Zundelsite - CHRC - Memorandum of Points to be Argued

CHRC - Memorandum of Points to be Argued - Part 2 of 2

(e) the CHRC adopted wholesale the terminology of B'nai Brith in dealing with the issue of the history of World War II and the atrocity allegations made against the German ethnic group. The applicant's writings were specifically termed "Holocaust denial" which was equated with "anti-Semitic" and "hate." This is the exact terminology that B'nai Brith has used for years against the applicant in efforts to criminalize him. A comparison between an advertisement run by B'nai Brith titled "Help Stop Zündel" and the wording of a Goldberg memorandum of November 30, 1994 shows how closely the CHRC adopted B'nai Brith's position:

[-]'s 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, Exhibit P (Goldberg memo), page. 241

"Holocaust denial is but the latest in a series of deliberate lies which display Jews as master conspirators who pretend to be 'victims'. These lies incite anti-Semitism. They are a warrant for genocide."

Kulaszka Affidavit, Exhibit DD (B'nai Brith ad "Help Stop Zündel), page 333

(f) Commission member Sigmund Reiser is a member of B'nai Brith and regularly circulated copies of its publications at the Commission in which the applicant is discussed as a "hatemonger." The evidence of B'nai Brith's long-held hostility towards the applicant and its attempts to criminalize him and the opinions complained of herein are beyond dispute. Further, in its application for full party status before the Human Rights Tribunal appointed to hear these complaints against the applicant, B'nai Brith has indicated in sworn affidavits by its executive that it has "a particular interest in upholding the jurisdiction of Canadian Human Rights Act to regulate hate on internet websites that are available in Canada...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 has an interest in an order requiring the respondent to cease and desist from this practice." B'nai Brith's application was recently granted by the Tribunal. Commissioner Reiser's long association with B'nai Brith and obvious support of its activities raises a reasonable apprehension of bias given B'nai Brith's sworn admission that it has a special interest in the case against the applicant under the CHRA and its long history of hostility towards the applicant.

Zündel Affidavit, para. 44 (page 352-353), Exhibit A (page 388-396)

(g) Then Deputy Chief Commissioner Michelle Falardeau-Ramsay deplored the fact in public speeches that the applicant's false news conviction had not been upheld. She referred to him as a "Holocaust denier" which she equated with "hate" and "racism" and "anti-Semitism" and made these statements in connection with the topic "Hate on the Internet." She praised Nizkor, a Website which specifically opposes the applicant, for fighting "Internet hate" by discrediting "Holocaust deniers." These remarks were made in public speeches entitled "Combatting Hate Propaganda" and ""Hate Propaganda: A Human Rights Perspective" which Falardeau-Ramsay gave in her capacity as then Deputy Chief Commissioner of the CHRC. Therefore, the remarks represent the position of the CHRC itself. There is no evidence that the Commission distanced itself from her remarks later either in internal memos or publicly. This evidence shows a reasonable apprehension of bias on the part of the CHRC against the applicant, and further, it is submitted, a prejudgment of the very issues it was later called upon to decide regarding the applicant.

Kulaszka Affidavit, Exhibit Y (page 288, 289, 290, 293);
Exhibit Z (page 295 at pages 305, 306, 308, 309)
Rimland Affidavit, paras. 11-15 (pages 337-338)

40. It is respectfully submitted that the evidence of systemic bias against the German community of which the applicant is a part and specific reasonable apprehension of bias, if not prejudgment, against the applicant is overwhelming.

D. Constitutional Issues

41. If this court holds that section 13(1) of the CHRA applies to the Internet, then the issue arises of whether the section still falls within the justifiable limits of a free and democratic society.

42. The respondent submits that the issue of the constitutionality of section 13(1) of the CHRA was disposed of in the Taylor case.

43. The Supreme Court of Canada held in Taylor that section 13(1) violated s. 2(b) of the Canadian Charter of Rights and Freedoms. It was upheld under section 1, however, as a justifiable limit in a free and democratic society in the context of a taped message on a telephone playing repeatedly to a caller.

44. The issue today is whether this violation of freedom of expression is justified in the context of a completely revolutionary medium, the Internet.

45. This perspective shows how important it is that the word "telephonically" be given its ordinary meaning and the section restricted to that meaning. When the Supreme Court of Canada upheld section 13(1) in 1990, it is clear they did so while assuming that the section applied only to telephone calls. It is submitted that the Supreme Court could not and did not foresee the section applying to something as different technologically or socially as the Internet.

46. However, if the court finds that the word "telephonically" extends beyond voice communications (which will include many other communications, not only digital), then the issue of whether s. 1 is still applicable must arise. The evidence of how the Internet works and the vast resources contained in it are set out in the case of ACLU et al. v. Reno, 929 F.Supp. 824 contained in Exhibit A to the affidavit of Margo Langford filed by the respondent. The findings of fact in the Reno case were undisputed and were adopted by the Supreme Court of the United States in a decision handed down on June 26, 1997 which upheld the lower-court decision. The Court stated with respect to the Internet that:

"The Internet is 'a unique and wholly new medium of worldwide human communication."

