Tuesday, July 29, 2008

** Richard Warman calls Canadian Human Rights Tribunal an "inquisition" and supports the DeTax Movement

Richard Warman calls Canadian Human Rights Tribunal an “inquisition” and supports the DeTax Movement

 

 

http://www.freedomsite.org/legal/july29-08_richard_warman_calls_chrt_inquisition.html

 

> Richard Warman as “Mary Dufford” Email <

 

 

 

On July 23, 2008 the Canadian Human Rights Tribunal released close to 400 pages after a request was made under the Access to Information Act by Toronto webmaster Marc Lemire.

 

The documents released were the evidence as filed in the Richard Warman vs Eldon Warman Canadian Human Rights Tribunal hearing, which took place in 2005 and a decision was rendered on September 23, 2005.

 

> Download Warman’s Mary Dufford Email <

 

The most interesting document is HR-3.   It is a two page email sent by Richard Warman to Eldon Warman, while Richard Warman was pretending to be a female named Mary Dufford. 

 

The email starts off by referring to Eldon Warman’s DeTax movement and Richard Warman states: 

 

“I appreciate your previous efforts to help not just myself but all thinking Canadians to liberate ourselves from the false taxations chains put on us people who want to be our masters and feel that it is  now our turn to give something back to you.”

 

In that email Richard Warman refers to the Canadian Human Rights Tribunal as an “inquisition” and refers to the CHRT as: “Canadian human rights (should be ‘wrongs’!!!) tribunal

 

Richard Warman as “Mary Dufford”

 

“There is a rumour going around that you are being asked to attend an inquisition before the Canadian human rights ( should be 'wrongs'!!!) tribunal in Ottawa begining on Monday april25th. No doubt CCRA is somehow mixed up in this in an attempt to silence your much needed voice.

 

 Me and two friends who have used your methods to free ourselves have vowed that if this is true we will come to Ottawa and sit with you in support./ We feel it is

the least we can do for you after you've done so much for so many others. It would be over an hour drive but worth it many times over.

 

Please let us know if this is true and we will be there for you.

 

 Mary

 

 ps no problems with last years taxes using your guidance and doing same for this years too!

 

 

 

 

Richard Warman’s testimony on calling the Tribunal an “inquisition”

 

THE CHAIRPERSON: I see that the inquiry is referred to as an inquisition.

 

MR. WARMAN: Yes, there is some tongue-in-cheek there, I'm afraid.

Eldon Warman Transcripts – Volume 1, Page 22

 

 

 

 

 

 

More Information:

 

http://www.freedomsite.org/legal/july29-08_richard_warman_calls_chrt_inquisition.html

 

> Richard Warman as “Mary Dufford” Email <

 

 

Monday, July 28, 2008

Free Speech in Canada, RIP: The Silencing of Fr. de Valk

http://www.remnantnewspaper.com/Archives/archive-2008-0630-vree-free_speech_in_canada.htm

 

 

Free Speech in Canada, RIP

 

The Silencing of Fr. de Valk

 


Pete Vere

REMNANT COLUMNIST, State

 

The Silencing of St. Paul

(When will they ever learn!)

(www.RemnantNewspaper.com) The Catholic Church is facing persecution in Canada. Christians who assert traditional moral principles are being targeted by homosexualist activists before the country’s “human rights” tribunals. Stating that marriage is exclusive to one man and one woman can now be considered a hate crime in Canada. One of the government’s main targets is Fr. Alphonse de Valk, an elderly Basilian priest who was instrumental in founding Canada’s pro-life movement.

News of the persecution may shock some American readers. Three years ago, Canada’s most well-known author of Catholic-themed fiction, Michael O’Brien, published an essay warning of the impending homosexualist persecution of Christians in Canada. Mr. O’Brien was subsequently ridiculed by certain Catholic writers on the south side of the Canada-U.S. border. One or two were traditionalist, but most of the scorn and ridicule came from a certain magazine publisher in northern California. This individual dismissed Mr. O’Brien as “hysterical” and his prediction as a figment of Mr. O’Brien’s imagination for fiction. Today, northern California is close to where Canada was five years ago in terms of homosexualist activism. And Canada is close to the hedonistic totalitarianism prophesied by Mr. O’Brien.

Thus many Catholics from Canada – myself included – were touched recently when Michael Matt reached across the traditionalist divide, shed some much-needed light on Fr. de Valk’s situation, and offered Father both prayers and support on behalf of The Remnant. It was a brave decision on the part of Mr. Matt. For years now, his cousin Al Matt and The Wanderer have been mocked as “alarmist” and “extremist” for allowing me and other Canadian writers to shine some light on Canada’s human rights tribunals. Mr. Michael Matt can expect no differently. Having personally called The Remnant editor to thank him for this kindness, we discussed some of the background to Fr. de Valk’s situation and the need for Catholics to rally to Father’s defense. He then graciously invited me to share with The Remnant’s readership an ‘inside the igloo’ perspective of Canada’s human rights tribunals.

Fr. de Valk is the editor of Catholic Insight. This monthly journal promotes the Church’s traditional teaching on marriage and the family, speaking out strongly against contraception, divorce, abortion, euthanasia, homosexuality and other acts of immorality that have gained widespread acceptance in our day. During the political debate over so-called “same-sex marriage,” Father published several articles upholding marriage as God created it – both under the Natural Law, and as a sacrament. These articles quoted extensively from the Bible, papal encyclicals, and other sources of Catholic Tradition. The articles also quoted studies from reputable medical doctors and psychologists.

This is the “hate crime” for which Father is being investigated by Canada’s human rights commissions. Once the complaint is investigated, the commission will likely haul Father before one of Canada’s human rights tribunals. Technically, the tribunals operate at an arm’s length distance from the commissions, which take on a new role as legal prosecution for the complainant. In practicality, no accused has ever beaten the rap when brought before the tribunal by the commission.

