Free Speech Monitor, Number 203. December, 2012
A Bitter Grudging Partial Victory in Lemire Case
In a long awaited decision in the Marc Lemire Internet case, Mr. Justice Richard Mosley delivered his long awaited judgement, October 2, 2012. Judge Mosley should never have been seized with this case. He should have recused himself on the basis of a reasonable apprehension of bias. As a lawyer for the Department of Justice, he was the point man shepherding through amendments to various pieces of legislation, including Sec. 13 of the Canadian Human Rights Act, which was now worded to specifically hand over control of the Internet to the Human Rights Commission thought police. He strongly assured MPs that this legislation was constitutional. Now, wearing his since acquired judge’s robes, he’s being asked to rule that his baby is unconstitutional. Potential bias? Potential conflict? You bet.
Hamilton webmaster (The Freedomsite) Marc Lemire was one of Richard Warman’s most prominent victims. He was hit with a complaint by Richard Warman in 2003 for postings on the
Then, began a six year legal battle. Mr. Lemire not only fought the complaint on the merits but also challenged the constitutionality of Sec. 13. He was joined by the Canadian Association for Free Expression and Doug Christie’s Canadian Free Speech League.
Impressive evidence was introduced and witnesses led. The dirty tricks, or at least some of them, of Richard Warman and the Canadian Human Rights Commission were exposed. We learned that the chief investigator or Internet “hate” a blind man named Dean Steacy put no weight on freedom of speech investigations as “free speech is an American concept.” The very science on which Sec. 13 was based was challenged. The sorry history of Sec. 13 — a 100% conviction rate — was exposed.
On September 2, 2009, in a landmark decision Athanasios Hadjis essentially ruled Sec. 13 unconstitutional, albeit on annoyingly narrow grounds. In 1990, by a narrow 4-3 margin, the Supreme Court of Canada narrowly upheld the constitutionality of Sec. 13 on the basis that, while it did restrict free speech, it was essentially remedial, not punitive. However, in 1998, a range of fines and financial penalties was introduced. On this basis, Mr. Hadjis acquitted Mr. Lemire on all but one charge — an article about Negroes and AIDS — refused to apply a penalty and essentially declared Sec. 13 to be unconstitutional as it was no longer “remedial.”
We’d have liked to have seen it thrown out on more substantial grounds, Still, a victory is a victory. Within a month the Canadian Human Rights Commission sought judicial review (appeal) its humiliating defeat. After two years of legal jockeying and tens of thousands of dollars spent by those promoting free speech, the appeal was heard in Federal Court, December 13, 2011 by Judge Mosley. On June 4, well before he rendered his decision, the House of Commons repealed Sec. 13. One might think the judge would simply deliver the coup de grace and put this totalitarian piece of repression out of its misery.
However, Judge Mosley saved his hobby horse. He maintained in the fact of all evidence that Sec. 13 was constitutional and an acceptable denial of free speech. However, the financial penalties are unconstitutional. Marc Lemire is to be sent back to the Tribunal for sentencing. And to add insult to injury, chronic complainer Richard Warman who chose to make this mischief is to be paid for writing his legal brief and for attending the appeal.
THIS COURT’S JUDGMENT is that:
1. The application for judicial review is granted and the matter is remitted to the Tribunal to;
a.issue a declaration that the publication of the article “AIDS Secrets” by the respondent Marc Lemire constituted a breach of s 13 of the Canadian Human Rights Act ; and
b. for determination of whether a remedy for the breach is to be imposed under ss 13 and 54(1)(a) and (b) of the Act;
2. It is declared that ss 54 (1) (c) and 54 (1.1) of the Canadian Human Rights Act are of no force or effect pursuant to s 52 (1) of The Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982, c. 11,1982;
3. The respondent Richard Warman is awarded costs for the preparation of his record and his out of pocket disbursements for attendance at the hearing against the respondent Marc Lemire.
The decision is rife with errors. Here are just a few.
