24. The above evidence on the "telephonic" nature of the Internet is consistent with the definition of the word "telephone" as a generic type of instrument which transmits sound to a distance by wire or cord or radio by converting acoustic vibrations to electrical signals for transmission. The applicant has confused the generic apparatus (or "apparell"), commonly called a "telephone", with the primary definition of a telephone or telephonic instrument, which is a device for the transmission of sound. A purposive and technically accurate interpretation of the words "telephonic communications" within s. 13(1) of the CHRA must include telephone facsimile messages and communications over the Internet. Further, there can be no dispute that these telephonic communications are within the legislative competence of Parliament.

Concise Oxford Dictionary, 7th Ed. (Clarendon Press: Oxford, 1984)

Le petit Robert I, deuxieme éd. (Dictionnaires le Robert: Paris, 1992)

Téléphone Guevremont Inc. v. Québec (Régie des télécommunications), [1994] 1 S.C.R. 878 at 879.

III (a) (iii) prematurity

25. Any evidence and arguments relating to the interpretation of s. 13(1) of the CHRA should properly be raised before the Tribunal itself, as should an opportunity be given to the Tribunal to assess the jurisdictional facts and issues on the basis of all the evidence and submissions of the parties before it. This Court should not fragment the careful scheme set out by Parliament in the CHRA for proceedings relating to human rights complaints.

Re A.G. Canada and Cumming, [1980] 2 F.C. 122 at 130-131 (T.D.)

Gordon Band Council v. Laslo, [1996] F.C.J. No. 327 (F.C.T.D.)

Canadian Pacific Airlines Ltd. v. Williams, [1982] 1 F.C. 214 at 215 (C.A.)

Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R.(3d) 798 at 800 (Div. Ct.) ["Ontario College of Art"]

26. No basis is advanced why the Tribunal is unable to hear evidence and submissions relating to the scope and proper interpretation to be given to s. 13(1) of the CHRA or to make a determination as to whether the allegations that the applicant acted contrary to that section have been established. As noted by Mr. Justice LaForest:

Every administrative body, to one degree or another, must have the power to interpret and apply its own enabling statute. If this were not the case, it would be at the mercy of the parties before it and would never be the master of its own proceedings.

Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at 891-892 ["Cooper"]

III(b) bias

III(b)(i) absence of evidence of bias

27. A reasoned apprehension of bias must be established upon substance, not suspicions or sensitivities. The applicant's bias allegations against the CHRC are without support in evidence or in law. Acceptance by some CHRC staff of the existence of the Holocaust, and linking Holocaust denial to anti-Semitism does not create a reasonable apprehension of bias. The evidentiary basis for the applicant's "bias" claim consists merely of excerpts of internal CHRC memoranda. There is no evidence whatsoever of any predisposition or prejudgment by the particular CHRC staff who dealt with the two complaints brought against the applicant.

Committee for Justice and Liberty Foundation v. National Energy Board, [1978] 1 S.C.R. 369 at 394-395.

Affidavit of Barbara Kulaszka, December 16, 1997, Exhibits "P"-"Z",
Applicant's Record at 241-310.

28. The applicant's bias allegations betray a misunderstanding of the role of the CHRC. The CHRC has a mandate to educate, inform and advise the government, public and courts on all matters involving human rights, in addition to its responsibility for processing human rights complaints under the CHRA. The Supreme Court described the role of the CHRC in Cooper:

The CHRA sets out a complete mechanism for dealing with human rights complaints. Central to this mechanism is the Commission. Its powers and duties are set out in ss. 26 and 27 and Part III of the CHRA. Briefly put, the Commission is empowered to administer the CHRA, which includes among other things, fostering compliance with the CHRA through public activities, research programs, and the review of legislation. It is also the statutory body entrusted with accepting, managing and processing complaints of discriminatory practices.

Cooper, supra, at 889.
Mossop, supra, at 584.

29. The CHRC is authorized by statute to undertake the roles of educating and informing people about human rights, as well as investigating or instigating human rights complaints. It is not an adjudicative body - that is the role of the Tribunal appointed under the CHRA. In carrying out its functions under the CHRA to promote equality and to thwart discrimination, the CHRC thereby promotes the values underlying the Canadian Multiculturalism Act.

CHRA, ss. 26, 27, 40, 43, 44(1).
Canadian Multiculturalism Act, R.S.C. 1985, c. 24 (4th Supp.)

30. The CHRC's investigation and disposition of the complaints against the applicant show no evidence of bias. In such functions, the CHRC is not required to comply with the formal rules of natural justice but only the lesser requirements of procedural fairness. The CHRC complied with those lesser requirements: the applicant knew the full nature of both complaints and was given a full opportunity to respond to them. The decision of the CHRC to refer the complaints to the Tribunal makes clear that the CHRC considered the applicant's submissions and all the circumstances surrounding the complaints. The exercise of such a discretionary power pursuant to a statute does not constitute evidence of bias.

Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 at 897-900.

Affidavit of Barbara Kulaszka, December 16, 1997, Exhibits "A"-"e",
Applicant's Record at 27-214.

CHRA, ss. 26, 27, 40, 43, 44(1).

31. There is no substance to the allegations of bias: (1) there is no evidence that the CHRC staff who dealt with the complaints against the applicant had in any way prejudged the issues; (2) there is no evidence that the applicant was denied a full opportunity to review and respond to the complaints and the CHRC's investigation reports; and (3) there is no evidence that the general human rights promotion activities of the CHRC, required by its constituent statute, prevented a full and fair review of the particular allegations against the applicant. The applicant's submissions are similar in substance to those made to the British Columbia Court of Appeal in Bennett v. British Columbia (Securities Commission) and rejected by that court:

Counsel were unable to refer us to a single reported case where an entire tribunal of unidentified members had been disqualified from carrying out statutory responsibilities by reason of real or apprehended bias. We think that not to be surprising. The very proposition is so unlikely that it does not warrant serious consideration.

