Federal Court of Appeals Rules Sec. 13 (Internet Censorship) is Constitutional & Penalties Are Back
The Federal Court of Appeals has confirmed again that the highest courts of this land are dominated by Cultural Marxists. Free speech took another battering. The issue was whether Sec. 13 (Internet censorship) of the Canadian Human Rights Act is constitutional. After years of protest. Parliament repealed this odious piece of censorship in June, 2013.
Marc Lemire and his Freedomsite had been the victims of a Sec. 13 complaint filed by serial complainant Richard Warman. The case was fought for six years, resulting in the only victory under Sec. 13 (truth is no defence, intent is no defence ( in September, 2009, when member Athanasios Hadjis essentially found Sec. 13 unconstitutional as it imposed financial penalties and when the Supreme Court upheld a milder version of the law in Taylor, in 1990, they did so, in part, because it was remedial. The Canadian Human Rights Commission sought judicial review (in Federal Court). The hearing was in December, 2011. The Federal Court ruled the law constitutional but agreed that the penalties were out. Marc Lemire then appealed to the Federal Court, which heard the case on November 14.
The three judges ruled Sec. 13 is constitutional and the financial penalties are back in.
In his judgement, Mr. Justice Evans, closely followed the Supreme Court in its decision in Whatcott, the case of the Saskatchewan Human Rights Commission fining William Whatcott for distributing leaflets critical of homosexuals some 13 years ago. The Whatcott decision was a viciously anti-Christian ruling that was classic Cultural Communism. The Frankfurt School of communists, which is the evil genius behind political correctness (radical feminism, the homosexual agenda, the mis-named “civil rights movement”) is based on a radical view of “equality.” All people are equal, say the true believers. Of course, when that’s not the way things
work out, then laws must be used to impose equality. It is from this view, for instance, that Canada’s nutty Supreme Court decided that the traditional definition of marriage is out: if a man can marry a woman, then a man should be able to marry a man.
Let’s look at some of this decision’s reasoning, as ideology trumps freedom of speech and even logic.
In Mr. Lemire’s submissions and in Mr. Hadjis’s decision, the conduct of the Commission was very much in question. Contrary to the approach endorsed by the Supreme Court in Taylor, the Commission and Mr. Warman refused repeated requests for mediation.
“In particular, the Tribunal noted, unlike complaints of other kinds of discriminatory
practices, the Commission had rarely attempted to mediate section 13 complaints. Instead, it
referred the vast majority of them to the Tribunal for adjudication, and regularly sought
compensatory awards and penalties. Moreover, the Commission often continued to process
complaints after impugned material had been removed from the website on which it was posted.
Indeed, in the present case, Mr Lemire had removed most of the material before he was notified of
Mr Warman’s complaints, and promptly removed “AIDS Secrets” from Freedomsite after learning
that it was the subject of a complaint to the Commission. Further, the Tribunal found, the
Commission had not attempted to resolve the complaint by conciliation.”
But, none of that mattered to the Federal Appeals Court. Perhaps, the overworked thought police at the Canadian Human Rights Commission just didn’t have time for mediation or to notice that Mr. Lemire had swiftly removed all the impugned posts. If mediation were the approach of the Human Rights Commission, as the SCC found in Taylor, surely this should have mattered, but no!
” After finding that the Tribunal had no authority to examine the conduct of the Commission for the purpose of determining Mr Lemire’s constitutional challenge to section 13, the Judge considered whether the Court could examine the manner in which the Commission administered section 13 when determining whether it is a reasonable limit on section 2(b) rights and thus saved by section 1. He held that the way in which Commission exercised its statutory administrative powers was not relevant to the validity of section 13.
Nor do I accept that the effects of the Commission’s conduct have displaced the valid
objectives of section 13, namely the prevention of discrimination against vulnerable groups on prohibited grounds. Conciliation is not the only constitutionally permissible manner in which the Commission may approach the enforcement of the CHRA in general and of section 13 in particular.
