RadicalPress.com Constitutional Challenge to Sec. 13 of the Canadian Human Rights Act

[With apologies to Roy Peterson-Ed.]
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[Editor's Note: As part of my overall purpose in challenging B'nai Brith Canada's right to use the Canadian Human Rights Act to censor debate on political issues - specifically issues related to the ideology known as Zionism and its manifested forms throughout democratic and non-democratic nations of the world, including Israel and Palestine -  the illegality and the supreme danger to Canada of this specious piece of federal legislation known as Section 13(1) of the Canadian Human Rights Act has to be challenged from every angle humanly and legally possible. That is why I deemed it necessary to include it in my current case involving Harry Abrams and League for Human Rights of B'nai Brith Canada.

There is a similar challenge that has already gone through the hearing process, one initiated by Marc Lemire. Please see the following Part 1 of the challenge at http://www.freedomsite.org/legal/Closing_submissions_constitutional-part_1.html and Part 2 at http://www.freedomsite.org/legal/Closing_submissions_constitutional-part_2.html

That decision in that case was reserved and should be handed down within the next couple of months. I say should but it could be delayed longer. In the interim period the Tribunal juggernaut continues to move onward in its relentless quest for new victims to grind into the dust along with the rights they are fighting to preserve.

Eventually Canadians are going to HAVE TO wake up to what is being perpetrated upon them.]

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RadicalPress.com Constitutional Challenge to Sec. 13 of the Canadian Human Rights Act

Filed March 21, 2009

TRIBUNAL FILE NUMBER T1360/9006

CANADIAN HUMAN RIGHTS TRIBUNAL BETWEEN:

HARRY ABRAMS and THE LEAGUE FOR HUMAN RIGHTS OF B’NAI BRITH CANADA

COMPLAINANTS

AND

CANADIAN HUMAN RIGHTS COMMISSION

AND

ARTHUR TOPHAM and RADICALPRESS.COM

RESPONDENTS

NOTICE OF CONSTITUTIONAL QUESTION

The applicant, Arthur Topham, intends to question the constitutional applicability, validity and effect of sections 13 and 54 (1), (1.1)  of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (herein after referred to as the “CHRA”).

The question is to be argued in a motion in writing filed with the Canadian Human Rights Tribunal.

The following are the material facts giving rise to the constitutional question: The Canadian Human Rights Commission requested the Canadian Human Rights Tribunal  to appoint a panel to inquire into a complaint laid against myself, Arthur Topham and my website RadicalPress.com under section 13 of the Canadian Human Rights Act. The complaint alleges that Arthur Topham and RadicalPress.com contrive to promote ongoing hatred affecting persons identifiable as Jews and/or as citizens of Israel by publishing articles on RadicalPress.com believed by the complainants to be discriminatory against these two groups.

Arthur Topham is bringing a motion before the Tribunal for relief under sections 24(1) of the Canadian Charter of Rights and Freedoms and section 52 of the Constitution Act, 1982, and section 2 of the Canadian Bill of Rights on the grounds that sections 13 and 54(1), (1.1)  of the Canadian Human Rights Act are  a violation of sections 2 (a) and (b), 7, 26 and 31 of the Charter, not saved by section 1 thereof, and sections 1 (d) and (f) of the Canadian Bill of Rights.

The following is the legal basis for the constitutional question:

Section 13 of the CHRA was held to be in violation of the right to freedom of expression guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms by the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. The Court upheld the constitutionality of section 13, however, on the grounds that it was a reasonable limit on that freedom prescribed by law that was demonstrably justified in a free and democratic society pursuant to section 1 of the Charter.

The Taylor decision was based on an earlier legislative version of section 13 of the CHRA which limited the provision to the communication of hate messages using a telephone and limited penalties to a cease and desist order. The Act was amended in 1998, c.9, s.28 and 2001, c. 41, s. 88 to extend the application of section 13 to computer networks, including the Internet, and to introduce harsh financial penalty provisions in section 54 in addition to the previous cease and desist order provisions.

The applicant will be arguing that section 13 of the CHRA no longer meets the criteria in section 1 of the Charter  regarding freedom of expression and cannot be saved thereunder. The provision is, in essence, one of criminal law but one which provides no procedural safeguards, no defence of truth, lack of intent, or the fact that the messages may be privileged, fair comment or made in private communications. It is made applicable to the Internet, a medium far different from the taped voice messages on a telephone dealt with by the Supreme Court of Canada in the Taylor case.

Moreover, he will argue that the freedoms enjoyed by Canadians under the law in the 1950′s cannot be destroyed using section 1 of the Canadian Charter of Rights as a justification; and, further, that such freedoms are preserved by virtue of the Canadian Bill of Rights and section 26 of the Charter. Parliament has no jurisdiction under the Constitution Act, 1867, to abrogate the right of citizens in a democracy to discuss matters of public policy and administration, be it social, economic or political.

Switzman v. Elbling, [1957] S.C.R. 285, Boucher v. The King, [1951] S.C.R. 265 and Reference re Alberta Statutes, [1938] S.C.R. 100 will be relied upon.

