Judgments

     T-2765-96

Ernst Zündel (Applicant)

v.

The Attorney General of Canada, Sabina Citron, The Toronto Mayor's Committee on Community and Race Relations (Respondents)

and

The Canadian Human Rights Commission, Canadian Jewish Congress, Canadian Holocaust Remembrance Association, Simon Wiesenthal Centre and The League for Human Rights of B'Nai Brith Canada (Interveners)

Indexed as: Zündelv. Canada (Attorney General) (T.D.)

Trial Division, Evans J."Toronto, March 10; Ottawa, June 15, 1999.

Human Rights — Application for judicial review of CHRC's decision to request appointment of Tribunal to inquire into complaints applicant causing hate messages to be communicated through computer Web site (server computer and Web site manager located outside Canada) — Past speech by Deputy Chief Commissioner on subject of hate propaganda not indication of bias herein — Legal test of bias — Interpretation of enabling statute (communicate telephonically, extra-territorial issue, causing to communicate) by Commission not automatically justifying judicial review — Not appropriate at this stage to determine issue of whether provision in violation of Charter, s. 2(b) as, in any event, recent amendment to Human Rights Act, s. 50(2) giving Tribunal jurisdiction to determine constitutional issue.

Administrative law — Judicial review — Certiorari — CHRC decision to request appointment of Tribunal to inquire into complaints applicant causing hate messages to be communicated through computer Web site — Allegation of bias against Deputy Chief Commissioner — Legal test of bias — Interpretation of enabling statute by Commission not automatically justifying judicial review — Not appropriate at this stage to determine issue of whether provision in violation of Charter, s. 2(b) as, in any event, recent amendment to CHRA, s. 50(2) giving Tribunal jurisdiction to determine constitutional issue.

In response to complaints that Ernst Zündel was causing hate messages to be communicated through a computer Web site (the Zündelsite), the Canadian Human Rights Commission requested the appointment of a Human Rights Tribunal to inquire into complaints.

This was an application for judicial review of the Commission's decision on the following grounds: that the decision was vitiated by bias as a result of statements made by the Deputy Chief Commissioner (DCC) prior to the filing of the complaints and to her subsequent participation in the Commission's decision to refer them for adjudication; that the Tribunal had no jurisdiction to inquire into the complaints because material posted on the Web site was not communicated "telephonically" as required by section 13 of the Canadian Human Rights Act and because the server computer and the manager of the Web site were located outside Canada; that the Commission ought to have dismissed the complaints because they were vexatious and made in bad faith; that to uphold the complaints would violate applicant's right to freedom of expression as guaranteed by the Charter.

Held, the application should be dismissed.

The allegation of bias was made in respect of the DCC on the basis of two speeches she gave, "Combatting Hate Propaganda" and "Hate Propaganda: A Human Rights Perspective", in which she mentioned that the Internet was used for hate propaganda, that Internet hate messages could be treated like telephone hate messages, and that Ernst Zündel was one of the originators of hate messages who were difficult to trace and often operated outside Canada. The applicant alleged that the DCC had thus prejudged the principal questions that the Commission had to decide when considering whether to dismiss the complaints or request the appointment of a Tribunal.

The standard of impartiality required of investigators and members of the Commission, which has no adjudicative role, was at the low end of the spectrum, at least when the basis of the allegation of bias is that a member has expressed views that indicated a pre-judgment of the issues under consideration. In order to succeed, the applicant had to show that the DCC had a closed mind when she participated in the decision to refer the complaint to a Tribunal. Furthermore, the Act contemplated a proactive role for the Commission in the complaints process and conferred on it powers and responsibilities for such matters as public education and information. Its duties thus extended beyond the processing of individual complaints.

A position taken by the DCC at a time when the Commission had no complaint before it should not be regarded as precluding her from later being amenable to persuasion by the substantial volume of material placed before the Commission. She had given no opinion as to whether material posted on the Zündelsite contravened subsection 13(1) of the Act. Her comments did not indicate that she had a closed mind to the disposition of the complaints subsequently made against applicant. Furthermore, the notes for the speeches she had given suggest that they were thoughtful and informative in nature, rather than inflammatory and demagogic.

The Court is reluctant to intervene prior to the determination of a matter by a Human Rights Tribunal. Courts no longer regard the interpretation of statutory provisions defining the regulated conduct ("communicate telephoni-cally", extra-territorial issue, "causing to communicate") as ipso facto "jurisdictional" in nature. Furthermore, the Commission's decisions are normally reviewable on a standard of rationality, not correctness. The Commission's decision should only be quashed if there was no rational basis in law or on the evidence to support the decision that an inquiry by a Tribunal was warranted in all the circumstances.

The matters raised by applicant challenge the legal authority of the Commission and the Tribunal to regulate material available on the Internet, which is fast becoming one of the most powerful media of mass communication. The benefits to be obtained from awaiting the Tribunal's considered determination of questions of this complexity, novelty and importance clearly outweigh the costs to applicant, and to the pubic purse, of permitting the administrative process to run its course before the matter is fully reviewed by the Court.

As to the substantive issues, first, on a consideration of the language of the Act, the evidence and the interpretative approach to be taken to human rights legislation, it could not be said that the position adopted by the Commission on the interpretation of the word "telephonically" lacked a rational basis. And the Tribunal must be permitted to make findings of fact about technical aspects of Internet communication, and to give its considered interpretation of section 13 in the light of the arguments of counsel and its own understanding of the purposes of the Act. As to the "extra-territorial issue", a person in Canada causes material to be communicated for the purpose of section 13 if that person effectively controls the content of material posted on a Web site that is maintained outside Canada. It should be left to the Tribunal to decide whether the evidence adduced at the hearing is sufficient to establish that applicant was causing material to be communicated within the meaning of section 13. The argument, that those who accessed the Zündelsite from their computers caused the material to be communicated, was mere sophistry.

That Sabina Citron was a survivor of the Holocaust and had failed in an attempt to have applicant convicted of a criminal offence arising from his publications did not mean that her complaint was made in bad faith.

