Wednesday, September 17, 2008

LEMIRE Hearing Day Two - Wrap Up

LEMIRE Hearing Day Two – Wrap Up

 

 

    “Warman Corrupted the Investigative Process,” Barbara Kulaszka Charges

 

OAKVILLE, September 16, 2008. The case for the defence in the Marc Lemire Internet case opened this morning.

 

            A website named JRBooksonline has been laid at Marc Lemire’s doorstep. The prosecution alleges he owns or controls it. Mr. Lemire helped a U.S. citizen register this revisionist book seller outlet in 2000. “There is no prima facie evidence that Mr. Lemire ever owned or controlled this site,” Miss Kulaszka argued.

 

            “Marc Lemire has a persona on his website. He uses his real name and photograph there and on STORMFRONT.. He uses his real name and a real e-mail address. However owns JRBooksonline does not do so. It is a different website in its look and feel and from a techie point of view it’s very primitive in comparison to the Freedomsite, as expert witness Bernard Klatt testified. It’s an old fashioned site offering historical books, like The International Jew, while the Freedomsite is a young person’s site in looks and it’s content is current,” Miss Kulaszka argued.

 

            “Mr. Klatt testified that all a ‘Whois’ search proves is that a domain name is or is not available. There’s a disclaimer on a Whois search that they can’t guarantee the accuracy of the results. You can put any name in to register a domain.

 

            When informed of the registration of JRBooksonline, Mr. Lemire informed the Commission that he had complained to ICANN, the organization that deals with registration complaints in Canada. When Hannya Risk, who was the investigator, should have gone to ICANN and seen that the registration had changed and been corrected.

 

            “The complainant had notice as of June, 2005 that the registration of JRBooksonline had changed and Marc Lemire was no longer registered as the owner,” Miss Kulaszka explained.

 

            “If this is remedial legislation, why would you drag a respondent through five years of proceedings, if he denies ownership and still not contact ICANN to find out why and how the registration had changed?” Miss Kulaszka argued.

 

            “Investigator Hannya Risk was asked by Mr. Warman not to mention her search into JRBooksonline to Mr. Lemire as Mr. Warman was going to complain about JRBooksonline to the police. Warman did complain to the Police, who never even contacted Marc Lemire at all. Hannya Risk later said she regretted this. Mr. Warman trained Hannya Risk. She testified that was not his job and Harvey Goldberg and Dean Steacy said they were very surprised at this. Mr. Warman trained Ms Risk in the investigative techniques she was to use. He has entirely corrupted the process,” Miss Kulaszka charged.

 

            Ms Kulaszka said in no other case was ownership attributed to a respondent solely on the basis of a WHOIS search. Referring to a dramatic moment in the hearings, Miss Kulaszka referred to a WHOIS search alleging Mr. Warman was the owner and technical contact for a website called “Ihatethehaters.com.’ The address was obviously phoney and inaccurate as was a registration for ‘warmanbooksonline.com’ Mr. Warman couldn’t explain how this could have happened. He does not understand how a WHOIS search works.”

 

            “It is very important for this Tribunal to find that a WHOIS search proves nothing more than that he domain name is taken and they provide no guarantees as to the accuracy of the registration information,” she argued.

 

            “Without further corroborative evidence tying Mr. Lemire to this website you should not find him responsible for communicating anything on it. No prima facie case has been made and, therefore, he has no case to answer,” Miss Kulaszka submitted.

 

            The immigrant poem (an old water cooler poem that is at least 20 yeas old)  was downloaded by Mr. Warman on the same day it was posted, she explained. “Ms Risk testified Mr. Warman first told her of the immigrant poem in a letter in June, 2004. In January, 2004, before he even knows of Mr. Warman’s complaint, Mr. Lemire had removed the message board. Ms Risk in February, 2004 tries to access it and cannot. This was not disclosed to Mr. Lemire until Ms Risk testified in May, 2007. The Commission must now have been in a panic. Mr. Warman prints of the immigrant poem in February, 2004, but does not show it to Ms Risk until June, 2004, but Mr. Lemire is not informed of this further allegation, and only finds out in June, 2005. He is never given a chance to respond. Ms Risk testified she went on to STORMFRONT but could not find the poem. I asked her why she had included the poem in the report and she said: ‘To show what Mr. Warman had given me.’”

