Mediation in the Lemire Case: The Federal Court gets it all wrong

Written by Paul Fromm

Wednesday, 21 November 2012 06:40

*The Marc Lemire Internet Free Speech Case -- Part 2* Mediation in the Lemire Case: *The Federal Court gets it all wrong***** * http://blog.freedomsite.org/2012/10/mediation-in-lemire-case-federal-court.html * ** ** ** ** In the recent bizarre ruling of the Federal Court in the Marc Lemire case<http://blog.freedomsite.org/2012/10/breaking-federal-court-rules-in-lemire.html>– where a Justice of the Federal Court upheld the completely discredited Section 13 of the Canadian “Human Rights” Act<http://www.stopsection13.com/>– The Justice also further claimed that the Tribunal’s clear and decisive ruling<http://blog.freedomsite.org/2009/09/statement-by-marc-lemire-on-tribunals.html>was incorrect with respect to mediation. Since the ruling, Richard Warman has taken to one of the websites he posts on to claim he was ‘*extremely pleased*’ with the courts finding that “*repeated efforts were made by the Commission and Richard Warman to engage Marc Lemire in mediation or negotiation but these were always refused by Lemire because he would not accept a cease and desist order as part of any settlement. (para 60)*”**** ** ** Senior adjudicator Athanasios Hadjis of the Canadian Human Rights Tribunal looked at the mediation quite extensively in the Lemire case, and found that<http://chrt-tcdp.gc.ca/search/files/t1073_5405chrt26.pdf>: “*Mr. Lemire repeatedly asked formally through his legal counsel for an opportunity to mediate or conciliate a settlement to the complaint, to no avail…*” [para 284] and further that “*As I have pointed out several times in this decision, Mr. Lemire had not only “amended” his conduct by removing the impugned material, but sought conciliation and mediation as soon as he learned of the complaint against him. The process understood by the Supreme Court was not what Mr. Lemire experienced.*” [para 289]**** ** ** The Federal Court said that: “I*n this instance, the Member accepted Mr. Lemire’s contention that the complainant and the Commission declined to mediate or conciliate a settlement to the complaint. This is not borne out by the record of the Tribunal proceedings. Repeated efforts were made to engage Mr. Lemire in mediating or negotiating a settlement of the complaint. However, they were conditional on Lemire’s acceptance of a cease and desist order, which he refused to accept*.” [para 60] **** ** ** But who is correct, the Federal Court who reviewed the matter [in a *ONE DAY* hearing], or the Canadian Human Rights Tribunal who reviewed the Lemire case for close to four years, across close to 30 days of evidence and hearings?**** ** ** Here is just one of the many documents I have on the mediation issue. I have plenty more, but these documents really underline how the entire process worked against me. It was a punitive process which in itself was the real punishment<http://canadianhumanrightscommission.blogspot.ca/2010/12/section-13-series-process-is-punishment.html>of the entire hearing. **** ** ** <http://4.bp.blogspot.com/-neOKBqTf5YM/UHzzQgwKsvI/AAAAAAAAA4k/AFRp63E5sc0/s1600/Ltr+from+Tribunal+-+offering+mediation+-+Sept20-05_Page_2.jpg> **** ** ** ** ** On September 20, 2005, when the Marc Lemire case was referred to the Canadian Human Rights Tribunal for a hearing, one of the very first letters the Tribunal sent was to request mediation of the case. The Tribunal stated: “*Before planning the actual inquiry, the Tribunal is offering mediation, on consent of all parties, in an attempt to achieve a settle of this matter. If the parties are of the view that mediation would be of assistance, the Tribunal Chairperson will designate a member of the Canadian human Rights Tribunal to meet with the parties to help in negotiations to resolve the complaints. As Counsel for the respondent *[Marc Lemire]* in these proceedings, our Mediation Procedures are enclosed for your review, to assist you in making this decision.