It was not appropriate to determine the constitutional issue at this point. The decision under review was that of the Commission to request the appointment of a Tribunal, and it could not be set aside on a Charter ground if the Commission lacked jurisdiction to decide that question for itself. The Commission did not have legal authority to determine the validity of a provision in its enabling legislation. Accordingly, the Commission's decision could not be set aside on the ground that invoking section 13 against applicant in connection with the material posted on the Zündelsite would deprive him of his right to freedom of expression under paragraph 2(b) of the Charter, a deprivation that could not be justified under section 1. The section 1 issue is more appropriately adjudicated at first instance by the Tribunal.

The Tribunal has implied statutory authority to determine whether it is constitutionally permissible to apply section 13 of the Act to the facts before it. In any event, a recent amendment to section 50(2) of the Canadian Human Rights Act has laid to rest whatever doubt there might otherwise have been about the Tribunal's jurisdiction to determine the Charter question raised on behalf of applicant.

statutes and regulations judicially considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b).

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2 (as am. by S.C. 1996, c. 14, s. 1; 1998, c. 9, s. 9), 13, 27(1)(a),(b),(h) (as am. idem, s. 20), 40(3), 41(1) (as am. by S.C. 1995, c. 44, s. 49), 44(3)(a) (as am. by S.C. 1998, c. 9, s. 24), (b) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64), 49(1) (as am. by S.C. 1998, c. 9, s. 27), 50(2) (as am. idem).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5).

Interpretation Act, R.S.C., 1985, c. I-21, s. 44(c),(d).

cases judicially considered

applied:

Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; (1989), 62 D.L.R. (4th) 385; 100 N.R. 241; Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574; (1994), 73 F.T.R. 161 (T.D.); Canadian Broadcasting Corp. v. Canadian Human Rights Commission et al. (1993), 71 F.T.R. 214 (F.C.T.D.); Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113; (1998), 167 D.L.R. (4th) 432 (C.A.); Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 50 Admin. L.R. 1; 36 C.C.E.L. 117; 91 CLLC 14,023; 4 C.R.R. (2d) 12; 126 N.R. 1; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; (1996), 140 D.L.R. (4th) 193; 43 Admin. L.R. (2d) 155; 26 C.C.E.L. (2d) 1; 40 C.R.R. (2d) 81; 204 N.R. 1.

distinguished:

Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al. (1997), 127 F.T.R. 44 (F.C.T.D.); Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241; E.A. Manning Ltd. v. Ontario Securities Commission (1995), 23 O.R. (3d) 257; 125 D.L.R. (4th) 305; 32 Admin. L.R. (2d) 1; 7 C.C.L.S. 125; 80 O.A.C. 321 (C.A.).

considered:

R. v. Pickersgill et al., Ex parte Smith et al. (1970), 14 D.L.R. (3d) 717 (Man. Q.B.); Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R. 1.

referred to:

Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; (1990), 75 D.L.R. (4th) 577; 13 C.H.R.R. D/435; 3 C.R.R. (2d) 116; Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission) (1993), 13 O.R. (3d) 824; 109 D.L.R. (4th) 214; 12 Admin. L.R. (2d) 267; 93 CLLC 17,017; 65 O.A.C. 227 (Div. Ct.); Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 1213; (1990), 75 D.L.R. (4th) 425; [1991] 2 W.W.R. 178; 52 B.C.L.R. (2d) 145; 46 Admin. L.R. 264; 2 M.P.L.R. (2d) 288; 116 N.R. 68; Zündel v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 233; (1997), 154 D.L.R. (4th) 216; 7 Admin. L.R. (3d) 126; 221 N.R. 213 (C.A.); Regina (City) Police v. Saskatchewan (Human Rights Commission) (1992), 98 D.L.R. (4th) 51; [1993] 1 W.W.R. 577; 105 Sask. R. 100; 8 Admin. L.R. (2d) 1 (C.A.); Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; (1971), 18 D.L.R. (3d) 1; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 51 A.P.R. 237; 79 CLLC 14,209; 26 N.R. 341; Winnipeg School Division No. 1 v. Craton et al., [1985] 2 S.C.R. 150; (1985), 21 D.L.R. (4th) 1; [1985] 6 W.W.R. 166; 38 Man. R. (2d) 1; 15 Admin. L.R. 177; 8 C.C.E.L. 105; 85 CLLC 17,020; 61 N.R. 241; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; (1987), 40 D.L.R. (4th) 193; 27 Admin. L.R. 172; 87 CLLC 17,022; 76 N.R. 161; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; (1990), 75 D.L.R. (4th) 577; 13 C.H.R.R. D/435; 3 C.R.R. (2d) 116.

authors cited

Gosnell, Chris. "Hate Speech on the Internet: A Question of Context" (1997-98), 23 Queen's L.J. 369.

APPLICATION for judicial review of a decision of the Canadian Human Rights Commission to request the appointment of a Human Rights Tribunal to inquire into complaints made against Ernst Zündel that he was causing hate messages to be communicated through a computer Web site. Application dismissed.

appearances:

Douglas Christie for applicant.

Marlene I. Thomas and Michael H. Morris for respondent.

Robert P. Armstrong and Wendy M. Matheson for respondent Sabina Citron and intervener Canadian Holocaust Remembrance Association.

Andrew A. Weretelnyk for respondent Toronto Mayor's Committee on Community and Race Relations.

René Duval for intervener Canadian Human Rights Commission.

solicitors of record:

Douglas Christie for applicant.

Deputy Attorney General of Canada for respondent.

Tory Tory Deslauriers & Binnington, Toronto, for respondent Sabina Citron and intervener Canadian Holocaust Remembrance Association.

City of Toronto (Legal Department), Toronto, for respondent Toronto Mayor's Committee on Community and Race Relations.

Canadian Human Rights Commission, Ottawa, for intervener Canadian Human Rights Commission.

