Thursday, January 28, 2010

NATIONAL POST: Chair's ruling on Section 13 incorrect: rights body



Chair's ruling on Section 13 incorrect: rights body
Facing appeal

Joseph Brean, National Post

Canadian Human Rights Tribunal chairman Athanasios Hadjis over-stepped his authority and erred in law when he declared Section 13, Canada's controversial hate speech law, violates the Charter right to free expression, according to the Canadian Human Rights Commission.

Mr. Hadjis's decision to acquit far-right webmaster Marc Lemire last fall after a six-year hate-speech case brought by activist lawyer Richard Warman is the subject of an upcoming appeal in Federal Court, brought by the CHRC.

A major factor in Mr. Hadjis's decision was that Mr. Lemire immediately removed the offending material on learning of the complaint, but Mr. Warman rebuffed efforts at conciliation, and the CHRC continued to push the case toward a tribunal hearing.

In a memorandum filed with the court, CHRC lawyer Margot Blight argues that the manner in which the CHRC pursues hate speech is "irrelevant" to the constitutionality of the law that forbids it, Section 13(1) of the Canadian Human Rights Act.

"Any question as to whether the Commission's process is sufficiently conciliatory to meet the requirements of the Charter is outside the Tribunal's jurisdiction," the memo reads.

Ms. Blight also argues that the proper course of action, based on Mr. Hadjis's reasoning, was to "sever and refuse to apply" Section 13's penalty provisions, not declare the whole thing unconstitutional.

Mr. Warman, a former employee of the CHRC, brought a complaint against Mr. Lemire in 2003, after monitoring his website for almost a year.

He alleged that postings on the discussion forum, mostly written by other people, contravened Section 13 in that they were "likely to expose" identifiable groups to "hatred or contempt."

In all but one case, Mr. Hadjis decided that these postings either did not contravene Section 13, or that Mr. Lemire cannot be held responsible for what others posted on his website.

In the final case, Mr. Hadjis decided that a racist and homophobic article by a U.S. neo-Nazi called "AIDS Secrets" did violate Section 13, but because he also found the law itself unconstitutional, he declined to make any order. [See Lemire’s response to the “Aids Secret” article]

His decision did not invalidate Section 13 -- only a court or Parliament can do that --but it did suggest the need for high-level clarification. The Supreme Court of Canada last upheld Section 13 as a justifiable limit on free expression in 1990, in part on the basis of its remedial and non-punitive purpose. Eight years later, the penalty provision was added by Parliament, allowing for fines of $10,000.

Mr. Hadjis decided this amendment means Section 13 "can no longer be considered exclusively remedial, preventative and conciliatory in nature."

In the factum, Ms. Blight argues that the activities of the CHRC in pursuing its hate speech mandate were not properly before him for judgment. And even if his reasoning about penalties is sound, he failed to consider two other options: an order against Mr. Lemire to cease the discriminatory practice, or a compensation payment to the complainant, Mr. Warman.  [I am not sure where Brean is getting this stuff about a compensation payment to Warman.  There is not a single word about Warman in the CHRC’s factum.  And the CHRC did not request any penalty against Lemire at the Tribunal.  In fact the CHRC has admitted that the fine provision of the Canadian Human Rights Act is unconstitutional]

Having concluded that Mr. Lemire violated Section 13, the factum states, "the Tribunal was obliged to turn its mind to [an order or compensation], and determine whether one or more of the remedial orders described therein ought to be made in the circumstances. It is submitted that the matter ought to be remitted to the Tribunal for that purpose."  [This is not about compensation; it is actually about the Tribunal issuing a life time speech ban against Lemire]



On September 2 2009, the Canadian Human Rights Tribunal acquitted Marc Lemire of all but 1 posting, and found that Section 13 and 54 was unconstitutional!



Warman/CHRC Allegation
Result?

JRBooksonline Website
Acquitted!

Stormfront Posting
Acquitted!

Messages posted on the Freedomsite message board by Craig Harrison
Acquitted!

Messages posted on the Freedomsite message board by persons other than Mr. Lemire or Mr. Harrison
Acquitted!

Messages posted on the Freedomsite message board by Mr. Lemire
Acquitted!


The “Controversial Columnists” section of the Freedomsite website

The Doug Collins Column
Acquitted!

“Ottawa is Dangerous” Article
Acquitted!

AIDS Secrets column


[279] This question, however, is not what is relevant to the present discussion. The point is that, when assessed against the characteristics of the penalty provisions enumerated in these decisions, it is evident that s. 13(1) has become more penal in nature (irrespective of whether s. 11 Charter rights are necessarily triggered). The provision can no longer be considered exclusively remedial, preventative and conciliatory in nature, which was at the core of the Court’s finding in Taylor that s. 13(1)’s limitation of freedom of expression is demonstrably justifiable in a free and democratic society, and thereby “saved” under s. 1 of the Charter.


[290] Thus, following the reasoning of Justice Dickson, at 933,one can no longer say that the absence of intent in s. 13(1) “raises no problem of minimal impairment” and “does not impinge so deleteriously upon the s. 2(b) freedom of expression so as to make intolerable” the provision’s existence in a free and democratic society. On this basis, I find that the Oakes minimum impairment test has not been satisfied, and that s. 13(1) goes beyond what can be defended as a reasonable limit on free expression under s. 1 of the Charter.


c) Conclusions with respect to the claim of infringement on the freedom of expression

[295] For all the above reasons, I find that s. 13(1) infringes on Mr. Lemire’s freedom of expression guaranteed under s. 2(b) of the Charter, and that this infringement is not demonstrably justified under s. 1 of the Charter.