One of the key arguments advanced by Mr. Lemire and especially promoted by CAFE was that the justification for Sec. 13 (and, indeed, for upholding the “hate law”, Sec. 319 of the Criminal Code) that the Supreme Court bought in 1990 was based on bad science. Frankly, it was “theoretical” nonsense back then, but neuropsychology has made huge inroads and shown us how the human brain reacts. the science they accepted in 1990 is now junk. This is how it goes: the Canadian Charter of Rights and Freedoms is a smoke and mirror job of Indian giving. We are promised all these rights — free speech, freedom of belief, etc. Then, comes the weasel clause, “subject only to such restrictions as are demonstrably justified in a free and democratic society.” Thus, if Parliament or a provincial legislature has a good goal in mind and, to achieve the goal restricts your rights, that’s alright as long as the restrictions accomplish the goal and are not excessive. In the case of Sec. 13, the Supreme Court accepted that “hate speech” had a bad effect on society. This was all based on a 1965 report by an obscure University of Toronto psychology professor Harry Kaufmann. He argued that minorities were made fearful by “hate speech”, that they tended not to want to be themselves and that they withdrew from society and, at the extreme end, abused drugs or alcohol. This being so, Parliament, the Court held, was right to suppress “hate speech.” Common sense and every day observation tell us that that’s not the way groups respond when they are criticized, even extravagantly. Professor Michael Persinger, led as an expert witness at the Lemire tribunal, sank the scientific ship holding afloat the Supreme Court’s justification of repression. Persinger testified that Kaufmann was wrong. On being confronted with “aversive language” (“hate speech” is a loaded term, Persinger testified), minorities either scoff at the comments and reject them or become angry and want to argue or refute them. Neither reaction is a harm to society. In fact, both are positive. So, in fact, beyond a few wounded feelings “hate speech” causes no harm to society. There goes any justification for Sec. 13 This was a key argument.
At paragraph 78, Judge Mosley states: “Most of the interested parties agree that the objectives of s 13, the suppression of hate speech and the promotion of equality, are pressing and substantial. Only Mr. Lemire and the CFSL appear to take issue with that proposition. Neither, in my view, have [sic] submitted any valid argument as to why the objective of s 13 is not pressing and substantial and why this Court should depart from Taylor on that point.” Well, actually the Canadian Association for Free Expression forcefully challenged the objectives of Sec. 13 in suppressing “hate speech.” One wonders in despair whether Judge Mosley even read our submissions or heard our lawyer’s summation.
The learned judge continued: “Lemire further questions the legitimacy of the finding in Taylor, that hate speech can cause substantial psychological stress, arguing that the Supreme Court relied not on expert evidence, such as he presented to the Tribunal, but on extrinsic research, to reach that conclusion. (para 80) The judge will not let his legal baby go: “Notwithstanding the recent legislative effort to repeal s 13, I have no difficulty concluding that the objective of the enactment continues to be substantial and pressing.” (para 87) Nonsense. So, as he sees it, Parliament was wrong.
Finally, Judge Mosley all but admits that the purpose of Sec. 13 is not to suppress “hate speech” but to silence a particular political ideology: “Apart from the technology, there is little to choose between Taylor’s callers and like-minded individuals looking for confirmation of their views on a white supremacist web site. And the suggestion that they are open to countervailing views cannot be taken seriously. “(para 94) The judge rejects evidence from several witnesses that the Internet is far more interactive and functions very differently from a telephone answering machine.
So, should this judgement stand, Marc Lemire would be assessed a penalty, likely a “cease and desist order”, a lifetime gag, despite the fact that the law has been repealed by the House of Commons! To add insult to injury, he’d have to pay tormentor Richard Warman for Warman’s costs in preparing his submission and his costs in travelling to the hearing from Ottawa. Warman has an uncanny way of persecuting people and still getting paid to do so. Finally, Sec. 13, until its repeal is passed by the Senate, could, theoretically be used to persecute others with the temerity to criticize privileged minorities on the Internet. Yes, on the good side, the financial penalties are gone. The Mosley decision MUST be appealed.
