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Contents
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Canadian Association For Free Expression
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Final Submissions on the Constitutionality of Section 13
On November 25, 2005, Marc Lemire and his legal team, heading up by
courageous lawyer After 26 hearing days, 8 interveners and 11 witnesses
in 4 cities, the closing arguments are finally being presented. Closing Arguments will be at: Argus
Ballroom Sept
15 – 17, 2008 9:30am to 5:00pm daily [See
a Map of Location] | [Get
Directions to hearing]
Written Submissions of Marc Lemire On the Constitutionality of Section 13 --
Part 2 --
Constitutionality
of Section 13 and 54(1)(1.1) of the Canadian Human Rights Act
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
the hearing. Subjectivity
and vagueness of “hate”
It is submitted that the
evidence called at the hearing established that the words “hatred and
contempt” are meaningless, such that no person can know what expression
might fall within section 13. The evidence of Professor Michael Persinger was called to provide evidence for the tribunal from the field of cognitive contemporary neuroscience on issues arising from the suppression of some thought by legislation such as section 13. The evidence of Persinger was unchallenged, the opposing parties choosing not to exercise their right to cross-examination.
Witness Bio: Dr. Michael Persinger
Persinger’s
evidence has important implications for any laws which attempt to
outlaw “hate” for whatever reason. It established that: 1.
Hate is a highly subjective experience. It is simply a label
that people apply to aversive experiences. In neuropsychological studies,
“hate” is not a term that is used. The term used is “aversive
stimuli.” 2.
It is the culture that defines aversive stimuli. Stress is
influenced by how the person perceives it, the label the society gives it
and how they are reinforced for it. Being told you have a right to feel
distressed is a form of social reinforcement which enhances the effect.
Social expectations and social context are powerful stimuli that influence
how one perceives if something is negative, aversive or not. 3.
Depending upon context and circumstance almost any kind of
word could produce distress in the experient and the chemical changes that
take place. The most typical ones were the stress hormones. Any experience
could be distressful to a person, from being told they had failed an exam
to being told someone didn’t like them because they were wearing a
three-piece suit. It was the nature of the biological system, called the
human being, to respond often with all types of chemical changes to almost
any kind of stimuli depending upon how it's perceived. 4.
If a person was told that he should be offended by how he
was being treated, research showed that this increased the distress.
Social expectations and social context are powerful stimuli that influence
how a person perceives if something is aversive or not. 5.
Problems arose when the individual did not have the tools
and strategies that allowed them to adapt and respond. The more
opportunity a person had to respond and to use their own individual
resources, the more effectively they adapted. For example, if a person
felt their family hated them, he or she could be helped by learning the
tools that allowed them to evaluate this aversive experience differently
by having the repertoire to see other explanations for their own or their
family’s behaviour. This helped them to adapt. 6.
To adapt to stress and aversive situations, it was important
for the individual to be able to freely respond. If a person did not have
the option to respond, the result was conditioned helplessness. What
is the meaning of this for laws against hate? It means that by having laws
against “hate”, the state is in fact educating people what to perceive
as being “hate.” The state, through the CHRC and the CHRT, is giving
certain views the label of “hate.” That really is what the hate laws
are accomplishing. The
rulings on what is “hate” by tribunals and courts are utterly
artificial and arbitrary constructs being driven by those coming to them
as complainants demanding that certain expression be labeled as hate.
Given Persinger’s testimony, these are people or groups who cannot adapt
to the expression of such views, such as by debate or rebuttal or
dismissal. Alternatively, complainants can also be people who have made a
deliberate calculation to fill the empty vessel that the word “hate”
is with whatever meaning they need to discredit and destroy an enemy or
inconvenient information. A tribunal which bans certain speech is saying to the complainant: “You don’t have to adapt to this information. You don’t have to debate. You don’t have to ignore it. You don’t have to deal with it. We’ll get rid of it for you, since you lack the tools and strategies necessary to respond and adapt. You are a victim and we are here to protect you.”.
Witness Bio: Karen Mock
In her
evidence, Mock admitted that the definition of “hate” which she used
was not a legal definition and included acts that were criminal. [Facts,
p. 232-233] For this reason alone, much of her testimony cannot be relied
upon as justification for limitation of expression under section 1. She
defined it later as “dehumanization language that could lead to murder
or extermination..” Jokes were hate if the punch line meant “it’s
okay to murder Jews.” [Facts, p. 236] In answering whether a joke was
hate, she included the requirement that it not incite violence. [Facts, p.
237] She justified hate laws on the grounds that it pre-empted behaviour
that led to violence. [Facts, 280] She
defined “hate” to mean an act or omission that expresses bias or
prejudice or bigotry or contempt towards vulnerable or disadvantaged
communities or individuals. She defined “victims” of hate to be those
whose attitudes, opinions, behaviours were affected by that hatred. This
included everyone in society. [Facts, p. 233] Her evidence was that
groups could be criticized but criticism ended when damage to one’s
self-worth began based on immutable group identity. [Facts, p. 234]
Whether such damage to self-worth occurs is totally subjective, as
discussed above, and is dependent on an individual’s personality
characteristics and life experiences. Most importantly, it is, as Mock
admitted, dependent on the strength of a person’s self-identification
with a group whether someone perceives something as hate or not. [Facts,
p. 215] She was given the example
of the well-known criticism of the undue influence of the Catholic Church
in In this answer, Mock was
clearly describing the adaptation described by Persinger. People choose
how to respond to material and the more ways they are taught to respond
and adapt, the stronger they are and the less vulnerable to their own
emotions in aversive situations. Mock, however, appeared oblivious to this
solution in the rest of her testimony and indeed, in her life’s work.
[Facts, p. 235] Mock’s
statement that the services of an expert would be required in identifying
“hate” in fine cases shows that the word is not definable or knowable,
as stated by Persinger. It is simply a label people use for numerous
negative situations personal to themselves. [Facts, p. 237-238] She
testified anyone publishing would especially want to consult his lawyer.
