Keep Hope Alive CJC Edition
“This was a decision by a single member of the Canadian Human Rights Tribunal. We should recall that there have been two previous decisions by the Tribunal that rejected the constitutional challenges to s. 13. In order to clarify the law, we strongly urge the Canadian Human Rights Commission and Mr. Warman to appeal this decision,” CJC CEO Bernie Farber said.” cjc
Having had their boy’s teeth kicked in the CJC wants Lucy and the coward Lynch to appeal.
So do I because s. 13 and Taylor are not dead enough. While it is difficult to see how, in practice, s.13 can be used, the fact is that using the doctrine of “reading out” s. 54 doubtful constitutional status can be ignored in future cases. Especially where the complainant is not seeking a penalty other than “cease and desist”.
As I have written before, the McLachlin SCC is not the Dickson SCC and there is every reason to believe that Hadjis’ finding that,
In my view, it is clear that Taylor’s confidence that the human rights process under the Act merely serves to prevent discrimination and compensate victims hinged on the absence of any penal provision akin to the one now found at s. 54(1)(c), as well as on the belief that the process itself was not only structured, but actually functioned in as conciliatory a manner as possible. The evidence before me demonstrates that the situation is not as the Court contemplated in both respects. Thus, following the reasoning of Justice Dickson, at 933,one can no longer say that the absence of intent in s. 13(1) “raises no problem of minimal impairment” and “does not impinge so deleteriously upon the s. 2(b) freedom of expression so as to make intolerable” the provision’s existence in a free and democratic society. On this basis, I find that the Oakes minimum impairment test has not been satisfied, and that s. 13(1) goes beyond what can be defended as a reasonable limit on free expression under s. 1 of the Charter. (my emphasis) warman v. lemire
The reasoning in Taylor was, frankly, mushy. There was an assumption of remediation and good faith on the part of the Commission and, by extension, the complainants whose cases the Commission took to the Tribunal. As Hadjis observes, neither of those values is present in the current, corrupt system.
Silencing the publication of political speech, the removal of both freedom of expression and freedom of the press should not be within the power (or whim) of a mere Tribunal. An appeal would afford the SCC the opportunity to revisit and distinguish Taylor.
It would, however, place a huge and entirely unfair burden upon Marc Lemire as has this entire, corrupt, process. It is not obvious what the solution for that is or should be. But a solution should be worked out.
[Of course the right solution would be a) to pay Lemire’s costs to date, b) pass the six line bill which would repeal s. 13, c) appoint a judge to conduct a judicial inquiry into all prior complaints and the tactics used by the Commission and its ex-employee Richard Warman. But I am not counting on the Harper CPC having the balls to do anything that courageous.]
Update: “To be on the safe side, therefore, I will make an Order along the lines requested by Mr. Warman under s. 54 (1) (a) of the Act. If the Respondents do not engage in the impugned conduct again in the future, they will have nothing to fear from such an Order. In view of the ruling by the Chairperson of the Tribunal, Mr. J. Grant Sinclair, referred to earlier in this Decision, this Order will not be issued until a final determination by the Courts of the constitutional question in the Lemire case. warman v. ouwendyk”
As I never tire of pointing out, the Tribunal is not a Court, so what the heck happens Ouwendyk?
Update 2: My pal Alan who is an actual practicing lawyer who deals with tribunals and administrative law and all that cool stuff has nailed the legals on Lemire.
September 2nd, 2009 at 1:55 pm
Jay, you might be interested in this comment I posted at SDA.
September 2nd, 2009 at 3:41 pm
The decision was narrowly focused, contradictory and reeked of the same loosey goosey process seen in other S13 cases. It should effect ALL S13 cases but it won’t.
Ultimately this bad law has only a legislative solution and the cases (past, current and pending) need judicial and court review/remedy.
It should be the action of a responsible justice minister( both provincial and federal) to put all S13 cases under judicial review and provide compensation for any unconstitutional process abuse – but where are you going to find a responsible justice minister these days let alone legislators with the cojones to act?
September 2nd, 2009 at 6:10 pm
Things must be a bit confused in CJC land: this post has been up for several hours and not a single one of Bernies flying monkeys – Modechai, Mitka…- have been buy to tell me to stop being mean to Bernie.
