Toronto, Ontario

‑‑- Upon resuming on Tuesday, November 10, 1998

    at 9:44 a.m.

         THE CHAIRPERSON:  In the matter of Mr. Fromm's application for subpoenas and to call certain witnesses, do counsel have some comments to make?  Mr. Freiman...?

         MR. FREIMAN:  I think it would be appropriate to hear from Mr. Christie first since he appears to be o similar interest.

         THE CHAIRPERSON:  I am sorry.  Yes, that is appropriate.

         MR. CHRISTIE:  The position I heard explained by Mr. Fromm yesterday made some sense in that the Tribunal has asserted the principle that context is important; yet, so far there has been very little, if any, context led by the Commission or the various Intervenants.  It would seem to have pointed in the direction of an obvious vacuum that some of this evidence would be capable of filling.  There is, of course, other evidence that would be capable as well.

         If the context comes from those who are in positions to be most affected, it would seem logical that that is a context we should be able to hear from.

         I would like to raise issues with that in mind.  I would like to be able to ask questions pertinent to the issue of context of the people whom Mr. Fromm mentioned.

         That is my position.

         MR. FREIMAN:  I have a number of submissions of a general nature in opposition to the request for summonses.  I expect that the Intervenors and Complainants who are directly associated with the individuals intended to be called will have more specific comments about the specific individuals.

         My submissions really are four-fold, each in support of the proposition that the summonses ought to be rejected.  It will be my submission that the request for a summons with regard to these witnesses is inconsistent with the statutory test for issuing a summons; that is point number one.  Point two, it is inconsistent with the terms of intervention under which Mr. Fromm's organization was granted standing.  Third, insofar as what is intended to be called is expert evidence ‑‑ and I think Mr. Fromm made it clear that that is what it was with regard to at least one of the proposed witnesses ‑‑ my submission will be that, in fact, it is likely that what he is looking for is expert evidence from all four.  Insofar as it seeks to compel expert evidence, the request is inconsistent with the law regarding expert evidence and the compellability or not of an expert and the circumstances under which an expert is compellable.

         Finally, in my submission, most telling, at least in terms of stepping back for a moment and looking at what is being asked, what is being asked is paradoxically and, in my submission, shockingly inconsistent with the ostensible mandate of the very group that Mr. Fromm represents here.  What I mean is that we have an organization said to be devoted to the concept of freedom of expression that is asking for forced speech and is seeking to compel those who don't want to speak to speak.

         Let me take my submissions one by one, and I will deal in general with context and then the applicability to each one of the proposed witnesses.

         First, the Act itself.  Subsection 50(3) of the Act ‑‑ and, I am sorry, I did not bring extra copies, but it is not very controversial.  Subsection 50(3) gives the Tribunal the discretion to issue a summons.  In fact, I misspoke myself; I do have copies.

         THE CHAIRPERSON:  I do not believe we have seen the counsel sitting next to Mr. Kurz before yesterday.  Could I have your name?

         MR. RICHLER:  Actually, you have seen me once before.  My name is Richler, and I am here for the Canadian Jewish Congress.

         THE CHAIRPERSON:  Thank you.

         MR. FREIMAN:  Subsection 50(3) provides:

"In relation to the hearing of the inquiry, the member or panel may

(a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the complaint;"

         I ask the Tribunal to pay special attention to two words.  The first is "may" which indicates that this is a discretionary power, and the second is that it is with reference to evidence that the panel considers ‑‑ once again, it is a discretionary issue ‑‑ necessary for a full hearing.  The test of necessity is an important test.  It is not a low test.  It is not that it may be that in the course of giving evidence something may come out.  It is that the evidence of this person is necessary and, without it, the Tribunal cannot have a full hearing and consideration of the complaint.  That is the first point.

         The first test will be:  Is the evidence necessary and should the Tribunal exercise its discretion?

         THE CHAIRPERSON:  There is a certain onus under this section to find justification for the issuing of a subpoena.

         MR. FREIMAN:  Yes.  Unless you can determine that the evidence is necessary, then you ought not to issue it.  In my submission, the use of the word "may" on top of that gives the Tribunal a residual discretion in any event to consider all the circumstances.  Even if evidence could be said to be necessary from one point of view, if there were other ways of providing the same information, then the Tribunal still has the discretion, if it is inconvenient or for any other reason inadvisable, not to issue the subpoena.

         The second point is terms of intervention.  On December 15, 1997 Mr. Fromm, on behalf of the Canadian Association for Freedom of Expression Inc., sought and was granted interested party status.  In granting that motion ‑‑ and this is at page 1112 of the transcript of the proceeding, and I will distribute that. 

         I will start at page 11 where the Chair states:

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

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

At line 11:

   "We would, however, place the same restrictions on this intervention as we have with respect to the other interested parties ‑‑ that is, restraint must be exercised to ensure that interventions are only made where they relate to the issue which is directly or substantially related to the party's specific public interest.  The focus of Mr. Fromm's organization is on the issue of free expression.

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

         So there are two additional restrictions placed on evidence to be called by Mr. Fromm on behalf of the Canadian Association for Freedom Expression Inc., namely that the evidence must relate to the specific area of expertise, namely freedom of expression and, secondly, that it not be overly repetitious.

         Third is the law with regard to expert evidence and how the law with regard to experts interacts with the general subpoena power.  Mr. Fromm tries to gloss it over, but the reality is that what we have here is a request to compel someone to come and give evidence.  That means ‑‑ and we can certainly infer from the request for the subpoena ‑‑ that the person in question has not indicated a willingness to come.  In my respectful submission, we can infer even further that the potential witness has been asked and has declined to come.  The force of a summon is to say:  Nevertheless, you shall come and you shall give evidence.

         How does that work with expert evidence?  In my submission there are two sorts of expert evidence that one might encounter in the course of a hearing.  The first is evidence from a witness who is factually connected to the matters in issue and who, in the course of giving evidence, also expresses an opinion that lies within a special area of expertise. 

         In my submission, such a fact expert who also concurrently or incidentally gives expert evidence is compellable.  He is compellable because he has evidence with regard to the facts, and the circumstance that part of that evidence may be in the form of opinion does not change the nature of his participation as a fact witness.

         However, there is another kind of expert evidence, and that is the evidence that we were hearing yesterday from Mr. Klatt.  That is evidence of a person who is knowledgeable in a particular field who is not factually connected to the case, but gives an opinion on a matter in issue in the case. 

         It is the second kind of evidence that we are dealing with today and, in my respectful submission, that evidence is not compellable.  There are established procedures for bringing the second sort of expert evidence, opinion evidence of a non-fact witness.  They include retaining that witness, arranging for his attendance and preparing, in the case of this Tribunal a given number of days in advance, a summary of the evidence to be given by that person.  That is the way you bring that sort of evidence. 

         You cannot, in my respectful submission, compel that sort of evidence.  It is not the case that I can pick an expert out of a hat and say, "Hey, this guy really knows something about the issue that I would like to deal with at the Tribunal," serve him a subpoena, and the result of that subpoena will be that whether he wishes to or not he is obliged to come and give evidence.

         I may be involved in the courts in a medical malpractice case, and I would think that the winner of last year's Nobel Prize in medicine would be an excellent witness in support of propositions that I wish to make.  I cannot simply come to the court or to a tribunal and say, "Would you please issue a subpoena for the winner of the Nobel Prize to come and testify, because he really knows what he is talking about." 

         In support of these propositions ‑‑ they are so elementary that it is somewhat difficult to find them, but I did find them in a work on expert evidence called Hodgkinson on Expert Evidence. 

         If you open up the little handout at point No. 2 on Compellability, at page 104, the text reads:

   "In Seyfang v. Searle Cooke J. considered the circumstances in which an expert would be compelled to give evidence.  To the extent that he is a witness to a fact in issue in the case, he is usually compellable, and in this respect is little different from any other witness.  The same does not however apply to evidence of opinion, unless he has some particular and important factual link with the case:

   'The English courts will not as a general rule require an expert to give expert evidence against his wishes in a case where has had no connection with the facts or the history of the matter in issue.'"

         That, in my respectful submission is enough to dispose of the expert issue.  But even stronger is taking a step back and looking at the mandate that I understood Mr. Fromm and his organization are here to support, which is that freedom of expression should take precedence over many other societal values and that it is so important that it ought not to be interfered with, even by so important a social purpose as preventing the spreading of hatred and contempt.

         As I understand it, freedom of speech includes not only the freedom to speak but the freedom not to speak.  If freedom of speech indeed includes the freedom not to speak, in my submission, it is a sorry spectacle to see the so-called advocates for freedom of speech ‑‑ a gentleman who has no desire or a lady who has no desire to come and give evidence ‑‑ nevertheless being compelled to speak when they have said that they are not interested in speaking, even though they have no connection whatsoever with the case.

         THE CHAIRPERSON:  What do you say about the issue of relevance?  Mr. Fromm is talking about calling these witnesses who, on the face of what Mr. Fromm has said to us, he wants to bolster your case?

         MR. FREIMAN:  Apparently.

         THE CHAIRPERSON:  What is the relevance on the basis that he puts it to us?

         MR. FREIMAN:  Let's get to it.  I have just outlined the principles that I want to apply, and let's look at the issue of necessity, which really encompasses relevance.

         Mr. Fromm says that the first witness that he wants to call is Mr. Jones who has a connection with an organization that apparently is interested in issues of free speech and the Internet.  We have not had the benefit of hearing what Mr. Jones would or would not say, and I take it that that is because he is not speaking to Mr. Fromm and not telling him what he would or would not say, so we have to hypothesize.    Right at the starting gate that trips up Mr. Fromm and his horse.  How can you establish relevancy if you don't know what the person is going to say?  You can ask questions ‑‑

         THE CHAIRPERSON:  He does say with respect to the three witnesses he proposed to call originally that there is relevance in respect of the social context.

         MR. FREIMAN:  I was going to look at the witnesses seriatim, but I am glad to ‑‑

         THE CHAIRPERSON:  That is fine.  You are addressing those matters.

         MR. FREIMAN:  I will address each of those matters.  Let's go quickly.

         David Jones ‑‑ as I said, it is very difficult to get anywhere on this one because we don't know what he is going to say.  We don't know what the connections are with any matter in issue in this proceeding. 

         Mr. Fromm is here to defend the interest of free speech and can say what he wants on that topic, but it is not immediately clear what the issues of freedom of speech are that apply to the task of this Tribunal, which is to determine whether there has been a communication, whether it is telephonic, whether it has been caused by the Respondent, and whether it is likely to expose people to hatred and contempt on the basis of an identifiable ground.  There may be a freedom of speech issue lurking there somewhere, but it is not immediately evident on the face of the particular section, especially in circumstances where the Supreme Court of Canada has held that this section is constitutional.

         So we have a problem at the outset in establishing what the potential connection is.  We have a more serious problem given that we don't know what the evidence is going to be, so we don't know what the nexus could be.

         Finally, I guess it is opinion evidence; presumably, it will be opinion evidence.  That is what Mr. Fromm told us, and we will deal with the problem of that in a second.  In any event, it is not necessary.  It is not necessary in light of the evidence we already have about Mr. Fromm and his organization and his intentions.  Mr. Fromm's organization, we are told, has a plethora of members all devoted to this cause, so there is no reason to believe that he could not call someone from his own organization to give this evidence.  We don't need to go outside the organization.

         He has already told us that he is going to call a Mr. Collins from British Columbia, without need of summons, to give evidence on this very issue.  In fact, if you look at the blue ribbon, I expect Mr. Klatt can give him the same sort of evidence as well.  The blue ribbon, as I understand it, indicates a devotion to the cause of freedom of speech on the Internet.  My further understanding ‑‑ and perhaps it will come out in examination-in-chief; it did not come out in the qualification of the witness and, if it does not, it will certainly come out in cross-examination ‑‑ is that Mr. Klatt is indeed a member of a number of organizations and associations devoted to this very cause, so we can get the evidence from Mr. Klatt as well. 

         There is no need to go outside of that and, if you do go outside of it, you begin to get tripped on the restrictions this Panel put on participation, namely that the evidence should not be repetitive, that it should not unduly prolong.

         What we are being asked to do is to issue a summons for an expert to add to the testimony that we already know is coming from Mr. Collins, that could be available from Mr. Klatt, and that could be called by Mr. Fromm on the basis of his own membership.

         With regard to Mr. Jones, there is also the problem that it is opinion evidence.  I submit that the passage I read to you applies directly here.  You cannot simply pick a name out of a hat and say, "This guy knows something about the topic that interests me.  Let's bring him in and have him testify."  In addition to being prohibited on the law, as a practical matter, it is unfair to the expert, unfair to compel someone who does not want to provide opinion evidence and to force him to do that, to leave his other important tasks and devote time to preparing an expert opinion and delivering it.  It is a way of circumventing the rule of the Tribunal since an involuntary expert certainly could not be forced to provide a summary of his expert testimony and we, therefore, run afoul of that rule.  In general, it is inconsistent with ideas of fairness and practicality.  You could not do it court, and you cannot do it here.

         That is Mr. Jones.

         Next we have three other witnesses:  Ms Citron, Mayor Lastman and Mr. Kayfetz.  They are said to be useful to the Tribunal on the issue of social context.

         First, let me note with regard to the restrictions on Mr. Fromm and his organization that social context is not freedom of expression.  He was not granted intervenor status to pontificate about social context, and he ought not to have the mandate for his intervention extended to areas outside of freedom of expression.  Social context by no stretch of the imagination can be said to be part of Mr. Fromm's mandate, but let's go beyond it.

         What is the nature of the evidence that is being sought?  There are only two things that one might divine from that.

         If we take seriously the concept that this is only about social context, then what we are being asked for again is expert evidence.  It is someone's opinion as to the state of social relations or the context in which speech is being spoken.  That is the only connection.  All the restrictions on expert evidence apply, plus there is really nothing to suggest that these three particular individuals have any special expertise on social context.  They are not sociologists; they are not noted writers on social context.  They are people who have their lives and have their experiences, but they are not experts by any means on social context.

         If, in fact, what Mr. Fromm means ‑‑ and in listening to his submissions yesterday I got the impression that what he really meant was that he wanted these people to give evidence ‑‑ at least Ms Citron and Mr. Kayfetz ‑‑ about specific effects on specific individuals.  If it is effects on other people, I don't know how they can give that evidence or what they can say about how things affect other people.  If it is effects on themselves, in my submission, it is entirely irrelevant. 

         Subsection 13(1) deals with communication that is likely to expose individuals to hatred and contempt.  That is not synonymous with evidence and has no contiguity with evidence of effect on the individual.  The test is not whether somebody's feelings were hurt; the test is:  Is the speech in question likely to expose someone to hatred and contempt?  There is no nexus between those two questions.

