Court of Appeals rules that Internet Censorship via Section 13 is great!
Court rules that (the now repealed) Section 13 is constitutional and even reinstated the penalty provision. Talk about a merry band of censors!
On Friday January 31st, 2014, the Federal Court of Appeals found that Section 13 of the Canadian “Human Rights” Act was constitutional, and that the penalty provision of the “Human Rights” Act was constitutional, and reinstated the penalty provision. This is yet another step in the 10+ year legal ordeal that I have had to endure, for posting a single article on my website – not written or approved by me – which allegedly offended privileged minorities. (See full Court of Appeals ruling here: http://www.canlii.org/en/ca/fca/doc/2014/2014fca18/2014fca18.html)
It was black Friday for freedom of speech on the internet. The courts are now so out of touch that they have upheld – and strengthened – a law which was repealed back in the summer of 2013!
“Human Rights” in Canada are a bizarre mix between Alice in Wonderland and The Wizard of Oz. They don’t make any sense; are selectively used against enemies and it’s all based on some imaginary smoke-and-mirrors bogey-man (pay NO attention to that man behind the curtain!).
Back in November, 2013, it was pretty clear from the opening of the hearing into Canada’s internet censorship laws that the Court of Appeal had little interest in protecting enshrined rights, such as freedom of speech. The three judges paraded into court, like they were descendants of Jesus himself, floating to their seats to preside over us little peons.
One of the judges immediately caught my eye – it was Justice Stratus! He was the judge which tossed out my request to stay the execution (lifetime speech ban)… err I mean … Human Rights hearing before the Canadian Human Rights Tribunal, until after the Court of Appeals ruled. In a snarky judgment, “Justice” Stratus tossed out my motion for a stay based on the irreparable harm that would come if the Tribunal ruled on my case before the Courts did. According to Justice Stratus, I had to document specific things I wanted to say – before I said them – so that he could determine if I could actually say them. Boy that’s some view of the Charter protected right to freedom of speech! (Ice-T has it right… Freedom of Speech; Just watch what you say [or submit it for pre-approval to the CHRC])
The hearing proceeded with lawyers from all sides making the case for, and against, Section 13 censorship. The judges seemed more preoccupied with looking at the clock or at the audience of a dozen or more freedom of speech supporters (as far as I could tell, not a single person appeared in court to support censorship). But that all changed when the distinctly non-African looking lawyers for the tax-payer funded African-Canadian Legal Clinic (ACLC) made their submissions. While they were limited to only 10 minutes, the court had no problem allowing them to speak for upwards of 30 minutes. The ACLC started off by saying that not only is Section 13 (internet censorship law) valid, but that the penalty provisions are really not penalties, but rather administrative remedies. No other party in the entire proceeding believed that the penalty provisions were even close to being constitutional.
A little background is needed here: The penalty provisions of the Canadian “Human Rights” Act allowed a Tribunal to do the following:
Legal history: Multiple Tribunal Members (pretend Judges) have openly questioned the penalty provisions and refused to apply them against individuals. In the Lemire case, Member Hadjis found the Penalty provisions were unconstitutional. In the Lemire case, the Federal Court of Canada also upheld that the penalty provision was unconstitutional.
Every single party in the Lemire Appeal hearing agreed that the Penalty provisions of the CHRA were unconstitutional … except for the ACLC. Even the Canadian Human Rights Commission has specifically said (on multiple occasions) that the Penalty provisions of the CHRA are unconstitutional and unjustified, and should be stuck out of the law books.
Bullsh*t baffles brains?
As a legal bystander, I could hardly follow all the spin legalese and baffle-gab of the “African-Canadian” Legal Clinic. Their submissions were that the Canadian Human Rights Act had penalties in S. 54, but these were not really penalties, but rather something else. I nicknamed it Penalties/non-“penalties”. And suddenly the judges were awake and furiously writing down every pearl of wisdom coming their way.
The reason why there was such a fight over the word “penalty” is because, back in the 1990’s the Supreme Court of Canada narrowly upheld the Canadian Human Rights Act because it was exclusively remedial. It was never meant to punish anyone – that’s the job of the Criminal Code – it was just meant to remediate past indiscretions, using the least amount of coercion possible. At the time the Supreme Court looked at Section 13, the only remedy available was a Cease and Desist order. There were no penalties (fines, etc). That all changed when Parliament added the penalty provision. So the real fight in the court was over the penalty provision / fines.
It is usually up to Parliament to write laws, but screw that… “Human Rights” are at stake! The Court of Appeal could just ignore the word penalty, and “interpret” it to mean something other than penalty. Perhaps they could just call it an “administrative remedy” or whatever. And using that logic, the court REINSTATED the Penalty provision, which multiple Tribunals and even the Federal Court of Canada earlier finding it to be unconstitutional.
So what’s this all mean?
The Court of Appeal has found that Canada’s internet censorship legislation (Section 13) and the penalty provision (Section 54) are constitutional. But Parliament has repealed Section 13 & Section 54 in 2013, so it has little actual effect. The Canadian Human Rights Tribunal has so far refused to hear any other cases, so it is unlikely any new Section 13 cases will ever go before it.
This ruling was the Justices of the Court showing how out of touch with society they really are. At best, this was the court trying to show how fanatically they are in favour of speech prohibitions. In their bizarre world, the court is signaling Parliament that speech prohibitions are A-OK with them, and if some other future government comes in (Liberal or NDP) and enacts something similar to Section 13; the Court would fully support the censorship. What ever happened to the courts being a bulwark against state control and repression? Seems like they have become nothing more than black robe; wig wearing; out of touch; pompous rubber stamps for totalitarianism.
In my particular case, the CHRC is not seeking a penalty against me anyways, so the fact that the Court reinstated the penalty provision doesn’t personally mean a thing.
What’s next for Lemire?
With the Court of Appeals decision, I have 60 days to either appeal to the Supreme Court of Canada, or return to the Canadian Human Rights Tribunal for a hearing to determine my “punishment”. The Tribunal could impose a lifetime speech ban on me.
How perverse is the Canadian Human Rights Act? I could face a lifetime speech ban, based on a law which was repealed in 2013!
Stay tuned, the battle for freedom continues.