Toronto, Ontario

‑‑- Upon resuming on Tuesday, November 10, 1998

at 9:44 a.m.

THE CHAIRPERSON: In the matter of Mr. Fromm's application for subpoenas and to call certain witnesses, do counsel have some comments to make? Mr. Freiman...?

MR. FREIMAN: I think it would be appropriate to hear from Mr. Christie first since he appears to be o similar interest.

THE CHAIRPERSON: I am sorry. Yes, that is appropriate.

MR. CHRISTIE: The position I heard explained by Mr. Fromm yesterday made some sense in that the Tribunal has asserted the principle that context is important; yet, so far there has been very little, if any, context led by the Commission or the various Intervenants. It would seem to have pointed in the direction of an obvious vacuum that some of this evidence would be capable of filling. There is, of course, other evidence that would be capable as well.

If the context comes from those who are in positions to be most affected, it would seem logical that that is a context we should be able to hear from.

I would like to raise issues with that in mind. I would like to be able to ask questions pertinent to the issue of context of the people whom Mr. Fromm mentioned.

That is my position.

MR. FREIMAN: I have a number of submissions of a general nature in opposition to the request for summonses. I expect that the Intervenors and Complainants who are directly associated with the individuals intended to be called will have more specific comments about the specific individuals.

My submissions really are four-fold, each in support of the proposition that the summonses ought to be rejected. It will be my submission that the request for a summons with regard to these witnesses is inconsistent with the statutory test for issuing a summons; that is point number one. Point two, it is inconsistent with the terms of intervention under which Mr. Fromm's organization was granted standing. Third, insofar as what is intended to be called is expert evidence ‑‑ and I think Mr. Fromm made it clear that that is what it was with regard to at least one of the proposed witnesses ‑‑ my submission will be that, in fact, it is likely that what he is looking for is expert evidence from all four. Insofar as it seeks to compel expert evidence, the request is inconsistent with the law regarding expert evidence and the compellability or not of an expert and the circumstances under which an expert is compellable.

Finally, in my submission, most telling, at least in terms of stepping back for a moment and looking at what is being asked, what is being asked is paradoxically and, in my submission, shockingly inconsistent with the ostensible mandate of the very group that Mr. Fromm represents here. What I mean is that we have an organization said to be devoted to the concept of freedom of expression that is asking for forced speech and is seeking to compel those who don't want to speak to speak.

Let me take my submissions one by one, and I will deal in general with context and then the applicability to each one of the proposed witnesses.

First, the Act itself. Subsection 50(3) of the Act ‑‑ and, I am sorry, I did not bring extra copies, but it is not very controversial. Subsection 50(3) gives the Tribunal the discretion to issue a summons. In fact, I misspoke myself; I do have copies.

THE CHAIRPERSON: I do not believe we have seen the counsel sitting next to Mr. Kurz before yesterday. Could I have your name?

MR. RICHLER: Actually, you have seen me once before. My name is Richler, and I am here for the Canadian Jewish Congress.

THE CHAIRPERSON: Thank you.

MR. FREIMAN: Subsection 50(3) provides:

"In relation to the hearing of the inquiry, the member or panel may

(a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the complaint;"

I ask the Tribunal to pay special attention to two words. The first is "may" which indicates that this is a discretionary power, and the second is that it is with reference to evidence that the panel considers ‑‑ once again, it is a discretionary issue ‑‑ necessary for a full hearing. The test of necessity is an important test. It is not a low test. It is not that it may be that in the course of giving evidence something may come out. It is that the evidence of this person is necessary and, without it, the Tribunal cannot have a full hearing and consideration of the complaint. That is the first point.

The first test will be: Is the evidence necessary and should the Tribunal exercise its discretion?

THE CHAIRPERSON: There is a certain onus under this section to find justification for the issuing of a subpoena.

MR. FREIMAN: Yes. Unless you can determine that the evidence is necessary, then you ought not to issue it. In my submission, the use of the word "may" on top of that gives the Tribunal a residual discretion in any event to consider all the circumstances. Even if evidence could be said to be necessary from one point of view, if there were other ways of providing the same information, then the Tribunal still has the discretion, if it is inconvenient or for any other reason inadvisable, not to issue the subpoena.

The second point is terms of intervention. On December 15, 1997 Mr. Fromm, on behalf of the Canadian Association for Freedom of Expression Inc., sought and was granted interested party status. In granting that motion ‑‑ and this is at page 1112 of the transcript of the proceeding, and I will distribute that.

I will start at page 11 where the Chair states:

"Dealing with the applications of this morning, the Tribunal has a broad discretion...in dealing with applications for interested party status. in exercising our discretion, we must also be mindful of the need to ensure that the proceedings are run smoothly and concluded in an expeditious manner consistent with the duty of fairness.

In exercise our discretion, we have already granted interested party status subject to certain conditions to four organizations. In light of our ruling on those applications, we find that the motion brought by Mr. Fromm on behalf of the Canadian Association for Free Expression should be allowed. We are satisfied that Mr. Fromm will bring a unique perspective to these proceedings and that his organization has demonstrated a credible interest in the significant issue before this Tribunal."

At line 11:

"We would, however, place the same restrictions on this intervention as we have with respect to the other interested parties ‑‑ that is, restraint must be exercised to ensure that interventions are only made where they relate to the issue which is directly or substantially related to the party's specific public interest. The focus of Mr. Fromm's organization is on the issue of free expression.

Further, any participation by the parties must not unnecessarily extend these proceedings or be overly repetitious."

So there are two additional restrictions placed on evidence to be called by Mr. Fromm on behalf of the Canadian Association for Freedom Expression Inc., namely that the evidence must relate to the specific area of expertise, namely freedom of expression and, secondly, that it not be overly repetitious.

Third is the law with regard to expert evidence and how the law with regard to experts interacts with the general subpoena power. Mr. Fromm tries to gloss it over, but the reality is that what we have here is a request to compel someone to come and give evidence. That means ‑‑ and we can certainly infer from the request for the subpoena ‑‑ that the person in question has not indicated a willingness to come. In my respectful submission, we can infer even further that the potential witness has been asked and has declined to come. The force of a summon is to say: Nevertheless, you shall come and you shall give evidence.

How does that work with expert evidence? In my submission there are two sorts of expert evidence that one might encounter in the course of a hearing. The first is evidence from a witness who is factually connected to the matters in issue and who, in the course of giving evidence, also expresses an opinion that lies within a special area of expertise.

In my submission, such a fact expert who also concurrently or incidentally gives expert evidence is compellable. He is compellable because he has evidence with regard to the facts, and the circumstance that part of that evidence may be in the form of opinion does not change the nature of his participation as a fact witness.

However, there is another kind of expert evidence, and that is the evidence that we were hearing yesterday from Mr. Klatt. That is evidence of a person who is knowledgeable in a particular field who is not factually connected to the case, but gives an opinion on a matter in issue in the case.

It is the second kind of evidence that we are dealing with today and, in my respectful submission, that evidence is not compellable. There are established procedures for bringing the second sort of expert evidence, opinion evidence of a non-fact witness. They include retaining that witness, arranging for his attendance and preparing, in the case of this Tribunal a given number of days in advance, a summary of the evidence to be given by that person. That is the way you bring that sort of evidence.

You cannot, in my respectful submission, compel that sort of evidence. It is not the case that I can pick an expert out of a hat and say, "Hey, this guy really knows something about the issue that I would like to deal with at the Tribunal," serve him a subpoena, and the result of that subpoena will be that whether he wishes to or not he is obliged to come and give evidence.

I may be involved in the courts in a medical malpractice case, and I would think that the winner of last year's Nobel Prize in medicine would be an excellent witness in support of propositions that I wish to make. I cannot simply come to the court or to a tribunal and say, "Would you please issue a subpoena for the winner of the Nobel Prize to come and testify, because he really knows what he is talking about."

In support of these propositions ‑‑ they are so elementary that it is somewhat difficult to find them, but I did find them in a work on expert evidence called Hodgkinson on Expert Evidence.

If you open up the little handout at point No. 2 on Compellability, at page 104, the text reads:

"In Seyfang v. Searle Cooke J. considered the circumstances in which an expert would be compelled to give evidence. To the extent that he is a witness to a fact in issue in the case, he is usually compellable, and in this respect is little different from any other witness. The same does not however apply to evidence of opinion, unless he has some particular and important factual link with the case:

'The English courts will not as a general rule require an expert to give expert evidence against his wishes in a case where has had no connection with the facts or the history of the matter in issue.'"

That, in my respectful submission is enough to dispose of the expert issue. But even stronger is taking a step back and looking at the mandate that I understood Mr. Fromm and his organization are here to support, which is that freedom of expression should take precedence over many other societal values and that it is so important that it ought not to be interfered with, even by so important a social purpose as preventing the spreading of hatred and contempt.

As I understand it, freedom of speech includes not only the freedom to speak but the freedom not to speak. If freedom of speech indeed includes the freedom not to speak, in my submission, it is a sorry spectacle to see the so-called advocates for freedom of speech ‑‑ a gentleman who has no desire or a lady who has no desire to come and give evidence ‑‑ nevertheless being compelled to speak when they have said that they are not interested in speaking, even though they have no connection whatsoever with the case.

THE CHAIRPERSON: What do you say about the issue of relevance? Mr. Fromm is talking about calling these witnesses who, on the face of what Mr. Fromm has said to us, he wants to bolster your case?

MR. FREIMAN: Apparently.

THE CHAIRPERSON: What is the relevance on the basis that he puts it to us?

MR. FREIMAN: Let's get to it. I have just outlined the principles that I want to apply, and let's look at the issue of necessity, which really encompasses relevance.

Mr. Fromm says that the first witness that he wants to call is Mr. Jones who has a connection with an organization that apparently is interested in issues of free speech and the Internet. We have not had the benefit of hearing what Mr. Jones would or would not say, and I take it that that is because he is not speaking to Mr. Fromm and not telling him what he would or would not say, so we have to hypothesize. Right at the starting gate that trips up Mr. Fromm and his horse. How can you establish relevancy if you don't know what the person is going to say? You can ask questions ‑‑

THE CHAIRPERSON: He does say with respect to the three witnesses he proposed to call originally that there is relevance in respect of the social context.

MR. FREIMAN: I was going to look at the witnesses seriatim, but I am glad to ‑‑

THE CHAIRPERSON: That is fine. You are addressing those matters.

MR. FREIMAN: I will address each of those matters. Let's go quickly.

David Jones ‑‑ as I said, it is very difficult to get anywhere on this one because we don't know what he is going to say. We don't know what the connections are with any matter in issue in this proceeding.

Mr. Fromm is here to defend the interest of free speech and can say what he wants on that topic, but it is not immediately clear what the issues of freedom of speech are that apply to the task of this Tribunal, which is to determine whether there has been a communication, whether it is telephonic, whether it has been caused by the Respondent, and whether it is likely to expose people to hatred and contempt on the basis of an identifiable ground. There may be a freedom of speech issue lurking there somewhere, but it is not immediately evident on the face of the particular section, especially in circumstances where the Supreme Court of Canada has held that this section is constitutional.

So we have a problem at the outset in establishing what the potential connection is. We have a more serious problem given that we don't know what the evidence is going to be, so we don't know what the nexus could be.

Finally, I guess it is opinion evidence; presumably, it will be opinion evidence. That is what Mr. Fromm told us, and we will deal with the problem of that in a second. In any event, it is not necessary. It is not necessary in light of the evidence we already have about Mr. Fromm and his organization and his intentions. Mr. Fromm's organization, we are told, has a plethora of members all devoted to this cause, so there is no reason to believe that he could not call someone from his own organization to give this evidence. We don't need to go outside the organization.

He has already told us that he is going to call a Mr. Collins from British Columbia, without need of summons, to give evidence on this very issue. In fact, if you look at the blue ribbon, I expect Mr. Klatt can give him the same sort of evidence as well. The blue ribbon, as I understand it, indicates a devotion to the cause of freedom of speech on the Internet. My further understanding ‑‑ and perhaps it will come out in examination-in-chief; it did not come out in the qualification of the witness and, if it does not, it will certainly come out in cross-examination ‑‑ is that Mr. Klatt is indeed a member of a number of organizations and associations devoted to this very cause, so we can get the evidence from Mr. Klatt as well.

There is no need to go outside of that and, if you do go outside of it, you begin to get tripped on the restrictions this Panel put on participation, namely that the evidence should not be repetitive, that it should not unduly prolong.

What we are being asked to do is to issue a summons for an expert to add to the testimony that we already know is coming from Mr. Collins, that could be available from Mr. Klatt, and that could be called by Mr. Fromm on the basis of his own membership.

With regard to Mr. Jones, there is also the problem that it is opinion evidence. I submit that the passage I read to you applies directly here. You cannot simply pick a name out of a hat and say, "This guy knows something about the topic that interests me. Let's bring him in and have him testify." In addition to being prohibited on the law, as a practical matter, it is unfair to the expert, unfair to compel someone who does not want to provide opinion evidence and to force him to do that, to leave his other important tasks and devote time to preparing an expert opinion and delivering it. It is a way of circumventing the rule of the Tribunal since an involuntary expert certainly could not be forced to provide a summary of his expert testimony and we, therefore, run afoul of that rule. In general, it is inconsistent with ideas of fairness and practicality. You could not do it court, and you cannot do it here.

That is Mr. Jones.

Next we have three other witnesses: Ms Citron, Mayor Lastman and Mr. Kayfetz. They are said to be useful to the Tribunal on the issue of social context.

First, let me note with regard to the restrictions on Mr. Fromm and his organization that social context is not freedom of expression. He was not granted intervenor status to pontificate about social context, and he ought not to have the mandate for his intervention extended to areas outside of freedom of expression. Social context by no stretch of the imagination can be said to be part of Mr. Fromm's mandate, but let's go beyond it.

What is the nature of the evidence that is being sought? There are only two things that one might divine from that.

If we take seriously the concept that this is only about social context, then what we are being asked for again is expert evidence. It is someone's opinion as to the state of social relations or the context in which speech is being spoken. That is the only connection. All the restrictions on expert evidence apply, plus there is really nothing to suggest that these three particular individuals have any special expertise on social context. They are not sociologists; they are not noted writers on social context. They are people who have their lives and have their experiences, but they are not experts by any means on social context.

If, in fact, what Mr. Fromm means ‑‑ and in listening to his submissions yesterday I got the impression that what he really meant was that he wanted these people to give evidence ‑‑ at least Ms Citron and Mr. Kayfetz ‑‑ about specific effects on specific individuals. If it is effects on other people, I don't know how they can give that evidence or what they can say about how things affect other people. If it is effects on themselves, in my submission, it is entirely irrelevant.

Subsection 13(1) deals with communication that is likely to expose individuals to hatred and contempt. That is not synonymous with evidence and has no contiguity with evidence of effect on the individual. The test is not whether somebody's feelings were hurt; the test is: Is the speech in question likely to expose someone to hatred and contempt? There is no nexus between those two questions.

In my submission, it is hard to get beyond the first hurdle again: What assistance can these individuals provide to the Tribunal on a matter in issue? What assistance can the line of questioning that Mr. Fromm proposes to subject them to be in order to advance the mission of this Tribunal?

It was significant in the context of the very brief submissions of Mr. Christie this morning that his main reason for supporting, or one of the reasons that he wishes to support, the application is that he would like to cross-examine these people. I am sure he would, but that is not part of the test for making a witness compellable. The fact that somebody would like to cross-examine ‑‑

THE CHAIRPERSON: Generally, when you are in the same interest to the party, it deprives you of the right of cross-examination.

MR. FREIMAN: One would have thought so. I can imagine ways in which inventive counsel might try to bootstrap themselves into a right of cross-examination, whether the party that calls is similar in interest. I would obviously object to that in the unlikely event that these people are called.

I simply note that those submissions by Mr. Christie, brief as they are, should give the Panel additional pause as to exactly what it is that is going on here.

That, in my submission, deals with Ms Citron and Mr. Kayfetz.

With regard to Mayor Lastman, one wonders what on earth is being sought here. We have already had, for better or for worse, the evidence of the Mayor as she then was at the time of the Complaint. The Tribunal expressed some skepticism, in fact, as to the significance or the relevance of her testimony and, as I recall, it went in mainly because nobody objected to it.

Whatever relevance ‑‑ and you have the evidence for what it is ‑‑ there was in Mayor Hall's evidence, what possible relevance can there be in Mayor Lastman's evidence? He was not the Mayor at the time of the Complaint. He is the Mayor now. As Mayor, he is not an expert on social context. As Mayor, he is not an expert on what motivated the prior Council to bring forward this Complaint. In fact, the only thing that can be said about him is that he is the Mayor of Toronto. To the extent that his evidence could even possibly, under the wildest stretch of the imagination, be tangentially relevant, it is merely repetitious of what Mayor Hall said. There is no indication that he would say anything different from what she said. We have already heard it once; there is no need to hear it again.

It is not necessary. Mayor Lastman's evidence is clearly outside of the area of Mr. Fromm's proposed intervention. Like all the other subpoenas, it smacks of unfairness and of an ulterior motive. There is nothing that this Tribunal can gain from issuing these subpoenas in terms of its mandate. There is much that it can lose in terms of unnecessary delay added on to what has already been monumental unnecessary delay.

These summonses ought not to be issued.

THE CHAIRPERSON: Thank you, Mr. Freiman. Ms Matheson, your client is directly affected here.

MS MATHESON: Thank you, Mr. Chairman. My job has been made easier because in many respects my submissions have been made by Mr. Freiman. Let me just go through them very quickly.

I think it would be of assistance to you to have, in addition to the ruling made in respect of Mr. Fromm's organization in particular, the earlier ruling you made which applies to all interested parties. It is not to deluge you with a lot of paper but just so that you have all your rulings in front of you.

You may recall that what you did in your decision was to apply some principles to the first interested party and then seriatim state that those applied to each and every interested party.

In particular, I draw your attention to page 6 when the Tribunal was disposing of the first application, this application being for B'nai Brith. The Tribunal stated in the second full sentence:

"While what is being granted is loosely described as interested party status, we expect the League and its counsel to be acutely vigilant not to intervene in issues in which the interests of the League are neither direct nor substantial. Restraint is required as well with respect to any option of calling witnesses ‑‑"

And I just note that that is expressed.

"‑‑ cross-examining and participating in submissions so that these proceedings are ensured of no overlapping, unnecessary extension or prolixity."

I draw that to your attention so that you see that you expressly addressed the question of calling witnesses.

I adopt Mr. Freiman's submissions with respect to the scope of that right afforded to Mr. Fromm and observe that the only witness that even remotely might relate to the issue upon which this Tribunal is granted that status is the first of the four witnesses. I adopt Mr. Freiman's submissions to the effect that, first of all, you ought not compel an independent expert witness before this Tribunal because that is not appropriate and, secondly, you have already been advised that this interested party intends to call a witness, Mr. Collins, on this issue. In my submission, one witness on one issue is all that you get to call in a tribunal where you have been told to exercise restraint in the calling of witnesses.

With respect to the other three ‑‑ in particular obviously Mrs. Citron, but I think it goes for all three ‑‑ I just want to dwell for a moment on section 13.1. This Tribunal has been charged with making a decision under section 13(1), not under some other section. This is not a case of an individual being denied access to an apartment or being denied an employment opportunity where one of the witnesses who was in the room at the time when the alleged conversation took place is not before you and you feel that, in order to evaluate the facts, you must have that person before you and conclude that, even though they are not volunteering to come forward, as a matter of necessity you need that evidence in order to make your decision. That is not this case.

What is this case? You are being asked to determine whether this matter is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on a prohibited ground.

I just ask you to ask yourselves this question. I have my note here of what Mr. Fromm said yesterday with regard to Mrs. Citron, which I understand he then proceeded to apply to the other two witnesses. What he said was that he would be interested in her evidence on the effect of the words complained of on herself and the community that she represents.

