CCLA & CAFE Granted Intervener Status for Federal Court of Appeals review of Internet Censorship Law
[APRIL 29, 2013] The Federal Court of Appeals has granted Intervener status to the Canadian Civil Liberties Association [CCLA] and the Canadian Association for Free Expression [CAFE]. Both groups are intervening in support of freedom of speech and seeking to have Canada’s notorious internet censorship provision – Section 13 of the Canadian Human Rights Act – struck down as an unconstitutional abridgement to our Charter rights of Freedom of Expression.
Here is a copy of the courts decision:
The Canadian Civil Liberties Association is one of Canada’s premier organizations protecting freedom of speech. According to the Affidavit of Cara Zwibel, the CCLA was “Founded in 1964, the CCLA is a national organization dedicated to the furtherance of civil liberties in Canada … As a staunch defender of freedom of expression, the CCLA has made submissions and provided advice on a range of issues to various levels of government.”
The CCLA submissions specifically address two key points in their submissions:
1. The CHRT must have the ability to examine the manner in which section 13 is administered generally as part of a proper contextual analysis under section 1 of the Charter.
2. Severance is not an appropriate constitutional remedy in the circumstances of this case, and in freedom of expression cases more generally.
Select submissions of the CCLA
17. As a component of the constitutional analysis, the CHRT considered evidence that respondents to section 13 complaints do not experience a conciliatory, preventative, and remedial process. Rather, the process is more prosecutorial in nature, with a focus on penalty and not prevention
19. The CCLA will submit that the Court’s conclusion in this respect constitutes an error of law. The CHRT has the jurisdiction to consider a constitutional challenge to its constating legislation. In fact, administrative tribunals are often in the best position to hear such challenges at first instance.25 Where administrative decision makers have explicit jurisdiction to consider constitutional challenges to their constating legislation, they must be permitted to conduct a full and comprehensive section 1 analysis.
20. A full and comprehensive section 1 analysis includes an assessment of the effect of the legislation. In the context of this case, the CHRT’s considerations addressed the heart of the Supreme Court’s finding in Taylor. An exploration of how the functioning of the scheme is experienced by respondents is a necessary component of an assessment of the chilling effect of the legislative restriction, particularly as it relates to future speakers.
21. Looking behind the text of the provisions was also required to assess whether the monetary penalty was administrative or punitive in nature. An understanding of the manner in which respondents experience the statutory scheme is highly probative and may tip the balance towards a more punitive interpretation. Again, this understanding is crucial to the section 1 analysis.
25. The “chill” on freedom of expression caused by the operation of sections 13 and 54(1)(c) and (1.1) of the CHRA is not remedied by carving off the penalty provisions and declaring them of no force and effect.
26. The very existence of section 54(1)(c) has coloured the underlying offence of hate messaging, making it more intrusive on free expression than originally envisioned by the Supreme Court in Taylor. The penalty provisions carry significant stigma, and by consequence, a “chilling effect” on free expression. This “chill” on speech captured by the scope of section 13 is not rectified by severing sections 54(1)(c) and (1.1).
30. The CCLA will submit that in the context of freedom of expression cases more generally, severance often serves to keep impugned statutory components “on the books” and thus contributes to an ongoing chill on free expression, undermining the attempt bring the statutory scheme on-side of the Charter.
Canadian Association for Free Expression
The Canadian Association for Free Expression has been an intervener for freedom since the very beginning of the Lemire case. Both in front of the Canadian Human Rights Commission and before the Federal Court, CAFE has been steadfastly against censorship laws.
The main points which CAFE wants to address with the Federal Court of Appeals are:
1. CAFE will submit that based upon the expert testimony of Dr. Michael Persinger given before Member Hadjis of the CHRT that the foundation of s.13 was based upon correlational analysis by Dr. Harry Kaufmann contained in the Cohen Commission Report (cited by the Supreme Court of Canada in Taylor) and was not based upon empirical studies.
3. Empirical evidence established by modern cognitive neuropsychology casts doubt upon the negative effects of "hate propaganda" proposed by Dr. Harry Kaufmann making his conclusions on the subject unverifiable. There is also no scientific evidence that "hate propaganda" makes minorities afraid, deters them from full participation in society and makes them doubt themselves, such that the legislative justification for s.13 is now entirely questionable.
4. The Taylor case did not anticipate cognitive neuropsychology research and series that have resulted in a greater understanding of the effects of "hate propaganda" upon individuals and groups in Canada. The 1966 Cohen Committee Report on "hate propaganda" on which reliance was placed by the court in Taylor requires re-examination in light of modern psychological theory and empirical data not available in 1966 and only beginning to be understood when Taylor was decided.
[See the full expert report of Dr. Michael Persinger,
who was called as an Expert witness by Marc Lemire]
Background to Lemire case:
In 2003, serial plaintiff Richard Warman filed a Section 13 complaint against Marc Lemire for hundreds of postings on the Freedomsite & its message board. None of the initial posting complained about were written or approved by Marc Lemire, but because he was the webmaster of the message board, the CHRC has prosecuted him for 10+ years now.
In 2005, Lemire challenged the constitutionality of Section 13 and 54 of the Canadian Human Rights Act as an egregious censorship provision severely limiting freedom of speech and thought. Section 13 of the Canadian Human Rights Act is Canada's shameful internet censorship provision.
Section 13 makes it an offence to "likely" "expose" privileged groups to "hatred and/or contempt." There are NO defences under Section 13! Even truth and intent are considered irrelevant to a finding of discrimination.
The law was enacted in 1977 in order to silence a man named John Ross Taylor for messages he recorded onto his telephone answering machine. In the intervening 30+ years, not a single person who has been hauled up on Section 13 charges has ever been acquitted - a 100% conviction rate.
Mainstream media outlets, from Victoria to Halifax, have demanded a repeal of Section 13 and denounced the human rights industry. Editorials commonly refer to the Tribunal as a "kangaroo court," and highlight how 'human rights' commissions "threaten our liberty."
The case against Lemire dragged on for 10 years before the Canadian Human Rights Tribunal, and before the Federal Court of Canada, where the CHRC was forced to admit they spy on Canadian and American websites. [Some have called this entrapment!]
Since Marc Lemire and his courageous lawyer Barbara Kulaszka went to work, the entire landscape of Section 13 censorship has changed. On Sept 2, 2009, the Human Rights Tribunal fully acquitted Marc Lemire, and refused to apply Section 13 due to its unconstitutional provisions.
The case is currently before the Federal Court of Appeals. [more info]
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.
Please support Marc Lemire's Constitutional Challenge of Section 13 of the Canadian Human Rights Act.
Marc Lemire is the only person to beat the CHRC in it's 33 year history!
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