Court File No. T-2765-96
IN THE FEDERAL COURT OF CANADA
TRIAL DIVISIONBETWEEN:
ERNST ZÜNDEL
APPLICANT
-AND-
THE ATTORNEY GENERAL OF CANADA
RESPONDENT
-AND-
THE CANADIAN HUMAN RIGHTS COMMISSION
INTERVENOR
RESPONDENT'S MEMORANDUM OF POINTS TO BE ARGUED
The Deputy Attorney General of Canada, on behalf of the Attorney General of Canada, submits as follows:
PART I - THE FACTS
1(a) the nature of this application
1. This is an application for judicial review, brought pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 ["Federal Court Act"]. The applicant seeks a variety of remedies pursuant to the Federal Court Act, the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ["Charter" and "Constitution Act, 1982"] and Part VII of the Constitutional Act, 1982. In essence, the applicant is attempting to use this Court to prevent both the Canadian Human Rights Commission ["CHRC"] and the Canadian Human Rights Tribunal ["Tribunal"] from carrying out their respective responsibilities under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 ["CHRA"] to deal with complaints brought against the applicant pursuant to the CHRA.
2. In particular the applicant seeks the following relief:
(a) certiorari and prohibition quashing the decision of the CHRC to request the Tribunal to inquire into two complaints laid against the Applicant and prohibiting the Tribunal from holding a hearing into the complaints, on the basis that the behaviour complained of is beyond the jurisdiction of s. 13(1) of the CHRA;
(b) certiorari and prohibition under s. 24(1) of the Charter;
(c) a declaration pursuant to s. 24(1) of the Charter that the actions of the CHRC in requesting an appointment of a Tribunal contravenes s. 2(b) of the Charter, and are not a limit prescribed by law pursuant to s. 1 of the Charter, and a permanent injunction preventing the CHRC from proceeding on the complaints;
(d) if s. 13(1) of the CHRA applies, a declaration that it contravenes s. 2(b) of the Charter and is therefore ultra vires Parliament pursuant to s. 52 of the Constitution Act, 1982; and
(e) a stay of any inquiry by a Tribunal pending the determination of this application for judicial review.
Originating Notice of Motion, December 12, 1996, Applicant's Record at 1-4.
3. The applicant's motion for a stay of the Tribunal's inquiry in respect of him was dismissed by Mr. Justice Noel on March 18, 1997. His Lordship also ordered that the parties to this application are not to address any constitutional justification pursuant to section 1 of the Charter unless it is determined that the applicant's rights under the Charter have been violated. On May 22, 1997, Mr. Justice Denault ordered that the CHRC be given intervenor status in this application.
Order of Mr. Justice Noël, March 18, 1997, Respondent's Record, Vol. 1, Tab 1 at 1-2.
Order of Mr. Justice Noël, March 18, 1997, Respondent's Record, Vol. 1, Tab 2 at 3.
Order of Mr. Justice Denault, May 22, 1997, Respondent's Record, Vol. 1, Tab 3 at 4.
1(b) the complaints made against the applicant pursuant to the CHRA
4. The complaints referred to in 2(a) were made by the Toronto Mayor's Committee on Community and Race Relations (July 18, 1996) and by Sabina Citron (September 25, 1996). The complaints allege that the applicant is acting in a manner contrary to s. 13(1) of the CHRA by placing messages on the World Wide Web ["WWW"] which are likely to expose Ms. Citron and others of the Jewish faith and ethnic origin to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination. The complainants specifically object to the content of material available on the "Zündelsite" on the WWW, which they believe is likely to expose persons of the Jewish faith and ethnic origin to hatred and contempt.
Affidavit of Barbara Kulaszka, December 16, 1997, Exhibits "A" and "C".
Applicant's Record at 27-138 and 140-141.
5. The complaints were investigated by the CHRC. The CHRC provided the applicant with a full opportunity to respond to each complaint and to comment on the CHRC investigation report, which had recommended that the complaints be referred to a tribunal for a hearing. Written submissions were made by the applicant on September 11 and October 28, 1996. The applicant, in materials totaling 38 pages, argued that the CHRC had no jurisdiction to proceed, that it was biased and that the complaints were abusive and vexatious.
Affidavit of Barbara Kulaszka, December 16, 1997, Exhibits "D" and "E",
Applicant's Record at 142-215.
