Docket: A-493-12
Citation: 2014 FCA 192
|
CORAM:
|
DAWSON J.A.
TRUDEL J.A.
WEBB J.A.
|
|
BETWEEN:
|
|
|
TERRY TREMAINE
|
|
|
Appellant
|
|
|
and
|
|
|
CANADIAN HUMAN RIGHTS COMMISSION AND RICHARD WARMAN
|
|
|
Respondents
|
|
|
|
|
REASONS FOR
JUDGMENT
TRUDEL J.A.
I.
Introduction
[1]
Mr. Terry Tremaine is appealing an order dated
November 7, 2012, in which a Judge of the Federal Court (the Judge) sentenced
him for being in contempt of court (2012 FC 1296, [2012] F.C.J. No. 1402) (Reasons).
[2]
Mr. Tremaine argues that the Judge imposed an
unfit sentence as he failed to consider and apply legal principles relating to
sentencing and overlooked relevant mitigating factors. The appellant
specifically asks that the 30-day prison sentence be set aside. He also
requests that portions of the prohibited material (either posted on his website
or posted by him on a third-party website) ordered removed that consist of
publicly available books or pamphlets be severed from the order and thus be
permitted to remain online (appellant’s memorandum of fact and law at paragraph
69).
[3]
For the reasons that follow, I am not persuaded
that the Judge imposed an unfit sentence or that our Court ought to intervene
to vary the Judge’s order. I therefore propose to dismiss the appeal.
II.
Background and Procedural History
[4]
The history of this file dates back to 2004,
when Mr. Richard Warman filed a complaint with the Canadian Human Rights
Commission, alleging that Mr. Tremaine had violated section 13 of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6 (the Act) by posting material on the
Internet that constituted discrimination on the grounds of religion, national
or ethnic origin, race or colour. Following an investigation, the Commission
referred the complaint to the Canadian Human Rights Tribunal (Tribunal).
[5]
In a decision dated February 2, 2007, the
Tribunal concluded that the complaint was substantiated, as the messages posted
by Mr. Tremaine were “likely to expose persons of the
Jewish faith, Blacks or other non-white minorities to hatred or contempt” (2007
CHRT 2 at paragraph 140). The Tribunal ordered Mr. Tremaine to cease and desist
communicating the material that was found to violate section 13 of the Act, or
any material of a similar nature, and ordered Mr. Tremaine to pay a penalty of
$4,000. For the purpose of enforcement, the Tribunal’s order was made an order
of the Federal Court on February 13, 2007, pursuant to section 57 of the Act (appeal
book originally filed in A-468-10, volume 4 at page 924).
[6]
In September 2008, Mr. Tremaine applied for
judicial review of the Tribunal’s decision, which was denied (2008 FC 1032,
[2008] F.C.J. No. 1265). He did not appeal this decision.
[7]
Mr. Tremaine failed to remove from the Internet
all of the messages that the Tribunal had found violated section 13 of the Act
and continued to post additional material of a similar nature.
[8]
As a result, in March 2009, the Commission moved
for a show cause order pursuant to rule 467 of the Federal Court Rules (SOR/98-106),
to require Mr. Tremaine to appear and answer allegations of contempt of court.
On June 22, 2010, the Federal Court issued this order, as it was satisfied
that there was “a prima facie case that contempt has been
committed” (2010 FC 680, [2010] F.C.J.
No. 1002 at paragraph 4).
[9]
Nonetheless, in a decision dated November 29,
2010, the Federal Court held that Mr. Tremaine was not in contempt of court
(2010 FC 1198, [2010] F.C.J. No. 1376). The Judge reasoned that Mr. Tremaine
could not be held in contempt for the breach of an order of the Federal Court
because the Commission had neglected to notify Mr. Tremaine that it had
registered the Tribunal’s order with the Federal Court. Thus, according to the
Judge, Mr. Tremaine could not be held in contempt of court for anything done
prior to March 2009, because while he had knowledge of the Tribunal’s order,
the Tribunal’s order alone could not give rise to a finding of contempt.