First of all, as Mr. Freiman has said, the effect on one individual is not what you are here to determine. If you were here to determine the effect on one individual, it would not be an individual who was inside the identifiable group. This section is focusing on the effect on people not inside the identifiable group and how they regard people who are. How does this affect a population and how the population regards Jewish people? That is what this section is all about.

THE CHAIRPERSON: Outside the group.

MS MATHESON: Outside the group.

We are not going to have a parade of individuals saying, "This is how this affects me personally." That would not assist this Tribunal. It is a question of whether this is likely to incite hatred.

I just say this. It is not relevant to ask any one individual inside the group that is said to be affected how these words have an impact on them. In my respectful submission, it cannot be described as necessary to compel that evidence. I suppose, if someone voluntarily came forward and no one objected, you might hear, but that is not the test here.

The other thing I note is that, to the extent that what we are looking at is the effect on a community, in this case the Jewish community, if that evidence were relevant ‑‑ and I submit that that would be a big "if" ‑‑ that is not a matter for individual opinion. That is a matter for expert opinion, and all of the rules which Mr. Freiman has articulated would apply. I say you don't have to get that far but, if you were to get that far, that is where you would be. I say that either way you cannot compel this witness to come forward to deal with those issues.

What you have here is a situation where the request is beyond the scope of the intervention that was granted because it does not have a direct and substantial connection, which was the requirement put forward by this Tribunal. It is beyond the scope of this interested party's right to intervene. It is outside of the scope of section 13 as well. It also offends the rule on expert opinion evidence.

For all of those reasons, for each independently you can, I submit, not grant the subpoenas. I just observe that, if you are not convinced that it is necessary, I don't think you get to the stage of worrying about whether or not you should exercise your discretion one way or the other.

The last point I make ‑‑ and I submit that this is not something you have to get to in your determination because I think each of those other three reasons are enough on their own to dismiss this. I just observe that Mrs. Citron, our client, is 70 years old and she is not well. I make that submission because I feel obliged to say that, but I submit that you don't have to get that far in making a determination of whether or not she ought to be compelled to come forward to this Tribunal. I put that forward as a fourth point.

I don't have any other submissions unless the Tribunal has some questions for me or for my client in particular.

THE CHAIRPERSON: Thank you. Does any other counsel wish to speak? Mr. Earle, please.

MR. EARLE: Thank you, Mr. Chairman.

I would start by, again, adopting the submissions of Mr. Freiman and Ms Matheson with respect to their general comments on the applications. I don't want to take too much of your time, but I want to make some general comments with respect to the Mayor.

As I understood Mr. Fromm's application, he was suggesting that the relevance or necessity of calling the Mayor seems to stem, first of all, from the fact that he is the Mayor and that by virtue of his office he somehow has something to bring to this Tribunal and, secondly, as I understood, that he is an individual of some prominence in the community who also happens to be Jewish.

With respect to the issue of his relevance to this proceeding as Mayor, I think that has already been addressed to some extent by Mr. Freiman. At the time that this Complaint was brought, as you well know, in July 1996, the Mayor at that time was Barbara Hall. She has already testified before this Tribunal, and I would suggest that to have the present Mayor appear before this Tribunal is unnecessary and unduly repetitious and would be contrary both to the requirements of subsection 50(3) and also to the comments which you made in granting Mr. Fromm intervenor status to begin with at page 1112 of the transcript.

With respect to the question of necessity of his evidence either as Mayor or as an individual, the point has been made to you that subsection 13(1) talks first of all about exposing persons of a particular group to hatred and contempt. We are not talking about a complaint here where one individual was involved, and we are not talking about an effect here on persons within the identifiable group. In fact, it is more relevant to talk about the effect on persons outside that group. So one might argue that Barbara Hall's testimony is, in fact, the best testimony you are going to get, to the extent that you consider it relevant. To call the present Mayor, as a Jewish man, would serve no purpose.

Those are my submissions on the point. Thank you, Mr. Chairman.

THE CHAIRPERSON: Thank you, Mr. Earle. Mr. Richler, please.

MR. RICHLER: Thank you, Mr. Chairman.

Very briefly, the context I heard Mr. Fromm suggest with respect to Mr. Kayfetz being a relevant witness was that he was at one point the Chair of the Canadian Jewish Congress Committee on Community Relations and that he had some position with the Canadian Occupation Army in Germany following the Second World War.

I don't understand how the second point could possibly be relevant. As to the first, I am instructed that he was last Chair of that committee approximately 15 to 20 years ago.

Speaking more particularly, I only received notice, of course, of this application yesterday and have not had a chance to speak directly with Mr. Kayfetz. I have had an opportunity to get information from Mr. Kayfetz indirectly. He is a man in his seventies who has, I am told, several medical conditions which would preclude him from being put in a position of stress. Accordingly, he is extremely unwilling to testify. He would, of course, have to deal with a subpoena if a summons were issued.

However, he does have these medical conditions, particulars of which I do not yet have. I am told that, if required, I can obtain medical evidence that could be put before the Tribunal which would support the position that Mr. Kayfetz should not at this stage of his life be put in a stressful situation.

Quite obviously, Mr. Kayfetz does not want his medical condition made part of the public record, and he is very reluctant to have to collect that evidence, but that evidence will be available.

The position of Mr. Kayfetz is that we support everything that Mr. Freiman, Ms Matheson and the others have said so far this morning in opposition to the request. All of those submissions apply to Mr. Kayfetz.

If the Tribunal is disposed to consider issuing a summons with respect to Mr. Kayfetz, I would ask that we have some time within which we could collect the medical evidence that would satisfy the Tribunal that his concerns are well-placed.

Those are my submissions.

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

MR. KURZ: Mr. Chair, I have four very brief points which assume the arguments that my friends have made before and which I adopt. The points are as follows.

One is the necessity of the Tribunal considering the matter, which is more than a rubber stamp ‑‑ and I will speak very briefly about that; the high test of necessity; the fear of misuse of the power of subpoena; and, finally, what I call the subtext.

Mr. Freiman pointed out to you that section 50(3)(a) talks about the fact that the member or panel must consider it necessary to issue the subpoena. This is not an administrative function. It is not as if you go to an office and get a subpoena and fill in the name and serve it. Mr. Fromm has to convince you and you have to consider it, so that you have to make a decision and the decision will be based on whether you have decided that the matter is necessary.

In determining necessity, which is obviously a term that has been considered a lot recently, you have to consider whether there are other options available in order to get that information before you. It is, again, Mr. Fromm's responsibility to prove that to you. It is not something to simply be assumed in your considerations.

With regard to the power of subpoena, you have heard from Mr. Freiman his concern about the power of subpoena. My submission is that it is even more so when you are dealing with an Intervenor rather than a party with a direct interest in the matter or an Intervenor who does not have a direct interest in the matter to wield that kind of subpoena against what are clearly very unwilling witnesses, including elderly witnesses. It smacks very much more of unfairness than it would even if a party with a direct interest did so.

Finally, on the subtext of the matter, what I am asking you to consider is that in effect ‑‑ and I am putting it in the colloquial ‑‑ you don't want to turn these proceedings into a circus. Allowing Mr. Fromm, in effect, to run roughshod on these people and completely ignore their rights runs that risk, that kind of risk that you seek to avoid with runes like the truth being no defence and that a human rights proceeding is not to be a proceeding in which people's rights are trampled on. In effect, that is what happens if Mr. Fromm gets his way.

Thank you.

THE CHAIRPERSON: Mr. Fromm, do you have reply?

MR. FROMM: Mr. Chairman and Members of the Tribunal, I will address myself briefly to the objections raised by Mr. Freiman.

Section 50(3)(a) that was drawn to your attention says that you may issue a subpoena in order to compel evidence or documents or things that the member or panel considers necessary for a full hearing and consideration of the complaint.

I would submit to you that the evidence that we would be able to obtain from Ms Citron and from Mayor Lastman is indeed necessary for a full hearing. I find it instructive that Mr. Freiman himself introduced as a witness the former Mayor, Barbara Hall. He felt that her evidence as one of the Complainants, speaking on behalf of the Toronto Mayor's Committee on Community and Race Relations, was of some relevance.

I think a basic principle of Anglo-Saxon justice is that the accused has the right to face his accusers. I know that, in a sense, the Canadian Human Rights Commission is the accuser, but there were two Complainants, the Toronto Mayor's Committee on Community and Race Relations and Sabina Citron. I think the Respondent has a right to face those people. They signed a complaint indicating that they believed, and presumably had reason to believe, that section 13(1) had been violated.

Mr. Freiman saw fit to have Ms Hall testify. I may be misstating your observations but, as far as I could tell, she said that she really did not know that much about the Zundelsite, that she had seen a little bit of it. She certainly did not bring either a scientific or a legal perspective. A scientific perspective would certainly have inquired into all the pages of the Zundelsite, and that was not the case. A legal perspective would have weighed other matters. She said that, having seen the little bit that was presented to her, she drew certain conclusions.

It seems only fair to hear from the other Complainant. We hear that the other Complainant is elderly and so on. I suggest not too elderly to make complaints which, under our law, put the Respondent to tremendous expense and, I might say, the taxpayer to tremendous expense as well.

Once this process is put into motion, people's lives are affected. I think the Respondent and we as people interested in free speech have a right to probe why it was she thought the communications on the Zundelsite exposed people of Jewish faith to hatred or contempt. I would submit that she initiated this process. I think it is only fair that the Respondent and other interested people have an opportunity to probe this.

THE CHAIRPERSON: Are you under the impression that you would have a right to cross-examine her necessarily?

MR. FROMM: She would be my witness. Would I not have the right to question her?

THE CHAIRPERSON: You can ask her questions, but you would not be able to cross-examine her unless you could establish according to law that she was a hostile witness.

MR. FROMM: I am not sure I understand the difference between questioning her and cross-examining her.

THE CHAIRPERSON: There is a big difference. If you cannot cross-examine her, you will have to be satisfied with her answers, and you might just be supporting the Commission's case by asking those questions, which was the focus of your remarks as I understood them. You are not likely to obtain evidence from her that is going to help you, are you? She initiated this complaint, so I assume she is sympathetic to the notion that this complaint should succeed.

MR. FROMM: Indeed, but you may get a deeper understanding of the reasons that she feels this.

THE CHAIRPERSON: I don't think her reasons, subject to what my colleagues say, for laying the complaint are of any interest to us at all.

MR. FROMM: In the case of Mayor Lastman ‑‑

THE CHAIRPERSON: How many Mayors do we need to call? We have commented on the relevance of Mayor Hall's evidence, and we will deal with that in due course. How many Mayors do we want to hear from and to what end?

MR. FROMM: It is perhaps his misfortune to have inherited this baby, but he is the head of the Toronto Mayor's Committee on Community and Race Relations and presumably in some sense supports the complaint; otherwise, he perhaps would withdraw it.

It has been asserted that the only reason I wish to call him is because he is Jewish ‑‑ and I would argue that that is not the case at all ‑‑ and that he has no particular expertise other than being the Mayor of the City of Toronto. He may, in fact, not be an academic, but I would suggest that he holds something close to a Guinness Book of World Records in terms of longevity in municipal politics. He must be dong something right. He must have a pretty good street sense of what makes this city tick. I think his evidence and his expertise might indeed be able to assist the Tribunal in judging the social context.

It was suggested by Mr. Freiman that our brief was freedom of expression and that that had nothing to do with social context. According to the Tribunal's own ruling, freedom of expression could not be advanced, at least in this case, on the basis that what was said was true or plausible or likely true or that the same views were held by other people who were not considered to be promoting hatred.

However, in the ruling there was the indication that words had to be understood in a particular social context. It would seem to me that the immensely politically successful current Mayor of the City of Toronto, who obviously has his finger on the pulse of this city, might indeed be able to assist the Tribunal in establishing a social context.

THE CHAIRPERSON: Obviously, Mrs. Citron, the Mayor and Mr. Kayfetz are not willing witnesses from your point of view. You could not phone them up and say, "Come on down and give me a hand here."

MR. FROMM: I didn't do that, no.

THE CHAIRPERSON: And you wouldn't expect that you could do that; is that right? They are unwilling witnesses.

MR. FROMM: I would not expect the Mayor of Toronto ‑‑

THE CHAIRPERSON: What about Mr. David Jones, the first witness?

MR. FROMM: My understanding is that Mr. Jones, while strongly in favour of freedom of expression, does not want to be a witness for this particular Complainant.

THE CHAIRPERSON: Complete your remarks.

MR. FROMM: The section on compellability cited to you from "Expert Evidence: Law and Practice" in Seyfang v. Searle says:

"Cooke J. considered the circumstances in which an expert would be compelled to give evidence. To the extent that he is a witness to a fact in issue in the case, he is usually compellable."

It would be submission that, as the Complainant, Sabina Citron is a witness. She signed a complaint that such and such was the case. I think the Respondent and others interested in freedom of speech should have an opportunity to probe that. She, in effect, did what the Goddess of Discord did in Greek and Roman mythology. People were having a wedding party, and she took exception to not being invited and tossed the golden apple in inscribed "To the fairest", and the brawl was on. She signed the complaint, and immense expense has been incurred by the public and by the Respondent.

I might say, as I know you will do when you assess all the facts and dismiss the complaint, the winner will still not be the Respondent because he will not be able to recover costs, as he might in a libel or other civil actions. He still ends up the loser, and I think it is important to probe the state of mind and the motives and the beliefs of the person who initiated this complaint.

THE CHAIRPERSON: That is the essential reason why you want to call the Complainant, the motivation for laying the complaint?

MR. FROMM: The person swore out a complaint, presumably with evidence and knowledge that some of the postings on the Zundelsite are likely to promote hatred or contempt against an identifiable group, in this case the Jewish people. It seems to me that the Respondent and other interested people have the right to confront the Complainant.

THE CHAIRPERSON: Thank you, Mr. Fromm. Mr. Christie, please.

MR. CHRISTIE: In view of Mr. Fromm's difficulty in understanding some of the complexities that you brought to his attention in terms of rights of examination and cross-examination, I would like to say a few things about my friends' submissions.

First of all, by what right do they say that these are expert witnesses? Social context is not an expert matter. We live in society, and each of us ‑‑

THE CHAIRPERSON: It can be.

MR. CHRISTIE: It could be. Someone might claim expertise in social context, but one would be hard-pressed to find an expert in society. It is a very vague and general term. We have many experts in specific fields, but nobody that I know of qualifies as an expert in society or social context.

MEMBER DEVINS: Mr. Christie, if they are not experts, then of what assistance is their evidence?

MR. CHRISTIE: Let me finish.

Social context is something that everyone has a part in and experience. An aspect of social context can be demonstrated from a variety of perspectives, from factual knowledge, factual information.

If someone is speaking in the social context of a funeral, which was Mr. Fromm's first example, the people who were at the funeral could say it was a funeral. You don't need an expert in funerals to say that it was a funeral. It is a fact that bears upon and demonstrates a social context. The social context is the state of a funeral. The fact is that I was there. We were in a church or a mortuary or in a place where funerals are held, and it was in that spot that this happened. If it had happened in some other spot, it would be in a different context? What is the context? The factual circumstances in which the statement is uttered, and I don't think you need an expert to demonstrate that.

In my submission, I find it difficult to believe that there is any expert in the social context of society as a whole. The example of a funeral is a very limited one.

When we are speaking about this new application of section 13(1) ‑‑ and no one denies that this is to be a new application to what is beyond the scope of what most people think of as Canada ‑‑ then the social context becomes much, much broader. The social context of the complaint area, which is Toronto, is something that people who live here could say something about and should say something about.

If context is relevant ‑‑ and I suggest that the Tribunal has said very clearly that it is ‑‑ then it is certainly necessary to have some evidence. What evidence do you have?

THE CHAIRPERSON: What do you mean by a new application?

MR. CHRISTIE: Section 13(1) has never been applied to the Internet before, and section 13(1) has never been applied to the circumstance, which I hope has been pretty clearly demonstrated, that at least the Internet site is located outside of Canada. This is a new legal interpretation which is being sought to extend the jurisdiction of the Human Rights Commission and to extend the jurisdiction of the Act in ways that have never been applied, to a whole medium which has never been used before, a medium which many would contend is a new variety of communication. You have heard that type of evidence. You have not heard it all, but let me say this.

Who have you heard evidence from to demonstrate social context? A linguist from Alberta, a clever gentleman; a historian from New York City who speaks about the motifs of historical antisemitism, who doesn't know anything about the context of Toronto or of Canada really; Irene Zundel who really doesn't know much about anything other than how much she doesn't like Mr. Zundel; Barbara Hall who really was asked to find something in the text and spent some time looking and it wasn't very clear when that was over ‑‑ she didn't really say anything about social context that I recall; and then Mr. Cunningham who said he downloaded it from a certain site; and Mr. Angus who makes presentations and speaks about the Internet, and did so here very dramatically.

Social context has not been testified to by anybody that I recall. Really, context is something in which real human beings live and in which this complaint arises. That is what I understand social context to mean.

It is necessary, and it can only be repetitious if somebody said it before. My learned friends say this is repetitious. Well, who has testified about anything to do with the social context in which this complaint is alleged to arise in this city, either in the past when it arose or now? I recall no witness.

My learned friends say that it is the mandate of Mr. Fromm to raise the issue of free speech. We intend to argue that there is a conflict of values involved in this case and that free speech is an aspect which you have to consider in the social context. Say, for example, that we had an ongoing debate in which tempers are raised and words are uttered that in another context might be seen as productive of a different result. We have screaming matches and arguments where people get out of hand. If the social context is: We have heard these people scream at each other before and we are not impressed; we know they hate each other. Mrs. Citron hates Mr. Zundel, and Mr. Zundel hates Mrs. Citron, maybe. Mr. Zundel has had his house fire-bombed. Mr. Zundel has had a lot of things happen to him where the public ‑‑ not the Jewish community, but the public ‑‑ might say, "This is a man either overwrought or out of control, and we don't take it seriously." That is the social context.

What else is the social context? Can anyone tell me what social context means other than the facts in which the average citizen in which the complaint arises would understand the utterances that are alleged to breach section 13(1)? That must be social context.

My learned friends say that Mr. Fromm should have no right to raise social context and compel people to testify about social context against their will. Probably the best people to testify about social context would be those who would do so reluctantly and not out of any favouritism, because who would believe anyone who was in favour of Mr. Zundel? That is what they would argue if he had a witness who said what his views of the social context were and that he actually thought highly of Mr. Zundel. They would be the first people to jump up and down and say, "How can you believe these people? They are friends of this man." Well, that is one way to attack it.

Probably a more credible witness would be one who inadvertently and maybe contrary to what they intended revealed an animus which shows not that they or their motives or relevant, but that society generally would perceive that these are two hostile adversaries in a screaming match.

THE CHAIRPERSON: To the extent that social context is relevant, a witness in the category of an expert such as a sociologist who has done a study of what you are talking about would be a witness supportive of the theory that you propound.

MR. CHRISTIE: I am propounding an analysis that involves an inherent theory that society looks at people who conduct themselves in certain ways differently. I am not a sociologist. You say that is a theory, and I agree with you that it is a theory. It is what I would call a rational theory, and I might argue it from common sense. I might also call a sociologist, but I would still have to demonstrate the factual basis for that theory.

THE CHAIRPERSON: An expert who has made a study of it would establish the factual foundation to support his conclusions on the basis of supporting his opinion.

MR. CHRISTIE: With the greatest of respect, sir, I would suggest that experts cannot establish facts. They can only take assessed facts ‑‑ facts have to be proven independently of the expert on which the expert can base their opinion. R. v. Abbey made that clear in the Supreme Court of Canada. You cannot have a psychologist talk to a person who is mentally ill and say, "Because of my observations of them, I come to the conclusion that at the time of the offence they had these specific delusions." You have to prove the specific delusions, and then the psychiatrist can analyze those and say at that time, "Based on my expertise, that person would be in a state of mind ‑‑" which, of course, he would say.

THE CHAIRPERSON: Of course, based on the integrity of the assumptions.

