Mohamed Elmasry et al v. Roger’s Publishing Ltd. and Ken MacQueen (Maclean's Magazine)

The British Colombian human rights tribunal released their decision on Friday, October 10, 2008 at http://www.bchrt.bc.ca/decisions/2008/pdf/oct/378_Elmasry_and_Habib_v_Rogers_Publishing_and_MacQueen_(No_4)_2008_BCHRT_378.pdf

Kyburz Case Summary - September 2003

BASIC SUMMARY OF THE CASE

Warman filed a complaint on 2 February 2002 alleging that Kyburz had communicated telephonically matters that were likely to expose Jews to hatred or contempt on the basis of race, national or ethnic origin, and religion contrary to s. 13(1) of the Act. Warman's complaint was later amended to include an allegation of retaliation for having filed the human rights complaint contrary to s. 14.1 of the Act.

The CHRT held two days of hearings in March of 2003 at which Kyburz declined to appear. The Tribunal rendered their decision upholding both complaints on 9 May 2003.

WHAT ARE THE FACTS OF THIS CASE?

Warman became aware of Kyburz's website patriotsonguard.org in March of 2001. Due to the anti-semitic content of the website, Warman brought the matter to the attention of Kyburz's US-based Internet Service Provider (ISP). The ISP first asked Kyburz to remove the offending material and then closed the site when he refused to do so. In the meantime, Kyburz had obtained a copy of Warman's email from the ISP and immediately began attacking Warman through anti-semitic emails and postings on his website that presumed Warman was Jewish.

The website resurfaced approximately a week later using another ISP and Kyburz continued an incessant campaign vilifying Warman with anti-semitic postings on his website. This website was ultimately shut down in December of 2001 after Warman contacted Kyburz's second ISP.

A few months later, Kyburz established a public internet forum on the Yahoo website entitled Patriots On Guard and continued to disseminate messages with similar content to those that had appeared on his website.

After Warman filed the human rights complaint in February 2002, Kyburz's attacks upon him intensified.

WHAT DOES THE DECISION SAY?

Issues

a) Did Kyburz repeatedly communicate or cause to be communicated the messages on the website?

b) Were the messages communicated in whole or in part via a telecommunications undertaking within the authority of Parliament?

c) Is the subject matter of the messages likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination?

d) Did Kyburz retaliate or threaten retaliation against Warman for filing the human rights complaint?

e) If yes to the above, what are the appropriate remedies?

How the Tribunal Dealt with the Issues

a) Did Kyburz repeatedly communicate or cause to be communicated the messages on the website?

There was substantial evidence that led the Tribunal to hold that he had. Similar to the Zundelsite, Kyburz signed his name on the homepage of the website, as well as on numerous other documents contained on the website. In addition, the site solicited subscriptions to a newsletter and requested that moneys be sent to Kyburz's address in Blairmore, Alberta. Lastly, Kyburz was the registered owner and contact for the website on registration documents for the URL of www.patriotsonguard.org.

In terms of the question of repetition, the Tribunal simply referred to the visitor counter of the website to demonstrate that the messages had been repeatedly disseminated.

b) Were the messages communicated via a telecommunications undertaking within the authority of Parliament?

The Tribunal noted that it was not entirely clear as to which version of s. 13 governed the complaint in that some of the instances in question pre-dated the change in the Act in December of 2001 that made it explicit that the jurisdiction of the Act included the internet.

The Tribunal found, however, that in either event the messages fell within the Tribunal's jurisdiction. If the earlier version applied, then the Tribunal would apply the decision in Zundel to give jurisdiction, and if the later version applied, then jurisdiction was explicit.

c) Was the subject matter of the messages likely to expose a person(s) to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination?

In addition to his own posts, Kyburz would frequently post material authored by others and append his comments at the end. The Tribunal noted that much of the material concerned the supposed evils of 'Ashkenazi Jews' or Jews of European descent. Taken together, the Tribunal held that the content of Kyburz's website told the reader that Jews are innately devious, treacherous, murderous, desired to kidnap and kill "white children" as well as take over the world. Further, Kyburz described Jews as sub-human, scum, vermin, and low-lives, and posted material that advocated the extermination of the Jewish people.

The Tribunal had no difficulty in finding that this material would foster hatred and contempt of Jews on the basis of their religion. Further, due to his persistent attacks on Jews of European origin, the Tribunal also held that Kyburz had discriminated against Jews on the basis of their national or ethnic origin. The Tribunal also accepted the expert witness testimony that Kyburz's efforts to ascribe negative character traits to Jews as innate or inherited supported a finding of discrimination on the basis of race due to Kyburz's intent rather than actual fact.

On the basis of the evidence and these findings, the Tribunal upheld the section 13 complaint against Kyburz.

d) Did Kyburz retaliate for the filing of the complaint?

The Tribunal found that Kyburz was responsible for the creation of the 'patriots on guard' Yahoo forum and for much of the content therein. This content repeatedly attacked Warman, indicated that a letter had been sent to Warman's employer ascribing the commission of heinous criminal activities to Warman and demanding his dismissal. More troubling to the Tribunal were the thinly veiled death threats issued by Kyburz against Warman on this forum.

There was some question regarding the admissibility of emails sent by Kyburz to numerous parties including members of the Commission shortly before the Tribunal hearing which left inadequate time for their disclosure by the Commission. As Kyburz had chosen to boycott the hearing, the material could not be disclosed to him there. In the end, the Tribunal declined to rule on the question as they indicated that the emails in question added little to the complaint and were merely a continuation of the same types of material already contained on the record.

Based on the existing material, the Tribunal found that Kyburz had repeatedly attacked Warman's character, attempted to have Warman fired from his employment, and issued death threats against him and that such actions escalated dramatically following the filing of the human rights complaint. Thus, the Tribunal upheld the s. 14.1 complaint as well.

e) What are the appropriate remedies?

i) for the s. 13 complaint?

The Tribunal ordered that Kyburz and any persons acting in concert with him cease communicating telephonically messages such as those found in the evidence entered before the Tribunal, or any similar such messages that would be likely to expose a person to hatred or contempt on the basis of a prohibited ground of discrimination.

The Tribunal further ordered Kyburz to close the Yahoo forum within seven days of receiving the Tribunal judgement, but declined to order Kyburz to contact an internet body that archived much of the internet and where a few remnants of Kyburz's site could still be found.

Based on Kyburz's vicious and anti-semitic tirades against Warman, the Tribunal ordered Kyburz to pay $15,000 in damages under s. 54(1)(b) of the Act. In a ruling of some interest, the Tribunal

accepted the Commission argument that Warman was entitled to damages as a victim of the discrimination despite the fact that he is not himself Jewish. The Tribunal agreed that it was Kyburz's intent to discriminate on a prohibited ground that should be the deciding factor, and not the accuracy of that intent. Interest was also awarded.

ii) under the penalty clause of s. 54(1)(c)?

This was the first time that the Tribunal had considered the new penalty provisions under s. 54(1)(c) that give them the power to order what is in essence a monetary fine of up to $10,000 as a penalty to reflect society's disapproval taking into account the nature of the discrimination, the intent of the person, their past practices, and their ability to pay.

The Tribunal held that Kyburz's actions were extreme in nature and had included calls for the extermination of the Jewish people thus weighing in favour of a significant penalty. The fact that they had no evidence of previous practices served somewhat as a mitigating factor. Given Kyburz's boycotting of the hearing, the Tribunal gave little weight to his self-proclaimed poverty and said that it is the responsibility of the respondent to raise admissible evidence of their financial circumstances. With all of the above in mind the Tribunal imposed a penalty of $7,500 payable within 35 days of notification of the decision.

iii) retaliation?

The Tribunal reviewed the fact that Kyburz had engaged in serious retaliation against Warman including repeated defamation, attempting to have Warman fired from his position at the Federal Court, and also issuing death threats against him.

A cease and desist order in relation to the retaliation was issued. In addition, the Tribunal considered Warman's testimony as to the effect of the retaliation including concerns for his personal safety to the extent of involving the police in the matter. Based on this, an award of $15,000 in damages for pain and suffering was considered appropriate with interest.

WHAT DOES THIS MEAN FOR FUTURE CASES?

The case has fairly important future implications because:

• - reinforces human rights act jurisdiction over the internet

• - the Tribunal will still render a decision even if the respondent attempts to boycott the hearing

• - the intent of the discriminator is the deciding factor, (ie. Kyburz attacked Warman because he erroneously thought he was Jewish) not the accuracy of that intent

• - the substantial damages awarded should serve as a deterrent to others

keywords:

Kyburz  Warman  anti-semitism   

CHRT v. Taylor and Western Guard T.D. 1/79

Decision released July 20, 1979.

THE CANADIAN HUMAN RIGHTS ACT

HUMAN RIGHTS TRIBUNAL

BEFORE:

J. FRANCIS LEDDY

SIDNEY N. LEDERMAN

ROSE VOLPINI

BETWEEN:

CANADIAN HUMAN RIGHTS COMMISSION,

CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION,

DAVID S. SMITH,

TORONTO ZIONIST COUNCIL,

AJALON LODGE,

COMPLAINANTS,

- and -

THE WESTERN GUARD PARTY

and

JOHN ROSS TAYLOR

(also known as George Morang).

RESPONDENTS.APPEARANCES:

RUSSELL JURIANSZ:

Counsel for the Canadian Human Rights Commission

DAVID ZIFKIN:

Counsel for the Toronto Zionist

Council; Ajalon Lodge; David S. Smith;

The Canadian Holocaust Remembrance Association

JOHN ROSS TAYLOR:

In person and on behalf of The Western Guard Party.

DATES OF HEARING:

June 12th, 13th, 14th and 15th, 1979.

REASONS FOR DECISION

1. INTRODUCTION

This inquiry is unique in two respects. It is the first hearing by a Canadian Human Rights Tribunal into complaints filed under the Canadian Human Rights Act, S.C. 1977, c.33 and moreover, it is the first examination of s.13(1) of the statute which does not appear to have a counterpart in any other jurisdiction. It reads as follows:

"13. (1) 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."

This is a hearing into the complaints lodged by David S. Smith dated May 25th, 1979, the Toronto Zionist Council dated September 7th, 1978, Ajalon Lodge dated September 14th, 1978 and the Canadian Human Rights Commission dated November 6th, 1978, January 16th, 1979, March 19th, 1979 and May 29th, 1979 and the Canadian Holocaust Remembrance Association dated May 16th, 1979 against the Western Guard Party and John Ross Taylor (also known as George Morang) that the Respondents had engaged in a discriminatory practice by communicating telephonically, repeatedly, over telephone number 967-7777 in Toronto, matter that is likely to expose persons identifiable on the basis of race and religion to hatred or contempt. The complainants of the Canadian Human Rights Commission identify particular dates on which the impugned messages were communicated as well as alleging that they occurred repeatedly and in a continuing fashion. Those dates are July 6th, September 27th, November 15th, November 11th, December 14th and 19th, 1978 and January 9th, February 28th, May 2nd and 8th, 1979. 2. LIMITS ON FREEDOM OF SPEECH

At first glance, it would seem anomalous that the Canadian Human Rights Commission, which by its name would appear to be in favour of fundamental freedoms, is one of the Complainants arguing for the restriction of the Respondents' general freedom of speech. Nevertheless, Parliament has obviously ordained that certain kinds of speech have to be curtailed in the public good because the potential for harm outweighs the value to society in the guarantee of unrestricted freedom of speech. We are faced with the task of interpreting s.13 of the Canadian Human Rights Act and determining its application to the facts before us.

Mr. Taylor and the Western Guard Party instituted a telephone message service in Toronto whereby any member of the public by dialing the relevant phone number could listen to a pre-recorded message of approximately one minute in length. The evidence disclosed that from 1977 to date, 13 different messages have been disseminated over the telephone lines in this fashion. Since 1973 the telephone number in question has been 967-7777. All the messages were drafted and recorded by Mr. Taylor himself who is the acknowledged leader of the Western Guard Party. This telephone service has been financed from time to time by the Western Guard Party or Mr. Taylor or his assistant Mr. Jack Prins.

Although this telephone number has not been widely publicized by the Respondents, they have attempted to make the number known primarily in two ways:

• 1. by the distribution of cards bearing only a maple leaf symbol and the words "Dial 967-7777", among individuals and crowds and by slipping them under doorways. There was nothing on the card which would indicate the nature of the message that a caller would receive;

• 2. by a notation in the telephone book which reads "White Power Message--967-7777". The name alone indicates to a prospective caller the nature of the message that he will hear should he dial the number.

Appended as a schedule to these reasons are the transcripts of the tapes in question which were submitted into evidence and verified as accurate by all parties and they cover the period from August 17th, 1977 through to May 8th, 1979. We have had the benefit of hearing all of the tapes that are still in existence. These are the telephone messages that the Complainants wish this Tribunal to restrain.

The Tribunal is not unmindful of the tradition of free speech which has been a cornerstone of our society and which is enshrined in s.1(d) of the Canadian Bill of Rights. It reads:

"It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely... freedom of speech."

Section 2 of the Bill of Rights also provides: "Every law of Canada shall, unless it is expressly declared by an act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights of freedoms herein recognized and declared...".

In Curr v The Queen, [1972] S.C.R. 889, Mr. Justice Laskin (as he then was), speaking for the Supreme Court of Canada, stated at p. 896 that with respect to the scope of s.1 of the Bill of Rights, "the section is given its controlling force over Federal law by its referential incorporation into s.2". Freedom of speech, however, is not presently unrestricted in this country and has never been so regarded.

The common law preceding the enactment of the Bill of Rights never permitted unbridled freedom of speech. Chief Justice Rinfret of the Supreme Court of Canada in Boucher v The King, [1950] 1 D.L.R. 657 at 666 put it this way:

"I would not like to leave this appeal, however, without stating that to interpret freedom as licence is a dangerous fallacy. Obviously, pure criticism, or expression of opinion, however severe or extreme, is, I might also say, to be invited, but as was said elsewhere, 'there must be a point where restriction on individual freedom of expression is justified and required on the grounds of reason, or on the ground of the democratic process and the necessities of the present situation.

