Friday, September 26, 2008

WESTERN STANDARD: HRCs: the unfair process is the punishment

HRCs: the unfair process is the punishment

http://westernstandard.ca/website/article.php?id=2871

The real punishment, when it comes to the Human Rights Commissions, is not the potential ruling that comes from the tribunals. The process itself is the real punishment.

Paul Tuns - September 25, 2008

Being hauled before a human rights commission is a serious ordeal. It is nearly impossible to defend oneself against a complaint because HRCs are not like real courts and the normal rules of evidence and the procedures that typically protect the rights of accused simply do not exist in these kangaroo courts.

The complainant has his costs picked up by the state, while the accused must pay for their own legal counsel. Hearsay evidence is permitted. Hearings can be held in secret. The accused usually do not face their accusers. Most importantly, the presumption of innocence so vital in our common law tradition is suspended as the accused must prove their innocence, rather than complainants or the state proving their guilt. If a complainant claims to be ‘offended‘, it is virtually impossible to prove that a person has not had his or her feelings hurt. The process can last years.

It is no wonder that Ottawa Citizen columnist David Warren famously noted that the process is the punishment.

Many defendants do not use legal counsel, defending themselves to avoid the enormous legal costs in a system that many consider rigged; defendants cannot even access legal aid. In a court of law, plaintiffs must pay for their own counsel and, if the case is found frivolous, can be forced to pay the legal costs of the defendants. This discourages frivolous lawsuits. Link Byfield, a senator-elect from Alberta, calls these human rights complaints ‘junk law’ and Ezra Levant, former publisher of the Western Standard, says the commissions end up hearing only those cases that real courts won’t.

It often seems that HRCs never consider a case frivolous -- so much so that the odds are stacked in the favour of the complainant. As Mark Steyn often says, the Canadian Human Rights Commission has a 100 per cent conviction rate for those charged under Section 13 of the Canadian Human Rights Act (which prohibits speech and activities that cause or are likely to cause hate). And if you are Steyn and Maclean’s, you can have a case dismissed and still be condemned for promoting hate. When Barbara Hall, the chair of the Ontario Human Rights Commission, dismissed the complaint against the magazine, she said that she would love to hear the complaint of several aggrieved Muslims against Maclean’s but that unfortunately the OHRC had no jurisdiction to do so. Still, without a hearing or cross-examination, she found Steyn and the editors guilty of Islamophobia.

As Gwen Landolt, national vice-president of REAL Women, has said, “If a complaint is laid against you, you’re automatically found guilty.” Yet, not once has an individual punished by these tribunals been found guilty in an actual court of law of an actual hate crime.

In the regular court system, the principle of double jeopardy applies -- that is, defendants can only be charged once -- the offended can “forum shop” among human rights commissions. If one jurisdiction rules against a claimant, he can pursue his case elsewhere. The complainants against Maclean’s filed in three separate jurisdictions. That’s three times the cost of defending themselves.

Furthermore, niceties such as facts and truth are irrelevant to human rights tribunals. Reporting facts such as statistics and anecdotes, studies and reports, or quotes is no defence if these facts cause offence. Yet, self-reporting of the highly subjective standard of hurt feelings is admissible -- indeed the basis of action.

Also, tribunals can require guilty individuals to pay large fines, apologize, change their behaviour, stop expressing certain views or undergo sensitivity training. As Tristan Emmanuel of the Equipping Christians for the Public Square Centre has said, not even murderers can be made to apologize to their victims (and victims’ families), but those found guilty of uttering words deemed offensive must apologize to the insulted and publicly prostrate themselves. One question: are such apologies even meaningful? It is one thing to be punished for holding certain views; it is another to have to admit you are wrong. What freedom is there in that?

With all this, the system seems to be rigged. Human rights codes limit who can make a complaint to those from “historically marginalized” groups, so if homosexuals or atheists do something to offend Christians, that’s too bad. It is so terribly one-sided that it effectively enforces a politically correct orthodoxy.

Human rights commissions are in the business of violating real human rights -- the right to freedom of expression, freedom of the press and freedom of religion -- to protect people from unpopular views and having their feelings hurt. You would think such a threat to liberty would raise more concern among those that purport to defend our freedom, whether they call themselves liberal or conservative. But you would be wrong.

