Kyburz Case Summary - September 2003
BASIC SUMMARY OF THE CASE
Warman filed a complaint on 2 February 2002 alleging that Kyburz had communicated telephonically matters that were likely to expose Jews to hatred or contempt on the basis of race, national or ethnic origin, and religion contrary to s. 13(1) of the Act. Warman's complaint was later amended to include an allegation of retaliation for having filed the human rights complaint contrary to s. 14.1 of the Act.
The CHRT held two days of hearings in March of 2003 at which Kyburz declined to appear. The Tribunal rendered their decision upholding both complaints on 9 May 2003.
WHAT ARE THE FACTS OF THIS CASE?
Warman became aware of Kyburz's website patriotsonguard.org in March of 2001. Due to the anti-semitic content of the website, Warman brought the matter to the attention of Kyburz's US-based Internet Service Provider (ISP). The ISP first asked Kyburz to remove the offending material and then closed the site when he refused to do so. In the meantime, Kyburz had obtained a copy of Warman's email from the ISP and immediately began attacking Warman through anti-semitic emails and postings on his website that presumed Warman was Jewish.
The website resurfaced approximately a week later using another ISP and Kyburz continued an incessant campaign vilifying Warman with anti-semitic postings on his website. This website was ultimately shut down in December of 2001 after Warman contacted Kyburz's second ISP.
A few months later, Kyburz established a public internet forum on the Yahoo website entitled Patriots On Guard and continued to disseminate messages with similar content to those that had appeared on his website.
After Warman filed the human rights complaint in February 2002, Kyburz's attacks upon him intensified.
WHAT DOES THE DECISION SAY?
a) Did Kyburz repeatedly communicate or cause to be communicated the messages on the website?
b) Were the messages communicated in whole or in part via a telecommunications undertaking within the authority of Parliament?
c) Is the subject matter of the messages likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination?
d) Did Kyburz retaliate or threaten retaliation against Warman for filing the human rights complaint?
e) If yes to the above, what are the appropriate remedies?
How the Tribunal Dealt with the Issues
a) Did Kyburz repeatedly communicate or cause to be communicated the messages on the website?
There was substantial evidence that led the Tribunal to hold that he had. Similar to the Zundelsite, Kyburz signed his name on the homepage of the website, as well as on numerous other documents contained on the website. In addition, the site solicited subscriptions to a newsletter and requested that moneys be sent to Kyburz's address in Blairmore, Alberta. Lastly, Kyburz was the registered owner and contact for the website on registration documents for the URL of www.patriotsonguard.org.
In terms of the question of repetition, the Tribunal simply referred to the visitor counter of the website to demonstrate that the messages had been repeatedly disseminated.
b) Were the messages communicated via a telecommunications undertaking within the authority of Parliament?
The Tribunal noted that it was not entirely clear as to which version of s. 13 governed the complaint in that some of the instances in question pre-dated the change in the Act in December of 2001 that made it explicit that the jurisdiction of the Act included the internet.
The Tribunal found, however, that in either event the messages fell within the Tribunal's jurisdiction. If the earlier version applied, then the Tribunal would apply the decision in Zundel to give jurisdiction, and if the later version applied, then jurisdiction was explicit.
c) Was the subject matter of the messages likely to expose a person(s) to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination?
In addition to his own posts, Kyburz would frequently post material authored by others and append his comments at the end. The Tribunal noted that much of the material concerned the supposed evils of 'Ashkenazi Jews' or Jews of European descent. Taken together, the Tribunal held that the content of Kyburz's website told the reader that Jews are innately devious, treacherous, murderous, desired to kidnap and kill "white children" as well as take over the world. Further, Kyburz described Jews as sub-human, scum, vermin, and low-lives, and posted material that advocated the extermination of the Jewish people.
The Tribunal had no difficulty in finding that this material would foster hatred and contempt of Jews on the basis of their religion. Further, due to his persistent attacks on Jews of European origin, the Tribunal also held that Kyburz had discriminated against Jews on the basis of their national or ethnic origin. The Tribunal also accepted the expert witness testimony that Kyburz's efforts to ascribe negative character traits to Jews as innate or inherited supported a finding of discrimination on the basis of race due to Kyburz's intent rather than actual fact.
