B'NAI BRITH V. W.J. HARCUS
Decision rendered December 16, 1992
CANADIAN HUMAN RIGHTS ACT
R.S.C., 1985, c. H-6 (as amended)
HUMAN RIGHTS TRIBUNAL
LEAGUE FOR HUMAN RIGHTS
B'NAI BRITH CANADA (MIDWEST REGION)
MANITOBA COALITION AGAINST RACISM AND APARTHEID, INC.
WADE TUDOR WILLIAMS
MANITOBA INTERCULTURAL COUNCIL
- and -
CANADIAN HUMAN RIGHTS COMMISSION
- and -
MANITOBA KNIGHTS OF THE KU KLUX KLAN
- and -
WILLIAM (BILL) JAMES HARCUS
TRIBUNAL: Keith C. Norton, Q.C., B.A., LL.B. - Chairman
Roger Bilodeau - Member
Raj Saunder - Member
APPEARANCES: David Matas
Counsel for Complainants
Margaret Rose Jamieson
Counsel for Canadian Human Rights Commission
DATES & PLACES December 14, 15 and 16, 1992
OF HEARING: Winnipeg, Manitoba
This inquiry was held in Winnipeg over a period of three days commencing on Monday, December 14, 1992. At the conclusion of submissions by Counsel on December 16,1992, the Tribunal made an oral decision finding that the complaint had been substantiated and issued an order directing the respondents to cease the discriminatory practice.
What follows are the reasons for that decision.B. THE COMPLAINTS
These complaints are brought by one individual and three organizations under subsection 13(1) of the Canadian Human Rights Act. The complainants are Mr. Wade Tudor Williams, The League for Human Rights B'Nai Brith Canada (Midwest Region), Manitoba Coalition Against Racism and Apartheid, Inc. and Manitoba Intercultural Council.
Subsection 13(1) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (CHRA) provides:
"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 the person or those persons are identifiable on the basis of a prohibited ground of discrimination."
Subsection 3(1) of the Act sets out the following prohibited grounds of discrimination: race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted.
In addition to these proscribed grounds, the Ontario Court of Appeal recently made an order "declaring that the Canadian Human Rights Act, R.S.C. 1985, c. H-6 be interpreted, applied and administered as though it contained 'sexual orientation' as a proscribed ground of discrimination in s. 3 of the Act" : see Haig v. Canada (Minister of Justice) (August 6, 1992), available in QUICKLAW at , O.J. No. 1609.
The Minister of Justice subsequently announced that the decision would not be appealed and would stand as the law of Canada.
The eight complaints of the four complainants are identical in substance and form. Each complainant filed a separate complaint against William (Bill) James Harcus and the Manitoba Knights of the Ku Klux Klan.
The first complaint of the Manitoba Coalition Against Racism and Apartheid, Inc. signed by Helmut-Harry Loewen, Chairperson, and dated December 16, 1991 reads:
"I allege that the Manitoba Knights of the Ku Klux Klan has acted in concert to communicate telephonically, or has caused to be communicated telephonically, on May 9, 1991 and continuing and in particular on July 24, 1991, by means of the facilities of the Manitoba Telephone System, a telecommunication undertaking that is within the authority of Parliament, a recorded telephone message that is likely to expose persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of race, colour, national or ethnic origin and religion, contrary to section 13(1) of the Canadian Human Rights Act."
The tapes and transcripts of the messages which were filed as exhibits in support of the complaints cover a period extending from May 9, 1991 to December 12, 1991.C. THE RESPONDENTS
Neither respondent William James Harcus nor the Manitoba Knights of the Ku Klux Klan appeared at the hearing of these complaints.
Ms. Diane Desormeaux, the Tribunal Officer, filed Statutory Declarations by Glenn Thain and Trevor Sallis (Exhibits T-3, T-4) providing proof of service upon William James Harcus and the Manitoba Knights of the Ku Klux Klan of Appointments of a Human Rights Tribunal, a copy of the Canadian Human Rights Act and a pamphlet on the Human Rights Tribunal on May 22, 1992.
Furthermore, Ms. Desormeaux filed two Affidavits of Service by Charles Smith (Exhibits T-5, T-6) providing proof of service upon an adult male at the address 402 Wardlaw Avenue in the City of Winnipeg, said address known to be the residence of William James Harcus and the address out of which the Manitoba Knights of the Ku Klux Klan operates. In this instance, the documents were a Notice of Hearing for each respondent.
