CHRT v. Taylor and Western Guard T.D. 1/79
Decision released July 20, 1979.
THE CANADIAN HUMAN RIGHTS ACT
HUMAN RIGHTS TRIBUNAL
J. FRANCIS LEDDY
SIDNEY N. LEDERMAN
CANADIAN HUMAN RIGHTS COMMISSION,
CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION,
DAVID S. SMITH,
TORONTO ZIONIST COUNCIL,
- and -
THE WESTERN GUARD PARTY
JOHN ROSS TAYLOR
(also known as George Morang).
Counsel for the Canadian Human Rights Commission
Counsel for the Toronto Zionist
Council; Ajalon Lodge; David S. Smith;
The Canadian Holocaust Remembrance Association
JOHN ROSS TAYLOR:
In person and on behalf of The Western Guard Party.
DATES OF HEARING:
June 12th, 13th, 14th and 15th, 1979.
REASONS FOR DECISION
This inquiry is unique in two respects. It is the first hearing by a Canadian Human Rights Tribunal into complaints filed under the Canadian Human Rights Act, S.C. 1977, c.33 and moreover, it is the first examination of s.13(1) of the statute which does not appear to have a counterpart in any other jurisdiction. It reads as follows:
"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."
This is a hearing into the complaints lodged by David S. Smith dated May 25th, 1979, the Toronto Zionist Council dated September 7th, 1978, Ajalon Lodge dated September 14th, 1978 and the Canadian Human Rights Commission dated November 6th, 1978, January 16th, 1979, March 19th, 1979 and May 29th, 1979 and the Canadian Holocaust Remembrance Association dated May 16th, 1979 against the Western Guard Party and John Ross Taylor (also known as George Morang) that the Respondents had engaged in a discriminatory practice by communicating telephonically, repeatedly, over telephone number 967-7777 in Toronto, matter that is likely to expose persons identifiable on the basis of race and religion to hatred or contempt. The complainants of the Canadian Human Rights Commission identify particular dates on which the impugned messages were communicated as well as alleging that they occurred repeatedly and in a continuing fashion. Those dates are July 6th, September 27th, November 15th, November 11th, December 14th and 19th, 1978 and January 9th, February 28th, May 2nd and 8th, 1979. 2. LIMITS ON FREEDOM OF SPEECH
At first glance, it would seem anomalous that the Canadian Human Rights Commission, which by its name would appear to be in favour of fundamental freedoms, is one of the Complainants arguing for the restriction of the Respondents' general freedom of speech. Nevertheless, Parliament has obviously ordained that certain kinds of speech have to be curtailed in the public good because the potential for harm outweighs the value to society in the guarantee of unrestricted freedom of speech. We are faced with the task of interpreting s.13 of the Canadian Human Rights Act and determining its application to the facts before us.
Mr. Taylor and the Western Guard Party instituted a telephone message service in Toronto whereby any member of the public by dialing the relevant phone number could listen to a pre-recorded message of approximately one minute in length. The evidence disclosed that from 1977 to date, 13 different messages have been disseminated over the telephone lines in this fashion. Since 1973 the telephone number in question has been 967-7777. All the messages were drafted and recorded by Mr. Taylor himself who is the acknowledged leader of the Western Guard Party. This telephone service has been financed from time to time by the Western Guard Party or Mr. Taylor or his assistant Mr. Jack Prins.
Although this telephone number has not been widely publicized by the Respondents, they have attempted to make the number known primarily in two ways:
• 1. by the distribution of cards bearing only a maple leaf symbol and the words "Dial 967-7777", among individuals and crowds and by slipping them under doorways. There was nothing on the card which would indicate the nature of the message that a caller would receive;
• 2. by a notation in the telephone book which reads "White Power Message--967-7777". The name alone indicates to a prospective caller the nature of the message that he will hear should he dial the number.
Appended as a schedule to these reasons are the transcripts of the tapes in question which were submitted into evidence and verified as accurate by all parties and they cover the period from August 17th, 1977 through to May 8th, 1979. We have had the benefit of hearing all of the tapes that are still in existence. These are the telephone messages that the Complainants wish this Tribunal to restrain.
The Tribunal is not unmindful of the tradition of free speech which has been a cornerstone of our society and which is enshrined in s.1(d) of the Canadian Bill of Rights. It reads:
"It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely... freedom of speech."
Section 2 of the Bill of Rights also provides: "Every law of Canada shall, unless it is expressly declared by an act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights of freedoms herein recognized and declared...".
In Curr v The Queen,  S.C.R. 889, Mr. Justice Laskin (as he then was), speaking for the Supreme Court of Canada, stated at p. 896 that with respect to the scope of s.1 of the Bill of Rights, "the section is given its controlling force over Federal law by its referential incorporation into s.2". Freedom of speech, however, is not presently unrestricted in this country and has never been so regarded.
The common law preceding the enactment of the Bill of Rights never permitted unbridled freedom of speech. Chief Justice Rinfret of the Supreme Court of Canada in Boucher v The King,  1 D.L.R. 657 at 666 put it this way:
"I would not like to leave this appeal, however, without stating that to interpret freedom as licence is a dangerous fallacy. Obviously, pure criticism, or expression of opinion, however severe or extreme, is, I might also say, to be invited, but as was said elsewhere, 'there must be a point where restriction on individual freedom of expression is justified and required on the grounds of reason, or on the ground of the democratic process and the necessities of the present situation.
It should not be understood from this court--the court of last resort in criminal matters in Canada--that persons subject to Canadian jurisdiction 'can insist on their alleged unrestricted right to say what they please and when they please, utterly irrespective of the evil results which are often inevitable.'"
Even subsequent to the enactment of the Canadian Bill of Rights, the courts have held that "freedom of speech" as that expression is used in s.1(d) of the Canadian Bill of Rights does not provide Canadian citizenry with an unrestricted licence to say what they want, when they want. In Regina v McLeod (1970), 1 C.C.C. (2d) 5 at p. 7, Mr. Justice Maclean of the British Columbia Court of Appeal considered s.1(d) and adopted the words of Lord Wright in an earlier case as follows:
"'Free' in itself is vague and indeterminative... free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law."
