Wednesday, September 17, 2008

Media Reports on LEMIRE's Constitutional Challenge of Internet Censorship - Day TWO


Media Reports on LEMIRE's Constitutional Challenge of Internet Censorship



1: Globe and Mail: Hearing's decision could affect all media, lawyer argues

2: National Post: Canada's human rights act outlaws history, tribunal hears

3: AM770 (Calgary):  Mysterious Phenomenon Appears Before CRHT


Hearing's decision could affect all media, lawyer argues

Globe and Mail Update

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.”

Mr. Christie warned that an adverse decision will prove destructive not just to a sprinkling of characters on the “lunatic fringe,” but to a deluge of mainstream newspapers, magazines, and other institutions that have launched message boards and chat lines.

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

“We see this case as meaning either the beginning of the end of freedom in a very real way, or the end of the beginning of its preservation.”

Mr. Christie also disparaged the Canadian Human Rights Commission for the way it dismissed a recent complaint by Muslim groups against Macleans columnist Mark Steyn. The groups had used a controversial section of the Human Rights Act – s. 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 main steam media over the Steyn complaint.

“It had become a political hot potato,” said Mr. Christie.

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

In reality, he said, Mr. Steyn's writing crosses the line on virtually every yardstick the Commission and various tribunals has developed to measure unacceptable statements.

“You could hardly argue that Mark Steyn's article didn't meet the criteria, when it portrays Muslims as a menace to North America,” he said.

Mr. Christie accused the Commission of steadily throttling free speech, and said that every historical debate worth having – from the rightness of the Crusades to sacking of portions of Europe by Genghis Khan's Mongol hordes – runs the risk of offending particular races or religions.

“People with strong opinions seldom believe that they are extreme,” he said.

“What controversial statement isn't seen as vile by somebody?” said Mr. Christie, who has over the years defended a Who's Who of far right figures that includes James Keegstra, Ernest Zundel, Wolfgang Droege, John Ross Taylor and Tony McAleer. “Different religious groups are now aware that they can use this law for their own religious ends.

Mr. Christie said that the commission has crafted s.13 into an “absolute liability offence.” Simply by being associated with an offensive statement, he said, a defendant runs a strong risk of being found liable.

“It's so easy. It's a beautiful system for destroying your enemies... But the truth is more important than anyone's hurt feelings. The silence of speech is the death of reason.”

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

“This law is as dangerous to them as it is to the neo-Nazis,” he said.

A lawyer for Mr. Lemire, Barbara Kulaszka, told Mr. Hadjis that s. 13 complaints make up just one 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 which tie up those whose politics he dislikes in costly litigation.

Mr. Kulaszka said that Mr. Warman has targeted 26 individuals in his complaints. The second-most active complainant has only targeted four individuals, she said.

“He is overwhelmingly responsible for s.13 complaints,” she said.

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

“He seems to have had a tremendous influence on her,” Ms. Kulaszka said. “It's outrageous that the complainant here teaches her the very techniques she is going to use in his complaint.”

She complained that Mr. Warman didn't have to do anything more than register his complaint and testify at the hearing. “He gives his testimony and leaves,” she said. “But the defendant cannot leave if he wants to defend himself and, in the case of Mr. Lemire, have a website.”

Mr. Kulaszka also argued that the Commission failed to even make a case for Mr. Lemire being the operator of the website that contained the disputed comments.

“Without some corroborating evidence somewhere tying Mr. Lemire to this website, you should not find that he is liable under s. 13 of communicating any material,” she told Mr. Hadjis. He has no case to answer.”

She said that Mr. Lemire has always used his own name to post comments on other websites, and readily accepts his role in operating other sites that promote free expression and criticize policies such as immigration.







Canada's human rights act outlaws history, tribunal hears

Joseph Brean, National Post  Published: Tuesday, September 16, 2008


OAKVILLE, ONT. -- 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 Web 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 the 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 over 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, 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 that 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 CHRC 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 Wednesday, nearly five years after the complaint was initially filed.

National Post



Mysterious Phenomenon Appears Before CRHT


Something resembling common sense made a sudden and shocking appearance today before a Canadian Human Rights Tribunal hearing:


An adjudicator of a human rights hearing into an Internet hate case expressed serious misgivings Monday about whether a provision used to attack hate speech can continue to exist in the Internet age.

The Human Rights Act provision permits anyone who objects to even a borderline case of alleged hate speech to expose the author to a costly, cumbersome human rights adjudication process, said Athansios Hadjis - who is presiding over a Canadian Human Rights Tribunal against Internet webmaster Marc Lemire.

Citing a recent case in which Maclean's magazine columnist Mark Steyn defended himself against a complaint from a Muslim group, Mr. Hadjis said it may be all too easy for an individual to be “dragged through the process.”

Mr. Hadjis said that the controversial provision created to combat hate messages left on telephone machines operated by member of the far right - made sense in the past. However, he said that its usefulness may be in the past.

(Via BCF) Whether Section 13 ever made sense is debatable, but let's take these victories as they come. Perhaps this could mark a turning point in this debate - we'll have to wait and see. The hearing concludes tomorrow - more here.


UPDATE: This, on the other hand, is much less encouraging:


(Simon Fothergill, a lawyer for the Attorney-General of Canada) answered that if Section 13 puts a chill on public discourse, it is only to be around the fringes of hate speech, and that this is not "a terribly bad outcome."

"A little bit of chilling is tolerable" he said.