[1994] 1 F.C. 203
T-1539-92
Canadian Human Rights Commission (Applicant)
v.
The Heritage Front and Wolfgang Droege (Respondents)
Indexed as: Canada (Human Rights Commission) v. Heritage Front (T.D.)
Trial Division, Joyal J.—Toronto, October 8, 1993.
Practice — Contempt of court — Whether hot-line messages violating Court order, issued pending disposition of complaint by CHRT, enjoining respondents from using hot-line to communicate hate messages — Contempt proceedings criminal in nature, subject to criminal rules — Proof beyond reasonable doubt required for conviction — Not established beyond reasonable doubt messages contrary to Canadian Human Rights Act, s. 13(1) or substantially similar to specific hate messages prohibited by Court order — Federal Court Act, s. 44 invoked to enjoin respondents from operating hot-line until CHRT rules on complaint.
Federal Court jurisdiction — Respondents charged with contempt for violating interlocutory order, issued by Federal Court pending final disposition of complaint by CHRT, enjoining them from using hot-line to communicate hate messages — Contempt charge dismissed but, to prevent exacerbation of situation, Federal Court Act, s. 44 invoked to further enjoin operation of hot-line at all until CHRT rules on complaint.
Constitutional law — Charter of Rights — Fundamental freedoms — Freedom of speech — Hate messages — Whether respondents in contempt of court for violating interlocutory order enjoining them from using hot-line to communicate hate messages — S.C.C. trilogy on hate messages considered.
The respondents had been enjoined from using a “hot-line” to communicate hate messages, and in particular, any message substantially similar in form or content to specific messages identified by the Court. This order was made pending final disposition, by a Canadian Human Rights Tribunal, of a complaint against the respondents, under subsection 13(1) of the Canadian Human Rights Act, with respect to the communication of hate messages. This was a charge of contempt for breaching that order by making available further allegedly similar hot-line messages.
Held, the contempt charge should be dismissed, but the respondents further enjoined, under the authority of section 44 of the Federal Court Act, from operating their hot-line until the CHRT has ruled on the complaint.
The narrowly split decisions of the Supreme Court of Canada in the hate messages trilogy (Keegstra, Zundel and Taylor) illustrate the problems of according legitimacy to statutory constraints on freedom of expression as guaranteed by paragraph 2(b) of the Charter. In subjecting our value systems to a positivistic judicial test, the courts are entering into a field of secular theology.
Contempt proceedings are criminal in nature and the usual doctrine of presumption of innocence and proof beyond a reasonable doubt apply to them. After hearing expert testimony as to the form and content of the messages, it had not been established beyond reasonable doubt that the impugned messages were of a nature likely to expose persons to hatred and contempt. It will be the responsibility of the Tribunal to make a finding on them, free from the constraints imposed on a court in contempt proceedings.
Nor was it established beyond a reasonable doubt that the messages communicated since the date of the order were substantially similar in form and content to those specified therein. They were, however, of a nature that would exacerbate the situation and lead to repeated recourse to and intervention by the Court.
To prevent this, section 44 of the Federal Court Act, which gives the Court jurisdiction to make such orders as appear just and convenient, should be invoked to enjoin the respondents from operating their hot-line until the Canadian Human Rights Tribunal has ruled on the complaint currently before it. Given that the hot-line was not a means of mass communication, this was a minimal restriction on activities which otherwise might be legally open to the respondents.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b), 15, 27.
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 5, 13(1), 14, 49(1.1) (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 66).
Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 13(1).
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35.
Criminal Code, R.S.C., 1985, c. C-46, ss. 181, 319(2).
Federal Court Act, R.S.C., 1985, c. F-7, s. 44.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
R. v. Keegstra, [1970] 3 S.C.R. 697; (1990), 114 A.R. 81; [1991] 2 W.W.R. 1; 77 Alta. L.R. (2d) 193; 61 C.C.C. (3d) 1; 3 C.P.R. (2d) 193; 1 C.R. (4th) 129; 117 N.R. 284; R. v. Zundel, [1992] 2 S.C.R. 731; (1992), 95 D.L.R. (4th) 202; 75 C.C.C. (3d) 449; 16 C.R. (4th) 1; 140 N.R. 1; 56 O.A.C. 161; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; (1990), 75 D.L.R. (4th) 577; 13 C.H.R.R. D/435; 3 C.R.R. (2d) 116; 117 N.R. 191.
REFERRED TO:
Beddow v. Beddow (1878), 9 Ch.D. 89; Re B.C. Govt. Employees’ Union (1983), 48 B.C.L.R. 1 (S.C.); affd (1985), 64 B.C.L.R. 113 (C.A.); affd sub nom. B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214.
CHARGE OF CONTEMPT against the respondents for breaching an order enjoining them from using their hot-line to communicate hate messages. Charge dismissed, but the respondents were further enjoined from operating their hot-line until the Canadian Human Rights Tribunal has ruled on the complaint before it.
COUNSEL:
William F. Pentney for applicant.
George A. Wootten and Harold J. Doan for respondents.
SOLICITORS:
Canadian Human Rights Commission, Ottawa, for applicant.
George Wootten, Etobicoke, Ontario and Harold J. Doan, Toronto, for respondents.
The following are the reasons for judgment rendered in English by
Joyal J.: This Court is seized of a charge of contempt against the respondents for breaches of the order of this Court dated September 29, 1992, corrected on January 19, 1993, which reads as follows:
This Court orders that the respondents, The Heritage Front and Wolfgang Droege, by themselves or by their servants, agents or otherwise, and anyone having knowledge of the said Order, be restrained and enjoined until final Order is rendered in the proceedings before the Canadian Human Rights Tribunal (Files No. T-41854 and T-41855) commenced by the Native Canadian Centre, from communicating or causing to be communicated, by telephonic means, messages that are likely to expose persons to hatred or contempt by reason of the fact that those persons are identifiable on the basis of race, national or ethnic origin, colour or religion, and in particular, the messages attached as Exhibit “A” and “B” to the affidavit of Rodney Bobiwash, sworn June 24, 1992, or any other messages of substantially similar form and content.
