VII. APPLICABLE LEGAL PRINCIPLES

(a) "hatred", "contempt" and "expose"

Section 13(1) has been considered in at least three Tribunal decisions and by the Supreme Court of Canada in Taylor and the Western Guard v. The Canadian Human Rights Commission et al [1990] 3 S.C.R. 892. Although the Supreme Court was dealing with the issue of the constitutionality of this section, portions of the court's reasons for decision are relevant in this case.

In Taylor, it was argued that the words "hatred or contempt" were overly broad and vague and, in the context of the issue before the Court, failed to meet the constitutional standard of minimal impairment.

In responding to this argument, Dickson, J., speaking for the majority of the Court stated that: (at p. 937)

In my view, there is no conflict between providing a meaningful interpretation of s. 13(1) and protecting the s. 2(b) freedom of expression, so long as the interpretation of the words "hatred" and "contempt" is fully informed by an awareness that Parliament's objective is to protect the equality and dignity of all individuals by reducing the incidents of harm - causing expression. Such a perspective was used by the Human Rights Tribunal in Nealy v. Johnston (1989) 10 C.H.R.R. D/6450, the most recent decision regarding s. 13(1) where it was noted that: (at p. D/6469)

"In defining "hatred" the Tribunal [in Taylor] applied the definition in the Oxford English Dictionary (1971 ed.) which reads:

active dislike. detestation. enmity. ill-will. malevolence.

The Tribunal drew on the same source for their definition of "contempt". It was characterized as: the condition of being condemned or despised; dishonour or disgrace.

As there is no definition of "hatred" or "contempt" within the [Canadian Human Rights Act] it is necessary to rely on what might be described as common understandings of the meaning of these terms. Clearly these are terms which have a potentially emotive content and how they are related to particular factual context by different individuals will vary. There is nevertheless an important core of meaning in both, which the dictionary definitions capture. With "hatred" the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one "hates" another means in effect that one finds no redeeming qualities in the latter. It is a term however which does not necessarily involve the mental process of "looking down" on another or others. It is quite possible to "hate" someone who one feels is superior to one in intelligence, wealth or power. None of the synonyms used in the dictionary definition for "hatred" give any clues to the motivation for the ill will. "Contempt" is by contrast a term which suggests a mental process of "looking down" upon or treating as inferior the object of one's feelings. This is captured by the dictionary definition relied on in Taylor... in the use of the terms "despised", "dishonour" or "disgrace". Although the person can be "hated" (i.e. actively disliked) and treated with "contempt" (i.e. looked down upon), the terms are not fully extensive, because "hatred" is in some instances the product of envy of superior qualities, which "contempt" by definition cannot be [Emphasis added]

Dickson, J. also stated that an intent to discriminate is not a pre-condition to a finding of discrimination under human rights legislation. To require a subjective intent requirement rather than focusing solely upon effects would defeat one of the primary goals of anti-discrimination legislation which is to prevent discriminatory effects rather than punish those who discriminate. For the same reason, there is no exemption or defence of justification for truthful statements in section 13(1).

Finally, there is the question of the meaning of "expose" in section 13(1). The Tribunal in Taylor considered the meaning of this word:

"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 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." (at p. D/6470)

For the purposes of this case, we accept this definition of the word "expose" as did the Tribunal in Nealy.

(b) Persons or a group of persons acting in concert to communicate telephonically

We read this requirement of section 13(1) as disjunctive so that for the complaints to be established, the evidence need show either a person or a group of persons has communicated telephonically or a group of persons acting in concert have communicated telephonically. The evidence of Gordon Mackie, Security Manager for B.C. Tel. shows that the CLN telephone service to be in the name of Derek J. Peterson and his partner to be Tony McAlear. His evidence also demonstrates that phone number 266-9532 which is the fax number referred to in the messages is in the name of Derek J. Peterson and the credit information shows the name of Tony McAlear and Mike McAlear. Further, according to Mr. Yamauchi, the name of the Box Holder 35683, referred to in the messages is Cori Keating. Finally, the evidence is that Tony McAlear is the person responsible for the phone lines and the messages.

In our view, the evidence clearly establishes that at least one person, Tony McAlear is acting to communicate messages telephonically. The evidence also establishes that there is more than one person, namely, at least Tony McAlear, Cori Keating and Mike McAlear, who are involved with the CLN and as such establishes that there is a group of persons acting in concert to communicate telephonically.

(c) By means of the facilities of a telecommunication undertaking within the legislative authority of Parliament

Mr. Mackie's evidence is that B.C. Telephone was incorporated in 1916 pursuant to an Act of the Parliament of Canada, and has continued to operate under this legislation. The obvious conclusion is that B.C. Telephone is a telecommunication undertaking within the legislative authority of Parliament. We conclude therefore that this aspect of section 13(1) has been established.

(d) Likely to expose a person or persons to hatred or contempt

According to our explication of the law set out above, it is not necessary to prove that the CLN or the persons associated with the CLN intended to cause the result contemplated in section 13(1); nor is it necessary to prove that in the targets of the messages actually were exposed to hatred or contempt. It is sufficient if the evidence shows that the messages are likely to have this effect.

The messages are directed to two groups, non-white immigrants and Jews. Non-white immigrants are described in the messages, variously, as a rising tide of the lower races who envy and hate whites, who are streaming in uncounted numbers across our borders and who are encouraged to dispossess whites; as swarms of wretched refuge that have washed ashore and as persons who bring the very problems they sought to escape, namely, pockets of crime, corruption and violence to this country. They are described as blameless because they are what they are, and they are only trying to better their lot in life.

The messages that are directed towards Jews are somewhat more subtle and less explicit, although certain of the messages, with very little imagination, can be read as marking Jews as a group whose purpose is to deceive and cheat the rest of the society. The messages taken as a whole characterize Jews as perverse, as manipulators and destroyers of our culture and society, because they are Jews.

It is interesting to observe that there is a certain irony surrounding these messages in that it is the white race who are seen as the victims of oppression, whose culture and identity is threatened by visible minorities and as a result of the power and manipulation of the Jews who have made government and the media subservient to their interests.

If the words of section 13(1) of the CHRA have the meaning and content ascribed to them by the Tribunals in Taylor and Nealy and accepted by the Supreme Court of Canada in Taylor, that "hatred" connotes extreme ill-will which allows for no redeeming qualities in the person at whom it is directed; that "contempt" is similarly extreme but more appropriately used when the object of one's feelings is looked down upon; so that section 13(1) can be summarized as referring to unusually strong and deep-felt emotions of detestation, calumny and vilification and "expose" means creating the right conditions for hatred to flourish leaving the identifiable group open or vulnerable to ill-feelings or hostility; it is our conclusion that these messages are likely to have this effect. New immigrants are viewed as inferior, unable to help themselves and a threat to our society. They are contemptible, they are exposed to contempt on the basis of their race, national or ethnic origin, on the basis of being non-white.

The messages convey extreme ill-will towards the Jews as a religious group and nothing in the messages allows for any redeeming qualities in Jews. Jews may likely be the object of hatred and contempt in these messages; they are deceitful, they cheat and create a hoax of the most perverse kind. They may likely be the objects of hatred in so far as one may hate someone whom one feels is superior in terms of power, intelligence or wealth.

On the basis of our reading of the messages and the evidence presented at this hearing and the relevant legal authorities, we conclude that on a balance of probabilities, the messages are likely to expose a person or persons to hatred or contempt by reason that person or those persons are identifiable on the basis of race, national or ethnic origin, colour or religion under section 13(1) of the CHRA and that a discriminatory practise has been established.

There is also evidence given by the Complainants and other witnesses of certain incidents which they experienced and which caused them some concern. These incidents occurred within the time frame of the communication of the messages and the media interviews given by Khaki and Elterman.

Khaki testified that a somewhat threatening message was hand-delivered to the CRJ offices on December 12, 1991. He also testified as to burnings on the front lawns of Iranian homes. Elterman told of a quantity of blood or blood-like substance being spilled on the front doorstep of his office; Thomson told of receiving telephone messages vilifying Jews and other threatening messages which were received at the Council offices and on his pager.

The evidence is not strong enough for us to conclude that there is a direct link between these incidents and the matters expressed in the messages. But, given the timing of the events and the messages, they appear more than just coincidental and demonstrate if not conclusively at least, the potential effect of the type of messages complained about in this case.

VIII ORDER

Section 54(1) of the CHRA prescribes the type of order that this Tribunal can make if it finds that a discriminatory practice has been substantiated under section 13(1). We consider a cease and desist order to be appropriate in these circumstances.

Accordingly, we order that Derek J. Peterson, the Canadian Liberty Net, by themselves or by their servants, agents, volunteers, co-operants, or otherwise anyone having knowledge of this order, cease the discriminatory practice of communicating telephonically or causing them to be so communicated, repeatedly, matter or messages of the type complained of in this case, 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 or religion, and in the event that the matter or messages of this type are not currently being communicated, to refrain from such action in the future.

In light of the fact that Mr. Gill did not appear personally or by counsel and failed to give any evidence in support of his complaint, his complaint is hereby dismissed.

IX WITHDRAWAL OF CLN COUNSEL FROM THE HEARING

The final matter that we wish to deal with is the withdrawal of counsel for the CLN prior to the end of the hearing. On August 27, 1992, Mr. Christie, CLN counsel, asked for an adjournment of the proceedings because his client had been incarcerated.

As we understand the facts, Mr. Christie's client was Tony McAlear, who is not named as a respondent in these proceedings nor until this application was made was Mr. McAlear said to have anything to do with the CLN. On August 26, 1992, Mr. McAlear had been found guilty of contempt of the order of the Federal Court prohibiting the continued operation of the CLN phone line and was jailed.

Two reasons were given for the application. First, it was necessary for Mr. McAlear to be present to give instructions to assist Mr. Christie in his cross examination of Rabbi Feuerstein on factual matters and to assess whether evidence should be called on behalf of CLN. According to Mr. Christie, Mr. McAlear had been present throughout most of the hearing and had provided him with instructions.

The other reason was on humanitarian grounds, namely that Mr. McAlear's wife was in the hospital having just had a baby, he was in jail and Mr. Christie's time and energies had to be directed to obtaining his release.

The adjournment was opposed by both Commission counsel and Complainants' counsel because humanitarian grounds for the application were irrelevant with respect to this Tribunal. Further, there was no need to adjourn the hearing unless Mr. McAlear was going to give evidence. Mr. Christie responded by insisting that he had no obligation to undertake to call any evidence and his application should not be decided on that basis.

We did not grant the application for adjournment. Although at the time we did not give extensive reasons for the denial, our reasons are as follows. When Mr. Christie sought the adjournment, he was completing the cross-examination of Rabbi Feuerstein, the last witness in support of the complaints. The cross-examination had been lengthy and wide ranging. In our opinion, at this late stage, in the cross-examination and the hearing, the success or failure of CLN's case could not have depended upon completing Rabbi Feuerstein's cross-examination on factual matters with Mr. McAlear sitting at Mr. Christie's side to advise him.

Further, Commission counsel had provided Mr. Christie with a disclosure package a month before the hearing commenced on May 25, 1992 which included a disclosure of who the witnesses would be and what they would say in support of the complaints, so that Mr. Christie was not coming at this witness cold.

We should also point out that it was only at the beginning of the second week of the hearing that Mr. McAlear took his place at the counsel table beside Mr. Christie. We can only speculate as to the reason why he did not occupy this position earlier in the hearing if his assistance was so important to the conduct of the case for CLN.

Finally, we did not find credible the argument that Mr. McAlear had to be present to hear the remainder of the cross-examination of Rabbi Feuerstein in order to assess whether CLN should call evidence. After two weeks of hearing, it is more reasonable to conclude that Mr. Christie, an experienced and knowledgeable counsel in the issues involved in this hearing, would have already decided that question.

When the Tribunal gave its decision denying the application for adjournment, Mr. Christie advised us that he was instructed to withdraw from the hearing. And he did.

The Tribunal proceeded to hear argument on behalf of the Commission and the Complainants and reserved its decision at the completion of the arguments.

APPENDIX I

TRANSCRIPT : THE CANADIAN LIBERTY NET

[Taped by Ron Yamauchi, Human Rights Officer]

[1100 h. 14 December 1991 - calling (604) 266-9642]

You have reached the Canadian Liberty Net, Canada's first computer operated voice message centre to promote cultural and racial awareness amongst white people. If you are offended or upset by the free expression of European cultural and racial awareness, press 6 on your touch tone phone and do not attempt to enter the Canadian Liberty Net. For those who wish to hear our messages, press 1 on your touch tone phone to learn about how to use the system or press 88 to go to the main menu.

[pressed 1]

This system requires the use of a touch tone telephone. To select a message from a menu, press the corresponding number on your touch tone phone. If at any time you wish to return to the previous menu, press 9 on your touch tone phone. If you would like to send us information, news clippings or essays write to: Box 35683 Vancouver, B.C. Canada V6M 4G9 or send a fax to area code (604) 266-9532.

You have reached the main menu. If at any time you wish to return to the previous menu, press 9. Press 1 for the Leadership Forum. Press 2 for a history lesson. Press 3 for miscellaneous messages. Or press 5 to leave a message. Please note: once you have left your message you will be disconnected.

[pressed 1]

Press 1 for Canadian selections, press 2 for American selections.

[pressed 2]

This is the U.S. Leaders Menu. Press 1 to listen to the National Alliance, press 2 to hear from Tom Metzger of W.A.R. or press 3 to hear from Fred Leuchter.

[pressed 1]

Thank you for calling the National Alliance and National Vanguard Books.

We have a positive educational and consciousness building program for white people. We can help you and your family understand your racial and cultural heritage. We can give you and your children a sense of identity and purpose that will help you survive and prosper in the troubled times ahead. The first step in our program is for you to obtain a copy of our free book and tape catalogue. Write to: National Vanguard Books P.O. Box 330 Hillsborough West Virginia 24946

Thousands of years ago, there was a moment in history that made civilization possible. That, in fact, made it possible for human beings to exist at all. That moment quite literally brought into being our great cities, our technology, our works of art, and everything that we treasure and value. In fact, that moment was even the author of our very soul. That moment in history made all these things possible because that moment made us possible.

