Lemire Opposes the African-Canadian Legal Clinics Intervention to support Censorship
On May 19, 2010 the National Post ran an article on the African-Canadian Legal Clinic (ACLC) intervention submissions to the Federal Court of Canada.
The ACLC supports censorship and the notorious internet censorship law – Section 13 of the Canadian Human Rights Act.
The ACLC is a 100% tax-payer funded outfit, which surprisingly has a discriminatory membership policy. If you’re not an “African-Canadian” you are not able to join the organization. And they have the nerve to support censorship?
As an ultimate joke. The ACLC’s lawyer is Ed Morgan, former head of the Canadian Jewish Congress. While Mr. Morgan might be able to represent them in court, since he is Jewish, he is not actually able to join the organization with voting rights.
Welcome to politically correct Canada. I guess some discrimination is ok – as long as it’s their discrimination.
Here are the reply submissions which my wonderful lawyer – Barbara Kulaszka – filed with the Federal Court of Canada earlier today. It makes mincemeat of the “African-Canadian” supremacists and their absurd intervention application supporting censorship and the corrupt Canadian Human Rights Commission.
Court File No. T-1640-09
CANADIAN HUMAN RIGHTS COMMISSION
RICHARD WARMAN, ATTORNEY GENERAL OF Canada and
BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, CANADIAN CIVIL LIBERTIES
ASSOCIATION, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA,
CANADIAN JEWISH CONGRESS, and FRIENDS OF SIMON WIESENTHAL CENTRE
FOR HOLOCAUST STUDIES
OF THE RESPONDENT MARC LEMIRE
(May 25, 2010)
1. The African Canadian Legal Clinic ("ACLC"), a government funded legal clinic which serves and represents the African Canadian community, has made a motion to the Court for leave to intervene in this judicial review application pursuant to Rule 109 of the Federal Courts Rules. 1998. The initial motion failed to set out any grounds for the application but an amended Notice of Motion was served by fax on May 20,2010.
2. The judicial review application was brought by the Canadian Human Rights Commission ("CHRC") after a decision by the Canadian Human Rights Tribunal refusing to apply s. 13(1) and s. 54(1) and (1.1) of the Canadian Human Rights Act on the grounds that the provisions violated the right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms.
3. The issues raised in the Notice of Application of the CHRC are as follows:
a. the Tribunal erred in law when it found that the manner by which the CHRC exercises its statutory mandate could render section 13 of the Canadian Human Rights Act unconstitutional;
b. the Tribunal erred in law when it refused to apply section 13 of the Act because a refusal to apply subsections 54( 1)(c) and (1.1) would have provided a sufficient remedy in respect of this ground. [Notice of Application, Appendix A]
4. In para. 1 of its Memorandum of Fact and Law, the CHRC conceded that the penalty provisions contained in s. 54(1) (c) and (1.1) of the Act are unconstitutional.
5. The respondent Marc Lemire disputes these points and argues that the decision was in any event correct based on other grounds before the Tribunal and that s. 13(1) cannot be saved even if the penalty provisions are severed.
PART II - POINTS IN ISSUE
6. Has the proposed intervener met the test for intervention within the Federal Courts Rules, Rule 109
PART III - ARGUMENT
7. Rule 109 provides as follows:
(1) The Court may, on motion, grant leave to any person to intervene in a proceeding.
(2) Notice of a motion under subsection (1) shall
(a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposed intervener; and
(b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist the determination of afactual or legal issue related to the proceeding. [emphasis added]
8. The test for intervention under Rule 109 is set out in the case of Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd.,  F.C.J. No. 220 at paras. 8 and 9 [see ACLC Motion Record, Vol. 1, Tab 4-C]:
1) Is the proposed intervener directly affected by the outcome?
2) Does there exist a justiciable issue and a veritable public interest?
3) Is there an apparent lack of any other reasonable or efficient means to submit the question of the Court?
4) Is the position of the proposed intervener adequately defended by one of the parties to the case?
5) Are the interests of justice better served by the intervention of the proposed third party?
6) Can the Court hear and decide the cause on its merits without the proposed intervener?
7) Has the proposed intervener shown in the application how the proposed intervention "will assist the determination of a factual or legal issue related to the proceeding" as required by para. 2 of Rule 109?
