Selon le jugement de la Cour, la section 13 du CCDP violerait le droit à la liberté d'expression garanti par la Charte canadienne.
Il s'agit d'une grande victoire pour la liberté d'expression au Canada et d'une écrasante défaite pour le Lobby sioniste canadien et son laquais Richard Warman.
Ernst Zundel avait été reconnu coupable sous la même section du Code du CCDP pour sa publication du livre "Did 6 Million Really Die?" (ref: jugement Citron). Quant à Marc Lemire, le juge a rejeté la requête du plaignant Richard Warman, qui affirmait notamment, à tort, que Lemire était le webmestre du site http://jrbooksonline.com .
La loi contre les propos haineux sur Internet serait inconstitutionnelle
OTTAWA - Un membre du Tribunal canadien des droits de la personne (TCDP) estime dans un jugement que la loi interdisant les propos haineux sur Internet est inconstitutionnelle parce qu'elle porte atteinte à la liberté d'expression.
Athanasios Hadjis a conclu mercredi que l'article 13 de la Loi canadienne sur les droits de la personne allait à l'encontre des dispositions de la Charte canadienne des droits et libertés.
Bien que ce jugement n'invalide pas la loi - cela revenant aux tribunaux - il tire d'affaire Marc Lemire, M. Hadjis ayant refusé de le pénaliser ou de lui ordonner de cesser de publier ses propos.
Si les autres membres du TCDP suivent l'exemple de M. Hadjis, les affaires relatives à l'article 13 pourraient devenir choses du passé.
Cet article a vu le jour durant les années 60 afin de lutter contre l'existence des tribunes téléphoniques racistes, et sa portée a par la suite été étendue à Internet. Cependant, il fait depuis quelque temps l'objet de sévères critiques.
Le militant conservateur Ezra Levant, auteur d'un livre prônant la liberté d'expression, n'a pas caché sa surprise devant cette décision.
"C'est la première fois en 32 ans que quelqu'un est acquitté d'accusations reliées aux clauses sur la censure de la Loi canadienne sur les droits de la personne", a-t-il observé. "C'est incroyable - et le fait que la loi soit jugée inconstitutionnelle a une signification plus grande encore."
Le Congrès juif canadien (CJC) a rapidement manifesté le souhait que le jugement de M. Hadjis soit porté en appel.
"Nous sommes sérieusement en désaccord avec sa décision de ne pas imposer une ordonnance de cessation et d'abstention", a déclaré Joel Richler, avocat-conseil honoraire du CJC.
Le jugement rendu par M. Hadjis faisait suite à une plainte déposée par un avocat d'Ottawa, Richard Warman, à l'endroit de Marc Lemire, qui était accusé d'avoir affiché des propos antisémites et homophobes sur divers sites Web.
M. Hadjis a reconnu que Marc Lemire avait transgressé la section 13 de la Loi canadienne sur les droits de la personne en au moins une occasion. Il n'a cependant imposé aucune mesure contre lui parce que l'article de la loi va, selon lui, à l'encontre de la Charte canadienne des droits et libertés.
Nouvelles de ©La Presse Canadienne, 2009
NOTE: Un grand merci à BobGratton pour la TRADUCTION FRANÇAISE de l'article suivant.
Traduction française: Défaite du Lobby sioniste canadien et de Richard Warman
CHRT: Canada’s Section 13 Hate Law Unconstitutional
Hate speech law unconstitutional: rights tribunal
The Canadian Human Rights Tribunal has ruled that Section 13, Canada’s much maligned human rights hate speech law, is an unconstitutional violation of the Charter right to free expression because of its penalty provisions.
The decision released this morning by Tribunal chair Athanasios Hadjis appears to strip the Canadian Human Rights Commission of its controversial legal mandate to pursue hate on the Internet, which it has strenuously defended against complaints of censorship.
It also marks the first major failure of Section 13(1) of the Canadian Human Rights Act, an anti-hate law that was conceived in the 1960s to target racist telephone hotlines, then expanded in 2001 to the include the entire Internet, and for the last decade used almost exclusively by one complainant, activist Ottawa lawyer Richard Warman.
Today’s shocking decision is a victory over Mr. Warman by Marc Lemire, webmaster of freeedomsite.org and a prominent figure in the Canadian far right, who was supported in his constitutional challenge of Section 13 by the legal team defended Holocaust denier Ernst Zundel.
Mr. Warman alleged that postings on Mr. Lemire’s website, written by others, contravened Section 13 in that they were “likely to expose” identifiable groups to “hatred or contempt.”
Mr. Lemire responded by challenging the law itself, which was last upheld by the Supreme Court of Canada in a 1990 split decision, before the Internet age.