[10]
On appeal, our Court reversed this decision. The
majority held that knowledge of the Tribunal order, in itself, was sufficient
to give rise to a finding of contempt. It thus found Mr. Tremaine in contempt
and remitted the matter back to the Judge for sentencing (2011 FCA 297,
[2013] 3 F.C.R. 109, leave to appeal to S.C.C. refused, 34542 (April 26, 2012)).
III.
Federal Court Decisions
A.
2012 Sentencing Order
[11]
On November 7, 2012, the Judge issued an order
sentencing Mr. Tremaine for being in contempt. The Judge explained that the
materials that formed the basis of the show cause order and the finding of
contempt were still on the Internet at the time of the date of the sentencing
hearing on October 9 and 10, 2012. These materials were found on
Stormfront.org, an American website over which Mr. Tremaine does not have
control, and the National Socialist Party of Canada website, for which Mr.
Tremaine is the webmaster.
[12]
The Judge rejected Mr. Tremaine’s attempts to
explain why the material had remained online, as he found these explanations to
be without merit. He also noted that on the morning of the sentencing hearing,
Mr. Tremaine had attempted to sell his website to a potential expert witness
called by him to advise the Court with respect to voice transmissions over the
Internet (Reasons at paragraphs 10, 19). The Judge found it “obvious that Mr. Tremaine was attempting to put his website
out of [the Federal] Court’s reach” (ibidem at paragraph 20). The Judge held that Mr. Tremaine had “clearly intended to flout the law, to demean the Tribunal and
this Court, and has not apologized” (ibidem at paragraph 30).
Thus the Judge proceeded to set out Mr. Tremaine’s penalty for being in
contempt.
[13]
Rule 472 of the Federal Court Rules reads:
|
472. Where a person is found to be in contempt, a judge may order that
|
472. Lorsqu’une personne est reconnue coupable
d’outrage au tribunal, le juge peut ordonner:
|
|
(a) the
person be imprisoned for a period of less than
five years or until the person complies with the order;
|
a) qu’elle soit incarcérée pour une période
de moins de cinq ans ou jusqu’à ce qu’elle se conforme à l’ordonnance;
|
|
(b) the
person be imprisoned for a period of less than
five years if the person fails to comply with the order;
|
b) qu’elle soit incarcérée pour une période
de moins de cinq ans si elle ne se conforme pas à l’ordonnance;
|
|
(c) the
person pay a fine;
|
c) qu’elle paie une amende;
|
|
(d) the
person do or refrain from doing any act;
|
d) qu’elle accomplisse un acte ou s’abstienne
de l’accomplir;
|
|
(e) in
respect of a person referred to in rule 429, the person’s property be
sequestered; and
|
e) que les biens de la personne soient mis
sous séquestre, dans le cas visé à la règle 429;
|
|
(f) the
person pay costs.
|
f) qu’elle soit condamnée aux dépens.
|
[14]
The Judge ordered that Mr. Tremaine or his
counsel approach Stormfront.org to request that “his
postings thereon, as identified by the Tribunal in its decision, as well as
those exhibited to the affidavits of Mr. Warman dated February 12, 2009 and
March 19, 2010 be removed, as well as his posting of 22 July 2009 at 11:20 pm …
a vicious untrue diatribe about [the Federal Court Judge who had denied the
2008 application for judicial review]” (ibidem at paragraph 32). He also ordered that “the
material identified by the Tribunal and in Mr. Warman’s affidavit, which are to
be found on the National Socialist Party of Canada website be removed” (ibidem at paragraph 33) and that Mr.
Tremaine “shall provide evidence that he has complied
with this order within 15 days of service upon him” (ibidem at paragraph 34).
[15]
The Judge sentenced Mr. Tremaine to 30 days
imprisonment beginning 15 days after the Commission serves the order upon him,
but also imposed a conditional sentence of imprisonment, if he does not obey
the order, of “six months, or until he complies with the
order, whichever is less” (ibidem at paragraph 36).
