Toronto, Ontario
‑‑- Upon resuming on Monday, December 7, 1998
at 9:53 a.m.
THE CHAIRPERSON: Good morning.
We will deal first with the daily scheduling. If my memory serves me, last day we talked about setting the hours for 9:30 to 4:30. Is this convenient for everybody?
Mr. Christie, please.
MR. CHRISTIE: In view of the fact that it requires quite a bit of time to prepare for and to be ready for the next day's witnesses, this schedule puts a good deal more strain on us than we used to have when the Commission was presenting its case and the Complainants were presenting their case. I would maintain the position that we should have the same hours that they had, that that is the only fair way to proceed. We have as much difficulty as they had, probably more, in arranging our schedule. It is not as if we only have things to do here; there is a lot of other things we have to do.
THE CHAIRPERSON: So what are you suggesting?
MR. CHRISTIE: 10:00 to 4:00 was what we used to have.
THE CHAIRPERSON: I don't remember 10:00 to 4:00, and I don't remember any proceeding I have been involved in being 10:00 to 4:00.
MR. CHRISTIE: Whatever it was before; I may be mistaking it for something that I used to know in court.
THE CHAIRPERSON: Are you saying you would like to start at 10 o'clock rather than at 9:30?
MR. CHRISTIE: Yes.
THE CHAIRPERSON: Mr. Freiman, please.
MR. FREIMAN: In my submission, every day we have is precious. The extra half-hour is extremely useful. It is not as though we never sat late when the Commission was putting in its case or we never had short lunch hours. When Mrs. Zundel was testifying, we sat until past five o'clock in order to get her evidence in. We have started at 9:30 in the past in order to get evidence in while the Commission was putting in its case.
In many ways, it puts the Commission and the Respondents in a more difficult position because we are the ones who have to cross-examine and have to respond on short notice to new issues.
The time is precious and, in my submission, we ought to sit from 9:30 to 4:30.
THE CHAIRPERSON: Do any other counsel wish to comment?
We will sit from 10:00 to 5:00.
We now have submissions from counsel for the Commission on the motion that Mr. Christie brought. I wonder if we could set a motions day to hear argument on that, perhaps Wednesday or Thursday.
Could I hear from counsel on that? It is your motion, Mr. Christie.
MR. CHRISTIE: I understood that it would be argued on Wednesday, so we are prepared for that.
THE CHAIRPERSON: We will argue that on Wednesday morning at 10 o'clock.
I understand that we are continuing with the cross-examination of Mr. Klatt.
MR. CHRISTIE: If it please you, there was a request made by the Tribunal that I lock in a whole bunch of days. I gave dates that I put in writing.
The problem is that I have to fix three weeks of hearings for a court in the same time frame. What I would like to ask you to do, if you would, is to fix the dates you want so that I don't have the potential for double-booking. The Court in British Columbia is demanding available dates in that same time frame for three weeks. The Court has already sat for two weeks, and they want to have this matter concluded.
All I would ask is that at your earliest convenience you fix the dates that you want and that everyone has agreed to in the time frame that I have offered, which is all I can offer.
THE CHAIRPERSON: I have not discussed the locked-in dates with other counsel, but they are satisfactory to the Tribunal. Perhaps we could address that immediately after lunch. I have not had an adequate opportunity to discuss the dates with my colleague. Perhaps counsel can direct their minds to that, and we will deal with that immediately after lunch.
MR. CHRISTIE: Thank you.
I have one other matter if I may, and that is Mark Weber, the next witness whom we will be calling as an expert in history, the subject on which we have provided his CV and his opinion. He is in court today, and I wondered if anyone had any objection to his being here. If you do, then certainly he will not be. He is tendered as an expert, and I thought the rule was the same as it used to be and we might be entitled to have him observe the proceedings.
MR. FREIMAN: If Mr. Weber is being called purely as an expert, then the Commission has no objection. If he is being called as a mixed fact and expert witness, then the Commission wishes him to withdraw.
THE CHAIRPERSON: Other counsel...?
MR. ROSEN: I agree.
THE CHAIRPERSON: Mr. Christie, please.
MR. CHRISTIE: In view of the fact that Mr. Weber has knowledge of some facts and also some opinion, then I suppose we will have to ask him to leave.
There is an issue which arose as a result of the resignation of Member Jain which we would like to address at the earliest opportunity, pertaining to the position of the Tribunal continuing with two Members.
THE CHAIRPERSON: Do you wish to bring a motion on that issue?
MR. CHRISTIE: Yes, we would like to do that. It is a question of jurisdiction.
THE CHAIRPERSON: We will deal with that motion on Wednesday morning.
MR. FREIMAN: If we are going to deal with it on Wednesday, we would like to know what Mr. Christie is challenging and on what basis.
THE CHAIRPERSON: Can you tell us what the motion is, Mr. Christie?
MR. CHRISTIE: In fact, the new rules require that the Panel be comprised of either three Members, in the case of the Chairman's view that it is an important matter, or one Member. There is no provision in the new operational procedure, it seems, for a two-Member Panel.
We have one authority from the Nova Scotia Court of Appeal where an administrative tribunal comprised of two members who had differing views resulted in a mistrial because, of course, there was no majority opinion. The potential for that exists, whether or not in fact it exists.
The circumstances are such that we take the position that the Act no longer contemplates a panel of two Members. Basically, that is it.
THE CHAIRPERSON: We would not want to lose another Member. We will deal with that motion on Wednesday.
MR. TAYLOR: Perhaps we could get that Nova Scotia case from Mr. Christie.
MR. CHRISTIE: I have no trouble getting that.
THE CHAIRPERSON: Mr. Christie, that in essence is your whole argument?
MR. CHRISTIE: That is correct.
THE CHAIRPERSON: Recall Mr. Klatt, please.
MR. CHRISTIE: I have the case for the Tribunal and the other parties.
RESUMED: BERNARD KLATT
CROSS-EXAMINATION, Continued
MR. FREIMAN:
Q. Mr. Klatt, are you acquainted with the Fraser Institute?
A. I think I have heard of it. It is based in the Vancouver area?
Q. Yes, it is. Is that an institute that has a certain authority within the Canadian community?
A. I am not really very familiar with what it does. I have heard of it.
Q. Is the UPS Foundation Professor of Regulation and Competition Policy a prestigious and authoritative position at the University of British Columbia?
A. What is the name again?
Q. The UPS Foundation Professor of Regulation and Competition Policy at the Faculty of Commerce and Business Administration at the University of British Columbia.
A. That is one position I have not heard of.
Q. Are you familiar with Professor W.T. Stanbury?
A. No, I am not.
Q. You don't know the most published author on regulatory policy as it pertains to communications in Canada?
MR. CHRISTIE: Is my friend giving evidence or is he asking ‑‑
MR. FREIMAN: I am asking a question.
MR. CHRISTIE: That is giving evidence when you say he is the most published author. I object to the question in the way it is phrased.
THE CHAIRPERSON: Mr. Freiman, could you rephrase the question. Put it to him as a proposition.
MR. FREIMAN:
Q. If Professor Stanbury were the most published author on the subject of regulation as it affects broadcasting in Canada, would you expect to know about it?
A. Not necessarily.
Q. You, yourself, are a published author. You told Mr. Christie that you had published certain things on something called a NewsNet News Group?
A. I believe it is referred to as the Inet Access Mailing List.
Q. The Inet Access Mailing List. That is a sort of discussion group. Right?
A. Correct.
Q. Those are your publications?
A. I am not sure it would be considered a publication.
Q. That is as close to a publication as you have come?
A. I have also created web site content.
Q. That and your web site content. I take it that you not only write for this info line and Access News Group, but you also read what is on the web site?
A. As far as I know, they don't maintain a web site.
Q. Sorry, you read what is published in the discussion group?
A. I have.
Q. And you read in 1996 what was on that location?
A. It is a relatively high-volume mailing list. By no means would I claim to have read anywhere near all the content that is generated on that mailing list.
Q. You read some of the content.
A. True.
Q. Based on the some of the content that you read, by 1996 you were aware that access to the Internet by coaxial cable was considered by the participants in that group to be too expensive and unreliable in terms of service to be a serious competitor to dial-up access.
A. No, I would not characterize that as being accurate.
Q. You were aware that it was considered to be too expensive for ordinary people to subscribe to it.
A. I would disagree with that characterization.
Q. Your own experience was that it was too expensive, wasn't it?
A. That is not correct. By the end of 1996 we did have low-cost, affordable Internet access via the cable TV system in our area.
Q. By the middle of 1996 was it not your view that it was too expensive because consumers would always go with the lowest-price option?
A. Many do.
Q. Was it not your view that it was too expensive because consumers would go with the lowest-price option?
A. Often a certain segment of the market will go with the lowest-cost provider.
Q. Was it not your view that it was too expensive because consumers were focused on the lowest price? In general, consumers were focused on the lowest price?
A. There is a certain market segment that definitely is oriented toward the lowest cost.
Q. First-time Internet users is that market segment, is it not?
A. Not necessarily.
Q. So you disagree with that.
A. I am not saying I am disagreeing with it. There is a certain market for a wide range of service offerings.
Q. Do you also agree that there was a great deal of doubt at the time whether Internet access via coaxial cable would be appreciably faster than dial-up, if at all?
A. It depends on how it is implemented.
Q. At the time, in 1996, there was considerable skepticism among ISP providers that Internet connection via coaxial cable was faster than dial-up access, if at all?
A. I wouldn't characterize that as accurate.
Q. Would you characterize as accurate the proposition that in 1996 there was no large-scale service provider offering cable access in Canada?
A. I am not aware of all the time frames that all cable Internet access systems were implemented, but I believe that Cogeco was one of the early ones, which is based in the Montreal area. They might have had something in process by that time.
Q. I put it to you that by the middle of 1996 Rogers was the first and it was only conducting experiments in suburban Toronto. Do you agree or disagree?
A. I am aware that Rogers did have initial tests in the Newmarket area.
Q. That was the first in Canada, was it not?
A. Not to my knowledge.
Q. Do you agree or disagree that even Rogers was using modems for at least the downlink portion of their service?
A. Cable modems?
Q. Modems of some sort.
A. There is a device referred to as a cable modem.
Q. I am suggesting that they were using telephone modems ‑‑ that they were using telephone modems for the uplink.
A. That may have been their choice and how they chose to implement it at that time, because they may not have had a two-way cable plant system.
Q. In 1996 there was a problem with having a two-way cable system, wasn't there?
A. Not necessarily.
Q. But there was in practice, because even Rogers was using telephone modems for part of the uplink.
A. It was their choice to implement it that way because their plant infrastructure may not have been satisfactory for providing the return path by the cable system. Other cable providers did have two-way capable cable plants.
Q. If, in fact, Rogers was the first, then there would be a problem with all the large companies, other than yours of course.
A. I wouldn't say that was the case.
Q. Would you agree that Interlynx was using traditional dial-up access with its Western Coaxial Cable?
A. I am not familiar with that company.
Q. Would you agree that there were issues of filtering and separating traffic on coaxial cable in 1996 and that that was because available units would echo all of the traffic on a given segment to every other unit on the segment?
A. That is a characteristic of particular vendors' limitations.
Q. I am suggesting to you that in 1996 that was a problem all over the place.
A. Not necessarily.
Q. You disagree with that?
A. Different vendors' products work differently.
Q. Which vendors were in the market in 1996?
A. Lan City and Zenith were ones that I am aware of.
Q. And they had that problem?
A. I am not sure that Lan City did.
Q. Zenith certainly did.
A. That is correct, but that was also deemed a feature, not necessarily a problem.
Q. ISPs thought it was a problem.
A. Not necessarily.
Q. I suggest to you, sir, that each and every one of the propositions that I have put to you is a proposition which was in fact on the Internet service, the info.inet.access service, and it was on a communication either authored by you or sent to you. Do you agree or disagree?
A. It may be. I have a hard time recalling what I saw or read in 1996.
Q. I am showing you an off-print from the News Group, Internet Inet Access, dated April 22, 1996. This is a document that says it was written by Bernard Klatt whose e-mail address is admin@ftcnet.com. Is that your e-mail address?
A. That is one of.
Q. Is this a message that you wrote? Not the top; the top is a communication that you received. The title is "What about access over cable?" At the bottom is a message. Do you deny having written this message?
A. It appears to be a response to that particular user, Bill Burke.
MR. FREIMAN: Could this be the next exhibit, please.
THE REGISTRAR: The document will be marked as Commission Exhibit HR-31.
EXHIBIT NO. HR-31: Document entitled "the discussion network" containing reply by Bernard Klatt to Bill Burke re question "What about access over cable"
MR. FREIMAN:
Q. If you look at the second sentence, you write:
"Maybe it's just our demographics (mostly retirees and farmers) or my lack of marketing skill (I'm a techie), but first time Internet users seem to focus primarily on whatever has the lowest price."
Do you agree or disagree that you wrote that?
A. That is a statement I made.
Q. And it was true then?
A. That was my perception at the time I wrote it.
Q. As a result of that, the fact was that for all your marketing efforts all you had managed to do was to sign up a few home users, one business and a School District. Correct?
A. At that time, yes.
Q. I would like to show you another document. This is a four-page document dated April 24, 1996, shortly after the last document we looked at. It is also at the info.inet.access discussion group. You will remember Bill Burke. This is the same question, and here are some answers. If you look at the second page at the bottom, there is a response from a Bernard Klatt, Owner, Fairview Tech Ctr Ltd., whose URL is www.ftcnet.com.
Do you recognize that as a message that you authored?
A. It appears that it would be.
Q. Therefore, this is a communication that you had read at the time, is it not ‑‑ the three pages of Internet to-ing and fro-ing?
A. I don't necessarily know that I would have read the e-mail from Markus Baumann. It looks like he is summarizing a collection of responses that he had received.
Q. So you deny ever having read this?
A. I don't recall reading the complete collection in this format.
Q. You did write the message on the second page?
A. It looks like that is a communication I did write.
Q. You will notice at the top of that page that someone named Greg is writing in the first full paragraph:
"Besides, unless I've missed some important bit of information, cable 'net access is not going to be all that fast anyway."
You will agree with me that some of the users on your info.inet.access news group ‑‑
MR. CHRISTIE: Unless the witness, who is an expert, recognizes an author as authoritative, it is not necessary that he comment on the opinions of other people. I am not certain that they are tendering Greg as an author of some expertise to whom this witness should make comment.
THE CHAIRPERSON: I suppose he is in the process of establishing whether the witness recognizes this writing.
MR. CHRISTIE: Being able to recognize writing, in my submission, does not make it admissible for the purpose of cross-examining an expert.
THE CHAIRPERSON: I am allowing you to proceed.
MR. FREIMAN:
Q. Would you agree with me that Greg, one of the correspondents on this group, believes that cablenet access is not going to be fast?
A. He is expressing a concern in a hypothetical situation where they have too many users on a particular segment. He is expressing concern that the overall performance for an individual user might be less than what they are expecting.
Q. The second communication on the page indicates:
"With Rogers Cable performing trial test right now.. Ontario will be the first ones in Canada to feel this."
You will agree with me that another one of your interlocutors was stating that Rogers is the first in Canada to initiate coaxial cable hook-up.
A. He is incorrect. He may not have been aware of earlier applications.
Q. Did you correct him in your messages subsequently?
A. I don't know who the author is on that one.
Q. It is Markus Baumann, isn't it?
A. I don't know.
Q. Would you look at the next one. Someone named Marc is talking about Interlynx in Hamilton and stating that they don't even bother trying to introduce cable modem access, but went the traditional dial-up route. Correct?
A. That is what he is claiming. There may have been reasons why Rogers chose to do what they did in that particular area. It may have been the characteristics of their cable plant that made it unattractive to do any alternative.
Q. Would you look at the last page. Do you recognize the name Rick Smith, Vice President, Town Square Access?
A. I don't know who he is, but I see what is printed there.
Q. You see that he reports that in New Jersey, except for one system, all of the cable networks in New Jersey would die if you put cable modems on them, all cranking at top speed, and that there are many upgrades that need to be done in order for cable access to be practical and that it will take three or four years before the service is even offered.
MR. CHRISTIE: This is precisely the improper method of cross-examination that I brought to your attention earlier. It is the process of putting to an expert opinions that are not accepted as authoritative. It is not admissible to do so unless and until the expert recognizes the source as authoritative.
THE CHAIRPERSON: It is a document with which this witness has a connection. If he does not identify Rick Smith or has no knowledge of who Rick Smith is and disagrees with what Rick Smith says, then that is the end of the evidence, I suppose.
MR. FREIMAN: May I simply submit that I am putting to the witness material that was available to him in 1996 in order to frame the terms of the debate and the terms of the interchange on a system to which he subscribes and which he recognized as a place where one exchanges views with regard to what is going on in the Internet.
MR. CHRISTIE: The criterion of whether it is available to a witness is neither here nor there. There are all kinds of material, both credible and incredible, that are available to experts all over the world. That doesn't mean that it can be put to an expert in any given case.
In my submission, it is totally improper cross-examination.
MR. FREIMAN: If he wants to deny that all the material that was available to him on this date with respect to the question, What about access over cable, if he wants to say that everybody who responded to the question "What about access over cable?" was wrong, he can say that and that's fine. It will either enhance his credibility or otherwise. If he accepts any of it, then it has a different view.
