152 Carlton Street
PO Box 92545
Final Submissions on the Constitutionality of Section 13
On November 25, 2005, Marc Lemire and his legal team, heading up by
courageous lawyer Barbara Kulaszka, filed before the Canadian Human
Rights Tribunal a constitutional
challenge of Section 13 (internet censorship) and Section 54
(impose hefty fines) of the Canadian Human Rights Act.
The original Constitutional Challenge can be read > here <
After 26 hearing days, 8 interveners and 11 witnesses
in 4 cities, the closing arguments are finally being presented.
Closing Arguments will be at:
15 – 17, 2008
9:30am to 5:00pm daily
Written Submissions of Marc Lemire
On the Constitutionality of Section 13
Part 1 --
These submissions are supplementary
to those filed with this Tribunal on December 6, 2005, prior to the
hearing of this matter. The respondent relies both on his initial
submissions and the herein submissions which are based on the evidence in
Section 13 at that time
was limited to the communication of by telephone of matters likely to
expose a person or persons to hatred or contempt by reason of the fact
that that person or persons were identifiable on the basis of a prohibited
ground of discrimination.
Section 2 (a) and (b) of
the Charter state:
has the following fundamental freedoms:
freedom of conscience and religion;
freedom of thought, belief, opinion and expression, including freedom of
the press and other media of communication.”
In 2001, section 13 was
amended in the Anti-Terrorism Act,
2001, c. 41, s. 88 to include not only telephone communications, but
any matter communicated “by means of a computer or a group of
interconnected or related computers, including the Internet, or any
similar means of communication..”
Dickson, C.J., for the
majority, held that it was clear that Parliament’s aim in passing s.
13(1) was to constrain expression communicated by telephone and further,
that the medium of the telephone was susceptible to no other use than the
conveyance or attempt to convey a meaning. [
The medium of the
telephone restricted section 13’s ambit to voice communications. This
could occur through telephone calls, usually one to one, or through
messages pre-recorded on a machine. The
The amendments to section
13 extending it to computer communication expanded section 13’s ambit
from a voice communication over a telephone to an electronic medium which
allows for multiple types of communication, multiple expectations of
privacy, and multiple means of discourse and exchange of expression
between and amongst persons all over the globe.
Expert witness Bernard
Klatt provided an overview of the types of expression found on the
Internet. These included audio and video content, government documents and
information, academic and other journals, newspapers, wire services and
magazines, voice over Internet (VoIP), blogs, message boards or discussion
boards, and real time data such as current stock market quotes. [Facts, p.
Virtually every newspaper, radio and TV station and magazine
now has a website on the Internet.
Blogs, a tremendously popular form of communicating, is a
large and growing part of the Internet which enables individuals to easily
post commentary on various topics. As of 2006 there were some 10,000 blogs
listed in BlogsCanada.
Sites such as FaceBook and the new Web2.0 generation allow
social interaction. Dating
websites help people find mates and companionship.
YouTube allows people to post videos on the Internet for
viewing by the world. Home videos, documentaries, commentaries and every
other type of video has found its way to YouTube.
Young people and old use cell phones, BlackBerries or
iPhones which can communicate text messages, video and pictures to a
friend across a room or around the world.
Emails have replaced letter writing and allow for instant
communication for personal use and business use. Emails can attach
documents, graphics or videos. Emails
can be forwarded on to one person or thousands.
Computer networks within corporations or governments or
other entities are used to send or receive information, documents or
The purpose of computer
communications is to convey meaning for a variety of purposes and in a
variety of forms. Every point of view is available on the Internet from
every corner of the globe. Religious websites seek to reach out to sinners
and pagans. Other religious websites warn of proselytising. Pagans warn of
the dangers of organized religion. Controversy
and passion fill every corner of the Internet.
The communications can be
made instantly with the click of a button. There is no requirement for
writing out a message, timing it, recording it on a machine and setting it
up on the telephone. Communications range from scholarly books which have
taken years to write to instant messaging which is written in seconds in a
stream of consciousness and without thought.
