Warman v. Marc Lemire

Warman v. Marc Lemire
Collection
Canadian Human Rights Tribunal
Date
2009-09-02
Neutral citation
2009 CHRT 26
File number(s)
T1073/5405
Decision-maker(s)
Hadjis, Athanasios
Decision type
Decision
Decision status
Final
Grounds
Colour
National or Ethnic Origin
Race
Religion
Sexual Orientation
Decision Content
Between:
Richard Warman
Complainant
- and -
Canadian Human Rights Commission
Commission
- and –
Marc Lemire
Respondent
- and -
Attorney General of Canada Canadian Association for Free Expression Canadian Free Speech League Canadian Jewish Congress Friends of Simon Wiesenthal Center for Holocaust Studies League for Human Rights of B’nai Brith
Interested parties
Decision
Member: Athanasios D. Hadjis
Date: September 2, 2009
Citation: 2009 CHRT 26
Table of Contents
I. Introduction.
II. What constitutes a discriminatory practice under s. 13 of the Act?.
III. What is the alleged discriminatory material in the present case and does it constitute hate messages within the meaning of the Act?.
A. The JRBooksonline.com material
(i) Did the commission establish that Mr. Lemire communicated, or caused to be communicated, within the meaning of s. 13, the material found on the Jrbooksonline website?.
(ii)Bernard Klatt’s evidence regarding who-is searches and Jrbooksonline.com.
(iii) Conclusions regarding JRBooksonline.com..
B. The Stormfront.org material
(i) Did Mr. Lemire communicate the impugned material by posting it on Stormfront.org?.
(ii)Is the impugned material 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?.
C. The Freedomsite.org material
(i) The Freedomsite message board.
(a) Messages posted on the Freedomsite message board by Craig Harrison.
1. Did Mr. Lemire communicate Mr. Harrison’s messages within the meaning of s. 13?.
2. Did Mr. Lemire cause the impugned messages to be communicated within the meaning of s. 13?.
a) Was Mr. Lemire aware of Mr. Harrison’s messages?.
b) Is it necessary for Mr. Lemire to have known of Mr. Harrison’s messages in order to support a finding that he caused their communication under s. 13?.
c) What is the impact of other Tribunal decisions regarding the liability of website administrators?.
d) Can the liability of message board users be attributed to message board operators as a form of vicarious liability?.
e) Conclusion regarding Mr. Harrison’s messages.
(b) Messages posted on the Freedomsite message board by persons other than Mr. Lemire or Mr. Harrison.
1. Did Mr. Lemire communicate these messages or cause them to be communicated?.
(c) Messages posted on the Freedomsite message board by Mr. Lemire.
1. The Heritage Front press release regarding hearings on immigration reform
2. The Ian Macdonald article.
3. The Heritage Front press release regarding a Toronto Star article.
(d) The Controversial Columnists section of the Freedomsite website.
1. The Doug Collins Column.
a) What is the impugned material found in the Collins column?.
b) Is the matter 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?.
2. The Ottawa is Dangerous Article.
a) Is the matter 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?.
3. The AIDS Secrets column.
a) What is the content of the impugned material in the AIDS Secrets article?.
b) Is the matter 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?.
c) Was the material communicated telephonically or caused to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunications undertaking within the legislative authority of Parliament, within the meaning of s. 13(1)?.
IV. The Constitutional Issue.
A. Freedom of expression (s. 2(b) of the Charter)
(i) The Supreme Court judgment in Taylor.
(a) Does the objective of s. 13(1) continue to relate to concerns that are pressing and substantial in a free and democratic society (the first aspect of the Oakes test)?.
(b) The second phase of the Oakes test - Whether the measure is proportionate to s. 13’s objective.
1. Is the measure rationally connected to the objective?.
2. Does s. 13 minimally impair the freedom of expression guaranteed by the Charter?
a) Are the words hatred and contempt vague and imprecise?.
b) Should s. 13 require proof of intent?.
c) Truth as a defence.
3. Effects.
(c) Conclusions with respect to the claim of infringement on the freedom of expression.