In a similar view, the Manitoba Court of Appeal in R v Prairie Schooner News Ltd. et al (1970) 1 C.C.C. (2d) 251, held that freedom of speech could not be totally unfettered and in the circumstances of that case held that an accused could not rely upon the Bill of Rights in defence of his publication of obscene material. In fact, these limitations on freedom of speech are so well recognized in Canadian jurisprudence that Chief Justice Evans in Clark et al v Attorney General of Canada (1978), 17 O.R. (2d) 593, in considering the effect of s.1(d) of the Bill of Rights, was moved to say at p. 624:
"It is trite law to say that freedom of speech is not absolute but is freedom governed by law."
And, even more recently, Mr. Justice Spence, speaking for the majority of the Supreme Court of Canada in CKOY Ltd. v The Queen (1979), 43 C.C.C. (2d) 1 at p.12 expressed a similar sentiment with respect to freedom of the press as set out in s.1(f) of the Bill of Rights: "However, as has been stated on many occasions, the freedom of the press is not absolute and the press, as all citizens, is subject to the ordinary law and has no more freedom of expression than the ordinary citizen."
Accordingly, one must take cognizance of the various restrictions which the law has imposed upon any general right of freedom of speech. The Criminal Code proscribes seditious libel (ss.60-62); blasphemous libel (s.260); criminal defamatory libel against individuals (s.261); causing disturbances (s.171); the communication of false messages with intent to injure or alarm a person (s.330) the mailing of obscene matter (s.164).
There is also a well established body of law relating to defamation in Canada which may make a person liable for damages for the publication of words containing an untrue imputation against the reputation of another. It has been held that an imputation which tends to expose an individual to hatred, contempt or ridicule is defamatory of him: See Gatley on Libel and Slander (6th Edition) pp. 4-5. Members of an ethnic or racial group cannot resort to the law of defamation for civil redress in respect of statements which defame a group as a whole without singling out particular individuals. This law protects personal but not group reputation. Parliament, however, has made criminal certain kinds of speech which advocate genocide or promote hatred of groups. The hate propaganda sections of the criminal code, namely, sections 281.1(1) and (2) and 281.2(1) and (2) read as follows:
• "281.1 (1) Every one who advocates or promotes genocide is guilty of an indictable offence and is liable to imprisonment for five years.
• (2) In this section 'genocide' means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely:
• (a) killing members of the group, or
• (b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
• 281.2 (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace, is guilty of
• (a) an indictable offence and is liable to imprisonment for two years; or
• (b) an offence punishable on summary conviction.
• (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
• (a) an indictable offence and is liable to imprisonment for two years; or
• (b) an offence punishable on summary conviction."
Moreover, there is other federal legislation which curtails freedom of speech to some extent by administratively preventing the use of certain federal facilities for the transmission of matter or material which is considered obscene, indecent, immoral or scurrilous (s.7 of the Post Office Act) or broadcasting over radio or television any abusive comment on any race or religion (Regulations made under the Broadcasting Act, SOR/64-69, SOR/64-249, SOR/64-50). With respect to the former, an order may be made prohibiting the delivery of all mail directed to a person or deposited for mail by that person who contravenes the section of the Act. Violation of the Broadcasting Act Regulations could result in the loss of licence which would thereby deprive one of this medium of communicating his opinions. In addition, we now have section 13(1) of the Canadian Human Rights Act. Parliament has therefore moved in the direction of denying an individual or group use of a federal system or a federally regulated system of transmitting information for purposes of conveying hate or exposing individuals to hatred or contempt.
It appears to be the policy of Parliament that these communication systems are not available to assist individuals who are intent upon weakening the fundamental beliefs maintained within Canadian society and which are best expressed in s.2 of the Canadian Human Rights Act as follows:
"The purpose of this Act is to extend the present laws in Canada to give effect, within the purview of matters coming within the legislative authority of the Parliament of Canada to the following principles:
• (a) every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex or marital status, or conviction for an offence for which a pardon has been granted or by discriminatory employment practices based on physical handicap..."
These values are considered paramount and so worthy of preservation that it necessarily involves encroachment upon the desire of certain individuals within our society to say and do things which would deny equality of opportunity to others. Since World War II, these principles have attained universal recognition. Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination as passed by the General Assembly of the United Nations provides:
"States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:
• (a) Shall declare an offence punishable by law all discrimination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
• (b) Shall declare illegal and prohibit organizations and also organized and all other propaganda activites, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;
• (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination."
Article 5 of the United Nations' International Covenant on Civil and Political Rights states:
• "1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
• 2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent."
These principles have been accepted by Canada and in Canada's Report to the United Nations on the Implementation of Article 5 of the International Covenant on Civil and Political Rights, at p.17 it is stated:
"This article authorizes the Canadian Government to take certain actions which could restrict the freedom of action of persons or groups of persons who advocate the limitation or destruction of the rights or freedoms recognized in the Covenant. For example, Parliament could adopt law prohibiting any propaganda aimed at the destruction or limitation of the rights recognized in the Covenant. However, except for certain statutory provisions, such as:
• (a) ss. 281.1 to 281.3 of the Criminal Code, which prohibit hate messages directed against a group distinguishable by colour, race, religion or ethnic origin;
• (b) s.12 of the Canadian Human Rights Act which prohibits propaganda which, in respect of employment or the provision of services, including the provision of residential accommodation and commercial premises, incites discrimination on prohibited grounds, such as race, national or ethnic origin, colour, religion, age, sex, marital status or conviction for which a pardon has been granted and, in matters related to employment, physical handicap; and
• (c) s.13 of the same Act, which prohibits the use of the telephone to spread hate messages against an identifiable group on prohibited grounds of discrimination when the telecommunication undertaking so used falls within the legislative authority of Parliament, no such limitation of freedom of expression exists in federal legislation. The Canadian government considers that the rights and freedoms recognized in the Covenant, and those which are not, are, in Canada, sufficiently protected against action aimed at destroying them."