It should not be understood from this court--the court of last resort in criminal matters in Canada--that persons subject to Canadian jurisdiction 'can insist on their alleged unrestricted right to say what they please and when they please, utterly irrespective of the evil results which are often inevitable.'"

Even subsequent to the enactment of the Canadian Bill of Rights, the courts have held that "freedom of speech" as that expression is used in s.1(d) of the Canadian Bill of Rights does not provide Canadian citizenry with an unrestricted licence to say what they want, when they want. In Regina v McLeod (1970), 1 C.C.C. (2d) 5 at p. 7, Mr. Justice Maclean of the British Columbia Court of Appeal considered s.1(d) and adopted the words of Lord Wright in an earlier case as follows:

"'Free' in itself is vague and indeterminative... free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law."

In a similar view, the Manitoba Court of Appeal in R v Prairie Schooner News Ltd. et al (1970) 1 C.C.C. (2d) 251, held that freedom of speech could not be totally unfettered and in the circumstances of that case held that an accused could not rely upon the Bill of Rights in defence of his publication of obscene material. In fact, these limitations on freedom of speech are so well recognized in Canadian jurisprudence that Chief Justice Evans in Clark et al v Attorney General of Canada (1978), 17 O.R. (2d) 593, in considering the effect of s.1(d) of the Bill of Rights, was moved to say at p. 624:

"It is trite law to say that freedom of speech is not absolute but is freedom governed by law."

And, even more recently, Mr. Justice Spence, speaking for the majority of the Supreme Court of Canada in CKOY Ltd. v The Queen (1979), 43 C.C.C. (2d) 1 at p.12 expressed a similar sentiment with respect to freedom of the press as set out in s.1(f) of the Bill of Rights: "However, as has been stated on many occasions, the freedom of the press is not absolute and the press, as all citizens, is subject to the ordinary law and has no more freedom of expression than the ordinary citizen."

Accordingly, one must take cognizance of the various restrictions which the law has imposed upon any general right of freedom of speech. The Criminal Code proscribes seditious libel (ss.60-62); blasphemous libel (s.260); criminal defamatory libel against individuals (s.261); causing disturbances (s.171); the communication of false messages with intent to injure or alarm a person (s.330) the mailing of obscene matter (s.164).

There is also a well established body of law relating to defamation in Canada which may make a person liable for damages for the publication of words containing an untrue imputation against the reputation of another. It has been held that an imputation which tends to expose an individual to hatred, contempt or ridicule is defamatory of him: See Gatley on Libel and Slander (6th Edition) pp. 4-5. Members of an ethnic or racial group cannot resort to the law of defamation for civil redress in respect of statements which defame a group as a whole without singling out particular individuals. This law protects personal but not group reputation. Parliament, however, has made criminal certain kinds of speech which advocate genocide or promote hatred of groups. The hate propaganda sections of the criminal code, namely, sections 281.1(1) and (2) and 281.2(1) and (2) read as follows:

• "281.1 (1) Every one who advocates or promotes genocide is guilty of an indictable offence and is liable to imprisonment for five years.

• (2) In this section 'genocide' means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely:

• (a) killing members of the group, or

• (b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

• 281.2 (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace, is guilty of

• (a) an indictable offence and is liable to imprisonment for two years; or

• (b) an offence punishable on summary conviction.

• (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

• (a) an indictable offence and is liable to imprisonment for two years; or

• (b) an offence punishable on summary conviction."

Moreover, there is other federal legislation which curtails freedom of speech to some extent by administratively preventing the use of certain federal facilities for the transmission of matter or material which is considered obscene, indecent, immoral or scurrilous (s.7 of the Post Office Act) or broadcasting over radio or television any abusive comment on any race or religion (Regulations made under the Broadcasting Act, SOR/64-69, SOR/64-249, SOR/64-50). With respect to the former, an order may be made prohibiting the delivery of all mail directed to a person or deposited for mail by that person who contravenes the section of the Act. Violation of the Broadcasting Act Regulations could result in the loss of licence which would thereby deprive one of this medium of communicating his opinions. In addition, we now have section 13(1) of the Canadian Human Rights Act. Parliament has therefore moved in the direction of denying an individual or group use of a federal system or a federally regulated system of transmitting information for purposes of conveying hate or exposing individuals to hatred or contempt.

It appears to be the policy of Parliament that these communication systems are not available to assist individuals who are intent upon weakening the fundamental beliefs maintained within Canadian society and which are best expressed in s.2 of the Canadian Human Rights Act as follows:

"The purpose of this Act is to extend the present laws in Canada to give effect, within the purview of matters coming within the legislative authority of the Parliament of Canada to the following principles:

• (a) every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member 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 or marital status, or conviction for an offence for which a pardon has been granted or by discriminatory employment practices based on physical handicap..."

These values are considered paramount and so worthy of preservation that it necessarily involves encroachment upon the desire of certain individuals within our society to say and do things which would deny equality of opportunity to others. Since World War II, these principles have attained universal recognition. Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination as passed by the General Assembly of the United Nations provides:

"States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

• (a) Shall declare an offence punishable by law all discrimination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

• (b) Shall declare illegal and prohibit organizations and also organized and all other propaganda activites, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

• (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination."

Article 5 of the United Nations' International Covenant on Civil and Political Rights states:

• "1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

• 2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent."

These principles have been accepted by Canada and in Canada's Report to the United Nations on the Implementation of Article 5 of the International Covenant on Civil and Political Rights, at p.17 it is stated:

"This article authorizes the Canadian Government to take certain actions which could restrict the freedom of action of persons or groups of persons who advocate the limitation or destruction of the rights or freedoms recognized in the Covenant. For example, Parliament could adopt law prohibiting any propaganda aimed at the destruction or limitation of the rights recognized in the Covenant. However, except for certain statutory provisions, such as:

• (a) ss. 281.1 to 281.3 of the Criminal Code, which prohibit hate messages directed against a group distinguishable by colour, race, religion or ethnic origin;

• (b) s.12 of the Canadian Human Rights Act which prohibits propaganda which, in respect of employment or the provision of services, including the provision of residential accommodation and commercial premises, incites discrimination on prohibited grounds, such as race, national or ethnic origin, colour, religion, age, sex, marital status or conviction for which a pardon has been granted and, in matters related to employment, physical handicap; and

• (c) s.13 of the same Act, which prohibits the use of the telephone to spread hate messages against an identifiable group on prohibited grounds of discrimination when the telecommunication undertaking so used falls within the legislative authority of Parliament, no such limitation of freedom of expression exists in federal legislation. The Canadian government considers that the rights and freedoms recognized in the Covenant, and those which are not, are, in Canada, sufficiently protected against action aimed at destroying them."

Accordingly, it is Canadian policy that individuals under the guise of freedom of speech and freedom of action cannot say things or take steps or incite or advocate the destruction of freedoms which all of us enjoy. 3. AN ANALYSIS OF THE MESSAGES

It is with this background that we now proceed to examine s.13 and the messages in question. This statutory provision raises a number of issues:

• 1. Does the author of the propaganda have to specifically intend to create hatred or to expose people to it? What if he believes he is merely telling the factual truth and leaves the conclusions up to others?

• 2. Must hatred or contempt be direct results of the message conveyed?

• 3. Is it necessary that someone actually receive the message and react to it?

• 4. Who is to do the hating?

• (a) People who already hate? i.e. the message merely reinforces and supports views previously held by the recipient?

• (b) People who did not hate before, but who are induced or incited to hatred by a communication?

• (c) do (a) and (b) refer to

• (i) a small group already pre-disposed?

• (ii) the reasonable person?

• (iii) the right-thinking person?

• (iv) everyone?

• 5. What is the standard of proof?

• 6. Does the statement have to express hatred directly itself, or may it only incidentally arouse hatred in its audience?

• 7. Is truth a defence?

• 8. What kinds of statements and what degree of animosity are necessary to bring a statement within the law?

• 9. Does it matter that people go to the message voluntarily, knowing what to expect? That is, what if the hate-inducing communication is sought out, rather than being imposed on people?

As we listen to and read the messages, we frankly admit that we find it difficult to follow the thread of thought in most of them. Professor Rene-Jean Ravault having analyzed the tapes and transcripts, was called as a witness by the Commission and provided considerable insight into the structure and effect of such telephonic messages. He is a member of the Department of Communication Faculty of Arts, University of Ottawa and has been teaching in the area of communication for 5 years. His courses deal with the process of human communication and content analysis of the media. He has also taught courses relating to political propaganda and in particular published an article relating to Nazi propaganda. Of particular interest to this inquiry is the fact that Professor Ravault is completing a doctorate degree at the University of Iowa and the subject matter of his thesis is the study of mass communication, mass media, the impact of television and the impact of radio broadcasting as they relate to political and advertising persuasion.

He testified that in order to ascertain the impact of the words spoken in the message, it was not sufficient to examine them in isolation but rather they must be read in social context. Most human beings do not receive and interpret words as they are written or spoken, devoid of subjective feelings. A number of factors contribute to the understanding and the effect that the words may have on the recipient. Professor Ravault listed them and commented upon them as follows:

• 1. The Personal Characteristics of the Person Receiving the Communication:

• When individuals are frustrated by reason of unemployment or have suffered a financial reversal they are more likely to be persuaded by propaganda and to become involved in some political action. When people have a weak personality or lack self confidence, they have a tendency to listen to things and to look for a group to which they may belong.

• They aspire to a particular cause which may assist them in fulfilling some of their needs and in overcoming their difficulties. People have a tendency to anchor their values in these groups and propaganda often serves as the catalyst for their joining such groups. When there is an economic recession or the country has suffered a national disappointment or there is widespread hardship, there is a feeling of instability and people are more likely to be receptive to propaganda in their search for a ready cure for the country's ills and their personal problems.

• 2. The Medium that is Used to Transmit the Communication: There is a difference between the effect of words spoken over the radio and words spoken over the telephone. The latter is more personalized and the degree of concentration is stronger. A tape recorded message, however, is not as effective as the exchange which takes place in a telephone conversation.

• 3. Credibility of the Originator: If the person making the communication relies upon strong authorities such as academics and politicians; if he invokes the quotations of famous religious leaders and even the concept of Jesus Christ and God; and, if he adopts their statements as being in accord with his position then that lends an air of credibility to what be is saying.

• 4. The Motivation of the Originator: If the recipient of a message knows that the originator stands to earn a profit should he persuade the recipient, then the message has less impact. However, if the recipient knows that there is no profit motive involved, that too lends weight to the message being given and is therefore more persuasive.

• 5. The Exploitation of Frustrating Situations: If the originator focuses in his message upon a contemporaneous problem such as the cause of a crippling postal strike, then the message has greater impact.

With these factors in mind, Professor Ravault proceeded to analyze the messages in a five step process:

• 1. a literal interpretation of what is said in each of the individual messages;

• 2. the cumulative meaning of what is said in the messages studied as a whole;

• 3. the effect of these messages as communicated over the telephone;

• 4. a comparison of the nature of the messages and Nazi propaganda as spread in the 1930's and 1940's;

• 5. an analysis of the messages in light of published sociological studies on hate communication in Canada.

Individually, the tapes vary considerably in terms of their respective characteristics and their tendencies to expose individuals to hatred or contempt.

The first message made on August 17th, 1977 is fairly innocuous in itself as the only group identified are communists, and specifically Chilean communists, but there are matters which might attract the listener's attention such as unemployment, inflation, immigration and profits to international capital. Professor Ravault felt that this message arouses feelings and the listener's interest and it may set the framework for messages to be delivered subsequently.

The second message made between September 10th and October 28th, 1977 is more specific. Various individuals and business enterprises are mentioned by name. There is a suggestion that there has been commercial fraud perpetrated on the public. The Mayor of North York is accused of being involved in some business fraud. In this context there is a reference to the fact that the Mayor of North York is Jewish. An atmosphere is created by this message suggesting business scandals and that a Jewish person is behind the substantial financial losses suffered by the shareholders and creditors of a corporation that he once controlled.

Professor Ravault concludes that these two messages and the next message made between October 29th and November 2nd, 1977 which again refers to commercial fraud with the implicit suggestion that Jewish firms or individuals with Jewish surnames are responsible, create a climate of frustration and makes the recipient anxious to know more about these scandals and how they are wearing away the fabric of state built by "our British forbears".

The fourth message dated April 4th, 1978 is more potent in language and is more direct than the previous messages. First, the originator invokes South Africa which is described as "one of the finest nations in the world" thereby implying that a nation which fosters apartheid is one to be admired. The message takes on stronger tones when it equates the mixing of races and the effect thereof with the destructive nature of an atomic war. The passage in question reads:

"Where large groups of different races mix in all phases of daily contact race mixing or miscegnation is inevitable. Compared to race mixing an Atomic War with near total destruction is preferable as race mixing is permanent destruction of the higher values of each race whereas Atomic War will leave a remnant however small that can rebuild but a race mixed society is forever doomed."

The direct implication is that even a Third World War is better than the consequences of the commingling of the races. The recommendation is that 40,000,000 Black Americans be deported to Africa and that there be made "special arrangements for the mixed". "Special arrangements" may be as euphemistic as the phrase "final solution" was for genocidal acts which took place during the Second World War. This message identifies the problem as Blacks mixing with Whites but states that there are others responsible for this:

"Communists are behind race mixing and just as Sir Winston Churchill pointed out, the founders of communism were Jewish, likewise, the leaders of the major black organization, the National Association for the Advancement of Coloured People-- NAACP, have been Jewish."

The problem of race mixing is now attributed to communism which is said to have Jewish origins. Accordingly, it becomes apparent that the target group of this propaganda is the Jews.

Tied to the question of race mixing is the fact that the country is in difficult economic straits and facing severe unemployment. Moreover, racial integration has adversely affected the quality of health services:

"Ten years ago, Toronto had some of the finest hospital services in the world. Today, the service has greatly degenerated and now we have many non-white persons in these services while Canadian born nurses often have to search for work in the United States."

