T-209-92
Canadian Human Rights Commission (Applicant)
v.
Canadian Liberty Net and Derek J. Peterson
(Respondents)
INDEXED AS: CANADA (HUMAN RIGHTS COMMISSION) Y.
CANADIAN LIBERTY NET (TD.)
Trial Division, Teitelbaum J.—Vancouver, June 29;
Ottawa, July 9, 1992.
Practice — Contempt of court — Application for finding of
contempt of court under R. 355 for breach of injunction
prohibiting communication of telephone messages identified in
order — Show cause order issued — Messages transmitted
from USA to avoid injunction — Most of messages specifically
prohibited by injunction — Law of contempt reviewed — Stan
dard of proof similar to that in criminal matters: proof beyond
reasonable doubt — Contemptuous activity must be expressly
mentioned in order — Contents of injunction order known to
respondent, partner — Respondents interfering with orderly
administration of justice, thus in contempt of court.
This was an application that the respondents be condemned
for contempt of court under Rule 355 for breaching an injunc
tion order made by Muldoon J. prohibiting them from commu
nicating or causing to be communicated by telephone
messages as identified in the order. His Lordship had found
that these messages were capable of exposing persons to hatred
or contempt due to the fact that the persons spoken of were
identifiable on the basis of race, national or ethnic origin, col
our or religion. Following the issuance of the injunction, a call
to a Vancouver telephone number resulted in a telephone mes
sage given by the respondent, Canadian Liberty Net, directing
the caller to a telephone number in Bellingham, Washington,
U.S.A. in an attempt to avoid the terms of the injunction order.
At the hearing of the show cause order, witnesses for the appli
cant disclosed the contents of the messages they heard in dial
ing the telephone number in question. Most of these messages
were those specifically prohibited by the injunction order. The
issues were whether the respondents, Canadian Liberty Net and
its partner, Tony McAleer, could be found guilty of contempt
in that a telephone message in Canada directed a caller to dial
a number in the U.S.A. to hear a message enjoined to be given
in Canada and whether it was shown, beyond a reasonable
doubt, that respondents had breached the injunction order.
Held, the application should be granted.
The law of contempt was reviewed by the Federal Court of
Appeal in Valmet Oy v. Beloit Canada Ltd. where it was said
that a person cannot be found guilty of contempt of court if the
contemptuous behaviour is not proved beyond a reasonable
doubt, the standard of proof being similar to that applicable in
criminal matters. It was also stated that the activity said to have
constituted the contempt must be one clearly covered by the
prohibition, which implies that it be expressly or by necessary
inference mentioned in the order. The order herein prohibited
the respondents themselves, their servants, agents, volunteers,
co-operants or anyone having knowledge of the injunction
from communicating or causing to be communicated by tele
phonic means those messages or that menu of messages or any
part thereof identified in the reasons for order issued by Mul-
doon J. It was clear from the evidence that both McAleer and
Canadian Liberty Net were made aware of the injunction order
and that the reason they were operating "in exile" in the U.S.A.
was because of their knowledge of the injunction. The
messages carried from, the Bellingham telephone number were
in breach of the injunction order in that they were, for the most
part, the same messages as were prohibited by the order. By
informing persons to call the Bellingham telephone number,
both Canadian Liberty Net and McAleer were causing to be
communicated the prohibited and reprehensible messages. The
evidence clearly showed that this method of causing the pro
hibited messages to be communicated to Canadians was care
fully thought out. By specifically and purposely directing any
one who called the Canadian telephone number to call the
American telephone number to hear the prohibited messages,
the respondents, Canadian Liberty Net and McAleer, acted in
such a way as to interfere with the orderly administration of
justice and were thus in contempt of court.
The messages transmitted by the respondent from its Bel-
lingham telephone number were most reprehensible and an
insult to the peoples against whom they were directed. Not
withstanding the fact that the messages were found to be capa
ble of exposing persons to hatred or contempt in that those per
sons were identifiable on the basis of race, national or ethnic
origin, colour or religion, Canadian Liberty Net and McAleer
persisted in causing to be communicated these hateful and rep
rehensible messages. Breach of the injunction order warranted
a most serious penalty to ensure that this type of behaviour
would not continue.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, RR. 337(2)(b),
335(1),(4).