         In my submission, it is hard to get beyond the first hurdle again:  What assistance can these individuals provide to the Tribunal on a matter in issue?  What assistance can the line of questioning that Mr. Fromm proposes to subject them to be in order to advance the mission of this Tribunal?

         It was significant in the context of the very brief submissions of Mr. Christie this morning that his main reason for supporting, or one of the reasons that he wishes to support, the application is that he would like to cross-examine these people.  I am sure he would, but that is not part of the test for making a witness compellable.  The fact that somebody would like to cross-examine ‑‑

         THE CHAIRPERSON:  Generally, when you are in the same interest to the party, it deprives you of the right of cross-examination.

         MR. FREIMAN:  One would have thought so.  I can imagine ways in which inventive counsel might try to bootstrap themselves into a right of cross-examination, whether the party that calls is similar in interest.  I would obviously object to that in the unlikely event that these people are called.

         I simply note that those submissions by Mr. Christie, brief as they are, should give the Panel additional pause as to exactly what it is that is going on here.

         That, in my submission, deals with Ms Citron and Mr. Kayfetz. 

         With regard to Mayor Lastman, one wonders what on earth is being sought here.  We have already had, for better or for worse, the evidence of the Mayor as she then was at the time of the Complaint.  The Tribunal expressed some skepticism, in fact, as to the significance or the relevance of her testimony and, as I recall, it went in mainly because nobody objected to it.

         Whatever relevance ‑‑ and you have the evidence for what it is ‑‑ there was in Mayor Hall's evidence, what possible relevance can there be in Mayor Lastman's evidence?  He was not the Mayor at the time of the Complaint.  He is the Mayor now.  As Mayor, he is not an expert on social context.  As Mayor, he is not an expert on what motivated the prior Council to bring forward this Complaint.  In fact, the only thing that can be said about him is that he is the Mayor of Toronto.  To the extent that his evidence could even possibly, under the wildest stretch of the imagination, be tangentially relevant, it is merely repetitious of what Mayor Hall said.  There is no indication that he would say anything different from what she said.  We have already heard it once; there is no need to hear it again.

         It is not necessary.  Mayor Lastman's evidence is clearly outside of the area of Mr. Fromm's proposed intervention.  Like all the other subpoenas, it smacks of unfairness and of an ulterior motive.  There is nothing that this Tribunal can gain from issuing these subpoenas in terms of its mandate.  There is much that it can lose in terms of unnecessary delay added on to what has already been monumental unnecessary delay.

         These summonses ought not to be issued.

         THE CHAIRPERSON:  Thank you, Mr. Freiman.  Ms Matheson, your client is directly affected here.

         MS MATHESON:  Thank you, Mr. Chairman.  My job has been made easier because in many respects my submissions have been made by Mr. Freiman.  Let me just go through them very quickly.

         I think it would be of assistance to you to have, in addition to the ruling made in respect of Mr. Fromm's organization in particular, the earlier ruling you made which applies to all interested parties.  It is not to deluge you with a lot of paper but just so that you have all your rulings in front of you.

         You may recall that what you did in your decision was to apply some principles to the first interested party and then seriatim state that those applied to each and every interested party.

         In particular, I draw your attention to page 6 when the Tribunal was disposing of the first application, this application being for B'nai Brith.  The Tribunal stated in the second full sentence:

"While what is being granted is loosely described as interested party status, we expect the League and its counsel to be acutely vigilant not to intervene in issues in which the interests of the League are neither direct nor substantial.  Restraint is required as well with respect to any option of calling witnesses ‑‑"

And I just note that that is expressed.

"‑‑ cross-examining and participating in submissions so that these proceedings are ensured of no overlapping, unnecessary extension or prolixity."

         I draw that to your attention so that you see that you expressly addressed the question of calling witnesses.

         I adopt Mr. Freiman's submissions with respect to the scope of that right afforded to Mr. Fromm and observe that the only witness that even remotely might relate to the issue upon which this Tribunal is granted that status is the first of the four witnesses.  I adopt Mr. Freiman's submissions to the effect that, first of all, you ought not compel an independent expert witness before this Tribunal because that is not appropriate and, secondly, you have already been advised that this interested party intends to call a witness, Mr. Collins, on this issue.  In my submission, one witness on one issue is all that you get to call in a tribunal where you have been told to exercise restraint in the calling of witnesses.

         With respect to the other three ‑‑ in particular obviously Mrs. Citron, but I think it goes for all three ‑‑ I just want to dwell for a moment on section 13.1.  This Tribunal has been charged with making a decision under section 13(1), not under some other section.  This is not a case of an individual being denied access to an apartment or being denied an employment opportunity where one of the witnesses who was in the room at the time when the alleged conversation took place is not before you and you feel that, in order to evaluate the facts, you must have that person before you and conclude that, even though they are not volunteering to come forward, as a matter of necessity you need that evidence in order to make your decision.  That is not this case.

         What is this case?  You are being asked to determine whether this matter 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 a prohibited ground. 

         I just ask you to ask yourselves this question.  I have my note here of what Mr. Fromm said yesterday with regard to Mrs. Citron, which I understand he then proceeded to apply to the other two witnesses.  What he said was that he would be interested in her evidence on the effect of the words complained of on herself and the community that she represents.

         First of all, as Mr. Freiman has said, the effect on one individual is not what you are here to determine.  If you were here to determine the effect on one individual, it would not be an individual who was inside the identifiable group.  This section is focusing on the effect on people not inside the identifiable group and how they regard people who are.  How does this affect a population and how the population regards Jewish people?  That is what this section is all about.

         THE CHAIRPERSON:  Outside the group.

         MS MATHESON:  Outside the group.

         We are not going to have a parade of individuals saying, "This is how this affects me personally."  That would not assist this Tribunal.  It is a question of whether this is likely to incite hatred.

         I just say this.  It is not relevant to ask any one individual inside the group that is said to be affected how these words have an impact on them.  In my respectful submission, it cannot be described as necessary to compel that evidence.  I suppose, if someone voluntarily came forward and no one objected, you might hear, but that is not the test here.

         The other thing I note is that, to the extent that what we are looking at is the effect on a community, in this case the Jewish community, if that evidence were relevant ‑‑ and I submit that that would be a big "if" ‑‑ that is not a matter for individual opinion.  That is a matter for expert opinion, and all of the rules which Mr. Freiman has articulated would apply.  I say you don't have to get that far but, if you were to get that far, that is where you would be.  I say that either way you cannot compel this witness to come forward to deal with those issues.

         What you have here is a situation where the request is beyond the scope of the intervention that was granted because it does not have a direct and substantial connection, which was the requirement put forward by this Tribunal.  It is beyond the scope of this interested party's right to intervene.  It is outside of the scope of section 13 as well.  It also offends the rule on expert opinion evidence.

         For all of those reasons, for each independently you can, I submit, not grant the subpoenas.  I just observe that, if you are not convinced that it is necessary, I don't think you get to the stage of worrying about whether or not you should exercise your discretion one way or the other.

         The last point I make ‑‑ and I submit that this is not something you have to get to in your determination because I think each of those other three reasons are enough on their own to dismiss this.  I just observe that Mrs. Citron, our client, is 70 years old and she is not well.  I make that submission because I feel obliged to say that, but I submit that you don't have to get that far in making a determination of whether or not she ought to be compelled to come forward to this Tribunal.  I put that forward as a fourth point.

         I don't have any other submissions unless the Tribunal has some questions for me or for my client in particular.

         THE CHAIRPERSON:  Thank you.  Does any other counsel wish to speak?  Mr. Earle, please.

         MR. EARLE:  Thank you, Mr. Chairman.

         I would start by, again, adopting the submissions of Mr. Freiman and Ms Matheson with respect to their general comments on the applications.  I don't want to take too much of your time, but I want to make some general comments with respect to the Mayor.

         As I understood Mr. Fromm's application, he was suggesting that the relevance or necessity of calling the Mayor seems to stem, first of all, from the fact that he is the Mayor and that by virtue of his office he somehow has something to bring to this Tribunal and, secondly, as I understood, that he is an individual of some prominence in the community who also happens to be Jewish.

         With respect to the issue of his relevance to this proceeding as Mayor, I think that has already been addressed to some extent by Mr. Freiman.  At the time that this Complaint was brought, as you well know, in July 1996, the Mayor at that time was Barbara Hall.  She has already testified before this Tribunal, and I would suggest that to have the present Mayor appear before this Tribunal is unnecessary and unduly repetitious and would be contrary both to the requirements of subsection 50(3) and also to the comments which you made in granting Mr. Fromm intervenor status to begin with at page 1112 of the transcript.

         With respect to the question of necessity of his evidence either as Mayor or as an individual, the point has been made to you that subsection 13(1) talks first of all about exposing persons of a particular group to hatred and contempt.  We are not talking about a complaint here where one individual was involved, and we are not talking about an effect here on persons within the identifiable group.  In fact, it is more relevant to talk about the effect on persons outside that group.  So one might argue that Barbara Hall's testimony is, in fact, the best testimony you are going to get, to the extent that you consider it relevant.  To call the present Mayor, as a Jewish man, would serve no purpose.

         Those are my submissions on the point.  Thank you, Mr. Chairman.

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

         MR. RICHLER:  Thank you, Mr. Chairman.

         Very briefly, the context I heard Mr. Fromm suggest with respect to Mr. Kayfetz being a relevant witness was that he was at one point the Chair of the Canadian Jewish Congress Committee on Community Relations and that he had some position with the Canadian Occupation Army in Germany following the Second World War. 

         I don't understand how the second point could possibly be relevant.  As to the first, I am instructed that he was last Chair of that committee approximately 15 to 20 years ago.

         Speaking more particularly, I only received notice, of course, of this application yesterday and have not had a chance to speak directly with Mr. Kayfetz.  I have had an opportunity to get information from Mr. Kayfetz indirectly.  He is a man in his seventies who has, I am told, several medical conditions which would preclude him from being put in a position of stress.  Accordingly, he is extremely unwilling to testify.  He would, of course, have to deal with a subpoena if a summons were issued.

         However, he does have these medical conditions, particulars of which I do not yet have.  I am told that, if required, I can obtain medical evidence that could be put before the Tribunal which would support the position that Mr. Kayfetz should not at this stage of his life be put in a stressful situation.

         Quite obviously, Mr. Kayfetz does not want his medical condition made part of the public record, and he is very reluctant to have to collect that evidence, but that evidence will be available.

         The position of Mr. Kayfetz is that we support everything that Mr. Freiman, Ms Matheson and the others have said so far this morning in opposition to the request.  All of those submissions apply to Mr. Kayfetz. 

         If the Tribunal is disposed to consider issuing a summons with respect to Mr. Kayfetz, I would ask that we have some time within which we could collect the medical evidence that would satisfy the Tribunal that his concerns are well-placed.

         Those are my submissions.

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

         MR. KURZ:  Mr. Chair, I have four very brief points which assume the arguments that my friends have made before and which I adopt.  The points are as follows.

         One is the necessity of the Tribunal considering the matter, which is more than a rubber stamp ‑‑ and I will speak very briefly about that; the high test of necessity; the fear of misuse of the power of subpoena; and, finally, what I call the subtext.

         Mr. Freiman pointed out to you that section 50(3)(a) talks about the fact that the member or panel must consider it necessary to issue the subpoena.  This is not an administrative function.  It is not as if you go to an office and get a subpoena and fill in the name and serve it.  Mr. Fromm has to convince you and you have to consider it, so that you have to make a decision and the decision will be based on whether you have decided that the matter is necessary.

         In determining necessity, which is obviously a term that has been considered a lot recently, you have to consider whether there are other options available in order to get that information before you.  It is, again, Mr. Fromm's responsibility to prove that to you.  It is not something to simply be assumed in your considerations.

         With regard to the power of subpoena, you have heard from Mr. Freiman his concern about the power of subpoena.  My submission is that it is even more so when you are dealing with an Intervenor rather than a party with a direct interest in the matter or an Intervenor who does not have a direct interest in the matter to wield that kind of subpoena against what are clearly very unwilling witnesses, including elderly witnesses.  It smacks very much more of unfairness than it would even if a party with a direct interest did so.

         Finally, on the subtext of the matter, what I am asking you to consider is that in effect ‑‑ and I am putting it in the colloquial ‑‑ you don't want to turn these proceedings into a circus.  Allowing Mr. Fromm, in effect, to run roughshod on these people and completely ignore their rights runs that risk, that kind of risk that you seek to avoid with runes like the truth being no defence and that a human rights proceeding is not to be a proceeding in which people's rights are trampled on.  In effect, that is what happens if Mr. Fromm gets his way.

         Thank you.

         THE CHAIRPERSON:  Mr. Fromm, do you have reply?

         MR. FROMM:  Mr. Chairman and Members of the Tribunal, I will address myself briefly to the objections raised by Mr. Freiman.

         Section 50(3)(a) that was drawn to your attention says that you may issue a subpoena in order to compel evidence or documents or things that the member or panel considers necessary for a full hearing and consideration of the complaint.

         I would submit to you that the evidence that we would be able to obtain from Ms Citron and from Mayor Lastman is indeed necessary for a full hearing.   I find it instructive that Mr. Freiman himself introduced as a witness the former Mayor, Barbara Hall.  He felt that her evidence as one of the Complainants, speaking on behalf of the Toronto Mayor's Committee on Community and Race Relations, was of some relevance. 

         I think a basic principle of Anglo-Saxon justice is that the accused has the right to face his accusers.  I know that, in a sense, the Canadian Human Rights Commission is the accuser, but there were two Complainants, the Toronto Mayor's Committee on Community and Race Relations and Sabina Citron.  I think the Respondent has a right to face those people.  They signed a complaint indicating that they believed, and presumably had reason to believe, that section 13(1) had been violated. 

         Mr. Freiman saw fit to have Ms Hall testify.  I may be misstating your observations but, as far as I could tell, she said that she really did not know that much about the Zundelsite, that she had seen a little bit of it.  She certainly did not bring either a scientific or a legal perspective.  A scientific perspective would certainly have inquired into all the pages of the Zundelsite, and that was not the case.  A legal perspective would have weighed other matters.  She said that, having seen the little bit that was presented to her, she drew certain conclusions.

         It seems only fair to hear from the other Complainant.  We hear that the other Complainant is elderly and so on.  I suggest not too elderly to make complaints which, under our law, put the Respondent to tremendous expense and, I might say, the taxpayer to tremendous expense as well.

         Once this process is put into motion, people's lives are affected.  I think the Respondent and we as people interested in free speech have a right to probe why it was she thought the communications on the Zundelsite exposed people of Jewish faith to hatred or contempt.  I would submit that she initiated this process.  I think it is only fair that the Respondent and other interested people have an opportunity to probe this.

