A Shield not a Sword
A bazillion years ago in law school I was reading cases about a relatively obscure doctrine known as estoppel. I remember little and it matters less but I was struck by the phrase, “Estoppel is a Shield not a Sword.”
I’ve now had time to reread the decision in Warman v. Lemire as well as Taylor. As I read them again I was trying to figure out why Member Hadjis went to such lengths to impugn the constitutionality of s. 13 and s. 54. After all, he could have easily decided on the merits that none of the purported Lemire posts met the standard for hate speech set out in Taylor. But, five years on, and against the pleas of the Department of Justice that he rule on purely procedural grounds, Hadjis decided Lemire on Charter grounds having carefully picked one complaint to uphold.
Why?
Well, something has changed since Taylor was decided. And, no, it was not the passage of s. 54, a penalty section. If that was all that was wrong with the CHRC’s process, Hadjis could very easily have “read out” the penalty clause and imposed a cease and desist order. But he didn’t.
Now there is no question that Hadjis was aware of Taylor. He is a seasoned human rights lawyer and he cited Taylor over and over in the decision. And while he noted that the amendments to the Act following 9/11 added the penalty clause he also noticed something far more important in Taylor.
Dickson, CJC wrote the majority opinion in Taylor and he understood the intent and the practice of the CHRC with respect to speech to be primarily remedial and conciliatory.
How things have changed since one man become first an investigator for and later the chief complainant to the CHRC.
In the ordinary course of things, before Richard Warman arrived at the CHRC, the Commission would investigate complaints under s. 13 as they were made by ordinary citizens. It waited for a complaint and then it acted. As it happened, there were not a lot of complaints under this particular section. The Commission was passive, it had no agenda except in the vague sense that it would, if asked, investigate and refer to the Tribunal what members of the public took to be extreme expressions of hate.
Now, Richard Warman, brought a different agenda to the Commission. “Maximum Disruption”. The CHRC’s hate crimes unit was no longer in the business of passively waiting for citizens to complain about hate speech. Now the idea was to root out hate speech and rigorously prosecute it. The Commission sought Memorandums of Understanding with various police forces. It investigated websites even before complaints were filed. A phone call was enough to have the Commission investigate a website.
The logic of “maximum disruption” was all aboutgetting the haters (however defined). When Warman left the Commission he made a practice of filing complaints against the sorts of basement Nazis and white supremacists who made the best targets for his award winning tactic of “maximum disruption”.
Gradually the Commission was transformed from a remedial body to a prosecutorial entity which danced to the tune of its chief complainant. (To the extent that when particular complaints were investigated they were investigated by Warman trained investigators using Warman developed techniques.)
Slowly, the Commission was reconfigured from a shield to a sword.
Now, as Hadjis elegantly lays out, the ruling in Taylor never contemplated the CHRC as prosecutorial. Chief Justice Dickson never imagined that one man would turn the Tribunal into a Star Chamber in which the ideals of remediation, conciliation and good faith gave way to the most vicious sorts of adversarial behavior.
Taylor protected the Commission so long as its intent and practice was remedial. What Hadjis recognized in his decision is that one agenda driven man perverted the ideals and the intent of the Commission to his own ends.
Rightly, Hadjis’ decision has put a stop to that perversion. It should be appealed simply to ensure that Warman’s perversion of s. 13, and the Commission’s willingness to enable that perversion, is finally and definitively ruled unconstitutional.
S. 13 might have had some use as a shield, but as a sword it is pointed at the most fundamental freedom there is in a democracy: freedom of expression. That sword must be destroyed.
September 4th, 2009 at 9:52 pm
Nicely put Jay! Even I understood that…:)
September 4th, 2009 at 10:06 pm
Thanks for the spot-on non legalese analysis.
September 4th, 2009 at 10:12 pm
The fact is simple and ironic.
THANK YOU RICHARD WARMAN. For getting rid of Section 13.
It was Warman’s actions against Lemire that caused this law to fall. Warman and his refusal to ever mediate, no matter how many times Lemire tried. Warmam’s antics are what is bringing down Section 13.
And the CHRC just went along with Warman. Hook, line and sinker.
If Warman had ANY balls, he would appeal this. he has the right to. If you love Section 13 so much, then spend your OWN money and appeal. He won’t. Warman is scared of Lemire. That’s why he ran out of the hearing room after only 5 days and never returned. Even tho the case continued for 2 more years.
In fact, I would donate $500 to see Warman appeal this. After all it’s like giving the money to Lemire, since Warman will be on the hook for some serious costs (6+ years for his frivolous complaint)
September 4th, 2009 at 10:47 pm
Ricky was right – never let Lucy work at the club.
