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Canadian Civil Liberties Association
Applies for Intervener Status in the Lemire Constitutional
Challenge of Internet Censorship
CCLA supports Free Speech and an end to
Canadian Civil Liberties Association has filed a 200+ page
intervention application at the Federal Court of Canada. They are
seeking to rid Canada of Section
13 of the Canadian Human Rights Act, which is Canada’s
shameful Internet censorship legislation.
The Canadian Civil Liberties
Association is one of Canada’s premier organizations protecting freedom
of speech. According to the Affidavit of Abigail Deshman, the CCLA “has
long been concerned with the protection of civil liberties in Canada.
The CCLA has long been involved in initiatives relating specifically to
freedom of expression.”
The CCLA submissions specifically
address two key points:
- The manner in which
individuals experience the effect of a statutory scheme is a proper
consideration in the context of a Section 1 analysis when examining
a statute that, on its face, aims to operate in a conciliatory or
submission takes aim directly at the CHRC’s arguments, which claim the
Lemire defence should not have been allowed to look at the CHRC’s long
history of censorship and persecution and the fact that although the law
is 100% remedial, the CHRC has used the law to persecute and punish
people for bad thoughts and speech)
- Severance is not an
appropriate constitutional remedy in the circumstances of this case,
and in freedom of expression cases more generally.
CHRC claims that the Tribunal should have just dropped the fines
provision and that in turn will magically make the law constitutional
and not an infringement on freedom of speech)
Select submissions of the CCLA
On Section 13 lack of remedial
- In the instance case
(Lemire case), the Tribunal held that the inclusion of a penalty
provision at Section 54(1) fundamentally altered the nature of
Section 13 and, therefore, section 13 was no longer consistent with
section 2(b) of the Charter
- As a component of the
constitutional analysis, the Tribunal considered evidence that
respondents to section 13 complaints do not experience a
conciliatory, preventative, and remedial process. Rather, the
process is more prosecutorial in nature, with a focus on penalty and
- Further, the CCLA will
submit that context of this nature is an appropriate consideration
for the purpose of section 1 analysis generally. The contextual
approach forms a fundamental part of the proper inquiry into the
nature of a statutory scheme's operation. An assessment of "chill"
in a factual vacuum undermines the spirit and intent of the
reasonable limit articulated in section 1.
- More specifically, in
freedom of expression cases, the CCLA will submit that this
contextual inquiry is required.
On Severance of Fine Provision
(requested by CHRC):
- (contrary to the CHRC’s
position) Severance is not an appropriate constitutional remedy in
the circumstances of this case, and in freedom of expression cases
- The CCLA will submit that
severance of punitive provisions is generally not an appropriate
remedy to correct the unconstitutionality of legislation which seeks
to limit the right to free expression.
- The "chill" on freedom of
expression caused by the operation of sections 13 and 54(1) of the
CHRA is not remedied by carving off the penalty provisions
and refusing to apply them on a case-by-case basis.
- The very existence of
section 54(1) has coloured the underlying offence of hate messaging,
making it more intrusive on free expression than originally
envisioned by the Supreme Court in Taylor. The penalty
provisions carry significant stigma, and by consequence, a "chilling
effect" on free expression. This "chill" on speech captured by the
scope of section 13 is not rectified by simply refusing to apply the
penalty in specific cases.
Background to Lemire case:
In 2003, serial plaintiff
Richard Warman filed a Section 13 complaint against Marc Lemire for
postings on the Freedomsite message board. None of the posting
complained about were written or approved by Marc Lemire, but
because he was the webmaster of the message board, the CHRC is trying to
hold him liable.
In 2005, Lemire challenged
constitutionality of Section 13 and 54 of the Canadian Human Rights Act
as an egregious censorship provision severely limiting freedom of speech
and thought. Section 13 of the Canadian Human Rights Act is Canada's
shameful internet censorship provision.
Section 13 makes it an
offence to "likely" "expose" privileged groups to "hatred and/or
contempt." There are NO defences under Section 13! Even truth and
intent are considered irrelevant to a finding of discrimination.
