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Thread: Canadian Association for Free Expression - Paul Fromm

  1. #1
    Pearson is offline My Real Name is Aaron Pearlston Member Pearson is on a distinguished road
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    Default Canadian Association for Free Expression - Paul Fromm

    News from Paul Fromm's Organization the Canadian Association for Free Expression

    CAFE Granted Intervener Status in Lemire Section 13 Appeal in Federal Court



    MARC LEMIRE'S WEBSITES
    http://www.freedomsite.org/
    http://www.stopsection13.com/

    Contact information available on website. This is just in case Warman or anyone else decides to pulls somemthing stupid. Easily available on the site front page.

    Dear Comrades:

    The Canadian Association for Free Expression (CAFE) has been granted INTERVENER STATUS before the Federal Court of Appeals in the Warman v. Lemire case. this was the Sec. 13 (Internet censorship) complaint filed by Warman in 2003. CAFE has stood with Marc as an intervener from the beginning, through the six years before the Canadian 'Human Rights' Tribunal leading up to his victory, September 2, 2009, where Section 13 was essentially declared unconstitutional.

    The chagrined Canadian Human Rights Commission sought judicial review (appealed in Federal Court). Again, CAFE sought and was granted intervener status, but not before a long costly battle against the objections of complainant Richard Warman and the CHRC to our participating.The case was heard, December 11, 2011. The Federal Court judge who heard the case, did not recuse himself despite having been a senior Department of Justice lawyer in 2001 who had assured MPs and the media that Bill C-36 (the anti-terrorist act, which among other things, gave control of the Internet to the CHRC) was constitutional. While he ruled that the fines added to the Human Rights Act in 1998 were unconstitutional, he upheld the constitutionality of Sec. 13.

    So, Marc appealed to the Federal Court of Appeal. CAFE sought intervener status again. Again, the CHRC objected. Our new lawyer Barclay Johnson had to fight off the objections. His skillful lawyering prevailed, but the CHRC had accomplished its goal of running up the costs of anyone who defends free speech.

    Anyway, we're in as the enclosed order shows.

    We could not have come this far without the loyal support of freedom loving idealists like you. I again ask for your support to continue the fight.

    Paul Fromm

    Director

    =====================

    Canadian Association for Free Expression (don;t include in title when sending mail)
    Post Office Box 332
    Rexdale, Ontario M9W 5L3

    Here’s my donation of $ to help the Canadian Association for Free Expression (CAFE) intervene in the Federal Court of Appeals in the Marc Lemire case.


    Here's my special donation of $ to help the Canadian Association for Free Expression (CAFE) pay off its legal bills in the Warman libel suit. This is when Paul was sued for $43000 by Warman for calling him a censor of all things.

    Please renew my subscription for 2013 to the Free Speech Monitor ($15) I didn;t know it was that cheap, well worth subscribing to. The Canadian Immigration Hotline is larger and is $45. Anyone who would like a sample copy email either paul or myself. Paul can be reached at paul@paulfromm.com

    Note: Use money orders or cash. Canadian money orders will be easier and postal ones even easier to get through. U.S. money orders will take 30 days to process, believe me I've checked, and yes, that includes USPS money orders.

    In order to subscribe to the latest news oconcerning freedom in Canuckistan please contact Paul Fromm at paul@paulfromm.com

    CAFE's Paul Fromm presenting Marc Lemire With CAFE "Freedom Award" and
    a substantial donation, December 11, 2011 in Toronto.

    http://canadianfreespeech.com/cafe/cafe-new-updates
    http://blog.freedomsite.org/2013/04/...tatus-for.html

    See court information below the line.
    __________________________________________________ _______________

    Date: 2013/04/26
    YYYY/MM/DD
    Docket: A-456-12

    Ottawa, Ontario
    April 26, 2013

    Present: NADON J.A.

    BETWEEN:

    MARC LEMIRE - Appellant

    and

    CANADIAN HUMAN RIGHTS COMMISSION

    THE ATTORNEY GENERAL OF CANADA

    RICHARD WARMAN

    Respondents

    and

    AFRICAN CANADIAN LEGAL CLINIC (PUKE)

    CANADIAN CIVIL LIBERTIES ASSOCIATION http://www.ccla.org/

    CANADIAN ASSOCIATION FOR FREE EXPRESSION http://www.canadianfreespeech.com/ http://www.cafe.nfshost.com/

    Interveners

    ORDER

    UPON notice of motion by the Canadian Association for Free Expression (CAFE) for an Order granting it leave to intervene in this appeal;

    AND UPON the affidavit of Frederick Paul Fromm sworn February 4, 2013;

    AND UPON CAFE’s written representations;

    AND UPON the respondent, Canadian Human Rights Commission’s motion record in response to CAFE’s motion including its written representations;

    AND UPON CAFE’S reply;

    THE COURT ORDERS

    1. CAFE is granted leave to intervene in this appeal pursuant to Rule 109 of the Federal Courts Rules.

    2. CAFE is granted leave to file a memorandum of fact and law, at their discretion, a book of authorities. The memorandum of fact and law shall not exceed 15 pages in length and shall be filed no later than 15 days from the date of this Order.

    3. Unless otherwise ordered or directed by the panel at the hearing of the appeal, CAFE is granted leave to make oral arguments of no more than 20 minutes at the hearing.

    4. No costs of the appeal shall be sought nor awarded by or against CAFE.

    5. The style of cause is amended accordingly.

    “M. Nadon”

    J.A.

    I'll try to keep these updates coming. Anything of major importance will definetly be posted. Email Paul for all updates regarding CAFE just incase I forget to post all of them. Paul can be reacehd at paul@paulfromm.com

    Douglas


    http://whitenationalist.org/forum/sh...=8407#post8407

    Last edited by Pearson; 08-07-2013 at 07:13 AM.
    CANADIAN ORGANIZATIONS
    Canadian Association for Free Expression - Paul Fromm
    https://www.cafe.nfshost.com
    https://www.canadianfreespeech.com/
    National Socialist Party of Canada - Terry Tremaine
    https://www.nspcanada.nfshost.com/
    Alliance of the North - François Bélanger
    https://www.alliancedunord.ca/
    https://www.saveyourdistrict.ca/
    Freedomsite - Marc Lemire
    https://www.freedomsite.org/
    Radical Press - Arthur Topham
    https://www.radicalpress.com/
    HAIL VICTORY!!
    Douglas

  2. #2
    Pearson is offline My Real Name is Aaron Pearlston Member Pearson is on a distinguished road
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    Default Council of Conservative Citizens Speeches

    Taylor & Fromm: America`s Thought Taboos & Clear Thinking on Immigration




    http://whitenationalist.org/forum/sh...=8858#post8858


    http://ymlp297.net/zQXXWz

    North Carolina, June 8th, 2013

    JARED TAYLOR - AMERICAN RENAISSANCE http://www.amren.com/

    Post Office Box 527
    Oakton, Virginia (VA) 22124
    UNITED STATES OF AMERICA

    Jared Taylor denounced the U.S. as a land of "soft tyranny and intellectual taboos" and Paul Fromm offered a number of arguments for activists to use to help other Whites see through the fog on immigration and amnesty. Both long-time activists were the main afternoon speakers at the annual meeting of the Council of Conservative Citizens held here.

    "America is a land of taboos, of things we cannot say or must not think," Mr. Taylor, a linguist and founder of American Renaissance told his luncheon audience. "Taboos, in most societies, are things people agree are wrong." In America criticism of the European-replacing immigration flood and any realistic view of racial differences are taboos.

    The story of Dr. Jason Richwine, recently of the Heritage Foundation in Washington, DC., is a good example of the taboo, Mr. Taylor explained." If you`re going to take a bunch of illiterate Mexican and Guatemalans and try to make them into Americans, there is going to be a cost. Dr. Richwine`s study found that amnesty would impose a huge financial cost ($6.3-trillion!) and that these people are not good prospects for immigration. The enemies of free speech scoured around and found that Dr. Richwine`s Ph.D. thesis dealt with racial differences and found that Mexicans had relatively low I.Q.s. The craven Heritage Foundation quickly fired this Harvard grad who has a wife and two kids," Mr. Taylor said.

    Another example, Mr. Taylor added, was Dr. James Watson. "The discoverer of DNA told a reporter that one day scientists will find the gene that makes many Blacks less intelligent. Although he grovelled and licked every boot in sight, Cold Spring Harbour Laboratories still fired even, even though he was a Nobel Prize winner," Mr. Taylor explained.

    "'Racism` we are to believe is the reason for the poor performance of Blacks and Hispanics in school. Yet, we can`t find anyone putting a gun to some Black`s head and saying, `Go and get your girlfriend pregnant and go and fail that geometry exam or I`ll shoot you,'" Mr. Taylor said. "When bad things happen to non-Whites, it`s not because they are stupid or lazy or victims of bad luck," he added. "Ànti-racists are like superstitious Maori who blame all misfortunes on witches. Our establishment, unable to find individual discrimination, blame institutional racism`and White privilege."

    "Jason Richwine, Kevin Lamb, Jr., Joseph Sobran, Frank Borzellieri, James Watson and, most recently CofCC Board member Roan Garcia-Quintana (`born in Havana, raised in Savannah`) have all been roasted as witches,"Mr. Taylor charged. `"Republican Gov. Nikki Haley of South Carolina recently dropped Mr. Garcia-Quintana from her re-election committee because of his ties to the CoCC," he explained.

    "Ìn this age of soft terror, we must believe women have exactly the same kind of mind as men and all want to be construction labourers, auto mechanics or plumbers. And, if there arè not an equal number of women in these professions, it`s the result of a male conspiracy, we are told," Mr. Taylor added.

    Mr. Taylor drew hearty laugher when he quipped: "Desert dwellers should not be lecturing people in the forests about trees. In the 1960s, the Swedes, like Gunnar Myrdal, looked down their noses at the U.S. for its treatment of Blacks but Sweden had no Blacks!"

    Taboos cripple many areas of public policy making, Mr. Taylor explained. "Sending the child-bearing sex into combat is stunningly stupid," he said. "Yet, when Defence Secretary Panetta opened combat roles up to women, no serving officer objected because they knew it would be career suicide to speak the truth."

    And it's the same situation with Moslems, he added. "We're all supposed to be equal, they tell us. If we just treat Moslems right, they'll be good and grateful. However, when there's yet another arrest of Moslems trying to kill us, we're not supposed to see a pattern."

    "Of all the patterns of behaviour we're not supposed to notice is Black behaviour. If we were to notice low average Black IQ, it might hurt their feelings and turn them to crime or welfare of unwed fatherhood.," he said to a burst of laughter.

    "If they are told that Whites are somehow to blame for Black lack of achievement, you've given them a great reason to hate us," he argued. Liberals treat Blacks like children "and keep them from growing up and being responsible and learning that sometimes you don't make the team because others play the sport better than you do."

    The soft tyranny of taboo threatens our very existence, Mr. Taylor warned. "If all groups are equal, maybe it doesn't matter if we're replaced. Maybe it would even be a good thing as we're supposedly the scourge of history. Amnesty is really an argument over how quickly the Majority population of America will be replaced," he insisted. "The Federal Government along with universities and big corporations are the most deadly enemies of our Race and our People," he told a hushed audience. "The very people who should be our allies and leaders are our enemies," he concluded to a standing ovation.