 

            “This shows what seems to be the undue influence Mr. Warman had over Ms Risk,” Miss Kulaszka charged. “Mr. Klatt did a diligent search of STORMFRONT’s data base and could not find the poem. There is no proof the poem was ever there. Mr. Warman’s credibility is sadly lacking.”

 

            “I asked Mr. Warman why he used the cloak and he said he couldn’t remember. Even the url doesn’t show it comes from STORMFRONT. My submission is that you should not find that this poem was ever posted by Mr, Lemire,” Ms Kulazska submitted.

 

            “Taylor requires not just one message but a series of messages. They were concerned not with how many people were accessing the messages but that there was a series of such messages. This showed intent,” Miss Kulaszka argued.

 

            “Mr. Klatt testified that he’d done a web search of ‘The Immigrant Poem’ and found it on such mainstream websites as ‘Discover Vancouver’, Free Dominion and Country Living. Ordinary Canadians find it a humorous poem. Immigration policy is set by the government of Canada and is subject to criticism,’ she explained.

 

            Evidence shows that, at the time in question, Mr. Lemire had 409 postings on STORMFRONT, Yet, Mr. Warman could only find one that allegedly comes under Sec. 13 and it’s a poem that you can find all over the Internet.  According to a decision in the Guille complaint,  Mr. Warman’s multiple messages on STORMFRONT and VNN were found to constitute ‘hate messaging’ within the Act, but the complaint was dismissed as vexatious,” she argued.

 

            “I’m asking that, in regards to this poem, that his complaint be dismissed. It has not been proven on a balance of probabilities that it was posted by Mr. Lemire. It doesn’t meet the test of set out by the Supreme Court.”

 


 

AFTER MORNING BREAK

 

 

            At the beginning of this case, said Miss Kulaszka, “The Commission said this entire website was the subject of this complaint, including many articles by Matt Lauder, Mr. Warman’s friend. Then, this was amended. When I asked him why he didn’t complain to Mr. Lemire, he said, in effect,  Lemire must be made to pay for his actions. If he complained, he just might take the posts down. In his speech to the ARA, Richard Warman spoke of his tactics of ‘maximum disruption.’. There’s plenty of evidence from Jurgen Neuman and even Dr. Mock that the ARA was a violent band of thugs. Warman admits he then made a complaint to the police and, then, if they raid the victim, he loses his computer and is banned from the Internet. This makes doing research and communicating by the victim with his lawyer very difficult,” she added.

 

            “Sec. 13 is made for inflicting maximum disruption on victims and is an abuse of process,” Miss Kulaszka charged. “It is an abuse for a respondent. It is not tied to real harm. Everything else in this Act is tied to real harm – someone has been denied employment or a service. Under Sec. 13 ‘anyone can file a complaint’. Mr. Warman doesn’t claim to be a member of any of the protected groups.”

 

            “Under Sec. 13, there is no limit to the number of complaints a person can file,” she continued. Mr. Warman is a serial complainant who has, by last count, filed 26 separate complaints.

 

            “If, after the complaint is filed, the respondent makes any disparaging remarks about the complainant, he can face heavy retaliation fines,” Miss Kulaszka explained. “ Mr. Kyburz tried to get Mr. Warman fired and for that faced a heavy fine.  However, the complainant Mr. Warman can file a complaint against a respondent and cost him his job, as he did in the Terry Tremaine case. If you try to intimidate a complainant or witness, you face a ‘retaliation’ complaint, but Mr. Fromm has been attacked by the ARA who picketed outside his home, leafletted his neighbourhood and  threatened to ‘burn him out’ and later broke up a fundraising meeting for Marc Lemire.”

