Toronto, Ontario

‑‑- Upon resuming on Thursday, November 12, 1998

    at 9:45 a.m.

         THE CHAIRPERSON:  I will deal with some preliminary matters.

         An issue has been raised on behalf of the Respondent concerning the enactment of the amendments to the Canadian Human Rights Act which came into force on June 30, 1998 as Statutes of Canada 1998-99.  The specific area of concern revolves around the repeal of section 54(1) of the Act and the substitution of a new section 54(1) and section 54.1(1).

         Counsel for all parties take the view that the amendments to the Act, including those affecting section 54(1) of the old Act are not retrospective in operation and therefore do not bear on the issues in these proceedings in that regard.

         We agree that it is trite law that no statute shall be construed to have a retrospective operation absent clear evidence that such a construction is intended.  This presumption has no application to enactments or amendments which are procedural only.

         With regard to Mr. Fromm's application, Mr. Fromm of the Canadian Association for Free Expression Inc. asked that a summons issue pursuant to section 50(3)(a) of the Canadian Human Rights Act to four persons:  Sabina Citron, Mel Lastman, Ben Kayfetz and David Jones. 

         Mrs. Citron is one of the Complainants in these proceedings. 

         Mel Lastman is now the Mayor of Toronto. 

         Ben Kayfetz, we are told by the applicant, is a long-time associate of the Canadian Jewish Congress in which organization he held a position of Director of Community Relations and has been active in the monitoring of hate propaganda against Jews since the early 1960s.

         Mr. Jones is said to be connected to an organization related to freedom of speech.

         Mr. Fromm seeks to justify the compelling of Mrs. Citron to give evidence concerning the effect of the words in the complained of documents on herself and the community she represents and to explain why the words have the effect of exposing Jews to hatred or contempt.

         Mr. Lastman, he said, could give evidence as to the social context of Toronto society and the effect of the words in his own extremely wide jurisdiction where he has had a lengthy and distinguished career as a municipal politician.

         Mr. Kayfetz is offered as an invaluable source of evidence on the social context of Canadian society over the past four decades and could provide the Tribunal with the context to the complaints in these proceedings.

         None of these references is expected to be voluntary, the last three mentioned perhaps for obvious reasons, and Mr. Jones because, as Mr. Fromm says, he does not want to give evidence in this case.

         The Tribunal has an obligation before issuing a summons and forcing the attendance of witnesses compelling that they give oral or written evidence on oath to consider whether such evidence is "necessary for the full hearing and consideration of the complaint." 

         Before applying the standard contained in section 50, it should be pointed out that the organization Mr. Fromm represents was granted status in this Hearing upon specific terms, as was the case with the other interested parties.  Broadly, the Tribunal made it clear that the participation of interested parties should not operate to unnecessarily extend the Hearing by calling redundant and repetitious evidence.  Moreover, the nature of such evidence proposed to be called should fit squarely within the rules of relevance.  There is no absolute right to summon witnesses (Cortroni v. Quebec Police Commission, 1978, 1 S.C.R. at page 1048.

         The exercise of powers accorded under section 50(3)(a) imposes a duty on the Tribunal to use its power in a manner that is neither unfair nor oppressive, but reflects a careful exercise of discretion.  The power accorded to the Tribunal is an exceptional one (Canadian Pacific Airlines v. Canadian Airline Pilots Association, 1993, 3 S.C.R., 724).

         We are mindful of the coercive nature of the power of summons.  This Tribunal is given a wide discretion under the scheme of the Act to protect the orderly processes of this Hearing.  The applicant's terms of participation do not, in our view, extend to addressing the areas he seeks to explore through these witnesses, even assuming their relevance which is doubtful.

         The Tribunal has heard evidence at length from Barbara Hall who was the Mayor of Toronto at the time the Complaint was initiated by the Mayor's Committee.  It is difficult for the Tribunal to understand how evidence from Mayor Lastman would be of any assistance to us in relation to its obligation respecting a full hearing and consideration of the complaints.  Such evidence would in our view, at the very least, be redundant and repetitive and would not likely fall within an area of relevance to the issues in this Hearing.

         With respect to Sabina Citron, Ben Kayfetz and David Jones, it is our opinion that the evidence sought to be elicited from these witnesses has no direct or substantial connection with any issue in this Hearing.  Even if such connection could be established, it is arguable that each of these witnesses would be called on the basis of some expertise and so are not, as a matter of law and practice, usually compellable except in relation to facts in issue.

         Accordingly, we deny Mr. Fromm's application in respect of each of the persons named.

         On other matters, with respect to Mr. Christie's intended motion, we said we would set a timetable for that.  We are directing that the motion and the written argument with respect to that matter be delivered by November 27, that the response be delivered by December 4, that the reply, if any, be delivered by December 8, and we will hear the motion on the morning of December 9.

         I want to remind counsel, particularly Mr. Christie, that by tomorrow at two o'clock we will expect a list of witnesses he intends to call to complete his response to the Commission's case and the best estimate of the duration of each witness.  I will also ask other counsel for their intention with respect to what witnesses they expect to call in reply, if any.  I realize that presents some difficulty in relation to not having heard everything that Mr. Christie has in mind.

         MR. CHRISTIE:  Mr. Chairman, I have to raise an objection briefly.

         The hours of sitting have been extended from what were 10:00 a.m. to approximately 4:30 p.m. to, on the last occasion, 9:30 a.m. to actually 5:10 on Tuesday.

         At the present time I find the circumstances quite oppressive.  We should not be viewing this situation as a gallop to the finish line now that the evidence of the Commission is finished.  This has serious consequences not only for my ability to represent my client but also for my client's health.  My client is in his late fifties, and from Tuesday evening at eight o'clock until Wednesday at 3:30, he was either in Wellesley Hospital or the St. Michael's Coronary Care Unit. 

         This is not a desire to malinger, because he is here today with the same chest pains he had before.  The doctors have not been able to find evidence of heart disease.  I am not particularly reassured about that, but I assure you that we intend to be here if at all possible within reasonable hours.

         I personally find this a stressful hearing.  I am opposed by seven counsel, if not more, on most occasions, and it has been quite intense.  The witness finds it tiring, I am told, and I think I understand that.  It is a strenuous thing to be examined, maybe even more so to be cross-examined.  I find it difficult to be on my feet from 10:00 a.m. until 5:00.  I don't think I am being wimpish by saying that to do a good job and to avoid difficulties of either judgment or emotion we should have reasonable breaks.

         It is not as if I want to sleep in until 9:30, but I really would like to be better prepared.  That requires preparation sometimes in the morning and sometimes in the evening.  When you have such a long day ‑‑ and I know it is a long day for you, too, but I don't really feel that the stress on yourselves is as severe as it is on counsel; at least, I hope it is not.  Certainly I feel the stress.

         I am not begging for anything unusual.  I really ask you to consider this.  I am advising you that, if something serious happens, it will in my opinion be as a result of the stress of these proceedings to Mr. Zundel.  He is not under any other stress that I am aware of.

         I really feel that it is important to give at least the same consideration to us.  I know everybody is anxious to get it over with, and I don't blame anybody for that, but we would ask for the same consideration vis-à-vis time as was given to the Commission in the presentation of any of their evidence, whether it is reply or anything else.  Tempers can become frayed; people get overtired when we push ourselves too hard.  I am simply asking you to consider our request to return to what we thought were normal hours.  Of course, it is up to you.  You are quite entitled to fix hours as convenient and necessary. 

         I am advising you of the difficulty my client is experiencing, and I am trying to be candid about my own.  I am asking you to perhaps return to 10 o'clock and 4:30 with a reasonable time for the lunch break.

         THE CHAIRPERSON:  Thank you, Mr. Christie.  I will discuss that with my colleagues at the break.  I believe this is the first time we have heard that there may be a health problem here and, of course, we will be sensitive to that.

         I am not far removed from the role of counsel as opposed to sitting here.  Both are stressful, but I am very mindful that the day sometimes seems longer to counsel than to the trier of fact.  I can recall one occasion where there was a judge who was in the habit of resuming at 7:30 until 10 o'clock at night, which is enough to cause counsel to lose a lot of weight in the space of a week.  I am not insensitive to the needs of counsel to have time to prepare their case and to the stress involved in a long day.

         We will review our position on that and respond to your concerns.

         MR. CHRISTIE:  Thank you, Mr. Chairman. 

         I have three very brief points to cover with Mr. Klatt, if I may.

         THE CHAIRPERSON:  We had hoped that we had completed that, but they are very brief?

         MR. CHRISTIE:  They are indeed.

         THE CHAIRPERSON:  Before you do that, Mr. Fromm is on his feet.

         MR. FROMM:  Mr. Chairman, I was wondering if it would be possible to have a written copy of your ruling.

         THE CHAIRPERSON:  It is on the record.  I don't have it written in a form that I can distribute.  It is on the record.  If I can get one for you, I will do that.  I would have to get someone to complete it in that form.

RESUMED:  BERNARD KLATT

EXAMINATION-IN-CHIEF, Continued

         MR. CHRISTIE:

         Q.   Mr. Klatt, over the break have you considered any other points you want to observe on the specific evidence?

         A.   Yes, I have.

         Q.   Were there two points that you wanted to bring to light in that regard?

         A.   Yes.

         Q.   Would you refer to the pages, please, that you want us to consider.

         A.   Pages 1421 and 1422, I believe.

         Q.   I think you mentioned to me page 1409.

         A.   Yes, 1409 is the first one.

         Q.   And the line?

         A.   Line 20.

         Q.   There it says:

"The Internet does what it does to route the call."

Could you comment on that, please.

         A.   Apparently this is in reference to accessing a web site.  This goes to the extent of understanding of Mr. Angus of the Internet.  The Internet does not route telephone calls when accessing a web site.  This indicates a misconception or a fundamental confusion regarding the operation of the Internet in this regard.

         Q.   On page 1421 and 1422 you had referred to lines 2 to 16 on both pages.  There Mr. Angus was dealing with a fax machine.  I will just read those lines quickly, and then I will ask you to comment.

"Q.  What does a telephone used as a fax line transmit?  Does it transmit graphics?

A.  It transmits sound and electrical waves in the voice frequency.

Q.  And it communicates them graphically.  Is that right?  Please tell me if that is so.

A.  Graphical communication ‑‑

Q.  I have a fax machine, and it transmits graphically, doesn't it?

         A.     It transmits graphics.  It doesn't transmit graphically; it transmits electrically.

Q.  Yes, I understand that it transmits electrically, but what it transmits, the meaning of what it transmits, is a graphic message.

A.  What goes through is a graphic message, yes.

Q.  So, in that sense, it is not communicating the sense, the meaning, telephonically; it is perhaps transmitting data that is translated into a graphic image at the other end.  Is that not correct?

A.  No.

Q.  Tell me, then:  In transmission of a fax, is it not transmitting a graphic image?

A.  It is transmitting a graphic image telephonically.

Q.  It is transmitting a graphic image telephonically?

A.  Yes.

Q.  By the means of the communication of sound?

A.  Yes.

Q.  The sound is not communicating anything, sir, is it?  It is electronic impulses that create an image through the translation process.

A.  I am sure, sir, you have had the experience of your telephone ringing and you answer and it's a fax machine that has called you by mistake.

Q.  Yes, and I don't get any meaning out of it.

         A.  No, but you do hear a sound.

Q.  You hear a sound, but that sound has no meaning and it does not transmit meaning, does it?

A.  Not to your ear, no.

Q.       According to your definition, then, if a telephone communicates Morse code, you are saying that it would not be communicating telegraphically; it would be communicating telephonically.