-----------------------------

Paul Tuns is editor of The Interim, Canada’s life and family newspaper. Next week, Interim Publishing releases The Tyranny of Nice: How Canada crushes freedom in the name of human rights (and why it matters to Americans) by Kathy Shaidle and Peter Vere with an introduction by Mark Steyn.

 

 

 

 

PAYPAL: Donate now to help the Marc Lemire Constitutional Appeal

We desperately need your support to cover the legal bills and costs associated with this challenge of Internet Censorship

 

 

 

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

 

 

Stop Section 13 of the Canadian Human Rights Act

 

http://www.StopSection13.com

http://www.freedomsite.org

http://blog.freedomsite.org

http://canadianhumanrightscommission.blogspot.com

 

 

 

Saturday, September 20, 2008

FREE DOMINION: Was the Canadian Muslim community suckered by the CHRC?

http://www.freedominion.com.pa/phpBB2/viewtopic.php?t=104502

 

 

 

Was the Canadian Muslim community suckered by the CHRC?

 

 

A strange question to ask, perhaps? Maybe not if one considers Item 37, a letter dated July 2006, from the Harvey Goldberg, CHRC Senior Policy Advisor, addressed to the Canadian Arab Federation. We learn from Goldberg’s correspondence that he was drumming up business for the CHRC.

That letter standing alone, may be easily dismissed as a courtesy follow up of the CHRC “pursuing their mandate”, as we have heard so often. However R17 Tab4, which is a CHRC internal memorandum, that didn’t get shredded or totally redacted, suggests something a little more in depth. This memorandum from Harvey Goldberg to Ian Fine. Page 1 notes that the Muslim community is concerned that their complaints of Islamophobia would be viewed by the CHRC as not meeting the “threshold of hate”

I note that paragraph #2 & 3 on page 2 have been fully erased from the evidence, as well as paragraph 5 on page 3. Paragraph 6, however, does return to the fact that the CHRC is willing to provide representatives for the CAF consulting organization with respect to filings of these hate crimes. Trolling for business is not a new phenomena with the CHRC. We have seen them conduct more clandestine operations, many times in the past.

This year the public was awakened to the section 13 hate complaints via the Steyn/MacLeans issue. Finally a Muslim complaint was filed on the basis of Islamophobia. I suspect the fish was bigger than the CHRC wanted to swallow.

In the Lemire Constitutional Challenge of section 13, we learned from the CHRC lawyer, Margot Blight, that exaggerated hyperbole is no excuse, that the truth is no defence and that that intent is no defence. We learned that there is no free pass for anyone. We learned that liability is absolute. We also learned about the Hallmarks of Hate. These eleven hallmarks were adopted by the CHRC from their expert witness, Dr, Karen Mock. Much was made about the credentials of Dr. Mock by the commission.

We heard from the Attorney General’s representative, Simon Fothergill, that Freedom of Speech is indeed an American concept and that America is out of step with the world and that our current social science thinking is current and updated and that the CHRC’s “Chilling Effect” of freedom of speech is OK.

We further learned that the investigative report conducted by Sandy Kovak of the CHRC stated the Steyn/MacLeans case met the Hallmarks of Hate.

 

35. Based on the excerpts cited by the complainant, it appears that the article may bear some of the characteristics identified by the Tribunal in Kouba as being 'hallmarks' of material that is likely to expose persons to hatred or contempt. Muslims appear to be portrayed, for example, as a 'powerful menace' (in this case, a demographic menace), and us being dangerous or violent by nature.

 

------------------------------

 

Alternatively,

 

It is recommended, pursuant to paragraph 44(3)(a) of the Canadian Human Rights Act to request that the Chairperson of the Canadian Human Rights Tribunal institute an inquiry into the complaint if the Commission is of the view that:

 

*  the material does appear to meet some of the hallmarks of hate and is of such a nature that it may likely expose persons of the Muslim faith to hatred and contempt;

 

*  a decision by the Tribunal addressing the fact situation in this case may be in the public interest as it raises new considerations regarding the relationship between section 13 and the right of freedom of the press, an aspect of the Charter guarantee of freedom of expression.

