Zundelsite - CHRC-Application for Judicial Review

CHRC-Application for Judicial Review - Part 4 of 4

89. Commission member Michelle Falardeau-Ramsay (now head of the Commission) directly referred to the applicant in two speeches in the fall of 1995 and the spring of 1996 as a person using the Internet to spread hate. She expressed regret that he had not been found guilty under the false news law. She used the term "Holocaust denial" calling it racism and hatred. These speeches were made before the two complaints were laid against the applicant in August and September of 1996.

90. Commission member Sigmund Reiser is a longtime member of B'nai Brith. Mr. Reiser distributed B'nai Brith material at the Commission, including its 1994 Audit of Anti-Semitic Incidents which referred to the applicant as a racist, a "Holocaust denier" spreading hate on the Internet and a person spreading anti-Semitism. B'nai Brith has applied for interested party status in the complaint proceedings, pleading it has a "direct" interest in the proceedings and has a particular interst in the applicant as it has "monitored" the Zundelsite and fought for many years to protect its members from the hate propaganda of "Holocaust denial." Commission member Sigmund Reiser's association with this organization and his obvious support of its goals regarding hate propaganda raise a reasonable apprehension of bias against the applicant. When the Mayor's Committee informed Chief Commissioner Yalden that it was laying a formal complaint against the applicant, the letter was copied to Reiser, the only commissioner to be copied. It was B'nai Brith counsel Marvin Kurz, a member of the Mayor's Committee, who put a complaint against the applicant on its agenda.

91. The research done by the Commission through its Policy and Planning Branch, headed by its director Harvey Goldberg, shows it adopted the position, identical to that of B'nai Brith, that the applicant was a "Holocaust denier" and "hatemonger." The documents show no like consultation by the Policy Branch with the German community or any investigation into the historical accuracy or truth of the applicant's writings. There was no honest, objective appraisal of the applicant's writings or other documents on the Zundelsite, and a complete disregard of the applicant's legal history which shows he has been consistently cleared of distributing hate literature notwithstanding incessant political pressure by groups such as B'nai Brith and Sabina Citron. The Commission's research was directed only as to how it might control the content of the chaotic Internet.

92. The Commission is a public institution of the Canadian government which is there to protect all Canadians from discriminatory actions. There were two sides in World War II and one of those sides was German. The German ethnic minority in Canada, including the applicant, is entitled to dispute accusations made against Germans without harassment by the Commission which is abusing its power. The Commission's actions against the German minority in Canada is a blot on the human rights record of Canada.

93. The Commission is unlawfully disregarding the Canadian Multiculturalism Act by which it is bound. All ethnic groups in Canada are equal. In matters of history, all are entitled to defend their ethnic groups from stereotyping, misinformation, falsehoods and slander. Truth in history is essential and truth can only be determined through free expression.

94. It will be argued that the matters set out above raise a reasonable apprehension of bias by the Commission against the applicant. The Commission owed a duty of fairness to the applicant, to consider all relevant evidence without bias or prejudgment. The evidence shows the Commission failed in this duty.

D. Canadian Charter of Rights and Freedoms

95. The constitutionality of section 13(1) of the Act only arises if the applicant's application for judicial review fails on all other grounds.

96. The constitutionality of section 13(1) of the Act was upheld by the Supreme Court of Canada in the case of Canada (Canadian Human Rights Commission ) v. Taylor, [1990] 3 SCR 892. The court held that section 13(1) infringed the guarantee to freedom of expression contained in section 2(b) of the Canadian Charter of Rights and Freedoms. However, it held that the infringement was a reasonable limit within the meaning of section 1 of the Charter in the context of a telephone answering machine.

97. In its analysis under section 1 in the John Ross Taylor case, the Supreme Court took into account the nature of the medium, the telephone, targetted by section 13 of the Act. It agreed with the comments of the Human Rights Tribunal which had heard the Taylor case when it stated:

"The combination of the telephonic medium and the material is, we believe, particularly insidious, because, while a public means of communication is used, it is one which gives the listener the impression of direct, personal, almost private, contact by the speaker, provides no realistic means of questioning the information or views presented and is subject to no counter-argument within that particular communications context."

98. The legislative history of section 13 makes it clear that the provision was meant to target a very specific activity, that of a telephone message service whereby any member of the public could dial a telephone number and listen to a pre-recorded message which played repeatedly. The legislation was enacted specifically to target John Ross Taylor and the Western Guard Party and the taped telephone messages they made available in Toronto.

Commons Debates, February 11, 1977, page 2976
Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, May 18 and 19, 1977.