[Facts, p. 238] People
being held liable under section 13, however, are not publishing houses or
newspapers with legal departments and editorial control. The Internet is
peopled by ordinary individuals writing material that ranges from books to
essays to blogs to posts on message boards to text messages to email. The
time and thought going into each of these types of communications ranges
from years to seconds, from much thought to no thought. Any word
that requires the services of an expert and a lawyer sitting by the
computer is not a definable word. It is a negative, pejorative label as
Persinger testified. With
respect to the word “contempt”, Mock testified that it meant looking
down on an individual, a sense of superiority that attacked the identity
of a person. But she admitted that groups identified by race, religion and
so on could do things collectively that were evil and that should be
subject to criticism. [Facts, p. 238] It follows that the provision
prevents the very expression which section 2(b) of the Charter was
designed to protect. The
failure to provide truth a defence
The
question of whether section 13 failed the proportionality test because
truth is not a defence was addressed by the Supreme Court in Dickson
C.J. held that he found it difficult to accept that circumstances existed
where factually accurate statements could be used for no other purpose
than to stir up hatred against a racial or religious group. [para. 74] He
had made this observation in Keegstra and adopted it for the
purposes of the He recognized that under s. 319, the accused’s intent or purpose must be to stir up hatred. The issue in section 13 is whether it is likely someone will be exposed to hatred or contempt. He stated that because section 13 was found in the context of a remedial statute, he was still finding the defence of truth was not required. The
evidence in this case from all three witnesses who testified on the issue
contradicted the finding of the majority of the Supreme Court on truth. Mock’s
testimony on this point showed that truth is an essential element in
deciding whether expression was, as she defined it, hatred or
contempt. She also testified that it was possible for someone to
experience hate or contempt when hearing truthful statements. [Facts, p.
242] She agreed with the proposition that to make the distinction between
criticism and contempt, one had to decide whether what was being said was
factually true or not. [Facts, p. 239] She
testified that in determining how far a person was allowed to go in
criticizing a group before it became contempt, one of the factors to be
examined was whether it was “lies that are being promoted.” [Facts, p.
239] She testified that it would be appropriate in a section 13 hearing to
give the respondent the opportunity to attempt to prove the truth of the
premises upon which a respondent had based his expression. [Facts,
p. 240] It was
very clear that truth was important to Mock and she gave her most
unambiguous answer when she was asked if she defined people as
“haters” because they were lying. She replied that she looked to the
definition of propaganda and how people’s attitudes were shaped and
changed. And it was the “constant repetition of half truths, lies,
exaggerations, stereotypes, etc.” that created a climate where people
were dehumanized. [Facts, p. 240-241] Mock
considered what she called Holocaust denial to be hatred and gave seminars
to counter it. Her purpose was to help young people see where they are
being “lied to.” [Facts, p. 240] She testified about these educational
efforts repeatedly and the key importance of education to counter
“lies.” [p. 241] If
someone called her a Holocaust denier she said she would be outraged
because it would be a complete lie and would damage her reputation because
it was something “that in our society is considered to be outrageous and
false.” [Fact, p. 241] Yet, when asked directly if truth should be an
absolute defence to any allegation of hate, she demurred. Asked if truth
could promote hatred, she replied she had never actually thought about it
that way. [Facts, 241] It is submitted that Mock’s testimony consistently showed the vital importance of truth to how she perceived expression as being hate or not. She should have admitted this when asked directly but it is nevertheless clear from her testimony. Witness Bio: Alexander Tsesis
Tsesis
testified that if statements about groups were simply true, then there was
no expression of hatred. He was quite clear on this point and did not
qualify it. [Facts, p. 319] He
also testified that the assessment of truth or falsity of a statement
would be a “critical part” of the assessment of the nature of an
expression and its effect. He testified: “I think it would only be
logical for a court to inquire into its truth.” [Facts, p. 316-321 at
317] He said that a person should be allowed to prove that a statement was
true, even though it exposed an identifiable group to hatred. [Facts, p.
316]
Witness Bio: Dr. Donald Downs
It is
respectfully submitted that the testimony of the intervenors’ expert
witnesses shows that truth is an important part of determining whether in
fact words complained of are “hate” or expose to “hate.” By
failing to provide this important defence, section 13 fails to meet
the proportionality test of section 1 of the Charter. Inhibition
of creativity, thought and adaptability
Professor
Persinger gave evidence which established the extreme harm which
punishment of thought inflicts on freedom of thought, creativity,
spontaneity, and analytical thinking. A punitive setting, without a person
actually being punished, markedly reduced creativity. The first thing that
was affected was thought and indirectly verbal expression. Persinger
emphasised that creativity, the ability to integrate new ideas and to
adapt were mostly frontal lobe functions. This was the first area of the
brain adversely affected by punishment or the anticipation of punishment.
Punishment narrowed thought, increased anxiety and reduced versatility and
the general ability to solve complex problems. The range of thought was
decreased by apprehension of punishment. The
negative effects of punishment were increased if an individual did not
know what verbal expression was acceptable and what was not. Persinger
gave the example of his own university, where anxiety about what to cover
in a text caused his colleagues to simply exclude entire topics from
discussion for fear of something as small as a reprimand from the dean.
