Court File No. T-2765-96

IN THE FEDERAL COURT OF CANADA
TRIAL DIVISION

BETWEEN:

ERNST ZÜNDEL
APPLICANT
-AND-

THE ATTORNEY GENERAL OF CANADA

RESPONDENT

APPLICANT'S FACTUM

I
STATEMENT OF FACTS

1. This is an application for judicial review of the decision of the Canadian Human Rights Commission under section 49 of the Canadian Human Rights Act (hereinafter called "the Act") to request that the President of the Human Rights Panel appoint a Human Rights Tribunal to inquire into two complaints laid against the applicant under section 13 ("hate messages") of the Act on the grounds that it was satisfied that an inquiry was warranted.

A. CHRONOLOGY OF COMPLAINTS
2. Two complaints were laid against the applicant with the Canadian Human Rights Commission (hereinafter referred to as "the Commission") on July 18, 1996 and September 15, 1996 by the Toronto Mayor's Committee on Community and Race Relations and Mrs. Sabina Citron (hereinafter called the "complainants") respectively alleging that the applicant was discriminating against Jewish people in the "full text of several pamphlets... and at least ten other documents" which appeared on the Internet World Wide Web "Zündelsite". Each complainant had downloaded documents from the Web site, printed them out and attached them to their complaints. The pamphlet "Did Six Million Really Die?", for which the applicant was acquitted by the Supreme Court of Canada in 1992, was included. The documents related to the history of World War II and for the most part were historical treatises.

Kulaszka Affidavit, Exhibit A, p. 27 (Mayor's Comm. complaint)
Exhibit C, p. 140 (Citron complaint)

3. The complaints were laid under section 13(1) of the Canadian Human Rights Act.. The section 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.

4. The "Zündelsite" is an electronic site on the Internet World Wide Web located at the address http://webcom.com/ezundel/english/. It is located at the Web server called Web Communications in Santa Cruz, California. All Zündelsite documents are stored at this address in huge electronic memory banks.

Rimland Affidavit, paras. 1, 6 (at pages 335, 336)

5. The creator, designer, editor and primary electronic columnist of the Zündelsite is Dr. Ingrid Rimland who prepares all documents which appear on the site in HTML and Adobe Acrobat coding on computer equipment owned by her and located in Carlsbad, California. Dr. Rimland has sole control over the password to the site. The applicant does not know and has never known the password to the site.

Rimland Affidavit, para. 2, 4 (at page 335)

6. The World Wide Web on which the Zündelsite is located is a global storage and publication vehicle for knowledge and information from a diversity of sources which is accessible to Internet users around the world.

Langford Affidavit, para. 6

7. The focus of the Zundelsite is to scientifically and forensically examine the widely-held claims of systematic genocide of European Jews during World War II. It is a repository for information and documents not available from other conventional sources such as libraries or mainstream publications. These documents are studied by serious students and scholars from all over the world. Readers, including Ph.D. candidates, contact the Zundelsite by e-mail to request references, information, interviews and videos. The site is linked electronically by mutual consent with Nizkor, an Internet World Wide Web site opposed to the Zündelsite point of view on the history of World War II. It is also linked to the Simon Wiesenthal Centre which also opposes the Zundelsite views. The document "66 Questions and Answers on the Holocaust", one of the documents complained of by the complainants, was specifically challenged by Nizkor in an extensive rebuttal document. The Zundelsite responded with its own rebuttal. This series of rebuttals is the focus of vigorous newsgroup debates on the Internet.

Rimland Affidavit, paras. 3, 11-16 (at page 335)

8. By letter dated September 11, 1996, counsel for the applicant advised the Commission that the Zündelsite was located in the United States and therefore was beyond the jurisdiction of the Commission.

Kulaszka Affidavit, para. 4 (p. 12), Exhibit B (p. 139)

9. By letter dated October 14, 1996, the Commission advised counsel for the applicant that the investigation into the two complaints by Senior Complaints Officer Penny Goldrick had been completed. Copies of Goldrick's reports were attached and counsel was invited to comment on the reports by October 29, 1996. The investigator recommended to the Commission that the matter be referred to a human rights tribunal.