    PAUL FROMM - CANADIAN ASSOCIATION FOR FREE EXPRESSION

    Post Office Box 332
    Rexdale, Ontario (ON) M9W 5L3
    CANADA

    http://www.canadianfreespeech.com/ Canadian Association for Free Expression
    http://www.cafe.nfshost.com/ Canadian Association for Free Expression

    International Director Paul Fromm of the Canada First Immigration Reform Committee heaped scorn on establishment arguments for more immigration "We're regaled with stories of the ageing baby boomers and a skills shortage just over the horizon," he said. "With today's rapidly changing technology, it's impossible to accurately predict labour needs six years out. However, he added, "if businesses really believe there'll be a shortfall of over a million workers trained in the sciences in 2018, why don't they put their money where their mouths are and offer scholarships in the sciences to worthy students who will contract to work for them for 5 or 10 years after graduation?" he demanded.

    Many businesses, he added, just want a pool of cheap labour. "Hence their support for mass Third World immigration. Last month's unemployment figures showed 7.3% of Americans -- millions of disappointed and desperate citizens -- out of work. Until there is full employment, there should be a complete moratorium on immigration. Cut it all out," he thundered.

    There are two separate immigration issues, Mr. Fromm explained. The current debate about yet another amnesty for illegals shouldn't even be happening. "They are illegals. The establishment press tries to fudge the issue by labelling them 'undocumented migrants.' They didn't forget their documents on the bureau this morning. They don't have any," he said to waves of laugher. " They are illegals! That is: They are unlawfully in the U.S. They should be rounded up and deported, no questions asked," he argued.

    The more serious question is legal immigration, Mr. Fromm continued. "Given the present below-replacement White birth rate and the million plus wave of legal, mostly Third World, annual immigration, the European founding/settler people will be a minority by 2041. This is ethnic cleansing on the installment plan," Mr. Fromm charged.

    "We need a minimum five year moratorium on all immigration," he said. "In talking to your colleagues, neighbours and relatives, the best way to sell a moratorium is simple logic. With high unemployment -- the real, not the official, rate may be above 15% -- there are only two possibilities," he said. "Pedro will get a job. Hooray for Pedro but this means an American does not get a job. America loses. Or, Pedro does not get a job. America must care for him on welfare and house him and medicate him. Sad for Pedro and again America loses. It's our task as activists to help our fellow Whites see through the fog of lies and phoney arguments and see their own interests clearly," the Canadian broadcaster and former educator concluded.

    HAIL VICTORY!!

    Douglas


    Last edited by PastorLindstedt; 06-29-2013 at 10:31 AM.
    CANADIAN ORGANIZATIONS
    Canadian Association for Free Expression - Paul Fromm
    https://www.cafe.nfshost.com
    https://www.canadianfreespeech.com/
    National Socialist Party of Canada - Terry Tremaine
    https://www.nspcanada.nfshost.com/
    Alliance of the North - François Bélanger
    https://www.alliancedunord.ca/
    https://www.saveyourdistrict.ca/
    Freedomsite - Marc Lemire
    https://www.freedomsite.org/
    Radical Press - Arthur Topham
    https://www.radicalpress.com/
    HAIL VICTORY!!
    Douglas

  3. #3
    Pearson is offline My Real Name is Aaron Pearlston Member Pearson is on a distinguished road
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    Default Marc Lemire - Section 13 Repeal - What Does It Mean For Victims of Section 13?

    Section 13 Repeal - What Does It Mean For Victims of Section 13?

    http://ymlp.com/zAGTKN

    http://blog.freedomsite.org/2013/07/...-mean-for.html

    http://www.freedomsite.org/legal/cha...section13.html[/B]

    Marc's new site looks excellent. Much better compared to the old one. Great work Marc!

    http://www.stopsection13.com/history_of_sec13.html



    History of Section 13



    Genesis of Section 13

    From Taylor to “Terrorism”



    In November of 1975, Ontario’s Deputy Attorney General, F.W. Callaghan, lobbied the Federal Department of Justice demanding the inclusion of speech-restricting legislation that removed the need for “willfulness” or fair comment based on public interest.

    In a letter dated November 13, 1975, F.W. Callaghan outlined some of the problems they faced when trying to “get” a man named John Ross Taylor, who was recording messages on his telephone answering machine that members of the public could dial up and listen to. In reference to his taped telephone answering machine, Callaghan stated:

    “The messages usually are topical and political and focus on a wide variety of subjects. However, the emphasis always is racial and federal immigration policies frequently are criticized.”



    Callaghan continued in his letter: “The messages discuss such matters as immigration, integration and urban crime, all of which clearly are matters of public interest.”

    The real intent of Section 13 was to silence legitimate non-violent criticism of immigration, crime, multiculturalism and integration. Ontario’s Deputy AG Callaghan summed up the true motivation behind silencing Taylor using the Human Rights Act:

    “The simple forced deletion of the message which I have proposed could have a major advantage over a criminal prosecution in that, presumably, it would not be attended by great publicity whereas a criminal prosecution, through publicity and polarization, might promote the mischief which it sought to suppress.”[

    1]

    In 1976, the Federal Government was looking at a larger Act for employment issues and the provision of federally regulated services. This Act eventually would end up with the innocuous sounding name: the Canadian Human Rights Act. Although no other section of the Human Rights Act covered speech, it was not a problem for the Federal government to capitulate and slip in an extra section to satisfy Ontario’s Attorney General’s lust to silence John Ross Taylor and his home-based answering machine.

    During the initial discussions on Section 13, it became clear that there was much discussion about adding intent, truthfulness, artistic expression and other defenses to the act. But as the law wound it way through the legislative review process and at the behest of special interest groups, all defenses were removed. After all, a good gag law can’t have any pesky defenses that the poor defendants could use to prove their innocence. And in the case of John Ross Taylor, even Ontario’s AG conceded that what Taylor was doing on his answering machine was “topical and political and focus on a wide variety of subjects.” Thus a defense of fair comment and political commentary in the public interest would clearly have applied to Mr. Taylor.

    In a memorandum to cabinet presented by the then Liberal Justice Minister Ron Basford, described Section 13 as clearly remedial in nature. “However, this amendment would not expose anyone to prosecution, would not involve penalties, and no coercive action would be taken unless the ‘good offices’ of the Commission failed to dissuade the person responsible.”[2]

    On July 14, 1977, Bill C-25 “Canadian Human Rights Act,” was passed by the House of Commons and went on to receive Royal Assent.[3] Only a few years after the law was enacted, Mr. Callaghan finally got his wish and John Ross Taylor became its first victim, with the Canadian Human Rights Commission itself and several professional Jewish groups[4] as the complainants.

    Since the law was first enacted, two major changes were made to Section 13. These changes fundamentally shifted the original intent of the legislation, and turned Section 13 into an instrument to financially and morally punish those with politically incorrect views.

    The first change to the legislation occurred on May 15, 1998, when Royal Accent was given to Bill S-5 (1998), which added a new penalty provision to the Canadian Human Rights Act. Bill S-5 added Section 54 to the Canadian Human Rights Act, and allows the Human Rights Tribunal to impose a financial penalty of up to $10,000. On top of the fines, Section 54 also gave the fanatical Tribunal the ability to impose penalties of up to $20,000 as so-called “special compensation.”

    According to the background section of Bill S-5, these penalties were added “as a response to the rising incidence of hate crimes around the world. The government believes that stronger measures are needed to deter individuals and organizations from establishing hate lines. It hopes to accomplish this by allowing victims of such lines to apply for compensation and subjecting offenders to financial penalty.” [5]

    The second change occurred in the aftermath of the terrorist attacks of September 11th 2001. Sadly, this legislation equated non-violent politically incorrect words – which are covered by Section 13 – with terrorism and concerns of national security. Under the guise of Bill C-36 - Canada’s Anti-Terrorism Act,[6] Section 13 was expanded to cover “a group of interconnected or related computers, including the Internet.” This change, gave the power to Canadian Human Rights Commission to censor the internet and harass Canadians with views that the Rights Fanatics disagree with.

    This change was made according to Preamble of Bill C-36 to allegedly “combat terrorism.”[7]

    The Preamble of C-36 states:

    “WHEREAS acts of terrorism constitute a substantial threat to both domestic and international peace and security;

    WHEREAS acts of terrorism threaten Canada’s political institutions, the stability of the economy and the general welfare of the nation

    WHEREAS the challenge of eradicating terrorism, with its sophisticated and trans-border nature, requires enhanced international cooperation and a strengthening of Canada’s capacity to suppress, investigate and incapacitate terrorist activity;

    AND WHEREAS these comprehensive measures must include legislation to prevent and suppress the financing, preparation, and commission of acts of terrorism, as well as to protect the political, social and economic security of Canada and Canada’s relations with its allies;”

    [8]

    With these changes, fanatical tribunal members now have the ability to both assess hefty fines and a “Cease and Desist” order. These orders include a permanent lifetime speech ban, which were designed to permanently gag a victim for his entire life. The “Cease and Desist” orders are registered with the Federal Court of Canada and become an enforceable order of the Court. If the victim still doesn’t shut up, he could face up to 5 years in jail for contempt of court.[9] Several victims of Section 13 have been jailed for violating the highly vague and subjective “Cease and Desist” orders. These include John Ross Taylor,[10] Wolfgang Droege, Kenneth Barker, Gary Schipper and Tomasz Winnicki.[11]

    In 1990 the Supreme Court of Canada ruled in the Taylor case[12] that Section 13 of the Canadian Human Rights Act was constitutional, but by the slimmest of margins, with a 4-3 split decision. To date, this has been the only constitutional test of Section 13 to ever reach the Supreme Court. It should be noted that Madame Justice McLachlin delivered the dissenting opinion, saying that Section 13 was a violation of freedom of speech and should be wiped from our law books. On January 7, 2000, Madame Justice McLachlin was appointed as the Chief Justice of Canada. [13]

    In the Supreme Court ruling delivered by Chief Justice Dickson, the legislation was upheld because it was never meant to assign any “moral blameworthiness” but rather directs its attention to redress and mediation. The decision is replete with numerous references to “remedial” (8x), and “conciliatory” (5x).

    Chief Justice Dickson held in Taylor that:

    "The chill upon open expression in such a context [of a human rights statute] will ordinarily be less severe than that occasioned where criminal legislation is involved, for attached to a criminal conviction is a significant degree of stigma and punishment, whereas the extent of opprobrium connected with the finding of discrimination is much diminished and the aim of remedial measures is more upon compensation and protection of the victim. As was stated in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134, under a human rights regime: "It is the [discriminatory] practice itself which is sought to be precluded. The purpose of the Act is not to punish wrongdoing but to prevent discrimination. The last point is an important one and it deserves to be underscored. There is no indication that the purpose of the Canadian Human Rights Act is to assign or to punish moral blameworthiness."



    Thanks to the vindictive social engineers that staff the Human Rights Commission, Section 13 has become the complete opposite of remedial. The law is now used by special interests to silence Canadians through a series of impact prosecutions which have a direct and chilling effect on freedom of speech and thought.

    Section 13(1) of the Act infringes the guarantee of freedom of expression in s. 2(b) of the Charter. Where, as in this case, an activity conveys or attempts to convey a meaning or message through a non-violent form of expression, this activity falls within the sphere of the conduct protected by s. 2(b).

