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Federal Court Appeal Docs: A devastating critique of Canada's Internet
censorship laws (Memorandum of Fact and Law of the Appellant Marc
Lemire)

Lemire’s Memorandum of Fact and Law
A devastating critique of Canada’s Internet censorship laws

The Memorandum of Fact and Law (written by brilliant freedom fighter
Barbara Kulaszka) is a concise review of the ten years of persecution
the Canadian “Human Rights” Commission has dragged Marc Lemire
through for daring to post a single article on his website – which
he did not even write. It is a shocking and clinical review of all
that goes wrong, when an out of control government agency with a
“Nazi fetish” is unleashed. From spying on Canadians with the
possibility of entrapment, to threatening Internet Service Providers
(ISP) to force deletion of content they don’t like.
The Memorandum of Fact and Law is backed up by a mountain of evidence
that would put the OJ Simpson trial to shame! At the Federal Court,
we have filed thick stacks of evidence in what the court calls
“Appeal Books”. These contain the transcripts and evidence from
my massive 3 year hearing before the Canadian Human Rights Tribunal,
where we beat down the censors and the Tribunal found that Section 13
was an affront to Canadian democracy and freedom.

(
http://1.bp.blogspot.com/-3r55jQY1E64/Un8ZKvOh21I/AAAAAAAADdY/RDPiDaTpt14/s1600/image005-724901.jpg
)
Memorandum of Fact and Law of the Appellant Marc Lemire

Part I – Statement of Fact
1. This appeal is from the judgment of Justice Mosley of the
Federal Court allowing the judicial review application of the Canadian
Human Rights Commission (hereinafter “CHRC”) from the decision of
the Canadian Human Rights Tribunal refusing to apply ss. 13(1) and
54(1) and (1.1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6
(as amended 1998, c. 9, s. 28, 2001, c. 41, s. 88 ) (hereinafter
“CHRA”), on the grounds that the provisions violated s. 2(b) of
the Canadian Charter of Rights and Freedoms and could not be justified
by s. 1 thereof.
2. The case arose out of a complaint laid by the respondent
Richard Warman against the appellant Marc Lemire on November 24, 2003,
alleging that Lemire was violating section 13 of the CHRA by
communicating “hate messages” on his website (“the
Freedomsite”) and its message board. The complained of material
consisted mainly of postings on the website’s message board, made by
registered users of the site. [CHRT Decision, at paras. 1, 2, 11 at
Appeal Book (hereinafter “AB”), v. 1, pp. 83, 87] Warman sought a
cease and desist order and a penalty of $7,500.00 against Lemire.
[CHRT Decision, para. 267 at AB, v. 1, p. 173]
3. Warman had been monitoring the Freedomsite for at least a
year, but he made no effort to contact Lemire to complain about the
messages or ask for their removal even though the website and message
board had clear links to report abuses and the usage policy forbade
any postings contrary to Canadian law. At the time he laid the
complaint, he was a lawyer working for the CHRC. [CHRT Decision, para.
115. 116, 140, 143 at AB, v. 1, pp. 122, 123, 132, 133; see AB, v. II,
p. 554 for email to Warman]
4. Lemire received notice of the complaint in March of 2004,
after he had already removed the message board from the website some
months before. After being notified of the complaint, he voluntarily
removed the only other matter complained of, an article entitled
“AIDS Secrets”, in an effort to settle the matter. The CHRC made
no response to Lemire. [CHRT Decision, at para. 14, 188 at AB, v. 1,
p. 87, 149; “AIDS Secret” document found at v. 1, p. 189-195; AB,
v. III, p. 637]
5. The CHRC investigator, Hannya Rizk, was informed by Warman in
September of 2004 that he had come across another website,
jrbooksonline, which he alleged Lemire operated. He asked her not to
tell Lemire about it until the police could take “a good look at
it.” She acceded to this request but admitted in testimony before
the Tribunal that she should have told Lemire about the new
allegations against him. [CHRT Decision, para. 15-17 at AB, v. 1, pp.
88-89; Rizk memo to file at AB, v. II, p. 561]
6. Rizk testified that Warman was the person who trained her at
the CHRC’s offices in how to use two investigative techniques used
in the Lemire case.
7. CHRC hate investigator Dean Steacy interacted with Lemire
anonymously as “Jadewarr” on Stormfront, trying to illicit from
him why he had laid a complaint under s. 13 against the RCMP. Steacy
admitted that depending on the answer Lemire had given, he would have
used it against him in the complaint process. Steacy also posed as a
racist in other investigations using the “Jadewarr” account. [AB,
v. III, pp.830-838; Steacy “Jadewarr” emails, AB, v. II, p.
377-409; “Jadewarr Stormfront postings, v. III, p. 650-654]
8. Steacy also signed up on Freedomsite but this was not
disclosed to Lemire. The CHRC, through its counsel, subsequently
admitted very near the end of the hearing that it was the position of
the CHRC not to disclose the fact that anonymous identities were being
used in s. 13 Internet cases, a violation of the disclosure rules of
the Tribunal and natural justice.
9. The CHRC did not contact Lemire again for over a year after
notifying him of Warman’s complaint. It eventually sent him the
Investigator’s Report on April 15, 2005 which recommended that the
matter be sent to a Tribunal. The report included and relied upon not
only the material which had already been taken down or voluntarily
removed, but also another website, jrbooksonline, and a further
posting allegedly made by Lemire on the Stormfront message board.
[CHRT Decision, para. 15-17 at AB, v. I, pp. 88-8]
10. Repeated requests by Lemire’s counsel for conciliation or
settlement or mediation were ignored by the CHRC and/or refused by
Warman even though the additional material complained of in the
Investigator’s Report on the Freedomsite was voluntarily removed,
when Lemire received the Report. [CHRT Decision, para. 172, 182, 283,
284, 289 at Appeal Bk, Vol. 1, pp. 142,147, 178, 180, 187-188;
Correspondence by Lemire’s lawyer with CHRC documenting requests for
conciliation etc., at AB, v. II, pp. 479-508; AB, v. III, p. 644, 648]
11. This treatment of Lemire mirrored other cases where the CHRC
pursued complainants for years through the process even though the
material and even the websites had been down for months or years.
Examples are:
(a) Warman v. Northern Alliance 2009 CHRT 10 – The case proceeded
to Tribunal in 2009 even though the impugned materials were from 2003
and the website had been down since 2006, from before the time Warman
laid his complaint. [Decision, para. 16] The CHRC pulled out of the
case only at the last moment on the grounds there was nothing to
remediate.
(b) Warman v. Harrison, 2006 CHRT 30 – The case proceeded to
Tribunal even though all of the impugned materials had been removed
from the Freedomsite in early 2004 before Harrison even obtained
notice of the complaint.
(c) Warman v. Wilkinson, 2007 CHRT 27 – The website was taken
down in December 2003, months before the respondent received notice of
the complaint in August of 2004. [para. 45-48]
(d) Warman v. Guille 2008 CHRT 40- When served with the complaint,
the respondent Ms. Guille immediately removed from the Canadian
Heritage Alliance website the material that was possibly in breach of
section 13 of the Act. The complaint nevertheless proceeded to a full
Tribunal hearing. [para. 189]
(e) Warman v.Bahr, 2006 CHRT 52 – In May of 2004, the WCFU
website was taken down [para. 70] Warman filed complaint in June of
2004. [para. 4]

