Friday, September 4, 2009

Statement by Marc Lemire on the Tribunals decision to declare Section 13 as unconstitutional and the "AIDS Secrets" article

Statement by Marc Lemire on the Tribunals decision to declare Section 13 as unconstitutional and the “AIDS Secrets” article

First and foremost, I would like to thank everyone that has been so interested in my case. It was very reassuring to see so many Canadians disgusted by Section 13 – the Canadian governments thought control legislation. It has been a long and hard battle, and very refreshing to be vindicated at the end.

For the past six years, I have been battling the, out of control, Canadian Human Rights Commission and their fellow travelers. The human rights fanatics – so desperate to get me – were willing to use every deceitful method to shut me up. Thankfully justice prevailed and they were denied.

The decision by the Canadian Human Rights Tribunal to declare that Section 13 and 54 is a violation of the Charter of Rights and Freedoms is a welcome ruling. Canadians can breathe easier today and not have to worry about Big Brother staring over their shoulders and parsing every word they say, looking for alleged “hate” or “contempt.”

Ezra Levant writing in the National Post said that “it’s a great day for freedom of speech” and I could not agree more. Sadly it took close to six years of intense litigation to protect my Charter guaranteed rights.

The one document that the Tribunal found to be a violation of Section 13 is an essay written by an American entitled “Aids Secrets.” It was written back in the early 1990’s during the initial hysteria surrounding the Aids virus. See below for the full defence I filed with the Tribunal.

It is quite ironic that an agency of the Canadian government would find me liable for posting an article that pointed out that homosexuals have a greater risk of AIDS. Especially when another agency of the Canadian government (Canada Blood Services Agency) refuses to accept blood or plasma from homosexuals!

Who is really the one “discriminating”? Me, for posting an article, which highlights the fact that homosexuals might have a greater risk of having AIDS, or a governmental agency that actually bars homosexuals from giving blood or plasma?

I simply tried to start a conversation about the alleged link with homosexuality and the AIDS virus. The Government of Canada actually bans homosexuals from donating blood and plasma.

I say again, who is the one actually discriminating? The one who says it, or the one who does it?

The link between homosexuality and sexually transmitted diseases, if one actually exists, is a public policy concern. It affects all Canadians. The Government of Canada should have no role in deciding what can be classified as permissible speech and what is sanctioned.

Please keep visiting my website, as in the upcoming days I will post a more detailed account of the decision and my reaction.

-Marc Lemire

Sept 4, 2009


Marc Lemire’s Defence to the article “Aids Secrets”

1. AIDS Secrets@ is a discussion written some 10 years prior to the complaint in 1993. Using then current research from reputable sources, it alleged AIDS was predominantly found in homosexuals, drug users, and blacks. The author relied on public source documents such as the American Journal of Public Health.

2. The essay is a serious discussion of public health issues which affect different groups differently. Race and sexual practices impact differently on different health issues. The tainted blood scandal in Canada is proof that there must be open and free discussion of health issues even if homosexuals or racial groups are offended.

3. As soon as the respondent was informed that this document was at issue (Warman’s complaint form), within 15 days he voluntarily removed it from the internet in an attempt to settle the complaint. The document was never put back online.

MS KULASZKA: And you'll agree that after you laid the complaint Mr. Lemire voluntarily removed one of the first articles you complained of which was "AIDS: SECRETS"; is that correct?