THE WITNESS: Rick Smith's comments seem to be third-hand hearsay. He says he knows his father-in-law who knows some other people who claim that there is this problem with the cable system in New Jersey. That seems to be a pretty tenuous basis for informed opinion.
MR. FREIMAN:
Q. So you disagree with that.
A. It may reflect the situation in Sammons communications in New Jersey.
Q. But it does not reflect your own view of what was going on?
A. Not what I was familiar with.
Q. Look at the last one which begins "All." The author says:
"I'd like to backup Bernard's comments."
Bernard is you. Right?
A. I presume so.
Q."We've done some demos of available shipping cablemodem products. The units run at 4Mbps (2-way) and provide good speed. The 500Kbps or 4/10Mbps is the aggregate bandwidth of the channel rather than the bandwidth available to any single user. Some of the concerns listed are very valid. The units we've tested are simply bridges. They echo all the traffic on the segment to every other unit on the segment. It should be relatively easy to move to a filtering bridge model.
The largest engineering factor in deployment is the design of the CATV system. If the system is unidirectional (hub > home only) or has extremely narrow reverse (home > hub) bandwidth then the system will have to rely on other means for getting the home>hub data."
Then at the end he says:
"Bandwidth to the net is a real concern."
Would you agree with me that those are concerns that are raised by someone who even agrees with you?
A. Interestingly, in the first paragraph he makes the incorrect assertion ‑‑ and I am not sure what his expertise or experience was in cable modems. He says:
"The 500 Kbps or 4/10Mbps is the aggregate bandwidth of the channel rather than the bandwidth available for a single user."
That sentence is incorrect.
The 500 Kbps or 4/10Mbps is the bandwidth available for a single user, depending on where you are connecting to.
Q. So your final view of this News Group upon which you publish is that most of what it says is inaccurate and unreliable.
A. Not necessarily inaccurate and unreliable. Different users have different perceptions based on their experience in their areas.
Q. You disagree with everything that everybody says other than your own contribution.
A. That is not what I have said.
Q. What do you agree with?
A. The person in New Jersey who knows his father-in-law who thinks he knows somebody else, who claims that there are problems in the Sammons communication system, may indeed be accurate in his perception; I have no way of knowing. I am not even sure if Rick Smith knows. He thinks he has heard third or fourth-hand information.
The Newmarket Rogers trial ‑‑ I agree that Rogers Communications did do initial cable modem testing in the Newmarket area. They may indeed have had problems with the reverse channel capabilities.
This collection of commentary requests the opinions and experiences of several different people who have worked with cable modems.
MR. FREIMAN: On that basis, may that be the next exhibit, please.
MR. CHRISTIE: I object to this as an exhibit. It is not, in my submission, probative of anything. I could produce for any expert various opinions collected from sources that the expert does not recognize as expert sources.
It has absolutely no weight. It has no probative value. It is inadmissible because it does not constitute opinion evidence from any recognized expert. It is an indirect way of getting contradictory opinions of no expert value in to contradict an expert when he does not accept them. That is improper, in my submission.
THE CHAIRPERSON: Perhaps it could be marked having in mind that Mr. Klatt has identified his writing at page 2. What else does it show?
MR. FREIMAN: It shows the state of the debate. There is a number of propositions with which the tendered expert has agreed and a number with which he has disagreed. For what it is worth, that agreement or disagreement may be of use to the Panel.
THE CHAIRPERSON: Let me clarify one point. The only date that I see, other than the date on which this material was downloaded, is on page 1, 21/04/96.
MR. FREIMAN: That is correct.
THE CHAIRPERSON: Were all of these pages produced on the same date?
THE WITNESS: I believe what this author Markus Baumann has posted is a collection of e-mail responses he has received in a time frame prior to that date.
MR. FREIMAN: You will recall that the previous exhibit had a message from a Mr. Burke and had one response, which was Mr. Klatt's response, to that question. This is a series of additional responses to the same question that had been received as at April 24, 1996.
THE CHAIRPERSON: We will mark it.
THE REGISTRAR: The document will be marked as HR-32.
EXHIBIT NO. HR-32: Document entitled "the discussion network" containing responses to Markus Baumann re "What about access over cable"
MR. FREIMAN:
Q. Mr. Klatt, you will remember that when we ended last time we were looking at the question of mirror sites and how easy it is to find documents that have been deleted from a controversial site once they have lost their home site. You will remember that we looked at one document that had been on your web site that we could call controversial, the Charlemagne Hammer Skinheads page. Do you remember that?
A. I remember some discussion on that.
Q. You will remember that we tried to find that document by some other way and were not able to do it. Correct?
A. True.
Q. That was not the only controversial page on your server, was it, Charlemagne Hammer Skinheads?
A. I guess it depends on who you would ask and what they mean by "controversial."
Q. For instance, I have in front of me a document called "Teutonic Knights, An Aryan Liberation Army Production." That was a controversial site, was it not?
A. I don't recall the content with that name. If you have some particular example ‑‑
Q. Why don't I give you a copy and see if you can recognize it.
Look at the bottom of the page. You see that the URL is alpha.ftcnet.com/~wolf8814/ala.html. That refers to the fact that it is located on one of your servers at ftcnet. Correct?
A. I recognize the "wolf8814" as a client designation.
Q. This was one of the pages that was on your server. Would you agree with me that, even by virtue of the swastika on the front page, this was a controversial site?
A. I don't think the presence or absence of a swastika would make something controversial.
Q. So, in your view, having a swastika and the words "National Socialist Primer" would not make this controversial.
A. Not any more than a hammer and sickle and "Communist Party of Canada" would.
Q. This is no longer on ftcnet, is it?
First of all, could we make this the next exhibit. The witness has at least identified it as coming from his web site.
A. One thing should be corrected. I indicated that it came from a client.
Q. From a client's web site on your server.
THE CHAIRPERSON: HR-33.
THE REGISTRAR: The document will be HR-33.
EXHIBIT NO. HR-33: Document entitled "Teutonic Knights, an Aryan Liberation Army Production"
MR. FREIMAN:
Q. Can we agree that it is no longer on ftcnet.com?
A. I am pretty sure it is off.
Q. Could you see if you can find a mirror for it.
A. I tend to doubt that there would be a mirror unless the author has arranged for somebody else to take an interest in mirroring it.
Q. So you will agree with me that it is not necessarily the case that a web site that is taken off a server will automatically find a mirror.
A. Not necessarily, no.
Q. In order to do that, as you said, the author has to arrange for a mirror.
A. Not necessarily. Other people who may have an interest in it, could ‑‑
Q. Someone who has an interest would have to arrange for a mirror.
A. Somebody would have to arrange a mirror; that is correct.
Q. The arrangement goes two ways, does it not? Somebody has to arrange for a mirror and somebody has to agree to carry the mirror.
A. The word "agree" implies a lot of things.
Q. You can't put a web page on to a server against the server's wishes.
A. I don't know about that.
Q. Isn't the usual way of doing this to arrange with a server and to make some arrangement to have carriage?
A. Internet Service Providers seem to take a wide range of views on what they are willing to host at various times.
Q. At the very minimum, somebody has to pay somebody something to carry it. Right?
A. Not necessarily.
Q. Or the server has to agree to carry it for nothing.
A. That may be the end result. Whether or not they explicitly agree to it, I don't know.
Q. How do you get on to a server without the server knowing about it and without paying the server?
A. For example, at a university site it is not that unusual. I am aware of several instances where controversial material has been mirrored at university sites and my understanding is that there was no explicit approval given by the university management that that should be carried out.
Q. Somebody at least has to arrange it. You have to find somebody at the university who wants to carry it.
A. Not even find somebody. Somebody at the university may have taken an interest in the controversy and decided to mirror it on their own initiative.
Q. If it is not on a university web site, then the ISP has in some measure to agree either to accept money or simply to say, "This is a good thing. I believe in freedom of speech. I am going to carry it at my expense."
A. Not even that characterization is thoroughly accurate. If the user already has an existing account at an ISP and they decide that they want to mirror that content under their own account, they can copy the content over and make it available under their own account without the knowledge of the ISP.
Q. You say that you did not think "Teutonic Knights" would be mirrored. Why do you think they are not going to be mirrored?
A. My best recollection is that the user seemed to be a teenager. The impression I got was that he was merely publishing this material for his own interest and that of his friends. It is possible that there may be a mirror; I have not looked for it.
Q. Do you want to try it?
A. If you are interested or if the Panel wants to take the time to look for a mirror ‑‑
Q. Have a look and see if you can find "Teutonic Knights."
A. Going back to our old friend Alta Vista, I did not mean to mislead the Panel in previous attempts to use the search engine. The operations were a feature that could be used on the search engine in earlier versions of this software interface, but the current implementation is one that I am more familiar with.
‑‑- (A Short Pause)
There is a lot of references to the phrase "Teutonic Knights", but whether or not any of that content refers to this particular user that placed this on his web site ‑‑ can you think of any more descriptive terms that might narrow it down?
Q. No. That is my point, sir. Try to find some descriptive terms to narrow it down.
The question is whether a user looking for this material, once it has been removed from a web site, is going to have an easy time finding it.
You have typed in "Teutonic Knights and Hitler."
A. It looks like "Hate Watch" has a listing of something. That might be a possibility.
Q. Let's find it.
A. Presumably, the rationale for using this PC is the ability to log ‑‑
Q. To log this computer on to our system back at the office and get Internet access remotely.
A. But it is also to make a record of whatever comes up on the screen.
Q. Not necessarily, no. The rationale is much more simple than that, Mr. Klatt.
A. That is certainly one feature that can be used. If you just wanted Internet access, you could get better performance than this.
Q. What you should do is get the "Teutonic Knights" page and then do an advanced search within those pages.
A. That is what I had hoped to do.
There appears to be a link, but that particular user's web page was deleted.
Q. As I understand it, sir, you do not necessarily agree with everything that is on your web server, do you?
A. I don't make it my business to go through and decide whether I agree or disagree with the content that users post to their web pages.
Q. In fact, you wrote a letter to the Attorney General of British Columbia setting out your position and inviting him to work with you to identify offensive material which you would then take off.
A. The letter was somewhat to that effect.
Q. Wasn't the letter to the effect that you would take it off if any offensive ‑‑
MR. CHRISTIE: I don't think this should be a contest of how much he can remember.
THE CHAIRPERSON: If he has a document, he will present it to him.
MR. CHRISTIE: I think he should not be cross-examining as he is until he does.
MR. FREIMAN:
Q. Was it your intention to take off material that was identified as offensive?
MR. CHRISTIE: To whom? To him?
MR. FREIMAN:
Q. Material that was identified by the Attorney General of British Columbia as offensive. Was it your intention to remove it?
A. I think the criteria for removal would be based on whether or not it is illegal.
Q. If it was identified to you, was it your intention to remove it?
A. There are lots of things on the Internet that I might personally find offensive.
Q. If it was identified by the Attorney General of British Columbia as offensive, would you remove it? Was that your intention?
A. From my recall of the letter, if there was material that was in violation of Canadian law, I would remove it.
Q. So you required the Attorney General to say that it was in violation of Canadian law or you required a court to determine that it was in violation of Canadian law?
A. I believe the legal system is the best party to determine whether something is legal or illegal.
Q. This is a letter dated July 22, 1996. Correct?
A. Right.
Q. Signed by you?
A. Right.
Q. Can you confirm that this is, in fact, the letter that you sent to the Attorney General of British Columbia on that date?
A. It appears to be a posting retrieved from efc's archives.
MR. FREIMAN: Could that be the next exhibit, please.
THE REGISTRAR: The letter will be marked as HR-34.
EXHIBIT NO. HR-34: Letter dated July 22, 1996 addressed to The Honourable Mr. Ujjal Dosanjh from Bernard Klatt
MR. FREIMAN:
Q. You will note that you express your willingness to review under the guidance of the Attorney General's staff any web pages that the Attorney General's Office might wish to bring to your attention. Correct?
A. True.
Q. What was your intention to do as a result of that review?
A. If they provided some legal basis that indicated that the material on a particular web page was in violation of Canadian law, we would have it removed.
Q. What, in your view, would constitute an indication that it was in violation of Canadian law?
A. I am sure there are all kinds of things that would be considered in violation of Canadian law.
Q. What would be an indication that it was in violation of Canadian law? Did you require a court order or a court determination, or simply the opinion of the Attorney General?
A. My understanding is that the Attorney General is a law enforcement officer.
Q. So it would have been enough for you if he had identified them as offensive and illegal, and you would have removed them.
A. He didn't seem to have any particular concern. The response I got back from this letter seemed quite non-committal.
Q. Let's look at the fourth paragraph. Your view was then that individual accountability rather than the accountability of an ISP was the correct way to go.
A. True.
Q. So it was the party who created the information or the party who put the information on the web site. Correct?
A. In terms of the Internet content, it would be the individual who uploads the material to the site.
Q. And that is not the ISP?
A. No.
Q. It is not the web master?
A. The web master may create their own content.
Q. But not necessarily.
A. True.
Q. And it is not the Business Contact on the Internet?
A. Unless they are the author.
Q. And it is not the Administrative Contact on the Internet?
A. It could be if they are the author.
Q. But the fact that they are the Business Contact or the Administrative Contact does not, in and of itself, render them responsible for content, does it?
A. Not that I would see.
Q. You say that you don't necessarily agree with what is on your web server, but sometimes you do agree with things on your web server, don't you?
A. It is possible.
Q. When you do, sometimes you offer assistance in the form of free web hosting or web hosting at greatly reduced cost. Correct?
A. Not necessarily because I agree or disagree with the content.
Q. Why would you do it otherwise?
A. I am an activist for free speech rights.
Q. So you provide free access to those web sites which you consider to be in support of free speech?
A. That is not necessarily a criterion.
Q. What is a criterion?
A. There is a variety of factors that may go into the decision.
Q. Tell me what they are.
A. Is there any particular case that you have in mind?
Q. I am just asking: If I have a web page and I say, "Mr. Klatt, I don't have any money, but I want this up" ‑‑
A. No, that would not necessarily qualify.
Q. What would qualify?
A. If the author has a history of being removed from Internet Service Providers based on criteria that are not based on a legal, rational basis. If they have encountered difficulty in getting their web pages hosted due to harassment or similar attempts to suppress free speech.
Q. Can you recall the identity of some web sites that you put on to your server gratis as a result of that test?
A. I don't put the web sites on.
Q. But you have pages that you have agreed to have on your server gratis?
A. It is not submitted to me that I agree or disagree.
Q. You said that you agreed to provide that space to pages for individuals who have a history of having their material removed.
MR. CHRISTIE: He said removed without legal or rational basis. Please quote him correctly.
MR. FREIMAN:
Q. Removed without legal or rational basis. I take it that you at least have to look at the material to determine whether (a) it has been removed and (b) whether there is a legal or rational reason for it, don't you?
A. No, that is not necessarily the case.
Q. How do you come to the conclusion that it has been removed without legal or rational basis without reading what you are putting on?
A. I don't review the material that a user chooses to post.
Q. I am talking about material that you post gratis.
A. I don't post material for users.
Q. Material that you allow a user to put on your web site without payment.
A. I don't look at their material in advance.
Q. So you allow everybody on without payment?
A. That is not what I said.
Q. Then how do you allow people to use your web server without payment? What do you do? How do you determine that they have had material removed without legal or rational justification?
A. Based on what they told me.
Q. So I have to say, "Mr. Klatt, I am in trouble. I can't get my site posted anywhere else. Would you put it on," and you will.
A. In some cases, that would happen.
Q. Why in some cases and not in all cases?
A. Somebody may just ask for free web space. There are plenty of web sites that are now available for hosting free web pages.
Q. So what do you ask them to show you in order to determine that they have had their material removed without legal or rational basis?
A. I don't necessarily ask them those particular questions. I remind them that the material has to be legal in Canada to be hosted on our server.
Q. What do you do to determine whether it qualifies (a) as legal in Canada and (b) as having been removed without legal or rational justification?
A. I don't make the determination of whether it is legal in Canada. I remind the user/author that they are responsible for ensuring that the material is ‑‑
Q. So you don't look at it on the basis of determining whether it is legal in Canada; you rely on the author that, in their view, it is legal in Canada. Right?
A. I am not even sure that the user is the one who would determine whether or not it is legal.
Q. Why do you remind them that it has to be legal in Canada?
A. By e-mail.
Q. Why do you remind them, if they can't tell or you can't tell?
A. It seems that they should be aware that that is one of the criteria we have, that we don't host material that is deemed to be illegal in Canada.
THE CHAIRPERSON: Mr. Klatt, did I misunderstand your evidence? There are occasions when you offer free access?
THE WITNESS: We have had a few clients who have indicated that they have had trouble having their material hosted at other Internet Service Providers.
THE CHAIRPERSON: Is it, further, my proper understanding of the evidence that you do that, for example, where there is in your judgment a suppression of free speech?
THE WITNESS: That is certainly one of the major criteria.
THE CHAIRPERSON: So you would have to judge the material in terms of involving a suppression of free speech, would you not?
THE WITNESS: Often the context is communicated in the e-mail where they are asking for an account on our server. They will sometimes indicate that the material was deemed to be something that, for example, the Simon Wiesenthal Center or some other special interest group took exception to and applied pressure to their previous hosting site that caused them to lose their web hosting account.
MR. FREIMAN:
Q. Is that the criterion, that a special pressure group has caused them to lose their previous web hosting?
A. That is one of the criteria. If somebody came to me and said that their material had been removed because of a court order in Canada, that would be a lot more cause for concern. I would not expect that a client who had the material removed because of a court order would likely gain access.