12. Lemire challenged the constitutionality of s. 13 and related
remedial provisions in s. 54 of the CHRA, arguing that the decision of
the Supreme Court of Canada (hereinafter “SCC”) in Canada (Human
Rights Commission) v. Taylor, [1990] 3 SCR 892 was distinguishable
given the amendments to the CHRA adding a penalty and special
compensation remedies to s. 13 and expanding its ambit to the Internet
and computer networks. Taylor had held that s. 13 was a violation of
the constitutional guarantees to freedom of speech under s. 2(b) of
the Canadian Charter of Rights and Freedoms but was a reasonable limit
under s. 1 thereof.
13. The Tribunal dismissed all complaints against Lemire except for
the one article posted on the Freedomsite entitled “AIDS Secrets.”
Only 8 persons from Canada had viewed the article, a number which
would include Lemire, Warman and the investigators at the CHRC. [see:
para. 208 of CHRT Decision at AB, v. I, p. 156]The Tribunal refused to
make any order against Lemire, however, on the grounds that s. 13(1)
in conjunction with s. 54(1) and (1.1) were inconsistent with s. 2(b)
of the Charter which were not a reasonable limit within s. 1 thereof.
14. The Tribunal held that section 13 could no longer be considered
exclusively remedial, preventative and conciliatory in nature which
was at the core of Taylor’s finding that the absence of intent to
discriminate did not so deleteriously impinge on s. 2(b) rights so as
to make intolerable the provision’s limitation on freedom of
expression. As such, it no longer met the Oakes minimum impairment
test under s. 1 of the Charter.
15. The Tribunal based its decision on two grounds:
(a) The penalty provision in s. 54(1)(c) of the CHRA made s. 13
more penal in nature such that it could no longer be considered
exclusively remedial, preventative and conciliatory;
(b) The manner in which s. 13 has been applied evoked a process that
had been anything but conciliatory. In this case, the CHRC dealt with
and referred the complaint to the Tribunal even though the Freedomsite
message board and most of the other material complained of had been
removed. This had occurred in other cases as well. Repeated requests
by Lemire’s counsel for an opportunity to mediate or conciliate a
settlement were refused even though the CHRC had the authority to
appoint a conciliator under s. 47 of the CHRA. Statistics led in
evidence showed that only 4% of s. 13 cases were settled over a ten
year period, while almost the opposite was true for general complaints
under the Act. The CHRC itself published material on its website
stating that while it generally offered to mediate complaints, it did
not do so in the case of hate message complaints. [Decision, paras.
283-286] The Tribunal held that it was entitled to examine the real
and factual context in which s. 13 existed and was applied in
determining whether it remained a reasonable limit under s. 1 of the
Charter. [CHRT Decision, para. 287-290 at AB, v. I, pp. 179-180]

16. On application for judicial review by the CHRC, the Federal Court
held that the Tribunal was correct to decline to apply s. 54(1) (c)
and (1.1) of the CHRA and it issued a declaration that the provisions
were of no force or effect. However, the Federal Court found that the
Tribunal erred in failing to apply s. 13 and ss. 54(1)(a) and (b) of
the CHRA. It therefore allowed the application and remitted the matter
back to the Tribunal to issue a declaration that the “AIDS Secret”
article was in contravention of s. 13 and to exercise its jurisdiction
under ss. 54 (1)(a) or (b) of the CHRA to consider the issuance of a
remedial order against the appellant. [FC Judgment, AB, v. I, p.8-79]

Part II – Statement of Points in Issue
17. The points in issue in this judicial review are the following:
(a) Did the Federal Court err in holding that the Tribunal was not
entitled to examine the real and factual context in which s. 13(1)
existed and was applied in determining whether it remained a
reasonable limit under s. 1 of the Charter?
(b) Did the Federal Court err in holding that the severance of the
penalty provision in s. 54(1)(c) and (1.1) was justified in law, and
if so, whether such severance “saved” the constitutionality of s.
13(1) under s. 1 of the Charter?
(c) Did the Federal Court err in holding that the violation of s.
2(b) of the Charter by s. 13(1) and s. 54 (1) and (1.1) was justified
under s. 1 of the Charter as a reasonable limitation in a free and
democratic society?

