CHRC v CANADIAN LIBERTY NET(1)

CHRC v CANADIAN LIBERTY NET(1)

T.D. 17/93

Decision rendered on September 9, 1993

THE CANADIAN HUMAN RIGHTS ACT

R.S.C. (1985), chap. H-6 (as amended)

HUMAN RIGHTS TRIBUNAL

BETWEEN:

AZIZ KHAKI, MICHAEL ELTERMAN and CHARAN GILL

Complainants

- and -

CANADIAN HUMAN RIGHTS COMMISSION

Commission - and -

CANADIAN LIBERTY NET and

DEREK J. PETERSON

Respondents

DECISION OF TRIBUNAL TRIBUNAL:

J. Grant Sinclair, Q.C. - Chairman

Lois Rae Serwa - Member

Raymond Kirzinger - Member

APPEARANCES:

J.L. Finlay

A. Epstein

for the Commission

I.E. Epstein, Q.C.

M.R. Epstein

for Complainants,

Aziz Khaki and Michael Elterman

D.H. Christie

for the Respondent,

Canadian Liberty Net

DATES AND LOCATION OF HEARING:

May 25 - 29, 1993 and

and August 24, 25 and 27, 1992;

Vancouver, British Columbia

TABLE OF CONTENTS

INTRODUCTION

I. THE COMPLAINTS

II. NOTICE OF HEARING

III. THE COMPLAINANTS

IV. THE RESPONDENT - CLN

V. THE RELEVANT LEGISLATION

VI. THE FACTS

a) CLN Telephone Line

b) The Messages

(i) The December Transcript

(ii) The January Transcript

c) Response to the Allegations in the Complaints

(i) Answer of Box Holder 35683

(ii) Identity of Box Holder

d) Evidence of Khaki and Elterman

e) Evidence of Gordon Thomson and Rabbi Mordeccai Feuerstein

f) Evidence of Bart Testa

(i) admissibility

(ii) Testa in chief and cross examination

VII. APPLICABLE LEGAL PRINCIPLES

a) "hatred", "contempt" and "expose"

b) Persons or group of persons acting in concert to

communicate telephonically

c) By means of the facilities of a telecommunication

undertaking within the legislative authority of Parliament

d) Likely to expose a person or persons to hatred or contempt

VIII. ORDER

IX. WITHDRAWAL OF CLN COUNSEL FROM THE HEARING

APPENDIX 1

INTRODUCTION

In December, 1991, Aziz Khaki ("Khaki"), Michael Elterman ("Elterman") and Charan Gill ("Gill") filed complaints with the Canadian Human Rights Commission ("Commission") against Derek J. Peterson ("Peterson") and the Canadian Liberty Net ("CLN"), alleging that Peterson and CLN had engaged in a discriminatory practice by communicating telephonic messages in violation of Section 13(1) of the Canadian Human Rights Act ("C.H.R.A.").

I. THE COMPLAINTS

Khaki filed four complaints, two against Peterson dated December 16, 1991 and December 20, 1991, and two complaints against CLN dated December 12, 1991 and December 20, 1991. Elterman also filed four complaints, two against Peterson dated December 13, 1991 and December 20, 1991 and two against CLN dated December 12, 1991 and December 20, 1991. The particulars of the complaints are as follows:

Derek J. Peterson and the Canadian Liberty Net discriminates against Jewish and non-white person on the grounds of national or ethnic origin, race, colour and religion, by causing to be communicated telephone messages which expose them to hatred and contempt, in violation of Section 13(1) of the Canadian Human Rights Act.

On December 11, 1991, telephone number ((604) 266-9642) provided a menu of messages claiming that the Holocaust did not occur, that a "kosher" tax of hundreds of millions of dollars is being levied on all consumers, that non-white "aliens" are importing crime and other social problems, as well as a number of other messages which expose Jewish and non-white people to hatred or contempt. The message service was in operation the following day.

Gill's complaint is against Peterson dated December 13, 1991 in which he alleged as follows:

Derek J. Peterson discriminates against individuals belonging to visible minorities on the grounds of colour and national or ethnic origin, by causing to be communicated telephonic messages from "Canadian Liberty Net", which expose them to hatred and contempt, in violation to Section 13(1) of the Canadian Human Rights Act.

On December 12, 1991, telephone number (604) 266-9642 provided a menu of messages, one of which that the white race existed apart from "sub-men", that their ancestors bred together, built civilization, and that the white race are now surrounded by a rising tide of sub-men. The message stated that there is a threat of "death by race mixing", and that it is their sacred duty to bring their "truth" to victory. The "Heritage Fund" message states that immigration of massive numbers of aliens has brought "crime, corruption and violence" to Canada. These messages expose visible minorities to hatred or contempt. The message service was in operation the following day.

As a result of these complaints and subsequent investigation by the Commission, the Commission referred the complaints to a Human Rights Tribunal and this Tribunal was appointed on March 25, 1992.

II. NOTICE OF HEARING

On May 25, 1992, at the opening of the hearing, the Tribunal was advised that the Commission, the Complainants Khaki and Elterman and CLN were represented by counsel. Peterson was not represented by counsel nor was he present at that time, nor did he appear personally or by counsel at any time during the hearing. Gill was present from time to time during the hearing but never came forward and advised the Tribunal personally or any counsel present that he wished to give evidence or make any representations in support of his complaint.

The Tribunal Officer filed a number of exhibits (exhibits T-2 to T-8) containing a series of correspondence and notices of hearing which were both sent to Peterson by way of regular mail and security post and served upon him by way of attempted service and substitutional service advising him of the appointment of the Tribunal and the date and place of the hearings. The correspondence was addressed to Peterson at 3576 West 36th Avenue, Vancouver, B.C., V6N 2S2 and the process service was also to that address.

We are satisfied on the basis of this evidence that Peterson did receive adequate notice of these proceedings and chose not to attend. In any case, we were advised on the last day of the hearing that, in fact, Derek J. Peterson is a fictitious person and this is perhaps the best explanation as to why he did not attend the hearing.

III. THE COMPLAINANTS

The complainant Khaki is a resident of the City of Vancouver and is the President of the Committee for Racial Justice ("CRJ"). The CRJ is made up of approximately eighteen religious and ethnic organizations and its objectives are to combat racism by dealing with issues of violations of human rights and to promote equality within the community. Khaki has also been the President of the Pacific Inter-Faith Citizenship Association of B.C., an umbrella group made up of various faith groups in B.C. having the objective to promote dialogue, consultation and communication among religious groups.

The complainant Elterman is a clinical psychologist engaged in private practice in Vancouver. He has occupied various positions within Jewish community organizations and most recently was the Chairman of the Canadian Jewish Congress, Pacific Region. He currently holds the position of National Vice President of the Canadian Jewish Congress. He was the Vice President of the Committee for Racial Justice for the past three years.

IV. THE RESPONDENT - CLN

The evidence was that, Mr. Finlay, Commission counsel, caused searches to be made of the corporate registries of British Columbia, Ontario and Canada. CLN is not an incorporated company in any of these jurisdictions. Mr. Christie, counsel for CLN, advised the Tribunal at the beginning of this hearing that he appeared for the CLN and was instructed to do so by someone who was authorized to give those instructions. He took the position that he had no obligation to inform other counsel or the Tribunal as to the legal status of CLN or the persons who were associated with it. Rather, he asserted that it was the obligation of the Commission and the Complainants to bring this evidence forward.

