Friday, May 28, 2010

BREAKING!!! Canadian Human Rights Tribunal Refuses to Enforce Section 13. All S.13 cases halted

(See update at bottom)
In a ruling dated May 26, 2010, Tribunal Member Edward Lustig adjourned a Section 13 complaint file by the Canadian Jewish Congress against Henry Makow until a final decision in the Lemire case.


[8] I have reviewed the submissions of the parties and have concluded that it would be appropriate and would properly serve the interests of justice if this matter was adjourned. While the Supreme Court of Canada has ruled in Canada (Human Rights Commission) v. Taylor, 1990 3 S.C.R. 892 that s. 13 (1) of the CHRA is constitutional, the application now before the Federal Court seeks to bring clarity to this issue in view of the distinct factual and legal context giving rise to this Tribunal's decision in Warman v. Lemire. Clearly Member Hadjis' decision goes beyond the consideration alone of the penalty provisions in s. 54 of the CHRA, as he chose not to "read out" the penalty provisions and preserve s. 13 of the CHRA. It is now up to the Federal Court to determine the operability of s. 13 of the CHRA. This will achieve the clarity that the Commission has indicated and that I agree is desirable in order to allow the Tribunal to be able to determine this and other cases brought under s. 13 of the CHRA.

[9] For these reasons I hereby adjourn these proceedings sine die pending the final outcome in the Warman v. Lemire case.

"Signed by"
Edward P. Lustig
OTTAWA, Ontario
May 26, 2010



What this decision means is that the Canadian Human Rights Tribunal has stopped holding hearings on alleged violations of Section 13 of the Canadian Human Rights Act.  Basically, enforcement of Section 13 has now stopped!

To understand how important today’s ruling was, here is a bit of background of censorship regime used by the “human rights” enforcers.

Canada’s Internet censorship legislation is broken up into two distinct parts. 

1.     Canadian Human Rights Commission
The first part is run by the fanatics at the Canadian Human Rights Commission (CHRC).  They accept complaints from the public, investigate them and send them onto an “impartial” Tribunal to determine if the person actually violated the act.  (unless of course you’re a hate promoting friend of the CHRC, in which case, they toss out the complaint).  Only the CHRC can send a case to the Tribunal.  There is no direct access method.

2.     Canadian Human Rights Tribunal
The second part is a hearing before the Canadian Human Rights Tribunal (CHRT).  The Tribunal operates basically as a pseudo-court, and makes determinations on all issues before it.  The hearing process is sort of free wheeling and made up as they go along.  At the Tribunal basic human rights mean little.  For instance, Truth is No Defence – intent is no defence.  The complainant doesn’t even have to show up at his own hearing.

Think of it this way.  The CHRC are the prosecutors and the CHRT are court.

What today’s ruling means, is that the CHRC will continue on in their mission of fanatical censorship and totalitarianism, BUT when the CHRC refers a case to the Tribunal, the Tribunal will adjourn the case “sine die”, until a final decision is reached in the Lemire case.   That final decision might end up at the Supreme Court of Canada, and take up to 6 more years.

There is one other high profile case currently before the Tribunal. This is the case of B’nai Brith and Harry Abrams vs the Radical Press and Author Topham.  It is expected that a decision will be released shortly also adjourning this case “sine die” pending the final outcome of the Lemire case.

By stopping the Tribunal hearings, the CHRT has signaled that it will not be putting respondents through a lengthy meat grinder like prosecution at the behest of special interest groups.

The Tribunal member is this case was Edward Lustig.  He came to light in a recent ruling in the Ouwendyk case, where he slammed Serial complainant Richard Warman.

In his March 13, 2009 ruling Lustig found that:

“Moreover, it is possible that his activity in this regard, could have precipitated further hate messages in response. His explanation for including other hate messages in his postings by mistake seems very weak to me.

The evidence in this case of his [Richard Warman’s] participation on Internet sites similar to the Northern Alliance site is both disappointing and disturbing. It diminishes his credibility.”


In today’s decision, the Tribunal also left a nice parting shot on the CHRC.  Tribunal member Lustig used the CHRC’s own press release against them to stop enforcement of Section 13.



