The Canadian Free Speech League has just filed at the Federal Court of Canada for intervener status in the Lemire Constitutional Challenge of Internet censorship.
The CFSL, represented by Douglas Christie, was an active participant during the Lemire hearing before the Canadian Human Rights Tribunal. Mr. Christie made some very good submission and was a tough cross-examiner of witnesses brought by the Canadian Human Rights Commission and the Attorney General of Canada.
The CFSL will bring a unique perspective to the Federal Court and their submissions on freedom of speech and abuse of the Canadian Human Rights Commission will be a great benefit to the Federal Court, who are now reviewing the constitutionality of Internet censorship in Canada (Section 13 of the Canadian Human Rights Act). The Federal Court has been asked by the CHRC to judicially review the landmark decision of the Tribunal which exonerated Marc Lemire, and found Section 13 to be unconstitutional and a violation of the Charter of Rights and Freedoms.
Here are some of the submissions by the Canadian Free Speech League. A decision by the Federal Court is expected over the summer. They have requested an Oral hearing in July to deal with a series of outstanding motions.
WRITTEN REPRESENTATIONS OF THE CANADIAN FREE SPEECH LEAGUE
(ON THE CONSTITUTIONALITY OF SECTION 13(1) AS AMENDED IN SUPPORT OF A MOTION TO INTERVENE PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES)
The following submission indicates the direct and extensive involvement of the Canadian Free Speech League at the Canadian Human Rights Tribunal Lemire hearing itself and manifests a firm grasp of the salient facts for the constitutional issue in question, which other intervenors not present at the hearing do not possess. The following is the proposed argument of the Canadian Free Speech League, if allowed to intervene.
B) FREE SPEECH IS SUDDENLY THE ISSUE
1. The recent public furor over the complaint launched against Mark Steyn and Maclean’s magazine serves to demonstrate the political use and maximum impact on the people who would never want it applied to them. It is in the public domain and open to consideration on a section 1 analysis to show what does or does not achieve the Oakes Test of rationality, proportionality, and minimal impairment of the section 2(b) rights of all citizens.
2. What was section 13(1) according to the Canadian Human Rights Act?:
13(1): “It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.”
3. The history of section 13(1) is worth remembering. The original case of John Ross Taylor, which I took to the Supreme Court of Canada, involved an old man in his 70s who used to record messages on his telephone answering machine and then hand out notes suggesting people call his number. His messages included commentary on news of the day or banking, money and Social Credit monetary theory, as well as the origins of the Bolshevik Revolution.
4. Few if any other than CHRC members would hear the messages. Unrepresented,
5. The Commission charged him again, claiming that the messages contained the “same theme.”
6. On one side, against section 13(1), were John Ross Taylor and I. On the other were the Canadian Human Rights Commission, the Attorney General of Canada, the Attorneys General of Ontario, Quebec and
7. I argued that section 13(1) is invalid, as it is a breach of freedom of speech. Furthermore, it provides no defence of truth, indeed makes truth irrelevant. It allows no defence of fair comment upon matters of public interest, such as the Bolshevik Revolution. 13(1) allows no defence of honest good faith, religious opinion. I argued that 13(1) is vague because “hatred, contempt or ridicule,” which are the prohibited effects, are not empirically verifiable but are merely subjective emotions and are devoid of any objective verification. The complaint is proved if the person of group is merely “exposed” to such emotions as hatred, contempt or ridicule. This in effect requires no evidence, only believed exposure, which is self-justifying. The appeal was lost 4-3. Justices Dickson, Wilson, L’Heureux-Dubé and Gonthier voted to uphold section 13(1); Justices La Forest, Sopinka and McLachlin decided against. John Ross Taylor was imprisoned for several months for basically his views of history, revolution and banking. The media reacted either with applause or silence.
