Tuesday, October 16, 2012

Mediation issues in the Lemire Case: The Federal Court gets it all wrong




In the recent bizarre ruling of the Federal Court in the Marc Lemire case – where a Justice of the Federal Court upheld the completely discredited Section 13 of the Canadian “Human Rights” Act – The Justice also further claimed that the Tribunal’s clear and decisive ruling was incorrect with respect to mediation. Since the ruling, Richard Warman has taken to one of the websites he posts on to claim he was ‘extremely pleased’ with the courts finding that “repeated efforts were made by the Commission and Richard Warman to engage Marc Lemire in mediation or negotiation but these were always refused by Lemire because he would not accept a cease and desist order as part of any settlement. (para 60)

Senior adjudicator Athanasios Hadjis of the Canadian Human Rights Tribunal looked at the mediation quite extensively in the Lemire case, and found that: “Mr. Lemire repeatedly asked formally through his legal counsel for an opportunity to mediate or conciliate a settlement to the complaint, to no avail…” [para 284] and further that “As I have pointed out several times in this decision, Mr. Lemire had not only “amended” his conduct by removing the impugned material, but sought conciliation and mediation as soon as he learned of the complaint against him. The process understood by the Supreme Court was not what Mr. Lemire experienced.” [para 289]

The Federal Court said that: “In this instance, the Member accepted Mr. Lemire’s contention that the complainant and the Commission declined to mediate or conciliate a settlement to the complaint. This is not borne out by the record of the Tribunal proceedings. Repeated efforts were made to engage Mr. Lemire in mediating or negotiating a settlement of the complaint. However, they were conditional on Lemire’s acceptance of a cease and desist order, which he refused to accept.” [para 60] 

But who is correct,  the Federal Court who reviewed the matter [in a ONE DAY hearing], or the Canadian Human Rights Tribunal who reviewed the Lemire case for close to four years, across close to 30 days of evidence and hearings?

Here is just one of the many documents I have on the mediation issue.  I have plenty more, but these documents really underline how the entire process worked against me.  It was a punitive process which in itself was the real punishment of the entire hearing.



On September 20, 2005, when the Marc Lemire case was referred to the Canadian Human Rights Tribunal for a hearing, one of the very first letters the Tribunal sent was to request mediation of the case. The Tribunal stated: “Before planning the actual inquiry, the Tribunal is offering mediation, on consent of all parties, in an attempt to achieve a settle of this matter.  If the parties are of the view that mediation would be of assistance, the Tribunal Chairperson will designate a member of the Canadian human Rights Tribunal to meet with the parties to help in negotiations to resolve the complaints.  As Counsel for the respondent [Marc Lemire] in these proceedings, our Mediation Procedures are enclosed for your review, to assist you in making this decision.


A mere three days later, Marc Lemire’s lawyer – Barbara Kulaszka – immediately responded by saying “Mr. Lemire agrees to mediation in the above-noted complaints by Mr. Warman in English.  I propose that the mediation take place in the cities of Bellville, Kingston and Toronto, listed in order of preference.

Unlike the questionable ruling by the Federal Court, or any other claims, there was NO “precondition” of anything.   Marc Lemire agreed to mediation before the Canadian Human Rights Tribunal, immediately and unreserved.  The quote above is the entire letter from Marc Lemire’s courageous lawyer, Barbara Kulaszaka.  There was no precondition, or any refusal to accept a “cease and desist” order.

And who turned down the mediation before the Canadian Human Rights Tribunal?




On September 30, 2005, Gregory Smith, Registrar of the Canadian Human Rights Tribunal sent us a letter, wherein he stated: “In response to our letter dated September 20, 2005, inquiring whether the parties were interested in having the above-noted case mediation, I am now writing to confirm that mediation has been declined by the Complainant [Richard Warman].  Therefore, this case will now proceed to hearing.

