[2]
The
complaint was referred by the Commission to the Canadian Human Rights Tribunal
(the Tribunal). An oral hearing was held before a member of the Tribunal who
issued a decision dated February 2, 2007. In its decision, the Tribunal
concluded that material posted to the website by Mr. Tremaine violated s. 13(1)
of the Canadian Human Rights Act, R.S.C. 1985, c. H-6
(the Act) and thus found that the complaint against Mr. Tremaine was
substantiated. The Tribunal ordered that Mr. Tremaine cease the discriminatory
practice of communicating “material of the type which was found to violate
section 13(1) in the present case, or any other messages of a substantially
similar content” (the cease and desist order) and that he pay a penalty of
$4000.
[3]
Mr.
Tremaine seeks judicial review of the Tribunal’s decision. In the alternative,
he requests that the Court stay this judicial review pending the disposition
of the case of Richard Warman v. Marc Lemire, Tribunal Case No.
T1073/5405 (Lemire), in which the constitutionality of s.13 of the Act
is at issue.
[4]
At
the hearing of this application, I heard oral submissions from the Commission
and Mr. Tremaine. Mr. Warman did not appear; nor did he file written
submissions.
I. Issues
[5]
The
issues that are raised by this application are as follows:
1.
Did
the Tribunal err by finding that Mr. Tremaine acted contrary to s.13 of the
Act?
2.
By
imposing the cease and desist order under s. 54(1)(a) of the Act, did the
Tribunal err by taking into account irrelevant considerations; specifically, to
deliver a “public denunciation” and to “educate” others?
3.
In
fixing a penalty of $4000 under s.54(1)(c) of the Act, (a) did the Tribunal
fail to take into account the financial means of Mr. Tremaine; and (b) did the
Tribunal take into an irrelevant consideration, specifically, Mr. Tremaine’s
lack of remorse?
4.
Does
s.13 of the Act violate ss. 2(a) and (b) of the Canadian Charter of Rights
and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter) in a
manner not justified under s.1 thereof, therefore being of no force or effect?
5.
Should
the Court grant a stay of proceedings pending the disposition of the case of Lemire?
II. Statutory
Framework
[6]
Mr.
Tremaine has been found to be in violation of s. 13(1) of the Act. That
provision is as follows:
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13.
(1) It is a discriminatory practice for a person or a group of persons acting
in concert to communicate telephonically or to cause to be so communicated,
repeatedly, in whole or in part by means of the facilities of a
telecommunication undertaking within the legislative authority of Parliament,
any matter that is likely to expose a person or persons to hatred or contempt
by reason of the fact that that person or those persons are identifiable on
the basis of a prohibited ground of discrimination.
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13. (1) Constitue un acte
discriminatoire le fait, pour une personne ou un groupe de personnes agissant
d’un commun accord, d’utiliser ou de faire utiliser un téléphone de façon
répétée en recourant ou en faisant recourir aux services d’une entreprise de
télécommunication relevant de la compétence du Parlement pour aborder ou
faire aborder des questions susceptibles d’exposer à la haine ou au mépris
des personnes appartenant à un groupe identifiable sur la base des critères
énoncés à l’article 3.
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[7]
Because
the method of communication in issue is the Internet, s. 13(2) of the Act is
relevant. This provision was added to the Act in 2001 (S.C. 2001, c. 41, s. 88)
and states that:
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(2)
For greater certainty, subsection (1) applies in respect of a matter that is
communicated by means of a computer or a group of interconnected or related
computers, including the Internet, or any similar means of communication, but
does not apply in respect of a matter that is communicated in whole or in
part by means of the facilities of a broadcasting undertaking.
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(2)
Il demeure entendu que le paragraphe (1) s’applique à l’utilisation d’un
ordinateur, d’un ensemble d’ordinateurs connectés ou reliés les uns aux
autres, notamment d’Internet, ou de tout autre moyen de communication
semblable mais qu’il ne s’applique pas dans les cas où les services d’une
entreprise de radiodiffusion sont utilisés.