         THE CHAIRPERSON:  Are you under the impression that you would have a right to cross-examine her necessarily?

         MR. FROMM:  She would be my witness.  Would I not have the right to question her?

         THE CHAIRPERSON:  You can ask her questions, but you would not be able to cross-examine her unless you could establish according to law that she was a hostile witness.

         MR. FROMM:  I am not sure I understand the difference between questioning her and cross-examining her.

         THE CHAIRPERSON:  There is a big difference.  If you cannot cross-examine her, you will have to be satisfied with her answers, and you might just be supporting the Commission's case by asking those questions, which was the focus of your remarks as I understood them.  You are not likely to obtain evidence from her that is going to help you, are you?  She initiated this complaint, so I assume she is sympathetic to the notion that this complaint should succeed.

         MR. FROMM:  Indeed, but you may get a deeper understanding of the reasons that she feels this.

         THE CHAIRPERSON:  I don't think her reasons, subject to what my colleagues say, for laying the complaint are of any interest to us at all.

         MR. FROMM:  In the case of Mayor Lastman ‑‑

         THE CHAIRPERSON:  How many Mayors do we need to call?  We have commented on the relevance of Mayor Hall's evidence, and we will deal with that in due course.  How many Mayors do we want to hear from and to what end?

         MR. FROMM:  It is perhaps his misfortune to have inherited this baby, but he is the head of the Toronto Mayor's Committee on Community and Race Relations and presumably in some sense supports the complaint; otherwise, he perhaps would withdraw it.

         It has been asserted that the only reason I wish to call him is because he is Jewish ‑‑ and I would argue that that is not the case at all ‑‑ and that he has no particular expertise other than being the Mayor of the City of Toronto.  He may, in fact, not be an academic, but I would suggest that he holds something close to a Guinness Book of World Records in terms of longevity in municipal politics.  He must be dong something right.  He must have a pretty good street sense of what makes this city tick.  I think his evidence and his expertise might indeed be able to assist the Tribunal in judging the social context.

         It was suggested by Mr. Freiman that our brief was freedom of expression and that that had nothing to do with social context.  According to the Tribunal's own ruling, freedom of expression could not be advanced, at least in this case, on the basis that what was said was true or plausible or likely true or that the same views were held by other people who were not considered to be promoting hatred.

         However, in the ruling there was the indication that words had to be understood in a particular social context.  It would seem to me that the immensely politically successful current Mayor of the City of Toronto, who obviously has his finger on the pulse of this city, might indeed be able to assist the Tribunal in establishing a social context.

         THE CHAIRPERSON:  Obviously, Mrs. Citron, the Mayor and Mr. Kayfetz are not willing witnesses from your point of view.  You could not phone them up and say, "Come on down and give me a hand here."

         MR. FROMM:  I didn't do that, no.

         THE CHAIRPERSON:  And you wouldn't expect that you could do that; is that right?  They are unwilling witnesses.

         MR. FROMM:  I would not expect the Mayor of Toronto ‑‑

         THE CHAIRPERSON:  What about Mr. David Jones, the first witness?

         MR. FROMM:  My understanding is that Mr. Jones, while strongly in favour of freedom of expression, does not want to be a witness for this particular Complainant.

         THE CHAIRPERSON:  Complete your remarks.

         MR. FROMM:  The section on compellability cited to you from "Expert Evidence: Law and Practice" in Seyfang v. Searle says:

"Cooke J. considered the circumstances in which an expert would be compelled to give evidence.  To the extent that he is a witness to a fact in issue in the case, he is usually compellable."

         It would be submission that, as the Complainant, Sabina Citron is a witness.  She signed a complaint that such and such was the case.  I think the Respondent and others interested in freedom of speech should have an opportunity to probe that.  She, in effect, did what the Goddess of Discord did in Greek and Roman mythology.  People were having a wedding party, and she took exception to not being invited and tossed the golden apple in inscribed "To the fairest", and the brawl was on.  She signed the complaint, and immense expense has been incurred by the public and by the Respondent.

         I might say, as I know you will do when you assess all the facts and dismiss the complaint, the winner will still not be the Respondent because he will not be able to recover costs, as he might in a libel or other civil actions.  He still ends up the loser, and I think it is important to probe the state of mind and the motives and the beliefs of the person who initiated this complaint.

         THE CHAIRPERSON:  That is the essential reason why you want to call the Complainant, the motivation for laying the complaint?

         MR. FROMM:  The person swore out a complaint, presumably with evidence and knowledge that some of the postings on the Zundelsite are likely to promote hatred or contempt against an identifiable group, in this case the Jewish people.  It seems to me that the Respondent and other interested people have the right to confront the Complainant.

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

         MR. CHRISTIE:  In view of Mr. Fromm's difficulty in understanding some of the complexities that you brought to his attention in terms of rights of examination and cross-examination, I would like to say a few things about my friends' submissions.

         First of all, by what right do they say that these are expert witnesses?  Social context is not an expert matter.  We live in society, and each of us ‑‑

         THE CHAIRPERSON:  It can be.

         MR. CHRISTIE:  It could be.  Someone might claim expertise in social context, but one would be hard-pressed to find an expert in society.  It is a very vague and general term.  We have many experts in specific fields, but nobody that I know of qualifies as an expert in society or social context.

         MEMBER DEVINS:  Mr. Christie, if they are not experts, then of what assistance is their evidence?

         MR. CHRISTIE:  Let me finish.

         Social context is something that everyone has a part in and experience.  An aspect of social context can be demonstrated from a variety of perspectives, from factual knowledge, factual information.

         If someone is speaking in the social context of a funeral, which was Mr. Fromm's first example, the people who were at the funeral could say it was a funeral.  You don't need an expert in funerals to say that it was a funeral.  It is a fact that bears upon and demonstrates a social context.  The social context is the state of a funeral.  The fact is that I was there.  We were in a church or a mortuary or in a place where funerals are held, and it was in that spot that this happened.  If it had happened in some other spot, it would be in a different context?  What is the context?   The factual circumstances in which the statement is uttered, and I don't think you need an expert to demonstrate that.

         In my submission, I find it difficult to believe that there is any expert in the social context of society as a whole.  The example of a funeral is a very limited one.

         When we are speaking about this new application of section 13(1) ‑‑ and no one denies that this is to be a new application to what is beyond the scope of what most people think of as Canada ‑‑ then the social context becomes much, much broader.  The social context of the complaint area, which is Toronto, is something that people who live here could say something about and should say something about.

         If context is relevant ‑‑ and I suggest that the Tribunal has said very clearly that it is ‑‑ then it is certainly necessary to have some evidence.  What evidence do you have?

         THE CHAIRPERSON:  What do you mean by a new application?

         MR. CHRISTIE:  Section 13(1) has never been applied to the Internet before, and section 13(1) has never been applied to the circumstance, which I hope has been pretty clearly demonstrated, that at least the Internet site is located outside of Canada.  This is a new legal interpretation which is being sought to extend the jurisdiction of the Human Rights Commission and to extend the jurisdiction of the Act in ways that have never been applied, to a whole medium which has never been used before, a medium which many would contend is a new variety of communication.  You have heard that type of evidence.  You have not heard it all, but let me say this. 

         Who have you heard evidence from to demonstrate social context?  A linguist from Alberta, a clever gentleman; a historian from New York City who speaks about the motifs of historical antisemitism, who doesn't know anything about the context of Toronto or of Canada really; Irene Zundel who really doesn't know much about anything other than how much she doesn't like Mr. Zundel; Barbara Hall who really was asked to find something in the text and spent some time looking and it wasn't very clear when that was over ‑‑ she didn't really say anything about social context that I recall; and then Mr. Cunningham who said he downloaded it from a certain site; and Mr. Angus who makes presentations and speaks about the Internet, and did so here very dramatically.

         Social context has not been testified to by anybody that I recall.  Really, context is something in which real human beings live and in which this complaint arises.  That is what I understand social context to mean.

         It is necessary, and it can only be repetitious if somebody said it before.  My learned friends say this is repetitious.  Well, who has testified about anything to do with the social context in which this complaint is alleged to arise in this city, either in the past when it arose or now?  I recall no witness.

         My learned friends say that it is the mandate of Mr. Fromm to raise the issue of free speech.  We intend to argue that there is a conflict of values involved in this case and that free speech is an aspect which you have to consider in the social context.  Say, for example, that we had an ongoing debate in which tempers are raised and words are uttered that in another context might be seen as productive of a different result.  We have screaming matches and arguments where people get out of hand.  If the social context is:  We have heard these people scream at each other before and we are not impressed; we know they hate each other.  Mrs. Citron hates Mr. Zundel, and Mr. Zundel hates Mrs. Citron, maybe.  Mr. Zundel has had his house fire-bombed.  Mr. Zundel has had a lot of things happen to him where the public ‑‑ not the Jewish community, but the public ‑‑ might say, "This is a man either overwrought or out of control, and we don't take it seriously."  That is the social context. 

         What else is the social context?  Can anyone tell me what social context means other than the facts in which the average citizen in which the complaint arises would understand the utterances that are alleged to breach section 13(1)?  That must be social context.

         My learned friends say that Mr. Fromm should have no right to raise social context and compel people to testify about social context against their will.  Probably the best people to testify about social context would be those who would do so reluctantly and not out of any favouritism, because who would believe anyone who was in favour of Mr. Zundel?  That is what they would argue if he had a witness who said what his views of the social context were and that he actually thought highly of Mr. Zundel.  They would be the first people to jump up and down and say, "How can you believe these people?  They are friends of this man."  Well, that is one way to attack it. 

         Probably a more credible witness would be one who inadvertently and maybe contrary to what they intended revealed an animus which shows not that they or their motives or relevant, but that society generally would perceive that these are two hostile adversaries in a screaming match.

         THE CHAIRPERSON:  To the extent that social context is relevant, a witness in the category of an expert such as a sociologist who has done a study of what you are talking about would be a witness supportive of the theory that you propound.

         MR. CHRISTIE:  I am propounding an analysis that involves an inherent theory that society looks at people who conduct themselves in certain ways differently.  I am not a sociologist.  You say that is a theory, and I agree with you that it is a theory.  It is what I would call a rational theory, and I might argue it from common sense.  I might also call a sociologist, but I would still have to demonstrate the factual basis for that theory.

         THE CHAIRPERSON:  An expert who has made a study of it would establish the factual foundation to support his conclusions on the basis of supporting his opinion.

         MR. CHRISTIE:  With the greatest of respect, sir, I would suggest that experts cannot establish facts.  They can only take assessed facts ‑‑ facts have to be proven independently of the expert on which the expert can base their opinion.  R. v. Abbey made that clear in the Supreme Court of Canada.  You cannot have a psychologist talk to a person who is mentally ill and say, "Because of my observations of them, I come to the conclusion that at the time of the offence they had these specific delusions."  You have to prove the specific delusions, and then the psychiatrist can analyze those and say at that time, "Based on my expertise, that person would be in a state of mind ‑‑" which, of course, he would say.

         THE CHAIRPERSON:  Of course, based on the integrity of the assumptions.

         MR. CHRISTIE:  That is true; the integrity of the assumptions must be proven, and it is factual to prove those assumptions.  It is factual to prove the social context in which circumstances exist when these utterances are made, if they are attributable to the Respondent in this case.

         I know my friends were really effective in their arguments but, when you come down to looking at the difficulties this case presents, the social context is required to consider what is, in my submission, one of the most important issues:  the issue of how far section 13(1) should go to restrict speech, because that is what it does every single time it applies.  There is a balancing that has to take place, and the social context determines how we should measure and how we should assess the social impact that is, after all, what section 13(1) directs itself to, the social impact of words.

         These can best be demonstrated by considering the people who made the complaint in that they can demonstrate not their motives, because I have heard what you say about that, but their participation, if any, in the exchange.  If it is a total stranger making the complaint and there has never been any public debate between these parties before, one then sees a much more credible case, a case that is credible not because it is based upon some better motive but because the public would perceive differently a debate between the leaders of the Liberal Party and Conservative Party than they would see a comment made by someone who was powerful against a total stranger because of their race, religion or ethnic origin. 

         The public might very well perceive that the remarks to which Mrs. Citron takes issue, whatever they may be, are really part of a debate between those two parties or parties involved in a political process.  They might identify themselves by their race, but it is not because of their race that the debate exists in the public perception.  It is a controversy between some Germans and some Jews.

         That is not to be, I would suggest, logically interpreted as demonstrating a context of hostility to all Jews that the public would perceive, or that any reasonable person in the public would acquire. 

         I don't know what level of perception Human Rights Tribunals normally take of society.  Do we take it that the most susceptible person might acquire this phenomenon of hatred or contempt or ridicule?  Do we take what might be a reasonable person?  I would like to suggest that, objectively, it would be best to take the view of what effect this would have on reasonable people hearing this type of conversation or this communication.

         MEMBER DEVINS:  Mr. Christie, is the only way to get this evidence by compelling these witnesses to testify?   I hear your argument with respect to relevance, but I guess I am grappling with whether ‑‑

         MR. CHRISTIE:  I can't answer that.  I don't know whether there are other witnesses.  Certainly, vis-à-vis Mrs. Citron, I can think of no more credible witness to demonstrate the existing state of affairs that is publicly known between Mrs. Citron and Mr. Zundel.

         MEMBER DEVINS:  If it publicly known, does that not imply that there are other witnesses who could testify to that?

         MR. CHRISTIE:  Not anyone with as much knowledge as Mrs. Citron of the actual controversy or conflicts between them. 

         The very fact is that probably Mrs. Citron would know more about it because it is not necessarily known in detail by the public at large, but there is a general perception.  After a long period of time, after repetition in the media of charges and counter-charges between those individuals, it would be arguable that the average person sees this hostility in a context that is not necessarily racial or religious oriented, but personal. 

         If it is a personal conflict that is occurring that the public would perceive in the context in which it is made, then I am not so sure that you should find that it is productive or likely to expose anyone to hatred or contempt because of racial or ethnic origin.

         Moving on, there is no suggestion that David Jones is reluctant.  I don't know ‑‑

         THE CHAIRPERSON:  That is what Mr. Fromm said.

         MR. CHRISTIE:  Mr. Fromm did not say he was reluctant ‑‑ oh, to get involved in this case, yes.  Reluctance in what sense?

         THE CHAIRPERSON:  He doesn't want to be here.

         MR. CHRISTIE:  Well, who does?  I am sure none of us really does.

         The fact of the matter is that reluctance is quite often expressed in terms of "I will come if you subpoena me."  Most people don't want to be seen as volunteering.  I wouldn't want to be seen as volunteering either.

         THE CHAIRPERSON:  I understood Mr. Fromm to have said that he did not want to be a witness in this case.

