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 On June 4, well before he rendered his decision, the House of Commons repealed Sec. 13.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.