File No. T460/1596
HUMAN RIGHTS TRIBUNAL
SABINA CITRON and TORONTO MAYOR'S COMMITTEE
ON COMMUNITY AND RACE RELATIONS
- and -
- and -
CANADIAN HUMAN RIGHTS COMMISSION
CLAUDE PENSA, Q.C. Chairperson
EVA E. DEVINS Member
HARISH C. JAIN Member
Robert Armstrong, Q.C. for Sabina Citron and the Canadian
Wendy Matheson Holocaust Remembrance Association
Ward Earle for Toronto Mayor's Committee on
Community and Race Relations
Mark Freiman for the Canadian Human Rights Commission
Douglas H. Christie for the Respondent
Marvin Kurz for the League of Human Rights of
B'nai Brith Canada
Robyn Bell for the Simon Wiesenthal Centre
Seamus Woods for Canadian Jewish Congress
Paul Fromm in person for the Canadian Association
for Free Expression
The Canadian Human Rights Commission ("Commission")
called Professor F. Schweitzer, Professor of History at Manhattan College,
as an expert historian in the field of anti-Semitism and Jewish Christian
relations. His evidence in chief was largely directed to identifying classical
anti Semitic motifs in material found on the Zundel site, the subject matter
of the alleged discriminatory practices at issue in this hearing. Prof.
Schweitzer also testified to the history of violence against Jews and the
relationship of these violent episodes to specific periods of historical
anti-Semitism. During the course of his cross examination, Mr. Christie,
acting for the Respondent Mr. Zundel, sought to question Prof. Schweitzer
on the 'truth' of the statements found on the Zundel site which were said
by the witness to be anti Semitic.
Counsel for the Commission, supported by the complainants and the interveners
save for Mr. Fromm, objected to this line of questioning. It was the submission
of the Commission that truth was not a defence to a discriminatory practice
under s. 13(1) of the Canadian Human Rights Act (herein referred to as
the "Act"). Moreover, it was strenuously argued by the Commission
that allowing Mr. Christie to pursue this line of questioning was antithetical
to the very purpose of human rights legislation. Thus, the Tribunal was
urged to rule that the truth or falsity of the statements were not relevant
to a finding under s. 13(1), and that the dignity of the complainants and
the proceedings should not be diminished by allowing the Respondent to
prove or test the truth of inherently offensive comments.
Mr. Freiman, for the Commission, relies on the judgement of Dickson J.,
as he then was in John Ross Taylor and Western Guard Party v. Canadian
Human Rights Commission et al. (1991) 13
C.H.R.R. p. D/435 for the proposition that truth is not a defence to allegations
of discrimination under s. 13(1) of the Act. We were also referred to the
Tribunal's decision in Nealy v. Johnson (1989), 10 C.H.R.R. D/6450, and
Payzant v. Canadian Human Rights Commission, T.D. 4/94
released January 24, 1997.
Mr. Christie argued that the dicta of Dickson J. in Taylor, supra, was
obiter as to whether truth was a defence, and did not address whether truth
is nonetheless relevant to proving the essential elements of the offence
under the Act. In Mr. Christie's submission, the Supreme Court of
Canada in Taylor simply considered the constitutional validity of s. 13,
and whether s. 2(b) of the Charter required that there be a defence for
truthful comment. In any event, even if Taylor
stands for the proposition that truth is not a defence under the Act, it
cannot be said that the Court ruled that truth was irrelevant.
Mr. Christie argued that the truth or factual foundation of a statement
alleged to violate s. 13(1) is relevant in two ways. He submitted first
that 'hatred' and 'contempt' were irrational emotions which were logically
inconsistent with knowledge of the truth. Second, he asserted that even
if a truthful comment exposes a group to hatred or contempt, it would not
be 'by reason of the fact
that that person or those persons are identifiable on the basis of a prohibited
discrimination'. In Mr. Christie's submission, if one could prove that
the facts contained in the statement were true then the person or group
would be exposed to hatred or contempt by virtue of their conduct or behavior,
not by reason of their race or ethnicity. Thus, in Mr. Christie's
submission, truthful statements are not capable of arousing hatred or contempt,
but, if they do, it is not related to the target group's race or ethnicity
but 'by reason of the fact' that that group has behaved in a way which,
when known by others, exposes them to intense negative emotions.
Mr. Fromm supported the position taken by the Respondent.
These arguments require an analysis of the proper interpretation to be
given to the hate message
prohibition contained in the Act. The relevant section reads as follows:
s.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 group of 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."
In considering the issue of statutory interpretation, we are guided
by the following three principles:
- In interpreting the Act we must strive for a purposive approach
to that task and afford the language a large and liberal interpretation
most consistent with achieving the objectives of the Am. (Insurance Corp.
of British Columbia v. Heerspink,  2 S.C.R. 145;
Action travail des femmes v. Canadian National Railway,  1 S.C.R.