[16]
The Judge also ordered Mr. Tremaine or any
individuals acting in concert with him, to cease communicating material of the
type, or substantially similar material as that found by the Tribunal to
contravene section 13(1) of the Act (ibidem at paragraph 37).
[17]
Mr. Tremaine subsequently appealed this decision
to our Court in November 2012. In case the Judge issued a warrant of committal
within the period provided for in his Reasons, Mr. Tremaine also obtained a
stay from our Court preventing the execution of such warrant pending the final
disposition of the appeal (appeal book at pages 365-367).
B.
2013 Warrant of Committal Order
[18]
On February 22, 2013, the Judge issued a further
order stating that should Mr. Tremaine’s appeal be dismissed by our Court, the
Federal Court will issue a warrant of committal in the form appended to his
reasons, ordering police officers in Saskatchewan to arrest Mr. Tremaine and
deliver him to a provincial correctional institution where he would be detained
for 30 days. This order also indicated that Mr. Tremaine had “provided evidence that he had complied with the said order so
that the only part thereof still operative is his imprisonment for a period of
thirty (30) days, subject to the outcome of his appeal before the Federal Court
of Appeal” (ibidem at page 389; see also the letter of counsel
for Mr. Tremaine to the Federal Court at pages 370-371).
IV.
Analysis
A.
Principles of Sentencing and Standard of Review
[19]
In cases of civil contempt the usual principles
of sentencing developed in relation to criminal contempt apply (Canada (Canadian Human Rights Commission) v. Canadian Liberty Net, [1996] 1 F.C. 787,
[1996] F.C.J. No. 100 at page 801 (C.A.) [Liberty Net]; 9038-3746
Quebec Inc. v. Microsoft Corporation, 2010 FCA 151, [2010] F.C.J. No. 758
at paragraph 5). Thus our Court may consider both criminal and civil law
jurisprudence in determining the appropriate standard of appellate review and
the factors that the Judge ought to have considered in sentencing Mr. Tremaine.
[20]
Criminal law jurisprudence demonstrates that our
Court owes considerable deference to the trial judge given the highly
contextual nature of sentencing. In R. v. M. (C.A.), [1996] 1 S.C.R. 500,
[1996] S.C.J. No. 28, the Supreme Court of Canada clarified that “absent an error in principle, failure to consider a relevant
factor, or an overemphasis of the appropriate factors, a court of appeal should
only intervene to vary a sentence imposed at trial if the sentence is
demonstrably unfit” (at paragraph 90). An appellate court therefore may
not intervene simply because it would have ordered a different sentence, but
rather may vary the sentence if it is convinced that it is “demonstrably unfit” or “clearly
unreasonable” (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at
paragraphs 14-15; R. v. Shropshire, [1995] 4 S.C.R. 227, [1995] S.C.J. No.
52 at paragraph 46).
[21]
In order to determine what is a “fit” sentence
in a particular case, the sentencing judge must consider the range of sentences
for similar offences set out in prior jurisprudence and adjust the sentence
depending on the objectives of sentencing and any aggravating and mitigating
factors applicable to the case at hand (R. v. Nasogaluak, 2010 SCC 6,
[2010] 1 S.C.R. 206 at paragraph 43; Professional
Institute of the Public Service of Canada v. Bremsak, 2013 FCA 214, [2013]
F.C.J. No. 1009 at paragraph 33 [Bremsak]).
[22]
Courts also ought to consider the importance of
specific and general deterrence for preserving public confidence in the
administration of justice, while maintaining proportionality in sentencing (Canada (Minister of National Revenue) v. Marshall, 2006 FC 788, [2006] F.C.J. No. 1008
at paragraph 16 [Marshall]).