What was that moment? It was the moment when the first true men held themselves apart from the many tribes and races of sub-men around them, and mated only with their own kind thus securing the continued upward growth of their branch on the tree of evolution and, thus, securing our existence.

It is not known, of course, what the precise date of that moment was, nor is it certain what exact course of action was taken to effect the separation. Perhaps our ancestors made war upon the sub-men and drove them out of the land. Or, they may have simply kept to themselves, and they built the culture that left the sub-men hopelessly behind.

One thing is certain, though: our remote ancestors did hold themselves apart from the primitive hominids around them, and upon that momentous decision, turned the whole of human life today.

Today, the white people of America face a similar decision. We are a tiny minority of the world's population. We are surrounded on all sides by a rising tide of the lower races who envy and hate us, and who are streaming in uncounted numbers across our opened borders, and who are encouraged to dispossess us by the incessant anti-white drumbeats of the alien-controlled media. We who are the inheritors of western civilization represent something unique. We represent one of the highest branches on the tree of life, a tree of evolution, a branch that is even now evolving in changing, as it always has, and we now face our moment of decision:

Are we going to succumb to the rising tide of colour? Are, we going to allow the alien masters of the media to chart our destiny for us? Are we going to allow them to manipulate us into a slow death by race mixing?

Or, will we find the courage to say in our own minds:

"We are white people - men and women of the West. This is our country. Those who will take it from us by force or by stealth are our enemies, and those who aid our enemies are traitors. And our sacred duty to our children, and to our children's children, is to bring our truth to victory."

For further information on the National Alliance Program or on National Vanguard Books write to: P.O. Box 330 Hillsborough West Virginia 24946

This is the U.S. Leaders Menu. Press 1 to listen to the National Alliance, press 2 to hear from Tom Metzger of W.A.R. or press 3 to hear from Fred Leuchter.

[pressed 2]

Hi Canada! This is Tom Metzger of W.A.R., White Aryan Resistance, speaking to all my friends across that imaginary line that divides Aryan people.

Many of you may have tuned in to hear me say that Canada is going down the tubes because a small minority of historical parasites called [voice: "beep"] are manipulating your country.

Many of you may have called in to hear me say that swarms of wretched refuse have washed ashore, they are commonly known as [beep].

Many may have called in to hear me say that your politicians are just as rotten as ours in the USA, and the only answer is the complete [beep] of them, and the total [beep] of any like them who aspire to high office.

In fact, since free speech is illegal in Canada, why don't you call (619) 723-8996 in the [beep]S.A. You won't have to hear the censored sounds of [beep]. Also W.A.R. will begin to picket several companies in the U.S. that are Canadian companies for their support of anti-free speech movements in Canada. Write for it: 1119 South Mission Avenue 330 Fallbrook, California 92028, and we will try to smuggle in some free speech about the [beep] and the [beep] and the [beep].

This is W.A.R.

This is the U.S. Leaders Menu. Press 1 to listen to the National Alliance, press 2 to hear from Tom Metzger of W.A.R. or press 3 to hear from Fred Leuchter.

[pressed 3]

In 1988, when I was sent to Poland as an expert witness to investigate the alleged German gas chambers at Auschwitz, Berkenhau and Midonic (?), I was not prepared for the events which were to follow, events which resulted in my world being turned upside down and forever changed.

As an expert on execution technology, I am routinely required to testify in U.S. courts about the condition and ability of the existing equipment in various U.S. prisons.

Resultant to these investigations and my subsequent testimony, I became the subject of an international conspiracy, the intent of which was to destroy my credibility by putting me out of business, spreading lies, libel and slander in the media, spreading false rumours of equipment failures and botched executions with my clients, threatening my clients, filing special legislation to prevent me from pursuing my best profession, corrupting public officials into officially spreading lies to my clients, and preventing payments for work completed in breach in contracts, making threatening telephone calls to both myself and my family, and finally, pushing the commonwealth of Massachusetts into an illegal prosecution of myself for practising as an engineer without a license.

This conspiracy was so effective that after two years, I have no business, no income and clients who are still afraid to deal with me. A major lawsuit against all of those conspirators is in the preliminary stages. The suit will be sponsored....

[message ends]

This is the U.S. Leaders Menu. Press 1 to listen to the National Alliance, press 2 to hear from Tom Metzger of W.A.R. or press 3 to hear from Fred Leuchter.

[pressed 9 for previous menu]

Press 1 for Canadian selections, press 2 for American selections.

[pressed 1]

Press 3 to hear the latest from Ernst Zundel, press 4 to hear from the Heritage Front.

[pressed 3]

Attention patriots.

The well-known Canadian revisionist and archive sceptic Ernst Zundel of Toronto, Ontario, Canada is going on trial in Munich, Germany, on November 5, 1991. He was found guilty by a single German judge called Von Bellestle (?) on March the 28th of this year for making revisionists films, videos, radio broadcasts in the early 1980s and for publishing Holocaust-doubting material. Judge Bellestle never saw Zundel or his lawyer, he looked at no defence evidence, but instead accepted the state prosecutor's list of charges, quoting them almost verbatim in his summary conviction. Zundel was convicted for saying in interviews that the diary of Anne Frank was a hoax, and that a Jewish corpse took as long to cremate as a German corpse, that the currently-believed Auschwitz death toll was exaggerated, et cetera.

In Germany, it is a crime not to believe in the Holocaust, and to doubt that homicidal gas chambers existed in Nazi Germany to execute people. Those wishing to attend the Zundel/Holocaust trial in Munich or those wishing to help with financial contributions should contact: Ernst Zundel at 206 Carlton Street, Toronto, Ontario Canada M5A 2L1 or by telephoning area code (416) 922-9850.

Press 3 to hear the latest from Ernst Zundel, press 4 to hear from the Heritage Front.

[pressed 4]

You have reached the Canada's Heritage Front.

We are a group of men and women dedicated to the furtherance and maintenance of our white race. We believe this country which we now call Canada was settled by pioneers from Europe. And it has seen its greatest moments, achieved its worldwide respect as a result of the traditions and cultures this country was founded on; and this has been a direct result of those values, traditions and customs our founding fathers brought with them from across Europe -- France, England, Scotland, Germany, Scandinavia, Eastern Europe.

These pioneers came to Canada, worked hard, suffered tremendous hardships. However, they succeeded to start the process of building a truly great nation.

Since 1967, when sweeping changes were made, which essentially opened the flood gates to massive numbers of aliens whose cultures and traditions vastly differ from those of our countries' fathers and descendants.

Today's immigrant bears no resemblance to our founding fathers. These new immigrants, of course, are escaping the poverty and oppression of their homelands and, once here, with them they bring the very problems they sought to escape. As a consequence, pockets of crime, corruption and violence are springing up in areas which they inhabit.

We do understand these people trying to better their lot in life, but the people we condemn are our owm politicians, law makers, media, big businesses, who for their own peculiar reasons engage in the suicidal practice of cultural genocide.

The Heritage Front currently publishes a monthly publication which examines those and other issues. Up Front can be obtained through writing to the Heritage Front at: P.O. 564 Station R Toronto, Ontario M4G 4E1

Subscription rates are: $40 for Canadians and $50 for U.S. and foreign subscriptions. If you would like information about the Heritage Front please write us at the mentioned address, Attention: Grant Morrison. Or, if you would like to hear the Heritage hot line, call Toronto area code (416) 694-2298.

[pressing 9]

[line disconnects]

[dialling in again: at 1125h]

You have reached the Canadian Liberty Net, Canada's computer operated voice message centre to promote cultural and racial awareness amongst white people....

[pressed 88]

You have reached the main menu. If at any time you wish to return to the previous menu, press 9. Press 1 for the Leadership Forum. Press 2 for a history lesson. Press 3 for miscellaneous messages. Or press 5 to leave a message. Please note: once you have left your message you will be disconnected.

[pressed 2]

Welcome to the history lesson.

Press 1 to find out what Fred Leuchter found at Auschwitz, or press 2 to find out what the British learned from breaking the German cyphers.

[pressed 1]

In 1988 I testified my engineering report on the alleged execution gas chambers at Auschwitz, Burkenhau and Midonic, Poland into the court record at the trial of Ernst Zundel in Canada, and destroyed the "gas chamber" myth forever.

My report shows that categorically none of the facilities examined at Auschwitz, Burkenhau or Midonic could have supported, or in fact, did support multiple executions utilizing hydrogen cyanide, carbon monoxide or any other allegedly or factually lethal gas.

Based upon very generous maximum usage rate for all the alleged gas chambers totalling some 1,693 persons per week, and assuming these facilities could support gas executions, it would have required 68 years to execute the alleged number of six millions of persons. This must mean that the Third Reich was in existence for some 75 years.

Promoting these facilities as being capable of affecting mass, multiple, or even singular executions is both ludicrous and insulting to every individual on this planet. Further, those who promote this myth prove they are negligent and irresponsible for not investigating these facilities earlier, and ascertaining the truth before indoctrinating the world with what may have become the greatest propaganda ploy in history.

Welcome to the history lesson.

Press 1 to find out what Fred Leuchter found at Auschwitz, or press 2 to find out what the British learned from breaking the German cyphers.

[pressing 2]

During the Second World War, the Axis powers and the Allies communicating by using secret codes or cyphers. Many of these cyphers had been decrypted by British Intelligence.

For example, British Intelligence knew the plans that Japan had for the Pearl Harbour attack before the attack took place. Information was received by intercepting and decoding Japanese signals prior to the attack. It has been suggested that the British and Roosevelt knew the impending attack on Pearl Harbour, yet did nothing to prevent it, with the hope that the attack would raise the ire of the American populace, thus allowing America to enter the war against Germany.

The British also had cracked the German codes, allowing them to know which cities would be bombed by the Germans, and when. This information was also not acted upon, so that the Germans would not realize their codes had been broken.

According to page 673 of the book British Intelligence in the Second World War. Its Influence on Strategy and Operations, Volume 2, authored by F.H. Hindsley (?), Master at St. John's College and Professor of History at International Relations at the University of Cambridge, we find the following:

Between the 17th and 25th of May 1943 following the breaching of the [inaudible] Dam a special but readable cipher was used in the Ruhr. It carried orders to police and other organizations in the affected areas. The decrypt shows that the emergency was quickly controlled.

From the Spring of 1942 until February 1943, when it ceased to be sent by wireless telegraph, Intelligence decrypted another cypher: a daily return of prisoners at Dachau, Buchenwald, Auschwitz and seven other concentration camps. Not all of them, but a good cross-section. The daily return consisted of a series of unheaded, unexplained columns of figures which Intelligence worked out to mean: A, numbers of inmates at the start of the previous day; B, new arrivals; C, departures by any means; and D, numbers at the end of the previous day. It also specified the various categories of prisoners such as politicals, Jews, Poles, other Europeans, and Russians.

Intelligence interpreted column C, "Departures by any means," as being accounted for primarily by deaths. The returns from Auschwitz, the largest of the camps with 20,000 prisoners, mentioned illness as the main cause of death, but included references to shootings and hangings. There were no references in the decrypt to gassing. There were to be other references to concentration camps in the police traffic of later years, but they were infrequent.

This book is readily available at the Metropolitan Toronto Library, History Department. The information in this book is based on recently declassified British Intelligence documents.

This evidence suggests that there were no gas chambers at Dachau, Buchenwald and Auschwitz. It is laughable to argue that the victims of the alleged gassings were not included in these figures, when coded messages included much more sensitive strategic and military information vital to the entire Axis war effort.

The only logical conclusion to this information is that there were no gas chambers at Dachau, Buchenwald and Auschwitz.

Welcome to the history lesson.

Press 1 to find out what Fred Leuchter found at Auschwitz, or press 2 to find out what the British learned from breaking the German cyphers.

[pressed 9, previous menu]

You have reached the main menu. ...

[pressed 3]

Press 1 for music, press 2 for Kosher Tax, press 3 for Hollywood Name Changers, or press 4 for the Masters of Hollywood.

[pressed 1]

Many may consider why the likes of Handel, Wagner and the Strauss family seem so far removed from our 20th Century post-war experience. So too, one could question why there are no equivalents of these or other past masters in the West today. What factors are responsible for the purging of the West of any worthwhile composers?

During the first four decades off this century, there were symphonic, operatic masterpieces being devised and performed throughout the Western nations. The true European expression, true music, had not fully yielded to the alien trends of jazz and the swinging big bands, the saxophonic forefathers of contemporary rock and roll music.

The end of the Second World War saw the anarchic new world struggling to its feet, held up and aloft by the cold war actors and a billion and one officious committees and conferring experts. Mainstream architecture suddenly became minimal, functional, modern. None of these imaginative architectural forms could remotely be considered as inspired by a creative European spirit, if they were even inspired at all.

The physical environment of the late 20th Century West, with its tyrannical architecture designed to stifle any stray creative thought, can appeal only to that bleak, unisex committee person and can never hope to be combined with great western ideas and institutions to produce & 20th Century Haydn, or Gluck.

So while the committees still bubble about their issue of the day, such as how ugly, flat, or pointy a large public building should be, we will continue to wait for someone, somewhere, to write music worthy of our people's rich and artistic culture.

This is not to say that a more classical architecture alone will provide the ingredients necessary for healthy musical products. But, just as contemporary ideals must change, so too must the environment wherein we think our thoughts and do our work. Until Western men correct the glaring mistakes that has turned our valuable culture on its head for the better part of this century, the Music Inc. gangsters, the so-called cultural elite of today, will promote misfits like Stravinsky, Shostakovich and Nigel Kennedys, as being contemporary indicators of melodic achievement.