Because of the nature and relatively small number of section 13 complaints, as well as the
extreme kinds of speech proscribed, I agree with the Judge (at paras. 63-64) that the Commission cannot reasonably be criticized for being reluctant, in this and other section 13 complaints, to devote scarce resources to mediation and conciliation, or to accept offers to take down offending material
Too bad for Lemire if his rights to due process were trampled on.
The Federal Court of Appeals leaned heavily on Mr. Justice Rothstein’s decision in Whatcott. The wording reflects the Frankfurt School’s conspiracy theory of reality: there are dominant majorities — White and usually Christian and male — oppressing “vulnerable” minorities, who must be given special protection by “human” (actually, special) rights legislation.
Here’s the argument:
“Writing for the Court in Whatcott, Justice Rothstein summarized (at para. 59) the
principal elements of hate speech provisions in human rights legislation that provide the degree of objectivity required by the Charter.
… [W]here the term ‘hatred’ is used in the context of a prohibition of expression in
human rights legislation, it should be applied objectively to determine whether a
reasonable person, aware of the context and circumstances, would view the
expression as likely to expose a person or group to detestation and vilification on the
basis of a prohibited ground of discrimination.
In other words, “[t]ribunals must focus on the likely effects of impugned expression in
order to achieve the preventive goals of anti-discrimination statutes” (at para. 54). … Addressing the objectives of hate speech provisions in human rights legislation, Justice Rothstein said (at para. 71):
When people are vilified as blameworthy or undeserving, it is easier to justify
discriminatory treatment. The objective of … [hate speech provisions] may be understood as reducing the harmful effects and social costs of discrimination by tackling certain causes of discriminatory activity.
[Justice Rothstein noted (at para. 75) that a “particularly insidious aspect of hate speech” is that it effectively blocks the target group from responding. It does this not only by attempting to marginalize the group so that their reply will be ignored: it also forces the group to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of democracy.
Finally, Justice Rothstein observed (at para. 120) that because of its narrow definition, hate speech constitutes ‘an extreme and marginal type of expression’. It ‘contributes little to the values underlying freedom of expression and … its restriction is therefore easier to justify’ under section 1. “
So, “hate speech”, because the Court doesn’t like its message, is not a legitimate form of “freedom of expression.” And, of course, as even a high school student can see, then there really isn’t FREEDOM of expression. Note the utterly unproven conspiracy theory that a [posting on Marc Lemire’s website critical of homosexuals intimidated or silenced homosexuals. In fact, it was busybody Richard Warman, not homosexuals, who complained against Marc Lemire. During the years this case has inched through a tribunal and on to the Federal Court, homosexuals have gained the right of same sex marriage, many Canadian cities are flying rainbow flags in support of supposedly aggrieved homosexuals in Russia, several provinces have imposed militantly pro-homosexual curricula even on little grade school children and Canada’s present “Conservative” government is among the most “gay” friendly ever. There is NO objective evidence that Kevin Strom’s article on The Freedomsite, long since removed, ever intimidated or silenced anybody.
The person who faces silencing is Mr. Lemire!