It was not until the last day of the hearing that the Tribunal obtained some information about the status of CLN and those involved with it. At that time, it was disclosed to the Tribunal by Mr. Christie, in the course of his submission for an adjournment of the hearing, that CLN is only a "concept". Mr. Christie also advised the Tribunal that he was instructed by Tony McAlear. Mr. McAlear is the facilitator of CLN and is responsible for the CLN phone lines and messages. It was also disclosed at that time that Derek J. Peterson does not exist.

Gordon Mackie, Security Manager for British Columbia Telephone ("B.C. Tel.") gave evidence that B.C. Tel. was first incorporated in 1916 under an Act of the Parliament of Canada under the name of the Western Canada Telephone Company which name was changed in 1919 to the British Columbia Telephone Company. B.C. Tel. continues to be governed by this legislation.

Mr. Mackie, produced subscriber information records for the telephone number 266-9642. Derek J. Peterson doing business as Canadian Liberty Net is shown as the subscriber and the credit information shows Tony McAlear as a partner. The service is provided at 3576 West 36th Avenue, Vancouver, commenced on October 9, 1991 and is shown as a business line.

The subscriber records for phone number 266-9532 (which is the fax number referred to in the CLN telephone messages) show the subscriber as Derek J. Peterson and indicates this to be a residential service. Under credit information, the names of Tony McAlear and Mike McAlear appear and their previous phone numbers are shown.

V. THE RELEVANT LEGISLATION

The Complainants have alleged that Peterson and CLN discriminated against them contrary to section 13(1) of the CHRA and section 13(1) provides:

"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 the person or those persons are identifiable on the basis of a prohibited ground of discrimination."

Section 3(1) of the CHRA makes race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted prohibited grounds of discrimination.

VI. THE FACTS

(a) CLN Telephone Line

Ronald Yamauchi, a Human Rights Officer with the Commission, testified that he first received notice of the complaints on December 12, 1991. After receiving the complaints, Mr. Yamauchi telephoned (604) 266-9642, the number set out in the Complaints, and was connected to an automated voice message that announced itself as the Canadian Liberty Net and explained how to operate the touchtone phone message system. At that time he listened to a portion of the messages and then obtained a tape recorder and taped all of the messages from beginning to end and produced two audio cassettes which were filed as exhibits. The first audio cassette was recorded on December 14, 1991 from which Mr. Yamauchi produced a transcript of the messages ("December Transcript").

Mr. Yamauchi also called 266-9642 on January 28, 1992, recorded the messages heard at that time and produced a transcript of that cassette ("January Transcript").

During the hearing, the Tribunal listened to both cassettes and is satisfied that the Transcripts are an accurate transcription of the cassettes.

(b) The Messages

(i) The December Transcript

The December Transcript contains twelve messages which may be classified as follows:

Message 1 - Identification and Instruction Message.

Message 2 - "History Lesson from National Alliance and National Van Guard Books".

Message 3 - "U.S. Leaders Menu - Statement from Tom Metzger".

Message 4 - Fred Leuchter's First Message concerning his investigation of the alleged German gas chambers at Auschwitz, Berkenhau and Midonic (?) Concentration Camps.

Message 5 - Heritage Front, news on Ernst Zundel.

Message 6 - Heritage Front message concerning recent non European immigration to Canada and the problems they create.

Message 7 - Fred Leuchter's second message concerning death camp gas chambers capacities.

Message 8 - Fred Leuchter's third message relating to decrypted secret German codes on arrivals, deaths and departures of inmates at German death camps.

Message 9 - Music and the purging of Western Culture of worthwhile composers.

Message 10 - The Kosher Tax.

Message 11 - The Hollywood Name Changers.

Message 12 - The Masters of Hollywood.

Message no. 1 tells the caller that they have reached the CLN, Canada's "first computer operated voice message centre to promote cultural and racial awareness amongst white people." It also tells the caller that if they are offended or upset by the free expression of European cultural and racial awareness, they should not attempt to enter the CLN. If the caller wishes to hear the messages, the caller is told to press "1", or "88" to go the main menu. The message also tells the caller that the caller may send information, news clippings or essays to:

Box 35683

Vancouver, BC

Canada V6M 4G9

or send a fax to (604) 266-9532

Message no. 2 purports to be a history lesson that thousands of years ago, the first true men separated themselves from the sub-men around them and established civilization and states that today the white people of America face a similar decision, similar to the one taken by their white ancestors to hold themselves separate. The message goes on to say the white people of America are surrounded on all sides by a rising tide of the lower races who envy and hate them, who are streaming in uncounted numbers and who are encouraged to dispossess whites by the incessant anti-white drum beats of the alien controlled media. The message concludes by exhorting white people of the West not to succumb to the rising tide of colour and to take back their destiny.

Message no. 3 is a message from Tom Metzger of W.A.R., an acronym for "White Aryan Resistance" addressing his friends in Canada across the imaginary line that divides Aryan people. In this message, Metzger complains that Canada is going down the tubes because a small minority of historical parasites called ["beep"] are manipulating the country. He also says that swarms of wretched refuge have washed ashore and they are commonly known as ["beep"]. He blames these events on rotten politicians in Canada who are just as rotten as those in the U.S. and the only answer is the complete ["beep"] of them. The message contains a number of "beeps" indicating that certain words or statements that he would like to make have to be censored because of the suppression of free speech in Canada.

Message no. 4 - This is the first message from Fred Leuchter. He tells the story of when he went to Poland in 1988 to testify as an expert witness in execution technology to investigate with the alleged German gas chambers at Auschwitz, Birkenau and Majdanek. He then recounts how he has been victimized by an international conspiracy whose objective is to destroy his credibility and the media which has prevented him from pursuing his profession. Because of the effectiveness of this conspiracy, Leuchter reports that he has no business, no income, and former clients are afraid to deal with him.

Message no. 5 is a message about Ernst Zundel and his conviction in Germany by a German Judge on November 5, 1991 for making revisionist films, videos and radio broadcasts and for publishing Holocaust-doubting material. The message goes on to state that the convicting Judge never heard from Zundel or his lawyer, but accepted almost in its entirety the evidence of the prosecutor. He was convicted for saying things such as the diary of Ann Frank was a hoax and that a Jewish corpse took as long to cremate as a German corpse and that the currently believed Auschwitz death toll was exaggerated. The message pointed out that in Germany it is a crime not to believe in the Holocaust and to doubt that gas chambers existed in Nazi Germany.

Message no. 6 is a message from the Heritage Front and is a history lesson about the original settlement of Canada by pioneers from Europe, France, England, Scotland and Germany who came to Canada and succeeded in building Canada into a truly great nation. The message laments that today's immigrants bear no resemblance to the founding fathers and these immigrants come to Canada to escape the poverty and oppression of their homelands, but bring with them the very problems they sought to escape and as a consequence pockets of crime, corruption and violence are springing up in Canada. But, the message goes on to say, these new immigrants should not be blamed for trying to better their lot. Those who are blameworthy are Canada's politicians, law makers, big business and media, who for some reason peculiar to themselves, are engaging in the suicidal practice of cultural genocide.

Message no. 7 is the second message from Fred Leuchter in which he states that evidence he gave as an expert witness as to the alleged execution gas chambers at Auschwitz, Birkenau and Majdanek categorically shows that none of these facilities could have supported the multiple executions of persons that it is alleged were killed in these gas chambers. He concludes that to support the assertion that these numbers of people were killed at these facilities is both ludicrous and insulting to every individual on this planet, and those who promote this myth are irresponsible for not investigating the facts earlier and are perpetrating the greatest propaganda ploy in history.

