Barrel Strength

Notes from the HRC Tribunal Hearing of Warman vs. Lemire

Background

The hearing in Ottawa on Tuesday was the last in a five week-long process concerning a prosecution of Marc Lemire under section 13.1 of the Canadian Human Rights Act, titled Richard Warman, complainant, and CHRC versus Lemire, respondent. Most of the hearings had occurred in 2007.

The Human Rights Commission had previously sought to exclude its staff from being questioned about their investigative techniques, or to be identified at all, on the grounds that they would be subject to real and substantial risk. The presiding judge of the Human Rights Tribunal, Athanasios Hadjis, had previously ruled that these employees might be questioned, but without third parties present. The respondent Marc Lemire had also gone to the Federal Court to compel the production of evidence, which the Human Rights Commission subsequently allowed him to have. The fact that the Commission was seeking in court to prevent the disclosure of information that it had already given to Marc Lemire weighed heavily in Judge Hadjis’ revoking his own decision.

Judge Hadjis changed his mind, rescinded his previous order, and allowed questioning to go ahead. This resulted in the proceedings of Tuesday March 26^th in Ottawa.

The persons in the court consisted of about 31 attendees, of whom two were undercover cops, two uniformed cops, and eight lawyers. Miss Barbara Kolaszka for respondent Lemire, Margot Blythe (?) for the CHRC, Alyssa Davies for the Canadian Attorney-General, Doug Christie for the Canadian Free Speech League, Paul Fromm for the Canadian Coalition for Free Expression, two men from the Simon Wiesenthal Centre and B’nai B’rith Canada. Miss Kolashka was on her feet questioning witnesses for most of the day, with Mrs. Blythe defending, and Doug Christie occasionally getting in airtime.

These were the parties of record a year ago, when the first ruling on this case was made:

PARTIES OF RECORD

Caveat Lector

These notes are as accurate as I could make them, given my understanding at the time of the issues and personalities mentioned from previous cases. Where I have written answers in quotation marks, I am more than usually sure that this represents exactly what the person said. Even here the court transcript will be definitive, and error is always possible. Though I have read into the cases mentioned in passing by the witnesses and lawyers, there may well be mistakes of understanding the meaning of what was being said.

Alain Monfette

The fist witness was M. Alain Monfette, director of law enforcement compliance at Bell Canada, who identified the source of a particular posting by name and address, working back from a dynamically assigned IP address, to a telephone number and an address. The posting had been made under the name Jadewarr, which is the pseudonym used by the Commission’s hate crime’s investigator, Dean Stacey. (The posting to the FreeDominion site, was almost certainly made through an unsecured radio-based link).The disclosure of the name and address of the unfortunate person whose IP address had been used, named Nellie Hechme, an employee of Bell Canada, has since been covered elsewhere. The point of this discovery is that neither Dean Stacey nor Hannya Rizk ever admitted to making this posting, leaving the distinct impression that another person had been able to use their username and password to make the posting in question.

Procedural Interlude

Procedural discussion took place. The Human Rights Commission lawyer, Mrs. Blythe (I recall) stated that, to minimize further objections, a Commission lawyer had reviewed previous questions from previous encounters in this proceeding. A letter of March 20^th to the parties had listed all previous questions which had been refused, and to these were given the HRC’s answers.

Judge Hadjis stated that “these were not [to be considered] testimony. They [the HRC witnesses] will testify now.”

Mr. Fromm rose to observe that this was the twentieth day complainant Warman had not been in attendance.

Hannya Rizk

The second witness, Hannya Rizk, of the Human Rights Commission, was a junior staffer. She spoke as if she were highly nervous. (Anyone who has given testimony in a court, subject to cross-examination, can sympathize). Various procedural questions were raised by Doug Christie, and the Judge ruled that the scope of the case was closed as of the previous June, 2007. Rizk’s interesting testimony was that:

• Richard Warman never referred her to any part of this complaint, or directed her to any particular site.
• He had not told her that he posted messages to the site complained of.

