Warman v. Guille

Warman v. Guille
Collection
Canadian Human Rights Tribunal
Date
2008-09-30
Neutral citation
2008 CHRT 40
File number(s)
T1134/1606
Decision-maker(s)
Deschamps, Pierre
Decision type
Decision
Decision Content
RICHARD WARMAN
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CANADIAN HERITAGE ALLIANCE
- and -
MELISSA GUILLE
Respondent
REASONS FOR DECISION
2008 CHRT 40 2008/09/30
MEMBER: Pierre Deschamps
I. INTRODUCTION
II. THE RELEVANT PROVISIONS OF THE CANADIAN HUMAN RIGHTS ACT
III. PRELIMINARY CONSIDERATIONS
A. The additional examples
B. The credibility of Mr. Warman
C. The status of the Canadian Heritage Alliance
D. The involvement of Ms. Guille in the Canadian Heritage Alliance
E. The constitutional challenge
F. The security measures put in place at the hearing
IV. SUBSTANTIAL ISSUES
A. Legal Issues
B. Legal Analysis
(i) Is the material referred to in the complaints likely to expose a person or a group of persons to hatred and/or contempt on the basis of a prohibited ground of discrimination?
(ii) Was the impugned material communicated repeatedly in whole or in part on the Canadian Heritage Alliance website?
(iii) Did the Respondents, Melissa Guille and Canadian Heritage Alliance, communicate or cause to be communicated the impugned messages by means of the Internet?
(iv) Is the Respondent, Canadian Heritage Alliance, a group of persons for the purposes of section 13(1) of the Act?
V. REMEDIES
A. Cease and Desist Order
B. Order to pay a penalty
VI. ORDERS
I. INTRODUCTION [1] On August 11, 2004, Mr. Richard Warman, the Complainant, filed a complaint against Ms. Melissa Guille in which he alleges that, on July 21, 2002 and onward, the latter discriminated against persons or groups of persons on the basis of sexual orientation, religion, race, colour and national or ethnic origin, by repeatedly communicating messages through an Internet website that would likely expose gays and lesbians, Jews, and Muslims, First Nations, Blacks, Arabs, other non-whites, and Roma (aka Gypsies) to hatred and or contempt contrary to section 13(1) of the Canadian Human Rights Act.
[2] The Complaint provides, according to the Complainant, eight representative samples of discriminatory material posted on the Canadian Heritage Alliance (CHA) website. The Complainant concludes that, based on the foregoing examples, he believes that Melissa Guille has discriminated against persons or groups of persons on the basis of sexual orientation, religion, race, colour, and national or ethnic origin, by repeatedly communicating messages through an Internet website that would likely expose gays and lesbians, Jews, and Muslims, First Nations, Blacks, Arabs, other non-whites, and Roma (aka Gypsies) to hatred and or contempt contrary to section 13(1) of the Canadian Human Rights Act.
[3] On August 11, 2004, Mr. Richard Warman filed a separate complaint against the Canadian Heritage Alliance alleging that, on July 21, 2002 and onward, the Canadian Heritage Alliance discriminated against persons or groups of persons on the basis of sexual orientation, religion, race, colour and national or ethnic origin, by repeatedly communicating messages through an Internet website that would likely expose gays and lesbians, Jews, and Muslims, First Nations, Blacks, Arabs, other non-whites, and Roma (aka Gypsies) to hatred and or contempt contrary to section 13(1) of the Canadian Human Rights Act.
[4] Given the similarities of the two complaints, the Tribunal will deal with them together.
[5] The Commission fully participated at the hearing into the complaint and was represented by legal counsel. The Complainant, who is a lawyer, represented himself. As for the Respondents, they were represented by two agents, duly recognized as such by the Tribunal. The Tribunal heard two witnesses: Mr. Warman and Ms. Guille.