6. Following its review of the investigation report and its full consideration of the applicant's submissions, the CHRC decided to request that the President of the Human Rights Tribunal Panel appoint a single tribunal to inquire into both complaints which appointment occurred on November 29, 1996. The CHRC stated that "[...] it [was] satisfied that, having regard to all the circumstances of the complaints, an inquiry thereinto is warranted."
Affidavit of Barbara Kulaszka, December 16, 1997, Exhibits "F" and "G,"
Applicant's Record at 215-218.
1(c) the Internet and the WWW
7. The Internet is neither tangible nor physical, but is described as a "giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks." The WWW is a means for the storage of documents and information, and is accessible from computers worldwide through the Internet. Even though information on the WWW is stored on particular computers belonging to a person or entity, common information storage and computer language protocols facilitate access to the information on a WWW site.
Affidavit of Margo Langford, April 14, 1997, Ex. "a", Paras. 1-3 and 33-48
Respondent's Record, Vol. 1, Tab 4(A) at 11, 17-21.
8. Presently, all access to the Internet from any point in Canada to another point in Canada, or to the United States and other countries must use the telecommunications networks owned and operated by the various Canadian telephone carriers. The need to use the Canadian telecommunications network arises from the manner in which computers communicate with each other. Generally, computer to computer transmission of information requires that the digitally formatted information in the originating computer be converted into an analogue, audio tone format in order that the information may travel over the switched telephone network to its destination, where a modem at the receiving computer permits the information to be reconstructed from analogue, audio tone format into digital form. Conversion in and out of digital format is required because the local switched telephone system works with audio tones only.
Affidavit of Margo Langford, April 14, 1997, Paras. 7-10, 12-13 and 15,
Respondent's Record, Vol. 1, Tab 4 at 6-8.
Affidavit of Bernard Klatt, February 19, 1997, Para. 5, Applicant's Record at 7.
9. Data transmission and information communication over the Internet in Canada therefore presently must rely on the Canadian telephone and telecommunications network for such transmission of information to take place. Even large-scale institutional users of the Internet generally only obtain high-speed, dedicated access to the Internet by means of dedicated telephone lines. Similarly, nearly all access gained in Canada via the Internet to any WWW site must presently use the switched telephone network.
Affidavit of Margo Langford, April 14, 1997, Paras. 10-11 and 14-16,
Respondent's Record, Vol. 1, Tab 4 at 6-8.
Cross-examination of Bernard Klatt, May 23, 1997, Questions 25-26, 46-47,
Respondent's Record, Vol. 1, Tab 6, at 258-259 and 263.
1(d) the Zündelsite and the applicant
10. The Zündelsite referred to in the above complaints is available on the Internet by means of the Canadian telephone and telecommunications network at http://www.webcom.com/ezundel/english. Its electronic files are stored on a computer server located in or about San Diego, California. The Zündelsite is administered by Ingrid Rimland, who also lives in the San Diego area.
Affidavit of Ingrid Rimland, December 13, 1996, Paras. 1, 2, 5 and 6,
Applicant's Record at 335-336.
11. Among the materials available on the Zündelsite are numerous documents written or generated by the applicant. Some of these documents were previously disseminated by the applicant throughout Canada and elsewhere. Other documents are created by the applicant specifically for distribution over the Zündelsite. The applicant generates these materials in Toronto and arranges for them to be sent to Ms. Rimland via the Canadian telephone and telecommunications network, i.e. by telephone, telephone facsimile transmission or e-mail over the Internet. Ms. Rimland then edits this material and submits it to the applicant for his final approval. Ms. Rimland places the final version of these materials, as approved by the applicant, onto the Zündelsite, having coded this material into WWW compatible computer code.
Affidavit of Ingrid Rimland, December 13, 1996, Paras. 1-7, 9, 10 and 17,
Applicant's Record at 335-338.
Cross-examination of Ingrid Rimland and Exhibits "1" and "2" thereto, May 23, 1997, Questions 70-99, 108-112, 123-131, 142-178, 182-196, 200-210, 236-267, 277-281 and 294-323, Respondent's Record, Vol. II, Tabs 7, 7(a) and 7(b) at 285-291, 292-293, 295-297, 299-306, 308-311, 312-314, 319-325, 326-327, 330-335, 366-367, 373, 379, 391, 402, 425, 432, 438-439, 445-446, 450, 456, 466, 479, 484, 493, 501, 503, 508, 520, 522, 534, 543, 552-553, 568, 570, 588, 590, 592 and 596.