    Dissenting Opinion on Section 13



    Supreme Court of Canada – Taylor Case



    On September 2, 2009, the Canadian Human Rights Tribunal found that Section 13 and 54 of the Canadian Human Rights Act was unconstitutional. As a result the Tribunal Chair, Mr. Hadjis, refuses to apply the Human Rights Act against Marc Lemire.

    The ruling stated:

    [279] This question, however, is not what is relevant to the present discussion. The point is that, when assessed against the characteristics of the penalty provisions enumerated in these decisions, it is evident that s. 13(1) has become more penal in nature (irrespective of whether s. 11 Charter rights are necessarily triggered). The provision can no longer be considered exclusively remedial, preventative and conciliatory in nature, which was at the core of the Court’s finding in Taylor that s. 13(1)’s limitation of freedom of expression is demonstrably justifiable in a free and democratic society, and thereby “saved” under s. 1 of the Charter.
    ...

    [290] Thus, following the reasoning of Justice Dickson, at 933,one can no longer say that the absence of intent in s. 13(1) “raises no problem of minimal impairment” and “does not impinge so deleteriously upon the s. 2(b) freedom of expression so as to make intolerable” the provision’s existence in a free and democratic society. On this basis, I find that the Oakes minimum impairment test has not been satisfied, and that s. 13(1) goes beyond what can be defended as a reasonable limit on free expression under s. 1 of the Charter.

    c) Conclusions with respect to the claim of infringement on the freedom of expression

    [295] For all the above reasons, I find that s. 13(1) infringes on Mr. Lemire’s freedom of expression guaranteed under s. 2(b) of the Charter, and that this infringement is not demonstrably justified under s. 1 of the Charter.

    ...

    V. CONCLUSION
    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), [1991] 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 (see Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at paragaphs. 26-27).

    On January 25, 2010, the Lemire decision was appealed by the Canadian Human Rights Commission to the Federal Court of Canada.

    --------------------------------------------------------------------------------

    [1] Letter from F.W. Callaghan, Ontario Deputy Attorney General to D.H. Christie, Assistant Deputy Attorney General, Federal Department of Justice. November 13, 1975.

    [2] Confidential Memorandum to Cabinet. Cabinet Document 156/76. March 12, 1976 on Bill C-72 “Canadian Human Rights Act”

    [3] Canadian Human Rights Commission publication. “Hate messages and Section 13 of the Canadian Human Rights Act - Legal Milestones” http://www.chrc-ccdp.ca/proactive_in...estones-en.asp

    [4] Canadian Holocaust Remembrance Association and the Toronto Zionist Council were listed complainants. CHRC v Taylor, Canadian Human Rights Tribunal. T.D. 1/79.

    [5] Bill S-5: An Act to amend the Canada Evidence Act, the Criminal Code, and the Canadian Human Rights Act. (1998) Section: Background. http://dsp-psd.tpsgc.gc.ca/Collectio...htm#BACKGROUND

    [6] Bill C-36. Anti-terrorism Act. Subsection 88.

    [7] Bill C-36. Anti-terrorism Act. Summary – Part 5.

    [8] Bill C-36. Anti-terrorism Act. Preamble.

    [9] Federal Court of Canada – Sections 466 and 467. [See Winnicki Contempt case, 2006 FC 873 , Para 9 http://decisions.fct-cf.gc.ca/en/200...006fc873.html]

    [10] Canadian Human Rights Commission publication. “Hate messages and Section 13 of the Canadian Human Rights Act - Legal Milestones” Under Section: “Case Law”

    [11] Winnicki, 2006 FC 873 , http://decisions.fct-cf.gc.ca/en/200...2006fc873.html

    [12] Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892

    [13] Judges of the Court. The Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada. http://www.scc-csc.gc.ca/court-cour/.../index-eng.asp

    http://www.freedomsite.org/legal/Eve...and_active.pdf

    See number 2 and the third one of it. Aryan Nations Canada.

    http://www.freedomsite.org/legal/cha...section13.html

    -see this otherwise the post will be WAY too damned long.

    Section 13 Repeal - What does it mean for Victims of Section 13?

    http://blog.freedomsite.org/2013/07/...-mean-for.html http://canadianhumanrightscommission...-mean-for.html

    Last week, the Senate of Canada passed Bill C-304, which repealed Section 13 and 54 of the Canadian Human Rights Act. Section 13 was Canada’s shameful censorship legislation, which made it an offence to "likely" "expose" privileged groups to "hatred and/or contempt." There are NO defences under Section 13! Even truth and intent are considered irrelevant to a finding of discrimination. The law was enacted in 1977 and in the intervening years, not a single person who has been hauled up on Section 13 charges has ever been acquitted - a 100% conviction rate.

    Section 13 has been used and abused since its inception. Bill C-304 has a one year implementation period written into it, so in effect, Section 13 will technically be gone in June, 2014.

    It is unlikely that the Canadian Human Rights Commission will accept and approve any new Section 13 complaints at this point, but who knows, it’s really hard to know what fanatics will do. The CHRC’s main stumbling block is the Canadian Human Rights Tribunal which ruled in the Lemire case, that Section 13 was unconstitutional, and has since stopped all Section 13 cases “Sine Die”. It’s pretty clear the Tribunal does not want to be a willing participant in the Human Rights Commission’s fanatical restriction of freedom of speech, or have any part in the CHRC’s spying and harassing of Canadians. As odd as this may sound, in the judicial system, it was actually the Canadian Human Rights Tribunal which sounded the alarm over Section 13 and the CHRC’s apparatchiks’ handling of cases, and their steadfast refusal to mediate any complaints (which flies in the face of any remedial piece of legislation).

    Section 13 was never meant to punish and persecute people, but the fanatics at the CHRC just couldn’t resist grinding poor and defenseless people into the ground with protracted and expensive litigation. So what happens now? At it currently stands, there will most likely never be another new Section 13 case in Canada, but for those currently in the system; it’s a totally different story. Bloggers can now rest easy; that the “Nazi fetishists” of the CHRC will not be logging into their websites,dressing up as Nazis and spying on them. Message Board owners can breathe a little bit freer now and not have to worry about busy body “hate finder G]general’s” looking to cash in on the latest “witch”. The chill that Section 13 placed over all internet communications is now gone. But for those of us who are caught up in the Section 13 ‘torture rack’, it might still be a while until we can throw off the yoke of censorship.

    The process is still the punishment, and the CHRC is going to take out their anger and revenge on us. As of today, all other Section 13 cases have been stopped pending a decision in my case. But with being the last standing Section 13 victim, the CHRC is going to open up both barrels on me! Canadian law is quite a confusing thing. There is a big difference between a repeal of a law, and the court finding a law “unconstitutional”. Of course my entire 10 year legal ordeal against the CHRC has been for the latter. To find Section 13 of the Canadian Human Rights Act an unconstitutional abridgement of the Charter of Rights, and of my freedom of expression.

    I spent some 6+ years fighting for my freedom before the CHRC and the Human Rights Tribunal. On September 2, 2009, the Tribunal acquitted me of the hundreds of “hate speech” charges leveled against me, and also found that Section 13 was unconstitutional. This ruling wasappealed by the CHRC to the Federal Court, which partly sided with the CHRC. The court ruled with me, that the fine provisions were unconstitutional (Section 54), but that Section 13 was just fine.

    That ruling is currently under appeal to the Federal Court of Appeals, with the Canadian Civil Liberties Association and others supporting my position. Just to give a better explanation between a repeal of a law, and the finding that a law is unconstitutional. (Keep in mind, I am not a lawyer) My impression is that the Parliament can repeal any law. That does not mean that the law was an unjustifiable infringement on any Canadians. But rather, when a law is found to be unconstitutional, it is the court saying that this law was wrong from the start, and is an unjustifiable infringement. The main difference is, when a law is repealed, no future cases can be brought.

    But if a law is found unconstitutional, then no cases should have EVER been brought. It may open up an option for individuals to sue the government for wrong doing, as well it demonstrates that no person should have even been convicted under the law. In effect, the law is flawed, and the court is correcting this flaw by striking down the law.

    Those are big differences, and especially important for those who are currently before the CHRC’s Section 13 Thought Inquisition. When a law is repealed, it applies going forward. But Canadian law is so screwy that anyone who was previously charged, they have to fight under the previously enforced rules. So basically, the law was “constitutional and in force” when the complaint was filed against me in 2003, so that’s the version of the law I am fighting. Move over ‘Alice in Wonderland’ there is a whole new world where the rabbit hole never ends.

    So in other words, I am now fighting at the Federal Court of Appeals, on the constitutionality of Section 13, which has now been repealed. WTF! How much crazier can it get? But it’s no laughing matter. I am fighting against a lifetime speech ban, which if I ever violated, could result in me going to jail for up to 5 years. (Several others in the past have been sentenced to up to 1 year in jail for violating a lifetime speech ban, so this is no joke) The heart of my appeal to the Federal Court of Appeals is that Section 13 is unconstitutional on dozens of grounds.

    That it is an unjustified limitation to the Charter of Rights and Freedoms, and not saved by Section 1 of the Charter. That’s really the crux of the case – Section 1 of the Charter. And as part of a review of my Section 1 arguments, the Court has to look at the will and wishes of the Parliament of Canada (pressing and substantial need).

    And this is where the repeal of Section 13 is going to immensely help me. How can anyone say that Section 13 is a minimal impairment to freedom and “pressing and substantial” in Canada, when the Parliament of Canada has spoken so clearly and repealed Section 13. My case is the last hurrah for the CHRC censors. There won’t be any new cases, so if they want to leave with a bang (and fanatics always seem to!) they are going to pull out all stops to beat me at the Federal Court of Appeals.

    In their eyes, if Section 13 has not have been found unconstitutional they can blame those evil “Conservatives” for repealing the law (once again refusing to accept any responsibility for the issues surrounding Section 13) The CHRC has already spent hundreds of thousands of tax-payers money to fight against me over the past 10 years.

    I would not be surprised in the number was actually in the millions. The CHRC are using a high priced lawyer (actually lawyers) from one of downtown Toronto’s expensive law firms. In order to try to manipulate public opinion, the CHRC spent hundreds of thousands with the astronomical priced Hill and Knowlton public relations firm, to do damage control on the Section 13 file. Gee, that was money well spent! After all, it seems like the censors just see the gullible tax-paying sheeple as an endless pit of CA$H, which they can use to harass and silence those “ignorant” Canadians who just don’t get with their “programme”. (Pogrom?) “Why Marc Lemire Must Challenge Constitutionality of a Law That May Be Repealed” Please have a look at my video on “Why Marc Lemire Must Challenge Constitutionality of a Law That May Be Repealed”

    YouTube Channel: http://youtu.be/PVNaZzj6wD4

    1. If Marc Lemire simply accepts the Federal Court ruling of Justice Richard Mosley then Lemire faces a lifetime Free Speech Ban for the “crime” of posting a document that contains the very same information and statistics the Canadian Blood Services used to ban homosexual men from giving blood.