 

CHRC Investigator’s Report

March 25, 2008

Investigator:  Sandy Kozak

 

 

This would seem to be the defacto threshold level the commission uses. As such, it met the threshold that the Canadian Muslim community was concerned about. Additionally we learned that the investigator’s report recommended that the Steyn/MacLeans case be prosecuted via a Tribunal hearing. For the public who was following the Steyn/Macleans saga, it is well known that prosecution did not follow. The claim was rejected at the Commissioners (political appointee) level in the CHRC.

Rejected or deemed too politically hot ? It met the Hallmarks. It met the threshold. The truth of the Steyn article is no defence. The intent of the Steyn article is no defence. There is absolute liability on MacLeans for producing the article. What was the reason ?

Did the Canadian Muslim community reach for too big of a fish on their first try? Were they expected to seek out basement Islamophobes pecking away on their parent’s computers and posting on obscure websites – seek those who could ill afford legal defence as has been the case with the overwhelming majority of section 13 cases so far ?


Why were they trolled for business? Was there an expectation that prosecution of a neo-nazi-like islamophobe who would be ill equipped to defend himself would lead credence to the CHRC mantra that this section 13 law protects all Canadians? With a 100% conviction rate, would that type of result been waved as a some sort of flag to fend off a constitutional challenge of the bias and abuse we have seen at the CHRC ? A proof, a case precedent, to illustrate that the law applies fairly to all Canadians?

Or was it because of who the Canadian Muslim community is? We were not told why a decision was made by the Commissioner to toss out the Muslim community’s complaint. Nor were we told how as to how this decision was arrived. We were told by the Attorney General that it depends on who says the truthful statement and that if one person says it, it is Ok, but if another says it, it is not OK. Are Steyn and MacLeans OK people ? Where is that list ? Who might have that list ?

The Attorney General went on and stated that unless someone can prove that decision was political, it wasn’t political. He went on to inform us that the investigator’s report on the Steyn/MacLeans case, read to the hearing, was poor quality evidence. He further informed us that it depends upon whether articles posted are speaking on behalf of Canadians or speaking on behalf of conservative organizations.

And we wonder why the Canadian Muslim community says there is an anti-Islamic bias in this country. Have we just treated the Canadian Muslim community as less than equal?


Fair question. Paul Fromm, on behalf of the Canadian Association for Free Expression noted in his submission to the Tribunal, that overwhelmingly, the respondents in section 13 cases were economically disadvantaged, lower educated and marginal white, right wing Christians. The statistics would seem to flush out this position as a truth. We have a selected group that fit that Attorney General definition of “conservative organization” who are unequally persecuted. It seems we now have a second group, the Canadian Muslim community, who is also treated as less than equal.

Club membership is growing.

 

 

 

 

 

 

 

Dismissal of Maclean's case wrong: Elmasry
http://www.nationalpost.com/news/story.html?id=808873

Joseph Brean, National Post
Published: Saturday, September 20, 2008

CHRC Submission; Comments rare departure from Muslim leader's silence on issue



Mohamed Elmasry, president of the Canadian Islamic Congress, writes that "the state should act to empower those who are disadvantaged by hate speech, and that may mean lowering the voices of some in order ...



Hate speech creates a "silencing dynamic" that excludes disadvantaged groups from civil participation, according to Mohamed Elmasry, national president of the Canadian Islamic Congress.

In a submission to Richard Moon, a University of Windsor law professor hired by the Canadian Human Rights Commission to review its online hate speech mandate, Prof. Elmasry writes that "the state should act to empower those who are disadvantaged by hate speech, and that may mean lowering the voices of some in order that others may be heard."

He called for mandatory press councils, and an end to "media monopoly," and said the CHRC was wrong to dismiss his recent complaint of Islamophobia in Maclean's magazine, which "aired its opinions to more than two million readers, but CHRC did not hold a hearing for Canadian Muslims and experts to voice their views."

His comments are a rare departure from the public silence the controversial Muslim leader has taken on an issue in which he is deeply invested.

Since initiating hate speech complaints last year against Maclean's in Ontario, British Columbia and federally, Prof. Elmasry has delegated spokesmanship to lawyer Faisal Joseph and a group of young articling lawyers. Only British Columbia heard the case, but has yet to rule.