Part III – Submissions

Severance of the Penalty Provision:
18. It is submitted that the Federal Court erred in law in holding
that severance of the penalty provisions, which the CHRC conceded was
unconstitutional, rendered s. 13(1) a reasonable limit on s. 2(b)
rights.
19. In its analysis of the legislative history of s. 13 and 53, the
Federal Court misread the CHRA at para. 18-19. At the time Taylor was
decided, the only remedy available was a cease and desist order under
s. 54. Amendments in 1998 added new special compensation of up to
$20,000 and a penalty of $10,000. A further amendment in 2001 extended
the section from telephones to computer networks, including the
Internet. [see Schedule B for Bills amending s. 13 and 54] This
appears to have seriously misled the Court.
20. The SCC held in Schachter v. Canada [1992] 2 S.C.R. 679 that
there is “no easy formula by which a court may decide whether
severance or reading in is appropriate in a given case” [para. 77]
and that “[s]everance...will be warranted only in the clearest of
cases...” [para. 85]
21. The legislative summary of Bill S-5 [which added the penalty
amendments] stated the penalty and special compensation were “a
response to the rising incidence of hate crimes around the world. The
government believes that stronger measures are needed to deter
individualsand organisations from establishing hate lines. It hopes to
accomplish this by allowing victims of such lines to apply for
compensation and subjecting offenders to financial penalty.”
22. The 1998 amendments reflect the fact that Parliament deemed the
importance of the objective to be served by stopping hate was such
that penal sanctions and large special compensation awards were
necessary. It described the objective as the stopping of “hate
crimes”.
23. The penalty clauses reflected the intent and objective of
Parliament in 1998 to chill, punish and deter expression as set out in
s. 13(1). They are the pith and substance of what Parliament wanted to
attain in the legislative scheme around s. 13. Not to be ignored,
also, was the inclusion of large special compensation provisions.
24. However, in 2012, the House of Commons passed Bill C-304,
repealing s. 13 and 54 of the CHRA (
http://4.bp.blogspot.com/-rXyYVD27mVA/Un8ZLzDjrKI/AAAAAAAADeE/SufhYog9row/s1600/image007-731068.jpg
). The Bill is now at second reading before the Senate. The intent of
Parliament in doing so was to protect freedom of speech. This factor
must be considered in the severance analysis since the House of
Commons did not simply repeal the penalty provisions but the entire
scheme contained in s. 13 and 54. [see: Bill C-304]
The infringement of s.2(b) of the Charter by s. 13 and s. 54 is not
saved by s. 1
25. It is submitted that s. 13 and its remaining remedy provisions of
s. 54 fail to meet the proportionality test set out in Oakes. This
failure is amply shown by the evidence of how s. 13 has been used and
applied over the past 30 years. The Federal Court erred in law in
holding that, in a s. 1 analysis, the Tribunal was not entitled to
review this evidence, including rates of conviction, conciliation,
settlement and dismissal. The Court erroneously characterized the
Tribunal’s analysis as a “challenge” to the CHRC’s
administrative jurisdiction which could not be “collaterally
questioned”. [para. 56 and 57]
26. The Federal Court’s reliance on Eldridge v British Columbia
(AG), [1997] 3 SCR 624 at para 20 [Eldridge] was in error. Eldridge
held that administration of a statute could not, in itself, render a
statute unconstitutional. Eldridge dealt with a law which was
constitutional on its face. Taylor found s. 13 to be a violation of s.
2(b) of the Charter. The issue is therefore whether it could be saved
on a s. 1 analysis. Eldridge has no application in these
circumstances.
27. The Tribunal never challenged or reviewed any individual decision
of the CHRC but instead examined patterns of operational outcomes over
a period of some 30 years which showed that s. 13 was not being used
in a manner furthering the remedial objectives of the legislation but
was being used in a manner that was punitive and had a profoundly
chilling effect on freedom of speech. [see Sch. A attached for Charts
summarizing s. 13 cases]
28. In the majority decision in Taylor that s. 13 was proportionate
to its valid objective, the SCC relied repeatedly on the fact that s.
13 was found in human rights legislation whose purpose and procedures
were remedial and conciliatory. [see paras. 37, 53, 61, 69, 75, 83]
The majority specifically relied on “the legislative framework
encouraging a conciliatory settlement” and “the conciliatory
nature of the human rights procedure” in upholding s. 13. [para. 75
and 53 respectively]
29. The minority judgment by McLaughlin J. (as she then was) also
dealt with the issue of whether the CHRA’s remedial procedures could
save the legislation. She wrote:
In my view, it is no answer to the absence of rational connection
between the broad sweep of legislation and its objectives, to say that
in practice, Commissioners and members of tribunals may choose not to
enforce the overbroad aspects of a provision. Rights and freedoms
guaranteed by the Charter cannot be left to the administrative
discretion of those employed by or retained by the state. This is not
a case where constitutional problems are raised only if one presumes
that administrative officials will exercise their discretion in a
manner contrary to the Charter. Rather, the power to infringe the
Charter is delegated explicitly or by necessary implication by the
provision, and so it must stand or fall on its own terms: see Lamer J.
in Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC),
[1989] 1 S.C.R. 1038, at p. 1078. [emphasis added]
30. The CHRC and the Tribunal both were given the explicit right to
infringe the Charter rights of those accused of violating s. 13 and
the 30 year history of how both have used this power is highly
relevant to any s. 1 analysis, as is implicit in the Taylor reasons by
both Dickson, C.J. and McLaughlin, J., both of which considered the
scheme of the CHRA as highly relevant to the s. 1 analysis.
31. When the evidence shows the administration of s. 13 is not in
accord with the purpose and object of the law as contemplated by the
court in Taylor and has affected freedom of speech in a deleterious
manner, that evidence is relevant and admissible in any s. 1 analysis,
contrary to the finding of the Federal Court in this case.
32. The CHRC has aggressively pursued expanding its mandate under s.
13, from telephones to computer networks (Citron v. Zundel, 2002
CanLII 23557 (CHRT), and justifying other measures deleteriously
affecting freedom of speech under s. 27(1) (h) of the CHRA which
provides that the CHRC “shall, so far as is practical and
consistent with the application of Part III, try by persuasion,
publicity or any other means that it considers appropriateto
discourage and reduce discriminatory practices referred to in sections
5 to 14.1.”
33. The Tribunal correctly examined “the real and factual context
in which s. 13 existed” including the procedural operation of “the
legislative framework”. The SCC has held that the Oakes test under
s. 1 must be applied flexibly, having regard to the factual and social
context of each case. [RJR-MacDonald Inc. v. Canada (Attorney
General), [1995] 3 S.C.R. 199, para. 133]
34. The Tribunal had before it the statistics published by the CHRC
itself in its Annual Reports or pursuant to Access to Information
requests which showed beyond doubt that s. 13 is not used in a
remedial or conciliatory fashion. In the 30 year history of the
provision, not one respondent before a Tribunal had ever had a
complaint dismissed prior to Lemire. The rate of settlement prior to
being sent to a Tribunal or while before a Tribunal is the exact
opposite of those for all other complaints made under the CHRA. The
CHRC has appeared at and carried every s. 13 case since its inception
on the grounds that cases under section 13 are of such significant
public interest, analogous to a Crown prosecution. The only
respondents ever jailed for contempt of Tribunal orders are
respondents in s. 13 complaints. [see: Canada (Canadian Human Rights
Commission) v. Heritage Front, [1994] F.C.J. No. 2010; Canada (Human
Rights Commission) v. Taylor, [1980] F.C.J. No. 119; Canada (Canadian
Human Rights Commission) v. Taylor, [1987] 3 F.C. 593; Canada v.
Winnicki [2006] F.C.J. No. 1092 (F.C.); see AB, v. III, p. 809]
35. When Dean Steacy, a lead investigator at the CHRC in hate
messages, was asked what value he gave freedom of speech when he
investigated complaints under s. 13, he replied:
MR. STEACY: Freedom of speech is an American concept, so I don't give
it any value.
MS KULASZKA: Okay. That was a clear answer.
