Revelations about Richard Warman's Section 13 complaint against Marc Lemire

NOTE: Please see the three updates at the end of this post.
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(Warning to both sides: if you're on blood pressure medication be sure to take it before reading further.)

On April 30 I received a blast email from Marc Lemire asking for help from 'FreeSpeech' bloggers in appealing to civil liberties associations for their intervention in closing arguments in the Section 13 case launched against him by Richard Warman.

I hesitated. Warman's complaint is devastating in the examples it uses to shore the argument that Marc's website repeatedly posted hate speech. So while it was one thing to voice my support for Marc's case (through a series of email exchanges in February I'd been satisfied that I'd vetted Marc sufficiently to defend him on my blog), it was quite another for me to argue to Canadians such as Alan Borovoy that they should put their reputations on the line in the matter.

I decided to ask Marc about the specifics of Warman's complaint. Parts of his reply struck me as so damaging to the Canadian Human Rights Commission that I urged he check with his attorney about the wisdom of my publishing his remarks at such a crucial juncture.

Once I received Marc's permission to publish his reply, I determined that our email exchange would be my argument to Canada's civil liberties associations to support Marc's constitutional challenge to Section 13. I interject that in the interim one association, the Canadian Constitution Foundation, has responded to Marc's request.

Without further introduction, here is my letter to Marc and his reply, which I follow with closing comments.

(Because Marc answers point by point, I have placed in quotes and italicized the phrases that are mine in his email. Also, I reproduced his reply without any editing, not even for spelling errors.)

April 2, 2008
"Marc:
Before I post an appeal to Borovoy et al., as you requested, I'd like some clarifications.

In one of your published (February) conversations with me you state:

Section 13 is being used to punish people. Consider that in my case the material under consideration was removed PRIOR to my learning about the complaint. But five years later [the CHRC still] couldn't care less. There are quite a few Section 13 cases relating to published material that had not been available on the Internet for years, but the writers were still hauled before a tribunal. The material was gone, thus the case should have ended. Punishment, not 'remedy,' can be the ONLY conclusion drawn about the CHRC actions in such cases.

Can you:

1) Provide further detail about when you removed the postings that Warman cites in his 2003 CHRC complaint; i.e., was it your policy to routinely remove hate speech/bigoted comments?

2) Inform me as to whether Warman ever posted a reply to the hate/bigoted messages he cited; e.g. did he post messages that disputed the bigotry and hate messaging? (I assume the answer to this is "no" but just to clarify.)

Thanks if you can spare the time for a comprehensive reply.

I am requesting the clarification because of statements made in Richard Warman's Section 13 complaint dated November 23, 2003 (which I already understand had to be reworded because the original filing did not name a person as the respondent).

The complaint lists several examples of bigoted speech (e.g., Jewish, Black jokes, etc.) and some comments posted on the Freedomsite message board that should be characterized as "hate speech," i.e., words that carry an incitement to murder (e.g., "we have to kill the french forigners from quebec," and "we all need to rise up and kill non whites because that's gods solution amen.")

Warman also cites that in February 2003 you posted to Freedomsite a Holocaust denial article written by Ian Macdonald.

The comments cited by Warman would invoke in any decent person reactions ranging from disgust to fear. So I think it's very important to nail down Freedomsite's policy toward such messaging prior to the CHRC complaint.

Thanks again,
Pundita"

"April 2, 2008
Pundita:

Just a quick FYI. This Constitutional Challenge is about the validity of the law, and not about Warmans “case” against me.

""1) Provide further detail about when you removed the postings that Warman cites in his 2003 CHRC complaint; i.e., was it your policy to routinely remove hate speech/bigoted comments?"

All the comments Warman mentions in his 2003 complaint were anonymous and/or posts by someone named Craig Harrison, made to the Freedomsite Message Board. The Freedomsite Message Board was totally shut down January 1, 2004. I received the complaint in I think April or May, 2004. So everything was removed PRIOR to me even receiving or knowing about the complaint.

The policy of the message board was not to remove any posts, unless they were specifically pointed out to me, and if I felt they might be a violation of the law.

The posts that Warman complained about, I had never seen before, did not know about them, nor did I post them. Warman chose NOT to tell me about them or complain, and instead brought me to the Star Chamber.

