March 2008
You are currently browsing the articles from Jay Currie written in the month of March 2008.
If you read no other commentary on the March 25 Warman v. Lemire hearing, read Ezra’s.
He hits many of the real questions which underlie this farce of a proceeding:
Why only one day? Why was Stacey allowed to defy the Tribunal? Why was senior management excused? Why was Warman allowed special access to the Commission’s computers? Why was Warman, after he no longer worked at the Commission, training the employee who was investigating his file.
Ezra’s piece is, essentially, the road map for an application for the judicial review of this legal embarrassment.
It is also a call to arms. The real solution here is political. Emails, letters and phone calls to the CPC members of Parliament and Cabinet. In particular the Minister of Justice. Support for Keith Martin’s motion to kill s. 13.
The Commission’s legal strategy was to run out the clock, I suspect that is the political strategy of the Commission’s political supporters. Which means we need to keep the pressure mounting.
Written by jay on March 27th, 2008 with 3 comments.
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The March 25 Warman v Lemire Human Rights Tribunal hearing has come and gone with more questions raised than answered. The left and right sides of the Canadian blogosphere have posted assorted analysis. Warman didn’t bother to turn up.
What we learned was that CHRC investigators:
- routinely use alias on the internet
- obtain information from police forces which was originally obtained by warrant
- may have used an open wi-fi location to post material to the net
- investigate sites where there is no complaint but might be
- investigate sites if there is the possibility of a “threat” to CHRC investigators
- do not keep records of what alias is used for a particular posting
- share alias
- give certain complainants access to CHRC computers
- allow complainants to train the investigators assigned to their case
- refer to MOUs with police forces in documents while denying the existence of said MOUs
There is more, but that is to gilt the lily.
I am not a fan of s. 13 of the Canadian Human Rights Act. But that is a purely political and constitutional position. What the cross-examination of Dean Stacey (and the very ill-prepared and forgetful Ms. Riszk) revealed is an agency of the Federal Government which, apparently, has no management systems, no chain of evidence and no serious controls with respect to its investigations.
Even if you think s.13 is the only bulwark between Canada and the Third Reich you should be concerned with the utter lack of supervision and proper control over the investigative activities of the CHRC.
The Lemire case, if nothing else, strongly suggests the CHRC needs to examine its internal policies. Leave aside the unfairness and the bias which Stacey’s testimony revealed; the fact is that the human rights cowboy strategy to which he testified is ultimately self defeating.
Imagine for a moment a police force which, for example, took evidence of criminal activity improperly obtained by a third party and then charged people with crimes based on that evidence. Or a police force which, knowing there was a grow-op somewhere in your neighbourhood, posed as the “Welcome Wagon” to gain access to every house in that neighbourhood. (And, just for fun, add the happy thought of that police force dropping little baggies of pot behind your couch to see if you would pick them up.)
Do you think for a minute a police force which routinely did this sort of thing, apparently with the approval of the chain of command, would secure many convictions?
And imagine if that police force didn’t bother keeping records of the “Welcome Wagon’s” visits.
The CHRC is not the police. As my leftie friends are fond of pointing out the CHRC is a remedial rather than prosecutorial organization. However, if one is before the Tribunal that is a distinction which makes precious little difference.
Nor should it. At a minimum basic management and procedural systems need to be in place. These need to include some basic rules.
- no investigation without a complaint
- no “preferred” complainant status
- no undisclosed “evidence sharing” arrangements with police or security services
- express, written, permission from management for all entrapment or sting operations
- proper contact reports
- verifiable chain of evidence procedures
If we assume for a moment that s.13 is a good thing then it is critical that the CHRC conduct its investigations into s.13 complaints in a professional and legal manner.
So far the CHRC has been lucky in its respondents: most have limited resources and are deeply unsympathetic. Very few have been able to devote the time and the money to mounting a defence at the level of Lemire’s defence. And, frankly, Lemire’s defence has really only scratched the surface of the profound mismanagement, procedural arrogance and legal ignorance which the CHRC has demonstrated. That the Commission has a 100% conviction rate in the face of its investigators’ apparent incapacity and its management tolerance of that incapacity underscores the overbreadth of the provisions of s. 13.
No matter what the final outcome of Warman v Lemire the case has, or should have, alerted the Commission to the fact it needs to get its own investigative house in order.
Written by jay on March 27th, 2008 with 10 comments.
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The hearing got off to a rocky start for the CHRC lawyer, Ms. Blight. The Chairman, Mr. Hadjis, had received a list of questions from Ms. Blight that the CHRC had refused to answer in the previous hearing, citing Section 37 of the Evidence Act. It was her intention to try to limit the questions that were asked in this hearing to only the questions that had been asked before and refused. The problem with the document she sent to Mr. Hadjis is that she had helpfully included the answers she expected the witnesses to give! connie fournier, no apologies
Written by jay on March 27th, 2008 with 3 comments.
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So what was actually going on at the Lemire Hearing yesterday? My bet is - along with trying to ferret out some information - Lemire’s people were looking toward the Federal Court in the event that the decision here follows all the rest of the s 13 complaints and goes against the respondent.