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[8]
Where
the Tribunal finds that a complaint related to a discriminatory practice
described in s. 13 is substantiated, the Tribunal may issue a cease and
desist order, as provided for in s. 53(2)(a), which states:
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(2) If at the conclusion of the inquiry the member or panel finds that
the complaint is substantiated, the member or panel may, subject to section
54, make an order against the person found to be engaging or to have engaged
in the discriminatory practice and include in the order any of the following
terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory
practice and take measures, in consultation with the Commission on the
general purposes of the measures, to redress the practice or to prevent the
same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or
arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing
a plan under section 17;
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(2) À l’issue de l’instruction, le membre
instructeur qui juge la plainte fondée, peut, sous réserve de l’article 54,
ordonner, selon les circonstances, à la personne trouvée coupable d’un acte
discriminatoire :
a) de mettre fin à l’acte et de
prendre, en consultation avec la Commission relativement à leurs objectifs
généraux, des mesures de redressement ou des mesures destinées à prévenir des
actes semblables, notamment :
(i) d’adopter
un programme, un plan ou un arrangement visés au paragraphe 16(1),
(ii) de
présenter une demande d’approbation et de mettre en oeuvre un programme
prévus à l’article 17;
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[9]
In
addition, the Tribunal may order that the person found to be in violation of s.
13 “pay a penalty of not more than $10,000” (s. 54(1)(c)). When ordering a
person to pay a penalty, s. 54(1.1) provides a list of factors that must be
taken into account.
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(1.1) In deciding whether to order the person to pay the penalty, the
member or panel shall take into account the following factors:
(a) the nature, circumstances, extent and gravity
of the discriminatory practice; and
(b) the wilfulness or intent of the person who
engaged in the discriminatory practice, any prior discriminatory practices
that the person has engaged in and the person’s ability to pay the penalty.
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(1.1) Il tient compte, avant d’imposer la sanction
pécuniaire visée à l’alinéa (1)c) :
a) de la
nature et de la gravité de l’acte discriminatoire ainsi que des circonstances
l’entourant;
b) de la
nature délibérée de l’acte, des antécédents discriminatoires de son auteur et
de sa capacité de payer.
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III. Analysis
A. Standard of Review
[10]
I
begin by examining the appropriate standard of review for the Tribunal’s
decision. A determination of whether Mr. Tremaine’s web postings fell within
the ambit of s.13 of the Act is a question of mixed law and fact. The
Tribunal’s decisions to issue a cease and desist order and to order Mr.
Tremaine to pay a $4000 fine are exercises of the Tribunal’s discretion; these
decisions are mainly fact driven and discretionary.
[11]
The
Supreme Court of Canada stated in Dunsmuir v. New
Brunswick,
2008 SCC 9 at para. 57, that courts may rely on existing jurisprudence in
determining the proper standard of review.
[12]
The
existing jurisprudence indicates that the appropriate standard of review for
issues of mixed law and fact from the Tribunal is reasonableness. (See Choprav.
Canada (Attorney General), 2006
FC 9, 285 F.T.R. 113 at para. 40, aff’d 2007
FCA 268, [2008] 2 F.C.R. 393, International
Longshore & Warehouse Union (Marine Section), Local 400 v. Oster
(T.D.), 2001 FCT 1115, [2002]
2 F.C. 430 at para. 22, Goodwin v. Birkett,
2007 FC 428, 312 F.T.R. 71 at para. 15).
[13]
The
reasonableness standard should therefore apply to the first three issues. On
this standard, the decision, the cease and desist order and the penalty must
fall “within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.” (Dunsmuir, supra at para. 47). The Charter
challenge (Issue #4) is a new matter, raised by Mr. Tremaine for the first
time on this judicial review; there is no Tribunal decision and, thus, no
standard of review. Finally, the question of whether a stay is appropriate
(Issue #5) is unrelated to the Tribunal’s decision; again, no standard of
review is applicable.
B. Issue #1: Reasonableness of
the s. 13 finding
[14]
As
noted, the Tribunal found that the s. 13 complaint was substantiated. Mr.
Tremaine submits, in essence, that the decision was not reasonable.