Message no. 8 is the third message of Fred Leuchter in which he points out that secret German wartime messages decrypted by British Intelligence refer to the "daily return" of inmates at German concentration camps. The return from Auschwitz, the largest of the camps with 20,000 prisoners mentioned that the main cause of death was illness and also included references to shootings and hangings. But there were no references to deaths by gassing. The logical conclusion is that there were no gas chambers at Dachau, Buchenwald and Auschwitz and it is laughable to argue otherwise.

Message no. 9 has European culture as its theme. The message asks the question why the great composers of the West, such as Handel, Wagner and the Strauss family are so far removed from the twentieth century experience. It raises the question as to what factors are responsible for purging the West of any worthwhile composers and the answer given is that the true European expression has yielded to the alien trends of jazz and the swinging big bands, the saxophonic forefathers of contemporary rock and roll music. The message criticizes the twentieth century physical environment, with its tyrannical architecture designed to stifle any creative thought and which can never hope to be combined with great western ideas and institutions to produce a twentieth century Haydn, or Gluck. The message points out that Western men must change their contemporary ideals and environment and until this is done, Music Inc. gangsters, the so-called cultural elite of today will continue to promote cultural misfits like Stravinsky, Shostakovich and Nigel Kennedy.

Message no. 10 informs people of the hidden Kosher surtax on grocery items which will be an eye opener for them. The message tells them to inspect grocery items and they will find tiny symbols on the grocery items, such as a small K in a circle or a tiny U in a circle on the labels. These hidden cryptic symbols indicate that the product is kosher and fit for consumption under Jewish dietary law. These symbols can only be given by a Rabbi who inspects and supervises the means of production and charges a substantial fee which adds to the cost of the product which cost is passed onto the consumer. The message points out that the Jewish population in Canada is less than two percent of the total population and a small percentage of that population are Orthodox Jews and questions why should others have to pay for this insignificant minority's dietary practices. If it is important to Orthodox Jews, why don't the Rabbinical organizations perform their services for free and the answer given is that this generates a great deal of revenue, hundreds of millions of dollars in the U.S., which the Rabbinical organizations are not likely to turn down. That is why kosher symbols are found on not just food products but also cleaning products such as laundry detergent, dish washing soaps, etc.. The message provides telephone numbers of various Orthodox Jewish Councils, both in the United States and Canada, and urges callers if they have questions, to call named Rabbis, who, the message states will be happy to hear from you and are waiting for your call. The message concludes by saying don't be mislead by slick talkers, ask the hard to answer questions about cash. Remember you do not have to pay for anyone else's religion.

Question no. 11, the Hollywood Name Changers, declares Hollywood the entertainment capital of the America's and the world and Hollywood fiction is the name of the game and also the game of the name. The message lists a number of actors who have changed their names and whose original names sound Jewish. The message also contains a list of names of actors and other entertainment personalities whose names do not sound Jewish, who have not changed their names and asks the question why is there a heavy concentration of name changers involved in the movie industry, do they have something to hide? The message invites the listener to check out message no. 12 entitled, the "Masters of Hollywood."

Message no. 12, The Masters of Hollywood, states that the television and movie industries influence millions of people and shape the fabric of our society and points that this would be a very powerful tool in the hands of a special interest group. The message asserts that today television and movies contain themes which promote homosexuality, drugs, pornography, race mixing and a baseless promotion of guilt about white history. The message asks whether there is a special interest group that controls and manipulates the television and movie industry to promote these themes and then goes on to name the "Masters of Hollywood", who by their names all appear to be Jewish. The message asks the question who controls the entertainment industry today and answers the question by referring to a 1974 edition of the Jewish Post and Opinion which observed that Jews dominate Hollywood today as they did in the past.

(ii) The January Transcript

This Transcript contains four messages:

Message 1 - Statement from Janice Long, Wife of Terry Long, Canadian Leader of the Church of Jesus Christ Christian Aryan Nations.

Message 2 - Statement from Jack Van Tongren, Leader of the Australian National Movement.

Message 3 - Revelations from The Auschwitz Death Books.

Message 4 - "Brown Nation Youth Gang in Calgary".

Message no. 1 is a message from Janice Long, wife of Terry Long, the Canadian leader of the Church of Jesus Christ Christian Aryan Nations. It describes the R.C.M.P. invasion of the Long family home in 1991 looking for her husband Terry Long because he did not re-attend as a witness in a recent Alberta Human Rights Commission Inquiry into a cross burning and how the police terrorized her and other members of the Long family. After giving an account of this incident, Ms. Long refers to the Jewish Defence League in Calgary and how it is collaborating with the authorities to file contempt charges against Terry Long. She concludes her message by referring to the fact that Revenue Canada has detained more cassette tapes from the Church of Jesus Christ in Haydn Lake, Idaho, thus preventing them from hearing the sermons. As she puts it, this proves clearly how worried the Esauedomites are and how tightly they are pulling the strings in their puppet show.

Message no. 2 is from Jack Van Tongren, leader of the Australian National Movement. He tells of how the ANM has been persecuted by the authorities in Australia and that he and many of the ANM leaders have been jailed without trial for their actions which include physically fighting against the "Asian invaders" and reducing Southeast Asian investments to near zero. He fingers the main enemies of Australia as being the Zionist-run traitors. The message describes with pride the sacrifices and heroism of the many major and minor figures in the ANM campaign and the heroism of a handful of Australian patriots physically fighting for the Australian people in the face of staggering odds to save the nation and the planet.

Message no. 3 is another history lesson, "Revelations from the Auschwitz Death Books." The Death Books are 46 bound volumes and contain a full page of information on each person who perished at Auschwitz. Apparently, they have been stored in the Central Soviet Archives in Moscow for the last forty years and were recently released. The message claims that the Death Books show that only seventy thousand died at Auschwitz, not the five hundred thousand claimed by Jewish sources. It also points out that the Books contain no mention of deaths by lethal gas.

The final message, Message no. 4 is presented as an excerpt from the Calgary Herald, November 30, 1991 about a gang calling itself Brown Nation which terrorized white students at various high schools in the Edmonton area. According to the newspaper report, the Brown Nation is made up of more than one hundred East Indian, Hispanic, Chinese, Black and Pakistani youths from aged fifteen to twenty-one. The gang members mark certain white people for violence and search out these people either while they are at school or waiting at bus stops or just walking around. The message notes that nothing has been said in the press or the media about this incident beyond Calgary because the newspapers are too busy writing about the German youth terrorizing foreigners in Germany and concludes by suggesting that perhaps what is required in Canada is not more third world immigrants but a couple of thousand boisterous young Germans to set matters straight.

(c) Response to the Allegations in the Complaints

(i) Answer of Box Holder 35683

As part of his investigation, Mr. Yamauchi wrote to Box 35683 asking for information about the CLN and their response to the allegations in the complaint. This is the box number referred to in Message no. 1 of the December Transcript.

On January 2, 1992, a document entitled "Answer of Box Holder 35683" with a covering letter addressed to Paul M. Leroux, the Director of the Commission Western Region, was hand-delivered to the Commission offices ("Answer").

The Answer stated that the messages are not that of the Box Holder but of others, do not engender hatred or contempt of anyone but rather express concern for the concentration of power and the democratic process. The effect of the messages is to issue warnings, and the opinions of the authors of the messages are fair comment on matters of public interest.

The Answer then deals with each message as follows:

The National Vanguard Message expresses a legitimate apprehension and concern for the cultural and racial survival of white people. It is not intended nor does it engender hatred or contempt of any group of people.

Tom Metzger's message is a sarcastic comment on the absence of free speech in Canada and not promotion of hatred or contempt of any minority group.

Fred Leuchter's message is an accurate and fair representation of the opinions and findings of an individual and has no racial or religious implications.