The reasons for this are many. The human rights tribunals are quasi-judicial in nature, which allows them to circumvent or ignore traditional legal protections for the accused. For example, the complainant need not show up or testify at the hearing – thus depriving the accused with the opportunity to face his accuser. The complainant (or his lawyers if he fails to show up, as happened recently in a British Columbia hearing) can introduce new evidence at any time during the tribunal hearing; the evidence need not be disclosed in advance. This is a gross violation of Natural Justice which dictates that every accused has the right to know the case against him.

By now the blood-pressure of Christopher A. Ferrara – The Remnant’s in-house legal eagle – must be skyrocketing. I would advise Mr. Ferrara and any other lawyers among The Remnant’s readership to skip the next paragraph. It details even worse violations of Natural Justice.

The state pays the legal costs of the complainant, whereas the accused is responsible for his own legal fees. Not that a good legal defense really makes a difference anyway – the commissions have a 100 percent conviction rate when bringing a Christian before Canada’s human rights tribunals. In fact, they have a 100 percent conviction rate with every case they bring before the tribunal. Thus Father, who has already spent $20,000 on his legal defense, will be forced to appear before a tribunal of politically-correct government appointees who make up the rules as they go along. He is not even entitled to a public defender because the tribunals are not real courts, but quasi-judicial tribunals.

Yet if Father refuses to go along with this marsupial madness, he can be charged with contempt of court and face real jail time. All because he upheld Church teaching on something that nobody even questioned a generation ago, namely, that marriage is a union between one man and one woman.

This is happening today in a country where 80 percent of the population lives within 200 miles of the American border, and where just under half of the total population is nominally Catholic. This is why orthodox Catholics in the (once-) Great White North are setting aside differences over liturgy and the Second Vatican Council. If the state can silence Fr. de Valk from preaching what the Church has always taught concerning marriage, then how long before the state silences Ecclesia Dei, FSSP, SSPX and conservative Novus Ordo priests from the pulpit? Cultural Marxists and secular hedonists make no distinction among those recognize Christ as King.

Moreover, the government does not restrict its persecution to Catholics. The commissions also have a 100 percent conviction rate against evangelical and fundamentalist Protestants. So grave is the danger that even hardened Calvinist preachers and staunchly anti-Catholic Orangemen are speaking out in defense of Fr. de Valk – a celibate papist who proudly wears his Roman collar. And likewise, we Catholics are speaking out in defense of Protestant ministers who find themselves hauled before the commissions and tribunals.

One such individual is Pastor Stephen Boissoin, an evangelical Protestant youth minister who was recently censured by the tribunals and whose situation is being closely monitored by Fr. de Valk’s supporters. Mr. Boissoin is probably the test case for Fr. de Valk. The tribunals will likely use the decision in Mr. Boissoin’s case as a precedent upon which to try and silence Fr. de Valk.

The Protestant minister was hauled before the Alberta Human Rights Tribunal over a letter he wrote to the Red Deer Advocate in 2002. The local newspaper published the letter during the height of Canada’s debate over so-called same-sex marriage. Admittedly Mr. Boissoin’s tone was somewhat intemperate, but keep in mind that fundamentalists lack Sacred Tradition and the grace of the Sacraments. Thus their theological vocabulary and grasp of Biblical nuance is not as developed as that of a Traditional Catholic priest who has been schooled in St. Thomas Aquinas.

Using some strongly-worded language, Mr. Boissoin denounced efforts to undermine marriage, society’s most fundamental building block. He also denounced homosexualist activism in his community’s public schools among children as young as six. He compared this activism to pimping, pedophilia and drug dealing. He accused homosexual activists of declaring war on the family. Some might cringe at his wording, however, Mr. Boissoin was running a youth ministry that helped teenaged prostitutes and drug addicts get off the street. The tribunal rendered its decision on May 30 of this year – six years after the incident. The decision ordered Mr. Boissoin to pay the complaint $5,000 fine in addition to $2,000 in court costs.

The monetary damages were ordered despite the tribunal’s acknowledgment that the complainant was “not a direct victim” of Mr. Boissoin’s letter. Should Mr. Boissoin refuse to pay the fine, he could end up in jail. He has said he would rather go to jail than abide by the ruling.

Yet the fine is the least troubling aspect of the decision. The tribunal judge claimed her decision was not to be a punishment but “a remedy [...] to ameliorate the effects of the discrimination insofar as is possible and to denunciate the actions which were the subject of the complaint with a view to educate a hopefully prevent actions of this nature in future.”

In other words, the tribunal is not satisfied with punishing Mr. Boissoin for adhering to his traditional Christian beliefs concerning marriage. The Protestant minister must also be forced to embrace whole-heartedly homosexualist activism.

From here the tribunal decision becomes even more troublesome. Again I advise American lawyers reading this to sit down and check their blood pressure before finishing this paragraph. The tribunal ordered Mr. Boissoin to issue a written apology to the complainant, and submit it to the Red Deer Advocate for publication. This is an act of persecution and humiliation reminiscent of the Russian troikas. It is an act of persecution because it orders Mr. Boissoin to renounce a tenet of his Christian moral beliefs. And it is an act of humiliation because it goes well beyond the mandate of Canada’s real courts. Not even Paul Bernardo – Canada’s most notorious child rapist and murderer – was forced to apologize to his victims’ families.

But it gets worse. The tribunal prohibited Mr. Boissoin for life from making any “disparaging” comments about homosexuality. Given the low threshold for the term “disparaging,” namely anything an apologist for sexual hedonism might find offensive, how can Mr. Boissoin even touch the subject without violating the tribunal judgment? Thus the state is attempting to silence Mr. Boissoin from communicating what the Natural Law teaches about marriage.

