152 Carlton Street
PO Box 92545
Marc Lemire's Defence
before the Canadian Human Rights Tribunal
Statement of Particulars for Respondent - Marc Lemire
1. On March 25, 2004, Mr. Lemire received a letter from the Canadian Human Rights Commission informing him that it had received a complaint from Richard Warman alleging that the website www.freedomsite.org including http://chat.freedomsite.org were discriminating against persons or groups of persons because of religion and national or ethnic origin by repeatedly communicating messages through Internet websites that would likely expose Italians, Mexicans, Puerto Ricans, Haitians, francophones, blacks, First Nations persons, East Asians, non-whites and Jews to hatred and/or contempt contrary to section 13(1) of the Canadian Human Rights Act.
2. Attached to the letter was a Complaint Summary dated November 24, 2003 with File Number 20031961. The date of the alleged conduct was September 24, 1999 and ongoing.
3. The particulars of the alleged conduct stated that Richard Warman had visited the Freedomsite website message board on November 11, 15, and 23, 2003 and found jokes and other entries which he alleged were discriminatory. The complaint alleged that "material contained in other sections on the message board is replete with further bigoted commentary." Further particulars from the message board were set out.
4. Only one message from Freedomsite.org, the website, was included in the complaint. This was an article by Kevin Strom entitled "AIDS Secrets: What the Government and the Media Don't Want You to Know."
5. The complaint alleged that Marc Lemire was responsible for the chat room because he was the webmaster of the website hosting the message board. Mr. Warman also alleged that Mr. Lemire was responsible for posting the article "AIDS Secrets" to the Freedomsite itself and of posting an article by Ian MacDonald to the message board.
6. No writings by Marc Lemire himself were alleged to be discriminatory.
7. The respondent Marc Lemire, is the owner and webmaster of the Internet website, Freedomsite.org.
8. The message board formerly available at http://chat.freedomsite.org was permanently removed by Mr. Lemire on January 1, 2004, prior to receiving any notice of the complaint.
9. After receiving notification of the complaint, Mr. Lemire voluntarily removed the only message complained of which was still on the website, that of "AIDS Secrets." He did so in the interests of settling the complaint.
10. The Freedomsite.org is a website devoted primarily to the discussion of the immigration policies of Canada and the restrictions of speech in Canada. There is extensive coverage of the case of Ernst Zundel, including commentaries and photographs of demonstrations held in support of Mr. Zundel which did not appear in the mainstream Canadian media. The website is a major alternative source for news and commentary for Canadians. It has been in operation since 1995 and has received over 10 million visits in that time.
11. The complaint by Mr. Warman was the first complaint received by Mr. Lemire concerning the site since its inception.
12. Mr. Warman did not contact or complain to Mr. Lemire prior to laying his complaint with the Commission.
13. The message board of the Freedomsite was not accessible to the public generally. To participate and to read messages, a person had to fill out a form to create a "new user profile." This required a login name, first name, last name and email address. Optional information to be provided was city, province, and home page. The board required email address verification, meaning that a password to the message board was sent to the email address specified. The password was required to gain access to the board.
14. Once registered with the message board, the user was instructed on how to use it and how to change password or user settings.
15. The rules for use of the message board were: "Keep discussion civil. Post only to appropriate conferences. DO NOT advocate or suggest any activity which is illegal under Canadian law."
16. The conferences available on the message board included Freedom-Site and ZGram mailing lists, Canadian Heritage Alliance, Movement Activists Chat, News, General Messages, Heritage Front, Immigration, Free Speech, History and Historical Revisionism, Religion, Enemies of Freedom, Jokes and trivia, Media Propaganda, Music and Singles-Companionship.
17. All of the matters initially complained about, with the exception of the "AIDS Secret" document, were messages posted on the "Jokes and Trivia" conference on the message board. The vast majority of these were written by a man named "Craig Harrison" according to Mr. Warman.
18. Mr. Lemire does not know Mr. Harrison, and has never met him or spoken with him. He is not sure if "Craig Harrison" is a real name.
19. Mr. Lemire did not monitor the message board regularly. There was an option to complain about posts on the message board but he did not receive any complaints. Mr. Lemire himself posted messages only infrequently.
