Toronto, Ontario

‑‑- Upon resuming on Tuesday, December 15, 1998

    at 10:10 a.m.

         THE CHAIRPERSON:  Good morning.  We will deal with the motions before us.

         At the conclusion of the last Hearing week the Tribunal reserved its decision on two motions brought by the Respondent, the first with regard to the resignation of Member Jain and the impact of the legislative amendments to the Canadian Human Rights Act, now Canadian Human Rights Act, Statutes of Canada, 1998, Chapter 9.  The second sought to qualify Mark Weber as an expert witness.

         Turning first to the effect of Member Jain's resignation, Mr. Christie on behalf of the Respondent and supported by the Canadian Association for Free Expression Inc. submitted that pursuant to section 49(2) of the Act as amended a two-member tribunal is no longer possible.  He did not argue that Member Jain's resignation otherwise resulted in a loss of jurisdiction.  He simply submitted that the amendments currently contemplate panels of a single member or three members, but not two.

         In support of his argument Mr. Christie relied on the appointment of the remaining Members of this Tribunal Panel, Chair Pensa and Member Devins, to the newly-established Canadian Human Rights Tribunal created under the amended Act.  It was submitted that, by virtue of being appointed to the new Tribunal, the appointment provisions set out in the new Act apply to these proceedings.  It was further submitted that, since the President of the Tribunal originally concluded that this Hearing warranted three Members, it could not now be brought into compliance with the amended requirements by reducing this Panel to a sole Member.

         The Commission, supported by both the Complainants and the remaining Intervenors, maintained that the amended Act simply does not apply.  It was argued that the appointment of the Panel was a jurisdictional matter and that, therefore, the amendments were not to be applied retrospectively.

         As for the appointment of the current Members of this Panel for the Canadian Human Rights Tribunal, it was submitted that that merely establishes eligibility for appointment to future Panels and does not alter the Members' status at this Hearing.

         In reply, Mr. Christie maintained that the appointment provisions were procedural only and, therefore, were to be applied retroactively.

         The essence of Mr. Christie's argument is that, once we were appointed as Members under the amended Act, the amended provisions governing the appointment of a Panel must apply.  In our view, the foundation of the Respondent's submission collapses two distinct "appointment" procedures.

         Under the applicable legislative framework for both the former and the current Act, there are two separate appointments which must be made before a Member or Members can hear a complaint.  The first essential appointment is made by the Governor in Council establishing a list of individuals who make up the Tribunal (section 48.1 of the Act).

         From those duly appointed to the roster, the President of the Tribunal then has a statutory duty to assign a Member or Members to an individual Panel to inquire into a specific complaint (section 49.1(2) of the Act.

         These are two discrete appointment schemes, with the former only making a Member eligible for the latter. 

         All of the Members originally appointed to hear this matter had previously been appointed to the Human Rights Tribunal.  On November 29, 1996 we were appointed by the President to inquire into the complaint now before us.

         In our view, the subsequent appointment of two of the Panel Members to the newly-created Human Rights Tribunal does not in any way alter the character of our previous appointment to this Panel.  It merely allows the President to appoint us to other cases after June 30, 1998.  Nor we do accept the submission that the assignment of Members to inquire into a complaint is procedural so that section 49(2) should be applied retrospectively.

         We note that the Respondent himself asserted that failure to comply with the requirements of the appointment procedures resulted in a loss of jurisdiction and could not be cured.  If we were to accept the Respondent's position, we would be in the anomalous position of retroactively applying selection criteria which could not have been considered, yet which would vitiate otherwise legal proceedings.

         There is no dispute that the President of the Tribunal could have chosen under the old assignment provisions to appoint only two Members to this Panel. 

         The necessary implication of the Respondent's argument is that a Panel, although legally constituted when originally established, would subsequently lose jurisdiction and would not be capable of being cured.  In our view, such an interpretation is contrary to both common sense and the legislative intent.

         Section 33(3) of the amended Act provides as follows:

         "The members of any Human Rights Tribunal appointed under the Canadian Human Rights Act before the commencement day have jurisdiction with respect to any inquiry into the complaint in respect of which the Human Rights Tribunal was appointed."

         This transition provision is unambiguous.  Panels appointed prior to the enactment of the amendments are meant to continue as previously constituted.  We see nothing in principle which would alter that intent by virtue of a change in composition resulting from the resignation of a Member.  Indeed, the Respondent did not argue that the resignation per se resulted in a loss of jurisdiction.  It was only submitted that a two-Member Panel could not survive the June 30, 1998 amendments to the Act.

         Finally, in our view, there is no prejudice to the Respondent in continuing with two Members.  It was argued that the Respondent was entitled to the benefit of the expertise of three Members and that he should not be put at the risk of a deadlocked decision by the Panel.

         Bedford Discount Meat & Grocery v. Nova Scotia Minister of Finance, 1933 Nova Scotia Journal No. 356, a decision of the Nova Scotia Court of Appeal, was cited as authority for the submission.  We do not find this case to be particularly helpful.  It merely states the obvious that, where there is uncertainty as to the decision rendered by an administrative agency, the matter is to be remitted for a clear decision on the merits.  It does not stand for the proposition that two-Member Panels cannot stand.

         Having regard to the possibility that as the two remaining Members we may not agree in our ultimate conclusion, we note that the complaint may well fail if there is not a unanimous decision.  In any event, this is a purely hypothetical problem which should not deprive us of jurisdiction at this stage in the proceedings.

         Other tribunal panels have considered parallel arguments and have elected to proceed in the face of a similar resignation.  (See interim decision May 21, 1997 in Peter and Trudy Jacobs and Canadian Human Rights Commission v. Mohawk Council of Kahnawake.  The Tribunal ruling is dated December 16, 1996 in John Mills and Canadian Human Rights Commission v. VIA Rail Inc.

         We do not consider the amendments to the Act to be a bar to continuing with two Members nor have we been persuaded that we have otherwise lost jurisdiction as a result of Member Jain's resignation.

         Accordingly, we dismiss the motion.

         The Respondent's second motion has to do with Mark Weber and an application to qualify him as an expert witness in a wide-ranging capacity.

         He is tendered as an expert in Holocaust history and revisionism and the historical relationship between Jews and Germans or non-Jews in modern times, as a historian who can contest the opinions provided by Dr. Schweitzer and, generally, as someone who can provide an expert opinion on the social and historiographic context of Holocaust revisionism as expressed in the material found on the Zundelsite.

         We heard more than two days of evidence from this witness on his qualifications while he was subjected to extended examination-in-chief and cross-examination and redirect examination.  Ultimately, the qualification of this witness was the subject of strenuous argument.

         The Commission, supported by the Complainants and all of the Intervenors save Mr. Fromm, vigorously opposed the acceptance of this witness as an expert.  In their view, he did not possess sufficient academic qualifications, and his publications and indeed, it was argued, his entire area of expertise have been rejected by his academic peers.

         Furthermore, it was submitted that he has demonstrated through the misleading nature of his published articles that he is inherently unreliable.  In any event, it was argued that the proposed evidence of this witness was not relevant to the issues before the Tribunal.

         We have given these arguments careful consideration.  Although we have grave reservations as to the academic qualifications and scholarly integrity of this witness, we are prepared to accept him as an expert in Holocaust revisionism as he and others have defined that field.  We would, however, allow this evidence only for the very limited purpose of establishing the context in which the Holocaust revisionist community operates.

         We do not accept Mr. Weber as an expert sociologist or as a historian beyond the field of Holocaust revisionism. 

         We perceive his expertise to be quite limited and would expect the evidence to be very focused.  We would remind the parties that our May 25, 1997 ruling on the relevance of the truth of the material found in the Zundelsite is not an issue properly before us, and we will not entertain evidence in this regard.

         In arriving at our decision, we have considered the position of this historical discipline which is well outside the mainstream of academic acceptance and that, as a result, many of those who study or who are experts in the field of Holocaust revisionism will not likely possess traditional academic qualifications.

         We are also mindful that this is the third expert witness that the Respondent has tendered in this area and that the first two were not deemed by us to qualify as expert witnesses.  These witnesses have all been called to give evidence that the Respondent has suggested is critical to his response to the complaints before us.

         In all the circumstances of this case, we are inclined to allow this evidence to be led for the very narrow purpose which we have set out subject, of course, to argument as to the weight to be given to such evidence.

         Where do we go from here?  Mr. Christie, are you calling another witness?

         MR. CHRISTIE:  I had suggested that we might deal with the motion regarding the reasonable apprehension of bias arising out of the appointment procedures of the new Tribunal.  That was something we were going to discuss on Wednesday, December 9, or maybe the 10th.

         THE CHAIRPERSON:  Are counsel ready to deal with the motion?

         We will hear your argument on the motion.

ARGUMENT ON BEHALF OF THE RESPONDENT


         MR. CHRISTIE:  This motion arises out of the provisions of section 48.1(1) of the Canadian Human Rights Act which establishes as of June 30, 1998 a new Tribunal, namely the Canadian Human Rights Tribunal.

         Section 48.1(2) of the Act provides that persons appointed as members of the Tribunal must have experience, expertise, and interest in and sensitivity to human rights.

         Our position is that Chair Pensa and the associate Ms Devins were appointed by Order in Council to the Canadian Human Rights Tribunal on June 30, 1998 and that the applications of the principles that are required for that appointment, by necessary implication, mean that the Chair and Ms Devins are persons who have experience, expertise, interest in and sensitivity to human rights. 

         I have read the material filed by the various Intervenors and the Commission, and it is clear that they think that it is ridiculous to think that anyone with those qualifications would, prima facie, not be entitled to sit on the Human Rights Tribunal.

         I have tried to find other examples of administrative tribunals or bodies that are created for adjudicative purposes where the conditions of appointment are experience, expertise, interest in and sensitivity to the very thing being inquired into.  I have been able to find none.  The reason, I think, that one cannot find any is that it would be obviously an indication of a predisposition toward one side of the argument in a case involving the issue that is involved here or in any tribunal.

         For example, if it was an administrative tribunal such as the Discipline Committee of the Law Society and it was said, for instance, that members appointed to the Discipline Committee must have experience, expertise, interest in and sensitivity to lawyers' rights, it would be clearly the case that one side of the argument is to be treated with greater sensitivity, interest and expertise than the other.

         This is equally true, for instance, if one had an inquiry into the Transport Safety Board with sensitivities to pilots' rights or any issue where you have on the one hand a body such as is the case here.  The Canadian Human Rights Commission represents human rights. 

         In this context, it is clear that human rights can conflict with Charter rights.  Charter rights are individual rights; for human rights you have to be a member of a race, religion, ethnic origin, sexual orientation or some discrete group which has special status under the Act to be protected.  Such groups are defined in the Act and given a specific identity based upon either a racial characteristic, a religious characteristic, a sexual characteristic or physical or mental disability or marital status.

         THE CHAIRPERSON:  How can that provision be read as overriding the individual rights enshrined in the Charter?

         MR. CHRISTIE:  Sir, it is this that makes it override.  There has to be sensitivity to human rights.  There is no required sensitivity to Charter rights.  There is no required expertise in Charter rights.  There is no required interest in Charter rights and no required experience in Charter rights.  But there is a required experience, expertise, interest in and sensitivity to human rights.

         MEMBER DEVINS:  Mr. Christie, isn't that simply the subject matter of human rights issues as opposed to a sensitivity or predisposition to one particular right or other?

         MR. CHRISTIE:  The definition of "human rights" is set out in the Human Rights Act.  In this context, it is section 13(1) which involves sensitivity to groups identified according to their human rights.  Human rights, as I say, are quite contradictory, in essence, to Charter rights.

         The only requirement for a person to qualify for rights under section 2(b) is that they be a person.  To qualify for rights under section 13(1) you have to be a member of a discrete group.  In other words, your qualifications for human rights are collectivist qualifications.  It is because you are part of a collective defined by the legislation that you have these rights.  Otherwise, you don't qualify.

         If I were simply to have a complainant objecting to denial of their free expression rights or their equality rights under the Charter, they would not be here.  They would not have a right to be here.  They would not have a prima facie case; they would not get this far.

         The Human Rights Commission has made an investigation and done all that is required under the Act and determined that there has been a breach in their view of human rights, section 13(1), being the criterion of a collectivist definition.  It is a definition based on characteristics identified as group characteristics.

         THE CHAIRPERSON:  The interface between human rights legislation and the Charter is a legal issue, is it not?  We don't have to say in any piece of legislation that it is subject to the  Charter.  The law with respect to the Charter operates as part of the Constitution.  You don't have to, in every piece of legislation, say, "Oh, but this is all subject to the Charter."  It follows by operation of law.

         MR. CHRISTIE:  It does; I agree.

         If it were the case that persons appointed as members of the Tribunal must have experience in law, I would have no objection, or expertise in law or interest in law or sensitivity to law.  But they have all those characteristics in relation to a particular kind of law and a particular kind of right.

         I am not objecting or saying in any way that Charter rights don't apply.  I am saying that, indeed, the very reason that this argument, at least to my mind, is persuasive is that Charter rights do apply and there is a balancing requirement that eventually will have to take place if my arguments have some merit in relation to section 2(b), for instance.

         THE CHAIRPERSON:  Obviously, a balance is struck.

         MR. CHRISTIE:  In any situation of balance it is totally inappropriate to have the decider of fact appointed under a criterion whereby their experience, expertise, interest and sensitivity is to one side of the balance.  It is a ridiculous provision.  It was a mistaken provision.

         THE CHAIRPERSON:  Maybe it is superfluous.

         MR. CHRISTIE:  Unfortunately, we can't know that.  It might very well be superfluous.

         THE CHAIRPERSON:  As a matter of interpretation, it might be superfluous; I don't know.

         MR. CHRISTIE:  We are in the unfortunate position of not being aware that it is superfluous.  We are aware that it is legislation and a criterion for appointment.  It is not necessarily an indication of an actual bias; we don't know that.  We don't know anything about the appointment process, as to why it is made or who is selected or how anyone is selected.

         When we are told in the legislation itself that, as a criterion of appointment, the member must have experience in these particular areas in relation to the specific right of human rights, we are taking the position that that is in contrast to and in conflict with and has to be balanced with Charter rights under the Charter. 

         Unfortunately, these drafters, it seems to me, realized for the first time that the Human Rights Tribunal was to be cut free from the Human  Rights Commission.  I realize that you have dealt with the Bell case and all that, but the fact of the matter is that they have written this legislation in response to that because they don't want the problem to continue.  Much as we were assured that it would all be resolved by the Court of Appeal by now, I don't know that it has, but be that as it may.

         The drafters decided:  Now that the Tribunal is no longer under the Commission's control, we have to have something that makes them uniquely sensitive.  It was a foolish move to draft it in such a way.  The connection is now no longer covert; it is now overt.  They are not satisfied with trusting you just to apply the law and be objective, as you ought to be; they want to make sure that you have a specific sensitivity, so they draft it right in the law.

         MEMBER DEVINS:  Is it the fact that it is required by the statute that creates the institutional bias or is it simply the presence of those features?  It is not uncommon in administrative tribunals; in fact, panel members or adjudicators are chosen because of their familiarity or expertise in the area.  That was the whole reason for administrative tribunals in the first place.

         In this case, is it a fact that it has been prescribed in the legislation that creates the problem?

         MR. CHRISTIE:  We have always known, or perhaps suspected, that administrative tribunal members are appointed because they have a connection

‑‑ at least, from our perspective it looks like they have a connection ‑‑ and long-standing sympathy with the idea of human rights.  That is fine.  We have no way of proving or disproving that.  We have to live with our own paranoid suspicions in that regard.

         The fact of the matter is that, when they write it right in the legislation, we are not guessing any more.  It is true, for example, that members of the Transport Safety Board are often people in the aeronautics industry.  They have had long-standing experience, some as pilots, some as airline operators.  I know many who were appointed because they had experience in the north, and accidents happen in the north.  Of course, it is necessary for administrative tribunals to have experience, but they can have a diversity of experience.

         At the issue of administration of this Act from a diversity of perspective ‑‑ for instance, that is why they have lay members of the Benchers.  They don't just want a bunch of lawyers deciding on whether lawyers did right or wrong.  At least now there is more and more trend, I gather, at least in British Columbia that I know of, to have lay members appointed as Benchers.

         THE CHAIRPERSON:  I suspect that in that very Act, as I suspect there is in a legion of other neighbouring Acts, that the tribunal or the administrative body has to direct its mind to the public interest.  Would your argument not apply there as well?  If they were to direct their mind to the public interest, it is contrary to the Charter which is personal to individuals.  Isn't there the same contradiction or dichotomy that you seek to put on this particular legislation?

         MR. CHRISTIE:  If I understand that position, sir, it is that the public interest would be contrary to Charter interest.  I don't see that as a dichotomy.  The Charter interest, after all, is part of the public interest.  Public interest is broad enough to include the Charter rights.  Not only are we members of groups, such as the Law Society, transport community or whatever; we are also citizens.  The public interest can encompass the subject of Charter rights.

         THE CHAIRPERSON:  Human rights is also a public policy and would not be contradictory to Charter rights.

         MR. CHRISTIE:  It is in this respect, that Charter rights are individual and human rights are collective.  It is only the respondent in any human rights case who will be in the position of relying on the Charter of Rights inherently.  The human rights legislation, with its collectivist definition, is seeking to, and frequently does, supersede the Charter and the individual right.

         They are in conflict.  I think many times the Supreme Court has seen the contradiction between individual rights under the Charter and collective rights under the Human Rights Act, and the dichotomy has been resolved, for instance in the Taylor case, in favour of collective rights.

         MEMBER DEVINS:  Mr. Christie, you raise a number of novel points.

         Have there not been, in fact, cases in which complainants have relied on equality rights, for example, to expand the jurisdiction of the Act so that, in fact, it has been relied on by both complainants and respondents?

         MR. CHRISTIE:  You say complainants have relied on equality rights?

         MEMBER DEVINS:  Yes.

