Date: 20060712
Docket: T-1309-05
Citation: 2006 FC 873
OTTAWA, ONTARIO, July 12, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Applicant
and
TOMASZ WINNICKI
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for an order of contempt. Richard Warman ("RW") filed a complaint on September 7, 2003 with the Canadian Human Rights Commission ("CHRC") alleging that Mr. Tomasz Winnicki ("TW") was discriminating on the basis of religion by communicating messages on the internet that would likely expose persons of the Jewish faith to hatred and/or contempt contrary to section 13(1) of the Canadian Human Rights Act, R.S.C. 1985, C. H-6, c. H-6 [the "Act"].
[2] The complaints were heard by the Canadian Human Rights Tribunal ("CHRT") on August 8 to 9, 2005 and December 12, 2005 and a decision was rendered on April 13, 2006 (Warman v. Winnicki, 2006 CHRT 20).
[3] Justice de Montigny, of the Federal Court, granted an interlocutory injunction pending the Tribunal's final decision on October 4, 2005. The injunction stated that TW was
restrained from 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 contrary to subsection 13(1) of the Canadian Human Rights Act.
[4] The Applicant alleges that TW continued to publish messages on the internet in contravention of Justice de Montigny's order and brought a motion for contempt of Court under Rule 367 of the Federal Courts Rules, SOR/98-106 (the "Rules").
[5] Justice Gauthier on April 21, 2006 found that there was sufficient evidence before her to satisfy the first stage of a contempt application and that the second part of the contempt proceedings could proceed. By order of June 5, 2006, with the consent of both parties, I adjourned the hearing to June 29, 2006 so that TW, who until that point had represented himself, could attempt to obtain legal aid and find counsel.
[6] On June 29, 2004, the date of the contempt hearing, TW appeared in the company of Mr. Dominic Lamb whom TW had just retained as counsel. At the request of Mr. Lamb, and over the objection of the CHRC, I adjourned the matter until July 4, 2006 to give Mr. Lamb a chance to acquaint himself with the file. The hearing then proceeded on July 4, 2006 as scheduled.
Issue
[7] Is TW in contempt of the order of Justice de Montigny during the period October 4, 2005 (the date of the order) to April 13, 2006 (the date of the decision of the CHRT)?
THE LAW OF CONTEMPT
[8] An excellent summary of the relevant concepts of the law of contempt is given by Justice Teitelbaum in Tele-Direct (Publications) Inc. v. Canadian Business Online Inc. (1998), 151 F.T.R. 271 at paragraph 20:
I can do no better than to quote from the plaintiff's Memorandum on the state of what the jurisprudence is when dealing with the issue of contempt.
ONUS
69. The party alleging contravention of an order of the court has the burden of proving that the order has been defied. Contempt of court proceedings being quasi-criminal in nature, the defendant need not present any evidence to the court.
[...]
BURDEN OF PROOF
71. An allegation of contempt of court is a matter of criminal (or at least quasi-criminal) dimension. This is to say that the Plaintiff must prove the constituent elements of contempt beyond a reasonable doubt.
KNOWLEDGE
72. Knowledge of the existence of an injunction is sufficient to obligate persons to obey it.
73. Despite the fact that contempt of court proceedings are analogous to criminal proceedings, the proof of mens rea is not a required element to be present for the finding of contempt. The intent to contravene an order of the court is not essential; if the contemnor has knowledge of the injunctive order, it is sufficient to find him liable for disobeying the injunction, whether or not he intended to defy the order.
[...]
BREACH OF INJUNCTION
79. Anyone who disobeys any process or order of the Court or a judge thereof is guilty of contempt of court.
80. There is breach of an order, such as an injunction when the party to whom it is addressed disobeys the order.
[...]
OBSTRUCTION OF JUSTICE
[...]