Professor Ravault reasons that these statements have a persuasive effect because they link the race problem to particular economic situations in the country which may be adversely affecting the recipient of the message. The tape concludes by appealing to a certain segment of Canadian society:

"If you are born in Canada or a white European immigrant, then remember the time to fight for Canada and if necessary to give your life is now."

The next message was made on July 6th, 1978 and according to Professor Ravault, the target group becomes more defined and the allegation is that there is a conspiracy taking place. A call is made for positive action to put an end to the conspiracy. The conspiracy seems to centre upon the question of whether 6,000,000 Jews in fact died at the hands of Hitler:

"The big lie is that Hitler is said to have gassed 6,000,000 Jews whereas the truth is he never gassed one, although, some did die, but not by gas."

The Respondents invoke two authors of books, the titles of which indicate that their thesis is that this whole matter is a hoax.

This so-called conspiracy to perpetrate this hoax results in the following according to the Respondents:

• "1. It helps to spread communism.

• 2. Jews have received nearly 30 billion dollars and may get 90 billion by the year 2,000.

• 3. It proves that our society is controlled. In other words, unemployment, inflation and the encroaching Third World War are not accidents but programmed phenomenon."

The conspiracy is so entrenched, so the message will have us believe, that it has caused even the Canadian Government to cancel the mail privileges of Mr. Taylor and threatens the existence of the telephone message in question, and any person who dares to claim that the holocaust was a hoax.

Professor Ravault testified that the thrust of the message is that the originators of this alleged conspiracy should be hated since they are responsible for creating three of our most pressing problems, namely, unemployment, inflation and the encroaching Third World War.

The next message in respect of which Professor Ravault testified was recorded on September 27th, 1978. The message indicates that there is a small group of people who are causing the vast majority of Canadians to believe "vicious nonsense". The small group can only be either Jews or communists for it is the spreading of communism and the enrichment of Jews which are the results of the conspiracy. The conspiracy again is referred to as the perpetration of the lie with respect to the execution of 6,000,000 Jews by Nazi Germany. Professor Ravault states that if the recipient of the message cannot directly connect the Jews with the "small group of people" involved in the conspiracy, the subliminal effect will create that impression.

Professor Ravault felt that, psychologically, subliminal persuasion may be even greater than the force of a direct statement. Furthermore, the message urges the recipient to take some action. The persuasive grip, according to Professor Ravault, is greater with respect to the target group when the call is to "wipe out unemployment" or to "break this evil spell" which subliminally may be considered as wiping out Jews or breaking the evil spell of Jews since they are the ones responsible for unemployment. Professor Ravault states that in terms of propaganda technique, it is more acceptable to emphasize aggressive action against a problem about which everyone agrees such as unemployment or inflation but the indirect effect is to create hostile feelings against those who have allegedly created those problems.

The message made on October 4th, 1978 asserts that the Jews are a real threat to the white race and are responsible for a long list of evils confronting Canadian society:

"The white race is under attack. An international conspiracy of communist agents originally financed by the New York Jewish Banking House, Kuhn Loeb, that dominates the Federal Reserve Bank for half a century has mounted an all encompassing campaign against the white race. The prevalence of divorce, abortion, which is really legalized murder, smaller families, adoption of non-white children by whites, homosexuality, sterilization..."

The message also exhorts against race mixing and invokes the bible as an authority. The message also points to another group which is threatening the destruction of the white race:

"Pope after Pope has decreed that Masonry is the deadly enemy of the church and yet today 17 of the most powerful leaders of the Vatican are Masons, 5 of whom are Cardinals."

There is a reference to "Peet Botha" the Premier of South Africa who is described as the world's greatest statesman and again, this would imply admiration for the apartheid policy of South Africa. All of this is considered in the context of violent upheaval:

"World War III has already begun. When the world picks up the pieces in the year 2,000 the white race will emerge triumphant and lead the world to a glorious peace."

There cannot be a glorious peace without there being a glorious war. The message of November 17th, 1978 discusses the problems with the post office and blames the Canadian Postal Union and its outrageous demands for the strike. The head of the Union, Claude Parrot, is described as a communist inspired coward. The message then seems to indicate that there is a link between communism and Jews. The message according to Professor Ravault has a persuasive power because it ties the threat of communism which is caused by Jews to an event which is affecting Canadians and their everyday life, namely the postal strike. The equation then becomes that Jews are communists and communists are responsible for the strike and adversely affecting Canadians in their daily lives. These statements expose Jews to hatred and contempt, according to Professor Ravault.

In the message of January 9th, 1979 there is strong criticism of Trudeau and Levesque but it calls for violent action against "the media controlling forces behind Trudeau and Levesque". Levesque is labled a traitor and Pearson and Trudeau are held responsible for an open door immigration policy which is characterized as "anti-white, anti-British and anti-Canada". Then all of these problems are linked to communism and Jews. There is a reiteration of the statement that it is "the historical fact that communism was Jew founded and Jew controlled". There is also the subliminal suggestion that the media controlling forces are in fact the Jews since they are the ones who control communism. The emphasis is on "control".

The message which was made on February 28th, 1979 attempts to flame a climate of political discontent or instability. There is a reference in a subtle way at first and later in a direct way to the relationship between communism and Jews and that is made through the juxtaposition of the two thoughts:

"The truth is that Canada is only free for communist leaning leftists. Never mention the sacred cow, namely, the word 'Jew'... the Canadian Human Rights Commission has decided to take this message before a special tribunal due to a complaint by the Toronto Zionist Council because we mention that communism was Jew founded and Jew funded."

It is interesting to note that the phrase "Jew control" has been replaced by the phrase "Jew funded" and it leads one to believe that some thought has been given to the use of the word "control' in the previous message since it also described alleged Jewish domination of the media. The most discriminatory remark against Jews in this message is as follows:

"An article in a homosexual paper dealt with the subject of men seducing boys and it was thought to be sufficiently obscene and immoral that the matter was brought to court. The Judge ruled in favour of the homosexuals. In the ensuing blast of criticism, not a single member of the media dared to mention that the Judge Sidney Harris had formerly been the head of the Canadian Jewish Congress for years or that the lawyer for the accused Clayton Ruby was a co-religionist of the Judge."

This paragraph would indicate that because the Judge and the lawyer were Jews it had some effect on the decision which ruled in favour of homosexuals.

The message which was made on May 2nd, 1979 carries the theme a little further. After a subtle and indirect attempt to relate Jewishness with homosexuality a rather strong statement is made to urge listeners of the message to discriminate against Jews. If one followed the thrust of this message very carefully, it could lead the listener to believe that Jews are promoting homosexuality. In the recent past the question of homosexuality was a highly visible issue in Toronto, there having been a murder of a young boy by avowed homosexuals and the ensuing trial, and there had been a much publicized prosecution of individuals responsible for the publication of a controversial article on homosexual relationships.

The last message was made on May 8th, 1979 and it is almost entirely an appeal to violence against groups of people who are only implicitly identified:

"When Aryan man awakens to his racial heritage he will fight the degenerate Babylonian system with a vigor and intensity that will victoriously cleanse this planet forever of certain evil parasites of international finance who cause war, unemployment, inflation and the conditions that breed moral perverts, drug addicts, and besotted alcoholics."

This message is implicit but in view of the historical fact that Babel and Babylonian refers to a confusion of tongues, cultures and races and Babylon is a place to which Jews had been deported, the listener gets an idea of whom the Respondents are talking about. Their reference to "evil parasites of international finance" is a common stereotype for Jews.

Professor Ravault concludes that the majority of these messages when analyzed separately expose listeners to discrimination, hate and contempt against minority groups and more particularly the Jews. When considered in their totality, the exposure to hatred and contempt is even greater.

Not only is there extreme criticism of Jews as being the root cause of many of the economic and political problems facing Canada, but the messages over the period of time that they were telephonically delivered increasingly call for violence against Canadian minorities and especially Jews. The messages contain aggressive overtones in such phrases as: "Remember the time to fight for Canada and if necessary to give your life is now." (message on April 4th, 1978); "fight for Canada" (message on February 28th, 1979); "fight for white Canada" (message on May 2nd, 1979); "the white race will emerge triumphant and lead the world to a glorious peace" (message on October 4th, 1978); "It is time that the labour movement woke up before these Commie inspired goons destroy Canada in an ocean of blood." (messages on November 17th, 1978 and December 19th, 1978); "The time has come to liquidate the media controlling forces behind Trudeau and that traitor Levesque and with heroic, patriotic, action to prove McRuer a liar." (message on January 9th, 1979); "when Aryan man awakens to his racial heritage, he will fight the degenerate Babylonian system with a vigor and intensity that will victoriously cleanse this planet forever of certain evil parasites of international finance..." (message on May 8th, 1979).

Professor Ravault concludes that certain specified groups are targeted for violence and the necessity for violence becomes more persuasive as one listens to the messages in a continuum. 4. DO THE MESSAGES CONTRAVENE THE HUMAN RIGHTS ACT?

Having looked at these messages in some detail, the question then becomes whether they offend s.13(1) of the Canadian Human Rights Act. The fundamental issue is whether the subject matter of the messages "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". Although other minority groups are mentioned in the various tapes, the one particular identifiable group that is prominant is Jews, and it would appear clear that discrimination against them on that basis alone comes within the proscribed grounds of discrimination within the meaning of s.3 of the Act which reads:

"For all purposes of this Act, race, national, or ethnic origin, colour, religion, age, sex, marital status, conviction for which a pardon has been granted and, in matters related to employment, physical handicap are prohibited grounds of discrimination."

Parliament has decreed that the likelihood of exposure of a person or persons to hatred or contempt on these bases alone, is an unacceptable act. The Special Committee on Hate Propaganda in Canada would have gone so far as to make group defamation a criminal offence and recommended legislation prohibiting the making of oral or written statements or of any kind of representations which promote hatred or contempt against any identifiable group. The Committee concluded at page 64 of its Report that such legislation would set, "out as a solemn public judgment that the holding up of identifiable groups to hatred or contempt is inherently likely to dispose the rest of the public to violence against the members of these groups and inherently likely to expose them to loss of respect among their fellow man."

"Hatred" is defined in the Oxford English Dictionary (1971 Edition) as: "active dislike, detestation, enmity, ill-will, malevolence."

And "contempt" is defined as: "the condition of being contemned or despised; dishonour, disgrace."

The possible consequences of being held up to hatred and contempt are susceptibility to violence and loss of respect.

"Expose" is an unusual word to find in legislation designed to control hate propaganda. More frequently, as in the Broadcasting Act Regulations, Post Office Act provisions and in the various related sections of the Criminal Code, the reference is to matter which is abusive or offensive, or to statements which serve to incite or promote hatred.

"Incite" means to stir up; "promote" means to support actively. "Expose" is a more passive word, which seems to indicate that an active effort or intent on the part of the communicator or a violent reaction on the part of the recipient are not envisaged. To expose to hatred also indicates a more subtle and indirect type of communication than vulgar abuse or overtly offensive language. "Expose" means: to leave a person or thing unprotected; to leave without shelter or defence; to lay open (to danger, ridicule, censure, etc.). In other words, if one is creating the right conditions for hatred to flourish, leaving the identifiable group open or vulnerable to ill-feelings or hostility, if one is putting them at risk of being hated, in a situation where hatred or contempt are inevitable, one then falls within the compass of s.13(1) of the Human Rights Act.

The impugned material should be analyzed in the light of these concepts.

The relationship between those who propagate messages such as the ones in question and their audience is aptly described by the Special Committee on Hate Propaganda as follows at p. 29:

"The hate propagandist and his audience: some psychologists tell us that the typical hate propagandist (whether an individual or group) will do his best to be attractive to or to be liked by his prospective converts; to appear to be someone of status (by employing a military title, for example, or by citing eminent authors and books); to adopt a facade of total sincerity and altruism; to appear to possess a certain real or potential power; and to have information which is not available to society as a whole.

The typical item of hate propaganda usually makes some or all of the following points: the sender and the recipient share membership in a group which has been cheated of its birthright. They are God-fearing, decent patriotic citizens of a great country which is being run by traitors and dupes. There is an international conspiracy against goodness and democracy. It must be fought and in the fight there is no middle ground. People in the middle are as bad as the enemy itself. Fire must be fought with fire. The situation is urgent. There is an answer ('Support us with your money and we will grow strong enought to eradicate this menace.'). Many tracts are vague and unspecific as to what action should be taken beyond political and financial support, but an increasing number of those now circulating in Canada make blunt statements of an intention to expel, liquidate, or exterminate the target group.

The hate propagandist often resorts to pseudo-logic and 'Alice in Wonderland' syllogisms: some Jews are known to be Communists; therefore most Jews probably are Communists and communism must be a Jewish plot. He will also attempt to give the impression that no fundamental change of attitude is needed in order to see his point of view: thus murder is described as 'liquidation', robbery as 'recapturing property which has been stolen from us.'. Typically he will associate himself with positive values, opening his argument with ringing references to God, Democracy, Patriotism, Decency, etc. and may even attack such non-values as fascism or violence, in this way seeking to ingratiate himself with his audience before expressing his real opinions. His appeal is almost entirely to the emotions. It is usually one-sided and its conclusions, which are normally repeated several times, are always explicit.

How are people affected by these materials? The great majority of individuals are neither extreme bigots nor devoted liberals. Their initial response to some of the cleverer forms of hate propaganda is neither strongly favourable nor instantly hostile. It is with the degree of their acceptance or acquiescence that we must be concerned.

Most psychologists now accept the theory of general persuadability as a personal characteristic: given the right technique and circumstances, human beings can be persuaded to believe almost anything. Some individuals, of course, are more susceptible than others. Persons of low self-esteem or with a feeling of social inadequacy are consistently more easily influenced than persons without these personality attributes. Highly hostile individuals tend to be less susceptible than persons with little hostility, but on the other hand they also tend to hold generally negative opinions about others, particularly about minorities.