B. Freedom of conscience and religion (s. 2(a) of the Charter)
C. Life, liberty and the security of the person (s. 7 of the Charter)
D. The Canadian Bill of Rights.
V. Conclusion.
I. Introduction [1] The Complainant, Richard Warman, claims that the Respondent, Marc Lemire, has repeatedly communicated, or caused to be communicated, hate messages over the Internet, in breach of s. 13 of the Canadian Human Rights Act. Mr. Warman alleges that these messages discriminate against persons or groups of persons on the basis of their religion, race, colour, national or ethnic origin, and sexual orientation, because the matter exposes Italians, Mexicans, Puerto Ricans, Haitians, francophones, Blacks, First Nation persons, East Asians, non-Whites, Jews, and homosexuals, to hatred or contempt, within the meaning of s. 13(1) of the Act.
[2] Mr. Lemire denies these allegations. He asserts that he did not communicate or cause to be communicated most of the impugned messages, and that, in any event, none of the messages are discriminatory.
[3] Furthermore, Mr. Lemire has made a motion to have s. 13 of the Act, and its related remedial provisions (s. 54(1) and s. 54(1.1)), declared inoperative under s. 24(1) and s. 52(1) of the Canadian Charter of Rights and Freedoms. He alleges that these provisions of the Act violate the freedoms of conscience and religion, as well as the freedoms of thought, belief, opinion, and expression, guaranteed by ss. 2(a) and 2(b) of the Charter. Mr. Lemire also claims that s. 13 violates the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, which are guaranteed by s. 7 of the Charter. He argues that none of these contraventions can be justified under s. 1 of the Charter.
[4] Mr. Lemire additionally contends that s. 13 and ss. 54(1) and 54(1.1) of the Act similarly contravene ss. 1(d), 1(f), and 2 of the Canadian Bill of Rights.
[5] Apart from Mr. Warman, Mr. Lemire, and the Commission, a number of other parties participated at the hearing into this complaint. The Attorney General of Canada exercised his right, pursuant to s. 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, to participate and adduce evidence at the hearing, as well as to make submissions, in respect of the constitutional question. In addition, the Canadian Association for Free Expression Inc. (CAFE), the Canadian Free Speech League (CFSL), along with a group comprised jointly of the League of Human Rights of B’Nai Brith Canada, the Canadian Jewish Congress (CJC), and the Friends of Simon Wiesenthal Center of Holocaust Studies were granted interested party status in the present case, solely with respect to the issue of the constitutionality of s. 13 and any related provisions of the Act.
[6] In the present decision, I will be reviewing s. 13, and its interpretation by the Tribunal and the courts, before proceeding to analyze the impugned material, where I ultimately determine that Mr. Lemire breached s. 13 in only one of the instances alleged against him. I then examine Mr. Lemire’s challenge to the constitutionality of s. 13 and ss. 54(1) and 54(1.1) where I find that these provisions are inconsistent with s. 2(b) of the Charter and that the restrictions imposed on the freedom of thought, belief, opinion and expression are not a reasonable limit within the meaning of s. 1 of the Charter.
II. What constitutes a discriminatory practice under s. 13 of the Act? [7] Section 13 is found within the provisions that set out the proscribed discriminatory practices under the Act, and states as follows:
Hate messages
13.(1) 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.
Interpretation
(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, 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.
Interpretation
(3) 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.
Propagande haineuse
13. (1) Constitue un acte discriminatoire le fait, pour une personne ou un groupe de personnes agissant d’un commun accord, d’utiliser ou de faire utiliser un téléphone de façon répétée en recourant ou en faisant recourir aux services d’une entreprise de télécommunication relevant de la compétence du Parlement pour aborder ou faire aborder des questions susceptibles d’exposer à la haine ou au mépris des personnes appartenant à un groupe identifiable sur la base des critères énoncés à l’article 3.
Interprétation
(2) Il demeure entendu que le paragraphe (1) s’applique à l’utilisation d’un ordinateur, d’un ensemble d’ordinateurs connectés ou reliés les uns aux autres, notamment d’Internet, ou de tout autre moyen de communication semblable mais qu’il ne s’applique pas dans les cas où les services d’une entreprise de radiodiffusion sont utilisés.
