• Who is Marc Lemire?
• Grant Bristow
• Criminal Complaint against Lemire

• Warman on Message Board for one year.

• Mediation

• Number of Hearing Days

• Number of Lawyers against me

• Section 13 Victims – no legal representation

• Link to a copy of the immigrant poem on CHRT site

• Submissions of warman/chrc on the immigrant poem.

• Even titles are racist according to CHRC  (immigrants get free limo service)

• Harassment of ISPs (Internet Service Providers)

• What else is the CHRC doing behind the scenes?

  • Abuse and corruption of the CHRC and its processes

  • CHRC exchange of personal information with police

[58] Mr. Warman testified that the message he took from the poem was that non-white immigrants, and perhaps specifically non-white immigrants from Pakistan, are presented as "denigrating stereotypical examples" of persons abusing the welfare system, who end up bringing their extended families to Canada and further drain the system. The word "trash" is used to describe the families of immigrants. These immigrants are shown as people who make a "hobby" of "breeding". They bring down property values in neighbourhoods where they end up "driving out" white residents. White Canadians are branded as fools who allow this to happen, and if they do not like the situation, they are exhorted to "get lost".

[59] The Commission argues that the poem develops a "gross caricature of Pakistani and other East Asian immigrants to Canada" that amounts to extreme ill will and utter contempt, and which exposes persons from these groups to hatred or contempt within the meaning of s. 13.

[60] Mr. Lemire counters, in response, that the poem is a "biting and satirical commentary on how immigrants are treated in Canada at the expense of the Canadian taxpayer". He submits that the poem constitutes "core political commentary regarding Canadian immigration policies". Mr. Klatt testified that through a search using the "Google" search engine, he was able to find the Canadian Immigrant Poem, posted presumably by persons other than Mr. Lemire, on at least 397 other websites including the "Discover Vancouver" and "Country Living, Country Skills" websites. Mr. Lemire argues that this demonstrates that many Canadians find that the poem expresses something about Canada's immigration policies with which they agree - policies that are subject to criticism. I am not convinced, however, that merely because a text appears on numerous web pages, it necessarily reflects a commonly held view or that it does not constitute a hate message within the meaning of s. 13.

[61] Mr. Warman believes that the poem does, in fact, constitute a hate message. He claims that it bears some of the hallmarks of hate messages identified in the body of s. 13 jurisprudence over the years (see Warman v. Kouba, 2006 CHRT 50 ("Kouba"), at paras. 22-81, for a summary of these hallmarks). In particular, Mr. Warman contends that the poem treats immigrants as a powerful menace that will deprive white Canadians of their livelihood. This hallmark, however, is derived from decisions like Citron. The respondent in that case was found to have expounded theories of secret conspiracies by Jews designed to extort money and tremendous power and control on a global scale. The Tribunal found that the tone and extreme denigration and vilification of Jews found in the documents in evidence separated that material from material that might be permissible under the Act. I do not find a similar tone or an extreme denigration of person(s) to be present in the poem that was posted by Mr. Lemire on Stormfront.org.

[62] Mr. Warman submits that the poem also bears the hallmark of "highly inflammatory and derogatory language", which creates a tone of extreme hatred or contempt (Kouba at para. 67). He points to words such as "trash" and "breeding", as well as "dummies" (although that term appears to be ascribed to "white Canadians"). He also points to the suggestion in the poem that non-white immigrants defraud the welfare system and that they cannot speak English properly. These expressions are certainly provocative, as well as insulting, but they do not come close to the sort of extreme language that has been identified in s. 13 jurisprudence as being likely to expose persons to hatred or contempt. The poem does not contain any of the ugly racial and ethnic epithets that have so often been present in the material adduced in other s. 13 cases.

56.  The “Immigrant Poem” does not expose any group to hatred. It is a biting and satirical commentary on how immigrants are treated in Canada at the expense of the Canadian taxpayer. It constitutes core political commentary regarding Canadian immigration policies. While the poem refers to Pakistan, there is no indication that the speaker is Pakistani. The poem speaks of “Canadian dummy” and “Canadian crazy” and “too damn good for the white man race.” No such references appear regarding the ethnic groups listed in the complaint. The poem is a commentary on the alleged stupidity of Canadians regarding its immigration and welfare policies. Criticism of immigration policies, are not covered by the CHRA.

57.  The poem does not expose any groups to hatred and/or contempt. The Taylor decision requires that messages be “intended or likely to circulate extreme feelings of opprobrium and enmity against a racial or religious group".  This poem does not circulate extreme feelings of opprobrium or enmity against any protected group under the Act.

