Toronto, Ontario

‑‑- Upon resuming on Monday, December 15, 1997

    at 10:36 a.m.

          THE CHAIRPERSON:  Good morning, ladies and gentlemen.

          We will deal first with the application for interested party status by the Canadian Association for Free Expression Inc.  Is Mr. Fromm here?  Would you come forward, Mr. Fromm.

          You don't have counsel?

          MR. FROMM:  I don't.

          THE CHAIRPERSON:  Do you intend to if this application is granted?

          MR. FROMM:  No.

          THE CHAIRPERSON:  Please speak to this matter so that other counsel can address it as well.


ARGUMENT ON BEHALF OF CANADIAN ASSOCIATION FOR

FREE EXPRESSION INC.

          MR. FROMM:  Members of the Tribunal, my name is Paul Fromm, and I am a Director of the Canadian Association for Free Expression which is incorporated under the laws of the Province of Ontario as a non-profit, educational organization.  We were incorporated by letters patent in 1981.

          Our brief is to try to maximize freedom of speech and expression and association, protections of the Canadian Charter of Rights and Freedoms.  To that end, we publish a regular newsletter on freedom of speech issues. 

          We have presented briefs to various government bodies, including the Ontario Legislature when it was considering amendments to the Ontario Human Rights Act in the late 1980s.  We have made submissions to federal government bodies, including the federal government when it was considering regulations in respect of customs powers to interdict so-called pornography or hate literature.  We have made numerous submissions to the provincial legislature in Ontario and to the House of Commons with regard to free speech matters.

          In my own right, I have written extensively on this matter and produced a broadsheet on what we call customs censorship.  I have produced a somewhat longer paper on attacks on teachers with regard to freedom of speech.  In addition to that, I have written a number of articles, including one published recently in the United States in a publication called Conservative Review, which dealt with what we saw as a somewhat capricious and arbitrary behaviour of Canada Customs with regard to seizure of material that was deemed to be either pornographic or to constitute hate.

          We see ourselves as a non-partisan group.  We have backed, for instance, in British Columbia the complaint of Little Sisters Book Store, a book store that deals primarily with gay and lesbian literature.  They have run into repeated problems with Customs Canada.  In Ontario we have backed, for instance, the efforts by Minister Louis Farrakhan to come to Canada.  His efforts to enter this country were under attack by groups that appeared to support censorship.  Although many of our members would probably not have much in common with Minister Farrakhan's beliefs, we lobbied Madam Robillard, the federal Minister of Immigration, to permit Minister Farrakhan into the country.

          We have also taken quite a strong stand in opposition to the federal government's legislation to curtail retail advertising of tobacco products.

          We would feel that we are non-partisan in our support for freedom of speech and freedom of expression.

          Why we seek interested party status is that we feel that these issues will come very much before your Tribunal.  We have a long experience in freedom of speech issues, and we feel that that is something in which we might be of some assistance to you in making your decision.

          On a personal basis, I have particular compassion for people who find themselves under attack for a non-violent expression of their views, having myself been victimized by at least one of the groups that already has interested party status before your Tribunal.  I am a former teacher, a person who has a B.A. in English Literature and an M.A. in English Literature and Linguistics, a B.Ed. and further graduate studies mostly in Linguistics.  I suspect that on a personal basis I might be of some assistance in questioning witnesses from that point of view in terms of the precise meaning of language.  I bring a background not just as a historical linguist but as a person with particular training in analyzing text for meaning.

          Those are my submissions to you.

          THE CHAIRPERSON:  Just a couple of questions, Mr. Fromm.

          Your written submission is brief.  There is no mention of the membership.  What is your membership?

          MR. FROMM:  Twenty-five hundred.

          THE CHAIRPERSON:  That is from where?

          MR. FROMM:  That is across Canada.

          THE CHAIRPERSON:  Does it have a board of directors?

          MR. FROMM:  It does.

          THE CHAIRPERSON:  How many on the board?

          MR. FROMM:  Five.

          THE CHAIRPERSON:  Are they elected by the membership?

          MR. FROMM:  No.

          THE CHAIRPERSON:  If you were given status, would you intend to be here for the duration of the Hearing?

          MR. FROMM:  That would be my intention.

          THE CHAIRPERSON:  Are you aware of the conditions under which other intervening parties have been allowed status?

          MR. FROMM:  I am not.

          MEMBER JAIN:  What is your membership fee, sir?

          MR. FROMM:  Fifteen dollars a year.

          MEMBER JAIN:  Why at this stage?  Why not earlier?

          MR. FROMM:  I personally did not have the time; I had other commitments at your previous Hearings.  I was only able over the summer to determine what the procedure was.  We were under the impression that we would have to retain counsel.  As we don't get government grants, our means are fairly modest.


          THE CHAIRPERSON:  Does anyone wish to speak in support of this application?  Mr. Christie...?

          MR. CHRISTIE:  I would, but I would like to do so after the other application, if I may.

          THE CHAIRPERSON:  I am going to hear from those who are opposing this application, so perhaps you should speak in favour of it now.

          MR. CHRISTIE:  All the more reason why I would rather hear what they have to say, since I will be the only one supporting it.  They certainly out-number us.

          THE CHAIRPERSON:  Are we going to assume that?  Maybe someone else is supporting it.

          In any event, we will hear from people who may be opposing this application.  Does anyone wish to speak to this application?  Mr. Freiman, please.

          MR. FREIMAN:  The Commission will speak to oppose the application but, in my submission, it is proper for those who support the application to make their views known first.

          THE CHAIRPERSON:  I have suggested that, but Mr. Christie ‑‑

          MR. FREIMAN:  It seems to me improper to allow him to arrogate to himself the right to respond.  If he is not going to speak now, he should not be speaking on this application.

          THE CHAIRPERSON:  Let us hear from you now, Mr. Christie, please.

ARGUMENT ON BEHALF OF THE RESPONDENT


          MR. CHRISTIE:  The present situation in these proceedings, as evidenced by the last remarks really, has all the moral and intellectual balance of a gang rape.  We have four lawyers for the Commission against our position.  We have the Canadian Jewish Congress who came in on October 14.  No one questioned them about why they were late.  No one asked them what their membership fee was.  No one asked them whether they had an elected board of directors.  No one asked them anything about their activities to question their rights to be here in the same sense as the last person was asked.

          B'nai Brith is another intervenor.  They are not supporting our position; I am sure of that.

          The Canadian Holocaust Remembrance Association is not supporting our position.  The Simon Weisenthal Center is not supporting our position.  The Toronto Mayor's Committee is definitely a complainant, a party; they are against us.  Sabina Citron has her own standing in personam, I suppose, as a complainant.

          I count six of those, and each of them has one or two lawyers.  Then there is Mr. Zundel, myself and my associate. 

          What could be the harm?  When the ultimate arguments are made, it will be like the waves of the sea.  The roar from these many-sided supporters of the complaint will overwhelm us, without a doubt.  Even with two intervenants of a pathetic nature, there will be no need to fear that there will be anything like equality.  There is no need to fear that we will be given a chance to win.  The people who have so much interest and so much influence to be here need not fear.

          It might create a slight appearance that there is an attempt at balance, and that would not be a bad thing.  It would create an understanding that the powers that be are concerned about balance and have a desire to allow it.

          In my submission, if someone were to come along at this late stage, who had a representative capacity on behalf of Internet service providers, I would say likewise.  If you are going to decide a serious question like the application of the section of the Human Rights Act to the whole subject of the Internet, it would be of great assistance to have somebody who really had experience in the field.  I would be supporting their right, too, because this question should not be decided by such an unbalanced situation as presently confronts you.

          I don't think, if either or both of the applicants who are now attempting to intervene or attempting to be parties were allowed, you still would have anything close to a clear insight into the complexity of the issue or the severity of the consequences if it is interpreted wrongly.

          I would respectfully suggest that, really, there is no reason why in principle or in practice these two intervenants should not be allowed to intervene.  If they are denied intervention ‑‑ not that they can have any great expertise, but they have another point of view, obviously diametrically opposed to those six-or-so other groups ‑‑ there is really nobody else who has even offered to attempt to defend one of the most important principles that we have to live by, in my submission.  It should not really be just one man's fight or one lawyer's fight, as it apparently is and has been very often in the past.

          It would be far better, in my submission, if the appearance of the imbalance were corrected to some extent, and it would not do any harm to the proceedings.  After all, if you restricted the right to cross-examination to exclude other than parties or if you restricted the intervenant to making final submissions, that really does not impede the proceedings in any way.  All these people who have been sitting here, most of them just watching and listening, no doubt will make their views known at the end. 

          When it happens, of course, you will have six points of view against us, and at least one of them is the result of four lawyers working together on it.  I mean, really!  In the old days of fair play, it would have been seen for what it is.  It is so unbalanced as to be unfair.  Even if it were only Mr. Zundel's rights at stake, it would be wrong.  It is not just Mr. Zundel's.  It is the whole issue of freedom on the one hand and state control on the other of an issue that is complex and technical and difficult. 

          Really, if I were in your position, I would be suggesting that perhaps you, yourselves, should call somebody with an objective expertise in the whole field.  It is really that serious and that significant.

          Thank you for hearing me.


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

ARGUMENT ON BEHALF OF CANADIAN HUMAN

RIGHTS COMMISSION

          MR. FREIMAN:  I would ask that my colleague present a number of cases that I will briefly refer to you.  I already have before you from previous applications the case law that is relevant, but there is a couple of cases that deal specifically with matters that are at issue this morning.

          I want to start by saying that there seems to be a confusion in the arguments we have heard this morning.  I make no comment about the tone of the arguments, but the content of the arguments seems to confuse qualifications to assist the court as to a witness, whether a fact witness or an expert witness, and qualifications to be added as an interested party.

          I start from the proposition that there is no elaborated case law under specifically Federal Court jurisdiction, but the cases that have considered the issue have to some extent started out from rule 13 in the Ontario Rules of Civil Procedure.  The principles that are found there are principles that are also applied by most, if not all, of the courts that have considered the issue.  I have given you a copy of the relevant rule, but it is also discussed in two cases and articulated in those two cases, the first being the Dieleman case decided by Mr. Justice Adams in 1993 and the second being the Doe and Information and Privacy Commissioner case decided by Mr. Justice Steele in 1991.

          An opportune place to start is right at the end with the conclusions reached in Dieleman at page 39.  With the application by the Canadian ‑‑ I have forgotten the name of the group, but the acronym is CAFE, which Mr. Fromm represents.  Its intervention is clearly designed to be an intervention as a friend of the court and as a public interest group.  Mr. Justice Adams said this about that kind of intervention:

          "In summary, where intervenor status is granted to a public interest group, either as a party or as a friend of the court, at least one of the following criteria is usually met:

(a) the intervenor has a real, substantial and identifiable interest in the subject matter of the proceedings;

(b) the intervenor has an important perspective distinct from the immediate parties; or

(c) the intervenor is a well recognized group with a special expertise and with a broad identifiable membership base."

          It is interesting that in this case the proposed intervenor group was a group calling itself the Canadian Centre for Law and Justice which described itself as a non-profit civil liberties association whose object was to defend fundamental human rights and religious and civil liberties.  It was attempting to intervene in a case dealing with abortion rights and it identified itself as a promoter of pro-life and pro-family causes.

          Much like Mr. Christie's characterization of the reasons for granting status, it was urged on the court at that point that it would add to fair play to add a group on their side of the argument, especially a group with connections to the American parent group that could assist in the funding.

          The court decided that the proper way of approaching it would be to look at the specific interests, to look at the issue of a perspective distinct from the immediate parties and to look at the nature of the intervenor group.  There is some interesting discussion at page 38 of the reported case.

          Before I go to that, perhaps I should deal with the first one which is a real, substantial and identifiable interest in the subject matter of the proceedings.  That requires that the person be immediately and adversely affected.  There is really no issue in this case that the group represented by Mr. Fromm is itself adversely affected in a way that is different from that of any other member of the public or any other group with an interest in the public.

          THE CHAIRPERSON:  It claims to be a body that is interested very simply in the issue of freedom of speech.  Isn't that the focus of what the presentation is about?

          MR. FREIMAN:  That's right.

          THE CHAIRPERSON:  It is a question of whether this organization should be heard on that issue.

          MR. FREIMAN:  That's right.  Its interest in freedom of speech does not qualify under the first branch of the test as a real, substantial and identifiable interest in the subject matter of the proceedings.  In fact, it is quite similar to what the Reverend William D.F. Morris in that same case had said about himself, that he was interested in this matter and had made a lifelong study.  The Court simply said at page 37:

          "I am much in sympathy with Mr. Morris, and I think it admirable and desirable that concerned citizens should devote time and energy and substance to the advancing of causes in which they believe.  However, I am not persuaded that his motion can be properly brought within the ambit of Rule 13 without giving to that rule an interpretation much broader than it has heretofore received.  Mr. Morris has not demonstrated either an interest in the subject-matter of the proceeding, ‑‑

In this case, that would be the Zundelsite.

"‑‑ or that he may be adversely affected by the judgment, save as any individual Canadian might be affected.  However desirable it might be that every citizen should be heard from, it is obviously impractical to give that effect to the rule."

          So it is not under the first branch.  The question then is:  Does the intervenor have an important perspective distinct from the immediate parties?  That is where I was going to get to page 38. 

          The Stadium Corp. case was a case dealing with the use of exotic animals in some of the events that the Skydome Stadium was to use.  The Ontario Society for the Prevention of Cruelty to Animals had asked to participate.  At the middle of the page, opposite "d", the court held:

"‑‑ the Ontario Society for the Prevention of Cruelty to Animals (the Society) sought to participate in a challenge to a municipal by-law restricting performances involving exotic animals.  In ruling against the Society's intervention, Archie Campbell J. concluded that the proposed intervenor would not 'add significantly to the legal position' of the other parties representing similar viewpoints and interests."

          In my submission, we have not heard anything today that would indicate that the position being advocated by the group represented by Mr. Fromm is in any way different from the position being advanced by Mr. Christie's client.  In fact, to the contrary, the arguments being raised by Mr. Christie take it as a starting point that the perspective will be identical and that the arguments will be similar.

          The court went on to say:

"‑‑ on the basis of the material filed to date, there is every reason to believe that the issues of freedom of religion, freedom of expression and the ramifications of abortion from both pro-life and pro-family perspectives will be adequately canvassed by the existing parties.  The CCLJ has also stated that it has resources which the defendants may not have."

That was not held to be sufficient.

          In fact, when the Canadian Holocaust Association in the Finta case asked for status, it was denied in that case because it was held that there would be adequate representation for that same point of view.

          We go farther then and ask:  Is the intervenor a well-recognized group with special expertise and a broad, identifiable membership base?  In my submission, the answer is:  No, it is not a group that has been recognized.  It has never been granted intervenor status in any previous proceeding.  We heard this morning that it is, in fact, a group of five people who solicit contributions and that for $15 you can become a member, but you have no vote in terms of the direction.  In my submission, what the evidence really shows is that it is a group of five people who are asking for intervenor status in these proceedings and that that would be inappropriate.

          Overall, just to bring the matter full circle, the issue really comes down at the end to also taking into account the interest of an expedient disposition of this matter and of not sidetracking us.  Much of what we heard, in my submission, indicates that there is a significant risk, bordering on a probability, that adding this particular party will expand the lis, will expand the nature of the arguments to be presented.  We have already heard of personal involvement that the representative of the proposed intervenor has had with similar issues.  We have heard the kinds of thing that he proposes to bring forward.  In my submission, what we will get is an expansion of the issues, an expansion that is unwarranted and unnecessary.

          If the group represented by Mr. Fromm has interesting and important submissions to make on linguistic matters, Mr. Fromm can be called as a witness.  If it has a particular perspective of an evidentiary nature that would be of assistance to the Tribunal, Mr. Fromm can be called as a witness.  There is nothing to indicate that there will be any benefit to adding Mr. Fromm and his group, especially at this late date, when the Commission's case is almost in, to add to and to expand the issues and potentially to derail the proceedings.

          THE CHAIRPERSON:  Thank you, Mr. Freiman.  Mr. Rosen...?

          MR. ROSEN:  I am sorry, I didn't know whether you wanted to hear the complainants first.

          THE CHAIRPERSON:  Mr. Armstrong, please.

ARGUMENT ON BEHALF OF SABINA CITRON


          MR. ARMSTRONG:  I will be very brief, Mr. Chairman and Members of the Tribunal.  We adopt what counsel for the Commission has just said and simply add to it, in response to what Mr. Christie said.

          Mr. Christie would have this as a kind of mathematical exercise.  You just add up the number of heads on one side of the table and try to equal them with additional heads on the other side of the table.  With the greatest of respect, the courts have resisted that kind of argument from Mr. Christie before.  They have resisted it in the Supreme Court of Canada.

          In my respectful submission, you ought to reject that kind of notion here.

          THE CHAIRPERSON:  Mr. Earle, please.

          MR. EARLE:  Mr. Chairman, on behalf of the Mayor's Committee, we are content to adopt the submissions of Commission counsel.

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

ARGUMENT ON BEHALF OF B'NAI BRITH


          MR. KURZ:   Mr. Chair, I, in effect, have three things to say and I will expound on them a bit:  first of all, that the application does not meet the standards set out in the cases for addition as an interested party or as intervenor; that the addition of the proposed interested parties, in particular Mr. Fromm, would unnecessarily lengthen and complicate these proceedings; third, that this application, like that of Mr. Lemire, is just an extension of Mr. Zundel himself and is an attempt, in effect, to do what Mr. Christie talked about, to balance the scales in Mr. Zundel's favour, that somehow or other his case would be buttressed by just having more people saying the same thing.

          Mr. Christie has admitted that there is a lack of expertise by Mr. Fromm, but says that the reason to allow him is the appearance of balance.  Mr. Armstrong has pointed out that that certainly is not one of the guiding principles that, in my respectful submission, should be guiding you.

          Section 50 of the Act makes it clear that this is a discretionary decision by the Tribunal.  Certainly in the cases that the present interested parties put before you, it is clear that there is no clear test and that what you can refer to is the other intervention tests.  In those cases they really look to three issues:  interest; expertise; and a unique perspective.  Are they, through this unique perspective, going to help the Tribunal?

          Starting with the interest, from Mr. Fromm's submission I was not clear whether he is applying on his own behalf as well as on behalf of the organization.  In his letter he says he is applying in both capacities, so I will address them both briefly.

          He has indicated no personal interest in this matter.  He is not going to be bound by any decision made by the Tribunal.  Simply because he is a defrocked teacher who has been fired by the Peel Board of Education for his association with Nazis does not give him standing to come here.  Those are not issues before this Tribunal, and nothing that the Tribunal does will affect Mr. Fromm personally.

          His organization claims to be a public interest group but, as Mr. Freiman pointed out, they have never been accepted anywhere by a court, a tribunal or by a commission of inquiry as an interested party or an intervenor.  That puts him in distinction to every other interested party before you who all have histories of being accepted as being responsible parties who can be intervenors or interested parties.

          Certainly anyone can write letters to the government.  Anybody can support people, but there is a step between that and actually being accepted by tribunals as being able to assist them.  That has never happened for Mr. Fromm's organization.  Certainly in my view and in my respectful submission, there is a confusion between an interest in a subject and a public interest.  This is a group with 2,500 members, Mr. Fromm says, which does not elect its board of directors and which is coming to you for the first time asking to be recognized in this way.

          With regard to expertise, Mr. Fromm and his group fall down even more than that with regard to the issue of interest.  As I said, Mr. Christie has admitted that they lack expertise ‑‑

          MR. CHRISTIE:  I didn't say that.

          MR. KURZ:  That is what I heard Mr. Christie say, Mr. Chair; he can respond.