Interprétation
(3) Pour l’application du présent article, le propriétaire ou exploitant d’une entreprise de télécommunication ne commet pas un acte discriminatoire du seul fait que des tiers ont utilisé ses installations pour aborder des questions visées au paragraphe (1).
Thus, in order to substantiate a complaint of discrimination under s. 13(1), it must be established that:
A person or group of persons acting in concert communicated telephonically or caused 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 the person or those persons are identifiable on the basis of a prohibited ground of discrimination.
Section 13(2) specifies that s. 13(1) applies to matter that is communicated by means of the Internet.
[8] How have the courts and the Tribunal construed the term hatred or contempt? In Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at 902, the Supreme Court framed the issue as relating to the dissemination of hate propaganda, which the Court said denotes expression that is intended or likely to circulate extreme feelings of opprobrium and enmity against a racial or religious group. The Court went on to quote with approval the interpretation given to the expression hatred or contempt by the Canadian Human Rights Tribunal, in Nealy v. Johnson (1989), 10 C.H.R.R. D/6450 at D/6469 (C.H.R.T.). The Tribunal had found that with the word hatred, the focus is on a set of emotions and feelings which involve extreme ill will towards another person or group of persons. The Tribunal added that to say one hates another means in effect that one finds no redeeming qualities in that person. The Tribunal noted, however, that the notion does not necessarily involve the mental process of looking down on another or others, for it is possible to hate someone who is superior to one in intelligence, wealth or power. Contempt is, by contrast, a term that suggests a mental process of looking down upon or treating as inferior the object of one’s feelings.
[9] The Supreme Court in Taylor, at 928, emphasized that the reference to hatred in Nealy speaks of extreme ill-will and an emotion which allows for no redeeming qualities in the person at whom it is directed. The Court also noted that contempt appears to be viewed as similarly extreme. Thus, the Court concluded, s. 13(1) refers to unusually strong and deep-felt emotions of detestation, calumny and vilification. The Court pointed out, at 929, that the Tribunal is expected to pay heed to the ardent and extreme nature of feeling described in the phrase hatred or contempt, and not allow subjective opinion as to offensiveness to supplant the proper meaning of the section. Nealy also underscored that the use of the term likely to expose, in s. 13(1), means that it is not necessary to prove that the effect of the communication will be that those who hear the messages will direct hatred or contempt against others. Nor is it necessary to show that, in fact, anyone was so victimized.
[10] Generally speaking, human rights complainants are required to first establish a prima facie case of discrimination (Ont. Human Rights Comm. v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O’Malley)). A prima facie case, in this context, is one that covers the allegations made and that, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour, in the absence of an answer from the respondent. Once the prima facie case is established, the onus then shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour. If the respondent does provide a reasonable explanation, the complainant has the burden of demonstrating that the explanation was pretextual and that the true motivation behind the respondent's actions was, in fact, discriminatory.
III. What is the alleged discriminatory material in the present case and does it constitute hate messages within the meaning of the Act? [11] Mr. Warman’s complaint makes reference only to material found on a website known as Freedomsite.org. He alleges in the complaint that Mr. Lemire is the owner and webmaster of the website. The material referred to in the complaint consists mainly of postings on the website’s message board, made by registered users of the site.
[12] At the hearing into the complaint, however, Mr. Warman and the Commission expanded the impugned matter to include material that was posted on websites called JRBooksonline.com and Stormfront.org. They allege that Mr. Lemire was the registered owner of JRBooksonline.com and thus responsible for its content. With respect to Stormfront.org, they allege that Mr. Lemire posted messages on the website’s message board that violated s. 13 of the Act.
[13] I will address each of these sets of impugned messages separately.
