Warman v. Winnicki

Warman v. Winnicki
Collection
Canadian Human Rights Tribunal
Date
2006-04-13
Neutral citation
2006 CHRT 20
File number(s)
T1021/0205
Decision-maker(s)
Jensen, Karen A.
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LAPERSONNE
RICHARD WARMAN
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
TOMASZ WINNICKI
Respondent
REASONS FOR DECISION
2006 CHRT 20 2006/04/13
MEMBER: Karen A. Jensen
I. THE COMPLAINTS
II. WHAT CIRCUMSTANCES GAVE RISE TO THESE COMPLAINTS?
III. WHAT QUESTIONS NEED TO BE ADDRESSED IN THIS CASE?
A. Question 1 - Is the Tribunal Permitted to Rule on Material That Was Not Included In the Original Complaint?
B. Question 2 - What are the sources of the material that allegedly violates s. 13(1)?
(i) The Northern Alliance Guestbook
(ii) The Winnicki Website
(iii) The Vanguard News Network
C. Question 3 - Did the Respondent repeatedly communicate the impugned messages from the above noted sources by means of the Internet?
(i) Who was the communicator of the impugned material?
(ii) Did the Respondent repeatedly communicate the allegedly discriminatory material?
D. Question 4 - Is the material likely to expose persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination?
(i) The Law
(ii) The Impugned Messages
E. Question 5 - Did the Respondent Retaliate or Threaten Retaliation Against the Complainant?
IV. REMEDIES
A. Retaliation - Section 14.1
(i) Cease and Desist Order
(ii) Compensation for Pain and Suffering
(iii) Special Compensation
(iv) Expenses Related to the Hearing
(v) Interest
B. Hate Messages - Section 13
(i) Cease and Desist Order
(ii) Section 54(1)(b) - Special Compensation
(iii) Penalty
I. THE COMPLAINTS [1] This is a decision regarding two complaints filed by Mr. Richard Warman against Mr. Tomasz Winnicki. The first complaint involves the alleged communication of hate messages contrary to s. 13(1) of the Canadian Human Rights Act (the Act). The second complaint involves allegations of retaliation or threatened retaliation contrary to s. 14.1 of the Act.
[2] I heard both complaints together in July and December, 2005. The Canadian Human Rights Commission (the Commission) participated fully in the hearing. The Complainant, who is a lawyer, represented himself. The Respondent represented himself for the first day of the hearing and thereafter was represented by counsel. The Respondent chose not to testify.
II. WHAT CIRCUMSTANCES GAVE RISE TO THESE COMPLAINTS? [3] The Complainant testified that, about 15 years ago, he became interested in the issue of hate speech. He began to monitor the activities of organized groups and individuals in Canada that he suspected were spreading hate messages.
[4] During the course of his monitoring activities, the Complainant became aware of material on the Internet that was apparently posted by the Respondent, Mr. Tomasz Winnicki. He testified that he thought the material violated s. 13(1), the hate message provision of the Canadian Human Rights Act, in that it was likely to expose people of the Jewish faith to hatred or contempt. As a result, on September 7, 2003, the Complainant filed a human rights complaint with the Canadian Human Rights Commission. He appended material that he downloaded from the Internet, which was allegedly communicated by the Respondent, to the s. 13(1) complaint.
[5] The Complainant testified that he subsequently became aware of other messages on the Internet which he believed were posted by the Respondent in retaliation against him for filing a human rights complaint. The Complainant then filed a retaliation complaint with the Canadian Human Rights Commission dated June 1, 2004 alleging that the Respondent had violated s. 14.1 of the Act. The Complainant appended the allegedly retaliatory messages to the s. 14.1 complaint.
[6] The Canadian Human Rights Commission subsequently decided to refer both complaints to the Tribunal for further inquiry. After the Commission had referred the complaints to the Tribunal, the Complainant testified that he found additional material on the Internet that was allegedly posted by the Respondent. It was believed that this material was likely to expose people to hatred or contempt on the basis of race, national or ethnic origin and colour. As a result, on May 20, 2005, the Canadian Human Rights Commission requested leave from the Tribunal to amend the first complaint to include the additional grounds of race, national or ethnic origin and colour. The Respondent was served with the motion and the additional material that was found on the Internet.
