Tuesday, February 23, 2010

Marc Lemire files at the Federal Court to oppose Internet censorship from the misnamed Canadian "Human Rights" Commission

On February 15, 2010, Marc Lemire filed his Memorandum of Fact and Law, which documents the ravenous censorship and corruption of the Canadian Human Rights Commission.

As filed at the Federal Court of Canada

Summary of Lemire's submissions to the Federal Court:

  • The Canadian Human Rights Tribunal reached the proper decision to find Sec. 13 and 54 unconstitutional

  • The Tribunal made the correct decision to look at “the real and factual context in which s. 13 existed”.

  • The evidence showed beyond doubt that s. 13(1) is not used in a remedial fashion

  • CHRC shares information with Police (and never informs the victims), which is an infringement on the rights of Canadians

  • Even the Tribunal don't see Sec. 13 as remedial and routinely makes orders which are “symbolic” value as a “public denunciation” of the respondent’s actions. This imports the moral condemnation and stigma which Taylor believed was absent from human rights legislation.

  • When the Human Rights Act was established it was directed to telephone hotlines, and Bell Canada received  "common carrier" status and thus could not be harassed.   Yet in the Internet age, ISPs do not have "common carrier" status and thus are subjected to on-going harassment campaigns and threats of legal action to disconnect customers.

  • Internet is a democratizing medium which allows public discourse by people who previously had no means to participate meaningfully in public debates or issues.

  • Newspapers, radio and TV stations and magazines are published on the Internet so that any limitation on freedom of expression on the Internet includes limitations on freedom of the media and the press

  • By failing to provide the basic defences of fair comment, responsible journalism, truth and lack of intent to s. 13(1), in a communications context where the press and media publish daily, the provision is no longer a reasonable limit on freedom of expression including that of the press.

  • Failure to provide the defence of Truth makes Section 13 fail meet the proportionality test of section 1 of the Charter.

  • "hate" is subjective and vague.  It is a subjective human emotion and has no place in law

  • So-called "hate" speech does not cause any “psychological distress” or harm in those voluntarily exposed to it on the Internet.

  • Canada has a general population that deals well with expression, values the right to expression and does not experience the harm that is said to justify s.13(1). Canadians overwhelmingly prefer open debate, not censorship.

[Click to enlarge]


In September 2009, the Canadian Human Rights Tribunal ruled that Section 13 of the Canadian Human Rights Act was an unconstitutional violation of Canada's Charter of Rights.

The Tribunal ruled that: 
[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.

[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.

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).

See full decision [here]

On January 25, 2010, using tax-payers money, the Canadian Human Rights Commission challenged the Lemire decision, which found that the thought control legislation of the Canadian Human Rights Act was unconstitutional and a violation of the Charter guaranteed rights to freedom of speech and thought.

The battle ground for freedom has now moved to the Federal Court of Canada.

-Marc Lemire

I need your help for the Appeal!


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