*”**** ** ** <http://3.bp.blogspot.com/-3EFy_ecGf0k/UHzzsluUWBI/AAAAAAAAA4s/vcBFnJEBkko/s1600/We+agree+with+Tribunal+request+for+Mediation+-+Sept23-05.jpg> **** ** ** A mere three days later, Marc Lemire’s lawyer – Barbara Kulaszka – immediately responded by saying “*Mr. Lemire agrees to mediation in the above-noted complaints by Mr. Warman** in English. I propose that the mediation take place in the cities of Bellville, Kingston and Toronto, listed in order of preference.*”**** ** ** Unlike the questionable ruling by the Federal Court, or any other claims, there was NO “precondition” of anything. Marc Lemire agreed to mediation before the Canadian Human Rights Tribunal, immediately and unreserved. The quote above is the entire letter from Marc Lemire’s courageous lawyer, Barbara Kulaszaka. There was no precondition, or any refusal to accept a “cease and desist” order.**** ** ** *And who turned down the mediation before the Canadian Human Rights Tribunal?***** ** ** ** ** <http://2.bp.blogspot.com/-dzgRfMDiUCk/UHzz8lnJOEI/AAAAAAAAA40/aSWfsoeqVwY/s1600/Ltr+from+Tribunal+-+Mediation+turned+down+-+Sept30-05_Page_1.jpg> **** ** ** ** ** On September 30, 2005, Gregory Smith, Registrar of the Canadian Human Rights Tribunal sent us a letter, wherein he stated: “*In response to our letter dated September 20, 2005, inquiring whether the parties were interested in having the above-noted case mediation, I am now writing to confirm that mediation has been declined by the Complainant *[Richard Warman]*. Therefore, this case will now proceed to hearing.*”**** ** ** Here is the entire letter, in case you think I might have left something out. Just click on each image to enlarge it:**** ** ** <http://2.bp.blogspot.com/-J6eMjWLJntY/UHz0mVTCW_I/AAAAAAAAA5E/WqNa5wFs0g4/s1600/Ltr+from+Tribunal+-+Mediation+turned+down+-+Sept30-05_Page_3.jpg> **** ** ** <http://2.bp.blogspot.com/-dzgRfMDiUCk/UHzz8lnJOEI/AAAAAAAAA40/aSWfsoeqVwY/s1600/Ltr+from+Tribunal+-+Mediation+turned+down+-+Sept30-05_Page_1.jpg> <http://1.bp.blogspot.com/-lYGUEjyxZic/UHz0CQAEUfI/AAAAAAAAA48/grJVEKqd2bE/s1600/Ltr+from+Tribunal+-+Mediation+turned+down+-+Sept30-05_Page_2.jpg> <http://2.bp.blogspot.com/-J6eMjWLJntY/UHz0mVTCW_I/AAAAAAAAA5E/WqNa5wFs0g4/s1600/Ltr+from+Tribunal+-+Mediation+turned+down+-+Sept30-05_Page_3.jpg> **** ** ** **** *The Federal Court was totally wrong*. I did not put preconditions on the mediation, and for those that wish to praise the Federal Court for this incorrect ruling, should really review the documents posted in this email, and think again about who turned down mediation from day one. **** ** ** Can you say … “Maximum Disruption<http://ezralevant.com/2009/09/minimal-impairment-vs-maximum.html> ”?**** ** ** ** ** ** ** -Marc Lemire**** http://www.freedomsite.org**** http://www.StopSection13.com <http://www.stopsection13.com/>**** ** ** ** ** ** ** ** ** ** ** ** ** ------------------------------------**** **** Can I count on you to support the cause of freedom and rid Canada of this disgusting though control legislation? My courageous lawyer Barbara Kulaszka and I have demonstrated what two dedicated freedom fighters can accomplish against overwhelming odds. We have single-handedly and doggedly fought the system and exposed the corrupt underbelly of the "Human Rights" Commission's racket. Nothing ever comes easy when you are fighting such fanatical censors. This case is a seminal one, where the outcome will have serious implications on our right to think and speak freely in this country for generations to come. All Canadians will benefit when we manage to get this shameful law expunged from our legal books.**** **** ** ** I cannot carry on this important fight alone. Your donations literally equal the survival of this case. **** ** ** You can contact me here:**** **** ** ** *Marc Lemire***** *762 Upper James St***** *Suite 384***** *Hamilton, Ontario***** *L9C 3A2***** ** ** Email: [email protected]**** **** Web: http://www.freedomsite.org | http://www.StopSection13.com<http://www.stopsection13.com/> **** **** Twitter: @marc_lemire <http://twitter.com/marc_lemire>