         MR. CHRISTIE:  Yes, but not respondents.  I say that respondents are the only people who will ever need to plead and be able to rely ‑‑

         MEMBER DEVINS:  On equality rights under the Charter.

         MR. CHRISTIE:  Yes, I can see complainants expanding the definitions under section 13(1) by equality rights.  That is what has been done ‑‑

         MEMBER DEVINS:  But there are only certain provisions of the Charter that you say will be relied upon by respondents and not complainants.

         MR. CHRISTIE:  I see, I apologize.  The equality rights have expanded the definition under section 13(1) to include sexual orientation in the McAleer case, yes.  But that is the only provision of the Charter, and it is a provision that expands human rights; it is not a provision that limits human rights.

         The sensitive body, the tribunal which is sensitive to human rights, is going to be more sensitive to the expansion of human rights than they are to the retraction of human rights.  Sensitivity involves sympathy, in our understanding of the word.  Sensitivity involves favourable treatment, and "interest in" means interest in a process ‑‑ not in a negative but in a proactive sense.

         MEMBER DEVINS:  That is the point I am having some difficulty with.  You appear to be using the phrase "human rights" not as denoting a subject matter area of expertise but, rather, as pro-complainant.

         MR. CHRISTIE:  Yes.

         MEMBER DEVINS:  I am having some difficulty following why that necessarily is so.  For example, there may well be counsel who have represented many, many respondents and have been active in representing those individuals, who might be appointed to this Tribunal as somebody who has expertise in the area, et cetera.

         MR. CHRISTIE:  They would not have the sensitivity that would be necessary or the interest in, if their opposition was such that they valued the Charter above the concept of human rights.  They are definitely in direct contradiction, expressly in the area of freedom of expression, exactly in the area of 13(1).  There is a direct contradiction between freedom of expression under 2(b) of the Charter and section 13(1).

         MEMBER DEVINS:  Isn't that a choice that the legislators have made?

         MR. CHRISTIE:  Yes, it is a choice the legislators have made, and they have made, in my submission, a grave mistake.  Where they used to leave it simply unspoken, they thought they needed another hook to make sure that nobody would be appointed who might be sensitive to the Charter more than they were to human rights.  They made it explicitly necessary to avoid that.

         These brilliant drafters wanted to make sure that the Tribunal would not stray from its obligation to human rights, and human rights in a positive sense ‑‑ that is, expansion of it, the support of it.

         Of course, right here we have the clearest demonstration.  Who is representing the complainants?  The Human Rights Commission plus all the Intervenants.  What is the Respondent relying on?  He is relying on the Charter rights.

         There is no method of balancing, except that the Tribunal makes the balance.  If the Tribunal has experience in human rights, expertise in human rights, interest in human rights and sensitivity to human rights, there is no reason for us to believe that they are going to be equally sensitive and experienced or interested in Charter rights.  Logically, right here and now, you clearly can understand our position.

         That is essentially the problem.  What was formerly merely implied is now expressed and, by definition, I say they have created a category of persons, a Human Rights Tribunal. that is sympathetic to one side of the argument.

         The other part of the argument is that this Tribunal is appointed under the old Act and this Tribunal operates pursuant to legislation that preceded this provision ‑‑ as you mentioned in your earlier judgment, pursuant to that and not affected by the new provisions because you continue in your old capacity.  There is no question that the transition provisions make that possible, but unfortunately that does not deal with the state of mind which is inherently required under section 48.1(2).  Unfortunately, that does not alleviate the legitimate concerns of the Respondent because your own appointments were pursuant to that Act and those provisions.

         I say that it really would not have mattered whether section 48.1(2) had been a requirement for appointment to the Senate while you were sitting on this Tribunal.  It would not have made any difference.  If you are appointed to a body whose criterion of appointment is sensitivity to the very arguments of the complainant in the case, then whether that was appointment to the ongoing nature of the Human Rights Tribunal and to subsequent hearings or to The Senate of Canada, it would not have made any difference.  The argument would have been equally valid.  You have met a criterion of appointment for some reason that we don't know, and really we have no way of knowing.

         Of course, we have no right to know and no way of knowing.  We have to face the legislation as it is.  When we faced it in circumstances where the Human Rights Commission paid the salaries of the Tribunal, somebody thought that was improper, and a court agreed for the moment, and that is fine.  To overcome that, they have legislated a predisposition of sensitivity to human rights which, in our submission, may sound just fine to some people.  When there is no conflict with Charter rights, there is no problem.

         If human rights applied in such a way that the Human Rights Act, for instance, included provisions that the Tribunal in the course of assessing human rights had to consider the human rights of the respondent and had to weigh the human rights of the respondent against the human rights of the complainant, then I would have no complaint.  But it doesn't legislate that.

         THE CHAIRPERSON:  What should the legislation have said?  Should it have said nothing, or should it have said that the Tribunal members should be ambivalent on the issue of human rights?  Anyone appointed to the Tribunal has to recognize what the scheme of the legislation is and the purpose of the legislation.  It is about human rights and balancing those rights with all other rights that are conferred on an individual under the Charter or any other legislation.  That is what the exercise is about, is it not?

         What mandates some sort of a bias implanted into the minds of panel members by those words in the legislation?  I have difficulty understanding how that creates a bias.

         MR. CHRISTIE:  There were several questions there.  Let me answer first this way.

         You asked me:  What should they have put into the legislation ‑‑ nothing?  Tentatively, persons appointed as members of the Tribunal must have experience in law and fundamental justice and natural justice, but that goes without saying.  People appointed to the Bench are not given a definition of their job.  They are appointed by virtue of the fact that it is deemed by whoever appoints them that they do have this criterion.  The only criterion I know of for appointing a judge is 10 years' experience at the bar.

         The appointment procedure which we are required to accept is that the government or somebody in their wisdom, the Prime Minister probably, appoints people on recommendation of the local bars who have the expertise that the law requires.  They don't define the expertise in such a way. 

         It is a bizarre legislation provision that defines the judicial qualities in such a way as to emphasize sensitivity to the very thing that is in dispute on one side.  There is no provision like this in any of the appointment procedures under the Judges Act, provincial or federal.  Any of the administrative tribunals that I know of don't say "sensitivity to", as I said at the beginning, lawyers' rights.

         Of course, it is deemed by virtue of your appointment that you have experience in human rights or that you know what it is, but it does not mean that you would have interest in them.  Interest implies greater than neutral commitment to.  It implies a positive interest.  If it was simply to have the interest that one has in fundamental justice, they don't have to say that.  They don't have to put that as opposed to something else, but they did.

         It is an emphasis and requirement that has clearly defined an inherent bias in the Tribunal; it should never have been included.  Really, what it demonstrates ‑‑ and I submit that this is the case ‑‑ is the desire on the part of the legislators to create a political tribunal that has a favouritism that can always be counted on to do what the courts would not do ‑‑ that is, punish respondents.  "Punish" is the wrong choice of words: "correct" is the appropriate definition, but it always has the effect.  I know people who have gone to jail because of Human Rights Tribunal rulings.  "Punishment" is sometimes not an inappropriate term because the remedy is worse than the disease, one might argue.

         There is absolutely no requirement of objectivity.  It is my submission that this provision excludes objectivity.  It excludes the necessary judicial temperament which would say, "We are not here just to apply human rights; we are here to consider Charter rights.  We are here to consider maybe the Bill of Rights.  We are here also to consider natural justice and fundamental justice.  We don't need to be told." 

         If I were in your position, I would be a little bit put off by the suggestion that the legislature needs to tell me how to do my job.  If they appoint you with the discretion that is inherent by virtue of the appointment, they should not have to tell you what your sensitivity should be.  That is telling you to favour one side.

         Let's put it this way.  In subsequent tribunals ‑‑ and I think the appointment is longer than it used to be; I don't know whether it is five years or three years.  If someone wanted to make a career out of being on a tribunal and it was determined that over the course of that time they did not have the appropriate sensitivity to human rights

‑‑ and we all know what "sensitivity" means.  Sensitivity training is a function of certain forms of psychology that makes one very receptive, in this case, to human rights.  It breaks down resistance to other points of view.  It is designed to create a state of mind.  Sensitivity is a state of mind.  It is a state of mind involving receptivity to a concept.  It destroys any resistance to a concept.

         Sensitivity to human rights, if it is to be invoked as a criterion, might very well be in the mind of anyone in your position in future who is looking at the possibility of having to discontinue their actions on the Tribunal if they are not sensitive enough.  If the criterion is applied to reappointment, how would you feel?  How would I feel?  How would anybody feel?  You are sitting there saying, "I am told this is what I have to have, expertise, interest in and sensitivity to human rights and experience in it.  I have certainly had experience, but maybe my sensitivity is slipping if I find myself sympathizing with Charter rights.  If I say that Charter rights supersede this aspect of human rights, am I sensitive enough to human rights?"

         I can imagine the thought process that has to go on if one is being sensitive to one's responsibilities, as one has to be in a position of authority, assuming one wishes to continue in that position. 

         Therefore, it is clearly obvious that the drafters created, out of a desire to add another lever to the power base they wanted to establish, an expansion of human rights into basically a trump for Charter rights, which it has become over time.  It has become a method of defeating Charter rights.  Where they would not be defeated under the Criminal Code, we defeat them under human rights legislation.

         If that is to be treated objectively, one would not be meeting the criterion that is set out in section 48.1(2).


         Thank you very much.  Those are my submissions.

         THE CHAIRPERSON:  Mr. Rosen...?

         MR. ROSEN:  Mr. Fromm.

         THE CHAIRPERSON:  Sorry.  Mr. Fromm, you follow Mr. Christie.  If I don't see you or recognize you, let me know.  I don't want to get ourselves into  a situation where you have not been called on.

         I don't address each counsel on every occasion.  They know when to stand up and when to get my attention if they want it.

         Please proceed.

ARGUMENT ON BEHALF OF CANADIAN ASSOCIATION FOR

FREE EXPRESSION INC.


         MR. FROMM:  In general, Mr. Chairman, I adopt the submissions of Mr. Christie.

         I submit that the argument really hinges on the word "sensitivity" in section 48.1(2) of the Act.  In considering appointments to the Tribunal, individuals must have expertise, experience, interest in and sensitivity to human rights.  Sensitivity to human rights would indicate a predilection or a particular bias toward human rights.

         In our submission, there is a fundamental conflict in many of these cases, especially in this case, between the Charter rights and human rights.  As outlined in the Canadian Human Rights Act, human rights are really group rights which shelter members of designated or privileged groups from discrimination.

         The Charter rights are rights that accrue to every person by dint of being a citizen or even a landed immigrant in this country.  These Charter rights are legal or perhaps even deeper.  They are fundamental rights that accrue to you just by being a human being.

         We have heard from Mr. Freiman on numerous occasions that this is not about freedom of expression, that freedom of expression has no role here.  I think that is very telling.  It has no role because, from the point of view of the human rights argument, the only thing that must be considered is whether or not the feelings of members of a designated or protected or privileged group have been seriously offended.  That is what it is all about.  Freedom of expression does not apply.

         If this were just an argument between one side and another, that would be fair enough.  However, according to the appointment, members of the Tribunal must have a sensitivity to human rights.  That, in our submission, is a bias toward one side.

         Years ago, when Human Rights Commissions were first created on a provincial basis, the rights protected were basically the rights not to be discriminated against in terms of employment, in terms of housing and on a limited number of criteria ‑‑ race, sex, colour, and so on.  Over the years, though, probably as a result of internal pressures within the human rights industry, as these types of discrimination become rarer and rarer, one has to justify one's job.  So there has been tremendous pressure within the human rights industry and from groups who benefit from it to expand these rights.

         These expansions have often been to the detriment of Charter rights.  For instance, a couple of years ago the British Columbia ‑‑

         MEMBER DEVINS;  But haven't those changes been legislative changes?

         MR. FROMM:  Yes.

         MEMBER DEVINS:  So they have been changes enacted by a duly elected legislature or Parliament, whichever it might be.

         MR. FROMM:  Indeed, but ‑‑

         MEMBER DEVINS:  I am just trying to understand where you are going in terms of being representative of a particular perspective.

         MR. FROMM:  I am trying to outline the ongoing conflict between group rights or privileges and Charter rights, particularly freedom of expression.

         A couple of years ago in a piece of legislation in British Columbia called Bill 33, which was amendments to the British Columbia Human Rights Act, it was argued that a provision not very dissimilar to section 13(1) was necessary to govern publications.  One of the government members argued at the time that this was necessary because the courts don't always do what we want them to do.  It was seen by the people who have a bias toward what is called human rights in terms of the Human Rights Act that the courts could not always be counted on to suppress Charter rights, in this case freedom of expression.

         Moving along, in the last couple of years we have seen cases in Ontario and in New Brunswick which have been decided and in Saskatchewan and in British Columbia which have not yet been decided, where there have been complaints against mayors for failing to proclaim either Gay Pride Day or Gay Pride Week.  In the case of the Mayor of London, Ontario and the Mayor of Fredericton, New Brunswick, the argument was made by the respondent, "I cannot do this because I do not believe in it.  You are forcing me to say something I don't believe in," or in the case of the Mayor of Hamilton, "You are forcing me to say something I don't think our community would approve of."

         In the cases that have been decided here in   Ontario and in New Brunswick, it was decided by a Human Rights Tribunal that the rights to freedom of expression would have to take second place to the argued freedom from discrimination.

         What I am submitting is that there is a conflict between the group rights that are championed in the Human Rights Act and the larger individual rights that are championed in the Charter.

         MEMBER DEVINS:  Haven't there also been boards of inquiry decisions, in particular out of B.C., where in fact Charter rights were applied?  Charter rights were applied to circumscribe a hate message right that had just been enacted in the B.C. Code.

         MR. FROMM:  I think Mr. Christie would be more the expert ‑‑

         MEMBER DEVINS:  Fair enough, but my understanding is that there have been cases ‑‑ and the Collins case, in fact ‑‑ where it was Charter rights and the Charter that was applied so as to interpret the Human Rights Code in a way that did not offend the Charter, which seems to go a little bit against your argument.

         MR. FROMM:  If that is a fair description of the case, you may well have a point there. 

         However, we are looking here at the terms of appointment.  The terms of appointment, considering the fact of the conflict between these groups rights which are not open to everybody and Charter rights, which are, the wording of the appointment would seem to suggest a leaning toward or a bias toward one side, which certainly creates on the part of the respondent a reasonable apprehension of bias.

         I am informed that in the appointment of a one-person tribunal in British Columbia, the criteria did not require her to be sensitive to human rights.  I suppose the only criterion was to have the confidence of the Lieutenant Governor.

         THE CHAIRPERSON:  The wording of the section that we are speaking of is really directed to a certain expertise.  We have to keep in mind that the appointments to the Human Rights Tribunal are not restricted to persons having legal qualifications; they are not restricted to lawyers.  Lay persons can be appointed to the Tribunal.

         Therefore, is the wording not consistent with signalling a certain amount of expertise or knowledge in the field of human rights, since they are there to determine issues arising from that legislation?

         MR. FROMM:  If that were the intention, Mr. Chairman, the wording seems extremely lame.  If what they wanted was that somebody be knowledgeable of the Human Rights Act or knowledgeable of some of the case law or precedents, perhaps that could have been stated ‑‑ simply "knowledgeable of the law in this area."  But that is not the wording.  The wording talks about sensitivity to human rights, which in the context here refers to the group rights in the Canadian Human Rights Act rather than the larger individual rights.

         There seems further prejudice from the fact that the group rights, so-called human rights, are not equally open to everybody.  For instance, had the Zundelsite attacked, let us say, the Liberal or Conservative or New Democratic Party and said that, if not all members, at least some of the leading lights were involved in a con job leading to high taxes to fleece the Canadian taxpayers for the purposes of making themselves rich through all manner of patronage appointments and so on and that this was to the detriment of Canadians, et cetera, no member of the Conservative Party or Liberal Party or NDP, as the case might be, would have a cause of action because political opinion is not protected.  It is not one of the human rights.  The Zundelsite or some other site could spread all manner of extreme or overblown opinions about a political group, and members of that group would have no comeback before a Human Rights Tribunal.

         However, every single Canadian human being has the Charter rights ‑‑ the right to freedom of speech, to freedom of expression, to freedom of assembly, to freedom of the press, et cetera. 

         In situations like this, where the terms of appointment point toward requiring members of the Tribunal to have a sensitivity, it really does seem that the legislation wants to stack the odds against the respondent.

         It has sometimes been argued that perhaps a lower threshold is appropriate here, because nobody would go to jail, et cetera.  I would suggest, though, that in terms of what the Human Rights Commission is asking for, there are very severe restrictions on the individual rights of the Respondent.  Should it be found that a site that is in another country, run by another person, should somehow be the responsibility of the Respondent and should the remedy sought by the Commission be imposed, there would be very severe restrictions on his individual rights and perhaps the individual rights of other persons to freedom of expression or perhaps to freedom of the press.

         I point in conclusion to the decision in the case of the public inquiry into the behaviour of the Royal Canadian Mounted Police in the APEC matter in British Columbia, when a member of the Tribunal was reported to have indicated that he thought the Mounties over-reacted.  That was enough for him to resign and for a superior court to stay the proceedings.

         THE CHAIRPERSON:  I am not sure that was the reason for his resignation, but nevertheless ‑‑

         MR. FROMM:  That is not to say that the individual in question might not, on hearing the evidence, have come to a different conclusion.  He did not say he was firmly of the opinion that the Mounties were absolutely in the wrong, but there was in that case a previously expressed opinion and a reasonable apprehension of bias, and there has been a stay in the proceedings.

         Here there is no reflection on any opinion expressed by the members of the Tribunal, but the very appointment seems to indicate a prejudice to one side, a prejudice in favour of the group rights as opposed to the individual rights of the Respondent.

