Hadjis Decision - Sept. 2, 2009 (Warman vs Lemire)

[Jay Currie]

I think your are right Connie but there are several variants to consider.

1) The first is that Lemire wins and the Member bases the win on the egregious conduct of the Commission and the Complainant. Huge win. Especially if the Member really goes to town, as the DOJ suggested he could, and details the egregious conduct.

2) Alternatively, Lemire could lose on narrow Taylor grounds but be spared any penalty on the basis of misconduct by the Commission and complainant. Even bigger win as there would be a basis for appeal and the Commission would be slapped where it should be.

The decision which I think would be a loss would be one in which the Member dismissed the complaint on very narrow Taylor grounds, affirmed the Tribunal's constitutional status and remained silent as to the conduct of the Commission and Complainant. Very hard to appeal a decision dismissing the complaint against you.

The good news is that it is hardy likely that it would have taken nearly a year to write a simple dismissal. So I am betting on on 1 or 2.

And be prepared, in the event of any dismissal for the Dawg, Jackal and BCL as well as the lesser vultures and the coward Lynch to proclaim this as an example of the "human rights system" working. And there is where, win or lose, we have to push back hard.

Five years, hundreds of thousands of dollars later, Marc Lemire is not winning whether the complaint is upheld or dismissed. And that is where the outrageous abuse of the Charter that s. 13.1 and the CHRC is needs to be driven home.

[J.B. Stone]

The way I see it, it is win-win for us. Either we get our constitutional challenge, or the CHRC gets a black eye.

I can't help but HOPE things go well for you and that whatever transpires, it doesn't end up costing you a FORTUNE..!!!

[Connie Fournier]

And be prepared, in the event of any dismissal for the Dawg, Jackal and BCL as well as the lesser vultures and the coward Lynch to proclaim this as an example of the "human rights system" working. And there is where, win or lose, we have to push back hard.

They can try that, but it will be pretty hard for them to get away with it. They have defamed Marc Lemire for two years calling him a Nazi, a racist, a white supremacist etc.

If this is dismissed and they try to say it is evidence that the system works, my response will be that they can't have it both ways. Either the system "worked" because an innocent man is vindicated, or an evil Nazi is free to taunt people with the immigrant poem because the system failed. They can't say the system worked and continue to lie about Lemire being a Nazi.

They've painted themselves into a corner with their libel of Marc Lemire.

[Mark Fournier]

Less than ten minutes to go. If everything is on schedule Mr. Lemire will receive his copy of Hadjis' ruling within minutes. It is unknown whether he will take the time to read it and analyse it before we learn the verdict or if he will simply post the whole thing right away.

[Dogpatch]

And be prepared, in the event of any dismissal for the Dawg, Jackal and BCL as well as the lesser vultures and the coward Lynch to proclaim this as an example of the "human rights system" working. And there is where, win or lose, we have to push back hard.

They can try that, but it will be pretty hard for them to get away with it. They have defamed Marc Lemire for two years calling him a Nazi, a racist, a white supremacist etc.

If this is dismissed and they try to say it is evidence that the system works, my response will be that they can't have it both ways. Either the system "worked" because an innocent man is vindicated, or an evil Nazi is free to taunt people with the immigrant poem because the system failed. They can't say the system worked and continue to lie about Lemire being a Nazi.

They've painted themselves into a corner with their libel of Marc Lemire.

I want to understand this.

If Lemire wins against Warmen, he cannot take the rest of his complaint to the SCOC.

If the above is correct, can't he otherwise sue them (Warmen, CHRC etc... ) for libel, slander, etc? In their defence, wouldn't they have to open everything they have on Lemire (and possibly Mark and Connie, the FD 8 etc)?

[BlawBlaw]

I didn't notice it posted elsewhere, but Blazing Cat Fur had a link to the entire, 107 page decision:

http://www.scribd.com/doc/19351786/Lemire-Decision

[BlawBlaw]

I want to understand this.

If Lemire wins against Warmen, he cannot take the rest of his complaint to the SCOC.

Not sure. Warman, the Commission or the Government could appeal the decision to a court that has the power to strike down the legislation. I'm not aware, off hand, of the mechanism Lemire used to challenge the legislation.

