Judgments

Decision Information

Decision Content

T-209-92
Canadian Human Rights Commission (Applicant) v.
Canadian Liberty Net and Derek J. Peterson (Respondents)
INDEXED AS: CANADA (HUMAN RIGHTS COMMISSION) Y. CANADIAN LIBERTY NET (TD.)
Trial Division, Teitelbaum J.—Vancouver, June 29; Ottawa, July 9, 1992.
Practice — Contempt of court — Application for finding of contempt of court under R. 355 for breach of injunction prohibiting communication of telephone messages identified in order — Show cause order issued — Messages transmitted from USA to avoid injunction — Most of messages specifically prohibited by injunction — Law of contempt reviewed — Stan dard of proof similar to that in criminal matters: proof beyond reasonable doubt — Contemptuous activity must be expressly mentioned in order — Contents of injunction order known to respondent, partner — Respondents interfering with orderly administration of justice, thus in contempt of court.
This was an application that the respondents be condemned for contempt of court under Rule 355 for breaching an injunc tion order made by Muldoon J. prohibiting them from commu nicating or causing to be communicated by telephone messages as identified in the order. His Lordship had found that these messages were capable of exposing persons to hatred or contempt due to the fact that the persons spoken of were identifiable on the basis of race, national or ethnic origin, col our or religion. Following the issuance of the injunction, a call to a Vancouver telephone number resulted in a telephone mes sage given by the respondent, Canadian Liberty Net, directing the caller to a telephone number in Bellingham, Washington, U.S.A. in an attempt to avoid the terms of the injunction order. At the hearing of the show cause order, witnesses for the appli cant disclosed the contents of the messages they heard in dial ing the telephone number in question. Most of these messages were those specifically prohibited by the injunction order. The issues were whether the respondents, Canadian Liberty Net and its partner, Tony McAleer, could be found guilty of contempt in that a telephone message in Canada directed a caller to dial a number in the U.S.A. to hear a message enjoined to be given in Canada and whether it was shown, beyond a reasonable doubt, that respondents had breached the injunction order.
Held, the application should be granted.
The law of contempt was reviewed by the Federal Court of Appeal in Valmet Oy v. Beloit Canada Ltd. where it was said that a person cannot be found guilty of contempt of court if the contemptuous behaviour is not proved beyond a reasonable doubt, the standard of proof being similar to that applicable in criminal matters. It was also stated that the activity said to have constituted the contempt must be one clearly covered by the prohibition, which implies that it be expressly or by necessary inference mentioned in the order. The order herein prohibited the respondents themselves, their servants, agents, volunteers, co-operants or anyone having knowledge of the injunction from communicating or causing to be communicated by tele phonic means those messages or that menu of messages or any part thereof identified in the reasons for order issued by Mul- doon J. It was clear from the evidence that both McAleer and Canadian Liberty Net were made aware of the injunction order and that the reason they were operating "in exile" in the U.S.A. was because of their knowledge of the injunction. The messages carried from, the Bellingham telephone number were in breach of the injunction order in that they were, for the most part, the same messages as were prohibited by the order. By informing persons to call the Bellingham telephone number, both Canadian Liberty Net and McAleer were causing to be communicated the prohibited and reprehensible messages. The evidence clearly showed that this method of causing the pro hibited messages to be communicated to Canadians was care fully thought out. By specifically and purposely directing any one who called the Canadian telephone number to call the American telephone number to hear the prohibited messages, the respondents, Canadian Liberty Net and McAleer, acted in such a way as to interfere with the orderly administration of justice and were thus in contempt of court.
The messages transmitted by the respondent from its Bel- lingham telephone number were most reprehensible and an insult to the peoples against whom they were directed. Not withstanding the fact that the messages were found to be capa ble of exposing persons to hatred or contempt in that those per sons were identifiable on the basis of race, national or ethnic origin, colour or religion, Canadian Liberty Net and McAleer persisted in causing to be communicated these hateful and rep rehensible messages. Breach of the injunction order warranted a most serious penalty to ensure that this type of behaviour would not continue.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Rules, C.R.C., c. 663, RR. 337(2)(b), 335(1),(4).