Here is the entire letter, in case you think I might have left something out.   Just click on each image to enlarge it:






The Federal Court was totally wrong.   I did not put preconditions on the mediation, and for those that wish to praise the Federal Court for this incorrect ruling, should really review the documents posted in this email, and think again about who turned down mediation from day one.   

Can you say … “Maximum Disruption”?



-Marc Lemire






Friday, October 5, 2012

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.

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.

 

Lucy “Looses”

 

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 [1987] 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: [58] 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. […] [64] 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:

 

[107] 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.

 

[112] 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.

 

[113] 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.

 

I cannot carry on this important fight alone. Your donations literally equal the survival of this case. No organizations are assisting with the bill at all.

 

You can contact me here:

 

Marc Lemire

762 Upper James St

Suite 384

Hamilton, Ontario

L9C 3A2

 

Email:  marc@lemire.com

Web:  http://www.freedomsite.org | http://www.StopSection13.com

Twitter:  @marc_lemire

 

 

 

>> Donate online here <<

 

 

 

 

 

Ezra Levant and Chris Schafer discuss the Federal Court Ruling in Lemire case on the Sun News Network

 

Ezra Levant and Chris Schafer discuss the Federal Court Ruling in Lemire case

Ezra Levant: Section 13 update - Oct 3, 2012

 

 

http://www.youtube.com/watch?v=NUhZhjB7nos

 

 

 

Ezra Levant: Section 13 update - Oct 3, 2012

Guest on show:  Chris Schafer from the Canadian Constitution Foundation

 

 

 

 

Wednesday, October 3, 2012

BREAKING: Federal Court Rules in Lemire case. Some good news and some bad news: Wacky ruling by Federal Court sends the Marc Lemire case back to the Canadian Human Rights Tribunal for a declaration on Section 13 but invalidates the Penalty Provisions

BREAKING:  Federal Court Rules in Lemire case.  Some good news and some bad news

 

Wacky ruling by Federal Court sends the Marc Lemire case back to the Canadian Human Rights Tribunal for a declaration on Section 13 but invalidates the Penalty Provisions

 

 

TORONTO Oct 3, 2012:  The Federal Court of Canada has issued it’s ruling in the Marc Lemire case, which challenges the infamous censorship provision Section 13 of the Canadian Human Rights Act.  The Federal Court has struck down the penalty provisions of Section 13, but held that the doctrine of Severance was applicable and that Section 13 remains constitutional.

 

In yet another head scratching move by the Federal Court, Justice Richard G. Mosley has found that the notorious censorship provision – Section 13 of the Canadian Human Rights Act is constitutional, but that the penalty provisions are unconstitutional. The Federal Court issued their ruling while at the same time; the Senate of Canada is passing Second Reading on Bill C-304 an Act which will strip the censorship powers from the fanatics at the Canadian Human Rights Commission.  How out of touch with the will of Canadians can the Federal Court be?

 

This is both a major victory for freedom and a set-back.   The Federal Court has found that the penalty provisions of Section 13 are unconstitutional.  The Federal Court “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;”.  This strikes down the law which assessed huge fines against victims of Canadian Human Rights Commission censorship.  Fines of up to $10,000 were imposed at will against anyone caught up in the “human rights” juggernaut.

 

From the very outset of this thought-control trial (starting in 2003/2004 !!!); Marc Lemire – though his courageous counsel Barbara Kulaszka – advocated for the penalty provision to be struck down.   The CHRC and their fellow travelers fought tooth and nail against this.  Finally in 2009, the Canadian Human Rights Tribunal agreed with Lemire, but lacked the power to actually invalidate the law. Today, The Federal Court has struck down the penalty provision and wiped this blight from Canadian Law books.  This effectively removes the hammer which the fanatics at the Canadian Human Rights Commission have used to silence and suppress political dissidents from speaking truth-to-power on the Internet.

 

The bad news is that the Federal Court has upheld Section 13.  The court found that the Canadian Human Rights Tribunal should have applied the doctrine of Severance, and “read-out” the Penalty provisions and held the underlying provision as constitutionally valid. This is the most shocking part of the decision.

