Date: 20100625
Docket:
T-293-07
Citation: 2010 FC 679
Ottawa,
Ontario,
June 25, 2010
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
RICHARD WARMAN
Complainant
and
CANADIAN HUMAN RIGHTS COMMISSION
Commission
and
TERRY TREMAINE
Respondent
AMENDED REASONS FOR ORDER AND ORDER
- ROWBOTHAM
(Delivered from the Bench at Saskatoon, Saskatchewan, on June 17, 2010, as edited)
[1]
In February 2007, the Canadian Human Rights Tribunal
found Mr. Terry Tremaine had engaged in the discriminatory practice of
communicating or causing to be communicated by the means described in Section
13(2) of its Act, namely the Internet, material of the type which was found to
violate Section 13(1) in the present case or any other matter of a
substantially similar content that is likely to expose a person or persons to
hatred or contempt by reason of the fact that that person or persons is
identifiable on the basis of a prohibited ground of discrimination. The
Tribunal issued a Cease and Desist Order and levied a fine of $4,000.
[2]
Later that month the Order was filed with this
Court and entered as a Federal Court Order for the purposes of enforcement. Mr.
Tremaine sought a judicial review of the Tribunal's decision. Madam Justice
Snider dismissed his application in September 2008. Her reasons are reported at
2008 FC 1032.
[3]
In March 2009 the Commission filed a Notice of
Motion for a Show Cause Order. The Commission sought an order under Rule 467
of the Federal Courts Rules requiring Mr. Tremaine to appear at a
stipulated time and place to answer allegations of contempt, to be prepared to
hear proof of the alleged contempt of court for communicating by means of the
internet messages that are likely to expose persons to hatred or contempt by
reason of race, national or ethnic origin, colour or religion, and to be
prepared to present any defence he may have. That motion did not proceed.
However on May 20, 2010 the Commission served Mr. Tremaine with an updated
show cause motion presentable in Saskatoon
on June 17, 2010. Mr. Tremaine, who to that point had been self-represented, filed
a motion through counsel, Mr. Douglas H. Christie, who is with us today (June
17, 2010) by way of teleconference, to require that public funds be provided
for his defence and that the motion to show cause be adjourned in the interim.
It was supported by a hearsay affidavit from Mr. Christie's legal secretary
that he had been informed by Mr. Tremaine and believed that Mr. Tremaine was
without sufficient funds to defend himself.
[4]
That motion was made under Federal Courts Rule
369 whereby a party requests that it be decided on the basis of written
representations. I grant that request. As I find the motion is without merit,
I do not have to hear from Mr. Warman, who does not appear to have been served,
or from the Commission. I dismiss it for these reasons.
[5]
The issue before the Court on a motion to show
cause is not whether Mr. Tremaine is in contempt, which must be proven beyond a
reasonable doubt, but rather whether the Commission has established a prima
facie case. If it has, then a hearing date is set down where live evidence
is presented. Mr. Tremaine asserts that he faces double jeopardy as there is a
criminal charge pending against him; that Section 13 of the Act with its
enforcement provisions is unconstitutional as found by the Commission itself in
the subsequent Lemire decision, 2009 CHRT 26, which I understand
is currently under judicial review, and that in any event he did not
"communicate" within the meaning of the Act.
[6]
These assertions are prima facie wrong,
which is not to prevent him from raising them if a show cause order is issued.
The Tribunal's order is final. Madam Justice Snider's decision was not
appealed. Furthermore, as she noted, there had been no notice given under
Section 57 of the Federal Courts Act of a constitutional question, and none has
been given in these proceedings either. Without such a notice, this Court has
to presume that the legislation is valid.
[7]
Furthermore, and in any event, one must respect
an unconstitutional order unless and until it is formally struck down or
amended by the Court. In Paul Magder Furs Limited v. Ontario (Attorney
General) (1991), 6 O.R. (3d) 188, Brooke J.A. of the Ontario Court of
Appeal stated that it is elementary that so long as a law or an order of the
court remains in force it must be obeyed. In Canada (Human Rights
Commission) v. Taylor,
[1990] 3 S.C.R. 892, while the majority found it unnecessary to deal with the
issue, McLachlin J. said at page 974:
In my opinion, the 1979
order of the Tribunal, entered in the judgment and order book of the Federal
Court in this case, continues to stand unaffected by the Charter violation
until set aside. This result is as it should be. If people are free to ignore
court orders because they believe that their foundation is unconstitutional,
anarchy cannot be far behind. The citizens' safeguard is in seeking to have
illegal orders set aside through the legal process, not in disobeying them.
[8]
This particular motion for show cause is limited
to cease and desist. The Lemire decision relates to other aspects such
as the imposition of a fine, and the Section 13 of the Canadian Human Rights
Act insofar as it relates to cease and desist orders was upheld by the Taylor
decision to which I just made reference.
[9]
Furthermore, Rowbotham orders, so called,
have been held not to apply in civil contempt matters. I refer to the decision
of the Ontario Supreme Court in Burgoyne Holdings Inc. v. Magda (2005),
74 O.R. (3d) 417. As well Rule 81(2) of the Federal Court Rules must be
taken into account. Although motions may be supported by affidavits on
knowledge and belief, Rule 81(2) states:
Where an Affidavit is
made on belief, an adverse inference may be drawn from the failure of a party
to provide evidence of persons having personal knowledge of material facts.
[10]
Mr. Tremaine has personal knowledge of his
financial situation and is present in the court. A cross-examination of the
affiant, a straw man, would be useless. I draw an adverse inference.
[11]
It was brought to my attention today that Mr.
Tremaine had deposited an affidavit of assets with the Registry in Regina
on 9 June 2010. Apparently it was not accepted for filing because it was not accompanied
with proof that it had been served upon Mr. Warman and upon the Commission, and
was in support of a motion not yet served and filed. It is unfortunate that
during the course of the hearing neither Mr. Tremaine nor his counsel brought
to my attention the existence of this affidavit, which did not form part of his
motion record as filed by counsel. In the circumstances, an adverse inference
under Rule 81(2) was not justified.
[12]
Nevertheless, the outcome must remain the same
as a Robowtham order does not apply in civil contempt matters.
ORDER
FOR
REASONS GIVEN UPON A MOTION IN WRITING ON BEHALF OF THE RESPONDENT pursuant
to Rule 369 for an order akin to a Rowbotham order, i.e. that his defence
to the motion of the Canadian Human Rights Commission for a show cause order
under Rule 467 that he be called upon to answer allegations of contempt of
court be publicly funded and that the show cause motion be adjourned in the
interim and for other relief;
THIS
COURT ORDERS that:
1.
The motion is dismissed.
2.
The whole without costs.
“Sean Harrington”
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