Your Daily Nazi: Life After Section 13

 A bit of a miscellany this morning.  Firstly, stating the obvious:

Vancouver-based Alan Dutton helped lobby for the 1996 creation of the B.C. Hate Crime Team that brings together law enforcement, Crown prosecutors and provincial bureaucrats to combat hate crimes.

Dutton argues abolishing the law will embolden hatemongers to re-organize and strengthen the white nationalist movement in Canada.

"The danger here is that they're going to believe that they have fertile ground now," said Dutton, who chairs the Canadian Anti-Racism Education and Research Society.

Speaking with B'nai Brith folks at the Lemire hearing, it is pretty clear they think Section 13 is dead via bill C-304 and are trying to work out how to protect the CDN Jewish community through whatever criminal code provisions remain available.  BB CEO Frank Dimant has said as much here.  The problem is that it has been historically difficult to get the police to lay charges, and that (as I understand it) any changes to the code will themselves be vulnerable to a constitutional challenge (more vulnerable than S13, perhaps).

On a slightly different topic, Joe Brean buries the lede in this story:

Neither the analysis by Digital Wyzdom, nor a subsequent one, turned up any evidence that Mr. Warman had written the message at the heart of the [Levant] libel suit.

Levant's defense, and the defense of the other bloggers in the various lawsuits that Richard Warman has brought against them, turned on Warman's having written "The Cools Post".  It was already pretty obvious that he had not; now it is even more so.  These various legal actions are all effectively done, but for the paying out of damages.

Your Daily Nazi: My Day Among The Nazis

So yesterday I went off to visit room 4D at 180 Queen West for the denouement of Warman Vs. Lemire.  I wound up sitting two seats over from Lemire, who once threatened to sue me, and right in front of the Fourniers (Connie and Mark), who once tried to get me fired.  The guy who threatened to kill me didn't show up this time, which frankly made the bathroom breaks a little more comfortable.

As for Lemire, let's just say that he's gotten big.  Though he's twitchy: sighing, eye-rolling, consulting his notes and passing notes to his supporters.  Indeed there was a lot of sighing and eye-rolling during the government side of the presentation. A lot of German accents too, a lot of gray hair.  Connie's still hot, but Mark is looking positively dessicated these days.  During the break I had lunch with Richard Warman and the gang from B'nai Brith; somebody joked that I was the only person in the court that wasn't a lawyer or a Nazi.  Someone else noted that this looked like a sequel to the Zundel trial, with all the players 15 years older.

As to the presentations, they generally went according to plan, with the pro-HRC side arguing that all that should be on the table is the  severing of Section 13's penalty provisions.  But there were a few interesting twists, or at least arguments I haven't heard before.  The young gal from the African Canadian Legal clinic (Moya Teklu) argued that there has been so little analysis of the CHRC's actual behavior that it would have been impossible for Athanasios D. Hadjis (the tribunal chair that had ruled for Lemire last go-round) to know whether this behavior had changed over time--and thus whether it had become less conciliatory, more litigious. She also has a tattoo on the back of her neck, so they clearly aren't barriers to success anymore.   Richard Warman argued from the transcripts of the earlier hearing that in fact he had been open to the possibility of settling with Lemire, contra Hadjis' opinion.

Barbara Kulaszka was a rambling disaster, and the judge was quite short with her.  The fellow from the CCLA seemed more coherent, arguing that Hadjis did have authority to make a constitutional ruling (something the CHRC contested).  Though I don't think anyone made a convincing case that either the Internet or the addition of penalty provisions has changed things so much that a Section 13 repeal was the only available option.  But that could be just me.  I missed Doug Christie's performance, but did see him parading about outside the court-room in his black cowboy hat, so that is maybe the important thing.

Most of my day was spent staring at the backs of heads suffering varying degrees of hair-loss, so Judge Mosley was by far the most entertaining thing in the room.  He is possessed of an excellent poker face, and didn't speak much.  You could tell when he was going to, though, because he would start moving his facial muscles, making faces, in effect, several seconds in advance as a kind of warm-up.  To me, he appeared to grind far more heavily upon the Lemire side, and criticized the AG's non-appearance and some of Hadjis more obscure lines of reasoning. 

To end off, here's a shot of Richard Warman and me in front of the court-house (from the NP story):

Richard is the guy on the right.  I'm wearing my dad's old barn jacket (you can just barely see the sleeve).

What The CHRC Will Argue

...in its challenge to the Hadjis decision in Warman Vs. Lemire:

...which seems to be the legal consensus on the issue. It will also argue that if Hadjis really wanted to wanted to brand section s54.1 (the penalty provision) unconstitutional, he should have put a little more work into the analysis of it than is evident in his decision.

And Away We Go

On Thursday, October 1, 2009, the Canadian Human Rights Commission applied for Judicial Review of the Canadian Human Rights Tribunal's decision in the Warman v. Lemire case before the Federal Court.

I guess some folks will have to ream out Stephen Harper and Rob Nicholson even harder.

Canadian Human Rights Commision: Section 13 Still Constitutional, Will Still Pursue Hate Messaging Cases

An email from CHRC attorney Daniel Poulin, expanding on this earlier email:

Dear Tribunal and Parties,

We write further to the correspondence that has been exchanged by the parties in regards to the impact of the Warman v Lemire decision recently rendered by the Tribunal.

It is the position of the Commission submits that the Tribunal should proceed on hearing the matter pending before it in the present case. Consequently, the matter should neither be adjourned sine die or simply dismissed.