September 4th, 2009 at 11:11 pm
I think you are spot on the money trail Jay. Not only did they undertake MOUs with various law enforcement agencies and use one of Edmonton’s finest, the CHRC knew it was changing its mandate thus as far back as 2003 they were negotiating a landing spot for Warman at DND.
DND is not allowed to spy on Canadians but JAG? Call it something else. Remember Rose’s find?
“If you google JAG annual Prefeormance Report-FY 2003, go to page 9 and near the bottom of the page labeled Client Objectives funding etc you will find the following statement: a legal section to provide LITIGATION SUPPORT for the CHRA tribunals and courts.”
DND is now complicit in this game. Shame on them McKay m,ay now be fined for other Ethic’s violations. :)
September 4th, 2009 at 11:26 pm
Hmm I do get DND visitors yikes!
September 5th, 2009 at 3:09 am
Excellent explanation! I’m with DaninVan, I understood it too (a miracle) :) – thanks!
September 5th, 2009 at 4:31 am
Thank you for this explanation. Who was the Justice Minister when this change occured? Who was the CEO of the Commission? Is there no oversight of people on the Government payroll?
September 5th, 2009 at 5:43 am
Have any of you considered that this is being set up to get a ruling by the Supreme Court that once again makes it clear that what the HRCs are doing is constitutional?
September 5th, 2009 at 7:39 am
So, the CHRT and the putative appellant are in cahoots? That is a bit chapeau metallic, no?
September 5th, 2009 at 8:08 am
Great explanation, but we still need a government with balls to kill the section and maybe even the HRC. I understand your frustration with the CPC, but if the LPC gets in, even with a minority – they will be supported by the NDP and I suspect HRCs will be given even more power. If there is an election (which I still doubt there will be) this needs to be an issue.
September 5th, 2009 at 8:49 am
Robert:
When our Charter says:
Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
the justification must come not from those expressing, but those limiting the freedom of expression. In other words, as it should be, to deny charter rights is serious business.
I don’t doubt that Mr. Hadjis had the Supreme Court justices in mind when writing it. In fact, I think that is what drove him to the decision he made. Imagine for a moment the Supreme Court justices hearing a challenge from Mr. Lemire if the decision went the other way, with all the procedural shenanigans etc. In comparison Mr. Hadjis’ decision would seem like soothing balm compared to a scathing denunciation and decision from the Supremes. Remember, a policeman followed a trail of blood into a home to arrest an alleged murderer. Evidence gathered there was inadmissible because the police didn’t follow procedural safeguards regarding, again from the Charter:
Everyone has the right to be secure against unreasonable search or seizure.
The decision makes clear that Taylor has a high bar for what constitutes hate speech, as necessarily it would since speech is a Charter right. And the decision is very clear that the fines imposed by the Tribunal make it far more than procedural and remedial.
For the Supreme Court to contradict Hadjis in this case would require them to agree that the flimsy procedural safeguards are adequate, that the fines, pursuit and prosecutorial activity does not venture into criminal prosecution areas, and that someone having on their site for a time, removing it when asked, with no evidence that he was responsible for it in any way constitutes hate speech.
In fact, if you read the dissent of Taylor, what Mr. Hadjis describes is what they foresaw.
There is no concept of jurisprudence within the framework of the CHRC, but what Mr. Hadjis is attempting to do is set some kind of jurisprudential limits and direction to the actions of the Commission. He recognizes that they went way too far with the Warmanesque application of section 13, and is attempting to set it right. Warman’s complaints and prosecutorial enthusiasm is absolutely contrary to the Taylor decision, and by following his direction the Commission has potentially put itself out of business.
I believe Ahenakew was found not guilty by proper courts, no?
Derek
September 5th, 2009 at 8:50 am
The CHRC (as I understand it) can be dismantled, unlike the Supreme Court.
With the CHRC’s evil doings firmly on-record, why on Earth would any (Canadian) court rubber stamp it? Hell, all they need to do is deny the appeal.
Man if that was me up there, I’d be booking my holidays…
September 5th, 2009 at 9:10 am
I don’t doubt that the Federal Government will appeal this decision.
The lawyer from the justice department argued that the fines did not change the commission from a procedural tribunal. Hadjis disagreed. Does that call into question any procedural tribunal’s fines? This is an important issue. There are all kinds of legislative commissions that arbitrarily and seemingly randomly start fining people and companies for alleged offenses without hearings or any seeming justification. Does a $10,000 fine constitute a penalty as in criminal sanction?
