BETWEEN:
SABINA CITRON
Complainants
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
ERNST ZÜNDEL
Respondent
LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA
CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION
SIMON WIESENTHAL CENTRE
CANADIAN JEWISH CONGRESS
CANADIAN ASSOCIATION FOR FREE EXPRESSION INC.
Interested Parties
REASONS FOR DECISION
T.D. 1/02 2002/01/18
PANEL: Claude Pensa, Chairperson
Reva Devins, Member
TABLE OF CONTENTS
V. DID THE RESPONDENT, ERNST ZÜNDEL, CONTROL THE ZUNDELSITE?
A Background
B. The Zundelsite Documents
C. Irene Zündel Evidence
D. Analysis
E. Finding
1. Was the Material Communicated Telephonically
A. Expert Evidence: Ian Angus and Bernard Klatt
(i) Global Telecommunication
(ii) The Internet
(iii) The World Wide Web
B. Analysis: Is Material Transmitted Via the Internet Communicated Telephonically
(i) Statutory Interpretation: Human Rights Legislation to be Interpreted Purposively.
(ii) Interpreting s. 13 in Light of the Harm Addressed
(iii) The Internet Operates Over the Telephone Network
(iv) Telephonic Communication Not Restricted to Voice Communication
(v) Expert Evidence and Dictionary Definitions
2. Is the Zundelsite Communicated in Whole or in Part by Means of the Facilities of a Telecommunication Undertaking Within the Legislative Authority of Parliament
3. Was There Repeated Communication 'Caused' by the Respondent
4. Finding
1. Is the Material Likely to Expose a Person or Persons to Hatred or Contempt
A. Evidence
(i) Documents
(ii) Commission Experts: Professors Prideaux and Schweitzer
a) Professor Prideaux: Discourse Analysis
b) Professor Schweitzer: Historical Motifs in Anti-Semitism
B. Analysis
(i) Legal Test: S 13(1)
(ii) Definition of 'Hatred' or 'Contempt"
(iii) Are These Materials Likely to Arouse "Unusually Strong Emotions of Detestation, Calumny or Malevolence"?
2. The Context in Which the Documents on the Zundelsite are Communicated: the Characterization of the Zundelsite as Part of an Ongoing Historical Debate.
3. Finding
A. The Canadian Charter of Rights and Freedoms
(i) Section 2
(ii) Charter Right Breached
(iii) Charter Section 1 - Onus of Proof
B. Taylor
(i) Facts
(ii) The Oakes Test
(iii) Rational Connection
(iv) Minimal Impairment
(v) Conclusion
C. Dagenais
D. Motion - Section 52 of the Constitution Act, 1982
(i) Application of Taylor to Internet
a) Respondent's Position
b) Evidence on Motion
c) Commission's Argument
d) Analysis and Conclusion
(ii) Evidence of Chilling Effect on Expression
(iii) Amendments to the Canadian Human Rights Act Since 1990
(a) Analysis
(iv) Freedom of Conscience and Religion
(a) Analysis
(v) Section 7 - Charter
(a) Analysis
(vi) Conclusion
[1] Access to the Internet has revolutionized global communication and has had a profound impact on modern society. With its promise of readily accessible information and the explosion in use of the Internet, serious concerns have been raised about the content found on many sites. The relationship of the Internet to existing regulatory frameworks, such as restrictions on the display of pornography, the protection of individual privacy, and the limits of permissible commerce are all the subject of significant legal debate and public controversy.
[2] As we begin to explore the legal limits of the use of the Internet for the mass distribution of information, fundamental issues are raised regarding the preservation of legitimate free speech interests. At the same time, the proliferation of alleged 'hate sites' on the World Wide Web has been particularly disturbing for the equality seeking community. This case, for the first time, raises squarely the application of the Canadian Human Rights Act to sites on the World Wide Web, and yet again exposes the constant tension between competing social interests.
[3] The complaints now before us seek to apply s. 13(1) of the Canadian Human Rights Act to communication via the Internet. It is alleged that by posting material to the Zundelsite, the Respondent, Ernst Zündel, caused repeated telephonic communication that was likely to expose Jews to hatred or contempt. We are therefore asked to determine whether it is a discriminatory practice to post material on a Website if the material is likely to expose a person to hatred or contempt. What limits, if any, are to be applied to repeated communication of hate messages via the Internet? Finally, if applied to the Internet, is this a permissible restriction on freedom of speech under the Charter of Rights and Freedoms?
[4] On July 18, 1996, the Mayor's Committee On Community And Race Relations (the "Mayor's Committee") filed a complaint with the Canadian Human Rights Commission (the "Commission") alleging that Ernst Zündel was placing messages on the World Wide Web that were likely to expose a person or persons to hatred or contempt, on the basis that those individuals were identifiable on the basis of a prohibited ground of discrimination, contrary to s. 13(1) of the Canadian Human Rights Act.
[5] The particulars of this complaint allege that from October 10, 1995 onward, Ernst Zündel offered a Homepage on the World Wide Web that repeatedly provided pamphlets and publications that were likely to expose persons of the Jewish faith and ethnic origin to hatred and contempt. Examples of these messages were cited in, and attached to the Complaint form and included the following publications: "Did Six Million Really Die", "66 Questions and Answers on the Holocaust", and "Jewish Soap" (1).
[6] Sabina Citron, who identifies herself as a Jew and survivor of the Holocaust, lodged a parallel complaint on September 25, 1996. In the particulars of her complaint, Ms. Citron alleges that she read similar information to that outlined in the complaint by the Mayor's Committee, and that she believes that these messages are likely to expose her and others to hatred and contempt. She further states that she downloaded these materials on August 14, 1996 from a Homepage called the "Zundelsite", which she asserts is offered by the Respondent, Ernst Zündel on the World Wide Web.
[7] The central thesis of both complaints is that the Respondent, Ernst Zündel, was engaged in a discriminatory practise when he caused to be communicated, via the World Wide Web and the Internet, material that was likely to expose Jews to hatred and contempt. It is alleged that, by posting material on the Zundelsite the Respondent has caused the repeated telephonic communication of hate messages.
[8] The history of adjudication before the Canadian Human Rights Tribunal has demonstrated that complaints alleging the communication of 'hate messages' have invariably been the most vigorously defended, protracted and intensely emotional. This case proved to be no different. In the end, the inquiry into these complaints required 55 days of hearing, spanning over a number of years. There were constant evidentiary objections, and several motions to discontinue the proceedings for a variety of different reasons.
[9] Prior to setting out our reasons for decision on the merits of these complaints, we believe that it is necessary to review the procedural history of this hearing to provide the context for a number of our subsequent comments. The nature of the motions advanced and the emotions aroused in the course of the hearing ultimately affected the timing and orderly progression of this hearing.
[10] In particular, we must note that the Respondent did not participate in the submission of final argument on the merits of the case. He did provide written submissions on his constitutional motion challenging the validity of s. 13(1) of the Act, but we have been forced to turn to arguments raised at other times in order to extrapolate his defence on the merits. Obviously, there are certain constraints on our ability to anticipate the Respondent's arguments, however, we have tried to put forward all of the arguments initially advanced in the course of the hearing by Mr. Zündel's counsel prior to his withdrawal from the proceedings, as well as those issues that arise on the evidence before us.
[11] A chronology of the main procedural elements in this case is as follows:
a. The complaints were filed in July and September of 1996;
b. The matter was referred by the Commission to the Tribunal for a hearing on the merits on November 22, 1996;
c. The hearing was convened on May 26, 1997 before a three-member panel (3). The first three days of the hearing were reserved for arguments on a preliminary motion brought by the Respondent to have the matter adjourned; this motion was dismissed on May 27, 1997.
d. Intervener applications brought by the League for Human Rights of B'Nai Brith Canada, Canadian Holocaust Remembrance Association, and Simon Wiesenthal Center were heard on May 27, 1997, and allowed on June 19, 1997. The further application for intervener status brought by the Canadian Jewish Congress, and Canadian Association for Free Expression Inc. were allowed on October 14, 1997 and December 15, 1997, respectively. The application of Mr. Marc Lemire was denied.
e. The Commission opened its case on October 14, 1997, calling six witnesses, including three experts: one each in the fields of telecommunication and the Internet, discourse analysis, and historical anti-Semitism;
f. The Respondent opened his case on May 28, 1998, and called eight witnesses, including two experts, one in the field of telecommunications and the Internet, the other in the area of Holocaust Revisionism. Four other witnesses tendered as experts by the Respondent were not accepted as experts in the field in which they were being proposed (4);
g. Literally, from the day the hearing convened to the final days reserved for oral argument the Respondent brought a series of motions requesting that the hearing be adjourned or stayed:
1. Preliminary motion to stay on May 27, 1997;
2. October 14, 1997 motion to obtain information regarding Member's background;
3. April 8, 1998 motion to stay for institutional bias, based on Madam Justice McGillis' decision in Bell (#1);
4. June 10, 1998 motion alleging apprehended bias regarding Member Devins;
5. November 12, 1998 motion on institutional bias as a result of amendments to the Canadian Human Rights Act;
6. December 7, 1998, motion regarding resignation of Member Jain;
7. November 9, 2000 motion to adjourn pending the appeal of the Federal Court decision;
8. February 26, 2001 motion to stay as the issue was now alleged to be moot, on the grounds of counsel's assertion that Mr. Zündel had moved to the United States.
The Tribunal denied all of these motions, and proceeded in each instance to hear the evidence and argument on the merits of the complaints.
h. As the hearing progressed, many of the rulings made by the Tribunal were also reviewed in the Federal Court of Canada. On April 13, 1999, the Federal Court, Trial Division allowed the Respondent's motion alleging the apprehended bias of Member Devins. Although this decision was subsequently overturned by the Federal Court of Appeal on May 18, 2000, the hearing was adjourned for over 18 months;
i. On November 15, 2000 the Respondent brought a formal motion challenging the constitutionality of s. 13(1) of the Act. On November 9, 2000 the Respondent had requested that the constitutional motion be dealt with by affidavit evidence. After this request was denied, the Respondent's counsel D. Christie withdrew from the hearing. Counsel B. Kulazska did remain, and actively participated in the hearing on Mr. Zündel's behalf up to, but not including the presentation of final argument.
j. The Canadian Association for Free Expression Inc. called five witnesses on the Constitutional motion, Ms. Kulazska was present for the examination of these witnesses.
k. On December 7, 2000, at the conclusion of the presentation of evidence, the Tribunal established a schedule for final argument, with written submissions. The Respondent submitted written argument on the constitutional motion only.
l. Hearing dates were set for oral argument to begin February 26, 2001. At the commencement of oral argument, the Respondent brought a final motion to dismiss the complaints as moot, this motion was dismissed. Thereafter, the Respondent did not participate in oral submissions.
[12] Despite their novelty and significance, the issues raised by these complaints are straightforward:
1. Is Mr. Zündel a proper Respondent? Did he communicate or cause to be communicated the material found on the Zundelsite?
2. Was the material on the Zundelsite communicated telephonically, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament?
3. Are the materials contained on the Zundelsite likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination?
4. If s. 13 (1) applies to the Internet, does it violate s.2 (a), 2 (b), or s.7 of the Canadian Charter of Rights and Freedoms?
5. Remedy - is it appropriate to make an Order that might be of limited effect?
Canadian Human Rights Act
Section 2
The purpose of this Act is to
extend
the laws in Canada to give effect, within the purview of matters coming
within
the legislative authority of Parliament, to the principle that all
individuals
should have an opportunity equal with other individuals to make for
themselves
the lives that they are able and wish to have and to have their needs
accommodated, consistent with their duties and obligations as members of
society, without being hindered in or prevented from doing so by
discriminatory practices based on race, national or ethnic origin, colour,
religion, age, sex, sexual orientation, marital status, family status,
disability or conviction for an offence for which a pardon has been
granted.