THE BACKGROUND
The issue has its origins in a complaint made by the above-named Rodney Bobiwash to the applicant Canadian Human Rights Commission, alleging that certain telephonic messages delivered via hot-line by the respondents were contrary to subsection 13(1) of the Canadian Human Rights Act [R.S.C., 1985, c. H -6]. The text of these messages may be found in Appendices I and II of these reasons.
The complainant alleged that these messages were likely to expose persons identifiable on the basis of ethnic origins, to hatred and contempt. The Commission launched an investigation and on the basis of the evidence before it, its President, on May 26, 1992, and pursuant to subsection 49(1.1) [as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 66] of the Act, appointed a Tribunal to inquire fully into the matter.
Shortly thereafter, on June 24, 1992, the applicant Commission asked this Court that the respondents be prohibited from delivering further hot-line messages like those of the subject complaint until the Canadian Human Rights Tribunal had ruled on them. This application was heard before the Associate Chief Justice and, on consent of the parties, the order previously cited was issued.
Subsequently, the Commission had reason to believe that the respondents were defying the Court’s order. It issued proceedings against the respondents for contempt of court and the matter finally came on for trial before me in Toronto on February 23, 1993. The trial continued on April 6 and again on August 17 and 18, and concluded on August 19, 1993.
The issue before the Canadian Human Rights Tribunal deals in plain terms with what is currently called racist literature. The respondents do not deny that their purpose is to promote White racism against what they call the onslaught of Black and Asian immigrants on Canadian shores and against what they perceive to be the increasing demands of Canadian Aboriginals for self-rule and compensation for lands from which the white man has illegally deprived them.
One may then generalize on the kind of messages which the respondents are giving out to anyone who cares to phone this hot-line. These messages are critical of non-selective immigration policies; they decry the changes in the urban landscape of Canadian cities by the ever larger groups of non-European immigrants and the consequent erosion of white European values; they are critical of government policies towards Aboriginal claims generally. Even such a sacred cow as Canada’s constitutionally-entrenched policy on official bilingualism is the subject of critical comment.
To what constituency is that racist message addressed? It is clear to me that whereas there may be an incipient or atavistic degree of racism in everyone which, in a Canadian context, has become known as the exclusive attribute of a white majority, it does not necessarily follow that this majority is homogeneous or that its values or its human characteristics are common to everyone in that group. Perhaps the only thing which that majority has in common is a common skin pigment. Within its multitudes may be found identifiable cultural groups, language groups, religious groups, as well as identifiable occupational and economic groups, all of which defy the monolithic image which contemporary sociologists, psychologists and anthropologists ascribe to it. Within the category of economic standing, where is the group—relatively inarticulate and insecure, without any institutional leverage to voice its preoccupations and concerns—which would not find the respondents’ message of singular attraction? Do not the numbers of that group represent an identifiable minority? How obvious it might be, as one reads the plethora of literature and comment on racist activities, that it is from within this particular segment of our community that racist groups find their constituency. Leaders and adherents of these groups are not the product of institutes of higher learning nor, with their hard hats, do they have ready entry into Riverdale or Westmount or Tuxedo Park. Nor are they likely to be the subject of fashionable profiles in glossy magazines. Racist groups identify with this undefinable powerless working class and they are there to provide a voice, an explanation of their frustrations and insecurities as well as the kind of exposure they have not hitherto enjoyed. In their minds, it sort of makes up for the exposure that racial, ethnic and Aboriginal minorities are getting through mainstream media and intelligentsia preoccupations. It is, in my mind, an innate, visceral feeling: if I cannot be invited to your party, I’ll organize one of my own.
In this generally pro-White or racist policy, the respondents are of course targeting those racial, ethnic or other identifiable minorities who, as minorities generally, have a higher level of susceptibility to the less than subtle messages from the respondents. These minorities are especially concerned by reason of their belief that they are protected by a constitutionally guaranteed policy of multiculturalism and by the non-discrimination clause of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. They fear that racist policies might slowly erode the public’s respect for and adherence to these important values and effectively reduce these constitutional guarantees to mere bits of paper. The fact is that, as new immigrants or as Aboriginals, they are mostly at the bottom of the economic pile. They may be said to be fighting on two fronts: one to overcome the evident obstacles to the good life and the other to do so in a climate of peace and harmony.
Perhaps if pushers for White racism were left alone with their fringe jackbooters to beat their drums in isolation, their influence on community relationships would be merely a parody of what happened in the Third Reich earlier in this century. The labels of neo-nazism or neo-fascism attach readily to their activities, but most of these activities would appear to be media events where the members of the press are disproportionate to the number of participants. The few adherents follow their scenario with “Sieg Heil’s” and Nazi salutes, proudly display their swastika tatoos and the media lap it up like mother’s porridge.
Groups like the respondents, however, are not left alone on the playing field. Multicultural policies have enabled identifiable minority groups to form community organizations to provide overt opposition to advocates of racist policies. In Toronto, the anti-racist movement clamours just as much for media coverage by way of meetings and demonstrations and other activities. As a result, there have been confrontations with the respondents which became so nasty that the riot police had to intervene. Since that time, security forces are on the alert whenever either group organizes any public manifestation of its individual creed.
These observations are meant not merely to indicate somewhat superficially the sociological discipline to which these issues are subjected, but more to underline that courts, having traditionally been called upon to decide issues on the basis of hard facts—the kind of rummage room in which trial judges find their judicial role—are now having to inquire, as in the case before me, into what might otherwise be called soft data, i.e. assertions which are not the product of objective inquiry, but are intellectualized observations expressed in esoteric language and reflecting in most instances conflicting ideologies. Such observations are usually the role ascribed to philosophers who provide the court with their erudite opinions. As in the case before me, or as in any issue touching upon race discrimination, hate literature, sexual orientation and the like, it might perhaps be said that philosophers are now finding courts to their liking.
The result is that a community like Canada having put into constitutional doctrine social values expressed in words which are so conceptual that their meaning is more a matter of dialectic than otherwise (witness the constitution of the former USSR, which in its text is the quintessence of a free and democratic system of government, but where the concepts involved have a particular Marxist or Hegelian logic to them), it is no wonder that contemporary enquiry into the range of opinions and the limits of unfettered freedom under the newly-founded Canadian constitution is destined to be a more cosmic search into areas hitherto left to academic profundities.