8. It was my contention before the Supreme Court that section 13(1) was a slippery slope where hurt feelings were all that was necessary. Everybody wanted a bite out of the apple of free speech until there would be nothing left. We would be told the seeds of the apple are poison. Section 13(1) remains the law. It is the primary tool used to suppress free speech in
9. Taylor remains the only occasion section 13(1) of the Canadian Human Rights Act was constitutionally upheld by the Supreme Court. The fact that tribunals have extended the
10. Neither the Zündel case nor the Machiavelli case was subject to constitutional judicial review of any kind as to the validity of the enabling legislation. There is no judicial authority from the new and amended Section 13(1) except that of the Tribunal itself, which could not be reasonably expected to limit its own jurisdiction. So Section 13 of the Canadian Human Rights Act, as amended after Taylor and as presented in this particular argument, has never been judicially upheld by anyone but the Canadian Human Rights Tribunal in Citron v Zündel and Schnell v Machiavelli. It is not abuse of process to raise a serious challenge on new evidence to a new law that has been presented by the Respondent involving new and credible expert witnesses. This is something, which was never produced by the Respondent in
12. Specifically, the Court observed in agreement with Dr. René-Charles Ravault, (paragraph 78), “The telephone is ideally suited to the effective transmission of prejudicial beliefs”; “The combination of the telephonic medium and the material is, we believe, particularly insidious, because it is one which gives the listener the impression of direct, personal, almost private, contact by the speaker, provides no realistic means of questioning the information or views presented and is subject to no counter-argument within that particular communications context.”
13. Paragraph 79: “The evidence…suggests that hate propaganda often works insidiously to spread a message of intolerance and inequality, and that the telephone is particularly suited to this mode of communication.
14. Paragraph 80: “I thus think it is misleading to conflate the discussion to the point where all one sees is the telephone’s position as an apparatus used for private communications and hence mistakenly conclude that Section 13(1) suppresses messages which do little to promote the harms caused by hate propaganda.”
The foregoing quotes in paragraphs 78, 79, and 80, demonstrate the narrow issue which was being considered in Taylor.
15. Having made so much of the insidious nature of the telephone in
16. The proponents of the silent society first immersed themselves in the particular means of communication in Taylor to narrow the effect of the legislation to the specific medium of telephone answering machines, but now they pretend Taylor is authority for the right to censor the Internet. This preposterous notion has never been upheld by the courts.
17. The enemies of free speech always insist on moveable goalposts. Narrow here, so it defeats the accusation of overbroad legislation and broad there so it catches the Internet. Hate is equally elastic: broad enough to catch “Nazis and anti-Semites” but not too narrow to catch those who expose Muslims to “hate.”
18. In Taylor, the interveners for various Attorneys General of Canada and the provinces, Jewish groups, women’s groups and Holocaust groups, all agreed that the laws should be upheld. The Canadian Civil Liberties Association has also since supported the existence of Section 13(1). But history has now come full circle. The error of
19. After Section 13(1) was extended to the Internet, Ernst Zündel was prosecuted for Ingrid Rimland’s website in the United States of America. Thus we saw the Tribunal given the power to regulate foreign websites because a Canadian resident might be the subject of it and possibly have provided some information for it. The fact that Parliament, as part of the anti-terrorism legislation, extended Section 13(1) to the Internet is highly relevant to a Section 1 analysis. The
20. To accept that no criticism based on race, religion, or ethnic origin is ever possible is to deny the value of such criticism where on the Internet as opposed to the telephone, an abundance of opposing views are always available just as readily as the criticism and most groups and individuals can create a visible reply.
21. In the complaint against Maclean’s magazine, the accused before the Commission is has available what the bloggers call “real lawyers.”
22. In conclusion, when censorship law is made against unpopular people to censor their views, it is only a matter of time before the powers run into their own restraints, and then free speech becomes the issue. Today it is the Muslims that complain. Free speech is now the issue. As the Talmud says, “It depends on whose ox is gored.”
C) EXPERT OPINION EVIDENCE RESPECTING THE NECESSITY OF THE LEGISLATION IN QUESTION
23. We have, for the first time, introduced evidence contrary to that of Dr. Kaufmann which was placed before the Cohen Commission and Professor Ravault. And for the first time, someone independent and someone detached from the alleged victim groups has produced an opinion in the form of Dr. Persinger and Dr. Downs. These two experts were opposed to and countered by Dr. Mock who was called on behalf of the supporters of the legislation.