[Facts, pp. 196-203] It is
submitted that hate laws such as section 13 contribute to a reduction in
free thought about society’s problems and anxiety about punishment for
verbal expression that could threaten livelihoods or social acceptance. No
society can solve its problems if even university professors eliminate
entire topics from discussion for fear of punishment for discussing these
topics. Teaching
people to be offended and to be victims
Persinger’s
evidence showed that people experience things all the time that are
potentially personally distressful, such as failing exams. The problems
arose when people did not have the tools and strategies that allow them to
adapt and respond. When the person did not have the freedom or
ability to respond, the result was conditioned helplessness. Self-identifying
group members more likely to see “hate”
The
labeling of certain expression as “hate” will be determined by those
who see that expression as hate. The evidence of Mock established 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] In
practical terms, this means that the use of hate laws will be driven by
people who very strongly self identify with a group based on race,
religion, etc. Obviously, many people do not think of themselves primarily
in terms of race or religion or the other named groups. Their primary
identity may be as mother or father or doctor or musician. These
people will not bring section 13 complaints. Mock
herself is an example of this point. She testified that she
self-identified very strongly as a Jewish person. [Facts, p. 214] Yet,
remarkably, she was utterly oblivious to the impact this might have on how
she viewed whether something was “hate” or not. She testified she had
never considered the fact that she identified so strongly with her own
group might be affecting her judgment. Asked if she thought she should
take that into account, she replied, “I do.” [Facts, p. 215] She
became very emotional when she was shown a letter by Ernst Zundel
published in the London Free Press about his views on the
Holocaust. The letter was an extremely dry review of Zundel’s
research into the matter and ended by asking for a rational discussion and
a stop to prosecutions. She said it “hurt” to read the letter
and that Zundel wasn’t asking for a platform for legitimate discourse,
he was asking for a platform to promote hatred against Jews. She said she
identified strongly as a Jew and as someone who knew “what the pain is
of someone who has lost relatives” She believed in limitations on speech
that inflicted that pain. [Facts, 214] This
was a good example of what the Bryant-Davis paper was speaking about in
terms of the various personal characteristics which determine how someone
will react to something. Mock realized, however, that many people would
have no reaction at all to the Zundel letter. She testified that
other people would not be in the least upset by it. [Facts, p. 216] She
admitted that a large number of her supporting references in her expert
reports came from B’nai Brith or its American counterpart, the
Anti-Defamation League. She agreed that people affiliated with these
organizations would probably strongly identify as Jews. But during the
time she worked at B’nai Brith, it was never discussed that this very
strong ethnic identification might be biasing how they were perceiving
material as being hatred or not. [Facts, 217] In
terms of freedom of speech, the effect of this is extremely serious. It
means that what is labeled “hate” by tribunal decisions will be driven
by people who are extremists, that is, they are on the extreme of group
identification. This inevitably will lead to polarization, resentment and
division if the law is used to validate the views of one group and
delegitimize the views of another group. The investigation into the
Holocaust is but one example. Historical investigation in a liberal
society should be free and open; the insistence that this event is beyond
discussion can only lead to resentment by Germans and other ethnic groups
alleged to have committed these crimes. Another
example is if the law is used by religious extremists who demand that
criticism of their religion is hatred. In such a case, the law will have
the same effect as a law against blasphemy. It will be a return to a dark
time for free thinkers, those who fought to stop the persecution of
non-believers or heretics. On the
other hand, persons whose religious beliefs include the moral stance
against homosexuality will find themselves subject to section 13 for
speaking their conscience about this issue. Several complaints have
already been received under provincial human rights that pit Christian
beliefs against homosexual demands such beliefs be classified as
“hate.” Mock’s
reaction to the Zundel letter also shows there is no rational connection
between section 13 to its objective. The letter was in a newspaper,
not the Internet, so section 13 does not cover it. No reasonable person
could predict that such a dry and factual letter would evoke great
emotional hurt and in most people it wouldn’t as Mock admitted.
This incident shows no tribunal can know what will expose a given person
to hatred, or in more honest terms, what will cause a person to feel hurt
and offended.
[Enlarge]
The
examination of the chart in the Appendix setting out the complainants in
section 13 cases shows it is being used primarily by people who
self-identified as Jews and by multicultural or anti-racist groups who
support group identity rights. The intervenors, B’nai Brith, Simon
Wiesenthal Centre and Canadian Jewish Congress, wrote in their submissions
for intervention, after claiming to speak for all Canadian Jews, that Jews
relied heavily “on anti-hate speech legislation, such as section
13... for their physical and psychological security.” However, these
groups called no evidence to support this assertion at the hearing and it
is hard to envisage how section 13 would help “physical security” of
anyone. It
is submitted that ordinary Jews don’t psychologically need hate laws;
moreover, they do not use them; the three intervenors are those on the
“identity” extreme and in fact, B’nai Brith or its members made up
almost half of those who complained under section 13 who self-identified
as Jewish. [Facts, p. 93-96] And only nine such Jewish individuals or
groups laid complaints that went to a tribunal. The
testimony of Lack
of intent to expose to hatred
The
Supreme Court in It is
submitted that the evidence summarized above clearly establishes that the CHRA
has not be used as a remedial statute with respect to section 13 and the
penalty provision enacted in 1998 has imported the punishment aspect that
was absent when Taylor was decided. The
lack of a requirement of intent to expose to hatred or contempt in this
context does not minimally impair the right to freedom of
expression under section 2(b) of the Charter and therefore does not meet
the test of proportionality in section 1. Downs’
testified that the problem was compounded because identity groups were
organized to pressure for charges and complaints. [Facts, p. 289-290] No
value given to freedom of speech by CHRC or CHRT
In “That
no special provision exists to emphasize the importance of minimally
impairing the freedom of expression does not create in s. 13(1) an overly
wide or loose scope, for both its purpose and the common law’s
traditional desire to protect expressive activity permit an interpretation
solicitous of this important freedom.” [para. 81] The evidence from
this case makes it painfully clear that this trust by the majority was
seriously misplaced.
The CHRT is not a court
and not all of its members are lawyers. It has no traditional desire to
protect expressive activity as it is a statutory body with the mandate,
confirmed and upheld by Persons appointed to the
CHRT are required under s. 48.1(2) to have “experience, expertise and
interest in, and sensitivity to, human rights.” One of the human rights
tribunal members are expected to enforce is the right not to be exposed to
hatred or contempt on the basis of group identity. In both the CHRC and
before the CHRT, there is no effort or attempt to balance freedom of
speech or the press against the rights of complainants under section 13.
Not one type of communication has escaped the purview of the legislation.
Decisions have covered anonymous posts on message boards to historical
commentary. Every single complaint
brought under section 13 to the CHRT has been upheld and, since 1998,
large financial penalties imposed to punish the respondents together with
life-time cease and desist orders. While cease and desist orders are meant
to be remedial, tribunal decisions describe them as having important
“symbolic” value as a “public denunciation” of the respondent’s
actions. [Tremaine, para. 148; Zundel, para. 300; Kyburz,
para. 82]. CHRC employees as well as
the CHRT routinely dismiss any arguments to balance freedom of expression
by referring to It is submitted that the
scheme of the CHRA, the absence of any direction to balance
fundamental freedoms, and the decision in Taylor have combined in a
perfect storm to completely remove any consideration of freedom of speech
from the administration and quasi-judicial functions of the legislation.
As such, the proportionality test in s. 1 of the Charter has not been met.