Accordingly, it is Canadian policy that individuals under the guise of freedom of speech and freedom of action cannot say things or take steps or incite or advocate the destruction of freedoms which all of us enjoy. 3. AN ANALYSIS OF THE MESSAGES
It is with this background that we now proceed to examine s.13 and the messages in question. This statutory provision raises a number of issues:
• 1. Does the author of the propaganda have to specifically intend to create hatred or to expose people to it? What if he believes he is merely telling the factual truth and leaves the conclusions up to others?
• 2. Must hatred or contempt be direct results of the message conveyed?
• 3. Is it necessary that someone actually receive the message and react to it?
• 4. Who is to do the hating?
• (a) People who already hate? i.e. the message merely reinforces and supports views previously held by the recipient?
• (b) People who did not hate before, but who are induced or incited to hatred by a communication?
• (c) do (a) and (b) refer to
• (i) a small group already pre-disposed?
• (ii) the reasonable person?
• (iii) the right-thinking person?
• (iv) everyone?
• 5. What is the standard of proof?
• 6. Does the statement have to express hatred directly itself, or may it only incidentally arouse hatred in its audience?
• 7. Is truth a defence?
• 8. What kinds of statements and what degree of animosity are necessary to bring a statement within the law?
• 9. Does it matter that people go to the message voluntarily, knowing what to expect? That is, what if the hate-inducing communication is sought out, rather than being imposed on people?
As we listen to and read the messages, we frankly admit that we find it difficult to follow the thread of thought in most of them. Professor Rene-Jean Ravault having analyzed the tapes and transcripts, was called as a witness by the Commission and provided considerable insight into the structure and effect of such telephonic messages. He is a member of the Department of Communication Faculty of Arts, University of Ottawa and has been teaching in the area of communication for 5 years. His courses deal with the process of human communication and content analysis of the media. He has also taught courses relating to political propaganda and in particular published an article relating to Nazi propaganda. Of particular interest to this inquiry is the fact that Professor Ravault is completing a doctorate degree at the University of Iowa and the subject matter of his thesis is the study of mass communication, mass media, the impact of television and the impact of radio broadcasting as they relate to political and advertising persuasion.
He testified that in order to ascertain the impact of the words spoken in the message, it was not sufficient to examine them in isolation but rather they must be read in social context. Most human beings do not receive and interpret words as they are written or spoken, devoid of subjective feelings. A number of factors contribute to the understanding and the effect that the words may have on the recipient. Professor Ravault listed them and commented upon them as follows:
• 1. The Personal Characteristics of the Person Receiving the Communication:
• When individuals are frustrated by reason of unemployment or have suffered a financial reversal they are more likely to be persuaded by propaganda and to become involved in some political action. When people have a weak personality or lack self confidence, they have a tendency to listen to things and to look for a group to which they may belong.
• They aspire to a particular cause which may assist them in fulfilling some of their needs and in overcoming their difficulties. People have a tendency to anchor their values in these groups and propaganda often serves as the catalyst for their joining such groups. When there is an economic recession or the country has suffered a national disappointment or there is widespread hardship, there is a feeling of instability and people are more likely to be receptive to propaganda in their search for a ready cure for the country's ills and their personal problems.
• 2. The Medium that is Used to Transmit the Communication: There is a difference between the effect of words spoken over the radio and words spoken over the telephone. The latter is more personalized and the degree of concentration is stronger. A tape recorded message, however, is not as effective as the exchange which takes place in a telephone conversation.
• 3. Credibility of the Originator: If the person making the communication relies upon strong authorities such as academics and politicians; if he invokes the quotations of famous religious leaders and even the concept of Jesus Christ and God; and, if he adopts their statements as being in accord with his position then that lends an air of credibility to what be is saying.
• 4. The Motivation of the Originator: If the recipient of a message knows that the originator stands to earn a profit should he persuade the recipient, then the message has less impact. However, if the recipient knows that there is no profit motive involved, that too lends weight to the message being given and is therefore more persuasive.
• 5. The Exploitation of Frustrating Situations: If the originator focuses in his message upon a contemporaneous problem such as the cause of a crippling postal strike, then the message has greater impact.
With these factors in mind, Professor Ravault proceeded to analyze the messages in a five step process:
• 1. a literal interpretation of what is said in each of the individual messages;
• 2. the cumulative meaning of what is said in the messages studied as a whole;
• 3. the effect of these messages as communicated over the telephone;
• 4. a comparison of the nature of the messages and Nazi propaganda as spread in the 1930's and 1940's;
• 5. an analysis of the messages in light of published sociological studies on hate communication in Canada.
Individually, the tapes vary considerably in terms of their respective characteristics and their tendencies to expose individuals to hatred or contempt.
The first message made on August 17th, 1977 is fairly innocuous in itself as the only group identified are communists, and specifically Chilean communists, but there are matters which might attract the listener's attention such as unemployment, inflation, immigration and profits to international capital. Professor Ravault felt that this message arouses feelings and the listener's interest and it may set the framework for messages to be delivered subsequently.
The second message made between September 10th and October 28th, 1977 is more specific. Various individuals and business enterprises are mentioned by name. There is a suggestion that there has been commercial fraud perpetrated on the public. The Mayor of North York is accused of being involved in some business fraud. In this context there is a reference to the fact that the Mayor of North York is Jewish. An atmosphere is created by this message suggesting business scandals and that a Jewish person is behind the substantial financial losses suffered by the shareholders and creditors of a corporation that he once controlled.
Professor Ravault concludes that these two messages and the next message made between October 29th and November 2nd, 1977 which again refers to commercial fraud with the implicit suggestion that Jewish firms or individuals with Jewish surnames are responsible, create a climate of frustration and makes the recipient anxious to know more about these scandals and how they are wearing away the fabric of state built by "our British forbears".