"2) Inform me as to whether Warman ever posted a reply to the hate/bigoted messages he cited; e.g. did he post messages that disputed the bigotry and hate messaging? (I assume the answer to this is "no" but just to clarify.)

Not that I am aware of.

"I am requesting the clarification because of statements made in Richard Warman's Section 13 complaint dated November 23, 2003 (which I already understand had to be reworded because the original filing did not name a person as the respondent)."

That’s not actually correct. The original complaint named me personally AND as a totally separate respondent it named “The Freedomsite www.freedomsite.org”. Both me and “the Freedomsite” has separate complaint numbers and were indeed separate, independent complaints. The CHRC can fine up to $10,000 per named respondent. So by naming the “The Freedomsite” they in theory wanted to double the fine against me.

Through my legal counsel Barbara Kulaszka – I made a lengthy motion to the Canadian Human Rights Tribunal that the domain name “www.freedomsite.org” is not a valid respondent, as it is not a person, organization, entity, etc. I won that, when Richard Warman withdrew his complaint against “www.freedomsite.org” on the day he had to answer my motion.

Funny in the first few months of my case before the Tribunal I won half of it. (because Richard Warman withdrew the complaint)

"The complaint lists several examples of bigoted speech (e.g., Jewish, Black jokes, etc.) and some comments posted on the Freedomsite message board that should be characterized as "hate speech," i.e., words that carry an incitement to murder (e.g., "we have to kill the french forigners from quebec," and "we all need to rise up and kill non whites because that's gods solution amen."

I looked through some of the material and can’t find those specific quotes, but some of the abusive message board posts, were of a similar vain.

Also, keep in mind that Section 13 does not cover alleged incitement to murder, the criminal code of Canada does. Warman freely admitted he went to the Toronto Police Service with those claims, and the police never even bother to contact me over his allegations. I assume because as a webmaster of an interactive message board, I am given “Common Carrier” Status, similar to something like the AOL message board or Usenet news groups. If there was a criminal issue, they could have contacted me and then I could have taken some form of action.

Like any other offense, there is a notice requirement, so that people who were in a position like myself, would be aware of what was there and then could have taken action. Say for instance, someone posted on my message board that “lets kill PUNDITA, and she lives at XXX and she has three children that go to XXX school, etc”

The notice requirement is required so that the owner is made aware. As part of our example, say I said I want to leave that online – screw PUNDITA! Then YES… I am liable for something. But that’s not the case with Section 13.

Also lets take it one step further. What if an old boyfriend of your felt slighted by the way in which the relationship ended, and decided to start posting on websites (including my message board) that you were generally bad, you were a whore, etc etc. They use my message board to go after you, WITHOUT the message board owners knowledge.

Who is the guilty party? The ex-boyfriend who targeted you, or the message board owner who had no idea? Section 13 makes it the message board owner.

Or how about this scenario, which has much basis in truth. Say a CHRC officer by the name of Dean Steacy, logged onto the Freedomsite Message Board, using a pseudonym, and pretended to be a “white nationalist” and posted (without my knowledge or approval) that Blacks are sick people and that Muslims should be shot due to the Sept 11 attacks?

Then a third party come along, and for the sake of argument lets pretend he is a co-worker of the CHRC employee that posted those comments, and he in turns complains about what the other CHRC employee posted. Take a guess under Section 13 who would be responsible? The message board owner….! Dean Steacy himself admitted to it, when my counsel cross-examined him.

Because Intent to discriminate as the Supreme Court of Canada ruled “is not a factor”. This means the mere fact it might hurt someone feels is all that matters. That’s the heart of the constitutional challenge of Section 13. It is not about me. But about the validity of the law.

In terms of the comments above, let me be crystal clear -- I do not support those comments, never have supported them, I did not post those comments, and of course being of French heritage myself, I certainly don’t support in any form the killing of French people (or anyone else for that matter)

But I do believe in free speech, and many many people went onto my message board, called me the nastiest of names, and I did NOT delete those posts. I believe in debate and open dialog. I really do wonder why open dialog really scares those that seek to repress ideas and control the free flow of information (like the CHRC) If their arguments were indeed so persuasive, they would much rather rent out Toronto’s SkyDome and debate me in public. But instead they use the immense power of the state to crush me into the ground. That alone speaks volumes about these people.

"He also cites that in February 2003 you posted to Freedomsite a Holocaust denial article written by Ian Macdonald."

