Ernst Zundel Samisdat

Zundel v. 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.

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