Section 3(1)
For all purposes of this Act,
the
prohibited grounds of discrimination are race, national or ethnic origin,
colour, religion, age, sex, sexual orientation, marital status, family
status,
disability and conviction for which a pardon has been granted.
Section 13(1)
Hate messages
- It is a discriminatory practice
for a
person or a group of persons acting in concert to communicate
telephonically
or to cause to be so communicated, repeatedly, in whole or in part by
means of
the facilities of a telecommunication undertaking within the legislative
authority of Parliament, any matter that is likely to expose a person or
persons to hatred or contempt by reason of the fact that that person or
those
persons are identifiable on the basis of a prohibited ground of
discrimination.
VI. WAS THE MATERIAL ON THE ZUNDELSITE COMMUNICATED TELEPHONICALLY, REPEATEDLY, IN WHOLE OR IN PART BY MEANS OF THE FACILITIES OF A TELECOMMUNICATION UNDERTAKING WITHIN THE LEGISLATIVE AUTHORITY OF PARLIAMENT?
[49] We have concluded that the Respondent controlled the Zundelsite,
however, it remains to be determined whether s. 13(1)
embraces the transmission of data via the Internet.
[50]
The analysis of this issue can usefully be divided into three
sub-issues:
1. Was the material
communicated telephonically?
2.
Was the communication, in whole or in part, by means of the facilities of
a
telecommunication undertaking within the legislative authority of
Parliament?
3.
Was there repeated communication caused by the Respondent?
[51]
Each of these sub-issues represents distinct constituent elements under s.
13,
and therefore all of the above noted questions must be answered in the
affirmative if the complaints are to be substantiated.
1. Was the Material
Communicated
Telephonically?
A. Expert Evidence: Ian Angus and Bernard Klatt
[52]
The Tribunal heard from two expert witnesses qualified in the field of
telecommunications and the Internet. Mr. Ian Angus, called by the
Commission,
has acquired expertise in this area over a 25-year career in the industry,
most
recently as an independent consultant. The Respondent called
Mr. Bernard
Klatt, who has worked in the computer industry since 1973, and owned and
operated his own business as an Internet Service Provider between 1995 and
1998
(12).
[53] The Tribunal heard considerable
evidence from these experts regarding the operation of the Internet, the
role of
the World Wide Web, and the relationship between the telephone or
telecommunication network and the transmission of data via the Internet.
Although there were substantial areas of disagreement in the evidence given
by
these two witnesses, there was also considerable agreement on certain
features
of the Internet, and the World Wide Web.
[54] The evidence of Mr. Angus and Mr.
Klatt diverged largely around the meaning of "telephonic" and "telephony".
Where
Mr. Angus used the term "telephony" to embrace the transmission of a broad
range
of information including sound, data, video or graphic signals, Mr. Klatt
used a
more restrictive definition that embraced the transmission of sound only.
[55] There was no disagreement,
however, on
certain elementary features of current communication technology. The
evidence
that follows is an overview of some of the essential elements of the
telephone
or telecommunication network
">
(13),
the operation of the Internet, and the World Wide Web.
(i) Global
Telecommunication
[56] At its most basic level, the
telephone
network simply provides a local, national and global set of connections that
permits communication over a distance.
Global telecommunication networks
operate
by an inter-connected system that allows communication links to be
established
throughout the system. Communication links can be established regardless of
whether they are situated in different countries, or are operated by
different
companies. The physical components of the network are owned and operated by
countless telephone companies
(14).
While the free flow of traffic over
the
entire network is essential to the success of the system, ownership remains
local.
[57] The essential physical components
of
the telephone network are the circuits, switches, and communication
terminals.
The circuits provide the communication paths between different points in the
telecommunication network. Historically, copper wire carried sound traffic
or
transmissions. More recent technological advancement has allowed the
transmission of signals over optical fibres, or by way of wireless links,
and
the circuits have been adapted for other uses including the transmission of
fax
or Internet data
(15).
Conceptually, a circuit can be dedicated for full time use by a specific
user,
or may be shared by multiple users on a call-by-call basis. The same
physical
lines or circuits are used regardless of the kind of information
transmitted, or
whether the circuit is shared or dedicated.
[58] Switches are large computers set
up at
network hub points to control circuit-to-circuit connections. They set up,
monitor and release the incoming connections and link them with the
appropriate
outgoing circuit. Communication terminals are the final or destination
component
that allows an individual to use the telephone network, and would include a
telephone handset. Other examples of communication terminals include
Telephone
Devices for the Deaf (T.D.D.'s), computers, fax machines, modems, and voice
mail
and alarm systems. Increasingly, communication terminals are no longer
single
use devices, but are designed to perform multiple communication tasks, such
as a
computer with an integrated fax and voice mail system.
[59] A conventional telephone operates
by
converting sound into an electrical impulse that can then be transmitted
along a
circuit. Traditionally, the necessary conversion of sound was in analog
form,
and a telephone handset would convert sound waves into an electrical image
of
sound by creating electrical waves that were analogous to the sound wave.
Digital transmission, the transmission of a measurement of the wave in
Digital
Bits, has significant advantages in terms of the quality of transmission and
cost and is increasingly the preferred mode of transmission. As a result,
many
telephone calls will be processed at least partially in digital form.
(ii) The
Internet
[60] The Internet is a means of global
communication that relies on a universal set of protocols or standards for
the
transmission of information. Two related sets of communication instructions,
Transmission Control Protocol, (TCP) and Internet Protocol, (IP), govern how
information will move through the system, defining addresses, routing
systems,
and all the regulation necessary to permit communication among users.
[61] When information is carried on the
Internet en route to its designated destination, it is always organized and
broken down into a number of different packets. Each packet is destined for
the
same location but can be routed separately, with reorganization into the
original form once all, or most, of the packets have arrived. At each point
of
transmission, an independent decision is made that determines where the
packet
will be routed next. This method of transmission was originally designed to
ensure that military communication was maintained despite the possible
destruction of one or more transmission hubs. The system cannot accommodate
advance directions to designate the precise routing
for the entire transmission over the
Internet. The sender and the receiver can control the routing of packets
over a
limited segment of the Internet, but cannot assign a pre-determined path for
the
entire course of transmission.
[62] Connection between Internet users
who
wish to communicate in one fashion or another, by way of e-mail, chat rooms,
or
web sites, inevitably follows a complex route. There is no direct connection
between the two points seeking to communicate; there is instead a series of
connections running through a succession of distinct components.
[63] The first step in this chain
involves
the establishment of a link with the Internet. The typical Internet
user
(16)
will not have direct access to the Internet and will use a port of entry
supplied by an Internet Service Provider (ISP). To connect through an ISP, a
modem
(17)
must first convert the digital information from the user's computer into
either
analog or digital signals that can be relayed to the ISP. In the vast
majority
of cases, the modem will "dial up" the ISP, establish a connection through
the
local phone switch, and wait for the ISP to answer the call. If the ISP has
an
insufficient number of lines to accommodate their clients, a user, through
their
modem, may experience a "busy signal" and not be able to open up a
connection
with their ISP at the time requested.
[64] If all goes well, the ISP has an
open
line, and their modem will answer the call, set up a connection and convert
the
input back into a format that it can use for transmission over the Internet.
There are alternative means of connecting to an ISP: coaxial cables,
wireless or
satellite connections, but they represent a very small proportion of
connections. At the date of this hearing
(18)
, Mr. Angus estimated that roughly two
to
five percent of the market maintained a connection with their ISP through
means
other than the traditional telephone network. This is consistent with Mr.
Klatt's experience when his company was an ISP. His was the only ISP in
British
Columbia to provide cable connection to residential clients, and no more
than
ten percent of his clients, a sub-set of the total ISP market in B.C.,
availed
themselves of this opportunity.>
[65] Once a connection is established
between a user's computer and their ISP, the ISP provides a further
connection
to the Internet itself. Inside the Internet, a further series of routings is
required before the information arrives at its destination. These links are
made
by a series of high-speed connections on a pathway referred to as the
Internet
backbone, a global network of specialized equipment that directs traffic
over
the Internet. The existence of these multiple steps, using individual
computers
and switching equipment, is what makes it impossible for the sender or
receivers
to pre-determine the route of transmission of data over the Internet. At
each
link, the Internet backbone provider will route the digital packets of
information to another point on its eventual journey to and from the sending
or
receiving ISP and end user.
[66] In Canada the network access
points
and the Internet all run over the same circuits or lines that are used for
telephone activity. Like the commercial reality for users wishing to connect
with their ISP, the overwhelming proportion of links between an ISP and the
Internet backbone, or transmissions among Internet backbone providers use
circuits that are, and were, a part of the global telephone
network.
(iii) The World Wide
Web
[67] The World Wide Web, (the "Web"),
is a
specific application that uses the Internet to send and display data,
including
text, graphics, audio and video. There are two active components on the Web:
a
server that stores and transmits information, and a client or browser that
requests, receives and displays the information obtained from the server. A
"web
site" is a collection of computer files that are coded in a specific
way
(19)
to allow information to be sent on
request
to a browser. The files are then displayed in a way consistent with the
instructions provided by the creator of the web site. Every web site has a
unique Uniform Resource Locator (URL), akin to their Internet address. Once
connected to the Internet, the URL
(20)
is necessary to gain access to a given
web
site
(21).
[68] One of the unique features of the
World Wide Web is the ability to provide a link between one site or
reference
and another. A word, phrase, or graphic image can be used as an activation
point
to call up additional material. HTTP or hyper-link access options are not
confined to material or files within the host web site. A link can be
provided
to other sites designed and controlled by others. This permits a user of a
given
web site to make a selection from the menu of options available on their
current
page displayed from one web site, and request further text, graphics, or
other
information from within the site, or link to a new web site of
interest.
[69] The Tribunal also heard evidence
with
respect to the capacity of an ISP to store or "cache" a commonly requested
site
so that it can immediately be routed to the customer requesting the site.
This
process of caching provides a significant advantage to the ISP who need not
make
repeated requests from a popular host site, using a caching system provides
enormous efficiencies for an ISP. Typically, they will monitor the original
site
for modifications to provide the most current version.
[70] Websites can also be "mirrored",
and
an unrelated individual can post an exact replica of a particular site as a
mirror site. Again, to remain current, these sites must be constantly
updated.
When the Zundelsite was the subject of legal proceedings in Germany, several
mirror sites were established.
B. Analysis: Is Material
Transmitted Via the Internet Communicated Telephonically?
[71] The position advanced by the
Commission is that "communicate telephonically", as used in s. 13(1) of the
CHRA, means to communicate by means of the telephone network. Using this
definition, it is the facilities used for the communication that are
determinative, not the ultimate device connecting an individual to the
network.
[72] It was suggested that this
definition
was compelled by a broad, purposive interpretation of the Act. Moreover, it
was
argued that a more restrictive definition would not allow the Act to be
adapted
to keep pace with technological advancement.
[73] The Respondent, in the course of
the
hearing, submitted that telephonic communication applied to voice or sound
transmission only. Dictionary definitions, the opinion of Mr. Klatt and
related
case law were submitted in support of this interpretation.
(i) Statutory
Interpretation:
Human Rights Legislation To Be Interpreted Purposively
[74] The starting point for any
exercise in
statutory interpretation is recognition of the prevailing rules that have
been
established for the interpretation of human rights legislation
(22).