20. Mr. Lemire relied strongly on the message board complaint option to receive complaints from readers such as Mr. Warman about offensive or possibly illegal postings.
21. When Mr. Lemire received the Warman complaint in March of 2004, every message which had been complained about, except one, had already been removed from the site months before.
22. After receiving the complaint, the solicitor for Mr. Lemire, Barbara Kulaszka, wrote the Commission on April 23, 2004 indicating that the message board had been removed permanently as of January 1, 2004 and that Mr. Lemire had voluntarily removed the one remaining article, "AIDS Secrets", in the interests of settling the complaint. She indicated that Mr. Lemire was undertaking not to post the article on the website in the future.. In the letter, Ms. Kulaszka stated that a settlement might therefore be reached between the parties, given that all matters complained of were no longer on the website. She reserved the right to make further submissions should a settlement not be reached, particularly with respect to sections 13, 41 and 47 of the Canadian Human Rights Act.
23. There was no reply from the Commission or from Mr. Warman.
24. In July of 2004, Mr. Lemire learned that details of the complaint against him had been posted on http://www.rabble.ca in a document entitled "Call to Action Against Holocaust Denier Ernst Zundel and the White Supremacist Canadian Far-Right" posted by the violent group, Anti-Racist Action (ARA). Mr. Lemire had kept the complaint strictly confidential. Ms. Kulaszka wrote to the Commission on July 30, 2004 that only Mr. Warman could have revealed the complaint to the ARA. She submitted the complaint should be dismissed due to the bad faith of Mr. Warman in disclosing the complaint to a group dedicated to violence as a means of silencing its political opponents.
25. There was no reply from the Commission or Mr. Warman.
26. More than a year after receiving the initial notification of the complaint, the Commission informed Mr. Lemire in a letter dated April 15, 2005 that it had completed its investigation into the complaints filed by Mr. Warman. It included a copy of the investigation reports. Mr. Lemire was informed that the complaints would be submitted to the Commission but that he could provide further submissions prior to May 17, 2005.
27. On April 21, 2005 the solicitor for Mr. Lemire, Barbara Kulaszka spoke with Ms. Hannya Rizk of the Commission regarding the case. Ms. Kulaszka indicated that Mr. Lemire wished to settle the matter and to enter into negotiations. She was told to put the request in writing and the Commission would contact Mr. Warman to get his position. Repeatedly during the conversation, Ms. Rizk stated that the matter would be going to the Commission.
28. By letter dated April 25, 2005, Ms. Kulaszka requested that settlement negotiations take place between the parties. She expressed concern about Ms. Rizk's apparent knowledge that there would be no settlement and no conciliation proceedings. She pointed out that the Investigator's Report recommending that the matter proceed to Tribunal contained new material submitted by Mr. Warman which had never been revealed to Mr. Lemire. This included material from another website, www.jrbooksonline.com. Further, the investigator herself had found new material which likewise had never been revealed to Mr. Lemire. Ms. Kulaszka proposed a procedure whereby she would make a motion to the Commission under section 47 of the Act for the appointment of a conciliator in the event Mr. Warman did not wish to settle.
29. By letter dated May 8, 2004, Mr. Warman refused any negotiations to settle, alleging Mr. Lemire had dirty hands since jrbooksonline.com continued to be online. This letter was forwarded to Ms. Kulaszka by the Commission by letter dated May 13, 2005.
30. Mr. Lemire does not own or operate jrbooksonline.com and has no responsibility for the content on the website.
31. By letter dated June 3, 2005, Ms. Kulaszka provided proof that Mr. Lemire was not the owner of jrbooksonline.com. She reiterated that Mr. Lemire wished to continue the settlement discussion. In the event Mr. Warman continued to refuse to negotiate, Ms. Kulaszka requested that the Commission send the matter to conciliation pursuant to section 47 of the Act.
32. By letter dated August 19, 2005, the Commission informed Mr. Lemire that the Commission had decided pursuant to paragraph 44(3)(a) of the Canadian Human Rights Act to request the Canadian Human Rights Tribunal to institute an inquiry into the complaints because the evidence supported that Mr. Lemire was the owner and/or was causing to be communicated the material identified on the websites and the evidence supported the allegations that the material contained on the websites, when viewed as a whole, were discriminatory.
