Toronto, Ontario

‑‑- Upon resuming on Tuesday, December 15, 1998

    at 10:10 a.m.

         THE CHAIRPERSON:  Good morning.  We will deal with the motions before us.

         At the conclusion of the last Hearing week the Tribunal reserved its decision on two motions brought by the Respondent, the first with regard to the resignation of Member Jain and the impact of the legislative amendments to the Canadian Human Rights Act, now Canadian Human Rights Act, Statutes of Canada, 1998, Chapter 9.  The second sought to qualify Mark Weber as an expert witness.

         Turning first to the effect of Member Jain's resignation, Mr. Christie on behalf of the Respondent and supported by the Canadian Association for Free Expression Inc. submitted that pursuant to section 49(2) of the Act as amended a two-member tribunal is no longer possible.  He did not argue that Member Jain's resignation otherwise resulted in a loss of jurisdiction.  He simply submitted that the amendments currently contemplate panels of a single member or three members, but not two.

         In support of his argument Mr. Christie relied on the appointment of the remaining Members of this Tribunal Panel, Chair Pensa and Member Devins, to the newly-established Canadian Human Rights Tribunal created under the amended Act.  It was submitted that, by virtue of being appointed to the new Tribunal, the appointment provisions set out in the new Act apply to these proceedings.  It was further submitted that, since the President of the Tribunal originally concluded that this Hearing warranted three Members, it could not now be brought into compliance with the amended requirements by reducing this Panel to a sole Member.

         The Commission, supported by both the Complainants and the remaining Intervenors, maintained that the amended Act simply does not apply.  It was argued that the appointment of the Panel was a jurisdictional matter and that, therefore, the amendments were not to be applied retrospectively.

         As for the appointment of the current Members of this Panel for the Canadian Human Rights Tribunal, it was submitted that that merely establishes eligibility for appointment to future Panels and does not alter the Members' status at this Hearing.

         In reply, Mr. Christie maintained that the appointment provisions were procedural only and, therefore, were to be applied retroactively.

         The essence of Mr. Christie's argument is that, once we were appointed as Members under the amended Act, the amended provisions governing the appointment of a Panel must apply.  In our view, the foundation of the Respondent's submission collapses two distinct "appointment" procedures.

         Under the applicable legislative framework for both the former and the current Act, there are two separate appointments which must be made before a Member or Members can hear a complaint.  The first essential appointment is made by the Governor in Council establishing a list of individuals who make up the Tribunal (section 48.1 of the Act).

         From those duly appointed to the roster, the President of the Tribunal then has a statutory duty to assign a Member or Members to an individual Panel to inquire into a specific complaint (section 49.1(2) of the Act.

         These are two discrete appointment schemes, with the former only making a Member eligible for the latter. 

         All of the Members originally appointed to hear this matter had previously been appointed to the Human Rights Tribunal.  On November 29, 1996 we were appointed by the President to inquire into the complaint now before us.

         In our view, the subsequent appointment of two of the Panel Members to the newly-created Human Rights Tribunal does not in any way alter the character of our previous appointment to this Panel.  It merely allows the President to appoint us to other cases after June 30, 1998.  Nor we do accept the submission that the assignment of Members to inquire into a complaint is procedural so that section 49(2) should be applied retrospectively.

         We note that the Respondent himself asserted that failure to comply with the requirements of the appointment procedures resulted in a loss of jurisdiction and could not be cured.  If we were to accept the Respondent's position, we would be in the anomalous position of retroactively applying selection criteria which could not have been considered, yet which would vitiate otherwise legal proceedings.

         There is no dispute that the President of the Tribunal could have chosen under the old assignment provisions to appoint only two Members to this Panel. 

         The necessary implication of the Respondent's argument is that a Panel, although legally constituted when originally established, would subsequently lose jurisdiction and would not be capable of being cured.  In our view, such an interpretation is contrary to both common sense and the legislative intent.

         Section 33(3) of the amended Act provides as follows:

         "The members of any Human Rights Tribunal appointed under the Canadian Human Rights Act before the commencement day have jurisdiction with respect to any inquiry into the complaint in respect of which the Human Rights Tribunal was appointed."

         This transition provision is unambiguous.  Panels appointed prior to the enactment of the amendments are meant to continue as previously constituted.  We see nothing in principle which would alter that intent by virtue of a change in composition resulting from the resignation of a Member.  Indeed, the Respondent did not argue that the resignation per se resulted in a loss of jurisdiction.  It was only submitted that a two-Member Panel could not survive the June 30, 1998 amendments to the Act.

         Finally, in our view, there is no prejudice to the Respondent in continuing with two Members.  It was argued that the Respondent was entitled to the benefit of the expertise of three Members and that he should not be put at the risk of a deadlocked decision by the Panel.

         Bedford Discount Meat & Grocery v. Nova Scotia Minister of Finance, 1933 Nova Scotia Journal No. 356, a decision of the Nova Scotia Court of Appeal, was cited as authority for the submission.  We do not find this case to be particularly helpful.  It merely states the obvious that, where there is uncertainty as to the decision rendered by an administrative agency, the matter is to be remitted for a clear decision on the merits.  It does not stand for the proposition that two-Member Panels cannot stand.

         Having regard to the possibility that as the two remaining Members we may not agree in our ultimate conclusion, we note that the complaint may well fail if there is not a unanimous decision.  In any event, this is a purely hypothetical problem which should not deprive us of jurisdiction at this stage in the proceedings.

         Other tribunal panels have considered parallel arguments and have elected to proceed in the face of a similar resignation.  (See interim decision May 21, 1997 in Peter and Trudy Jacobs and Canadian Human Rights Commission v. Mohawk Council of Kahnawake.  The Tribunal ruling is dated December 16, 1996 in John Mills and Canadian Human Rights Commission v. VIA Rail Inc.

         We do not consider the amendments to the Act to be a bar to continuing with two Members nor have we been persuaded that we have otherwise lost jurisdiction as a result of Member Jain's resignation.

         Accordingly, we dismiss the motion.

         The Respondent's second motion has to do with Mark Weber and an application to qualify him as an expert witness in a wide-ranging capacity.

         He is tendered as an expert in Holocaust history and revisionism and the historical relationship between Jews and Germans or non-Jews in modern times, as a historian who can contest the opinions provided by Dr. Schweitzer and, generally, as someone who can provide an expert opinion on the social and historiographic context of Holocaust revisionism as expressed in the material found on the Zundelsite.

         We heard more than two days of evidence from this witness on his qualifications while he was subjected to extended examination-in-chief and cross-examination and redirect examination.  Ultimately, the qualification of this witness was the subject of strenuous argument.

         The Commission, supported by the Complainants and all of the Intervenors save Mr. Fromm, vigorously opposed the acceptance of this witness as an expert.  In their view, he did not possess sufficient academic qualifications, and his publications and indeed, it was argued, his entire area of expertise have been rejected by his academic peers.

         Furthermore, it was submitted that he has demonstrated through the misleading nature of his published articles that he is inherently unreliable.  In any event, it was argued that the proposed evidence of this witness was not relevant to the issues before the Tribunal.

         We have given these arguments careful consideration.  Although we have grave reservations as to the academic qualifications and scholarly integrity of this witness, we are prepared to accept him as an expert in Holocaust revisionism as he and others have defined that field.  We would, however, allow this evidence only for the very limited purpose of establishing the context in which the Holocaust revisionist community operates.

         We do not accept Mr. Weber as an expert sociologist or as a historian beyond the field of Holocaust revisionism. 

         We perceive his expertise to be quite limited and would expect the evidence to be very focused.  We would remind the parties that our May 25, 1997 ruling on the relevance of the truth of the material found in the Zundelsite is not an issue properly before us, and we will not entertain evidence in this regard.

         In arriving at our decision, we have considered the position of this historical discipline which is well outside the mainstream of academic acceptance and that, as a result, many of those who study or who are experts in the field of Holocaust revisionism will not likely possess traditional academic qualifications.

         We are also mindful that this is the third expert witness that the Respondent has tendered in this area and that the first two were not deemed by us to qualify as expert witnesses.  These witnesses have all been called to give evidence that the Respondent has suggested is critical to his response to the complaints before us.

         In all the circumstances of this case, we are inclined to allow this evidence to be led for the very narrow purpose which we have set out subject, of course, to argument as to the weight to be given to such evidence.

         Where do we go from here?  Mr. Christie, are you calling another witness?

         MR. CHRISTIE:  I had suggested that we might deal with the motion regarding the reasonable apprehension of bias arising out of the appointment procedures of the new Tribunal.  That was something we were going to discuss on Wednesday, December 9, or maybe the 10th.

         THE CHAIRPERSON:  Are counsel ready to deal with the motion?

         We will hear your argument on the motion.

ARGUMENT ON BEHALF OF THE RESPONDENT

         MR. CHRISTIE:  This motion arises out of the provisions of section 48.1(1) of the Canadian Human Rights Act which establishes as of June 30, 1998 a new Tribunal, namely the Canadian Human Rights Tribunal.

         Section 48.1(2) of the Act provides that persons appointed as members of the Tribunal must have experience, expertise, and interest in and sensitivity to human rights.

         Our position is that Chair Pensa and the associate Ms Devins were appointed by Order in Council to the Canadian Human Rights Tribunal on June 30, 1998 and that the applications of the principles that are required for that appointment, by necessary implication, mean that the Chair and Ms Devins are persons who have experience, expertise, interest in and sensitivity to human rights. 

         I have read the material filed by the various Intervenors and the Commission, and it is clear that they think that it is ridiculous to think that anyone with those qualifications would, prima facie, not be entitled to sit on the Human Rights Tribunal.

         I have tried to find other examples of administrative tribunals or bodies that are created for adjudicative purposes where the conditions of appointment are experience, expertise, interest in and sensitivity to the very thing being inquired into.  I have been able to find none.  The reason, I think, that one cannot find any is that it would be obviously an indication of a predisposition toward one side of the argument in a case involving the issue that is involved here or in any tribunal.

         For example, if it was an administrative tribunal such as the Discipline Committee of the Law Society and it was said, for instance, that members appointed to the Discipline Committee must have experience, expertise, interest in and sensitivity to lawyers' rights, it would be clearly the case that one side of the argument is to be treated with greater sensitivity, interest and expertise than the other.

         This is equally true, for instance, if one had an inquiry into the Transport Safety Board with sensitivities to pilots' rights or any issue where you have on the one hand a body such as is the case here.  The Canadian Human Rights Commission represents human rights. 

         In this context, it is clear that human rights can conflict with Charter rights.  Charter rights are individual rights; for human rights you have to be a member of a race, religion, ethnic origin, sexual orientation or some discrete group which has special status under the Act to be protected.  Such groups are defined in the Act and given a specific identity based upon either a racial characteristic, a religious characteristic, a sexual characteristic or physical or mental disability or marital status.

         THE CHAIRPERSON:  How can that provision be read as overriding the individual rights enshrined in the Charter?

         MR. CHRISTIE:  Sir, it is this that makes it override.  There has to be sensitivity to human rights.  There is no required sensitivity to Charter rights.  There is no required expertise in Charter rights.  There is no required interest in Charter rights and no required experience in Charter rights.  But there is a required experience, expertise, interest in and sensitivity to human rights.

         MEMBER DEVINS:  Mr. Christie, isn't that simply the subject matter of human rights issues as opposed to a sensitivity or predisposition to one particular right or other?

         MR. CHRISTIE:  The definition of "human rights" is set out in the Human Rights Act.  In this context, it is section 13(1) which involves sensitivity to groups identified according to their human rights.  Human rights, as I say, are quite contradictory, in essence, to Charter rights.

         The only requirement for a person to qualify for rights under section 2(b) is that they be a person.  To qualify for rights under section 13(1) you have to be a member of a discrete group.  In other words, your qualifications for human rights are collectivist qualifications.  It is because you are part of a collective defined by the legislation that you have these rights.  Otherwise, you don't qualify.

         If I were simply to have a complainant objecting to denial of their free expression rights or their equality rights under the Charter, they would not be here.  They would not have a right to be here.  They would not have a prima facie case; they would not get this far.

         The Human Rights Commission has made an investigation and done all that is required under the Act and determined that there has been a breach in their view of human rights, section 13(1), being the criterion of a collectivist definition.  It is a definition based on characteristics identified as group characteristics.

         THE CHAIRPERSON:  The interface between human rights legislation and the Charter is a legal issue, is it not?  We don't have to say in any piece of legislation that it is subject to the  Charter.  The law with respect to the Charter operates as part of the Constitution.  You don't have to, in every piece of legislation, say, "Oh, but this is all subject to the Charter."  It follows by operation of law.

         MR. CHRISTIE:  It does; I agree.

         If it were the case that persons appointed as members of the Tribunal must have experience in law, I would have no objection, or expertise in law or interest in law or sensitivity to law.  But they have all those characteristics in relation to a particular kind of law and a particular kind of right.

         I am not objecting or saying in any way that Charter rights don't apply.  I am saying that, indeed, the very reason that this argument, at least to my mind, is persuasive is that Charter rights do apply and there is a balancing requirement that eventually will have to take place if my arguments have some merit in relation to section 2(b), for instance.

         THE CHAIRPERSON:  Obviously, a balance is struck.

         MR. CHRISTIE:  In any situation of balance it is totally inappropriate to have the decider of fact appointed under a criterion whereby their experience, expertise, interest and sensitivity is to one side of the balance.  It is a ridiculous provision.  It was a mistaken provision.

         THE CHAIRPERSON:  Maybe it is superfluous.

         MR. CHRISTIE:  Unfortunately, we can't know that.  It might very well be superfluous.

         THE CHAIRPERSON:  As a matter of interpretation, it might be superfluous; I don't know.

         MR. CHRISTIE:  We are in the unfortunate position of not being aware that it is superfluous.  We are aware that it is legislation and a criterion for appointment.  It is not necessarily an indication of an actual bias; we don't know that.  We don't know anything about the appointment process, as to why it is made or who is selected or how anyone is selected.