CASES -JUDICIALLY CONSIDERED
APPLIED:
Cartier, Inc. v. Cartier Men's Shops Ltd. (1988), 21 C.P.R. (3d) 219 (F.C.T.D.); Valmet Oy v. Beloit Canada
Ltd. (1988), 20 C.P.R. (3d) 1; 82 N.R. 235 (F.C.A.).
REFERRED TO:
Cartier, Inc. v. Cartier Men's Shops Ltd. (1990), 32 C.P.R. (3d) 383 (F.C.A.).
APPLICATION for a finding of contempt of court under Rule 355 for breach of an injunction order ([1992] 3 F.C. 155 (T.D.)) prohibiting the respon dents from communicating or causing to be commu nicated by telephone those messages identified in the order. Application granted.
COUNSEL:
John L. Finlay for applicant. Douglas H. Christie 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
TEITELBAUM J: On March 27, 1992, Mr. Justice Muldoon issued an injunction order wherein he ordered Canadian Liberty Net including Cori Keating and Tony McAleer "and the respondent Derek J. Peterson, by themselves or by their servants, agents, volunteers, co-operants or, otherwise, anyone having knowledge of this injunction, be, and they are hereby restrained, enjoined and prohibited until a final order is rendered between these parties and persons in the proceeding before the Canadian Human Rights Tri bunal, from communicating or causing to be commu nicated, by telephonic means those messages or that menu of messages or any part thereof identified in the Court's said `reasons for order' issued on March 3, 1992 [[1992] 3 F.C. 155], and they are ordered to stop emitting said messages, being communications and messages which are found to be capable of exposing persons to hatred or contempt by reason of the fact that those persons are identifiable on the basis of race, national or ethnic origin, colour or religion, and in particular, the messages transcribed
in exhibits to the affidavits of Lucie Veillette and Ronald Yamauchi respectively filed at the hearing on February 5 and 6, 1992, and recited or referred to in correspondence between the respective solicitors and counsel dated March 3 and March 11, 1992, respec tively, on the Rule 337(2)(b) [Federal Court Rules, C.R.C., c. 663] proceedings, that is the following now enjoined and prohibited messages:"
There are approximately seven legal size pages of messages which are listed in the injunction order.
Mr. Justice Muldoon went on to state, in the said order:
THIS COURT FURTHER ORDERS that, because the essential characteristic of the respondents' messages which are enjoined, is to denigrate, disparage or mock human persons just for their ancestry, national or ethnic origin, colour or religion, and just for being who they are, that characteristic and those messages are found to be capable of exposing such persons to hatred or contempt by reason of the fact that such persons are identifi able on the aforesaid basis or bases,
the respondent Canadian Liberty Net, including Cori Keating and Tony McAleer, and the respondent Derek J. Peterson, by themselves and/or by their servants, agents, volunteers, co- operants or otherwise are hereby restrained, enjoined and pro hibited until a final order or disposition is rendered between these parties and persons in the Canadian Human Rights Tribu nal's proceeding, from communicating or causing to be com municated by telephonic means any messages which denigrate, disparage or mock persons by reason of their race, ancestry, national or ethnic origin, colour or religion, or just for being who they are or what they are in terms of ancestry or religion, (such as Jews or non Europeans, or non-European-descended persons); and those respondents shall forthwith stop so emit ting any such messages until the occurrence of the aforesaid order or disposition of the said Tribunal;
On June 15, 1992, the applicant presented an ex parte motion requesting the issuance of a show cause order naming the respondents and their agents, volun teers and co-operants. The grounds for the request, according to the notice of motion are Rules 355(1) and 355(4) of the Federal Court Rules.
