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Canadian Human Rights Tribunal Judgment. 20061201
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
RICHARD WARMAN
Complainant
– and –
CANADIAN HUMAN RIGHTS COMMISSION
Commission
– and –
WESTERN CANADA FOR US
and GLENn BAHR
Respondents
REASONS FOR DECISION
MEMBER: Julie C. Lloyd
2006 CHRT 52
06/12/01
I. THE COMPLAINTS 1
II. WHAT CIRCUMSTANCES GAVE RISE TO THE COMPLAINTS? 1
III. WHAT QUESTIONS NEED TO BE ADDRESSED IN THIS CASE? 2
A. What is the material that is alleged to violate s. 13 of the CHRA? 3
(i) The literature available for download from the website 4
a) The International Jew 4
b) White Power 5
c) The Turner Diaries 6
(ii) Postings made to the discussion forum on the website 6
a) The Treaty Song Posting 6
b) Homosexual posting #1 7
c) The Application post 7
d) Homosexual posting #2 9
B. Was the impugned material communicated in whole or in part by means of a
telecommunications undertaking within the authority of Parliament? 9
C. Was the impugned material communicated repeatedly? 9
D. Was this material likely to expose a person or persons to hatred or contempt
by reason of the fact that such person or persons are identifiable on the basis of
a prohibited ground of discrimination? 10
E. Did the Respondent, Glenn Bahr, communicate, or cause to be communicated, the
impugned messages from the above noted sources by means of the Internet? 14
(i) Was the respondent, Glenn Bahr, the person posting messages on the WCFU
website under the pseudonyms “SS-88” and “Glenn”? 15
(ii) Did Glenn Bahr have control over the WCFU website? 18
(iii) Did Glenn Bahr communicate, or cause to be communicated, the material
available for download on the WCFU website? 21
(iv) Did Glenn Bahr communicate the impugned postings as alleged? 21
F. Did the Respondent, WCFU communicate, or cause to be communicated, the
impugned material? 23
(i) Preliminary Issue: Is the Respondent, WCFU, a “group of persons” for the
purpose of s. 13(1)? 23
(ii) Did WCFU communicate the impugned material? 25
IV. REMEDIES 27
A. An order that the discriminatory practice cease (s. 54(1)(a)) 27
B. Penalty 27
I. THE COMPLAINTS
[1] The complainant, Richard Warman, has filed a complaint alleging that in
2004, Glenn Bahr and Western Canada For Us (“WCFU”), communicated messages over
the Internet that would likely expose Jews, First Nation Canadians, gays,
lesbians, bisexuals, blacks, other non-whites and the mentally disabled to
hatred and/or contempt within the meaning of section 13(1) of the Canadian
Human Rights Act (CHRA).
[2] The Canadian Human Rights Commission fully participated at the hearing
into the complaint and was represented by legal counsel. Mr. Warman and Mr.
Bahr attended at the hearing and neither were represented by legal counsel,
though it is noted that Mr. Warman is himself a lawyer. Mr. Bahr was
represented by Mr. Paul Fromm. Mr. Fromm is not a lawyer. Mr. Bahr did not give
evidence at the hearing.
[3] The respondent, WCFU, did not appear at the hearing and was not
represented by counsel. In an earlier written submission, Mr. Fromm alleged on
behalf of WCFU that it was not a proper party to this complaint as it was
neither a person nor a corporation. While this respondent did not appear at the
hearing, I will deal with the substance of its position in these reasons.
II. WHAT CIRCUMSTANCES GAVE RISE TO THE COMPLAINTS?
[4] Mr. Warman alleged that in the early months of 2004 he became aware of
a group called Western Canada For Us (WCFU). In March of 2004 WCFU established
a webpage on the Internet. The complainant viewed the content of this website
and believed that some of the content violated s. 13 of the CHRA. Mr. Warman
alleged that he was able to determine that the Respondent, Glenn Bahr, was the
leader of WCFU, and that this respondent was instrumental in first the creation
and later the control of the website. Mr. Warman filed the present complaint in
June of 2004.
III. WHAT QUESTIONS NEED TO BE ADDRESSED IN THIS CASE?
[5] The following questions must be addressed in considering this
complaint:
A. What is the material that is alleged to violate s. 13 of the CHRA?
a) The material available for download from the website:
(i) The International Jew
(ii) White Power
(iii) The Turner Diaries
b) Postings made to the discussion forum on the website
(i) The Treaty Song posting
(ii) The Homosexual posting #1
(iii) The Application posting
(iv) The Homosexual posting #2
B. Was the impugned material communicated in whole or in part by means of a
telecommunications undertaking within the authority of Parliament?
C. Was the material communicated repeatedly?
D. Was this material likely to expose a person or persons to hatred or
contempt by reason that such person or persons are identifiable on the basis of
a prohibited ground of discrimination?