Kulaszka Affidavit, para. 6 (p. 12), Exhibit D (p. 142)

10. On October 28, 1996, the applicant responded with a 37 page submission to the Commission submitting that the complaints were vexatious and made in bad faith, that the Zundelsite was beyond the jurisdiction of the Commission as it was located in the United States, that the Internet was not a telephone, and that internal documents from the Commission itself indicated bias on the part of the Commission. It pointed out the importance and effect of the Canadian Multiculturalism Act on the proceedings.

Kulaszka Affidavit, para. 7 (p. 13), Exhibit E (p. 177)

11. By letter dated November 19, 1996, the Commission advised the applicant that it had decided, pursuant to section 49 of the Act, to request that the President of the Human Rights Tribunal Panel appoint a Human Rights Tribunal to inquire into the complaints, as it was satisfied that an inquiry was warranted.

Kulaszka Affidavit, para. 8 (p. 13), Exhibit F (p. 215)

12. By letter dated December 2, 1996, the applicant was advised by the Registrar of the Human Rights Tribunal that a Human Rights Tribunal had been appointed on November 29, 1996.

Kulaszka Affidavit, para. 9 (p. 13), Exhibit G (216)

13. By order of the Honourable Mr. Justice Noël dated March 18, 1997, the applicant was granted leave to file the affidavits of Ernst Zundel and Bernard Klatt sworn to on February 18 and 19, 1997 respectively and, further, directed that the parties shall not address any constitutional justification pursuant to section 1 of the Charter unless and until it has been found by the Judge hearing the judicial review application that specified legislation conflicts with the applicant's constitutionally protected rights in which event the presiding Judge shall issue the directions which he or she may deem appropriate as to how the matter shall proceed.

Judgment of Mr. Justice Noël, Federal Court of Canada, Trial Division, March 18, 1997.

B. THE INTERNET

14. The two complaints laid against the applicant deal with documents which appear on the World Wide Web on the Internet, on the "Zundelsite" located at the electronic address http://webcom.com/ezundel/english/. The site is located in California in the United States.

15. A person wishing to access the World Wide Web must have a computer and a link to the Internet. This could be via a dial-up telephone line, leased line, fibre-optic link, satellite link, wireless RF link, or CATV cable service. In the case of telephone dial-up, the customer must have a computer and a modem. The modem provides the link between the computer and the telephone system. It modulates and demodulates computer digital data to analog audio tones since the local telephone system works with audio tones only. The modulation/demodulation function is bi-directional.

Klatt Affidavit, para. 4, 5 (p. 7)

16. Software used by Internet Service Provider customers runs a network protocol which makes their computer part of the Internet. Customers who use CATV Cable do not use the local telephone system to access the Internet. Nor do they need a modem. Their computers are installed with a network card which provides direct access to the Internet via cable.

Klatt Affidavit, para. 6-8 (p. 8)

17. The World Wide Web server, including that on which the Zundelsite is located, is a passive system which waits for requests. When a request for a document is received from another computer, the server sends back the document requested. The user is the one who originates the request for a Web document and "pulls" the information from the Web server.

Klatt Affidavit, para. 10 (p. 9)

18. The applicant is in agreement with the description of the physical and operational characteristics of the Internet as described in American Civil Liberties Union et al. v. Reno, 929 F. Supp. 824 at pages 830 to 838 attached as Exhibit A to Margo Langford's affidavit filed in this judicial review application by the Attorney General of Canada.