The material written by Ian MacDonald is not holocaust denial at all. It seems to be to be a dry look at a few claims. But the most important fact isn’t what Macdonald wrote (and I 100% disagree with a few points he makes) – the most important point is:

directly below what Macdonald wrote, was a 100% opposing viewpoint to what Macdonald wrote. Isn’t that what free speech is? Macdonald takes a position and with the same prominence and effect, someone else can post a rebuttal?

The rebuttal in this case I think started with something like “your crazy, but…” then the poster went on to explain her position.

"The comments cited by Warman would invoke in any decent person reactions ranging from disgust to fear. So I think it's very important to nail down Freedomsite's policy toward such messaging prior to the CHRC complaint."

Message Boards, comment sections, guest books, interactive web content, “Web 2.0”, social networking sites, etc, they are all apparently “valid” targets of people who seek to repress ideas and information.

In my case, I had a message board for people to discuss the issues of the day. In order to join my site you had to agree you would not post anything in violation of Canadian law. And to get my site shut down (which is what Warman and the CHRC wanted as a remedy on the Section 13 case) suddenly posts started to appear that would lead to this long fight.

None were written by me. None were approved by me, Most I didn’t even know about. And WITH NO WARNING (unlike Libel/defamation, which is a requirement) under the Kangaroo Court, I am guilty simply for the fact they appeared in a webspace that I owned. This is wrong, and that’s why I chose to fight so hard.

It’s like writer Deborah Gyapong wrote recently. If I were really such a bad guy, why did so many set me [up] and need to entrap me?
Marc Lemire

I think the toughest-minded readers will ask whether it's plausible that the CHRC did not forward Warman's complaint to Marc until about five months after receiving it.

I think it's plausible, which doesn't necessarily mean Marc is telling the truth or that his memory on the point is clear.

Yet one might also ask whether it's plausible that a French Canadian would knowingly keep posted on his site bigoted and threatening remarks about French Canadians.

Ironically, I chose the hate message against French Canadians almost at random for inclusion in my email; I was just looking for a few examples from Warman's complaint that specifically contained a death threat at Marc's site.

Before I clicked the 'send' button on my email to Marc, I recalled his mentioning to me months before that he was of French ancestry. I thought, 'That's odd; why would he knowingly keep such a threat on his site?'

Indeed.

However, Richard Warman didn't pick Marc's website out of a hat; the site and its message board were controversial enough to have attracted his attention. Many bloggers have learned the hard way that the more controversial their topic, the more carefully they have to monitor their comment section. This can be a huge problem when daily comments can run into the hundreds. The problem vastly increases when it comes to managing message boards.

Yet the largest truth is that Marc Lemire kept his site within the letter of the law -- without fully realizing that there was a shadow justice system in effect in Canada, a system that could circumvent virtually all laws on the books. In his discussion of the Canadian Constitution Federation decision to intervene in his case, Marc observes:

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.

Truer words were never spoken, and it's on the basis of that truth that I defend Marc Lemire's position and give him the benefit of the doubt at every turn. Everyone who respects the rule of law must do the same.

Readers who want to respond to Marc's request for help in appealing to civil liberties associations to intervene in his case should visit his website at the link in the first sentence of this post, or click here. The link provides the names, addresses and emails for the associations.
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10:15 PM ET UPDATE
Just received this from Marc Lemire, in response to my question about the plausibility of his claim that the CHRC did not forward him Lemire's Section 13 complaint for about five months:

"The CRHC not forwarding the complaint to me for months is a typical thing they do. They did a similar thing to freedominion. Here are the dates:

November 24, 2003
Initial Complaint laid by Warman against Marc Lemire and “The Freedomsite”

February 13, 2004
CHRC (from Suzanne Best) sends a letter to me informing me of complaint against Marc Lemire and “The Freedomsite”. Assigned Hannya Rizk as the investigator. Gives me until March 9, 2004 to respond.

March 24, 2004
I receive the registered letter from CHRC.

March 26, 2004
Call the CHRC and get an extension to April 26, 2004 to retain a lawyer to respond to their letter."
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10:55 PM ET Update
Just received yet more vital information from Marc Lemire which I REALLY wish he'd sent me earlier today. I will put up a post tomorrow on the latest revelation.
May 5 11:25 PM Update
Obviously there has been in delay in my putting up the second post; frankly at this point I don't know whether I'll post it tomorrow or Wednesday.