The Freedom-Site: Marc Lemire demands adjournment of Canadian Human Rights Tribunal until Federal Court rules on CHRC abuse of Section 37

Marc Lemire demands adjournment of Canadian Human Rights Tribunal until Federal Court rules on CHRC abuse of Section 37

This is a motion for an adjournment sine die pending the disposition of the respondent’s application to the Federal Court of Canada in Lemire v. Warman et al., Court File No. T-860-07, for a determination of the claim to public interest immunity by the Canadian Human Rights Commission pursuant to section 37 of the Canada Evidence Act (hereinafter referred to as “the CEA.”)

The respondent filed the Notice of Application on May 17, 2007. The application concerns the invocation of section 37 of the CEA on May 9 and 10, 2007 by the Commission during the testimony of Hannya Rizk and Dean Steacy. It also concerns the invocation of section 37 by the Commission in response to the motion by the respondent for a subpoena of Bell

Canada

Notices of Appearance in the proceeding have been filed by the Canadian Human Rights Commission, the Attorney General of Canada, the Canadian Association for Free Expression Inc. and the Canadian Free Speech League.

The Law

It is submitted that the normal and expected procedure where a section 37 objection has been made is for the inferior court or tribunal to adjourn the proceedings to allow the matter to be taken to the superior courts. The following are examples from the case law:

1. In R. v. Richards (1997), 115 C.C.C. (3d) 377 (Ont. C.A.), the judge in a preliminary hearing adjourned the inquiry to allow the Crown to bring an application under s. 37 of the CEA for an order prohibiting disclosure of the information. On appeal, the Ontario Court of Appeal stated:

“¶ 2 In the course of the preliminary inquiry, the Crown objected to disclosure of information pertaining to the location from which the police officer observed the alleged sale and the description of the automobile used by the undercover officers when the alleged drug purchase was made. Judge Casey, of the Provincial Division, concluded, correctly in our view, that the information was relevant to the issue of identification, and could not be excluded under the very limited power to exclude relevant defence evidence set down in R. v. Seaboyer (1991), 66 C.C.C. (3d) 321 (S.C.C.) at 391. We do not read Judge Casey's reasons as having determined the Crown's public interest privilege claim. Instead, he adjourned the inquiry to allow the Crown to bring an application under s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 for an order prohibiting disclosure of the information.

¶ 16 In those cases where the judge conducting the preliminary inquiry orders disclosure, there will be some delay in the completion of the preliminary inquiry if the Crown chooses to bring a s. 37 application. The Crown also has the option of avoiding the delay by terminating the preliminary inquiry and proceeding by way of a direct-line indictment under s. 577.2 The resultant delay, while unfortunate, is necessary to give effect to Parliament's clear intention that the Crown have access to the superior court before being required to disclose information which it claims is protected by the public interest privilege.”

2. In R. v. Vaillancourt [1995] O.J. No. 898 (QL) (Prov. Div.), a preliminary inquiry was adjourned so that an objection under section 37 could be adjudicated in the superior court:

Crown counsel, during the court of defence counsel's cross-examination of one of its witnesses on a preliminary inquiry, has objected to that witness, Detective Gauthier, answering certain questions by certifying orally pursuant to section 37(1) of the Canada Evidence Act, that the witness' answers should not be disclosed because they would reveal the identity of a police informer. Crown counsel objected to this disclosure after the witness had refused to answer certain questions and I had ruled that the information sought was relevant to the defence and had compelled the witness to answer.

The preliminary inquiry was then adjourned, so that the issue of police informant privilege could be determined by application to the General Division of this court, pursuant to the procedure set out in section 37(3) of the Canada Evidence Act.”

3. In Regina v. Philip (1993), 80 CCC (3d) 167 (Ont. C.A. ), the trial proceedings were adjourned to allow counsel to challenge the privilege claim by the RCMP under section 37 of the Act. The Ontario Court of Appeal reviewed the chronology in part as follows:

“June 12, 1991 -- The trial commences with a voir dire to determine the admissibility of the seized material.