It is submitted that there
is no doubt that the computer communications now covered by section 13
fulfill the criteria set out in the Taylor case and that the provision
still infringes s. 2(b) of the Charter.
Is the objective of Section
13 sufficiently important to warrant limiting freedom of thought, belief,
opinion and expression?
The majority of the Supreme Court in
concern that the dissemination of hate propaganda is antithetical to the
general aim of the Canadian Human Rights Act is not misplaced. The serious
harm caused by messages of hatred was identified by the Special Committee
on Hate Propaganda in
The Court held that messages of hate propaganda undermine the dignity and self-worth of
target group members and, more generally, contribute to disharmonious
relations among various racial, cultural and religious groups, as a result
eroding the tolerance and open-mindedness that must flourish in a
multicultural society which is committed to the idea of equality.” [para.
The majority concluded:
“In seeking to prevent the harms caused by hate propaganda, the
objective behind s. 13(1) is obviously one of pressing and substantial
importance sufficient to warrant some limitation upon the freedom of
expression.” [para. 42]
In this case, the
respondent called the evidence
of Dr. Michael Persinger, a professor of psychology at
Persinger testified that
he had read that part of the report of the Cohen Committee written by
Harry Kaufmann, PhD. which asserted that individuals subjected to racial
or religious hatred may suffer substantial psychological distress
resulting in a loss of self-esteem and feelings of anger. He testified
that Kaufmann’s conclusions were out of date and based on social
psychological theories which, in large part, had now been shown to be
Persinger wrote in his
expert report that there was no direct experimental evidence that
listening to verbal behaviour that directly or indirectly identified that
experient diminished to any significant extent the self-esteem of a
person. The studies cited by
Kaufmann were not experimental studies but correlational studies.
Correlational studies meant that there were two variables and they
were related. It did not mean cause and effect. In these correlational
studies, even the strength of the effects was extremely small.
Self-esteem did not exist
as a thing. It was an over-inclusive word used for a variety of inferences
from psychometric tools.
The term “psychological
distress” used by Kaufmann, and quoted by the majority in
The technology of brain
function did not exist in the 1960’s. Neurocience and neuropsychology
and cognitive neuroscience had enabled researchers to know how the brain
worked much more effectively today. By using this technology, one could
now look at the changes throughout the brain in areas that involved
perception, empathy, love, hurt, rage. This could be done in real time
without relying on anecdotal evidence.
Persinger’s evidence was
that Kaufmann’s conclusion that hate propaganda produced feelings of
anger and outrage in people ignored two critical controlling variables:
firstly, that frustrative aggression occurred when there was no
opportunity to respond freely and secondly, when behaviour (including
beliefs) that had been rewarded by group consensus was no longer rewarded,
it was followed by outrage and emotive behaviour.
established that the conclusions regarding the harm alleged to result from
hate propaganda have never been proven in cause and effect studies. In the
correlational studies cited by both Kaufmann and Mock, the effect was so
small as to be meaningless. There was a stronger correlation between
self-esteem and being left or right handed than with the negative effects
cited by Kaufmann. Moreover, there was no evidence as to how long these
effects lasted, from irritation for a few minutes to a longer term impact.
He introduced a paper which showed that the correlation between right
hemispheric dominance and lower self-esteem was much stronger than the
correlation between exposure to aversive stimuli (“hate” or racial
hostility) and lower self-esteem. [Facts, p. 203]
He testified that
something that had been found repeatedly in studies was that if people
interact and stay in close proximity for a given length of time and can
exchange points of view, the amount of hostility between them actually
decreased. [Facts, pp.
Mock to a great extent
relied on anecdotal evidence and her own life experience to prove that
hate propaganda causes harm justifying limitations on expression. She gave
many examples of psychological harm which would not be addressed by
section 13, however, and were not relevant. For example, she gave the
example of post-911 focus groups of Muslims who stated their identity was
being affected by things they were reading in newspapers and by slurs and
name-calling at school and the supermarket.
Print newspapers and slurs on the street are not covered by section
13. This raises the issue of the rationality of a law attempting to limit
expression to prevent a harm which is going to be experienced on the
street and by reading a newspaper in any event.