    2. Even if Section 13 is repealed by the Senate it makes no difference to Marc Lemire’s case, nor to the cases of dozens of other Canadians already charged and convicted under this oppressive law. As absurd as it sounds, Marc Lemire could face a lifetime ban on his Right to Freedom of Speech under a law that no longer exists.Should he refuse to abide by the lifetime Free Speech ban he could go to prison.

    The maximum penalty for contempt of a Tribunal decision is 5 years in prison. The maximum penalty for a conviction of criminal “hate speech” under
    Section 319 of the Criminal Code: Two years.

    In the entire history of the Canadian Human Rights Commission not a single person has ever been sent to prison for violating an Canadian Human Rights Tribunal ruling.

    Except for those convicted of “thought crimes” under Section 13
    If Marc Lemire wants to retain his Right to Freedom of Speech and let me assure you, he does, then he has no choice but to challenge both the Constitutionality of Section 13 as well as appeal Justice Mosley’s horribly flawed and biased Federal Court decision.

    3. It is critical for Freedom of Speech that Section 13 be denounced as an affront to our Charter Right to Freedom of Speech and that the Federal Court of Appeals strikes it down as unconstitutional. Why? It will mean the dozens of cases prosecuted under this law over the past 33 years were unconstitutional prosecutions. More importantly, it will mean the penalties imposed by those unconstitutional convictions are also unconstitutional.

    4. If Section 13 is declared unconstitutional, as any unbiased judge must clearly see, then those people suffering under lifetime Freedom of Speech bans could appeal to the court to have those bans removed. If the law is simply repealed (removed from the books) then there is no avenue in Canadian law for those individuals to regain their Right to Freedom of Speech.
    5. There are multiple cases currently “on hold” because of Marc Lemire’s case, his Constitutional Challenge of Section 13 and his Federal Court Appeal of Justice Mosley’s decision.

    These cases are at both the Tribunal and Federal Court level.
    All of the cases currently “on hold” will move forward the second there is a final decision in Lemire’s case.

    6. The Canadian Human Rights Tribunal, the body that said itself that Section 13 was unconstitutional, stopped all Section 13 cases pending the outcome of Marc Lemire’s case.

    “… I have also concluded that Section 13(1) in conjunction with Sections 54(1) and (1.1) are inconsistent with Section 2(b) of the Charter [of Rights and Freedoms], 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 Section 1 of the Charter.”
    — Athanasios D. Hadjis’ Decision in Warman v. Lemire
    7. Repeal of the law does not address all corruption and the inappropriate administration of Section 13. We need a court to examine the spying, lying and conniving of the CHRC and rule that they were out of control in both Marc Lemire’s case and in many other cases.
    The stated aims of the Canadian Human Rights Act are remedial, not punitive. The object of the Act is to “correct discriminatory behaviour” not punish.
    Is it “remedial” to refuse any and all attempts at mediation? Is it “remedial” to refuse any and all attempts at mediation?
    Is it “remedial” to refuse to communicate with the subject of a Human Rights Act complaint?

    Is it “remedial” to continue prosecuting a man 8 years after all “offending” documents were removed from the Internet?
    No, it is not.

    If you despise government bodies telling you what you can and cannot say on the Internet.

    If you despise law written for telephone answering machines being applied to all of your internet communications on any internet platform…
    If you believe Section 13 of the Canadian Human Rights Act violates your Constitutional Right to Freedom of Speech…
    Then please contribute generously to Marc Lemire’s Free Speech Legal Defense Fund so he can continue his appeal and Constitutional Challenge of Section 13 of the Canadian Human Rights Act.

    Now that Section 13 has been repealed by Parliament, the CHRC is going to go after me with both guns blazing. Can I count on you to support the cause of freedom? My courageous lawyer Barbara Kulaszka and I have demonstrated what two dedicated freedom fighters can accomplish against overwhelming odds. We have single-handedly and doggedly fought the system and exposed the corrupt underbelly of the "Human Rights" Commission's racket. I cannot carry on this important fight alone. Your donations literally equal the survival of this case. Please support Marc Lemire's Constitutional Challenge of Section 13 of the Canadian Human Rights Act. Marc Lemire is the ONLY person to beat the CHRC in it's 33 year history!


    http://www.stopsection13.com/support.html (Interac Money Transfers, Donate Online, and online store)

    NOTE NEW ADDRESS

    152 Carlton Street
    Post Office Box 92545
    Toronto, Ontario M5A 2K1
    CANADA

    Email: marc@lemire.com
    Website: http://www.freedomsite.org | http://www.StopSection13.com Twitter: @marc_lemire

    HERE'S TO MARC! I CAN'T THANK YOU ENOUGH!

    HERE'S TO FREEDOM AND VICTORY!!

    Douglas
    Attached Images
    Last edited by Pearson; 07-14-2013 at 01:54 AM.
    CANADIAN ORGANIZATIONS
    Canadian Association for Free Expression - Paul Fromm
    https://www.cafe.nfshost.com
    https://www.canadianfreespeech.com/
    National Socialist Party of Canada - Terry Tremaine
    https://www.nspcanada.nfshost.com/
    Alliance of the North - François Bélanger
    https://www.alliancedunord.ca/
    https://www.saveyourdistrict.ca/
    Freedomsite - Marc Lemire
    https://www.freedomsite.org/
    Radical Press - Arthur Topham
    https://www.radicalpress.com/
    HAIL VICTORY!!
    Douglas

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    Pearson is offline My Real Name is Aaron Pearlston Member Pearson is on a distinguished road
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    Default Commemoration of British Torture of German Prisoners of War AFTER WW II at Bad Neundorf & Call for Formal Apology for this War Crime 081213

    August 3 - Commemoration of British Torture of German Prisoners of War AFTER WW II at Bad Neundorf & Call for Formal Apology for this War Crime




    https://www.youtube.com/watch?v=fMmqWEQ52hc&feature=player_detailpage



    Heritage and Destiny Channel


    https://www.youtube.com/user/heritageanddestiny?



    Bad Nenndorf Trauermarsch -- 03.08.2013 -- Excerpts and speech by Lady Michèle Renouf

    Excerpts in English and German from the Trauermarsch (Memorial March) held at Bad Nenndorf, near Hanover, on 3rd August 2013. This was the site of the British war crimes against German POW’s after the Second World War.


    Lady Michele Renouf

    Telling Films https://www.tellingfilms.co.uk/
    Jailing Opinions https://www.jailingopinions.com/
    Birobidjan https://www.jewishrepublic.com/
    European Action https://www.europaishe-aktion.org/index_en.html


    Canadian Association for Free Expression



    https://www.cafe.nfshost.com/ https://www.canadianfreespeech.com/



    Post Office Box 332
    Rexdale, Ontario M9W 5L3
    CANADA

    Last edited by Pearson; 08-15-2013 at 11:42 PM.
    CANADIAN ORGANIZATIONS
    Canadian Association for Free Expression - Paul Fromm
    https://www.cafe.nfshost.com
    https://www.canadianfreespeech.com/
    National Socialist Party of Canada - Terry Tremaine
    https://www.nspcanada.nfshost.com/
    Alliance of the North - François Bélanger
    https://www.alliancedunord.ca/
    https://www.saveyourdistrict.ca/
    Freedomsite - Marc Lemire
    https://www.freedomsite.org/
    Radical Press - Arthur Topham
    https://www.radicalpress.com/
    HAIL VICTORY!!
    Douglas

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    Pearson is offline My Real Name is Aaron Pearlston Member Pearson is on a distinguished road
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    Default British "Asylum Seekers" Song - A Satire 081513

    British "Asylum Seekers" Song - A Satire



    APOSTATE & INFIDELS -- BRAND NEW LEATHER JACKET



    https://www.youtube.com/watch?featur...&v=qpNbBUNrNIg



    Eirinn2 YouTube Channel

    https://www.youtube.com/user/eirinn2?feature=watch



    Apostates & Infidels Brand new Leather Jacket



    Nick van Riel: That's why I ask a favor of all people who want to bring the message about Islam out and are managing a YouTube account, to download this.

    Canadian Association for Free Expression

    https://www.cafe.nfshost.com/ https://www.canadianfreespeech.com/



    http://whitenationalist.org/forum/sh...=9153#post9153
    CANADIAN ORGANIZATIONS
    Canadian Association for Free Expression - Paul Fromm
    https://www.cafe.nfshost.com
    https://www.canadianfreespeech.com/
    National Socialist Party of Canada - Terry Tremaine
    https://www.nspcanada.nfshost.com/
    Alliance of the North - François Bélanger
    https://www.alliancedunord.ca/
    https://www.saveyourdistrict.ca/
    Freedomsite - Marc Lemire
    https://www.freedomsite.org/
    Radical Press - Arthur Topham
    https://www.radicalpress.com/
    HAIL VICTORY!!
    Douglas

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    Pearson is offline My Real Name is Aaron Pearlston Member Pearson is on a distinguished road
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    Default Appeal Factum of Political Prisoner Terry Tremaine -- Sentenced to 6 Months for Contempt of Court 081713

    APPEAL FACTUM OF POLITICAL PRISONER TERRY TREMAINE - SENTENCED TO 6 MONTHS FOR CONTEMPT OF COURT



    Last fall Terry Tremaine was hammered with a six month prison term for "contempt of court", the third such complaint by his tormenter Richard Warman, who had, in addition, filed a Sec. 13 (Internet censorship) Canadian Human Rights complaint, a complaint to his employer which cost Mr. Tremaine his teaching position at the University of Saskatchewan, and a Sec. 319 ("hate law") complaint under the Criminal Code, which was thrown out by a Regina judge last fall for undue delay but the bail conditions it imposed had kept Mr. Tremaine silenced politically for nearly four years.

    Originally, Federal Court Judge Found Mr. Tremaine not guilty as the February, 2008 Canadian Human Rights Tribunal "cease and desist order" had not been served on Mr. Tremaine until August, 2009. Apparently, his postings from February, 2008 until later that year were not sufficiently toned down in terms of privileged minorities for Mr. Warman's sensibilities. Also, he had not removed a long list of offending passages -- although the poorly written order didn't instruct him to do so. In 2011, the Federal Court of Appeal on a 2-1 vote instated a finding of guilt and overturned the acquittal. It was back to Judge Harrington for sentencing in Vancouver in October, 2012. Earlier last year, the Supreme Court denied leave to appeal.

    Remember, Sec. 13 had already been repealed by the House of Commons in June, 2012. So, Mr. Warman was being punished for contempt of a vague order imposed under a law that was so foul it had been repealed. The Senate repealed the law in June, 2013 and repeal was granted immediate Royal Assent. This makes the prospect of Mr. Tremaine heading for prison for "contempt of court" for failing to obey a vague order under a law that has been repealed even more ludicrous.




    Don't let them tell you Canada is a free country. Next time some earnest do-gooder reminds you of the fate of dissidents in Red China or Burma or Cuba, be sympathetic but remind him or her that Canada has no reason to be self-righteous.

    Our courts are quite happy to jail dissidents and gag opinion on the Internet, especially where the dissident has criticized powerful privileged groups.

    In China, if you criticize the powerful Communist Party, they send your impertinent butt to jail. In Canada, if you criticize privileged minorities, as has scholar and dissident Terry Tremaine, they fling your dissident self in prison.

    To all the naive folks listening to those TV ads about the 30th Anniversary of the Charter: Do you still think your rights are protected? Not if you cross politically powerful and privileged minorities.


