Media
Reports on LEMIRE's
Constitutional Challenge of Internet Censorship
1: Globe and Mail: Hearing's decision could
affect all media, lawyer argues
2: National Post:
3: AM770 (
http://www.theglobeandmail.
KIRK
MAKIN
(Globe and Mail , September 16, 2008)
Every
Internet message board in the country will have to shut down if an
“It's
preposterous,” said Douglas Christie, a lawyer representing far right
groups who advocate free speech. “It is the same as the chairman of a
meeting being held liable for someone who shouts something out.”
Mr.
Christie warned that an adverse decision will prove destructive not just to a
sprinkling of characters on the “lunatic fringe,” but to a deluge
of mainstream newspapers, magazines, and other institutions that have launched
message boards and chat lines.
His
comments came in a closing submission to tribunal commissioner Athansios
Hadjis, who must decide if Mr. Lemire should be held liable for posted material
that ridiculed and belittled Jews, blacks, Italians, homosexual and other
groups.
Mr.
Christie also warned against closing an important valve on heated expressions
of dissent: “If you don't allow the ventilation and expression of extreme
views, the alternative is extreme action,” he cautioned.
“This
is one of the most important decisions that could ever be made by this
tribunal,” Mr. Christie added. “What is at stake is control of the
media of communications. The effect of this legislation is to create a
political elite who can alone communicate their views – and decide who
else can do so.
“We
see this case as meaning either the beginning of the end of freedom in a very
real way, or the end of the beginning of its preservation.”
Mr.
Christie also disparaged the Canadian Human Rights Commission for the way it
dismissed a recent complaint by Muslim groups against Macleans columnist Mark Steyn. The groups
had used a controversial section of the Human Rights Act – s. 13 –
to complain that Mr. Steyn's writing exposed Muslims to contempt or hatred.
Mr.
Christie branded it a “politically convenient” decision issued by
bureaucrats who had been cowed by a fierce attack mounted by main steam media
over the Steyn complaint.
“It
had become a political hot potato,” said Mr. Christie.
“They
dismissed the complaint and waved it around, saying: ‘See? Aren't we
fair?'”
In
reality, he said, Mr. Steyn's writing crosses the line on virtually every
yardstick the Commission and various tribunals has developed to measure
unacceptable statements.
“You
could hardly argue that Mark Steyn's article didn't meet the criteria, when it
portrays Muslims as a menace to
Mr.
Christie accused the Commission of steadily throttling free speech, and said
that every historical debate worth having – from the rightness of the
Crusades to sacking of portions of
“People
with strong opinions seldom believe that they are extreme,” he said.
“What
controversial statement isn't seen as vile by somebody?” said Mr.
Christie, who has over the years defended a Who's Who of far right figures that
includes James Keegstra, Ernest Zundel, Wolfgang Droege, John Ross Taylor and
Tony McAleer. “Different religious groups are now aware that they can use
this law for their own religious ends.
Mr.
Christie said that the commission has crafted s.13 into an “absolute
liability offence.” Simply by being associated with an offensive
statement, he said, a defendant runs a strong risk of being found liable.
“It's
so easy. It's a beautiful system for destroying your enemies... But the truth
is more important than anyone's hurt feelings. The silence of speech is the
death of reason.”
However,
Mr. Christie also warned that the very groups who launch complaints to silence
their critics may soon find that the tables have turned against them, should
their opponents choose to adopt the same tactic.
“This
law is as dangerous to them as it is to the neo-Nazis,” he said.
A lawyer
for Mr. Lemire, Barbara Kulaszka, told Mr. Hadjis that s. 13 complaints make up
just one per cent of the cases the Commission reviews, yet a wholly
disproportionate number of them are referred to full tribunal hearings.
She also
attacked the complainant in the Lemire case – Richard Warman – for
allegedly making a career out of filing complaints which tie up those whose
politics he dislikes in costly litigation.
Mr.
Kulaszka said that Mr. Warman has targeted 26 individuals in his complaints.
The second-most active complainant has only targeted four individuals, she
said.
“He
is overwhelmingly responsible for s.13 complaints,” she said.
Noting
that Mr. Warman used to work as an investigator for the HRC, Ms. Kulaszka
accused him of coaching one of his successors in how to investigate and to use
material against Mr. Lemire.
“He
seems to have had a tremendous influence on her,” Ms. Kulaszka said.
“It's outrageous that the complainant here teaches her the very
techniques she is going to use in his complaint.”
She complained
that Mr. Warman didn't have to do anything more than register his complaint and
testify at the hearing. “He gives his testimony and leaves,” she
said. “But the defendant cannot leave if he wants to defend himself and,
in the case of Mr. Lemire, have a website.”
