File No. T460/1596


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CLAUDE PENSA, Q.C. Chairperson


Robert Armstrong, Q.C. for Sabina Citron and the Canadian
Wendy Matheson Holocaust Remembrance Association

Ward Earle for Toronto Mayor's Committee on
Community and Race Relations

Mark Freiman for the Canadian Human Rights Commission
Eddie Taylor

Douglas H. Christie for the Respondent

Marvin Kurz for the League of Human Rights of
B'nai Brith Canada

Robyn Bell for the Simon Wiesenthal Centre
Meredith Hayward

Seamus Woods for Canadian Jewish Congress
Judy Chan

Paul Fromm in person for the Canadian Association
for Free Expression

The Canadian Human Rights Commission ("Commission") called Professor F. Schweitzer, Professor of History at Manhattan College, as an expert historian in the field of anti-Semitism and Jewish Christian relations. His evidence in chief was largely directed to identifying classical anti Semitic motifs in material found on the Zundel site, the subject matter of the alleged discriminatory practices at issue in this hearing. Prof. Schweitzer also testified to the history of violence against Jews and the relationship of these violent episodes to specific periods of historical anti-Semitism. During the course of his cross examination, Mr. Christie, acting for the Respondent Mr. Zundel, sought to question Prof. Schweitzer on the 'truth' of the statements found on the Zundel site which were said by the witness to be anti Semitic.

Counsel for the Commission, supported by the complainants and the interveners save for Mr. Fromm, objected to this line of questioning. It was the submission of the Commission that truth was not a defence to a discriminatory practice under s. 13(1) of the Canadian Human Rights Act (herein referred to as the "Act"). Moreover, it was strenuously argued by the Commission that allowing Mr. Christie to pursue this line of questioning was antithetical to the very purpose of human rights legislation. Thus, the Tribunal was urged to rule that the truth or falsity of the statements were not relevant to a finding under s. 13(1), and that the dignity of the complainants and the proceedings should not be diminished by allowing the Respondent to prove or test the truth of inherently offensive comments.

Mr. Freiman, for the Commission, relies on the judgement of Dickson J., as he then was in John Ross Taylor and Western Guard Party v. Canadian Human Rights Commission et al. (1991) 13
C.H.R.R. p. D/435 for the proposition that truth is not a defence to allegations of discrimination under s. 13(1) of the Act. We were also referred to the Tribunal's decision in Nealy v. Johnson (1989), 10 C.H.R.R. D/6450, and Payzant v. Canadian Human Rights Commission, T.D. 4/94
released January 24, 1997.

Mr. Christie argued that the dicta of Dickson J. in Taylor, supra, was obiter as to whether truth was a defence, and did not address whether truth is nonetheless relevant to proving the essential elements of the offence under the Act. In Mr. Christie's submission, the Supreme Court of
Canada in Taylor simply considered the constitutional validity of s. 13, and whether s. 2(b) of the Charter required that there be a defence for truthful comment. In any event, even if Taylor
stands for the proposition that truth is not a defence under the Act, it cannot be said that the Court ruled that truth was irrelevant.

Mr. Christie argued that the truth or factual foundation of a statement alleged to violate s. 13(1) is relevant in two ways. He submitted first that 'hatred' and 'contempt' were irrational emotions which were logically inconsistent with knowledge of the truth. Second, he asserted that even if a truthful comment exposes a group to hatred or contempt, it would not be 'by reason of the fact

that that person or those persons are identifiable on the basis of a prohibited ground of

discrimination'. In Mr. Christie's submission, if one could prove that the facts contained in the statement were true then the person or group would be exposed to hatred or contempt by virtue of their conduct or behavior, not by reason of their race or ethnicity. Thus, in Mr. Christie's

submission, truthful statements are not capable of arousing hatred or contempt, but, if they do, it is not related to the target group's race or ethnicity but 'by reason of the fact' that that group has behaved in a way which, when known by others, exposes them to intense negative emotions.
Mr. Fromm supported the position taken by the Respondent.