She gave the example of a
Muslim man who post-911 was a victim of verbal harassment. He said that in
She gave the example of
cyber-bullying whereby young people, usually, were targeted by nasty
emails. She stated the trauma increased if the targets race or religion
was brought into it. The harm of such personal, abusive emails is not a
harm that can be solved by section 13.
Such emails are a serious form of harassment involving the
violation of a person’s private space, as email is considered to be. The
broad violation of fundamental freedoms cannot be justified by the abuse
of emails in what amounts to stalking.
Mock testified that the
psychological literature was replete with the impact of hate crime and
hate speech on its victims. However, section 13 does not deal with hate
crimes but only hate messages on telephones or computers. During Mock’s
testimony, she constantly intermingled the effects of hate speech with
hate crimes or abuse. [Facts, p. 252]
Mock relied primarily on
two papers, the first being “Racist Incident-Based Trauma” by
Bryant-Davis and Ocampo. The
authors stated that “The purpose of this paper is to provide a framework
for conceptualizing racist incidents as trauma by drawing parallels
between racist experiences and the acknowledged traumas of rape or
domestic violence.” [p. 479]
Further on, the authors wrote: “We define racist incidents as
cognitive/affective assaults on one’s ethnic self-identification. These
assaults can be verbal attacks, physical attacks, or threats to
livelihood.” [p. 480]
Persinger testified that
the Bryant-Davis paper was not useful as it confused verbal behaviour and
physical assault. These were totally different. [Facts, p. 193] As the
definition of “racist incidents” included both verbal and physical
attacks, its overall attempt to formulate a new theory of racism trauma
has little relevance in this case.
The Bryant-Davis study,
however, contained other statements on the state of research in this area
which are highly relevant to the issue of harm caused by hate propaganda.
Firstly, the authors
acknowledged that while many researchers focused on “racist incidents as
stressors leading to psycho physiological disease, few
conceptualize racist incidents as forms of trauma.” [p. 484] The
authors admitted that only a small number of researchers “conceptualize
racism as trauma.” [p. 484] “Consequently,
few studies examine racist incidents
as a source of trauma.” [p. 484]
Secondly, it is highly
significant that the Diagnostic and
Statistical Manual of Mental Disorders of the American Psychiatric
Association (4th ed., 2000) limits the definition of trauma to
incidents that are physical in nature, such as serious injury, rape, and
assault, but excludes verbal abuse, emotional abuse and social alienation,
such as nonphysical racist incidents. [p. 484-485]
Finally, the authors made
several important comments about how people respond to racist incidents”
not all persons who experience
racist incidents will be traumatized, some persons develop post trauma
symptoms in response to racist incidents.” [p. 479
universal, so-called cut and dried responses to psychological traumas
exist. Even acknowledged traumas such as child sexual abuse may produce
sequelae of varying toxicity in survivors.” [p. 480]
differences in personality, resilience, coping style, unique personal
experiences, strength of ethnic self-identification, family closeness,
etc. may buffer or mediate responses to psychologically toxic events.”
have observed that some survivors of racism report feeling
empowered by their experiences.” [p. 481]
It is submitted that the
Bryant-Davis paper shows that the findings of the Cohen Committee Report
with respect to the harm resulting from hate propaganda, relied upon by
the Supreme Court, may apply to some people, but only some people.
The harm of psychological trauma, which exposure to “hate
messages” is alleged to cause, is not a “universal, so-called cut and
dried response” as the Cohen Committee believed over 40 years ago. The
response of people to what is termed “hate” will be highly
individualized, depending on the factors outlined by Bryant-Davis above.
Mock testified that she
agreed with the authors’ statement that individual differences in
personality, coping style etc. had the effect of mediating responses to
psychologically toxic events. She
stated that there was no study of the percentage of people fitting into
any of those categories. [Facts, p. 218] She agreed that the paper
recognized that an individual’s strength of ethnic self-identification
was a very important variable in how someone would react to material as
being hate or not. [Facts, p. 216]
The use of censorship to
stop psychological harm is a blunt instrument that does not meet any valid
objective. Indeed, the law
causes the opposite result because it appeals to those who are most
ethnically or group identified and therefore leads to division, not
harmony as each strongly self-identified group starts using complaints to
assert its interests.