E. Did the Respondent, Glenn Bahr, communicate or cause to be communicated
the impugned material?
a) Was the person employing the monikers “SS-88” and “Glenn” on the WCFU
website Glenn Bahr?
b) Did Glenn Bahr control the WCFU website?
c) Did Glenn Bahr communicate, or cause to be communicated, the literature
available for download on the website?
d) Did Glenn Bahr communicate the two posts made by “SS-88” on the WCFU
website?
F. Did the Respondent, WCFU, communicate, or cause to be communicated, the
impugned material?
a) Preliminary issue: Is WCFU a proper party to this complaint?
b) Did WCFU communicate, or cause to be communicated, the literature
available for download on the site?
c) Did WCFU communicate, or cause to be communicated, the postings made on
the discussion forum?
[6] I find, for the reasons set out herein, that the material in question
is of a quality that falls within the ambit of s. 13(1) of the CHRA. I find
further that both Glenn Bahr and WCFU communicated the material or caused the
material to be communicated as contemplated in that section. I find that the
complaint is substantiated against both of the respondents.
A. What is the material that is alleged to violate s. 13 of the CHRA?
[7] Two “snapshots” of the WCFU website were introduced into evidence. The
snapshots were copies of the entire website that had been downloaded onto
computer discs. One snapshot was taken on March 31, 2004 and the other on May
7, 2004. The discs containing these snapshots were entered into evidence at the
hearing. Most of the material alleged to fall within s. 13 of the CHRA was
contained in these snapshots.
[8] The homepage of the WCFU website contains a number of links that assist
a viewer in navigating a site. When a link is selected by the viewer, he or she
is quickly moved to the corresponding section of the website. Much of the
impugned material was located in the “Downloads” section of the website.
(i) The literature availa computer. The complainant alleges that the
following literature contained in this section of the website fell within the
ambit of s. 13 of the CHRA.
a) The International Jew
[10] The International Jew is a book written by Henry Ford and first
pubearly 1920s. The thesis of this book is that Jewish people across the world
are actively engaged in a global conspiracy to obtain control of the world’s
finances and the world’s governments. The Jews are described in this book as
being well on their way to global domination, controlling many industries in
the United States and elsewhere, as well as controlling many of the world’s
governments, the entertainment industry and much of the world’s news media.
[11] This book describes how, by manipulating the industries they control,
Jews create disruption aimed at weakening and ultimately destroying non-Jewish
civilization, described as Christendom. Financial control is exercised to cause
economic strife. The author states: “the amount of our National debtnment and
other media is used to entice Christendom to debauchery and excess, thereby
weakening its social and moral fabric.
[12] According to the book’s author, one of the strategies employed by the
Jews to achieve their goal of world domination was to encourage the immigration
of non-white persons into Christian society, and at the same time to promote
the values of tolerance and liberalism. The Jews, the book states, use their
control over the media to confuse citizens by extolling what the author
describes as `the poison of liberalism.’ Members of Christian society are
tricked into embracing tolerance and liberal values and are made to feel guilt
over racist thoughts or opinions. In the result these non-white immigrants,
depicted as an inherently destructive force in Christian society, become
empowered and entrenched.
[13] Jewish people are described as unscrupulous, deceptive, dishonest and
immoral. The author urges that Jews have engineered most of the world’s ills,
revel in them and rely on them as essential steps in their thirst for world
domination. The solution to the “Jewish problem” is to eliminate Jews from
Christian society.
b) White Power
[14] White Power was written by George Lincoln Rockwell, the then leader of
the American Nazi Party, and published in the mid-1960s. The thesis of this
book is summarized in the following excerpt (page 88):
“There you have the Jewish-Communist program in a nut shell – the USE of
the backward, childish and savage Negro race to destroy the White Race, which
stands between the Jews and their mad goal of domination from Israel. The Jews,
comprising only a fraction of one percent of the world’s people, are too few to
produce their own mobs, and they are too un-fond of physical violence to
provide any amount of their own `muscle.’ They need vast numbers of
peanut-brained, violent but robot-like “troops.” The Negro race is perfect for
the needs of the Jews in fomenting their mutiny. But before the blacks can do
the Jews and the Marxists any goodhite champion of civilization by sheer
numbers.”
c) The Turner Diaries
[16] The Turner Diaries is a book written by William Luther Pierce, the
leader of the National Alliance, a White Supremacist group with origins in the
United States of America.k, a work of fiction, presents the story of a white
revolutionary named Earl Turner and his organization of white people, that
wages a violent racial revolution in the United States in violent opposition to
the Jews, and to what is described as the “equalperpetrated by the Jews. The
struggle escalates to a global genocide, and leads to the extermination of all
Jews, all non-whites and those whites who associate or sympathize with Jews or
non-whites. The violence depicted in this work is horrific. Jews, des Satan’s
spawn, are shot, stabbed, burned alive and hanged singly and in groups, as are
other non-whites and “race criminals” – those who support or associate with
non-white persons or groups.