That decision, about neo-Nazi John Ross Taylor, upheld the law as a justifiable limit on free expression largely because of its supposedly remedial, non-punitive purpose. But Mr. Hadjis found that that, today, the pursuit of Section 13(1) cases “can no longer be considered exclusively remedial, preventative and conciliatory in nature.” Rather, the law “has become more penal in nature.”
He cited Mr. Warman’s request for a $7500 penalty against Mr. Lemire. Mr. Warman has won over a dozen other Section 13(1) cases, many leading to similar fines as well as legal restrictions on Internet activity.
This criticism about a penal law masquerading as a remedial one echoes that of Richard Moon, a law professor hired by the CHRC last year to provide an expert analysis of their online hate speech mandate. In essence, his advice was that it could not be done fairly, and so should not be done at all.
Mr. Hadjis’ decision to reject the law as unconstitutional, in light of its penalty provisions, leaves a central area Canada’s human rights in limbo, and kicks a political hot potato over to the government and the Canadian Human Rights Commission, which can appeal the ruling to Federal Court.
Mr. Warman’s case was supported by the CHRC, and various advocacy groups joined the case as intervenors in support of Section 13.
Mr. Hadjis rejected Mr. Warman’s complaints in all but one instance, an article called AIDS Secrets. He found that this posting contravened Section 13(1). But he also found the law itself — with its threat of penalties such as an order to cease the discrimatory messages, or pay fines up to $10,000 — violates Mr. Lemire’s Charter right to freedom of expression, and therefore refused to make any order against him.
“Since a formal declaration of invalidity [of Section 13(1)] is not a remedy available to the Tribunal, I 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,” Mr. Hadjis wrote.
More to come…
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. However, I have also 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. Since a formal declaration of invalidity is not a remedy available to the Tribunal (see Cuddy Chicks Ltd. V. Ontario (Labour Relations Board),  2 S.C.R. 5), I 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.
This is the beginning of the end for Section 13 and its provincial equivalents, and a major defeat for Canada's thought police. It's not just a personal triumph for Marc Lemire, but a critical victory in the campaign by Ezra Levant, Maclean's, yours truly and others to rid the Canadian state of this hideous affront to justice.
The state has no reason and no business hounding Marc Lemire as it did. While he is vindicated today, it hardly takes back everything he's gone through over the past five years. If the state had just left him alone, none of us would even know who he is. [DELETED]
Sur le site de Marc Lemire :
MEDIA: To Contact Marc Lemire, send an email to: email@example.com Your email will be answered within 15 minutes
Warman v. Lemire
SECTION 13 HAS BEEN FOUND UNCONSTITUTIONAL!
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 However, I have also 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. Since a formal declaration of invalidity is not a remedy available to the Tribunal (see article. Cuddy Chicks Ltd. V. Ontario (Labour Relations Board),  2 S.C.R. 5), I 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 Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54 at paras. (see 26-7).
La réaction du Congrès Juif:
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.
Wednesday September 2, 2009
Section 13 Hate Message Clause Unconstitutional Rules Canadian Human Rights Tribunal
By Patrick B. Craine
OTTAWA, Ontario, September 2, 2009 (LifeSiteNews.com) - The Canadian Human Rights Tribunal ruled today that section 13 of the Canadian Human Rights Act, Canada's human rights legislation against hate messages, unreasonably limits the Charter right to freedom of expression.
Member Athanasios D. Hadjis issued the ruling in the case of Richard Warman and the Canadian Human Rights Commission (CHRC) against Marc Lemire.
Popular conservative pundit and human rights commission critic Mark Steyn today said that the end of the hate speech legislation is near, calling today's decision a "landmark decision." "This is the beginning of the end for Section 13 and its provincial equivalents, and a major defeat for Canada's thought police," he said. "It's not just a personal triumph for Marc Lemire, but a critical victory in the campaign by Ezra Levant, Maclean's, yours truly and others to rid the Canadian state of this hideous affront to justice."
Lemire, operator of the website FreedomSite.org, was the subject of a complaint brought by serial complainant and former CHRC employee Richard Warman in November 2003. Warman alleged that certain postings to Lemire's website were likely to incite hatred or contempt against homosexuals and blacks, thus violating section 13.
Lemire responded to the complaint by bringing a constitutional challenge against the hate messages section, and against section 54, which allows the Tribunal to levy a fine of up to $10,000 against those found guilty of violating section 13, in addition to the other possible penalties.
The hate message section of the Canadian Human Rights Act (CHRA) has been the subject of growing criticism, having been accused of placing limits on the Charter right to freedom of expression. High profile cases have been brought against conservative publisher Ezra Levant and columnist Mark Steyn, as well as numerous cases against Christians who have expressed their convictions against the homosexualist agenda.