47. The Court observed that "each medium of expression...may present its own problems" in determining the level of protection for free speech to be accorded to it. It noted that the regulation of broadcast media was justified given the scarcity of available frequencies at its inception, and its invasive nature. It held, however, that those factors were not present in cyberspace:

"...the Internet is not as 'invasive' as radio or television. The District Court specifically found that 'communications over the Internet do not 'invade' an individual's home or appear on one's computer screen unbidden. Users seldom encounter content 'by accident.' [...]

"Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a 'scarce' expressive commodity. It provides relatively unlimited, low cost capacity for communication of all kinds. The Government estimates that '[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999.' This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, 'the content on the Internet is as diverse as human thought.' 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium."

48. The parties herein have essentially agreed on the facts concerning the Internet as both have adopted the statement of facts set out in the Reno case as set out in the Langford Affidavit. These facts are undisputed and constitute the factual basis for arguing the constitutional issue.

49. Each medium brings different considerations to an analysis of section 1 of the Charter when a violation of the guarantee to freedom of expression has been proven. In this case, the Supreme Court held s. 13(1) violated section 2(b) of the Charter. In the new medium of the Internet, the applicant should be allowed to argue that the violation is no longer a justifiable one in a free and democratic society.

E. Prematurity

50. The respondent argues that the remedies claimed by the applicant are made prematurely.

51. In this case, the applicant alleges that the communication complained of is not "telephonic" and therefore does not fall within the scope of s. 13(1) of the CHRA. This is a matter of statutory interpretation and is therefore a question of law. The facts are not in dispute but merely the interpretation to be placed on the word "telephonic." Where an issue of law respecting the scope of the operation of the enabling statute has been raised, which does not involve choosing between the conflicting testimony of witnesses, the applicant is not compelled to await the decision of the Tribunal on that issue before seeking to have it determined in a court of law by an application for judicial review, and the Court has jurisdiction to deal with the matter.

Bell v. Ontario (Human Rights Commission), [1971] S.C.R. 756

52. The Supreme Court of Canada has held that Human Rights Tribunals appointed under the CHRA are not protected by a privative clause, and their position is not analogous to a labour board (and similarly highly specialized bodies) to which the courts will give a considerable measure of deference on questions of law falling within their area of expertise. The Court has held that the superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context but does not extend to general questions of law which are matters within the province of the judiciary and involve concepts of statutory interpretation and general legal reasoning.

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554

53. In the case at bar, the applicant has challenged the constitutionality of s. 13(1) under section 2(b) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has discussed the efficacy of human rights tribunals addressing constitutional issues in the following terms:

"I would add a practical note of caution with respect to a tribunal's jurisdiction to consider Charter arguments. First, as already noted, a tribunal does not have any special expertise except in the area of factual determination in the human rights context. Second, any efficiencies that are prima facie gained by avoiding the court system will be lost when the inevitable judicial review proceeding is brought in the Federal Court. Third, the unfettered ability of a tribunal to accept any evidence it sees fit is well suited to a human rights complaint determination but is inappropriate when addressing the constitutionality of a legislative provision. Finally, and perhaps most decisively, the added complexity, cost, and time that would be involved when a tribunal is to hear a constitutional question would erode to a large degree the primary goal sought in creating the tribunals, i.e., the efficient and timely adjudication of human rights complaints."
Bell v. Canada (Canadian Human Rights Commission); Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854

54. The cases cited by the respondent in support of its arguments of prematurity are cases where the applicants were attempting to seek, in effect, a determination of the complaint on its merits, or which involved conflicting evidence regarding key matters. These circumstances do not apply in the case at bar. The issues raised are questions of law and of the constitutionality of s. 13(1) in the context of a new medium. It is far more efficient to hear these matters in a judicial review application having regard to the statements of the Supreme Court of Canada cited above.

55. The Supreme Court has recognized even in criminal proceedings that a dual proceedings approach may be taken in that one may challenge the constitutionality of a statute even if there was no conviction before the court to appeal.

R. v. Keegstra, [1995] 2 S.C.R. 381

56. It is respectfully submitted that the ancient extraordinary remedies of certiorari and prohibition exist to prevent inferior tribunals such as the CHRC from unlawfully taking jurisdiction where it has none. If the CHRC has acted beyond its jurisdiction under section 13(1) of the Act or if the section is unconstitutional under the Canadian Charter of Rights and Freedoms, the applicant must be entitled to request a superior court to halt the proceedings. The same consideration applies when an administrative tribunal fails to adhere to the requirements of procedural fairness including the duty to act impartially.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Dated this 14th day of July, 1997 at Victoria, British Columbia.

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Douglas H. Christie
Counsel for the Applicant