The once widely-held theory that frustration is always the antecedent of aggression has been considerably modified by contemporary psychological research. Frustration can lead to many responses which are not necessarily hostile or aggressive. Yet common sense suggests that an intensely frustrated person is more likely to be receptive to hate literature than someone who takes life as it comes."

The similarities of this description to the messages in question and as analyzed by Professor Ravault are remarkable. After listening and reading these messages and looking at them objectively, we believe that a caller could get the following impressions

• 1. The Respondents and the individuals to whom they are communicating belong to a patriotic and decent group who are being robbed of their birthright by some international conspiracy;

• 2. The conspiracy if traced to its roots is Jewish whether it be one of international finance or communism or perpetrating the "holocaust hoax". The conspirators are corrupt persons seeking only to enrich themselves and to debauch society by encouraging or at least permitting homosexuality, divorce, abortion, racial integration, drug addiction and alcoholism;

• 3. There is urgency to the situation. Drastic action must be taken to rid Canadian society of this menace and it is action which must be taken immediately;

• 4. Public assistance is required. There is a plea to support the fight against this menace by contributing money and encouragement to the Respondents;

• 5. The type of action to be taken against this threatening group is vague and unspecific. But ominously the telephonic voice uses such expressions as "liquidate, liberate, wipe out, fight, cleanse";

• 6. There is a circular logic to the messages which may have some effect upon the recipient of the message. As the Special Committee on Hate Propaganda at page 195 put it:

• "It is typical of hate messages to contain the following syllogism: 'Some Jews are communists; therefore, all Jews are communists and communism is a Jewish plot. Similarly, some Jews are wealthy, therefore, all Jews are wealthy and the Jews control the economy. Communists oppose segregation; therefore, integrationists are communists.'"

• 7. There is a certain appeal in the messages as they relate to such emotional topics as exploitation, conspiracy, sexual deviation, fraud, etc.

The messages, we believe, are designed to incite hatred and contempt for Jews. What other rationale can there be for the dissemination of such vile material? But that does not end the inquiry. The intention of the communicator is not determinant of the issue of whether the content of the messages is likely to expose Jews to hatred or contempt. As Judge McMahon said in R v Buzzanga and Durocher (December 23, 1977 Unreported) at p. 13:

"... the meaning of a message resides in the receiver, based on his own conceptions as opposed to the initial intent of the sender."

We are concerned with neither the sender's intention nor the actual effect upon listeners of the expression of opinion but rather the likely impact of such expression of opinion and the feelings that may be generated against the victims of the propaganda.

It must now be determined whether the messages in fact are likely to expose the individuals referred to in the messages and Jews as a whole to hatred or contempt. There has been much sociological research relating to the individual's susceptibility to persuasive communication and the type of individuals who are most influenced by such messages. As mentioned earlier in these reasons, some sociologists say that there is a correlation between an individual's feeling of social inadequacy and low self-esteem and his susceptibility to this type of message; overly hostile individuals may be influenced by hate literature to the extent that such individuals already agree with their contents; frustration in employment and social relationships generally may make an individual more receptive to hate literature.

In interpreting s.13 of the Canadian Human Rights Act, however, one must be concerned with the possible susceptibilities of those individuals who may dial the phone number in question. They may have learned of the number from the cards distributed by the Respondents which provide no clue of the type of message that they will hear. It may well be that by deciding to dial this phone number they already have a preconceived notion of the type of message that they will hear. If an individual comes upon this phone number in the telephone book where it is described as "White Power Message" or learns of it by reading it on a spray painted hoarding, usually associated with some racial epithet, one could conclude that that particular caller already possesses feelings of hate and contempt for minority groups. Those feelings may be confirmed and inflamed further, however, by messages which have an authoritative flavour to them. But in any event, the personality makeup and the preconceived feelings of the actual callers are not in issue in the interpretation of s.13. The question is whether the matter communicated "is likely to expose a person or persons to hatred or contempt". It may be that certain individuals find the message so laughable or repulsive that it is the sender of the message who is exposed to hate and contempt. On the other hand, it is reasonable to conclude that there is a likelihood that some individuals may well harbour feelings of hatred and contempt for the minority groups singled out in the messages after listening to them. As is stated in the report by the Special Committee on hate and at page 200:

"... the frequently encountered assumption that a person is either all bigot or all liberal, and therefore either totally receptive to hate propaganda or not at all, is a fallacious one. Rather, differences in attitudes, personality, and persuasibility form a continuum with a great mass of individuals lying between the extremes that we label as liberal or bigot. The issue of great or social concern is the reaction of the great mass of people who are neither extreme bigots nor devoted liberals, whose attitudes run the gamut from mild ethnocentrism through indifference to moderate liberalism. It is their greater or lesser acceptance or at least acquiescence which poses the potential threat to a democratic system of government, and the freedom of its citizens. Our concern, then, is not what makes one an authoritarian bigot, but rather, what determines the degree of acceptance to persuasion attempts."

Each tape or message should be considered in its entirety in determining whether it has the effect proscribed by s.13(1) of the Canadian Human Rights Act. R v Buzzanga and Durocher supra, was a prosecution under s.281.2 of the Criminal Code and in considering whether the message in question wilfully promoted hatred against the French Canadian public in Essex County in Ontario, Judge J.P. McMahon examined the message as whole. He said at page 11:

"It is the view of the court that the handbill cannot and should not be dissected and considered paragraph by paragraph. It was distributed as one complete, indivisible, communication and its cumulative effect is what must be determined."

We think this is a sensible approach and have adopted it. Upon listening to the tapes and reading the messages, it is hard to believe that a rational individual in 1979 would take these incoherent meanderings seriously. But are individuals any more rational than those Germans affected by the comparable rantings of Adolph Hitler and his supporters? Mr. Paul Goldstein and Mrs. Sabina Citron, both Jewish survivors of the death camps related to the Tribunal how vilifying propaganda similar to the messages in question had stereotyped them and their families and members of their ethnic group as being the embodiment of all that was evil. Mr. Goldstein described graphically the ultimate result of such propaganda:

"This caused me to spend my childhood years as a hunted animal in hiding, in starvation and fear of death. It caused my mother and father to be deported; it caused all my relatives living in Europe, cousins and nieces even younger than I was, uncles and aunts, grandparents to be torn from their modest daily lives and to disappear in the Nazi death machine never to reappear again."

Professor Ravault testified that a listener to these messages, who has some knowledge of contemporary European history must be struck by a sense of "dÈja vu". He felt that the parallels were remarkable.

Although, these messages did not mention Nazi Germany or the Nationalist Socialist Party or the Third Reich by name, there are certain references which lead one to believe that the communicator finds their policies and principles praiseworthy. In the September 27th, 1978 tape, the Respondents say: "It was the work ethic that saved Germany". More telling is the comment in the May 8th, 1979 message "This awakening began in Europe in the twenties." That corresponds with the rise of the German National Socialist Party. Moreover, the communicator comes to the defence of Hitler to whom the atrocities are attributed by stating that he "did not gas a single Jew."

Other parallels abound. The following ideals of Nazi Germany are repeated in these messages:

• a) the making of robust youth, free of sexual perversion and drug and alcoholic addictions;

• b) the necessity for racial purity;

• c) economic difficulties are created by racial integration;

• d) the Jews are international conspirators who have used communism and capitalism and racial integration to profit themselves;

• e) Jews should be denied entry into the professions or public service. In the Respondents' messages Jews are said to be unfit to do anything that requires them to take an oath;

• f) violent action should be taken against them.

Although many of these messages are difficult to follow, there is a recurring theme. There is a conspiracy which controls and programmes Canadian society; it is difficult to find out the truth about this conspiracy because our books, our schools and our media are controlled by the conspirators. The conspirators cause unemployment and inflation; they weaken us by encouraging perversion, laziness, drug use and race mixing. They become enriched by stealing our property. They have founded communism which is responsible for many of our economic problems such as the postal strike; they continue to control communism and they use it in furtherance of the conspiracy. The conspirators are Jews.

Professor Emil Fackenheim, a distinguished Professor of Philosophy and author of books on Jewish history and theology, testified that these opinions are not new in any way. They are the modernized version of the medieval view of Jews who are the devil incarnate whose conspiratorial objective in life is to destroy Christendom. This is the kind of antisemitism which has been around for ages and which led to such horrendous consequences in the 1930's and 1940's.

It would appear from Mr. Taylor's cross-examination of witnesses and his argument that he was attempting to establish the truth of what he said about Jews in his tape recorded statements. Strange as it may sound, the establishment of truth is not in issue in this case. Unlike the statutory defences set out in s.281.2(3) of the Criminal Code which make truth a defence to a criminal prosecution for public incitement of hatred against any group distinguished by colour, race, religion, or ethnic origin, no equivalent defence is available in the Canadian Human Rights Act. Parliament has deemed that the use of the telephone for this kind of discriminatory message is so fundamentally wrong, that no justification for the communication can avail the Respondents. The sole issue then is whether the telephonic communications of the Respondents are likely to expose a person or persons to hatred or contempt.

Our initial reaction to this material was that it was crudely written and repugnant, not credible, and perhaps not dangerously harmful. But we have moved to a position of concern as we have considered this matter and the evidence adduced. Our feeling is in accord with Judge McMahon who said of the hate tract that he considered in the Buzzanga case at p.13:

"I am satisfied that the vast majority of the residents of this county would view the contents of this document with distaste if not outright revulsion. However, there is that certain segment in every community whose views would be reinforced and increased by the message."

We share the same distrust of the rationality of mankind expressed by the Special Committee on Hate Propaganda in Canada at p. 8 of its Report:

"In a number of ways, we are less confident in the 20th Century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them. In the 18th and 19th Centuries, there was a widespread belief that man was a rational creature, and that if his mind was trained and liberated from superstition by education, he would always distinguish truth from falsehood, good from evil. So Milton, who said 'let truth and falsehood grapple: who ever knew truth put to the worse in a free and open encounter'.

We cannot share this faith today in such a simple form. While holding that over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstrations of truth put before them and forsake the good they know. The successes of modern advertising, the triumphs of imprudent propaganda such as Hitler's, have qualified sharply our belief in the rationality of man. We know that under strain and pressure in times of irritation and frustration, the individual is swayed and even swept away by histerical, emotional appeals. We act irresponsibly if we ignore the way in which emotion can drive reason from the field.

Diatribes like the ones before us eventually gave rise to the most extreme form of hatred and contempt for Jews in Germany in the 1930's and 1940's. We need no other crucible for us to be satisfied that the themes of the Respondent's telephone utterances, which bear a marked resemblance to the propaganda of Goebbels and Hitler, are likely to expose Jews to hatred or contempt.

Specifically, with respect to s.13, we believe that on the balance of probabilities, which is the burden of proof upon the Complainants, all of the essential ingredients have been met. The Respondents constitute a person or a group of persons acting in concert. The Respondent, The Western Guard Party is not incorporated but there is no question that it constitutes a group of persons who have organized themselves under this name. They have a symbol. They have a letterhead. They have a post office box number. They have telephone lines in their name. They are listed in the telephone book. They have a bank account and infrastructure with officers and leaders. They hold themselves out as a unit. They therefore come within the meaning of the phrase "group of persons acting in concert".

We hold that Mr. Taylor and The Western Guard Party have communicated telephonically or have caused to be so communicated, repeatedly, messages in whole or in part by means of facilities of a telecommunication undertaking within the legislative authority of Parliament. Although some of the messages by themselves are somewhat innocuous, the matter for the most part that they have communicated, we believe, is likely to expose a person or persons to hatred or contempt by reason of the fact that the person is identifiable by race or religion. In particular, the messages identify specific individuals by name, Mayor Mel Lastman, Judge Sidney Harris, Mr. Clayton Ruby, and we believe that the remarks about those individuals have a likelihood of exposing them to hatred or contempt, merely on the basis that they are said to be Jewish. Moreover, we hold that the messages in question not only expose identified individuals but persons generally to hatred or contempt by reason of the fact that those persons are identifiable as Jews. We therefore find that the complaints are substantiated.

The question of relief remains. This Tribunal is empowered by the Canadian Human Rights Act to impose only one type of remedial measure. Sections 42(1) and 41(2)(a) provide:

• "42(1) Where a Tribunal finds that a complaint related to a discriminatory practice described in section 13 is substantiated, it may make only an order referred to in paragraph 41(2)(a)."

• "41(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, subject to subsection (4) and section 42, it may make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in such order any of the following terms that it considers appropriate;

• (a) that such person cease such discriminatory practice and, in consultation with the Commission on the general purposes thereof, take measures, including adoption of a special program, plan or arrangement referred to in subsection 15(1), to prevent the same or a similar practice occurring in the future."

5. ORDER

We therefore order the Respondents to cease their discriminatory practice of using the telephone to communicate repeatedly the subject matter which has formed the contents of the tape-recorded messages referred to in the complaints.

DATED at Toronto this 20th day of July, 1979.

J. FRANCIS LEDDY - Chairman

SIDNEY N. LEDERMAN

ROSE VOLPINI

APPENDIX

The following transcripts of the messages are in the form submitted by Counsel for the Commission and Mr. Taylor:

SCHEDULE DATE OF MESSAGE

1. August 17, 1977

2. September 10, 1977 to October 28, 1977

3. October 29, 1977 to November 2, 1977

4. April 4, 1978

5. July 1978

6. July 6, 1978

7. August 7, 1978

8. September 27, 1978

9. October 4, 1978

10. November 17, 1978

11. December 19, 1978

12. January 9, 1979

13. February 28, 1979

14. May 2, 1979

15. May 8, 1979--END--

Hate messages - Zundel v. Canada

Canadian human Rights Act

Hate messages

(excerpted from Michael Geist, Internet Law in Canada: Captus Press (2000) pp 141 146)

• 13. [1] It is a discriminatory practices for a person or 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.

• [2] Subsection [1] does not apply in respect of any matter that is communicated in whole or in part by means of the facilities of the broadcasting undertaking.

• [3] For the purposes of this section, no owner or operator of a telecommunication undertaking communicates causes to be communicated any matter described in subsection [1] by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons with transmission of that matter.