Section 13 is not rationally connected to the legislative objective of promoting social harmony and individual dignity, since there can be no true social harmony between groups when truth is not the basis of this harmony.

There is no proportionality between the effect of the measures which limit the Charter right to freedom of speech and the legislative objective of section 13(1) of the Act. It is overbroad and fails to impair freedom of speech as little as possible, thereby having a severe chilling effect on legitimate expression on the Internet which includes newspapers, journals, magazines, videos, radio, audio, and discussion rooms. The definitions of “hatred” and “contempt” in practical effect are so vague as to include virtually any legitimate and verifiable criticism of the actions of an identifiable group.

Section 13  is a violation of the freedom of conscience because it denies the individual the right to speak the truth if that truth is deemed to expose identifiable groups to hatred or contempt.    Where truth is no defence to charges under section 13(1) of the Act, there is no objective standard for judging what is “hatred” or “contempt”.

Section 13 violates all rights to privacy as it applies to private communications.

The penalty provisions make clear that while section 13 masquerades as a remedial anti-discriminatory measure, it is in essence a criminal provision enforcing a moral code and inflicting punishment against the offender for violations against the State, not simply infringement of an individual’s rights for which compensation might be paid.

The deleterious effects of section 13 of the Act on the right to freedom of expression and conscience far outweigh the benefits derived from the provision. Hatred and contempt against groups arises from everyday news events. Published in newspapers and broadcast facilities, these matters have the defences of truth, privilege and fair comment according to libel law.

Such further and other grounds as I, Arthur Topham, pro se may advise and the Tribunal allow.

DATED this 21st day of March,  2009.

______________________
Arthur Topham pro se
4633 Barkerville Hwy
Quesnel, B.C. V2J 6T8
Tel: 250-992-3479
Fax: 250-992-8033
—————————

FAXES SENT TO:

The Canadian Human Rights Commission,
344 Slater St.,
Ottawa, ON,
K1A 1E1
Counsel: Daniel Poulin
FAX: 613-993-3089

Harry Abrams, Complainant
c/o
The Canadian Human Rights Commission,
344 Slater St.,
Ottawa, ON
K1A 1E1
FAX: 613-993-3089

League for Human Rights of B’nai Brith Canada, Co-complainant
c/o
The Canadian Human Rights Commission,
344 Slater St.,Ottawa, ON
K1A 1E1
FAX: 613-993-3089

Arthur Topham and RadicalPress.com
c/o
The Canadian Human Rights Commission,
344 Slater St.,
Ottawa, ON
K1A 1E1
FAX: 613-993-3089

The Attorney General of Newfoundland,
Department of Justice,
4th Fl., Confederation Bldg. E., P.O. Box 8700,
St. John’s, Newfoundland
A1B 4J6
FAX: 709-729-2129

The Attorney General of Nova Scotia,
Department of Justice,
4th Fl., 5151 Terminal Rd., Box 7,
Halifax, Nova Scotia,
B3J 2L6
FAX: 902-424-1730

The Attorney General of New Brunswick,
Department of Justice,
P.O. Box 6000,
Fredericton, New Brunswick,
E3B 5H1
FAX: 506-453-3651

The Attorney General of PEI,
Department of the Attorney General,
16 Fitzroy St. P.O. Box 2000,
Charlottetown, PEI
C1A 7N8
FAX: 902-368-4910

The Attorney General of Quebec,
Department of Justice,
1200 route de l’Eglise,
Sainte-Foy, Quebec
G1V 4M1
FAX: 418-646-0027

Attorney General of Ontario,
720 Bay St.,
Toronto, ON
M5G 2K1
FAX: 416-326-4015

The Attorney General of Manitoba,
Department of Justice
Constitutional Law Branch,
405 Broadway, 12th Fl.,
Winnipeg, Manitoba
R3C 3L6
FAX: 204-945-0053

The Attorney General of Saskatchewan,
Department of Justice,
355 Legislative Bldg.,
Regina, Saskatchewan,
S4S 0B3
FAX: 306-787-1232

The Attorney General of Alberta,
Department of Justice,
9833-109th St.,
Edmonton, Alberta
T5K 2E8
FAX: 780-422-6621

The Attorney General of British Columbia,
Department of Justice,
1001 Douglas St., P.O. Box 9280,
Stn. Prov. Govt.,
Victoria, British Columbia
V8V 1X4
FAX: 250-387-6224

The Attorney General of the Yukon Territory,
Department of Justice,
Box 2703 (J-1),
Whitehorse, Yukon Territory,
Y1A 2C6
FAX: 867-393-6252

The Attorney General of Nunavut,
Department of Justice,
P.O. Bag 1000, Stn. 500,
Iqaluit, Nunavut,
X0A 0H0
Fax: 867-975-5051

The Attorney General of Canada,
Department of Justice,
284 Wellingston St.,
Ottawa, ON
K1A 0H8
Fax: 613-954-0811