The courts have consistently held that the Act must be interpreted
purposively
and "in a manner consistent with its overarching goals"
(23).
The Act is thus to be given a large and liberal interpretation: protected
rights
must be interpreted broadly, while defences and exceptions are read
narrowly.
[75] In
Canada (Human Rights Commission) v.
Taylor
(24)
the Supreme Court of Canada considered both the general purpose of the Act,
and,
more specifically, the harm addressed by s. 13(1). Writing for the majority,
Dickson C.J. begins by reference to the general purpose of the Act set out
in
Section 2, and succinctly summarises the legislative intent as "the
promotion of
equal opportunity unhindered by discriminatory practises"
(25).
He then goes on to find that in enacting s. 13, Parliament has expressed the
view that the repeated telephonic communication of "hate messages" is
contrary
to the furtherance of equality
(26).
[76] A review of the report of the
Special
Committee on Hate Propaganda in Canada, also known as the Cohen Committee,
led
Dickson, C.J. to comment as follows:
The Cohen Committee noted that
individuals subjected to racial or religious hatred may suffer substantial
psychological distress, the damaging consequences including a loss of
self-esteem, feelings of anger and outrage and strong pressure to renounce
the
cultural differences that mark them as distinct. This intensely painful
reaction undoubtedly detracts from an individual's ability to, in the
words of
s. 2 of the
Act,
"make for himself or herself the life that he or she is able and wishes to
have". As well, the Committee observed that hate propaganda can operate to
convince listeners, even if subtly, that members of certain racial or
religious groups are inferior. The result may be an increase in acts of
discrimination… and even incidents of violence.
(27)
[77] Dickson, C.J. continued by noting
that
since the release of the Cohen Report, several other studies had similarly
found
that hate propaganda poses a "serious threat to society"
(28),
and he concluded that:
…messages of hate propaganda
undermine
the dignity and self-worth of target groups members and, more generally,
contribute to disharmonious relations among various racial, cultural and
religious
groups, as a result eroding tolerance
and
open-mindedness that must flourish in a multicultural society which is
committed to the idea of equality.
(29)
[78] Thus, when interpreting s. 13(1)
of
the Act, we must bear in mind that in enacting the
Canadian Human Rights Act,
Parliament has recognised the importance of advancing the goals of equality,
and
has legislated specific prohibitions to ensure respect for individual
dignity
and autonomy. Included as a discriminatory practise, is a specific ban on
the
repeated, telephonic communication of "hate messages"
(30).
The promotion of and likely exposure to hatred or contempt, on the basis of
race, religion, sexual orientation or any of the other enumerated grounds
must
be viewed as antithetical to the aims of the Act.
[79] As set out by Dickson, C.J. in
Taylor , the harm
addressed by s. 13(1) has two components. First, the section is responsive
to
the potential impact of hate messages on those listening to them. The Act
therefore, censures theincitement of hatred and the possible actions that
might
flow from the intense emotions of ill will towards others that is
contemplated
by s. 13(1)
(31).
[80] Clearly, when messages are
conveyed
that arouse "unusually strong feelings and deep felt emotions of
detestation,
calumny and vilification"
(32),
they will inevitably undermine efforts to promote equality. Some listeners
might
act upon the message and engage in further acts of discrimination in a
variety
of different settings - employment, housing or the provision of other
services
normally available to the public. By definition, even the listener who does
nothing is nonetheless likely to view the subject of the message with hatred
or
contempt. These negative emotions will in and of themselves represent a step
backwards on the road to equality. Thus, although those who listen to "hate
messages" may or maynot act on the emotions aroused by the communication in
question, the communication creates a barrier to the advancement of social
harmony and tolerance.
[81] The consequences of repeated,
telephonic communication of hate messages has a second element: there is an
independent harm that is visited upon those who are the subject of the
communication. The message might produce fears that it will lead to actual
abuse
or discriminatory practises by those to whom the message is communicated.
Equally important, there is an "intensely painful reaction" experienced by
individuals subjected to the expression of hatred
(33).
The mere fact that they are singled out for recurring, public vilification
can
erode an individual's personal dignity and sense of self-worth. It is not
unlike
being victimised by the school bully. Even if the bully and his or her
friends
do not act on the schoolyard taunts, the victim nonetheless suffers the
public
humiliation, shame and fear that flow from the verbal attack.
(ii) Interpreting s. 13 in
Light of the Harm Addressed
[82] If we are to be guided by a broad,
purposive approach, we must interpret s. 13(1) in a manner that is most
likely
to promote the underlying objectives of the Act. We must be sensitive to the
over arching principles embodied in the Act, and interpret "telephonic" to
foster, not undermine, those objectives.
[83] Ultimately, the focus of the harm
addressed by s. 13(1) is the communication of messages that are likely to
expose
others to hatred or contempt. Given the legislative authority of Parliament
in
enacting this legislation, prohibited communication is necessarily limited
to
telephonic communication, an area within the federal government's sphere of
legislative competence.
[84] In interpreting s. 13(1) of the
Act,
we are of the view that 'telephonically' relates to the means by which a
respondent effects the communication, and not simply the device used by the
listener. It is the use of the telephone network as a means of communicating
hate messages that is paramount; the precise manner in which a recipient
receives the message is incidental to the legislative objective. We would
therefore interpret "to communicate telephonically" by focussing on the
underlying mode or system of transmission.
[85] We are not persuaded that
"telephonically" implies a limitation on the precise sensory format in which
the
communication is expressed, nor that it should be defined solely by
reference to
the particular device used for the communication. Whether a message is
communicated aurally, by voice, or visually, by text, has no effect on its
capacity to influence the listener, or humiliate the subject. Nor does the
specific device used to effect the communication alter the harmful character
of
the message conveyed. A telephone handset is not uniquely effective in the
communication of hate messages.
[86] In our view, moreover, the
interpretation we have adopted is the only form of analysis that can readily
take into account advances in technology, and keep pace with those
developments.
A static interpretation of s. 13(1), where telephonic communication is
restricted to voice transmissions using a conventional telephone device,
would
dramatically reduce the effectiveness of the Act as an aid to the promotion
of
equality.
[87] Finally, an interpretation of
"telephonically" that refers back to the underlying system of transmission
also
respects the legislative authority of the federal Parliament, and defines
telephonic by reference to the limits of Parliament's constitutional
authority.
That an interpretation of "telephonic" should take notice of the limits
imposed
on the federal government by virtue of our constitutional division of
powers,
that is that the Act can only apply to matters over which the federal
government
has legislative authority, is further supported by the specific reference in
s.
13(1) to communication "by means of the facilities of a telecommunication
undertaking within the legislative authority of Parliament". In our view,
the
interpretation that we have adopted is entirely consistent with a purposive
approach to the legislation, and the need to confine the application of the
Act
to matters within the legislative competence of the federal
Parliament.
[88] We are persuaded on the basis of
the
evidence and submissions made to us that to communicate via the Internet is
to
communicate telephonically for the purposes of s. 13(1) of the Act, and
therefore that repeated communication of hate messages via the Internet is
captured by a purposive interpretation of the Act.
(iii) The Internet Operates
Over The Telephone Network
[89] The evidence before us inexorably
leads us to the conclusion that the transmission of data or communication on
the
Internet operates over the telephone network. The structural components
required
for transmissions are those owned and operated by the telephone networks.
These
systems were originally designed for voice or sound communication, but over
time
have evolved into a transmission system for a variety of different signals,
including the communication of data, text or graphics. The current
commercial
reality in Canada is that most links between an individual user and their
ISP,
the ISP and the Internet backbone, and transmissions among Internet backbone
providers, will all be by use of the telephone network.
[90] The Internet is an organized
method of
transferring files and information utilizing an elaborate process for
communication among computers and other devices. Conceptually, it is a
virtual
not a physical thing. However, in order to apply the rules and effect actual
communication, the Internet relies on existing networks for the transmission
of
data. Overwhelmingly, it is the physical components of the traditional
telephone
network that are used to provide connectivity between different points on
the
Internet
(34).
The circuits and switches used for Internet transmission are identical to
those
that comprise the original telephone network. Some transmission elements, in
some instances may bypass the telephone network, but for all intents and
purposes, it is the telephone network that carries Internet communication.
[91] The expanded capacity of the
telephone
network to allow communication beyond sound, does not, in our view alter the
underlying structure that is used to effect the communication. Indeed, the
steps
required to effect an Internet or Web communication, are strikingly similar
to
those involved in traditional telephone communication. With the aid of a
modem,
a user dials up their ISP, a modem at the ISP will answer the call, and the
information requested by the user will be transmitted over the Internet
backbone
to and from the requested Website. As we have already concluded,
communication
over the Internet inevitably uses the identical circuits, switches and
related
physical components used for conventional telephone activity.
[92] Although some of the communication
links might be by way of alternative means of transmission, such as coaxial
cable, satellite or wireless connections, we do not believe that that has
any
effect on whether the communication should be considered 'telephonic'. The
protocols and standards that define the Internet make it impossible to
designate
a transmission route that entirely bypasses the telephone network. An
essential
characteristic of how the Internet operates involves the independent routing
of
individual packets over a series of connections; at each stage a new
decision is
made as to which route to take next. Since we have found that transmissions
over
the Internet backbone invariably operate over the telephone network, routing
over the Internet backbone, which cannot be controlled, will thus always
involve
telephonic communication.
(iv) Telephonic
Communication
Not Restricted to Voice Communication
[93] Nor did the Respondent persuade us
that to communicate "telephonically" is restricted to voice communication.
In
our view this is an unduly restrictive approach that is inconsistent with a
purposive approach to statutory interpretation, fails to allow for advances
in
technology, and does not adequately address the preponderance of evidence in
this case.
[94] Technological evolution has
extended
the limits of original telephony and blurred the lines of demarcation so
that it
is no longer accurate or always possible to restrict telephonic uses to the
transmission of sound to and from a conventional telephone. Even at its most
narrow construction, the modern reality of telephonic communication may not
involve a "telephone" at all but may include electronic audio messages sent
from
one computer terminal to a voice mail system operated by another computer.
Nor
will it always consist of the transmission of sound, for example the use of
Telephone Devices for the Deaf involves the display of text to permit the
hearing-impaired to use a phone. We would be loath to accept a submission
that
leads to a construction of s.13 (1) that failed to take into account these
modern realities.
[95] We are especially concerned about
an
unduly narrow interpretation of telephonic at a time of dramatic shifts in
the
use of different modes of communication. The pervasiveness of the Internet
persuades us that this mode of communicating hate messages is most
pernicious.
All of the reasons suggested in
Taylor, with respect to the
effectiveness of the telephone as a means of arousing hatred apply with
equal
force to the Internet: a public means of communication is used, yet the
listener
enjoys direct, seemingly personal contact in relative privacy.
(35)
[96] While a website can establish
hyper
links to other sites that express contrary views or arguments, as was indeed
done on the Zundelsite, there was no evidence before us with respect to the
likelihood that these links would be activated. Moreover, the hyper links do
not
have to be maintained, and would require the listener to take an active step
in
order to be presented with an alternative view. In any event, any
information or
argument presented on a linked site will undoubtedly be coloured by the
material
read on the first website. For all of these reasons, we do not feel that the
presence of a hyper link provides a sufficient basis to distinguish
traditional
messages left on a pre-recorded answering device from messages left on an
established Website.
[97] What does make the Internet a
potentially more significant threat to the goals of the Act is the ease with
which this material can be communicated, and the amount of information that
can
be conveyed. Search engines will respond to word or subject searches, and
anyone
who is interested can dial up the site at will. Once the Website is
established,
very little effort is required to send or receive the communication. Nor
does
the operation of the site depend on publication of a number or web address.