Ms. Lynch’s reaction indicates a surprise that the civil service can be questioned or held accountable in how they apply the law. This has been a Canadian tradition, respect for the civil service, and any disagreements have been sounded out at the political level. The penalties in the CHRC were from parliament, and it could be construed that the direction the CHRC took was at the prompting of parliament. I’m sure the civil service would like to see this before the Supremes to see where the blame is put.
And the human rights law industry would like to see this appealed. It puts a serious crimp on the mission creep, and must be challenged. I suspect they have the ear of the Justice department far more than even Ezra.
And those who support freedom of speech would like to see this before the Supremes. How Taylor was actually, on the ground, in commissions, before tribunals, applied seems to justify the concerns of the dissenters. Evidence could be supplied that the threat of various iterations of HRC’s is proof of the dissenters statement:
13(1) is too broad and too invasive and catches more expressive conduct than can be justified by its objectives.
Derek
Derek
September 5th, 2009 at 9:26 am
Put a handle on a shield and you have a handy spade…
September 5th, 2009 at 9:29 am
Further on the first point of procedural penalties.
Anyone in business in Canada is governed by up to a dozen different commissions, federal or provincial. Any one of them could put you out of business for if they decide to. Any businessman will if fined $1000, pay it without question. As so elegantly put by the BC Safety Authority, ‘our activities are not governed by the Charter of Rights and Freedoms’.
The strategy is to stay below the radar, not make noise, keep them happy, and make sure it would be expensive for them to do anything against you.
Mr. Lemire has been subjected to a > 5 year prosecution based on the whims and prejudices of one man who worked for a government agency. I’ve run into individuals like that within the various governing authorities that I work under. Usually, either through political pressure or the agency itself slapping down the fool, they moderate in their actions after a while.
But this situation illustrates the danger that every canadian faces from an unaccountable civil service.
Derek
September 5th, 2009 at 11:41 am
The Taylor decision of 1990 was a 5/4 decision.
The current Supreme Court is composed of 3 Jews, one of whom is married to the former head of the CJC. (Abella)
Plus one Justice who is married to a Jew.(DesChamps).
Plus one Justice who assisted the railroading of Zundel (Binnie)
Since these laws are uniformly supported by Official Jews, those who believe the Supreme Court will overturn Sec 13 are going to be disappointed. After all, this current Supreme Court holds that it is fair comment to call Kari Simpson a Nazi, when she is clearly not a Nazi, but not fair comment to call Warman a censor, when he clearly is a censor.
September 5th, 2009 at 12:21 pm
Lazar, your comment is possibly the most offensive comment I have ever permitted on this blog. The idea that Supreme Court Justices (or, frankly, Justices of any Court in Canada) would rule in a free speech matter, or any other matter, on the basis of the party line of “Official Jews” is supported by no evidence whatsoever.
Frankly, it is comments like yours which try my own commitment to free speech. Because that commitment means that hateful idiots hiding behind aliases have a right to speak. Mores the pity.
I console myself with the happy thought that you may simply be a CHRC shill trying to provoke anti-Semitic statements on a blog which has a long and well recorded history of philo-Semitism and pro-Zionism.
In either case, piss off and don’t bother posting this muck here again. Because, as it is my blog we get to play by my rules. You want to run these sorts of arguments, get your own blog.
September 5th, 2009 at 3:11 pm
Lazar: For your information, to my knowledge the Supreme court hasn’t ruled whether calling Warman a censor is illegal.
I think though the Province of British Columbia enacted a law to prevent Warman from suing libraries.
Odd that. There are few individuals in Canadian history that have rule changing jurisprudence done in their name. Often they are despised as individuals, but praised for the perseverance required to establish a right. Warman may be the other way around for the majority of Canadians.
Derek
September 5th, 2009 at 5:49 pm
Lazar Kaganovich, you’ve won…You are the very first person I have ever tossed in the spam bucket. As I said, go get your own blog. You will not be posted here.
Update: nor will whichever alias, Ghenrick Yagoda, you chose to post under. I am now pretty sure you could be a CHRC plant. Not that it matters because I don’t post the sort of anti-semitic crap you are sending. Again, go set up your own blog and keep your demented ravings from polluting my inbox.
And, now, under your new alias you have joined my spam list.
62.33.12.24
phentermine
Anal sex
Propecia
cialis
viagra
24.17.156.49 (Yup, that’s you…and in present company you really do look like a big dick, chocolate dipped. Now piss off.)
September 5th, 2009 at 9:07 pm
Jay,
That you refer to estoppel as an “obsure doctrine” goes a long way to explaining why you didn’t make it in the Your attempt to link up the “shield not a sword” line with some bizarre exercise in reading the mind of Hadjis cover the rest of the distance.
