Court File No. T-2765-96
IN THE FEDERAL COURT OF CANADA
THE ATTORNEY GENERAL OF CANADA
THE CANADIAN HUMAN RIGHTS COMMISSION
MEMORANDUM OF POINTS TO BE ARGUED
1. The applicant replies to the respondent's Memorandum of Fact and
Law as follows:
A. Jurisdiction of the CHRC and the Tribunal (Paras. 17-21 of the Respondent's
2. As it is not alleged that the applicant himself is speaking the
communications in issue over the telephone, he does not fall within the
first branch of s. 13 of the CHRA, that of "communicat[ing] telephonically"
a discriminatory message.
3. If the applicant falls within s. 13(1), it must be under the second
branch of the provision, namely, "to cause to be so communicated."
It is the submission of the Respondent that by telephoning Dr. Rimland,
the Webmaster of the Zündelsite, and working with her on newsletters
and exchanging ideas by fax and by telephone between Toronto and California,
the applicant uses the telecommunication facilities of Canada in a manner
that brings him within the meaning of s. 13(1) of the CHRA. It alleges
further than the Zündelsite is presently only accessible from Canadian
computers with Internet access over the same telecommunication facilities
4. Thus, the argument appears to be that the applicant uses Canadian telecommunications
facilities to speak or fax to Dr. Rimland and Canadian users use the telecommunication
facilities to access the United States Website and that these uses of the
Canadian telecommunications facilities bring the applicant within the meaning
of s. 13(1) of the CHRA.
5. This argument is invalid for two major reasons:
(i) The applicant does not control the Zündelsite and copyright
of the HTML coded site resides with Dr. Rimland:
6. The control of the information contained on the Zündelsite
resides with only one person, its creator and Webmaster, Dr. Ingrid Rimland.
Dr. Rimland has the password to the site and she alone has the password.
The applicat does not know and has never known the password to the Zündelstie.
Dr. Rimland has refused to give it to the applicant when he asked for it
in the past.
Rimland Affidavit, para. 1, 2, 4, 5 at pages 335-336
Rimland Re-examination, Respondent's Application Record, page 340
7. There is no dispute or question that the applicant and Dr. Rimland are
intellectual and moral partners who greatly admire each other's abilities
and who work closely together to defend their German heritage. Both are
ethnic Germans who feel strongly that the German ethnic group has been
many times wrongly and falsely accused of atrocities during World War II.
In this, the Zündelsite reflects their feelings, aspirations for Germans
and defence of their ethnic group. In this sense, the Zündelsite is
very much "Ernst Zündel's" Website.
Rimland Affidavit, para. 3, 8, 19, 20 at pages 335, 336, 338, 339
8. But moral and intellectual cooperation and respect does not constitute
legal ownership, consent or control.
9. The applicant does not write his publications in Toronto, enter the
HTML code, and then upload the material to a website in California which
he controls through a password. The site is created, designed, and altered
by Dr. Rimland alone and it is she alone who controls the password to the
site. If the applicant is ordered to "cease and desist", he has
no power whatsoever to order Dr. Rimland to disband the Zündelsite.
She resides in a foreign jurisdiction and it is she who controls and creates
Rimland Affidavit, paras. 1-6 at pages 335-336
10. Any order against the applicant could not be enforced against Dr. Rimland.
And the applicant has no legal control over the messages which Dr. Rimland
decides to put on the Internet.
11. The copyright of the site resides in Dr. Rimland and therefore virtual
ownership of the site.
(ii) The Zündelsite does not cause the documents to be communicated
to the receiver; it is the receiver who causes them to be communicated
12. Section 13(1) requires that the person "communicate telephonically
or to cause to be so communicated" the offensive material.
13. The complained of material in this case resides on hard disk drives
at the Webcom server in California. If no person requests the material
electronically using brower software, the documents sit passively at the
14. For the complainants to have accessed this material, they must have
taken several affirmative steps to obtain it: they must have gained access
to a computer capable of accessing the Internet, they must have searched
for the Zündelsite using search engines such as Excite! or they must
have entered the Zündelsite's address in the browser software if they
had done research to obtain it.
15. Upon reaching the Zündelsite homepage, the complainants must have
asked for the Table of Contents and painstakingly accessed each document
listed therein until they found material they found offensive.
Klatt Affidavit, para. 4, 5, 6
16. Only upon receiving an electronic request for a document from the site,
would the Zündelsite send the material to the requester, and it would
send only the document requested.