The fourth message dated April 4th, 1978 is more potent in language and is more direct than the previous messages. First, the originator invokes South Africa which is described as "one of the finest nations in the world" thereby implying that a nation which fosters apartheid is one to be admired. The message takes on stronger tones when it equates the mixing of races and the effect thereof with the destructive nature of an atomic war. The passage in question reads:
"Where large groups of different races mix in all phases of daily contact race mixing or miscegnation is inevitable. Compared to race mixing an Atomic War with near total destruction is preferable as race mixing is permanent destruction of the higher values of each race whereas Atomic War will leave a remnant however small that can rebuild but a race mixed society is forever doomed."
The direct implication is that even a Third World War is better than the consequences of the commingling of the races. The recommendation is that 40,000,000 Black Americans be deported to Africa and that there be made "special arrangements for the mixed". "Special arrangements" may be as euphemistic as the phrase "final solution" was for genocidal acts which took place during the Second World War. This message identifies the problem as Blacks mixing with Whites but states that there are others responsible for this:
"Communists are behind race mixing and just as Sir Winston Churchill pointed out, the founders of communism were Jewish, likewise, the leaders of the major black organization, the National Association for the Advancement of Coloured People-- NAACP, have been Jewish."
The problem of race mixing is now attributed to communism which is said to have Jewish origins. Accordingly, it becomes apparent that the target group of this propaganda is the Jews.
Tied to the question of race mixing is the fact that the country is in difficult economic straits and facing severe unemployment. Moreover, racial integration has adversely affected the quality of health services:
"Ten years ago, Toronto had some of the finest hospital services in the world. Today, the service has greatly degenerated and now we have many non-white persons in these services while Canadian born nurses often have to search for work in the United States."
Professor Ravault reasons that these statements have a persuasive effect because they link the race problem to particular economic situations in the country which may be adversely affecting the recipient of the message. The tape concludes by appealing to a certain segment of Canadian society:
"If you are born in Canada or a white European immigrant, then remember the time to fight for Canada and if necessary to give your life is now."
The next message was made on July 6th, 1978 and according to Professor Ravault, the target group becomes more defined and the allegation is that there is a conspiracy taking place. A call is made for positive action to put an end to the conspiracy. The conspiracy seems to centre upon the question of whether 6,000,000 Jews in fact died at the hands of Hitler:
"The big lie is that Hitler is said to have gassed 6,000,000 Jews whereas the truth is he never gassed one, although, some did die, but not by gas."
The Respondents invoke two authors of books, the titles of which indicate that their thesis is that this whole matter is a hoax.
This so-called conspiracy to perpetrate this hoax results in the following according to the Respondents:
• "1. It helps to spread communism.
• 2. Jews have received nearly 30 billion dollars and may get 90 billion by the year 2,000.
• 3. It proves that our society is controlled. In other words, unemployment, inflation and the encroaching Third World War are not accidents but programmed phenomenon."
The conspiracy is so entrenched, so the message will have us believe, that it has caused even the Canadian Government to cancel the mail privileges of Mr. Taylor and threatens the existence of the telephone message in question, and any person who dares to claim that the holocaust was a hoax.
Professor Ravault testified that the thrust of the message is that the originators of this alleged conspiracy should be hated since they are responsible for creating three of our most pressing problems, namely, unemployment, inflation and the encroaching Third World War.
The next message in respect of which Professor Ravault testified was recorded on September 27th, 1978. The message indicates that there is a small group of people who are causing the vast majority of Canadians to believe "vicious nonsense". The small group can only be either Jews or communists for it is the spreading of communism and the enrichment of Jews which are the results of the conspiracy. The conspiracy again is referred to as the perpetration of the lie with respect to the execution of 6,000,000 Jews by Nazi Germany. Professor Ravault states that if the recipient of the message cannot directly connect the Jews with the "small group of people" involved in the conspiracy, the subliminal effect will create that impression.
Professor Ravault felt that, psychologically, subliminal persuasion may be even greater than the force of a direct statement. Furthermore, the message urges the recipient to take some action. The persuasive grip, according to Professor Ravault, is greater with respect to the target group when the call is to "wipe out unemployment" or to "break this evil spell" which subliminally may be considered as wiping out Jews or breaking the evil spell of Jews since they are the ones responsible for unemployment. Professor Ravault states that in terms of propaganda technique, it is more acceptable to emphasize aggressive action against a problem about which everyone agrees such as unemployment or inflation but the indirect effect is to create hostile feelings against those who have allegedly created those problems.
The message made on October 4th, 1978 asserts that the Jews are a real threat to the white race and are responsible for a long list of evils confronting Canadian society:
"The white race is under attack. An international conspiracy of communist agents originally financed by the New York Jewish Banking House, Kuhn Loeb, that dominates the Federal Reserve Bank for half a century has mounted an all encompassing campaign against the white race. The prevalence of divorce, abortion, which is really legalized murder, smaller families, adoption of non-white children by whites, homosexuality, sterilization..."
The message also exhorts against race mixing and invokes the bible as an authority. The message also points to another group which is threatening the destruction of the white race:
"Pope after Pope has decreed that Masonry is the deadly enemy of the church and yet today 17 of the most powerful leaders of the Vatican are Masons, 5 of whom are Cardinals."
There is a reference to "Peet Botha" the Premier of South Africa who is described as the world's greatest statesman and again, this would imply admiration for the apartheid policy of South Africa. All of this is considered in the context of violent upheaval:
"World War III has already begun. When the world picks up the pieces in the year 2,000 the white race will emerge triumphant and lead the world to a glorious peace."
