Will Rob Nicholson try to save the censorship law?
On September 2, the vice-chair of the Canadian Human Rights Tribunal, Athanasios Hadjis, declared the censorship provision of the Canadian Human Rights Act illegal. That was quite something, given that Hadjis himself has brutally enforced that section as recently as two years ago. But declare it illegal he did. Here's paragraph 295 of his lengthy ruling:
For all the above reasons, I find that s. 13(1) infringes on Mr. Lemire's freedom of expression guaranteed under s. 2(b) of the Charter, and that this infringement is not demonstrably justified under s. 1 of the Charter.
Hadjis is reflecting the growing bi-partisan consensus against both section 13 (the censorship provision) and the CHRC in general. Hadjis is a Liberal, appointed by Jean Chretien. He is supported by a Conservative appointee, Edward Lustig, who indicated in his ruling earlier this year that he would abide by Hadjis's findings here. (Lustig also called out serial CHRC complainant Richard Warman for his online anti-Semitism, calling it "disturbing and disappointing."
It's been 28 days since that ruling -- which means there are just two days left in which a party may make an appeal. I am not an expert in the CHRT's procedure, but I would imagine that such an appeal could be made by the CHRC, the Justice Department, Richard Warman or even Marc Lemire, the complainant.
It was one thing for the Justice Department to defend the law from an accusation that it was unconstitutional. That's pretty much standard operating procedure. But for Rob Nicholson, the Justice Minister, to positively appeal such a loss, to revive such an illiberal law, is a whole different thing. It would be a positive act of censorship, no longer a passive act of defending the legality of a law on the books. It would make a lie of Nicholson's own public statement against section 13, namely his publicly voting against the section at a party policy convention last year.
Nor would it be acceptable for Nicholson to stand down but let his agency, the CHRC, appeal it -- for the same reasons.
That leaves Warman and Lemire.
Warman, despite attempts to publicly portray himself as a human rights martyr, has actually had his expenses paid for his CHRC complaints even since he left their employ. (This is in addition to the tens of thousands of dollars of tax-free award payments he's won before the CHRT.)
To be clear: the CHRC has paid for Warman's hotel, travel, meals, parking and incidentals -- and even a modest daily honorarium -- for him to file complaints against people. As far as I know, Warman's sweet deal is the only case in Canada -- no-one else is paid a bounty to drum up complaints for the CHRC.
This is relevant because the CHRC might try to finance Warman's appeal, using tax dollars, just as they have financed his complaints. And, if the CHRC is forbidden from paying Warman to litigate, it is doubtful that Warman would actually spend his own money. That's just not his style.
Which leaves us with Lemire. Would he appeal?
I can think of a reason not to: he won, and he's done now.
But I can think of a few reasons for him to indeed appeal. If he appeals -- and I haven't given sufficient thought to the grounds upon which he could appeal his own acquittal, but I imagine there are a few in a 107-page ruling -- he would force the matter into a real court, before real judges, who would surely confirm Hadjis's ruling. (Real courts with real judges tend to care about the Charter more than kangaroo courts do; and the Supreme Court of Canada has given strong indications in recent years of the importance to be given to free speech.)
A real court decision wouldn't just have a "declaration" that section 13 was illegal. It would likely strike the section out -- thus commanding the bullies at the CHRC to stop enforcing it. (They are actually continuing with it, despite the CHRT's ruling. They share Bernie "Burny" Farber's contempt for Hadjis the the tribunal; they respect him only when he agrees with them; when he disagrees, they ignore him and mock him as impotent. I think that says a lot about their character, don't you?)
So a victorious appeal by Lemire would shut down the CHRC for good. And it would also carry more persuasive weight in other HRC jurisdictions where censorship is currently being challenged before the courts, such as Alberta (where a court ruling on the Boissoin appeal is imminent).
I also think a Lemire appeal is a good idea because it will keep the CHRC's bad behaviour in the news for months or years to come. It will take up time and money from CHRC lawyers. And, though that is actually our tax money, at least it won't be used in harassing other Canadians. Jennifer Lynch has already whined that defending section 13 censorship monopolizes her time and energy. I think that's great. She's a horrific violator of personal freedom in Canada, which is why she ought to remain on the defensive, and not left to her own devices.
Finally, an appeal would be an interesting political IQ test for Canada's Official Jews. They suffered an enormous loss of credibility with Hadjis's ruling. Are they stupid enough to double down on an appeal? Again, if they are stupid enough to do so -- and with Mark Freiman as the new figurehead president of the Canadian Jewish Congress, himself a former section 13 prosecutor, they probably are stupid enough to do so -- it will have the same deleterious effects on them: burn up their time, efforts and money, and further discredit them in the public eye.
I don't want Rob Nicholson to appeal -- it would be immoral for him to do so.
I don't want him to allow his agency, the CHRC, to appeal -- it would be a cowardly attempt by him to avoid the political blame, if he let them do so.
I don't want the CHRC to continue to finance Warman to appeal the ruling (though I don't much mind if he appeals on his own -- but I'm pretty sure someone who bills the CHRC for every little expense won't do so on his own.)
But I would like the thing appealed so that it could be trashed with even greater gusto and authority by the real courts.
And frankly, I wouldn't mind if it went all the way up to the Supreme Court of Canada, so that Beverley McLachlin, who wrote the dissent in the Taylor ruling 19 years ago, could have another whack at censorship in Canada, this time as the Chief Justice, writing for a unanimous court.
None of which should be necessary, of course: Stephen Harper's Conservative government should stop avoiding this disgrace, and should repeal section 13 immediately, instead of outsourcing their responsibilities to the courts.
Fire. Them. All.
P.S. Here's proof of how malicious the CHRC is -- and how disrespectful they are of Hadjis, Lustig and the CHRT. They are still prosecuting section 13 cases, even though the law has been declared illegal. They are literally using a law that is not functional, to censor Canadians in disregard of our Charter.
That's malicious prosecution territory; that's abuse of office territory; that's piercing the corporate veil and suing Lynch and her mob personally territory. I have no idea who has given them that legal advice, but if I were a section 13 victim still being hounded by Lynch, I'd sue her and every staffer involved personally for illegal conduct. Here's what I mean:
From: "DANIEL POULIN" <DANIEL.POULIN@CHRC-CCDP.CA>Date: September 30, 2009 2:00:46 PM PDT (CA)Cc: <abromberg@bnaibrith.ca>, <Marvin@dsklaw.com>, <habrams@pacificcoast.net>, <paul@paulfromm.com>, <radical@radicalpress.com>Subject: Abrams and BBC v. Topham and Radical Press - Position of the CommissionDear 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
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