MR. STEACY: It's not my job to give value to an American concept. [AB,
v. III, pp. 764-765]
36. The CHRC handling of the Lemire case showcased the prosecutorial
methods used. The Tribunal made no findings that the CHRC’s actions
were right or wrong. It used these facts to show that the
administration of the provision was not used in the manner and for the
purposes contemplated in Taylor and therefore no longer met the Oakes
test.
37. The Federal Court’s findings of fact regarding the attempts
made by Lemire to obtain conciliation or settlement were in direct
contradiction to the evidence which showed repeated letters and
telephone calls by Lemire’s lawyer to the CHRC to request
conciliation or settlement discussions (
http://blog.freedomsite.org/2012/10/mediation-in-lemire-case-federal-court.html
). The findings of fact made by the Tribunal on this issue were not
challenged by the CHRC in the judicial review. Nevertheless, the
Federal Court took it upon itself to overturn these findings of fact
in the absence of any challenge to them by the CHRC and in the absence
of any evidence of overriding and palpable error. [see paras. 60-61 of
FC Judgment at AB, v.1, p. 44-45][Air Canada Pilots Assoc. v. Kelly,
2012 FCA 209 at para. 40; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2
SCR 235]
38. The Federal Court endorsed the actions of the CHRC in refusing to
accept voluntary removal of allegedly offending material as a reason
not to bring the full force of the law against a respondent. The Court
stated at para. 62: ‘Absent a cease and desist order there was
nothing to prevent the strategic removal of material in violation of
the Act and reposting of it as soon as the complaint had been
withdrawn. [...] Bad faith of this nature would render the process
essentially meaningless and ineffective and is hardly consistent with
the objectives of the legislation.” This finding by the Federal
Court indicates that it accepted that the remedial procedures outlined
in the CHRA should not be used for s. 13 and that any remedial actions
taken by a respondent should be assumed to be made in bad faith to
stymie s. 13 complaints . There was no evidence of bad faith on the
part of Lemire before the Federal Court and it cited none to support
this statement. This was an error in law and directly contradicts the
object and purpose of the CHRA as a remedial statute.
39. The Federal Court judge further held at para. 63 that “Section
13 cases, while few in number, tend to be among the most intractable
handled by the Commission due to the nature of hate speech. They do
not lend themselves easily to mediation or conciliation.” Given this
view of s. 13, the Court should have recognized that hate speech is
best left to the criminal system where defences and procedural
safeguards are provided to protect freedom of speech since remedial
procedures are not appropriate “due to the nature of hate speech.”
In the criminal system, the consent of the Attorney General is
required for prosecution. No such brake exists under s. 13, opening
the way for use of the law by serial complainants. [see the report of
Prof. Richard Moon, which recommended the repeal of s. 13 and leaving
the prosecution of hate propaganda to the criminal law]
40. The CHRC itself has administered s. 13 in a manner that bears no
resemblance to a human rights regime, such as its relationship with
police and the types of investigative techniques it used in s. 13
cases. Internal documents showed that the CHRC regularly communicated
with police forces about respondents, exchanged information pursuant
to an oral agreement and obtained evidence from police that had been
seized in raids pursuant to search warrants under the Criminal Code.
Evidence obtained from police included Crown briefs setting out the
most personal information about respondents, Witness Statements,
information obtained from the CPIC (Canadian Police Information
Centre) system, motor vehicle databases, police surveillance of
meetings and rallies, personal contacts with police by respondents on
other matters, information obtained in executing search warrants
including CDs of personal hard drives seized by police and the police
forensic analysis of such hard drives. Police officers have been
important witnesses in s. 13 hearings such as Warman v. Kouba [2006]
CHRT 50 at para. 88, 89, 95-98; Warman v.Bahr [2006] CHRT 52 at para.
46-60; Warman v. Kulbashian and Richardson, [2006] CHRT 11 at para.
74-90] where police evidence was used to establish the identities of
anonymous posters on the Internet. [AB, v. III, p. 828-829; 839-844;
also see also AB, v. II, pp. 352-376, 591-592; AB, v. III, pp.
638-640, 748, 839-844; for documents showing a continuing and close
relationship between the CHRC and various police services; police also
posted hate messages on Internet forums, see AB, v. II, p. 555] The
CHRC also wished to obtain “more direct access” to confidential
police investigative databases such as CPIC. [AB, v. II, p. 361]
41. Under s. 8(2)(f) of the Privacy Act, R.S.C. 1985, c. P-21, the
Minister of Justice may sign agreements with provinces allowing them
access to personal information on individuals collected by the Federal
government. Evidence showed that such an agreement had been signed
with Manitoba. This means Canadians subject to a s. 13 complaint are
subject to having any information they provide sent to police forces
across the country without their knowledge or consent or any warnings
whatsoever. The CHRCalso justifies assisting police under s. 27 of the
CHRA which allows it to assist any government organization.[AB, v. II,
pp. 362-364; see AB, v. III, p. 640-641 for the type of information
Harrison provided; AB, v. III, p. 766; 772-773]
42. Section 13 investigators have been trained in computer
investigative techniques given by the Canadian Police College. They
have attempted to obtain information from s. 13 respondents using
false identities and posing as racists. There were attempts by CHRC
investigator Dean Steacy to “chat” with Lemire using the pseudonym
“Jadewarr” with respect to a complaint Lemire had laid with the
CHRC and it was admitted that his answer could have been used against
him. [AB, v. II, p. 377-409; AB, v. III, pp. 650, 823-827, 830-838]
43. In this case, Warman laid criminal complaints against Lemire and
Harrison after laying the section 13 complaint. Police contacted the
CHRC to get copies of evidence but didn’t follow up after being
requested to put it in writing. This was not disclosed to Lemire for
over three years, nor was there any notice that what he provided to
the CHRC might be handed over to police. [AB, v. II, pp. 510-511; AB,
v. III, 635, 638-639, 665, 731-735]
44. The CHRC has not been even-handed in its use of s. 13; it has
targeted only certain types of speech and certain types of
individuals. All respondents have been white, generally young and
poor. Almost all could not afford a lawyer. The CHRC has consistently
administratively dismissed complaints against major corporations
(AOL), police (RCMP) organizations which it considers stakeholders
(CAERS) and its director (Alan Dutton) or against Richard Warman
himself. When CAERS and AOL agreed to take remedial measures such as
installing filters, the complaints against them were dismissed. The
CHRC gave no such options to Lemire, even though in his case the
message board was already down. The history of the administration of
s. 13 indicates that the s. 13 is an unreasonable limit on freedom of
expression as respondents are treated differently depending on who
they are. [AB, v. II, pp. 340-350 [Sec 13 spreadsheet]; pp. 428-456
[complaints dismissed]; AB, v. III, pp.749-762; 763 [Steacy testimony
on CAERS complaint; see Charts in Sch. A attached.
45. The Federal Court took notice of the legislative fact that Bill
C-304, entitled An Act to amend the Canadian Human Rights Act
(protecting freedom), received third reading in the House of Commons
on June 6, 2012, repealing s. 13 and its related remedies in s. 54. It
recognized that this “is part of the social and political context of
the legislation that must be considered when applying the Oakes
test...” [para. 86-87] The Court nevertheless refused to give this
measure any weight in its s. 1 analysis and erred in doing so.
46. At third reading of Bill-C-304, MP Brian Storsethstated in the
House of Commons:
My private member's bill C-304 would help protect and enhance this
fundamental freedom, because without freedom of speech, freedom of
religion and freedom of assembly hold no value.
Freedom of speech truly is the bedrock upon which all other freedoms
are based. Bill C-304 calls for the repeal of section 13 of the
Canadian Human Rights Act in order to ensure that freedom of speech is
preserved and promoted through an open, transparent and democratic
process, which is the Criminal Code of Canada. [May 30, 2012]