The following are the reasons for order rendered in English by

Evans J.:

A.    Introduction

[1]This application for judicial review arises from a decision of the Canadian Human Rights Commission to request the appointment of a Human Rights Tribunal to inquire into complaints made against Ernst Zündel by Sabina Citron and the Toronto Mayor's Committee on Community and Race Relations.

[2]The complainants alleged that Mr. Zündel was violating section 13 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 by causing hate messages to be communicated through a computer Web site known as the "Zündelsite", which can be readily accessed through the Internet. The server for the Web site, and the person who manages it and posts material on it, are located in California. The complainants took objection to material on the "Zündelsite" claiming that the scale of the Holocaust has been greatly exaggerated; they alleged that this material was likely to expose persons of the Jewish faith or ethnicity to hatred or contempt.

[3]In this application for judicial review Mr. Zündel challenges on five grounds the Commission's decision to request the appointment of a Tribunal, and the jurisdiction of the Tribunal to inquire into the complaints. First, the Commission's decision to request the appointment of a Tribunal is vitiated by bias as a result of statements made by the Deputy Chief Commissioner prior to the filing of the complaints and to her subsequent participation in the Commission's decision to refer them for adjudication. Second, the Tribunal has no jurisdiction to inquire into these complaints because material posted on the Web site in the form of text and graphics is not communicated "telephonically" as required by section 13. Third, a Tribunal has no jurisdiction to hear and determine these complaints because the server for the Web site is located outside Canada, as is the person responsible for selecting what is posted on it, who is the only person able to enter the material. Fourth, the Commission ought to have dismissed the complaints because they were vexatious and made in bad faith. Fifth, for the Tribunal to uphold the complaints would infringe Mr. Zündel's right to freedom of expression as guaranteed by paragraph 2(b ) of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982 c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].

[4]Mr. Zündel asks the Court to quash the Commission's decision to refer the complaints to the Canadian Human Rights Tribunal, and to prohibit the Tribunal from continuing to hear a matter that is not within its jurisdiction. I should add by way of background that the Tribunal commenced its inquiry into the complaints in May 1997 and since then has held 41 days of hearings. Prior to the applications for judicial review instituted by Mr. Zündel in this Court, the Tribunal had planned to complete the hearings this May.

B.    Legislation

[5]The following are the provisions of the Canadian Human Rights Act relevant to this proceeding [ss. 27(1)(h) (as am. by S.C. 1998, c. 9, s. 20), 41(1) (as am. by S.C. 1995, c. 44, s. 49), 44(3) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 64), s. 64), 49(1) (as am. by S.C. 1998, c. 9, s. 27), 50(2) (as am. idem)]:

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

(2) Subsection (1) does not apply in respect of any matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

    . . .

27. (1) In addition to its duties under Part III with respect to complaints regarding discriminatory practices, the Commission is generally responsible for the administration of this Part and Parts I and III and

(a) shall develop and conduct information programs to foster public understanding of this Act and of the role and activities of the Commission thereunder and to foster public recognition of the principle described in section 2;

(b) shall undertake or sponsor research programs relating to its duties and functions under this Act and respecting the principle described in section 2;

    . . .

(h) shall, so far as is practical and consistent with the application of Part III, try by persuasion, publicity or any other means that it considers appropriate to discourage and reduce discriminatory practices referred to in sections 5 to 14.1.

    . . .

40. . . .

(3) Where the Commission has reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice, the Commission may initiate a complaint.

    . . .

41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that

    . . .

(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or

    . . .

44. . . .

(3) On receipt of a report referred to in subsection (1), the Commission

    . . .

(b) shall dismiss the complaint to which the report relates if it is satisfied

    . . .

(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).

    . . .

49. (1) At any stage after the filing of a complaint, the Commission may request the Chairperson of the Tribunal to institute an inquiry into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted.

    . . .

50. . . .

(2) In the course of hearing and determining any matter under inquiry, the member or panel may decide all questions of law or fact necessary to determining the matter.

C.    Issues and Analysis

1.    Bias

(i)  factual background

[6]The question here is whether a speech that Michelle Falardeau-Ramsay had made when she was Deputy Chief Commissioner of the Commission tainted with bias the Commission's subsequent decision, in which she participated, to refer the complaints about the "Zündelsite" to a Human Rights Tribunal.

[7]Counsel for Mr. Zündel also raised a question of bias in respect of another Commission member, Mr. Reiser, but since he did not participate in the Commission's decision to refer, I see no merit in this objection. At the hearing of the application for judicial review counsel did not press the argument contained in his memorandum alleging a more "systemic" bias in the Commission against Mr. Zündel and his views. In my opinion these allegations clearly do not constitute bias, and I propose to say no more about them.

[8]The most significant allegation of bias made on behalf of Mr. Zündel was that Ms. Falardeau-Ramsay was disqualified for bias on the basis of speaking notes that had been prepared for two speeches that she gave. One speech, "Combatting Hate Propaganda", was given in Toronto on November 30, 1995 to the Community, Race and Ethnic Relations Committee of North York, and the other, "Hate Propaganda: A Human Rights Perspective", was given in Ottawa on March 16, 1996 to the Association des civilistes.

[9]It is important to note that both speeches were delivered before the Toronto Mayor's Committee and Ms. Citron filed their complaints against Mr. Zündel with the Commission, on July 18, 1996 and September 25, 1996 respectively.

[10]There was a very considerable overlap in the content of the two speeches. As might be inferred from their titles, the general themes of the speeches were that hate messages threatened human rights, and that the Canadian Human Rights Act contained provisions for dealing with them that were more appropriate and effective than the criminal law. Ms. Falardeau-Ramsay identified as an important current problem the fact that groups were finding ways of delivering "hate messages" through music and other means that were attractive to young people and made it hard to track down the originators.

[11]She referred to the successes that the Commission had had against the purveyors of "hate propaganda" who had used pre-recorded telephone messages, in particular the decision of the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor , [1990] 3 S.C.R. 892. She mentioned other groups whose "hate lines" had subsequently been shut down, including that of the Canadian Liberty Net, which, although she did not say so, had located its pre-recorded message in New York.