- The general aim of anti discrimination legislation is to ensure
that individuals are free from discriminatory conduct, and is not primarily
directed to punishing the respondent.
The ultimate goal is to eliminate, as much as is possible, the discriminatory
acts and make
the victim whole for any losses sustained as a result. Human rights adjudication
penal but remedial in nature, (s. 2 of the Act: Ontario Human Rights Commission
O'Malley v. Simpsons Sears Ltd.  2 S.C.R. 536; Robichaud v. Canada
Board!  2 S.C.R. 84);
- It is the effect of an alleged action which forms the basis for
our inquiry. As a corollary to this, and as was conceded by counsel for
the Respondent, the intent of the Respondent is immaterial.
Thus, it is the effect, or in the case of s.13(1), the likely effect, of
a respondent's conduct which is relevant, not his or her intention (Ontario Human vet Commission and O'Malley v. Simpson Sears Ltd., supra;
Bhinder v. Canadian National Railway Co.,  2 S.C.R. 561; Taylor,
Bearing these principles in mind, we accept the proposition
that truth is not a defence to an alleged violation of s. 13(1) of the
Act. We note that the truthfulness of a statement is not listed
as an explicit exception in s. 15 of the Act. Moreover, in
our view, there is nothing in s. 13(1) of the Act which allows for an implied
defence of truth. We would adopt the views expressed by the Tribunal
in Taylor, T.D. 1/79 released 20 July 1979, that truthful statements may
nonetheless expose one to hate or contempt, and that that exposure is the
essential element of the prohibition found in s. 13(1). At p. 39 of its
original decision, the Tribunal in Taylor held as follows:
Strange as it may sound, the establishment of truth is not in issue in
this case. Unlike the statutory defences set out in s. 281.2(3) of the
Criminal Code which make truth a defence to criminal prosecution for public
incitement of hatred against any group distinguished by colour, race, religion,
or ethnic origin, no equivalent defence is available in the Canadian Human
Rights Act. Parliament has deemed that the use of the telephone for this
kind of discriminatory message is so fundamentally wrong, that no justification
for the communication can avail the Respondents. The sole issue is whether
the telephonic communications of the Respondents are likely to expose a
person or persons to hatred or contempt. (Cited with approval in Nealy,
supra, at D/6468, and see also Payzant. supra, at p.8).
We consider the following statement by Dickson J. in Taylor. supra,
as strong authority for the Supreme Court of Canada's concurrence with
that Tribunal's view that truth is not a defence under the Act, (at p.D/460):
In contrast to s. 319(2) of the Criminal Code, s. 13 (1) provides no defences
to the discriminatory practice it describes, and most especially does not
contain an exemption for truthful statements. Accepting that the value
of truth in all facets of life, including the political, is central to
the (Charter) s. 2(b) guarantee, the question becomes whether a restriction
upon freedom of speech is excessive where it operates to suppress statements
which are either truthful or perceived to be truthful.
Having thus stated the question, Dickson J. goes on to conclude that the
Charter guarantee of free speech does not mandate an exception for truthful
statements in the context of s. 13(1) of the Canadian Human Rights Act.
Although Dickson J. was not technically dealing with the proper interpretation
of s. 13 (1) but rather with its constitutional validity, his assessment
depended on an acceptance of the Tribunal's conclusion that the proper
interpretation of s. 13 did not permit such a defence. It would have otherwise
been totally unnecessary for the Court to consider this aspect of the constitutional
The Respondent in this case did not forcefully argue that truth was an
absolute defence in that proving the statements to be true would be determinative
of the ultimate issue before us. Rather, it was his submission that truth
was relevant to both a consideration of whether the statements are likely
to expose a person or persons to hayed or contempt, and if so whether is
it by reason of the fact that they are identifiable on a prohibited ground.
Dealing first with the submission that truth is relevant to a finding that
the message is likely to expose a person to hatred or contempt we again
turn to the decision of Dickson J. in Taylor, where at p. D/455 he quotes
at length and with approval from the Tribunal's discussion in Nealy (at
p. D/6469) of the meaning to be given to the phrase "hatred or contempt".
Dickson J. then concludes as follows, at p. D/456:
The approach taken in Nealy, supra, gives full force and recognition to
the purpose of the Canadian Human Rights Act while remaining consistent
with the Charter. The reference to "hatred" in the above quotation
speaks of ìextreme" ill will and an emotion which allows for
"no redeeming qualities" in the person at whom it is directed.