II. THE RELEVANT PROVISIONS OF THE CANADIAN HUMAN RIGHTS ACT [6] Section 13 of the Canadian Human Rights Act which deals with hate messages provides that
It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination. 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, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking. For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.
[7] Section 3 of the Act defines the prohibited grounds for discrimination. It reads as follows:
For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex.
III. PRELIMINARY CONSIDERATIONS [8] Before analysing the substantive issues that the present complaints raise, there are a number of preliminary issues that the Tribunal must consider. These are A. the additional examples of possible violations of section 13 of the Act tendered in evidence by the Complainant and the Commission, B. the credibiliy of Mr. Warman, C. the status of the Canadian Heritage Alliance, D. the involvement of Ms. Guille with respect to the Canadian Heritage Alliance website, E. the constitutional challenge, F. the security measures that had to be put in place at the hearing.
A. The additional examples [9] In the course of his testimony, Mr. Warman referred to 37 postings which he downloaded from the Canadian Heritage Alliance website and which he alleges contrevene section 13 of the Canadian Human Rights Act. These postings can be put into two categories: 1. articles written by different individuals which address different topics, 2. threads in which individuals expressed their views in relation to the views expressed by other individuals able to post on the CHA website.
[10] At the hearing, the issue arose as to whether or not the Tribunal was limited to the eight representative examples listed in the two complaint forms or could also consider the 37 or so postings and articles found in Exhibit HR-1, Tab. C of the Commission's Book of documents. The Respondents objected to the documents found in Exhibit HR-1, Tab. C being considered by the Tribunal given that they were not mentioned in the complaint forms. The Tribunal ruled that the postings found in Exhibit HR-1, Tab. C were admissible, but took the Respondent's objection under advisement.
[11] The record shows that, at the time of the filing of his complaints against Ms. Guille and the Canadian Heritage Alliance, Mr. Warman in his complaint forms specifically refered to 8 postings on the Canadian Heritage Alliance website which, according to him, showed a breach of section 13 of the Canadian Human Rigts Act.
[12] The evidence shows that additional examples were adduced in evidence by the Complainant and the Commission later in the process. The record shows that the two complaint forms that were referred to the Tribunal were never amended so as to incorporated additional examples of possible breach of section 13 of the Canadian Humans Rights Act in them.
[13] The Respondents argued that this is a breach of the principle of natural justice, that a respondent, whoever he may be and however serious the allegations that are made, should know off-hand, from the beginning, what is the case that he or she has to meet so as to be in a position to defend himself or herself adequately. The Tribunal agrees.
[14] In Warman v. Kyburz, 2003 CHRT 18, the Tribunal had to decided if material filed with the Tribunal shortly before the hearing was to begin were admissible. The Commission asked to file the material, notwithstanding that the documents had not been disclosed to the Respondent in advance of the hearing. The Tribunal allowed the material to be filed at the hearing, reserving its decision as to what weight, if any, should be attributed to the documents. The Tribunal, after having stated that the complaint did allege that the discriminatory practice was ongoing, ruled that it did not need to resolve this issue and indicated that the additional documents added little to the complaint, in that they simply consisted of further examples of the type of messages already described.
[15] In Warman v. Winnicki, 2006 CHRT 20, the Commission asked that the complaints that had been referred to the Tribunal be amended to include additional grounds of discrimination. The Tribunal granted the request and the complaint was amended to include the additonnal grounds and the new material, referred to as the post-referral evidence, was appended to the revised complaint. The Tribunal stated in its decision that, as a result of the Tribunal's ruling, excerpts of the post-referral evidence were incorporated into the particulars of the amended complaint. The Tribunal further indicated that the amended complaint specifically contemplated the possibility that additional evidence of the violation of section 13(1) would occur by including the words `and ongoing' in the date of the alleged discriminatory conduct. It must be noted here that the respondent did not object when the Commission introduced the post-referral evidence, which is not the case in the present proceedings.