There cannot be a glorious peace without there being a glorious war. The message of November 17th, 1978 discusses the problems with the post office and blames the Canadian Postal Union and its outrageous demands for the strike. The head of the Union, Claude Parrot, is described as a communist inspired coward. The message then seems to indicate that there is a link between communism and Jews. The message according to Professor Ravault has a persuasive power because it ties the threat of communism which is caused by Jews to an event which is affecting Canadians and their everyday life, namely the postal strike. The equation then becomes that Jews are communists and communists are responsible for the strike and adversely affecting Canadians in their daily lives. These statements expose Jews to hatred and contempt, according to Professor Ravault.
In the message of January 9th, 1979 there is strong criticism of Trudeau and Levesque but it calls for violent action against "the media controlling forces behind Trudeau and Levesque". Levesque is labled a traitor and Pearson and Trudeau are held responsible for an open door immigration policy which is characterized as "anti-white, anti-British and anti-Canada". Then all of these problems are linked to communism and Jews. There is a reiteration of the statement that it is "the historical fact that communism was Jew founded and Jew controlled". There is also the subliminal suggestion that the media controlling forces are in fact the Jews since they are the ones who control communism. The emphasis is on "control".
The message which was made on February 28th, 1979 attempts to flame a climate of political discontent or instability. There is a reference in a subtle way at first and later in a direct way to the relationship between communism and Jews and that is made through the juxtaposition of the two thoughts:
"The truth is that Canada is only free for communist leaning leftists. Never mention the sacred cow, namely, the word 'Jew'... the Canadian Human Rights Commission has decided to take this message before a special tribunal due to a complaint by the Toronto Zionist Council because we mention that communism was Jew founded and Jew funded."
It is interesting to note that the phrase "Jew control" has been replaced by the phrase "Jew funded" and it leads one to believe that some thought has been given to the use of the word "control' in the previous message since it also described alleged Jewish domination of the media. The most discriminatory remark against Jews in this message is as follows:
"An article in a homosexual paper dealt with the subject of men seducing boys and it was thought to be sufficiently obscene and immoral that the matter was brought to court. The Judge ruled in favour of the homosexuals. In the ensuing blast of criticism, not a single member of the media dared to mention that the Judge Sidney Harris had formerly been the head of the Canadian Jewish Congress for years or that the lawyer for the accused Clayton Ruby was a co-religionist of the Judge."
This paragraph would indicate that because the Judge and the lawyer were Jews it had some effect on the decision which ruled in favour of homosexuals.
The message which was made on May 2nd, 1979 carries the theme a little further. After a subtle and indirect attempt to relate Jewishness with homosexuality a rather strong statement is made to urge listeners of the message to discriminate against Jews. If one followed the thrust of this message very carefully, it could lead the listener to believe that Jews are promoting homosexuality. In the recent past the question of homosexuality was a highly visible issue in Toronto, there having been a murder of a young boy by avowed homosexuals and the ensuing trial, and there had been a much publicized prosecution of individuals responsible for the publication of a controversial article on homosexual relationships.
The last message was made on May 8th, 1979 and it is almost entirely an appeal to violence against groups of people who are only implicitly identified:
"When Aryan man awakens to his racial heritage he will fight the degenerate Babylonian system with a vigor and intensity that will victoriously cleanse this planet forever of certain evil parasites of international finance who cause war, unemployment, inflation and the conditions that breed moral perverts, drug addicts, and besotted alcoholics."
This message is implicit but in view of the historical fact that Babel and Babylonian refers to a confusion of tongues, cultures and races and Babylon is a place to which Jews had been deported, the listener gets an idea of whom the Respondents are talking about. Their reference to "evil parasites of international finance" is a common stereotype for Jews.
Professor Ravault concludes that the majority of these messages when analyzed separately expose listeners to discrimination, hate and contempt against minority groups and more particularly the Jews. When considered in their totality, the exposure to hatred and contempt is even greater.
Not only is there extreme criticism of Jews as being the root cause of many of the economic and political problems facing Canada, but the messages over the period of time that they were telephonically delivered increasingly call for violence against Canadian minorities and especially Jews. The messages contain aggressive overtones in such phrases as: "Remember the time to fight for Canada and if necessary to give your life is now." (message on April 4th, 1978); "fight for Canada" (message on February 28th, 1979); "fight for white Canada" (message on May 2nd, 1979); "the white race will emerge triumphant and lead the world to a glorious peace" (message on October 4th, 1978); "It is time that the labour movement woke up before these Commie inspired goons destroy Canada in an ocean of blood." (messages on November 17th, 1978 and December 19th, 1978); "The time has come to liquidate the media controlling forces behind Trudeau and that traitor Levesque and with heroic, patriotic, action to prove McRuer a liar." (message on January 9th, 1979); "when Aryan man awakens to his racial heritage, he will fight the degenerate Babylonian system with a vigor and intensity that will victoriously cleanse this planet forever of certain evil parasites of international finance..." (message on May 8th, 1979).
Professor Ravault concludes that certain specified groups are targeted for violence and the necessity for violence becomes more persuasive as one listens to the messages in a continuum. 4. DO THE MESSAGES CONTRAVENE THE HUMAN RIGHTS ACT?
Having looked at these messages in some detail, the question then becomes whether they offend s.13(1) of the Canadian Human Rights Act. The fundamental issue is whether the subject matter of the messages "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". Although other minority groups are mentioned in the various tapes, the one particular identifiable group that is prominant is Jews, and it would appear clear that discrimination against them on that basis alone comes within the proscribed grounds of discrimination within the meaning of s.3 of the Act which reads:
"For all purposes of this Act, race, national, or ethnic origin, colour, religion, age, sex, marital status, conviction for which a pardon has been granted and, in matters related to employment, physical handicap are prohibited grounds of discrimination."
Parliament has decreed that the likelihood of exposure of a person or persons to hatred or contempt on these bases alone, is an unacceptable act. The Special Committee on Hate Propaganda in Canada would have gone so far as to make group defamation a criminal offence and recommended legislation prohibiting the making of oral or written statements or of any kind of representations which promote hatred or contempt against any identifiable group. The Committee concluded at page 64 of its Report that such legislation would set, "out as a solemn public judgment that the holding up of identifiable groups to hatred or contempt is inherently likely to dispose the rest of the public to violence against the members of these groups and inherently likely to expose them to loss of respect among their fellow man."