         MR. CHRISTIE:  Again, I suggest that it would be appropriate to say that he should not be compelled if he were an expert.  Again, my learned friends say that his only possible function is as an expert.  The social context of debate about the Internet and regulation and control of the Internet is a factual matter as to social context.  It may not be a factual matter known to everyone, but it is certainly known to those who are involved in that debate, and he is. 

         I am not here to suggest that he should be called as an expert to express his opinions on what should and should not be the law, but if the state of circumstances in which we live today involves controversy and developments of regulation, then these are factual matters within his particular knowledge.  He is involved as an advocate, I agree, of a particular point of view, but he would know the fact as to where the state of that controversy is.

         Thank you.

         MS MATHESON:  Mr. Chairman, may I just ask this question?  Mr. Christie has elaborated in a completely different way from the party seeking these subpoenas about one point.  If the Tribunal wishes to go down that road, I have one responding point.

         It was not something that Mr. Fromm stated, and I would suggest that it is irrelevant.

         THE CHAIRPERSON:  There were some fresh points in his discussion; I hope it can be brief.

         MS MATHESON:  Extraordinarily brief.

         THE CHAIRPERSON:  Go ahead.

         MS MATHESON:  In my submission, the important statements were those made by Mr. Fromm at the outset and at the conclusion of his reply, which were that the Respondent has a right to confront the Complainant, which is entirely inappropriate.

         Mr. Christie just now made a lengthy submission about there being no more credible a witness than Mrs. Citron with regard to a public understanding of her relationship with Mr. Zundel.  I only note the last thing that Mr. Christie said.  Toward the end of his submissions he said that their relationship was not known in detail by the public at large.

         I simply say this.  Mrs. Citron is precisely the wrong person to have come and testify about what the public, meaning not her, might appreciate or not appreciate about her relationship with Mr. Zundel.  She is exactly the wrong person for that purpose.

         I make another observation.  To the extent that this is relevant, which I doubt, there is another person involved in that, which is Mr. Zundel.  There is no doubt that Mr. Christie, if he wishes to, on instructions from his client, can bring that evidence forward, to which I expect I would strongly object when the time comes.  I just want to make that additional comment.

         MR. FREIMAN:  If I could have just one minute, it will not detain the Tribunal at all.

         I simply wish to point out that we start with social context and within two minutes we get back to motive as to why Ms Citron brought it, or we get back to expert evidence as to what the state of society is all about.

         In addition to that, which I think was patent in Mr. Christie's remarks, I note that we are not dealing here with a complaint about what Mr. Zundel said about Sabina Citron.  We are dealing here with a complaint about what Mr. Zundel said about Jewish people.  It is not a leap of logic, not even a pole vault of logic, to get from one to the other.  It is a ballistic missile into the ionosphere to get from the issue of Mr. Zundel's remarks about the Jewish people to a context which Mr. Christie says is not known to anyone anyway between Mr. Zundel and Ms Citron.

         Either it is known to everyone, in which case it is open and notorious and evidence can be brought from anywhere, or it is not known to anyone except Mr. Zundel and Ms Citron, in which case it cannot be relevant. 

         The same with Mr. Jones' potential evidence.  Either it is known to everyone or it is not known to anyone.  In either case, there is no assistance from the witness.

         THE CHAIRPERSON:  We will take our morning break now.

‑‑- Short Recess at 11:00 a.m.

‑‑- Upon resuming at 11:25 a.m.

         MR. CHRISTIE:  Could I ask a couple of points of clarification.

         First of all, we are a little bit confused about the state of affairs as to our request for directions yesterday.  I know there was a suggestion and I heard the words ‑‑ and I don't have them verbatim ‑‑ from my friend that, as far as the amendments to the remedies of compensation and punishment were concerned, the Commission took the view that they were not retroactive.  I heard those words.  I think what that meant was that the Commission ‑‑ I think my friend meant to say that he was of the view that they would not be applied retroactively.  He was not saying they were not retrospective.  If they retrospective, they could apply, notwithstanding that they were legislated after.

         I leave that for a moment.  To me, it is at least slightly confusing, and maybe it is my ignorance.  The problem I have is:  If the first view is what the Commission intended, could we take it from the exchange that you had at that time that it is your view and your ruling that you will not be applying the amended remedies of compensation and punishment?

         THE CHAIRPERSON:  I think the Tribunal should express that in some language, and I propose to do that on Thursday morning.

         With respect to the argument we just heard on the subpoenas, we will reserve our ruling on that until Thursday morning as well.

         MR. CHRISTIE:  Thank you.  I take it then that we not consider being bound by the timetable for submissions which you had suggested earlier.

         THE CHAIRPERSON:  I think that is the case.  We can ignore that, subject to what we say in our ruling ‑‑ and I cannot anticipate everything that we might say.

         MR. CHRISTIE:  Could I just make one further point.  We have to raise at the first convenient time a motion which we would like to give you a very brief outline of at the moment. 

         As a result of the amendments, particularly section 48.1(2) which sets out qualifications for the new Canadian Human Rights Tribunal, we will be seeking to raise at a time convenient to yourselves a motion based on a reasonable apprehension of institutional bias arising out of the wording of that section which says that the members who have been appointed ‑‑ and that includes, at least I am sure of, yourself, sir, and Ms Devins, and I think it is true, too, of Mr. Jain.  You have been reappointed as of July 18, 1998 under the new Canadian Human Rights Tribunal and, therefore, I take the legislation to mean that you have met the qualifications.

         The qualifications have been changed from what used to be the Human Rights Tribunal Panel, in section 48.1(2), to these words, that you must have experience, expertise, interest in and sensitivity to human rights. 

         Our position is that, in balancing the conflicting values of individual liberty and human rights, the institutional bias created by the qualifications is something we would like to argue.  I don't intend to argue that now, but I would like you to direct me, if you would, to say when you would be willing to hear us on that point.

         THE CHAIRPERSON:  Obviously, I have not consulted with my colleagues, but I would suggest that in that regard we would simply follow the practice direction, reference to which we made yesterday.

         MR. CHRISTIE:  That will be sometime in December then.

         THE CHAIRPERSON:  Yes.

         MR. CHRISTIE:  With time limits that you could tell us about later with regard to submissions, if you would.

         THE CHAIRPERSON:  If you have a motion to bring, in conformity with the practice direction you would prepare the motion and the grounds for the motion, the authorities and so on.  We would like counsel, as in all motions, to assist us with an outline of your argument with the motion.

         MR. CHRISTIE:  Thank you for the direction.

         In respect of the document that Mr. Klatt endeavoured to introduce yesterday, my friend suggested that it was 1 of 9 or 1 or 14, I am not sure which.  We have at least 14 pages of that now and.  In our view, it is surplus but, if my friends want it, we have it.  If Mr. Klatt could take the stand, I could introduce it through him.

         MR. FREIMAN:  Before we do that, I think it was stated yesterday that Mr. Christie would have an answer for us this morning with regard to his plans for further witnesses.  This would be a very opportune time, so that the Commission and others could prepare for further evidence.

         THE CHAIRPERSON:  Let's begin with Mr. Klatt.  How long do you think you will be with him, bearing in mind that we will not be sitting tomorrow?

         MR. CHRISTIE:  I anticipate that probably I will be the remainder of the day in-chief, but it is hard to predict.

         THE CHAIRPERSON:  Mr. Freiman, what do you say?

         MR. FREIMAN:  I expect a half-day in cross-examination.

         THE CHAIRPERSON:  Is there anyone else who would be much more than that day with Mr. Klatt altogether?

         MR. KURZ:  I may be an hour.

         THE CHAIRPERSON:  Will you have another witness available on Thursday?

         MR. CHRISTIE:  At the moment I am not sure which one.

         MR. KURZ:  We were given notice of a Karl Rupert as the next witness, and that is the only notice that we received, Mr. Chair.

         MR. CHRISTIE:  He is present and he would be available.  You will have to forgive me; I am having to accomplish re-entry from the ionosphere and I may be out of touch with my clients.  Mr. Freiman put me there.

         THE CHAIRPERSON:  Let's assume, then, that Mr. Rupert would be called as the next witness, following Mr. Klatt.

         MR. CHRISTIE:  I think that is a reasonable assumption, barring unforeseen changes.

         THE CHAIRPERSON:  With the reasonable assumption about the duration of his evidence, it looks like we will have a day and a little bit left.

         MR. CHRISTIE:  I would not expect that his evidence would take more than half a day.

         MR. FREIMAN:  I think it is highly unlikely that there will be much cross-examination, if any, of Mr. Rupert.

         THE CHAIRPERSON:  These times are extremely valuable, as we have said frequently.  We will deal with Mr. Rupert, and then there will be another witness, I take it, to take us to the end of evidence on Friday?

         MR. CHRISTIE:  I am sure there would be.

         MR. FREIMAN:  Who?

         MR. CHRISTIE:  I can't tell you; I don't know at the moment.

         THE CHAIRPERSON:  Will you know by 2:30?

         MR. CHRISTIE:  I can try.  I will do my best.

         In regard to that, I have to ask one favour.  There is a Supreme Court judge in British Columbia who wants me to be on a pre-trial conference at 12:30, 9:30 their time, and I have arranged to do it by cell phone.  I don't know how long it will take.

         THE CHAIRPERSON:  We will recess for lunch at 12:30 then.

         MR. CHRISTIE:  Thank you. 

         THE CHAIRPERSON:  Ms Matheson, please.

         MS MATHESON:  Mr. Chairman, I just observe that Mr. Christie represented yesterday to the Tribunal that we would learn at 9:30 this morning who his witnesses would be.  I am prepared to wait until 2:30, but I think it is only fair that we hear at 2:30 who they are going to be.

         THE CHAIRPERSON:  I understood that he is going to do that.

         MEMBER OF THE AUDIENCE:  Sir, could I ask a question?

         THE CHAIRPERSON:  What is your question?

         MEMBER OF THE AUDIENCE:  You mentioned that there was something very valuable, and I did not understand what that was.

         THE CHAIRPERSON:  Time, sir.

         MEMBER OF THE AUDIENCE:  Thank you, sir.

         MR. KURZ:  Mr. Chairman, we are going to be at the end of this week in the same position when we come back again in December, wondering who Mr. Christie's witnesses are.  I ask, through you, that we get notice of that information as well so that we are not in the same position on the first day that we come back here in December.  Frankly, it appears that without your assistance we will never get this kind of information.

         THE CHAIRPERSON:  I hope we will know very clearly what the order of things is going to be at the beginning of December.

RESUMED:  BERNARD KLATT

         MS MATHESON:  Mr. Chairman, someone has just indicated that Mr. Rupert is in the room.  Mr. Earle reminds me, of course, that there is an order excluding witnesses and he asked why Mr. Rupert is in the room and how long he has been in the room.

         MR. CHRISTIE:  I can't answer the last question and I can't answer the first question.  I don't control Mr. Rupert.  Mr. Rupert is here apparently. 

         THE CHAIRPERSON:  Is he in the room?

         MR. CHRISTIE:  He is in the room.  He doesn't speak English ‑‑

         THE CHAIRPERSON:  I don't care if he speaks English.  He should be excluded.  Will Mr. Rupert stand up?  Please leave the court room.

         MR. KURZ:  He has been here throughout, Mr. Chair.  I have seen him publicly, if not every day we have been here, almost every day.

         THE CHAIRPERSON:  Please leave the hearing room.

         MR. RUPERT:  When will be my hearing date?

         THE CHAIRPERSON:  You will have to speak to Mr. Christie at the luncheon recess.  Please leave the hearing room.

EXAMINATION-IN-CHIEF

         MR. CHRISTIE:

         Q.   Mr. Klatt, yesterday we were considering the information you had from MCI, and Mr. Freiman was of the view that he wanted to see the rest of the pages.  What was the page number that you were referring to?  Was that page 9?

         A.   Yes, page 9 was the page that we were looking at yesterday.

         Q.   Have you included now all the other pages that are in that particular publication?

         A.   This was from a slide presentation of 14 pages in total.

         Q.   So this is now the total presentation; is that correct?

         A.   That was the complete extent of the document.

         Q.   In regard to your opinion, does it confirm your understanding of the relationship between the Internet and the switched net?

         A.   Yes, it is an accurate portrayal of the point that we were trying to make yesterday, where the Internet is not synonymous with the telephone network and the telephone network is viewed as being a separate network from the Internet.

         MR. CHRISTIE:  Could we ask to have this marked, then.

         THE CHAIRPERSON:  Is there any objection?

         MR. FREIMAN:  No.

         THE REGISTRAR:  Page 9 was marked as R-32.

         THE CHAIRPERSON:  We will mark this with a new number.

         THE REGISTRAR:  The 14-page document will be marked as R-33.

EXHIBIT NO. R-33:  Document entitled:  MCI Panel Session: Does Web Telephony Have The Same Potential As The Web?", dated April 2, 1998

         MR. CHRISTIE:

         Q.   What I would like to do is keep your evidence focused on the opinion of Mr. Angus and resume consideration of Mr. Angus' evidence.

         Roughly where we left off was at page 1120.  You gave evidence about the nature of the web server and the web browser, whether one was active and one was passive, and you gave your evidence on that point.  We dealt with Mr. Angus' view that they were both active.  Is that correct, sir?

         A.   Those are the points that we discussed.  In my experience and opinion, to characterize the web server as an active component of the Internet is incorrect, for the reasons that we previously discussed.

         THE CHAIRPERSON:  Would you raise your voice a little, please.

         MR. CHRISTIE:

         Q.   What can you tell us about the origins of the World Wide Web?

         A.   The concept was developed by a gentleman known an Tim Berners-Lee who worked at the CERN Institute in Switzerland.

         Q.   What was CERN?

         A.   CERN is a research institute in, I believe, Bern, Switzerland.

         Q.   What problems were they trying to solve at that time?

         A.   As a research institute, they were engaged in various types of information exchange, primarily textual documents, where they would need to compare research papers from other researchers working in different facilities.  The Internet was being used, but it was not as convenient as they would like because e-mail and file transfer protocols did not serve a very useful and worthwhile purpose for what they were designed to do.  In their particular type of research work they found it would be advantageous to be able to refer to footnotes or documents containing relevant information, and that facility did not exist in e-mail or file transfer protocols that were available at that time.

         This gentleman came up with the concept of being able to use this hypertext where you can encode a term or a word or a sentence to be used as an activation point to bring up additional material that would be relevant to that particular word or concept in a different document.

         Q.   What is HTTP and HTML?

         A.   Those acronyms refer to hypertext transfer protocol and hypertext markup language, the emphasis being on the textual nature.  It is not an audio transfer protocol; it is not a method for controlling audio information that is presented.

         Q.   How do the terms HTTP and HTML relate to the Zundelsite?

         A.   The Zundelsite does not communicate telephonically because there is no transfer of sound information.  The

                                    Toronto, Ontario

‑‑- Upon resuming on Tuesday, November 10, 1998

    at 9:44 a.m.

