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.
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.
March 27th, 2008 at 1:02 am
I fear, Peter, you are right.
The shakiness of the CHRC witnesses and the absence of any controls on their actions can, in the first instance, be addressed by the Tribunal in making its decision. And it is that decision which will provide the grounds, if any, for judicial review.
Absent any gross error on the part of the Member, and I didn’t see such error reported, the Federal Court is likely to punt the ball back to Parliament.
Which, in many ways, is exactly the right place for the whole s.13 issue to be resolved.
Unfortunately, the spineless CPC is more than a little unlikely to a)instigate a judicial inquiry into the actions of the CHRC, b) pass an act repealing s. 13.
March 27th, 2008 at 1:08 am
Jay, if you want to connect the dots, make sure they’re not in front of your eyes.
Steacy refused to answer a question, all right—to disclose the identities of people who were in a pre-complaint stage, a process that eventuated in them not making formal complaints. There was a clear expectation of confidentiality in such a case, and Steacy did what I would expect any ethical person to do.
The relevant files were produced on request; not everyone remembers everything when quizzed about past events; and it is unclear at least to me what Steacy’s reader would have been able to contribute. Why was (s)he not subpoenaed by Kulaszka?
Where you move from shaky ground to quicksand, though, is in your bold claim that alleged wardriving by Commission staff is a “now established fact.” Like hell it is. Such a claim has more than a whiff of trooferness about it. It seems far more likely that the “Jadewarr” datestamp was wrong, which would lead to the dynamic IP address lining up with the wrong person. After all, Steacy cheerfully and without hesitation admitted to being “Jadewarr.”
The “preinvestigation” is a normal part of processing a complaint. You want screening processes to keep things like the Levant complaint out of the system? Then you should be supportive of this initial phase. Someone accuses a web-site owner of hateful speech; the investigator visits and can’t find anything. No complaint eventuates. Nothing sinister there.
The evidence was that Warman “trained” Rizk while he was still a CHRC officer. Nothing sinister there either, and not much “training” was involved, frankly—showing her two public-access software packages on the Internet.
You’ll have to do better than this if you want to make your case against the CHRC. So, come to think of it, will Lemire.
March 27th, 2008 at 1:17 am
Valid point Peter…I seems like Lemire’s team was attempting to establish a pattern of malfeasant procedural bumbling and a defacto entrapment atmosphere.
Problem is Canada’s entrapment laws and tests give police a lot of leeway but this was not a police investigation…however, the fact that Steacy was aware there was a hate squad cop posting obvious hate crimes on Lemire’s site as a troll is now in the record…that is definite entrapment…Lemire can probably work that into something for judicial review…can’t say…I was under the impression that in Canada a case made for entrapment has to occur after a conviction ( in a legit criminal court) and then it produces a stay or dismissal…but this tribunal is not operated under the rules of evidence or bound by the official conduct codes of court officers and peace officers…just the same it was entrapment by the standards set by the SCC…whether it is applicable????
March 27th, 2008 at 1:20 am
Well, in a partial defence of the CPC, imagine you are advising the PM thus: “Prime Minister, we have a winner here. The HRC is trampling on free speech and harassing the innocent in the name of selective, leftist political correctness. Our supporters are fighting the good fight and are pressing for action. It’s time for you to charge in and fight openly and loudly for our historic liberties. Oh and BTW, the good guys are the neo-Nazis.”
I really don’t think our side is being clear-headed about what the significance of Lemire & co is to this issue and what it means to the potential support of the decent, distracted middle. I hate to say it, but Kinsella knows exactly what he is doing and is playing this one like a pro. But I’ve been beating this drum all day and it’s time to stop.
March 27th, 2008 at 2:08 am
Dawg, why assume that the datestamp was “wrong”?
That said, until we have a look at the transcripts we will have a hard time figuring out exactly what was and was not established.
I’ll debate the “pre-investigation” and expectation of confidentiality issues in due course. It is not at all obvious that there was even the hint of a complaint prior to Jadewarr hitting Free Dominion.
On Warman training Rizk it would be perfectly normal for Rizk to be trained but by a serial complainant? A bit dodgey that.
Peter, I take your point as to the advice to give the PM; however, despite, Kinsella’s cynical counsel to the contrary, once in a while a Prime Minister and a government need to do what’s actually right.
Plus, appointing a judicial inquiry into the conduct of s. 13 investigations would not be putting a lot on the table. Rather it would clear the air and come up with recommendations.