[7] On July 11, 2005, I granted the Commission's request to amend the s.13(1) complaint on the basis that the substance of the original complaint was not altered by the addition of the new grounds; a new discriminatory practice was not being alleged. I also found that the Respondent had been given sufficient notice to enable him to properly defend himself against the amended complaint. Accordingly, the s. 13(1) complaint was amended to include the additional grounds and the new material was appended to the revised complaint.
[8] After the amendment was made but prior to the hearing, the Complainant testified that he found more material on the Internet that was allegedly posted by the Respondent. This material was disclosed to the Respondent before the hearing and it was alleged that the material was further evidence of the Respondent's ongoing violation of sections 13(1) and 14.1. (For ease of reference all of the material that was found on the Internet after the complaint was referred to the Tribunal, including the material that was appended to the amended complaint, will be referred to as the post-referral evidence)
[9] On July 27, 2005, the Commission filed a motion with the Federal Court requesting an interlocutory injunction against the Respondent pending a final decision by this Tribunal. The Federal Court granted the Commission's motion on October 4, 2005 and, as a result, from that date until the date of this decision, the Respondent was prevented from communicating, by means of the Internet, messages of the kind found in the material that was filed with the Federal Court (Canadian Human Rights Commission v. Winnicki 2005 FC 1493).
[10] Before this Tribunal, the Complainant and the Commission requested an order requiring the Respondent to cease and desist from communicating messages of the kind that were submitted with the complaints. They also sought compensation for the pain and suffering that the Complainant allegedly experienced as a result of the retaliation, in addition to special compensation and reimbursement for costs incurred by the Complainant to attend the hearing.
[11] The Respondent, through his counsel, admitted to having communicated the messages that were the subject of the original complaints filed on September 7, 2003 and June 1, 2004. The Respondent objected, however, to the consideration of any of the post-referral material by the Tribunal on the basis that it was not part of the original complaint. The Respondent denied that any of the material exposed members of an identifiable group to hatred or contempt. He also denied having retaliated against the Complainant for filing a human rights complaint against him. Finally, the Respondent disputed the appropriateness of the remedies requested by the Complainant and the Commission.
III. WHAT QUESTIONS NEED TO BE ADDRESSED IN THIS CASE? [12] I must address the following questions in this case:
Is the Tribunal permitted to rule on material that was not included in the original complaint? What are the sources of the material that allegedly violate s. 13(1)? Did the Respondent communicate the impugned messages repeatedly, by means of the Internet? Is the material likely to expose persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? Did the Respondent retaliate against the Complainant after he filed his complaint with the Canadian Human Rights Commission?
[13] For the reasons that follow, I have concluded that the Respondent willfully and repeatedly communicated messages via the Internet that are likely to expose persons of the Jewish faith, black race and other non-Caucasian races, and persons of African origin to hatred or contempt. I have also concluded that the Respondent willfully retaliated against the Complainant for filing a human rights complaint. As a result, I find that both complaints against the Respondent are substantiated.
A. Question 1 - Is the Tribunal Permitted to Rule on Material That Was Not Included In the Original Complaint? [14] Although the Respondent did not object when the Commission introduced the post-referral evidence during the hearing, at the close of the hearing the Respondent argued that the Tribunal could not consider this evidence since it essentially constituted the basis for new complaints which should have first been submitted to the Canadian Human Rights Commission.
[15] I disagree with this argument for a number of reasons. Firstly, the Respondent is essentially attempting to re-litigate the motion to amend the original s. 13(1) complaint. The motion to amend the s. 13(1) complaint was granted on the basis of the post-referral evidence that was filed in support of that motion. In deciding that an amendment to the original complaint was appropriate, the issue of whether that evidence constituted the basis for a new complaint was conclusively determined. As a result of that Ruling, excerpts of the post-referral evidence were incorporated into the particulars of the amended complaint. Therefore, it cannot now be argued that the evidence that was the basis for the amendment is, in fact, the basis of a new complaint. This would effectively constitute an attempt to re-argue the motion to amend the complaint. To do so would be an abuse of process and will not be permitted (Cremasco v. Canada Post Corporation 2002/09/30 - Ruling No. 1, at para. 77, aff'd 2004 FCA 363).