Effect
of section 13 on security of the person and freedom of expression outside
of the CHRA procedures
Because the word
“hate” is simply a label that people attach to what they perceive to
be aversive stimuli (either genuinely or for political reasons), and a
word that also has pejorative connotations, as testified to by Persinger,
it means that the word is available to “teach” others what they feel
is “hate” and therefore offensive. Anything can be labeled as
“hate,” from academic studies showing racial differences in brain size
(such as Professor Philippe Rushton’s ) to letters talking about
engineering studies on rooms alleged to be gas chambers in It is submitted that this
is the devastating effect laws against hate can have, outside of the
quasi-judicial process of the CHRT. The accusation of “hate” is used
to label people and ideas as socially unacceptable, to marginalize and
isolate them, to reduce their participation in society and their
self-fulfillment . A further and very serious result is to justify
increasing violence against people who are labeled as hatemongers. It is submitted that
section 13 is being used outside the CHRA process in ways that impinge on
freedom of expression and the right to life, liberty and security of the
person under section 7 of the Charter. The facts established in
Mock’s testimony show that the laws are having a devastating effect on
the security of individuals and their right to free expression without
harassment, both physical and legal: 1.
Mock classified Holocaust denial as “hate” but had never
done a study of any authors such as Professor Robert Faurisson or
Professor Aurthur Butz who had written in this area. She classified it as
“lies” but obviously was relying on other people’s analysis to make
this determination. [Facts, p. 212]; 2.
B’nai Brith had repeatedly attempted over several years to
have Zundel charged under the hate provisions of the Criminal Code
but never succeeded. It was only when the complaint against Zundel
succeeded in 2002 under section 13, with no defences of truth or intent,
that they obtained a quasi-judicial ruling that what he had published was
“hate.” [Facts, p. 212 3.
Nevertheless, for over a decade, Zundel was pilloried by
B’nai Brith in its annual Audit of Anti-Semitic Incidents and in media
articles and interviews as a “hatemonger” because of his publications.
4.
In the Audits, people such as Paul Fromm and the respondent
Marc Lemire were also branded as hatemongers even though Mock admitted she
never attempted to have charges laid against either one. In the case of
Lemire, there were no complaints regarding him or the Freedomsite so
B’nai Brith took no action. [Facts, p. 220-221] 5.
She testified that her definition of “hate” was very
broad, much broader than legal definitions, and she didn’t think that
anyone who knew the law and the “different range of hateful behaviour”
would make the assumption that anyone named in the audits had been
criminally charged or guilty of criminal behaviour. [Facts, p. 223] 6.
After Zundel’s acquittal by the Supreme Court of Canada in
1992 on charges of spreading false news, he became the subject of violent
demonstrations outside his home by “anti-racists” who denounced him as
a hatemonger. His house was seriously damaged by an arson attack in 2005
and a pipe bomb sent to his house shortly thereafter. [Facts, Neumann
testimony; Mock at p. 272-280] 7.
Zundel became the target of posters showing his face in a
rifle scope and another showing his house and inviting people to firebomb
it (it was almost destroyed by arson). He was described as the
hatemonger who had escaped justice. 8.
B’nai Brith and the Canadian Jewish Congress and other
“anti-racist” groups began campaigns to have Zundel charged under the
hate laws, using language inciting fear of Zundel and labeling him a
dangerous person who was a threat to Jews. [Facts, pp. 272-280] 9.
Violent demonstrations of “anti-racists” took place
outside the hearings of the section 13 case against Wolfgang Droege and
the Heritage Front and the house of Gary Schipper, the person who read the
telephone messages, was trashed in an extremely violent attack by a mob.
[Facts, p. 263-271; also, testimony of Neumann] 10.
Paul Fromm was followed and intimidated by
“anti-racists” during one of the section 13 hearings, a demonstration
took place outside his house by Anti-Racist Action in which threats to
burn down his house were made. A meeting to raise money for Lemire’s
section 13 defence was broken up by Anti-Racist Action and people who
tried to attend the meeting were followed to a coffee shop and
intimidated. In conjunction with the demonstrations, flyers were put out
identifying Fromm as a person who was defending “hatemongers” in
section 13 cases. [Facts, Fromm testimony] 11.
Lemire’s car was vandalized by a person scratching
“Nazi” in the hood in 2006, after the complaint was laid against him.
[Facts, p. 329] 12.
In Mock’s work at B’nai Brith, she never spoke to Zundel,
Fromm, Lemire or any of the other people she labeled as “hatemongers”
in the Audit of Anti-Semitic Incidents. [Facts, p. 228] Persinger testified that
when you have groups of people saying, “I feel offended” and they
reinforce each other, it reinforces and increases the impact on the
individual. [Facts, p. 194] By constantly saying that Zundel and others
are hatemongers who are lying and dangerous, identity groups like B’nai
Brith increase the impact on individuals in their own community,
instilling even more fear and offence. He stated that the label
culture gave to a word or behaviour, determined how the person
perceived it. [Facts, p. 201] By labeling Zundel and his ideas as
“hate”, B’nai Brith profoundly influenced the culture in Like a runaway train,
however, labeling will not stop with Zundel and other groups are now
realizing that the “hate” label is the way to win the war of ideas by
simply discrediting and silencing opponents. Downs testified that the
real danger of hate laws was that people who had a truth to be spoken and
wanted to make a constructive criticism, were afraid to either because
they would be prosecuted or because they would be seen as being
insensitive and therefore racist when they weren’t. [Facts, p. 293] This
has had a great chilling effect on professors at American universities,
some of whom had told Who
is being punished by Section 13
Every respondent so far in section 13 complaints has been white. All are on the right of the political spectrum although having different views. Almost all are poor and not represented by legal counsel. [Facts, p. 341; Appendix, see chart]
[Enlarge]
Downs testified that with
respect to speech codes, the clever people find their way around it, and
those who are either stupid and don't know how to tone down their language
or say the same thing in another way, or those who are just obstinate and
stick to their guns, or people who are just simply trying to be
intellectually honest about what they really think end up getting
punished. Who is being punished is
being driven by who is willing to complain. It is also driven by who
the complainant is and who he is complaining against. Fromm introduced
several complaints laid against several individuals and an anti-racist
organizations, police and major media websites which were dismissed as
being either vexatious or not covered by section 13. The complainants were
investigated by the CHRC for their political associations and beliefs.
