The Marc Lemire Internet Free Speech Case:
A Bitter Grudging Partial Victory in Lemire Case
In a long awaited decision in the Marc Lemire Internet case, Mr. Justice Mosley delivered his judgment on October 2, 2012. As has become clear, Judge Mosley should never have been seized with this case. He should have recused himself on the basis of a reasonable apprehension of bias. As a lawyer for the Department of Justice, he was the point man shepherding through amendments to various pieces of legislation, including Sec.13 of the Canadian Human Rights Act, which was now worded to specifically hand over control of the Internet to the Human Rights Commission thought police. He strongly assured MPs that this legislation was constitutional.
Now, wearing his since acquired judge's robes, he's being asked to rule that his baby is unconstitutional. Potential bias? Potential conflict? You bet.
Internet webmaster (The Freedomsite) Marc Lemire was one of Richard Warman's most prominent victims. He was hit with a complaint by Richard Warman in 2003 for postings on the Freedomsite. Then, began an eight year legal battle. Mr. Lemire not only fought the complaint on the merits but also challenged the constitutionality of Sec. 13.
Impressive evidence was introduced and witnesses led. The dirty tricks, or at least some of them, of the Canadian Human Rights Commission were exposed. We learned that the chief investigator or Internet "hate" a blind man named Dean Steacy put no weight on freedom of speech investigations as "free speech is an American concept." The very science on which Sec. 13 was based was challenged. The sorry history of Sec. 13 -- a 100% conviction rate -- was exposed.
On September 2, 2009, in a landmark decision Athanasios Hadjis essentially ruled Sec. 13 unconstitutional, albeit on annoyingly narrow grounds. In 1990, by a narrow 4-3 margin, the Supreme Court of Canada narrowly upheld the constitutionality of Sec. 13 on the basis that, while it did restrict free speech, it was essentially remedial, not punitive. However, in 1998, a range of fines and financial penalties was introduced.
On this basis, Mr. Hadjis acquitted Mr. Lemire on all but one charge -- an article about AIDS Secrets -- refused to apply a penalty and essentially declared Sec. 13 to be unconstitutional as it was no longer "remedial."
We'd have liked to have seen it thrown out on more substantial grounds; still, a victory is a victory. Within a month the Canadian Human Rights Commission sought judicial review (appeal) its humiliating defeat. After two years of legal jockeying and tens of thousands of dollars spent by those promoting free speech, the appeal was heard in Federal Court, December 13, 2011 by Judge Mosley.
On June 4, well before he rendered his decision, the House of Commons repealed Sec. 13. One might think the judge would simply deliver the coup de grace and put this totalitarian piece of repression out of its misery.
However, Judge Mosley saved his hobby horse. He maintained in the fact of all evidence that Sec. 13 was constitutional and an acceptable denial of free speech. However, the financial penalties are unconstitutional. Marc Lemire is to be sent back to the Tribunal for sentencing. And to add insult to injury, chronic complainer Richard Warman who chose to make this mischief is to be paid for writing his legal brief and for attending the appeal.
THIS COURT’S JUDGMENT is that:
1.The application for judicial review is granted and the matter is remitted to the Tribunal to;
a.issue a declaration that the publication of the article “AIDS Secrets” by the respondent Marc Lemire constituted a breach of s 13 of the Canadian Human Rights Act ; and
b.for determination of whether a remedy for the breach is to be imposed under ss 13 and 54(1)(a) and (b) of the Act;
2.It is declared that ss 54 (1) (c) and 54 (1.1) of the Canadian Human Rights Act are of no force or effect pursuant to s 52 (1) of The Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982, c. 11,1982;
3.The respondent Richard Warman is awarded costs for the preparation of his record and his out of pocket disbursements for attendance at the hearing against the respondent Marc Lemire.
The decision is rife with errors and I shall deal with just a few in this Part.