[12]She then turned to the Internet as the most recent and important source of "hate propaganda". She argued that new legislation was not necessary to deal with this phenomenon: section 13 of the Canadian Human Rights Act was adequate for the task. The following are the passages from Ms. Falardeau-Ramsay's speeches that are most pertinent to this application for judicial review.

Since a computer modem operates through telephone lines, hate messages on the Internet would be considered "telephonic communication" . . . .

    . . .

While the Commission has not yet received any formal complaints regarding hate on the Internet, we expect that we will as the Internet becomes more widely accessible to the general public. When and if we do receive complaints we intend to treat them in exactly the same way as complaints regarding hate on the telephone: we would investigate them and, if we believe the messages constitute hate propaganda and we cannot resolve the situation by other means, we should send them to a Human Rights Tribunal, as we did the telephone hate messages.

We recognize that from a technological perspective, Internet hate poses some different problems from hate on the telephone, since the originators of the Internet messages are more difficult to trace and often operate outside Canada.

[13]Ms. Falardeau-Ramsay concluded by noting that some opponents of hate propaganda were also strongly opposed on civil libertarian grounds to government regulation of the content of the Internet. She then noted that some of them were using the Internet very effectively to counter hate propaganda, and suggested that the Internet will be a powerful medium for the broad dissemination of material discrediting hatemongers, including those who deny the historical reality of the Holocaust.

[14]In her speech of March 16, 1996 Ms. Falardeau-Ramsay identified Mr. Zündel as one of the originators of hate messages who are "more difficult to trace and often operate outside Canada":

When Ernst Zündel's Internet access provider cancelled his account because of the content of his messages, he quickly set up an account with another company.

[15]It has been an important part of the applicant's response to the complaints that have given rise to these proceedings that there are important differences of legal significance between pre-recorded telephone messages, and the "Zündelsite". These differences, Mr. Zündel has contended, take the communication of material available on a Web site located in the United States outside the scope of section 13. Mr. Zündel has also denied that the content of the material posted on the "Zündelsite" infringes section 13 of the Canadian Human Rights Act .

[16]Consequently, counsel for Mr. Zündel maintained that the statements by Ms. Falardeau-Ramsay disqualified her on the ground of bias from participating in the Commission's decision to refer to the Tribunal the complaints subsequently made against the "Zündelsite" by the Toronto Mayor's Committee and Ms. Citron. These speeches, he argued, indicated that the Deputy Chief Commissioner had prejudged the principal questions that the Commission had to decide when it considered whether to dismiss the complaints or to request the appointment of a Tribunal.

(ii)  the legal test of bias

[17]It is not a matter of dispute that the Commission is subject to the duty of fairness when exercising its statutory powers to investigate complaints and to decide whether they should be dismissed or the appointment of a Tribunal requested: Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 (SEPQA). It is equally clear that the duty of fairness requires that the Commission and its investigators be free from bias: Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.).

[18]Just as the content of the participatory rights conferred by the duty of fairness vary according to the legal, administrative and factual contexts from which the dispute arises, so does the standard of impartiality required of an administrative agency. Thus, administrative agencies exercising adjudicative functions, including human rights tribunals, are held to a high standard of impartiality approaching that applicable to courts: see, for example, Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission) (1993), 13 O.R. (3d) 824 (Div. Ct.). On the other hand, a much lower standard has been applied to municipal councillors voting on a zoning bylaw in the exercise of legislative powers: Save Richmond Farmland Society v. Richmond (Township), [1990] 3 S.C.R. 1213.

[19]In my opinion the standard of impartiality required of investigators and members of the Commission is at the low end of the spectrum, at least when the basis of the allegation of bias is that they have expressed views that indicate a pre-judgment of the issues under consideration. In order to succeed in his challenge in this case the applicant must show that Ms. Falardeau-Ramsay had a closed mind when she participated in the Commission's decision to refer the complaint against Mr. Zündel to a Tribunal. I base this conclusion on the following three considerations.

[20]First, the Commission is not an adjudicative body that determines the legal rights of individuals. In the scheme of the Canadian Human Rights Act the Commission is the body that screens and investigates complaints, deciding which should be dismissed and which referred on for adjudication by a Tribunal: Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854. As a non-adjudicative body the Commission owes to complainants and respondents a duty of fairness with a much lower content than that owed by a Tribunal to which a complaint is referred for adjudication: SEPQA, supra; see also Zündel v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 233 (C.A.) (standard of impartiality applicable to the Security Intelligence Review Committee dependent on the adjudicative or investigatory nature of its powers).

[21]For this reason it has been held with respect to both a provincial human rights commission (Regina (City) Police v. Saskatchewan (Human Rights Commission) (1992), 98 D.L.R. (4th) 51 (Sask. C.A.)), and the Canadian Human Rights Commission (Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al. (1997), 127 F.T.R. 44 (F.C.T.D.)) that the closed mind test of bias is applicable to investigators and the Commission. As Noël J. (as he then was) said in Canadian Broadcasting Corp. v. Canadian Human Rights Commission et al. (1993), 71 F.T.R. 214 (F.C.T.D.), at page 225, when considering the test of bias applicable to the Commission:

The test, therefore, is not whether bias can reasonably be apprehended, but whether, as a matter of fact, the standard of open-mindedness has been lost to a point where it can reasonably be said that the issue before the investigative body has been predetermined.

[22]This test had been formulated earlier in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 63, where the impartiality of a member of the Board was challenged on the basis of statements that he had made in the media about a matter that the Board was investigating prior to moving to the adjudicative stage of the process. In delivering the judgment of the Court Cory J. said (at page 642):

During the investigative stage, a wide licence must be given to board members to make public comment. As long as those statements do not indicate a mind so closed that any submissions would be futile, they should not be subject to an attack on the basis of bias. [Emphasis added.]

