Keith Martin resumes the fight
Private members bills – like government bills – die on the order paper when an election is called.
It is great to see that Keith Martin, Liberal MP for Esquimalt, has reintroduced his motion calling for the deletion of s. 13 of the Canadian Human Rights Act.
“M-153 — That, in the opinion of the House, subsection 13(1) of the Canadian Human Rights Act should be deleted from the Act.”
Martin also realizes that the conduct of the CHRC and its staff needs to be roughly investigated and has introduced a motion calling for hearings into that conduct.
“M-156 — That, in the opinion of the House, the government should hold public hearings as part of a review of the Canadian Human Rights Act, the Canadian Human Rights Commission and its tribunal.”
The Moon report will be out Monday and I suspect that we will see a damning but limited report which will call for reform rather than abolition. We are certainly seeing the s.13 supporters warming up the “mistakes were made and the legislation needs tweaking” spin.
It will be interesting to see how far Moon goes in actually investigating the practice of the CHRC. If he doesn’t find anything amiss one would wonder at his appointment; but it is extremely unlikely that he will really get down to cases such as the use of aliases, the false flag postings, the lies under oath , the improper relationships between the Commission staff and its complainant in chief or why that complainant left the Commission.
For the answers to those and many more interesting questions we will have to wait for further Court ordered releases of Commission documents and emails as well as the sure to be fascinating results of the ongoing Document Discoveries in the Warman v. the Freedom Five (or is it Six).
November 23rd, 2008 at 7:25 am
“We are certainly seeing the s.13 supporters warming up the “mistakes were made and the legislation needs tweaking” spin. ”
That is totally disingenuous Jay. First CJC later followed by B’nai Brith almost a year ago noted that changes were needed to Section 13. It was well before anyone ever heard of Professor Moon. Suggesting this is a “Johnny come lately” attitude is patently false and terribly misleading.
November 23rd, 2008 at 11:35 am
Good to hear Martin is calling for public hearings!
November 23rd, 2008 at 12:45 pm
mordechai, this would be the CJC which gave Lucy the award? Perhaps it was unaware of the sorts of stunts Lucy and his enablers at the CHRC had been up to. And B’nai Brith seemed to have found religion when it became the subject of a Human Rights complaint and discovered how very few defences were open to it.
“Commissions have developed “without a full range of procedural safeguards, with informality. That was not a problem until a series of abusive complaints,” Matas said. canadian jewish news
How can they tell the complaints were “abusive”?
It is always amusing to see people demand procedural safeguards when they are being harassed. Where was this demand when the basement nazis were under investigation?
The point, mordechai, is that the entire notion of using procedureless tribunals to take away constitutionally protected rights was wrong in conception. A constitutional right should never be violated without the full array of procedural safeguards.
November 23rd, 2008 at 4:34 pm
Jay, Tribunals are not “procedureless”. I’m not sure where you get this idea and why you perpetuate it. They run under civil procedure similar to labour tribunals, mental competancy hearings etc. I have sat in on a number of Human Rights tribunals and to suggest it doesnt run under civil procedure is just plain false.
November 23rd, 2008 at 4:47 pm
mordechai, there is certainly the appearance of procedure. And there are published rules of procedure; the problem is that the actual operation of the tribunals makes a mockery of both.
To take a simple example – after the Commission stonewalled for a months and even years in the Lemire matter, and was ordered by the Federal Court to provide a large number of documents, it failed to provide those documents in a timely manner and, when this fact was brought up to the Member hearing the matter the member was unwilling to allow more time for Lemire and other intervenors to cross examine on the reluctantly revealed documents.
Or, to take another more obviously egregious example, material filed in evidence by Levant in his matter, was redacted before being passed on to the Commission. In other words, some low level functionary – the equivalent of court clerk, took it upon herself to censor evidence.
There is no procedure mordechai because the ostensible procedure is not followed.
Saying that the CHRC has proper procedure is rather like the claim that the Soviet Union had a democratic constitution.
This is a rogue agency and it needs to have its power to infringe upon constitutional rights removed forthwith.
November 23rd, 2008 at 6:11 pm
Jay,
I’ve said it before, I’ll say it again: if you want to play a lawyer on the internet, you’re going to have to do your homework. As it is, you’re talking out of your ass.
You continue to conflate the commission and the tribunal; the latter is a quadi-judicial body that is required to provide procedural fairness, the former is, among other things, an investigative body, and is not required to provide procedural fairness any more than the RCMP are.
Levant’s submissions to the commission are not evidence. They’re not even argument. They’re his response (although a more accurate description might be “rant”) to a complaint. And while he should have the right to spew irrelevant verbiage all he want, the decision to redact the more gratuitous portions, while ill-considered, had not impact on the result.
