Friday, April 3, 2009

DOUGLAS CHRISTIE: 2(b) or not to be?

Douglas Christie: 2(b) or not to be?

Douglas Christie, Canada’s “Battling Barrister” Challenging Sec. 13 of the CHR Act

2(b) or not to be? B’nai Brith’s Challenge to Canada’s Charter of Rights and Freedoms

By Arthur Topham
April 1, 2009

In 1982, following passing by the British Parliament, Canada’s Constitution Act, 1982 became the official law of the land.

PART I of the Act became known as the Canadian Charter of Rights and Freedoms. Its stated purpose was to ensure protection for all Canadians of certain basic rights and freedoms deemed necessary and essential to maintain our free and democratic society.

Section 1 of the Act was the Guarantee of our Rights and Freedoms and Section 2 was the list of our Fundamental Freedoms.

Section 2 states: Everybody has the following fundamental freedoms (as outlined in four sub-sections known as a, b, c and d).

Section 2(b) reads:

“Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;”

Twenty three years later, on November 25, 2005, due to specific amendments made to Section 13 of the Canadian Human Rights Act in the immediate aftermath of 9/11/2001 – amendments that for the most part were hastily and prematurely inserted in conjunction with Canada’s Anti-Terrorism Act of November 2001 – Marc Lemire, the owner and webmaster of and his lawyer Barbara Kulaszka were forced by circumstance to challenge efforts which they deemed inimical to the fundamental freedoms contained in Section 2(b).

This was the beginning of the first Constitutional challenge* to the notorious Section 13 of the Canadian Human Rights Act, likely the most specious and controversial piece of legislation to have ever been surreptitiously foisted upon an unwary public.

The objective of the Lemire challenge was to expose not only the unconstitutionality of Section 13 of the Act, one that allowed special interest lobby groups (both foreign and domestic) to use said legislation for partisan political purposes in order to censor writers and publishers on the Internet but also to show how Section 54 of the same Act was being used to impose inordinate fines on anyone found guilty of perpetrating the so-called “hate crimes” with which Section 13 deals with and which Section 54 embellishes with dire and arbitrary financial penalties.

It wasn’t until nearly three years later and only after two years of hearings (comprising 26 days in all) and 8 interveners and 11 witnesses that the case finally reached its conclusion in a three day hearing lasting from September 15th to the 17th in Oakville, Ontario, Canada.

One of the interveners in the case on the side of Lemire was the internationally recognized human rights and freedom of speech lawyer Douglas Christie of Victoria, B.C. On the second day of the hearing in the afternoon Mr. Christie, known around the world as the “Battling Barrister” stood before the podium and gave his long awaited summation. What follows is a record taken from Marc Lemire’s website.

“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 out 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. It has created a bureaucracy that has told us many times here: ‘You don’t get a free pass,’ and we’ve heard it here,” 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 Muslim 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 being 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 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.


* The 2005 Constitutional motion can be read here: Written_Submissions_on_Constitutional_Issues.pdf
The 2008 final submissions can be read here:


Watch these informative youtube presentations by Douglas Christie on issues of free speech and our rights and freedoms.