[23]The facts of the case before me are not identical to those in the cases considered above. In Regina (City) Police, Canadian Broadcasting Corp. and Bell Canada the bias alleged was that of an investigator, not a member of the Commission. And, in Newfoundland Telephone the allegation of bias arose from statements made by a Board member while a matter was in the investigative stage of the statutory process.

[24]Nonetheless, in my opinion they are applicable to the facts of this case because the Commission has no adjudicative phase to its process: it can only decide whether to request a Tribunal or to dismiss the complaint. Moreover, the statements made by Ms. Falardeau-Ramsay that Mr. Zündel alleges constituted a pre-judgment were made before the Commission had even received complaints about the "Zündelsite".

[25]Of course, while the Commission's decision did not decide Mr. Zündel's legal liability under section 13 it obviously had serious consequences for him. In particular, it exposed him to the expense, anxiety and commitment of time inevitably associated with lengthy legal proceedings, not to mention the risk of an adverse determination of his rights by the Tribunal. However, I should also note parenthetically that for those, like Mr. Zündel, whose political views are well out of the mainstream, Tribunal hearings may provide a not altogether unwelcome publicity that they would not otherwise receive.

[26]The second reason for not imposing on the Commission the adjudicative standard of impartiality, namely, a reasonable apprehension of bias, is that the Act contemplates a proactive role for the Commission in the complaints process. In particular, subsection 40(3) of the Act authorizes the Commission to initiate a complaint when it has reasonable grounds to believe that a person is engaging or has engaged in discriminatory conduct contrary to the Act. In such a situation the Commission would inevitably approach its consideration of the investigator's report and any submissions made to it with some predisposition towards the issue to be decided.

[27]Subsection 40(3) is not directly relevant to the case before me because complaints about the "Zündelsite" were filed by the Toronto Mayor's Committee and Ms. Citron. However, it does indicate that Parliament did not envisage a purely passive role for the Commission, but contemplated that it might well have a view on whether a person's conduct violated the Act before it came to decide whether to dismiss a complaint or to refer it for adjudication.

[28]Third, subsection 27(1) of the Act confers on the Commission powers and responsibilities that are not limited to the processing of individual complaints. In particular, it is required to develop and conduct information programs to foster public understanding of the Act and of the principle of equality free from discrimination (paragraph 27(1)(a)); to undertake or sponsor research programs relating to its duties under the Act and respecting the principle of equality free from discrimination on the prohibited grounds (paragraph 27(1)(b)); and to try by persuasion, publicity and other means compatible with its duty with respect to the processing of complaints, to discourage or reduce unlawful discrimination (paragraph 27(1)(h)).

[29]These provisions make clear that the statutory role of the Commission in administering the Canadian Human Rights Act and furthering its objectives is not limited to the processing of complaints. Giving public speeches to community and professional groups on current human rights issues is a very appropriate way for members of the Commission, and particularly the Chief Commissioner and the Deputy, to discharge these broader responsibilities.

[30]Paragraphs 27(1)(a) and (h) seem the provisions most apt to provide legal authorization for the speeches made by Ms. Falardeau-Ramsay that are under consideration in this case. Paragraph 27(1)(h), it is true, expressly does not authorize conduct that is incompatible with the duties of the Commission in processing complaints; these include the duty to be free from bias. Nonetheless, it is equally important that the duty of impartiality owed by Commission members not be pitched so high that it undermines members' ability to discharge the Commission's responsibilities for combatting discrimination through public education and information.

(iii)  application of the legal test to the facts

[31]In order to succeed in this application the applicant must demonstrate that the speeches made by Ms. Falardeau-Ramsay indicate that on the balance of probabilities she had a closed mind when she participated in the Commission's decision to request the appointment of a Tribunal to inquire into the complaints. In my opinion he has not discharged this burden.

[32]First, the speeches were made before any complaint was filed against Mr. Zündel with respect to material posted on the "Zündelsite", and the more recent speech was made eight months before the Commission decided to refer the complaints for adjudication. A position taken by Ms. Falardeau-Ramsay at a time when the Commission had no complaint before it should not be regarded as precluding her from later being amenable to persuasion by the substantial volume of material placed before the Commission. It is a serious matter to allege of a member of the Commission that she was so derelict of her legal duty that she did not consider in any meaningful way the report of the investigator and the lengthy submissions made by counsel on behalf of the applicant.

[33]Second, while Ms. Falardeau-Ramsay's speaking notes indicate that she thought that the Commission could deal with hate messages on the Internet by analogy to its recently affirmed power to proceed against those responsible for pre-recorded telephone hate messages, they also noted that technological differences between the Internet and the telephone made it more difficult for the Commission to enforce the Act against originators of hate messages on the Internet. She mentioned in particular the fact that such people often operated from outside Canada. While she included Mr. Zündel in this category, she gave no opinion on whether material posted on the "Zündelsite" contravened subsection 13(1) of the Act.

[34]To put the matter in some perspective it is instructive to compare Ms. Falardeau-Ramsay's statements with those made by Mr. Wells which were the subject of the bias allegation considered in Newfoundland Telephone, supra. Cory J. had this to say (at pages 642-643):

The statements made by Mr. Wells before the hearing began on December 19 did not indicate that he had a closed mind. For example, his statement: "[s]o I want the company hauled in here"all them fat cats with their big pensions"to justify (these expenses) under the public glare . . . I think the rate payers have a right to be assured that we are not permitting this company to be too extravagant" is not objectionable. That comment is no more than a colourful expression of an opinion that the salary and pension benefits seemed to be unreasonably high. It does not indicate a closed mind. Even Wells' statement that he did not think that the expenses could be justified, did not indicate a closed mind. However, should a commissioner state that, no matter what evidence might be disclosed as a result of the investigation, his or her position would not change, this would indicate a closed mind. [Emphasis added.]

[35]In my opinion, the statements made by Ms. Falardeau-Ramsay were, to say the least, no more indicative of a closed mind then those of Mr. Wells. Newfoundland Telephone is a striking illustration of the latitude given by a reviewing court to members of administrative tribunals who make statements prior to the adjudicative stage of an administrative proceeding that may be regarded as a pre-judgment of the issues subsequently to be decided.