          Certainly there is no evidence that as a group they have expertise in the issues that are before the Tribunal.  Mr. Fromm's personal expertise is irrelevant, whether he is an expert or not ‑‑ and I am not going to attempt to address that issue.  If he is an expert linguist, certainly Mr. Zundel can call him to testify as an expert in that area.  Certainly this organization has never demonstrated any expertise in what I submit are the three main issues before the Tribunal:  first of all, whether Mr. Zundel is responsible in law for the materials that are before the Tribunal; second, whether the Tribunal has under the Canadian Human Rights Act jurisdiction over the Internet; and, third, which I suppose is really an extra issue, whether the law articulated in Taylor is changed by the Internet.  That would be the free speech issue, but it is not simply a free speech issue.  It is whether the law of Canada, as articulated in Taylor ‑‑ that is, allowing the limitation of freedom of speech in circumstances such as this ‑‑ is changed simply because of the medium of the Internet.  Finally, we have the issue of whether Mr. Zundel's materials in themselves are hateful.

          I would suggest that there is no evidence before the Tribunal that Mr. Fromm's group can be of assistance in any of those areas.  There is certainly no computer expertise, no involvement in those kinds of issues that have been put forth.

          Finally, with regard to unique arguments, there is no indication of what Mr. Fromm will have to say other than "Me, too.  Yes, I am in favour of freedom of speech."  Unlike the proposed intervenors, Mr. Fromm had nothing to say to the Tribunal about what is novel and unique about his contributions.  If you think back to Madam Justice McLachlin's comments in the Finta case, in which a number of intervenors were then before the Supreme Court, one of the questions that for her allowed some parties in and did not allow some parties in and even limited the submissions of parties in the Supreme Court of Canada was:  What do you have to say that is unique?  If you don't have something to say that is unique, you can't say it.  Let the other parties say it.

          That ties into the issue of the timing of this application and the coincidence of this application and that of Mr. Lemire.  Somehow or other Mr. Fromm explained simply that he has applied at this time because now he suddenly has time and he didn't have it before.  But at the same time he said that he found this out in the summer.

          The coincidence is important because both Mr. Fromm and Mr. Lemire wrote letters to the Tribunal on the same date, November 28, 1997.  Out of the blue, two different people are coming to the Tribunal and saying, "We want to be added as parties, and we have something unique to add."

          THE CHAIRPERSON:  We have had other late applications.

          MR. KURZ:  Not only are they late, but why both of them on the same date?  It is a remarkable coincidence that is not explained in any way.  Why wasn't one ‑‑

          MEMBER DEVINS:  Mr. Kurz, are you alleging bad faith of some sort?

          MR. KURZ:  What I am saying is that these applications ‑‑ I don't want to use the term "bad faith."  What I am saying, and this is what I have said in my written submission as well, is that both of these applications are really Mr. Zundel's left hand trying to help Mr. Zundel's right hand.  Whether that is bad faith is not something that I am going to say, but I am saying that they are simply an attempt to rectify what Mr. Christie sees as an ill.  Mr. Christie has been saying all along that it is terrible that there are all these lawyers on one side and poor Mr. Zundel and his two lawyers on this side.  Somehow or other, the appearance in the scales of justice, certainly from the point of view of Mr. Christie, is:  Maybe we can put a couple more bodies on this side, and that will buttress our case.

          I am submitting to you that it is quite the opposite.  Allowing these extra people in ‑‑ and the important thing as well is that there is no lawyer.  Mr. Fromm will simply be here on his own, and that is an issue that you are going to have to deal with with Mr. Lemire as well.  They are simply here on their own.  Their cross-examining, say, Mrs. Zundel is something that you have to consider and whether that is going to assist the Tribunal.

          For all those reasons, I am opposing the application.

          THE CHAIRPERSON:  Mr. Rosen, do you have some fresh perspectives to offer us?

          MR. ROSEN:  All I was going to say, Mr. Chairman, is that I support Commission counsel.  The only thing I was going to direct your attention to was the wording of section 13 and to say that, when you look at the issues that have to be decided, given the decision in the Supreme Court of Canada in Taylor, there is no free speech issue for you to determine.

          That is my position.

          THE CHAIRPERSON:  Mr. Christie ‑‑ I am sorry, did I miss someone?

          MS FAVREAU:  On behalf of the Canadian Jewish Congress,  I just want to say that we adopt the submissions that have been made beforehand.

ARGUMENT ON BEHALF OF THE RESPONDENT


          MR. CHRISTIE:  If I could be allowed to say a few things in reply, first of all, there is always a first time for every intervenant.  That does not mean that what they have to say is any less important in terms of public interest.

          I did not say there was no expertise or any lack of expertise in Mr. Fromm.  I said there was a serious issue upon which there is a lack of expertise technically on the whole subject of the Internet.  That may remain to be seen.

          I was not speaking about getting someone on our side of the table.  We don't have a side of the table.  We are surrounded.  They are on that side, that side and that side, so we don't have a side.  We have a little corner, to be precise.

          When the Supreme Court was speaking about this issue in the case of Finta, Madam Justice McLachlin was dealing with the court.  When I was in the Supreme Court last December 10, my learned friend Mr. Pentney for the Canadian Human Rights Commission acknowledged that a Human Rights Tribunal is not limited as a court.  The Human Rights Tribunal is not a court.  They don't have the jurisdiction of the courts, and the courts don't have the jurisdiction of a federal Human Rights Tribunal.  They are viewed as unique expert panels to deal with issues that are basically social issues.

          The rules of procedure of the Tribunal are its own to make.  It does not have to accept or exclude evidence that courts would otherwise accept or exclude.  It does not have to follow the same procedures as courts.  It is not bound by the rules of evidence.  It is not a court.  It is a tribunal with a unique expertise.  The Canadian Human Rights Commission has conceded that the Federal Court does not have jurisdiction, for example, to make an order under section 13(1).  That issue in the McAleer case was before the Supreme Court, and it was reserved.

          It seems to me, with all due respect, that it is a little inconsistent to say now, "Oh, but you can act and comply with the rules of court, section 13(1)."  This is a far broader inquiry than was ever contemplated by a court proceeding.  You can hear and receive almost anything you like in terms of evidence.  Hearsay is admissible, if you wish.  The rules of evidence are, shall we say, flexible.  Why should the rules of court restrict intervention on an issue where free speech is an issue with regard to how broadly one should interpret section 13(1).

          Taylor did not decide section 13(1) regarding the Internet.  Taylor, which I remember quite well, revolved around a telephone answering machine.  Never before has this attempt been made to extend the jurisdiction of section 13(1) outside the country over a medium of communication that is quite unique.

          You are going to be resolving an issue with which free speech is very central and involved.

          THE CHAIRPERSON:  I guess the issue is whether these parties can assist us.

          MR. CHRISTIE:  Right.  I can concede that they may not be the greatest assistance in the world but, if the criterion my friends are seeking to apply to these two ‑‑ and I see that they speak as if they are one, but they are in fact, as I understand it, different.  If that criterion were applied to these intervenants that are already here, how many of them would be here?  They are not different either.   Do you mean to say that B'nai Brith is going to say something different from the Canadian Jewish Council about Ernst Zundel?  I doubt it. 

          I argued that before, and it was quite clear that you said to me ‑‑ well, you ruled.  They got in no matter how they were going to say the same thing. 

          Whoever decided that the CJC was democratic when electing its board of directors?  The last time I examined any of their officers, it was a very different process from anything I recall being viewed as a form of democracy.

          THE CHAIRPERSON:  This applicant does not have the history of any of the former intervenors as revealed by the material filed and submissions made.

          MR. CHRISTIE:  Previous interventions, you are right.

          THE CHAIRPERSON:  Previous interventions and many other factors.

          MR. CHRISTIE:  What other factors?  In my submission, none.  The only difference is perhaps government funding and perhaps previous intervention.  As I said, there is always a first time for every intervenor.  So they have accumulated a series of court interventions.  That does not mean that in this case they should have intervened or that they had anything different to say.

          Those criteria which my friends seek so strenuously to apply against these individuals and groups ‑‑ in the case of Mr. Lemire, it is an individual.  It is very hypocritical to seek so strenuously to object now when they all supported each other before, and there was such a lack of concern in those cases for whether they had anything different or unique to say.


          THE CHAIRPERSON:  I now regret not having accepted Mr. Christie's suggestion that we deal with both at the same time, but I feel I now have to call on Mr. Lemire to come forward.  What is your name?

          MR. LEMIRE:  Marc Lemire.

ARGUMENT ON BEHALF OF MARC LEMIRE

          MR. LEMIRE:  I am applying for interested party status for four reasons.

          The first reason is that my name has been brought up in this Tribunal on numerous occasions, including specifically on Friday, October 17 during Mrs. Zundel's testimony. I would like to read some of the things she said from the transcript of that day.

          Specifically at page 7, she says:

"Then she ‑‑ "

Referring to Ingrid Rimland.

"‑‑ e-mails them to the computer of Marc Lemire in a final stage.  Then Marc sends it out,"

Also on that same page 7 she mentions ‑‑

          THE CHAIRPERSON:  Do I take it that you want to quote from her evidence on the basis that you do not agree with her evidence?

          MR. LEMIRE:  What I am saying is that she is bringing up my name, and I will refer you to the parts ‑‑

          THE CHAIRPERSON:  You understand that you have the right to come here and give evidence, if one of the parties is interested in having your evidence.

          MR. LEMIRE:  Yes.  I am applying because from what she is saying I think I should have representation here.  None of these lawyers represents my interests or my wishes.  I feel that, if my name is being brought up, I should have the ability to represent myself and to speak to issues that she or other witnesses might bring up.

          THE CHAIRPERSON:  Your next point...?

          MR. LEMIRE:  I would like to read some of the other things she has mentioned about me.

          THE CHAIRPERSON:  I am not sure of the purpose in your reading from her evidence.  Are you reading from her evidence to show that you don't agree with her?

          MR. LEMIRE:  I am reading from her evidence to show that she has brought my name up and that I should be able to respond to her allegations.

          THE CHAIRPERSON:  You will have that opportunity to respond to her allegations if you choose to be a witness or if somebody calls you as a witness.  This is not a closed hearing.  You can give evidence and rebut anyone's evidence that you are competent to rebut.

          MR. LEMIRE:  How would I cross-examine other witnesses and then bring up other points of view with regard to other witnesses and introduce evidence?

          THE CHAIRPERSON:  You want to cross-examine witnesses.  Give me the next point that you have.  The first point is that you want to rebut the evidence of Mrs. Zundel.  Is that right?

          MR. LEMIRE:  I want to speak to the allegations, yes.

          THE CHAIRPERSON:  What is your next point?

          MR. LEMIRE:  My second point is that my rights are being ‑‑ in the Consent Order of the Tribunal dated October 8, 1997, which was written by Mr. Taylor, my name comes up in the Consent Order, too.  Thus, my rights will be affected, my constitutionally-protected, Charter rights to freedom of association.

          In the Order it says ‑‑ and, even though this is a Consent Order, I suspect the final order would be, in their submission, something quite similar to this.  In that Order it says:

"This Tribunal orders that the respondent Ernst Zundel, acting alone or in concert with Samisdat Publishers, Marc Lemire, Ingrid Rimland and/or any other individual or organization acting in his own name or in the name of ‑‑"

And then it goes on.  That is basically where my name is mentioned there.

          I would feel that, if there is going to be an order mentioning me, I should be able to have representation during this Tribunal because the ultimate order will affect me.  It will affect my freedom of association rights which are constitutionally protected.

          THE CHAIRPERSON:  All right, Mr. Lemire, that is your second point.  Your third...?

          MR. LEMIRE:  My third point is that I have a certain knowledge of computers, computer networks and the Internet, and I feel that I can add a valuable contribution with regard to the introducing of evidence and making representations to the Tribunal and in cross-examination of witnesses and maybe producing my own witnesses.

          THE CHAIRPERSON:  Thank you.

          MR. LEMIRE:  My fourth point is that I have expertise or knowledge with regard to web sites and how they work and the mode by which people can reach these web sites.  I run a web site already on the Internet myself which has given me certain knowledge with regard to those things.

          I would also like to speak to some of the others, if I can do that now, or do I have to wait?

          THE CHAIRPERSON:  Go ahead.

          MR. LEMIRE:  In the letter from Joel Richler of the Canadian Jewish Congress, which discusses my application, he says that neither applicant raises the issue that is specifically relevant to this complaint. 

          I think my application is relevant for three reasons:  (a) my name has been brought up on many occasions and I should have the ability to represent myself for those things. 

          I also have an interest in preserving freedom of speech on the Internet, and I feel that this case, being the first case ever to look into whether the Internet should be controlled in any way, is a freedom of speech matter, definitely.  I think there is a lot of organizations on the Internet who also feel that this is a very big freedom of speech issue.  Obviously, if there are 22 mirror sites, there is quite a lot of people out there who also feel the same way and mirror those sites in order to push the idea of freedom of speech.

          I think I can also add relevant information to this case.  Having a certain knowledge of how the Internet works, I feel I would be able to make much better submissions than some of the other people and cross-examination of witnesses.

          Looking back to the letter from Mr. Richler, he also goes on to say:  "There is no reason to believe that he will be affected by the Tribunal's decision."  It is quite clear that my name is in the Consent Order, which is probably going to be the final order.  I suspect that, if the Commission ends up winning this, this or a very similar form would be the order that would be put onto Mr. Zundel.  Since my name and other people's names are involved in it, it would affect my right to (a) associate with Mr. Zundel, to associate with Ingrid Rimland, to associate with Samisdat Publishers, to associate with any of the other things.  I have a Charter right to associate with these people if I choose to or if I don't choose to.

          If a decision by this Tribunal is going to affect me, I should be able to make representations to it and also to put evidence in and some other things.  I think that would only be fair.

          Looking back to Mr. Richler's letter, he says on the last page:  "There is no reason why they cannot simply be called as witnesses in the proceedings."

          I would like also to introduce evidence and to cross-examine some of the other witnesses.  Just being called as a witness certainly would not in any way help my rights in order to cross-examine these people.  Also, if I was going to be a witness, I would not even be able to sit in the room while these other people were making their examinations to the Tribunal, so how would I even know what they were saying to be able to represent myself?  I think that is only fair.  If somebody is going to say something about me, I should have the opportunity to respond to them.  Isn't that one of the basic tenets of our legal system?

          I would also like to make a point on what some of the other lawyers were saying.  Mr. Kurz said that we are probably Mr. Zundel's left hand helping his right hand and that we will be an extension of Mr. Zundel and adopting his positions.  How on earth would he know that when we haven't even adopted any position yet?  We haven't even come and spoken to these issues yet.  How does he know what position we are going to take on those issues?  I am certainly not a left hand of Mr. Zundel.  I come here to make submissions on my behalf, not on Mr. Zundel's behalf.

          I would also like to speak to what Mr. Armstrong wrote in his letter.  He starts off saying that I ought to be bound by any such order of the Tribunal.  I think he is certainly saying that I would be affected, which is in contradiction to what Mr. Richler said.  Obviously, I will be affected by an order of this Tribunal.

          As to the issue of it being untimely, I only became involved when my name came up in these Hearings.  I would like the chance to be able to defend myself against any allegations.  My name came up on October 17, so this is certainly not untimely.

          Those are my submissions for now.

          THE CHAIRPERSON:  Thank you, Mr. Lemire.  Mr. Christie, please.  I don't think we need to refer to the principles again.

          MR. CHRISTIE:  No, I am sure.

ARGUMENT ON BEHALF OF THE RESPONDENT


          MR. CHRISTIE:  In my submission, it is only fair to allow someone whose rights might be affected as a party to be represented in their own capacity.  If there is an attempt, as there clearly is, to restrict Mr. Lemire's communications with Mr. Zundel, with Samisdat, with Ingrid Rimland, as is proposed in the Consent Order, as is the position of the Commission, then there can be no denying that his rights will be affected.

          This only came to light in any clarity when Mrs. Zundel, the surprise witness without the benefit of the 10-day rule, came before the Tribunal and gave her evidence.  At that point it became clear that Mr. Lemire was being implicated in a way that had not been clear before, and it was then made clear further by the indication of just what the Commission wants, which is not only to silence Mr. Zundel on the Internet but, in effect, to silence any communication between Mr. Lemire and Ms Rimland.  That is, in effect, going to be an order against him.

          For the life of me ‑‑

          THE CHAIRPERSON:  Mr. Christie, the only respondent here is Mr. Zundel.

          MR. CHRISTIE:  That's fine.

          THE CHAIRPERSON:  If these proceedings were to result in an injunction, it would bind other persons, as any injunction would bind other persons, where it applied to a particular person, but it would also apply to persons who are associated perhaps with Mr. Zundel.  Nobody could circumvent the effect of that injunction by being an alter ego for Mr. Zundel.

          All I am saying is that the fact that he is mentioned in a letter, in a form of order which should not be before this Tribunal ‑‑ and we will pay no attention to that draft order.  It came into existence, as I understand it, because of another process leading up to this.

          MR. CHRISTIE:  No, it came into existence because I asked the Commission just to tell me what it was they wanted and maybe, if we could comply, we would not have to go through this process.  That is how it came into existence.

          THE CHAIRPERSON:  It came into existence, but that is no business of this Tribunal.  This Tribunal will decide on the evidence whether there is going to be an injunction and how that injunction will read.

          MR. CHRISTIE:  And it is undoubted that the order that the Commission seeks will be advanced as the requested order.

          In any case in a court of law where the rights of parties could be affected by an injunction, what kind of court would there be that would deny a party whose potential rights would be affected the opportunity to appear before the court as a party? 

          THE CHAIRPERSON:  I would have thought that they would be named as a respondent if there was to be an order affecting their rights.

          MR. CHRISTIE:  Not necessarily.  When an injunction is sought in a form that affects the rights of named individuals, in my submission, it would not be necessary that they be directly named as respondents in order that they would have rights that would be affected by a potential order, and any reasonable court would give them the opportunity to come before the court, represent their position and argue for or against the various orders being sought, provided that it would potentially affect their rights.

          If I understand the position of at least the Canadian Holocaust Remembrance Association, they concede that it will.  At least, that is what they are going to seek.  It is not necessary to decide whether a person has rights that might be affected to determine what the ultimate order is going to be.  You couldn't do that in any case, so no one would have a right to appear before the order was made, and that would defeat its very purpose.

          Obviously, when a person's rights are potentially affected, then they have a right to appear to answer to and to participate in the decision of how it should affect their rights, if at all.

          Certainly no powers of being a witness can deal with the issue of cross-examination, of submissions which are an important part of any decision-making process in which there is an attempt at hearing both sides.  In this case Mr. Lemire is a party.  He is being named as involved in a supposed conspiracy to place matter on the Internet, to allegedly support web sites in some clandestine way. Then to say, "Well, you can answer that by way of being a witness," is basically to say, "You have no rights yourself that can be affected." 

          If the potential order that is being sought by the Commission is made, it will definitely restrict the rights of Mr. Lemire to communicate with Ms Rimland directly or Mr. Zundel or anyone who might be involved with them.  That is a very serious restriction on freedom of expression and association.

          THE CHAIRPERSON:  Mr. Freiman, why was Mr. Lemire specifically mentioned?

ARGUMENT ON BEHALF OF THE CANADIAN HUMAN

RIGHTS COMMISSION


          MR. FREIMAN:  My first submission is that the proposed Consent Order is not properly before you.  In fact, in my submission, I would call it surprising, and that is the most modest word that I could use.  It should not be there.  It is part of the process under sections 47 and 48 to attempt to see if there was room for an amicable resolution of the matter.

          THE CHAIRPERSON:  You are not seeking an order to specifically name Mr. Lemire?

          MR. FREIMAN:  At the moment, our instructions are not to seek such an order. 