12. The applicant is actively involved in decisions concerning the Zündelsite. In addition to his role as originator of the many documents thereon which bear his name, the applicant has been involved in the decision making process concerning links with other sites on the WWW and has been the person to whom inquiries regarding particular Zündelsite issues have been referred. Communications which originate from the applicant in Toronto routinely refer to the Zündelsite as "my (-)" or "our Zündelsite" and Ms. Rimland, in materials edited and entered onto the Zündelsite by her, is referred to by the applicant as "my Webmaster." These same materials stress the importance which the applicant places on the broad scope and reach of the WWW an the Internet.
Cross-examination of Ingrid Rimland and Exhibits "1" and "2" thereto, May 23, 1997, Questions 70-99, 108-112, 123-131, 142-178, 182-196, 200-210, 236-267, 277-281 and 294-323, Respondent's Record, Vol II, Tabs 7, 7(a) and 7(b) at 285-291, 292-293, 295-297, 299-306, 308-311, 312-314, 319-325, 326-327, 330-335, 366-367, 373, 379, 391, 402, 425, 432, 438-439, 445-446, 450, 456, 466, 479, 484, 493, 501, 503, 508, 520, 522, 534, 543, 552-553, 568, 570, 588, 590, 592 and 596.
II - ISSUES
13. The CHRA prima facie applies to the applicant's use of the Internet and any action of either the CHRC or the Tribunal to investigate or inquire into this use is within the statutory mandate of both entities.
14. There is no evidence on which a reasonable person could conclude that the CHRC was in any way biased against the applicant when it considered the complaints against him.
15. The investigatory and inquiry functions of both the CHRC and the Tribunal do not constitute a violation of any of the applicant's rights protected under the Charter.
16. There is no evidentiary basis for concluding that s. 13(1) of the CHRA has violated any rights of the applicant protected under the Charter.
III - LAW AND ARGUMENT
III(a) jurisdiction of the CHRC and the Tribunal
17. Both the CHRC and the Tribunal may properly rely on s. 13(1) of the CHRA as a basis for investigating the applicant's activities on the Internet. This subsection 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 telecommunications 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.
and, in French:
Constitue un acte discriminatoire le fait, pour une personne ou un groupe de personnes agissant d'un commun accord, d'utiliser ou de faire utiliser un téléphone de facon répétée en recourant ou en faisant recourir aux services d'une entreprise de télécommunication relevant de la compétence du Parlement pour aborder ou faire aborder des questions susceptibles d'exposer a la haine ou au mépris des personnes appartenant a un groupe identifiable sur la base des creteres énoncés a l'article 3.
CHRA, s. 13(1)
III(a)(i) evidence placing the applicant's activities within s. 13(1) of the CHRA
18. The complaints against the applicant, and the actions of both the CHRC and Tribunal in response thereto do not purport to extend beyond Canada's boundaries. Rather, they constitute allegations, and investigations into those allegations, that the applicant is using the Canadian telecommunications network to expose persons of Jewish faith and ethnic origin to hatred and contempt. The location of the Zündelsite server in the United States is irrelevant to any examination of whether the applicant, in Canada, has used a telecommunications undertaking within the legislative authority of Parliament in a manner which contravenes s. 13(1) of the CHRA.
Cross-examination of Ingrid Rimland and Exhibits "1" and "2" thereto, May 23, 1997, Questions 70-99, 108-112, 123-131, 142-178, 182-196, 200-210, 236-267, 277-281 and 294-323. Respondent's Record, Vol. II, Tabs 7, 7(a) and 7(b) at 285-291, 292-293, 295-297, 299-306, 308-311, 312-314, 319-325, 326-327, 330-335, 366-367, 373, 379, 391, 402, 425, 432, 438-439, 445-446, 450, 456, 466, 479, 484, 493, 501, 503, 508, 520, 522, 534, 543, 552-553, 568, 570, 588, 590, 592 and 596.
19. The evidence is that the applicant deliberately uses the Zündelsite as forum for the dissemination and publication of material which he creates, edits and approves. The applicant views Ms. Rimland as "his" webmaster and sees the Zündelsite as a communications vehicle which he may exploit to achieve this aims. Further, notwithstanding Ms. Rimland's copyright over a portion of the material posted to the Zündelsite, she herself seeks the applicant's approval before posting his material and her own copyrighted materials on the Zündelsite. The applicant is part of the "Zündel team" with whom Ms. Rimland consults about the Zündelsite: she seeks his guidance and follows his instructions in respect of certain issues respecting the Zündelsite's design.