Hadjis’s decision is a considered and thoughtful analysis of the interplay of s. 13 and s. 54. While he could have “read out” s. 54, that remedy is typically used only when the particular circumstances of the case result in an unjustifiable breach of the Charter; in his analysis, the breach was part of the structure of the legislation, not in the circumstances of the party whose rights were breached.
At the end of the day, however, Hadjis is just a single tribunal member. His reasons are only persuasive, not binding on anyone, including other members of the CHRT. Add to that the fact that the CHRC has already proposed repeal of s. 54 and its hard not to conclude there’s a whole lot of crowing about not much. (The fact that the crowing is coming from folks like Steyn, whose last foray into legal coverage involved him passing through Conrad Black’s sphincter during the later’s unsuccessful defence on criminal charges, and Levant, whose regular distortions of the law have earned him multiple complaint to the Law Society of Alberta, is telling.)
For all the fuss, Hadjis is a sideshow; this is matter to be resolved by Parliament, ideally sooner rather than later. Given that the repeal of s. 54 is endorsed expressly by the CHRC and implicitly by Hadjis’s reason, and that the Reformatories are probably unwilling to align themselves with Lemire, Fromm and all the other creeps who are directly affected by s. 13, my guess is that s. 54 goes down long before s. 13 does. Of course, there may be some interesting discussion about s. 13 along the way. I suspect, however, that the enthusiasm for its repeal will narrow somewhat when it become clear that, far from punishing speech that is merely “offensive”, it has been used to address the most extreme and hateful expression.
BTW,
Hope you’re enjoying your new company.
September 5th, 2009 at 9:12 pm
“I am now pretty sure you could be a CHRC plant.”
Further proof that denial ain’t just a river in Egypt.
September 5th, 2009 at 9:20 pm
I was wondering if you were at the cottage or something tw. Just for fun, any idea how those complaints against Ezra have been faring at the Law Society of Alberta? Here’s a hint: about the time that Warman arrives for Kathy and Arnie’s chattels, (see Hadjis’ discussion of Klatt) Ezra will be sanctioned by the LSA.
Now try reading my post again and see if you can catch the drift. It isn’t difficult. Just remember “remediation”, “conciliation” vs. “get those low life Nazi basement dwelling pricks”. Work with me here tw.
September 6th, 2009 at 12:48 am
Here’s the thing, TW, anything of any value you contribute is completely lost in the acid verbiage you wrap your comments up in. Fortunately, Jay puts commenter’s names up top enabling readers to skip your whining (or read it for amusement, should the mood strike).
Your personality comes through like a harridan on meth… it ain’t pretty.
September 6th, 2009 at 4:05 am
I love the smell of irony in the morning.
Here’s the thing, TW, anything of any value you contribute is completely lost in the acid verbiage you wrap your comments up in.
Then:
Your personality comes through like a harridan on meth… it ain’t pretty.
More, please. Love this stuff.
September 6th, 2009 at 5:20 am
Jay,
Hadjis’s view of Klatt’s credibility is entirely irrelevant to the libel matter. There is no defence of “reasonable belief” in defamation; if you plead justification, you have to prove that what you wrote was substantially true or you lose. And if you plead that the impugned post was a fair and accurate report of the proceedings, it wouldn’t matter that Klatt was later found to be entirely without credibility. But the post Warman complained of weren’t fair and accurate reports; they accepted Klatt’s testimony and stated that Warman had made the Cools post. As for Levant, while those complaints may not lead to sanction, they aren’t trivial or vexatious. Levant has repeatedly misrepresented the law and the legal process, and he’s a serial defamer. Not the sort of conduct you like to see from an officer of the court. (Or as you would have it Officer of the Court)
I get your general drift; you seem to think that the law is unconstitutional unless complainants are forced to sit down and sing Kumbaya with defendants. Not so. Hadjis noted that the AG argued that “any potential error committed by the administrative authorities to whom s. 13’s application has been entrusted, cannot have any bearing in the analysis of the provision’s constitutionality. The error is not a necessary effect of the impugned legislation” That is an accurate statement of the law.
DaninVan,
Here’s the real thing. I don’t care if you read my posts or whether you like me or my tone. I’ve yet to see you make a thoughtful or even substantive comment here. What you do post seems uniformly clueless.
Have a nice day.
September 6th, 2009 at 7:50 am
Stow the brickbats.
I always look forward to Reading and considering TRUEWEST’S perambulations.
A refreshing change from the barnyard ignorance over at FD or the blind obduracy over at Dawg’s Blawg.