"Hatred" is defined in the Oxford English Dictionary (1971 Edition) as: "active dislike, detestation, enmity, ill-will, malevolence."
And "contempt" is defined as: "the condition of being contemned or despised; dishonour, disgrace."
The possible consequences of being held up to hatred and contempt are susceptibility to violence and loss of respect.
"Expose" is an unusual word to find in legislation designed to control hate propaganda. More frequently, as in the Broadcasting Act Regulations, Post Office Act provisions and in the various related sections of the Criminal Code, the reference is to matter which is abusive or offensive, or to statements which serve to incite or promote hatred.
"Incite" means to stir up; "promote" means to support actively. "Expose" is a more passive word, which seems to indicate that an active effort or intent on the part of the communicator or a violent reaction on the part of the recipient are not envisaged. To expose to hatred also indicates a more subtle and indirect type of communication than vulgar abuse or overtly offensive language. "Expose" means: to leave a person or thing unprotected; to leave without shelter or defence; to lay open (to danger, ridicule, censure, etc.). In other words, if one is creating the right conditions for hatred to flourish, leaving the identifiable group open or vulnerable to ill-feelings or hostility, if one is putting them at risk of being hated, in a situation where hatred or contempt are inevitable, one then falls within the compass of s.13(1) of the Human Rights Act.
The impugned material should be analyzed in the light of these concepts.
The relationship between those who propagate messages such as the ones in question and their audience is aptly described by the Special Committee on Hate Propaganda as follows at p. 29:
"The hate propagandist and his audience: some psychologists tell us that the typical hate propagandist (whether an individual or group) will do his best to be attractive to or to be liked by his prospective converts; to appear to be someone of status (by employing a military title, for example, or by citing eminent authors and books); to adopt a facade of total sincerity and altruism; to appear to possess a certain real or potential power; and to have information which is not available to society as a whole.
The typical item of hate propaganda usually makes some or all of the following points: the sender and the recipient share membership in a group which has been cheated of its birthright. They are God-fearing, decent patriotic citizens of a great country which is being run by traitors and dupes. There is an international conspiracy against goodness and democracy. It must be fought and in the fight there is no middle ground. People in the middle are as bad as the enemy itself. Fire must be fought with fire. The situation is urgent. There is an answer ('Support us with your money and we will grow strong enought to eradicate this menace.'). Many tracts are vague and unspecific as to what action should be taken beyond political and financial support, but an increasing number of those now circulating in Canada make blunt statements of an intention to expel, liquidate, or exterminate the target group.
The hate propagandist often resorts to pseudo-logic and 'Alice in Wonderland' syllogisms: some Jews are known to be Communists; therefore most Jews probably are Communists and communism must be a Jewish plot. He will also attempt to give the impression that no fundamental change of attitude is needed in order to see his point of view: thus murder is described as 'liquidation', robbery as 'recapturing property which has been stolen from us.'. Typically he will associate himself with positive values, opening his argument with ringing references to God, Democracy, Patriotism, Decency, etc. and may even attack such non-values as fascism or violence, in this way seeking to ingratiate himself with his audience before expressing his real opinions. His appeal is almost entirely to the emotions. It is usually one-sided and its conclusions, which are normally repeated several times, are always explicit.
How are people affected by these materials? The great majority of individuals are neither extreme bigots nor devoted liberals. Their initial response to some of the cleverer forms of hate propaganda is neither strongly favourable nor instantly hostile. It is with the degree of their acceptance or acquiescence that we must be concerned.
Most psychologists now accept the theory of general persuadability as a personal characteristic: given the right technique and circumstances, human beings can be persuaded to believe almost anything. Some individuals, of course, are more susceptible than others. Persons of low self-esteem or with a feeling of social inadequacy are consistently more easily influenced than persons without these personality attributes. Highly hostile individuals tend to be less susceptible than persons with little hostility, but on the other hand they also tend to hold generally negative opinions about others, particularly about minorities.
The once widely-held theory that frustration is always the antecedent of aggression has been considerably modified by contemporary psychological research. Frustration can lead to many responses which are not necessarily hostile or aggressive. Yet common sense suggests that an intensely frustrated person is more likely to be receptive to hate literature than someone who takes life as it comes."
The similarities of this description to the messages in question and as analyzed by Professor Ravault are remarkable. After listening and reading these messages and looking at them objectively, we believe that a caller could get the following impressions
• 1. The Respondents and the individuals to whom they are communicating belong to a patriotic and decent group who are being robbed of their birthright by some international conspiracy;
• 2. The conspiracy if traced to its roots is Jewish whether it be one of international finance or communism or perpetrating the "holocaust hoax". The conspirators are corrupt persons seeking only to enrich themselves and to debauch society by encouraging or at least permitting homosexuality, divorce, abortion, racial integration, drug addiction and alcoholism;
• 3. There is urgency to the situation. Drastic action must be taken to rid Canadian society of this menace and it is action which must be taken immediately;
• 4. Public assistance is required. There is a plea to support the fight against this menace by contributing money and encouragement to the Respondents;
• 5. The type of action to be taken against this threatening group is vague and unspecific. But ominously the telephonic voice uses such expressions as "liquidate, liberate, wipe out, fight, cleanse";
• 6. There is a circular logic to the messages which may have some effect upon the recipient of the message. As the Special Committee on Hate Propaganda at page 195 put it:
• "It is typical of hate messages to contain the following syllogism: 'Some Jews are communists; therefore, all Jews are communists and communism is a Jewish plot. Similarly, some Jews are wealthy, therefore, all Jews are wealthy and the Jews control the economy. Communists oppose segregation; therefore, integrationists are communists.'"
• 7. There is a certain appeal in the messages as they relate to such emotional topics as exploitation, conspiracy, sexual deviation, fraud, etc.