And worse still. The tribunal can have Mr. Boissoin charged with contempt of court if he criticizes the tribunal, the decision or the complainant and his witnesses for having lodged the complaint. The decision states Boissoin is “prohibited from making disparaging remarks in the future about [the complainant] or [the complainant’s] witnesses relating to their involvement in this complaint..”

This sets another dangerous precedent. Mr. Boissoin is prohibited from speaking out against his experience before a government tribunal. It is not just the activists who have become a protected class in the persecution of Christians, but their protectors within the government bureaucracy. The silencing is total. Technically Mr. Boissoin could be charged for praying that God enlightens and converts the hearts of his persecutors, which Mr. Boissoin tells me he does at least once a week. And should I find myself back in my homeland, I technically could be charged as Mr. Boissoin’s accomplice for having drawn attention to his plight through The Wanderer and The Remnant.

A precedent has been set with Mr. Boissoin upon which to silence Fr. de Valk, except that no precedent has been set. Were Mr. Ferrara to interject on behalf The Remnant’s readership in the legal profession, I imagine he would say: “That’s impossible! Either stare decisis applies and the case sets a precedent, or the case does not set a precedent. It cannot, at the same time, do both.” Logic would be on Mr. Ferrara’s side, as would centuries of Anglo-American legal tradition. But Canada’s human rights tribunals do not operate according to logic or English legal tradition.

Both Mr. Ferrara and I are veterans of the legal battles over Terri Schindler-Schiavo. Mr. Ferrara played the greater role, devoting his efforts to the legal fight to save Terri’s life. My legal involvement was far more modest in comparison – I was asked on a couple of occasions to draft a canonical brief demanding respect for Terri’s pastoral and canonical right to the sacraments. Yet both of us were aware of the “Terri principle” when fighting Terri’s legal battles. The courts interpreted the law favorably when it helped Michael Schiavo, but unfavorably if a favorable interpretation would help Terri.

A similar principle appears whenever the commissions and tribunals pursue a complaint against Christians. Experts in civil law have told me that tribunal decisions, being quasi-judicial, do not establish legal precedent. However, many tribunal decisions cite other tribunal decisions when imposing a “remedy” upon the accused. Thus the tribunals follow precedent in practice, and their practice is to “remedy” against Christians. However, the tribunals tend to ignore precedents that establish constitutional and legal protections for the accused.

Here are a handful of examples off the top of my head: A Knights of Columbus Hall was fined $2,000 plus damages for declining to rent their hall for a same-sex marriage; Evangelical Protestant printer Scott Brockie was fined $5,000 for declining to print homosexual-themed stationary; Mayor Diane Haskett was fined $10,000 plus interest for declining to declare a gay pride day for the City of London; Christian Horizons, an Evangelical ministry that operates group homes for the mentally challenged, was fined $23,000 for dismissing a Lesbian employee despite having signed an employment contract whereby she agreed to live according to Christian moral standards. A few minutes on-line with Google will call up several other examples of sexual activists using the country’s human rights tribunals to persecute Christians.

Barring a miracle on the same proportion as Our Lady of Fatima’s miracle of the sun, the tribunal will use the Boissoin decision as a precedent to decide against Fr. de Valk. In the eyes of the commission, both are Christian clergy (The tribunals would probably condemn Pope Leo XIII’s Apostolicae curae as a hate document). Both publicly defend Christian moral teaching. And both have published articles critical of homosexual activism within the broader Canadian society.

So what can Fr. de Valk anticipate when he goes before Canada’s human rights tribunals? The answer is fourfold: 1) Thousands of dollars in fines; 2) An order to apologize to the homosexual activist who initiated the complaint against him; 3) An order to never again communicate the Church’s traditional teaching on moral issues – not only from the pulpit, but in the confessional as well; and 4) A prohibition from speaking out against the injustice of Canada’s “human rights” racket to which he was subjected.

Thank-you, Mr. Matt, for joining your cousin at The Wanderer in condemning this injustice. Thank-you for standing up for Fr. de Valk and the Church’s teaching concerning marriage. And  thank-you for exposing The Remnant’s readership to Canada’s quasi-judicial prosecution of Christians.

Please continue to keep Fr. de Valk and other persecuted Christians in prayer.

 

Friday, July 25, 2008

Marc Lemire's Submissions on the Policy Review of Section 13 of the CHRA

On June 17, 2008, the Canadian Human Rights Commission called their own policy review of Section 13 of the Canadian Human Rights Act – Canada's notorious thought control legislation.

 

In a press release posted to the CHRC's website, they stated:

 

The Canadian Human Rights Commission (CHRC) has launched a comprehensive policy review of how best to address hate messages on the Internet. Leading constitutional law expert Professor Richard Moon of the University of Windsor will conduct an independent study as an important part of this review.

He will conduct legal and policy research and analysis and make recommendations on the most appropriate mechanisms for addressing hate messages on the Internet, with specific emphasis on section 13 of the Canadian Human Rights Act and the role of the CHRC. His work will include a review of existing statutory and regulatory mechanisms, an examination of the mandates of human rights commissions and tribunals, and a consideration of Canada's international human rights obligations.

 

 

Within days of the CHRC's announcement, I contacted Professor Moon and requested that I be consulted on the review of Section 13.  According to Mr. Moon, due to the tight timelines, he is unable to actually conduct any in person interviews, but will be accepting written submissions.

 

Below are the written submissions of Marc Lemire on Section 13 and it's impairment of freedom of speech.

 

For those wishing to comment on the CHRC's notorious thought control legislation - Section 13, should contact Prof Robert Moon at: rmoon@uwindsor.ca

 

 

 

NO Surrender!