These arguments require an analysis of the proper interpretation to be given to the hate message
prohibition contained in the Act. The relevant section reads as follows:

    s.13 (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or group of persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination."

In considering the issue of statutory interpretation, we are guided by the following three principles:

  1. In interpreting the Act we must strive for a purposive approach to that task and afford the language a large and liberal interpretation most consistent with achieving the objectives of the Am. (Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145;
    Action travail des femmes v. Canadian National Railway, [1987] 1 S.C.R. 1114);
  2. The general aim of anti discrimination legislation is to ensure that individuals are free from discriminatory conduct, and is not primarily directed to punishing the respondent.
    The ultimate goal is to eliminate, as much as is possible, the discriminatory acts and make
    the victim whole for any losses sustained as a result. Human rights adjudication is not
    penal but remedial in nature, (s. 2 of the Act: Ontario Human Rights Commission and
    O'Malley v. Simpsons Sears Ltd. [1985] 2 S.C.R. 536; Robichaud v. Canada (Treasury
    Board! [1987] 2 S.C.R. 84);
  3. It is the effect of an alleged action which forms the basis for our inquiry. As a corollary to this, and as was conceded by counsel for the Respondent, the intent of the Respondent is immaterial. Thus, it is the effect, or in the case of s.13(1), the likely effect, of a respondent's conduct which is relevant, not his or her intention (Ontario Human vet Commission and O'Malley v. Simpson Sears Ltd., supra; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Taylor, supra).

Bearing these principles in mind, we accept the proposition that truth is not a defence to an alleged violation of s. 13(1) of the Act. We note that the truthfulness of a statement is not listed as an explicit exception in s. 15 of the Act. Moreover, in our view, there is nothing in s. 13(1) of the Act which allows for an implied defence of truth. We would adopt the views expressed by the Tribunal in Taylor, T.D. 1/79 released 20 July 1979, that truthful statements may nonetheless expose one to hate or contempt, and that that exposure is the essential element of the prohibition found in s. 13(1). At p. 39 of its original decision, the Tribunal in Taylor held as follows:

We consider the following statement by Dickson J. in Taylor. supra, as strong authority for the Supreme Court of Canada's concurrence with that Tribunal's view that truth is not a defence under the Act, (at p.D/460):

Having thus stated the question, Dickson J. goes on to conclude that the Charter guarantee of free speech does not mandate an exception for truthful statements in the context of s. 13(1) of the Canadian Human Rights Act. Although Dickson J. was not technically dealing with the proper interpretation of s. 13 (1) but rather with its constitutional validity, his assessment depended on an acceptance of the Tribunal's conclusion that the proper interpretation of s. 13 did not permit such a defence. It would have otherwise been totally unnecessary for the Court to consider this aspect of the constitutional challenge.

The Respondent in this case did not forcefully argue that truth was an absolute defence in that proving the statements to be true would be determinative of the ultimate issue before us. Rather, it was his submission that truth was relevant to both a consideration of whether the statements are likely to expose a person or persons to hayed or contempt, and if so whether is it by reason of the fact that they are identifiable on a prohibited ground.

Dealing first with the submission that truth is relevant to a finding that the message is likely to expose a person to hatred or contempt we again turn to the decision of Dickson J. in Taylor, where at p. D/455 he quotes at length and with approval from the Tribunal's discussion in Nealy (at p. D/6469) of the meaning to be given to the phrase "hatred or contempt". Dickson J. then concludes as follows, at p. D/456:

We find this passage from Taylor to be instructive in that, consistent with a focus on effect rather than intent, it is the effect of the message on the recipient, and ultimately on the person or group vilified, that is the focus of the analysis. The truth in some absolute sense really plays no role. Rather, it is the social context in which the message is delivered and heard which will determine the effect that the communication will have on the listener. It is not the truth or falsity per se that will evoke the emotion but rather how it is understood by the recipient. The objective truth of the statement is ultimately of no consequence if the subjective interpretation, by virtue of tone, social context and medium is one which ëarouses unusually strong and deep-felt emotions of detestation, calumny and vilification.í Therefore, in our view, whether the message is true or not is immaterial. Whether it is perceived to be true or credible may very well add to its impact, but its actual basis in truth is outside the scope of this inquiry.