24. In weighing the effect of expert opinion evidence, it cannot be denied that Dr. Mock is very much an advocate for the legislation and a participant in one of the alleged victim groups, being in the employ of, for a period of time, B’nai Brith. The opinion evidence contrary to the necessity of this legislation and demonstrating its counterproductive nature from Dr. Persinger and Dr. Downs was persuasive. These two experts have no axe to grind and are clearly not as was the case with Dr. Tsesis involved in the process of rationalizing on behalf of the Jewish cause. If this legislation is objectively perceived as being the special preserve of Jewish groups, it can only add to the sense of indignation and eventual Anti-Semitism, which the legislation is designed to prevent. They will in effect, have demonstrated by maintaining the legislation with such biased witnesses, that it is specifically designed for Jewish groups, by Jewish groups.
25. From the complaint raised by Muslims against Maclean’s and Mark Steyn, it is now clear that special interest groups can use this legislation against their political enemies. Suddenly free speech is an important issue. There is irony in the Maclean’s and Mark Steyn dispute. The position is taken by those who advocate this legislation that it should not apply to people like Steyn and Maclean’s magazine. If the complaint fails, it will be perceived as all the more a piece of legislation designed for Jewish interests. Criticism is appropriate in a free and democratic society. There is ample protection in other sources of legislation, both for any acts of violence or any forms of misconduct such as mischief or vandalism.
26. The recent dismissal on the complaints against Mark Steyn and Maclean’s magazine demonstrates that the legislation is capable of political abuse. It is now obvious that where the Complainant is a disadvantaged group and the Respondent is a powerful, popular, or well-funded individual, the complaint will either be withdrawn or dismissed by the Commission and never go to a hearing. This has in fact, demonstrated how the legislation is really a political instrument of oppression, useful only against the weak, vulnerable, disadvantaged, and unpopular. This further demonstrates why the legislation is an abuse of the courts and the legislative powers given to the Commission and the Tribunal are dangerous to freedom of expression, in a way not contemplated in the cases of Keegstra or John Ross Taylor.
27. The dismissal of the complaint against Mark Steyn and Maclean’s magazine may be temporary protection for the “favoured” groups over the “unfavoured” groups, but it will, in the long run, produce the effect of being useful as a means of political oppression against those who desired the creation of the legislation in the first place.
28. The argument which was made first in Keegstra, repeated in John Ross Taylor, and manifested here by the Canadian Free Speech League through this argument, is all the more cogent today. The restrictions on free speech imposed by Section 13(1) are a slippery slope which will eventually work to the disadvantage of those who are now advocating it. Eventually there will be silence of all criticism of any group identified under the prohibited grounds. The government should not legislate against criticism of any sex, sexual orientation, or religious, racial, or ethnic group. To begin the process of legislating against opinions, no matter how bizarre, is to assume that judges can do what the vast majority of citizens cannot in regard to matters of common knowledge or commonsense. In any society, much less in a democracy, such an assumption would be foolish.
29. In contrast, to the dispassionate, objective, empirical observations of Dr. Downs and Dr. Persinger, it was obvious that Dr. Mock has concluded a priori, that she has the power, or ought to have the power to be able to identify, those who need to be silenced. She said at Vol. 12, p. 2334: “Because many of the Internet service providers themselves are hate mongers or they had their own prejudiced attitudes towards minority groups …. we need something to send this strong message and have the deterrent effect …” A person with such attitudes, deems it within their capacity to define hate mongers and prejudiced attitudes by reference to her own criterion. This is the very nature of censorship and demonstrates the act of intolerance in the name of tolerance.
30. The expert evidence from Dr. Downs and Dr. Persinger should be seen as the manifest expression of the best interest of society. It demonstrates the unnecessary nature of this legislation. The legislation addresses problems which are truly hypothetical since there is no evidence of actual danger to any of the alleged target groups in the website of Marc Lemire. This legislation is not against real threats, or anything that exists….
31. The argument that we need to “stop the violence” is detached unfounded since there has been no evidence of violence in regard to the case of Marc Lemire, nor is it necessary under Section 13(1) to establish any connection between any violence and any statement subject to prosecution under the section.