(The postings by Richard Warman to various conservative or right-wing sites under pseudonyms has been the subject of much concern. Essentially the role of Richard Warman in 42 of the HRCs hate crimes prosecutions, and his financial awards in consequence, has come under public scrutiny in recent months.  He has also posted derogatory remarks about the conservative Senator Anne Cools under a pseudonym. See http://www.freedominion.com.pa/phpBB2/viewtopic.php?p=1149352 )

Dean Stacey

Dean Stacey is the senior investigating officer of the HRC in several hate crimes files. He went blind in 2004, so that his testimony had to be assisted by readings of various texts in order that he could recognize them. Barbara Kolaszka spent most of the day on her feet cross-examining Mr. Stacey.

He revealed that he signed into several websites and discussion boards as Jadewarr, from Jade Warrior, and Odin’s Revenge, misspelled as Oden’s Revenge. This was done to increase his ability to see all the contents of sites, to search them out better, and to retrieve documents, he said. He joined Stormfront in February 2005 to further his investigation. The Canadian Human Rights Commission (CHRC) was the subject of a post on Stormfront on September 11, 2006 where it was declared that the promotion of hate by the RCMP - presumably their getting on to sites and provoking hate speech - was found by the HRC to be “no problem”. The thread in question was started by respondent Lemire. This situation arose in consequence of a complaint against Stephen Camp of the Edmonton Police that his email jokes and comments to members of the RCMP were likely to expose whites and Indians to hatred. Apparently on August 10, 2006, the CHRC had allowed the police to post to Stormfront. Lemire had tried to file a complaint to the CHRC about this behaviour, but Stacey had rejected this complaint on the grounds that it was printed on both sides of the page, contrary to their procedural rules. Stacey said there were strict rules for the format of a complaint, under section 40 of the Human Rights Act (the Act).

Mr. Stacey had posted on Stormfront in September 2006 in the same discussion thread. Asked why he had done so, Stacey replied that he was trying to find out why Lemire had complained against the RCMP. Why had he not asked Lemire directly?

“They were trying to prevent us from investigating by flooding us with letters”, he replied.

-Why had he filed a post when the matter was then closed?

- “I have no power to dispose of a case, only the Commission can do this”.

-Were you posting to show that Lemire was vexatious?

- Probably. More to find out why [he was engaged in the tactics he then used against the HRC].

At this point there was an intervention by Judge Hadjis, who spoke of a May 17^th letter to Lemire. He pointed out that Lemire’s complaint had not met the criteria of the Act for a hate crime: the email communication of the Peel Regional Police to members of the RCMP had been private, and that broadcast reports of the issue were also protected under s. 13(2) of the Act. Mr. Stacey admitted to an error of memory in relation to this complaint of Lemire’s.

[Whether the issue of communications from Stephen Camp of the Edmonton Police Force was the same or different from the communications of the Peel Regional Police Force is not known by me at this time. There was a great deal of involved precedents under discussion in the cross -examination.]

Mr. Stacey was then asked about how many people knew of his pseudonyms “Jadewarr” and Oden’s revenge”.

-”Everyone investigating hate crime on the net would know of my pseudonyms. The whole team except maybe policy and legal. Sandy Kozak knew about it.”

-How many people was that?’

-Four people: his assistant, Sandy Kozak, John Chamberlain. The manager would not have control over it. I have latitude in my investigations.

-Warman did not have the password?

-No. I didn’t give it to him.

-Might he have been given it?

-I don’t know.

The Warman versus Beaumont case was then mentioned.

 http://www.chrt-tcdp.gc.ca/search/files/t1106_8705ed26oct07.pdf 

The issue concerned the presence of Richard Warman in CRHC headquarters, in conjunction with Dean Stacey’s investigation of the case. Warman was the complainant in that case, as in many, many others. Warman wanted to show Stacey a poem by Jessica Beaumont, and it was found on the Stromfront bulleting board, using the Jadewarr alias, and not without it.

Stacey said that Warman wanted a certain posting printed off at the HRC offices, in conjunction with Stacey’s investigation of Beaumont. Kolaszka continued.

-Did he [Stacey] know who printed off the document?