It gives one hope for humanity.
September 6th, 2009 at 1:07 pm
Don’t listen to Abrams. He plays the accordion.
September 6th, 2009 at 1:30 pm
Well there ya go. See? The difference is, I know when I’m being a twit, you on the other hand TW, don’t know or care that you are.
Jay responds to your abrasive commentary with grace and courtesy; none of that “my learned friend” twaddle from Camp TW…:)
Dr. Dawg, on the other hand, manages to maintain a certain level of friendly rivalry whilst fencing! It takes some provoking to bring out the ad hominems.
Hell, I’ve even agreed with the Dawgster, on occasion.
September 6th, 2009 at 1:40 pm
“It is therefore appropriate to modify the “honest belief” element of the fair comment defence so that the test, as modified, consists of the following elements: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts? Even though the comment satisfies the objective test of honest belief, the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice. The defendant must prove the four elements of the defence before the onus switches back to the plaintiff to establish malice. mair v simpson
I am not privy to the defence strategy(s) which will be deployed by the Canada 5 in the event this makes it to Court. However I have to bet that the claim of fair comment will be one of them. Klatt’s credibility is important as it is his statement as to the Cools post which the various defendents commented upon.
And, actually, I think you missed my point. Enforced Kumbaya singing would not save s. 13 any more than eliminating the penalty clause; my point is that as soon as the Commission changed from the agency of reconciliation and remediation which Dickson took it to be in Taylor to a prosecutorial adversarial agency out to maximally disrupt the “haters” s. 13 ceased to be constitutional. Or, to be more precise, it ceased to be minimally infringing and, in my view would no longer be saved by s.1 of the Charter.
September 6th, 2009 at 2:32 pm
Uh, Jay, as I said, “honest belief” isn’t a defence – it’s one of four elements in the fair commment defence. Unfortunately for the Bonehead 5, another required element is b) the comment must be based on proven facts. Since Warman’s claim is based on the allegation that he made the Cools post, that means that the Boneheads have to prove that he did in order to avail themselves of the defence of fair comment. (I realize that some of them have claimed that they expressed the opinion that Warman made the post, but there’s a whiff of desperation in that pleading. While courts have commented on the sometimes blurry line between fact and opinion, I don’t think the line is particularly blurry in this case.)
Got any other bright ideas?
DaninVan,
Do you have anything to add to this discussion or do you just like typing?
September 6th, 2009 at 2:35 pm
‘Stow the brickbats.’... ‘barnyard ignorance over at FD’
Harry v. Ezra
barnyard ignorants…
September 6th, 2009 at 3:01 pm
The Complainant can now add a ‘loss of traditional income’ component when butting heads with the ‘Bonehead 5’...
September 6th, 2009 at 3:03 pm
tw, as I recall in every case the “comment” was one of disapproval that such a post was made by a person who Klatt testified was Richard Warman. Thus, to a very large degree, the fact in issue was supplied by an expert witness in sworn testimony which has just been pronounced very credible by the Member who heard it.
And, I note, that so far as proven facts go it is no longer in dispute that Warman posted under a variety of aliases. Those are proven facts and Klatt’s testimony is another proven fact. The Canada-5 had strong opinions about the use of aliases to post hateful material and those opinions extended to the material Klatt testified Warman had posted.
Was Klatt wrong? Maybe. Though Warman apparently looked rather relieved when the ISP guy said the relevant records were lost. And, again working from memory, as soon as access was granted to the ISP records but before their loss was revealed, the section of the complaint focusing on the Cools post was dropped.
Klatt’s credibility is important in this context and it was endorsed by Hadjis “The expert evidence of Mr. Klatt was not contradicted by any other evidence led at the hearing. In fact, neither the Commission nor Mr. Warman called any expert in respect of the Internet or computers to testify. I found Mr. Klatt’s testimony to be very credible.” warman v. lemire 38
September 6th, 2009 at 3:36 pm
You can keep tap-dancing, Jay, but when you write a sentence as tortured as “as I recall, in every cse the “comment” was one of disapproval that such a post was made by a person who Klatt testified was Richard Warman,” it’s pretty clear that you’re trying to avoid the truth.
In any event, your recollection is wrong. According to the Statement of Claim, which was helpfully archived by Ezra Bonehead, Warman is suing on posts that include the following allegations:
Mark and Connie Bonehead wrote “Is Richard Warman a racist bigot or was he just following orders from his master [at the CHRC] when he posted the headlined message above [i.e. the Cools post]
Five Feet of Bonehead republished the Mark and Connie Bonehead post on her own site and linked to it on Kate Bonehead’s site.