Q. Can you give me some examples of material that you have posted gratis and have allowed to be posted gratis as a result of the fact that pressure groups have made it difficult for them to find hosting elsewhere?
A. Some of the Freedom Site material.
Q. The Freedom Site material was the material that Mr. Lemire had originated. Correct?
A. Right.
Q. Anything else?
A. We have had a number of clients come and go.
Q. Give me some names.
A. There is one called "Aryan Dating Page."
Q. That, if I understand correctly, was a service to make sure that Aryan women found Aryan men and there was no racial mixing.
A. I am not sure what the authors intended.
Q. Surely you looked at it before you put it on the web.
A. No, that is not true.
Q. Not at all?
A. We do not look at material before it is posted on a web site.
Q. It was enough that somebody said, "I am having trouble posting this," and you post it.
A. No ‑‑
Q. Sorry, you give access on your server. "Simon Wiesenthal has opposed this," and that is enough for you to allow it to be put on.
A. No, that is not necessarily a criterion.
Q. What else is a criterion?
A. Some users get removed from, for example, America Online or Geocities or other web hosting sites.
Q. Give me some other examples. We have the Aryan Dating Page.
A. Maybe you can think of some that you are interested in.
Q. I would like to suggest to you that sometimes you do agree with the content, and for good reason. It is content that perhaps should be circulated, not because somebody has taken it off but simply because you agree with it or you agree with the cause. That is the case, is it not?
A. I believe strongly in freedom of speech and freedom of expression.
Q. For instance, Mr. Christie's web page is hosted. You provided support, while you were still running, for that to be run on your server without payment. Correct?
A. I don't think it is Mr. Christie's web page.
Q. Sorry, The Western Canada Concept.
A. I am pretty sure we did have The Western Canada Concept.
Q. Without payment?
A. I don't recall if there was payment or not.
Q. Unfortunately, the URL at the bottom has gone the way of photocopiers, but you will agree with me that this is a page from your web server? I see that all the addresses are alpha.ftcnet.com.
A. That is what it shows.
MR. FREIMAN: Could this be the next exhibit, please.
MR. CHRISTIE: Could I ask for the relevance?
MR. FREIMAN: I am establishing Mr. Klatt's willingness or unwillingness to support ideas with which he agrees.
MR. CHRISTIE: Unless my friend is prepared to tender some evidence that this is a page that was hosted on his server without payment ‑‑
MR. FREIMAN: We are going to do that.
MR. CHRISTIE: I would be interested to know that. The fact of the matter is that it is not really relevant to anything pertaining to this case.
THE CHAIRPERSON: My colleague points out the printing halfway down the page.
MR. FREIMAN: I would like to draw your attention ‑‑ first, could we have an exhibit number, please. He has identified it as something that is on his web server.
Q. Halfway down the page you see: "This page is made possible by the generous support of Bernard Klatt." That means that you provided financial support to assist with this page. Correct?
A. No, that is not what it means.
Q. What does it mean?
A. It doesn't say anything about financial support.
Q. What does it mean then? You are Bernard Klatt. It is thanking you for generous support. What is your generous support?
A. I am a member of The Western Canada Concept.
Q. Is that what makes this page possible, that you are a member of The Western Canada Concept? It says that this page is made possible by your generous support, and I would like to know what your generous support is.
A. My recollection is that a member of The Western Canada Concept expressed interest in hosting a web page.
Q. And...?
A. We made an account available to them.
Q. For nothing?
A. I don't recall.
Q. Can you think of anything else that constitutes your generous support to make the page possible?
A. I am a member of The Western Canada Concept.
Q. Again, how does that make this page possible?
A. As I previously mentioned, I made an account available to The Western Canada Concept supporter that wanted to create this web page.
Q. You made the account available at no cost or at extremely reduced, nominal cost.
A. That was probably the case.
MR. FREIMAN: May this be the next exhibit?
THE CHAIRPERSON: HR-35.
EXHIBIT NO. HR-35: Copy of The Western Canada Concept web page
MR. CHRISTIE: What is the relevance of that except to criticize a person's political beliefs? Is there some purpose to that? Maybe that is the object of these proceedings, to drag people's political thoughts through the process and turn it into a political trial. Is that really relevant?
THE CHAIRPERSON: I am not precisely sure where it is going to fit into the evidence in terms of final argument, but we will identify it in any event.
MR. CHRISTIE: If that is a criterion for the admissibility of all documents, I would be interested.
MR. FREIMAN:
Q. I want to suggest to you, sir, that the document we just looked at, HR-35, is only there as an example of the fact that you do provide support for ideas with which you agree, and that that also carries over into your willingness to carry mirror sites.
A. I am not aware that we have hosted mirror sites.
Q. Let me show you a document. This is a document that was downloaded from the Zundelsite. Do you recognize the URL in the top right-hand corner?
A. Right.
Q. This appears to be a listing of Zundel-Mirrors or Spiegeladressen in German, in case the reader is reading the German language, and it lists a number of locations where, as you say, it is possible to read the contents of the Zundelsite as a mirror. That is what it appears to say, is it not?
A. That would be the implication.
Q. If you go down to the fifth one listed, what does it say?
A. It looks like there is a reference to a Zundel-Mirror in the Freedom user account.
Q. That is one of the accounts that you made available for nothing to Mr. Lemire?
A. He did have an account on the server.
Q. You made this available for nothing. You just told us that not two minutes ago. I asked you for the names of locations that you provided without payment, and you said the Freedom site.
A. That was one, yes.
Q. I am suggesting to you that here is an example of something else that you approved of ‑‑
A. No, that is not a correct assertion.
Q. You didn't approve of the Zundelsite?
A. I didn't say that either.
Q. You carried it without payment. This is not a case of someone who had been removed from another site, is it? Nobody had removed the Zundelsite from webcom.
A. No, I don't believe so, but the user Marc Lemire had been removed from the Internet Service Provider here in Toronto.
Q. So the result was that at no cost you were providing a location for Mr. Zundel's work.
A. No, I was providing a web site for Marc Lemire.
MR. FREIMAN: Thank you. Those are my questions. Could this be the next exhibit.
MR. CHRISTIE: In terms of re-examination, do you want me to wait until all the parties have finished?
THE CHAIRPERSON: I think that would be preferable, yes. HR-36.
EXHIBIT NO. HR-36: Document entitled "Currently Active Zundel-Mirrors: (Spiegeladressen)"
THE CHAIRPERSON: We will take our morning break.
‑‑- Short Recess at 11:10 a.m.
‑‑- Upon resuming at 11:42 a.m.
THE CHAIRPERSON: Mr. Kurz, please.
CROSS-EXAMINATION
MR. KURZ:
Q. Mr. Klatt, my friend Mr. Freiman asked you earlier this morning about sites that you provided free hosting services for. You mentioned the Freedom site and you mentioned the Aryan Dating Page. Is that correct?
A. Right.
Q. Do you remember any other sites that you provided free hosting services to, sir?
A. Do you have a list? I might be able to identify some.
Q. I just want to ask if you remember any other sites that you provided free hosting services to.
A. That would be quite a few. I am not sure ‑‑
Q. Not quite a few. I am just asking you to name a few of them.
A. We have hosted quite a few web sites. I can't recall specifically which ones ‑‑
Q. You hosted quite a few for free? Is that your evidence, sir?
A. No, not necessarily for free.
Q. How many sites do you believe you have hosted for free?
A. Maybe half a dozen.
Q. We know of two. Could you name, to the best of your ability, the other four.
A. I think there was one called Europa.
Q. Anything else?
A. I can't recall.
Q. Let me see if I can assist you. Can I suggest to you, sir, that one of the sites that you hosted for free was called "Our Hero?" Do you recall that name?
A. Yes, I recall that that was one of the clients we had.
Q. "Our Hero" was actually a web site that was on ftcnet; is that not correct?
A. That was one of our clients.
Q. Did you charge them or did they get their site for free?
A. They did provide some programming services for us.
Q. So they did not pay you anything, and they offered you some in-kind service. Is that what you are saying to me?
A. Correct.
Q. What kind of programming services?
A. They developed some of what we call proc-mail scripts
Q. Who was it that did this?
THE CHAIRPERSON: Mr. Fromm, please.
MR. FROMM: Mr. Chairman, Mr. Kurz' line of questioning about who paid what and who got something for free ‑‑ surely these types of questions were not asked to any of the Commission's witnesses. I don't recall Professor Schweitzer being asked if he delivered a lecture to B'nai Brith for free or this type of thing. Surely this has nothing to do with this expert's testimony as to whether or not the Internet is in fact telephonic.
Mr. Freiman is always complaining about every moment being precious. Certainly what the financial arrangements were on Mr. Klatt's service has nothing to do with his expert testimony. These questions are away off the track.
MR. KURZ: Mr. Fromm seems to forget that exactly what he says was not done with Professor Schweitzer was in fact done with regard to Professor Schweitzer. Mr. Christie, in fact, asked Professor Schweitzer about his payment arrangements in terms of writing a book for the American Anti-Defamation League, and no one objected.
THE CHAIRPERSON: We have already ruled on this line. Please continue.
MR. KURZ: Thank you, sir.
Q. You were telling me that the "Our Hero" page ‑‑ I believe my last question was: Who actually did the work for you on behalf of the "Our Hero" page?
A. The user for that account.
Q. Who was that?
A. I don't remember his name.
Q. You don't have any recollection of who it was that did this work for you?
A. The communication I had was only by e-mail.
Q. So you never met the person?
A. No.
Q. And he did this work for you by e-mail?
A. Correct ‑‑ in terms of being able to do the work, his access was referred to as a shell account so that he could do his development work on the server.
Q. Did he do one bit of work for you or a lot of work for you?
A. I don't know how much time he would have spent on it.
Q. But he did it only once, I take it?
A. I don't know how long it took him to do it.
Q. In return for whatever it is that he did, you hosted the "Our Hero" page for free. Is that correct?
A. How could you call it free?
Q. You didn't charge him any money, did you?
A. He provided the service. That doesn't necessarily imply that it was free.
Q. Let me repeat my question. Please listen to it and, if you don't understand it, please let me know.
In return for whatever service he provided to you, sir, you gave him hosting services for free.
MR. CHRISTIE: I object to the question. It is a non-sequitur. Obviously, the witness answered it correctly once. If there was service provided, it is not for free.
THE CHAIRPERSON: The exchange of services is ‑‑
MR. KURZ:
Q. You did not charge him any additional money; is that correct?
A. Correct.
Q. You never charged the person whom you don't remember any additional money. Is that correct?
A. That is correct.
Q. For all the time that you hosted his web page; is that correct?
A. That is my recollection.
Q. Let me ask you if you can identify the "Our Hero" page. I am showing you a document which says at the top "The Library: A Learning Center for all Gentiles Uniting Against the Jewish Conspiracy, Page 1 of 1". This is the home page of the "Our Hero" web page. Is that not correct, sir?
A. I recognize some of the graphics from some of the coverage I have seen on TV.
Q. If you look at the front page under "Internet Address," the first line is "http://alpha.ftcnet.com/~ourhero/main.html." Correct?
A. That is what it shows.
Q. Unfortunately, the photocopier has cut off the footer, but it appears that this is the "Our Hero" web page. Is that correct?
A. Possibly at some point in time.
Q. At some point in time. Do you recognize the picture on the front page?
A. Not that one.
Q. I suggest it is Adolf Hitler. You don't recognize that?
A. If you say so.
Q. You have never seen the "Our Hero" page? Is that what you are telling me?
A. I have seen portions of it broadcast on TV.
Q. You have never seen portions of it while it was on ftcnet?
A. The second page, I recognize the graphics on it.
Q. That is a page called "Essays." Just going back to page 1, if you look at the second line under "Internet Address," it has the same http://alpha.ftcnet.com" and then it says "ourhero/essays:html." This appears to be the "Essays" page that you said you have seen before.
If you turn to the next page, which is 2 of 6, at the top it says: "Breeders: help stop the extinction of the white race: healthy White Women and Nordic Sperm donors needed!"
Going down lower: "Biological homosexuality vs homosexuality the j*w-inspired social movement." Do you know what that term "j*w" is?
A. Where are you finding it?
Q. In the bottom paragraph of that first set of underlined lines, just above the word in large bold letters "J*WS." and a picture.
Do you know what that expression, J*WS, stands for?
A. I presume the author would have something in mind.
Q. I am asking you whether you have.
A. I don't know. I could guess.
Q. Can you guess? I am just asking for your understanding.
THE CHAIRPERSON: Maybe the last line on that page would help you.
THE WITNESS: It appears that he may be referring to the letter "e" wherever he puts the asterisk.
MR. KURZ:
Q. Do you know why the asterisk is placed there?
A. No, I don't.
Q. Do you have any idea? Is it the idea that it is so-called Jews, that the Jews are not real Jews? Is that thought expressed?
A. I don't know why he chose to represent his material in that fashion.
Q. That is not what I am asking you. I asked you whether you have heard that expression or that thought.
A. Which concept?
Q. The concept that people who call themselves Jews are not true Jews, that they are not the descendants of the Israelites in the Bible but, rather, Hussars who masquerade as Jews.
A. There may be some groups or individuals who believe that.
Q. So you are aware of that belief?
A. I have heard of it.
Q. Just continuing on, there is 6 of 6 and then there is another page that says "Links" with the same graphics.
THE CHAIRPERSON: Sorry, what page are you on?
MR. KURZ: If you continue past page 6 of 6, the next page is 1 of 10.
THE WITNESS: I don't think that is in the material we have.
MR. KURZ: What I have handed out appears to be an incomplete set.
MR. CHRISTIE: If it is the intention of Mr. Kurz to introduce this, I would object. There is no evidence of its authenticity. The witness does not claim to have seen it. Nobody else is called to identify it. It would be, therefore, totally irrelevant unless somebody can say that is what is depicted on this web server.
MR. KURZ: I have not yet attempted to introduce it. If I could finish my questioning ‑‑
MR. CHRISTIE: The relevance of it would seem to be peripheral. If it is not proven to be authentic, to be something on this web site ‑‑ not that it has any real relevance unless the witness has adopted it or has included it with knowledge, and he has not said that. He said he recognized the graphics from seeing them on television, the graphics on page 1 of 6 ‑‑
MR. KURZ: Mr. Chair, if we could stop for a second.
THE CHAIRPERSON: The linkage at the moment, as I have it, is that "Our Hero" ‑‑
MR. KURZ: I apologize for interrupting, but perhaps Mr. Klatt should be out of the room while this discussion takes place.
‑‑- Witness Withdraws
THE CHAIRPERSON: The linkage so far seems to be that "Our Hero" is one of the organizations with which he has an arrangement by way of an exchange of services.
MR. KURZ: Yes.
THE CHAIRPERSON: Where do we go from there?
MR. KURZ: This goes to the issue ultimately of credibility, of Mr. Klatt's own interest in this kind of material, whether he is a supporter of this kind of material. I would submit at the end of the day that it goes to his credibility in terms of what kinds of answers he gives and whether there is a bias in favour of this kind of material.
MR. CHRISTIE: If Mr. Klatt had said that he recognized this as being from his web server, I would agree that it has some relevance for that purpose. Until he does, it is my submission that it is really introducing something to which there is no proof of authenticity and the content of which is necessary to attack his credibility.
MR. KURZ: I had planned to lead him through it to assist him in identifying this document, and then I planned to go back to ask him a few more questions before attempting to introduce it as evidence.
THE CHAIRPERSON: Do I gather that you are going to take these back?
MR. KURZ: Yes, I am going to take these back. What I am going to give you has the identical first six pages, but the other pages that I intended to rely on will be included as well. I apologize for this misunderstanding. I will lead him very quickly through this new set.
‑‑- Witness returns to the stand
MR. KURZ:
Q. Mr. Klatt, you have been given a new copy. Just to be sure, I will lead you very quickly through what we just went through before, just to ensure that the first six pages of the document I am handing you now are identical to the first six pages of the other document.
If you go to page 1 again, the header says: "The Library: A Learning Center for all Gentiles Uniting Against the Jewish Conspiracy, Page 1 of 1." Correct?
A. Right.
Q. Then under "Internet Address" there is a series of Internet addresses. Those are Internet addresses on ftcnet. Is that not right?
A. Yes.
Q. Those are Internet addresses that you hosted on ftcnet on behalf of "Our Hero." Is that not correct?
A. We set up an account for the user with the Internet name of "Our Hero." Whatever content he chose to upload is whatever he put there.
Q. I understand that, but that is not what I am asking you, sir. Please listen to my question.
What is reproduced here in the middle of this document under the words "Internet Address" are, in fact, the Internet addresses that were provided by ftcnet to the "Our Hero" people. Is that not correct?
A. The ftcnet.com is the domain name for our Internet Service business. The "Our Hero" is the user account. After that is names of documents they chose to put on line.
Q. Exactly, and these are the addresses of those documents that he put on line on ftcnet. Is that not correct?
A. The user creates whatever names he wants for his documents. We didn't provide the names for his documents.
Q. I didn't ask you that question. Please listen to my question.
These addresses are the addresses on ftcnet that the particular documents had. For example, the document entitled "Essays", which we have gone through before and we will go through very briefly again, had the address on the second line under "Internet Address." Is that not correct, sir?