A.  In my view, the adverb "telephonically" is derived from telephony which includes, as this definition says, graphics information."

         A.   This section is hard to view, other than a few points to raise.  It goes to the fundamental misunderstanding of the basic electrical nature of telecommunications.  He is insisting that the fax machine communicates graphics telephonically, but according to our dictionary definitions and accepted usage and practice in the industry it would be an incorrect assertion.  He is also attempting to assert that the means of communication is by sound.

         Q.   Does sound transmit the fax?

         A.   No, it does not.  The sound is totally incidental, much like in the case of a modem where it is irrelevant to the communication of the information itself.

         Q.   You have been asked a number of specific questions in relation to parts of the evidence of Mr. Angus.  Does that signify that you agree with the rest of his evidence?

         A.   No, it does not.  You could spend an extensive amount of time rebutting in greater detail errors and misconceptions and inferences that are not based on reality.

         Q.   Does your analysis enable you to comment on the general level of expertise of Mr. Angus that you perceive from the evidence you have analyzed?

         A.   Yes.  In trying to be charitable to Mr. Angus, he no doubt has expertise in some areas of telephone systems but, in terms of the Internet and explanations relating to it, there are significant problems, inaccuracies, errors, misconceptions and statements that do not accord with reality

         MR. CHRISTIE:  Those are my questions.  Please answer questions from other counsel.

         THE CHAIRPERSON:  Mr. Freiman, please.

         MR. FREIMAN:  I think Mr. Fromm has pride of place.

         THE CHAIRPERSON:  I am sorry, do you have any questions, Mr. Fromm?

         MR. FROMM:  I do.

CROSS-EXAMINATION

         MR. FROMM:

         Q.   Mr. Klatt, do you have the transcript of Mr. Angus' testimony there?

         A.   I do.

         THE CHAIRPERSON:  You will remember my admonition on behalf of the Tribunal about not covering repetitive areas here.

         MR. FROMM:  I do, Mr. Chairman.

         THE CHAIRPERSON:  One might conclude that Mr. Christie has, with his usual skill, covered the field quite well.

         MR. FROMM:    Q.  I would like to call your attention to pages 1185 and 1186.  I would like you to begin reading at line 22 on page 1185 down to line 7 on 1186, beginning with Mr. Christie's question.

A.       "Q.  Not to you, though.  How much do

you get paid every day for being here?

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

Q.   Anything for preparation?

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

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

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

         Q.   Mr. Klatt, how much are you being paid to testify in this case?

         A.   I am not being paid to be here or to give testimony.

         Q.   Mr. Klatt, are you familiar with an organization known as Electronic Frontier Canada?

         A.   Yes, I am.

         Q.   Are you familiar with its mission statement?

         A.   Yes, I have been a member of Electronic Frontier Canada, this will be my second year.

         Q.   I am going to show you a copy of the mission statement of Electronic Frontier Canada that has been downloaded from their web site.  I was wondering if you could identify this.

         A.   Yes.  That is their statement of purpose and goals that they are attempting to achieve and accomplish in relation to the Internet and free speech.

         MR. FROMM:  I would like to request that this mission statement of the Electronic Frontier Canada be marked as an exhibit.

         MR. FREIMAN:  The witness has said that he knows about Electronic Frontier and that he is a member.  It evades me what the relevance is.

         THE CHAIRPERSON:  Can you give us that, Mr. Fromm?  Keeping in mind why we are here, I am not sure what the mission statement of Electronic Frontier Canada has to do with this Hearing.  We know that there are issues in this case about free speech as it impacts on section 13.  We will deal with those matters in due course, but I am not sure that this advances anything, that there is an organization called this and that they have a mission statement.

         MR. FROMM:  Mr. Chairman, this is an organization that is made up of Internet Service Providers and people interested in the Internet.  Since that is the medium that this Hearing is focused on, I thought it might be of some relevance to have their mission statement.

         THE CHAIRPERSON:  I don't see it, unless anyone else wants to speak it.

         MR. CHRISTIE:  One thing I would like to say in support of it is that it speaks of clear institutional policies.  At the end of the day, our argument will be that interpreting section 13(1) in a much broader and new way is not very clear law.  It would be impossible to say that it is clear institutional policies that are of assistance, and it might useful to be able to then say that people who are in this line of work and who are interested in this area are really requesting clarity so that there is a clearly defined boundary.  I will be arguing that that is relevant to the free speech issue.

         I don't know that we have any other source for that knowledge.  There are only three short statements, and they are quite succinct in expressing what I would like to say.  At least I can say that, in the context of our society, the people who are dealing with this problem are very anxious to have clarity.  The interpretation being sought by the Commission is going to involve far greater vagueness and confusion and uncertainty.  At least I could point to the fact that people are seeking some legislative certainty so that free speech can be demarcated.  At least we can know where we offend and where we don't offend.

         THE CHAIRPERSON:  Mr. Freiman, please.

         MR. FREIMAN:  I still see little, if any, relevance.  The fact that there are groups who have positions on free speech is of interest, I am sure, to Mr. Klatt and to Mr. Fromm.  Again, it is simply unclear to me how that advances any matter in issue in these proceedings.

         I am not saying that this is harmful in any way.  I just don't see that it is relevant in any way.

         MR. FROMM:  I sought to bring forth witnesses who might be able to shed some light on the social context in which these statements are communicated.  This is certainly part of the social context, being an organization that represents Internet users and service providers.

         THE CHAIRPERSON:  Mr. Fromm, we are ruling against you on this.  We are not going to allow this document in.  Go on to your next question, please.

         MR. FROMM:

         Q.   Mr. Klatt, are you familiar with the Electronic Frontier Canada policy regarding the responsibility ‑‑

         THE CHAIRPERSON:  Go on to your next question.  We are not going to allow the policy in because we consider it irrelevant and we are not going to mark the policy as an exhibit.  Go on to your next question.

         MR. FROMM:

         Q.   Can you indicate what the organization known as Electronic Frontier Canada believes are the responsibilities of Internet Service Providers?

         THE CHAIRPERSON:  That is the same area.  I am asking you to go into a new area, any new area that you have in mind.

         MR. FROMM:

         Q.   Are you aware of any statements made by the Electronic Frontier Canada with regard to efforts to censor the Internet in Canada?

         THE CHAIRPERSON:  Please follow the direction of the Tribunal.

         MR. FROMM:  Is the Electronic Frontier Canada completely verboten?

         THE CHAIRPERSON:  We are not going to allow any further questions about the Electronic Frontier.

         MR. FROMM:

         Q.   Mr. Klatt, I would like to call your attention to Respondent Exhibit R-38 which you made reference to last day.  Do you have a copy there?

         A.   Yes, I do.

         Q.   This is a document called "British Columbia Internet Association".  I wonder if you could refresh our memory as to exactly what the British Columbia Internet Association is.

         A.   It is an association of Internet providers in British Columbia who choose to belong to this organization.

         THE CHAIRPERSON:  Mr. Fromm, we did allow this exhibit in through this witness and responded to the submissions of Mr. Christie in relation to page 2 of 3, paragraph 4 which deals with publication and/or telecommunications.  It was limited to that area of this document.  The rest we did not consider relevant.

         MR. FROMM:  That was page 2?

         THE CHAIRPERSON:  Yes, paragraph 4, "Publication and/or telecommunications."

         MR. FROMM:  I want to call the witness' attention to page 1.

         THE CHAIRPERSON:  Put the question, and we will rule on it.

         MR. FROMM:

         Q.   Are you a member of the BCIA?

         A.   Yes, I am a member and have been since late 1995.

         Q.   So you are aware of their policies?

         A.   Yes, I am.

         Q.   Have you had any role in formulating those policies?

         A.   To some extent.  I have had the opportunity to talk to Dr. David Godfrey, the President of BC Internet Association regarding some of these topics.

         Q.   To your knowledge, has the BCIA taken a position about freedom of expression on the Internet?

         A.   Yes.  In the second paragraph ‑‑

         MR. FREIMAN:  I rise again.  Mr. Fromm, being somewhat new to these proceedings, perhaps does not appreciate the extent of the Tribunal's ruling.

         As I understand it, the policy about freedom of expression by organizations such as Electronic Frontier or the BCIA has not been found to be of any relevance by the Tribunal and therefore should not be the subject matter of questions.

         MR. CHRISTIE:  Let me make one observation.

         In my submission, this being a case of first instance in this field, the Tribunal would be making a serious error to exclude consideration of social context beyond the narrow confines of what the Commission would ask you to consider.

         Social context means social context in which we live, and this is part of it.  In my submission, it is entirely inappropriate to restrict that term to only that which is of interest to the Complainants.  That, in effect, is what will be the result if nothing in this nature is admissible.

         THE CHAIRPERSON:  I doubt that that is a correct statement, Mr. Christie.  All the Tribunal is saying at this point is that we do not consider the BCIA Code of Conduct with respect to freedom of expression relevant in determining the result of this Hearing, according to law.

         Move on to your next question.

         MR. FROMM:

         Q.   Just to refresh our memory, Mr. Klatt, is it correct that you are what is called an ISP or Internet Service Provider?

         A.   I have been an Internet Service Provider from March of 1995 through the end of April 1998.

         Q.   In your role as an Internet Service Provider and on the basis of your previous testimony and as an active member of several Internet associations, are you aware of any attempts to pressure ISPs who attempt to guarantee freedom of expression for their clients, from your own experience?

         A.   Yes.  I have personal experience, plus I am aware of other ISPs and other individuals who are attempting to either harass ISPs or engage in what could be determined as Internet censorship attempts.

         Q.   Could you share with the Tribunal some of the specifics.

         A.   One of the earliest attempts I am aware of is the action of the Simon Wiesenthal Center which involved sending out 1,200 letters to Internet Service Providers across North America advising or requesting or attempt to coerce Internet Service Providers into not allowing specific types of content that they disagreed with to be hosted on web sites.

         THE CHAIRPERSON:  I don't want you to pursue that line any farther.

         MR. CHRISTIE:  I would like to put on the record my submission that it is entirely appropriate to demonstrate that these proceedings are being used for political purposes, and that is the thrust of the evidence.  To exclude that consideration of the social context, to exclude that from consideration as to whether the complaints are in good faith or not or whether this process is being manipulated for political purposes, which is a very fundamental part of our argument, would be to deny consideration of one of the primary and most important things that you should be analyzing, and that is the good faith or otherwise of the Complainants and Intervenants and the weight to be given to their submissions.  That should definitely be qualified by what efforts they have done and used in the past to achieve their political objectives, and whether you should take their submissions seriously or not should depend on whether they are actually involved in endeavouring to manipulate this Tribunal, manipulate this law, to achieve political objectives or not.

         To demonstrate that they are attempting to achieve those same political objectives by other means, by more obvious political means, would certainly be relevant to show that these are not bona fide complaints but merely political complaints.

         THE CHAIRPERSON:  I would suggest to you, Mr. Christie, that my colleagues and I would be offended by any suggestion that we are subject to some manipulation.  We dealt with the issue that you raised at the outset of this Hearing, and you know what our ruling was in that regard, and I should not have to repeat it each time it is raised.

         Go on to your next question, Mr. Fromm.

         MR. FREIMAN:  I rise somewhat reluctantly and paradoxically.  The Tribunal ruling is precisely correct, specifically on the area of irrelevance of motive.

         I have been sitting rather than standing to object because, to be candid, I expect that every ruling of this Tribunal will become the subject matter of a judicial review application in any event.

         THE CHAIRPERSON:  We should not be interested in that, Mr. Freiman.  I don't want to know about that.