"Contempt" appears to be viewed as similarly extreme, though
it is felt by the Tribunal to describe more appropriately circumstances
where the object of one's feelings is looked down upon. According to the
reading of the Tribunal, s. 13(1) thus refers to unusually strong and
deep felt emotions of detestation, calumny and vilification,... (emphasis
We find this passage from Taylor to be instructive in that, consistent
with a focus on effect rather than intent, it is the effect of the message
on the recipient, and ultimately on the person or group vilified, that
is the focus of the analysis. The truth in some absolute
sense really plays no role. Rather, it is the social
context in which the message is delivered and heard which will determine
the effect that the communication will have on the listener. It is not
the truth or falsity per se that will evoke the emotion but rather how
it is understood by the recipient. The objective truth of
the statement is ultimately of no consequence if the subjective interpretation,
by virtue of tone, social context and medium is one which ëarouses
unusually strong and deep-felt emotions of detestation, calumny and vilification.í
Therefore, in our view, whether the message is true or not is immaterial.
Whether it is perceived to be true or credible may very well add to its
impact, but its actual basis in truth is outside the scope
of this inquiry.
Mr. Christie also argued that the truth of the statements made by the Respondent
was relevant to whether any hatred or contempt that was directed to the
complainants was "by reason of the fact" that they were members
of a group identifiable by their race, religion or ethnicity, or was by
reason of their conduct or behavior. In the context of s.
13(1) of the Act we find that this is truly a distinction without a difference.
It has long been established that in making a finding under the
Act, discrimination must only be a factor in establishing a discriminatory
practice (See Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12;
Foster Wheeler Ltd. v. Ontario Human Rights Commission and Scott (1987),
8 C.H.R.R. D/4179, Ont. Div. Court). In this case, that the group's conduct
may be viewed as a reason for their exposure to hatred or contempt does
not change the essence of the discriminatory conduct. Once a person or
group is identified, directly or indirectly, on the basis of a prohibited
ground it is somewhat disingenuous to say that it is their behavior and
not their group membership which exposes them to hatred or contempt. To
accept the Respondent's argument would clearly frustrate the legislative
intent of this section and we consider the subtle distinctions advanced
by Mr. Christie as contrary to the Act's objectives, which were stated
as follows by Dickson J. in Taylor, supra, at p. D/550:
It can thus be concluded that messages of hate propaganda undermine the
dignity and self worth of target group members and, more generally, contribute
to disharmonious relations among various racial, cultural and religious
groups, as a result eroding the tolerance and open mindedness that must
flourish in a multicultural society which is committed to the idea of equality.
In any event, we further find that the underlying truth or
falsity of the comments are not of particular utility in making the argument
on the basis advanced by the Respondent. This argument relies essentially
on correctly interpreting the statements made by a respondent perhaps with
the assistance of an expert in semantics or other relevant field, to evaluate
whether hatred or contempt is aroused ìby reasonî of the target
group or individualís race or conduct. Whether the
statements are true or not will not have any particular bearing on the
Finally we wish to address Mr. Christie's submission that it is
truth which allows us to distinguished between hate and rational discourse.
The need to ensure that there is scope for legitimate criticism was of
particular concern to Mr. Christie. In his view, a group should not be
insulated from negative comments merely by virtue of their designation
on the basis of a prohibited ground of discrimination.
Parliament has spoken and determined what the scope for legitimate criticism
will be, at least in so far as messages are communicated telephonically.
Messages will transgress our social consensus on what is to be tolerated
in the circumstances specified in s. 13 (1 ) of the Act. At
the risk of stating the obvious, the scope for negative criticism is limited
to comments which are either silent or neutral regarding membership in
a group identifiable on a prohibited ground, or which do not promote hate
or contempt. If the message ìis likely to expose a person or persons
to hatred or contemptî then, insofar as those individuals are targeted
on the basis of a prohibited ground under the Act, the comments are no
longer legitimate criticism.
In arriving at our conclusion we are mindful of the admonition of
reviewing courts that we ought to be extremely reluctant to exclude evidence
or restrict the right of cross examination. We are also sensitive to the
need to complete the hearing in a timely fashion. The present witness has
undergone cross examination for nearly three full days. Mr. Christie has
been afforded a wide latitude in the questions posed on cross examination.
As we remarked in an earlier ruling, the boundaries of permissible cross
examination do, however, have outer limits. In our view, questions
as to the truth or falsity of the statements found on the Zundel site add
nothing to our ability to determine the issues before us, and potentially
will add a significant dimension of delay, cost and affront to the dignity
of those who are alleged to have been victimized by these statements.
We obviously have not arrived at any conclusions with respect to
whether this Respondent has in fact contravened s. 13(1) of the Act. As
Counsel fully appreciate, there are many complex and difficult questions
of law and fact to be considered in this case. However, we
have concluded that it would not advance this process to convert this inquiry
into a forum for proving the truth or falsity of the impugned statements.
Given our understanding of the ultimate issues before us, it is
not helpful to this Tribunal to this expert on the underlying truth of
the statements considered by him to contain anti Semitic themes.
Dated this 25 day of May 1998.
Claude Pensa, Q.C.
Reva E. Devins
Harish C. Jain