 

Ignoring the very decisive and detailed ruling by the Canadian Human Rights Tribunal, Justice Mosley found that Section 13 was just fine.  Contrary the mountain of evidence which was submitted during the Lemire Tribunal hearing; Justice Mosley found that there was little difference with Section 13, when it only applied to telephone answering machines to what it applies to now – the entire Internet.  In Mosley’s mind, a crappy telephone answering machine is similar in reach and scope as the entire internet is.  And as such there is no issue with applying the censorship powers of Section 13 to the entire media, broadcast media, podcasts, interactive content, Twitter, Facebook, YouTube, etc etc etc.   After all they are just like an answering machine?!?!?

 

It really makes you wonder what is wrong with our courts and those clowns that elevate themselves to god-like status to rule over us little sheep.  How the heck could the court rule that a telephone answering machine is no different than Facebook, Twitter or YouTube?

 

Unlike our proud ancestors who had to fight for freedom in the trenches of Normandy and in the highlands of Scotland, nowadays we have to fight for freedom in stale court rooms surrounded by out of touch “Justices” and their cadre of useful idiots just waiting to praise anything they do.

 

Every single major news outlet in Canada has denounced the censorship provisions of Section 13 – from coast to coast.  From the leftists at the Toronto Star, to the National Post, Toronto Sun, Vancouver Province, Globe and Mail, Macleans Magazine, Calgary Herald, Ottawa Citizen, London Free Press, Catholic Insight, Catholic Register, B'nai Brith Jewish Tribune, Halifax Chronicle Herald, Sask Leader-Post, Winnipeg Free Press, and even the CBC.

 

The Parliament of Canada has voted to repeal Section 13 by a majority of Members of Parliament in the House of Commons.  The Senate of Canada has already voted twice to repeal Section 13 and is it now on the way to third and final reading … yet this Justice Richard Mosley – in utter sheer arrogance and in clear contrast to a majority of Canadians – gives Section 13 its last gasp of air.

 

It was pretty clear during the court hearing in 2011, that Justice Mosley was harbouring a great deal of animosity towards the side representing freedom and justice.  He treated my lawyer – Barbara Kulaszka – like complete trash.  Constantly cutting her off and limiting our time to submissions down to almost nothing.  The exchange between Mosley and Kulaszka was even quoted in the National Post the next day.

 

Like a lost soul, Justice Mosley just kept asking why the Attorney General of Canada was not appearing before him to make submissions.  Of course the mere fact that the Attorney General was not going to appear in Federal Court to uphold this censorship law spoke volumes to everyone present.   It is really quite a statement when the Attorney General of Canada refused to appear in the court to uphold their law.  And it was even more evident when days later the Attorney General of Canada – Rob Nicholson – rose in the House of Commons and voted on Bill C-304 an Act to repeal Section 13.  Can the message be any clearer Justice Mosley?

 

The question now is what to do.  Do I accept the ruling of Justice Mosley or do I appeal and continue to fight to rid Canada of this horrible censorship legislation?  The choice is as much mine as it is yours.  I can not continue to fight for freedom without your support.  There are a series of other cases in the “Human Rights” grist mill, which are awaiting a final decision in my case.   If I chose not to appeal, all those cases would then be activated and the censorship victims would be dragged before these kangaroo courts (Arthur Topham, Alexan Kulbashian, etc)

 

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.

 

 

I cannot carry on this important fight alone. Your donations literally equal the survival of this case. No organizations are assisting with the bill at all.

 

 

You can contact me here:

 

 

Marc Lemire

762 Upper James St

Suite 384

Hamilton, Ontario

L9C 3A2

 

Email:  marc@lemire.com

Web:  http://www.freedomsite.org | http://www.StopSection13.com

Twitter:  @marc_lemire

 

 

 

>> Donate online here <<