The Tribunal was satisfied by the evidence that the respondents did have notice of the proceedings and were absent as a matter of choice.
An adjournment was taken to allow for late arrival or a last minute change of heart on the part of Mr. Harcus or the Klan but neither made an appearance.
The Tribunal then proceeded with the inquiry.D. THE ISSUES
In coming to a determination as to whether the complaints under subsection 13(1) have been substantiated, there are several issues to be examined:
• (1) For the legislation to apply and for this Tribunal to have jurisdiction, it must be established that the communication took place "in whole or in part by means of a telecommunication undertaking within the legislative authority of Parliament".
• (2) There must be sufficient evidence to establish, on a balance of probabilities, that the named respondents William James Harcus and the Manitoba Knights of the Ku Klux Klan did "communicate or cause to be communicated repeatedly" the subject messages.
• (3) It must be established that 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".
E. DISCUSSION OF THE ISSUES
1. Were the messages communicated, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament?
The Manitoba Telephone System is a provincial utility subject to regulation by the Manitoba Public Utilities Board.
The Director of Regulatory Affairs for the Manitoba Telephone System gave extensive evidence regarding the inter-relationships between the Manitoba Telephone System and other telecommunication systems within Canada and internationally.
He pointed out that there are many points of interconnection across Manitoba borders to other parts of Canada and to the United States. The interconnections are by way of cable, microwave, digital radio system, fibre optic trunk lines and radio systems.
Manitoba Telephone System (MTS) also has extensive networking agreements: to the west with Sask Tel, to the east with Bell Canada and with Stentor (previously Telecom Canada) through which they are connected to ATT, Sprint and Telesat. These agreements establish a variety of standards, revenue sharing, and rate setting.
These agreements are subject to Federal regulation through the Canadian Radio-Television and Telecommunications Commission.
The effect of all this is that Manitoba Telephone System, through its agreements and interconnections, plays a significant role in national and international telecommunications and provides its subscribers local, interprovincial and international service.
The facts with respect to the status of MTS, the services offered to its subscribers, its interconnections and interconnecting agreements and its role in Telecom Canada, are very similar to the facts regarding the status of AGT (Alberta Government Telephones) in the case of Alberta Government Telephones v. CRTC  2 S.C.R., 225.
In that case, the court examined whether or not AGT was an interprovincial undertaking within the meaning of s. 92(10)(a) of the Constitution Act, 1867, which reads as follows: "92. In each Province the Legislature may exclusively make laws in relation to matters coming within the Classes of Subject next hereinafter enumerated; that is to say,
10. Local Works and Undertakings other than such as are of the following Classes:
a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertaking connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province;"
In deciding the question, Dickson C.J. writes as follows on behalf of the majority at p.259:
"The primary concern is not the physical structures or their geographical location, but rather the service which is provided by the undertaking through the use of its physical equipment."
He continues at p.260:
"The involvement of AGT in the transmission and reception of electronic signals at the borders of Alberta indicate that AGT is operating an interprovincial undertaking... AGT's telecommunications system, taken as a whole, connects Alberta with the rest of Canada and with the United States, and other parts of the world. It undoubtedly extends beyond the province of Alberta."
The facts in this inquiry would certainly support the same conclusion with respect to MTS, and the conclusion that it is an interprovincial undertaking within the meaning of s. 92(10)(a) of the Constitutional Act, 1867. Thus, the Tribunal finds that MTS is a telecommunication undertaking within the legislative authority of Parliament.
2. Did the respondents, William James Harcus and the Manitoba Knights of the Ku Klux Klan "communicate telephonically or cause to be communicated repeatedly" the subject messages?
The complainants or their spokespersons each gave evidence that they had, at one or more times between May, 1991 and December 12, 1991, heard messages by telephone purporting to be put out by the Manitoba Knights of the Ku Klux Klan. In every case the recorded message was heard when one dialled telephone number 775-8896 in Winnipeg, Manitoba. Messages recorded on May 9, May 23, June 20, July 10, July 24, August 23, October 17, November 5, and November 20 of 1991, each opened with:
"Hello, you have just reached the Manitoba Knights of the Ku Klux Klan".
