Warman v. Kyburz

Warman v. Kyburz
Collection
Canadian Human Rights Tribunal
Date
2003-05-09
Neutral citation
2003 CHRT 18
Decision-maker(s)
Chotalia, Shirish P.; Mactavish, Anne L.; Roberts, Eve, Q.C.
Decision Content
Canadian Human Rights Tribunal Tribunal canadien des droits de la personne
BETWEEN:
RICHARD WARMAN
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
FRED KYBURZ
Respondent
REASONS FOR DECISION
2003 CHRT 18
2003/05/09
PANEL: Anne L. Mactavish, Chair
Shirish Chotalia, Member
Eve Roberts, Q.C., Member
TABLE OF CONTENTS
I. INTRODUCTION
II. FAILURE OF FRED KYBURZ TO APPEAR AT THE HEARING
III. THE ISSUES
IV. THE SECTION 13 COMPLAINT
A. Did Mr. Kyburz Communicate, or Cause to be Communicated, Repeatedly, the Messages Found at the Web Site in Issue?
B. Were These Messages Communicated in Whole or in Part by Means of a Telecommunications Undertaking Within the Legislative Authority of Parliament?
C. Is the Subject Matter of the Messages Likely to Expose a Person or Persons to Hatred or Contempt by Reason of the Fact That They are Identifiable on the Basis of a Prohibited Ground of Discrimination?
(i) What is the Subject Matter of the Messages Communicated by Mr. Kyburz?
(ii) Are These Messages Likely to Expose a Person or Persons to Hatred or Contempt by Reason of the Fact That They are Identifiable on the Basis of a Prohibited Ground of Discrimination?
C. Finding Regarding the Section 13 Complaint
V. THE SECTION 14.1 RETALIATION COMPLAINT
A. The Allegedly Retaliatory Messages
B. The Undisclosed Messages
C. Analysis of the Retaliation Complaint
VI. THE COPYRIGHT NOTICE
VII. REMEDY
A. The Section 13 Complaint
(i) Cease and Desist Order
(ii) Special Compensation
(iii) Interest
(iv) Penalty
B. The Section 14.1 Complaint
(i) Cease and Desist Order
(ii) Compensation for Pain and Suffering
(iii) Interest
(iv) Special Compensation
VIII. ORDER
I. INTRODUCTION [1] Richard Warman is a lawyer in Ottawa. On February 2, 2002, Mr. Warman filed a complaint with the Canadian Human Rights Commission against Fred Kyburz. Mr. Warman's complaint alleged that Mr. Kyburz communicated messages through his Internet web site, messages which expose identifiable groups to hatred or contempt, in violation of section 13 of the Canadian Human Rights Act. Mr. Warman's complaint was subsequently amended, with leave of the Tribunal, to include the allegation that Mr. Kyburz retaliated against Mr. Warman for having filed his human rights complaint, contrary to section 14.1 of the Act. This retaliation is alleged to have occurred through the use of Mr. Kyburz' e-mail account and web forum.
II. FAILURE OF FRED KYBURZ TO APPEAR AT THE HEARING [2] Mr. Kyburz did not appear at the hearing into Mr. Warman's complaint, nor did anyone acting for Mr. Kyburz appear on his behalf. The record discloses that Mr. Kyburz was personally served with information relating to the complaint. The documents served upon Mr. Kyburz included the Notice of Hearing, which indicated the dates and location of the hearing. Shortly after this material was served on Mr. Kyburz, the documents were returned to the Tribunal, with the notation returned for fraud and lack of jurisdiction written across the top page, followed by what appears to be Mr. Kyburz' signature.(1) Mr. Kyburz also sent the Tribunal a document entitled Copyright Notice, relating to the name Ernst-Friedrich Kyburz.
[3] The Tribunal is satisfied that Mr. Kyburz had notice of Mr. Warman's complaint and of the hearing in this matter. This finding is confirmed by the material downloaded from Mr. Kyburz' web forum, which makes it abundantly clear that Mr. Kyburz was aware of the hearing, and elected not to participate in the process.
III. THE ISSUES [4] Insofar as Mr. Warman's section 13 complaint is concerned, there are three issues that must be considered in determining whether the complaint has been made out:(2)
Did Mr. Kyburz communicate, or cause to be communicated, repeatedly, the messages found at the web site in issue? Were these messages communicated in whole or in part by means of a telecommunications undertaking within the legislative authority of Parliament? and Is the subject matter of the messages likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination?