19. Highlights from the description of the Internet provided by the Reno judgment are reproduced below:

(a) "Today, over 9,400,000 host computers worldwide, of which approximately 60 per cent located within the United States, are estimated to be linked to the Internet...In all, reasonable estimates are that as many as 40 million people around the world can and do access the enormously flexible communication Internet medium. That figure is expected to grow to 200 million Internet users by the year 1999." (Langford Affidavit, Exhibit A, para. 3)

(b) "The Internet is an international system. This communications medium allows any of the literally tens of millions of people with access to the Internet to exchange information. These communications can occur almost instantaneously, and can be directed either to specific individuals, to a broader group of people interested in a particular subject, or to the world as a whole." (Langford Affidavit, Exhibit A, para. 4)

(c) "Once one has access to the Internet, there are a wide variety of different methods of communication and information exchange over the network...The most common methods of communications on the Internet (as well as within the major online services) can be roughly grouped into six categories:

(1) one-to-one messaging (such as "e-mail");
(2) one-to-many messaging (such as "listserv");
(3) distributed message databases (such as "USENET newsgroups");
(4) real time communication (such as "Internet relay chat");
(5) real time remote computer utilization (such as "telnet"); and
(6) remote information retrieval (such as "ftp", "gopher" and the "World Wide Web") Most of these methods of communication can be used to transmit text, data, computer programs, sound, visual images (i.e. pictures) and moving video images." (Langford Affidavit, Exhibit A, para. 22)

(d) "The [World Wide] Web utilizes a "hypertext" formatting language called hypertext markup language (HTML) and programs that "browse" the Web can display HTML documents containing text, images, sound, animation and moving video. Any HTML document can include links to other types of information or resources, so that while viewing an HTML document that, for example, describes resources available on the Internet, one can "click" using a computer mouse on the description of the resource and be immediately connected to the resource itself. Such "hyperlinks" allow information to be accessed and organized in very flexible ways and allow people to locate and efficiently view related information even if the information is stored on numerous computers all around the world." (Langford Affidavit, Exhibit A, para. 33)

(e) "The World Wide Web was created to serve as the platform for a global, online store of knowledge, containing information from a diversity of sources and accessible to Internet users around the world. Though information on the Web is contained in individual computers, the fact that each of these computers is connected to the Internet through W3C protocols allows all of the information to become part of a single body of knowledge." (Langford Affidavit, Exhibit A, para. 34)

C. THE CANADIAN HUMAN RIGHTS COMMISSION:

(a) Statutory Framework:

20. The Canadian Human Rights Commission is an administrative body established under the Canadian Human Rights Act, 1976-77, c. 33, s. 1.

21. The purpose of the Act is set out in section 2 as follows:

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

22. Under Part II of the Act, the Commission is given, inter alia, the power and duty to develop information programs to foster understanding of the principle described in section 2 of the Act and the role and activities of the Commission thereunder, sponsoring and carrying out research programs into human rights and freedoms, reviewing regulations and by-laws for inconsistencies with the Act and endeavoring by persuasion, publicity or other means to discourage and reduce discriminatory practices as these are defined in sections 5 to 14 of the Act.

Canadian Human Rights Act, section 27

23. Under Part III of the Act, the Commission is given jurisdiction over complaints laid by persons having reasonable grounds for believing that a person is engaging in a discriminatory practice as defined in sections 5 to 14 of the Act.

Canadian Human Rights Act, section 40

24. The Commission is required by the Act to deal with any complaint filed with it unless in respect of that complaint it appears to the Commission , inter alia, that the complaint is one that could more appropriately be dealt with under an Act of Parliament other than the Canadian Human Rights Act, the complaint is beyond the jurisdiction of the Commission or the complaint is trivial, frivolous, vexatious or made in bad faith.

Canadian Human Rights Act, section 41 (b), (c), (d)

25. The Commission may designate a person to investigate the complaint. The investigator is required, as soon as possible after the conclusion of an investigation, to submit to the Commission a report of the findings of the investigation.