47. The debates in the House of Commons showed that Parliament
believed the repeal of s. 13 was necessary to protect freedom of
speech and that hate speech should be dealt with by the criminal law.
[see Globe & Mail editorial at AB, v. II, p. 410 for type of public
criticism Parliament was responding to; the CHRC has been well aware
of the Canadian public’s wish not to have s. 13 apply to the
Internet, see AB, v. III, p. 621-633] The Federal Court erred in
failing to respect and weigh this significant factor in its s. 1
analysis. Parliament was responding to the public outrage over s.
13’s censorship of Internet speech and rightfully voted to repeal
the law.

Extension of s. 13(1) from telephone tape messages to the Internet
48. It is submitted that the Federal Court erred in law in holding
that the extension of s. 13(1) from the telephone to computer
communications did not render the provision an unjustifiable
limitation on freedom of expression under s. 1 of the Charter.
49. One of the primary factors which Taylor took into consideration
in upholding s. 13(1), as it then was, was the medium of the
telephone. Dickson C.J. held that the combination of the telephone and
hate material was particularly insidious because it was “one which
gives the listener the impression of direct, personal, almost private,
contact by the speaker, provides no realistic means of questioning the
information or views presented and is subject to no counter-argument
within that particular communications context.” [para. 78-80]
50. Dickson C.J. adopted the findings in the Tribunal of Nealy v.
Johnston, [1989] T.D. 10/89 where expert evidence by a communications
professor, Rene Jean Ravault, established that the medium by which a
communication is made is a fundamental aspect of its effect on the
listener.
51. Dr. Ravault had given similar expert testimony before the
Tribunal in the Taylor case which was accepted by it and summarized in
its decision:
The Medium that is Used to Transmit the Communication: There is a
difference between the effect of words spoken over the radio and words
spoken over the telephone. The latter is more personalized and the
degree of concentration is stronger. A tape recorded message, however,
is not as effective as the exchange which takes place in a telephone
conversation. [Smith v.Taylor [1979] T.D. 1/79, p. 15]

52. The communications medium is therefore an essential part of the
context in the analysis of s. 13(1) under s. 1 of the Charter and the
fundamental change in that context by the extension to the Internet
distinguishes the law as it stood at the time Taylor was decided.

