Wednesday, September 2, 2009

Lemire - A Narrow Hate Crime Win for the Canadian HRC

Longest Game in Hate Crime History Decided in a Shootout

Okay, I really was excited to get up this morning and read about how Athanasios Hadjis, writing on behalf of the Canadian Human Rights Tribunal, that august independent protector of our human rights had descended from the mount, or wherever they keep the Kool Aid, with his tablets of stone and had come down hard on the Canadian Human Rights Commission and its employees and associates.

But, then I awoke and actually got up, had a coffee, and went to my computer. And, as it always is, truth is stranger than fiction. I tried to work my way through the over 100 pages of the Decision, much of which was a regurgitation of what happened at trial, except that it was a sanitization of what happened. There was no mention of some of the very special testimony where some of the people under oath made such famous statements as :
"Freedom of speech is an American concept, so I don't give it any value … It's not my job to give value to an American concept."
That would be Dean Steacy, the Canadian HRC investigator. Forgotten was the wardriving use of a neighbours internet connection without her consent, and of course the postings on Stormfront to try and entrap both of the alleged Nazi supporters in Canada, who pose such a threat to our great nation.

What was not forgotten of course was testimony by Mr. Fothergill of the Attorney General of Canada where he said:
“It’s very difficult to construct an entirely truthful statement that constitutes hate, but there might be a context. Truth is not a defence and intent is not a defence, but they are irrelevant to the effects and effects are what matters in human rights legislation."
Marc Lemire had documented this on his blog at the time of the testimony, and it surprises me that it almost made it in lock, stock and barrel into the Decision.
Way to go Mr. Fothergill. You and J. Ly both have Hadjis in your pocket, sorta.

So, in the end, and it's not really the end, just the end of the beginning, the Canadian HRC won in a shoot out. Member Hadjis found Marc Lemire guilty of one count of contravention of S. 13 for the publication of the Aids Secrets article. It doesn't matter that a lot of the information in that article may be true. It apparently subjects blacks and gays to hate. It also doesn't matter that Lemire didn't post it himself. He was the webmaster. It also doesn't matter that the offending article was taken off the website in reasonably short order when there was a complaint. It also didn't matter that some of the material that had been subject of the complaint was still available on over 300 other web sites world wide, mostly in Canada, when it was no longer on Mr. Lemire's site.

But, in the end Member Hadjis refused to award the trophy to Complainant Warman and the CHRC, as he then:
concluded that s. 13(1) in conjunction with ss. 54(1) and (1.1) are inconsistent with s. 2(b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit within the meaning of s. 1 of the Charter.
This sounds fine, but Member Hadjis is off the reservation making this call, since his responsibility is the Canadian Human Rights Act. That call about the constitutionality of some or all of it is for a real court to make.

Worse still, are things noted by Scary Fundamentalist here:
But Hadjis’s decision includes affirmation for some of the ugliest aspects of section 13. Line [239] bastardizes Section 15 of the Charter (equality before the law) to justify controlling everyday speech in the name of equality. Line [247] maintains that Section 13, while contravening the Charter, is still a proportionate tool for an appropriate objective. In line [291], it is upheld that truth is not a defence. Line [290] argues that lack of intent is not a defence, unless the respondent immediately kowtows to the demands of the complainant.
Bottom line is Marc Lemire got off with a light tap on the wrist, in what should have been a shutout for him. He was robbed, and so were we all. This is far from over.

On September 16-17, 2009 a real court in Alberta hears a real case, the Appeal of the Boissoin Decision from the Alberta HRC on the sister law Alberta S. 3(1). Maybe something good will happen there.

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