(ii) Postings made to the discussion forum on the website The WCFU website
contained a discussion forum that allowed individuals to post material on the
site. The forum was organized into different topic “threads,” and people were
invited to contribute comment or material to the threads. The complainant,
Richar, testified that while one had to be a registered member to contribute,
membership could be obtained quickly and easily on the website by providing
minimal information. The postings to the forums contained numerous
typographical errors. What follows are vtim transcriptions of the impugned
postings with no editing for spelling or grammar.
[18] The Complainant identified two postings alleged to come within s. 13
and alleged to have been made by the Respondent, Glenn Bahr.
a) The Treaty Song Posting
[19] On March 18, 2004, “SS-88”, a pseudonym the complainant and the
Commission allege to have been used by the respondent, Glenn Bahr, made a
posting to the WCFU site titled “The Treaty Song.” This posting was not
contained in either of the two “snapshots” of the website filed in evidence.
This Tribunal heard evidence that the posting was discovered on the WCFU
website on or about March 18, 2004, and downloaded. The posting, a copy of
which was filed as an exhibit in the hearing, read in part as follo[20] On
March 10, 2004, “SS-88” made a posting to a discussion thread on the WCFU
website titled, “Homosexuals.” This posting was included in one of the two
snapshots of the website filed as evidence in the hearing and read in part as
follows:
“I believe no matter how or why you are a homosexual your life should be
terminated. . . They should be terminated along with retards and any other
degenerates that nature would do away with in the wild. What gives us the right
to prolong a life that would have been terminated by nature.”
c) The Application post
[21] The complainant alleges that certain postings alleged to have been
made by persons other than the respondent, Glenn Bahr to the WCFU discussion
forum also fall within s. 13. The first was posted by a person using the
pseudonym, “TowerDB.” This posting was not included in either of the webpage
“snapshots.” The Tribunal heard evidence that the posting was discovered on the
WCFU website on or about March 18, 2004 and downloaded. A copy of the p hearing
and reads in part as follows:
APPLICATION TO BE A INDIAN
Department of Indain & Unimportant Affairs
. . .
Address (if living in automobile, give make, model and licence number)
Name of Mudder Name of Fudder
Automobile (Cheyou can opperate __ Crowbar __ Pinball __ Knife __ Bingo
Dabber __ Match __ TV Remote __ Slot Machine __ Other
Check Illnesses you had the last year __ Vanilla Poisoning __ Alcohol
Poisoning __Lung Burns (due to gasoline inhalation) __ Other
Numbe of Children __ 1st Wife __ 2nd Wife __ 3rd Wife __ Neighbor’s Wife
__ Shackups
. . .
Have you ever been arrested? __ Yes __ No If No, Explain.
How many refrigerators and junk cars are in your front yard: ____________
Other than livingfor free and drinking all the taxpayers money away, what
is your greatest goal in life besides nothing?
d) Homosexual posting #2
[22] A second posting was made by a person using the pseudonym
“WhiteEuroCanadian.” This person contributed a posting o the discussion forum
thread titled “Homosexuals” on March 9, 2004. The posting was included in the
website “snapshot” and read in part as follows:
“These are not human beings, they are sexual perverts in the same category
as pedophiles, beastiality,S&M etc. Why in the world of descent morals must the
majority of the population be subjected to sexual divients like homosexuals? It
is a SEX thing. Why give them special status that normal Canadians enjoy? . .
.”
B. Was the impugned material communicated in whole or in part by means of a
telecommunications undertaking within the authority of Parliament?
[23] S. 13 of the CHRA was amended in 2001 by the addition of s. 13(2),
which reads as follows:
F or greater certainty, subsection (1) applies in respect of a matter that
is communicated by means of a computer or a group of interconnected computers,
including the Internet, or any similar means of communication . . .
[24] The amendment clarifies that section 13(1) applies to matters
communicated by means of the Internet. I find that the impugned material
communicated was communicated for the purposes of s. 13.
C. Was the impugned material communicated repeatedly?
[25] The CHRA requires in s. 13(1) that material be communicated “repether,
the material was available to the complainant and any person who accessed the
website from their computer by means of the Internet. The website was not a
private communication, but was intended for wider, public circulation. I find
that the material on the website was communicated repeatedly.
D. Was this material likely to expose a person or persons to hatred or
contempt by reason of the fact that such person or persons are identifiable on
the basis of a prohibited ground of discrimination?
[27] This Tribunal and the courts have canvassed thoroughly the proper
interpretation of the words “likely”, “expose”, “hatred” and “contempt.”