         THE CHAIRPERSON:  In the matter of Mr. Fromm's application for subpoenas and to call certain witnesses, do counsel have some comments to make?  Mr. Freiman...?

         MR. FREIMAN:  I think it would be appropriate to hear from Mr. Christie first since he appears to be o similar interest.

         THE CHAIRPERSON:  I am sorry.  Yes, that is appropriate.

         MR. CHRISTIE:  The position I heard explained by Mr. Fromm yesterday made some sense in that the Tribunal has asserted the principle that context is important; yet, so far there has been very little, if any, context led by the Commission or the various Intervenants.  It would seem to have pointed in the direction of an obvious vacuum that some of this evidence would be capable of filling.  There is, of course, other evidence that would be capable as well.

         If the context comes from those who are in positions to be most affected, it would seem logical that that is a context we should be able to hear from.

         I would like to raise issues with that in mind.  I would like to be able to ask questions pertinent to the issue of context of the people whom Mr. Fromm mentioned.

         That is my position.

         MR. FREIMAN:  I have a number of submissions of a general nature in opposition to the request for summonses.  I expect that the Intervenors and Complainants who are directly associated with the individuals intended to be called will have more specific comments about the specific individuals.

         My submissions really are four-fold, each in support of the proposition that the summonses ought to be rejected.  It will be my submission that the request for a summons with regard to these witnesses is inconsistent with the statutory test for issuing a summons; that is point number one.  Point two, it is inconsistent with the terms of intervention under which Mr. Fromm's organization was granted standing.  Third, insofar as what is intended to be called is expert evidence ‑‑ and I think Mr. Fromm made it clear that that is what it was with regard to at least one of the proposed witnesses ‑‑ my submission will be that, in fact, it is likely that what he is looking for is expert evidence from all four.  Insofar as it seeks to compel expert evidence, the request is inconsistent with the law regarding expert evidence and the compellability or not of an expert and the circumstances under which an expert is compellable.

         Finally, in my submission, most telling, at least in terms of stepping back for a moment and looking at what is being asked, what is being asked is paradoxically and, in my submission, shockingly inconsistent with the ostensible mandate of the very group that Mr. Fromm represents here.  What I mean is that we have an organization said to be devoted to the concept of freedom of expression that is asking for forced speech and is seeking to compel those who don't want to speak to speak.

         Let me take my submissions one by one, and I will deal in general with context and then the applicability to each one of the proposed witnesses.

         First, the Act itself.  Subsection 50(3) of the Act ‑‑ and, I am sorry, I did not bring extra copies, but it is not very controversial.  Subsection 50(3) gives the Tribunal the discretion to issue a summons.  In fact, I misspoke myself; I do have copies.

         THE CHAIRPERSON:  I do not believe we have seen the counsel sitting next to Mr. Kurz before yesterday.  Could I have your name?

         MR. RICHLER:  Actually, you have seen me once before.  My name is Richler, and I am here for the Canadian Jewish Congress.

         THE CHAIRPERSON:  Thank you.

         MR. FREIMAN:  Subsection 50(3) provides:

"In relation to the hearing of the inquiry, the member or panel may

(a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things that the member or panel considers necessary for the full hearing and consideration of the complaint;"

         I ask the Tribunal to pay special attention to two words.  The first is "may" which indicates that this is a discretionary power, and the second is that it is with reference to evidence that the panel considers ‑‑ once again, it is a discretionary issue ‑‑ necessary for a full hearing.  The test of necessity is an important test.  It is not a low test.  It is not that it may be that in the course of giving evidence something may come out.  It is that the evidence of this person is necessary and, without it, the Tribunal cannot have a full hearing and consideration of the complaint.  That is the first point.

         The first test will be:  Is the evidence necessary and should the Tribunal exercise its discretion?

         THE CHAIRPERSON:  There is a certain onus under this section to find justification for the issuing of a subpoena.

         MR. FREIMAN:  Yes.  Unless you can determine that the evidence is necessary, then you ought not to issue it.  In my submission, the use of the word "may" on top of that gives the Tribunal a residual discretion in any event to consider all the circumstances.  Even if evidence could be said to be necessary from one point of view, if there were other ways of providing the same information, then the Tribunal still has the discretion, if it is inconvenient or for any other reason inadvisable, not to issue the subpoena.

         The second point is terms of intervention.  On December 15, 1997 Mr. Fromm, on behalf of the Canadian Association for Freedom of Expression Inc., sought and was granted interested party status.  In granting that motion ‑‑ and this is at page 1112 of the transcript of the proceeding, and I will distribute that. 

         I will start at page 11 where the Chair states:

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

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

At line 11:

   "We would, however, place the same restrictions on this intervention as we have with respect to the other interested parties ‑‑ that is, restraint must be exercised to ensure that interventions are only made where they relate to the issue which is directly or substantially related to the party's specific public interest.  The focus of Mr. Fromm's organization is on the issue of free expression.

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

         So there are two additional restrictions placed on evidence to be called by Mr. Fromm on behalf of the Canadian Association for Freedom Expression Inc., namely that the evidence must relate to the specific area of expertise, namely freedom of expression and, secondly, that it not be overly repetitious.

         Third is the law with regard to expert evidence and how the law with regard to experts interacts with the general subpoena power.  Mr. Fromm tries to gloss it over, but the reality is that what we have here is a request to compel someone to come and give evidence.  That means ‑‑ and we can certainly infer from the request for the subpoena ‑‑ that the person in question has not indicated a willingness to come.  In my respectful submission, we can infer even further that the potential witness has been asked and has declined to come.  The force of a summon is to say:  Nevertheless, you shall come and you shall give evidence.

         How does that work with expert evidence?  In my submission there are two sorts of expert evidence that one might encounter in the course of a hearing.  The first is evidence from a witness who is factually connected to the matters in issue and who, in the course of giving evidence, also expresses an opinion that lies within a special area of expertise. 

         In my submission, such a fact expert who also concurrently or incidentally gives expert evidence is compellable.  He is compellable because he has evidence with regard to the facts, and the circumstance that part of that evidence may be in the form of opinion does not change the nature of his participation as a fact witness.

         However, there is another kind of expert evidence, and that is the evidence that we were hearing yesterday from Mr. Klatt.  That is evidence of a person who is knowledgeable in a particular field who is not factually connected to the case, but gives an opinion on a matter in issue in the case. 

         It is the second kind of evidence that we are dealing with today and, in my respectful submission, that evidence is not compellable.  There are established procedures for bringing the second sort of expert evidence, opinion evidence of a non-fact witness.  They include retaining that witness, arranging for his attendance and preparing, in the case of this Tribunal a given number of days in advance, a summary of the evidence to be given by that person.  That is the way you bring that sort of evidence. 

         You cannot, in my respectful submission, compel that sort of evidence.  It is not the case that I can pick an expert out of a hat and say, "Hey, this guy really knows something about the issue that I would like to deal with at the Tribunal," serve him a subpoena, and the result of that subpoena will be that whether he wishes to or not he is obliged to come and give evidence.

         I may be involved in the courts in a medical malpractice case, and I would think that the winner of last year's Nobel Prize in medicine would be an excellent witness in support of propositions that I wish to make.  I cannot simply come to the court or to a tribunal and say, "Would you please issue a subpoena for the winner of the Nobel Prize to come and testify, because he really knows what he is talking about." 

         In support of these propositions ‑‑ they are so elementary that it is somewhat difficult to find them, but I did find them in a work on expert evidence called Hodgkinson on Expert Evidence. 

         If you open up the little handout at point No. 2 on Compellability, at page 104, the text reads:

   "In Seyfang v. Searle Cooke J. considered the circumstances in which an expert would be compelled to give evidence.  To the extent that he is a witness to a fact in issue in the case, he is usually compellable, and in this respect is little different from any other witness.  The same does not however apply to evidence of opinion, unless he has some particular and important factual link with the case:

   'The English courts will not as a general rule require an expert to give expert evidence against his wishes in a case where has had no connection with the facts or the history of the matter in issue.'"

         That, in my respectful submission is enough to dispose of the expert issue.  But even stronger is taking a step back and looking at the mandate that I understood Mr. Fromm and his organization are here to support, which is that freedom of expression should take precedence over many other societal values and that it is so important that it ought not to be interfered with, even by so important a social purpose as preventing the spreading of hatred and contempt.

         As I understand it, freedom of speech includes not only the freedom to speak but the freedom not to speak.  If freedom of speech indeed includes the freedom not to speak, in my submission, it is a sorry spectacle to see the so-called advocates for freedom of speech ‑‑ a gentleman who has no desire or a lady who has no desire to come and give evidence ‑‑ nevertheless being compelled to speak when they have said that they are not interested in speaking, even though they have no connection whatsoever with the case.

         THE CHAIRPERSON:  What do you say about the issue of relevance?  Mr. Fromm is talking about calling these witnesses who, on the face of what Mr. Fromm has said to us, he wants to bolster your case?

         MR. FREIMAN:  Apparently.

         THE CHAIRPERSON:  What is the relevance on the basis that he puts it to us?

         MR. FREIMAN:  Let's get to it.  I have just outlined the principles that I want to apply, and let's look at the issue of necessity, which really encompasses relevance.

         Mr. Fromm says that the first witness that he wants to call is Mr. Jones who has a connection with an organization that apparently is interested in issues of free speech and the Internet.  We have not had the benefit of hearing what Mr. Jones would or would not say, and I take it that that is because he is not speaking to Mr. Fromm and not telling him what he would or would not say, so we have to hypothesize.    Right at the starting gate that trips up Mr. Fromm and his horse.  How can you establish relevancy if you don't know what the person is going to say?  You can ask questions ‑‑

         THE CHAIRPERSON:  He does say with respect to the three witnesses he proposed to call originally that there is relevance in respect of the social context.

         MR. FREIMAN:  I was going to look at the witnesses seriatim, but I am glad to ‑‑

         THE CHAIRPERSON:  That is fine.  You are addressing those matters.

         MR. FREIMAN:  I will address each of those matters.  Let's go quickly.

         David Jones ‑‑ as I said, it is very difficult to get anywhere on this one because we don't know what he is going to say.  We don't know what the connections are with any matter in issue in this proceeding. 

         Mr. Fromm is here to defend the interest of free speech and can say what he wants on that topic, but it is not immediately clear what the issues of freedom of speech are that apply to the task of this Tribunal, which is to determine whether there has been a communication, whether it is telephonic, whether it has been caused by the Respondent, and whether it is likely to expose people to hatred and contempt on the basis of an identifiable ground.  There may be a freedom of speech issue lurking there somewhere, but it is not immediately evident on the face of the particular section, especially in circumstances where the Supreme Court of Canada has held that this section is constitutional.

         So we have a problem at the outset in establishing what the potential connection is.  We have a more serious problem given that we don't know what the evidence is going to be, so we don't know what the nexus could be.

         Finally, I guess it is opinion evidence; presumably, it will be opinion evidence.  That is what Mr. Fromm told us, and we will deal with the problem of that in a second.  In any event, it is not necessary.  It is not necessary in light of the evidence we already have about Mr. Fromm and his organization and his intentions.  Mr. Fromm's organization, we are told, has a plethora of members all devoted to this cause, so there is no reason to believe that he could not call someone from his own organization to give this evidence.  We don't need to go outside the organization.

         He has already told us that he is going to call a Mr. Collins from British Columbia, without need of summons, to give evidence on this very issue.  In fact, if you look at the blue ribbon, I expect Mr. Klatt can give him the same sort of evidence as well.  The blue ribbon, as I understand it, indicates a devotion to the cause of freedom of speech on the Internet.  My further understanding ‑‑ and perhaps it will come out in examination-in-chief; it did not come out in the qualification of the witness and, if it does not, it will certainly come out in cross-examination ‑‑ is that Mr. Klatt is indeed a member of a number of organizations and associations devoted to this very cause, so we can get the evidence from Mr. Klatt as well. 

         There is no need to go outside of that and, if you do go outside of it, you begin to get tripped on the restrictions this Panel put on participation, namely that the evidence should not be repetitive, that it should not unduly prolong.

         What we are being asked to do is to issue a summons for an expert to add to the testimony that we already know is coming from Mr. Collins, that could be available from Mr. Klatt, and that could be called by Mr. Fromm on the basis of his own membership.

         With regard to Mr. Jones, there is also the problem that it is opinion evidence.  I submit that the passage I read to you applies directly here.  You cannot simply pick a name out of a hat and say, "This guy knows something about the topic that interests me.  Let's bring him in and have him testify."  In addition to being prohibited on the law, as a practical matter, it is unfair to the expert, unfair to compel someone who does not want to provide opinion evidence and to force him to do that, to leave his other important tasks and devote time to preparing an expert opinion and delivering it.  It is a way of circumventing the rule of the Tribunal since an involuntary expert certainly could not be forced to provide a summary of his expert testimony and we, therefore, run afoul of that rule.  In general, it is inconsistent with ideas of fairness and practicality.  You could not do it court, and you cannot do it here.

         That is Mr. Jones.

         Next we have three other witnesses:  Ms Citron, Mayor Lastman and Mr. Kayfetz.  They are said to be useful to the Tribunal on the issue of social context.

         First, let me note with regard to the restrictions on Mr. Fromm and his organization that social context is not freedom of expression.  He was not granted intervenor status to pontificate about social context, and he ought not to have the mandate for his intervention extended to areas outside of freedom of expression.  Social context by no stretch of the imagination can be said to be part of Mr. Fromm's mandate, but let's go beyond it.

         What is the nature of the evidence that is being sought?  There are only two things that one might divine from that.

         If we take seriously the concept that this is only about social context, then what we are being asked for again is expert evidence.  It is someone's opinion as to the state of social relations or the context in which speech is being spoken.  That is the only connection.  All the restrictions on expert evidence apply, plus there is really nothing to suggest that these three particular individuals have any special expertise on social context.  They are not sociologists; they are not noted writers on social context.  They are people who have their lives and have their experiences, but they are not experts by any means on social context.

         If, in fact, what Mr. Fromm means ‑‑ and in listening to his submissions yesterday I got the impression that what he really meant was that he wanted these people to give evidence ‑‑ at least Ms Citron and Mr. Kayfetz ‑‑ about specific effects on specific individuals.  If it is effects on other people, I don't know how they can give that evidence or what they can say about how things affect other people.  If it is effects on themselves, in my submission, it is entirely irrelevant. 

         Subsection 13(1) deals with communication that is likely to expose individuals to hatred and contempt.  That is not synonymous with evidence and has no contiguity with evidence of effect on the individual.  The test is not whether somebody's feelings were hurt; the test is:  Is the speech in question likely to expose someone to hatred and contempt?  There is no nexus between those two questions.