[5] The Tribunal must also determine whether Mr. Kyburz retaliated or threatened retaliation against Mr. Warman for having filed his original section 13 complaint with the Canadian Human Rights Commission, contrary to the provisions of section 14.1 of the Canadian Human Rights Act.
[6] In the event that either or both aspects of the complaint are substantiated, the issue of the appropriate remedy will also have to be addressed.
IV. THE SECTION 13 COMPLAINT A. Did Mr. Kyburz Communicate, or Cause to be Communicated, Repeatedly, the Messages Found at the Web Site in Issue? [7] Mr. Warman's section 13 complaint relates to a web site located at the www.patriotsonguard.org web address. During his testimony, Mr. Warman identified numerous documents that he had downloaded from this site. These consist of a copy of the site's home page, as well as numerous Daily Information Pages (or DIPs). The home page describes the mission of Patriots on Guard, and states that the web page is presented by Fred Kyburz of Coleman, Alberta. Each DIP starts with a welcoming message, which includes a solicitation to subscribe to a monthly Patriots on Guard newsletter. Subscription fees are to be sent to Fred Kyburz, General Delivery, Blairmore Post Office, Blairmore, Alberta.
[8] Mr. Warman testified that he performed a search at the www.register.com web site, which, he explained, will provide the name of the registrant of a particular web address. The results of that search disclose that the registered owner of the www.patriotsonguard.org web site was Fred Kyburz, General Delivery, Blairmore Post Office, Blairmore, Alberta.
[9] Based upon the evidence before us, the Tribunal finds that Fred Kyburz controlled the www.patriotsonguard.org web site. The Tribunal is further satisfied that Mr. Kyburz caused the materials found on the site to be communicated. The fact that a web site is a somewhat passive medium, requiring the reader to take positive steps in order to access the posted material does not detract from the fact that, in up-loading the material to the web site, Mr. Kyburz communicated the material in issue. (3)
[10] The final matter to be considered is the element of repetition. The extent to which these messages were disseminated is a testament to the effectiveness of the Internet as a communications tool. The Patriots on Guard web site has a visitor counter. As of the time when Mr. Warman downloaded the page on September 10, 2001, 61,370 visitors had accessed the Patriots on Guard site.
[11] We are therefore satisfied that Mr. Kyburz communicated, or caused to be communicated, repeatedly, the messages found at the web site in issue.
B. Were These Messages Communicated in Whole or in Part by Means of a Telecommunications Undertaking Within the Legislative Authority of Parliament? [12] The messages which form the subject matter of Mr. Warman's section 13 complaint are those that appear on the Patriots on Guard web site. The last such message is dated December 21, 2001, and appears to have been downloaded by Mr. Warman that same day.
[13] As will be explained in greater detail further on in this decision, Mr. Warman complained about the content of the Patriots on Guard web site to Mr. Kyburz' Internet service provider, causing the service provider to withdraw service. Mr. Warman testified that the Patriots on Guard web site was shut down permanently some time in late December of 2001 or early January of 2002.
[14] It is not entirely clear which version of section 13 governs the Patriots on Guard web site. The Canadian Human Rights Act, as it was originally enacted, did not explicitly deal with Internet communications. This is not surprising, in that section 13 was originally enacted in 1977, well before the Internet came into our lives on a regular basis. As part of the changes to Canadian law effected by the proclamation of the Anti-Terrorism Act (4) on December 24, 2001, the Canadian Human Rights Act was amended to add the following provision to subsection 13(2):
For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication ...
[15] Ultimately, however, it does not matter whether any communication by Mr. Kyburz took place after the amendments to the legislation(5). The earlier version of section 13 has been found to encompass Internet communications in Citron et al. v. Zündel(6), and we adopt the reasoning of the Tribunal in that case.