[28] S. 13(1) provides that to fall within the ambit of s. 13(1), material
must be “likely” to expose a person to hatred or contempt. This means it is not
necessary for a complainant to lead evidence that a person was actually moved
to hatred or contempt by the communication of the material (Schnell, (supra) at
para. 88, and see Nealy v. Johnston (supra), at para. 45657).
[29] The word “expose” has also been considered by this Tribunal. In Nealy
the Tribunal contrasted this word with the words of “incite” and “promote,”
that are used in various sections of the Criminal Code (Nealy, supra, at para.
45657). “Expose,” the Tribunal found, is a more passive word than is “incite”
or “provoke” and means leaving one unprotected, or to lay one open to danger,
ridicule, or censure. “Incite,” on the other hand, has a more active
connotation and means to stir up, while within the compass of s. 13(1).”
(Canadian Human Rights Commission v. Western Guard Party and John Ross Taylor,
(July 20, 1979) (Can. Trib.; Leddy, Lederman and Volpini) [unreported], at page
29).
[30] This Tribunal and the courts have also considered the proper
interpretation of the words “hatred” and “contempt.” In a decision considering
the constitutionality of s. 13(1), the Supreme Court of Canada observed a
tension fundamental to the interpretation of the section. While human rights
statutes, becuse of their nature as fundamental law, are to be accorded a
generous and purposive interpretation, that purposive interpretation cannot
extend so far as to permit the limitation of the freedom of expression
guaranteed under s. 2(b), unless the limitationcan be justified under s. 1 of
the Charter (Taylor (Canada (Human Rights Commission) v. Taylor [1990], 3
S.C.R. 892, at para. 59).
[31] In upholding the constitutionality of the section, Dickson J. found
that the objective of s. 13(1) of the CHRA is tnsmission of material by
telephone. A more recent decision of this Tribunal found s. 13(1) to be a
reasonable limit on the freedom of expression in respect of material
communicated by means of the Internet. This decision relies heavily on Taylor,
and repeats the definitions of “hatred” and “contempt”. (Citron v. Zundel,
[2002], T.D. 1/02.)
[32] Dickson J. describes the profound harm visited on targets of messages
of hatred. Referencing numerous studies on the effects of hate messages,
Justice Dickson xplains that hate propaganda can “undermine the dignity and
self-worth of target group members, and more generally contribute to
disharmonious relations among various racial, cultural and religious groups, as
a result eroding the tolerance and open-mindedess that must flourish in a
multicultural society which is committed to the idea of equality.” (Taylor,
supra, at para. 41) The purpose of s. 13(1) is to prevent this harm.
[33] The Supreme Court in Taylor adopts the interpretation of the words
“hatre” and “contempt” that was provided by this Tribunal in Nealy v. Johnston
(1989), 10 C.H.R.R. D/6450. The core meaning of “hatred” is described by that
Tribunal as a set of emotions and feelings which involve “extreme ill will
toward another person or group of persons,” an emotion that would admit no
redeeming qualities for the individual or group. The core meaning of “contempt”
is a set of emotions similarly extreme and which involve “feelings of
superiority over the individual or group,” or that of feeli
[36] The International Jew posits a theory that the Jews are the engineers
of the woes of the (non-Jewish) world and have a covert plan of global
domination. Jews as a group are described as unscrupulous, deceptive, dishonest
and immoral. The book adwill and vilification. Indeed, the words deny the very
humanity of these persons (i.e. “robot-like”). The book also expresses extreme
ill will against Jewish people, who are described as intent on destroying the
white race.
[38] The book, The Turner Diaries, describes in lurid fictional detail, the
global genocide of Jews, other non-Whites, and those who would associate with
them. This genocide is undertaken because of the “equality hoax” perpetrated by
the Jews and designed, as described in the International Jew and White Power,
to destroy the white race. While a fictional account, a reader cannot help but
conclude that this book advocates for the genocide of these people on the basis
of their membership in groups protected under the CHRA. The book constitutes a
profound denial of the humanity of Jews and others. It expresses extreme ill
will and denies any redeeming human quality to members of these groups.
[39] I find that these three books made available for download on the WCFU
website meet the test in Nealy. Each of them is likely to expose a person or
persons to hatred or contempt by reason of the fact of their membership in a
group protected under s. 2 of the CHRA.
[40] The posting, “The Treaty Song” suggests that aboriginal, or First Na.
It goes further to suggest that these people do not work, are alcoholics, are
on welfare, gamble excessively, destroy their own property, are sexually
promiscuous and irresponsible. I find this posting is a sweeping and gross
caricature of aboriginal Cahe posting made by “WhiteEuroCanadian” to the
discussion thread titled, “Homosexuals” denies that homosexuals are human
beings. Such a denial, a rejection of the very humanity of persons belonging to
this minority group, is an expression of “extreme ill will,” and is hatred and
contempt for the purpose of s. 13(1).
