CZundelsite - HRC-Application for Judicial Review

CHRC-Application for Judicial Review - Part 3 of 4

"As you certainly know, Ernst Zündel is one of the world's leading manufacturers and exporters of hate propaganda....We believe that there are a variety of methods of dealing with Mr. Zündel's hate propaganda. The first manner of dealing with him would be a criminal investigation and charge under s. 319(2) of the Criminal Code....There are other legal avenues available to provincial law enforcement officials for dealing with Mr. Zündel. Included in those remedies would be a review of the corporate income tax returns of his company, Samizdat Publishing. Are they paying provincial income tax for all of their sales, both in Ontario and abroad? The provincial sales tax officials could look at the issue of whether sales tax in (sic) being charged on Samizdat materials being sold in Ontario and abroad as well...Section 43 of the Postal Act allows the postal minister the right to make a prohibitory order when there are reasonable grounds to believe that an individual is using the mails to commit an offence or to aid or abet in the commission of an offence. That provision could be used to deny the postal privileges of Samizdat or Mr. Zündel...Have you or any members of your cabinet contacted Mr. Marchi, the Minister of Citizenship and Immigration with respect to his citizenship application? If Mr. Zündel is granted Citizenship, Canada will lose the right to deport him...Deportation may be the most expedient method of ridding Canada of Mr. Zündel's noxious influence."

Kulaszka Affidavit, para. 15 (g), (p. 18), Exhibit E (p. 204)

57. Notwithstanding its mandate to intervene and mediate between groups regarding issues having the potential to cause intergroup tensions, the Mayor's Committee has never approached the applicant nor allowed the applicant to make submissions to it. The applicant asked to be heard by the Mayor's Committee regarding its lobbying efforts to have him charged, investigated, audited and deported. Mayor Barbara Hall, chair of the committee, wrote to the applicant informing him that if the committee decided to hear oral submissions in the future it would so inform him. The applicant formally requested a hearing but never received a reply.

Kulaszka Affidavit, para. 15(h) (p. 19), Exhibit O (p. 236)

58. The complaint against the applicant filed by the Mayor's Committee was initiated by Marvin Kurz, the counsel for the League for Human Rights of B'nai Brith and chair of its legal committee, who is a sitting member of the Mayor's Committee. Kurz asked in March of 1996 to put on the agenda of the Mayor's Committee the matter of a formal complaint to the Commission regarding the applicant's "discriminatory acts of posting Holocaust denial hate propaganda on the Internet." Kurz also represents B'nai Brith as its counsel in an application for interested party status in the hearing in this proceeding against the applicant before the Human Rights Tribunal.

Kulaszka Affidavit , para. 15(i) (p. 19), Exhibit E (p. 210)

59. By letter dated May 16, 1996 to Chief Commissioner Max Yalden, the Mayor's Committee informed the Commission that it had decided to lay a formal complaint against the applicant. The letter was copied to Commission member Sigmund Reiser, who is a member of B'nai Brith and regularly circulated its publications with the Commission, and Mervin Witter.

Kulaszka Affidavit, para. 15(j) (p. 20), Exhibit E (p. 209)

II
POINTS TO BE ARGUED

A. Jurisdiction of the Canadian Human Rights Commission over an Internet Website Located in the United States of America

60. It will be argued that the Commission has no jurisdiction over an Internet Website located in a foreign jurisdiction. By claiming jurisdiction over a Website located in California, the Commission in effect is claiming jurisdiction over every Internet site located anywhere on the globe. This is an absurdity in law and in fact.

61. Section 13(1) requires that the communications are communicated or caused to be communicated "by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament." In this case, the site is not using any facilities within Canadian jurisdiction. It is using the telecommunications facilities of the United States. This may be seen simply by asking whether the Canadian Parliament has legislative authority under the Telecommunications Act, S.C. 1993, c. 38 over telecommunications carriers in California. It clearly does not. The Canadian Human Rights Commission cannot extend its jurisdiction farther than that of the Telecommunications Act. No telecommunications carrier in Canada could be liable for the content of the Zundelsite if the exception in subsection 13(3) of the Act did not exist.

62. The Zundelsite does not use the telecommunication facilities of Canada. The site is located completely within the jurisdiction of the United States and its contents are legal under the law of the United States. No Canadian could access this site save and except for the creation of it in another nation beyond the jurisdiction of Parliament. The site is not within the control of the applicant but an American citizen, Ingrid Rimland, who has sole control over the password to the site and is its creator and webmaster.

B. Jurisdiction of the Canadian Human Rights Commission over the Internet - Meaning of "telephonically" in Section 13(1) of the Act

63. It will be argued that section 13 applies only to telephonic communications and not to computer-mediated communications used by the Internet. The word telephonic was deliberately used to restrict the section to telephonic communications and to exclude other forms of telecommunications.