Our simple message to you is as follows: if you, your friends and associates renew and promote your appreciation of the truly European music, this will help to positively motivate those in our society who have become estranged from our traditional European ways. We can slow the orchestrated degradation of at least one critical facet of our culture by simply talking about this issue, and recognizing its importance to us. And we can be expectant of positive changes, because a brief review of history shows that these problems -- and certain others -- have a tendency of coming to a head and being sorted out.

Press 1 for music, press 2 for Kosher Tax, press 3 for Hollywood Name Changers, or press 4 for the Masters of Hollywood.

[pressed 2]

For those of you who are unaware of the hidden kosher surtax on grocery items, this message will come as an eye opener.

Go to your cupboards and refrigerators, and look at the labels on your grocery items. Careful inspection should reveal tiny but telltale symbols such an a small K in a circle, a tiny U in a circle, the letters COR surrounded by a circle or followed by a two or three digit number, an M and a K, or perhaps a B, C and a K. You may have to look on the back or neck of the product.

These hidden cryptic symbols indicate that the product is "kosher," fit for consumption under the Jewish dietary law. In order for a product to display this symbol, a rabbi must visit, inspect and supervise the means of production.

This is done not for free, but for a substantial fee. Not only must the production plant be inspected, but so too must their supplier and the supplier's supplier, ad nauseam. This record adds up to a lot of money, estimated in the US in the hundreds of millions. This cost is passed on to you, the consumer.

It is unthinkable in today's society in which freedom such as the freedom of religion and the freedom from religion, that we are hoodwinked into financially supporting a religious organizations.

The Jewish population in Canada is less than 2% of the total population, and of that 2%, only 10 to 20% of those Jews are Orthodox Jews.

So why must we have to pay for this insignificant minority's dietary practices? If it is so important to the Jewish diets, why do the various Rabbinical organizations not perform their services for free?

The answer: it generates a great deal of revenue, revenue which they are not likely to turn down. That is why the kosher symbols are now found on items such as Windex Cleaner, Tide Laundry Detergent, Aluminum Foil, SOS pads, dishwashing liquids and Ajax -- items that are not commonly found in anybody's diet.

We urge you to boycott kosher items, and write to the manufacturers and tell them why. You can usually find the non-kosher substitutes for most, but not all, of your grocery needs. For example Heinz Ketchup is kosher, Heinz Lite Ketchup is not.

It's up to you. You may have to spend a little more time shopping, but in the end it will be worthwhile, and a clear conscience will be yours. Further comments or questions may be directed to the following organizations, listed by their accompanying symbols:

If you notice a small U with a circle around it, you can call the Union of Orthodox Jewish Congregation at: (212) 564-8330. You can ask for Rabbi Menachem Janak (?), he'll be happy with any questions you can put to him.

If you notice a small K with a circle it you can call the Organized Kashrit (?) Laboratories in New York at (718) 851-6428; their Rabbi Bernard Webbe (?) will help you with all your questions.

If you notice the COR surrounded by a circle or followed by a two or three digit number, the people responsible for this is the Canadian Jewish Congress of Toronto, and you get in touch with them at area code (416) 635-5550. Drop Rabbi [indistinct] a line, he'll be happy to help you.

If you notice BC and then a K underneath it, surrounded by a rectangular line, this is the Orthodox Rabbinical Council of British Columbia. You can contact them at area code (604) 275-0042. Talk to Josef Thomson or Rabbi Abraham Flagelstone, they're waiting for your call.

If your questions about the British Columbia Kosher [sic] can't wait, why not call the BC Kosher Hot Line pager at 667-0375. Leave your message on the pager, they'd be happy to hear your concerns. Or, why not phone the fax line at area code (604) 275-0042.

Don't be misled by slick talkers. Ask the hard-to-answer questions about cash. Remember, you shouldn't have to pay for anyone else's religion.

Press 1 for music, press 2 for Kosher Tax, press 3 for Hollywood Name Changers, or press 4 for the Masters of Hollywood.

[pressed 3]

Hollywood, California is the entertainment capital of the Americas and, to an extent, the world. In Hollywood, fiction is the name of the game, and also the game of the name. For, as we will see in this message, actors and their names are not always the genuine articles.

The following actors had their name changed:

Eddie Albert alias Eddie Heimberger, Woody Allen alias Allan Konigsberg, Lauren Bacall alias Joan Persky, Jack Benny alias Benny Kubelsky, Milton Berle alias Milton Berlinger, Ernest Borgnine alias Efrom Borgnine, George Burns alias Nathan Birnbaum, Joan Blondell alias Rosebud Blusteim, Joyce Brothers alias Joyce Bauer, Mel Brooks alias Melvin Kaminsky, Charles Bronson alias Charles Buchinsky, Rona Barrett alias Rona Bernstein, Tony Curtis alias Bernie Schwartz, Joan Crawford alias Lucille LeSueur, Dylan Cannon alias Samuel Friesen, Kirk Douglas alias Isador Dempsky, Bob Dylan alias Robert Zimmerman, Rodney Dangerfield alias Jacob Cohen, Douglas Fairbanks Jr. alias Douglas Ullman, Elliot Gould alias Elliot Goldstein, Zsa Zsa Gabor alias Sarah Gabor, John Garfield alias Jules Garfinkle, Judy Garland alias Frances Gumb, Cary Grant alias Larry Leach, Lorne Green alias Hinesly Woods, Buddy Hackett alias Leonard Hacker, Danny Kaye alias David Kaminsky, Ann Landers alias Esther Freedman, Michael Landon alias Michael Horowitz, Hal Linden -- Hal Lipshitz, Jerry Lewis alias Joseph Levitch, Karl Malden alias Malden Nikolovitch, Walter Matthau alias Walter something unpronounceable, Joan Rivers alias Joan [indistinct], Tony Randall alias Sydney Rosenberg, Edward G. Robinson alias Emmanuel Goldenberg, Dinah Shore alias Fanny Rhodes, Shelley Winters alias Shirley Shrift, Gene Wilder alias Jerome Silverman.

And here are some other actors and entertainment personalities who haven't felt the need to change their names:

Ed Asner, Bea Arthur, Gene Barry, Richard Benjamin, Kevin Costner, Lee J. Cobb, Joan Collins, Richard Dreyfuss, Ted Danson, Peter Falk, Eddie Fisher, Harrison Ford, Richard Gere, Betty Grable, Jack Webb, Sharon Gless, Mel Gibson, Dustin Hoffman, Monty Hall, Amy Irving, Jack Klugman, Leonard Nimoy, Ken Olin, Ron Perlman, George Segal, William Shatner, Peter Strauss, Rod Steiger, Jane Seymour, Barbara Walters, Debra Winger, Bruce Willis, Joan Collins, Goldie Hawn, Paul Newman, Robert de Niro, Geraldo Rivera, Billy Joel, Barry Manilow, Tony Martin, Bette Midler, Barbra Streisand, Ringo Starr, Roseanne Barr, David Brenner, Sid Caesar, Richard Dawson, Don Adams, Norm Crosby, George Jessel, Alan King, Carl Reiner, Don Rickles, Martha Raye, Garry Shandling, Henry Winkler, and David Letterman.

Why the heavy concentration of name-changers involved in the movie industry? Do they have something to hide?

While you think about that, why not check out our message box, entitled "The Masters of Hollywood," to be found on the previous menu.

Press 1 for music, press 2 for Kosher Tax, press 3 for Hollywood Name Changers, or press 4 for the Masters of Hollywood.

[pressed 4]

Everybody knows the extent to which the television and movie industries influence millions of people, and shape the fabric of our society. This would indeed be a very powerful tool in the hands of a special interest group in order to advance their agenda, if this medium was controlled and manipulated.

Television and movies certainly contain either subtle or overt political messages and themes. These themes almost invariably promote homosexuality, drugs, pornography, race mixing, and a baseless promotion of guilt about white history.

Is there a special interest group that controls and manipulate the television and movie industry to promote these themes? Let's look at the masters of Hollywood.

On the television, CBS is controlled by Larry Tisch, and run by Howard Stringer and Jeff Segansky. ABC is headed by Leonard Goldenson with Stu Bloomberg in charge of entertainment. The NBC president is Leonard Grossman and the vice-president is Irvill Siegelstein (?).

In the motion picture industry, Universal Pictures is controlled by Lew Wasserman, the chairman of MCA, the parent company. Metro Goldwyn Mayer, founded by Samuel Goldwyn, is run by Alan Ladd, his mother being Sue Carroll. Paramount Pictures is run by Mel Harris, with Mel Davis as Chairman, and Deborah Rosen as Communications Director. Fox TV is owned by Barry Diller, while Warner Brothers was founded by Jack Warnerstein. Columbia Pictures was founded by Harry Cohen.

Who controls the entertainment industry today? That is not for us to say, especially not in Canada. But we may look at the edition of the Jewish Post and Opinion for December 6, 1974, for their observation: "Jews dominate Hollywood today, as they did in its infancy. The Jewish presence in Hollywood is a historic fact. A majority of the producers and directors are Jewish, while the Writers Guild is practically 70% to 80% Jewish."

Pay close attention to the credits to the next motion picture you watch; in particular, the name of the executive producer.

Press 1 for music, press 2 for Kosher Tax, press 3 for Hollywood Name Changers, or press 4 for the Masters of Hollywood.

[pressed 9 for previous menu]

You have reached the main menu. If at any time you wish to return to the previous menu, press 9. Press 1 for the Leadership Forum. Press 2 for a history lesson. Press 3 for miscellaneous messages. Or press 5 to leave a message. Please note: once you have left your message you will be disconnected.

[pressed 5]

You will have 30 seconds to leave a message, comments, or criticism. Or, if you live in B.C.'s Lower Mainland and wish to become more active, leave an address or phone number with which you can be contacted. Wait for the beep and leave your message.

[recording ends at 1150h on 14 December 1991.]

[write/protect tabs were removed at that time by the investigator.]

[Transcription by Julie Boudreau; extra transcription and editing by Ron Yamauchi, 15 December 1991.]

Exhibit "A"

Sworn before me at Vancouver, B.C. this 29th day of January 1992 to the Affidavit of Ronald Yamauchi.

MESSAGES OF THE CANADIAN LIBERTY NET

[Supplemental to Transcript of 14 December 1991. Taped on 28 January 1992 at the Canadian Human Rights Commission, Western Regional Office.Messages from: (603) 266-9642]

Welcome to the Main Menu.

Please note: any messages and/or editorial comments found in this system are those of the contributor or boxholder, and do not necessarily reflect the opinions and/or the intentions of the Canadian Liberty Net. If at any time you wish to return to the previous menu, press 9 on your touch tone phone.

Now, press 1 for the Leadership Forum.

Press 1 for Canadian Selections, press 2 for U.S. and International Selections.

Press 1 to hear from Janice Long, wife of Terry Long.

Greetings from Caroline, Alberta, Canada.

My husband, Terry Long, Canadian leader of the Church of Jesus Christ Christian Aryan Nations, did not reappear as a witness for the Alberta Human Rights Commission Public Inquiry into cross lighting held at Provost, Alberta in September 1990.

Since September the 16th, 1991, when an arrest warrant was issued for him, the RCMP have been here to our home six times looking for him, and asking me to let him know they would make sure he gets back to the enquiry hearing safely. In other words, to arrest him.

The last time was December 6th. After our two youngest got on the bus at 8:05 in the morning, the dogs started barking. And lo and behold, there was no knock at the door, but a shout of "RCMP," as they barged in through the unlocked door, armed to the hilt in armoured vests, semi-autos or full autos, how do I know, with big things on the end of some of them, like maybe silencers. It was awful. They just kept coming and coming. And I did realize who they were when one spoke to me and called my name. He was the plainclothes cop who had been here before. This was his fourth visit. I told him Sarah was sleeping downstairs, so he at least asked them to be careful, but she almost broke down when awakened by three armed, olive drab men pointing guns into her bedroom.

[Janice Long, continued]

Looking back, It's hard to believe it was over in less than half an hour, but it had to be the worst half-hour of my life so far. They hardly spoke, some whispered, so we had no way of knowing what they were doing.

I asked this Rob if he had a search warrant. "No," he said, as laid his old defaulting arrest warrant on the table. They had information that Terry was in the house and were attempting to execute their arrest warrant. I repeat, they had no search warrant, which I stressed to the media. Later, I found out that the reason there was no search warrant was because no criminal charges had been laid. They only needed a Failure To Appear arrest warrant, to go looking for a body anywhere, anytime.

So, Sarah and I sat at the table in the kitchen, holding on to each other. I'm so sorry she to go through this, but I am so lucky she was here to be my witness. I'm sure I would have gone to pieces if she hadn't been here. The RCMP were at Terry's mother's at the same time. Thanks be to Our Father, her sister was staying with her, so she had a witness also.

These men were trampling all over the place with their radios, knives and weapons. Since Terry wasn't there, and the dog man did not find him here -- I mean, the dog and the dog man didn't find him, I've been telling all them all along that he wasn't here, and I didn't know where he was, so they finally left, after they being satisfied he wasn't here in the house, the garage, or at his mother's. They did have great opportunity to plant new and better listening devices, though. They said they were looking for a body, and not to seize any books. As far as I know, they took nothing.

To update, the public enquiry resumed on December 10, with the board deciding to end its sittings and write a decision which I expected this week or next. Harvey Kane from the JDL in Calgary and his lawyer are pushing for contempt of court charges to be filed with Court of Queen's Bench, because Terry did not return to be cross examined. They really wanted a list of members and those who invited to the cross lighting held on private property by invitation only.

In other news, Revenue Canada (Customs & Excise) have sent notice of detention determination, for a second set of four cassette tapes from the church of Jesus Christ Christians in Haydn Lake, Idaho. This makes sixteen sermons that we will not be hearing because of the religious freedom in the Soviet People's Republic of Canada, as Terry often called it. These bits of information only prove clearly how worried the Esadedomites (?) are and how tightly they are pulling the strings in their puppet show. Stay strong and hold fast to your beliefs.