[Facts, p. 140, 343-345] A double and very
political standard is being used to determine who can use section 13 and
who cannot; worse, who will be subject to it and who will not. The
complaint against CAERS was a mirror image of the case against Lemire, but
they were handled in completely opposite ways. The steps Lemire took to
remedy the complaint were ignored and the complaint proceeded. EFFECT
OF EXTENSION TO THE INTERNET
Amount
and type of information now falling under Section 13
It is submitted that
section 13 fails all branches of the proportionality test because of the
sheer amount and type of publications and communications which it now
covers, including those of the press. The evidence of expert
Witness Bio: Bernard Klatt
Section 13 previously did
not cover newspapers or magazines or books or video or audio
documentaries. Allowing the CHRC, the CHRT and a complainant to use
the full powers available under the legislation against the press is an
unacceptable violation of section 2 (a) and (b) of the Charter, given that
there are no defences of intent, fair comment on matters of public
interest, and truth. There is no rational
connection between section 13 and is objectives when books, newspapers and
journals are freely available and legal in print versions. An example is
“The International Jew” which is one of the matters complained of in
this case. It is a historical work freely available in public, research
and depository libraries, as shown by the evidence. [Facts, p. 26] An
order banning the work from the Internet has no effect because the work is
still freely available in other media. When virtually the entire
store of knowledge is now on the Internet, there is no limitation on what
material might “expose to hatred and contempt.” The Bible has already
been found to contain hateful words; historical works may contain ideas
that expose many ethnic groups and religions to hatred. Scientific studies
may expose to hatred. Newspapers and
editorialists across Section 13 cannot meet any
proportionality test in such circumstances. Internet
is interactive unlike telephone recordings
In Taylor, Dickson
C.J. in considering the nature of the medium of the telephone held that he
agreed with the findings of the CHRT in Nealy v. Johnston that the
combination of the telephone and hate material was particularly insidious
because it was “one which gives the listener the impression of direct,
personal, almost private, contact by the speaker, provides no realistic
means of questioning the information or views presented and is subject to
no counter-argument within that particular communications context.” [para.
78-80] The medium of the Internet
is obviously totally different. It is a democratizing medium which
allows public discourse by people who previously had no means to
participate meaningfully in public debates or issues. The Internet provides
every means of questioning information and of counter arguing. One can put
up a website, write comments on message boards or comment boxes, write
essays which can be put on websites or sent out by email or text
messaging. Internet message boards and blogs give visitors the immediate
ability to respond to messages with equal prominence as the original
posting. As a good example, in the Lemire case, a posting by Ian MacDonald
was immediately followed by a diametrically opposing viewpoint. The Internet gives the
free opportunity to respond, as covered in the expert report of Persinger
and in his testimony, and full opportunity for the educative functions of
the CHRC and any other group which wishes to rebut what they consider to
be “hate.” Internet
Service Providers are not a public utility
One of the most insidious
impacts on freedom of expression arises from the fact that access to the
Internet is provided by private businesses, called Internet Service
Providers or ISP’s, which do not have common carrier status in Canadian
law. When section 13 was
limited to messages communicated by telephone, access to the messages
could not be terminated simply by pressuring the telephone company to
disconnect the telephone service. Section 36 of the Telecommunications
Act 1993, c. 38 provides: 36.
Except where the Commission approves otherwise, a Canadian carrier shall
not control the content or influence the meaning or purpose of
telecommunications carried by it for the public. Section 13 was enacted at
the request of Attorney General of Ontario who had initially attempted to
shut down John Ross Taylor’s telephone messages by pressuring Once section 13 was enacted, the common carrier status of telephone companies forced those wishing to shut down telephone hotlines to complain to the CHRC and undergo the procedure set out in the statute which included a public hearing and an opportunity for the respondent to make submissions and tender evidence. This situation has now
changed with the extension of section 13 to computer communications,
including the Internet. As ISPs do not have any common carrier protection,
they were quickly targeted by the CHRC and by NGOs such as the Canadian
Jewish Congress, B’nai Brith and the Simon Wiesenthal Centre (SWC), the
intervenors in this case. The first public
controversy which arose concerning the liability of ISPs for alleged hate
messages involved In the 1990’s Klatt had
an ISP business which hosted a number of websites. Klatt received a
telephone call from Sol Littman of the Simon Wiesenthal Centre who asked
him to remove certain websites he was hosting. Before Klatt had a
chance to too look at the material, the SWC held a press conference.
Klatt’s hometown of Oliver was painted as Klatt’s position was
that he had no legal expertise to determine whether something was hate or
not and neither did the SWC. He therefore refused to take down the
websites. His position was in line with that of Electronic Frontier When Klatt shut down his
ISP business, another ISP took over his dialup clients but refused the
controversial websites as it was a “community business” and didn’t
want to get into controversy. [Facts, p. 180-181] Klatt’s experience was
the first shot in what has become a concerted effort by the CHRC and its
“stakeholder” groups such as the Canadian Jewish Congress, to pressure
or coerce ISPs into removing websites unilaterally without need for a
hearing before the CHRT. In the mid-1990’s, the
CHRC began approaching ISPs even though section 13 at that time was
limited to telephone messages. It had announced in public speeches by the
Deputy Chief Commissioner that it considered it had jurisdiction over the
Internet and would accept complaints about material transmitted over it.
[Facts, p. 108-109] In 1994 and 1995,
officials of the CHRC wrote to and met with the administrators of the
National Capital FreeNet “to discuss how to deal with the use of the NCF
for the posting of messages which may contravene section 13...” A
protocol was suggested to NCF for dealing with hate messages whereby the
CHRC would notify NCF of messages considered to be hate messages and NCF
would take appropriate action. This could include warning the offending
member or terminating or suspending membership. Suggestions were made that
user agreements contain a clause prohibiting the use of the NCF to
communicate hate on the prohibited grounds and that this would “limit
your liability.” [Facts, p. 114-116] The CHRC has continued
this pressure on ISPs and expanded it to include foreign websites having
no relation to A letter was written to an
American ISP hosting the Zundelsite with the result the website was
removed as being contrary to the ISPs acceptable use policy. [Facts, p.