The lawyers also prepared a brief for Prof. Moon, in response to questions he provided: what would be lost if the hate speech provision of the Human Rights Act, Section 13, were repealed; how might it be improved; should it require an intent to spread hate; and what other complaint mechanisms for hate speech might be enhanced.

Prof. Elmasry compared hate speech laws with speed limits as examples of "worthwhile" exercises of state power.

"The old idea that the state is an enemy of freedom should not be replaced with the idea that it can be a friend of freedom by not dealing with hate speech regulation," Prof. Elmasry writes.

"The current mantra that 'the remedy for hate speech is more and better speech' is in fact both false and misleading. The reality is that those who are expected to respond with 'more and better speech' cannot do so in today's public forum. Or if they do speak out, their words are often dismissed as lacking credibility."

The CIC legal brief argues that removal of Section 13 "would remove the only practical avenue available for addressing hateful and racist speech in the media."

It also blames "political pressure" for the CHRC's decision not to refer the federal Maclean's complaint to a tribunal, and cites this as a reason for the CHRC to emulate Ontario's newly revamped human rights legal system, in which access to a tribunal is much more direct.

The CIC dismisses the suggestion of an intent requirement for hate speech law, and says the complaint process does not put undue burden on respondents.

Complaints of hate speech, it argues, "by their very nature feature underprivileged complainants who in most cases have experienced an infringement of their human rights, pitted against well-re-sourced entities."

 

 

 

Friday, September 19, 2008

CHRC Wants to BAN Humour. Look Out the CHRC Joke Police are trolling for Jokes that are "Not Funny"

CHRC Wants to BAN Humour

Look Out the CHRC Joke Police are trolling for Jokes that are "Not Funny"

http://blog.freedomsite.org

Politeness.

Hockey fights.

Idiot strings.

Canadians have always been able to laugh - and make others laugh -- at themselves. If Hollywood is lousy with comic Canadians, that in itself has become a standing Canadian joke.

But seriously, don't you remember a lot more laughter when you were growing up? Aunties and uncles, neighbours, classmates . . when Canadians got together, they laughed uproariously at their own and other people's quirks and foibles. They skewered pomposity. They teased and played practical jokes on each other. They fired off low puns and high word play, reveled in silliness and really believed in fun. This was as true of Canadians in the trenches of Flanders as it was in Maple Leaf Gardens.

So what happened?

Margot Blight happened. Far from nurturing Canadians' natural talent for humour, the post-liberation 60s would rather creepily throw up an extra large crop of evangelicals, puritans, prudes, parsons, prisses, curtain twitchers, bossy boots, know alls, control freaks and censors. And their social justice or social hygiene movement does not differ substantively from any dating back to Cotton Mather. That's a tragedy for comedy because more than any other creative art, humour depends on spontaneity and the absolute confidence to blurt out your bon mot. And that's hard to do with a Temperance lecturer fingering an affidavit of injury at the back of every room.

At the Marc Lemire Canadian Human Rights Tribunal v. freedom of speech case, Commission lawyer Margot “Blight argued against a recommendation by Mr. Lemire that jokes and emotional expressions which are a spontaneous reaction to material already posted [on Internet message boards & blogs] should be exempted from prosecution as a human rights violation. 'The jokes for which the exemption is sought are not, in my submission, funny,' Ms. Blight said. 'There is no free pass for jokes, either.' Globe and Mail, Sept 15

If Canadians were meant to be laughing, the CBC would supply a laff-track? There's nothing very amusing about persecuting people for jokes they failed to run through politically correct software. Politically correct or not, real laugh out loud humour of any kind cannot survive without the oxygen of freedom.

- Come to think of it, when did you last laugh 'til you cried?

“Make an Ethnic JOKE will you….”

Free Speech Defence Team



Freedom of Speech Defence Team

Marc Lemire, (unnamed person), Barbara Kulaszka, Douglas Christie and Paul Fromm

Oakville, Ontario - Sept 17, 2008
Canadian "Human Rights" Hearing

Thursday, September 18, 2008

Interview with Marc Lemire: AM770 (Calgary) "The Marc Lemire Case - Why It Matters"

 

Listen to Rob Breakenridge interview Marc Lemire on his Constitutional Challenge.