As I understand the allegation against Lemire he is supposed to have allowed comments which violated s.13. What he and his lawyers have - to a degree - established is that those comments may have been posted by one or another of the CHRC investigators. Lemire has also, to a degree, established that the investigators operated without much in the way of supervision or record keeping.
As well, Stacy’s flat out refusal to answer one question, the assorted redactions, Riszk’s absent memory, the failure of Commission counsel to bring relevant files or to be properly prepared and the absence of Stacey’s “reader” (who would be very interesting to cross examine in her own right) all suggest that the hearing itself was procedurally flawed. Stacey’s admission that it was a regular practice of the “investigators” to pre-investigate sites against which a complaint might be filed suggests pretty profound process abuses at the CHRC. (And I have to love the now established fact that some Commission investigators went “war driving” to find open Wi-Fi hotspots to post their filth from. I see that as further confirmation that Warman used his home computer until he got nailed on his IP and, realizing that could happen again, the “investigators” took to the road.)
Evidence that the complainant - Lucy - dropped by to use the CHRC facilities to track stuff down, train the investigator on the case and such like suggests a huge bias in the process.
Judicial Review requires errors of law or fact on the face of the record. There is a huge degree of deference from the Court to the Tribunal built right into the HRA. Basically, to have a chance on appeal Lemire has to prove that there were substantive and procedural errors which were significant. I am not sure yesterday’s hearing will have done that; but the overall case has a five day old fish odor.
Again, however, it should not rest on the respondent to take on the entire CHRC; rather there needs to be a judicial investigation of the methods and tactics of the Commission. It needs to happen immediately.
Written by jay on March 26th, 2008 with 21 comments.
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At the end of the session Doug Christie revisits this questioning. He comes across as a bitter and angry blowhard, but they go a long way to establishing what appears to be a very ugly pattern. Someone (let’s call him Lucy for sake of argument), tries to get the police to proceed with hate crime charges. The police use their full powers to investigate, including issuing warrants and seizing evidence. They eventually decide that either no crime has been committed or the burden of proof is just too high, so drop the charges and pass the evidence on to the CHRC where regular rules of evidence and burden of proof don’t apply. Whether or not this is a conscious strategy on their part (and Steacy insisted it was not), it would certainly appear that that is indeed the end result, based on the examples provided today. Jaeger at sda
Relative to the police, CHRC investigators have pretty limited powers. They would, for example, have a hard time getting a warrant to seize and crack a hard drive. But why should that stop them?
The scenario Jaeger outlines above is entirely plausible. Proven? Not yet. But the groundwork has been laid.
It is well past time for a full scale judicial investigation into the methods and tactics of the CHRC. The evidence which came out today is not, in itself, the smoking gun. Rather it is the whiff of cordite which suggests guns are being fired close by.
Time for the spineless CPC to appoint a judge and get on with the task of cleaning up this mess.
And, while we are looking at this, it might be an idea to look a little more closely at the police forces which, apparently, handed over evidence obtained under warrant to “investigators” who a not likely to have been entitled to that evidence. Whether or not there was a Memorandum of Understanding as between a particular police force and the CHRC is irrelevant. If evidence obtained during the course of a criminal investigation is released to a third party a serious abuse of process has occurred.
Written by jay on March 26th, 2008 with 4 comments.
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Dr. Dawg attended the Warman v. Lemire hearing today and has a decent summary of what was, pretty inevitably something of a non-event.
He brooked no nonsense, in his understated way. No, he didn’t discuss any cases with Warman. Yes, his manager knew about his postings. No, he didn’t work on any file with Warman. dr. dawg
“Barbara K reads a long testimony by Richard Warman in a previous hearing into the record. I wasn’t sure where she was going with this at first and we will have to examine the transcript to be sure I have the details right, but it seemed to chronicle a series of events like this:
1.Warman enters a document into evidence that he claims he printed out Friday, December 8. The document is a printout of a posting that starts with “Welcome, Jadewarr”, indicating the user signed on using that account. (Note that Steacy has claimed he never gave Warman the password for that account).
2.Warman “revises” his testimony that the document “originates from the commission”.
3.Pressed further, Warman says he doesn’t know the origin of the document.
Finally, she asks Steacy if he knows where the document came from. He replies that Warman came over to the Commission, searched for the post in question and couldn’t find it, then signed on using the Jadewarr account, found the post and printed it. This was one of a series of incidents that displayed a remarkably cozy dance between Warman registering a complaint and the commission prosecuting it, all the while not being very transparent about how close they work with Warman and later, other police forces. Jaeger at sda
Now for those of us following the Warman antics and the weird relationship between Warman and the CHRC this is interesting. Being the complainant and a staffer (or an ex-staffer) presents more than a few challenges management should have been dealing with. And it poses a bit of a contradiction to Dawg’s, I think correct, summary of Stacey’s evidence as being that he did not work with Warman on any file.
It is these small inconsistencies which add up to the capacity, in argument, to discredit both the complainant and the Commission investigation.
Written by jay on March 26th, 2008 with 10 comments.
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Poor Kady.