June 13, 1991 -- After approximately one and one-half days of evidence on the voir dire, counsel for the R.C.M.P. appears and objects to the disclosure of certain material in the police files. The objection is based on "public interest" grounds. Counsel provides certificates under s. 37 of the Canada Evidence Act, R.S.C. 1985, c. E-10, certifying the privilege claim. The trial proceedings are adjourned to allow counsel to challenge the privilege claim in the superior court as provided for in s. 37(3) of the Canada Evidence Act.”

4. In Re Attorney General of Canada et al. and Sander (1994), 90 CCC (3d) 41 (BCCA), the court held that an application under section 37 to a superior court is an independent inquiry and not an interlocutory appeal or a review and that therefore the trial proceedings should be adjourned to allow the superior court to make its determination under the provision. It held:

“A s. 37 application is an independent inquiry which, by statute, may require the attention of a judge other than the trial judge. Section 37(3) makes that plain: 37(3) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a court, person or body other than a superior court, the objection may be determined, on application, in accordance with subsection (2) by

(b) the trial division or trial court of the superior court of the province with which the court, person or body exercises its jurisdiction, in any other case.

Thus, when an objection to disclosure under s. 37 is made at trial by the Crown in a court other than a superior court, the trial proceedings should be adjourned so the objection may be determined in a superior court. Construing s. 37 in that way, it cannot be said to authorize an interlocutory appeal or a review. “ [at page 5 of attached case]

The authorities indicate that pursuing one claim does not exclude the other. The problems experienced in this case arise from failing to separate the two claims, and in dealing with the s. 37 application as if it was a review of the disclosure order made at trial. Furthermore, if the provisions of s. 37(3) had been employed, the application at trial for disclosure should have been objected to immediately, with a request for an adjournment to allow the Crown to pursue the s. 37(1) application. If that procedure had been employed, and if the proper considerations had been advanced on the s. 37(1) application the confusion could have been avoided. [at page 9 of attached case]

5. In R. v. Sander (1995), 98 CCC(3d) 564 (BCCA), the court held that a 40 month delay in the accused’s trial caused by an objection by the Crown under s. 37 of the CEA infringed his right to a trial within a reasonable time. The trial had been adjourned while the section 37 application was taken to the superior court. The B.C. Court of Appeal, in upholding a stay of the proceedings, held:

¶ 29 Where the trial is in Provincial Court , an application under s. 37 operates to interrupt the trial, to remove to another court the determination of an issue ordinarily determined by the trial judge. The judge hearing the s. 37 application examines the documents to see whether the trial judge should see them.

The case law under section 37 of the CEA clearly indicates that it is a separate and independent inquiry and not an interlocutory appeal. Case law stating that judicial review from an evidentiary ruling during a hearing is premature and inappropriate is not applicable in these circumstances. This is obviously so in this case as the Tribunal did not make any rulings whatsoever on the section 37 objections, acknowledging it had no jurisdiction to do so.

It is established procedure for the hearing or trial to be adjourned while the determination of the objection under section 37 is made to a superior court.

The Commission has invoked section 37 and it must be aware that an application to a superior court will entail delays in this hearing. It has nevertheless chosen to use an extraordinary procedure in order to protect information from disclosure. The respondent is entitled under the law to a determination of whether this information should be disclosed as it goes directly to the constitutional issues raised in this case.

The respondent therefore requests that this matter be adjourned sine die pending a final determination by the Federal Court in Lemire v. Warman et al., Court File No. T-860-07 and the completion or expiration of any appeals therefrom.

CHRC Abuse of Section 37 of the Canada Evidence Act to cover-up the misdeeds of the CHRC

It’s all out war in the Marc Lemire Internet case. The Canadian Human Rights Commission, like some mobster in a U.S. trial who keep invoking the Fifth Amendment, is trying to keep the veil of secrecy wrapped tight around its spying operations on Canadian Internet dissidents. It’s tool of choice is Section 37 of the Canada Evidence Act.

“A Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest. If an objection is made under subsection (1), the court, person or body shall ensure that the information is not disclosed other than in accordance with this Act.”

“Public interest” is a sweeping catch-all and can include the safety of any person. The mischievous effect of invoking these magic words – “Section 37” – is that the information cannot be revealed or the question even asked. The only route of appeal is to a Federal Court and that’s where the Marc Lemire Defence Team is now headed.

