Brazening it out
Over at Free Dominion, Harry Abrams has just posted:
Abrams and BBC v. Topham and Radical Press – Position of the CommissionDear Tribunal and Parties,
We write further to the correspondence that has been exchanged by the parties in regards to the impact of the Warman v Lemire decision recently rendered by the Tribunal.
It is the position of the Commission submits that the Tribunal should proceed on hearing the matter pending before it in the present case. Consequently, the matter should neither be adjourned sine die or simply dismissed.
In Warman v. Lemire, the Tribunal found that the penalty provision in s. 54(1)(c) was not a reasonable limit on freedom of expression under the Charter. In the instant case, the Commission will no longer be seeking a penalty under 54(1)(c) of the Act as was originally included in its Statement of Particulars. The Commission therefore respectfully submits that the Tribunal ought to proceed with a hearing of the Complaint to determine if section 13 has been infringed, and if so, to exercise its discretion under s. 54(1)(a).
Yours truly,
Daniel Poulin
Legal Counsel
Canadian Human Rights Commission free dominion
What strikes me as interesting here is that the CHRC seems to take the position that Hadjis’s decision in Lemire was strictly with respect to the unconstitutionality of s. 54(1)(c). Certainly Hadjis’ words can be construed in that manner:
However, I have also concluded that s. 13(1) in conjunction with ss. 54(1) and (1.1) are inconsistent with s. 2(b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit within the meaning of s. 1 of the Charter. Lemire
Whether that is what Hadjis actually meant is a whole other question. His analysis of Taylor turns on the remedial and conciliatory assumption made by Dickson in Taylor. As I wrote earlier, the Warmanization of the Commission, its transformation into a prosecutorial entity when it came to “hate speech” cases, lies at the root of Hadjis decision.
But what is equally interesting here is that the Commission seems to be signaling that it will not appeal Lemire but rather try to brazen it out in Topham.
Which will be interesting as Topham and the intervenors are like to raise the constitutional issue at every turn.
——-
I posted this over at Freedo:
“Now, as I recall, there is an application to dismiss before the Tribunal. Which, normally (and normal is not a trait of the ‘roos) would have to be decided prior to the commencement of any hearing.Topham, Abrams and BB, Christie as an intervenor and now the Commission have stated their positions.
Now I suspect the Tribunal will have to state its.”
The very fact of a hearing after Lemire raises a constitutional question. After all, if as Hadjis ruled, the saving of s. 13 in Taylor no longer is valid then it is open to one of the parties to assert that the Tribunal lacks jurisdiction to hear a s. 13 complaint. I am not saying they would win before the Tribunal; but I suspect the Tribunal would have to make a ruling on the question before proceeding to the Hearing stage.
——-
Let’s take a little gander at the Act:
54. (1) If a member or panel finds that a complaint related to a discriminatory practice described in section 13 is substantiated, the member or panel may make only one or more of the following orders:(a) an order containing terms referred to in paragraph 53(2)(a);
(b) an order under subsection 53(3) to compensate a victim specifically identified in the communication that constituted the discriminatory practice; and
(c) an order to pay a penalty of not more than ten thousand dollars.
And, of course, 53(2)(a)
(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;
Now it is lovely that the Commission counsel is willing to forebear on 54(1)(c) however those penalties are imposed by the Tribunal where that Tribunal considers them “appropriate.
That the Commission and, for all I know, Harry and BB, are not seeking these penalties does not make Topham any the less liable to them if the Tribunal makes an order to that effect. Nothing in the Act says that the Commission or a party may pick and choose as between the remedies sought.
And here is the problem: s. 13(1) and s. 54 of the Act are a complete legislative scheme which incorporate, by reference, the penalties available to the Tribunal per s. 53. Commission counsel cannot tell the Tribunal not to use the more penal elements of s. 54. He can ask, but his ask does not remove Topham’s unconstitutional potential liability.
(And, indeed, I would argue stripping a Canadian citizen of his or her s. 2 right to free expression and all Canadians of the s. 2 right to a free press by way of a cease and desist order, is, in itself penal.)
blazing is all over this, ezra is suggesting after the CHRC are all fired they all be sued and that, with two days to go, the DOJ and the CHRC should not appeal…he says mean things about Lucy too.
September 30th, 2009 at 4:14 pm
This may be the best we could hope for short of an appeal, I suspect you are right Topham et al will raise the constitutionality issue at every turn.
September 30th, 2009 at 4:18 pm
Well, in his own round about way, he already has raised it by asking the Tribunal, more or less, to dismiss the complaint on constitutional grounds.
September 30th, 2009 at 4:45 pm
The CHRC is well on it’s way to make another figure most people likely had never heard of (nor feel the desire to read) into another warrior for fre speech.
well, if that is their wish, let the chips fall where they may – and without their personal Section 54 woodchipper to feed people into. :)
September 30th, 2009 at 4:56 pm
‘Forward, the Human Rights Brigade!’
Was there a man dismay’d ?
Not tho’ Harry Abrams knew
Some one had blunder’d:
Theirs not to make reply,
Theirs not to reason why,
Theirs but to wail & sigh,
Into the tribunal test
Rode the six million.
– apologies to Alfred, Lord Tennyson, and Common Sense (R.I.P.) -
October 1st, 2009 at 5:17 am
Harry Abrams also posted [” there is indeed a discretionary penalty available for retaliation. And we have asked for this to be considered. Retaliation was not an issue in Lemire.” ]
Defending Oneself = Retaliation?
A new donkey to ride for the CHRC.
Pin the tail, anyone ?