S. 13 now extends to all communication media
53. When the Taylor decision was made in 1990, s. 13 applied only to
the telephone, a medium which at the time was limited to voice
communications. The legislation did not limit any other medium or type
of expression, such as newspapers, television, journals, or books.
54. The types of expression covered now by the legislation includes
audio and video content, books, music, plays, documentaries,
government documents and information, political speeches, academic and
other journals, newspapers, wire services and magazines, voice over
Internet (VoIP), blogs, message boards or discussion boards, and real
time data such as current stock market quotes, social media such as
Twitter and Facebook. S. 13 also applies to smart phones, which can
communicate text messages, video and photos to a friend across a room
or around the world. This intrusion into freedom of expression,
without any defences of truth, fair comment, political and public
interest speech, vastly increases the chilling effect of the law and
is not an acceptable limitation on s.2(b). [AB, v. II, pp. 457-468
(Klatt expert report re Internet)]
Internet and computer mediated communications are interactive and
dynamic
55. The Internet provides every means of questioning information and
of counter arguing, the two vital factors missing in the telephone
message context as noted by the majority judgement in Taylor.
Canadians can put up websites, write comments on message boards or
comment boxes, write comments which can be distributed on websites or
sent out by email, tweets or text messaging. Message boards and blogs
give visitors the immediate ability to respond to other messages with
equal prominence as the original posting. [see AB,v. 1, pp. 198-200
and AB, v. II, 469-478, AB v. III, pp. 621-633 for examples of message
boards]
56. The Internet gives the free opportunity to respond and full
opportunity for the educative functions of the CHRC and any other
group which wishes to rebut what they consider to be “hate.” Dr.
Karen Mock, the expert called by the CHRC before the Tribunal,
repeatedly testified that education was an essential aspect of
fighting hateful views. [AB, v. III, pp. 691-696; see “The Ethics
of Controversy” (AB, v. I, p. 259) and “Attacking Brandenburg with
History”, (AB, v. II, p. 294) “Censorship: Still a burning
issue” (AB, v. II, p. 336) for views on the viability of censorship]
Section 13(1) now applies to the media and the press
57. Newspapers, radio and TV stations and magazines are published on
the Internet so that any limitation on freedom of expression on the
Internet includes limitations on freedom of the media and the press,
something which was not an issue with telephone answering machines and
their approximately one minute messages. This is an unacceptable
violation of section 2 (b) of the Charter which cannot be justified
under s. 1.
58. In Grant v. Torstar Corp.[2009] S.C.J. No. 61 the SCC reiterated
the principles contained in the major trilogy of cases affirming the
importance freedom of expression and freedom of the press. It held:
42. Freedom of expression and respect for vigorous debate on matters
of public interest have long been seen as fundamental to Canadian
democracy. Many years before the Charter this Court, in the Reference
re Alberta Statutes, [1938] S.C.R. 100, per Duff C.J., suggested that
the Canadian Constitution contained an implied right of free
expression on political matters. That principle, affirmed in cases
like Saumur v. City of Quebec, [1953] 2 S.C.R. 299, and Switzman v.
Elbling, [1957] S.C.R. 285, has stood the test of time.
59. By failing to provide the basic defences of fair comment,
responsible journalism, truth and lack of intent to s. 13(1), in a
communications context where the press and media publish daily, the
provision is no longer a reasonable limit on freedom of expression.
The article “AIDs Secrets”, found to contravene s. 13(1) in this
case was a discussion of matters of public interest on AIDS which
should not have been subject to censorship. [see Lund v. Boissoin,
2012 ABCA 300 for a discussion of the lack of clarify of such laws and
the implications for discussions of matters of public policy and
interest]
Internet Service Providers and common carrier status
60. One of the most insidious impacts on freedom of expression arises
from the fact that access to the Internet is provided by Internet
Service Providers or ISP’s, which may or may not have common carrier
status exempting them from s. 13.
61. When section 13 was limited to messages communicated by
telephone, access to the messages could not be terminated simply by
pressuring the telephone company to disconnect the telephone service.
62. Section 36 of the Telecommunications Act 1993, S.C. 1993, c. 38
provides:
36. Except where the Commission approves otherwise, a Canadian carrier
shall not control the content or influence the meaning or purpose of
telecommunications carried by it for the public.
63. Section 13(1) was enacted at the request of Ontario’s Attorney
General who had initially attempted to shut down John Ross Taylor’s
telephone messages by pressuring Bell Canada to disconnect his
telephone service. [AB, v. III, pp. 655-663] Bell Canada had refused,
citing its common carrier status under its act of incorporation and
the prohibition on censoring the content of its customer’s
communications. The common carrier status relied upon by Bell Canada
remains intact today under section 36 of the Telecommunications Act.
64. Once section 13(1) was enacted, the common carrier status of
telephone companies forced those wishing to shut down telephone
hotlines to complain to the CHRC and undergo the procedure set out in
the statute which included a public hearing and an opportunity for the
respondent to make submissions and tender evidence.
65. This situation no longer exists with the extension of section
13(1) to computer communications, including the Internet. ISPs were
quickly targeted by the CHRC and by NGOs to remove customers’
material unilaterally. They also became liable themselves under s.13
[see Warman v. Kulbashian, supra, where a small ISP was held liable].
66. Beginning in 1994, the CHRC began writing to and meeting with
ISPs regarding how to “deal with” the posting of material that
might contravene s. 13. The CHRC has continued this pressure on ISPs
and expanded it to include foreign websites and ISPs having no
relation to Canada and over which they have no jurisdiction. Letters
written to foreign websites and ISPs ask them to take
“appropriate” action. It is a form of naked intimidation which the
CHRC justifies under s. 27(h) of the CHRA to censor speech. [AB, v.
II, pp. 424, 572-590, 593-603; AB, v. III, pp. 609-619, 796-808
[freenets], 664 [zundelsite], 779-790]
67. All contacts with ISPs are made under the authority of section
27(h) of the CHRA as part of the “persuasive part” of its mandate.
A senior CHRC policy analyst, Harvey Goldberg, testified that he
believed it was appropriate for the CHRC to seek to censor material
before a Tribunal hearing was held. [AB, v. III, pp. 736-738, 739-740;
767-771; 800-804; 813-814]
68. Goldberg testified the CHRC wanted to work “proactively”
using the powers under s.27(h) and that meant hate messages being
dealt with before the problem reached the stage of a complaint being
laid. The goal of the CHRC meeting with ISPs was to set up systems to
avoid complaints and avoid the CHRT. This included the use of filters
by ISPs, acceptable use policies and complaints procedure models
having the goal of avoiding litigation. [AB, v. III, pp. 813-814;
818-819]
69. The CHRC expected ISPs to know what material constituted hate
under section 13 or to consult their legal departments. [AB, v. III,
pp. 815-819]Goldberg, however, also justified articles attacking
various ideologies under s. 27[AB, v. III, p. 774-776]
70. The guarantee to freedom of speech has been gravely damaged by
the extension of section 13 to the Internet. Without the protection of
common carrier status, ISPs are extremely vulnerable to complaints
under section 13 unless they quickly remove material upon complaint.
If they do not remove the material, ISPs have found themselves named
in complaints under s. 13 for material which they played no part in
writing or posting but which simply appear on websites they host as
part of their business.
71. A complaint against the ISP, AOL Canada was dismissed because it
took “appropriate” actions: it removed the messages, changed its
acceptable use policies, put keyword filters on and simplified the
process for an individual to complain. The filter prevented certain
language from being posted. The changes in the user policies made it
clear that violators would be cut off from their AOL account in the
event of a violation. [AB, v. III, pp. 740-747]
72. But Dr. Tsesis, the expert called for the Attorney General of
Canada, testified that such filters cast “too wide a net” as a
means of blocking content, for instance, because the banning of such
words as “breast” blocked not only pornography but also sites with
information on breast cancer. The CBC had attempted to block
anti-Semitic sites by banning the word “Jew” etc., but thereby
also banned messages favourable to Israel that were not anti-Semitic.
[CHRT Decision, paras. 117-120] By forcing ISPs to install filters,
the CHRC is causing, behind closed doors, extreme damage to freedom of
expression. As stated by the Tribunal, “Using similar word blocks
regarding hate propaganda could also prevent researchers from reaching
necessary historical and sociological information on the
Internet.”[CHRT Decision, para. 120 at AB, v. I, p. 124; CBC article
at AB, v. II, p. 469]
73. Influential ethnic organizations such as the Canadian Jewish
Congress lobbied the CHRC to partner with Canadian police services to
“analyze foreign-based website to make a determination as to whether
a particular site would, if it or its owner was located in Canada, be
deemed sufficiently problematic to be referred to tribunal. Such a
determination could then be passed to Canadian Internet Service
Providers who would then block access.” [AB, v. II, p. 415]
74. Although the CHRC refused this proposal, it shows how vulnerable
ISPs are to those who are determined to censor material on the
Internet using section 13(1) as a backdoor to censorship. [AB, v. II,
pp. 351, 416-423 for corres. between CJC and CHRC]
75. The effect of section 13 is devastating because ISPs cannot and
will not resist pressure on them to remove material on their servers
alleged to be hate. ISPs do not have the expertise or interest to
determine what “hate” under section 13 is and what is not. They
will simply remove the material if it is causing trouble for the
business. [AB, v. III, pp. 680-684 for Warman testimony on using
corporate pressures; see CJC urges members to report “hate”
websites, even if they are foreign based at AB, v. III, p. 620. See
also: Warman v. Winnicki, supra, at para 27, Warman v. Kyburz, [2003]
CHRT 18 at para. 13, 35 ]
Lack of jurisdiction over international communications
76. Harvey Goldberg, policy analyst for the CHRC, testified that the
CHRC could not enforce s. 13 over foreign websites or ISPs and that
this was a major problem in meaningful enforcement. He acknowledged
that the “Zundelsite”, which contained material for which a cease
and desist order was made in 2001, was still operational in the USA
even though Zundel was in jail. [see AB, Vol. III, pp. 777-778;
793-795; 810-812; Citron v. Zundel, supra]
77. Tribunals have likewise recognized that in the medium of the
Internet, it is difficult to fashion meaningful remedies since
material can appear anywhere in the world and be replicated anywhere
in the world. [see Warman v. Kyburz, 2003 CHRT 18, para. 81 and Citron
v. Zundel, supra, at paras. 295-298]
78. The appellant adopts the s. 1 reasoning in the dissenting opinion
in Taylor, that:
Rational connection must be viewed, not only from the perspective of
the intention of the legislators, but from the perspective of whether
in fact the law is likely to accomplish its objectives. Latitude must
be accorded to the legislators, but where it appears that the law is
unlikely to achieve the ends or indeed, may have a contrary effect to
the objectives by which it is sought to be justified, it cannot be
said to be rationally connected to those objectives.