[16] Secondly, with regard to the second batch of post-referral evidence that was disclosed after the complaint was amended, I am also of the view that it may properly be considered by the Tribunal. The evidence does not disclose the basis for a new complaint or a new series of complaints, but rather goes to the issue of whether the Respondent was engaging in an ongoing violation of sections 14.1 and 13(1) of the Act. The amended s. 13(1) complaint specifically contemplates the possibility that additional evidence of the violation of s. 13(1) would occur by including the words and ongoing in the date of the alleged discriminatory conduct.
[17] In LeBlanc v. Canada Post Corporation (1992), 18 C.H.R.R. D/57, the Tribunal discussed a similar objection to the one raised by the Respondent in the present case. In that case, the Canadian Human Rights Commission indicated that it intended to lead evidence of other incidents of alleged discrimination which were not set out in the complaint form. Counsel for the Respondent objected. The Tribunal ruled that the evidence was admissible because the complaint form referred to incidents of discrimination that were ongoing and the evidence appeared to be the continuation of the complaint. Moreover, the Tribunal ruled that the Commission and the complainant are not necessarily restricted to the four corners of the complaint form. The essential question is whether it would be fair to admit the evidence. If there is no evidence of surprise and the Respondent is aware that the complaint relates to ongoing events, then it is difficult for the Respondent to argue prejudice.
[18] In the present case, there is no evidence that the Respondent was caught be surprise by the introduction of the evidence. It was disclosed to him prior to the hearing and, as stated above, the amended s. 13(1) complaint form indicated that the complaint related to ongoing events. Finally, the Commission's application to the Federal Court for an interlocutory injunction would have been a clear signal to the Respondent that the Commission was taking issue with the Respondent's continued communication of material that was allegedly in violation of s. 13(1).
[19] It was not indicated on the s. 14.1 complaint form that the complaint related to ongoing events. However, I find that in the context of the ongoing disclosure that was taking place prior to the hearing, and the motions that were being made before the Tribunal and the Federal Court, this is not significant. It would hardly have come as a surprise to the Respondent that any messages that were found on the Internet that could be construed as retaliatory might well be introduced as evidence at the hearing.
[20] The Respondent argued that he was deprived of an opportunity to engage in conciliation and to respond to the post-referral messages before the Canadian Human Rights Commission. This argument rings hollow. The post-referral messages are of the same nature as the material that was submitted to the Commission as part of the original complaints. The Respondent would have had the opportunity to engage in conciliation and to respond to the messages that were part of the original complaint. It is unlikely that the additional material would have made any difference to the conciliation and settlement efforts.
[21] The present case is very different from Canada (Attorney General) v. Canada (Canadian Human Rights Commission) (1991), F.T.R. 47 (Pitawanakwat) upon which the Respondent relies in support of his argument that the Tribunal does not have the jurisdiction to consider the post-referral evidence. The Pitawanakwat case dealt with the Commission's jurisdiction to refer an amended complaint to the Tribunal that included a new allegation of discrimination based on a different ground some four years after the original complaint had been signed. The case did not deal with the Tribunal's jurisdiction to accept post-referral evidence.
[22] Therefore, given that the evidence relates to the issue of the ongoing nature of the violations and the fact that the Respondent had adequate notice and an opportunity to address the post-referral evidence, I find that the Tribunal is entitled to consider the post-referral evidence.
B. Question 2 - What are the sources of the material that allegedly violates s. 13(1)? [23] The Complainant testified that there are essentially three sources of the impugned messages: The Northern Alliance Guestbook; the Respondent's own website; and the Vanguard News Network. The majority of the impugned messages were found in the VNN Forum. However, some were from the Northern Alliance Guestbook and some from the Respondent's own website.