         MR. FREIMAN:  I withdraw that.  The reason that I had not risen in that, even in terms of this Tribunal's proceedings, we may be penny wise and pound foolish as we get the verdict every 15 seconds with regard to a ruling.  In some sense, it may be preferable insofar as the witness has personal experience; it may bear on his own credibility to allow him to testify about his own experience and his own actions.  That may reflect positively on his credibility; it may reflect negatively on his credibility.

         MR. CHRISTIE:  I love the double standard of the Commission which is so beautifully ironic.  When it is useful to their purposes, they advise you to accept it; when it is not, they don't.  When you agree with their position, they agree with you.  Then they would like to qualify that by saying:  But, on the other hand, we would like to be able to cross-examine on this area.

         The motive of the witness is somehow relevant and, of course, we avoid the Complainants' motives being questioned by both your ruling and the fact that they never testified.  Your latest ruling is that bona fides is also irrelevant.

         I would submit that it is becoming too obvious that the Commission would like to play both sides of the street, to argue both sides of the issues, and to get the benefit of a ruling both ways.  It is not unusual; we have seen this practice more than once, but we object to it.  We submit that it is something which should not be encouraged and should not be allowed.

         THE CHAIRPERSON:  Please proceed to your next question, Mr. Fromm.

         MR. FROMM:  Mr. Chairman, in trying to organize the questions for Mr. Klatt, I was mindful of comments made on Tuesday about the focus of our particular brief.  I tried to focus on the areas that have to do particularly with freedom of speech.

         Q.   Mr. Klatt, in response to the last question, as I recall it ‑‑

         MR. CHRISTIE:  Excuse me, I want to interrupt and correct one remark that you made, Mr. Chairman, that I implied that you were being manipulated.  I said that the Commission is attempting to manipulate you, and I did not say that you were being political although that is not something that I would like to speak about.

         The point I make is that you implied that I had said that you were politically manipulated.  The attempt is being made.

         THE CHAIRPERSON:  Proceed, Mr. Fromm.

         MR. FROMM:

         Q.   In response to my last question you talked about the experience of other Internet Service Providers.  I would like to direct you to any personal experience you might have had in terms of efforts to intimidate you in terms of the service you provided.  Have you had any such experiences?

         A.   Yes.  We have been approached by Sol Littman.  We were one of the Internet Service Providers that had clients that had material that Mr. Littman seemed to have some concern or objection with.  We were contacted.

         THE CHAIRPERSON:  We have that on the record now.  I would like you to move on to another topic.

         MR. FROMM:  Can I explore what happened next?  He says he was contacted.

         THE CHAIRPERSON:  The fact that some organization associated with any of the interested parties in this matter attempted to influence Mr. Klatt or some other ISP not to publish certain matters is not before us.  It is not an issue that is of relevance to us.  I am asking you to move on to another area.

         MR. FROMM:  Does it not form part of the social context of intimidation which in fact led to the complaint which is before you today?

         THE CHAIRPERSON:  Ms Matheson, please.

         MS MATHESON:  Mr. Chairman, I just stand to put our position on the record.  This is an expert witness, and I agree with the Tribunal's comments that what happened with the Electronic Frontier and its organization is not before us, but I think it is proper to explore the particular bias of the witness who is testifying. 

         I am not sure where Mr. Fromm is going, but ‑‑

         THE CHAIRPERSON:  We heard evidence-in-chief on this topic the day before yesterday in Mr. Christie's questioning.

         MS MATHESON:  Could I ask you to repeat that.  I did not quite hear it.

         THE CHAIRPERSON:  What I was saying is that we heard some evidence in the same area, if I am correct, the day before yesterday when Mr. Christie was examining Mr. Klatt.

         Would you go on to your next question, please.

         MR. FROMM:

         Q.   What was your response to this question?

         A.   It occurred over a period of time, from the summer of 1996 initially to early this year, when a variety of press conferences were held, accusations were made, and attempts to have the Attorney General of British Columbia take action based on false information that was provided to the Attorney General regarding our business.  There was intimidation of suppliers regarding our business.  There was economic loss to our business.  The original company that hosted our equipment received intimidation which caused them to ask us to vacate the premises with our equipment.  The subsequent business that agreed to house our equipment also was subject to implied threats of commercial blackmail. 

         We attempted to hold a public meeting to present our views to the public.  The CJC takes credit on their web page for influencing the Town of Oliver to cancel that meeting facility.

         Our current Internet provider has received implied threats or what they perceive as intimidation from the CJC which has caused them to interfere with our connectivity and business relating to the Internet.

         Q.   I would just like to go back for a second.  Torontonians are said to have a very self-centred view of themselves, and the hinterland in their opinion begins at Highway 427.  Could you tell us a bit about the town of Oliver.  How big is it?

         A.   It is not particularly large.  It is close to 5,000 in population.

         Q.   After the intimidation attempts began and there was pressure on the Town Council and pressure on your local newspaper, what had become of your status in that community, in this small town of Oliver?

         A.   Through various attempts that were made, a petition was circulated throughout the town.

         Q.   Who initiated this petition?

         A.   I don't know the specific name, but it was circulated on the letterhead of the Town of Oliver.  They claimed to have gathered 1,200 signatures and some say 900, but it was a significant number of signatures asking the Attorney General to investigate whatever this petition said. 

         We lost contracts with the School Board.  We were requested not to continue providing instructional services at the college regarding Internet courses.

         Q.   How long have you lived in that community?

         A.   I have lived there approximately 30 years.

         Q.   As the pressure escalated and the petition was circulated, did you feel that your position as an ISP was understood by your fellow citizens?

         A.   No, it was not, because the local newspaper publisher seemed to take it on as a personal crusade of his to give us front page headlines in a negative light whenever possible.

         Q.   Did you try to do anything to communicate to people who were not on the Internet in your community what your position was an ISP, as you saw it?

         A.   Yes.  We were interviewed by various news media organizations, TV and various radio stations, but they did not have much coverage locally.  That was the motivation to hold a local public meeting so that we could express our views regarding our role as Internet Service Providers in relation to the Internet.

         Q.   Who was the intended audience of this public meeting?

         A.   The local citizens of the surrounding area of the town of Oliver.

         Q.   After the announcements of this public meeting had become known, what was your experience?

         A.   There was a variety of activity that took place to attempt to coerce the Town Council into revoking the permission they had given us to use the meeting room.  There were threats or statements made to the effect that there was going to be violence.  There was no basis in fact that I was ever able to determine.  We talked to the local RCMP, and they told me that they had no expectation of violence.

         The opportunity to use the meeting room was revoked the day before it was scheduled, after considerable expense had been incurred in terms of advertising in radio and print.

         Q.   Who revoked the permission to hold the meeting?

         A.   The Town Council held what was referred to as an emergency meeting on Friday morning.  The meeting was scheduled for Saturday evening.  On Friday morning they held an emergency Town Council meeting and then personally drove out to my place of business and delivered me a one-page letter stating that we no longer had the right to use the meeting room we had previously reserved.

         Q.   The Mayor and Council made this decision.  Did anybody else claim responsibility for having changed the Town Council's mind on this?

         A.   Yes.  As I mentioned, the CJC on their web page implies that they take credit for accomplishing that result.

         Q.   As of April of this year you were no longer an Internet Service Provider in British Columbia; is that correct?

         A.   Yes, that is t rue.

         Q.   But you indicate that you continue to run into problems.  What sort of problems?

         A.   The company that bought out the portion of the Internet business that we sold, a company in Penticton, have our server still active although it is not used in hosting web sites.  It was our own corporate web server.  The fact that it was still visible on the Internet seemed to annoy people in certain organizations in Toronto.  The Internet company in Penticton received phone calls which resulted in the disconnection or shutdown or interference with our Internet access to our current provider in Penticton.

         Q.   Do I understand correctly that this was in spite of the fact that you are no longer an Internet Service Provider?

         A.   That is correct.

         Q.   You are no longer providing service to any organization, political or otherwise?

         A.   Other than our own business content, that is correct.

         MR. FROMM:  Those are my questions.

         THE CHAIRPERSON:  Thank you, Mr. Fromm.

         MR. FREIMAN:  I wonder if I might ask the indulgence of the Tribunal to have Mr. Angus sit at the counsel table to assist me with references.

         MR. CHRISTIE:  I have no objection.

CROSS-EXAMINATION

         MR. FREIMAN:

         Q.   Mr. Klatt, you indicated that, unlike Mr. Angus, you are not being paid at all for your testimony today.  Is that right?

         A.   True.

         Q.   Where did you stay last night?

         A.   In Toronto.

         Q.   Where?

         A.   At a friend's place.

         Q.   Who is the friend?

         A.   Mr. Zundel.

         Q.   How long has he been your friend?

         A.   Since I first met him.

         Q.   When was that?

         A.   I can't remember the date.

         Q.   A week ago, two weeks ago, a month ago, a year ago, two years ago?

         A.   It would have been probably sometime before the initial instigation of these hearings, to my recollection.

         Q.   Sometime before 1996?

         A.   I don't know.

         Q.   Since then have you been in contact on a relatively regular basis with your friend Mr. Zundel?

         A.   In relation to this case, yes.

         Q.   And in relation to the shared areas of interest that you have?

         A.   I am not sure what you are referring to.

         Q.   Do you share areas of interest with Mr. Zundel?

         A.   In terms of freedom of expression on the Internet, yes.

         Q.   You communicate with him by e-mail from time to time?

         A.   No, I don't.

         Q.   You have stayed at his place before?

         A.   Yes.

         Q.   And he has visited your place in British Columbia?

         A.   Yes.

         Q.   Before we start, I want to get some idea of the scope of the expertise that you claim in the areas in which you have testified.  As I understand it, the basis for your claim of expertise is two-fold.

         First of all, it was your career before you formed Fairview Technologies.  Right?

         A.   That would be part of it.

         Q.   That was your career in the various companies that you read out to us at some length a few days ago.  Am I right that that basically consists of computer servicing and troubleshooting, whether computers or computer networks?

         A.   That would be a better characterization of the work I did for the first few years when I was at Digital Equipment, but that is not the extent of my experience with any of the three companies.

         Q.   That is the common thread that runs through all of your employment before you founded your present company, is it not?

         A.   If you wish to characterize it that way.

         Q.   You have characterized it that way, haven't you?

         A.   I don't think so.

         Q.   We have agreed that that does characterize what you did for Digital Equipment.

         A.   In part.

         Q.   In part.  In dealing with General Electric - Calma, you state that you worked in the research and development of high-speed broadband coaxial data networking of CAD/CAM systems and you installed and troubleshooted computer systems, data and network installations.  That is correct, is it not?

         A.   That is a partial description of what I did there, yes.

         Q.   That is your description.

         A.   I didn't describe everything I did.

         Q.   For Philips-Signetics, you say you designed and managed installation of corporate campus fibre optic data network, coordinated over 200 network systems consisting of mainframes, minicomputers, work stations and PCs, and you were responsible for troubleshooting and maintaining network services. 

         I am not being inaccurate about that, am I?

         A.   What is listed there is part of what I did, yes.

         Q.   So far as the Internet is concerned, even in the early days from 1980 onward, you were a consumer or a user of the Internet.  You would use it in order to do research or to exchange communications via e-mail.

         A.   E-mail was not the only use for the Internet at that time.

         Q.   You also accessed information on the Internet in matters of interest to you.

         A.   Certainly.

         Q.   You did not construct Internet systems?

         A.   No, they were multimillion dollar ‑‑

         Q.   In fact, you are not an engineer?

         A.   I don't have a formal degree or title as engineer, no.

         THE CHAIRPERSON:  Excuse me for interrupting.  Did you receive a certificate from the British Columbia Institute of Technology?