Once
at the site, significantly more information can be communicated than could
have
been left on a pre-recorded telephone message.
[98] We appreciate that the Supreme
Court
of Canada in Taylor
focussed their analysis on the use of a telephone answering machine to
deliver pre-recorded messages. There is nothing in that decision, however,
that
in our view restricts the application of s. 13 (1) to such devices. As we
have
already determined, the guiding principles outlined in the majority judgment
in
Taylor provide
support for the conclusion that we have now reached regarding the issues of
statutory interpretation raised in this complaint. It still remains for us
to
address this conclusion within the context of the constitutional motion
presented by the Respondent.
[99] Mr. Christie also advanced argumen
ts
during a preliminary motion to dismiss the complaints that relied upon a
number
of cases in which "telephonic" was distinguished from
"electronic"
(36).
We did not deal with these arguments at the preliminary motion as we
considered
them premature; it is appropriate to deal with them now. In the taxation
cases
cited to us, the relevant statute distinguished between electronic data
processing machines and electric telephone apparatus. Not surprisingly, the
Court in both cases held that computerized business communication systems,
modems, and other peripherals of computers were properly classified as
electronics not telephones.
[100] On a purposive analysis these
cases
do not provide great assistance to us. The court had to determine what the
appropriate level of taxation was for each device, based on a "tariff whose
purpose was to distinguish between hundreds of technical items"
(37).
Different categories were established by express reference to the kind of
device
or equipment that was being considered. Given the purpose of that statute,
it
was necessary that the definition relate back to the kind of device at
issue,
not the manner of transmission. These cases do not alter our view that in
interpreting s. 13(1) of the
Canadian Human
Rights Act, the relevant
reference
is to the communication of hate messages, and therefore it is the means of
transmission, not the device per se that is relevant.
(v) Expert Evidence and
Dictionary Definitions
[101] Mr. Christie also relied on
dictionary definitions, and the expert evidence of Mr. Klatt to advance his
position. We have already recounted the expert evidence and opinions
provided by
Mr. Klatt and Mr. Angus. These expert witnesses did not agree on a
definition of "telephonic", the main point of divergence was whether
telephonic
communication extends beyond the transmission of sound to include the
transmission of data. Both agreed that there is a specific application known
as
Internet telephony that allows users to take advantage of the Internet to
conduct real time, audio communications. Telephone calls are placed via the
Internet to allow the participants to bypass the operation of normal fees
and
charges. Neither witness, however, offered a shared or common definition of
'telephonic'.
[102] Mr. Angus defined telephonic
broadly
as the transmission at a distance of a wide range of signals including
sound,
data, video or graphic transmissions. Mr. Klatt on the other hand was
adamant in
his insistence that the accepted definition of telephony, and telephonic,
was
limited to the transmission of voice or other sound.
[103] Where the Tribunal must choose
between conflicting evidence given by these two witnesses, we have no
hesitation
in concluding that Mr. Angus provided expert testimony that was more
informative
and reliable. The evidence of Mr. Bernard Klatt was of very limited
assistance
to us. Mr. Klatt demonstrated an extremely shallow foundation of knowledge
in
his area of expertise during the course of his testimony. A series of
dictionary
definitions were put to him, many of which he acknowledged he had not seen
before his preparation for this hearing. From the Tribunal's perspective, he
seemed unable to provide much information independent of the written
materials
placed before him by Mr. Christie.
[104] During
cross-examination,
Mr. Klatt was frequently argumentative, evasive and unable to answer
elementary
questions in his field. Most troubling to the Tribunal was the extent to
which
this witness responded as an advocate for the Respondent and not as an
objective, independent expert. Mr. Klatt's responses are replete with
references to what "we are arguing", and similar allusions to his shared
common
cause with the Respondent.
[105] In contrast to the evidence
offered
by Mr. Klatt, the testimony of Mr. Angus was given in a manner that was
thorough, direct and well considered. In light of the limitations noted in
Mr.
Klatt's evidence, the Tribunal prefers the evidence of Mr. Angus where the
evidence of these experts conflicts.
[106] Notwithstanding our finding on
the
relative utility of the expert evidence, ultimately, the statutory meaning
of
'telephonic' is an issue for this Tribunal to determine based on the
evidence,
the submissions of the parties, and the proper application of the governing
legal principles. The opinion of an expert in telecommunications, or the
dictionary definitions submitted to these experts can do no more than
provide a
technical definition. Considering the pace of technological change, the
dictionary definitions provided by the parties really did little more than
provide a glimpse through a rear view mirror of the state of communication
technology. Given our task of interpreting 'telephonically' within the
specific
context of s. 13 (1) of the Act, we found the dictionary definitions offered
in
the course of this hearing to be of very limited utility. Although of some
value, they are far from determinative.
[107] The approach that we have taken,
emphasising a purposive approach to the interpretation of s. 13(1), is
consistent with the comments of Justice Evans of the Federal Court, Trial
Division in
">Zündel
v. Canada (Attorney
General). Although Justice Evans was only determining whether there was
a
rational basis for the conclusion that telephonic communication could
include
Internet transmission, he did comment on the value of the dictionary
definitions
provided to him, and to us:
Dictionaries, no doubt, still have
their
place in assisting in the interpretation of statutory language,
particularly
in identifying the range of meanings that words are capable of bearing in
the
ordinary use of the English language. However, it is a place of
diminishing
importance, as courts have increasingly sought to attribute meaning to the
text of legislation by placing more weight on the statutory context in
which
the words are used, and the purposes underlying the legislative
scheme.
(38)
2) Is the Zundelsite Communicated in
Whole or in Part by Means of the Facilities of a Telecommunication
Undertaking
Within the Legislative
Authority of
Parliament?
[108] We have already concluded that
the
Internet uses the telephone network to transmit data. On the evidence before
us
we are also satisfied that when the telephone network is used for Internet
communication it is "by means of the facilities of a telecommunication
undertaking within the legislative authority of Parliament".
[109] In arriving at this conclusion,
we
have taken into account the possibility of Internet connections by
alternative
means, including cable, satellite, or wireless connections. In some
geographic
locations, it is arguably possible that the initial connections could be
made
without using the physical components of the telephone network, and that the
connection point to the Internet backbone could be completed outside of
Canada.
In a highly theoretical sense it is conceivable that a user in Canada might
be
able to access the Zundelsite without using "the facilities of a
telecommunication undertaking within the legislative authority of
Parliament".
[110] The Respondent's expert
acknowledged
that this was offered as a theoretical possibility, and was unable to
provide
substantive details. Notwithstanding this hypothetical scenario, there was
no
evidence before us that this scenario has actually occurred, and on the
evidence
that we did receive, we would find this possibility to be remote in the
extreme.
The vast majority of Internet users in Canada access the Internet by
conventional telephone 'dial up': they link up with their Internet Service
Provider by phone line, the ISP uses the phone lines to link with the
Internet
backbone, and those links are virtually all made within Canada. Although
there
may be some part of the Canadian user's connection to the Internet routing
that
takes place on extra territorial facilities, we would note that on the
language
used in S. 13(1) the communication need only be communicated "in whole or in
part" on a federally regulated telecommunication undertaking
(39).
3) Was There Repeated
Communication 'Caused' by the Respondent?
[111] We would note that the issue of
whether or not the posting of material to the Zundelsite constituted
"repeated"
telephonic communication was not raised during the course of the hearing.
There
was considerable attention given to whether or not it was "telephonic"
communication, but there seemed to be little dispute that there had been
repeated communication.
[112] The requirement that there be
repeated communication is a constituent element of s. 13 (1), and we find as
a
fact that there was repeated communication of the material posted to the
Zundelsite. We heard from a number of witnesses, including Mayor Barbara
Hall,
Ian Angus, and Carl Hamilton that they accessed the material in issue on the
Zundelsite on a number of separate occasions.
[113] We would also observe that the
very
nature of the Internet makes 'repeated' communication inevitable and
deliberate.
The evidence regarding the World Wide Web establishes that it is a specific
application designed to enable the transmission and display of text,
graphics,
audio or video files over the Internet. This technology was calculated to
facilitate browsing and the repeated transmission of material posted on a
chosen
site. A key advantage of the Internet is that it provides an inexpensive
means
of mass distribution. We are thus satisfied that there was repeated
communication from the Zundelsite.
[114] During examination in chief of
the
Respondent's expert, Mr. Bernard Klatt, it was suggested that the Website is
passive, and the one who causes the communication is the user. That is,
material
may be posted to a site and available for transmission, however, it is the
browser who requests the information and thereby 'causes' the
communication.
[115] We see no difference between this
description of causing to communicate and that which occurs when someone
dials a
telephone number and listens to a pre-recorded message. In both instances
the
message waits dormant until activated by the phone connection, however, it
would
strain the meaning of the Act to find that to "communicate telephonically or
to
cause to be so communicated" should focus on the receiver rather than the
sender
of the proscribed messages. As we have already concluded, the intent of s.
13(1)
of the Act is to prevent the dissemination of hate messages. This objective
can
not be achieved with the construction advanced by the Respondent.
[116] In this case, the sole purpose of
creating a Website and encoding with commonly understood protocols is so
that it
will be available for transmission and display by a user who requests it. In
our
view, this does not mean that the communication was "caused" by the user.
The
person or persons who design and control the Website are ultimately those
who
make available to others material to be communicated to them.
4. Finding
[117] Having considered all of the
evidence
and submissions of the parties, we find that, when it was transmitted via
the
Internet, the material on the Zundelsite was communicated telephonically,
repeatedly, in whole or in part by means of the facilities of a
telecommunication undertaking within the legislative authority of
Parliament.
1. Is the
Material Likely to Expose a Person or Persons to Hatred or Contempt?
A. Evidence
(i)
Documents
[118] The Commission submitted a
compendium
of documents that contained copies of the material downloaded from the
Zundelsite
(40).
The documents were voluminous, and too extensive to set out in full or
attach as
an appendix. They do, however, form part of the record and can be easily
summarised. The documents essentially fall into one of two categories: quasi
scholarly articles questioning the factual accuracy of the
holocaust
(41),
and direct communications in which Mr. Zündel or his followers express their
personal opinions and set out their ongoing experiences as holocaust
revisionists
(42).
[119] Certain recurring themes were
common
to all of the documents. The primary theme relates to the events of the
Second
World War, and the expression of doubt concerning the accuracy of the
prevailing
view regarding the treatment of the Jews by the Germans. Accompanying these
challenges is the assertion that Jews, individually and collectively, have
deliberately promoted a false version of history in order to gain a personal
benefit by way of reparations.
[120] Many of the documents, in
particular
the Power Letters and ZGrams found on the site, contain some relatively
benign
commentary on a wide variety of issues related to Mr. Zündel's day to day
life.
Inevitably, they also incorporate the themes referred to above. The
following
examples of the commentary communicated via the Zundelsite were taken from a
number of different messages authored by Mr. Zündel:
a) To claim that World War II was
fought
by the Germans, as the Holocaust Promotion Lobby incessantly claims, just
to
kill off the Jews as a group, is a deliberately planned, systematic
deception
amounting to financial, political, emotional and spiritual extortion. The
"Holocaust", first propagandized as a tragedy, has over time deteriorated
into
a racket cloaked in the tenets of a new temporal religion - …
(43)
b) The German State is like a big
insurance company who, without proper and forensic investigation,
negligently
and carelessly settled a claim about "Holocaust causalities" solely on the
basis of perjured evidence of alleged "eye witnesses" and who accepted
their
cooked evidence, forged invoices and fudged proofs of losses.
