Judge makes multiple errors and fails to mention he was a key player at DoJ who passed legislation which applied Section 13 to the internet!
OCTOBER 30, 2012: Cutting through post-hurricane Sandy’s driving rain, Marc Lemire filed his landmark appeal to the Federal Court of Appeals, challenging the bizarre ruling of Mr. Justice Mosley.
This appeal takes the question of the constitutionality of Section 13 to the Court of Appeals and questions several aspects of the Federal Court Judge’s decision. This Appeal is a damning critique of censorship and thought control which lay at the feet of Section 13 of the Canadian Human Rights Act – Canada’s shameful and thoroughly discredited internet censorship legislation.
Marc Lemire’s 8+ Year Legal Ordeal
For those trying to keep track of Marc Lemire’s on-going legal ordeal, here is a brief rundown on what has happened. In 2003, serial plaintiff Richard Warman filed a Section 13 complaint against Marc Lemire for postings on a message board he ran, and 1 post on his website – The Freedomsite. Lemire removed the entire message board before receiving Warman’s complaint, and removed the single posting as soon as he received the complaint. (posting entitled “Aids Secrets” – written by an American). Since Lemire removed the material, and undertook never to re-post it, that should have been the end of the case – since the Canadian Human Rights Act is a completely remedial piece of legislation (IE: not meant to punish anyone)
Well, the Canadian Human Rights Commission had a different idea of what “remedial” means, and the CHRC went on a fishing expedition to try to find anything else to prosecute Lemire with. The CHRC found a few documents, and Warman submitted a website he claimed Lemire operated. When Warman submitted the website, he also asked the CHRC to hide this from Lemire – which the CHRC promptly did. In the interim, CHRC staffers signed up on message boards such as Stormfront,org and attempted to engage (entrap?!) Lemire in conversation, using an alias known as “Jadewarr”.
Notwithstanding the fact that Lemire remediated all complained of material, the CHRC arrogantly pushed on, and a Tribunal was setup to investigate Lemire and the hundreds of absurd claims of "hate speech" being made against him. As part of his defence, Lemire questioned the constitutional validity of Section 13 of the Human Rights Act.
The Tribunal hearing spanned years and finally in 2009 the Canadian Human Rights Tribunal threw out almost the entire case against Lemire. The Tribunal ruled against every single alleged “hate” message Lemire was accused of; except for one. The Tribunal also found that Section 13 and 54 of the Canadian Human Rights Act was unconstitutional.
The censors were not happy with that, and in 2009 (yes three years ago!!) the CHRC appealed to the Federal Court of Canada seeking a judicial review of the decision of the Canadian Human Rights Tribunal.
With the constitutionality of Section 13 now seriously in question, the Canadian Human Rights Tribunal stopped all enforcement of Section 13 and put on hold the cases which were before it (Arthur Topham, Henry Makow, etc) until a final decision in the Lemire case. Also while waiting for the Federal Court to rule, the Parliament of Canada passed Bill C-304, which when it passes the Senate will repeal Section 13 of the Canadian Human Rights Act. (Currently at Second reading in the Senate of Canada)
In early October, 2012, the Federal Court – after taking three years – finally ruled. The court found that Section 13 of the Canadian Human Right Act was just fine but the penalty provision of the law was unconstitutional. Therefore the Federal Court stuck down Section 54 of the Human Rights Act, but left Section 13 intact.
That’s where we are now. If Lemire chose not to appeal, the other cases which were halted awaiting a final decision would be activated, and the victims would have been dragged before the Canadian Human Rights Tribunal, and in some other cases, the Federal Court.
Federal Court Ruling by Mosley
The ruling by Liberal Appointee – Justice Richard Mosley is at times head scratching and at other times in error. On the head scratching side, the Judge could not even get the correct date of the Tribunal’s decision. In Mosley's decision, he claimed the decision date was “September 9, 2009”, when in fact, the Tribunal ruled on September 2, 2009.
The Judge mixes up and totally confuses the history of Section 13 and how the penalty provisions were adopted. And his confusion of the law was then used as reasons to justify Section 13 at a later point.