    Paul Fromm,
    Director
    CANADIAN ASSOCIATION FOR FREE EXPRESSION
    https://www.cafe.nfshost.com/
    https://www.canadianfreespeech.com/


    OVERVIEW 1
    i. Standard of Review 2
    PART I – STATEMENT OF FACTS 4
    PART II – ISSUES 9
    PART III - ARGUMENT 10


    A. Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint? 10

    B. Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant? 13

    C. Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing? 14

    i. Parity Principle 16

    D. Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence? 18

    PART IV – CONCLUSION AND NATURE OF RELIEF REQUESTED 26
    PART V – LIST OF AUTHORITIES 28


    Court File No.: A-493-12


    FEDERAL COURT OF APPEAL

    BETWEEN:


    TERRY TREMAINE


    APPELLANT


    and



    CANADIAN HUMAN RIGHTS
    COMMISSION
    AND
    RICHARD WARMAN

    RESPONDENTS



    MEMORANDUM OF FACT AND LAW OF THE APPELLANT


    OVERVIEW



    1. The evidence disclosed throughout this litigation establishes that the Appellant’s political message is, doubtless, deeply offensive to the overwhelming majority of Canadian citizens. This Honorable Court has convicted the Appellant of civil contempt of the Canadian Human Rights Tribunal, which had previously ordered the Appellant to “cease and desist” from communications of the type that resulted in the finding that he exposed protected groups of his fellow citizens to hatred or contempt. This is an undeniable fact.

    2. It is readily acknowledged that a conviction for civil contempt is a serious matter. Nevertheless, the fundamental principles of sentencing mandated by Parliament - and consistently applied by Canadian courts sentencing citizens for contempt - must be properly applied to every citizen found guilty of an offence. The specific facts of a rare case such as this also call for the consideration of broader legal principles. It is the role of the Appellate Courts to endeavor to ensure this is accomplished.

    3. At the heart of this appeal is the Appellant’s assertion that these principles were not applied appropriately. It is readily admitted that this case involves communications that are hateful, and that was clearly a concern to the learned sentencing Judge. Mr. Justice Harrington was entitled to consider this as an aggravating factor. However, the learned sentencing Judge was still required to balance this with other factors and correctly apply the appropriate principles. This case called for the Court to sentence a citizen for a civil contempt as a first offender. The learned sentencing Judge had a legal duty to give adequate consideration to the fundamental principle of restraint and the important mitigating factors that arose from the Appellant’s personal circumstances, as well as the surrounding social and legal context within which the offence occurred. The Appellant will respectfully submit that adequate consideration of these principles and factors was not given in the case at bar, therefore causing the learned sentencing Judge to commit a reversible error. These errors in law and principle led to a further error: that the sentence is manifestly excessive, and more appropriate for a criminal contempt.

    4. Though the Appellant will advance two further arguments, it is primarily because of these three errors that the learned sentencing Judge imposed a sentence which is, in all the circumstances of this case, demonstrably unfit.

    i. Standard of Review

    5. Before discussing the law concerning the governing standard of review to be applied in this case, it should first be acknowledged that the grounds of appeal argued in this Memorandum will differ from the grounds asserted by previous counsel in the Notice of Appeal. Nevertheless, all of the Appellant’s submissions concern issues that were before the learned sentencing Judge and are properly before this Court. The Appellant respectfully submits that this Court has jurisdiction to hear this appeal as is framed in this Memorandum.

    6. In Canada (Attorney General) v. de l’Isle1 this Court held that, with respect to a sentence for contempt, an appellate court may intervene only if the sentence imposed is “excessive or inappropriate having regard to the circumstance, or if that judge erred in law in passing sentence.”2
    Though this appeal concerns a sentence for civil contempt, the Appellant’s liberty interests are directly engaged and, as a result, contempt is to be treated as quasi-criminal in nature. For this reason, it is submitted that the deferential approach adopted in de l’Isle can be expanded upon by applying the principles outlined by appellate level sentencing cases in Canadian criminal law.

    7. The standard of review to be employed by Appellate Courts when adjudicating sentence appeals is outlined by the Supreme Court of Canada in R. v. Shropshire3. The standard was considered further in R. v. M. (C.A.)4. At paragraph 90, the court stated:
    Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

    8. While recognizing the important role appellate courts play in minimizing disparity of sentencing for similar offenders and similar offences, the Supreme Court recognized that sentencing is an individualized process. It accepted that Parliament has given specialized discretion to individual sentencing judges. As a result, the court stated at paragraph 92:
    I believe that a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.

    9. The Saskatchewan Court of Appeal has recognized and applied this standard of review on numerous occasions. In R. v. Campeau5, the Court re-affirmed the standard. Further, it discussed what constitutes “unreasonableness” and “demonstrable unfitness” at paragraph 5:
    This Court considers what constitutes "unreasonable" in R. v. Berntson and "demonstrably unfit" in R. v. Pankewich. In Pankewich, Jackson J.A., for the Court, described demonstrable unfitness as follows:

    [31] "Demonstrably unfit" has been equated with unreasonableness (see Shropshire at para. 46); "sentences which are clearly or manifestly excessive" (see Shropshire at para. 47 quoting the Nova Scotia Court of Appeal in R. v. Pepin (1990), 98 N.S.R. (2d) 238 (N.S.C.A.) at 251); "falling outside the 'acceptable range"' (see Shropshire at para. 50); sentences where there is a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes" (see M. (C.A.) at para. 92) ... McDonnell [[1997] 1 S.C.R. 948] also states that a wide deviation from the accepted "starting-point" of sentencing for an offence will not, in and of itself, render a sentence demonstrably unfit, but rather is a factor in determining demonstrable unfitness…

    10. In R. v. Rezale6, the Ontario Court of Appeal defined an error in principle as follows:
    Error in principle is a familiar basis for reviewing the exercise of judicial discretion. It connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law.


    PART I – STATEMENT OF FACTS

    11. The Canadian Human Rights Tribunal (“CHRT”) held that the Appellant, Mr. Terry Tremaine, was engaging in discriminatory practice contrary to s. 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”) on February 2, 2007. The Tribunal held that Mr. Tremaine’s messages violated s. 13(1) of the CHRA and issued a cease and desist order and a fine in the amount on $4,000. Mr. Tremaine was not represented by counsel at the CHRT hearing.7

    12. Still unrepresented, he applied for judicial review of the Tribunal’s decision. On September 18, 2008, the Federal Court found that the Tribunal’s decision was not unreasonable. The Court held that neither the cease and desist order, nor the $4,000 fine were unreasonable. Notwithstanding that the Appellant was not represented by counsel, the Federal Court declined to consider his application with respect to the constitutionality of s. 13(1) of the CHRA because he did not provide the requisite notice as required by the Federal Courts Act, RSC 1985, c. F-7. The Court further declined a request to have the judicial review adjourned pending the outcome of the constitutional application made in CHRC and Warman v. Lemire, 2012 FC 1162 (F.C.T.D.).

    13. The facts underlying both the Tribunal decision and the judicial review concern Mr. Tremaine’s postings on 2 internet sites. First, Mr. Tremaine is the Webmaster of the National Socialist Party of Canada website. Second, he is a member of an American website known as “Stormfront”. Stormfront provides forums where people can exchange ideas and messages in the form of postings. The website is clearly geared towards white supremacy and neo-Nazi ideology, and is basically a cyber-meeting place for like-minded individuals. Though you need to be a member to post on the website, any member of the public can download the content. The slogan “White Power World Wide” appears on the Home Page of Stormfront, so the nature of the website is very clear to all visitors. The Appellant posted on the website under the pseudonym “MathDoktor99”. The majority of the postings attributed to the Appellant are repugnant and deeply offensive to the vast majority of Canadians.8

    14. The Appellant did not appeal the decision of the Federal Court.

    15. In 2009, the Canadian Human Rights Commission (the “Commission”) filed a motion in Federal Court for an order that the Appellant be found in contempt of the order of the Tribunal. The motion was heard by Justice Harrington of the Trial Division of the Federal Court.

    16. Justice Harrington held that though the Commission had established beyond a reasonable doubt that the Appellant had knowledge of the order of the Tribunal, it could not establish that he had knowledge that the order had been registered with the Federal Court until March, 2009. He dismissed the charges for contempt, finding that the Commission had to register the Tribunal’s order with the Federal Court and serve the Appellant before it could be enforced. The learned Trial Justice also dismissed the Appellant’s argument that he had not “communicated” within the meaning of s. 13(1) of the CHRA.

    17. The Commission successfully appealed this decision to this Court. The majority of the Federal Court of Appeal found that there was no legal principle that restricted the use of contempt powers to orders issued by superior courts. It concluded that the CHRT’s decisions were no less enforceable by superior courts than the decisions of the superior courts themselves. This Honourable Court declined to order a new hearing and instead substituted a conviction for civil contempt. It directed that the matter be returned to the Federal Court for sentencing.

    18. Counsel for the Appellant unsuccessfully applied for leave to appeal this Honourable Court’s decision to the Supreme Court of Canada. The matter was thus remitted back to the Federal Court Trial Division for sentencing. It proceeded on the basis that the Appellant had been convicted of civil contempt.9

    19. As it was a civil contempt, the Commission submitted that the Appellant ought to be detained until his contempt was purged. The Commission further submitted that as the matter was a civil contempt, the Appellant had the right to purge the contempt and therefore avoid imprisonment. The Commission submitted that if the Appellant did not purge his contempt, that he ought to be imprisoned until he do so.10

    20. The Commission also sought that the Appellant remove the offending material from the National Socialist Party of Canada website and request that Stormfront remove his previous posts that were the subject of the contempt.

    21. The complainant, Mr. Richard Warman, sought a period of unconditional imprisonment of 3 to 6 months.11The complainant further submitted that rather than ordering the Appellant to remove the infringing posts from the National Socialist website, the court ought to order the site shut down in its entirety.12

    22. The Appellant’s counsel unsuccessfully tried to argue that the Appellant did not have the requisite mens rea. The Appellant further argued that for a period of time wherein the Appellant was found to be in contempt, s. 13(1) of the CHRA was found to be not constitutionally valid. The Appellant argued that he was under an honest mistake of law and did not believe that the Tribunal’s decision was enforceable. He further argued that the order of the Tribunal was ambiguous in that it prohibited “telephonic” communication rather than internet communication. The Appellant submitted that there should be an order for compliance, and in default of compliance, 60 to 80 days imprisonment. In effect, he asked for a sentence of imprisonment to be suspended to allow him time to purge his civil contempt.13

    23. The Trial Division of the Federal Court sentenced the Appellant to 30 days imprisonment. It further ordered him to cease communicating or causing to communicate material of the type or substantially similar type to that found by the Tribunal and Federal Court to be likely to expose a person or persons to hatred or contempt on the basis of a prohibited ground of discrimination in violation of s. 13(1) of the CHRA. It held that the Appellant would be imprisoned for a further 6 months or until he complies with the Court’s order, and directed the Appellant to approach Stormfront.org with a request to remove postings from their website and to remove specified postings from the National Socialist Party of Canada website.

    https://www.nspscanada.nfshost.com/


    24. In the decision under appeal, the learned Trial Justice began his decision by declaring that “the time [had] come at last to penalize Mr. Tremaine for acting in contempt of an order of the Canadian Human Rights Tribunal.” The Court further noted the offensive nature of Mr. Tremaine’s messages. It dismissed the Notice of Constitutional Question filed by the Appellant at the Sentencing Hearing, echoing its oral ruling at the sentencing hearing, in which it dismissed the motion without hearing evidence. The court held that it was “most disturbing” that the Appellant had testified at the Sentencing Hearing that he had sold control of the National Socialist Party of Canada website to an American through Mr. Bernard Klatt. The learned Trial Judge added that it was “obvious that Mr. Tremaine was attempting to put his website out of this Court’s reach”. The learned Justice also saw fit to admonish the Appellant’s previous counsel in relation to submissions he made with respect to the Complainant.

