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
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,  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
"...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
(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.
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.,
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.
Canada (Canadian Human Rights Commission) v. Taylor,  3 S.C.R. 892
Committee for Justice and Liberty v. National Energy Board,  1 S.C.R.
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),  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,  O.R. 195 (H.C.)
Re Lang Michener et al. and Fabian et al. (1987), 37 D.L.R. (4th) 685 (Ont.
Syndicat des employes de production du Quebec et de l'Acadie v. Canada
(Canadian Human Rights Commission),  2 S.C.R. 879
Szilard v. Szasz,  S.C.R. 3
The King v. Brislan; Ex parte Williams,  54 C.L.R. 262 (H.C.)
"The Telephone Cases" (1887), 126 U.S. 1
Valente v. The Queen,  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.