         THE WITNESS:  Yes.  It is a two-year program.  It is not a four-year program that results in a formal engineering degree.

         MR. FREIMAN:

         Q.   In terms of your expertise since founding Fairview Technology Centre was in a number of businesses.  One was simply the installation, servicing and advising customers with regard to personal computers and installation of networks.

         A.   Yes, that constituted part of our business.

         Q.   Since 1995 you were also an Internet Service Provider or ISP?

         A.   Yes.

         Q.   And that has been one of your major bases for familiarity with the Internet?

         A.   Yes.

         Q.   In that guise, we could generally divide the services you provided into three areas.  You provided ‑‑

         MR. CHRISTIE:  I object to the choice of the word "guise" in the question.  I think my friend should avoid being tricky.  The word "guise" implies deception, and I don't think it is fair to put it to the witness that he accepted or adopted any guise.

         MR. FREIMAN:

         Q.   In your role ‑‑ which I think Mr. Christie in going through the numerous dictionaries to which he has apparent access will find is a definition of "guise." 

         In your role as Internet Service Provider, I think we can identify three different roles.  The first, you will agree with me, was to provide e-mail services to business and residential clients.

         A.   That is certainly a common function of an Internet Service Provider.

         Q.   And it is one that you fulfilled?

         A.   Yes, we did.

         Q.   How would that come about?  How would you come to provide e-mail services for a particular individual or business?

         A.   The individual requesting to use our services would establish an account with us, and they would either choose or be given an e-mail address. 

         Q.   How would that individual or group come to know about you and the availability of these services?

         A.   In a variety of means or methods.

         Q.   Tell me some of them.

         A.   We were listed on a number of the Internet Service Provider lists that are available on the Internet.  We were listed in the BC Internet Association list of providers in British Columbia.  We did some advertising.

         Q.   Where would the advertising have been?

         A.   In print form in Oliver and Osoyoos and by word of mouth.  We were active in various discussion groups and e-mail discussion groups on the Internet.

         Q.   Did you advertise in France?

         A.   No.

         Q.   Do you know anybody in France?

         A.   Not that I know of.

         Q.   How would people in France know about you?

         A.   By any of the above methods.

         Q.   By reading the Osoyoos press?

         A.   If somebody sent it to them.

         Q.   So we have e-mail.  The second is web site hosting.  As I understand it, that means that you provided room on your server for people who wished to have web sites.

         A.   That would be essentially correct.

         Q.   Again, people would know about that service in the same way as they knew about e-mail service?

         A.   They could assume that, if we had the ability to provide e-mail service, it was likely that we would also be able to provide web service.

         Q.   And your advertising was the same?

         A.   I don't recall the advertising making specific mention of web hosting services, but it may have.

         Q.   Without any specific recollection of advertising web hosting services, do you have any idea how people would know to come to you if they wanted to place a web site on your server?

         A.   Like I mentioned, they could contact us through our listing in the various Internet Service Provider listings that are on the Internet, through word of mouth, through discussion on various e-mail lists, possibly through IRC.

         Q.   What is IRC?

         A.   Internet Relay Chat discussion.

         Q.   In addition to those two services, you also provided as, I take it, a significant part of your business dial-up access to the network?

         A.   Yes, we did have ability for people to connect in.

         Q.   Aside from those areas that you say give you expertise in the Internet and its ramifications, do you keep up with developments in the Internet?

         A.   I try to.

         Q.   Can you tell me what publications or what sources of information you consult?

         A.   One of them would be Internet World; our participation in the Internet trade shows such as Internet World in San José; Comdex; participation in the BC Internet Association's seminars and meetings; my participation in the Internet Service Provider-related discussion e-mail lists that I subscribe to.

         Q.   Would you agree with me that, if you are indeed an expert in the Internet, you ought to know the standard publications and reference sources?

         A.   It would be hard to know all of them.

         Q.   For instance, are you familiar with the Cook report?

         A.   I know of it.

         Q.   What is that?  Tell me something about it.

         A.   I know of it.

         Q.   What do you know of it?

         A.   It is a fairly expensive report beyond the financial means of our company to subscribe to.  I have seen reference to it.

         Q.   It is an authoritative source, but you simply cannot afford access to it.

         A.   I would not know if it is considered authoritative.  I believe it is largely the opinions of the writer.

         Q.   You also say that you are familiar with Internet telephony.  Is that true?

         A.   I have used Internet telephony products.

         Q.   You have done more than just give evidence about your use of Internet telephony products.  You have spoken to us extensively over the last few days about what Internet telephony is, haven't you?

         A.   Do you consider that an extensive exposition on that topic?

         Q.   I heard the words almost as often as you say we heard the word "telephone" in Mr. Angus' evidence.  You did refer to Internet telephony on more than one occasion, didn't you?

         A.   True.

         Q.   And about its characteristics?

         A.   Yes.

         Q.   And how it compares with standard telephony?

         A.   In what way?

         Q.   You told us about Internet ‑‑ I will retract that.  Let me get to the point.

         Do you do any reading on Internet telephony?

         A.   I subscribe to the VON e-mail list that Jeff Pulver distributes.

         Q.   Are you familiar with a publication called "Computer Telephony?"

         A.   Is that a hard copy print publication?

         Q.   Yes.

         A.   I don't believe I get that.

         Q.   Maybe this will refresh your memory.  Have you ever seen this before?

         A.   Not this issue.

         Q.   Have you ever seen any issues of it before?

         A.   Not that I would say.

         Q.   Would you agree with me that it appears to be a publication devoted to various applications of telephony involving computers?

         A.   It describes itself as a magazine for computer and telephone integration.

         Q.   Do you think that is relevant to Internet telephony?

         A.   Possibly.

         Q.   Would you look at the Table of Contents.  Do you see any articles about Internet telephony?

         A.   The cover mentions IP telephony gateway, so this particular issue appears to have at least one article on that topic.

         Q.   In fact, it has two articles on the topic, if you look at the Table of Contents.  It is difficult because you can't click on a hard copy to get the Table of Contents.  Maybe I can help you.

         I am showing you page 4.  You will see there is a heading called "IP Telephony."  Just confirm to me that it does appear to deal with IP telephony in two articles.

         A.   There is a reference to an executive summary of IP telephony.

         Q.   Yes, and then an article about gateways.

         A.   It looks like a comparison between four IP telephony gateway products.

         Q.   Would you look at page 6, please.  Can you tell me who the editor of this magazine is?

         A.   A person by the name of Rick Lumen.

         Q.   And the editor-in-chief?

         A.   Our good friend Harry Newton.

         Q.   Have you ever heard of him before?

         A.   In the context of his Telecom Dictionary, yes.

         Q.   You have heard about the Telecom Dictionary, but you were not aware that he also publishes a magazine about computer telephony?

         A.   No, I wasn't.

         Q.   I also noticed in your discussion of Internet, we heard mainly about the United States.  You will agree with me?

         Let me ask you:  Do you also know anything about the Internet in Canada?

         A.   Certainly.

         Q.   Do you know what CaNet is?

         A.   That was the network that was set up to provide high-speed Internet connections in Canada.

         MR. CHRISTIE:  Is it C-a-Net?

         MR. FREIMAN:  CaNet, one word, or there may be an asterisk between the "a" and the "N."

         Q.   Do you know what Ca2Net was or is?

         A.   I don't have specific details on that.

         Q.   And Ca3Net?

         A.   I don't know what that involves.

         Q.   What about an organization with the acronym CANARIE?  Do you know who they are?

         A.   I have heard of it, but I can't remember what all the letters stand for.

         Q.   You have heard of the organization.  What does it do?

         A.   I can't give the complete definition of what it does, but it is my understanding that it is a group that is involved with the government to encourage the use of the Internet in relation to industry and research across Canada.

         Q.   Is that an authoritative group? 

         A.   I am sure there are knowledgeable people in it.

         Q.   Do you know anybody who is associated with it?

         A.   Personally, no.

         Q.   Do you know any names?

         A.   Personally, no I don't.

         Q.   You spent some time with Mr. Christie dealing with definitions from a dictionary.  I have to tell you, Mr. Klatt, that I formed the impression that you were not necessarily familiar ‑‑

         MR. CHRISTIE:  I object to my friend expressing any question in cross-examination with which he prefaces the question with the remark "I formed the impression" or any of his own judgments or opinions.  I will object to those as being improper cross-examination.  It is not my friend's place to express his views.

         THE CHAIRPERSON:  It is preamble to a question, I assume, in relation to his understanding of certain evidence.  I took it in that way and I assume ‑‑

         MR. FREIMAN:  I intended it in exactly that way and nothing further or more insidious.

         Q.   Am I correct, sir, that you were not necessarily familiar with all of the technical dictionaries that Mr. Christie referred you to?  Am I right or am I wrong?

         A.   In what context or aspect?

         Q.   Did you know about them?  Did you know what they were?

         MR. CHRISTIE:  About what?

         MR. FREIMAN:

         Q.   Did you know about the existence of those volumes?

         MR. CHRISTIE:  I object to the question.  What volumes is he talking about?  Give the witness a chance to know.

         THE CHAIRPERSON:  I assume that you will become more specific in terms of what you are speaking about.

         MR. FREIMAN:  Yes.

         Q.   Did you know about all the volumes that Mr. Christie put to you?

         A.   I don't personally own them.

         Q.   Had you seen them before?

         A.   Some.

         Q.   Fibre Optics and Lightwave Communications Standard Dictionary; had you seen that before Mr. Christie asked you to look at it?

         A.   I believe so.

         Q.   Dictionary of Data Processing (1988); had you seen that before Mr. Christie ‑‑ you can have a look at the document, if you wish.  Dictionary of Data Processing; had you seen that before you talked about it?

         A.   Not that one, no.

         Q.   Communications Standard Dictionary (1983) at page 12.  Had you seen that before Mr. Christie referred you to it?

         A.   Not this specific page, no.

         Q.   This volume?

         A.   Possibly.  I have consulted in the course of my work over the years a large number of reference materials.

         Q.   So you may have seen this before, but you don't have a specific recollection of it.

         A.   True.

         Q.   Dictionary of Computers, Data Processing and Telecommunications (1984) at page 19 by Jerry M. Rosenberg, Ph.D.  Had you seen that before Mr. Christie referred you to it?

         A.   It is possible, but I can't say for sure if I have or not.

         Q.   You don't recall whether you have seen that one either.

         The Computer Glossary we know you didn't see because you told Mr. Christie you didn't see it.  Correct?

         A.   True.

         Q.   Newton's Telecom Dictionary you had seen, but you don't trust.

         A.   It is interesting.

         Q.   The fact that it is the number one selling telecommunications dictionary is of no special relevance to you,

         MR. CHRISTIE:  Is that question placed as a statement of fact?  My friend is positing this question that it is the number one best-selling dictionary.  I have not heard any expert evidence on that point.

         THE CHAIRPERSON:  I assume he is putting it as a proposition to the witness.

         MR. CHRISTIE:  It didn't sound like a proposition of a hypothetical nature or a question.

         MR. FREIMAN:

         Q.   Mr. Klatt, do you accept that it is the number one selling telecommunications dictionary?

         A.   Not from personal knowledge.

         Q.   Do you have any reason to believe that what is stated on the cover of this publication, "#1 selling Telecommunications Dictionary" is incorrect?

         A.   There are all kinds of ways of characterizing whether or not a particular publication would be best-selling.

         Q.   It says "#1 selling Telecommunications Dictionary."  Do you have any basis to believe that that is not correct, on any definition of the

                                    Toronto, Ontario

‑‑- Upon resuming on Thursday, November 12, 1998

    at 9:45 a.m.