The message about Ernst Zundel is a factual report on matters of public interest and is no different than any other general media presentation of his conduct and affairs.

The Heritage Front message is a political opinion directed towards protecting and preserving the white race and culture and is a matter of public interest and is fair comment.

The message dealing with what the British learned after the decrypting is a matter of fact and opinion and fair comment and does not engender racial or religious hatred of anyone or expose any religion or group to contempt or ridicule.

The kosher tax message is a matter of fact and opinion and is fair comment. It expresses concern about the danger of imposing religious duties and taxes upon the public at large and is a matter of interest affecting all of the public.

The "music" message expresses an opinion appreciative and supportive of European music and is an opinion on a matter of public interest and should not be prohibited by any lawful limitation.

The "Hollywood Name Changers" is a statement true of facts. It is not directed specifically toward nor does it mention Jews or Jewish people. It is a comment upon the tendencies of persons to mask or hide their identity which is a legitimate matter of concern of public interest.

The message Masters of Hollywood does not mention nor is it directed toward any race or religion. It is a fair comment founded upon established facts and is a legitimate expression of concern and apprehension over the concentration of wealth and power in the hands of any group or minority.

The Answer concludes that the CLN is a legitimate form of expression protected under the Charter of Rights and Freedoms and the expressions of opinion do not affect nor are they directed against any person named in the Complaint.

(ii) identity of Box Holder

Mr. Yamauchi gave evidence that he wrote to Roberta Mruk, the Privacy Coordinator at Canada Post, and formally requested that Canada Post provide the name of Box Holder 35683. This information was provided in a letter dated January 21, 1992, from Roberta Mruk in which she stated that the name and address of the person holding Box 35683 is Cori Keating, no. 38 - 3280, no. 2 Road, Richmond, B.C., V7C 4T3.

Mr. Yamauchi also testified that, on January 13, 1992 and again on January 14, 1992, he personally went to 3576 West 36th Street, Vancouver, for the purpose of speaking to Mr. Peterson or someone associated with the CLN to get their response to the allegations in the Complaints. On the first occasion, no one was home and on the second occasion, he was told that Peterson was not available to talk to him. He left his card but never heard from Peterson.

(d) Evidence of Khaki and Elterman

Khaki called the CLN phone number on December 9 or 10, 1991 and listened to the messages. He testified that he was very disturbed by the messages and found the reference to sub-hukans ages to be historically inaccurate and other of the messages to be insulting to the Jewish community.

Khaki's interpretation of the messages was challenged on cross-examination and he was asked repeatedly to point to words or phrases or individual messages that would support his conclusion that he or any other racial or religious group was singled out for hatred or contempt. Khaki consistently maintained throughout his cross examination that he reacted to the messages as a whole and on that basis he found them racist and promoting hatred and contempt for racial and religious minorities.

Khaki also testified as to incidents which he believed were consequential from the messages. On December 12, 1991, an envelope was delivered to the CRJ offices which contained a piece of paper on which the following was hand written:

"C-Racial Justice:

Remember white people are a race, too!

English people have a right and duty to protect their heritage.

No-one should be forced to sit by while foreigners rape their culture!!!!

Multiculturalism equals genocide of English heritage.

Please think hard about what you are doing!!"

Mr. Khaki further testified that he was interviewed by the Vancouver Sun on December 18, 1991 concerning the CLN messages and shortly after that interview, he was told of cross burnings on the front lawns of Vancouver north shore homes owned by Iranians. Mr. Khaki also gave evidence that messages similar to the ones broadcast by the CLN have in recent years immediately preceded a rise in the level of these types of acts in the Vancouver area. It was his observation as President of the CRJ that when messages such as these or other publications comment adversely on immigration or other activities of non-whites, there is a manifestation of racial hatred and discrimination.

Elterman listened to the CLN messages in December, 1991, and he testified that he was very angry and frustrated by what he heard.

His evidence was that the messages must be considered as a whole and throughout the messages there is the systematic implication of a conspiracy by Jews to cheat and deceive the Christian world.

Elterman's reaction was tested on cross-examination and he was questioned as whether his reaction was based on his sensitivity as a Jew. Could it not be said that the messages were an objective questioning or criticism on matters suitable for public debate? On this point, Elterman was questioned at great length and asked to point out specifically where the messages state his position, that Jews are out to deceive and cheat others.

Elterman agreed that there is no explicit wording in the messages to this effect but it is implicit in the messages as a whole. He referred as examples to the Hollywood Name Changers, the Kosher Tax and the Holocaust messages. Why list names which are predominantly Jewish sounding but which have been changed and why compare them to the list of names which have not been changed and do not sound Jewish, if not to show deception by Jews?

Elterman did not agree that the Kosher Tax message is designed to make people aware of the extra cost and to encourage them to purchase the non-kosher products. The implication of this message is that the Christian world is being manipulated into financially supporting religious organizations.

Elterman agreed that the matter of the Holocaust is open to discussion and debate and if, for example, the messages had said that it was not possible for those number of persons to have died at Auschwitz and had left it at that, it would have been within the realm of public debate. But when the message takes the next step and states that it is laughable or ludicrous to accept the numbers of person who were killed in the gas chambers, combined with the messages on the kosher tax and Hollywood messages, that goes beyond legitimate public debate and becomes a matter of holding of Jews to hatred and contempt.

Elterman was interviewed in the Vancouver Sun at the same as Khaki. Shortly after the newspaper article somebody dumped a litre of blood or bloodlike substance on the steps of Elterman's office. He had never experienced an incident of this type before and he called the police who took the details and said they would look into it, but he heard nothing further.

(e) Evidence of Gordon Thomson and Rabbi Mordeccai Feuerstein

Gordon Thomson ("Thomson"), who is also known by his Hebrew name, Yoseph Thomson, is the administrator of the Orthodox Rabbinical Council of British Columbia. The Council is responsible for the religious and administrative duties of the orthodox Jewish community and for kosher food certification in British Columbia. Kosher certification applies primarily to three areas, Orthodox Jewish institutions, business which provide facilities for social events and the manufacturing of kosher food within British Columbia.

Thomson testified that it is the manufacturers who request certification and do so because it serves their marketing and sales objectives. The Council does not solicit companies for kosher certification.

According to Thomson, the statistics are that thirty-three percent of kosher food is sold to the Jewish market, another thirty-three per cent is incidental sales and the balance to other religious communities such as Muslims, Sikhs and Seventh Day Adventists.

The council is a non-profit organization and the fees charged for certification are on a cost recovery basis. The fees vary from company to company depending on the nature and complexity of the manufacturing process. The average annual fee is $1,000.00 and for the fiscal year 1991, the certification fees received from manufacturers amounted to approximately $35,000.00.

Thomson explained the reason why it is necessary to certify non kosher food products such as cleaners or laundry detergent or food wraps. It is because these items may be used to store food or clean food containers or clean areas where the food is prepared and if the cleaning products contained ingredients that were non-kosher, it would render non-kosher any food that came into contact with these containers or areas. The same is true of food wraps.

Thomson explained that the kosher symbols on food products are of a size and nature to indicate that the product was certified as kosher but it is the manufacturer's decision how and where the kosher symbol is shown. The manufacturer's preference is that the kosher symbol be one that is recognized by the Orthodox community, something that is clear, simple to understand and that does not take up a large part of the label.

Thomson agreed that the cost of kosher certification is passed onto consumers, but this is no different than passing on the cost of any other type of advertising. His view is that manufacturers ask for certification because it gives them access to a particular market. It is no different for example, from manufacturers who pay a fee to be certified to obtain an organic food product certification. There are no religious practises involved in the certification of non-Jewish companies and the fees charged do not go to any religious organization other than the Council to pay for the costs incurred. The Council has never refused kosher certification because a person or manufacturer could not pay the fee and would not refuse a request for certification because of inability to pay.