C. Is the Subject Matter of the Messages Likely to Expose a Person or Persons to Hatred or Contempt by Reason of the Fact That They are Identifiable on the Basis of a Prohibited Ground of Discrimination? (i) What is the Subject Matter of the Messages Communicated by Mr. Kyburz? [16] In order to put the messages in issue into context, it is helpful to review the self-described mission of Patriots on Guard. According to the web site's home page, Patriots on Guard: ... is an organization dedicated to alerting the public about travesties against people's rights and freedoms, specifically by the courts and law enforcement agencies in Canada, and worldwide. This is done through the use of the DIPs. Most of the DIPs consist of copies of articles obtained from other sources, followed by an editorial comment. These editorial comments are frequently written in the first person, and appear to be the work of Mr. Kyburz.
[17] The focus of many of the early DIPS is on the supposed misdeeds of Ashkenazi Jews.(7) For example, the October 22, 2000 DIP contains several articles from what appears to be a Syrian news web site, each of which deals with aggression and terrorist acts allegedly committed by the State of Israel. These articles are followed by a commentary by Mr. Kyburz, wherein he explains his understanding of the difference between what he calls blood Jews or Sephardic Jews, and Ashkenazi Jews. Ashkenazi Jews, who Mr. Kyburz says comprise about 90% of the world's Jewish population, are not real Jews, but chose Judaism as a faith sometime in the 13th century.
[18] Mr. Kyburz states that he is not an anti-Semite, but rather is writing in order to clarify misunderstandings some people have about Jews. He goes on to say:
I am not against Jews. I am against some of the practices of these Ashkenazi Jews. They are the ones who propagate all the violence. They are the ones who are the driving force behind the United Nations. They are the designers of our present usurious money system that brings so much hardships [sic] and destruction. They are the ones in control of the mainstream media disseminating lies and misinformation. They are the ones who are in control of the filth in the movie industry. Communism, terrorism, war and Ashkenazi Jew are synonymous.
Mr. Kyburz further states:
Again I want to repeat that there are decent Jews, even Ashkenazi Jews. We have to be careful not to attack the Jews but their nefarious actions, and to expose the particular individuals who commit such nefarious actions. We also have to go after their mindless lackeys, the people in government who don't think twice to implement their murderous plans.
[19] A similar sentiment is expressed in the October 24, 2000 DIP. Commenting on an article entitled The 'English' Jew behind the foundation of Israel, Mr. Kyburz writes Isn't it amazing that war is always traced back to Ashkenazis who are falsely called Jews. Wherever they are involved deceit, treachery and murder run rampant.
[20] On October 25, 2000, Mr. Kyburz published an article written by William Pierce, entitled There will be Hell to pay. This is a lengthy article - one quite remarkable in the level of vitriol that it directs at Jews. The article deals with a number of issues, including the White-slave trade supposedly operated by Jews. Pierce states that the White-slave business flourishes in Israel because in that country slavery is not illegal, as long as the slaves aren't Jews. White-slavery is, in fact, sanctioned by the Jewish religion.
[21] Pierce also discusses Jewish involvement in child pornography, referring to the break-up of a child pornography ring in Moscow, which ring was allegedly run by three Jews. He describes the activities of the pornographers in the following terms:
Child pornography is an almost unimaginably filthy business. I'm not talking about videos of well-developed 15- or 16-year-old girls having sex. I'm talking about things so perverse and sickening that most Americans can't imagine them. I'm talking about men being filmed having sex with two- and three-year-old girls. I'm talking about small children - White children - being sexually tortured and raped to death in front of the camera for the titillation of the sick freaks who are sexually excited by such horrors.
[22] As to the 'sick freaks', that is, the consumers of the child pornography, Pierce states that The freaks, I am sorry to say are not all Jews, although Jews are disproportionately represented among them.
[23] Pierce goes on to explain the fact that there was no coverage of these events in the American media, as a result of Jewish control over the media.
[24] What is to be done about the people engaged in these pornographic activities? Pierce states that [his] view is that such people should simply be killed on the spot whenever and wherever they are found. Having previously identified Jews as being in control of the media, he goes on to say: More than that, the people who promote and encourage this extreme individualist mind-set through their control of the media should be exterminated root and branch as a class.