(i) The Northern Alliance Guestbook [24] The Complainant testified that he viewed material on a website on the Internet called Northern Alliance. He downloaded the material that he believed was communicated by the Respondent and submitted it as an attachment to his original s. 13(1) complaint dated September 3, 2003. The Complainant testified that the Northern Alliance was a group based in London, Ontario that offered a Guestbook on the Internet where people could make on-line comments about various topics. The Guestbook consisted of a series of comments one after the other without any real structure to it. The banner across the top of the Guestbook reads:
Northern Alliance
The new voice of the Canadian majority
[25] There were two entries to the Northern Alliance Guestbook made by the Respondent that were submitted as part of the s. 13 complaint. The Complainant testified that, to the best of his knowledge, by the time of the hearing into this matter, the Northern Alliance Guestbook had been deleted.
(ii) The Winnicki Website [26] The Complainant testified that, while visiting the Northern Alliance Guestbook, he clicked on the link that was provided with the Respondent's comments and was taken to the following website address: WW3.sympatico.ca/tom.winnicki. On that website he found several graphic images together with statements such as WHITE REVOLUTION .... ITZ COMING .... AND ITZ GIGANTIC... Links to websites were also provided that claimed to provide unbiased history. The Complainant testified that he believed the material on the website found at WW3.sympatico.ca/tom.winnicki was communicated by the Respondent. He downloaded it on September 3, 2003 and appended it to his human rights complaint alleging that the communications violated s. 13(1) of the Act.
[27] The Complainant testified that, at the time that he filed his s. 13(1) complaint with the Canadian Human Rights Commission in September 2003, he raised concerns about the Repondent's website with Bell Sympatico. He was led to believe that Bell Sympatico ultimately shut down the WW3.sympatico.ca/tom.winnicki website.
(iii) The Vanguard News Network [28] The Complainant testified that he conducted an Internet search on the name Tom Winnicki. One of the results of that search led him to a website called the Vanguard News Network. The Complainant testified that to the best of his knowledge, the Vanguard News Network (VNN) was a website that was registered in the United States and was controlled by persons who lived in the United States. Among other things, the website provided news briefs from a neo-Nazi perspective. According to the Complainant, the website also provided a forum where people could discuss a number of issues.
[29] The Complainant testified that, once he had accessed the main page of the VNN, he was then able to choose from a number of options. One of these options was the VNN Forum. When he clicked on the VNN Forum icon, he was linked to another page on the website that presented him with another set of options, known as threads. According to the Complainant, threads are topics of discussion that are initiated by members of the VNN. Members of the Forum may post (or communicate) publicly accessible messages that follow one from the other within a given thread or topic of conversation. The term This Just In introduces a new thread, or topic of discussion. There are other threads that are listed within the categories in the Forum.
[30] According to the Complainant, becoming a member of the Forum was a relatively straightforward process that involved providing a valid e-mail address and registration information.
C. Question 3 - Did the Respondent repeatedly communicate the impugned messages from the above noted sources by means of the Internet? (i) Who was the communicator of the impugned material? [31] Through his counsel, the Respondent admitted that he communicated the messages which were included in the original complaints that were investigated by the Canadian Human Rights Commission and subsequently referred to the Tribunal. These messages included those found by the Complainant on the Northern Alliance website and on the Winnicki website, as well as some from the VNN Forum.
[32] It was unclear, however, whether the Respondent's admission that he communicated the impugned messages extended to the post-referral material. Therefore, I have reviewed this material and find, for the following reasons, that the Respondent was, in fact, the person who communicated the post-referral material that was filed as evidence during the hearing in this matter.
[33] In the messages that formed part of the original complaints, the Respondent alternated between the use of the pseudonym Thexder 3D and the name Tom Winnicki. When the pseudonym was used, it was accompanied by a robot symbol.
[34] The communicator of the post-referral messages refers to himself as Thexder 3D and Tomasz Winnicki. In one such message Tomasz Winnicki corrected a misspelling of his pseudonym stating:
It's Thexder not Thexter but that's of little importance. Use my real name Tomasz Winnicki from now on. Tomasz in Polish is the formal form for Tom, so you can also address me as that.