[16] In Warman v. Kouba, 2006 CHRT 50, however, material that post-dated the filing of the complaint was submitted as evidence of the on-going violation of section 13 of the Act as alleged in the complaint form without any motion to have the complaint amended being brought. The Tribunal found it appropriate for it to consider the evidence that post-dated the filing of the complaint. The Tribunal based its decision on the fact that the respondent did not object to the production of the post-complaint material, that the evidence related to the ongoing nature of the alleged violations of the Act, and the fact that the respondent had notice through the complaint form and the disclosure of the material that additional material would be presented during the hearing.
[17] In an earlier decision, Leblanc v. Canada Post Corporation, (1992) 18 C.H.R.R.D/57, the Commission lead evidence of incidents of alleged discrimination which were not set out in the complaint form. The Tribunal heard the evidence. In its decision, the Tribunal stated that it would have been preferable if the Commission had provided the respondent with particulars of every incident of discrimination being relied upon in the complaint form. However, it went on to say that in an administrative hearing such as this one, the Commission and the complainant are not necessarily restricted to the four corners of the complaint form. The Tribunal further stated that the new evidence should be considered in light of the fairness of admitting it and concluded that, in that case, the respondent knew the case it had to meet.
[18] Complaints brought pursuant to section 13 of the Act are not ordinary discrimination complaints in that the Act provides, since 1998, that a respondent can be ordered to pay a penalty of up to ten thousand dollars. The addition of a penal element to the Canadian Human Rights Act is not, as one can see, without consequence for a respondent.
[19] The Tribunal is of view that, in any human rights complaint, a respondent is entitled to be provided with all the material elements upon which the Complainant and the Commission intend to rely on to prove a breach of the Act. The material elements should not only be part to the disclosure but of the complaint itself so that the respondent will know precisely the case he or she has to meet and be in a position to fully defend himself or herself.
[20] The fact that the complaint forms indicate with respect to the date of the alledged conduct `ongoing' does not imply that the Commission or the Complainant can, at their leisure, add additional events or documents to the complaint without respecting the rules of natural justice and of procedural fairness.
[21] The Tribunal is of the view that, if additional material is considered by the Commission or the complainant to potentially be in breach of section 13 of the Act, they can, as the case law shows, ask that the complaint be amended so as to introduce additional elements of potential discriminatory acts. To say that the respondent was not taken by surprise by the filing of additional documents does not meet the procedural fairness principle of a hearing and the right of a respondent to present a full defence to any allegation of improper conduct made against him under section 13 of the Act.
[22] Furthermore, it is important to note that if a respondent is made aware that specific postings or articles are problematic and possibly in breach of section 13 of the Act, he or she will have the possibility of removing them, thus reducing the exposure of targeted groups to hatred and contempt.
[23] In the present case, the record shows that the Complainant expressed the belief in his complaint forms that, based on the foregoing examples, which amounted to eight, Ms. Guille was in breach of Section 13(1) of the Canadian Human Rights Act. If this is the case, then the addition of new material would only provide further examples of potential discriminatory acts. Basically, the eight examples provided in the complaint forms would still be in themselves sufficient to make the Commission's and the Complainant's case against the Respondents.
[24] The Tribunal is cognizant of the fact that Section 48.9 of the Canadian Human Rights Act states that proceedings before the Tribunal shall be conducted as informally and expediously as the requirements of natural justice and the rules of procedures allow. However, the Tribunal is of the view that the principles of nature justice and of procedural fairness trump expediency of the process and require that respondents be fully apprised, from the start and throughout the proceedings, what will be the case they will have to meet.
[25] The evidence shows, as will be seen, that Ms. Guille, upon learning that some postings or articles were problematic, decided to remove them from the Canadian Heritage Alliance website as soon as she learned of their existence. One can surmise that had she known earlier, i.e. at the time of the filing of the complaint, she would probably have removed them earlier from the website, thus diminishing the exposure of the general public to material that is contrary to section 13 of the Canadian Human Rights Act.