[25] Pierce does not, however, limit his comments to the killing of Jews engaged in child pornography and media control, but actually suggests that the elimination of all of the Jews in Russia would be justified:
The Jews bled Russia dry with 70 years of Marxist rule and murdered tens of millions of Russians - the best Russians - in the communist slave labour camps or in the basement of the secret police headquarters or beside the shooting pits in forests all over Russia and Ukraine; they have forced thousands of the prettiest young Russian women into prostitution and slavery after the fall of communism; and now they kidnap Russian children and rape them to death in front of the camera in order to make child-porn films for rich perverts in the West. The Jews are lucky they still control most of the television and other mass media in Russia - because if the Russian people ever are fully awakened to what the Jews are still doing to them, they will rise up and kill every Jew in Russia - every Jew - and they will be fully justified in doing so.
[26] While acknowledging that not all Jews are engaged in child pornography, Pierce posits that all Jews should be held to account for these horrible atrocities, as ... the ones who don't run the child-porn business cover for the ones who do.
[27] While it does not appear that Fred Kyburz was the author of this article, section 13 of the Act does not require authorship. The discriminatory practice is made out when a respondent communicates matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination, whether or not the respondent wrote the material himself.
[28] As with the previous DIPs, Mr. Kyburz offers his own commentary regarding the article he published on his web site. What does he have to say about the Pierce article? He says:
I would like to mention that the Jews who engage in these atrocities are not 'real' Jews. They are the Ashkenazi Jews which [sic] took the Jewish faith for political reasons as we have seen in the previous DIP. I will refer to them in the future simply as Ashkenazis. They are frauds. They are the ones who brought communism into being. They are the ones concocting the many ways of sickening people throughout the world. They are the ones who created the usurious money system in order to bleed us dry. They are the ones who are in control of WHO. They are the ones who push the vaccines to make us sick and dependant on their pharmaceutical corporations. They are the ones controlling the United Nations. Is it any surprise that the United Nations is a murderous outfit? They are the ones dictating our governments."
Mr. Kyburz concludes his commentary with the following statement:
* Warning *
If the good Jews do not denounce the bad Jews (Ashkenazis),
they share the guilt!
[29] Commenting on televised comments made by a former CSIS agent with respect to groups such as Patriots on Guard, Mr. Kyburz' November 9, 2000 DIP says:
First I will tell you that you are very, very insensitive to call the murderers, child molesters, terrorists and pedophiles Jews. They are not Jews, yet they call themselves Jews. They are the Ashkenazis. Are they the seed of Satan? I don't know. I know that it would be impossible for the spawn of Satan to commit worse crimes than these characters commit..."
[30] The notion of Ashkenazi Jews as frauds is reinforced in Mr. Kyburz' November 17, 2000 DIP, which contains an extract of a book entitled Truth and Justice versus Lies and Hatred. This book extract questions the extent of the Holocaust, suggesting that somewhere in the vicinity of 2-300,000 Jews actually perished during the Second World War, rather than the oft-cited figure of six million deaths. To some extent, the writer suggests, the Jews were the authors of their own misfortune:
The anti-Jewish - falsely dubbed as anti-Semitic stipulations of the National Socialist programs were, in fact, a slap in the face for Jews who were loyal to the German state. The Zionist Movement which operates throughout the world, took these measures as a crucial back-up in their efforts to attain their own goals. That is why Zionist [sic] stoked the fires of confrontation between the Reich Government and the Jews internationally. That is something that we are not supposed to know today. The Zionists were convinced that only if their co-religionists were segregated in their host countries would they be interested in settling Palestine. They even welcomed the Nuremberg Laws because they put wind into the sails of Zionist aspirations.
Mr. Kyburz states that he is publishing this excerpt ... to unveil part of the truth regarding the 'Holocaust'.
[31] In his November 18, 2000 DIP, Mr. Kyburz follows an article critical of Israeli actions against the Palestinians during the most recent Intifada with the statement that:
The Ashkenazis are in their element. Destruction of property and life is their great ability. That's what they do best. They practize [sic] that ability where ever and whenever they find an opportunity. They have done it throughout the centuries.
[32] Mr. Kyburz' comments in his December 18, 2000 DIP mark the beginning of a shift in the focus of his attentions. Zionist Jews are now equated with Ashkenazi Jews. According to Mr. Kyburz, the Zionist Jews' agenda should also provoke consternation in the reader:
Now folks, the Khazars(8) (Zionist Jews) which [sic] are in control and create the wars for Israel are also in control of the NWO [New World Order(9)] Can you imagine the fate which will await you once these people are in total control? Remember, Stalin was one of them. He killed tens of millions of his own people. Some estimates go as high as a hundred million. These depraved characters have not become more civilized in the meantime. Either they are being stopped or we will have to experience the wrath of their depraved and twisted minds. I, for one, am not too excited to become one of their victims. How about you?
