Hearing's decision could affect all media, lawyer argues
KIRK MAKIN
Globe and Mail Update
September 16, 2008 at 7:51 PM EDT
Every Internet message board in the country will have to shut down if an Ontario man – Marc Lemire – is found liable for vile comments that were posted on his website, a Canadian Human Rights tribunal was told yesterday.
“It's preposterous,” said Douglas Christie, a lawyer representing far right groups who advocate free speech. “It is the same as the chairman of a meeting being held liable for someone who shouts something out.”
Mr. Christie warned that an adverse decision will prove destructive not just to a sprinkling of characters on the “lunatic fringe,” but to a deluge of mainstream newspapers, magazines, and other institutions that have launched message boards and chat lines.
His comments came in a closing submission to tribunal commissioner Athansios Hadjis, who must decide if Mr. Lemire should be held liable for posted material that ridiculed and belittled Jews, blacks, Italians, homosexual and other groups.
Mr. Christie also warned against closing an important valve on heated expressions of dissent: “If you don't allow the ventilation and expression of extreme views, the alternative is extreme action,” he cautioned.
“This is one of the most important decisions that could ever be made by this tribunal,” Mr. Christie added. “What is at stake is control of the media of communications. The effect of this legislation is to create a political elite who can alone communicate their views – and decide who else can do so.
“We see this case as meaning either the beginning of the end of freedom in a very real way, or the end of the beginning of its preservation.”
Mr. Christie also disparaged the Canadian Human Rights Commission for the way it dismissed a recent complaint by Muslim groups against Macleans columnist Mark Steyn. The groups had used a controversial section of the Human Rights Act – s. 13 – to complain that Mr. Steyn's writing exposed Muslims to contempt or hatred.
Mr. Christie branded it a “politically convenient” decision issued by bureaucrats who had been cowed by a fierce attack mounted by main steam media over the Steyn complaint.
“It had become a political hot potato,” said Mr. Christie.
“They dismissed the complaint and waved it around, saying: ‘See? Aren't we fair?'”
In reality, he said, Mr. Steyn's writing crosses the line on virtually every yardstick the Commission and various tribunals has developed to measure unacceptable statements.
“You could hardly argue that Mark Steyn's article didn't meet the criteria, when it portrays Muslims as a menace to North America,” he said.
Mr. Christie accused the Commission of steadily throttling free speech, and said that every historical debate worth having – from the rightness of the Crusades to sacking of portions of Europe by Genghis Khan's Mongol hordes – runs the risk of offending particular races or religions.
“People with strong opinions seldom believe that they are extreme,” he said.
“What controversial statement isn't seen as vile by somebody?” said Mr. Christie, who has over the years defended a Who's Who of far right figures that includes James Keegstra, Ernest Zundel, Wolfgang Droege, John Ross Taylor and Tony McAleer. “Different religious groups are now aware that they can use this law for their own religious ends.
Mr. Christie said that the commission has crafted s.13 into an “absolute liability offence.” Simply by being associated with an offensive statement, he said, a defendant runs a strong risk of being found liable.
“It's so easy. It's a beautiful system for destroying your enemies... But the truth is more important than anyone's hurt feelings. The silence of speech is the death of reason.”
However, Mr. Christie also warned that the very groups who launch complaints to silence their critics may soon find that the tables have turned against them, should their opponents choose to adopt the same tactic.
“This law is as dangerous to them as it is to the neo-Nazis,” he said.
A lawyer for Mr. Lemire, Barbara Kulaszka, told Mr. Hadjis that s. 13 complaints make up just one per cent of the cases the Commission reviews, yet a wholly disproportionate number of them are referred to full tribunal hearings.
She also attacked the complainant in the Lemire case – Richard Warman – for allegedly making a career out of filing complaints which tie up those whose politics he dislikes in costly litigation.
Mr. Kulaszka said that Mr. Warman has targeted 26 individuals in his complaints. The second-most active complainant has only targeted four individuals, she said.
“He is overwhelmingly responsible for s.13 complaints,” she said.
Noting that Mr. Warman used to work as an investigator for the HRC, Ms. Kulaszka accused him of coaching one of his successors in how to investigate and to use material against Mr. Lemire.
“He seems to have had a tremendous influence on her,” Ms. Kulaszka said. “It's outrageous that the complainant here teaches her the very techniques she is going to use in his complaint.”
She complained that Mr. Warman didn't have to do anything more than register his complaint and testify at the hearing. “He gives his testimony and leaves,” she said. “But the defendant cannot leave if he wants to defend himself and, in the case of Mr. Lemire, have a website.”
Mr. Kulaszka also argued that the Commission failed to even make a case for Mr. Lemire being the operator of the website that contained the disputed comments.
“Without some corroborating evidence somewhere tying Mr. Lemire to this website, you should not find that he is liable under s. 13 of communicating any material,” she told Mr. Hadjis. He has no case to answer.”
She said that Mr. Lemire has always used his own name to post comments on other websites, and readily accepts his role in operating other sites that promote free expression and criticize policies such as immigration.