64. Section 13(1)and (2) of the Canadian Human Rights Act provides:

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."

65. Section 13 clearly requires that the communication be made "telephonically" as the section states the person must communicate "telephonically or to cause to be so communicated.."

66. It will be argued that the transmission of electronic computer-mediated Internet communications such as those complained of do not fall within the meaning of the word "telephonically." On the face of the record the matters complained of are all electronic text documents consisting of computer digital images.

67. "Telephone" is defined in the Shorter Oxford English Dictionary, 3rd ed., as follows:

"an instrument, apparatus or device for conveying sound to a distance; An apparatus for reproducing sound, esp. that of the voice, at a great distance, by means of electricity; consisting, like the electric telegraph, of transmitting and receiving instruments connected by a line or wire which conveys the electric current."

"to convey sound to a distance by or as by a telephone; especially to send a message or communicate by speaking through a telephone."

68. "Telephonic" is defined in the same dictionary to mean:

"Transmitting, or relating to the transmission of, sound to a distance;"

69. "Sound" is defined in the Funk & Wagnalls Standard College Dictionary as:

"1. Any of a class of waves consisting of mechanical disturbances, as varying pressure or alternating movement, in an elastic system, especially in air. 2. The auditory stimulation produced by waves of this type having frequencies between about 20 and 20,000 cycles per second; 3. An instance of this stimulation: the sound of a car; a shrill sound."

70. The patent for the telephone held by Alexander Graham Bell was described in "The Telephone Cases" (1887), 126 U.S. 1 at page 2 as:

"the art or process of transferring to, or impressing upon, a continuous current of electricity in a closed circuit, by gradually changing its intensity, the vibrations of air produced by the human voice in articulate speech, in a way to cause the speech to be carried to and received by a listener at a distance on the line of the current."

71. Alexander Graham Bell described the process in an affidavit filed in the "Telephone Cases" as a method of, and apparatus for, transmitting vocal or other sounds telegraphically by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds.

"The Telephone Cases" (1887), 126 U.S. 1 at page 13-14

72. In contrast, the word "telecommunications" has a much broader meaning as it is defined in the Interpretation Act, R.S.C. 1985, I-21, section 35 as follows:

"telecommunications" means the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system.

73. In the Telecommunications Act, 1993, c. 38, s. 2, "telecommunications" and the word "intelligence" are defined as follows:

"telecommunications" mans the emission, transmission or reception of intelligence by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system.

"intelligence" means signs, signals, writing, images, sounds or intelligence of any nature.

74. The Federal Court of Canada has held that "telephone" relates only to the transmission of sounds and voices and does not extend to electronic devices such as modems used in conjunction with computer systems as in the case at bar.

IBM Canada Ltd. v. Canada (National Revenue), [1992] 1 F.C. 663 (C.A.)
citing the cases of:
R. v. Gignac, [1934] O.R. 195 (H.C.)
Attorney General v. The Edison Telephone Company of London (1880), 6 Q.B. 244 (Ex.D.)
The King v. Brislan; Ex parte Williams, [1935] 54 C.L.R. 262 (H.C.)

75. In IBM Canada Ltd. v. Canada (Deputy Minister of National Revenue, Customs and Excise - MNR), [1992] 1 F.C. 663, the Federal Court of Appeal held:

"...in concluding that 'components' of the 'telephone system' are 'telephone apparatus' even when these components transmit data in addition to voices, the majority of the Board ignored the case law [see The King v. Brislan; Ex parte Williams, [1935]54 C.L.R. 262 at 270 (H.C. of Australia), Latham C.J.; Rex v. Gignac, [1934] O.R. 195 at 204 (H.C.) Armour J.; The Attorney General v. The Edison Telephone Company of London (1880), 6 Q.B. 244 at 245 (Ex.D.), Stephen J.], and the definition in ordinary and technical dictionaries of the word 'telephone' which unanimously relate 'telephone' to transmission of sounds or voices only."

76. The Court further held that the case law recognized a clear distinction between "electronic" and "electric" goods in that modems, data sets, data couplers and multiplexers are peripherals for "electronic data processing apparatus" rather than "electric telephone apparatus." Computer communications use telephone lines but this does not make the communications "telephonic."

"This evidence further indicates that as the transfer or communication need emerged, it was met in most instances by use of the facilities of the common commercial carriers, the telephone companies. This use was a consequence of convenience and availability and nothing more. The goods in issue were developed to provide a translation of the digital output of the computer data systems to analogue forms the only form that the voice band facilities of the telephone companies could accept. They were developed and are used to enable computers and computer systems to utilize the information carrying capacity of the telephone systems. They cannot and are not used to facilitate or improve the basic voice transmission function of the telephone systems." (emphasis added)

General Datacom Ltd. v. Deputy Minister of National Revenue for Customs and Excise (1984), 7 C.E.R. 1 (T.B.) at page 3

77. A "telephone" is a uni-functional device for the transmission of sounds or voices only. It has no application to data processing computerized networks such as the Internet.