The March 25, 2001 DIP refers back to the October 25, 2000 DIP, noting that it:
... shows the real character of the Zionist Jews. Their speciality is child abductions, child pornography, child molestation, slavery and murder. Yes, that's the type in our courts, in the Universities, in governments, in the police, in the medical profession specializing in abortion, everywhere they could have a chance to destroy life.
[33] Subsequent DIPs describe Zionist and/or Ashkenazi Jews as the most ruthless terrorists in the world, who do not respect the rights, freedoms or lives of others(10), a criminal and murderous group of thugs, who are sub-human and demented (11), people who will kill a great proportion of the world's population unless they are stopped.(12)
[34] Mr. Kyburz' comments are not always limited to Zionist or Ashkenazi Jews but are, on occasion, directed at Jews as a whole. For example, his December 21, 2000 DIP states that The Jews have inflicted an incredible amount of harm throughout the world over centuries. He goes on to refer specifically to Zionist Jews, stating that they will never change their ways because:
...being frauds, criminals, war mongers, pedophiles, anti-life and full of hate is part of them ... It is their nature. They will not and cannot change. If we do not want them to destroy our civilization, our way of life, our rights and freedoms we should make sure that they have no part in the decision making. This means that they will not be allowed in any government institution of any kind.
[35] Richard Warman testified that in March of 2001, he became aware of the Patriots on Guard web site, through his involvement in human rights work. He contacted Mr. Kyburz' Internet service provider, alerting it to the nature of the content on the site. As a result, service to the site was cut off, and the site was shut down. According to Mr. Warman, the Patriots on Guard web site was not accessible for several days in April of 2001, although it was back up within a couple of days, through a different service provider.
[36] Mr. Warman's efforts to shut down the web site did not go unnoticed by Mr. Kyburz. On April 7, 2001, an e-mail was sent to Mr. Warman from someone identifying himself as Fred Kyburz, using the [email protected] e-mail address. The circumstances surrounding the sending of the e-mail, together with its content establish, on a balance of probabilities, that it was sent by Mr. Kyburz. The correspondence, which was copied to dozens of other recipients, can best be described as a diatribe against Mr. Warman for having caused the Patriots on Guard web site to shut down.
[37] In reviewing Mr. Kyburz' message to Mr. Warman, it is apparent that Mr. Kyburz assumed that Mr. Warman was himself Jewish. Indeed, much of his venom is directed at Mr. Warman and his Zionist Jewish brethren :
You got the nerve to call me an 'antisemite' [sic]! I am NOT an anti-Semite - unlike yourself! I am anti-vermin, anti-crime, anti-child abuse, anti-child pornography, anti-Zionist propaganda.
You are an anti-Semite since your ilk have the blood of thousands of Jews on your hands as well as the blood of millions of white people. You are anti-Semite, anti-white and anti-right.... I have warned you idiots of my intent to expose your communistic Zionist agenda. Now you have given me good reason to make good on my promise. You will see much of your ilk's atrocities exposed. It will show who the TRUE anti-Semites are.
You call my exposure of your ilk's devious and criminal actions 'hatred of an identifiable group (ie. in this case Jewish people).' It's not hatred on my part, it is unspeakable hatred by your Zionist brethren's insidious and murderous actions against innocent people (ie. in this case white children). I will write about the possible motives of your Zionist Jewish brethren in the near future. You can holler and scream ANTI-SEMITE as loud as you want, the louder the better. The louder you shout the more I will expose your incredibly devious intentions. So go ahead. I am ready for battle.
[38] Mr. Kyburz then began to include regular references to Mr. Warman in his DIPs. For example, in the August 5, 2001 DIP, Mr. Kyburz stated:
Remember that these Jews are the Zionist Jews, mostly Ashkenazi Jews - all of them hard core communists. They are also the ones in control of the media everywhere. They are as well in control of Hollywood. Is it any surprise that the news of the media is twisted? Is it any surprise that nothing but scum and stench comes out of Hollywood?
