T-209-92
Canadian Human Rights Commission (Applicant)
v.
Canadian Liberty Net and Derek J. Peterson
(Respondents)
INDEXED AS: CANADA (HUMAN RIGHTS COMMISSION) V.
CANADIAN LIBERTY NET (TD.)
Trial Division, Muldoon J.—Vancouver, February 5
and 6; Toronto, March 3, 1992.
Human rights — Respondents' computer operated voice
mail system containing messages as to superiority of white
race, questioning numbers killed in Holocaust, recommending
bringing in "boisterous young Germans to set matters
straight" rather than more Third World immigrants — CHRC
having requested appointment of Human Rights Tribunal to
enquire into complaints — CHRC moving for injunction
restraining respondents from telephonic communication of hate
messages pending Tribunal's final order — Matter of first
impression in Canada — Whether Court having jurisdiction
and, if so, whether injunction should be granted.
Federal Court jurisdiction — Trial Division — CHRC seek
ing injunction to restrain communication of hate messages by
voice mail system pending final order of Canadian Human
Rights Tribunal — Reference to criteria for jurisdiction estab
lished by S.C.C. in ITO case — Federal Court Act, ss. 25, 44
statutory grants of jurisdiction — Canadian Human Rights Act
existing body of federal law on which case based — Parlia
ment having given Federal Court role of enforcing Tribunal
orders — Nothing forbidding CHRC from initiating originating
motion under its constituent statute — Tribunal having power
to make cease and desist order only at conclusion of inquiry —
Court having power to make interlocutory order.
Injunctions — CHRC moving for injunction to restrain com
munication of hate messages pending final order by Canadian
Human Rights Tribunal — Tribunal having power to make
cease and desist order only at conclusion of inquiry — Under
Act, s. 44 Court may grant injunction in any case where just or
convenient — Case law on free-standing injunctions reviewed
— R. 469 not preventing assumption of jurisdiction where
legitimate jurisdiction in aid — Common law, legislation (or
both) giving superior court jurisdiction to prevent, flouting of
law at interlocutory stage — Reference to work on injunctions
as to recourse to that remedy where continuous flouting of stat
ute for which statutory penalties inadequate deterrence —
CHRC entitled to seek injunction as guardian of federal human
rights legislation and not as relator under Attorney General's
supervision — Position of A.G. different in federal than in uni
tary state — Applicant having shown not only serious question
to be tried but made out prima facie case — Respondents'
Charter right to freedom of speech limited when in collision
with others' Charter rights.
This was an application for an interlocutory injunction to
restrain the respondents, pending a final order by a Human
Rights Tribunal in proceedings now before it, from communi
cating, by telephone, messages likely to expose persons to
hatred or contempt by reason of ethnicity or religion, contrary
to subsection 13(1) of the Canadian Human Rights Act (the
Act).
The respondents operate a voice mail system the advertised
purpose of which is "to promote cultural and racial awareness
among White people". The caller first hears a recorded voice
advise that persons who might be offended should hang up,
then a menu of messages. One message, "Kosher Tax" relates
that some foods are subject to increased costs to make them
acceptable to orthodox Jews, another that Hollywood is domi
nated by Jews, a third that the number of persons said to have
been killed in the Holocaust has been much exaggerated.
Another recording, in commenting on the violence around an
Edmonton high school attributed to the "Brown Nation" gang,
concludes: "Perhaps what we need in Canada now is not more
Third World immigrants, but a couple of thousand boisterous
young Germans to set matters straight."
Complaints were filed with the Commission and, after investi
gation, the Commission requested the President of the Human
Rights Tribunal Panel, under paragraph 44(3)(a) of the Cana-
dian Human Rights Act, to appoint a Human Rights Tribunal to
inquire into the complaints.
Held, the application should be allowed.
The criteria for Federal Court jurisdiction set out in ITO—
International Terminal Operators Ltd. v. Miida Electronics
Inc. et al. are met. Sections 25 and 44 of the Federal Court Act
provide a statutory grant of jurisdiction. The Canadian Human
Rights Act is an existing body of federal law which is essential
to the disposition of the case. The condition in section 25 of
the Federal Court Act that no other court have jurisdiction to
grant the remedy is satisfied, as section 57 of the Canadian
Human Rights Act confers on the Federal Court alone the
power to give the force of a judgment to an order of a Human
Rights Tribunal or Review Tribunal. Nor can the Tribunals
themselves give the remedy sought, as the Act empowers them
to order cessation of a discriminatory practice only at the con
clusion of an inquiry.
Under section 44 of the Federal Court Act, the Court may
grant an injunction in all cases in which it appears to be just or
convenient, and not only where there is an action before the
Court. Here, there can be no action to which the application
would be ancillary, as the jurisdiction to adjudicate on the sub
stantive complaints resides in the Tribunal, not the Court. The
Court may, in particular, grant an injunction at the instance of
the appropriate public official to restrain a threatened violation
of the law where there is no other available remedy to prevent,
in time, serious harm to the public. Although that official has
usually been the Attorney General, the Commission does not
need the support of the chief law officer, as it is independently
the guardian of the federal human rights legislation: the Com
mission is required by its constituent statute to endeavour to
discourage and reduce discriminatory practices.
Charter rights, such as the respondents' freedom of expression,
are inherently limited at the point where they collide with other
Charter rights. Those rights are guaranteed by the State, subject
only to reasonable limits prescribed by law as provided by sec
tion I. The Act fulfils the requirement that the limitation be
prescribed by law, and its subsection 13(1) has been held, in
Canada (Human Rights Commission) v. Taylor, to be a reason
able limit on freedom of expression. The balance of
convenience favours the protection of persons from disparage
ment for their ancestry over the temporary loss of freedom of
expression.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part 1
of the Constitution Act, 1982, Schedule B, Canada Act
/982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 2(b), 7, 12, 15, 24, 26, 27, 28, 29, 32.
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss.
3(1), 13, 27, 40(4) (as am. by R.S.C., 1985 (I st Supp.),
c. 31, s. 62), 44(3)(a) (as am. idem, s. 64), 53(2), 54(1),
56(2), 57, 58, 67.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], ss. 92(14), 101.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 25, 44.
Federal Court Rules, C.R.C., c. 663, RR. 6 (as enacted by
SOR/90-846, s. 2), 337(2)(b), 469.
Supreme Court of Judicature (Consolidation) Act, 1925
(U.K.) 1925, 15 & 16 Geo. 5, c. 49, s. 45(l).
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO—International Terminal Operators Ltd. v. Miida
Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28
D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241.
CONSIDERED:
Siskina (Owners of cargo lately laden on board) v. Distos
Campania Naviera S.A., [1979] A.C. 210 (H.L.); Chief
Constable of Kent v. V, [1983] Q.B. 34 (C.A.); Amchem
Products Inc. v. British Columbia (Workers' Compensa
tion Board) (1989), 65 D.L.R. (4th) 567; [1990] 2
W.W.R. 601; 42 B.C.L.R. (2d) 77; 38 C.P.C. (2d) 232
(S.C.); affd (1990), 75 D.L.R. (4th) 1; [1991] 1 W.W.R.
243; 50 B.C.L.R. (2d) 218; 44 C.P.C. (2d) I (C.A.); R. v.
National Association of Broadcast Employees and Techni
cians, [1980] 1 F.C. 716 (T.D.); revd [1980] 1 F.C. 820;
(1979), 107 D.L.R. (3d) 186; 79 CLLC 14,231; 31 N.R.
19 (C.A.); Attorney-General v Chaudry, [1971] 3 All ER
938 (C.A.); B.C. (A.G.) v. Wale, [1987] 2 W.W.R. 331;
(1986), 9 B.C.L.R. (2d) 333; [1987] 2 C.N.L.R. 36 (C.A.);
Thorson v. Attorney General of Canada et al., [1975] I
S.C.R. 138; (1974), 43 D.L.R. (3d) 1; 1 N.R. 225; NWL
Ltd v Woods, [1979] 3 All ER 614 (H.L.); Canada
(Human Rights Commission) v. Taylor, [1990] 3 S.C.R.
892; (1990), 75 D.L.R. (4th) 577; 13 C.H.R.R. D/435; 3
C.R.R. (2d) 116.
REFERRED TO:
McNamara Construction (Western) Ltd. et al. v. The
Queen, [1977] 2 S.C.R. 654; (1977), 75 D.L.R. (3d) 273;
13 N.R. 181; Quebec North Shore Paper Co. et al. v.
Canadian Pacific Ltd. et al., [1977] 2 S.C.R. 1054;
(1976), 9 N.R. 471; R. v. Thomas Fuller Construction Co.