And so, with particular reference to what interpretation the courts have given to freedom of speech under section 2 of the Charter, to the more sectional approach to individual anti-discrimination provisions under section 15 and to the more collective provisions of sections 35 [Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and 27 of the Charter, the mind muses on the extent to which the conflicting values inherent in both the individual and collective approach to rights and freedoms in our Constitution can be interpreted or reconciled. The thrust imposed on Canada’s Supreme Court in that regard has been, everyone will admit, a very arduous one. As was noted by an eminent jurist in a recent issue of L’Actualité, [translation] “law is adversarial or ‘binary’ and blind to shades of grey in ethical dilemmas”.
THE STATUTORY CONTEXT
To better understand the position of this Court by reason of the particular nature of these proceedings, one must first of all keep in mind that contempt proceedings are criminal in nature and the usual doctrine of presumption of innocence and proof beyond a reasonable doubt apply to them. Secondly, one must keep in mind the history of legislative enactments and judicial pronouncements on the subject of discrimination, hate literature, the dissemination of false news and the like. These have been laboriously examined in order to provide some guidance to the community as to what it can and cannot do. The task has not been easy.
With respect to hate or racist literature, and the spreading of false news, a trilogy of Supreme Court decisions bears this out. In the R. v. Keegstra case [1990] 3 S.C.R. 697, by a four to three majority, the Supreme Court of Canada upheld the validity of subsection 319(2) of the Criminal Code [R.S.C., 1985, c. C-46] prohibiting the dissemination of hate propaganda. In the case of R. v. Zundel, [1992] 2 S.C.R. 731, again by a bare four to three majority, the Court declared unconstitutional section 181 of the Criminal Code prohibiting the spreading of false news. Finally, in the case of Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, the Supreme Court upheld the constitutional validity of subsection 13(1) of the Canadian Human Rights Act [S.C. 1976-77, c. 33] by declaring that the kind of prohibition set out therein was, in terms of our fundamental constitutional values, protected by section 1 of the Charter. I need not remind the parties that in that case, the Supreme Court split five to four, again a bare majority.
It will be evident that in subjecting the foregoing value systems to positivistic judicial test, the courts are entering into a field of secular theology, a field not far removed from that exercised by theologians in the Middle Ages, and whose pronouncements have often become today the butt of fashionable ridicule. Heaven forbid that our new approach should later suffer the same fate.
FACTS BEFORE THIS COURT
The respondents are charged with a breach of an order of this Court. That order enjoins them from sending out messages that are likely to expose persons in an identifiable group to hatred and contempt. That injunction is textually the same as subsection 13(1) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6, and on the subject of which a Tribunal has been set up to investigate and rule accordingly.
To the messages from the respondents attached to the affidavit of Rodney Bobiwash referred to in the above order are filed a number of messages subsequently given out on the respondents’ hot-line and transcribed. They are appended to these reasons chronologically as Appendix III to Appendix XII. All of these messages, as well as messages recorded prior to the date of the Court’s order, are the subject of evidence by an eminent expert in linguistics and by an equally eminent anthropologist.
The contributions by the linguistics expert, Dr. Susan Erlich, is to analyze the form and content of these messages. Her approach, in the language of her expertise, is discourse analysis. Language, she says, reflects ideology. In the messages of the nature before the Court, all of which she examined thoroughly, she looks for rhetorical strategies as indicated by sentence structure, word choice and repetition, the kind of thematic repetition found in Ravel’s Bolero. As in the message attached as Exhibit “B” to the Bobiwash affidavit, relating to Aboriginal claims, she notes statements that the claims are flooding Canadian courts, that they are ridiculous, silly, and wasteful of taxpayers’ money. She then finds what she terms a technique of reverse strategy in reference to a hot-line statement that the Indians might have a history of brutal tortures and killings, nevertheless they enjoy tax-free status and hunting rights all year long. These are privileges that Whites don’t enjoy. The Whites are the victims.
The witness then analyzes the message in Exhibit “A” of the Bobiwash affidavit and describes the emotional stimulation found in it. The message says that in the face of Indian claims, one should renounce Canadian citizenship, find an Indian to whom all of one’s property is ceded and crawl into a hole and die. The message then addresses the issue of immigration from the Third World. There is a lot of empty land in Canada, it says, but the majority of immigrants move to our cities which are already overcrowded, thereby contributing to rising housing costs, crime, traffic congestion, etc.
The witness then proceeds to make a similar analysis of some 15 other messages filed on the record and given over the respondents’ hot-line at various times in 1992 and 1993. She finds the same kind of rhetorical strategies: the need for racial homogeneity, the danger of multiculturalism, the problems of affirmative action, the victimization of whites, the prejudice to Canadians in need by the giving away of two billion dollars per year in foreign aid.
The conclusion of the witness is that the messages in the Bobiwash affidavit are of the nature prohibited in subsection 13(1) of the Canadian Human Rights Act and that the messages subsequent to the Court’s injunction order are substantially similar in form and content.
On cross-examination by respondents’ counsel, the witness admits that she has not studied the effects of these messages on any listener who has called the hot-line and that she has no information as to who the callers are. She knows about the Heritage Front, and in her opinion, it is neo-fascist and racist in character and that she expects the messages to reflect it.
She cannot provide an opinion as to whether a criticism of Indian land claims constitutes racism. She has no answer as to whether in depicting the Indians in “Dances With Wolves” as noble savages, she is aware of the Canadian Martyrs in Midland.
Respondents’ counsel then produces a story which had appeared in the Toronto Star on January 13, 1993, describing the death in Moscow of Helen Kroeger who, with her husband Peter, had escaped from the United States when the Julius and Ethel Rosenberg spy case blew up. Helen and Peter Kroeger’s real names were Lola and Morris Cohen. Wasn’t this, he asked, substantially what the hot-line message of January 15, 1993, contained?