89. The fundamental purpose of the court's contempt powers is to ensure the smooth functioning of the judicial process. Therefore even if technically there is no breach of an injunction because a person is not personally bound by the order, there can still be contempt if a person who has knowledge of an injunction acts in a way that tends to obstruct the course of justice by contravening the terms of the order. This is also so when a person aids and abets others in setting the Court at defiance and deliberately treats the order of the court as unworthy of notice.
[Citations removed]
Analysis
[9] Sections466 and 467 of the Rules provide:
| 466. Subject to rule 467, a person is guilty of contempt of Court who:
(a) at a hearing fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding;
(b) disobeys a process or order of the Court;
(c) acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court;
(d) is an officer of the Court and fails to perform his or her duty; or
(e) is a sheriff or bailiff and does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes a rule the contravention of which renders the sheriff or bailiff liable to a penalty.
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466. Sous réserve de la règle 467, est coupable d'outrage au tribunal quiconque:
(a) étant présent à une audience de la Cour, ne se comporte pas avec respect, ne garde pas le silence ou manifeste son approbation ou sa désapprobation du déroulement de l'instance;
(b) désobéit à un moyen de contrainte ou à une ordonnance de la Cour;
(c) agit de façon à entraver la bonne administration de la justice ou à porter atteinte à l'autorité ou à la dignité de la Cour;
(d) étant un fonctionnaire de la Cour, n'accomplit pas ses fonctions;
(e) étant un shérif ou un huissier, n'exécute pas immédiatement un bref ou ne dresse pas le procès-verbal d'exécution, ou enfreint une règle dont la violation le rend passible d'une peine.
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| 467. (1) Subject to rule 468, before a person may be found in contempt of Court, the person alleged to be in contempt shall be served with an order, made on the motion of a person who has an interest in the proceeding or at the Court's own initiative, requiring the person alleged to be in contempt:
(a) to appear before a judge at a time and place stipulated in the order;
(b) to be prepared to hear proof of the act with which the person is charged, which shall be described in the order with sufficient particularity to enable the person to know the nature of the case against the person; and
(c) to be prepared to present any defence that the person may have.
(2) A motion for an order under subsection (1) may be made ex parte.
(3) An order may be made under subsection (1) if the Court is satisfied that there is a prima facie case that contempt has been committed.
(4) An order under subsection (1) shall be personally served, together with any supporting documents, unless otherwise ordered by the Court.
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467. (1) Sous réserve de la règle 468, avant qu'une personne puisse être reconnue coupable d'outrage au tribunal, une ordonnance, rendue sur requête d'une personne ayant un intérêt dans l'instance ou sur l'initiative de la Cour, doit lui être signifiée. Cette ordonnance lui enjoint:
(a) de comparaître devant un juge aux date, heure et lieu précisés;
(b) d'être prête à entendre la preuve de l'acte qui lui est reproché, dont une description suffisamment détaillée est donnée pour lui permettre de connaître la nature des accusations portées contre elle;
(c) d'être prête à présenter une défense.
(2) Une requête peut être présentée ex parte pour obtenir l'ordonnance visée au paragraphe (1).
(3) La Cour peut rendre l'ordonnance visée au paragraphe (1) si elle est d'avis qu'il existe une preuve prima facie de l'outrage reproché.
(4) Sauf ordonnance contraire de la Cour, l'ordonnance visée au paragraphe (1) et les documents à l'appui sont signifiés à personne.
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[10] In a contempt case, the Court finds itself in the position of being, for all intents and purposes, both accuser and judge. The consequence of this was poignantly explained by Justice Marceau in Valmet Oy v. Beloit Canada Ltd (1988), 20 C.P.R. (3d) 1 at p. 17:
One has difficulty finding a case involving the law of contempt where the court has not taken great care to insist upon the basic principle that the matter is one which must be considered and dealt with according to strict law (strictissimi juris). It is of course true that a contempt of court is an offence of a criminal character punishable by way of committal and/or sequestration. But it is, also, I think, that the courts have always felt the need to reaffirm constantly, and thus buttress, as much as possible, their complete objectivity in situations where they are, at one and the same time, the makers of the law, the triers of the accused and the punishers of the guilty. In any event, as I read the judgments, rules strict and severe have been developed in the past on the basis of that principle...
