34. In December of 1994, Goldberg posted a notice on the Internet in response to comments made by Commission member Sigmund Reiser at the December 1994 commission meeting at which time Reiser expressed concern "about the use of the Internet to disseminate hate propaganda." The notice read as follows:CHRC-Application for Judicial Review - Part 2 of 4
"The use of the Internet by white supremacists, Holocaust deniers, gay bashers and other elements of the extreme right is matter of concern to human rights agencies. I work for the Canadian Human Rights Commission. I am currently doing research on the use of the Internet for the propagation of hate material. The purpose of the research is to determine what measures could be considered to control the use of the Net for this type of purpose. I would appreciate hearing from anyone who has any views, information or comments on this subject or who know of anywhere on the Internet where this matter is discussed."
Kulaszka Affidavit, para. 18, 19 (pp. 20, 21), Exhibit S (p. 251)
35. Goldberg received numerous e-mail responses to his message, many of which informed Goldberg that the Internet was a medium of interactive exchanges where debate and discussion were used to destroy the credibility of racists and others, not censorship.Kulaszka Affidavit, para. 19 (p. 21)
36. By memo dated March 14, 1995, Goldberg forwarded copies of the "1994 B'nai Brith Audit of Anti-Semitic Incidents" to Commission members Max Yalden, Michelle Falardeau-Ramsay and to J. Hucker. Goldberg summarized what he termed "interesting analysis and commentary" by B'nai Brith on the applicant as follows:"In 1994 Canada remained a major centre of Holocaust denial, which is anti-Semitism masquerading as a respectable discipline. Ernst Zundel's Samisdat Publishing continued to operate from Toronto, distributing material (books, newsletters, videotapes) in 15 languages to 40 countries."
Kulaszka Affidavit, para. 20 (p. 21), Exhibit T (p. 253)
37. Goldberg noted in the March 14, 1995 memo that "Policy Branch maintains on-going liaison with BBC [B'nai Brith Canada] through its Ottawa based Director of Government Relations, Mr. Rubin Friedman.".Kulaszka Affidavit, para. 20 (p. 21), Exhibit T (p. 253)
38. The "1994 B'nai Brith Audit of Anti-Semitic Incidents" referred numerous times to the applicant as a part of the racist right (p.2), a person prosecuted for promotion of hate against Jews in the form of Holocaust denial (p. 12), a "Holocaust denier" spreading hate on the Internet (p. 17), and a person spreading anti-Semitism through "Holocaust denial" (p. 20).Kulaszka Affidavit, para. 21 (p. 22), Exhibit U (p. 256)
39. In March of 1995, the Policy and Planning Branch of the Commission produced a report entitled "The Prohibition of Hate Messages under the Canadian Human Rights Act" which dealt with the Internet. It concluded there was "clear evidence" that individuals and groups were using the Internet for the dissemination of hate messages.Kulaszka Affidavit, para. 22 (p. 22), Exhibit V (p. 272)
40. By memo dated July 24, 1995 from Goldberg to Commission chairman Max Yalden, Deputy Chief Commissioner M. Falardeau-Ramsay and J. Hucker, Goldberg brought the applicant's initial World Wide Web Internet page "Voice of Freedom" to the attention of the Commission. He wrote:"Hate on the Internet
As you are aware, there has been considerable discussion recently about the use of the Internet for the propagation of hatred. I thought you would be might be (sic) interested in seeing an example of the type of information that is now easily accessible. The attached material comes from the Voice of Freedom, a World Wide Web 'home page' operated by [Ernst Zündel]...As you will see, the information presented is classic Holocaust denial material. I understand the several other WWW sites of a similar ilk are now in operation."
Kulaszka Affidavit, para. 23 (p. 22), Exhibit W (p. 279)
41. There is no evidence Goldberg attempted in any way to verify the truth or falsity of the matters written on the Website.