 

A Bitter Grudging Partial Victory in Lemire Case

Written by Paul Fromm

Tuesday, 20 November 2012 06:05

*The Marc Lemire Internet Free Speech Case -- Part 1* ** *A Bitter Grudging Partial Victory in Lemire Case* In a long awaited decision in the Marc Lemire Internet case, Mr. Justice Mosley delivered his long awaited judgement, October 2, 2012. As we shall explore in Part 2, Judge Mosley should never have been seized with this case. He should have recused himself on the basis of a reasonable apprehension of bias. As a lawyer for the Department of Justice, he was the point man shepherding through amendments to various pieces of legislation, including Sec.13 of the Canadian Human Rights Act, which was now worded to specifically hand over control of the Internet to the Human Rights Commission thought police. He strongly assured MPs that this legislation was constitutional. Now, wearing his since acquired judge's robes, he's being asked to rule that his baby is unconstitutional. Potential bias? Potential conflict? You bet. Hamilton webmaster (The Freedomsite) Marc Lemire was one of Richard Warman's most prominent victims. He was hit with a complaint by Richard Warman in 2003 for postings on the Freedomsite. Then, began a six year legal battle. Mr. Lemire not only fought the complaint on the merits but also challenged the constitutionality of Sec. 13. He was joined by the Canadian Association for Free Expression and Doug Christie's Canadian Free Speech League. Impressive evidence was introduced and witnesses led. The dirty tricks, or at least some of them, of Richard Warman and the Canadian Human Rights Commission were exposed. We learned that the chief investigator or Internet "hate" a blind man named Dean Steacy put no weight on freedom of speech investigations as "free speech is an American concept." The very science on which Sec. 13 was based was challenged. The sorry history of Sec. 13 -- a 100% conviction rate -- was exposed. On September 2, 2009, in a landmark decision Athanasios Hadjis essentially ruled Sec. 13 unconstitutional, albeit on annoyingly narrow grounds. In 1990, by a narrow 4-3 margin, the Supreme Court of Canada narrowly upheld the constitutionality of Sec. 13 on the basis that, while it did restrict free speech, it was essentially remedial, not punitive. However, in 1998, a range of fines and financial penalties was introduced. On this basis, Mr. Hadjis acquitted Mr. Lemire on all but one charge -- an article about Negroes and AIDS -- refused to apply an penalty and essentially declared Sec. 13 to be unconstitutional as it was no longer "remedial." We'd have liked to have seen it thrown out on more substantial grounds, Still, a victory is a victory. Within a month the Canadian Human Rights Commission sought judicial review (appeal) its humiliating defeat. After two years of legal jockeying and tens of thousands of dollars spent by those promoting free speech, the appeal was heard in Federal Court, December 13, 2011 by Judge Mosley. On June 4, well before he rendered his decision, the House of Commons repealed Sec. 13. One might think the judge would simply deliver the coup de grace and put this totalitarian piece of repression out of its misery. However, Judge Mosley saved his hobby horse. He maintained in the fact of all evidence that Sec. 13 was constitutional and an acceptable denial of free speech. However, the financial penalties are unconstitutional. Marc Lemire is to be sent back to the Tribunal for sentencing. And to add insult to injury, chronic complainer Richard Warman who chose to make this mischief is to be paid for writing his legal brief and for attending the appeal. *THIS COURT’S JUDGMENT is that*: 1.The application for judicial review is granted and the matter is remitted to the Tribunal to; a.issue