[26] The Tribunal thus finds that Respondents' objection with respect to the filing of additional material by the Commission without having amended the complaint forms to be well founded. Hence, the Tribunal will not make findings with respect to the additional material listed in Annex 1.
B. The credibility of Mr. Warman [27] In the present proceedings, the Respondents attacked Mr. Warman's credibility on many fronts.
[28] Firstly, the Respondents argued that Mr. Warman is a human rights activist who specializes in making complaints based on article 13 of the Canadian Human Rights Act and who formerly worked for the Commission. Secondly, the Respondents argued that Mr. Warman was not truthful about his identity using the pseudonym David Mclean in his dealings with Ms. Guille and the Canadian Heritage Alliance. Thirdly, the Respondents stated that Mr. Warman was himself in breach of section 13 of the Act, for having created accounts on racist websites using the name Lucie Aubrack and the90sareover and posted material, using pseudonyms such as axetogrind, that could be considered hateful. Fourthly, the Respondents argued that Mr. Warman was evasive in his answers.
[29] The record shows that Mr. Warman has, over the years, litigated many complaints referred to the Tribunal by the Canadian Human Rights Commission. The Tribunal cannot ignore the fact that Mr. Warman is a human rights activist and that this may colour at times his testimony. This said, the Tribunal when making its determination as to whether or not there was a breach of section 13 of the Act and as to whether or not the material tendered in evidence constitutes hate messages will have to take into consideration not only the testimonial evidence of Mr. Warman but also the documentary evidence tendered.
[30] Furthermore, the Tribunal is of the view that the fact that Mr. Warman used a pseudonym, i.e. David Mclean, in his communications with Ms. Guille and the Canadian Heritage Alliance should not come as a surprise. This is common practice when going on the web. Generally speaking, people will not reveal their true identity.
[31] With respect to the fact that Mr. Warman might have posted on the Canadian Heritage Alliance website or on other websites material that could be contrary to section 13 of the Canadian Human Rights Act, the Tribunal finds that no conclusive evidence was tendered showing that this was the case. This said, if the Respondents feel that Mr. Warman has contravened section 13 of the Act, they can themselves file a complaint with the Canadian Human Rights Commission.
[32] As for Mr. Warman evasiveness in his testimony, the Tribunal finds that Mr. Warman's answers were not always straightforward and notes that a certain form of animosity existed between himself and Respondents' agents which led Mr. Warman to object to questions put to him because he felt they were not relevant. As stated earlier, the Tribunal will consider the whole of the evidence, testimonial, documentary and circumstantial to make its determination as to whether or not section 13 of the Act was breached by the Respondents.
C. The status of the Canadian Heritage Alliance [33] In her testimony, Ms. Guille stated that the Canadian Heritage Alliance website was a means for people to express their views on free speech and government policies, that people could come to the website and post their articles and opinions, that they could start a thread in the forum section and exchange views, that debate was really promoted.
[34] Ms. Guille testified that at first, individuals posting on the forum section had to join up but later did not have to. She added, however, that because of some nasty things being written in the forum section, individuals had eventually to sign up or register in order to be able to post in the forum section. This allowed her to have knowledge of their email and IP address. Ms. Guille stated that this did not entail joining a group but joining a website.
[35] Ms. Guille stated in her testimony that if an individual wanted to post an article on the website, he would visit a specific link on the website, that this would give him a page with a user name field and a password field. The individual would then click submit and that would bring him to a form where he would post his material. When submitted, articles were posted immediately.
[36] Ms. Guille testified that individuals joining the website needed to agree to the terms of service which stated that people were responsible for what they posted on the forum section and that they could not post things that were overtly hateful or crude. According to Ms. Guille, the number of people who joined the forum amounted at first to 100 then went down to around 20 to 30, that the number varied from year to year.