…
The problem is, very simply, that the
German oligarchy and the Jewish/Zionist/Marxist racketeers who have conned
the
Germans, the Americans and, for that matter, the whole world with their
Holocaust extortion scheme, are both dependent for their own survival on
the
non-exposure of this fraudulent, parasitic enterprise.
(44)
c) The enemies of freedom,
civilisation,
culture and our race, so clearly and courageously identified by Germany's
government from 1933-45, are still at war with us - all those of us, be
they
German, Canadian, American, Russian, British, French, Italian, etc. who
defend
and who want to protect Western civilisation from Judaization and mental
and
spiritual circumcision of all we hold dear. Our enemies are relentless in
their destructive drive. They know what is at stake!
(45)
d) The fact is that the Jewish
Lobby - or
the Israeli Lobby, as some like to call it - have long had a deliberate
policy
of lying to non- Jewish Americans. They lied to us about Hitler and about
National Socialist Germany, because they wanted America to go to war with
Hitler to destroy this threat to their schemes. They have lied to us about
their own role in setting up the Communist conspiracy, which spread out of
London and New York to Russia and from there to other countries until it
engulfed half the earth and consumed tens of millions of human lives. And
they
have lied to us about a great number of other things, too - including
their
most infamous lie and the most lucrative and crooked scheme: the so-called
"Holocaust".
(46)
e) There is always that last straw
that
breaks the camel's back!
The pattern has been the same from
the
Weimar Republic, where Jewish elements had immense power, to various
Bolshevik
countries where they lost their near-total power because of their own
excesses, to Clinton's grotesque and disproportionate Cabinet
appointments,
where Jews - who represent only 5% of the U.S. people, if you believe
those
fudged statistics which hide all those "Holocaust survivors" - make up 50%
of
the Clinton Cabinet and other appointments. By deduction this can only
lead
people to conclude that, with the exception of this small tribal group,
the
rest of American citizens are seen as incompetent or stupid and unworthy
to
hold Cabinet posts!
Do they like it? Of course not! My
American friends tell me that America is seething with resentment! In
Canada,
the power of the tribe is more hidden and not as brazen. However, few who
still think are fooled.
I predict that once again the tribe's
near-total victory will end in near-global disaster for them. In the
affairs
of men, and in nature, NOTHING LASTS FOREVER.
(47)
And, finally:
f) Until now, the "Holocaust" story
and
their stranglehold on the media in many parts of the world have made them
immune, so far, from exposure - but now their defenses are crumbling, for
every day brings to light more misdeeds, more con games, more insider
trading,
more lies and more cheating - and more crimes against the Germans, the
Palestinians, the Lebanese, the Iraqis, and the hapless Russians during
their
Bolshevik reign of terror and destruction there.
The day of global reckoning is
dawning.
The Jewish Century is drawing to a close. The Age of Truth is waiting to
be
ushered in, we will be its ushers.
I thank you!
Ernst Zündel
(48)
(ii) Commission Experts:
Professors
Prideaux and Schweitzer
[121] The Commission called two expert
witnesses
(49), Professors Prideaux and Schweitzer, to support their submission
that
this material was likely to expose Jews to hatred or contempt. In both cases
the
witnesses examined the documents found on the Zundelsite and analysed them
from
the perspective of their particular area of expertise. The representative
passages quoted in the preceding section display many of the stereotypes and
linguistic strategies discussed by the expert witnesses called by the
Commission.
a) Professor Prideaux:
Discourse Analysis
[122] Professor Gary Prideaux testified
as
an expert in the field of discourse analysis, a sub set of linguistics. In
this
discipline, written and oral texts are examined in order to identify the
methods
employed by the initiator and the recipient of the communication for
processing
and comprehending language. A specific text is interpreted, or given
meaning,
through the use of established linguistic principles of general application,
and
specific strategies used to shade the meaning of otherwise neutral
references.
An understanding of these general principles and rhetorical strategies,
allows
for the interpretation of text, and a determination of the likely impact of
the
communication.
[123] Dr. Prideaux outlined a number of
specific ways in which meaning permeates an intended message and allows the
recipient to make sense of what they have heard or read:
a) Specific techniques, such as
generalization or the use of scare quotes, can inject an additional layer
of
content beyond the obvious;
b) The choice of vocabulary can
reflect
the author's view of a particular group or event;
c) The use of repetition may enhance
the
credibility of the author or persuade the audience of the veracity of a
particular fact or assertion;
d) A particular group may be singled
out
or targeted;
e) Coding and the use of metaphor can
establish a series of negative associations and interchangeable references
or
associations;
f) Inversion strategies where
commonly
held views are inverted, so that for example the traditional victim
becomes
the aggressor and the aggressor the victim;
g) Metonymy or extreme generalization
ascribing negative characteristics to a broad range of behaviour or group
of
individuals based on an individual action or example.
[124] Based on these and other
established
principles of discourse analysis, Dr. Prideaux analysed the structure,
content
and likely effect of the documents found on the Zundelsite, and concluded
that,
in his opinion, they were likely to expose Jews to hatred and contempt. The
documents revealed a repeated pattern of singling out Jews, and ascribing
extremely negative characteristics to them as a group and as individuals.
This
witness provided numerous examples where different rhetorical strategies
were
employed to characterize Jews in a distinctly derogatory manner.
[125] A common strategy identified by
this
expert was the manner in which questions were raised regarding the existence
or
extent of the holocaust. Three quasi scholarly articles included in the
materials, 'Jewish Soap', '66 Questions and Answers', and 'Did Six Million
Really Die', were treated by Dr. Prideaux as 'framing documents' that
provided a context and frame of reference for many of the other documents
found
on the site. In these texts, the authors lead the reader to question all
aspects
of the holocaust by raising doubts about some. The subtle message is that
the
"holocaust' itself is questionable, and in Professor Prideaux's view, the
impact
of raising these doubts would, at a minimum, be to vastly diminish the
horror of
these events.
[126] Dr. Prideaux described these
texts as
'unabashedly polemical', where the authors used lurid and inflammatory terms
that would not typically appear in conventional scholarship. There were no
specific citations or references for factual, or historical references, and
assertions were made that went beyond the logical extension of the material
relied upon. Nonetheless, the academic tone of these documents lends an air
of
legitimacy to these documents and informs the context in which subsequent
messages are communicated.
[127] Dr. Prideaux further testified to
other specific examples
(50) in
the texts found on the Zundelsite that would expose Jews to hatred or
contempt:
a. The use of epithets such as the
'Jewish', 'Holocaust', 'Zionist' or 'Marxist' Lobby;
b. The constant use of scare quotes
to
express doubts in regard to the "Holocaust" or "survivors";
c. Unsubstantiated assertions of
Jewish
control and influence;
d. Inversion strategies where those
widely understood as the victims in Nazi Germany become the aggressors,
and
the aggressors become the victims;
e. Ascribing, or implying, negative
attributes to all Jews upon reference to a single individual who it is
asserted possesses those
characteristics. [128] Finally, Dr Prideaux
expressed his opinion that the deleterious impact of the documents contained
on
the Zundelsite would be significant upon both the communication of a single
document, and as a result of the cumulative effect of reading many or all of
the
documents on the site.
b) Professor Schweitzer:
Historical Motifs in Anti-Semitism
[129] Professor Frederick Schweitzer,
an
historian at Manhattan College in New York City, was called as an expert in
the
field of anti-Semitism and Jewish-Christian relations. Dr. Schweitzer
provided
an historical overview of the themes in classical anti-Semitism, and
testified
to the history of violence against Jews and the relationship of these
violent
episodes to specific periods of historical anti-Semitism.
[130] Dr. Schweitzer discussed the many
themes, and variations on themes, of anti-Semitism dating back to medieval
times
up to the modern period. Certain central motifs have appeared, and
reappeared in
more contemporary forms, which expressed very specific
stereotypes:
a) the deicidal Jew, the murderer of
Christ;
b) the Talmudic Jew, obligated by
religion to harm, cheat, lie, and trick non Jews;
c) the criminal Jew;
d) the world domination
Jew;
e) the Holocaust Jew. [131] When Dr. Schweitzer
examined
the documents found on the Zundelsite, he concluded that they were
'virulently
anti-Semitic', reflecting many of the classical anti-Semitic motifs found
throughout history. Specifically, the Tribunal was referred to the following
examples taken from the Zundelsite material:
a) Jews are denounced as criminals,
thugs, gangsters and racketeers;
b) Jews are repeatedly described as
liars
who have fabricated the biggest lie of all, the "Holocaust", in order to
extort reparations and promote their personal interests;
c) Jews have, and seek, a
disproportionate degree of power and control in the media and
government;
d) Jews are responsible for the
humiliation of the Germans;
e) Jews are parasites and pose a
menace
to the civilised world.
B.
ANALYSIS
(i) Legal Test:
s.13(1)
[132] Telephonic communication
of
hate messages is proscribed under the Act as a discriminatory practise if
there
is repeated communication of "any matter that is likely to expose a person
or
persons to hatred or contempt by reason of the fact that that person or
those
persons are identifiable on the basis of a prohibited ground of
discrimination."
[133] We have already
concluded
that there has been repeated telephonic communication. The issue now under
consideration is whether the material communicated is 'likely to expose' a
person or group to hatred or contempt. The cases in which this section has
been
considered, and the plain language used in s. 13(1), make it clear that it
need
not be established that hatred or contempt will be, or has been aroused by
the
communication at issue. It must only be established on a balance of
probabilities that a person or a group is likely to be exposed to these
extreme
emotions of hostility.
[134] For our purposes, it is
sufficient if the communications at issue create conditions that allow
hatred to
flourish, leaving the identifiable group open or vulnerable to extreme ill
will
and hostility. We must determine whether members of a group are placed at
risk
of being hated, or being held in contempt by virtue of the messages
communicated
by the Respondent.
(51)
(ii) Definition of
'Hatred' or 'Contempt'
[135] In Taylor, the Supreme
Court
of Canada cited with approval the definition of "hatred" and "contempt"
provided
by the Tribunal in Nealy v. Johnson
(52):
With "hatred" the focus is a set of
emotions and feelings which involve extreme ill will towards another
person or
group of persons. To say that one "hates" another means in effect that one
finds no redeeming qualities in the latter. It is a term, however, which
does
not necessarily involve the mental process of "looking down" on another or
others. It is quite possible to "hate" someone who one feels is superior
to
one in intelligence, wealth, or power. None of the synonyms used in the
dictionary definition for "hatred" give any clues to the motivation for
the
ill will. "Contempt" is by contrast a term which suggests a mental process
of
"looking down" upon or treating as inferior the object of one's
feelings.
[136] After referring to the Tribunal's
interpretation of s. 13(1) of the Act, Chief Justice Dickson summarised the
application of this section as pertaining to communication that was likely
to
arouse "unusually strong and deep-felt emotions of detestation, calumny or
vilification"
(53).
Based on this definition, we must examine the material found on the
Zundelsite
to assess whether it is likely that an identifiable group will be subject to
hatred, that is extreme ill will, detestation, enmity, or malevolence. Or,
might
the group be held in contempt, and looked down upon or treated as inferior.
(iii) Are These
Materials
Likely to Arouse "Unusually Strong Emotions of Detestation, Calumny or
Malevolence"?
[137] We begin our analysis
with a
review of the material found on the Zundelsite, and the intertwining themes
of
its messages. The over arching theme found in these materials is an
unrelenting
questioning of the "truth" related to the extent of the persecution of Jews
by
Nazi Germany during the second World War. Virtually every aspect of the
holocaust is challenged: the numbers of those who died, how and why they
died,
and the reliability of the accounts of witnesses, survivors, confessors and
the
perished. Aspersions are cast on the legitimacy of post war legal and
historical
analysis, and doubts are raised regarding the veracity of a myriad of
details
related to the experience of Jews at this time.