a declaration that the publication of the article “AIDS Secrets” by the respondent Marc Lemire constituted a breach of s 13 of the *Canadian Human Rights Act* ; and b.for determination of whether a remedy for the breach is to be imposed under ss 13 and 54(1)(a) and (b) of the Act; 2.It is declared that ss 54 (1) (c) and 54 (1.1) of the *Canadian Human Rights Act* are of no force or effect pursuant to s 52 (1) of *The Constitution Act, 1982, being schedule B to the Canada Act 1982 (U.K.), 1982, c. 11,1982*; 3.The respondent Richard Warman is awarded costs for the preparation of his record and his out of pocket disbursements for attendance at the hearing against the respondent Marc Lemire. The decision is rife with errors and I shall deal with just a few in this Part. One of the key arguments advanced by Mr. Lemire and especially promoted by CAFE was that the justification for Sec. 13 (and, indeed, for upholding the "hate law", Sec. 319 of the Criminal Code) that the Supreme Court bought in 1990 was based on bad science. Frankly, it was "theoretical" nonsense back then, but neuropsychology has made huge inroads and shown us how the human brain reacts. the science they accepted in 1990 is now junk. This is how it goes: the Canadian Charter of Rights and Freedoms is a smoke and mirror job of Indian giving. We are promised all these rights -- free speech, freedom of belief, etc. Then comes the weasel clause, "subject only to such restrictions as are demonstrably justified in a free and democratic society." Thus, if Parliament or a provincial legislature has a good goal in mind and, to achieve the goal restricts your rights, that's alright as long as the restrictions accomplish the goal and are not excessive. In the case of Sec. 13, the Supreme Court accepted that "hate speech" had a bad effect on society. This was all based on a 1965 report by an obscure University of Toronto psychology professor Frederick Kaufman. he argued that minorities were made fearful by "hate speech", that they tended not to want to be themselves and that they withdrew from society and, at the extreme end, abused drugs or alcohol. This being so, Parliament, the Court held, was right to suppress "hate speech." Common sense and every day observation tell us that that's not the way groups respond when they are criticized, even extravagantly. Professor Michael Persinger, led as an expert witness at the Lemire tribunal, sank the scientific ship holding afloat the Supreme Court's justification of repression. Persinger testified that Kaufmann was wrong. On being confronted with "aversive language" ("hate speech" is a loaded term, Persinger testified), minorities either scoff at the comments and reject them or become angry and want to argue or refute them. Neither reaction is a harm to society. In fact, both are positive. So, in fact, beyond a few wounded feelings "hate speech" causes no harm to society. There goes any justification for Sec. 13 This was a key argument. At paragraph 78, Judge Mosley states: " Most of the interested parties agree that the objectives of s 13, the suppression of hate speech and the promotion of equality, are pressing and substantial. Only Mr. Lemire and the CFSL appear to take issue with that proposition. Neither, in my view, have submitted any valid argument as to why the objective of s 13 is not pressing and substantial and why this Court should depart from *Taylor* on that point." Well, actually the Canadian Association for Free Expression forcefully challenged the objectives of Sec. 13 in suppressing "hate sch." One wonders in despair whether Judge Mosley even read our submissions or heard our lawyer's summation. The learned judge continued: "Lemire further questions the legitimacy of the finding in *Taylor*, that hate speech can