         When we are told in the legislation itself that, as a criterion of appointment, the member must have experience in these particular areas in relation to the specific right of human rights, we are taking the position that that is in contrast to and in conflict with and has to be balanced with Charter rights under the Charter. 

         Unfortunately, these drafters, it seems to me, realized for the first time that the Human Rights Tribunal was to be cut free from the Human  Rights Commission.  I realize that you have dealt with the Bell case and all that, but the fact of the matter is that they have written this legislation in response to that because they don't want the problem to continue.  Much as we were assured that it would all be resolved by the Court of Appeal by now, I don't know that it has, but be that as it may.

         The drafters decided:  Now that the Tribunal is no longer under the Commission's control, we have to have something that makes them uniquely sensitive.  It was a foolish move to draft it in such a way.  The connection is now no longer covert; it is now overt.  They are not satisfied with trusting you just to apply the law and be objective, as you ought to be; they want to make sure that you have a specific sensitivity, so they draft it right in the law.

         MEMBER DEVINS:  Is it the fact that it is required by the statute that creates the institutional bias or is it simply the presence of those features?  It is not uncommon in administrative tribunals; in fact, panel members or adjudicators are chosen because of their familiarity or expertise in the area.  That was the whole reason for administrative tribunals in the first place.

         In this case, is it a fact that it has been prescribed in the legislation that creates the problem?

         MR. CHRISTIE:  We have always known, or perhaps suspected, that administrative tribunal members are appointed because they have a connection

‑‑ at least, from our perspective it looks like they have a connection ‑‑ and long-standing sympathy with the idea of human rights.  That is fine.  We have no way of proving or disproving that.  We have to live with our own paranoid suspicions in that regard.

         The fact of the matter is that, when they write it right in the legislation, we are not guessing any more.  It is true, for example, that members of the Transport Safety Board are often people in the aeronautics industry.  They have had long-standing experience, some as pilots, some as airline operators.  I know many who were appointed because they had experience in the north, and accidents happen in the north.  Of course, it is necessary for administrative tribunals to have experience, but they can have a diversity of experience.

         At the issue of administration of this Act from a diversity of perspective ‑‑ for instance, that is why they have lay members of the Benchers.  They don't just want a bunch of lawyers deciding on whether lawyers did right or wrong.  At least now there is more and more trend, I gather, at least in British Columbia that I know of, to have lay members appointed as Benchers.

         THE CHAIRPERSON:  I suspect that in that very Act, as I suspect there is in a legion of other neighbouring Acts, that the tribunal or the administrative body has to direct its mind to the public interest.  Would your argument not apply there as well?  If they were to direct their mind to the public interest, it is contrary to the Charter which is personal to individuals.  Isn't there the same contradiction or dichotomy that you seek to put on this particular legislation?

         MR. CHRISTIE:  If I understand that position, sir, it is that the public interest would be contrary to Charter interest.  I don't see that as a dichotomy.  The Charter interest, after all, is part of the public interest.  Public interest is broad enough to include the Charter rights.  Not only are we members of groups, such as the Law Society, transport community or whatever; we are also citizens.  The public interest can encompass the subject of Charter rights.

         THE CHAIRPERSON:  Human rights is also a public policy and would not be contradictory to Charter rights.

         MR. CHRISTIE:  It is in this respect, that Charter rights are individual and human rights are collective.  It is only the respondent in any human rights case who will be in the position of relying on the Charter of Rights inherently.  The human rights legislation, with its collectivist definition, is seeking to, and frequently does, supersede the Charter and the individual right.

         They are in conflict.  I think many times the Supreme Court has seen the contradiction between individual rights under the Charter and collective rights under the Human Rights Act, and the dichotomy has been resolved, for instance in the Taylor case, in favour of collective rights.

         MEMBER DEVINS:  Mr. Christie, you raise a number of novel points.

         Have there not been, in fact, cases in which complainants have relied on equality rights, for example, to expand the jurisdiction of the Act so that, in fact, it has been relied on by both complainants and respondents?

         MR. CHRISTIE:  You say complainants have relied on equality rights?

         MEMBER DEVINS:  Yes.

         MR. CHRISTIE:  Yes, but not respondents.  I say that respondents are the only people who will ever need to plead and be able to rely ‑‑

         MEMBER DEVINS:  On equality rights under the Charter.

         MR. CHRISTIE:  Yes, I can see complainants expanding the definitions under section 13(1) by equality rights.  That is what has been done ‑‑

         MEMBER DEVINS:  But there are only certain provisions of the Charter that you say will be relied upon by respondents and not complainants.

         MR. CHRISTIE:  I see, I apologize.  The equality rights have expanded the definition under section 13(1) to include sexual orientation in the McAleer case, yes.  But that is the only provision of the Charter, and it is a provision that expands human rights; it is not a provision that limits human rights.

         The sensitive body, the tribunal which is sensitive to human rights, is going to be more sensitive to the expansion of human rights than they are to the retraction of human rights.  Sensitivity involves sympathy, in our understanding of the word.  Sensitivity involves favourable treatment, and "interest in" means interest in a process ‑‑ not in a negative but in a proactive sense.

         MEMBER DEVINS:  That is the point I am having some difficulty with.  You appear to be using the phrase "human rights" not as denoting a subject matter area of expertise but, rather, as pro-complainant.

         MR. CHRISTIE:  Yes.

         MEMBER DEVINS:  I am having some difficulty following why that necessarily is so.  For example, there may well be counsel who have represented many, many respondents and have been active in representing those individuals, who might be appointed to this Tribunal as somebody who has expertise in the area, et cetera.

         MR. CHRISTIE:  They would not have the sensitivity that would be necessary or the interest in, if their opposition was such that they valued the Charter above the concept of human rights.  They are definitely in direct contradiction, expressly in the area of freedom of expression, exactly in the area of 13(1).  There is a direct contradiction between freedom of expression under 2(b) of the Charter and section 13(1).

         MEMBER DEVINS:  Isn't that a choice that the legislators have made?

         MR. CHRISTIE:  Yes, it is a choice the legislators have made, and they have made, in my submission, a grave mistake.  Where they used to leave it simply unspoken, they thought they needed another hook to make sure that nobody would be appointed who might be sensitive to the Charter more than they were to human rights.  They made it explicitly necessary to avoid that.

         These brilliant drafters wanted to make sure that the Tribunal would not stray from its obligation to human rights, and human rights in a positive sense ‑‑ that is, expansion of it, the support of it.

         Of course, right here we have the clearest demonstration.  Who is representing the complainants?  The Human Rights Commission plus all the Intervenants.  What is the Respondent relying on?  He is relying on the Charter rights.

         There is no method of balancing, except that the Tribunal makes the balance.  If the Tribunal has experience in human rights, expertise in human rights, interest in human rights and sensitivity to human rights, there is no reason for us to believe that they are going to be equally sensitive and experienced or interested in Charter rights.  Logically, right here and now, you clearly can understand our position.

         That is essentially the problem.  What was formerly merely implied is now expressed and, by definition, I say they have created a category of persons, a Human Rights Tribunal. that is sympathetic to one side of the argument.

         The other part of the argument is that this Tribunal is appointed under the old Act and this Tribunal operates pursuant to legislation that preceded this provision ‑‑ as you mentioned in your earlier judgment, pursuant to that and not affected by the new provisions because you continue in your old capacity.  There is no question that the transition provisions make that possible, but unfortunately that does not deal with the state of mind which is inherently required under section 48.1(2).  Unfortunately, that does not alleviate the legitimate concerns of the Respondent because your own appointments were pursuant to that Act and those provisions.

         I say that it really would not have mattered whether section 48.1(2) had been a requirement for appointment to the Senate while you were sitting on this Tribunal.  It would not have made any difference.  If you are appointed to a body whose criterion of appointment is sensitivity to the very arguments of the complainant in the case, then whether that was appointment to the ongoing nature of the Human Rights Tribunal and to subsequent hearings or to The Senate of Canada, it would not have made any difference.  The argument would have been equally valid.  You have met a criterion of appointment for some reason that we don't know, and really we have no way of knowing.

         Of course, we have no right to know and no way of knowing.  We have to face the legislation as it is.  When we faced it in circumstances where the Human Rights Commission paid the salaries of the Tribunal, somebody thought that was improper, and a court agreed for the moment, and that is fine.  To overcome that, they have legislated a predisposition of sensitivity to human rights which, in our submission, may sound just fine to some people.  When there is no conflict with Charter rights, there is no problem.

         If human rights applied in such a way that the Human Rights Act, for instance, included provisions that the Tribunal in the course of assessing human rights had to consider the human rights of the respondent and had to weigh the human rights of the respondent against the human rights of the complainant, then I would have no complaint.  But it doesn't legislate that.

         THE CHAIRPERSON:  What should the legislation have said?  Should it have said nothing, or should it have said that the Tribunal members should be ambivalent on the issue of human rights?  Anyone appointed to the Tribunal has to recognize what the scheme of the legislation is and the purpose of the legislation.  It is about human rights and balancing those rights with all other rights that are conferred on an individual under the Charter or any other legislation.  That is what the exercise is about, is it not?

         What mandates some sort of a bias implanted into the minds of panel members by those words in the legislation?  I have difficulty understanding how that creates a bias.

         MR. CHRISTIE:  There were several questions there.  Let me answer first this way.

         You asked me:  What should they have put into the legislation ‑‑ nothing?  Tentatively, persons appointed as members of the Tribunal must have experience in law and fundamental justice and natural justice, but that goes without saying.  People appointed to the Bench are not given a definition of their job.  They are appointed by virtue of the fact that it is deemed by whoever appoints them that they do have this criterion.  The only criterion I know of for appointing a judge is 10 years' experience at the bar.

         The appointment procedure which we are required to accept is that the government or somebody in their wisdom, the Prime Minister probably, appoints people on recommendation of the local bars who have the expertise that the law requires.  They don't define the expertise in such a way. 

         It is a bizarre legislation provision that defines the judicial qualities in such a way as to emphasize sensitivity to the very thing that is in dispute on one side.  There is no provision like this in any of the appointment procedures under the Judges Act, provincial or federal.  Any of the administrative tribunals that I know of don't say "sensitivity to", as I said at the beginning, lawyers' rights.

         Of course, it is deemed by virtue of your appointment that you have experience in human rights or that you know what it is, but it does not mean that you would have interest in them.  Interest implies greater than neutral commitment to.  It implies a positive interest.  If it was simply to have the interest that one has in fundamental justice, they don't have to say that.  They don't have to put that as opposed to something else, but they did.

         It is an emphasis and requirement that has clearly defined an inherent bias in the Tribunal; it should never have been included.  Really, what it demonstrates ‑‑ and I submit that this is the case ‑‑ is the desire on the part of the legislators to create a political tribunal that has a favouritism that can always be counted on to do what the courts would not do ‑‑ that is, punish respondents.  "Punish" is the wrong choice of words: "correct" is the appropriate definition, but it always has the effect.  I know people who have gone to jail because of Human Rights Tribunal rulings.  "Punishment" is sometimes not an inappropriate term because the remedy is worse than the disease, one might argue.

         There is absolutely no requirement of objectivity.  It is my submission that this provision excludes objectivity.  It excludes the necessary judicial temperament which would say, "We are not here just to apply human rights; we are here to consider Charter rights.  We are here to consider maybe the Bill of Rights.  We are here also to consider natural justice and fundamental justice.  We don't need to be told." 

         If I were in your position, I would be a little bit put off by the suggestion that the legislature needs to tell me how to do my job.  If they appoint you with the discretion that is inherent by virtue of the appointment, they should not have to tell you what your sensitivity should be.  That is telling you to favour one side.

         Let's put it this way.  In subsequent tribunals ‑‑ and I think the appointment is longer than it used to be; I don't know whether it is five years or three years.  If someone wanted to make a career out of being on a tribunal and it was determined that over the course of that time they did not have the appropriate sensitivity to human rights

‑‑ and we all know what "sensitivity" means.  Sensitivity training is a function of certain forms of psychology that makes one very receptive, in this case, to human rights.  It breaks down resistance to other points of view.  It is designed to create a state of mind.  Sensitivity is a state of mind.  It is a state of mind involving receptivity to a concept.  It destroys any resistance to a concept.

         Sensitivity to human rights, if it is to be invoked as a criterion, might very well be in the mind of anyone in your position in future who is looking at the possibility of having to discontinue their actions on the Tribunal if they are not sensitive enough.  If the criterion is applied to reappointment, how would you feel?  How would I feel?  How would anybody feel?  You are sitting there saying, "I am told this is what I have to have, expertise, interest in and sensitivity to human rights and experience in it.  I have certainly had experience, but maybe my sensitivity is slipping if I find myself sympathizing with Charter rights.  If I say that Charter rights supersede this aspect of human rights, am I sensitive enough to human rights?"

         I can imagine the thought process that has to go on if one is being sensitive to one's responsibilities, as one has to be in a position of authority, assuming one wishes to continue in that position. 

         Therefore, it is clearly obvious that the drafters created, out of a desire to add another lever to the power base they wanted to establish, an expansion of human rights into basically a trump for Charter rights, which it has become over time.  It has become a method of defeating Charter rights.  Where they would not be defeated under the Criminal Code, we defeat them under human rights legislation.

         If that is to be treated objectively, one would not be meeting the criterion that is set out in section 48.1(2).

         Thank you very much.  Those are my submissions.

         THE CHAIRPERSON:  Mr. Rosen...?

         MR. ROSEN:  Mr. Fromm.

         THE CHAIRPERSON:  Sorry.  Mr. Fromm, you follow Mr. Christie.  If I don't see you or recognize you, let me know.  I don't want to get ourselves into  a situation where you have not been called on.

         I don't address each counsel on every occasion.  They know when to stand up and when to get my attention if they want it.

         Please proceed.

