Mr. Fothergill then reviewed extensively the testimony of Dr. Karen Mock about the purported effects of “hate speech.” He repeated her charge that the Internet was the medium of choice for “hate” groups. Fothergill repeated Mock’s assertion that she had “witnessed children of Holocaust survivors being driven to tears and actually shaking when reading material denying the Holocaust.”
The Internet allows “hate” groups to coalesce and reinforce each others beliefs,” he stated, apparently targetting non-violent political organizing by dissidents.
Mr. Fothergill insisted that there was a “long term erosion” of civility as a result of “hate speech.” He was relying on Dr. Alexander Thesis’ testimony on “destructive social movements” like German anti-Semitism and slavery in the U.S. “Hate speech was necessary to maintain the view that these groups were less deserving of rights and protection,” in Dr. Thesis’s views.
He continued to argue that “hate speech” could lead to discrimination in employment for those who dress differently, although none of the recent parade of victims of Sec. 13 are employers of any sort.
“There are excerpts from the Bible that can expose people to hatred or contempt and the Tribunal has dealt with that,” Mr. Fothergill stated, apparently defending Tribunal Vice Chairman Hadjis’s ruling in the Warman v. Jessica Beaumont case where she was condemned for citing two passages from Leviticus in support of her critique of same sex marriage.
“Commission counsel must be even handed,” Mr. Fothergill stated, despite the fact that most victims have been unrepresented by counsel and the Commission has vigorously opposed efforts by Paul Fromm in Warman v Glen Bahr and Western Canada for Us to get the Commission, following the Supreme Court’s decision in R v Okanagan Band, to provide legal aid to an impecunious respondent where the potential loss of their rights is at issue.
“We have a lot of legal safeguards,” Mr. Fothergill insisted, under the Canadian Human Rights Act, although poor victims have no right to legal aid.
Mr. Hadjis interrupted, quoting Mr. Warman’s evidence “even if you apologize and mend your conduct, you do not get a free pass.,” to ask whether Sec. 54 (fines) “imposed by recent Tribunals even when the postings are down, are a punishment, are they not? It’s punishment, isn’t it?”
Mr. Fothergill said penalties are reserved for “most hardcore people unwilling to change their ways.”
“That’s not been our criteria,” Mr. Hadjis argued.
“These proceedings may be burdensome but they’re not criminal,” Mr. Fothergill retorted.
“What’s key to the Taylor proportionality test is that Sec. 13 is a ‘remedial legislation.’ That’s the spirit of what Taylor talks about. But we've had played out since that Taylor, is that penalties have been asked for and have been awarded, except in one case [Richard Warman v Eldon Warman], where the member himself questioned the fine and the Commission withdrew its request,” Mr. Hadjis argued. In that case, the Member wondered how he could impose a heavy fine when a criminal court had imposed only a $1,000 fine on Chief David Ahenakew in a Sec. 319 Criminal Code prosecution.
“And,” he continued, “in Taylor, Mr. Justice Dickson said, ‘don’t worry, Sec. 13.1 is just remedial and conciliatory,’ and, yet, all we have in these cases are calls for fines and they are awarded, ‘on the balance of probabilities?’”
“But the process offers many less drastic forms of redress,” answered Mr. Fothergill.
“Yet, in this case, the respondent sent a letter offering to take down all the offending posts, but the complainant refuses to accept it. In this case, although all the posts are down, the Commission still wants a fine or penalty of $6,000,” Mr. Hadjis pursued his point..
“Human rights legislation is essentially civil and does not engage Charter rights,” Mr. Fothergill said, citing the Blencoe case in British Columbia, where an NDP MLA “lost his job, lost his livelihood and lost his mental health” because of a false provincial human rights complaint citing sexual harassment and, yet, the Courts found that this process had not violated his Charter rights.
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