Toronto, Ontario

--- Upon resuming on Wednesday, June 10, 1998

at 10:10 a.m.

THE CHAIRPERSON: Good morning.

MS ZAYID: Good morning.

I am sorry to report that we were not able to secure Mr. Angus' attendance this morning. I also want to let you know that we did try to see whether we could meet with Mr. Angus or do other things to prepare ourselves so that we would be in a position to proceed with Mr. Klatt's evidence. Unfortunately, that was not possible either, so I am in the position of renewing our request that Mr. Klatt's evidence be put over until tomorrow so that we could have Mr. Angus present.

THE CHAIRPERSON: Thank you. Any comments, Mr. Christie?

MR. CHRISTIE: I don't know how likely it would be that, were we to ask for the deferment of an expert of the Commission, we could insist that one of our experts be there, but that's the way the cookie crumbles. If that is what you feel is appropriate, so be it. It is very expensive to keep someone here and delay the proceedings and make sure that we are entirely burdened with the cost of continuing. That is something that we find difficult, but that is our position.

THE CHAIRPERSON: With some reluctance, it is important from the Commission's point of view and other interested parties that they have their expert here to hear the evidence. This Tribunal is here to hear evidence, so I believe that we have to reluctantly conclude. Unless you have some other evidence to present today, we will have to adjourn until tomorrow.

MR. CHRISTIE: Unfortunately, the other evidence requires an interpreter and the interpreter cannot be available until Thursday. That is our position.

There is nothing else we can add. There is no other witness that we can produce at the moment besides Mr. Klatt who is sitting and waiting.

THE CHAIRPERSON: There are unpredictabilities in connection with the flow of evidence from time to time, and this appears to be one of them.

Ms Zayid, please.

MS ZAYID: I just want to make clear that we would not have made this request had we had previous notice that Mr. Klatt was to be called. We did not receive anything regarding Mr. Klatt until yesterday morning. Otherwise, we certainly would not have put the Tribunal in this position.

THE CHAIRPERSON: We will leave it at that and adjourn until tomorrow morning.

MR. CHRISTIE: There is one other matter, if I may.

THE CHAIRPERSON: Yes.

ARGUMENT ON BEHALF OF THE RESPONDENT

MR. CHRISTIE: At the outset of these proceedings I raised the issue of whether any Member would feel that they were in a conflict of interest, and I wanted to raise the question which I think you directed could not be raised or could not be answered.

Since that time, as a matter of fact today, it became clear that we have some reason to be concerned, and this pertains to Member Devins.

I have just given to the Clerk a copy of the biography of Member Devins and a press release from the Human Rights Commission of Ontario.

Our information indicates that on the 13th of May, 1988 -- and copies of this have been given to the parties. On May 13, 1988, the Ontario Human Rights Commission issued a press statement and it said:

"The Ontario Human Rights Commission commends the recent curt ruling that found Ernst Zundel guilty of publishing false statements denying the Holocaust.

'This decision lays to rest, once and for all, the position that is resurrected from time to time that the Holocaust did not happen and is, in fact, a hoax,' said Chief Commissioner, Raj Anand. 'We applaud the jury's decision since it calls for sanctions against a man responsible for contradicting the truth of the suffering experienced by the Jewish people, which was visited upon them solely because of their religion and ethnicity.'

Mr. Anand also stated that the decision is of broader significance in that it affirms not only the rights of Jews, but also of other religious and ethnocultural groups to be free from the dissemination of false information that maligns them."

Our position is that this is a joint statement. Our research indicates that this statement was issued on behalf of the Ontario Human Rights Commission and is, in our view, the joint responsibility of the Commissioners, being the title given to members of that Commission.

Our investigation has determined that this statement was issued regarding Ernst Zundel and the subject of the Holocaust, whether it can, in fact, be challenged or not. It is, in our view, the same issue and the same person. Member Devins sat on that Commission and, as such, is responsible for the statement issued by the Commission.

In our view, the same determination is sought here by the Intervenants and the Canadian Human Rights Commission. The determination of whether or not it was possible to raise the issue of truth was addressed in the context of the subject of the Holocaust.

Our position is that this clearly indicates a reasonable apprehension of bias pertaining to the involvement of Member Devins and that the statements which are attributed to the Commission, of which she was then an active member, in our view, taints the involvement of her position in this Tribunal. Many of the issues which have been addressed so far are clearly indicative of the same subject matter that was addressed by this Commission statement.

In our view, this raises a serious question of the involvement of Members Devins, and our view is that it is a clear indication of prejudicial comments that affect the capacity of the Member to be viewed by anyone looking at this objectively as impartial on the subject that is the issue in dispute here.

Thank you.

THE CHAIRPERSON: Do any other counsel wish to speak?

MR. CHRISTIE: May I ask that, for the purposes of this submission, that the press release and the biography be included? I make the point that our investigation has determined that from 1987 to 1993 Ms Devins was a Commissioner of the Ontario Human Rights Commission, and that was the case during the period of this press release.

THE CHAIRPERSON: I am going to hear from other counsel first, unless you have something else to say, Mr. Christie.

MR. CHRISTIE: No, thank you.

THE CHAIRPERSON: Mr. Taylor, please.

MR. TAYLOR: Thank you, Mr. Chairman.

Initially, I am going to ask for a few minutes to discuss with the complainant counsel and the intervenors the position we would want to take. First of all, I want to point out that this material, as you see, was in the possession of the Respondent from May 13, 1988. The biography of Member Devins was available from the Tribunal office at any time since the appointment. To bring this up now is certainly away out of time.

I will ask for that time now, Mr. Chairman, to discuss with the complainant counsel and intervenors' counsel.

THE CHAIRPERSON: Do you want 15 minutes?

MR. TAYLOR: Yes, please.

MR. CHRISTIE: I have to make a correction, if I may.

If my friend is saying that we had the document from May 13, 1988, he is quite mistaken. The date and time is the date of issuance of the document. It is the 13th of May, 1988. That is when the document was issued. We got it today, this morning.

THE CHAIRPERSON: Thank you. We will adjourn for 15 minutes.

--- Short Recess at 10:20 a.m.

--- Upon resuming at 10:39 a.m.

THE CHAIRPERSON: Since we have adequate time today to deal with this matter, the Tribunal proposes now to adjourn until 2:00 p.m. at which time we will hear argument in this matter.

Thank you.

--- Luncheon Recess at 10:30 a.m.

--- Upon resuming at 2:15 p.m.

THE CHAIRPERSON: Mr. Freiman, you are back.

MR. FREIMAN: Like a bad penny.

Perhaps the easiest thing to do, in anticipation of my argument, would be to distribute some cases that might be of assistance to the Tribunal.

THE CHAIRPERSON: We have three cases here?

MR. FREIMAN: Correct, and I believe statutory material with regard to the Ontario Human Rights Commission which I hope the Registrar will distribute, if you don't have it yet.

ARGUMENT ON BEHALF OF THE CANADIAN

HUMAN RIGHTS COMMISSION

MR. FREIMAN: Let me tell you quickly where I intend to go. I may have been absent in body this morning, but I feel as though I were present in spirit, having heard an account of the argument.

In my submission, it is a very simple argument to respond to. I am going to go through four submissions.

The first is that the objection is raised at the wrong time -- and I will deal with issues, once again, of waiver which will be familiar to the Tribunal.

Second, the statements upon the basis of which it is intended to allege a reasonable apprehension of bias are not the statements of any person whose views can be imputed to the Member challenged in her private capacity.

Third, insofar as the content of the statement is concerned, the content deals with an entirely different issue from anything that is before this Tribunal for decision.

Lastly, even if, contrary to my submissions, the statements were attributable to the Member complained of and did have some connection with what is before the Tribunal, both of which I strongly deny, the statement itself is incapable of demonstrating bias in the sense that the cases have required -- that is, a statement that reasonable members of the community might regard as compromising that person's ability to make a judgment in this case.

Very briefly, on the issue of the wrong time I have not distributed any cases because this Tribunal doesn't need them. This is precisely the issue that this Tribunal was called upon to decide in April, namely, an allegation of bias. It makes no difference whether it is actual bias or systemic bias or institutional bias. In fact, perhaps the argument is even stronger with regard to actual bias.

It is clear from the cases that were reviewed before you that the time and the place for such objections is at the outset of the Hearings.

THE CHAIRPERSON: Where does knowledge come into it?

MR. FREIMAN: It is the opportunity for knowledge. If there was no opportunity for knowledge, if it was not capable of being discovered by reasonable inquiry, then perhaps there is an issue of postponing the time and not finding waiver.

In this case, the statement in issue was issued in 1988. It was available. The biography of the Member being challenged was available from the date that she was originally appointed in 1995. Everything was there.