Respondents’ counsel also produced an article by Eric Margolis in the Toronto Sunday Sun of August 15, 1993, expressing serious consequences of a mass influx into Canada and the U.S. of immigrants with Asian, African and Mexican backgrounds. Could such opinions, asks counsel, be termed racist and of a nature to attract the sanction of section 13 of the Canadian Human Rights Act? To which, of course, the witness could not give a definitive reply.
The other witness produced by the applicant is also an academician of standing. She is Dr. Frances Henry, an anthropologist specializing in social anthropology, who has long been involved in issues of racism and has given expert evidence as to the cultural background of people charged with various offences. She is also an expert and very much involved in race relations and anti-racism. She was latterly a nominee for the Tribunal Panel of the Canadian Human Rights Commission, but was not called upon to serve. She is also a consultant for the Commission.
With respect to the hot-line messages, the witness testifies that in her opinion, they all have an underlying racist theme. She knows all about the respondents and describes them as a right-wing, neo-nazi, reactionary and racist movement. She has also done a content analysis of the messages to which earlier evidence had referred, and in general, substantiates the observations made by Dr. Erlich. She concludes that the messages are to promote fear, hatred and apprehension among white people against anyone who is not white. Studies in learned papers in Canada, the U.S. and the U.K. on the phenomenon of racist groups generally demonstrate the impact they have on targeted groups in the community. These targeted groups are those segments of the large middle class who are unsure and look for guidance.
As in the case of Dr. Erlich, Dr. Henry has no opinion on the impact of the messages on those who call the Heritage Front hot-line. She does not know any member of the group, nor is she familiar with any document or manifesto setting out the programme and ideology of the group. When asked by respondents’ counsel if the views expressed in the messages are any different from the very similar views expressed from time to time in widely-read print media, the witness suggests that the two have different purposes. Newspaper articles might express similar messages, but their intention, in her view, is clearly different.
APPLICANT’S POSITION
Counsel for the applicant argues that the issue before the Court is two-fold. There is first of all the injunction against dissemination of messages “likely to expose a person or persons to hatred or contempt”, the whole as statutorily defined in subsection 13(1) of the Canadian Human Rights Act. Secondly, there is the rider enjoining the respondents from communicating messages of substantially similar form and content to those found in Exhibits “A” and “B” of the Bobiwash affidavit. These are the base-line messages, the ones with which all subsequent messages must be compared. According to the evidence of the expert witnesses, the subsequent messages are definitely similar in form and content. On that finding, the applicant says that the burden of proof beyond a reasonable doubt has been discharged and an order of contempt should issue.
RESPONDENTS’ POSITION
Counsel for the respondents, of course, take a contrary view. The thrust of the order of the Associate Chief Justice is that the respondents be enjoined from communicating messages on the hot-line which are contrary to subsection 13(1) of the Canadian Human Rights Act. The alleged breach must be proved beyond a reasonable doubt, a standard which need not be met under the more civil proceedings of a subsection 13(1) determination. Counsel argue that the same principle applies to both the base messages as well as those subsequently communicated.
Counsel for the respondents suggest that the Court must keep in mind that the respondents had consented to the order and there is evidence that they would have wanted the applicant Commission to vet their messages to make sure that their content would not be in breach of the order. Counsel says that if one agrees to an injunction, one would be foolish indeed to wilfully breach it.
As to the evidence before the Court, it is submitted by counsel that it consists purely of opinion evidence. The juxtaposition of expressions as outlined in Dr. Henry’s affidavit is not sufficient evidence of similarity. Neither does Dr. Erlich’s analysis in disclosing discursive strategies carry much weight in determining the issue of breach beyond a reasonable doubt.
The other proposition advanced by counsel is that the prima facie evidence of a breach of subsection 13(1) may be found in the Bobiwash affidavit, the substance of which has triggered the whole inquiry before the Commission and the subsequent proceedings before this Court. The respondents have had no opportunity to face their accuser, a denial of a fundamental right given to any person who might be subject to heavy penal sanctions. Argues counsel, is it to visit contempt or hatred on Indians to express strong opinions on Aboriginal rights, Aboriginal self-government or Indian land claims?
FINDINGS
I will readily admit that the findings of a court on the basis of all of the foregoing are not easy to make. This is especially so when the Canadian Human Rights Tribunal is already seized of the issue under subsection 13(1) of the Act and its inquiry has so far run through five sitting days with four more to run in the Fall, and presumably more to follow.
Firstly, I observe that should the Court find that beyond a reasonable doubt, the order has been breached, it could be interpreted as a usurpation of the exclusive jurisdiction which Parliament has seen fit to confer on the Tribunal when dealing with complaints under subsection 13(1) or under any of the other proscribed practices as set out in sections 5 to 14 of the Canadian Human Rights Act. The Court may accept the fact that Parliament has entrusted the determination of these issues to an administrative tribunal whose wide-ranging method of enquiry will be more conducive to wise and balanced rulings.
Secondly, the Court is faced not so much with a determination of whether or not the respondents are a racist group subject to automatic censure, but with a determination of what is the substance of the base messages themselves and whether or not subsequent messages are substantially of the same form or content. To invite the Court, faced as it is by a subsection 13(1) order, to make a finding on the likelihood of “hatred and ridicule” of the Bobiwash messages is to enter a dialectical field where only fools rush in and angels fear to tread.
Thirdly, the Court must consider that the messages proscribed by subsection 13(1) of the Act apply only to messages communicated by means of the facilities of a telecommunications undertaking within the legislative authority of Parliament. This is not a method of mass communication. People are invited to call. There is no evidence at all of the number of people who have called, or of the impact these messages have on them, or as to whether they are looking for grist for their racist mill, or whether they are merely curious, or whether they are looking for evidence on which complaints can be lodged.