Ezra Bonehead, for his part, wrote “it turns out the Warman himself writes those hateful words, including calling Senator Anne Cools a “n*gger” and a “c*unt” and then complaining about it”. Ezra Bonehead has, I believe, continued to repeat this allegation frequently since that post.
Of all the Boneheads, only Jonathan Bonehead, writing in the Bonehead Post, took care to couch the allegation in terms that may provide the paper with some defence, by sayoing no more than that Klatt made the allegation in giving evidence before the CHRT. I assume that’s because the Post’s lawyers told him to write it that way.
Incidentally, the fact that Hadjis found Klatt credible is irrelevant to a defence of fair comment. For obvious reasons, you can’t base a fair comment defence on facts, such as Hadjis’s finding, that didn’t occur until after you made the comment.
BTW, how do you know “Warman looked relieved”. Were you there? Or did some little Bonehead whisper that in your ear?
September 6th, 2009 at 3:45 pm
That’s a lot of “boneheads” there tw. I might almost think I was reading ARC.
Your analysis of Warman’s Statement of Claim is interesting but, of course, begs the question of whether the defendants relied upon the testimony of the credible Klatt.
And Hadjis subsequent finding simply re-enforces the fact that Klatt’s testimony was as credible as the defendants took it to be.
There were, as you know, more than one person in the room when the ISP guy testified. And, as you also know, when it became clear the ISP guy was going to testify the Cools section of the complaint was dropped. Curious people would just love to know why as it was clearly the strongest element.
September 6th, 2009 at 4:05 pm
does he know the true provenance of the post that wasn’t worthy of inclusion as an example of hate speech…?
September 6th, 2009 at 4:35 pm
No, Jay, it doesn’t beg the question of whether the Boneheads relied on the testimony of Klatt, credible or not. Their reliance is entirely irrelevant. Its irrelevant because Boneheads (other than Kay) didn’t just write “Bernie Klatt testified that Richard Warman made the Cools post”, which is a) a true statement of fact and b) an accurate report of the proceedings. They wrote , “Richard Warman made the Cools post”, a statement that Warman says is not true. It now falls to the defendants to prove that particular statement is true—proving that Warman made other posts does not get them there—if they want to establish the defence of justification or fair comment. And for all your tap-dancing and theirs, I don’t think they can do it.
Everything else is B.S. including your speculation about the expression on Warman’s face (the source of which, I presume, is some basement Nazi).
BTW, as I’ve said before, the folks at ARC are more honest and provide more accurate information than about 90 percent of the people you link to.
September 6th, 2009 at 4:40 pm
Then, tw, I would assume that Warman is moving Heaven and Earth to provide the required document discovery so he can get this slam dunk before a judge.
(And, tw, are you sure that the dropping of the Cools section of the complaint is BS?)
September 6th, 2009 at 4:51 pm
Oh, one other thing, tw, nbob commenting over at Brock’s site, observed the following:
“For a layman – if the underlying fact was stated by an independent expert who’s evidence had been accepted by courts and tribunals then his belief would be reasonable; if the fact was stated by an independent expert who’s evidence had been rejected or, perhaps by a partisan witness who’s evidence was accepted then his belief is closer to reckless but still probably on the side of reasonable; if the fact was stated by a partisan who’s evidence was rejected (as is the case with Klatt) then his belief has probably crossed the line into reckless and the defense will fail.”
Which is why Hadjis’ remarks on Klatt’s credibility may turn out to be very important. The general view of Klatt is well set out by nbob,and it is systematically refuted by Hadjis.
September 6th, 2009 at 4:57 pm
Sure looks like they dropped the Cools post from the complaint to me. And in the words of the judge:
http://www.richardwarman.com/transcripts/2007-01-Marc_Lemire/2007-02-07_-_CHRT.pdf
Page 1414 Judge Hadjis speaking:
9 To begin with, until the hearing,
10 Mr. Warman and the Commission had held out that all
11 pages on the Freedomsite message board were in breach
12 of section 13 of the Act, which would have included the
13 September 5th, 2003 message. [COOLS POSTING]
19 Nevertheless, the Commission and the
20 complainant made their declaration pursuant to a direct
21 order from the Tribunal to specify exactly which
22 messages they allege constituted discriminatory
23 practice.
24 Ms Kulaszka now argues that the last
25 minute refinement of Mr. Warman—by Mr. Warman and
1 the Commission of their positions, which has the result
2 of excluding from their evidence a discriminatory
3 message that she contends was placed on the
4 respondent’s website by the complainant himself,
5 constitutes an abuse of process.