If the above is correct, can't he otherwise sue them (Warmen, CHRC etc... ) for libel, slander, etc? In their defence, wouldn't they have to open everything they have on Lemire (and possibly Mark and Connie, the FD 8 etc)?

You can't sue for libel for anything said in (a kangaroo) court. If they were trying the case in the media, then they could be held responsible for any damaging untruths.

The only thing open is an abuse of process claim (a long-shot at best), and possibly a costs remedy.

I'd have to look at the CHRA again about costs. In that case about the French guy challenging an English-only traffic ticket in Alberta, the Court of Queen's Bench made an order for costs against the government. There were comments in those decisions about costs being a matter of jurisdiction and that provincial court didn't have jurisdiction to order costs, but the superior courts do even with repsect to a proceeding that is not before them. It's pretty lop-sided to have the defendant potentially liable for costs while both the complainant and Commission are not.

It should have never gone to a hearing. He took down the website in the wake of the complaint. The purposes of the legislation were served without going to the hearing, but it seems that the Commission and Warman were out for blood (ie. the penalty). Seems totally unreasonable and unnecessary to me, something that would attract a costs award in a real court.

[bojamajams]

It doesn't seem to make sense that he could win an 'abuse of process claim' because the conclusion says: "I have determined that Mr. Lemire contravened s. 13 of the Act in only one of the
instances alleged by Mr. Warman, namely the AIDS Secrets article."

Anybody know if he can get a costs remedy though? I really hope so...

And what steps could be taken to get the legislation removed altogether now?

[BlawBlaw]

It doesn't seem to make sense that he could win an 'abuse of process claim' because the conclusion says: "I have determined that Mr. Lemire contravened s. 13 of the Act in only one of the
instances alleged by Mr. Warman, namely the AIDS Secrets article."

Yes, but all the other allegations were thrown out, and the one charge that stuck was tossed out on constitutional grounds. All of that despite the abuses by Warman and the CHRC: creating evidence by posting on the site (tantamount to entrapment), withholding disclosure, delays and delays, etc etc.

Anybody know if he can get a costs remedy though? I really hope so...

I stumbled on that case where the francophone truck driver in Alberta turned a $54 traffic ticket into a marathon constitutional challenge. He was awarded $15,000 in costs because the crown delayed the trial. It was a Charter remedy that the provincial court can give, even if costs are not usually awarded by a provincial court and not in quasi-criminal cases. Hadjis' ruling determined that the penalty provisions of the CHRA are quasi-criminal in nature and that is the thin, entering wedge to find that the procedural rights in s.11 of the Charter (including being tried within a reasonable time) kick in with respect to a s.13 case.

The driver was also awarded $90,000 costs by a superior court that found it had the jurisdiction to make a costs award for a case conducted in provincial court, and that the nature of the case was public interest litigation. We are dealing with an administrative tribunal rather than a provincial court, and a final cost order rather than interim, but the same reasoning might apply.

The Alberta government is appealing the costs award to the SCC. Meanwhile, the guy was convicted but the conviction was set aside as his rights were violated, same as in this case. Alberta appealed the ruling to the superior court, and that appeal is still ongoing.

And what steps could be taken to get the legislation removed altogether now?

My understanding is that Lemire is pursuing an independent Charter challenge of the legislation in superior court, which has the power to strike down section 13 as it applies to all of Ontario. It would take the SCC to strike down the legislation nationally.

Otherwise, support Keith Martin's private member motion to have s.13 removed. Or convince your local MP to table a private member's bill. The odds that any of the sitting parties would take it upon themselves to move forward with a change is somewhere between zero and nil.

[Gerry T. Neal]

Kevin Michael Grace (who was a writer and editor for the defunct Report Newsmagazine - their best writer and editor in my opinion) has posted an article on the Lemire decision to VDare.com.

It pretty much says it all:

http://www.vdare.com/grace/090903_hate_crimes.htm

[calgary clipper]

An excellent essay that should be read far and wide. Let's see if the MSM picks up any or all of it - or more surprisingly they come up with their own thinking via editorials that cover the same ground.

[free_life2]

Official Jew 2b's 'official' response.

