Thursday, June 11, 2009

CAFE SEEKS "INTERESTED PARTY" STATUS IN B'NAI BRITH V. ARTHUR TOPHAM & RADICALPRESS.COM

 

Canadian Association for Free Expression

Box 332,

Rexdale, Ontario, M9W 5L3

Ph: 905-274-3868; FAX: 905-278-2413

Paul Fromm, B.Ed, M.A. Director

 

Canadian Human Rights Tribunal

160 Elgin Street

11th Floor,

Ottawa, ON.,

K1A 1J4 

 

Attention:  Nancy Lafontant, Registry Officer Registry Officer                Fax: 613 995-3484

                                                                                                           

June 10, 2009

 

Harry Abrams and the League for Human Rights of B’nai Brith Canada v. Arthur Topham and the RadicalPress.com

File Number: T1360/9008

 

 

Dear Ms Lafontant:     

 

            I write seeking leave to make a motion to obtain standing as an Interested Party making written and oral submissions in the matter of Harry Abrams and the League for Human Rights of B’nai Brith Canada v. Arthur Topham and the RadicalPress.com

 

 

            I rely on the provisions of Rule 8(1) of the Canadian  Human Rights Tribunal Rules Of Procedure (03-05-04):

 

8(1) Anyone who is not a party, and who wishes to be recognized by the Panel as an interested party in respect of an inquiry, may bring a motion for an order granting interested party status.

 

            CAFE's  mandate is to work toward the maximum latitude of the freedom of speech, freedom of the press and freedom of belief provisions of Sec. 2(b) of the Charter of Rights and Freedoms. Founded in 1981, we have published extensively material supportive of these goals, made representations to various levels of government and  obtained intervenor or Interested Party status in a number of cases.

 

            We are especially concerned about efforts to restrict the Internet, which we see as an inexpensive and accessible medium to persons of modest means who might otherwise be excluded from some of the older more established media. We obtained Interested Party status in the Zundel Internet case (1997-2002) are were an active participant, calling witnesses and making submissions. We were equally active in the Micka Internet case (2001). We participated as an "interested party" in more than 30 days of hearings in Toronto,. Mississauga, Ottawa and Oakville in Warman v Marc Lemire.

 

            Our perspective and experience may be of assistance to the Tribunal in considering that CAFE, as an "interested party" has appeared as an intervenor in more Sec. 13 Internet cases than any other entity in Canada. Furthermore, Mr. Fromm has extensive experience -- more than any other person -- as an agent in Sec. 13 cases (Warman v. Glen Bahr and Western Canada for Us; Warman v. Terry Tremaine; Warman v. Jessica Beaumont; Warman v. Ciaan Donnelly; Warman v. Melissa Guille and Canadian Heritage Alliance; Warman v. Jason Ouwendyk and the Northern Alliance; Canadian Centre for Research-Action on Race Relations   v. BCWhitepride.com)

 

 

 

                                                                                    Sincerely yours,

 

 

                                                                                    Paul Fromm

                                                                                    Director

 

           

                              

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                          TRIBUNAL NUMBER: T1360/9008

 

 

CANADIAN HUMAN RIGHTS TRIBUNAL

 

BETWEEN:

 

HARRY ABRAMS

 

and

 

 the LEAGUE FOR HUMAN RIGHTS OF B’NAI BRITH CANADA 

 

                                                                                                                                                                                                                       COMPLAINANTS

 

 

 

 

ARTHUR TOPHAM

 

and

 

 the RADICALPRESS.COM

 

 

                                                                                                        RESPONDENTS

 

 

 

Affidavit of Paul Fromm

 

 

I, Paul Fromm, of the City of Mississauga, in the Province of Ontario, hereby affirm and say that:

 

2. I am the Director of the Canadian Association for Free Expression Inc. the applicant herein.

 

3. The Canadian Association or Free Expression  Inc. is applying for  "interested party status" in the matter of the complaint against Arthur Topham and Radicalpress.com for posting material,  which, it is alleged. " is likely to expose individuals to hatred or contempt" on the basis of  race, religion,  and national origin contrary to Sec. 13.1 of the Canadian Human Rights Act.