Mock admitted that there
was no study, being a controlled experiment, that showed hate and
extremism on the Internet led individuals and groups to commit violent
acts or hateful acts. [Facts, p. 217] This was an important admission
because it was one of the reasons given by the Supreme Court for holding
that section 13 was justified.
The second study relied upon by Mock was “Hate Speech: Asian American Students’ Justice Judgments and Psychological Responses” by Boeckmann and Liew (2002). The summary of the study is contained in the Facts at page 214-215. Essentially, it found that participants in the study who highly identified with their Asian American social identity would punish Asian-targetted hate speech more severely than those who had a low identification with an Asian American identity.
Mock testified that in
fact the study showed that ethnic self-identification was a very important
factor, in terms of psychological reaction, in determining whether someone
reacted to something as hate or not. [Facts, p. 215]
The students in the study
self-identified as Asian Americans. However, even in this group, Mock
testified there was a range of self-identification within the ethnic
group. [Facts, p. 215]
A second study in the
paper showed that the response of the students to a written scenario in
which an Asian person is disparaged by another.
The response of the Asians was anger and outrage. There was a small
reduction in their collective self-esteem but effect was only temporary.
[Facts, p. 251] Mock agreed it was a rejection reaction and that
the Jewish community response to Ernst Zundel had likewise been outrage.
She acknowledged that studies done by Conrad Winn after the Zundel trial
showed increased sympathy in the general community for Jews. [Facts, p.
The Boeckmann paper itself
cautioned that its results could only be generalized to other Asian
Americans and other minorities with “considerable caution.” It noted
that the participants in the study were educated at an elite university
and “may be more assertive in their responses to hate speech than other
Asian American and other minority groups without similar advantages.”
Persinger testified that
the Boeckmann studay was a correlational study, not an experimental study.
The effect of the hate scenario on the students was very small, and would
be the kind of change that would be comparable to having a fight with a
spouse or just having a bad day. The study did not answer the question of
how long the effect lasted. If one wanted to understand the impact of
anything on behaviour, the questions had to be answered: how much and how
long did it last? [Facts, p. 193]
Mock testified that other
studies showed such effects lasted a long time. However, the studies she
referred to concerned post-traumatic stress disorder. The Bryant-Davis
article had already showed that verbal behaviour is not included in the
definition of trauma. Again, Mock kept referring to studies that involved
incidents which were not purely verbal or written. [Facts, p. 251]
It is submitted that the
Boeckmann paper is important because it shows again that even individuals
who self-identify with an ethnic group have strong variations of
self-identification and these will cause very different psychological
reactions to material as being hate or not.
The finding by the Supreme
Court, based on the Cohen Committee Report, that there is a universal
serious psychological harm caused by exposure to hate propaganda, is
proven by the Boeckmann study to be untrue.
Mock was asked directly by the Tribunal: “So what is hate then, that would affect a victim?” She replied: “ Again, this is why we – we belabour over it so long and have to use the reasonable limits, and why we need the Attorney’s General consent for this, so we don’t go on that slippery slope. Being offensive is not the same as being hateful, in terms of the law, and in terms of – of what speech we might want to limit.” [Facts, p. 235-236] In other words, Mock could not provide an answer because whether a person is harmed or not will depend on their own individual personality characteristics, interests, group self-identification and so on. It is also noteworthy that she referred to the consent of the Attorney General, which is not required under section 13, but only for criminal prosecutions under s. 319 of the Criminal Code.
That in fact no serious harm exists to warrant section 13’s limitation of a fundamental freedom is confirmed by examining the history of the use of section 13.
After the complaint
Of these, almost 30% had insufficient evidence to be dealt with by the CHRC or were withdrawn. Even this small number has been artificially inflated by the Warman complaints.