October 1st, 2009 at 6:16 am
I suspect the complainant’s goal is total censorship and complete compliance with their wishes to remove what ever they “DEEM” offensive to Canada’s official Jews? I hope the respondant drags the CHRC tribunal into appeals court, it’s business as usual apparently they’ve learned nothing from the anger hurled at them via the court of public opinion.
Retailiation; Isn’t that what the CHRC section 13 is about?
October 1st, 2009 at 6:42 am
Pointing out that Abrams cheese has slid off his cracker is “retaliation”? Oh, right, keep forgetting that the truth is no defense.
snort
October 1st, 2009 at 7:01 am
Into the tribunal test
Rode the six million.
Six million, eh? Wow.
October 1st, 2009 at 8:34 am
Yup – as I said before Sean – under the thin Veneer of congeniality and claims of neutrality and civilization – lies a true CHRC Censor/warrior at heart. Hypothetically, of course.
You can change the Jacket, Rubber boots and put different Mitts on – but you cannot change the Heart and Mind of one so determined. I calls dem “Ideologs”. Good fodder for da Free Speech Wood-chipper :)
Ezra’s post describes the situation perfectly – they slip further and further into an Alligator filled pond they tried to drain using straws (Strawmen/enemies).
October 1st, 2009 at 8:44 am
Arther Topham (whom I’ve always thought was loopy and gave little credibility) has just become the latest victim of HRC cult bullying. He becomes the new poster kid for free speech.
Instant credibility for a less than credible specious crank. How to go S13 dopes you made another martyr with your petty censoring.
October 1st, 2009 at 12:18 pm
Jenny was NOT AMUSED:
01/10/2009
Judicial Review Application in the Warman v. Lemire case
Judicial Review Application
Warman v. Lemire
On Thursday, October 1, 2009, the Canadian Human Rights Commission applied for Judicial Review of the Canadian Human Rights Tribunal’s decision in the Warman v. Lemire case before the Federal Court.
The Commission applied for Judicial Review so that technical but important legal issues raised by the decision can be clarified. These issues go beyond this particular case and could have an impact on other administrative tribunals. As a result, the uncertainty created by the decision is not in the public interest and merits a binding decision by a higher court.
The application is based on two grounds. It is the Commission’s view that:
1.The Tribunal erred in law when it found that the manner by which the applicant exercises its statutory mandate could render section 13 of the Canadian Human Rights Act unconstitutional; and
2.The Tribunal’s findings of unconstitutionality also resulted from the adoption of subsections 54(1)(c) and (1.1) of the Canadian Human Rights Act, subsequent to the Supreme Court of Canada’ s decision in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. The Tribunal erred in law when it refused to apply section 13 of the Act because a refusal to apply subsections 54(1)(c) and (1.1) would have provided a sufficient remedy in respect of this ground.
The Commission endorses the Tribunal’s narrow interpretation of section 13, which is consistent with the Supreme Court and Tribunal’s jurisprudence as well as with the Commission’s 2009 Special Report to Parliament. The Commission accepts the Tribunal’s finding that the penalty clause is unconstitutional. In fact, the Commission itself has recommended that this provision be repealed in its Special Report to Parliament.
The Commission is a servant of Parliament and considers that Parliament’s statutes must be applied unless they are found to be unconstitutional. In this case, it is the Commission’s view that the Tribunal went too far in refusing to apply section 13 in its entirety when the constitutional concern could be remedied by refusing to apply the penalty clause in 54(1)(c).
October 1st, 2009 at 1:46 pm
I applaud the Canadian Human Rights Commission’s decision to make Section 13 an election issue.
It is what was necessary to break up the parliamentary log-jam by forcing the various political parties to take a clear stand on some issue of over-riding importance.
The bedrock ideological commitment the various parties must now espouse, and the public support which such commitment will draw, will determine to course of Canada’s future.
Previous elections were tainted by inference of ‘hidden agenda’, so much so that a confused electorate had retreated to the safety of minority government.
The current PM, Stephen Harper, has long overcome the ‘distrust’ many folks had for his leadership, which itself flowed from innuendo rather then fact.
Where once it was common to hear folks say they ‘didn’t trust the man’, the same folks now express a belief that he has proven, and over time, to be a capable and forthright figurehead who has done equally well domestically and on the world stage.
CHRC/T abuses have come to full fruition under the former Liberal majority and the minority Liberal and CPC governments which have guided Canada since.
Where one would expect that longstanding parliamentary tradition would have seen an effective ‘Loyal Opposition’ fighting tooth and nail against impingement upon freedom of speech, there has been little more than a whimper – and even then by back benchers rather than the comic carousel of Liberal leadership put up since ‘adscam’ went down.
The CPC has forced ‘the public’ to take up the chalice of freedom, albeit at the risk of alienating a vocal segment of the conservative support base, and citizens of this great nation are finally shaking free of the ‘nanny-state’ mentality so insidiously inculcated into the Canadian psyche.
October 1st, 2009 at 7:26 pm
again and again and again….the nebbish and his ilk are picking the soft targets…the time warp soft targets….
as you all well know there are no nasties worth gunning up for…
today’s real enemy of the Jews are islamists..of the fundamentalist variety….
like i say…the nebbish is simply an attention seeker…he wants his name in the funny papers..or a plaque from bnaibrith…
but he seems unnable to confront the quotidian spew of muslim fundamentalists…why IS that ?
October 3rd, 2009 at 2:08 pm
but he seems unnable to confront the quotidian spew of muslim fundamentalists…why IS that? – Mr. Begley
John,
“Fundamentalists” of the world deliver bombs. “Soft targets” of the CHRC deliver money.