As predicted this is going to be long and tedious without, I suspect, anything like a gotcha moment.
It appears that Riszk was in an out in twenty minutes which, if this is the case, is surprising. She was, after all, the investigating officer on the Lemire file.
The point of this hearing is to fill in some details as to how the CHRC’s investigations are conducted. It is not about argument or characterization and so, inevitably, will be a bit dull. But apparently there is a good turn out and people are polite.
No evidence of Nazi uniforms or other bits of gratuitous offensiveness.
Written by jay on March 26th, 2008 with 3 comments.
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Ultimately, that has to be the logical conclusion of Kate’s argument. It doesn’t really matter what a person says about others on the basis of race, so long as that person takes no state action on the basis of such views. It is why she has no problem defending the indefensible like Mark Lamire; he hasn’t actually done anything other than speak words, so she is willing to work with him. jason cherniak
Not that Kate needs a defence against morons like Cherniak but, for a moment, consider what the silly boy/man is saying. First, that Kate is “willing to work with” Lemire. No, Kate, like me, wants to see the CHRC shut out of the licensing of speech. Lemire is one case, Levant is another, Steyn is another; all turn on the question of whether the Human Rights Commissions in Canada should have anything to do with the regulation of speech.
However, Cherniak is quite right in stating that, for me (and I suspect Kate), it does not matter a whit what people says about others on the basis of race. Want to call Arabs pre-Enlightenment scum, be my guest, want to call Jews (who are hardly a race) money grubbers or imperialists or whatever, fine. Want to call we Scots-Irish genocidal bastards, go right ahead. What you do when you do that sort of thing is make yourself look like a bigoted idiot. Which, so far as I am concerned is just fine.
More to the point, it is not and should not be any business of the state’s.
What Kate points out in her piece is that it was not until the Nazis took over the state that they were able to bring their horrid dreams to reality. Which is why people like me, and I rather think Kate, are so entirely suspicious of the state in all its forms. We want a small, relatively powerless state powerfully constrained by law. We want a state which will not imagine itself as the custodian of our thoughts or our speech.
Because, Jason, we have learned the lesson of the Third Reich and of the liar Warren Kinsella’s favorite political philosopher, Lenin - when the state is powerful enough to attempt to command our thoughts or our speech, our freedom is in grave jeopardy. Your boy Pierre recognized that and we have the Charter to, if only the SCC would let it, protect us against the do-gooding loonies of the state.
Written by jay on March 25th, 2008 with 8 comments.
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We are going to see what the CHRC has to hide and how well it hides it. But, realistically, no one should be expecting a slam dunk on any of this.
This is a very narrow hearing. It is the result of Marc Lemires victory in the Federal Court of Canada which allows him to ask questions which, previously, the CHRC attempted to refuse to answer based on a claim of public interest exemption under s. 37 of the Canada Evidence Act which was struck down in Federal Court..
Now these questions go to the methods used by the CHRCs so called “investigators” in trying to track down the alleged neo-Nazis posting to Lemires websites. (At least those who were not CHRC employees.)
There is unlikely to be a smoking gun nor is it likely that the Chekist with a white cane Dean Stacey will repeat that freedom of speech is an “American idea”. Ideally the hearing will be very, very, very boring and will, layer by layer, expose the means by which the CHRC has “investigated” alleged “hate speech” in Canada. The witnesses will have been throughly woodshedded and will tend to say things like “I do not recall.”
Watch for Ms. Rizk trying to be honest and being blocked by CHRC counsel. And, with luck, watch for Dean Stacey to lose his temper. If Rizk speaks or Stacey is goaded into getting mad we might have some fun. But, realistically, tomorrows hearing will be about a few more nails in the CHRCs s. 13 coffin.
(And, yes, I do know what an apostrophe is…unfortunately my computer is having a seniors moment.)
Written by jay on March 25th, 2008 with 3 comments.
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My outdoor Christmas lights are still up. White, incandescent…very bright.
Watching the stars and getting “busy” with someone special are among Canada’s top picks for what they will be doing during Earth Hour next week, according to an online survey.
Earth Hour is a global lights-out initiative, organized by the World Wildlife Fund, that’s encouraging people to turn off their lights for one hour at 8 p.m. on March 29 to show their support for action on climate change. canwest news service
The only sad thing is that almost all of British Columbia’s electricity is hydro generated so my turning on my lights will make about as much difference as the idiots turning theirs off. Ah well, it is the thought that counts. Oceans cooling, temps trending down, two months into the solar cycle and minimal sunspot activity, crazy people turning their lights off and trying to scare their children; but we have to start somewhere and, with Tim Blair, I am starting with keeping my lights on at 8PM March 29.
All of them.
We have to start somewhere.
Signing on for the Hour of Power: London Fog; dust my broom; Mitchievile;
Update: My fellow illumination activist Tim Blair gets one or two more comments than I do and they are spitting beer on your screen funny:
Thunderdome-style carbon footprint: Face the space heater and the air conditioner to each other. Switch both on. See which wins.
Two go in. One comes out. Drink beer while cheering for your favorite.
Written by jay on March 24th, 2008 with 6 comments.
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