ARGUMENT ON BEHALF OF CANADIAN ASSOCIATION FOR

FREE EXPRESSION INC.

         MR. FROMM:  In general, Mr. Chairman, I adopt the submissions of Mr. Christie.

         I submit that the argument really hinges on the word "sensitivity" in section 48.1(2) of the Act.  In considering appointments to the Tribunal, individuals must have expertise, experience, interest in and sensitivity to human rights.  Sensitivity to human rights would indicate a predilection or a particular bias toward human rights.

         In our submission, there is a fundamental conflict in many of these cases, especially in this case, between the Charter rights and human rights.  As outlined in the Canadian Human Rights Act, human rights are really group rights which shelter members of designated or privileged groups from discrimination.

         The Charter rights are rights that accrue to every person by dint of being a citizen or even a landed immigrant in this country.  These Charter rights are legal or perhaps even deeper.  They are fundamental rights that accrue to you just by being a human being.

         We have heard from Mr. Freiman on numerous occasions that this is not about freedom of expression, that freedom of expression has no role here.  I think that is very telling.  It has no role because, from the point of view of the human rights argument, the only thing that must be considered is whether or not the feelings of members of a designated or protected or privileged group have been seriously offended.  That is what it is all about.  Freedom of expression does not apply.

         If this were just an argument between one side and another, that would be fair enough.  However, according to the appointment, members of the Tribunal must have a sensitivity to human rights.  That, in our submission, is a bias toward one side.

         Years ago, when Human Rights Commissions were first created on a provincial basis, the rights protected were basically the rights not to be discriminated against in terms of employment, in terms of housing and on a limited number of criteria ‑‑ race, sex, colour, and so on.  Over the years, though, probably as a result of internal pressures within the human rights industry, as these types of discrimination become rarer and rarer, one has to justify one's job.  So there has been tremendous pressure within the human rights industry and from groups who benefit from it to expand these rights.

         These expansions have often been to the detriment of Charter rights.  For instance, a couple of years ago the British Columbia ‑‑

         MEMBER DEVINS;  But haven't those changes been legislative changes?

         MR. FROMM:  Yes.

         MEMBER DEVINS:  So they have been changes enacted by a duly elected legislature or Parliament, whichever it might be.

         MR. FROMM:  Indeed, but ‑‑

         MEMBER DEVINS:  I am just trying to understand where you are going in terms of being representative of a particular perspective.

         MR. FROMM:  I am trying to outline the ongoing conflict between group rights or privileges and Charter rights, particularly freedom of expression.

         A couple of years ago in a piece of legislation in British Columbia called Bill 33, which was amendments to the British Columbia Human Rights Act, it was argued that a provision not very dissimilar to section 13(1) was necessary to govern publications.  One of the government members argued at the time that this was necessary because the courts don't always do what we want them to do.  It was seen by the people who have a bias toward what is called human rights in terms of the Human Rights Act that the courts could not always be counted on to suppress Charter rights, in this case freedom of expression.

         Moving along, in the last couple of years we have seen cases in Ontario and in New Brunswick which have been decided and in Saskatchewan and in British Columbia which have not yet been decided, where there have been complaints against mayors for failing to proclaim either Gay Pride Day or Gay Pride Week.  In the case of the Mayor of London, Ontario and the Mayor of Fredericton, New Brunswick, the argument was made by the respondent, "I cannot do this because I do not believe in it.  You are forcing me to say something I don't believe in," or in the case of the Mayor of Hamilton, "You are forcing me to say something I don't think our community would approve of."

         In the cases that have been decided here in   Ontario and in New Brunswick, it was decided by a Human Rights Tribunal that the rights to freedom of expression would have to take second place to the argued freedom from discrimination.

         What I am submitting is that there is a conflict between the group rights that are championed in the Human Rights Act and the larger individual rights that are championed in the Charter.

         MEMBER DEVINS:  Haven't there also been boards of inquiry decisions, in particular out of B.C., where in fact Charter rights were applied?  Charter rights were applied to circumscribe a hate message right that had just been enacted in the B.C. Code.

         MR. FROMM:  I think Mr. Christie would be more the expert ‑‑

         MEMBER DEVINS:  Fair enough, but my understanding is that there have been cases ‑‑ and the Collins case, in fact ‑‑ where it was Charter rights and the Charter that was applied so as to interpret the Human Rights Code in a way that did not offend the Charter, which seems to go a little bit against your argument.

         MR. FROMM:  If that is a fair description of the case, you may well have a point there. 

         However, we are looking here at the terms of appointment.  The terms of appointment, considering the fact of the conflict between these groups rights which are not open to everybody and Charter rights, which are, the wording of the appointment would seem to suggest a leaning toward or a bias toward one side, which certainly creates on the part of the respondent a reasonable apprehension of bias.

         I am informed that in the appointment of a one-person tribunal in British Columbia, the criteria did not require her to be sensitive to human rights.  I suppose the only criterion was to have the confidence of the Lieutenant Governor.

         THE CHAIRPERSON:  The wording of the section that we are speaking of is really directed to a certain expertise.  We have to keep in mind that the appointments to the Human Rights Tribunal are not restricted to persons having legal qualifications; they are not restricted to lawyers.  Lay persons can be appointed to the Tribunal.

         Therefore, is the wording not consistent with signalling a certain amount of expertise or knowledge in the field of human rights, since they are there to determine issues arising from that legislation?

         MR. FROMM:  If that were the intention, Mr. Chairman, the wording seems extremely lame.  If what they wanted was that somebody be knowledgeable of the Human Rights Act or knowledgeable of some of the case law or precedents, perhaps that could have been stated ‑‑ simply "knowledgeable of the law in this area."  But that is not the wording.  The wording talks about sensitivity to human rights, which in the context here refers to the group rights in the Canadian Human Rights Act rather than the larger individual rights.

         There seems further prejudice from the fact that the group rights, so-called human rights, are not equally open to everybody.  For instance, had the Zundelsite attacked, let us say, the Liberal or Conservative or New Democratic Party and said that, if not all members, at least some of the leading lights were involved in a con job leading to high taxes to fleece the Canadian taxpayers for the purposes of making themselves rich through all manner of patronage appointments and so on and that this was to the detriment of Canadians, et cetera, no member of the Conservative Party or Liberal Party or NDP, as the case might be, would have a cause of action because political opinion is not protected.  It is not one of the human rights.  The Zundelsite or some other site could spread all manner of extreme or overblown opinions about a political group, and members of that group would have no comeback before a Human Rights Tribunal.

         However, every single Canadian human being has the Charter rights ‑‑ the right to freedom of speech, to freedom of expression, to freedom of assembly, to freedom of the press, et cetera. 

         In situations like this, where the terms of appointment point toward requiring members of the Tribunal to have a sensitivity, it really does seem that the legislation wants to stack the odds against the respondent.

         It has sometimes been argued that perhaps a lower threshold is appropriate here, because nobody would go to jail, et cetera.  I would suggest, though, that in terms of what the Human Rights Commission is asking for, there are very severe restrictions on the individual rights of the Respondent.  Should it be found that a site that is in another country, run by another person, should somehow be the responsibility of the Respondent and should the remedy sought by the Commission be imposed, there would be very severe restrictions on his individual rights and perhaps the individual rights of other persons to freedom of expression or perhaps to freedom of the press.

         I point in conclusion to the decision in the case of the public inquiry into the behaviour of the Royal Canadian Mounted Police in the APEC matter in British Columbia, when a member of the Tribunal was reported to have indicated that he thought the Mounties over-reacted.  That was enough for him to resign and for a superior court to stay the proceedings.

         THE CHAIRPERSON:  I am not sure that was the reason for his resignation, but nevertheless ‑‑

         MR. FROMM:  That is not to say that the individual in question might not, on hearing the evidence, have come to a different conclusion.  He did not say he was firmly of the opinion that the Mounties were absolutely in the wrong, but there was in that case a previously expressed opinion and a reasonable apprehension of bias, and there has been a stay in the proceedings.

         Here there is no reflection on any opinion expressed by the members of the Tribunal, but the very appointment seems to indicate a prejudice to one side, a prejudice in favour of the group rights as opposed to the individual rights of the Respondent.

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

ARGUMENT ON BEHALF OF THE CANADIAN HUMAN RIGHTS COMMISSION

         MR. TAYLOR:  You have the written materials from the Commission.  It is clearly our position that section 48.1(2) does not apply to you, and I think your comments this morning on the other motion indicate that you understand this, and I won't take you through it.

         With this new legislation there has been a lot of confusion with some of the language.  I think the language turns, as you pointed out in your ruling, on appointment to the Human Rights Tribunal Panel which is one animal and then appointment to the Tribunal sitting here which is another thing.

         In the new legislation the appointments are made to an entirely new animal called the Human Rights Tribunal and, once you are on that, you are on that.  Those qualifications apply to that new appointment.  They clearly do not apply to you because you were appointed at a time when there were no qualifications.

         MEMBER DEVINS:  Mr. Taylor, do you plan on dealing at some point with Mr. Christie's argument that our very appointment gives rise at that point in time, by virtue of our having met those qualifications, to a reasonable apprehension of bias?

         MR. TAYLOR:  I will.

         THE CHAIRPERSON:  Just in case.

         MR. TAYLOR:  Just in case.

         I want to point out as well that the transition provisions allow for the permanent survival of the previous enactment which is permanent only in the temporal sense that eventually we will not need those transitions because the number of appointments will run out.

         Clearly, the legislature thought this through.  They recognized a potential for problems and, as you pointed out this morning, Mr. Chairman, clearly they made those provisions so that there would be continuity.  This enactment clearly is facilitated by those special provisions to maintain this Tribunal and any others that were sitting.

         To respond to Mr. Christie's paranoid suspicions about the Commission owning the referees, perhaps to Mr. Christie, in the times we have been in court together, the fact that the Commission wins may fuel those suspicions, but it is not the case.  I think, if we owned the referees, we would win every time and, unfortunately, that is not true.

         To understand rights and how they work, you have to look at the Act and its purpose.  The language that has been used ‑‑ individual rights and group rights ‑‑ and misused as well, will find some meaning in the purpose of the Act.  Mr. Christie does make a lot of individual rights under the Charter.  You will see in the purpose of the Act "all individuals should have an equal opportunity" et cetera.  This applies to all individuals.  All individuals should be free to make for themselves the choices that will lead to their determination of the good life without discrimination.

         The "without discrimination" part is the public policy of Canada; the public policy is one of non-discrimination.

         The purpose of the Act sets out that all people have equal opportunity to be free to pursue their version of the good life without a barrier being placed and there can't be a barrier because of a discriminatory practice based on these things ‑‑ race, ethnic origin, et cetera.  Perhaps the majority of Canadians do not have these barriers placed; they may not need the protection of the Act because they do not have barriers placed because of disability.  It is not a specialized group that is coming out of this; it is a recognition of difference.

         Mr. Christie also wants to find in the Act somewhere a definition of human rights, and there is not such a thing.  The contest, if you will, between individual rights and what are being called here group rights is a false contest.  Mr. Zundel's rights are being protected here as much as the Complainants' rights.  The Commission, mandated by the statute, is presenting material for your inquiry in the public interest.

         The idea that that section, sensitivity to human rights, is going to make you decide in our favour is flat out wrong.  There is no qualification examination for you that I know of; the Act is silent on how you are chosen other than by that qualification.  As I said in my written submission ‑‑

         THE CHAIRPERSON:  There is no qualification, but what is the interpretation?  What meaning can you ascribe to those words, statutory interpretation?  It was not in the old Act.  What significance is there in connection with the interpretation of what the policy of the Act is by the addition of those words?

         Generally, because words put in a statute are not necessarily always crystalline in their meaning, one has to search for the purposes of the wording of a statute.  Sometimes they are merely surplus; sometimes the significance of the words measured against the whole scheme of the legislation is benign.

         What do you say those words are intended to mean?

         MR. TAYLOR:  I think, to maintain the integrity of the Act and in keeping with the establishment of what is now, in short form, a permanent Tribunal, the permanence of the Tribunal is dependent upon expertise, and we are clearly moving away from an ad hoc panel consisting of laypersons as well as lawyers to a more permanent situation, the more permanent situation to facilitate the smooth completion of this complaints process.  As a permanent body, the expertise is necessary to make these things run smoothly.

         I think the other parts of the Act that fit into that are that the Chairperson of the Tribunal can appoint a single member.  I think that is what we will see happening, because the single members will be sufficiently expert to be able to run these things through in much the same way as the Canada Labour Board.

         That is what I see in that section, to maintain the integrity of the Act and to make it quicker.  I think it is clear that these amendments, and even the previous ones, came as a result of a recognition by Parliament that things were not working as smoothly as they should have.  I think they were not working as smoothly as they should have because in the beginning, quite frankly, I think the legislature passed this type of law thinking that it would not be needed in 20 years.  The exact opposite has happened, in fact.  The jurisprudence has grown and the cases have become much more complicated.  I think at the beginning they envisaged a two- or three-day hearing.

         THE CHAIRPERSON:  Mr. Taylor, we are going to rise at 12:30 today for certain things that the Tribunal has to look after, so we will take our morning break now.

‑‑- Short Recess at 11:15 a.m.

‑‑- Upon resuming at 11:35 a.m.

         THE CHAIRPERSON:  Before you continue, Mr. Taylor, my colleague Devins heard me say "May 25, 1997" as to the ruling on the relevance of truth.  It should be "1998."

         MR. TAYLOR:  In our written submissions you can see that the Commission takes the position that the new section 48.1(2) does not create a reasonable apprehension of bias.  I don't want to go through all of that again, but just note the general test for bias from the National Energy Board case which you had before you in the other bias motion.

         I think it is important, if we are talking about the integrity of the new Act and the determination of sensitivity to, interest in, experience, et cetera, that these Tribunals are directed to interpret the Act broadly to fulfil its purpose.  In understanding that the section "with experience, expertise, interest in and sensitivity to" governs the whole panoply of human rights, there is nothing in the Act to suggest that this does not encompass the right to freedom of expression.