 

4. The Canadian Association for Free Expression Inc. is a non-profit educational organisation incorporated under the laws of the Province of Ontario. It is dedicated to promoting and maximising the Charter guarantees of freedom of speech, freedom of expression and freedom of assembly.

 

5.The Canadian Association for Free Expression publishes a regular newsletter, the Free Speech Monitor, that explores threats to freedom of speech in Canada. CAFE hold frequent meetings on free speech issues across Canada. CAFE makes representations to legislative bodies on matters relating to freedom of speech.

 

6. The Canadian Association for Free Expression was  granted intervenor or "interested party" status before the Canadian Human Rights Tribunal inquiring into the Internet case against Ernst Zundel. This was a Sec.. 13.1 complaint and involved over 50 days of hearings. CAFE participated actively and led  five days worth of evidence, involving seven witnesses.

 

7. CAFE also participated in a number of applications for judicial review of decisions involving this hearing.

 

8. The Canadian Association for Free Expression was granted intervenor status in the Supreme Court of British Columbia in a challenge to the constitutionality of Sec. 7(1)(b) of the B.C. Human Rights Code in the Berscheid case.

 

9. As well, in the Autumn of 2000, the Canadian Association for Free Expression was granted intervenor status in a constitutional challenge to the same section of the code in the Doug Collins/North Shore News case. CAFE was granted the right to cross-examine witnesses, make submissions and introduce evidence. This complaint also raised and relied on the controversial and much disputed Sec. 7(1)(a)(b),

 

10. In addition, the Canadian Association for Free Expression was granted intervenor status n a B.C. Human Rights Tribunal hearing in a complaint against the Town of Oliver and Mayor Linda Larson following their refusal to proclaim Gay Pride Week.

 

11. In the matter before this tribunal, the Canadian Association for Free Expression intend  to support the respondent on the grounds that the complaint interferes with his freedom of speech, a right enshrined in the Canadian Charter of Rights and Freedoms. Furthermore,. we can assist the Tribunal by tendering expert witness on the Internet.

 

12. CAFE seeks full participatory rights to make oral and written arguments, to present written evidence, to call witnesses and to cross-examine witnesses.

 

13. The Canadian Human Rights Tribunal in the Zundel case, in granting CAFE's motion for "interested party status", ruled:

 

"We find that the motion brought by Mr. Fromm,. on behalf of the Canadian Association for Free Expression, should be allowed.  We are satisfied that. Mr. Fromm will bring a unique perspective to these proceedings and that his organization has demonstrated a credible interest in the significant issue before this tribunal. ... The focus of Mr. Fromm's organization is on the issue of free expression."

 

14. In granting the Canadian Association for Free Expression "intervenor status" in the complaint against the town of Oliver, Tribunal member Nitya Iyer noted, February 16, 2000:

 

"The material brought before me shows it [CAFE]  has a demonstrated interest in freedom of expression issues in the context of human rights legislation. I am prepared to accept that its participation may assist the Tribunal in its resolution of the constitutional issues raised in this complaint. I also note that the constitutional issue raised in this complaint has implications before the narrow facts of the present complaint. The interpretation of provisions of the code in light of the Charter's guarantee of freedom  of expression is a matter of public interest."

 

15. CAFE was also granted "interested party" status in the Schnell vs.. Micka Canadian Human Rights complaint (2001) also under Sec.. 13.1 and involving Mr.. Micka's Internet site. In this seven day hearing, CAFE actively cross-examined witnesses, led expert testimony and made submissions to the Tribunal.

 

16. CAFE sought and obtained "interested party" status in the Richard Warman v Marc Lemire case, with particular reference to Mr. Lemire's constitutional challenge

 

17. CAFE, as an "interested party" has appeared as an intervenor in more Sec. 13 Internet cases than any other entity in Canada.