It is not as though the issue of bias were something that was far from the mind of the Respondent. In fact, the Respondent, through counsel, has raised every possible allegation of manifestation of bias that human ingenuity can devise, from the beginning right through to April, right through to the argument last week, right through the argument after the release of your decision with regard to the scope of examination and cross-examination. He has never lost an opportunity to allege either institutional bias or, more recently, actual bias.

The time when the strongest attack with regard to bias took place, I would remind the Tribunal, was near the outset of the proceedings. At that point the issue that was raised and was clearly defined was bias on the basis that Members of the Tribunal might be affiliated with either the complainant institutions or with intervenor institutions. That was the bias that was pursued, nothing else. Since then bias has been pursued in myriad other ways, none of them faintly resembling what is being alleged today.

So I say the time is long past, and we cannot simply have occasion after occasion of new allegations that could, with any reasonable diligence, have been uncovered before. There is nothing new; there is nothing surprising; there is no cataclysmic event that brings these matters to the fore. They are just here, and that is just wrong. It's the wrong time.

THE CHAIRPERSON: The implication of that is that the consideration that this Tribunal and the parties to it and before it have invested weeks upon weeks of time and effort in connection with the presentation of this evidence.

MR. FREIMAN: Enormous time and effort. A further implication is that, since the matter has been raised in different manifestations on numerous occasions, Members of the Tribunal have had ample opportunity to search their consciences as to whether there is any possible source of bias, and it is clear that there isn't any.

The public expenditure, the late date -- it is impossible to tell because of the strategy being adopted by the Respondent, but one would conclude that we are somewhere near the end of the evidence. This is just the wrong place and the wrong time from the point of view of the public interest to raise such an issue. That alone is enough to dismiss the matter, and I remind the Tribunal of its decision with regard to the Bell case.

Next, looking at the statement and looking at the speaker, in what way does this impugn the Member complained of? As I understand it, the allegation is that, because the Member complained of was a Member of the Ontario Human Rights Commission, she is somehow implicated in a statement made by the Chief Commissioner, as he then was, of the Ontario Human Rights Commission.

It is perfectly reasonable to assume that a statement of the Chief Commissioner binds the Commission as an institution and reflects the institutional position of the Commission, but it is not a leap, it is a pole vault, to go from that to an inference that statements by the Chief Commissioner dealing with institutional attitudes somehow reflect the private views of persons who are Members of the Commission at that time. That is really what we are looking at.

The question that is going to be asked and that you have to decide is whether the statement made gives an indication of private views held by the Member which are likely to compromise her ability to deal in an impartial, objective fashion with the complaint before this Tribunal. There is no connection.

If you look at the quality of the statement -- and I will return to it in a moment -- it is clear that this is precisely the sort of statement that the Ontario Human Rights Commission is supposed to make. It is a vindication of the right of groups within society -- in this case, within Ontario -- to be free of behaviour that targets them, in this case criminal behaviour that targets them.

The Ontario Human Rights Code, which I have distributed, at section 29, provides:

"It is the function of the Commission,

(a) to forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law;"

It is, therefore, part of the institutional mandate to forward a policy that affirms dignity on the parts of individuals and of the groups to which they belong to be free of conduct that targets them.

The statement that is being alleged does no more than to vindicate, after a jury verdict, to draw the attention of the public to this reaffirmation of the right of individuals and the groups they belong to to be free of, in this case, criminal conduct that targets them.

If you look at paragraph (d) of section 29, there is a reference to the function of the Commission to develop and conduct programs of public information and education. I take this statement to be very much within that mandate to disseminate to the public information and education about the importance of the rights of individuals and groups to be free of conduct that targets them.

The point of that is that this is what you would expect the Human Rights Commission to do. This is their mandate. It is a statement not of private views that can be gleaned of the individual Members; it is a reaffirmation of the public duty and the public posture of the Ontario Human Rights Commission.

Certainly it has no logical connection and cannot logically be used as an index of private views and was never intended to be such. That is my second point.

My third point is that it is about a different issue entirely, in any event. The statement in 1988 was directed to a jury finding that Mr. Zundel had offended against the false news provisions of the Criminal Code. He was found guilty, and the jury recommended sanctions based on the finding of guilt. That is the context in which the statement was made, affirming the importance of the implication of a finding that an offence that targets individuals should be sanctioned.

THE CHAIRPERSON: Actually, the section was declared unconstitutional at a later date, so how does that bear on anything?

MR. FREIMAN: It doesn't bear on anything whatsoever. Perhaps the Human Rights Chief Commissioner might have issued a statement afterward regretting that the section was found unconstitutional, but the point being made in the statement was that at the time, based on the jury verdict, the satisfaction that the rights of groups to be free from criminal behaviour that targets them was affirmed. The subsequent redefinition of the offence or the re-examination of the offence, to find that it went too far in terms of values protected by the Canadian Charter of Rights and Freedoms, does not affect the underlying statement, which is only directed at a criminal offence in any event. That is the point.

The point is that we are dealing with a criminal offence. The comment is made about a criminal offence, the elements of which are totally dissimilar to the elements of the complaint that is before you. That surely is the index of whether anyone would find that there was any implication from that public statement, even if it were capable of reflecting or being reasonably construed as reflecting the private views of the Member.

It is useful to remind ourselves, by reference to the Court of Appeal judgment in Zundel 2 -- and this, of course, was issued after 1988, but I only use it in terms of its summary of what was argued and what was found. At page 164, the Court of Appeal reproduces the offence itself. It is salutary to read what the offence was:

"Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and is liable to imprisonment --"

You will note even from the language that two central elements, in fact the sine qua non of the offence, is wilful publication and, therefore, intent, and, second, a statement, tale or new that he knows is false and, therefore, truth and knowledge of truth is central to the offence.

In that case -- and I won't take you through it -- the Court goes through numerous arguments that were presented, especially about the issue of judicial notice of the Holocaust, based on the question of whether it was incumbent upon the prosecution to prove the falsity of the statements that were being complained about. The Court finds that, yes, of course, that is a central consideration to the jury's deliberation as to whether these statements are false and then whether the accused knew that they were false. That is what the whole case was about. That is what the Crown said it was going to prove and what the Court affirmed it had to prove. So truth is right out there front and centre and, therefore, the issue of the truth of Holocaust denial is central. It is the entire case.

When we turn to our case -- and I didn't replicate Taylor because you already have it. The Supreme Court of Canada has said that truth is not a defence, that it is not a relevant factor. That is what the Act says under section 13(1); that is what Taylor reaffirms, and that is what the decisions of the Canadian Human Rights Tribunal that we provided to you on the last occasion that the issue of truth arose have held as well. Truth is not a relevant issue and, therefore, this Tribunal has held, and has held quite properly, that issues tending to attempt to prove the truth of the statements in the material complained about are irrelevant and inadmissible.

So you have a complete dichotomy in terms of the issues that are addressed. In the statement we are dealing with questions of a criminal prosecution with a jury verdict of guilt involving centrally the truth or falsity of Holocaust denial. Before you we have a case, the constituents of which is whether the Respondent communicated or caused to be communicated telephonically statements that are likely to expose individuals to hatred and contempt based on a prohibited ground. You see that the elements of the complaint are entirely different and, most crucially, the truth or falsity of Holocaust denial, which is in fact the subject matter in part of the statement, are irrelevant.

So it is impossible to move from even an view on the one to any understanding of what is going to happen on the other.

It goes without saying --

THE CHAIRPERSON: The foundation of each is completely different.

MR. FREIMAN: Absolutely. There is nothing in common other than that the Defendant in one case is the Respondent in this case. But what is being alleged about the behaviour is totally different.

One is that he intentionally communicated false information, untruths. The other is that, regardless of intention, he communicated telephonically material that will have a certain effect. Matters that would be germane in the one are irrelevant in the other. So a comment about one, expressing satisfaction about that -- in fact, there is nothing even remotely objectionable about expressing satisfaction about a jury verdict, but you can't move from one to the other anyway.

Finally, even if we are to ignore all of that and take at face value the allegation that there is something about the statement that should be attributable to the Member complained about and that should be considered as potentially exposing some bias, some inability to deal with the matters in issue, if you look at the statement, you don't get anywhere with it.

First, let us remind ourselves of what the test is. The test was, as the Tribunal may recall, set out in Committee for Justice v. National Energy Board. Mr. Justice de Grandpré, although dissenting in the result, set out the test that was accepted by the Court and has been subsequently accepted as being the proper test for a quasi-judicial tribunal.

THE CHAIRPERSON: This is your third point, content?

MR. FREIMAN: This is my fourth point. The content was that the content of the one has to do with the content of the other.

THE CHAIRPERSON: Even if it is attributable.

MR. FREIMAN: Even if it is attributable.

The fourth is that, even if it is attributable and even if the content were capable of having some inference for this case or of being applicable to this case, the comment itself is incapable of raising a reasonable apprehension of bias, using the test articulated by the Supreme Court of Canada in two places.