On October 30, Marc Lemire filed “Notice of Appeal.” On November 12, the Canadian Association for Free Expression filed notice that it wished to support Marc as an intervener in the appeal.
Canadian Dissident Jailed for One Month Definite, 6 More Months If He Doesn’t Remove Postings
Don’t let them tell you Canada is a free country. Next time some earnest do gooder reminds you of the fate of dissidents in Red China or Burma or Cuba, be sympathetic but remind him or her that Canada has no reason to be self-righteous. Our courts are quite happy to jail dissidents and gag opinion on the Internet, especially where the dissident has criticized powerful privileged groups. In China, if you criticize the powerful Communist Party, they send your impertinent butt to jail. In Canada, if you criticize privileged minorities, as has scholar and dissident Terry Tremaine, they fling your dissident self in prison.
What’s the difference?
Terry Tremaine, a scholar and blogger, is headed to prison for a month. Should he not remove dozens of postings or his website and request STORMFRONT.ORG to remove dozens more, he’ll spend a further six months in jail. To add insult to injury, just as in Red China at the height of the madness of the cultural Revolution, where “counter-revolutionaries” were send a bill for the bullet to execute them, Terry Tremaine, who is penniless, must pay the Commission’s costs for this sentencing hearing and the disbursements of chronic complainant Richard Warman who chose to participate. Terry Tremaine instructed his lawyer to appeal this sentence. To all the naive folks listening to those TV ads about the 30th Anniversary of the Charter: Do you still think your rights are protected? Not if you cross politically powerful and privileged minorities.
Free Speech Monitor, Number 203. December, 2012
Now, the Thought Police Are After Ezra Levant for Criticisms of Gypsies
“Hate laws” exist to shield privileged groups from criticism and to shut down or stifle debate on key topics, like immigration. Back in the 1930s, the Canadian Jewish Congress began lobbying mightily for “hate” laws. Finally, in 1970, thanks to socialist Pierre Trudeau, they succeeded and we got Canada’s notorious “hate law” — Sec. 319 of the Criminal Code. The latest potential victim is Ezra Levant, himself Jewish but no admirer of the Canadian Jewish Congress. Levant is a lawyer, writer and news commentator on Sun News television.
The delightful thing about “hate laws” is that a privileged minority can holler “hate” and now their critic becomes the object of attack. It’s an old sleazy lawyer’s trick: accuse the accuser. The neat thing is, by whooping up this noise about “hate”. the privilege group avoids having to answer or refute the criticism or deal with unflattering facts because the mere mention of these facts is “hate.” The Toronto Star (October 24, 2012) reported:” A complaint about broadcaster Ezra Levant’s rant that likened Gypsies to ‘swindlers’ has prompted a Toronto police investigation. Toronto’s Roma Community Centre, which has called the rant overtly racist, prejudicial, and demeaning,’ lodged the complaint with police on Oct. 11. Const. Wendy Drummond confirmed Toronto police had received the complaint and were investigating the comments aired on Levant’s Sun News show, The Source, on Sept. 5.
An Oct. 15 statement from Roma Community Centre executive director Gina Csányi-Robah described Levant’s comments as “nearly nine minutes of on-air racist hate-speech targeting our community.” Early in Levant’s segment, “The Jew vs. the Gypsies,” he likened Gypsies with ‘swindlers,’ and said ‘too many have come here as false refugees.’ Levant attempted to qualify his comments by saying politically correct terms are being used to obscure the truth. Csányi-Robah said called the comments “one of the longest and most sustained on-air broadcasts of hate-speech against any community in Canada that we’ve witnessed since our organization was established in 1997.”