MR. WARMAN: I believe that is correct, yes. [Transcripts, Volume 4 | Page: 737]

4. The medical articles mentioned in the article and other contemporaneous articles were filed at Exhibit R-1, Tab 14. Warman had never read the medical articles referenced and relied upon in the AIDS SECRETS article. [Vol. 6, p. 1165]

5. The documents entered into evidence were:

· Demographic Differences in Cumulative Incidence Rates of Transfusion-associated Acquired Immunodeficiency Syndrome (American Journal of Epidemiology, Volume 140. No. 2, Page 105-112)

· Racial/Ethnic Differences in the Risk of AIDS in the United States (American Journal of Public Health, December 1988, Vol. 78. No 12, page 1539-1545)

o (p.10) “Although most patients reported with acquired immunodeficiency syndrome (AIDS) in the United States are non-Hispanic White homosexual males, the perception of AIDS as a predominantly a disease of gay White men has changed. The risk of AIDS is higher in American Blacks and Hispanics and the racial/ethnic differences in risk are greatest in association with intravenous-drug abuse (IVDA) by heterosexuals.”

o (p.10) “Overall, the risk (cumulative incidents) of AIDS in Blacks and Hispanics was almost three times as great as that in Whites”

o (p.10) “The proportion of AIDS cases associated with IVDA by heterosexual (including their sex partners and children) was 39.7 per cent Blacks and 38.7 per cent in Hispanics, compared with 6.3 per cent in Whites. 4.0 per cent in Asians and Pacific Islanders, and 19.6 per cent in American Indians.”

· Resistance of AIDS virus at room temperature (The Lancet, Vol II for 1985, No. 8445, July 6, 1985. Page 721-722)

o Fig 1 shows the unusual stability of LAV/HTLV-III at room temperature (20-22°C). No significant difference was found between 0, 2, or 4 days. Only a slight decrease is noted with a delay in the virus production indicating a loss of few infectious viral particles after 7 days at room temperature.” … “The resistance of LAV at room temperature may explain the appearance of some AIDS cases in non-risk groups.”

· Patterns of Sexual Behavior and Condom Use in a Cohort of Homosexual Men (American Journal of Public Health, December 1988, Vol. 78, No. 12, Page 1535-1533)

6. The “Aids Secrets” article identifies “high-risk groups” as “including Blacks, Third World immigrants, homosexuals, and drug users.” These were the exact high-risk groups that were identified in the medical articles above and all through the Krever Report in the tainted blood scandal in Canada.

7. Warman agreed that there had been a major scandal in Canada regarding the tainting of blood supplies with the AIDS virus, examined by the Krever Commission. [Vol. 6, p. 1165]

8. The Krever Report set out the results of the investigated into the safety of the blood system in Canada. The Krever report is available online through the National Archives of Canada.

9. Some relevant portions of the Krever Report:

· (p.184) “This hypothesis did not explain, however, why the disease was prevalent among homosexual men and intravenous drug users living in several large urban centres but not among those living in smaller communities throughout the United States”

· (p.187) “There was agreement that the disease was caused by an infectious agent and that those at risk of developing the disease included intravenous drug users and Haitians, in addition to homosexual men

· (p.188) “As reported by the CDC, 75 per cent of the persons involved were homosexual or bisexual men, 13 per cent were intravenous drug users, 6 per cent were Haitians, 0.3 per cent were hemophiliacs, and the remainder did not belong to any of those risk groups.”

· (p.189) “Also in October, the National Hemophilia Foundation recommended that homosexual men, intravenous drug users, and Haitians be excluded from donating blood or plasma in circumstances in which the plasma from the donations could be used to manufacture factor VIII or factor IX concentrates.”

· (p.215) “On the same day, Alpha Therapeutic Corporation announced that it was changing the way in which it questioned and examined its donors in order to attempt to exclude persons at high risk from AIDS. It would ask them directly whether they had resided in Haiti, were intravenous drug abusers, or were homosexual men.”