99. The complaints in the within case do not arise in the context of a telephone answering machine where a tape plays a pre-recorded message over and over if a caller dials that number. In this case, the information complained about is situated on the Internet, a new, unique, participatory and revolutionary medium which raises completely new and different considerations as to whether the violation of s. 2(b) rights to freedom of expression by section 13(1) are still justified under section 1 of the Charter.

100. The Internet is not a telephone, but an electronic network of computers offering users virtually unlimited access to different points of view. The Zundelsite itself is linked to Nizkor, a huge World Wide Web site, which disputes the point of view offered on the Zundelsite. It is linked to the Simon Wiesenthal Centre Website for instant access by readers to an alternative point of view. From each of these websites, the reader may link to other sites which support the presently-accepted record of the German people during World War II.

101. Researchers and readers e-mail the Zundelsite and correspond with Dr. Rimland to gain further information, express disagreement with or praise for the site.

102. The Commission itself recognizes the flexibility of the Internet as a store of knowledge and has used the word "interactive." In a memo from Chief of External Relations Donna Balkan to Max Yalden, Chief Commissioner, in January of 1995, Baldan ackowledged:

"At the same time, we all acknowledge, at least privately, that this is a more difficult issue to deal with than telephone hate messages. The Internet is totally unstructured: it is essentially a network of networks with nobody 'in charge'. Messages come in from all over the world, people often use aliases and are difficult to trace and so on...Moreover, there is resistance among both access providers and many Internet users to any attempt to 'censor' or 'control' the Internet...Because the Internet is an interactive medium, in which users can - and do - respond to each other's comments with counter-comments, the feeling is that it is effectively self-policing and does not require any kind of regulation."

Kulaszka Affidavit, Exhibit R (p. 248)

103. A telephone call is usually between two people; it can at most include several people in a conference call situation. The Internet, however, has been described as a "never-ending worldwide conversation" with virtually millions of people over the globe. The Reno case cited by the respondent, held:

"...the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."

American Civil Liberties Union et al. v. Reno, 929 F. Supp. 824.

104. The medium of the telephone is the context in which section 13 of the Act was upheld. Those circumstances no longer apply in the case at bar in the completely different context of the Internet.

E. Complaints Vexatious and made in Bad Faith

105. It will be argued that the Commission abused its discretion by failing to dismiss the complaints under section 41(d) of the Act on the grounds that they were vexatious and made in bad faith.

106. Section of the Canadian Human Rights Act provides as follows:

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;
...

107. The bringing of numerous charges and actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding. Vexatious proceedings include those brought for an improper purpose, including harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights. It is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented.

Re Lang Michener et al. and Fabian et al. (1987), 37 D.L.R. (4th) 685 (Ont. H.C.)
Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220

108. It will be argued that the complaints by Sabina Citron and the Mayor's Committee on Community and Race Relations are vexatious and made in bad faith for an improper purpose, namely, the harassment and oppression of the applicant and not the assertion of legitimate rights.

109. The evidence shows that the complainant Sabina Citron has persistently waged a campaign of legal harassment against the applicant based repeatedly on the same grounds and issues, namely, the applicant's views on the history of World War II.

110. These same opinions of the applicant have formed the basis for each of the complainant Citron's repeated attempts to have the applicant charged criminally with hate, conspiracy to incite hate, false news, and defamatory libel. They form the basis of her current action against the applicant for defamation based on the same Zündelsite contents.

111. In the postal hearing, the Board of Review held that the applicant's writings did not constitute hatred. The charges of false news on a radio broadcast, of defamatory libel and conspiracy to incite hatred were withdrawn by the Crown on the basis that no evidence had been tendered sufficient to warrant the charges. The applicant was acquitted on the charge of false news regarding "The West, War and Islam" by jury trial in 1985. The applicant was acquitted on the charge of false news regarding "Did Six Million Really Die?" in 1992 when the Supreme Court of Canada struck down the section as a violation of Charter rights to freedom of expression. The findings of the Supreme Court were summarized in the case headnote as follows:

Section 2(b) of the Charter protects the right of a minority to express its view, however unpopular it may be. All communications which convey or attempt to convey meaning are protected by s. 2(b), unless the physical form by which the communication is made (for example, a violent act) excludes protection. The content of the communication is irrelevant. The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfillment. That purpose extents to the protection of minority beliefs which the majority regards as wrong or false. Section 181, which may subject a person to criminal conviction and potential imprisonment because of words he published, has undeniably the effect of restricting freedom of expression and, therefore, imposes a limit on s. 2(b).