         Again, setting out these areas of subject matter in no way dictates what your beliefs should be.  It is your conduct that is important.  From the Newfoundland Telephone case, it is clear that the Supreme Court of Canada does not see a problem with expert tribunals.  As Member Devins pointed out earlier, the whole purpose of administrative tribunals is to have expertise in these areas.

         As Justice Cory wrote in the Newfoundland Telephone case, the Court does not see a problem with certain people on boards having certain views.  He expressed confidence that these people who are sitting will "strive for fairness and a just result."

         Also, it is clear from cases that you have had before you as well, Ringrose and French, in the discussion of the other bias motion, that the reasonable apprehension of bias cannot be entertained when the statute provides some overlapping.  If it is implicitly accepted by the legislature, then there cannot be any bias, and that is what those cases stand for.

         Again, in the way that the amendments and the new Act are drafted, it is pretty clear that Parliament wanted to move to a permanent Tribunal, for reasons of efficiency, and an expert Tribunal, again to aid in the efficiency.  When they passed the amendment mandating that the members of the new Tribunal have this expertise, they were doing it in conjunction with all the other parts of the Act, so it hangs together.  They clearly thought it through; it is not something that they left dangling.

         I think it is also clear in some of the other changes that they were trying to fold in together efficiency and the fact that the Chairperson of the Tribunal will appoint a single member when cases are not that difficult or complicated, hopefully to resolve them quickly.

         I just want to go back and cover one or two things that Mr. Christie said.

         It is almost ridiculous to think that you would be taken for sensitivity training.  There always has been, since the 1989 amendments, an arm's-length relationship except in certain procedural payment things which have now been solved.  The Commission and the Tribunal are separate, distinct entities, and there is always a big separation.  There is no way the Commission gets a chance to pick the Tribunal.  We can't shop around for a good one.  We don't have any control like that.  It is just out of the question that the Commission could decide not to show up on day one and that we would have to go to a new tribunal.  We can't do that.  It is not like judge shopping, which can be accomplished.

         The idea that we are of one mind on this is ridiculous.  As I said earlier, if we owned the referees, we would win all the games, and we unfortunately do not.

         Those are my submissions.

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

ARGUMENT ON BEHALF OF THE TORONTO MAYOR'S COMMITTEE

ON COMMUNITY AND RACE RELATIONS

         MR. EARLE:  I am handing up to you a copy of a Book of Authorities and also copies of the French and Ringrose cases which were just referred to by my friend Mr. Taylor.

         Mr. Chairman, I would ask that you accept my submissions as being not only on behalf of the Mayor's Committee but also on behalf of the other Complainants, Sabina Citron and the Canadian Holocaust Remembrance Association.  I have agreed to pinch hit for them today.

         My first submission to you, Mr. Chairman, is that I obviously adopt the submissions of the Commission with respect to their position on the application of the amendments to the Tribunal as well as with respect to their position on the reasonable apprehension of bias.

         In the event that you do not accept the Commission's submission that the application of the amendments does not apply to you and, therefore, the Respondent's argument does not apply, we would echo the Commission in saying that no reasonable apprehension of bias exists because there is no reason that section 48.1(2) should have any effect on the Tribunal Members' obligation to strive for fairness and a just result.

         The new issue that I want to address with you today, Mr. Chairman, is the issue of the doctrine of necessity in the event that you do find that there is reasonable apprehension of bias.  I would like to refer you to tab 2 of the Book of Authorities that I have put before you where you find the P.E.I. Judges Reference, which has been discussed earlier this year in argument.  I direct you to page 11.  You find there the test that is set out in the decision.

         At the bottom of the first column it states:

"Although there is a general rule that a judge who is not impartial is disqualified from hearing a case, there is an exception to this rule that allows a judge who would otherwise be disqualified to hear the case nonetheless, if there is no impartial judge who can take his or her place.  The law recognizes that in some situations a judge who is not impartial and independent is preferable to no judge at all."

         It is our submission, Mr. Chairman, that this doctrine would apply in the event that you accept Mr. Christie's submissions to you that there is no tribunal, past, present or future, which can escape from reasonable apprehension of bias arising from the operation of section 48.1(2).

         The decision goes on to discuss the principles to be applied to the scope of the rule.  I am making the assumption that you have a copy of the written submissions of the Complainant Sabina Citron.  If I could direct you to page 3 of that, paragraph 9 states:

  "The doctrine of necessity applies to administrative tribunals just as it does to courts.  It prevents the disqualification of an adjudicator on the basis of a reasonable apprehension of bias where:

(a)  the cause of the disqualification is not due to a voluntary act of the adjudicator;

(b)  the disqualification would lead to an inability to discharge public functions leading to a failure of justice; and

(c)  no positive substantial injustice would be occasioned by the operation of the doctrine."

         This is a synopsis of principles which can be found at page 13 of the P.E.I. Judges Reference.

         Going through those principles in order, Mr. Chairman, clearly the disqualification that is complained of here is not due to an involuntary act of the Tribunal; it is due to an act of government in amending the Act at this time.

         Turning to the second principle, it is the submission of the Respondent that this disqualification would apply to all tribunals.  It is, therefore, my submission that that would lead to an inability to discharge public functions, resulting in a failure of justice and the frustration of the intent of the statute.  This is not only a public problem in the sense that it renders all tribunals unable to hear and determine human rights complaints re serious issues of discrimination, but there is obviously also a private detriment here in the sense that the Toronto Mayor's Committee and Ms Citron, who have been involved at this point in a very lengthy hearing ‑‑ we are coming up our second-year anniversary soon ‑‑ would be deprived of the benefit and the effort that has gone into that hearing to date.

         THE CHAIRPERSON:  It would render the whole Act non-functional.

         MR. EARLE:  Yes, that is correct.

         Mr. Taylor has mentioned French and Ringrose, and I would also like to mention them here, to the extent that they make clear the importance that where the legislature has spoken or, in this case, Parliament has spoken with respect to the operation of an administrative tribunal, that direction should be respected by the court and that necessity requires that, where a reasonable apprehension of bias, in this case institutional bias, would result in a frustration of the statute, that should not occur.

         With respect to the last principle outlined in the case, "No positive substantial injustice would be occasioned by the operation of the doctrine," as clearly admitted by Mr. Christie in his submissions, the members of the Tribunal have not changed and, at least from his perspective, any inherent bias that you may have had has not changed.  In his submission, the statute has merely made explicit what was implicit before.

         In that case, I see no substantial injustice here in continuing with the Hearing.  There is no further prejudice to the Respondent in the event that you find that a reasonable apprehension of bias exists.

         The Respondent has fully participated in the Hearing to date which, as I mentioned, has been a very lengthy hearing, and it is my expectation that he will continue to do so.

         Those are my submissions, Mr. Chairman.

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

ARGUMENT ON BEHALF OF SIMON WIESENTHAL CENTER

         MR. ROSEN:  I take exception to what Mr. Christie says about the Act not being Charter-sensitive or the exercise of functions under the Act not being Charter-sensitive, including the appointment of Tribunal Members.

         In my respectful submission, one cannot bandy about the provisions of the Charter without remembering what the Supreme Court of Canada said in the De Couteau case, which is that the provisions of the Charter are equal; none is greater than the other.

         As it happens, the Act incorporates the provisions of equality recognized by the Charter and expands upon it for purposes of the Act to proscribe discrimination not only on the basis of race, national or ethnic origin, colour, religion and age, but also sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

         Persons appointed to the Human Rights Tribunal under the Act, in my respectful submission, not only must have experience now in human rights matters; they must also have some expertise in the area.  They must also have an interest in it, and the words "sensitivity to" do not mean a bias toward.  Rather, it is a sensitivity to the issues raised whenever an allegation of a violation of human rights is raised.

         For example, in this particular case, one of the things that you are going to have to decide is whether or not the Respondent merely exercised his constitutional right to freedom of expression in a manner that did not infringe other people's rights of equality, in particular other persons' rights not to be discriminated against.  Sensitivity, in my respectful submission, encompasses the spectrum of issues that arise in human rights, and it does not focus on a particular bias.

         By having expertise, experience, interest in and sensitivity to human rights issues, it also permits the members of this regulatory body the ability to understand how a person's conduct, a person who perhaps does not have those same experiences or sensitivity and so forth, might discriminate, or might not discriminate, as the case may be.  It is not just with respect to religion; it is with respect to all of the things under the Act.

         It is a difficult job for someone who has no experience to do.  For example, one has to deal with many aspects of a multicultural society where everyone is by the Charter deemed to be equal and to balance all of those interests.  In my respectful submission, it is not only well within the powers of Parliament to pass this sort of legislation; indeed, it is mandated.

         If you look at other sorts of tribunals, such as, for example, the Labour Relations Board, people who are appointed to those boards have not only experience and expertise and have a demonstrated interest in labour relations, but also sensitivity to what goes on in the work force.

         At the same time, for example, the Ontario Legislature recognized that lawyers do not have a corner on the market of issues relating to the interaction between lawyers and the public.  In disciplinary matters, in order to inject a certain degree of public sensitivity, they expanded the composition matter of the Benchers to allow for lay Benchers to bring that additional perspective, if you will, to the various tribunals that are mandated by the Law Society Act.

         In my respectful submission, there is nothing wrong with this provision.  In fact, I would respectfully submit that its very existence often inures to the benefit of respondents in most cases.

         Those are my submissions.

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

ARGUMENT ON BEHALF OF B'NAI BRITH

         MR. KURZ:  This very false dichotomy between the alleged group rights under the Human Rights Act and the individual rights under the Charter ‑‑ and I know that some discussion has already been raised with regard to section 15.  There is also section 27 rights that are multiculturalism rights under the Charter.  I am not aware of any case that has allowed for free-standing applications based on section 27, but at the same time section 27 is another interpretive guide that can be looked at in order to look at group rights under the Charter.

         Furthermore, it may well be argued that complainants have individual rights under the Charter that have to be dealt with by a Human Rights Commission.  It can be argued that there are section 7 rights that complainants have when they are before a Human Rights Tribunal.

         To assert simply that there is kind of dichotomy makes no sense.

         Second, Mr. Christie was saying, "I would raise no argument if all they required was a knowledge of the law and due process," or something like that.  That would lead, I suppose, to a different kind of bias because that would make all the members of the Tribunal necessarily lawyers.  Member Jain is no longer on the Tribunal for reasons that are unrelated to what we are discussing, but that would eliminate that kind of input as well.

         I don't have to repeat the arguments with regard to the fact that sensitivity is not bias, but it simply makes no sense to say that being sensitive to human rights in the broad sense ‑‑ and both sides can have human rights ‑‑ somehow or other it makes you biased.

         THE CHAIRPERSON:  Mr. Christie, please.

REPLY ON BEHALF OF THE RESPONDENT

         MR. CHRISTIE:  To begin with, I would like to suggest that Mr. Fromm's remarks to the effect that courts cannot always be counted on to do what we want them to is a classic example of exactly why Human Rights Tribunals should not be created as politically correct courts and they should not, in essence, be given the mandate that makes them politically correct courts or having specific interest in one side or the other of the debate.

         Member Devins mentioned the judgment of Nitya Ayer in relation to the Collins case in finding that the actual remarks did not cross the line.  I read that judgment.  First of all, I don't think it upholds any Charter right.  I think it specifies the description or identification of the provisions of section 7(1)(a) and (b) of the British Columbia Human Rights Act.  It reads them somewhat narrowly ‑‑

         MEMBER DEVINS:  Didn't she do that, Mr. Christie, precisely in response to freedom of expression rights set out in the Charter?

         MR. CHRISTIE:  Yes, but my concern is that she is not subject to a mandatory, statutory requirement of sensitivity to human rights.  The reason she may have come to her decision is that she had the capacity to view Charter rights as somehow equally important.

         MEMBER DEVINS:  Are you suggesting that had she, in fact, been able to be qualified under this section, she would have reached a different conclusion?

         MR. CHRISTIE:  She may very well have.  The fact of the matter is that she was not required to meet the qualifications of the Canadian Human Rights Act as of June and, therefore, Mr. Collins won.

         MEMBER DEVINS:  Not "therefore."

         MR. CHRISTIE:  Maybe not "therefore," but he did as a result.  If you can call losing $200,000 winning, he won, or his employer won.

         The Chairperson asked:  Does the wording of section 48.1(2) point to a specific expertise?  That question, in my submission, must be answered precisely as to what it says.  Mr. Kurz said that sensitivity does not mean bias.  What does it mean?  In my submission, there is no other logical conclusion than that it means a favourable disposition toward.  It does not merely require knowledgeability, but sensitivity to human rights.

         What is the accused before this Tribunal for?  He is alleged not to have been sensitive to the human rights of Jews.  Therefore, the very issue in question is sensitivity to the human rights of Jews.  If he had been as sensitive as this section now requires, he would not be subject to a complaint.  He is, in effect, accused of being insensitive to human rights, and you are mandated to be sensitive to human rights.  It seems to me that the conclusion is quite logical and flows very clearly from that.

         The subject of the APEC Inquiry was brought up by Mr. Fromm, and the remark was made that the Chair did not resign for reasons of one kind or another.  It is my submission that the accusation was that he was sensitive to the concerns of the protesters and insensitive to the concerns of the RCMP, to put it in blunt terms.  Therefore, he was disqualified.

         The very qualifications for this Tribunal now are ‑‑ and you have met those qualifications, by definition ‑‑ to be sensitive to the concerns of human rights.

         The argument was made by Mr. Taylor, first of all, that it does not apply because you are sitting as a Tribunal under the old provisions where no such criteria were met.  It might be argued that you are sitting with your old hats although you are appointed with new hats as well.  That may be so, but it doesn't change the heads that wear the hats.  It is the contents of the heads that wear the hats that have been defined by the provisions of the Act in the way they were.  You are the same people, whether you are appointed under the old provisions or the new.  The new criteria that you have met have defined your qualifications and made explicit what some people may have thought was implicit, but it certainly changed anything from a subjective perception to an objective reality.