          THE CHAIRPERSON:  What will your position be after the recess?  "At the moment" doesn't help the Tribunal very much.

          MR. FREIMAN:  That is the position.  We have not been instructed to seek an order that names individuals.

          MEMBER DEVINS:  Can you assist us by telling what remedy you are seeking?

          MR. FREIMAN:  We are seeking an order that would prevent Mr. Zundel from communicating himself or in association with others matters that would likely expose an identifiable group to hatred and contempt based on a prohibited ground.  We would seek to define the nature of the communication by reference to the evidence before you so as to prevent the communication of the material that we presented to you or material that is substantially similar.

          I start by saying that the proposed Consent Order is part of a different process not before you.  Unlike Mr. Christie, I don't assume anything about what the Tribunal will do, other than to assume that the Tribunal is well versed in the rights of individuals and will not make orders that negatively affect the rights of persons who are not before the Tribunal.  The only respondent before the Tribunal is Mr. Zundel, and an order against him in the language of the Act and echoing the prohibitions under the Act does not affect the interests of any other individual. 

          That could properly be the matter of submissions in argument during the final submission stage.  If Mr. Christie believes that any proposed order is too wide because it does affect the rights of others, he will draw that to your attention, and your order will be properly circumscribed.

          What I hear and what is properly before you is really an argument by Mr. Lemire that his name has been mentioned and, because his name has been mentioned, he wants the right to expand the proceedings so as to become a party and to not only defend what he sees as his own interests in terms of getting the record straight, but also to expand the interest by cross-examining not only those who mention his name but any number of parties, and drawing on his asserted expertise in certain areas to also cross-examine on expert matters.

          In effect, what he is asking you to do is to allow him to expand the ambit of the proceedings in an indefinite and uncontrollable manner.  In my respectful submission, the nature of the argument put before you by the applicant for interested party status gives an indication of the potential that such status has for derailing the proceedings, lengthening them, taking us down unprofitable detours and, in general, embarrassing the proceedings, in a legal sense of embarrassing the proceedings.

          There is no right for every person whose name is mentioned in proceedings to become a party to those proceedings, and that is the right that Mr. Lemire is asking before you.  There is no right for every person who claims expertise in an area that is discussed in the proceedings to become a party in the proceedings, and that is also a right that Mr. Lemire is claiming from you.

          The intervention being proposed is not helpful, does not comply with any of the rules before the Tribunal, as having been applied by other tribunals in granting interested party status.

          THE CHAIRPERSON:  Mr. Armstrong, please.

ARGUMENT ON BEHALF OF SABINA CITRON


          MR. ARMSTRONG:  Members of the Tribunal, I agree with the submissions of Commission counsel that Mr. Lemire does not satisfy any of the requirements that would inform the Tribunal to grant him interested party status.  He simply comes forward and says, "I know something about the Internet.  I know something about computers and, indeed, I have my own web site."  What does that tell you, I ask rhetorically.  It tells you nothing.

          In my respectful submission, he has nothing to add in terms of bringing a particular point of view.  He has not even told us what his point of view is and how he might be different from any of the rest of us or different from Mr. Zundel.

          Having said that, based on some of the evidence that we have heard so far, it is the position of my client and the Canadian Holocaust Remembrance Association that Mr. Lemire ought to be bound by any ultimate order of this Tribunal, should the Commission succeed in its case.

          Having said that, we concede that Mr. Lemire ought to be granted whatever status is necessary in order to respond to his being expressly bound by any order of this Tribunal.  Put simply, we don't want to go through this Hearing and end up at the end of the day with an order against Mr. Zundel that turns out to be meaningless because it is not seen to expressly bind Mr. Lemire.

          Those are my submissions.

          THE CHAIRPERSON:  Mr. Armstrong, you are supporting an intervention of sorts.  What are the four corners of that intervention?

          MR. ARMSTRONG:  The four corners of it are to ‑‑ it is a bit difficult because the Commission has now said that they are not seeking an order that will expressly bind Mr. Lemire.  If the Commission had said that they were seeking an order of the nature ‑‑ and I agree with Mr. Freiman that the order really is not properly before you because it is part of another procedure.  But it, in fact, is before you whether we like it or not

          THE CHAIRPERSON:  We know about it.

          MR. ARMSTRONG:  You know about it, and it is filed with you.

          If the Commission were seeking that kind of an order, then Mr. Lemire, I concede, should be able to appear and testify, whether or not any party calls him.  At this moment in time he simply has to rely on whether the Commission calls him as a witness or Mr. Christie calls him as a witness or some other party calls him as a witness.  He would be entitled to testify and he would be entitled to respond to any argument put forward that he be bound by the order.

          The Commission is not seeking such an order.  It is my anticipation, on behalf of Mrs. Citron and the Canadian Holocaust Remembrance Association, that at the end of the Hearings and submissions, we may well be advised on behalf of Mrs. Citron as a complainant to make submissions that Mr. Lemire be bound by such an order.  I and you and the rest of us have not heard all of the evidence yet, but there seems to be some potential for that.

          THE CHAIRPERSON:  I pushed Mr. Freiman into a corner on that one a little bit, and I did not intend to do that.  In any event, you may well be seeking to have Mr. Lemire named in an order, if one should eventually ‑‑

          MR. ARMSTRONG:  If the evidence is such that it is clear that Mr. Lemire, in fact, is integral to the Zundelsite and, as he or somebody else has suggested, the right-hand person of Mr. Zundel in this operation, there is no doubt, I must tell you, that on behalf of Mrs. Citron as a complainant we would be urging an argument on you that he be expressly bound by such an order.  Therefore, what follows from that, I have to concede, is that he should be afforded the status in order to protect his legal interest.

          I don't make that argument lightly, but I have to concede that that is where it leads.

          MEMBER JAIN:  I am not very clear on what kind of status the Tribunal should grant Mr. Lemire, other than strictly as a witness.  He did ask for cross-examination and other rights.  I am not clear about the status that you are advocating.

          MR. ARMSTRONG:  I have to concede that where it likely leads, if my submissions are accepted, is that he becomes a respondent.  He certainly has no basis, sir, in my respectful submission, to come in here as an interested party or intervenor.  He just doesn't satisfy any of the requirements that Mr. Freiman set out from the Dieleman and other cases.


          MEMBER JAIN:  Thank you.

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

          MR. EARLE:  Thank you, Mr. Chairman.  The Mayor's Committee again adopts the submissions of Mr. Freiman.

          THE CHAIRPERSON:  Thank you.  Any fresh comments, Mr. Kurz?

          MR. KURZ:  Just a few comments.

ARGUMENT ON BEHALF OF B'NAI BRITH


          MR. KURZ:  This is an unusual position because I actually disagree with Mr. Armstrong's comments based on the position that the Commission is taking.

          Mr. Lemire has not come before the Tribunal asking to be added as a respondent.  If I hear his submissions, rather he is asking to be added as an interested party, and those are two different things.  As I hear it as well, Mr. Lemire said nothing about conceding his procedural rights with regard to notice in advance.  He is simply saying that he wants to be added now.  Those are real issues that I am submitting have to be considered by the Tribunal.

          If the Commission had been asking that Mr. Zundel not associate with Mr. Lemire or somehow do indirectly through Mr. Lemire what they ask that he not be able to do directly, I am submitting that Mr. Lemire need not be added as a party.  If there is a bail condition, for example, that Mr. A does not associate with Mr. B, and Mr. A is the accused, Mr. B does not become a party to the bail hearing.  If there is an injunction application, for example, in a situation where a prominent management person leaves and starts contacting clients, the client is not made a party.  It is just the former director or what have you that is made a party.

          I am suggesting that it is analogous here.  If Mr. Lemire were to be mentioned at any time, it would not be something that binds him.  It simply binds Mr. Zundel ‑‑ that is, that Mr. Zundel not associate with Mr. Lemire, that Mr. Zundel not do through Mr. Lemire indirectly what he cannot do directly, if you find that there are certain things that Mr. Zundel should not be doing.

          For those reasons, I am submitting to you that it is not necessary to add Mr. Lemire.

          I would like to add two other points.

          First of all, with regard to the test, does Mr. Lemire have anything to add that will assist the Tribunal?  He has admitted as much, that he does not have expertise.  He started to use the word "expertise," took it back and used the word "knowledge."  That is important because part of the test for interested party status, if the test for intervention applies here, would be some expertise.

          Interestingly enough, Mr. Lemire was extremely close-lipped about what it is that he is going to say.  He said specifically, "Nobody knows what I am going to say."  I am suggesting and I am submitting to the Tribunal that, in order to grant this kind of interested party status, Mr. Lemire should be able to convince you that he has something unique to say.  He is not saying what he is saying at all.  How do we know, based on Mr. Lemire's submissions and his letter, what he is going to say and how different it is from what Mr. Zundel says?

          I also bring to your attention the spectacle of him cross-examining Mrs. Zundel.

          One last point about the left and right-hand argument.  In my written submission I specifically raise that issue.  I raise the issue with regard to the coincidence of the two letters.  I have addressed that before, and I make that submission again with regard to Mr. Lemire.  I also raise this issue with regard to that letter and the so-called Consent Order.  As I understand it, Mr. Christie said that he wrote a letter to Mr. Freiman saying, "What Consent Order would you accept so that we can end this thing?"  That sounds to me like settlement negotiation.  Mr. Freiman wrote a letter back to Mr. Christie in a way that I would think would be privileged.  Certainly it was not addressed to Mr. Lemire.  There is no "cc" to Mr. Lemire on that letter; yet, Mr. Lemire has a copy of that letter for the Tribunal.

          In my written submission I specifically questioned how Mr. Lemire got that letter if he is not the left hand of Mr. Zundel's right hand.  In hearing him today, there is no explanation.

          Again, I reiterate that submission on the basis of the comments and the lack of comments by Mr. Lemire today.

          Thank you.

          THE CHAIRPERSON:  Mr. Rosen, please.

ARGUMENT ON BEHALF OF SIMON WEISENTHAL CENTER


          MR. ROSEN:  The only thing I wanted to say is that I adopt some of what Mr. Kurz says with respect to whether Mr. Lemire ought to be a party.  The order that would be made would be against Mr. Zundel either acting alone or in concert with others not to do certain things.  If Mr. Zundel chose to act in concert with others, it would be enforced as against Mr. Zundel and not others.  The fact that others are named directly or referred to indirectly is irrelevant.  The fact is that he is the only respondent.

          It was specifically raised in the position of the Simon Weisenthal Center that to allow Mr. Lemire and the other party to come in, but Mr. Lemire especially, would tend to expand the nature of the proceedings and raise a number of issues.  If Mr. Lemire were to be added as a respondent, that would create enormous problems such as notice and so forth and whether or not we can go back and give him rights to cross-examine and whether or not you have to stop the proceedings and start over.

          It restructures the entire proceedings, and I would respectfully submit that it ought not to be done and that it is not necessary to be done.  With respect to his being an interested party, I adopt Commission counsel's position.

          THE CHAIRPERSON:  Thank you, Mr. Rosen. 

          I am sorry, counsel, I don't have your name.

          MS FAVREAU:  Lise Favreau, F-a-v-r-e-a-u.

          THE CHAIRPERSON:  Go ahead.

          MS FAVREAU:  We, too, adopt the submissions made by my friend Mr. Kurz on the issue of whether Mr. Lemire would be bound by an order of the Tribunal.  Based on the submissions that were made by Mr. Freiman as to the content of the order which would be sought and the fact that Mr. Lemire is not in fact the subject of the complaint, there is no reason to believe that his rights would be affected.

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

ARGUMENT ON BEHALF OF THE RESPONDENT


          MR. CHRISTIE:  This, in my submission, demonstrates the absurdity of the positions taken by all the parties in that various complainants go through an involved process of contacting a foreign web site and they download some messages, bring them as a complaint to the Canadian Human Rights Commission, and their rights are affected.  They are allowed party status or complainant status.

          Until today, until this process of raising the issue, Mr. Lemire's rights were being sought as restricted.  I don't hesitate to say that, when I see someone else's rights being affected by a potential proceeding, I bring it to their attention because I have no obligations to prevent other people's rights from being protected.  If anything, as an officer of the court, I think I have a right to advise people when their legal rights might be affected.  There is no suggestion that there was a privileged communication from the Commission to me.

          The rights of Mr. Lemire will be affected by either the explicit order that they originally sought until now or the implicit order.  His rights will be affected.

          They are not now apparently seeking an order at this moment that will expressly bind Mr. Lemire.  That is what we have heard for the first time today.  But their order will bind anyone in conjunction with Mr. Zundel.  If Mr. Lemire interviews Mr. Zundel, takes notes in handwriting, goes home and e-mails an interview to Ms Rimland who posts it on the web site, is anyone really seriously suggesting that that would not be considered a breach by Mr. Zundel in the all-encompassing way these orders are created?  Of course not. 

          Mr. Lemire cannot do what he would otherwise be entitled to do with even the basket clause order that they are now trying to propose.  It would not name him, but it would say anyone with whom he might be associated.  So Lemire cannot do what any other citizen could do in interviewing Mr. Zundel and communicating with a foreign publisher.  It affects his rights as a citizen, and there is no denying that, really.

          There is an allegation that was made for the first time in these proceedings, undenied, that it was for the first time without prior notice, and that is why there is a reasonable delay.  If there had been any further information given prior to that time, one could criticize Mr. Lemire for not doing something, but actually there wasn't.  Mr. Kurz said that he should not be given status as a party, and then Mr. Rosen referred to him as seeking status as a party.  There is no difference between a respondent and a party.  If he has now for the first time sought that status, in my respectful submission, it is an argument interorem to suggest that somehow this would throw these proceedings into chaos.  He asked for it, and he should have it, but he did not ask for it before because he did not know about it before.  There is no evidence that anybody knew about it before, so no one can be criticized if he is joined now.

          Look at how this order would affect his rights and, in all fairness, allow him the opportunity to defend those rights for himself.  In my submission, he is quite right to say that I don't have a brief for him.  I am not responsible to defend his interests against whatever accusations Irene Zundel may have made against him.  Only to the extent that it affects my client's rights am I really required to pursue the matter.  His rights being affected, he should be able to do that for himself. 

          To deny him that right is very much like this situation.  An injunction is sought against one union that has an alleged association with another union, but only one union is going to be served with notice; only one union will have a right to make representations.  Although the injunction could affect both, only one will appear.  That would seem to me not like a bail hearing situation; it is quite obviously more like this situation.


          Thank you.

          THE CHAIRPERSON:  The Tribunal will reserve on these applications and deliver our decision shortly.  We will have our morning recess, and then we will continue with the cross-examination of Mayor Hall.

‑‑- Short Recess at 11:58 a.m.

‑‑- Upon resuming at 12:16 p.m.

          THE CHAIRPERSON:  I assume that Mr. Fromm and Mr. Lemire were adopting Mr. Christie's reply.  If that is not the case, Mr. Fromm, do you want to say something more?

          Sorry, Mr. Earle, please.

          MR. EARLE:  Mr. Chairman, given the unexpected length of time that this has taken this morning, I am advised that the Mayor has to leave at 1:30.  At this point, I really have some concerns about the process, as to whether it is appropriate to start and stop a cross-examination like this.

          What I would suggest now ‑‑ and I apologize; it has been difficult to deal with this.  I would remind the Tribunal that these gentlemen were supposed to appear last Thursday and did not appear.  I think a lot of the problems we are having with scheduling witnesses now might have been avoided had they done so.

          The Mayor has advised that she has a meeting tomorrow between 12:00 and 2:00; otherwise, she is available to be here.  We also have Mr. Angus outstanding, and I am not sure how Commission counsel want to deal with that.

          THE CHAIRPERSON:  Let's deal with the problem at hand as far as the Mayor is concerned.  Is she not available after the lunch hour?

          MR. EARLE:  The difficulty today, Mr. Chairman, is that she has a valedictory council this afternoon.  It is the last meeting of City Council.

          THE CHAIRPERSON:  Can you have Mr. Angus this afternoon?

          MR. FREIMAN:  Yes, Mr. Angus is present outside even as we speak.

          THE CHAIRPERSON:  Perhaps we will hear from Mr. Fromm and Mr. Lemire and then have lunch and come back and hear from Mr. Angus.

          MR. FREIMAN:  I was going to second Mr. Earle's proposition to that effect.  I would like to take this opportunity to canvass Mr. Christie's estimates as to how long he will be with Mr. Angus.  In that way we could find an appropriate time for the Mayor to come back and also to schedule our subsequent witnesses.

          THE CHAIRPERSON:  First, how long are you going to be with him?

          MR. FREIMAN:  About a half-hour, maybe less.

          THE CHAIRPERSON:  Will you occupy the rest of the day, Mr. Christie?

          MR. CHRISTIE:  Yes, I will.

          THE CHAIRPERSON:  We will have the Mayor available tomorrow in the event that Mr. Christie has finished.  The Mayor can be excused.

          Mr. Fromm, please.

REPLY ON BEHALF OF CANADIAN ASSOCIATION FOR

FREE EXPRESSION INC.


          MR. FROMM:  Mr. Chairman, in his submission Mr. Freiman went through several cases before the Federal Court, as I understand it, and outlined tests for intervenor status.  The first of the tests that he referred to was that the intervenor would have a substantive issue in the proceedings or be adversely affected.

          It is certainly my submission that the control of the Internet is a very substantive issue.  It certainly will affect my personally.  I am an avid Internet user, and our organization sees itself as a representative, in the fulfilment of our brief, of Canadians who are very concerned about freedom of speech.  The Internet is very much new territory as we see it, probably the greatest invention in terms of communication since Gutenberg's invention of moveable type.  It is so far a wild, woolly and uncontrolled medium.

          My late instructor at the University of Toronto, who was a great inspiration to me, Marshall McLuhan, in his analysis of the media has said that the medium is the message.

          As this Tribunal has before it the unique challenge or opportunity to make a ruling on an attempt to control or perhaps even restrict this medium, I think I and certainly the Canadian Association for Free Expression have a very substantive issue.

          The suggestion was also made in Mr. Freiman's submission to you that we have shown no particular interest in this issue in the past.  Presumably, we woke up one day a few weeks ago and decided, "Wouldn't it be nice to go and take part in the Tribunal?"  This is certainly not the case.  We have been concerned from the very beginning of the procedures against the defendant here.  We have run ads in The Globe and Mail and British Columbia Report and in other media trying to alert, to the extent that our very limited resources can, concerned Canadians about the very dangerous possibilities of what might happen at these proceedings.  So we are certainly not a johnny-come-lately with no particular background in this.

          The second test that Mr. Freiman referred to was that the intervenor must be a well-recognized group.  I suppose that comes down to your good judgment.  I notice that, I believe under section 50 of the Canadian Human Rights Act, you have a certain amount of discretion.  At what point does a group become well-recognized?  The only thing preventing us from having had intervenor status at some of these other free speech cases in the last decade is simply lack of money.  We don't get funded by the federal government.  Just because we are like the petit gar de Shawinigan, just because we are the little guy, does not mean that we should not have some opportunity to participate.

          The final point that Mr. Freiman made in his submission was that there was an interest in the expedient disposition of this matter.  If "expedient" means a rush to judgment, I don't think the interests of justice are going to be served, and I am sure you will not fall into that particular mode of operation. 

          These are incredibly important issues.  The Internet is now the medium of choice for research for a good deal of our student population and for a good deal of the research that they do for school projects.  The control of that medium is incredibly vital.  In the interests of just hippity-hopping along, I don't think a concerned party should be excluded, again subject to your good judgment on this.

          I will conclude by making a couple of comments about the submission of Mr. Kurz.  Most of the other people who already have status before you concurred with the submissions of Mr. Freiman.  but Mr. Kurz raised some additional points.