Cross-examination of Ingrid Rimland and Exhibits "1" and "2" thereto, May 23, 1997, Questions 70-99, 108-112, 123-131, 142-178, 182-196, 200-210, 236-267, 277-281 and 294-323. Respondent's Record, Vol. II, Tabs 7, 7(a) and 7(b) at 285-291, 292-293, 295-297, 299-306, 308-311, 312-314, 319-325, 326-327, 330-335, 366-367, 373, 379, 391, 402, 425, 432, 438-439, 445-446, 450, 456, 466, 479, 484, 493, 501, 503, 508, 520, 522, 534, 543, 552-553, 568, 570, 588, 590, 592 and 596.
20. The communications sent from the applicant in Toronto to Ms. Rimland in San Diego for dissemination on the Zündelsite must use telecommunications undertakings within the legislative authority of Parliament. Material sent from computer to computer presently must use the switched telephone networks of Canadian telephone service providers, as must telephone calls and telephone facsimile transmissions from Toronto to San Diego, and vice versa. Similarly, the Zündelsite is presently only accessible from Canadian computers with Internet access over those same telecommunications undertakings within the legislative authority of Parliament, given the Internet's present reliance on the local switched telephone network.
Cross-examination of Ingrid Rimland and Exhibits "1" and "2" thereto, May 23, 1997, Questions 70-99, 108-112, 123-131, 142-178, 182-196, 200-210, 236-267, 277-281 and 294-323. Respondent's Record, Vol. II, Tabs 7, 7(a) and 7(b) at 285-291, 292-293, 295-297, 299-306, 308-311, 312-314, 319-325, 326-327, 330-335, 366-367, 373, 379, 391, 402, 425, 432, 438-439, 445-446, 450, 456, 466, 479, 484, 493, 501, 503, 508, 520, 522, 534, 543, 552-553, 568, 570, 588, 590, 592 and 596.
Affidavit of Margo Langford, April 14, 1997, Paras. 7-10, 12-13 and 15,
Respondent's Record, Vol. 1, Tab 4 at 6-8.
Affidavit of Bernard Klatt, February 19, 1997, Para. 5, Applicant's Record at 7.
21. Therefore, the applicant, alone and as part of the "Zündel team", is communicating telephonically or causing to be communicated, repeatedly, in whole or in part by means of the facilities of telecommunications undertakings within the legislative authority of Parliament. All of the requirements for jurisdiction under s. 13(1) of the CHRA are met or likely met, and neither jurisdictional disqualifications in s. 13(2) or (3) apply.
CHRA, s. 13(1)-(3)
III(a)(ii) proper interpretation of s. 13(1) of the CHRA
22. The Supreme Court of Canada has consistently stated that human rights legislation has a unique quasi-constitutional nature, and that it is to be given a large, purposive and liberal interpretation. The CHRA fosters the principle that all Canadians deserve to be treated with dignity and are entitled to be free from discrimination or attacks on their human dignity. The applicant's interpretation of "telephone" or "telephonic" in s. 13(1) of the CHRA is sterile and wholly inappropriate for the interpretation of the CHRA, being based on the narrow interpretative principles outlined in excise and taxation cases.
Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 544 at 611-611 ["Mossop"]
23. Further, the applicant's interpretative argument is based on a technical inaccuracy. The technical evidence with respect to the Internet is clear: computer to computer communications are "telephonic" transmissions within the scope of s. 13(1) of the CHRA. The evidence of the applicant's own expert, Bernard Klatt, is that a modem is required in order to "modulate and demodulate computer digital data to analog audio tones since the local telephone system works with audio tones only." That is, the local switched telephone network, which presently carries nearly all Internet transmissions in Canada, can only transmit digital data after it has been converted by a modem into analogue audio tones. A developing technology called Internet telephony confirms the telephonic basis of nearly all present computer communication, since it permits the use of computers as one would normally use a traditional telephone apparatus for conversations.
Affidavit of Margo Langford, April 14, 1997, Paras. 7-10, 12-16,
Respondent's Record, Vol. I, Tab 4 at 6-8.
Affidavit of Bernard Klatt, February 19, 1997, Para. 5, Applicant's Record at 7.
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