Rule 355. (1) Anyone is guilty of contempt of court who disobeys any process or order of the Court or a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court. In particular, any officer of justice who fails to do his duty, and any sheriff or bailiff who does not execute a writ forthwith or does not make a return thereof or, in executing it,
infringes any rule the violation whereof renders him liable to a penalty, is guilty of contempt of court.
(4) No one may be condemned for contempt of court com mitted out of the presence of the judge, unless he has been served with a show cause order ordering him to appear before the Court, on the day and at the hour fixed to hear proof of the acts with which he is charged and to urge any grounds of defence that he may have. The show cause order issued by the judge of his own motion or on application must be served per sonally, unless for valid reasons another mode of service is authorized. The application for the issuance of the show cause order may be presented without its being necessary to have it served.
The applicant provided, for the issuance of the show cause order, the affidavit evidence of Liliane Mercier and Andrew Epstein.
After reading the injunction order and the affida vits of Mercier and Epstein, I issued a show cause order returnable before me on June 29, 1992.
At the hearing of the show cause order, I was presented with an affidavit of an Edward Byers, a process server, and the affidavit of a Partap Girn, a process server, who state that they were unable to serve the respondent Derek J. Peterson with the show cause order and four other documents, namely, a notice of motion seeking the issuance of a show cause order, a copy of the affidavit of Liliane Mercier together with a transcript of messages from the Cana- dian Liberty Net in British Columbia and in Belling- ham, Washington, U.S.A. obtained on June 5, 1992, a copy of the affidavit of Andrew Epstein an "articled student" at the law firm of Arvay, Finlay, to which is attached an affidavit of Roberta Mruk and a copy of a business record of "B.C. Tel" which, according to Mr. Epstein, indicates that a Tony McAleer was reg istered with B.C. Tel as a partner in the Canadian Liberty Net. A second affidavit of Mr. Epstein is attached to the affidavit of Partap Girn which is the injunction order of Mr. Justice Muldoon of March 27, 1992.
The affidavit of Dean Willsie, a process server, dated June 26, 1992 indicates that he attempted to serve Cori Keating with the show cause order and various other documents as with Derek J. Peterson
but was unable to do so. It appears that notwithstand ing the numerous attempts to find Cori Keating, Mr. Willsie was unable to do so.
Both Canadian Liberty Net and Tony McAleer were served with the show cause order on June 15, 1992 and were, on June 23, 1992 served with the affi davits of Andrew Epstein sworn on June 12, 1992 and June 10, 1992, the affidavit of Liliane Mercier and notice of motion (see affidavit of service of Partap Girn and Edward Byers).
Counsel for the respondents Canadian Liberty Net and Peterson at the hearing before Mr. Justice Mul- doon, was served with a copy of the show cause order and the same other documents as was served on Canadian Liberty Net and McAleer.
The applicant called two witnesses. The respon dents did not call any witnesses.
Liliane Mercier, an employee of the Canadian Human Rights Commission stated that on June 5, 1992, in Vancouver, B.C., she dialed telephone num ber 604-266-9642. The following is the message that, Ms. Mercier states that she heard:
Hello and welcome to the Canadian Liberty Net Liaison line for May the 28th. You may be wondering what the new num ber is for the Liberty Net and if that's what you called for you won't be disappointed. There may be a few problems with the system at the moment but we'll be working out those bugs over the next little while, please be patient. You know that we can now say exactly what we want without officious criticism and sanction, so please enjoy our extensive list of new messages. The new number for the Canadian Liberty Net in exile is area code 206-734-1306, that's area code 206-734- 1306. Please enjoy our refreshing Liberty Net.