Zundel v. Canada [Attorney-General] (F.T.C.T.D., 1999) 67 C.R.R. (2d) 54.)

The complainants alleged that Mr. Zundel was violating s. 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 by causing hate messages to be communicated through computer website known as the "Zundelsite", which can be readily accessed through the Internet. The server for the website, and the person who manages it and posts material on it are located in California. The complainants took objection to material on the "Zundelsite" claiming that the scale of the Holocaust had been greatly exaggerated; they alleged that this material was likely to expose persons of the Jewish faith or ethnicity into a tree or contempt.

In this application for judicial review Mr. Zundel challenges on five grounds the commission's decision to request the appointment of a tribunal, and the jurisdiction of the tribunal to inquire into the complaints. First, the commission's decision to request the appointment of a tribunal is vitiated by bias as a result of statements made by the Deputy Chief Commissioner prior to the filing of the complaints and to her subsequent participation in the commission's decision to refer them for adjudication. Second, the tribunal has no jurisdiction to inquire into these complaints because material posted on the website in the form of text and graphics is not communicated "telephonically" as required by section 13. Third, a tribunal has no jurisdiction to hear and determine these complaints because the server for the website is located outside Canada, as is the person responsible for selecting what is posted on it, who is the only person able to enter the material.

The issues raised by Mr. Zundel challenge the legal authority of the commission and the tribunal to regulate material available on the Internet, which is fast becoming one of the most powerful media of mass communication. The benefits to be obtained from awaiting the tribunal's considered determination of questions of this complexity, novelty and importance clearly outweigh the costs to Mr. Zundel, and to the public purse, of permitting the administration process to run its course before the matter is fully reviewed by the court.

[i] " Communicate Telephonically"

It is a discriminatory practice under section 13 [1] for a person or group of persons to "communicate telephonically or to be caused to be for communicated. . . By means of the facilities of a telecommunication undertaking within the legislative authority of Parliament" material commonly known as hate messages.

Counsel for Mr. Zundel submitted that material was only "communicated telephonically", and so capable of falling within the scope of Section 13 [1], if the communication involved the transmission of the human voice through the medium of the telephone and telephone wires. He relied heavily on dictionary definitions of "telephone" and "a telephonic" to support this interpretation. While sounds can be transmitted between computers, it was agreed that only text and graphics were available on the "Zundelsite".

Furthermore, it was argued, an interpretation of Section 13(1) that includes messages heard on the telephone, but not material obtained by computer from a web site, is also supported by a policy considerations. In particular, those who access the "Zundelsite" have available to them there material that challenges the "revisionists" view of the Holocaust advanced by Mr. Zundel. In other words, "the Zundelsite" is a less powerful medium of communication than a pre-recorded message on a telephone answering machine because it allows those interested to enter into an active exchange of views, and to gain access to a range of opinions.

Counsel from Ms. Citron, on the hand, submitted that the adverb "telephonically" should be interpreted broadly so as to include the Internet, on the ground that most users given access to by dialling up and using a modem that is plugged into a telephone line outlet, and that information passes in digital form along telephone wires from the "Zudelsite" server to the computer of the person accessing it. The fact that sound, indicating the human voice, is not being transmitted should not be conclusive.

In support of for her position counsel relied on a broader definition of the word "tell telephonically" contained in Newton's Telecom Dictionary, a not particularly authoritative source. In addition, counsel pointed out that if "telephonically" were given the meeting for which the respondent contended, its presence in the Act would still serve a purpose because it would, for example, exclude communication by satellite.

More importantly, counsel relied on the principle that human rights legislation, been quasi-constitutional in nature, should be given a broad and liberal interpretation. Accordingly, in order to tackle the mischief at which Section 13 is aimed, namely the dissemination of hate messages, Section 3(1) should be interpreted in a manner that accomplishes this goal by including this powerful new medium which relies in part on the telephone system. Section 13(2) specifically exempts from Section 13(1) material that is communicated by the facilities of the broadcasting undertaking this is because broadcasting is regulated by another federal agency the CRTC.

There is little doubt that when section 13 was first enacted in 1977 Parliament almost certainly did not intend the adverb "telephonically" to include communication via the Internet because it was not then a widely available medium. However, on a progressive, as opposed to a static interpretation of the Act, a court could conclude that "telephonically" should be construed in light of both the overall purpose of the legislation as set out in Section 2, and technological developments.

In Canada (Attorney-General) v. Mossop (1993), it is true, the court refused to interpret "family status" as including same-sex couples, largely because a contemporaneous amendment to include sexual orientation as a prohibited ground of discrimination had been defeated in the House of Commons. However, there is no evidence that Parliament consider the application of Section 13 to the Internet, and rejected it.

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.

Indeed, the Supreme Court of Canada has regularly endorsed a broad and positive approach to the interpretation of human rights legislation in recognition of its quasi-constitutional status. This is another important reason for no longer regarding Bell v. Ontario, (Human Rights Commission), supra, as reliable president; in 1970 the court attached at least as much weight to the respondents proprietary rights as to the complainants right not to be the subject of discrimination, which at that time had no quasi-constitutional status.

Therefore, on a consideration of the language of the Act, the evidence and the interpretive approach to be taken to human rights legislation, it cannot be said that the position adopted by the commission on the interpretation of the word "telephonically" lacks a rational basis. Whether it is correct in law is not for me to decide in this proceeding; that will be fore the court before which any application for judicial review of the tribunal's decision is brought. Meanwhile, the tribunal must be permitted to make findings of fact about technical aspects of internet communication on the evidence before it, and to give its considered interpretation of Section 13 in light of the arguments of counsel and its own understanding of the purposes of the Act.

[ii] The Extraterritorial Issue

Counsel for Mr. Zundel submitted that section 13 does not permit the commission and the tribunal to regulate material posted on websites that are located beyond Parliament's to geographic reach, when the person in control of the section and posting of the material is also outside Canada. The fact that interested individuals may access the "Zundelsite" from within Canada was, he submitted, insufficient to justify the extraterritorial reach that the commission was purporting to give to the Canadian Human Rights Act.

The position of the respondents and of the commission on this issue was simple. They submitted that Section 13 (1) prohibits people in Canada from communicating hate messages are causing them to be communicated. Mr. Zundel is present in Canada, and the commission maintains that, while he may not have posted material on the "Zundelsite" himself, and indeed, may be incapable tactically of doing so, in fact he controlled the selection of the material that was posted, including many of his own writings, some of which had originally appeared in printed form.

Evidence was tended to show that the "Zundelsite" was under the supervision of Dr. Ingrid Rimland, "the webmaster", who not only shared Mr. Zundel's views of the Holocaust, but also was paid for her services. The commission argued that it could be inferred from the communications between Mr. Zundel and Dr. Rimland, from the nature of the relationship between them, and from Mr. Zundel's references to "our 'Zundelsite'", "my webmaster", that Mr. Zundel in fact exercised such a substantial degree of control over what Dr. Rimland posted on the "ZUndelsite" that he could be said to be causing the material on the "Zundelsite" to be communicated.

I agree with the proposition that a person in Canada causes material to be communicated for the purpose of Section 13 if that person effectively controls the content of material posted on a website that is maintained from on-site Canada.

Whether Mr. Zundel exersized the requisite degree of control over the content of the "Zundelsite" to bring him within Section 13 is a question with a very significant factual component. There was sufficient evidence before the commission on this issue to enable it to conclude that an inquiry into the complaints by a Human Rights Tribunal was warranted. It should be left to the tribunal to decide whether the evidence adduced at the hearing by the parties is sufficient to establish that Mr. Zundel was causing the material to be communicated for the proposal Section 13.

[iii] " Cause to be communicated"

Counsel argued on behalf of Mr. Zundel that he could not be found to be in violation of Section 13 [1] by reason of having caused the communication of material on the website to which the complaints related. His argument was that those who accessed the "Zundelsite" from their computers and called up the material that they wished to see caused it to be communicated; until then it was simply stored in electronic files.

This is the merest sophistry and provides no basis for the court to intervene in the proceedings now before the tribunal. It would follow from the counsels submission that the person who opens the morning's newspaper causes its content to be communicate to her, rather than the journalists who wrote the items that are published and printed in the newspaper.

[................]

Canada [Human Rights Commission] v. Canadian Liberty Net [1998] 1 S. C. R. 626

In December 1991, the Canadian Rights Commission (the "Commission") received five complaints regarding telephone messages made available by an organization advertising itself as "Canadian Liberty Net". Callers to the Liberty Net phone number were offered a menu of telephone messages to choose from, by subject area. These the messages included denials of the existence or extent of the Holocaust; assertions that non-white "aliens " are importing crime and problems into Canada, and the implicit suggestion that violence could be helpful to "set matters straight"; criticism of an alleged "Kosher tax" on some foods to ensure that some percentage could can be certified as Kosher; complaints about the alleged domination of the entertainment industry by Jews; and number of messages decrying the alleged persecution of well known leaders of the white supremacist movement. After having investigated the content of the messages, the Commission requested on January 20th, 1992 that a Human Rights Tribunal [the "Tribunal"] be empanelled to decide whether these messages were in violation of Section 13 [1] of the Human Rights Act, which makes it a "discriminatory practice... to communicate telephonically... any matter that is likely to expose a person or persons to hatred or contempt... on the basis of a prohibited ground of discrimination". Section 3 of the Act includes race, national or ethnic origin, colour, and religion as prohibited grounds of discrimination.

On January 27, 1992, one week after the request to the Tribunal, the Commission filed an originating notice of motion before the Federal Court of Canada, Trial Division, seeking an injunction, enjoining Liberty Net, including Tony McAleer and any other associates in the Liberty Net organization from making available any phone messages "that are likely to expose presses to hatred or contempt by reason of the fact that those persons are identifiable on the basis of race, national or ethnic origin, colour or religion", until a final order of the Tribunal is rendered. On the February fifth and sixth, the motion was argued, and on March 3rd, 1992, Muldoon J. granted the injunction sought. Upon further submissions of the parties, Muldoon J. varied the content of his order slightly, although those charges are not germane to any controversy in this appeal.

A Tribunal was empanelled in response to the Commission's request and held hearings for a total of five days in May and August 1992. The panel reserved its decision for more than a year, finally rendering a decision on September 9th, 1993. Thus, the injunction order of Muldoon J. was in effect for almost 18 months, from March 3rd, 1992 until September 9th, 1993.

On June 5th, 1992, the Commission investigator telephoned the Liberty Net phone number and heard a message referring callers to a new number of the Canadian Liberty Net "in exile" where they could "say exactly what we want without officious criticism and sanction". This new number was rented from a telephone company in the state of Washington, in the United States. Callers to that number then had access to a similar menu of messages as had been available prior to the issuance of Muldoon J. order of March 3rd. Indeed, Liberty Net admitted before the Court of Appeal that some of those messages where specifically covered by the injunction, but they contended that the messages were not in breach of the order because they emanated from a source outside Canada, and thus outside of the jurisdiction of the Federal Court.

. . . .

The appellants second ground of attack is that the contempt order is inapplicable because it seeks to restrain conduct taking place outside Canada, and, therefore, beyond the territorial jurisdiction of the Federal Court of Canada. This argument is misguided. The violation being impugned here is not the existence of the phone number in the United States without more, but rather the combined effect of that American phone number with the offending messages, and the referral message to that phone number on Liberty Net's old line. The gravamen of the violation of the order is the communication of the offending messages; that communication takes place by virtue of the advertisement on the Canadian phone line and the broadcast of the message on the American phone line. The former element took place "by means of the facilities of a telephone communication undertaking within the legislative authority of Parliament", as provided for under Section 13 of the Human Rights Act. As long as at least part of an offense has taken place in Canada, Canadian courts are competent to exert jurisdiction.

Human Rights Commission v. Canadian Liberty NetA-339-92 (T-209-92) Canadian Liberty Net and Tony McAleer (alias Derek J. Peterson) (Appellants)

v.

Canadian Human Rights Commission (Respondent)

Indexed as: Canada (Human Rights Commission)v. Canadian Liberty Net (C.A.)

Court of Appeal, Pratte, Strayer and Linden JJ.A." Vancouver, December 6, 1995; Ottawa, January 25, 1996.

Federal Court jurisdiction " Trial Division " Where complaint filed with CHRC, no authority in FCTD under Human Rights Act or Federal Court Act to issue interlocutory injunction before Human Rights Tribunal has rendered decision " Federal Court Act, ss. 25, 44 considered " Human Rights Act, s. 13 not nourishing bare statutory grant of general authority of Federal Court to grant injunction.

Human rights " CHRA, s. 13 (proscribing telephonic hate messages) considered " Where complaint filed with CHRC, FCTD without jurisdiction to issue interlocutory injunction before Human Rights Tribunal has made finding of violation of Act, s. 13(1).

Injunctions " Telephonic hate messages " Where complaint filed with CHRC, FCTD without jurisdiction to issue interlocutory injunction before Human Rights Tribunal has made finding of violation of Human Rights Act, s. 13(1).

In December 1991, complaints were filed with the Canadian Human Rights Commission under section 13 of the Canadian Human Rights Act alleging that Canadian Liberty Net operated a telephonic hate message system. The Commission requested that a Human Rights Tribunal be established to hear the complaints and filed an originating notice of motion in the Federal Court, Trial Division to obtain an interlocutory injunction to enjoin the appellants from communicating such messages until a final order was rendered by the Tribunal. The Trial Division granted this application in a formal order on March 27, 1992. The Tribunal began its hearings in May 1992, but did not render its decision until September 1993. It determined that subsection 13(1) of the Human Rights Act had been breached and issued a cease and desist order against the appellants under subsection 54(1) of the Act. This was an appeal from the March 27 injunction order.

This appeal raised the important question as to whether courts should assume authority to enforce statutory prohibitions by interlocutory injunctions where the legislature has specifically provided a scheme of administrative enforcement which does not include interim remedies.

Held, the appeal should be allowed.