         It is only when we have an objective reality that we can object to a reasonable apprehension of bias.  Just because we have what some people refer to as paranoid suspicions is no basis for concern, and it never, of course, would be raised on that basis.

         Although you were appointed under the old Act, having met the criteria of the new Act, the qualifications apply.

         The thrust of Mr. Taylor's argument, it seems to me, was that the legislature has thought this through and has mandated this.  The legislature thought the legislation through before the MacBain case, and it was determined by a court that it had thought it through in such a way that it created a reasonable apprehension of bias, and the legislation had to be changed.  So it was changed.

         The investigative process and the determination of a prima facie complaint was separated from the adjudication process, which took it one step closer to being impartial.  That was the first time the legislature had thought it through and had been wrong.

         The second time the legislature had thought it through and had been wrong was revealed in the judgment of Madam Justice McGillis in the Bell case.  It is interesting that in both cases the legislature realized it was wrong and changed the legislation.  As of June they reacted to the Bell case, and much earlier they reacted to the MacBain case.

         Of course, we were out of time for our objection to the Bell case, it was said, because we had gone along with the provisions as they had stood.  It is my submission that that argument cannot apply to this complaint because we brought these in the summer when there was no Tribunal, and the legislation changed after the Tribunal had finished sitting for the summer in 1998.  We brought them at the first opportunity, and they were put over to this time to deal with.

         Mr. Taylor also said that the legislation requires that persons be treated without discrimination.  Of course, individual rights are defined in the legislation in terms of group rights.  You have individual rights not to be discriminated against because you are a member of a group.  It does not provide any rights to persons who cannot be categorized into one of the protected classes.  Any concept of individual rights that is expressed in the Canadian Human Rights Act is defined by its own terms, based upon a group criterion.

         Mr. Taylor said, "We would win every case if we picked the adjudicators."  You don't have to pick the adjudicators any longer; they are picked, by definition, sympathetic.  As of June 30, we don't know how many cases they have lost ‑‑ I doubt very many since June 30.  The chances of losing them are much slimmer now.  If the sensitivity criterion is applied, then those like the Respondent here who are not sensitive to human rights of some group will definitely find themselves contrary to the sensitivities of the Panel who, by definition, have been selected with that existing sensitivity.

         THE CHAIRPERSON:  Does the admonition that I say Crowns should follow, that the Crown never wins and the Crown never loses ‑‑ is there an embedded bias in the way the Commission defends a case?  Do they win or lose?  We are talking about winning or losing.  I am not sure that there is a policy in the Commission that it wins or loses.  It is here to assist the Tribunal to come to a conclusion, I suppose.

         MR. CHRISTIE:  It is true that the Crown has, theoretically, the obligation to uphold the law regardless of favour or advantage or disadvantage to the accused. 

         The specific legislative scheme of the Canadian Human Rights Act does not cast the Commission merely in a neutral role.  It is to administer the Act, which is to uphold human rights as defined by the Act itself.  It has a more aggressive mandate, in my submission.  It is clear that my learned friend Mr. Taylor sees his position as winning and losing.  His own remarks were very clearly coloured with the remark, "We don't win every game."  I take that to mean that sometimes he loses.

         I don't know how many cases, if ever there has been a case, under section 13(1) the Human Rights Commission has lost.  I don't know of any.

         The fact that words are put in a statute does not lend them, after the Charter, any aura of legitimacy at all.  Parliament used to be incapable of making errors.  Parliament could do no wrong.  After the Charter, Parliament has obviously made many mistakes and continues to make mistakes.

         The existence of a statutory provision and the consequence of that provision being declared creative of a reasonable apprehension of bias could never be corrected.  There would be no MacBain case; there would be no Bell Canada case if the defence of necessity could always be invoked.  It would never change.  There would be no judgment ever possible that could not be defeated by the argument, "But, if you held this way ‑‑-".  There could be no tribunals at all.

         If the legislation had been enacted to say, as it does here, sensitivity to human rights and had defined it in those terms with the clear implication that we say exists in the words, it could never be rectified.  The courts could never interfere.  No one could ever change it.  Parliament would be supreme.

         Parliament was supreme before the Charter, but Parliament can be wrong.

         MEMBER DEVINS:  Mr. Christie, if you are not invoking Charter rights, can't the doctrine of necessity then apply?

         MR. CHRISTIE:  Fundamental justice under the Charter goes to the heart of the jurisdiction of this Panel.

         MEMBER DEVINS:  But that is what the doctrine of necessity deals with.  It deals with issues of fundamental justice and issues of bias and issues that go to jurisdiction.

         MR. CHRISTIE:  If we are dealing with the case of Prince Edward Island and the Provincial Court, that went to the issue of whether the legislation created a reasonable apprehension of bias.  It did not involve, in my submission, the principle that a reasonable apprehension of bias can have never any effect if it would invalidate a series of tribunals.  It was actually dealing with all the provincial courts of Quebec, Manitoba, Saskatchewan, Alberta and Prince Edward Island.

         Can it be said that the necessity to uphold the existing legal decisions of all those courts is comparable to the necessity of continuing a Canadian Human Rights Tribunal?  It is my submission that there is quite a difference between all the existing and previous judgments of the provincial courts on criminal matters in all those provinces and the continued existence of the Canadian Human Rights Tribunal.

         MEMBER DEVINS:  Is it your submission that the doctrine of necessity can never apply to Human Rights Tribunals?

                                    Toronto, Ontario

‑‑- Upon resuming on Tuesday, December 15, 1998

    at 10:10 a.m.

         THE CHAIRPERSON:  Good morning.  We will deal with the motions before us.

         At the conclusion of the last Hearing week the Tribunal reserved its decision on two motions brought by the Respondent, the first with regard to the resignation of Member Jain and the impact of the legislative amendments to the Canadian Human Rights Act, now Canadian Human Rights Act, Statutes of Canada, 1998, Chapter 9.  The second sought to qualify Mark Weber as an expert witness.

         Turning first to the effect of Member Jain's resignation, Mr. Christie on behalf of the Respondent and supported by the Canadian Association for Free Expression Inc. submitted that pursuant to section 49(2) of the Act as amended a two-member tribunal is no longer possible.  He did not argue that Member Jain's resignation otherwise resulted in a loss of jurisdiction.  He simply submitted that the amendments currently contemplate panels of a single member or three members, but not two.

         In support of his argument Mr. Christie relied on the appointment of the remaining Members of this Tribunal Panel, Chair Pensa and Member Devins, to the newly-established Canadian Human Rights Tribunal created under the amended Act.  It was submitted that, by virtue of being appointed to the new Tribunal, the appointment provisions set out in the new Act apply to these proceedings.  It was further submitted that, since the President of the Tribunal originally concluded that this Hearing warranted three Members, it could not now be brought into compliance with the amended requirements by reducing this Panel to a sole Member.

         The Commission, supported by both the Complainants and the remaining Intervenors, maintained that the amended Act simply does not apply.  It was argued that the appointment of the Panel was a jurisdictional matter and that, therefore, the amendments were not to be applied retrospectively.

         As for the appointment of the current Members of this Panel for the Canadian Human Rights Tribunal, it was submitted that that merely establishes eligibility for appointment to future Panels and does not alter the Members' status at this Hearing.

         In reply, Mr. Christie maintained that the appointment provisions were procedural only and, therefore, were to be applied retroactively.

         The essence of Mr. Christie's argument is that, once we were appointed as Members under the amended Act, the amended provisions governing the appointment of a Panel must apply.  In our view, the foundation of the Respondent's submission collapses two distinct "appointment" procedures.

         Under the applicable legislative framework for both the former and the current Act, there are two separate appointments which must be made before a Member or Members can hear a complaint.  The first essential appointment is made by the Governor in Council establishing a list of individuals who make up the Tribunal (section 48.1 of the Act).

         From those duly appointed to the roster, the President of the Tribunal then has a statutory duty to assign a Member or Members to an individual Panel to inquire into a specific complaint (section 49.1(2) of the Act.

         These are two discrete appointment schemes, with the former only making a Member eligible for the latter. 

         All of the Members originally appointed to hear this matter had previously been appointed to the Human Rights Tribunal.  On November 29, 1996 we were appointed by the President to inquire into the complaint now before us.

         In our view, the subsequent appointment of two of the Panel Members to the newly-created Human Rights Tribunal does not in any way alter the character of our previous appointment to this Panel.  It merely allows the President to appoint us to other cases after June 30, 1998.  Nor we do accept the submission that the assignment of Members to inquire into a complaint is procedural so that section 49(2) should be applied retrospectively.

         We note that the Respondent himself asserted that failure to comply with the requirements of the appointment procedures resulted in a loss of jurisdiction and could not be cured.  If we were to accept the Respondent's position, we would be in the anomalous position of retroactively applying selection criteria which could not have been considered, yet which would vitiate otherwise legal proceedings.

         There is no dispute that the President of the Tribunal could have chosen under the old assignment provisions to appoint only two Members to this Panel. 

         The necessary implication of the Respondent's argument is that a Panel, although legally constituted when originally established, would subsequently lose jurisdiction and would not be capable of being cured.  In our view, such an interpretation is contrary to both common sense and the legislative intent.

         Section 33(3) of the amended Act provides as follows:

         "The members of any Human Rights Tribunal appointed under the Canadian Human Rights Act before the commencement day have jurisdiction with respect to any inquiry into the complaint in respect of which the Human Rights Tribunal was appointed."

         This transition provision is unambiguous.  Panels appointed prior to the enactment of the amendments are meant to continue as previously constituted.  We see nothing in principle which would alter that intent by virtue of a change in composition resulting from the resignation of a Member.  Indeed, the Respondent did not argue that the resignation per se resulted in a loss of jurisdiction.  It was only submitted that a two-Member Panel could not survive the June 30, 1998 amendments to the Act.

         Finally, in our view, there is no prejudice to the Respondent in continuing with two Members.  It was argued that the Respondent was entitled to the benefit of the expertise of three Members and that he should not be put at the risk of a deadlocked decision by the Panel.

         Bedford Discount Meat & Grocery v. Nova Scotia Minister of Finance, 1933 Nova Scotia Journal No. 356, a decision of the Nova Scotia Court of Appeal, was cited as authority for the submission.  We do not find this case to be particularly helpful.  It merely states the obvious that, where there is uncertainty as to the decision rendered by an administrative agency, the matter is to be remitted for a clear decision on the merits.  It does not stand for the proposition that two-Member Panels cannot stand.

         Having regard to the possibility that as the two remaining Members we may not agree in our ultimate conclusion, we note that the complaint may well fail if there is not a unanimous decision.  In any event, this is a purely hypothetical problem which should not deprive us of jurisdiction at this stage in the proceedings.

         Other tribunal panels have considered parallel arguments and have elected to proceed in the face of a similar resignation.  (See interim decision May 21, 1997 in Peter and Trudy Jacobs and Canadian Human Rights Commission v. Mohawk Council of Kahnawake.  The Tribunal ruling is dated December 16, 1996 in John Mills and Canadian Human Rights Commission v. VIA Rail Inc.

         We do not consider the amendments to the Act to be a bar to continuing with two Members nor have we been persuaded that we have otherwise lost jurisdiction as a result of Member Jain's resignation.

         Accordingly, we dismiss the motion.

         The Respondent's second motion has to do with Mark Weber and an application to qualify him as an expert witness in a wide-ranging capacity.

         He is tendered as an expert in Holocaust history and revisionism and the historical relationship between Jews and Germans or non-Jews in modern times, as a historian who can contest the opinions provided by Dr. Schweitzer and, generally, as someone who can provide an expert opinion on the social and historiographic context of Holocaust revisionism as expressed in the material found on the Zundelsite.

         We heard more than two days of evidence from this witness on his qualifications while he was subjected to extended examination-in-chief and cross-examination and redirect examination.  Ultimately, the qualification of this witness was the subject of strenuous argument.

         The Commission, supported by the Complainants and all of the Intervenors save Mr. Fromm, vigorously opposed the acceptance of this witness as an expert.  In their view, he did not possess sufficient academic qualifications, and his publications and indeed, it was argued, his entire area of expertise have been rejected by his academic peers.

         Furthermore, it was submitted that he has demonstrated through the misleading nature of his published articles that he is inherently unreliable.  In any event, it was argued that the proposed evidence of this witness was not relevant to the issues before the Tribunal.

         We have given these arguments careful consideration.  Although we have grave reservations as to the academic qualifications and scholarly integrity of this witness, we are prepared to accept him as an expert in Holocaust revisionism as he and others have defined that field.  We would, however, allow this evidence only for the very limited purpose of establishing the context in which the Holocaust revisionist community operates.

         We do not accept Mr. Weber as an expert sociologist or as a historian beyond the field of Holocaust revisionism. 

         We perceive his expertise to be quite limited and would expect the evidence to be very focused.  We would remind the parties that our May 25, 1997 ruling on the relevance of the truth of the material found in the Zundelsite is not an issue properly before us, and we will not entertain evidence in this regard.

         In arriving at our decision, we have considered the position of this historical discipline which is well outside the mainstream of academic acceptance and that, as a result, many of those who study or who are experts in the field of Holocaust revisionism will not likely possess traditional academic qualifications.

         We are also mindful that this is the third expert witness that the Respondent has tendered in this area and that the first two were not deemed by us to qualify as expert witnesses.  These witnesses have all been called to give evidence that the Respondent has suggested is critical to his response to the complaints before us.

         In all the circumstances of this case, we are inclined to allow this evidence to be led for the very narrow purpose which we have set out subject, of course, to argument as to the weight to be given to such evidence.

         Where do we go from here?  Mr. Christie, are you calling another witness?