The messages, we believe, are designed to incite hatred and contempt for Jews. What other rationale can there be for the dissemination of such vile material? But that does not end the inquiry. The intention of the communicator is not determinant of the issue of whether the content of the messages is likely to expose Jews to hatred or contempt. As Judge McMahon said in R v Buzzanga and Durocher (December 23, 1977 Unreported) at p. 13:
"... the meaning of a message resides in the receiver, based on his own conceptions as opposed to the initial intent of the sender."
We are concerned with neither the sender's intention nor the actual effect upon listeners of the expression of opinion but rather the likely impact of such expression of opinion and the feelings that may be generated against the victims of the propaganda.
It must now be determined whether the messages in fact are likely to expose the individuals referred to in the messages and Jews as a whole to hatred or contempt. There has been much sociological research relating to the individual's susceptibility to persuasive communication and the type of individuals who are most influenced by such messages. As mentioned earlier in these reasons, some sociologists say that there is a correlation between an individual's feeling of social inadequacy and low self-esteem and his susceptibility to this type of message; overly hostile individuals may be influenced by hate literature to the extent that such individuals already agree with their contents; frustration in employment and social relationships generally may make an individual more receptive to hate literature.
In interpreting s.13 of the Canadian Human Rights Act, however, one must be concerned with the possible susceptibilities of those individuals who may dial the phone number in question. They may have learned of the number from the cards distributed by the Respondents which provide no clue of the type of message that they will hear. It may well be that by deciding to dial this phone number they already have a preconceived notion of the type of message that they will hear. If an individual comes upon this phone number in the telephone book where it is described as "White Power Message" or learns of it by reading it on a spray painted hoarding, usually associated with some racial epithet, one could conclude that that particular caller already possesses feelings of hate and contempt for minority groups. Those feelings may be confirmed and inflamed further, however, by messages which have an authoritative flavour to them. But in any event, the personality makeup and the preconceived feelings of the actual callers are not in issue in the interpretation of s.13. The question is whether the matter communicated "is likely to expose a person or persons to hatred or contempt". It may be that certain individuals find the message so laughable or repulsive that it is the sender of the message who is exposed to hate and contempt. On the other hand, it is reasonable to conclude that there is a likelihood that some individuals may well harbour feelings of hatred and contempt for the minority groups singled out in the messages after listening to them. As is stated in the report by the Special Committee on hate and at page 200:
"... the frequently encountered assumption that a person is either all bigot or all liberal, and therefore either totally receptive to hate propaganda or not at all, is a fallacious one. Rather, differences in attitudes, personality, and persuasibility form a continuum with a great mass of individuals lying between the extremes that we label as liberal or bigot. The issue of great or social concern is the reaction of the great mass of people who are neither extreme bigots nor devoted liberals, whose attitudes run the gamut from mild ethnocentrism through indifference to moderate liberalism. It is their greater or lesser acceptance or at least acquiescence which poses the potential threat to a democratic system of government, and the freedom of its citizens. Our concern, then, is not what makes one an authoritarian bigot, but rather, what determines the degree of acceptance to persuasion attempts."
Each tape or message should be considered in its entirety in determining whether it has the effect proscribed by s.13(1) of the Canadian Human Rights Act. R v Buzzanga and Durocher supra, was a prosecution under s.281.2 of the Criminal Code and in considering whether the message in question wilfully promoted hatred against the French Canadian public in Essex County in Ontario, Judge J.P. McMahon examined the message as whole. He said at page 11:
"It is the view of the court that the handbill cannot and should not be dissected and considered paragraph by paragraph. It was distributed as one complete, indivisible, communication and its cumulative effect is what must be determined."
We think this is a sensible approach and have adopted it. Upon listening to the tapes and reading the messages, it is hard to believe that a rational individual in 1979 would take these incoherent meanderings seriously. But are individuals any more rational than those Germans affected by the comparable rantings of Adolph Hitler and his supporters? Mr. Paul Goldstein and Mrs. Sabina Citron, both Jewish survivors of the death camps related to the Tribunal how vilifying propaganda similar to the messages in question had stereotyped them and their families and members of their ethnic group as being the embodiment of all that was evil. Mr. Goldstein described graphically the ultimate result of such propaganda:
"This caused me to spend my childhood years as a hunted animal in hiding, in starvation and fear of death. It caused my mother and father to be deported; it caused all my relatives living in Europe, cousins and nieces even younger than I was, uncles and aunts, grandparents to be torn from their modest daily lives and to disappear in the Nazi death machine never to reappear again."
Professor Ravault testified that a listener to these messages, who has some knowledge of contemporary European history must be struck by a sense of "dÈja vu". He felt that the parallels were remarkable.
Although, these messages did not mention Nazi Germany or the Nationalist Socialist Party or the Third Reich by name, there are certain references which lead one to believe that the communicator finds their policies and principles praiseworthy. In the September 27th, 1978 tape, the Respondents say: "It was the work ethic that saved Germany". More telling is the comment in the May 8th, 1979 message "This awakening began in Europe in the twenties." That corresponds with the rise of the German National Socialist Party. Moreover, the communicator comes to the defence of Hitler to whom the atrocities are attributed by stating that he "did not gas a single Jew."
Other parallels abound. The following ideals of Nazi Germany are repeated in these messages:
• a) the making of robust youth, free of sexual perversion and drug and alcoholic addictions;
• b) the necessity for racial purity;
• c) economic difficulties are created by racial integration;
• d) the Jews are international conspirators who have used communism and capitalism and racial integration to profit themselves;
• e) Jews should be denied entry into the professions or public service. In the Respondents' messages Jews are said to be unfit to do anything that requires them to take an oath;
• f) violent action should be taken against them.
Although many of these messages are difficult to follow, there is a recurring theme. There is a conspiracy which controls and programmes Canadian society; it is difficult to find out the truth about this conspiracy because our books, our schools and our media are controlled by the conspirators. The conspirators cause unemployment and inflation; they weaken us by encouraging perversion, laziness, drug use and race mixing. They become enriched by stealing our property. They have founded communism which is responsible for many of our economic problems such as the postal strike; they continue to control communism and they use it in furtherance of the conspiracy. The conspirators are Jews.