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

ARGUMENT ON BEHALF OF THE CANADIAN HUMAN RIGHTS COMMISSION


         MR. TAYLOR:  You have the written materials from the Commission.  It is clearly our position that section 48.1(2) does not apply to you, and I think your comments this morning on the other motion indicate that you understand this, and I won't take you through it.

         With this new legislation there has been a lot of confusion with some of the language.  I think the language turns, as you pointed out in your ruling, on appointment to the Human Rights Tribunal Panel which is one animal and then appointment to the Tribunal sitting here which is another thing.

         In the new legislation the appointments are made to an entirely new animal called the Human Rights Tribunal and, once you are on that, you are on that.  Those qualifications apply to that new appointment.  They clearly do not apply to you because you were appointed at a time when there were no qualifications.

         MEMBER DEVINS:  Mr. Taylor, do you plan on dealing at some point with Mr. Christie's argument that our very appointment gives rise at that point in time, by virtue of our having met those qualifications, to a reasonable apprehension of bias?

         MR. TAYLOR:  I will.

         THE CHAIRPERSON:  Just in case.

         MR. TAYLOR:  Just in case.

         I want to point out as well that the transition provisions allow for the permanent survival of the previous enactment which is permanent only in the temporal sense that eventually we will not need those transitions because the number of appointments will run out.

         Clearly, the legislature thought this through.  They recognized a potential for problems and, as you pointed out this morning, Mr. Chairman, clearly they made those provisions so that there would be continuity.  This enactment clearly is facilitated by those special provisions to maintain this Tribunal and any others that were sitting.

         To respond to Mr. Christie's paranoid suspicions about the Commission owning the referees, perhaps to Mr. Christie, in the times we have been in court together, the fact that the Commission wins may fuel those suspicions, but it is not the case.  I think, if we owned the referees, we would win every time and, unfortunately, that is not true.

         To understand rights and how they work, you have to look at the Act and its purpose.  The language that has been used ‑‑ individual rights and group rights ‑‑ and misused as well, will find some meaning in the purpose of the Act.  Mr. Christie does make a lot of individual rights under the Charter.  You will see in the purpose of the Act "all individuals should have an equal opportunity" et cetera.  This applies to all individuals.  All individuals should be free to make for themselves the choices that will lead to their determination of the good life without discrimination.

         The "without discrimination" part is the public policy of Canada; the public policy is one of non-discrimination.

         The purpose of the Act sets out that all people have equal opportunity to be free to pursue their version of the good life without a barrier being placed and there can't be a barrier because of a discriminatory practice based on these things ‑‑ race, ethnic origin, et cetera.  Perhaps the majority of Canadians do not have these barriers placed; they may not need the protection of the Act because they do not have barriers placed because of disability.  It is not a specialized group that is coming out of this; it is a recognition of difference.

         Mr. Christie also wants to find in the Act somewhere a definition of human rights, and there is not such a thing.  The contest, if you will, between individual rights and what are being called here group rights is a false contest.  Mr. Zundel's rights are being protected here as much as the Complainants' rights.  The Commission, mandated by the statute, is presenting material for your inquiry in the public interest.

         The idea that that section, sensitivity to human rights, is going to make you decide in our favour is flat out wrong.  There is no qualification examination for you that I know of; the Act is silent on how you are chosen other than by that qualification.  As I said in my written submission ‑‑

         THE CHAIRPERSON:  There is no qualification, but what is the interpretation?  What meaning can you ascribe to those words, statutory interpretation?  It was not in the old Act.  What significance is there in connection with the interpretation of what the policy of the Act is by the addition of those words?

         Generally, because words put in a statute are not necessarily always crystalline in their meaning, one has to search for the purposes of the wording of a statute.  Sometimes they are merely surplus; sometimes the significance of the words measured against the whole scheme of the legislation is benign.

         What do you say those words are intended to mean?

         MR. TAYLOR:  I think, to maintain the integrity of the Act and in keeping with the establishment of what is now, in short form, a permanent Tribunal, the permanence of the Tribunal is dependent upon expertise, and we are clearly moving away from an ad hoc panel consisting of laypersons as well as lawyers to a more permanent situation, the more permanent situation to facilitate the smooth completion of this complaints process.  As a permanent body, the expertise is necessary to make these things run smoothly.

         I think the other parts of the Act that fit into that are that the Chairperson of the Tribunal can appoint a single member.  I think that is what we will see happening, because the single members will be sufficiently expert to be able to run these things through in much the same way as the Canada Labour Board.

         That is what I see in that section, to maintain the integrity of the Act and to make it quicker.  I think it is clear that these amendments, and even the previous ones, came as a result of a recognition by Parliament that things were not working as smoothly as they should have.  I think they were not working as smoothly as they should have because in the beginning, quite frankly, I think the legislature passed this type of law thinking that it would not be needed in 20 years.  The exact opposite has happened, in fact.  The jurisprudence has grown and the cases have become much more complicated.  I think at the beginning they envisaged a two- or three-day hearing.

         THE CHAIRPERSON:  Mr. Taylor, we are going to rise at 12:30 today for certain things that the Tribunal has to look after, so we will take our morning break now.

‑‑- Short Recess at 11:15 a.m.

‑‑- Upon resuming at 11:35 a.m.

         THE CHAIRPERSON:  Before you continue, Mr. Taylor, my colleague Devins heard me say "May 25, 1997" as to the ruling on the relevance of truth.  It should be "1998."

         MR. TAYLOR:  In our written submissions you can see that the Commission takes the position that the new section 48.1(2) does not create a reasonable apprehension of bias.  I don't want to go through all of that again, but just note the general test for bias from the National Energy Board case which you had before you in the other bias motion.

         I think it is important, if we are talking about the integrity of the new Act and the determination of sensitivity to, interest in, experience, et cetera, that these Tribunals are directed to interpret the Act broadly to fulfil its purpose.  In understanding that the section "with experience, expertise, interest in and sensitivity to" governs the whole panoply of human rights, there is nothing in the Act to suggest that this does not encompass the right to freedom of expression.

         Again, setting out these areas of subject matter in no way dictates what your beliefs should be.  It is your conduct that is important.  From the Newfoundland Telephone case, it is clear that the Supreme Court of Canada does not see a problem with expert tribunals.  As Member Devins pointed out earlier, the whole purpose of administrative tribunals is to have expertise in these areas.

         As Justice Cory wrote in the Newfoundland Telephone case, the Court does not see a problem with certain people on boards having certain views.  He expressed confidence that these people who are sitting will "strive for fairness and a just result."

         Also, it is clear from cases that you have had before you as well, Ringrose and French, in the discussion of the other bias motion, that the reasonable apprehension of bias cannot be entertained when the statute provides some overlapping.  If it is implicitly accepted by the legislature, then there cannot be any bias, and that is what those cases stand for.

         Again, in the way that the amendments and the new Act are drafted, it is pretty clear that Parliament wanted to move to a permanent Tribunal, for reasons of efficiency, and an expert Tribunal, again to aid in the efficiency.  When they passed the amendment mandating that the members of the new Tribunal have this expertise, they were doing it in conjunction with all the other parts of the Act, so it hangs together.  They clearly thought it through; it is not something that they left dangling.

         I think it is also clear in some of the other changes that they were trying to fold in together efficiency and the fact that the Chairperson of the Tribunal will appoint a single member when cases are not that difficult or complicated, hopefully to resolve them quickly.

         I just want to go back and cover one or two things that Mr. Christie said.

         It is almost ridiculous to think that you would be taken for sensitivity training.  There always has been, since the 1989 amendments, an arm's-length relationship except in certain procedural payment things which have now been solved.  The Commission and the Tribunal are separate, distinct entities, and there is always a big separation.  There is no way the Commission gets a chance to pick the Tribunal.  We can't shop around for a good one.  We don't have any control like that.  It is just out of the question that the Commission could decide not to show up on day one and that we would have to go to a new tribunal.  We can't do that.  It is not like judge shopping, which can be accomplished.

         The idea that we are of one mind on this is ridiculous.  As I said earlier, if we owned the referees, we would win all the games, and we unfortunately do not.

         Those are my submissions.


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

ARGUMENT ON BEHALF OF THE TORONTO MAYOR'S COMMITTEE

ON COMMUNITY AND RACE RELATIONS

         MR. EARLE:  I am handing up to you a copy of a Book of Authorities and also copies of the French and Ringrose cases which were just referred to by my friend Mr. Taylor.

         Mr. Chairman, I would ask that you accept my submissions as being not only on behalf of the Mayor's Committee but also on behalf of the other Complainants, Sabina Citron and the Canadian Holocaust Remembrance Association.  I have agreed to pinch hit for them today.

         My first submission to you, Mr. Chairman, is that I obviously adopt the submissions of the Commission with respect to their position on the application of the amendments to the Tribunal as well as with respect to their position on the reasonable apprehension of bias.

         In the event that you do not accept the Commission's submission that the application of the amendments does not apply to you and, therefore, the Respondent's argument does not apply, we would echo the Commission in saying that no reasonable apprehension of bias exists because there is no reason that section 48.1(2) should have any effect on the Tribunal Members' obligation to strive for fairness and a just result.

         The new issue that I want to address with you today, Mr. Chairman, is the issue of the doctrine of necessity in the event that you do find that there is reasonable apprehension of bias.  I would like to refer you to tab 2 of the Book of Authorities that I have put before you where you find the P.E.I. Judges Reference, which has been discussed earlier this year in argument.  I direct you to page 11.  You find there the test that is set out in the decision.

         At the bottom of the first column it states:

"Although there is a general rule that a judge who is not impartial is disqualified from hearing a case, there is an exception to this rule that allows a judge who would otherwise be disqualified to hear the case nonetheless, if there is no impartial judge who can take his or her place.  The law recognizes that in some situations a judge who is not impartial and independent is preferable to no judge at all."

         It is our submission, Mr. Chairman, that this doctrine would apply in the event that you accept Mr. Christie's submissions to you that there is no tribunal, past, present or future, which can escape from reasonable apprehension of bias arising from the operation of section 48.1(2).

         The decision goes on to discuss the principles to be applied to the scope of the rule.  I am making the assumption that you have a copy of the written submissions of the Complainant Sabina Citron.  If I could direct you to page 3 of that, paragraph 9 states:

  "The doctrine of necessity applies to administrative tribunals just as it does to courts.  It prevents the disqualification of an adjudicator on the basis of a reasonable apprehension of bias where:

(a)  the cause of the disqualification is not due to a voluntary act of the adjudicator;

(b)  the disqualification would lead to an inability to discharge public functions leading to a failure of justice; and

(c)  no positive substantial injustice would be occasioned by the operation of the doctrine."

         This is a synopsis of principles which can be found at page 13 of the P.E.I. Judges Reference.

         Going through those principles in order, Mr. Chairman, clearly the disqualification that is complained of here is not due to an involuntary act of the Tribunal; it is due to an act of government in amending the Act at this time.

         Turning to the second principle, it is the submission of the Respondent that this disqualification would apply to all tribunals.  It is, therefore, my submission that that would lead to an inability to discharge public functions, resulting in a failure of justice and the frustration of the intent of the statute.  This is not only a public problem in the sense that it renders all tribunals unable to hear and determine human rights complaints re serious issues of discrimination, but there is obviously also a private detriment here in the sense that the Toronto Mayor's Committee and Ms Citron, who have been involved at this point in a very lengthy hearing ‑‑ we are coming up our second-year anniversary soon ‑‑ would be deprived of the benefit and the effort that has gone into that hearing to date.

         THE CHAIRPERSON:  It would render the whole Act non-functional.

         MR. EARLE:  Yes, that is correct.

         Mr. Taylor has mentioned French and Ringrose, and I would also like to mention them here, to the extent that they make clear the importance that where the legislature has spoken or, in this case, Parliament has spoken with respect to the operation of an administrative tribunal, that direction should be respected by the court and that necessity requires that, where a reasonable apprehension of bias, in this case institutional bias, would result in a frustration of the statute, that should not occur.

         With respect to the last principle outlined in the case, "No positive substantial injustice would be occasioned by the operation of the doctrine," as clearly admitted by Mr. Christie in his submissions, the members of the Tribunal have not changed and, at least from his perspective, any inherent bias that you may have had has not changed.  In his submission, the statute has merely made explicit what was implicit before.

         In that case, I see no substantial injustice here in continuing with the Hearing.  There is no further prejudice to the Respondent in the event that you find that a reasonable apprehension of bias exists.

         The Respondent has fully participated in the Hearing to date which, as I mentioned, has been a very lengthy hearing, and it is my expectation that he will continue to do so.

         Those are my submissions, Mr. Chairman.

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

ARGUMENT ON BEHALF OF SIMON WIESENTHAL CENTER


         MR. ROSEN:  I take exception to what Mr. Christie says about the Act not being Charter-sensitive or the exercise of functions under the Act not being Charter-sensitive, including the appointment of Tribunal Members.

         In my respectful submission, one cannot bandy about the provisions of the Charter without remembering what the Supreme Court of Canada said in the De Couteau case, which is that the provisions of the Charter are equal; none is greater than the other.

         As it happens, the Act incorporates the provisions of equality recognized by the Charter and expands upon it for purposes of the Act to proscribe discrimination not only on the basis of race, national or ethnic origin, colour, religion and age, but also sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

         Persons appointed to the Human Rights Tribunal under the Act, in my respectful submission, not only must have experience now in human rights matters; they must also have some expertise in the area.  They must also have an interest in it, and the words "sensitivity to" do not mean a bias toward.  Rather, it is a sensitivity to the issues raised whenever an allegation of a violation of human rights is raised.

         For example, in this particular case, one of the things that you are going to have to decide is whether or not the Respondent merely exercised his constitutional right to freedom of expression in a manner that did not infringe other people's rights of equality, in particular other persons' rights not to be discriminated against.  Sensitivity, in my respectful submission, encompasses the spectrum of issues that arise in human rights, and it does not focus on a particular bias.

         By having expertise, experience, interest in and sensitivity to human rights issues, it also permits the members of this regulatory body the ability to understand how a person's conduct, a person who perhaps does not have those same experiences or sensitivity and so forth, might discriminate, or might not discriminate, as the case may be.  It is not just with respect to religion; it is with respect to all of the things under the Act.

         It is a difficult job for someone who has no experience to do.  For example, one has to deal with many aspects of a multicultural society where everyone is by the Charter deemed to be equal and to balance all of those interests.  In my respectful submission, it is not only well within the powers of Parliament to pass this sort of legislation; indeed, it is mandated.

         If you look at other sorts of tribunals, such as, for example, the Labour Relations Board, people who are appointed to those boards have not only experience and expertise and have a demonstrated interest in labour relations, but also sensitivity to what goes on in the work force.

         At the same time, for example, the Ontario Legislature recognized that lawyers do not have a corner on the market of issues relating to the interaction between lawyers and the public.  In disciplinary matters, in order to inject a certain degree of public sensitivity, they expanded the composition matter of the Benchers to allow for lay Benchers to bring that additional perspective, if you will, to the various tribunals that are mandated by the Law Society Act.

         In my respectful submission, there is nothing wrong with this provision.  In fact, I would respectfully submit that its very existence often inures to the benefit of respondents in most cases.

         Those are my submissions.

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

ARGUMENT ON BEHALF OF B'NAI BRITH


         MR. KURZ:  This very false dichotomy between the alleged group rights under the Human Rights Act and the individual rights under the Charter ‑‑ and I know that some discussion has already been raised with regard to section 15.  There is also section 27 rights that are multiculturalism rights under the Charter.  I am not aware of any case that has allowed for free-standing applications based on section 27, but at the same time section 27 is another interpretive guide that can be looked at in order to look at group rights under the Charter.

         Furthermore, it may well be argued that complainants have individual rights under the Charter that have to be dealt with by a Human Rights Commission.  It can be argued that there are section 7 rights that complainants have when they are before a Human Rights Tribunal.

         To assert simply that there is kind of dichotomy makes no sense.

         Second, Mr. Christie was saying, "I would raise no argument if all they required was a knowledge of the law and due process," or something like that.  That would lead, I suppose, to a different kind of bias because that would make all the members of the Tribunal necessarily lawyers.  Member Jain is no longer on the Tribunal for reasons that are unrelated to what we are discussing, but that would eliminate that kind of input as well.

         I don't have to repeat the arguments with regard to the fact that sensitivity is not bias, but it simply makes no sense to say that being sensitive to human rights in the broad sense ‑‑ and both sides can have human rights ‑‑ somehow or other it makes you biased.

         THE CHAIRPERSON:  Mr. Christie, please.

REPLY ON BEHALF OF THE RESPONDENT


         MR. CHRISTIE:  To begin with, I would like to suggest that Mr. Fromm's remarks to the effect that courts cannot always be counted on to do what we want them to is a classic example of exactly why Human Rights Tribunals should not be created as politically correct courts and they should not, in essence, be given the mandate that makes them politically correct courts or having specific interest in one side or the other of the debate.

         Member Devins mentioned the judgment of Nitya Ayer in relation to the Collins case in finding that the actual remarks did not cross the line.  I read that judgment.  First of all, I don't think it upholds any Charter right.  I think it specifies the description or identification of the provisions of section 7(1)(a) and (b) of the British Columbia Human Rights Act.  It reads them somewhat narrowly ‑‑

         MEMBER DEVINS:  Didn't she do that, Mr. Christie, precisely in response to freedom of expression rights set out in the Charter?

         MR. CHRISTIE:  Yes, but my concern is that she is not subject to a mandatory, statutory requirement of sensitivity to human rights.  The reason she may have come to her decision is that she had the capacity to view Charter rights as somehow equally important.

         MEMBER DEVINS:  Are you suggesting that had she, in fact, been able to be qualified under this section, she would have reached a different conclusion?

         MR. CHRISTIE:  She may very well have.  The fact of the matter is that she was not required to meet the qualifications of the Canadian Human Rights Act as of June and, therefore, Mr. Collins won.

         MEMBER DEVINS:  Not "therefore."

         MR. CHRISTIE:  Maybe not "therefore," but he did as a result.  If you can call losing $200,000 winning, he won, or his employer won.