(1958) Ltd. et al., [1980] I S.C.R. 695; (1979), 106
D.L.R. (3d) 193; 12 C.P.C. 248; 30 N.R. 249; Stafford
Borough Council v Elkenford Ltd, [1977] 2 All ER 519
(C.A.); Nova Scotia Board of Censors v. McNeil, [1976] 2
S.C.R. 265; (1975), 12 N.S.R. (2d) 85; 55 D.L.R. (3d)
632; 32 C.R.N.S. 376; 5 N.R. 43; Minister of Justice of
Canada et al. v. Borowski, [1981] 2 S.C.R. 575; (1981),
130 D.L.R. (3d) 588; [1982] 1 W.W.R. 97; 12 Sask. R.
420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24 C.R. (3d) 352;
39 N.R. 331; American Cyanamid Co. v. Ethicon Ltd.,
[1975] A.C. 396 (H.L.); Irwin Toy Ltd. v. Quebec (Attor-
ney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R.
(4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167.
AUTHORS CITED
Halsbury's Laws of England, vol. 24, 4th ed., London:
Butterworths, 1979.
Sharpe, Robert J. Injunctions and Specific Performance,
Toronto: Canada Law Book Ltd., 1983.
Spry, I.C.F. The Principles of Equitable Remedies: Spe
cific Performance, Injunctions, Rectification and Equi
table Damages, 4th ed., Toronto: Carswell Co., 1990.
APPLICATION for an injunction interlocutory to
proceedings before a Human Rights Tribunal. Appli
cation allowed.
COUNSEL:
Joseph J. Arvay, Q.C., Victoria, for applicants.
Douglas H. Christie, Victoria, for respondents.
SOLICITORS:
Arvay, Finlay, Victoria, for applicant.
Douglas H. Christie, Victoria, for respondents.
The following are the reasons for order rendered in
English by
MULDOON J.: According to the counsel on each
side, this is a matter of first impression in Canada.
That is virtually the case.
The applicant (sometimes hereinafter, Commission
or CHRC), moves for an order that the respondents
(hereinafter sometimes the Net, and Peterson) by
themselves or by their servants, agents or otherwise,
anyone having knowledge of the order, be restrained
and enjoined
... until a final order is rendered in the proceeding before the
Canadian Human Rights Tribunal [the tribunal], from commu
nicating or causing to be communicated, by telephonic means,
messages that are likely to expose persons to hatred or con
tempt by reason of the fact that those persons are identifiable
on the basis of race, national or ethnic origin, colour or relig
ion and in particular the message as attached as Exhibit "B"
(Appendix I) to the affidavit of Lucie Veillette sworn the 23rd
day of January, 1992.
The grounds of the originating motion are stated to
include sections 25 and 44 of the Federal Court Act
[R.S.C., 1985, c. F-7]; and sections 13, 27 and 57 of
the Canadian Human Rights Act, R.S.C., 1985, c.
H-6. In support of this motion are filed the affidavits
of L. Veillette, above mentioned, of Réal Fortin
sworn January 23, 1992 and of Gordon Thompson
sworn January 24, 1992.
This is a free-standing motion for an interlocutory
injunction, there being no statement of claim lodged
in this Court by the applicant. There have, however,
been five complaints filed by three complainants with
the CHRC concerning the impugned telephone
messages. Four of the complaints allege that the tele
phone messages denigrate Jewish and non-white per
sons; the fifth complaint alleged again denigration of
non-whites. Those messages are described by that
party's counsel as "hate propaganda", to summarize
the cumulative inclusionary effect of the statutory
prose of subsections 3(1) and 13(1) of the Canadian
Human Rights Act (sometimes hereinafter, the Act).
FACTS:
According to the complainants, by telephoning an
advertised telephone number in British Columbia,
one can listen to a "menu" of messages which, they
urge, are likely to expose persons to hatred or con
tempt by reason of prohibited grounds of discrimina
tion. The telephone number is advertised in a small
journal which claims that its approximate readership
is "12,000 and growing", as disclosed by exhibit "A"
to Réal Fortin's affidavit.
Pertinent passages from the article, "Canadian Lib
erty Net", in the small journal run as follows:
Canada's first computer operated voice mail system has made
its debut. It was launched to promote cultural and racial aware
ness among White people. The system is run completely free
of charge, but there are expenses. The system is operated on
donations and donations are needed all the time.
The purpose of Liberty Net is to provide a forum for the free
exchange of ideas and opinions from people and organizations
across North America and the world. The system contains sev
eral messages from various "freedom" movement leaders from
as far away as Australia, while also dealing with issues closer
to home.
Although Liberty Net do [sic] not believe they have broken
any laws, they are under threat of being closed down. Upon
discovery of the phone line, an investigation was launched by
the Office of the Attorney General of B.C. and two complaints
have been filed with the Canadian "Human" Rights Commis
sion.
[Two of the three complainants] claim they have been discrim
inated against by the Liberty Net. The pair say the system con
tains messages which claim that the "holocaust" never hap
pened, that non-White aliens are importing crime into the
country, and that, heaven forbid, there is a "Kosher" food tax
levied on all consumers. The human rights investigation was
completed and recommendations made that the matter be dealt
with before a human rights tribunal (here we go again).
This has yet to be decided. It will be interesting to see how
many hundreds of thousands of tax-dollars are wasted on yet
another of these witchhunts!
This system is available to anyone free of charge, but Liberty
Net need [sic] help with operating expenses. Your financial
contributions would be greatly appreciated. The number to dial
is (604) ... [here recited] ... to hear a message or to leave
one.
The text of the various messages transcribed by
CHRC investigators is too voluminous to recite here
in full. However, an investigator made a synopsis
after listening to a Net program, and it, with rare
exception conforms with the message transcriptions.
It is replicated in Ms. Veillette's exhibit "C" at
page 00031, which, with the Court's few corrections
in [square] parentheses, runs thus:
13. The investigator called the message line, from 12-15
(inclusive) December 1991. The selection of messages
appeared to be identical each time. The system is structured as
follows:
a) A taped voice introduces the Canadian Liberty Net, a com-
puter-operated message line. The voice says that those people
who would be offended by the contents should exit the system
and not call back.
b) The system then offers a "menu" of messages, selectable
with a touch-tone telephone. The "main menu" offers "Leader-
ship", "History", "Miscellaneous Messages," and "Leave a
Message."
c) "Leadership" offers Canadian and American messages.
d) In one of the two Canadian messages, an update is provided
regarding the Munich trial of Ernst [Ziindel]. The other mes
sage is from the "Heritage Front," which opposes the problems
that "aliens" bring to Canada, giving a Toronto box number
where listeners can write for more material.
e) There were three American leadership messages. The first is
from the National Alliance, based in West Virginia. This group
attributes western civilization to white people who kept their
superior race apart from the many tribes and races of "sub-
men" who threaten the existence of whites via race-mixing.
The second message is from Tom Metzger of White Aryan
Resistance [W.A.R.], who self-censors his messages and
includes a California mail address, from which Metzger states
he can smuggle in some "free speech" across the border. The
third message is from Fred Leuchter, ["an expert on execution
technology"], who claims that he has been victimized by a con
spiracy [to destroy his credibility because of his previous testi
mony about Auschwitz, Berkenau etc.].
f) The "History Menu" contains two messages, both denying
the Holocaust, [or, at least, the numerical extent of the Nazis'
victims].
g) The "Miscellaneous Messages Menu" has four categories.
In "Music," the speaker indicates that European music [and
architecture are] being suppressed by modern [trends] which
impede creativity. In "Kosher Tax," the speaker states that
some foodstuffs are subject to increased costs in order to have
them certified acceptable to orthodox Jews. This message con
cludes that the consumer should avoid kosher products, which
can be identified by product labels. In "Hollywood Name
Changers," a list of apparently Jewish-sounding (i.e. suffixed
with "stein", "ski", "man") names is provided along with the
changed versions. In "Masters of Hollywood," the speaker
states that Hollywood is dominated by Jews, citing examples
of various past and present movie executives with Jewish-
sounding names.
h) The "Leave a Message" selection connects the caller to a
voice-mail box for the Canadian Liberty Net.
That these messages seem to this Court to be fatu
ous and shallow, quite apart from their racial and
religious disparagement of all of humanity except for
the "pure-euro", will be considered later in these rea
sons.
According to the affidavit of human rights officer
Yamauchi, certain additional messages were available
to be heard on January 28, 1992, when he dialled the
Canadian Liberty Net telephone number. They are
transcribed in exhibit "A" to his affidavit sworn on
the next day. Those additional messages do indeed
denigrate the value of non-"aryan" human life in sev
eral ways. Talking of the alleged "six million killed
in the Holocaust", the message concludes horrifically
and fatuously:
Perhaps if Dr. Samuel Kerkovsky took the time to calculate
more accurately, he would find only 70,000 names in the
Auschwitz death books, not 500,000. These books also contain
no mention of deaths by lethal gas.
Is it possible that the western Allies and the media
and the "lest we forget" organizations have wronged
those earnest hard-working Nazis of the nineteen-
thirties and 'forties for slaughtering fewer thousands
of fellow human beings than alleged? Tut-tut.
The pertinent passages of another additional mes
sage emitted on the Canadian Liberty Net are of such
sinister implication and incitement to violence as to
warrant repetition here:
Recently in Edmonton, a gang calling itself Brown Nation
terrorized white students at high schools.... The following
excerpts are from the Calgary Herald, November 30, 1991:
Police have warned Bonnie Doon high school students in
Edmonton to travel in pairs for protection, after a new teen
age gang armed with guns, crowbars and baseball bats vis
ited their school. The incident marked the latest in a string
of attacks by Brown Nation gang members who had
swarmed down on at least five south-side schools this fall.