We know, according to Richard Warman’s testimony in Warman v. Jessica Beaumont that a page was downloaded from Stormfront using the sign-in name ”Jadewarr.” Warman testified that he was not “Jadewarr” but that the document was downloaded in his presence by the Commission. When Marc Lemire’s attorney Barbara Kulaszka asked CHRC investigator Dean Steacy whether he knew who “Jadewarr” was, Commission lawyer Giacomo Vigna squelched as answer by invoking Sec. 37.

Similarly, when Miss Kulaszka asked Mr. Steacy whether he’d ever signed on to a political message board and made postings, Mr. Vigna used Sec. 37 to prevent an answer. We know that “Jadewarr” extensively discussed Sec. 13.1 complaints with people on Stormfront and has even tried to engage victim/Respondent Marc Lemire in conversations – perhaps to entrap him?

The Member (Judge) in this Tribunal lawyer Athanasios Hadjis of Montreal expressed serious reservations at Vigna’s wholesale use of Sec. 37 and all but invited the Defence to challenge Vigna in Federal Court: “Don't say it's privilege. It's not privilege, it's 37. It is a large tool that you have chosen to use, and I hope that one day the Federal Court has a chance to assess it.”

Amazingly, in the Warman v. Glenn Bahr and Western Canada for Us Tribunal, when Paul Fromm asked Sgt. Stephen Camp whether “Estate” was an Edmonton Police Officer, Sec. 37 was not invoked. Camp eventually admitted “Estate” who had posted inflammatory and racist comments on Stormfront was a police officer. [Subsequently, in Glenn Bahr’s preliminary hearing on Sec. 319 – “hate” – charges, Camp came clean and admitted he was “Estate”]

In the Bahr case, acting as his agent, I originally asked, about the identity of “Estate.” There was a bit of an argument. Camp refused to answer. Vigna them talked about "Section 38 of the Canada Evidence Act" but did not invoke it. More discussion ensued over whether the question was relevant. After it was ruled relevant by Tribunal Charperson Julie Lloyd, Camp returned to testify on the following Monday. During Constable Camps testimony, he revealed that “Estate” was an Edmonton police officer, but refused to identify which officer it was.

MR. WARMAN: -- the last point I would make is that Sergeant Camp over the break has had an opportunity to speak with his colleagues and superiors at the Edmonton Police Service as well as others -- I won't go into -- he has had a chance to confirm that there are no further ongoing issues in relation to -- we won't be continuing with the Section 37 Canada Evidence Act objection. ( Warman v. Bahr and Western Canada for Us transcript, page 683)

Interestingly, Warman doesn't continue the objection!!! Objections under Section 37 of the Canada Evidence Act can only be invoked and certified by “A Minister of the Crown in right of Canada or other official” Just what on earth is going on here? Does Richard Warman represent a Minister of the Crown or other official? If so why it this not revealed? During most of the testimony Richard Warman has done, he has testified he is doing this on his own initiative, and has no “special relationship” with the Canadian Human Rights Commission.

We are battling a secrecy obsessed Canadian Human Rights Commission bent on throttling dissent on the Internet and equally determined to keep Canadians in the dark about their spy operations. They have all the money and resources. We need your help in this ongoing battle.