         MR. CHRISTIE:  I had suggested that we might deal with the motion regarding the reasonable apprehension of bias arising out of the appointment procedures of the new Tribunal.  That was something we were going to discuss on Wednesday, December 9, or maybe the 10th.

         THE CHAIRPERSON:  Are counsel ready to deal with the motion?

         We will hear your argument on the motion.

ARGUMENT ON BEHALF OF THE RESPONDENT

         MR. CHRISTIE:  This motion arises out of the provisions of section 48.1(1) of the Canadian Human Rights Act which establishes as of June 30, 1998 a new Tribunal, namely the Canadian Human Rights Tribunal.

         Section 48.1(2) of the Act provides that persons appointed as members of the Tribunal must have experience, expertise, and interest in and sensitivity to human rights.

         Our position is that Chair Pensa and the associate Ms Devins were appointed by Order in Council to the Canadian Human Rights Tribunal on June 30, 1998 and that the applications of the principles that are required for that appointment, by necessary implication, mean that the Chair and Ms Devins are persons who have experience, expertise, interest in and sensitivity to human rights. 

         I have read the material filed by the various Intervenors and the Commission, and it is clear that they think that it is ridiculous to think that anyone with those qualifications would, prima facie, not be entitled to sit on the Human Rights Tribunal.

         I have tried to find other examples of administrative tribunals or bodies that are created for adjudicative purposes where the conditions of appointment are experience, expertise, interest in and sensitivity to the very thing being inquired into.  I have been able to find none.  The reason, I think, that one cannot find any is that it would be obviously an indication of a predisposition toward one side of the argument in a case involving the issue that is involved here or in any tribunal.

         For example, if it was an administrative tribunal such as the Discipline Committee of the Law Society and it was said, for instance, that members appointed to the Discipline Committee must have experience, expertise, interest in and sensitivity to lawyers' rights, it would be clearly the case that one side of the argument is to be treated with greater sensitivity, interest and expertise than the other.

         This is equally true, for instance, if one had an inquiry into the Transport Safety Board with sensitivities to pilots' rights or any issue where you have on the one hand a body such as is the case here.  The Canadian Human Rights Commission represents human rights. 

         In this context, it is clear that human rights can conflict with Charter rights.  Charter rights are individual rights; for human rights you have to be a member of a race, religion, ethnic origin, sexual orientation or some discrete group which has special status under the Act to be protected.  Such groups are defined in the Act and given a specific identity based upon either a racial characteristic, a religious characteristic, a sexual characteristic or physical or mental disability or marital status.

         THE CHAIRPERSON:  How can that provision be read as overriding the individual rights enshrined in the Charter?

         MR. CHRISTIE:  Sir, it is this that makes it override.  There has to be sensitivity to human rights.  There is no required sensitivity to Charter rights.  There is no required expertise in Charter rights.  There is no required interest in Charter rights and no required experience in Charter rights.  But there is a required experience, expertise, interest in and sensitivity to human rights.

         MEMBER DEVINS:  Mr. Christie, isn't that simply the subject matter of human rights issues as opposed to a sensitivity or predisposition to one particular right or other?

         MR. CHRISTIE:  The definition of "human rights" is set out in the Human Rights Act.  In this context, it is section 13(1) which involves sensitivity to groups identified according to their human rights.  Human rights, as I say, are quite contradictory, in essence, to Charter rights.

         The only requirement for a person to qualify for rights under section 2(b) is that they be a person.  To qualify for rights under section 13(1) you have to be a member of a discrete group.  In other words, your qualifications for human rights are collectivist qualifications.  It is because you are part of a collective defined by the legislation that you have these rights.  Otherwise, you don't qualify.

         If I were simply to have a complainant objecting to denial of their free expression rights or their equality rights under the Charter, they would not be here.  They would not have a right to be here.  They would not have a prima facie case; they would not get this far.

         The Human Rights Commission has made an investigation and done all that is required under the Act and determined that there has been a breach in their view of human rights, section 13(1), being the criterion of a collectivist definition.  It is a definition based on characteristics identified as group characteristics.

         THE CHAIRPERSON:  The interface between human rights legislation and the Charter is a legal issue, is it not?  We don't have to say in any piece of legislation that it is subject to the  Charter.  The law with respect to the Charter operates as part of the Constitution.  You don't have to, in every piece of legislation, say, "Oh, but this is all subject to the Charter."  It follows by operation of law.

         MR. CHRISTIE:  It does; I agree.

         If it were the case that persons appointed as members of the Tribunal must have experience in law, I would have no objection, or expertise in law or interest in law or sensitivity to law.  But they have all those characteristics in relation to a particular kind of law and a particular kind of right.

         I am not objecting or saying in any way that Charter rights don't apply.  I am saying that, indeed, the very reason that this argument, at least to my mind, is persuasive is that Charter rights do apply and there is a balancing requirement that eventually will have to take place if my arguments have some merit in relation to section 2(b), for instance.

         THE CHAIRPERSON:  Obviously, a balance is struck.

         MR. CHRISTIE:  In any situation of balance it is totally inappropriate to have the decider of fact appointed under a criterion whereby their experience, expertise, interest and sensitivity is to one side of the balance.  It is a ridiculous provision.  It was a mistaken provision.

         THE CHAIRPERSON:  Maybe it is superfluous.

         MR. CHRISTIE:  Unfortunately, we can't know that.  It might very well be superfluous.

         THE CHAIRPERSON:  As a matter of interpretation, it might be superfluous; I don't know.

         MR. CHRISTIE:  We are in the unfortunate position of not being aware that it is superfluous.  We are aware that it is legislation and a criterion for appointment.  It is not necessarily an indication of an actual bias; we don't know that.  We don't know anything about the appointment process, as to why it is made or who is selected or how anyone is selected.

         When we are told in the legislation itself that, as a criterion of appointment, the member must have experience in these particular areas in relation to the specific right of human rights, we are taking the position that that is in contrast to and in conflict with and has to be balanced with Charter rights under the Charter. 

         Unfortunately, these drafters, it seems to me, realized for the first time that the Human Rights Tribunal was to be cut free from the Human  Rights Commission.  I realize that you have dealt with the Bell case and all that, but the fact of the matter is that they have written this legislation in response to that because they don't want the problem to continue.  Much as we were assured that it would all be resolved by the Court of Appeal by now, I don't know that it has, but be that as it may.

         The drafters decided:  Now that the Tribunal is no longer under the Commission's control, we have to have something that makes them uniquely sensitive.  It was a foolish move to draft it in such a way.  The connection is now no longer covert; it is now overt.  They are not satisfied with trusting you just to apply the law and be objective, as you ought to be; they want to make sure that you have a specific sensitivity, so they draft it right in the law.

         MEMBER DEVINS:  Is it the fact that it is required by the statute that creates the institutional bias or is it simply the presence of those features?  It is not uncommon in administrative tribunals; in fact, panel members or adjudicators are chosen because of their familiarity or expertise in the area.  That was the whole reason for administrative tribunals in the first place.

         In this case, is it a fact that it has been prescribed in the legislation that creates the problem?

         MR. CHRISTIE:  We have always known, or perhaps suspected, that administrative tribunal members are appointed because they have a connection

‑‑ at least, from our perspective it looks like they have a connection ‑‑ and long-standing sympathy with the idea of human rights.  That is fine.  We have no way of proving or disproving that.  We have to live with our own paranoid suspicions in that regard.

         The fact of the matter is that, when they write it right in the legislation, we are not guessing any more.  It is true, for example, that members of the Transport Safety Board are often people in the aeronautics industry.  They have had long-standing experience, some as pilots, some as airline operators.  I know many who were appointed because they had experience in the north, and accidents happen in the north.  Of course, it is necessary for administrative tribunals to have experience, but they can have a diversity of experience.

         At the issue of administration of this Act from a diversity of perspective ‑‑ for instance, that is why they have lay members of the Benchers.  They don't just want a bunch of lawyers deciding on whether lawyers did right or wrong.  At least now there is more and more trend, I gather, at least in British Columbia that I know of, to have lay members appointed as Benchers.

         THE CHAIRPERSON:  I suspect that in that very Act, as I suspect there is in a legion of other neighbouring Acts, that the tribunal or the administrative body has to direct its mind to the public interest.  Would your argument not apply there as well?  If they were to direct their mind to the public interest, it is contrary to the Charter which is personal to individuals.  Isn't there the same contradiction or dichotomy that you seek to put on this particular legislation?

         MR. CHRISTIE:  If I understand that position, sir, it is that the public interest would be contrary to Charter interest.  I don't see that as a dichotomy.  The Charter interest, after all, is part of the public interest.  Public interest is broad enough to include the Charter rights.  Not only are we members of groups, such as the Law Society, transport community or whatever; we are also citizens.  The public interest can encompass the subject of Charter rights.

         THE CHAIRPERSON:  Human rights is also a public policy and would not be contradictory to Charter rights.

         MR. CHRISTIE:  It is in this respect, that Charter rights are individual and human rights are collective.  It is only the respondent in any human rights case who will be in the position of relying on the Charter of Rights inherently.  The human rights legislation, with its collectivist definition, is seeking to, and frequently does, supersede the Charter and the individual right.

         They are in conflict.  I think many times the Supreme Court has seen the contradiction between individual rights under the Charter and collective rights under the Human Rights Act, and the dichotomy has been resolved, for instance in the Taylor case, in favour of collective rights.

         MEMBER DEVINS:  Mr. Christie, you raise a number of novel points.

         Have there not been, in fact, cases in which complainants have relied on equality rights, for example, to expand the jurisdiction of the Act so that, in fact, it has been relied on by both complainants and respondents?

         MR. CHRISTIE:  You say complainants have relied on equality rights?

         MEMBER DEVINS:  Yes.

         MR. CHRISTIE:  Yes, but not respondents.  I say that respondents are the only people who will ever need to plead and be able to rely ‑‑

         MEMBER DEVINS:  On equality rights under the Charter.

         MR. CHRISTIE:  Yes, I can see complainants expanding the definitions under section 13(1) by equality rights.  That is what has been done ‑‑

         MEMBER DEVINS:  But there are only certain provisions of the Charter that you say will be relied upon by respondents and not complainants.

         MR. CHRISTIE:  I see, I apologize.  The equality rights have expanded the definition under section 13(1) to include sexual orientation in the McAleer case, yes.  But that is the only provision of the Charter, and it is a provision that expands human rights; it is not a provision that limits human rights.

         The sensitive body, the tribunal which is sensitive to human rights, is going to be more sensitive to the expansion of human rights than they are to the retraction of human rights.  Sensitivity involves sympathy, in our understanding of the word.  Sensitivity involves favourable treatment, and "interest in" means interest in a process ‑‑ not in a negative but in a proactive sense.

         MEMBER DEVINS:  That is the point I am having some difficulty with.  You appear to be using the phrase "human rights" not as denoting a subject matter area of expertise but, rather, as pro-complainant.

         MR. CHRISTIE:  Yes.

         MEMBER DEVINS:  I am having some difficulty following why that necessarily is so.  For example, there may well be counsel who have represented many, many respondents and have been active in representing those individuals, who might be appointed to this Tribunal as somebody who has expertise in the area, et cetera.

         MR. CHRISTIE:  They would not have the sensitivity that would be necessary or the interest in, if their opposition was such that they valued the Charter above the concept of human rights.  They are definitely in direct contradiction, expressly in the area of freedom of expression, exactly in the area of 13(1).  There is a direct contradiction between freedom of expression under 2(b) of the Charter and section 13(1).

         MEMBER DEVINS:  Isn't that a choice that the legislators have made?

         MR. CHRISTIE:  Yes, it is a choice the legislators have made, and they have made, in my submission, a grave mistake.  Where they used to leave it simply unspoken, they thought they needed another hook to make sure that nobody would be appointed who might be sensitive to the Charter more than they were to human rights.  They made it explicitly necessary to avoid that.

         These brilliant drafters wanted to make sure that the Tribunal would not stray from its obligation to human rights, and human rights in a positive sense ‑‑ that is, expansion of it, the support of it.

         Of course, right here we have the clearest demonstration.  Who is representing the complainants?  The Human Rights Commission plus all the Intervenants.  What is the Respondent relying on?  He is relying on the Charter rights.

         There is no method of balancing, except that the Tribunal makes the balance.  If the Tribunal has experience in human rights, expertise in human rights, interest in human rights and sensitivity to human rights, there is no reason for us to believe that they are going to be equally sensitive and experienced or interested in Charter rights.  Logically, right here and now, you clearly can understand our position.

         That is essentially the problem.  What was formerly merely implied is now expressed and, by definition, I say they have created a category of persons, a Human Rights Tribunal. that is sympathetic to one side of the argument.

         The other part of the argument is that this Tribunal is appointed under the old Act and this Tribunal operates pursuant to legislation that preceded this provision ‑‑ as you mentioned in your earlier judgment, pursuant to that and not affected by the new provisions because you continue in your old capacity.  There is no question that the transition provisions make that possible, but unfortunately that does not deal with the state of mind which is inherently required under section 48.1(2).  Unfortunately, that does not alleviate the legitimate concerns of the Respondent because your own appointments were pursuant to that Act and those provisions.

         I say that it really would not have mattered whether section 48.1(2) had been a requirement for appointment to the Senate while you were sitting on this Tribunal.  It would not have made any difference.  If you are appointed to a body whose criterion of appointment is sensitivity to the very arguments of the complainant in the case, then whether that was appointment to the ongoing nature of the Human Rights Tribunal and to subsequent hearings or to The Senate of Canada, it would not have made any difference.  The argument would have been equally valid.  You have met a criterion of appointment for some reason that we don't know, and really we have no way of knowing.

         Of course, we have no right to know and no way of knowing.  We have to face the legislation as it is.  When we faced it in circumstances where the Human Rights Commission paid the salaries of the Tribunal, somebody thought that was improper, and a court agreed for the moment, and that is fine.  To overcome that, they have legislated a predisposition of sensitivity to human rights which, in our submission, may sound just fine to some people.  When there is no conflict with Charter rights, there is no problem.