D) THE OPERATION OF THE SECTION 13(1) INVESTIGATIONS CURRENTLY DEMONSTRATE THE BREACH OF SECTION 7 OF THE CHARTER
32. The exchange of information by the Canadian Human Rights Commission is of particular interest to the Section 7 argument. It will be contended that Section 13(1) of the Canadian Human Rights Act has created powers on the part of the Commission which are clearly in breach of Section 7 and are conducive to a police state. The way section 13 has been interpreted and is now functioning indicates the danger of the section. Dean Stacey and Harvey Goldberg, by their own evidence, have communication with the Canadian police authorities. The Canadian police authorities have powers of search and seizure of computer hard drives under Section 319(2) of the Canadian Criminal Code. Once seized by the police, the Commission requests copies of the hard drive and claim exemption under privacy law as an exempt organization. The police deliver the hard drives as they desire to help the Commission.
33. Section 7 deals with fundamental justice. It should be obvious that the foregoing practice enabled by Section 13 is contrary to fundamental justice and has been used to police thought, belief, and opinion in a totally new way. Not only is the opinion or belief being restricted contrary to Section 2(b) as alleged by the Respondent, in the conduct of the investigation by entirely legal means arising out of the section, the private information of an individual is delivered to their ideological and political enemies. This latter process, fully sanctioned by the legislation, is a serious breach of Section 7, unsaved by Section 1 of the Charter of Rights and Freedoms. No crisis of Internet communication is so serious as to make demonstrably justifiable the extraction of private information against the will of the subject and distribution to one’s enemies. This might well and often does include: private emails, private memoranda, pictures of friends and family, personal telephone numbers, genealogical records, abstract writing, fictional literary drafts, reference to judgments on persons and things, unpublished thoughts and comments of a private nature, sexual fantasies, or private and legal pornography – anything a person might not want to disclose to others. Section 13(1) allows access to such private material both by cooperation with police and by the Commission itself.
34. To suggest that what may exist on the Internet or on a computer is so inherently dangerous that all of the foregoing must legally be available to Commission, is to render privacy or freedom of though concepts of no significance if you are the subject of a Human Rights complaint, sometimes motivated by a political ideology. The Stasi or the Inquisition would have relished such powers. The essence of the Section 1 justification, if attempted to this aspect of the breach of Section 7, would render the words “Free and Democratic Society” meaningless. We would have, by the means of Section 1, created a police state and transferred those powers to a commission which is unrestricted by any judicial scrutiny by the Tribunal. The specialized knowledge of the Tribunal only relates to matters within the scope of their act. They do not encompass all Section 7 concerns under the Charter.
35. Rationality, being rationally connected to the objective of a hate-free society, is by no means achieved by giving unedited private information to a commission which distributes it to a complainant. Proportionality, or limiting rights as little as possible, is equally deficient when using police sources, information, and search powers under the Criminal Code to extract information of a purely private nature. This is particularly so where as in the Kulbashian and Bahr cases, the criminal prosecutions are abandoned once the Tribunal order is made. Double jeopardy is avoided, but the police power serves the Commission. This clear breach of fundamental justice demonstrates how the Section 13(1) powers are open to abuse. On the contrary, they are far more likely to be expanded in new and different ways. Nothing is so subsistent a danger to society so as to justify conscripting one’s entire private and personal records against one’s self and delivering it to one’s worst enemy. Although such a situation was never foreseen, much less discussed in the
36. The effects of Section 13(1) in addition to being a breach of Section 2(b) in their result, are in the process enabled by Section 13(1), a breach of Section 7, not saved by Section 1 and should be rendered inoperative by Section 52.
37. In conclusion of this argument, the application of section 13(1) investigations has made possible a police state which is unjustifiable in a Free and Democratic Society using the Oakes Test. Thus, a breach of Sections 7 and 2(b) occurs, clearly pointing to the emergence of a police state inconsistent with Canadian values in pursuit of a mythical enemy.
E) TRUTH IS NO DEFENCE
38. It is of particular interest to the Canadian Free Speech League that as Tribunal Chairman, Claude Pensa pronounced in the Zündel case at the Complaint of Sabina Citron, truth is no defence to a Section 13(1) complaint. This, as well as the absence of fair comment, religious belief, or the defence removal of hate against another group, is a serious limit on free speech. In the Taylor case, this was allowed because the telephone answering device was one-way communication as well as the fact that the only expert considered was a Professor Kaufmann and the Cohen Commission Report or Professor Ravault. The evidence before this tribunal was vastly different from that of
39. In particular, Dr. Tsesis was asked a very important question in regard to his evidence [Vol 16, p. 3546, line 15]:
Q: (Mr. Christie) - “I still want you to tell me how you can have a rational discussion about the nature of any expression unless you assess the truth or falsity?”