NO SURRENDER!
-Marc Lemire





------------------------------------
CANADIAN HUMAN RIGHTS TRIBUNAL  
TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE




Canadian Jewish Congress
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
Henry Makow
Respondent
RULING
MEMBER: Edward P. Lustig
2010 CHRT 13
2010/05/26
 
[1] This is a ruling concerning a motion by the Respondent dated September 4, 2009 for an adjournment of this matter sine die.

[2] The complaint in this matter was filed by the Complainant on January 29, 2007. The complaint alleges that the Respondent communicated messages over the internet that were likely to expose members of the Jewish community to hatred or contempt by reason of their membership in an identifiable group contrary to s. 13 (1) of the Canadian Human Rights Act (the "CHRA"). The complaint alleges that the impugned conduct occurred in a manner that was ongoing.

[3] On September 16, 2008, the Commission, pursuant to s. 44 (3) (a) of CHRA requested the Canadian Human Rights Tribunal (the "Tribunal") to institute an inquiry into the complaint.

[4] On September 2, 2009 the Tribunal released its decision in the matter of Warman v. Lemire, 2009 CHRT 26. That case involved a complaint under s. 13 (1) of the CHRA. In his very comprehensive decision, Member Hadjis concluded:

"... I have also concluded that s. 13 (1) in conjunction with ss. 54 (1) and (1.1) are inconsistent with s. 2 (b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit within the meaning of s. 1 of the Charter."

[5] On October 1, 2009, the Commission applied to the Federal Court for judicial review of the Tribunal's decision in Warman v. Lemire (See FC file no. T-1640-09).

[6] In its public release commenting on its application for Judicial Review dated October 1, 2009, the Commission commented as follows:

"The Commission applied for Judicial Review so that technical but important legal issues raised by the decision can be clarified. These issues go beyond this particular case and could have an impact on other administrative tribunals. As a result, the uncertainty created by the decision is not in the public interest and merits a binding decision by a higher court.

The application is based on two grounds. It is the Commission's view that:

1. The Tribunal erred in law when it found that the manner by which the applicant exercises its statutory mandate could render section 13 of the Canadian Human Rights Act unconstitutional; and

2. The Tribunal's findings of unconstitutionality also resulted from the adoption of subsections 54 (1) (c) and (1.1) of the Canadian Human Rights Act, subsequent to the Supreme Court of Canada's decision in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. The Tribunal erred in law when it refused to apply section 13 of the Act because a refusal to apply subsections 54 (1) (c) and (1.1) would have provided a sufficient remedy in respect of this ground."

[7] The parties filed with the Tribunal submissions with respect to the Respondent's motion for an adjournment. It is to be noted that the motion was filed prior to the Commission's application for Judicial Review in the Warman v. Lemire case.

[8] I have reviewed the submissions of the parties and have concluded that it would be appropriate and would properly serve the interests of justice if this matter was adjourned. While the Supreme Court of Canada has ruled in Canada (Human Rights Commission) v. Taylor, 1990 3 S.C.R. 892 that s. 13 (1) of the CHRA is constitutional, the application now before the Federal Court seeks to bring clarity to this issue in view of the distinct factual and legal context giving rise to this Tribunal's decision in Warman v. Lemire. Clearly Member Hadjis' decision goes beyond the consideration alone of the penalty provisions in s. 54 of the CHRA, as he chose not to "read out" the penalty provisions and preserve s. 13 of the CHRA. It is now up to the Federal Court to determine the operability of s. 13 of the CHRA. This will achieve the clarity that the Commission has indicated and that I agree is desirable in order to allow the Tribunal to be able to determine this and other cases brought under s. 13 of the CHRA.

[9] For these reasons I hereby adjourn these proceedings sine die pending the final outcome in the Warman v. Lemire case.

"Signed by"
Edward P. Lustig
OTTAWA, Ontario
May 26, 2010


PARTIES OF RECORD


TRIBUNAL FILE:


T1330/6008
STYLE OF CAUSE:
Canadian Jewish Congress v. Henry Makow
RULING OF THE TRIBUNAL DATED:
May 26, 2010
APPEARANCES:

Igor Ellyn
For the Complainant
Daniel Poulin / Sheila Osborne-Brown
For the Canadian Human Rights Commission
Barbara Kulaszka
For the Respondent
 


UPDATE:
The case against Authur Topham and the Radical Press has been adjourned Sine Die also.