March 27th, 2008 at 2:14 am
Jay, I’ll respond to only one point for now. I think we’re all tired.
“On Warman training Rizk it would be perfectly normal for Rizk to be trained but by a serial complainant? A bit dodgey that.”
He was NOT a “serial complainant” when he “trained” her. He was a colleague, working at the Commission. She testified that the “training” took place sometime within 2003-4.
March 27th, 2008 at 2:31 am
As I recall Dawg, and I have to say that the record is murky on this as well, Warman left the Commission in July 3003.
(Editor’s note: Lemire’s live blog has Rizk being trained: “Miss Rizk indicated that she had received this training in the fall of 2003.”
Richard Warman filed the complaint in November 2003.
March 27th, 2008 at 3:57 am
Jay-
I think you might be missing a step. I’ve read somewhere (perhaps in the transcripts) that the Tribunal itself has the power to rule Section 13.1 unconstitutional. If that’s true, Lemire’s lawyer is making the case for both the Tribunal and any subsequent appeal.
Dawg-
I have no idea why you think the potential wardriving claim has “a whiff of trooferness about it” (whatever the heck that means). It’s what logically follows.
To understand why, you need to understand the background here. As best I can tell based on what was reported, someone using that IP address allegedly logged on to Stormfront as Jadewarr on December 8, 2006. Around that date, Richard Warman and the CHRC (specifically, their counsel who also was involved in earlier parts of the Lemire case, Mr. Vigna) would have been preparing for a December 12, 2006 Tribunal case brought by Mr. Warman against Jessica Beaumont. From what I understand (and you can confirm or deny, Dawg, since you were there yesterday), Dean Steacy testified that at some point, Warman visited the Commission’s offices and had someone there log in as Jadewarr and print out an exhibit for the Beaumont case. I don’t know whether that was using the same IP address as the one in question. Honestly, I’d wish that EVERY WEBSITE that has Jadewarr’s IP info publicly post it so that we can get to the bottom of this.
My GUESS is that Lemire’s lawyers were expecting Bell Canada to testify that Richard Warman logged on as Jadewarr – in other words, that he shared that username with Commission staffers. If that’s correct, the question for Lemire’s team now becomes whether Warman – or someone from the Commission – lives or works near that innocent victim. As best I can tell, the Commission’s offices are about 400 metres (1/4 mile) away. I doubt the victim’s wifi signal traveled that far.
The other possibility is that the IP address info was simply wrong. Dawg, you’re barking up the wrong tree. There’s simply no way Bell Canada is lying about who the IP address was assigned to – they don’t do that. The IP address was dynamic, but assigned to the same user for three weeks.
Others will no doubt posit that Stormfront lied about the IP address. There’s no evidence of that – and claiming that Lemire and his lawyer falsified evidence submitted to the Tribunal is a very serious charge to make without any evidence. Or Stormfront could be mistaken – but I think a sophisticated webmaster usually knows how to read his web logs.
March 27th, 2008 at 4:56 am
Dawg, Connie Fournier contextualizes Stacey’s refusal to answer…I am not sure ethics had much to do with it.
“Miss Kulaszka reminded Mr. Steacy that he had testified earlier that investigative activities where CHRC operatives signed up on message boards were “complaint-driven”, so she asked him what complaint had caused him to sign up as a Free Dominion member. Mr. Steacy first tried to say that the reason he signed up as Jadewarr on Free Dominion was because of the complaint lodged by Marie Line Gentes. Miss Kulaszka reminded him that the Gentes complaint was not filed until several months after Steacy’s online investigation began. He then suggested that Ms. Gentes had contacted him about the complaint before she formally filed it. He seemed distinctly uncomfortable when Miss Kulaszka pointed out that the post in the Gentes complaint was not posted until two weeks after his registration.
Finally, Mr. Steacy said that there had been other inquiries about filing a complaint with Free Dominion and that is why he had registered there. When asked who the potential complainants were, he shocked the room by stating, “I refuse to answer that question.” (Emphasis added.)
March 27th, 2008 at 5:09 am
Cinyc:
I am certainly not accusing the Bell official of lying. I do not believe I even implied such a thing. I am suggesting, though, that the “Jadewarr” timestamp may have been wrong. I know that it’s possible to alter timestamps, being a user of Blogger.
The only other explanation is wardriving, and that does seem needlessly conspiratorial, given that Steacy was only too willing to admit that he was “Jadewarr.”