 

 

 

 

 

 

 

 

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

 

 

 

The Marc Lemire Case - Why It Matters

 

 

Posted 9/17/2008 7:00:00 PM

 

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.

 

 

 

 

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

 

 

 

LEMIRE HEARING Day 3: AG admits Government Aim is Thought Control, and gives Hadjis a way out of ruling on Sec.13 Constitutionality

LEMIRE HEARING Day 3:  

AG admits Government Aim is Thought Control, and gives Hadjis a way out of ruling on case.  B’nai Brith:  Those who live in glass houses should not throw rocks

 

 

 

      "I'm Having to Defend the Telling of Jokes," Miss Kulaszka Explained


OAKVILLE. September 17, 2008. Barbara Kulaszka victim Marc Lemire's lawyer was up at the podium again today. She started off defending "jokes and trivia." The law shouldn't concern itself with 'trivia. This law has gone mad.

"Making motions to this Tribunal is like going to a feminist convention and recommending that women stay home and home school and cook meals for their children. I wouldn't want to go back to an era where I couldn't be a lawyer and, yet, women going to work has meant children raised on junk food and a growing problem of obesity."

Tribunal Member Hadjis argued that persistent off colour jokes in the workplace can be considered harassment. "But this isn't the workplace," Miss Kulaszka countered, "where you might have to put up with harassment day after day. Surfing the Internet and accessing a website where these jokes occur is voluntary."

The application of this law is "totally political," she charged. Harvey Goldberg, the head of the CHRC hate committee, "went to the Moslem community and urged them to lay complaints under Sec. 13. They said that the CHRC wouldn't accept complaints from them. Well, in the Maclean's case the CHRC didn't accept the Moslems case. They were right."

"There was no attempt to balance free speech with the application of this law," Miss Kulaszka stated.

Mr. Hadjis interrupted her to argue that Parliament had passed such laws to protect certain minorities.

"This is a political persecution," Miss Kulaszka charged.

"As to Mr. Warman's credibility, Mr. Warman denied posting his complaints on a website called Recommnet. Dean Steacy said in investigating a complaint against that website Mr. Warman admitted he had posted that material" Miss Kulaszka explained.

 

 

                            Fothergill Says Thought Control is the Gov't's Aim

"Hate has not changed with the new technology of the Internet. Events in Rwanda and Darfur have only reinforced the scourge of hate speech." Kurz argued that:.

"1. Hate speech remains harmful.
2. Canadian society must continue to strive to eliminate hate speech."

"Hate speech strikes at the very core of a person's identity and the trauma can last a lifetime," he stated referencing Dr. Karen Mock's report, but Mr. Hadjis corrected him saying that her report dealt mostly with assaults, not with postings on message boards.

"None of the shameful episodes in Canadian history, –  the refusal to admit Jewish refugees, the internment of the Japanese – were not caused by censorship but by vilification," Kurz insisted.

Mr. Kurz then turned to the hateful passages from B'nai Brith's own website. Mr. Hadjis pointed out that intent didn't matter.

One of the postings on the B’nai Brith “cooperative affiliation” sponsored, Nizkor Website read in part:

Fuck em. What have they done for the preservation and advancement

of the White race? They let the Jews crap all over our planet. They let

our schools be mongrelized with Niggers.

What have they passed on to us? Niggers dancing around on MTV with half

naked White women. A $5 trillion dollar debt. Public education is a joke.

A population that is over 30% non-White. Faggots infect our streets.

http://www.nizkor.org/ftp.cgi/people/m/ftp.py?people/m/metzger.tom/anon.1295

 


However, Mr. Kurz argued that the "effect" of the passage was all that mattered.

"The best way to deal with hate speech is before it becomes a cancer, using civil remedies like. Sec. 13 rather than the heavy hand of the Criminal Code," Kurz stated, not reminding Mr. Hadjis that the fines and gag orders of Sec. 13 require a far lower level of proof than the Criminal Code.