         The Chairperson asked:  Does the wording of section 48.1(2) point to a specific expertise?  That question, in my submission, must be answered precisely as to what it says.  Mr. Kurz said that sensitivity does not mean bias.  What does it mean?  In my submission, there is no other logical conclusion than that it means a favourable disposition toward.  It does not merely require knowledgeability, but sensitivity to human rights.

         What is the accused before this Tribunal for?  He is alleged not to have been sensitive to the human rights of Jews.  Therefore, the very issue in question is sensitivity to the human rights of Jews.  If he had been as sensitive as this section now requires, he would not be subject to a complaint.  He is, in effect, accused of being insensitive to human rights, and you are mandated to be sensitive to human rights.  It seems to me that the conclusion is quite logical and flows very clearly from that.

         The subject of the APEC Inquiry was brought up by Mr. Fromm, and the remark was made that the Chair did not resign for reasons of one kind or another.  It is my submission that the accusation was that he was sensitive to the concerns of the protesters and insensitive to the concerns of the RCMP, to put it in blunt terms.  Therefore, he was disqualified.

         The very qualifications for this Tribunal now are ‑‑ and you have met those qualifications, by definition ‑‑ to be sensitive to the concerns of human rights.

         The argument was made by Mr. Taylor, first of all, that it does not apply because you are sitting as a Tribunal under the old provisions where no such criteria were met.  It might be argued that you are sitting with your old hats although you are appointed with new hats as well.  That may be so, but it doesn't change the heads that wear the hats.  It is the contents of the heads that wear the hats that have been defined by the provisions of the Act in the way they were.  You are the same people, whether you are appointed under the old provisions or the new.  The new criteria that you have met have defined your qualifications and made explicit what some people may have thought was implicit, but it certainly changed anything from a subjective perception to an objective reality.

         It is only when we have an objective reality that we can object to a reasonable apprehension of bias.  Just because we have what some people refer to as paranoid suspicions is no basis for concern, and it never, of course, would be raised on that basis.

         Although you were appointed under the old Act, having met the criteria of the new Act, the qualifications apply.

         The thrust of Mr. Taylor's argument, it seems to me, was that the legislature has thought this through and has mandated this.  The legislature thought the legislation through before the MacBain case, and it was determined by a court that it had thought it through in such a way that it created a reasonable apprehension of bias, and the legislation had to be changed.  So it was changed.

         The investigative process and the determination of a prima facie complaint was separated from the adjudication process, which took it one step closer to being impartial.  That was the first time the legislature had thought it through and had been wrong.

         The second time the legislature had thought it through and had been wrong was revealed in the judgment of Madam Justice McGillis in the Bell case.  It is interesting that in both cases the legislature realized it was wrong and changed the legislation.  As of June they reacted to the Bell case, and much earlier they reacted to the MacBain case.

         Of course, we were out of time for our objection to the Bell case, it was said, because we had gone along with the provisions as they had stood.  It is my submission that that argument cannot apply to this complaint because we brought these in the summer when there was no Tribunal, and the legislation changed after the Tribunal had finished sitting for the summer in 1998.  We brought them at the first opportunity, and they were put over to this time to deal with.

         Mr. Taylor also said that the legislation requires that persons be treated without discrimination.  Of course, individual rights are defined in the legislation in terms of group rights.  You have individual rights not to be discriminated against because you are a member of a group.  It does not provide any rights to persons who cannot be categorized into one of the protected classes.  Any concept of individual rights that is expressed in the Canadian Human Rights Act is defined by its own terms, based upon a group criterion.

         Mr. Taylor said, "We would win every case if we picked the adjudicators."  You don't have to pick the adjudicators any longer; they are picked, by definition, sympathetic.  As of June 30, we don't know how many cases they have lost ‑‑ I doubt very many since June 30.  The chances of losing them are much slimmer now.  If the sensitivity criterion is applied, then those like the Respondent here who are not sensitive to human rights of some group will definitely find themselves contrary to the sensitivities of the Panel who, by definition, have been selected with that existing sensitivity.

         THE CHAIRPERSON:  Does the admonition that I say Crowns should follow, that the Crown never wins and the Crown never loses ‑‑ is there an embedded bias in the way the Commission defends a case?  Do they win or lose?  We are talking about winning or losing.  I am not sure that there is a policy in the Commission that it wins or loses.  It is here to assist the Tribunal to come to a conclusion, I suppose.

         MR. CHRISTIE:  It is true that the Crown has, theoretically, the obligation to uphold the law regardless of favour or advantage or disadvantage to the accused. 

         The specific legislative scheme of the Canadian Human Rights Act does not cast the Commission merely in a neutral role.  It is to administer the Act, which is to uphold human rights as defined by the Act itself.  It has a more aggressive mandate, in my submission.  It is clear that my learned friend Mr. Taylor sees his position as winning and losing.  His own remarks were very clearly coloured with the remark, "We don't win every game."  I take that to mean that sometimes he loses.

         I don't know how many cases, if ever there has been a case, under section 13(1) the Human Rights Commission has lost.  I don't know of any.

         The fact that words are put in a statute does not lend them, after the Charter, any aura of legitimacy at all.  Parliament used to be incapable of making errors.  Parliament could do no wrong.  After the Charter, Parliament has obviously made many mistakes and continues to make mistakes.

         The existence of a statutory provision and the consequence of that provision being declared creative of a reasonable apprehension of bias could never be corrected.  There would be no MacBain case; there would be no Bell Canada case if the defence of necessity could always be invoked.  It would never change.  There would be no judgment ever possible that could not be defeated by the argument, "But, if you held this way ‑‑-".  There could be no tribunals at all.

         If the legislation had been enacted to say, as it does here, sensitivity to human rights and had defined it in those terms with the clear implication that we say exists in the words, it could never be rectified.  The courts could never interfere.  No one could ever change it.  Parliament would be supreme.

         Parliament was supreme before the Charter, but Parliament can be wrong.

         MEMBER DEVINS:  Mr. Christie, if you are not invoking Charter rights, can't the doctrine of necessity then apply?

         MR. CHRISTIE:  Fundamental justice under the Charter goes to the heart of the jurisdiction of this Panel.

         MEMBER DEVINS:  But that is what the doctrine of necessity deals with.  It deals with issues of fundamental justice and issues of bias and issues that go to jurisdiction.

         MR. CHRISTIE:  If we are dealing with the case of Prince Edward Island and the Provincial Court, that went to the issue of whether the legislation created a reasonable apprehension of bias.  It did not involve, in my submission, the principle that a reasonable apprehension of bias can have never any effect if it would invalidate a series of tribunals.  It was actually dealing with all the provincial courts of Quebec, Manitoba, Saskatchewan, Alberta and Prince Edward Island.

         Can it be said that the necessity to uphold the existing legal decisions of all those courts is comparable to the necessity of continuing a Canadian Human Rights Tribunal?  It is my submission that there is quite a difference between all the existing and previous judgments of the provincial courts on criminal matters in all those provinces and the continued existence of the Canadian Human Rights Tribunal.

         MEMBER DEVINS:  Is it your submission that the doctrine of necessity can never apply to Human Rights Tribunals?

         MR. CHRISTIE:  It is my submission that it should not apply to the Tribunals in these circumstances.  My submission is that, under these circumstances ‑‑

         MEMBER DEVINS:  What are the limitations of the circumstances?

         MR. CHRISTIE:  The circumstances are a legislative prescription that casts the Tribunal in terms of a predisposition to one side of the case.  If the legislature legislates that tribunals should be sensitive to the human rights as represented by the Human Rights Commission, then, in my submission, it would no more necessary, but it would be far more unnecessary, that they proceed than it would be that the legislature change the legislation.

         If the defence of necessity were invoked, for instance, in the Bell case, Madam Justice McGillis' decision would have no effect outside of that tribunal.  It had no effect on this Tribunal because we had not raised it in time.  The Newfoundland Telephone case was distinguished and you referred to the decision subsequent to MacBain.  That is not an argument that applies here, as I said, because we brought it at the first opportunity after the legislation changed.

         MEMBER DEVINS:  Are there any cases that suggest, as you have, that the doctrine of necessity does not apply to a statutorily-created bias that affects an entire tribunal?  I understood that that is precisely what French and Ringrose stood for and, similarly, that the general principle is set out in the Judges Reference, although I understand your point that it is arguably dealing with an area of greater    significance involving provincial courts.

         MR. CHRISTIE:  What I would like to do is finish my submissions and deal with that question after lunch, because it is an important question.

         THE CHAIRPERSON:  The doctrine of necessity?

         MR. CHRISTIE:  Yes.  Is that all right?

         THE CHAIRPERSON:  Go ahead.  We will see where you end up at 12:30.

         MR. CHRISTIE:  Thank you.

         Reference was made to the Canada Labour Board.  Its legislation does not mandate sensitivity by the tribunal members to workers' rights.  It would be inherently unfair if it did, and it would not continue to stand the tests of any scrutiny for either natural justice, fundamental justice under the Charter or a reasonable apprehension of bias.

         MEMBER DEVINS:  Mr. Christie, that actually struck me as an interesting analogy in that, as you are obviously aware, in arbitration cases or Labour Board cases you have people with expertise in the area of labour relations who come precisely from either the union side or management side.  What they are sensitive to is the collective bargaining regime.

         Absolutely, I think everybody recognizes that they come with a particular perspective, be it union or management.  They are not then disqualified from hearing cases because they bring that perspective.

         Isn't that analogous to the circumstance that you say is now set out in the statute?

         MR. CHRISTIE:  No, I think it is demonstrative of the difference.

         For example, I have argued Workers' Compensation cases.  Usually in a three-member panel there will be one from labour, one from management and one from somewhere else.  If each and every one of them were required by law to approach it from the point of view of sensitivity to workers' rights or if they were all appointed from union only, if it could be demonstrated as a fact that they came with that bias, it would be legitimate to raise it.

         However, when it is presupposed and established by the legislation that all members of the panel have the same perspective, it is not as if there is a possible balance.

         What you are contrasting is a statutorily-created frame of mind ‑‑ at least, I am alleging this ‑‑ with the realities of life where tribunals frequently come from various disciplines or points of view.  What I would call legislative discretion is such that, if they had not specified a predisposition in any members of the panel, then we must accept that the legislature has the power to make discretionary appointments and that they make them fairly.  Unless you have evidence to the contrary, the presumption is that they are fair, that they are impartial, that they are perhaps appointed from various perspectives, but that there is no inherent legislated or systemic bias.

         Generally, the way that this is accomplished, as you point out, is that Labour Boards and Workers' Compensation Boards come from the two sides of most arbitration issues, from management or union.

         Mr. Taylor said that the legislation has existed for 20 years and that they thought that would be sufficient.  There have been at least two instances where the legislation was wrong and, in fact, the legislation has expanded.  With the sensitivities that are inherent in this legislation, the Tribunal and its jurisdiction will keep expanding.  Of course, that is the objective of some people, but it is my submission that, in order for any adjudicative body to approach with apparent impartiality an issue raised before it, it has to have no inherent and legislated bias one way or the other.

         Mr. Taylor said that the Tribunal is directed to fulfil its purpose.  What is its purpose?  As we now know, it is to be sensitive to human rights.

         Mr. Taylor said that that is not necessarily exclusive of Charter rights.  The Canadian Human Rights Act, as it stands now, is Charter neutral and Charter silent.  It has absolutely no reference to the Charter.

         The New Brunswick Human Rights Act had a specific provision that said:  This Act is not to be interpreted in any way as to restrict freedom of speech.  There is nothing like that in the Canadian Human Rights Act.

         The reference to separation between the Tribunal and the Commission may be some sort of reference to the Bell case, but that is not the argument here.  It is that the Tribunal as established is predisposed to a sensitivity to human rights reflected by the Commission.  It is not because my learned friend has selected the panel in this or any other case.  It is simply that the legislature has defined the panel in a way that is inherently sympathetic to my learned friend Mr. Taylor's position.

         If I am not mistaken, the judgment of Madam Justice McGillis affected all tribunals subsequent to those which were already in progress and to which your ruling has applied.  Therefore, it is my submission that, if the argument were valid that no argument attacking jurisdiction can succeed if it disqualifies an entire panel or tribunal or adjudicative body, then there would be no effect to the McGillis decision at all on any future tribunal. 

         In my submission, there was, and the legislation has been changed.  With the exception of the provisions of qualification, it was changed in a direction to reflect the concerns expressed in the case that Madam Justice McGillis decided.

         A reasonable apprehension of bias would never be effective if necessity could always be called upon to defeat it.  If I understand the argument, an actual allegation of bias could succeed, but nothing in the nature of a systemic allegation of bias could ever succeed because it would affect all members of an adjudicative body.  That argument, in my submission, seen clearly as defeative and destructive of all arguments about systemic bias, would render systemic bias an impossible argument.

         Mr. Rosen's remarks implied that consideration of Charter values is actually subordinate to human rights values.  He said that constitutional rights must be interpreted in a manner that does not infringe other persons' rights not to be discriminated against.  With the last words, he has said that Charter rights are subject to human rights.

         That is his view, and he is entitled to advance it.  My problem is that, if he advances it to a body that is trained in and sensitive to human rights, there is no doubt about the outcome.  In my submission, each of the other submissions indicated that there is a balancing requirement, that you do have a difficult job of balancing the Charter with human rights provisions.

         If there is this problem, how can it reasonably be approached by those whose defined existence is based upon a presupposition of sensitivity to the human rights side of the argument?

         It was almost, in Mr. Rosen's submission, stated that because of De Couteau and the suggestions that all provisions of the Charter are equal, we should take the view that actually human rights supersede the Charter.  In my submission, the Charter is not equal to human rights legislation; the Charter is the supreme law of Canada.  It is not just subordinate to human rights ‑‑

         THE CHAIRPERSON:  Isn't that the answer to your argument that the Charter is supreme and how could anyone interpret the preamble in the appointment provision that we are discussing as infringing the entrenched rights of the Charter?

         MR. CHRISTIE:  Simply because there is a balancing that you will have to do.  In the balance, the thumb is on the scale, the thumb being that you have been appointed with a special sensitivity ‑‑ not an ordinary sensitivity to law which would involve both the Charter and human rights, but sensitivity ‑‑

         THE CHAIRPERSON:  The Charter rights, subject to proper application, trump every other legislated provision.

         MR. CHRISTIE:  That is an interesting proposition, and I agree that they should.  In my submission, the Charter is the supreme law.  But, when, as Member Devins pointed out, section 15 of the Charter involving equality rights comes into play, then one has the balancing of Charter rights against Charter rights.  Then suddenly you have the result that we had in Taylor.  When you balance a Charter right against a Charter right, it neutralizes the Charter and you have the human right still on that side, and legislation that favours human rights is our objective, and that is roughly what happened.

         Section 15 and even section 27 which Mr. Kurz referred to have been used to trump section 2(b) and it has succeeded in Taylor and has succeeded in every case that I am aware of under 13(1).

         Albeit the Charter is the supreme law of the land, when one finishes the endless debate about which section of the Charter supersedes the other, they tend to neutralize each other and sympathy to human rights will in the end prevail.

         This Tribunal is not required in any way to be sensitive to Charter rights at all.  No provision says you should be.

         THE CHAIRPERSON:  I thought that is what the Charter said.

         MR. CHRISTIE:  It may be what the Charter said, but it is not what your appointment says.  At the end of the day you will be confronted from arguments from all these sides about human rights and how important they are and how they must be viewed sensitively.  The Charter, such as it is, will be viewed as balanced against it, and in the balance will be this legislative authority that says that you have that required sensitivity.

         If I could say something about Ringrose after lunch, I would like to be able to do that.

         THE CHAIRPERSON:  Just on the doctrine of necessity?

         MR. CHRISTIE:  That's all.

         THE CHAIRPERSON:  All right.  We will resume at two o'clock.

‑‑- Luncheon Recess at 12:25 p.m.

‑‑- Upon resuming at 2:07 p.m.

         THE CHAIRPERSON:  Mr. Christie, please.

         MR. CHRISTIE:  In my submission, Ringrose and French are two pre-Charter cases that do not support the proposition for which they were cited. 

         Ringrose was a case of a doctor before the College of Physicians and Surgeons of Alberta where a member of the Discipline Committee was also a member of the Executive Committee which previously had improperly imposed suspension of the member.  However, it was determined that the member of the Discipline Committee was not privy to that decision at the material time that the College suspended the physician from practice.  In fact, there was a finding that there was no reasonable apprehension of bias.  It was not an accusation of bias that pre-existed the factual situation; it was a bias that was alleged to occur because of the fact that certain things were done.  There was a finding that no reasonable apprehension of bias existed: 

"Institutional bias or participation by an association may be a ground for apprehension of bias in the circumstances of a particular case."

         It doesn't say that the circumstances here could not create a reasonable apprehension of bias, when there was a finding by the majority that:

No reasonable apprehension of bias could arise in this case because of lack of knowledge by the vice-president of the Executive Committee's decision.  Nor can a reasonable apprehension of bias arise on the basis of participation by association except in special circumstances as where the person allegedly biased is sitting in appeal, which was the case here."

         The fact that the statute itself permits an overlapping of function between Executive and Discipline Committees was really obiter dicta, because it had already been found that there was no reasonable apprehension of bias in the circumstances.

         The case of French is another judgment of the Supreme Court of Canada which, in my submission, does not indicate that because a statute authorizes something it is therefore not a reasonable apprehension of bias.

         That was a case where the solicitor was dealt with by Convocation where a member of the Discipline Committee that had found against him sat on Convocation.  It just simply says, with opposition:

"Apart from statute, the procedure followed might tend to indicate bias or an opportunity for bias and thus invalidate the proceedings on the ground that they were contrary to natural justice.  However, the Law Society Act, by implication, permits proceedings in which members of the appellate tribunal have sat in the tribunal of first instance.  In the first place, under s. 39 of the Act a specific right of appeal to Convocation is given to a member or student member of the Law Society who has been reprimanded ‑‑."