"Anybody white they'll go after", said Barb, a Grade Twelve
student. "They won't get you if you're coloured."
Brown Nation is made up from more than one hundred East
Indian, Hispanic, Chinese, black and Pakistani youths each
from 15 to 21, mainly from Harry Ainley and J. Percy Page
high schools. Some don't go to school.
"Gang members put a mark on certain people and get them
at school, bus stops, or just walking around", said Dan Bate-
man, Mr. Bateman being a Guidance Counsellor at Bonnie
Doon. "They basically hit the individuals", said Mr. Bate-
man.
Bonnie Doon students and teachers were terrified Monday,
November 25, when more than fifty Brown Nation members
arrived in at least seven different vehicles and a pickup truck
during lunch.
"They had crowbars and baseball bats and the teachers had
to break it up", said Samantha, a Grade Eleven student.
Of course, not a peep has been said over this incident
outside of Calgary, because the papers are too busy writing
about the German youths, say, terrorizing foreigners in Ger-
many. If a gang of fifty to one hundred whites went to various
schools beating up and threatening non-white students, the War
Measures Act would be introduced and the army called in to
quell the disturbance. Perhaps what we need in Canada now is
not more Third World immigrants, but a couple of thousand
boisterous young Germans to set matters straight.
To do what? To counter-attack? One does not take
from that message any inference of challenging the
others to a debating contest or a soccer match or even
to a demonstration of love and respect "to set matters
straight". The message does not call upon law-abid
ing non-violent Canadians of German origin to do
anything, but rather it calls for the immigration of
thousands of "boisterous young Germans", meaning
what? Neo-Nazis? To terrorize "foreigners" in
Canada? Despite the message's inconsistencies
(allegedly victimizing all whites at random, and spe
cially "marked" individuals), it is a clear demonstra
tion of a secular anti-social evil. Racism begets
racism; and violence. Violence begets violence in
return.
Presumably the respondents could just go along
adding to the repertoire of the messages so as to
flummox the CHRC's attempts to cause a tribunal to
deal with a crystallized, up-to-date complaint or com
plaints. Perhaps "flummox" is too harsh and judg
mental a word. Perhaps the respondents are just con
tinuing innocently to transmit by telephone their
brand of "enlightenment" and "good-citizenship"
simply as the thoughts occur to them without any
ulterior motive. Needless to emphasize, to he consti
tutionally protected, speech and expression do not
need to evince enlightenment and good citizenship.
Canadian Liberty Net is not shown to be a corpora
tion. It appears to be "a group of persons" contem
plated in section 13 of the Act. How numerous they
are is not shown. From Veillette's affidavit, exhibits
"D", "E" and "F", Yamauchi's affidavit, paragraph 4,
and Vicki Lynn Hobman's affidavit, paragraph 4, the
following facts are known. Derek J. Peterson sub
scribes to, or rents, the telephone line involved
herein. Cori Keating rents the post office box by
which the Net communicates by mail. Tony McAleer
operates their facsimile communications machine.
As a result of the complaints and pertinent investi
gations, the Commission, on January 17, 1992,
decided, pursuant to paragraph 44(3)(a) of the Act, to
request the President of the Human Rights Tribunal
Panel to appoint a Human Rights Tribunal to enquire
into the complaints, and pursuant to subsection 40(4)
to deal with them together. Ms. Veillette wrote to the
President, Sidney Lederman, Q.C. on January 20,
1992, conveying the CHRC's request.
Two general issues are here presented to the Court:
could the Court enjoin the respondents' impugned
activities; and if so, should the Court enjoin the
respondents' impugned activities? The first issue was
raised by the respondents' counsel as a preliminary
objection to the Court's having any jurisdiction to
grant an injunction in these circumstances.
JURISDICTION:
The respondents' counsel argues that the two pro
visions of this Court's constituent statute, sections 25
and 44 do not help to invest the Court with the power
to do what the applicant seeks. The CHRC, it will he
remembered, has not commenced a lawsuit by means
of a statement of claim in this Court. This Court, too,
with every other court in Canada, lacks the jurisdic
tion to make the adjudication, cease-and-desist pro
nouncement or other dispositions which the Act
reserves to the Human Rights Tribunal (hereinafter
sometimes, the Tribunal).
The two provisions of the Federal Court Act relied
upon by the applicant in toto, like that Act itself,
were enacted by Parliament pursuant to section 101
of the Constitution Act, 1867 [30 & 31 Viet., c. 3
(U.K.) (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act /982, Item
1) [R.S.C., 1985, Appendix II, No. 5]]:
101. The Parliament of Canada may, notwithstanding any
thing in this Act, from time to time provide for the constitu
tion, maintenance, and organization of a general Court of
Appeal for Canada, and for the establishment of any additional
Courts for the better administration of the laws of Canada.
This constitutional legislation has been interpreted
several times by both the Judicial Committee of the
Privy Council and the Supreme Court of Canada. All
Canadian courts must loyally abide by the Supreme
Court's interpretation of this provision, but it is diffi
cult not to notice that in three momentous judgments'
which drastically curtailed this Court's jurisdiction to
entertain Crown counterclaims and third-party
notices, the previous Supreme Court benches which
decided them (with Mr. Justice Martland, alone, dis
senting in the last) simply did not consider, interpret
or deal with the emphasized expressions above
recited.
When one compares Parliament's power under
section 101 to create this Court, and the provincial
legislatures' power under section 92, head 14 to cre
ate their superior courts one sees at once that the con
stitutional text does not compel conclusions that the
Federal Court does or could wield less inherent juris
diction in its proper sphere than the provincial courts
in theirs, nor that the Federal Court is "only" a statu
tory court, hut the provincial courts are somehow not
statutory courts. Of course, one must accept authori
tative interpretations of these constitutional texts,
especially when imparted by the Supreme Court of
Canada. One should not assume a lack of jurisdiction
unless it has been imposed by authoritative judicial
pronouncement. Now one should review the two pro
visions of the Federal Court Act invoked by the
applicant. They are these sections:
25. The Trial Division has original jurisdiction, between
subject and subject as well as otherwise, in any case in which a
claim for relief is made or a remedy is sought under or by vir
tue of the laws of Canada if no other court constituted, estab
lished or continued under any of the Constitution Acts 1867 to
/982 has jurisdiction in respect of that claim or remedy.
44. In addition to any other relief that the Court may grant or
award, a mandamus, injunction or order for specific perform
ance may be granted or a receiver appointed by the Court in all
cases in which it appears to the Court to be just or convenient
to do so, and any such order may be made either uncondition
ally or on such terms and conditions as the Court deems just.
McNamara Construction (Western) Ltd. et al. v. The
Queen, [ 1977] 2 S.C.R. 654; Quebec North Shore Paper Co. et
al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R. 1054; and
R. v. Thomas Fuller Construction Co. (1958) Ltd. et al., [1980]
I S.C.R. 695 (Martland J. dissenting).
These days, when one seeks any reliable statement
of this Court's jurisdiction, one resorts to the judg
ment of the Supreme Court of Canada in ITO—
International Terminal Operators Ltd. v. Miida Elec
tronics Inc. et al., [1986] 1 S.C.R. 752, a closely split
decision, in which Mr. Justice McIntyre wrote the
majority decision. There are three essential analytical
criteria enunciated by the Supreme Court's majority.
There must be a statutory grant of jurisdiction by
Parliament. It seems clear that sections 25 and 44 of
the Federal Court Act, above recited, satisfy this first
requirement in according jurisdiction to this Court.
Those two sections are nothing, if not statutory grants
of jurisdiction. In particular, when read together, they
accord jurisdiction to grant or award an injunction in
any case in which that relief is sought, between "sub-
ject and subject", under or by virtue of the laws of
Canada, where it appears to be just or convenient to
do so, if no other court constituted, established or
continued under any of the Constitution Acts 1867 to
1982 has jurisdiction in respect of that claim or rem
edy.
The second and third requirements set out in the
ITO case were made separate to meet the exigencies
of that case's circumstances, hut ordinarily they can
be consolidated into one statement. There must be an
existing body of federal law on which the case is
based—a "law of Canada" as expressed in section
101 of the Constitution Act, 1867—which is essential
to the disposition of the case, and which nourishes
the statutory grant of jurisdiction. This case is based
on the Canadian Human Rights Act, an authentic
"law of Canada" within the contemplation of section
101 of the Constitution Act, 1867. If it were not for
the provisions of that statute bearing on the subject-
matter here—the respondents' denigration and mock
ery of non-whites and Jews, (which, the applicant
submits, likely exposes them repeatedly by tele
phonic communication to hatred or contempt)—as
set out in section 13 of the Act, these proceedings
could not have been undertaken. It is, thus, clear that
the Act is a body of federal law which, in these par
ticular circumstances, is essential to the disposition of
this case and which nourishes the Court's statutory
grant of jurisdiction invoked by the applicant. The
Canadian Human Rights Act describes and
denounces a discriminatory practice, if so found,
which can ultimately he enjoined by the order of a
Human Rights Tribunal only "at the conclusion of its
inquiry".