Sep 02, 2009 - Canadian Jewish Congress says Lemire case decision wrong in law

TORONTO- Canadian Jewish Congress (CJC) said today it believes the decision in the case of Warman v. Lemire is wrong in law and should be appealed. CJC also noted it believes section 13 of the Canadian Human Rights Act (CHRA) remains constitutional.

The case involves a complaint filed against Marc Lemire, webmaster of freedomsite.org, by Ottawa lawyer Richard Warman, for a number of alleged antisemitic postings on Lemire's web site.

"We are pleased that Canadian Human Rights Tribunal Member Athanasios Hadjis found that some of the material posted by Lemire violated s. 13 of the CHRA. However, we strongly disagree with his decision not to impose a cease and desist order because he believed the penalty provisions in the Act render s. 13 unconstitutional," said Joel Richler, CJC National Honourary Legal Counsel.

"Reasonable people can differ regarding the penalty provisions of the Act - that is a matter for the Federal Court of Canada to determine," said Richler.

"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," he 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.

- 30 -


CONTACT:

Wendy Lampert
National Director of Community Relations
Canadian Jewish Congress
wlampert@on.cjc.ca
www.cjc.ca

http://www.cjc.ca/template.php?action=news&story=1039

[bojamajams]

Official Jew 2b's 'official' response.

Sep 02, 2009 - Canadian Jewish Congress says Lemire case decision wrong in law

TORONTO- Canadian Jewish Congress (CJC) said today it believes the decision in the case of Warman v. Lemire is wrong in law and should be appealed. CJC also noted it believes section 13 of the Canadian Human Rights Act (CHRA) remains constitutional.

The case involves a complaint filed against Marc Lemire, webmaster of freedomsite.org, by Ottawa lawyer Richard Warman, for a number of alleged antisemitic postings on Lemire's web site.

"We are pleased that Canadian Human Rights Tribunal Member Athanasios Hadjis found that some of the material posted by Lemire violated s. 13 of the CHRA. However, we strongly disagree with his decision not to impose a cease and desist order because he believed the penalty provisions in the Act render s. 13 unconstitutional," said Joel Richler, CJC National Honourary Legal Counsel.

"Reasonable people can differ regarding the penalty provisions of the Act - that is a matter for the Federal Court of Canada to determine," said Richler.

"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," he 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.

- 30 -


CONTACT:

Wendy Lampert
National Director of Community Relations
Canadian Jewish Congress
wlampert@on.cjc.ca
www.cjc.ca

http://www.cjc.ca/template.php?action=news&story=1039

I guess '13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination.'
applies to someone who violated section 13 once, in which case he didn't violate it at all? Or am I putting too much emphasis on the 'repeatedly' part?

[Maikeru]

Or am I putting too much emphasis on the 'repeatedly' part?

Not at all. Tribunals are fond of referring to 'two-part tests', eg:

<a href=http://www.nizkor.org/ftp.cgi/ftp.py?people/c/collins.doug/abrams-vrs-collins.judgment>[17]</a> Tribunal Member Iyer determined (at D/28, para.
130) that the assessment of an expression under s. 7(1)(b)
requires the application of a two-part test:

First, does the communication itself express hatred or
contempt of a person or group on the basis of one or more of
the listed grounds? Would a reasonable person understand
this message as expressing hatred or contempt?

Second, assessed in its context, is the likely effect of the
communication to make it more acceptable for others to
manifest hatred or contempt against the person or group
concerned? Would a reasonable person consider it likely to
increase the risk of exposure of target group members to
hatred or contempt?

A single 'message', be it the Ezra Levant/Western Standard 'Muslin cartoons'; the Mark Steyn/Macleans magazine 'Tomorrow Belongs to Islam' article, or Doug Collin's 'Hollywood Propaganda' article were arguably one-time perspectives that a 'reasonable person' would find acceptable, even if worthy of penning a harsh 'Letter to the Editor' rebuke.

If a message is oft-repeated, however, then a 'reasonable person' is deemed more susceptible to allure by its' content.

Certainly, any 'reasonable person' who might read once that Marc Lemire is a 'neo-nazi' may ignore or accept that opinion, but when the claim becomes ubiquitous, the 'reasonable person' begins to 'manifest the hatred or contempt' evidenced whenever Lemire's name is included in 'mainstream' op-eds.