A. It appears that there was a document by that name. What it contained I don't know.
Q. The document that says "Essays" on the next page, on page 1 of 6, I am suggesting to you is the document that was described on the second line of the column under the words "Internet Address."
A. There is a suggestion all right, but the other material which we have seen off the Internet usually has some indication of where it came from.
Q. It appears that the footer is cut off. Right?
A. I don't know what was at the bottom of the page.
Q. That is what I am saying; it was cut off. You saw, though, at some point the document from "Our Hero" that said "Essays," didn't you?
A. No.
MR. CHRISTIE: I did not hear the answer to that question.
MR. KURZ: He said "no."
Q. Did you see a document called "Links?"
A. Not that I recall.
Q. My understanding was that you said earlier that you had seen a document called "Links."
A. I have seen the graphics on that page that has the word "Links" on it.
Q. Where did you see those graphics?
MR. CHRISTIE: What page are we talking about?
THE WITNESS: Page 1 of 10. Actually, page 1 of 6 looks like the same thing.
MR. KURZ:
Q. Where did you see those graphics?
A. On a CHBC-TV news coverage.
Q. CHBC, is that a television station in your area of British Columbia?
A. Correct.
Q. What they did was that they displayed these and they said that they were on a site that was on ftcnet, did they not?
A. I don't recall that they used that wording.
Q. Tell me the wording that they used or the context in which these graphics were on television, Mr. Klatt.
A. I would have a hard time remembering what wording they used in their TV broadcast.
Q. You remember seeing them. Tell me what the context was in which you saw these graphics.
A. I think they had some coverage with Sol Littman at his press conference in Vancouver.
Q. Sol Littman held a press conference in which he made some suggestions that ftcnet was hosting a lot of hate groups. Is that not correct?
A. I wasn't at the press conference, but that may have been ‑‑
Q. I am not asking what was at the press conference. I am asking you what you saw on television. You are the one who referred to some television program, and I am just trying to get you to tell me what you saw. I just need a straight and clear answer from you.
A. There was a variety of coverage which showed some of these graphics that you see on page 1 of 6 and 1 of 10. There was an interview with Sol Littman, I believe. I think there was an interview with the local newspaper publisher. I think there were some comments from one of the Town Council people.
Q. Your understanding of the reason that the graphics were on television is that these graphics represented graphics that could be found on a site hosted by ftcnet.
A. I don't recall that that statement was made in the TV coverage.
Q. I am not saying that that statement was made. I don't think it is that hard a question, Mr. Klatt.
MR. CHRISTIE: It seems to me that it is. That is what my friend has been asking over and over again four or five times: Do you remember what was said in the television broadcast? He gives him an estimate. Then my friend gets an answer that he doesn't recall the exact words, and he tells him that that is not what he asked him. I thought that was what he asked him.
THE CHAIRPERSON: Put it in another way.
MR. KURZ:
Q. Do you have any memory of the context in which these graphics were placed on this news show, sir?
A. I believe I attempted to answer. I believe it was shortly after Sol Littman gave a press conference in Vancouver. There were pictures of the town of Oliver. There was a short interview with one of the Town Council people. I think there were some commentary from the newspaper publisher.
Q. And these graphics.
A. Were part of the coverage that I recall seeing.
Q. And you don't recall the words that were used with regard to these graphics. I am suggesting to you that there was some indication or suggestion in the program that these graphics could be found on ftcnet, on some site hosted by ftcnet.
A. If it is important to your presentation, I think we can still retrieve the copy I made of the TV coverage that I remember recording.
Q. Do you have it?
A. No, I don't.
Q. You can send it to us; is that what you are saying?
A. I think I can probably find it.
Q. Perhaps you can send it to us. Rather than waste a lot more time on this, you could send it to us and, if we have any further questions arising out of that, we can reserve our right to ask questions at that time.
A. Or you could ask CHBC directly, because my recording may not include the first part of it.
Q. I will be happy with your recording.
So that we don't have to leave the whole thing until later, you saw these graphics on television, and I am suggesting to you that you understood that these were suggested by the program to be found on a site hosted by ftcnet.
A. I can't say for sure whether or not that is what the TV coverage specifically stated or implied.
Q. You gave no thought to why these graphics were on a news report or a television program special ‑‑ what was it?
A. I think it was part of the evening news report.
Q. So you gave no thought to why graphics like these were on a news report about Sol Littman's complaint about your web server.
A. I was interested in the coverage.
Q. But the fact is that these designs, these graphics, were used in that context, and you did not give any thought to why that was?
A. I presume they considered it eye-catching.
Q. You didn't have any thought that maybe this was on your site?
A. It is not on my web page.
Q. But would you agree with me that these graphics were on a site hosted by ftcnet?
A. They may have been.
Q. That is not what I am asking, whether they may have been. I am suggesting to you that they were, in fact, on the "Our Hero" site on ftcnet.
A. Do we have any web browser printouts that indicate that?
Q. Here is a printout. This is a printout that we did when somebody went into that site and printed out the "Our Hero" site.
A. I am not sure, but the "Our Hero" site may still be on line somewhere.
Q. Do you know where it is? Can you find it?
A. I might be able to find it.
‑‑- (A Short Pause)
Maybe it is not on line.
Q. Unfortunately, I can't read what it says.
A. The message is that it is unable to locate the server.
Q. Is there any other way that you can find it?
A. I could try a search for it, I suppose.
‑‑- (A Short Pause)
Q. Because I can't see from where I am, did you type in the words "Our Hero"?
A. I am trying to think of some other key words that might be useful to put on there.
Q. Do you want to try the word "eugenics?" Somebody has suggested "j*ws."
A. It is still giving us the message that it is unable to locate that server.
Q. That means that the server is probably down by now?
A. It could be.
Q. Is there any other reason?
A. They might have network problems. It might be that a table is being updated accurately.
Q. You saw the graphics on a television program. In fact, just to be clear, the graphic that we are looking at ‑‑ we have a picture that I am saying is Adolf Hitler, and you say you don't know. Is that right?
A. I believe it may be.
Q. The "our hero" of the "Our Hero" web page is Adolf Hitler, is it not?
A. Maybe he is referring to himself; I don't know.
Q. You never bothered to look? You hosted this guy for no fee other than whatever work-in-kind he did for you and you didn't bother to look at the site? Is that what you are saying?
A. It seems to be a hard concept to grasp, that Internet Service Providers do not typically spend time monitoring and evaluating the content that users put on their web pages.
Q. I didn't ask you about monitoring or evaluating. I just asked whether you looked at it, even in just making sure that the link was okay.
A. I certainly would not be involved in verifying whether the links were okay.
Q. Did you ever look at that site? The answer is "no?"
A. At what point in time?
Q. At any point in time, at any point between, let's say, 1995 and today's date, did you ever look at the "Our Hero" site?
A. I might have.
Q. You might have. Would you have looked through the site when you might have?
A. I am sure I would not have.
Q. If you were to link to a site, would you want to see the site before you linked to it?
A. Not necessarily.
Q. You would link to a site you don't know?
A. If it contained something that was possibly of relevance.
Q. How would you know that something was possibly relevant unless you looked at it?
A. By the title or description.
Q. Does the title or description "Our Hero" tell you anything about the "Our Hero" web site?
A. Not particularly.
Q. So you would not link to "Our Hero" without having looked at it, I take it.
A. I certainly could.
Q. But you wouldn't, would you? If the title doesn't tell you anything about it, you are not even sure if you have seen it; isn't that right?
A. At what point in time?
Q. I just asked you that, and I said from 1995 to today's date. You said that you were not sure, but that you might have.
A. I think I have looked at it since the summer.
Q. You have looked at it since the summer. When did you look at it since the summer?
A. Late summer.
Q. When in late summer?
A. I don't know what date.
Q. What did you see when you looked at it?
THE CHAIRPERSON: Did you learn who "Our Hero" referred to?
THE WITNESS: No.
THE CHAIRPERSON: You don't know to this day who "Our Hero" refers to?
THE WITNESS: I don't know what the author was referring to.
MR. KURZ:
Q. Mr. Klatt, if you, in fact, honestly looked at the site, didn't you see what I am handing you now, which has 20-odd pages?
A. Like I mentioned, I do recall seeing the graphics on page 1 of 6 and page 1 of 10.
Q. You said you saw them on TV. That was your answer, sir. You didn't say, "I looked at it in August and that is what I saw when I looked at it in August." Your answer was that there was a news broadcast that dealt with Sol Littman and his complaint about ftcnet and that you might have seen the link and you didn't even know what it was and you didn't bother to look.
Now I am asking you something different, sir. I want you to turn your mind to my questions if you would, please.
I am asking whether, in fact, when you looked in August, you in fact saw that the document that I am showing you represents the "Our Hero" web site, what you found when you looked at it in August.
A. In August it was not hosted on ftcnet.
Q. That is not what I am asking you. Please listen to my question. Just answer my question, not a different question.
A. What did I see in August?
Q. Did you see this document or something substantially ‑‑ obviously, you did not see a piece of paper, but you saw the content that is reflected in this document, did you not, sir?
A. I remember seeing a home page that came up when I accessed the web address "Our Hero.com".
Q. And you saw this picture because the home page says "Library", and it was this picture that I say is Adolf Hitler without the mustache, was it not?
A. I can't honestly remember what was on the home page.
Q. To be fair and honest, you have no idea what the "Our Hero" home page is, do you?
A. I have seen comments regarding it.
Q. When did you see comments regarding it?
A. Earlier this year.
Q. When earlier this year?
A. It would have been sometime in January.
Q. What did the comments say? First, where did you see the comments and then I will ask you what they said. Where did you see it?
A. It was in the context of Sol Littman's press conference in Vancouver.
Q. What do you understand to have heard about "Our Hero" from Sol Littman's press conference?
A. My recollection is that he may have had complaints regarding some of the content.
Q. So all you knew is that it was something that Sol Littman didn't like. Right?
A. I think that was the gist of his complaint.
Q. In what you heard, he did not describe the contents of the "Our Hero" site, did he?
A. I don't recall the specific complaints.
Q. You don't recall hearing anything about the content of the "Our Hero" site. Nothing that you heard from Mr. Littman told you what was on the site. Correct?
A. He had a press conference and he listed a variety of sites that he didn't like the contents of. I think eventually we got a letter from him sometime later listing some web sites that he didn't like the content of.
Q. Was one of them "Our Hero?"
A. I believe it probably was.
Q. Did you check the web site after you got the letter from Littman?
A. There may have been one specific issue now that I recall ‑‑
Q. Just listen to the question and please answer that question, not another question.
After you got the letter from Littman, did you check the web site ‑‑ and I am referring to the "Our Hero" web site?
A. I think there was one specific issue that I did check out regarding a cartoon that he complained about.
Q. On the "Our Hero" web site?
A. Yes.
Q. In order to get to that cartoon, you had to link to the "Our Hero" web site. Right?
A. Not necessarily.
Q. How would you see the cartoon if you didn't link to the web site?
A. I didn't look for the cartoon.
Q. So you didn't look for it?
A. I looked to see what he was complaining about.
Q. I don't understand, I am sorry; I'm lost. I thought your first answer was that you did not see it until August. Then you said that Sol Littman complained about it in a letter and you checked it. Now you are saying that you didn't. What is it?
A. He was complaining that there was a specific cartoon that he was alleging was posted on that particular user's web page.
Q. Right, and as a result of that letter, what did you do?
A. I think I looked at the html document that that cartoon was alleged to be referenced in, and I found that it was actually referenced to a web site in Manhattan.
Q. In other words, you looked at the address only?
A. I looked at what you call the source.
Q. So in answer to my earlier question, you did not look at the "Our Hero" site when you got the letter from Littman. I am just trying to get a straight answer, sir.
A. I look at many different web pages.
Q. That is not my question; I didn't ask you whether you looked at many different web pages. Please listen to my question and answer only my question.
When you got the letter from Littman, did you or did you not look at the "Our Hero" site? It's a simple question.
A. Not really. Do you mean looking at the complete site, a particular part of the site, a document? What do you mean by "Our Hero site?"
Q. Anything in "Our Hero" site. Does that make it clearer to you?
A. Yes, I looked at that particular document source code.
Q. But you did not look at the actual contents of the site, did you? Or did you?
A. No, I did not review the contents of the "Our Hero" web site.
Q. But you did in August?
A. No. I brought up the home page at the "Our Hero.com" address, but it does not seem to be working today.
Q. And you are saying that the front page of this is not the web page you called up when you ‑‑
A. I don't recall what was on that web page.
Q. In other words, you don't know what is on the "Our Hero" web page. Right?
A. No, I don't.
Q. Nothing about the name "Our Hero" tells you what is on the "Our Hero" web page; is that correct?
A. Not specifically, no.
Q. For example, I suggested to you that "Our Hero" was Adolf Hitler, and you are not willing to even concede that that is the case. Correct?
A. I don't know what the author had in mind.
Q. So you really don't know what is in the content. Would that be a fair statement? You have no idea what is on it. Am I being fair to you?
MR. CHRISTIE: I think he has answered that several times in several different ways.
THE WITNESS: By looking through the material that is provided, I have some idea.
MR. KURZ:
Q. I am not asking you about right now. I am asking about just before I handed it to you.
A. I had seen reference to it in Sol Littman's press conference. I had seen reference to it in the TV news coverage.
Q. But you told me that neither of those told you about the content. You just knew that they were objectionable to Sol Littman. Isn't that right?
A. From the TV coverage and the press conference, it gave the impression that it was material that some people or groups were objecting to.
Q. You told me about the TV coverage, that you could not even say from the TV coverage that this is the graphic that was on the "Our Hero" web page, that they did not identify it as such. Now you are saying that the TV coverage talked about the "Our Hero" web page?
MR. CHRISTIE: No, that is not what he said. If you want the witness to go outside, I will ask him to do so.
I will put it this way ‑‑
MR. KURZ: Don't put it any way, Mr. Christie. Let the witness leave.
MR. CHRISTIE: I will put it the way I want to put it.
‑‑- Witness Withdraws
MR. CHRISTIE: The last remark of Mr. Kurz was a misquote. That is all I am saying. He misrepresents what the witness says and puts it to him as if he said it. I object to that.
That is my objection.
MR. KURZ: I think I have accurately phrased what he said. Obviously, Mr. Chair, I am in your hands. I am repeating what I understood the answers to be to a series of questions.
‑‑- Witness returns to the stand
THE CHAIRPERSON: Put the question again.
MR. KURZ:
Q. Mr. Klatt, I earlier asked you about the TV program. You said that you saw this graphic ‑‑ and I am pointing to the picture of Hitler and the two swirls ‑‑ but that in no way did they say that this graphic was related to the "Our Hero" site. Correct?
A. No, that is not what I said.
Q. What is it that you said with regard to this graphic and that TV program, that news coverage program?
A. I don't recall any specific mention in the news or the TV coverage of "Our Hero."
Q. That is all I was asking you.
THE CHAIRPERSON: Mr. Klatt, what was your interest in recording, as I understand it, a portion of this television program?
THE WITNESS: Because it did refer to Fairview Technology, my Internet Service Provider business.
MR. KURZ: I am going to put this aside for the moment, Mr. Chair; we may get back to it. I am not asking to put it into evidence at this point.
Q. I am showing you a document that I am going to ask you to identify. Do you recognize that document, sir?
A. It appears to be a printout from our home page.
Q. In the upper left-hand corner it says "Fairview Technology Centre Ltd." In the right-hand corner it has the ftcnet.com address. That is your web page address. Correct?
A. Correct.
Q. At the bottom it says "Last modified August 30, 1998 by bwklatt@ftcnet.com." That is your e-mail address. Correct?
A. Correct.
Q. Somewhere near the middle of the page there are five hyperlinks. Would that be the proper way of describing the underlined words?
A. Sure.
Q. You created this home page, did you not?
A. Right.
Q. If I were to hyperlink to ‑‑ that is, put the cursor on the words "'Friends of Freedom' newsletter" and press, I would hyperlink to another document or I would be transported to another document. Correct?
A. Right.
Q. I am going to suggest to you that the document that I would receive ‑‑ sorry, could we make this document an exhibit.
THE REGISTRAR: The document will be marked as BN-4.
EXHIBIT NO. BN-4: Document entitled "Welcome to the Oliver & Osoyoos area!" from Fairview Technology Centre Ltd. home page
MR. KURZ:
Q. If I were to hyperlink to "Friends of Freedom" newsletter, I would get this document, The FTCnet.com story. This is another document you put together, is it not?
A. Right.
Q. And it is hosted on www.geocities.com/Capitol Hill/Senate. That is just an address that you have; is that right?
A. Correct.
Q. It says: "What happened to FTCnet.com? Is free speech dead in Canada." If you go down, you will see there is whole host of different links: BC Tel vs: FTCnet censors; FTCnet news coverage items; John Dwyer fights 'net censorship!; Louis Beam exposes 'net censors" ‑‑ who is Louis Beam, by the way, sir?