Welcome to the US and International Leadership forum. Press 1 to hear from the National Alliance, press 2 to hear from Tom Metzger of W.A.R., press 3 to hear from Fred Leuchter or press 4 to hear from the Australian Nationalist Movement.

The following is a text of a message from the leader of the Australian Nationalist Movement in Perth, Jack Van Tongren:

The Australian Nationalist Movement, or ANM, is the recognized national socialist movement in Australia. It is a household word around Australia, and is particularly a talking point in the state of Western Australia.

There are two main reasons for this. First off, we physically pioneered the many forms of radical propaganda campaigns on the streets, where it counts, and physically carried it out, regardless of the dangers, and the odds stacked against us. The streets of Perth, in particular, were posted up like no other city in the Aryan world. You simply could not walk the streets, or drive along the roads, or even catch a bus or train without seeing our posters. This proved to be devastatingly effective against the system in general.

This all forced the system to cause the second reason that we became household words in Australia:

The system jailed the ANM leaders in a desperate effort to stamp out opposition to the system's deliberate destruction of white Australia. They then staged the Soviet-style show trial which effectively made the ANM leaders into martyred Aussie heroes. The trial itself was a farce and an insult to justice.

In the case of Jack Van Tongren, the ANM leader, he was not even in the court. He was convicted in his absence, just like they used to do in the Soviet Union. He was jailed without trial. Before the trial, the ANM leaders were denied their basic citizen rights to bail, through barefaced perjury from the police, two-faced hypocrisy from the judges.

And all this was quietly sanctioned, and, in fact, organized by certain high-ranking government ministers. Interestingly, these government ministers are now in deep trouble themselves because they were just too corrupt and greedy. In fact, they arranged to have us jailed in an attempt to cover up their own corruption.

In a desperate attempt to get some sort of justice in the courts the ANM leaders resorted to hunger strikes, so the system then held the young family of John Van Blitterswyk to ransom, actually putting John's wife on trial for offenses that she was totally innocent of. In due course she was convicted of not going off to the police and dobbing in her husband for being an Australian patriot.

The show trial was so farcical that the prosecutor, with the full backing of the judge, actually told the jury to "not consider what is right or wrong, moral, or just."

While the rest of the ANM leaders had to stop their hunger strikes and try to conduct some sort of defence case, Jack Van Tongren continue his hunger strike for sixty days, until the trial was over. He came very close to the point of no return, but the bottom line is, he was jailed without trial. At the time of this recording, he is in his third year of incarceration without trial.

[Australian Nationalist Movement continued]

However, there is a public backlash against the obvious treatment dealt out to the ANM leaders because of their valiant stand for white Australia. The savage jail sentences were ridiculously long. The systems credibility has been severely damaged, for they were forced to strip away their facade of respectability, and show the Australian public their ruthless ugly face. In so doing, they have proven that we were correct in all our radical actions: physically fighting against the Asian Invaders, and taking back from the foreign-owned banks, insurance companies, and multinationalists some of the money that they steal from the hard working Australian people. That money was used to run the ANM propaganda campaign.

Every people has the right and duty to fight for its own kind when it is threatened with destruction. In Australia, the main enemies are the Zionist-run traitors in our own land, and these we have fought. Our political soldiers fought against staggering odds on the streets, where it counts. We brought South East Asian investments into Western Australia down to near zero, at the time of the mass arrests in August 1989. Unlike any other radical political movement in AustralIa this century, we actually hurt the system, and forced the system to begin to play the give according to our rules.

This is the first crucial step on the road to revolution. It is now commonly known and recognized, among that tiny minority who really know what is needed and will act, that revolution is what is needed, an the ANM leaders are the leaders of that revolution.

At every step of the way in the long campaign to save our race and the nation, the ANM has acted morally and legally, according to Australian moral law. The ultimate aim of the ANM is state power, jail or no jail, come hell or high water. Only this will save our race and nation.

We have recently written the story of our campaign so far. The first version is now available. The name of the book is The ANM Story: The Pre-Revolutionary Years - 1970 to 1989 by Jack Van Tongren. This is the inside story of the ANM, from 1970 in the jungles of South Vietnam up until the mass arrest of the ANM leaders in August 1989. This is the inside, in-depth description of the development of philosophies concepts, tactics, techniques, and actual planning and execution of the various propaganda campaigns and covert operations. This is the inside story of the ideals, aspirations, sacrifices and heroism of many of the major and minor figures in the ANM campaign so far. It is the story of the depth of treachery, and the heights of courage and idealism. It is the inside warts-and-all description of propaganda campaigns plastering of thousands of posters in the darkened streets of the sleeping cities of the flaming Molotov cocktails exploding in the night and changing the course of Australian history, of the breaks carried out of multinational corporations' warehouses in order to finance ourselves. It is the story of the treason of destructive evil of the system, and the selfless idealism and devil-may-care daring and the absolute heroism of the handful of Australian patriots physically fighting for our Australian people in the face of staggering odds. It is the inside story of the various contests with the media, and the first-hand description of the brutality of the police, and the anti-Australian actions to suppress Australian nationalism, and it is the description of what the ANM fights for to save our nation and our planet. The establishment of the Australian Republic independent and free, following nature's eternal laws. The addresses to contact for the ANM story are:

1. Tony Van Blitterswyk

Flat 12, 11 Harvest Road

North Freemantle,

West Australia 6159

2. The Australian Nationalist Movement

P.O. Box 40

Summerhill,

New South Wales 2130

New South Wales Australia

Also available from the New South Wales address, is the ANM magazine, The Nationalist and various posters and stickers.

Here's to the Aryan dawn.

Yours for Australia, and your own countries wherever you are. Hail victory -- Jack Van Tongren.

Message ends.

Welcome to the history lesson. Press 1 to find out what Fred Leuchter found at Auschwitz. Press 2 to find out what the British learned from breaking the German cyphers, or press 3 for "Revelations from the Auschwitz Death Books."

With the countries of Eastern Europe now open to the West, many wartime secrets have been revealed. An important revelation made by the Soviet Union is the release of forty-six bound volumes of Auschwitz (inaudible), or death books.

These books contained a full page of information on each person who perished in the Auschwitz concentration camp. This detailed information includes the S.S. doctors' certification of the cause of death, and the exact hour and minute of expiration.

The Russians acquired these books when the Auschwitz Camp was liberated in 1945. They've been stored in the Central Soviet archives in Moscow for the last forty years.

[Death Books, continued]

How many pages of information are there in these books? Six million? Perhaps, three million? Surely, one million? Half a million? Try a mere seventy thousand.

According to Dr. Samuel Kerkovski (?) of Yadvasha (?), in light of these new revelations he said "I think the number of Jews killed must be higher than six million." In the Jewish Western Bulletin of March 15, 1990, he estimated the number of Holocaust victims would rise by five hundred thousand.

Considering the death books' record seventy thousand deaths in toto, five hundred thousand is quite a claim. Was the official figure of six million arrived at using the same mathematical genius?

According to the Jewish Western Bulletin of March 15, 1990, one Raul Hilberg (?) states, "There is a proclivity to insist that there were six million killed in the Holocaust, because that is what was said in 1945. People don't want to let go, but these numbers were calculated quickly and inaccurately at the time."

Perhaps if Dr. Samuel Kerkovski took the time to calculate more accurately, he would find only seventy thousand names in the Auschwitz death books, not five hundred thousand. These books also contain no mention of deaths by lethal gas.

Welcome to the Miscellaneous Menu. Press 1 for Music, press 2 for the ever-popular Kosher Tax message, press 3 for Hollywood Name Changers, press 4 for the Masters of Hollywood, or press 5 to hear about Racist Terror in Edmonton.

Recently in Edmonton, a gang calling itself Brown Nation terrorized white students at high schools around the Edmonton area. The following excerpts are from the Calgary Herald November 30, 1991:

Police have warned Bonnie Doon high school students in Edmonton to travel in pairs for protection, after a new teenage gang armed with guns, crowbars and baseball bats visited their school. The incident marked the latest in a string of attacks by Brown Nation gang members who had swarmed down on at least five south-side schools this fall.

"Anybody white they'll go after," said Barb, a Grade Twelve student. "They won't get you if you're coloured."

Brown Nation is made up from more than one hundred East Indian, Hispanic, Chinese, black and Pakistani youths each from 15 to 21, mainly from Harry Ainley and J. Percy Page high schools. Some don't go to school.

[Racist Terror, continued]

"Gang members put a mark on certain people and get them at school, bus stops, or just walking around," said Dan Bateman, Mr. Bateman being a Guidance Counsellor at Bonnie Doon. "They basically hit the individuals," said Mr. Bateman.

Bonnie Doon students and teachers were terrified Monday, November 25, when more than fifty Brown Nation members arrived in at least seven different vehicles and a pickup truck during lunch.

"They had crowbars and baseball bats and the teachers had to break it up," said Samantha, a Grade Eleven student.

"People are afraid to even go to the bus stop because they'll be jumped," said Lisa, a Grade Ten student. "The police told us to travel in pairs but they, the gangs, travel in groups of ten, eleven or twelve people."

Of course, not a peep has been said over this incident outside of Calgary, because the papers are too busy writing about the German youths, say, terrorizing foreigners in Germany. If a gang of fifty to one hundred whites went to various schools beating up and threatening, non-white students, the War Measures Act would be introduced and the army called in to quell the disturbance. Perhaps what we need in Canada, now is not more Third World immigrants, but a couple of thousand boisterous young Germans to set matters straight.

CHRC v CANADIAN LIBERTY NET(1)

T.D. 17/93

Decision rendered on September 9, 1993

THE CANADIAN HUMAN RIGHTS ACT

R.S.C. (1985), chap. H-6 (as amended)

HUMAN RIGHTS TRIBUNAL

BETWEEN:

AZIZ KHAKI, MICHAEL ELTERMAN and CHARAN GILL

Complainants

- and -

CANADIAN HUMAN RIGHTS COMMISSION

Commission - and -

CANADIAN LIBERTY NET and

DEREK J. PETERSON

Respondents

DECISION OF TRIBUNAL TRIBUNAL:

J. Grant Sinclair, Q.C. - Chairman

Lois Rae Serwa - Member

Raymond Kirzinger - Member

APPEARANCES:

J.L. Finlay

A. Epstein

for the Commission

I.E. Epstein, Q.C.

M.R. Epstein

for Complainants,

Aziz Khaki and Michael Elterman

D.H. Christie

for the Respondent,

Canadian Liberty Net

DATES AND LOCATION OF HEARING:

May 25 - 29, 1993 and

and August 24, 25 and 27, 1992;

Vancouver, British Columbia

TABLE OF CONTENTS

INTRODUCTION

I. THE COMPLAINTS

II. NOTICE OF HEARING

III. THE COMPLAINANTS

IV. THE RESPONDENT - CLN

V. THE RELEVANT LEGISLATION

VI. THE FACTS

a) CLN Telephone Line

b) The Messages

(i) The December Transcript

(ii) The January Transcript

c) Response to the Allegations in the Complaints

(i) Answer of Box Holder 35683

(ii) Identity of Box Holder

d) Evidence of Khaki and Elterman

e) Evidence of Gordon Thomson and Rabbi Mordeccai Feuerstein

f) Evidence of Bart Testa

(i) admissibility

(ii) Testa in chief and cross examination

VII. APPLICABLE LEGAL PRINCIPLES

a) "hatred", "contempt" and "expose"

b) Persons or group of persons acting in concert to

communicate telephonically

c) By means of the facilities of a telecommunication

undertaking within the legislative authority of Parliament

d) Likely to expose a person or persons to hatred or contempt

VIII. ORDER

IX. WITHDRAWAL OF CLN COUNSEL FROM THE HEARING

APPENDIX 1

INTRODUCTION

In December, 1991, Aziz Khaki ("Khaki"), Michael Elterman ("Elterman") and Charan Gill ("Gill") filed complaints with the Canadian Human Rights Commission ("Commission") against Derek J. Peterson ("Peterson") and the Canadian Liberty Net ("CLN"), alleging that Peterson and CLN had engaged in a discriminatory practice by communicating telephonic messages in violation of Section 13(1) of the Canadian Human Rights Act ("C.H.R.A.").

I. THE COMPLAINTS

Khaki filed four complaints, two against Peterson dated December 16, 1991 and December 20, 1991, and two complaints against CLN dated December 12, 1991 and December 20, 1991. Elterman also filed four complaints, two against Peterson dated December 13, 1991 and December 20, 1991 and two against CLN dated December 12, 1991 and December 20, 1991. The particulars of the complaints are as follows:

Derek J. Peterson and the Canadian Liberty Net discriminates against Jewish and non-white person on the grounds of national or ethnic origin, race, colour and religion, by causing to be communicated telephone messages which expose them to hatred and contempt, in violation of Section 13(1) of the Canadian Human Rights Act.

On December 11, 1991, telephone number ((604) 266-9642) provided a menu of messages claiming that the Holocaust did not occur, that a "kosher" tax of hundreds of millions of dollars is being levied on all consumers, that non-white "aliens" are importing crime and other social problems, as well as a number of other messages which expose Jewish and non-white people to hatred or contempt. The message service was in operation the following day.

Gill's complaint is against Peterson dated December 13, 1991 in which he alleged as follows:

Derek J. Peterson discriminates against individuals belonging to visible minorities on the grounds of colour and national or ethnic origin, by causing to be communicated telephonic messages from "Canadian Liberty Net", which expose them to hatred and contempt, in violation to Section 13(1) of the Canadian Human Rights Act.

On December 12, 1991, telephone number (604) 266-9642 provided a menu of messages, one of which that the white race existed apart from "sub-men", that their ancestors bred together, built civilization, and that the white race are now surrounded by a rising tide of sub-men. The message stated that there is a threat of "death by race mixing", and that it is their sacred duty to bring their "truth" to victory. The "Heritage Fund" message states that immigration of massive numbers of aliens has brought "crime, corruption and violence" to Canada. These messages expose visible minorities to hatred or contempt. The message service was in operation the following day.