[35] Thus, the evidence demonstrates that the Respondent, who went by the names Tom Winnicki and Tomasz Winnicki, and used the pseudonym Thexder 3D together with a robot symbol, was the person who communicated the post-referral material.
(ii) Did the Respondent repeatedly communicate the allegedly discriminatory material? [36] In Schnell v. Machiavelli and Associates Emprize Inc., (2002), 43 C.H.R.R. D/453, the Tribunal held that the use of the word repeatedly in s. 13(1) suggests that s. 13(1) is aimed not at private communications with friends, but rather at a series of messages that form a larger-scale, public scheme for the dissemination of certain ideas or opinions, designed to gain converts from the public (Schnell, supra, at para. 129).
[37] The Mission Statement of the Vanguard News Network, which was entered into evidence during the hearing, states that the VNN is a group of disgusted and disaffected writers that have come together in order to reclaim the American mind from the Jews. Thus, it is apparent that the Respondent's communications in that Forum were part of a larger-scale scheme for the dissemination of opinions, designed to gain converts from the public.
[38] There was a difference of opinion between the Complainant and the witness for the Respondent, Mr. Paul Fromm, as to whether the messages on the VNN Forum were accessible to the public. The Complainant testified that all of the messages could be viewed by the public without being a member of the VNN Forum. Mr. Fromm, on the other hand, testified that some of the messages were not accessible to the public; one had to be a member to view some of the messages.
[39] Mr. Fromm's testimony in that regard was shaken on cross-examination. During the hearing, and using the Tribunal Registry Officer's computer, the Complainant led Mr. Fromm through the steps involved in accessing a number of postings within a thread from the VNN forum. Mr. Fromm admitted that during this demonstration, he was able to directly access the website with the URL of www.vnnforum.com and several pages within the Forum were viewed without the need to establish membership in the Forum. On the basis of this evidence, I find the Complainant's testimony regarding the public accessibility of the Respondent's postings to be more credible than that of Mr. Fromm. I also accept the Complainant's testimony that the messages on the VNN Forum remained accessible to the public at least until the first day of the hearing, which was August 8, 2005.
[40] Similarly, the evidence provided above regarding the Northern Alliance Guestbook and the Winnicki website indicates that the Respondent's communications on these websites did not constitute private communications among friends. They were posted for broader consumption and were accessible to the public (until they were shut down) through an Internet search engine or directly by typing the Internet address into a computer.
[41] Therefore, I find that the Respondent repeatedly communicated all of the impugned messages over the Internet.
D. Question 4 - Is the material likely to expose persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination? (i) The Law [42] In answering this question the Tribunal is guided by the definitions of the words hatred, contempt, expose and likely that have been provided in decisions of the Canadian Human Rights Tribunal, the Federal Court of Canada and the Supreme Court of Canada.
[43] In Canada (Human Rights Commission) v. Taylor [1990] 3 S.C.R. 892, the Supreme Court of Canada adopted the Tribunal's definition of hatred and contempt (Taylor, supra, at para. 60; Nealy v. Johnston (1989), 10 C.H.R.R. D/6450 at p. D/6469; Taylor and the Western Guard Party v. Canadian Human Rights Commission and Attorney General of Canada (1979), T.D. 1/79 (hereinafter referred to as the Tribunal's decision in Taylor). Hatred is defined as active dislike, detestation, enmity, ill-will and malevolence. It means, in effect, that one finds no redeeming qualities in the object of one's detestation. 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.
[44] Contempt, in contrast, does suggest a mental process of looking down upon or treating as inferior the object of one's feelings. This reflects the dictionary definition of despise, dishonour or disgrace (Taylor, supra, at para. 60)
[45] Expose means: to leave a person unprotected; to leave without shelter or defence; to lay open to danger, ridicule or censure. (the Tribunal's decision in Taylor, supra, at p. 29). In Taylor, the Tribunal held that expose is a more passive word than incite. This suggests that active effort or intent on the part of the communicator is not envisaged. Similarly, the use of the word expose in s. 13(1) suggests that a violent reaction on the part of the recipient of the message is not envisaged. In other words, the Tribunal stated, 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 then falls within the compass of s. 13(1) of the Human Rights Act (p.29).
