TO: Canadian Human Rights Tribunal,
Re: Warman v. Lemire, Tribunal No. T1073/5405
To the Tribunal:
I have the submissions of
12 to clarify one issue. We were also seeking a directive
13 that a description of the witnesses not be --
14 THE CHAIRPERSON: Descriptions.
16 indicated in our motion, of some of these things making
17 their way onto the internet.
18 THE CHAIRPERSON: Is that essential?
19 I don't even know if I have authority to issue a
20 direction like that.
21 Can you find for me something in a
22 statute where I can issue an authority telling a person
23 what they can and cannot write about afterwards?
25 is in 52. It is the preamble to 52, which states that
1 the member or panel conducting the inquiry may take any
2 measure and make any order that the member or panel
3 considers necessary to ensure the confidentiality of
4 the inquiry.
5 This is a directive to the parties.
6 You could order an in camera hearing,
7 and nothing would go out to the world.
8 THE CHAIRPERSON: Yes, because it's
9 in camera. Because it's within my confines.
11 parties to an in camera hearing couldn't go outside and
12 disclose what took place, either --
13 THE CHAIRPERSON: That's true.
15 same sense what we are asking.
16 It is very limited: No description
17 of the visual appearance.
18 THE CHAIRPERSON: Can I have an
20 someplace what these people look like?
22 is virtually unenforceable. Unless there is something
23 very, very different about these two people --
24 She is blonde. She is five-foot-six.
1 five-foot-six. I don't know how tall
2 It is unenforceable.
3 THE CHAIRPERSON: It is. It is
4 almost making a travesty of my process. I will not
5 issue that kind of directive. I'm sorry.
6 They probably never thought about it
7 until you mentioned it. Now, watch, they are going to
8 write up, "Blonde, five-foot-six." They never would
9 have thought to put that in.
10 There is no indication that any of
11 these individuals have done anything like that. The
12 only photos that we have from this hearing,
13 Dufresne, are of themselves, calling themselves the big
14 defence team.
15 We need some context.
16 I am prepared to go this far because
17 of the bigger picture that you have raised, although
19 which I hear him on.
20 I am going that far, but please --
22 remind you that there are photos of judges and members
23 of the Tribunal --
24 THE CHAIRPERSON: Yes, there are.
2 THE CHAIRPERSON:
3 more exposed here with the allegations that have been
4 made in your motion? You and I and all of the other
5 members of the Tribunal.
6 And we haven't been immune. I read
7 that article. The article went right to the core of
8 what is going on in this room -- that little story, the
9 fictional one. But yet we move on, we go on.
11 Chair, we are prepared to proceed with, essentially,
12 two of the requests that we made, the in camera and the
13 measures with respect to cameras.
14 I want to state for the record that,
15 while all of our requests have not been addressed, the
16 Commission takes the security of its staff very
17 seriously. Unlike Commission counsel, who, by the
18 nature of their work, are going to be exposed to public
19 scrutiny, Commission investigators do not have similar
21 As a result, we have taken a strong
22 position on that, but we accept the Tribunal's ruling
23 on that basis.
At that point, I requested that the Commission rescind its certification under s. 37 of the Canada Evidence Act which the Commission had served the previous day with respect to the visual appearance of the witnesses at p. 4401:
3 their section 37 certification for the record?
4 THE CHAIRPERSON: On the assumption
5 that we are proceeding on that basis?
7 the purpose of their testimony, but we reserve our
8 right to invoke it for questions.
The Commission withdrew its section 37 CEA objection and accepted the ruling of the Tribunal refusing to make an order banning persons present from writing a description of the witnesses.
The Commission now renews this request for such an order. It is respectfully submitted that it has brought no new arguments about how this order would be enforceable or whether this Tribunal has such jurisdiction outside the confines of the hearing room.
Further, it provided evidence of only two threads from Stormfront message board where the fact that
The fact is that in the Internet community,
The Commission produces evidence (minus the URL and any identifying markers which should have been on the bottom of each page) of one poster on a message board who is obviously angry. If this is all it takes to exclude the public from a hearing dealing with matters going to the fundamental constitutional rights of Canadians on the Internet, then there is every reason for persons to assume false identities to post up threats.
This Tribunal has consistently upheld the principle that its hearings must be open to the public, even in extremely personal and sensitive cases such as sexual harassment. In Bouvier v.
Metro Express, 1992 CanLII 1429 (C.H.R.T.), the Tribunal held, in response for a request that a hearing be held in camera:
One final point of a procedural nature should be noted before we
proceed. At the beginning of the hearing, counsel for Loomis asked that
the matter be heard in camera. Counsel for the Commission had no objection
to this request, nor did the respondent Lacroix. The Act does permit a
tribunal to order that a hearing be in camera, as follows:
Sec. 52. A hearing of a Tribunal shall be public, but a Tribunal may
exclude members of the public during the whole or any part of a
hearing if it considers that exclusion to be in the public interest.
In view of how important it is that the judicial process in our
society be public, and particularly in the area of human rights where the
educational aspect of the process plays a leading role, and in view of the
decisions in Attorney General of Nova Scotia v.
175 and Edmonton Journal v.
request by Loomis that the hearing be held in camera. As
for even the intimate and delicate details of their marital life to be
But in addition to the interest of the public at large in an open
court process there may be compelling arguments in its favour related
to the interests of litigants generally.
the public airing of the injustices they feel they have suffered alone
and without any support in the community. Indeed, this may be the
first time that a spouse is able to speak openly about events that
have taken place in the privacy of the home. They may welcome the
public endorsement for what they have suffered in private ignominy.
What is being revealed here is shocking and goes to the root of the findings in many Tribunal decisions in cases brought by Richard Warman.
The Tribunal must not underestimate the implications of the disclosure which has already been made.
This evidence, to preserve the integrity of this Tribunal, must be heard in public.