          One was the unnecessary lengthening of the proceedings, and I have already dealt with that.  I perhaps am challenged in terms of hearing, but I did not hear Mr. Christie say, as Mr. Kurz said he did, that we lack expertise.  Our expertise may not be of a legal nature where you can stick an LL.B after your name, but we do have a long-standing interest in communication and in freedom of speech.

          A comment was made about me that I guess draws on the religious.  I was referred to as a defrocked teacher.  Certainly in terms of religion, "defrocked" means having your powers, your faculties, as a priest or minister removed from you.  That is misleading to this Tribunal.  That is not the case.  After years of lobbying by Mr. Kurz' organization, my employer dismissed me.  I am still a duly licensed teacher in the province of Ontario.

          Mr. Kurz also referred to the Supreme Court and comments by Madam Justice McLachlin about intervenors in the Supreme Court.  I can well imagine a much tighter standard would be required before the Supreme Court of our land after a case has gone a very considerable number of miles through the lower courts.  This body, as I understand it, is not in that sense a court of law, certainly not the Supreme Court.  I understand that you do have much greater discretion as to who might participate as an interested party.

          With due respect, it would seem to me that that submission perhaps does not apply in this case and that you at least have the option of perhaps a lesser level of proof.

          I would like to reiterate the interests of the Canadian Association for Free Expression in participating as an interested party.  I point to the fact that we have been in existence for 16 years, so we are not some committee that decided to form ad hoc just for this purpose.  We have a long-standing and proven public interest in defending freedom of speech and freedom of expression in Canada.

          I thank you for your time.


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

REPLY ON BEHALF OF MARC LEMIRE

          MR. LEMIRE:  Thank you for giving me the opportunity to respond to what some of them said.

          Mr. Freiman did say that giving us some sort of status will expand the duration of the Tribunal.  The Tribunal has the task of looking at some very important and very thorough issues, and why not extend it to have the best amount of information possible?  It may expand the duration of the Tribunal slightly, but at least you would have much more information to look at and be able to make a much more informed decision.

          I also want to respond to Mr. Kurz about some procedural issues, that maybe I was not supposed to read something here.  I was not aware of that, and I can only apologize for doing it.

          Mr. Kurz also mentioned that the order would only bind Mr. Zundel, but it also affects me.  If he has some order on him that he is not allowed to associate with me, such as the example that Mr. Christie gave of me doing an interview and then sending it down to Ingrid Rimland, would that not somehow fit into the all-encompassing order?  I suspect that it would.  Therefore, I suspect that my rights are being infringed.

          Also Mr. Kurz makes mention that I continually said that I had certain knowledge as opposed to expertise on the Internet as a whole.  That is true, but there is no person that can have an expertise on the Internet.  It is just too big; you cannot have an expertise on the entire thing.  You cannot be an expert on all engineering; you could be an expert in a certain field of engineering, such as electrical engineering.  When I made mention that I had knowledge on the Internet, it is true. 

          When it comes to specific expertise ‑‑ and I can mention specific expertise because I am not an expert on the Internet as a whole.  I just mention that I am a member of the Internet Society.  The Internet Society is the largest and most prestigious for sharing information about research standards on the Internet.  Members include actually the person who invented ‑‑ when Mr. Angus was here, he made mention of TCP/IP.  He is the person who actually invented it.  This person's name is Cerf.  He is one of the leading members of the organization, and most of these other people who are in the organization are actually the people who invented the standards that make the Internet what it is.  So you could say that these are the founding fathers.

          To look at expertise when it comes to the Internet, I will examine some more specific expertise that I would have.  I do have expertise with regard to owning an ISP or operating an Internet service provider.  I run a BBS, which is a bulletin board system that people can call into, a sort of central place that people can call into.  I set that up.  It is running on a program called PC Board.  PC Board is about the world standard for that; it's about the best there is.

          I have attended numerous courses on PC Board.  PC Board itself is not being taught at universities.  The only real way that you can get any sort of expertise in it is to really use the program.  Actually, Ian Angus did say, when you approved him to be an expert, that ‑‑ let's see if I can get the quote of exactly what he said.  He said something along the line that there are no courses in it, that you learn it by doing it.  You can become an expert by doing it.  It is not like I can go to university and say, "Why don't you teach me about PC Board?"  There is just no such thing.

          Basically, with PC Board, you pretty much write the program yourself.  You add to it, but it itself is really just ‑‑

          THE CHAIRPERSON:  Your point is that you have practical experience.

          MR. LEMIRE:  I have practical experience with regard to an Internet service provider.

          I, through UUNet Canada, which is Canada's largest provider of Internet services to Internet service providers

‑‑ it is the top-level provider, or one of the top-level.  IStar is another one, and there is a couple of others, but it is probably one of the largest and the largest in North America.  I get Internet feed from them and, in turn, offer it to my users.  Having practical knowledge in doing that is not something you can go to university to learn.  Only about a year or maybe two years ago they have been teaching UNIX and certain configurations there.  I have had this thing for almost four years now, so it is not like I could go to university and learn it.  Only now are they starting to teach the material.

          I also have expertise when it comes to certain applications on the Internet.  Real audio is one that I have expertise in.  That includes Versions 2, 3, 4 and up to 5.  I also own two Internet domains on the Internet.  I own Freedom Site.org and DF.org which are separate spots on the Internet that I own. 

          I sit on the board of directors of a large web site, probably one of Canada's largest web sites.  My duties as system administrator of that site also include site management, having certain knowledge of file transfer protocols, the UNIX system which is the base system that the web servers run on, having knowledge of the web server itself, how to run applications from the web server, also having technical knowledge ‑‑ and this is another thing Angus mentioned ‑‑ of HTML and HTTP.

          I think it is quite obvious, with certain knowledge, that I would be able to provide some nice insight to the Tribunal, to the other people, and to the witnesses who might be testifying.

          I think that would be the end of my submissions.  Thank you very much for hearing me.

          THE CHAIRPERSON:  Do any counsel feel any further comments are necessary?


          We will adjourn until two o'clock.

‑‑- Luncheon Recess at 12:35 p.m.

‑‑- Upon resuming at 2:19 p.m.

          THE CHAIRPERSON:  Excuse me for keeping you waiting.

          Dealing with the applications of this morning, the Tribunal has a broad discretion under section 50(1) of the Act in dealing with applications for interested party status.  In exercising our discretion, we must also be mindful of the need to ensure that the proceedings are run smoothly and concluded in an expeditious manner consistent with the duty of fairness.

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

          From the outset, the parties have acknowledged the significance and novelty of this case insofar as it deals with the limits of acceptable expression on the Internet.  Precisely because of the unique and important issues arising in these proceedings, we are of the view that the Canadian Association for Free Expression should be granted interested party status.  We would, however, place the same restrictions on this intervention as we have with respect to the other interested parties ‑‑ that is, restraint must be exercised to ensure that interventions are only made where they relate to the issue which is directly or substantially related to the party's specific public interest.  The focus of Mr. Fromm's organization is on the issue of free expression. 

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

          With respect to Mr. Lemire, his application for interested party status rests as a result of his personal interest in these proceedings.  We recognize that any individual who will be directly affected by an order of the Tribunal may be added as a party.  Notwithstanding Mr. Armstrong's submissions, on the facts currently before us we are satisfied that, at best, Mr. Lemire may only be indirectly affected by the outcome of these proceedings.

          Mr. Lemire says that he should be made a party because his name has been mentioned by another witness giving evidence at these proceedings.  This is not a basis for adding him as an interested party on the record of these proceedings thus far.  The complaint contains no allegations against Mr. Lemire, and Mr. Zundel is the only named respondent.  Inevitably, the evidence may include references to any number of other individuals other than the respondent and, in our view, it is unnecessary and undesirable to grant interested party status with the full rights sought by Mr. Lemire.

          Mr. Lemire did refer us to some level of expertise that he claims to possess and to have acquired in the area of the Internet.  Independent of a separate interest, such expertise does not of itself give rise to a persuasive ground for granting this motion.  Therefore, we would dismiss the motion brought by Mr. Lemire.

          Proceed with the witness.

RESUMED:  IAN ANGUS

EXAMINATION-IN-CHIEF, Continued


          MR. FREIMAN: 

          Q.     Mr. Angus, on Friday we were about to move from the third question, which dealt with the Internet, to my fourth question which is:  What is the role of the World Wide Web?

          Earlier this morning we heard reference to a term, and I would like to ask you in what part of the discussion that term properly falls, and perhaps we will discuss it for a moment.  The term we heard this morning was something called "UUNet."  Are you familiar with that term?

          A.     Yes, I know the term as the name of a company.

          Q.     Is that company properly understood in the context of the Internet or in the context of the World Wide Web?

          A.     In the things that I discussed on Friday, we talked about Internet service providers.  UUNet is an example of an Internet service provider.  They say they are one of the largest.

          Q.     In terms of the relationship between that entity ‑‑ first, let us be clear.  What does an Internet service provider provide?

          A.     An Internet service provider, in its most basic sense, provides a connection to the Internet which their customers want.  It may also, and usually does, provide computer space for people who want to have web sites, who want to put themselves on the World Wide Web.  It provides various services like electronic mail and so on.

          Q.     Does UUNet have any relationship to a telephone system or a telephone network?

          A.     Again I judge here by their public statements.  They rent or lease high-speed facilities from the telephone companies in order to link their various nodes together.

          Q.     Let's move then from discussing the Internet to discussing the World Wide Web, which is another term that we hear a lot in Internet parlance.  What is the World Wide Web, Mr. Angus?

          A.     If we start at the Internet, the Internet that I have described so far is really just moving bits around.  From a user's point of view, that is not a very interesting thing.  Most users don't actually see the Internet, the underlying communication capability.  What they see are applications which are usually described as part of the TCP/IP protocol suite that we talked about that use the Internet to provide services people might actually want to do.

          Some examples of that are what is called FTP, the file transfer protocol, which lets me go and get files from remote computers; Internet relay chat which is a method of allowing people to talk, to chat, using text on their screens; electronic mail, probably the most widely-used one; and the World Wide Web is an example of an application that uses the Internet.

          Q.     Let's stop there for a moment.  When we talk about an application of the Internet, are we talking about something physical or are we talking about something else?

          A.     This is software.  These are programs that run and use the Internet.

          Q.     Let's talk about the differences between those applications.  What is the difference between FTP, Internet relay chat, electronic mail and the World Wide Web?

          A.     Each one simply lets me do different things with the Internet.  If I know where there is a file that I would want to use that is on a remote computer and it has FTP software there and I have FTP software, I can simply go to that computer, look at the list of files and say, "Copy this one onto my computer," and it will do it.

          Internet relay chat ‑‑ primarily, you can log on there, see who else is there, and chat to them.  My teenage daughter does this a great deal.

          Electronic mail is for sending messages and, increasingly, files and so on.

          The World Wide Web was developed originally by scientists to make it easier to get information in fields where things were developing quickly.  It allows you, for example, to read a document on your screen from a remote computer and, for example, if there were a footnote in the text, rather than having to scroll to a different file or a different place where the footnote is, you point your mouse at the footnote and click, and that brings up the file that has the footnote in it.  That is called Hyper Text, the ability to jump to linked parts of text as you go.

          THE CHAIRPERSON:  What the scientists developed was a software program?

          THE WITNESS:  The software program and, more specifically, the protocols that will be talked about.  Any site that wanted to implement this could do it and then share information with any others.  It was originally developed in Europe and came here very quickly.

          MEMBER JAIN:  Is there a limit to the documents you can put on the World Wide Web?

          THE WITNESS:  Originally, the World Wide Web was a pure text environment.  All you could do was send text.  Today, if you can store it on a computer, you can get it on the World Wide Web.  You can get text; you can get still pictures; you can get moving pictures; you can get sound.  You are limited only by the ability of the computer to store the information.

          THE CHAIRPERSON:  What are the outer limits of what the World Wide Web can do?

          THE WITNESS:  There are people who would argue that there is none ‑‑ that is, that anything can be stored in digital form.  At this point I don't know of a way to actually touch anybody with the Web.  I can't reach through it and I can't smell things through it, but certainly text, graphics, sound, video, anything that goes to those four categories, absolutely.  I can even get radio shows now and listen to radio programs.  The CBC is accessible through the Web all the time.

          MR. FREIMAN: 

          Q.     Are there any components to the World Wide Web when it is being used as an application?

          A.     The World Wide Web is an example of what is called a client server application.  In the early days of computing, you typically had a terminal that had no intelligence in it at all.  You connected to a computer, and all the smarts were in the computer you connected to, and you could only do what it was capable of doing.

          With the arrival of personal computers, so that you had more powerful things on your desk, it became possible to do applications that were split in two pieces.  Part of it resides in what is called the client and part of it resides in what is called the server, and you need both parts in order for the application to work.  It has the advantage that I can change one side without changing the other.

          In this case you have a server on the World Wide Web, which is a place where the information is stored and which has the programs in it that know how to respond to requests for information.  Then you have a client, which on the World Wide Web is usually called a browser.  If you hear somebody say, "I have a browser and I am surfing the Net," they are using what is technically called a client.

          What the client does in the case of the World Wide Web ‑‑ and it would be different in other client/server applications.  The client asks the server, "Send me something."  The server sends it.  The client knows how to react and how to display it on the screen.  The server, in fact, doesn't care how it is displayed on the screen; that is up to the client to do it.  So it might look different from one screen to another, depending on what kind of computer you have.

          As part of the process, the server also sends along with it the instructions on what to do next, how to get to another file, how to add more information.  The browser or the client knows how to ask for those again.  But you need both parts.  A browser going to a place that doesn't have the server software won't get any information, and the server can't send stuff to a place that doesn't have a browser.

          Q.     Based on that discussion and description, is one or the other, the client or the server, active and the other passive, or are they both passive or are they both active, and do those terms have any significance?

          A.     They are both active.  As I say, the Web requires both ends.  You can't be a Web server without having software whose whole purpose is to send information to browsers.

          Q.     Let's talk about the server.  What specifically does the server do when it gets a request from a client?

          A.     Fundamentally, there is an accepted set of things that happen at the beginning of a communication.  From my browser I simply send what amounts to a message that says, "What have you got?"  The server, depending on how it is configured ‑‑ and there are many different ones; lots of different companies make the software ‑‑ then looks for a piece of software with a standard name ‑‑ often it is named "Welcome"; sometimes its name is "Default;" they have different names ‑‑ and sends that one back.  It is just programmed to, when it gets an initial request, "Here is what you send."  Usually, what it is sending is an opening menu.  It is sending a screen full of data which may include many files or just one, depending on how it is set up. 

          It sends it back.  The browser receives it and decides whether to do anything with it.  It puts it up on the screen, of course, and the person using the computer makes the decision.

          Q.     You have talked about various types of applications on the Internet.  You have identified the World Wide Web as one of those applications and told us a little bit about the interaction between the browser and the server.  Is there anything that is specific to World Wide Web as opposed to other applications?

          A.     There are two quite specific things to the World Wide Web.  One is a communication protocol called HTTP. It is used by the server and browser to control the way they communicate.  This is what allows the server to know:  I am getting a certain kind of message. Send it.  It is what allows the browser to realize that it is getting the right kind of information back. 

          That runs above the TCP/IP program and makes sure that all of these things work together.

          Then there is what is called HTML which stands for Hyper Text Markup Language.  I could, presumably, send a file that was just raw text without doing much to it, but the whole point of the World Wide Web is to ensure that the text has the hyper links that I talked about so that I can jump to footnotes, displays headlines, shows graphics, and so on.  The way you do that is by taking the text file that is on the server and putting instructions into it that the browser understands as instructions to display.   For example, it might say:  Make the following line a headline.  That would tell the browser:  Whichever way you have of showing headlines, do that now.  Maybe it shows them in big print or maybe it shows them in red, whatever it has.  Or:  Put this picture here.  It will go and get the file, and then it will send another command, "Bring me that picture and put it in," and so on.

          You can tell instantly when you look at an HTML file whether it is marked up this way.

          Q.     Would you turn to the next slide and tell me whether this has anything to do with HTTP or with HTML.

          A.     First of all, the top line is the actual Web address of my company.  If you enter that command in a browser, what you are doing is telling the browser to use the HTTP protocol and go to the location which is known as www.angustel.ca, and get whatever file it wants.  It sends a message to it saying, "Send me that file."

          What I have underneath there is just a piece of the text that you would get back if you did this.  If, instead of looking at the picture on your screen, you looked at the underlying code, which you can do with a browser, you would see something that looked like this.  That is an HTML-coded file.

          Q.     In this case who is doing the communicating to whom?

          A.     In this case somebody presumably has asked for it, so they communicated to us.  They sent the message, and our server has sent the message back, sent this file back to the originating point.

          Q.     There is sometimes something called a URL.  Do you see anything about a URL there?

          A.     The "www.angustel.ca" is our URL.  That is called a Uniform Resource Locator, and it is just an agreed-on way of specifying addresses in a human understandable form.  There is actually an Internet address, a set of digits, that really identifies where we are.  When somebody types that address, the Internet looks up in its data bases and says, "Ah, that's the Angus company.  Connect to there."

          Q.     For this particular Internet web site, who programs the web site?

          A.     In this case, it was me.

          Q.     Do you do that by typing in every word that we see here?

          A.     When we first started doing that, you literally had to type every letter here.  Today, however, there are programs.  We use one called Front Page 97 which is a Microsoft program in which we just type into it the text.  We are actually interested in the original text, but we just highlight this, "make it a headline," highlight this, "make it a link," and so on.  It is point and click.  It is all menu-driven.  It is no harder to use than an ordinary word processing program, easier in some ways because there are not as many things to do.

          Q.     Let me be clear about that.  Do you need to know anything about machine language?

          A.     Not at all, no.

          Q.     Do you need to know anything about computer logic to be able to program a web site like this?

          A.     No.

          Q.     Do you need to know anything other than how to point and click?

          A.     To do this part, no.

          THE CHAIRPERSON:  Anything about what, I am sorry?

          MR. FREIMAN:  Anything about machine language, computer logic or anything more than pointing and clicking.

          Q.     Perhaps for the benefit of the Tribunal, can you explain what pointing and clicking consists of?

          A.     Really, moving my cursor to a point on the screen and pushing down on the buttons.  That is pointing and clicking.

          Q.     Again, we don't see it up on the screen now, but what would you be pointing and clicking at if you were programming your web site?

          A.     For example, the first line that starts "li", along there it says "Canada's Toll-Free System Crashes."  That is something I typed in.  What I would do to make this like that is point my mouse to it and draw it across it to highlight it, so I have selected that piece of text.  I would then select that I wanted it to be part of a bullet.  That is what the "li" means; it is part of a list.  I could then enter ‑‑

          Q.     Let me stop you there for a minute.  Where would you find the appropriate object or icon to click on in order to do that?

          A.     It is all on my screen just as it would be on a word processor.

          Q.     Would that be in the form of text or would it be a picture of something?

          A.     It is mostly icons, although some of the seldom-used ones are hidden in text farther down in the menus.

          What we have done here is specified "li" which means it is a line item or a list item.  Then the next piece that is in between the two arrows just says what kind of text I want it to be in and what size I would like it to be in my display.  In fact, I don't enter that information.  I click on 2 for my font size; I select "Arial" from the list of fonts, and so on.

          Q.     Who provides you with the font?

          A.     All of that is in the program.  All of that is just done automatically when I say I am trying to format this piece.

          Q.     Just so that the Tribunal has an idea, who presents you with the menu and the possible selections for programming?

          A.     In my case, the Microsoft Front Page 97 program presents me with the choices.

          Q.     Once you have made one choice, what happens next?

          A.     It would depend, of course, on what the choice was, whether there is some other choice that is dependent on it.  In that case, it will usually present it to me.  In other cases it will simply return me to where I was:  What do you want to do next?

