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Rochelle Wilner |
Frank Dimant |
Prof. Stephen Scheinberg |
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Rochelle Wilner |
Frank Dimant |
Prof. Stephen Scheinberg |
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By Marvin Kurz
Legal Counsel, League for Human Rights
B’nai Brith intervened in two recent human rights decisions that demonstrated the ability of human rights law to offer an effective remedy to hate speech on the Internet and in the press.
In January 2002 the Canadian Human Rights Tribunal released its long awaited decision in regard to Ernst Zundel. In that case, complaints were made with regard to Zundel’s use of the Internet to spread hatred. His website, called the Zundelsite, had gained notoriety as a purveyor of antisemitic Holocaust denial materials. The case raised four interesting issues, one of which was effectively decided before the hearing was released. The issues are:
1. Does the Canadian Human Rights Act (“the Act”) have jurisdiction over the Internet?
2. Can theAct have jurisdiction over a website whose home is located outside of Canada?
3. Is Holocaust denial material, in itself, “hate” prohibited under theAct?
4. Does the application of the Act to the Internet violate free speech rights under the Charter?
The first issue was finally settled by Parliament in an amendment to the Canadian Human Rights Act after the events of 9/11. The amendment made clear that the Act has jurisdiction over the Internet. Thus the decision in Zundel was somewhat academic, applying only to the old wording of the Act. In any event, the Tribunal relied on expert evidence to find that Internet does in fact come under the jurisdiction of the Canadian Human Rights Act.
Moving to the second issue, Zundel falsely alleged that the Zundelsite was owned by his paramour (now wife), Ingrid Rimland. At the time of the hearing, Ms. Rimland resided in California. Nonetheless the Tribunal found that Zundel had effective control of the Internet site. It further found that the fact that the site was located in a California computer did not deprive it of jurisdiction in regard to hate materials coming in to Canada.
In answering the third issue, the Tribunal found that the type of Holocaust material for which Zundel had become notorious is likely to promote hatred and contempt against Jewish people. Thus a “cease and desist” order under the Act was appropriate. The Tribunal rejected Zundel’s fallacious argument that there is an “academic debate” over the existence of the Holocaust. Instead it found that Zundel’s Holocaust denial materials were hateful and this was discriminatory.
Finally, in finding that the application of the Act to the Internet is constitutionally permissible, the Tribunal found that the Act violates free speech rights, but that those limitations are reasonable ones in a democratic society and saved under Section 1 of the Charter. It relied on earlier Supreme Court decisions, particularly ones involving notorious hate propagandists John Ross Taylor and James Keegstra.
In determining which remedy to apply, the Court considered the practicality of a cease and desist order against Zundel. It was aware that he fled Canada to join Ingrid Rimland in Tennessee. The Tribunal spoke strongly and eloquently of the symbolic as well as the practical value of its decision as follows:
“Any remedy awarded by this, or any Tribunal, will inevitably serve a number of purposes: prevention and elimination of
discriminatory practices is only one of the outcomes flowing from an Order issued as a consequence of these proceedings.
There is also a significant symbolic value in the public denunciation of the actions that are the subject of this complaint.
Similarly, there is a potential educative and ultimately larger preventative benefit that can be achieved by open discussion
of the principals enunciated in this or any Tribunal decision.
Parliament, on behalf of all Canadians, has determined that the telephonic communication of hate messages is not to be
tolerated in our society. In our view, the victims of hate are entitled to obtain the benefit of the full weight of our
authority”
A second important human rights tribunal decision, issued in November 2001, concerns the complaint of Harry Abrams against Doug Collins and the Vancouver area North Shore News. Mr. Abrams is the British Columbia representative of B’nai Brith Canada’s League for Human Rights. Originally the British Columbia Human Rights Tribunal had ordered, at the request of Mr. Collins and the North Shore News, that the fault (i.e., whether the columns breach the B.C. Human Rights Code) and Constitutional issues be separated. In February, l999 the Tribunal upheld Mr. Abrams’ complaints against four columns written by Doug Collins and published by the North Shore News. It ordered that a summary of its decision be published and that a fine be paid. The North Shore News subsequently complied with the order of the Tribunal, but Mr. Collins would not abide by that decision. He hired Mr. Zundel’s lawyer, Doug Christie, to attempt to overturn the decision on free speech grounds.
Mr. Collins attempted to circumvent the Tribunal by going directly to the British Columbia Supreme Court. The court rejected Mr. Collins’ manoeuvre and ordered that the matter be first determined by the Tribunal. However, before the Tribunal could render its decision, Mr. Collins died. Accordingly the League, the British Columbia Human Rights Commission and Attorney General asked that the Tribunal make no decision at all with regard to Mr. Collins’ constitutional rights. They argued that those rights had been rendered moot (i.e., purely theoretical) by his death.
In November, 2001, the Tribunal decided to nonetheless issue a decision on the constitutional challenge. It followed its earlier decision in a case initiated by the Canadian Jewish Congress against Mr. Collins and the North Shore News. It found that the British Columbia Human Rights Code infringes the free speech rights of Mr. Collins but is saved by section 1 of the Charter.
Mr. Christie has served notice in the British Columbia Supreme Court of his intention to judicially review the decision of the Tribunal. He intends to do so on behalf of Mr. Collins’ estate. The case will not likely be heard until the fall of 2002. The League for Human Rights will remain involved in responding to that Application.