Moving to a Real Court
So what was actually going on at the Lemire Hearing yesterday? My bet is - along with trying to ferret out some information - Lemire’s people were looking toward the Federal Court in the event that the decision here follows all the rest of the s 13 complaints and goes against the respondent.
As I understand the allegation against Lemire he is supposed to have allowed comments which violated s.13. What he and his lawyers have - to a degree - established is that those comments may have been posted by one or another of the CHRC investigators. Lemire has also, to a degree, established that the investigators operated without much in the way of supervision or record keeping.
As well, Stacy’s flat out refusal to answer one question, the assorted redactions, Riszk’s absent memory, the failure of Commission counsel to bring relevant files or to be properly prepared and the absence of Stacey’s “reader” (who would be very interesting to cross examine in her own right) all suggest that the hearing itself was procedurally flawed. Stacey’s admission that it was a regular practice of the “investigators” to pre-investigate sites against which a complaint might be filed suggests pretty profound process abuses at the CHRC. (And I have to love the now established fact that some Commission investigators went “war driving” to find open Wi-Fi hotspots to post their filth from. I see that as further confirmation that Warman used his home computer until he got nailed on his IP and, realizing that could happen again, the “investigators” took to the road.)
Evidence that the complainant - Lucy - dropped by to use the CHRC facilities to track stuff down, train the investigator on the case and such like suggests a huge bias in the process.
Judicial Review requires errors of law or fact on the face of the record. There is a huge degree of deference from the Court to the Tribunal built right into the HRA. Basically, to have a chance on appeal Lemire has to prove that there were substantive and procedural errors which were significant. I am not sure yesterday’s hearing will have done that; but the overall case has a five day old fish odor.
Again, however, it should not rest on the respondent to take on the entire CHRC; rather there needs to be a judicial investigation of the methods and tactics of the Commission. It needs to happen immediately.
Written by jay on March 26th, 2008 with
21 comments.
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jay
WL Mackenzie Redux
Peter
cinyc
#1. March 27th, 2008, at 12:13 AM.
“it should not rest on the respondent to take on the entire CHRC”
Especially not that respondent. I can’t imagine a less promising victim to lead the charge on an appeal. Jay, I haven’t the time for research, but do any of your faithful know whether there is even a concept of entrapment that would help Lemire on a judicial review? This is civil/administrative law and I’ve never heard of one. Does anyone know of any precedents that would limit the Commission’s investigative techniques? The “procedural errors” of which you speak would refer to the Tribunal’s handing of the hearing, not the Commission’s prior investigation. Just as CRA doesn’t need to explain why it ordered an audit (or who tipped them off), why would the HRC be bound in how it investigates? We can hardly have it both ways, complaining there is no concept of due process in Commission investigations and prosecutions and then asking the Court to penalize putative violations of the due process we would like to see.
The Federal Court is not going to unilaterally impose police oversight or criminal process on the HRC. Judges like to administer justice to those they deem deserving. I can certainly forsee a court washing its hands of the matter, shoving this all off on Parliament and then snickering with delight at who took the fall. Bad precedent, worse champion.