9. It is submitted that the ACLC has failed to show how its intervention will assist in the determination of a factual or legal issue related to the proceeding as required by para. 2 of Rule 109 and as such its motion must fail. The onus is upon the ACLC to demonstrate that it has met the test for intervention. [Cupe, supra, para. 6]
10. Its proposed submissions, as set out in paras. 37 to 45 of its written submissions, do not relate to any issues in the judicial review. Instead, the ACLC provides only very vague and general proposed submissions relating to matters either not in issue or beyond the jurisdiction of the Court. It is submitted that these intended submissions completely fail to meet the requirements of Rule 109.
11. Examples are as follows:
a. The ACLC submits s. 13 should be preserved "albeit with some substantive and procedural modifications." (para. 37) These proposed modifications are not set out, nor is there any attempt to relate how this is relevant to the facts or legal issues raised in the judicial review. The onus is upon the ACLC to do so.
b. The ACLC proposes to make submissions on the need to preserve s. 13 with "recommendations on how the provision should be modified to align with the remedial focus of the Canadian Human Rights Act." (para. 38) The Court does not have jurisdiction to receive "recommendations" on the "modification" of legislation. Its jurisdiction is limited by s. 18.1(3) and (4) of the Federal Courts Act to determine legal and factual matters as set out therein.
c. The ACLC proposes to make submissions on the "inadequacy of the Criminal Code hate speech provision." (para. 40) The adequacy or inadequacy of the Criminal Code is not in issue in this judicial review.
d. The ACLC claims that the imposition of punitive sanctions under s. 13 engages s. 2(b) of the Charter and that "the issue at that point is whether these punitive measures are reasonable in a free and democratic society." (para. 42) In fact, there is no issue concerning this. The constitutionality of the punitive sanctions under s. 13, namely, s. 54(1) (c) and (1.1), are not in issue as the CHRC has conceded that the provisions are unconstitutional. In para. 1 of its Memorandum of Fact and Law, the CHRC stated that it "takes no issue with the Tribunal's refusal to apply the penalty clauses at sections 54(1)( c) and (1.1) of the CHRA on constitutional grounds." The issue before the Court is whether the doctrine of severability is applicable to save s. 13 by severing the penalty provisions. The ACLC has provided no arguments relevant to this issue.
e. The ACLC intends to make "submissions on suggested remedies and recommendations to ensure that s. 13 meets its civil remedial objective more effectively" such as "possibly .. .including internet service providers and others ... in the chain of delivery of the impugned communications." (paras. 44-45) Again, the jurisdiction of this Court is limited by s. 18.1 of the Federal Courts Act and unspecified "suggested remedies and recommendations" have no relevance to the determination of the factual and legal points in issue.
12. A judicial review is not a Royal Commission or Parliamentary Committee inquiry into the adequacy of laws against hate in Canada with a view to making amendments to the legislation. In those settings, "submissions on suggested remedies and recommendations to ensure that s. 13 meets its civil remedial objective more effectively" may be made to legislators but such submissions have no relevance to the legal issues to be decided in this judicial review application before the Court.
13. This Court has no power to preserve s. 13 "with some substantive and procedural modifications" as proposed by the ACLC. Its jurisdiction is limited to reviewing the decision of the Tribunal to determine whether it has acted contrary to law.
14. With respect to the constitutionality of the penalty provisions of s. 13, the ACLC is attempting to make submissions on a point of law that is not in issue in this application.
15. Because its intended submissions have no relevance to the legal or factual issues in the application, as required by Rule 109(2), it is submitted that the ACLC also fails to meet any of the other elements in the test set out in CUPE, supra.
PART IV - ORDER REQUESTED
16. The respondent Marc Lemire requests that the motion for intervention by the ACLC be dismissed.
I Desperately need your help to continue
Fighting the fanatics at the Canadian "Human Rights" Commission and defending freedom of speech for ALL Canadians is not an easy task. In particular, the Federal Court of Canada challenge has consumed a lot of time and resources. This has meant sacrificing a lot of cherished things in my life that I used to take for granted such as spending precious time with my children. It's also very costly and has incurred heavy debts given that I'm facing a "Human Rights" juggernaut that has a limitless budget. It has already spent millions and is prepared to spend a lot more of your tax dollars to keep their thought control machine running.
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Every victory we've attained against the "Human Rights" juggernaut has come at great expense. Nothing has come easy. In fact, the “Human Rights” Commission has done everything in their power to stop exposure of their twisted censorship agenda.
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