cause substantial psychological stress, arguing that the Supreme Court relied not on expert evidence, such as he presented to the Tribunal, but on extrinsic research, to reach that conclusion. (para 80) And then further: " Chief Justice Dickson arrived at the same conclusion in *Keegstra* at paras 58 to 80. He stated at para 80: [80] In my opinion, it would be impossible to deny that Parliament's objective in enacting s. 319(2) is of the utmost importance. Parliament has recognized the substantial harm that can flow from hate propaganda, and in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension in Canada has decided to suppress the willful promotion of hatred against identifiable groups. The nature of Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred (*Jones*, supra, per La Forest J., at pp. 299-300). Additionally, the international commitment to eradicate hate propaganda and the stress placed upon equality and multiculturalism in the *Charter* strongly buttress the importance of this objective. I consequently find that the first part of the test under s. 1 of the *Charter *is easily satisfied and that a powerfully convincing legislative objective exists such as to justify some limit on freedom of expression." (para 83) The judge just ignores the unrefuted testimony of Dr. Persinger that the scientific account the Supreme Court accepted was simply bad science. The judge will not let his legal baby go: "Notwithstanding the recent legislative effort to repeal s 13, I have no difficulty concluding that the objective of the enactment continues to be substantial and pressing." (para 87) Nonsense. So, as he sees it, Parliament was wrong. Finally, Judge Mosley all but admits that the purpose of Sec. 13 is not to suppress "hate speech" but to silence a particular political ideology: "Apart from the technology, there is little to choose between* Taylor’s* callers and like-minded individuals looking for confirmation of their views on a white supremacist web site. And the suggestion that they are open to countervailing views can not be taken seriously. "(para 94) The judge rejects evidence from several witnesses that the Internet is far more interactive and functions very differently from a telephone answering machine. So, should this judgement stand, Marc Lemire would be assessed a penalty, likely a "cease and desist order", a lifetime gag, despite the fact that the law has been repealed by the House of Commons. To add insult to injury, he'd have to pay tormentor Richard Warman for Warman's costs in preparing his submission and his costs in travelling to the hearing from Ottawa. Warman has an uncanny way of persecuting people and still getting paid to do so. Finally, Sec. 13, until its repeal is passed by the Senate, could, theoretically be used to persecute others with the temerity to criticize privileged minorities on the Internet. Yes, on the good side, the financial penalties are gone. The Mosley decision MUST be appealed. *On October 30, Marc Lemire filed "Notice of Appeal." On November 12, the Canadian Association for Free Expression filed notice that it wished to support Marc as an intervener in the appeal.* Paul Fromm Director CANADIAN ASSOCIATION FOR FREE EXPRESSION *The Appeal is Going to Cost Money* To fight to maintain or, should I say, regain free speech on the Internet. This appeal must be funded. Legal submissions, research and preparation cost. I again ask for your assistance to help CAFE join the appeal against Judge Mosley's decision. __ Yes, count me in. Here's my donation payable to CAFE to assist in this appeal. Name: __________________________________________________________ Address: _________________________________________________________ _______________________________________ e-mail: ____________________