[23]
Case law sets out a range of aggravating and
mitigating factors that a judge may consider in imposing a fine and/or prison
sentence for contempt. For instance, courts are instructed to consider the
gravity of the contempt in the context of the case at hand, with regard to the
administration of justice (see Baxter Travenol Laboratories of Canada, Ltd.
v. Cutter Canada, Ltd., [1987] 2 F.C. 557, [1987] F.C.J. No. 205 at page
562 (C.A.) [Baxter]; Winnicki v. Canada (Human Rights Commission),
2007 FCA 52, [2007] F.C.J. No. 56 at paragraph 17 [Winnicki], citing
with approval Lyons Partnership, L.P. v. MacGregor, 186 F.T.R. 241,
[2000] F.C.J. No. 341). This includes both “the
objective gravity of the contemptuous conduct [and] the subjective gravity of
the conduct (i.e. whether the conduct was a technical breach or a
flagrant act with full knowledge of its unlawfulness)” (see Marshall at paragraph 16; Bremsak at
paragraph 35). Some jurisprudence has referred to the gravity of the offence as
an “aggravating factor” (see e.g. Marshall at paragraph 16). However, in other cases courts have simply noted that the
gravity of the offence must be considered, thus suggesting that if the gravity
is on the lower end of the scale, this may also serve as a neutral or
mitigating factor (see e.g. Baxter at page 562; Canada
(National Revenue) v. Ryder, 2014 FC 519, [2014] F.C.J. No 561 at paragraph
8).
[24]
Other mitigating factors to consider are whether this is a first offence (e.g. Canada (Attorney General) v. De
L’Isle, [1994] F.C.J. No. 955, 56 C.P.R. (3d) 371
(C.A) at paragraph 10; Winnicki at paragraph 17)
and whether the offender has apologized, accepted responsibility or made good
faith attempts to comply (Bremsak at paragraph 35, citing with approval Marshall
at paragraph 16).
[25]
On the other hand, where the offender has
repeatedly breached court orders or has refused to apologize or take steps to
comply with the order, these may be considered aggravating factors (ibidem
at paragraph 16).
[26]
While these enumerated
factors provide helpful guidance with regard to sentencing, they are not
exhaustive. Rather, a judge has wide discretion to determine the appropriate
sanction for civil contempt, based on the facts of the case before him (Bremsak
at paragraph 36).
B.
Whether the Sentence is Unfit
[27]
The appellant argues that the Judge failed to
adequately consider the aforementioned principles of sentencing, and, more
specifically, ignored several mitigating factors in determining Mr. Tremaine’s
sentence. Thus, according to the appellant, the Judge imposed a sentence that
is “manifestly harsh, excessive, and demonstrably unfit” in
sentencing Mr. Tremaine to 30 days imprisonment and in requiring him to remove
certain widely available materials or excerpts from books from the Internet.
[28]
I agree with the appellant that the Judge could
have provided a more thorough discussion of the principles of sentencing he
applied when rendering the sentencing order. Although the Judge noted that Mr.
Tremaine “clearly intended to flout the law, to demean
the Tribunal and this Court, and has not apologized” (Reasons at
paragraph 30) and that Mr. Tremaine “has done nothing to
purge his contempt following the Court of Appeal’s decision” (ibidem
at paragraph 16), the Judge otherwise provided little explanation for the sentence
he ordered. He did not point to jurisprudence that establishes the range of
sentences for similar offences. In addition, the terms “aggravating and
mitigating factors” are completely absent from the sentencing order.
[29]
However, after carefully considering the file
before me in light of the aforementioned sentencing principles, I am unable to
conclude that the 30-day sentence is unfit.
[30]
Where Courts have been faced with similar
factual scenarios to the case at hand, they have imposed a range of prison
sentences for the parties found in contempt. For instance, in Canada (Canadian
Human Rights Commission) v. Taylor, [1987] 3 F.C. 593, [1987] F.C.J. No. 347,
(C.A.) aff’d [1990] 3 S.C.R. 892, [1990] S.C.J. No. 129 [Taylor (SCC)]
an appeal was taken from a judgment of the Federal Court which found John Ross
Taylor and The Western Guard Party in contempt of court and committed Mr.