CASES -JUDICIALLY CONSIDERED
APPLIED:
Cartier, Inc. v. Cartier Men's Shops Ltd. (1988), 21
C.P.R. (3d) 219 (F.C.T.D.); Valmet Oy v. Beloit Canada
Ltd. (1988), 20 C.P.R. (3d) 1; 82 N.R. 235 (F.C.A.).
REFERRED TO:
Cartier, Inc. v. Cartier Men's Shops Ltd. (1990), 32
C.P.R. (3d) 383 (F.C.A.).
APPLICATION for a finding of contempt of court
under Rule 355 for breach of an injunction order
([1992] 3 F.C. 155 (T.D.)) prohibiting the respon
dents from communicating or causing to be commu
nicated by telephone those messages identified in the
order. Application granted.
COUNSEL:
John L. Finlay for applicant.
Douglas H. Christie for respondents.
SOLICITORS:
Arvay, Finlay, Victoria, for applicant.
Douglas H. Christie, Victoria, for respondents.
The following are the reasons for order rendered in
English by
TEITELBAUM J: On March 27, 1992, Mr. Justice
Muldoon issued an injunction order wherein he
ordered Canadian Liberty Net including Cori Keating
and Tony McAleer "and the respondent Derek J.
Peterson, by themselves or by their servants, agents,
volunteers, co-operants or, otherwise, anyone having
knowledge of this injunction, be, and they are hereby
restrained, enjoined and prohibited until a final order
is rendered between these parties and persons in the
proceeding before the Canadian Human Rights Tri
bunal, from communicating or causing to be commu
nicated, by telephonic means those messages or that
menu of messages or any part thereof identified in
the Court's said `reasons for order' issued on March
3, 1992 [[1992] 3 F.C. 155], and they are ordered to
stop emitting said messages, being communications
and messages which are found to be capable of
exposing persons to hatred or contempt by reason of
the fact that those persons are identifiable on the
basis of race, national or ethnic origin, colour or
religion, and in particular, the messages transcribed
in exhibits to the affidavits of Lucie Veillette and
Ronald Yamauchi respectively filed at the hearing on
February 5 and 6, 1992, and recited or referred to in
correspondence between the respective solicitors and
counsel dated March 3 and March 11, 1992, respec
tively, on the Rule 337(2)(b) [Federal Court Rules,
C.R.C., c. 663] proceedings, that is the following
now enjoined and prohibited messages:"
There are approximately seven legal size pages of
messages which are listed in the injunction order.
Mr. Justice Muldoon went on to state, in the said
order:
THIS COURT FURTHER ORDERS that, because the essential
characteristic of the respondents' messages which are enjoined,
is to denigrate, disparage or mock human persons just for their
ancestry, national or ethnic origin, colour or religion, and just
for being who they are, that characteristic and those messages
are found to be capable of exposing such persons to hatred or
contempt by reason of the fact that such persons are identifi
able on the aforesaid basis or bases,
the respondent Canadian Liberty Net, including Cori Keating
and Tony McAleer, and the respondent Derek J. Peterson, by
themselves and/or by their servants, agents, volunteers, co-
operants or otherwise are hereby restrained, enjoined and pro
hibited until a final order or disposition is rendered between
these parties and persons in the Canadian Human Rights Tribu
nal's proceeding, from communicating or causing to be com
municated by telephonic means any messages which denigrate,
disparage or mock persons by reason of their race, ancestry,
national or ethnic origin, colour or religion, or just for being
who they are or what they are in terms of ancestry or religion,
(such as Jews or non Europeans, or non-European-descended
persons); and those respondents shall forthwith stop so emit
ting any such messages until the occurrence of the aforesaid
order or disposition of the said Tribunal;
On June 15, 1992, the applicant presented an ex
parte motion requesting the issuance of a show cause
order naming the respondents and their agents, volun
teers and co-operants. The grounds for the request,
according to the notice of motion are Rules 355(1)
and 355(4) of the Federal Court Rules.