          By the way, I should emphasize here that I don't actually see any of these codes when I am doing them.  What I see is the text change to a different size, to a different face, just as it does on a word processor.

          Q.     What is the result of doing this activity, the pointing and clicking?  What happens when you are finished with the pointing and the clicking?

          A.     When I am finished, I then have a file which I assign a name to.  I can then keep it where it is, put it onto a server, or whatever else.

          Q.     If you do put it onto a server, what does it look like?  What does the finished product look like?

          A.     This is a re-creation of it.  I didn't actually photograph my screen because it turned out to be too fuzzy to read from more than a few feet away.  This is what that particular piece of code creates. 

          The opening line "What's New" is actually a graphic, a separate picture of text that it went and got.  It listed the "Telecom Update #110, December 1, 1997," and you will notice that it is shown in blue and underlined, which is a common convention on the World Wide Web.  What that means is that, if I point my mouse at that and click, I will get something else; a different file will be sent to me.

          Then it created the bullet points underneath.

          Q.     In order to do this programming, do you need any access to anything?

          A.     In order to put this on a server, I then need a program that is able to do that, a program that knows how to transfer files.  In some cases I might do that actually right within the same program I did the markup with.  In my case I use a separate program, FTP which we talked about before, which logs onto our server from my computer on my desk and allows me to upload this file and place it on the server where I want it to be.

          Q.     In order to get access to that server, do you need any way of getting access to it?

          A.     First of all, obviously, there has to be a communication path.  In our case it is the network within our building, but it could be through the Internet.  I need a password usually.  That is not inevitable, but usually there would be a password to prevent someone else from putting material there that I didn't want.

          Q.     What are the possibilities for programming in connection with the password?

          A.     To get material onto our server, I need to know the password.  Either you know the password or somebody tells you the password or, as it is in my case, since I am always going to the same place ‑‑ I never ever go to anything else with that program ‑‑ I have just saved it.  My FTP program includes the ability to click and to save the password.  As long as I have logged on to my computer or my computer is turned on, I go to that program and it just logs on automatically.  I select from a list of menu items which site I want to go to, and it goes there.  It has the capacity built into it.

          Q.     Let me understand that.  Let me assume that you don't know the password.  Someone else does and someone else puts the password in for you on the computer one time.  Is there any way that you can now have access to the site without yourself learning the password?

          A.     Yes.  If somebody sat down at my computer today and clicked on the FTP program, one of the choices they would get is the Angus web site.  In fact, if they clicked, it would go through and log on because I have put the password in there.  It is not the most secure thing to do in the world, but it is pretty common.

          THE CHAIRPERSON:  If you are talking about someone else's computer ‑‑

          THE WITNESS:  From someone else's computer they would require a password.  Their program would not include the password.

          THE CHAIRPERSON:  If I wanted to know something about Angus and I didn't have the password, how do I get you?

          THE WITNESS:  Those are two different questions.  The password is needed if you want to change what is on the site.

          THE CHAIRPERSON:  I would not have access to changing what you put on the site, but I would have access to the site.

          THE WITNESS:  That's right.  You can read anything we have there.  We don't have any of our documents password-protected from the point of view of viewing things.  You could go in and read all about what our company does.  Anything that we have put on our web site is available to you.

          MEMBER JAIN:  But you did say that, if I sat down at the computer and if you had something protected by the password, since you have pre-authorized it, I could get access.

          THE WITNESS:  Yes, you could.

          MEMBER JAIN:  Even though it may be confidential to you.

          THE WITNESS:  That's right.  Almost any FTP programs ‑‑ and I have mentioned FTP programs before.  You download them for free from the Web; there are lots of them available.  Almost every one I have ever seen includes this ability to save the password.  It is used especially in cases where a programmer is repeatedly going to the same place over and over and over again.  Typically, what you have is some password that prevents the computer from being turned on without the person knowing it.

          MEMBER DEVINS:  So you determine the level of security for your own computer.

          THE WITNESS:  Yes.  We have decided that in our case that is a level of security we can accept.

          MR. FREIMAN: 

          Q.     Let's go one step farther.  In the case of this particular destination, what is your purpose in putting these messages on the web site?

          A.     We want people to read them.  In this case, this is a newsletter that we publish every week, and we have some thousands of people who come and read it every week.  We hope they will read it and then look for something else.  We have pieces about our company, we have articles that we have written, discussions about our services, profiles of our consultants, and so on.  It is all there, and we want people to see it.

          Q.     Insofar as you understand it, is there any other purpose in putting a message on a web site other than to have someone read it?

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

          MEMBER JAIN:  Let's suppose that one of these receives 50,000 hits.  Does that assume that those 50,000 people ‑‑ some may have repeated, but let's say 50,000 ‑‑ have actually read the whole thing?

          THE WITNESS:  I don't know whether anybody reads anything.  Just to be clear, a hit does not necessarily mean a separate person because a hit is every time it asks for a file.  In this case, that is two files.  One of them is a picture, and one of them is some text.  If I get 50,000 hits, it would be 25,000 visits.

          One of the things that happens when the Internet gets busy is that everything slows down.  My site might show it as a hit, that somebody has requested this, but it may have taken so long to get to the Internet that they gave up.  That is a thing you worry about on the Internet, that people will come to your site but never read the material.

          Of course, once it gets on their screen, I have no idea whether they read it.

          MEMBER DEVINS:  So the hit is the request only, not the actual receipt?

          THE WITNESS:  A hit is a request.  It is a loose way of talking about what I said a browser does when it requests.  It is hitting, repeatedly going to the server and saying, "Do something; do something; do something."

          MEMBER DEVINS:  Unless you are in the room with the person who has requested it, you have no idea what they do with it once they get it.

          THE WITNESS:  None whatsoever.

          MEMBER JAIN:  Is there any program developed on content analysis?

          THE WITNESS:  Can you explain what you mean?

          MEMBER JAIN:  When you read a newspaper, you can tell.

          THE WITNESS:  What people have read?

          MEMBER JAIN:  Yes.  On the computer, is there any way that you can tell?

          THE WITNESS:  There are many programs that do hit analysis and that try to boil hits down to how many different users that was and how often they visited and what pages they requested, but the viewing occurs entirely in the browser.  I am not aware of anything that would allow you to say:  On this screen this person was reading this.  You might even know it was on their screen, but they might be in the washroom right now, so I don't know.

          MEMBER JAIN:  It is a very significant question because we need to know whether a hit is simply a hit or whether people actually read this.

          THE WITNESS:  The people who try to make money out of advertising on the Web would love to get what you are talking about.  It is one of the reasons that there are questions.

          MEMBER JAIN:  Thank you.

          MR. FREIMAN: 

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

          A.     They are very similar in many ways.  Something like Starphone, which the Toronto Star has, where there is a lot of information stored, what that actually is is a large, specialized computer that has a large number of voice messages that are organized as digital files on disk.  When I call in through a telephone set, it reads me a menu ‑‑ Press 1 for the horoscope, 2 for the movies today, and so on ‑‑ and I select.  It may then say, "Do you want movies on the east side or west side?" and I will select that.  It might say, "Do you want adult movies or family movies?" and so on.  It is a sequence of pre-recorded menus that takes me eventually through a pre-recorded file.

          The Web does rather the same thing, but it has more types of files.  Because it has a computer with a screen and some memory and processing power, in addition to being able just to talk to me, which I can do on the Web, it can send me text; it can send me pictures; it can send me other kinds of things, and it displays its menu as text rather than as words.  Fundamentally, you are going in ‑‑ you have what you call menu choices in one case and you call them links in the other case ‑‑ and selecting other files and saying, "Send me that one instead.  This is the file I want to look at."

          Q.     Turning to my fifth question, that is:  What is the relationship between the Zundelsite, the Internet and the telephone network?

          Let me first ask you:  Have you had occasion to visit the Zundelsite?

          A.     Yes, I have.

          Q.     Can you tell me how you did that?

          A.     I have on my desk at work ‑‑

          MEMBER JAIN:  Excuse me, could you repeat your question?

          MR. FREIMAN:  Yes.  I asked Mr. Angus whether he has had occasion to visit the Zundelsite and how he did that.

          MEMBER JAIN:  And the relationship...?

          MR. FREIMAN:  Between the Zundelsite, the Internet and the telephone network.

          MEMBER JAIN:  Thank you.

          THE WITNESS:  In my case, the computer on my desk has a browser or client software called Netscape 3.0, one of the most popular browsers.  My computer is connected to our office network and that, in turn, is connected to an Internet service provider on a telephone line that we rent from Bell Canada for that purpose.

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

          What that is is an HTML file.  The way you take this apart, the very last part after the last slash tells me the actual name of the file.  It is called "pow9507a.html."  The "html" after the dot gives me a signal that it is probably an HTML file; I don't know for sure.  The first part of it, "www.webcom.com" is a URL, an address on the Internet.  The part in between is the name of the specific sub-directory on that computer, "webcom.com", where this file is located.  It tells me that it is at this URL, it is in this file which is located in such and such a place on the disk, and that is the file I got.  It is only part of it.

          MR. FREIMAN: 

          Q.     Let me just stop you for a moment and look at this in some more detail.

          In terms of the diagrams we were looking at on Friday for connecting between one party and another party using the Internet, does the first part of the address have anything to do with using the telephone network to hook up to a location?

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

          Q.     From there is there any part of the telephone network that is being used when you go from webcom.com to ezundel?

          A.     That would very likely entirely be on one computer; it would be entirely within a computer at wherever webcom.com is located.

          Q.     When you dial that up ‑‑ perhaps you could tell us:  What does the very impressive series of codes in the slide here tell you about the message?

          A.     The first line says "HTML".  The fact that the file was called HTML was a clue, the fact that it says "HTML" on the first line makes it a certainty that I have an HTML file here.

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

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

          The next line simply says we are opening up the heading section and some information about the file.  All of the commands, if you want to interpret them ‑‑ you will notice that one says "HEAD" and then about two or three lines down it says "/HEAD".  What that says is "open the heading section" and then the latter one says "close the heading section."  All HTML commands are that way.  They always open and close.

          The next line says "META NAME=  'GENERATOR'CONTENT='Adobe PageMill 2.0 Mac'".  What that tells me is that this particular page was coded with HTML using a program called PageMill 2.0.  It is not unlike the Front Page 97 that I use, only this one is a Macintosh program.

          Q.     Just so we understand, you say it is not unlike your program except it is on a Macintosh.  Does that mean that it involves anything other than pointing and clicking?

          A.     It certainly involves pointing and clicking.  In fact, it is probably easier to use than the one I have, because the Macintosh environment is generally more friendly than the Windows environment.

          Q.     What else can you tell us just looking at these codes?

          A.     Going down, we end the heading section.  We have a line that defines what the background colour should be when it is displayed.  It is says "BGCOLOR".  We have a series of lines; there are four lines in there that start "IMG SRC" and they end off.  That is a set of commands that are saying both to the server and the browser ‑‑ first of all, they are saying to the server itself, "There are some pictures to put in here, so when you send this to the browser, you have to add several pictures and send them along as well."  From the browser's point of view, those lines say, "When you receive this file, put pictures in here at this point in the file."  Then it says "End of Header."

          The division between "Header" and "End of Header" appears to be a command that has probably been done on one file with a command saying, "Do this throughout the entire web site."  So it is making a lot of files look the same.

          Q.     When you say one command for the entire web site, does that have any reference to the brackets you were just talking about or something else?

          A.     That is the header information there.  It starts from "!-Header-" and ends at "End of Header."

          Often when somebody is doing a web site, they want every page to look the same, but they don't want to have to go through and change perhaps hundreds of files.  Many of the programs that allow you to mark up web sites also allow you just to do it once, and it takes over and automates the job of changing every page or all the pages you specify.  I think that is very likely what was done there.

          Q.     Just before we leave that, is it necessary to do that at the time that you first display the rest of the message, the text, or can this be done at any other time?

          A.     At any time.  One of the things that has made HTML very popular is that it is very easy to change.  You don't need to be a programmer to change this.  If you have a file and you don't like its look or you want to change a word or you want to make something a different colour, you change one line and resave it and you are done.  There is no need to rewrite everything.

          Q.     For instance, just taking these codes, if the text were already put on the web site, would it be possible to add these pictures subsequently?

          A.     Yes.  Down farther we have the line that says "H1".  H1 is simply a forced level headline, probably the biggest headline.  It says "H1 Power Letter" and then some text and then "/H1."  What that would do is take everything between those two commands and display them as a headline.

          We have a line that says "H3" with some more text.  That would be a headline which is two sizes smaller than the H1 headline.

          You will notice that Zundel has an odd spelling in the middle.  That is because the computer here cannot assume that everybody knows how to do an umlaut that all of the programs do, so it has actually inserted a command to put a "u" with an umlaut here rather than just a "u."  That is what that does to that spelling.

          We then have a "P."  That means start a new paragraph.  "HR ALIGN" is a horizontal rule; it means put a line here.  Then there is some text which is marked.

          Q.     When we put it all together, what do we get?

          A.     This is a re-creation of that, what all that text produces.

          Q.     Before we talk about that, can you tell me whether your visit to the web site necessarily involved the telephone network?

          A.     It certainly did.

          Q.     Why do you say that?

          A.     First of all, the only way I can connect to the Internet from my office is through a telephone line.  We don't have any other kind of connection.  Secondly, I know that IStar, which is our Internet service provider, get their major lines from AT&T who are a telephone company.  I put those two things together and I know a significant part of the communication must go over the telephone network.

          Let me correct what I just said.  IStar used to use mainly AT&T.  They recently announced that everything they use is Bell Canada.

          THE CHAIRPERSON:  That is the commercial reality, I take it.

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

          THE CHAIRPERSON:  Is there a theoretical option?

          THE WITNESS:  There is a theoretical option.  I could have an Internet service provider which decided to install its own wires out to my building.

          THE CHAIRPERSON:  By cable?

          THE WITNESS:  By cable.  At this point the cable companies are still not offering service to any Internet service providers other than themselves. 

          Suppose I went through cable; suppose I went through Rogers and I lived in Newmarket where I could get the Wave.  I would then connect through my cable television, literally through the cable television physical line, out to Rogers as an Internet service provider.  However, Rogers itself does not have Internet backbone facilities.  They are at that point an Internet service provider like any other, so they are sending the packets out through the network and, if it is in Canada, it is going over facilities owned by one of the companies we talked about on Friday.

          Hypothetically, in the future someone might pull cable over that entire distance and have it never connect in any way to the telephone, but even then, because of the Internet's routing method, which is that the packets don't go in a predictable way, you could not know ahead of time or even afterward where all those packets went.  The probability would be, to an extraordinarily high degree, that at some point it would be on the telephone facilities.

          THE CHAIRPERSON:  It is theoretically possible.

          THE WITNESS:  Yes.

          MR. CHRISTIE:  I didn't hear that, sir.

          THE CHAIRPERSON:  It is theoretically possible.

          MEMBER JAIN:  Is there any other theoretical possibility other than cable?

          THE WITNESS:  Is there any other possibility than cable?  Yes, there is a company in Vancouver called Wave Rider which is currently trying to sell.  They haven't sold any in Canada yet.  It is a technology which would allow an  Internet service provider to put in its own radio ‑‑ think of it as a radio broadcast, like a microwave tower, which uses a technology called spread spectrum which would allow them to do this and maintain security.  A subscriber could put a dish on their roof, or a little antenna, and participate.

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

          MEMBER JAIN:  You don't know of any other outside of North America that makes this?

          THE WITNESS:  There are technical ways to do many things.  There are many wireless technologies, for example, that are possible.  There is a set of new companies that have just been licensed in Canada that offer a technology that is called LMCS, Local Multipoint Communication Service, which is like a high-speed wireless service.  They are not commercial yet but, if they were there, once again that first hop could be wireless to them.

          MEMBER JAIN:  But so far nothing exists?

          THE WITNESS:  No.  There have been some experiments.  There was a company that was experimenting for a while doing wireless off the top of the CN Tower.  They are not now. 

          I can't exclude that somewhere there is an Internet service provider who is physically installing wires to people.  All of the activity that I am aware of in terms of alternate access are all focusing on that last mile, the link between the end user and the Internet service provider.

          At this point, because of the extraordinarily high investment that would be required, nobody but telephone companies has the facilities to give access.

          MEMBER JAIN:  Thank you.

          MR. FREIMAN: 

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

          A.     Entirely?  No.

          Q.     Is it, in your opinion, likely in the foreseeable future that there will be any such facility to bypass entirely the telephone network?

          A.     Given the speed of development in this area, I would hesitate to say when anything could happen.  First of all, I don't know of anybody who is actively installing today networks that might replace the backbones that exist, the physical networks.  Secondly, even if they did, because so much of the existing Internet already operates over telephone facilities and because of the thing that the Internet does, routing which is unpredictable, there is no way you could be certain at any time that it was guaranteed to go that way.  It might happen with given packets.

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

          A.     Linking can mean two things in the context of a web site.  It might mean:  Go and get another file for me from that site, in which case it is very similar to a menu on a voice mail system.  It is just another choice.  Linking can also mean on a web site;  Go to an entirely different computer and get something that is connected to the Internet in some other place.

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

          Q.     When you do use linking in the second sense you talked about, are you still communicating with the same site or are you doing something else?

          A.     No, you have switched to a different site.

          Q.     You have displayed for us now this reconstruction.   Can you again remind us:  What does that correspond to?

          A.     That corresponds to the text file that we had on the previous slide.  It is this text displayed by a browser.

          Q.     Could you assist us with some conclusions that you might have drawn with regard to the relationship between the Zundelsite, the Internet and the telephone network.  First of all, what do you conclude about what the Zundelsite is?

          A.     First of all, the Zundelsite is a web site.  A web site, by the way, is really a collection of files on a server under HTTP.  It is a web site on the World Wide Web that contains files coded using HTML for display on browsers, and I conclude that because I requested an HTML file, and it sent me an HTML file that could be displayed.

          Secondly, it is located on a World Wide Web server which sends files over the Internet using HTTP.  I conclude that because I requested it to be sent in HTTP, and it did.  It responded using it.

          Thirdly, it sends files over physical facilities which are entirely or partially part of the telephone network.  In order to reach Canadian users, those files travel on facilities owned by Canadian telephone companies.  I conclude that because that is how they were sent to me, through the Internet which I know the backbone belongs physically to telephone companies and, more specifically in my case, it came over a telephone line which has a phone number and all of the other characteristics of a telephone line coming into my office.

          Q.     In general, did you see anything in your visit to the Zundelsite, any method of discussion on the Zundelsite?

          A.     Not that I would describe that way, no.  There was a place where I could click on a line that then opened my e-mail program and allowed me to send an e-mail message to them or, at least, to an address that they provided me.  That is a fairly standard browser command.  That is as much as I saw that was of that order.

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

          A.     We are talking here about telephonic communication, as I understand.  A telephone by itself is an incredibly useless device.  If all you have is a telephone handset, or even 100 of them, you can't communicate with anybody.  They make good paper weights or they might be good ornaments, but they don't communicate by themselves.  Telephone sets only communicate if they are connected to telephone networks.  When they are part of the network, then they become communication devices.

          That is one side of it.  What I am saying is that the telephone would be too small.  On the other side, a telephone network which had no telephones connected to it, if you could imagine such a thing, would still be able to carry on communication using other types of terminal devices ‑‑ facsimile machines, computers, telephone devices for the deaf, and so on.

          My view is that, if you are talking about communication in this environment, you have to be talking about a network.  If Mr. Bell had only invented one phone, we wouldn't be doing anything.  It is the ability to link them together in an environment that makes the communication possible.

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

          A.     No.

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

          A.     No.

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

          A.     Yes.

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

          A.     Yes.

          MR. FREIMAN:  Those are my questions.