A. He is an individual who is active on the Internet and also is interested in free speech issues.
Q. Do you know Louis Beam?
A. I have met him.
Q. Do you know anything about him? Do you know that he is a leader of the Aryan Nation, sir?
A. I don't know that that is the case currently.
Q. Not currently. Was he ever a leader of the Aryan Nation, sir?
A. I don't know that he was.
Q. Do you know what the Aryan Nations are?
A. I have heard of it.
Q. What is the Aryan Nation?
A. I believe it is a group of people who have a location somewhere in Idaho.
Q. Do you know anything else about them?
A. I think they would be classified in the group of Christian Identity.
Q. Are they considered a hate group, sir?
A. I don't know.
Q. You don't know because you don't know anything about the Aryan Nation or you don't know what a hate group is?
A. Both.
Q. You have been accused of being involved with the Aryan Nations, have you not, sir?
A. I have?
Q. Yes, by a former employee. Does that assist you?
A. I do recall some ‑‑ I think there was a mention in one of the press coverage items that made some reference to that.
Q. In fact, since we are on the subject, isn't there a former employee named Tyrone Mills who said that you were at the Aryan Nations compound in Hayden Lake, Idaho.
A. He is lying. That is incorrect.
Q. He said you gave him literature from the White Aryan Resistance. Do you know what the White Aryan Resistance is?
A. I think I have heard the term.
Q. Do you know that that is a white supremacist group?
A. I don't know for sure.
Q. Do you know whether you agree or disagree with the views of White Aryan Resistance?
A. One thing that does need to be corrected for the record is that Tyrone Mills was never an employee. He did do some occasional contract work for us, but he was never an employee.
Q. He did work for you, but he wasn't technically an employee. Is that what you are saying?
A. He did some contract work.
Q. What I am asking you is whether you knew what the views of the White Aryan Resistance were.
A. No, I don't.
Q. Do you know whether they are considered a white supremacist group?
A. Is there a group called White Aryan Resistance?
Q. I am suggesting that to you. You have never heard of that group until I mentioned it to you?
A. I recall some mention in that news story that Tyrone Mills refers to.
Q. And he said that you gave him material from the White Aryan Resistance. Correct?
A. That is his assertion.
Q. So at that time you had heard the term White Aryan Resistance.
A. After I read the news coverage.
Q. And your response was that you have no personal contacts with any white supremacist group and that you do not espouse their views. Correct? Was that not your response to the writer from the Canadian Press who interviewed you about this?
A. I don't recall what I responded to.
Q. Should I show you the article? Would that assist you?
A. It could.
Q. The second paragraph says:
"Tyrone Mills, who worked for Fairview Technology Centre in 1994, says Bernard Klatt gave him literature from the White Aryan Resistance and invited him to an Aryan Nations compound at Hayden Lake, Idaho."
Are you aware of that allegation?
A. Yes, I am aware of that allegation.
Q. At the time that allegation was made you knew what those two groups were.
A. No, I don't think that is what I am saying.
Q. At the bottom of the paragraph your response appears to be:
"Klatt said he has no personal contacts with any white supremacist groups and does not espouse their views."
Is that what you told the reporter?
A. That is evidently what the reporter wrote up in his article. I don't think anything there is a direct quote from me.
Q. Is he lying when he says that you said that?
THE CHAIRPERSON: He is directing you to the very last sentence at the bottom of the first column. He is simply asking you whether that is consistent with what you said.
THE WITNESS: I believe that is consistent with what I told the reporter.
MR. KURZ:
Q. So you knew that the White Aryan Resistance and the Aryan Nations are white supremacist groups. In other words, why would you say that you had no contacts with white supremacist groups?
A. I think, in the context of what the reporter was asking me, that was a response that I gave him.
Q. You gave him that response because he asked you about those two groups. He came to you and said, "Tyrone Mills says that you are involved with these two groups," and your response was, "I don't have any contacts with white supremacists, no personal contacts with them ‑‑"
MR. CHRISTIE: I object to this line of questioning.
MR. KURZ: Let me finish the question before you object.
MR. CHRISTIE: It is totally misleading, and I will address it if the witness wishes to leave the room.
THE CHAIRPERSON: Let me hear what your objection is.
MR. CHRISTIE: This is a misstatement of the text in the article. He has just said that the reference to the White Aryan Resistance and Aryan Nations was immediately preceding Klatt saying that he has no personal contacts with any white supremacist groups and does not espouse their views. That is entirely misleading because intervening there is a number of other statements. We don't know what the question was that preceded the unquoted remarks. It may very well have been, "Do you associate with white supremacist groups?"
Mr. Kurz seems to think that it is his entitlement to mislead the witness. That is why I suggest he should not be doing that.
MR. KURZ: Now that Mr. Christie has given Mr. Klatt a good answer ‑‑
MR. CHRISTIE: I asked if you wanted him to leave the room, and I suggested that he should. I was told to proceed and I did.
MR. KURZ: I was putting to Mr. Klatt just now what I was suggesting was a question.
Q. I will put it to you again.
The reporter came to you and asked you about the allegations made by Tyrone Mills, and your response was that you have no personal contact with white supremacist groups and you don't espouse their views.
THE CHAIRPERSON: He has already answered that.
MR. KURZ: In response to that particular question.
Q. I am saying to you that you would not have given that response unless you knew that these groups were white supremacist groups.
A. That is evidently what the reporter chose to summarize as my response. I don't know what his question was or what my specific response was.
Q. Sir, I thought you just agreed that that question was asked and that answer was given.
A. I don't know the question that the reporter made that sentence up from.
Q. That answer came in the context of being asked about those two groups, was it not?
A. I don't know what the reporter's question was.
Q. Did you ever write a letter ‑‑ by the way, this was an article in the Times Colonist. Do you recall that article?
A. I recall seeing the article that is shown here.
Q. I am suggesting to you that that was an article in the ‑‑ is it the Victoria Times Colonist?
A. This is what came from the Penticton paper.
Q. Which paper is that? If you look at the word on the right-hand side, it says "Time," and my annotation is TC, which I understand is Times Colonist.
THE CHAIRPERSON: Are you playing with the computer?
THE WITNESS: I referenced this particular article in my web page.
THE CHAIRPERSON: If we want you to call something up, we will ask you to do so.
MR. KURZ:
Q. This article was in the Times Colonist, was it not?
A. I don't know that it was. I don't think that is where I saw it.
Q. If you look at the upper right-hand corner, it says "Time"; I assume that "Colonist" is cut off.
You agree that this article was published in a newspaper in the B.C. area, but you think it might be the Penticton paper rather than the Victoria paper. Is that correct?
A. I think I have a reference to this article in this particular web page I am calling up.
Q. In other words, you have reprinted this article on your web page. Is that what you are saying?
A. With some of my comments.
Q. With your comments in response. That means that you have seen this article. Correct?
A. I am pretty sure this is the article that I made some response to.
MR. CHRISTIE: If he has a note made in relation to this article, why wouldn't he be entitled to look at it to refresh his memory ‑‑
MR. KURZ: All I am dealing with right now‑‑
MR. CHRISTIE: ‑‑ to determine if he did see this article?
THE CHAIRPERSON: Is there any dispute here about the article?
MR. CHRISTIE: He said he saw this in another place, and we don't know if it is exactly the same or not.
THE CHAIRPERSON: I am trying to move on here. Is there any doubt that this is an article that was published in the Canadian Press? As I understood your answer to a specific question I put to you, the statement, "Klatt said he has no personal contacts with any white supremacist groups" ‑‑ you acknowledged that that is consistent with what you told the reporter.
THE WITNESS: I believe it probably is.
MR. KURZ: I am suggesting that "probably" is good enough, and it is enough to make it the next exhibit.
MR. CHRISTIE: I don't agree. That it is probably something he said to a reporter does not make this evidence.
THE CHAIRPERSON: We have his answer to the question that I put to him earlier. On the basis of that, I am going to mark this.
THE REGISTRAR: The article will be marked as BN-5.
EXHIBIT NO. BN-5: Copy of newspaper article from The Canadian Press entitled "Access provider 'held racist views'"
MR. KURZ:
Q. Just before I move on, two-thirds of the way down there is a paragraph that says:
"I don't believe in everything ‑‑"
Do you see that paragraph, sir? It is in the right-hand column.
A. I see it.
Q. There is a quote that appears to be attributed to you. I am going to read it to you, and then I am going to ask you, first of all, whether you gave that quote and then whether it is true and I will ask you to explain it.
"I don't believe in everything that is on my service, although I agree with some of it. I guess, because we haven't acquiesced to some demands that we act as a censor, we are being penalized."
Did you give that quote?
A. It appears that I did, according to this reporter.
Q. That is not what I am asking you. Please, we will go a lot faster if you will simply answer my questions.
I didn't ask you according to the reporter. The reporter has written down what the reporter thinks you said. I asked you what you said. Please give me a straight answer.
A. That was back in 1996.
MR. CHRISTIE: Mr. Kurz, if he says he doesn't remember, is that okay for an answer or do we have to keep beating this witness until he agrees with Mr. Kurz?
THE CHAIRPERSON: Can you remember whether‑‑
MR. CHRISTIE: He answered that question.
THE CHAIRPERSON: Can you remember whether what is quoted here is consistent with what you told the reporter ‑‑ perhaps not verbatim, but does the sense of the quote correspond with what you said to the reporter?
THE WITNESS: I believe it was.
THE CHAIRPERSON: Next question.
MR. KURZ:
Q. You said:
"I don't believe everything that is on my service, although I agree with some of it."
What is it that you agree with that is on your service, as of July 27, 1996, the day of the interview?
A. As I mentioned earlier, we are supportive of The Western Canada Concept.
Q. I am sorry...?
A. We are a supporter of The Western Canada Concept.
Q. What else?
A. We found the coverage in the Friends of Freedom newsletter to be of interest and were in general agreement.
Q. Anything else?
A. I am not sure at what point, but we also had a client that produced a publication called "The Speaker." Some of their material we found of interest, and I agreed with some of it.
Q. Anything else?
A. I don't know if you have any specific quotations or sentences in mind. I could respond to those.
Q. I am just asking what you had in mind, not what I have in mind.
A. Pretty much what I just outlined.
Q. What did you disagree with?
A. Is there any particular content you have in mind?
Q. I am asking you. I am not putting stuff to you now; I am asking what you had in mind when you gave that statement.
A. I don't know that I had anything specific in mind that I disagreed with.
Q. You said, "I don't believe in everything that is on my service." You say you had nothing in mind when you said that?
A. Some of the material on clients' web sites does not represent our views.
Q. That is not what you said. You didn't say, "It doesn't represent my views." You said, "I don't believe in everything that is on my service."
A. That is a true statement that I still agree with.
Q. Here is what I don't understand, sir. You have told us over and over again that you don't monitor the contents. How are you in a position to know whether you believe or disbelieve in the content if you don't look at it?
A. Because I have seen some of it.
Q. You haven't told me anything that you have seen on your service that you disagree with.
THE CHAIRPERSON: Do you want to mark this document?
MR. KURZ: Yes.
THE REGISTRAR: The document entitled "What happened to FTCnet.com?" will be marked as BN-6.
EXHIBIT NO. BN-6: Document entitled "What happened to FTCnet.com?"
MR. KURZ:
Q. Do you have an answer, sir?
A. If you have something specific in mind, I can respond to it.
Q. I had the question that I just asked you.
MR. CHRISTIE: You didn't ask a question; you made a statement: "You haven't indicated anything you disagree with," so the witness just sat there and didn't disagree with that either.
Is that a question? Is that a statement? There is no question there.
MR. KURZ:
Q. Mr. Klatt, I am trying to ask you to explain how it is that you can say that you don't believe in everything that is your service when, in fact, your earlier statement was that you don't look at the stuff that is on your service.
A. Not in advance of it being posted.
Q. But my understanding of your evidence is that you don't read most of it even after it is posted, that you are not a censor. How can you know whether you believe or not believe in the stuff unless you read it?
A. I have looked at some of it.
Q. You told us about what you had seen. You haven't yet told us about anything that you have seen posted on your site that you don't believe in.
A. I am sure I can find something.
THE CHAIRPERSON: Nothing comes to mind?
THE WITNESS: Some of the characterizations that I have seen in this recent exhibit probably don't reflect my views.
THE CHAIRPERSON: Which one are you referring to?
THE WITNESS: Some of the wording that I see in the "Our Hero" document.
THE CHAIRPERSON: It is not an exhibit yet.
MR. KURZ:
Q. Are you going to tell us what you disagree with, sir? I don't mind him referring to this document if he wants to tell us what he disagrees with there.
A. For example, at page 3 of 6, the first long line about a third of the way down where he references the phrase "j*wish organized genocide against all gentiles", I would not agree with that statement.
Q. Anything else in looking through this document that comes to mind that you don't agree with?
A. I am just looking at specific words here. There may well be content that, once referred to, I would not agree with.
Q. Just on the content that you see right here in front of you.
A. At page 2 of 10, about two-thirds of the way down, "Proof of the hatred j*ws have for all humanity - and their inhuman plans" I don't think I would necessarily agree with that phrase.
Q. Why don't you agree with it?
A. I am not aware of any proof of hatred Jews have for all humanity.
Q. Do you believe Jews have hatred for all humanity?
A. Not that I am aware of.
Q. Do you think Jews are hateful at all?
A. Some Jews might be.
Q. Is there anything else that you find objectionable?
A. Are we into a different category now?
Q. I apologize, the term is "that you don't believe in."
A. I thought that was what we were looking for.
Q. I apologize for misleading you. Is there anything else here that you don't believe in?
A. I am sure we could find some more.
Q. Take your time.
A. At page 4 of 10, I don't believe that I would agree with the characterization of Ken McVay.
THE CHAIRPERSON: Where is that?
THE WITNESS: On page 4 of 10.
MR. KURZ:
Q. In the fourth paragraph down, "an Archive of Files ‑‑". Is that the one?
A. Right.
Q. What about the characterization of Ken McVay do you not agree with?
A. I have talked to Ken McVay, and he doesn't seem to be an unreasonable person in some aspects.
Q. Anything else?
A. In terms of examples of things that I don't believe in, in this document I have pointed out several.
Q. Anything else?
A. Just because I don't point them out, it is not to be inferred that I specifically believe it, either.
Q. I am offering you the opportunity to point out, without going into detail, the things that you don't believe in.
MR. CHRISTIE: Sir, there is no relevance to pointing out in 16 pages of paper what you don't believe in. How far can this cross-examination go into the realm of fantasy and irrelevancy before it stops? I object to the process. The witness has given a few examples of what he doesn't believe in. Now my friend wants him to go through the whole 16 pages and identify what he doesn't believe in.
What is the purpose of this?
THE CHAIRPERSON: The witness has said that there may be other things. I wonder whether it is appropriate to leave it there.
MR. KURZ: Could we make this the next exhibit since he has made reference to it.
THE REGISTRAR: The document will be marked as BN-7.
EXHIBIT NO. BN-7: Document from "The Library: A Learning Center for all Gentiles Uniting Against the Jewish Conspiracy"
MR. KURZ:
Q. Going back to BN-6, which is the document that says "What happened to FTCnet.com?" ‑‑ do you have that in front of you?
A. Yes.
Q. You will see that there are five links, and then underneath it says, "Or were you looking for" and then there are three more. These are links that you provide from your own page. Correct?
A. Right.
Q. The three links are to what?
A. Freedom Site, Aryan Dating Page, and Our Hero Page.
Q. So you provide a direct link to the "Our Hero page."
A. Those are three sites where we knew they had moved to.
Q. Where you knew they moved to? That is the only reason you put them there?
A. Correct.
Q. Didn't you have to look at the Our Hero page before you provided a link to it?
A. Like I mentioned, back in August when I was working on this page, I did check and there did seem to be an active web page at that address at that time.
Q. That is not what I am asking. In fact, to provide the link, I am suggesting that you had to look at the content.
A. No, you don't have to look at the content.
Q. You are just providing a link whether or not you looked at the content?
A. Right.
Q. It seems to me that the only three sites that you offered links to were sites that could be described, at the very least, as controversial sites.
A. Those were web sites that were no longer hosted on our system.
Q. They were no longer hosted because of their controversial nature. Correct?
A. Because of our business arrangement when we sold our Internet Service Provider business, we no longer host web sites other than ‑‑ the company that bought the Internet Service Provider business only wanted the non-controversial web customers and the dial-up customers.
Q. I understand that; you have given evidence about that. What I am saying, though, is that here on your own personal web page ‑‑ this is your personal web page, is it not?
A. Correct.
Q. On your own personal web page you are providing a link to the Our Hero page and you are saying that you hadn't even bothered to read it as of then?
A. No. It appears today that it is no longer a valid web ‑‑
Q. That is not what I asked you about.
MR. CHRISTIE: The answer is "no." What else do you want him to say? Mr. Kurz doesn't like the answer?
THE WITNESS: The main reason for those three links was that, if somebody went to the old address at ftcnet.com, they are automatically redirected to this page.
MR. KURZ:
Q. Why do you take it upon yourself to direct readers to the Our Hero page? Somebody could find it on their own. These people are no longer your customers. They never provided you with any money; yet, you have taken it upon yourself to tell readers or people who are browsing through your personal web site that, if they want it, here is their address.
A. I am a member of Electronic Frontier Canada and a supporter of that organization. I am a free speech advocate. I am opposed to censorship attempts, and this is one way that I see as an opportunity to counteract attempts at censorship.
MR. KURZ: This may be a good time for a lunch break.
THE CHAIRPERSON: Counsel who want to ask questions after lunch will order themselves.
‑‑- Luncheon Recess at 1:00 p.m.
‑‑- Upon resuming at 2:34 p.m.