Warman has laid about 26 complaints since the law was amended to extend to computer communications.
Of the Section 13
complaints which have gone to a tribunal, the complainants have been as
CHRC – 1 complaint (
Jewish individuals or groups – 9 complaints
Homosexuals – 2 complaints
Blacks – 1 complaint
· Multicultural organizations – 7 complaints [Facts, p. 93-96; see Appendix for chart]
Of all complaints filed with the CHRC, section 13 complaints have been and remain an extremely small percentage. In the years 2002-2006, section 13 complaints comprised only 1% of all the complaints filed. [see Appendix for chart]
In other words,
It is respectfully
submitted for these reasons, and the reasons set out in the respondent’s
submissions first filed in this matter, that the objective of preventing
the harms caused by hate propaganda is not one of pressing and substantial
importance sufficient to warrant a limitation upon freedom of expression.
In the event that the
Tribunal finds that Parliament’s objective is of sufficient importance
to justify some limitation upon freedom of expression, it is submitted
that section 13 is not proportionate to this objective.
It is not rationally connected to the objective. It is arbitrary,
unfair and based on irrational considerations. It does not impair freedom
of speech and conscience as little as possible and its effects on the
limitation of rights and freedoms are not proportional to the objective.
In its finding in
Dickson C.J. held that it
was “essential” to recognize that the CHRA was very different from the
Criminal Code. He stated:
aim of human rights legislation, and of s. 13(1), is not to bring the full
force of the state’s power against a blameworthy individual for the
purpose of imposing punishment. Instead, provisions found in human rights
statutes generally operate in a less confrontational manner, allowing for
a conciliatory settlement if possible and, where discrimination exists,
gearing remedial responses more towards compensating the victim.” [para.
conciliatory nature of the human rights procedure and the absence of
criminal sanctions make s. 13(1) especially well suited to encourage
reform of the communicator of hate propaganda.” [para. 53]
the extent that the section may impose a slightly broader limit upon
freedom of expression than does s. 319(2) of the Criminal Code, however, I
am of the view that the conciliatory bent of a human rights statute
renders such a limit more acceptable than would be the case with a
criminal provision.” [para. 61]
coming to this conclusion, I do not mean to say that the purpose of
eradicating discrimination in all its forms can justify any degree of
impairment upon the freedom of expression,but it is well to remember that
the present appeal concerns an infringement of s. 2(b) in the context of a
human rights statute. The chill placed upon open expression in such a
context will ordinarily be less severe than that occasioned where criminal
legislation is involved, for attached to a criminal conviction is a
significant degree of stigma and punishment, whereas the extent of
opprobrium connected with the finding of discrimination is much diminished
and the aim of remedial measures is more upon compensation and protection
of the victim. [para. 69]
an intention to expose others to hatred or contempt on the basis of race
or religion is not required in s. 13(1). As I have just explained,
however, s. 13(1) operates within the context of a human rights statute.
Accordingly, the importance of isolating effects (and hence ignoring
intent) justifies this absence of a mens rea requirement. I also reiterate
the point that the impact of the impugned section is less confrontational
than would be the case with a criminal prohibition, the legislative
framework encouraging a conciliatory settlement and forbidding the
imposition [page936] of imprisonment unless an individual intentionally
acts in a manner prohibited by an order registered with the Federal
Court.” [para. 75; see also para. 83]
The majority judgment
referred to the fact that section 13 appeared in the context of a human
rights statute in virtually all parts of its section 1 Charter analysis in
upholding the law.
It is submitted that an
analysis of section 13 and how it has been used in the past 30 years shows
that while the rest of the CHRA
is remedial and appears to fulfill the objective of remedying
discriminatory practices in employment, accommodation and services,
section 13 is not.
The CHRA, including
section 13, allows any person to lay a complaint so long as the
jurisdictional requirements of the statute are met. There is no limit on
the number of complaints that one person can file.
For other provisions of
the CHRA, this does not pose a problem for potential abuse of process.