 

Marc Lemire

http://www.freedomsite.org

 

 

 


Marc Lemire's Submissions to Prof Robert Moon

On Section 13 of the Canadian Human Rights Act

 

 

 

 

1. Section 13(1) of the Act is a violation of the right to freedom of expression guaranteed by s. 2(b) of the Charter. The only issue is whether this violation can be justified under s. 1 of the Charter.

 

 

Objective of Section 13

 

2. In Taylor, the Court held that the first consideration in an analysis under s. 1 of the Charter was whether the objective of the infringing measure was of sufficient importance to warrant overriding a fundamental constitutional guarantee. It held that the broad legislative intent in implementing s. 13 was the promotion of equal opportunity unhindered by discriminatory practices and that these objectives were of sufficient importance that they were capable of overriding the right to freedom of expression guaranteed by section 2(b) of the Charter.

 

3. In arriving at this conclusion, Dickson C.J., speaking for the majority opinion, looked to s. 2 of the Act, which described the purpose of the statute as being the promotion of equal opportunity. Dickson, C.J. held that s. 13 was aimed at preventing communications that contributed "to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality." (Emphases added)

 

4. It is submitted that this finding was a fundamental error and that the objective of s. 13 was not equality but, in essence, the silencing of expression and opinion on any matter which might raise controversy between racial, ethnic, or religious groups.

 

5. Section 13 is in substance a reincarnation of the old common law offence of seditious libel, namely, "a matter which is producing, or has a tendency to produce feelings of hatred and ill-will between different classes of His Majesty's subjects."

 

6. The provision is in stark contrast to the rest of the Act. All other activities defined as discriminatory practices relate to the provision of goods, services, facilities or accommodations (ss. 5, 14), the provision of commercial premises or residential accommodation (ss. 6, 14), hiring and employment practices (ss. 7,8,9,10,11, 12,14), and retaliation against a complainant under the Act. These provisions relate to the ability of a person to survive in society, to eat, to find a place to live, to find employment and a means of making a living. The retaliation provision is an attempt to protect those seeking a remedy under the statute.

 

7. Section 13, however, does not relate to these fundamental means of surviving and earning a living in Canadian society. It is an attempt to enact, in a different, updated and more acceptable guise, the offence of seditious libel, but without the defences available to a person charged with that criminal offence and without any of the procedural safeguards..

 

 

8. The major case in Canada on seditious libel is that of R. v. Boucher [1951] S.C.R. 265, which reviewed the history of seditious libel. In that case a member of the Jehovah's Witnesses had published a pamphlet in Quebec alleging that the police and judicial system in Quebec had persecuted members of the Jehovah's Witnesses at the behest of the Catholic Church and its priests.

 

9. One of the major issues to be resolved in Boucher was whether or not incitement to violence was a necessary ingredient, and whether that part of the definition which states that an intention "to promote feelings of ill-will and hostility between different classes of His Majesty's subjects" taken literally and by itself, was sufficient to constitute the offence. The Court reviewed cases which involved this allegation, mainly against accused in Ireland charged with conspiring to promote feelings of ill-will and hostility towards the English.

 

10. Rand J. held that the promotion of feelings of ill-will and hostility between different classes of subjects was not enough to constitute seditious intention. He (with the majority) held:

 

"There is no modern authority which holds that the mere effect of tending to create discontent or disaffection among His Majesty's subjects or ill-will or hostility between groups of them, but not tending to issue in illegal conduct, constitutes the crime, and this for obvious reasons. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality. A superficial examination of the word shows its insufficiency: what is the degree necessary to criminality? Can it ever, as mere subjective condition, be so? Controversial fury is aroused constantly by differences in abstract conceptions; heresy in some fields is again a mortal sin; there can be fanatical Puritanism in ideas as well as in mortals; but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and deeper uniformities as bases of social stability. Similarly in discontent, affection and hostility: as subjective incidents of controversy, they and the ideas which arouse them are part of our living which ultimately serve us in stimulation, in the clarification of thought and as we believe, in the search for the constitution and truth of things generally."

 

 

 

11. Cartwright J. held that any definition of seditious intention to mean the promotion of "feelings of ill-will and hostility between different classes of such subjects" held great concerns. He stated:

 

"The obvious objection to accepting this as a sufficient definition, unless we are bound by authority to do so, is that such acceptance would very seriously curtail the liberty of the press and of individuals to engage in discussion of any controversial topic. It is not easy to debate a question of public interest upon which strong and conflicting views are entertained without the probability of stirring up, to a greater or less degree, feelings of ill-will and hostility between the groups in disagreement.

 

The reasons of my brother Kellock bring me to the conclusion that the definition quoted above ought not to e accepted without qualification, and that before a writing can be held to disclose a seditious intention by reason of being calculated to promote feelings of ill-will and hostility between different classes of His Majesty's subjects it must further appear that the intended, or natural and probable, consequence of such promotion of ill-will and hostility is to produce disturbance of or resistance, to the authority of lawfully constituted government."

 

 

12. The accused in Boucher was acquitted and his conviction set aside..

 

13. In Taylor, the Supreme Court looked to s. 2 of the Act to discover the objective of section 13. It is submitted that this was a fundamental error and that it should have looked to section 13 itself to look for its purpose. The purpose clearly was to prevent the very type of communications and expressions dealt with in the Boucher case.

 

14. It is common sense, as recognized in Boucher, that one cannot discuss many matters of public interest, without intense feelings being generated concerning such things as race and religion. Criticism of Israel, for instance, is now condemned as being hatred of Jews. Opposition to same-sex marriage is condemned as hatred of homosexuals. Questioning by Germans as to what really happened in concentration camps in Germany to Jews is condemned as hatred of Jews.