The failure to provide any defences including lack of intent, truth,
fair comment
79. The extension of s. 13(1) to the Internet justifies revisiting
the finding in Taylor regarding the failure to provide any defences
such as truth, lack of intent and fair comment in the proportionality
test under s. 1. The communications context of telephone answering
machines meant that the messages subject to the provision were
pre-recorded voice tapes of approximately one minute in length. [see:
Smith, supra, p. 2] The communications context of the Internet
includes limitless material from books and journals, historical
documents, newspapers and TV programs. It includes religious tracts
such as the Bible.
80. The subjection of the full spectrum of knowledge to s. 13(1),
where there are no defences, especially that of truth, is an
extraordinary violation of traditional notions of freedom of
expression. It is not a reasonable limit on s. 2(b) rights in the
communications context of the Internet.
81. The extension to the medium has allowed s. 13 to catch messages,
in the Harrison case, which were posted at a rate of several every few
minutes, many of which were nothing more than angry rants. The
chilling effect of catching such irrelevant rants far outweighs the
benefit. [see AB, v. II, p. 562]
82. Dr. Mock gave testimony that truth is an essential element in
deciding whether expression was, as she defined it, hatred or
contempt. She also testified that it was possible for someone to
experience hate or contempt when hearing truthful statements. [AB, v.
III, p. 720-721] She agreed with the proposition that to make the
distinction between criticism and contempt, one had to decide whether
what was being said was factually true or not. [AB, v. III, pp. 719]
83. She testified that in determining how far a person was allowed to
go in criticizing a group before it became contempt, one of the
factors to be examined was whether it was “lies that are being
promoted.” [AB, v. III, p. 716] She testified that it would be
appropriate in a section 13(1) hearing to give the respondent the
opportunity to attempt to prove the truth of the premises upon which a
respondent had based his expression. [AB, v. III, 720-721] It was the
“constant repetition of half truths, lies, exaggerations,
stereotypes, etc.” that created a climate where people were
dehumanized. [AB, v. III, p. 685]
84. Dr. Tsesis testified that the assessment of truth or falsity of a
statement would be a “critical part” of the assessment of the
nature of an expression and its effect. He testified: “I think it
would only be logical for a court to inquire into its truth.” [AB,
v. III, p. 724] He said that a person should be allowed to prove that
a statement was true, even though it exposed an identifiable group to
hatred. [AB, v. III, pp. 725-726]
85. Dr. Downs, an expert called by Lemire, testified: “Truth the
often inconvenient...offence alone can't be grounds for censorship
unless we want to end up not being able to discover new truths.”
[AB, v. III, p. 727] He also quoted Deborah Lipstadt, who opposed laws
against Holocaust denial, on the grounds that it harmed the
truth-seeking process. By placing Holocaust denial into the hands of
the state for punitive enforcement it was taking it out of the truth
determination process. [AB, v. II, p. 563; AB v. III, pp. 728-730; see
also “Illiberal Europe” at AB, v. II, p. 567 for the extraordinary
chilling effect of such laws.]
86. It is respectfully submitted that this testimony by the
government’s own witnesses shows that truth is an essential part of
determining whether in fact words complained of are “hate” or
expose to “hate.” By failing to provide this important defence, as
well as any other standard defences such as fair comment, s. 13(1)
fails to meet the proportionality test of section 1 of the Charter.
87. The Federal Court failed to consider any of these relevant
factors in its decision.
Subjectivity and vagueness of “hatred” and “contempt”
88. In the dissenting judgment in Taylor, Justice McLaughlin (as she
then was) stated:
“Where does dislike leave off and hatred or contempt begin? The use
of these words in s. 13(1) opens the door to investigations and
inquiries for matters which have more to do with dislike than
discrimination. The phrase does not assist in sending a clear and
precise indication to members of society as to what the limits of
impugned speech are. In short, by using such vague, emotive terms
without definition, the state necessarily incurs the risk of catching
within the ambit of the regulated area expression falling short of
hatred.” [...]
“Moreover, the chilling effect of leaving overbroad provisions "on
the books" cannot be ignored. While the chilling effect of human
rights legislation is likely to be less significant than that of a
criminal prohibition, the vagueness of the law means it may well deter
more conduct than can legitimately be targeted, given its
objectives.”
89. The Lemire complaint and its process have validated the reasoning
of McLaughlin J. regarding the vagueness of the words “hatred” and
“contempt.” The complaint included two entire websites, the
Freedomsite and JRBooksOnline [see AB, v. II, p. 509], which comprised
thousands of pages. The chilling effect on speech on the Internet has
been incalculable. It is no comfort that after years before the CHRC
and the Tribunal, the appellant was found guilty of one short essay,
when he was prosecuted and forced to defend against such a massive
complaint.