[44] The Respondent, Glenn Bahr, argued that the material identified in the
complaint is a form of legitimate political expression and does not violate s.
13(1). I would paraphrase the observations of this Tribunal in Nealy and reply
that the line between legitimate expression and illegitimate expression arises
from the manner in which any political discourse is pursued. Whether or not
material might be connected to a political or other opinion, and whether or not
the material might arise from a deeply held belief of the communicator, the
material will violate s. 13(1) where it exposes others to hatred or contempt on
the basis of their membership in a group protected under the CHRA, and I
fmmunicated the literature contained in the Downloads part of the website and
that he communicated the postings made by “SS-88”. It is alleged that Glenn
Bahr, used the pseudonyms of “SS-88” and “Glenn” on the WCFU website and
further that he contributed t that the person using the website user names or
pseudonyms of “SS-88” and “Glenn” on the WCFU website was the respondent, Glenn
Bahr. I find for the following reasons that the person communicating the
material under the pseudonyms “SS-88” and “Glenn” was the respondent, Glenn
Bahr.
[47] Sergeant Steven Camp, of the Edmonton Police Service Hate Crimes Unit,
testified at the hearing as a witness for the Commission. The Sergeant
testified that he had conducted an investigation of the WCFU and Glenn
Bahrovision prohibiting the wilful promotion of hatred. At the time of the
hearing of this complaint, there had not yet been a trial commenced in relation
to the Criminal Code charge.
[48] Sergeant Camp testified that as part of his work in the Hate
Crimeitored by the Sergeant, were sites that in his opinion contained neo-Nazi
and white nationalist content. The Sergeant testified that he monitored these
sites looking for evidence of activity in Edmonton that might be of interest to
the Unit. One such site is an American based website called stormfront.org. The
Sergeant testified that this website has discussion forums designated for
different countries, including Canada.
[49] Sergeant Camp testified that he noticed, in the Canada forum, a series
of diuary of 2004, “SS-88” posted on stormfront.org, notice of a meeting of the
WCFU that had been planned for Red Deer, Alberta. In that post, “SS-88″ advised
that he had asked the Red Deer RCMP detachment to attend at the event to help
keep the peace as there was a concern that members of the Anti-Racist Action
Group (ARA) might attend the meeting and cause a disturbance. Sergeant Camp
later confirmed with the Red Deer detachment that its officers had a discussion
about this WCFU meeting in February of 2004 amp contacted the complainant,
Richard Warman, and asked whether he could obtain a copy of this poster and the
attached photograph. The Sergeant received copies from Mr. Warman, which copies
were entered as evidence during the hearing. The poster had a ve”Tattoos:” “I
have an SS on my right pec, Blizkrieg across the top of my back. I have an iron
cross with skull on my right arm and an eagle with a Maple Leaf in its wing on
my left arm.”
[54] On May 7, 2004, Sergeant Camp executed a search warrant at the
respondent, Mr. Bahr’s home in relation to the Criminal Code charge laid
against Mr. Bahr and described earlier. The Sergeant testified that while
executing the search warrant, he asked Mr. Bahr to describe his tattoos. Mr.
Bahr described that he had an SS symbol on his chest, the word “Blizkrieg”
across his back, an eagle with a Canadian Flag and a skull with flames.
[55] The Sergeant testified that during the execution of this search
warrant, Mr. Bahr admitted that he was in charge of the WCFU website and
undertook to shut the website down. The next day, being May 8, 2004, “SS-88”
posted to stormfront.org: “There will be no meet. WCFU is now disbanded.” Later
that same day “SS-88” posted to stormfront.org: “Due to certain circumstances
WCFU as an organization and website are finished permanently.” On May 8, 2004
the WCFU website was removed from the Internet.
[56] The complainant alleges that Glenn Bahr began to use the pseudonym
“Glenn” on the WCFU in or about March of 2004. The evidence in support of this
allegation follows.
[57] In March of 2004 “SS-88” posted to stormfront.org that he will shortly
post pictures taken of a rally held in Edmonton, Alberta, in support of Ernst
Zundel on the WCFU website. Shortly thereafter, “Glenn” postedted that the
interview guest was an individual named Glenn Bahr. The interview included a
“call-in segment.” Listeners were invited to call in and ask questions or
direct comments to Mr. Bahr. One caller suggested that Mr. Bahr was at the time
using the pseudonym “SS-88” on the WCFU website. Glenn Bahr responded, “My name
is Glenn on the WCFU website.”