         THE CHAIRPERSON:  I will deal with some preliminary matters.

         An issue has been raised on behalf of the Respondent concerning the enactment of the amendments to the Canadian Human Rights Act which came into force on June 30, 1998 as Statutes of Canada 1998-99.  The specific area of concern revolves around the repeal of section 54(1) of the Act and the substitution of a new section 54(1) and section 54.1(1).

         Counsel for all parties take the view that the amendments to the Act, including those affecting section 54(1) of the old Act are not retrospective in operation and therefore do not bear on the issues in these proceedings in that regard.

         We agree that it is trite law that no statute shall be construed to have a retrospective operation absent clear evidence that such a construction is intended.  This presumption has no application to enactments or amendments which are procedural only.

         With regard to Mr. Fromm's application, Mr. Fromm of the Canadian Association for Free Expression Inc. asked that a summons issue pursuant to section 50(3)(a) of the Canadian Human Rights Act to four persons:  Sabina Citron, Mel Lastman, Ben Kayfetz and David Jones. 

         Mrs. Citron is one of the Complainants in these proceedings. 

         Mel Lastman is now the Mayor of Toronto. 

         Ben Kayfetz, we are told by the applicant, is a long-time associate of the Canadian Jewish Congress in which organization he held a position of Director of Community Relations and has been active in the monitoring of hate propaganda against Jews since the early 1960s.

         Mr. Jones is said to be connected to an organization related to freedom of speech.

         Mr. Fromm seeks to justify the compelling of Mrs. Citron to give evidence concerning the effect of the words in the complained of documents on herself and the community she represents and to explain why the words have the effect of exposing Jews to hatred or contempt.

         Mr. Lastman, he said, could give evidence as to the social context of Toronto society and the effect of the words in his own extremely wide jurisdiction where he has had a lengthy and distinguished career as a municipal politician.

         Mr. Kayfetz is offered as an invaluable source of evidence on the social context of Canadian society over the past four decades and could provide the Tribunal with the context to the complaints in these proceedings.

         None of these references is expected to be voluntary, the last three mentioned perhaps for obvious reasons, and Mr. Jones because, as Mr. Fromm says, he does not want to give evidence in this case.

         The Tribunal has an obligation before issuing a summons and forcing the attendance of witnesses compelling that they give oral or written evidence on oath to consider whether such evidence is "necessary for the full hearing and consideration of the complaint." 

         Before applying the standard contained in section 50, it should be pointed out that the organization Mr. Fromm represents was granted status in this Hearing upon specific terms, as was the case with the other interested parties.  Broadly, the Tribunal made it clear that the participation of interested parties should not operate to unnecessarily extend the Hearing by calling redundant and repetitious evidence.  Moreover, the nature of such evidence proposed to be called should fit squarely within the rules of relevance.  There is no absolute right to summon witnesses (Cortroni v. Quebec Police Commission, 1978, 1 S.C.R. at page 1048.

         The exercise of powers accorded under section 50(3)(a) imposes a duty on the Tribunal to use its power in a manner that is neither unfair nor oppressive, but reflects a careful exercise of discretion.  The power accorded to the Tribunal is an exceptional one (Canadian Pacific Airlines v. Canadian Airline Pilots Association, 1993, 3 S.C.R., 724).

         We are mindful of the coercive nature of the power of summons.  This Tribunal is given a wide discretion under the scheme of the Act to protect the orderly processes of this Hearing.  The applicant's terms of participation do not, in our view, extend to addressing the areas he seeks to explore through these witnesses, even assuming their relevance which is doubtful.

         The Tribunal has heard evidence at length from Barbara Hall who was the Mayor of Toronto at the time the Complaint was initiated by the Mayor's Committee.  It is difficult for the Tribunal to understand how evidence from Mayor Lastman would be of any assistance to us in relation to its obligation respecting a full hearing and consideration of the complaints.  Such evidence would in our view, at the very least, be redundant and repetitive and would not likely fall within an area of relevance to the issues in this Hearing.

         With respect to Sabina Citron, Ben Kayfetz and David Jones, it is our opinion that the evidence sought to be elicited from these witnesses has no direct or substantial connection with any issue in this Hearing.  Even if such connection could be established, it is arguable that each of these witnesses would be called on the basis of some expertise and so are not, as a matter of law and practice, usually compellable except in relation to facts in issue.

         Accordingly, we deny Mr. Fromm's application in respect of each of the persons named.

         On other matters, with respect to Mr. Christie's intended motion, we said we would set a timetable for that.  We are directing that the motion and the written argument with respect to that matter be delivered by November 27, that the response be delivered by December 4, that the reply, if any, be delivered by December 8, and we will hear the motion on the morning of December 9.

         I want to remind counsel, particularly Mr. Christie, that by tomorrow at two o'clock we will expect a list of witnesses he intends to call to complete his response to the Commission's case and the best estimate of the duration of each witness.  I will also ask other counsel for their intention with respect to what witnesses they expect to call in reply, if any.  I realize that presents some difficulty in relation to not having heard everything that Mr. Christie has in mind.

         MR. CHRISTIE:  Mr. Chairman, I have to raise an objection briefly.

         The hours of sitting have been extended from what were 10:00 a.m. to approximately 4:30 p.m. to, on the last occasion, 9:30 a.m. to actually 5:10 on Tuesday.

         At the present time I find the circumstances quite oppressive.  We should not be viewing this situation as a gallop to the finish line now that the evidence of the Commission is finished.  This has serious consequences not only for my ability to represent my client but also for my client's health.  My client is in his late fifties, and from Tuesday evening at eight o'clock until Wednesday at 3:30, he was either in Wellesley Hospital or the St. Michael's Coronary Care Unit. 

         This is not a desire to malinger, because he is here today with the same chest pains he had before.  The doctors have not been able to find evidence of heart disease.  I am not particularly reassured about that, but I assure you that we intend to be here if at all possible within reasonable hours.

         I personally find this a stressful hearing.  I am opposed by seven counsel, if not more, on most occasions, and it has been quite intense.  The witness finds it tiring, I am told, and I think I understand that.  It is a strenuous thing to be examined, maybe even more so to be cross-examined.  I find it difficult to be on my feet from 10:00 a.m. until 5:00.  I don't think I am being wimpish by saying that to do a good job and to avoid difficulties of either judgment or emotion we should have reasonable breaks.

         It is not as if I want to sleep in until 9:30, but I really would like to be better prepared.  That requires preparation sometimes in the morning and sometimes in the evening.  When you have such a long day ‑‑ and I know it is a long day for you, too, but I don't really feel that the stress on yourselves is as severe as it is on counsel; at least, I hope it is not.  Certainly I feel the stress.

         I am not begging for anything unusual.  I really ask you to consider this.  I am advising you that, if something serious happens, it will in my opinion be as a result of the stress of these proceedings to Mr. Zundel.  He is not under any other stress that I am aware of.

         I really feel that it is important to give at least the same consideration to us.  I know everybody is anxious to get it over with, and I don't blame anybody for that, but we would ask for the same consideration vis-à-vis time as was given to the Commission in the presentation of any of their evidence, whether it is reply or anything else.  Tempers can become frayed; people get overtired when we push ourselves too hard.  I am simply asking you to consider our request to return to what we thought were normal hours.  Of course, it is up to you.  You are quite entitled to fix hours as convenient and necessary. 

         I am advising you of the difficulty my client is experiencing, and I am trying to be candid about my own.  I am asking you to perhaps return to 10 o'clock and 4:30 with a reasonable time for the lunch break.

         THE CHAIRPERSON:  Thank you, Mr. Christie.  I will discuss that with my colleagues at the break.  I believe this is the first time we have heard that there may be a health problem here and, of course, we will be sensitive to that.

         I am not far removed from the role of counsel as opposed to sitting here.  Both are stressful, but I am very mindful that the day sometimes seems longer to counsel than to the trier of fact.  I can recall one occasion where there was a judge who was in the habit of resuming at 7:30 until 10 o'clock at night, which is enough to cause counsel to lose a lot of weight in the space of a week.  I am not insensitive to the needs of counsel to have time to prepare their case and to the stress involved in a long day.

         We will review our position on that and respond to your concerns.

         MR. CHRISTIE:  Thank you, Mr. Chairman. 

         I have three very brief points to cover with Mr. Klatt, if I may.

         THE CHAIRPERSON:  We had hoped that we had completed that, but they are very brief?

         MR. CHRISTIE:  They are indeed.

         THE CHAIRPERSON:  Before you do that, Mr. Fromm is on his feet.

         MR. FROMM:  Mr. Chairman, I was wondering if it would be possible to have a written copy of your ruling.

         THE CHAIRPERSON:  It is on the record.  I don't have it written in a form that I can distribute.  It is on the record.  If I can get one for you, I will do that.  I would have to get someone to complete it in that form.

RESUMED:  BERNARD KLATT

EXAMINATION-IN-CHIEF, Continued

         MR. CHRISTIE:

         Q.   Mr. Klatt, over the break have you considered any other points you want to observe on the specific evidence?

         A.   Yes, I have.

         Q.   Were there two points that you wanted to bring to light in that regard?

         A.   Yes.

         Q.   Would you refer to the pages, please, that you want us to consider.

         A.   Pages 1421 and 1422, I believe.

         Q.   I think you mentioned to me page 1409.

         A.   Yes, 1409 is the first one.

         Q.   And the line?

         A.   Line 20.

         Q.   There it says:

"The Internet does what it does to route the call."

Could you comment on that, please.

         A.   Apparently this is in reference to accessing a web site.  This goes to the extent of understanding of Mr. Angus of the Internet.  The Internet does not route telephone calls when accessing a web site.  This indicates a misconception or a fundamental confusion regarding the operation of the Internet in this regard.

         Q.   On page 1421 and 1422 you had referred to lines 2 to 16 on both pages.  There Mr. Angus was dealing with a fax machine.  I will just read those lines quickly, and then I will ask you to comment.

"Q.  What does a telephone used as a fax line transmit?  Does it transmit graphics?

A.  It transmits sound and electrical waves in the voice frequency.

Q.  And it communicates them graphically.  Is that right?  Please tell me if that is so.

A.  Graphical communication ‑‑

Q.  I have a fax machine, and it transmits graphically, doesn't it?

         A.     It transmits graphics.  It doesn't transmit graphically; it transmits electrically.

Q.  Yes, I understand that it transmits electrically, but what it transmits, the meaning of what it transmits, is a graphic message.

A.  What goes through is a graphic message, yes.

Q.  So, in that sense, it is not communicating the sense, the meaning, telephonically; it is perhaps transmitting data that is translated into a graphic image at the other end.  Is that not correct?

A.  No.

Q.  Tell me, then:  In transmission of a fax, is it not transmitting a graphic image?

A.  It is transmitting a graphic image telephonically.

Q.  It is transmitting a graphic image telephonically?

A.  Yes.

Q.  By the means of the communication of sound?

A.  Yes.

Q.  The sound is not communicating anything, sir, is it?  It is electronic impulses that create an image through the translation process.

A.  I am sure, sir, you have had the experience of your telephone ringing and you answer and it's a fax machine that has called you by mistake.

Q.  Yes, and I don't get any meaning out of it.

         A.  No, but you do hear a sound.

Q.  You hear a sound, but that sound has no meaning and it does not transmit meaning, does it?

A.  Not to your ear, no.

Q.       According to your definition, then, if a telephone communicates Morse code, you are saying that it would not be communicating telegraphically; it would be communicating telephonically.