Ms. Mercier states that she telephoned a number in the United States, area code 206-734-1306 and taped what she heard on the telephone line. Exhibit A-2 is the tape of the messages heard by this witness on June 5, 1992. Exhibit A-1 is the transcript of the messages heard by Ms. Mercier after dialing number
206-734-1306. The opening of the message is the fol lowing:
Calling 206-734-1306—Bellingham WA, USA
You have reached the Canadian Liberty Net In Exile, Canada's computer operated voice message centre to promote cultural and racial awareness amongst White people. If you are offended or upset by the free expression of European cultural and racial awareness press 6 on your touch tone phone and do not attempt to enter the Canadian Liberty Net. For those of you who wish to hear our messages press 1 on your touch tone phone to learn about how to use the system or press 88 to go to the main menu.
[Pressed 88]
Welcome to the main menu, please note any messages and or editorial comment found in this system are those of the con tributor or box holder and do not necessarily reflect the opin ions and or the intentions of the Canadian Liberty Net. If at any time you wish to return to the previous menu press 9 on your touch tone phone.
Now press 1 for the Leadership Forum, press 2 for a Lesson in History, or press 3 for Miscellaneous Messages, or you can press 5 to leave a message. Please note once you have left your message you will be disconnected.
[Pressed 1]
This is the leaders menu. Press 1 for Canada, 2 for the U.S. and
3 for International.
[Pressed 1]
Press 1 to hear from Janice Long, wife of Aryan Nations Leader Terry Long, press 3 to hear from Ernest Zundel or press
4 to hear from the Heritage Front.
The full message obtained by this witness is found in Exhibit A-1.
The applicant called as its second witness Mr. Andrew Epstein, an articled student with the law firm of Arvay, Finlay. Mr. Epstein states that on May 6, 1992 he called a telephone number 266-9642 to listen to the following message:
This is April 20 1992 and you have reached the Canadian Lib erty Net broadcasting from the Soviet Socialist People's Republic of Canada. The federal court injunction is still in effect and so we can only provide a limited and sanitized update. The new U.S. phone line has been ordered but there is a wait for the installation. We should be up and running by May 4.
Sorry we were unable to answer the phone on Sunday the 19th, but we were attending a birthday party. We will be here next Sunday.
Tom Metzger's hotline will feature a live call-in on Saturday night from 6 to 9 Pacific, not Wednesday as was previously announced.
We still need your financial support for the upcoming legal battle. We have retained Doug Christie to represent the Liberty Net against the Human Wrongs Tribunal scheduled for May 25 through 29 in Vancouver, location to be announced later. Send your donations to: Canadian Liberty Net P.O. Box 35683 Van- couver, B.C. V6M 4G9.
Leave a message after the beep.
As a result of cross-examination, Mr. Epstein states that he had sworn to an affidavit on June 12, 1992, that a Gordon Mackie had testified before the Canadian Human Rights Tribunal while Mr. Epstein was present. Mr. Gordon Mackie was giving evi dence "saying something regarding the phone line in question" (page 10, transcript of show cause hearing). The telephone line in question was 266-9642 in Van- couver containing the above message.
Mr. Epstein states that when he swore to the affi davit of June 12, 1992, he did so on the basis of rec ollection but subsequently he obtained a transcript of the hearing. He also states that his recollection, on June 12, 1992, is a verbatim and accurate recollection and that the said Mr. Mackie informed the Canadian Human Rights Tribunal that the business records of B.C. Tel indicate that Tony McAleer was registered with B.C. Tel as a partner in Canadian Liberty Net.
Exhibit B to Epstein's June 12, 1992 affidavit is a computer printout of B.C. Tel's records.