-No.

The next round of questions concerned what was called the “Finnerson” post, which apparently had advised neo-Nazis that. “for the price of a letter”, they could tie up the CHRC in knots with actions, investigations and suits. A complaint had been made by an Andrew Gill, possibly in consequence of this Finnerson posting, in April of 2006 and Mr. Stacey had filed a report on the issue on October 2006. Miss Kolaszka’s questions concerned whether Mr. Stacey knew who this Finnerson was. Stacey wrote to Finnerson as a sympathizer, complaining that people had lost their jobs because of postings on the site in question. The letter asked Finnerson for an example of a complaint letter that could be sent, but Finnerson never supplied one. Stacey was able to figure out who Finnerson was. It was relayed as a fact by Stacey that a certain Terry Tremaine had lost his/her job as a result of a complaint to the CHRC.

After lunch a round of questions of Stacey by Kolaszka concentrated on the investigation of Free Dominion website, which is a moderated bulletin board, complete with a set of rules for copyright and civil exchanges, for the purpose of various conservative postings. The site claims to be for “principled conservatism”. The facts established that Stacey had logged into the site on January 18^th, 2008. A certain complaint about Free Dominion was launched by a woman called “Gentes” in September of 2006.

-Why were you on Free Dominion before the complaint?

- there was the possibility of a complaint. Several people were in contact with the HRC concerning how to make a complaint [about Free Dominion].

-Who were inquiring?

-I refuse to answer

HRC counsel (Blythe) intervened to claim that there was a reasonable expectation of privacy in dealing with the Human Rights Commission, citing the Wigmore test. (see http://en.wikipedia.org/wiki/R._v._Gruenke)

Kolaszka: Mr. Stacey has repeatedly stated that the HRC process is “complaint-driven.”

Judge Hadjis: There was no formal complaint on the record when he joined Free Dominion. This is clear on the record.

DS. We go onto sites to determine whether the site is within Commission jurisdiction. It is al complaint-driven.

Hadjis: “What do you mean by “complaint driven”?

DS - Something can be sent in to us which requires the HRC to look at sites, to determine by their address whether we have jurisdiction.

Stacey admitted that they help certain complainants to frame their complaint so that “often the date they sign the complaint is the date the complaint the date is accepted.”

2:30 pm break

Hadjis reproves Kolaszka for a late request for the Jadewarr material. “This has been a five-week proceeding so far.” Most fo the material is presented.

Kolaszka - When did you know that Richard Warman was posting as Axetogrind?

DS: I did not become aware until it was on HRC evidence. I learned of it be reading the Beaumont decision. (October 26, 2007)

BK- Do you read tribunal decisions?

DS - “Occasionally”.

BK- Do you read tribunal transcripts?

DS- “We don’t have the time.”

Kolaszka inquired as to whether there were guidelines as to who at the HRC could post, and what kinds of posts could be made.

DS- There are “no guidelines as to what kinds of posts Human Rights Commission people can make.”

BK- How is DS keeping track of who at the HRC is posting?

Doug Christie (intervening) “It is a logical concomitant that we should know who is posting under what pseudonyms so that the HRC are not investigating each other.”

DS revealed that he had been discussing with Richard Warman under what pseudonyms he had been posting.

DS- When the complaint came in against Warman, Warman gave a section 41 objection, [which includes claims that the complaint is frivolous or vexatious]. This takes it out of the normal stream and puts it into the other. I focused on IP address information, not pseudonyms. “I have never asked Richard Warman specifically what his aliases were.”

BK - Was there ever a discussion at the Commission about Richard Warman’s use of pseudonyms?

DS- it was thought out of bounds.

BK- has any HRC been done on enticement or entrapment?

DS - not that I am aware of.

BK- Have you ever inquired of other HRC staff whether they post [pseudonymously]?

DS - No. That would be intervention in others’ case loads.

BK- Why has it never been disclosed that Mr. Stacey posts on websites [in the investigation of cases]?

Blythe (HRC Counsel) - The Commission took the position it was confidential.