33. On September 23, 2005, Mr. Lemire agreed to mediation of the complaint. Mr. Warman refused mediation.
34. The messages complained of, to the extent that they have been disclosed by the complainant, do not incite hatred of the named groups.
35. Mr. Lemire cooperated fully with the Commission and repeatedly offered to enter into negotiations with Mr. Warman to settle the case, to enter into conciliation proceedings and mediation. Mr. Warman ignored all such attempts at settlement and refused mediation before the Tribunal.
36. The messages complained of are coarse ethnic jokes, which could be heard on any day of the week in Canada in private conversations, in emails and websites on the Internet. They are trivia, the equivalent of jokes scrawled on washroom walls in bars. They were not available to the public but to persons who voluntarily registered on the site and accessed the "Jokes and Trivia" conference. Extremely small numbers of people read the messages. The message board did not attract persons likely to be exposed to hatred by the jokes. No complaints were ever made to Mr. Lemire concerning the messages. Mr. Warman made no complaint to him prior to filing the complaint.
37. The ethnic jokes are a crude form of humour which does not expose any group to hatred. All ethnic groups in evert society are subject to this type of humour. It is one of the oldest forms of humour and will never be suppressed by human rights commissions. It is part of the human condition.
38. Ethnic jokes are found on the Internet in the hundreds of thousands if not millions. They cover Jewish jokes, Polish jokes, black jokes, English jokes, newfie jokes, Asian jokes and so on. By far the largest number of jokes is with respect to "blonde jokes", which are jokes about white women.
39. The largest number of jokes, however, is in respect of "lawyer jokes." Some of the jokes complained of herein are variations of well-known lawyer jokes.
40. Questioning facts of the events of World War II concerning what happened to the Jews of Europe does not constitute hate and does not expose them to hatred.
41. The cartoon included on page 6 of the Investigator's Report does not constitute hated against Jews. It refers to Zionism which is a political belief and movement. It is not a religion or ethnicity protected by s. 13 of the CHRA.
42. 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 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 biting references appear regarding the ethnic groups listed in the complaint. The poem is a commentary on the alleged stupidity of Canadians regarding immigration.
43. The complainant has provided no proof that the respondent posted the poem or even that it appeared on Stormfront. The poem, however, appears on hundreds of websites around the world and in Canada.
44. "AIDS Secrets" is a discussion alleging that AIDS is predominantly found in homosexuals, drug users, and blacks. The author relied on public source documents such as the American Journal of Public Health. This is not hate propaganda but a serious discussion of public health issues which affect different groups differently. Race and sexual practices impact differently on different health issues. The tainted blood scandal in Canada is proof that there must be open and free discussion of health issues even if homosexuals or any other sexual orientation group are offended. Nevertheless, the respondent removed the article in the interests of settling the complaint.
45. A message board on the Internet is a unique form of communication which allows anyone in the world to freely add a comment on the issue or issues being discussed or to begin a new discussion on another issue. It allows free comment, free argument and back and forth arguments and discussions on matters of every sort.
46. Mr. Lemire suffered physical attacks and damage to personal property after the complaint was initiated. He did not publicize the complaint. Yet a violent group, Anti-Racist Action (ARA), learned of the complaint and posted details on the Internet. Mr. Warman denied giving the information to the ARA.
47. Mr. Warman was a keynote speaker before the ARA in August of 2005.
48. The Commission endorsed the ARA in a poster distributed by it in 1995 but was forced to retract it after receiving complaints.
49. The ARA has a long history of violent actions against those it deems hate-mongers, racists and fascists.
50. Mr. Warman is a former employee of the Commission and has filed numerous complaints under section 13 against individuals and/or groups in Canada. He is a prominent member of the Green Party of Canada, having run in several elections as a candidate both federally and provincially.
51. Mr. Warman participates on a regular basis on message boards of such websites as Stormfront.org, entering messages and repeating messages which are sympathetic to the causes of those who also frequent the sites.
