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.
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 individuals and 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. 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 appropriate to 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. 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 CHRC also 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 Storseth stated 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 London newspaper, which hurt her very much, yet she admitted it was not hate and others would not be hurt by it. [CHRT Decision, para. 157 at AB, v. I, p. 139; Zundel letter at AB, v. II, p. 566; testimony at AB, v. III, p. 697-698, 701-703]
104.                      The use of censorship to stop psychological harm is a blunt instrument that does not meet any valid objective in the face of such evidence.  Indeed, the law causes the opposite result because it appeals to those who are most ethnically or group identified and therefore leads to division, not harmony as each strongly self-identified group starts using complaints to assert its interests. [see AB, v. II, pp. 604-608 as Goldberg lobbies ethnic groups re s. 13; AB, v. III, p. 791-792; other meetings, AB, v. III, pp. 820-822 all of which were justified under s. 27 of the CHRA]
105.                      Dr. Mock admitted that there was no study, being a controlled experiment, that showed hate and extremism on the Internet led individuals and groups to commit violent acts or hateful acts. [AB, v. III, p. 722-723] This was an important admission because it was one of the reasons given in Taylor for holding that s. 13(1) was justified.
106.                      The second study relied upon by Dr. Mock was “Hate Speech: Asian American Students’ Justice Judgments and Psychological Responses” by Boeckmann and Liew (2002) which found that participants in the study who highly identified with their Asian American social identity would punish Asian-targeted hate speech more severely than those who had a low identification with an Asian American identity. [AB, v. I, pp. 201-219]
107.                      The Boeckmann paper is important because it shows again that even individuals who self-identify with an ethnic group have strong variations of self-identification and these will cause very different psychological reactions to material as being hate or not.
108.                      It is submitted that the non-use of s. 13 by minority groups in Canada shows that no meaningful harm is being addressed by it. After the complaint against Taylor, there were no complaints under the legislation for 10 years. In the thirty year history of the legislation, there have only been 100 complaints. Of these, almost 30% had insufficient evidence to be dealt with by the CHRC or were withdrawn.  Even this small number does not represent grievances by members of minority groups since it has been inflated by the serial complaints of Warman, a white male.  [AB, v. II, p. 425-427]
109.                      Of all complaints filed with the CHRC, s. 13(1) complaints have been and remain an extremely small percentage. In the years 2002-2006, section 13 complaints comprised only 1% of all the complaints filed. [see Charts at Schedule attached]
110.                      In other words, Canada has a general population that deals well with expression, values the right to expression and does not experience the harm that is said to justify section 13. Canadians overwhelmingly prefer open debate, not censorship of the Internet.[see AB, v. III, p. 826-827]
The allegation of “hatred” in s. 13 imports moral blameworthiness and stigma
111.                      It is submitted that the allegation of hatred itself imports a moral blameworthiness and stigma absent in other discriminatory complaints. These are not absent because s. 13 is found in a human rights statute.
112.                      As the SCC observed in Taylor:
. . . the conciliatory nature of the human rights procedure and the absence of criminal sanctions make s. 13(1) especially well suited to encourage reform of the communicator of hate propaganda. [emphasis added]
113.                      The word “reform” means “to improve morally; persuade or educate to a better life”, “to give up sin or error; become better”. [see Funk & Wagnalls, Standard College Dictionary, New York]
114.                      Tribunals have not seen s. 13 in a remedial way. In acknowledging that in the medium of the Internet, it is difficult to make “meaningful” remedies in stopping discriminatory hate speech, Tribunals have consistently resorted to justifying cease and desist orders as “public denunciations” of respondents having important “symbolic” value. This imports the moral condemnation and stigma which Taylor believed was absent from human rights legislation.  [Warman v.Tremaine, para. 148; Citron v. Zundel, para. 300; Warman v. Kyburz, para. 82; Warman v. Harrison, 2006 CHRT 30, para. 71, 72].
115.                      The history of s. 13 confirms that Courts, Tribunals, the CHRC and complainants have seen respondents as blameworthy individuals who can only be stopped by cease and desist orders and penalties. The Federal Court below affirmed this view in paras. 62-63 of its decision. The conclusion must be that any proscribing of hatred in law must be solely left to the criminal sphere where the accused is accorded procedural safeguards and defences which recognize the importance of freedom of speech. Parliament recognized this with the repeal of s. 13 and 54 in Bill C-304.
116.                      It is submitted that s. 13(1) no longer meets the test of reasonable limit on freedom of expression under s. 1 of the Charter for all the reasons set out above and the Federal Court erred in law in failing to so find. As this is a constitutional issue, the standard of review of correctness applies. [Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 (CanLII), [2011] 3 SCR 471]
Part IV – Order requested
117.                      The appellant requests that the Court make the following orders:
(a)    The appeal is allowed and the decision of the Federal Court set aside;
(b)   A declaration that sections 13 and 54 (1) and (1.1) of the Canadian Human Rights Act are a violation of subsections 2 (b) of the Canadian Charter of Rights and Freedoms , are not saved by section 1 thereof, and as such, are of no force or effect pursuant to sections 24 (1) and 52(1) of the Constitution Act, 1982;
(c)    An order dismissing the complaint against the appellant by Richard Warman under s. 13 of the Canadian Human Rights Act;
(d)   An order for costs to the appellant of this appeal and below;
(e)    Such further and other order as this Honourable Court may make.
DATED this 12th day of February, 2013.                                  ______________________________
Barbara Kulaszka
Lawyer for the appellant Marc Lemire
George Orwell once said: “During times of universal deceit, telling the truth becomes a revolutionary act”.  Human Rights Commissions = DECEIT! And we are the revolutionaries for freedom that will set the Internet free!
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