[11] Accordingly, in order for a person to be convicted of contempt, there has to be strict compliance with all the requirements.
[12] In this case, the order of Justice Gauthier in the relevant parts states:
2. The act with which Mr. Winnicki is charged is that he, by his conduct particularized below, disobeyed an order of this Court so as to be guilty of contempt of Court.
a) By Order dated October 4, 2005, the Honourable Mr. Justice de Montigny ordered that:
"the interlocutory injunction is granted, pending a final decision by the Canadian Human Rights Tribunal in proceedings before it. As a result, the Respondent, Tomasz Winnicki, is restrained from 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, contrary to subsection 13(1) of the Canadian Human Rights Act."
b) Mr. Winnicki did not comply with the order of Mr. Justice de Montigny dated October 4, 2005 in that he continued to communicate, by means of the Internet, messages that are likely to expose persons to hatred or contempt by reason of race, national or ethnic origin or religion, contrary to subsection 13(1) of the Canadian Human Rights Act. Examples of such messages are found in the Affidavit of Mr. Warman dated M arch 14, 2006 at paragraphs 7 and 8;
[13] To succeed in this motion, the Applicant has to prove both knowledge of the order on the part of the Respondent and breach of the order.
Knowledge
[14] Until this trial the Applicant was self-represented. He thus was before Justice Gauthier when the show cause hearing took place. In accordance with court practice and rules, TW was mailed a copy of Justice Gauthier's decision. Furthermore, he personally requested (and was granted) an adjournment from this Court to seek defence counsel. Finally, the order of Justice de Montigny was served on TW by process server Michael Collins on October 14, 2005 on Maria Winnicki, a member of the household of TW (see affidavit of service of Michael Collins A.R. Tab 3).
[15] Counsel for TW alleges that this is not enough. Service of the order has to be personal according to Rule 467(4) unless otherwise ordered by the court. As no such order was given in this case, and as the process server was not called as a witness, service has not been proven.
[16] I find this argument not to be tenable. TW was self-represented before Justice Gauthier during the show cause hearings. He was sent a copy of her order. He never raised before Justice Gauthier the fact that he had no knowledge of the order, which is a logical and complete defence (if accepted) to a show cause hearing. In addition, the various Internet postings, which I will refer to later, reveal his knowledge. In Tab F and V of the affidavit of RW (Exhibits A-2 and A-18 respectively), TW referred to the Federal Court injunction against him and in Tab K ( Exhibit A-7), TW refers to Justice de Montigny by name.
[17] The requirement in Rule 467(4) regarding personal service is to ensure that no person is held in contempt who is unaware of the charge against him. For the reasons stated above, in my view the Applicant has established beyond a reasonable doubt that TW knew about the order; he even acknowledged its existence himself. I therefore find that he had knowledge of the order and there was no need to present further evidence in order to comply with Rule 467(4).
Evidence regarding the breach of the order
[18] There was only one witness in this trial, Mr. Richard Warman, who testified that he laid the original complaint against TW. He has also been monitoring the Internet since the order of Justice de Montigny to ensure the order was honoured. Specifically, he monitored a website called Vanguard News Network (www.vnnforum.com) which is a sort of right wing, neo-Nazi chat room. Any member of the public can visit it and post items on it. The items can either be in relation to an existing story or one can commence a new topic. Each topic is called a thread and the postings are numbered consecutively. RW testified as to 31 postings that he had observed covering the period October 9, 2005 to March 6, 2006.
[19] Each of these messages is extremely derogatory of non-whites, Jews, immigrants and multiculturalism. They send a persistent vile message which in essences suggests:
a) there is a Zionist conspiracy;
b) that Jews dominate all levels of governments;
c) that those of the Black race are lazy, aids-infected, criminals and welfare cheats;
d) that all non-white immigrants fall into the same category; and
e) That multiculturalism is a policy conceived by Zionists (also called ZOG [Zionist Order of Government]) to perpetuate non-white immigration.
