Citron and Toronto Mayor’s Committee v. Zundel

The history of adjudication before the Canadian Human Rights Tribunal has demonstrated that complaints alleging the communication of 'hate messages' have invariably been the most vigorously defended, protracted and intensely emotional. This case proved to be no different. In the end, the inquiry into these complaints required 55 days of hearing, spanning over a number of years. There were constant evidentiary objections, and several motions to discontinue the proceedings for a variety of different reasons.

Prior to setting out our reasons for decision on the merits of these complaints, we believe that it is necessary to review the procedural history of this hearing to provide the context for a number of our subsequent comments. The nature of the motions advanced and the emotions aroused in the course of the hearing ultimately affected the timing and orderly progression of this hearing.

In particular, we must note that the Respondent did not participate in the submission of final argument on the merits of the case. He did provide written submissions on his constitutional motion challenging the validity of s. 13(1) of the Act, but we have been forced to turn to arguments raised at other times in order to extrapolate his defence on the merits. Obviously, there are certain constraints on our ability to anticipate the Respondent's arguments, however, we have tried to put forward all of the arguments initially advanced in the course of the hearing by Mr. Zündel's counsel prior to his withdrawal from the proceedings, as well as those issues that arise on the evidence before us.

A chronology of the main procedural elements in this case is as follows:
a. The complaints were filed in July and September of 1996;

b. The matter was referred by the Commission to the Tribunal for a hearing on the merits on November 22, 1996;

c. The hearing was convened on May 26, 1997 before a three-member panel (3). The first three days of the hearing were reserved for arguments on a preliminary motion brought by the Respondent to have the matter adjourned; this motion was dismissed on May 27, 1997.

d. Intervener applications brought by the League for Human Rights of B'Nai Brith Canada, Canadian Holocaust Remembrance Association, and Simon Wiesenthal Center were heard on May 27, 1997, and allowed on June 19, 1997. The further application for intervener status brought by the Canadian Jewish Congress, and Canadian Association for Free Expression Inc. were allowed on October 14, 1997 and December 15, 1997, respectively. The application of Mr. Marc Lemire was denied.

e. The Commission opened its case on October 14, 1997, calling six witnesses, including three experts: one each in the fields of telecommunication and the Internet, discourse analysis, and historical anti-Semitism;

f. The Respondent opened his case on May 28, 1998, and called eight witnesses, including two experts, one in the field of telecommunications and the Internet, the other in the area of Holocaust Revisionism. Four other witnesses tendered as experts by the Respondent were not accepted as experts in the field in which they were being proposed (4);

g. Literally, from the day the hearing convened to the final days reserved for oral argument the Respondent brought a series of motions requesting that the hearing be adjourned or stayed:

1. Preliminary motion to stay on May 27, 1997;
2. October 14, 1997 motion to obtain information regarding Member's background;
3. April 8, 1998 motion to stay for institutional bias, based on Madam Justice McGillis' decision in Bell (#1);
4. June 10, 1998 motion alleging apprehended bias regarding Member Devins;
5. November 12, 1998 motion on institutional bias as a result of amendments to the Canadian Human Rights Act;
6. December 7, 1998, motion regarding resignation of Member Jain;
7. November 9, 2000 motion to adjourn pending the appeal of the Federal Court decision;
8. February 26, 2001 motion to stay as the issue was now alleged to be moot, on the grounds of counsel's assertion that Mr. Zündel had moved to the United States.

The Tribunal denied all of these motions, and proceeded in each instance to hear the evidence and argument on the merits of the complaints.

h. As the hearing progressed, many of the rulings made by the Tribunal were also reviewed in the Federal Court of Canada. On April 13, 1999, the Federal Court, Trial Division allowed the Respondent's motion alleging the apprehended bias of Member Devins. Although this decision was subsequently overturned by the Federal Court of Appeal on May 18, 2000, the hearing was adjourned for over 18 months;

i. On November 15, 2000 the Respondent brought a formal motion challenging the constitutionality of s. 13(1) of the Act. On November 9, 2000 the Respondent had requested that the constitutional motion be dealt with by affidavit evidence. After this request was denied, the Respondent's counsel D. Christie withdrew from the hearing. Counsel B. Kulazska did remain, and actively participated in the hearing on Mr. Zündel's behalf up to, but not including the presentation of final argument.

j. The Canadian Association for Free Expression Inc. called five witnesses on the Constitutional motion, Ms. Kulazska was present for the examination of these witnesses.

k. On December 7, 2000, at the conclusion of the presentation of evidence, the Tribunal established a schedule for final argument, with written submissions. The Respondent submitted written argument on the constitutional motion only.

l. Hearing dates were set for oral argument to begin February 26, 2001. At the commencement of oral argument, the Respondent brought a final motion to dismiss the complaints as moot, this motion was dismissed. Thereafter, the Respondent did not participate in oral submissions.