Parliament has created a jurisdictionally symbiotic
relationship between the CHRC, its investigators and
Tribunals on the one hand and the Federal Court on
the other by means of sections 57 and 58 of the Act.
Such provisions designate the Federal Court for the
enforcement of any order of a Tribunal or the Review
Tribunal, and of any of their orders for claimed dis
closure of any information from a minister of the
Crown. No other Court mentioned in section 25 of
the Federal Court Act is designated as an enforce
ment arm for the operations of the CHRC, its investi
gators, Tribunals or the Review Tribunal. The Cana-
dian Human Rights Act is surely one operative law
under which this Court can properly entertain
originating motions for relief against the CHRC. That
is because the CHRC, with the Tribunals, is surely a
federal board, commission or other tribunal defined
in section 2 of the Federal Court Act, subject to the
supervising jurisdiction of this superior court. No
statutory law or rule of practice forbids the Commis
sion from initiating an originating motion under its
constituent statute.
The respondents' counsel urges that there is
another court pursuant to section 25 which has juris
diction in respect of these proceedings, and that is a
Human Rights Tribunal or a Review Tribunal, which
is empowered to make a cease-and-desist order pur
suant to subsections 53(2), 54(1) and 56(2). Thus, he
asserts, this Court is actually precluded by section 25,
not empowered by it in these circumstances. It will
he noted, however, that the Tribunal's (or Review
Tribunal's) powers to order cessation of discrimina
tory practices may be exercised only "at the conclu
sion of its inquiry" according to subsection 53(2) of
the Act. No Tribunal or Review Tribunal is empow
ered to make an interlocutory order. This is a power
which Parliament has conferred upon this Court, but
not upon a Tribunal which is not composed of profes
sional judges, even if it be a "section 101 Court", as
the respondents' counsel seems to suggest.
Even so, the respondents' counsel objects, one can
not find anywhere in the law an instance where any
injunction may be granted to restrain the exercise of a
Charter-protected freedom. This argument to a degree
impinges upon the question of whether the Court
should grant the sought-for injunction. It raises the
discretionary nature of the relief sought as well as the
question which the Court is bound to consider in
regard to section 1 of the Charter [Canadian Charter
of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]],
which, it will be remembered runs thus:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society. [Emphasis not in
original text.]
The emphasized words describe the test which must
be applied in order to determine whether any pur
ported restraint of the exercise of a Charter-guaran
teed right or freedom be lawful or not. However,
whether counsel can or cannot find an instance of
interlocutory restraint of an apparently Charter-guar
anteed freedom in circumstances not yet judicially
balanced off against the reasonable limits mentioned
in section 1, the possibility is not absolutely unthink
able. Indeed, the imposition of such restraints most
often occurs in regard to speech and expression, with
regard to trade-marks and copyrights and advertising.
In regard to the operations of law, government and
politics many a cynic has said "money talks" and one
can obtain interlocutory injunctive relief in commer
cial matters of trademark, copyright, patent and
industrial design cases, most especially at the behest
of the commercial goliaths whose business interests
may be in jeopardy. The cynics may be correct, or
not, but this is not a case for cynicism. It does not
appear that the commercial goliaths suffer any greater
harm in the alleged infringement of their trade
marks, copyrights and advertising than do those indi
viduals who are mocked and denigrated for being
Jews and non-whites.
The respondents' counsel further contends that a
free-standing application, such as this, where no
action is instituted by the applicant for permanent
relief, is also beyond this Court's jurisdiction. Powers
are vested in a Human Rights Tribunal under subsec
tions 53(2), 54(1) and 56(2) of the Act. Those powers
and that jurisdiction are not vested in this Court or
any other Court. They include the making of a per
manent cease-and-desist order if the complaint be
substantiated. There is no power in the Tribunal to
make an interlocutory order, and there is no power in
the Court to make a permanent order. The "repair" (if
such it be) of this jurisdictional asymmetry is con
templated and made available by sections 25 and 44
of the Federal Court Act. Thus, a free-standing appli
cation may be granted—if warranted—with no vio
lence to the apparent purpose and intention of Parlia
ment, but rather in agreeable accord.
Such free-standing applications for injunctions,
where no other action is instituted in the Court, have
become rather numerous in recent decades and sev
eral have succeeded. That is to say, in the words of
section 44, the injunction is granted in addition to any
other relief which the Court may grant or award, in
all cases in which it appears to the Court to be just or
convenient to do so. The emphasized words imply a
free standing relief, not only one which is awarded
concurrently in a single proceeding. In these circum
stances, as noted, this section ought to he read with
section 25, but despite the respondents' opposition,
Parliament ought not to he taken to have enacted a
dead letter, "for the better administration of the laws
of Canada".
In the matter of free-standing injunctions becom
ing more and more accepted in recent decades, the
applicant's counsel points to the judgment of the
House of Lords in Siskina (Owners of cargo lately
laden on board) v. Distos Compania Naviera S.A.,
[1979] A.C. 210, as marking the turning point. In that
matter Lord Denning M.R. in the Court of Appeal
had reversed the disposition made by Kerr J. and the
Court of Appeal had granted an injunction in England
to restrain the removal of insurance moneys pending
the outcome of the parties' litigation in the courts of
Italy, or Cyprus, or by means of arbitration, and he
put the cargo owners on terms to proceed speedily in
that litigation or arbitration. At pages 235-236, the
Master of the Rolls is reported to he urging English
judges not to be "timorous souls" in reforming the
law to "find a good way to law reform". One of Lord
Denning's colleagues, Lord Lawton, heeded his call
to boldness, and the other, Lord Bridge (at pages 242-
243) declined, and so the decision of the Court of
Appeal was not unanimous. The House of Lords also
rejected the call to boldness. In terms here pertinent,
Lord Diplock noted that subsection 45(1) of the
Supreme Court of Judicature (Consolidation) Act,
/925 [(U.K.) 1925, 15 & 16 Geo. 5, c. 49] (differing
from section 44 of the Federal Court Act in this
respect) gave jurisdiction to make only an interlocu
tory order, (section 44 is not so restricted) and held
that such formulation [at page 254] "presupposes the
existence of an action, actual or potential, claiming
substantive relief ... to which the interlocutory
orders ... are but ancillary." Lord Hailsham agreed
in the result, but foresaw (at pages 260-261) develop
ments in the future more in accord with Lord Den-
ning's call to be bold, not "timorous". However, like
Lord Justice Bridge in the Court of Appeal, Lord
Hailsham foresaw the need for legislation, as well as
judicial law reform.
The reform came, in fact, through legislation,
which the applicant's counsel contends was still not
so encompassing as are sections 25 and 44 of the
Federal Court Act. Counsel cited the then triumphant
Lord Denning in the English Court of Appeal case of
Chief Constable of Kent v. V, [ 1983] Q.B. 34, where,
at pages 42 and 43, the Master of the Rolls is
reported as quoting the above cited reasoning of Lord
Diplock, and going on to say:
Now that reasoning has been circumvented by section 37 (1)
of the Supreme Court Act 1981 which came into force on Jan-
uary 1, 1982. It says:
"The High Court may by order (whether interlocutory or
final) grant an injunction or appoint a receiver in all cases in
which it appears to the court to be just and convenient to do
so."
Those words in brackets show that Parliament did not like
the limitation to "interlocutory." It is no longer necessary that
the injunction should be ancillary to an action claiming a legal
or equitable right. It can stand on its own. The section as it
now stands plainly confers a new and extensive jurisdiction on
the High Court to grant an injunction. It is far wider than any-
thing that had been known in our courts before. There is no
reason whatever why the courts should cut down this jurisdic
tion by reference to previous technical distinctions. Thus Par
liament has restored the law to what my great predecessor Sir
George Jessel M.R. said it was in Beddow v. Beddow (1878) 9
Ch.D. 89, 93 and which I applied in Mareva Campania
Naviera S.A. v. International Bulkcarriers S.A. [1975] 2
Lloyd's Rep. 509, 510: "I have unlimited power to grant an
injunction in any case where it would be right or just to do
so:..." Subject, however, to this qualification: I would not say
the power was "unlimited." I think that the applicant for an
injunction must have a sufficient interest in a matter to warrant
him asking for an injunction. Whereas previously it was said
that he had to have a "legal or equitable right" in himself, now
he has to have a locus standi to apply. He must have a suffi
cient interest. This is a good and sensible test. It is the self
same test of locus standi as the legislature itself authorised in
section 31 (3) of the Supreme Court Act 1981. Next, it must be
just and convenient that an injunction should be granted at his
instance as, for example, so as to preserve the assets or prop
erty which might otherwise be lost or dissipated. On this prin
ciple 1 think that the Siskina case [1979] A.C. 210 would be
decided differently today. The cargo owners had plainly a suf
ficient interest: it would have been most just and convenient to
have granted an injunction, as I pointed out in the Court of
Appeal in the Siskina case, [1979] A.C. 210, 228E. It was most
unjust for the House of Lords to refuse it.