[20] Each posting clearly displays the following:
i) the name of Tomasz Winnicki of London, Ontario;
ii) the robot symbol which the CHRT decision of April 13, 2006 held to be characteristic of TW's messages; and
iii) TW's signature line 'COME WITH US, I SEE PASSION IN YOUR EYES';
[21] Lastly, RW testified that he has been personally harassed and threatened by neo-Nazis and that he now lives in hiding and does not dare to reveal his occupation or address for fear of harassment for his family and himself.
[22] The cross-examination of RW focused primarily on:
a) whether there was proof that Tomasz Winnicki appearing on the VNN website was the same as the Respondent;
b) whether there was any evidence to establish that TW had published the threads on the VNN website; and
c) whether there was any evidence that the postings on VNN website had not been altered or edited.
[23] RW's response was straightforward. TW had admitted before the CHRT, in the presence of RW that he was the Tomasz Winnicki that appeared on the VNN website. RW conceded that he was not a technician and he could not establish by electronic means whether the messages in question came from TW's computer in London, Ontario or elsewhere.
[24] He also advised that while he monitored the VNN website he had never seen any editing or alteration of messages. In my view, if messages were altered or edited, the posters would protest and his/her protestations would then show up on the website.
Respondent's Position
[25] Counsel for the Respondent alleges that breach of the order was not established as:
a) there is no proof that TW is the same persons as Tomasz Winnicki of the VNN website;
b) the evidence of admissions from the CHRT is inadmissible as being either hearsay and also cannot be admitted by reason of s. 13 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"];
c) someone else posing as TW could have posted the messages on the VNN website; and
d) even if TW posted the messages, they could have been altered or edited.
[26] In my view none of these arguments are sustainable. I will deal with each point in turn.
a) Proof that TW is the Tomasz Winnicki on the VNN website
[27] Throughout these proceedings, including those both before Justices de Montigny and Gauthier, TW never asserted that he was not the Tomasz Winnicki who posts messages on the VNN website. Surely if that was the case it would make a splendid defence and it is hard to fathom why it would never have been advanced.
[28] Exhibit A-2 is a posting on the VNN website by Tomasz Winnicki dated 29/10/2005 that states:
I have a federal court injunction prohibiting me from stating truth on the internet.
[29] Exhibit A-7 is a posting on the VNN website by Tomasz Winnicki dated 20/11/2005 that states:
"Messages targeting blacks "are undoubtedly as vile as one can imagine and are not only discriminatory, but threatening to the victims [OY VEY!!! THEY'RE VICTIMS!?!?!?!?!?] they target," de Montigny said."
Are those rampaging savages in France also considered to be victims? I don't know how they could possibly find my messages threatening (I'd love to have one of them explain it to me how they are) but I sure as hell feel our White Civilizations are deeply threatened by the likes of them. Maybe I'm overreacting, I mean, they're trying to behave a little better...they've burned down ONLY TWO schools last Sunday -
[30] Exhibit A-18 is another website posting by Tomasz Winnicki dated January 2nd, 2006 which states:
I would really love to throw some curses at certain minority groups responsible for this SHIT, but, because of the TOTALLY FUCKED UP Canadian Judicial system, I'm not allowed. The fucked up federal court has issued an injunction against me forbidding me from doing so.
[31] All three of these messages, in my view, leave no doubt that the poster Tomasz Winnicki on the VNN website is one and the same as TW against whom Justice de Montigny issued the restraining order.
b) the evidence of admission before the CHRT is inadmissible as hearsay or by reason of s. 13 of the Charter.
[32] Former counsel for TW made the following admissions before the CHRT:
MS MAILLET: ...Now, with respect to that question, respondent counsel had indicated that Mr. Winnicki does not deny communicating the messages or posting the messages which are the subject of this complaint, however, that question has not specifically been admitted.