Thomson also testified as to certain phone calls made to the Council offices and to his telephone pager. On January 9, 1992, the following messages was left on the Council answering machine:

"Kosher sucks. Why should white Americans pay for your fucking religions, huh? What do you guys think about that. You guys are all in cahoots together to destroy this fucking world we live in. You guys are anti-Christ. That is you religion. We read the Talmud. And the first, in the old Testament. You're not fooling no one, we're here, you fucking bastards. White power. Aryan victory, you fucking Jew mother-fuckers."

On January 14, 1992, two messages were left on the answering machine, one which, according to Thomson, sounded like gunshots; the other sounded like someone in severe pain or dying.

On January 31, 1992, Thomson receive a phone call on his pager. The message was from a voice he did not recognize and consisted of one word "Gone". He received two more calls that day, one he deleted by error and the other was:

God it makes me sick every time I go past the place, I want to throw up. It's absolutely revolting. I can't stand it."

According to Thomson, prior to the messages, the Rabbinical Council had never received any unusual or strange calls.

Both the Council phone number 275-0042 and the pager number 667-0375 appear at the end of the "kosher tax" message. As well, the Council phone number did appear in the "Kosher Supplement" to the Jewish Western Bulletin edition of August 29, 1991 which is usually mailed to the Jewish community and which may be available to the general public, but Mr. Thomson has never seen it on newsstands.

Rabbi Feuerstein is the Orthodox Jewish Rabbi of the Congregation Schara Tzedeck in Vancouver and has been the Rabbi of that Congregation since 1984.

Rabbi Feuerstein obtained his B.A. in History in 1969 from Harvard University, his religious training from Yeshiva University, New York and was ordained in 1973 and an M.A. in Jewish history from Harvard in 1978. He has completed two years of study for a Ph.d.

His doctoral topic is Nahamanides, a thirteenth century figure in Spain who was a leading disputant in Christian-Jewish relations in the Middle Ages on issues such as kosher, alleged anti-social activities of the Jews and the demonic conception of the Jew. In his undergraduate degree, Rabbi Feuerstein focused on Jewish history and anti-Semitic behaviour, beliefs and messages.

At Yeshiva University, his religious studies included much of Jewish history dealing with issues of money lending and other prescribed Jewish economic activity, and kosherization as an anti-social and anti-assimilation activity.

From 1980-1983, he was at the Hebrew University in Jerusalem. While on a fellowship, he studied under Jacob Katz, one of the leading authorities in the world on anti-Semitism and with other scholars in medieval anti-Semitism.

In our view, Rabbi Feuerstein is qualified to comment on the themes expressed in some of the messages.

For Rabbi Feuerstein, certain of the messages imply a conspiracy by the Jews to create and maintain a hoax. In Rabbi Feuerstein's opinion, these are classical themes. Jewish dietary laws and kosher have been the subject of anti-Semitic communications many times in the past. Basically, it was viewed as a sign of separateness, a refusal by the Jews to participate fully in society. It was considered to be an anti-social and therefore an anti-Christian mode of behaviour and was criticized. In certain medieval periods, there were papal bulls forbidding Christians to buy food from Jews just as the Jews would not eat the food of Christians, elevating this into a kind of war of religions. In the 18th century debate over the acceptance of Jews for citizenship in European countries, again the kosher laws came up as a reason to keep Jews out because in the practice of these laws, Jews maintained their separateness and did damage to the society.

The "Masters of Hollywood" raises the question of the media and the Jews' control of the media. This is a continuation of a very painful canard against the Jews going back to the "Protocols of the Elders of Zion" which was first disseminated in the 1890's and spread in the 1920's after the Russian revolution. According to Rabbi Feuerstein, the Protocols were a forgery by the Russian secret police. The Protocols allegedly were a blue print for the Jews to take control of the World by taking control of the media and commerce and subverting the society. This notion was promoted by Hitler who argued that the Jews in Germany had secretly manipulated the media and the German economy. So too do the "Masters of Hollywood" put forward that the Jews are in control of the media and have used this control to subvert society by promoting pornography, drugs and homosexuality, race mixing and guilt about white history.

Rabbi Feuerstein was cross-examined at some length particularly on the view of the Leuchter Holocaust messages. He did not agree with the suggestion that these messages are statements of fact and the purpose of the message is to put these facts into public debate, that there were no gas chambers at Dachau, Buchenwald and Auschwitz. He did not agree because the facts stated in the message do not lead to this conclusion.

According to Rabbi Feuerstein, the result of disseminating this information is to imply that those who say the gas chambers did exist and assert the facts of the Holocaust are liars who have been perpetrating a hoax. This is an allegation which imputes perversity to the Jews and brings into contempt those who would dare say that they lost their families or their friends when all along they were fooling us. Jews, thus are the ultimate hucksters who would use the death of family and friends to achieve something, the motive of which is unclear.

(f) Evidence of Bart Testa

(i) admissibility

Bart Testa ("Testa") was called by the Commission as an expert in semiotics. Semiotics is the study of communications and involves an analysis of messages as they are constructed using sign systems in order to communicate, which systems include words, gestures, images, sound and media. As a semiotician, Testa's task is to understand the means and media of communication and the context in which it occurs.

The Commission proposed that Testa give expert evidence by way of a "content analysis" of the messages in the December and January Transcripts. This involves an analysis of the messages taken together, and offering an opinion that the messages are likely to be received and interpreted in a particular way. As Testa explained it, the content of the messages and the format in which they are arranged is such that they can be interpreted as likely having a particular effect, namely exposing persons to hatred and contempt. In his analysis, Testa did not purport nor did he claim as within his expertise, to say what effect the messages actually would have on someone listening to them.

Testa is a Senior Tutor (Assistant Professor) at Innis College, University of Toronto. He obtained a B.A. in 1971 from Manhattan College, N.Y.; a M. Theology at St. Michael's College, University of Toronto in 1973; an M.A. at New York University in 1975 in Cinema Studies; and entered a Ph.D. program in theology at St. Michael's College in 1975 and left in 1979. He began teaching at Innis College in 1980.

According to Testa, the study of semiotics was founded in 1915 by the Swiss scholar, Fernand de Saussure and has become a very important science in the study of communications. Those involved in semiotics come from a variety of backgrounds and disciplines; some are initially trained in biology or literature or theology or linguistics. Semiotics, says Testa, generates its own expertise or specialization and is not the same as linguistics.

Mr. Testa pointed out that there are departments of Semiotics at various universities including the University of Indiana, Brown University and Chairs of Semiotics within the French university system, one being held by Roland Barthes until his death in the 1980's. Other scholars who have written in the area of semiotics are Roslin Krauss, Georges Botaille, Michelle Foucault, Claude Levi-Strauss, Christian Metz, Jean Boudrilland, Irwin Ponesky, Leo Steinberg, Raymond Bellour and perhaps the most well known, Umberto Eco, who not only authored "The Name of the Rose" but also the "Theory of Semiotics" in 1979.

Mr. Testa stated that he began studying semiotics in 1973 in his M.A. program and has worked in semiotics since then. He took four courses in semiotics in this program, and also took courses in linguistic analysis and studied texts by Saussure, Levi-Strauss and Barthes. Mr. Testa pointed out that his M.A. in Cinema Studies involved the analysis of film communications and the theory of communications. In this context, the theory of semiotics was examined in its application to film.