42. Speaking notes of two speeches given in November of 1995 and March of 1996 by Michelle Falardeau-Ramsay, Q.C., then Deputy Chief Commissioner of the Commission (appointed subsequently as Chief Commissioner), equated the applicant's views with hatred under the Criminal Code and expressed regret on the failure to prosecute the applicant successfully under the false news law. She equated "Holocaust denial" with "racism" and "hate" and discussed the difficulties of dealing with the applicant who was able, she said, to switch Internet access providers quickly, and operated outside of Canada. She praised Ken McVay of Nizkor whom she described as someone who had discredited "Holocaust deniers" on the Internet by posting material which refuted "racist and anti-Semitic positions." The speeches were entitled "Combatting Hate Propaganda" and "Hate Propaganda: A Human Rights Perspective." Excerpts of her speaking notes are the following:
From the speech "Combatting Hate Propaganda":"The goal of eliminating racism and hate propaganda is an admirable one, and one which the Canadian Human Rights Commission shares...To some extent I believe Canada has made progress in this regard, there are probably fewer incidents of overt racism today than there were 30 or 40 years ago...But that provides little comfort for those who are targets of the overt acts of racism which still persist, whether we are talking about hate literature, Holocaust denial, or hate-motivated acts of violence. (p. 1)
Section 319(2) of the Code also makes it an offence to wilfully promote hatred against an identifiable group...Unfortunately, both these provisions of the Criminal Code have been difficult to enforce, and convictions have been few and far between...And we are all well aware of the failure to convict Ernst Zundel under the rarely-used Criminal Code provision regarding the 'spreading of false news.'... (p. 2)
Another approach to Internet hate is that taken by Ken McVay, a Vancouver human rights activist who has virtually made a career out of discrediting Holocaust deniers. While Mr. McVay opposes legislation regulating the Internet, he 'polices' the Internet himself by positing material which refutes racist and anti-Semitic positions. He tracks down hate message wherever and whenever they occur, and posts background information on the originator of the message, so that other users know that their discussion group has been infiltrated by a hard-core racist." (p. 5)
From the speech "Hate Propaganda: A Human Rights Perspective":"Secondly, the Internet is particularly popular with young people, and hate groups are specifically targetting youth as a potential source of recruits. And from a technological perspective, Internet hate poses different problems than hate on the telephone, since the originators of Internet messages are more difficult to trace and often operate outside Canada. For example, when Ernst Zündel's Internet access provider cancelled his account because of the content of his messages, he quickly set up an account with another company. And we are already seeing the emergence of offshore Internet access providers who set up shop to help pornographers and hatemongers users get around laws in the U.S., Canada and Europe; one such company has surfaced on the Caribbean Island of Anguilla. (pp. 10-11)
Another approach to Internet hate is that which has been taken by Ken McVay, a Vancouver human rights activist who has virtually made a career out of discrediting Holocaust deniers. While Mr. McVay opposes legislation regulating the Internet, he 'polices' the Internet himself by posting material which refutes racist and anti-Semitic positions. He tracks down hate message wherever and when ever they occur, and posts background information on the originator of the message, so that other users know that their discussion group has been infiltrated by a hard-core racist." (pp. 13-14)
Kulaszka Affidavit, para. 26, 27 (p. 23, 24), Exhibit Y (p. 288), Exhibit Z (p. 295)
43. B'nai Brith publications were circulated by commission member Sigmund Reiser, a longtime member of B'nai Brith who is described in the Annual Report of the Commission as "the sole survivor of a family of twenty-one whose other members perished in the Holocaust." Reiser circulated a copy of the 1994 B'nai Brith Annual Audit of Anti-Semitic Incidents and a B'nai Brith pamphlet on a telephone hotline to report hate.Kulaszka Affidavit, para. 18, 20, 29 (p. 20, 21, 25), Exhibit Q (p.247), Exhibit AA (p. 311)
44. The Commission regularly discussed and circulated publications from B'nai Brith Canada. The Commission maintained an on-going liaison with B'nai Brith through its Ottawa-based Director of Government Relations, Rubin Friedman. Commission employee Mervin Witter was also a member of the B'nai Brith Advisory Committee on Combatting Hate Propaganda. Witter provided a B'nai Brith news release which was distributed at the commission in March of 1996. The B'nai Brith news release called for the applicant's prosecution under the hate laws of Canada.Kulaszka Affidavit, para. 20, 30 (p. 20, 25), Exhibit BB (p. 313)
45. B'nai Brith is an organization which has lobbied government officials publicly and privately for sixteen years to have the applicant charged under the criminal hate law and/ or deported from Canada. B'nai Brith never attempts to refute the views of the applicant by information, debate or discussion. It seeks instead to criminalize the applicant's views as hate. B'nai Brith's actions towards the applicant have been characterized by hostility, animosity and ill will.
46. The extent of B'nai Brith's activities against the applicant include:
(a) sponsoring a massive demonstration against the applicant in 1981 where violence was prevented only by the intervention of Toronto police;
(b) repeated public and private lobbying to have the applicant charged under Canada's hate laws starting from at least 1983 and continuing to the present time;
(c) repeated calls for the applicant's deportation;
(d) acting as intervenants in the applicant's appeal to the Supreme Court of Canada in 1991 at which time B'nai Brith argued for the constitutionality of the "false news" law under which the applicant had been convicted;
(e) forming a coalition after the applicant's acquittal by the Supreme Court of Canada in 1992 with such groups as the Toronto Mayor's Committee on Community and Race Relations, one of the complainants herein, to lobby for new charges against the applicant under the hate law;
(f) starting a nation-wide advertising and poster campaign to have the applicant charged under the hate laws immediately after the applicant's acquittal. The advertisement read:"Help Stop Zundel. Ernst Zundel is a hatemonger....The League for Human Rights of B'nai Brith Canada has fought Zundel for years. We know him. So do you. When the Supreme Court struck down the false news law, the League, which fought him in court, immediately called for hate propaganda charges against him. Now we need your help to fight Zundel...Let the Attorney General know that Canadians of all walks of life want to speak out against Zundel's hatemongering, and want to see him charged with willful promotion of hatred against any identifiable group...For the sake of the six million...We will not be silent."