MR. KURZ:
Q. Mr. Klatt, are you a reader of the Zundelsite?
A. I have read some of the ZGrams on there.
Q. You have been reading ZGrams for a long time, haven't you? Would that be a fair statement?
A. I don't remember when I first started reading them. I have read a number of them, yes.
Q. When you say for some time, you have been reading them certainly since before May 1997. Would that be a fair statement?
A. It is entirely possible.
Q. Not only were you a reader of the Zundelsite; you corresponded to the Zundelsite, have you not?
A. I am not sure what you mean by "corresponded to the Zundelsite."
Q. Letters or e-mails to Ingrid Rimland or Ernst Zundel.
A. I have written e-mails to Ingrid Rimland, yes.
Q. You were writing e-mails to Ingrid Rimland as early as May 1997.
A. It is possible.
Q. For example, did you not write an
e-mail or a letter to Ingrid Rimland to this effect ‑‑ and I am suggesting that you would done this in or about May 1997:
"Margo Langford of iSTAR has provided an affidavit to the government regarding this case ‑‑"
That is, regarding the Zundel case.
"‑‑ in support of the CHRC's position that it has jurisdiction to regulate the Internet. Langford seems to be in the forefront of ongoing efforts to regulate the Internet in Canada...There are new amendments tabled during the last session of Parliament to increase penalties under Section 13 from only a 'cease and desist' order to now include fines in the thousands of dollars."...Electronic Frontier of Canada has apparently refused any help in opposing this power grab by the CHRC."
Did you write such correspondence to Ingrid Rimland?
A. It sounds like some of the wording I would have used.
Q. Not only did she receive it; she posted it in her ZGram of May 26, 1997, did she not?
A. I don't know.
Q. Let me show you the May 1997 ZGram. I am looking at the bottom of page 2, beginning with "Where are the Internet Providers?" The quote that applies to you, Mr. Klatt, starts at the second-last line with the words "in Vernon,B.C. write:" and then there is your quote. Do you have that before you, Mr. Klatt?
A. Right.
Q. Just read it through and let me know whether that accurately represents correspondence that you gave to Ms Rimland and that she subsequently posted to her Zundelgram.
A. I think Margo Langford's affidavit was in opposition to a motion for judicial review.
Q. The judicial review initiated by Mr. Zundel in 1996. That is what you wrote about. Right?
A. I think that is what the reference would be to.
Q. You wrote providing your comments with regard to that judicial review proceeding. Is that not right? I will withdraw the question. What you wrote is obvious.
Is this what you wrote?
A. It looks like an excerpt from something I would have written.
Q. Do you agree as well that this excerpt was posted to the May 26, 1997 ZGram? Look at the front page, sir.
A. I am just looking at the URL. It seems to infer the similar type of date.
Q. The URL is the URL of the Zundelsite, is it not?
A. One of them, yes.
Q. I am sorry, what do you mean by "one of?" One of what?
A. That material evidently can be found at other mirror sites as well.
Q. But this is the main Zundelsite. This is the URL of the main Zundelsite, is it not?
A. I think it is the one that Ingrid Rimland maintains.
Q. You will agree with me that this is the May 26, 1997 Zundelgram. Correct?
A. That is what is written there.
MR. KURZ: Could I make this the next exhibit, Mr. Chair.
MR. CHRISTIE: I object. The witness said, "That is what is written there." If I produce a document and I ask the witness, "Is that what is written there?" and he says, "Yes," will you admit that?
THE CHAIRPERSON: He has identified it as his own writing on this document.
MR. CHRISTIE: He says, "It looks like an excerpt of what I wrote."
THE CHAIRPERSON: No, he said it was an excerpt from a letter that he wrote. That was the proposition that was put to him, and he agrees with it, as I understand the evidence.
MR. CHRISTIE: That is true. But to put this in as a Zundelgram because the witness says that is what it says on it ‑‑ that is what it is tendered for, to prove that it is published on the Zundelsite. He calls that a ZGram.
THE CHAIRPERSON: Did he not agree that this is the URL of the Zundelsite? Is there any dispute about that?
MR. CHRISTIE: To prove an authentic document, surely you have to do more than introduce something on the document itself.
THE CHAIRPERSON: Whether there is any other evidentiary value to what has already been established, I don't know. The document, it seems to me, is relevant to the extent that this witness has identified it in terms of the question that was put to him, that this is part of a letter that he wrote to the Zundelsite.
Maybe that is the limited purpose for which it is tendered.
MR. KURZ: It is tendered for the purpose of showing Mr. Klatt's connection to the Zundelsite and that he corresponds to Ingrid Rimland and that this is an excerpt of something that he corresponded to Ingrid Rimland. That is the purpose.
THE CHAIRPERSON: It seems to me that it is relevant to that extent.
MR. KURZ: I am not saying that it is for anything else.
THE REGISTRAR: The document will be marked as BN-8.
EXHIBIT NO. BN-8: ZGram dated May 26, 1997
MR. KURZ:
Q. Mr. Klatt, I don't want to waste the Tribunal's time with every correspondence, but this is not the only time you have ever ‑‑
THE CHAIRPERSON: Mr. Fromm, please.
MR. FROMM: Mr. Chairman, in this document which Mr. Kurz states represents correspondence between Mr. Klatt and Ms Rimland ‑‑ and whether or not that is the case I don't know. This document actually originated from our own organization, if Mr. Kurz would look at the top of the document.
MR. KURZ: Mr. Klatt has already given his evidence about this.
MR. CHRISTIE: Oh, I didn't see that.
THE CHAIRPERSON: What are we looking at?
MR. CHRISTIE: The first line under "Good Morning from the Zundelsite:" says:
"In lieu of a regular ZGram, we are sending this press release from Paul Fromm's Canadian Association for Free Expression."
I thought it was communication with the Zundelsite; that is what my friend said it was. It may very well be a communication with Paul Fromm's Canadian Association for Freedom of Expression quoted as if it was from the Zundelsite by someone who copied Paul Fromm's press release.
I suppose it is quite obvious that the witness is equally capable of being misled.
MR. KURZ: Mr. Christie and Mr. Fromm have now given the witness an answer that they may wish in re-examination, but Mr. Klatt has answered a direct question.
THE CHAIRPERSON: I am going to allow it for the limited purpose that we described a moment ago.
MR. CHRISTIE: For the record, if Mr. Kurz is aware that this was misleading the witness, it would seem to me a rather deceitful thing to do. If he knew that this was a press release from Paul Fromm's Canadian Association for Freedom of Expression, I would suggest that he put it to him as though it were not.
THE CHAIRPERSON: Perhaps you can clear up why the document has a heading "Good morning from the Zundelsite."
MR. KURZ: Perhaps Mr. Klatt should step outside for a moment if we are going to have a discussion about this document.
‑‑- Witness Withdraws
THE CHAIRPERSON: It is obvious that the document originated with the Zundelsite. The first line says that in lieu of a regular ZGram, et cetera, they send a press release from Mr. Fromm's Canadian Association for Free Expression.
MR. CHRISTIE: As I understood Mr. Kurz' position, it was that this was introduced to prove correspondence between Mr. Klatt and the Zundelsite. If he knew that it was actually a press release from Paul Fromm's Canadian Association for Freedom of Expression and in that there is a quote of Bernard Klatt, it would seem to imply that it is correspondence between Bernard Klatt and Paul Fromm or his organization.
THE CHAIRPERSON: Rather than with the Zundelsite.
MR. CHRISTIE: Yes. The Zundelsite could quote Paul Fromm's publication, his press release, and in it there is a reference to Mr. Klatt. It struck me as somewhat misleading to suggest, if Mr. Kurz was aware of this, that it was therefore evidence of correspondence with the Zundelsite. It would not be. I thought it was in the way it was presented. Until Mr. Fromm mentioned it, I didn't realize that.
MR. KURZ: Frankly, I don't see it that way and I didn't read it that way. I may be wrong. Certainly evidence can be called to the contrary. I understand that Ms Rimland is going to be called.
I had understood that the first part of the ZGram was this press release and that the rest was whatever the content is. Mr. Fromm can give evidence, if he wants, that this was the entire content.
The problem with all of Mr. Christie's submissions is that Mr. Klatt has admitted that he corresponds to the Zundelsite and he has admitted that this is a correspondence he sent. Maybe Mr. Fromm got the same correspondence; I don't know. That is a matter for either Mr. Christie to clear up by calling Ms Rimland, which he says he will do, or he can call Mr. Fromm or Mr. Fromm can call himself.
Frankly, I read this thing as being something that was in Ms Rimland's voice. If I am incorrect, so be it. But, whether it is or not, Mr. Klatt has said that he has written that correspondence to Ms Rimland.
He may object all he likes. We have the evidence from the best source.
MR. CHRISTIE: That is not what Mr. Klatt said. It was Mr. Klatt's evidence ‑‑ at one point he said, "That is what is written on it." Had he been given the opportunity to look it over, he would see that that was not the case.
My friend misstates his evidence again when he says that he said he corresponded with the Zundelsite. This was put to him as a Zundelsite document somehow related to him. In my submission, it was necessary for my learned friend, if he wishes to maintain that this document has relevance, to assure you or at least to say somehow honestly that he did not know about that, that it is a misunderstanding on his part. If it wasn't, it wasn't honest either; it was dishonest.
THE CHAIRPERSON: Let's not elevate this too high. We don't know at the moment whether all portions of this document originated from Mr. Fromm's organization. It purports to say that at the beginning, but whether any part of it originated directly from the Zundelsite we don't know.
MR. KURZ: For example, at the end it says
‑‑ the reason that I handed him the ZGram was to say that it was reproduced in the Zundelgram. He accepted ‑‑
THE CHAIRPERSON: He may be confused about it; I don't know.
MR. KURZ: He may well be.
THE CHAIRPERSON: Let's move on.
MR. CHRISTIE: So it is never required for my learned friend to say whether he knew or whether he did not know that he was actually quoting from another document. That is never required.
THE CHAIRPERSON: I am not going to assume any improper motives by any counsel.
MR. CHRISTIE: That is why I asked.
MR. KURZ: I will move on, Mr. Chairman.
‑‑- Witness returns to the stand
MR. KURZ:
Q. Mr. Klatt, have you formed any opinion as to whether the contents of the Zundelsite violates Canadian law?
A. I don't think my opinion particularly holds much weight in any legal ‑‑
Q. You are probably right. I am just wondering whether you have formed such an opinion.
A. I am not aware of any material that would be in violation of Canadian regulations or anything of that nature.
Q. Would it be fair to say that, having reviewed the Zundelsite, it is your opinion that the material on the Zundelsite does not violate Canadian hate laws?
A. I didn't claim that I reviewed the Zundelsite.
Q. Would it be fair to say that you have expressed an opinion as to whether the content of the Zundelsite violates Canadian hate laws?
A. No. I think I expressed the statement that the material I have seen does not appear to violate any Canadian laws that I am aware of.
Q. Would it be fair to say that it is your opinion that the statement that the information that Zundel pumps out violates Canadian laws is a false statement? Let me be even more fair to you.
You have expressed the view that the following statement is false: Zundel's web site is based in California because the information he pumps out violates Canadian laws. Have you ever expressed the opinion that that is a false statement?
A. The statement is not attributed to me, is it?
Q. No. That the statement is a false statement, I will say, was attributed to you. Let me read it to you again so that you are clear.
This is the statement that I am going to ask a response to: Zundel's web site is based in California because the information he pumps out violates Canadian laws. I am asking you whether you have publicly expressed the view that the statement I just read to you is a false statement.
A. I might have.
Q. Would you have done it on your web site? Does that assist you?
A. By my web site, do you mean ftcnet or Geocities?
Q. Geocities.
A. It is entirely possible.
Q. Would it help you if I were to show you this article and put it in context for you. You have reproduced many articles that were written in different newspapers about ftcnet and the free speech controversy, if I can put it that way. Would that be a fair statement?
A. The ones that refer to either myself or our Internet business, yes.
Q. In reproducing these articles, you posted them on one of your web sites. Would that be a fair statement?
A. The Geocities one, yes.
Q. And you posted them with your comments in brackets; is that not true?
A. That is generally the case, yes.
Q. For example, let's look at the URL in the top left-hand corner here: www.geocities.co...Senate/8237/jdwyer.html. Is that your site?
A. Yes, it is a web page that I update.
Q. This article from the Sudbury Star of July 8, 1998 is an article that you posted to your web site?
A. Correct.
Q. For example, if you go to paragraph 2, it says:
"The website features material from holocaust denier Ernst Zundel, a recipe for making the deadly biological agent Anthrax [not true],‑‑"
Those are your words, "not true?"
A. Correct.
Q. So you were able to say from reviewing the Zundelsite that there is no recipe for making the deadly biological agent Anthrax on the Zundelsite. Correct?
A. No, that is not what it says at all.
Q. Your words "not true" ‑‑
A. Do not refer to the Zundelsite.
Q. I am sorry, you are right. It's the North Information Exchange.
Just going down farther ‑‑ before I do that, the point that I want to make is that the square brackets reflect your opinion. Right?
A. My understanding.
Q. Just going down about two-thirds of the page, there is a sentence that says:
"Zundel's website is based in California ‑‑"
That is the point I wanted to bring you to.
A. I see that paragraph.
Q. And you put in the words "false statement." Correct?
A. Right.
Q. So you publicly expressed the opinion that that statement is false. Correct?
A. True, for a variety of reasons.
Q. Let's hear them.
A. My understanding is that it is not Zundel's web site. It is my understanding that the material that is on that does not violate Canadian laws.
Q. So you have, by reviewing the Zundelsite, formed the opinion that the material on the Zundelsite does not violate Canadian laws.
A. I have not reviewed everything that is on the Zundelsite.
Q. You reviewed it enough to offer an opinion.
A. From what I have seen of it.
Q. You didn't say "from what I have seen of it." You said "false statement."
A. True. That is my opinion.
MR. KURZ: Thank you.
Could I make this an exhibit, please.
THE CHAIRPERSON: BN-9.
EXHIBIT NO. BN-9: Document entitled "Website draws ire of anti-hate group"
THE CHAIRPERSON: Before you re-examine, Mr. Christie, could we deal with scheduling.
We propose to sit in the following weeks: April 19 to 22; May 3 to 6; May 10 to 13; May 17 to 20; May 25 to 28; May 31 to June 3; June 14 to 17; June 21 to 24; June 28 to 30.
MR. FREIMAN: Those dates are satisfactory to the Commission. Again, I would ask, if it is possible, that final argument not be held in the weeks of May 25 to 28 or May 31 to June 3. The Commission will be represented in those weeks, but I have a fixed trial that will be proceeding on those dates.
MR. CHRISTIE: The first three dates were April 19 to 22, May 3 to 6, and May 10 to 13. In each of those weeks I have commitments. The 13 to 23 and the 3 to 14 I have given to the Supreme Court of British Columbia for the continuation of an ongoing trial for three weeks of hearing. They were in my letter of December 3.
MEMBER DEVINS: I thought that, if they were notified early enough, those dates would be fine.
MR. CHRISTIE: I understand that. What I said in that letter was that those dates of April 13 to 23 and May 3 to 14 have been tentatively reserved in the Supreme Court case which, after two weeks of hearing, the judge has ordered to be set over.
What I am saying is that they have not told us the dates. That is involving three other counsel. They have not told us what dates are convenient to the judge, and those dates have been given as tentatively available to the Court.
I don't know how far along they have gone in terms of fixing dates. I just said that those dates would be kept available for the Court for that reason.
THE CHAIRPERSON: I am going to suggest, Mr. Christie, that the Tribunal stated last day that we have to establish some priority here. I am relying on you to work it out with the Court.
MR. CHRISTIE: You are basically taking the days that I had made available to the Court. In effect, April 19 to May 13 will take a few days. April 13 to 18 they could still have.
MEMBER DEVINS: Mr. Christie, do you have any alternate dates before April 19?
MR. CHRISTIE: If you want to suggest dates before then, I will definitely check by telephone right away. I did tell my secretary to be available for that. If you have dates before April which are convenient to everyone else, I would definitely make a call right away and in two minutes I can say whether I can or not.
MR. KURZ: Maybe it would be better for Mr. Christie to let us know which dates he has. I think everyone will attempt to attorn to his available dates.
MR. CHRISTIE: If you want me to find out dates between now and April 19 that I am available, I will do that right away.
MR. ROSEN: I got Mr. Christie's letters and in both of them it appears that March 1 to 5 ‑‑ is that still available or not available?
MR. CHRISTIE: That is not available any more.
MR. ROSEN: For the record, Ms Bell and I have difficulty with many of these dates. Because we are just an interested party, we will accommodate the main players and look for alternate counsel.
THE CHAIRPERSON: We appreciate that.
Would it be useful to make a phone call?
MR. CHRISTIE: If you will let me, I will do that right away.
‑‑- Short Recess at 3:01 p.m.
‑‑- Upon resuming at 3:14 p.m.
MR. CHRISTIE: I have clarified that the following dates are available: January 11, 12, 13 and 14; March 3, 4, 5 and 8. I asked my secretary to phone the Court and find out if the dates have been set for what is in effect a Bersheid constitutional challenge which is set for another three weeks, but they don't know exactly when and they don't tell us when. We offer the dates, and they don't tell us what is convenient. They have to talk to lawyers and judges. I asked her if she would please call me back and tell me if they have fixed the dates so that the rest are available. Unfortunately, we have had to give them a variety of dates.