         If human rights applied in such a way that the Human Rights Act, for instance, included provisions that the Tribunal in the course of assessing human rights had to consider the human rights of the respondent and had to weigh the human rights of the respondent against the human rights of the complainant, then I would have no complaint.  But it doesn't legislate that.

         THE CHAIRPERSON:  What should the legislation have said?  Should it have said nothing, or should it have said that the Tribunal members should be ambivalent on the issue of human rights?  Anyone appointed to the Tribunal has to recognize what the scheme of the legislation is and the purpose of the legislation.  It is about human rights and balancing those rights with all other rights that are conferred on an individual under the Charter or any other legislation.  That is what the exercise is about, is it not?

         What mandates some sort of a bias implanted into the minds of panel members by those words in the legislation?  I have difficulty understanding how that creates a bias.

         MR. CHRISTIE:  There were several questions there.  Let me answer first this way.

         You asked me:  What should they have put into the legislation ‑‑ nothing?  Tentatively, persons appointed as members of the Tribunal must have experience in law and fundamental justice and natural justice, but that goes without saying.  People appointed to the Bench are not given a definition of their job.  They are appointed by virtue of the fact that it is deemed by whoever appoints them that they do have this criterion.  The only criterion I know of for appointing a judge is 10 years' experience at the bar.

         The appointment procedure which we are required to accept is that the government or somebody in their wisdom, the Prime Minister probably, appoints people on recommendation of the local bars who have the expertise that the law requires.  They don't define the expertise in such a way. 

         It is a bizarre legislation provision that defines the judicial qualities in such a way as to emphasize sensitivity to the very thing that is in dispute on one side.  There is no provision like this in any of the appointment procedures under the Judges Act, provincial or federal.  Any of the administrative tribunals that I know of don't say "sensitivity to", as I said at the beginning, lawyers' rights.

         Of course, it is deemed by virtue of your appointment that you have experience in human rights or that you know what it is, but it does not mean that you would have interest in them.  Interest implies greater than neutral commitment to.  It implies a positive interest.  If it was simply to have the interest that one has in fundamental justice, they don't have to say that.  They don't have to put that as opposed to something else, but they did.

         It is an emphasis and requirement that has clearly defined an inherent bias in the Tribunal; it should never have been included.  Really, what it demonstrates ‑‑ and I submit that this is the case ‑‑ is the desire on the part of the legislators to create a political tribunal that has a favouritism that can always be counted on to do what the courts would not do ‑‑ that is, punish respondents.  "Punish" is the wrong choice of words: "correct" is the appropriate definition, but it always has the effect.  I know people who have gone to jail because of Human Rights Tribunal rulings.  "Punishment" is sometimes not an inappropriate term because the remedy is worse than the disease, one might argue.

         There is absolutely no requirement of objectivity.  It is my submission that this provision excludes objectivity.  It excludes the necessary judicial temperament which would say, "We are not here just to apply human rights; we are here to consider Charter rights.  We are here to consider maybe the Bill of Rights.  We are here also to consider natural justice and fundamental justice.  We don't need to be told." 

         If I were in your position, I would be a little bit put off by the suggestion that the legislature needs to tell me how to do my job.  If they appoint you with the discretion that is inherent by virtue of the appointment, they should not have to tell you what your sensitivity should be.  That is telling you to favour one side.

         Let's put it this way.  In subsequent tribunals ‑‑ and I think the appointment is longer than it used to be; I don't know whether it is five years or three years.  If someone wanted to make a career out of being on a tribunal and it was determined that over the course of that time they did not have the appropriate sensitivity to human rights

‑‑ and we all know what "sensitivity" means.  Sensitivity training is a function of certain forms of psychology that makes one very receptive, in this case, to human rights.  It breaks down resistance to other points of view.  It is designed to create a state of mind.  Sensitivity is a state of mind.  It is a state of mind involving receptivity to a concept.  It destroys any resistance to a concept.

         Sensitivity to human rights, if it is to be invoked as a criterion, might very well be in the mind of anyone in your position in future who is looking at the possibility of having to discontinue their actions on the Tribunal if they are not sensitive enough.  If the criterion is applied to reappointment, how would you feel?  How would I feel?  How would anybody feel?  You are sitting there saying, "I am told this is what I have to have, expertise, interest in and sensitivity to human rights and experience in it.  I have certainly had experience, but maybe my sensitivity is slipping if I find myself sympathizing with Charter rights.  If I say that Charter rights supersede this aspect of human rights, am I sensitive enough to human rights?"

         I can imagine the thought process that has to go on if one is being sensitive to one's responsibilities, as one has to be in a position of authority, assuming one wishes to continue in that position. 

         Therefore, it is clearly obvious that the drafters created, out of a desire to add another lever to the power base they wanted to establish, an expansion of human rights into basically a trump for Charter rights, which it has become over time.  It has become a method of defeating Charter rights.  Where they would not be defeated under the Criminal Code, we defeat them under human rights legislation.

         If that is to be treated objectively, one would not be meeting the criterion that is set out in section 48.1(2).

         Thank you very much.  Those are my submissions.

         THE CHAIRPERSON:  Mr. Rosen...?

         MR. ROSEN:  Mr. Fromm.

         THE CHAIRPERSON:  Sorry.  Mr. Fromm, you follow Mr. Christie.  If I don't see you or recognize you, let me know.  I don't want to get ourselves into  a situation where you have not been called on.

         I don't address each counsel on every occasion.  They know when to stand up and when to get my attention if they want it.

         Please proceed.

ARGUMENT ON BEHALF OF CANADIAN ASSOCIATION FOR

FREE EXPRESSION INC.

         MR. FROMM:  In general, Mr. Chairman, I adopt the submissions of Mr. Christie.

         I submit that the argument really hinges on the word "sensitivity" in section 48.1(2) of the Act.  In considering appointments to the Tribunal, individuals must have expertise, experience, interest in and sensitivity to human rights.  Sensitivity to human rights would indicate a predilection or a particular bias toward human rights.

         In our submission, there is a fundamental conflict in many of these cases, especially in this case, between the Charter rights and human rights.  As outlined in the Canadian Human Rights Act, human rights are really group rights which shelter members of designated or privileged groups from discrimination.

         The Charter rights are rights that accrue to every person by dint of being a citizen or even a landed immigrant in this country.  These Charter rights are legal or perhaps even deeper.  They are fundamental rights that accrue to you just by being a human being.

         We have heard from Mr. Freiman on numerous occasions that this is not about freedom of expression, that freedom of expression has no role here.  I think that is very telling.  It has no role because, from the point of view of the human rights argument, the only thing that must be considered is whether or not the feelings of members of a designated or protected or privileged group have been seriously offended.  That is what it is all about.  Freedom of expression does not apply.

         If this were just an argument between one side and another, that would be fair enough.  However, according to the appointment, members of the Tribunal must have a sensitivity to human rights.  That, in our submission, is a bias toward one side.

         Years ago, when Human Rights Commissions were first created on a provincial basis, the rights protected were basically the rights not to be discriminated against in terms of employment, in terms of housing and on a limited number of criteria ‑‑ race, sex, colour, and so on.  Over the years, though, probably as a result of internal pressures within the human rights industry, as these types of discrimination become rarer and rarer, one has to justify one's job.  So there has been tremendous pressure within the human rights industry and from groups who benefit from it to expand these rights.

         These expansions have often been to the detriment of Charter rights.  For instance, a couple of years ago the British Columbia ‑‑

         MEMBER DEVINS;  But haven't those changes been legislative changes?

         MR. FROMM:  Yes.

         MEMBER DEVINS:  So they have been changes enacted by a duly elected legislature or Parliament, whichever it might be.

         MR. FROMM:  Indeed, but ‑‑

         MEMBER DEVINS:  I am just trying to understand where you are going in terms of being representative of a particular perspective.

         MR. FROMM:  I am trying to outline the ongoing conflict between group rights or privileges and Charter rights, particularly freedom of expression.

         A couple of years ago in a piece of legislation in British Columbia called Bill 33, which was amendments to the British Columbia Human Rights Act, it was argued that a provision not very dissimilar to section 13(1) was necessary to govern publications.  One of the government members argued at the time that this was necessary because the courts don't always do what we want them to do.  It was seen by the people who have a bias toward what is called human rights in terms of the Human Rights Act that the courts could not always be counted on to suppress Charter rights, in this case freedom of expression.

         Moving along, in the last couple of years we have seen cases in Ontario and in New Brunswick which have been decided and in Saskatchewan and in British Columbia which have not yet been decided, where there have been complaints against mayors for failing to proclaim either Gay Pride Day or Gay Pride Week.  In the case of the Mayor of London, Ontario and the Mayor of Fredericton, New Brunswick, the argument was made by the respondent, "I cannot do this because I do not believe in it.  You are forcing me to say something I don't believe in," or in the case of the Mayor of Hamilton, "You are forcing me to say something I don't think our community would approve of."

         In the cases that have been decided here in   Ontario and in New Brunswick, it was decided by a Human Rights Tribunal that the rights to freedom of expression would have to take second place to the argued freedom from discrimination.

         What I am submitting is that there is a conflict between the group rights that are championed in the Human Rights Act and the larger individual rights that are championed in the Charter.

         MEMBER DEVINS:  Haven't there also been boards of inquiry decisions, in particular out of B.C., where in fact Charter rights were applied?  Charter rights were applied to circumscribe a hate message right that had just been enacted in the B.C. Code.

         MR. FROMM:  I think Mr. Christie would be more the expert ‑‑

         MEMBER DEVINS:  Fair enough, but my understanding is that there have been cases ‑‑ and the Collins case, in fact ‑‑ where it was Charter rights and the Charter that was applied so as to interpret the Human Rights Code in a way that did not offend the Charter, which seems to go a little bit against your argument.

         MR. FROMM:  If that is a fair description of the case, you may well have a point there. 

         However, we are looking here at the terms of appointment.  The terms of appointment, considering the fact of the conflict between these groups rights which are not open to everybody and Charter rights, which are, the wording of the appointment would seem to suggest a leaning toward or a bias toward one side, which certainly creates on the part of the respondent a reasonable apprehension of bias.

         I am informed that in the appointment of a one-person tribunal in British Columbia, the criteria did not require her to be sensitive to human rights.  I suppose the only criterion was to have the confidence of the Lieutenant Governor.

         THE CHAIRPERSON:  The wording of the section that we are speaking of is really directed to a certain expertise.  We have to keep in mind that the appointments to the Human Rights Tribunal are not restricted to persons having legal qualifications; they are not restricted to lawyers.  Lay persons can be appointed to the Tribunal.

         Therefore, is the wording not consistent with signalling a certain amount of expertise or knowledge in the field of human rights, since they are there to determine issues arising from that legislation?

         MR. FROMM:  If that were the intention, Mr. Chairman, the wording seems extremely lame.  If what they wanted was that somebody be knowledgeable of the Human Rights Act or knowledgeable of some of the case law or precedents, perhaps that could have been stated ‑‑ simply "knowledgeable of the law in this area."  But that is not the wording.  The wording talks about sensitivity to human rights, which in the context here refers to the group rights in the Canadian Human Rights Act rather than the larger individual rights.

         There seems further prejudice from the fact that the group rights, so-called human rights, are not equally open to everybody.  For instance, had the Zundelsite attacked, let us say, the Liberal or Conservative or New Democratic Party and said that, if not all members, at least some of the leading lights were involved in a con job leading to high taxes to fleece the Canadian taxpayers for the purposes of making themselves rich through all manner of patronage appointments and so on and that this was to the detriment of Canadians, et cetera, no member of the Conservative Party or Liberal Party or NDP, as the case might be, would have a cause of action because political opinion is not protected.  It is not one of the human rights.  The Zundelsite or some other site could spread all manner of extreme or overblown opinions about a political group, and members of that group would have no comeback before a Human Rights Tribunal.

         However, every single Canadian human being has the Charter rights ‑‑ the right to freedom of speech, to freedom of expression, to freedom of assembly, to freedom of the press, et cetera. 

         In situations like this, where the terms of appointment point toward requiring members of the Tribunal to have a sensitivity, it really does seem that the legislation wants to stack the odds against the respondent.

         It has sometimes been argued that perhaps a lower threshold is appropriate here, because nobody would go to jail, et cetera.  I would suggest, though, that in terms of what the Human Rights Commission is asking for, there are very severe restrictions on the individual rights of the Respondent.  Should it be found that a site that is in another country, run by another person, should somehow be the responsibility of the Respondent and should the remedy sought by the Commission be imposed, there would be very severe restrictions on his individual rights and perhaps the individual rights of other persons to freedom of expression or perhaps to freedom of the press.

         I point in conclusion to the decision in the case of the public inquiry into the behaviour of the Royal Canadian Mounted Police in the APEC matter in British Columbia, when a member of the Tribunal was reported to have indicated that he thought the Mounties over-reacted.  That was enough for him to resign and for a superior court to stay the proceedings.

         THE CHAIRPERSON:  I am not sure that was the reason for his resignation, but nevertheless ‑‑

         MR. FROMM:  That is not to say that the individual in question might not, on hearing the evidence, have come to a different conclusion.  He did not say he was firmly of the opinion that the Mounties were absolutely in the wrong, but there was in that case a previously expressed opinion and a reasonable apprehension of bias, and there has been a stay in the proceedings.

         Here there is no reflection on any opinion expressed by the members of the Tribunal, but the very appointment seems to indicate a prejudice to one side, a prejudice in favour of the group rights as opposed to the individual rights of the Respondent.

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

ARGUMENT ON BEHALF OF THE CANADIAN HUMAN RIGHTS COMMISSION

         MR. TAYLOR:  You have the written materials from the Commission.  It is clearly our position that section 48.1(2) does not apply to you, and I think your comments this morning on the other motion indicate that you understand this, and I won't take you through it.