6 She also alleges that in a larger
7 sense, establishing whether Mr. Warman, a human rights
8 complainant, managed to post a discriminatory message
9 on the respondent’s website, is relevant to the
10 constitutional defence that she has raised. She
11 contends that the possibility that a complainant can
12 himself post a discriminatory message on a web page, on
13 the basis of which its webmaster may be held liable
14 under Section 13, brings into question the
15 constitutional validity of this provision.
September 6th, 2009 at 5:15 pm
Thanks Yacob…I was just poking around for that.
September 6th, 2009 at 5:35 pm
I can’t tell what defence nbob is talking about from the fragment you posted. Perhaps you can post a link.
Nor do I know of any dispute about document disclosure in the Bonehead 5 action. You seem to think that you do, although you’re being awful coy about it. Do tell. That said, it is not uncommon for parties to an action to be at odds over the scope of document production required. In Ontario and soon in BC, fishing expeditions are on the way out as the scope of relevance has been narrowed.
September 6th, 2009 at 5:42 pm
Yacob,
Those aren’t really the words of the judge. It’s the judge’s paraphrase of Lemire’s lawyer’s submissions. There is a difference.
In any case, what Hadjis is actually saying is that Warman initially complained about all the posts on the bulletin board but when the Tribunal insisted he specify particular posts, he did not include the Cools post among those he proceeded on. That’s quite different from the characterization of what happened that has been promulgated by the Boneheads and their supporters; i.e., that Warman specifically dropped the Cools post when he was accused of making it. Not that I find that surprising; as Prof. Moon noted, these folks are quite happy to make stuff up.
September 6th, 2009 at 5:45 pm
Link posted, tw.
September 6th, 2009 at 6:40 pm
Jay-
It’s my recollection that the Cools post was dropped from the proceedings along with a number of others. Initially, Mr. Warman and the CHRC’s case was supposed to include every post ever made on Freedomsite, then on or near the first day of the hearing, they decided to exclude posts, including but not limited to the Cools post. Thus, the exact reason for excluding the Cools post is somewhat a matter of dispute, with Mr. Lemire and others claiming it was because of its alleged authorship, and Warman supporters claiming it was for less sinister reasons.
September 6th, 2009 at 8:35 pm
Cinyc,
From the transcript that Yacob linked to, it appears the the Tribunal ordered them to specify which posts they were complaining about. I see, however, there are those that claim that Warman and the CHRC
Jay,
That’s a very old post. In fact, it predates WIC v. Simpson, which revised the law on honest belief. However, contrary to nbob’s post, the law revised never held that a defendant could make out a defence of fair comment if he had an honest belief in the truth of the underlying facts. Rather, it required that he have a subjective honest belief in the opinions expressed or risk having the defence rejected on the grounds that the opinion was expressed maliciously. In the Simpson case, the SCC changed that to an objective belief: could any reasonable person hold the opinion, even if the defendant didn’t.
.
September 7th, 2009 at 10:26 pm
tw-
Except that’s not what exactly happened until the last minute. Intially, Mr. Warman and the CHRC “produced over 133 pages of messages” without specifying their exact theory of the case. On August 16, 2006, CHRT Member Hadjis ruled that Mr. Warman and the CHRC must indicate explicitly whether they thought “each message found on each of the disclosed pages constitute[d] a hate message” or if only some did. In response, the “Commission and Mr. Warman . . . explicitly stated that in their opinion, the entire freedomsite.org website constitute[d] matter that is in violation of s. 13 of the Act”. Mr. Lemire didn’t think that was in accordance with Member Hadjis’ August 16 ruling and raised the issue again. On December 6, 2006, Member Hadjis ruled that that was in accordance with his August 16 ruling, but “if the Commission and Mr. Warman believe[d] in good faith that only a number of the messages in the disclosed pages [were] in violation of the Act, then they should be forthright in declaring and detailing their positions to the other party.”
As the transcript posted by Yacob H shows, the CHRC and Mr. Warman ultimately waited until shortly before the first day of the hearing to change their theory of the case again to only apply to particular messages, curiously excluding the Cools post. Pro-Lemire folks have pointed out that the Cools post was arguably more in violation of Section 13(1) than other posts that the CHRC and Mr. Warman claimed violated that section but kept in the case. Dropping it from the complaint was, at a minimum, very odd.
September 7th, 2009 at 10:28 pm
cinyc,
Very.
One might almost think providential.