As a result of these complaints and subsequent investigation by the Commission, the Commission referred the complaints to a Human Rights Tribunal and this Tribunal was appointed on March 25, 1992.

II. NOTICE OF HEARING

On May 25, 1992, at the opening of the hearing, the Tribunal was advised that the Commission, the Complainants Khaki and Elterman and CLN were represented by counsel. Peterson was not represented by counsel nor was he present at that time, nor did he appear personally or by counsel at any time during the hearing. Gill was present from time to time during the hearing but never came forward and advised the Tribunal personally or any counsel present that he wished to give evidence or make any representations in support of his complaint.

The Tribunal Officer filed a number of exhibits (exhibits T-2 to T-8) containing a series of correspondence and notices of hearing which were both sent to Peterson by way of regular mail and security post and served upon him by way of attempted service and substitutional service advising him of the appointment of the Tribunal and the date and place of the hearings. The correspondence was addressed to Peterson at 3576 West 36th Avenue, Vancouver, B.C., V6N 2S2 and the process service was also to that address.

We are satisfied on the basis of this evidence that Peterson did receive adequate notice of these proceedings and chose not to attend. In any case, we were advised on the last day of the hearing that, in fact, Derek J. Peterson is a fictitious person and this is perhaps the best explanation as to why he did not attend the hearing.

III. THE COMPLAINANTS

The complainant Khaki is a resident of the City of Vancouver and is the President of the Committee for Racial Justice ("CRJ"). The CRJ is made up of approximately eighteen religious and ethnic organizations and its objectives are to combat racism by dealing with issues of violations of human rights and to promote equality within the community. Khaki has also been the President of the Pacific Inter-Faith Citizenship Association of B.C., an umbrella group made up of various faith groups in B.C. having the objective to promote dialogue, consultation and communication among religious groups.

The complainant Elterman is a clinical psychologist engaged in private practice in Vancouver. He has occupied various positions within Jewish community organizations and most recently was the Chairman of the Canadian Jewish Congress, Pacific Region. He currently holds the position of National Vice President of the Canadian Jewish Congress. He was the Vice President of the Committee for Racial Justice for the past three years.

IV. THE RESPONDENT - CLN

The evidence was that, Mr. Finlay, Commission counsel, caused searches to be made of the corporate registries of British Columbia, Ontario and Canada. CLN is not an incorporated company in any of these jurisdictions. Mr. Christie, counsel for CLN, advised the Tribunal at the beginning of this hearing that he appeared for the CLN and was instructed to do so by someone who was authorized to give those instructions. He took the position that he had no obligation to inform other counsel or the Tribunal as to the legal status of CLN or the persons who were associated with it. Rather, he asserted that it was the obligation of the Commission and the Complainants to bring this evidence forward.

It was not until the last day of the hearing that the Tribunal obtained some information about the status of CLN and those involved with it. At that time, it was disclosed to the Tribunal by Mr. Christie, in the course of his submission for an adjournment of the hearing, that CLN is only a "concept". Mr. Christie also advised the Tribunal that he was instructed by Tony McAlear. Mr. McAlear is the facilitator of CLN and is responsible for the CLN phone lines and messages. It was also disclosed at that time that Derek J. Peterson does not exist.

Gordon Mackie, Security Manager for British Columbia Telephone ("B.C. Tel.") gave evidence that B.C. Tel. was first incorporated in 1916 under an Act of the Parliament of Canada under the name of the Western Canada Telephone Company which name was changed in 1919 to the British Columbia Telephone Company. B.C. Tel. continues to be governed by this legislation.

Mr. Mackie, produced subscriber information records for the telephone number 266-9642. Derek J. Peterson doing business as Canadian Liberty Net is shown as the subscriber and the credit information shows Tony McAlear as a partner. The service is provided at 3576 West 36th Avenue, Vancouver, commenced on October 9, 1991 and is shown as a business line.

The subscriber records for phone number 266-9532 (which is the fax number referred to in the CLN telephone messages) show the subscriber as Derek J. Peterson and indicates this to be a residential service. Under credit information, the names of Tony McAlear and Mike McAlear appear and their previous phone numbers are shown.

V. THE RELEVANT LEGISLATION

The Complainants have alleged that Peterson and CLN discriminated against them contrary to section 13(1) of the CHRA and section 13(1) 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."

Section 3(1) of the CHRA makes race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted prohibited grounds of discrimination.

VI. THE FACTS

(a) CLN Telephone Line

Ronald Yamauchi, a Human Rights Officer with the Commission, testified that he first received notice of the complaints on December 12, 1991. After receiving the complaints, Mr. Yamauchi telephoned (604) 266-9642, the number set out in the Complaints, and was connected to an automated voice message that announced itself as the Canadian Liberty Net and explained how to operate the touchtone phone message system. At that time he listened to a portion of the messages and then obtained a tape recorder and taped all of the messages from beginning to end and produced two audio cassettes which were filed as exhibits. The first audio cassette was recorded on December 14, 1991 from which Mr. Yamauchi produced a transcript of the messages ("December Transcript").

Mr. Yamauchi also called 266-9642 on January 28, 1992, recorded the messages heard at that time and produced a transcript of that cassette ("January Transcript").

During the hearing, the Tribunal listened to both cassettes and is satisfied that the Transcripts are an accurate transcription of the cassettes.

(b) The Messages

(i) The December Transcript

The December Transcript contains twelve messages which may be classified as follows:

Message 1 - Identification and Instruction Message.

Message 2 - "History Lesson from National Alliance and National Van Guard Books".

Message 3 - "U.S. Leaders Menu - Statement from Tom Metzger".

Message 4 - Fred Leuchter's First Message concerning his investigation of the alleged German gas chambers at Auschwitz, Berkenhau and Midonic (?) Concentration Camps.

Message 5 - Heritage Front, news on Ernst Zundel.

Message 6 - Heritage Front message concerning recent non European immigration to Canada and the problems they create.

Message 7 - Fred Leuchter's second message concerning death camp gas chambers capacities.

Message 8 - Fred Leuchter's third message relating to decrypted secret German codes on arrivals, deaths and departures of inmates at German death camps.

Message 9 - Music and the purging of Western Culture of worthwhile composers.

Message 10 - The Kosher Tax.

Message 11 - The Hollywood Name Changers.

Message 12 - The Masters of Hollywood.

Message no. 1 tells the caller that they have reached the CLN, Canada's "first computer operated voice message centre to promote cultural and racial awareness amongst white people." It also tells the caller that if they are offended or upset by the free expression of European cultural and racial awareness, they should not attempt to enter the CLN. If the caller wishes to hear the messages, the caller is told to press "1", or "88" to go the main menu. The message also tells the caller that the caller may send information, news clippings or essays to:

Box 35683

Vancouver, BC

Canada V6M 4G9

or send a fax to (604) 266-9532

Message no. 2 purports to be a history lesson that thousands of years ago, the first true men separated themselves from the sub-men around them and established civilization and states that today the white people of America face a similar decision, similar to the one taken by their white ancestors to hold themselves separate. The message goes on to say the white people of America are surrounded on all sides by a rising tide of the lower races who envy and hate them, who are streaming in uncounted numbers and who are encouraged to dispossess whites by the incessant anti-white drum beats of the alien controlled media. The message concludes by exhorting white people of the West not to succumb to the rising tide of colour and to take back their destiny.

Message no. 3 is a message from Tom Metzger of W.A.R., an acronym for "White Aryan Resistance" addressing his friends in Canada across the imaginary line that divides Aryan people. In this message, Metzger complains that Canada is going down the tubes because a small minority of historical parasites called ["beep"] are manipulating the country. He also says that swarms of wretched refuge have washed ashore and they are commonly known as ["beep"]. He blames these events on rotten politicians in Canada who are just as rotten as those in the U.S. and the only answer is the complete ["beep"] of them. The message contains a number of "beeps" indicating that certain words or statements that he would like to make have to be censored because of the suppression of free speech in Canada.

Message no. 4 - This is the first message from Fred Leuchter. He tells the story of when he went to Poland in 1988 to testify as an expert witness in execution technology to investigate with the alleged German gas chambers at Auschwitz, Birkenau and Majdanek. He then recounts how he has been victimized by an international conspiracy whose objective is to destroy his credibility and the media which has prevented him from pursuing his profession. Because of the effectiveness of this conspiracy, Leuchter reports that he has no business, no income, and former clients are afraid to deal with him.

Message no. 5 is a message about Ernst Zundel and his conviction in Germany by a German Judge on November 5, 1991 for making revisionist films, videos and radio broadcasts and for publishing Holocaust-doubting material. The message goes on to state that the convicting Judge never heard from Zundel or his lawyer, but accepted almost in its entirety the evidence of the prosecutor. He was convicted for saying things such as the diary of Ann Frank was a hoax and that a Jewish corpse took as long to cremate as a German corpse and that the currently believed Auschwitz death toll was exaggerated. The message pointed out that in Germany it is a crime not to believe in the Holocaust and to doubt that gas chambers existed in Nazi Germany.

Message no. 6 is a message from the Heritage Front and is a history lesson about the original settlement of Canada by pioneers from Europe, France, England, Scotland and Germany who came to Canada and succeeded in building Canada into a truly great nation. The message laments that today's immigrants bear no resemblance to the founding fathers and these immigrants come to Canada to escape the poverty and oppression of their homelands, but bring with them the very problems they sought to escape and as a consequence pockets of crime, corruption and violence are springing up in Canada. But, the message goes on to say, these new immigrants should not be blamed for trying to better their lot. Those who are blameworthy are Canada's politicians, law makers, big business and media, who for some reason peculiar to themselves, are engaging in the suicidal practice of cultural genocide.

Message no. 7 is the second message from Fred Leuchter in which he states that evidence he gave as an expert witness as to the alleged execution gas chambers at Auschwitz, Birkenau and Majdanek categorically shows that none of these facilities could have supported the multiple executions of persons that it is alleged were killed in these gas chambers. He concludes that to support the assertion that these numbers of people were killed at these facilities is both ludicrous and insulting to every individual on this planet, and those who promote this myth are irresponsible for not investigating the facts earlier and are perpetrating the greatest propaganda ploy in history.

Message no. 8 is the third message of Fred Leuchter in which he points out that secret German wartime messages decrypted by British Intelligence refer to the "daily return" of inmates at German concentration camps. The return from Auschwitz, the largest of the camps with 20,000 prisoners mentioned that the main cause of death was illness and also included references to shootings and hangings. But there were no references to deaths by gassing. The logical conclusion is that there were no gas chambers at Dachau, Buchenwald and Auschwitz and it is laughable to argue otherwise.

Message no. 9 has European culture as its theme. The message asks the question why the great composers of the West, such as Handel, Wagner and the Strauss family are so far removed from the twentieth century experience. It raises the question as to what factors are responsible for purging the West of any worthwhile composers and the answer given is that the true European expression has yielded to the alien trends of jazz and the swinging big bands, the saxophonic forefathers of contemporary rock and roll music. The message criticizes the twentieth century physical environment, with its tyrannical architecture designed to stifle any creative thought and which can never hope to be combined with great western ideas and institutions to produce a twentieth century Haydn, or Gluck. The message points out that Western men must change their contemporary ideals and environment and until this is done, Music Inc. gangsters, the so-called cultural elite of today will continue to promote cultural misfits like Stravinsky, Shostakovich and Nigel Kennedy.

Message no. 10 informs people of the hidden Kosher surtax on grocery items which will be an eye opener for them. The message tells them to inspect grocery items and they will find tiny symbols on the grocery items, such as a small K in a circle or a tiny U in a circle on the labels. These hidden cryptic symbols indicate that the product is kosher and fit for consumption under Jewish dietary law. These symbols can only be given by a Rabbi who inspects and supervises the means of production and charges a substantial fee which adds to the cost of the product which cost is passed onto the consumer. The message points out that the Jewish population in Canada is less than two percent of the total population and a small percentage of that population are Orthodox Jews and questions why should others have to pay for this insignificant minority's dietary practices. If it is important to Orthodox Jews, why don't the Rabbinical organizations perform their services for free and the answer given is that this generates a great deal of revenue, hundreds of millions of dollars in the U.S., which the Rabbinical organizations are not likely to turn down. That is why kosher symbols are found on not just food products but also cleaning products such as laundry detergent, dish washing soaps, etc.. The message provides telephone numbers of various Orthodox Jewish Councils, both in the United States and Canada, and urges callers if they have questions, to call named Rabbis, who, the message states will be happy to hear from you and are waiting for your call. The message concludes by saying don't be mislead by slick talkers, ask the hard to answer questions about cash. Remember you do not have to pay for anyone else's religion.

Question no. 11, the Hollywood Name Changers, declares Hollywood the entertainment capital of the America's and the world and Hollywood fiction is the name of the game and also the game of the name. The message lists a number of actors who have changed their names and whose original names sound Jewish. The message also contains a list of names of actors and other entertainment personalities whose names do not sound Jewish, who have not changed their names and asks the question why is there a heavy concentration of name changers involved in the movie industry, do they have something to hide? The message invites the listener to check out message no. 12 entitled, the "Masters of Hollywood."

Message no. 12, The Masters of Hollywood, states that the television and movie industries influence millions of people and shape the fabric of our society and points that this would be a very powerful tool in the hands of a special interest group. The message asserts that today television and movies contain themes which promote homosexuality, drugs, pornography, race mixing and a baseless promotion of guilt about white history. The message asks whether there is a special interest group that controls and manipulates the television and movie industry to promote these themes and then goes on to name the "Masters of Hollywood", who by their names all appear to be Jewish. The message asks the question who controls the entertainment industry today and answers the question by referring to a 1974 edition of the Jewish Post and Opinion which observed that Jews dominate Hollywood today as they did in the past.

