BCCLA Intervene in the Marc Lemire Free Speech case
On February 25, 2010, Canada's largest Civil Liberties Association has filed at the Federal Court of Canada to intervene in the Marc Lemire Constitutional Challenge to the internet censorship of the Canadian "Human Rights" Commission and Section 13 of the "Human Rights" Act.
Motion Record of the British Columbia Civil Liberties AssociationNotice of Motion (2 Pages)
Affidavit of David Eby - Documenting the BCCLA's history on intervening in Freedom oriented cases (8 pages)
Written Representations - Lays out the BCCLA's position on Section 13 censorship and why it is unconstitutional legislation (16 pages)
The British Columbia Civil Liberties Association have made some very good submissions to the Federal Court of Canada on why the power to censor the internet should - and MUST - be removed from the ambit of the fanatical Canadian "Human Rights" Commission.
The BCCLA submits that:
- Freedom of expression is a fundamental democratic right. The BCCLA's mandate is to preserve, defend, maintain and extend civil liberties and human rights across Canada
- Section 13 and 54 of the Canadian Human Rights Act infringe s. 2(b) of the Charter of Rights And Freedoms and that the infringements cannot be justified under s. 1 of the Charter
- The context has changed since the Taylor decision in 1990 (which found s. 13 constitutional). The main change is the law is now punitive and penal in nature. And that sec. 13 has been expended to the Internet
- The digital era changes everything, and sec. 13 should not restrict expression on the internet.
- The Internet is par excellence a democratic "marketplace of ideas", which provides its own self-corrective solution to problems of inaccurate, offensive and hurtful content.
- The potential for "psychological injury" to members of society (which formed the basis for the Taylor decision) is lessened by user control over content, and provides individuals with a high degree of control over viewing of information
- Severing S. 54 (fines) from the Human Rights Act, does not make s. 13 constitutional. (As the CHRC claims). It does not address 1) strict liability and the absence of defences. 2) the extension of the hate speech provision to the internet.
Background to Lemire case:In 2003, serial plaintiff Richard Warman filed a Section 13 complaint against Marc Lemire for postings on the Freedomsite message board. None of the posting complained about were written or approved by Marc Lemire, but because he was the webmaster of the message board, the CHRC is trying to hold him liable.
In 2005, Lemire challenged the constitutionality of Section 13 and 54 of the Canadian Human Rights Act as an egregious censorship provision severely limiting freedom of speech and thought. Section 13 of the Canadian Human Rights Act is Canada's shameful internet censorship provision.
Section 13 makes it an offence to "likely" "expose" privileged groups to "hatred and/or contempt." There are NO defences under Section 13! Even truth and intent are considered irrelevant to a finding of discrimination.
The law was enacted in 1977 in order to silence a man named John Ross Taylor for messages he recorded onto his telephone answering machine. In the intervening 32 years, not a single person who has been hauled up on Section 13 charges has ever been acquitted - a 100% conviction rate.
Mainstream media outlets, from Victoria to Halifax, have demanded a repeal of Section 13 and denounced the human rights industry. Editorials commonly refer to the Tribunal as a "kangaroo court," and highlight how 'human rights' commissions "threaten our liberty."
The case against Lemire dragged on for 5 years before the Canadian Human Rights Tribunal, and before the Federal Court of Canada, where the CHRC was forced to admit they spy on Canadian and American websites.
Since Marc Lemire and his courageous lawyer Barbara Kulaszka went to work, the entire landscape of Section 13 censorship has changed.
On Sept 2, 2009, the Human Rights Tribunal fully acquitted Marc Lemire, and refused to apply Section 13 due to its unconstitutional provisions. The case has been appealed by the CHRC human rights fanatics.
Messages posted on the Freedomsite message board by Craig Harrison
Messages posted on the Freedomsite message board by persons other than Mr. Lemire or Mr. Harrison
Messages posted on the Freedomsite message board by Mr. Lemire
The “Controversial Columnists” section of the Freedomsite website
The Doug Collins Column
“Ottawa is Dangerous” Article
|AIDS Secrets column|| |
The Lemire Tribunal ruled that:
 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
 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.
 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.
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),  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.
[See: Canadian "Human Rights" Censors file at the Federal Court of Canada to keep their precious censorship franchise]
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