On May 1, 2008, the Calgary based, Canadian Constitution Foundation (CCF) has applied for Interested Party status to support the constitutional challenge filed by Marc Lemire against Section 13 of the Canadian Human Rights Act. Mr. Lemire’s motion, written by the brilliant and courageous Barbara Kulaszka – seeks to toss out Section 13 as a violation of freedom of expression, freedom of the press, freedom of conscience. A pdf of the constitutional argument can be found here.
The CCF in it’s application written by counsel Desmond P. Burton-Williams, sets out several key arguments which highlight why Section 13 is totally unconstitutional and needs to be removed from Canadian law books. One of their key arguments is that Section 13 is nothing more than a quasi-criminal statute without any of the protections of criminal legislation. As well Section 13 is vague and impossible to apply unless the trier of fact speculates as to the cause and effect of speech.
PDF of the CCF’s Motion available HERE
Key points by the CCF of the motion to intervene are:
‘The Foundation is a citizen-based organization with supporters across Canada . … The Foundation is governed by a board of directors which includes lawyers, a law professor, and other professionals. Our Advisory Board includes Eugene Meehan, Q.C. and other prominent Canadians. The Foundation has been actively involved in supporting public interest litigation being conducted by such distinguished counsel as William McIntyre, Q.C., and D. M .H. Goldie, Q.C.
The Foundation is a credible, trustworthy and objective organization that has expertise and a unique perspective on the application of the Canadian Constitution and the ideals expressed therein, including its essential characteristic: that the Constitution of Canada is the supreme law of Canada, and any law, government measure or common law principle that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Submissions to be made by the Foundation
This challenge directly involves important constitutional principles, including jurisdiction and the clarity of legislation. Understanding these issues and acting within their prescribe boundaries allows for governance without unnecessarily intruding into the rights of citizens. The resolution of these issues allows government to be effective in what it does by establishing clarity of purpose while eliminating dueling and competing public activities and actors. Generally speaking this leads to efficiency in government while securing the liberty of Canadians.
The Foundation will argue that Section 13 of the Canadian Human Rights Act mirrors Section 319 of the Criminal Code of Canada and thereby places the Tribunal in the unintended position of acting as law enforcement and the court as they relate to criminal matters. Enforcement of Section 13 of the Canadian Human Rights Act by the Tribunal has the effect of finding one liable for an indictable offence minus the indictment, as the ability to lay an indictment falls only within the jurisdiction of the Crown. This instance of jurisdictional trespass by the Tribunal leaves law enforcement and the courts confused as to where their respective jurisdictions lie. The application of Section 13 also has the effect of leaving the public in a state of ambiguity with respect to the criminal status of persons charged under it.
The Foundation will argue that the wording of Section 13 as it relates to ‘”persons being exposed to racial hatred” as a result of speech is not only vague, but difficult if not impossible to apply unless the trier decides to speculate as to the issues of cause and effect. The offense dealt with by Section 13 of the Canadian Human Rights Act is identical to an indictable offense as described in the Criminal Code of Canada. The standard of proof as prescribed in criminal law is very high in keeping with the stigma effect of a criminal conviction. By contrast the standard of proof for the Tribunal is far lower, yet the effect of being found to be a “bigot”, as a finding of Section13 liability does, would inevitably follow.
The Foundation will argue that the Tribunal has not been authorized to usurp the criminal law powers of the state, and that laws that are vague ought to be declared void for being such, in keeping with established precedent.
The Foundation will take the position that, to the extent that any limitations placed on freedom of expression by Section 13 of the Canadian Human Rights Act infringes upon constitutional rights, and that due to the aforementioned flaws in its application as well as its composition, the infringement cannot be justified under Section 1 of the Charter.
The Interest of the Foundation in These Proceedings
The Foundation has a legitimate interest in the issues raised by this application. As stated above, the impugned statute allows the Tribunal to act in a manner that violates the constitutional rights of Canadians, and to do so with sweeping powers and dubious authority.
The Foundation is gravely concerned that arguments advanced by Richard Warman, if adopted by this Tribunal, will result in the Canadian Human Rights Commission having the ability to violate the Constitution with impunity and without consequence. The Foundation submits that remedies to the aims sought by Section 13 of the Canadian Human Rights Act already exist in the Criminal Code of Canada and can be derived from the realm of public debate, where it constitutionally belongs.
The Foundation’s Unique Perspective
Our Foundation brings a unique perspective and approach to the issues raised in this application, and has a broader interest in these proceedings than the specific interests being pursued by the respondent. We will not duplicate the submissions of Mr. Warman, Mr. Lemire or of the other interveners.
The Foundation is not clouded by personal, social or political agendas in its understanding of the Canadian Constitution. Rather, it brings clarity of purpose to any constitutional debate by promoting the ideals expressed in the Constitution itself without reference to extraneous considerations
Desmond P. Burton-Williams
Canadian Constitutional Foundation
This application for Intervener Status by the Canadian Constitutional Foundation has been made to the Canadian Human Rights Tribunal. The next steps are for the parties to make submissions on this application. Finally the Tribunal will decide.
Closing arguments in the Lemire Constitutional Challenge are fast approaching, and even with the CHRC just today ( May 2, 2008) disclosing another 400 pages of highly relevant documents, (which they were *ordered* to disclose back in 2006 – Specially  L), the Tribunal seems to be guided by external forces which are dictating that this case will be over no matter what happens within the next few months.
The Tribunal has its marching orders from above, and those orders are to stop the absolute demolishing of the CHRC by Barbara Kulaszka – by any means necessary… Fairness, truth or justice be damned!
Please watch the Freedomsite for updates on the CCF’s application for Interested Party status, and those who are members of the CCF should send in a letter of appreciation.
But the big question still remains.. where is Borovoy and the Canadian Civil Liberties Association. He has been getting press from coast to coast talking about the CHRC, but where is he? In they won’t intervene at the most important juncture on a serious challenge of the validity of Section 13.. IF NOT NOW…. WHEN? (Source)
SoCon or Bust Commentary: If I were an employee working for the HRCs, especially the S. 13 Spy Unit, I’d start looking for another job right now. And I’d leave voluntarily to save some self respect. That looks a lot better than being shut down by the government later on for fraud and totalitarian propensities.
“You worked for whom? Wasn’t that the criminal organization who spied on Canadians and switched evidence in their kangaroo kourt? Sorry, I can’t hire someone who would agree to work in that environment. We have ethics in this company. There’s the door. Please use it.”