    25. It should be noted that the materials that were the subject matter of the previous hearings were also the subject matters of criminal proceedings in the Province of Saskatchewan. The Appellant was charged with breaching s. 319 of the Criminal Code. The Regina Police Service executed a search warrant and invaded his home and seized his computer. As a result of an alleged breach of bail conditions, the Appellant served 22 days at the Regina Provincial Correctional Centre on remand. The substantive s. 319 charge was eventually judicially stayed by the Saskatchewan Court of Queen’s Bench due to unreasonable delay. The breach allegation was also stayed.14

    26. On December 3, 2012, previous counsel for the Appellant sent a letter to the Registrar of the Federal Court of Canada outlining the steps the Appellant had taken to comply with the order.15

    27. The Appellant, Terry Tremaine, is a 64 year old Canadian citizen residing in Regina, Saskatchewan. He has a Master of Science in Mathematics, and has completed some doctoral studies at Queen’s University. As a result of this litigation, his 20 year academic career has been completely destroyed. Though there was no suggestion his personal political views ever affected his teaching career, the University of Saskatchewan dismissed him when the Complainant contacted them about Mr. Tremaine and threatened to go to the media if the institution did not take disciplinary action. Subsequent to the loss of his profession, Mr. Tremaine suffered from depression that was so severe he required hospitalization. He has been unable to find lasting, meaningful employment since his termination and is now indigent, and a qualified applicant for representation by Legal Aid Saskatchewan.16


    PART II – ISSUES

    28. It is respectfully submitted that this appeal raises the following issues:

    A. Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint?
    B. Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant?
    C. Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing?

    i. Does the Sentence conform with the Parity Principle?

    D. Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence?

    E. While considering the hateful nature of the Appellant’s comments, did the learned sentencing Judge err by declining to also consider the broad social and legal factors that were relevant to the analysis of a just and proper sanction?


    PART III - ARGUMENT

    A. Did the learned sentencing Judge err in law and principle by failing to consider and apply the principle of restraint?

    29. Though the law concerning both civil and criminal contempt is rooted in the common law rather than statute, the potential implications for a loss of liberty arising from a finding of contempt has led the courts to consistently apply the criminal standard of proof beyond a reasonable doubt.17 The criminal nature of contempt proceedings, even in a civil context, has led the established jurisprudence to accept that the principles of sentencing outlined in the Criminal Code, R.S.C. 1985, c. C-46 (“Code”) are instructive and should be followed.

    30. In International Forest Products Ltd. v. Kern18, the British Columbia Court of Appeal reviewed the sentence for criminal contempt imposed on a protestor disobeying an injunction obtained by the plaintiff logging company. The court considered its function as a reviewing court on appeal, and held that “[s]entencing for criminal contempt must be guided by principle and no better guide exists than those Criminal Code provisions which largely codified the judge-made rules on sentencing”.19 It went on to assess whether the original sentence was demonstrably unfit.

    31. The Newfoundland Court of Appeal has also applied this reasoning. In Puddester v. Newfoundland (Attorney General)20 the court held that both the principles and the sentencing options outlined in the Criminal Code can be adopted and employed in contempt proceedings.21 In Ontario, the Superior Court of Justice has even considered sentencing an offender to a conditional sentence of imprisonment, relying on a procedural rule giving a trial judge broad discretion in contempt sentencing.22

    32. With respect to the principle of restraint, this Honorable Court has affirmed its applicability in sentencing for contempt in Federal Court. Relying in part on the seminal case of R. v. Gladue23, this court has held that a sentencing court must consider all other sanctions that may be appropriate before considering imprisonment, especially in cases involving citizens with no prior criminal record. In Canadian Human Rights Commission v. Winnicki,24 this court stated at para. 20 (emphasis added):

    The authorities are clear that a Court should take special care in imposing a sentence of imprisonment upon a first offender. The trial judge should have either a pre-sentence report or some very clear statement with respect to the accused's background and circumstances. This is particularly true of youthful offenders such as the appellant. Further it has been recognized that except for very serious offences and offences involving violence, the primary objective of individual deterrence can be best achieved by either a suspended sentence or probation or a very short term of imprisonment followed by a term of probation. (see R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688). In R. v. Priest, [1996] O.J. No. 3369, at paragraphs 20 and 23 the Ontario Court of Appeal stated:


    http://www.canlii.org/en/ca/scc/doc/...canlii679.html

    The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment. The trial judge had no material before him from which he could possibly have made this determination. His reasons are barren of any lawful justification for such a radical departure from this well-established principle especially in the case of a youthful first offender.

    Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

    Likewise, in R. v. Curran (1973), 57 Cr. App. R. 945 it was noted that,



    As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence; and what sentence is needed to teach this particular offender a lesson which he has not learnt from the lighter sentences which he has previously received.

    33. The common law principle of restraint required that if imprisonment must be imposed for an offence, the shortest amount of time possible in the circumstances should be given. Parliament codified and expanded this principle in ss. 718.2 (d) and (e) of the Code, which require sentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances. It is respectfully submitted that this reflects an intention that imprisonment be considered a punishment of last resort.

    34. As was the case in Winnicki25, the learned sentencing Judge did not consider the impact of the fact that the Appellant was a first offender in his reasons. Moreover, he did not direct his mind to the accepted principle that in arriving at a just sanction, serious consideration must be given to dispositions other than imprisonment. It is obvious that he did not consider suspending the prison sentence to allow the Appellant to purge his contempt to be sufficient. However, it is apparent from the reasons that he did not consider alternative dispositions, such as probation with a community service order, which would have been more appropriate in the circumstances. Even though the Rules don’t specifically provide for this type of disposition, it is submitted that the Federal Court has an inherent jurisdiction to control its own process. This jurisdiction includes a wide discretion in imposing sanctions for civil contempt. In Canadian Copyright Licensing Agency v. U-Compute,26 the Federal Court imposed probation with community service hours on an offender with two prior convictions for contempt of court.

    35. It is respectfully submitted that by not analyzing and applying the principle of restraint, the learned sentencing Judge erred in law.

    B. Did the learned sentencing Judge err by overemphasizing the principle of deterrence while paying insufficient attention to the individual circumstances of the Appellant?

    36. This court affirmed in Winnicki that it is an error for a sentencing Judge in contempt proceedings to neglect to consider the background of the citizen found in contempt.27 The rationale for the rule is that just sanctions require an assessment of both the circumstances of the offence and the offender. A balancing of these circumstances is essential because sentencing is an individualized process.


    37. The evidence at the sentencing hearing indicated that sometime after the complaint was filed with the Commission, the Complainant contacted the Appellant’s employer, the University of Saskatchewan. He advised the University that the complaint had been filed, and requested that they take disciplinary action against the Appellant. The Complainant advised that if the University did not take action, local and national media would be advised of the situation. Mr. Tremaine, whose views were now exposed, was fired. His twenty year academic career is in ruins, and he has been unable to maintain regular employment since. He is now on social assistance in Saskatchewan. After being fired by the University, he fell into a deep depression, and was admitted to the psychiatric ward at the Regina General Hospital.28

    38. Neither this evidence, nor the fact that Mr. Tremaine was a first offender, was mentioned in the decision under appeal. While it is recognized that the learned sentencing Judge considered several factors in this case to be aggravating, he had a legal duty to at least factor the mitigating circumstances into the final analysis. This Honourable Court gave a clear direction in Winnicki that he must do so.

    39. Every citizen, no matter how distasteful the court may view their conduct, is entitled to have a sentencing court consider the impact that the proceedings has had on his/her personal circumstances. Justice demands nothing less. It is submitted that the learned sentencing Judge made a very clear error in this respect.


    C. Did the learned sentencing Judge err in law by, in effect, sentencing the Appellant for criminal contempt, notwithstanding that this Court has convicted him of civil contempt, and the Commission proceeded on that basis at the Sentencing Hearing?

    40. At one time, the practical difference between civil and criminal contempt was difficult to discern. In UNA v. Alberta (Attorney-General),29 the Supreme Court of Canada considered this distinction.
    Speaking for the Court, McLachlin J. (as she then was) stated at para. 20-21:


    Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependant on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

    These same courts found it necessary to distinguish between civil and criminal contempt. A person who simply breaches a court order, for example by failing to abide by visiting hours stipulated in a child custody order, is viewed as having committed civil contempt. However, when the element of public defiance of the court's process in a way calculated to lessen societal respect for the courts is added to the breach, it becomes criminal. This distinction emerges from Poje v. British Columbia (Attorney General), [1953] 1 S.C.R. 516, 17 C.R. 176, 105 C.C.C. 311, [1953] 2 D.L.R. 785, at p. 527 [S.C.R.], per Kellock J.:

    The context in which these incidents occurred, the large numbers of men involved and the public nature of the defiance of the order of the court transfer the conduct here in question from the realm of a mere civil contempt, such as an ordinary breach of injunction with respect to private rights in a patent or trade-mark, for example, into the realm of a public depreciation of the authority of the court tending to bring the administration of justice into scorn.

    41. As outlined by the court, criminal contempt requires proof of a requisite mens rea, including full knowledge that the public defiance will depreciate the authority of the court.30 In civil contempt, mens rea is not a factor until the sentencing stage.31

    42. The Appellant was convicted of civil contempt. The Sentencing Hearing proceeded on this basis. Counsel for the Commission was clear on this point, and very fairly pointed out to the Court that in civil contempt, it is generally accepted that the offender ought to be given the opportunity to purge their contempt.32 It is submitted that this comment is consistent with much of the jurisprudence. After reviewing numerous cases involving both civil and criminal contempt, the B.C. Supreme Court in Telus Communications Inc. v. T. W. U.33 stated (emphasis added):

    In reviewing the decisions where criminal and civil contempt have been found, it is apparent that most contempt proceedings involving labor/management disputes or civil "protest" disobedience have proceeded as criminal contempt, there is a wide variation in the punishment thought to be appropriate for any particular "type" of contempt, there appears to be little difference between the punishment imposed for criminal contempt and the punishment imposed for civil contempt, but incarceration is usually reserved for situations where criminal contempt has been found.

    43. Though imprisonment is certainly possible in cases of civil contempt, it is submitted that it should not be commonly given, especially to a citizen without a prior record. It is submitted that the learned sentencing Judge erred by failing to consider the distinction between civil and criminal contempt. Effectively, the court imposed a sentence for criminal contempt notwithstanding that the Appellant had only been convicted of civil contempt.