Overwhelmingly, complaints to the CHRC deal with employment related issues
by either individuals who feel they have been discriminated against, or by
unions in pay equity complaints.
For example, from 2002 to
2006, complaints to the CHRC which were employment related or services
related accounted for about 95% of all complaints laid in each of those
years. [R-19, Tab 2, p. 3]
A chart in the 2005 CHRC
Annual Report shows that in the years 2004 and 2005 an average of only
8.5% of respondents in complaints were individuals. Fully 91% of
respondents are federal corporations, government agencies or departments,
unions or Reserves, Bands and Councils.
[R-19, Tab 2, p. 26]
Of the complaints actually
sent to a CHRT hearing, virtually no non-section 13 decisions in the years
2006 and 2007 were made which involved a respondent who was an individual.
In 2007, for example, the CHRT website lists 59 rulings and
decisions made in that year. In non-section 13 cases, respondents included
the Treasury Board of Canada, the Canadian Forces, the Canada Post
When section 13 complaints alone are examined, however, the situation is exactly the opposite. Virtually all respondents, that were legally persons, were individuals or small associated groups of individuals.
As a practical matter, the
discriminatory practices set out in the statute, other than section 13,
will involve an individual or class of individuals who feel aggrieved
against a federally regulated employer or service provider.
Of necessity, the respondent will be and almost always is, a
corporation or a government agency or department or a Band under federal
Under these provisions,
the respondent is an entity which has allegedly discriminated against an
individual or class of individuals in the provision of employment or
services. But under section 13, the respondent is not providing any
service or employment. He or she is someone who has used
the federally regulated telecommunications facility, in a manner which is
allegedly contrary to the statute. While corporations are obviously
subject to section 13, not one corporation or federal agency or department
has ever been the subject of a decision of the CHRT in the thirty year
history of the provision.
In the other
discriminatory practices, an employer or service provider is the person
being held liable. In section 13, it is the ordinary person, not in
business and not a tax-funded government department or agency, who is
being held liable.
The very definitions of
discriminatory acts set out in the statute, other than section 13, ensure
that in practice only those persons aggrieved by certain acts or policies
will lay complaints. Such persons, because they have suffered harm, are
looking for remedies to the situation in the fastest and most efficient
manner possible. Conciliation and mediation are therefore welcome
procedures that can be and are used by complainants under these
In the chart produced in
the Appendices, “Total CHRC Decisions (2002-2006), data from the
2006 Annual Report shows that the remedial procedures set out in the
statute appear to work well in resolving complaints. Only 11% of the total
complaints filed for those years were unresolved and were sent to a
hearing before the CHRT.
When complaints filed under section 13 alone are looked at, however, the situation is exactly the opposite. In the chart produced in the Appendices, “Section 13 CHRC Decisions 1978 – 2007,” it can be seen that fully 68% of complaints were sent on to a CHRT hearing. Only 4% were settled.
Once complaints are sent to the CHRT, complaints under section 13 again are resolved in a manner strikingly different from non-section 13 complaints. The chart “Mediated Cases before the CHRT”, sets out the percentages of complaints resolved through mediation once they have been forwarded to the CHRT. In 2004, fully 67% of all complaints sent to the CHRT were settled through mediation. In 2005, this figure rose to 73.5% and in 2006 to 86% of complaints. Of section 13 complaints alone, however, only 10% of cases were settled through mediation at the CHRT in thirty years.
In the ultimate resolution
of cases, all individuals who have been before the tribunal have been
found liable under section 13.
Section 13 is clearly
different from all other discriminatory practices under the CHRA. It is different with respect to the persons who are the
subject of complaints and it is different in the way complaints are
processed and resolved. The differences are not minor. In every way,
section 13 complaints are the mirror image of non-section 13 complaints,
to the detriment of respondents and the effect on freedom of speech.
The procedures under the
CHRA are premised on powerless complainants obtaining cheap and relatively
quick remedies to employment or services situations where discrimination
is allegedly being practiced by a powerful and wealthy employer or
business. In non-section 13 cases, this is overwhelmingly the situation
and can be seen simply by looking at the types of respondents complaints
are laid against each year. Government departments, agencies, airlines,
railroad companies and Bands are not poor or powerless. The process of the
CHRA is largely successful in providing remedies acceptable to both
parties, as seen by the very low rates of complaints going to the CHRT and
the very high success rate of mediation once the complaint is before it.