 

15. The purpose of section 13 was elucidated in 2001 when the government amended section 13 in the Anti-terrorism Act, S.C. 2001, c. 41 (Bill C-36), in s. 88 by extending its reach to communication using a computer or a group of interconnected or related computers, including the Internet.

 

 

 

 

16. The preamble of the Anti-terrorism Act states:

 

WHEREAS Canadians and people everywhere are entitled to live their lives in peace, freedom and security;

 

WHEREAS acts of terrorism constitute a substantial threat to both domestic and international peace and security;

 

WHEREAS acts of terrorism threaten Canada's political institutions, the stability of the economy and the general welfare of the nation;

 

WHEREAS the challenge of eradicating terrorism, with its sophisticated and trans‑border nature, requires enhanced international cooperation and a strengthening of Canada's capacity to suppress, investigate and incapacitate terrorist activity;

 

WHEREAS Canada must act in concert with other nations in combating terrorism, including fully implementing United Nations and other international instruments relating to terrorism;

 

WHEREAS the Parliament of Canada, recognizing that terrorism is a matter of national concern that affects the security of the nation, is committed to taking comprehensive measures to protect Canadians against terrorist activity while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms;

 

AND WHEREAS these comprehensive measures must include legislation to prevent and suppress the financing, preparation, facilitation and commission of acts of terrorism, as well as to protect the political, social and economic security of Canada and Canada's relations with its allies;

 

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows..."

 

 

17. The preamble to the Anti-terrorism Act indicates that s. 13 is part of the State's strategy to eradicate terrorism, to protect Canadians against terrorist activity and to protect the political, social and economic security of Canada. It is not a "remedial" provision to prevent discrimination. It is a security measure, just as seditious libel is, and it is submitted that its true objective was always to control opposition to policies which might create ill-will between groups in society, and might lead to political opposition to government policies such as multiculturalism and mass Third World immigration.

 

 

18. The linking of s. 13 to terrorism, through the Anti-terrorism Act, indicates the extreme approbation which attaches to a respondent in proceedings against him, in which he has no defences of intent, truth, fair comment, or proof of actual disturbance being created by the expression or speech.

 

Summary:

 

19. It is submitted that the objective of controlling communications likely to lead to strong emotions of detestation against a group, without evidence  that the intended, or natural and probable, consequence of such promotion of ill-will and contempt  is to produce disturbance of or resistance, to the authority of lawfully constituted government is NOT a matter of such overriding importance that it should override the right of citizens in a democracy to freedom of expression, thought, belief, opinion and the press and conscience. Boucher, supra, set out the reasons why this is so in the 1950's, when Canada did not have a Charter of Rights.

 

 

Proportionality:

 

20. In addition and in the alternative, the respondent submits that sections 13 and 54 do not use proportionate means to achieve the goal of preventing communications exposing a group to hatred or contempt, such that members thereof cannot participate in society.

 

21. It was held by the majority in Taylor that proportionality was achieved only if the State showed that (1) a connection existed between the measure and objective so that the former could not be said to be arbitrary, unfair or irrational; (2) the measure impaired the Charter right or freedom at stake no more than was necessary; and (3) the effects of the measure were not so severe as to represent an unacceptable abridgment of the right or freedom.

 

Connection between measure and objective

 

22. It is submitted that the over-riding objective of the Canadian Human Rights Act is to prevent persons from being denied shelter, food and employment on the basis of such things as race and religion. A person indeed cannot participate fully in society if he is black and is refused service in restaurants because he is black or if he cannot rent an apartment because he is black.

 

 

23. If a black person hears discussion, however, that too many blacks commit crimes or that too many black families are dysfunctional with no father, he may be angry and have hurt feelings. He may feel he has been exposed to feelings of contempt, ill-will and hostility. But he is entitled to join the discussion and to counter what has been said about blacks. He is participating in democratic  society by doing so. IF he was silenced because he was black and was not allowed to participate in any such discussion, then he would have been discriminated against and would not be participating fully in society. Ernst Zundel, a member of the German ethnic minority,  was so silenced regarding discussions of whether Germans committed mass atrocities against Jews during World War II before a panel of this Tribunal.

 

24. It is submitted that there is a vital difference between actions, such as refusing a black person a seat in a restaurant, and speech.  Whereas the first action deals with the ability of an individual to live and obtain services, the second deals with ideas, policies, implications for society, implications for education, and other public policy matters which are the core of democratic functioning.

 

25. The decision in Taylor, having made no differentiation between speech and actions, violated the core principles of a democratic society, by sanctioning the silencing of matters of public interest and public concern. A democracy is a form of government in which power resides in the people. And the people can only discuss and decide matters using their thoughts and expressing their beliefs and opinions.

 

26. Section 13(1) is unfair and irrational, because it is impossible not to be subjective in deciding what is hatred and contempt. These are human emotions. Do humans have a right to express emotions? Who has the right to decide what emotions have been expressed and what their effect is?

 

27. Why is law dealing with emotions? Law is the regulation of human action. Laws such as defamation deal with the accuracy of human speech and the effects on reputation in the community. But laws such as hate laws deal at an even lower and irrational level, with raw human emotion. At this level, there can be no objectivity and no true control and no true law, dispensed fairly, equally, evenly and objectively. Application of the law will always be arbitrary and will depend on the political tone of the day. All of these factors, elucidated so well in Boucher, indicate why s. 13 is unfair, pernicious and irrational.         

 

Impairment of Freedom of Speech and Conscience and Effects Thereon:

 

28. There is no provision which could impair free speech and conscience more than s. 13, except the death penalty.

 

29. There are no defences to s. 13 as do exist with the criminal offences of hate propaganda, seditious libel, blasphemous libel, and defamatory libel and the civil action of defamation.