Rule 355. (1) Anyone is guilty of contempt of court who
disobeys any process or order of the Court or a judge thereof,
or who acts in such a way as to interfere with the orderly
administration of justice, or to impair the authority or dignity
of the Court. In particular, any officer of justice who fails to do
his duty, and any sheriff or bailiff who does not execute a writ
forthwith or does not make a return thereof or, in executing it,
infringes any rule the violation whereof renders him liable to a
penalty, is guilty of contempt of court.
(4) No one may be condemned for contempt of court com
mitted out of the presence of the judge, unless he has been
served with a show cause order ordering him to appear before
the Court, on the day and at the hour fixed to hear proof of the
acts with which he is charged and to urge any grounds of
defence that he may have. The show cause order issued by the
judge of his own motion or on application must be served per
sonally, unless for valid reasons another mode of service is
authorized. The application for the issuance of the show cause
order may be presented without its being necessary to have it
served.
The applicant provided, for the issuance of the
show cause order, the affidavit evidence of Liliane
Mercier and Andrew Epstein.
After reading the injunction order and the affida
vits of Mercier and Epstein, I issued a show cause
order returnable before me on June 29, 1992.
At the hearing of the show cause order, I was
presented with an affidavit of an Edward Byers, a
process server, and the affidavit of a Partap Girn, a
process server, who state that they were unable to
serve the respondent Derek J. Peterson with the show
cause order and four other documents, namely, a
notice of motion seeking the issuance of a show
cause order, a copy of the affidavit of Liliane Mercier
together with a transcript of messages from the Cana-
dian Liberty Net in British Columbia and in Belling-
ham, Washington, U.S.A. obtained on June 5, 1992, a
copy of the affidavit of Andrew Epstein an "articled
student" at the law firm of Arvay, Finlay, to which is
attached an affidavit of Roberta Mruk and a copy of a
business record of "B.C. Tel" which, according to
Mr. Epstein, indicates that a Tony McAleer was reg
istered with B.C. Tel as a partner in the Canadian
Liberty Net. A second affidavit of Mr. Epstein is
attached to the affidavit of Partap Girn which is the
injunction order of Mr. Justice Muldoon of March 27,
1992.
The affidavit of Dean Willsie, a process server,
dated June 26, 1992 indicates that he attempted to
serve Cori Keating with the show cause order and
various other documents as with Derek J. Peterson
but was unable to do so. It appears that notwithstand
ing the numerous attempts to find Cori Keating, Mr.
Willsie was unable to do so.
Both Canadian Liberty Net and Tony McAleer
were served with the show cause order on June 15,
1992 and were, on June 23, 1992 served with the affi
davits of Andrew Epstein sworn on June 12, 1992
and June 10, 1992, the affidavit of Liliane Mercier
and notice of motion (see affidavit of service of
Partap Girn and Edward Byers).
Counsel for the respondents Canadian Liberty Net
and Peterson at the hearing before Mr. Justice Mul-
doon, was served with a copy of the show cause order
and the same other documents as was served on
Canadian Liberty Net and McAleer.
The applicant called two witnesses. The respon
dents did not call any witnesses.
Liliane Mercier, an employee of the Canadian
Human Rights Commission stated that on June 5,
1992, in Vancouver, B.C., she dialed telephone num
ber 604-266-9642. The following is the message that,
Ms. Mercier states that she heard:
Hello and welcome to the Canadian Liberty Net Liaison line
for May the 28th. You may be wondering what the new num
ber is for the Liberty Net and if that's what you called for you
won't be disappointed. There may be a few problems with the
system at the moment but we'll be working out those bugs
over the next little while, please be patient. You know that we
can now say exactly what we want without officious criticism
and sanction, so please enjoy our extensive list of new
messages. The new number for the Canadian Liberty Net in
exile is area code 206-734-1306, that's area code 206-734-
1306. Please enjoy our refreshing Liberty Net.
Ms. Mercier states that she telephoned a number in
the United States, area code 206-734-1306 and taped
what she heard on the telephone line. Exhibit A-2 is
the tape of the messages heard by this witness on
June 5, 1992. Exhibit A-1 is the transcript of the
messages heard by Ms. Mercier after dialing number
206-734-1306. The opening of the message is the fol
lowing:
Calling 206-734-1306—Bellingham WA, USA
You have reached the Canadian Liberty Net In Exile, Canada's
computer operated voice message centre to promote cultural
and racial awareness amongst White people. If you are
offended or upset by the free expression of European cultural
and racial awareness press 6 on your touch tone phone and do
not attempt to enter the Canadian Liberty Net. For those of you
who wish to hear our messages press 1 on your touch tone
phone to learn about how to use the system or press 88 to go to
the main menu.