A: (Dr. Tsesis ) – “I think it is a critical part of the assessment, yeah.”
Q: (Mr. Christie) – “Yeah, so do I. How can you have a rational discussion about the effect of any expression unless you discuss its truth or falsity?”
A: (Dr. Tsesis ) – “I think it would only be logical for a court to inquire into its truth. [Vol 16, p. 3546, lines 11-24].
However, as Tribunals have repeatedly found, consistent with section 13(1) as enacted, truth is not relevant or admissible.
F) COMMENTARY ON THE EVIDENCE REGARDING TRUTH
40. Not only did Dr. Downs and Dr. Persinger demonstrate clearly the danger of removing truth as a defence, but the State’s own witness, Dr. Tsesis, admitted that truth is a critical part in the assessment of both the nature of the statement and its effect.
41. To sum it up, truth cannot be hate. The court, or in this case, the Tribunal, has to decide truth, but we all know as we read Section 13(1) and the various opinions on it from Claude Pensa in the Zündel case and others, truth is not allowed into the assessments. Therefore, the Commission’s own witness confirms that the section excludes from consideration, the truth of the statement, an essential element in the assessment of its effect. In this sense, the section contravenes the Oakes Test because it is not rationally connected to its objective. The section prohibits both true and false statements based on their effect, and the bad effect is only possible if the statement is false. Truth has no bad effect. Truth has never promoted hate, although it has often been the victim of it. The section fails the Oakes Test on the evidence from proponents of the legislation through the mouth of their own witness.
42. The testimony of Dr. Tsesis also claims that parts of the Bible should be prohibited. He refuted parts of the Book of John which would be viewed by him as Anti-Semitic, and of Leviticus which could be homophobic. This demonstrates how the section suffers from lack of connection to its objective which is societal benefit and the proportionality test because it would and does, prohibit what may be morally correct expressions of opinion on the most important of subjects, namely religious truth. This demonstrates why Section 319(2) in order to be a rational and proportional limit on free speech, has to allow for a religious freedom defence, which it does. Even Dr. Tsesis agreed that you have to assess the purpose of the speaker “whether it is negligent, knowledgeable, or purposive”, though he said it is “the mind of the ordinary person which needs to be considered” [Vol. 16, pp. 1382-1383].
43. In dealing with issues of history, Dr. Tsesis claimed expertise, but he had to admit that if statements were simply true, then you did not have stereotype. You did not have the expression of hatred [Vol. 16, pp 3568-3569]. This serves to demonstrate that Section 13(1) requiring no evidence of falsity, allowing no defence of truth, providing no excuse of negligence, making no allowance for bona fide religious expression, making no allowance for fair comment and requiring no element of intent, was not a reasonable limit satisfying the Oakes Test. His own testimony, the only witness other then Dr. Mock, a B’nai Brith employee, does not support the rationality or proportionality of the legislation as a limit on free speech. No such cross-examination of experts assisted the Court in the
G) DR. TSESIS ON “WHAT IS HATE?”
44. Dr. Tsesis does not agree with the Supreme Courts definition of hate (because it is so vague). That definition in the Keegstra case was: “intense dislike”. When asked “what is hate – is it intense dislike?” Dr. Tsesis replied:
“I am talking about something that is affective, something that has a substantial likelihood of causing discrimination, persecution, or physical harm on – within the context, that has to be determined on a case by case basis.” [Vol. 16, pp. 3605-3606].
45. This analysis renders opinion knowledge of offence impossible because it is only an expert opinion on a case by case basis that the determination can be made. If limits on free speech can only be determined by experts on a case by case basis, one’s free speech is unreasonably restricted by lack of expert knowledge.
46. Dr. Tsesis did not deny that countries without hate speech legislation had fewer hate crimes, although he was aware of it. He simply had not investigated it: “Well, I think that is a great question, and I – simply not one that I’ve studied” [Vol. 16 p. 3625].