In support of his contentions concerning the
Court's jurisdiction to grant the injunction sought, on
a basis somewhat akin to that underlying the Mareva
injunction, the applicant's counsel cites passages
from I.C.F. Spry's The Principles of Equitable Reme
dies: Specific Performance, Injunctions, Rectification
and Equitable Damages, 4th ed. (Toronto: Carswell
Co., 1990). That learned author, at page 443, opines
that even at the time of the House of Lords' decision
in the Siskina case, the Lords were being "unduly
restrictive", in terms of the development of common
law, equity and legislation in 1979. He urges at page
444, that in other jurisdictions than England, even,
"the powers of courts with equitable jurisdiction to
grant interlocutory injunctions must, subject to any
relevant territorial restrictions, now he taken to he
without limits." That is a thought not easy to recon
cile in Canada, where the Federal Court is a "mere"
statutory Court without, it is said, any inherent juris
diction yet enjoys territorially trans-provincial juris
diction, whereas provincial superior Courts, created
also by statute—provincial statute—have been held
to have inherent jurisdiction but it may be exercised
territorially only "in and for the province".
As noted earlier herein, because Parliament was
acting under a constitutional provision which
empowered it "notwithstanding anything" in the
Constitution Act, 1867, to provide for the establish
ment of the Federal Court of Canada "for the better
administration of the laws of Canada", it can be held
that the Federal Court's inherent jurisdiction in its
proper sphere operates in so far as legislation and
judicial authority have not suppressed it. On that
basis it is apparent that there may be many cases—
the present case could be among them—in which it
would be just and convenient to enjoin a person, firm
or corporation from apparently flouting the laws of
Canada, until the question is authoritatively resolved
by arbitration pursuant to federal law or before the
federal administrative tribunal having the jurisdiction
to perform that authoritative resolution. On this basis,
then, this Court's jurisdiction, whether inherent or
statutory, is well founded.
The jurisprudence cited by the applicant, more
than mentioned herein, emanates from England, and
for that reason it was intimated by counsel that this is
a case of first impression in Canada. However the
granting of an interlocutory injunction where it
would not even be ancillary to substantive relief
claimed in an action has at least one precedent in
Canada. There may well be others, but the prime
authority in this regard appears to be Amchem Prod
ucts Inc. v. British Columbia (Workers' Compensa
tion Board) (1989), 65 D.L.R. (4th) 567 (B.C.S.C.), a
judgment of Esson C.J.S.C., and (1990), 75 D.L.R.
(4th) 1, a unanimous judgment of the British Colum-
bia Court of Appeal rendered principally by Hol-
linrake J.A. The appeal and cross-appeal were dis
missed.
In the circumstances of the Amchem case, 194 indi
vidual defendants were plaintiffs in a Texas action
against 28 corporate plaintiffs for damages alleged to
arise from exposure to asbestos fibres of products
allegedly manufactured and marketed outside of
Canada by those corporate plaintiffs. Most of those
corporate plaintiffs were U.S. companies, but none
was incorporated in Texas. None of the corporate
plaintiffs had any connection with British Columbia,
but the individual defendants (plaintiffs in Texas)
were actual or former British Columbians whose
alleged injuries were sustained in the province. The
corporate plaintiffs (defendants in Texas) unsuccess
fully tried to persuade the Texas courts to decline
jurisdiction, seemingly because it was not open to a
Texas court to grant a stay on the basis of forum non
conveniens. The plaintiffs sought an injunction, an
"anti-suit" injunction in British Columbia to restrain
the defendants from proceeding with the Texas
action, and the Supreme Court of British Columbia
granted an interlocutory injunction.
In the trial court, Chief Justice Esson wrote as a
subject headline in his reasons, "Is there power to
grant an interlocutory injunction?", and on pages
596-597, he is reported to have written this:
I accept that only substantial relief sought in the action is the
injunction.
The question whether an interlocutory injunction can be
granted except where it is ancillary to other relief being sought
in the action is one which has been much considered by the
English courts in recent years, and specifically in relation to
injunctions of this general kind. Virtually all of the cases to
which I have been referred in which anti-suit injunctions have
been granted have been ones in which the application was
brought in already existing litigation. But in many cases, of
which Castanho [[1981] A.C. 557 (H.L.)] and SN! [[1987] 3
All E.R. 510 (P.C.)] are examples, the application was brought
by defendants in the action who could not be said to be seeking
an injunction as ancillary to other relief being sought by them.
I think that the better view is that this form of injunction con
stitutes an exception to the basic principle restricting the grant
of injunctions to certain exclusive categories. That view was
adopted by the House of Lords in what appears to be the most
authoritative case on the point: South Carolina Co. v. Assuran-
tie Maatschappij "De Zeven Provincien" N.V., [1987] A.C. 24,
per Lord Brandon at p. 40. It is interesting to note that Lord
Brandon, speaking for the majority on this view, took a nar
rower view than that taken by Lord Mackay and Lord Goff,
who expressed doubt that the power of the court to grant
injunctions is no longer restricted to exclusive categories.
As our underlying law governing the grant of injunctions is
essentially the same as that of England, I see no reason not to
accept the view of the law stated by Lord Brandon. That is
enough to dispose of the objection.
In the Court of Appeal, Hollinrake J.A. adopted and
ratified this statement simply by quoting it (on page
24) and writing: "I agree with what Chief Justice
Esson said on this issue."
So, at least in the Amchem case, the free-standing
application for an interlocutory injunction is known
in Canada, and was approved by both the trial and
appeal courts of British Columbia. It was granted in
order to prevent oppression against persons not resi
dent in British Columbia, coming nevertheless to the
provincial court for nothing more than the injunction
itself.
Does this Court's own Rule 469 [Federal Court
Rules, C.R.C., c. 663] prevent the same assumption
of jurisdiction as was effected by the British Colum-
bia courts? There, of course, the injunction seekers
filed an empty shell of a statement of claim, as the
Chief Justice perceived and noted in his reasons. No
doubt an empty-shell pleading by the CHRC would
have made an empty formal compliance with Rule
469, because the only effective relief which it seeks
in these proceedings is the injunction. Indeed,
because this Court's role is to provide enforcement
for Tribunals' orders, but cannot adjudicate the mat
ter as only the Tribunals can, there would be nothing
to plead in a statement of claim. There is no action
cognizable by the Court for the jurisdiction to adjudi
cate under the Act is conferred on the Tribunals, not
the Court.
However, if there be a legitimate jurisdiction in
aid, as has been demonstrated in the jurisprudence
and textbooks, Rule 469 relating to ordinary actions
will not stand in the way. Such indeed is the purpose
and meaning of Rule 6 [as enacted by SOR/90-846, s.
2] which permits dispensation from ordinary rules,
when necessary "in the interests of justice".
Now are there circumstances in which such per
sons could obtain such protection from oppression if
they were not even applicants for the injunction but
were represented by a "protector" so to speak? In
other circumstances might the community at large or
general public gain such protection through an inter
cessor? Such a situation arose in this Court in 1979,
albeit in an ex parte application in R. v. National
Association of Broadcast Employees and Technicians,
[ 1980] 1 F.C. 716 (T.D.), a decision of the then Asso
ciate Chief Justice, the Honourable A. L. Thurlow.
Unlike the Amchem case, Thurlow A.C.J. had before
him a privative provision of the Canada Labour
Code [R.S.C. 1970, c. L-1 (as am. by S.C. 1972, e.
18, s. 1; 1977-78, c. 27, s. 63)], but also what seems
to have been a mere hollow shell of a lawsuit not
unlike that in the Amchem case which arose a decade
later. The Attorney General's application was for an
interim injunction to restrain violation by the defend
ants of subsection 180(2) of the Labour Code. Two of
the defendants attended the hearing hut made no rep
resentations. Thurlow A.C.J. granted the injunction in
order to abort the defendants' announced purpose to
flout the law.
Neither counsel noticed that the above-cited judg
ment in R. v. NABET was overruled by the Appeal
Division beginning at pages 820 post in the same
volume. The Appeal Court's ratio, written by Pratte
J.A., is on page 825, and is this:
It is apparent from the statement of claim that the Crown and
the Attorney General were merely acting on behalf of the
Canadian Broadcasting Corporation; this is not a case where
the Attorney General was acting in his own right as the repre
sentative of the public interest. It was, for that reason, a case
where the jurisdiction was specially assigned to the Canada
Labour Relations Board and where, consequently, the Trial
Division had no jurisdiction.
Here, the role undertaken by the CHRC is surely rep
resentative of the public interest, for this is no labour
dispute involving primarily employers' and employ
ees' interests.
The only comfort CHRC can take from that rever
sal resides in the concurring reasons of Kerr D.J. at
page 826:
As the Attorney General was not, in our opinion, acting in this
case in his own right as guardian of the legal rights of the pub-
lic the decision being here given should in no way be con
strued as implying that the Trial Division does not have juris
diction to grant, on an application of the Attorney General
acting as such guardian, an injunction against a threatened vio
lation of section 180 of the Canada Labour Code in circum
stances where there is no other available remedy to deal with
the matter in time to prevent serious harm to the public.