Could it be the fact that I would just love to see the ruling appealed? Guess so. Or perhaps the smelling salts aren’t working.
September 2nd, 2009 at 7:56 pm
The silence is deafening. The ruling repeats almost every complaint made by right wing nutcases. The process is punishment. Due process is required for criminal sanction. The bar for hate and incitement is quite high, not simply hurt feelings. The Warman Rights Commission is unconstitutional. Etc.
Really though, when all is settled, all this means is Boisson wouldn’t get the fine, but still gets a Cease and Desist order. And there still is no requirement of standing in a complaint. In fact it probably will focus the Commission on more people, since the goal is not punishment or quasi criminal sanction, just remedial and preventative.
My guess is that it will be appealed. Too many issues were raised that need Supreme Court clarification.
Derek
September 2nd, 2009 at 9:17 pm
They’ve been stretched pretty thin between my place and Scaramouche’s
September 2nd, 2009 at 9:25 pm
It’s tough to be that many people…
September 2nd, 2009 at 9:38 pm
Jay, they represent Jews as well as Jimmy Carter represents Christians.
September 2nd, 2009 at 9:48 pm
An internationally reknown legal expert on libel and defamation has stated privately that Lemire is now free of any and all encumbrances should he wish to sue the intervenors and the complainant so it is not surprising that Burny and the boys want an appeal real fast.
I have absolutely no doubt that Lemire is entitled to signifigant damages for reputation, abuse of process, misconduct etc.
September 3rd, 2009 at 2:40 am
One of the problems in appealing the matter will be deciding on what exactly should be appealed. If the appellants say that s. 54 should be “read-out” and that there should have been an order demanding that Lemire stop publishing the impuned material, then that appeal would surely be dismissed as being moot given that the material in question was actually removed from the website years ago, and before the actual complaint was actually filed.
If the appeal is of the finding that the punitive nature of the penalty for a s. 13 breach renders s. 13 unconstitutional, I think that the appeal has a good chance of failing on the merits and would provide a stronger precedant for those opposed to s. 13’s use.
I bet the decision will be appealed but not because that would be a good idea, but because Warman and the rest have demonstrated that they are determined to punish Lemire almost to the exclusion of rational thought.
September 3rd, 2009 at 6:27 am
Jay,
Who is this McLaughlin you speak of? Is it John McLaughlin of TV’s McLaughlin Group perhaps. You can’t be referring to beloved Canadian folkie Murray MacLauchlan or Lilith Fair diva Sarah McLachlanI know there’s a Supreme Court Chief Justice named Bev McLachlin, but surely this is not the person whose court you believe will overturn the decision of the Dickson court. (Are you sure that’s not Dixon? Or Derkson? Or perhaps Isak Dinesen?).
I would be surprised to see an appeal of this decision. Hadjis’s reasoning on the interplay of s. 54 and s. 13 is sound and while it is possible that he could have “read out” s.54, that doctrine tends to be applied on a case by case basis rather than a general measure. Given that the CHRC has already recommended that s. 54 be repealed (recommendation 5 of its June 2009 Special Report to Parliament) I suspect that the next step will be legislative rather than judicial. In the meantime, if you’re going to bring a s. 13 complaint, probably best not to ask for a fine.
Schimanki wrote:
I have absolutely no doubt that Lemire is entitled to signifigant damages for reputation, abuse of process, misconduct etc.
Really? I have absolutely no doubt that you have no idea what you’re talking about.
Jay,
Nice of you let folks like this post here. It makes your own musings look less unhinged.
September 3rd, 2009 at 7:56 am
Lemire is now free of any and all encumbrances should he wish to sue the intervenors and the complainant so it is not surprising that Burny and the boys want an appeal real fast.
In your dreams. This former head of the neo-Nazi Heritage Front (2001-2005) wouldn’t have a leg to stand on. Moreover, the CHRA takes a dim view of retaliation:
14.1 It is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim.
September 3rd, 2009 at 8:14 am
Yes Colin – as others have said before – this is a road rage thing – back to the Heritage Front Affair and now there is a scrambling to prevent lawsuits and DISCLOSURE ( wait for it = on National Security Grounds)
Dick might slip and slitter but Burny, Len and Harry will not.