[59] Sergeant Camp testified that the Edmonton Police Service Technological
Crimes Section was instructed to complete a forensic analysis of Mr. Bahr’s two
computers. The Sergeant testified that he was advised that the person accessing
one of these computers as “Administrator” also accessed the web based e-mail
accounts of “SS-88″@hotmail.com and [email protected]. The person who accessed
the website a “Administrator” also accessed the administrative pages of the
WCFU website forum as “Glenn,” and accessed the stormfront.org and other
websites as users “schadenfrog” and “SS-88.” The Sergeant was further advised
that the person accessing the second compd that the person accessing the
stormfront.org website as “SS-88”, was also this respondent.
[61] The evidentiary burden lies with the complainant and the Commission to
establish their case on a balance of probabilities. Where, however, a prima
facie case has been made out in respect of an allegation, a respondent must
provide a reasonable explanation, either that the conduct alleged did not occur
or that the conduct did not constitute a discriminatory practice. (Warman v.
Kulbashian (supra) at para. 114).
[62] Mr. Bahr did not lead any evidence that would suggest that he did not
use these pseudonyms. I find that the person accessing the WCFU and
stormfront.org websites as “SS-88” was the respondent, Glenn Bahr and further
that Mr. Bahr was the person accessing the WCFU website as “Glenn.”
(ii) Did Glenn Bahr have control over the WCFU website?
[63] The complainant and the Commission allege that the respondent, Glenn
Bahr, either alone or with others, had control of the WCFU website. In
particular, they allege Glenn Bahr had control over the administration of the
website and was able to control the content of the site. The evidence led to
support this allegation is as follows.
[64] Sergeant Camp testified that he reviewed a posting on stormfront.org
dated December of 2003 made by “SS-88” which read as follows: “If you need a
website done to promote your plan, I can offer you my services free of charge.
Just e-mail me.”
[65] The Sergeant testified there was much discussion in early Mabsite is
as follows:
– On March 3, 2004, “SS-88” posted: “I made some suggested changes to the
site,” and later that day, “SS-88” posted: “Thanx man for the help with
proofreading the site. I will try and get that copy up tonight after work.
Appreciate it!”
– March 4, 2004, “SS-88” posted: “. . . I will program in the pics and add
the content,” and later that day, “SS-88” posted: “Thanx everyone but I have it
under control. These things don’t happen overnight. I’m working on the site and
it will b Mr. Bahr continued to have significant control over the website after
its launch. The evidence led to support this allegation is as follows.
[67] On the WCFU website, first “SS-88”, and later “Glenn” is identified as
the “head administrator.” Further, “SS-88”, and then “Glenn” contributed
material to the site on a regular basis. The material posted by “SS-88” and
“Glenn” included photographs of protest rallies, postings of newspaper articles
on different subjects, and postings on the discussion forum.
[68] Sergeant Camp testified that the EPS forensic analysis on the first
computer seized during the execution of the search warrant disclosed that the
person accessing the WCFU website as “Glenn” had administrative rights on the
website and so was able to add, delete and modify the content of the site and
to control its layout. This person also had administrative powers over the
discussion forum and could control the content of postings by banning the use
of certain words and could delete postings fiscussion forum where he considered
their participation to be problematic. Mr. Bahr was able to ensure that these
banned members could not gain access to the discussion forum.
[70] As mentioned earlier, Sergeant Camp testified that while he was
executing the search warrant at Glenn Bahr’s home in May of 2004, Mr. Bahr
admitted that he controlled the website. He also undertook to shut the site
down. The next day the WCFU website disappeared from the Internet.
[71] On the basis of this evidence, I find that the complainant and the
Commission have made out a prima facie case that the respondent, Glenn Bahr,
was instrumental in creating the WCFU website, and that he had control of the
website from its inception until the time the website was taken froquire
authorship, just communication of the offending material. (See Warman v. Kyburz
[2003] CHRT 18). I have found that Mr. Bahr had administrative control over the
WCFU website, and I find for that reason that he, either alone or in concert
with others, installed the material contained in the Downloads section, and
that he did accordingly communicate or cause to be communicated that material.
(iv) Did Glenn Bahr communicate the impugned postings as alleged?
[73] The Complainant alleges that the cie case has been made out that the
respondent, Glenn Bahr made the impugned postings.
[74] As mentioned earlier, the respondent, Glenn Bahr did not give evidence
at the hearing. Through his representative however, Mr. Bahr denied making the
postings, alleging that a third party gained unauthorized access to his WCFU
website pseudonym and made the impugned postings. The evidence led by this
respondent in support of this allegation is as follows.
[75] An affidavit sworn by Kent Dahl, a Constable with the RCMP detachment
in Red Deer, was filed in evidence. This affidavit states that Mr. Bahr
attended at the detachment and filed a complaint on March 19, 2004. The
Constable describes that Mr. Bahr reported receiving threatening e-mails and
telephone cfurther deposed by the Constable that Mr. Bahr advised him in April
of 2004 that he had moved to Edmonton and no longer wished to pursue the
matter.