Bennett v. British Columbia (Securities Commission) (1992), 94 D.L.R. (4th) 339 at 349 (B.C.C.A.) ["Bennett"]


III(b)(ii) prematurity

32. The applicant's arguments respecting bias are properly made before the Tribunal which has the power to consider whether the referral to it by the CHRC of the complaints against the applicant was in any way tainted by bias. This Court should not permit the applicant to fragment, disrupt and delay matters which are properly before a tribunal with full jurisdiction to hear evidence and submissions respecting such allegations.

Ontario College of Art, supra, at 800.

III(c) Charter and the Constitution Act, 1982

33. The applicant appears to seek two forms of relief under the Charter and the Constitution Act, 1982: (1) a declaration pursuant to s. 24(1) of the Charter that his s. 2(b) rights have been infringed by the actions of the CHRC, and (2) a declaration pursuant to s. 52 of the Constitution Act, 1982 that s. 13(1) of the CHRA violates s. 2(b) of the Charter, should it be determined that s. 13(1) is engaged. Both claims are inappropriate, premature, or without the necessary factual foundation.

III(c)(i) prematurity

34. The applicant's claim that his rights under the Charter have been infringed is wholly premature. The CHRC's decision to refer the subject complaints to the Tribunal has not in any way affected the applicant's freedom of expression. The Tribunal itself has not yet made any determination as to the merits of the complaints made against the applicant. At most, the applicant faces a risk that what might occur before the Tribunal might affect one of his interests which might be protected by the Charter. The entire basis of the applicant's Charter challenge is premature and based solely on speculation.

Bennett, supra, at 349.

III(c)(II) actions of the CHRC

35. The Applicant requests a "Declaration pursuant to Section 24(1) of the Charter that the actions of the CHRC is [sic] in contravention of Section 2 (b) of the [Charter] and not a limit prescribed by law [...]". There is no evidence before this court of any deprivation by the CHRC of the applicant's rights under s. 2(b) of the Charter. The applicant advances no grounds in support of his allegation that the CHRC's actions somehow contravene his rights protected by the Charter.

36. It is a trite and well-established principle of Charter jurisprudence that the absence of evidence of deleterious effects must be fatal to any claim that an individual's rights under the Charter have been infringed by government action. The applicant's Charter allegations respecting the CHRC suffer from this fundamental defect.

McKay v. Manitoba (Attorney General), [1989] S.C.R. 357 at 361-366 ["McKay"].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 at 1099-1102.

37. Finally, the applicant cannot ground a Charter claim on the basis of what the Tribunal may do to interfere with some alleged right. It is entirely open to the Tribunal to dismiss the complaints. Any allegation of some potential infringement of the applicant's rights under the Charter is speculative.

Bennett, supra at 349.

III(c)(iii) s. 13(1) of the CHRA

38. The applicant seeks to challenge the constitutionality of an act of Parliament, but has failed to state a constitutional question and has also failed to provide notice thereof to the Attorney General of Canada and the attorneys general of each province and territory. This notice obligation is mandatory. Absent such notice, the respondent submits that the applicant's challenge ought not to be considered.

Federal Court Act, s. 57.

39. Further, the Applicant alleges that s. 13(1) of the CHRA, should it be engaged, constitutes an infringement of his rights under s. 2(b) of the Charter. Any argument concerning the validity of s. 13(1) of the CHRA is completely disposed of by the Supreme Court of Canada's decision in Taylor v. Canada (Human Rights Commission), in which the Court held that s. 13(1) of the CHRA infringed s. 2(b) but was saved under s. 1 of the Charter. The applicant seeks to rely on his use of the Internet to distinguish Taylor, which argument fails to appreciate that s. 2(b) of the Charter protects a person's right to expressive activity itself, not the particular vehicle chosen for that expression. The Supreme Court's decision that s. 13(1) of the CHRA is a reasonable limit on freedom of expression is not altered by how the expressive activity caught by s. 13(1) takes place.

Taylor v. Canada (Human Rights Commission) , [1990] S.C.R. 892 at 915-940 ["Taylor"]

40. The applicant, in ground (c) of his Originating Notice of Motion, states that s. 13(1) of the CHRA "[...] should be re-considered under section 52 of the Constitution Act, 1982 as entirely different than was considered in the Taylor case." The respondent notes that no recourse may be had to s. 52 of the Constitution Act, 1982 unless the impugned statutory provision is itself unconstitutional. Given the Supreme Court's decision in Taylor upholding the constitutionality of s. 13(1) of the CHRA, the applicant's reliance on s. 52 of the Constitution Act, 1982 is wholly misplaced and wrong in law.

41. Even if this Court were to consider permitting the applicant to relitigate settled law with respect to s. 13(1) of the CHRA, there is simply no evidence of present deleterious effects of that provision on the applicant's right to freedom of expression. As noted in MacKay, supra, "Charter decisions should not and must not be made in a factual vacuum."

McKay, supra, at 361-366.

IV - ORDER SOUGHT

42. It is respectfully submitted that the applicant's Originating Notice of Motion, dated December 17, 1996, be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED
Toronto, June 30, 1997

CHARLES D. JOHNSTON
MICHAEL MORRIS

COUNSEL FOR THE
ATTORNEY GENERAL OF CANADA