266 9642 7 **(BSC) basic information** date: 92/05/20
DEREK J PETERSON DIB CANADIAN LIBERTY NET bp: 92/05/24
sa: 3576 W 36th AVE VAN BC V6N2S2 cid:
ba: 3576 W 36th VAN BC V6N2S2 mda:
key ac: N major acct:
npub: N dep: $0 no dir: 001 svc: B org date: 91/10/09
cc: 8 trl: $99999 no bil: 1 cr ch ex: N inst date:
forms: trmt his: 000000 tx sta: TT da ex: N out date:
rocp: N ---T--- cr cd: N rate grp: 14 out on: 10 ci PR/TONY MCALEAR 3221629;PREV3221209;LD10
sbi instr: resp no: pm outlet:
s&e code mac__qty amount_fps tic pois rac
B SLT CPE Al 1 48.25 TT 23027 2D00A65 Cl
CF Al 1 5.00 TT 23218 2E01CO2 Gl
TCL CPE Al 1 2.55 TT 23840 3U01D65 Gl
COMMENTS AVAILABLE
FOR SPECIAL SERVICE INQUIRIES TRANSFER THE CUSTOMER TO 430-7511. ABCD CID: 000208065
tn: 266 9642 screen: BSC month: 1 start: past:
10:09:11
SNA 02 BCTIMSC NUM LPT1 A
Mr. Epstein gave evidence that Mr. Mackie, in his presence, informed the Canadian Human Rights Tri bunal that "PR Tony McAlear" [sic] on the B.C. Tel records indicates that this person is a partner in the Canadian Liberty Net.
No other evidence was made by the applicant. No evidence was called for by the respondents.
The Issues:
1) Can the respondents Canadian Liberty Net and Tony McAleer be found guilty of contempt in that a telephone message in Canada directs a caller to call a telephone number in Bellingham, Washington to hear a message which had been prohibited from being given in Canada as a result of an injunction order dated March 27, 1992?
2) Has it been shown, beyond a reasonable doubt, that the injunction order issued on March 27, 1992
has been breached by the respondents Canadian Lib erty Net and by Tony McAleer?
After hearing the evidence, I am satisfied that the following facts have been established.
A) An injunction order of this Court was issued by Mr. Justice Muldoon on March 27, 1992 as regards Canadian Liberty Net and Derek J. Peterson as named respondents and "including Cori Keating and Tony McAleer" to prevent them from transmit ting messages "which are found to be capable of exposing persons to hatred or contempt by reason of the fact that those persons are identifiable on the basis of race, national or ethnic origin, colour or religion".
The injunction order specifically enjoined the respondents, including Keating and McAleer, from transmitting specific messages. Those prohibited messages are too numerous to include in this deci sion but may be read in the injunction order of March 27, 1992.
B) Following the issuance of the injunction order, a call to a Vancouver telephone number 604-266- 9642 would result in a telephone message given by the Canadian Liberty Net. The message states that because of a Federal Court injunction a new U.S. telephone line has been ordered.
C) That on June 5, 1992, a telephone call to 604- 266-9642 resulted in a message that the caller has reached the Canadian Liberty Net liaison line, that a new number for the Canadian Liberty Net "in exile" exists and it is "area code 206-734-1306", that the reason for the new number is "we can now say exactly what we want without officious criti cism and sanction".
I take this statement to mean, to avoid the terms of the injunction order of Mr. Justice Muldoon, the respondent, Canadian Liberty Net directs the caller to a telephone number in Bellingham, Washington, U.S.A. It is not denied that the telephone number 206-734-1306 is in Bellingham, Washington in the U.S.A.
D) I am satisfied that Exhibit B to the affidavit of Mr. Epstein of June 12, 1992 indicates that the
telephone number 266-9642, as of May 20, 1992 (or June 5, 1992 affidavit of Mercier) was regis tered in the name of Derek Peterson and Canadian Liberty Net. Tony McAleer is a "partner" accord ing to the evidence of Mr. Epstein.
I would comment on the evidence of Mr. Epstein as it relates to Mr. McAleer being a partner in the Canadian Liberty Net telephone number 266-9642. This evidence was not solicited by counsel for the applicant. Exhibit B was not before me at the show cause hearing. It was counsel for McAleer in cross-examination that brought out this evidence. It was he who decided to question Mr. Epstein about an affidavit that was filed only for the purpose of issuing a show cause order. This being the case, I am satisfied from Exhibit B and the viva voce evi dence by Mr. Epstein in answering counsel for McAleer questions, that McAleer is a partner in Canadian Liberty Net telephone number 266-9642.