[36]In R. v. Pickersgill et al., Ex parte Smith et al. (1970), 14 D.L.R. (3d) 717 (Man. Q.B.) the Court took a similarly tolerant attitude to a speech made by the Chair of the Canadian Transport Commission prior to the start of a hearing that he subsequently conducted into a railway company's application to discontinue a service. Even though the Chair articulated his view on an issue of general policy that had a direct bearing on the application, the Court held that it did not give rise to a reasonable apprehension of bias.

[37]Third, the circumstances surrounding the statements by Ms. Falardeau-Ramsay do not indicate that she probably had a closed mind to the disposition of the complaints subsequently made against Mr. Zündel. For example, the content of the speeches for the most part addressed general issues on the legal regulation of hate messages, especially the contribution made by section 13 of the Canadian Human Rights Act. While she also considered hate messages on the Internet as a sub-topic, the particular passages on which the applicant has based his allegation of bias comprise a very small part of the speeches taken as a whole.

[38]Furthermore, the notes for Ms. Falardeau-Ramsay's speeches suggest that they were thoughtful and informative in nature, rather than inflammatory and demagogic. The audiences to which they were given were appropriate recipients of the Deputy Chief Commissioner's thoughts on the issues that she addressed.

[39]To summarize, in my opinion it would unduly curtail the ability of the Commission to discharge its responsibilities for combatting discrimination outside the complaints process if members were unable to give speeches in these circumstances without thereby disqualifying themselves from subsequently participating in a decision on whether a complaint should be referred to a Tribunal, or dismissed.

[40]In E.A. Manning Ltd. v. Ontario Securities Commission (1995), 23 O.R. (3d) 257 (C.A.), an allegation of bias against Mr. Waitzer, the Chair of the Commission, was made on the basis of a speech that he had given on a policy issue related to a matter that subsequently came for adjudication before a panel of the Commission on which Mr. Waitzer sat. "In making the comments complained of here", said Dubin C.J.O. (at page 271), "Mr. Waitzer was fulfilling his mandate as Chair of the Commission". This sentiment seems to me equally applicable to Ms. Falardeau-Ramsay and the comments to which Mr. Zündel has objected, especially since, unlike Mr. Waitzer, Ms. Falardeau-Ramsey had no adjudicative functions to perform.

2.    The substantive issues

[41]Before dealing with the substantive issues raised by Mr. Zündel as to whether his activities breached section 13 of the Canadian Human Rights Act, I should emphasize the reluctance of the Court to intervene prior to the determination of a matter by a Human Rights Tribunal. I need only to refer to the recent decision to this effect from the Federal Court of Appeal in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113, at page 137, where Décary J.A. said:

. . . it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.

[42]I should note that the substantive ground on which the Commission's decision to refer was challenged in the Bell Canada case related to the facts. Décary J.A. [at page 136] formulated the applicable standard of review of the Commission's decision as follows:

As a screening body the Canadian Human Rights Commission need only show that it could validly have formed the opinion, rightly or wrongly, that there was a reasonable basis in the evidence for proceeding to the next stage. The evidence suggested a possibility of discrimination and that is enough at this stage.

Since the Commission's decision was not "patently unreasonable" the Court did not intervene.

[43]Counsel for the applicant submitted, however, that considerations of prematurity do not justify a similar judicial reluctance to intervene when the issue in dispute is a legal question involving the interpretation of a provision in the enabling statute that defines the "jurisdiction" of the Tribunal. He relied on Bell v. Ontario Human Rights Commission , [1971] S.C.R. 756 for the proposition that a court may prohibit a tribunal from proceeding, before it has even started the hearing, when the issue raised is a "short and perfectly simple question of law".

[44]I do not find this argument persuasive. First, the authoritativeness of Bell has been severely eroded, if not totally destroyed, by the revolution in the law of judicial review of administrative action that started with the decision of the Supreme Court of Canada in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227.

[45]Courts no longer regard the interpretation of statutory provisions defining the regulated conduct as ipso facto "jurisdictional" in nature. Even if the Tribunal's interpretation of the words "communicated telephonically" are ultimately reviewed on a standard of correctness, the reviewing court will want the benefit of the Tribunal's considered decision, will be reluctant to encourage piecemeal challenges to administrative proceedings and will defer to any findings of fact that inform the Tribunal's legal conclusions.

[46]Furthermore, the Commission's power to refer a complaint to a Human Rights Tribunal has a significant subjective element. A reference may be made under paragraph 44(3)(a) [as am. by S.C. 1998, c. 9, s. 24] or subsection 49(1) when the Commission "is satisfied" that in all the circumstances of the complaint an inquiry is warranted. This signals that the Commission's decisions are normally reviewable only on a standard of rationality, not correctness.

[47]Second, the interpretation of the disputed words of subsection 13(1) is not a "pure question of law" because it will be informed by evidence on the way in which information is communicated through the Internet and, in particular, the part played by the telephone system in accessing and transmitting it. On the modern or functional approach to the interpretation of legislation, questions of law, fact and policy can no longer be regarded as wholly discrete.

[48]Third, when Bell v. Ontario Human Rights Commission, supra, was decided it was not clear to the Court (at pages 769-770) that, if the applicant were prevented from seeking judicial review prior to the hearing of the complaint by the board of inquiry, he would have a remedy after the board had rendered its decision and made a recommendation on the appropriate disposition of the matter. Even though there is no right of appeal from the Canadian Human Rights Tribunal its decisions are fully subject to review in this Court on the grounds contained in subsection 18.1(4) of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)].

[49]Accordingly, I should only quash the Commission's decision and prohibit the Tribunal from continuing to inquire into the complaints against Mr. Zündel if I am satisfied that there is no rational basis in law or on the evidence to support the Commission's decision that an inquiry by a Tribunal is warranted in all the circumstances of the complaints. Any more searching examination of the questions of statutory interpretation or application raised by Mr. Zündel should, in my opinion, be deferred until the Tribunal has completed the hearing and rendered a reasoned decision.