Per Strayer J.A.: The question as to the Court's authority to grant an injunction in these circumstances could be disposed of on the basis of whether there was any implied grant of authority for any court to intervene in the operation of the Canadian Human Rights Act at this stage.

The conditions of Federal Court jurisdiction were stated by the Supreme Court of Canada in ITO"International Terminal Operators Ltd. v. Miida Electronics Inc. et al.: (1) statutory grant of jurisdiction; (2) existing body of federal law essential to disposition of case; (3) "law of Canada".

While there was no dispute that the Federal Court Trial Division could in appropriate cases grant the remedy of interlocutory injunction, that it had in personam jurisdiction over residents of Canada and that the relevant body of federal law, section 13 of the Canadian Human Rights Act, was a valid enactment by Parliament, the issue to be addressed was whether there had been a statutory grant of authority to issue an injunction in these circumstances and whether the relevant body of federal law could be said to "nourish" that grant.

Section 44 of the Federal Court Act could not be taken to authorize the grant of an interlocutory injunction where there was no underlying legal right to be enforced. Section 25 granted the Trial Division original jurisdiction between subject and subject "in any case in which a claim for relief is made or a remedy is sought under . . . the laws of Canada".

The question became whether an interlocutory injunction in these circumstances was a relief or remedy provided by the Canadian Human Rights Act and whether the Act could be said to "nourish" the grant of authority, in the abstract, to issue injunctions. Section 13 created no right in the Commission or anyone else to obtain a prior restraint of such communications pending a final determination of their legality. In Canada (Human Rights Commission) v. Taylor , only four of the seven judges of the Supreme Court of Canada found that the limitation on freedom of expression in section 13 of the Canadian Human Rights Act was justified under section 1 of the Charter and declared the section valid. Such a narrow margin militates against there being an implied authority for the courts to issue interlocutory orders to stop communications prior to a full hearing by a tribunal. In the absence of any express conferral of jurisdiction on the Federal Court to grant an interlocutory injunction pending a determination by a tribunal under subsection 13(1), the availability of a "relief" or "remedy", "by virtue of" this law of Canada (in the terminology of section 25 of the Federal Court Act ) could not be implied. Nor could the existence of the prohibition against telephonic hate messages in the Canadian Human Rights Act give rise to some implied right of action based in federal law, even if not expressly stated in the Act itself, a right which could be enforced by injunction. Whereas this Court has specifically held that it cannot make a finding that there has been a discriminatory practice within the meaning of the Act for purposes of issuing a permanent injunction, the logic of the respondent's position would equally lead to the conclusion that the Trial Division can issue an injunction in the case of any discriminatory practice proscribed by the Canadian Human Rights Act, whether real or apprehended.

In the instant case, the Tribunal took more than one year to render a decision after hearing the evidence. If tribunals cannot be caused to act more quickly and interim relief is required, then the Act should be amended to authorize either the Tribunal or the Federal Court Trial Division to issue interlocutory orders. Whether this would be justifiable under section 1 of the Charter is another matter.

This finding was not an endorsation of the right of provincial superior courts to intervene by issuing interlocutory injunctions in such circumstances. The reasons for concluding that the Canadian Human Rights Act neither expressly nor implicitly contemplated any interlocutory remedies would equally preclude the intervention of provincial superior courts.

Per Pratte J.A.: The jurisdiction of the Trial Division, if it exists, must flow from sections 25 and 44 of the Federal Court Act.

Section 44 specifies that, in matters otherwise within its jurisdiction, the Court may grant the kinds of relief mentioned in the section. The source of the jurisdiction of the Court, therefore, must be found in section 25. That section empowers the Court to hear and decide "any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court . . . has jurisdiction in respect of that claim or remedy".

Two conditions must be met: first, a claim must be made under a law of Canada and, second, there must be no court having jurisdiction in respect of the claim. As to the first condition, the Canadian Human Rights Act contains nothing indicating that Parliament ever contemplated that injunctions be issued to stop discriminatory practices while complaints were pending before the Human Rights Commission or a Human Rights Tribunal. As to the second condition, if by prohibiting certain discriminatory practices Parliament has impliedly authorized that injunctions be issued "to prevent a flouting of the law at an interlocutory stage", that implied jurisdiction could certainly be exercised by the provincial superior courts.

statutes and regulations judicially considered

Canada Labour Code, R.S.C., 1985, c. L-2.

Canadian Bill of Rights, S.C. 1960, c. 44, ss. 1(d), 2.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b).

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 8, 9, 10, 11, 12, 13, 50(1), 52, 53(2), 54(1), 58.

Criminal Code, R.S.C. 1970 c. C-34, ss. 281.1 (as enacted by R.S.C. 1970, (1st Supp.), c. 11, s. 1), 281.2 (as enacted, idem).

Criminal Code, R.S.C., 1985, c. C-46, ss. 318, 319.

Divorce Act, R.S.C. 1970, c. D-8.

Exchequer Court General Rules and Orders, R. 242.

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 25.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 25, 44.

Federal Court Rules, C.R.C., c. 663, R. 469(3).

Law and Equity Act, R.S.B.C. 1979, c. 224, s. 36.

Ontario Human Rights Code, R.S.O. 1970, c. 318.

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1.

Supreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66, s. 25(8).

cases judicially considered

applied:

ITO"International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; Chief Constable of Kent v. V, [1983] Q.B. 34 (C.A.); R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; (1983), 153 D.L.R. (3d) 9; [1983] 3 W.W.R. 97; 23 CCLT 121; 45 N.R. 425; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; (1981), 124 D.L.R. (3d) 193; 14 B.L.R. 157; 17 C.C.L.T. 106; 2 C.H.R.R. D/468; 81 CLLC 14,117; 22 C.P.C. 130; 37 N.R. 455; Lodge v. Minister of Employment and Immigration, [1979] 1 F.C. 775; (1979), 94 D.L.R. (3d) 326; 25 N.R. 437 (C.A.); Nintendo of America Inc. v. 131865 Canada Inc. (1991), 36 C.P.R. (3d) 346; 41 F.T.R. 236 (F.C.T.D.).

distinguished:

B.M.W.E. v. Canadian Pacific Ltd. (1994), 93 B.C.L.R. (2d) 176 (C.A.).

considered:

Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A., [1979] A.C. 210 (H.L.); Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; (1990), 75 D.L.R. (4th) 577; 13 C.H.R.R. D/435; 3 C.R.R. (2d) 116; Winmill v. Winmill, [1974] 1 F.C. 686; (1974), 47 D.L.R. (3d) 597; 5 N.R. 159 (C.A.); confg [1974] 1 F.C. 539; (1974), 45 D.L.R. (3d) 619 (T.D.).

referred to:

Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 504; (1992), 56 F.T.R. 42 (T.D.); Canada (Human Rights Commission) v. Canadian Liberty Net, [1994] 3 F.C. 551 (C.A.); Canada (Human Rights Commission) v. Heritage Front, [1994] 1 F.C. 203; (1993), 68 F.T.R. 161 (T.D.); R. v. Keegstra, [1990] 3 S.C.R. 697; (1990), 114 A.R. 81; [1991] 2 W.W.R. 1; 77 Alta. L.R. (2d) 193; 61 C.C.C. (3d) 1; 3 C.P.R. (2d) 193; 1 C.R. (4th) 129; 117 N.R. 284; United Steelworkers of America, Local 5795 v. Iron Ore Company of Canada (1984), 45 Nfld. & P.E.I.R. 150; 5 D.L.R. (4th) 24; 132 A.P.R. 150 (C.A.); Burkart v. Dairy Producers Co-operative Ltd. (1990), 74 D.L.R. (4th) 694; 87 Sask. R. 241 (C.A.); Lamont v. Air Canada et al. (1981), 34 O.R. (2d) 195; 126 D.L.R. (3d) 266; 3 C.H.R.R. D/1128; 23 C.P.C. 169 (H.C.); Saskatchewan (Human Rights Commission) v. Bell (1991), 88 D.L.R. (4th) 71; [1992] 2 W.W.R. 1; 96 Sask. R. 296; 16 C.H.R.R. D/52; 92 CLLC 17,010 (Q.B.).

authors cited

Canada. House of Commons Debates, Vol. III, 2nd Sess., 30th Parl., February 11, 1977, at p. 2976.

Halsbury's Laws of England, Vol. 9, 4th ed., London: Butterworths, 1974.

Sharpe, Robert J. Injunctions and Specific Performance, 2nd ed., Toronto: Canada Law Book, 1993.

Spry, I.C.F. The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 4th ed., Toronto: Carswell Co., 1990.

APPEAL from an interlocutory injunction order issued by a judge of the Trial Division (Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 155; (1992), 90 D.L.R. (4th) 190; 14 Admin. L.R. 294; 9 C.R.R. (2d) 330; 48 F.T.R. 285) prohibiting the appellants from communicating hate messages by telephonic means pending a final order by a Human Rights Tribunal. Appeal allowed.

counsel:

Douglas H. Christie for appellants.

Joseph J. Arvay, Q.C. for respondent.

solicitors:

Douglas H. Christie, Victoria, British Columbia, for appellants.

Arvay, Finlay, Victoria, British Columbia, for respondent.

The following are the reasons for judgment rendered in English by

Pratte J.A.: While I agree with my brother Strayer's elaborate reasons for judgment, I would rather reach the same result by a shorter route.

It is common ground that the jurisdiction of the Trial Division in this case, if it exists, must flow from sections 25 and 44 of the Federal Court Act [R.S.C., 1985, c. F-7].

Section 44, as I read it, does not enlarge the jurisdiction of the Court but merely specifies that, in matters otherwise within its jurisdiction, the Court may grant the kinds of relief mentioned in the section.1 The source of the jurisdiction of the Court, therefore, must be found in section 25.

That section, contrary to section 44, clearly confers a new jurisdiction on the Court. It empowers it to hear and decide "any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court . . . has jurisdiction in respect of that claim or remedy".

In order for that grant of jurisdiction to be operative, two conditions must be met: first, a claim must be made under a law of Canada and, second, there must be no court having jurisdiction in respect of the claim. These requirements are clearly not fulfilled here. It is said that the claim is made under the Canadian Human Rights Act [R.S.C., 1985, c. H-6], but that Act contains nothing indicating that Parliament ever contemplated that injunctions be issued to stop discriminatory practices while complaints were pending before the Human Rights Commission or a Human Rights Tribunal. And if one assumes, as the Trial Judge has done, that by prohibiting certain discriminatory practices Parliament has impliedly authorized that injunctions be issued "to prevent a flouting of the law at an interlocutory stage", that implied jurisdiction could certainly be exercised by the provincial superior courts.

I would dispose of the appeal in the manner suggested by my colleague.

* * *

The following are the reasons for judgment rendered in English by

Strayer J.A.:

Relief Requested

This is an appeal of an injunction order issued by a judge of the Trial Division on March 27, 1992, prohibiting the appellants "from communicating or causing to be communicated, by telephonic means" certain messages. The order set out at length the recorded messages which had been available at the appellants' number by any one who dialled it, and prohibited their continued communication pending the disposition of complaints concerning such messages by a Human Rights Tribunal. The order went beyond this and prohibited the appellants from

. . . communicating or causing to be communicated by telephonic means any messages which denigrate, disparage, or mock persons by reason of their race, ancestry, national or ethnic origin, colour or religion, or just for being who they are or what they are in terms of ancestry or religion, (such as Jews or non Europeans, or non-European-descended persons). . . .

Facts

In December, 1991 a number of complaints were filed with the Canadian Human Rights Commission under section 13 of the Canadian Human Rights Act2 alleging that the appellant Canadian Liberty Net operated a telephonic hate message system. Section 13 provides as follows:

13. (1) 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.

(2) Subsection (1) does not apply in respect of any matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.

It was alleged in the complaints that persons dialling Canadian Liberty Net's number in Vancouver could hear messages denigrating Jewish and non-white persons. According to the findings of the Trial Judge this telephone number was advertised in a small journal which claimed a readership of "12,000 and growing". By dialling this number one could listen to a "menu" of messages and choose to hear any or all of those messages by touching the right number.

Sometime between the filing of these complaints and the reasons of the learned Trial Judge issued on March 3, 1992 [[1992] 3 F.C. 155 (T.D.)] the Canadian Human Rights Commission had obviously considered the complaints and had requested that a Human Rights Tribunal be established to hear the complaints. The Tribunal had been named but had not yet met. Meanwhile on January 27, 1992 the Commission filed an originating notice of motion in the Federal Court, Trial Division to obtain an interlocutory injunction to enjoin the appellants from communicating or causing to be communicated such messages until a final order was rendered by the Human Rights Tribunal after hearing the complaints. The Trial Division granted this application in reasons dated March 3, 1992 and by entry of a formal order on March 27, 1992, the order now under appeal. The appellants had by then already filed a notice of appeal from that decision, albeit that no formal judgment had been entered.

The Tribunal did not begin its hearings until May 25, 1992. The Tribunal held a hearing of 5 days, partly in May and partly in August, 1992, finishing its hearing on August 27, 1992. It then reserved its decision which was not rendered for more than one year afterward, on September 9, 1993, with the result that the interlocutory order governed matters for almost eighteen months. The Tribunal decision determined that subsection 13(1) of the Canadian Human Rights Act had been breached and a cease and desist order was issued against the appellants under subsection 54(1) of that Act.

In the meantime the Commission applied on June 11, 1992 in the Federal Court, Trial Division for the issuance of a show cause order alleging contempt of court by the appellants through violations of the interlocutory injunction of March 27, 1992. They were found guilty of contempt on July 9, 1992 [[1992] 3 F.C. 504 (T.D.)] and sentence was imposed on August 26, 1992. That conviction and sentence were also appealed and that appeal was heard at the same time as the hearing of the appeal in this case from the interlocutory injunction [see [1996] 1 F.C. 787 (C.A.)].

The Tribunal having issued a cease and desist order in September, 1993 the respondent Commission applied on March 28, 1994 to this Court to have the injunction appeal quashed, essentially on the grounds of mootness and that the appeal was vexatious and conducted in bad faith by the appellants. A panel of this Court rejected that motion on May 27, 1994.3 The panel was of the view that the question was not moot and that the outcome could possibly have some effect on the decision in the contempt appeal. It also observed that even if the appeal were moot the issue of the jurisdiction of this Court which it raised was important and would probably arise again.4 Therefore it considered that the appeal should proceed.

