December 10, 1997

Good Morning from the Zundelsite:

"Mr. Christie's argument is many-faceted, and includes assertions that there is no territorial jurisdiction since the documents on the internet do not originate in Canada, the documents on the internet are not communicated telephonically within the definition of section 13, section 13 is ultra vires, there was a reasonable apprehension of bias by the Canadian Human Rights Commission against Mr. Zundel, and, finally, there was evidence of bad faith on the part of the complainants, and so the complaints are vexatious.

(...)

We conclude on the material before the Federal Court, that there are serious questions to be tried. Some of the issues are unique, including the scope and application of section 13 of the Act to the issues that emerge from the complaints.

(...)

(T)he balance of convenience strongly favors an expeditious adjudication upon the issues, in the absence of which the likely lengthy delay occasioned by judicial review proceedings would be unfair and harmful to the complainants.

(...)

(P)roceedings under the Human Rights Act are not in the nature of private disputes, but have an effect on the ability to achieve the broader social goals inherent in Human Rights legislation."

Note here that ALL concern goes to the Complainants, namely the Holocaust Promotion Lobby. Not one word was said on behalf of the rights of Mr. Zundel, and not the smallest concession on his behalf was made.

Thereupon defence attorney Doug Christie summarized his point of view for the record:

"These are not cases or circumstances uniquely known to Jews, it's got really nothing to do with being a Jew or non-Jew. These questions affect far more than Mr. Zundel, or the question of Jews at all.

It affects the implications of section 13.1, but not just for Jews or Gentiles or any group, so the status of my learned friend and his clients, vis-a-vis the particular message, is really quite inconsequential in relation to the issues you'll be deciding."

(...)

"My learned friend said if the Canadian community is so thick-headed they cannot see that Zundel is not representative of the whole German society, that we shouldn't assume that to be the case.

But are we to assume on the balance of convenience that the Canadian community is so thick-headed they cannot tolerate the existence of the Zundelsite in another country?

(...)

My learned friend said that Mr. Zundel had been found guilty before by a jury. Well, what is the implication of being found guilty by a jury in a case of a charge that never ought to have been brought?


(...)

(The intervenors') expertise, which I have been informed of by their application, relates specifically to issues that are not jurisdictional or constitutional in nature.

(...)

I have seen no applicaant claim specific expertise in any particular constitutional or jurisdictional question.

(...)

(T)here is the consideration of a totally new medium of communication, which extends the jurisdiction of the section beyond anything previously considered . . . (it) now involves the consideration of whether this country has the right and duty to supervise the communication of the whole world community.

And I have strong reason to believe that if the Supreme Court of Canada at the time of Taylor was considering the internet and the right and power of this country to supervise all communications throughout the world that might speak about, as the facts of this case will demonstrate, a Canadian, they would have certainly other considerations as to whether this is a reasonable limit demonstrably justifiable in a free and democratic society.

So if you feel that my arguments are so frivolous, or so inconsequential and without merit, that you wish to proceed in spite of what I say is a serious issue to be tried and resolved before you get into the merits, my next request at least would be to allow me time to provide notice and to bring before this Tribunal the constitutional argument of new concerns about the . . .

". . . as the Supreme Court has said a number of times, their constitutional rulings cannot be without a factual foundation.
(...)

(T)he factual foundation for a constitutional argument must be considered before the Tribunal that hears the facts and, therefore, could have the opportunity to make consideration of whether this limit is demonstrably justifiable in a free and democratic society on the facts.

(...)

(I)n essence, I'm submitting that the law is entirely clear that the telecommunication systems of the internet are not telephonic in nature.

(...)

Now, there's another and perhaps more serious issue in relation to the factual matters. The issue is the activities of the Canadian Human Rights Commission themselves, because I'm speaking now before the Canadian Human Rights Tribunal, an impartial body, to consider the decision which was made to bring the matter to you.

I take the position - and of course, this is subject to argument - that it isn't automatic that you will hear a complaint at this stage because it has gone through the Human Rights Commission, and I don't take it as being decided - perhaps wrongly - that the prescriptions of the Canadian Human Rights Commission are the end of the matter.

If I could show you prima facie evidence of a reasonable apprehension of bias in the decision to bring the complaint before you, there is, in my submission, the option of consideration of that.

Now, I have brought the matter to the attention of the Federal Court, and on affidavit material am raising issues involving a decision itself, involving the activities of the Commission in pursuing the complaint, and actually referring also to the complainants themselves.


(...)

It's not necessary to suggest a reasonable apprehension of bias, that it must take place in the course of making a decision of a judicial or quasi-judicial nature.

It's simply necessary to show that on an un-objective standard, a reasonably informed person would come to the conclusion on the evidence before them that the body with the duty to be impartial probably was not."

Thought for the Day:

ADL advertisement showing the hall of a jail, captioned:

"There's A Place in America For Everyone - Including Those Who Act Out Their Hate."