Levant argued: “‘These are gypsies,’ he tells us, ‘a culture synonymous with swindlers. The phrase gypsy and cheater have been so interchangeable historically that the word has entered the English language as a verb: he gypped me. Well the gypsies have gypped us. Too many have come here as false refugees. And they come here to gyp us again and rob us blind as they have done in Europe for centuries. . . They’re gypsies. And one of the central characteristics of that culture is that their chief economy is theft and begging.” (Toronto Star, September 15, 2012)
Forget all the fog about “hate”: the only relevant question is whether what Levant said was true. Do Gypsy “refugees” — not all, of course — commit many crimes, especially theft and shoplifting? Even though our press tends to downplay immigrant crimes, or, as in a recent television news story about Gypsy gangs descending on stores to shoplift that identified the bizarrely dressed perpetrators as dressed in Eastern European costumes, there have been many reports of considerable criminality among the Gypsy “refugee” claimants, many who seem to hit the ground thieving not long after they land. Even Bernie Farber former CEO of the Canadian Jewish Congress, in a feverish denunciation of Ezra Levant, reluctantly admitted: “There will always be those who claim the Roma engage in lawlessness and crime. And in Europe, statistics do demonstrate a significant increase in theft by those living in Roma encampments. These numbers have been used by French authorities to justify large scale deportations of Roma.|” (National Post, September 25, 2012)
“The Canadian Border Services Agency is asleep at the wheel allowing more than 400 alleged Roma gypsies – many of whom have extensive criminal records – into the country and specifically the GTA, critics say.This week, the Durham Regional Police Service confirmed they had arrested 34 people and laid 263 charges in the largest investigation of its kind in the region,” CNEWS reported (September 8, 2012) “Former Conservative MPP Toni Skarica, an Ontario Crown Attorney who, speaking at a parliamentary committee, said Roma refugees from Hungary come to Canada because ‘we have the most generous welfare package for refugees in the world. That’s why they’re coming here, because they get the best deal here.’” (Toronto Star, September 15, 2012)
Immigration Minister Jason Kenney has repeatedly denounced the wholesale welfare scamming being perpetrated by many Gypsy “refugee” claimants. And, as to Ezra Levant’s charge that many are phoney refugee claimants, that is the conclusion of the Canadian Immigration and Refugee Board, which rejects the overwhelming number of claims. Think about it. Hungary is a democratic country and part of the European Union. If Gypsies felt persecuted in Hungary, they could move, let’s say to Germany. The rub is that, while they get welfare and many social benefits including housing in Hungary, most other European countries would require them to work. They would not get welfare. So, hey, head to Pollyanna Canada, say the magic “refugee” word, scarf up welfare and other social services and maybe do a little bit of thieving on the side. A healthy nation would not rely on political police to investigate “hate.” We should have a full debate. Let the complaining Gypsy leader Gina Csányi-Robah offer evidence that her people are not disproportionately involved in shoplifting Perhaps, she can bring forth evidence that the shoplifting is really being perpetrated by clever Icelanders in dark face, dressed up in “Eastern European folk costumes.”
A full 98 per cent of Gypsy refugee claims worldwide end up in Canada and the vast majority of these claims are abandoned or rejected. The government is bringing in new legislation to limit Gypsy “refugee” claims. Immigration Minister Jason Kenney ” hopes to create a list of countries that generally don’t produce refugees, to make it easier for the Canada Border Services Agency to separate unfounded refugee claims from those that have merit. Hungary, where a bulk of Roma refugee claims come from – and from where the vast majority are abandoned, withdrawn or rejected – would be on that list. ‘Countries whose nationals have an acceptance rate of 25% or less, or where 60% or more of claimants from a country have abandoned or withdrawn their claims … would be subject to designation,’ he said.” (CNEWS, October 16, 2012).
Canadians seem to approve. They were asked: “Do you think the federal government should attempt to limit Roma refugee claims?” An overwhelming 85.7% said yes; 10% said no; and 4% were not sure.”? (CNEWS, October 16, 2012).