MR. CHRISTIE: That is true; the integrity of the assumptions must be proven, and it is factual to prove those assumptions. It is factual to prove the social context in which circumstances exist when these utterances are made, if they are attributable to the Respondent in this case.

I know my friends were really effective in their arguments but, when you come down to looking at the difficulties this case presents, the social context is required to consider what is, in my submission, one of the most important issues: the issue of how far section 13(1) should go to restrict speech, because that is what it does every single time it applies. There is a balancing that has to take place, and the social context determines how we should measure and how we should assess the social impact that is, after all, what section 13(1) directs itself to, the social impact of words.

These can best be demonstrated by considering the people who made the complaint in that they can demonstrate not their motives, because I have heard what you say about that, but their participation, if any, in the exchange. If it is a total stranger making the complaint and there has never been any public debate between these parties before, one then sees a much more credible case, a case that is credible not because it is based upon some better motive but because the public would perceive differently a debate between the leaders of the Liberal Party and Conservative Party than they would see a comment made by someone who was powerful against a total stranger because of their race, religion or ethnic origin.

The public might very well perceive that the remarks to which Mrs. Citron takes issue, whatever they may be, are really part of a debate between those two parties or parties involved in a political process. They might identify themselves by their race, but it is not because of their race that the debate exists in the public perception. It is a controversy between some Germans and some Jews.

That is not to be, I would suggest, logically interpreted as demonstrating a context of hostility to all Jews that the public would perceive, or that any reasonable person in the public would acquire.

I don't know what level of perception Human Rights Tribunals normally take of society. Do we take it that the most susceptible person might acquire this phenomenon of hatred or contempt or ridicule? Do we take what might be a reasonable person? I would like to suggest that, objectively, it would be best to take the view of what effect this would have on reasonable people hearing this type of conversation or this communication.

MEMBER DEVINS: Mr. Christie, is the only way to get this evidence by compelling these witnesses to testify? I hear your argument with respect to relevance, but I guess I am grappling with whether ‑‑

MR. CHRISTIE: I can't answer that. I don't know whether there are other witnesses. Certainly, vis-à-vis Mrs. Citron, I can think of no more credible witness to demonstrate the existing state of affairs that is publicly known between Mrs. Citron and Mr. Zundel.

MEMBER DEVINS: If it publicly known, does that not imply that there are other witnesses who could testify to that?

MR. CHRISTIE: Not anyone with as much knowledge as Mrs. Citron of the actual controversy or conflicts between them.

The very fact is that probably Mrs. Citron would know more about it because it is not necessarily known in detail by the public at large, but there is a general perception. After a long period of time, after repetition in the media of charges and counter-charges between those individuals, it would be arguable that the average person sees this hostility in a context that is not necessarily racial or religious oriented, but personal.

If it is a personal conflict that is occurring that the public would perceive in the context in which it is made, then I am not so sure that you should find that it is productive or likely to expose anyone to hatred or contempt because of racial or ethnic origin.

Moving on, there is no suggestion that David Jones is reluctant. I don't know ‑‑

THE CHAIRPERSON: That is what Mr. Fromm said.

MR. CHRISTIE: Mr. Fromm did not say he was reluctant ‑‑ oh, to get involved in this case, yes. Reluctance in what sense?

THE CHAIRPERSON: He doesn't want to be here.

MR. CHRISTIE: Well, who does? I am sure none of us really does.

The fact of the matter is that reluctance is quite often expressed in terms of "I will come if you subpoena me." Most people don't want to be seen as volunteering. I wouldn't want to be seen as volunteering either.

THE CHAIRPERSON: I understood Mr. Fromm to have said that he did not want to be a witness in this case.

MR. CHRISTIE: Again, I suggest that it would be appropriate to say that he should not be compelled if he were an expert. Again, my learned friends say that his only possible function is as an expert. The social context of debate about the Internet and regulation and control of the Internet is a factual matter as to social context. It may not be a factual matter known to everyone, but it is certainly known to those who are involved in that debate, and he is.

I am not here to suggest that he should be called as an expert to express his opinions on what should and should not be the law, but if the state of circumstances in which we live today involves controversy and developments of regulation, then these are factual matters within his particular knowledge. He is involved as an advocate, I agree, of a particular point of view, but he would know the fact as to where the state of that controversy is.

Thank you.

MS MATHESON: Mr. Chairman, may I just ask this question? Mr. Christie has elaborated in a completely different way from the party seeking these subpoenas about one point. If the Tribunal wishes to go down that road, I have one responding point.

It was not something that Mr. Fromm stated, and I would suggest that it is irrelevant.

THE CHAIRPERSON: There were some fresh points in his discussion; I hope it can be brief.

MS MATHESON: Extraordinarily brief.

THE CHAIRPERSON: Go ahead.

MS MATHESON: In my submission, the important statements were those made by Mr. Fromm at the outset and at the conclusion of his reply, which were that the Respondent has a right to confront the Complainant, which is entirely inappropriate.

Mr. Christie just now made a lengthy submission about there being no more credible a witness than Mrs. Citron with regard to a public understanding of her relationship with Mr. Zundel. I only note the last thing that Mr. Christie said. Toward the end of his submissions he said that their relationship was not known in detail by the public at large.

I simply say this. Mrs. Citron is precisely the wrong person to have come and testify about what the public, meaning not her, might appreciate or not appreciate about her relationship with Mr. Zundel. She is exactly the wrong person for that purpose.

I make another observation. To the extent that this is relevant, which I doubt, there is another person involved in that, which is Mr. Zundel. There is no doubt that Mr. Christie, if he wishes to, on instructions from his client, can bring that evidence forward, to which I expect I would strongly object when the time comes. I just want to make that additional comment.

MR. FREIMAN: If I could have just one minute, it will not detain the Tribunal at all.

I simply wish to point out that we start with social context and within two minutes we get back to motive as to why Ms Citron brought it, or we get back to expert evidence as to what the state of society is all about.

In addition to that, which I think was patent in Mr. Christie's remarks, I note that we are not dealing here with a complaint about what Mr. Zundel said about Sabina Citron. We are dealing here with a complaint about what Mr. Zundel said about Jewish people. It is not a leap of logic, not even a pole vault of logic, to get from one to the other. It is a ballistic missile into the ionosphere to get from the issue of Mr. Zundel's remarks about the Jewish people to a context which Mr. Christie says is not known to anyone anyway between Mr. Zundel and Ms Citron.

Either it is known to everyone, in which case it is open and notorious and evidence can be brought from anywhere, or it is not known to anyone except Mr. Zundel and Ms Citron, in which case it cannot be relevant.

The same with Mr. Jones' potential evidence. Either it is known to everyone or it is not known to anyone. In either case, there is no assistance from the witness.

THE CHAIRPERSON: We will take our morning break now.

‑‑- Short Recess at 11:00 a.m.

‑‑- Upon resuming at 11:25 a.m.

MR. CHRISTIE: Could I ask a couple of points of clarification.

First of all, we are a little bit confused about the state of affairs as to our request for directions yesterday. I know there was a suggestion and I heard the words ‑‑ and I don't have them verbatim ‑‑ from my friend that, as far as the amendments to the remedies of compensation and punishment were concerned, the Commission took the view that they were not retroactive. I heard those words. I think what that meant was that the Commission ‑‑ I think my friend meant to say that he was of the view that they would not be applied retroactively. He was not saying they were not retrospective. If they retrospective, they could apply, notwithstanding that they were legislated after.

I leave that for a moment. To me, it is at least slightly confusing, and maybe it is my ignorance. The problem I have is: If the first view is what the Commission intended, could we take it from the exchange that you had at that time that it is your view and your ruling that you will not be applying the amended remedies of compensation and punishment?

THE CHAIRPERSON: I think the Tribunal should express that in some language, and I propose to do that on Thursday morning.

With respect to the argument we just heard on the subpoenas, we will reserve our ruling on that until Thursday morning as well.

MR. CHRISTIE: Thank you. I take it then that we not consider being bound by the timetable for submissions which you had suggested earlier.

THE CHAIRPERSON: I think that is the case. We can ignore that, subject to what we say in our ruling ‑‑ and I cannot anticipate everything that we might say.

MR. CHRISTIE: Could I just make one further point. We have to raise at the first convenient time a motion which we would like to give you a very brief outline of at the moment.

As a result of the amendments, particularly section 48.1(2) which sets out qualifications for the new Canadian Human Rights Tribunal, we will be seeking to raise at a time convenient to yourselves a motion based on a reasonable apprehension of institutional bias arising out of the wording of that section which says that the members who have been appointed ‑‑ and that includes, at least I am sure of, yourself, sir, and Ms Devins, and I think it is true, too, of Mr. Jain. You have been reappointed as of July 18, 1998 under the new Canadian Human Rights Tribunal and, therefore, I take the legislation to mean that you have met the qualifications.

The qualifications have been changed from what used to be the Human Rights Tribunal Panel, in section 48.1(2), to these words, that you must have experience, expertise, interest in and sensitivity to human rights.

Our position is that, in balancing the conflicting values of individual liberty and human rights, the institutional bias created by the qualifications is something we would like to argue. I don't intend to argue that now, but I would like you to direct me, if you would, to say when you would be willing to hear us on that point.

THE CHAIRPERSON: Obviously, I have not consulted with my colleagues, but I would suggest that in that regard we would simply follow the practice direction, reference to which we made yesterday.

MR. CHRISTIE: That will be sometime in December then.

THE CHAIRPERSON: Yes.

MR. CHRISTIE: With time limits that you could tell us about later with regard to submissions, if you would.

THE CHAIRPERSON: If you have a motion to bring, in conformity with the practice direction you would prepare the motion and the grounds for the motion, the authorities and so on. We would like counsel, as in all motions, to assist us with an outline of your argument with the motion.

MR. CHRISTIE: Thank you for the direction.

In respect of the document that Mr. Klatt endeavoured to introduce yesterday, my friend suggested that it was 1 of 9 or 1 or 14, I am not sure which. We have at least 14 pages of that now and. In our view, it is surplus but, if my friends want it, we have it. If Mr. Klatt could take the stand, I could introduce it through him.

MR. FREIMAN: Before we do that, I think it was stated yesterday that Mr. Christie would have an answer for us this morning with regard to his plans for further witnesses. This would be a very opportune time, so that the Commission and others could prepare for further evidence.

THE CHAIRPERSON: Let's begin with Mr. Klatt. How long do you think you will be with him, bearing in mind that we will not be sitting tomorrow?

MR. CHRISTIE: I anticipate that probably I will be the remainder of the day in-chief, but it is hard to predict.

THE CHAIRPERSON: Mr. Freiman, what do you say?

MR. FREIMAN: I expect a half-day in cross-examination.

THE CHAIRPERSON: Is there anyone else who would be much more than that day with Mr. Klatt altogether?

MR. KURZ: I may be an hour.

THE CHAIRPERSON: Will you have another witness available on Thursday?

MR. CHRISTIE: At the moment I am not sure which one.

MR. KURZ: We were given notice of a Karl Rupert as the next witness, and that is the only notice that we received, Mr. Chair.

MR. CHRISTIE: He is present and he would be available. You will have to forgive me; I am having to accomplish re-entry from the ionosphere and I may be out of touch with my clients. Mr. Freiman put me there.

THE CHAIRPERSON: Let's assume, then, that Mr. Rupert would be called as the next witness, following Mr. Klatt.

MR. CHRISTIE: I think that is a reasonable assumption, barring unforeseen changes.

THE CHAIRPERSON: With the reasonable assumption about the duration of his evidence, it looks like we will have a day and a little bit left.

MR. CHRISTIE: I would not expect that his evidence would take more than half a day.

MR. FREIMAN: I think it is highly unlikely that there will be much cross-examination, if any, of Mr. Rupert.

THE CHAIRPERSON: These times are extremely valuable, as we have said frequently. We will deal with Mr. Rupert, and then there will be another witness, I take it, to take us to the end of evidence on Friday?

MR. CHRISTIE: I am sure there would be.

MR. FREIMAN: Who?

MR. CHRISTIE: I can't tell you; I don't know at the moment.

THE CHAIRPERSON: Will you know by 2:30?

MR. CHRISTIE: I can try. I will do my best.

In regard to that, I have to ask one favour. There is a Supreme Court judge in British Columbia who wants me to be on a pre-trial conference at 12:30, 9:30 their time, and I have arranged to do it by cell phone. I don't know how long it will take.

THE CHAIRPERSON: We will recess for lunch at 12:30 then.

MR. CHRISTIE: Thank you.

THE CHAIRPERSON: Ms Matheson, please.

MS MATHESON: Mr. Chairman, I just observe that Mr. Christie represented yesterday to the Tribunal that we would learn at 9:30 this morning who his witnesses would be. I am prepared to wait until 2:30, but I think it is only fair that we hear at 2:30 who they are going to be.

THE CHAIRPERSON: I understood that he is going to do that.

MEMBER OF THE AUDIENCE: Sir, could I ask a question?

THE CHAIRPERSON: What is your question?

MEMBER OF THE AUDIENCE: You mentioned that there was something very valuable, and I did not understand what that was.

THE CHAIRPERSON: Time, sir.

MEMBER OF THE AUDIENCE: Thank you, sir.

MR. KURZ: Mr. Chairman, we are going to be at the end of this week in the same position when we come back again in December, wondering who Mr. Christie's witnesses are. I ask, through you, that we get notice of that information as well so that we are not in the same position on the first day that we come back here in December. Frankly, it appears that without your assistance we will never get this kind of information.

THE CHAIRPERSON: I hope we will know very clearly what the order of things is going to be at the beginning of December.

RESUMED: BERNARD KLATT

MR. CHRISTIE:

Q. Mr. Klatt, yesterday we were considering the information you had from MCI, and Mr. Freiman was of the view that he wanted to see the rest of the pages. What was the page number that you were referring to? Was that page 9?

A. Yes, page 9 was the page that we were looking at yesterday.

Q. Have you included now all the other pages that are in that particular publication?

A. This was from a slide presentation of 14 pages in total.

Q. So this is now the total presentation; is that correct?

A. That was the complete extent of the document.

Q. In regard to your opinion, does it confirm your understanding of the relationship between the Internet and the switched net?

A. Yes, it is an accurate portrayal of the point that we were trying to make yesterday, where the Internet is not synonymous with the telephone network and the telephone network is viewed as being a separate network from the Internet.

MR. CHRISTIE: Could we ask to have this marked, then.

THE CHAIRPERSON: Is there any objection?

MR. FREIMAN: No.

THE REGISTRAR: Page 9 was marked as R-32.

THE CHAIRPERSON: We will mark this with a new number.

THE REGISTRAR: The 14-page document will be marked as R-33.

EXHIBIT NO. R-33: Document entitled: MCI Panel Session: Does Web Telephony Have The Same Potential As The Web?", dated April 2, 1998

MR. CHRISTIE:

Q. What I would like to do is keep your evidence focused on the opinion of Mr. Angus and resume consideration of Mr. Angus' evidence.

Roughly where we left off was at page 1120. You gave evidence about the nature of the web server and the web browser, whether one was active and one was passive, and you gave your evidence on that point. We dealt with Mr. Angus' view that they were both active. Is that correct, sir?

A. Those are the points that we discussed. In my experience and opinion, to characterize the web server as an active component of the Internet is incorrect, for the reasons that we previously discussed.

THE CHAIRPERSON: Would you raise your voice a little, please.

MR. CHRISTIE:

Q. What can you tell us about the origins of the World Wide Web?

A. The concept was developed by a gentleman known an Tim Berners-Lee who worked at the CERN Institute in Switzerland.

Q. What was CERN?

A. CERN is a research institute in, I believe, Bern, Switzerland.

Q. What problems were they trying to solve at that time?

A. As a research institute, they were engaged in various types of information exchange, primarily textual documents, where they would need to compare research papers from other researchers working in different facilities. The Internet was being used, but it was not as convenient as they would like because e-mail and file transfer protocols did not serve a very useful and worthwhile purpose for what they were designed to do. In their particular type of research work they found it would be advantageous to be able to refer to footnotes or documents containing relevant information, and that facility did not exist in e-mail or file transfer protocols that were available at that time.

This gentleman came up with the concept of being able to use this hypertext where you can encode a term or a word or a sentence to be used as an activation point to bring up additional material that would be relevant to that particular word or concept in a different document.

Q. What is HTTP and HTML?

A. Those acronyms refer to hypertext transfer protocol and hypertext markup language, the emphasis being on the textual nature. It is not an audio transfer protocol; it is not a method for controlling audio information that is presented.

Q. How do the terms HTTP and HTML relate to the Zundelsite?

A. The Zundelsite does not communicate telephonically because there is no transfer of sound information. There is no sound information stored on the Zundelsite.

Q. Does it use HTTP and HTML?

A. Yes, because it does transfer text documents.

Q. Does Internet telephony use HTTP and HTML?

A. Some of the applications in Internet telephony can make use of a web browser which can present a user interface that contains text and graphics information. The actual protocols that transfer the encoded voice across the Internet are not HTTP.

Q. Are they HTML?

A. No.

Q. So they are neither HTTP nor HTML?

A. No. That is an area of emergent standards that is not yet completely defined. It is in the process of coming close to being defined.

Q. How would you define the Zundelsite? What is the Zundelsite?

A. It is a fairly typical web site in that it contains a large number of text documents and a certain number of graphics and enriched files.

Q. What applications does it use?

A. The web server site itself would use the applications that are available through the server, webcom, such as the hypertext transfer protocol which itself is not an application, but it is a method for transferring the information from the Zundelsite to the requesting client on their personal computer browser.

Q. Does Internet telephony use any of the applications of the Zundelsite?

A. The Zundelsite does not use any Internet telephony applications.

THE CHAIRPERSON: How do you know that?

THE WITNESS: From the material that is submitted as, I believe, HR-2.

THE CHAIRPERSON: This is not something that you, from your own observation, can conclude?

THE WITNESS: Yes. By examining the Zundelsite web site documents, you can see that there is no Internet telephony implemented.

THE CHAIRPERSON: I see.

MR. CHRISTIE:

Q. Could we turn to page 1131 in the testimony of Mr. Angus, at lines 9 to 14. Mr. Angus says:

"The whole purpose of HTTP which creates a web site is to enable messages to be sent on request. The whole purpose of coding something in HTML is to make sure that it can be read. If somebody codes something in HTML and puts it on a server that has HTTP on it, I would have to assume that they want it read."

Can you comment on that?

A. Yes. He is making an assumption, and the assumption is that they want it read. There are other purposes and rationales for putting information on a web server. The assumption implies that they want everybody to read it, and that is not necessarily the case.

There are many web page applications that use a password for access to the information. For example, the vendors that we deal with in our computer business have web pages that are only accessible if we enter a valid password. To assume that just because there is a web page it is implied that everybody will be able to read it is not accurate.

There are other reasons for putting information on a web server that would not imply intent for having everyone read it. For example, in a case where a person does a fair amount of travelling and they want to be able to have access to particular information that they need conveniently, since Internet access is widely available in just about every populated area, instead of taking that information along with them, they can upload it to a web site and be able to access that information. Typically, it is stored under a file name that is not linked from any other document. The person who wants to access it would have to know the actual document name and complete web address in order to access that document.

Just because a document is on a web server does not imply that the intent was for everybody to be able to read it.

Q. On the next page Mr. Angus has said that, although hits don't signify visits but they signify documents looked at and that that might not be a reflection of the number of visits. Does the activity of what appears on a computer terminal to be a downloading from a web site necessarily come from a web site?

A. I think you are asking regarding hits on a web site. The term "hit" ‑‑ what the web site would be able to count is the number of times that particular document was transferred from that server to some requesting site. The Internet is populated with what is known as caching web server.

Q. How would you spell "caching" in this case? Does that mean money?

A. No, it refers to the term "cache", a cache or a storage place.

Q. What is web caching.

A. Web caching is a technique that is used for a variety of purposes. The most common purpose is to make information available quicker to requesters that are closer on the network instead of having to go back to the original source to get a document that is being requested.