[Pressed 88]
Welcome to the main menu, please note any messages and or
editorial comment found in this system are those of the con
tributor or box holder and do not necessarily reflect the opin
ions and or the intentions of the Canadian Liberty Net. If at
any time you wish to return to the previous menu press 9 on
your touch tone phone.
Now press 1 for the Leadership Forum, press 2 for a Lesson in
History, or press 3 for Miscellaneous Messages, or you can
press 5 to leave a message. Please note once you have left your
message you will be disconnected.
[Pressed 1]
This is the leaders menu. Press 1 for Canada, 2 for the U.S. and
3 for International.
[Pressed 1]
Press 1 to hear from Janice Long, wife of Aryan Nations
Leader Terry Long, press 3 to hear from Ernest Zundel or press
4 to hear from the Heritage Front.
The full message obtained by this witness is found
in Exhibit A-1.
The applicant called as its second witness Mr.
Andrew Epstein, an articled student with the law firm
of Arvay, Finlay. Mr. Epstein states that on May 6,
1992 he called a telephone number 266-9642 to listen
to the following message:
This is April 20 1992 and you have reached the Canadian Lib
erty Net broadcasting from the Soviet Socialist People's
Republic of Canada. The federal court injunction is still in
effect and so we can only provide a limited and sanitized
update. The new U.S. phone line has been ordered but there is
a wait for the installation. We should be up and running by
May 4.
Sorry we were unable to answer the phone on Sunday the 19th,
but we were attending a birthday party. We will be here next
Sunday.
Tom Metzger's hotline will feature a live call-in on Saturday
night from 6 to 9 Pacific, not Wednesday as was previously
announced.
We still need your financial support for the upcoming legal
battle. We have retained Doug Christie to represent the Liberty
Net against the Human Wrongs Tribunal scheduled for May 25
through 29 in Vancouver, location to be announced later. Send
your donations to: Canadian Liberty Net P.O. Box 35683 Van-
couver, B.C. V6M 4G9.
Leave a message after the beep.
As a result of cross-examination, Mr. Epstein
states that he had sworn to an affidavit on June 12,
1992, that a Gordon Mackie had testified before the
Canadian Human Rights Tribunal while Mr. Epstein
was present. Mr. Gordon Mackie was giving evi
dence "saying something regarding the phone line in
question" (page 10, transcript of show cause hearing).
The telephone line in question was 266-9642 in Van-
couver containing the above message.
Mr. Epstein states that when he swore to the affi
davit of June 12, 1992, he did so on the basis of rec
ollection but subsequently he obtained a transcript of
the hearing. He also states that his recollection, on
June 12, 1992, is a verbatim and accurate recollection
and that the said Mr. Mackie informed the Canadian
Human Rights Tribunal that the business records of
B.C. Tel indicate that Tony McAleer was registered
with B.C. Tel as a partner in Canadian Liberty Net.
Exhibit B to Epstein's June 12, 1992 affidavit is a
computer printout of B.C. Tel's records.
