Thursday, January 28, 2010

NATIONAL POST: Chair's ruling on Section 13 incorrect: rights body



Chair's ruling on Section 13 incorrect: rights body
Facing appeal

Joseph Brean, National Post

Canadian Human Rights Tribunal chairman Athanasios Hadjis over-stepped his authority and erred in law when he declared Section 13, Canada's controversial hate speech law, violates the Charter right to free expression, according to the Canadian Human Rights Commission.

Mr. Hadjis's decision to acquit far-right webmaster Marc Lemire last fall after a six-year hate-speech case brought by activist lawyer Richard Warman is the subject of an upcoming appeal in Federal Court, brought by the CHRC.

A major factor in Mr. Hadjis's decision was that Mr. Lemire immediately removed the offending material on learning of the complaint, but Mr. Warman rebuffed efforts at conciliation, and the CHRC continued to push the case toward a tribunal hearing.

In a memorandum filed with the court, CHRC lawyer Margot Blight argues that the manner in which the CHRC pursues hate speech is "irrelevant" to the constitutionality of the law that forbids it, Section 13(1) of the Canadian Human Rights Act.

"Any question as to whether the Commission's process is sufficiently conciliatory to meet the requirements of the Charter is outside the Tribunal's jurisdiction," the memo reads.

Ms. Blight also argues that the proper course of action, based on Mr. Hadjis's reasoning, was to "sever and refuse to apply" Section 13's penalty provisions, not declare the whole thing unconstitutional.

Mr. Warman, a former employee of the CHRC, brought a complaint against Mr. Lemire in 2003, after monitoring his website for almost a year.

He alleged that postings on the discussion forum, mostly written by other people, contravened Section 13 in that they were "likely to expose" identifiable groups to "hatred or contempt."

In all but one case, Mr. Hadjis decided that these postings either did not contravene Section 13, or that Mr. Lemire cannot be held responsible for what others posted on his website.

In the final case, Mr. Hadjis decided that a racist and homophobic article by a U.S. neo-Nazi called "AIDS Secrets" did violate Section 13, but because he also found the law itself unconstitutional, he declined to make any order. [See Lemire’s response to the “Aids Secret” article]

His decision did not invalidate Section 13 -- only a court or Parliament can do that --but it did suggest the need for high-level clarification. The Supreme Court of Canada last upheld Section 13 as a justifiable limit on free expression in 1990, in part on the basis of its remedial and non-punitive purpose. Eight years later, the penalty provision was added by Parliament, allowing for fines of $10,000.

Mr. Hadjis decided this amendment means Section 13 "can no longer be considered exclusively remedial, preventative and conciliatory in nature."

In the factum, Ms. Blight argues that the activities of the CHRC in pursuing its hate speech mandate were not properly before him for judgment. And even if his reasoning about penalties is sound, he failed to consider two other options: an order against Mr. Lemire to cease the discriminatory practice, or a compensation payment to the complainant, Mr. Warman.  [I am not sure where Brean is getting this stuff about a compensation payment to Warman.  There is not a single word about Warman in the CHRC’s factum.  And the CHRC did not request any penalty against Lemire at the Tribunal.  In fact the CHRC has admitted that the fine provision of the Canadian Human Rights Act is unconstitutional]

Having concluded that Mr. Lemire violated Section 13, the factum states, "the Tribunal was obliged to turn its mind to [an order or compensation], and determine whether one or more of the remedial orders described therein ought to be made in the circumstances. It is submitted that the matter ought to be remitted to the Tribunal for that purpose."  [This is not about compensation; it is actually about the Tribunal issuing a life time speech ban against Lemire]



On September 2 2009, the Canadian Human Rights Tribunal acquitted Marc Lemire of all but 1 posting, and found that Section 13 and 54 was unconstitutional!



Warman/CHRC Allegation
Result?

JRBooksonline Website
Acquitted!

Stormfront Posting
Acquitted!

Messages posted on the Freedomsite message board by Craig Harrison
Acquitted!

Messages posted on the Freedomsite message board by persons other than Mr. Lemire or Mr. Harrison
Acquitted!