We have a handout that describes web caching. The implications of web caching are significant and relevant to the material we are discussing.

Q. In this proceeding Mr. Angus at one point attached his computer to a telecommunications line and called it a telephone and purported to dial up the Zundelsite. Was he necessarily in communication with the authentic Zundelsite?

A. Not necessarily, unless he has some way of proving that there is no web caching occurring between his ISP, or that his ISP does not use web caching from the Zundelsite.

Q. I am now producing to you a document called "Cashing in on Caching." I want to ask you some questions about that. It begins with page 1 of 8, and there are eight pages.

In relation to this document, "Cashing in on Caching," could you tell us whether in terms of your ‑‑ have you read it?

A. Not in great detail, but the part that I think is most useful is the diagram shown near the bottom of page 4.

THE CHAIRPERSON: What is the origin of this?

THE WITNESS: The actual Internet site is shown there at the bottom of each page. Jon Knight and Martin Hamilton are experienced individuals in the field of Internet web caching.

THE CHAIRPERSON: Where did this publication come from? Whose publication is it?

THE WITNESS: It is from the United Kingdom. That is where a lot of web caching development is done.

MR. CHRISTIE:

Q. Are the authors Jon Knight and Martin Hamilton?

A. Correct.

Q. Do you regard them as competent experts in the field of web caching?

A. They are considered as knowledgeable and authoritative individuals in that field.

Q. You asked us to look at page 4 of 8. Why did you do that? Why do we benefit from looking at that?

A. It provides a visual representation of how web caching can be and is organized on the Internet.

Q. Can you describe what the diagram depicts?

A. Yes. If we consider the very bottom of the diagram, where the little dark circles are shown, those represent typical users with typically a personal computer and a web browser. The lighter grey blocks above them would typically represent their local Internet Service Provider. The darker blocks above the local Internet Service Providers would be what would be referred to as regional cache sites.

Q. And above that?

A. There is also a block in the middle of the three would be considered as a national cache site.

Q. In relation to these sites, what do they hold and how do they acquire it?

A. One way to explain web caching is to take an example where a user on the very bottom row of the diagram requests a document from a remote web server. For the sake of discussion, let's label the top right-most block as an Internet server. It could be the Zundelsite or it could be some other remote web site somewhere on the Internet.

When the user makes a request for that particular document, that request is first checked at the local Internet Service Provider's web caching machine to see if that request can be filled locally. If the document has been previously requested by some other user of that local Internet Service Provider, that copy that is already at the Internet Service Provider would be the document sent to the requester.

If that local cache does not contain a copy of the document requested, it will check with the next cache server in its hierarchy. If the document is not found in any of the cache servers, only then is it requested from the original site.

THE CHAIRPERSON: The ultimate source is always the same?

THE WITNESS: Correct, but there are further implications.

MR. CHRISTIE:

Q. The implications which we want to discuss are these.

In a cache situation is the authenticity of the document downloaded necessarily established?

A. No, because the original source document can be changed or modified or disappear without any of what I would call down-line caches' copy being changed.

Q. How long do these caches normally last?

A. The caching algorithms have a variety of different retention times. The simplest way to describe it is that documents that are not requested for a long time are removed from the cache to make room for newer requested documents that have not been in the cache previously. The retention time varies based on the parameters set by the cache operator.

Q. In relation to these documents, if a document is frequently requested, does that affect its likelihood of being received from a cache?

A. Yes. Documents that are frequently requested would rarely be requested from the original site.

MEMBER DEVINS: What do ISPs do, then, to ensure that, if a document has been updated, the updated version, which presumably has been requested, is what is sent?

THE WITNESS: They often have various methods of attempting to maintain current or fresh copies. A lot of web documents are encoded with what is referred to as a "time to live" parameter. The time-to-live parameter specifies how long that document is considered to be valid.

A typical example would be newspaper publications that publish a web page every day. The time-to-live parameter would typically be set for 24 hours to indicate that that document would be only valid for 24 hours in the context of a web cache site. I have seen other documents with retention times that are well into the next century, on the assumption that there is no expectation that they would ever change.

MEMBER DEVINS: If it does, what happens?

THE WITNESS: Typically, the document would not sit in the server's cache for that long a time. The cache servers, once they are up and running, with a typical user population, have what they call a hit rate ‑‑ in other words, being able to successfully serve the document from their local cache only 30 or 40 per cent of the time. Over a relatively indeterminate amount of time ‑‑ it could be hours or days ‑‑ new information comes in to replace documents that have not been requested. A document which has a 10-year retention time would get flushed out of the cache sooner or later.

MR. CHRISTIE:

Q. Would it be sooner if there was a frequent request for it, or later?

A. If a document is requested often, it will tend to stay in the cache indefinitely.

Q. And it is not necessarily updated then?

A. Not unless it has an expiration time associated with it.

Q. So then the expiration time becomes a factor in how current that document is.

A. That is correct.

Q. Is there any standard operating procedure for establishing the duration of retention?

A. That is entirely up to both the author of the document, who can choose to code a retention time parameter with it, and the operator the various web caches that are intermediate between the original host site and the browser that is requesting it.

Q. So at any time that one appears to what is called download a document, can you be sure of the authenticity in relation to the actual web site?

A. Not easily. That is an area of considerable dispute and discussion and concern amongst webmasters and Internet Service Providers and people who advertise on the web. Advertising revenue is based on hits. For example, America On-Line runs a very large web cache for their user base; it is somewhere in the order of six million users. If America On-Line had to go off and get a fresh copy of each popular document that their six million subscribers request on a regular basis, they would need much higher bandwidth connections to the Internet than they currently do. So there is economic incentive for the Internet Service Providers to minimize the bandwidth they have to pay for from their upstream providers.

The caching greatly influences the hit counts that the Internet Service Providers can show their advertisers in terms of how much ad impressions are being seen. These numbers are in constant dispute because America On-Line and other large Internet Service Providers don't go back and request the ad each time a user requests it in their browser activity.

Q. To relate this to the Zundelsite, in any of the presentations we have heard of what is alleged to be there is there any way to determine what degree of certainty there is that what appears to come from a web server is authentic at that time?

A. As I mentioned, it is not easy to determine that, when you request a document, you are actually getting the document from the web address that you think you are getting it from. You may be getting an older copy from a cache somewhere in the hierarchy between the original source and your browser.

Q. How many potential caches would there be in a possible link between, say, Toronto and California?

A. It would entirely depend on the Internet Service Provider that the user is connecting to. In North America web caching is not as prevalent as it is in lesser-developed areas where bandwidth connections are much more expensive.

Q. Is it likely or unlikely that there would be caching in a link between here and California?

A. The likelihood would strictly depend on the Internet Service Provider that is in use and whether or not there is any caching hierarchy associated with that Internet Service Provider. One I know of, which is a good example, is America On-Line. There are Internet Service Providers in Toronto that do employ web caching servers.

Q. How long does it take to remove or change the configuration of any part of a site in California?

A. It can be changed whenever the author chooses to upload modified, new or changed content.

Q. How long does it take to do it?

A. The size of the file would determine the length of time to transmit the document. It could be done for relatively short documents in a few minutes.

Q. Can you compare this to the phenomenon of mirror sites?

A. In some respects, web caching has some similarities to mirror sites in that mirror sites typically are considered to contain a complete copy of a particular web site; whereas caching servers typically would only contain a partial copy of the most popular or most recently requested documents from that particular web site in question.

Q. Is there any comparison in terms of permanence between a web site and a caching site?

A. I think you mean mirror site?

Q. Yes, a mirror site, sorry.

A. The documents on a mirror site would be considered much more permanent in that they would not be flushed out or changed or modified unless the maintainer of the mirror site had some automated procedure to go and check with the definitive source web site or had a regularly-scheduled update process in place to maintain an accurate mirror.

Q. Does the creator of a web site have any control over the creation of mirror sites?

A. Typically not, because mirror sites can be set up by anybody who chooses to do so.

Q. Do mirror sites get updated of necessity or always?

A. No. One of the complaints regarding mirror sites is that mirror sites often are not maintained as an up-to-date, current reflection of what the authoritative or host sites would contain.

Q. When one seeks information that comes from a cache along the web and one downloads and there is a web address on it, would the fact that it is the web address of the original web site signify that it necessarily came from the original web site?

A. It would imply that the document at one time in that form was resident on that site.

Q. The question is: Would it necessarily come from that site because it had that address?

A. Not in that specific instance, no.

Q. So the fact that a document has a web site address that purports to be, for instance, the Zundelsite, and it is received off an Internet communication, does it necessarily mean that that has come from the Zundelsite at that moment?

A. At that moment it is entirely possible that it could have come from either the local cache or one of the regional caches that a previous user had requested at some earlier time.

Q. Could it come from a mirror site?

A. I suppose it is possible, but it is somewhat non-standard to set it up that way.

THE CHAIRPERSON: Excuse me, Mr. Christie. Just so I understand, the possibility you are raising is that a document that purports to come from the Zundelsite may be stale-dated; it is not the latest edition.

THE WITNESS: That is correct.

THE CHAIRPERSON: Or, on the other hand, it may be possibly the subject of mischief in that someone would change the content of that document, at the other extreme? That is a possibility?

THE WITNESS: That would also be a possibility.

MR. CHRISTIE:

Q. Is it possible, then, to have documents that purport to be authentic arriving from the Internet that really are not?

A. That is certainly a possibility.

Q. To the degree that we might know that they are or they are not authentic, what is the method to make that determination?

A. You would have to investigate whether or not there is web caching occurring between your browser and the web site in question.

Q. In your opinion, is it likely that there is web caching involved in communications in the Toronto ISPs?

A. I know there are several ISPs in the Toronto area that do implement web caching.

Q. Would a user know whether the document came from the cache or from the original site by looking at it?

A. A typical end user would not be able to determine where it was sourced from.

Q. Or whether it was current and authentic?

A. They certainly would not know how old it was, no.

Q. When I say "authentic," I mean that it was an accurate representation of the original site. Would they be able to determine authenticity as opposed to how old it was?

A. Not that I am aware of.

MEMBER DEVINS: Mr. Christie, I am not sure that I understand the evidence.

Mr. Klatt, the mischief that my colleague asked about, in terms of changing the document, I understood from your evidence that that is possible perhaps on a mirror site but does not happen in caching because in caching all that happens is that the service provider in effect stores the document in their filing cabinet and then sends it out when somebody else asks for it. It is just a simpler way for them to retrieve and send out the information. So the mischief issue does not apply in a caching situation, does it?

THE WITNESS: Not too likely. It is theoretically possible that the web cache operator could go in and modify a cached document.

MEMBER DEVINS: But the likelihood is ‑‑

THE WITNESS: Pretty slim.

MEMBER DEVINS: Thank you. I just wanted to make sure I understood the difference between a mirror and a caching situation.

MEMBER JAIN: On a mirror site you could conceivably have an edited or changed or mischief type of situation?

THE WITNESS: Yes, that would certainly be possible.

MEMBER JAIN: On the mirror site, you also indicated that the document is kept there for much longer.

THE WITNESS: Yes. It is up to the discretion of the web site maintainer for that mirror site as to how long they would choose to do it. They sometimes choose to only do partial mirrors or they may only choose to mirror a certain portion of the content. They may choose not to mirror large graphic files; they may choose to mirror only text files. They may choose to only mirror a portion of the original site.

It is certainly entirely possible that the maintainer of the mirror site could choose to go in and delete portions or modify documents if they were motivated to do so.

MEMBER JAIN: How do they get from the web site to the Internet? I know you have explained it, but I want to be clear on that.

THE WITNESS: You mean an example of how a document gets from the Zundelsite to the user who sees it on their computer in a caching environment?

MEMBER JAIN: Yes.

THE WITNESS: Let's start from the beginning.

Suppose a new document is uploaded to the Zundelsite. This document has never been requested anywhere on the Internet before. It is a brand new document that has just arrived there.

Another web page would have a link to that document, and it would say something like "Today's Zgram" or "The latest Zgram." That link would then point to this newly uploaded document.

MR. CHRISTIE:

Q. Is this a web browser requesting a document?

A. I am describing the scenario where this could occur.

The user would call up the page that has the link to the latest Zgrams, and they would click on "Today's Zgram." That would then initiate the first request for this newly uploaded document. That document would then travel through the hierarchy of web caches to the first initial requester of that document. It would then populate the caches in that hierarchy. Subsequent requests for that document from other users throughout the Internet, beneath that caching hierarchy, depending on the position in their caching hierarchy, would retrieve a copy from one of the caches. They would not be retrieving the document from the Zundelsite.

MEMBER JAIN: How precise do you have to be to request that document? Do you have to give the date; do you have to give the title, the author, et cetera?

THE WITNESS: No, not in that context. It is merely just clicking on a link, clicking on a highlighted piece of text. Or, if the person knew the specific web address, they could type in the full web address, but that is not as common because it takes more work than a simple mouse click.

MEMBER JAIN: Thank you.

MEMBER DEVINS: Is there any way a user can bypass the caching? If I want to make sure I am getting the original goods, is there any way that I can do that as a user?

THE WITNESS: The answer is both yes and no. It all depends on how the cache site operators have configured their caching systems to work. There is what is referred to as a cache bypass option that can be set up so that users who don't trust the copy that they are getting from their local ISP and say, "I don't care what you have in your cache that matches this document name; go to the original source. Ignore what is in the cache and get me the original copy from the original site." Some web caching servers are set up that way.

When we were running our Internet Service Provider business, our cache was configured so that the user did have the option to bypass the local web cache and go directly to the original source.

Many web caching servers are configured so that that option is either ignored or not available to users. Typically, in Internet environments where the cost of the telecommunication link to their upstream Internet provider is relatively expensive, that option just is not made available to users.

MEMBER JAIN: How do you know that the original is the original?

THE WITNESS: In terms of the document on the web, the only document that can be considered the original is the one that is physically resident, in our scenario, on the Zundelsite. That is the only document that can be considered authoritative as the original.

MEMBER JAIN: Thank you.

MR. CHRISTIE:

Q. One question I intended to ask and I don't think I have. Is there any way that an end user can be alerted to the fact, by looking at the product that they see either on their screen or printed out on their printer, that they are receiving a cache document as opposed to an authentic or original one?

A. No, there is not. There is no visible information to indicate how old that document is.

Q. Or whether it was a cache source or an original source?

A. No, there is no indication that indicates that it was supplied from a cache or from the original site.

Q. Are you familiar with the controversy that was involved with the Zundelsite in relation to the German government's attempt to shut out the Zundelsite from access in Germany?

A. Only in a very limited sense. I am not familiar with what attempts were made in terms of technical details as to what attempts were made to try to block it.

Q. I am not interested in the technical attempts to block it, but the Internet response in the United States to that. Are you familiar with what response there was in the United States to that attempt?

A. To some extent, yes.

Q. Can you describe what occurred, to your knowledge, in response to that attempt?

A. The attempt by the German government to restrict access or to deny access to that web site significantly offended the sensibilities of a large portion of the Internet community. The Internet philosophy and background, to a large extent, is a cultural product of the people who developed and maintained and extended the capability of the Internet.

A large portion of Internet fundamental development was done by software engineers and hardware engineers in the California area, and specifically a lot of the software coding is done at UC Berkeley. Perhaps some of us can remember the Free Speech Movement that originated at UC Berkeley campus. That philosophy and academic environment were free inquiry and academic freedom which was valued and carried over into the Internet environment to a large extent.

Q. What did you observe in relation to that attitude or point of view that occurred as a result?

A. My observations were that a number of Internet mirror sites were set up at large universities that mirrored the content of the Zundelsite to make it available because the German government, to my understanding, attempted to block access to webcom.

Q. What effect would that have on German subscribers to the Internet?

A. It not only blocked access to the Zundelsite; it also blocked access to the 1,500 other web sites that webcom maintained on that server. By creating numerous mirror sites, a person who was motivated to do so could easily access the documents from these other mirror sites because the German government had not seen fit to block access to the universities that were making these mirror sites.

Q. If they endeavoured to block access to the mirror sites, what would be the impact on a German subscriber to such activity?

A. They would not be able to access them, but it would cause economic disruption in the sense that it would disrupt the research activities and communication efforts that were being done between Germany and North America. The fact is that it was causing them more harm than their perceived attempt to do good.

Q. Are you aware of the development of this symbol, this blue ribbon, that is associated with that?

A. To some extent. That, to my knowledge, is the symbol of the Electronic Frontier Foundation in the United States, which uses it as their symbol to indicate support for the concept of freedom of speech on the Internet.

Q. Did that have any relationship to the controversy, shall we call it, with the Zundelsite documents?

A. Yes. Many of the mirror sites chose to display graphic pictures depicting the blue ribbon symbol for free speech on the Internet.

Q. Whoever is the author and controller ‑‑ and that is always one of the central issues in this case ‑‑ of the Zundelsite, would they have any control over the creation of all these mirror sites, and could they demand that they be updated and accurately reflect the authentic original in any way?

A. They could make the demand, but it would be entirely up to the discretion of the person maintaining the mirror sites whether or not they chose to do so.

Q. If in a hypothetical situation a government body in Canada were to determine that Mr. Zundel was responsible for the Zundelsite and to determine that the Zundelsite must disappear from the Internet, or whatever that might determine, could mischievous people or even friendly people create mirrors that would exist even if the authentic and original site was terminated?

A. Very easily. In fact, it probably be a an act of encouragement to a number of web sites to do just that.

Q. Observing as you have the development of these disputes, have you noticed any tendencies of universities and academics in the United States vis-à-vis attempts to discontinue access to certain web sites? Do they have any propensities that you have observed?

A. Are you asking if universities try to deny access to particular web sites?

Q. I am sorry, my question was obviously obscure. In their reaction to the Zundelsite attempts by the German government, have you observed any of their attitudes vis-à-vis other attempts to restrict access to certain web sites?

A. It is fairly common that university web site operators will mirror a variety of different web sites that are under attack in various parts of the world. Netherlands is a fairly friendly jurisdiction for web site content. In our consulting business we have recommended Netherlands as the web site for individuals who were experiencing difficulty in hosting their content in the United States.

Q. I want to get to this question. Are you familiar with the processes of restricting access to the Internet in, for example, Singapore?

A. To some extent; I am not sure how current my knowledge is. My most recent understanding is that in Singapore all Internet Service Providers are required to have a government licence, which is not the case in most parts of the world. In Singapore unlicensed Internet Service Providers have been raided by the police and had equipment confiscated and were shut down.

Q. How do they control access to the Internet in Singapore, to your knowledge?

A. The licensed ISPs are required to connect to a government-run caching web server which, in addition to the function of a caching web server that I previously mentioned, also maintain a list of prohibited web site addresses that are forbidden to be passed on to subscribers in Singapore. It is essentially considered as a list of prohibited web addresses, or a filter.

Q. Are there phenomena in Canada to achieve much the same function by means of self-imposed censorship through the users themselves, programs that limit access?

A. From a user's individual PC, yes, there is a variety of programs that can be installed on a PC that can implement this type of web filtering. Those are commonly employed by families who have children that they don't trust to stay with the web pages that are considered appropriate for them.

Some libraries are attempting to install web filtering software. Dr. David Jones of EFC has spoken on that topic numerous times, and he has expressed his viewpoint on that topic as well.

Q. In the evidence of Mr. Angus at page 1133 he makes this observation at line 18 ‑‑

THE CHAIRPERSON: Do you need a few minutes lead time for your conference call?

MR. CHRISTIE: I think I probably would.

THE CHAIRPERSON: Just let me say before we recess, Mr. Christie, that you are responsible for your own witnesses in this case. I should not have to issue any instructions to you in that regard. We have had at least one previous incident where a witness has been in the court room when he should have been out. I am telling you, on behalf of myself and my colleagues, that, if this happens again, you would stand in jeopardy of not being able to call that witness to give evidence if he is in the court room.