Richard Warman ... [here Mr. Kyburz names other individuals who have incurred his wrath] ... am I an anti-Semite by bringing the cold truth to light about these criminal and murderous minds you so fervently support and protect?
[39] The December 15, 2001 DIP refers to Mr. Warman's effort to shut down Mr. Kyburz' web site, specifically mentioning Mr. Warman by name. The DIP goes on to say:
We have to stop these low lives for what they are and their incredible atrocities. We can only stop their murderous actions by full exposure. It is hard, if not impossible, for a normal individual to understand how anyone could be as evil as they are. The fact is, that we better learn before they are poisoning us with their proposed vaccinations and other medical poisons.
[40] In his December 18, 2001 DIP, Mr. Kyburz refers to Mr. Warman as a wretched character, saying that he is a willing flunkey of the Zionist/communist Israeli government. Mr. Kyburz subsequently refers people like Mr. Warman as sub-human criminal minds who ... do not shy away from any crime in order to reach their goal of complete world domination.
[41] The final reference to Richard Warman in the Patriots on Guard web site is contained in the December 20, 2001 DIP. Following his observation that The Jews (Zionists) are as evil as they have always been. War is their game. Profits from war is [sic] their aim., Mr. Kyburz goes on to say:
Richard Warman, if you can prove me wrong speak up. Write me an e-mail and make your objections known. Don't be a jerk or a coward. Sign your name to your e-mail. And don't try to shut down my web site again because you object to my straight forward talk. If you object to my telling the truth then change your ways and get your fellow Zionist frauds to change. I know to change your characters is a virtual impossibility. To be underhanded, dishonest and a fraud is your nature and your fellow Zionist brethren's nature.
[42] It was shortly after this message was posted on the Web that the Patriots on Guard web site was shut down for good. It is unclear from the evidence whether this was as a result of Mr. Warman's efforts.
(ii) Are These Messages Likely to Expose a Person or Persons to Hatred or Contempt by Reason of the Fact That They are Identifiable on the Basis of a Prohibited Ground of Discrimination? [43] In considering this question, the Tribunal was aided by the testimony of Dr. Karen Mock, a Psychologist who was qualified as an expert in discrimination, anti-Semitism, racism and hate material. In this case, there was nothing subtle or nuanced about the material contained on the web site, which was clearly hateful on its face. Dr. Mock's testimony was, however, of assistance in identifying some of the traditional anti-Semitic themes referenced in the material, such as the concept of 'blood libel', the Jews' alleged goal of world domination, and their ostensible control of various institutions.(13)
[44] The terms hatred and contempt have been judicially considered in previous section 13 cases. In Canada (Human Rights Commission) v. Taylor (14), the Supreme Court of Canada cited with approval the definitions of hatred and contempt utilized by the Tribunal in Nealy v. Johnston (15). In Nealy, the Tribunal said:
With hatred the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one hates another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of looking down on another or others. It is quite possible to hate someone who one feels is superior to one in intelligence, wealth, or power. None of the synonyms used in the dictionary definition for hatred give any clues to the motivation for the ill will. Contempt is by contrast a term which suggests a mental process of looking down upon or treating as inferior the object of one's feelings.
[45] The Tribunal in Nealy also considered the meaning of the word expose as it is used in section 13. Citing the original Tribunal decision in Taylor, the Nealy Tribunal said:
"Expose is an unusual word to find in legislation to control hate propaganda. More frequently, as in the Broadcasting Act Regulations, Post Office Act provisions and in the various related sections of the Criminal Code, the reference is to matter which is abusive or offensive, or to statements which serve to incite or promote hatred.
"Incite means to stir up; promote means to support actively. Expose is a more passive word, which seems to indicate that an active effort or intent on the part of the communicator or a violent reaction on the part of the recipient are not envisaged. To expose to hatred also indicates a more subtle and indirect type of communication than vulgar abuse or overtly offensive language. Expose means: to leave a person unprotected; to leave without shelter or defense; to lay open (to danger, ridicule, censure etc.). In other words, if one is creating the right conditions for hatred to flourish, leaving the identifiable group open or vulnerable to ill-feelings or hostility, if one is putting them at risk of being hated, in a situation where hatred or contempt are inevitable, one falls within the compass of section 13(1) of the Human Rights Act.