[138] A secondary theme, closely
related to
the first, is the assertion that the truth needs to be revealed, but that
those
who profit from the commonly held view of the holocaust have thwarted this
goal.
There are repeated references to the individual and collective benefits that
the
Jewish peoples and Israel have realised from their continued promotion of
the
'holocaust story'.
[139] In levelling these charges, Jews
are
branded as liars, swindlers, racketeers and extortionists They are accused
of
wielding extraordinary power and control, all used only for their own
advantage
and to the great detriment of others. Jews are described as criminals and
parasites, acting on a global level to elevate their own power and wealth.
Jewish people are viciously targeted in the Zundelsite material on the basis
of
their religious and cultural associations.
[140] The messages conveyed in these
documents carry very specific assertions regarding the character and
behaviour
of Jews, none of it good. Jews are vilified in the most rabid and extreme
manner, permitting, in our view, of "no redeeming qualities". Given our
reading
of the material communicated via the Zundelsite, we are satisfied that the
test
set out in Nealy,
and
approved in
">Taylor,
has been met. In our judgment, these messages create an environment in which
it
is likely that Jews will be exposed to extreme emotions of detestation and
vilification. Based on our view that the Zundelsite materials characterize
Jews
as 'liars, cheats, criminals and thugs' who have deliberately engaged in a
monumental fraud designed to extort funds, we regard it as highly likely
that
readers of these materials will, at a minimum, hold Jews in very low regard,
viewing them either with contempt, scorn and disdain, or hatred, loathing
and
revulsion.
[141] The expert evidence of Drs.
Prideaux
and Schweitzer reinforces our view that the material found on the Zundelsite
is
likely to expose Jews to hatred or contempt. The evidence of Dr. Prideaux
and
the use of specific rhetorical strategies to target and degrade Jews support
our
own interpretation of the Zundelsite documents. Professor Prideaux provided
a
number of detailed examples to support his own expert opinion that the
material
found on the Zundelsite was likely to expose Jews to hatred and contempt. We
also note the striking similarities between the references found in the
Zundelsite material and the classical motifs of anti-Semitism described by
Dr.
Schweitzer. Although we have found the expert evidence to be helpful,
ultimately, it is the language used in the documents themselves that
persuades
us that this material offends s. 13(1) of the Act. The tone and expression
of
these messages is so malevolent in its depiction of Jews, that we find them
to
be hate messages within the meaning of the Act.
[142] In arriving at our conclusion we
have
reviewed the Exhibits in HR-2 in their entirety. Undoubtedly there are
considerable portions of the text found in the Zundelsite materials that,
absent
other references, would not be elevated to the extreme ill will contemplated
by
s. 13. However, when read together, as we believe it must be, we have no
doubt
that the messages communicated by the Zundelsite are likely to expose Jews
to
hatred and contempt. The echoes of hatred that reverberate throughout the
site
infect and taint virtually all of the documents put before us.
[143] At one stage of the proceedings,
counsel for the Respondent suggested that if the documents found on the
Zundelsite were likely to expose a person or group to hatred or contempt, it
was
not by reason that they were identifiable on the basis of a prohibited
ground of
discrimination, but rather, as a direct consequence of their own behaviour.
That
is, the Zundelsite only describes the "misbehaviour" of Jews, and any ill
will
that is aroused is solely as a result of what Jewish people have done, and
is
not by reason of the communication of those facts.
[144] The Tribunal dismissed this
suggestion in an earlier ruling, and, this argument, in our view, merits
very
little attention. Once a person or group is identified, directly or
indirectly,
on the basis of a prohibited ground of discrimination, it is somewhat
disingenuous, and contrary to the objectives of the Act, to say that it is
their
behaviour and not their group membership that exposes them to hatred or
contempt.
[145] In any event, the only evidence
before us was that of Dr. Prideaux who testified that it was the
communication,
and the manner in which the messages were constructed, that would likely
expose
Jews to hatred and contempt. There was no contrary evidence on this point,
nor
is there any other decision or canon of construction that would support this
argument. We would find that the communications in question are likely to
expose
a person or group of persons to hatred or contempt on the sole basis that
they
are identified by their religious affiliation and ancestry.
2. The Context in Which the
Documents on the Zundelsite are Communicated: The Characterization of the
Zundelsite as Part of an Ongoing Historical Debate.
[146] Throughout the hearing Mr.
Christie
led evidence and advanced arguments to establish that the material found on
the
Zundelsite was the healthy expression of one perspective in an ongoing
historical debate. We were urged to regard this debate, and inform our
decision,
by the Charter values that accord the greatest value to the promotion and
protection of free speech. We will deal in a subsequent part of this
decision
with the Respondent's Constitutional motion; however, we were also invited
to
apply s. 13(1) to the facts of this case in light of this
submission.
[147] In aid of this
argument
(54),
the Respondent called a series of fact witnesses
(55),
and an expert witness qualified to testify on the Revisionist community.
Frank
Schmidt, Christian Klein, Wolfgang Mueller and Karl Rupert, were all born in
Germany and emigrated to Canada at various times both before and after the
Second World War: Mr. Schmidt in 1933, Mr. Klein in 1955, Mr. Mueller in
1956,
and Mr. Rupert in 1956. All of these individuals testified to their
active
participation in various German Canadian ethnic and cultural organisations.
Mr.
Rupert also testified to his experience as a Russian prisoner of war from
1945-1949.
[148] The general thrust of
the
evidence of these fact witnesses was the same: they described, from their
perspective, the persecution of Germans and the negative stereotyping that
Germans have suffered since the Second World War. People in both the German
and
'revisionist' community are silenced by
fear and so dare not question the
conventional version of events. In particular, these witnesses felt
humiliated
and ostracized as a result of the commonly held beliefs regarding Germany's
treatment of Jews during the Second World War.
[149] The expert evidence of
Mark
Weber is virtually identical to that of the 'fact' witnesses. Although
tendered
as an expert, Mr. Weber repeatedly stated that "he couldn't speak for the
community" and was only offering his own perspective. In any event, his
testimony was offered to adduce evidence of the context in which the
'revisionist' community operates.
[150] Revisionists define
themselves and the field of holocaust revisionism by reference to their
critique
of conventional or official history. In Mr. Weber's view, revisionists play
an
important role in historical discourse. Their writing and research should be
seen as part of a larger debate, and is to be credited with generating a
mainstream historical response. In his view, revisionism is similar to any
intellectual exchange and is merely at one end of a continuum of historical
perspective.
[151] Mr. Weber further
testified
that many revisionists experience rejection, violence and social disapproval
for
expressing their views. He personally would never deny that Jews suffered
during
the Second World War; he does however doubt some aspects of what he regards
as
the official or conventional version of the holocaust. He would not describe
Mr.
Zündel as an historian but as a facilitator of discussion.
[152] Having considered this
evidence, and the submissions of counsel during the course of the hearing,
we
cannot accept the suggestion that the material found on the Zundelsite is
merely
part of a legitimate debate, and is therefore immune from the normal
application
and interpretation of s. 13 (1) of the Act. Indeed, in our view, it begs the
question to simply ask if this expression is part of a larger 'legitimate'
debate. Legitimacy, in the context of s. 13 (1) of the Act, has been
determined
by Parliament as that which is not likely to expose individuals to hatred or
contempt.
[153] In any event, even if we
accept that there can be legitimate debate on this topic, we have focussed
on
the manner in which the Respondent has expressed his views and not the mere
fact
that he chooses to engage in this debate. Our conclusion is based on the way
in
which these doubts are expressed, and not on the fact that challenges are
raised
regarding the historical accuracy of these events. Although it might always
be
hurtful to raise these questions, we accept that the standard for
determining
the "promotion of hatred or contempt" must be applied with care so that it
remains sensitive to free speech interests.
[154] If this truly were a
neutrally worded, "academic" debate, our analysis might be quite different.
The
tone and extreme denigration of Jews, however, separates these documents
from
those that might be permissible. We have found that it is the linkage
between
the author's view of these events and the extreme vilification of Jews as a
consequence: it is their denunciation as liars, racketeers, extortionists
and
frauds that is likely to expose them to hatred and contempt.
3.
Finding
[155] Based on our review of
the
documents downloaded from the Zundelsite, and the expert evidence of
Professors
Prideaux and Schweitzer, we find that the material contained in Exhibit HR-2
is
likely to expose a person or group of persons to hatred or contempt by
reason of
the fact that those persons are identifiable on the basis of a prohibited
ground
of discrimination.
[156] Once again the constitutionality
of
s. 13(1) of the Canadian Human Rights Act emerges in the context of
the
facts in the case before us. The Respondent has placed it pointedly in issue
in
a motion under s. 52 of the Constitution Act, (1982) in which he
seeks
an order declaring s. 13(1) of the Canadian Human Rights Act
unconstitutional by virtue of s. 2(b) of the Charter. The
Respondent
also seeks a declaratory order with respect to s. 13(1) based on a violation
of
s. 2(a) and s. 7 of the Charter.
[157] Constitutional protection of
freedom
of expression is a fundamental element of a democratic society. In a
democracy,
political speech may not be controlled except in circumstances where not to
do
so runs counter to core democratic values. As stated by Professor Hogg,
Perhaps the most powerful rationale
for
the constitutional protection of freedom of expression is its role as an
instrument of democratic government. This rationale was well expressed by
Rand
J. in Switzman v. Elbling, [1957] when he said that parliamentary
government was "ultimately government by the free public opinion of an
open
society" and that it demanded the condition of a virtually unobstructed
access
to the diffusion of ideas.
(56)
A. The Canadian
Charter Of Rights and Freedoms
[158] The Charter of Rights and
Freedoms protects and guarantees the fundamental freedom of
expression.
i) Section
2
[159] Everyone has the following
fundamental freedoms:
(b) freedom of thought, belief,
opinion
and expression, including freedom of the press and other media of
communication.
[160] The Supreme Court of Canada in
recent
years has once again affirmed the guaranteed right of all Canadians to
freedom
of expression as an important and essential attribute of a free and
democratic
society. In Dagenais v. CBC
(57),
Lamer C.J. quoted Cory J. in
Edmonton Journal v. Alberta
(Attorney
General, [1989] 2 S.C.R. 1326, at pp. 1336-37,
It is difficult to imagine a
guaranteed
right more important to a democratic society than freedom of expression.
Indeed a democracy cannot exist without that freedom to express new ideas
and
to put forward opinions about the functioning of public institutions. The
concept of free and uninhibited speech permeates all truly democratic
societies and institutions. The vital importance of the concept cannot be
overemphasized…The principle of freedom of speech and expression has been
firmly accepted as a necessary feature of modern society.
(58)
[161] There was little debate regarding
the
assertion that activities affected by s. 13(1) of the Act constitute
"expression" covered by s. 2(b).
[162] In Taylor the majority
dealt
with the violation quite briefly, saying that the s. 2(b) guarantees are
infringed if it can be shown that either the purpose of the impugned
governmental regulation is to restrict expressive activity or the regulation
has
such an effect.
[163] As to the issue of the
infringement
of s. 2(b), Dickson, C.J. stated,
Applying the Irwin Toy
approach
to the facts of this appeal, I have no doubt that the activity described
by s.
13(1) is protected by 2(b) of the Charter. Indeed, the point is
conceded by the Respondent Commission. To begin with, it is self-evident
that
this activity conveys or attempts to convey a meaning, the medium in issue
to
my mind being susceptible to no other use. Indeed, I find it impossible to
conceive of an instance where the "telephonic communication of matter" (to
paraphrase the language of s. 13(1)) could not be said to involve a
conveyance
of meaning. The inescapable conclusion is that the activity affected by s.