We will recess until two o'clock.

MS MATHESON: Mr. Chairman, Mr. Cesario is an articling student from my office. If I am not able to be here this afternoon, he will be here for us. I just ask the Tribunal's view as to whether or not it would be appropriate for him to sit here to use my books.

THE CHAIRPERSON: We have no objection.

MS MATHESON: Thank you.

‑‑- Luncheon Recess at 12:25 p.m.

‑‑- Upon resuming at 2:03 p.m.

MR. FREIMAN: Before Mr. Christie begins, I take it that we will deal with the issue of witnesses and who is going to be called at 2:00 rather than at 2:30. We didn't know at the time that we would be back at 2:00 rather than at 2:30.

THE CHAIRPERSON: We will deal with it now.

MR. CHRISTIE: I intended to say that in all likelihood we anticipate that the evidence of Mr. Klatt will take the rest of the week. If not, we will be calling Mr. Rupert. I don't think I will be through with Mr. Klatt in-chief today.

MR. FREIMAN: That helps me for today, Thursday and Friday. It would be extremely useful if we could have some idea of how many other witnesses will be called after that so that we can budget our time and know, for instance, whether we need now to discuss dates in January.

THE CHAIRPERSON: Let me make clear on behalf of the Tribunal that, before we leave here this week, we want to know what witnesses each party intends to call and the duration of each of those witnesses, so that we can adequately plan for any time that may be needed beyond the designated dates of December. We will discuss that on Thursday or Friday, but certainly I want all counsel to be prepared to discuss that before we leave this week.

MR. FREIMAN: Just one final point. I think I understand the ground rules with regard to Mr. Christie's motion, but I wonder if it would not be useful for the Tribunal simple to put them on the record now in terms of the dates when various materials are expected to be filed.

MR. CHRISTIE: I thought you were going to give that to us on Thursday morning.

THE CHAIRPERSON: We will do that. Please continue.

MR. CHRISTIE: I propose, if I may, to file as a document the material entitled "Cashing in on Caching" by Jon Knight and Martin Hamilton, referred to by the witness. All eight pages are attached, and I have given copies to the parties and to the Tribunal.

THE CHAIRPERSON: Is it necessary? I don't want to have the record any more compendious than necessary. The witness spent a fair bit of time on the issue of caching. This is an eight or nine-page document. I am asking counsel to use restraint in filing documentation that is perhaps repetitive of what the evidence has to say.

MR. CHRISTIE: I agree. The only reason I suggested all eight pages ‑‑ there were perhaps two reasons. First of all, the witness adopted it as a valid, credible opinion and description of the caching method, and I did not want to be accused of only producing one out of eight pages. The reason I produced the document at all was to show by diagrammatic form the process on page 4.

Unless the witness ‑‑ and I am not able to speak for the witness ‑‑ feels that it would be important to keep that in context, I am not objecting to it. May I ask the witness that question?

THE CHAIRPERSON: Yes.

MR. CHRISTIE:

Q. Do you have the document you referred to earlier called "Cashing in on Caching?"z

A. Yes, I do.

Q. In relation to it, do you consider it necessary to comprehend your evidence or to put it in a better context to have the entirety of this document available to the trier of fact?

A. Keeping in mind the comments from the Chairman, I think we should have at least page 4, including the web address at the bottom of that page, so that in future, if this referred to, the complete document could be readily accessed.

THE CHAIRPERSON: I guess we might as well mark the whole thing.

THE REGISTRAR: The document entitled "Cashing in on Caching" will be marked as R-34.

EXHIBIT NO. R-34: Document entitled "Cashing in on Caching"

MR. CHRISTIE:

Q. The next reference I want to draw to your attention in the evidence of Mr. Angus is on page 1133. On that page Mr. Angus is asked if there is any similarity ‑‑ at line 18 the question is:

"What we have been talking about may seem a little strange to people who are not used to computers. Could you perhaps compare what happens when you communicate with a web site with what happens when you dial up a pre-recorded message or a voice mail on an answering machine.

A. They are very similar in many ways. Something like Starphone, which the Toronto Star has, where there is a lot of information stored, what that actually is is a large, specialized computer that has a large number of voice messages ‑‑"

Have you read that over?

A. Yes, I have.

Q. Do you have any comments as to that opinion?

A. It is an opinion that attempts to draw similarities between two widely-differing forms of information access. The concepts and underlying processes between each of those examples is, in very large measure, different.

Q. Does a web site have a telephone number?

A. No, it does not. An answering machine may have a telephone number associated with it.

Q. What would happen if the Zundelsite were taken off line today vis-à-vis mirrors and caching?

A. The contents of the Zundelsite would still exist as the mirror sites chose to maintain them, for whatever length of time they chose to maintain them. The Zundelsite documents in various caching servers would, over time, be replaced with newer documents.

Q. If there were no newer documents, but they were continuing to get hits ‑‑

A. The newer documents would be coming in from other non-Zundelsite requests.

Q. So, if there was a continual request for Zundelsite documents and there was no Zundelsite authentically existing ‑‑ where is the Zundelsite?

A. Webcom is located in Santa Cruz, California.

Q. If that were to disappear and there were continual requests, would the caching facilities provide that information?

A. For the documents that are being requested, yes, that would be the case.

Q. If there were continual requests over a period of time, would those caching documents disappear or not?

A. It would be highly unlikely.

Q. So is it safe to say that, as long as there are repeated requests, the caching documents would be cached?

A. Depending on whether or not the web documents were encoded with an expiry date.

Q. Who normally assigns a telephone number to a user of a telephone?

A. The telephone company would perform that function.

Q. Who assigns a web site domain name to a web site?

A. An organization known as the Internic, by Network Solutions Incorporated out of Maclean, Virginia in the U.S.

Q. Are they a telephone company?

A. No, they are not and never have been.

Q. At page 1135 Mr. Angus says:

"On December 10 I connected to the Zundelsite by typing "http://www.webcom.com/ezundel." That gave me a display which included a table of contents. From there I selected a line that said "Power Letter July 5, 1995," and I received a file that gave me that long address that you see typed there."

And it goes on. He says:

"What that is is an HTML file. The way you take this apart, the very last part after the last slash tells me the actual name of the file."

And it goes on and on.

Could Mr. Angus be sure that he connected to the Zundelsite by typing in that web address?

A. I see that he makes that assertion but, in light of the web caching architecture that is employed at various locations throughout the Internet, I am not at all clear as to how he could be confident of his assertion that that was indeed the case.

Q. At page 1136 the witness says:

"The message is being sent over a telephone line. It is sent from my computer out over a telephone line, through the Bell Canada switch that our telephone line is connected to, and then through that to the Internet service provider I use, which is IStar. What it would then do is check with what is called the domain name server which is the computer that has the list of where is www.webcom.com and sends the request to there."

Is that explanation correct, in your view, for the methods of accessing the Zundelsite?

A. It is his attempt to characterize by repeated use of the word "telephone line" his view as to what he believes telephonic communication should be. The functional reference is more accurately representative of what the line would be referred to in many institutions and houses and businesses that refer to it as a fax line, a phone line, an Internet line. A more accurate reference is by function, not by where it was supplied from.

Q. Do you have any idea why he in common usage would continue to use the words "telephone line?"

MR. FREIMAN: What kind of question is that?

THE CHAIRPERSON: That is not a proper question.

MR. CHRISTIE: In terms of common usage, I don't see the objection.

MR. FREIMAN: He has asked the witness his opinion as to what Mr. Angus' motivation might have been.

MR. CHRISTIE: That was not the question. I said: Do you have any idea in terms of common usage why Mr. Angus would use the words "telephone line?"

Q. Is there something in common usage that justifies the repeated reference to "telephone line?"

A. Not that I am aware of.

Q. Is the explanation for the methods of accessing the Zundelsite accurate?

A. It is the choice that he chose to use. There are, as we have mentioned already, a variety of different methods that do not employ a telephone line as he refers to it. He chose to use that particular method to do so.

In the case of the DirecPC method, the return information does not travel on the same path as the outgoing request does.

Q. On page 1137, lines 13 to 16, the question is asked:

"Let's just remember what it means when someone codes HTML.

A. That it is designed to be displayed on browsers."

Could you please comment on that evidence regarding HTML.

A. What is being acknowledged there is that the information is designed to be displayed, not heard. There is no telephonic communication with a web page being displayed on a person's screen because there is no sound that is received by the act of displaying that alphameric text or graphic images on a screen.

Q. In relation to alphanumeric text, is there a commonly used definition available on the Internet for that term?

A. Not only on the Internet, but in other reference materials as well. The most convenient definition is found on WorldCom's Glossary of Definitions.

Q. Did you obtain off the Internet Communications Library from WorldCom the definition of "alphanumeric?"

A. Yes, I did.

Q. Could I show that, and could you identify it.

A. Yes, that is the document I received from WorldCom.

Q. What is WorldCom?

THE CHAIRPERSON: Would you distribute that so that we can follow?

MR. CHRISTIE: Yes, sir.

THE WITNESS: That is one of the world's largest telecommunications companies. Recently MCI and WorldCom either merged or WorldCom bought MCI.

MR. CHRISTIE:

Q. How did you access this library or dictionary of definitions?

A. By accessing their web site that contains this resource data base of glossary of information and definitions.

Q. Do you regard these definitions as credible in terms of Internet usage?

A. Yes, they would be considered accurate and authoritative.

Q. I would like to ask you to tell me what the definition of "alphanumeric" is that you say is authoritative in that regard.

A. "A set of characters containing

letters, numbers and other symbols such as punctuation marks."

Q. Did you seek to find and obtain the definition of "telecommunications?"

A. Yes, I did.

Q. How did the Communications Library of WorldCom refer to telecommunications?

A. "The transmission of voice and/or data

through any medium by wire, radio, or other electrical electromagnetic, or optical means. Telecommunications includes all aspects of transmitting information."

Q. Did you also seek and obtain a definition of "telephony" from the Communications Library of WorldCom?

A. Yes. They have a definition of telephony that states:

"1) The science of converting voices and other sounds into electrical signals, which are then transmitted by telecommunications media. 2) The telephone business."

Q. Did you seek and obtain a definition of "telephone?"

A. Yes. That is defined by WorldCom as:

"1) An instrument or system used for voice communication. 2) The process or act of communicating on a voice communications system. 3) A device that converts acoustical energy (sound) into electrical energy for transmission to a distant point."

Q. What is the copyright date of this document?

A. 1997.

Q. You have a further page following that. What is that page, sir? What does that reflect?

A. That is the user interface that is presented when that is accessed, where a person can type in the term or word that they are looking to obtain a definition for.

Q. What is the purpose of showing that in relation to those definitions?

A. I think it accidentally got included.

MR. CHRISTIE: Could that be marked as an exhibit, please.

THE CHAIRPERSON: We don't need this last sheet?

THE REGISTRAR: The excerpt of definitions from WorldCom Communications Library will be marked as R-35.

EXHIBIT NO. R-35: Excerpt of definitions from WorldCom Communications Library

MR. CHRISTIE:

Q. I apologize, but I think it is important that we refer to that descriptive page in relation to the document itself. I understand, sir, that it indicates and describes what is the purpose of the telecommunications library there.

A. In the first paragraph, yes. It is stating that it is a definitive source of information on terms and issues related to the technology and business of telecommunications.

Q. Following the word "term", there is a paragraph that I would like to ask if you agree with in terms of your opinion of the accuracy of this information. It says:

"The Telecommunications Library has been compiled to help both laymen and telecommunications professionals keep current on the newest telecommunications terms and acronyms."

A. Yes, that would be an accurate description or characterization of it.

MR. FREIMAN: I can almost understand Mr. Christie asking about the first paragraph but, unless the witness knows an awful lot than I suspect about the circumstances under which this document has been compiled or how the information has been compiled, it strikes me as very difficult for him to comment on the accuracy of that third paragraph. Saying that he agrees with it is hardly helpful to this Tribunal.

MR. CHRISTIE: I don't know what my friend considers hardly helpful to the Tribunal; that is for the Tribunal to say.

In any expert's opinion evidence, if he says, "I consider this authoritative and, secondly, I agree with what it says about itself," that is adoption of that by the expert as his opinion. It can be attacked in the way any opinion can be attacked, but it is not improper to identify. No expert is disentitled to identify anything that he regards as authoritative and to adopt it.

THE CHAIRPERSON: You want the last page back on again?

MR. CHRISTIE: I apologize, I would like it to be included. I don't mean to irritate anybody; it was an oversight on my part.

Q. In relation to the evidence of Mr. Angus, he referred to telephone companies. AT&T and Bell Canada are referred to by him repeatedly as telephone companies.

Did you take the time and seek to find out how in the presentation of themselves these companies present themselves?

A. In my experience in dealing with various telecommunications companies, I rarely encountered them referring to themselves as telephone companies.

Q. Did you in the course of preparing your evidence seek out the web page for AT&T and other companies that were traditionally known as telephone companies to find out if they described themselves as such in their own descriptions?

A. Yes, I did.

Q. Did you obtain off the Internet the mission statements and corporate history statements of AT&T?

A. Yes, I did.

Q. I would like to show you a document entitled "AT&T Corporate History." Are you familiar with that?

A. Yes, this is the document that I retrieved from AT&T's web site.

Q. How significant a player is AT&T in the telephone business, as it used to be known, and in the telecommunications business today?

A. It is certainly recognized worldwide as being one of the preeminent corporations involved in that business.

Q. Did it used to be just a telephone company?

A. In its original inception, when it was first getting into business, yes.

THE CHAIRPERSON: What does "AT&T" stand for?

THE WITNESS: American Telephone and Telegraph.

MR. CHRISTIE:

Q. How do they describe themselves today in terms of ‑‑ you have their corporate history there?

A. Yes. They were referred to formerly as American Telephone and Telegraph Company. They have dropped the full word designation for their company, and they refer to themselves as the three-letter initials AT&T.

Q. Do they describe, from their history, any progress beyond telephone company?

A. Yes, extensively.

Q. Could you give a reference.

A. They do consider themselves as providing all the telecommunications services in the U.S. until 1984. They are also involved in a variety of other data communications services since that time.

Q. Did you obtain from the Internet a description by AT&T of its current business?

A. Yes.

Q. I think that might be more accurate in relation to how they describe themselves.

A. Yes, that paragraph is a description of what AT&T's business currently is.

Q. What does it say its business is?

A. It is the world's premier communications and information services company, serving more than 90 million consumer, business and government customers. They go on to describe their revenues and employees. It runs the world's largest and most sophisticated communications network and is the leading provider of long distance and wireless services. The company also offers on-line services and access to home entertainment and has begun to deliver local telephone service.

Q. When it says "begun to deliver local telephone service," do you know what that means?

A. Yes. That is an indication that up until recently, due to the break-up and consent decree back in 1984, they were no longer in that business.

Q. They got totally out of the business of telephone service?

A. That part of it, until very recently.

THE CHAIRPERSON: This is all very interesting, but do we care whether they were ‑‑

MR. CHRISTIE: I don't know whether you do or not, sir. What I am trying to demonstrate is that what Mr. Angus referred to as a telephone company does not consider itself a telephone company; it considers itself a telecommunications company. I am endeavouring to show that Mr. Angus was loose with the use of language, perhaps for a reason, perhaps not. In any case, his opinions about telephones and the constant repetition of the word would be inaccurate in a common parlance sense either in terms of the definition the companies give themselves or that people generally would give them with any accuracy or scientific concern for the truth.

That is why I am trying to do that.

Q. Dealing with Mr. Angus' evidence at page 1141 ‑‑ could the business description of AT&T be made an exhibit.

MR. FREIMAN: Mr. Christie doesn't want to give us this, but I am just wondering ‑‑

MR. CHRISTIE: I just gave my learned friend what I am referring to now, and I would like to deal with one thing at a time. I will deal with the AT&T business description if I may. I would like to ask that it be marked. My friend wants to make some other point.

THE CHAIRPERSON: What is the utility of this being an exhibit?

MR. CHRISTIE: It would be, in my submission, part of the record to show that probably the largest telecommunications company in the world that did at one time have the word "telephone" in its name now refers to itself as more than that, as a communications and information services company, not a telephone company. I would then argue that the terminology used by Mr. Angus is either tortured deliberately or entirely antiquated and inaccurate.

THE CHAIRPERSON: It does say that it is a leading provider of long distance and wireless services.

MR. CHRISTIE: That is right; that does not mean telephone services. It could mean Internet services. It could mean telecommunications of a videoconferencing nature. I am not here to give evidence, but "long distance" does not necessarily mean telephone, and they do not call themselves a telephone company.

THE CHAIRPERSON: I am not getting into the detail of it. I am just asking whether it adds anything to this witness' evidence.

MR. CHRISTIE: I hoped it did because I thought it demonstrated, in relation to what I would submit is one of the largest telecommunications companies in the world, that their business is not considered by them to be telephone.

THE CHAIRPERSON: It is only one page.

THE REGISTRAR: It will be marked as R-36.

EXHIBIT NO. R-36: Document entitled "AT&T Fact Book, AT&T's Business"

MR. CHRISTIE: I have given five copies to my friends, and now I have an objection.

MR. FREIMAN: I just rise because the witness referred to another document and was looking at it. Mr. Christie does not want to put it into evidence. Given that he gave it to the witness and the witness answered a few questions about it, the normal protocol would be to allow other counsel to see the document whether it is being entered into evidence or not. We can then discuss whether it should or should not. If the witness has seen it and has answered questions about it, we should be able to see it also. I believe it had something to do with AT&T's history.

THE CHAIRPERSON: It has not been put into evidence, but you should allow other counsel to see the document you put before the witness and asked questions about.

MR. CHRISTIE:

Q. At page 1141 Mr. Angus, from lines 3 to 14, makes certain statements. The question is explicitly asked:

"‑‑ can you tell me whether your visit to the web site necessarily involved the telephone network?

A. It certainly did.

Q. Why do you say that?

A. First of all, the only way I can connect to the Internet from my office is through a telephone line."

Does the user, either Mr. Angus' computer or anyone else's, actually use a telephone line?

A. That is his choice to characterize it as such. I think in common usage and accurate reference it would be referred to as a telecommunications link, data circuit, Internet line. His choice to repeatedly refer to it as a telephone line is his personal preference or bias, in my opinion.

Q. Then he says further:

"We don't have any other kind of connection."

Is that true?

THE CHAIRPERSON: How would he know that?

MR. CHRISTIE: "We" could mean Mr. Angus. I took "we" to mean users of the Internet.

THE CHAIRPERSON: I don't think so.

MR. CHRISTIE: You don't think so, all right.

Q. "Secondly, I know that Istar, which is

our Internet service provider, get their major lines from AT&T who are a telephone company."

We just got into AT&T's description of its business. What do you say regarding AT&T who, he says, is a telephone company?

A. I think AT&T would feel somewhat insulted by that reference to them. It's kind of a put-down to them to directly contradict what they refer to themselves and their business as.

Q. It is like referring to lawyers as mouthpieces.

"I put those two things together and I know a significant part of the communication must go over the telephone network."

Does a significant part of the communication involved with the Internet go over the telephone network or not?

A. In my opinion, it doesn't. As we have seen and described and demonstrated, the telephone network is used for handling telephony or communication of voice signals. His choice to use what he refers to as a telephone line is one of several choices that he has here in Toronto.

Q. In Toronto. That must apply anywhere else, do you think?

A. In large measure, yes.

Q. He says further:

"The commercial reality is that there are not other choices. There are not national networks that belong to people other than the phone companies."

Do you have an opinion regarding that?

A. We have amply demonstrated that there are commercially available other choices in Canada that do not involve the telephone network.

Q. What is, in your understanding, a phone company? In Toronto, what is a phone company?

A. I am not really familiar with what is available in terms of services here in Toronto, but a phone company would typically imply a company in the business of hooking up voice-grade circuits for speech or sound communication over the network.

THE CHAIRPERSON: Do you know of any companies that are purely in the telephone business without any other telecommunications facilities?

