The Freedom-Site: 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.

After 26 hearing days, 8 interveners and 11 witnesses in 4 cities, the closing arguments are finally being presented.

Constitutionality of Section 13 and 54(1)(1.1) of the Canadian Human Rights Act

In Taylor , the Supreme Court of Canada held that section 13(1), as it then was, was not consistent with the freedom of thought, belief, opinion and expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. [ Taylor , para. 92] It did not deal with any challenge to the law on the grounds of s. 2(a) or s. 7 of the Charter.

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.

(b) 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. [ Taylor , para. 29-30]

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 Taylor case, of course, dealt with recorded messages which a person could listen to by dialing the telephone number.

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. 184-185]

· 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 designs.

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.

Analysis under Section 1 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 Taylor relied on the findings of the Special Committee on Hate Propaganda in Canada (the Cohen Committee Report) in its finding on this point. It held:

“Parliament's 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 Canada , commonly known as the Cohen Committee, in 1966. The Cohen Committee noted that individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including a loss of self-esteem, feelings of anger and outrage and strong pressure to renounce cultural differences that mark them as distinct. This intensely painful reaction undoubtedly detracts from an individual's ability to, in the words of s. 2 of the Act, "make for himself or herself the life that he or she is able and wishes to have". As well, the Committee observed that hate propaganda can operate to convince listeners, even if subtlely, that members of certain racial or religious groups are inferior. The result may be an increase in acts of discrimination, including the denial of equal opportunity in the provision of goods, services and facilities, and even incidents of violence.” [para. 37]

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. 41]

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 Laurentien University , to challenge the findings of the Cohen Committee Report, a study which was written in 1966, some 42 years ago. In reply, the CHRC called the evidence of Karen Mock, PhD., a psychologist who worked for the intervenor League for Human Rights of B’nai Brith for 12 years and now runs a consulting business in multiculturalism and diversity training.

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 inaccurate.

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 Taylor , was so vague that it was meaningless. Persinger testified the term was so subjective that it had no value except as a catch-all term for a vague concept.

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.

Persinger’s evidence 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. 190-194]

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 Toronto he saw increased racism among his friends who panicked when they saw people who looked dark. Again, this example appears to be words the man heard in person. This activity is not covered by section 13. She gave no testimony that the effect on someone being verbally abused was the same as reading material on a computer at home.

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 (4^th 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”

“While not all persons who experience racist incidents will be traumatized, some persons develop post trauma symptoms in response to racist incidents.” [p. 479

“No 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]

“Individual 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.” [p. 481]

“We 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. 215]

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.” [p. 379]

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 against Taylor , there were no complaints under the legislation for 10 years. In the thirty year history of the legislation, there have only been 100 complaints.

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 follows:

· 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,

Canada

has a general population that deals well with expression, values the right to expression and does not experience the harm that is said to justify section 13.

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.

Proportionality

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.

Section 13 is not remedial

In its finding in Taylor that section 13 was proportionate to its valid objective, the Supreme Court relied repeatedly on the fact that section 13 was found in human rights legislation whose purpose and procedures were remedial and conciliatory.

Dickson C.J. held that it was “essential” to recognize that the CHRA was very different from the Criminal Code. He stated:

“The 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. 37]

“...the 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]

“To 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]

“In 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]

“Clearly, 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 Corporation, Air

Canada

and Canadian National Railway.

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 jurisdiction.

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 provisions.

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 exist.

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.

When Taylor was decided in 1990 the only order that could be made against a respondent was a cease and desist order. However, in 1998 the legislation was amended to allow the imposition of extraordinarily large fines against a respondent. Section 13 is the only discriminatory practice in the CHRA which has such a penalty provision. The respondent argued this point in his previous submissions at paragraphs 55 to 65.

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.

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.

“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.

The Lemire case shows the pattern of non-remedial and penal actions by the CHRC and the complainant:

1. 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]

2. 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]

3. 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.

4. 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 Visual Route , the two techniques Rizk used in Lemire’s case. There was no explanation from anyone as to how the complainant in the case gave Rizk this training.

5. Lemire’s counsel attempted repeatedly to have the matter settled or sent to conciliation. This was refused. [Facts, p. 32-35]

6. Before the CHRT, Warman refused mediation. He did so he said because “that 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]

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. 340-341]

It is submitted that several characteristics of section 13 have led to the result that it is not used in a remedial manner:

1. 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;

3. 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];

4. 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.

5. The CHRC and complainant have only to establish a case on the balance of probabilities and there are no strict rules of evidence.

6. There are no defences of truth, fair comment or lack of intent to expose persons to hatred.

7. 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.

8. 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.

9. 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 case;

10. 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.

11. 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, p. 345-349]

12. 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. 43 CHRA]

13. If the respondent obstructs the investigator, he is subject to summary conviction under s. 60 of the CHRA and a fine of up to $50,000.00.

14. 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. Taylor was sentenced to two years in prison in total on two contempt charges. Others imprisoned were Wolfgang Droege, Tomasz Winnicki, Kenneth Barker and Gary Schipper. [Facts, p. 99]

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!

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