In each of the above except November 20, 1991 the message concludes:
"We are the Invisible Empire, P.O. Box 2206, Winnipeg, Manitoba R3C 3R5. Thanks for calling".
The message recorded on December 12, 1991 on the same telephone number 775-8896, commences:
"Hello, you have just reach the Fraternal Brotherhood of the Invisible Empire in the third world province of Manitoba".
Although this message does not identify the Ku Klux Klan in the opening sentence, later on, in response to the alleged sale of "Klan Buster T-Shirts" it says:
"We of the Manitoba Klan have just made 6 different, dynamic, multi-colour designs available to the public at a fraction of the cost of what he is peddling his grease rags for. For more information about our local T-Shirts available, write to our Provincial Office for a sales flyer at P.O. Box 2206, Winnipeg, Manitoba, R3C 3R5."
Therefore each of the messages clearly identifies the Manitoba Knights of the Ku Klux Klan or the Manitoba Klan as the sponsor of the message. Each is available at the same telephone number 775-8896 and uses the same Winnipeg postal box, P.O. Box 2206.
The Tribunal received into evidence as exhibits tape recordings of the above messages as well as transcriptions of each.
Another exhibit received into evidence was a copy of a recruitment poster circulated in Winnipeg indicating the postal address of the Manitoba Knights Provincial Office as Box 2206, Winnipeg, Manitoba R3C 3R5 and using the 24 Hour Hotline number 1-(204)-775-8896. The words "Join or Support Your Local Klan!" together with the symbol of a Klansman on horseback with a burning cross are prominently displayed. This is further evidence linking the Klan to the telephone number, postal box and thus the messages.
The Tribunal finds that the respondent the Manitoba Knights of the Ku Klux Klan "did communicate telephonically or cause to be communicated repeatedly" the subject messages.
Mr. Max Deforel, an employee of Canada Post with responsibility for postal box rentals made a positive identification of William James Harcus as the person to whom he had personally rented P.O. Box 2206, the box previously identified in the telephone messages and in the poster with the Manitoba Knights of the Ku Klux Klan.
The witness introduced as exhibits the following:
- Exhibit HR-20 - The application for P.O Box 2206 effective December 1, 1989, signed by Bill Harcus.
- Exhibit HR-21 - Canada Post Box Rent Receipt for Box 2206 to W.J. Harcus, signed by M. Deforel and covering the period from December 1, 1989 to November 30, 1990.
- Exhibit HR-22 - an authorized signature card for registered mail signed Bill Harcus indicating Box No. 2206 and signed on Nov. 17, 1989.
- Exhibits 24 and 25 - receipts for payment for Box No. 2206 to customer W.J. Harcus covering the periods December 1, 1990 to November 30, 1991 and December 1, 1991 to November 30, 1992.
- Exhibit HR-26 - a computer printout "Update Postal Box Customer Info." showing a rental renewal of Postal Box 2206 from December 1, 1992 to March 1, 1993, to W.J. Harcus.
All of these tie William James Harcus to P.O. Box 2206.
Mr. Terry Gordon McKay, Manager of Client Security Services for the Manitoba Telephone System, testified under subpoena that the telephone number 775-8896 was assigned randomly by computer to W. Harcus, Suite 5, 1625 Notre Dame Avenue, Winnipeg. The start-up date of the service was March 15, 1991 and it was terminated on January 31, 1992.
The witness produced certified copies (Exhibits HR-27 & 28) of the billing record for telephone number 775-8896 and of the commercial record for the same phone number both indicating that the bills for the service were sent to Mr. W. Harcus and that payment was received until default in the last month of service. The service was continuous and in the name of Mr. Harcus for the entire period from March 15, 1991 to January 31, 1992.
The evidence presented clearly identifies the respondent William James Harcus as the person who subscribed to the telephone number from which the subject messages were communicated and also the postal box identified in the messages and the poster as the mailing address for the Manitoba Knights of the Ku Klux Klan.
Accordingly, this Tribunal finds that William James Harcus did act individually or in concert with the Manitoba Knights of the Ku Klux Klan "to communicate telephonically or to cause to be so communicated repeatedly" the messages which are the basis of these complaints.
3. Were the messages communicated "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" (ie race, national or ethnic origin, colour, religion or sexual orientation)?