117] This was done even though the Zundelsite is legal in the CHRC senior policy analyst
Harvey Goldberg testified there were no policies with respect to the
sending of letters to ISPs and no policies regarding the method of
approaching ISPs. He saw no problem with the letters since the CHRC
was simply asking corporate ISPs to be aware of the laws of Goldberg justified all
contacts with ISPs under section 27(h) of the CHRA. It was part of the
persuasive part of their mandate. As a policy analyst, he believed it was
appropriate for the CHRC to seek to censor material before a hearing.
ISPs, represented by the industry organization, Canadian Association of
Internet Providers, had taken a “constructive and collaborative”
approach with the CHRC. [Facts, p. 117-120] As part of this work,
justified under s. 27(h), Goldberg and other members of the CHRC discussed
the use of filters by ISPs (to filter out certain words), the terms of
acceptable use policies and complaints procedure models having the goal of
avoiding litigation. Goldberg clearly admitted
that the CHRC wanted to work “proactively” using the powers under
section 27(h) and that meant hate messages being dealt with before the
problem reached the stage of a complaint being laid. The goal of the CHRC
meeting with CAIP was to set up systems to avoid complaints and avoid the
CHRT. [Facts, p. 121] The CHRC expected ISPs to
know what material constituted hate under section 13. The ISPs were
advised that the standard to apply was set out in It is clear from the
testimony of Goldberg and the extensive emails and other correspondence
going back and forth between ISPs and the CHRC that the guarantee to
freedom of speech has been gravely damaged by the extension of section 13
to the Internet. The CHRC’s goal under
section 27 is to ensure ISPs quickly deal with troublesome websites and
the ISPs goal is to avoid a Klatt-like controversy which smears and
defames them as “enablers” of “hate” and exposes them to liability
under section 13. Without the protection of common carrier status,
ISPs are extremely vulnerable to this type of public tar and feathering
and extremely vulnerable to complaints under section 13 unless they
quickly remove material complained of. The CHRC is not the only
actor in the drive to use ISPs as the enforcers of section 13 where
censorship actions are unseen and unknown to the public and where the
website owner had no recourse but to find another ISP. Richard Warman testified
that he had complained to Bell Sympatico about material posted by Tomasz
Winnicki. When He admitted to contacting
a number of ISPs over the years in order to pressure them to shut down
websites, including the ISP hosting the website of Fred Kyburz against
whom he filed a complaint under section 13. [Facts, p. 85] The Kyburz
decision found: “Richard Warman testified that in March of 2001, he became aware of
the Patriots on Guard website, through his involvement in human rights
work. He contacted Mr. Kyburz’ Internet service provider, alerting it to
the nature of the content on the site. As a result, service to the site
was cut off, and the site was shut down. According to Mr. Warman, the
Patriots on Guard web site was not accessible for several days in April of
2001, although it was back up within a couple of days, through a different
service provider.” [Decision, para. 35] Warman advised his
audience in a 2003 speech that it was possible to “shut down hate
mongers via corporate pressures” on ISPs by explaining to them that they
were responsible for their subscriber’s content. [Facts, p. 85] His own
experience obviously proved the truth of his statements. The threat of section 13
to ISPs is not theoretical. Dean Steacy testified concerning the complaint
filed against AOL Canada about messages posted on its message boards on
the same-sex marriage debate. The complaint against AOL was dismissed
because it took “appropriate” actions: it removed the messages,
changed its acceptable use policies, put keyword filters on and simplified
the process for an individual to complain. The filter prevented
certain language from being posted. The changes in the user policies made
it clear that violators would be cut off from their AOL account in the
event of a violation. [Facts, p. 143-145] The Lemire case itself is
another example of the determination of the CHRC and complainant Warman to
hold a small provider of a forum for people to chat and communicate,
liable for anonymous posts made to that forum. Section 13 will not shut
down very large ISPs but it has the power to shut down the Lemire’s and
bloggers who host message boards and comment boxes. The remedial steps
Lemire took did not stop the proceedings as they did for CAERS and AOL. He
was treated differently and there was a political and punitive purpose in
continuing the proceedings. A major player in
pressuring ISPs to control content is the Canadian Jewish Congress and its
efforts show perhaps most chillingly where section 13 will take
Canadians’ rights to freedom of speech on the Internet. A letter from the CJC to
the CHRC set out what it wanted: “Broadly
speaking, the recommendation is for a partnership between Canadian police
services and the Canadian Human Rights Commission to analyze foreign-based
website to make a determination as to whether a particular site would, if
it or its owner was located in The CHRC refused this
offer as it felt such a role was inconsistent with its mandate and could
subject it to accusations of conflict of interest if it was making
determinations that certain material came within section 13 outside the
complaints process and then the same material was complained about. Farber
met with ISPs and urged them to devise a protocol based on existing law
that would allow them to remove hateful material at their own discretion.
[Facts, pp. 125-128] The effect of section 13
is devastating because ISPs cannot and will not resist pressure on them to
remove websites alleged to be hate. These pressures are coming from the
CHRC, a body with the legislative ability to lay complaints against them,
and from powerful special interest groups such as the Canadian Jewish
Congress and the Simon Wiesenthal Centre which have access to the media
and the ability to cause public controversy. The Klatt case provides the
classic take-down protocol consisting of defamation, smears, calls for
criminal prosecution and the ending of an ISP business, in the instance of
a stubborn ISP refusing to take material down unless ordered to by a
judicial authority. ISPs do not have the
expertise or interest to determine what is “hate” under section 13 and
what is not. Klatt made this point during the attack on him by the
SWC in the 1990s. If material is to be censored as “hate” it must be
done in a judicial setting with due process and the right to be heard and
a right to judicial review. This backdoor to
censorship did not exist in the case of telephone messages. It exists with
respect to the Internet, which has become essential in today’s
information society, and which contains information on a scale not
envisioned when section 13 was passed. Those who have the power
to cause public controversy in the media can cause business loss to the
ISP. And the threat of a section 13 complaint remains if the pressure does
not initially work. Warrants
to search respondent’s home and computers
Under s. 43 of the CHRA,
the CHRC has the power on an ex parte application to the Federal
Court to obtain a warrant to enter and search any premises “that there
are reasonable grounds to believe that there is... any evidence relevant
to the investigation of a complaint...” Investigators are entitled to
use force if the warrant so specified and a peace officer is present. The investigator is
entitled to carry out such inquires as are reasonable necessary for the
investigation of a complaint, including inspecting and obtaining copies of
books or any other documents. There is no doubt this would include an
inspection of computers and hard drives. This means that simply
upon the filing of a complaint under section 13, perhaps for posting on a
message board, a person can be subject without notice to a search of his
home and copies of his computer or hard drive taken by a CHRC
investigator. Once documents are in the possession of the CHRC, they are
disclosed to the complainant and all other parties if the matter goes to a
hearing, pursuant to the Rules of Procedure of the CHRT. This is not conjecture as
a copy of the hard drive of respondent James Richardson was provided to
Richard Warman under the disclosure rules of the CHRT after the CHRC had
obtained it from It is submitted that the
extension of section 13 to the Internet and all computer communications
has given the complainant and the CHRC almost unrestricted access to
information which is a violation of respondent’s right to privacy and
security, contrary to section 7 of the Charter. It will chill free
expression by Canadians when they decide it is no longer worth risking all
loss of privacy.