I'd perhaps like to clarify with respondent counsel if they are, in fact, willing to concede that point and, if they are not, then I will proceed with my argument.
MS SHI: We do not dispute that my client posted those messages.
I guess perhaps I should clarify. As to whether that constitutes communicating and repeatedly communicating is the issue that the Tribunal will have to decide and has been disputed.
THE CHAIRPERSON: Okay. So, just to be clear then, the respondent does not dispute that he posted the material in question, but that there are still issues with respect to whether that was repeated communication?
MS SHI: Communication, repeated communication pursuant to section 13(1) of the Act, that is an issue of contention.
But factually did he post them? Yes, he did.
MS. MAILLET: And both as Tomasz Winnicki and as Thexder 3D.
MS SHI: Correct.
THE CHAIRPERSON: Thank you.
MS MAILLET: That shortens my submission, Madam Chair.
[33] The present counsel for TW made the submission that I should reject this evidence as hearsay. I allowed this evidence in as exhibit A-32 for the following reasons. RW was not only present at the hearing and heard the admissions, but he was also a party to the hearing. There is an official transcript of these admissions. They were referred to by member Jensen in her decision of April 13, 2006. RW testified about what counsel for the accused admitted before the CHRT. This admission affected RW personally, in his capacity as a co-complainant.
[34] In the judgment of CHRT, member Karen Jensen found:
[31] Through his counsel, the Respondent admitted that he communicated the messages which were included in the original complaints that were investigated by the Canadian Human Rights Commission and subsequently referred to the Tribunal. These messages included those found by the Complainant on the Northern Alliance website and on the Winnicki website, as well as some from the VNN Forum.
[32] It was unclear, however, whether the Respondent's admission that he communicated the impugned messages extended to the post-referral material. Therefore, I have reviewed this material and find, for the following reasons, that the Respondent was, in fact, the person who communicated the post-referral material that was filed as evidence during the hearing in this matter.
[33] In the messages that formed part of the original complaints, the Respondent alternated between the use of the pseudonym "Thexder 3D" and the name "Tom Winnicki". When the pseudonym was used, it was accompanied by a robot symbol.
[34] The communicator of the post-referral messages refers to himself as "Thexder 3D" and Tomasz Winnicki. In one such message Tomasz Winnicki corrected a misspelling of his pseudonym stated:
"It's Thexder" not "Thexter" but that's of little importance. Use my real name "Tomasz Winnicki from now on. "Tomasz" in Polish is the formal form for "Tom", so you can also address me as that."
[35] Thus, the evidence demonstrates that the Respondent, who went by the names Tom Winnicki and Tomasz Winnicki, and used the pseudonym "Thexder 3d" together with a robot symbol, was the person who communicated the post-referral material.
[35] Under these circumstances where proof of the admission is provided by a) the testimony of RW who was a party to the proceedings, b) the official transcript of the hearing and c) the member's reasons for the decision, I fail to see how it can be considered hearsay.
[36] Counsel for TW also suggested that I cannot use any of this evidence pointing to s. 13 of the Charter and R v. Noel, [2002] 3 S.C.R. 433.
[37] Section 13 of the Charter provides that:
| A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for giving contradictory evidence.
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Chacun a droit à ce qu'aucun témoignage incriminant qu'il donne ne soit utilisé pour l'incriminer dans d'autres procédures, sauf lors de poursuites pour parjure ou pour témoignages contradictoires.