September 7th, 2009 at 10:58 pm
Jay-
Actually, I got my opinions mixed up while cutting and pasting. Member Hadjis statement that “if the Commission and Mr. Warman believe[d] in good faith that only a number of the messages in the disclosed pages [were] in violation of the Act, then they should be forthright in declaring and detailing their positions to the other party” came from the AUGUST ruling, not the December one – which makes their subsequent refining of the case even more odd.
September 7th, 2009 at 11:02 pm
cinyc, it is also an illustration of the gross procedural irregularity which characterizes the hearings of the Tribunal. Imagine that you were facing criminal charges: the police make the claim that you robbed ten jewelery stores but then, a day before trial, drop all but three having provided no disclosure. Have you been prejudiced? How could you be expected to prepare your case? (And, for fun, lets pretend that the police robbed one of them just to see if they could hang it on you. But when you asked for the video camera records, they dropped the charge…does something smell there?)
September 8th, 2009 at 11:07 am
Jay:
Good post, though it has somehow gotten lost in all the back and forth since.
The Boissoin V. Lund case next week in Alberta Court of Queens Bench should provide some understanding of how a real court will deal with the constitutionality of S.13 and its ugly fraternal twin sister in Alberta S.3(1).
It has amazed me that no court has ever dealt with the real meaning of the statistical word Likely in “Likely to expose to hatred and contempt”. That is a word that deals in statistical probabilities and requires more understanding than just an “oh, well”, as it always gets. Only one case in BC ever even tried to given it meaning and there it was way off the mark.
How do you know somebody has been exposed to hatred and contempt? What are the signs of that exposition? Hatred can be measured in brain waves, by the way. How do you measure it? Do you measure the haters or the hatees? If you can’t or didn’t in the particular case, answer those questions, then you can’t convict somebody of exposing a group to hatred or contempt, in my opinion.
In both Lemire and Boissoin, the HRCs took so long that they could have seen actually if the alleged decadent published materials had in fact had an impact on exposing targeted groups to hatred and contempt, or if in fact, as one would suspect it was same old, same old.
Boissoin will also argue that the Alberta HRC is ultra vires their legislation regarding their handling of the case, and one could have raised the same argument with Lemire as well.
October 6th, 2009 at 4:23 pm
The sword-and-shield analysis is interesting but it is usually used in the substantive context of contrasting what is actionable to what can be relied upon as an affirmative defence, such as the difference between proving a binding contract and defending a breach of contract claim based on waiver or estoppel.
With the CHRA and CHRC it gets a bit more crazy. The CHRA was supposed to be remedial to stop people from doing discriminatory things, and limiting itself to compensating them for their loss and ensuring the same thing doesn’t happen again. The farcical awards of damages for hurt feelings and the ridiculous costs awards (which as far as I can tell, are not explicitly authorized by the CHRA) started us down that highway paved with good intentions.
Jay, I think you nailed it on the head when you point out that the CHRC as an organization made a transition to hunt down the haters. They are not supposed to be a completely passive organization, but rather they were supposed to do research and deliver reports to parliament and such. Instead, they became the Fearless Vampire Killers, and like with many a Polanski production, they made their own cameos by playing Nazis who posted on the forums of their targets.
The introduction of the penalty provisions is far more controversial, and the CHRC, CJC, “rights” boneheads have all but conceded they can’t pass constitutional muster, so they want the penalties to be ignored while leaving in the life-time gag orders.
There is a legal line drawn between “penalties” and “fines”: a penalty is imposed for technical violations of, and to encourage compliance with, an administrative regime; a fine is imposed for committing an offence under the administrative regime. The latter engages the procedural protections under section 11 of the Charter – y’know, such niceties as no unreasonable delays, the right to silence, the presumption of innocence, and a public hearing.
The best examples are found in tax law where you can be subject to late-filing penalties, and fines for offences such as interfering with a tax official. Some offenses can draw up to 2 years in jail, at which point they are effectively criminal prosecutions.
Of course, criminal convictions have to be proved beyond a reasonable doubt, and generally have to have a mens rea element. But intentions have, by one theory, nothing to do with hate speech under the CHRA: either a posting is likely to expose someone to hate or it is not, and the authors intention (other than what is explicitly or implicitly written into the post itself) is irrelevant.
October 6th, 2009 at 4:27 pm
mbrandon, what is silly about the “likely to expose” standard is that the civil standard of proof is used. One formulation of that standards is that the plaintiff is “more likely than not” to be correct. So what these tribunal members are purporting to do is determine if it is more likely than not that it is likely that someone (no one in particular, somewhere, out there) will be exposed to hatred or contempt. This is where the “pre-crime” rhetoric comes from. People get punished for posting something that is “likely to be likely” to be allegedly harmful without requiring proof that anyone anywhere has actually been harmed.