I am trying to piece together the late-afternoon testimony wrt Warman visiting the Commission and having a document run off for him. At this point I have nothing but questions: how would he know what was in the restricted area of the website in question? Who ran it off for him, if indeed this was done? Truth to tell, I can’t be more specific on this point.
Jay:
You (or, rather, Connie) imply that Stacey changed his testimony. He did not. He noted that there were potential complainants (people who had contacted the CHRC with a possible formal complaint) who had a problem with FD. He didn’t say that he meant that Gentes had not also contacted him, no matter when his post went in.
I repeat: when inquiring citizens want to know whether they have grounds for a formal complaint, and ask a CHRC officer about this, they have a reasonable expectation of confidentiality. In Steacy’s place, I would have responded in exactly the same way. So, I suspect, would you.
March 27th, 2008 at 5:32 am
I should have added two additional points.
First, with respect to the timestamp, this is probably not a deliberate alteration. In Blogger, for example, if you spend two or three hours on a blogpost, the timestamp will register when you began, not when you actually posted.
I may have missed something, but where did the idea that dynamic addresses stay static for three weeks come from?
My second point is that we have no way of knowing whether or not Gentes contacted the Commission before Steacy ventured out into the rugged terrain of Free Dominion. But why would we reasonably doubt his explanation?
March 27th, 2008 at 6:23 am
Dawg grasping at straws as usual.
March 27th, 2008 at 6:33 am
Dawg, you wrote above, “You (or, rather, Connie) imply that Stacey changed his testimony. He did not. He noted that there were potential complainants (people who had contacted the CHRC with a possible formal complaint) who had a problem with FD. He didn’t say that he meant that Gentes had not also contacted him, no matter when his post went in.”
The way I would read Connie’s version, and I look forward to the transcript, is that Stacey was caught out by the fact the Gentes complaint arrived well after he signed up for the site and then simply made up the bit about other people complaining. Kulaszka called him on this by asking for the names of the complainants and Stacey, aware there were none, claimed confidentiality. (A claim which, so far as I can see is not supported in the Act: there is no right to confidentiality for people “calling in”.)
My sense, reading the various accounts of the Hearing, was that Stacey did not like being cross-examined (few of us do) and was largely unprepared. As was, apparently, counsel. And the man had to do all of this without – for unexplained reasons – his reader.
March 27th, 2008 at 6:50 am
The audio, when it arrives, should resolve this. But what I heard was this: Steacy explained that there was a preliminary stage in the complaints process, in which he might well do a little investigation. Formal complaints didn’t always eventuate. Gentes, he said, contacted him before he went onto the FD site.
None of this has been controverted. All of it seems plausible. You can explain it all away by calling Steacy a liar, but your grounds for this need to be a little firmer, methinks. He didn’t come across as a liar to me.
On the issue of confidentiality, Section 8 of the Privacy Act permits exceptions to the protection of personal information, including the order of a person or body with the power to compel testimony. That certainly applied to Hadjis, but, oddly, he did not order the witness to answer. An opportunity missed, we might both agree!
(Fur, scram. Grown-ups are trying to have a conversation here.)
March 27th, 2008 at 8:15 am
Dawg, I don’t know where I got my idea that the IP address was assigned to the innocent victim for three weeks. I thought it was Lemire’s liveblog – but it wasn’t. All Lemire said was that the IP address was assigned to the innocent victim from December 7 to December 2006. I might have read it in the comments section on one of the left-wing blogs on the subject.
I don’t know the duration. But you were there – so you might have it in your notes. And the rest of us will probably know more for sure when the full audio is released.
The wardriving explanation doesn’t seem as “conspiratorial” if you assume that the Lemire defence team thought Richard Warman was accessing the Jadewarr account on December 8. I’m NOT saying that’s necessarily what actually happened – just that it’s the most likely explanation for why the Lemire defence team raised the IP evidence in the first place. Occam’s razor tells me that the Lemire defence team wouldn’t have gone through the trouble of subpoenaing Bell to testify something we all already knew – that Mr. Steacy logged on Stormfront as Jadewarr.
Mr. Warman would have had the motive to make sure that the IP address didn’t link back to him – by that time, he likely knew that his IP address was being monitored as a result of the uproar about the Cools post. He wouldn’t want the Jadewarr account to be linked to both him and the Commission. The question is whether Mr. Warman had the opportunity – i.e. whether he lived or worked near the innocent victim at the time. Mr. Warman guards his address as if it were some state secret. Yet from what I understand, victims and witnesses in real criminal cases where there’s a real chance of retaliation are often required to state their address for the record in real courts every day.