	Date& Page	Question Asked	Specified Public Interest claimed	Ruling from Member Hadjis
1	May 9/07 Page: 4426	MS KULASZKA: What kind of Investigations would you do, for instance, to verify the identity of a respondent?	MR. VIGNA: Mr. Chair, it's a privilege in terms of the investigation techniques that are used. We cannot jeopardize these techniques in terms of the future and – THE CHAIRPERSON: All right, but are you invoking a specific privilege?	THE CHAIRPERSON: So you are invoking 37? MR. DUFRESNE: For this point, yes. THE CHAIRPERSON: Don't say it's privilege. It's not privilege, it's 37. It is a large tool that you have chosen to use, and I hope that one day the Federal Court has a chance to assess it. Section 37. …PAGE 4429: I am asking for some discretion to be utilized by the single party that has this tool in this room. Go ahead.
2	May 10 2007 Page 4716	MS KULASZKA: Do any investigators post on “Stormfront.org"?	MR. VIGNA: Mr. Chair, I would object based on section 37. It's investigation techniques. MS KULASZKA: I am not asking for specific e-mails, or what their names are, nothing that would threaten the Commission.	THE CHAIRPERSON: He has invoked section 37, Ms Kulaszka -- investigative techniques; public security.
3	May 10/07 Page: 4729	(reads the Warman transcript from Beaumont case. No question asked; Vigna objects immediately. Witness is excused and Vigna continues to invoke Section 37.	MR. VIGNA: The questions being asked regarding Jadewarr are the ones that I am objecting to, in relation to who is Jadewarr and what purpose -- Anything related to Jadewarr I am invoking section 37 on, as investigation techniques.	THE CHAIRPERSON: I will let the witness come back in. The topic is not off limits. The topic is on limits. I will let you ask any question you want, Ms Kulaszka. You have heard what Mr. Vigna has said, and we will see how he will choose to invoke section 37 of the Canada Evidence Act along the way.
4	May 10 2007 Page 4752	MS KULASZKA: Is there any kind of oral agreement? [Between CHRC and Police] MR. STEACY: Yes. MS KULASZKA: What is that?	MR. VIGNA: Jeopardizing the investigations and the operations of the Commission, as well as potential criminal investigations.	THE CHAIRPERSON: That is the answer. They have invoked section 37. You will have it on the transcript, Ms Kulaszka.
5	May 10 2007 Page 4759	MS KULASZKA: Have you been refused information? [From Police] MR. STEACY: Yes. MS KULASZKA: What kind of information?	MR. VIGNA: Objection, Mr. Chair. Section 37. What kind of information is being obtained or refused, I think it would be part of the investigative privilege. THE CHAIRPERSON: Say that again? MR. VIGNA: Section 37. Public interest. The information that would be disclosed or not disclosed, I think, would be all part of the same privilege, the public interest privilege, that this type of information does not need to be put in the public domain.	THE CHAIRPERSON: It is noted for the record.
6	May 10 2007 Page 4828	MS KULASZKA: Getting back to Jadewarr, do Commission employees sign up accounts on Stormfront under pseudonyms such as "Jadewarr"?	MR. VIGNA: Mr. Chair, I invoke the same thing as I did this morning on this specific question, section 37, and I base myself on the public interest and the jeopardizing of investigation techniques. THE CHAIRPERSON: You have to give me a specified public interest under the Act. MR. VIGNA: Jeopardizing investigation techniques. THE CHAIRPERSON: Jeopardizing...? MR. VIGNA: Investigation techniques and Commission operations.	THE CHAIRPERSON: So you have invoked section 37, Mr. Vigna, saying that the disclosure of that information -- that the information cannot be disclosed on the ground of the specified public interest of jeopardizing investigation techniques by the Commission. Is that what you are saying? MR. VIGNA: Exactly, and Commission operations.
7	May 10 2007 Page 4830	MS KULASZKA: My second question was: Do you know who Jadewarr is?	MR. VIGNA: The same objection as the previous one. I object o -- THE CHAIRPERSON: I won't make you repeat it. You are making the same objection.	All right. The first question was, "Does the Commission engage in pseudonyms," on which section 37 has been invoked. "Do you know who Jadewarr is?" Section 37 has been invoked. Go ahead.
8	May 10 2007 Page 4833	MS KULASZKA: To your knowledge, is Jadewarr a Commission employee?	MR. VIGNA: Mr. Chair, it is the same exact question, rephrased slightly differently, and I have the same objection. THE CHAIRPERSON: It is similar, yes. MR. VIGNA: Similar rationale, public interest, investigation techniques, Commission operations.	THE CHAIRPERSON: Thank you. We are going down the same path. Ms Kulaszka, if you want to make a complete record on this point, go ahead, but we will be getting the same objection each time from Mr. Vigna.
9	May 10 2007 Page 4834	MS KULASZKA: As part of your duties, have you ever signed up with a message board and made postings?	MR. VIGNA: Mr. Chair, I object again, based on section 37, on the grounds of public interest and jeopardizing investigations, as well as Commission operations.	MR. FROMM: Sir, the question was to past activities, nothing that is ongoing. It was: Did you, in the past, ever do this. THE CHAIRPERSON: Your point is well taken, sir, but I don't know if I can do anything.