A. The JRBooksonline.com material [14] As I just indicated, this material was not mentioned at all on the complaint form, which Mr. Warman filed on November 24, 2003. Mr. Lemire received notice of Mr. Warman’s human rights complaint from the Commission, in late March 2004. Mr. Lemire’s legal counsel (Barbara Kulaszka) replied to the Commission in writing, on April 23, 2004. She noted that all of the material mentioned in the complaint came from the Freedomsite website, and in all but one instance, from the website’s message board. Ms. Kulaszka openly acknowledged that Mr. Lemire is the webmaster and owner of the Freedomsite website, adding that he had removed the entire message board from the main Freedomsite website months earlier, prior to receiving notification of Mr. Warman’s human rights complaint. As a result, the message board was no longer available on the Internet. She added that her client, Mr. Lemire, had removed the one remaining article on the Freedomsite website referred to in the complaint more recently, after the complaint had been filed. Consequently, none of the material referred to in the complaint was available on the Internet any longer. She therefore expressed her hope that the parties could meet and settle the complaint.
[15] Thus, at this stage, the JRBooksonline.com material still did not form part of the complaint. When and how, then, did this material end up before the Tribunal? Hanya Rizk was the Commission employee assigned to investigate Mr. Warman’s complaint. Ms. Rizk testified that on September 13, 2004, she received a telephone call from Mr. Warman. Her investigation into the complaint was still ongoing at the time. He informed her that he had come across the JRBooksonline.com website, which he said was being operated by Mr. Lemire. Mr. Warman asked the Commission to include the material from the website as additional evidence against Mr. Lemire. According to a memo that Ms. Rizk wrote in her file after the call, Mr. Warman also asked the Commission to hold off on informing Mr. Lemire that the Commission knew of the website, until the police take a good look at it. Mr. Warman sent Ms. Rizk documents in support of these new allegations, on October 20, 2004.
[16] Indeed, the Commission did not inform Mr. Lemire of this new evidence or ask him for his comments, prior to the issuance of the investigation report by Ms. Rizk, dated April 14, 2005. Ms. Rizk testified at the hearing that, in retrospect, she should have spoken to Mr. Lemire about these new allegations, before preparing her report. In her investigation report, Ms. Rizk included a section under the heading Marc Lemire and www.JRBooksonline.com and www.Stormfront.org. She described some of the material that she viewed on the JRBooksonline website. She went on to say that the evidence appears to support Mr. Warman’s allegations that the material contained within Marc Lemire’s website and postings through other websites (emphasis added) would likely expose persons to hatred or contempt, based on the enumerated grounds of the Act. She therefore recommended that the Commission request the appointment of a Tribunal to inquire into the complaint. The use of the plural (websites) suggests that Ms. Rizk considered the material found on JRBooksonline.com and Stormfront.org as also forming part of the complaint.
[17] After the complaint had been referred to the Tribunal, Mr. Warman and the Commission filed a Joint Statement of Particulars dated December 7, 2005, pursuant to the Tribunal’s Rules of Procedure. They stated in their Joint Statement of Particulars that on or about October 2004, Mr. Warman visited the JRBooksonline and Stormfront websites. They then went on to allege that Mr. Lemire communicated, or caused to be communicated, the material identified in the complaint that was observed on the websites noted above (emphasis added). In a subsequent disclosure statement to the Tribunal (October 2, 2006), Mr. Warman indicated that in terms of hate messaging material, he was going to be relying on the entirety of the contents of JRBooksonline and Mr. Lemire’s posting on Stormfront.org, in addition to the Freedomsite material.
[18] Thus, although Mr. Warman had made no mention of JRBooksonline.com and stromfront.org in his complaint, by the time the case was progressing towards a hearing, the Commission and Mr. Warman had added this material to the evidence that they intended to bring forward against Mr. Lemire. No proceedings were taken before the Tribunal to have this material excluded. Accordingly, the Commission adduced evidence, at the hearing, of the JRBooksonline material that Mr. Warman claimed to have viewed in October 2004.