52. Mr. Warman communicates with ISP's hosting websites which he dislikes to urge them to stop hosting the sites or remove them. He has been involved in attempting to stop meetings, radio programs, book signings and TV appearances of such people as David Icke and tax dissidents. He has instituted several defamation lawsuits against various persons and/or groups relating to such activities. Attempts to charge Mr. Warman criminally have failed. He instigated an incident of pie throwing against David Icke in Vancouver in a book store by his associates, resulting in damage to store inventory and hitting Mr. Icke in the arm.
53. In September of 2003, several messages were posted on freedomsite.org written by Paul Fromm, Director of the Canadian Association for Free Expression, which set out the activities of Mr. Warman in laying a complaint against a London man named T. Winnicki and Bell Canada and his libel action against a group called Northern Alliance. These messages and the others detailed in the paragraphs following also were sent out on the Freedomsite mailing list, of which Mr. Warman was a subscriber.
54. In October of 2003, a message was posted on freedomsite.org announcing a protest which was being organized by the Canadian Association of Free Expression against the government funding of "Censorship Advocates", including Mr. Warman, in Victoria, British Columbia. A second message was posted on October 28, 2003 giving an account of the protest in front of the synagogue where Mr. Warman and Mr. Adler of the Simon Wiesenthal Centre spoke about the Internet.
55. On October 29, 2003, a message was posted on freedomsite.org which announced that CAFÉ would be holding a protest of the actions of the Canadian Human Rights Commission, including one of its employees, Richard Warman, in suppressing free speech on the Internet.
56. On October 31, 2003, a message was posted on freedomsite.org which provided a summary of a press conference given in the Parliamentary Press Gallery in Ottawa by Paul Fromm regarding the what it termed the "extensive campaign of harassment against dissident websites by the Canadian Human Rights Commission and by one of its lawyers, Richard Warman..." Two men, Tom Kennedy and Jason Oewendyk, appeared with Mr. Fromm at the press conference and were described in the summary as "victims of Richard Warman." The message outlined various activities of Mr. Warman in attempting to shut down meetings and websites.
57. On Nov. 2, 2003, a message was posted on freedomsite.org entitled "Warman on the Warpath - Threatens CAFÉ" which stated that Richard Warman had served Paul Fromm and CAFÉ with a Notice under the Libel and Slander Act of Ontario alleging that words defamatory of Mr. Warman had been posted on the freedomsite.org. The notice demanded that a retraction be published on the freedomsite.org and on the freedomsite email announcement list.
58. On Nov. 2, 2003, a message was posted on the freedomsite.org which was the text of the CAFÉ press conference in Ottawa in the Parliamentary Press Gallery on Internet censorship.
59. On Nov. 12, 2003, a message was posted on freedomsite.org entitled "CAFÉ complaint against CHRC lawyer Richard Warman." The message set out a letter which Paul Fromm, director of CAFÉ, had sent to Chief Commissioner Mary Gusella by fax on Nov. 11, 2003 in which Mr. Fromm lodged a formal complaint against Mr. Warman who worked as a lawyer for the Commission. The complaint alleged that Mr. Warman was "using his position at the Commission to carry on an ideological vendetta against people whose views he disagrees with..." Mr. Fromm listed Mr. Warman's recent activities and demanded an investigation of his behaviour which he stated harmed the integrity of the Commission.
60. On Nov. 11, 2003, the same day Mr. Fromm faxed his letter of complaint to the Commission, Mr. Warman visited the Freedomsite website message board, looking for and finding messages which he would include in the present complaint. He returned to the site on November 15 and 23, 2003 to find further matters to include in the complaint. He filed the within complaint on November 24, 2003.
61. The herein complaint was filed by Mr. Warman with the intention of shutting down a website that was active in publishing messages outlining his activities, protests against those activities and complaints laid against him with the Commission. Freedomsite.org is one of the very few websites which publishes criticism of the Commission and the activities of Mr. Warman to the public.
62. The Commission did not follow the normal procedure used in screening complaints in handling this complaint. For instance, Mr. Warman was not required to contact Mr. Lemire in order to see if the matter could be settled privately.
63. The Commission itself had an interest in shutting down a website active in criticizing one of its lawyer's activities and which was leading to controversy about the Commission and its activities under section 13. On the day Mr. Fromm's complaint was lodged with the Commission, Mr. Warman began his search for messages to complain about.