    44. This error, either alone or in combination with the errors of failing to consider both the principle of restraint and the personal circumstances of the Appellant, led to the imposition of a sentence that was demonstrably unfit. With respect, it is manifestly excessive and not appropriate for a first offender convicted of civil contempt.


    i. Parity Principle

    45. As this court is well aware, another important principle of sentencing is that the sentence imposed be consistent with sentences imposed on similar offenders in similar situations. For the purposes of assessing whether the sentence conforms to the parity principle, it is useful to consider sentences imposed in other contempt cases.

    46. In MacMillan Bloedel Ltd. v. Simpson34 the court considered sentences for criminal contempt, which included jail sentences imposed on several citizens, including first offenders. However the court pointed out that earlier in the litigation, several other individuals involved in the same protest were given fines, or prison sentences that were suspended to allow for an opportunity for the order to be followed.35 It was only when it was clear that previous lenient sentences were not effecting the Court’s purpose that the sanction of unsuspended imprisonment was employed.

    47. In Regina (City) v. Cunnigham,36 the plaintiff municipality obtained an injunction enjoining the defendant from continuing to operate a strip club in a manner than contravened the city Zoning Bylaw. Mr. Cuningham did not appeal the injunction. After being convicted of criminal contempt, Cunningham was sentenced to a $2000 fine and 6 months imprisonment, suspended if he obeyed the injunction. He did not purge his contempt and instead publicly declared that the club would stay open. He was eventually committed to prison. However, it is significant that even though Cunningham was convicted of criminal contempt, he was initially given a chance to purge the contempt before imprisonment was imposed.

    48. In Winnicki,37 this court reduced a 9 month sentence for contempt of the Federal Court to time served, which was 83 days. This case is factually similar to the case at bar, but it is not clear whether the finding was of civil or criminal contempt. Mr. Winnicki had violated an injunction issued by the Federal Court Trial Division.

    49. The B.C. Supreme Court sentenced several individuals for civil contempt in Telus Communications v. T.W.U.38 The sentences included orders compelling donations to charity, orders compelling community service, along with various fines and costs awards.


    50. Other cases include:
    i. Canadian Copyright Licensing Agency v. U-Compute39 – Civil Contempt, offender had two prior convictions. He was sentenced to imprisonment, but it was suspended and included an order for community service work.

    ii. Salt River First Nation 195 v. Marie40 – Civil Contempt, fines with default imprisonment for one defendant.

    iii. Telewizja Polsat SA v. Radiopol Inc.41 – Civil Contempt, offender shows no remorse. 6 months imprisonment, suspended to allow for compliance.

    iv. Canada (Minister of National Revenue) v. Money Stop Ltd.42 – Offender given 30 days to comply after contempt hearing and did not do so. Eventual sentence included imprisonment, but it was suspended to allow for compliance.

    D. Did the learned sentencing Judge err in law by declining to consider the mitigating factor that the Appellant had been in prison for 22 days as a result of criminal charges involving the same complainant and substantially the same evidence?

    51. As this court is aware, it is a common practice for criminal courts to factor pre-trial custody in to the analysis of an appropriate sentence. It is submitted that this practice is rooted, fundamentally, in fairness and equity. The most common legal regime employed to give effect to this principle of fairness is s. 719 of the Criminal Code. However, it is not the only means by which the courts achieve similar ends.

    52. There is nothing in the language of s. 719 of the Code to suggest that a citizen should be given credit for time spent on strict bail conditions while he/she awaits a disposition. Nevertheless, strict release conditions are a deprivation of liberty. The appellate courts have responded by requiring sentencing courts to factor these conditions into the analysis as mitigating factors. In R. v. Downes43, the Ontario Court of Appeal reviewed Canadian jurisprudence and concluded that stringent bail conditions must be taken into account by sentencing Judges as a mitigating circumstance.44 The court did not mandate that a specific quantum of credit be given, as it recognized that different circumstances will require judges to vary its final impact on sentence. While there is no strict formula, there is no doubt that pre-trial deprivations of liberty must at least be considered.

    Though in a later case the court declined to hold that this principle could reduce a statutorily mandated minimum sentence, the basic principle remains law in Ontario.45

    53. Rather than through a specific statutory provision, the source of this rule is the courts’ desire to fulfill its role in delivering a just sanction on a citizen convicted of an offence. In considering this principle and its underlying values, it is submitted that it should be applied in the case at bar. Though the criminal proceedings were eventually stayed, Mr. Tremaine was detained at the Regina Provincial Correctional Centre for 22 days as a result of what appears to be the same evidence and witnesses that were before the CHRT. He has thus incurred a serious deprivation of liberty as a result of what is substantially the same conduct. The Appellant admits that there is no specific statutory compulsion to consider his previous imprisonment. However it is respectfully submitted that the court’s duty to consider all relevant circumstances in arriving at a just sanction mandates that it should have at least factored into the learned sentencing Judge’s analysis. The Appellant respectfully submits that by declining to even consider his pre-trial detention, the learned sentencing Judge erred in principle.


    E. While considering the hateful nature of the Appellant’s comments, did the learned sentencing Judge err by declining to also consider the broad social and legal factors that were relevant to the analysis of a just and proper sanction?

    54. At paragraph 26 of the Judgment under appeal, the learned sentencing Judge asserts that “this case is about law and order”.46 On its face, it may seem to be a correct proposition. The law of contempt is concerned with the rule of law. However, it is beyond doubt that the facts and the underlying legal and social context are always part of the sentencing process. It is precisely because every sentence occurs within a larger social context that principles such as general deterrence and denunciation are considered and weighed against the individual needs of the citizens – both victim and offender - before the court. Broad considerations are a necessary part of the task of arriving at a fit and just sanction.

    55. The learned sentencing Judge understood this general proposition. This can be deduced from the obvious concern he had about the conduct of both the Appellant and his previous counsel. For example, he inferred from the evidence of the Appellant’s sale of the National Socialist Party of Canada website that it was “obvious that [he] was attempting to put his website out of the court’s reach” (para. 20). He referred to Mr. Tremaine as “the villain” (para. 24). He remarked that the Appellant’s previous counsel “used the courtroom as a bully pulpit to attack Mr. Warman” (para. 22). He made special mention that, in this case, the court was no longer concerned about “free speech”.47 It should also be noted that in his submissions, the complainant urged the court that it “weighs upon the judgment of this court that the material is vicious hate propaganda”.48

    56. The Appellant does not quarrel with the learned sentencing Judge’s right and duty to consider other relevant factors beyond the simple fact of the contempt in imposing sentence. Indeed, the central message of the argument in this Memorandum is that he ought to have considered more factors and principles than he did. It would be less than honest to suggest that this case is merely about the fact of the civil contempt, as the very facts upon which the conviction is founded concern expression, albeit expression that has been determined to be hateful. A sentencing court must balance many factors in relatively rare situations like the one presented in the case before this Honourable Court.

    57. In R. v. Nasogaluak49, the Supreme Court of Canada considered the extent to which the Charter of Rights and Freedoms affects the sentencing process. Though the case concerned the impact of a specific egregious breach of Nasogaluak’s rights on the sentencing process where a mandatory minimum was concerned, the court outlined some important general principles.

    The Supreme Court of Canada affirmed that a sentencing judge always had the authority to consider the impact of an infringement of a citizen’s Charter rights in arriving at a just sanction, and there is no requirement for a formal application for a remedy. The reason for this is that the court understood that a “fit” sentence is one that respects and considers the fundamental values enshrined in the Charter. At paragraph 48-49 (emphasis added):


    Indeed, the sentencing regime under Canadian law must be implemented within, and not apart from, the framework of the Charter. Sentencing decisions are always subject to constitutional scrutiny. A sentence cannot be “fit” if it does not respect the fundamental values enshrined in the Charter. Thus, incidents alleged to constitute a Charter violation can be considered in sentencing, provided that they bear the necessary connection to the sentencing exercise. As mitigating factors, the circumstances of the breach would have to align with the circumstances of the offence or the offender, as required by s. 718.2 of the Code. Naturally, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence.

    This is consistent with the communicative function of sentencing. A proportionate sentence is one that expresses, to some extent, society’s legitimate shared values and concerns.

    58. This case does not concern a specific breach of the Appellant’s Charter rights. However, that does not mean that the Charter is divorced from the analysis. Our constitution remains present, and its values must be considered if the court is to arrive at a just and fit sentence. This is precisely why the hateful nature of the Appellant’s conduct is an aggravating factor. However, the Charter also speaks to mitigating factors in this case. Fairness requires that these be considered as well.

    59. For civil libertarians who believe that hateful speech should be confronted and challenged, rather than censored by state agents, the constitutional battle is lost. This is fully and respectfully acknowledged by the Appellant. Nevertheless, it is vital to recognize the context within which this court is operating.

    State infringement on freedom of speech was found to be demonstrably justified in a free and democratic society in the human rights legislative context in Canada (H.R.C.) v. Taylor50 and Saskatchewan (H.R.C.) v. Whatcott.51 However, the process by which the infringement was justified speaks to the fact that the Supreme Court and civil society still recognize that free expression is integral to both democracy and the rule of law - a bedrock right, upon which all other civil rights are built. Indeed, it is a right integral to our modern conception of the rule of law itself. The Appellant very respectfully submits that this Honorable Court should approach the issues in this sentencing with humility, fully cognizant of the nature of the s. 1 justification that provides the legal authority to take the liberty of a citizen who, while admittedly is guilty of contempt, is nonetheless on the facts of the case being punished for expressing his political views – however distasteful and repugnant they might be. This same humility will also allow future courts to be vigilant in ensuring that the definition of “hatred and contempt” is not unduly expanded.

    60. This does not mean that the conviction was improper, or that the CHRT and the court are not entitled to ensure its orders are respected and followed. But, taking the liberty of a citizen is the state’s ultimate weapon, and it is the Appellant’s respectful submission that no court should lightly undertake this task. This is especially true when the factual nature of the crime involves political speech.52 Justice must be tempered, especially when the legal regime’s constitutional justification rests on the proportional limitation of a fundamental right that resulted from a delicate balance of competing values that are all entrenched in Canada’s supreme law.

    61. Again, the legal analysis by which the constitution allows state power to restrict a fundamental civil right under s. 1 of the Charter is itself a delicate balancing exercise that involves limiting freedoms that are part of the supreme law of Canada. The seminal case on s. 1 is R. v. Oakes.53 At paragraph 66 of the decision, Chief Justice Dickson stated (emphasis added):

    It is important to observe at the outset that s. 1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and second, it states explicitly the exclusive justificatory criteria (outside of s. 33 of the Constitution Act, 1982) against which limitations on those rights and freedoms must be measured.

    Accordingly, any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms — rights and freedoms which are part of the supreme law of Canada. As Wilson J. stated in Singh v. Min. of Employment & Immigration, supra, at p. 218:

    It is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.


    62. The s. 1 analysis requires the state to prove that the infringement of a constitutional right constitutes a minimal impairment of that right. Further, the effect of the state infringement must be proportional to its objective. At paragraph 74-75 (emphasis added):

    Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the objective which has been identified as of "sufficient importance".

    With respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s. 1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these.

    Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.