DS- I have used our pseudonyms to try to locate persons in space. Yes I have used email Jadewarr - not the message board - in the BC White Pride case, re Steven Camp, Edmonton Police, [which concerned]  posting incitement.

Stacey had not been aware that the alias estate was a cop until the HRC decision in the case.

DS- “I don’t recall reading “estate’s” postings.”

Questions then concerned the Kulbashian case. http://www.chrt-tcdp.gc.ca/search/files/t869_11903de.pdf A London, Onatrio policeman named Terry Wilson, of the hate crimes unit, supplied Dean Stacey with a CD of the case. Wilson monitors websites and chatlines for content. [It was unclear whether a crime had been committed].  Kulbashian’s computer was seized. It appears that Richard Warman had informed Wilson in 2001 of the identity of the web-host, which turned out to be Kulbashian.

DS- I picked up the phone called London police, proved I was with the Human Rights Commission, and asked for the files on the case.

BK- Were Kulbashian and Richardson ever charged?

DS - They were charged with uttering a death threat, not a hate crime.

BK -How do you get access to information regarding criminal prosecutions?

DS - I can get a warrant. I don’t think I can use CPIC [a system restricted to police officers].

DS was unaware that the HRC was simultaneously investigating hate files, and prosecuting under criminal law.

BK - Is it useful to have a police charge [in your cases]?

DS - We appreciate the cooperation of all parties.

4:00 pm (Mark Steyn leaves for New York)

Reference was made to material supplied by the Commission concerning Stacey’s use of aliases. The subject of a poem by Jessica Beaumont being printed out at Commission offices from the Stormfront website. The printout has written at the top margin of the page “Welcome to Jadewarr”, giving the person who was entered on the site at the time it was printed.

Hadjis- We have evidence Jadewarr was entered inot the site on April 13, 2005.

Kolaszka- Do investigators have exemptions under section 13 [for postings made in the course of investigations]?

DS - No. If they posted hate they would face prosecution.

Doug Christie took over the cross-examination of Dean Stacey. He concentrated on relations with police forces, and a Memorandum of Understanding (MoU) with the RCMP.

DS- The MoU we have with the RCMP has nothing to do with the section 13 crimes. The MoU has to do with prevention, complaints against the RCMP. The MoU is on the Internet. It is the only agreement we have with the RCMP.

Questions proceeded in relation to the relations of the HRC to police forces.

DS- We have had meetings with major police forces, the RCMP and CSIS.

Christie: Doesn’t that trouble you, to discuss section 13.1 enforcement with the police?

DS- No.

Christie - Do you concern yourself whether a person posting to a website is a Canadian?

DS - yes. It is the basis of our jurisdiction.

Christie - DO have a registry of pseudonyms?

DS - No

Christie- You could actually sue one another?

DS- It depends on the nature of the complaint taken. “We do not direct the complainant as to who they complain against”.

Christie - You could actually sue someone for postings put up by police?

DS- “I guess”.

Christie - How often have you given police information?

DS- Twice

Christie - In the Kulbashian case, could you have obtained the hard drive any other way [than by receiving it from the police]?

DS - I could have obtained it by warrant.

Christie - So you haven’t obtained a hard drive by warrant?

DS - No

Christie - Why were you investigating Free Dominion a year before the complaint was filed?

DS - I was not “investigating” at that time.

Christie - Did you have communications with Marie-Lynne Gentes before her complaint?

DS - I had no email communication [with her].

Michael Moslin of B’nai B’rith Canada had a short exchange with Dean Stacey. It concerned the many ways of taking in a complaint. DS considered the term “all complaints” included both formal and informal complaints.  The thrust of the questions was to show that the techniques employed in the investigations were normal.

Paul Fromm of  the Canadian Association for Free Expression inquired how Dean Stacey, who has been blind since 2004, could investigate things on the Internet. DS said he had a “jaws” screenreader, a scanner and an assistant who read to him.

PF- Why were Warman’s complaints given to you?

DS- “Because I was the investigating officer at the time.”

Mrs. Blythe of the Human Rights Commission asked questions, but I did not stay to record the answers. I left at about 5pm.