Telephonic messages designed to disparage and mock
some of the public for their ancestry, and to set other
members of the public against them, constitute prima
facie serious harm to the public. In that exceptional
case, the Associate Chief Justice granted an interloc
utory injunction which was to endure only nine days
before it automatically dissolved.
That action by the Court's order to prevent appre
hended flouting of the law is apparently not so excep
tional as a general proposition of English law, to
which one may resort, as did the British Columbia
courts, at least for general principles. Once again the
English Court of Appeal, this time in Stafford Bor
ough Council y Elkenford Ltd, [1977] 2 All ER 519,
gives an example. The fourth edition of Halsbury,
published in 1979 about the time of the developments
of the law discussed herein, has this passage in vol
ume 24, at page 520, paragraph 921:
Where statute provides a particular remedy. Where a
statute provides a particular remedy for the infringement of a
right created by it or existing at common law, the court's juris
diction to protect the right by injunction is not excluded unless
the statute expressly or by necessary implication so provides.
Moreover, notwithstanding that a statute provides a remedy in
an inferior court for breach of its provisions, the High Court
has power to enforce obedience to the law as enacted by way
of injunction whenever it is just and convenient to do so.
Where a statute merely creates an offence, without creating a
right of property, and provides a summary remedy, a person
aggrieved by commission of the offence is confined to the
summary remedy, and cannot claim an injunction, although
proceedings may be brought by the Attorney General, if the
public interest is affected.
The High Court, however, has jurisdiction to grant a declara
tion and ancillary injunction, notwithstanding that its effect is
to establish the existence or non-existence of a liability which
could be enforced only in a court of summary jurisdiction. In a
case where a person would otherwise be without remedy for an
injustice, the court has a discretionary power to intervene by
way of declaration and injunction in a dispute upon which a
statutory tribunal has adjudicated. However, where the legisla
ture has pointed out a special tribunal, another court will not,
as a general rule, restrain proceedings before it by injunction.
Here the inferior court, the Tribunal, as noted can
grant the final injunction, but the common law or the
legislation, or both, accord jurisdiction to the superior
court to intervene to prevent a flouting of the law at
an interlocutory stage. An example of the Attorney
General moving the superior court for an injunction
to stop activities in breach of a statute—flouting in
the expression of Phillimore L.J.—is the case of
Attorney-General y Chaudry, [1971] 3 All ER 938
(C.A). There, at the instance of the Attorney General,
the superior court enjoined the continuation of a resi
dential fire hazard until the case could be adjudicated
by the magistrates' court. In B.C. (A.G.) v. Wale,
[1987] 2 W.W.R. 331 (B.C.C.A.), McLachlin J.A. (as
she then was), for the majority, acknowledged the
role of the Attorney General to act on behalf of disaf
fected groups of persons (page 342) and the practice
of the Crown seeking to enforce by injunction what is
prima facie the law of the land.
It is a nice question as to whether this undoubted
role of the chief law officer of the Crown—the Attor
ney General—goes to the Court's jurisdiction, or to
the Court's discretion. However, it is convenient to
address the matter under the rubric of jurisdiction.
In Robert J. Sharpe's Injunctions and Specific Per
formance (Toronto: Canada Law Book Ltd., 1983)
the learned author confirms, at page 121, the "well-
established jurisdiction to award injunctions at the
suit of the Attorney-General to enjoin public
wrongs". He notes, at page 122, that the role of the
"Attorney-General in suing in the public interest to
enjoin public nuisances is of great antiquity and con
tinues to have importance". Public nuisances are not
the only basis for application by the Attorney Gen
eral for an injunction. In regard to statutes which do
not qualify as true criminal law, but which may be
enforced by fines which do not deter offenders from
flouting the law, Professor Sharpe writes [at pages
128-129]:
There is now considerable authority in favour of injunctions
in such cases in Canada. An Alberta court granted an injunc
tion enjoining the unauthorized practice of dentistry, although
there was no evidence of actual harm from the practice in
question, on the grounds that there had been open, continuous,
flagrant and profitable violation of the statute for which the
statutory penalties were completely ineffective. More recently
in Ontario, a trucking company which persistently operated
without the required licence notwithstanding numerous convic
tions was enjoined at the suit of the Attorney-General, the
court holding that such relief was appropriate "where the law
as contained in a public statute is being flouted." The Alberta
Court of Appeal has held that an injunction may be awarded at
the suit of the Attorney-General to prevent further violations of
the Lord's Day Act where the facts demonstrated "an open and
continuous disregard of an imperative public statute and its
usual sanctions which is unlikely to be thwarted without the
intervention of the Court."
The rationale in this type of case seems clear: despite the
absence of actual or threatened injury to persons or property,
the public's interest in seeing the law obeyed justifies equita
ble intervention where the defendant is a persistent offender
who will not be stopped by the penalties provided by statute.
It may be noted that although the Lord's Day Act
[R.S.C. 1970, c. L-13], above mentioned, has been
struck down, the Canadian Human Rights Act still
stands.
The CHRC's counsel contends that the Court
ought to take cognizance of, and jurisdiction over the
Commission's application for an interlocutory
injunction because, in a real sense, the CHRC is
assimilated to the role of the Attorney General for the
proper enforcement, and the suppression of flouting,
of the provisions of the Canadian Human Rights Act.
Because of the place and status conferred upon the
CHRC by Parliament in formulating and enacting the
Act, there is great merit in counsel's contention.
The CHRC comes to the Court in its own strong
and independent right and not as a relator under the
general supervision of the Attorney General. The
CHRC in its own right is truly the guardian of the
federal human rights legislation. For example, the
CHRC is invested with a wide array of considerable
power and discretionary authority by section 27
alone, in Part II of the Act. Here are some pertinent
passages:
27.(l) In addition to its duties under Part Ill with respect to
complaints regarding discriminatory practices, the Commis
sion is generally [note: not exclusively] responsible for the
administration of this Part and Parts I and Ill and
[(a) through (g) authorize research, study, public informa
tion powers, review of statutory rules, regulations, orders,
by-laws and other instruments to identify inconsistencies
with the principles stated in section 2]; and
(h) shall, so far as is practical and consistent with the
application of Part III, endeavour by persuasion, publicity
or any other means that it considers appropriate to dis
courage and reduce discriminatory practices referred to in
sections 5 to 14. [Emphasis not in original text.]
It requires no further elaboration (although much
more could be performed) that among the means to
discourage and reduce discriminatory practices
referred to in section 13, the CHRC may seek an
interlocutory injunction in this Court, fulfilling the
same role as the Attorney General, since the Com
mission is generally, but not exclusively responsible
for the administration of Parts I, II and III of the Act,
the major parts. (Because the non-whites whom the
respondents denigrate and mock on a racial basis
must surely include the aboriginal peoples, it is per
haps ominous that section 67 in Part IV provides that
nothing in this Act affects any provision of the Indian
Act or any provision made under or pursuant to that
Act.) This Court is also established for the better
administration of the laws—including the human
rights laws—of Canada, a role not excluded by the
CHRC's general responsibility enacted in subsection
27(1) of the Act.
The turning point in Canada for the granting of
standing in litigation came in the late nineteen-seven
ties. It was evinced in these judgments of the
Supreme Court of Canada:
Thorson v. Attorney General of Canada et al., [1975]
1 S.C.R. 138;
Nova Scotia Board of Censors v. McNeil, [1976] 2
S.C.R. 265; and
Minister of Justice of Canada et al. v. Borowski,
[1981] 2 S.C.R. 575.
As the notion of the authoritarian administration of
justice became more and more diluted, the notion of
relator actions brought by interested persons under
supervision of the chief law officer of the Crown fell
more and more out of favour. In a passage which
now can be seen to support the CHRC's right to bring
this application, and the Court's jurisdiction to take
cognizance of it, Mr. Justice Laskin is reported to
have written this in the Thorson case, at pages 146-
147:
If a previous request to the Attorney General to institute pro
ceedings or to agree to a relator action is a condition of a pri
vate person's right to initiate proceedings such as this on his
own (see Attorney General v. Independent Broadcasting
Authority, ex parte McWhirter [[1973] 1 All E.R. 689], at p.
698) that condition has been met in this case. I doubt, however,
whether such a condition can have any application in a federal
system where the Attorney General is the legal officer of a
Government obliged to enforce legislation enacted by Parlia
ment and a challenge is made to the validity of the legislation.
The situation is markedly different from that of unitary Great
Britain where there is no unconstitutional legislation and the
Attorney General, where he proceeds as guardian of the public
interest, does so against subordinate delegated authorities.
Indeed, in such situations the decision of the Attorney General
to proceed on his own or to permit a relator action is within his
discretion and not subject to judicial control: see London
County Council v. Attorney General [[19021 A.C. 165]. Never
theless, what was said by Lord Denning in the McWhirter case,
supra, on the position of a member of the public where the
Attorney General refuses without good reason to take proceed
ings ex officio or to give leave for relator proceedings, is rele
vant to a distinction that I take and on which, in my opinion,
the result in this case turns. I shall come to this later in these
reasons.