    63. The fact that the type of expression uttered in this case has been found to be legally limited pursuant to s. 1 of the Charter does not mean that the underlying importance of free speech is divorced from the sentencing process. The Charter right does not vanish from existence simply because legislation has been found to legitimately restrict it. The values underlying the right must remain and factor into the sentencing analysis, because the court’s action in sentencing a citizen is a further infringement that must also be reasonable in the circumstances. As the Appellant’s right to free speech has been limited, not removed, it is incumbent on any sentencing court to recognize that any action it takes must also be considered a further “effect” of the state’s power to limit the right. Even if this consideration is difficult or uncomfortable when dealing with actions such as the Appellant’s hateful speech, it is respectfully submitted that a sentencing court must nevertheless measure its response with the underlying values of freedom of expression in mind.

    64. Of course, this does not mean that the state cannot restrict the Appellant’s speech. The Supreme Court of Canada has confirmed that it can. Equality and the right to be free from discrimination are also integral rights. The Appellant is not submitting that the court does not have the jurisdiction to take the liberty of a citizen for hateful speech. What is submitted is that a fit and proper sentence is one in which the court recognizes that the delicate nature of the constitutional balance upon which this jurisdiction rests requires that justice be tempered and measured.

    It is submitted that the sentence imposed in this case is also demonstrably unfit because it does not give sufficient weight to the solemn reality that the entire legal regime upon which this Appellant is before the courts rests on a delicate balance that allows for censorship and a limitation of a right of incredible importance to every citizen. Surely in a situation such as that presented in the case at bar, the principle of restraint takes on special significance.

    65. This is so even though the charge is contempt, because the underlying facts of the contempt relate to expression. Those underlying facts were considered to be aggravating by the learned sentencing Judge. It is significant to the sentencing process that part of the facts underlying the contempt include the Appellant’s dissemination of electronic books such as The Poisonous Mushroom, The Turner Diaries, and The Protocols of the Learned Elders of Zion,54 especially when this court can take judicial notice of the notorious fact that these very same books are widely available on the internet, and some of them are even sold by online booksellers profiting off of Canadian customers. This court can further take note that though Adolf Hitler’s Mein Kampf remains available in most major public libraries in Canada, the learned sentencing Judge nevertheless found that the Appellant’s decision to post a large quote from this widely available book was illegal and ordered it removed.55 It is submitted that an action by a court of law to prohibit the distribution of books has no place in a 21st century liberal democracy. The Appellant respectfully asks the court to consider the implications of imprisoning a citizen in part because he disseminated books.

    66. Also included in the broad social context is the fact that Parliament has now repealed the legislative provision on which this entire litigation is based.56 The Appellant understands that does not excuse him from his duty to follow the order of the CHRT. Nor does it invalidate or question the conviction that this Honourable Court entered upon him. However, the Appellant submits that Paliament’s action signals an intention to remove the jurisdiction of the CHRT to try these types of cases. As part of the ongoing dialogue between Parliament and the Courts, it is submitted that it is incumbent on a sentencing Court to factor in Parliament’s message in arriving at a just and fit sentence.

    67. With respect, the learned sentencing Judge did not consider the impact of either the underlying constitutional issue or Parliament’s decision to repeal the very legislative provision that formed the basis for the litigation. As he did not do so, the Appellant respectfully submits that he erred. The Appellant respectfully asks this court to consider that as the aggravating nature of the facts underlying the contempt must be considered in arriving at a fit sentence, so must the broader social and legal context be considered. This court is humbly asked to reflect on the implications of taking the liberty of a citizen based on facts such those presented in the case at bar, even if that citizen’s views are repugnant. It is respectfully submitted that is within the proper function of this court to send a clear instruction to trial-level courts that in sentencing a citizen in cases such as this, the delicate balance of Charter values must be given due consideration and respect.


    PART IV – CONCLUSION AND NATURE OF RELIEF REQUESTED



    68. The Appellant respectfully submits that the learned sentencing judge erred in law and principle for the reasons outlined in this Memorandum of Law. The Appellant further submits that the sentence is manifestly harsh, excessive, and demonstrably unfit, especially considering that he is a first offender.
    69. The Appellant requests that the 30 days imprisonment portion of the sentence be set aside, with the conditional/suspended portion of the sentence reduced to 60 days. It further requests that portions of the prohibited material relating to books be severed, specifically “Exhibit H”, “M”, “AA”, “BB”, “CC”, and “DD”.
    70. The Appellant asks for costs of the within appeal.


    ALL OF WHICH IS RESPECTFULLY SUBMITTED, this ________ day of July, 2013

    Legal Aid Saskatchewan
    Regina City Area Office


    Per:
    Andrew L. Hitchcock
    Solicitor for the Appellant, Terry Tremaine


    PART V – LIST OF AUTHORITIES



    Legislation and Rules of Court

    Canada Act 1982 (UK), 1982, c. 11
    Canadian Criminal Code, R.S.C 1985, c. C-46
    Canadian Human Rights Act, R.S.C. 1985, c. H-6
    Charter of Rights and Freedoms, as part of The Constitution Act, 1982, Schedule B to the
    Federal Court Rules, 1998, SOR/98-106

    Jurisprudence

    Canada (Attorney General) v. de l’Isle (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)
    Canada (H.R.C.) v. Taylor [1990] 3 S.C.R. 892 (S.C.C.)
    Canada (Minister of National Revenue) v. Money Stop Ltd. 2013 FC 133
    Canadian Copyright Licensing Agency v. U-Compute (2005), 284 F.T.R. 116
    Canadian Human Rights Commission v. Winnicki, 2007 FCA 52
    International Forest Products Ltd. v. Kern, 2001 BCCA 48
    MacMillan Bloedel Ltd. v. Simpson (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)
    Penthouse International Ltd. v. 163564 Canada Inc., (1995), 63 C.P.R. (3d) 328 (Fed. T.D.)
    Puddester v. Newfoundland (Attorney General), 2001 NFCA 25
    R. v. Campeau 2009 SKCA 3
    R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)
    R. v. Gladue [1999] 1 S.C.R. 688 (S.C.C.)
    R. v. Keegstra [1990] 3 S.C.R. 697 (S.C.C.)
    R. v. M. (C.A.) [1996] 1 S.C.R. 500 (S.C.C.)
    R. v. Nasogaluak [2010] 1 S.C.R. 206 (S.C.C.)
    R. v. Oakes [1986] 1 S.C.R. 103 (S.C.C.)
    R. v. Shopshire [1995] 4 S.C.R. 227 (S.C.C.)
    R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal to S.C.C. refused; (2008), 253 O.A.C. 397 (S.C.C.)
    Regina (City) v. Cunningham, [1994] 8 W.W.R. 457 (Sask. C.A.)
    Salt River First Nation 195 v. Marie, 2006 FC 1420
    Telewizja Polsat SA v. Radiopol Inc. 2006 FC 137
    Telus Communications Ltd. v. T.W.U. 2006 BCSC 397; reversed in part on the issue of costs; 2008 BCCA 144
    U.N.A. v. Alberta (Attorney General) [1992] 1 S.C.R. 901 (S.C.C.)
    Saskatchewan (H.R.C.) v. Whatcott 2013 SCC 11
    1 (1994), 56 C.P.R. (3d) 371 (Fed.C.A.)
    2 Ibid at para. 6
    3 [1995] 4 S.C.R. 227
    4 [1996] 1 S.C.R. 500
    5 2009 SKCA 3
    6 (1996), 112 CCC (3rd 97) Ont. C.A.
    7 Warman and CHRC v. Terry Tremaine, 2007 CHRT 2 (Appeal Book filed in Court File A-468-10)
    8 Appeal Book filed in A-468-10, Vol. 1, Tab 4
    9 Appeal Book at p. 239
    10 Appeal Book at p. 240 - 244
    11 Appeal Book, at p. 252
    12 Appeal Book, at p. 261
    13 Appeal Book, at p. 266 – 268, 270
    14 Appeal Book, p. 384-385
    15 Appeal Book, p. 370-371
    16 Appeal Book, p. 112-122
    17 See: Rule 469, Federal Courts Rules, SOR/98-106 (“Rules”); and Brilliant Trading Inc. v. Wong, 2005 FC 1214 at para. 15.
    18 2001 BCCA 48
    19 Ibid at para. 20
    20 2001 NFCA 25
    21 See especially Ibid at para 32, 54-55
    22 Sussex Group Ltd. v. 3933938 Canada Inc., 2003 CanLII 27188 (ON SC)
    23 [1999] 1 S.C.R. 688 (S.C.C.)
    24 2007 FCA 52
    25 Ibid at para 21
    26 (2005) 284 FTR 116
    27 Winnicki, supra note 24 at para. 21
    28 Appeal Book, at 118-120
    29 [1992] 1 S.C.R. 901 (S.C.C.)
    30 Ibid. at para. 24-25
    31 See: Penthouse International Ltd. v. 163564 Canada Inc. (1995), 63 C.P.R. (3d) 328 (F.C.T.D.)
    32 Appeal Book at 240
    33 2006 BCSC 397; reversed in part on the issue of costs; 2008 BCCA 144
    34 (1994), 88 C.C.C. (3d) 148 (B.C. C.A.)
    35 See Ibid, at para 15-21, 58
    36 [1994] 8 W.W.R. 457 (Sask. C.A.)
    37 Winnicki, supra note 27
    38 Telus Communications supra, note 33
    39 2005 FC 1644
    40 2006 FC 1420
    41 2006 FC 137
    42 2013 FC 133
    43 (2006), 205 C.C.C. (3d) 488 (Ont. C.A.)
    44 Ibid, see especially: para 30-33
    45 See: R. v. Yue (2007), 226 C.C.C. (3d) 349 (Ont. C.A.); leave to appeal to the Supreme Court of Canada refused; (2008), 253 O.A.C. 397 (S.C.C.)
    46 Appeal Book at p. 12
    47 Judgment under appeal at para. 25, Appeal Book at p. 12
    48 Appeal Book at 251.
    49 [2010] 1 S.C.R. 206
    50 [1990] 3 S.C.R. 892 (S.C.C.)
    51 2013 SCC 11
    52 in R. v. Keegstra [1990] 3 S.C.R. 697, the Supreme Court of Canada was clear that even hate propaganda constitutes “political expression” at para. 95
    53 [1986] 1 S.C.R. 103 (S.C.C.)
    54 Appeal Book filed in Court file A-468-10, Affidavit of Richard Warman, p. 140
    55 Appeal Book, at p. 17
    56 Bill C-304 An Act to Amend the Canadian Human Rights Act (Protecting Freedom), Royal Assent Statutes of Canada: 2013, c. 37]

    Canadian Association for Free Expression

    https://www.cafe.nfshost.com/ https://www.canadianfreespeech.com/

    Post Office Box 332
    Rexdale, Ontario (ON) M9W 5L3
    CANADA

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    Last edited by Pearson; 08-19-2013 at 07:07 AM.
    CANADIAN ORGANIZATIONS
    Canadian Association for Free Expression - Paul Fromm
    https://www.cafe.nfshost.com
    https://www.canadianfreespeech.com/
    National Socialist Party of Canada - Terry Tremaine
    https://www.nspcanada.nfshost.com/
    Alliance of the North - François Bélanger
    https://www.alliancedunord.ca/
    https://www.saveyourdistrict.ca/
    Freedomsite - Marc Lemire
    https://www.freedomsite.org/
    Radical Press - Arthur Topham
    https://www.radicalpress.com/
    HAIL VICTORY!!
    Douglas

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