In one of the more strange errors, Justice Mosley overturned finding of fact which the Tribunal made with respect to mediation (or lack of mediation) which took place in the Lemire case. From day 1, Marc Lemire tried to mediate the case which clearly follows the principles of the Canadian Human Rights Act. All of Lemire's requests for mediation seemed to fall on deaf ears. Mosley in his decision totally gets it all wrong, and by a misreading of what happened on mediation, comes to an erroneous conclusion.
One of the major submissions to the Appeals court, will be the errors which Lemire alleges Justice Mosley made when looking at the historical amendments to Section 13 of the Canadian Human Rights Act. Among the amendment that Mosley looked at was the 2001 amendment to Section 13, which was buried in Canada's so-called "Anti-Terrorism" legislation, which expanded the censorship powers of the CHRC to the internet and even to all interconnected computer networks. When Section 13 was first passed in the late 1970’s, Section 13 only applied to the limited aspects of a telephone answering machine. In 1990, the Supreme Court of Canada looked at Section 13 and how it applied to Telephone answering machines only, and even with that limited range of speech that was censored, the SCC narrowly upheld Section 13 as constitutional by the slimmest of majorities - a 4-3 ruling (Interesting side note: Justice Beverley McLachlin was the author of the 3 person dissent and wanted to strike down Section 13. McLachlin is now the Chief Justice of the Supreme Court) . Because of the vast quantity of information available on the Internet, it comprises an integral component to the Lemire constitutional challenge.
And guess who was a key decision maker and “point man” for the “Anti-Terrorism Act”? The same Act, which extended CHRC censorship to the Internet? The one and only; Justice Richard Mosley.
In 2001, Justice Richard Mosley was the associate deputy minister for criminal law at the Department of Justice. During his time as deputy minister, he was the “point man” for the “Anti-Terrorism Act”. Mosley defended the legislation at every occassion, including multiple press conferences and even before Parliament. As Macleans reported “... speaking at a press briefing around the same time, Mosley didn't hesitate to dismiss concerns raised by reporters that the new law could violate civil liberties.”
One of the main arguments against Section 13’s constitutionality is that it now applies it's censorship regime to the Internet; the most interactive and inclusive communications medium the world has ever known. Because of the Internet's liberating framework, it has become one of the main pillars of the Lemire Constitutional Challenge. And also raised as a critical issue by the Canadian Civil Liberties Association, the BC Civil Liberties Association, and the Canadian Free Speech League.
Is it really any wonder that Judge Mosley completely ignored all our submissions and in his ruling retorted with this dismissive one line answer: “As found by the Tribunal at para 231 of the decision, the conclusion in Taylor on rational connection to the legislative objective still applies. I am of the same view.”
Keep in mind; the application of Section 13 to the Internet was part of HIS legislation (Anti-Terrorism Act). An Act which HE defended to the media and in front of a Parliamentary sub-committee. And it was Mosley that so quickly dismissed concerns about civil liberties over the so-called Anti-Terrorism Act.
Considering that Judge Mosley was a critical player and the “front man” for the 2001 amendments to Section 13 – doesn't it raise the question of a fair hearing or even a claim of reasonable apprehension of bias? How can justice be served (and seen to be served) when a Judge sits in judgment over the very legislation that HE was so closely associated with, defended, justified and sold to Canadians? Justice Mosley should have identified to the parties his role in the founding of the legislation, and then stepped aside and allowed another Judge to sit in review this important case.
In Canada, justice must be transparent and be seen to be transparent. It is quite possible that a reasonable person who attended the hearing (where Mosley was intolerant and dismissive of Lemire's lawyer - Barbara Kulaszka), or followed the live blog of it on the internet, or even read about the exchange between Mosley and Kulasza on the front page of the National Post; and now knowing the background of Justice Mosley and the "Anti-Terrorism Act" could take a grim view of the whole process, which tends to bring the administration of justice into disrepute.
