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Resolution of complaints 96

Excerpt from the Annual Report
Canadian Human Rights Commission





Section 13 of the Canadian Human Rights Act prohibits the
transmission by any telecommunication means of messages that
are “likely to expose a person to hatred or contempt”, based on
a prohibited ground of discrimination. In January, the Federal
Court of Appeal dealt with two cases concerning Tony McAleer
and the Canadian Liberty Net. Both had their roots in a series
of complaints alleging that the Liberty Net had been playing
messages on its telephone hotline that violated the Act. After
investigating, the Commission requested that a human rights
tribunal inquire into these complaints. In the meantime, we
asked the Federal Court for an interim injunction prohibiting
the playing of those messages pending a tribunal decision. This
was granted, but the Liberty Net continued to transmit the same
messages by directing callers to a phone number it had
established in the United States. At a show cause hearing, the
Federal Court found the respondents in contempt of court and
sentenced McAleer to jail.

The respondents appealed the original injunction order and this
conviction to the Court of Appeal. Their main argument was that
the Federal Court had no authority under either the Federal
Court Act or the Canadian Human Rights Act to issue an interim
injunction before a human rights tribunal had made a finding.
The Court of Appeal agreed and found that the Act created no
right, in the Commission or anyone else, to obtain a prior
restraint on any communication before its legality has been
determined. The appellants also argued that they could not be
held in contempt of an order which was subsequently found to be
invalid. However, the Court held that an order of the court
must be complied with even while it is being challenged.

The Commission has been granted leave to appeal to the Supreme
Court on the issue of the injunction. By overturning the
Federal Court’s authority to grant an interim injunction, the
Court of Appeal has limited our ability to attack the on-going
harm created by hate lines pending a ruling from the tribunal.
The respondents have also obtained leave to appeal the decision
upholding McAleer’s conviction.

Another complaint against Tony McAleer and the Liberty Net was
brought by John Payzant. It was his contention that the group’
hotline promoted hatred and contempt against gays and lesbians
In February, the Federal Court upheld a tribunal decision that
the Liberty Net’s messages were likely to expose homosexuals to
hatred or contempt. Section 13 of the Canadian Human Rights Ac
was held to be a reasonable limit upon freedom of expression.
Court also rejected the appellants’ argument that sexual
orientation’ covers all forms of aberrant sexual activity such
incest, pedophilia and bestiality and its inclusion within the
forbidden grounds of discrimination would therefore be
tantamount to legally protecting these acts.

In a recent decision by the Federal Court, the Commission’s
application for a contempt of court order against June French,
Wolfgang Droege and the Heritage Front was dismissed. In March
1994, Wolfgang Droege and the Front agreed to a consent order t
cease and desist from playing messages which were likely to
expose persons to hatred or contempt or which were
substantially similar in form or content to two messages which
were the subject of complaints by the Native Canadian Centre.

In April 1995, based on a message played on the Heritage
Hotline in February that year, the Commission applied to the
Federal Court for an order holding the respondents in contempt
of court June French, the author and reader of the message,
denied she ht knowledge of the consent order or that she was a
member of the Heritage Front, but the Court found that she did
have knowledge, was acting in concert with the Heritage Front,
and was therefore subject to the consent order. The Court also
found that the original transcript of the message used by the
Commission in the show cause application was inaccurate. It
nevertheless accepted the Commission’s evidence that the error
was an innocent one and that it had no intention of misleading
the Court. In the end, the Court found that the February 1995
message was not similar in form or content to the messages
covered in the consent order. N was it satisfied beyond a
reasonable doubt that the new message was likely to promote
hatred or contempt of the Jewish community.

As noted in an earlier chapter, the Commission has asked that a
human rights tribunal be appointed to look into two complaints
against Ernst Zundel’s Internet Web site. The Toronto Mayor’s
Committee on Community and Race Relations and Sabina Citron
allege that the material found there could expose Jews to
hatred and contempt on the basis of their race, religion and
ethnic or gin. This is the first time that a tribunal will
consider complaints involving messages on the Internet.