64. On Jan. 2, 2004, a message was posted on freedomsite.org entitled "Complaint Against Warman filed with Law Society." The message was the text of a complaint filed by Mr. Gordon Watson concerning Mr. Warman's activities in stopping meetings of the Tax Honesty Movement on the grounds of anti-Semitism.
65. On March 18, 2004, a message was posted on freedomsite.org announcing that Mr. Warman had sued Paul Fromm and CAFÉ and setting out a copy of the Statement of Claim.
66. On March 25, 2004, the respondent Mr. Lemire received notice of the complaint of Mr. Warman.
67. The complainant, the Commission and others involved in the banning of information seek to use extra-judicial means such as approaching phone companies and internet access providers to pressure them to deny the targeted individual or organization a platform from which to publish.
68. Allegations alone that a person or group is inciting hatred is enough often to have the group or individual's website pulled by an ISP.
69. Only certain views are deemed by the Commission to be hate, almost exclusively what is roughly termed "right wing" or "nationalist." These are individuals or groups which are against Third World immigration, or do not believe that six million Jews died during World War II, and oppose multiculturalism or homosexuality.
70. Although "rap" music is a viciously anti-female form of hate propaganda and has been freely available in Canada for years, the Commission and Mr. Warman have made no move against this music, a multi-billion dollar business.
71. The Commission works with only those organizations which further its own agenda, such as the Canadian Jewish Congress, the League for Human Rights of B'nai Brith and the Simon Wiesenthal Centre. It has not worked with German ethnic groups and has never considered that the Holocaust allegation itself might be hate propaganda against Germans.
72. Beginning in 1995, the Commission deemed "Holocaust denial" hate propaganda with no investigation and no consultation with German groups.
73. The Commission's deeming of what is hate and what is not hate is not based on any type of scientific evidence or investigation or even sociological evidence or investigation. It is a totally political decision and determination.
74. The Commission is using its screening process of complaints to stop any complaints against individuals or groups which it does not want targeted by the legislation.
75. The Commission itself states that the complaint process is only "one part" of what it terms "the broader fight against hate motivated activity" in Canada. It works with ISP's, NGO's, the police and government departments in extra-judicial ways to stop the viewpoints which it deems to be hate. It is empowered by its legislation to undertake this destruction of free speech behind closed doors in private meetings and with favoured groups and organizations.
76. It has attempted to shut down the Zundelsite in the United States by pressuring the ISP's hosting the site, even though it has no jurisdiction in the United States.
77. Internet Service Providers are businessmen, not free speech advocates. They are beholden to federal regulatory agencies and will not stand up for any right to free speech or access to the Internet. The Canadian Association of Internet Providers has accepted special recognition for it's activism in "combating online hate and terror" from the Simon Wiesenthal Centre. This is "hate" as defined by the Simon Wiesenthal Centre, not any judicial determination before a court or tribunal.
78. Hate laws and their enforcers regard words as a "serious threat". The Commission speaks in terms of "fighting", of "combating" in which the fighters must show "solidarity." It is the language of war, of enemies, of fear and hysteria and a belief that laws of coercion will change hearts. Such laws do not fulfill the purpose for which they are allegedly intended. They do fulfill the purpose of silencing political opposition and commentary.
79. Hate laws are the end of dialogue, a repudiation of communication, the exchange of ideas and the responsibility to try to understand the other, which is the basis of democracy. Such laws only instill fear, anger and hatred through their coercive measures.
80. Hate is totally subjective as it is an emotion. It cannot be controlled through law.
81. Only certain ideas are being defined as "hate", not others. Who has the power to define will have the power to silence and suppress using these laws.
82. A website is not a "hate message" within the meaning of section 13. A complainant is required to produce the message alleged to be a hate message and only that message, if deemed contrary to the section, can be banned. The Commission is attempting through these complaints to shut down entire websites and any discussion of issues it wants silenced.
83. Section 13 of the CHRA is unconstitutional for the reasons set out in the Notice of Motion filed on December 6, 2005. The particulars of the argument are set forth therein and are incorporated herein by reference.
84. The case raises several issues:
85. The respondent requests that the complaint be dismissed on the grounds that:
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