Fourthly, I should refer again to the trilogy of Supreme Court of Canada decisions, i.e. Keegstra, Zundel and Taylor (supra) where the Court has had to deal with the criminality of hate messages and the spreading of false messages, as well as the constitutionality of subsection 13(1) of the Canadian Human Rights Act. A reading of these extremely narrowly split decisions is indicative of the problems of according legitimacy to some statutory constraints on the freedom of opinion and expression found in paragraph 2(b) of the Canadian Charter of Rights and Freedoms. It appears to me, on a reading of the Taylor case (supra), that the five to four majority was happy to find protection for subsection 13(1) under section 1 of the Charter on the additional grounds that it is not criminalized. Dickson C.J., in that case, said, at page 917:
It is essential, however, to recognize that, as an instrument especially designed to prevent the spread of prejudice and to foster tolerance and equality in the community, the Canadian Human Rights Act is very different from the Criminal Code. The aim of human rights legislation and of s. 13(1) is not to bring the full force of the state’s power against a blameworthy individual for the purpose of imposing punishment. Instead, provisions found in human rights statutes generally operate in a less confrontational manner, allowing for a conciliatory settlement if possible and, where discrimination exists, gearing remedial responses more towards compensating the victim.
To interpret the impugned messages in contempt proceedings where the gravamen of the complaint is subject to criminal rules might not be conducive to the better administration of justice.
I am left to look at the evidence of the several messages on the hot-line filed in Court and to which the two expert witnesses applied their analyses. There is no doubt that the language used in most of these is pungent, vigorous and “racy”. If the hot-line is for the purpose of giving a message, it may be said that the message gets across. When studying them, however, in the light of whether or not any of them constitutes a breach beyond a reasonable doubt of the substantive portion of the Court’s order, one must be careful not to read into these messages more than they contain. The Court, for purposes of these proceedings, cannot confuse the message with the messenger. The expert witnesses might think otherwise and suggest that any message from the respondents is racist in form and substance and in breach of the statute. Nevertheless, the Court cannot enjoy the kind of luxury which is otherwise available to protagonists when debating racial issues.
This is to say that I am not satisfied on the evidence that beyond a reasonable doubt, the impugned messages are of a nature likely to expose persons to hatred and contempt which, as is readily seen, is what the order prohibits and which is textually the prohibition found in subsection 13(1) of the Canadian Human Rights Act. It will be the responsibility of the Tribunal to make a finding on them and in that respect, the Tribunal will not be subject to the constraints imposed on a court in contempt proceedings.
This finding, however, does not completely clear the book as far as the respondents are concerned. The order of the Court contains the following rider: “and in particular, the messages attached as Exhibits A and B to the affidavit of Rodney Bobiwash, sworn June 24, 1992, or any other messages of substantially similar form and content.”
That proviso gives the Court another issue to resolve, i.e. is there evidence in the messages of the respondents communicated since the date of the order which are substantially similar in form and content to those found in the Bobiwash affidavit? In that inquiry, the Court must avoid reading into the messages more than is in them.
The message of January 15, 1993, and which I have reproduced as Appendix III to these reasons, certainly does not fall into the prohibited category. It speaks of the Reform Party and its leader, Preston Manning. It then speaks of the Kroeger demise in Russia and informs the caller that her real name was Lola Cohen who, with her husband Morris, were involved in the Rosenberg affair in the U.S. during the 1950s. The text appears to be straight out of newspaper articles.
The January 8, 1993 message, Appendix IV, makes one wonder why the respondents should raise the memory of Charlie Chaplin as a communist and a traitor to all the American values which had made him rich and to identify him by his real name, which has a Jewish connotation to it without specific racial identification. Charlie Chaplin might be mostly a nostalgic relic in the minds of most people who might or might not take kindly any reference to him outside of the field of entertainment which he otherwise provided in his day. Yet, I cannot conclude that it is similar in form and substance to the base messages.
The message of February 3, 1993, Appendix V, is another one which is crafted in generic terms. It suggests that there are lessons to be drawn from ethnic, tribal and religious divisions in many countries of the world, and that official multiculturalism goes against natural forces. Again, I fail to see that message as substantially similar in form and content to the Bobiwash exhibits.
Appendix VI, the message dated February 4, 1993, is merely verbal slugging between the respondents and a third party by the name of Kevin Thomas.
The next message, Appendix VII, of February 5, 1993, might be racist in tone, but in terms of Canadian policy on multiculturalism, it suggests that historically, it was not believed that integrating cultures and races would bring peaceful results. This position is, of course, far from unique in the Canadian community.
On a reading of the February 8, 1993 message (Appendix VIII), no comment is required.
Likewise the February 9, 1993 message (Appendix IX) is simply a cry for freedom of speech and a plug to have the listener find out more about Heritage Front.
Appendix X, the message of February 10, 1993, seems to suggest a more defensive stance being taken by the respondents. The target addressed is not certain identifiable minorities, but the anti-racist movement. The message purportedly comes from a listener in Scarborough, who says of racists and anti-racists, “a pox on both your houses”—a comment which might be shared by many people in Toronto.
The February 11, 1993 message, Appendix XI, might be closer to the line. It refers to attacks in the streets of Dallas, to the Rodney King civil trial and the Reginald Denny affair in Los Angeles. It speaks of riots in these U.S. cities where blacks were obviously involved. It speaks of hereditary factors and makes the prediction that “Dallas, L.A. and Toronto will all burn in the end.” This message is more virulent in tone, but in my view, falls short of the more explicit messages found in the Bobiwash affidavit.
The final message, Appendix XII, is dated February 12, 1993. I have no difficulty in interpreting it as a strong statement against current immigration policy in general. Although it might be said to be racist because of the message’s origin, I cannot find that it is substantially similar in form and substance to the base messages.
I should therefore find the respondents have not breached the order of this Court dated September 29, 1992 as corrected on January 19, 1993. The contempt charges against them must be dismissed.
FURTHER DISPOSITION
The Court takes judicial notice of the antagonisms between racist and anti-racist groups in the city of Toronto, where both factions have been found demonstrating before the offices of the Canadian Human Rights Commission, before the Federal Court or before the Provincial Court Building where the Human Rights Tribunal scheduled its hearings. This is disruptive of the process of understanding and conciliation which is essential to the maintenance of the Charter rights under section 15 and the preservation and enhancement of our multicultural heritage under section 27.
These value-related provisions are not simply bland statements for which only the lip offers service, but are part of the fundamental laws of the land, to which Canada has subscribed in accordance with a free and democratic process. While defining a value system for Canadian citizens, they impose civic obligations as well. These obligations are: to strive for improvement in our mutual relationships; to learn and to appreciate that the human condition is full of prejudices, but that these prejudices should not submerge the basic need for mutual respect and mutual tolerance.
