Thursday, April 8, 2010

Canadian Civil Liberties Association Applies for Intervener Status in the Lemire Constitutional Challenge of Internet Censorship

CCLA supports Free Speech and an end to CHRC Censorship


The Canadian Civil Liberties Association has filed a 200+ page intervention application at the Federal Court of Canada.  They are seeking to rid Canada of Section 13 of the Canadian Human Rights Act, which is Canada’s shameful Internet censorship legislation.


Motion Record of the Canadian Civil Liberties Association

Written Representation of the Proposed Intervener the Canadian Civil Liberties Association (14 Pages)

Affidavit of Abigail Deshman. Sets out who the CCLA is and their interest in freedom of speech (39 pages)

Case Law Referred to by the CCLA (118 pages) 


The Canadian Civil Liberties Association is one of Canada’s premier organizations protecting freedom of speech.  According to the Affidavit of Abigail Deshman, the CCLA “has long been concerned with the protection of civil liberties in Canada.  The CCLA has long been involved in initiatives relating specifically to freedom of expression.”

The CCLA submissions specifically address two key points: 

1.     The manner in which individuals experience the effect of a statutory scheme is a proper consideration in the context of a Section 1 analysis when examining a statute that, on its face, aims to operate in a conciliatory or remedial manner

(This submission takes aim directly at the CHRC’s arguments, which claim the Lemire defence should  not have been allowed to look at the CHRC’s long history of censorship and persecution and the fact that although the law is 100% remedial, the CHRC has used the law to persecute and punish people for bad thoughts and speech)


2.     Severance is not an appropriate constitutional remedy in the circumstances of this case, and in freedom of expression cases more generally. 

(The CHRC claims that the Tribunal should have just dropped the fines provision and that in turn will magically make the law constitutional and not an infringement on freedom of speech)



Select submissions of the CCLA

On Section 13 lack of remedial basis:

  • In the instance case (Lemire case), the Tribunal held that the inclusion of a penalty provision at Section 54(1) fundamentally altered the nature of Section 13 and, therefore, section 13 was no longer consistent with section 2(b) of the Charter
  • As a component of the constitutional analysis, the Tribunal considered evidence that respondents to section 13 complaints do not experience a conciliatory, preventative, and remedial process.  Rather, the process is more prosecutorial in nature, with a focus on penalty and not prevention.
  • Further, the CCLA will submit that context of this nature is an appropriate consideration for the purpose of section 1 analysis generally. The contextual approach forms a fundamental part of the proper inquiry into the nature of a statutory scheme's operation. An assessment of "chill" in a factual vacuum undermines the spirit and intent of the reasonable limit articulated in section 1.
  • More specifically, in freedom of expression cases, the CCLA will submit that this contextual inquiry is required.


On Severance of Fine Provision (requested by CHRC):

  • (contrary to the CHRC’s position) Severance is not an appropriate constitutional remedy in the circumstances of this case, and in freedom of expression cases more generally.
  • The CCLA will submit that severance of punitive provisions is generally not an appropriate remedy to correct the unconstitutionality of legislation which seeks to limit the right to free expression.
  • The "chill" on freedom of expression caused by the operation of sections 13 and 54(1) of the CHRA is not remedied by carving off the penalty provisions and refusing to apply them on a case-by-case basis.
  • The very existence of section 54(1) has coloured the underlying offence of hate messaging, making it more intrusive on free expression than originally envisioned by the Supreme Court in Taylor. The penalty provisions carry significant stigma, and by consequence, a "chilling effect" on free expression. This "chill" on speech captured by the scope of section 13 is not rectified by simply refusing to apply the penalty in specific cases.


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.


Warman Allegation


JRBooksonline Website


Stormfront Posting


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: 

[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.


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.

[See: Canadian "Human Rights" Censors file at the Federal Court of Canada to keep their precious censorship franchise]



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