         They found that it was actually an appeal that was being dealt with by Convocation.  They said:

"Furthermore, a disciplinary proceeding such as this does not involve a trial before the Discipline Committee with an appeal to Convocation, but is essentially a single proceeding comprising two stages, viz., an inquiry by the Discipline Committee which reports its findings to Convocation, followed by a consideration of the report and a decision thereon by Convocation.  While the Discipline Committee does reach a decision...as to the culpability...only Convocation...is entitled to take the appropriate disciplinary action."

         They found that this was not a separate proceeding, that it was all part of the same proceeding.  It is also, of course, a pre-Charter case, and there was a strong dissent on the issues even as they stood.

         In my submission, neither case deals with or adequately encompasses the circumstances of this case.

         The case that is more applicable is the reference to the various Attorneys General.  In my submission, the judgment there requires certain circumstances, and those are very restrictive circumstances that allow a judge who would otherwise be disqualified to hear the case nonetheless.  It is, after all, a case restricted to judges, and the ongoing activity of the courts of several provinces was the real issue.

         I would like to say, first of all, that emergency is the cloak that tyrants wear and the court looks upon this exception to the general principles that one is entitled to an impartial tribunal in a way that requires extremely unusual circumstances, and they say so.

It states:

"‑‑ a limited degree of unfairness toward the individual accused ‑‑"

         MEMBER DEVINS:  I am sorry, where are you reading?

         MR. CHRISTIE:  I am reading from the headnote in the left-hand column, the first paragraph on page 7:

"‑‑ a limited degree of unfairness toward the individual accused.  Given this adverse effect, the exception should be applied rarely, and with great circumspection."

It was there used to prevent the re-opening of past decisions.

         At the bottom of the page, I would like to emphasize:

"‑‑ all aspects of the requirement for an independent, objective and effective process ‑‑"

were imposed, but a time limit was given.

         If I could refer to the judgment at page 10, paragraph 2, it is my submission that this was regarding people found guilty by provincial courts.  Of course, nobody is ever found guilty by Human Rights Tribunals.  The distinction between a finding of guilt and one of offence under a statute, where no penal sanctions can be imposed, is a significant one.  If one were to set aside findings of penal guilt and findings that had perhaps involved more serious consequences, the doctrine of necessity would have greater weight.  Whereas in the circumstances here, where only allegedly remedial consequences would be effected, the doctrine of necessity is not, in my submission, anywhere near met or satisfied.

         At page 12, paragraph 5, they refer to this being an exception to the general rule that you are entitled to an impartial tribunal.  It states:

  "This exception, usually referred to as the 'doctrine of necessity' or the 'rule of necessity', developed side by side with the general rule of disqualification."

Then it goes on to discuss the cases where it applied in which all of the courts ‑‑ for example, Common Pleas in England, or elsewhere ‑‑ were invalidated by the perception or the reasonable apprehension.

         Paragraph 6 quotes from Halsbury:

"If all members of the only tribunal competent to determine a matter are subject to disqualification, they may be authorised and obliged to hear and determine that matter by virtue of the operation of the common law doctrine of necessity."

To prevent a failure of justice.

         There is no evidence before you of existing tribunals being adversely affected.  There is no evidence of any existing tribunal before you.

         There are further problems with the argument of necessity found on the next page where it states in regard to "Necessity in Public Law" by R.R.S. Tracey:

"The doctrine will operate when the only adjudicator with jurisdiction is disqualified or, in multi-member tribunals, where a quorum cannot be found because of disqualification, provided that the cause of the disqualification is involuntary.  It will not operate when the cause is voluntary ‑‑"

         Let me say right away that, in my submission, consistent with your previous ruling, there was no necessity for you to have been appointed under the new Act to complete your duties in respect of this Tribunal.  It is in that sense not something that was involuntary.  It is, and was, open to you to decline to accept an appointment ‑‑

         THE CHAIRPERSON:  Voluntary or involuntary by whom?

         MR. CHRISTIE:  By yourselves.  Nobody has to accept anything.

         THE CHAIRPERSON:  I see.

         MR. CHRISTIE:  It is a voluntary acceptance of the appointment.

         THE CHAIRPERSON:  Now I understand.

         MR. CHRISTIE:  I am trying my best, with my limited skills, to communicate.

         What I am suggesting is that there was no necessity with regard to this case to accept an appointment under the Human Rights Tribunal as it now stands.  According to your last ruling ‑‑

         MEMBER DEVINS:  Mr. Christie, doesn't the voluntary or involuntary component apply more broadly speaking in that, given your argument, every tribunal member, whether it involves Chair Pensa and I or not and, potentially, maybe not this case ‑‑ if your argument is correct, in virtually every other case after June 30, 1998, there would be nobody who could sit?  Isn't it in that context that the voluntary component comes in?

         MR. CHRISTIE:  With respect, it would not apply to this case because it was not necessary for the appointment to have occurred.  In this case ‑‑

         MEMBER DEVINS:  I am just wondering if that is really the sense in which "necessary" comes in.

         MR. CHRISTIE:  "Necessary" respecting all other tribunals?

         MEMBER DEVINS:  In the sense in which it is used in the passage.

         MR. CHRISTIE:  There is no explanation of the sense in which it is used.  It does say, though, that it ‑‑ meaning the exception ‑‑ will not operate when the cause is voluntary.  That is, the cause of the disqualification is the acceptance of a criterion of qualification which implies a bias. 

         Any reasonable person who observes this statutory description of an adjudicative role could decline to accept.

         MEMBER DEVINS:  Even if we had declined, though, by virtue of the thing offered, we would not have met the qualifications

         MR. CHRISTIE:  No.  You could say, "I don't accept that definition as applicable to me."  They could have been sensitive to the principles of impartiality greater than the principles of human rights and said, "I don't sit on a tribunal where I am told that my sensitivities are to the human rights aspect and not to the individual rights aspect or not to anything else.  When that is defined in that way, I don't accept it." 

         I wouldn't accept it, not that that makes any difference to you.  I wouldn't accept an appointment to a job where I am given adjudicative responsibilities and told, "Look at this way."  I would say, "Look at it that way yourself.  If you want a judge who is impartial, I am willing to take the job but, if you want a judge who is going to look at it your way, forget it."

         Frankly, if anyone had alerted them to this reality ‑‑ oh, it's very humorous.  It's not from our point of view very humorous at all.

         MEMBER DEVINS:  I understand your point.

         MR. CHRISTIE:  If anybody confronted with this criterion had done that, I would suggest that an amendment would have been rushed through to change it, or something would have been done to eradicate the problem.  Everybody, I suppose, thinks that human rights is just an all-encompassing love affair with justice, but it isn't.

         In my submission, the cause of disqualification in this case was both unnecessary and voluntary and in all other cases would be voluntary because no one is in a required position of undertaking an adjudicative role until that criterion is accepted.  When I say to someone, "You are the person that I consider sensitive, experienced, knowledgeable in human rights," the person has to accept that definition in accepting the appointment.  If they don't, we have a disagreement which results in non-appointment.

         It does take two to tango.  It is not an order that you sit; you are not compelled to sit.

         MEMBER DEVINS:  I understand your point.

         MR. CHRISTIE:  The Judges case was not a circumstance where statutory provisions themselves were contrary to the Charter.  It was a case, in my submission, where the administrative conduct of government in controlling wages changed the rules of the ballgame after they were appointed.

         At page 14 Mr. Justice Lamer says in the very last sentence in paragraph 7, which starts on the previous page:

"Given this adverse effect ‑‑"

And he is describing what it does.

"‑‑ it should be applied rarely and with great circumspection."

         Here is where I suggest there is a problem in the Zundel case"

  "As this rule applies to the situation at hand, absent a demonstration of positive and substantial injustice in the circumstances of a particular case,

the doctrine will prevent the re-opening ‑‑"

This is a particular case where no appointment was necessary and, in my submission, it is a positive and substantial injustice to have imposed it or accepted it in the circumstances. 

         It is, in my submission, a further positive and substantial injustice that a person should continue ‑‑ and it was said so in MacBain, for instance ‑‑ in circumstances that create a reasonable apprehension of bias.

         This was a unique situation where all members of the provincial courts ‑‑ I am now looking at paragraph 8:

"All members of the provincial courts, through no fault of their own ‑‑"

And that is, in the ongoing course of their adjudicative function.

"‑‑ were found not to be independent as a result of the actions of their governments."

         That is a really drastically different situation.  The only other examples were of whole levels of court found, by virtue of the bias reasonably apprehended, to be disqualified.

         With all due respect to the Tribunal, it would be my submission that the administration of justice in a concept of the criminal law has more urgent necessity than the administration of the Canadian Human Rights Act.  If all we are doing is remedying bad attitudes or bad expressions, where there is no demonstrable evidence of any urgent physical effects or any effect of an urgent nature, can it be said that this is concomitant to a situation where all members of provincial courts, through no fault of their own, were found not to be independent as a result of their government's action?  I would submit that that is not a comparable situation.

         With regard to that, at page 15, paragraph 10, they are dealing with the application of Prince Edward Island.  They wanted a declaration like they had got in the Manitoba Languages case to give them some temporary validity.  The Court held that in the Manitoba legislation case, which encompassed virtually every statute since 1890 being rendered unconstitutional, it created a legal vacuum and stated further:

"Any court whose constituting statute was passed in English only was abolished.  The composition of the Manitoba Legislature was also potentially invalid.  The rule of law gave this Court constitutional authority to provide a binding remedy in this unique situation.  There is nothing in this case that creates the same degree of necessity."

And they declined.

         In my submission, there are vast distinctions between the invalidity of all the Acts of all the courts of Quebec, Manitoba, Saskatchewan, Alberta and Prince Edward Island and a temporary invalidity perhaps of the existing Human Rights Tribunal, which Parliament can remedy if it chooses to do so.  If it was such an urgent necessity that something should be done, they could do it.  In my submission, they don't have a right to establish a tribunal with the statutory provisions they have.


         Thank you.

         THE CHAIRPERSON:  Thank you, Mr. Christie. 

         What is the next order of business?

         MR. CHRISTIE:  I would like to seek to qualify Dr. Faurisson.

         MR. FREIMAN:  I have a few submissions before we begin.

         At 4:30 or 4:45 on Thursday ‑‑ and I wasn't thinking as quickly as I should have; perhaps I don't think as quickly as I should under most circumstances ‑‑ something rather remarkable happened.  After the witness Mr. Weber had left the body of the court, we discovered, with no other warning and no substantiation other than a whispered conversation between the Respondent and counsel, that Mr. Weber would not be here.  We were not told why he would not be here; we were not told for how long he would not be here.  We were simply told that he was not going to be here.

         Then we were told in addition that the next witness on the list of witnesses, Professor Martin, would not be here.  We were told he would not be here because he had to testify in court on Monday and it might slip over into Tuesday.  We still don't know whether he is going to be here tomorrow, as I understood he might be.  We don't know whether Mr. Weber is going to be here tomorrow and, if he is not going to be here tomorrow, why he is not going to be here tomorrow.

         The Tribunal has not excused Mr. Weber.  The Tribunal said that we would see what happened today and make the best of what we had.

         We now find ourselves in the invidious position of having one supposed expert after another trooping in to be qualified on little or no notice, with no prospect of any evidence, and then having all the evidence rammed down our throats simultaneously later on in the spring.

         This method of proceeding is not only irregular, but it is highly prejudicial.  One doesn't go around qualifying all the experts, or the supposed experts, first and then hearing their evidence.

         I would like to know, first of all, where Mr. Weber is, why he is not here, when he can be here, and on what basis he has decided that he won't be back until the spring, which is what I understand is his decision.

         I would also ask through you to inquire as to where Mr. Martin is and when he will be here.

         With regard to the proffered witness Faurisson, I notice that it is 2:30 now.  It is unlikely that we will even get the qualifications in.  On finally looking at the material that was provided to us, it is impossible to know even the area of expertise that is being claimed by the witness and said to be relevant to any matter in issue, which makes it extremely difficult for the Commission and for the Complainants and Intervenors who may wish to qualify his expertise to know what it is that we are supposed to be looking at and how we are supposed to be dealing with this.

         I certainly protest this method of proceeding.  I would suggest that we find out what these various witnesses' schedules are and then I may have some submissions as to what the proper mode of proceeding ought to be.

         THE CHAIRPERSON:  Before I call on Mr. Christie, Mr. Freiman, let me ask you this.

         My understanding was, and perhaps my colleague's was the same, that Mr. Weber would not be here today.  I am not sure that we had an explanation of that.  Speaking for myself, I had the impression that he would not be here today but that he would be here this week, in the event that we qualified him, to give his evidence.

         MR. FREIMAN:  That was indeed my understanding as well until I saw a piece of communication posted on the Internet ‑‑ and I am not going to give evidence as to what I saw ‑‑ which leads me to believe that the plan is for Mr. Weber not to make himself available until sometime in the spring.

         THE CHAIRPERSON:  We will deal with that.

         Let me ask you to direct your remarks to the prejudice in all of this.  Let's assume that we continue with the evidence which seeks to qualify one or another witness before we hear Mr. Weber.  Address the issue of prejudice from your point of view.

         MR. FREIMAN:  I started off my comments by saying that I am no longer clear.  When Mr. Christie was announcing his parade of potential witnesses, I thought understood more or less the specialties and the areas of expertise in which they were being proffered.

         Having now looked at the summaries of anticipated evidence, I realize that I was wrong.  I don't know what the areas are. 

         My suspicion is ‑‑ and I may be overly suspicious and I may be wrong.  It would appear that each of the next two or three witnesses are intended to be called in more or less the same area as you have qualified Mr. Weber in, and that is what it is like to be a revisionist or, giving it its best face, the social context in which revisionism is practised.

         If that is the case, it would be one of my arguments on qualification that one expert is enough on that.

         THE CHAIRPERSON:  That may very well be, but we ‑‑

         MR. FREIMAN:  You may not be in a position to judge that until you have heard the evidence of the witness in order to judge where that particular area of alleged expertise fits into the mosaic.

         The Tribunal has, in my submission correctly, noted that the area of relevance is limited at best and, I would have thought, is of questionable relevance.  One gives the Respondent the benefit of the doubt when he says that he needs this evidence in order to make a full answer to the complaint.  That does not mean that he should be allowed to occupy three, four or five weeks of the Tribunal's time on such matters.  Once you qualify the expert, that's it.  He comes back and he testifies.

         THE CHAIRPERSON:  Let me say this, Mr. Freiman ‑‑ and I want to discuss this with my colleague.

         It may not be the optimum use of the Tribunal's time to proceed in this manner.  The normal course of action is for us to make our ruling on the particular witness and then the witness, of course, should promptly give evidence.  I have never had a situation where it was any different.

         In order to accommodate this situation, if it is irretrievable ‑‑ and I am not saying that it is ‑‑ we would have to consider whether we would reserve on any further applications for qualification until we have heard Mr. Weber's evidence.  We may hear some evidence from additional witnesses if that is the only use we can make of our time.

         I am just thinking out loud and placing that before counsel for comment.

         MR. FREIMAN:  If it were clear that the evidence of the proposed future experts had some relevance, that might not be too objectionable a way of proceeding.  However, in the circumstances where that is not clear and, in fact, where rather than saving the Tribunal time and rather than making the best use of the time possible, one may in fact be condemning these proceedings to several weeks of unnecessary testimony.  That becomes questionable and it becomes a matter of fairness when the summaries of the evidence do not correspond to any known expertise that has previously been cited for the experts. 

         The Commission and the Complainants may be in the position, as we warned on Thursday, of informing the Tribunal that we cannot cross-examine because we have not been given any sort of adequate notice that would allow us to prepare for whatever it is that is about to come.

         If the area of expertise is as it appears from the two summaries of proposed evidence, then its only possible tangential relevance would be the social context of revisionism.  I would object to receiving more experts in that area until we have heard the evidence of the one so-called expert and the Tribunal is in a position to assess whether that is indeed germane and relevant evidence.

         If it is in some area outside of the social context of revisionism, if something else is being claimed, it certainly is not reflected in the summary of proposed evidence, and it would be difficult to prepare, given the time and given what is remaining.  I had anticipated being able to prepare something by way of response to the next proposed witness over the weekend, but in looking at the summary of proposed evidence I confess myself to be in a total quandary as to what it is that is being proposed.

         MEMBER DEVINS:  What do you propose as the alternative?

         MR. FREIMAN:  Let's hear what the situation is with regard to Mr. Weber.  Let's hear what the situation is with regard to Mr. Martin.  Let's hear what the situation is with regard to the actual area of proposed expertise for which these witnesses are being tendered, and then maybe we can come to some rational disposition as to the time available to us.

         I am very loath to say, "Let's go off and do something else."  I would like to know what is going to happen.

         MR. ROSEN:  I have something to say as well.  I may as well say it now, and then Mr. Christie can respond to everything.

         I hope that the Panel appreciates that these are difficult witnesses.  They are tendered as experts, and they have written extensively for a number of years on a variety of topics.  To prepare to deal with them, speaking from personal experience, takes a significant amount of time.

         We knew that Mr. Weber was coming and, in order not to be repetitious, we divided the labours.  Then, depending upon your ruling which we got today, we would then proceed to hear his evidence-in-chief and deal with it in cross-examination.  Of course, what went on during the course of Mr. Weber's qualifications would be evidence as well for you to consider globally at the end of the day.  It is not like it disappears from the record.  Certainly I will be relying on it.

         What has now happened is that unilaterally counsel for the Respondent has excused a witness without permission, in my respectful submission, from the Tribunal for an indefinite period of time, which means that he is essentially holding the Tribunal hostage to his schedule.  I would object to that.  That is certainly not proper conduct.

         The prejudice is that we now have the next so-called expert Faurisson coming forward when he was not supposed to be the next witness ‑‑ Dr. Martin was ‑‑ and we were scrambling to try to figure out who was going to do the lion's share of the work and how we were going to deal with it.  I agree with Mr. Freiman.  We looked at it, and I, as well, am not quite sure why he is being put forward, given the nature of the proceedings and previous rulings.