[76] A transcript was prepared from an audio tape made of the interview
Glenn Bahr gave to Constable Dwn to him. He learned later that the e-mails were
not written by the person known to him – they had been sent by a third party
who had obtained unauthorized access to the e-mail account of his acquaintance.
Mr. Bahr advised that he suspected a member or members of either or both of the
ARA or the Communist party were involved. Mr. Bahr also reported that persons
were breaking in to his MSN instant messaging account, and that of some of his
acquaintances and were impersonating him and his friends during chalf after
being qualified as an expert on computer technology and the Internet. Mr. Klatt
testified that it is possible for persons to take control of, or `hack into’
the computer of another and described various methods that could be employed by
the unscthat would tend to demonstrate that Mr. Bahr was the victim of any
other unauthorized conduct. Mr. Klatt did not testify that an unauthorized user
was impersonating Mr. Bahr on the WCFU discussion forum.
[81] Does this evidence serve as a reasonable explanation of the evidence
of the complainant and the Commission? Member Hadjis describes in Warman v.
Kulbashian that where a prima facie case is made out, the Respondent must
provide a reasonable explanation and further that the explanation must entail
in that some person was impersonating him on the WCFU website discussion forum,
making postings that were not his composition. His complaint of mischief
regarding his computer were limited to the receipt of fake e-mails and that his
MSN instant messaging count was hacked into. Further, Mr. Klatt’s evidence was
only that it is possible for a person to gain unauthorized access to the
computer of another. He did not testify that any person did in fact gain such
access to Mr. Bahr’s computer at any time relev13(1) and is accordingly not a
proper party to this complaint. WCFU will be a “group of persons” for the
purpose of s. 13(1) if there is, on the evidence, adequate indicia that it
constitutes a group of people who have organized themselves under that namef
engaging in the discriminatory conduct alleged herein. In reaching this
conclusion one need not go much further than the following posting made to the
WCFU website in May of 2004, by “Glenn,” who I have found to be the respondent,
Glenn Bahr:
“The Alberta Chapter of WCFU is the head chapter of Western Canada For Us.
This is where all of the decisions are made. They have representatives in
Edmonton, Three Hills and Calgary. WCFU distributes most of the material and
organizes most of our protests. WCFU Alberta holds monthly meetings where we
discuss provincial and national issues and see what we can do to help out our
fellow Euro-Canadians.” The posting ends: “Glenn Bahr, Alberta Chapter and WCFU
President, [email protected]” and solicits donatimonton, AB.
[85] From this posting to the WCFU website it is clear that this group has
an organizational structure, it has Chapters, at least three representatives
and a President. The group distributes material, holds regular meetings,
organizes events, has a post office box, created a website and has articulated
a mission of helping fellow Euro-Canadians.
[86] Further, Sergeant Camp testified that in March of 2004, the Old
Strathcona Community Police Station in Edmonton, Alberta called the Hate Crimes
Unit and reported that they had received complaints that business cards had
been distributed in the community. The business card was obtained by the
Sergeant and was introduced into evidence. The card read: “Glenn Bahr, Alberta
Chapter and WCFU President, Alberta, Canada and contained two Internet
addresses: “www.wcfu.com” and “[email protected]” This latter address
also accessed the WCFU website.
[87] Sergeant Camp also testified that he was contacted by the Leduc,
Alberta RCMP detachment in early May of 2004. Officers from that detachment had
received complaints about persons distributing pamphlets in the area. The
officers forwarded the pamphlet to Sergeant Camp who introduced it as evidence
at the hearing. The pamphlet had photographs othe commencement of this
interview, Glenn Bahr is introduced by the host as the president and founder of
the Western Canada For Us group and as the head of the Alberta Chapter of the
organization. Further, on April 27, 2004, “Glenn” posted a copy of a letter to
the editor submitted to the Winnipeg Sun. The letter challenges an article
published in that newspaper describing that a Manitoba chapter of the WCFU,
described as a white supremacist group, was attempting to establish itself in
Winnipeg. The letter is signed “Glenn Bahr, President and Founder, WCFU Alberta
Chapter.”
(ii) Did WCFU communicate the impugned material?
[89] The respondent, WCFU, created and controlled a website. WCFU, by
installing the website and its content, communicated or caused to be
communicated that content, including the impugned material (see Warman v.
Kulbashian [2006] CHRT 11).
[90] In finding that WCFU communicated or caused to be communicated the
impugned material, I am mindful of s. 13(3) of the CHRA which stay persons who
merely provide facilities for others to use. Such a person would not then be
liable for the manner in which that facility was used. By installing the
discussion forum on its website, the WCFU provided a facility designed to be
used by whomever might wish to commence or contribute to a discussion. Some
persons used this facility in a manner I have found to be likely to expose
persons identifiable on the basis of a prohibited ground of discrimination to
hatred or contempt. Should WCFU be found to be responsible for the comments
posted to the discussion forum? Is s. 13(3) applicable to and does it afford a
defence to WCFU in respect of that content? I find that the section does not
apply on the facts of this case and does not afford a defence touraged the
communication of hate messages over its server. The member concluded that the
respondent’s participation with the facility was not benign in its nature and
so could not avail itself of the defence provided in s. 13(1) (Warman v.