For the purposes of analyzing the impact of the telephonic messages within the meaning of s.13(1) of the Canadian Human Rights Act, this Tribunal accepts the definitions of "hatred" and "contempt" applied by the Tribunal in Canadian Human Rights Commission et al v. The Western Guard Party and John Ross Taylor, July 20, 1979 (The Taylor Case). Furthermore we accept the concept of the word "expose" as applied in the Taylor Case.
In the Taylor decision the Tribunal stated at page 28:
"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."
In addition the Concise Oxford Dictionary of Current English (1990 Edition) includes in its definition of "Contempt":
"a feeling that a person...is beneath consideration or worthless or deserving scorn or extreme reproach".
In the Taylor case at page 29, the Tribunal dealt with the word expose in the context of s.13(1) as follows:
"Expose" is an unusual word to find in legislation designed to control hate propaganda. More frequently... 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 of 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 condition 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 s.13(1) of the Canadian Human Rights Act.
In analyzing the messages to determine whether they constitute "matter that is likely to expose a person or persons to hatred or contempt..." the Tribunal was assisted by the evidence and reports of two expert witnesses, Dr. Susan Ehrlick, Ph.D., an associate professor of linguistics at York University and Dr. Frances Henry, Ph.D. a professor of social anthropology at York University.
Dr. Ehrlick did a linguistic analysis of the messages and prepared a report which was entered as an exhibit (Exhibit HR-30).
The methodology employed in her analysis was to examine:
• (1) Implicit Meaning (ie. the indirect expression of opinions in an attempt to avoid incurring a racist or hateful label).
• (2) Underlying Semantic Strategies: "A sematic strategy is a goal- directed property of discourse usually accomplished through various functional moves" "... discrediting political groups or policies representing minority groups can have the effect of discrediting minority groups even though the groups themselves are not directly attacked" p.3.
• (3) Surface Structure: Lexical Choice and Syntactic Structure.
This is simply an analysis of the choice and variation of the words to describe individuals and events and the sentence patterns used to organize these words.
Dr. Henry also prepared a report on her analysis of the messages, which was entered as an exhibit (Exhibit HR-32).
In her report, Dr. Henry identified 10 major themes, set out in three categories, which recur throughout the messages:
• (1) Themes Which Promote Hatred:
• (a) Biological Racism and the Reification of "Race"
• (b) Cultural Inferiority of Other Races
• (c) Anti-Immigration Sentiment
• (d) Anti-Black Prejudice
• (e) Anti-Semitic Prejudice
• (f) Anti-Aboriginal Prejudice
• (g) Anti-Communist Ideology
• (2) Erroneous Beliefs About Governmental Actions.
• (3) Threats of Violence.
At page 3 of her report, she writes:
"In my considered opinion, these KKK messages constitute hate propaganda whose aim is to advocate race, hatred and the superiority of the white race; denigrate religions other than Christianity; defame cultures other than Western ones and falsely defame government's and politician's efforts to uphold fairness and justice."
For the purposes of this decision, and with the benefit of the evidence of the complainants and that of Drs. Ehrlick and Henry, the Tribunal will examine selected messages.
Exhibit HR-1 is composed of the transcripts of some six different messages communicated via telephone number 775-8896.
The first of these was heard on May 9, 1991 and this message contains the following passages:
• (1) "...special status minority organizations, programs and periodicals which are responsible for sowing the seeds of discontent and racial hatred among non-whites in this country by preaching and teaching humanistic social equality and mongrelization...of the races."
• It continues:
• (2) "...it is obligatory upon the negro race and upon all other coloured races in Canada to recognize that they are living in the land of the white race by courtesy of the white race and the white race cannot and will not be expected to surrender to any other race...the control of its vital and fundamental governmental affairs."
• (3) "Today we are faced with a massive flood of a third world immigration wave in which its taken unfair entry priority over whites who wish to enter and contribute to this nation and who can better culturally assimilate towards our society's way of life."
• (4) "...underqualified undesireables who (are) let in first in line simply because of their skin colour."
• (5) "We refuse to sit back like mindless sheep while our nation is gradually being destroyed from within. For too long there has been treason, degradation and filth in this land."
In (1), we see evidence of what Dr. Ehrlick calls the use of implicit meanings. The attack is not directly upon non-whites but upon "organizations, programs and periodicals" which are teaching "humanistic social equality" and "mongrelization of the races". It is clearly implicit that humanistic social equality and mongrelization of the races are portrayed as evil and that the language is designed to target non-whites as the source of the problem.