The first place is Committee for Justice v. National Energy Board, the statement of Mr. Justice de Grandpré at page 735. This is under Roman number I. His lordship says:

"The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is 'what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly?'"

I stop there. It is not "would not hold an opinion;" it is "would not decide fairly."

"I can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonable suspicion of bias', or 'real likelihood of bias'. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the 'very sensitive or scrupulous conscience'."

We will be charged in a minute with examining the statement and asking whether a reasonable or right-minded person, looking at the matter realistically and practically, would conclude that the Member complained against would not decide the issue before her in a fair manner.

The other interesting quotation is quoted in a decision of the Ontario Court of Appeal, but it in fact appears in an interlocutory decision of the Supreme Court of Canada. I have given you the Ellis-Don Ltd. and Ontario Labour Relations Board case. My academic background tells me that I have to give credit to my sources. I thank Mr. Kurz for drawing the citation to my attention.

In this case Mr. Justice O'Driscoll is dealing again with an issue of a reasonable apprehension of bias, this time in front of the Labour Relations Board, a board whose quasi-judicial mandate is quite similar to that of this body. He relies on the following quotation by Chief Justice Laskin, as he then was, in one of the interlocutory motions in the Morgentaler matter. This is, ironically, a complaint against Mr. Justice de Grandpré, the author of the decision articulating what a reasonable apprehension of bias is.

I will read the entire quote because it is of some considerable interest.

"We have listened to submissions by counsel for the appellant --"

THE CHAIRPERSON: Where are you, please?

MR. FREIMAN: I am sorry, it is the part that is indented in lighter print on page 765.

THE CHAIRPERSON: Thank you.

MR. FREIMAN: The citation from Chief Justice Laskin reads:

"We have listened to submissions by counsel for the appellant challenging the propriety of one of our members, Mr. Justice de Grandpré, sitting on this appeal. Counsel for the appellant says that he does not attack the personal integrity of Mr. Justice de Grandpré or his objectivity, but he suggests that in view of the wide ranging debate going on in Canada on abortion Mr. Justice de Grandpré's attitude to this appeal could be influenced by reason of views expressed in a speech and comments made by

him --"

And I underline "made by him," because our case is even stronger.

"-- made by him during a joint meeting in April, 1973 of the quebec Branch of the Canadian Bar Association and of the Quebec Bar. Mr. Justice de Grandpré was then President of the Canadian Bar Association but he made it quite clear that he was expressing personal views.

This Court is not concerned in this appeal with the public debate on abortion. Its sole concern is with the exercise of its jurisdiction to hear this appeal on questions of law. This is prescribed by s. 618(2) of the Criminal Code under which the appeal has been brought."

He then goes on to cite the oath that Supreme Court justices take, which is not relevant in this matter. He goes on to say:

"All members of this Court, past and present, have, to a greater or lesser degree, before appointment to the Bench and to this Court, expressed views on questions which have legal connotations, and this has never been a disqualifying consideration.

We are all of the opinion that there is no impropriety in Mr. Justice de Grandpré taking his seat as a member of this Court in this appeal."

There could not, in my submission, be a stronger statement, recognizing the fact that impartiality does not mean absence of any opinions. Everyone has to have opinions. The issue is whether a person has manifested by conduct some demonstrable behaviour that would lead reasonable people, practically and realistically, to conclude that they are not able to decide fairly.

In the present case we are much stronger than anything even in Mr. Justice de Grandpré's behaviour because he was, after all, speaking in the statement complained of. In this case it is the Chief Commissioner of the Ontario Human Rights Commission.

In the statement in Morgentaler, Mr. Justice de Grandpré was actually expressing his personal views, and those personal views were held to be irrelevant to carrying out his task to judge on the merits. In the present case, these are not the personal views of the Member complained of. This is an attempt to find vicarious opinions based on the statement of the Chief Commissioner, so we are even one removed from there.

Let's look at the statement again. The statement expresses satisfaction after a jury verdict that a criminal case has been decided in a manner which vindicates the rights of individuals and groups to be free from conduct that targets them. Any right-minded member of the community would not be surprised that the Chief Commissioner of the Ontario Human Rights Commission expressed these views. They would be shocked if he did not. This is his mandate, and it is the mandate of the Commission.

I dare say that it would be surprising to a member of the community if they thought that members of this Tribunal did not have a commitment to protect individuals and groups from behaviour that targets them on the basis of a prohibited ground of discrimination. That is the entire purpose of the Canadian Human Rights Act, and it must be the entire purpose of members of the Tribunal to safeguard individuals and to provide remedies to individuals where it has been established that they have been the victims of discriminatory behaviour that targets them.

Even if you could draw some conclusions from the statement made by the Chief Commissioner of the Ontario Human Rights Commission on a criminal matter that would implicate the private views of the Member complained about with regard to a remedial proceeding dealing with entirely different issues, you would not come to a conclusion that the Member could not decide fairly. You would come to a conclusion that this was a perfectly expected and acceptable and, indeed, correct statement of the central commitment of members of a tribunal to safeguard individuals from this sort of behaviour.

THE CHAIRPERSON: How do you characterize the statement? Can it be interpreted as a policy statement and, if it is a policy statement, does it make a difference on the issue of imputation?

MR. FREIMAN: On the issue of imputation?

THE CHAIRPERSON: Yes.

MR. FREIMAN: I don't know whether it is a policy statement. It seems to me that it is more a statement in fulfilment of the mandate to comment on and to educate the public on these issues.

In the sense that it is a statement about matters of concern to the Commission, if that is what is meant by a policy statement, then it falls toward that end. It is not a statement that is intended to reflect private views; it is intended to reflect the view of the Commission as a corporate body. That is where I started with my second submission.

THE CHAIRPERSON: It doesn't appear to have the characteristics of an official policy statement.

MR. FREIMAN: No. The Chief Commissioner appears to be exercising his role as spokesperson to comment on matters of current interest and importance, from the point of view of his position as Chief Commissioner. I really can't go beyond that. It is not a statement that is intended to foretell what the Commission would do in a future case, although it would be entirely anodyne, even if it did.

MR. KURZ: I would like to make the following submissions in addition to those already made.

With regard to the identity of the maker of the statement -- first of all, we are not even certain what this is, to be frank with you. We don't know where this comes from. It appears to take the guise of a press release, not even a newspaper article. It is just a document that is handed to us that says "Headline: Human Rights Commission Commends Zundel Ruling." We don't even know what this is, whether this was even issued, where it went, what it did. That is the starting point with this, the quality of this which is somehow or other impugning a member of a tribunal and making extremely serious allegation.

We have a document that looks like a press release. What happened to it we don't know.

THE CHAIRPERSON: We don't know whether it was published.

MR. KURZ: We don't know anything about it. There is no evidence of it. That is number one.

Number two, what we see is that Raj Anand, who was the Chief Commissioner of the Human Rights Commission, made a statement on behalf of the Ontario Human Rights Commission. We have no evidence that Member Devins participated in that decision or was even asked about it, whether that is relevant or not anyway. I am just adding that to the submission. Not only was it not made by her; it was made by her superior.

When a statement is made by a superior, that does not necessarily indicate the personal views of every inferior. If Member Devins was a secretary at the Human Rights Commission, if she was a janitor there or if she was a summer student there, would that equally impugn her? That seems to be the implication.

I am going to move on now to the issue of waiver.

Mr. Christie throughout these Tribunal proceedings has been like the boy crying "wolf" except that the word he is crying is "bias." I have looked through my records to see how many times the issue of bias has arisen. Frankly, because my notes are not as legible as I would like them to be, it is not 100 per cent clear to me. However, I have a recollection, as I am sure you as Members of the Tribunal do as well, that the word "bias" has been raised in this Tribunal an incredible number of times.

It was raised on the first day, but in that context it was with regard to the Commission itself, whether it was biased, and we heard lengthy submissions that I don't want to repeat to you about the issue of bias.

With regard to the issue of waiver and knowability and whether it should have been considered, that was certainly on Mr. Christie's plate from the moment he walked in here.

Then I happened to find the transcript of your proceedings of October 14, 1997. This was before Dr. Prideaux took the stand and just after the Tribunal agreed that the Canadian Jewish Congress would be allowed to be added to the proceedings as an interested party. To assist you, because I know Mr. Christie made reference to it, if I may, I will read you some of the transcript from that day to show again how the issue of bias was very much on Mr. Christie's mind on October 14, 1997, before we embarked on six or seven weeks of evidence.

At page 369 of the transcript, at line 3 you asked Mr. Binnie who was then acting for the Commission whether he would call evidence. Mr. Christie stood up and said the following:

"If I may, in my letter of September 30 I asked to make the submission that any Member of the Tribunal should consider and disclose any support for or membership in any of the Intervenor organizations."