[46] In the Tribunal's view, there can be no doubt that the messages contained on the Patriots on Guard web site are likely to expose people of the Jewish faith to both hatred and contempt. Having singled out Ashkenazi Jews for particular criticism, Mr. Kyburz has discriminated against Jews of European ancestry on the basis of both their religion as well as their national or ethnic origin.
[47] Mr. Kyburz does not, however, limit his comments to Jews of European ancestry. In finding that the messages expose Jews generally to hatred and contempt, and not just Ashkenazi Jews, the Tribunal notes that while much of Mr. Kyburz' attention is focused specifically on Ashkenazi Jews(16), some of his commentary addresses the supposed evil nature and mis-deeds of Jews as a whole. Mr. Kyburz further suggests that non-Ashkenazi Jews are complicit in the alleged evil activities of the Ashkenazi Jews. A number of the articles published by Mr. Kyburz on his web site draw no distinction between Ashkenazi Jews and Jews of non-European origin.
[48] When read in context, the messages on the Patriots on Guard web site tell the reader that Jewish people are innately devious, treacherous, and murderous. Not only do they want to kidnap, corrupt, and kill white children, their ultimate goal is to take over the world. Such messages can only serve to foster hatred against the Jewish people. Of even greater concern are the messages, notably the Pierce article, that openly advocate the extermination of the Jewish people.
[49] Further, Mr. Kyburz' use of terms such as sub-human, scum, vermin and low-lives to describe Jews could most certainly lead some readers to view Jews as inferior beings, causing them to hold Jewish people in contempt. As Dr. Mock testified, this tactic of the dehumanization of the Jewish people was common in Nazi propaganda. By making Jews appear as something less than human, Dr. Mock explained, it became easier to kill them.
[50] The persuasive effect of these messages is enhanced by Mr. Kyburz' use of what Dr. Mock described as a pseudo-academic approach, exemplified by his references to the noted historian David Irving and the truth-seeking Ernst Zundel. A further example of this technique are the references to articles published by groups such as the Institute for Historical Review, an organization committed to debunking the 'myth' of the Holocaust.
[51] As regards Mr. Warman's allegation that Mr. Kyburz's messages discriminate against Jews on the basis of race, we note that Dr. Mock testified that Jews are not members of a race, but rather share a common religion. We accept Dr. Mock's testimony that Mr. Kyburz has, nevertheless, attempted to 'racialize' Jews, with his suggestion that their various alleged character flaws are inherited or innate. This is evidenced by his frequent comments about people of their ilk, as well as by references to such things as the real character of the Zionist Jews. This tactic is perhaps epitomized by the last DIP, with its comment that Zionist Jews will never change, because ...being frauds, criminals, war mongers, pedophiles, anti-life and full of hate is part of them ... It is their nature. They will not and cannot change.
[52] The fact that Jews do not constitute a race does not operate to defeat this aspect of Mr. Warman's complaint. Human rights jurisprudence has interpreted prohibitions against discrimination on the basis of a proscribed ground of discrimination to include the prohibition of discrimination based on perceived membership in the protected group.(17) The Tribunal therefore finds that the messages contained on the Patriots on Guard web site are likely to expose people of the Jewish faith to hatred and contempt on the basis of their perceived race, as well as their religion and, in the case of Ashkenazi Jews, their national or ethnic origin.
D. Finding Regarding the Section 13 Complaint [53] As was noted in one of the articles posted on the Patriots on Guard web site, international law recognizes the right of individuals to freedom of opinion and expression. For example, Article 19 of the Universal Declaration of Human Rights(18) provides that such right ... includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media ....
[54] While the right to hold and express one's opinions is a cornerstone of a free and democratic society, such a right is not unlimited. In some situations, the protection of society mandates limits on what individuals may say. For this reason, it is unlawful to shout Fire! in a crowded theatre when no fire exists, to phone in a bomb threat, or to threaten to kill another person.
[55] In the Taylor case, the Supreme Court of Canada had occasion to scrutinize the reach of section 13 of the Canadian Human Rights Act in light of international law principles, as well as the Charter guarantee of freedom of opinion and expression.(19) The Court concluded that while section 13 infringed the right to freedom of opinion and expression, this infringement was justified in light of international commitments to eradicate hate propaganda, and Canada's commitment to the values of equality and multiculturalism.