Lemire Appeal to the Federal Court of Appeals
THE APPELLANT APPEALS to the Federal Court of Appeal from the judgment of Mr. Justice Richard Mosley of the Federal Court dated October 2, 2012 in which he allowed the application by the Canadian Human Rights Commission for judicial review of the decision of the Canadian Human Rights Tribunal dated September 2, 2009 [2009 CHRT 26] in the matter of a complaint by Richard Warman against Marc Lemire under section 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“Canadian Human Rights Act”).
THE APPELLANT ASKS that:
- The appeal is allowed and the decision of the Federal Court set aside;
- This Honourable Court declare that sections 13 and 54 (1) and (1.1) of the Canadian Human Rights Act are a violation of subsections 2 (b) of the Canadian Charter of Rights and Freedoms , are not saved by section 1 thereof, and as such, are of no force or effect pursuant to sections 24 (1) and 52(1) of the Constitution Act, 1982;
- An order dismissing the complaint against the appellant by Richard Warman under s. 13 of the Canadian Human Rights Act;
- An order staying the judgment of Mr. Justice Mosley until the final determination of this appeal;
- An order for costs to the appellant of this appeal and below;
- Such further and other order as this Honourable Court may make.
THE GROUNDS OF APPEAL are as follows:
1. Mr. Justice Mosley erred in applying the doctrine of severance in upholding s. 13 and ss. 54(1)(a) and (b) of the Canadian Human Rights Act;
2. Mr. Justice Mosley erred in basing his decision on a misreading of the Canadian Human Rights Act as it existed at the time s. 13 was upheld as a reasonable limit on freedom of expression under s. 1 of the Canadian Charter of Rights and Freedoms by the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor,  3 S.C.R. 892; this misreading of the Act informed the reasons given by Mr. Justice Mosley and led him into further error in upholding the constitutionality of s. 13 and 54(1)(a) and (b) of the Canadian Human Rights Act;
3. Pursuant to s. 50(2) of the Canadian Human Rights Act; the Tribunal was entitled to examine the real and factual context in which s. 13 and s. 54 existed in determining whether the provisions remained a reasonable limit on freedom of expression within the meaning of s. 1 of the Charter, including the manner in which complaints were prosecuted and the practical operation of the statutory scheme. The decision of the Tribunal that this evidence showed that ss. 13 and 54 were no longer a reasonable limit on freedom of expression was correct;
4. The extension in 2001 in the Anti- Terrorism Act, S.C. 2001, c. 41 of the application of s. 13 of the Canadian Human Rights Act from telephone answering machines, as considered in Taylor, to computer networks, including the Internet, has rendered s. 13 an unreasonable and unjustifiable limit on freedom of expression within the meaning of s. 1 of the Charter;
5. The allegation of “hatred” in s. 13 of the Act imports moral blameworthiness and stigma which renders the provision an unreasonable and unjustifiable limit on freedom of expression pursuant to s. 1 of the Charter;
6. The words “hatred” and “contempt” in s. 13 are vague, overbroad and highly subjective, rendering the provision an unreasonable and unjustifiable limit on freedom of expression within the meaning of s. 1 of the Charter;
7. There is no rational, non-arbitrary or fair connection between s. 13 and the objectives of the Canadian Human Rights Act, rendering the provision an unreasonable and unjustifiable limit on freedom of expression within the meaning of s. 1 of the Charter;
8. Mr. Justice Mosley erred in challenging and reversing findings of fact made by the Tribunal to which he owed deference;
9. Mr. Justice Mosley erred in failing to respect and defer to Parliament’s repeal of s. 13 and s. 54(1) and (1.1) in Bill C-304, which passed the House of Commons on June 6, 2012 to protect freedom of expression;
Can I count on you to support the cause of freedom and rid Canada of this disgusting though control legislation? My courageous lawyer Barbara Kulaszka and I have demonstrated what two dedicated freedom fighters 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 racket. Nothing ever comes easy when you are fighting such fanatical censors. 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 when we manage to get this shameful law expunged from our legal books.
I cannot carry on this important fight alone. Your donations literally equal the survival of this case. No organizations are assisting with the bill at all.
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