I will let you know that this is what he was always talking about, Intervenor organizations. Further:

"I don't know if it has been considered or if it needs to be further considered, but I want that put on the record. I likewise have difficulty with the 10-day rule which I indicated in my letter of September 30."

Then you, Mr. Chair, said:

"Let us deal with the first matter first, Mr. Christie. Let me help you with what you are trying to do here. What you are seeking is a motion to the Tribunal to ask Panel Members questions which might lead to a conclusion that there is or is not a bias. Is that what you are doing?

MR. CHRISTIE: No. My question was whether any Panel Member could disclose or at least acknowledge any support for or membership in any of the Intervenor organizations.

THE CHAIRPERSON: The issue is larger than that. Implicit in what you are saying is that you have the right to question members of this Tribunal with respect to issues that may go to bias. Where is your authority to do so?

MR. CHRISTIE: I don't think I have a right to question them, but I have a right to raise the issue. I think what I am relying on is the position taken by Ms Mactavish who at one point disqualified herself because she found that her husband was a member of the firm that was prosecuting on behalf of the Commission.

THE CHAIRPERSON: No, that was a fact in existence that was brought to the attention of the Tribunal. Do you have any facts with respect to any Member of this Tribunal which may lead to the conclusion that there is a reasonable apprehension of bias?"

You put it, Mr. Chair, to Mr. Christie right there: What are your facts?

How could it have been anything but front and centre on October 14, 1997 whether Mr. Christie has facts to show that Members of the Tribunal, the three of you, are biased -- and this is Mr. Christie's answer:

"I cannot have those facts. I don't know any Members of the Tribunal. But I think it is incumbent on Members of the Tribunal to do what Ms Mactavish did. I had no knowledge of her husband's involvement in any law firm. She brought that to my attention."

This, I think, is really important with regard to Mr. Christie walking in after six or seven weeks, plunking down two documents, and saying, "Suddenly now I can challenge one of your Members for bias.

Mr. Christie went on:

"I think it is the right and proper course, and I am simply stating that, if any Member of the Tribunal is either a member or supportive of any Intervenor groups -- it is not for me to have to inquire. It is not within my power to inquire. I think it is their duty to make that known. If that is known, it may not be prejudicial but, if it is, I should be entitled to know about it just as I was with Ms Mactavish."

In other words, Mr. Christie is saying, "Sure, I can raise the issue of bias whenever I want, but I don't have to do anything about it. I take the position that I don't have to make inquiries. I may well be able to cross-examine you, Members of the Tribunal Panel, about your bias --" and, again, he was only then saying that he felt that bias would involve membership in Intervenor organizations -- "but I don't have to do a darn thing about it myself."

I don't want to waste your time reading the rest. I will tell you this. The discussion then went on to deal with Ms Mactavish and how the facts came about, and I don't think that is necessarily relevant.

Then in the conclusion of Mr. Christie's submissions at page 372, dealing simply with that and a couple of cases, Mr. Christie says:

"I think, frankly, in those circumstances it is not a matter of a fishing expedition. It is a matter of a simple inquiry. If the Tribunal is of the view that nobody is, then that's fine. But I don't see how I could be in a position of having to do investigative work on Members of the Tribunal."

That is what he said eight or nine months ago.

Then, Mr. Chair, you made the ruling that there is no authority to allow Mr. Christie to simply cross-examine the Tribunal. If you wish, I will read it to you, but I am not sure it is necessary.

THE CHAIRPERSON: We have the record here.

MR. KURZ: Yes. Then I looked through my notes with regard to the motion arising out of Bell. You may recall that I stood up and had some comments because, on two different occasions, Mr. Christie alleged that you were biased personally.

My recollection -- and I have to tell you that I just looked at my notes, and they are not 100 per cent clear, and correct me if I am wrong. I remember he said it twice and I remember mentioning to you about it being said twice.

Number one was that you as a Tribunal had the temerity to actually hold a hearing once Bell was released and once Mr. Christie had written you a letter to say, "In light of Bell, you shouldn't even be sitting any more. You should be, in effect, functus." Mr. Christie said that you were biased by even giving the other parties a right to be heard with regard to what we should do with Bell.

Then again Mr. Christie said to you -- and I don't have the transcript. When you said, "Mr. Christie, assist me. What should we do with Bell?" Again, he said, "Well, that shows your bias," and he was not referring to institutional bias; he was referring to personal bias.

Again, Mr. Christie didn't feel he had to do anything to investigate it. He could just raise it and say whatever he liked.

Then we moved on -- and let me say, as well, that Mr. Christie stated that it was his personal view, that in the context of those discussions about your bias he talked about it in terms of himself. You will recall that I made some comments about it. I referred to the Ontario Court of Appeal where the Court of Appeal said that groundless allegations of bias were reprehensible. So Mr. Christie is no stranger to allegations of bias and to the fact that there have to be grounds to them. The Court of Appeal put him very much on notice on that issue in 1990.

With regard to one other time I was able to find in my notes, I remember the issue of bias and your bias as a Tribunal came up a number of times in the context of rulings with regard to Dr. Schweitzer. I made notes about them. I went through my notes and I found two; I believe there were more, but I can only refer to two.

At one point Mr. Christie was cross-examining Dr. Schweitzer about the comment about the eternal parasite riding high that would be found in one of the Zundelsite quotes, and he was, in effect, told to move on from a certain line of questioning dealing with facts. My note -- and I put this in the margin -- is: "Your bias is so completely transparent, Mr. Christie to Tribunal." He said that to you then.

Then later, again being stopped in questioning about "dark forces," he said something about the Tribunal not being entirely impartial. As I said, I know there were other occasions, but that is just what I could find in the couple of hours that we were here.

You were asking the question about knowability, what can be known. A 1988 press release -- and I am giving it credit by calling it a press release -- and a biography, although dated in 1988, presumably would be available as soon as Member Devins was appointed to the Tribunal. There is no evidence of unknowability. You have to assume notice. You have to assume that Mr. Christie has been on notice with regard to this issue because he has put you on notice, and the fact that he hasn't bothered to do anything about it until now, until we are almost finished the case. If there is no clear case of waiver, I don't know what is.

You asked a question about whether that was a policy statement. Let me just point out to you that Mr. Zundel's writings did not come within certainly my view of the law, in the context of the Ontario Human Rights Commission. He has never been dealt with by the Ontario Human Rights Commission directly. There have been no cases. I don't know if there have been complaints, but there have certainly been no cases dealing with Mr. Zundel. Because it doesn't deal with the Internet and certainly the only area of the Human Rights Code that could deal with him, as far as I am aware, is discriminatory signs, symbols and -- there is another term.

As far as I know, there is nothing in any way that the Ontario Human Rights Commission has ever felt comes within their mandate, so clearly it was the kind of general discussion of issues of public interest that Mr. Freiman made reference to.

Thank you.

THE CHAIRPERSON: Thank you, Mr. Kurz.

Mr. Fromm, I did not call on you earlier. Do you want to say something?

ARGUMENT ON BEHALF OF CANADIAN ASSOCIATION

FOR FREE EXPRESSION, INC.

MR. FROMM: Mr. Chairman, if I might go back to a previous matter that I think is very relevant here, some weeks ago the issue of the judgment by Madam Justice McGillis was raised before this Tribunal. At that time, reference was made to the McGillis decision, particularly paragraph 154 where she said:

"My conclusion is that there is a reasonable apprehension of bias arising in relation to the core characteristics of security of tenure and financial security of a tribunal appointed under the Act."

At that time there was an argument made and a motion made that these Hearings be quashed or end because of this reasonable apprehension of bias. You made a ruling at that time denying that motion.

I must say on this matter of reasonable apprehension of bias that we felt considerable unease at that time, but now with the information brought before you today by Mr. Christie, the matter has escalated, not just to a structural apprehension of bias that any Respondent feel, at least according to Justice McGillis, but something further. In this particular case, this particular Respondent may feel that there may be a reasonable apprehension of bias --

THE CHAIRPERSON: Mr. Fromm, we have already ruled on the McGillis matter, so move on to what you want to say concerning what Mr. Christie is dealing with.

MR. FROMM: Mr. Earle referred to this motion as a frivolous one. It doesn't seem possible, considering fairness, that any reasonable apprehension of bias is something that can simply be dismissed as frivolous.

In the judgment by the Supreme Court of Canada in regard to Newfoundland Tel, the Supreme Court ruled that everyone appearing before administrative boards is entitled to be treated fairly, that it is an independent and unqualified right. The judgment went on further to state:

"As I have stated, it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established."

The statement by the then Chief Commissioner of the Ontario Human Rights Commission back in 1988 may well impugn the perception of fairness on the part of one of the Members of the Tribunal.

