Wednesday, June 2, 2010

SECTION 13 SERIES: A Sword not a Shield! The Aggressive Nature of Internet Censorship

For the next few weeks, I am going to run a series of articles on Section 13 of the Canadian Human Rights Act.  This is Canada’s shameful internet censorship legislation, where truth is no defence, intent is no defence, in fact, there are zero defences! Recently in the Lemire case, Section 13 has been found to be unconstitutional.  The censorship enforcers appealed to the Federal Court of Canada.

These articles on Section 13 will document all the different angles of Internet censorship and the threat it poses to freedom and liberty in Canada.

For a complete history on Section 13, please see this article: History of Section 13 Genesis of Section 13: From Taylor to “Terrorism”

Canada’s needs freedom of speech on the Internet, and the fanatical CHRC wants to silence thought and speech.  To date, they have spent millions to keep their censorship franchise running.  With the most recent ruling by the Canadian Human Rights Tribunal to stop all enforcement of Section 13 – Marc Lemire’s case is the only active Section 13 case in all of Canada!  Unfortunately, all the weight of the state censors will be brought to bear.

Please send what you can to assist in the Lemire case.   This will be the only challenge to internet censorship.  Your help is desperately needed.


NO SURRENDER!

-Marc Lemire






Part #1


SECTION 13:



A Sword not a Shield
The Aggressive Nature of the Censorship Enforcers


Section 13 is a quasi-criminal statute posing as “remedial” legislation.  From all sections of the entire Human Rights Act – Section 13 is the only section that people have been sent to jail for violating.  Harvey Goldberg, the CHRC’s senior policy advisor on Section 13 confirmed in the Lemire hearing that the only people ever to be found liable of contempt of a Tribunal order and sent to jail are those under Section 13. [1]

Canada’s human rights legislation was only envisioned as "remedial" in nature.  Remedial is defined by Princeton’s University’s online dictionary as “tending or intended to rectify or improve.[2] Therefore the Act is not meant to punish people like the Criminal Code does, but rather to remedy issues of purported discrimination.

A majority of the recent CHRC cases involve written material on the Internet that had long since been removed before any hearing at the Tribunal.  This means that the respondents in the cases have taken remedial steps to address a possible violation of Section 13, yet the CHRC continued to prosecute cases in order to punish and harass those they deem as thought criminals.

Many characteristics of Section 13 preclude its use in any remedial manner:

1.      There is no actual harm to a person required by section 13, by its very structure. Any person can lay a complaint claiming perceived potential “hatred or contempt.” Unlike a situation where a person has been denied services or employment, there is no incentive to negotiate solutions to the problem and quickly obtain relief;
2.      There is no limit on the number of complaints one person can file. As a result, for political reasons, people can become serial complainants about expression which no actual minority group members deem offensive enough to even complain about.  Section 13 in effect becomes a risk-free method of attacking political enemies and keeping them on the defensive.
3.      There is no cost to a complainant to lay a complaint and pursue it to a hearing, since the CHRC carries out the investigation and prosecutes the case before the CHRT. The complainant is called as a witness at the hearing and has all expenses paid.
4.      If the matter goes to the CHRT, the CHRC and complainant have the chance to have a large penalty imposed on the respondent as well as a permanent Cease and Desist order. Since the provision deals with speech, the CHRC and complainants want an order that will permanently silence the respondent and punish him for his “morally repugnant” views.
5.      The CHRC and complainant have only to establish a case on the balance of probabilities and there are no strict rules of evidence.
6.      There are no defenses of truth, fair comment or lack of intent to expose persons to hatred.
7.      Even if a respondent won at the CHRT — which only one has in the last 34 years — he cannot recover his costs from either the complainant or the CHRC. He must prepare his own defense, hire his own lawyer and appear at the hearing to protect his continued right to freedom of speech at his own cost.
8.      If the respondent chooses not to attend, the matter will continue in his absence in any event. Penalties and a Cease and Desist order will be imposed, even in the absence of any evidence of means to pay. CHRTs have held that the burden is on the respondent to prove he does not have the means to pay. Large fines are imposed even on extremely poor respondents such as Terry Tremaine, who have attended their hearings and given evidence as to their dire financial situations.
9.      The complainant is not required to attend the hearing. In the Lemire case, the complainant, Richard Warman, left the hearing after giving his testimony and did not return even though the hearing continued on for almost 25 more days. The case was carried by the CHRC — as has been done in virtually every Section 13 case.
10.  After the complaint is laid, if the respondent makes any disparaging remarks about the complainant or attempts to retaliate in any way, he becomes liable for paying extremely large awards of compensation to the complainant. In the Kyburz case, Richard Warman was awarded $30,000 in compensation, partly because Kyburz had “actively attempted to interfere with Mr. Warman’s employment, going so far as seeking to have him fired from his job.[3] Complainants, however, are completely free to attempt to have respondents fired from their employment.
For example, after Richard Warman filed his Section 13 complaint against Terry Tremaine, who taught with the Department of Mathematics and Statistics at the University of Saskatchewan. Warman sent a letter to Tremaine’s employer, the University of Saskatchewan, warning them that he would be going public and also going to the police.