(ii) The January Transcript

This Transcript contains four messages:

Message 1 - Statement from Janice Long, Wife of Terry Long, Canadian Leader of the Church of Jesus Christ Christian Aryan Nations.

Message 2 - Statement from Jack Van Tongren, Leader of the Australian National Movement.

Message 3 - Revelations from The Auschwitz Death Books.

Message 4 - "Brown Nation Youth Gang in Calgary".

Message no. 1 is a message from Janice Long, wife of Terry Long, the Canadian leader of the Church of Jesus Christ Christian Aryan Nations. It describes the R.C.M.P. invasion of the Long family home in 1991 looking for her husband Terry Long because he did not re-attend as a witness in a recent Alberta Human Rights Commission Inquiry into a cross burning and how the police terrorized her and other members of the Long family. After giving an account of this incident, Ms. Long refers to the Jewish Defence League in Calgary and how it is collaborating with the authorities to file contempt charges against Terry Long. She concludes her message by referring to the fact that Revenue Canada has detained more cassette tapes from the Church of Jesus Christ in Haydn Lake, Idaho, thus preventing them from hearing the sermons. As she puts it, this proves clearly how worried the Esauedomites are and how tightly they are pulling the strings in their puppet show.

Message no. 2 is from Jack Van Tongren, leader of the Australian National Movement. He tells of how the ANM has been persecuted by the authorities in Australia and that he and many of the ANM leaders have been jailed without trial for their actions which include physically fighting against the "Asian invaders" and reducing Southeast Asian investments to near zero. He fingers the main enemies of Australia as being the Zionist-run traitors. The message describes with pride the sacrifices and heroism of the many major and minor figures in the ANM campaign and the heroism of a handful of Australian patriots physically fighting for the Australian people in the face of staggering odds to save the nation and the planet.

Message no. 3 is another history lesson, "Revelations from the Auschwitz Death Books." The Death Books are 46 bound volumes and contain a full page of information on each person who perished at Auschwitz. Apparently, they have been stored in the Central Soviet Archives in Moscow for the last forty years and were recently released. The message claims that the Death Books show that only seventy thousand died at Auschwitz, not the five hundred thousand claimed by Jewish sources. It also points out that the Books contain no mention of deaths by lethal gas.

The final message, Message no. 4 is presented as an excerpt from the Calgary Herald, November 30, 1991 about a gang calling itself Brown Nation which terrorized white students at various high schools in the Edmonton area. According to the newspaper report, the Brown Nation is made up of more than one hundred East Indian, Hispanic, Chinese, Black and Pakistani youths from aged fifteen to twenty-one. The gang members mark certain white people for violence and search out these people either while they are at school or waiting at bus stops or just walking around. The message notes that nothing has been said in the press or the media about this incident beyond Calgary because the newspapers are too busy writing about the German youth terrorizing foreigners in Germany and concludes by suggesting that perhaps what is required in Canada is not more third world immigrants but a couple of thousand boisterous young Germans to set matters straight.

(c) Response to the Allegations in the Complaints

(i) Answer of Box Holder 35683

As part of his investigation, Mr. Yamauchi wrote to Box 35683 asking for information about the CLN and their response to the allegations in the complaint. This is the box number referred to in Message no. 1 of the December Transcript.

On January 2, 1992, a document entitled "Answer of Box Holder 35683" with a covering letter addressed to Paul M. Leroux, the Director of the Commission Western Region, was hand-delivered to the Commission offices ("Answer").

The Answer stated that the messages are not that of the Box Holder but of others, do not engender hatred or contempt of anyone but rather express concern for the concentration of power and the democratic process. The effect of the messages is to issue warnings, and the opinions of the authors of the messages are fair comment on matters of public interest.

The Answer then deals with each message as follows:

The National Vanguard Message expresses a legitimate apprehension and concern for the cultural and racial survival of white people. It is not intended nor does it engender hatred or contempt of any group of people.

Tom Metzger's message is a sarcastic comment on the absence of free speech in Canada and not promotion of hatred or contempt of any minority group.

Fred Leuchter's message is an accurate and fair representation of the opinions and findings of an individual and has no racial or religious implications.

The message about Ernst Zundel is a factual report on matters of public interest and is no different than any other general media presentation of his conduct and affairs.

The Heritage Front message is a political opinion directed towards protecting and preserving the white race and culture and is a matter of public interest and is fair comment.

The message dealing with what the British learned after the decrypting is a matter of fact and opinion and fair comment and does not engender racial or religious hatred of anyone or expose any religion or group to contempt or ridicule.

The kosher tax message is a matter of fact and opinion and is fair comment. It expresses concern about the danger of imposing religious duties and taxes upon the public at large and is a matter of interest affecting all of the public.

The "music" message expresses an opinion appreciative and supportive of European music and is an opinion on a matter of public interest and should not be prohibited by any lawful limitation.

The "Hollywood Name Changers" is a statement true of facts. It is not directed specifically toward nor does it mention Jews or Jewish people. It is a comment upon the tendencies of persons to mask or hide their identity which is a legitimate matter of concern of public interest.

The message Masters of Hollywood does not mention nor is it directed toward any race or religion. It is a fair comment founded upon established facts and is a legitimate expression of concern and apprehension over the concentration of wealth and power in the hands of any group or minority.

The Answer concludes that the CLN is a legitimate form of expression protected under the Charter of Rights and Freedoms and the expressions of opinion do not affect nor are they directed against any person named in the Complaint.

(ii) identity of Box Holder

Mr. Yamauchi gave evidence that he wrote to Roberta Mruk, the Privacy Coordinator at Canada Post, and formally requested that Canada Post provide the name of Box Holder 35683. This information was provided in a letter dated January 21, 1992, from Roberta Mruk in which she stated that the name and address of the person holding Box 35683 is Cori Keating, no. 38 - 3280, no. 2 Road, Richmond, B.C., V7C 4T3.

Mr. Yamauchi also testified that, on January 13, 1992 and again on January 14, 1992, he personally went to 3576 West 36th Street, Vancouver, for the purpose of speaking to Mr. Peterson or someone associated with the CLN to get their response to the allegations in the Complaints. On the first occasion, no one was home and on the second occasion, he was told that Peterson was not available to talk to him. He left his card but never heard from Peterson.

(d) Evidence of Khaki and Elterman

Khaki called the CLN phone number on December 9 or 10, 1991 and listened to the messages. He testified that he was very disturbed by the messages and found the reference to sub-hukans ages to be historically inaccurate and other of the messages to be insulting to the Jewish community.

Khaki's interpretation of the messages was challenged on cross-examination and he was asked repeatedly to point to words or phrases or individual messages that would support his conclusion that he or any other racial or religious group was singled out for hatred or contempt. Khaki consistently maintained throughout his cross examination that he reacted to the messages as a whole and on that basis he found them racist and promoting hatred and contempt for racial and religious minorities.

Khaki also testified as to incidents which he believed were consequential from the messages. On December 12, 1991, an envelope was delivered to the CRJ offices which contained a piece of paper on which the following was hand written:

"C-Racial Justice:

Remember white people are a race, too!

English people have a right and duty to protect their heritage.

No-one should be forced to sit by while foreigners rape their culture!!!!

Multiculturalism equals genocide of English heritage.

Please think hard about what you are doing!!"

Mr. Khaki further testified that he was interviewed by the Vancouver Sun on December 18, 1991 concerning the CLN messages and shortly after that interview, he was told of cross burnings on the front lawns of Vancouver north shore homes owned by Iranians. Mr. Khaki also gave evidence that messages similar to the ones broadcast by the CLN have in recent years immediately preceded a rise in the level of these types of acts in the Vancouver area. It was his observation as President of the CRJ that when messages such as these or other publications comment adversely on immigration or other activities of non-whites, there is a manifestation of racial hatred and discrimination.

Elterman listened to the CLN messages in December, 1991, and he testified that he was very angry and frustrated by what he heard.

His evidence was that the messages must be considered as a whole and throughout the messages there is the systematic implication of a conspiracy by Jews to cheat and deceive the Christian world.

Elterman's reaction was tested on cross-examination and he was questioned as whether his reaction was based on his sensitivity as a Jew. Could it not be said that the messages were an objective questioning or criticism on matters suitable for public debate? On this point, Elterman was questioned at great length and asked to point out specifically where the messages state his position, that Jews are out to deceive and cheat others.

Elterman agreed that there is no explicit wording in the messages to this effect but it is implicit in the messages as a whole. He referred as examples to the Hollywood Name Changers, the Kosher Tax and the Holocaust messages. Why list names which are predominantly Jewish sounding but which have been changed and why compare them to the list of names which have not been changed and do not sound Jewish, if not to show deception by Jews?

Elterman did not agree that the Kosher Tax message is designed to make people aware of the extra cost and to encourage them to purchase the non-kosher products. The implication of this message is that the Christian world is being manipulated into financially supporting religious organizations.

Elterman agreed that the matter of the Holocaust is open to discussion and debate and if, for example, the messages had said that it was not possible for those number of persons to have died at Auschwitz and had left it at that, it would have been within the realm of public debate. But when the message takes the next step and states that it is laughable or ludicrous to accept the numbers of person who were killed in the gas chambers, combined with the messages on the kosher tax and Hollywood messages, that goes beyond legitimate public debate and becomes a matter of holding of Jews to hatred and contempt.

Elterman was interviewed in the Vancouver Sun at the same as Khaki. Shortly after the newspaper article somebody dumped a litre of blood or bloodlike substance on the steps of Elterman's office. He had never experienced an incident of this type before and he called the police who took the details and said they would look into it, but he heard nothing further.

(e) Evidence of Gordon Thomson and Rabbi Mordeccai Feuerstein

Gordon Thomson ("Thomson"), who is also known by his Hebrew name, Yoseph Thomson, is the administrator of the Orthodox Rabbinical Council of British Columbia. The Council is responsible for the religious and administrative duties of the orthodox Jewish community and for kosher food certification in British Columbia. Kosher certification applies primarily to three areas, Orthodox Jewish institutions, business which provide facilities for social events and the manufacturing of kosher food within British Columbia.

Thomson testified that it is the manufacturers who request certification and do so because it serves their marketing and sales objectives. The Council does not solicit companies for kosher certification.

According to Thomson, the statistics are that thirty-three percent of kosher food is sold to the Jewish market, another thirty-three per cent is incidental sales and the balance to other religious communities such as Muslims, Sikhs and Seventh Day Adventists.

The council is a non-profit organization and the fees charged for certification are on a cost recovery basis. The fees vary from company to company depending on the nature and complexity of the manufacturing process. The average annual fee is $1,000.00 and for the fiscal year 1991, the certification fees received from manufacturers amounted to approximately $35,000.00.

Thomson explained the reason why it is necessary to certify non kosher food products such as cleaners or laundry detergent or food wraps. It is because these items may be used to store food or clean food containers or clean areas where the food is prepared and if the cleaning products contained ingredients that were non-kosher, it would render non-kosher any food that came into contact with these containers or areas. The same is true of food wraps.

Thomson explained that the kosher symbols on food products are of a size and nature to indicate that the product was certified as kosher but it is the manufacturer's decision how and where the kosher symbol is shown. The manufacturer's preference is that the kosher symbol be one that is recognized by the Orthodox community, something that is clear, simple to understand and that does not take up a large part of the label.

Thomson agreed that the cost of kosher certification is passed onto consumers, but this is no different than passing on the cost of any other type of advertising. His view is that manufacturers ask for certification because it gives them access to a particular market. It is no different for example, from manufacturers who pay a fee to be certified to obtain an organic food product certification. There are no religious practises involved in the certification of non-Jewish companies and the fees charged do not go to any religious organization other than the Council to pay for the costs incurred. The Council has never refused kosher certification because a person or manufacturer could not pay the fee and would not refuse a request for certification because of inability to pay.

Thomson also testified as to certain phone calls made to the Council offices and to his telephone pager. On January 9, 1992, the following messages was left on the Council answering machine:

"Kosher sucks. Why should white Americans pay for your fucking religions, huh? What do you guys think about that. You guys are all in cahoots together to destroy this fucking world we live in. You guys are anti-Christ. That is you religion. We read the Talmud. And the first, in the old Testament. You're not fooling no one, we're here, you fucking bastards. White power. Aryan victory, you fucking Jew mother-fuckers."

On January 14, 1992, two messages were left on the answering machine, one which, according to Thomson, sounded like gunshots; the other sounded like someone in severe pain or dying.

On January 31, 1992, Thomson receive a phone call on his pager. The message was from a voice he did not recognize and consisted of one word "Gone". He received two more calls that day, one he deleted by error and the other was:

God it makes me sick every time I go past the place, I want to throw up. It's absolutely revolting. I can't stand it."

According to Thomson, prior to the messages, the Rabbinical Council had never received any unusual or strange calls.

Both the Council phone number 275-0042 and the pager number 667-0375 appear at the end of the "kosher tax" message. As well, the Council phone number did appear in the "Kosher Supplement" to the Jewish Western Bulletin edition of August 29, 1991 which is usually mailed to the Jewish community and which may be available to the general public, but Mr. Thomson has never seen it on newsstands.

Rabbi Feuerstein is the Orthodox Jewish Rabbi of the Congregation Schara Tzedeck in Vancouver and has been the Rabbi of that Congregation since 1984.

Rabbi Feuerstein obtained his B.A. in History in 1969 from Harvard University, his religious training from Yeshiva University, New York and was ordained in 1973 and an M.A. in Jewish history from Harvard in 1978. He has completed two years of study for a Ph.d.

His doctoral topic is Nahamanides, a thirteenth century figure in Spain who was a leading disputant in Christian-Jewish relations in the Middle Ages on issues such as kosher, alleged anti-social activities of the Jews and the demonic conception of the Jew. In his undergraduate degree, Rabbi Feuerstein focused on Jewish history and anti-Semitic behaviour, beliefs and messages.