It has been argued that this was just a regular press statement that was to be expected of the Chief Commissioner of the Human Rights Commission and that this would in no way reflect adversely upon any other member of the Commission. I respectfully submit that those arguments carry very little weight.

First of all, in the Ontario Human Rights Act, in section 27(2), we read that the Commission is responsible to the Minister for the administration of the Act. So the members of the Ontario Human Rights Commission are not employees; they are responsible. They have a directorial responsibility to the Minister for the administration of the Act. The role of a Commissioner is not, as Mr. Rosen suggested, as a member of staff but, rather, as a director with responsibility for the administration of the Act.

If we could go to the statement of the then Chief Commissioner after the conviction of the Respondent for wilfully spreading false news in 1988, the 1988 conviction, the then Chief Commissioner is quoted as saying:

"We applaud the jury's decision since it calls for sanctions against a man responsible for contradicting the truth of the suffering experienced by the Jewish people."

That is a highly-biased and argumentative statement. Even accepting that the book complained about in the false news trial, even accepting that that book questioned the numbers or the planning of the so-called Holocaust, in no way was Mr. Zundel charged with denying the suffering of those who suffered. The book, "Did Six Million Really Die?" may indeed have questioned the numbers who suffered, but neither that book nor, I think, any other reasonable person nor Mr. Zundel ever alleged that no Jewish person suffered in World War II or even suffered unjustly. The statement itself is highly argumentative and highly biased.

The submissions are being made to you by several of the interested parties that this was well within the mandate of the Commission. Your attention was drawn to section 29(d) of the Ontario Human Rights Code. There the Human Rights Commission is enjoined to develop and conduct programs of public information and education and undertake, direct and encourage research designed to eliminate discriminatory practices that infringe rights under the Act.

The administration of the Criminal Code of Canada is not within the purview of the Ontario Human Rights Commission. It is not part of the Act that Commissioners are enjoined to administer and for which they are responsible to the Minister. The Criminal Code falls under the purview of the Attorney General. This was quite clearly propagandizing and meddling.

The argument has been made that, even if this is prejudicial to the Respondent, nonetheless no member of the Commission could really be held responsible for that. I think the Canadian Human Rights Act is quite clear. It is the Commission that is responsible to the Minister for the administration of the Act. Indeed, the Chief Commissioner certainly made those statements. Other members of the Commission, had they personally disagreed with the statement, could well have spoken out publicly and, if necessary, could have resigned.

Under our British parliamentary system we have such a thing as ministerial responsibility, and that goes all the way down the line. Traditionally, if something goes wrong within a department, the Minister acknowledges responsibility and resigns.

I submit to you that, if a Commissioner who strongly disagreed with this statement and said nothing and didn't resign, it is reasonable to assume that that particular Commissioner essentially agreed with that statement.

The statement is highly prejudicial and highly argumentative, highly judgmental, and specifically names the Respondent Ernst Zundel.

Mr. Freiman wove a complex web which I am afraid I could not entirely follow to suggest that these really are two different complaints entirely. Among the list of documents submitted to you by the Commission as evidence that the Respondent has communicated information telephonically that is likely to cause hatred or contempt is the document, "Did Six Million Really Die?" "Did Six Million Really Die" was in fact the document complained about in the false news court case.

Further to emphasize the apprehension of bias is the fact that there is, at least to my knowledge, no evidence that in 1992 when the Supreme Court threw out the conviction of Ernst Zundel and struck down as contrary to our Charter of Rights and Freedoms the false news act, there is no evidence of the Canadian Human Rights Commission ever issuing a statement saying, "Well, we are sorry, and we apologize to Mr. Zundel. We have been unfair."

I just conclude by calling your attention to the Committee for Justice and Liberty et al v. National Energy Board, to the judgment in that case at page 735:

A reasonable person, in my submission, considering the statement here for which a Member of the Tribunal had executive responsible, had directorial responsibility -- a reasonable person looking at that might well conclude that this person might have a bias against the Respondent Mr. Zundel.

I suggest further that had there not been agreement with this statement, there was every opportunity to make a public statement at that time or, indeed, to do according to the time-honoured policy under British justice: if you cannot go along with the decisions of a board of directors or cabinet, you resign.

I submit that there is a very reasonable apprehension of bias which, unfortunately, taints these proceedings.

THE CHAIRPERSON: Thank you. Do you have anything to add to Mr. Fromm's comments, Mr. Christie?

MR. CHRISTIE: I certainly have things to say in response to the remarks of the other parties.

REPLY ON BEHALF OF THE RESPONDENT

MR. CHRISTIE: First of all, the source of the document is indicated as Canadian News Wire 88. This can be verified if need be.

The source of the document is identified as the Ontario Human Rights Commission. The source of the document is not Raj Anand. It is the Ontario Human Rights Commission, and the first sentence clearly identifies the statement as that of the Ontario Human Rights Commission.

The fact that they speak through the Chair of the Commission is not unusual. It would be no different than if this Tribunal spoke through the judgment of one of its Members. But if that Member, the Chair usually being that person, makes a judgment upon a situation of fact which comes before another tribunal, on which a member of that first Commission sits, it could never be alleged that it would not reflect a reasonable apprehension of bias.

The statement of the Ontario Human Rights Commission is for all intents and purposes the statement of Reva Devins because she sits as a member of that Commission, and the statement was made on behalf of that Commission, just as much as if you, sir, made a judgment on behalf of the Tribunal of which she is a Member.

If a group of persons dedicated to pro-life positions had publicly applauded the conviction of Dr. Morgentaler and commented adversely on his anti-Christian bias in a particular abortion, his conviction and the law being subsequently overturned, if he were to be brought before a Human Rights Tribunal for denying the rights of that same child or acting contrary to Christians, would these learned gentlemen take the view that a member of the first group would be allowed to sit on the Human Rights Tribunal adjudicating the same facts all over again?

Added to that is the fact that the statement is not made by some loose public group. It is made by a state-sanctioned adjudicative body on behalf of that body, with a collegial, collective responsibility to enforce a particular law, and they go beyond the scope of that mandate to comment on the exact same complaint as is alleged here. The publication of "Did Six Million Really Die?" is the factual basis for both complaints, and Holocaust denial is the factual basis for both complaints, and by the same Complainant. Sabina Citron brought the complaint that took Ernst Zundel to court from which he was sentenced on May 13, 1988. Sabina Citron's representative is right here today advocating exactly the same position to a Member of the same Commission who has denounced Ernst Zundel for exactly the same thing.

To compare the laws is totally --

THE CHAIRPERSON: Was the Zundel case a private complaint?

MR. CHRISTIE: Initially. The private complaint of Sabina Citron began the prosecution; the state took it over, as is the case here. The Commission carries the ball, and Mrs. Citron's lawyer intervenes. She didn't need to intervene. In fact, I think she attempted to intervene, but I don't think she was allowed to intervene in the criminal prosecution.

The statements of a state-sanctioned judicial body with authority and with power on behalf of the state that makes statements outside the scope of its mandate reflects and binds all those members who are in the position of Commissioners, commenting on the same complaint by the same complainant about the same accused as is before the Tribunal here. The Member of the Tribunal who is responsible for that statement sits in judgment on the very person she has previously condemned for the same thing.

There is no legal or moral way to distinguish the statement of the Commission, made on behalf of the Commission of which she is a member, from her own position, any more than it would be possible to say that a judgment of this Tribunal would not reflect her opinion -- unless she dissented, and there was no dissent.

THE CHAIRPERSON: There wasn't a judgment.

MR. CHRISTIE: It is a judgment; it is a statement.

THE CHAIRPERSON: It is not an official judgment --

MR. CHRISTIE: It's an official statement.

THE CHAIRPERSON: Let me finish. It is not an official policy of the Ontario Human Rights Commission, as I see it, to which by a vote or some formal act each of the Commissioners is deemed to subscribe. Even assuming that was the case --

MR. CHRISTIE: It was an official statement by the Ontario Human Rights Commission through its official representative, the Chief Commissioner, and it is on behalf of the Ontario Human Rights Commission.

Whether that would be called a policy in some sense we cannot establish at this moment. It would be, in my submission, incumbent upon anyone who is subject to this degree of apprehension of bias to identify the sources, if there is some distinction to be made, to distinguish themselves from the position taken by the Commission of which they are a member.

This Tribunal, in my submission, should do more than mouth the platitudes of human rights. It should apply the principles of human rights and natural justice to its own actions. The most fundamental necessity of fundamental justice is to a fair hearing by an impartial tribunal. A reasonable apprehension of bias must be treated as going to jurisdiction and be effective to quash the hearing. The Tribunal should not ignore what is obvious. It should not proceed.

In my submission, there is clear evidence of a prior statement by a Member of the Tribunal. I say "by a Member of the Tribunal" because it is made on behalf of the Member by an officially sanctioned body of which she is an appointed member. It is regard to the very person before this Tribunal on the same subject matter and brought by the same complainant. To ignore that would be a travesty of justice and a mockery. Any reasonable person would be offended by that.