(i) Did the commission establish that Mr. Lemire communicated, or caused to be communicated, within the meaning of s. 13, the material found on the Jrbooksonline website? [19] Mr. Warman testified that he began researching the JRBooksonline.com website after viewing a posting somewhere on the web by some unnamed person claiming that Mr. Lemire was the owner of that website. On October 11, 2004, Mr. Warman conducted what is known as a who-is search on a website called checkdomain.com. He explained in his testimony that a who-is search provides access to publicly available information in respect of any website’s registrant and administrative contact. Mr. Warman’s search showed that the registrant and administrative contact for JRBooksonline.com was Marc Lemire. The email and street addresses shown for Mr. Lemire were identical to those that Mr. Lemire readily displayed on the Freedomsite website. Mr. Warman believed, therefore, that Mr. Lemire was the owner and operator of JRBooksonline.com, and he conveyed his findings to Ms. Rizk.
[20] As I already mentioned, Ms. Rizk did not notify Mr. Lemire of Mr. Warman’s new allegations prior to including them in her investigation report of April 14, 2005. On April 25, 2005, Ms. Kulaszka responded to the Commission, with respect to the report. She expressed her surprise at learning that the investigator relied upon new material in the investigation report without having first given Mr. Lemire an opportunity to respond. Ms. Kulaszka followed up with another letter to the Commission on June 3, 2005, in which she explained that Mr. Lemire was not the owner of JRBooksonline.com, that he had no knowledge of its content, and that he was not responsible for creating or editing any of the material on the website. Ms. Kulaszka elaborated that in December 2000, Mr. Lemire had assisted an individual, whom he had met in the United States, to register the JRBooksonline.com domain name. Upon receiving the Commission’s report, Mr. Lemire contacted the Internet Corporation for Assigned Names and Numbers (ICANN) to correct the inaccurate who-is data regarding the website. The who-is search now showed that someone named Jonathan Richardson of Orlando, Florida, was the registrant and administrative/technical contact for the website. Mr. Warman verified this new data and discovered, using an on-line map service and the US Postal Service web site, that the street address does not exist. The contact telephone numbers were clearly false (123-123-1234).
[21] The Commission and Mr. Warman submit that the October 2004 who-is domain search information constitutes prima facie evidence demonstrating that Mr. Lemire was the person or one of a group of persons responsible for the communication of the material posted on the JRBooksonline website. They also claim that no reasonable explanation has been given in answer to this evidence. I am not, however, persuaded by either of these contentions.
[22] To begin with, I do not find that the minimal evidence presented by Mr. Warman to link Mr. Lemire with JRBooksonline.com establishes prima facie that Mr. Lemire engaged in the discriminatory practice contemplated in s. 13. The mere fact that the who-is registry stated that Mr. Lemire was the registrant and administrative contact for the website does not demonstrate, even on a prima facie basis, that he was actually communicating or causing to be communicated the impugned material on the website. I note that an advisory comment that accompanied the who-is search results filed in evidence stated clearly that the data was being provided for informational purposes only, regarding domain name registration records. The who-is registry explicitly stated that it did not guarantee the information’s accuracy.
[23] These who-is search documents do not demonstrate that the registrant or administrative contact has control over the content of a website’s material, in such a way that he or she could be deemed to be communicating it or causing it to be communicated.
[24] Where the Tribunal has in the past found someone to have communicated material within the meaning of s. 13 through a website under his or her control, these findings were never based solely on the product of a who-is search. (see, for instance, Warman v. Kyburz, 2003 CHRT 18 (Kyburz) at paras. 7-8; Warman v. Warman, 2005 CHRT 36 (Eldon Warman No. 1) at paras. 16-18; Warman v. Kulbashian, 2006 CHRT 11 (Kulbashian) at paras. 65 and following).
[25] Mr. Lemire did admit, through his legal counsel, that he had participated in the creation of the website. Is there indication, however, of any further connection with the website? Mr. Warman did not present any additional evidence other than to suggest that Mr. Lemire must be the communicator given his alleged lengthy overall involvement of the neo-Nazi movement. Mr. Warman also argued that the website’s material is consistent with the hate messages found on the Freedomsite website, which Mr. Lemire readily admits owning and operating.