 

30. The fact that the silencing is done by an administrative tribunal rather than criminal courts in fact makes the silencing even more pernicious and damaging.

 

 

31. The following factors indicate that the impact and effect of s. 13 on the Charter rights is so damaging that the provision cannot be saved under s. 1 of the Charter:

 

32. Before this Tribunal, evidence is admissible which would not be admissible in a court of law. A person may be found to be practicing discrimination on the basis of hearsay and silenced.

 

33. The standard of proof is not the strict one of beyond reasonable doubt but only the civil standard of probabilities.

 

34. Under the criminal hate propaganda laws, the consent of the Attorney General of the relevant province is required, thus keeping strong control on who can and cannot be prosecuted. Under human rights law, no such control exists. Any person can lay a complaint whether or not he is the victim of the alleged discriminatory practice. While the Commission has a large discretion to dismiss a  complaint, where truth and intent are not factors in a complaint under s. 13, it is clear that many matters can be complained of which would not be caught if such standard defences were available. An angry black person, writing about slavery, for instance, could easily be the subject of a complaint under s. 13 for hatred against whites. The fact that so far Canadians have not used the provision in this manner does not mean it will not be so used in the future. The intent of the person or group of persons and whether the matter is true or not will be irrelevant.

 

35. The human rights law has a declaratory "educative" effect, and is meant to be so, with the Commission having a mandate to "educate" persons about discrimination. Because of s. 13 this includes speech and necessarily the ideas and beliefs which the Commission finds abhorrent. An example is the belief that six million Jews did not die in World War II pursuant to an extermination program. This deals with interpretation of historical evidence that in a democratic society should always be open to investigation. But the Tribunal in the Citron v. Zundel case found such a belief to be hate. Yet, writings on the so-called Holocaust are without doubt likely to expose Germans to hatred and contempt. In sharp contrast, the criminal law is not meant to educate but to punish and protect society. The chilling effect of human rights legislation is therefore much more serious as it permeates all aspects of culture and society, making it "politically incorrect" to question certain events or criticize certain groups, such as homosexuals. The Attorneys General of provinces and Crown Attorneys do not "educate" people about what are acceptable thoughts and opinions and beliefs  and what will not be tolerated by the government.

 

But the Canadian Human Rights Commission does. In a letter to the London Free Press from Robert W. Ward, Secretary General of the Commission, which it reproduces on its website, the Commission stated its position:

 

"The Commission is aware that the very nature of the Internet, with service providers often located outside Canadian borders, makes it difficult to enforce the Act's provisions regarding hate messages. In order to move away from a case by case approach, the Commission is in the process of establishing a comprehensive, multi‑faceted and proactive strategy to deal with hate on the Internet, which includes, but is not limited to, complaints. Proactive actions could include working with Internet service providers to discourage hate sites, developing public information activities, compiling special reports to Parliament with clear recommendations, working with other organizations and encouraging people to contact service providers and advocacy groups when they are made aware of such sites."

 

 

36. The Commission's policy is set out in such documents on its website as "Proactive Initiatives - A Watch on Hate - FAQ Regarding Hate on the Internet and the Canadian Human Rights Commission." In this document, the Commission sets out its policies of working proactively with police, federal and provincial agencies, ISPs, and NGOs that "represent the interests of people who are often the targets of hate."

 

 

37. The Commission is deciding what is "hate" and what is not and is working to use its considerable power and influence to pressure Internet Service Providers (ISPs) to drop websites it dislikes, and to use informers and advocacy groups to pressure ISPs to drop websites. It uses this same power to "educate" people that if they do not follow the "party line" about historical events or the proper "group think" about social issues regarding homosexuality, disability or race.           

 

38. The Commission is fully empowered to enforce acceptable thinking under s. 27 of the CHRA which provides:

 

27. (1) In addition to its duties under Part III with respect to complaints regarding discriminatory practices, the Commission is generally responsible for the administration of this Part and Parts I and III and

 

(a) shall develop and conduct information programs to foster public understanding of this Act and of the role and activities of the Commission there under and to foster public recognition of the principle described in section 2;

 

.....

(c) shall maintain close liaison with similar bodies or authorities in the provinces in order to foster common policies and practices and to avoid conflicts respecting the handling of complaints in cases of overlapping jurisdiction;

 

......

(h) shall, so far as is practical and consistent with the application of Part III, try by persuasion, publicity or any other means that it considers appropriate to discourage and reduce discriminatory practices referred to in sections 5 to 14.1.

 

 

39. It is submitted that the very power of the Commission to use any means necessary to enforce only certain beliefs, opinions or thinking makes section 13 an extraordinarily dangerous provision since its effects are not only on the respondent to a complaint but on an entire society which is subject to the enforced "persuasion" and "publicity" of the Commission on what are and are not acceptable opinions, beliefs and expression. It is the Commission which will have the power to decide what "exposes" a person to "hatred and contempt", two extremely abstract concepts depending on who is doing the speaking and what he believes.

 

 

40. It is submitted that the very power of the Commission to work and network with similarly minded groups to enforce the chosen "correct views" magnifies the chill on freedom of expression extraordinarily.

 

41. The positions of the Commission on unacceptable opinion are not lost on persons or groups attempting to avoid prosecution under the legislation with its attendant cost, stigma, and potential loss of employment or business. While a complainant under the legislation is provided complete protection in employment and freedom from retaliation or harassment, the respondent is provided with no such protection. Most Canadians will voluntarily self-censor to conform to the opinions and positions of the Commission in order to avoid such potentially devastating effects on their lives. This effect is magnified by the fact that computer networks and the Internet now fall under the jurisdiction of the Commission as will be discussed below.