Taylor to prison for a term of one year;
[31]
The Tribunal had ordered Mr. Taylor to cease and
desist his practice of communicating anti-semitic messages over the telephone,
as this was found to violate sections 3 and 13(1) of the Canadian Human
Rights Act, S.C. 1976-1977, c. 33. Following various proceedings, Mr.
Taylor served his sentence, with remission, between October 1981 and March
1982.
[32]
In Liberty Net, Canadian Liberty Net and
Mr. Tony McAleer failed to abide by an injunction order of the Federal Court to
cease operating their “telephonic hate message system.” The
Federal Court found them in contempt of court and sentenced Mr. McAleer to two
months in prison as well as a $2,500 fine, and sentenced Canadian Liberty Net
to a $5,000 fine. On appeal, our Court reduced Mr. McAleer’s prison sentence to
the two days already served, as it found that the interim injunction was
invalid and thus this served as a strong mitigating factor that had not been considered
by the Federal Court. Our Court also noted that the violation itself ceased
very shortly after the contempt action was initiated. Importantly for our
purposes, however, the Court noted that had the injunction been valid, the
prison sentence of two months might have been appropriate (at paragraph 31).
[33]
In turn, in Canada (Human Rights
Commission) v. Heritage Front, [1994] F.C.J. No. 2010, 26 C.H.R.R.
D/315 (F.C.T.D.) [Heritage Front], Mr. Wolfgang Droege, Mr. Gary
Schipper and Mr. Kenneth Barker were found in contempt of court for breaching
an injunction order to cease operating their “Equal Rights for Whites Hotline.”
In her sentencing reasons for order dated June 22, 1994, the Judge sentenced
Mr. Droege to a period of 3 months imprisonment, Mr. Schipper to 2 months
imprisonment, and Mr. Barker to 1 month, justifying these differences primarily
on the basis of their involvement in Heritage Front. The Judge also noted that
she considered as a mitigating factor that this was the first finding of
contempt for all three respondents. She also gave consideration to the need for
deterrence and to the fact that the parties had not demonstrated remorse (at
paragraphs 7-9).
[34]
Finally, in Winnicki the Federal Court
had granted an interlocutory injunction which prohibited Mr. Winnicki from
communicating through the Internet “messages that are
likely to expose persons to hatred or contempt by reason of race, national or
ethnic origin, colour or religion contrary to subsection 13(1) of the Canadian
Human Rights Act” (Winnicki at paragraph 5). Mr. Winnicki
continued to publish messages, was found in contempt of court and was sentenced
to nine months imprisonment and ordered to pay the Human Rights Commission’s
costs. On appeal, our Court reduced the sentence to the 83 days already served
in jail; it found that because the appellant had failed to make submissions as
to his sentence, the Judge, in turn, had failed to appreciate that the
appellant was a first offender.
[35]
Mr. Tremaine argues that the Judge erred in
failing to consider and apply the principle of restraint – i.e. that “a sentencing court must consider all other sanctions that may
be appropriate before considering imprisonment, especially in cases involving citizens
with no prior criminal record” (appellant’s memorandum of fact and law
at paragraph 32) and that “if imprisonment must be
imposed for an offence, the shortest amount of time possible in the
circumstances should be given” (ibidem at paragraph 33). He maintains that the Judge overemphasized the
need for deterrence and did not adequately consider that Mr. Tremaine is a
first offender. He also suggests that the Judge imposed a sentence more
appropriate for criminal contempt than for civil contempt and failed to
consider the parity principle – i.e. whether the sentence is “consistent with sentences imposed on similar offenders in
similar situations” (ibidem at paragraph 45).
[36]
However, Winnicki and Heritage Front,
demonstrate that a short prison sentence of 1 to 3 months may nonetheless be
deemed appropriate for a first offender in very similar circumstances as the
case at hand. This suggests that Mr. Tremaine’s sentence of 30 days
imprisonment is reasonable, even in light of the principle of restraint and the
fact that this is Mr. Tremaine’s first contempt offence. In turn, Liberty
Net shows that a longer prison sentence might be deemed appropriate even in
circumstances, unlike the case at hand, where the contemptuous conduct ceased
shortly after the contempt action was initiated. This jurisprudence thus
demonstrates that not only is Mr. Tremaine’s one-month prison sentence “fit”
but it is also at the lower end of the spectrum of sentences imposed in similar
cases.