[46] The Tribunal in Nealy v. Johnston stated that the use of the word likely in s. 13(1) means that it is not necessary that evidence be adduced to prove that any particular individual or group took the messages seriously and directed hatred or contempt toward others. Nor is it necessary to show that, in fact, anyone was so victimized. Unlike the other sections in the Act dealing with discrimination, s. 13(1) provides for liability where there is no proven or provable discriminatory impact (Nealy v. Johnston, supra, at para. 45697). The Tribunal alluded to the difficulty involved in determining how many people had received the message and to gauging the impact of the message on these people. This, in the Tribunal's view, justified the extension of liability under s. 13(1) to cases where there is no proven or provable actual discriminatory effect.
[47] The Respondent in this case took issue with the interpretation of s. 13(1) provided by the Tribunal in Nealy v. Johnston, arguing that the majority of the Supreme Court in Taylor did not endorse this interpretation. The Respondent based his argument on statements made by Dickson C.J., on behalf of the majority of the Supreme Court in that case. At paragraph 60, Dickson C.J. stated:
In my view, there is no conflict between providing a meaningful interpretation of s. 13(1) and protecting the s. 2(b) freedom of expression so long as the interpretation of the words hatred and contempt is fully informed by an awareness that Parliament's objective is to protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression. (emphasis added)
[48] The Respondent has interpreted this statement, and others made by the majority in Taylor regarding the importance of focusing on the effects of discrimination, to mean that s. 13(1) requires proof that the impugned material caused harm.
[49] I disagree with the Respondent's interpretation of the majority's decision in Taylor. Moreover, it does not accord with the wording of s. 13(1) of the Act. Section 13(1) makes it is a discriminatory practice to communicate messages that are likely to expose a person or persons to hatred or contempt. The provision does not state that it is a discriminatory practice to communicate messages that cause others to feel hatred or contempt toward members of the targeted group.
[50] As the majority in Taylor stated, hate messages, by their very nature, do cause harm in two significant ways. First, they undermine the dignity and self-worth of target group members and, secondly, they erode the tolerance and open-mindedness that must flourish in a multi-cultural society that is committed to the idea of equality. The statement was based on numerous studies and Reports that established the harm that is caused by hate messages. (Taylor, supra, at para. 41) There is no suggestion that the majority's conclusion with regard to the harm that is caused by hate messages was limited to the particular facts of the case.
[51] Therefore, messages that fall within the definition of hate messages in s. 13(1) do cause harm. Proof of harm is not required. The key is to ensure that only those messages that are likely to expose members of the targeted group to unusually strong and deep-felt emotions of detestation, calumny and vilification are caught by s. 13(1).
The Likelihood of Exposure to Harm
[52] How is the likelihood of exposure to hatred or contempt to be determined? Is it sufficient for the Tribunal to have regard to the messages alone and then draw an inference, based on the content, tone and presentation of the messages as to whether they are likely to expose members of the targeted group(s) to hatred or contempt? Or must there be other evidence to assist the Tribunal in determining whether the messages are likely to expose members of the targeted groups to hatred or contempt?
[53] In Citron v. Zundel, (No. 4) (2002), 41 C.H.R.R. D/274, at para. 141, the Tribunal stated that, although the expert evidence in that case was helpful, it was the language used in the messages themselves that persuaded the Tribunal that the material offended s. 13(1) of the Act. Similarly, in Warman v. Kyburz, 2003 CHRT 18, the Tribunal noted the expert's evidence that suggested the messages were likely to expose people of the Jewish faith to hatred and contempt, but the Tribunal found that it was evident from the messages themselves that they exposed Jewish people to hatred (Kyburz, supra, at para. 43).