47. Dr. Tsesis wanted the First Amendment repealed as it applied to hate speech and he did not agree with RAV v. Minnesota in the U.S. Supreme Court [Vol. 16, pp. 3666-3667].
48. Karen Mock, the other Commission expert supporting Section 13(1) of the CHRA was a director for B’nai Brith for 12 years and had issued reports naming Marc Lemire as an Anti-Semite [Vol. 16, p. 2131].
49. Karen Mock was responsible for calling Imre Finta, “a Nazi war criminal” as late as 2006, even though she knew he was acquitted in 1990 right up to the Supreme Court of Canada. By this remark and those previously mentioned, she is really not an expert, but an advocate for her Jewish cause, B’nai Brith, and is not appropriately objective to be given credibility. To insist on calling someone the very inflammatory and defamatory term “Nazi war criminal” when he has been tried and acquitted of war crimes and never was a Nazi, is really symptomatic of the partisan nature of Section 13(1) in its use and application.
50. Even Dr. Mock had to admit that in a Section 13(1) analysis to determine breach, the question had to be addressed: “is it lies that are being promoted?” There is an extensive evaluation [Vol. 15 p. 3141, line 6].
51. I asked Dr. Mock: “In the assessment of whether a statement is contempt or criticism, isn’t it necessary to hear what evidence they have for the truth of the statement, to make an assessment was to whether it is objectively true or not?”
Dr. Mock: “Yes, it usually is.” [Vol. 15, p. 3145, lines 9-14].
52. Clearly Dr. Mock also had to admit that evidence as to truth is necessary, but Section 13(1) makes no such provision, thus demonstrating the section is not rationally connected to its objective which should only be to limit contempt – not criticism based on evidence.
53. For all of the foregoing reasons and those of the Respondent which I adopt in part, it is respectfully submitted that the legislation does not meet the Oakes Test as a reasonable and justifiable limit and breaches Section 2(b) and Section 7 in a way which should result in that section being declared inoperative pursuant to Section 24(1) or Section 52 of the Constitutional Act of 1982.
H) CONCLUSION ON THE UNIQUE, VALUABLE SUBMISSIONS WHICH COULD BENEFIT THE COURT’S ANALYSIS BY INTERVENTION IN THE PRECEDING 70 PARAGRAPHS
54. From the foregoing submissions in the preceding 70 paragraphs which were placed before Member Hadjis, it is obvious that the Canadian Free Speech League has a unique position to offer in that it was directly involved in the cross-examination, observation, and preparation of submissions upon the evidence heard in the Lemire case at the Tribunal level. This is not something which was available to other intervenors, specifically, the British Columbia Civil Liberties AND Canadian Civil Liberties Associations. Therefore, it is submitted that the Canadian Free Speech League has a unique perspective, unlike any other intervenor.
55. It is also the intention of the Canadian Free Speech League, if allowed intervention, to raise the unique perspective of analysis of the words “Communicate” or “Communication,” which will demonstrate that the Internet is not appropriately caught by the wording of section 13(1) as it stands, and that the extension of section 13(1) to the Internet cannot be, and has not been properly legally accomplished in any case so far, including the Lemire case, when one does a thorough, proper, and appropriate analysis of the words “Communicate” or “Communication, as found in existing jurisprudence, common law, common sense, or any dictionary.
56. It will be the intention of the Canadian Free Speech League to advance the argument that posted material on the Internet does not communicate, but merely is made available through the Internet, and the communication can only be accomplished in any practical or legal sense, by the intervention of someone seeking that information beyond the knowledge, consent, and control of the person making it available in the first place.
57. It will be the intention of the Canadian Free Speech League, if allowed to intervene, to demonstrate by argument, that by definition, the words “Communicate” or “Communication” cannot be accomplished by means of the Internet, except through the intervention of the complainants’ actions themselves. It was and is an unconstitutional, unreasonable, ambiguous, overly broad, and now, multifarious piece of legislation which has no part in a proper legal construct of reasonable limits under section 1 of the Charter of Rights and Freedoms, and therefore, should be struck down and declared of no force and effect.
(The above submissions were edited by Marc Lemire. Please refer to original text for the complete submission of the Canadian Free Speech League)