Judges Reserve in Lemire Appeal Challenging Constitutionality of Sec. 13

Judges Reserve in Lemire Appeal Challenging Constitutionality of Sec. 13

TORONTO, November 14, 2013. The now repealed Sec. 13 of the Canadian Human Rights Act should be found to be unconstitutional, as well, Marc Lemire, victim of a 10-year long battle with Richard Warman, argued this morning. Supported by interveners, the Canadian Association for Free Expression and the Canadian Civil Liberties Association, Barbara Kulaszka, Mr. Lemire’s erstwhile lawyer insisted: The Canadian Human Rights Act “was a statute designed to help little people against big government or corporations, but the Act’s Sec. 13 has hit little people having a beer and posting on the Internet.” Three Federal Court of Appeals judges reserved and retired to mull over their opinion

“The fact Parliament has repealed Sec. 13 should be taken into account,” Miss Kulaszka argued. Before penalties, now ruled unconstitutional were added in 1998, and, until Parliament, in 2001, legislated that Sec. 13 applied to the Internet, this section was largely unused. Interestingly, she added, “it has been used primarily by one man (Richard Warman), a White male, not the minorities” it was said to protect.”

In almost every case, “Richard Warman and the Canadian Human Rights Commission had joint submissions and always wanted penalties” assessed against the victims. In Mr. Lemire’s case, they originally sought a $7,500 penalty.”

Sec. 13, she argued, “is an anomaly within the Canadian Human Rights Act.” Most complaints under other sections of the Act result in settlements. “Until the Lemire case, there was a 100 per cent conviction under Sec. 13.” The Act, she added, “was designed to help little people against government or Crown corporations. However, Sec. 13 hits little people having a beer and posting their ideas on the Internet.”

Mr. Warman, she reminded the three judges hearing the appeal, never contacted Mr. Lemire about the Freedomsite message board that he complained about. By the time Mr. Lemire was served with the complaint, the message board had already been taken down. “The message board was taken down in early 2004. The complaint came in March 2004,” but proceeded nonetheless.

Mr. Lemire took down all six specific articles in the Warman complaint. “I wrote to the Commission and said all the impugned articles had been removed, but I received no reply,” Miss Kulaszka recalled. “Instead they started hunting for more material.”

The Internet, she explained, “is very different from a telephone answering machine.” Telephone messages were the original target of Sec. 13. “Accusations of ‘hate’ carry incredible stigma. It is not the equivalent in the public eye of the accusation your business failed to provide a ramp for the handicapped,” she added.

“The Internet is loved by the people but feared by the courts. Maybe, it’s generational. The Internet is empowering and people can talk back. Perhaps, Karen Mock testifying for the League for Human Rights of B’nai Brith in this matter put it best when she said education was the best way to fight ‘hate.'”

Sec. 13 should be ruled unconstitutional so that “ordinary people can self publish on the Internet, argue back and forth, and not have to have a lawyer present,” she concluded.

Barclay Johnson, a Victoria lawyer, representing the Canadian Association for Free Expression, reminded the appeals judges that, in their ruling on Keegstra and Taylor (which upheld the old version of Sec. 13), “the Supreme Court of Canada did not have the benefit of expert scientific evidence” that was led in the Lemire case “which discredited the scientific justification for ‘hate laws’; namely, the supposed dire effects on minorities of so-called “hate propaganda.”

CAFE’s lawyer Barclay Johnson of Victoria

The Court relied on Frederick Kaufman’s “basically Freudian analysis. His report had formed part of the Cohen Report on Hate Propaganda.” In this case, the defence led the expert evidence of Dr. Michael Persinger who exposed “the inaccurate methodology of Kaufmann. Persinger said:’I don’t use terms like ‘hate’. I use the tem ‘aversive stimuli. ‘Hate’ is a subjective term or label. The term ‘hate’ is arbitrary and highly subjective. Persinger’s evidence was not available to the Supreme Court in reaching their recent decision in Whatcott. The psychological field has changed,” Mr. Johnson added. The Court had relied on what we now know to be junk science.

Mr. Lemire’s Freedomsite “was not a public communication. Someone had to go looking for it. Mr. Warman wasn’t just walking down the street and saw the Freedomsite. In Crooks and Newton, the Supreme Court found that people using a hyperlink are involved in a private conversation. Hyperlinks are like a reference to material. They indicate that something exists,” he explained, “but you have to make the choice to go and call it up. Mr. Warman went looking for evidence of ‘hate’. That method of getting information is private. In this case, Mr. Warman was going to websites in order to be offended,” he added. “Mr. Warman did not go to a Canadian website but to one {the Freedomsite] hosted in the U.S.”

Concluding, Mr. Johnson said, “for Mr. Lemire to be responsible for everything uploaded to a website outside the country is unfair.”

Predicting the outcome of the appeal is perilous but the three presiding justices seemed to perk up when the two very pale lawyers — are there no Negro attrorneys? — speaking on behalf of the African Canadian Legal Clinic extolled the importance of penalties (which Judge Mosley had ruled unconstitutional).