         In my submission, it is hard to get beyond the first hurdle again:  What assistance can these individuals provide to the Tribunal on a matter in issue?  What assistance can the line of questioning that Mr. Fromm proposes to subject them to be in order to advance the mission of this Tribunal?

         It was significant in the context of the very brief submissions of Mr. Christie this morning that his main reason for supporting, or one of the reasons that he wishes to support, the application is that he would like to cross-examine these people.  I am sure he would, but that is not part of the test for making a witness compellable.  The fact that somebody would like to cross-examine ‑‑

         THE CHAIRPERSON:  Generally, when you are in the same interest to the party, it deprives you of the right of cross-examination.

         MR. FREIMAN:  One would have thought so.  I can imagine ways in which inventive counsel might try to bootstrap themselves into a right of cross-examination, whether the party that calls is similar in interest.  I would obviously object to that in the unlikely event that these people are called.

         I simply note that those submissions by Mr. Christie, brief as they are, should give the Panel additional pause as to exactly what it is that is going on here.

         That, in my submission, deals with Ms Citron and Mr. Kayfetz. 

         With regard to Mayor Lastman, one wonders what on earth is being sought here.  We have already had, for better or for worse, the evidence of the Mayor as she then was at the time of the Complaint.  The Tribunal expressed some skepticism, in fact, as to the significance or the relevance of her testimony and, as I recall, it went in mainly because nobody objected to it.

         Whatever relevance ‑‑ and you have the evidence for what it is ‑‑ there was in Mayor Hall's evidence, what possible relevance can there be in Mayor Lastman's evidence?  He was not the Mayor at the time of the Complaint.  He is the Mayor now.  As Mayor, he is not an expert on social context.  As Mayor, he is not an expert on what motivated the prior Council to bring forward this Complaint.  In fact, the only thing that can be said about him is that he is the Mayor of Toronto.  To the extent that his evidence could even possibly, under the wildest stretch of the imagination, be tangentially relevant, it is merely repetitious of what Mayor Hall said.  There is no indication that he would say anything different from what she said.  We have already heard it once; there is no need to hear it again.

         It is not necessary.  Mayor Lastman's evidence is clearly outside of the area of Mr. Fromm's proposed intervention.  Like all the other subpoenas, it smacks of unfairness and of an ulterior motive.  There is nothing that this Tribunal can gain from issuing these subpoenas in terms of its mandate.  There is much that it can lose in terms of unnecessary delay added on to what has already been monumental unnecessary delay.

         These summonses ought not to be issued.

         THE CHAIRPERSON:  Thank you, Mr. Freiman.  Ms Matheson, your client is directly affected here.

         MS MATHESON:  Thank you, Mr. Chairman.  My job has been made easier because in many respects my submissions have been made by Mr. Freiman.  Let me just go through them very quickly.

         I think it would be of assistance to you to have, in addition to the ruling made in respect of Mr. Fromm's organization in particular, the earlier ruling you made which applies to all interested parties.  It is not to deluge you with a lot of paper but just so that you have all your rulings in front of you.

         You may recall that what you did in your decision was to apply some principles to the first interested party and then seriatim state that those applied to each and every interested party.

         In particular, I draw your attention to page 6 when the Tribunal was disposing of the first application, this application being for B'nai Brith.  The Tribunal stated in the second full sentence:

"While what is being granted is loosely described as interested party status, we expect the League and its counsel to be acutely vigilant not to intervene in issues in which the interests of the League are neither direct nor substantial.  Restraint is required as well with respect to any option of calling witnesses ‑‑"

And I just note that that is expressed.

"‑‑ cross-examining and participating in submissions so that these proceedings are ensured of no overlapping, unnecessary extension or prolixity."

         I draw that to your attention so that you see that you expressly addressed the question of calling witnesses.

         I adopt Mr. Freiman's submissions with respect to the scope of that right afforded to Mr. Fromm and observe that the only witness that even remotely might relate to the issue upon which this Tribunal is granted that status is the first of the four witnesses.  I adopt Mr. Freiman's submissions to the effect that, first of all, you ought not compel an independent expert witness before this Tribunal because that is not appropriate and, secondly, you have already been advised that this interested party intends to call a witness, Mr. Collins, on this issue.  In my submission, one witness on one issue is all that you get to call in a tribunal where you have been told to exercise restraint in the calling of witnesses.

         With respect to the other three ‑‑ in particular obviously Mrs. Citron, but I think it goes for all three ‑‑ I just want to dwell for a moment on section 13.1.  This Tribunal has been charged with making a decision under section 13(1), not under some other section.  This is not a case of an individual being denied access to an apartment or being denied an employment opportunity where one of the witnesses who was in the room at the time when the alleged conversation took place is not before you and you feel that, in order to evaluate the facts, you must have that person before you and conclude that, even though they are not volunteering to come forward, as a matter of necessity you need that evidence in order to make your decision.  That is not this case.

         What is this case?  You are being asked to determine whether this matter 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 a prohibited ground. 

         I just ask you to ask yourselves this question.  I have my note here of what Mr. Fromm said yesterday with regard to Mrs. Citron, which I understand he then proceeded to apply to the other two witnesses.  What he said was that he would be interested in her evidence on the effect of the words complained of on herself and the community that she represents.

         First of all, as Mr. Freiman has said, the effect on one individual is not what you are here to determine.  If you were here to determine the effect on one individual, it would not be an individual who was inside the identifiable group.  This section is focusing on the effect on people not inside the identifiable group and how they regard people who are.  How does this affect a population and how the population regards Jewish people?  That is what this section is all about.

         THE CHAIRPERSON:  Outside the group.

         MS MATHESON:  Outside the group.

         We are not going to have a parade of individuals saying, "This is how this affects me personally."  That would not assist this Tribunal.  It is a question of whether this is likely to incite hatred.

         I just say this.  It is not relevant to ask any one individual inside the group that is said to be affected how these words have an impact on them.  In my respectful submission, it cannot be described as necessary to compel that evidence.  I suppose, if someone voluntarily came forward and no one objected, you might hear, but that is not the test here.

         The other thing I note is that, to the extent that what we are looking at is the effect on a community, in this case the Jewish community, if that evidence were relevant ‑‑ and I submit that that would be a big "if" ‑‑ that is not a matter for individual opinion.  That is a matter for expert opinion, and all of the rules which Mr. Freiman has articulated would apply.  I say you don't have to get that far but, if you were to get that far, that is where you would be.  I say that either way you cannot compel this witness to come forward to deal with those issues.

         What you have here is a situation where the request is beyond the scope of the intervention that was granted because it does not have a direct and substantial connection, which was the requirement put forward by this Tribunal.  It is beyond the scope of this interested party's right to intervene.  It is outside of the scope of section 13 as well.  It also offends the rule on expert opinion evidence.

         For all of those reasons, for each independently you can, I submit, not grant the subpoenas.  I just observe that, if you are not convinced that it is necessary, I don't think you get to the stage of worrying about whether or not you should exercise your discretion one way or the other.

         The last point I make ‑‑ and I submit that this is not something you have to get to in your determination because I think each of those other three reasons are enough on their own to dismiss this.  I just observe that Mrs. Citron, our client, is 70 years old and she is not well.  I make that submission because I feel obliged to say that, but I submit that you don't have to get that far in making a determination of whether or not she ought to be compelled to come forward to this Tribunal.  I put that forward as a fourth point.

         I don't have any other submissions unless the Tribunal has some questions for me or for my client in particular.

         THE CHAIRPERSON:  Thank you.  Does any other counsel wish to speak?  Mr. Earle, please.

         MR. EARLE:  Thank you, Mr. Chairman.

         I would start by, again, adopting the submissions of Mr. Freiman and Ms Matheson with respect to their general comments on the applications.  I don't want to take too much of your time, but I want to make some general comments with respect to the Mayor.

         As I understood Mr. Fromm's application, he was suggesting that the relevance or necessity of calling the Mayor seems to stem, first of all, from the fact that he is the Mayor and that by virtue of his office he somehow has something to bring to this Tribunal and, secondly, as I understood, that he is an individual of some prominence in the community who also happens to be Jewish.

         With respect to the issue of his relevance to this proceeding as Mayor, I think that has already been addressed to some extent by Mr. Freiman.  At the time that this Complaint was brought, as you well know, in July 1996, the Mayor at that time was Barbara Hall.  She has already testified before this Tribunal, and I would suggest that to have the present Mayor appear before this Tribunal is unnecessary and unduly repetitious and would be contrary both to the requirements of subsection 50(3) and also to the comments which you made in granting Mr. Fromm intervenor status to begin with at page 1112 of the transcript.

         With respect to the question of necessity of his evidence either as Mayor or as an individual, the point has been made to you that subsection 13(1) talks first of all about exposing persons of a particular group to hatred and contempt.  We are not talking about a complaint here where one individual was involved, and we are not talking about an effect here on persons within the identifiable group.  In fact, it is more relevant to talk about the effect on persons outside that group.  So one might argue that Barbara Hall's testimony is, in fact, the best testimony you are going to get, to the extent that you consider it relevant.  To call the present Mayor, as a Jewish man, would serve no purpose.

         Those are my submissions on the point.  Thank you, Mr. Chairman.

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

         MR. RICHLER:  Thank you, Mr. Chairman.

         Very briefly, the context I heard Mr. Fromm suggest with respect to Mr. Kayfetz being a relevant witness was that he was at one point the Chair of the Canadian Jewish Congress Committee on Community Relations and that he had some position with the Canadian Occupation Army in Germany following the Second World War. 

         I don't understand how the second point could possibly be relevant.  As to the first, I am instructed that he was last Chair of that committee approximately 15 to 20 years ago.

         Speaking more particularly, I only received notice, of course, of this application yesterday and have not had a chance to speak directly with Mr. Kayfetz.  I have had an opportunity to get information from Mr. Kayfetz indirectly.  He is a man in his seventies who has, I am told, several medical conditions which would preclude him from being put in a position of stress.  Accordingly, he is extremely unwilling to testify.  He would, of course, have to deal with a subpoena if a summons were issued.

         However, he does have these medical conditions, particulars of which I do not yet have.  I am told that, if required, I can obtain medical evidence that could be put before the Tribunal which would support the position that Mr. Kayfetz should not at this stage of his life be put in a stressful situation.

         Quite obviously, Mr. Kayfetz does not want his medical condition made part of the public record, and he is very reluctant to have to collect that evidence, but that evidence will be available.

         The position of Mr. Kayfetz is that we support everything that Mr. Freiman, Ms Matheson and the others have said so far this morning in opposition to the request.  All of those submissions apply to Mr. Kayfetz. 

         If the Tribunal is disposed to consider issuing a summons with respect to Mr. Kayfetz, I would ask that we have some time within which we could collect the medical evidence that would satisfy the Tribunal that his concerns are well-placed.

         Those are my submissions.

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

         MR. KURZ:  Mr. Chair, I have four very brief points which assume the arguments that my friends have made before and which I adopt.  The points are as follows.

         One is the necessity of the Tribunal considering the matter, which is more than a rubber stamp ‑‑ and I will speak very briefly about that; the high test of necessity; the fear of misuse of the power of subpoena; and, finally, what I call the subtext.

         Mr. Freiman pointed out to you that section 50(3)(a) talks about the fact that the member or panel must consider it necessary to issue the subpoena.  This is not an administrative function.  It is not as if you go to an office and get a subpoena and fill in the name and serve it.  Mr. Fromm has to convince you and you have to consider it, so that you have to make a decision and the decision will be based on whether you have decided that the matter is necessary.

         In determining necessity, which is obviously a term that has been considered a lot recently, you have to consider whether there are other options available in order to get that information before you.  It is, again, Mr. Fromm's responsibility to prove that to you.  It is not something to simply be assumed in your considerations.

         With regard to the power of subpoena, you have heard from Mr. Freiman his concern about the power of subpoena.  My submission is that it is even more so when you are dealing with an Intervenor rather than a party with a direct interest in the matter or an Intervenor who does not have a direct interest in the matter to wield that kind of subpoena against what are clearly very unwilling witnesses, including elderly witnesses.  It smacks very much more of unfairness than it would even if a party with a direct interest did so.

         Finally, on the subtext of the matter, what I am asking you to consider is that in effect ‑‑ and I am putting it in the colloquial ‑‑ you don't want to turn these proceedings into a circus.  Allowing Mr. Fromm, in effect, to run roughshod on these people and completely ignore their rights runs that risk, that kind of risk that you seek to avoid with runes like the truth being no defence and that a human rights proceeding is not to be a proceeding in which people's rights are trampled on.  In effect, that is what happens if Mr. Fromm gets his way.

         Thank you.

         THE CHAIRPERSON:  Mr. Fromm, do you have reply?

         MR. FROMM:  Mr. Chairman and Members of the Tribunal, I will address myself briefly to the objections raised by Mr. Freiman.

         Section 50(3)(a) that was drawn to your attention says that you may issue a subpoena in order to compel evidence or documents or things that the member or panel considers necessary for a full hearing and consideration of the complaint.

         I would submit to you that the evidence that we would be able to obtain from Ms Citron and from Mayor Lastman is indeed necessary for a full hearing.   I find it instructive that Mr. Freiman himself introduced as a witness the former Mayor, Barbara Hall.  He felt that her evidence as one of the Complainants, speaking on behalf of the Toronto Mayor's Committee on Community and Race Relations, was of some relevance. 

         I think a basic principle of Anglo-Saxon justice is that the accused has the right to face his accusers.  I know that, in a sense, the Canadian Human Rights Commission is the accuser, but there were two Complainants, the Toronto Mayor's Committee on Community and Race Relations and Sabina Citron.  I think the Respondent has a right to face those people.  They signed a complaint indicating that they believed, and presumably had reason to believe, that section 13(1) had been violated. 

         Mr. Freiman saw fit to have Ms Hall testify.  I may be misstating your observations but, as far as I could tell, she said that she really did not know that much about the Zundelsite, that she had seen a little bit of it.  She certainly did not bring either a scientific or a legal perspective.  A scientific perspective would certainly have inquired into all the pages of the Zundelsite, and that was not the case.  A legal perspective would have weighed other matters.  She said that, having seen the little bit that was presented to her, she drew certain conclusions.

         It seems only fair to hear from the other Complainant.  We hear that the other Complainant is elderly and so on.  I suggest not too elderly to make complaints which, under our law, put the Respondent to tremendous expense and, I might say, the taxpayer to tremendous expense as well.

         Once this process is put into motion, people's lives are affected.  I think the Respondent and we as people interested in free speech have a right to probe why it was she thought the communications on the Zundelsite exposed people of Jewish faith to hatred or contempt.  I would submit that she initiated this process.  I think it is only fair that the Respondent and other interested people have an opportunity to probe this.