 Richard Warman’s Letter to the University of Saskatchewan – obtained under Access to Information

In the April 11, 2005 letter, Richard Warman wrote:
“Given the seriousness of the alleged conduct, I wish to note that I will be making my concerns public and also forwarding them to the Saskatoon Police Service.  I will, however, refrain from forwarding this full documentation to anyone outside the University and the Police until 22 April 2005 to provide you with adequate time to prepare a response.”
Shortly after the university received the letter, Mr. Tremaine was fired.[4] 
If a respondent lays criminal charges against a complainant or even threatens to do so, this will also be considered retaliation and grounds for large compensation awards.[5]  Richard Warman has regularly laid criminal complaints against respondents after laying section 13 complaints, usually sending copies of the complaints to the police. He did so against Lemire, Harrison, Bahr, Tremaine, Beaumont, Donnelly and Kouba, to name just a few.
11.  Under section 59 of the CHRA, it is an offence, punishable by a fine not exceeding $50,000.00, to “threaten, intimidate or discriminate against an individual because that individual has made a complaint or given evidence or assisted in any way in respect of the initiation or prosecution of a complaint or other proceeding under this Part, or because that individual proposes to do so.” This means that the complainant and his witnesses and any other person who assists in his complaint are protected. But there is no protection whatsoever for a Section 13 respondent, his witnesses or assistants from such intimidation or threats.
For example, Paul Fromm, who has acted as an agent for several of the Section 13 respondents, has been both threatened and subject to intimidation by groups including thugs such as Anti-Racist Action. In 2006, the ARA held a demonstration outside Mr. Fromm’s house, yelling threats such as “We’ll be back and we’ll burn you out, you fucking Nazi!”  ARA broke up a fund-raising meeting for Lemire, held by Fromm’s group. ARA distributed flyers identifying Fromm as someone who was assisting respondents before the CHRT under section 13. Fromm, a witness in the Winnicki hearing, was followed from the hearing in an intimidating manner by ARA members, including Shane Ruttle Martinez. (whom the CHRC later paid as a witness in the BC White Pride case) 

The attack on Paul Fromm for his defence of Section 13 victims





ABOVEARA threatening Paul Fromm at his home – August 19, 2006.
Notice the sign that reads “DIE Nazi Scum

  

LEFT:  Police hold back ARA at Paul Fromm’s House
MIDDLEARA puts out slanderous leaflet in Mr. Fromm’s neighborhood


12.  Once a complaint is laid, the respondent is subject to the search of his home by CHRC investigators under warrants obtained ex parte using Section 43 of the Human Rights Act[6]. The use of force may be authorized by the warrant. The investigator can require the respondent or any individual therein to produce books and documents for inspection and copying. This includes making copies of computer hard drives. 
13.  If the respondent obstructs the investigator, he is subject to summary conviction under s. 60 of the CHRA and a fine of up to $50,000.00.
14.  Once a Cease and Desist order is obtained, the respondent is subject to it for the rest of his life, chilling his expression on any matter likely to lead to a contempt charge by either the complainant or the CHRC. Harvey Goldberg testified in the Lemire case that no person had ever been jailed for contempt of orders of the CHRT except those found liable under section 13.  Taylor was sentenced to two years in prison in total on two contempt charges. Others imprisoned were Wolfgang Droege, Tomasz Winnicki, Kenneth Barker and Gary Schipper. [7]

The procedures under the CHRA are premised on an idea of powerless complainants obtaining cheap and relatively quick remedies to employment or services situations where discrimination is allegedly being practiced by a powerful and wealthy employer or business. 