One of the key arguments advanced by Mr. Lemire was that the justification for Sec. 13 (and, indeed, for upholding the "hate law", Sec. 319 of the Criminal Code) that the Supreme Court bought in 1990 was based on bad science. Frankly, it was "theoretical" nonsense back then, but neuropsychology has made huge inroads and shown us how the human brain reacts. The science they accepted in 1990 is now junk. This is how it goes: the Canadian Charter of Rights and Freedoms is a smoke and mirror job of Indian giving. We are promised all these rights -- free speech, freedom of belief, etc. Then comes the weasel clause, "subject only to such restrictions as are demonstrably justified in a free and democratic society." Thus, if Parliament or a provincial legislature has a good goal in mind and, to achieve the goal restricts your rights, that's alright as long as the restrictions accomplish the goal and are not excessive.
In the case of Sec. 13, the Supreme Court accepted that "hate speech" had a bad effect on society. This was all based on a 1965 report by an obscure University of Toronto psychology professor Frederick Kaufman. He argued that minorities were made fearful by "hate speech", that they tended not to want to be themselves and that they withdrew from society and, at the extreme end, abused drugs or alcohol. This being so, Parliament, the Court held, was right to suppress "hate speech."
Common sense and every day observation tell us that that's not the way groups respond when they are criticized, even extravagantly. Professor Michael Persinger, led as an expert witness by Lemire and sank the scientific ship holding afloat the Supreme Court's justification of repression. Persinger testified that Kaufmann was wrong. On being confronted with "aversive stimuli" ("hate speech" is a loaded term, Persinger testified), minorities either scoff at the comments and reject them or become angry and want to argue or refute them. Neither reaction is a harm to society. In fact, both are positive. So, in fact, beyond a few wounded feelings "hate speech" causes no harm to society. There goes any justification for Sec. 13 This was a key argument.
The learned judge continued: "Lemire further questions the legitimacy of the finding in Taylor, that hate speech can cause substantial psychological stress, arguing that the Supreme Court relied not on expert evidence, such as he presented to the Tribunal, but on extrinsic research, to reach that conclusion.” (para 80)
And then further: " Chief Justice Dickson arrived at the same conclusion in Keegstra at paras 58 to 80. He stated at para 80:
 In my opinion, it would be impossible to deny that Parliament's objective in enacting s. 319(2) is of the utmost importance. Parliament has recognized the substantial harm that can flow from hate propaganda, and in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension in Canada has decided to suppress the willful promotion of hatred against identifiable groups. The nature of Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred (Jones, supra, per La Forest J., at pp. 299-300). Additionally, the international commitment to eradicate hate propaganda and the stress placed upon equality and multiculturalism in the Charter strongly buttress the importance of this objective. I consequently find that the first part of the test under s. 1 of the Charter is easily satisfied and that a powerfully convincing legislative objective exists such as to justify some limit on freedom of expression." (para 83)
The judge just ignores the unrefuted testimony of Dr. Persinger that the scientific account the Supreme Court accepted was simply bad science.
The judge will not let his legal baby go: "Notwithstanding the recent legislative effort to repeal s 13, I have no difficulty concluding that the objective of the enactment continues to be substantial and pressing." (para 87) Nonsense. So, as he sees it, Parliament was wrong.
Finally, Judge Mosley all but admits that the purpose of Sec. 13 is not to suppress "hate speech" but to silence a particular political ideology: "Apart from the technology, there is little to choose between Taylor’s callers and like-minded individuals looking for confirmation of their views on a white supremacist web site. And the suggestion that they are open to countervailing views can not be taken seriously."(para 94) The judge rejects evidence from several witnesses that the Internet is far more interactive and functions very differently from a telephone answering machine.
So, should this judgment stand, Marc Lemire would be assessed a penalty, likely a "cease and desist order", a lifetime gag, despite the fact that the law has been repealed by the House of Commons. Finally, Sec. 13, until its repeal is passed by the Senate, could, theoretically be used to persecute others with the temerity to criticize privileged minorities on the Internet. Yes, on the good side, the financial penalties are gone.
The Mosley decision MUST be appealed.
On October 30, Marc Lemire filed "Notice of Appeal."
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.
Please support Marc Lemire's Constitutional Challenge of Section 13 of the Canadian Human Rights Act.
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