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[38] It is not apparent how that section can be invoked under the circumstances of this case. Section 13 addresses the rights of a witness who provided testimony at a previous proceeding. TW did not testify before the CHRT. Justice Binnie, writing for the Court in R. v. Henry, [2005] 3 S.C.R. 609, provided a useful analysis of the law regarding s. 13 of the Charter. This case included an analysis of previous cases issued by the Supreme Court of Canada regarding s. 13 of the Charter including Noel, supra. Justice Binnie stated at paragraph 2:
The right against self-incrimination is of course one of the cornerstones of our criminal law. The right to stand silent before the accusations of the state has its historical roots in the general revulsion against the practices of the Star Chamber, and in modern times is intimately linked to our adversarial system of criminal justice and the presumption of innocence. Section 13 of the Charter gives [page616] constitutional protection to a more specific privilege against testimonial self-incrimination. In Dubois v. The Queen, [1985] 2 S.C.R. 350, the Court stated at p. 358 that:
the purpose of s. 13, when the section is viewed in the context of s. 11(c) and (d), is to protect individuals from being indirectly compelled to incriminate themselves, to ensure that the Crown will not be able to do indirectly that which s. 11(c) prohibits. [Emphasis added.]
[39] None of these considerations apply here. We are not dealing with testimony but rather admissions by counsel. The admissions were given during the closing arguments of opposing counsel for the purpose of saving time. Implicit in these admissions is that they were self-evident, and no time needed to be wasted on them. This is quite different to incriminating an accused on the basis of testimony given in other proceedings. Accordingly, neither s. 13 of the Charter or Noel, supra are applicable in this case.
c) Someone else could have posted as TW and d) in the alternative someone else could have altered TW's messages.
[40] Both of these defences were raised for the first time by counsel for TW during the contempt hearing. No evidence of any kind regarding these allegations was lead to that effect. This issue was never raised as a defence before the CHRT or during the show cause hearing before Justice Gauthier.
[41] On the other hand, there is plenty of circumstantial evidence that the messages came from TW namely:
a) the messages on the VVN website display:
i) the name of Tomasz Winnicki of London, Ontario;
ii) the robot symbol characteristic of TW's messages; and
iii) TW's signature line of 'COME WITH US, I SEE
PASSION IN YOUR EYES';
b) the messages reveal that the author is aware of the order of Justice de Montigny, (see exhibit A-2 referred to in paragraph 28); and
c) that the author tried to circumvent Justice de Montigny's order by commenting negatively on multiculturalism rather than the real object of his hatred and contempt. This is amply demonstrated by Exhibit A-18 which displays the following message:
SHE WAS WHITE!!!
Jane Creba, a pretty blue-eyed [I assume] blonde.
[...]
FUCK MULTICULTURALISM!!! FUCK YOU LIBERALS!!! MULTICULTURALISM IS SHIT!!! SHIT SHIT SHIT SHIT SHIT!!! I CAN'T STRESS IT ENOUGH...SHIT!!! DEATH TO ZOG
[...]
I would really love to throw some curses at certain minority groups responsible for this SHIT, but, because of the TOTALLY FUCKED UP Canadian judicial system, I'm not allowed. The fucked up federal Canadian court has issued an injunction against me forbidding me from doing so.
FUCK YOU CHRC!!! FUCK YOU CHRT!!! FUCK YOU FEDERAL COURTS!!! FUCK YOU SUPREME COURT OF CANADA!!! FUCK YOU JUDGES AND LAWYERS!!! FUCK ALL OF YOU, YOU GODDAMNED COMMIE HICKS!!!
COME WITH US, I SEE PASSIONS IN YOUR EYES.
[42] The mere allegation without any proof does not raise a reasonable doubt about TW's authorship of the messages in question. On the other hand, the circumstantial evidence above cited points conclusively to TW being the author of the messages in question.
Breach of the order
Do the messages posted by TW violate de Montigny's order i.e. are they 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 Act?
[43] In his reasons for issuing the restraining order, Justice de Montigny set out in paragraph 7 of his order the type of messages TW was posting. They are quite similar in style and content to the messages here at issue. He then observed at paragraph 41;
Having looked at these messages in their entirety and in context, I have no doubt that they are likely to expose persons of the Jewish faith to hatred or contempt, as these concepts have been defined in Nealy, supra, and approved in Taylor, supra. And the same can be said of the messages which target persons of the black race. They are undoubtedly as vile as one can imagine and are not only discriminatory but threatening to the victims they target. An underlying theme of Mr. Winnicki's messages is that blacks and other non-whites are destroying the country and that they should be segregated. They are a threat to our civilization and are not welcome in a white society. They are animals, criminals, and subhuman. They are also intellectually inferior and dangerous.