266 9642 7 **(BSC) basic information** date: 92/05/20
DEREK J PETERSON DIB CANADIAN LIBERTY NET bp: 92/05/24
sa: 3576 W 36th AVE VAN BC V6N2S2 cid:
ba: 3576 W 36th VAN BC V6N2S2 mda:
key ac: N major acct:
npub: N dep: $0 no dir: 001 svc: B org date: 91/10/09
cc: 8 trl: $99999 no bil: 1 cr ch ex: N inst date:
forms: trmt his: 000000 tx sta: TT da ex: N out date:
rocp: N ---T--- cr cd: N rate grp: 14 out on:
10 ci PR/TONY MCALEAR 3221629;PREV3221209;LD10
sbi instr: resp no: pm outlet:
s&e code mac__qty amount_fps tic pois rac
B SLT CPE Al 1 48.25 TT 23027 2D00A65 Cl
CF Al 1 5.00 TT 23218 2E01CO2 Gl
TCL CPE Al 1 2.55 TT 23840 3U01D65 Gl
COMMENTS AVAILABLE
FOR SPECIAL SERVICE INQUIRIES TRANSFER THE CUSTOMER TO 430-7511.
ABCD CID: 000208065
tn: 266 9642 screen: BSC month: 1 start: past:
10:09:11
SNA 02 BCTIMSC NUM LPT1 A
Mr. Epstein gave evidence that Mr. Mackie, in his
presence, informed the Canadian Human Rights Tri
bunal that "PR Tony McAlear" [sic] on the B.C. Tel
records indicates that this person is a partner in the
Canadian Liberty Net.
No other evidence was made by the applicant. No
evidence was called for by the respondents.
The Issues:
1) Can the respondents Canadian Liberty Net and
Tony McAleer be found guilty of contempt in that a
telephone message in Canada directs a caller to call a
telephone number in Bellingham, Washington to hear
a message which had been prohibited from being
given in Canada as a result of an injunction order
dated March 27, 1992?
2) Has it been shown, beyond a reasonable doubt,
that the injunction order issued on March 27, 1992
has been breached by the respondents Canadian Lib
erty Net and by Tony McAleer?
After hearing the evidence, I am satisfied that the
following facts have been established.
A) An injunction order of this Court was issued by
Mr. Justice Muldoon on March 27, 1992 as regards
Canadian Liberty Net and Derek J. Peterson as
named respondents and "including Cori Keating
and Tony McAleer" to prevent them from transmit
ting messages "which are found to be capable of
exposing persons to hatred or contempt by reason
of the fact that those persons are identifiable on the
basis of race, national or ethnic origin, colour or
religion".
The injunction order specifically enjoined the
respondents, including Keating and McAleer, from
transmitting specific messages. Those prohibited
messages are too numerous to include in this deci
sion but may be read in the injunction order of
March 27, 1992.
B) Following the issuance of the injunction order,
a call to a Vancouver telephone number 604-266-
9642 would result in a telephone message given by
the Canadian Liberty Net. The message states that
because of a Federal Court injunction a new U.S.
telephone line has been ordered.
C) That on June 5, 1992, a telephone call to 604-
266-9642 resulted in a message that the caller has
reached the Canadian Liberty Net liaison line, that
a new number for the Canadian Liberty Net "in
exile" exists and it is "area code 206-734-1306",
that the reason for the new number is "we can now
say exactly what we want without officious criti
cism and sanction".
I take this statement to mean, to avoid the terms of
the injunction order of Mr. Justice Muldoon, the
respondent, Canadian Liberty Net directs the caller
to a telephone number in Bellingham, Washington,
U.S.A. It is not denied that the telephone number
206-734-1306 is in Bellingham, Washington in the
U.S.A.
D) I am satisfied that Exhibit B to the affidavit of
Mr. Epstein of June 12, 1992 indicates that the
telephone number 266-9642, as of May 20, 1992
(or June 5, 1992 affidavit of Mercier) was regis
tered in the name of Derek Peterson and Canadian
Liberty Net. Tony McAleer is a "partner" accord
ing to the evidence of Mr. Epstein.
I would comment on the evidence of Mr. Epstein
as it relates to Mr. McAleer being a partner in the
Canadian Liberty Net telephone number 266-9642.
This evidence was not solicited by counsel for the
applicant. Exhibit B was not before me at the show
cause hearing. It was counsel for McAleer in
cross-examination that brought out this evidence. It
was he who decided to question Mr. Epstein about
an affidavit that was filed only for the purpose of
issuing a show cause order. This being the case, I
am satisfied from Exhibit B and the viva voce evi
dence by Mr. Epstein in answering counsel for
McAleer questions, that McAleer is a partner in
Canadian Liberty Net telephone number 266-9642.