The law was enacted in 1977
in order to
silence a man named John Ross Taylor for messages he recorded
onto his telephone answering machine. In the intervening 32 years, not
a single person who has been hauled up on Section 13 charges has ever
been acquitted - a 100% conviction rate.
media outlets, from Victoria to Halifax, have demanded a repeal of
Section 13 and denounced the human rights industry. Editorials commonly
refer to the Tribunal as a "kangaroo
court," and highlight how 'human rights' commissions "threaten
case against Lemire
dragged on for 5 years before the Canadian Human Rights Tribunal, and
before the Federal Court of Canada, where the CHRC was forced to admit
spy on Canadian and American websites.
Since Marc Lemire and his
courageous lawyer Barbara Kulaszka went to work, the entire landscape of
Section 13 censorship has changed.
On Sept 2, 2009, the Human
Rights Tribunal fully acquitted Marc Lemire, and refused to apply
Section 13 due to its unconstitutional provisions. The case has been
appealed by the CHRC human rights fanatics.
Messages posted on the Freedomsite message board by Craig
Messages posted on the Freedomsite message board by persons
other than Mr. Lemire or
Messages posted on the Freedomsite message board by Mr.
The “Controversial Columnists” section of the Freedomsite website
The Doug Collins Column
“Ottawa is Dangerous” Article
The Lemire Tribunal ruled that:
following the reasoning of Justice Dickson, at 933,one can
no longer say that the absence of intent in s. 13(1)
“raises no problem of minimal impairment” and “does not
impinge so deleteriously upon the s. 2(b) freedom of
expression so as to make intolerable” the provision’s
existence in a free and democratic society. On this basis,
I find that the
impairment test has not been satisfied, and that s. 13(1)
goes beyond what can be defended as a reasonable limit on
free expression under s. 1 of the Charter.
c) Conclusions with respect to
the claim of infringement on the freedom of expression
 For all the above reasons,
I find that s. 13(1) infringes on Mr. Lemire’s freedom of
expression guaranteed under s. 2(b) of the Charter,
and that this infringement is not demonstrably justified
under s. 1 of the Charter.
 This question, however, is not what is
relevant to the present discussion. The point is that, when
assessed against the characteristics of the penalty
provisions enumerated in these decisions, it is evident that
s. 13(1) has become more penal in nature (irrespective of
whether s. 11 Charter rights are necessarily
triggered). The provision can
no longer be considered exclusively
remedial, preventative and conciliatory in nature,
which was at the core of the Court’s finding in
Taylor that s.
13(1)’s limitation of freedom of expression is demonstrably
justifiable in a free and democratic society,
and thereby “saved” under s. 1 of the Charter.
I have determined that Mr. Lemire
contravened s. 13 of the Act in only one of the
instances alleged by Mr. Warman, namely the AIDS Secrets
article. However, I have also concluded that s. 13(1)
in conjunction with ss. 54(1) and (1.1) are inconsistent
with s. 2(b) of the Charter, which guarantees
the freedom of thought, belief, opinion and expression. The
restriction imposed by these provisions is not a reasonable
limit within the meaning of s. 1 of the Charter.
Since a formal declaration of invalidity is not a remedy
available to the Tribunal (see Cuddy Chicks Ltd. V.
Ontario (Labour Relations Board),  2 S.C.R. 5),
I will simply refuse to apply these provisions for the
purposes of the complaint against Mr. Lemire and I will not
issue any remedial order against him (see Nova Scotia
(Workers’ Compensation Board) v. Martin, 2003 SCC 54 at
On January 25, 2010, using
tax-payers money, the Canadian Human Rights Commission challenged the
Lemire decision, which found that the thought control
legislation of the
Canadian Human Rights Act was unconstitutional and a violation of
the Charter guaranteed rights to freedom of speech and thought.
Canadian "Human Rights" Censors file at the Federal Court of Canada
to keep their precious censorship franchise]
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In Defence of Freedom
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Books won't stay banned.
They won't burn. Ideas won't go to jail. In the long run of
history, the censor and the inquisitor have always lost. The
only sure weapon against bad ideas is better ideas.
Censorship reflects a society's lack of confidence in itself.