E) Most of the messages heard by Lilian Mercier on June 15, 1992 after calling telephone number 206-734-1306 are messages which Mr. Justice Muldoon specifically prohibited. Examples of this, and I do not intend to repeat the messages, as they do not warrant repeating, can be found in Exhibit A-3, Mr. Justice Muldoon's injunction order at page 4, line 32 and following, and then by looking at Exhibit A-1 page 9 under the words "[Pressed 3J" it is abundantly clear that the message is the prohibited message. Also see Exhibit A-3 page 5 and compare Exhibit A-1 page 15 under the words "[Pressed 5]" the same message is communicated.
I do not believe it necessary to give further exam ples. It is clear that the messages given from the Bellingham, Washington telephone number are a repetition of a number of prohibited messages.
In fact, counsel for McAleer and Canadian Liberty Net does not deny that the prohibited messages as found in the injunction order are being transmitted by Canadian Liberty Net from Bellingham, Wash- ington.
F) The injunction order of Mr. Justice Muldoon was not served on the respondent Canadian Liberty Net itself before the show cause order was requested on June 15, 1992 nor was it served per sonally on the respondent Peterson, nor on Tony McAleer or Keating before June 15, 1992.
THE COURT: Before you go into your argument, do you have any evidence that the Injunction was ever served on Mr. McAleer or anyone else?
MR. FINLAY: No, I don't, sir.
G) The show cause order was not served on Peter- son or Keating as they could not be found. In that they were not served, they are not part of these proceedings.
The Law of Contempt
In the case of Cartier, Inc. v. Cartier Men's Shops Ltd. (1988), 21 C.P.R. (3d) 219 (F.C.T.D.), at pages 223-225 (the appeal of this decision was dismissed [(1990), 32 C.P.R. (3d) 383 (F.C.A.)]), I stated the following as to the law of contempt:
Mr. Justice Heald, in the case of Maison des Semicon- ducteurs Ltée v. Apple Computer Inc. unreported, F.C.A. A-111-87 at p. 5, March 17, 1988 [reported 20 C.P.R. (3d) 221, at p. 224]* quoted Lord Denning in speaking of the proper approach to be taken in contempt proceedings.
Lord Denning M.R. articulated the proper approach suc cinctly in the case of Re Brambevale Ltd., [1970] Ch. 128 at 137:
"A contempt of court is an offence of a criminal charac ter. A man may be sent to prison for it. It must be satis factorily proved. To use the time honoured phrase, it must be proved beyond reasonable doubt .... Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reason able doubt."
(Italics are mine.)
At p. 6 [p. 5 C.P.R.], Mr. Justice Heald goes on to state, in speaking of the test to be applied in contempt proceedings: "The test is the one required for offences of a criminal nature, namely, proof beyond a reasonable doubt." (Emphasis is mine.)
* Editor's Note:
Also reported at [1988] 3 F.C. 277 sub nom. Apple Com puter, Inc. v. MacKintosh Computers Ltd.
The issue of contempt and the elements required to find con tempt were reviewed in the case of Valmet Oy v. Beloit Canada Ltd unreported, F.C.A., A-602-86, February 1, 1988 [reported 20 C.P.R. (3d) 1, 82 N.R. 235]) both by Mr. Justice Pratte and Mr. Justice Marceau.
Mr. Justice Pratte, in speaking of Rule 355(1) which reads as follows:
Rule 355 (1) Anyone is guilty of contempt of court who disobeys any process or order of the Court or a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court. In particular, any officer of justice who fails to do his duty, and any sheriff or bailiff who does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes any rule the violation whereof renders him liable to a penalty, is guilty of con tempt of court.
states at p. 14 and 15 [pp. 10-11 C.P.R.]:
Before discussing that judgment, it is necessary to have in mind certain elementary principles:
(1) As Rule 355(1) of the Federal Court Rules makes it clear, a person may be guilty of contempt of court either by disobeying an order of the court or by obstructing or interfering with the course of justice.