A.  In my view, the adverb "telephonically" is derived from telephony which includes, as this definition says, graphics information."

         A.   This section is hard to view, other than a few points to raise.  It goes to the fundamental misunderstanding of the basic electrical nature of telecommunications.  He is insisting that the fax machine communicates graphics telephonically, but according to our dictionary definitions and accepted usage and practice in the industry it would be an incorrect assertion.  He is also attempting to assert that the means of communication is by sound.

         Q.   Does sound transmit the fax?

         A.   No, it does not.  The sound is totally incidental, much like in the case of a modem where it is irrelevant to the communication of the information itself.

         Q.   You have been asked a number of specific questions in relation to parts of the evidence of Mr. Angus.  Does that signify that you agree with the rest of his evidence?

         A.   No, it does not.  You could spend an extensive amount of time rebutting in greater detail errors and misconceptions and inferences that are not based on reality.

         Q.   Does your analysis enable you to comment on the general level of expertise of Mr. Angus that you perceive from the evidence you have analyzed?

         A.   Yes.  In trying to be charitable to Mr. Angus, he no doubt has expertise in some areas of telephone systems but, in terms of the Internet and explanations relating to it, there are significant problems, inaccuracies, errors, misconceptions and statements that do not accord with reality

         MR. CHRISTIE:  Those are my questions.  Please answer questions from other counsel.

         THE CHAIRPERSON:  Mr. Freiman, please.

         MR. FREIMAN:  I think Mr. Fromm has pride of place.

         THE CHAIRPERSON:  I am sorry, do you have any questions, Mr. Fromm?

         MR. FROMM:  I do.

CROSS-EXAMINATION

         MR. FROMM:

         Q.   Mr. Klatt, do you have the transcript of Mr. Angus' testimony there?

         A.   I do.

         THE CHAIRPERSON:  You will remember my admonition on behalf of the Tribunal about not covering repetitive areas here.

         MR. FROMM:  I do, Mr. Chairman.

         THE CHAIRPERSON:  One might conclude that Mr. Christie has, with his usual skill, covered the field quite well.

         MR. FROMM:    Q.  I would like to call your attention to pages 1185 and 1186.  I would like you to begin reading at line 22 on page 1185 down to line 7 on 1186, beginning with Mr. Christie's question.

A.       "Q.  Not to you, though.  How much do

you get paid every day for being here?

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

Q.   Anything for preparation?

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

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

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

         Q.   Mr. Klatt, how much are you being paid to testify in this case?

         A.   I am not being paid to be here or to give testimony.

         Q.   Mr. Klatt, are you familiar with an organization known as Electronic Frontier Canada?

         A.   Yes, I am.

         Q.   Are you familiar with its mission statement?

         A.   Yes, I have been a member of Electronic Frontier Canada, this will be my second year.

         Q.   I am going to show you a copy of the mission statement of Electronic Frontier Canada that has been downloaded from their web site.  I was wondering if you could identify this.

         A.   Yes.  That is their statement of purpose and goals that they are attempting to achieve and accomplish in relation to the Internet and free speech.

         MR. FROMM:  I would like to request that this mission statement of the Electronic Frontier Canada be marked as an exhibit.

         MR. FREIMAN:  The witness has said that he knows about Electronic Frontier and that he is a member.  It evades me what the relevance is.

         THE CHAIRPERSON:  Can you give us that, Mr. Fromm?  Keeping in mind why we are here, I am not sure what the mission statement of Electronic Frontier Canada has to do with this Hearing.  We know that there are issues in this case about free speech as it impacts on section 13.  We will deal with those matters in due course, but I am not sure that this advances anything, that there is an organization called this and that they have a mission statement.

         MR. FROMM:  Mr. Chairman, this is an organization that is made up of Internet Service Providers and people interested in the Internet.  Since that is the medium that this Hearing is focused on, I thought it might be of some relevance to have their mission statement.

         THE CHAIRPERSON:  I don't see it, unless anyone else wants to speak it.

         MR. CHRISTIE:  One thing I would like to say in support of it is that it speaks of clear institutional policies.  At the end of the day, our argument will be that interpreting section 13(1) in a much broader and new way is not very clear law.  It would be impossible to say that it is clear institutional policies that are of assistance, and it might useful to be able to then say that people who are in this line of work and who are interested in this area are really requesting clarity so that there is a clearly defined boundary.  I will be arguing that that is relevant to the free speech issue.

         I don't know that we have any other source for that knowledge.  There are only three short statements, and they are quite succinct in expressing what I would like to say.  At least I can say that, in the context of our society, the people who are dealing with this problem are very anxious to have clarity.  The interpretation being sought by the Commission is going to involve far greater vagueness and confusion and uncertainty.  At least I could point to the fact that people are seeking some legislative certainty so that free speech can be demarcated.  At least we can know where we offend and where we don't offend.

         THE CHAIRPERSON:  Mr. Freiman, please.

         MR. FREIMAN:  I still see little, if any, relevance.  The fact that there are groups who have positions on free speech is of interest, I am sure, to Mr. Klatt and to Mr. Fromm.  Again, it is simply unclear to me how that advances any matter in issue in these proceedings.

         I am not saying that this is harmful in any way.  I just don't see that it is relevant in any way.

         MR. FROMM:  I sought to bring forth witnesses who might be able to shed some light on the social context in which these statements are communicated.  This is certainly part of the social context, being an organization that represents Internet users and service providers.

         THE CHAIRPERSON:  Mr. Fromm, we are ruling against you on this.  We are not going to allow this document in.  Go on to your next question, please.

         MR. FROMM:

         Q.   Mr. Klatt, are you familiar with the Electronic Frontier Canada policy regarding the responsibility ‑‑

         THE CHAIRPERSON:  Go on to your next question.  We are not going to allow the policy in because we consider it irrelevant and we are not going to mark the policy as an exhibit.  Go on to your next question.

         MR. FROMM:

         Q.   Can you indicate what the organization known as Electronic Frontier Canada believes are the responsibilities of Internet Service Providers?

         THE CHAIRPERSON:  That is the same area.  I am asking you to go into a new area, any new area that you have in mind.

         MR. FROMM:

         Q.   Are you aware of any statements made by the Electronic Frontier Canada with regard to efforts to censor the Internet in Canada?

         THE CHAIRPERSON:  Please follow the direction of the Tribunal.

         MR. FROMM:  Is the Electronic Frontier Canada completely verboten?

         THE CHAIRPERSON:  We are not going to allow any further questions about the Electronic Frontier.

         MR. FROMM:

         Q.   Mr. Klatt, I would like to call your attention to Respondent Exhibit R-38 which you made reference to last day.  Do you have a copy there?

         A.   Yes, I do.

         Q.   This is a document called "British Columbia Internet Association".  I wonder if you could refresh our memory as to exactly what the British Columbia Internet Association is.

         A.   It is an association of Internet providers in British Columbia who choose to belong to this organization.

         THE CHAIRPERSON:  Mr. Fromm, we did allow this exhibit in through this witness and responded to the submissions of Mr. Christie in relation to page 2 of 3, paragraph 4 which deals with publication and/or telecommunications.  It was limited to that area of this document.  The rest we did not consider relevant.

         MR. FROMM:  That was page 2?

         THE CHAIRPERSON:  Yes, paragraph 4, "Publication and/or telecommunications."

         MR. FROMM:  I want to call the witness' attention to page 1.

         THE CHAIRPERSON:  Put the question, and we will rule on it.

         MR. FROMM:

         Q.   Are you a member of the BCIA?

         A.   Yes, I am a member and have been since late 1995.

         Q.   So you are aware of their policies?

         A.   Yes, I am.

         Q.   Have you had any role in formulating those policies?

         A.   To some extent.  I have had the opportunity to talk to Dr. David Godfrey, the President of BC Internet Association regarding some of these topics.

         Q.   To your knowledge, has the BCIA taken a position about freedom of expression on the Internet?

         A.   Yes.  In the second paragraph ‑‑

         MR. FREIMAN:  I rise again.  Mr. Fromm, being somewhat new to these proceedings, perhaps does not appreciate the extent of the Tribunal's ruling.

         As I understand it, the policy about freedom of expression by organizations such as Electronic Frontier or the BCIA has not been found to be of any relevance by the Tribunal and therefore should not be the subject matter of questions.

         MR. CHRISTIE:  Let me make one observation.

         In my submission, this being a case of first instance in this field, the Tribunal would be making a serious error to exclude consideration of social context beyond the narrow confines of what the Commission would ask you to consider.

         Social context means social context in which we live, and this is part of it.  In my submission, it is entirely inappropriate to restrict that term to only that which is of interest to the Complainants.  That, in effect, is what will be the result if nothing in this nature is admissible.

         THE CHAIRPERSON:  I doubt that that is a correct statement, Mr. Christie.  All the Tribunal is saying at this point is that we do not consider the BCIA Code of Conduct with respect to freedom of expression relevant in determining the result of this Hearing, according to law.

         Move on to your next question.

         MR. FROMM:

         Q.   Just to refresh our memory, Mr. Klatt, is it correct that you are what is called an ISP or Internet Service Provider?

         A.   I have been an Internet Service Provider from March of 1995 through the end of April 1998.

         Q.   In your role as an Internet Service Provider and on the basis of your previous testimony and as an active member of several Internet associations, are you aware of any attempts to pressure ISPs who attempt to guarantee freedom of expression for their clients, from your own experience?

         A.   Yes.  I have personal experience, plus I am aware of other ISPs and other individuals who are attempting to either harass ISPs or engage in what could be determined as Internet censorship attempts.

         Q.   Could you share with the Tribunal some of the specifics.

         A.   One of the earliest attempts I am aware of is the action of the Simon Wiesenthal Center which involved sending out 1,200 letters to Internet Service Providers across North America advising or requesting or attempt to coerce Internet Service Providers into not allowing specific types of content that they disagreed with to be hosted on web sites.

         THE CHAIRPERSON:  I don't want you to pursue that line any farther.

         MR. CHRISTIE:  I would like to put on the record my submission that it is entirely appropriate to demonstrate that these proceedings are being used for political purposes, and that is the thrust of the evidence.  To exclude that consideration of the social context, to exclude that from consideration as to whether the complaints are in good faith or not or whether this process is being manipulated for political purposes, which is a very fundamental part of our argument, would be to deny consideration of one of the primary and most important things that you should be analyzing, and that is the good faith or otherwise of the Complainants and Intervenants and the weight to be given to their submissions.  That should definitely be qualified by what efforts they have done and used in the past to achieve their political objectives, and whether you should take their submissions seriously or not should depend on whether they are actually involved in endeavouring to manipulate this Tribunal, manipulate this law, to achieve political objectives or not.

         To demonstrate that they are attempting to achieve those same political objectives by other means, by more obvious political means, would certainly be relevant to show that these are not bona fide complaints but merely political complaints.

         THE CHAIRPERSON:  I would suggest to you, Mr. Christie, that my colleagues and I would be offended by any suggestion that we are subject to some manipulation.  We dealt with the issue that you raised at the outset of this Hearing, and you know what our ruling was in that regard, and I should not have to repeat it each time it is raised.

         Go on to your next question, Mr. Fromm.

         MR. FREIMAN:  I rise somewhat reluctantly and paradoxically.  The Tribunal ruling is precisely correct, specifically on the area of irrelevance of motive.

         I have been sitting rather than standing to object because, to be candid, I expect that every ruling of this Tribunal will become the subject matter of a judicial review application in any event.

         THE CHAIRPERSON:  We should not be interested in that, Mr. Freiman.  I don't want to know about that.