[44] The CHRT made a careful examination of the messages that were the subject of RW's original complaint and made the following finding at paragraph 101:
I find that the messages in the Northern Alliance Guestbook, the Winnicki website and the VNN website and forum are likely to expose people of the Jewish faith, Black race and other non-Caucasian races, and persons of African origin to hatred and contempt. I base this conclusion on the following findings: the messages portray members of the target groups as sub-human filth that are worthy of nothing but the highest degree of contempt and hatred; they convey the idea that members of the targeted groups are dangerous, evil and a menace to White Canadians; they express virulent hatred toward members of the targeted groups in abusive and threatening terms; they exhort others to adopt the same position as the Respondent; and, they seek to justify, motivate and legitimize violent action against members of the targeted groups. The result is that the targeted groups are highly vulnerable to hatred, contempt and even violence as a result of the messages.
[45] I have appended as Annex A hereto a side-by-side comparison of five messages that the CHRT found to be in violation of s. 13 of the Act and six messages introduced in evidence before me.
[46] It is evident that both the form and substance of the messages are the same. They have the same vile content and the unrelenting message of hatred for Jews and contempt for people of the Black race and/or immigrants. The obvious subterfuge to talk about 'multiculturalism' instead of 'Jews' or 'J(emoticon)(emoticon)Z' or 'ZOG' instead of 'Jews' does not deceive anyone.
[47] As such, they violate Justice de Montigny's order in that they "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". Accordingly, I find that it has been established beyond a reasonable doubt that TW posted all the messages in question and that, at the very least, the six messages, referred to in Annex A, breach the order of Justice de Montigny.
Penalty
[48] I find TW to be in contempt of Justice de Montigny's order dated October 4, 2005. In order to determine the appropriate penalty, one must look at the relevant factors. As discussed by Justice Lemiuex in LyonsPartnership, L.P. v. MacGregor (2000), 186 F.T.R. 241, the factors which one must access are:
1. the gravity of the contempt in the context of the particular circumstances of the case as they pertain to the administration of justice;
2. whether the contempt offence is the first offence;
3. presence of any mitigating factors such as good faith or an apology; and
4. deterrence of similar conduct.
[49] In this case, TW has continuously posted material in violation of Justice de Montigny's order. Furthermore, he has posted material that is entirely disrespectful of the Canadian judicial system let alone the Federal Court. The material is wilful, contemptuous, repetitious, and contumacious and shows a total lack of respect for the Court. He has shown no remorse for his contempt. Given this, I find that his behaviour justifies a term of imprisonment of nine months.
[50] In addition, based on Mayflower Transit, Inc. v. Bedwell Management Systems Inc. (2003), 27 C.P.R. (4th) 429, I award the Applicant costs on a solicitor and client basis.
JUDGMENT
1. I find Tomasz Winnicki guilty as charged in paragraph 2 b) of the Order of Justice Gauthier dated April 21, 2006, which stated:
Mr. Winnicki did not comply with the order of Mr. Justice de Montigny dated October 4, 2005 in that he continued to communicate, by means of the Internet, messages that are likely to expose persons to hatred or contempt by reason of race, national or ethnic origin or religion, contrary to subsection 13(1) of the Canadian Human Rights Act. Examples of such messages are found in the Affidavit of Mr. Warman dated March 14, 2006 at paragraphs 7 and 8;
2. As an appropriate penalty for this contempt of court, this Court orders that Tomasz Winnicki be sentenced to a nine month term of imprisonment.
3. This court further orders that Tomasz Winnicki pay the Applicant its costs on a solicitor and client basis.
"Konrad W. von Finckenstein"
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