At Yeshiva University, his religious studies included much of Jewish history dealing with issues of money lending and other prescribed Jewish economic activity, and kosherization as an anti-social and anti-assimilation activity.

From 1980-1983, he was at the Hebrew University in Jerusalem. While on a fellowship, he studied under Jacob Katz, one of the leading authorities in the world on anti-Semitism and with other scholars in medieval anti-Semitism.

In our view, Rabbi Feuerstein is qualified to comment on the themes expressed in some of the messages.

For Rabbi Feuerstein, certain of the messages imply a conspiracy by the Jews to create and maintain a hoax. In Rabbi Feuerstein's opinion, these are classical themes. Jewish dietary laws and kosher have been the subject of anti-Semitic communications many times in the past. Basically, it was viewed as a sign of separateness, a refusal by the Jews to participate fully in society. It was considered to be an anti-social and therefore an anti-Christian mode of behaviour and was criticized. In certain medieval periods, there were papal bulls forbidding Christians to buy food from Jews just as the Jews would not eat the food of Christians, elevating this into a kind of war of religions. In the 18th century debate over the acceptance of Jews for citizenship in European countries, again the kosher laws came up as a reason to keep Jews out because in the practice of these laws, Jews maintained their separateness and did damage to the society.

The "Masters of Hollywood" raises the question of the media and the Jews' control of the media. This is a continuation of a very painful canard against the Jews going back to the "Protocols of the Elders of Zion" which was first disseminated in the 1890's and spread in the 1920's after the Russian revolution. According to Rabbi Feuerstein, the Protocols were a forgery by the Russian secret police. The Protocols allegedly were a blue print for the Jews to take control of the World by taking control of the media and commerce and subverting the society. This notion was promoted by Hitler who argued that the Jews in Germany had secretly manipulated the media and the German economy. So too do the "Masters of Hollywood" put forward that the Jews are in control of the media and have used this control to subvert society by promoting pornography, drugs and homosexuality, race mixing and guilt about white history.

Rabbi Feuerstein was cross-examined at some length particularly on the view of the Leuchter Holocaust messages. He did not agree with the suggestion that these messages are statements of fact and the purpose of the message is to put these facts into public debate, that there were no gas chambers at Dachau, Buchenwald and Auschwitz. He did not agree because the facts stated in the message do not lead to this conclusion.

According to Rabbi Feuerstein, the result of disseminating this information is to imply that those who say the gas chambers did exist and assert the facts of the Holocaust are liars who have been perpetrating a hoax. This is an allegation which imputes perversity to the Jews and brings into contempt those who would dare say that they lost their families or their friends when all along they were fooling us. Jews, thus are the ultimate hucksters who would use the death of family and friends to achieve something, the motive of which is unclear.

(f) Evidence of Bart Testa

(i) admissibility

Bart Testa ("Testa") was called by the Commission as an expert in semiotics. Semiotics is the study of communications and involves an analysis of messages as they are constructed using sign systems in order to communicate, which systems include words, gestures, images, sound and media. As a semiotician, Testa's task is to understand the means and media of communication and the context in which it occurs.

The Commission proposed that Testa give expert evidence by way of a "content analysis" of the messages in the December and January Transcripts. This involves an analysis of the messages taken together, and offering an opinion that the messages are likely to be received and interpreted in a particular way. As Testa explained it, the content of the messages and the format in which they are arranged is such that they can be interpreted as likely having a particular effect, namely exposing persons to hatred and contempt. In his analysis, Testa did not purport nor did he claim as within his expertise, to say what effect the messages actually would have on someone listening to them.

Testa is a Senior Tutor (Assistant Professor) at Innis College, University of Toronto. He obtained a B.A. in 1971 from Manhattan College, N.Y.; a M. Theology at St. Michael's College, University of Toronto in 1973; an M.A. at New York University in 1975 in Cinema Studies; and entered a Ph.D. program in theology at St. Michael's College in 1975 and left in 1979. He began teaching at Innis College in 1980.

According to Testa, the study of semiotics was founded in 1915 by the Swiss scholar, Fernand de Saussure and has become a very important science in the study of communications. Those involved in semiotics come from a variety of backgrounds and disciplines; some are initially trained in biology or literature or theology or linguistics. Semiotics, says Testa, generates its own expertise or specialization and is not the same as linguistics.

Mr. Testa pointed out that there are departments of Semiotics at various universities including the University of Indiana, Brown University and Chairs of Semiotics within the French university system, one being held by Roland Barthes until his death in the 1980's. Other scholars who have written in the area of semiotics are Roslin Krauss, Georges Botaille, Michelle Foucault, Claude Levi-Strauss, Christian Metz, Jean Boudrilland, Irwin Ponesky, Leo Steinberg, Raymond Bellour and perhaps the most well known, Umberto Eco, who not only authored "The Name of the Rose" but also the "Theory of Semiotics" in 1979.

Mr. Testa stated that he began studying semiotics in 1973 in his M.A. program and has worked in semiotics since then. He took four courses in semiotics in this program, and also took courses in linguistic analysis and studied texts by Saussure, Levi-Strauss and Barthes. Mr. Testa pointed out that his M.A. in Cinema Studies involved the analysis of film communications and the theory of communications. In this context, the theory of semiotics was examined in its application to film.

Mr. Testa has been teaching courses in semiotics since 1984, including "The Semiotics of Visual Art" and "Semiotics II: Post Structuralism" at the University of Toronto. Some of the texts used in these courses are by those authors listed above.

Mr. Testa is on the editorial board of the Toronto Semiotic Circle Monograph, an academic group who study and discuss semiotics. The monograph series is a result of the activities of this group. He has published in scholarly journals such as the Canadian Journal of Political and Social Theory and the Canadian Journal of Film Studies. He has contributed articles to two books, the articles being a semiotic analysis of the use of sound and image together and the use of language in a television documentary; and a semiotic analysis of a series of articles on new religious groups written in the "new journalism" style. Mr. Testa was the Panel Leader on the "Semiotics, The State of the Art" session at the Sixth International Summer Institute for Semiotic and Structural Studies colloquium at the University of Toronto in 1984. He is a reader for the Journal of Canadian Studies and reviews for publication in this Journal articles dealing with film scholarship and semiotics.

Mr. Christie, Counsel for the CLN vigorously opposed the admissibility of Testa's expert opinion. The 104 pages of transcript of cross examination on this issue is testimony to this. His position was that Testa should not be qualified as an expert because the field of semiotics is not a recognized field or area of expertise; and if it is, Testa is not an expert in this field; and if he is, his evidence is not relevant or helpful to the issues before the Tribunal.

In his submissions on this issue, Mr. Finlay, Commission Counsel, provided two bases for admissibility. First, section 50(2) of the CHRA permits the Tribunal to accept any evidence it sees fit whether or not admissible in a court of law. In his submission, if we determine that Mr. Testa's opinion might be of value to the Tribunal then his evidence should be admitted subject to whatever weight is appropriate. Mr. Finlay however, went further and referred us to the 1974 edition of Sopinka and Lederman, The Law of Evidence in Civil Cases which sets out the test a court would apply: (at p. 308)

"More recently, it has been said that the hallmark of admissibility simply should be whether the expert's testimony would be helpful to the tribunal. In R v. Fisher, [1961] O.W.N. 94 (C.A.) Ayleswath J.A. indicated the basic reasoning which runs through the authorities here and in England seems to be that expert opinion evidence will be admitted where it will be helpful to the jury in their deliberations and it will be excluded only where the jury can easily draw the inferences necessary without it..."

Mr. Finlay also referred us to a decision of the Tribunal in Nealy et al v. Johnson, Long, et al (1989) 10 C.H.R.R. D/6450 in which the Tribunal admitted the evidence of Dr. Jean Ravault who was qualified as an expert in communications theory including forms of communication and their impact upon those who receive them, as having the necessary expertise that might be of assistance to the Tribunal in dealing with complaint under section 13(1) of the CHRA.

Mr. Epstein, counsel for Khaki and Elterman, argued that Testa's education, training and experience in the field of communications clearly qualifies him an expert and he can provide an objective basis for analysis of the messages. Any concerns about the validity of his analysis or conclusions goes to weight and can be dealt with after he testifies.

Taking the contrary position, Mr. Christie argued that semiotics may be a field of study but it is not a recognized field of expertise. Mr. Testa has never been qualified as an expert in semiotics in any legal proceeding nor does he know of anyone who has. This Tribunal should not extend expert status to a new field of thinking or analysis unless there is a body of writing about it or there are examples of it being generally accepted as a field of expertise and some basis to empirically verify this evidence.

Further, he argued that the expert evidence of Mr. Testa is directed to and answers the very question that this Tribunal has to decide.

The question of determining the admissibility of "novel" scientific evidence derived from new principles or techniques has been a matter of considerable judicial and legal academic debate in the United States since the "Frye test", the standard for admissibility of such evidence, was first enunciated in Frye v. U.S. (293 F. 1013 (D.C. Cir. 1923)). The Frye or the "general acceptance test" as it is called is as follows:

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."

According to Sopinka and Lederman, (1992 edition), although this issue has not received the same attention in the Canadian courts, new techniques particularly in the criminal law area, have caused the courts to focus more on this question. Canadian courts have recently examined the admissibility of spectrographic voice analysis, footprint evidence, the testimony of polygraph operators and "D.N.A." fingerprinting. (see R v. Medvedew (1978) 43 C.C.C. (2d) 434 (Man. C.A.); R. v.Neilsen (1984), 16 C.C.C. (3d) 39; rev'd R. v. Stolar [1988], 1 S.C.R. 480; R v. Béland [1987] 2 S.C.R. 398; Phillion v. R [1978] 1 S.C.R. 18).

In Phillion and Béland, supra, both decisions of the Supreme Court of Canada, polygraph evidence was excluded on the basis of the traditional exclusionary rules; in Phillion because it contravened the rule against self-serving evidence; and in Béland because of the rule that a party can not bolster the credibility of its own witness. McIntyre J., writing for the majority, also stated that the question of credibility of the accused is well within the experiences of judges and for this reason, the evidence failed the "helpfulness test" for expert evidence.

The majority of the Supreme Court in these two cases did not address specifically the question of the admissibility of novel scientific evidence. Wilson J. however, dissenting on the applicability of the traditional exclusionary rules, did consider the question of new scientific evidence: (at p. 413 - 14)

"It is argued, however, by the Crown that polygraph evidence should not be admitted because it is not reliable to an acceptable standard. This is, of course, not consistent with the view of the minority of this Court in Phillion that there may be circumstances in which it would be appropriate to admit it. It is, in effect, a plea for the acceptance in Canada of the Frye test, initially applied in the United States (see Frye v. United States, 293 F. 1013 (1923) D.C. Cir) which has been considerably eroded by the Courts of that country. The general acceptance test in Frye has now given way in the United States to the "reasonable reliability" test. Mark McCormick, in his article "Scientific Evidence": Defining a New Approach to Admissibility, (1982) 67 Iowa L. Rev. 879, explains why, at 904:

The Courts that have moved away from Frye have obviously done so because of a perception that the standard is too rigid, somewhat unclear, and an unnecessary and undesirable barrier to the admissibility of scientific evidence in some situations. The effect of the departure from Frye has been a liberalization in the admission of scientific evidence. A discernable trend toward an expansive admissibility standard plainly exists.

Wilson, J. concluded that:

"Based on his analysis of the American cases modifying or rejecting Frye, McCormick concludes that the traditional test of relevancy and helpfulness provides a means for retaining the values of Frye without the cost of its disadvantages.

Having regard to the fact that it is completely open to the opposing party to cross examine the operator as to the weaknesses inherent in the process and to call an opposing expert to dispute the validity or interpretation of the results, I see no reason to exclude the evidence of the polygraph. It is, moreover, well within the purview of the judge to issue a caution to the jury not to give undue weight to polygraph evidence if he or she considers such a caution warranted."

In our opinion, although Wilson J. was speaking as a minority of the Court, it does represent the highest judicial consideration of this question for the moment.

If this is so, the test which we should apply is whether the proffered expert evidence is reliable, relevant and helpful. We take these words to mean scientific, technical or other specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue. The evidence must be based on more than subjective belief or speculation and certainly not be based on a theory solely generated for use in litigation. We were satisfied that Testa's evidence was reliable and relevant and did prove to be helpful to this Tribunal.

On the "ultimate issue" question, Sopinka and Lederman point out that:

"The majority of the Supreme Court of Canada in R v. Lupien [1970] S.C.R. 263, dismissed the proposition [the ultimate issue question] and held that a psychiatrist could testify on the very fact in issue which the court had to decide. Having gone that far, it is not surprising to see courts permitting experts to express their opinions in the context of the very words which comprise the legal definition which the court must apply. In fact, this appears to be occurring in practice if not in theory..." (at p. 541)

The authors, however, note that there are other examples where the courts appear to apply the ultimate issue doctrine. After referring to and discussing these cases, they conclude that:

"It is now generally said that if expert testimony is rejected, it is excluded, not because of any "ultimate issue" doctrine, but because such evidence is superfluous in that the Court can just as readily draw the necessary inference without any assistance from an expert." (at p. 546)

And, that let there be any doubt, the authors say, s. 40 of the draft Uniform Evidence Act 1982, makes it clear that opinion evidence on the ultimate issue should be admissible.

As to the question of whether Testa possesses the requisite education, experience and expertise to be qualified as an expert in this case, although it may not be readily apparent from his curriculum vitae, we are satisfied on the basis of his examination and cross-examination, that he does have the necessary qualifications to give the expert evidence he did. This conclusion is based on the evidence of his undergraduate and post graduate studies; the academic courses which he teaches; his scholarly publications and professional and academic activities, all of which are outlined earlier in this decision.

Finally, as to the argument that Testa's evidence has no objective verifiability and in effect, represents his own subjective interpretation of the messages, our response is, as Wilson, J. said in Béland, it is completely open to CLN's counsel to cross-examine the expert as to the weaknesses inherent in the process (which he did at great length) and to call an opposing expert to dispute the validity or the interpretation of the results.