 

            Soon after the complaint was filed, Mr. Warman, using one of his pseudonym ‘Pogue Mahone’, asked Marc Lemire on STORMFRONT “who the hell is Richard Warman?” Had Lemire replied, he might have faced a retaliation complaint as well. This is a case of ‘testing the virtue of a person,’” she explained.

 

            Mr. Steacy had signed up on the Freedomsite and this was not revealed to Mr. Lemire in any disclosure.

 

            At the hearing in Ottawa, Ms Blight made an admission that previously the Commission had not disclosed pseudononymous communications between the Commission and respondents.

 

            “At the Beaumont hearing,” Miss Kulaszka explained, “a document was submitted from Stormfront that said, ’Welcome Jadewarr.’ Mr. Warman denied knowing who Jadewarr was. Mr. Steacy testified, ‘Mr. Warman and Mr. Vigna came over to my office to run off a poem. They were present when I signed onto STORMFRONT as Jadewarr.’”

 

            “I asked if Mr. Warman knew who Jadewarr was before the Beaumont case,” Miss Kulaszka continued, “and Mr. Steacy said: ‘Yes, he did.’”

 

 

AFTERNOON SESSION

 

            Just after 1:00, Douglas Christie, the Battling Barrister, took the podium for his long awaited summation. “This is a most important decision. It will determine who controls the media in Canada.”

 

            “I have been the counsel for John Ross Taylor, Ernst Zundel and James Keegstra and I have argued that hate is very hard to define. We see this case as meaning either the beginning of the end of freedom in a real way or the end of the beginning of the reclamation of freedom in this country,” he stated.

 

            “I want to point of the effects of this legislation beyond the particular effects of Marc Lemire’s case,” Mr. Christie explained. “The effect of this legislation is to create a political elite who alone can communicate their views. There is nothing new about this. Sec. 13.1 has created a bureaucracy that has told us many times here: ‘You don’t get a free pass,’ and we’ve heard it hear,” Mr. Christie explained.

 

            “I warned, in Keegstra, that these hate laws were a slippery slope and Sec. 13 makes that slope steeper and more slippery,” the Victoria-based lawyer added.

 

            “Let’s take historical debate. This is an Act that will eventually silence historical debate. The Crusades were a religious conflict. If you take the position that the Crusades were justified because of the persecution of pilgrims, you could be seen to be exposing Moslems to hatred or contempt,” Mr. Christie elaborated.  “You could say one side or another was right and you’d be advocating intolerance. Genghis Khan was a brutal man who invaded Europe and killed many people. He happened to be a Mongol. How could you discuss this without exposing Mongols to hatred or contempt?”  Mr. Christie asked.

 

            “As there is no good faith religious exception for religious belief in Sec. 13, this Section effectively outlaws intolerant religious expressions and is, therefore, intolerant. All religion is intolerant and, therefore, this Sec. 13 is excessive.”

 

            “What was the greatest terrorist act in Canadian history?” Mr. Christie asked. “ The Air India bombing. The likely suspects were Sikhs; the only one convicted was a Sikh; the two charged and acquitted and their supporters who filled the court were Sikhs.          To even report this on the Internet might be to expose Sikhs as dangerous people to hatred or contempt, even though it would all be true.”

 

            “The dismissal of the Moslem complaint against Maclean’s was political in nature,” Mr. Christie argued. “The notion that you should punish a person more severely for not expressing remorse ignores the importance of truth. If a person believes what he says is true, why should he apologize?” Mr,. Christie demanded.