Issues

In my view this appeal raises an important question as to whether courts should assume authority to enforce statutory prohibitions by interlocutory injunctions where the legislature has specifically provided a scheme of administrative enforcement which does not include interim remedies.

The appellants raise several issues in asserting that the interlocutory injunction should be set aside. For reasons which will appear below, I think it only necessary to refer to their argument that the Federal Court has no authority under the Canadian Human Rights Act or the Federal Court Act to issue an interlocutory injunction before a Human Rights Tribunal has made a finding of a violation of subsection 13(1) concerning telephonic hate messages.

This matter of authority was also raised at the hearing before the learned Trial Judge. He based his findings that the Federal Court Trial Division could grant an injunction in these circumstances in part on a consideration of the powers of a superior court "to prevent apprehended flouting of the law" and to grant "free-standing injunctions" regardless of whether an action has been commenced in the Court or indeed could be brought, and regardless of whether the Court could give a permanent remedy. In his view it matters not that a court could not make a final determination of the question: it can still make an interim determination and issue an injunction if it apprehends that the law is not being observed. I believe these issues need not be addressed at length as the matter can be disposed of on the question of whether there was any implied grant of authority for any court to intervene in the operation of the Canadian Human Rights Act at this stage.

I shall therefore address the question of whether there was any relief or remedy authorized by federal law in these circumstances. The Trial Judge in this respect relied on sections 25 and 44 of the Federal Court Act5 which will be discussed below.

Analysis

The Trial Judge commenced his analysis of the Court's authority by relying on the majority judgment written by McIntyre J. in the Supreme Court decision in ITO"International Terminal Operators Ltd. v. Miida Electronics Inc. et al.6 He stated the conditions of Federal Court jurisdiction as follows:

1. There must be a statutory grant of jurisdiction by the federal Parliament.

2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.

3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867 .

It is not in dispute that in principle the Federal Court Trial Division can in appropriate cases grant the remedy of an interlocutory injunction, and that it has in personam jurisdiction over those such as the appellants who are resident in Canada. Nor is it disputed that the relevant body of federal law, section 13 of the Canadian Human Rights Act, is a valid enactment by Parliament relating to the use of a federally-regulated telephone undertaking. The issue to be addressed, in my view, was whether there has been a statutory grant of authority to issue an injunction in these circumstances and whether the relevant body of federal law can be said to "nourish" that grant. It is, perhaps, debatable as to whether this is strictly speaking a "jurisdictional" issue or whether it is a question of law, namely the correct interpretation of the rights and remedies provided by the Canadian Human Rights Act.

The Trial Judge found the necessary statutory grant of authority, including apparently a regime of rights prescribed by a federal law which would nourish that grant. As there is no such express grant of authority in the Canadian Human Rights Act to issue such an injunction it is necessary to consider the provisions of the Federal Court Act relied on by the Trial Judge for this purpose. Sections 25 and 44 of the Federal Court Act provide as follows:

25. The Trial Division has original jurisdiction, between subject and subject as well as otherwise, in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court constituted, established or continued under any of the Constitution Acts, 1867 to 1982 has jurisdiction in respect of that claim or remedy.

. . .

44. In addition to any other relief that the Court may grant or award, a mandamus, injunction or order for specific performance may be granted or a receiver appointed by the Court in all cases in which it appears to the Court to be just or convenient to do so, and any such order may be made either unconditionally or on such terms and conditions as the Court deems just.

He also apparently considered that the general grant of authority to issue injunctions was, in this case, nourished by the provisions of section 13 of the Canadian Human Rights Act which prohibits the use of federally-regulated telephones for communicating hate messages.

Dealing first with section 44 it appears to me that this provision had its origins in the history of the different remedies available in English courts of common law and equity prior to the Supreme Court of Judicature Act, 1873.7 The purpose of that Act was to amalgamate into the Supreme Court of Judicature the many existing courts of common law and equity and to merge their systems of remedies. Injunctions were of course originally available only in courts of equity. Subsection 25(8) of the Supreme Court of Judicature Act, 1873 provided as follows:

25. . . .

(8.) A mandamus or an injunction may be granted or a receiver appointed by an interlocutory Order of the Court in all cases in which it shall appear to the Court to be just or convenient that such Order be made; and any such Order may be made either unconditionally or upon such terms and conditions as the Court shall think just . . . .

It will be noted that the language is in many respects identical to that of section 44 of the Federal Court Act. The 1873 provision was confined to interlocutory injunctions while section 44 is not so confined. At one time it was observed in the House of Lords8 that the fact that subsection 25(8) only authorized interlocutory injunctions meant that there had to be an action "actual or potential" to which an "interlocutory" order would be incidental. Section 44 of the Federal Court Act does not on its face limit the grant of injunctions to actions real or potential in the Court. However, Rule 469 of the Federal Court Rules [C.R.C., c. 663] governs the issue of interlocutory injunctions and subsection 469(3) provides as follows:

Rule 469 . . . .

(3) The plaintiff may not make an application under this Rule before commencement of the action except in case of urgency, and in that case the injunction may be granted on terms providing for the commencement of the action and on such other terms, if any, as seem just.

It is not, however, necessary for present purposes to decide whether the injunctive power can only be exercised in the context of an action.9 The more fundamental issue, it appears to me, is whether section 44 can be taken to authorize the grant of an interlocutory injunction where there is no underlying legal right to be enforced. In England the successor legislation continuing the 1873 provision, which was limited to authorizing interlocutory injunctions, was later modified so as to remove that limitation. Counsel for the respondent, and the Trial Judge, relied on the reasons of Lord Denning M.R. in Chief Constable of Kent v. V10 where he found this amendment to have eliminated the need for either an action or a legal or equitable right to be enforced as prerequisites to the issue of an interlocutory injunction. In his view the only remaining precondition appeared to be that the applicant have a "sufficient interest" to ask for an injunction. It is important to note, however, that neither of the other two judges constituting the panel in this case agreed with the learned Master of the Rolls on this point. Both were of the view that such injunctions can only be issued "in the enforcement or protection of a legal or equitable right"11 As Donaldson L.J. said [at page 45]:

Were it otherwise, every judge would need to be issued with a portable palm tree.

I believe the same limitation must be read into the grant of the injunctive power in section 44 of the Federal Court Act.12

The more critical question then is the meaning of section 25, particularly where it grants the Trial Division original jurisdiction between subject and subject

25. . . . in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada . . . . [Emphasis added.]

In other words, was an interlocutory injunction in these circumstances a relief or remedy provided by the Canadian Human Rights Act? Can that Act be said to "nourish" the grant of authority, in the abstract, to issue injunctions? It is agreed on all sides that the only specific relief or remedy provided by the Act is the processing of a complaint under subsection 13(1) by the Commission, including investigation and possible settlement efforts, with an ultimate possibility of reference to a Human Rights Tribunal. The Tribunal is obliged to conduct a hearing and if it is satisfied after a full hearing that there has been a discriminatory practice within the meaning of subsection 13(1) it can, pursuant to subsections 53(2) and 54(1) of the Act, order that the discriminatory practice cease (there also being a possibility that the Tribunal might order some kind of affirmative action program where relevant). The Act specifically precludes a tribunal from ordering compensation in these cases and tribunals cannot impose penalties in any case. In spite of these carefully limited sanctions should it nevertheless be assumed that Parliament, at least implicitly, has authorized interlocutory measures to stop the communication of messages before they are determined by a tribunal to be in contravention of subsection 13(1)? To answer this question I believe it is necessary to look at the context in which subsection 13(1) was adopted.

On its face this subsection appears somewhat anomalous in relation to the rest of the Act. The Act generally deals with discrimination in the provision to the public of goods, services, facilities or accommodation, commercial premises or residential accommodation, and in employment matters. The only other provisions in the Act dealing with messages are sections 8 and 12 which involve the use of application forms or notices which would indicate an intention to commit a discriminatory practice in respect of one of these matters. Subsection 13(1) is the only provision dealing with communications as such. It just applies to communications by telephone, not by broadcasting or newspapers. It is limited to repeated communications, and then only to such communications as are likely to expose a person or persons to hatred or contempt by reason of them being identifiable on the basis of a prohibited ground of discrimination (i.e. race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability, or conviction for which a pardon has been granted). It appears that section 13 was designed to deal with a special problem for which it was felt no other law was entirely adequate.

The ordinary laws of defamation would not normally prevent such messages as they do not defame any particular person. Further the courts have traditionally been reluctant to grant interlocutory injunctions with respect to apprehended defamation, in part because these have been regarded as a prior restraint of freedom of speech. Traditional "balance of convenience" tests for the issue of injunctions are sometimes thought not to be appropriate in the case of attempts to enjoin defamation, the preference apparently having been to remedy defamation after it is proven.13

Further, it appears that the Criminal Code provisions concerning hate propaganda were thought not to apply to this kind of message. It is interesting to note that on second reading of the bill which resulted in the Canadian Human Rights Act the Minister of Justice had this to say concerning present section 13.

As a further protection against racism, the bill contains a measure proscribing the dissemination of hate over the telephone. I think those of us who were here in parliament at the time, felt that we had dealt with this issue in the amendments to the Criminal Code which were passed relating to hate, but new practices have emerged. Under this bill the sending of repeated hate messages over federally-regulated telephones would be prohibited. The measure is more rigorous than section 281.2 of the Criminal Code, but it avoids"or I have endeavoured to draft it in such a way as to avoid"interference with legitimate expression of opinion.14

This indicates not only the "mischief" which the section was intended to control"hate telephone messages"but also the "mischief" it was designed to avoid"undue restraint on freedom of expression. The hate propaganda sections15 of the Criminal Code had been adopted in 1970 prior to the adoption of the Canadian Human Rights Act, which came into force on July 14, 1977. Those sections dealt with advocacy of genocide, communication in public places of statements inciting hatred, and communication of such statements elsewhere other than in private conversations. The sections specifically provided for a number of defences, and of course successful prosecutions for statements like those involved in the present case would require proof of intent16 and proof beyond a reasonable doubt.

Presumably then section 13 of the Canadian Human Rights Act was adopted to extend limitations on hate messages beyond that which the law was then thought to provide, as indicated by the Minister. The section is not criminal law but a regulation of the use of a federally-controlled undertaking. Parliament adopted a measured, deliberate, approach involving the use of the investigation and mediation provisions of the Canadian Human Rights Act together with a possible Tribunal disposition. While this regime did not involve proof of intent it provided sanctions which could be imposed only after a full hearing by an independent human rights tribunal, sanctions which included no penalty and no compensation but essentially only the prohibition of future such communications. As the Supreme Court observed of this regime in Canada (Human Rights Commission) v. Taylor:17

. . . the conciliatory nature of the human rights procedure and the absence of criminal sanctions make s. 13(1) especially well suited to encourage reform of the communicator of hate propaganda.

No prior restraint of hate communications was specifically provided by Parliament.

In short, Parliament sought to control acts which were probably not otherwise prohibited, howsoever reprehensible, and it only imposed limited controls. It created no right in the Commission or anyone else to obtain a prior restraint of such communications pending a final determination of their legality.

It is apparent from the Minister's statement that this measured approach was thought to be necessary in order to respect, as much as possible, freedom of speech. It is true that section 13 was adopted before the advent of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] but it was enacted when the Canadian Bill of Rights18 was in force. The Canadian Bill of Rights [section 2] required every Act of Parliament to "be so construed and applied as not to abrogate, abridge or infringe . . . any of the rights or freedoms herein recognized and declared". Among those freedoms was, in paragraph 1(d ), "freedom of speech". Parliament was obviously trying to adopt a regime for some measure of control over telephone hate messages which the Commission, human rights tribunals, and the Federal Court on judicial review, could, as they were obliged to do by the Canadian Bill of Rights , construe and apply in a manner consistent with freedom of speech.19 That freedom of speech was a legitimate concern has since been made evident by the 1990 decision of the Supreme Court of Canada in the Taylor case.20 There the validity of section 13 was under attack as infringing the freedom of expression guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms. All seven judges agreed that section 13 does indeed infringe freedom of expression. However four of the seven found section 13 to be justified under section 1 of the Charter. While noting that section 13 was broader in its application than the Criminal Code hate propaganda provisions, by not requiring an intent to incite hatred or contempt, the majority observed that nevertheless the procedures and sanctions provided by the Canadian Human Rights Act involved a less intrusive limitation on freedom of speech. As Dickson C.J. stated:

. . . 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 the freedom of expression by s. 13(1) is not unduly harsh, and that the third requirement of the Oakes proportionality approach is satisfied.21

However three of the seven judges found the limitation on freedom of expression to be disproportionate and would have declared section 13 to be invalid.

The result in the Supreme Court, I believe, demonstrates the reason for the very cautious approach taken by Parliament in section 13 to remedy telephone hate messages within the context of the remedial provisions of the Canadian Human Rights Act. It also militates against there being an implied authority for the courts to issue interlocutory orders to stop communications prior to a full hearing by a tribunal. An interlocutory injunction can be obtained, after all, on affidavit evidence and merely on the basis that a "serious issue" has been raised as to the propriety of the messages. The violation of an injunction based on such evidence involves criminal sanctions, something not contemplated by the Act until a full hearing by a tribunal, its determination of a violation of subsection 13(1), the issue of a prohibitory order, and the violation of that order. Only at this stage does the Act contemplate contempt of court proceedings being taken.

For these reasons I find it difficult, in the absence of any express conferral of jurisdiction on the Federal Court to give an interlocutory injunction pending a determination by a tribunal under subsection 13(1), to imply the availability of a "relief" or "remedy", "by virtue of" this law of Canada (in the terminology of section 25 of the Federal Court Act ). That is, the Canadian Human Rights Act does not, in my view, nourish the bare statutory grant of general authority of this Court to employ the remedy of injunction. It creates no right in anyone which can be enforced by an interlocutory injunction.