Mr. Christie also argued that the truth of the statements made by the Respondent was relevant to whether any hatred or contempt that was directed to the complainants was "by reason of the fact" that they were members of a group identifiable by their race, religion or ethnicity, or was by reason of their conduct or behavior. In the context of s. 13(1) of the Act we find that this is truly a distinction without a difference.

It has long been established that in making a finding under the Act, discrimination must only be a factor in establishing a discriminatory practice (See Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12; Foster Wheeler Ltd. v. Ontario Human Rights Commission and Scott (1987), 8 C.H.R.R. D/4179, Ont. Div. Court). In this case, that the group's conduct may be viewed as a reason for their exposure to hatred or contempt does not change the essence of the discriminatory conduct. Once a person or group is identified, directly or indirectly, on the basis of a prohibited ground it is somewhat disingenuous to say that it is their behavior and not their group membership which exposes them to hatred or contempt. To accept the Respondent's argument would clearly frustrate the legislative intent of this section and we consider the subtle distinctions advanced by Mr. Christie as contrary to the Act's objectives, which were stated as follows by Dickson J. in Taylor, supra, at p. D/550:

In any event, we further find that the underlying truth or falsity of the comments are not of particular utility in making the argument on the basis advanced by the Respondent. This argument relies essentially on correctly interpreting the statements made by a respondent perhaps with the assistance of an expert in semantics or other relevant field, to evaluate whether hatred or contempt is aroused ìby reasonî of the target group or individualís race or conduct. Whether the statements are true or not will not have any particular bearing on the analysis.

Finally we wish to address Mr. Christie's submission that it is truth which allows us to distinguished between hate and rational discourse. The need to ensure that there is scope for legitimate criticism was of particular concern to Mr. Christie. In his view, a group should not be insulated from negative comments merely by virtue of their designation on the basis of a prohibited ground of discrimination.

Parliament has spoken and determined what the scope for legitimate criticism will be, at least in so far as messages are communicated telephonically. Messages will transgress our social consensus on what is to be tolerated in the circumstances specified in s. 13 (1 ) of the Act. At the risk of stating the obvious, the scope for negative criticism is limited to comments which are either silent or neutral regarding membership in a group identifiable on a prohibited ground, or which do not promote hate or contempt. If the message ìis likely to expose a person or persons to hatred or contemptî then, insofar as those individuals are targeted on the basis of a prohibited ground under the Act, the comments are no longer legitimate criticism.

In arriving at our conclusion we are mindful of the admonition of reviewing courts that we ought to be extremely reluctant to exclude evidence or restrict the right of cross examination. We are also sensitive to the need to complete the hearing in a timely fashion. The present witness has undergone cross examination for nearly three full days. Mr. Christie has been afforded a wide latitude in the questions posed on cross examination. As we remarked in an earlier ruling, the boundaries of permissible cross examination do, however, have outer limits. In our view, questions as to the truth or falsity of the statements found on the Zundel site add nothing to our ability to determine the issues before us, and potentially will add a significant dimension of delay, cost and affront to the dignity of those who are alleged to have been victimized by these statements.

We obviously have not arrived at any conclusions with respect to whether this Respondent has in fact contravened s. 13(1) of the Act. As Counsel fully appreciate, there are many complex and difficult questions of law and fact to be considered in this case. However, we have concluded that it would not advance this process to convert this inquiry into a forum for proving the truth or falsity of the impugned statements.

Given our understanding of the ultimate issues before us, it is not helpful to this Tribunal to this expert on the underlying truth of the statements considered by him to contain anti Semitic themes.

Dated this 25 day of May 1998.

Claude Pensa, Q.C.

Reva E. Devins

Harish C. Jain