(g) repeated statements that the applicant is a "hate monger" and "anti-Semite" even though the applicant has never been even charged of hate under the Criminal Code notwithstanding repeated attempts by Sabina Citron, the Mayor's Committee and B'nai Brith to have him charged;
(h) circulation of a petition to have the applicant charged with hate in 1993;
(i) repeated statements declaring that "Holocaust denial" (their term) constitutes an "illegal activity" and lobbying to have "Holocaust denial" made a criminal offence;
(j) repeated calls to have the applicant's postal privileges suspended;
(k) working closely with the Mayor's Committee on Community and Race Relations to criminalize and deport the applicant. B'nai Brith's prominent member, Marvin Kurz, serves on the Mayor's Committee on Community and Race Relations and put the matter of the complaint against the applicant on its agenda. Kurz acted as counsel for B'nai Brith before the Supreme Court of Canada in the applicant's appeal, arguing that the applicant's conviction for false news should be upheld; Kurz announced a phone-in campaign to pressure the Attorney General of Ontario in 1992 to charge the applicant with hate after the applicant was acquitted by the Supreme Court of Canada;
(l) public support by B'nai Brith of Sabina Citron and her campaign of harassment against the applicant from 1985 onward, including having its representatives appear at the court houses to give media interviews supporting the laying of charges;
(m) launching of a task-force to investigate ways of regulating the Internet so that the applicant could be forced off the Internet.Zundel Affidavit, paras. 9-45 (pp. 344-353)
47. The applicant's Internet site became a major focus of B'nai Brith in the last two years. In the 1994 Audit of Anti-Semitic Incidents it wrote:"While many countries, including the United States, have few restrictions on hate propaganda, the laws in Canada are much more stringent. Printed hate material, including Holocaust denial tracts, are usually not allowed to enter this country. However, the Internet allows information to pass freely, unexamined, into Canada. There are message groups, which anyone can access, devoted specifically to Holocaust denial and other neo-Nazi ideologies.
The anarchistic nature of the internet makes it very difficult to regulate the material posted on this worldwide latticework of more than 10 million users. There are literally millions of messages in the internet 'cyberspace,' and to monitor the net properly for hate would be a full-time job for dozens of computer experts. At this time, however, there is no coordinated strategy to limit the transmission of hate on the internet. Holocaust deniers such as Ernst Zundel and the Institute for Historical Review are already using the internet to get their message into Canada...At present there are no obstacles to hatemongers' ability to distribute their hate to thousands of Canadian homes despite legal restrictions on the distribution of hate propaganda...It is imperative that we begin to harmonize the reality of the internet with the Criminal Code of Canada, as difficult as that may be, to create a comprehensive policy whereby all hatemongering will be treated equally regardless of mode of broadcast."
Zundel Affidavit, para. 41 (p. 351), Exhibit A (p. 384-385)
48. B'nai Brith has applied for interested party status before the Human Rights Tribunal appointed to hear the complaints against the applicant through its lawyer, Marvin Kurz, who is a member of the Mayor's Committee, one of the complainants in the case. B'nai Brith's grounds for applying for interested party status was that it "has a genuine, substantial and direct interest" in the case. In the supporting Memorandum of Argument submitted by Kurz, it stated:"As the representative of its numerous Jewish members, the League is also has (sic) a particular interest in the contents of the internet website of the respondent. The League has monitored this website, which contains numerous postings, which deny the existence of the Holocaust and cast aspersions on the Jewish people. The League says that they are discriminatory practices which infringe s. 13(1) of the Canadian Human Rights Act. The League has an interest in an order requiring the respondent to cease and desist from this practice." (p. 392)
Zundel Affidavit, para. 44 (p. 352), Exhibit A (p. 388-396)
49. B'nai Brith also acted as an intervener in the case of Canada (Canadian Human Rights Commission ) v. Taylor, [1990] 3 SCR 892 in which the Supreme Court of Canada upheld the constitutionality of section 13(1) of the Canadian Human Rights Act. B'nai Brith argued on the side of upholding its constitutionality.