 

Free speech stutters

Written by Paul Fromm

Monday, 19 November 2012 09:09

*THE SPECTATOR* Free speech stutters 0 Comments<http://www.spectator.co.uk/australia/8357781/free-speech-stutters/#respond> Rowan Dean <http://www.spectator.co.uk/author/rowan-dean/> 18 August 2012 *In Defence of Freedom of Speech: From Ancient Greece to Andrew Bolt By Chris Berg IPA Books, $24.95 ISBN 9780909536749* It’s tempting to imagine some bespectacled ancestor of Chris Berg running his ink-stained fingers through his pudding-bowl haircut, hunched over his printing machine in the back streets of London circa 1675 churning out copies of, possibly, *A Treatise of Thoughts in Defending ye Rights of the Commone Man unto the Expressiones of his Speeche and Other Musings upon the Discourses of our Freedomes*. No doubt it would have been a big hit in the coffee houses of Whitechapel, as the burgeoning Bergian following immersed themselves in the depth of his scholarly knowledge and the passion of his arguments. Now, some 340 years later, you would have thought that the right to free speech, freedom of expression and a free press would no longer need to be championed. Self-evidently, these critical memes, which in one form or another have underpinned the successes of civilisations from the ancient world through the European Enlightenment to today’s Western-style democracies, should not need to be validated. Unfortunately, that’s not the case. What is most fascinating about Chris Berg’s excellent new book *In Defence of Freedom of Speech: From Ancient Greece to Andrew Bolt* is not only how tortuous and fragile the development of free speech has been over the centuries, but more importantly, how yet again — in 21st-century Australia no less — the usual malign forces are mounting the same old paternalistic arguments in order to stamp it out. Berg allows everyone from Socrates to Marx to spell out the arguments and expose the dangers that Ray Finkelstein QC and his admirers within the Gillard government are flirting with in their desire to impose a regulatory body to oversee Australian print, broadcast and online news media. In 1789 the various regions of France sent their letters of grievances — *les cahiers de doléances* — to the Estates-General, a form of clerical and popular congress, to discuss expanding freedoms of the press. As Berg points out, the *cahiers* excitedly demanded a free press while the clergy were simultaneously insisting that ‘works which offended religion, the general order of things, public decency and the honour of citizens [be] suppressed’. Although Berg doesn’t explicitly make the point (he doesn’t need to), the reader can’t help thinking that Ray Finkelstein would have felt right at home as an eminent clergyman back in pre-revolutionary Clermont-Ferrand. Or perhaps Finkelstein drew his inspiration from Thomas Hobbes, who declared in 1643: ‘It is utterly essential to the common peace that certain opinions or doctrines not be put before the citizens.’ The arguments for and against free expression in the written and spoken word zig-zag back and forth across the millennia, but what Berg gives us is a compelling and chronologically simple exposition of how key ideas evolved, how certain concepts have been misappropriated, and, most significantly of all, how these ancient ideas are still being ferociously fought over today — most recently in the climate change debate. Intriguingly, many heroes of the free speech brigade turn out, as Berg shows in his crisp analyses of the three Johns (Milton, Wilkes and Stuart Mill), to have been misunderstood. Of Milton, for example, Berg maintains that ‘few who cite [him] as a defence of freedom of the press or freedom of speech appear to have read him’. Berg’s skill lies not only in getting to the heart of the meaning of much of what was written, but also in getting to the heart of the person doing the writing. Colourful characters leap from the pages: the rakish John Wilkes, the priggish Rousseau, the mesmerising ‘Doctor Struensee’. Even Voltaire is seen afresh (Berg cheekily avoids mentioning the ubiquitous ‘I’ll defend to the death your right to say it’ quotation) with his surprising snobbery and arrogance. Ray Finkelstein could do worse than pick up a copy of Chris Berg’s book and flick to the bit where John Stuart Mill says: ‘The peculiar evil of silencing an expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it.’ Or mull over the chapter on *Cato’s Letters*: ‘In those wretched countries where a man cannot call his tongue his own; he can scarce call anything else his own.’ As it happens, Benjamin Constant said all that needed to be said about Finkelstein’s ‘independent’ News Media Council back in 1814: ‘The men to whom you entrust the right to judge opinions are quite as susceptible as others to being misled or corrupted; and the arbitrary power which you will have invested in them can be used against the most necessary truths as well as the most fatal errors.’ Daniel Defoe even penned a ditty that included the lines: ‘Now you fall foul upon the Press, And talk of Regulation,’ while Pierre Bayle, discussing censorship in general, wrote: ‘Judicial bodies that seek to maintain those standards are unable to define what those standards actually are.’ Most pertinent of all to the current social media debate are the words of Russian ‘radical’ Alexander Radishchev: ‘The censorship of what is printed belongs properly to society… Leave what is stupid to the judgment of public opinion; stupidity will find a thousand censors. The most vigilant police cannot check worthless ideas as well as a disgusted public can.’ A few too many grammatical or typographical errors suggest that Berg’s book was rushed out in time to capitalise on the Finkelstein report. If so, the typos are (almost) excusable. Above all, the book is entertaining, informative and, with a sub-head that points to its historical narrative, incredibly topical. ‘I know many books which fatigue, but I know of none which have done real evil,’ maintained Voltaire. Berg’s *In Defence of Freedom of Speech*certainly doesn’t fatigue. And if it happens to fall into the right hands, who knows, it might actually do some good