Kulbashian [20ed to attract visitors who share the views expressed in this and
other content of the website or who might be convinced to adopt such views.
Hateful messages are a likely, if not inevitable, result of the manner in which
this website is designed. Thus WCFU’ conduct as an owner or operator of
telecommunication facilities used by others was not benign and accordingly the
defence contained in s. 13(3) has no application. I find that the WCFU
communicated or caused to be communicated the impugned postings made to the
discussion forum.
IV. REMEDIES
[94] The Commission and the complainant request that the Tribunal issue
several orders pursuant to s. 54(1) of the CHRA.
A. An order that the discriminatory practice cease (s. 54(1)(a))
[95] Section HRA, namely the Internet, any material of the type found in
this decision to be likely to expose a person or persons to hatred or contempt
by reason of the fact that the person or persons are identifiable on the basis
of a prohibited ground of discrimination.
B. Penalty
[97] The Tribunal may order a respondent who engaged in a discriminatory
practice as set out in s. 13, to pay a penalty of up to $10,000.00 pursuant to
s. 54(1)(c). The purpose of this section is not to compensate an individual com
to pay the penalty.
[98] While Mr. Bahr did not author the material found on the Downloads
section of the website, I have found that he caused this material to be
communicated. I have also found that Mr. Bahr made the “Treaty Song” posting
and the fintally disabled, blacks and other non-whites that were vicious and
extreme in their characterization. The materials communicated expressed hatred
and contempt in respect of members of these various groups and invited others
to hold these persons in hatred and contempt. Some of the material considered
in these reasons advocates for the extermination of Jewish people, homosexuals
and persons suffering mental disabilities. This weighs heavily in favour of the
assessment of a significant penalty.
[100] No evidence was led to suggest that the respondent, Mr. Bahr, had
engaged in any prior discriminatory practices. I understand that the charges
laid against Mr. Bahr under s. 319(2) of the Criminal Code arose from the same
or substantially the same material as was considered in this proceeding, and
not to prior separate discriminatory conduct.
[101] That the website was shut down by Mr. Bahr almost immediately after
Sergeant Camp executed a search warrant at his apartment is a mitigating
factor.
[102] I heard no direct evidence of the details of Mr. Bahr’s financial
circumstances. I note however, that s. 50(3) of the CHRA authorizes the
Tribunal to accept whatever evidence and other information that it sees fit,
whether or not that evidence would be adusness of the section 13 breach would
otherwise call for a fine at or near the maximum permissible under the
legislation, being $10,000.00, these factors have persuaded the Tribunal that a
somewhat reduced penalty is appropriate. I order Mr. Bahr to pay a of WCFU’s
conduct, weigh heavily in favour of the assessment of a significant penalty. As
did the respondent, Glenn Bahr, WCFU communicated repeatedly material that was
vicious and extreme.
[105] I have no evidence of any prior discriminatory practicto have been
established in or about March of 2004, shortly before the website was
established. It is the content of the website that is the subject matter of
this complaint. I find that this group did not engage in prior discriminatory
practices.
[106] I heard no evidence of this respondent’s ability to pay, though I
note that the evidence suggests that WCFU has now been disbanded.
[107] In all of the circumstances, I order that WCFU pay a penalty in the
amount of $5,000.00. Payment of the penalty shall be made by certified cheque
or money order payable to the “Receiver General for Canada.”
[108] While this respondent did not appear at the hearing, I have found
that Glenn Bahr was the founder and leader of the organization. I therefore
order that the penalty must be received by the Tribunal within 120 days of the
date when Mr. Bahr receives this decision.
Signed by
Julie C. Lloyd
OTTAWA, Ontario
December 1, 2006
PARTIES OF RECORD
TRIBUNAL FILES: T1087/6805 and T1088/6905
STYLE OF CAUSE: Richard Warman v. Western Canada for Us and Glenn Bahr
DATE AND PLACE OF HEARING: May 23-26, 2006,May 29-June 1, 2006
Edmonton, Alberta
DECISION OF THE TRIBUNAL DATED: December 1, 2006
APPEARANCES: Richard Warma, For Himself
Giacomo Vigna/ Ikram Warsame For the Canadian Human Rights Commission
Paul Fromm For the Respondent, Glenn Bahr
No one appearing For the Respondent, Western Canada For Us
Source: Canadian Human Rights Tribunal
http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=811&lg=_e&isruling=0#1001272
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