are a punishment, are they not? It’s punishment, isn’t it?”


            Mr. Fothergill said penalties are reserved for “most hardcore people unwilling to change their ways.”


            “That’s not been our criteria,”   Mr. Hadjis argued.


            “These proceedings may be burdensome but they’re not criminal,” Mr. Fothergill retorted.


            “What’s key to the Taylor proportionality test is that Sec. 13 is a ‘remedial legislation.’ That’s the spirit of what Taylor talks about. But we've had played out since that Taylor, is that penalties have been asked for and have been awarded, except in one case [Richard Warman v Eldon Warman], where the member himself questioned the fine and the Commission withdrew its request,” Mr. Hadjis argued. In that case, the Member wondered how he could impose a heavy fine when a criminal court had imposed only a $1,000 fine on Chief David Ahenakew in a Sec. 319 Criminal Code prosecution.


            “And,” he continued, “in Taylor, Mr. Justice Dickson said, ‘don’t worry, Sec. 13.1 is just remedial and conciliatory,’ and, yet, all we have in these cases are calls for fines and they are awarded, ‘on the balance of probabilities?’”


            “But the process offers many less drastic forms of redress,” answered Mr. Fothergill.


            “Yet, in this case, the respondent sent a letter offering to take down all the offending posts, but the complainant refuses to accept it. In this case, although all the posts are down, the Commission still wants a fine or penalty of $6,000,” Mr. Hadjis pursued his point..


            “Human rights legislation is essentially civil and does not engage Charter rights,” Mr. Fothergill said, citing the Blencoe case in British Columbia, where an NDP MLA “lost his job, lost his livelihood and lost his mental health” because of a false provincial human rights complaint citing sexual harassment and, yet, the Courts found that this process had not violated his Charter rights.





View the Live Blog of the Hearing at:   http://blog.freedomsite.org





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