 

Chill upon Freedom of Expression

 

42. Lack of intent to discriminate is not a defence. Dickson C.J. held in Taylor that the purpose of human rights codes was to prevent discriminatory effects rather than to stigmatize and punish those who discriminate. He also held that the objective of section 13 required an emphasis upon discriminatory effects since the objective could only be achieved by ignoring intent. A large reason for his reasoning was that the chill placed upon open expression in such a context will ordinarily be less severe than that occasioned where criminal legislation is involved. Dickson C.J.'s entire judgment was premised on his statement that "The aim of human rights legislation and of s. 13(1) is not to bring the full force of the state's power against a blameworthy individual for the purpose of imposing punishment. Instead, provisions found in human rights statutes generally operate in a less confrontational manner, allowing for a conciliatory settlement if possible and where discrimination exists, gearing remedial responses more towards compensating the victim."

 

43. Dickson C.J. held in Taylor that "The chill upon open expression in such a context [of a human rights statue] will ordinarily be less severe than that occasioned where criminal legislation is involved, for attached to a criminal conviction is a significant degree of stigma and punishment, whereas the extent of opprobrium connected with the finding of discrimination is much diminished and the aim of remedial measures is more upon compensation and protection of the victim. As was stated in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134, under a human rights regime: "It is the [discriminatory] practice itself which is sought to be precluded. The purpose of the Act is not to punish wrongdoing but to prevent discrimination. The last point is an important one and it deserves to be underscored. There is no indication that the purpose of the Canadian Human Rights Act is to assign or to punish moral blameworthiness."

 

 

 

44. It is respectfully submitted that whatever merit these arguments had in 1990 are negated by the amendment to the penalty provisions for section 13 enacted in 1998, c. 9, s. 28  and the expansion of application to computer networks in 2001.

 

45. This amendment brought fundamental change to the effects of section 13.

 

46. The Tribunal, when finding against a respondent in a section 13 complaint, is restricted to making orders set out in section 54. Section 13 has its own special penalties, set apart from all other discriminatory practices in the Act. This fact shows that the objective of section 13 was always something different from the rest of the discriminatory practices, otherwise, it would not have needed its own special orders.

 

47. For any discriminatory practice other than section 13, there is no jurisdiction in the Tribunal to make any monetary order against a person except in compensation for the discriminatory practice. There are no penalty provisions even though a person may have been denied accommodation or food because of his race or religion.

 

 

48. But under section 13, the Tribunal has been given the jurisdiction to make an order, not only for compensation to the victim for acting "wilfully or recklessly" pursuant to s. 53(3) of the Act, but to make an order for "a penalty", i.e., a "punishment, esp. a fine, for a breach of the law" ("Canadian Oxford Dictionary", Oxford University Press: 1998), up to $10,000. In making this order, the Tribunal must look at the "nature, circumstances, extent and gravity of [the thought, opinion, belief, expression] and "the wilfulness or intent" of the person, "any prior discriminatory practices" that the person has engaged in, and his ability to pay the penalty. Should a respondent be unable to pay the penalty, he can be cited for contempt and imprisoned.

 

49. To "punish" means "cause (an offender) to suffer for an offence" Canadian Oxford Dictionary, supra).

 

50. The requirement to look at the respondent's intent, his wilfulness, the gravity and nature of the speech and "any priors" is distinctly criminal and penal in nature, having nothing to do with preventing the effects of discrimination.

 

51. Punishment imports stigma and moral blameworthiness into the human rights context, which according to Dickson, C.J. was strictly about the prevention of discriminatory acts, not their punishment and the stigmatization of the respondent in such proceedings.

When the Taylor case was decided, the only order which could be made was a cease and desist order.

 

52. There is a further implication to this, given the findings in the Taylor case that once an order is made under s. 13, and all appeals are lost, the respondent cannot further challenge the contempt order on the grounds that he has continued to make statements in furtherance of his duty to his conscience or because he believes it is the truth and will further the public interest and so on. Instead, pursuant to Rule 472 of the Federal Court Rules,1998,  he becomes liable to up to five years imprisonment. He can be fined, and ordered to do or refrain from doing any act. This process can be repeated for years if the person is one who believes deeply in what he is saying and is willing to continue to "speak truth to power", from his point of view.

 

 

53. While the liability to go to prison is indirect, in that an order of contempt is required, the fact that a person cannot again raise the truth of his statements or his intent or that his statements are a matter of religion and conscience, means that the imprisonment is a direct result of continuing to make statements which he in good conscience believes he must make.  Thus, imprisonment is being used to enforce beliefs, opinions, and ideologies through the use of s. 13. The case of Catholic Bishop Frederick Henry is a case in point. Bishop Henry issued a pastoral letter stating Catholic teaching regarding homosexuality. As a result, a human rights complaint was laid against him in Alberta for hate against homosexuals.  He has repeated his statements, being the teachings of the Catholic Church for which human rights complaints were laid, no doubt because he believes in good conscience that as a bishop of the Church it is his duty to do so. Like John Ross Taylor, he may end up in jail for years if the Alberta Tribunal finds him guilty.

 

54. Because of this legal structure, it is submitted that s. 13 and 54 violate the guarantee in s. 7 of the Charter the "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." That a person could be imprisoned in Canada for refusing to follow an order that violates his conscience and truth is a violation of fundamental justice.     

 

55. Truth is not a defence under section 13. Nor is fair comment, both of which are defences to defamatory words in civil actions. While the majority decision in Taylor paid homage to the importance of truth as a core value in Canadian society, the decision to uphold a law banning speech where truth is no defence indicated clearly that the true core value given effect to by the court was control of opinion in Canada on matters which might raise controversy regarding race, ethnicity, religion, etc.