I have asked my client to leave the cell phone on in case she can tell me that. The only dates I can say for certain are available between now and those dates which I gave you in my letter of December 3 would be: January 11, 12, 13, 14 and March 3, 4, 5 and 8.
The problem with those April and early May dates is that we gave them to the Court. The dates of April 13 to 23 and May 3 to 14 have been tentatively reserved in the Supreme Court case which, after two weeks of hearing, the judge ordered to be set over for further hearings. They asked for available dates, and we gave them those. They could set them at any moment; they could be doing it now for all I know.
MEMBER DEVINS: Part of the problem is that you had given them available dates which you have also given to us as available dates.
MR. CHRISTIE: At the time when I wrote the letter on November 17, I had not then given those dates to the Court; that is true. You then wrote back on December 1 and said that you wanted me to lock in those dates. The only dates I could then lock in were dates I had not given to somebody else, and those dates were May 17 to 28, May 31 to June 4, June 14 to 30 and July 2 to 16.
As I explained in the following paragraph, I had to give those dates after November 17 to the Court because they wanted dates for the hearing. That is what happened. Between November 17 and December 3 I had two weeks of hearings in the Bersheid case before Madam Justice Kirkpatrick, and she wanted early dates.
THE CHAIRPERSON: The January dates, unfortunately, are unacceptable to the Tribunal. I am just not available on those dates; I will be away. The March dates conflict with certain other matters that the Tribunal has. We ask counsel, for the time being at least, to reserve them, and the Tribunal will see whether they can do anything to free those dates up, and we will let you know.
MR. FREIMAN: Could we have those dates again, please. March 3 to 8 is Wednesday through the next Monday, and that doesn't seem right.
MR. CHRISTIE: March 3, 4, 5 and 8 I am available and I would be able to be here.
THE CHAIRPERSON: We will see what we can do about those dates. I am going to ask you to negotiate, if that is the word, with the Court to preserve the other dates that we have spoken about in May.
MR. ROSEN: Mr. Chair, may I make a suggestion? The situation appears to be that the dates that Mr. Christie has set out in his letter of December 3, even the April dates ‑‑ what he is saying is that they are available, but they are being considered by another Court and they may not be used.
Could we mark them in some way so that they would be at least tentatively subject to getting some sort of confirmation from the Court in British Columbia through Mr. Christie as to whether any or all of them will be used.
What I am concerned about, sir, is that, as I understand it, we have four days this week and four days next week. Then there will be a significant break. In the meantime, the dates that everybody thought were available have been let go at this stage. I am concerned that it will just delay things further.
MR. CHRISTIE: I agree, and that is why I asked my secretary to phone the Court today and, if possible, find out if those dates have been fixed or what is happening with that case. At the moment I know, I will clearly indicate in a letter what the Court has decided. I am quite happy to do that.
MEMBER DEVINS: Do you think it would be possible before the end of this week to try to get that information?
MR. CHRISTIE: I can only say that my secretary is asking. It is a matter of a Vancouver judge who has asked us to go to Vancouver. I will do everything I can to find out. I just don't know when she wishes to hear it or when she can. Her schedule as a judge is pretty difficult.
MEMBER DEVINS: But she doesn't need all the weeks; she only needs some of the weeks?
MR. CHRISTIE: She needs three weeks. She determined, after a long discussion, that she felt that three weeks were necessary and that is what she set.
I will make every effort this week to find out what is convenient to the Court. The minute I know, I will let you know.
MR. KURZ: If I could make a further suggestion, I understand Mr. Christie's dilemma. He doesn't want to offend either tribunal, as it were.
If the dates were already accepted by the justice hearing the Bersheid case, I suppose that would be the end of it. As at this point, apparently it is uncertain.
We could take it even a step farther and say that, subject to the justice of the Supreme Court having taken those dates already, if Mr. Christie could communicate to the Court that we have taken those dates, they could look for others among Mr. Christie's available dates for that case. With that knowledge, it may well be that Mr. Christie's other dates can be used for the Bersheid case and we could use these dates. Obviously, if the Court says, "We have already selected them ‑‑"
THE CHAIRPERSON: We will leave it with Mr. Christie on the basis that he is going to attempt to persuade them to respect, if possible, the dates that we have set here.
MR. KURZ: Mr. Chair, there were some dates that were set earlier, and I am not sure if those dates have been vacated. There were some dates in January and February already set in addition to the dates that you mentioned today, Mr. Chair. Are those dates still available?
THE CHAIRPERSON: The dates that I put to all of you are the dates that I put to you this afternoon. What has happened now is that Mr. Christie has given some additional dates. January is not acceptable, so we now have some few additional days that the Tribunal is going to attempt to free up. We will let you know about that. Those are March 3, 4, 5 and 8.
MR. KURZ: If I may, Mr. Chair, there were dates of January 11 and 12, 18 and 19 and the week of February 18 that were mentioned at the last session. Are those ‑‑
THE CHAIRPERSON: Those are out.
Re-examination, Mr. Christie.
RE-EXAMINATION
MR. CHRISTIE:
Q. You were shown some excerpts in your cross-examination from "Challenges to the Network: Telecoms and the Internet" published by International Telecommunications Union.
Have you had an opportunity to look at the full text and see if those portions you were shown are in any way qualified?
A. I have not reviewed the complete document, but I do have some comments on some of the material there.
Q. Since it was provided to me by counsel for the Commission, I wonder if I could give that to you and you could refer to those comments.
A. As a publication of the ITU, it appears that this document was published for the primary audience of telephone companies and, as such, in many places it expresses information in terms of reference that would be most relevant to a telephone company. It certainly mentions and discusses various aspects of the Internet, but certain parts of the phraseology is in reference to that which a telephone company would be most familiar with.
For example, on page 18, in paragraph 3.2.1 there is the statement:
"In order to access the Internet the customer must connect through a telephone line or a leased line to Internet Service Providers."
That statement, as we have shown in our previous testimony, is incorrect. The customer has a variety of choices. This document itself, at what appears to be probably page 67, at the bottom lists three alternate methods of connecting which were also discussed in our testimony.
Another area that is worth noting is at page 65. The telephone company of Netherlands makes the statement in its Annual Report:
"Ultimately the Internet will become the third network for the company, following the fixed network and the mobile telephone network."
The inference there is that the fixed network refers to what would be referred to as the existing telephone switched circuit network. It is interesting that they refer to the mobile telephone network as a third network, in their viewpoint.
MR. FREIMAN: I rise because I have never understood proper re-examination to be, "Do you have any comments about this document?" which is apparently the question that Mr. Klatt heard if it wasn't the one that Mr. Christie asked. I don't believe this is proper re-examination.
MR. CHRISTIE: When my learned friend put to the witness a very small excerpt from a document and created the impression that the document signified that all Internet connection was by telephonic means or through a telephone, in my submission, the only way to put that document in context is for the expert to examine it in full context ‑‑ that is, the full document, not the excerpt. That is why I asked for the full document.
I am asking the witness to tell me whether, after reviewing the full document, he has observed anything that contradicts or refers to the part that he was shown and casts any further light on it. It is very similar to being asked a very narrow question that does not give you a full opportunity to make a response. That was the method chosen by the Commission in its cross-examination. They introduced this document for the first time from a very small excerpt. I got the full copy, and that is why I am putting it to him in this way.
THE CHAIRPERSON: The document originated in cross, did it not?
MR. FREIMAN: It did.
THE CHAIRPERSON: How do we avoid meandering through the rest of the document, unless it is irrelevant?
MR. FREIMAN: If Mr. Christie has specific questions through which he wishes to refer the witness about passages and about qualifications, that is fine. It would be interesting to know how, without discussions in the meantime, that could be, but so be it.
What he cannot do is just say, "Here is a document. What do you have to say about it?"
MR. CHRISTIE: I agree. I am not putting to him a document that was not introduced for the first time in cross-examination. I am asking to get his views on the full context of the document that he now has.
THE CHAIRPERSON: I will allow you to continue and see where we go.
MR. CHRISTIE:
Q. I wish to specifically ask you if there is anything that you observed in the full context of the document which casts a different light on the portion you were shown in cross-examination.
A. Do we have a reference to the specific area we looked at?
Q. It should be an exhibit, actually; I am not sure which one.
A. Unfortunately, I have not had a chance to review the complete document. I have only had a chance to look at a small portion of it.
THE CHAIRPERSON: Let me ask you this: Have you reviewed the document in the context of the reference to the document that was put to you in your cross-examination? Have you made that kind of analysis?
THE WITNESS: Not completely, only in excerpts. It is a rather extensive document, and it would take me some time to go through it.
THE CHAIRPERSON: He does not appear to have carried out the exercise that is implicit in the question you are putting to him.
MR. CHRISTIE: There were some questions that I was going to ask in relation to the full context.
THE CHAIRPERSON: Would you try, Mr. Christie, to put specific questions to him. As I read it, he is incapable of answering the question as you have put it to him.
MR. CHRISTIE:
Q. Apparently, you have glanced at the full document sometime this morning; is that right?
A. I paged through it and have noted two or three points that I happened to come across.
Q. They were in relation to the evidence that you had been shown in an excerpt from this document in cross-examination?
A. I am not sure which portions were referred to in cross-examination.
Q. Do you consider it necessary to look at the full context of the document in order to understand its meaning?
A. Not necessarily. I have seen a portion of it.
MR. CHRISTIE: I am going to come back to that. I would like to ask, if I could, to have an opportunity to look at the portion that was put in. I think there was an excerpt of this document ‑‑
THE CHAIRPERSON: Can you go on to something else and then do that at the break?
MR. CHRISTIE: Yes.
MR. FREIMAN: For your assistance, Mr. Christie, pages 18 and 64 were the pages that were put in.
MR. CHRISTIE: I had better look at the exact reference. Page 18 was Internet economics ‑‑
MR. FREIMAN: For your benefit, it has nothing at all to do with the proposition you put to Mr. Klatt as ‑‑
MR. CHRISTIE: That is your opinion. Pages 18 and 64?
MR. FREIMAN: That is correct. For further assistance, it was the first paragraph on page 18, under "Introduction" and the first paragraph on page 64 under "Challenges to the Network."
THE CHAIRPERSON: Do you have an exhibit number?
MR. FREIMAN: HR-24.
MR. CHRISTIE:
Q. You were asked in your cross-examination about the "Our Hero" page. You were asked to look at it and tell us what you did not believe about it.
Have you ever formed any beliefs at all about the "Our Hero" page, such that you believed in any of it?
A. No, I haven't.
Q. How many sites, at the maximum period of your web site activity, did you host?
A. Probably less than 50, but probably more than 30; somewhere between 30 and 50.
Q. How long, to your knowledge, did you host the "Our Hero" web page?
A. I don't recall when that account was initially set up.
Q. Were you ever aware that there was a Zundel mirror that was part of the Freedom site? Were you ever aware of that?
A. Not until I came across this reference to it here.
Q. "Here" meaning...? In this Hearing?
A. Correct.
Q. Have you been shown anything that indicates that there actually was a Zundel mirror on your web server?
A. Other than that printout listing, no.
Q. Do you know where that came from?
A. Mr. Kurz claims it comes from the webcom site with that URL.
Q. Is that something you produced or had something to do with?
A. No.
Q. In the course of the reference to mirror sites you were asked a number of questions. Does a mirror site signify involvement by the original author in its creation? Does the existence of a mirror site signify involvement by the original author in its creation?
A. No, it would not necessarily indicate that at all. In fact, mirror sites can be created without the original web site author's knowledge or permission.
Q. You were shown a discussion group in which you participated, HR-32. How much of the discussion group was set out there; do you know?
A. That is the one with the collection of responses regarding cable modems?
Q. That's right. I am giving you HR-32.
How much of the discussion group is set out there?
A. What that particular HR-32 document is is the e-mail that was posted by Markus Baumann. It is evidently his collection of responses and comments posted under that topic heading. Whether or not it is the complete extent of responses that were addressed regarding that topic I don't know.
Q. My question is not whether those responses are complete. My question is: With regard to that discussion group, it was suggested to you that you should remember what you said, or words to that effect. How much of that discussion group that is depicted in HR-32 is there depicted; what percentage of it?
A. An extremely small amount. Inet Access is one of the more heavily posted to mailing lists subscribed to. It is not uncommon to get several hundred messages a day coming through on that particular mailing list.
Q. What percentage of the total traffic on that discussion group would this exhibit represent in the course of a year?
A. An extremely small fraction. If you consider 250 messages a day as somewhat typical, times 360 days in the year, that would be a pretty small number.
Q. You were shown HR-31 which allegedly includes some remarks of yours. Was that a situation that continued; is this situation in HR-31 still pertaining?
A. That is the Bill Burke one?
Q. That's right, April 21, 1996.
A. The situation referring to the number of Internet users on cable in that area?
Q. Yes.
A. The cable company that is currently running the Internet service over cable has continued to add additional users to the cable residential Internet access service that they provide.
MR. FREIMAN: This strikes me as being entirely hearsay.
MR. CHRISTIE: This is an expert.
THE WITNESS: I have personal knowledge of it.
MR. CHRISTIE: I took it that this was to be of some value to indicate a state of affairs at some time, and that is why I am asking whether that pertains at the time, and my friend doesn't want to hear it.
Q. As to the situation now pertaining, can you say anything further on that?
A. Yes. It is my personal knowledge because many of the customers that are on cable Internet are also customers of ours as a computer dealer. We deal with many of the same customers that the cable company deals with as Internet access customers.
Q. You were asked to search for Zundelsite, and you found that there was none. Is that correct ‑‑ when you did a search for Zundelsite in your cross-examination?
A. I don't think that was what we were looking for.
Q. Zundelsite.com. It was the last time around. This is my first chance to examine you on that.
A. Yes, we did search for that URL, and it was not accessible.
Q. Have you searched for it since?
A. No, I don't think I have.
Q. Is the number on the domain site of a web site a telephone number?
A. No, it is not.
Q. How many digits is it?
A. It is made up of four groups of three digits, typically.
Q. Do you have HR-28?
A. What does it look like?
Q. It should be a reservation for a domain name for "Zundelsite." It was put to you in cross-examination in November.
A. Yes, I have it.
Q. You were asked a great deal about why the domain servers listed were alpha.fairview.net and beta.ftcnet. You were asked questions about that?
A. I believe so.
Q. Did you ever pay for that reservation?
A. I don't believe we did.
Q. When you searched for that Zundelsite.com, you found there were no locations for it?
A. Apparently, it is not active or accessible.
Q. At one point you were asked about leasing lines and you were asked if you leased a line from BC Tel.
When you had your web server, from whom did you rent or lease the line that connected your web server to the Internet? From whom did you rent that?
A. It was an organization or entity known as BC Tel Advanced Communications.
Q. Did you get a telephone bill from them?
A. No, we didn't.
Q. What kind of company was that? Was BC Tel Advanced Communications a telephone company?
A. They don't describe themselves as that, no.
Q. Mr. Freiman asked you many questions about the transmission method of communications that originate with the Internet and whether they used mixed copper and fibre, whether they came through the same pipes, whether they use the same circuits as the telephone system.
What would happen to the Internet if it tried to use telephone switches?
A. It doesn't work through telephone switches; it works through what is referred to as routers. A circuit-switched network is used for setting up circuits for voice communications. The routers perform a different function in that they route packets based on the destination addresses of the packets.
Internet telephony calls are handled through routers as well; they do not go through the telephone switches, except perhaps at the gateway end.
Q. In the course of your cross-examination you were confronted with a book called "Canadian Internet Handbook" ‑‑ I think it was 1996 if I am not mistaken. Have you had an opportunity to look at anything further in that regard, a more recent edition?
A. I know there are more recent editions. I think he puts one out every year.
Q. In relation to the International Telecommunications Union Challenges book, were there anywhere located there contrasts between the Internet and the telephone system, to your knowledge?
A. I think there is a section that makes a comparison between the telephone network and the Internet.
Q. It is not on page 18 or page 64. Could you find it if you were to be shown that publication to observe the distinction between the telephone system and the Internet?
A. It may take me a while to locate it.
Q. I will try to find that at some point.
In the course of your evidence you were shown your affidavit, paragraph 5, and you were asked about that. Are you able to say more on that than you were allowed to say in relation to the subject matter that you were asked about?
MR. FREIMAN: I object to that. That is a totally improper question. That is really: Here is a document. Do you want to say something about it?
That is not permissible.
MR. CHRISTIE: Let me see the affidavit. There is something in paragraph 5 that was put to him that I want to ask him about.
Q. Do you have HR-21?
A. Yes.
Q. Were you at that time addressing the distinctions between the telephone system and the Internet?
A. Not specifically, no.
Q. Is that paragraph complete in that context?
A. No. The sentence states:
"It modulates and demodulates computer digital data to analog audio tones since the local telephone system works with audio tones only."
It is incomplete. The word "audio" is used, not the word "audible." It should read "audio frequency tones" or "audio frequency electrical tones." It is not to be inferred that there is actually sound or audible tones going over the electrical wires.
Q. Are you saying that the paragraph is in error?
A. It is incomplete.
THE CHAIRPERSON: You are not entitled to lead in re-examination any more than in-chief.
MR. CHRISTIE: I agree.
Could we take the afternoon break.
THE CHAIRPERSON: Fifteen minutes.
‑‑- Short Recess at 3:55 p.m.
‑‑- Upon resuming at 4:07 p.m.
MR. CHRISTIE:
Q. In Exhibit HR-24 you were shown pages 18 and 64. I would like to ask you if you considered the graph on page 24, Figure 3.2 Telephone Traffic and Internet Traffic: What's the Difference?