Mr. Testa has been teaching courses in semiotics since 1984, including "The Semiotics of Visual Art" and "Semiotics II: Post Structuralism" at the University of Toronto. Some of the texts used in these courses are by those authors listed above.

Mr. Testa is on the editorial board of the Toronto Semiotic Circle Monograph, an academic group who study and discuss semiotics. The monograph series is a result of the activities of this group. He has published in scholarly journals such as the Canadian Journal of Political and Social Theory and the Canadian Journal of Film Studies. He has contributed articles to two books, the articles being a semiotic analysis of the use of sound and image together and the use of language in a television documentary; and a semiotic analysis of a series of articles on new religious groups written in the "new journalism" style. Mr. Testa was the Panel Leader on the "Semiotics, The State of the Art" session at the Sixth International Summer Institute for Semiotic and Structural Studies colloquium at the University of Toronto in 1984. He is a reader for the Journal of Canadian Studies and reviews for publication in this Journal articles dealing with film scholarship and semiotics.

Mr. Christie, Counsel for the CLN vigorously opposed the admissibility of Testa's expert opinion. The 104 pages of transcript of cross examination on this issue is testimony to this. His position was that Testa should not be qualified as an expert because the field of semiotics is not a recognized field or area of expertise; and if it is, Testa is not an expert in this field; and if he is, his evidence is not relevant or helpful to the issues before the Tribunal.

In his submissions on this issue, Mr. Finlay, Commission Counsel, provided two bases for admissibility. First, section 50(2) of the CHRA permits the Tribunal to accept any evidence it sees fit whether or not admissible in a court of law. In his submission, if we determine that Mr. Testa's opinion might be of value to the Tribunal then his evidence should be admitted subject to whatever weight is appropriate. Mr. Finlay however, went further and referred us to the 1974 edition of Sopinka and Lederman, The Law of Evidence in Civil Cases which sets out the test a court would apply: (at p. 308)

"More recently, it has been said that the hallmark of admissibility simply should be whether the expert's testimony would be helpful to the tribunal. In R v. Fisher, [1961] O.W.N. 94 (C.A.) Ayleswath J.A. indicated the basic reasoning which runs through the authorities here and in England seems to be that expert opinion evidence will be admitted where it will be helpful to the jury in their deliberations and it will be excluded only where the jury can easily draw the inferences necessary without it..."

Mr. Finlay also referred us to a decision of the Tribunal in Nealy et al v. Johnson, Long, et al (1989) 10 C.H.R.R. D/6450 in which the Tribunal admitted the evidence of Dr. Jean Ravault who was qualified as an expert in communications theory including forms of communication and their impact upon those who receive them, as having the necessary expertise that might be of assistance to the Tribunal in dealing with complaint under section 13(1) of the CHRA.

Mr. Epstein, counsel for Khaki and Elterman, argued that Testa's education, training and experience in the field of communications clearly qualifies him an expert and he can provide an objective basis for analysis of the messages. Any concerns about the validity of his analysis or conclusions goes to weight and can be dealt with after he testifies.

Taking the contrary position, Mr. Christie argued that semiotics may be a field of study but it is not a recognized field of expertise. Mr. Testa has never been qualified as an expert in semiotics in any legal proceeding nor does he know of anyone who has. This Tribunal should not extend expert status to a new field of thinking or analysis unless there is a body of writing about it or there are examples of it being generally accepted as a field of expertise and some basis to empirically verify this evidence.

Further, he argued that the expert evidence of Mr. Testa is directed to and answers the very question that this Tribunal has to decide.

The question of determining the admissibility of "novel" scientific evidence derived from new principles or techniques has been a matter of considerable judicial and legal academic debate in the United States since the "Frye test", the standard for admissibility of such evidence, was first enunciated in Frye v. U.S. (293 F. 1013 (D.C. Cir. 1923)). The Frye or the "general acceptance test" as it is called is as follows:

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."

According to Sopinka and Lederman, (1992 edition), although this issue has not received the same attention in the Canadian courts, new techniques particularly in the criminal law area, have caused the courts to focus more on this question. Canadian courts have recently examined the admissibility of spectrographic voice analysis, footprint evidence, the testimony of polygraph operators and "D.N.A." fingerprinting. (see R v. Medvedew (1978) 43 C.C.C. (2d) 434 (Man. C.A.); R. v.Neilsen (1984), 16 C.C.C. (3d) 39; rev'd R. v. Stolar [1988], 1 S.C.R. 480; R v. Béland [1987] 2 S.C.R. 398; Phillion v. R [1978] 1 S.C.R. 18).

In Phillion and Béland, supra, both decisions of the Supreme Court of Canada, polygraph evidence was excluded on the basis of the traditional exclusionary rules; in Phillion because it contravened the rule against self-serving evidence; and in Béland because of the rule that a party can not bolster the credibility of its own witness. McIntyre J., writing for the majority, also stated that the question of credibility of the accused is well within the experiences of judges and for this reason, the evidence failed the "helpfulness test" for expert evidence.

The majority of the Supreme Court in these two cases did not address specifically the question of the admissibility of novel scientific evidence. Wilson J. however, dissenting on the applicability of the traditional exclusionary rules, did consider the question of new scientific evidence: (at p. 413 - 14)

"It is argued, however, by the Crown that polygraph evidence should not be admitted because it is not reliable to an acceptable standard. This is, of course, not consistent with the view of the minority of this Court in Phillion that there may be circumstances in which it would be appropriate to admit it. It is, in effect, a plea for the acceptance in Canada of the Frye test, initially applied in the United States (see Frye v. United States, 293 F. 1013 (1923) D.C. Cir) which has been considerably eroded by the Courts of that country. The general acceptance test in Frye has now given way in the United States to the "reasonable reliability" test. Mark McCormick, in his article "Scientific Evidence": Defining a New Approach to Admissibility, (1982) 67 Iowa L. Rev. 879, explains why, at 904:

The Courts that have moved away from Frye have obviously done so because of a perception that the standard is too rigid, somewhat unclear, and an unnecessary and undesirable barrier to the admissibility of scientific evidence in some situations. The effect of the departure from Frye has been a liberalization in the admission of scientific evidence. A discernable trend toward an expansive admissibility standard plainly exists.

Wilson, J. concluded that:

"Based on his analysis of the American cases modifying or rejecting Frye, McCormick concludes that the traditional test of relevancy and helpfulness provides a means for retaining the values of Frye without the cost of its disadvantages.

Having regard to the fact that it is completely open to the opposing party to cross examine the operator as to the weaknesses inherent in the process and to call an opposing expert to dispute the validity or interpretation of the results, I see no reason to exclude the evidence of the polygraph. It is, moreover, well within the purview of the judge to issue a caution to the jury not to give undue weight to polygraph evidence if he or she considers such a caution warranted."

In our opinion, although Wilson J. was speaking as a minority of the Court, it does represent the highest judicial consideration of this question for the moment.

If this is so, the test which we should apply is whether the proffered expert evidence is reliable, relevant and helpful. We take these words to mean scientific, technical or other specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue. The evidence must be based on more than subjective belief or speculation and certainly not be based on a theory solely generated for use in litigation. We were satisfied that Testa's evidence was reliable and relevant and did prove to be helpful to this Tribunal.