 

56. Taylor is a judgment which bespeaks the malaise of modern times, a loss of faith in God, in conscience, in truth; and ultimately, in man himself. Judge Learned Hand stated in 1944:

 

"Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it¼." (Hand, The Spirit of Liberty, 3d ed., enl., ed. Irving Dilliard, p. 190 (1960))

 

57. It is submitted that truth is indeed the core value which must always take precedence over all other values. It is fundamental to the democratic form of government and it is the most basic right of all humans, to search for the truth, to share beliefs with others, to exchange ideas and opinions, to attempt always to get to the root of all things and find the truth.

 

58. The search for truth is the basis of freedom of conscience and religion. These are the freedoms recognized in the Charter, paragraph 2(a). The decision in Taylor violates both of these freedoms by denying the right of a man to speak the truth as he sees it and the truth which he may feel duty-bound to express. An example of this is a belief that homosexuality is a moral abomination which threatens the basis of society, is a dangerous and unhealthy sexual practice and threatens the safety of children. Homosexuals can and have filed human rights complaints against people for such statements, including the Catholic Bishop in Calgary, Frederick Henry.

 

 

59. The word "conscience" is defined in the Canadian Oxford Dictionary (Oxford University Press Canada 1998) as "a moral sense of right and wrong esp. as felt by a person and affecting behaviour."

 

60. An offence for words which does not allow one to tell the truth according to one's conscience is a violation of paragraph 2(a) of the Charter. An offence for words which one speaks with an intent to tell the truth, even though it may expose a group to hatred and contempt, is a violation of paragraph 2(a) of the Charter. It is a violation of the very basis of Canada's constitution which recognizes a moral basis to its law in the preamble to the Charter of Rights.

 

61. The extension of s. 13 to the Internet brings whole new considerations to the effects of the provision on freedom of the press and media which did not exist in 1990 when the legislation was limited to taped telephone messages. The legislation covers the communication of video, audio, text, graphics, animation or voice.

 

62. The Internet is used by Canadians extensively for communicating via emails and for searching for news and information. For the year 2000, a survey of this use was made by Statistics Canada and  is set out in its report, "Changing our ways" Why and how Canadians use the Internet" A further chart by Statistics Canada indicates that as of 2003 almost 96% of Canadians used email to communicate, over 55% use the Internet to view news. Some 89% use it for general browsing.

 

63. Almost all newspapers and magazines and other publishing concerns now are present on the Internet on news sites. This includes the Globe and Mail, the National Post, The Toronto Star and almost all medium and small newspapers, down to community presses. Radio and TV stations also have websites where their programs are often available and archived.

 

64. This situation did not exist in 1990 when Taylor was decided. At that time, the provision was aimed at taped telephone messages which a person would listen to after dialing the number. The amount and scope of the expressive activity now covered by s. 13 is mind-boggling, amounting to billions of pages of information, and megabytes of video and radio streams. In addition, voice communications are now being made using the Internet like a telephone. Emails are used by almost every person in Canada to communicate for business and personal purposes. All is subject to the monitoring of the Canadian Human Rights Commission, to search for "hate" and "contempt", without any defences and no protection or regard for the privacy of Canadians.

 


65. The anomaly now exists that such publications as the print version of a newspaper have defences available which the online version of the same article does not. A recent example is the article in the National Post, "Where are the female Einsteins?" by Charles Murray which was published on November 22 , 2005. The article argues that there are innate differences between groups, such as males and females. This could be seen as exposing females to hatred and contempt since these terms are so subjective.  Under the criminal hate propaganda law, the author and the newspaper have the defences set out in s. 319 for the print version. No such defences are available once the article is put on the Internet, as it was on the site of the American Enterprise Institute. Will the National Post and the author be subject to a complaint laid under s. 13 in this event, even if the article was not posted on the site of the newspaper itself? Is the article hate? Will discussion of such matters be targeted by the Commission or a determined complainant? These questions show how dangerous s. 13 has become given its extension to the Internet with this one small example.

 

66. The Internet is fast replacing print versions of many publications because of cost and reach of audience. This situation gives the Canadian Human Rights Commission an astounding reach to stifle opinion simply by letting it be known through its "educative" functions what it will and will not tolerate.

 

67. Such media as newspapers have been very protected from prosecution under laws such as defamatory libel, hate propaganda, blasphemous libel, and seditious libel, by defences which have due regard to the interests of society in freedom of opinion and the media. 

 

68. No such protection applies to s. 13 of the Act. Newspapers, magazines, online radio and TV are fully vulnerable to a single, determined complainant such as the complainant herein who can make multiple complainants, and who does not need even to be a member of the protected group. It makes the press vulnerable to the Commission itself, which has enthusiastically become an advocate for one version of the historical record regarding treatment of the Jews during World War II, and may become a determined advocate of other historical and social and political viewpoints. Much of its work can be done behind the scenes, pressuring newspapers and ISPs out of the sight of the public who will not realize the extensive censorship which is occurring as a result.

 

69. While this type of power is compatible with a totalitarian society, it is not one which is compatible with a free democracy.

 

 

70. The extension of s. 13 to private computer networks as well as the Internet is a gross violation of privacy of all Canadians. Repeated emails sent to a number of people on a network would fall within the provision even though the emails would be considered by the sender as a private communication. Even a single email could be caught if the email was forwarded by the receiver to other persons, thereby resulting in the email being "repeatedly" sent.

 

71. Voice communications are now available over the Internet. These conversations are subject to s. 13 with no rights to privacy.

 

72. Corporate and business computer systems are covered by the Act and subject to the extensive  search and seizure provisions of the Act.

 

73. An impact and effect which allows the State to punish private communications over private computer networks is an unjustifiable violation of freedom of speech and conscience under s. 1 of the Charter.