In summary, the data with
respect to section 13 shows that complaints are not following this
remedial path, but in fact are following a very different path. Only 4% of
section 13 complaints in its thirty year history were settled at the CHRC
stage. In that same time period, fully 68% of cases were referred to the
CHRT. Of these, there was a
100% conviction rate for persons found to exist and even ones that did not
The CHRC has participated
fully in every section 13 complaint which went to a CHRT as it views the
cases as being of such high interest to the public that its participation
is demanded. [Facts, p. 92-93]
Only one person, Warman, has laid some 26 complaints since 2002.
Before the CHRT, the CHRC
has acted as a public prosecutor. It has called factual witnesses as well
as expert witnesses at no cost to the complainants.
In stark contrast, of the 35 named respondents in the cases which have gone to the CHRT, only 10% were represented at the hearing by legal counsel. Fully 51% did not appear at the hearing of the complaints against them. Fromm testified that many of the respondents are young people and most have no financial resources to hire lawyers.
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
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.
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
He summed the
issue up by stating:
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.
The Lemire case shows the
pattern of non-remedial and penal actions by the CHRC and the complainant:
Warman did not complain to Lemire about any of the messages
or essays on the Freedomsite even though he had monitored the website for
years and certainly since December of 2002. [Facts, p. 30, 55] Even though
the CHRC has a policy of encouraging of exhausting all other redress
mechanisms available, it never required Warman to first make complaints
about material. [R-19, Tab 5]
Warman did not make any complaint to Lemire, even though the
log in page of the message board explicitly asked users to email any
complaints or report issues to the administrator. A clickable link quickly
allowed a user to email Lemire but Warman did not use this facility.
[Facts, p. 59]
The initial complaint against Lemire by Warman consisted of
one article from the Freedomsite and examples of alleged hate messages
found on the Freedomsite message board. [HR-1] Lemire had taken the
message board down, however, by the time he learned of the complaint in
March of 2004. Lemire voluntarily removed the article still remaining in
an attempt to settle the matter but to no avail.
Lemire did not hear from the CHRC for over a year. When the
Investigator’s report was released in April of 2005, the CHRC had added
another entire website to the complaint, that of jrbooksonline, other
material from the Freedomsite and an alleged posting by Lemire on another
website, which the investigator could not find but was included anyway.
All of this was done without notice to Lemire or any opportunity to make
submissions until after the report was filed. Warman was an employee of
the CHRC when he laid the complaint and he was the person who trained
investigator Hannya Rizk in how to use WHOIS and
Lemire’s counsel attempted repeatedly to have the matter
settled or sent to conciliation. This was refused. [Facts, p. 32-35]
Before the CHRT, Warman refused mediation. He did so he said
doesn't mean they stopped or that they should be held blameless --
blameless isn't perhaps the best word, that they should be completely
absolved of their illegal conduct.”
[Facts, p. 35]
This pattern is consistent
in section 13 complaints.
Even letters recanting
views and apologizing for any hurt caused have not been enough to stop
complaints from being sent to the CHRT. Both respondents Terry Tremaine
and Elizabeth Lampman wrote letters to the CHRC denouncing their beliefs
and apologizing. Both cases were nevertheless sent on to the CHRT.
In the case of Lampman, an unknown settlement was reached as no
hearing took place. In the case of Tremaine, he later revoked the letter
and went to a hearing to defend his beliefs and writings. [Facts, p.