[37] Ms. Guille expressed the view that the Canadian Heritage Alliance website was just a website. Asked about the membership, she stated that it was more a membership to the website, that there was, in fact, no membership list. Asked why a membership was created, she stated that it was to provide those interested in the website an information package explaining what the website was used for.
[38] The documentation tendered in evidence by the Complainant, and the Commission which was obtained from the Canadian Heritage Alliance website, as well as the material produced by the Canadian Heritage Alliance, such as the Membership Guide, show that the Canadian Heritage Alliance describes itself as a collection of dissident writers and concerned Canadians who seek to revive the civil liberties of the Canadian citizen that have been smothered by the voice of special interest groups. The documentation indicates that the Canadian Heritage Alliance is centered in Southern Ontario, but has members all across Canada and in the USA. The information found on the Canadian Heritage Alliance website also refers to the fact that the CHA is a Canadian political lobby group, formed in August 2000 to give political expression to Canadian citizens.
[39] The evidence further indicates that Canadian Heritage Alliance publishes a newsletter (Canadian Heritage News) and has staff journalists, that Ms. Guille is the Publications Director and Managing Editor of the Canadian Heritage News, that membership cards are issued as well as an information package.
[40] Whether or not Canadian Heritage Alliance has a membership in the traditional sense of the word, i.e. individuals who become part of an organisation, are issued a membership card, have the right to elect members to a Board of directors, pay dues, receive a newsletter, is somewhat irrelevant, or at least not conclusive in this case to the determination as to whether or not the Canadian Heritage Alliance constitutes a group of persons acting in concert. The Canadian Heritage Alliance describes itself as a collection of dissident writers and concerned Canadians as well as a political lobby group. The Tribunal finds that this, in itself, is sufficient to establish that the Canadian Heritage Alliance constitues a group of persons acting in concert pursuant to section 13(1) of the Canadian Human Rights Act.
[41] Hence, the Tribunal finds that Canadian Heritage Alliance is more than a website, as argued by the Respondents, but that it is in fact a group of persons acting in concert for the purposes of section 13(1) of the Act. The Tribunal thus finds that the Canadian Heritage Alliance is a proper respondent in this case and that it is within the authority of the Tribunal to make an order as against it.
D. The involvement of Ms. Guille in the Canadian Heritage Alliance [42] Beyond a shadow of a doubt, the record establishes that Ms. Guille is the site administrator or webmaster of the Canadian Heritage Alliance website. A WHO-IS search conducted by the Complainant reveals that Ms. Guille was, at the time of the complaint, the registrant contact, as well as the administrative, technical and billing contact of the Canadian Heritage Alliance website. A posting on the Canadian Heritage Alliance forum made by Ms. Guille indicates that she is the site administrator.
[43] In an email exchange with David Mclean, a.k.a. Richard Warman, Ms. Guille states that she was one of the three individuals involved in the creation of the Canadian Heritage Alliance. She furthermore testified that she registered the url for the website and set up the website, i.e. created a visual page with information links, the title page and categories.
[44] In her testimony, Ms. Guille acknowledged that she was the person who had the power to remove what had been put on the website, that she was the person who edited postings and articles and who designated the moderators for the website. She however added that she did not know their identity and had no authority over the moderators.
[45] Asked what steps she took before deciding who would become a moderator, Ms. Guille answered that she looked at their postings on previous boards and made the decision to whether or not select them as moderators. She chose, she said, individuals who had a long history of posting on the forum and with whom she never had any problems. She testified that moderators could remove and edit material. Asked if it would not have been appropriate to have a more substantive record of who these people were, Ms. Guille stated that she did not feel that it was necessary.
[46] Ms. Guille further testified that she did not know the identity of the individuals posting on the Canadian Heritage Alliance website. She stated that usually people will not provide their true identity, that the Canadian Heritage Alliance website is dedicated to free speech and that this meant discussing controversial issues that may not be part of every day conversations. Ms. Guille stated that controversial issues were for her immigration, free speech, race, culture, ethnic origin, religion, sexual orientation.