[26] It is arguable if I have any evidence before me actually documenting Mr. Lemire’s lengthy overall involvement in the neo-Nazi movement, but even if I had such evidence, and even if the Freedomsite website were shown to be consistent with JRBooksonline, I do not see how these factors would help establish prima facie that Mr. Lemire was the person responsible for the posting of the material on the JRBooksonline was Mr. Lemire. The Commission led evidence, derived from data compiled by the Simon Wiesenthal Centre, that between 1999 and 2006, the number of hateful websites on the Internet had ballooned from 1400 to over 6000, so Mr. Lemire would not have been alone, if he were to have been found to have posted material that was consistent with JRBooksonline.com. Furthermore, as I previously indicated, the Commission and Mr. Warman did not lead any evidence other than the who-is search result linking Mr. Lemire with the JRBooksonline.com website. There is no evidence of his name or other information identifying him appearing anywhere on the website, or of any clickable link to the Freedomsite website or Mr. Lemire’s email address, for instance. There is no evidence, for that matter, of any reference to JRBooksonline.com appearing anywhere on the Freedomsite website either.
[27] I find that the evidence adduced by the Commission and Mr. Warman is not, to paraphrase O’Malley, complete and sufficient to justify a finding that Mr. Lemire is the operator of the JRBooksonline website, let alone that he communicated or caused to be communicated the matter found on that website. It has therefore not been established prima facie that Mr. Lemire committed the discriminatory practice contemplated in s. 13 with respect to the JRBooksonline website. However, even if a prima facie case had been established, I would find that Mr. Lemire has provided a reasonable explanation.
[28] Ms. Kulaszka explained in her letter of June 3, 2005, to the Commission, that in 2000, Mr. Lemire had helped someone, whom he had met in the United States, register the website’s domain name, and that Mr. Lemire was not the website’s owner, nor was he responsible for the material found thereon. Mr. Lemire opted not to testify at the hearing, so the only source for this explanation remains Ms. Kulaszka’s letter. Mr. Warman argues that I should draw a negative inference from Mr. Lemire’s choosing not to testify. His decision undermines his capacity to bring forward any legitimate defence. Mr. Warman called attention to my comments in Warman v. Kulbashian, 2006 CHRT 11 at 115, where I held that a Tribunal should not take stock of mere hints or innuendos that a respondent may toss in with his leading questions during the cross examination of other parties’ witnesses.
[29] I disagree with Mr. Warman’s submission. To begin with, a Tribunal can receive and accept any evidence and other information that it sees fit, whether by oath, affidavit, or otherwise, irrespective of whether the evidence would be admissible in a court of law (s. 50(3)(c) of the Act). The Tribunal would therefore not be prevented from considering Ms. Kulaszka’s letter as evidence in this case. Moreover, Mr. Lemire has actually led evidence through his examination and cross examination of witnesses, to support his explanation. This is not an instance of mere hints or innuendos. As was pointed out in Chippewas of Kettle & Stony Point First Nation v. Shawkence, 2005 FC 823 at paras. 38-46, there is no legal obligation on a decision-maker to draw an adverse inference from a failure to testify. Besides, these are not criminal proceedings. Nothing prevented Mr. Warman or the Commission from summoning Mr. Lemire to testify and answer questions regarding his involvement with JRBooksonline.com if they believed his testimony would have enabled them to establish that Mr. Lemire’s explanation is pretextual (see Chippewas of Kettle & Stoney Point First Nation at para 41). I therefore do not find sufficient cause to draw an adverse inference from Mr. Lemire’s failure to testify.
[30] Other than the who-is report, there is no evidence demonstrating a link between the JRBooksonline website and Mr. Lemire. Mr. Warman admitted during cross-examination that he never conducted an electronic search on the JRBooksonline website for Mr. Lemire’s name, while also acknowledging that he did not recall ever having seen Mr. Lemire’s name mentioned anywhere during his examination of the website. This stands in stark contrast to the material regarding Mr. Lemire found on the Freedomsite and Stormfront websites. Mr. Lemire typically identifies his messages with his name in full, and his message board postings usually contain a photograph of himself, rather than a drawing, logo, or other image (avatar) used by most other contributors to message boards. The Freedomsite website contains numerous identified pictures of Mr. Lemire. There are frequent mentions of the street address for the Freedomsite website’s operations where donations can be made to help maintain the website. Mr. Lemire also included that address in the Stormfront.org posting that constitutes one of the other impugned hate messages in this case. Mr. Lemire similarly includes his email address containing his full name, in his postings. He is not at all cryptic with respect to his identity. The Commission filed in evidence an on-line petition from a website that is unrelated to this complaint. Mr. Lemire signed the petition with his name in full and listed his email address as [email protected].