On the "ultimate issue" question, Sopinka and Lederman point out that:

"The majority of the Supreme Court of Canada in R v. Lupien [1970] S.C.R. 263, dismissed the proposition [the ultimate issue question] and held that a psychiatrist could testify on the very fact in issue which the court had to decide. Having gone that far, it is not surprising to see courts permitting experts to express their opinions in the context of the very words which comprise the legal definition which the court must apply. In fact, this appears to be occurring in practice if not in theory..." (at p. 541)

The authors, however, note that there are other examples where the courts appear to apply the ultimate issue doctrine. After referring to and discussing these cases, they conclude that:

"It is now generally said that if expert testimony is rejected, it is excluded, not because of any "ultimate issue" doctrine, but because such evidence is superfluous in that the Court can just as readily draw the necessary inference without any assistance from an expert." (at p. 546)

And, that let there be any doubt, the authors say, s. 40 of the draft Uniform Evidence Act 1982, makes it clear that opinion evidence on the ultimate issue should be admissible.

As to the question of whether Testa possesses the requisite education, experience and expertise to be qualified as an expert in this case, although it may not be readily apparent from his curriculum vitae, we are satisfied on the basis of his examination and cross-examination, that he does have the necessary qualifications to give the expert evidence he did. This conclusion is based on the evidence of his undergraduate and post graduate studies; the academic courses which he teaches; his scholarly publications and professional and academic activities, all of which are outlined earlier in this decision.

Finally, as to the argument that Testa's evidence has no objective verifiability and in effect, represents his own subjective interpretation of the messages, our response is, as Wilson, J. said in Béland, it is completely open to CLN's counsel to cross-examine the expert as to the weaknesses inherent in the process (which he did at great length) and to call an opposing expert to dispute the validity or the interpretation of the results.

(ii) Testa in chief and cross-examination

Mr. Testa listened to all of the messages and his analysis was based on the December and January transcripts.

In his analysis, he identified five message types according to their content:

(i) the self-reflective message - Message #1;

(ii) history lesson so designated in the message;

(iii) martyrology (which is designated the "Leadership Forum" by the messages) tells of the persecution of members of the Australian National Movement or the Church of Jesus Christ, Christian Aryan Nations;

(iv) cultural conspiracies (designated music, Hollywood Name Changers and Masters of Hollywood);

(v) kosher tax; and

(vi) the news story.

By "self-reflective" message, he means the message talks about the CLN itself and invites participation. The caller is asked to make a choice by the message itself; either the caller is offended by the free expression of European cultural and racial awareness, or wishes to learn more. If the caller chooses the latter position, the caller has in effect "agreed" to the free expression of European cultural and racial awareness.

In his analysis, Testa points out that the messages are thematically interconnected, either explicitly or implicitly, and although the succession of messages is random in that the caller can select the order of listening, their contents form a mutually self-supporting context. In this way, the messages focus attention, heighten receptivity and solicit an active engagement of the caller that arises from the caller's acceptance of the purpose "to promote cultural and racial awareness amongst white people."

The first history lesson Message no. 2 from the National Alliance and Vanguard Books offers the hypothesis that thousands of years ago, the first true men separated themselves from the "sub-men" and established civilization.

Mr. Testa offered the opinion that although the lower races are not sub-men, they are like sub-men and are "streaming in unaccounted numbers across our open borders" suggests that the problem for white people is immigration in large numbers of people who are non-white and they represent an aggressive threat to white civilization. Because they are lower races, they hate us, and they are encouraged to "dispossess" us. The message also introduces the idea of a manipulative, alien controlled media. In insisting on the decision to preserve civilization belongs to present day white people, the message seems to call for a modern separation parallel to the historic one.

In Testa's opinion, this message is a blanket attack on immigration and its contempt for non-whites is clear. In addition, the broad content of this message creates an interpretative context for further messages which warn of specific dangers and expose specific manipulations of the media, government and culture.

Testa's analysis of Message no. 3 from Tom Metzger of W.A.R., White Aryan Resistance, shows that this message picks up two themes from Message no. 2 and particularizes them. Metzger attacks immigrants to Canada terming them "swarms of wretched refuge". The second theme is a criticism of the repression of free speech in Canada done by using "beeps" (censoring words in the message) made by his own voice. This carries forward the idea from the previous message that the truth is being repressed by the alien masters who have closed off the media (including the CLN) from free speech. These "masters" who Mr. Testa claims are made objects of contempt and hatred, have specific identities but these are "beeped". This media theme is developed later in other messages and the identities are filled in.

The first Fred Leuchter message describes his own martyrology. His investigations, as an "expert witness on execution technology", concerning the gas chambers at Auschwitz in 1988, have made him the subject of an "international conspiracy" that has led to his systematic persecution. The Zundel message is another martyrology, his recent victimization at the hands of a German judge for his "Holocaust doubting material."

Leuchter's other two messages detail his evidence that the Holocaust never happened. His first argument, based on what he claims are his own investigations, is that the gas chambers did not have the capacity for mass death and this makes the Holocaust "the greatest propaganda ploy in history". His second argument is derived from historical documents (wartime German cyphers intercepted by the British) that he says did not enumerate deaths from gassing at concentration camps, from which he concludes "there were no gas chambers at Dachau, Buchenwald and Auschwitz."

Mr. Testa argues that these messages carry three strong connotations, first, the messages are based on an authoritative source; secondly, those who stand up for the truth are subject to conspiracies and persecution; and third, the same alien powers who control the media are persecuting these truth seekers.

This same logic, which Testa calls the circular logic of implication guides the caller through the "hoax" of the Holocaust messages as well.

Mr. Testa gave as an example of this circular logic of implication in the messages, the Leuchter and Zundel messages which raise the "hoax" of the Holocaust. This hoax benefits someone and is confirmed when those who reveal the truth are persecuted by an on-going conspiracy, as is the case with Leuchter and Zundel. The implication is that the self-proclaimed victims of the Holocaust, the Jews, who are still offering exaggerated calculations of Jewish deaths in the concentration camps, contrary to the facts unearthed by the researchers/debunkers, subject these truth seekers to persecution and so must be the ones behind the conspiracy. This conclusion is not stated openly but left to the circular logic of implication. The notion of the hoax of the Holocaust repeats itself in the "Auschwitz Death Books" message. The Death Books the message claims, show that only 70,000 Jews were killed at Auschwitz, not 500,000 Jews as claimed by Jewish sources.

The Heritage Front message is another history lesson which focuses nationally by retelling the story of Canada. This message points out that Canada was settled by Europeans, but since 1967, the "floodgates" were opened "to massive numbers of aliens" who bring crime, corruption and violence to Canada and "threaten cultural genocide." The message does not condemn the immigrants themselves, but rather the politicians, law makers, media and big business who form an unintelligible conspiracy for their own peculiar reasons. Later messages will identify this group.

Janice Long's testimony is another martyrology concerning an alleged invasion of RCMP officers into the Long family home in September, 1991. Her tale of persecution picks up and emphasizes Metzger's message, that politicians in power stamp out freedom of speech. She also associates them with Jews as enemies in a vaguely claimed alliance with government forces.

The message from Jack Van Tongren, the ANM leader, is another martyrology about his persecution by authorities in Australia in the ANM's "fight for its own kind" against South East Asian Investments into Western Australia and the "Asian invaders". It also celebrates the victories and heroism of the ANM members in their battles with the Australian police and justice system.

The "Music" message, Mr. Testa explained, recalls the broad historical message, except the theme here is European culture. The question is asked why the great composers such as Handel, Wagner and the Strauss family, of the past seem removed from the 20th Century and what factors are responsible for purging the West of any worthwhile composers. The idea of a "purge" is that somebody has actively eliminated this music and the reason behind the purge is that the "true European expression" has surrendered to "alien trends". The message then shifts to architecture to argue that the physical environment resulting from modern architecture which has been foisted on society stifles creative thought. It is the Music Inc. gangsters, the so-called cultural elite of today, who now control our cultural life and who are responsible for these "alien trends" in our modern music.