112. In 1992, immediately after his acquittal, the Canadian Jewish Congress attempted to have the applicant charged with hate for his views. After a six month investigation, the OPP Hate Unit in consultation with experts from the Ministry of the Attorney General refused to lay charges. This decision was widely publicized and both Citron and the Mayor's Committee were well aware of it.

Kulaszka Affidavit, Exhibit E (pp. 181, 212)

113. "Good faith" involves "honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry." (Black's Law Dictionary, Revised Fourth Edition, 1968)

114. The complainant Citron knows of all of the facts set out above. Her wilful disregard of these facts and her contempt for the findings of the judicial and justice system in Canada which have consistently held that the applicant's views do not constitute hate indicate her complaint is made in bad faith and for a vexatious purpose.

115. The Mayor's Committee on Community and Race Relations has never attempted to mediate between the applicant and the Jewish community notwithstanding the applicant's request to speak to the committee and notwithstanding its mandate was to act as a mediator. By failing to do so, and by lobbying repeatedly and persistently to have the applicant charged, deported and audited, to have his postal rights suspended and his citizenship application denied, the complainant Mayor's Committee has failed to fulfill its mandate of intervening and mediating in situations that have the potential to cause intergroup tensions. It has shown bad faith in its dealings with the applicant by failing to hear him and joining in a campaign orchestrated by B'nai Brith to have the applicant criminalized and deported. The Mayor's Committee is fully aware that the applicant's views are not hate.

116. These two complaints raise the serious issue of how the hate laws of Canada can be used as a tool of continual harassment and intimidation by persons of bad faith who have no respect for the competing right of freedom of thought, expression and debate. The opinions of the applicant have been proven since 1980 to be lawful in Canada to the knowledge of both complainants who nevertheless continue to search for new judicial and quasi-judicial forums to harass the applicant. The commission erred by failing to dismiss the complaints as vexatious and made in bad faith.

PART III
ORDER SOUGHT

117. The applicant respectfully requests an order of this Court:

(a) an order in the nature of certiorari with prohibition in aid quashing the decision of the Canadian Human Rights Commission to request the appointment of a Human Rights Tribunal under the Canadian Human Rights Act, 1976-77, c. 33, s. 1 to inquire into two complaints laid against the applicant by Sabina Citron and the Mayor's Committee on Community and Race Relations;

(b) relief under section 24(1) of the Canadian Charter of Rights and Freedoms in the nature of certiorari with prohibition in aid;

(c) a declaration pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms that the actions of the Canadian Human Rights Commission is in contravention of section 2(b) of the Charter and not a limit prescribed by law under section 1 of the Charter and permanently enjoining any further proceeding upon the complaints referred to above;

(d) a declaration that section 13(1) of the Canadian Human Rights Act is ultra vires the Parliament of Canada pursuant to section 52 of the Constitution Act, 1982 for breach of section 2(b) of the Charter if section 13(1) applies in these circumstances, contrary to the above;

(e) such further and other relief as this Honourable Court may deem just.

All of which is respectfully submitted.

__________________________________
Douglas H. Christie,
Barrister & Solicitor,
810 Courtney St.,
Victoria, B.C.
V8W 1C4

Phone: (250) 385-1022
Fax: (250) 479-3294

Counsel for the Applicant

LIST OF CASES

American Civil Liberties Union et al. v. Reno, 929 F. Supp. 824.
Attorney General v. The Edison Telephone Company of London (1880), 6 Q.B. 244 (Ex.D.)
Canada (Canadian Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892
Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369
Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220
General Datacom Ltd. v. Deputy Minister of National Revenue for Customs and Excise (1984), 7 C.E.R. 1 (T.B.)
IBM Canada Ltd. v. Canada (National Revenue), [1992] 1 F.C. 663 (C.A.)
MacBain v. Canadian Human Rights Commission et al. (1985), 22 D.L.R. (4th) 119 (Fed. C.A.)
Nevco Scoreboard Co. v. Deputy Minister of National Revenue (Customs and Excise) (1986), 12 C.E.R. 88 (T.B.)
Nfld. Telephone Co. v. Board of Commissioners of Public Utilities (1992), 89 D.L.R. (4th) 289 (S.C.C.)
R. v. Gignac, [1934] O.R. 195 (H.C.)
Re Lang Michener et al. and Fabian et al. (1987), 37 D.L.R. (4th) 685 (Ont. H.C.)
Syndicat des employes de production du Quebec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879
Szilard v. Szasz, [1955] S.C.R. 3
The King v. Brislan; Ex parte Williams, [1935] 54 C.L.R. 262 (H.C.)
"The Telephone Cases" (1887), 126 U.S. 1
Valente v. The Queen, [1985] 2 S.C.R. 673.
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.