The CHRC has admitted to using unethical methods within their investigations. Notably, in a hearing during Lemire's case, CHRC employee Dean Steacy testified that he and a number of colleagues regularly used an alias to post racist messages on radical "far-right" websites. The CHRC was also investigated by the RCMP regarding allegations that they had hacked into a private citizen's internet connection, though that case was dropped when it led the police to the American jurisdiction.
Until today, no respondent had won a human rights case brought to the Tribunal under section 13. Further, about half of the section 13 cases have been brought by Richard Warman, and almost all of them in recent years.
Liberal MP Keith Martin proposed a motion last year to remove the controversial section from the CHRA, calling the human rights commissions' recent actions in this area "disturbing."
In a report commissioned by the CHRC itself on the hate messages section, legal expert Richard Moon, surprisingly, called for its repeal. The CHRC, however, has effectively ignored Moon's report and proposed their own solutions, which have been criticized as "superficial."
The Conservative Party, further, added its voice to the controversy last fall when members of the party voted almost unanimously at its convention to work to remove the hate messages section.
In his decision today, Hadjis first examined whether Lemire had violated section 13, and then took up the constitutionality question.
He dismissed all of Warman's claims against Lemire, except one, for an article he had posted entitled 'AIDS Secrets' by Kevin Alfred Strom. While Strom's article manifests racism, it is principally accused of maligning homosexuals. He speaks frankly about the problems associated with homosexuality, calling it a deviation, and presents well-established facts, such as the high prevalence of AIDS among homosexual men, and the disproportionate effect the virus has had on the black homosexual population. Nevertheless, his comments also manifest disgust for homosexuals, which Hadjis contends is "likely to expose homosexuals and blacks to hatred and contempt."
Nonetheless, Hadjis opted not penalize Lemire because he determined that section 13 unreasonably limited freedom of expression.
While bound by the 1990 Supreme Court decision which upheld section 13, CHRC v. Taylor, Hadjis observed that that decision was made "on the belief that the process itself was not only structured, but actually functioned in as conciliatory a manner as possible." According to him, the Supreme Court decision "hinged on the absence of any penal provision akin to the one now found at s. 54(1)(c)," which is the clause that allows the Tribunal to impose fines of up to $10,000.
He notes how Lemire had removed much of the material he was accused of posting even before the complaint was filed, and that he had sought mediation repeatedly, but Warman and the CHRC forged on with the case nevertheless. Further, according to evidence, the tribunal judge says, a disproportionate percentage of section 13 cases were brought to the Tribunal rather than being mediated. Of all human rights cases filed with the CHRC between 2002 and 2006, 11% were brought to the Tribunal, whereas 68% of section 13 cases were brought to the Tribunal from 1997-2007.
"As I have pointed out several times in this decision," he wrote, "Mr. Lemire had not only 'amended' his conduct by removing the impugned material, but sought conciliation and mediation as soon as he learned of the complaint against him. The process understood by the Supreme Court was not what Mr. Lemire experienced."
For these reasons, he said, "I have...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."
Hadjis said that because the Tribunal is not capable of actually repealing section 13, "I 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."
Lemire told LifeSiteNews.com that he is pleased with the Tribunal decision, and is looking forward to getting back to normal life after the long case. "I want to get back to my life," he said. "These people have stolen six years of my life, where I had to dedicate myself to fight these absolutely groundless charges. ... So I want to get back to my life now, and I want to help anybody else that is currently before any of these tribunals."
"Every Canadian should breathe a great sigh of relief that this kind of kangaroo court and disgusting administration of the human rights commission will come to an end very soon," he said.
Mais il reste encore du travail à faire au Canada. Radicalpress.com (Arthur Topham) est toujours sous attaque.
CAFE Granted “Interested Party” Status to Intervene in Arthur Topham/Radicalpress Internet Free Speech CaseAugust 11th, 2009
PAUL FROMM - CANADIAN ASSOCIATION FOR FREE EXPRESSION (CAFE)
August 10, 2009
[Editor’s Note: RadicalPress.com is extremely pleased to announce the positive decision by Tribunal chairperson Karen Jensen to grant Interested Party status to the Canadian Association for Free Expression. Direct Paul Fromm and I have been working together on issues for close to a decade now after first meeting online while I was printing my hard copy edition called The Radical.
Mr. Fromm’s many years of experience in battling the good fight to retain freedom of speech and expression for all Canadians makes his participation in this present struggle with B’nai Brith Canada over the Section 13(1) issue one of vital importance. As Paul states in his application one of his goals is to focus on this unusual position by the Complainants of trying to make citizens of foreign countries (i.e. Israel) a part of those protected by Canada’s “hate speech” laws. This is one issue that readers will know is of major concern to many Canadians who have been following this latest Show Trial regarding Freedom of Speech on the Internet in Canada.
