Today’s Lynch List – the appealing version

Alright, here we go.

First off, some discussion of whether or not the CHRC will appeal the Hadjis decision in Warman v. Lemire – which was written prior to the CHRC’s decision today to appeal, of course. BigCityLib commented:

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

Proving that he is prescient, if not likeable. Meanwhile, Ezra Levant wrote a lengthy post on the subject: 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).

Read it here. More commentary from Jesse Ferreras.

Now, of course, the appeal has moved forward. Commentary on this from Dawg’s Blawg, Free Dominion, BigCityLib, The Freedomsite Blog, Scary Fundamentalist, Covenant Zoneand Scaramouche.

Meanwhile, the Canadian Jewish Congress is a cheerleader for the decision:

TORONTO- Canadian Jewish Congress (CJC) commends the Canadian Human Rights Commission for seeking judicial review of the decision in the case of Warman v. Lemire which involved a number of alleged antisemitic and homophobic postings on Lemire’s web site.

“CJC agrees that the decision of the Canadian Human Rights Tribunal in this case is based on significant errors of law. These errors raise important questions about the constitutionality of s.13 of the Canadian Human Rights Act that require clarification,” said Congress CEO Bernie M. Farber. “We support the Canadian Human Rights Commission in its application for judicial review and urge the Federal Court to rectify the errors of the Tribunal’s decision in Lemire.”

 Read it here. Also noted by Blazing Cat Fur.

Second, Brian Lilley writes: Why Harper won’t touch the human rights commissions.

When the National Post and Toronto Star agree on something, it is worth paying attention to. When the Post and Star are joined by The Globe and Mail, Montreal Gazette, Calgary Herald and just about every daily paper across the country in saying, “Something must be done.” Well then you really should pay attention.Since the news of Macleans Magazine facing a human rights investigation surfaced, joined by the video of Ezra Levant’s questioning before a commission employee being posted online, there have been calls in newspapers, on blogs and on the airwaves (talk radio took this story up early) for something to be done about the power being exercised by the human rights commissions in Canada. So far the only thing that has happened is that Dalton McGuinty’s Liberal government has given the Ontario Human Rights Commission more power and more leeway in how they go after cases.

From the federal government, nothing. (Except the announced appeal of Warman v. Lemire.)

That’s odd considering that most of the calls for reform have been aimed at the federal body, the Canadian Human Rights Commission and Section 13.1 of the Canadian Human Rights Act.

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 that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

The first federal politician to come out and say that Section 13.1 needed to go was Liberal MP Keith Martin who was promptly linked to unsavoury characters by a Canadian Press story that had him siding with white supremacists. Since then there have been plenty, although most of the high profile ones have been Conservatives including cabinet ministers such as Jason Kenney and even Justice Minister Rob Nicholson. Some have called for abolition of Section 13.1 while others such as Liberal MP and former Justice Minister Irwin Cotler call for reform.

Read the rest here. Also noted by Blazing Cat Fur.

Third, an unsigned editorial from the Montreal Gazette: Parliament should abolish this odious law:

The Canadian Human Rights Tribunal has rebalanced the scales of justice – and common sense – by exposing the folly of Section 13 of the Canadian Human Rights Act. Now Parliament should finish the job by abolishing this odious law.

Section 13 deems it discriminatory for anyone to communicate “telephonically … any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable” on the basis of religion, race, etc. That word “likely” makes prosecution all too subjective.

Website operator Marc Lemire was the subject of a complaint about racist and homophobic material on his site and other sites. Tribunal chairman Athanasios Hadjis acknowledged the legitimacy of the complaint about only one posting, and concluded about it that Sec. 13 violates the free-speech guarantee of the Canadian Charter of Rights and Freedoms. That guarantee is “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” and Hadjis found the use of Section 13 unreasonable in this case, because since 1998, conviction under Section 13 can evoke punitive fines.

The Tribunal cannot invalidate a law. So Hadjis “will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial order against him.”

We hope this decision will chasten certain zealots at the Canadian Human Rights Commission, who themselves posted racist drivel on Lemire’s site, so it could better be denounced. The government should also make sure that top management at the commission comes to its senses about such practices.

Read the rest here.

Finally, old friends of Barbara Hall; that Lindy song; the human right to give blood; happy blasphemy day, and a mole at the CHRC?

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