The
right to speak anonymously
The right to free
expression must include the right to speak anonymously. Almost all people
posting on message boards use pseudonyms to mask their true identity,
including status and other personal characteristics. The right to speak
anonymously is an important aspect of political dissent and in speaking
openly and honestly in forums where controversial issues are being
discussed. Under s. 43, warrants can
be obtained to obtain subscriber information from ISPs to unmask the
identity of anonymous posters. Warrants were obtained in the complaint
against AOL Canada, a case in which anonymous posters were discussing the
same-sex marriage issue, a highly controversial social and political
matter which raised passions on both sides of the question. It is
submitted that such posters should expect the right to anonymity unless
and until a sufficient basis has been made that their identity be
revealed. Instead, the CHRC was able to obtain their subscriber
information, including names, addresses, telephone numbers and perhaps IP
addresses on an ex parte application where the only thing they needed to
prove was a complaint and that there were “reasonable grounds” to
believe “relevant” evidence was available at the premises. The
standard for obtaining the warrant is so low that it can be obtained
against an ISP simply by proving a complaint. There is no requirement that
the CHRC establish that the complaint has any basis, or any chance of
success. In 2005, a complaint laid
against a John Doe resulted in the CHRC using its warrant power to
identify another individual through a post office box. A complaint and
subsequent warrant can be abused to intimidate message board hosts, ISPs
and bloggers who have comment boxes. These are vibrant and vital aspects
of expression on the Internet. The standard for unmasking the
identity of such anonymous posters is so low that it will chill potential
posters from exercising their right to speak anonymously. The possibility
of losing anonymity in a future complaint can intimidate anonymous posters
into self-censoring their comments or simply not commenting at all. This
chilling effect is aggravated by the meaninglessness of the words
“hatred and contempt.” [John Doe No. 1 v. Cahill, 2005, Abuse
and corruption of the CHRC and its processes
During the hearing, the
CHRC announced that it had had a policy of not disclosing to respondents
the fact that it was using false identities on message boards and emails
to contact respondents and engage them in conversation on message boards
and in emails. [Facts, p. 167] This was in violation of
the rules of the CHRT which require disclosure of all relevant documents
or an identification of documents for which privilege is claimed. The evidence showed that
the CHRC had at least two false identities which its investigators in
section 13 cases used. One was “Jadewarr” and one was “Odensrevenge.”
Using the Jadewarr account, investigator Dean Steacy signed on to several
message boards, including the Freedomsite message board. There is no
evidence he posted any racist material, but he did attempt to engage
Lemire in conversation about a complaint Lemire had laid under section 13.
He admitted that if Lemire had replied, depending on what he said, Steacy
could have used it to dismiss Lemire’s complaint as vexatious. [Facts,
p. 156-158] Steacy also testified that
he had signed up on the Freedomsite when the complaint initially came in
but he couldn’t remember if he posted anything. [Facts, p. 159] None of
this was disclosed to Lemire. There was no control on
the use of the accounts which were used by several investigators. No check
was made on what posts were being made by the investigators on message
boards or whether respondents were being engaged on message boards.
[Facts, p. 162] There were no CHRC guidelines for investigators
about what kind of posts they could make using aliases. [Facts, p. 166]
There was no central registry to know the various false identities used
not only by investigators on message boards, but also police [Facts, p.
171] In the Bahr case,
police witness Sgt. Stephen Camp admitted that a poster on Stormfront
named “Estate” was in fact an Steacy did not think the
policy or legal members of the Hate Team knew about the use of these
accounts. [Facts, p. 159] Goldberg, the policy member, denied knowing
anything about “Jadewarr.” [Facts, p. 114] The CHRC had never made a
study if any of the messages that were subjects of complaints were in fact
incited by investigators or police or complainants. [Facts, p. 166] The decision by the CHRC
not to follow its legal obligations of disclosure to the CHRT resulted in
evidence being given to the tribunal which was misleading and deceptive.
This occurred in the The culture of anonymity
on message boards, which encourages free expression of honest and
controversial views, was used and exploited to the detriment of
respondents and tribunals hearing these cases. It raises the question of
how many other anonymous posters on the message boards which have been and
are the subject of section 13 complaints were in fact police, CHRC
investigators or other anti-racist activists. There is no way of knowing.
In this case, the Tribunal is being asked to find Lemire liable as
webmaster for anonymous postings on a message board. How many of those
postings were planted in order to support this complaint or to entice
others to post messages. The extension of section
13 to the Internet has opened up avenues for abuse of process which were
unavailable when it was limited to telephone lines. The failure to
disclose documents and information has resulted in tribunal proceedings
which were unfair and where respondents were denied natural justice. The
effect on the freedom of speech by this type of deceit, made possible by
the extension of section 13 to the Internet, is one which means section 13
and 54 cannot meet the test of proportionality. CHRC
exchange of personal information with police
Both section 13 and
section 319 of the Criminal Code deal with the restriction of
“hate”. As a result, both the CHRC and police have pursued the same
people under both provisions. This has been accelerated by the fact that
Warman has laid criminal complaints against respondents after first laying
complaints against them under section 13 about the same material. [Facts,
p. 78-79]
In this case, Warman laid
criminal complaints against Lemire and Harrison after laying the section
13 complaint. Police contacted the CHRC to get copies of evidence but
didn’t follow up after being requested to put it in writing. This
information was not disclosed to Lemire for over three years. [Facts, p.