17. Technically, it is the complainants who "caused to be...communicated"
the documents from the Zündelsite which they subsequently complained
of. Without the causation of a request from Canada, the documents would
simply sit in the hard disks of the webserver in California. No matter
how much work had gone into putting this information onto those hard drives
- the telephone calls, the conversations, the working together, the entering
of code, the typing, the proofreading - no communication of the material
to anyone is made until the requester causes it to be communicated by requesting
Klatt Affidavit, para. 10, page 9
18. It is respectfully submitted that the applicant does not fall within
section 13(1) of the CHRA under either branch on the basis suggested by
B. Proper Interpretation of s. 13(1) of the CHRA (paras. 22-26 of
the Respondent's Memorandum)
19. The respondent alleges that the applicant's interpretation
of "telephone" or "telephonic" in s. 13(1) of the CHRA
is "sterile and wholly inappropriate for the interpretation of the
20. It is respectfully submitted that the word "telephone" has
a clear and precise technical meaning which has been accepted for decades
by the courts. The meaning of words cannot be changed simply because they
appear in human rights statutes.
Gould v. Yukon Order of Pioneers,  1 S.C.R. 571
21. It is respectfully submitted that the word "telephonically"
was specifically inserted into the legislation to limit the provision very
narrowly to voice communications over the telephone. The drafters of the
legislation wanted to ensure that other communications that used the telecommunication
facilities of Canada would not be caught by the section.
22. This can be seen from the fact that the word "telephonically"
is not necessary to the section: it would read with equal sense if the
word did not appear. Reading section 13(1) of the CHRA without the word
would simply make the provision extend to all telecommunications undertakings
within the legislative authority of Parliament. This would extend the section
to cable TV and telegrams among other things. The Telecommunications Act
, 1993, defines "telecommunications" in s. 2(1) as:
"telecommunications" means the emission, transmission or
reception of intelligence by any wire, cable, radio, optical or other electromagnetic
system, or by any similar technical system"
23. There is no doubt that without the word "telephonically",
section 13(1) of the CHRA would apply to the Internet.
24. The section was meant to target only taped telephone messages such
as those put out by the Western Guard Party in Toronto in the 1970s and
indeed, the first case under the section was that of John Ross Taylor who
was then leader of the Western Guard.
Taylor v. Canada (Human Rights Commission),  S.C.R. 892.
25. The word "telephonically" was inserted to limit the section's
scope. Telegraphic communications, for instance, are excluded from the
ambit of the provision because of the use of the word "telephonically"
even though telegraphic communications also use the same wires. Section
36 of the Interpretation Act provides:
"36. The expression 'telegraph' and its derivatives, in an enactment
or in an Act of the legislature of any province enacted before that province
became part of Canada on any subject that is within the legislative powers
of Parliament, are deemed not to include the word 'telephone' or its derivatives."
Interpretation Act, R.S.C. 1985, c. I-21, s. 36
26. The Internet is much closer to the definition of a telegraphic communication
since it is coded digitally and does not reproduce the vibrations of sound
as in telephonic communications.
27. To further narrow the ambit of s. 13(1), the drafters of the legislation
inserted section 13(2) of the CHRA which exempted any matter "that
is communicated in whole or in part by means of the facilities of a broadcasting
undertaking." This excluded radio, TV and cable systems transmitting
programs to the public.
28. The communications complained of in this case are not telephonic communications
notwithstanding that telephone lines are used as carriers for the communications.
There can be no dispute that the communications from a Website are electronic
digital communications. The difference between telephonic and digital has
been consistently maintained by the courts and by such administrative bodies
as the Tariff Board. In the General Datacomm case, the Board held:
"[Modems, data couplers and multiplexers] 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
General Datacomm Ltd. et al. v. Canada (Minister of National Revenue for
Customs and Excise) (1984), 7 C.E.R. 1 (T.B.) at page 2.
IBM Canada Limited v. The Deputy Minister of National Revenue for Customs
and Excise et al.,  1 F.C. 663 at page 683.
29. Under section 13(1) it is the communication itself - i.e. - the words
or symbols understood by the receiver - that must be "telephonic".
The section provides:
"It is a discriminatory practice for a person or a group of persons
acting in concert to communicate telephonically or to cause to be
30. The word "telephonically" describes the word "communicate".
31. The word "communicate" is defined in Funk & Wagnalls
Standard College Dictionary as:
"To convey knowledge of; tell, as one's thoughts. To transmit
or exchange thought or knowledge"
32. A telephonic message is one where sound is transmitted long distances
by means of electricity and the message is understood by the receiver in
that form, i.e. - he understands the sounds he hears as the words which
are alleged to be a hate message.