Mr.
Kulaszka also argued that the Commission failed to even make a case for Mr.
Lemire being the operator of the website that contained the disputed comments.
“Without
some corroborating evidence somewhere tying Mr. Lemire to this website, you
should not find that he is liable under s. 13 of communicating any
material,” she told Mr. Hadjis. He has no case to answer.”
She said
that Mr. Lemire has always used his own name to post comments on other
websites, and readily accepts his role in operating other sites that promote
free expression and criticize policies such as immigration.
http://www.nationalpost.com/
Joseph
Brean, (National Post, September 16, 2008)
Doug
Christie, addressing the hate speech hearing of freedomsite.org Web master
Marc Lemire on behalf of the Canadian Free Speech League, said Section 13 of
the Human Rights Act, which prohibits messages "likely to expose"
identifiable groups to hatred, has created "a political elite who alone
can communicate their views and decide who else can communicate."
Originally
formulated for telephone hate lines, Section 13 now applies to the Internet,
and by extension, a wide array of published material.
"We
believe what is at stake is control of the media, because now the Internet is
the home for Maclean's magazine, the National Post, and not just what used to
be called the lunatic fringe," Mr. Christie said.
Mr.
Christie is best known as a defence advocate in high profile cases such as
those against anti-Semitic teachers James Keegstra and Malcolm Ross and the
Holocaust denier Ernst Zundel. His failed defence of neo-Nazi John Ross Taylor
at the Supreme Court in 1990 now stands as the leading precedent on hate speech
in
Mr.
Lemire is accused under this law over messages posted by other people on the
long-defunct chat forum of his Web site; for a satirical poem about immigrants
he posted on a U.S. white supremacist Web site; and for his alleged involvement
with jrbooksonline.com,
a clearing-house for historical articles on white supremacist or anti-Semitic
themes, such as Henry Ford's The International Jew.
Although
Mr. Lemire's name was once listed as an administrative contact, he says he set
the site up for an unidentified American.
Mr.
Christie said that the
"True
belief is intolerant and conflict is inevitable where people believe different
things," he said.
In a
rhetorical flourish, he cited various historical issues that, if discussed
truthfully, could conceivably expose certain groups to hatred: the Crusades,
the Inquisition, the Protestant Reformation, the battles of
Mr.
Christie compared Richard Warman, a former CHRC employee and serial Section 13
complainant who brought the case against Mr. Lemire, to Tomas de Torquemada,
the leader of the Spanish Inquisition, as someone who is "creating heresy
where he wants to find it, then becoming a hero for prosecuting it."
He said
the Canadian Human Rights Commission's recent rejection of a prominent
complaint of Islamophobia against Maclean's magazine, under Section 13, was a
"convenient afterthought," rather than a principled application of
law.
"I
think what they thought about was the political implication of prosecuting
Maclean's magazine, and the media's reaction," he said.
Final
submissions in Mr. Lemire's case are expected to conclude Wednesday, nearly
five years after the complaint was initially filed.
National Post
http://www.am770chqr.com/
Mysterious
Phenomenon Appears Before CRHT
Something
resembling common sense made a sudden and shocking appearance today before
a Canadian Human
Rights Tribunal hearing:
An
adjudicator of a human rights hearing into an Internet hate case expressed
serious misgivings Monday about whether a provision used to attack hate speech
can continue to exist in the Internet age.
The Human Rights Act provision permits anyone
who objects to even a borderline case of alleged hate speech to expose the
author to a costly, cumbersome human rights adjudication process, said
Athansios Hadjis - who is presiding over a Canadian Human Rights Tribunal
against Internet webmaster Marc Lemire.
Citing a recent case in which Maclean's
magazine columnist Mark Steyn defended himself against a complaint from a
Muslim group, Mr. Hadjis said it may be all too easy for an individual to be
“dragged through the process.”
Mr. Hadjis said that the controversial
provision created to combat hate messages left on telephone machines operated
by member of the far right - made sense in the past. However, he said that its
usefulness may be in the past.
(Via BCF)
Whether Section 13 ever
made sense is debatable, but let's take these victories as they come. Perhaps
this could mark a turning point in this debate - we'll have to wait and see.
The hearing concludes tomorrow - more here.
UPDATE: This, on the other hand, is much less
encouraging:
(Simon
Fothergill, a lawyer for the Attorney-General of Canada) answered that if
Section 13 puts a chill on public discourse, it is only to be around the
fringes of hate speech, and that this is not "a terribly bad
outcome."
"A little bit of chilling is
tolerable" he said