         What I am concerned about is that, if you allow the Respondent's counsel to proceed in this fashion, you will have two or three witnesses qualified almost in a vacuum without actually hearing the evidence of one.  Then there will be this cascade of evidence that will come in.  I know, as I stand here today, that notwithstanding your best intentions and your best rulings you will see that this will become the trial of did the Holocaust occur, are the details accurate, were there gas chambers, was there an extermination policy, and all the usual nonsense that spouts from the Respondent's side, and they are going to build on it.

         Once you have your ruling with respect to Weber and then you hear his evidence and see what the parameters of that evidence are, then the proceeding moves to the next expert and you ask yourself, "Does he merely duplicate?  Does he add anything?  Would we permit it?  Have we learned some lessons about maintaining parameters?" and so forth.  Otherwise, what essentially is happening, in my respectful submission, is that counsel for the Respondent is really taking charge of the proceedings, and we are going to be here for two years, never mind six weeks.

         I have thousands of pages of Mr. Faurisson's evidence in two previous trials.  One trial covers four volumes about six inches high, and the other one is about the same.  That is just two trials.

         I just think it is ridiculous, quite frankly, that he can just say at the end of the day, "Oh, my witness is not going to be here," and that is the end of it.  Then you are stuck saying, "What are we going to do with the rest of the week?"

         It is unfair to everybody.  It is unfair to you.  I think he owes you not only an explanation but at least an apology.

         THE CHAIRPERSON:  Mr. Kurz, please.

         MR. KURZ:  Obviously, I take the same position as my two previous friends.  I just want to remind you of the context wherein we were told that the first week would be Mr. Weber, that the second week would be Mr. Martin, and we were given the materials in that context.  It was not until Thursday night, literally when you were walking out the door, that we were even told for the first time that there was a possibility that Mr. Faurisson could be called in this context.

         I will remind you as well that it was not from Mr. Weber that we heard of some inability to attend here; we heard it from Mr. Zundel asking Mr. Christie ‑‑ and, obviously, none of us knows what was said ‑‑ and then Mr. Christie said words to the effect, "Oh, by the way, Mr. Weber will not be here next week."  Then there was a question of what was wrong with Mr. Martin.  "He is testifying in court in Boston on Monday."

         That is the context of how we got to this situation.

         My friend Mr. Freiman made reference to the Zundelgram and to the question of whether there is something being done deliberately or what have you.  The Zundelgram of last Friday ‑‑ and I don't know whether you want a copy of it.  It is e-mailed out before it is posted.  In effect, it made reference specifically to this situation.  If I can, I would like to refer you to the section ‑‑

         THE CHAIRPERSON:  I think we want to hear from Mr. Christie.

         Let me put it this way ‑‑ and, again, I am speaking for myself because I have not had an opportunity to discuss this with my colleague.

         Our understanding on Thursday night was that the interruption, to which perhaps I should have directed my mind more carefully ‑‑ as someone has said, we were just walking out of the room.  My full expectation was that Mr. Weber would be here in the event that we qualified him and that his absence today was a temporary phenomenon.

         MEMBER DEVINS:  I am afraid that was also my impression.

         MR. CHRISTIE:  It certainly was not my intention to leave that impression.

         We have understood that there was a 10-day rule which is unusual, but we accept it.  The evidence of Dr. Faurisson was faxed 10 days ago to all parties, including the Tribunal.

         MEMBER DEVINS:  Sorry, Mr. Christie, where is Mr. Weber?  Why is he not available?

         MR. CHRISTIE:  Mr. Weber has an ill wife, and he has two small children.  He could not leave her and the children for more than a week, so he had to go home.

         I always understood that, as long as we satisfied the 10-day rule, I could run my defence ‑‑ not the proceedings, but my defence ‑‑ as I saw fit.  You have the right to know the qualifications of the expert, the CV of the expert, the name of the expert and all the rest about the expert, but you don't have the right to demand that, each time you expect one to come down the chute, they are exactly in order.  Things change.

         MEMBER DEVINS:  Our expectation is simply that, when a witness is tendered, he is tendered for the duration of his evidence.

         MR. CHRISTIE:  His evidence might not have been admissible.  We don't know.  The fact of the matter was that he couldn't stay.

         THE CHAIRPERSON:  This is the first we have heard of it.  We were not told on Thursday that Mr. Weber was not able to be here because of his wife and his children and that he could only be here a week, which implies that he will not be here at all this week.  Is that what you are telling us?

         MR. CHRISTIE:  He will not be here at all this week, as far as I know.

         THE CHAIRPERSON:  This is the first we have heard of it today.

         MR. CHRISTIE:  Let's say for the sake of argument that you had not heard of it until today, which is quite obviously the case.  So what?  If I am entitled to call expert witnesses when it is convenient and we have the time and we have experts that we seek to call ‑‑ I can deal with the many, many accusations Mr. Freiman makes, but we seek to call experts in answer to more than just Dr. Schweitzer.  We wish to call an expert, namely Dr. Faurisson, as he states in his statement of anticipated evidence, in text and document analysis, which is the first thing he says.  It is all about answers to Prideaux as well as to Schweitzer.

         THE CHAIRPERSON:  Let's focus on the orderly progress of this Hearing which, to me ‑‑ and correct me if I am wrong.  If you qualify a witness to give evidence, the witness should then proceed to give evidence, and you should not proceed to try to stack up other witnesses like cordwood in case you can call them all.

         I think counsel's point is a valid one.  Whether we qualify anybody else as an expert will depend to a certain extent, and maybe on a determinative basis, on what Mr. Weber's evidence is and how it is received.

         MR. CHRISTIE:  I understand.  You have given a ruling in which you have articulated specifically what you don't want and what you do want in terms of the admissibility of Mr. Weber's evidence.  I want to study that ruling, focus on it, as you suggested, and avoid these spurious accusations that are already being made that he is going to go far beyond the scope of what you said, that he is going to venture into realms where he ought not to go.

         I want to comply with that, and I want the opportunity to read that ruling and provide Mr. Weber with that ruling so that I know and he knows exactly what he is entitled to talk about.

         THE CHAIRPERSON:  What do you propose we do for the balance of this week?

         MR. CHRISTIE:  I have brought a witness from France, that I gave 10 days' notice of, to speak on another matter ‑‑ not a totally different matter, but a somewhat different matter.  He is here today.

         THE CHAIRPERSON:  If we qualify him today, would he be staying for his evidence?

         MR. CHRISTIE:  Probably.  That is the plan.  We have no way of knowing what games the opponents will play and how long they are going to take to qualify these people.  They eat up all the time that we had anticipated.  We did not expect Mr. Weber to take two and a half days to deal with this qualifications, but that's fine.  They take all the time they want, and nobody ever objects.  They go up and yell right in his face; they call him all kinds of insults, and nobody objects.  I don't object.  Take all the time you like.  Then what happens?  The time he could have been testifying is gone.

         That is not my problem, and I don't take responsibility for it.  If that was impossible because of the circumstances, that is what happened.

         Dr. Faurisson is a doctor with the sine qua non of an expert.  He is here.  He came here from France on Saturday, and he is here until the end of the week.  It would be nice to attempt to qualify him in the area which we suggest will be relevant, in answer to the expert Prideaux.

         THE CHAIRPERSON:  I guess the issue is whether the Tribunal will allow Mr. Weber to give evidence, having left the Tribunal and having left the jurisdiction.

         MR. CHRISTIE:  That is your decision.

         THE CHAIRPERSON:  That is the issue before us, I suppose.

         MR. CHRISTIE:  I think the issue before you is:  Do I or do I not have the right to decide what order of witnesses I will call.  Provided I have given 10 days' notice of any expert, can I re-arrange them?  If it turns out that Dr. Martin is busy for tomorrow and cannot come or if he cannot come until May, is it possible for me to say to myself and as soon as possible to my friends, "He can't be here tomorrow?"  I always thought that was my prerogative.  I don't dictate the terms of their order of witnesses.

         THE CHAIRPERSON:  All things being equal, you are in charge of your defence, subject to any rulings of the Tribunal.  We have qualified this witness within the ambit of our reasons, and we are ready to hear his evidence.

         MR. CHRISTIE:  I would like to seek to qualify another witness, and I think I have a right to do that.  I have explained why he cannot be here; this is the information I have.  I have explained why Dr. Martin cannot be here ‑‑ and I did not say that he was testifying in Boston; he may be.  He has a trial in Boston; I didn't say "testifying."  That is a word that Mr. Kurz put into my mouth.  I said he was in a trial in Boston.  I have been in touch with him, and he is going to try to be here; I don't know if he can.

         THE CHAIRPERSON:  Where is Mr. Weber?

         MR. CHRISTIE:  Mr. Weber has gone home to California.  I have had to juggle witnesses from California, Boston and France, so I have tried to do it as best I could.

         THE CHAIRPERSON:  Is there anything more?

         MR. CHRISTIE:  I would like to make submissions with respect to whatever was said.

         We faxed the CV of Dr. Faurisson to all the parties on December 4 at about 5:00 p.m.  It is now December 15.

         We had set aside the week for Mr. Weber's testimony.  That was exhausted in the course of qualification, and his time ran out.

         I am not trying to take charge of the proceedings, but I think I have a right to take charge of the defence.  If I do, I think I have the right to order the witnesses as it is possible for me ‑‑

         THE CHAIRPERSON:  You have heard our remarks in that regard.  We are not interfering with the order of your witnesses.  We are just asking you to bring the witness before us.

         MR. CHRISTIE:  I obviously can't bring him here today.  Weber is at home with his wife who, I understand ‑‑

         THE CHAIRPERSON:  Can he be here tomorrow?

         MR. CHRISTIE:  I don't think so.  We have Dr. Faurisson here.  Our goal was to qualify him, if possible.

         THE CHAIRPERSON:  Subject to what you have to say and consulting with my colleague, I think it is extremely unlikely that we would hear from Mr. Faurisson if you remain determined to call Mr. Weber.

         MR. CHRISTIE:  That is assuming that you accept everything my learned friends have said about the similarity of evidence.  What if it is different?  What if you decided, on hearing his expertise, to qualify him in a scope of evidence that was not overlapping with Mr. Weber's.

         THE CHAIRPERSON:  That is possible.

         MR. CHRISTIE:  Then we have a focus.  We don't want to offend against these restrictions.  They are very clearly articulated.  I have not been able to take down verbatim what you said regarding Mr. Weber; that is why I want time to consider it, to consult with him, and make sure that he understands it and we restrict ourselves.

         Let's say there is another area of expertise that Dr. Faurisson can have.  Why should it not be possible to seek, first of all, to qualify him in that area and, second, to define it however you wish in terms of restrictions and thereby prevent any overlap?  There is no harm to anybody.

         THE CHAIRPERSON:  Mr. Freiman, please.

         MR. FREIMAN:  I hear the words.  I have also read the summary of anticipated evidence, and the summary of anticipated evidence runs against all the words.  What is in the summary of anticipated evidence is a complete overlap with what Mr. Weber was tendered to discuss, and it really has to do with the salutary effects of revisionism as seen by someone who should know because he is a practitioner.  Whether you call Mr. Weber as a historian, as he has been charitably called by the Respondent, and you call Dr. Faurisson as, as he is about to be called, a document examiner, whatever that means, the substance of the evidence remains the same.

         MR. CHRISTIE:  Could I reply to that, because that is not what I heard before.

         MR. RICHLER:  I would just echo that the summary of anticipated evidence of Mr. Martin, to my reading, to the extent that I can understand the relevance, is an overlap with Mr. Weber's summary of anticipated evidence.

         MR. CHRISTIE:  Now we are talking about Dr. Martin and Dr. Faurisson.  They are two different things.

         MR. KURZ:  Just two points following on what Mr. Freiman said.

         In the CV that we have for Dr. Faurisson, in terms of expert testimony, we understand that he testified at the two trials of Ernst Zundel as an expert witness in World War II history, on the treatment of the Jews by Nazi Germany.  Then he testified in another trial on the same topic.

         That sounds a lot like Mr. Weber to me, the same kind of testimony that the Holocaust did not happen, and what have you.

         My friend Mr. Christie says, "I need to study your ruling."  It may well be that, if Dr. Faurisson were called and some other kind of restriction were placed on Dr. Faurisson's evidence, we may again be in the position where Mr. Christie has to study that ruling.  Then are we going to go back and forth, flipping and flopping, and maybe then Mr. Weber can come in because Mr. Christie will study the ruling, or maybe Mr. Martin will be called in to be qualified so that there is a third witness once all those rulings are studied?

         There is a problem with that submission.  Again, for reasons I cited before in terms of the Zundelgram, we have reason to believe that it is the intention to qualify both of them this week, Dr. Martin and Dr. Faurisson.  That makes no sense.

         Time will not be saved by going through this procedure.

         MR. CHRISTIE:  May I reply?

         THE CHAIRPERSON:  Shortly; in a short space of time, I mean.

         MR. CHRISTIE:  First of all, if I want to call two experts or three experts, nothing says I can't.

         THE CHAIRPERSON:  We can say you can't.

         MR. CHRISTIE:  You can say I can't.  Subject to whatever reasons there were, you have the power to do anything, actually.

         THE CHAIRPERSON:  It is no different from any tribunal or any court.  There is a restriction on the number of witnesses you can call, depending on the circumstances.

         MR. CHRISTIE:  It would not necessarily be improper to call two or three witnesses.  It would not be wise to call them in the same area and it probably would not be necessary.

         Dr. Faurisson's evidence was defined in his summary of evidence.  It dealt with the method of text and document criticism, focusing on the text regardless of context.  He goes on to say that he is in fact a historical revisionist.  He goes on to explain how he has been qualified in the past in other cases.  He speaks about Prideaux' evidence and Prideaux' conclusions repeatedly in his statement of anticipated evidence.

         In the historical context of Dr. Prideaux' analysis, in which he continually relied upon his judgments of history, Dr. Faurisson has, in analyzing and expressing his views about Dr. Prideaux' evidence, both the historical contextual knowledge and the documents and text analysis knowledge which is capable of giving a unique and accurate perception ‑‑

         THE CHAIRPERSON:  I don't want to get into the argument on merits at this point.

         My colleague and I are going to retire to consider what we will do at this point.

         Mr. Fromm, you did not stand up at the right time.

         MR. CHRISTIE:  Dr. Martin has evidence about the social context of the complaints which bears upon the effect of those complaints and the validity of those complaints in relation to the proceedings.  Dr. Martin's evidence is of a different character and nature, and it has not to do with either historical revisionism or text and document analysis.  It deals with social context.

         It is incorrect to say that Dr. Martin's evidence has anything to do with historical or Holocaust revisionism.

         THE CHAIRPERSON:  We will hear about it if we decide on a course of action.

‑‑- Short Recess at 2:58 p.m.

‑‑- Upon resuming at 3:09 p.m.

         THE CHAIRPERSON:  Just before this Tribunal adjourned on Thursday last, we heard for the first time that Mr. Weber would not be available today to give evidence.  It was unclear to my colleague and I why he was not available today, but we adjourned the Tribunal until today to consider our decision whether Mr. Weber would be qualified or not.  This was at the conclusion of the voir dire on the qualification procedure.

         We did not excuse the witness.  We are told today for the first time that Mr. Weber has not only left this Hearing but that he has left the jurisdiction and has gone home to California.  Again for the first time, we are told it is because of family reasons.

         We do not get the impression that that information was unavailable to counsel and that we could not have been told about it last week.

         It is the province of a tribunal such as this, as in a court, to decide whether a witness shall be excused or not.  Having made our decision at the conclusion of the voir dire and having qualified the witness within the ambit of the particulars of our ruling, Mr. Weber is still under oath and would in the normal course of events have been called upon to continue his evidence with the examination-in-chief by Mr. Christie, who has offered this witness to the Tribunal, and then, of course, proceed to be cross-examined in connection with the evidence he has given.

         The Tribunal is left with the dilemma of what to do in this situation, recognizing the importance of the issues in this case and recognizing that the time that we have set aside for this Hearing is precious, having in mind the number of witnesses and counsel, not to mention the Tribunal,

         The Tribunal has decided that, notwithstanding what we feel is warranted as some sort of reproach to the Respondent for creating this turn of events, we do not wish to lose the time that we have available.  What we are directing is that the next expert witness be called and that the process of qualifying this witness by way of a voir dire proceed.

         The Tribunal does not say what it proposes to do in the event that that witness' evidence is concluded in the voir dire, in terms of whether we will give a decision immediately or not.  The preferable course of action, in fairness to the Commission, counsel and the other interested parties who identify themselves with the Commission's case, is that Mr. Weber's evidence be heard first before another expert witness is tendered.

         We will reserve our decision in that regard, depending on the nature of the evidence proposed to be given by the next witness, from the point of determining whether it is significantly, substantially or marginally different from what is proposed to be heard from Mr. Weber.

         Mr. Christie, call your next witness.

         MR. FROMM:  Mr. Chairman, just to clarify ‑‑and perhaps I am a little dense about the batting order.  In the previous go-round, various counsel objected to Mr. Weber's absence, et cetera.  Mr. Christie responded, and I believe Mr. Freiman got up and made some remarks in rejoinder.  Where was I supposed to get up in that batting order?

         THE CHAIRPERSON:  You were supposed to get up after Mr. Christie.  I am not going to hold up the proceedings any further.

         Proceed.

AFFIRMED:  ROBERT FAURISSON

           10 rue de Normandie

           0310 Vichy Pont

           France

EXAMINATION-IN-CHIEF RE QUALIFICATIONS


         MR. CHRISTIE: 

         Q.   Could you tell us, sir, the date of your birth.

         A.   25th of January, 1929.

         Q.   What is your educational background, sir?

         A.   I went to school in different countries.  I began in Singapore in an English school, then in Kobe, Japan.  Then I went back to France, and I ended up in Sorbonne.

