Date: 20060928
Docket: A-334-06
Citation: 2006 FCA 314
BETWEEN:
Tomasz Winnicki
Appellant
and
Canadian Human Rights
Commission
Respondent
REASONS FOR ORDER
MALONE J.A.
[1]
Tomasz
Winnicki (TW) is thirty years old and has lived with his parents in London, Ontario for the past five years. He
has no criminal record.
[2]
In
September of 2003, a complaint was filed with the Canadian Human Rights
Commission (the Commission) alleging that TW was discriminating against persons
or groups of persons on the basis of religion, by repeatedly communicating
messages throughout an internet website, that would likely expose persons of
the Jewish faith to hatred or contempt, contrary to subsection 13(1) of the Canadian
Human Rights Act, R.S., 1985, c. H-6 (the Act).
[3]
Pending a
final decision by the Canadian Human Rights Tribunal (the Tribunal) on October
4, 2005, de Montigny J., a Judge of the Federal Court, issued an interlocutory
injunction ordering that TW be restrained from communicating by means of the internet
messages that are likely to expose persons to hatred or contempt contrary to
subsection 13(1) of the Act.
[4]
On March
14, 2006, the Commission began contempt proceedings against TW for his alleged
breach of the October 4, 2005 interlocutory injunction.
[5]
On April
13, 2006, the Tribunal rendered its final decision regarding complaints against
TW. It found that his internet messages violated section 13(1) of the Act.
A cease and desist order was issued together with certain financial penalties.
[6]
The Tribunal’s
decision was filed and entered as a Federal Court order for the purpose of
enforcement on April 19, 2006. As a result, TW was ordered to pay a penalty in
the amount of $6,000 to be received by the Commission within 120 days of being
notified of the decision. A further $5,000 was to be paid by TW for special
compensation and $500 for pain and suffering.
[7]
TW did not
seek to have the Tribunal’s decision judicially reviewed and has yet to comply
with the April 19, 2006 order of the Federal Court in any respect.
[8]
On July
12, 2006, TW was found to be in contempt of court and sentenced to a term of
imprisonment of nine months by von Finckenstein J., a Judge of the Federal
Court, for breaching the interlocutory injunction order of de Montigny J.
[9]
TW has
been incarcerated since July 13, 2006 at the Central North Correctional Centre,
located at Penetanguishene,
Ontario. Postings
by TW on the Vanguard News Network (VNN) forum and website have stopped since
July 11, 2006.
[10]
Weapons
charges against TW under the Criminal Code of Canada, for an alleged
incident on September 12, 2004 at Toronto
are pending.
[11]
By notice
of appeal dated August 3, 2006, TW requested that an acquittal of the contempt
order be entered or a new trial ordered. Alternatively, he asked that his
sentence be reduced to time served.
[12]
TW now
seeks bail pending his appeal with conditions in accordance with Rule 398 of
the Federal Court Rules, SOR/98-106. Counsel
for the Commission opposes his release and in the alternative, requests an
expedited appeal and release on strict conditions.
[13]
The
Supreme Court of Canada has indicated that the test for whether a person
convicted of contempt of court should be released pending appeal is akin to the
test applied in cases where an interim injunction is sought. That three part
test is more specifically set out in its seminal decision in RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at paragraph 35 (hereafter
RJR-MacDonald), namely:
1.
There is a
serious constitutional issue to be determined.
2.
Compliance
with the new regulations will cause irreparable harm.
3.
The
balance of convenience, taking into account the public interest, favours
retaining the status quo until this court has disposed of the legal issues.
[14]
On appeal,
TW raises issues as to evidence being improperly admitted by von Finckenstein
J. contrary to section 13 of the Charter as well as a failure to allow
sentencing submissions and an unduly harsh sentence for a first offender.
Without question, a serious issue has been raised on this appeal.
[15]
Improper
incarceration will cause irreparable harm to TW. Accordingly, part two of the
test is also met.
[16]
The third
branch of the test is more difficult, i.e. the assessment of the balance of
convenience to the parties. Here it must be determined which of the two
parties will suffer the greater harm from the granting or refusal of a stay,
pending a decision on the merits. In doing so, this Court must consider the
interests of justice and the public interest, the latter being defined as both
concerns for society generally and the particular interests of identifiable
groups (see RJR-MacDonald at paragraphs 66 and 75).
[17]
In my
analysis, the balance of convenience clearly points to TW’s release on strict
conditions pursuant to Rule 398 as follows:
(a)
The
Appellant shall reside at 12
Snowdon Crescent, London, Ontario, N6E 1G4, and provide this Court with
his telephone number as well as his past or current employer’s address and
phone number. The Appellant shall not change either his place of residence or
employment, or phone numbers without prior notification to this Court;
(b)
The
Appellant shall remain within the Province
of Ontario and his passport, if any, is to be delivered to and held by his
counsel, Mr. James Foord;
(c)
The Appellant
shall surrender himself into custody at the Central North Correctional Centre,
located at 1501
Fuller Avenue, Penetanguishene, Ontario, on the day prior to the day
on which the hearing of this Appeal A-334-06 is set, i.e. January 16, 2007;
(d)
The Appellant
shall refrain from contacting or communicating directly or indirectly with Mr.
Richard Warman or the members, staff or counsel of the Commission with the
exception of communicating through his counsel, Mr. James Foord, for purposes directly
related to this appeal;
(e)
The
Appellant shall keep the peace and be of good behaviour;
(f)
The
Appellant shall refrain from posting or writing any messages on the internet
whatsoever, in whatever form, either directly or indirectly, under his name or
a pseudonym previously used or not; and
(g)
The
Appellant shall post with the Court cash bail of $5,000.00 or its equivalent
payable to the Receiver General for Canada.
[18]
I would
also order the following:
(a)
The order
of von Finckenstein J. dated July 12, 2006, should be stayed and the appeal should
be expedited;
(b)
Counsel
for the Appellant and respondent shall agree to the contents of an appeal book
on or before October 13, 2006;
(c)
The appeal
book should be served and filed on or before Friday October 27, 2006;
(d)
The
Appellant shall serve and file his memorandum of fact and law on or before
Monday November 27, 2006;
(e)
The
Respondent shall serve and file its memorandum of fact and law on or before
Thursday December 14, 2006;
(f)
The
hearing of this appeal will take place on Tuesday January 16, 2007 at 2:00pm at
the Thomas D’Arcy McGee building, 10th floor, 90 Sparks Street in the City of Ottawa; and
(g)
The
duration of the hearing shall be 2 hours.
“B.
Malone”
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