THE WITNESS: Not offhand that I can think of in Canada. I know they exist elsewhere in the world, but not in Canada, no.

MR. CHRISTIE:

Q. At page 1142 Mr. Angus asserts, starting at line 11 ‑‑ maybe we should go back up a bit:

"However, Rogers itself does not have Internet backbone facilities. They are at that point an Internet service provider like any other, so they are sending the packets out through the network and, if it is in Canada, it is going over facilities owned by one of the companies we talked about on Friday."

That is his phone companies again.

Does Rogers have access to the Internet without reference to what Mr. Angus calls phone companies?

A. I am not particularly familiar with what Rogers in Ontario does, but I am more familiar with what Rogers Communications has available and uses in British Columbia. In that instance Rogers has their own fibre optic line across the border that bypasses any use of BC Tel or any phone company.

Q. Then he says:

"Hypothetically, in the future someone might pull cable over that entire distance and have it never connect in any way to the telephone ‑‑"

Have you ever heard of a computer that could connect through a telephone?

A. Not to a telephone, no.

Q. He says "have it never connect in any way to the telephone". If any computer tried to seek access to the Internet through the telephone, would that be physically or technically possible?

A. Not that I can think of.

Q. He then says:

"‑‑ but even then, because of the Internet's routing method, which is that the packets don't go in a predictable way, you could not know ahead of time or even afterward where all those packets went. The probability would be, to an extraordinarily high degree, that at some point it would be on the telephone facilities."

Is it true to say that one cannot access the Internet except by the use of the telephone facilities?

A. I am aware of ways of accessing the Internet without using telephone facilities; that is true.

Q. What telephone facilities, in the sense of telephone facilities whatever that means ‑‑ what telephone facilities are necessary for a computer to access the Internet?

A. There is no need to use telephone facilities to access the Internet.

Q. I am not certain. Do you know what a telephone facility is, how that term is used? Is it a term of common parlance in the Internet community?

A. Not too often. We generally deal with data links, telecommunication links.

Q. I am going to try to understand what that means and use a hypothetical.

If a telephone facility is the part you plug into a telephone and it goes through the telephone and there is a series of telephones linked together with telephone cords, that might be a telephone facility. I am just hypothetically putting it that way. If you attach one end to a computer and the other end to another telephone line, would the computer's communicative capacity be able to travel through the telephone facility of these linked telephones?

A. In normal configuration, no, that would be highly unlikely, unless we had some way of implementing a data telephony or Internet telephony facility on that computer.

Q. Then Mr. Angus says at page 1143 ‑‑ he asked about theoretical possibilities other than cable, and you have said it is not theoretical but actual in Vancouver, that it goes over the border. Is that correct?

A. Yes, and the discussion refers to wireless connectivity. His statements go to the concept of connecting end user subscribers via wireless RF links. The same as the emphasis is in that area, in my experience and from what I see in industry a large portion of the emphasis is on what is referred to as telco bypass, primarily for economic and performance means. By using RF spread spectrum links to bypass telco facilities, the emphasis on end user connectivity via wireless is still quite limited, although it is available.

Q. Mr. Angus says:

"Is there any other possibility than cable? Yes, there is a company in Vancouver called Wave Rider which is currently trying to sell. They haven't sold any in Canada yet."

Is that true?

A. I don't know what Wave Rider has sold or not sold in Canada. I would think that, if they are still in business, they have possibly sold products in Canada.

Q. In relation to the rest of that opinion, where he states:

"It is a technology which would allow an Internet service provider to put in its own radio ‑‑ think of it as a radio broadcast, like a microwave tower, which uses a technology called spread spectrum which would allow them to do this and maintain security. A subscriber could put a dish on their roof, or a little antenna, and participate.

Again, in their case all you are doing is dealing with that first hop, which is expensive enough to replace, but the backbone is vastly more expensive and complex to replace."

Is that strictly hypothetical now or is there an actual practice of the use of spread spectrum technology for access to the Internet?

A. Yes, there are numerous examples of that currently being implemented and that have been in use for quite some time.

Q. At page 1144 there is a question from Mr. Freiman to Mr. Angus:

"Just to pick up on that, when the Chairman asked you whether it would be theoretically possible to use an alternative delivery system that did not involve the telephone network, is there any such possibility in existence at this point that bypasses the telephone network, to your knowledge?

A. Entirely? No."

Do you have any comments on that answer?

A. That may reflect the extent of Mr. Angus' knowledge, but that is not accurate. That is an incorrect answer.

Q. What is the correct answer?

A. Yes, there are. The Alphastar GlobalCom InSat product is available and does entirely bypass the telephone network. I think we have an exhibit that documents that fact.

Q. I show you a document entitled "Transatlantic OnLine Page." Could you describe that document.

A. This document describes the product known as the InSat wireless modem from AlphaCom. That product is a bi-directional RF spread spectrum transceiver that allows connection to their orbiting satellite network for Internet access without use of any telephone facilities at all. The price is approximately $300 to $400.

Q. Are these available for use today?

A. Yes, they are.

Q. How long have they been available for use?

A. In my understanding, it first became commercially available earlier this year.

THE CHAIRPERSON: Who owns the satellite?

THE WITNESS: A U.S. company known as OrbCom.

THE CHAIRPERSON: Is that a telecommunications company?

THE WITNESS: I am not quite sure how OrbCom would regard their business, but I am sure they would include telecommunications.

MR. CHRISTIE: I have copies of that for all parties. If I may, I want to enter that as evidence of the existence of products that have the capabilities the witness described.

Could that be the next exhibit, please?

MR. FREIMAN: I have some difficulty with this. The Tribunal may want to have a look at it but, as far as I can tell, it says nothing about anything that the witness has testified about.

THE CHAIRPERSON: It talks about global wireless communication.

MR. CHRISTIE: May I respond?

Let me submit that the witness has some knowledge of the product. He produces what is clearly a picture of it. He identifies the origin of the product and gives some information about it. The only thing that he offers this for is for identification purposes both as to the origin of the document and as to its possible use.

He is an expert. He says this is used and has been available. He gives a price. He is not restricted to saying what is on a piece of paper, or we would not need an expert. I hope he is allowed to tender that as the best evidence he can provide to you of something you can physically see.

THE CHAIRPERSON: We will defer this.

MR. CHRISTIE:

Q. Do you know what uses this type of Internet access has been put to?

A. Referring to the InSat device?

Q. That is right.

A. It is used for any application that can be done through an Internet connection, such as e-mail, web browsing, file transfers. Anything that can be done through any other type of Internet connection can be done through that device and that connection method.

Q. Is there any other device or connection method currently in use that bypasses what Mr. Angus repeatedly refers to as the telephone network?

A. We discussed the cable Internet access; we discussed the RF spread spectrum option.

Q. What are the advantages to cable Internet access in terms of conductivity?

A. What do you mean?

Q. Did I choose the wrong word?

A. Probably. The primary advantage of cable Internet access is in two areas. The first area and the one that is most noticeable is the speed. The speed through the cable system is quite a bit faster than what can be achieved through a typical connection known as a telephone line. The other advantage or desirable feature of a cable connection is that the connection is there all the time. There is no dialling delay; there is never a busy signal; there is no delay in getting connected. The user turns on their computer and, when it is finished booting up, they are in fact on the Internet. If they want to click on a web document, it is there essentially immediately, compared to other forms of access that have to go through a more conventional method where there would be a delay associated with it.

The biggest advantage of cable access is speed and permanent connectivity.

Q. Mr. Freiman asked Mr. Angus:

"I realize that I forgot to ask you a question earlier when we were talking about the relationship between taking something off a web site and using technology like a pre-recorded message on voice mail on an answering machine. Does this concept of linking that we talked about with regard to web sites have anything to do with that reality?

A. Linking can mean two things in the context of a web site. It might mean: Go and get another file for me from that site, in which case it is very similar to a menu on a voice mail system. It is just another choice."

Is there a similarity between the linking process on the Internet and a menu on a voice mail system?

A. Not realistically, in my opinion. It is a completely different form of presentation. On the Internet the information is presented in text or visual form and on a voice mail system it is presented in an audible sound through speech or tones or some other audible method.

Q. Then Mr. Angus says:

"Voice mail systems theoretically could do that; that is, you could push a 3 and it suddenly switches you to some other voice mail system. In practice, I am not aware of anybody doing it; whereas in the Web it is fairly common."

Does the fact that you could switch between voice mail systems have any similarity in result to switching from web site to web site?

A. The relationship is not obvious or apparent to me, as to what he is trying to infer or describe there.

Q. At page 1147, lines 11 to 12, Mr. Angus says:

"I conclude that because that is how they were sent to me, through the Internet which I know the backbone belongs physically to telephone companies ‑‑"

Is it true to say that the backbone belongs physically to telephone companies, even in the traditional sense of what was once known as a telephone company?

A. Not in reality, no.

Q. Who are owners of the backbone who originated as telephone companies? Which ones are they?

A. That would be MCI, Sprint and GTE.

Q. From what you know of their current activities, do they consider themselves telephone companies today?

A. None of those companies characterizes the business that they are in as a telephone company or a telephone business.

Q. What other backbone owners are there that were never traditional telephone companies?

A. The other main backbone operators and providers are PSINet, UUNET, ANSNet and, depending on how much of the backbone a person wants to define as backbone, AGIS/Net99 and Digex.

Q. Were they in any sense whatsoever ever considered or did they ever identify themselves as telephone companies?

A. No, from my knowledge they did not at any time.

Q. Did they originate prior to the arrival of the Internet in the popular sense of the word?

A. No, they didn't. They were an outgrowth of their perceiving business opportunities to get involved with Internet data telecommunications.

Q. So to say, "I know the backbone belongs physically to telephone companies," can you say, in your view, whether that is true or false?

A. That, from my experience, is not the case. It seems like he has mixed metaphors in places that are hard to follow.

Q. He says further:

"‑‑ more specifically in my case, it ‑‑"

Which, in the context, I suggest to you means the incoming Internet message.

"‑‑ came over a telephone line which has a phone number ‑‑"

When the Internet message comes from some other source to one's personal computer, is it following a phone number?

A. No, it doesn't.

Q. What is it following?

A. The data communication circuit or path that has been established.

Q. By what means is that path established?

A. The method of connectivity that is required ‑‑ he seems to be trying to infer that the characteristics of the telephone line coming into his office extends through to the Internet backbone, but that is clearly not the case.

Q. If, for instance, a message was to come from a foreign or even a domestic web site to one's server at the request of a browser, is it following anything similar to a phone number when it redirects its response from the web server? Maybe I will rephrase the question.

By what means is the web server sending the message to the computer that requested it?

A. Through the Internet route that has been established through the data and telecommunications links that have been set up.

Q. Does that have anything to do with an Internet address?

A. Yes. The Internet address determines how the information is routed throughout the Internet.

Q. Is that similar in any way to a telephone number?

A. Not really. The telephone number is not part of the Internet.

Q. At page 1148 Mr. Angus comes to the question of telephonic, and he is asked this question at the bottom of page 1147:

"When we began the discussion of telephone networks and the Internet and World Wide Web, I asked you for your understanding of the word "telephonic." I wanted to ask you why you understand "telephonic" to be linked to the idea of a telephone network rather than to the idea of a telephone handset."

What does "telephonic" have to do with the processes of communication over the Internet?

A. Very little, if anything.

Q. Do you ever use a handset in receiving an Internet message?

A. Not in conventional use of the Internet. The only area that can be applicable is in the application of Internet telephony. I think we have numerous clear dictionary definitions that tell us what the words "telephonic" and "telephony" refer to.

Q. At page 1149 Mr. Angus is asked this question ‑‑ actually from line 7 to line 18 there are four very pointed and profound questions which come very close to Mr. Freiman's examination. I want to ask you those questions carefully and slowly, and I am going to read you Mr. Angus' answers. Then I want to obtain from you your answers, and then maybe we could take a break.

THE CHAIRPERSON: We will take a short break now. I just make this observation, Mr. Christie.

You are proceeding on a line-by-line examination of Mr. Angus' evidence which, in a way, at least from my experience, is rather unusual, rather than taking the essences of the differences of opinion in Mr. Angus' evidence and what you seek to obtain from this witness. I am not sure that the differences of opinion cannot be better exposed in a propositional way, coming from propositions from you, without a detailed review of Mr. Angus' evidence by referring at every turn to the transcript.

Let me leave that with you, and perhaps you can consider whether there is any merit to what I say.

‑‑- Short Recess at 3:01 p.m.

‑‑- Upon resuming at 3:19 p.m.

MR. CHRISTIE: I would like to have the opportunity to explain why I believe it is necessary to proceed in a specific and detailed manner, as I have.

First of all, this in all likelihood being a matter of first instance in respect of some major issues of a technical nature, we anticipate that a higher court may want to review the transcript and we would want the court to know in accurate detail specifically where the evidence of one expert relates to another.

The other thing is that, in fairness to Mr. Angus, we do not want to be accused of misquoting him or bringing in issues that are irrelevant. If we are attaching our comments specifically to the opinions of Mr. Angus, we cannot normally be accused of irrelevance.

Finally, in a case like this, in order to be able to deal with a technical matter, as Mr. Angus did in minute detail with diagrams and all sorts of technical assistance, we believe that with the benefit of the transcript it is actually more fair to Mr. Angus and more fair in terms of accuracy than to merely deal in generalities. Frankly, it would be very difficult for me ‑‑ maybe not for some ‑‑ to deal with these things abstractly from the opinions that have been expressed. I don't claim to be an expert in the Internet.

THE CHAIRPERSON: The Tribunal's point is that it is perfectly obvious that there is a significant difference in the opinions of these two witnesses, and it has to do with, first, the definition of "telephonic" and, second, with the usage of the term "telephonic" within the industry.

It have been well articulated in Mr. Klatt's evidence thus far, and I wonder if it is necessary in a repetitive way to point out that difference with respect to every time it comes up in Mr. Angus' evidence.

MR. CHRISTIE: I completely agree in that context. I don't mean to do that and I don't intend to do that any further. I tend to avoid that. You have seen the difference of opinion, and I realize that it is not necessary to re-affirm that.

The only thing further I wanted to deal with in that line was to deal with page 1149 where about five significant questions were asked, and I want to have the witness address those. They are very short.

Q. At page 1149 there are five questions from line 3 to line 18 which I would like you to consider. Have you looked at those in some detail and considered them?

A. Yes, I have.

Q. How important do you regard them in relation to the rest of the evidence?

A. This goes directly to the nature of the communication that is being alleged. It is, in my opinion, a key component of the testimony to be offered.

Q. I ask you to read those questions and tell us what your view in respect of the answers on the basis of your training, skill and ability, starting with the question at line 3?

A. Shall I read the question and then ‑‑

Q. Perhaps to speed it up I will do that, and I will ask you to comment on it.

"Q. Just so that I am clear, is it necessary, in order to engage in telephonic communication, to have a telephone handset?

A. No."

What is your position on that?

A. That is a correct answer. That is indeed the case.

Q. He is then asked the question at line 7:

"Q. Is it necessary, in order to engage in telephonic communication, to have sound coming out of one or the other end of a terminal?

A. No.

What is your view of that answer?

A. It flies in the face of all the dictionary definitions and accepted practical use of that word and the definition of that word.

Q. Is it right or wrong?

A. I cannot see any way that it could be considered correct.

Q. He is then asked:

"In your opinion, does communication over the Internet through a web site constitute telephone communication?

A. Yes."

MR. FREIMAN: May I simply observe that the transcript is obviously wrong. It should be "telephonic communication."

MR. CHRISTIE: My friends and I must accept the proposition that transcripts are often capable of being wrong, but I have never known them to be corrected by just saying so. I don't take that as necessarily so. It may be that that was the question, but I am going to leave is it is, and my friends comments are there.

Q. He says the answer is "Yes." What is your opinion, sir?

A. When the word is "telephone" or "telephonic" would not change my answer. The answer given as "yes" does not accord with the facts as we see them in the dictionary and as we know how the technology that underlies the Internet works.

Q. He is then asked a final question:

"In your opinion, does communication with the Zundelsite and communication from the Zundelsite constitute telephonic communication?

A. Yes."

What is your opinion of that answer and his position?

A. That is an incorrect assertion. I cannot see any way to rationalize that kind of explanation based on what we understand the word "telephonic" to mean.

Q. I have asked you to look through the opinion of Mr. Angus in respect of those issues he was confronted with on cross-examination. Have you done that?

A. Yes, I have.

Q. Without repeating ourselves, understanding the directions of the Chair, and to avoid this discussion of definitions of "telephone" and "telephonic," can you assist the Panel by giving accurate and, in your view, credible opinions respecting his answers?

A. I believe so.

Q. Could you please direct the Panel to those portions which you say require some correction, in your opinion.

THE CHAIRPERSON: We don't want to hear what has already been said.

THE WITNESS: I will try to do my best.

Let's consider page 1150, lines 4 through 9. The testimony from Mr. Angus indicates using the computer to browse the web is more complex than, but not in principle different from, using a telephone handset to listen to prerecorded messages. I was unable to find any recorded messages on the Zundelsite at all. The underlying principles of Internet and telephone communication are completely different, and I don't agree with his characterization in that paragraph.

At page 1151, lines 18 through 23, I agree with the general description of some of the characteristics that are observed when attempting to do Internet telephony, as I understand what he is saying there. That is the primary operational difference between the telephone switched circuit network and the packet switched Internet. The effect of that is that Internet communications are not nearly as close to what we refer to as real time. In a telephone conversation, what is said at the other end is heard almost instantaneously. In Internet telephony there is a quite noticeable and sometimes significantly large delay. That delay noticeably affects the quality of the communication or the ability to communicate.

At page 1154 Mr. Angus' testimony appears at line 19 through 24. He is characterizing Internet telephony in relation to Internet. The important distinction I would make in that regard is that telephone calls use telco circuits and they remain fixed for the duration of the call. Internet data links can go through a variety of changing network paths.

At page 1155, the testimony at lines 7 through 9 relates to how the Internet information gets across or to the border. He asserts that the only way to get information to the border is through the Canadian telephone backbone. There is a variety of other ways that we have seen that that is accomplished.

THE CHAIRPERSON: We have heard that.

THE WITNESS: Let's go to page 1172. Actually, I should start at page 1171, lines 22 through 25, ending up on line 2 of page 1172, where it is asserted that modems convert into sound. He claims that that is what modems do.

What he is describing there is not what a modem does; what he is describing is another device known as an acoustic coupler. Modems do not require sound to operate.

MR. CHRISTIE:

Q. Do they produce sound?

A. Not as a necessary function of their operation.

Q. How do you distinguish between the fact that some do ‑‑ or do they all?

A. No. There is a variety of manufacturers that produce, sell and market modems that have no capability of producing sound at all.

Q. If the sound is not part of their function, how is it related to the function?

A. In the modems that do produce sound, when we hear sounds coming out of the modem, that sound is produced solely as a convenience to the user to indicate status information such as the time when it is dialling or the time when the modems are negotiating their handshaking signals. It is not a necessary part of the function of a modem for communicating data.

The production of sound for a modem is, in essence, irrelevant. If you take a modem that does produce sound and with wirecutters snip off the speaker, it will continue to perform its function just fine, with no apparent difference other than that you don't hear sound.

The assertion that modems produce sound in order for them to be functional is incorrect.

THE CHAIRPERSON: What is the most common model?

THE WITNESS: In our particular business the most common models that we encounter are from companies like U.S. Robotics, Supra, Zoltrix. Rockwell makes a variety of modems.

THE CHAIRPERSON: I mean in terms of capacity to communicate.

THE WITNESS: There is a variety of different models. A particular manufacturer may make a line of modems that do not incorporate a speaker for producing sound and they may have some other model lines that do have speakers on them. It is entirely up to the manufacturer. Often they will leave the speaker off to keep the cost of the modem down.

MR. CHRISTIE:

Q. Is the creation of sound part of the communication process such that the sound is necessary to cause the telecommunication to occur?