Waltham Watch Co. of Canada v. Deputy Minister of National Revenue (Customs and Excise) (1987), 15 C.E.R. 159 (Fed. C.A.) affirming (1984), 8 C.E.R. 133.

Nevco Scoreboard Co. v. Deputy Minister of National Revenue (Customs and Excise) (1986), 12 C.E.R. 88 (T.B.)

78. The Internet is not a telephonic device but a network of computer networks exchanging digital information. Internet communications are coded digital transmissions. No transmission of sound is involved.

Klatt Affidavit, para. 5 (p. 7)

79. That section 13 applied only to messages on a telephone was recognized by the Supreme Court of Canada in the decision of Canada (Canadian Human Rights Commission) v. Taylor, [1990] 3 SCR 892 where Dickson J. held:

"To begin with, it is self-evident that this activity conveys or attempts to convey a meaning, the medium in issue to my mind being susceptible to no other use. Indeed, I find it impossible to conceive of an instance where the "telephonic communication of matter" to paraphrase the language of s. 13(1)) could not be said to involve a conveyance of meaning....it is clear that Parliament's aim in passing s. 13(1) is to constrain expression communicated by telephone, for the section operates to prohibit directly messages likely to expose certain persons or groups of persons to hatred or contempt. "

C. Reasonable Apprehension of Bias of the Canadian Human Rights Commission Against the Applicant

80. It will be argued that the internal documents of the Canadian Human Rights Commission on "hate on the Internet" raise a reasonable apprehension of bias on the part of the Commission against the applicant.

81. The Canadian Human Rights Commission, in making its decision to send the two complaints against the applicant to a Human Rights Tribunal, owed the applicant a duty of fairness. All administrative bodies, no matter what their function, owe a duty of fairness to the regulated parties whose interest they must determine.

Nfld. Telephone Co. v. Board of Commissioners of Public Utilities (1992), 89 D.L.R. (4th) 289 (S.C.C.) at p. 297
Syndicat des employes de production du Quebec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879

82. The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. The test for reasonable apprehension of bias is "whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator."

Nfld. Telephone Co. v. Board of Commissioners of Public Utilities (1992), 89 D.L.R. (4th) 289 (S.C.C.) at p. 297
Valente v. The Queen, [1985] 2 S.C.R. 673.

83. "Each party, acting reasonably, is entitled to a sustained confidence in the independence of mind of those who are to sit in judgment on him and his affairs."

Szilard v. Szasz, [1955] S.C.R. 3, per Rand J.
MacBain v. Canadian Human Rights Commission et al. (1985), 22 D.L.R. (4th) 119 (Fed. C.A.)

84. The courts have found that where an administrative tribunal is charged with the duty to consider the public interest public confidence in the impartiality of the tribunal is required to further the public interest.

Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, per Laskin J.

85. This is even more so in the case of a Commission mandated in the area of human rights . The Commission is not there to enforce the historical views of only one of Canada's ethnic groups, but to respect the views and rights of all of Canada's many diverse groups. Oftentimes, these historical views will be bitterly adverse as ethnic groups who believe they have been wronged by another try to give their side of the story.

86. The Commission is bound by the Canadian Multiculturalism Act which provides that:

"Section 3 (2): It is further declared to be the policy of the Government of Canada that all federal institutions shall...(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."

87. The evidence presented in the Kulaszka Affidavit of internal memos and notes of the Commission are clear evidence that the Commission and its staff classified the applicant's writings as "Holocaust Denial" which it automatically equated to "hate propaganda" , "anti-Semitism", "racism" and "bigotry" prior to any complaints even being laid against the applicant and without any investigation into the truth or falseness of these opinions or the feelings of the German ethnic minority.

88. The evidence further shows bias by the Commission in the formulation of its policy on the human rights issue of the right of German Canadians to dispute presently accepted accounts of the history of World War II. B'nai Brith, an organization virulently opposed to the applicant and seeking persistently to criminalize him, was consulted on a regular basis by the Commission, and its publications circulated regularly, but no like consultation with German Canadians was ever undertaken. Nor was the applicant ever interviewed or consulted before the Commission's policy on what it termed "Holocaust denial" was fashioned. At no time did the Commission contemplate the applicant's views in a neutral, objective way. The Commission's obvious close relationship with B'nai Brith with no corresponding dialogue with German Canadians raises a reasonable apprehension of bias against the applicant given the wholesale adoption by the Commission of B'nai Brith's position and even its terminology, such as "Holocaust denial."

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