90. The evidence before the Tribunal proved the correctness of
McLaughlin J.’s dissenting judgment on this issue. The evidence of
Dr. Persinger established that “hate” was simply a label that
people applied to aversive experiences. In neuropsychological studies,
“hate” was not a term that was used. The term used is “aversive
stimuli.” [AB, v. III, 708-709]It is the culture that defines
aversive stimuli. Stress is influenced by how the person perceives it,
the label the society gives it and how they are reinforced for it.
Problems arose when the individual did not have the tools and
strategies that allowed them to adapt and respond. [AB, v. III, pp.
708-711]
91. Dr. Mock (like Mr. Goldberg) testified that the services of an
expert would be required in identifying “hate” in fine cases and
that anyone publishing would especially want to consult his
lawyer.[CHRT Decision, para. 121 at AB, v. I, pp. 124-125; Mock
testimony at AB, v. III, p. 715]
92. People being held liable under s. 13(1), however, are not
publishing houses or newspapers with legal departments and editorial
control. The Internet is peopled by ordinary individuals. Any word
that requires the services of an expert and a lawyer sitting by the
computer is not a definable word.
93. The meaningless of the word “hate” is shown by the almost
limitless types of communications alleged before Tribunals to be
“hate”. They include jokes, books, essays, historical commentary,
message board postings, cartoons and poems. The range of articles in
the Lemire complaint alone shows that no one can predict what could be
caught by the legislation.
Rational connection of s. 13 to the alleged harm caused by hate
94. In Taylor, the SCC held that people subjected to racial or
religious hatred may suffer substantial psychological distress. [para.
37, 41, 42] It did not in fact have any expert evidence before it on
this issue but presumed this type of harm could be caused by hate
propaganda and that the objective of the legislation was therefore a
reasonable limit on freedom of expression.

95. It is submitted that this Court is justified in revisiting the
issue of harm given the extension of s. 13(1) to an electronic,
dynamic medium of communication which is fundamentally different from
pre-recorded telephone messages. What harm resulted from a taped voice
recording cannot be presumed to be the same in a dynamic and
interactive medium such as the Internet where people can easily rebut
and respond to what they perceive to be hate and where opposing
viewpoints are abundant.
96. Dr. Persinger testified that he had read that part of the report
of the Cohen Committee written by Harry Kaufmann, PhD. which asserted
that individuals subjected to racial or religious hatred may suffer
substantial psychological distress resulting in a loss of self-esteem
and feelings of anger. He testified that Kaufmann’s conclusions were
out of date and based on social psychological theories which, in large
part, had now been shown to be inaccurate. [AB, v. III, pp. 705-707;
see AB, v. I, p. 251 for an example of modern research]
97. Persinger wrote in his expert report that there was no direct
experimental evidence that listening to verbal behaviour that directly
or indirectly identified that experient diminished to any significant
extent the self-esteem of a person. The studies cited by Kaufmann
were not experimental studies but correlational studies.
Correlational studies meant that there were two variables and they
were related. It did not mean cause and effect. In these correlational
studies, even the strength of the effects was extremely small. [AB, v.
III, pp. 712-714; Expert report at AB, v. I, p. 242]
98. The term “psychological distress” used by Kaufmann, and
quoted by the majority in Taylor, was so vague that it was
meaningless. Kaufmann’s conclusion that hate propaganda produced
feelings of anger and outrage in people ignored two critical
controlling variables: firstly, that frustrative aggression occurred
when there was no opportunity to respond freely and secondly, when
behaviour (including beliefs) that had been rewarded by group
consensus was no longer rewarded, it was followed by outrage and
emotive behaviour. [AB, v. III, p. 704; AB, v. I, p. 242]
99. Persinger’s evidence established that the conclusions regarding
the harm alleged to result from hate propaganda have never been proven
in cause and effect studies. In the correlational studies cited by
both Kaufmann and Dr. Mock, the effect was so small as to be
meaningless. [AB, v. I, pp. 712-714]
100. Dr. Mock relied on anecdotal examples to
prove harm which would not be addressed by s. 13– i.e. - post-911
focus groups of Muslims who stated their identity was being affected
by things they were reading in newspapers and by slurs and
name-calling at school and the supermarket. [AB, v. III, pp. 686-690]
The rationality of hate laws must be put in question when the CHRC’s
own expert repeatedly pointed out that people suffer the alleged harm
of hate every day in their lives simply by going to the supermarket or
reading newspapers.
101. One of the studies cited by Dr. Mock,
however, the Bryant-Davis study, contained statements on the state of
research in this area which are highly relevant to the issue of harm
caused by hate propaganda. These showed that few researchers
conceptualized racist incidents as forms of trauma and therefore there
are few studies examining racist incidents as such. Further, the
Diagnostic and Statistical Manual of Mental Disorders of the American
Psychiatric Association (4th ed., 2000) limited the definition of
trauma to incidents that are physical in nature, such as serious
injury, rape, and assault, but excludes verbal abuse, emotional abuse
and social alienation, such as nonphysical racist incidents. [AB, v.
I, pp. 220-241]
102. The study made several important comments
about how people respond to racist incidents:
“While not all persons who experience racist incidents will be
traumatized, some persons develop posttrauma symptoms in response to
racist incidents.” [AB, v. I, p. 220]
“No universal, so-called cut and dried responses to psychological
traumas exist. Even acknowledged traumas such as child sexual abuse
may produce sequelae of varying toxicity in survivors.” [p. 221]
“Individual differences in personality, resilience, coping style,
unique personal experiences, strength of ethnic self-identification,
family closeness, etc. may buffer or mediate responses to
psychologically toxic events.” [p. 222] “We have observed that
some survivors of racism report feeling empowered by their
experiences.” [p. 222]
103. The Bryant-Davis paper shows that the
response of people to what is termed “hate” will be highly
individualized. Dr. Mock agreed that individual differences in
personality and coping styles had the effect of mediating responses to
psychologically toxic events. She stated that there was no study of
the percentage of people fitting into any of those categories. [AB, v.
III, p. 717] She agreed that the paper recognized that an
individual’s strength of ethnic self-identification was a very
important variable in how someone would react to material as being
hate or not. [AB, v. III, pp. 699-700]An example of this was Dr.
Mock’s own reaction to a letter by Ernst Zundel published in a