         Q.   Did you receive a licence classique d'enseignement?

         A.   Yes.

         THE CHAIRPERSON:  Is there a CV?

         MR. CHRISTIE:  There is.  I thought we had faxed it on the 4th to the Tribunal.  I don't have any extra copies right now.

         MR. FREIMAN:  Just before Mr. Christie begins, I understand that in the normal course it is often not objectionable to lead on a witness' qualifications.  In view of the crucial nature of some of the testimony and some of the evidence on the CV of this witness, I wonder if Mr. Christie could be particularly careful and, in fact, confine himself to not leading questions rather than leading on qualifications.

         I can say in candour that there are no uncontroversial elements of this witness' curriculum vitae.

         MR. ROSEN:  I am prepared to provide the Tribunal with my copy.  It is relatively clean.

         MR. CHRISTIE:  In view of the term "relatively" and the controversial nature of everything, could I see that?

         MR. ROSEN:  Certainly.  It doesn't have any marks on it at all.

         MR. CHRISTIE: 

         Q.   Dr. Faurisson, I am going to show you this document and ask if you could identify it before we mark it.

         A.   Yes.  This is my curriculum vitae first and then something else.

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

         MR. ROSEN:  Actually, the "something else" is a summary of evidence.  I have not provided the Tribunal with that.

         THE CHAIRPERSON:  I have in my hand what I understand to be the curriculum vitae without a proposed outline of evidence.  Is there any objection to marking that?

         THE REGISTRAR:  It will be marked as Respondent Exhibit R-40.

EXHIBIT NO. R-40:  Curriculum vitae of Robert Faurisson

         MR. CHRISTIE: 

         Q.   Dr. Faurisson, could you describe the four entries under "Education", please.  There are four dates in your educational description.  Could you tell us what each one means and what it signifies.

         A.   It means that at the beginning I learned French literature, Latin and Greek.  In 1950 I got a Licence classique d'enseignement, which means that at that time I had the right to teach French literature, Latin and Greek.

         Then in 1951 I had a Diplome d'études supérieures in French literature.

         Then in 1956, what we call Agrégation des lettres (French, Latin, Greek).  It is the highest competitive examination for teaching anything in France.  It is a difficult examination.

         Then in 1972 I got my Doctorate in letters and the humanities at the Sorbonne.  Letters and humanities includes history.

         If I may add something about my qualifications as a historian ‑‑

         THE CHAIRPERSON:  Wait for the question from Mr. Christie.

         MR. CHRISTIE: 

         Q.   Are you in any way qualified in text and document analysis?

         A.   Yes.

         Q.   By what means?

         A.   It means that first, as I told you, my qualifications were in French literature, then in Latin and Greek.  I abandoned Greek and then Latin.  I took French literature only for the 19th and 20th centuries, and I added something that we call text and document criticism; perhaps the best translation in English should be text and document analysis, which was something new in France in 1974.  I may explain what is text and document analysis.

         Q.   Could you first explain why it is new or how it came to be new.

         A.   I should say that by the experience of teaching French to students I realized something that I could summarize this way.  Students and even professors tend to comment too much before reading carefully what they have to comment on.  I realized that people were normally interested by text and context, but they had a tendency to mix up text and context and they had a tendency, which is wrong, to comment on something right at the beginning with the context.  They should stick to the text for a very long time before saying one word about the context.

         May I give examples?

         Q.   My question was:  How did this come to be new in France?  Who originated this analysis?

         A.   It was, as we say in France, dans l'air du temps.  I don't know how to say it in English.  In the university it was something that the professors discovered as necessary.  It was too much verbal, and professors thought that it was necessary to be more scientific even in the study of letters.

         Q.   Can you tell us anything about your work experience which you have in your CV under "Work?"  Can you tell us what that is all about?

         A.   You mean about...?

         Q.   "Work" is the next category down from "Education."  Could you describe those employments.

         A.   From 1969 to 1973 I was Senior Lecturer with tenure ‑‑ I don't know if that exists in Canada

‑‑ at the Sorbonne in French Modern Literature.

         From 1974 to 1979 I was a full Professor with tenure at the University of Lyon, France, both in Modern French Literature and Text and Document Criticism (literature, history and the media), which means that you have to analyze text which might be taken from a novel, a poem or from a historical text or from an article in a newspaper, or it could also be any video or things like that.  It is to analyze.

         Q.   To analyze what?

         A.   To analyze the meaning without giving any comment.  I think I should give an example.

         Q.   Maybe with some luck you might get a chance.

         From 1979 to 1990, what were you doing then?

         A.   I was unable to teach, as I said, because of Jewish demonstrations, attacks and threats of violence because of publication of revisionist views on the fate of the Jews during World War II, but I kept working and publishing in matters of text and document criticism.  This happened exactly in November 1978 when in the journal, Le Monde, I published an article whose title was "The Rumour of Auschwitz."  My question was:  Are you absolutely sure that the Nazi gas chambers, not to be confused with crematories and so on, really existed?  This was my question.

         Of course, I gave arguments to show that I had the right to ask this question, but it seems that for some groups it was too much.  So I had ‑‑

         THE CHAIRPERSON:  We are not interested in a political discussion, Dr. Faurisson.

         MR. CHRISTIE:  This is a historical event in his life.

         THE CHAIRPERSON:  He went beyond that.

         MR. CHRISTIE: 

         Q.   You had better not comment, then, on anything that happened.  Just describe the events.  We will have lots of interruptions if you don't.

         A.   I am ready to do it.

         Q.   From 1990 to the present, what happened?

         A.   My tenure as a professor was revoked by the Minister of Education without any notice or hearing or due process.  This is a fact.

         Q.   Does that happen very often?

         A.   Exactly never.  Never has happened such a thing.

         Q.   Since 1990 have you continued to publish articles on text and document criticism?

         A.   Yes, I continued to publish in the area of text and document criticism, which means that I published texts on so-called literary matters or so-called historical matters, which is for me an artificial distinction.

         Q.   In terms of published works, you have something called "Commentary on the Work of Robert Faurisson".  Who is André Breton?

         A.   André Breton is a famous French poet, a surrealist as we say.  In 1961 ‑‑

         MR. ROSEN:  I object.  The comment that somebody has commented on him and that it appears in his CV has absolutely nothing whatsoever to do with his qualifications, with due respect.  It is also on a different subject.

         MR. CHRISTIE:  If I could maybe get one objection at a time ‑‑ I heard Mr. Kurz talking to Mr. Rosen, and I am trying to follow both.

         It seems to me, if I am answering Mr. Rosen's objection, that ‑‑ as I recall, Dr. Schweitzer gave a number of comments about awards he had received and judgments that had been made upon him.  I don't think it is improper to identify any awards or recognition that an expert may have received.

         THE CHAIRPERSON:  I suppose it goes to weight.  It is hearsay here.  It is a publication of some sort.  There is no citation of a publication.

         MR. CHRISTIE:  I appreciate that.

         THE CHAIRPERSON:    Carry on.

         MR. CHRISTIE: 

         Q.   Do you want to say something about that?

         A.   Yes.  It was in fact published.  I didn't give the reference.  I didn't give many references that I could have given.  It was published in France in a magazine.

         Q.   What is that?

         A.   A weekly magazine, in 1961.

         Q.   What kind of magazine is it ‑‑ a small magazine?

         A.   No, no.  It has a left tendency.  He didn't write it.  It was an interview of this man, and some others also, because I had published a book that you will find about Rimbaud.

         Q.   We will deal with that in a few moments.

         In respect of Pierre Citron, who was he?

         A.   He was a professor at the Sorbonne.  He had to judge me, and this is the judgment that he gave.  I think that in the translation there might be a mistake.  He did not say that I was a most brilliant professor; he said "very brilliant professor."  He did not say "most original researcher"; he said "very original researcher," and he said "exceptional personality."

         Q.   In what context was that written?

         A.   We are judged every year, and this is what in 1972 or 1973 Pierre Citron said about me.  It was written down.

         Q.   Where was it published?

         A.   It was not published; it is just in my file ‑‑ in the file of Robert Faurisson, being a professor in France.  You would have to go the Ministry of Education Nationale to find it.

         Q.   You then refer to Jean Tulard.  Who is he?

         A.   He is a very well-known historian, a professor at the Sorbonne.  I don't know if I have the right to read this.

         Q.   We hope so, so let's try and see what happens.

         THE CHAIRPERSON:  We don't have to read what is there.  It is before us.  If you want to highlight certain areas, please go ahead.

         MR. CHRISTIE: 

         Q.   That is the opinion of this historian about you; is that correct, sir?

         A.   That is correct.

         Q.   I don't want to lead, but what context was this given in?

         A.   On the 16th of September, 1989 I was nearly killed.  On the radio and the TV they spoke about that, and they asked the opinion of this professor on me, and this was his answer.

         Q.   You have been, I understand, before French courts 12 to 15 times?

         A.   Yes, from 1981 until quite recently, I have been found guilty and convicted ‑‑ and I am going to say "condemned" ‑‑ 12 to 15 times because of my publications or statements.

         Q.   Have there been others in the history of France who have gone to jail for published views?

         A.   Myself, I have not been to jail.  I have been several times condemned to a suspended sentence and fines, very heavy fines sometimes.  I have not yet been in jail.

         Anyway, it is a kind of tradition in France to send to jail or to send in front of a tribunal people who are supposed to have incorrect views.  From the Middle Ages until the 20th century I could give you many, many names.

         Q.   Could you name any?

         A.   Yes, but it is difficult perhaps because of the names.  I am going to try to find names famous in the Anglo-Saxon world. 

         I would say in France we had Victor Hugo; we had Zola; we had Céline; we had so many of them ‑‑ Beaudelais, Flaubert, and so on.  Nothing new under the sun.

         THE CHAIRPERSON:  I am sorry, I didn't understand what the significance of those names was.

         MR. CHRISTIE: 

         Q.   What did they have in common?

         A.   Those people published writings or made statements and they were condemned in court, in the same way I was condemned myself.

         Q.   For their views?

         A.   For their views which were supposed to be incorrect at that time.  The most well-known example perhaps in your country is Zola.

         Q.   What is his first name?

         A.   Emile.

         Q.   Why did he go to jail?

         A.   Because he had taken the defence of Captain Dreyfus, and the French army, the French politicians ‑‑ most of them, at least ‑‑ considered that what Zola had declared was harmful to the French army and for many French people.  They said, "We do not care if you are right or wrong; you are doing harm."

         Q.   Did this happen also to Voltaire?

         A.   Surely.  Very often I give the name of Voltaire who was obliged to leave France because of his views.  He was considered, especially by the Catholic Church, as an enemy, and he had many troubles.

         Q.   And Victor Hugo, what problems did he have?

         A.   Victor Hugo was against Napoleon III whom he used to call "Napoleon the Little."  He had to go into exile in Jersey and Guernsey, for example.

         Q.   Has there been an experience in France of revisionism for some time?

         A.   Yes.  After World War I we had a man called John Norton Cru.  This man, who was half English and half French, wrote a book, a very famous book, called "Witnesses."  He wrote about their testimony.  He said about World War I that so many testimonies, so many witnesses, were quite wrong about German atrocities and especially about Belgian babies with their hands supposedly cut by the Germans or Canadian airmen being crucified by the Germans. 

         He was the first French revisionist, but you have many revisionists in the United States after World War II, especially James Morgan Read, who published in 1941 about World War I a book called "Atrocity Propaganda."  He showed in this book that there was an atrocity propaganda by the British and by the French about the Germans and by the Germans about the French and the British.

         Then we had, if I may continue, after World War II the man called the Father of International Revisionism, Paul Rassinier.  He wrote a book entitled in English, "Ulysses Myth."  The title means this.  Ulysses in Homer suffered, let's say, 100 sufferings but, when he came back, he recounted 1,000 sufferings.  He exaggerated very much. 

         Paul Rassinier was a socialist and a pacifist, had been in the Resistance, had been arrested by the Germans, had been deported to Buchenwald, suffered very much, came back to France and began to read everything which was published about the experience of deportation and he said, "There is something wrong about that, especially about the so-called Nazi gas chambers."

         THE CHAIRPERSON:  Excuse me, Witness.  Mr. Christie, this, it seems to me, has all the earmarks of a dissertation rather than a review of his qualifications and the connecting of those qualifications with the kind of evidence that he intends to give.

         MR. CHRISTIE:  I agree.  What I am endeavouring to show is the background of the convictions in the French courts.  I will endeavour to show that these are not unusual among those who express certain views in France.  That is the purpose of referring to Paul Rassinier.

         THE CHAIRPERSON:  I am finding it difficult to understand how we would be helped by that kind of evidence in determining whether this man has qualifications. 


         Perhaps the witness could step outside for a moment.

‑‑- Witness Withdraws

         The difficulty is that he wanders into a dissertation which goes to what he believes and what his philosophy is; whereas, what I thought we might hear is what are his formal qualifications.  If he intends to give evidence about, as he said earlier on, being qualified in text and document analysis, at the moment I don't have a clear understanding of what his qualifications are in that regard and how it is connected to any issue in this case.

         Whether he has been condemned or queried or charged in France, I am not sure how that helps us here to judge whether his qualifications are sufficient to give evidence as to his expertise in text and document analysis or some other area, such as the qualifications which we referred to in our decision about Mr. Weber.

         MR. FREIMAN:  If I may add something which may assist Mr. Christie more than he thinks, I anticipate that any cross-examination of this witness will indeed dwell at some length on the circumstances of his conviction and the meaning of the conviction and its influence on his credibility and, indeed, on his reliability.

         On that basis, I would not want to give any basis for complaint to the Respondent that he was not allowed to bring out in examination the mitigating factors that he believes should lead this Tribunal to disregard the convictions and to see them as somehow garlands of honour on the brow of an honoured descendant of Victor Hugo and Emile Zola.  I especially would not want this to come out in re-examination rather than, as it should, in-chief.

         The Commission does not in principle object to questioning of this witness on his convictions.  There comes a point where the question is no longer on his convictions but on his abstract musings on the way the world is.  At that point, I believe the Chair's comments become especially pertinent.

         If you feel you should be disregarding his convictions, the Commission, at least, would have no objection.

         THE CHAIRPERSON:  That being said, I am not sure that the Tribunal is committed to hearing that evidence.  It may be that it can be explored under the rubric of credibility in cross-examination, which will be open to re-examination.

         I think we have made our position clear in terms of staying close to the qualifications on which you rely, Mr. Christie, and the connection of those qualifications with the intended evidence.

         MR. CHRISTIE:  I will govern myself by your remarks.  If I might, I would like to advise the witness of ‑‑ you could tell him what your ruling is so that he will understand why I might change directions.


         THE CHAIRPERSON:  I would prefer that you just conduct your examination and, if we have to intervene, we will intervene.  Capture the letter and the spirit of what we have said, and we will see how we make out here.

‑‑- Witness returns to the stand

         Perhaps I will assist you, if I may.

         Mr. Faurisson, we are at this stage to hear from you what your formal qualifications are to be an expert.  You have been questioned about your expertise before in other proceedings, I understand.  In order to qualify you as an expert, we have to be convinced that you have certain skills that are not given to every ordinary mortal, that you can offer something in your evidence that emerges from your expertise, your formal education, your own study, your learning, et cetera.

         I don't want you to be wandering off and giving speeches.  I want you to talk about yourself and in response to Mr. Christie's questions, keeping in mind that you are an expert in some area.

         MR. CHRISTIE: 

         Q.   If we could focus on your previous expert testimony, have you testified in any court in the world before?

         A.   Yes, in Toronto in 1985.

         Q.   Were you accepted as an expert at that time?

         A.   Yes.

         Q.   What was the scope of your expertise?

         A.   If I remember, it was a specialist of Holocaust revisionism.  I don't remember exactly the wording.

         Q.   Did you return and testify as an expert in 1988?

         A.   Yes.

         Q.   Do you recall how long you were on the stand on those two occasions?

         A.   Something like six days, I think, in 1988; in 1985 I do not remember.

         THE CHAIRPERSON:  Where was that?

         MR. CHRISTIE:  In the District Court in Toronto before His Honour Judge Locke and His Honour Judge Thomas.  In 1985 it was before His Honour Judge Locke, and in 1988 it was before His Honour Judge Thomas.

         Q.   Have you been called as an expert and given opinion evidence in any court in France?

         A.   Not as an expert, which is very rare in France, but as a witness having the right to express opinions and so on.

         Q.   What is the difference?

         A.   I think in this country, unless I am wrong, if you are not an expert, you have no right to give opinions.  There is something like that.  I think there is a difference in France.

         Q.   What is the difference in France?

         MR. KURZ:  Should this witness be giving his treatise on French law?

         MR. CHRISTIE:  I think he has a right to explain some aspects of what he understands.

         THE CHAIRPERSON:  Proceed.

         MR. CHRISTIE: 

         Q.   Do you know what is the significance of an expert in France, or not?

         A.   Yes, I do.  In France a tribunal decides that someone will be an expert, but without any pre-hearing.  It is, in a way, on title.  You have such and such a title, so you are going to say, "I have a title; I am a specialist in motor cars" or whatever.  The Tribunal has list of official experts in different fields, and it is automatic. 

         You have to say, "I wish to have an expert," and the tribunal says "yes" or "no."  You have a list.  You cannot take an expert outside this list.  There is no pre-examination.

         Q.   We won't go any farther.  There is some difference, and that is as far as you know, is it?

         A.   Yes.

         Q.   Have you been called by the defence in cases to give opinion evidence in France?

         A.   Yes, at least five times.

         Q.   Have you testified in those five times?

         A.   Yes, I did.

         Q.   Do you remember the names of the cases?

         A.   Yes, I do.

         Q.   Could you give the names and, if possible, the courts and the years?

         A.   The first time it was for Pierre Guillaume on the 27th of November, 1988 in Paris.

         Q.   Do you know what court that was?

         A.   It was what we call Tribunal Correctionnel, which is a penal tribunal. 

         Then for a man called Michel Konen on the 12th of June, 1990 in a place near Paris called Maux.  It was the same thing, Tribunal Correctionnel.