[54] The Respondent has argued that the likelihood of exposure to hatred and contempt should not be assessed on the basis of the Tribunal's own subjective impressions of the material, nor should it be based on the Tribunal's assessment of the potential impact of the messages on the most malevolent or unthinking person as suggested in Nealy v. Johnston. Rather, the Respondent argued that the assessment should be made on the basis of the likely reaction of the Canadian public.
[55] The likely reaction of the Canadian public to the impugned messages is determined by comparing the impugned messages to messages of a similar nature that are available on the Internet where the reaction of the Canadian public is known. The Respondent called the latter messages the tolerated messages. I disagree with the term tolerated for the reasons that follow, but for ease of reference, I will continue to use the term the Respondent has given them.
The Tolerated Messages
[56] During the hearing, counsel for the Respondent led evidence that consisted of excerpts from the Bible, the Koran, The Merchant of Venice by William Shakespeare, The Adventures of Huckleberry Finn by Mark Twain, Mein Kampf by Adolph Hitler, lyrics from contemporary Rap music available on the Internet and other written material that is available online. This material was provided as examples of material that is likely to expose members of a group identifiable on the basis of a prohibited ground of discrimination to hatred or contempt. For example, in The Merchant of Venice, Shakespeare describes Shylock, a Jewish money lender, as a dog Jew. In the book of Leviticus in the Bible, homosexuality is described as an abomination and homosexuals as ignorant transgressors that should be put to death. The Rap music that was introduced into evidence describes the white man as the devil and advocates the killing of White people because they are not worthy to walk the earth with the original black man.
[57] Counsel for the Respondent asserted that these messages were of a comparable nature to the impugned messages. She then stated that uncontradicted evidence showed that the Canadian public has not reacted with hatred or contempt against the targeted groups as a result of these messages which, in the opinion of counsel for the Respondent, are undoubtedly more influential and widely disseminated than the impugned messages. Therefore, counsel for the Respondent asserted, the Canadian public is unlikely to react with hatred and contempt to the impugned messages.
[58] The uncontradicted evidence would appear to be statements by Respondent counsel, in closing argument, such as the following:
Regarding sexual orientation, the Catholic Church's vocal opposition of homosexuality is current, well-known, extensive, long term and government subsidized through the church's favorable tax status. Yet, it is also well-known that last year, despite its minority nature, federal Parliament successfully passed law legalizing same sex marriages. Canadian public has shown itself unlikely to be inspired by this message to hold hatred and contempt against homosexuals, its repeated communication notwithstanding.
[59] Counsel for the Respondent further asserted that the fact that Canada's Governor General, Her Excellency Michaëlle Jean, is a Black woman and that multi-faith weddings occur is further uncontradicted proof that the tolerated messages have not resulted in hatred or contempt being directed at the targeted groups.
[60] There are a number of flaws in this approach. Firstly, I find no basis for the Respondent's assertion that uncontradicted evidence demonstrates that the Canadian public has not reacted with hatred or contempt as a result of the tolerated messages. The fact that the Governor General of Canada is a Black woman, for example, in no way proves that the tolerated messages that disparage Black people have not caused some people to react with hatred and contempt towards Black people. The fact that there are inter-faith marriages does not prove that messages advocating the annihilation of Jewish people have not caused some people to react with hatred and contempt toward people of the Jewish faith.
[61] Secondly, and perhaps more importantly, whether or not Canadians have reacted with hatred or contempt to any of the so-called tolerated messages has no bearing whatsoever on my evaluation of the Respondent's messages. As I indicated above, it is not necessary for the Complainant to prove that the Respondent's messages, much less other messages found on the Internet, have caused others to react with hatred or contempt toward the targeted groups. The question is whether the Respondent's messages are likely to expose members of the targeted groups to hatred or contempt.
[62] If the Respondent's argument is that there is no evidence that the tolerated messages have exposed members of the targeted group to hatred or contempt, again I disagree. The fact that same-sex marriage has been legalized in some jurisdictions in no way demonstrates that the tolerated messages advocating violence against homosexuals are unlikely to expose homosexuals to hatred and contempt. In that regard, I note that the Biblical passage which states that if a man lies with a man he must be put to death, when combined with an anti-gay symbol has been found by the Saskatchewan Board of Inquiry to expose homosexuals to hatred (Hellquist v. Owens (2001), 40 C.H.R.R. D/197, aff'd, 2002 SKQB 506, on appeal to the Sask. C.A.). Therefore, it cannot be argued that there is no evidence that the tolerated messages have exposed members of the targeted group to hatred or contempt.