D. THE COMPLAINANTS -
EVIDENCE OF BAD FAITH AND VEXATIOUSNESS
50. Section 41 of the Canadian Human Rights Act provides:
41. Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
...
(d) the complaint is trivial, frivolous, vexatious or made in bad faith;
...
51. Both of the complainants against the applicant have long histories of harassment of the applicant through both public and private lobbying of government officials, Crown attorneys and Attorneys General. The complainants repeatedly and persistently complain of the applicant's views on World War II which they do not agree with and want criminalized.
(i) Sabina Citron:
52. The complainant Sabina Citron has a long record of harassing the applicant with unsubstantiated complaints to postal authorities, Crown prosecutors, and the Attorney General of Ontario. In all cases, the complaints and charges laid against the applicant by Citron were found to be without merit, based on insufficient or no evidence, or a violation of the applicant's constitutional rights.
53. Her record of unfounded accusations include:
(a) In 1981, Citron complained to Canada Post Corporation that the applicant was using the mails to distribute hate propaganda within the meaning of the Criminal Code. As a result of these complaints, the applicant's mailing rights were suspended from November 13, 1981 to November 15, 1982. They were restored by André Ouellet, Minister responsible for Canada Post Corporation, on the recommendation of a Board of Review which held after a lengthy postal hearing that the applicant's publications did not constitute hate propaganda under the Criminal Code.Kulaszka Affidavit, para. 13(a), (p. 14), Exhibit E (p. 189)
(b) In the early 1980's, Citron lobbied as spokeswoman for the Canadian Holocaust Remembrance Association to have the applicant charged under the criminal hate laws. Attorney General Roy McMurtry refused to lay charges.Kulaszka Affidavit, para. 13(b) (p. 15), Exhibit H (p. 219)
(c) In 1983, Citron privately charged the applicant with two counts of spreading false news in the publications "Did Six Million Really Die?" and "The West, War and Islam." The charges were taken over by the Crown and the applicant underwent two lengthy trials in 1985 and 1988. He was acquitted at trial in 1985 on the charge concerning "The West, War and Islam" and was acquitted on appeal to the Supreme Court of Canada in 1992 on the charge concerning "Did Six Million Really Die?" when the Supreme Court of Canada struck down the false news law as an unconstitutional violation of Charter guarantees to freedom of expression.Kulaszka Affidavit, para. 13(c) (p. 15)
(d) In 1987, Citron laid a private charge against the applicant of spreading false news on a CBC radio talk show. The charge was withdrawn by the Crown on the grounds the applicant's statements did not fall within the purview of the offence.Kulaszka Affidavit, para. 13(d) (p. 15), Exhibit E (p. 194)
(e) In 1995, Citron laid a private criminal charge against the applicant of defamatory libel of named Jewish persons. The charges were withdrawn by the Crown on the grounds there was insufficient evidence.Kulaszka Affidavit, para. 13(e) (p. 15), Exhibit E (p. 198)
(f) In 1995, Citron laid a private criminal charge against the applicant of conspiracy to incite hatred. The charges were withdrawn by the Crown on the grounds there was insufficient evidence.Kulaszka Affidavit, para. 13(e) (p. 15), Exhibit E (198)
(g) In 1996, Citron commenced an action for damages of $3.5 million for defamation against the applicant for statements published on the World Wide Web Zündelsite. The applicant counterclaimed for damages of $8.5 million for malicious prosecution. The action is active and ongoing.Kulaszka Affidavit, para. 13(f) (p. 16)
(ii) The complainant Mayor's Committee on Community and Race Relations
54. The Toronto Mayor's Committee on Community and Race Relations was established by Toronto City Council in 1981 with the mandate of intervening and mediating in situations that had the potential to cause racial or intergroup tensions or social unrest.Kulaszka Affidavit, para. 14 (p. 16)
55. From at least 1987, the Mayor's Committee lobbied to have the applicant investigated by government agencies or charged under the Criminal Code with inciting hatred. The Committee supported the League for Human Rights of B'nai Brith in a campaign to have the applicant charged with inciting hatred after his 1992 acquittal by the Supreme Court of Canada. It repeatedly lobbied the Attorney General of Ontario to charge the applicant with hate under the Criminal Code even after extensive police investigations in 1993 (after the applicant's acquittal by the Supreme Court in 1992) had determined the applicant was not distributing hate literature.Kulaszka Affidavit, para. 15 (pp. 16-20), Exhibits I-N (pp. 220-231)
56. By letter dated January 3, 1995 to the Attorney General of Ontario Marion Boyd, the Mayor's Committee, expressed its "profound dismay" that the applicant had never been charged with hate. The letter set out various ways of "dealing with" the applicant including hate charges, postal bans, denial of his citizenship application, tax audits and deportation. The letter stated:Continue . . .