         Then for a man called Alain Guionnet.  This was near Paris also, in Nanterre.  I could not find the date of it, because I was asked recently to go into my files.

         Then for a man called Emmanuel Allot.  It was on the 22nd of February, 1991 in Paris.

         Then for two young men, Vincent Reynouard and Remi Pontier, on the 6th of November, 1991.  It was in Normandy in Caen.

         Q.   Do you know what court that was in?

         A.   The same court, Tribunal Correctionnel.

         Q.   Have you been called to give opinion evidence in the United Kingdom?

         A.   Yes.

         Q.   When and where?

         A.   For Nick Griffin on the 29th of April, 1998 in London, Norfolk.

         Q.   Do you know what court that was in?

         A.   I don't remember the exact name.

         Q.   In terms of publications, you begin ‑‑ could you translate the title of the book published in 1961?

         A.   Yes.  "Has One Read Rimbaud?"

         Q.   "Has One Read Rimbaud?"

         A.   Yes.

         Q.   Why did you choose that title?

         A.   Because, of course, I knew that many people had written many books about Rimbaud, but all the same my question was:  Did you really and carefully read the man on which you have written this book?  I see many comments, but what about your understanding, especially of the cryptic text of Rimbaud?  I don't find anything in any book written by French people or English people, and so on.  I don't find anything about the cryptic text of Rimbaud except very cryptic remarks, comments and so on. 

         My question every time:  Certainly I am interested in comments, but I want to be sure that the man or the woman who is commenting has really read the text.

         Q.   Did this book have anything to do with text and document criticism or analysis?

         A.   It was totally text and document analysis, which means ‑‑ and I am going to give an example.

         There is a very cryptic text of Rimbaud, very famous.  It is only 14 lines and on those 14 lines books and books have been written.  I took those 14 lines ‑‑ and this is the way I used to do in text and document analysis.  I say:  I don't want to know the name of the man who supposedly wrote this.  I don't want to know the time.  I don't want to take into consideration even the title, because there is a kind of pressure put on me by the title, like the fact that it is this man and not another one, that it is in this time and not in another time.

         We call this in our own pedantic language "unknown author."  It is not a poet; it is someone who has written words.  What is poetic for you may not be poetic for another one.  It is in tempore ignoto which means in an unknown time.

         I read very carefully the 126 words.  There are not 127 or 125.  I want to try ‑‑ and maybe I will fail; maybe I will be wrong in my conclusions.  I want to see the meaning of every word and the link between all of them.  It is exactly as if I had a Greek text, a Latin text, a Chinese text, a Hebrew text.  What I used to say to my students, especially in text and document analysis, is:  "Your mother tongue is French.  You are wrong to read something and to say, 'Oh, it's in French.  I am French, so I understand it.'  No, behave as if it was a totally cryptic language.  Try to understand every word and then perhaps after you will take into consideration something which is called context, which is very vague and very wide."

         I noticed that among my students and, I must say, among my colleagues, in order to appear brilliant and intelligent, they put at the same time text and context which is totally wrong.  We have to be very slow. 

         I have been writing on big pieces of paper text of a few lines, and I spend sometimes weeks and months trying to understand those cryptic texts.  This is the way you can.  This is really my specialty, how to detect fakes by looking very carefully.

         Let's stick to the example of Rimbaud.  When in 1961 I published this for the first time, there was in France ‑‑ and I don't know if in Canada you would have the same ‑‑ quite a hullabaloo.  French people are interested by literature, and there was an "affaire Rimbaud" which was at the same time an "affaire Faurisson."

         Q.   What are you trying to get at with this analysis?  What are you trying to achieve when you look at it that way?

         A.   To be precise; to be accurate; and not to comment something which does not exist.

         Do I have the right to pronounce the name of Mr. Prideaux?

         Q.   Probably not yet.  You may never get that right, for all I know, but you might get a chance to say something.

         You attempted to apply this method, I gather, to the work of Dr. Prideaux; is that correct?

         A.   Exactly.

         Q.   We won't ask your opinion.  We don't want your opinion, but that is one of the things that you have attempted to do in preparation for this case.  Is that correct?

         A.   It is correct that I am going to take the text of Mr. Prideaux from the first word to the last one, and I am going to take this at face value.  I am going to consider that, when he quotes Ernst Zundel, it is correct.  I give him credit for this.  I am not going to criticize him.  I am not going to say, "But, if you go out of the text, if you go and see what Zundel said elsewhere and so on, you will see that you are right or wrong."  No, I am going to stick to the text.  To stick to a text is very difficult.

         Q.   What does your analysis attempt to achieve in relation to meaning?

         A.   I am going to try to find the meaning.  This is not something quite common.  Take the example of poets.  We are taught in France that, when it is poetry, you must not try to understand.  I say that is nonsense.  I have always tried to understand.  There cannot exist any good reason not to try to understand.

         Q.   In the work on Rimbaud, did you get any critical acclaim for the analysis of the text you analyzed?

         A.   Yes, because there was an affaire Rimbaud which lasted quite a long time.  There were many, many articles and so on in Le Monde, for example.

         Q.   What is Le Monde?

         A.   It is a kind of semi-official ‑‑ something like The Times.

         Q.   Of...?

         A.   In France.  It is a semi-official newspaper.  We call that a reference newspaper, which does not mean that they say the truth, of course.  It is supposed to be the best newspaper in France.  Le Monde is something!

         There were many things in Le Monde about this story because it was totally new, totally new.

         Q.   What was totally new?

         A.   What I discovered about Rimbaud.

         Q.   What was it?

         A.   Those texts of Rimbaud, not only this one called "Vowel" ‑‑ this was the title of his most famous poem.  It is perhaps one of the most famous in all the French literature.  I analyzed this and analyzed many other cryptic texts, and what did I notice?  That the people making comments were extremely metaphysical, extremely sophisticated, extremely vague also.  Suddenly, by reading very carefully, I discovered that it was an erotic poem and nothing else, but very sophisticated.  You could see that it was done by someone possessing marvellously French language and also Latin.  This is context; this is not text.

         Rimbaud had written many Latin poems.

         Q.   Was it critically acclaimed in France at the time, other than in Le Monde, by the academic community at all?

         A.   Yes, of course.  I could say that it was acclaimed in a way by a man called Etiemble.  This man was, if I may say so, the owner of Rimbaud; I mean, he was a professor at the Sorbonne, and you could not write anything about Rimbaud without his benediction.  He was very upset by what I discovered, by the affaire Rimbaud.  In 1968 he wrote a book on my affaire.  As I had signed first my book with only the letters "R.F.", Robert Faurisson, and not my name ‑‑ I was a professor, and I did not want to give my name at that time.  He said that I had made the French people mad and that I was as famous as Mrs. B.B., Brigitte Bardot.

         Q.   You wrote another book in 1972; is that right?

         A.   Yes.

         Q.   Which one was that?

         A.   "A-t-on lu Lautréamont?"  There is a spelling error.  We need an "r" after the "t".

         Lautréamont ‑‑ in fact, his real name was Ducasse.  It was my thesis.  I had a viva voce about this.

         Q.   What is a viva voce?

         A.   When you want to have your doctorate, you have what we call a viva voce with a jury of four or five or six people, and you have to answer the questions.  At the end of it they give you the doctorate or they don't give it to you, with such and such a grade.

         Q.   I would like to know something about that doctorate.  Was your viva voce unusual?

         A.   Quite unusual, since it happened in the Sorbonne.  It lasted eight hours, but you have to take out something like two hours.  It was in a very well-known room which we call the amphitheatre of the Sorbonne.  There were plenty of people.  On the tape you could hear them 120 times in six hours.  They knew that there would be something happening because I was bringing something new, something which is rare. 

         In the journal, Le Monde, there was a report about my viva voce.

         Q.   Is that common?

         A.   Really not, it is not common.

         Q.   Did you get your doctorate?

         A.   Yes.

         Q.   Was there any grade attached to it?

         A.   Yes.

         Q.   What was it?

         A.   The highest one, but you must know something.  In France it is very rare to refuse a doctorate, very rare, because the people of the jury

‑‑ there is one who is responsible and who says, "Yes, you have the right to have a viva voce."  It is very rare when it is not given.

         Q.   Is it common to get the highest possible grade?

         A.   Also, yes, I would say it is common.  Once you have finished your work ‑‑ it is very difficult to get to it, but once you have the right to have your viva voce, normally you have this.

         Q.   You wrote another book after that in 1977, I think.

         A.   Yes.  It was about 17 very difficult poems of Nerval.

         Q.   With regard to Lautréamont, were you using text and document analysis in that process?

         A.   Really, yes.  What I realized is that people who had written about Lautréamont had really not read carefully at all his text.  It was absolutely not what was said usually about Lautréamont, but we have no time to get into this.  It was totally new.

         Q.   Your analysis was new.

         A.   No, the result was new.

         MEMBER DEVINS:  Was Lautréamont also a poet?

         THE WITNESS:  That is a very difficult question.  Some people consider that he was; some others say no because it was in prose.  But we have what we call poetic prose.  In fact, it was a kind of satire.  It was not surrealist in 1870.  It was not metaphysical or diabolical.  It was a mockery; it was a satire.

         But you had to read it very carefully because there were plenty of tricks and traps.  If you did not read it very slowly, you could not see it.

         I must say that for some time, reading Lautréamont, I didn't see this.  We have many texts in the entire world of literature which are taken seriously, and it might be only a joke.  We have this in Latin also.

         MR. CHRISTIE: 

         Q.   So you took some care to analyze the language to determine its true meaning.

         A.   Yes, but without sophistication.  What I am doing, anyone could do.  We have a kind of spirit because of the university, because of the professors.  People tend to be too complicated.  They don't go straight on to the text itself.

         I pretend that what I do, anyone could do.  It is not a question of intelligence; it's a question of character.  You must be courageous enough to jump into the swimming pool and to swim, and you don't make speeches before and no theory.  You show if you are able or not to swim; that's it.

         Q.   My learned friends have just noted that anyone could do it, and it is not too complicated; it is only a question of character.  Does that mean that we don't need experts to assist us in this regard?

         A.   I think we need perhaps what we call experts to ring a kind of bell and to say to the people, "You think that you understand what you have been reading once or twice.  I am not sure.  Please re-read it."  This is what we call revisionism.  For me, there is absolutely no difference between text and document analysis and revisionism.  It's the same thing.  Revisionism is to revise, to go back, to check, to double check.  You think you have understood.  No, you are wrong.  Go back.  Go back to school.

         Q.   You wrote a book in 1977 on Nerval.  What were you involved with there?   Was there anything to do with text and document analysis?

         A.   You mean in 1977?

         Q.   Right.

         A.   Exactly, this was the case.  The reason was that I discovered that Nerval ‑‑ this was a quite different result ‑‑ had expressed himself ‑‑ the man is usually very clear.  This is context, when I say "usually."  Usually, he is very clear.  In those 17 poems, except one, he is extremely cryptic, and I discovered why he was cryptic.  It was absolutely necessary.  He was hiding in those poems political views which were difficult to express at that time.

         Q.   At what time?

         A.   In 1855.

         Q.   Why were they difficult?

         A.   Because it was at the time of Napoleon the Little.

         Q.   So your analysis of those poems developed an understanding of their meaning that was not common at the time.  Is that what you mean?

         A.   That's right.  I can say that it was a total silence; nearly no article; no affaire Nerval; no affaire Faurisson.  It was a silence, for some good reason that I cannot say.

         Q.   You never know; you might be able to later.  We will see.

         A.   We have to be prudent.

         Q.   You wrote a book called "Memoire en défense."

         A.   Yes, "Mémoire en défense.  Contre ceux qui m'accusent de falsifier l'histoire."  It means "Memory in defence against those who accuse me of falsifying history," and then the question of the gas chambers.  The foreword was by Noam Chomsky.

         Q.   What happened as a result of that book?

         A.   It was written first for a tribunal, because I was accused, because of my articles in Le Monde, of saying that the Nazi gas chambers could not have existed for physical and chemical reasons ‑‑ very easy to understand.

         I wrote this and I had a trial.  In 1981 in the first instance I was condemned.  Then I made an appeal, and I can give you the result of the appeal.

         Q.   Can you quote accurately from the judgment of the appeal respecting your accuracy, et cetera?

         A.   Yes, I have it in English here, but it is too long.  May I summarize?

         In the first instance the tribunal said that it was not permitted to say that Faurisson was a falsifier, but Faurisson ‑‑ how could you say that ‑‑ without being a Nazi, could be of some use for the Nazi people, and so on, and so against the Jews.  So I was condemned.

         In appeal, on the 26th of February, 1983 the Court of Appeal First Chamber in Paris ‑‑

         Q.   What does First Chamber mean?

         A.   You have something like 10 chambers; I suppose 10, I am not sure.  "Chamber" means the same thing as perhaps here; I don't know.

         Q.   Is it a superior court?

         A.   Yes, of course.  To make it short, they said that Faurisson on the problem of the gas chambers ‑‑ they said "problem" meaning they existed or they did not exist ‑‑ that Faurisson had arguments.  They didn't say bad or good.  In his writing there were four things:  one, no frivolity; two, no negligence; three, no deliberate ignorance; and, four, no lies.

         The conclusion was that, therefore, anyone in France has the right to say that the Nazi gas chambers existed or did not exist.

         I was nevertheless condemned.  It is extremely difficult for me to summarize the reasons given by the judges ‑‑ difficult.  It seems to me that I took the opportunity, having a very good argument, to develop some views that could be offensive for some people, and they also added something which was terribly wrong.  They said that I had never found even one word to express my compassion for the people who had suffered.  This was totally wrong.  The judges had this under their nose.  My compassion was exactly expressed by the word "compassion" in the newspaper.

         I was condemned.

         Q.   What happened to Noam Chomsky?  Do you know?

         A.   Noam Chomsky is an American.  He is the son of a rabbi.  He wrote about many, many things.  He is a linguist; he is a specialist of some political matters.  Noam Chomsky wrote not exactly a foreword; he wrote a letter and said to Pierre Guillaume, the publisher, "Do with it whatever you want."  Pierre Guillaume said, "I am making out of it a foreword.  I am putting it at the beginning of the book of Faurisson."

         He went to so much trouble that everywhere Chomsky goes to a conference, he writes down that every time people come and say, "What about you taking the defence of Faurisson?"  Every time he answers, "I have only taken the defence of his freedom of speech."

         Q.   In respect to your next book, "Réponse a Pierre Vidal-Naquet" was in what year?

         A.   1982.

         Q.   What was that about?

         A.   It was about the question of the genocide and the gas chambers.  Pierre Vidal-Naquet was a professor of Greek history who wrote some texts extremely violent against me, and I made what I called a response on, I think, 58 points, one by one.  It was about this problem of the gas chambers.  It was in 1982, and it was finished for the day of a very big international conference in the Sorbonne which was made against me and against the revisionist people in France.  We had no right to attend this conference.

         Q.   Have you written another book in 1994 in response to Jean-Claude Pressac respecting ‑‑

         A.   On the problem of the gas chambers, that is right.  Jean-Claude Pressac wrote many articles and at least two books.  I wish I could show now one of his books.  Is it possible, sir?

         Q.   Probably not.

         A.   Physically, to show how big is the book and the title of it.  It is a matter of not even one minute.  I think you have never seen in your life a book like that, so it is interesting. 

         This is a perfect example of text and document analysis.  I made an analysis of a book of 564 pages, big like this and like that.

         Q.   I would ask you to show the book and demonstrate by reference to text and document analysis what you derived from that to exemplify your process.

         A.   Thank you.

         Q.   If you can do it in four minutes or less.

         THE CHAIRPERSON:  For the benefit of counsel, we intend to sit until 5:00 each day this week except today.  I made the mistake of not coming down last night, and I took a six o'clock train.  I am going to suggest that we rise at 4:30 just for today.  This obviously is embarking on a ‑‑

         MR. CHRISTIE:  It won't take long.

         THE WITNESS:  I am able to be very short.

         MR. CHRISTIE: 

         Q.   What is this book that you want to demonstrate?

         A.   This is the book, "Auschwitz:  Technique and Operation of the Gas Chambers" by Jean-Claude Pressac, published in 1989.

         Q.   How long have you analyzed that book?

         A.   A few weeks or months, not more.  May I show it to ‑‑

         Q.   I am sure they have seen it.

         A.   I am not sure.  It is a very rare book, in fact.  It is a book about which we are told that the book exists, but don't go and see it.

         Jean-Claude Pressac ‑‑ I am going to show you what is text and document analysis.  "Auschwitz:  Technique and Operation of the Gas Chambers."  I don't want to read this title.  I am going to take the book at the first word, and I am going to finish it on page 564, at the end of it.  I am going to analyze the content, and after I am going to the title.

         What I can tell you is that you have hundreds of photos, hundreds of sketches, of drawings, and you don't have one photo of a Nazi gas chamber.  When you go back to the title, you see that it is very surprising because you are expecting not only gas chambers but their technique and their operation.  I can tell you that there is nothing in it, not even what you are supposed to see in Auschwitz or in other places.

         In 1993 he wrote this book in French, published also in English, in German, in many languages.  The title is surprising: "The Crematories of Auschwitz: The Mass Murder Machinery.

         You forget this.  You look inside.  You look at the 60 photos.  There is not one about any gas chamber.  As an expert in text and document analysis, I can explain to you why many readers would say, "I have seen the book of Pressac.  I have seen gas chambers.  I have seen photos.  No.

         This was my response to Jean-Claude Pressac.

         THE CHAIRPERSON:  We will resume at 10 o'clock tomorrow morning.

‑‑- Whereupon the Hearing was adjourned at 4:31 p.m.

    to resume on Wednesday, December 16, 1998

    at 10:00 a.m.