[56] Having found that Fred Kyburz did communicate, repeatedly, by means of the facilities of a telecommunications undertaking within the legislative authority of Parliament, matter that is likely to expose people of the Jewish faith to hatred or contempt, Mr. Warman's section 13 complaint is substantiated.
V. THE SECTION 14.1 RETALIATION COMPLAINT A. The Allegedly Retaliatory Messages [57] After the Patriots on Guard web site was shut down, a Patriots on Guard Internet web forum was established. Mr. Warman explained that a web forum is a domain where people can post messages and view the messages posted by others. The Patriots on Guard web forum was an open forum, which means that anyone could sign up to participate in the forum's discussions. A member could also choose to have any new posting on the site automatically e-mailed to him or her as soon as the material was posted. Mr. Warman signed up to join the web forum, using a false name, and, as a result, was able to access the information posted there.
[58] The content of the material posted on the Patriots on Guard web forum is similar in nature to that which appeared on the Patriots on Guard web site, and includes messages signed by Fred Kyburz, sent through the [email protected] e-mail address. The timing of the establishment of the web forum, together with the name of the forum and the subject matter of the debate in the material posted, establishes that the web forum was created by Mr. Kyburz. This finding is confirmed by the exchange of e-mails appearing at Tab 28 of Exhibit HR-1, where Mr. Kyburz refers to my web site http://www.patriotsonguard.org.
[59] Further, we find that numerous postings appearing in the web forum originate from Mr. Kyburz. In coming to this conclusion, we note that these messages are signed by Mr. Kyburz, either as 'Fred' or 'Fred Kyburz'. In many cases, the context as well as the content of the messages make it clear that they came from Mr. Kyburz.
[60] On February 5, 2002, Richard Warman filed his original complaint with the Canadian Human Rights Commission. On April 26, 2002, Mr. Kyburz posted an exchange of e-mails between himself and a producer of the CTV television show W-5 regarding a television program on the 'de-tax' movement. (20) In the initial e-mails, the producer asks Mr. Kyburz if he would like to participate in the show. Mr. Kyburz declines. After the show was broadcast, Mr. Kyburz sent the producer a lengthy e-mail expressing his disgust with the broadcast. In the course of his comments, Mr. Kyburz stated:
Now you can go and complain to the Canadian Human Rights Commission about my anti-semitism [sic] just as did your fellow Zionist Richard Warman, a valued employee of the Federal Court of Canada and the Department of Justice - a great crowd! The CHRC is an organization that has to deny truth as a defense. That's how low these people have sunk. They have to deny truth in order to protect their criminal behaviour. They are so incredibly demented that they believe their own twisted reasoning. Richard Warman must be your treasured ally ...
[61] Mr. Kyburz goes on to reproduce a copy of a letter that he says he sent to the Honourable John Richard, the Chief Justice of the Federal Court of Canada, where Mr. Warman was formerly employed. After referring to Mr. Warman's efforts to shut down his web site, and to Mr. Warman's complaint to the Canadian Human Rights Commission, Mr. Kyburz says:
I do discuss a wide range of topics on my web site. Some of the topics include slavery, murder, terrorist activities, pedophilia, war, taxes, inalienable rights of individuals, child prostitution, child pornography, etc. I have posted other people's opinions, newspaper articles, as well as my own conclusions.
Some of the articles discuss actions of Jews implicated in child pornography, child prostitution, slavery, murder, genocide, etc. These are well-publicized stories. Warman, a Jew, is not happy to have his fellow Jews and their fiendish activities exposed, obviously his motive for his complaint to the Canadian Human Rights Commission. This means that he is in full support of such nefarious acts as child prostitution, child pornography, murder, genocide, slavery and wholesale slaughter of innocent people. No individual with a smidgen of a conscience will engage in, or be in support of, such fiendish and sub-human activities as mentioned above. Mr. Warman obviously has no conscience....
Now Sir, I am asking you herewith to:
1) Dismiss Mr. Richard Warman immediately from his present government position without severance pay. He is not allowed anytime in the future to hold another government position or an advisory position to any government body or government employee. If he is not dismissed by April 12, 2002, withou