If the Tribunal would not stop in these circumstances, in my submission, it would be contrary to fundamental justice and certainly seen as such.

Allegations are made about a number of things which I will deal with.

The Tribunal, in my submission, should not pretend that it would be incumbent upon the Respondent to know all the facts. The reason why waiver might have some significance in the circumstances of a tribunal in progress and the reasonable apprehension of bias that might exist by some systemic means arises out of the general presumption that someone is alleged and deemed to know the law and the implications of the law. There is, of course, some doubt as to whether the law has been defined until a court speaks, and that matter is before another court for another consideration. At no time has it ever been pretended by anyone that someone is deemed to know all the facts.

Unless there is the usual accusation and imputations that have been made about me personally in the past, as is usually the case from Mr. Kurz, it cannot be assumed that I was in any way dishonest when I pointed out that this had come to my attention this morning.

First of all, there can be no evidence of waiver unless there is a presumption that you are supposed to know all the facts there are in this world.

THE CHAIRPERSON: Can you ignore certain facts, assuming there is some force to the facts that you have put before us? Can you ignore those facts until a point in time that has been reached after several weeks of hearings?

MR. CHRISTIE: If I knew them, I surely couldn't.

THE CHAIRPERSON: They were ascertainable. These are facts --

MR. CHRISTIE: No, they are not ascertainable.

THE CHAIRPERSON: Those were facts that were ascertainable --

MR. CHRISTIE: No, they are not.

THE CHAIRPERSON: -- in respect of an event that happened in 1988.

MR. CHRISTIE: The existence of a press release in 1988 is not within my knowledge, and it is not ascertainable in any realistic way.

It is certainly true that, if it was possible to find out and if I knew, then I should not withhold this information.

The fact of the matter is that, if there is a reasonable apprehension of bias, the fact of it being in existence should be known to the Member. There is a responsibility on the Member to disclose known facts. They were certainly not known to me. Unless you have some reason to believe that I am lying, you should not impute that I knew these facts or that I could know them.

How was I supposed to know about a press release that existed in 1988?

THE CHAIRPERSON: How did you find out?

MR. CHRISTIE: I will tell you, if you want to know. Somebody, by luck, found it on the Internet this morning. It wasn't me.

THE CHAIRPERSON: Luck could have struck much earlier than today.

MR. CHRISTIE: Whether luck strikes early or late, if the truth of the matter is that it creates a reasonable apprehension of bias, it really shouldn't matter, unless you are suggesting that this evidence was somehow withheld.

MEMBER DEVINS: Mr. Christie, is there any limits on the time frame -- for example, had you not been aware of this fact until after the argument was completed and while the decision was under reserve or the day that the decision was released or two weeks after the decision was released?

MR. CHRISTIE: If there is evidence that creates a reasonable apprehension of bias or even actual bias, it doesn't really matter when it comes to light.

MEMBER DEVINS: For example, in the example where it was two weeks after the decision was released...?

MR. CHRISTIE: It could be raised by appeal if the Court of Appeal allowed new evidence.

MEMBER DEVINS: Thank you.

MR. CHRISTIE: The statement of the Ontario Human Rights Commission was gratuitous, beyond the scope of its mandate because it was not, as you say, articulated policy. It was attacking a specific individual on a specific set of facts that were not before that tribunal or likely to be, as Mr. Kurz put it.

THE CHAIRPERSON: We have your point on that.

MR. CHRISTIE: The allegation was made that this content deals with an entirely different issue. My learned friend Mr. Freiman endeavoured to persuade you that, because the law is different, the Criminal Code is different and truth is an issue in the Criminal Code, therefore, it is apples and oranges. But the comments were not made about the Criminal Code or the legality of the Criminal Code; they were about "denying the Holocaust" which is the thrust of the complaint before you here.

It was about a man responsible for contradicting the truth of the suffering experienced by the Jewish people which was visited upon them, et cetera. Further, it goes beyond. The judgment was expressed on behalf of the Human Rights Commission of Ontario that false information had been disseminated that maligns Jewish people.

That is essentially the same issue that is before you, whether or not Holocaust denial has that impact, whether or not this particular man is responsible for that. That case involved, as you will find from looking at Zundel 2 -- the subject matter of the complaint is set out at page 164. The Commission asked you to read the section which really has no bearing on the similarity of circumstances. The similarity of circumstances is identified in the charge itself, which says:

" -- he --"

That is, Mr. Zundel.

"-- knows is false and that is likely to cause mischief to the public interest in social and racial tolerance, --"

And what is it that he is alleged to have published? "Did Six Million Really Die?"

What is one of the first exhibits before you? "Did Six Million Really Die?" and the supporting material that comes from Power Letters about what he thinks about the subject of the Holocaust and how it is being used. The entire content deals with entirely the same fact, exactly the same facts.

You are not just a legal determinative body; you apply law and you make legal judgments. I am well aware of that. But you make determinations of fact, and the case revolves around determinations of fact. The judgment expressed by the Ontario Human Rights Commission is upon the facts of the case, the denying of the Holocaust and the man that they say is contradicting the truth and is responsible for maligning Jews. Those are the issues that are before you on the facts, the same issues.

My learned friend said that this is a policy beyond the scope of the facts. In my submission, if you look at the statement, it directly attacks an individual person, the same person who is before you. Of course, if that is the statement of Ms Devins, if that is her view, then why should she be sitting in judgment upon Mr. Zundel, the very man that she is now considering?

The principles as expressed in Bell Canada are applicable because the standard of care and the duty of impartiality is that of the highest standard. In paragraph 155 Madam Justice McGillis says:

"Everyone appearing before administrative boards is entitled to be treated fairly. It is an independent, unqualified right and, as I have stated, it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established. If there has been a denial of a right to a fair hearing, it cannot be cured by the Tribunal's subsequent decision."

That, I think, directs the answer to the question as to what effect, if any, does the lateness of raising the issue have.

This is not a competition of how we save the public money and, if we have invested a great deal of time in this, should we keep going. In my submission, if there is a reasonable apprehension of bias, it is not in the public interest to keep going and come to a decision which is tainted with that reasonable apprehension of bias.

If you have decided that you can waive that right and somehow you don't acquire these rights if you don't raise them in time, it seems to me you imply that we should have been able to find out these facts before. I suggest that, whether we had or not, we haven't and we couldn't have and we are not deemed to know them, like we are deemed to know the state of the Tribunal's status vis-à-vis some subsequent decision. I might say that, when Mr. Justice Richard considered that point, he did so on the balance of convenience test.

When you look at the facts -- and Mr. Freiman said that there is no comparison, that the facts are entirely different -- it is the same person, the same content, the same issue of Holocaust denial, the same complainant, at least one of them. How can you say there is a difference? In fact, what has been said has been sophistry, sophistry and more sophistry. Then we have, of course, the usual ad hominem attack about how many times Doug Christie has objected to bias. That, I am sure, is just a theme that we will hear more of.

This is not what entitles you to disregard justice.

When it comes to content, in my submission, a determination has been made about the character of the Respondent here, the content of the messages that have been alleged here, being the same messages alleged before and dealt with by the Commission's judgment and statement, and the decision made as to what Holocaust denial, whatever that means, constitutes.

Would a reasonable person conclude that the Member would not decide fairly? In my submission, a reasonable person would be aware that there has been a great deal of controversy for 10 years about the views of Mr. Zundel, and a reasonable person would conclude that, if the strong statements made on behalf of the Member were made 10 years ago about the same subject matter and the same complainant is still pursuing the same person with the same subject matter, those statements are applicable as much today from the mind of that person as they were then.

I was somewhat amused to hear my learned friend Mr. Freiman say that, when considering Mr. Justice de Grandpré's speech about abortion, that had some bearing. It was not a speech about an individual person. It was not a speech that is made by a person not sworn to be impartial, which is the case here. I don't know of any oath of impartiality or judicial independence that you take. I don't know that your status is that of independent. I think you are subject to reappointment, probably by the end of June in one case. I don't think the argument that a judge of the Supreme Court, who has all the impartiality that goes with judicial office, who has sworn an oath of impartiality, who is dealing with a question of law alone, has any bearing upon a tribunal such as yourselves who are not under any oath of judicial impartiality, do not have judicial tenure and are not dealing just with questions of law, but are dealing obviously with the same question of fact. What could a reasonable person conclude about that?

Because Mr. Justice de Grandpré's remarks in a general sense could be overlooked, therefore, your expressions about the same case on the same facts and on the same subject matter can equally be overlooked? I don't know how a reasonable person could come to that conclusion.