The Court has no trouble with the fact that neither intent nor truth is a defence:
“Hate speech constitutes an extreme form of expression of limited scope that fosters a
climate in which unlawful discrimination may be regarded as acceptable and flourish. It does this by demeaning, vilifying, and marginalizing groups of individuals who share characteristics that constitute a prohibited ground of discrimination under the CHRA. Since hate speech contributes little to the values underlying free speech, its proscription is fairly easily justifiable under section 1. Hate speech constitutes an extreme form of expression of limited scope that fosters a climate in which unlawful discrimination may be regarded as acceptable and flourish. It does this by demeaning, vilifying, and marginalizing groups of individuals who share characteristics that constitute a prohibited ground of discrimination under the CHRA. Since hate speech contributes little to the values underlying free speech, its proscription is fairly easily justifiable under section 1. “
As to penalties, only the African Canadian Legal Clinic, represented by two lawyers who were, well, decidedly un-African or Black, wanted the penalties restored. The Federal Court of Appeals ruled: “I agree with the Judge that it is not constitutionally permissible for human rights legislation, to include a sanction designed to impose a punishment that expresses society’s moral opprobrium of the conduct of the wilful communicator of hate speech. ”
It doesn’t matter: Impose a punishment anyway and call it something else:
” The Supreme Court recognized for the first time in Whatcott that the imposition of a
financial sanction was a constitutionally permissible remedy for breach of a hate speech provision in human rights legislation. Thus, Justice Rothstein said (at para. 149): As in tort law, an award of damages made pursuant to the Code is characterized as compensatory, not punitive, and is directed at compensating the victim. However, the circumstances in which a compensation award will be merited should be rare and will often involve repeat litigants who refuse to participate in a conciliatory approach. ” So a financial award is not “punitive”?
The plain meaning of English is being bent like a pretzel.” Since subsection 53(3) does not in terms require proof of loss by the victim, it is not compensatory in precisely the same way as paragraph 31.4(b) of the Saskatchewan Code which applies when the hate speech caused the injured person to suffer with respect to feeling, dignity or self-respect. Nonetheless, when applied to breaches of section 13, subsection 53(3) can be regarded as compensating victims specifically identified in hate speech for the damage presumptively caused to their “sense of human dignity and belonging to the community at large” which Whatcott
recognized (at para. 81) that hate speech causes. In my view, when the penalty provisions are considered in the context of the objectives of the CHRA and its remedial scheme, they are not properly characterized as penal in nature.”
To compensate identified people “for the damage presumptively caused to their ‘sense of dignity’”? Note the weasel word “presumptively”. Thus, no real damage or injury has to be proven at all.
So, where does this decision leave freedom of speech? On one level, the ruling of the Federal Court of Appeals will effect only Mr. Lemire who now faces a sentencing hearing, should he not appeal. As Sec. 13 has been repealed, the Federal Court of Appeals decision is largely moot. However, and this is a big however, as Sec. 13 has been ruled constitutional, another government, say Liberal of NDP, could reintroduce it. And there lies the danger.
CAFÉ has been an intervener and has supported Marc Lemire throughout his 11-year ordeal. CAFÉ’s submissions were studiously ignored by the federal Court of Appeal. For good reason. CAFÉ reminded the Court of the testimony before the Tribunal of Professor Michael Persinger. The eminent neuropsychologist sank the leaky scientific ship on which all this Frankfurt School “vulnerable minority” theory is based. His expert testimony testified that people subjective to “aversive speech” (not the emotional “hate speech” label, but views contrary to or critical of their own group) do not fall apart in fear, withdrawal or alienation: they either reject the criticism as crazy or laughable, or fight back and argue – both healthy reactions. The Court ignored the submissions that their ideology that forms the justification for the erasing of free speech through Canada’s various “anti-hate” laws is as utterly without scientific basis as the views of the flat earth society.
CANADIAN ASSOCIATION FOR FREE EXPRESSION
Censorship Victim Marc Lemire Comments
The court is an insane asylum! Stay as far away from it as you can, if you want any “justice”!
The three Appeals court fossils upheld Section 13, and REINSTATED the penalty provisions, although all the main parties agreed it was unconstitutional! The only party who wanted it was the “African-Canadian” legal clinic, whose two religio-ethnic lawyers were distinctly non-“African Canadian”.
Those judges were rubbing their hands together when the “African-Canadian” legal clinic made submissions about how the penalty provision is not actually a penalty. And the Judges were their argument, almost verbatim, in this decision.
I guess this means… back to the Tribunal for me. For my penalty/non-“penalty” phase, where they slap me with a lifetime speech ban and possibly thousands in penalties/non-”penalties”.