[37]
The appellant also argues that the Judge neglected
to consider other relevant mitigating factors. Mr. Tremaine asserts that the
Judge ought to have considered that he has already served 22 days in prison for
a similar offence and that he was fired from his job and suffered from
depression. The appellant also notes that in issuing his sentencing order, the
Judge ought to have thought about the value of freedom of expression as set out
in section 2(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 [Charter] and reduced Mr. Tremaine’s sentence
because Parliament recently repealed section 13 of the Act. I am of the
opinion, however, that none of these factors serve to mitigate Mr. Tremaine’s
sentence.
[38]
With regard to the 22-day prison sentence, the
time served was for a breach of bail conditions in relation to criminal charges
pursuant to section 319 of the Criminal Code, R.S.C. 1985, c. C-46 for
postings that were either the same or similar to the messages that form the
basis of the contempt order in this case (Transcripts of the November 9, 2010
hearing, volume 2 at page 461). However, in the present case we are dealing
with a sentence imposed in relation to a contempt order – not criminal charges.
I therefore see no reason why Mr. Tremaine’s prior time served in Saskatchewan ought to reduce the sentence imposed in this case. In fact, to do so would be
inconsistent with recognizing Mr. Tremaine as a first offender with regard to
the contempt charges. Mr. Tremaine cannot argue that he is a first offender and
that he has already served a sentence for the same offence.
[39]
I also find that Mr. Tremaine’s loss of
employment and subsequent depression in no way excuse his decision to continue
communicating discriminatory messages after being enjoined by the Tribunal to
stop. Mr. Tremaine elected to communicate hateful messages and his employer
decided to fire him on account of this voluntary behaviour.
[40]
Parliament’s decision to repeal section 13 of
the Act also does not justify Mr. Tremaine’s decision not to remove his
Internet postings. Section 13 was valid law at the time that the Tribunal
issued its cease and desist order and Mr. Tremaine was found in contempt of
court. The fact that this provision is no longer in force does not lessen the
fact that Mr. Tremaine deliberately disobeyed a valid order and, as a result,
was found in contempt.
[41]
The fact that the Charter serves to
protect freedom of expression does not serve as a mitigating factor in this
case nor does it indicate that Mr. Tremaine’s sentence is not proportional to
the offence committed. The Supreme Court of Canada had previously held that
section 13(1) of the Act was constitutional; although it infringed the right to
freedom of expression under section 2(b) of the Charter, it was
nonetheless saved under section 1 (Taylor (SCC)).
[42]
In addition, upon judicial review of the
Tribunal’s decision, a Federal Court Judge determined that although Mr.
Tremaine had attempted to argue that section 13(1) of the Act could not “constitutionally
apply to Internet postings,” he had “not presented a
foundation upon which the Charter challenge can be argued and determined by
this Court” (2008 FC 1032 at paragraphs 25-26). The Judge who heard the
judicial review noted that Mr. Tremaine had neither served a Notice of Constitutional
Question nor advanced this argument before the Tribunal.
[43]
In my view, it was therefore not for the Judge,
at the time of sentencing, to consider the balance between freedom of
expression and the restrictions imposed by section 13; this issue was
appropriately considered upon judicial review of the Tribunal’s decision.
Moreover, contempt of court is considered a grave offence, regardless of
whether the law that is being disobeyed potentially curtails freedom of expression.
Mr. Tremaine was required to obey the Tribunal’s order.
[44]
Upon further examination of the mitigating and
aggravating factors applicable to Mr. Tremaine’s case, I am satisfied that the
sentence of one-month imprisonment is “fit” in the circumstances. As the Judge
noted, Mr. Tremaine showed no remorse and made no sincere apology. Mr.