Likewise, investigative bodies get into fights about evidence all the time. To sugges that this makes the CHRC a “rogue agency” is just more bullshit hyperbole. Which puts it one steps above the ridiculous accusations that investigators stole wireless signals, an accusation that is promulgated months after it was discredited.
Likewise, all the pissing and moaning about the CHRC investigators and “entrapment” is based on some fantasy version of the limits on investigative techniques. The fake posts are designed to identify people who have already messages that violate the act; there is no evidence that the impugned messages would not have been posted but for the message filed by investigators.
And so it goes. You’ve bought into Ezra’s cheap shot strategy of defaming and demonizing those who work for human rights bodies, a strategy he employs because he can’t articulate principled or practical arguments against hate speech laws (or at least those arguments don’t contributed to his personal martydom and provoke the remedial reading class of the right to hit the Pay Pal button).
You want to fix the human rights process? Clarify the commission’s power to dismiss complaints and set a timeline in which they must fish or cut bait. And increase the tribunal’s power to makes costs orders in the case of vexatious or bad faith complaints.
You got a problem with hate speech laws? Then at least have the integrity to make a principled argument. Spare us this legalistic bafflegab, baseless libel and hysterical demagoguery.
November 23rd, 2008 at 7:42 pm
Well Jay if anyone believes there has been an abuse of process there are Courts and law to deal with it. All I read from you and others of your persuasion is accusation after accusation. If a law has being broken call the authorities or take it Court. Otherwise it is just so much BS.
November 23rd, 2008 at 8:30 pm
mordechai, already done and the net result was some rubbish about not being able to get evidence from the US - as if. The RCMP gets evidence from the States all the time…when they want to.
However, on abuse of process, people go to the Federal Court regularily and get orders which the CHRC barely complies with or largely ignores.
This is a broken agency administering a very bad piece of law. Let’s get rid of the law and investigate the agency.
November 23rd, 2008 at 8:41 pm
Ah, tw, true colurs showing at last, “the former is, among other things, an investigative body, and is not required to provide procedural fairness any more than the RCMP are.” Nothing like a little billy club to the goolees to produce a confession. If you are ok with procedural unfairness with the RCMP then you’ll be fine with the CHRC flexing a bit of muscle. I’m not, but you go right ahead.
Any submission to the CHRC may be used in proceedings before the Tribunal. As such its evidence. If you would care to cite a little law to the contrary I’m all ears. If you are down with court clerks editing submissions for relevance on, as it were, their own motion I pity such clients as you have.
Fights before Courts or Tribunals about evidence occur; but it is rare for investigators to outright lie without the matter being dismissed forthwith when they are caught. Yet that happens regularly before the Tribunal without the matter being dismissed.
I have not the slightest interest in “fixing the Human Rights process” as it pertains to the negation of constitutionally established rights. I want it gone not tweaked.
If you are going to take away a constitutional right then I think, at a minimum, the criminal standards of proof and evidence need to be used. We have a perfectly good Criminal Code section dealing with hate speech. That is sufficient.
Repealing, not tweaking, s. 13 is the proper thing to do here.
November 23rd, 2008 at 9:39 pm
Jay,
Admit it – you don’t know what you mean by procedural fairness. It’s a nice sounding word you picked up along the way and its sounds like a good thing, so you drop it in here and there to make the lack of it sound like the end of the world.
Here’s a hint: procedural fairness has nothing to do with investigative techniques. Now, those investigative techniques can be contrary to the charter, but that’s not the same thing. And, from all I can tell, nothing that CHRC has done in the way of investigation has violated the Charter. Investigators have pretended to be someone else, which is a perfectly legitimate investigative technique. They’ve made sympathetic noises to people under investigation, which happens daily in criminal investigations. They have NOT entrapped anyone – as that term is properly understood.
Procedural fairness is what one expects from the tribunal, which is an adjudictive body. Under administrative law, the amount of procedural fairness that is required varies with a number of factors, including the possible punishment and the seriousness of the charge.
As for this: “Any submission to the CHRC may be used in proceedings before the Tribunal. As such its evidence.”
Well, no it can’t and no it’s not. The commission’s role includes dispute resoluton – mediation, conciliation, that sort of thing – and as anyone who has been involved in that process known, it is a basic principle that materials put forward during dispute resolution cannot be used in any subsequent litigation.
It seems to me that the reason you’re not interested in fixing the process is that you haven’t a goddamn clue about the process. You’ve swallowed whole the nonsense promulgated by propagandists like Levant and Fromm as if it were the holy truth.
BTW, while I know you like to plug your ears and go “lalalala” every time someone draws a comparison between human rights law and libel law, but you should know that the judge in a libel action has the same power exercised by the tribunal in Boissoin’s case—namely, to issue a permanant injuction barring the defendant from ever publishing the impugned words ever again. And all on a balance of probabilities.