I believe the situation is not unlike that facing this Court in Winmill v. Winmill.22 That case concerned the possible jurisdiction of the Federal Court Trial Division to grant a divorce under the Divorce Act.23 That Act created the right to divorce and specified the grounds, matters undoubtedly within Parliament's authority. It gave jurisdiction to certain provincial courts to grant divorce provided that either the petitioner or the respondent had been ordinarily resident in that province for a period of at least one year. As the parties in that case had not been so resident, the plaintiff brought an action in the Federal Court Trial Division [Winmill v. Winmill, [1974] 1 F.C. 539] relying on section 25 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10], it being argued that since no other court in Canada had jurisdiction to grant a divorce to parties who had not been resident for at least one year in a province, the Federal Court Trial Division must have that power. The Trial Division and the Federal Court of Appeal rejected that proposition, Thurlow J. stating as follows:

. . . there is no substantive law of divorce a vinculo except that enacted by the Divorce Act, and the substantive right created by that Act is expressly made subject to section 5, which authorizes the presentation of a petition only to particular provincial superior courts and prescribes as conditions that the petitioner or spouse be resident in the province for a year immediately before the presentation of the petition. In my opinion (assuming for this purpose that divorce jurisdiction could otherwise be presumed to be vested in the Federal Court, which is at best doubtful), it "specially appears" from this that divorce was intended by Parliament to be out of the jurisdiction of the Federal Court, and this interpretation is, I think, reinforced by the special provision of paragraph 5(2)(b ) which confers jurisdiction on the Federal Court in the particular circumstances therein defined.24

(The "particular circumstances" referred to, where the Federal Court was given jurisdiction, involve situations where both parties present a petition for divorce in different provinces on the same day.) Similarly in the present case while the Canadian Human Rights Act provides a recourse or remedy through the processing of a complaint under subsection 13(1) and the ultimate issue of a prohibitory order by a tribunal issued after a full hearing. It is not to be inferred from section 25 of the Federal Court Act that a similar, though interim, remedy is obtainable in the Federal Court Trial Division.

Nor can the existence of the prohibition against telephonic hate messages in the Canadian Human Rights Act give rise to some implied right of action based in federal law, even if not expressly stated in the Act itself, a right which could be enforced by injunction. First, it may be observed generally that the breach of a statute does not automatically give rise to a right of action.25 More specifically, it has been held by the Supreme Court that human rights legislation does not by implication give rise to new civil causes of action where a comprehensive remedial scheme is provided. In the case of Seneca College of Applied Arts and Technology v. Bhadauria26 there was alleged discrimination by way of denial of an employment opportunity on the alleged ground of racial origin. The alleged victim sued in tort for damages and the Ontario Court of Appeal held that a new tort had been created at common law based on the public policy expressed in the Ontario Human Rights Code [R.S.O. 1970, c. 318], legislation very similar to the Canadian Human Rights Act. The Supreme Court on appeal held that there was no such right of action created: the legislature of Ontario had provided quite specifically for both the right in law not to be discriminated against, and the remedies, including compensation, for the denial of such a right. As Laskin C.J. stated:

In the present case, the enforcement scheme under The Ontario Human Rights Code ranges from administrative enforcement through complaint and settlement procedures to adjudicative or quasi-adjudicative enforcement by boards of inquiry. The boards are invested with a wide range of remedial authority including the award of compensation (damages in effect), and to full curial enforcement by wide rights of appeal which, potentially, could bring cases under the Code to this Court. The Ontario Court of Appeal did not think that this scheme of enforcement excluded a common law remedy, saying in the words of Wilson J.A. (which I repeat):

Nor does the Code, in my view, contain any expression of legislative intention to exclude the common law remedy. Rather the reverse since s. 14(a) appears to make the appointment of a board of inquiry to look into a complaint made under the Code a matter of ministerial discretion.

I would have thought that this fortifies rather than weakens the Legislature's purpose, being one to encompass, under the Code alone, the enforcement of its substantive prescriptions.27

The logic of the respondent's position would equally lead to the conclusion that the Trial Division can issue an injunction in the case of any discriminatory practice proscribed by the Canadian Human Rights Act, whether real or apprehended. However this Court has specifically held that it cannot make a finding that there has been a discriminatory practice within the meaning of that Act for purposes of issuing a permanent injunction. As Le Dain J.A. stated:

The Court cannot make a finding that there has been a discriminatory practice within the meaning of the Canadian Human Rights Act. The jurisdiction to make such a finding has been confided to the specialized agency and tribunals provided for by the Act. Such a finding involves a question of fact to be determined on the basis of an investigation by the Commission and a hearing by a Human Rights Tribunal.28

While this case did not involve a request for an interlocutory injunction it appears to me that the logic upon which it is based"namely that a specialized function has been given to the Tribunal to determine whether there was a discriminatory practice"is equally relevant to the question of whether the Federal Court Trial Division can issue an interim order merely based on the view that a serious issue has been raised as to the possibility of there being a discriminatory practice.

Needless to say, the conclusion that the Federal Court Trial Division cannot issue an interlocutory injunction in these circumstances is in no way an endorsation of the disgusting and offensive messages in question, which have now been found after a full hearing to violate subsection 13(1). I have no doubt that their continued communication pending the deliberations of a Human Rights Tribunal was frustrating to the victims and is harmful to the public interest in some measure. But the remedy for this type of situation might better be sought in an accelerated tribunal process. In the present case, for example, the Tribunal took more than one year to render a decision after hearing the evidence, a matter of some surprise considering that the basic facts as to the communication of the messages seem not to have been in dispute. If it is the considered view that tribunals cannot be caused to act more quickly in conducting a hearing and rendering a final decision, and that interim relief is required, then the Act should be amended to authorize either the Tribunal or the Federal Court Trial Division to issue interlocutory orders. Whether such measures would be considered justifiable under section 1 of the Charter might require further judicial consideration.

Nor is this finding an endorsation of the right of provincial superior courts to intervene by issuing interlocutory injunctions in such circumstances. The reasons expressed above for concluding that the Canadian Human Rights Act neither expressly or implicitly contemplated any interlocutory remedies in these circumstances would equally preclude the intervention of provincial superior courts. I recognize that there is some jurisprudence supportive of a provincial superior court role in supplementing statutory remedies. The most notable of these is B.M.W.E. v. Canadian Pacific Ltd.,29 a case strongly relied on by counsel for the respondent. There the British Columbia Court of Appeal upheld a decision of the British Columbia Supreme Court issuing an injunction to restrain the Canadian Pacific from altering its work schedule until a grievance under a collective bargaining agreement had been determined by an arbitrator. The collective agreement owed its validity to the Canada Labour Code [R.S.C., 1985, c. L-2] which provided no such interlocutory relief pending arbitration. I would make four comments on this case. Firstly, the Court of Appeal put some stress on the fact that the parties had agreed to arbitration, suggesting the Court was essentially assisting the carrying out of that agreement, a situation unlike the present case. Secondly, this decision is presently under appeal to the Supreme Court, leave having been granted.30 Thirdly, there is jurisprudence in other provinces to a different effect concerning the supplementation of statutory tribunal remedies by provincial court injunctions. In United Steelworkers of America, Local 5795 v. Iron Ore Company of Canada31 in the Newfoundland Court of Appeal, and in Burkart v. Dairy Producers Co-operative Ltd.32 in the Saskatchewan Court of Appeal, it was held that the courts could not intervene with an interlocutory injunction where the substantive resolution of a matter had been assigned to a statutory board. More specifically in Lamont v. Air Canada et al.33 the Ontario High Court held that a provincial superior court cannot grant an injunction to preserve the status quo while the plaintiff pursues a remedy in a federal statutory body (the Canadian Human Rights Commission) over which the provincial court has no control. It was stated there that the purpose of an interlocutory injunction is to preserve a right which the plaintiff may enforce in the court granting the injunction. Fourthly, the decision of the B.C. Court of Appeal in B.M.W.E. is based in part on section 36 of the Law and Equity Act of British Columbia34 which is similar to section 44 of the Federal Court Act, a provision which for reasons already expressed does not have the effect of giving a court jurisdiction where there is no legal or equitable right to protect.35

One other point requires comment. It was suggested by the learned Trial Judge in his exhaustive reasons that the Commission stands in the place of the Attorney General of Canada as the representative of the public interest, entitled to seek the enforcement of the law in court. As I understand the law, the Commission is an independent body which stands apart from the Attorney General of Canada. It takes no directions from the Attorney General and indeed may find itself as a party in opposition to the Attorney General in judicial review proceedings where, not uncommonly, departments of the Government of Canada are the object of Commission enforcement policies. Whether the Commission as such ever had standing to seek this injunction was not addressed in argument and I make no finding on that point.36 Certainly the only express authority given to the Commission to appear as a party is confined to tribunal hearings or to court applications to force disclosure of information to Commission investigators.37 Analogies to discretionary grants of standing to those seeking declarations of unconstitutionality are not relevant to standing to seek injunctions.38

I am therefore of the view that the Trial Division incorrectly interpreted the Canadian Human Rights Act as implicitly authorizing the grant of an interlocutory injunction. While the Court had jurisdiction in personam in respect of these appellants and while there was a valid federal law relevant to the issues, that law did not "nourish" the grant of an injunction in such circumstances.

Disposition

I am therefore of the view that the appeal should be allowed and the interlocutory injunction issued March 27, 1992 should be set aside.

As the appellants have succeeded on this appeal they are entitled to their costs here and in the Trial Division. However this Court, in another decision today in the same proceeding concerning the appeal from a contempt of court conviction for the violation of this injunction, has confirmed the original sentence as to the fines payable by the appellants. According to the court file, these fines have not been paid although the fines were not stayed by this Court at the time it stayed the order of imprisonment pending appeal of the contempt conviction. In my view it is open to the Court to preclude the appellants from taking any further step in this proceeding until they have paid the outstanding fines for contempt of court.39 I would therefore add to an order granting costs to the appellants the condition that they can take no further step in this Court in this proceeding, including obtaining an appointment for taxation or serving a copy of their bill of costs, until the fines have been fully paid.

Linden J.A.: I agree.

1 My brother Strayer correctly traces the origin of s. 44 back to the Supreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66. It is perhaps not without interest to mention that a more proximate source of that section is Rule 242 of the Exchequer Court General Rules and Orders, a rule which certainly did not confer any jurisdiction on the Court. That rule read as follows immediately before the coming into force of the Federal Court Act:

RULE 242

Injunctions and Receivors

An injunction may be granted or a receiver appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made, and only such order may be made ex parte or on notice. . . .

2 R.S.C., 1985, c. H-6.

3 [1994] 3 F.C. 551 (C.A.).

4 The Trial Division has issued similar interlocutory injunctions in at least one other case: see Canada (Human Rights Commission) v. Heritage Front, [1994] 1 F.C. 203 (T.D.).

5 R.S.C., 1985, c. F-7.

6 [1986] 1 S.C.R. 752, at p. 766.

7 (U.K.), 36 & 37 Vict., c. 66.

8 Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A., [1979] A.C. 210 (H.L.), at p. 254.

9 By virtue of s. 18 of the Federal Court Act, the Court specifically has the power to issue injunctions in judicial review applications without an action being required.

10 [1983] Q.B. 34 (C.A.).

11 Ibid., at p. 45.

12 See generally Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (4th ed., 1990), at pp. 323-326; Sharpe Injunctions and Specific Performance (2nd ed.), at paras. 1.1100-1.1140.

13 Sharpe, ibid., at paras. 5.40-5.70.

14 House of Commons Debates, Vol. III, 2nd Sess., 30th Parl., February 11, 1977, at p. 2976.

15 Ss. 281.1, 281.2, adopted in R.S.C. 1970 (1st Supp.), c. 11, s. 1, now ss. 318, 319 of the Criminal Code, R.S.C., 1985, c. C-46.

16 See e.g. R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 773-775 in relation to the offence of communicating statements witfully to promote hatred as proscribed by s. 319(2).

17 [1990] 3 S.C.R. 892, at p. 924.

18 S.C. 1960, c. 44.

19 This was recognized by the majority of the Supreme Court in Taylor, supra note 17, at p. 930.

20 Supra, note 17.

21 Ibid., at p. 940.

22 [1974] 1 F.C. 686 (C.A.).

23 R.S.C. 1970, c. D-8.

24 Supra note 22, at p. 690.

25 ;R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. There may be cases where the Attorney General can, however, seek an injunction to prevent breaches of some statutes. See Sharpe, supra note 12, at paras. 3.190 to 3.390.

26 [1981] 2 S.C.R. 181.

27 Ibid., at p. 194.

28 ;Lodge v. Minister of Employment and Immigration, [1979] 1 F.C. 775 (C.A.), at p. 784.

29 (1994), 93 B.C.L.R. (2d) 176 (C.A.).

30 July 20, 1995, S.C.C. Bulletin 1995, at p. 1231.

31 (1984), 45 Nfld. & P.E.I.R. 150 (C.A.).

32 (1990), 74 D.L.R. (4th) 694 (Sask. C.A.).

33 (1981), 34 O.R. (2d) 195 (H.C.).

34 R.S.B.C. 1979, c. 224.

35 Supra, notes 7 to 12 and accompanying text.

36 But see Saskatchewan (Human Rights Commission) v. Bell (1991), 88 D.L.R. (4th) 71 (Sask. Q.B.), at pp. 94-99 where it was held that although injunctions are specifically authorized to prohibit conduct proscribed by the Saskatchewan Human Rights Code [S.S. 1979, c. S-24.1], the Commission has no sufficient interest to support standing to seek such an injunction.

37 Canadian Human Rights Act, ss. 50(1), 51, 58.

38 See e.g. Sharpe, supra, note 12, at para. 3.600.

39 Nintendo of America Inc. v. 131865 Canada Inc. (1991), 36 C.P.R. (3d) 346 (F.C.T.D.); see generally 9 Halsbury's Laws of England (4th ed., 1974), at para. 106.keywords:

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