As I informed the parties at the close of the trial, such is the kind of restraint which has been one of the great characteristics of this country. There have been conflicts, but compared to other countries and other communities, it is heartening to witness how few of these conflicts have been decided by focusing on differences to the level of violence, and how many more have been resolved by stressing similarities to the level of compromise.
I have mentioned before that for purposes of the orderly and peaceful administration of our laws, compromises must always be made between conflicting values, all of which may be said to be equally imperative. Sometimes, the compromise is not easily achieved and especially in the respect we owe to the doctrines of equality and multiculturalism, and the respect we also owe our very much cherished freedom of thought, belief and expression, we are witnessing the stresses and strains which our ultimate arbiters in the Supreme Court of Canada are facing in reaching consensus.
The difficulties in finding a “juste milieu” is one which, in my respectful view, should be shared by all of us. In finding solutions, it is of no help to adopt inflammatory rhetoric and provoke confrontations, or to create antagonisms which only polarize the issues. It is of no comfort to observe that the inherent conflicts between various large groups in such an eclectic community as Toronto are being promoted, and that groups are capitalizing on the fears which each of them might have reason to bear.
If I have found that the messages given out by the respondents are not necessarily in breach of subsection 13(1) of the Act and if I cannot beyond a reasonable doubt find them in breach of the order of this Court, it does not follow that the messages, taken as a whole, are like wholesome homilies of a nature to promote peace on earth and goodwill to all men. There are clear elements of racism in all of them. They are stereotypical of many other messages this country has heard over the years and which foment disruption, disunity and untoward fears. From one point of view, the messages might be untouchable. Socially or morally, however, they undermine the efforts of most Canadians, of all races, creeds and ethnic backgrounds, to contain their fears and vicissitudes over matters foreign or strange to them or to refrain from giving full public expression to them. Such habitual restraints and obligations are in keeping with the obverse side of our constitutional guarantees of rights and freedoms. They are, in my view, constitutional conventions without which entrenched constitutional safeguards would provide no security at all to the peace and well-being of everyone.
The respondents, on many fronts, are promoting the theme of white supremacy. They are capitalizing on human fears and resentments when so many other community groups are dedicated to attenuating them. They are provoking equally intransigent positions among anti-racist movements who may also be said to promote fears and resentments among their own constituents.
It is not the role of this Court to draw conclusions on the many observations contained in these reasons, nor to rule on the several issues which the evidence otherwise raises. In the exercise of its discretion, however, a Court should strive to find some formula so that messages of the kind I have described cannot be a continuing source of conflict or feed on the fires of current discontent.
In brief, the fact that the respondents are not guilty of breaches of this Court’s order does not mean that all issues are resolved. The messages themselves, as well as the public’s greater awareness of their contents, are in my view of a nature to invite more antagonism and open the door to repeated recourse to and intervention by this Court. The Court’s order has not prohibited the respondents from using their hot-line. The messages I have reviewed might be able to survive the test of criminal rules, but I venture to suggest that were it otherwise, the respondents would have had to bear a heavier burden of proving fair comment. Many of the messages are of the same genre as those otherwise prohibited. Some of them, wearing an observable racist or white supremacist complexion, are dangerously close to the base messages. The situation is accordingly one where continuing borderline messages are to be expected, resulting in an escalation of the current tension. The situation is evidently not one to maintain or restore peace, order and calm, as was the obvious purpose of the Court’s original order.
I have reached the conclusion that no more uncertainty or instability should be risked or invited. I am of the opinion that pending a determination of the subsection 13(1) issue by the Tribunal, the situation should not remain open to more provocations, more confrontations and further recourse to this Court.
How best to accomplish this? I cannot stop all the activities of the respondents. Nor can I stop any interested members of the public from coming before this Court with respect to the respondents’ activities. Yet, I believe there is jurisdiction given to this Court under section 44 of the Federal Court Act [R.S.C., 1985, c. F-7] to make such order as appears just and convenient. Although this power is given in statute form, it is no more than a recognition of the extensive jurisdiction to superior courts recognized at common law.
In the celebrated case, Beddow v. Beddow (1878), 9 Ch.D. 89, Sir George Jessel, M.R., said this, at page 93:
I have unlimited power to grant an injunction in any case where it would be right and just to do so.
That same principle or doctrine was adopted by McEachern C.J.B.C. in Re B.C. Govt. Employees’ Union (1983), 48 B.C.L.R. 1 (S.C.), and confirmed by the British Columbia Court of Appeal, (1985), 64 B.C.L.R. 113, and further endorsed by the Supreme Court of Canada, [1988] 2 S.C.R. 214.
From the evidence before me, I conclude that the restraining order of this Court facing the respondents is not, as circumstances have proved, fulfilling the purposes which were obviously intended. I would therefore propose to restrain the respondents one step further and this to enjoin them from operating their hot-line until the Canadian Human Rights Tribunal has ruled on the complaint currently before it. For the reasons stated, I am satisfied that it is just and convenient that I do so at this time. I am also satisfied by the nature of the hot-line activity, which cannot be categorized as a means of mass communication, that such an order imposes a minimal restriction on the activities of the respondents which might otherwise be legally open to them.
An order will issue accordingly. The contempt charge against the respondents is dismissed and they are free to go about their affairs.
* * *
APPENDIX I
Thanks for calling the 24 hr Anti-Immigration Hotline sponsored by the Heritage Front. This week on the Heritage Hotline, I would like to make a rebuttal to some ridiculous concepts promoted by the mass media. First and foremost is that this land is owned by and belongs to the Native Indians. If you believe this silly statement, then why don’t you follow it to its ultimate conclusion:
(A) Renounce your Canadian Citizenship.
(B) Find yourself an Indian, give him your home, property and all of your belongs and
(C) Crawl into a hole and die.
The fact of the matter is, that our forefathers forged this land out of an untamed wilderness. They fought and died for the land we now live in. If you are ashamed of that, then you get out. If massive European immigration to Canada destroyed the Indian way of life then what makes some white fools believe that this new wave of immigration won’t destroy ours. Make up your mind.