A. No. As described, the sound is solely for the convenience of status information for the user. It is not part of the function of a modem for transmitting or receiving data.

At page 1189, the section from line 8 through line 18 seems unclear and contradictory. The question arises as to whether the communication has sound, whether or not it can receive information without sound being involved.

The sound is not sent through the network. I am trying to figure out what is being said in those lines 8 through 17. It is not at all clear what is being asserted in that section.

Q. He says at one point:

"A computer can receive bits without it being in sound, but most computer communication involves converting those bits into sound so that they can be sent over a telephone network."

Is it necessary to convert bits into sound even if one referred to the telecommunications link as a telephone network? Does it have to be in sound form?

A. No, it cannot be, because the telecommunication network works with electrical signals.

Q. Are they the same as the analog voice signals that we mentioned earlier, when you are dealing with digital computer communication?

A. When they are in electrical form, they are similar.

Q. Are the configured in the same way?

A. I think the essential point to note in this regard is that there is no requirement for the modem to produce sound in order to communicate information through the network.

Q. Mr. Angus was asked at this point:

"And there is no communication of electricity by computer that produces a sound when a text file is transferred. Isn't that right?"

He says:

A. I am sorry, sir, that is not correct."

Was he right in saying that, that there is sound produced when a text file is transferred?

A. There is certainly no sound being produced when a text file is being transferred.

Q. Is sound produced in the process of transferring the text file?

A. No, it is not.

Q. Then he asked at page 1190:

"I know, you can talk about a modem, and you will say that a modem creates sound, won't you?

A. I certainly will."

Is that correct?

A. That perhaps indicates his understanding of a modem, but that is not in fact any necessary part of a modem's function other than to communicate status information. It does not communication information via sound.

Q. Could it be analogized in any way like the wheels of a cart that might make noise but are not being used to make noise?

A. Yes. You could have a cart that is making noise, but the creation of noise as the cart moves is not essential to moving the cart.

Let us consider line 18 at page 1192. The discussion from approximately line 12 through line 24 is an indication of his preference to define terms in terms of ownership rather than function. He insists on defining the word "telephone" regardless of the function of it, because of its apparent ownership.

We find quite often that the naming of a process or device is more accurately represented by what it does or by its function, not where it was obtained from.

THE CHAIRPERSON: You have told us many times about Mr. Angus' bias in that regard. I think it clearly demarcates the area of disagreement between you and him, and I don't think we need to hear it repeatedly.

THE WITNESS: That comment is also reiterated at page 1205, I note.

Continuing on to page 1207, lines 21 through 23, I would just like to emphasize my agreement with the statements there that indicate the understanding that the Internet is not equivalent to the telephone network and that the telephone network is in no way to be considered the same as the Internet. They are not equivalent.

MR. CHRISTIE: I would observe, if I may, that that is the first time that Mr. Angus has made that distinction as apparently this witness has observed, just for the record.

MR. FREIMAN: Perhaps it would be useful to read the sentence into the record that is being agreed with.

MR. CHRISTIE: At page 1207, line 17:

"We agree that it is not a telephone system. Right? I don't mean to say it negatively but, when you say, "No, it is not," I am not sure you are disagreeing with me. I am not sure I understand.

A. The Internet is not identical with the telephone network, no.

Q. Or the telecommunications network.

A. No."

That was to line 24.

Q. Is there anything else you want to observe on that page, sir?

A. Not that I have noted.

At page 1211 there is an additional reference to his understanding of what a modem does in terms of converting sound and communicating data. I think I have already explained the errors in that explanation that assumes the requirement of making a sound in terms of function of the modem.

Q. What line is that?

A. Lines 16 through 22. He is asserting that, because on the particular modem that he has you can hear sound from it sometimes, that somehow is significant to its function.

Q. Is that true?

A. It provides status information, whether it is dial tone, whether it is dialling, whether or not the other end is answering, but it is irrelevant to the functional transfer of any data.

At page 1229, the point made at lines 6 through 9, where Mr. Freiman is pointing out the characteristics of a web site ‑‑ this is indeed applicable to just about any web site and certainly would apply to the Zundelsite. The implications there are that the content on a web site is in no way static or fixed as a permanent record, such as it would be if it were in print form or some other physically unchangeable format.

Just a small note on page 1232. Apparently, during the demonstration that was made using the computer there was a concern as to where they could save the information. It could have been saved on the hard drive even if it didn't have a floppy drive, but that is a minor point.

THE CHAIRPERSON: Let's not make it, then.

THE WITNESS: Let's go to page 1241.

THE CHAIRPERSON: Mr. Christie, in light of our earlier discussion, what we have done is shift the evidence to the witness instead of you leading him to it. Could we move this witness along a little more quickly, please.

MR. CHRISTIE: What I have asked the witness to do, sir, is to find areas of Mr. Angus' evidence that he finds incorrect, not only to express his own opinion but at least to attempt to show the degree of credibility of Mr. Angus' evidence. I asked him to do that, and now he is endeavouring to do it.

Q. Could we find only the most major points, if we could limit it to that.

A. I think there is a significant area at the top of page 1241 at lines 1 through 8.

Q. What is your opinion with regard to that?

A. Mr. Angus is attempting to assert that the transfer of a text file is a telephonic communication. There is no basis that I can see, based on practice and understanding of the words used, that that would be the case.

Q. Does that answer make any sense when he says:

"A text file is a text file. It may be communicated by telephonic means or by telephony, but a text file is not telephony."

What does that mean?

A. I am not quite sure what concept he is trying to express there.

Q. To your knowledge, has it any validity, in your understanding of the use and operation of the Internet, to use those terms?

A. Unless he is thinking that a person at the other end would read it off and the person at the other end would hear it ‑‑ I don't think that is what he had in mind.

Q. Are there other areas where you say that you have disagreement with Mr. Angus' evidence?

A. At page 1304, the question is asked, after looking, I presume, at documents on the Zundelsite, what part of it was being communicated telephonically. The response, as I read it, does not seem to answer the question. The answer that I would give is that the Zundelsite does not communicate documents telephonically.

Q. The answer was "All of it is being communicated ‑‑" and at no point does he answer the question. Is that your point?

A. I don't see an answer to the question that is responsive.

At page 1305, lines 5 through 9, there is an assertion made that he is not hearing sound; yet, he is convinced that sound is being communicated between the modems. I am not sure what he is basing that statement on, because it does not accord in reality with the facts of the case.

At page 1307 there was a question regarding the ability to determine whether an audio file would be a prerecorded file or a broadcast streaming file. He is asserting that there is no way to tell the difference. In reality, they have different file extensions, so you can tell whether the Internet communication using real audio is prerecorded or in streaming format.

Q. Is that something that you would expect a competent expert on the Internet to know?

A. If he is familiar with real audio, that is probably something he would soon become aware of.

Q. Are you aware of it?

A. Yes.

Q. Is real audio anything in relation to Internet telephony?

A. It is not generally considered part of Internet telephony, because it is a different application from what Internet telephony is.

At pages 1313 and 1314, lines 22 through 25 on 1313 and lines 1 through 3 on 1314, there is the characterization of description of how a web site is alleged to be constantly informing the Internet of its availability and keeping in touch with it. That is not something that a web site does. As I explained earlier, a web site is passive; it does not initiate any activity on its own.

What I think is being referred to there is the function of the server software that the web site is resident on, perhaps, but ‑‑

Q. What does it do to inform the availability of the web site?

A. It doesn't.

Q. It doesn't?

A. It will respond to a request if a request comes in from it.

Q. But there is nothing from either the Internet Service Provider of the web site or the web site itself that is broadcasting to the Internet, as Mr. Angus seems to suggest, constantly informing the Internet of its availability and keeping in touch with it? There is nothing like that?

A. The web site does not do that, but the underlying Unix software that uses the TCP/IP and other parts of the Internet software such as the domain name service is a software that is running and keeps in touch with the Internet regarding the general availability of that particular server but not any particular web site.

Q. So it is sort of a registration of servers somewhere?

A. Correct.

Q. But it is not on the server itself?

A. There is a domain name service function that is regularly updated to indicate the status or reachability of other servers.

Q. But that is not kept on the server itself, is it?

A. Yes, it is, but it is not related to the presence or absence of a web site. That function occurs whether or not there is a web site on the server.

Q. So it is not correct to say that a web site circulates the Internet, but web servers are registered as such. Is that what you mean?

A. The specific wording relates to lines 1, 2 and 3, where it states that the web site informs the Internet of its availability. That is not a function of the web site. The server software performs that on its own, whether or not there is a web site. That determines whether or not that particular server is reachable or known to the rest of the Internet.

At page 1325, lines 20 through 25, the wording and phraseology and assertions are such that it implies that telephone calls arrive at the Zundelsite. That is an incorrect and invalid characterization. Telephone calls do not arrive at the Zundelsite or any other web site in that fashion.

MR. FREIMAN: So the record is clear, Mr. Klatt appears to be referring to the question, not to any answer.

THE WITNESS: The answer at line 25 indicates the expert agreeing with the question. In my experience, I find that web sites do not accept telephone calls.

At page 1326 we find a discussion regarding the concept of whether Canadians could be prevented from having access by the service provider, presumably Webcom. Anonymizer web redirecters are certainly available, so the answer given there is correct, indicating that, even if attempts were made to block access, through mirror sites or caching access could still be achieved.

At lines 5, 6 and 7, where it says, in terms of directly between the Zundelsite and a Canadian location it could be done with readily available software, it is not particularly easy to implement. The only context where it would be easy or readily available is in terms of a software that can be installed on a client's PC, such as NetNanny, SafeWatch or the Surfguard type programs that are designed to filter out particular addresses.

At page 1330 there is an assertion that the Internet ran out of numbers or that there was a fear that the Internet was going to run out of numbers. That actually has not materialized.

MR. CHRISTIE:

Q. Is that something that a competent expert in the Internet would know?

A. It has certainly been talked about as an issue, but there has never been an instance where the Internet has run out of numbers.

Q. You say it would not run out of numbers. We should not misquote Mr. Angus, but you pointed out that he had a different view. Where are you specifically referring to?

A. The Internet numbers are referenced at page 1330, but that is not the exact quote that I had in mind. Unless it is near by, I think we will have to continue on.

I think this is in the context of attempting to block access from Canada to a particular web site. The inference is made that all Internet addresses in Canada are readily identifiable and that they can be somehow grouped together and blocked from having access to a particular site elsewhere on the Internet.

Q. Where are you referring to in relation to the testimony of Mr. Angus?

A. That would be lines 5 through 22.

Q. What is wrong with what he says there?

A. The concept is asserting that there is a way to know what IP addresses are assigned in Canada and that that range of IP addresses could be somehow blocked on a permanent basis from access to a particular web site. IP addresses are assigned typically from what we refer to as an upstream access or network provider. The Internet Service Provider typically obtains their address block of numbers from their provider who, in turn, usually gets a block of numbers from their upstream provider. Often blocks of addresses are transferred from one provider to another. Addresses that are valid on the Internet can be physically implemented anywhere in the world, so a particular web address cannot be assumed to be a Canadian web address, per se.

Q. He says at line 12:

"Those digits are assigned in blocks as available to Canada."

Is that true?

A. To my knowledge, that is incorrect. There is no particular range of blocks that is only available to Canada. That may have been true at one time in the past, but that is not the situation.

Q. Is that something that a competent expert in modern technology and the Internet would know?

A. The answer is "yes."

MR. FREIMAN: I just want to put on the record that the passage that Mr. Klatt was referring to ‑‑ I know the Tribunal does not have a copy of this, and it does not appear to be done for your benefit. For the benefit of anyone who will subsequently be reviewing the record, the passage that was being referred to is at page 1330, lines 8 through 19.

MR. CHRISTIE: That is what he already said.

THE WITNESS: Let's look at page 1335, lines 3 through 14. There is a discussion on the terminology used to refer to telecommunication companies, specifically the backbone companies. He is attempting to characterize the backbone Internet operational companies as telephone companies and he attempts to give a rationalization for that.

In actual fact, when we look at the description of what the companies themselves claim they are in, nowhere do they refer to themselves specifically as telephone companies.

MR. CHRISTIE:

Q. To provide a slight break from the process we are involved in at page 1135, did you do research into the subject of Internet telephony and achieve a description of that process in written form so that it would be available to the Tribunal if they were interested in the subject?

A. Yes, I did.

Q. I now produce and show you something called "Pulver Points (tm) on the Internet Telephony Industry." Are you familiar with that?

A. Yes.

Q. Is that of any use to understanding the concept of Internet telephony?

A. Possibly.

Q. When you say "possibly," my friends like to snicker, and we like to correct this perception that my friends are entitled to snicker. When you say "possibly," what do you mean by that?

A. It is Mr. Pulver's notations that he uses when answering questions from the media or the press regarding Internet telephony.

Q. Is it of assistance to the common person in understanding Internet telephony, depending on the intelligence of the average person; I realize that.

A. Maybe not so much their intelligence, but their degree of interest in this area. If they are interested in Internet telephony, yes, this would be helpful.

Q. In relation to that, do you regard those comments as credible and accurate in their description of the process?

A. It is basically points that Mr. Pulver makes. Mr. Pulver is a recognized industry expert in Internet telephony, and these are points that he references when he is called upon to make comments to the media.

Q. Do you regard them as credible and accurate in describing the process of Internet telephony?

A. As such, it does not describe the process. It is primarily points regarding Internet telephony that he uses. The process itself is not described in this document.

THE CHAIRPERSON: He is asking whether you agree with it.

THE WITNESS: The points made, yes.

MR. CHRISTIE: Could we refer to those, then. Rather than read them, could we just highlight portions and ask to file the document.

THE CHAIRPERSON: Let us see the document first.

MR. CHRISTIE:

Q. Could you assist us by reference to what you consider the most important points in the significance of this document.

A. I would emphasize his first point regarding the public switched telephone network. Because of its characteristics and the nature of it, it is expected to be around for the foreseeable future.

Point No. 9 is the primary economic rationale and justification for the increase in research and development effort in pushing this technology ahead.

Q. Then there is a reference to "eTelephony" and "eCommerce." Are you familiar with those terms?

A. To some extent, yes.

Q. What are they, briefly?

A. "eCommerce" refers to the practice of being able to carry on financial transactions through the Internet, most commonly through web sites, to implement secure electronic transaction capabilities.

Q. What is eTelephony, to your knowledge?

A. He is pretty much describing it there as the opportunity to do financial transactions, including voice communication. Right now the eCommerce is limited to interaction through mouse clicks and keyboard entries. With eTelephony a person will be able not only to click or type information, but will be able to talk to a human operator at the other end.

Q. Does your copy have a graph of the use of Internet telephony in the years from 1996 to 2000 in relation to U.S. telephony?

A. Yes.

THE CHAIRPERSON: What does this add to the witness' clearly-stated evidence as to fundamentally where he disagrees with Mr. Angus?

MR. CHRISTIE: What I am endeavouring to show here, if I may, is the development of a new utilization of the Internet which is telephonic and how this development is a special process. It is well understood; it is universally recognized as distinct from HTML and HTTP usage. It is my hope to show that in well respected and recognized Internet authorities the distinction of telephonic use of the Internet is well understood and distinct from the use known as hypertext transfer of data. That is basically the objective.

THE CHAIRPERSON: You are basically showing that it exists and that it has a future.

MR. CHRISTIE: No, that it is recognized as distinct.

THE CHAIRPERSON: The notion of the public switched telephone network ‑‑ you are saying that it exists, and this document tends to show that it has a future.

MR. CHRISTIE: I am sorry, we misunderstand each other. I was not saying public switched telephony has a future; I am saying that Internet telephony recognizes that there will always be a public switched network but that Internet telephony is a growing field of a special application of the Internet. That is what I am trying to show, and that this recognizes from what is considered a reputable source that Internet telephony is a well recognized, distinct usage. I am not trying to advance or retard its commercial success; it is not of any interest in that regard, but just to show that it is well understood in common parlance to be a distinct usage.

THE CHAIRPERSON: Do you want to mark this?

MR. CHRISTIE: If we could.

MEMBER DEVINS: Are all four of these pages from the same source?

MR. CHRISTIE: I am afraid not; there is a mistake in that. The World Wide Web definitions come from the World Wide Web Glossary and a different source. I recognize that that was put together incorrectly. The witness pointed this out to me, but it has not been removed.

MEMBER DEVINS: What about "Use of Internet Telephony"? Is that also from the Pulver Points?

THE WITNESS: Yes, it is.

MEMBER DEVINS: So it was an attachment to the Pulver Points?

THE WITNESS: What this graph is showing is a ‑‑

MR. CHRISTIE:

Q. The question was: Is there an attachment to the Pulver Points? We have to address that first. Is that what it is? You may be tired, but ‑‑

A. On the Pulver Point web site there is a collection of slide presentations that were made at these various Internet telephony conferences, but they are not in the form of a typical web document. They are what are referred to as power point slides. The pulver.com web site contains that document in a power point format which can be downloaded through a computer and then using Power Point Program you can see this on your screen.

Q. Did that come from the pulver.com source?

A. Yes, it did.

MEMBER DEVINS: I hope that answers your question.

MEMBER DEVINS: Yes.

THE CHAIRPERSON: All four of these pages?

MR. CHRISTIE: No, the third one did not. Page 1 of 2 came from Glossary: World Wide Web, and it is quite inappropriate to the other document. It is an error on my part. It can be extracted, and I am sure we will all be very happy about that.

THE REGISTRAR: The three-page Pulver Point document will be marked as R-37.

EXHIBIT NO. R-37: Three-page document entitled "Pulver Points(tm) on the Internet Telephony Industry"

MR. CHRISTIE:

Q. If there are other significant areas ‑‑ and I know we are coming to the re-examination by Mr. Freiman of Mr. Angus, and that does come somewhat more important. I don't want to distract from your analysis of the evidence of Mr. Angus. Could we go back to that now?

THE CHAIRPERSON: We embarked on this area on the basis that we were dealing with the most significant areas of disagreement.

MR. CHRISTIE: I think the point is that we should not indulge in analysis of minor points.

MEMBER DEVINS: Or repetitious points.

THE WITNESS: On page 1337, lines 3 to 7, there is an assertion that he doesn't know of anyone who is doing this in Canada ‑‑

MEMBER DEVINS: Doing what?

THE WITNESS: Providing wireless Internet access. That has been outdated or incorrect for over two years.

MR. CHRISTIE:

Q. Would someone who is up to date on the modern technology of the Internet be familiar with the fact that that information is outdated?

A. They should be. It is not widely used in telephony or telephone applications, but it is increasingly widely used for Internet applications.

Q. What line was that?

A. On page 1337, lines 3 through 7.

At page 1355 there is a discussion regarding whether or not the Zundelsite should be considered as connected to the Canadian telephone network. The Zundelsite does not connect to the Canadian telephone network. This part of the testimony seems to imply that in some way the Zundelsite should be considered connected to the Canadian network.

Q. Even if you accept Mr. Angus' analogy that any use of what was the property of a former telephone company, the telephone line, would there be any connection by any of the information on the Zundelsite from Santa Cruz on webcom.com with any Canadian what Mr. Angus calls telephone line?

A. No, there would not be.

Q. How could that ever be instituted in fact, if there were such things in that way as Mr. Angus described a telephone line?

A. If there was perhaps a direct line.

Q. Would that be consistent with Internet usage?

A. No, it would not.

Q. Are there any other observations you want to make pertaining to that particular passage?

A. Not that I can think of at this point.

At page 1375, lines 4 through 8, the discussion relates to whether or not mirror sites could continue to operate if the original site was not there. It is very likely and certainly possible that, if the original site disappeared, mirror sites would change their source from the original site to some other mirror site to maintain an accurate copy of whatever content they chose to mirror.

MEMBER DEVINS: Does a mirror site have the same address as the original site?

THE WITNESS: No, it doesn't.

MEMBER DEVINS: It has its own address?