E) Most of the messages heard by Lilian Mercier
on June 15, 1992 after calling telephone number
206-734-1306 are messages which Mr. Justice
Muldoon specifically prohibited. Examples of this,
and I do not intend to repeat the messages, as they
do not warrant repeating, can be found in Exhibit
A-3, Mr. Justice Muldoon's injunction order at
page 4, line 32 and following, and then by looking
at Exhibit A-1 page 9 under the words "[Pressed
3J" it is abundantly clear that the message is the
prohibited message. Also see Exhibit A-3 page 5
and compare Exhibit A-1 page 15 under the words
"[Pressed 5]" the same message is communicated.
I do not believe it necessary to give further exam
ples. It is clear that the messages given from the
Bellingham, Washington telephone number are a
repetition of a number of prohibited messages.
In fact, counsel for McAleer and Canadian Liberty
Net does not deny that the prohibited messages as
found in the injunction order are being transmitted
by Canadian Liberty Net from Bellingham, Wash-
ington.
F) The injunction order of Mr. Justice Muldoon
was not served on the respondent Canadian Liberty
Net itself before the show cause order was
requested on June 15, 1992 nor was it served per
sonally on the respondent Peterson, nor on Tony
McAleer or Keating before June 15, 1992.
THE COURT: Before you go into your argument, do you
have any evidence that the Injunction was
ever served on Mr. McAleer or anyone
else?
MR. FINLAY: No, I don't, sir.
G) The show cause order was not served on Peter-
son or Keating as they could not be found. In that
they were not served, they are not part of these
proceedings.
The Law of Contempt
In the case of Cartier, Inc. v. Cartier Men's Shops
Ltd. (1988), 21 C.P.R. (3d) 219 (F.C.T.D.), at pages
223-225 (the appeal of this decision was dismissed
[(1990), 32 C.P.R. (3d) 383 (F.C.A.)]), I stated the
following as to the law of contempt:
Mr. Justice Heald, in the case of Maison des Semicon-
ducteurs Ltée v. Apple Computer Inc. unreported, F.C.A.
A-111-87 at p. 5, March 17, 1988 [reported 20 C.P.R. (3d)
221, at p. 224]* quoted Lord Denning in speaking of the
proper approach to be taken in contempt proceedings.
Lord Denning M.R. articulated the proper approach suc
cinctly in the case of Re Brambevale Ltd., [1970] Ch. 128 at
137:
"A contempt of court is an offence of a criminal charac
ter. A man may be sent to prison for it. It must be satis
factorily proved. To use the time honoured phrase, it must
be proved beyond reasonable doubt .... Where there are
two equally consistent possibilities open to the court, it is
not right to hold that the offence is proved beyond reason
able doubt."
(Italics are mine.)
At p. 6 [p. 5 C.P.R.], Mr. Justice Heald goes on to state, in
speaking of the test to be applied in contempt proceedings:
"The test is the one required for offences of a criminal nature,
namely, proof beyond a reasonable doubt." (Emphasis is
mine.)
* Editor's Note:
Also reported at [1988] 3 F.C. 277 sub nom. Apple Com
puter, Inc. v. MacKintosh Computers Ltd.
The issue of contempt and the elements required to find con
tempt were reviewed in the case of Valmet Oy v. Beloit Canada
Ltd unreported, F.C.A., A-602-86, February 1, 1988 [reported
20 C.P.R. (3d) 1, 82 N.R. 235]) both by Mr. Justice Pratte and
Mr. Justice Marceau.
Mr. Justice Pratte, in speaking of Rule 355(1) which reads
as follows:
Rule 355 (1) Anyone is guilty of contempt of court who
disobeys any process or order of the Court or a judge
thereof, or who acts in such a way as to interfere with the
orderly administration of justice, or to impair the authority
or dignity of the Court. In particular, any officer of justice
who fails to do his duty, and any sheriff or bailiff who does
not execute a writ forthwith or does not make a return
thereof or, in executing it, infringes any rule the violation
whereof renders him liable to a penalty, is guilty of con
tempt of court.
states at p. 14 and 15 [pp. 10-11 C.P.R.]:
Before discussing that judgment, it is necessary to have in
mind certain elementary principles:
(1) As Rule 355(1) of the Federal Court Rules makes it
clear, a person may be guilty of contempt of court either
by disobeying an order of the court or by obstructing or
interfering with the course of justice.