The second concept I would like to address is the belief that since Canada has so much empty land, that we need Third World immigration. This is wrong for two reasons:
(1) because the vast majority of immigrants move to our cities which are horribly overcrowded contributing to rising housing cost, crime, traffic congestion etc.
(2) Instead of drawing immigrants from non-traditional sources why don’t we have more children? The answer: because we can’t afford it, while sending 2 billion per year in foreign aid. What about helping out the young struggling Canadian families instead? Come on what’s going on here?
We have a meeting approaching quickly in a massive hall with some very energetic speakers. If you would like to attend and decide for yourself what the Heritage Front is all about, then leave your name and phone number at the tone. Please make it your name and phone number because of the postal strike.
Until next week, goodbye Canada.
We are the Heritage Front.
Fighting for a brighter tomorrow.
APPENDIX II
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16-1-92
Thank you for calling the Heritage Hotline:
Why does [sic] history books portray white settlers as savages out to murder the noble Natives, why do featuring movies such as “Dances With Wolves” conceal the brutal tortures and killings that were part of North American Indian Cultures while picturing them as angels. Any person who screams out that this land and everything on it belongs to the Natives is obviously unlearned.
It’s been documented that they crossed over the [Bering Strait] from Asia about 10,000 years ago, but just because they were the first to get here does not mean Canada is theirs. In a single century the white pioneers had achieved what no Indian could have ever dreamed of. They built cities, bridges and dams and brought decency and christianity to the warring tribes.
The taxpayers’ money is wasted by the unreal land claim demands which are flooding the Canadian courts, many of the areas have already been traded away to the missionaries but the Indians are never pleased with the privileges they enjoy, like not paying taxes and hunting all year long. Who do you think this land belongs to?
If you would like to answer this question or want more information, feel free to leave your name, address and telephone number after the tone.
APPENDIX III
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15-1-93
Thank you for calling the Heritage Hotline and in politics what a sad state of affairs it is when a so-called grass root party kowtow to a special interest group. Reform Party leader, Preston Manning gave an awkward and embarrassing speech as he bent over backwards at a B’nai Brith hosted event. He also rolled over and did backflips but this act was not appreciated. Preston Manning wants their community to join the Reform Party so to innoculate his party against racism. Maybe he wants to replace it with their brand of racism. Need a new speech writer Preston? And in the obituaries, communist spy Helen Kroeger has died in Russia at the age of 79. Peter and Helen Kroegers’ real names were Morrison and Lola Cohen. They worked with communist spies, Julius and Ethel Rosenberg, who were fried in the electric chair in 1953. Shocking isn’t it? Well, Helen Kroeger and hubby certainly deserved a similar fate but they escaped America to Britain where they continued their traitorous activities until they were eventually imprisoned. For more information, leave your name and telephone number. Thank you.
APPENDIX IV
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8-1-93
Thank you for calling the Heritage Hotline. Two thumbs down. Hollywood has done it again. Tinsletown will tug on your heart strings over their poor persecuted Charlie Chaplin. But we know that the little tramp was a little traitor. The notion that those who love money couldn’t be communist is absurd. A prime example is Charlie Chaplin, a man of enormous wealth earned in America under its system. Charlie Chaplin despised and attacked that same system so vicious that even the State Department excluded him from America for his pro-communist activities. At first glance, it’s difficult to understand why a man who enjoyed so much largesse and wealth from America as Chaplin did could possibly be a communist. One simple fact explains it. The same fact that you will find at the bottom of almost all communist activities. Charlie Chaplin’s real name was Israel Thornstein. His communist tendencies and sexual attitudes were his norm. Charlie Chaplin was not a genius though Hollywood tells us so. Anyone who made films in that era would’ve enjoyed the same notoriety. The Heritage Front believes in the truth. Not in Hollywood propaganda. Charlie Chaplin was a communist and a traitor. Two thumbs down for the little tramp. For more information, leave your name and telephone number. Thank you.
APPENDIX V
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3-2-93
Thank you for calling the Heritage Hotline. Conflict is the rule where ever two or more well-defined ethnic groups inhabit the same territory. This conclusion emerges from the writings of scholars who have furiously investigated ethnic relations on a world scale. Newspaper columnist Richard Reeves noted that racism is a part of life and that race war is a real threat in many countries. Reeves added that he has yet to see a place on our planet where people are truly not racist. Bitter tribal divisions in Africa, religious and ethnic hatred in the Middle East and Northern Ireland, and tensions over mass immigration to Western Europe. Most Asian countries share the belief that a society is strongest when its members all come from the same race or ethnic group. Self preservation is the natural law. Canadians of European decent are experiencing concerns about group survival and integrity. This is understandable. Each race creates the kind of society that is natural for them. Official multiculturalism will teach us one valuable lesson—you can’t fool mother nature. For more information leave your name and telephone number. Thank you.
APPENDIX VI
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4-2-93
Thank you for calling the Heritage Hotline for a profile of the radical left. Today we profile Kevin Thomas, spokesman for the ARA. That stands for anti-racist action. But Kevin Thomas is many things. He is also an anarchist. Kevin does an anarchist radio show on Tuesday afternoons at 12:30 p.m. It’s on CINT FM and the show is called Uppercuts. Sounds like a pretty hard hitting show, right? Wrong. I challenged Kevin Thomas to a debate on next Tuesday’s show, I publicly wanted to slam the misuse and overuse of the word Nazi. Kevin told me that he believed in debate but would not debate me. And why won’t he debate me? Simple—I’m right and he’s wrong. This anti-racist anarchist is unable to debate me. I win by default. Kevin knows that whites have as much rights as any racial group to celebrate their heritage. That’s not Nazism. Most people don’t even know that the word Nazi is a compound word meaning National Socialist. This was a pan-Germanic political party that ceased to exist in 1945. Those who promote hatred against whites always use the same old trick. Since Nazism included white unity, they tried to equate any white unity to Nazism. This is ludicrous, and intelligent people will recognize these antics as hate mongering. Kevin Thomas’ true colours are showing. Kevin the anarchist is not a good debater. And Kevin the anti-racist is the true hater. For more information, leave your name and telephone number. Thank you.