Professor Emil Fackenheim, a distinguished Professor of Philosophy and author of books on Jewish history and theology, testified that these opinions are not new in any way. They are the modernized version of the medieval view of Jews who are the devil incarnate whose conspiratorial objective in life is to destroy Christendom. This is the kind of antisemitism which has been around for ages and which led to such horrendous consequences in the 1930's and 1940's.
It would appear from Mr. Taylor's cross-examination of witnesses and his argument that he was attempting to establish the truth of what he said about Jews in his tape recorded statements. Strange as it may sound, the establishment of truth is not in issue in this case. Unlike the statutory defences set out in s.281.2(3) of the Criminal Code which make truth a defence to a criminal prosecution for public incitement of hatred against any group distinguished by colour, race, religion, or ethnic origin, no equivalent defence is available in the Canadian Human Rights Act. Parliament has deemed that the use of the telephone for this kind of discriminatory message is so fundamentally wrong, that no justification for the communication can avail the Respondents. The sole issue then is whether the telephonic communications of the Respondents are likely to expose a person or persons to hatred or contempt.
Our initial reaction to this material was that it was crudely written and repugnant, not credible, and perhaps not dangerously harmful. But we have moved to a position of concern as we have considered this matter and the evidence adduced. Our feeling is in accord with Judge McMahon who said of the hate tract that he considered in the Buzzanga case at p.13:
"I am satisfied that the vast majority of the residents of this county would view the contents of this document with distaste if not outright revulsion. However, there is that certain segment in every community whose views would be reinforced and increased by the message."
We share the same distrust of the rationality of mankind expressed by the Special Committee on Hate Propaganda in Canada at p. 8 of its Report:
"In a number of ways, we are less confident in the 20th Century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them. In the 18th and 19th Centuries, there was a widespread belief that man was a rational creature, and that if his mind was trained and liberated from superstition by education, he would always distinguish truth from falsehood, good from evil. So Milton, who said 'let truth and falsehood grapple: who ever knew truth put to the worse in a free and open encounter'.
We cannot share this faith today in such a simple form. While holding that over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstrations of truth put before them and forsake the good they know. The successes of modern advertising, the triumphs of imprudent propaganda such as Hitler's, have qualified sharply our belief in the rationality of man. We know that under strain and pressure in times of irritation and frustration, the individual is swayed and even swept away by histerical, emotional appeals. We act irresponsibly if we ignore the way in which emotion can drive reason from the field.
Diatribes like the ones before us eventually gave rise to the most extreme form of hatred and contempt for Jews in Germany in the 1930's and 1940's. We need no other crucible for us to be satisfied that the themes of the Respondent's telephone utterances, which bear a marked resemblance to the propaganda of Goebbels and Hitler, are likely to expose Jews to hatred or contempt.
Specifically, with respect to s.13, we believe that on the balance of probabilities, which is the burden of proof upon the Complainants, all of the essential ingredients have been met. The Respondents constitute a person or a group of persons acting in concert. The Respondent, The Western Guard Party is not incorporated but there is no question that it constitutes a group of persons who have organized themselves under this name. They have a symbol. They have a letterhead. They have a post office box number. They have telephone lines in their name. They are listed in the telephone book. They have a bank account and infrastructure with officers and leaders. They hold themselves out as a unit. They therefore come within the meaning of the phrase "group of persons acting in concert".
We hold that Mr. Taylor and The Western Guard Party have communicated telephonically or have caused to be so communicated, repeatedly, messages in whole or in part by means of facilities of a telecommunication undertaking within the legislative authority of Parliament. Although some of the messages by themselves are somewhat innocuous, the matter for the most part that they have communicated, we believe, is likely to expose a person or persons to hatred or contempt by reason of the fact that the person is identifiable by race or religion. In particular, the messages identify specific individuals by name, Mayor Mel Lastman, Judge Sidney Harris, Mr. Clayton Ruby, and we believe that the remarks about those individuals have a likelihood of exposing them to hatred or contempt, merely on the basis that they are said to be Jewish. Moreover, we hold that the messages in question not only expose identified individuals but persons generally to hatred or contempt by reason of the fact that those persons are identifiable as Jews. We therefore find that the complaints are substantiated.
The question of relief remains. This Tribunal is empowered by the Canadian Human Rights Act to impose only one type of remedial measure. Sections 42(1) and 41(2)(a) provide:
• "42(1) Where a Tribunal finds that a complaint related to a discriminatory practice described in section 13 is substantiated, it may make only an order referred to in paragraph 41(2)(a)."
• "41(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, subject to subsection (4) and section 42, it may make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in such order any of the following terms that it considers appropriate;
• (a) that such person cease such discriminatory practice and, in consultation with the Commission on the general purposes thereof, take measures, including adoption of a special program, plan or arrangement referred to in subsection 15(1), to prevent the same or a similar practice occurring in the future."
We therefore order the Respondents to cease their discriminatory practice of using the telephone to communicate repeatedly the subject matter which has formed the contents of the tape-recorded messages referred to in the complaints.
DATED at Toronto this 20th day of July, 1979.
J. FRANCIS LEDDY - Chairman
SIDNEY N. LEDERMAN
The following transcripts of the messages are in the form submitted by Counsel for the Commission and Mr. Taylor:
SCHEDULE DATE OF MESSAGE
1. August 17, 1977
2. September 10, 1977 to October 28, 1977
3. October 29, 1977 to November 2, 1977
4. April 4, 1978
5. July 1978
6. July 6, 1978
7. August 7, 1978
8. September 27, 1978
9. October 4, 1978
10. November 17, 1978
11. December 19, 1978
12. January 9, 1979
13. February 28, 1979
14. May 2, 1979
15. May 8, 1979--END--