Here, of course, the applicant does not impugn the
Act's validity, but rather, in the place of the Attorney
General, seeks its interlocutory enforcement. The sta
tus of the CHRC, with its statutory powers and
responsibilities, is such that it is the natural and prime
applicant to move the Court to grant a free standing
interlocutory injunction, which is within the Court's
jurisdiction to consider and to grant or to decline.
Upon all the foregoing considerations the Court finds
jurisdiction herein to act upon the applicant's invoca
tion of sections 25 and 44 of the Federal Court Act.
The Court possesses the jurisdiction in these circum-
stances to grant or award an interlocutory injunction
of the sort sought by the applicant.
SHOULD THE COURT GRANT THE INJUNC
TION?
The applicant needs only to establish a serious
question to be tried as stated by Lord Diplock in
American Cyanamid Co. v. Ethicon Ltd., [1975] A.C.
396 (H.L.), but in truth it has gone further and estab
lished the higher test of a prima facie case, as men
tioned also, and explained later, by Lord Diplock in
NWL Ltd y Woods, [1979] 3 All ER 614 (H.L.). This
is known as the "Woods exception". It would apply
where the grant or refusal of an interlocutory injunc
tion at this stage would, in effect, dispose of the
action finally in favour of whichever side is success
ful in these proceedings. This is not apparently the
circumstance here, for if the respondents be success
ful herein, the applicant will surely not withdraw the
case from the Human Rights Tribunal. Equally, if the
applicant be successful here, the respondents are still
quite able to go before that Tribunal putting to the
applicant the burden of persuasion to show that the
respondents' messages are "likely to expose" those
persons against whom they speak "to hatred or con
tempt by reason of the fact that ... those persons are
identifiable on the basis of a prohibited ground of dis
crimination". That decision, ultimately, will be the
Tribunal's after hearing the evidence and the parties'
submissions. The respondents' position against the
granting of an injunction comprises arguments which
are far from negligible.
The respondents' strongest argument goes like
this: there is no freedom of speech and expression
unless one be free to give offence, since freedom to
speak and give no offence permeates even totalitarian
states and societies. A truly free and democratic soci
ety exacts the guaranty of rights and freedoms which
really "bite", which guarantee the exercise of those
rights and freedoms when one really needs that guar
anty, as the respondents say they do, now. They prob
ably do not need, and have surely transcended the
tame "freedoms" of speech and expression which are
accorded only by totalitarian states.
The argument is so powerful in the right circum
stances that to many it will seem to be conclusive for
the respondents in these circumstances. Indeed that
argument invokes at least the semantics, if not the
inherent substance, of Canada's Constitution, whose
purpose, values and imperatives must be among the
most beautifully humane and tolerant in all the world.
That is not to say that those values are basically mush
which exacts no intellectual fibre or rigour to apply,
for they surely do not lead necessarily to their own
dilution, suppression or extinction. They have to be
upheld by all branches of government, legislative,
executive and judicial, without the betrayal of dilu
tion of or compromise in their continued operation in
this free and democratic society. Only a decadent
society lacks the tough-mindedness to sustain its own
fundamental values.
That said, it may be just as well that the Attorney
General has not intervened to seek an injunction
against these respondents, for in Canada, unlike so
many other free and democratic societies in the same
tradition, Canada's Attorney General is a member of
the Cabinet, a member of the government of the day,
and not an independent law officer. Therefore, it is
much better to avoid the undoubted weight and suspi
cion of partisanship of any government of the day, in
taking proceedings in which the respondents are
going inevitably to assert that their Charter-protected
rights are sought to be suppressed, rather than to he
upheld. The CHRC (in common with other commis
sions, such as the Law Reform Commission, the
Immigration and Refugee Board, etc. for example) is
not in or of the government of the day, but stands
apart from that government. It is, however, the insti
tution created by Parliament to vivify the operations,
meaning, purpose and public import of the Canadian
Human Rights Act. The CHRC performs its duties,
not perfectly (in common with all human institu
tions), but according to its dedicated view and under
standing of its mandate, and it is subject to judicial
supervision, with the latter's own inbuilt appeal pro-
cess. As the CHRC well knows, its own relationship
with this Court is very much "at arm's length".
Would the imposition of an interlocutory injunc
tion in these circumstances be an unwarranted inter
ference with the respondents' rights and freedoms?
When one penetrates the bodyguard of semantics,
what essentially are their rights and freedoms? Is one
of the world's most humane declarations of human
rights and freedoms a vehicle for legitimating the dis
paragement and ridicule of human beings for no just
cause? Such, the Court finds those messages, or most
of them to be.
There is the problem and vice of the respondents'
telephone messages. Is it unobjectionable, is it past
the line of permissibility or not, to warn that what is
about to be heard will offend some people, thereupon
invited to exit from the program; and then to go on to
disparage and ridicule Jews, and non-whites as sub
human, or to make light of the lethal fury of the cow
ardly Nazis' holocaust, because maybe somewhat
fewer than six million "sub-men" were ruthlessly
murdered?
Does Canada's beautiful and humane rights-and-
freedoms package look with unmoved disinterest
upon the use of the telephones—a mass communica
tion system—to injure humans' worth by mocking
them just for being what they are? No one ever chose
his or her own biological parents or ancestors. There
fore no one is justified in attempting to inflate his
own would-be nobility of character or lineage on the
basis of who his or her ancestors were.
Indeed many, many peoples' ancestors were big
ots, haters and even Nazis. If one is going to teach a
history lesson about the transmission of civilization
one does not need to begin with "true men" keeping
apart from sub-humans. Apes and chimpanzees are
sub-human. That which identifies the human race, or,
in deference to the respondents, the human races, is
that the people are all inter-fertile. That is surely the
means of identifying and defining all humans on the
planet Earth. Again, it is remarkable that in his dithy-
rambic rhapsody about pure euro-civilization, the
recorded "historian" either ignored or did not even
know about the great, semitic empire of the Islamic
Abbasids (A.D. 750 - 1250 approx.), with its Jewish,
Persian and even Christian officers of State, and
scholars. Prosperous urban cultural centres inhabited
and inspired by non-euros, even "brown nations",
flourished in greatly distant places such as Cordoba
in the west, Palermo, Cairo, Baghdad, unto Nishapur
in the east. Almost any European or American ency
clopaedia could reveal to the author of the "history
lesson" that the Abbasid culture, learning and schol
arship saved and preserved the ancient Greek learn
ing, and vastly outshone a Europe festering in the
general ignorance and brutality of the Dark Ages.
That grave omission from the "history lesson" reveals
how shallow and fatuous it is.
Racism, which always consists, in large part, of
ancestor-worship and ancestor-advocacy, evinces at
least two pernicious propensities. There is the pro
pensity to injure others to whom one fancies oneself
so superior because of the imagined virtues of mind
and physique and culture which one inherited from
forebears who always seem to have been just as big
oted, narrow-minded and hateful as their descendants
of the day. From whom, after all, was racism trans
mitted to the not-much-advanced modern world?
There is the other propensity to nurture the hurts and
grievances of one's ancestors in order constantly to
fling them with their claws and fangs of guilt into the
faces of certain contemporaries whose long-gone
ancestors may have been the only ones to have blood-
ily inflicted those hurts and grievances. And so it
goes. Just as one cannot claim virtue from one's
ancestry, so one cannot be responsible for their
aggressions. The racists forget nothing and learn
nothing. (It may well be that the very racial mixing,
which modern-day spewers of hatred, superiority and
violence so abhor, would be the salvation of the
human species. Then humanity might go to work on
eliminating the domination/damnation virulence of
religious intolerance.) Raised fatuously and magni
fied falsely to the level of political philosophy or
religion, those racist propensities can be seen clearly
to be inimical to the beautiful imperatives and values
of Canada's Constitution.
This demonstrates the silliness of ancestor-worship
or ancestor-advocacy. That silliness, however,
becomes downright injurious and potentially lethal
when it turns against other humans on the basis of
who their unchosen ancestors were. That is the effect
of turning against people for what they cannot help,
for what they cannot change even if they wished to
do so. The rotten corrosiveness of racism disparages
and ridicules other people just for drawing breath, for
living.
So often the racists are of such blinkered ignorance
that they denigrate people without knowing whom
they victimize. For example, the so-called "Kosher-
tax" program could be expressed in a legitimate free-
speech modality to alert consumers that they are (if
so) all paying extra for a small minority's religious
requirements, and that the cost ought justly to be
borne by those who cause it to be imposed. Freedom
of thought, opinion and expression surely allow for
and protect that communication and it ridicules no
one. The respondents may be surprised to learn that it
is not only Jews who seek kosher food, if not soaps
also. They are referred to AI-Qur'an (the Koran)
Surah V, verses 3 and 5. So also the program's
abstruse, but shallow, complaints about the displace
ment of western-European-style-and-origin architec
ture and music could be legitimately expressed and
protected by the Charter provisions above mentioned.
It is not for the Court to pronounce a judgment on the
merits—rather for a Human Rights Tribunal—but it
may be that the architecture-music passages do not
transgress in their emitted configuration. They are,
however, part of a "menu" where they reinforce the
racist messages which they accompany.