[31] It is thus evident that Mr. Lemire did not hide his identity or his association with the Freedomsite.org website, where all of the material alleged against him in Mr. Warman’s signed complaint was found.
[32] On the other hand, there is no evidence before me of Mr. Lemire’s name ever appearing on the JRBooksonline.com website. Mr. Warman testified that he personally did not see anything on the website that names Mr. Lemire or indicates that he owns the website. Mr. Warman also stated that he made no attempt to click on the website’s contact link to send a message to the website, which could have perhaps provided some clue as to who the website’s owner, webmaster, or operator was.
(ii) Bernard Klatt’s evidence regarding who-is searches and Jrbooksonline.com [33] The only evidence that we are left with, therefore, linking Mr. Lemire to JRBooksonline.com, is the October 2004 who-is report containing the contact information for the website’s registrant and administrative contact. Bernard Klatt was qualified as an expert witness with respect to the Internet and computers, including functions associated with being an Internet Service Provider (ISP). He testified that who-is searches only definitively indicate whether or not a website domain name is registered with the authoritative body that governs these registrations, ICANN. If the name has not been registered, it is available for someone else to register it. The remaining information that accompanies a domain name registration, however, does not prove who owns the website or uploads content to it, as suggested by the disclaimers that accompany who-is searches, which indicate that the information is provided as is without any guarantees as to its accuracy. Ms. Rizk testified that she was told, during her training at the Commission on the use of who-is searches to investigate complaints involving websites, that the results only indicate who could be the owner of the site. It was just one of the means to be used in determining the owner of a website.
[34] To demonstrate how unreliable this information can be, two who-is searches were entered into evidence containing information about the domain name registrations of two websites. The who-is searches indicated that Mr. Warman was the registrant of both of these websites. Mr. Warman testified that he had never heard of these websites before. Indeed, as Mr. Klatt explained in his testimony, he witnessed Mr. Lemire create both registrations. Thus, while the who-is searches were indicating that Mr. Warman was the registrant for the domain names of both websites, he was, in fact, not associated with any of them.
[35] Mr. Klatt also testified that he used a trace route utility to determine which ISP hosts the JRBooksonline.com website. This can be learned from the Internet Protocol (IP) address (made up of a series of digits) that is assigned to any given website. He found that the JRBooksonline.com address was within the range of IP addresses held or hosted by a firm in Dallas, Texas. The IP address for Freedomsite.org does not fall within this range, and in fact, Ms. Rizk testified that when she ran a trace route utility with respect to the Freedomsite website, she discovered that it was being hosted by a firm in Denver, Colorado.
[36] In cross-examination, Mr. Warman acknowledged that Freedomsite.org had a different look and feel than the JRBooksonline.com website. The Freedomsite website was more cluttered, and contained audio and video files, as well as an on-line store and a donation link, all of which were absent from JRBooksonline.com. Mr. Warman described the latter website as being a fairly straightforward website. Mr. Klatt made a similar comparison as well. He noted that the respective visual presentations of both websites differed significantly. Freedomsite.org used composted banner images (where several images appear to be one), JAVA script (which enabled words to be highlighted as the user passed a mouse curser over them), a right hand column format, and a cascading style sheet (which controlled how the visual information was presented). In contrast, Mr. Klatt found the JRBooksonline.com website significantly more rudimentary or simple in terms of stylistic elements used in presenting information. It had a relatively long home page, indicating less sophistication, the graphic image positioning was simpler, and it contained large blocks of text on a single wallpaper background image for the whole web page.
