Court File No. T-2765-96
IN THE FEDERAL COURT OF CANADA
THE ATTORNEY GENERAL OF CANADA
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
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
(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");
(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
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;
(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
(d) recognize the existence of communities whose members share a common
origin and their historic contribution to Canadian society, and enhance
(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
(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;
(b) Reasonable Apprehension of Bias by Canadian Human Rights Commission
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
"[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)