In non-section 13 cases, this is overwhelmingly the situation and can be seen simply by looking at the types of respondents complaints are laid against each year. Government departments, agencies, airlines, railroad companies and bands are not poor or powerless. The process of the CHRA is largely successful in providing remedies acceptable to both parties, as seen by the very low rates of complaints going to the CHRT and the very high success rate of mediation once the complaint is before it.


In summary, the data with respect to section 13 shows that complaints are not following this remedial path, but in fact are following a very different path. Only 4% of section 13 complaints in its thirty year history were settled at the CHRC stage. 

In that same time period, fully 68% of cases were referred to a hearing before the Canadian Human Rights Tribunal. To date, every single case that has been referred to the Tribunal has ended with a “conviction” along with a life time speech ban for the victim.





Case Studies:
Human Rights Act Remedial?


Remedial case study #1:  Marc Lemire
In March of 2004, Lemire received a Section 13 complaint over material that was on a message board he had shut down months earlier in January, 2004.  Even though the entire message board was shut down and removed, Mr. Lemire’s remedial actions were totally ignored and six years later, the case against Lemire was finally decided. The Tribunal has sat for 32 days, spread across five Canadian cities. Lemire was the only person ever acquitted of a Section 13 charge and Section 13 was found to be unconstitutional.

Remedial case study #2:  Melissa Guille
In 2004, Melissa Guille received a Section 13 complaint over material on her website and an associated message board.   As soon as she was notified of any material that was allegedly a violation of Section 13, she immediately remedied the situation and removed the material from the Internet.   Her remedial actions had zero effect, and she was subjected to a 13-day hearing into her conduct. On September 30th, 2008, Ms. Guille was found guilty of a violation of Section 13 and slapped with a lifetime gag order. [8]

Remedial case study #3:  Jason Ouwendyk
In 2006, Jason Ouwendyk received a Section 13 complaint over written material on the internet based on postings from November 2003 to the fall of 2005.  The website was removed in the fall of 2005, long before the CHRC even received the complaint (on March 28, 2006). Even though all the complained-of material was not available online, and thus fully remedied, the CHRC proceeded anyway with the case for another two years, and in September 2008, the Tribunal held a 4-day hearing into the matter. In March 2009, the Tribunal issued a cease and desist order against Mr. Ouwendyk, even tho it conceded that “there would not appear to be anything to remediate”, the Tribunal anyhow went ahead and issued the lifetime speech ban “to be on the safe side.[9]

Remedial case study #4:  Craig Harrison
In 2004, Mr. Harrison received a complaint for postings on the Freedomsite message board.  The message board was shut down before the complaint was received, and all postings by Harrison were no longer available on the Internet.  The CHRC proceeded with the case for an additional 2-and-a-half years.  On August 15, 2006, the Tribunal issued a lifetime gag order and a fine of $1,000 against Mr. Harrison. [10]

Remedial case study #5:  Alexan Kulbashian
In 2002, Mr. Kulbashian received a Section 13 complaint for written material on multiple websites. The websites at issue in that case were removed from the internet long before the time of the Tribunal hearing. The Tribunal made note of this fact in paragraph 6 of the decision: “The websites in question were no longer available on the Internet at the time of the hearing into the complaint.” Thus any complaint was fully remedied by Mr. Kulbashian as the material was no longer available. The CHRC proceeded anyway with the case for 4 years to punish Mr. Kulbashian.  His Tribunal hearing lasted a total of fifteen days.  On March 10 2006, the Tribunal found Mr. Kulbashian guilty, issued him a permanent gag order, along with $1,000 fine (and $5,000 in “special compensation”) [11]



CHRC: “NO Free Pass”   (Unless your a friend)

While the Canadian Human Rights Act was clearly envisioned as totally remedial and not meant to punish anyone, the CHRC practice is defined by their own words: “NO FREE PASS.