31-32] Respondents to human rights proceedings, a civil procedure, are
given no warnings that anything they might say or provide to the CHRC will
be given to police, for use in possible criminal proceedings. The
notification letter they are sent when they are initially informed of the
complaint asks them for information which police could use in criminal
charges on the same material. The rights of respondents under s. 7 of the Charter
are thereby violated when this information flows from the CHRC to police. Police information flowing
to the CHRC means that the CHRC is gaining access to information from
sources such as surveillance, motor vehicle databases, and CPIC that only
police have access to. This could be a violation of the warrants issued
under the Criminal Code for search and seizure purposes. Summary
Section 13 has in fact
become two provisions: It deals solely with
effects when no penalty is requested under section 54. But what will cause
someone to be “exposed” to hatred or contempt cannot be predicted or
known. The offense which one person might feel will not be felt by
another. It will be totally dependent on the person’s personality, life
experiences, strength of group self-identity and so on. There is no
universal “psychological distress” that warrants the violation of the
free speech of Canadians. Instead of teaching people to be “victims”,
people should be taught that free speech is their right and they have the
power to “talk back.” Today, with the Internet, that power to “talk
back” has been brought to everyone in a meaningful and extraordinary
way. The other section 13 is
the one where a penalty is demanded by the complainant and the CHRC as in
this case. This is the section 13 that has now been used in every single
case decided since the provision was extended to the Internet (except for
Eldon Warman as noted above). It brings penal consequences, stigma, and
moral blameworthiness. It transforms the provision into a quasi-criminal
offence with none of the procedural or substantive protections accorded a
person charged under the Criminal Code. Parallel criminal
proceedings under s. 319 of the Criminal Code have been instituted
in several cases, subjecting the respondent to double jeopardy and seizure
of his computer and other material by police.
[Enlarge]
In both cases, section 13
has never been used as a remedial provision. The study of how cases are
resolved, set out above, shows it is not used to remedy discrimination but
punish and rebuke the persons caught in its net. The CHRC and complainants
do not want “remedies”, they want orders that can be used to imprison
the respondent later for any subsequent contempt. Section 13 is a violation
of the rights of Canadians to freedom of conscience and expression and
their rights to life, liberty and security of the person guaranteed by the
Canadian Charter of Rights and Freedoms. These violations cannot be
justified under s. 1 of the Charter. Order
Requested
The respondent requests
the orders set out in his motion dated December 6, 2005. Dated August 6, 2008. Solicitor for
the Respondent
Marc Lemire .Section
13 of the CHRA is the single largest threat to Freedom of Speech in WHERE?: Argus
Ballroom WHEN? Sept
15 – 17, 2008 9:30am
to 5:00pm daily [See
a Map of Location] | [Get
Directions to hearing]
On November 25, 2005, Marc Lemire and his courageous lawyer The 2005 Constitutional motion can be
read > here
< The 2008 final submissions can be read > here < and > here < After 26 hearing days, 8 interveners and 11 witnesses
spread across two years and 4 The National Post has described the grilling the CHRC
took by Journalist and Free Speech advocate Ezra Levant
described the case against Lemire on his Blog:
“And to say the
CHRC's section 13 thought crimes case against Marc Lemire has backfired is
an understatement. Not only have his counterattacks blown the lid of the
CHRC's corrupt tactics, such as their practice of posting anonymous,
bigoted messages online, but their illegal hacking into a private
citizen's Internet account has now attracted the scrutiny of At the start of the Lemire hearing, no one in All the evidence uncovered during the last 5 years
will be brought out into the open. From the CHRC’s spying
apparatus to their totalitarian investigative techniques, to the
absurd lie the CHRC is pushing ... that “hate speech” causes mental
“trauma”. The complete abuse
of process in the Lemire case to even the alleged stealing
a private woman’s internet connection. In a multimedia presentation,
your eyes will be opened to what the CHRC really represents, and what a
revolting crowd the “human rights” industry really is. You’ll
be shocked to learn about the hate filled bureaucrats who, with the
immunity of the state, are able to propagate
some of the worst racist material online. Are they prosecuted?
NO,
actually promoted… Sacred cows will be crushed. 30 years of censorship
is about to come to an end! Be part of history in the making, and
come out to show your support. Show that Canadians love freedom, and
show the Tribunal, that Canadians will stand as silent witnesses to their
trampling of 500 years of our enshrined rights. FREEDOM
WILL BE A VICTIM …. NO LONGER!!!! Closing Arguments will be held at: Holiday
Inn Argus
Ballroom Sept
15 – 17, 2008 9:30am
to 5:00pm daily
Driving Directions FROM THE Q.E.W. ( ·
EXIT 118 ( ·
TURN
FROM HWY 401 (EAST OR WEST) ·
EXIT 328 ( ·
TURN [See
a Map of Location] | [Get
Directions to hearing]
It’s time to end the censorship of the extremist
Canadian Human Rights Commission! Stop
Section 13 of the Canadian Human
Rights Act http://canadianhumanrightscommission.blogspot.com
Support Marc Lemire's Constitutional Challenge
Be part of our team and contribute what you can to defeat this horrible law and protect Freedom of Speech in
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When
asked what value the CHRC gave to freedom of expression in its
investigation of section 13 complaints, investigator Dean Steacy replied
that he gave it no value as it was an American concept. [Facts, p.
151-152] Goldberg testified that Commission staff and investigators
received no training in the concept of freedom of expression. [Facts, p.
109]
Documents
disclosed after the March 25, 2008 hearing show that the CHRC regularly
communicated with police forces about respondents, exchanged information
and obtained evidence from police that had been seized in raids pursuant
to warrants under the Criminal Code. [Facts, p. 173-177] Evidence
obtained from police included Crown briefs setting out the most personal
information about respondents, information obtained from motor vehicle
databases, and CDs of personal hard drives seized from the home of James
Richardson and, apparently, Alex Kulbashian. The CD copy of 
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