[47] Asked who was in charge of the Canadian Heritage Alliance website forum, she stated that nobody was specifically in charge but that, as the administrator, she took care of the back-end content and that if she came across something that needed to be removed or edited, she would remove it.
[48] Ms. Guille testified that were a few complaints about some of the postings, that if someone took strong exception to an article, she enjoyed it because it opened up the discussion and that if someone brought something to her attention as being problematic, the decision to remove the material would depend on the nature of the problem. Asked what she used to guide herself, she stated that she used her best judgment, that she could not hire a lawyer, that when she received the complaint, she realized that she had to take into account more that section 319 of the Criminal Code.
[49] Given Ms. Guille's testimony, the Tribunal finds that Ms. Guille had full control over the Canadian Heritage Alliance website.
[50] On another note, the evidence shows that Ms. Guille has close ties with neo-nazi and white supremacists sympathizers which, in this day and age, is quite disconcerting. Throughout her testimony, she refered to her friends, who are shown to be neo-nazi sympathisers on pictures tendered in evidence by the Commission, as associates. She stated candidly when asked if she had any difficulty sitting in a room with a nazi flag hanging on the wall that she did not see this as problematic.
[51] Asked in the course of her testimony if she was a white supremacist or a neo-nazi, she stated that she was not, that she treated everybody equally, that in her university days, she had to deal with people of various racial backgrounds or sexual orientationss, and that today, in the relationship with her community and in her workplace, she did not have difficulty in getting along with people of different backgrounds.
[52] There is not doubt in the Tribunal's mind that, over and above the fact that the Canadian Heritage Alliance website is a forum for discussion of very sensitive and controversial subjects, the people who are associates of Ms. Guille, the case law shows, have been found to be close to the neo-nazi and the white supremacist movements and found to have been in breach of section 13 of the Act. The Tribunal is however mindful that this, in itself, does not prove that Ms. Guille and the Canadian Heritage Alliance have violated section 13 of the Act.
[53] Ms. Guille, the evidence shows, has strong views about her European heritage and is prepared to fight for its preservation. Ms. Guille testified that when she refers to the notion of culture, she refers to the European culture and when referring to the European culture, she is referring to her family heritage. For her, those who fall under the umbrella of European heritage are people from different parts of Europe and include people who have grown up in Europe or whose ancestors are from Europe.
[54] Ms. Guille indicated in her testimony that for her, the European culture is different from the muslim faith, that, for her, Europe is a geographic region built up of different races such as Italians. Asked if in her definition of the European culture, she included people from Africa, Ms. Guille stated that it did not include Carribean immigrants to England and added that the latter did not consider themselves as Europeans because they wanted to hold on to their own cultural heritage.
[55] In her testimony, Ms. Guille described herself as a nationalist who expressed her concerns about how Canada was evolving, about immigration and freedom of speech. She stated that she saw Canadians being oppressed whereas minorities had the right to free speech, that they benefited of more leniency, that Canadians were not allowed to speak out against anything that was going on. She also stated that she was proud of her country; she expressed the belief that every culture has its own rights, including the right to be free and equal within their own culture. Ms. Guille further stated that she had concerns abouth the high costs related to the integration of immigrants, that the money was not being used for education and the health care system.
[56] Ms. Guille stated in her testimony that she opposes gay marriage and that she should be allowed to be for or against gay marriages. She testified that when she went to a gay marriage protest, there were people from other religious groups present. She expressed the belief that everyone has a right to free speech, that she believed that there should be unequivocal free speech aside from death threats and criminal acts.
[57] Ms. Guille further testified that she was not aware of the existence of section 13 of the Canadian Human Rights Act and that the articles and postings on the Canadian Heritage Alliance website violated section 13 of the Act even though she followed closely, the evidence shows, the Zündel trial. Ms. Guille acknowledged that she was aware of the complaints made by Mr. Warman against Mr. Kulbashian and Mr. Richardson as well as Mr. Winnicki.