In Warman v. Lemire, the Tribunal found that the penalty provision in s. 54(1)(c) was not a reasonable limit on freedom of expression under the Charter. In the instant case, the Commission will no longer be seeking a penalty under 54(1)(c) of the Act as was originally included in its Statement of Particulars. The Commission therefore respectfully submits that the Tribunal ought to proceed with a hearing of the Complaint to determine if section 13 has been infringed, and if so, to exercise its discretion under s. 54(1)(a).

Yours truly, Daniel Poulin

Legal Counsel

Canadian Human Rights Commission

..which tells us what the CHRC wants to do in Abrams V. Topham, and may do in future S 13 cases, at least until Warman V. Lemire issues are hashed out: simply drop all requests for penalties under section 54 and continue to ask for a determination as to whether S13 has been infringed.

S.13 being the hate messages provision in the CHRA.

So: the CHRC will still (for the time being) process complaints re hate messaging. It will treat section 13 as constitutionally okay, and drop appeals to section 54. Which is what most people, including me, expected. The core of the law is 13; 54 is a frill.

Warman V. Lemire: Appeal Decision Today?

An email from CHRC lawyer Daniel Poulin, addressed to Doug Christie, and reproduced at FreeDominion:

From: 'DANIEL POULIN'

Date: September 29, 2009 1:11:57 PM PDT (CA)

To: , ,
Cc: , 'DANIELLE DESROSIERS' , , , ,

Subject: Re: Abrams and BBC v. Topham and Radical Press

Mr Christie,

Thank you for your correspondence of today. I fully understand the situation you are in about keeping these dates open since I am exactly in the same position. It would be surprising that I could be 'inconsiderate' towards myself (if your comment was directed at myself or the Commission of course - which is very likely since you refer to a government salary).

It is my intention to provide the Commission's position by tomorrow.

Daniel Poulin
Legal Counsel
Canadian Human Rights Commission

'Doug Christie Law Office' 9/29/2009 :40:23 PM
Canadian Free Speech League
P.O. Box 101, 255 Menzies Street
Victoria, B.C. V8V 2G6
Fax: 250-479-3294 Tel: 250-888-3410

Mr. Poulin was asked to comment on the status of the Abrams and BBC v. Topham and Radical Press case, which is the last (I think) section 13 case in the CHRC pipeline, in light of Warman v. Lemire. The date on the email is yesterday, so I presume we will be hearing his response sometime today.

I suspect the CHRC will appeal, but we shall see.

Lemire Case: The Upshot

Section 13 will not go away, and soon will revert to the form found constitutional in the Taylor case.

...which means minus the section 54 of the Canadian Human Rights Act (should this be found to be unconsitutional on appeal).

Even while we're waiting for an appeal of the Hadjis decision, I suspect any new s13 cases will go forward without an attempt at extracting S54 penalties from the respondent, and with greater attempts at "mediation" from the staff of the various HRCs. After all, the point is or should be that the offending material is removed from circulation. And, even without the S54 penalties, once a cease and desist order has been issued by a tribunal, ignoring that order can lead to a finding of "contempt" and, in some cases, jail time.

The s54 penalties are, from the POV of the law's purpose--ie. expunging hateful material--something of a frill. The law would seem to function without them.

Update: Pearl Eliadis agrees.

CJC On Lemire Case: Wrong In Law

"The Supreme Court of Canada clearly ruled that s. 13 was constitutional long before the penalty provisions were added to it. As such, Mr. Hadjis should have simply ignored the penalty provisions and applied the appropriate cease and desist order against Mr. Lemire," [Joel Richler, CJC National Honourary Legal Counsel] added.

"This action is known as the doctrine of 'reading out' - a well-established practice endorsed by the Supreme Court of Canada under which the portion of a law that may be unconstitutional is edited out but the remaining constitutional elements are applied. Mr. Hadjis should have 'read out' of section 13(1) the penalty provisions and preserved the rest of the section. Mr. Hadjis failed to consider this option, even though the Supreme Court of Canada has been clear that section 13(1) is perfectly constitutional," Richler explained.

"This was a decision by a single member of the Canadian Human Rights Tribunal. We should recall that there have been two previous decisions by the Tribunal that rejected the constitutional challenges to s. 13. In order to clarify the law, we strongly urge the Canadian Human Rights Commission and Mr. Warman to appeal this decision," CJC CEO Bernie Farber said.

Read the rest through the link.

Lemire Ruling: Section 13 Constitutional

The CHRT decision Warman vs. Lemire came down this morning. Don't have much time to write about it today, but a quick response/fake lawyer opinion:

1) S.13(1) itself is safe, ie. constitutional as per the Taylor decision.

2) The various penalty provisions outlined in S.54(1), which I believe were added to the act later on (1998?), taken in conjunction with 13(1), infringed Lemire's rights under 2(b) of the Charter. Commissioner Hadjis felt that the fact that the CHRC pursued Lemire after he had "amended" his behavior and pulled down the offending material was not in accordance with the "conciliatory" nature of the Canadian Human Rights Act. Short term result: Lemire was guilty of breaching S.13 but no remedial order will be issued against him.

3) Don't know how this will affect Abrams vs. Topham and The Radical Press or future S.13 cases. If I were to guess, I would say that in future the CHRC might have to drop cases where the hate messages which inspired the complaint have been removed by their author/publisher. It won't have any effect on the various Warman vs. whoever lawsuits going forward.

Will add more to this when I am able.