 

18. I have  extensive experience -- more than any other person -- as an agent in Sec. 13 cases (Warman v. Glen Bahr and Western Canada for Us; Warman v. Terry Tremaine; Warman v. Jessica Beaumont; Warman v. Ciaan Donnelly; Warman v. Melissa Guille and Canadian Heritage Alliance; Warman v. Jason Ouwendyk and the Northern Alliance; Canadian Centre for Research-Action on Race Relations   v. BCWhitepride.com).

 

19. As Sec. 13 jurisprudence develops and evolves some submissions repeatedly made by myself and CAFE seem to have been adopted by the Tribunal. Earlier tribunals ignored the fact that many passages complained of had long since been removed. However, in Warman v. Jason Ouwendyk and the Northern Alliance, the Member declined to impose any financial penalty noting:

 

"There is no evidence that the impugned conduct by the Respondents has continued to the present time. Instead it appears to have been discontinued well before the complaint... (para 57)

 

In regard to the other remedies sought by Mr. Warman, I have decided not to grant any relief under these provisions." (para. 58)

20.. I make this affidavit in support of CAFE's application for "interested party" status with rights to full participation in these hearings.

 

 

  ____________________________________________________

               Frederick Paul Fromm

Director, Canadian Association for Free Expression Inc.

 

 

Affirmed before me this  10th  day of  June, 2009         

at the City of  Toronto, in the Province of Ontario

           

                                                

 ___________________________________________

 A Commissioner of oaths in and for the Province of Ontario

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TRIBUNAL NUMBER: T1360/9008

 

 

CANADIAN HUMAN RIGHTS TRIBUNAL

 

BETWEEN:

 

HARRY ABRAMS

 

and

 

 the LEAGUE FOR HUMAN RIGHTS OF B’NAI BRITH CANADA 

                 

 

                                                                                                  COMPLAINANTS

 

 

 

 

ARTHUR TOPHAM

 

and

 

 the RADICALPRESS.COM

 

 

                                                                                                        RESPONDENTS

 

 

 

 

 

 

NOTICE OF MOTION

 

TAKE NOTICE THAT the Canadian Association for Free Expression, Inc. will make a motion to the Tribunal in writing.

 

 

THE MOTION is for an order granting interested party status in the proceeding to the Canadian Association for Free Expression, Inc. with full rights of participation, including the right to call evidence, cross-examine witnesses and make final submissions to the Tribunal.

 

THE GROUNDS FOR THE MOTION ARE:

 

 

The applicant in a non-profit organization, incorporated in 1981, under the laws of the Province of Ontario.

 

The applicant's mandate is to work toward the maximum latitude of the freedom of speech, freedom of the press and freedom of belief provisions of s. 2(b) of the Canadian Charter of Rights and Freedoms. Founded in 1981, the applicant has published extensively material supportive of these goals, made representations to various levels of government and obtained interested party status in a number of human rights cases.

 

This proceeding raises important issues regarding the core values of freedom of expression and conscience, and the application of section 13 to the Internet and indeed all private computer networks, including responsibility for messages not written by the respondent on a message board. It raises the issue of the responsibilities and duties of the complainant with respect to message board communications.

 

The applicant brings a unique expertise experience to this proceeding having intervened in more Sec. 13 Internet cases than any other organization and, personally, having acted as an “agent” for more respondents in Sec. 13 cases than any other person in this country.

 

THE FOLLOWING EVIDENCE will be used at the hearing of the motion: the affidavit of Paul Fromm, Director of the Canadian Association for Free Expression.

 

DATED this 10th day of June, 2009.

 

 

____________________

Paul Fromm, Director

Canadian Association for Free Expression, Inc.

P.O. Box 332,

Rexdale, ON

Tel: 905-274-3868

Fax: 905-278-2413