          THE CHAIRPERSON:  I will ask others in the same interest.  Mr. Armstrong, do you have any questions?

          MR. ARMSTRONG:  I have no questions, thank you.

          THE CHAIRPERSON:  Mr. Earle...?

          MR. EARLE:  No questions.

          THE CHAIRPERSON:  Mr. Kurz...?

          MR. KURZ:  I have a few, Mr. Chairman.

CROSS-EXAMINATION


          MR. KURZ: 

          Q.     At page 24 of your brief, paragraph 2, under the heading "Retrieving Recorded Data," Mr. Angus, you say:

"Using a computer to 'browse the Web' is more complex than, but not in principle different from, using a telephone handset to listen to pre-recorded messages."

Then you say:

"In both cases the information is stored in digital form, as files on computer disks.  Selecting menu items causes those files to be retrieved and transmitted."

          Is there any other way in which you can say they are, in principle, not different from each other?

          A.     In this context I said what I had to say there.

          Q.     Let me put it in a different way.  Is there anything you can do with a telephone handset that you cannot do with a computer?

          A.     I can't think of anything.

          Q.     Simply using a computer, can you simply call somebody up to have a voice communication with them?

          A.     With the proper software on a computer and with a speaker and microphone, which you may or may not have to attach, I can place what I think of as voice phone calls through my computer.  There are organizations which operate what are called Internet telephony gateways which allow me to place a call into that, transmit the call over the Internet and, depending on which software is involved ‑‑ the person at the other end would have to have a computer, in the extreme case, but there are some now that would actually allow me to call to a telephone at the remote end.

          Q.     So if you have the right software, you could use your computer, your laptop, and call somebody up who is using their handset, and they could have a conversation with you.

          A.     Yes.

          Q.     I take it there would be no difference between that conversation and the conversation you would have from handset to handset?

          A.     You would probably notice a poorer quality on the computer connection because it is going through the Internet which uses packet switching.  You can't predict how quickly or how slowly the message gets there, so you sometimes get a lot of interruptions and noise.  Apart from the quality difference, you can have a two-way conversation, yes.

          Q.     Could there be quality differences in conversations between handset and handset using different telephone networks?

          A.     Yes, there can.  Probably the example in most people's experience is using a cellular phone in which case you get anything from excellent to terrible transmission.

          Q.     Can somebody who has only a handset call a computer and have what I would describe as a normal telephone conversation with a person on a computer?

          A.     It is possible.  It is not very common, but gateways do exist that permit that.

          Q.     The technology allows it?

          A.     Yes.  In fact, in Japan there is now a commercial service that allows people with phones ‑‑ if I have a telephone set, I can literally use the Internet to place a call to somewhere else, and I don't have to have a computer at all or there doesn't have to be a computer at either end.

          Q.     So you are saying that you can use the Internet to place telephone calls without using computers at all?

          A.     Yes.

          THE CHAIRPERSON:  What is the purpose of it?

          THE WITNESS:  It is cheaper because the Internet's economics are completely different from the telephone industry's economics, especially for international calls.  The way the countries in the world pay for telephone networks and the Internet network is different.  Originally, this was popular; because you could, you did it.  The network in Japan that is doing this is actually run by AT&T.  People are starting to experiment with whether the Internet is a good method of running international calls.

          MR. KURZ: 

          Q.     Again, without a handset, you can call what I would describe as a telephone hotline, an answering service of some sort that has a menu and a series of pre-recorded messages.  Is that correct?

          A.     Yes, I can.

          Q.     And you would be able to access those messages similarly whether you used a computer or whether you used a telephone handset?

          A.     Yes, I could.

          Q.     I think you mentioned that The Toronto Star has such a program?

          A.     Yes, it is called Starphone.

          Q.     You can call the Starphone and, if you press the right button, you will get that message.

          A.     I could actually get a display on my screen that looks like a touchtone on a telephone set and using my mouse to push those buttons will do the same thing as using the phone.

          Q.     You could use your computer then to receive and listen to pre-recorded hotline telephone messages.

          A.     Yes, I could.

          Q.     Could you use your computer to set up one of these telephone hotlines in which you give out these messages?  Somebody could call you and obtain a series of pre-recorded aural messages?

          A.     Yes.  In fact, simple answering machine programs are one of the standard things that are now shipped on a lot of computers for home use.  You can get more complex ones.  In fact, you can set up an entire voice mail system on a personal computer.  There are programs available to do that.

          Q.     Just so I understand your last answer, if you use a computer to make a telephone call, do you use the telephone network any differently than if you had used a simple telephone handset?

          A.     As a user, no.  As the person on the computer, I am dialing digits and it is going through a telephone network and so on.  The big difference is that, when I am dong what is called Internet telephony, the call is going through Internet packets rather than through the telephone company's own services.

          Q.     But the Internet backbone would be used in the same way?

          A.     Absolutely.

          Q.     If you are using, say, your computer to call up the Zundelsite ‑‑ and let's assume that the Zundelsite file server is in California ‑‑ will you still use the Canadian telephone backbone?

          A.     Yes, I have to get to the border somehow.

          Q.     You have to use that to get to the border?

          A.     Yes.

          MR. KURZ:  Those are my questions.  Thank you.


          THE CHAIRPERSON:  How much time do you have, Mr. Rosen?

          MR. ROSEN:  I have no questions.

          MR. WOODS:  I have no questions.

          THE CHAIRPERSON:  We will take our afternoon break.

‑‑- Short Recess at 3:21 p.m.

‑‑- Upon resuming at 3:40 p.m.

          MR. FREIMAN:  Mr. Chairman, before we reconvene, I note that Mr. Lemire is still in the body of the hearing room.  I am not certain whether he is intended to be called as a witness, and he may not understand the force of the Tribunal's Order excluding witnesses.  I simply draw your attention to that fact.

          THE CHAIRPERSON:  Do you understand, Mr. Lemire, that there is an Order excluding witnesses?  If you intend to be a witness at these proceedings, then you would be obliged to observe that Order.

          MR. CHRISTIE:  Would it be the case that that would be with the exception of expert witnesses?

          THE CHAIRPERSON:  Yes, that's right.  Did you understand what I said?

          MR. LEMIRE:  I understand, but how am I to know if I am going to be called as a witness?

          THE CHAIRPERSON:  You can check with other parties, including Mr. Christie or Mr. Fromm. 

          Would you leave the room, please, if it is your intention to give evidence.

          Mr. Christie, please.

CROSS-EXAMINATION


          MR. CHRISTIE:

          Q.     Did I understand your definition of "telephony" to be that you did not need to have sound to have telephony?

          A.     Yes.

          Q.     Could you be wrong in that definition?

          A.     I can't claim that I have always been right, but, no, I don't think I am in this case.

          Q.     Do you have the capacity to define it for the first time differently than it has ever been used before?  Is that the way you claim this definition?

          A.     The definition of "telephony" that I gave was the one from Newton's Telecom Dictionary which is the most widely-used dictionary in our industry.

          Q.     We will get to that.  You take that to be serious, do you?  That dictionary is a serious dictionary?

          A.     Yes, I do.

          Q.     Do you realize that it defines "telephone" as an instrument of the devil, as its first definition?

          A.     I know that the author has a sense of humour and frequently puts jokes like that into it.

          Q.     I have a series of definitions that I would like to put to you.  I have a copy for you and, if I may, for each of the Panel Members.

          I would like to suggest to you, Witness, that actually, in order to constitute a definition in the usual sense of the word, it is necessary to comply with a wide usage.  Would you agree?

          A.     Yes.

          MR. KURZ:  I wonder if Mr. Christie has copies of documents for all the parties.

          MR. CHRISTIE:  I would love to be able to, but unfortunately I haven't been able to do it today.  I will give one to Mr. Kurz, and I have two more.

          MR. KURZ:  I am just asking for direction for the future.

          THE CHAIRPERSON:  You will have to share for today.

          MR. CHRISTIE:

          Q.     I would like to suggest to you, sir, that even Newton's Dictionary regards telephony as the communication of sound over distance.  Do you agree or disagree?

          A.     The definition of "telephony" it gives is:

"The science of transmitting voice, data, video or image signals over a distance ‑‑"

I would assume, since it includes voice, that is one of the elements, yes.  But it says "or" not "and."

          Q.     I have a specific question.  Did you get any sound at all out of the Zundelsite?

          A.     No, I did not.

          Q.     It is entirely text?

          A.     Yes, and images.

          Q.     Did you get pictures?

          A.     Yes.

          Q.     What did you look at on the Zundelsite?

          A.     I looked at the home page, which is the first page that comes up.  I looked at the table of contents and from there went to several other files, and I went to some of the Power Letters.  I did a selection of the files; I did not look at all of them.

          Q.     Let's go to the dictionary definitions that I have provided and see if you agree or disagree with them.

          I am looking at page 1 of the 1997 Bell Glossary of Telecommunications industry terms.  Do you accept that as a credible and reputable dictionary?

          A.     This is a glossary which a supplier of telephone services and telecommunications services has provided.  I don't know their sources.  I don't know if they went to an official dictionary definition.  I would think it is probably anecdotally acceptable.

          Q.     I see.  Is it common usage?

          A.     That is what I meant.

          Q.     Thank you.  Common usage on page 2 for "telephony" says:

"A device used mainly for voice communications which converts audible signals into electrical waves, which can then be transmitted over communications channels."

Is that what it says?

          A.     This is the definition of "telephone?"

          Q.     That's right.

          MR. FREIMAN:  I simply make the observation for the record that Mr. Christie misspoke himself and said that this was a definition of "telephony."  It is in fact a definition of "telephone."

          THE CHAIRPERSON:  Sorry, where are you, Mr. Christie?

          MR. CHRISTIE:  I am at page 2, my lord.

          Q.     "Telephone:  A device used mainly for voice

communications which converts audible signals into electrical waves, which can then be transmitted over communications channels."

You accept that definition in common usage?

          A.     Yes, I accept that definition.

          Q.     And "telephony" on page 3:

"The branch of telecommunications which incorporates the transmission and reproduction of speech."

Do you accept that?

          A.     I accept it as partial.  It has the word "incorporates."  If we accept that as meaning that there are other things than that in telephony, yes, I accept that definition, but it is only a partial definition.

          Q.     What does AT&% stand for?

          A.     It used to stand for American Telephone & Telegraph; it now is just AT&T.  It is a corporate name.

          Q.     It was "Telephone & Telegraph", wasn't it?

          A.     It was, yes.

          Q.     The next is at page 7, Webster's Third New International Dictionary, 1993. 

          The first definition of "telephone" is:

"an instrument for reproducing sounds, esp. articulate speech at a distance."

Do you accept that as the current common usage, at least in 1993?

          A.     I think the previous definition which said "mainly for" is more correct, but this is an acceptable definition.

          Q.     Going back to that definition, it said "used mainly for voice communications which converts audible signals ‑‑"  So it had to have audible signals, sounds, in the definition of Bell's glossary.

          A.     Mainly.

          Q.     Mainly for voice, but uncontrovertedly, I suggest, for audible signals into electrical waves.  So it dealt with sound, whether voice or music.

          A.     I agree.

          Q.     At least that is what the definition is, whether you agree with it or not.  Do you agree?

          A.     That is what it says, yes.

          Q.     Let's go to "telephonic" from Webster's Third New International Dictionary, 1993.  "Conveying sound to a distance" is the first meaning there.  Right?

          A.     Yes.

          THE CHAIRPERSON:  Where are you?

          MR. CHRISTIE:  Page 7.  It is in the second block of text on page 7.  It says:  "Telephony:  conveying sound to a distance."

          Q.     The second definition: 

"of or relating to the telephone; carried or conveyed by telephone." 

Farther down;

"the use or operation of an apparatus for the transmission of sounds between widely removed points."

          Do you accept that as common usage in 1993?

          A.     It is a common usage.  I don't think it is completely accurate.

          Q.     We are going to come to where we differ, but I want to establish that this is the common meaning of these terms that I suggest is more widely accepted than Mr. Newton's joke book about electronics.

          A.     I don't accept your characterization.

          Q.     We will go to Mr. Newton's and see how serious he is in a few moments.

          Page 9 is actually from Fiber Optics and Lightwave Communications Standard Dictionary by Martin H. Weik, D.Sc, published by van Nostrand Reinhold Company, page 8 in my book of documents, and "telephony" is on page 9.

          A.     Yes.

          Q.     "A system of telecommunications in which

voice or other data originally in the form of sounds are transmitted over distances.  The sounds are converted to electrical currents in wires; electromagnetic, microwave, or radio signals; lightwaves in optical fibers; or other forms."

          That is, I suggest, a more commonly used definition than Mr. Newton's definition, isn't it?

          A.     I don't believe that anyone knowledgeable in the telecommunications industry would accept the limits that are placed on this definition to sound.  However, possibly to this author it was correct.

          Q.     It was to this author, to the previous author and the previous author so far.  Right?  It was always limited to sound communication over distance by at least the three authors previously.  Can we understand that?

          A.     Yes.

          Q.     So they are not as right as yourself and Mr. Newton.

          A.     Is that a question.

          Q.     Is it so?  That is a question.

          A.     I believe Mr. Newton's definition is correct.

          Q.     If we go to the Dictionary of Data Processing, Second Edition, by Jeff Maynard, published in 1988, we come to the definition there at my page 11 in the upper corner. 

"Telecommunications:  The transmission and reception of signals over long distances by means of radio, telephony or telegraphy."  Right?

          A.     Yes.

          Q.     So telecommunications can include telegraphy and it can include telephony and it can include radio.  Can we agree on that?  Any transmission of a message is telecommunications, as opposed to the more limited definition for "telephony."  Would you agree?

          A.     Telephony is a form of telecommunications.

          Q.     But it is a more limited set than the whole of telecommunications.  Telecommunications is a broader definition or category than telephony.

          A.     Yes, because telecommunications even includes things that are not electrical at all.

          Q.     Like semaphore and smoke signals.

          A.     Yes.

          Q.     But "telephony" is defined, at least in this dictionary, as a communication method in which audio frequencies are transmitted over a communication link.

          That, I suppose you will agree, at least implies that sound is the element of communication.

          A.     It does imply that, yes.

          Q.     Is that also an inaccurate definition according to your definition?

          A.     Yes, I think this definition is much too narrow.

          Q.     I see.  Then the Communications Standard Dictionary at page 12 ‑‑ have you heard of that?

          A.     No, I haven't.

          Q.     Have you ever heard of Martin H. Weik?

          A.     No, I haven't.

          Q.     It deals with "telephone" on page 944.  I think that is the first time for that definition of "telephone."  It says:

"Pertaining to a communication system or device that makes use of sound and the electrical or electromagnetic representation of sound to transmit messages, that is, calls."

Do you agree with that definition or not?

          A.     Once again, I think it is too narrow, but I do understand that some people would define it that way.

          Q.     At least so far, it seems like other dictionaries don't agree with your definition.  Do you agree?

          A.     So far, it would seem that they all have narrower definitions, yes.

          Q.     And they do seem to define it as the transmission of sound over distance.

          A.     Yes, that seems to come up repeatedly.

          Q.     And it comes from the Greek, tele and phone.  Right?

          A.     Yes.

          Q.     "Tele" means distance and "phone" is sound.  Right?

          A.     That's right, yes.

          Q.     And that is how the word was created to describe that phenomenon.

          A.     Yes.

          Q.     Then on page 946 it describes a telephone system as a communication system set up for the transmission of speech and other sounds.  Right?

          A.     That is what the telephone system was originally set up for, yes.

          Q.     Are you saying that this is not a credible source?  Just tell me straight out if you are saying that this Communications Standard Dictionary is not a credible source.

          A.     I am not familiar with this book or the author, so it is difficult for me to comment in general.  However, I notice that it says 1983, and this is an industry which is in constant evolution.  I don't know whether this author knows about telephones or whether he comes from a different kind of background.  I simply don't know enough about him to comment.

          Q.     The 1997 Glossary definition from Bell Telephone really wasn't any different, was it?

          A.     No.

          Q.     So they are not really that far out of date, are they?

          A.     I don't know where they got their glossary from.  One of the things about glossaries is that they tend to copy from each other a great deal.

          Q.     So you reject their definition because it is possibly copied.  Is that your position?

          A.     No.  I reject it because it is too narrow.  I have no idea whether it is copied.

          Q.     "Telephony" at page 946 says: 

"A system of telecommunications in which voice or other data originally in the form of sounds are transmitted over long distances.  The sounds are converted to electrical currents in wires; electromagnetic, microwave, or radio signals; lightwaves in optical fibers; or other forms.  It includes the science and practice of transmitting speech or other sounds, such as tones that represent digits or signaling information, over relatively long distances, and rendering the sounds audible upon receipt.  The distances involved are generally greater than earshot range.  See radio telephony; voice telephony."

          Do you reject that definition, too?

          A.     I think this definition comes much closer because it recognizes, for example, that data gets converted into sound in modems and that is what is transmitted.  It talks about other sounds.  It talks about representing digits which would allow you to do the kinds of things we talked about in the other definition.

          Q.     Digital telephones still transmit sound, though, don't they, sir?

          A.     They take sound and convert it into digital form.

          Q.     And then they reconvert it into sound at the other end, don't they?

          A.     Yes, they do.

          Q.     Thank you.  That is exactly what this definition says.  It says " rendering the sounds audible upon receipt."  Right?

          A.     Yes.

          Q.     Thank you.  The next definition is Microsoft Computer Dictionary.  The date that we have on it ‑‑ it says January 20, 1993, but I am not sure of the date of publication.  It could be prior to that.

          At page 18 that I have put in handwriting there, it says:

"telecommunications:  A general term for the electronic transmission of information of any type, including data, television pictures, sound, facsimiles, and so on."

          Do you agree with that?

          A.     Yes.

          Q.     For "telephony" it says: 

"Telephone technology; the conversion of sound into electrical signals, its transmission to another location, and its reconversion to sound with or without the use of connecting wires."

Do you agree with that definition?

          A.     Once again, I think it is too narrow.  I think it is correct; it just doesn't go far enough.

          Q.     It doesn't go as far as you would like to define it, so that it can include the Internet, but it does go as far as all the others have, doesn't it?

          A.     Yes.

          Q.     It seems like each and every one of the definitions that I have brought up required sound transmission over distance, like "tele phone."  Right?

          A.     In the definitions you have brought up, yes.

          Q.     Let's go to the Dictionary of Computers, Data Processing and Telecommunications" by Jerry M. Rosenberg, Ph.D, 1984, John Wiley & Sons.  Then we have the definition of "telecommunications" at page 20.  Do you agree with that?

          It says: 

"(1) communication over a distance as by telegraph or telephone; (2) any transmission, emission, or reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, radio, optical, or other electromagnetic systems."

          Do you agree with that?

          A.     I have not looked at it in great detail, but it seems accurate, yes.

          Q.     Then it says: 

"(3) the transmission of signals over long distances, such as by telegraph, radio, or television."

          Telecommunications includes any communication over distance, doesn't it?

          A.     Yes.

          Q.     When we turn to "telephony" or "telecommunications facilities," it defines them on page 532 ‑‑ I am not concerned about that.  At page 533 it defines "telephony."  It says ‑‑ and I suggest that this is the essential element of the definition throughout each and every one of the previous definitions:  "the transmission of speech or other sounds."  That is what it says.  Right?

          A.     That is what it says, yes.

          Q.     And you deny that as having sufficient breadth for your belief.

          A.     Yes.

          Q.     Then we turn to page 23, The Computer Glossary, Seventh Edition, 1995 ‑‑

          A.     May I just simply say, sir ‑‑

          Q.     I would like to ask you a question, and I don't really want to get into an argument.  If it is related to my last question, go ahead.