[63] As a culture, we may be exposed, on a frequent basis, to messages that convey hate. However, the likelihood that a message will expose people to hatred and contempt does not diminish because there are numerous others like it circulating in society. The goal of promoting equality of opportunity unhindered by discriminatory practices is not advanced by importing a standard that effectively asks: in comparison to the many messages in society that are likely to expose people to hatred or contempt, are these messages really so bad?
[64] For these reasons, in determining whether the impugned messages are likely to expose persons to hatred or contempt, I cannot give any weight to the widespread existence of other messages that are alleged to have the same effect. Rather, I must focus on whether it is reasonable to conclude, on the basis of the language, tone, presentation and content of the impugned messages, that they might well have exposed members of the targeted groups to hatred and contempt.
[65] Moreover, as the majority of the Supreme Court in Taylor stated, as long as the Tribunal continues to sanction only those communications that are likely to expose members of the targeted groups to unusually strong and deep-felt emotions of hatred and contempt, there is little risk that the subjective opinion of the Tribunal will result in the prohibition of merely offensive communications. The Tribunal must also bear in mind that the goal of s. 13(1) is to prohibit hate messages that, by their very nature, create harm. The goal of s. 13(1) is not to rid the Internet of vulgar, distasteful and offensive material.
(ii) The Impugned Messages The Northern Alliance Guestbook
[66] In a message on the Northern Alliance Guestbook dated July 12, 2003, the Respondent expressed his disgust for Black people and people of the Jewish faith. He called Black people niggers and described them as intellectually inferior to white people. He stated that he dislikes Blacks in general. The reasons he provided are that Black people are violent and stupid. He stated that Jewish people are responsible for having infested us with the nigger and, therefore, Jewish people should be forced to live with Black people in Israel. He asserted that Jewish people control the media and that is why people like Einstein have received far more acclaim than non-Jewish inventors. The Respondent also expressed his admiration for the Japanese and their culture. He stated that the Japanese are very racially aware and have very strict immigration laws. He stated It will be interesting to see how they handle the Jewish problem.
[67] In this message, the Respondent attempts to legitimize an attitude of contempt and hatred for people of the Black race by portraying them as intellectually inferior, violent and stupid - in short, devoid of any redeeming qualities. He weaves into this message a theory that blames Jewish people for bringing Black people into White civilization and for taking credit for new inventions. The message fosters the belief that both Black and Jewish people are ruining Canadian society. It is therefore, likely to expose members of these groups to hatred or contempt.
The Winnicki Website
[68] On the website found at WWW3.sympatico.ca/tom.winnicki, the Complainant found a graphic image or poster that included swastikas, a robot and several other images over which was superimposed the following words:
WHITE REVOLUTION IS COMING ...... AND IT'S GIGANTIC.
[69] Then, in smaller letters under the robot image, was the following:
HOLOHOAX DEBUNKED. FOR UNBIASED HISTORY GO TO: WWW.ihr.org. FOR WHITE NEWS FORGET CNN? GO TO WWW.GOVNN.COM
[70] Underneath the poster, in capital and bolded letters was the following message:
WE'RE COMING FOR YOU, YOU JEW FUCKS, YOU AND YOUR SERVILE DOGS TOO.
[71] This message contains a number of elements that make it likely to expose Jewish people to hatred or contempt. Firstly, it refers to the Holocaust as the Holohoax. This term inspires contempt and ill-will towards Jewish people by suggesting that the mass murder of millions of Jewish people during the Second World War did not happen and was merely a hoax. Secondly, there is a clear threat of harm and ill-will toward Jewish people conveyed in this message. Therefore, I find that the message is likely to expose people of the Jewish faith to hatred or