[15]
I
have read the decision and the material that was before the Tribunal and
considered the written and oral arguments of Mr. Tremaine. In my view, the
Tribunal’s decision was reasonable and well-founded.
[16]
The
Tribunal examined each element of a proscribed discrimination under s.13 of the
Act and carefully applied the facts to the law. As evidenced by the record, the
messages were clearly communicated repeatedly by means of a proscribed means of
telecommunication (Internet) by Mr. Tremaine. Mr. Tremaine does not dispute
that the messages were posted by him. The Tribunal provided a detailed analysis
of the meanings of “hatred” and “contempt” and carefully examined evidence of
Mr. Tremaine’s numerous postings. The Tribunal noted the extreme and violent
nature of the postings and concluded that it would offer readers reason to hate
and to be suspicious of minorities. It must also be noted that the Tribunal was
careful to balance Mr. Tremaine’s freedom of expression right with the equality
rights of all individuals in reaching this decision. Ultimately, the Tribunal
correctly applied the evidence to the relevant factors in determining the s.13
violation. The decision was not unreasonable.
C. Issue #2: Cease and desist
order
[17]
Mr.
Tremaine submits that the Tribunal erred by imposing the cease and desist order
in order to publicly denounce him. He submits that the Act ought to be
remedial, attaching no moral approbation to a human rights complaint. By
imposing the cease and desist order in order to publicly denounce Mr. Tremaine
and to educate other Canadians that hate messages would not be tolerated, Mr.
Tremaine asserts that the Tribunal erred. I do not agree.
[18]
Once
the Tribunal determined that Mr. Tremaine’s Internet postings were in violation
of s.13 of the Act, s. 53(2)(a) gives the Tribunal the authority, in its
discretion, to issue a cease and desist order. In its decision, the Tribunal
noted that a cease and desist order can serve several purposes, such as
bringing the accused person’s attention the harmful effect of his messages, while
also preventing and eliminating discriminatory practices. Since continued
promulgation of Mr. Tremaine’s messages would likely submit certain groups to
hatred and contempt, the Tribunal reasonably exercised the discretion assigned
to it under the Act. By the standard of reasonableness, the Tribunal did not
err.
D. Issue #3: $4000 fine
[19]
Mr.
Tremaine submits that the Tribunal failed to take into account the fact that he
had no ability to pay a $4000 fine and also submits that the Tribunal erred in
citing his lack of remorse as a ground for imposing the penalty. I disagree.
[20]
In
assessing a $4000 penalty, the task of the Tribunal was to consider all of the
factors listed under s. 54(1.1), including Mr. Tremaine’s financial situation.
No one factor in s. 54(1.1) is determinative. The tribunal must weigh all of
the evidence before it in determining an appropriate fine. In this case, the
Tribunal did exactly what was required of it. No evidence was ignored. The
Tribunal made note of the fact that Mr. Tremaine had lost his job, did not own
a car or a house and was working a minimal wage job part-time. Although Mr.
Tremaine’s ability to pay was clearly limited by his monthly salary, the
Tribunal correctly balanced this factor with the extreme, malicious nature of
the discriminatory practice.
[21]
I
disagree with Mr. Tremaine’s submission that the Tribunal erred by considering
his lack of remorse in making this order. Lack of remorse is clearly part of a
consideration of the Applicant’s wilfulness and intent – a factor enumerated
under s. 54(1.1)(b). It should also be noted that the Tribunal gave Mr.
Tremaine credit for not having committed any prior discriminatory practices.
[22]
After
balancing all of the relevant factors, the Tribunal ordered a fine of $4,000,
an amount that is less than 50% of the $10,000 maximum provided for in s.
54(1)(c). In sum, the Tribunal came to a reasonable decision with respect to
the penalty.
E. Issue #4: Constitutionality
of s. 13(1) of the Act.
[23]
Although
Mr. Tremaine did not argue the constitutionality of s. 13(1) before the
Tribunal, he has raised a Charter challenge in this judicial review.
Specifically, Mr. Tremaine asserts that s.13 of the Act violates ss. 2(a) and
(b) of the Charter in a manner not justified under s.1 thereof, therefore
being of no force or effect.