The only person who may disobey an order of a court is
the party to whom that order is addressed. However, a
third party who knowingly aided and abetted a party to
disobey an injunction may be found guilty of contempt,
not because he breached the injunction, but, rather,
because he acted in a manner that interfered with the
course of justice.
(2) A person cannot be found guilty of contempt of court if
the contemptuous behaviour is not proved beyond a rea
sonable doubt. In such matter, the standard of proof is
similar to that applicable in criminal matters.
(3) A court injunction must be complied with strictly in
accordance to its terms. However, the defendant against
whom an injunction is pronounced is enjoined from
committing the prohibited acts whatever be the method
he may use in committing them. It follows that a defen
dant will be in breach of the injunction pronounced
against him not only if he himself contravenes the order
of the court but also if the order is breached by his agent,
workman, servant or another person acting for him.
(Emphasis is mine.)
Mr. Justice Marceau, at p. 3 of his judgment, states [pp. 17-8
C.P.R.]:
1. Considering what has to be proved, it is well established
that the activity said to have constituted the contempt must
be one clearly covered by the prohibition, which implies that
it be expressly or by necessary inference mentioned in the
order. Because of this prerequisite, I do not think that the
trial judge was entitled to find, as he did, that the commis
sion of a certain action, although not covered by the injunc
tion, was nevertheless contemptuous as being contrary to the
"spirit" thereof....
2. Coming now to the quality of the proof, it is also well
established that it must be of the high standard necessary for
a criminal conviction, not the lower standard sufficient to
dispose of a disputed question of fact in a civil litigation.
The proof must satisfy beyond any reasonable doubt, not
merely on a balance of probability. (Emphasis added.)
Considering the above and the very strict require
ments necessary to be met before one can be found in
contempt of court, are the respondents Canadian Lib
erty Net and McAleer in contempt of court of the
injunction issued by the Court on March 27, 1992?
Evidence and Discussion
As I have stated, the evidence is clear that Cana-
dian Liberty Net has continued to make use of the
telephone number it had before the issuance of the
injunction. This, in itself, is permitted as the order
does not prevent the continued use of the telephone
number. The order prohibits Canadian Liberty Net,
Peterson, Keating and McAleer by themselves, their
servants, agents, volunteers, co-operants or otherwise
anyone having knowledge of the injunction from
communicating or causing to be communicated by
telephonic means those messages or that menu of
messages or any part thereof identified in the reasons
for order issued by Mr. Justice Muldoon on March 3,
1992.
I am completely satisfied that both McAleer and
Canadian Liberty Net knew of the injunction order
and what it contained. Counsel for Canadian Liberty
Net at the hearing before Mr. Justice Muldoon was
Mr. Douglas Christie and he received a copy of the
injunction order. I can and do conclude from this that
his client was made aware of the injunction order.
Furthermore, on Exhibit A-1, filed with the affidavit
of Ms. Mercier, it states that "the new number for
Canadian Liberty Net in exile is area code 206-734-
1306". I am satisfied that the reason it is operating
"in exile", in the U.S.A., is because of its knowledge
of the injunction order. This becomes most obvious
when one looks at Exhibit A-4 where the message is:
This is April 20, 1992, and you have reached the Canadian
Liberty Net broadcasting from the Soviet Socialist Peoples
Republic of Canada. The Federal Court injunction is still in
effect and so we can only provide a limited and sanitized
update. The new U.S. phone line has been ordered, but there is
a wait for installation. We should be up and running by May 4.
(Underlining is mine.)
I am also satisfied that Tony McAleer had knowl
edge of the injunction for the same reasons as Cana-
dian Liberty Net. The message on the telephone tape
on April 20, 1992 states that the Canadian Liberty
Net has been reached and that because of the injunc
tion order, a new telephone number in the U.S. has
been ordered.