         MR. FREIMAN:  I withdraw that.  The reason that I had not risen in that, even in terms of this Tribunal's proceedings, we may be penny wise and pound foolish as we get the verdict every 15 seconds with regard to a ruling.  In some sense, it may be preferable insofar as the witness has personal experience; it may bear on his own credibility to allow him to testify about his own experience and his own actions.  That may reflect positively on his credibility; it may reflect negatively on his credibility.

         MR. CHRISTIE:  I love the double standard of the Commission which is so beautifully ironic.  When it is useful to their purposes, they advise you to accept it; when it is not, they don't.  When you agree with their position, they agree with you.  Then they would like to qualify that by saying:  But, on the other hand, we would like to be able to cross-examine on this area.

         The motive of the witness is somehow relevant and, of course, we avoid the Complainants' motives being questioned by both your ruling and the fact that they never testified.  Your latest ruling is that bona fides is also irrelevant.

         I would submit that it is becoming too obvious that the Commission would like to play both sides of the street, to argue both sides of the issues, and to get the benefit of a ruling both ways.  It is not unusual; we have seen this practice more than once, but we object to it.  We submit that it is something which should not be encouraged and should not be allowed.

         THE CHAIRPERSON:  Please proceed to your next question, Mr. Fromm.

         MR. FROMM:  Mr. Chairman, in trying to organize the questions for Mr. Klatt, I was mindful of comments made on Tuesday about the focus of our particular brief.  I tried to focus on the areas that have to do particularly with freedom of speech.

         Q.   Mr. Klatt, in response to the last question, as I recall it ‑‑

         MR. CHRISTIE:  Excuse me, I want to interrupt and correct one remark that you made, Mr. Chairman, that I implied that you were being manipulated.  I said that the Commission is attempting to manipulate you, and I did not say that you were being political although that is not something that I would like to speak about.

         The point I make is that you implied that I had said that you were politically manipulated.  The attempt is being made.

         THE CHAIRPERSON:  Proceed, Mr. Fromm.

         MR. FROMM:

         Q.   In response to my last question you talked about the experience of other Internet Service Providers.  I would like to direct you to any personal experience you might have had in terms of efforts to intimidate you in terms of the service you provided.  Have you had any such experiences?

         A.   Yes.  We have been approached by Sol Littman.  We were one of the Internet Service Providers that had clients that had material that Mr. Littman seemed to have some concern or objection with.  We were contacted.

         THE CHAIRPERSON:  We have that on the record now.  I would like you to move on to another topic.

         MR. FROMM:  Can I explore what happened next?  He says he was contacted.

         THE CHAIRPERSON:  The fact that some organization associated with any of the interested parties in this matter attempted to influence Mr. Klatt or some other ISP not to publish certain matters is not before us.  It is not an issue that is of relevance to us.  I am asking you to move on to another area.

         MR. FROMM:  Does it not form part of the social context of intimidation which in fact led to the complaint which is before you today?

         THE CHAIRPERSON:  Ms Matheson, please.

         MS MATHESON:  Mr. Chairman, I just stand to put our position on the record.  This is an expert witness, and I agree with the Tribunal's comments that what happened with the Electronic Frontier and its organization is not before us, but I think it is proper to explore the particular bias of the witness who is testifying. 

         I am not sure where Mr. Fromm is going, but ‑‑

         THE CHAIRPERSON:  We heard evidence-in-chief on this topic the day before yesterday in Mr. Christie's questioning.

         MS MATHESON:  Could I ask you to repeat that.  I did not quite hear it.

         THE CHAIRPERSON:  What I was saying is that we heard some evidence in the same area, if I am correct, the day before yesterday when Mr. Christie was examining Mr. Klatt.

         Would you go on to your next question, please.

         MR. FROMM:

         Q.   What was your response to this question?

         A.   It occurred over a period of time, from the summer of 1996 initially to early this year, when a variety of press conferences were held, accusations were made, and attempts to have the Attorney General of British Columbia take action based on false information that was provided to the Attorney General regarding our business.  There was intimidation of suppliers regarding our business.  There was economic loss to our business.  The original company that hosted our equipment received intimidation which caused them to ask us to vacate the premises with our equipment.  The subsequent business that agreed to house our equipment also was subject to implied threats of commercial blackmail. 

         We attempted to hold a public meeting to present our views to the public.  The CJC takes credit on their web page for influencing the Town of Oliver to cancel that meeting facility.

         Our current Internet provider has received implied threats or what they perceive as intimidation from the CJC which has caused them to interfere with our connectivity and business relating to the Internet.

         Q.   I would just like to go back for a second.  Torontonians are said to have a very self-centred view of themselves, and the hinterland in their opinion begins at Highway 427.  Could you tell us a bit about the town of Oliver.  How big is it?

         A.   It is not particularly large.  It is close to 5,000 in population.

         Q.   After the intimidation attempts began and there was pressure on the Town Council and pressure on your local newspaper, what had become of your status in that community, in this small town of Oliver?

         A.   Through various attempts that were made, a petition was circulated throughout the town.

         Q.   Who initiated this petition?

         A.   I don't know the specific name, but it was circulated on the letterhead of the Town of Oliver.  They claimed to have gathered 1,200 signatures and some say 900, but it was a significant number of signatures asking the Attorney General to investigate whatever this petition said. 

         We lost contracts with the School Board.  We were requested not to continue providing instructional services at the college regarding Internet courses.

         Q.   How long have you lived in that community?

         A.   I have lived there approximately 30 years.

         Q.   As the pressure escalated and the petition was circulated, did you feel that your position as an ISP was understood by your fellow citizens?

         A.   No, it was not, because the local newspaper publisher seemed to take it on as a personal crusade of his to give us front page headlines in a negative light whenever possible.

         Q.   Did you try to do anything to communicate to people who were not on the Internet in your community what your position was an ISP, as you saw it?

         A.   Yes.  We were interviewed by various news media organizations, TV and various radio stations, but they did not have much coverage locally.  That was the motivation to hold a local public meeting so that we could express our views regarding our role as Internet Service Providers in relation to the Internet.

         Q.   Who was the intended audience of this public meeting?

         A.   The local citizens of the surrounding area of the town of Oliver.

         Q.   After the announcements of this public meeting had become known, what was your experience?

         A.   There was a variety of activity that took place to attempt to coerce the Town Council into revoking the permission they had given us to use the meeting room.  There were threats or statements made to the effect that there was going to be violence.  There was no basis in fact that I was ever able to determine.  We talked to the local RCMP, and they told me that they had no expectation of violence.

         The opportunity to use the meeting room was revoked the day before it was scheduled, after considerable expense had been incurred in terms of advertising in radio and print.

         Q.   Who revoked the permission to hold the meeting?

         A.   The Town Council held what was referred to as an emergency meeting on Friday morning.  The meeting was scheduled for Saturday evening.  On Friday morning they held an emergency Town Council meeting and then personally drove out to my place of business and delivered me a one-page letter stating that we no longer had the right to use the meeting room we had previously reserved.

         Q.   The Mayor and Council made this decision.  Did anybody else claim responsibility for having changed the Town Council's mind on this?

         A.   Yes.  As I mentioned, the CJC on their web page implies that they take credit for accomplishing that result.

         Q.   As of April of this year you were no longer an Internet Service Provider in British Columbia; is that correct?

         A.   Yes, that is t rue.

         Q.   But you indicate that you continue to run into problems.  What sort of problems?

         A.   The company that bought out the portion of the Internet business that we sold, a company in Penticton, have our server still active although it is not used in hosting web sites.  It was our own corporate web server.  The fact that it was still visible on the Internet seemed to annoy people in certain organizations in Toronto.  The Internet company in Penticton received phone calls which resulted in the disconnection or shutdown or interference with our Internet access to our current provider in Penticton.

         Q.   Do I understand correctly that this was in spite of the fact that you are no longer an Internet Service Provider?

         A.   That is correct.

         Q.   You are no longer providing service to any organization, political or otherwise?

         A.   Other than our own business content, that is correct.

         MR. FROMM:  Those are my questions.

         THE CHAIRPERSON:  Thank you, Mr. Fromm.

         MR. FREIMAN:  I wonder if I might ask the indulgence of the Tribunal to have Mr. Angus sit at the counsel table to assist me with references.

         MR. CHRISTIE:  I have no objection.

CROSS-EXAMINATION

         MR. FREIMAN:

         Q.   Mr. Klatt, you indicated that, unlike Mr. Angus, you are not being paid at all for your testimony today.  Is that right?

         A.   True.

         Q.   Where did you stay last night?

         A.   In Toronto.

         Q.   Where?

         A.   At a friend's place.

         Q.   Who is the friend?

         A.   Mr. Zundel.

         Q.   How long has he been your friend?

         A.   Since I first met him.

         Q.   When was that?

         A.   I can't remember the date.

         Q.   A week ago, two weeks ago, a month ago, a year ago, two years ago?

         A.   It would have been probably sometime before the initial instigation of these hearings, to my recollection.

         Q.   Sometime before 1996?

         A.   I don't know.

         Q.   Since then have you been in contact on a relatively regular basis with your friend Mr. Zundel?

         A.   In relation to this case, yes.

         Q.   And in relation to the shared areas of interest that you have?

         A.   I am not sure what you are referring to.

         Q.   Do you share areas of interest with Mr. Zundel?

         A.   In terms of freedom of expression on the Internet, yes.

         Q.   You communicate with him by e-mail from time to time?

         A.   No, I don't.

         Q.   You have stayed at his place before?

         A.   Yes.

         Q.   And he has visited your place in British Columbia?

         A.   Yes.

         Q.   Before we start, I want to get some idea of the scope of the expertise that you claim in the areas in which you have testified.  As I understand it, the basis for your claim of expertise is two-fold.

         First of all, it was your career before you formed Fairview Technologies.  Right?

         A.   That would be part of it.

         Q.   That was your career in the various companies that you read out to us at some length a few days ago.  Am I right that that basically consists of computer servicing and troubleshooting, whether computers or computer networks?

         A.   That would be a better characterization of the work I did for the first few years when I was at Digital Equipment, but that is not the extent of my experience with any of the three companies.

         Q.   That is the common thread that runs through all of your employment before you founded your present company, is it not?

         A.   If you wish to characterize it that way.

         Q.   You have characterized it that way, haven't you?

         A.   I don't think so.

         Q.   We have agreed that that does characterize what you did for Digital Equipment.

         A.   In part.

         Q.   In part.  In dealing with General Electric - Calma, you state that you worked in the research and development of high-speed broadband coaxial data networking of CAD/CAM systems and you installed and troubleshooted computer systems, data and network installations.  That is correct, is it not?

         A.   That is a partial description of what I did there, yes.

         Q.   That is your description.

         A.   I didn't describe everything I did.

         Q.   For Philips-Signetics, you say you designed and managed installation of corporate campus fibre optic data network, coordinated over 200 network systems consisting of mainframes, minicomputers, work stations and PCs, and you were responsible for troubleshooting and maintaining network services. 

         I am not being inaccurate about that, am I?

         A.   What is listed there is part of what I did, yes.

         Q.   So far as the Internet is concerned, even in the early days from 1980 onward, you were a consumer or a user of the Internet.  You would use it in order to do research or to exchange communications via e-mail.

         A.   E-mail was not the only use for the Internet at that time.

         Q.   You also accessed information on the Internet in matters of interest to you.

         A.   Certainly.

         Q.   You did not construct Internet systems?

         A.   No, they were multimillion dollar ‑‑

         Q.   In fact, you are not an engineer?

         A.   I don't have a formal degree or title as engineer, no.

         THE CHAIRPERSON:  Excuse me for interrupting.  Did you receive a certificate from the British Columbia Institute of Technology?