58.  It is telling that Rizk testified that she included the poem in her report simply to show what Warman had given her.

59.  Bernard Klatt produced the searches for the “Immigrant Poem” he did on Google which were filed at Exhibit R-2, Tab 22; Vol. 8, p. 1585-1590] As of December, 2006, The “immigrant poem” was available on at least 397 websites.  Those websites included:  Phade.Ca, VivelaCanada.ca, Free Dominion, Camera Country F-Body Group, DodgeDakotas.com, CompuServe.com and Warp Reality.  (Exhibit R-2, Tab 22, Pages 1-4)

60.  Specific printouts of the “Immigrant Poem” were included from the websites “Discover Vancouver” and  “Country Living, Country Skills”  (Exhibit R-2, Tab 22, Pages 5-13) Many Canadians obviously find the poem expresses something about Canada’s immigration policies that they agree with.  Immigration is determined by the policy of Canada’s elected governments in a democratic system. These policies are subject to criticism. The inclusion of this poem in the complaint shows the slippery slope to totalitarianism.

61.  It is submitted that the immigrant poem has not been proven to be posted by the respondent on a balance of probabilities. Moreover, the poem could not be found by anyone other than the complainant on the day it was allegedly posted. There is no evidence it was accessed by anyone other than two alleged posters and the complainant. There was no likelihood it would expose anyone to hatred. Lastly, the poem does not meet the test set out in Taylor for “hatred and contempt.” This test sets a very high bar which this poem does not meet.

Canadian Human Rights Commission Letter 

- November 8, 2006

Written by English-language word guru - Giacomo Vigna

 7. The titles in themself of the literature announced in the website, it is respectfully submitted, indicate prima facie, that the literature announced and found can be considered to be a violation of section 13. Here are a series of but some examples from the said website: {SIC)

See schedule "A" annexed hereto

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 Bernard Klatt , the Internet expert called by the respondent.

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 Canada ’s “Hate Capital.”  B’nai Brith’s lawyers contacted B.C. Telecom in an attempt to pressure it to disconnect Klatt’s service. Newspapers portrayed Klatt as being an enabler of white supremacists and the SWC subsequently attempted to have him charged criminally under s. 319 of the Criminal Code.

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 Canada which had a policy supporting common carriage requirements for all network providers. [Facts, p. 178-182]

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 Canada and over which they have no jurisdiction. Letters written to foreign websites and ISPs asked to take “appropriate” action. [Facts, p. 116-117]

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 United States .

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 Canada and abide by them as good corporate citizens. [Facts, p. 117]

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 Taylor .  Goldberg testified the ISPs all had the resources to hire legal counsel should they need assistance in knowing what constituted hate on their services. [Facts, p. 121] When a small ISP was held liable in the Kulbashian case, a member of CAIP expressed relief to Goldberg when he informed them by email that this was limited exception to section 13 because the ISP was not acting simply as a common carrier but had involved itself in the discriminatory practices. [Facts, p. 122]

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 Bell took no action, Warman took the matter to the media. Bell quickly removed Winnicki’s material as a result. Another complaint to Bell Sympatico about a website in British Columbia resulted in the rapid shutdown of another website. [Facts, p. 85]

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 Canada , be deemed sufficiently problematic to be referred to tribunal. Such a determination could then be passed to Canadian Internet Service Providers who would then block access.”  

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.

These are excerpts from my closing arguments at the Canadian Human Rights Tribunal.

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 London police. . [Facts, p. 167, 172]

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.

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 Edmonton police officer. Estate was a prolific and vicious poster.. [Facts, p. 79] Steacy didn’t know how or if other investigators used the “Jadewarr” account. [Facts, p. 166]

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 Beaumont case when a posting from Stormfront was printed off by Steacy using the “Jadewarr” account and was inadvertently disclosed to Beaumont .  The CHRC forced Lemire to go to judicial review at the Federal Court to obtain the answers to the questions about who “Jadewarr” was. It has followed a policy of deception with the tribunals in section 13 cases which is appalling in its implications. Respondents were denied disclosure of the case against them and the CHRTs were misled about material facts.

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]

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 Richardson ’s hard drive was given to Warman as part of the CHRC’s disclosure obligations and he testified in the Kulbashian case that he studied it extensively. [Facts, p. 167] Steacy testified he had gone to police officers and requested information about dozen times and had given police information for their purposes about twice. [Facts, 171]

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.