13(1) constitutes "expression" as the term is envisioned by s. 2(b).
(59)
[164] Therefore, the question then
becomes,
given that s. 13(1) offends the Charter of Rights and Freedoms, is
the
section saved by s. 1 of the Charter?
iii)
Charter Section 1 - Onus of Proof
[165] As we have seen, the
Charter guarantees certain enumerated civil rights as being so
fundamental and important that they should be immune from interference from
government. Indeed, s. 1 itself reiterates the guarantee of the rights
and
freedoms contained in the Charter.
The Canadian Charter of Rights
and
Freedoms guarantees the rights and freedoms as set out in it, subject
only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society. (s.
1).
[166] Application of s. 1 of the
Charter is a two-stage process. The first has already been
addressed
and we have concluded that the challenged law has the effect of abridging a
guaranteed right (namely, s. 2(b) of the Charter).
[167] The second stage examines whether
the
limit is a reasonable one that can be demonstrably justified in a free and
democratic society. In this consideration, we are guided by the decision of
the
Supreme Court of Canada in R. v. Oakes
(60)
("Oakes"), which
provides the standard for what can be demonstrably justified in a free and
democratic society. The onus of proving a permissible limitation on a
Charter right
rests
upon the party seeking to uphold the limitation. The party seeking
justification
under s. 1 must bring it within the exceptional criteria stated in
Oakes. The standard of proof
is on
the basis of a preponderance of probabilities.
Having regard to the fact that s. 1
is
being invoked for the purpose of justifying a violation of the
constitutional
rights and freedoms the
Charter was designed to
protect,
a very high degree of probability will be, in the words of Lord Denning,
'commensurate with the occasion'. Where evidence is required in order to
prove
the constituent elements of a s. 1 inquiry, and this will generally be the
case, it should be cogent and persuasive and make clear to the court the
consequences of imposing or not imposing the limit.
(61)
[168] As to the criteria, the objective
to
be served by the limitation of a Charter right must be sufficiently
important to warrant overriding a constitutionally protected right or
freedom.
The objective must relate to societal concerns that are pressing and
substantial
in a free and democratic society before it can be characterized as
sufficiently
important. S. 13(1) must be rationally connected to its stated purpose. The
measures must be fair and not arbitrary; the means should impair the right
in
question as little as possible; and there must be proportionality between
the
effects of the limiting measure and the objective. Finally, the objective
must
be measured against the severity of the deleterious effects of the measure.
[169] It is by the application of these
principles that s. 13(1) is to be tested and that leads us to refer once
again
to s. 2, s. 3(1) and s. 13(1) of the Canadian Human Rights Act.
These
sections recognize the government's role in the protection of individual
rights
by the enactment of human rights legislation, and express society's
commitment
to human dignity and the guarantee of equality.
B.
Taylor
[170] We return to Taylor as
the
logical beginning point for a discussion concerning the constitutionality of
s.13 (1). In Taylor the Supreme Court of Canada addressed the issue
of
whether s.13(1) of the Canadian Human Rights Act was consistent
with
freedom of expression guaranteed by s.2(b) of the Canadian Charter of
Rights
and Freedoms and if not, was it a reasonable limit on that freedom
within
the meaning of s.1 of the Charter. It further examined whether the
orders of the Tribunal were consistent with s. 2(b) and if not, did they
constitute a reasonable limit on freedom within the meaning of s. 1 of the
Charter
">.
[171] The primary issue as defined by
Dickson C. J. was whether s. 13(1) violated freedom of expression as
guaranteed
by s. 2(b) of the Charter insofar as it restricted the
communication of
certain telephone messages. Complaints had been lodged against John Ross
Taylor,
alleging that s. 13(1) was breached through telephonic communications that
were
likely to expose persons identifiable on the basis of race and religion to
hatred or contempt.
[172] The telephonic communication at
issue
was a service through which a member of the public could dial a telephone
number
and listen to a pre-recorded message, which over time involved thirteen
different messages. The Tribunal found that the messages were likely to
expose a
person or persons to hatred or contempt by reason of the fact that the
persons
were identifiable by race or religion and the Tribunal therefore issued a
cease
and desist order. There followed lengthy proceedings that ultimately led to
the
imposition of a fine on the Western Guard Party of $5,000.00, and a one-year
sentence of imprisonment on Mr. Taylor for contempt.
[173] The interposition of the passage
of
the Charter formed the basis for a notice of motion challenging the
constitutional validity of s. 13(1) of the Canadian Human Rights
Act as
contrary to freedom of expression.
(ii)The
Oakes
Test
[174] In the course of the analysis
under
s. 1 of the Charter, having concluded that the limit on a
Charter
right or freedom was "prescribed by law", the Court proceeded to apply
the
tests defined in Oakes. First, whether the objective of the
challenged
measure was sufficiently important to warrant limiting a Charter
right
and freedom, and second, the issue of proportionality, whether the impugned
measure is well suited to carry out its objective, and whether the impact
upon
an entrenched right or freedom is not needlessly or unacceptably severe.
(62)
[175] The analysis of the role of the
Charter in relation to the Canadian Human Rights Act as
remedial legislation involves a balancing of societal interests and values.
Taylor recognized that the Charter has a role where
individual
liberties are threatened. The Court referred to the broad legislative intent
of
s. 13(1) by reference to s. 2 of the Canadian Human Rights Act and
concluded that the purpose of the legislation is the promotion of equal
opportunity,
…unhindered by discriminatory
practices
based on, inter alia, race or religion - which informs the objective of s.
13(1). In denoting the activity described in s. 13(1) as a discriminatory
practice, parliament has indicated that it views repeated telephonic
communications likely to expose individuals or groups to hatred or
contempt by
reason of their being identifiable on the basis of certain characteristics
as
contrary to the furtherance of equality.
(63)
[176] As we have already discussed in
our
earlier comments on statutory interpretation, the Court relied upon the
Cohen
Committee report on hate propaganda to conclude that individuals subjected
to
racial or religious hatred are prone to psychological distress causing loss
of
self-esteem and feelings of anger and outrage.
(64)
Ultimately, the Court concluded that hate messages "undermine the dignity
and
self-worth of target group members and, more generally, contribute to
disharmonious relations … as a result eroding the tolerance and
open-mindedness
that must flourish in a multicultural society which is committed to the idea
of
equality."
(65)
[177] The Court also directed its
attention
to the position taken in the international community in eradicating
discrimination including the dissemination of ideas based on racial and
religious superiority. This, the Court said, is relevant in reviewing the
legislation under s. 1 of the Charter.
(66)
Thus, it was concluded that the objective of the challenged measure was
sufficiently important to warrant limiting a
Charter right or freedom.
[178] The Court then addressed the
issue of
proportionality, and the state's evidence that s. 13(1) of the Act was
proportionate to a valid objective. This onus is met if: a connection exists
between the measure and the objectives so that the former cannot be said to
be
arbitrary, unfair or irrational; the measure impairs the Charter
right
or freedom no more than necessary; and the effects of the measure are not so
severe as to constitute an unacceptable abridgement of the right or
freedom.
[179] These principles must be applied
in
the process of analysis under s. 1 of the
Charter.
It is not enough to simply balance or
reconcile those interests promoted by a government objective with abstract
panegyrics to the value of open expression. Rather, a contextual approach
to
s. 1 demands an appreciation of the extent to which a restriction of the
activity at issue on the facts of the particular case debilitates or
compromises the principles underlying the broad guarantee of freedom of
expression.
(67)
[180] Dickson C.J. also referred to and
adopted his conclusion in Keegstra that hate propaganda contributes
little to the aspirations of Canadians and that limitations on hate
propaganda
focus on expression which "…strays some distance from the spirit of s.
2(b)".
(68)
(iii) Rational
Connection
[181] The Court then proceeded to
address
the Oakes proportionality inquiry in relation to the question of
rational connection and concluded,
In my view, once it is accepted that
hate
propaganda produces effects deleterious to the guiding principles of s. 2
of
the Canadian Human Rights Act, there remains no question that s.
13(1) is rationally connected to the aim of restricting activities
antithetical to the promotion of equality and tolerance in society…In sum,
when conjoined with the remedial provisions of the Canadian Human
Rights
Act, s. 13(1) operates to suppress hate propaganda and its harmful
consequences, and hence is rationally connected to furthering the object
sought by Parliament.
(69)
[182] Dickson C.J. referred to the
argument
advanced in Keegstra that the relevant provision of the
Criminal
Code was ineffectual in reducing the prevalence of hate propaganda in
Canada and accordingly, was not rationally connected to Parliament's
objective.
In the context of human rights legislation, he concluded that substantiated
complaints under s. 13(1), followed by a cease and desist
order,
…reminds Canadians of our fundamental
commitment to equality of opportunity and the eradication of racial and
religious intolerance.
(70)
(iv) Minimal
Impairment
[183] Dealing with the second branch of
the
proportionality issue - minimal impairment, Dickson C.J. first referred to
the
statement of Lamer J. in Insurance Corp. of British Columbia v.
Heerspink, [1982] 2 S.C.R. 145, at p. 158
that,
…a human rights code is not to be
treated
as another ordinary law of general application. It should be recognized
for
what it is, a fundamental law.
In my view, there is no conflict
between
providing a meaningful interpretation of s. 13(1) and protecting the s.
2(b)
freedom of expression so long as the interpretation of the words "hatred"
and
"contempt" is fully informed by an awareness that Parliament's objective
is to
protect the equality and dignity of all individuals by reducing the
incidence
of harm-causing expression. Such a perspective was employed by the Human
Rights Tribunal in Nealy v. Johnson (1989) 10 C.H.R.R. D/6450.
(71)
[184] The Court then approved the
approach
taken in Nealy, which gave full force to the purpose of the
Canadian Human Rights Act and Parliament's objective in relation to
hatred. Hatred speaks of extreme ill will and emotion absent any redeeming
qualities in the person at whom the expression is
directed.
According to the reading of the
Tribunal,
s. 13(1) thus refers to unusually strong and deep-felt emotions of
detestation, calumny and vilification, and I do not find this
interpretation
to be particularly expansive.
(72)
[185] We have already concluded that
showing that the offending statements are true is not a defence to a breach
of
s.13(1) of the Canadian Human Rights Act. Dickson C.J. discussed
this
issue in Keegstra, which involved the criminal offence of wilfully
promoting hatred against an identifiable group (s. 319(2) of the
Criminal
Code). In Keegstra, he expressed the view that he was doubtful
as
to whether the Charter
…mandates that truthful statements
communicated with an intention to
promote hatred need be excepted from criminal condemnation.
(73)
[186] Relying then on his reasoning in
Keegstra, Dickson, C.J. in Taylor stated that
…I am of the view that the
Charter does not mandate an exception for truthful statements in
the
context of s. 13(1) of the Canadian Human Rights Act.
(74)
[187] Similarly, it seems to be settled
law
that evidence of intent is not required, and that the focus of human rights
inquiries is on effects.
(75)
Dickson, C.J. found that ignoring intent does not run afoul of the
proportionality test in
Oakes.
Clearly an intention to expose others
to
hatred or contempt on the basis of race or religion is not required in s.
13(1). As I have just explained, however, s. 13(1) operates within the
context
of a Human Rights Statute. Accordingly, the importance of isolating
effects
(and hence ignoring intent) justifies this absence of a mens rea
requirement. I also reiterate the point that the impact of the impugned
section is less confrontational than would be the case with a criminal
prohibition, the legislative framework encouraging a conciliatory
settlement
and forbidding the imposition of imprisonment unless an individual
intentionally acts in a manner prohibited by an order registered with the
Federal Court.