On September 15, 2008, a lawyer representing the Canadian Human Rights Commission told the Lemire tribunal that “No one gets a free pass” for an alleged violation of Section 13.

The September 16th, 2008 edition of the National Post reported that:

Mr. Hadjis (Tribunal chairperson) questioned whether it is fair, in general, to hold Web site owners accountable for what others may write in their comment sections, possibly without their knowledge, consent or endorsement.  He used the example of the CBC, which operates several chat forums for readers to discuss news stories, and asked what would happen if a hateful message somehow got past automatic filters and live editors.  Without commenting on the CBC directly, Ms. Blight (CHRC lawyer) said there is no "free pass" for anyone.” [12]

While this flies in the face of the Act and the Supreme Court’s clear ruling, it’s standard operating procedure at the Commission to punish those they don’t like.





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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.


My courageous lawyer Barbara Kulaszka and myself have demonstrated what two dedicated researchers can accomplish against overwhelming odds. We have single-handedly and doggedly fought the System and exposed the corrupt underbelly of the "Human Rights" Commission's fanatics. Nothing ever comes easy when you are fighting such a racket. This case is a seminal one, where the outcome will have serious implications on our right to think and speak freely in this country for generations to come. All Canadians will benefit if we manage to get this shameful law expunged from our legal books.

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.

I cannot carry on this important fight alone. Your donations literally equal the survival of this case.

I wish to thank all those that have donated to this worthy cause. Please donate directly to us so that I can send out a personal thank you. If you have donated to another organization or individual please contact me so I can thank you directly and send you a copy of our special booklet that is for our supporters only.

How you can help:



Support Marc Lemire's Constitutional Challenge

Be part of our team and contribute what you can to defeat this horrible law 
and protect Freedom of Speech in Canada !
 
·         Via Mail: Send Cheque or Money Order to:

Marc Lemire
152 Carlton Street 
PO Box 92545 
Toronto, Ontario 
M5A 2K1 
Canada




It’s time to end the censorship of the extremist Canadian Human Rights Commission!
 
Stop Section 13 of the Canadian Human Rights Act
 
 
 





REFERENCES


[1] Lemire CHRT Transcripts, Volume 24, Page 5366-5367 [June 26, 2007]
[3] CHRT Decision.  2003 CHRT 18.  Warman v. KyburzPara. 107.  http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=453&lg=_e&isruling=0
[4] Letter from Richard Warman dated April 11, 2005; And response from U. of Sask. Dated August 4, 2005 (LEMIRE Case evidence:  Exhibit R-1, Tab 8, p. 27-29)
[5] CHRT Decision.  2003 CHRT 18.  Warman v. KyburzPara. 77.  http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=453&lg=_e&isruling=0
[6] Section 43 - Canadian Human Rights Act. http://laws.justice.gc.ca/en/ShowFullDoc/cs/H-6///en
[7] Lemire CHRT Transcript. Vol. 24, p. 5367
[8] Warman v. Guille / CHA.  Tribunal case: T1089/7005 and T1090/7105. 
[9] Tribunal Decision: 2009 CHRT 10.  Richard Warman v. Northern Alliance and
Jason Ouwendyk
[10] Warman v. Harrison.  Tribunal case: T1072/5305.
[11] Warman v. Alexan Kulbashian, James Scott Richardson, Tri-City Skins.com, Canadian Ethnic Cleansing Team and Affordable Space.com.  Tribunal case:  T869/11903.  http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=661&lg=_e&isruling=0#1007450
[12] National Post: Sept 16, 2008. “Web expands hate speech law: expert.   Act now captures mainstream press, bloggers, tribunal member says”  http://www.nationalpost.com/todays_paper/story.html?id=793031