As I have stated, Exhibit B to Epstein's June 12,
1992 affidavit clearly indicates, with the viva voce
evidence of Mr. Epstein, that McAleer was a partner
in Canadian Liberty Net. The message refers to the
injunction order of the Federal Court.
The evidence satisfies me beyond a reasonable
doubt that the contents of the injunction order were
known to Canadian Liberty Net and McAleer on June
5, 1992. As I have stated, Mr. Justice Pratte, in the
Valmet Oy v. Beloit Canada Ltd. [(1988), 20 C.P.R.
(3d) 1 (F.C.A.)] case (supra) states that a defendant
will be in breach of the injunction pronounced
against him not only if he contravenes the order of
the Court but also if the order is breached by his
agent, workman, servant "or another person acting
for him". [Underlining added.]
Tony McAleer was not a named respondent in the
proceedings brought before Mr. Justice Muldoon.
Nevertheless, Tony McAleer was specifically named
in the injunction order and prohibited from causing to
be communicated the messages mentioned in Mr.
Justice Muldoon's order of March 27, 1992.
As I have stated, the messages carried from the
U.S. Bellingham, Washington telephone number are
in breach of the March 27, 1992 injunction order in
that the messages are, in most part, the same prohib
ited messages as found in the injunction order.
It is important to understand what it is that Cana-
dian Liberty Net and McAleer have done. This may
still be continuing but I have no evidence of this.
A call is made to the Vancouver, B.C. telephone
number of Canadian Liberty Net of which McAleer is
a partner. The caller is informed that he reached the
Canadian Liberty Net and is referred to the Belling-
ham telephone number in the U.S. where the caller is
told he or she has reached the Canadian Liberty Net
in exile and is then told to press a particular number
on his telephone to receive a message which mes
sage, I am satisfied, is prohibited from being trans
mitted by the injunction order of Mr. Justice Mul-
doon.
I do not have any evidence that the transmission of
the messages on the U.S. telephone of Canadian Lib
erty Net is illegal in the United States. I believe that
whether or not the transmission of the messages is
legal or not, it matters not for the purpose of the pre
sent hearing.
As I have stated, Mr. Justice Muldoon specifically
prohibited Canadian Liberty Net and McAleer from
causing to be communicated the prohibited and I say
reprehensible messages. I am satisfied that by
informing persons to call the Bellingham telephone
number, both Canadian Liberty Net and McAleer are
causing to be communicated the prohibited and rep
rehensible messages.
It is clear from the evidence (Exhibit A-3) that this
method of causing the prohibited messages to be
communicated to Canadians was carefully thought
out. What Canadian Liberty Net and McAleer are
now attempting to say in their defence is that the
Court has no jurisdiction over them as the prohibited
messages are being transmitted from the U.S.A. They
do not deny the messages are the same as the prohib
ited messages found in the injunction order.
The evidence is overwhelming, and beyond any
reasonable doubt that Canadian Liberty Net and
McAleer purposely and methodically arranged to
have the prohibited messages transmitted by tele
phone to Canadians by specifically and purposely
directing anyone who called the Canadian telephone
number to call the American telephone number to
hear the prohibited messages.
Clearly the respondents Canadian Liberty Net and
McAleer acted in such a way as to interfere with the
orderly administration of justice and are thus in con
tempt of court.
Conclusion
As I have stated, the messages transmitted by the
Canadian Liberty Net from its Bellingham, Washing-
ton telephone number are most reprehensible and an
insult to the peoples against whom they are directed.
Notwithstanding the fact that Mr. Justice Muldoon
found that the messages are capable of exposing per
sons to hatred or contempt by reason of the fact that
those persons are identifiable on the basis of race,
national or ethnic origin, colour or religion, Canadian
Liberty Net and McAleer persist in causing to be
communicated these hateful and reprehensible,
messages.
I believe that the breach of the March 27, 1992
injunction order warrants a most serious penalty in
order to ensure that this type of behaviour does not
continue.
For this reason, the parties are to appear before me
or any other judge of the Federal Court of Canada at
the time and place stated in my order.
Costs in favour of the applicant.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.