[50]The issues raised by Mr. Zündel challenge the legal authority of the Commission and the Tribunal to regulate material available on the Internet, which is fast becoming one of the most powerful media of mass communication. The benefits to be obtained from awaiting the Tribunal's considered determination of questions of this complexity, novelty and importance clearly outweigh the costs to Mr. Zündel, and to the public purse, of permitting the administrative process to run its course before the matter is fully reviewed by the Court.

(i)  "communicate telephonically"

[51]It is a discriminatory practice under subsection 13(1) for a person or a group of persons "to communicate telephonically or to cause to be so communicated . . . by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament" material commonly known as hate messages.

[52]Counsel for Mr. Zündel submitted that material was only "communicated telephonically", and so capable of falling within the scope of subsection 13(1), if the communication involved the transmission of the human voice through the medium of the telephone and telephone wires. He relied heavily on dictionary definitions of "telephone" and "telephonic" to support this interpretation. While sounds can be transmitted between computers, it was agreed that only text and graphics were available on the "Zündelsite".

[53]Furthermore, it was argued, an interpretation of subsection 13(1) that includes messages heard on the telephone, but not material obtained by computer from a Web site, is also supported by policy considerations. In particular, those who access the "Zündelsite" have available to them there material that challenges the "revisionist" view of the Holocaust advanced by Mr. Zündel. In other words, the "Zündelsite" is a less powerful medium of communication than a pre-recorded message on a telephone answering machine because it allows those interested to enter into an active exchange of views, and to gain access to a range of opinions.

[54]Counsel for Ms. Citron, on the other hand, submitted that the adverb "telephonically" should be interpreted broadly so as to include the Internet, on the ground that most users gain access to it by dialling up and using a modem that is plugged into a telephone line outlet, and that information passes in digital form along telephone wires from the "Zündelsite" server to the computer of the person accessing it. The fact that sound, including the human voice, is not being transmitted should not be conclusive. For an overview of the "technical architecture" of cyberspace, see Chris Gosnell, "Hate Speech on the Internet: A Question of Context" (1997-98), 23 Queen's L.J. 369, at pages 372-382.

[55]In support of her position counsel relied on a broader definition of the word "telephonically" contained in Newton's Telecom Dictionary , a not particularly authoritative source. In addition, counsel pointed out that if "telephonically" were given the meaning for which the respondent contended, its presence in the Act would still serve a purpose because it would, for example, exclude communication via satellite.

[56]More importantly, counsel relied on the principle that human rights legislation, being quasi-constitutional in nature, should be given a broad and liberal interpretation. Accordingly, in order to tackle the mischief at which section 13 is aimed, namely the dissemination of hate messages, subsection 13(1) should be interpreted in a manner that accomplishes this goal by including this powerful new medium which relies in part on the telephone system. Subsection 13(2) specifically exempts from subsection 13(1) material that is communicated by the facilities of a broadcasting undertaking. This is because broadcasting is regulated by another federal agency, the CRTC.

[57]There is little doubt that when section 13 was first enacted in 1977 Parliament almost certainly did not intend the adverb "telephonically" to include communication via the Internet because it was not then a widely available medium. However, on a progressive, as opposed to a static interpretation of the Act, a court could conclude that "telephonically" should be construed in light of both the overall purpose of the legislation as set out in section 2 [as am. by S.C. 1996, c. 14, s. 1; 1998, c. 9, s. 9], and technological developments.

[58]In Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, it is true, the Court refused to interpret "family status" as including same sex couples, largely because a contemporaneous amendment to include sexual orientation as a prohibited ground of discrimination had been defeated in the House of Commons. However, there is no evidence that Parliament considered the application of section 13 to the Internet, and rejected it.

[59]Dictionaries, no doubt, still have their place in assisting in the interpretation of statutory language, particularly in identifying the range of meanings that words are capable of bearing in the ordinary use of the English language. However, it is a place of diminishing importance, as courts have increasingly sought to attribute meaning to the text of legislation by placing more weight on the statutory context in which the words are used, and the purposes underlying the legislative scheme.

[60]Indeed, the Supreme Court of Canada has regularly endorsed a broad and purposive approach to the interpretation of human rights legislation in recognition of its quasi-constitutional status: see, for example, Winnipeg School Division No. 1 v. Craton et al., [1985] 2 S.C.R. 150; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114. This is another important reason for no longer regarding Bell v. Ontario Human Rights Commission, supra, as a reliable precedent: in 1970 the Court attached at least as much weight to the respondent's proprietary rights as to the complainant's right not to be the subject of discrimination, which at that time had no quasi-constitutional status.

[61]Therefore, on a consideration of the language of the Act, the evidence and the interpretative approach to be taken to human rights legislation, it cannot be said that the position adopted by the Commission on the interpretation of the word "telephonically" lacks a rational basis. Whether it is correct in law is not for me to decide in this proceeding; that will be for the Court before which any application for judicial review of the Tribunal's decision is brought. Meanwhile, the Tribunal must be permitted to make findings of fact about technical aspects of Internet communication on the evidence before it, and to give its considered interpretation of section 13 in light of the arguments of counsel and its own understanding of the purposes of the Act.

(ii)  the extra-territorial issue

[62]Counsel for Mr. Zündel submitted that section 13 does not permit the Commission and the Tribunal to regulate material posted on Web sites that are located beyond Parliament's geographic reach, when the person in control of the selection and posting of the material is also outside Canada. The fact that interested individuals may access the "Zündelsite" from within Canada was, he submitted, insufficient to justify the extra-territorial reach that the Commission was purporting to give to the Canadian Human Rights Act .

[63]The position of the respondents and of the Commission on this issue was simple. They submitted that subsection 13(1) prohibits people in Canada from communicating hate messages or causing them to be communicated. Mr. Zündel is present in Canada, and the Commission maintains that, while he may not have posted material on the "Zündelsite" himself, and indeed, may be incapable technically of so doing, in fact he controlled the selection of the material that was posted, including many of his own writings, some of which had originally appeared in printed form.