And so, from RadicalPress.com and all those supporting the abolition of Section 13(1) of the Canadian Human Rights Act, a hearty welcome to the show Paul!]
CAFE Granted “Interested Party” Status to Intervene in Arthur Topham/Radicalpress Internet Free Speech Case
HARRY ABRAMS AND
THE LEAGUE FOR HUMAN RIGHTS OF B’NAI BRITH CANADA
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CANADIAN HUMAN RIGHTS COMMISSION
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CANADIAN FREE SPEECH LEAGUE
Karen Jensen 2009 CHRT 23
 The Canadian Association for Free Expression (CAFE) has applied for Interested Party status in the matter of Harry Abrams and the League for Human Rights of the B’nai Brith Canada v. Arthur Topham and RadicalPress.com
 CAFE’s mandate is to work toward the maximum latitude of the freedom of speech, freedom of the press and freedom of belief provisions of s. 2(b) of the Charter of Rights and Freedoms
Founded in 1981, CAFE has published material in support of these goals, made representations to various levels of government and obtained intervenor or Interested Party status in a number of cases.
 CAFE is especially concerned about efforts to restrict the Internet, which it sees as an inexpensive and accessible medium to persons of modest means who might otherwise be excluded from some of the older more established media.
 CAFE has participated as an Interested Party in a number of Tribunal cases involving s. 13 of the CHRA.
 The Respondents Arthur Topham and RadicalPress.com support CAFE’s motion. The Commission and the Complainants take no position on this motion.
 Section 50 of the Canadian Human Rights Act gives the Tribunal discretion to grant interested party status. The onus is on the applicant to demonstrate how its expertise will be of assistance in the determination of the issues. Interested party status will not be granted if it does not add significantly to the legal positions of the parties representing a similar viewpoint:
Schnellv. Machiavelli and Associates Emprize Inc.,  C.H.R.D. No. 14 at para. 6 (C.H.R.T.) (QL); Nkwazi v. Canada (Correctional Service),  C.H.R.D. No. 15 at para. 22 (C.H.R.T.)(QL); Warman v. Lemire 2006 CHRT 8.
 In a previous ruling, the Tribunal granted interested party status to the Canadian Free Speech League (CFSL) (Abrams and the League for Human Rights of B’nai Brith v. Arthur Topham and RadicalPress 2009 CHRT 12). That organization is also interested in matters touching upon freedom of expression.
 In his communications dated July 17, 2009, Paul Fromm, on behalf of CAFE, stated that while CFSL and CAFE “share a similar libertarian approach to Charter freedoms, CAFE has had considerably more experience as an “interested party” and agent in s. 13 Tribunals and brings this expertise to these proceedings”. In addition, CAFE has special concerns about an effort by the Complainants to expand even further the list of protected groups. It wishes to present the view that the Complainants are seeking to make criticism of a foreign government (in this case Israel) a “discriminatory” practice.
 Mr. Fromm indicated that CAFE wishes to make written and oral submissions as well as to cross-examine witnesses in this matter.
 Without making any comment on the merits or relevance of the issues raised in this motion, I am satisfied that CAFE will bring a unique perspective and body of experience to the issues in this matter; it will add significantly to the legal position of the parties.
 Therefore, CAFE’s request for interested party status is granted. CAFE’s representative will have the right to cross-examine witnesses and to present oral and written submissions. CAFE should consult with the Respondent and the CFSL to ensure that there is no duplication in their efforts.
August 7, 2009
CANADIAN HUMAN RIGHTS TRIBUNAL PARTIES OF RECORD
TRIBUNAL FILE: T1360/9008
STYLE OF CAUSE: Harry Abrams and The League for Human Rights of B’Nai Brith Canada v. Arthur Topham and RadicalPress.com
RULING OF THE TRIBUNAL DATED: August 7, 2009
Marvin Kurz For the Complainants
Daniel Poulin For the Canadian Human Rights Commission
Arthur Topham For himself and Respondent RadicalPress.com
Douglas H. Christie For the Interested Party, Canadian Free Speech League
Paul Fromm can be contacted at: firstname.lastname@example.org
[Editor’s Note: The following lengthy piece is my response to the Complainants’ second, amended Statement of Particulars which they submitted to the Canadian Human Rights Tribunal on July 12, 2009. In it they attempt once again to allege all sorts of nonsense about myself and my website in a further attempt to smear me as a hatemonger and an “anti-Semite” and racist and so on.
For those who have been following this Show Trial from the start I would recommend reading this reply to see the sorts of subterfuge that these folks resort to in order to meet the demands of the notorious Section 13 entrapment legislation under which they operate.]