Canadian Human Rights Act, section 43 (1), 44

26. Upon receipt of the investigator's report, the Commission is empowered to either dismiss the complaint or request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal to inquire into the complaint if the Commission is satisfied that an inquiry into the complaint is warranted. The Commission is required to dismiss the complaint if it is satisfied that an inquiry is not warranted or that the complaint should be dismissed on any ground mentioned in section 41(c) to (e) - i.e. - that the complaint is beyond the jurisdiction of the Commission or the complaint is trivial, frivolous, vexatious or made in bad faith.

Canadian Human Rights Act, section 44

27. During a hearing before the Human Rights Tribunal, the Commission, in appearing before a Tribunal, presenting evidence and making representations to it, is required to adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint being inquired into.

Canadian Human Rights Act, section 51

28. Under section 54(1) of the Act, the only order that may be made against a person found to be engaging in a discriminatory act under section 13 ("hate messages") is a cease and desist order made under section 53(2)(a) of the Act.

29. As a commission established by an Act of Parliament, the Canadian Human Rights Commission is a federal institution bound by the provisions of the Canadian Multiculturalism Act , R.S.C. 1990, c. C-18.7, s. 3(2) which states:

3(2) It is further declared to be the policy of the Government of Canada that all federal institutions shall
(a) ensure that Canadians of all origins have an equal opportunity to obtain employment and advancement in those institutions;
(b) promote policies, programs and practices that enhance the ability of individuals and communities of all origins to contribute to the continuing evolution of Canada;
(c) promote policies, programs and practices that enhance the understanding of and respect for the diversity of the members of Canadian society;
(d)...
(e)...
(f) generally, carry on their activities in a manner that is sensitive and responsive to the multicultural reality of Canada.

30. The Canadian Multiculturalism Act declares to be the policy of the Government of Canada under s.3(1)(a) to:

recognize and promote the understanding that multiculturalism reflects the cultural and racial diversity of Canadian society and acknowledges the freedom of all members of Canadian society to preserve, enhance and share their cultural heritage;
(b) recognize and promote the understanding that multiculturalism is a fundamental characteristic of the Canadian heritage and identity and that it provides an invaluable resource in the shaping of Canada's future;
(c) promote the full and equitable participation of individuals and communities of all origins in the continuing evolution and shaping of all aspects of Canadian society and assist them in the elimination of any barrier to that participation;
(d) recognize the existence of communities whose members share a common origin and their historic contribution to Canadian society, and enhance their development;
(e) ensure that all individuals receive equal treatment and equal protection under the law, while respecting and valuing their diversity;
(f) encourage and assist the social, cultural, economic and political institutions of Canada to be both respectful and inclusive of Canada's multicultural character;
(g) promote the understanding and creativity that arise from the interaction between individuals and communities of different origins;
(h) foster the recognition and appreciation of the diverse cultures of Canadian society and promote the reflection and the evolving expressions of those cultures;
(i)...
(j)...

(b) Reasonable Apprehension of Bias by Canadian Human Rights Commission Against Applicant

31. Documents released under the Access to Information Act by the Canadian Human Rights Commission indicate that the Commission and its employees prejudged the applicant and the Zundelsite prior to any complaints being laid against him. The documents show the Commission automatically classified the applicant's opinions as "Holocaust denial" which it equated with racism, anti-Semitism and hatred. They were also equated with "gay bashing" and "white supremacy". Any research done by the Commission was aimed solely at determining the best measures to control the use of the Internet.

32. The documents are set out in chronological order below:

33. By memo dated November 30, 1994, Mr. Harvey Goldberg, Director of Policy and Planning of the Commission, requested a legal opinion from Bill Pentney, counsel for the Commission, on whether messages attached to the memo met the threshold necessary for them to be considered "hate messages" within the meaning of section 13(1) of the Act. Goldberg stated in the memo:

"[Exempted] postings are typical examples of Holocaust denial. As such, it is my view the material is inherently anti-Semitic. It is intended to foment hatred and contempt against the Jewish victims of Nazi persecution and against all Jews who maintain that the Holocaust is an historical fact."

Kulaszka Affidavit, para. 17 (p. 20), Exhibit P (p. 241)

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