Quotation (2) sets out language which again targets non-whites and portrays them as a threat to which the white race must not surrender.
It is clear that quotations (1) and (2) convey messages which are likely to expose non-whites to resentment, malevolence or hatred on the basis of their colour or race.
Quotation (3) while still targeting non-whites, expands the grounds upon which people are targeted by dealing with immigration and, in particular, third world immigration thus raising the inference of national and ethnic origin.
The clear message here is that there is too much third world immigration ("a massive flood") which is given unfair priority over whites who can better contribute to this nation.
Quotation (4) uses language which blatantly attacks these immigrants as "underqualified undesireables" who are given priority because of their colour.
Quotations (3) and (4) contain messages which are likely to create resentment, fear and hatred of people based upon race, colour and ethnic and national origin.
In addition, the blatant language in quotation (4) ("underqualified undesireables") is very likely to expose these people to contempt and cause them to be viewed as deserving of scorn.
Quotation (5), near the end of the message, uses very strong, emotion- laden language implying that our nation is being destroyed from within by these forces - the politicians and non-white immigration from third world countries. It further attributes to these same forces, by implication, "treason, degradation and filth in our land".
The Tribunal finds that this message is likely to expose persons to hatred and contempt on the basis of their race, national or ethnic origin and colour.
These themes of race, third world immigration and colour continue in most of the other recorded messages with some variations and the occasional introduction of new themes or targets. For the proposes of this decision, we will not review each message in detail but will simply highlight some of the points emphasized in selected messages.
In the message recorded on May 23, 1991 (part of Exhibit HR-1), an appeal for support is made. This message attacks "non-whites" and their "pressure groups" for pressing for laws "to ensure that they achieve and acquire as much as whites...". It goes on to say:
"No intelligent person, whether a Klan member or not, objects to them amassing power and wealth as long as they earn it honestly and through their own initiative. We do object to laws that give them jobs, promotions, scholarships and other special status and privileges over more qualified whites".
The message clearly implies that non-whites are being accorded privileges which are being denied more deserving whites. This is likely to expose non-whites to resentment and hatred on the basis of their race and colour.
The message recorded on July 10, 1991 (part of Exhibit HR-1) subtly introduces a new target. It attacks those who have been reported to be taking some action to have these messages stopped. In particular, it singles out one individual as follows:
"Lyle Smordin, the Jewish spokesperson for B'Nai Brith, has come forward and announced a joint meeting in which native leaders and his pressure group would somehow stop these messages of truth from getting out to the people."
"So we say to these whiners and pressure groups, get this line cut off and deny white people their cultural viewpoint. The more so called action you take, the more it shows you up to be the freedom haters that you are. People like you, Mr. Smordin, are some of the best recruiting tools at our disposal."
This attack upon Mr. Smordin is clearly scornful. The subtle emphasis upon his being "the Jewish spokesperson" in this context is likely to expose him to scorn and contempt on the basis of his religion.
Other messages which we will not analyze in detail here, target Aboriginal people (June 20, 1991 recording, part of Exhibit HR-1), Black people (July 30 message, Exhibit HR-1) and homosexuals (December 12, 1991 Message, Exhibit HR-11).
Overall, all or part of the messages introduced into evidence are likely to expose a number of groups and several individuals, identifiable on the basis of race, national or ethnic origin, colour, religion and sexual orientation, to hatred or contempt.
Accordingly, this Tribunal finds that all the complaints against William James Harcus and the Manitoba Knights of the Ku Klux Klan have been substantiated.ORDER
As stated on December 16, 1992:
This Tribunal orders the respondent William (Bill) James Harcus and the respondent The Manitoba Knights of the Ku Klux Klan and any other individuals who are members of or act in the name of the Knights of the Ku Klux Klan, to cease the discriminatory practice of communicating telephonically or causing to be communicated telephonically by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, matters of the type complained of in this case, i.e. which is likely to expose a person or persons to hatred or contempt by reason that that person or those persons are identifiable on the basis of race, national or ethnic origin, colour, religion or sexual orientation and, to refrain from any such action in the future, anywhere within Canada.Dated this day of , 1992.
Keith C. Norton, President
Roger Bilodeau, Member
Raj Saunder, Member