          A.     It was an elaboration on my answer.  "Transmission of speech and other sounds" is an acceptable definition to me so long as the person reading it understands that one of the things you do to transmit data, video, and image over telephony networks is convert them into sound first.  That is what modems do.

          Q.     But it is the communication of sound that constitutes telephony, not the institution of sound through the wires.  You said yourself that sound doesn't pass through electricity, does it?

          A.     No.

          Q.     Did they instruct you that you would get special favours if you said "telephony," "telephone company" and "telephone" as many times as possible?

          MR. FREIMAN:  I hope that Mr. Christie is asking that for purposes of rhetorical effect.

          MR. CHRISTIE: 

          Q.     I would like to see what your instructions were, the definitions and instructions that you were told to prepare yourself and what your objective was in giving your evidence.  If you were told to interpret everything telephonically, that is exactly what I would like to know.  Did you get instructions in writing?

          MR. FREIMAN:  I thought I was actually giving Mr. Christie an opportunity to back down gracefully.  That is an objectionable question.

          THE CHAIRPERSON:  The first part of the last question I think is fair with respect to what instructions did he have.  It would be fairer if you lopped off the last part.

          MR. CHRISTIE:  I appreciate that.  I spoke so quickly that I can't remember exactly what it was.

          Q.     Did you get instructions in writing as to what you were required to testify about?

          A.     No, I did not.

          Q.     So everything you communicated with was over the telephone?

          A.     Or face to face.

          Q.     Let's go to page 23, The Computer Glossary, Seventh Edition, by Alan Freedman, American Management Association.  Do you agree with the definition of "telecommunications" there, covering data, text, pictures, voice and video over long distance?

          A.     Yes.

          Q.     They include "text" in telecommunications, but not in telephony, do they?  If you turn over to page 25, we see:

"telephony  The science of converting sound into electrical signals, transmitting it within cables or via radio and reconverting it back into sound."

Right?

          A.     That is what they say, yes.

          Q.     Obviously, their definition of "telecommunications" is different than "telephony," isn't it?

          A.     Yes, it is.

          Q.     Telephony requires, according to them, the communication of sound over distance.  Right?

          A.     That is what they say, yes.

          Q.     Again, this is another dictionary that you say is not broad enough.

          A.     That is right.

          Q.     And it is a 1995 edition. 

          Now we come to Newton's Telecom Dictionary. The Official Glossary of telecommunications acronyms, terms and jargon.

          A.     Yes.

          Q.     Then we have a little update.  This is the third edition.  You have the seventh edition, do you?

          A.     Yes.

          Q.     Where is it so that we can see some of the other interesting definitions they have?

          A.     It is in the library in my office.

          Q.     I see.  We looked all over in Toronto, and they didn't seem to have the seventh edition, not even bookstores.  Are you familiar with where we could get it?

          A.     I know you can buy it from Mr. Newton's company.

          Q.     Where is that?

          A.     It is in New York City.

          Q.     Is he a friend of yours?

          A.     I have met him, yes.

          Q.     When we come to the definition of "telephone" at page 30, we have Mr. Newton's serious, scientific ‑‑ do you know if this man has any academic qualifications?

          A.     No, I don't believe he ‑‑ I know he has an M.B.A. from Harvard.  I don't know beyond that.

          Q.     Is he an electrical engineer, an electronics engineer at all?

          A.     I am afraid I don't know all of Mr. Newton's academic qualifications.

          Q.     "Telephone 1. An invention of the devil."

Did you find this in your dictionary?

          A.     Yes, I did.

          Q.     You didn't tell the Tribunal about that definition.  Why was that?

          A.     As I testified, I was asked at eight o'clock on Friday morning to find a definition of "telephony" and bring it with me, and that is what I did.

          Q.     So you did find "telephone", but you didn't think it was an important thing to bring to their attention, that maybe this wasn't the most serious dictionary in the world.

          MR. FREIMAN:  That is a mischaracterization of what the witness just said.

          MR. CHRISTIE:  I agree that it is.  It is an interpretation of what I suggest he did.

          Q.     Why wouldn't you have mentioned that this dictionary is a bit less than serious?  If you knew this definition, why didn't you tell the Tribunal that?

          A.     I think it is a very serious dictionary.

          Q.     Okay, let's go on.

          "2.  The most intrusive device ever invented.  3.  The biggest time waster of all time, as in: 'What did you do all day?' 'Nothing.  Just spent the day on the phone.' 4.  Also a truly remarkable invention.  Here's a list of the eight things a telephone does, according to Understanding Telephone Electronics:"

So he quotes another source.  Are you familiar with that source?

          A.     Yes, I am.

          Q.     Is it credible, too?

          A.     It is acceptable, yes.  It is published, actually, by a supplier of equipment, so I would interpret what it said in that light.

          Q.     "1. When you lift the handset, it signals you

wish to use the worldwide phone system.

2. It indicates the phone system is ready for your wish by receiving a tone, called a dial tone.

3. It sends the number of the telephone to be called.

4. It indicates the progress of your call by receiving tones ‑‑ ringing, busy, etc.

5. It alerts you to an incoming call.

6. It changes your speech into electrical signals for transmission to someone distant.  It also changes the electrical signals it receives from the distant person to speech so you can understand them."

          Interestingly, it seems to imply that it communicates speech, doesn't it, sir?

          A.     That is one of the things a telephone does, certainly.

          Q.     Does it say that it does anything else?

"7. It automatically adjusts for changes in the power supplied to it.

8. When you hang up, it signals the phone system your call is finished.

          And, most remarkably, most simple telephones cost under $50.  Wait until you see what ISDN phones will cost."

          That is not serious, is it?

          A.     Mr. Newton has written a dictionary which is easily readable by non-technical people.  He includes as a result ‑‑ and I sometimes think perhaps too much ‑‑ some jokes and funny comments as he goes.  His definitions are all eminently usable and practical, which makes it a very useful dictionary.

          Q.     So that definition is usable and practical, is it?

          A.     Yes.

          Q.     So you agree with it when it says that telephony changes speech into electrical signals and receives from distant persons back into speech that you can understand.  That is what it says.

          A.     No, it doesn't say that.

          MR. FREIMAN:  I wonder if Mr. Christie could stop characterizing "telephony" and "telephone" as being the same word.  When he uses "telephone," it should not be called telephony and vice versa.

          MR. CHRISTIE:  I agree.  My error, I apologize.

          Q.     "Telephone" he defines as an instrument to change speech into electrical signals for transmission to someone distant; it also changes the electrical signals it receives from a distant person to speech so you can understand it.

          Isn't that the essential core of the definition in here?

          A.     Yes.

          Q.     "Telephony", when we come to page 32 ‑‑ and I think I have pronounced it correctly this time ‑‑ is:

"Converting voices and other sounds into electrical impulses for transmission by wire or other means over distances greater than what you can hear by shouting."

Right?

          A.     Yes.

          Q.     Do you agree with that definition?

          A.     As you know, in his seventh edition he broadened it.  In his seventh edition he broadened that definition.

          Q.     We will come to that, and I will suggest to you that it is not so.  You don't agree with the definition in his third edition; is that your position?

          A.     Once again, I agree with it, but it is too narrow.

          Q.     Why would you like it to be broader?

          A.     Because telephony includes more things than are described here.

          Q.     Until your evidence and Mr. Newton's seventh edition, which we will come to, it has never been suggested anywhere that it involves more than the transmission of audible sound, has it?

          A.     I am not familiar with what has been suggested.  I have only been here during my own testimony.

          Q.     You are an expert.  I asked whether you can point to any other source, other than your opinion and Mr. Newton's seventh edition, where in any credible dictionary or lexicon of the English language telephony has ever referred to more than the communication of sound over distance.

          A.     I have not read every source.  In the sources you cite here, I agree that they frequently mention sound, perhaps consistently mention sound, in those definitions.  Mr. Newton's dictionary is the one we use routinely in our organization, and I know of thousands of organizations that do.  I would assume that, if they looked up "telephony," they would find his current definition.

          Q.     I don't know if you understood my question.  I will try again.

          Can you point to any other source, other than your own opinion and Mr. Newton's seventh edition, that has defined it as anything other than transmission of sound over distance?

          A.     I don't have any other source, no.

          Q.     And you agree with me that in his third edition he has definitely, in simple terms, defined it as the transmission of sound over distance.  Right?

          A.     Yes.

          Q.     In Random House Dictionary, 1966, "telephone" is defined as an apparatus, system, or process for transmission of sound or speech to a distant point ‑‑"

          Do you agree with that definition, or do you say that it is too narrow?

          A.     I think, as a definition of "telephone," it works, yes.

          Q.     As a definition of "telephone," it works.

          A.     Yes.

          Q.     "Telephonic:  of, pertaining to, or

happening by means of a telephone system."

          Do you think that is too narrow?

          A.     No, I think that is the definition I gave.  I said "telephony," but telephony relates to telephone systems.

          Q.     We will go to "telephony" which is immediately below it:

"1. the construction or operation of telephones or telephonic systems. 2. a system of telecommunications in which telephonic equipment is employed in the transmission of speech or sound between points, with or without the use of wires."

Do you disagree with that?

          A.     Once again, I think it is too narrow.

          Q.     Then we come to Understanding Data Communications, From Fundamentals to Networking, Second Edition, 1996, Gilbert Held, published by John Wiley & Sons.

          Are you familiar with John Wiley & Sons?

          A.     I am, yes.

          Q.     They publish most of the electronics textbooks that are used in universities, don't they?

          A.     I don't know about most, but they certainly publish a large number of them.

          Q.     This is not a publishing company that is not given credibility in universities, is it?

          A.     It is a publishing company that publishes books that are used in universities.

          Q.     Thank you.

          Under "Telephony" it speaks of and describes the origin of the concept, and it says:

"Using a rudimentary diaphragm, Bell was able to convert sound waves generated by the twang of a clock spring into electric current and then to reconvert the current to sound."

          It does not suggest that "telephony" has acquired any other meaning in this description, does it?

          A.     I would have to read the entire document, since "2.3 Telephony" seems to be the heading for everything else that is here, right to the end of the chapter.

          Q.     I am just suggesting that, when it comes to the definition or description of "telephony", it deals with what it has always meant.  This definition or description has not really suggested that it means anything else, has it?

          A.     I don't see a definition of "telephony" in the top two paragraphs, if that is what you are talking about, sir.

          Q.     You don't see a definition of "telephony."

          A.     No.

          Q.     Then it deals with principles of operation, 2.3.1.  It says:

"In a telephone, the transmitter is used to convert sound waves into electric current which is varied in correspondence to changes in the sound waves.  The transmission medium is a line which carries the electric current to the distant location, while the function of the receiver is to convert the current back into sound waves."

          That certainly implies, at least in this textbook in 1996, that that is the operation of a telephone.  Is that not what you understand?

          A.     Once again, we have someone who has a very narrow definition and I am not sure current.

          For example, he says

"‑‑ the transmitter is used to convert sound waves into electric current which is varied in correspondence to changes in the sound waves."

That would make it an analog telephone.  The telephone that I use daily on my desk does not do that.  It changes sound waves into digital bits.  So I am not sure just how current this gentleman is.  I think he is inadequate in his definition.

          THE CHAIRPERSON:  Where do you get the publication date?  I don't see it printed anywhere.

          MR. CHRISTIE:  If I am not mistaken, sir, it is written in pen.  "1996" is written in pen on the front cover.  I believe that is correct.

          THE CHAIRPERSON:  I see that it is written in pen, but that does not necessarily tell me the publication date.

          MR. CHRISTIE:  I suppose one could be wrong, but I am suggesting that that is the publication date.  We can get a better photocopy of that and identify the date, perhaps.

          Q.     Under "Sound wave conversion" on page 36, clearly the definition provided in a modern textbook of the process of telephone communication clearly implies, if you read that, that it is the process of communicating sound, usually human speech, over distance, isn't it?

          A.     That is what he says.

          Q.     Do you know of any telephones that don't have speakers and microphones?

          A.     What is called a telephone device for the deaf which has been rented by telephone companies for, to my knowledge at least, 25 years does not handle sound as the input or the output device.  It is designed to allow deaf people to make calls on the telephone network.

          Q.     But it is not a telephone, is it?

          A.     It is called a telephone device for the deaf.  That is its name.

          Q.     Yes.  If it was just a telephone, they would call it a telephone for the deaf, but it wasn't because it couldn't work like one.  Isn't that right?

          A.     It's a type of telephone.

          Q.     It's a semantic problem, isn't it?

          A.     Not to me.

          Q.     Not to you, though.  How much do you get paid every day for being here?

          A.     My fee in my contract with the Commission is $1,000 a day.

          Q.     Anything for preparation?

          A.     I am paid the same amount for my preparation time.

          Q.     How many days of preparation went into this case?

          A.     Up until last week, let's say a week and a half ago, I had billed $6,000, so six days.

          Q.     Did you do any special reading or preparation in terms of study?

          A.     To prepare my testimony?

          Q.     Yes.

          A.     None other than reading I would do anyway.

          Q.     I am going to suggest, without going through each of the pages from 36 to 45, that, when they discuss telegraph and telephone, the systems can use the same lines, can't they?

          A.     Telegraphs and telephones?

          Q.     Yes.

          A.     They can, yes.

          Q.     So when you call on a telephone line, it could equally be a telegraph line, couldn't it?

          A.     Yes.

          Q.     The point is that you call that a telephone line, a telephone system, because that is the word you want to use to establish telephonic use to the benefit of your client, the Commission, isn't it?

          A.     I gave the definition that I believe is correct in my professional opinion.

          Q.     But don't you admit that in actual fact the way you define this copper wire ‑‑ you call it a telephone line, you call it a telephone company, you call it a telephone system.  The same copper wire can be used in a different way, in a telegraphic way, can't it?

          A.     Yes.

          Q.     In that case you should really properly call it, for that purpose, a telegraph line, shouldn't you?

          A.     No, I would describe it as a telephone network being used for telegraphy.

          Q.     I see.  You realize that telegraphy is the transmission of other than sound.  Right?

          A.     It is a type of transmission other than sound, yes.

          Q.     It transmits text, usually.

          A.     Usually, actually, it transmits electrical beeps and so on, like Morse code, which people can interpret as text.

          Q.     Actually, when a computer transmits by bits ‑‑ what is a bit, one letter?

          A.     No.  It usually takes at least eight bits to make a letter.

          Q.     So it actually takes several different configurated electronic impulses to make a letter.

          A.     They would be all a sequence of ones and zeros, yes.

          Q.     But the configuration, the variation of ones and zeros as you call it, makes the letter.

          A.     Yes.

          Q.     And each letter consists of several bits.

          A.     Yes.

          Q.     Several electronic impulses.

          A.     Yes.

          Q.     That communicates the letter.

          A.     Yes.

          Q.     But it doesn't communicate a sound, does it?

          A.     There is no sound on any electrical network; it is all electrical.

          Q.     Unless it was being used telephonically, which it can be ‑‑

          A.     No ‑‑

          Q.     ‑‑ and producing sound at the other end, it is not a telephone ‑‑

          MR. FREIMAN:  Could the witness be allowed to answer?

          MR. CHRISTIE:  Could I be allowed to ask?  I wasn't finished my question.  The witness was interrupting me, as did my friend.

          MR. FREIMAN:  It is a triplex question consisting of ‑‑

          MR. CHRISTIE:  Well, why make it triplex?  Why not make it biplex?

          THE CHAIRPERSON:  Let's not talk over one another.  Begin again and put your question to him.

          MR. CHRISTIE:  Thank you.

          Q.     When a computer communicates bits to another computer through a wire, whether it is on the Internet or not, it is not communicating sound.

          A.     That is not correct.

          Q.     Are you sure that a computer can't receive bits without it being in sound?

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

          Q.     It is not communicated over a telephone network in the method of sound, though?

          A.     There is no sound transmitted over a telephone network; there is only electricity.

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

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

          If you will recall the two diagrams that I ‑‑

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

          A.     I certainly will.

          Q.     Do you know whether it is necessary to have a modem to communicate between computers?

          A.     Almost always, yes.

          Q.     When is it not?

          A.     When you have, for example, a digital telephone.  Then you can connect and communicate digitally with no sound throughout the entire process.  That is still very much a minority of the activity.

          Q.     Actually, sir, we will come to that and your knowledge of all those aspects of computer communication that you have alleged you know.

          I would like to deal with one more definition at page 46 from Telephony & Telegraphy A, An Introduction to Telephone and Telegraph Instruments and Exchanges by Sydney Smith, published in 1969 by Oxford University Press.  It says:

          "The ancient Greek word 'tele' means 'far', so the word 'telecommunication' means literally 'communication over long distances'.

          There are, of course, many ways of communicating over long distances, e.g. smoke signals, beacons, drums and semaphore.  For engineering purposes, though, we usually take telecommunication to include only the electrical systems of long distance communication.  Smoke signal technology has little in common with the telephone!

          We can therefore define telecommunication more fully as sending information by electrical means over distances which can be greater than the normal range of the senses.

          The two forms of telecommunication dealt with in this book are:

(a) telephony (from the Greek word 'phone' sound) which enables speech to be conveyed beyond the range of the human voice and hearing, and

(b) telegraphy (from the Greek word 'grapho', I write) which enables written messages to be sent similar distances much faster than a letter can be carried."

          Sir, I suggest that a computer and the Internet can communicate telephonically when voice and other sound is communicated through it, and it can communicate telegraphically when text and pictures are transmitted through it, if we use those terms properly.  Do you agree?

          A.     I have, in my experience in the industry, never heard anyone use the term "telegraphically" to refer to what a computer does when it communicates.  I could imagine somebody doing it; I have just never heard it.

          Q.     Philosophically, have you ever stopped to think about what is actually being transmitted?  If we are communicating images in the form of text or pictures over a distance, we are not communicating sound.  Why would you call it telephony if all the definitions I have given you are the generally accepted ones?

          A.     As I testified on Friday, I view this as relating to telephone networks, and all of that transmission occurs through telephone networks.  If you wanted a loose definition of "telephony," it would be the things you do on telephone networks.  In that sense, they are all using the telephone network.

          Q.     Aren't you using a circular definition?  You call it a telephone network; therefore, anything that is done over it, whether it is telegraphy, whether it is anything else, is telephony according to you.

          A.     I call it a telephone network because it is owned by the telephone companies, because it is primarily used for what we call telephone calls.

          Q.     But they don't call themselves telephone companies any more; they call themselves telecommunications companies because they do more than telephone.  Isn't that right?

          A.     I think you will find that they call themselves many things.

          Q.     What does Bell call itself?  A telecommunications company?

          A.     That is certainly one of the terms ‑‑

          Q.     What do you call yourself?  A telephone expert?  You call yourself Angus what?

          A.     Telemanagement Group.

          Q.     Telemanagement.  I think that is on your web page, and I want to ask you about that.  It says "Angus Telemanagement Group, Independent Expertise in Business Telecommunications."

          A.     Yes.

          Q.     Not telephones.  Right?

          A.     As you have said, telecommunications covers a very wide range of things that are communicated at a distance, and that is what we work with.

          Q.     More than telephones.

          A.     More than telephones, yes.

          Q.     And more than a telephone network.  Right?

          A.     Yes.

          Q.     Going down farther under "General Principles" on page 47, it says:

          "What are telephony and telegraphy?  In telephony, messages are sent and received in spoken form using instruments called telephones.  The sound waves comprising speech are used to control the transmission of electrical signals in the form of alternating currents at the same frequencies as the sound waves and these are used to reproduce the original sounds at the receiving end."

          I suppose you call that another archaic, incomplete definition.  Is that what you are going to say?

          A.     Even at the time that this definition was written, it was not complete because digital technology has been used in the telephone industry and in the telephone network to carry voice even since, to my knowledge, 1958 or 1959.  It is just an incomplete definition.