On the basis of the evidence and these findings, the Tribunal upheld the section 13 complaint against Kyburz.
d) Did Kyburz retaliate for the filing of the complaint?
The Tribunal found that Kyburz was responsible for the creation of the 'patriots on guard' Yahoo forum and for much of the content therein. This content repeatedly attacked Warman, indicated that a letter had been sent to Warman's employer ascribing the commission of heinous criminal activities to Warman and demanding his dismissal. More troubling to the Tribunal were the thinly veiled death threats issued by Kyburz against Warman on this forum.
There was some question regarding the admissibility of emails sent by Kyburz to numerous parties including members of the Commission shortly before the Tribunal hearing which left inadequate time for their disclosure by the Commission. As Kyburz had chosen to boycott the hearing, the material could not be disclosed to him there. In the end, the Tribunal declined to rule on the question as they indicated that the emails in question added little to the complaint and were merely a continuation of the same types of material already contained on the record.
Based on the existing material, the Tribunal found that Kyburz had repeatedly attacked Warman's character, attempted to have Warman fired from his employment, and issued death threats against him and that such actions escalated dramatically following the filing of the human rights complaint. Thus, the Tribunal upheld the s. 14.1 complaint as well.
e) What are the appropriate remedies?
i) for the s. 13 complaint?
The Tribunal ordered that Kyburz and any persons acting in concert with him cease communicating telephonically messages such as those found in the evidence entered before the Tribunal, or any similar such messages that would be likely to expose a person to hatred or contempt on the basis of a prohibited ground of discrimination.
The Tribunal further ordered Kyburz to close the Yahoo forum within seven days of receiving the Tribunal judgement, but declined to order Kyburz to contact an internet body that archived much of the internet and where a few remnants of Kyburz's site could still be found.
Based on Kyburz's vicious and anti-semitic tirades against Warman, the Tribunal ordered Kyburz to pay $15,000 in damages under s. 54(1)(b) of the Act. In a ruling of some interest, the Tribunal
accepted the Commission argument that Warman was entitled to damages as a victim of the discrimination despite the fact that he is not himself Jewish. The Tribunal agreed that it was Kyburz's intent to discriminate on a prohibited ground that should be the deciding factor, and not the accuracy of that intent. Interest was also awarded.
ii) under the penalty clause of s. 54(1)(c)?
This was the first time that the Tribunal had considered the new penalty provisions under s. 54(1)(c) that give them the power to order what is in essence a monetary fine of up to $10,000 as a penalty to reflect society's disapproval taking into account the nature of the discrimination, the intent of the person, their past practices, and their ability to pay.
The Tribunal held that Kyburz's actions were extreme in nature and had included calls for the extermination of the Jewish people thus weighing in favour of a significant penalty. The fact that they had no evidence of previous practices served somewhat as a mitigating factor. Given Kyburz's boycotting of the hearing, the Tribunal gave little weight to his self-proclaimed poverty and said that it is the responsibility of the respondent to raise admissible evidence of their financial circumstances. With all of the above in mind the Tribunal imposed a penalty of $7,500 payable within 35 days of notification of the decision.
The Tribunal reviewed the fact that Kyburz had engaged in serious retaliation against Warman including repeated defamation, attempting to have Warman fired from his position at the Federal Court, and also issuing death threats against him.
A cease and desist order in relation to the retaliation was issued. In addition, the Tribunal considered Warman's testimony as to the effect of the retaliation including concerns for his personal safety to the extent of involving the police in the matter. Based on this, an award of $15,000 in damages for pain and suffering was considered appropriate with interest.
WHAT DOES THIS MEAN FOR FUTURE CASES?
The case has fairly important future implications because:
• - reinforces human rights act jurisdiction over the internet
• - the Tribunal will still render a decision even if the respondent attempts to boycott the hearing
• - the intent of the discriminator is the deciding factor, (ie. Kyburz attacked Warman because he erroneously thought he was Jewish) not the accuracy of that intent
• - the substantial damages awarded should serve as a deterrent to others
Kyburz Warman anti-semitism