10. The “Aids Secrets” article written by Strom is a discussion of the threat HIV/AIDS posed to his readers. The article was meant to generate discussion based on his own personal research. Strom did not advocate any harm to come to those infected with HIV/AIDS, but rather for his readers to be safe and “avoid repeated close contact with those in high-risk groups” (Exhibit HR-2, Tab 10)

11. All expert witnesses called at the hearing agreed that the truth of the articles in question needs to be examined.

12. Commission expert witness Karen Mock, testified that the truth is an essential element in deciding whether expression was, as she defined it, hatred or contempt. [Facts, p. 242] She agreed with the proposition that to make the distinction between criticism and contempt, one had to decide whether what was being said was factually true or not. [Facts, p. 239]

13. The Attorney General’s expert, Tsesis testified that if statements about groups were simply true, then there was no expression of hatred. He was quite clear on this point and did not qualify it. [Facts, p. 319]

14. Tsesis also testified that the assessment of truth or falsity of a statement would be a “critical part” of the assessment of the nature of an expression and its effect. He testified: “I think it would only be logical for a court to inquire into its truth.” [Facts, p. 316-321 at 317] He said that a person should be allowed to prove that a statement was true, even though it exposed an identifiable group to hatred. [Facts, p. 316]

15. Lemire expert witness Downs testified: “Truth the often inconvenient. I think back in my country, how many religious people just hate the theory of evolution. It's deeply offensive to them. It hurts them. And so that's a very important point, that offence alone can't be grounds for censorship unless we want to end up not being able to discover new truths.” This was especially so, he said, when there was a highly emotional, politically charged kind of context. For example, criticizing aspects of Islam because of its links to terror: “If we make offence a grounds for prosecution then we've basically given Islam a free pass. You can't criticize them. And, of course, that's an unreasonable kind of proposition, just as would blanket criticism of Islam be unreasonable.” [Facts, p. 289]

16. The “Aids Secret” was true concerning those groups that were high-risk of having Aids. The high risk groups looked at in “Aids Secrets” were the same groups identified as “high-risk” by the Government of Canada in the Krever report, and by the Centers for Disease Control in the United States of America.

17. It is not hate to examine medical documents looking for high risk groups. It is not hate to have a debate on what factors have led to high rates of AIDS in certain groups. It is not hate to let the general public know who the high risk groups are of AIDS.

18. Classifying opinion as Ahatred@ is an effort to ban or inhibit discussion of a subject by making it taboo. When truth is not relevant in matters of expression, then rationality and conscience are no longer present. What remains is ritual or occult, resulting in taboos using fear and punishment as inhibitors. Tribunal proceedings in this sense are not judicial, but ritualistic proceedings in which a person and his thoughts are banned or excommunicated from public expression. The Tribunal procedure constitutes religion, not reason, when truth is excluded. It is a new form of blasphemy, much broader and more suffocating than before, now protecting not only religion but ethnicity, race, sexual orientation and so on.

19. Klatt testified that the web log files for the Strom article, “Aids Secrets”, showed that the article was accessed (successfully and unsuccessfully) a total of 927 times from January 2, 2003 to December 31, 2005. The log files showed that the article was removed from the Freedomsite on April 9, 2004 (only 15 days after Lemire received Warman’s complaint on March 25, 2004)

20. Of the 927 times it was accessed:

472 times it was unsuccessful (the page was removed from the site)

71 times by search engines such as Google or MSN Search

799 times by visitors from the United States

19 times were by Canadians (of which only 8 were unique visitors) [Vol. 8, p. 1570-1572] [Exhibit HR-2, Tab 10; Web logs at Exhibit R-2, Tab 18; Klatt Expert Report, Exhibit R-2, Tab 1, p. 9, para. 48-49]

21. Thus, during the time the document was online, only 8 people from Canada viewed the article. Of the 8 Canadians that viewed “Aids Secrets”;

· 1 was Richard Warman [Transcript, Vol. 2, p. 275].

· 1 was Hannya Rizk and [When preparing the investigators report]

· 1 was Marc Lemire.