V. CONCLUSION
I have determined that Mr. Lemire contravened s. 13 of the Act in only one of the instances alleged by Mr. Warman, namely the AIDS Secrets article. However, 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. Since a formal declaration of invalidity is not a remedy available to the Tribunal (see Cuddy Chicks Ltd. V. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5), I will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial order against him (see Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at paras. 26-7).







It’s time to end the censorship of the extremist Canadian Human Rights Commission!
 

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Tuesday, January 26, 2010

Canadian "Human Rights" Censors file at the Federal Court of Canada to keep their precious censorship franchise



Canadian "Human Rights" Censors file at the Federal Court of Canada to keep their precious censorship franchise

Constitutional Validity of Section 13 moves to Federal Court



Using tax-payers money, the Canadian Human Rights Commission has finally filed their challenge to the Lemire decision, which found that the thought control legislation of the Canadian Human Rights Act is unconstitutional and a violation of the Charter guaranteed rights to freedom of speech and thought.
  

filed by the Canadian Human Rights Commission

 The CHRC's Memorandum of Fact and Law, will be vigorously challenged by supporters of freedom of speech.  Section 13 is Canada's shameful thought control legislation, and a positive ruling by the Federal Court of Canada, will finally end the 33 year reign of totalitarian censorship by the out of control Canadian Human Rights Commission.
 To date, the Attorney General of Canada, has refused to get involved at the Federal Court of Canada to uphold Section 13.   The Attorney General of Canada (assigned to Lemire case by then governing Liberal Party) was active while the case was before the Canadian Human Rights Tribunal, but once the Tribunal ruled the law was unconstitutional, the Attorney General accepted the decision. 
 According to an Access to Information request filed by Marc Lemire, in late 2009, the Department of Justice raised the issue with the Prime Minister of Canada and his cabinet.  While the actual discussion is censored due to being in the "confines of the Queen's Privy Council" it is clear that the Conservative Prime Minister and his cabinet ruled to not uphold this censorship legislation. 
  
  
At the same time of this decision by Harper government, two separate House of Commons subcommittees were investigating the conduct of the out of control Canadian Human Rights Commission. 

Standing Committee on Justice and Human Rights (JUST)
Subcommittee on International Human Rights (SDIR)

October 5, 2009: Ezra Levant and Mark Steyn eviscerate the CHRC censors

October 26, 2009:  CHRC Chief Kangaroo on the hotseat and grilled by Members of Parliament

June 16, 2009:  MP Russ Hiebert slams CHRC's David Langtry

June 18, 2009: Prof Robert Martin exposes the CHRC
The CHRC has shown over the years it is willing to go to any lengths and spend as much tax-payers dollars as needed to protect their censorship franchise.  From claiming "National Security" to hid their online infiltration and spying campaign to hacking a private woman's Internet connection,  nothing is beyond what the CHRC will do.  Ethics guidelines?   Not at the CHRC...
Now is the time to contact organizations who support freedom of speech and request they intervene in this case, and finally rid Canada of this shameful thought control and pre-crime legislation.

What the CHRC is trying to overturn at the Federal Court
In September 2009, the Canadian Human Rights Tribunal ruled that:
  
[290] Thus, following the reasoning of Justice Dickson, at 933,one can no longer say that the absence of intent in s. 13(1) “raises no problem of minimal impairment” and “does not impinge so deleteriously upon the s. 2(b) freedom of expression so as to make intolerable” the provision’s existence in a free and democratic society. On this basis, I find that the Oakes minimum impairment test has not been satisfied, and that s. 13(1) goes beyond what can be defended as a reasonable limit on free expression under s. 1 of the Charter.

c) Conclusions with respect to the claim of infringement on the freedom of expression

[295] For all the above reasons, I find that s. 13(1) infringes on Mr. Lemire’s freedom of expression guaranteed under s. 2(b) of the Charter, and that this infringement is not demonstrably justified under s. 1 of the Charter.





[279] This question, however, is not what is relevant to the present discussion. The point is that, when assessed against the characteristics of the penalty provisions enumerated in these decisions, it is evident that s. 13(1) has become more penal in nature (irrespective of whether s. 11 Charter rights are necessarily triggered). The provision can no longer be considered exclusively remedial, preventative and conciliatory in nature, which was at the core of the Court’s finding in Taylor that s. 13(1)’s limitation of freedom of expression is demonstrably justifiable in a free and democratic society, and thereby “saved” under s. 1 of the Charter.






V. CONCLUSION
I have determined that Mr. Lemire contravened s. 13 of the Act in only one of the instances alleged by Mr. Warman, namely the AIDS Secrets article. However, 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. Since a formal declaration of invalidity is not a remedy available to the Tribunal (see Cuddy Chicks Ltd. V. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5), I will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial order against him (see Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at paras. 26-7).
See full decision [here]







It’s time to end the censorship of the extremist Canadian Human Rights Commission!
 


 

PayPal:   Send your donation to:   admin@stopsection13.com
MoneyBookers:  Send your donation to: marc@lemire.com