         THE WITNESS:  Yes.  It is a two-year program.  It is not a four-year program that results in a formal engineering degree.

         MR. FREIMAN:

         Q.   In terms of your expertise since founding Fairview Technology Centre was in a number of businesses.  One was simply the installation, servicing and advising customers with regard to personal computers and installation of networks.

         A.   Yes, that constituted part of our business.

         Q.   Since 1995 you were also an Internet Service Provider or ISP?

         A.   Yes.

         Q.   And that has been one of your major bases for familiarity with the Internet?

         A.   Yes.

         Q.   In that guise, we could generally divide the services you provided into three areas.  You provided ‑‑

         MR. CHRISTIE:  I object to the choice of the word "guise" in the question.  I think my friend should avoid being tricky.  The word "guise" implies deception, and I don't think it is fair to put it to the witness that he accepted or adopted any guise.

         MR. FREIMAN:

         Q.   In your role ‑‑ which I think Mr. Christie in going through the numerous dictionaries to which he has apparent access will find is a definition of "guise." 

         In your role as Internet Service Provider, I think we can identify three different roles.  The first, you will agree with me, was to provide e-mail services to business and residential clients.

         A.   That is certainly a common function of an Internet Service Provider.

         Q.   And it is one that you fulfilled?

         A.   Yes, we did.

         Q.   How would that come about?  How would you come to provide e-mail services for a particular individual or business?

         A.   The individual requesting to use our services would establish an account with us, and they would either choose or be given an e-mail address. 

         Q.   How would that individual or group come to know about you and the availability of these services?

         A.   In a variety of means or methods.

         Q.   Tell me some of them.

         A.   We were listed on a number of the Internet Service Provider lists that are available on the Internet.  We were listed in the BC Internet Association list of providers in British Columbia.  We did some advertising.

         Q.   Where would the advertising have been?

         A.   In print form in Oliver and Osoyoos and by word of mouth.  We were active in various discussion groups and e-mail discussion groups on the Internet.

         Q.   Did you advertise in France?

         A.   No.

         Q.   Do you know anybody in France?

         A.   Not that I know of.

         Q.   How would people in France know about you?

         A.   By any of the above methods.

         Q.   By reading the Osoyoos press?

         A.   If somebody sent it to them.

         Q.   So we have e-mail.  The second is web site hosting.  As I understand it, that means that you provided room on your server for people who wished to have web sites.

         A.   That would be essentially correct.

         Q.   Again, people would know about that service in the same way as they knew about e-mail service?

         A.   They could assume that, if we had the ability to provide e-mail service, it was likely that we would also be able to provide web service.

         Q.   And your advertising was the same?

         A.   I don't recall the advertising making specific mention of web hosting services, but it may have.

         Q.   Without any specific recollection of advertising web hosting services, do you have any idea how people would know to come to you if they wanted to place a web site on your server?

         A.   Like I mentioned, they could contact us through our listing in the various Internet Service Provider listings that are on the Internet, through word of mouth, through discussion on various e-mail lists, possibly through IRC.

         Q.   What is IRC?

         A.   Internet Relay Chat discussion.

         Q.   In addition to those two services, you also provided as, I take it, a significant part of your business dial-up access to the network?

         A.   Yes, we did have ability for people to connect in.

         Q.   Aside from those areas that you say give you expertise in the Internet and its ramifications, do you keep up with developments in the Internet?

         A.   I try to.

         Q.   Can you tell me what publications or what sources of information you consult?

         A.   One of them would be Internet World; our participation in the Internet trade shows such as Internet World in San José; Comdex; participation in the BC Internet Association's seminars and meetings; my participation in the Internet Service Provider-related discussion e-mail lists that I subscribe to.

         Q.   Would you agree with me that, if you are indeed an expert in the Internet, you ought to know the standard publications and reference sources?

         A.   It would be hard to know all of them.

         Q.   For instance, are you familiar with the Cook report?

         A.   I know of it.

         Q.   What is that?  Tell me something about it.

         A.   I know of it.

         Q.   What do you know of it?

         A.   It is a fairly expensive report beyond the financial means of our company to subscribe to.  I have seen reference to it.

         Q.   It is an authoritative source, but you simply cannot afford access to it.

         A.   I would not know if it is considered authoritative.  I believe it is largely the opinions of the writer.

         Q.   You also say that you are familiar with Internet telephony.  Is that true?

         A.   I have used Internet telephony products.

         Q.   You have done more than just give evidence about your use of Internet telephony products.  You have spoken to us extensively over the last few days about what Internet telephony is, haven't you?

         A.   Do you consider that an extensive exposition on that topic?

         Q.   I heard the words almost as often as you say we heard the word "telephone" in Mr. Angus' evidence.  You did refer to Internet telephony on more than one occasion, didn't you?

         A.   True.

         Q.   And about its characteristics?

         A.   Yes.

         Q.   And how it compares with standard telephony?

         A.   In what way?

         Q.   You told us about Internet ‑‑ I will retract that.  Let me get to the point.

         Do you do any reading on Internet telephony?

         A.   I subscribe to the VON e-mail list that Jeff Pulver distributes.

         Q.   Are you familiar with a publication called "Computer Telephony?"

         A.   Is that a hard copy print publication?

         Q.   Yes.

         A.   I don't believe I get that.

         Q.   Maybe this will refresh your memory.  Have you ever seen this before?

         A.   Not this issue.

         Q.   Have you ever seen any issues of it before?

         A.   Not that I would say.

         Q.   Would you agree with me that it appears to be a publication devoted to various applications of telephony involving computers?

         A.   It describes itself as a magazine for computer and telephone integration.

         Q.   Do you think that is relevant to Internet telephony?

         A.   Possibly.

         Q.   Would you look at the Table of Contents.  Do you see any articles about Internet telephony?

         A.   The cover mentions IP telephony gateway, so this particular issue appears to have at least one article on that topic.

         Q.   In fact, it has two articles on the topic, if you look at the Table of Contents.  It is difficult because you can't click on a hard copy to get the Table of Contents.  Maybe I can help you.

         I am showing you page 4.  You will see there is a heading called "IP Telephony."  Just confirm to me that it does appear to deal with IP telephony in two articles.

         A.   There is a reference to an executive summary of IP telephony.

         Q.   Yes, and then an article about gateways.

         A.   It looks like a comparison between four IP telephony gateway products.

         Q.   Would you look at page 6, please.  Can you tell me who the editor of this magazine is?

         A.   A person by the name of Rick Lumen.

         Q.   And the editor-in-chief?

         A.   Our good friend Harry Newton.

         Q.   Have you ever heard of him before?

         A.   In the context of his Telecom Dictionary, yes.

         Q.   You have heard about the Telecom Dictionary, but you were not aware that he also publishes a magazine about computer telephony?

         A.   No, I wasn't.

         Q.   I also noticed in your discussion of Internet, we heard mainly about the United States.  You will agree with me?

         Let me ask you:  Do you also know anything about the Internet in Canada?

         A.   Certainly.

         Q.   Do you know what CaNet is?

         A.   That was the network that was set up to provide high-speed Internet connections in Canada.

         MR. CHRISTIE:  Is it C-a-Net?

         MR. FREIMAN:  CaNet, one word, or there may be an asterisk between the "a" and the "N."

         Q.   Do you know what Ca2Net was or is?

         A.   I don't have specific details on that.

         Q.   And Ca3Net?

         A.   I don't know what that involves.

         Q.   What about an organization with the acronym CANARIE?  Do you know who they are?

         A.   I have heard of it, but I can't remember what all the letters stand for.

         Q.   You have heard of the organization.  What does it do?

         A.   I can't give the complete definition of what it does, but it is my understanding that it is a group that is involved with the government to encourage the use of the Internet in relation to industry and research across Canada.

         Q.   Is that an authoritative group? 

         A.   I am sure there are knowledgeable people in it.

         Q.   Do you know anybody who is associated with it?

         A.   Personally, no.

         Q.   Do you know any names?

         A.   Personally, no I don't.

         Q.   You spent some time with Mr. Christie dealing with definitions from a dictionary.  I have to tell you, Mr. Klatt, that I formed the impression that you were not necessarily familiar ‑‑

         MR. CHRISTIE:  I object to my friend expressing any question in cross-examination with which he prefaces the question with the remark "I formed the impression" or any of his own judgments or opinions.  I will object to those as being improper cross-examination.  It is not my friend's place to express his views.

         THE CHAIRPERSON:  It is preamble to a question, I assume, in relation to his understanding of certain evidence.  I took it in that way and I assume ‑‑

         MR. FREIMAN:  I intended it in exactly that way and nothing further or more insidious.

         Q.   Am I correct, sir, that you were not necessarily familiar with all of the technical dictionaries that Mr. Christie referred you to?  Am I right or am I wrong?

         A.   In what context or aspect?

         Q.   Did you know about them?  Did you know what they were?

         MR. CHRISTIE:  About what?

         MR. FREIMAN:

         Q.   Did you know about the existence of those volumes?

         MR. CHRISTIE:  I object to the question.  What volumes is he talking about?  Give the witness a chance to know.

         THE CHAIRPERSON:  I assume that you will become more specific in terms of what you are speaking about.

         MR. FREIMAN:  Yes.

         Q.   Did you know about all the volumes that Mr. Christie put to you?

         A.   I don't personally own them.

         Q.   Had you seen them before?

         A.   Some.

         Q.   Fibre Optics and Lightwave Communications Standard Dictionary; had you seen that before Mr. Christie asked you to look at it?

         A.   I believe so.

         Q.   Dictionary of Data Processing (1988); had you seen that before Mr. Christie ‑‑ you can have a look at the document, if you wish.  Dictionary of Data Processing; had you seen that before you talked about it?

         A.   Not that one, no.

         Q.   Communications Standard Dictionary (1983) at page 12.  Had you seen that before Mr. Christie referred you to it?

         A.   Not this specific page, no.

         Q.   This volume?

         A.   Possibly.  I have consulted in the course of my work over the years a large number of reference materials.

         Q.   So you may have seen this before, but you don't have a specific recollection of it.

         A.   True.

         Q.   Dictionary of Computers, Data Processing and Telecommunications (1984) at page 19 by Jerry M. Rosenberg, Ph.D.  Had you seen that before Mr. Christie referred you to it?

         A.   It is possible, but I can't say for sure if I have or not.

         Q.   You don't recall whether you have seen that one either.

         The Computer Glossary we know you didn't see because you told Mr. Christie you didn't see it.  Correct?

         A.   True.

         Q.   Newton's Telecom Dictionary you had seen, but you don't trust.

         A.   It is interesting.

         Q.   The fact that it is the number one selling telecommunications dictionary is of no special relevance to you,

         MR. CHRISTIE:  Is that question placed as a statement of fact?  My friend is positing this question that it is the number one best-selling dictionary.  I have not heard any expert evidence on that point.

         THE CHAIRPERSON:  I assume he is putting it as a proposition to the witness.

         MR. CHRISTIE:  It didn't sound like a proposition of a hypothetical nature or a question.

         MR. FREIMAN:

         Q.   Mr. Klatt, do you accept that it is the number one selling telecommunications dictionary?

         A.   Not from personal knowledge.

         Q.   Do you have any reason to believe that what is stated on the cover of this publication, "#1 selling Telecommunications Dictionary" is incorrect?

         A.   There are all kinds of ways of characterizing whether or not a particular publication would be best-selling.

         Q.   It says "#1 selling Telecommunications Dictionary."  Do you have any basis to believe that that is not correct, on any definition of the