At one point Mr. Freiman and others have echoed the threat -- it is almost a threat -- the suggestion that it was perfectly acceptable, perfectly justifiable, perfectly correct that the Ontario Human Rights Commission should make those statements. What that amounts to is to say that you should have the same bias, that it is perfectly justified to have that bias.

The Ontario Human Rights Commission didn't hear the evidence in the Ernst Zundel case. They didn't have before them one person from that case. What did they judge the case on? I guess they must have judged it on the newspaper stories. Their opinion, based on the newspaper stories, speaking on behalf of the Commission, demonstrates a willingness to express hatred for an individual who is now before this Tribunal -- hatred expressed on behalf of the Commission of which Member Devins was a member.

How do we know what involvement she had? We don't know whether they took a vote. We don't know what they did in that regard. Do we have to prove that much, or do we have to put before you the evidence we have of a clear indication of a statement which is highly prejudicial, inflammatory, damning of this very same person, clearly based upon hearsay? If that is the level of impartiality and tolerance and attitude of impartiality that we can expect from the Member, because that was done on her behalf by the Commission, then how could we have any reasonable confidence that the same degree of bias would not exist today?

They were not actually educating, as my learned friend Mr. Freiman suggested, within their mandate. They were not actually educating the public about a policy of racial tolerance. They were speaking about a specific person in a specific case based on what they had read in the newspaper. It's a vastly different situation, one where the inflammatory comments of the Commission are so prejudicial against the accused on the same facts that they cannot be ignored.

The comments about frivolity and timing, availability of hearings, economy in terms of justice -- we never hear about taxpayers' money until the close of the Commission's case. It actually takes a year to get to the point where their case closes and then we hear about saving money and the need to get on with the taxpayers' business. Judicial independence and impartiality are not concepts that you measure in terms of dollars and cents. If that was the case, we would be able to take any tribunal, no matter how reasonable its position and no matter how biased it might be, and justify the continuation of hearings.

Mr. Rosen's comment about prosecutors has absolutely no bearing upon the situation of the Commission. The Ontario Human Rights Commission is not just a prosecutor. It is interesting that parts of the Act have not been included, but I don't think Ms Devins would suggest that they were just like a prosecutor. They have other functions as well.

To suggest that it has some comparison to a cleaning lady or a summer student, I can't imagine how that could in any way be relevant. We understand from information -- we are not able to put everything before the Tribunal, but I don't think we have to establish everything beyond a reasonable doubt. I think we have placed before this Tribunal a press release. If we had time, we could have put before the Tribunal whatever news stories resulted.

Is Mr. Kurz seriously suggesting that we should not accept the existence of this, that we have to prove more of this? He seriously contends that we must establish that it was in the public domain? I don't think we are talking about prejudice to a jury here. We are talking about one person who was a member of a Commission, a body of people, a corporate establishment that is authorized by law and spoke through its Chairman.

In my submission, there is ample evidence to suggest that that actually happened.

At some point, I think it becomes an obligation on the Member to acknowledge that. We are not allowed to question the Member. We are not allowed to go behind the circumstances that are clearly evident to us. It is obvious on its face that there is reason to apprehend bias from the information we have.

Mr. Kurz says, "Do you have any facts?" In my submission, you have facts. You have the source; you have the date; you have the content. If the respondents want to suggest that that is not the truth, I think with that amount of evidence there is a prima facie case and the burden shifts to them to say that this is not so. If such is not the case, we will make efforts to find further evidence.

We made this known at the first opportunity, and we have made enough of it known that it should be acted upon.

THE CHAIRPERSON: Are you suggesting that your whole case is not in at this point on this motion?

MR. CHRISTIE: If it is seriously contended that this is not enough to prove the existence of the statement or that somehow or other this is not really probative of the existence of this position, then I suppose we would have to renew it with further evidence when we can.

I suggest that that should never be required. It is clearly obvious, but one never knows what one is going to find when Mr. Kurz raises the suggestion that this might not be real, that this could be just a piece of paper.

If the suggestion is to be taken seriously -- and we will hear how seriously you take it by whatever you say. If your position is that enough evidence has not been introduced to establish the existence of these statements --

THE CHAIRPERSON: It is your motion, and I can't direct you as to what you put before us.

MR. CHRISTIE: I understand that.

THE CHAIRPERSON: Arguments are raised, and we have to deal with the arguments that are put before us. We are not an investigative body.

MR. CHRISTIE: I think you are actually, but never mind. Let's say you are not. If the suggestion is made that this is not enough evidence to establish the existence of these statements, then, of course, we can look for more. I don't think it would be proper to deny us that right.

Nevertheless, if that is the position taken, that there is really not sufficient evidence here of the existence of these statements, I will understand the meaning of that.

THE CHAIRPERSON: Mr. Christie, please don't attempt to put us in that position. All I am saying is that you are implying that, because of certain arguments that have been raised specifically by Mr. Kurz, you may have to do certain other things and place before us certain material. You are master of this motion, and I am just asking what you propose to do.

MR. CHRISTIE: I propose to leave the motion before you on the basis of the information we have provided and to take the view that, if that is not sufficient evidence of the existence of these statements, then we will make another motion on the basis of further evidence when we can get it.

We investigated what we could and we gave you what we have. In my submission, it establishes quite clearly enough that the Member knows exactly what we are talking about, or should. There is no doubt about --

THE CHAIRPERSON: Don't assume things about Members. It is inappropriate to do so.

MR. CHRISTIE: I said that was my submission. I submit to you that that is clearly identifying the date, the time, the place and the source. If there is need for further proof, then we will have to get it.

THE CHAIRPERSON: I am not going to ask for further proof. I am going to deal with the motion as it is presented to this Tribunal.

MR. CHRISTIE: That's fine. You go ahead.

THE CHAIRPERSON: Your position is clear that we are to make our decision based on what you are saying to us now and, if something turns on it later on, you can make a fresh motion.

MR. CHRISTIE: When the Tribunal puts upon itself the determination of its own bias and makes the decision that it isn't sufficient evidence of bias, that, in my submission, is somewhat of a difficult position.

THE CHAIRPERSON: It is a difficult position, but isn't it the accepted position in law that we have to rule on this motion. If we are wrong, you can take it to the next level and deal with it there. Are you suggesting that we are not required to make a decision on your motion?

MR. CHRISTIE: I wasn't suggesting that. I was simply saying that it is a difficult position.

THE CHAIRPERSON: I agree with you.

MR. CHRISTIE: I don't think anything should be taken further from the words that I said.

Thank you.

THE CHAIRPERSON: Thank you. Mr. Freiman, do you have reply?

MR. CHRISTIE: It is my motion.

THE CHAIRPERSON: We have gone through it; you are quite correct.

The Tribunal will reserve on this motion. Subject to what we decide and the result, I do want to carry on our discussion about management of business.

First, with respect to the dates that we have set in the fall, I have been told that there is some problem in at least one sector. Whoever has a problem, please tell us about it now.

Let me say in a preliminary way that, when I announced these dates on behalf of the Tribunal, it was fairly strongly in the Tribunal's view that we did not want to insert a great deal of elasticity or flexibility in the dates that were presented. If you have a strong case to say that those dates are not acceptable, then we will deal with it.

MR. CHRISTIE: If I may, for the Respondent, the 16th, 17th, 18th, 19th and 25th, 26th and 27th of November are not available because the British Columbia Human Rights Tribunal is proving the constitutional validity of their section in respect of a constitutional challenge, and that has been set for many, many weeks. It will take 10 days, and they want to call evidence. Therefore, it had to be set well in advance.

THE CHAIRPERSON: Where is this, I am sorry?

MR. CHRISTIE: It is in the Supreme Court of British Columbia. That is a matter that occupied --

THE CHAIRPERSON: Would you give me those dates again.

MR. CHRISTIE: The 16th, 17th, 18th, 19th, 23rd, 24th, 25th, 26th and 27th. That period of time -- from the 16th to the 27th is 10 days of hearing that is already set before the Supreme Court of British Columbia.

All other times that you have indicated I am available -- the 28th, 29th and 30th of October, 3rd, 4th, 5th and 6th of November, December 8, 9 and 10, 15, 16, 17 and 18. From the 16th to the 27th, that has been set.

THE CHAIRPERSON: Please give me the dates that you are available again.

MR. CHRISTIE: 28, 29, 30 October; November 3, 4, 5 and 6; December 7, 8, 9, 10, 15, 16, 17 and 18.

MR. FREIMAN: On behalf of the Commission only, the Commission adopts its usual position that we will be here whatever days we are asked to be here. We may not all be here, and in that regard I hope that the Tribunal does not view my absence over the last few days on and off as anything other than an indication that sometimes one is forced to be in more than one place at one time.

I am amply confident that my colleagues can carry on the case in my absence. We will continue to make ourselves available at whatever time and whatever date. At least one, or more often two, of counsel will be available.

