Lucy “Looses”: Penalty Provisions Stuck Down in “Human Rights” Censorship Law
Richard Warman asked for a penalty against Lemire at the Tribunal – And the Federal Court stuck down the entire penalty provision! Warman 0 – Lemire 1.
At the closing arguments in the Canadian Human Rights Tribunal hearing into the Section 13 complaint by serial plaintiff Richard “Lucy” Warman against Marc Lemire, Warman asked the Tribunal to assess a penalty against Lemire of $7,500. This weeks ruling by the Federal Court of Canada stuck down the penalty provisions of the Canadian Human Rights Act and strips the power from the Tribunal to fine and penalize censorship victims.
The penalty provisions of the Canadian Human Rights Act [s. 54(1)(c)] have been used to heavily fine and punish victims of censorship. The penalties have been used as method to silence those that dare to voice their opinions on the internet. Failure to pay the fines could be seen as contempt of a “human rights” order, which could land the person in jail for up to 5 years. From 2003 to 2008 close to $60,000 was awarded in fines by the Tribunal.
From the very beginning of the hearing, Marc Lemire - through his courageous lawyer Barbara Kulaszka – has submitted that the penalty provisions are unconscionable and an affront to our legal system. Both the Canadian Human Rights Commission and Richard Warman were demanding a fine be assessed against Lemire. During the final day of the hearing, the CHRC withdrew their request for a fine, but Richard Warman continued his request.
In Richard “Lucy” Warman’s final submissions he demanded:
143. I seek the following remedies and will address each one in turn:
a) An Order that the Respondent and/or anyone acting in concert with him cease the discriminatory practice, pursuant to section 54(1)(a) of the Canadian Human Rights Act.
b) An Order that the Respondent pay a penalty pursuant to section 54(1)(c) of the Canadian Human Rights Act.
156. Given that there are three factors militating in favour of the highest possible penalty and no evidence before the Tribunal in mitigation, I submit that a penalty of $7,500, similar to that in the Kyburz case would be appropriate.
[Closing Submissions of Richard Warman – Aug 5, 2008]
By the end of the Lemire hearing before the Tribunal, Warman was basically the only one asking for a penalty against Lemire.
Here are the submissions of Marc Lemire (via Barbara Kulaszka) on the disgusting penalty provisions of the Canadian Human Rights Act.
The penalty imposed under s. 54 (1)(1.1) of the CHRA is a true penal consequence, defined by the Supreme Court of Canada in R. v. Wigglesworth  2 S.C.R. 541:
“In my opinion, a true penal consequence which would attract the application of s. 11is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.” [para. 24]
In Wigglesworth, the Supreme Court held that the rights guaranteed by s. 11 of the Charter were available to persons prosecuted by the state for public offences involving punitive sanctions even if not criminal in the strict sense.
Under section 13, the complaint against the respondent need only be proven on the balance of probabilities, thereby violating section 11(d) of the Charter which provides that every person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
This penalty provision has now been used in every CHRT decided since its enactment except that of Eldon Warman. In that case, the CHRT member questioned the constitutionality of s. 54 and Warman and the CHRC thereafter abandoned their request for a penalty. [UPDATE: There was not a fine issued in the Warman vs Ouwendyk case. The Tribunal held that:  In regard to the other remedies sought by Mr. Warman (Warman wanted a penalty of $7,500 and compensation of $6,000), I have decided not to grant any relief under these provisions for the following reasons. […]  Mr. Warman has, with the assistance of the Commission, instituted most of the s. 13 (1) complaints under the Act that have come before the Tribunal. He has been very successful in these cases and has garnered accolades for his work in this regard. The evidence in this case of his participation on Internet sites similar to the Northern Alliance site is both disappointing and disturbing. It diminishes his credibility. For this reason and because the activities of the Respondents have ceased for a lengthy period of time, I will not make any further Orders in this matter.]
In the Eldon Warman case, the CHRT member made several concise observations which bear on this issue and which the respondent herein adopts. He pointed out that it is the “moral blameworthiness of the Respondent’s conduct that attracts the penalty... It is impossible to escape the correlations between the sentencing process in the criminal courts and the imposition of a penalty under section 54(2).” [paras. 55 and 56]
He commented that the purpose of an inquiry under the CHRA is not to measure the moral blame that attaches to a Respondent’s actions. It is to rectify discrimination. The task of imposing a punishment and assessing a pecuniary penalty fell outside the normal ambit of the Tribunal’s responsibilities.
He summed the issue up by stating:
“The constitutional issue is whether the Respondent’s freedom of expression can be restricted in this kind of way, without the kind of institutional and procedural safeguards that exist in the criminal process. This includes a higher standard of proof, proof of mens rea, and the strict application of the rules of evidence. It is one thing to punish an individual after a trial in a criminal court, with all the protections that the law extends to the accused. It is another thing to do so, in a process designed for other purposes.” [para. 69]
It is submitted that the penalty provision has imported into section 13 the moral blameworthiness which the Supreme Court in Taylor consistently referred to as being absent from human rights statutes. However, even apart from the penalty, section 13 is not a remedial provision and is not used as such.
Warman 0 – Lemire 1
The Federal Court tossed out the Penalty provisions and stuck down 54(1)(c) entirely! Here is what the Federal Court ruled:
 Nonetheless, I agree with the Tribunal that the addition of the penalty provision has fundamentally altered the nature of the s 13 process and brought it uncomfortably close to the state’s ultimate control measure, criminal prosecution, with which it was favourably compared by the Court in Taylor.
 In my view, the penalty is inherently punitive. Like a fine, it goes into the general revenue fund and not towards any compensatory measure such as an education or victim’s fund. In Schnell, at paragraph 163, the Tribunal noted that s 54(1)(c) was designed to express “society’s opprobrium for the discriminator’s conduct.” That view of the purpose of the penalty is enhanced by the factors set out in s. 54(1.1) which are similar to those which a criminal court would consider in determining the fine to be imposed on someone found guilty of an offence. Included is the wilfulness or recklessness of the respondent’s discriminatory practice, his or her prior discriminatory practices and his or her ability to pay.
 I agree with the Tribunal that these are all reasons to support a finding that the s 13 regime with these aspects can no longer be considered exclusively remedial. […]
THIS COURT’S JUDGMENT is that:
2. It is declared that ss 54 (1) (c) and 54 (1.1) of the Canadian Human Rights Act are of no force or effect pursuant to s 52 (1) of The Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982, c. 11,1982;
On the penalty provisions; Game, Set, Match for LEMIRE.
Can I count on you to support the cause of freedom and rid Canada of this disgusting though control legislation? My courageous lawyer Barbara Kulaszka and I have demonstrated what two dedicated freedom fighters can accomplish against overwhelming odds. We have single-handedly and doggedly fought the system and exposed the corrupt underbelly of the "Human Rights" Commission's racket. Nothing ever comes easy when you are fighting such fanatical censors. This case is a seminal one, where the outcome will have serious implications on our right to think and speak freely in this country for generations to come. All Canadians will benefit when we manage to get this shameful law expunged from our legal books.
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