APPENDIX VII
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5-2-93
Thank you for calling the Heritage Hotline. Immigration became a major media issue in the summer of 1986 when Canadians learned about the immediate acceptance of the Tamil boat people. Opponents of this action wanted to know why people who broke the law trying to enter the country, then lied about their point of departure, should be allowed in on an administerial [sic] permit? The ideal is to clamour for more multiculturalism, however, praise the Mulroney government for its decisions. Prior to the 1950’s, English Canadians believed that confederation existed for one reason. The British Connection. Canada’s first Prime Minister, Sir John A. MacDonald said “A British subject I was born, and a British subject I will die”. But united Canadians was not a common geography, was not a desire to trade over long distances, but a greater wish to remain with the British and not the American Empire. But the liberal ideology filled the identity vacuum following the post war retreat of the British Empire. Pierre Trudeau said that the future of mankind lies in multinationalism. Canada was to become an experimental united nation for the world to stare in awe at. But our forefathers did not believe that integrating cultures and races would bring peaceful results. If they could see what we allowed to happen, they’d roll in their graves. For more information leave your name and telephone number. Thank you.
APPENDIX VIII
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8-2-93
Thank you for calling the Heritage Hotline. Most of the media has portrayed Heritage Front supporters in a stereotypical manner. Those who scream about stereotyping people are often the most extreme at doing it. The truth is, there is no typical Heritage Front supporter because many people see right through the media smear campaign. We have no interest in people who think like their TV set. We have no interest in people who are unwilling or unable to apply their own intellect. The Heritage Front is seeking new and progressive ideas from concerned citizens. And we’re getting them from all walks of life: labourers, civil workers, teachers, students and entrepreneurs. Even environmental groups now admit that immigration policy must be integrated into a population policy based on our economic and environmental potential. Some self-described moderate liberals are extremely fed up with political correctness and are now ready to hear some common sense. Even people who had believed that anti-racism was a noble cause, now realize that the anti-racist movement is blatantly anti-white. So turn off your TV set and meet the real Heritage Front. Leave your name and telephone number and a Heritage Front representative will get back to ya shortly.
APPENDIX IX
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9-2-93
Thank you for calling the Heritage Hotline. Many people now agree that Canada has become a tragedy. As most students of shakespearean tragedies may recall, a tragedy is an event that occurs when one’s own actions lead not merely to a failure to achieve one’s own potential, but ultimately to the point of one’s own self destruction. Canada should have the highest standard of living in the world. A clean environment and a society that respects individual rights and freedom. But this is not the Canada of 1993. We’ve gone from freedom to socialism; from fair play to discrimination; from prosperity to bankruptcy. Most young Canadians will never be able to afford a house of their own in their own Country. Changes will not come from vote-hungry politicians but from an informed citizenry. But now they want to silence any opinion which might offer any real insights or solutions. The government in Ottawa and their friends are certainly trying every trick in the book to shut this hotline down. This has created a volatile situation. Many citizens want to know why anyone’s freedom of speech should be stifled. If you are truly a freedom loving Canadian, then its time you learn the truth. For more information, leave your name and telephone number and a Heritage Front representative will get back to you shortly. Thank you.
APPENDIX X
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10-2-93
Thank you for calling the Heritage Hotline. The Heritage Front receives many interesting letters. Here’s one of them:
Dear Heritage Front: I’m not ashamed to say that I’m kind of an old hippie who used to participate in many peace demonstrations. This made me attracted to the so called anti-racist movement. I met with several organizers who supposedly fight rasicm and learned quickly that this was not their agenda at all. When they began spewing truly hateful words about your organization, I couldn’t help but be suspicious. When I asked them if Blacks and other minorities could be racist most of them actually said no. Then I knew they weren’t sincere. I listen to some of your phone messages and am opposed to most of what you say but the so called anti-racists I spoke to were terribly hypocritical. They were racist themselves, but only towards whites. I have come to the conclusion that their form of anti-white racism is no better than your racism. I say a pox on both your houses. Yours sincerely, Mark, from Scarborough Ontario.
For more information, leave your name and telephone number and a Heritage Front representative will get back to ya shortly. Thank you.
APPENDIX XI
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11-2-93
Thank you for calling the Heritage Hotline. And new sports, if you thought that the Super Bowl game had some hard hits then you should have seen the parade. Pictures don’t lie. And we wonder if this type of brutal conduct should draw a major penalty. What was the reason behind these attacks in the streets of Dallas Texas? The Rodney King civil trial didn’t even start yet. Those who brutalized Reginald Denny in a racist attack, haven’t even been sentenced yet. This was the Super Bowl Parade. It was supposed to be fun. So why did these savage attacks occur? The answer is simple. Race is a characterized community of hereditary factors, and characters like this can really rain on your parade. Dallas, L.A. and Toronto will all burn in the end. Many other cities will burn also. Will that be the Heritage Front’s fault? No way. You can’t pin it on the Heritage Front. You can pin it on the liberal lefts who are offended by honest discussion on these vital issues. The Heritage Front has answers. To hear some answers, leave your name and telephone number and a Heritage Front representative will get back to ya shortly. Thank you.
APPENDIX XII
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12-2-93
Thank you for calling the Heritage Hotline. And in politics, who is responsible for lighting the fuse to Canada’s Immigration time bomb. It was Lester B. Pearson who introduced the new Canada to be. Pierre Trudeau instigated the frame work. Clark and Mulroney fleshed it out with help from the Flora MacDonalds and Barbara McDougalls. Where did they get this mandate? Immigration is a time bomb getting ready to explode. The Canadian government is trying to paper this over and are very busy writing new laws to stop Canadians from speaking up. Mackenzie King once said that a country should surely have the right to determine what streams of blood it wishes to have in its population. Where are those with the convictions to stop the sell-out of Canadians? Before Lester Pearson, Canada was on its way to becoming a nation of Canadians. If present trends continue the word Canada will only be a geographic designation. No identity, no nation and no future. Leave your name and telephone number and a Heritage Front representative will get back to ya shortly. Thank you.