Relevant to the evidence you gave pertaining to that document ‑‑
MR. FREIMAN: Mr. Christie has asked him to look at the diagram and relevant to his testimony to say what? That is not a question.
MR. CHRISTIE: The purpose, I understood, of putting HR-24 to the witness was to show him pages 18 and 64, which was a very clever selection to try to emphasize that there is some similarity between the Internet and the telephone.
Had the document as a whole been put in, we could have argued later that that would have been a very selective portion which excludes the obvious consideration of the difference between the telephone system and the Internet which is quite clearly in the rest of the book.
MR. FREIMAN: Is Mr. Christie giving evidence?
MR. CHRISTIE: Is Mr. Christie giving evidence? He is giving an explanation in answer to your objection, to show that, if one misleads by showing only a small portion of a text, there is a necessity in the interests of justice to show other parts of the text to the expert to see if in relation to their opinion it has any bearing to explain those portions that they were shown.
THE CHAIRPERSON: Subject to relevance, I suppose you can refer him to other parts of the text for his comment. Refer him to a specific portion of the text and ask him to comment, if that is what you are seeking to do.
MR. CHRISTIE:
Q. I will refer to page 24. Does that provide any insight into the differences between the Internet and the telephone system?
A. I believe the graphic that is shown in Figure 3.2 is illustrating the differences between the financial basis for the Internet and the public switched telephone network. On the Internet it is typically a flat rate or fixed rate pricing model; whereas, on the public switched telephone network it is typically a usage-based fee schedule.
Q. You were asked in relation to access to the Internet backbone if you used BC Tel Advanced Communications. Does BC Tel Advanced Communications transmit phone calls or voice calls?
A. Not to my knowledge.
Q. Does Bell Canada Advanced Communications carry phone calls?
A. I am not familiar with Bell Canada's capabilities or service offerings.
Q. You were shown something called the Cook Report. You were asked if Mr. Cook writes on Internet-related products, and you had some familiarity with that. Do you recall that?
A. Yes, I have seen occasional postings from Mr. Cook and responses to his postings. Gordon Cook may have a high opinion of his own abilities, but ‑‑
THE CHAIRPERSON: He has not asked you a question yet.
MR. CHRISTIE:
Q. Has Mr. Cook, in your view, accurately expressed the subject matter that is before this inquiry, the portions you were shown?
A. I would have to take a look again to refresh my memory on what he was stating.
Q. Do you have any specific knowledge as to the reliability of Mr. Cook's opinions in relation to the matters of what is and is not a telephone line?
THE CHAIRPERSON: You mean any opinion about it.
MR. CHRISTIE: I am sorry, what did I say?
THE CHAIRPERSON: His opinion about Mr. Cook's reliability is what you are seeking?
MR. CHRISTIE: Yes.
THE WITNESS: Some of the references that I have seen indicate that he is not held in very high regard.
MR. FREIMAN: May I simply comment. The reason that Mr. Christie cannot find the testimony is because Mr. Klatt did not confirm the authoritative status of Mr. Cook, so nothing was put to him by Mr. Cook.
MR. CHRISTIE: That is not the way I recorded the evidence.
THE CHAIRPERSON: The answer he has given is that it does not seem to have any value on the subject.
MR. CHRISTIE:
Q. To your knowledge as an expert, has anyone been confronted with the question previously in any court or legal proceeding as to whether telephony applied to Internet access?
THE CHAIRPERSON: How could he know that, Mr. Christie?
MR. CHRISTIE: Because he is an expert in the subject. Why not?
MR. FREIMAN: In what proceedings?
MR. CHRISTIE: If there is going to be an interruption like that, I suppose we should just leave it and let you make a ruling.
THE CHAIRPERSON: If you are referring to judicial authorities of some kind, it is not in this witness' province to respond to that.
MR. CHRISTIE: I appreciate that. May I rephrase that question?
THE CHAIRPERSON: Yes.
MR. CHRISTIE:
Q. In the course of your cross-examination, many questions were put to you to make suggestions to you that the Internet is a telephone system, or words to that effect. To your knowledge, has any expert had to consider or publish anything until now on whether telephony applied to Internet access?
A. Not that I am aware of, but I do understand that that particular topic is being looked at in the U.S. in terms of the FCC regulatory issues that they deal with. There is some discussion regarding whether or not the Internet Service Providers should be exempt from certain types of tariffs based on their current regulatory status. I am not aware of any recent rulings that have answered that question definitively, but my understanding is that topics relating to this question are under consideration by the FCC.
Q. Do you know if any attempts have been made to regulate alphanumeric text in relation to Canadian regulatory authorities?
A. I am not aware in any great detail, but I believe there was a CRTC ruling that indicated that broadcast material in the form of alphanumeric text is not subject to regulation by the CRTC.
Q. At one point you were confronted with similarities between a phone and a fax machine in the course of your cross-examination, as to whether a wire was used, whether it went through a local telephone company switched telephone, or used frequencies in the audio frequency range. Do the similarities between a fax and a phone apply to the Internet and a phone?
A. Only in a limited context.
Q. What context would that be?
A. In that both a telephone, a fax machine and a personal computer can be used to convey information.
Q. There were nine conditions that were read to you at one point. I am not sure where it came from. They were probably from the text of 1996, the nine conditions for telecommunications. Do you recall that? It has been a long time.
A. I don't know that it was related to telecommunications. I think it was characteristics of a telephone call perhaps.
Q. That's right.
What other conditions, other than those nine conditions, are necessary for Internet access?
A. Internet access can be accomplished in several other ways, other than through a dial-up method. Most, if not all, of those nine conditions probably would not apply to other methods of Internet access.
MR. CHRISTIE: Those are my questions. Thank you.
THE CHAIRPERSON: Thank you, Mr. Klatt.
MR. CHRISTIE: The next witness is Mr. Weber. I faxed to the Tribunal on Friday Mr. Weber's CV and his anticipated evidence.
SWORN: MARK WEBER
Costa Mesa
California
EXAMINATION-IN-CHIEF RE QUALIFICATIONS
MR. CHRISTIE:
Q. Mr. Weber, have you ever been qualified to testify in the courts of Ontario as an expert in history?
A. Yes, I have.
MR. ROSEN: I have to object. I am not sure why Mr. Weber is being called as an expert. I don't understand under what rubric or heading he is being called as an expert.
In any event, my friend begins by saying, "Have you ever been qualified as an expert in Ontario in history?" In my respectful submission, that is not what I understood from my friend's material, that he was calling this witness as a historian. My understanding was that he was being called in a much narrower way, which has to do with a study of the Holocaust, a revisionist study of the Holocaust. In my respectful submission, that is something totally different.
I think we should clarify at the beginning as to why this witness is being called.
Second, I don't think it is proper for my friend to begin by saying, "Have you ever been qualified in an Ontario Court as a historian?"
THE CHAIRPERSON: The purpose of this exercise is an attempt on Mr. Christie's part to qualify this witness as an expert. I think the Tribunal will wait until we hear what is being said at the end of that section of this process.
MR. CHRISTIE:
Q. Were you ever qualified by the courts of Ontario as an expert in history?
A. Yes, I was.
Q. When was that?
A. That was in 1988. I don't remember the month.
Q. In what court was it?
A. It was in a court here in Toronto during the trial of Ernst Zundel on a false news charge. I don't remember the name of the court.
Q. How long did you testify?
A. A week, I think, five or six days.
Q. And you were testifying in that situation about what historical circumstance?
A. I testified extensively on Second World War history, Jewish history in the 20th century, German-Jewish relations. That was the nature of my testimony.
Q. You went through a process of cross-examination on your expertise at that time?
A. Yes, I did.
Q. And the court accepted you as an expert at that time?
A. Yes.
Q. That was in a criminal prosecution; is that correct?
A. That is correct.
Q. In front of a jury?
A. Yes.
Q. In your background you have studied at certain universities for the purpose of qualifying for a Master's Degree in history; is that correct?
A. Yes.
Q. You are presently the Director of the Institute for Historical Review and Editor of the Journal of Historical Review. Is that correct?
A. That is correct.
Q. That is published six times per year; is that correct?
A. That's right.
Q. This is a document which I take to be a curriculum vitae. Are you familiar with that?
A. Yes.
Q. Could you look through it and make sure that it is something you are familiar with and that it accurately reflects your background and your opinion.
A. Yes, it does.
MR. CHRISTIE: Could that be marked as an exhibit, please.
MR. ROSEN: I object. As I understood the question, he wants to put in his CV and the attached opinion as an exhibit before he has been qualified.
MR. CHRISTIE: The particulars of the background and curriculum vitae of the witness ‑‑
THE CHAIRPERSON: If we admit this, it is for the limited purpose of this voir dire, if you like, as to whether we are going to qualify him as a witness.
MR. ROSEN: Does your copy have something called "Anticipated Evidence" attached to the back?
THE CHAIRPERSON: Yes, it does.
MR. CHRISTIE: In my submission, as it is more than likely that the parties will oppose the qualification of the witness, it is necessary for the record for two things to occur: that we will be able to show the background of the witness in a concise form, together with his anticipated evidence, to show the relevance of the evidence.
THE CHAIRPERSON: The Tribunal did not look at that portion of it. We are prepared to admit his curriculum vitae ‑‑ that is, the first page and those pages dealing with publications ‑‑ which will be subject, of course, to cross-examination. Until he is qualified, we are not going to admit the last three pages concerning his anticipated evidence. We will deal with that in due time if he becomes qualified to give evidence.
MR. CHRISTIE:
Q. You are referred to in your curriculum vitae as an accredited historian. What does that mean?
A. It means that I have recognized credentials in history and that I have been recognized by others as a qualified, bona fide historian. I am a member of historical associations; I have written extensively on history. It also makes reference to the fact that a court in Canada found me qualified as a historian.
Q. Have you been invited to speak on the subject of your views of history and your knowledge of history on the Montel Williams program?
A. Yes.
Q. Have you been interviewed on CBS Television, on "60 Minutes"?
A. I was shown on "60 Minutes." I wasn't interviewed for that purpose, but I was shown on "60 Minutes."
Q. You studied at the University of Illinois in Chicago. Is that correct?
A. That is correct.
Q. What did you study there?
A. History, political science, economics, but mostly history.
Q. How long were you there?
A. I was there for a year.
Q. And the University of Munich in Germany?
A. I was there for two semesters at the University of Munich, one year.
Q. One year?
A. Yes.
Q. And Portland State University?
A. I went there and then went back. Altogether I was there for three or four years.
Q. And you received a Bachelor's Degree in history; is that right?
A. That's correct.
Q. It says with high honours. What does that mean?
A. For those who do very well in history, they receive an accolade of high honours, summa cum laude.
Q. Did you receive some recognition in that regard?
A. Yes, I did. My Bachelor's Degree was with high honours.
Q. Did you do graduate work at the University of Indiana in Bloomington?
A. Yes.
Q. Were you a history instructor there?
A. Yes.
Q. Did you receive a Master of Arts Degree in European history in 1977?
A. That is correct.
Q. Since then you travelled and taught in Africa; is that right?
A. I travelled in Africa and taught before I graduated from Indiana University.
Q. Sorry...?
A. I actually travelled in Africa and taught in Africa before I was at Indiana. I have taught in Africa, yes.
Q. How much research have you done in the subject of the Holocaust in the Archives in Washington, D.C. from 1978 to 1983?
A. I did very extensive research on this issue at the National Archives and Library of Congress. I have done research also in other archives as well on this subject.
Q. What other archives have you done research in?
A. Institute for Contemporary History, the Leo Beck Institute in ‑‑
Q. Where is the Institute for Contemporary History?
A. In Munich. The Leo Beck Institute in New York. I guess that's all.
Q. You have worked at the IHR since 1991; is that correct?
A. That is correct.
Q. You have been the Editor of the IHR's journal, and it says "acclaimed journal." How has this been acclaimed?
A. It has been acclaimed in several ways. It has an Editorial Advisory Committee made up of historians and other academics that praise it and give it its imprimatur, so to speak. The journal is also subscribed to by a number of leading research centres and academic libraries around the world, including New York University, Harvard University, Yale, Institute for Contemporary History in Munich, the University of Tel Aviv in Israel, Hebrew University in Israel, the Bibliothèque Nationale in France.
A number of historians, some of them better known and more accredited than others, have spoken at our conferences and praised the journal and have contributed to the journal.
Q. You have published books and booklets as set out in your curriculum vitae; is that right?
A. That is correct.
Q. The reviews that you have done and articles that you have done, where were they published?
A. This is a listing, essentially, of reviews and articles that appeared in our journal. I have also written for other periodicals, and a number of articles I have written have appeared in periodicals and newspapers and magazines in Poland, Russia, Spain, Germany, France and in a number of other countries as well.
This listing is really a listing of the more noteworthy articles just in the journal, but it gives an idea of some of the writing and some of the subjects I have covered. I have written much more than what is listed here, but this is a fairly good indication of what I have written on.
MR. CHRISTIE: Those are my questions on the qualification issue. I take it you don't want me to go into the scope or purpose of his evidence. You don't want me to deal with his anticipated evidence.
Those are my questions.
MR. KURZ: I am wondering if Mr. Christie, now that he has examined his witness in-chief, could tell us exactly what he proposes that he be accredited as an expert in.
MR. CHRISTIE: I thought you didn't want to hear about the anticipated evidence.
MR. KURZ: I am not asking for the anticipated evidence, Mr. Chair, just the area in which Mr. Christie says that he should be accredited to offer opinion evidence in the context of this Hearing, to help form the scope of cross-examination, if any, on these credentials.
MR. CHRISTIE: He, in my submission, will be qualified to testify in the same way as Professor Schweitzer, to discuss the subject of the Zundelsite documents from the perspective of their effect in society and their social context, and to show what part they play in an ongoing historical debate, and to show that they are in fact part of a growing body of academic research into the field of what took place in the Second World War.
I anticipate he will be able to deal with the aspects of the documents in HR-2. He will be able to testify about their relationship to other historical writing on the subject and to put it in context with other writing that opposes it, and to deal with its effects in society as he perceives it since he is involved in the same field of publication.
That is part of what I anticipate his evidence will be.
THE CHAIRPERSON: I suppose that may be a subject of some exploration in cross-examination and argument, and we will do that tomorrow morning at 10 o'clock.
MR. FREIMAN: Before we rise, I just want to echo my concerns, which are similar to those raised by Mr. Kurz.
It is all very well and good to talk about what he is going to say. That does not help us at all in terms of what he is an expert in. Every previous expert has been proffered on the basis that he is an expert in a certain topic. All we have heard today is that Mr. Weber is an expert in history. That is a pretty wide expertise.
I think Mr. Christie might properly spend the evening considering whether he can narrow down to identify a field of expertise rather than a series of questions to which Mr. Weber's background fits him to give opinion evidence.
MR. ROSEN: That was my objection as well.
MR. CHRISTIE: I am glad we all echo each other.
Let me just say that the documents that I have supplied indicate clearly that the witness is an expert in the subject of Holocaust revisionism. It is a historical field of research that he has considerable experience in. I did not go through the articles that are referred to in the curriculum vitae, but they have quite clearly to do with the Second World War primarily, and Holocaust revisionism is a large part of it.
The documents that are in HR-2, the documents that are supposed to be offensive to the point of breaching section 13(1) ‑‑ it will be my submission that they are Holocaust revisionist opinions and views, to a large extent. To that extent, this witness is competent to testify as to their relationship with an ongoing historical debate.
I notice there is a double standard raised every time there is an expert being tendered by the Respondent, but I don't recall there being any great cataclysm of minutiae to identify the expertise of Dr. Schweitzer. He was an expert in historic antisemitism. We didn't get into nitpicking over what that might mean or even how it was relevant. I remember what objections I raised were raised in answer to his attempts at qualification and, of course, they were overruled.
It strikes me that counsel for the various objectors who are raising issues at this point should not be able to obstruct the attempt to qualify a witness in the subject of Holocaust revisionism and its relationship to an ongoing historical debate any more than I was entitled to obstruct even the attempt at qualification of the expert from the New York City college who testified earlier.
THE CHAIRPERSON: I am going to give you and other counsel full opportunity to attempt to qualify this witness. I suppose one of the issues might be whether, having said that the purpose of this witness is to deal with the evidence of Dr. Schweitzer in connection with the focus of his evidence, this witness has the same or comparable qualifications to Dr. Schweitzer in a manner that allows him to give opinion evidence in that area.
We will explore that tomorrow.
There is a couple of matters I want to deal with in terms of certain documents that were tendered in the course of Mr. Klatt's evidence. There were two documents that were not marked in the course of your examination-in-chief, Mr. Christie. One was the Valley Link Connect Inc. and the other was Sunshine Communications Internet Access. Those documents were not marked. I don't propose to mark them unless counsel say they wish them marked.
MR. CHRISTIE: Could they be marked, please. I thought they were referred to. If it was an oversight on my part, I apologize.
THE CHAIRPERSON: We can ask counsel to look at their copies of those two documents overnight, and we will address it in the morning.
Then there is a third document, the Transatlantic Online two-page document. I will hear you on those in the morning. The Registrar has those documents if you wish to look at them.
‑‑- Whereupon the Hearing adjourned at 4:41 p.m.
to resume on Tuesday, December 8, 1998
at 10:00 a.m.