After lunch, Barbara Kulaszka presented her rebuttal. She criticized B'nai  Brith and Commission witness Karen Mock for their efforts to shut down debate. "She said she won't debate 'holocaust deniers or haters I urge you to look at the press editorials. The media is outraged by these attacks on freedom of speech."

During his rebuttal, Simon Fothergill, arguing for the constitutionality of the Internet censorship law, seemed to retract his earlier charge against the defence that it was abusing the process by trying to revisit previous legal decisions: "Of course, things have changed because of the Internet."

"Both Mr. Christie and Mr. Fromm took great exception to my comment about the Internet being used to organize and reinforce like minded opinions. We are concerned about permitting certain prejudicial attitudes to develop unchecked. That part of the conclusion is not determined by the Internet and should be treated as settled," he argued.

"In terms of remedy, you are certainly entitled to consider the remedial nature and it would be a legal error  to impose a penalty for a punitive purpose," Mr. Fothergill added.

Citing press briefing papers when penalties were added to the Act in 1998, Mr. Fothergill spoke of the fines as "deterrents" to people using telephone answering machines and the Internet to expose privileged groups to "hatred" or "contempt."

Mr. Fothergill urged the Tribunal not to consider media commentaries as uninformed and reflecting a bias, rather than, "as Miss Kulaszka said, the opinions of Canadians.' I urge you to ignore the media commentaries that are filed as they are inherently unreliable."

"The Commission plays a major role in filtering out complaints and seeing that an inadvertent slip on a message board, if measures are taken, may not lead to a Tribunal," Mr. Fothergill said by way of reassurance.

Even Tribunal decisions may contain hateful statements, Mr. Fothergill admitted, but "context is everything." Thus, presumably if B'nai Brith or the government posts hateful comments it's alright; if a website with the wrong ideology says the same things, it's off to Tribunals, gag orders, fines and maybe even prison for them.

Mr. Fothergill, recounting the numerous Commission abuses of Mr. Lemire's rights, including the non attendance of Mr. Warman even for the final submissions, said Mr. Lemire should have sought judicial review, but, he added, "that if you feel the administration of justice would be brought into disrepute by these acts, you can dismiss the complaint, as Mr. Fromm, advocated, on those grounds."

"If you consider these abuses that Mr. Lemire complains of – and I take no position on them – they are administrative and you can dismiss the complaint or stay the proceedings, rather than invalidate the legislation and the will of Parliament."

Margot Blight then took over on behalf of the Commission. "It is submitted that the Commission uses common sense and the history of Sec. 13 referrals confirms that. If there is no need for a remedy, there is no need for the Tribunal to refer a case. It makes no sense to think the Commission would refer to a Tribunal a website that was being run properly."

"When the Commission discovered very late in the day that the message board had been taken down in the Ouwendyk complaint, the Commission, withdrew its participation. It is the position that this law captures only the most extreme forms of speech.

Barbara Kulaszka offered a brief rebuttal to Ms Blight's hour long response. She said when she sought a settlement, Mr. Warman summarily turned Mr. Lemire down stating that he "had dirty hands."

"What a WHOIS search means we explained through our expert Mr. Klatt. The Commission called no rebuttal evidence," she stated.

"I was astounded to hear Mr. Fothergill give you a way out, if you find this an abuse of protest, to dismiss this complaint without striking down the legislation," she added.

"Our charts demonstrate that this Section is not being used in a remedial fashion. We rely on Tremaine and Lampman where letters of apology don't work. Mr. Warman even posted Miss Lampman's letter on one of those websites he calls 'neo-Nazi.' With respect to Mr. Vigna, I stand by my submissions. Mr. Steacy made it very clear Mr. Warman and Mr. Vigna knew who Jadewarr was," she recalled."The Commission's 'gatekeeper' function is only to stop complaints against their friends, stakeholders or powerful people like Maclean's," she stated in her quiet forceful way.

"Thank you all, it's been a long ride. I'm very overloaded. So, don't expect anything soon," Member Hadjis said in adjourning the hearing.

 

-----------------------------------------------------------

PAYPAL: Donate now to help the Marc Lemire Constitutional Appeal

We desperately need your support to cover the legal bills and costs associated with this challenge of Internet Censorship

 

 

 

 

 

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.


---------------

 

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.