September 3rd, 2009 at 11:26 am
Ah Yes Dawg, me thinks you protest too much.
If the filing is in poor faith etc, on false or planted evidence or…”retaliation” does not enter into the equation. It does during the process but not after if found to be in bad faith or or fabricated.
Burny and Harry have been suggesting that but Big Ed and RD think such “chaff” is null and void now. I am expecting a “pro-bono” champion of free speech to step up soon.
I understand that even Lucy has been the subject of several 13.1 complaints thus this discovery process and libel suits could get REAL interesting should you be right on “retaliation” – which so far you haven’t been.
September 3rd, 2009 at 11:33 am
I don’t think that the bar on “retaliation” in the Act prevents an action for compensation for actual wrongs done(assuming that there were any). In other words, s. 14.1 is not a sheild if there was a malicious prosecution or libel or whatever else is being alleged.
September 3rd, 2009 at 12:09 pm
Macleans magazine has an interesting article on former heads, apparently a once-vibrant collector hobby.
Marc Lemire’s head is particularly desireable due a ‘Queen Bee’ factor evidenced in the Complainant’s oddly conducted inclusion of the JRBooksOnline factor.
The Hadjis Decision confirms Lemire status as an ‘Aryan Superman’ (grrr)
He has endured the most bizarre litigation for longer than a US Presidential term, against a Complainant arsenal which included the unlimited personnel and equipment resources of state leveraged by all the similar resources otherwise available to Complainants.
September 3rd, 2009 at 12:16 pm
Dawg, now that the complaint has been dismissed I cannot see anything stopping Lemire from trying his luck without fear of “retaliation” complaints. Now the grounds for such an adventure are more problematic although some of the stunts Lucy and the Commission investigators pulled might amount to abuse of process that is a difficult case to win.
Hadjis was scathing as to the antics of the Commission in adding charges without actually, well, informing Lemire; but how to actually bring an action on that basis is more than a little perplexing.
September 3rd, 2009 at 2:33 pm
In other words, s. 14.1 is not a shield if there was a malicious prosecution or libel or whatever else is being alleged.
Except that Warman won all of his actions—including this one, at least in part. Unless you can prove that there was a conspiracy—and I know no one here would dream of such a thing—I can’t see Warman becoming vulnerable for following the legal procedures available to him.
September 3rd, 2009 at 2:40 pm
Following the legal procedures: no question. (Which is pretty dreadful in itself given that Warman was not a member of any of the minorities on whose behalf he was collecting money.) However, were Lemire to demonstrate illegality or even procedural irregularity, he might get somewhere.
September 3rd, 2009 at 3:14 pm
Lemire’s had quite a long time to come up wuth “proof” and I can’t see why the Hadjis ruling would suddenly make his task any easier.
September 3rd, 2009 at 3:31 pm
Dawg, there is a fair bit of proof in the transcripts and in the reasons of the Member. Is it sufficient for illegality? Not a question in these libel chilled times that I am going to speculate about.
There is no question based on transcript and the Members reasons that there were significant procedural irregularities. Not telling Lemire for months that he was also to answer for items not mentioned in the originating complaint would be one. There are plenty of others.
The problem there being whether these items are actionable.
One thing which is certain is that it will be sometime, if indeed ever, that any action by the CHRC with respect to s. 13 is a) unopposed, b) not subject to the most rigorous legal assault. The Commission, its investigators and its counsel were sloppy at best and downright deceitful at worst. Whatever slack people have foolishly granted the CHRC as a “remedial” agency is done. The right way to fight is with a full Court legal and publicity press, full document demands, FOI demands and an absolute insistence on procedural fairness and full disclosure. And every stunt the CHRC pulls has to be dragged to Federal Court ASAP.
But I suspect Harry’s action against Topham will be the last hurrah for s.13 in any event. As soon as the CHRC became adversarial the exception in Taylor was vitiated.