The only person who may disobey an order of a court is the party to whom that order is addressed. However, a third party who knowingly aided and abetted a party to disobey an injunction may be found guilty of contempt, not because he breached the injunction, but, rather, because he acted in a manner that interfered with the course of justice.
(2) A person cannot be found guilty of contempt of court if the contemptuous behaviour is not proved beyond a rea sonable doubt. In such matter, the standard of proof is similar to that applicable in criminal matters.
(3) A court injunction must be complied with strictly in accordance to its terms. However, the defendant against whom an injunction is pronounced is enjoined from committing the prohibited acts whatever be the method he may use in committing them. It follows that a defen dant will be in breach of the injunction pronounced against him not only if he himself contravenes the order of the court but also if the order is breached by his agent, workman, servant or another person acting for him.
(Emphasis is mine.)
Mr. Justice Marceau, at p. 3 of his judgment, states [pp. 17-8 C.P.R.]:
1. Considering what has to be proved, it is well established that the activity said to have constituted the contempt must be one clearly covered by the prohibition, which implies that it be expressly or by necessary inference mentioned in the
order. Because of this prerequisite, I do not think that the trial judge was entitled to find, as he did, that the commis sion of a certain action, although not covered by the injunc tion, was nevertheless contemptuous as being contrary to the "spirit" thereof....
2. Coming now to the quality of the proof, it is also well established that it must be of the high standard necessary for a criminal conviction, not the lower standard sufficient to dispose of a disputed question of fact in a civil litigation. The proof must satisfy beyond any reasonable doubt, not merely on a balance of probability. (Emphasis added.)
Considering the above and the very strict require ments necessary to be met before one can be found in contempt of court, are the respondents Canadian Lib erty Net and McAleer in contempt of court of the injunction issued by the Court on March 27, 1992?
Evidence and Discussion
As I have stated, the evidence is clear that Cana- dian Liberty Net has continued to make use of the telephone number it had before the issuance of the injunction. This, in itself, is permitted as the order does not prevent the continued use of the telephone number. The order prohibits Canadian Liberty Net, Peterson, Keating and McAleer by themselves, their servants, agents, volunteers, co-operants or otherwise anyone having knowledge of the injunction from communicating or causing to be communicated by telephonic means those messages or that menu of messages or any part thereof identified in the reasons for order issued by Mr. Justice Muldoon on March 3, 1992.
I am completely satisfied that both McAleer and Canadian Liberty Net knew of the injunction order and what it contained. Counsel for Canadian Liberty Net at the hearing before Mr. Justice Muldoon was Mr. Douglas Christie and he received a copy of the injunction order. I can and do conclude from this that his client was made aware of the injunction order. Furthermore, on Exhibit A-1, filed with the affidavit of Ms. Mercier, it states that "the new number for Canadian Liberty Net in exile is area code 206-734- 1306". I am satisfied that the reason it is operating "in exile", in the U.S.A., is because of its knowledge
of the injunction order. This becomes most obvious when one looks at Exhibit A-4 where the message is:
This is April 20, 1992, and you have reached the Canadian Liberty Net broadcasting from the Soviet Socialist Peoples Republic of Canada. The Federal Court injunction is still in effect and so we can only provide a limited and sanitized update. The new U.S. phone line has been ordered, but there is a wait for installation. We should be up and running by May 4. (Underlining is mine.)
I am also satisfied that Tony McAleer had knowl edge of the injunction for the same reasons as Cana- dian Liberty Net. The message on the telephone tape on April 20, 1992 states that the Canadian Liberty Net has been reached and that because of the injunc tion order, a new telephone number in the U.S. has been ordered.