(76)
[188] While acknowledging that the
absence
of intent may make s. 13(1) wider in scope than the criminal provision
discussed
in Keegstra, the distinction was found to be necessary in light of
the
important objective of eradicating systemic
discrimination.
Moreover, intent is far from
irrelevant
when imposing incarcerating sanctions upon an individual by way of a
contempt
order, subjective awareness of the likely effect of one's messages being a
necessary precondition for the issuance of such an order by the Federal
Court.
Though it is true that the absence of an intent requirement under s. 13(1)
may
make the section wider in scope than the criminal provision upheld in
Keegstra, this particular distinction is made necessary by the
important objective of the Canadian Human Rights Act of
eradicating
systemic discrimination.
(77)
[189] The Court also addressed intent
in
the context of a contempt order that may be invoked for breach of an order
of
the Tribunal. The statute allows a Tribunal to make a cease and desist order
consequent on a finding of a discriminatory practice. Dickson C.J. thus
disposed
of an argument based on the impact of a one-year term of imprisonment
imposed on
Mr. Taylor in the Federal Court for contempt:
In short, a term of imprisonment is
only
possible where the Respondent intentionally communicates messages which he
or
she knows have been found likely to cause harm described in s. 13(1), and
I
therefore cannot agree that the possibility of a contempt order issuing
against an individual unduly chills the freedom of expression.
(78)
(v)
Conclusion
[190] Dickson C.J. did not view the
effects
of s. 13(1) upon freedom of expression to be so deleterious as to make
intolerable its existence in a free and democratic
society.
Moreover, operating in the context of
the
procedural and remedial provisions of the Canadian Human Rights
Act,
s. 13(1) plays a minimal role in the imposition of moral, financial or
incarcerating sanctions, the primary goal being to act directly for the
benefit of those likely to be exposed to the harms caused by hate
propaganda.
It is therefore my opinion that the degree of limitation imposed upon
freedom
of expression by s. 13(1) is not unduly harsh and that the third
requirement
of the Oakes proportionality approach is satisfied.
(79)
[191] Dickson C.J. concluded therefore
that
the government had demonstrated the proportionality of the provision and
consequently that s. 13(1) was saved under s. 1 of the Charter as a
reasonable limit in a free and democratic society.
[192] There are indeed limits to
freedom of
expression. The decision in Taylor recognizes that hate propaganda
presents a serious threat to society.
C.
Dagenais
[193] Since Taylor, the
Supreme
Court of Canada has again addressed the issue of freedom of expression,
albeit
in a different context. The Dagenais case involved the balancing of
the
Charter guarantee of freedom of expression and the right to a fair
trial. A party seeking a publication ban under a common-law rule in order to
avoid a real and serious risk to the fairness of a trial has the onus of
proving
that the ban is necessary and that it relates to an important objective that
cannot otherwise be achieved through a reasonably available alternate
measure.
It also must be shown that the proposed ban is as limited as possible and
further that the salutary effects are proportional to the deleterious
effects of
the ban. The two Charter values involved must be balanced, but
neither
takes precedence. Also, the efficacy of any ban must be part of the
consideration when considering the necessity of such a remedy.
[194] On the way to its decision, the
Court
made no reference to Taylor, but did speak to Charter
issues
that bear on the matter before us.
[195] Lamer C.J., speaking for the
majority, referred to the reasons of the Ontario Court of
Appeal,
Dubin C.J.O. for the court noted that
it
was the common law courts that first recognized the importance of freedom
of
expression and the crucial role of the press in informing the public in a
free
and democratic society.
(80)
[196] Emphasis once again is placed on
the
s. 2(b) guarantees.
Section 2(b) guarantees the right of
all
Canadians to "freedom of thought, belief, opinion and expression,
including
freedom of the press and other media of
communication".
The importance of the s. 2(b)
freedoms
has been recognized by this Court on numerous occasions.
(81)
[197] Reference was made to
Canadian
Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122 at p.
129.
Freedom of the press is indeed an
important and essential attribute of a free and democratic society, and
measures which prohibit the media from publishing information deemed of
interest obviously restrict that freedom.
(82)
[198] Lamer C.J. also relied on the
decision of McLachlin J. in R. v. Zündel (1992) 2 S.C.R. 731 at
p. 752 in which she distilled the commentary and case law on the
subject of
freedom of expression, and stated that the interests protected by s. 2(b)
are,
…truth, political or social
participation, and self-fulfilment.
(83)
[199] In Dagenais, Lamer C.J.
struck down the common law rule governing publication bans which emphasize
the
right of a fair trial over the free expression interests of those affected
by
the ban, saying that the balance that rule struck was inconsistent with the
principles of the Charter, in particular the equal status given to
section 2(b) and 11(d) of the Charter.
[200] In discussing the efficacy of an
order directing a publication ban, Lamer C.J.
stated,
It should also be noted that recent
technological advances have brought with them considerable difficulties
for
those who seek to enforce bans. The efficacy of bans has been reduced by
the
growth of interprovincial and international television and radio
broadcasts
available through cable television, satellite dishes and short wave
radios. It
has also been reduced by the advent of information exchanges available
through
computer networks. In this global electronic age,
meaningfully
restricting the flow of information
is
becoming increasingly difficult. Therefore, the actual effect of bans on
jury
impartiality is substantially diminishing.
(84)
[201] This statement was made while
discussing how efficacious a publication ban would be and whether
alternative
measures would be successful in controlling the risk of an unfair trial.
Basically, what was at stake in this case was whether the salutary effects
of
the ban were outweighed by the negative impact on freedom of expression. The
Court then proceeded to apply the Oakes analysis, in the course of
which Lamer C.J. suggested some modification or restatement of that
analysis.
(85)
D. Motion - Section 52 of The
Constitution Act, 1982
[202] In considering the constitutional
issue, it therefore remains our responsibility to apply the principles set
out
in Taylor to the facts of this case in a manner that recognizes
that
Taylor held that s. 13(1) of the Act is a reasonable and
justifiable limit on freedom of expression. Taylor unquestionably
must
inform our conclusion with respect to the constitutionality of s. 13(1),
moreover, high deference must be given to the Court's decision with respect
to
the overall approach to the analysis involving the application of the
principles
to the facts of this case. It is not our place to re-examine issues that
have
been adjudicated upon by the Supreme Court of Canada and which serve as our
guidance.
[203] We have already stated in these
reasons that as a matter of statutory construction, s. 13(1) which embraces
"telephonic communication" is to be construed in a manner that recognizes
that
technology is not static and is intended to embrace technological electronic
advances that have evolved into what is now known as the Internet.
[204] We now move to a discussion of
the
specific points placed in issue by the Respondent. The Respondent seeks an
order
declaring s. 13(1) of the Canadian Human Rights Act inoperative by
virtue of its violation of sections 2(b), 2(a) and 7 of the Canadian
Charter
of Rights and Freedoms, a violation that cannot be justified under s.
1. In
essence, the Respondent asks us to distinguish Taylor on several
grounds:
i. Taylor applied specifical
ly
to communications by way of recorded telephone messages and so has no
application to communications on the
Internet;
ii. No evidence was before the Court
regarding the effect of s. 13(1) of the Act, or the allegation of
"hate" on freedom of speech in Canada;
iii. By virtue of amendments to the
Canadian Human Rights Act since 1990, s. 13(1) can no longer
survive Charter scrutiny;
iv. Taylor did not deal with
nor
was an argument made before the Court in relation to s. 2(a) of the
Charter and so this case raises for the first time an issue that
s.
13(1) is an unconstitutional violation of freedom of conscience and
religion.
(i) Application of
Taylor
to Internet
[205] It seems clear that the Court in
Taylor was of the view that the impetus for the passage of s. 13(1)
was
the communication of hate on recorded telephone messages. While dealing with
the
specific wording of s. 13(1), the factual context considered by the Court
was
that of recorded telephone messages. Dickson C.J. in the opening paragraphs
of
his reasons said that the primary issue in the
appeal was whether s. 13(1) violates
freedom of expression insofar as it restricts the communication of certain
"telephone messages".
(86)
Other references follow, all having to do with telephone communications or
messages.
(87)
[206] Thus it was on a particular set
of
facts, hate messages recorded on a telephone answering or message device,
that
the constitutional validity of s. 13(1) was tested.
a) Respondent's
position
[207] The position advanced by the
Respondent is best stated and understood by reference to Charter
principles. Based on the application of those principles to the facts of
this
case, we were urged to conclude that the Commission had not discharged its
burden of showing that the limit imposed by s. 13(1) was a reasonable
one
that was demonstrably justified in a free and democratic society. Extending
the
application of s.13(1) of the Act to the Internet was too broad and
invasive.
Essentially, what is contended is the conclusion reached by McLachlin J. (as
she
then was) in her dissent in Taylor,
I conclude that the benefits to be
secured by s. 13(1) of the Canadian Human Rights Act fall short
of
outweighing the seriousness of the infringement which the section effects
on
freedom of expression.
(88)
[208] Section 13(1) does not survive
constitutional scrutiny, it is said, because the infringement of freedom of
expression by s. 13 outweighs the benefits to be derived from it. The
reasons of
the majority in Taylor upholding constitutionality based on s. 1
are
significantly tied to the narrow factual context of a telephone message
device.
When Taylor was decided the cyber world was not a reality and so,
one
would argue, the Internet, an international network of interconnected
computers,
is vastly different than the message device considered by the Supreme Court
of
Canada. The Internet allows anyone in the world to take advantage of a wide
variety of communication and information retrieval methods, including
"e-mail",
"newsgroups", "chat rooms" and the "World Wide Web".
[209] We have already discussed the
evidence of Mr. Angus and Mr. Klatt earlier in these reasons concerning the
scope and function of the Internet. In Reno v. American Civil Liberties
Union,
(89) a
decision of the Supreme Court of the United States, useful reference is made
to
the character and dimensions of the Internet and the diverse methods by
which
information can be communicated through this new and revolutionary medium.
The
opinion of the Court was delivered by Justice Stevens who described the
Internet
as an international network of inter-connected computers which was an
outgrowth
of what began in 1969 as a military program called "ARPANET" designed to
enable
military personnel to communicate with one another even if some portions of
the
network were damaged by war. The Internet
is,
…a unique and wholly new medium of
world
wide human communication".
(90)
The Web is thus comparable from the
reader's viewpoint, to both a vast library including millions of readily
available and indexed publications and a sprawling mall offering goods and
services.
(91)
[210] In Taylor it was held
that
under the proportionality requirement, there must be a minimal impairment of
freedom of expression and the effect of s. 13(1) must not be so deleterious
as
to make intolerable its existence in a free and democratic society. These
tests,
it is argued, are no longer met given the evidence of the impact of s. 13(1)
on
expression on the Internet. The foundation of Dickson C.J.'s reasoning in
Taylor was that the chill upon open expression in the context of a
human rights statute is less severe than that which is occasioned where
criminal
legislation is involved. The latter imparts a degree of stigma and
punishment
whereas in the case of human rights legislation, the aim is remedial with
the
emphasis more upon compensation and protection of the victim.
[211] The Respondent says that the
remedial
nature of the Act is underscored by the fact that there are no
defences
to a charge under s. 13(1). In light of this Tribunal's ruling that truth is
no
defence, evidence of the truth of the impugned statements is not admissible.
The
Respondent harkens back to Dr. Schweitzer's testimony that the materials on
the
Zundelsite were lethal anti-Semitism and that they replicated the motifs of
historic anti-Semitism over a