[58] Ms. Guille further stated in her testimony that even after this hearing, she still did not know what violates the Canadian Human Rights Act, that the hearing has not given her insight as to what violates the Act, that the Act is vague and not clear at all as to what constitutes hate given that no clear guidelines exist. Hopefully, after reading this decision, Ms. Guille will.
E. The constitutional challenge [59] In August 2007, the Respondent, Melissa Guille, filed a notice of constitutional challenge in relation to the present proceedings. In her notice, the Respondent indicates that it intends to question the constitutional applicability, validity and effect of section 13 of the Canadian Human Rights Act. The Tribunal ruled, at the time, that it would first hear the merits of the case, issue a decision and suspend the execution of its decision so as to allow the Respondent to duly present its notice of constitutional challenge before the Tribunal.
[60] The record shows that in November 2007, Ms. Guille's agent made another request in which he asked the Tribunal to consider the notice of constitutional challenge before the resumption of the hearing on December 10, 2007. In a letter sent to the parties on November 20, 2007, the Tribunal issued the following directives which still hold: As indicated by the Tribunal's instruction of August 27, 2007, the Charter issue raised by the Respondent will be heard by the Tribunal at a later time, after the merits of the complaint.
F. The security measures put in place at the hearing [61] The record shows that extraordinary measures were taken during the hearing to ensure the safety of everyone, the tribunal, the parties, their counsels or agents. The hearing was held in different venues. For the most part of the hearing, two Toronto policemen were present, one inside, the other outside of the hearing room. Two security agents were hired by the Tribunal to check personal belongings. Except for the Tribunal member and the Registry Officer, people were wanded with a metal detector. Furthermore, it appears that bodyguards were hired to ensure the protection of the Commission's lawyers and the Complainant. The measures put in place by the Tribunal were necessary to ensure the protection of everyone attending the hearing. They however, at times, created a tense atmosphere in the hearing room between the parties.
IV. SUBSTANTIAL ISSUES [62] As stated by this Tribunal in Warman v. Warman, 2005 CHRT 36, the `purpose of section 13 of the Canadian Human Rights Act is to remove dangerous elements of speech from the public discourse. The removal of these elements of speech from the public discourse promotes equality, tolerance and the dignity of the person. It also protects the member of minorities from the psychological harm caused by the dissemination of racial views which result inevitably in prejudice, discrimination and the potential of physical violence' (Warman, par. 36).
A. Legal Issues [63] The burden of proving a breach of section 13 of the Act lies on the Complainant and the Commission. HE WHO ALLEGES MUST PROVE. In order to prove a breach of section 13 of the Act, the following questions must be answered in the affirmative:
Is the material referred to in the complaints likely to expose a person or a group of persons to hatred and/or contempt on the basis of a prohibited ground of discrimination? Was the impugned material communicated repeatedly in whole or in part on the Canadian Heritage website? Did the Respondents, Melissa Guille and Canadian Heritage Alliance, communicate or cause to be communicated the impugned messages by means of the Internet? Is the Respondent, Canadian Heritage Alliance, a group of persons for the purpose of section 13(1) of the Act?
The Tribunal will analyse these different questions in turn.
B. Legal Analysis (i) Is the material referred to in the complaints likely to expose a person or a group of persons to hatred and/or contempt on the basis of a prohibited ground of discrimination? [64] The Tribunal must first determine if the material found on the CHA website is likely to expose members of the targeted groups to hatred or contempt.
[65] The words likely, expose, hatred or contempt have taken on a special meaning in the context of article 13 of the Act as the case law evolved. One of the leading cases is Nealy v. Johnston, (1989) 10 C.H.R.R., D6450 where the Tribunal analysed the wording of section 13 of the Act. Since then, the Tribunal has retained the interpretation given in Nealy to the words likely, expose, hatred or contempt.