Canada, whose Constitution asserts the freedoms
of conscience and religion simultaneously with those
of thought, belief, opinion and expression must be—
is—by necessary implication a secular State. (The
one historic exception generated long ago when no
one could foresee anything but a euro- or aborigino-
Christian nation, is the recognition of separate
schools.) With those constitutional provisions above
recited, however, Canada could never become a the
ocracy no matter what beliefs about God, Yahweh,
Allah or multiple deities were held by a majority of
the population, for the State would always have to
guarantee all of those freedoms simultaneously.
Charter section 29 is the one above mentioned, nota
ble, and apparently ineradicable, exception to the sec-
ularity of the Canadian State. Perhaps it proves the
rule.
Is there then any natural or inherent limitation on
those freedoms, even apart from considerations gen
erated by section 1 of the Charter, and even despite
the exclusivity which section 1 arrogates to itself?
Such limitation arises inherently and naturally at a
point where the scope of each freedom collides
repugnantly with the scope of another. For example,
where religious belief required the genital mutilation
of girls, or the incitement of the faithful to murder an
alleged blasphemer, the freedoms of conscience,
religion and belief simply must yield to the other
guaranteed rights to life and security of the person.
Such practices, even if asserted with a bodyguard of
semantics about freedom of religion, simply ought to
excite the attentions of the police and of children's
aid societies.
Disparaging, dehumanizing messages place the
people whom they target into plights of humiliation
and mockery. The Charter surely does not guarantee
the dissemination of such messages. So there is an
inherent limitation on freedom of speech and expres
sion at the point where it collides (or they collide)
with those rights articulated in sections 7, 12, 15, 27
and perhaps 28. Although the Charter applies, by sec
tion 32, to governments and legislatures, it must not
be forgotten that the rights and freedoms extended to
individuals are guaranteed, and if not by the State,
then by whom? The Court's role is not proactive, as
demonstrated by section 24, but re-active. Who then
is to guarantee Jews and the non-euro "sub-humans"
from the cruel treatment imposed upon them by that
pernicious disparagement, that manifestly unequal
discrimination based on race, ethnic origin, colour or
religion, or cultural heritage or sometimes even gen
der disparity, if not the State? As noted, the Court can
guarantee rights and freedoms, but only after the fact
of infringement or denial thereof. In these considera
tions no breach of section 26 of the Charter is pro
moted, for the limitation-by-collision of certain rights
and freedoms is not construing their being guaran
teed, as though denying the existence of other rights
and freedoms, hut rather only construing their natural
or inherent limitation of scope.
To the extent that this notion of inherent or natural
limitation has been considered in the jurisprudence,
including Canada (Human Rights Commission) v.
Taylor, [1990] 3 S.C.R. 892, then it must he reconsid
ered or modified, for in the aforementioned judgment
it appears that none of the judges of the Supreme
Court of Canada, construing Irwin Toy Ltd. v. Quebec
(Attorney General), [1989] I S.C.R. 927, recognized
any limitation on content of expression or message in
contemplation of paragraph 2(b) of the Charter. Per
haps no expression of speech can be so horrid (short
of incitement to murder, publication of the infamous
fatwah or the like) as to exhaust the extent of protec
tion guaranteed by paragraph 2(b) even in seeming
collision with other Charter rights. Of course it may
be said that the other rights themselves incorporate
inherently reasonable limits prescribed by law, which
are demonstrably justified.
In any event, Parliament has purported to give a
State guaranty of people's rights when it enacted lim
its prescribed by law, in the form of the Canadian
Human Rights Act. That statute engages the require
ment for "law" or "a law" exacted by Charter section
1. A numerically slim majority of the Supreme Court
of Canada, four of the seven judges, in the Taylor
case, found that, despite the inconsistency of subsec
tion 13(1) of the Act with the freedom enunciated in
paragraph 2(b) of the Charter, that section neverthe
less constituted a reasonable limit on that freedom,
within the meaning of section 1 of the Charter.
It will be the task of the Human Rights Tribunal,
not this Court, to determine whether the respondents'
messages are truly likely to expose persons to hatred
or contempt in contemplation of subsection 13(1) of
the Act. Having found that those messages do consti
tute disparagement and ridicule of the target humans,
the Court holds that they are capable of doing the
mischief which the Act is emplaced to combat.
Should they be enjoined, even if only temporarily?
Here, indeed, is a serious question to he tried by a
Tribunal, as Parliament enacted. Here, starkly, is the
dilemma presented when constitutional values and
imperatives collide or appear to do so. Ernst Zündel
is a convict, but should the respondents who dissemi
nate news of him be enjoined from doing that?
Should their whole menu be considered for injunc
tion or only parts of it? Do any of their messages
reify the ideals and imperatives of the Constitution,
which, they assert, protect their telephonic uttering of
such messages?
It is not an easy choice to make between freedom
of expression and speech on the one hand, and its
temporary suppression in the name of sparing people
the injury of verbal disparagement just for being
what they are. The Court in its discretion concludes
that the expression of the disparaging words can wait
or be stilled pending the deliberations of the Tribunal.
If the Tribunal should find that the respondents'
messages do not expose persons to hatred or con
tempt by reason of their race, national or ethnic ori
gin, colour or religion, then it may be noted that,
absent some genocidal cataclysm, the respondents
will still have plenty of non-pure-euros in the popula
tion about whom to make their disparaging observa
tions in the future; so, they will have suffered no
irreparable loss. That position may be contrasted with
the pernicious degradation and humiliation cast upon
the respondents' human targets.
So also must be adjudged the balance of conve
nience. It is surely more terrible than a mere inconve
nience to be disparaged and ridiculed just for draw-
ing breath, but it is not terrible at all for the
respondents to be silenced for a time. True, it is terri
ble to have one's freedom of speech stifled, even for
a relatively short time. The respondents really are
asserting their freedom of denigrating people for
their ancestry; but the whole object of the Tribunal's
proceedings is to determine authoritatively whether it
he demonstrably justifiable to stifle it forever. The
object of those proceedings is not to determine
authoritatively whether the respondents' targets are
really human beings deserving not to be disparaged
just for being who they are. It is, of course, just the
same for those who would disparage people of Euro-
pean ancestry just for being who they are. The Act
after all is concerned with human rights.
Given the Court's finding that the respondents'
messages are disparaging and injurious to the self-
respect of those humans who are its targets, there
exists either a strong prima facie case for the appli
cant; or the applicant has at least demonstrated a seri
ous issue to be tried by a Human Rights Tribunal.
They come to the same ground for granting an inter
locutory injunction in these circumstances.
The Court concludes that whereas some of the
respondents' messages could he legitimately
expressed without disparagement and ridicule, the
entire context of the respondents' menu of messages
is altogether so redolent of disparagement, humilia
tion and ridicule of the Jews and non-whites that it
ought all to be temporarily enjoined.
Some week-and-a-half after the hearing in Vancou-
ver, which occurred on February 5 and 6, 1992, two
audio tapes of the messages emitted on the respon
dents' "Liberty Net" were received from the appli
cant's counsel, although they had not been received
in evidence at the hearing. On that basis, those tapes
were declined. By letter dated February 26, the
respondents' solicitor and counsel wrote:
This will confirm that on behalf of Canadian Liberty Net I
do not object to your forwarding the audio tapes to Mr. Justice
Muldoon and have no desire for copies myself.
P.S. This is on the understanding that the tapes provided to the
Judge be those messages that form the subject matter of the
complaint itself and not any tape regarding Mr. Joseph Thomp-
son.
The present judge listened to a few skipped, inter
rupted segments of side A of the tape whose original
was recorded on December 14, 1991, by Mr.
Yamauchi, not the one labelled "copy of additional
messages". Although the sound level and quality are
poor, the tape appears to confirm the transcripts
appended to the affidavit evidence.
At the hearing of this matter the applicant's coun
sel was of the impression that no Human Rights Tri
bunal had yet been assembled and that such occur
rence was not immediately predictable. In that
circumstance the Court would have imposed condi
tions. However since the hearing, it has been made
known that the Tribunal is assembled and is about to
begin its adjudications. Any necessary delay ought to
be minimal, but the respondents would be, and are
hereby, entitled to seek conditions if the Tribunal
does not proceed with deliberate speed, with, of
course, the respondents' co-operation, else they
would have no legitimate complaint about delay.
There will be an order enjoining the respondents
by themselves or by their servants, agents, volun
teers, co-operants or otherwise anyone, having
knowledge of it from doing the acts described in the
applicant's originating notice. Costs will follow the
event, so that an order for costs must await the out
come of the Tribunal's deliberations, and any appeals
therefrom. If the parties think that these proceedings,
virtually of first impression, instituted by the CHRC
assuming the role of Attorney General, ought not to
bear costs, there is sufficient time to make representa
tions to that effect.
The applicant's solicitors may draw a draft order
as contemplated in Rule 337(2)(b). They should give
the respondents' solicitors a reasonable opportunity
to comment to them and/or to the Court on the form
of the draft order before submitting it for signature.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.