Messages posted on the Freedomsite message board by Mr. Lemire
Acquitted!


The “Controversial Columnists” section of the Freedomsite website

The Doug Collins Column
Acquitted!

“Ottawa is Dangerous” Article
Acquitted!

AIDS Secrets column


[279] This question, however, is not what is relevant to the present discussion. The point is that, when assessed against the characteristics of the penalty provisions enumerated in these decisions, it is evident that s. 13(1) has become more penal in nature (irrespective of whether s. 11 Charter rights are necessarily triggered). The provision can no longer be considered exclusively remedial, preventative and conciliatory in nature, which was at the core of the Court’s finding in Taylor that s. 13(1)’s limitation of freedom of expression is demonstrably justifiable in a free and democratic society, and thereby “saved” under s. 1 of the Charter.


[290] Thus, following the reasoning of Justice Dickson, at 933,one can no longer say that the absence of intent in s. 13(1) “raises no problem of minimal impairment” and “does not impinge so deleteriously upon the s. 2(b) freedom of expression so as to make intolerable” the provision’s existence in a free and democratic society. On this basis, I find that the Oakes minimum impairment test has not been satisfied, and that s. 13(1) goes beyond what can be defended as a reasonable limit on free expression under s. 1 of the Charter.


c) Conclusions with respect to the claim of infringement on the freedom of expression

[295] For all the above reasons, I find that s. 13(1) infringes on Mr. Lemire’s freedom of expression guaranteed under s. 2(b) of the Charter, and that this infringement is not demonstrably justified under s. 1 of the Charter.


V. CONCLUSION
I have determined that Mr. Lemire contravened s. 13 of the Act in only one of the instances alleged by Mr. Warman, namely the AIDS Secrets article. However, I have also concluded that s. 13(1) in conjunction with ss. 54(1) and (1.1) are inconsistent with s. 2(b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit within the meaning of s. 1 of the Charter. Since a formal declaration of invalidity is not a remedy available to the Tribunal (see Cuddy Chicks Ltd. V. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5), I will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial order against him (see Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at paras. 26-7).







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

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Other website commentary on the appeal by the CHRC



BlazingCatFur:

 
 Hardly news but that's their argument : "Nazi Party CHRC lawyer Margot Blight argues that the manner in which the CHRC pursues hate speech is "irrelevant" to the constitutionality of the law that forbids it"  ...and irrelevant to the rule of law and due process as well I assume.
...

So the CHRC is arguing that it's perfectly fine for them to abuse due process and natural law as they've done all along - I'm not surprised in the least, the real Nazi's loved laws like Section 13 (1) as well . As a matter of routine the CHRC accepted "evidence" gained through means rightly described as entrapment, withheld evidence and documentation from complainants, ignored their own stated procedures and conducted "investigations" according to instruction from complainants rather than as an independent objective body,  further CHRC staff routinely joined Neo Nazi web sites and have been caught registering for and one presumes investigating web sites against which no formal complaints have been filed, have succumbed to undue influence as a result of regulatory capture by politically driven individuals and special interest groups, run roughshod over the right to freedom of religion & freedom of the press all the while subjecting their victims to a punishing one sided abuse of our democratic legal traditions... and the beat goes on - they hope.    







The Queen is not Amused

The power to censor is a very powerful power indeed. That's something Canada's Queen Censor, Jennifer Lynch, well knows. And it's the reason she's so unwilling to let anyone--anyone--take that power away from her. The National Post's Joseph Bream reports on Jen's latest effort to reclaim her regal prerogative:
...[ABOVE ARTICLE]...
 What a feeble argument. Either the sucker's legit or it isn't. And if it isn't (and it isn't), then the whole thing, penalties and all, must get axed.

Will a real judge in a real courtroom fall for this line? I suppose that depends on the judge's ideological leanings. If he or she is someone who is wishy-washy on the subject of free speech and has swallowed the censors' and Official Jews' spin re "hate speech" (i.e. that "evil words lead to evil deeds"), then Queen Bossyboots may well get her power (the power to make you STFU in the name of "civility" and societal "harmony"--don't you pine to live in a bland Utopia like that?) reaffirmed.