As I have stated, Exhibit B to Epstein's June 12, 1992 affidavit clearly indicates, with the viva voce evidence of Mr. Epstein, that McAleer was a partner in Canadian Liberty Net. The message refers to the injunction order of the Federal Court.
The evidence satisfies me beyond a reasonable doubt that the contents of the injunction order were known to Canadian Liberty Net and McAleer on June 5, 1992. As I have stated, Mr. Justice Pratte, in the Valmet Oy v. Beloit Canada Ltd. [(1988), 20 C.P.R. (3d) 1 (F.C.A.)] case (supra) states that a defendant will be in breach of the injunction pronounced against him not only if he contravenes the order of the Court but also if the order is breached by his agent, workman, servant "or another person acting for him". [Underlining added.]
Tony McAleer was not a named respondent in the proceedings brought before Mr. Justice Muldoon. Nevertheless, Tony McAleer was specifically named in the injunction order and prohibited from causing to be communicated the messages mentioned in Mr. Justice Muldoon's order of March 27, 1992.
As I have stated, the messages carried from the U.S. Bellingham, Washington telephone number are in breach of the March 27, 1992 injunction order in that the messages are, in most part, the same prohib ited messages as found in the injunction order.
It is important to understand what it is that Cana- dian Liberty Net and McAleer have done. This may still be continuing but I have no evidence of this.
A call is made to the Vancouver, B.C. telephone number of Canadian Liberty Net of which McAleer is a partner. The caller is informed that he reached the Canadian Liberty Net and is referred to the Belling- ham telephone number in the U.S. where the caller is told he or she has reached the Canadian Liberty Net in exile and is then told to press a particular number on his telephone to receive a message which mes sage, I am satisfied, is prohibited from being trans mitted by the injunction order of Mr. Justice Mul- doon.
I do not have any evidence that the transmission of the messages on the U.S. telephone of Canadian Lib erty Net is illegal in the United States. I believe that whether or not the transmission of the messages is legal or not, it matters not for the purpose of the pre sent hearing.
As I have stated, Mr. Justice Muldoon specifically prohibited Canadian Liberty Net and McAleer from causing to be communicated the prohibited and I say reprehensible messages. I am satisfied that by informing persons to call the Bellingham telephone number, both Canadian Liberty Net and McAleer are causing to be communicated the prohibited and rep rehensible messages.
It is clear from the evidence (Exhibit A-3) that this method of causing the prohibited messages to be communicated to Canadians was carefully thought out. What Canadian Liberty Net and McAleer are now attempting to say in their defence is that the Court has no jurisdiction over them as the prohibited messages are being transmitted from the U.S.A. They do not deny the messages are the same as the prohib ited messages found in the injunction order.
The evidence is overwhelming, and beyond any reasonable doubt that Canadian Liberty Net and McAleer purposely and methodically arranged to have the prohibited messages transmitted by tele phone to Canadians by specifically and purposely directing anyone who called the Canadian telephone number to call the American telephone number to hear the prohibited messages.
Clearly the respondents Canadian Liberty Net and McAleer acted in such a way as to interfere with the orderly administration of justice and are thus in con tempt of court.
Conclusion
As I have stated, the messages transmitted by the Canadian Liberty Net from its Bellingham, Washing- ton telephone number are most reprehensible and an insult to the peoples against whom they are directed. Notwithstanding the fact that Mr. Justice Muldoon found that the messages are capable of exposing per sons to hatred or contempt by reason of the fact that those persons are identifiable on the basis of race, national or ethnic origin, colour or religion, Canadian Liberty Net and McAleer persist in causing to be communicated these hateful and reprehensible, messages.
I believe that the breach of the March 27, 1992 injunction order warrants a most serious penalty in order to ensure that this type of behaviour does not continue.
For this reason, the parties are to appear before me or any other judge of the Federal Court of Canada at the time and place stated in my order.
Costs in favour of the applicant.
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