It is submitted that
several characteristics of section 13 have led to the result that it is
not used in a remedial manner:
There is no actual harm to a person required by section 13,
by its very structure. Any person can lay a complaint about perceived
potential “hatred or contempt.” Unlike a situation where a person has
been denied services or employment, there is no incentive to negotiate
solutions to the problem and quickly obtain relief;
There is no limit on the number of complaints one person can
There is no cost to a complainant to lay a complaint and
pursue it to a hearing since the CHRC carries out the investigation and
prosecutes the case before the CHRT. The complainant is called as a
witness at the hearing and has all expenses paid. Warman’s expenses are
paid by the CHRC, as admitted to the CHRT in the Winnicki
case [para. 185];
If the matter goes to the CHRT, the CHRC and complainant
have the chance to have a large penalty imposed on the respondent as well
as a permanent cease and desist order. Since the provision deals with
speech, the CHRC and complainants want an order that will permanently
silence the respondent and punish him for his morally repugnant views.
The CHRC and complainant have only to establish a case on
the balance of probabilities and there are no strict rules of evidence.
There are no defences of truth, fair comment or lack of
intent to expose persons to hatred.
Even if a respondent won at the CHRT (which none have) he
cannot recover his costs from either the complainant or the CHRC. He must
prepare his own defence, hire his own lawyer and appear at the hearing to
protect his continued right to freedom of speech at his own cost.
If the respondent chooses not to attend, the matter will
continue in his absence in any event and penalties and cease and desist
orders imposed, even in the absence of any evidence of means to pay. CHRTs
have held that the burden is on the respondent to prove he does not have
the means to pay. Large fines are imposed even on extremely poor
respondents such as Tremaine who have attended their hearings and given
evidence as to their dire financial situations.
The complainant is not required to attend the hearing. In
this case, Warman left the hearing after giving his testimony and did not
return even though the hearing continued on for almost 20 days. The case
was carried by the CHRC as it has done with virtually every section 13
After the complaint is laid, if the respondent makes any
disparaging remarks about the complainant or attempts to retaliate in any
way, he becomes liable for paying extremely large awards of compensation
to the complainant.
Under section 59 of the CHRA, it is an offence, punishable
by a fine not exceeding $50,000.00, to “threaten, intimidate or
discriminate against an individual because that individual has made a
complaint or given evidence or assisted in any way in respect of the
initiation or prosecution of a complaint or other proceeding under this
Part, or because that individual proposes to do so.” This means that the
complainant and his witnesses and any other person who assists in his
complaint is protected. But there is no protection whatsoever for the
respondent, his witnesses or assistants from such intimidation or threats.
Paul Fromm, who has acted as an agent for several of the section 13
respondents, has been both threatened and subject to intimidation by
Anti-Racist Action. ARA held a demonstration outside his house in 2006,
yelling threats such as “We’ll be back and we’ll burn you out you
fucking Nazi!” ARA broke up
a fund-raising meeting held by Fromm’s group for Lemire. With these
events, ARA distributed flyers identifying Fromm as someone who was
assisting respondents before the CHRT under section 13. Fromm, a witness
in one of the CHRT hearings, was followed from the hearing in an
intimidating manner by ARA members. [Facts,
Once a complaint is laid, the respondent is subject to the
search of his home by CHRC investigators under warrants obtained ex
parte. The use of force may be authorized by the warrant. The
investigator can require the respondent or any individual therein to
produce books and documents for inspection and copying. This includes
making copies of hard drives. [s.
If the respondent obstructs the investigator, he is subject
to summary conviction under s. 60 of the CHRA and a fine of up to
Once a cease and desist order is obtained, the respondent is
subject to it for the rest of his life, chilling his expression on any
matter likely to lead to a contempt charge by either the complainant or the
CHRC. Goldberg testified that
no person had ever been jailed for contempt of orders of the CHRT except
those found liable under section 13.
It is submitted that the
above factors, including the inclusion of a penalty provision in the CHRA,
show that section 13 is not a remedial provision and is not used as
remedial provision. It has been prosecuted by the CHRC for 30 years as if
it were a criminal provision and it has gravely violated the right to
freedom of speech given that there are no defences, tremendous benefits
and privileges accorded the complainant and only rudimentary evidentiary
and procedural safeguards for respondents.
It’s time to end the censorship of the extremist
Canadian Human Rights Commission!
Section 13 of the Canadian Human
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