[24]
As
acknowledged by Mr. Tremaine, the Supreme Court of Canada has considered the
constitutionality of the provision in Canada (Human Rights Commission) v.
Taylor, [1990] 3 S.C.R. 892. The majority in that case upheld the constitutionality
of s. 13(1), concluding that, while the provision infringes s. 2 of the Charter,
it does so in a manner that is justified under s. 1. The thrust of Mr.
Tremaine’s argument appears to be that the Taylor case was
decided with respect to telephone communication and before the Act was amended
to make explicit reference to the Internet. Accordingly, he submits that the
Court has not dealt with the constitutionality of s. 13(1) and 13(2) in
relation to the Internet.
[25]
Mr.
Tremaine is correct that the Supreme Court made its decision in Taylor before the
inclusion of s. 13(2), as it now reads. There may be an issue to be
decided; I express no view whatsoever. However, the assertion that s. 13(1)
cannot constitutionally apply to Internet postings was not argued before the
Tribunal and, beyond a bald assertion, has not been developed in the context of
this application for judicial review. Further, Mr. Tremaine has not served a
Notice of a Constitutional Question, as required under s.57 of the Federal
Courts Act, R.S.C. 1985, c. F-7.
[26]
In
short, Mr. Tremaine has not presented a foundation upon which the Charter
challenge can be argued and determined by this Court. His request that I
declare s. 13(1) to be inoperative will be dismissed.
F. Issue #5: Appropriateness of
a stay
[27]
In
the alternative, Mr. Tremaine requests a stay of the current judicial review
until the constitutional challenge of s.13 of the Act is finally determined in
the ongoing case of Lemire. He submits that he has no resources to call
witnesses and experts which have already been called in the Lemire case.
Furthermore, it is submitted that a stay was granted in Kulbashian v. Canada (Canadian
Human Rights Commission), 2007 FC 354, another case in which the
constitutionality of s.13 is challenged.
[28]
I
begin by addressing Mr. Tremaine’s submission that a stay ought to be granted
on the basis that another proceeding is before the Tribunal with respect to the
constitutionality of s.13. This was, in essence, the reason that Justice
Heneghan granted the stay order in Kulbashian, supra. In that
case, Justice Heneghan considered the factors set out in WIC Premium
Television Ltd. V. General Instrument Corp., [1999] F.C.J. No. 862
(F.C.T.D.) (QL), including the risk of inconsistent findings, excessive costs
and the capacity of the court to grant the complete or comprehensive remedy.
Since the constitutionality of s.13 had been put in issue by the applicant,
Justice Heneghan saw fit to stay the proceedings pending the outcome of Lemire.
[29]
The
present hearing can be distinguished from Kulbashian by the fact that
the constitutionality of s.13 is not properly put in issue before this Court.
In the preceding section, I dismissed the Applicant’s Charter challenge.
[30]
In
any event, it is well established that a party seeking a stay must satisfy the
Court of three factors (see, for example, Manitoba (A.G.) v.
Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110; RJR MacDonald
Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311)). Mr. Tremaine must
demonstrate that: (i) there is a serious issue to be tried in the underlying
judicial review; (ii) he would suffer irreparable harm if the application were
dismissed; and (iii) the balance of inconvenience favours him. All three
elements must be met before a stay is granted.
[31]
In
this case, Mr. Tremaine fails on all three elements. Firstly, even if I assume
that the constitutionality of s. 13 is a serious issue, I have already
determined that it is not an issue that is properly before me in this case.
Further, Mr. Tremaine has not persuaded me that he would suffer irreparable
harm or that the balance of convenience favours the granting of the stay. Accordingly,
I will dismiss the application for a stay of this judicial review.
IV. Conclusion
[32]
In
conclusion, Mr. Tremaine has not persuaded the Court that the decision of the
Tribunal should be overturned. Further, he has failed to convince me that a
stay would be appropriate. The application for judicial review will be
dismissed, with costs to the Commission.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application for judicial review is dismissed;
2.
Costs are
awarded to the Respondent, the Canadian Human Rights Commission.
“Judith
A. Snider”
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