Human Rights Commission's Attempt to Save Internet Censorship Law Is "Like Putting Lipstick on a Pig" -- Kulazska Says
TORONTO. December 13, 2011. The efforts by the fanatical Canadian Human Rights Commission to salvage Sec. 13 of the Canadian Human Rights Act (Internet censorship) was heard in Federal Court in Toronto today. The case involves Marc Lemire, webmaster of the Freedomsite. His lawyer Barbara Kulaszka opened her submissions by noting: "What I heard this morning was an attempt to put lipstick on a pig."
She added: "My friends are trying to convince you that all you have to do is sever the penalties and all will be well."
On September 2, 2009, Marc Lemire won a landmark decision, indeed, the only victim ever to win an Internet censorship case. He had challenged the constitutionality of Sec. 13 and won. Member (Judge) Athanasios Hadjis had ruled that 1998 amendments to the act -- imposing fines and financial penalties -- meant the law was no longer "remedial" and, thus, went beyond what the Supreme Court had upheld as constitutional, in 1990 in the Taylor case, when it ruled the old version of Sec. 13 which censored political messages on telephone answering machines.
"Sec. 13 is a violation of freedom of speech," she argued. The Internet is a different context from what this law was in 1977, when it was instituted or 1998 when penalties were added. "Taylor referred to a two minute message on a telephone. Now the whole world is on the Internet, every newspaper and all sorts of scholarly publications. If we don't have freedom of speech, we don't have anything."
Sec. 13 had a 100 per cent conviction record "worthy of the Soviet Union." The judge, Mr. Justice Richard Mosley, interrupted and told Miss Kulazska to "avoid hyperbole."
(See Flyer on the comparison between communism and the CHRC… is it really hyperbole?)
Once a complaint was laid, she argued, there is no defence -- not truth, not intent.
In arguing to salvage Sec. 13, the Commission's pricey outside counsel Margot Blight conceded that the penalties and fines were unconstitutional and would have to go. She as much as admitted there ware abuses and misdeed by Commission staff -- amply proven during the Lemire hearings. "Striking down the statute because of the activities of the Commission is draconian," she pleaded.
"The Tribunal concluded that the Commission didn't act in a sufficiently conciliatory fashion. The Commission referred the Lemire case to a Tribunal even though the impugned posts had been removed and it had declined Mr. Lemire's request for mediation." She sought the Court to remit the case back to the Tribunal for a decision on punishment on the sole count on which Mr. Lemire was found guilty -- a post by Kevin Alfred Strom on the dangers of AIDS and interracial sex.
Doug Christie, representing the Canadian Free Speech League, recalled: "On December 4, 1989, when I rose to speak in the Supreme Court in the Taylor case, I was all alone and there were 25 lawyers on the other side. Today, the sides are equal." It's dangerous, he argued, to disregard the many constitutional arguments made before the Tribunal. "We have raised other reasons why Sec. 13 is unconstitutional.”
Testimony before the Tribunal "showed that the Internet is a very different medium than telephone answering machines, there is the ability to reply or disregard the message." John Ross Taylor handed out business cards inviting people to call his message machine. Marc Lemire did no such thing, Mr. Christie explained. "There are millions of diverse blogs and websites on the Internet," he added. Back then there was only Mr. Taylor's voice asserting the truth. Now, on the Internet, there are many voices of refutation.
Complainant Richard Warman "presents himself as a victim, but he is a Nazi hunter," the Battling Barrister from Victoria insisted. "The message does not come to Mr. Warman. He finds it only after research." Mr. Christie added that the record shows that the Commission's expert witness Dr. Tsesis and Marc's expert neuropsychologist Dr. Michael Persinger both agreed that truth should be a defence; that truth is not hate. "Dr. Persinger said even hateful comments do not lead to violence.”
Mr. Christie argued that Member Hadjis's ruling was inadequate. He could have given better reasons.
Representing the Canadian Association for Free Expression, Ottawa lawyer Gerald Langlois, QC., insisted: "The Court should declare Sec. 13 unconstitutional… There is no effort in Sec. 13 to accommodate the right to free speech… the effect of Sec. 13 on free speech is dire," he added. Citing Madame Justice Beverley McLaughlin's dissent in Taylor -- she is now the Chief Justice of the Supreme Court -- Mr. Langlois argued that words like "hatred" and "contempt" and sketchy and vague. "I don't think there’s a person in this room who has not felt hate or contempt for someone. This law has made some groups more equal than others," has made some minorities privileged.
Mr. Langlois challenged the judge, "if you're not going to strike down Sec. 13 give us an overview and explain how Taylor can still stand."
Ed Morgan was the President of the Canadian Jewish Congress, 2004-2007 and is an Honorary Patron of the Canadian Somali Congress. Today he was representing the “African Canadian” Legal Clinic. "Sec. 13," he argued, "is a necessary part of equality and is a necessary tool to confront anti-Black racism." [Although not a single “African-Canadian” has ever used to law in the over 30 years since the law was introduced]
Joint spokesman for interveners the League for Human Rights of B'nai Brith and the Friends of the Simon Wiesenthal, Marvin Kurz admitted: “I have a bit of a red face. I failed to file my book of authorities," until this morning. He argued: "The problems of hate speech and anti-Semitism and the use of the Internet to spread these ideas is of pressing concern to the Government of Canada."
The judge interrupted, "but the Government of Canada is not here," as they had been during the Tribunal. Observers suggest this means the government does not really stand behind the legislation.
Serial complaint filer Richard Warman was the only lawyer not to be gowned. He asked for his costs. He supported the Commission's position and complained that mediation in Sec. 13 cases is difficult. "The respondents deny their views are hate but insist on disseminating their White Supremacist and Neo-Nazi beliefs over the Internet."
Andrew Loken representing the Canadian Civil Liberties Association supported Mr. Lemire and freedom of speech. Professor Richard Moon, appointed by the Canadian Human Rights Commission itself, did a study of Sec. 13 and recommended its repeal in 2008, he pointed out. "The penalties under Sec. 13 encourage litigiousness."
He too noted the failure of the Attorney General of Canada to intervene to support Sec. 13.
"The Internet," he explained, "is excellent for counter speech to make your voice heard. Counter speech persuades more people than the CHRT's orders," he added. "The optimistic assumptions in Taylor that Sec. 13 would be conciliatory did not work out." The record shows that the Commission has been anything but conciliatory in Sec. 13 cases. "The CHRC has sought penalties in most Sec. 13 cases."
Also intervening on Marc Lemire's behalf was Jason Gratl representing the British Columbia Civil Liberties Association. "It is not just permitted but required of the Tribunal to examine the effects of the legislation. Mr. Hadjis looked at the practical effect of the Act on those subjected to its decisions."
The Court was filled with supporters of freedom of speech. Many gathered around and congratulated Marc Lemire, Miss Kulazska, and Mr. Christie as the Court adjourned.
Mr. Justice Mosley reserved his decision.
Legal arguments from the Marc Lemire case before the Federal Court of Canada. Marc Lemire is the only Canadian in history to ever beat the Canadian Human Rights Commission and in Sept 2009 won his case when Section 13 of the Canadian Human Rights Act (Canada's shameful censorship legislation) was found to be unconstitutional. This booklet covers
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