33. A digital communication between two computers, as happens on the Internet,
appears in an understandable form to a human being on the computer screen
and may consist of video clips, text, sound, animation, or graphics. The
information may be stored, printed, copied or retransferred electronically
to other users of the Internet via e-mail, news groups and so on.
34. Law will become meaningless and completely arbitrary and therefore
tyrannical if words do not maintain their well-defined meaning. Meanings
cannot change because the respondent wishes to extend the jurisdiction
of the Canadian Human Rights Commission to digital communications without
benefit of new legislation, public debate and input and a democratic vote
C. Bias by the Canadian Human Rights Commission
35. The respondent states that there is no evidence of any predisposition
or prejudgment by the particular CHRC staff who dealt with the two complaints.
36. It is respectfully submitted that the bias of the Commission is two-fold:
(1) There is a systemic and all-pervasive bias against the German ethnic
group and a similar bias in favour of the Jewish ethnic group; (2) This
systemic bias has led to a prejudgment of the applicant, a German-Canadian,
without any investigation of the truth of his publications on World War
37. The issue of the truth or falsity of many of the allegations of World
War II atrocities by Germans against Jews has been a highly public and
emotional one for two decades. The applicant underwent two highly publicized
trials for publishing false news on this issue in a pamphlet entitled "Did
Six Million Really Die?" before he was finally acquitted by the Supreme
Court of Canada in 1992.
R. v. Zündel,  S.C.R. 731
38. Many subsequent investigations by the Ontario Provincial Police Hate
Crimes Unit and the Ontario Ministry of the Attorney General of the applicant
for publishing hate literature have been made on the complaint of the Jewish
groups, B'nai Brith, the Canadian Holocaust Remembrance Association, the
Canadian Jewish Congress and the Toronto Mayor's Committee on Community
and Race Relations. These complaints have all been dismissed on the grounds
that the applicant's publications on the history of German-Jewish issues
during World War II do not constitute hate.
Kulaszka Affidavit, paras. 13, 14, 15, 16, at pages 14-20
Zündel Affidavit, paras. 6, 7, 11-40 at pages 343, 344-351
39. The evidence in this case is overwhelming of the following:
(a) given the heavy publicity given this issue and the mandate of the CHRC
to promote the human rights of all Canadians, the CHRC nevertheless never
met or consulted with German-Canadian groups to obtain the point of view
of ordinary German-Canadians; no evidence exists whatsoever that the CHRC
ever even put its mind to a regular consultation with the German-Canadian
(b) in sharp contrast, the evidence is overwhelming that the CHRC has had
a long-standing, regular, direct and close liaison with Jewish groups such
as B'nai Brith, one of the Jewish groups which has made it one of their
foremost activities to criminalize the applicant and his views as what
B'nai Brith terms "Holocaust Denial" and to paint any German
who attempts to defend his ethnic group as a "Nazi", "hatemonger",
"bigot", "racist" and so on in most inflammatory terms
and in terms which have done nothing but harm to ethnic relations in Canada.
The fact that the Commission consults with this lobby group while excluding
consultation with any German groups shows a shameful discrimination and
bigotry by the Commission against the German ethnic group in Canada and
a betrayal of its mandate to protect the human rights of all Canadians.
(c) the evidence is overwhelming that the CHRC, in its mandate, made no
investigation whatsoever of the truth or falsity of the writings of the
applicant or the general viewpoint he espouses. Atrocity allegations against
Germans bring the German community into disrepute and contempt by other
members of Canadian society. If some of these horrible allegations are
untrue or have been exaggerated, then exposing the untruth to public view
is extremely important to German-Canadians because it reduces the hostility
and antagonism against them in society. The CHRC should have been at the
forefront of making sure that both German and Jewish ethnic groups in Canada
were free to discuss these issues fairly and openly to reduce ethnic tension.
(d) instead, the Policy and Planning Directorate of the CHRC simply classified
the applicant's writings as "hate" and "anti-Semitism."
The internal memos of Harvey Goldberg, policy and planning director, were
unchallenged by anyone in higher authority. No one instructed Mr. Goldberg
to consult with German-Canadians, investigate the truth or falsity of the
writings, or determine the findings of the OPP regarding the applicant.
Given the fact that the applicant has never been charged with hate crimes
notwithstanding complaints, and that various Ontario Attorneys General
have consistently refused to lay charges since the early 1980s, it was
incumbent that this factor be investigated and given consideration by the
CHRC before it condemned his writings out of hand as "hate."
It is clear that the CHRC from top to bottom was so systemically biased
against Germans, that they saw virtually nothing wrong with Goldberg's
memos or his failure to make any consultations or investigations as noted