September 3rd, 2009 at 8:52 pm
Dawg said:
[i]Except that Warman won all of his actions—including this one, at least in part.[/i]
So Richard Warman won a case in which all but one of the posts he and the CHRC held up as violating Section 13(1) were found not to be hate speech or dismissed because the complainants provided insufficient evidence that Lemire knew about them or for some other procedural reason, and the Tribunal declared Section 13(1) the administrative tribunal equivalent of unconstitutional with respect to the one post that supposedly violated Section 13(1)? A case in which he and the CHRC got neither the penalty nor the cease and desist order he requested? A case in which the Tribunal found an expert witness he had been claiming was not credible “very credible” (which could impact his libel suits)?
Yeah, at least in part. Which part, exactly? It’s nice to see denial and spin are still up and running in liberalland. Face facts: Warman lost this one. Big time.
If you claim it’s because one article was declared to violate Section 13(1), I ask if something violates an unconstitutional law, does it really violate anything? No. And the only way the CHRT could have declared Section 13(1) the administrative equivalent of unconstitutional in anything but dicta WAS by finding at least one statement in violation of it. Otherwise, they would have had no reason to reach the issue (like what Member Hadjis did with the question of whether truth had to be a defense to Section 13(1)).
September 4th, 2009 at 12:32 am
Yes Cinyc “... Which part, exactly? It’s nice to see denial and spin are still up and running in liberalland. Face facts: Warman lost this one. Big time.”
Dawg, BCL, Jackel and Harry are spinning it big time but let’s face it – it was preceeded by the Lustig ruling in March 09 which set the stage for Hadjis to grow some. Ezra called it “Denormalization” and it was a reputration destroyer.
The combining and cumulative set of “irregularities” :) are clearly part of a pattern only recently discovered and in a real court setting – using the same complainant under a similar set of circumstances woud see “stays” before Appeals – despite what TW and the ARC are wanting to admit.
The most interesting thing is read Matas, Burny and Harry on the appeal. The CHRC and the AG will do it. Sounds like an ownership kind of statement.
September 4th, 2009 at 3:38 am
Dawg Said,
“Except that Warman won all of his actions—including this one, at least in part. Unless you can prove that there was a conspiracy—and I know no one here would dream of such a thing—I can’t see Warman becoming vulnerable for following the legal procedures available to him.”
Try staying on topic. You suggested that Lemire can’t sue because of the anti-retaliation provision in the HRA. I said that the retaliation provision wasn’t there to prevent suits for malicious prosecution or defamation. I did not say that I knew that Lemire would win or that he had a case that would be successful – just that he could bring the action.
Just as Warman, as you say, had the legal ability to bring his complaints, Lemire has the legal right to bring a civil action for defamation for example. Your argument that, just because he lost does not mean Warman acted maliciosly would apply to Lemire’s hypothetical action against Warman.
Or does your system of “legal entitlements” apply only to those whose cause you approve of?
September 4th, 2009 at 2:47 pm
TW -
As usual, you do a nice line in sarcasm, but your post was a little light on jurisprudence.
Why, pray tell, are you so certain that Bev CJ wouldn’t overturn Taylor? Inquiring minds want to know.
BTW - I would totally be in favour of putting the loud guy from the McLaughlin group on the SCC.
September 4th, 2009 at 5:22 pm
colin:
I have no idea what you’re talking about, but by all means let’s stay on topic.
Warman used the procedures available to him, and technically recorded a partial win even in the ruling just announced.
The law does not permit a person to be successfully sued for following established procedure. That would be somewhat akin to witnesses being charged with perjury on the sole basis that their testimony didn’t win the day.
“Malicious prosecution?” “Defamation?” After winning his cases? Come on.
September 4th, 2009 at 8:41 pm
Again, Dawg, what “partial victory” did Mr. Warman “technically record” in the Lemire case?
Getting the law you’ve been relying on in your campaign of “maximum disruption” against alleged neo-Nazis declared unconstitutional is a clear defeat.
If you think and keep on saying otherwise, you’d make a good Baghdad Bob.
September 4th, 2009 at 9:20 pm
cinyc…the victory was in having one complaint upheld which you so rightly pointed out was necessary in order for the destruction of s. 13 to be anything other than obiter dicta.
Warman and the Commission lost all the way round and pretending otherwise is pointless.