          Q.     In principle, sir, it defines "telephony", I suggest, whether it be by digital or analog means.  In my submission to you, sir, it is very clear that this definition makes a requirement the transmission of sound.

          A.     It does, but it also makes a requirement that it be sound waves transmitted as alternating currents of the same frequencies, which would mean that it has to be analog and, in fact, digital communication is already going on at this time.  So, yes, there are various parts of the definition that I think are inadequate.

          Q.     Turning the page, it gives a distinction between telephone and telegraph, and it uses the example of a teleprinter.  It says:

          "In telegraphy, messages are sent and received letter by letter as in writing, each letter being represented by its own unique combination of electrical signals according to a pre-arranged code."

That is a definition of "telephony", isn't it?

          A.     Yes, it is.

          Q.     How is that really different from the digital transmission of bits and bytes that assigns a unique electrical signal to each letter?

          A.     I can only suggest that in this case this appears to be a British text.  At the time this gentleman was writing there actually were in Britain completely separate networks that handled the telephone and the telegraph, and he felt it was important to make that distinction.

          Q.     How do you know that, sir?

          A.     Because following the evolution of the telephone industry has been what I have done for 25 years.

          Q.     Have you studied the telegraph system and the telephone system in the United Kingdom and can you actually say that they were over different lines?

          A.     I think I can, yes.

          Q.     Are you sure?

          A.     No, I am not absolutely certain.  I do know that in the United States they were and in Canada they were, so I don't see why they weren't in England.

          Q.     They weren't.  Do you mean to say that the telephone and telegraph systems in Canada used different lines?

          A.     In fact, CNCP, which was the company that ran the telegraph network, had its own physical network, yes.

          Q.     And you don't think that transmitted over telephone lines as well?

          A.     No.  In fact, until 19 ‑‑ I would have to get my date right; I think it was 1979 that the CRTC made a decision that would permit CNCP to connect its lines to the telephone network.  Prior to that they were prohibited from doing so.

          Q.     I see.  So you are saying that telephone lines never transmit or cannot transmit telegraphic messages.

          A.     No, I didn't say that.  I said that the main telegraph system was a completely separate network.  That was the question you asked me about.

          Q.     Yes, it was, and I have your answer.

          With regard to the Shorter Oxford English Dictionary, page 50, your position is that this dictionary definition is wrong, too?  If you want a clearer copy, there is a loose copy attached, because we couldn't photocopy it that well.

          "Telephone" is defined as:

"To convey sound to a distance by or as by a telephone; esp. to send a message or communicate by speaking through a telephone"

Et cetera.  That definition is inadequate, is it?

          A.     This is the Shorter Oxford English Dictionary on Historical Principles you are looking at, sir?

          Q.     I suppose you could say that, but it doesn't make a difference in terms of definition.

          A.     It does, because the definition is preceded by a date, 1879.  How this dictionary works ‑‑ and I use it, so I know that ‑‑ is that it gives you how words were used at various points in time and when they found them.  They are giving the definition they had in 1879.

          Q.     It really wasn't any different than the definition given by the 1997 Bell Telephone Glossary, was it?

          A.     I would have to compare them, but ‑‑

          Q.     Okay, let's do it.  We were looking at "telephone."  The 1879 definition is:

"To convey sound to a distance by or as by a telephone;"

The 1997 definition by the Bell Glossary is:

"A device used mainly for voice communications which converts audible signals into electrical waves, which can then be transmitted over communications channels."

          What's the difference?

          A.     I suppose one of the most important differences ‑‑ and I agree with you that they are similar ‑‑ is that the original definition says "by or as", so it would imply that some other kind of thing could do it.  Otherwise, yes.

          Q.     For "telephonic" it says:

"Transmitting, or relating to the transmission of, sound to a distance; of, pertaining to, of the nature of, or conveyed by a telephone."

          If you want to look at "telephonic" in the 1997 Glossary ‑‑ I don't think they have "telephonic."  Maybe we should look at "telephony" then:

"Name for a system of signalling by means of musical sounds, and for the practice of other early forms of telephone."

They define it in 1997 as:

"The branch of telecommunications which incorporates the transmission and reproduction of speech."

          Certainly the definition has not changed from whenever that was.  It has always been sound, hasn't it?  At least that much is common.

          A.     Yes.

          Q.     Now I come to Newton's, World's No. 1 Selling Telecommunications Dictionary, 7th Expanded Edition and Updated Edition.  Do you know how much it costs?

          A.     I don't recall, but I think it was $20 or $25 U.S.

          Q.     So we come to "telephony" and Mr. Newton says ‑‑ this is definitely not Isaac Newton.  Right?

"The science of transmitting voice, data, video or image signals over a distance greater than what you can transmit by shouting.  The word derives from the Greek for 'far sound.'"

So he agrees on at least the origin of the word.  Right?

          Then it says:

"For the first hundred years of the telephone industry's existence, the word telephony described the business the nation's phone companies were in.  It was a generic term.  In the early 1980s, the term lost fashion and many phone companies decided they were no longer in telephony, but in telecommunications ‑‑ a more pompous sounding term that was meant to encompass more than just voice."

We agree that telecommunications is more than voice, don't we?

          A.     Yes.

          Q.     And telecommunications is what most telephone companies have branched into since 1980.  Right?

          A.     Telephone companies use the term "telecommunications" to describe the broad area that they are in, yes.

          Q.     Then it says:

"The pomposity of the word may have added some value to the stock of telecommunications companies."

This is humour, I guess, is it?

          A.     I presume so.

          Q.     "In the early 1990s, as computer companies

started entering the telecommunications industry, the word telephony was resurrected.  And in a white paper on Multimedia from Sun Microsystems, the company said that telephony refers to the integration of the telephone into the workstation."

Right?

          A.     Yes.

          Q.     Doesn't that mean that a computer can have a telephone component in the workstation, like you described?

          A.     I don't know precisely what they meant in this case, but there is a very large amount of activity in both the computer industry and the telecommunications, or whatever you call it, industry which involves using computers and telephone sets to do the same things and to work together.

          Q.     To put a telephone in the computer.  Right?  Isn't that what that means?

          A.     It may be what they meant, but "integration" is combining, not putting one into the other.

          Q.     But it is not suggesting that telephony is thereby changed, but that a computer can be used for telephonic purposes.  It can have a telephone component.  Isn't that what it says?

          A.     I can't interpret it more than I have.

          Q.     It says:

"And in a white paper on Multimedia from Sun Microsystems, the company said that telephony refers to the integration of the telephone into the workstation."

          I took that to mean ‑‑ and correct me if I am wrong ‑‑ that putting a telephone inside a computer workstation is the trend and direction.  Is that not what it means?

          A.     They did go on ‑‑

          Q.     I will go on.  You think it doesn't make sense up to that point?

          A.     I think at that point it is simply integration.  You have to say what does it do and what is combined in what way.  I think he is trying, at least farther on, to say some of the variations of things you might do.

          Q.     All right.

"For instance, making or forwarding a call will be as easy as pointing to an address book entry.  Caller identification (if available from the telephone company) could be used to automatically start an application or bring up a database file."

          Is that to use a computer as a telephone ‑‑

          A.     No, that is ‑‑

          Q.     ‑‑ to take information from a computer via telephone?  Is that what it is?

          A.     No, it is actually the other way around.  The telephone network on an incoming call can, and often does, transmit information about where the call came from. 

          One of the early applications of what is often called computer telephony was to have the information coming in on the telephone line about where the call is coming from, sending that over to a data base that is on a computer and, for example, bring up information about the call so that you can answer the call already knowing who he is and information about him.  Here we are talking about linking the two systems together.

          Q.     Yes, but it is not necessarily making a telephone call at that point.

          A.     No, it is linking a computer and a telephone, the intelligence of a computer system and a telephone system, to do something new.

          Q.     Right.  Then it says:

"Voicemail and incoming faxes can be integrated with email ‑‑"

That is not necessarily making a phone call, is it ‑‑ integrating those functions?  It is not suggesting that that changes the telephony.

          A.     No, I don't think it is.

          Q.     "Users can have all the features of

today's telephones accessible through their workstations, ‑‑"

Does that change the meaning of telephony?

          A.     As he says earlier in his definition, the word "telephony" covers a broad range of things, but that the computer industry specifically started using it in a certain way in the 1990s.  That is what I think he is talking about here.

          Q.     It hasn't changed the definition of "telephony"; it is just incorporating those functions into workstations, isn't it?  That is exactly what I understand it to mean.

          A.     Excuse me while I read it again to make sure that I understand what you are saying.

          Q.     Just see if you understand what it says.

          A.     No, nothing in what he says would change the definition of telephony; no, sir.

          Q.     It says:

"Users can have all the features of

today's telephones accessible through their workstations, ‑‑"

          A.     Yes.

          Q.     "‑‑ plus the added benefits provided by

integrating the telephone with other desktop functions."

You can have that all in your computer, telephone functions and other functions.  Right?

          A.     Yes.

          Q.     He is not suggesting that the telephone is, therefore, a different creature.

          A.     No, he is not.

          Q.     It is part of the processes that you can get in a modern computer.

          In much of what you have said, you are relying on your experience, I take it, with regard to the Internet.

          A.     And in the telecommunications and telephone industry in general, sir.

          MR. CHRISTIE:  I would like to ask that the dictionary definitions that I have offered be marked as an exhibit for consideration at some future point.

          THE REGISTRAR:  The document entitled "Dictionary Definitions" will be filed as Respondent Exhibit R-3.

EXHIBIT NO. R-3:  Document entitled "Dictionary Definitions"

          MR. CHRISTIE:

          Q.     In relation to what you have called the telephone network, you are saying that it is a network of wires or fibre optic cable or some connecting link.

          A.     Yes.

          Q.     You say that it is a telephone network because it is owned by telephone companies.

          A.     That is certainly the most important thing about it.

          Q.     If the telephone companies suddenly changed their name to a telecommunications company, doesn't that then become a telecommunications network, according to your method of deriving the meaning?

          A.     Telecommunications is a very broad term.

          Q.     I agree.

          A.     Telephony is, as you have said, a narrower term.  In practical terms, the terms "telephone network" and "telecommunications network" are virtually interchangeable in the real world.

          Q.     You know, in the real world words can have all kinds of strange and bizarre meanings, can't they?  People use them slang-wise, not precisely.  Do you find that happens?

          A.     Yes, I do.

          Q.     With regard to computers and the technology of the Internet, personal lexicons are not unusual, I suppose.

          A.     On the whole, actually, people who work in this field full-time tend to use the words fairly precisely because they have to communicate accurately with each other.

          Q.     When you use the term "telephone network", there is nothing magical about that, is there, that makes it a telephone network by any means?

          A.     It is a telephone network because it originally was created when telephones were the main communicating device that you could connect to it.  It has evolved enormously over time.

          Q.     It is now a telecommunications network, isn't it?

          A.     As I said, I think the terms are pretty interchangeable today.

          Q.     It is not the Internet.

          A.     No, it is not.

          Q.     And the Internet is not the telephone system, is it?

          A.     No, it is not.

          Q.     I am looking at page 9 of your presentation.  I am looking at the last paragraph.  We have agreed that the Internet is not the telephone system.  That is true?

          A.     No, it is not.

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

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

          Q.     Or the telecommunications network.

          A.     No.

          Q.     In the last part it says:

"The Internet is a virtual network which operates almost entirely on the telephone network ‑‑"

We just went through that.  Right?

          A.     Yes.

          Q.     "‑‑ that is, on the physical network which

is owned and operated by telephone companies such as the Stentor telephone companies in Canada, MCI and AT&T in the United States."

          Those companies basically are the owners and operators of wire lines.  Right?

          A.     And switching equipment and wireless equipment and many other forms of equipment, yes.

          Q.     And that equipment can be used for a variety of purposes.

          A.     Yes, it can.

          Q.     It could be used for phone calls?

          A.     Yes.

          Q.     It could be used for the communication of bits and bytes?

          A.     Yes.

          Q.     It can be used, I suppose, for telegraphy in some instances?

          A.     It could be.

          Q.     It says:

"The circuits used by the Internet share

the same cables and the same strands of optical fibre as voice phone calls."

Right?

          A.     Yes.

          Q.     That is only true in some cases, isn't it?

          A.     It is true in the immense majority of cases.

          Q.     It is increasingly not so, though, isn't it?

          A.     In the sense that until a couple of years ago it was 100 per cent true and now there is more that is not on the telephone network, yes, increasingly.

          Q.     At page 10 of your materials it says:

"Neither the sender nor the recipient has any control over what route is taken or what physical facilities are used for the various segments of the trip."

That is from the Internet server to a browser.  Right?

          A.     Actually, what I have drawn here is the Internet backbone.  I have not included the browser and the Internet service provider in this diagram.

          Q.     I understand.  It is quite true also that Mr. Zundel would have no control, if he was operating a web site, over what circuits the data is routed through.

          A.     No, he wouldn't.

          Q.     Isn't it true that modems convert computer data into analog electrical waves for transmission on the phone lines?

          A.     Yes, that is what they do, and the reverse.

          Q.     They are actually an acronym for modulation and demodulation.  Is that not right?

          A.     They are an acronym for modulator and demodulator.  Modulation and demodulation is what they do.

          I should add, by the way, that there are modems that translate other things than computer data, such as video modems and so on.  They transmit a variety of things in a form suitable for phone lines, yes.

          Q.     Where does this intermediate conversion of data take place in a modem?

          A.     In a modem itself there is typically a chip, an actual chip in the modem, which are manufactured by companies like Rockwell, that does the job.

          Q.     I am informed that actually the intermediate conversion of data to sound does not take place in a modem at all.

          A.     I am interested in that.

          Q.     Do you know for sure?  I think an electronics engineer would have to answer that.  Right?

          A.     Given that you have to translate it into sound and the modem frequently is actually built into the computer physically, I don't know where else it would take place.

          Q.     But your not knowing is not really knowing, is it?

          A.     As you pointed out, I am not an electrical engineer.

          Q.     And I guess, to be honest, that is an admission that you really don't know the answer to that question.

          A.     My opinion is that I know the answer.

          Q.     On what is that opinion based, in terms of knowledge of electronics?

          A.     It is based on having worked with this type of equipment for 25 years.  It is based on operating an Internet web site myself.  It is based on having used computers personally since 1962 and in business since 1972.

          Q.     So you have actually heard the sound converted, have you, from analog to digital form?  You have heard a modem convert sound?

          A.     You can't hear conversion.  You can, however, hear the sound, if you care to.  I have several modems that actually have speakers on them that let me hear the incoming sound if I want to listen to it.

          Q.     And you can receive data from the Internet without the use of a modem, can't you?

          A.     I can, yes.

          Q.     And many people do.

          A.     Some people do, not very many.

          Q.     How many do you think do?

          A.     I have no idea, but the most common way is through a modem.

          Q.     Have you ever done a survey on this aspect?

          A.     No, I haven't, sir.

          Q.     Do you know of any that has ever been done?

          A.     I know of surveys ‑‑ the way you could connect to the Internet without using a modem would be through a digital connection.  There are many surveys of how many digital telephone lines there are available, for example, and the numbers still rank under 3 or 4 per cent of all telephone lines in North America.

          Q.     When you said "digital telephone lines," you meant to say "digital telecommunications lines," didn't you?

          A.     No, I didn't; I meant to say digital telephone lines.

          Q.     Why do you choose to stick to that term when it is not obviously used in terms of telephony?

          A.     For example, since at least 1985, perhaps 1984, it has been possible to buy what are called ISDN telephones.  Those are actual telephones.  They are used for voice and sound, to use your definitions, but what they do is convert voice directly into a digital form for going out through the telephone network.  They are telephones.

          Q.     What does that have to do with the question?

          A.     You asked me why I insisted on saying it was a telephone line.  What I am saying is that the line that that telephone is connected to is a digital telephone line; that is what it is.

          Q.     It is a line that is capable of communicating electronic information digitally.  Isn't that right?

          A.     Its primary ‑‑ if we want to go back to your definition ‑‑ I don't want to get into an argument.

          Its primary use is to connect a telephone set, and it does connect a telephone set.

          Q.     But it can also connect digital information from two computers.

          A.     It can if you have a special device, usually called a digital modem, which will do the translation from the digital form a computer understands to a digital form the digital telephone line uses.

          Q.     It is quite a different process, isn't it?

          A.     Oh, yes, very different.

          Q.     Isn't it true, with regard to your page 14, that businesses also connect to ISPs via spread spectrum, infrared and CATV lines?

          A.     Could I go through each of those?

          Q.     All right.  What is spread spectrum?

          A.     Spread spectrum ‑‑ radio frequency connections are used, but rarely.  Spread spectrum as a commercial technology for connecting to the Internet is really not very widely available today.

          Q.     It's new, isn't it?

          A.     It is very new; I mentioned it before.  But it does happen.

          CATV ‑‑ the question here would probably relate to actually through a normal cable television connection.  I am not aware of that happening.  I am aware of cases where cable television companies have installed fibre optics and are allowing people to connect to various services using that.

          Q.     There are whole Internet service providers who provide all their services through the cable system in Canada today, aren't there?

          A.     Yes, they are cable companies.

          Q.     No, they are not cable companies.  They can rent their facilities from cable companies, and I can name companies that do it.  Don't you know that?

          A.     I would be very interested to see that because last week, on Thursday or it might have been Wednesday, the CRTC issued an Order to the cable companies asking them to report quarterly on when they would have their networks ready to allow third party access.  This was a complaint that the Canadian Association of Internet Providers filed, that the Canadian cable companies were preventing them from using the cable network, and the cable companies replied that they did not have the technology yet.

          The CRTC last week ordered the cable companies to file quarterly reports on what their progress was in doing this.  At that time, Richard Stursberg, who is the Director of the Canadian Cable Television Association, said that he expected that by next September to be able to set a date.

          Q.     This is a lot of hearsay, but go ahead; you're the expert.  Where was this said ‑‑ in Ottawa, I suppose?

          A.     Yes.

          Q.     There are things that happen in the real world outside Ottawa, aren't there?

          A.     There certainly are.

          Q.     Are you familiar with the fact that, for example, Fairview Technology has been using cable systems for the communication of Internet service provision for quite some time, with a private arrangement?

          A.     No, I am not.

          Q.     You are not familiar with that.  Do you deny that that happens?

          A.     No, I don't deny it happens.  I am saying that I don't know of any case where a third party Internet service provider has been able to rent the use of the local cable network.

          Q.     How many service providers do you communicate with?

          A.     I participate ‑‑ for example, the Canadian Association of Internet Providers has a distribution network on the Internet where they distribute information and have discussions.  I participate in that.  I see their comments regularly.  I have yet to see one say, "We are using the cable network," and I have seen many saying they are not.

          THE CHAIRPERSON:  On that note, Mr. Christie, we will adjourn until 10 o'clock tomorrow morning.

          MR. EARLE:  Mr. Chairman, I was just wondering if Mr. Christie might have any sort of estimate as to how much longer he is going to be with this witness.

          MR. CHRISTIE:  I did give Mr. Freiman an estimate, and he can communicate with Mr. Earle.

          MR. FREIMAN:  Having been caught out once, I don't want to be caught out again.  Would Mr. Christie simply provide before the Tribunal an estimate of how much of tomorrow he might need.

          MR. CHRISTIE:  I would think probably the morning.

          THE CHAIRPERSON:  With this witness?

          MR. CHRISTIE:  I think so.

          MR. EARLE:  So it would be safe, then, if I arrange for the Mayor to be here in the afternoon?

          THE CHAIRPERSON:  Yes.

‑‑- Whereupon the Hearing adjourned at 4:54 p.m.

    to resume on Tuesday, December 16, 1997