Hollywood Name Changers again raises, without specifically referring to Jews, the deceitfulness of Jews for why else would they change their names. Masters of Hollywood states the thesis that the media influence and shape society and in the ways they do because the media are controlled by a conspiracy. Having set up the thesis that the media are powerful and would be a powerful tool in the hands of a special interest group, essentially promoting things that threaten the cultural, moral, and racial foundations of white European society, the question of who really are the "masters of the media" gains real urgency. The next portion of the message answers that question, the Jews. Testa concludes that these two messages combined make the mass media appear as a Jewish conspiracy that has already put its anti-white and morally destructive agenda into operation. This association of Jews puts a clearly named religious group to the many references of media domination and manipulation by "alien forces" that occur in other of the messages.

The "kosher tax" message makes two express objections, it violates freedom of religion; and the money is a tax imposed to profit a religious organization. The message also warns people not to be fooled by slick talkers. The listing of the phone numbers of named rabbis and Jewish organizations, Mr. Testa argues, is sarcastic and the purpose is to cause harassment under the guise of asking questions.

This message embedded among the other messages concerning mass media seems to both support and extend the concept of a Jewish conspiracy that has made a victim of the non-Jewish majority.

Finally, there is the news story from the Calgary Herald of the Brown Nation terrorizing white high school students. The message claims that the story is not widely known because "the papers are too busy writing about German youths, terrorizing foreigners in Germany.

Testa sees this message as bringing into the open the logic of implication used in the other messages. The truth of what is happening, namely the destruction of our way of life at the hands of alien invaders, is being suppressed by juridical persecution and media conspiracy. The only answer is activism backed by the power of countering violence. Even more expressly than the messages analyzed earlier which have implied conspiracies of aliens to destroy our way of life and to persecute those who witness to the truth, this news story explicitly names the "aliens" by race and nation, accuses them of direct terrorism against whites and the media of suppressing the news and fantasizes revenge to be carried out by imported German youths.

Mr. Testa concluded that his content analysis shows two ways in which the messages may expose ethnic or racial or religious groups to hatred and contempt. First, there are accusations that certain groups are destroying the fabric of white society and culture through their very presence within our society and this truth is being deliberately hidden by a conspiracy of other groups, mainly Jews who control political life and mass media. These explicit messages are seen in the analysis of Messages no. 2 and no. 10 and portions of the December Transcript and Messages no. 2 and no. 4 of the January Transcript. The less explicit messages which are tied together by the logic of implication work by first deploring a situation in some messages, for example, lax immigration laws, the invasion of the Long home by police, the persecution of the debunkers of the Holocaust and then asking who benefits from this, who has the power to create and maintain such a deplorable situation. The answer is given in other messages by naming groups, again mainly Jews, who possess inordinate control over political power and the media.

The less explicit messages do not generally blame "non-European" immigrants with malicious intentions, (except for the Brown Nation) yet still treat the modern "sub-men" as passively a great danger to white society. Yet despite this, these blameless non-Europeans are hardly immune from contempt. The messages in his opinion pointedly attribute the blame for the destructive presence of these groups in white society on a powerful ethnic and religious group, the Jews, which, in his opinion is likely to expose Jews to hatred and contempt.

Mr. Testa was cross-examined at great length on his opinion. Having listened to the cross-examination in its entirety, we can say that every relevant question that could have been asked of Mr. Testa with respect to his opinion and conclusions was asked, sometimes more than once.

He was challenged as to why the messages would not likely cause dislike or apprehension, suspicion or fear as opposed to hatred and contempt. His response was that the messages point out today's immigrants are non-whites and are not Europeans, bear no resemblance to our founding fathers; bring poverty, crime and corruption to our society. Even though they do not intend to destroy our society, that's the kind of people they are. There is good reason not just to dislike them or be suspicious of them but to be contemptuous of them. When one is described as human refuge or a threat to the very substance of civilization that person is held up for contempt and nothing so mild as apprehension or suspicion or dislike would be appropriate.

Testa did agree that if messages amounted to fair criticism, then they would not likely expose to hatred and contempt. But fair criticism does not refer to people as human refuge or the rising tide of the lower races or sub-men. Fair criticism does not expose the object to criticism on the basis of race, religion, national origin, sexual orientation and the messages do precisely that.

Nor would Testa concede that the messages constitute fair criticism because they are critical of deception as opposed to a reference to ethnic identity, or are critical of the monopoly or concentration of power in the media. Testa argues that it's not the deception or the monopoly of power that is being condemned, rather it is Jews who are condemned.

He would agree that the concentration of power in the media is something to be wary of, and to criticize a group of people for having a monopoly of power is within the realm of criticism. But the messages do not say that a certain group has control over the media because they are intelligent or ambitious or greedy, but rather because they are Jews. Jewishness and the monopoly of power as stated in the messages, is being used for catastrophic results, the flood of human refuse, cultural genocide, destruction of white society. And why would anyone use their power for such perverse purposes, why bring down the culture and the civilization. The answer is because they are Jews, because of their alienness. Jews are aliens, they do not share our civilization, our culture, our values.

The distinction is that these messages attribute these acts to the very nature of a certain group, namely the Jews. By declaring that their power is perverse, their purpose is perverse, they are perverse and they are Jews. Jews are thus exposed to hatred or contempt.

Testa would apply the same reasoning to the martyrology messages. These messages may be a criticism of the suppression of free speech, or an accusation of police intrusion into the privacy of one's home. But they are also accusations of the persecution of the innocent. These messages point out as do the other messages that those who suppress the truth, those who persecute, those who manipulate, those who have a monopoly of power are identified as having one shared attribute, they are Jews.

It is our opinion that the messages when considered as a whole can not be characterized as being a legitimate expression of opinion on matters of public interest or debate. We consider the messages to go well beyond criticism or debate. We accept Testa's conclusions on the interpretation to be given to the messages.

In coming to this conclusion, we have also relied on the evidence of Thomson, Elterman and Feuerstein. In doing so, we are well aware that these witnesses testified in support of the complaints. But it is not so much the substance of their evidence, but rather the questions that their evidence raised for the Tribunal on the issue of legitimate criticism that we have focused on.

Thomson's evidence on the kosher certification made it clear that at least in British Columbia, requests for certification are initiated by manufacturers, the fees are not excessive and kosher products are used beyond the orthodox Jewish community.

If the kosher tax message was truly directed towards legitimate public debate why would not the maker of the message seek to confirm his version of the facts? After all, Thomson's telephone number was known, it was listed in the message. Why is the message couched in terms of hidden cryptic symbols, consumers being hoodwinked into supporting religious organizations, or warning to callers not to be misled by slick talkers.

Elterman raised the question as to why name changing is a matter for public debate. He also pointed out that many people change their names and posed the question as to why the message listed primarily Jewish sounding names. He also questioned the reason for grouping the Holocaust messages with the cultural messages, with the kosher tax. Is it because the common thread is Jews and the fact that Jews are out to deceive and cheat others.

Rabbi Feuerstein pointed out that internal logic in certain of the Holocaust messages does not support the conclusions of the messages, which conclusions suggest a hoax perpetrated by Jews on non-Jews.

It is this evidence together with the evidence of Mr. Testa that leads us to conclude that these messages can not be characterized as being fair comment or raising this subject matter for public debate.

The questions that now remain to be answered are:

(i) whether there is a person or group of persons acting in concert to communicate telephonically;

(ii) by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament;

(iii) any matter that is likely to expose an identifiable person or group to hatred or contempt.

[...]

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