(ii) Testa in chief and cross-examination

Mr. Testa listened to all of the messages and his analysis was based on the December and January transcripts.

In his analysis, he identified five message types according to their content:

(i) the self-reflective message - Message #1;

(ii) history lesson so designated in the message;

(iii) martyrology (which is designated the "Leadership Forum" by the messages) tells of the persecution of members of the Australian National Movement or the Church of Jesus Christ, Christian Aryan Nations;

(iv) cultural conspiracies (designated music, Hollywood Name Changers and Masters of Hollywood);

(v) kosher tax; and

(vi) the news story.

By "self-reflective" message, he means the message talks about the CLN itself and invites participation. The caller is asked to make a choice by the message itself; either the caller is offended by the free expression of European cultural and racial awareness, or wishes to learn more. If the caller chooses the latter position, the caller has in effect "agreed" to the free expression of European cultural and racial awareness.

In his analysis, Testa points out that the messages are thematically interconnected, either explicitly or implicitly, and although the succession of messages is random in that the caller can select the order of listening, their contents form a mutually self-supporting context. In this way, the messages focus attention, heighten receptivity and solicit an active engagement of the caller that arises from the caller's acceptance of the purpose "to promote cultural and racial awareness amongst white people."

The first history lesson Message no. 2 from the National Alliance and Vanguard Books offers the hypothesis that thousands of years ago, the first true men separated themselves from the "sub-men" and established civilization.

Mr. Testa offered the opinion that although the lower races are not sub-men, they are like sub-men and are "streaming in unaccounted numbers across our open borders" suggests that the problem for white people is immigration in large numbers of people who are non-white and they represent an aggressive threat to white civilization. Because they are lower races, they hate us, and they are encouraged to "dispossess" us. The message also introduces the idea of a manipulative, alien controlled media. In insisting on the decision to preserve civilization belongs to present day white people, the message seems to call for a modern separation parallel to the historic one.

In Testa's opinion, this message is a blanket attack on immigration and its contempt for non-whites is clear. In addition, the broad content of this message creates an interpretative context for further messages which warn of specific dangers and expose specific manipulations of the media, government and culture.

Testa's analysis of Message no. 3 from Tom Metzger of W.A.R., White Aryan Resistance, shows that this message picks up two themes from Message no. 2 and particularizes them. Metzger attacks immigrants to Canada terming them "swarms of wretched refuge". The second theme is a criticism of the repression of free speech in Canada done by using "beeps" (censoring words in the message) made by his own voice. This carries forward the idea from the previous message that the truth is being repressed by the alien masters who have closed off the media (including the CLN) from free speech. These "masters" who Mr. Testa claims are made objects of contempt and hatred, have specific identities but these are "beeped". This media theme is developed later in other messages and the identities are filled in.

The first Fred Leuchter message describes his own martyrology. His investigations, as an "expert witness on execution technology", concerning the gas chambers at Auschwitz in 1988, have made him the subject of an "international conspiracy" that has led to his systematic persecution. The Zundel message is another martyrology, his recent victimization at the hands of a German judge for his "Holocaust doubting material."

Leuchter's other two messages detail his evidence that the Holocaust never happened. His first argument, based on what he claims are his own investigations, is that the gas chambers did not have the capacity for mass death and this makes the Holocaust "the greatest propaganda ploy in history". His second argument is derived from historical documents (wartime German cyphers intercepted by the British) that he says did not enumerate deaths from gassing at concentration camps, from which he concludes "there were no gas chambers at Dachau, Buchenwald and Auschwitz."

Mr. Testa argues that these messages carry three strong connotations, first, the messages are based on an authoritative source; secondly, those who stand up for the truth are subject to conspiracies and persecution; and third, the same alien powers who control the media are persecuting these truth seekers.

This same logic, which Testa calls the circular logic of implication guides the caller through the "hoax" of the Holocaust messages as well.

Mr. Testa gave as an example of this circular logic of implication in the messages, the Leuchter and Zundel messages which raise the "hoax" of the Holocaust. This hoax benefits someone and is confirmed when those who reveal the truth are persecuted by an on-going conspiracy, as is the case with Leuchter and Zundel. The implication is that the self-proclaimed victims of the Holocaust, the Jews, who are still offering exaggerated calculations of Jewish deaths in the concentration camps, contrary to the facts unearthed by the researchers/debunkers, subject these truth seekers to persecution and so must be the ones behind the conspiracy. This conclusion is not stated openly but left to the circular logic of implication. The notion of the hoax of the Holocaust repeats itself in the "Auschwitz Death Books" message. The Death Books the message claims, show that only 70,000 Jews were killed at Auschwitz, not 500,000 Jews as claimed by Jewish sources.

The Heritage Front message is another history lesson which focuses nationally by retelling the story of Canada. This message points out that Canada was settled by Europeans, but since 1967, the "floodgates" were opened "to massive numbers of aliens" who bring crime, corruption and violence to Canada and "threaten cultural genocide." The message does not condemn the immigrants themselves, but rather the politicians, law makers, media and big business who form an unintelligible conspiracy for their own peculiar reasons. Later messages will identify this group.

Janice Long's testimony is another martyrology concerning an alleged invasion of RCMP officers into the Long family home in September, 1991. Her tale of persecution picks up and emphasizes Metzger's message, that politicians in power stamp out freedom of speech. She also associates them with Jews as enemies in a vaguely claimed alliance with government forces.

The message from Jack Van Tongren, the ANM leader, is another martyrology about his persecution by authorities in Australia in the ANM's "fight for its own kind" against South East Asian Investments into Western Australia and the "Asian invaders". It also celebrates the victories and heroism of the ANM members in their battles with the Australian police and justice system.

The "Music" message, Mr. Testa explained, recalls the broad historical message, except the theme here is European culture. The question is asked why the great composers such as Handel, Wagner and the Strauss family, of the past seem removed from the 20th Century and what factors are responsible for purging the West of any worthwhile composers. The idea of a "purge" is that somebody has actively eliminated this music and the reason behind the purge is that the "true European expression" has surrendered to "alien trends". The message then shifts to architecture to argue that the physical environment resulting from modern architecture which has been foisted on society stifles creative thought. It is the Music Inc. gangsters, the so-called cultural elite of today, who now control our cultural life and who are responsible for these "alien trends" in our modern music.

Hollywood Name Changers again raises, without specifically referring to Jews, the deceitfulness of Jews for why else would they change their names. Masters of Hollywood states the thesis that the media influence and shape society and in the ways they do because the media are controlled by a conspiracy. Having set up the thesis that the media are powerful and would be a powerful tool in the hands of a special interest group, essentially promoting things that threaten the cultural, moral, and racial foundations of white European society, the question of who really are the "masters of the media" gains real urgency. The next portion of the message answers that question, the Jews. Testa concludes that these two messages combined make the mass media appear as a Jewish conspiracy that has already put its anti-white and morally destructive agenda into operation. This association of Jews puts a clearly named religious group to the many references of media domination and manipulation by "alien forces" that occur in other of the messages.

The "kosher tax" message makes two express objections, it violates freedom of religion; and the money is a tax imposed to profit a religious organization. The message also warns people not to be fooled by slick talkers. The listing of the phone numbers of named rabbis and Jewish organizations, Mr. Testa argues, is sarcastic and the purpose is to cause harassment under the guise of asking questions.

This message embedded among the other messages concerning mass media seems to both support and extend the concept of a Jewish conspiracy that has made a victim of the non-Jewish majority.

Finally, there is the news story from the Calgary Herald of the Brown Nation terrorizing white high school students. The message claims that the story is not widely known because "the papers are too busy writing about German youths, terrorizing foreigners in Germany.

Testa sees this message as bringing into the open the logic of implication used in the other messages. The truth of what is happening, namely the destruction of our way of life at the hands of alien invaders, is being suppressed by juridical persecution and media conspiracy. The only answer is activism backed by the power of countering violence. Even more expressly than the messages analyzed earlier which have implied conspiracies of aliens to destroy our way of life and to persecute those who witness to the truth, this news story explicitly names the "aliens" by race and nation, accuses them of direct terrorism against whites and the media of suppressing the news and fantasizes revenge to be carried out by imported German youths.

Mr. Testa concluded that his content analysis shows two ways in which the messages may expose ethnic or racial or religious groups to hatred and contempt. First, there are accusations that certain groups are destroying the fabric of white society and culture through their very presence within our society and this truth is being deliberately hidden by a conspiracy of other groups, mainly Jews who control political life and mass media. These explicit messages are seen in the analysis of Messages no. 2 and no. 10 and portions of the December Transcript and Messages no. 2 and no. 4 of the January Transcript. The less explicit messages which are tied together by the logic of implication work by first deploring a situation in some messages, for example, lax immigration laws, the invasion of the Long home by police, the persecution of the debunkers of the Holocaust and then asking who benefits from this, who has the power to create and maintain such a deplorable situation. The answer is given in other messages by naming groups, again mainly Jews, who possess inordinate control over political power and the media.

The less explicit messages do not generally blame "non-European" immigrants with malicious intentions, (except for the Brown Nation) yet still treat the modern "sub-men" as passively a great danger to white society. Yet despite this, these blameless non-Europeans are hardly immune from contempt. The messages in his opinion pointedly attribute the blame for the destructive presence of these groups in white society on a powerful ethnic and religious group, the Jews, which, in his opinion is likely to expose Jews to hatred and contempt.

Mr. Testa was cross-examined at great length on his opinion. Having listened to the cross-examination in its entirety, we can say that every relevant question that could have been asked of Mr. Testa with respect to his opinion and conclusions was asked, sometimes more than once.

He was challenged as to why the messages would not likely cause dislike or apprehension, suspicion or fear as opposed to hatred and contempt. His response was that the messages point out today's immigrants are non-whites and are not Europeans, bear no resemblance to our founding fathers; bring poverty, crime and corruption to our society. Even though they do not intend to destroy our society, that's the kind of people they are. There is good reason not just to dislike them or be suspicious of them but to be contemptuous of them. When one is described as human refuge or a threat to the very substance of civilization that person is held up for contempt and nothing so mild as apprehension or suspicion or dislike would be appropriate.

Testa did agree that if messages amounted to fair criticism, then they would not likely expose to hatred and contempt. But fair criticism does not refer to people as human refuge or the rising tide of the lower races or sub-men. Fair criticism does not expose the object to criticism on the basis of race, religion, national origin, sexual orientation and the messages do precisely that.

Nor would Testa concede that the messages constitute fair criticism because they are critical of deception as opposed to a reference to ethnic identity, or are critical of the monopoly or concentration of power in the media. Testa argues that it's not the deception or the monopoly of power that is being condemned, rather it is Jews who are condemned.

He would agree that the concentration of power in the media is something to be wary of, and to criticize a group of people for having a monopoly of power is within the realm of criticism. But the messages do not say that a certain group has control over the media because they are intelligent or ambitious or greedy, but rather because they are Jews. Jewishness and the monopoly of power as stated in the messages, is being used for catastrophic results, the flood of human refuse, cultural genocide, destruction of white society. And why would anyone use their power for such perverse purposes, why bring down the culture and the civilization. The answer is because they are Jews, because of their alienness. Jews are aliens, they do not share our civilization, our culture, our values.

The distinction is that these messages attribute these acts to the very nature of a certain group, namely the Jews. By declaring that their power is perverse, their purpose is perverse, they are perverse and they are Jews. Jews are thus exposed to hatred or contempt.

Testa would apply the same reasoning to the martyrology messages. These messages may be a criticism of the suppression of free speech, or an accusation of police intrusion into the privacy of one's home. But they are also accusations of the persecution of the innocent. These messages point out as do the other messages that those who suppress the truth, those who persecute, those who manipulate, those who have a monopoly of power are identified as having one shared attribute, they are Jews.

It is our opinion that the messages when considered as a whole can not be characterized as being a legitimate expression of opinion on matters of public interest or debate. We consider the messages to go well beyond criticism or debate. We accept Testa's conclusions on the interpretation to be given to the messages.

In coming to this conclusion, we have also relied on the evidence of Thomson, Elterman and Feuerstein. In doing so, we are well aware that these witnesses testified in support of the complaints. But it is not so much the substance of their evidence, but rather the questions that their evidence raised for the Tribunal on the issue of legitimate criticism that we have focused on.

Thomson's evidence on the kosher certification made it clear that at least in British Columbia, requests for certification are initiated by manufacturers, the fees are not excessive and kosher products are used beyond the orthodox Jewish community.

If the kosher tax message was truly directed towards legitimate public debate why would not the maker of the message seek to confirm his version of the facts? After all, Thomson's telephone number was known, it was listed in the message. Why is the message couched in terms of hidden cryptic symbols, consumers being hoodwinked into supporting religious organizations, or warning to callers not to be misled by slick talkers.

Elterman raised the question as to why name changing is a matter for public debate. He also pointed out that many people change their names and posed the question as to why the message listed primarily Jewish sounding names. He also questioned the reason for grouping the Holocaust messages with the cultural messages, with the kosher tax. Is it because the common thread is Jews and the fact that Jews are out to deceive and cheat others.

Rabbi Feuerstein pointed out that internal logic in certain of the Holocaust messages does not support the conclusions of the messages, which conclusions suggest a hoax perpetrated by Jews on non-Jews.

It is this evidence together with the evidence of Mr. Testa that leads us to conclude that these messages can not be characterized as being fair comment or raising this subject matter for public debate.

The questions that now remain to be answered are:

(i) whether there is a person or group of persons acting in concert to communicate telephonically;

(ii) by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament;

(iii) any matter that is likely to expose an identifiable person or group to hatred or contempt.

[...]

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:

Canada  Canadian Liberty Net  Tony McAleer  Derek J. Peterson  Canadian Human Rights Commission

Canadian Liberty Net and Tony McAleer