 

            “Website chat rooms can be seeded with inflammatory comments. You couldn’t do that in Taylor with his telephone answering machine. No chance of a poster putting up a post and it’s photographed, even if there is an apology or a rebuttal doing that with the old telephone answering machine. “

 

            ”I thought hearing both sides or many sides was one of the indicia of a democratic society,” Mr. Christie stated. “What Miss Blight has demonstrated is an absolute liability offence. For the possession of a lethal drug, we require knowledge, intent and consent. My learned friend said it doesn’t matter whether you know about the post, or consent or intended for it to be there, if you own the site, you’re guilty. Criminal offences are not constitutionally protected acts, but freedom of expression is a constitutionally protected act.

 

            We’re talking of imposed silence and when we have silence, we have the death of reason. What happens when I cannot tell you what I honestly believe lest I offend someone.    

 

            “Really Canada is seeking to impose our legal standards on other countries, seeking to prosecute Canadians for posting in other countries. It’s extraterritoriality. It is terribly disturbing for those of us who like to see Canada as a democracy. We place ourselves alongside China in repressing foreign dissent. Some American scholars are questioning whether to attend conferences in Canada for fear some of the views they might wish to express may be contrary to Canadian law,” Mr. Christie charged.

 

            “Expression will be subject to one’s political enemies who can make complaints” and waste your resources, Mr. Christie explained. “There’s no constitutional right to commit a crime, but there is a constitutional right to freedom of speech. Message boards and spontaneous public debate and discussion will become a thing of the past.

 

            “Special interest groups are not the stakeholders of freedom of speech. The Canadian public are the stakeholders,” Mr. Christie added.

 

            “It’s no defence to a constitutional breech to say you might be acquitted,” Mr. Christie responded to a query from Mr. Hadjis.

 

            “What is done by the ‘Hallmarks of Hate’ is to provide you with a moveable goal post into which you can fit anyone you want to prosecute and exclude anyone you don’t want to prosecute.”

 

            “It’s the old slogan, ’Nazis and fascists have no right to speak or organize.’ We defame them, we isolate them and then we criminalize and silence them. We don’t do that to communists, but we’ll to it to Nazis. This demonstrates it’s strictly political. It’s not what you say; it’s who you are that counts. The law is expansive and vague,” Doug Christie charged in a rapid fire of body slams to the Commission’s arguments.

 

            “We’re here because this legislation is no joke. It has created a monstrous threat to freedom of  speech. The passage of time has changed the nature of the communication, increased its volume, made it rebuttable from the time of Taylor. If Sec. 13 had attacked the activities of drug user, lawyers would be lined up for their defence of narcotics users, but as it attacks free speech, there are few to defend it. Apparently, drug users are more popular than free speech,” Mr. Christie argued.

 

            “Hatred and contempt without reference to truth – which is not a Sec. 13 defence – is an invitation to hypocrisy,” Mr. Christie explained. “If this was a fair adjudicative process, the motives and credibility of the complainant would be an issue,” he added.

 

            “I suggest to you that George Orwell provided a term –  ‘doublespeak’ – to characterize Mr. Fothergill’s comments.

 

            “The enemies of free speech don’t want to debate their opponents; they want to silence them. I don’t hesitate to say hate is right in some cases; hate for evil and hate where the lives of innocent people are at stake. We’re not allowed to argue the truth of what we say that might prove the validity of strong opinions,” Mr Christie explained.

 

            “Another justification is to upset a particular political community. It is the ‘context of your mind’ that causes the breech. That should frighten and wake people up. These people are arguing with the force of the state behind them. Supposed ‘hate speech’ can only have any effect on those who seek it out and find it accords with their own experience. Their opinion will not be indoctrinated as long as they have the ability to go to other websites,” Mr. Christie argued.

 

            “The Commission wants a cease and desist order against Marc Lemire for a website he neither owns nor controls. This legislation allows this absurdity,” Mr. Christie charged.

 

            “Apparently, to have an honest opinion that people don’t like is to violate the law. It is implicit that truth is no defence, honest belief is no defence, intent is no defence,” he said.

 

            “If we keep this legislation, we will undermine democracy and promote hypocrisy,” Mr Christie concluded his historic address.

 

 

 

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