MS MATHESON: Mr. Chairman, I am afraid that the unavailability issue that we have doesn't jibe very nicely with Mr. Christie's issue. It is indeed the first two weeks, a total of seven days in October and the first week of November, where we are not available. Mr. Armstrong advised me that we were asked to speak to these dates this week, so I mentioned it to Madam Registrar yesterday.

THE CHAIRPERSON: Give me the dates again that Mr. Armstrong is not available.

MS MATHESON: The three dates in October and the first four dates in November, 3, 4, 5 and 6.

THE CHAIRPERSON: That leaves us, by my calculation, with only the dates in the second week of November and the 15, 16, 17 and 18 of December.

MS MATHESON: Just one other thing, Mr. Chairman. I was not present last week when the dates were discussed, but I did wish to say that there is considerable availability prior to all of those dates, so we would be pleased to discuss earlier dates. I appreciate that that may not be possible.

MR. CHRISTIE: Was I right in understanding that the 7th, 8th, 9th and 10th of December were acceptable to the Tribunal?

THE CHAIRPERSON: Yes.

MR. CHRISTIE: I am available. The 15th, 16th, 17th and 18th are available.

THE CHAIRPERSON: Yes.

MR. CHRISTIE: If Mr. Armstrong is excluding the three in October and the first four in November, then those are the only ones that are still there, if that is the case.

THE CHAIRPERSON: Is that correct, Ms Matheson? Let's go from the dates that Mr. Christie is available.

October 28, 29 and 30 Mr. Armstrong, you say, is not available.

MS MATHESON: Mr. Christie is correct. That is why I commented that the fact that they don't coincide isn't helpful. The only dates that are open to both are the dates in December, which I think you counted correctly to be eight days.

THE CHAIRPERSON: What about November 3, 4, 5 and 6 -- I am sorry, the week after that, the week beginning on the 9th?

MR. CHRISTIE: I am available then.

MS MATHESON: No problem.

THE CHAIRPERSON: We will slot in November 9, 10, 11 and 12.

MR. ROSEN: The 11th is Remembrance Day.

THE CHAIRPERSON: Oh, yes, it is. The 9th, 10th, 12th and 13th. Are we all clear on those dates? I will have the Registrar confirm those dates in writing to you.

MR. FREIMAN: May I suggest, in light of the mammoth attrition that just occurred, that it might be advisable -- there is no way of knowing how many days we are going to need. The sad experience is that we always underestimate. I would suggest that it would be advisable to reserve more dates. If, by some chance, there were earlier dates available, that would be fine. Even going in 1999, if we don't do it know, then we will find that the dates will be spoken for.

THE CHAIRPERSON: We had better look at January.

MR. CHRISTIE: I don't have my calendar for January.

THE CHAIRPERSON: Why don't we suggest eight days beginning in the second week of January. The Registrar will set out those dates in her letter -- four days at a time, beginning the second week in January.

MR. CHRISTIE: I don't have my January calendar here.

THE CHAIRPERSON: I will have the Registrar send that to you, and then counsel can respond.

There is another matter dealing with scheduling this week. I am asking whether any counsel have any objection to our proceeding to hear the balance of the evidence that we had scheduled for this week in the face of Mr. Christie's motion. I will proceed in the absence of any objection. My colleagues and I will not have a decision by tomorrow. Unless anyone has any objection, we will proceed to hear the evidence tomorrow.

There is one other point I want to make. I will ask for a response to what I have just said, but there is one other point I want to make.

My colleague Jain's son is being called to the bar on Friday. Friday is the day on which we usually rise a little early in any event to get me back to London by train. I am going to suggest that we proceed on Friday until one o'clock and start at 9:30.

Can I ask for any comments with respect to the first issue I raised?

MR. CHRISTIE: I personally would like to submit that it is proper to deal with this motion now. I don't agree that we should be going on in circumstances such as I have suggested exist, or might exist depending on what you think. I submit that it is not something where we should just carry on as if nothing had ever happened. I submit that there should be a decision made and we should know what it is and govern ourselves accordingly.

I am not sure that I can agree with the suggestion that we just carry on. I can't agree with it.

THE CHAIRPERSON: Mr. Freiman, please.

MR. FREIMAN: From the point of view of the Commission, it is entirely proper for the Tribunal to reserve its decision. We have such a dearth of available Hearing dates that it would be contrary to the public interest to lose two more.

The arrangements, as I understand it, have been made for the evidence of Mr. Christie's next witness. He is undoubtedly here. I believe he was in attendance on previous dates. There is no incremental cost worth thinking about compared to the damage to the public interest of not proceeding. In my respectful submission, we ought to proceed in as expeditious a manner as possible.

THE CHAIRPERSON: One can agree in principle with that, but let me ask this question.

The next witness is Mr. Klatt, I understand, Mr. Christie, and I would ask you and other counsel opposite to comment on whether we are going to finish Mr. Klatt. If we are likely not to finish, is it prudent to interrupt his evidence for six months perhaps?

MR. CHRISTIE: Mr. Klatt has to catch a plane at noon on Friday, if it is possible. It would be very difficult and expensive for him if he doesn't. That is why I question whether we should be proceeding with his evidence at all until this matter is resolved.

Our concern is that it is very unlikely that he would be concluded by the end of Friday. I take it there is some question, and I have not considered the issue, of a witness with an interpreter. That is something I want to discuss with Madam Desormeaux, if I may, after these Hearings today.

It is not, in my view, appropriate to proceed when the issue is a live one as to whether it should be proceeding. It strikes me as unusual.

THE CHAIRPERSON: I just want to address the other issue, whether we are going to finish Mr. Klatt, and you do not believe that we will.

MR. CHRISTIE: There is the big question of qualification. I did not initially perceive that to be an enormous question, but it is. Therefore, we go through that, and the argument could take all day. That has been the practice that has developed here.

Then, assuming he is qualified -- and all that is unknown -- I don't know whether it would be likely that he would be finished by Friday. I think it unlikely actually, with the way things have gone. So there is the problem.

THE CHAIRPERSON: Thank you. Mr. Freiman, please.

MR. FREIMAN: Looking objectively at the evidence proposed to be called, it seems to me that it is pretty straightforward. The cross-examination is pretty straightforward. It should not detain us beyond Friday.

In any event, I remind the Tribunal that we have in the past had to sit through lengthy pauses between the evidence of witnesses and their cross-examination. At least we got the evidence in.

The Tribunal will have the benefit of a transcript in any event. The matters proposed to be examined are not matters that require a great continuity of examination-in-chief and cross-examination in any event.

There is also the issue of the second witness who is present, who should be prepared to proceed. Mr. Klatt is here. He has his plane ticket, and he is not going anywhere until approximately the time that you are planning to rise in any event. We should make use of that fact. We are not putting him to any inconvenience.

THE CHAIRPERSON: Thank you. Mr. Kurz, please.

MR. KURZ: Mr. Chair, I just want to point out as well that there may well be two parts to Mr. Klatt's evidence, the evidence with regard to whether he will be accepted as an expert and then the evidence that he will give in regard to the substance of the matter. It may well be that, whether we finish the second part, we certainly will be able to finish the first part. Let me say as well that, if necessary, you could even reserve on that if that takes any length of time.

The witness for whom there is a German language interpreter is available. You could at least hear some of that evidence and reserve on that as well. Then you could issue your ruling with regard to Mr. Christie's motion -- if necessary. I am suggesting that is, in effect, a second or third alternative.

Another alternative would be to take some time tomorrow morning, if necessary, to at least make a decision with regard to Mr. Christie's motion, even if written reasons have to follow. I am just trying to find ways. Days are like gold in this case. I, on behalf of my client, and probably everybody else, don't want to lose days. If there is anything that can be done to make this time worthwhile --

THE CHAIRPERSON: I understand that, but the Tribunal has followed the practice of not announcing a decision until its reasons have been fully articulated. I think we will continue with that practice.

We will retire for five minutes to decide whether we are going to adjourn or not.

Mr. Fromm, did you rise?

MR. FROMM: Mr. Chairman, in trying to assist you with scheduling, my associate Mr. Lemire, who has a great deal more expertise in computers than I do, would like to ask a number of questions of Mr. Klatt. That may take some time.

--- Short Recess at 4:08 p.m.

--- Upon resuming at 4:10 p.m.

THE CHAIRPERSON: In all the circumstances and considering the fact that, when past experts were called, much time was occupied in qualifying the expert, and leaving aside the substance of his evidence at this point, by reason of that and other considerations including submissions by Mr. Christie, we are going to adjourn these proceedings to the next appointed day, which will be November 9.

Of course, we will let you know the venue -- hopefully a place, if we proceed, with better acoustics.

Thank you, counsel.

--- Whereupon the Hearing was adjourned at 4:12 p.m.

to resume on Monday, November 9, 1998