22. The document was therefore only looked at by, at most, 5 other Canadians since January, 2003.

23. Section 13 is limited to communications “in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament” Only 1.62% of people who viewed the “Aids Secret” article came from Canada. A clear majority of visitors came from the United States (84.24%) (Exhibit: R-2, Tab 19, Page 10) Since the Freedomsite was located in the United States of America [Exhibit R-4, Tab 3, p. 5], all others who viewed this document were outside the ambit of Section 13, as the communication absolutely could not have taken place “by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament”

24. The Taylor decision referred material caught by Section 13 as: "expression intended or likely to circulate extreme feelings of opprobrium and enmity against a racial or religious group". This document does not circulate extreme feelings of opprobrium or enmity against any protected group under the Act and the very low number of Canadians who viewed it means it is not likely that it exposed any person to hatred or contempt. In addition, it constitutes core political speech relevant to public health issues, specifically, the AIDS crisis, which should be protected by the Charter.

25. It should be noted that while the Commission is attempting to have the Strom “Aids” article banned as hate, the Federal Government of Canada will not allow men who have had sex with other men to make blood or organ donations. On June 21, 2007, the Federal Government Blood Services Agency (administered by Health Canada), issued a policy “indefinitely deferring any male from donating blood if he has had sex with another male, even once, since 1977” This policy is currently in effect today. (Canadian Blood Services' statement regarding the decision on the policy of deferring any male from donating blood if he has had sex with another male – June 21, 2007)

26. Canadian Blood Services states:

“The MSM [Men who have had sex with other men] deferral policy is part of our screening procedures that are designed to identify a variety of behaviours and circumstances known to increase risk to the safety of the blood supply.

The review process began with a literature review, analysis of surveillance data and assessment of international MSM policies. Next, the Board of Directors commissioned the McLaughlin Centre for Population Health at the University of Ottawa to undertake an independent risk assessment of the current policy.” (Canadian Blood Services' statement regarding the decision on the policy of deferring any male from donating blood if he has had sex with another male – June 21, 2007)

27. The Canadian Blood Services Agency agrees with the conclusions of the Strom article, that homosexual men are a high-risk group:

What is the rationale behind Canadian Blood Services' current policy on MSM?

The basic premise for the deferral criteria is that the prevalence and incidence of HIV is much higher in males who have had sex with other males (MSM) than it is in individuals having exclusively heterosexual sex, according to 2005 statistics from the Public Health Agency of Canada.

At the present time, United States FDA regulations, as well as Council of Europe Regulations, require the indefinite deferral of men who have sex with men even once since 1977. This includes the U.S., the U.K., France, Germany, Switzerland, Holland, Norway, Denmark, Sweden, Finland, Iceland and Hong Kong. There are a few countries that have shorter deferral periods; 1 year - Argentina, Australia, Japan, Hungary; 5 years - South Africa; 10 years - New Zealand. (Blood Services Canada Questions and Answers MSM Policy Decision)

28. On January 7, 2008, the CBC reported that:

Dr. Peter Nickerson, director of Transplant Manitoba, which procures organs in that province, said transplant programs must now by law interview family members of the donor as part of the screening process.

"We'll be asking about things like travel, history of infectious disease, whether they've [donors] been in jail — that puts you at increased risk," Nickerson said. "Have they been an IV drug abuser in the past? Have they had tattoos? There's a whole list of questions we go through."

They are also asked about the donor's sexual orientation. The donor will be excluded if the donor is a man who had sex with another man in the previous five years.

Health Canada had contracted the Canadian Standards Association in 2003 to come up with standardized guidelines to ensure the safety of the organ donation system.

Transplant programs have been screening potential donors, but in some cases use organs from people in high-risk groups if they've tested negative for diseases. The new legislation means that practice must stop.

(CBC: January 7, 2008: Sexually active gay men no longer allowed to donate organs)\

29. The AIDS article cannot have the effect of exposing homosexuals or any other high risk group to hatred in these circumstances. The Canadian government’s own policy is to exclude active homosexual men from giving blood or donating organs. In today’s society, the Strom article, which might have been controversial in the 1980s, is no longer capable of having the effect required by section 13. The Canadian government in fact does follow discriminatory practices with respect to men practicing homosexuality for public health reasons.