         THE CHAIRPERSON:  Are you under the impression that you would have a right to cross-examine her necessarily?

         MR. FROMM:  She would be my witness.  Would I not have the right to question her?

         THE CHAIRPERSON:  You can ask her questions, but you would not be able to cross-examine her unless you could establish according to law that she was a hostile witness.

         MR. FROMM:  I am not sure I understand the difference between questioning her and cross-examining her.

         THE CHAIRPERSON:  There is a big difference.  If you cannot cross-examine her, you will have to be satisfied with her answers, and you might just be supporting the Commission's case by asking those questions, which was the focus of your remarks as I understood them.  You are not likely to obtain evidence from her that is going to help you, are you?  She initiated this complaint, so I assume she is sympathetic to the notion that this complaint should succeed.

         MR. FROMM:  Indeed, but you may get a deeper understanding of the reasons that she feels this.

         THE CHAIRPERSON:  I don't think her reasons, subject to what my colleagues say, for laying the complaint are of any interest to us at all.

         MR. FROMM:  In the case of Mayor Lastman ‑‑

         THE CHAIRPERSON:  How many Mayors do we need to call?  We have commented on the relevance of Mayor Hall's evidence, and we will deal with that in due course.  How many Mayors do we want to hear from and to what end?

         MR. FROMM:  It is perhaps his misfortune to have inherited this baby, but he is the head of the Toronto Mayor's Committee on Community and Race Relations and presumably in some sense supports the complaint; otherwise, he perhaps would withdraw it.

         It has been asserted that the only reason I wish to call him is because he is Jewish ‑‑ and I would argue that that is not the case at all ‑‑ and that he has no particular expertise other than being the Mayor of the City of Toronto.  He may, in fact, not be an academic, but I would suggest that he holds something close to a Guinness Book of World Records in terms of longevity in municipal politics.  He must be dong something right.  He must have a pretty good street sense of what makes this city tick.  I think his evidence and his expertise might indeed be able to assist the Tribunal in judging the social context.

         It was suggested by Mr. Freiman that our brief was freedom of expression and that that had nothing to do with social context.  According to the Tribunal's own ruling, freedom of expression could not be advanced, at least in this case, on the basis that what was said was true or plausible or likely true or that the same views were held by other people who were not considered to be promoting hatred.

         However, in the ruling there was the indication that words had to be understood in a particular social context.  It would seem to me that the immensely politically successful current Mayor of the City of Toronto, who obviously has his finger on the pulse of this city, might indeed be able to assist the Tribunal in establishing a social context.

         THE CHAIRPERSON:  Obviously, Mrs. Citron, the Mayor and Mr. Kayfetz are not willing witnesses from your point of view.  You could not phone them up and say, "Come on down and give me a hand here."

         MR. FROMM:  I didn't do that, no.

         THE CHAIRPERSON:  And you wouldn't expect that you could do that; is that right?  They are unwilling witnesses.

         MR. FROMM:  I would not expect the Mayor of Toronto ‑‑

         THE CHAIRPERSON:  What about Mr. David Jones, the first witness?

         MR. FROMM:  My understanding is that Mr. Jones, while strongly in favour of freedom of expression, does not want to be a witness for this particular Complainant.

         THE CHAIRPERSON:  Complete your remarks.

         MR. FROMM:  The section on compellability cited to you from "Expert Evidence: Law and Practice" in Seyfang v. Searle says:

"Cooke J. considered the circumstances in which an expert would be compelled to give evidence.  To the extent that he is a witness to a fact in issue in the case, he is usually compellable."

         It would be submission that, as the Complainant, Sabina Citron is a witness.  She signed a complaint that such and such was the case.  I think the Respondent and others interested in freedom of speech should have an opportunity to probe that.  She, in effect, did what the Goddess of Discord did in Greek and Roman mythology.  People were having a wedding party, and she took exception to not being invited and tossed the golden apple in inscribed "To the fairest", and the brawl was on.  She signed the complaint, and immense expense has been incurred by the public and by the Respondent.

         I might say, as I know you will do when you assess all the facts and dismiss the complaint, the winner will still not be the Respondent because he will not be able to recover costs, as he might in a libel or other civil actions.  He still ends up the loser, and I think it is important to probe the state of mind and the motives and the beliefs of the person who initiated this complaint.

         THE CHAIRPERSON:  That is the essential reason why you want to call the Complainant, the motivation for laying the complaint?

         MR. FROMM:  The person swore out a complaint, presumably with evidence and knowledge that some of the postings on the Zundelsite are likely to promote hatred or contempt against an identifiable group, in this case the Jewish people.  It seems to me that the Respondent and other interested people have the right to confront the Complainant.

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

         MR. CHRISTIE:  In view of Mr. Fromm's difficulty in understanding some of the complexities that you brought to his attention in terms of rights of examination and cross-examination, I would like to say a few things about my friends' submissions.

         First of all, by what right do they say that these are expert witnesses?  Social context is not an expert matter.  We live in society, and each of us ‑‑

         THE CHAIRPERSON:  It can be.

         MR. CHRISTIE:  It could be.  Someone might claim expertise in social context, but one would be hard-pressed to find an expert in society.  It is a very vague and general term.  We have many experts in specific fields, but nobody that I know of qualifies as an expert in society or social context.

         MEMBER DEVINS:  Mr. Christie, if they are not experts, then of what assistance is their evidence?

         MR. CHRISTIE:  Let me finish.

         Social context is something that everyone has a part in and experience.  An aspect of social context can be demonstrated from a variety of perspectives, from factual knowledge, factual information.

         If someone is speaking in the social context of a funeral, which was Mr. Fromm's first example, the people who were at the funeral could say it was a funeral.  You don't need an expert in funerals to say that it was a funeral.  It is a fact that bears upon and demonstrates a social context.  The social context is the state of a funeral.  The fact is that I was there.  We were in a church or a mortuary or in a place where funerals are held, and it was in that spot that this happened.  If it had happened in some other spot, it would be in a different context?  What is the context?   The factual circumstances in which the statement is uttered, and I don't think you need an expert to demonstrate that.

         In my submission, I find it difficult to believe that there is any expert in the social context of society as a whole.  The example of a funeral is a very limited one.

         When we are speaking about this new application of section 13(1) ‑‑ and no one denies that this is to be a new application to what is beyond the scope of what most people think of as Canada ‑‑ then the social context becomes much, much broader.  The social context of the complaint area, which is Toronto, is something that people who live here could say something about and should say something about.

         If context is relevant ‑‑ and I suggest that the Tribunal has said very clearly that it is ‑‑ then it is certainly necessary to have some evidence.  What evidence do you have?

         THE CHAIRPERSON:  What do you mean by a new application?

         MR. CHRISTIE:  Section 13(1) has never been applied to the Internet before, and section 13(1) has never been applied to the circumstance, which I hope has been pretty clearly demonstrated, that at least the Internet site is located outside of Canada.  This is a new legal interpretation which is being sought to extend the jurisdiction of the Human Rights Commission and to extend the jurisdiction of the Act in ways that have never been applied, to a whole medium which has never been used before, a medium which many would contend is a new variety of communication.  You have heard that type of evidence.  You have not heard it all, but let me say this. 

         Who have you heard evidence from to demonstrate social context?  A linguist from Alberta, a clever gentleman; a historian from New York City who speaks about the motifs of historical antisemitism, who doesn't know anything about the context of Toronto or of Canada really; Irene Zundel who really doesn't know much about anything other than how much she doesn't like Mr. Zundel; Barbara Hall who really was asked to find something in the text and spent some time looking and it wasn't very clear when that was over ‑‑ she didn't really say anything about social context that I recall; and then Mr. Cunningham who said he downloaded it from a certain site; and Mr. Angus who makes presentations and speaks about the Internet, and did so here very dramatically.

         Social context has not been testified to by anybody that I recall.  Really, context is something in which real human beings live and in which this complaint arises.  That is what I understand social context to mean.

         It is necessary, and it can only be repetitious if somebody said it before.  My learned friends say this is repetitious.  Well, who has testified about anything to do with the social context in which this complaint is alleged to arise in this city, either in the past when it arose or now?  I recall no witness.

         My learned friends say that it is the mandate of Mr. Fromm to raise the issue of free speech.  We intend to argue that there is a conflict of values involved in this case and that free speech is an aspect which you have to consider in the social context.  Say, for example, that we had an ongoing debate in which tempers are raised and words are uttered that in another context might be seen as productive of a different result.  We have screaming matches and arguments where people get out of hand.  If the social context is:  We have heard these people scream at each other before and we are not impressed; we know they hate each other.  Mrs. Citron hates Mr. Zundel, and Mr. Zundel hates Mrs. Citron, maybe.  Mr. Zundel has had his house fire-bombed.  Mr. Zundel has had a lot of things happen to him where the public ‑‑ not the Jewish community, but the public ‑‑ might say, "This is a man either overwrought or out of control, and we don't take it seriously."  That is the social context. 

         What else is the social context?  Can anyone tell me what social context means other than the facts in which the average citizen in which the complaint arises would understand the utterances that are alleged to breach section 13(1)?  That must be social context.

         My learned friends say that Mr. Fromm should have no right to raise social context and compel people to testify about social context against their will.  Probably the best people to testify about social context would be those who would do so reluctantly and not out of any favouritism, because who would believe anyone who was in favour of Mr. Zundel?  That is what they would argue if he had a witness who said what his views of the social context were and that he actually thought highly of Mr. Zundel.  They would be the first people to jump up and down and say, "How can you believe these people?  They are friends of this man."  Well, that is one way to attack it. 

         Probably a more credible witness would be one who inadvertently and maybe contrary to what they intended revealed an animus which shows not that they or their motives or relevant, but that society generally would perceive that these are two hostile adversaries in a screaming match.

         THE CHAIRPERSON:  To the extent that social context is relevant, a witness in the category of an expert such as a sociologist who has done a study of what you are talking about would be a witness supportive of the theory that you propound.

         MR. CHRISTIE:  I am propounding an analysis that involves an inherent theory that society looks at people who conduct themselves in certain ways differently.  I am not a sociologist.  You say that is a theory, and I agree with you that it is a theory.  It is what I would call a rational theory, and I might argue it from common sense.  I might also call a sociologist, but I would still have to demonstrate the factual basis for that theory.

         THE CHAIRPERSON:  An expert who has made a study of it would establish the factual foundation to support his conclusions on the basis of supporting his opinion.

         MR. CHRISTIE:  With the greatest of respect, sir, I would suggest that experts cannot establish facts.  They can only take assessed facts ‑‑ facts have to be proven independently of the expert on which the expert can base their opinion.  R. v. Abbey made that clear in the Supreme Court of Canada.  You cannot have a psychologist talk to a person who is mentally ill and say, "Because of my observations of them, I come to the conclusion that at the time of the offence they had these specific delusions."  You have to prove the specific delusions, and then the psychiatrist can analyze those and say at that time, "Based on my expertise, that person would be in a state of mind ‑‑" which, of course, he would say.

         THE CHAIRPERSON:  Of course, based on the integrity of the assumptions.

         MR. CHRISTIE:  That is true; the integrity of the assumptions must be proven, and it is factual to prove those assumptions.  It is factual to prove the social context in which circumstances exist when these utterances are made, if they are attributable to the Respondent in this case.

         I know my friends were really effective in their arguments but, when you come down to looking at the difficulties this case presents, the social context is required to consider what is, in my submission, one of the most important issues:  the issue of how far section 13(1) should go to restrict speech, because that is what it does every single time it applies.  There is a balancing that has to take place, and the social context determines how we should measure and how we should assess the social impact that is, after all, what section 13(1) directs itself to, the social impact of words.

         These can best be demonstrated by considering the people who made the complaint in that they can demonstrate not their motives, because I have heard what you say about that, but their participation, if any, in the exchange.  If it is a total stranger making the complaint and there has never been any public debate between these parties before, one then sees a much more credible case, a case that is credible not because it is based upon some better motive but because the public would perceive differently a debate between the leaders of the Liberal Party and Conservative Party than they would see a comment made by someone who was powerful against a total stranger because of their race, religion or ethnic origin. 

         The public might very well perceive that the remarks to which Mrs. Citron takes issue, whatever they may be, are really part of a debate between those two parties or parties involved in a political process.  They might identify themselves by their race, but it is not because of their race that the debate exists in the public perception.  It is a controversy between some Germans and some Jews.

         That is not to be, I would suggest, logically interpreted as demonstrating a context of hostility to all Jews that the public would perceive, or that any reasonable person in the public would acquire. 

         I don't know what level of perception Human Rights Tribunals normally take of society.  Do we take it that the most susceptible person might acquire this phenomenon of hatred or contempt or ridicule?  Do we take what might be a reasonable person?  I would like to suggest that, objectively, it would be best to take the view of what effect this would have on reasonable people hearing this type of conversation or this communication.

         MEMBER DEVINS:  Mr. Christie, is the only way to get this evidence by compelling these witnesses to testify?   I hear your argument with respect to relevance, but I guess I am grappling with whether ‑‑

         MR. CHRISTIE:  I can't answer that.  I don't know whether there are other witnesses.  Certainly, vis-à-vis Mrs. Citron, I can think of no more credible witness to demonstrate the existing state of affairs that is publicly known between Mrs. Citron and Mr. Zundel.

         MEMBER DEVINS:  If it publicly known, does that not imply that there are other witnesses who could testify to that?

         MR. CHRISTIE:  Not anyone with as much knowledge as Mrs. Citron of the actual controversy or conflicts between them. 

         The very fact is that probably Mrs. Citron would know more about it because it is not necessarily known in detail by the public at large, but there is a general perception.  After a long period of time, after repetition in the media of charges and counter-charges between those individuals, it would be arguable that the average person sees this hostility in a context that is not necessarily racial or religious oriented, but personal. 

         If it is a personal conflict that is occurring that the public would perceive in the context in which it is made, then I am not so sure that you should find that it is productive or likely to expose anyone to hatred or contempt because of racial or ethnic origin.

         Moving on, there is no suggestion that David Jones is reluctant.  I don't know ‑‑

         THE CHAIRPERSON:  That is what Mr. Fromm said.

         MR. CHRISTIE:  Mr. Fromm did not say he was reluctant ‑‑ oh, to get involved in this case, yes.  Reluctance in what sense?

         THE CHAIRPERSON:  He doesn't want to be here.

         MR. CHRISTIE:  Well, who does?  I am sure none of us really does.

         The fact of the matter is that reluctance is quite often expressed in terms of "I will come if you subpoena me."  Most people don't want to be seen as volunteering.  I wouldn't want to be seen as volunteering either.

         THE CHAIRPERSON:  I understood Mr. Fromm to have said that he did not want to be a witness in this case.