March 27th, 2008 at 6:32 pm
Dr Dawg, where do you get this idea that witnesses in open courts and tribunals are allowed to refuse to answer questions on “ethical” grounds? If the question is irrelevant, the Tribunal should so rule but until it does, a witness is obliged to answer all questions. As in “the truth, the whole truth and nothing but the truth”. If he/she doesn’t, that is potentially contempt of court. You may admire Steacy’s integrity for it but he was certainly violating the rules and I don’t understand why the Chair didn’t order him to answer or the lawyers didn’t scream blue murder.
Also, respecting the “outing” of the mystery woman, a judge or Chair in an open hearing can’t just order a particular fact or piece of evidence to be kept confidential because someone might be embarassed unless there is a formal gag order made on motion. There has to be evidence upon which to meet a stringent test formally. That’s what an open hearing means, not to mention freedom of the press. A legal proceeding is not a dinner party. What Lemire did may have been unsavoury (surpise, surprise), but I think he was well within his rights.
Finally, I don’t have much sympathy for those trying to make a big deal out of Ms Rizhk’s poor memory or lack of prep. It was Lemire’s lawyers job to push her, refer her back to her previous testimony, demand her files be brought in (perfectly reasonable), etc. That’s what cross-examination is all about. For some reason they made a big rhetorical point out of her lack of prep and then suddenly backed off, even though the Chair looked ready to support them on the file question. Why is a mystery, but it is silly to whine that she didn’t make Lemire’s case for him unprompted.
March 27th, 2008 at 8:13 pm
jay on March 27, 2008 4:56 am
“Dawg, Connie Fournier contextualizes Stacey’s refusal to answer”
Your wasting your time Jat…from what I’ve read, Dawg and Connie went to different CHRC hearings…they heard different things and came away with different realities…judge for yourself which is more valid.
March 27th, 2008 at 10:58 pm
From the audio on the Socon or Bust blog, the Bell representative testified that the innocent victim had that IP address from 18:36:22 on December 7, 2006 to 21:35:56 on December 8 – a little over a day.
The Bell representative also testified that the innocent victim had the lease over that IP at “3:21” on December 8. I don’t know if that was AM or PM - given the way the representative gave times, it very well might be AM - but we can’t be sure. And in any event, the innocent victim also had that IP address at 3:21 PM.
Marc Lemire has a new blog entry out today essentially accusing the CHRC of piggybacking on the innocent victim’s wireless from their offices 400 meters or so away. Maybe my original assumption that they suspected Warman was incorrect.
We’re basically left with 2 possible plausible scenarios:
1) Someone at the CHRC, or perhaps Richard Warman, logged on Stormfront as Jadewarr on December 8 from that IP address.
2) Stormfront is mistaken and someone else logged on Stormfront on December 8 from that IP address.
Without access to Stormfront’s logs, we simply can’t know for sure. But again, I’d think a webmaster of a large message board knows how to read his own logs.
March 28th, 2008 at 5:56 am
cinyk:
I’m not a techie, but are we sure that the “Jadewarr” timestamp is correct? I’ve already mentioned how easy it is to alter one on Blogger.
Peter:
I take your point about refusing to answer the question—you’re the lawyer—but the witness was not asked to by the Tribunal, so the matter is moot at this point.
Is a formal motion required to suppress personal information? Again, I’m prepared to defer, but judges in regular courts appear to have considerable discretion in that respect.
March 28th, 2008 at 7:17 am
Dawg-
We’re not talking about a timestamp on Blogger here. We’re talking about the IP logs on a much more sophisticated message board platform. And while I’m not 100% sure, I don’t think we’re talking about the time stamp on a post – we’re talking about the IP address associated with a login on that message board.
Can IP logs be falsified or misread? Sure. But there’s no evidence of that happening here. If it were falsified, wouldn’t it make more sense to falsify it to an IP address Lemire knew was associated with the CHRC? Plus, I seriously doubt a lawyer would knowingly offer false information to a Tribunal – kangaroo or otherwise. And when the stakes are that high, you’d expect the interested parties to check and double check the IP address before requesting a subpoena. They’d lose a ton of face if they offered bad info.
The CHRC and Warman were likely preparing for an upcoming Tribunal case on Friday, December 8, 2006. That was the last business day before the Warman v. Beaumont case went before the Tribunal. We know from the transcripts of that case that some exhibits were printed shortly before the hearing.
Draw whatever inferences you want from this information. My gut tells me that the IP address ultimately will track back to someone at the Commission or Richard Warman. Only time will tell.