Tremaine’s “flagrant disregard” for the Federal Court’s order demonstrates the
substantial subjective gravity of the offence, while the objective gravity of
the offence of contempt and Mr. Tremaine’s disregard for the rule of law
highlight the need for the sentence to be sufficiently severe to deter his
conduct. The sentence should also convey a strong message to the public in
general that courts will enforce their orders and not tolerate intentional acts
which bring the administration of justice into disrepute.
[45]
Mr. Tremaine also suggests that the Judge erred
in not considering that some of the work he sought to disseminate are books
that are widely available on the Internet, in libraries or sold online. He thus
requests that these works be severed from the order:
1.
Exhibit H – Posting by Mathdoktor99 on 30 August
2007 (posting no 9) in the thread entitled “Adolf Hitler – The Jews, from Mein
Kampf I, XI” [http://www.stormfront.org/forum/t415937/#post4549201]
2.
Exhibit M – Posting by Mathdoktor99 on 8 October
2007 (posting no 1) in the thread entitled “The Great Red Dragon (pdf
download)” [http://www.stormfront.org/forum/t427421/#post4684739]
3.
Exhibit AA – Protocols of the Elders of Zion
[http://nspcanada.nfshost.com/index.php?page_id=74]
[http://nspcanada.nfshost.com/PDFs/ProtocolsZion.pdf]
4. Exhibit BB – George Lincoln Rockwell, White Power [http://nspcanada.nfshost.com/index.php?page_id=74]
[http://nspcanada.nfshost.com/PDFs/WhitePower.pdf]
- Exhibit CC – Ernst Hiemer, The Poisonous
Mushroom [http://nspcanada.nfshost.com/index.php?page_id=74]
[http://nspcanada.nfshost.com/PDFs/PoisonousMushroom.pdf]
6.
Exhibit DD – The Turner Diaries [http://nspcanada.nfshost.com/index.php?page_id=73]
[46]
I am not persuaded that the Judge did not
consider this matter or that he committed an error. A careful reading of the
transcripts of the hearing in front of the Federal Court shows that the parties
made submissions on this point. Taking support from a previous decision of the
Tribunal in the matter of Citron v. Zundel, [2002] C.H.R.D. No. 1 [Zundel]
Mr. Warman argued that Mr. Tremaine’s personal views and the external material
posted on Stormfront.org and the National Socialist Party of Canada website had
to be read as a whole. Their combined effect was to expose particular groups to
hatred and contempt. Quoting from paragraph 142 of Zundel, Mr. Warman
stated that the information posted by Mr. Tremaine should not be parsed out: “The echoes of hatred that reverberate throughout the site
infect and taint virtually all of the documents put before us” (transcripts
originally filed in A-468-10, volume 3 at pages 666-667).
[47]
For his part, counsel for Mr. Tremaine argued
that his client should not be ordered to remove “that
which is not prohibited”, referring in particular to The Turner
Diaries and The Protocols of Zion (appeal book at page 297).
[48]
The Judge heard ample evidence regarding Mr.
Tremaine’s various Internet postings and their contents. Reading the impugned
order, I simply conclude that the Judge exercised his discretion and accepted
Mr. Warman’s submissions on this point. Thus, I see no reason for our Court to
intervene.
[49]
Finally, in case the sentence were to be upheld,
counsel for Mr. Tremaine informed the panel of his client’s health issues and
invited the Court to make specific recommendations to the provincial
correctional services of Saskatchewan. We must decline this invitation. The
Corrections and Policing Division under the Ministry of Justice of Saskatchewan is not within the province of this Court.
V.
Proposed Disposition
[50]
Consequently, I propose to dismiss the appeal
without costs.
[51]
As the appeal is now resolved, the stay ordered
by this Court on November 28, 2012 temporarily suspending the execution of the
Federal Court’s committal order of February 22, 2013 in file T-293-07 is
automatically lifted. The committal order is a matter for the Federal Court.
“Johanne Trudel”
“I agree
Eleanor R. Dawson J.A.”
“I agree
Wyman W. Webb J.A.”
Email this Content