THE WITNESS: That is correct.

MEMBER DEVINS: So its continued operation does not depend on, for example, the existence of the original site. It operates independently.

THE WITNESS: Completely independently, yes.

MR. CHRISTIE:

Q. If you issue on your web browser a demand for the original web site, how will it find the mirror?

A. It would not necessarily find the mirror unless a person did a search for whatever terms they were looking for.

Q. It would not go to the mirror site by URL, but it would by name search or a search for items unique to the web site?

A. Yes. If a person searched for whatever term or phrase or words that they were interested in which they thought were originally on the Zundelsite, if the mirror site is in the data base of the search engine, it would return that web address as well or instead of the original one.

MEMBER DEVINS: But the mirror site has to be in the data base of the search engine?

THE WITNESS: That is correct, yes.

MR. CHRISTIE:

Q. How does that happen?

A. In quite a variety of ways. There are over 200 different search engines that are available. There is quite a few submission services that will allow you to enter the addresses of web documents that you want included in a search engine. There is also quite a bit of automatic activity referred to as search sites which maintain what they refer to as web spider. What they mean by a web spider is that it is a program that goes out and searches for web pages that it does not currently have in its index. As it comes across web pages, it will typically extract a short summary and include it in its search data base.

Web pages, even if they are not automatically listed by the creator, quite often get included when the web spiders find them.

Q. Would the creator of the web page have any control as to the registration of mirror sites with these search engines?

A. No, they would not.

Q. The question at 1375 is: "If the original were shut down, what would be left to mirror?" and his answer is "Nothing."

It seems to me he is saying that there would be nothing to mirror and that the mirror would disappear ‑‑ if that is the inference to be drawn from that, and that is for the Tribunal to say. Is that true?

THE CHAIRPERSON: I don't think that is necessarily the inference.

MR. CHRISTIE:

Q. How permanent are mirror sites? Is there any time limit to mirror sites?

A. No. A large number of mirror sites have been in existence for a number of years, and there are more mirror sites being set up for other purposes on an ongoing basis.

Q. Would you proceed then in terms of what in Mr. Freiman's re-examination you wish to comment on.

A. On page 1384, lines 11 through 14, we see another example of the incorrect characterization of how a modem functions. There are some additional minor points, but I think they would be considered duplicating what I have already mentioned previously.

MR. CHRISTIE: Since it is 4:30, I would very much appreciate it if we could adjourn. I am not saying that this witness will last much longer, but I do need the opportunity to talk to him overnight and discuss the possibility of some further evidence.

THE CHAIRPERSON: We were hoping to go beyond five o'clock tonight.

MR. CHRISTIE: What will eventually happen, of course, is that the witness will be physically exhausted, as will I, and then the opportunity to ask him if he has further information ‑‑

THE CHAIRPERSON: Why don't we recess now and come back in five minutes and see how we make out.

MR. CHRISTIE: There is one thing we were going to do, and that is to demonstrate Internet telephony on the computer itself, much like Mr. Angus did in demonstrating his observations.

THE CHAIRPERSON: The purpose being, I am sorry?

MR. CHRISTIE: To demonstrate the difference between Internet telephony and the Zundelsite by demonstrating the active use of Internet telephony in this room.

THE CHAIRPERSON: Have other counsel some comments about what I am proposing here?

MR. FREIMAN: I don't want to limit Mr. Christie unnecessarily, but I was not aware that Internet telephony was the least bit in issue in these proceedings. Mr. Angus has said that Internet telephony is different from what goes on on the Zundelsite and it is different from what goes on on the PSTN. I am not quite sure what the purpose of all this might be.

THE CHAIRPERSON: Can you help us with that, Mr. Christie?

MR. CHRISTIE: I thought you might be interested in knowing what the differences really were. If all it takes is to assert that they are different and if my learned friend is prepared to accept that they are, then I guess there is no point, and we won't bother.

MR. FREIMAN: I suspect I will hear more about this in final argument, but it is no part of the Commission's case that what is on the Zundelsite is what is known in the telecommunications community more popularly as Internet telephony. If Mr. Christie is under some misapprehension that we intend to demonstrate that this is the mode of communication that is called Internet telephony, he is wrong. Certainly he knows that we intend to say that this is telephonic communication, but I don't see any congruence between those two points.

THE CHAIRPERSON: Apart from that, Mr. Christie, where are we going with this witness' evidence?

MR. CHRISTIE: I have a couple more areas to cover. The regulation of the Internet that is already in place is something that I wanted to raise with the witness. I want to deal with and introduce the B.C. Code of Conduct for ISPs and the UUNET Canada acceptable use policy as evidence of the process of self-regulation.

THE CHAIRPERSON: I see equipment here. Is that going to be used?

MR. CHRISTIE: It was going to be used in conjunction with the demonstration of Internet telephony and to do a few things with regard to the Zundelsite itself.

THE CHAIRPERSON: How long do you expect that would take?

MR. CHRISTIE: To set it up, I am not sure how long that would take.

THE CHAIRPERSON: My colleagues and I are going to recess for a few minutes.

MR. FREIMAN: Before the Panel leaves, I just want to be sure that the Commission's position is clear. We do not want to limit Mr. Christie unduly. If he wants to do something with the computer dealing with the Zundelsite, I expect that would be relevant or could be relevant. I have some difficulty understanding the relevance of Internet telephony, but I didn't object to it.

THE CHAIRPERSON: The relevance is not always totally clear.

‑‑- Short Recess at 4:30 p.m.

‑‑- Upon resuming at 4:40 p.m.

THE CHAIRPERSON: The Tribunal is of the view that it is clear from the evidence that there is such a thing as Internet telephony. There seems to be a concurrence between counsel about the distinctions related to that process. I don't see, and my colleagues do not see, how it would add to the Tribunal's knowledge to have it demonstrated mechanically before us.

With that, I am suggesting that we do not proceed with the demonstration. We will proceed with Mr. Klatt's examination.

MR. CHRISTIE: There are other aspects of the Zundelsite that I would like to have the opportunity to consider overnight portraying in graphic form. I would certainly need to take some instructions on that, but that is a real problem at the moment, for two reasons.

I don't have the means technically to know how to access the Zundelsite myself, and I don't think it would be proper for me to do so. This is a witness who is probably the only expert on the subject who might be able to do so. I wanted to check and get instructions on that from my client as to precisely what he wants to do in that regard and to discuss it with Mr. Klatt so that he could go right to the point. It is difficult to do that. I might say that I, for one, am quite tired, and I am quite sure the witness is tried. It has been a long day. I would really like the opportunity to discuss that.

I think it would be unfair to leave Mr. Klatt and myself and my client in a position where he is under cross-examination or about to be cross-examined and not having the opportunity to consider the possibility of introducing this evidence. I would like to show which, if any, of the allegedly offending documents remain on the Zundelsite.

THE CHAIRPERSON: What is the relevance of that?

MR. CHRISTIE: If these are allegedly offending documents and if they have been removed, then it would seem inappropriate to ask for a cease and desist order. If there has been voluntary removal of what is alleged to be offensive ‑‑

THE CHAIRPERSON: This is November 10. Would we have to do that at points in time between now and final argument? I can't see the purpose of it at all. Subject to consulting with my colleagues, I think we would direct that we would not hear that evidence.

MR. CHRISTIE: How do you know that what you saw as being representative of documents from the Zundelsite really were from the Zundelsite, with the evidence you have of the technical possibilities of various other places storing the material in an unauthentic form. Should it not be the case that an attempt be made to ascertain the authentic nature of the very thing you are investigating?

THE CHAIRPERSON: Is it part of your case that these documents that are the subject of this Hearing were not obtained from the Zundelsite?

MR. CHRISTIE: We don't know that.

THE CHAIRPERSON: You don't know whether it is part of your case?

MR. CHRISTIE: I know that it is an argument. What do you mean, I don't know if it is part of my case? I don't know what the facts are because it is technically impossible to know. The only what to be accurate in knowing whether these are authentic would be to ascertain from the person who is the proprietor of the Zundelsite.

THE CHAIRPERSON: We could spend the rest of this time arguing back and forth rather than your completing your evidence. If the evidence that you want to call is to determine whether everything that was on the Zundelsite at the time that it was drawn down and placed in evidence here is still on the Zundelsite, I don't think we would allow that evidence because we would not think it is relevant.

MR. CHRISTIE: That was not my objective. My objective was to ascertain whether the material drawn down was authentic.

THE CHAIRPERSON: Let me put it this way. Why don't you complete your examination of this witness, and we will reserve on whether you will have the right to deal with the matter that you have just mentioned in terms of making contact with the Zundelsite.

MR. CHRISTIE: Thank you.

Q. Mr. Klatt, did you make efforts to ascertain the standards of Internet responsibility for content of web servers that have been attempted by various organizations in Canada?

A. Yes. The one I am most familiar with is the B.C. Internet Association of which I am a member and have been since, I believe, late 1995.

Q. What I would like to deal with first, though, is something called UUNET Canada Acceptable Use Policy. Are you familiar with that?

A. Yes.

Q. What is UUNET?

A. UUNET is one of the largest Internet access providers in Canada.

Q. Specifically in relation to that policy, have you extracted their policy from the Internet itself?

A. Yes, I have.

Q. I now produce and show to you a document entitled "UUNET Canada Acceptable Use Policy." Are you familiar with that?

A. Yes, I am.

Q. To your knowledge, does that accurately represent the position taken by UUNET on the subject of illegal use?

A. Yes. They make it quite clear that, if there are any changes, they will be updated in this particular web document.

Q. I specifically draw your attention to the term "illegal Use." It says:

"the UUNET Network may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited."

In relation to your technical knowledge of the use of the Internet, what illegal use could be possible in Canada if the Zundelsite is located in the United States?

A. The user that would choose to access material would be the one that would have to consider whether their actions would be legal or illegal based on their understanding.

Q. Assuming that the materials set out on the Zundelsite were contrary to the Canadian Human Rights Act, who would be in violation of that policy in accessing the Zundelsite from Canada?

THE CHAIRPERSON: Is this witness competent to answer these kinds of questions?

MR. CHRISTIE: Technically, yes.

THE CHAIRPERSON: How so?

MR. CHRISTIE: He knows how that communication would originate.

THE CHAIRPERSON: He can answer technically what the transference of information is about and the implications of it, but he is not in a position to give a legal opinion as to whether it is within law or without the law.

MR. CHRISTIE: We are only speaking of the acceptable use policy. That is basically what I meant to direct the question to.

Q. What would be the technical effect of seeking access to material prohibited by the Canadian Human Rights Tribunal in Canada? What would be the technical method of doing that from another country?

A. The user at their PC would choose to initiate a request for it by the actions they would take at their PC by either typing in a request for a specific document at a particular address or by putting their mouse pointer over a hyperlink that they could click onto to request that document.

Q. In order to do that, certain legal assumptions might flow, which I will not get into.

Would you, in your evidence as an expert, accept the proposition that they would be communicating in any telephonically by so doing?

A. No. If they were requesting text or visual information, it would not constitute a telephonic communication.

Q. Is there a policy of unauthorized access to or use of data, systems or networks?

A. Yes, the UUNET does prohibit unauthorized access.

Q. Is that a useful document to demonstrate the efforts made in Canada to restrict or regulate the use of the Internet?

A. In my opinion, this document is quite comprehensive in what it sets out as acceptable or unacceptable procedures or activity by this company's subscribers.

MR. CHRISTIE: Could that be marked as the next exhibit.

THE CHAIRPERSON: I haven't seen it yet.

MR. FREIMAN: I have several comments.

first, it is page 1 of 2. We don't know what is on the second page.

Second, if the object of the exercise is to demonstrate that Mr. Klatt has seen this and finds it a valuable document, Mr. Christie has established that. However, that is not a criterion for admissibility. I don't know the relevance of this. I have heard nothing that makes it relevant. It is not a particularly harmful document, but it is not a particularly relevant document because it does not address anything that is before this Tribunal. It deals with an Internet provider's policy as to how its users are to behave in connection with their activities on the Internet. It says nothing at all about responsibility of the sort that you are looking at, sir.

THE CHAIRPERSON: I don't see the relevance of it. We won't receive it.

MR. CHRISTIE:

Q. Have attempts been made by the B.C. Association of Internet Providers to wrestle with the problems of communication restrictions on the Internet?

A. Yes. The B.C. Internet Association has been working on a policy in this area for a number of months and at the most recent meeting in Penticton produced a draft version of this document that addresses some of those concerns and issues.

THE CHAIRPERSON: How does this differ from the UUNET document and how is it any different in the context of our ruling? I don't see how the B.C. regulations are relevant.

MR. CHRISTIE: I was going to show you a copy and refer to the differences and the significance of those differences might be obvious. If you would like a copy, I will offer it to you.

Q. In relation to this document ‑‑ do you have a copy?

A. No, I don't.

Q. I have one for you. In relation to this document, does it articulate the efforts made to identify freedom of expression as part of the ISP's responsibility?

A. Yes, that aspect is addressed in the second paragraph.

THE CHAIRPERSON: I think this document is covered by the scope of our last ruling.

MR. CHRISTIE: Until you hear the reasons for the reference to it, perhaps it would be wise ‑‑

THE CHAIRPERSON: Don't elicit it through this witness. Just tell me on what footing you seek to justify the introduction of this document as in any way relevant to any issue in this Hearing.

MR. CHRISTIE:

Q. The B.C. Internet Service Provider's Association consider itself a telecommunications delivery system or agent?

THE CHAIRPERSON: Mr. Christie, I asked you to address how you justify this.

MR. CHRISTIE: I was trying to do that as quickly as possible. If you look at the second page, it says:

"ISP's have a responsibility to make a clear distinction between their role as publisher (their own Web sites) and their role as telecommunications agent (connectivity, web hosting, newsgroup hosting, etc). New laws and regulations are not needed to cover this dual functionality."

I am just trying to draw your attention to the fact that telecommunications agents is how they see themselves, not telephone operators, as Mr. Angus would have you believe.

If common usage is relevant and if it is possible to demonstrate this in terms of widely-accepted usage, it may be appropriate to note that publication and/or telecommunication is essentially how these people view themselves without trying to manipulate Human Rights Tribunals in any way or to manufacture meanings in some twisted sense. It just shows the common parlance, the use by people who are in the business, who are trying to be responsible in the business.

MR. FREIMAN: If it is of any assistance to the Tribunal, it is my sense that we will get farther and get there quicker if we simply admit it on the basis that there may be some tangential relevance, and the Panel can deal with it as to weight later. It just strikes me that we should be getting on with the evidence. You can take it for what it is worth, and I am not going to object.

THE CHAIRPERSON: The point has been made numerous times as to the use of the terminology and the differences of opinion of these two witnesses. I guess, Mr. Christie, you are advancing it as another illustration in support of your witness' point of view.

MR. CHRISTIE: I concede that it is necessary to have more than my witness' bald assertion, and I am trying to bolster it with as much evidence as I can.

THE REGISTRAR: The BCIA Code of Conduct for ISP's will be marked as R-38.

EXHIBIT NO. R-38: Document entitled "BCIA Code of Conduct for ISP's"

MR. CHRISTIE:

Q. I want to discuss with the issue of your own position of Internet Service Provider and the controversy in which you became involved in relation to one of the parties here, the Simon Wiesenthal Center. Is that correct?

A. Right.

Q. I do this because I want to lead evidence pertaining to your own moral or ethical bias and to identify it openly in-chief as much as I can to demonstrate that in the interests of candour.

What has been your position on the subject of regulating the content of web pages that you hosted as an Internet Service Provider?

A. Our position from the inception has been that which has been most closely articulated by David Jones of Electronic Frontier Canada. In my best ability to paraphrase, he is saying that Internet Service Providers have an obligation to make available the opportunity to communicate with the widest range of expression and beliefs and ideas whether or not they are considered objectionable or obnoxious.

Q. Why would you not see it as part of your role to eliminate some web sites or some methods of communication from your server?

A. For a number of reasons. From my understanding and reading of the cases in the U.S. regarding similar types of issues, it has been held that where an Internet Service Provider took an active role in controlling the content of a certain area of a user's web site is then deemed to be liable for all content on that particular server. That type of liability was not an area that we wished to incur, so our policy was that we were going to act as a common carrier even though we don't have that status in law. It was our operating policy to do so.

Q. If it were your desire to edit, eliminate or control the web site of various web site users on your server, would you or anyone have the capacity to do that and, if so, how would they do it?

A. As I understand the question, you are asking if I, as the owner/operator of an Internet Service Provider could choose to delete or remove a particular user's web content?

Q. How would you edit? That is a process of controlling the content.

A. It would have to be in somewhat of an analogous fashion to that of an editor or publisher where material would be submitted for prior review before it was published or posted.

Q. Is the analogy of a newspaper appropriate from your experience to the existence of a web site in terms of its changeability?

A. No, because with a newspaper, once the content is printed on the paper, it is a fixed record; it stays that way in perpetuity, presumably.

Q. How are various web sites different in that regard?

A. The information is published by the author of the material directly in most cases. Whenever they want to change or upload material, they create the content and put it on their web site without any prior scrutiny, review or control from any other party or entity.

Q. How many web sites would your server host in the period of its operation?

A. Probably close to 50.

Q. How would you be able to monitor the various changes made on each of those 50 web sites at any given time?

A. There was no feasible way known to do that.

Q. If you wanted to, what would you have to do?

A. You would have to set up some mechanism whereby users would have to submit their proposed content to some temporary area where a person such as myself or some other person would have to evaluate it and decide whether it was acceptable for them to post on their web site.

Q. Could they still post without your knowledge?

A. In actual fact, we don't have any type of prior review, so, yes, they do post without our knowledge whenever they choose to do so.

Q. In the context of our society, has this been a controversial area?

A. In our case we received a communication from Sol Littman suggesting that they would appreciate the removal of particular web site contents because they didn't like it, for whatever reason. We suggested that they contact the author and attempt to address their concerns directly with the author of the material.

Q. What was your position if it was alleged or said that the material was illegal?

A. Our position is that we don't wear a badge. We are not law enforcement trained. We don't perform any function with a court or of a judicial nature, so it is beyond our scope of involvement.

Q. Are you competent to apply and interpret the Canadian Human Rights Act or the Canadian Criminal Code vis-à-vis hate literature or obscenity?

A. Not that I am aware of.

Q. Have you ever felt that it was within your grasp to do that?

A. No.

Q. Did that position become expressed in any way at that time?

A. Yes. I wrote a letter to the Attorney General of B.C. expressing our willingness to co-operate with his staff if they had concerns regarding any of the content on the web page that was being complained of and being referenced in the media.

Q. Did you have any further effects, legal or otherwise, from your maintenance of various web pages?

A. Yes. The media publicity was an adverse circumstance for our business to operate in. The School District chose to discontinue their Internet access. I know they get the same Internet through their current connection as they did through our connection, but they somehow felt they were obligated to do so. The college sent me a letter indicating that my services for teaching Internet classes were no longer possible for them to use based on my position regarding censorship on the Internet.

Q. Did you experience any legal difficulties as a result of maintaining your position? Have you ever been charged with any offence alleged to have breached the Human Rights Act or done anything contrary to that statute?

A. No, we have had no charges or adverse legal effects associated with it.

MR. CHRISTIE: Subject to the desire to demonstrate the present state of the material on the Zundelsite as accurately as possible, I have no further questions of the witness. You have directed me not to do that today ‑‑

THE CHAIRPERSON: We have directed you that we don't believe it is relevant. If you have other submissions to make that would convince us otherwise, we will hear them.

MR. CHRISTIE: Could I think about them overnight?

THE CHAIRPERSON: Yes, but I am not promising that our decision will be any different.

MR. CHRISTIE: I appreciate that.

THE CHAIRPERSON: We will resume on Thursday at 9:30.

‑‑- Whereupon the Hearing was adjourned at 5:05 p.m.

to resume on Thursday, November 12, 1998 at

9:30 a.m.