[37] These distinctions suggest that the person responsible for the creation of JRBooksonline.com and the posting of its material is not the same as the person responsible for Freedomsite.org (i.e. Mr. Lemire, by his own admission).
[38] The expert evidence of Mr. Klatt was not contradicted by any other evidence led at the hearing. In fact, neither the Commission nor Mr. Warman called any expert in respect of the Internet or computers to testify. I found Mr. Klatt’s testimony to be very credible. His answers were straightforward. He was frank in stating that he could not provide any information regarding areas in which he lacked any in-depth knowledge, including the internal operations of certain Internet Service Providers in respect of which he was questioned. Mr. Warman argued strenuously in his final argument, however, that I should completely ignore the evidence of Mr. Klatt, principally because of determinations made in previous Tribunal decisions and, in one instance, by the Federal Court. Mr. Warman alleges that these findings strip Mr. Klatt of any remaining credibility and should have brought to an end his ability to testify as an objective witness.
[39] A Tribunal should not, however, refuse to assess the credibility of witnesses before it merely because their credibility was found wanting in another proceeding. As the Saskatchewan Court of Queen’s Bench stated in Huziak v. Andrychuk (1977), 1 C.R. (3d) 132 (cited with approval in Canada (Attorney General) v. Grover, 2004 FC 704 at para. 44; Grover v. National Research Council of Canada, 2009 CHRT 1 at para. 103):
The fact that a judge disbelieves a witness in one case does not necessarily mean that he will disbelieve the same witness if he appears in another case….Each case stands alone.
[40] Besides, upon closer examination, it is clear that the prior decisions did not strip Mr. Klatt of any credibility. In Citron v. Zündel (2002), 41 C.H.R.R. D/274, Mr. Klatt testified as an expert in the field of telecommunications and the Internet. His evidence apparently centred on the issue in that case of whether communications by telephony encompassed Internet communications. That case had arisen prior to the amendments to the Act that explicitly extended the application of s. 13 to the Internet. Mr. Klatt’s evidence was apparently contradicted by that of an expert witness called by the Commission. The Tribunal preferred the Commission witness’s evidence over Mr. Klatt’s, having found the latter to be an advocate for the respondent’s proposition (i.e. that telephonic communications were limited to the transmission of voice or sound), as well as argumentative, evasive, and unable to answer elementary questions in his field. In contrast, Mr. Klatt did not display any of these attributes in his testimony before me. Moreover, as I already stated, his opinion evidence before me was not contradicted. It also related to an area of technical expertise that differed to some extent from the matters dealt with in Citron.
[41] Mr. Warman also referred me to the Tribunal decision in Schnell v. Machiavelli, (2002), 43 C.H.R.R. D/453, which sets out, according to Mr. Warman, Mr. Klatt’s business association with hate websites. This association was equally explored during Mr. Klatt’s cross-examination before me on his qualifications as an expert. The excerpt from Schnell, quoted by Mr. Warman, explains that in the mid-1990’s, Mr. Klatt had agreed to allow his ISP business to host certain websites that were controversial or banned in other countries, because he believed in freedom of expression (Schnell at para. 132). Certain groups (including the Simon Wiesenthal Centre) mobilized to prevent him from continuing to offer his services to these websites. Mr. Klatt ended up selling his business and claimed that he lost his standing within his community. This evidence was also led before me during Mr. Klatt’s cross-examination and I have taken it into account in making my findings on his credibility.
[42] Mr. Warman also mistakenly asserted in his submissions that I had previously found Mr. Klatt’s credibility lacking in CRARR v. www.bcwhitepride.com, 2007 CHRT 20. In fact, this was a preliminary ruling issued by another Tribunal member, Pierre Deschamps, who found Mr. Klatt to have been evasive in his answers to his links and association with the white supremacy movement (at para. 53), and in elaborating upon his relationship with the respondent in that case. Similar issues did not develop before me in the present case. Mr. Klatt was open and forthcoming in his evidence in chief and in cross examination, regarding his connections with any of the individuals about whom he was questioned, including CAFE’s repr