[66] In Nealy v. Johnston, the Tribunal stated that the wording likely to expose a person or persons to hatred or contempt meant that is is not necessary that evidence be adducedd that any particular individual or group took the messages seriously and in fact directed hatred or contempt against another or others, that it was enough to prove that the matter in the messages was more likely than not to spark a positive reaction amongst some of the listeners to it which will likely in turn manifest itself in hatred and contempt towards the targets of the messages.
[67] With respect to hatred, the Tribunal stated that the focus was a set of emotions and feelings which involve extreme ill will towards another person or groups of persons. To say that one hates another means in effect that one finds no redeeming qualities in the latter. The Tribunal went on to say that contempt is by contrast to hatred a term which suggests a mental process of looking down upon or treating as inferior the object of one's feelings.
[68] As for the term expose, the Tribunal stated that an active or intent on the part of the communicator or a violent reaction on the part of the recipient are not envisaged, that to expose to hatred indicates a more subtle and indirect type of communication than vulgar abuse or overtly offensive language. For the Tribunal, expose meant to leave a person unprotected, to leave without shelter or defence, to lay open (to danger, ridicule, censure, etc.).
[69] No expert evidence was called in the present case. The Respondents argued that the Tribunal could not determine the true nature of the material posted on the Canadian Heritage Alliance website without the benefit of such evidence. The fact of the matter is that it belongs to the Tribunal, given the criteria set out in the case law, to make the final determination as to whether or not a posting or an article is in breach of section 13 of the Act.
[70] In Warman v. Kouba, 2006 CHRT 50, the Tribunal set out a non-exhaustive list of eleven hallmarks of hate messages, accompanied by an elaboration of on each of the hallmarks. These hallmarks are the following:
The Powerful Menace Hallmark: the targeted group is portrayed as a powerful menace that is taking control of the major institutions in society and depriving other of their livelihoods, safety, freedom of speech and general well-being; The True Story Hallmark: the messages use true stories, news reports, pictures and reference from purportedly reputable sources to make negative generalizations about targeted group; The Predator Hallmark: the targeted group is portrayed as preying upon children, the aged, the vulnerable, etc.; The Cause of Society's Problems Hallmark; the targeted group is blamed for the current problems in society and the world; The Dangerous or Violent by Nature Hallmark: the targeted group is portrayed as dangerous or violent by nature; The No Redeeming Qualities Hallmark: the messages convey the idea that members of the targeted group are devoid of any redeeming qualities and are innately evil; The Banishment Hallmark: the messages communicate the idea that nothing but the banishment, segregation or eradication of this group of people will save others from the harm being done by this group; The Sub-human Hallmark: the targeted group is de-humanized through comparisons to and associations with animals, vermin, excrement, and other noxious substances; The Inflammatory Language Hallmark: highly inflammatory and derogatory language is used in the messages to create a tone of extreme hatred and contempt; The Trivializing or Celebration of Past Tragedy Hallmark: the messages trivialize or celebrate past persecution or tragedy involving members of the targeted group; The Call to Violent Action Hallmark: calls to take violent action against the targeted group.
[71] The evidence of the Complainant and of the Commission consisted mainly of Mr. Warman reading into the record passages of email strings found on the Canadian Heritage Alliance website as well as passages or the full text of articles found on the website.
[72] As ruled above, the Tribunal will only be analysing the 8 examples referred to in the original complaint forms. The Tribunal has however reproduced the relevant excerpts of the other examples provided to the Tribunal by the Commission and the Complainant in an Annex to this decision.
[73] Mr. Warman testified that he became aware of the Canadian Heritage Alliance website in the early 2000. He stated that he concluded that it was a neo-nazi and white supremacist website not only from the content of the site but also his knowledge of the individuals involved and their non website activities.
[74] In his complaint forms, Mr. Warman refers to eight examples taken from the Canadian Heritage Alliance website that he believes constitute material that falls under section 13 of the Canadian Human Rights Act. Mr. Warman testified that the threads and artic