         MR. CHRISTIE:  Again, I suggest that it would be appropriate to say that he should not be compelled if he were an expert.  Again, my learned friends say that his only possible function is as an expert.  The social context of debate about the Internet and regulation and control of the Internet is a factual matter as to social context.  It may not be a factual matter known to everyone, but it is certainly known to those who are involved in that debate, and he is. 

         I am not here to suggest that he should be called as an expert to express his opinions on what should and should not be the law, but if the state of circumstances in which we live today involves controversy and developments of regulation, then these are factual matters within his particular knowledge.  He is involved as an advocate, I agree, of a particular point of view, but he would know the fact as to where the state of that controversy is.

         Thank you.

         MS MATHESON:  Mr. Chairman, may I just ask this question?  Mr. Christie has elaborated in a completely different way from the party seeking these subpoenas about one point.  If the Tribunal wishes to go down that road, I have one responding point.

         It was not something that Mr. Fromm stated, and I would suggest that it is irrelevant.

         THE CHAIRPERSON:  There were some fresh points in his discussion; I hope it can be brief.

         MS MATHESON:  Extraordinarily brief.

         THE CHAIRPERSON:  Go ahead.

         MS MATHESON:  In my submission, the important statements were those made by Mr. Fromm at the outset and at the conclusion of his reply, which were that the Respondent has a right to confront the Complainant, which is entirely inappropriate.

         Mr. Christie just now made a lengthy submission about there being no more credible a witness than Mrs. Citron with regard to a public understanding of her relationship with Mr. Zundel.  I only note the last thing that Mr. Christie said.  Toward the end of his submissions he said that their relationship was not known in detail by the public at large.

         I simply say this.  Mrs. Citron is precisely the wrong person to have come and testify about what the public, meaning not her, might appreciate or not appreciate about her relationship with Mr. Zundel.  She is exactly the wrong person for that purpose.

         I make another observation.  To the extent that this is relevant, which I doubt, there is another person involved in that, which is Mr. Zundel.  There is no doubt that Mr. Christie, if he wishes to, on instructions from his client, can bring that evidence forward, to which I expect I would strongly object when the time comes.  I just want to make that additional comment.

         MR. FREIMAN:  If I could have just one minute, it will not detain the Tribunal at all.

         I simply wish to point out that we start with social context and within two minutes we get back to motive as to why Ms Citron brought it, or we get back to expert evidence as to what the state of society is all about.

         In addition to that, which I think was patent in Mr. Christie's remarks, I note that we are not dealing here with a complaint about what Mr. Zundel said about Sabina Citron.  We are dealing here with a complaint about what Mr. Zundel said about Jewish people.  It is not a leap of logic, not even a pole vault of logic, to get from one to the other.  It is a ballistic missile into the ionosphere to get from the issue of Mr. Zundel's remarks about the Jewish people to a context which Mr. Christie says is not known to anyone anyway between Mr. Zundel and Ms Citron.

         Either it is known to everyone, in which case it is open and notorious and evidence can be brought from anywhere, or it is not known to anyone except Mr. Zundel and Ms Citron, in which case it cannot be relevant. 

         The same with Mr. Jones' potential evidence.  Either it is known to everyone or it is not known to anyone.  In either case, there is no assistance from the witness.

         THE CHAIRPERSON:  We will take our morning break now.

‑‑- Short Recess at 11:00 a.m.

‑‑- Upon resuming at 11:25 a.m.

         MR. CHRISTIE:  Could I ask a couple of points of clarification.

         First of all, we are a little bit confused about the state of affairs as to our request for directions yesterday.  I know there was a suggestion and I heard the words ‑‑ and I don't have them verbatim ‑‑ from my friend that, as far as the amendments to the remedies of compensation and punishment were concerned, the Commission took the view that they were not retroactive.  I heard those words.  I think what that meant was that the Commission ‑‑ I think my friend meant to say that he was of the view that they would not be applied retroactively.  He was not saying they were not retrospective.  If they retrospective, they could apply, notwithstanding that they were legislated after.

         I leave that for a moment.  To me, it is at least slightly confusing, and maybe it is my ignorance.  The problem I have is:  If the first view is what the Commission intended, could we take it from the exchange that you had at that time that it is your view and your ruling that you will not be applying the amended remedies of compensation and punishment?

         THE CHAIRPERSON:  I think the Tribunal should express that in some language, and I propose to do that on Thursday morning.

         With respect to the argument we just heard on the subpoenas, we will reserve our ruling on that until Thursday morning as well.

         MR. CHRISTIE:  Thank you.  I take it then that we not consider being bound by the timetable for submissions which you had suggested earlier.

         THE CHAIRPERSON:  I think that is the case.  We can ignore that, subject to what we say in our ruling ‑‑ and I cannot anticipate everything that we might say.

         MR. CHRISTIE:  Could I just make one further point.  We have to raise at the first convenient time a motion which we would like to give you a very brief outline of at the moment. 

         As a result of the amendments, particularly section 48.1(2) which sets out qualifications for the new Canadian Human Rights Tribunal, we will be seeking to raise at a time convenient to yourselves a motion based on a reasonable apprehension of institutional bias arising out of the wording of that section which says that the members who have been appointed ‑‑ and that includes, at least I am sure of, yourself, sir, and Ms Devins, and I think it is true, too, of Mr. Jain.  You have been reappointed as of July 18, 1998 under the new Canadian Human Rights Tribunal and, therefore, I take the legislation to mean that you have met the qualifications.

         The qualifications have been changed from what used to be the Human Rights Tribunal Panel, in section 48.1(2), to these words, that you must have experience, expertise, interest in and sensitivity to human rights. 

         Our position is that, in balancing the conflicting values of individual liberty and human rights, the institutional bias created by the qualifications is something we would like to argue.  I don't intend to argue that now, but I would like you to direct me, if you would, to say when you would be willing to hear us on that point.

         THE CHAIRPERSON:  Obviously, I have not consulted with my colleagues, but I would suggest that in that regard we would simply follow the practice direction, reference to which we made yesterday.

         MR. CHRISTIE:  That will be sometime in December then.

         THE CHAIRPERSON:  Yes.

         MR. CHRISTIE:  With time limits that you could tell us about later with regard to submissions, if you would.

         THE CHAIRPERSON:  If you have a motion to bring, in conformity with the practice direction you would prepare the motion and the grounds for the motion, the authorities and so on.  We would like counsel, as in all motions, to assist us with an outline of your argument with the motion.

         MR. CHRISTIE:  Thank you for the direction.

         In respect of the document that Mr. Klatt endeavoured to introduce yesterday, my friend suggested that it was 1 of 9 or 1 or 14, I am not sure which.  We have at least 14 pages of that now and.  In our view, it is surplus but, if my friends want it, we have it.  If Mr. Klatt could take the stand, I could introduce it through him.

         MR. FREIMAN:  Before we do that, I think it was stated yesterday that Mr. Christie would have an answer for us this morning with regard to his plans for further witnesses.  This would be a very opportune time, so that the Commission and others could prepare for further evidence.

         THE CHAIRPERSON:  Let's begin with Mr. Klatt.  How long do you think you will be with him, bearing in mind that we will not be sitting tomorrow?

         MR. CHRISTIE:  I anticipate that probably I will be the remainder of the day in-chief, but it is hard to predict.

         THE CHAIRPERSON:  Mr. Freiman, what do you say?

         MR. FREIMAN:  I expect a half-day in cross-examination.

         THE CHAIRPERSON:  Is there anyone else who would be much more than that day with Mr. Klatt altogether?

         MR. KURZ:  I may be an hour.

         THE CHAIRPERSON:  Will you have another witness available on Thursday?

         MR. CHRISTIE:  At the moment I am not sure which one.

         MR. KURZ:  We were given notice of a Karl Rupert as the next witness, and that is the only notice that we received, Mr. Chair.

         MR. CHRISTIE:  He is present and he would be available.  You will have to forgive me; I am having to accomplish re-entry from the ionosphere and I may be out of touch with my clients.  Mr. Freiman put me there.

         THE CHAIRPERSON:  Let's assume, then, that Mr. Rupert would be called as the next witness, following Mr. Klatt.

         MR. CHRISTIE:  I think that is a reasonable assumption, barring unforeseen changes.

         THE CHAIRPERSON:  With the reasonable assumption about the duration of his evidence, it looks like we will have a day and a little bit left.

         MR. CHRISTIE:  I would not expect that his evidence would take more than half a day.

         MR. FREIMAN:  I think it is highly unlikely that there will be much cross-examination, if any, of Mr. Rupert.

         THE CHAIRPERSON:  These times are extremely valuable, as we have said frequently.  We will deal with Mr. Rupert, and then there will be another witness, I take it, to take us to the end of evidence on Friday?

         MR. CHRISTIE:  I am sure there would be.

         MR. FREIMAN:  Who?

         MR. CHRISTIE:  I can't tell you; I don't know at the moment.

         THE CHAIRPERSON:  Will you know by 2:30?

         MR. CHRISTIE:  I can try.  I will do my best.

         In regard to that, I have to ask one favour.  There is a Supreme Court judge in British Columbia who wants me to be on a pre-trial conference at 12:30, 9:30 their time, and I have arranged to do it by cell phone.  I don't know how long it will take.

         THE CHAIRPERSON:  We will recess for lunch at 12:30 then.

         MR. CHRISTIE:  Thank you. 

         THE CHAIRPERSON:  Ms Matheson, please.

         MS MATHESON:  Mr. Chairman, I just observe that Mr. Christie represented yesterday to the Tribunal that we would learn at 9:30 this morning who his witnesses would be.  I am prepared to wait until 2:30, but I think it is only fair that we hear at 2:30 who they are going to be.

         THE CHAIRPERSON:  I understood that he is going to do that.

         MEMBER OF THE AUDIENCE:  Sir, could I ask a question?

         THE CHAIRPERSON:  What is your question?

         MEMBER OF THE AUDIENCE:  You mentioned that there was something very valuable, and I did not understand what that was.

         THE CHAIRPERSON:  Time, sir.

         MEMBER OF THE AUDIENCE:  Thank you, sir.

         MR. KURZ:  Mr. Chairman, we are going to be at the end of this week in the same position when we come back again in December, wondering who Mr. Christie's witnesses are.  I ask, through you, that we get notice of that information as well so that we are not in the same position on the first day that we come back here in December.  Frankly, it appears that without your assistance we will never get this kind of information.

         THE CHAIRPERSON:  I hope we will know very clearly what the order of things is going to be at the beginning of December.

RESUMED:  BERNARD KLATT

         MS MATHESON:  Mr. Chairman, someone has just indicated that Mr. Rupert is in the room.  Mr. Earle reminds me, of course, that there is an order excluding witnesses and he asked why Mr. Rupert is in the room and how long he has been in the room.

         MR. CHRISTIE:  I can't answer the last question and I can't answer the first question.  I don't control Mr. Rupert.  Mr. Rupert is here apparently. 

         THE CHAIRPERSON:  Is he in the room?

         MR. CHRISTIE:  He is in the room.  He doesn't speak English ‑‑

         THE CHAIRPERSON:  I don't care if he speaks English.  He should be excluded.  Will Mr. Rupert stand up?  Please leave the court room.

         MR. KURZ:  He has been here throughout, Mr. Chair.  I have seen him publicly, if not every day we have been here, almost every day.

         THE CHAIRPERSON:  Please leave the hearing room.

         MR. RUPERT:  When will be my hearing date?

         THE CHAIRPERSON:  You will have to speak to Mr. Christie at the luncheon recess.  Please leave the hearing room.

EXAMINATION-IN-CHIEF

         MR. CHRISTIE:

         Q.   Mr. Klatt, yesterday we were considering the information you had from MCI, and Mr. Freiman was of the view that he wanted to see the rest of the pages.  What was the page number that you were referring to?  Was that page 9?

         A.   Yes, page 9 was the page that we were looking at yesterday.

         Q.   Have you included now all the other pages that are in that particular publication?

         A.   This was from a slide presentation of 14 pages in total.

         Q.   So this is now the total presentation; is that correct?

         A.   That was the complete extent of the document.

         Q.   In regard to your opinion, does it confirm your understanding of the relationship between the Internet and the switched net?

         A.   Yes, it is an accurate portrayal of the point that we were trying to make yesterday, where the Internet is not synonymous with the telephone network and the telephone network is viewed as being a separate network from the Internet.

         MR. CHRISTIE:  Could we ask to have this marked, then.

         THE CHAIRPERSON:  Is there any objection?

         MR. FREIMAN:  No.

         THE REGISTRAR:  Page 9 was marked as R-32.

         THE CHAIRPERSON:  We will mark this with a new number.

         THE REGISTRAR:  The 14-page document will be marked as R-33.

EXHIBIT NO. R-33:  Document entitled:  MCI Panel Session: Does Web Telephony Have The Same Potential As The Web?", dated April 2, 1998

         MR. CHRISTIE:

         Q.   What I would like to do is keep your evidence focused on the opinion of Mr. Angus and resume consideration of Mr. Angus' evidence.

         Roughly where we left off was at page 1120.  You gave evidence about the nature of the web server and the web browser, whether one was active and one was passive, and you gave your evidence on that point.  We dealt with Mr. Angus' view that they were both active.  Is that correct, sir?

         A.   Those are the points that we discussed.  In my experience and opinion, to characterize the web server as an active component of the Internet is incorrect, for the reasons that we previously discussed.

         THE CHAIRPERSON:  Would you raise your voice a little, please.

         MR. CHRISTIE:

         Q.   What can you tell us about the origins of the World Wide Web?

         A.   The concept was developed by a gentleman known an Tim Berners-Lee who worked at the CERN Institute in Switzerland.

         Q.   What was CERN?

         A.   CERN is a research institute in, I believe, Bern, Switzerland.

         Q.   What problems were they trying to solve at that time?

         A.   As a research institute, they were engaged in various types of information exchange, primarily textual documents, where they would need to compare research papers from other researchers working in different facilities.  The Internet was being used, but it was not as convenient as they would like because e-mail and file transfer protocols did not serve a very useful and worthwhile purpose for what they were designed to do.  In their particular type of research work they found it would be advantageous to be able to refer to footnotes or documents containing relevant information, and that facility did not exist in e-mail or file transfer protocols that were available at that time.

         This gentleman came up with the concept of being able to use this hypertext where you can encode a term or a word or a sentence to be used as an activation point to bring up additional material that would be relevant to that particular word or concept in a different document.

         Q.   What is HTTP and HTML?

         A.   Those acronyms refer to hypertext transfer protocol and hypertext markup language, the emphasis being on the textual nature.  It is not an audio transfer protocol; it is not a method for controlling audio information that is presented.

         Q.   How do the terms HTTP and HTML relate to the Zundelsite?

         A.   The Zundelsite does not communicate telephonically because there is no transfer of sound information.  The