November 23rd, 2008 at 10:14 pm
Actually tw I have a very clear idea of what is meant by procedural fairness and it was not “picked up along the way”.
Where we disagree is in your happy desire to limit procedural fairness to the actions of the Member hearing a matter brought before the tribunal. And, as a matter of law, you are certainly entitled to claim to limit procedural fairness to that rather specific context. After all, the activities of the investigators are not subject to judicial review while the actions of the Member are. Which in a limited way is true; however, within the broad context the actions of the investigators and the people who supervise the investigators are also subject to review on Charter grounds. And they have been reviewed and have consistently been found wanting.
Meanwhile, it may be time to trot back to your evidence textbook, or, perhaps a logic book: “it is a basic principle that materials put forward during dispute resolution cannot be used in any subsequent litigation.” is a classic example of an ignoratio elenchi; you have answered a question which was not asked. My point was that the evidence that went before the Commission in the particular case were altered by the junior busybody. And those materials were, in fact, evidence.
As to your view that a judge in a libel action has the same power as the tribunal – a judge can issue any damn injunction he sees fit and the tribunal can make any order it wishes; the difference is that until a judge gives that order teeth it is simply words on a page. A tribunal has no capacity to jail or fine for contempt.
November 23rd, 2008 at 10:43 pm
No, Jay, Ezra’s raving wasn’t evidence, which is a term used to describe material upon which an adjudicative body may rely in making its decision. The commission is not an adjudicative body.
In any case, they punted the complaint, despite Levant’s foaming at the mouth. What’s the precise legal term I’m looking for? – oh, yes, no harm no foul.
All the rest is bullshit and bafflegab. Procedural fairness IS limited to adjudicative procedures. You can apply the term elsewhere, just as you can call a horse patty a hat, but in both cases you’ll only end up looking silly.
As for this “the actions of the investigators and those who supervise the investigators are also subject to review on Charter grounds. And they have been reviewed and have consistently been found wanting.”
Oh, really? Do point to me to the decisions in which the actions of investigators have been found to breach the Charter. Other than by Ezra.
And then there’s this gem:
“As to your view that a judge in a libel action has the same power as the tribunal – a judge can issue any damn injunction he sees fit and the tribunal can make any order it wishes; the difference is that until a judge gives that order teeth it is simply words on a page. A tribunal has no capacity to jail or fine for contempt.”
You might want to read s. 57 of the CHRA:
“An order under section 53 or 54 may, for the purpose of enforcement, be made an order of the Federal Court by following the usual practice and procedure or by the Commission filing in the Registry of the Court a copy of the order certified to be a true copy”
November 23rd, 2008 at 11:17 pm
tw, in other words, until and unless the Commission files its order there is no enforcement…and, pray, once filed, who does the enforcement? Oh, yes, the Federal Court. What was your point again?
As to the question of whether or not a submission to the Commission is evidence: the Tribunal in various decisions has cited correspondence with the Commission as evidence. In fact, the very complaint which initiates the process is often in evidence.
My point, of course is that “redacting” material which is to be forwarded to a decision maker – whether Commission or Tribunal – is entirely improper as that material is or may become evidence. How hard is that for you to grasp tw. Again, think about how happy you would be if on filing a motion you found out that the clerk you handed it in to had struck out various bits as irrelevant or personal. If opposing counsel wants to make the motion to strike, fine, but the clerks don’t have that right.
November 24th, 2008 at 4:59 am
Jay, if the RCMP could not get evidence from the U.S. this was almost certainly because the owner of Stormfront would not supply that evidence (in the way he supplied the first IP address that got the whole investigation rolling). The jurisdictional issues then arose as to how to compel the site owner to respond, and the RCMP almost certainly realized that the case was such crap jumping through all the hoops was a waste of time.
Although it doesn’t surprise me you would now pull the RCMP into your whole conspiracy theory. When do you get to the FreeMasons?
November 24th, 2008 at 6:26 am
I’m still trying to figure out your point. So the commission has to file the order with the court. Big deal. Do you think the court is going to look behind the order and hold a new hearing if it’s breached?
I agree that the order should have gone to the commission untouched. After all, they deserve the same chuckle as Ezra’s self-important peevishness as the rest of us. That said, it ain’t evidence. Evidence is used to prove a fact. The only fact Ezra’s submissions proved is that he’s a doofus.
BTW, if you think a registry clerk is a mere stamping machine, you’ve clearly never seen some litigant try to file a document that doesn’t conform to the rules. Say, a petition seekign an order that the HR commissioner is a “giant poopyhead”.
November 25th, 2008 at 12:29 pm
Fokls, just a friendly reminder: trollwaste is not a lawyer and has no legal education. Do not take seriously anything he says about law.