[64]Evidence was tendered to show that the "Zündelsite" was under the supervision of Dr. Ingrid Rimland, "the webmaster", who not only shared Mr. Zündel's views of the Holocaust, but also was paid for her services. The Commission argued that it could be inferred from the communications between Mr. Zündel and Dr. Rimland, from the nature of the relationship between them, and from Mr. Zündel's references to "our `Zündelsite'", and "my webmaster", that Mr. Zündel in fact exercised such a substantial degree of control over what Dr. Rimland posted on the "Zündelsite" that he could be said to be causing the material on the "Zündelsite" to be communicated.

[65]I agree with the proposition that a person in Canada causes material to be communicated for the purpose of section 13 if that person effectively controls the content of material posted on a Web site that is maintained from outside Canada: see further Gosnell, op. cit., at pages 383-387, 389-395.

[66]Whether Mr. Zündel exercised the requisite degree of control over the content of the "Zündelsite" to bring him within section 13 is a question with a very significant factual component. There was sufficient evidence before the Commission on this issue to enable it to conclude that an inquiry into the complaints by a Human Rights Tribunal was warranted. It should be left to the Tribunal to decide whether the evidence adduced at the hearing by the parties is sufficient to establish that Mr. Zündel was causing the material to be communicated for the purpose of section 13.

(iii)  "cause to be communicated"

[67]Counsel argued on behalf of Mr. Zündel that he could not be found to be in violation of subsection 13(1) by reason of having caused the communication of material on the Web site to which the complaints related. His argument was that those who accessed the "Zündelsite" from their computers and called up the material that they wished to see caused it to be communicated: until then it was simply stored in electronic files.

[68]This is the merest sophistry and provides no basis for the Court to intervene in the proceedings now before the Tribunal. It would follow from counsel's submission that the person who opens the morning's newspaper causes its content to be communicated to her, rather than the journalists who wrote the items that are published and printed in the newspaper.

3.    Bad Faith

[69]Counsel for Mr. Zündel submitted that the complaints were "trivial, frivolous, vexatious or made in bad faith" and therefore should have been dismissed by the Commission pursuant to subparagraph 44(3)(b )(ii) and paragraph 41(1)(d) of the Canadian Human Rights Act, not referred to a Tribunal under subsection 49(1). In my opinion, it was open to the Commission on the evidence before it to be satisfied that the complaints did not fall into any of these categories.

[70]The fact that Ms. Citron, a Holocaust survivor, is a determined opponent of Mr. Zündel and his views does not mean that the complaint was made in bad faith. Nor does the fact that she has been unsuccessful in securing Mr. Zündel's conviction for criminal offences on the basis of his publications mean that a complaint to the Commission under the non-criminal scheme established by the Canadian Human Rights Act is vexatious.

4.    The Charter Question

[71]Finally, counsel for the applicant submitted that, if his other arguments failed, as they have, the Commission's decision to request the appointment of a Tribunal to inquire into the complaints should be set aside on constitutional grounds. His argument was that, even if the decision was not erroneous in law on a proper interpretation of section 13 of the Act, that provision was invalid as a violation of the applicant's right to freedom of expression under paragraph 2(b) of the Canadian Charter of Rights and Freedoms.

[72]In Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 the Court held that the section 13 infringed paragraph 2(b) of the Charter but that, as applied to pre-recorded telephone hate messages, it was a reasonable limitation under section 1. It was argued on behalf of Mr. Zündel that Taylor is distinguishable and that the section 1 defence could not be made out with respect to the "Zündelsite".

[73]In my opinion it is not appropriate for me to determine this question in this application for judicial review. The decision under review is the decision of the Commission to request the appointment of a Tribunal, and it may not be set aside on a Charter ground if the Commission had no jurisdiction to decide that question for itself: Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, at pages 37-38.

[74]The Commission does not have legal authority to determine the validity of a provision in its enabling legislation: Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854. Accordingly, this Court cannot set aside the Commission's decision on the ground that invoking section 13 against Mr. Zündel in connection with the material posted on the "Zündelsite" would deprive him of his right to freedom of expression under paragraph 2(b ) of the Charter, a deprivation that could not be justified under section 1.

[75]In my opinion the section 1 issue is more appropriately adjudicated at first instance by the Tribunal, particularly in view of the significant factual element of the defence raised by Mr. Zündel. The Tribunal's decision on the Charter issue, and on any others, can then be the subject of review in this Court on the basis of a solid factual record.

[76]The Tribunal has implied statutory authority to determine whether it is constitutionally permissible to apply section 13 of the Act to the facts before it. In Cooper, supra, at pages 896-897 the Court decided only that the Tribunal had no jurisdiction to determine a Charter challenge to the validity of a statutory restriction on the definition of a discriminatory practice into which a Tribunal may inquire. This is because, given the inability of the Commission to make such a determination, it is not a jurisdiction that the Tribunal could ever exercise.

[77]In any event, subsection 50(2) of the Canadian Human Rights Act has laid to rest whatever doubt there might otherwise have been about the Tribunal's jurisdiction to determine the Charter question raised on behalf of Mr. Zündel.

50. . . .

(2) In the course of hearing and determining any matter under inquiry, the member or panel may decide all questions of law or fact necessary to determining the matter.

[78]This subsection was added to the Act by the amendments introduced by S.C. 1998, c. 9, which were enacted in June 1998, after the Tribunal had commenced its inquiry into the complaints against Mr. Zündel. Even if, contrary to the view that I have expressed, the Tribunal had no jurisdiction before the amendment to subsection 50(2) to determine the constitutional question raised by Mr. Zündel, it does now: Interpretation Act, R.S.C. 1985, c. I-21, paragraphs 44(c) and (d).

D.    Conclusion

[79]For these reasons the application for judicial review is dismissed. Counsel may make written submissions to me on the question of costs within 14 days from the date of this order.