         With this new legislation there has been a lot of confusion with some of the language.  I think the language turns, as you pointed out in your ruling, on appointment to the Human Rights Tribunal Panel which is one animal and then appointment to the Tribunal sitting here which is another thing.

         In the new legislation the appointments are made to an entirely new animal called the Human Rights Tribunal and, once you are on that, you are on that.  Those qualifications apply to that new appointment.  They clearly do not apply to you because you were appointed at a time when there were no qualifications.

         MEMBER DEVINS:  Mr. Taylor, do you plan on dealing at some point with Mr. Christie's argument that our very appointment gives rise at that point in time, by virtue of our having met those qualifications, to a reasonable apprehension of bias?

         MR. TAYLOR:  I will.

         THE CHAIRPERSON:  Just in case.

         MR. TAYLOR:  Just in case.

         I want to point out as well that the transition provisions allow for the permanent survival of the previous enactment which is permanent only in the temporal sense that eventually we will not need those transitions because the number of appointments will run out.

         Clearly, the legislature thought this through.  They recognized a potential for problems and, as you pointed out this morning, Mr. Chairman, clearly they made those provisions so that there would be continuity.  This enactment clearly is facilitated by those special provisions to maintain this Tribunal and any others that were sitting.

         To respond to Mr. Christie's paranoid suspicions about the Commission owning the referees, perhaps to Mr. Christie, in the times we have been in court together, the fact that the Commission wins may fuel those suspicions, but it is not the case.  I think, if we owned the referees, we would win every time and, unfortunately, that is not true.

         To understand rights and how they work, you have to look at the Act and its purpose.  The language that has been used ‑‑ individual rights and group rights ‑‑ and misused as well, will find some meaning in the purpose of the Act.  Mr. Christie does make a lot of individual rights under the Charter.  You will see in the purpose of the Act "all individuals should have an equal opportunity" et cetera.  This applies to all individuals.  All individuals should be free to make for themselves the choices that will lead to their determination of the good life without discrimination.

         The "without discrimination" part is the public policy of Canada; the public policy is one of non-discrimination.

         The purpose of the Act sets out that all people have equal opportunity to be free to pursue their version of the good life without a barrier being placed and there can't be a barrier because of a discriminatory practice based on these things ‑‑ race, ethnic origin, et cetera.  Perhaps the majority of Canadians do not have these barriers placed; they may not need the protection of the Act because they do not have barriers placed because of disability.  It is not a specialized group that is coming out of this; it is a recognition of difference.

         Mr. Christie also wants to find in the Act somewhere a definition of human rights, and there is not such a thing.  The contest, if you will, between individual rights and what are being called here group rights is a false contest.  Mr. Zundel's rights are being protected here as much as the Complainants' rights.  The Commission, mandated by the statute, is presenting material for your inquiry in the public interest.

         The idea that that section, sensitivity to human rights, is going to make you decide in our favour is flat out wrong.  There is no qualification examination for you that I know of; the Act is silent on how you are chosen other than by that qualification.  As I said in my written submission ‑‑

         THE CHAIRPERSON:  There is no qualification, but what is the interpretation?  What meaning can you ascribe to those words, statutory interpretation?  It was not in the old Act.  What significance is there in connection with the interpretation of what the policy of the Act is by the addition of those words?

         Generally, because words put in a statute are not necessarily always crystalline in their meaning, one has to search for the purposes of the wording of a statute.  Sometimes they are merely surplus; sometimes the significance of the words measured against the whole scheme of the legislation is benign.

         What do you say those words are intended to mean?

         MR. TAYLOR:  I think, to maintain the integrity of the Act and in keeping with the establishment of what is now, in short form, a permanent Tribunal, the permanence of the Tribunal is dependent upon expertise, and we are clearly moving away from an ad hoc panel consisting of laypersons as well as lawyers to a more permanent situation, the more permanent situation to facilitate the smooth completion of this complaints process.  As a permanent body, the expertise is necessary to make these things run smoothly.

         I think the other parts of the Act that fit into that are that the Chairperson of the Tribunal can appoint a single member.  I think that is what we will see happening, because the single members will be sufficiently expert to be able to run these things through in much the same way as the Canada Labour Board.

         That is what I see in that section, to maintain the integrity of the Act and to make it quicker.  I think it is clear that these amendments, and even the previous ones, came as a result of a recognition by Parliament that things were not working as smoothly as they should have.  I think they were not working as smoothly as they should have because in the beginning, quite frankly, I think the legislature passed this type of law thinking that it would not be needed in 20 years.  The exact opposite has happened, in fact.  The jurisprudence has grown and the cases have become much more complicated.  I think at the beginning they envisaged a two- or three-day hearing.

         THE CHAIRPERSON:  Mr. Taylor, we are going to rise at 12:30 today for certain things that the Tribunal has to look after, so we will take our morning break now.

‑‑- Short Recess at 11:15 a.m.

‑‑- Upon resuming at 11:35 a.m.

         THE CHAIRPERSON:  Before you continue, Mr. Taylor, my colleague Devins heard me say "May 25, 1997" as to the ruling on the relevance of truth.  It should be "1998."

         MR. TAYLOR:  In our written submissions you can see that the Commission takes the position that the new section 48.1(2) does not create a reasonable apprehension of bias.  I don't want to go through all of that again, but just note the general test for bias from the National Energy Board case which you had before you in the other bias motion.

         I think it is important, if we are talking about the integrity of the new Act and the determination of sensitivity to, interest in, experience, et cetera, that these Tribunals are directed to interpret the Act broadly to fulfil its purpose.  In understanding that the section "with experience, expertise, interest in and sensitivity to" governs the whole panoply of human rights, there is nothing in the Act to suggest that this does not encompass the right to freedom of expression.

         Again, setting out these areas of subject matter in no way dictates what your beliefs should be.  It is your conduct that is important.  From the Newfoundland Telephone case, it is clear that the Supreme Court of Canada does not see a problem with expert tribunals.  As Member Devins pointed out earlier, the whole purpose of administrative tribunals is to have expertise in these areas.

         As Justice Cory wrote in the Newfoundland Telephone case, the Court does not see a problem with certain people on boards having certain views.  He expressed confidence that these people who are sitting will "strive for fairness and a just result."

         Also, it is clear from cases that you have had before you as well, Ringrose and French, in the discussion of the other bias motion, that the reasonable apprehension of bias cannot be entertained when the statute provides some overlapping.  If it is implicitly accepted by the legislature, then there cannot be any bias, and that is what those cases stand for.

         Again, in the way that the amendments and the new Act are drafted, it is pretty clear that Parliament wanted to move to a permanent Tribunal, for reasons of efficiency, and an expert Tribunal, again to aid in the efficiency.  When they passed the amendment mandating that the members of the new Tribunal have this expertise, they were doing it in conjunction with all the other parts of the Act, so it hangs together.  They clearly thought it through; it is not something that they left dangling.

         I think it is also clear in some of the other changes that they were trying to fold in together efficiency and the fact that the Chairperson of the Tribunal will appoint a single member when cases are not that difficult or complicated, hopefully to resolve them quickly.

         I just want to go back and cover one or two things that Mr. Christie said.

         It is almost ridiculous to think that you would be taken for sensitivity training.  There always has been, since the 1989 amendments, an arm's-length relationship except in certain procedural payment things which have now been solved.  The Commission and the Tribunal are separate, distinct entities, and there is always a big separation.  There is no way the Commission gets a chance to pick the Tribunal.  We can't shop around for a good one.  We don't have any control like that.  It is just out of the question that the Commission could decide not to show up on day one and that we would have to go to a new tribunal.  We can't do that.  It is not like judge shopping, which can be accomplished.

         The idea that we are of one mind on this is ridiculous.  As I said earlier, if we owned the referees, we would win all the games, and we unfortunately do not.

         Those are my submissions.

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

ARGUMENT ON BEHALF OF THE TORONTO MAYOR'S COMMITTEE

ON COMMUNITY AND RACE RELATIONS

         MR. EARLE:  I am handing up to you a copy of a Book of Authorities and also copies of the French and Ringrose cases which were just referred to by my friend Mr. Taylor.

         Mr. Chairman, I would ask that you accept my submissions as being not only on behalf of the Mayor's Committee but also on behalf of the other Complainants, Sabina Citron and the Canadian Holocaust Remembrance Association.  I have agreed to pinch hit for them today.

         My first submission to you, Mr. Chairman, is that I obviously adopt the submissions of the Commission with respect to their position on the application of the amendments to the Tribunal as well as with respect to their position on the reasonable apprehension of bias.

         In the event that you do not accept the Commission's submission that the application of the amendments does not apply to you and, therefore, the Respondent's argument does not apply, we would echo the Commission in saying that no reasonable apprehension of bias exists because there is no reason that section 48.1(2) should have any effect on the Tribunal Members' obligation to strive for fairness and a just result.

         The new issue that I want to address with you today, Mr. Chairman, is the issue of the doctrine of necessity in the event that you do find that there is reasonable apprehension of bias.  I would like to refer you to tab 2 of the Book of Authorities that I have put before you where you find the P.E.I. Judges Reference, which has been discussed earlier this year in argument.  I direct you to page 11.  You find there the test that is set out in the decision.

         At the bottom of the first column it states:

"Although there is a general rule that a judge who is not impartial is disqualified from hearing a case, there is an exception to this rule that allows a judge who would otherwise be disqualified to hear the case nonetheless, if there is no impartial judge who can take his or her place.  The law recognizes that in some situations a judge who is not impartial and independent is preferable to no judge at all."

         It is our submission, Mr. Chairman, that this doctrine would apply in the event that you accept Mr. Christie's submissions to you that there is no tribunal, past, present or future, which can escape from reasonable apprehension of bias arising from the operation of section 48.1(2).

         The decision goes on to discuss the principles to be applied to the scope of the rule.  I am making the assumption that you have a copy of the written submissions of the Complainant Sabina Citron.  If I could direct you to page 3 of that, paragraph 9 states:

  "The doctrine of necessity applies to administrative tribunals just as it does to courts.  It prevents the disqualification of an adjudicator on the basis of a reasonable apprehension of bias where:

(a)  the cause of the disqualification is not due to a voluntary act of the adjudicator;

(b)  the disqualification would lead to an inability to discharge public functions leading to a failure of justice; and

(c)  no positive substantial injustice would be occasioned by the operation of the doctrine."

         This is a synopsis of principles which can be found at page 13 of the P.E.I. Judges Reference.

         Going through those principles in order, Mr. Chairman, clearly the disqualification that is complained of here is not due to an involuntary act of the Tribunal; it is due to an act of government in amending the Act at this time.

         Turning to the second principle, it is the submission of the Respondent that this disqualification would apply to all tribunals.  It is, therefore, my submission that that would lead to an inability to discharge public functions, resulting in a failure of justice and the frustration of the intent of the statute.  This is not only a public problem in the sense that it renders all tribunals unable to hear and determine human rights complaints re serious issues of discrimination, but there is obviously also a private detriment here in the sense that the Toronto Mayor's Committee and Ms Citron, who have been involved at this point in a very lengthy hearing ‑‑ we are coming up our second-year anniversary soon ‑‑ would be deprived of the benefit and the effort that has gone into that hearing to date.

         THE CHAIRPERSON:  It would render the whole Act non-functional.

         MR. EARLE:  Yes, that is correct.

         Mr. Taylor has mentioned French and Ringrose, and I would also like to mention them here, to the extent that they make clear the importance that where the legislature has spoken or, in this case, Parliament has spoken with respect to the operation of an administrative tribunal, that direction should be respected by the court and that necessity requires that, where a reasonable apprehension of bias, in this case institutional bias, would result in a frustration of the statute, that should not occur.

         With respect to the last principle outlined in the case, "No positive substantial injustice would be occasioned by the operation of the doctrine," as clearly admitted by Mr. Christie in his submissions, the members of the Tribunal have not changed and, at least from his perspective, any inherent bias that you may have had has not changed.  In his submission, the statute has merely made explicit what was implicit before.

         In that case, I see no substantial injustice here in continuing with the Hearing.  There is no further prejudice to the Respondent in the event that you find that a reasonable apprehension of bias exists.

         The Respondent has fully participated in the Hearing to date which, as I mentioned, has been a very lengthy hearing, and it is my expectation that he will continue to do so.

         Those are my submissions, Mr. Chairman.

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

ARGUMENT ON BEHALF OF SIMON WIESENTHAL CENTER

         MR. ROSEN:  I take exception to what Mr. Christie says about the Act not being Charter-sensitive or the exercise of functions under the Act not being Charter-sensitive, including the appointment of Tribunal Members.

         In my respectful submission, one cannot bandy about the provisions of the Charter without remembering what the Supreme Court of Canada said in the De Couteau case, which is that the provisions of the Charter are equal; none is greater than the other.

         As it happens, the Act incorporates the provisions of equality recognized by the Charter and expands upon it for purposes of the Act to proscribe discrimination not only on the basis of race, national or ethnic origin, colour, religion and age, but also sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

         Persons appointed to the Human Rights Tribunal under the Act, in my respectful submission, not only must have experience now in human rights matters; they must also have some expertise in the area.  They must also have an interest in it, and the words "sensitivity to" do not mean a bias toward.  Rather, it is a sensitivity to the issues raised whenever an allegation of a violation of human rights is raised.

         For example, in this particular case, one of the things that you are going to have to decide is whether or not the Respondent merely exercised his constitutional right to freedom of expression in a manner that did not infringe other people's rights of equality, in particular other persons' rights not to be discriminated against.  Sensitivity, in my respectful submission, encompasses the spectrum of issues that arise in human rights, and it does not focus on a particular bias.

         By having expertise, experience, interest in and sensitivity to human rights issues, it also permits the members of this regulatory body the ability to understand how a person's conduct, a person who perhaps does not have those same experiences or sensitivity and so forth, might discriminate, or might not discriminate, as the case may be.  It is not just with respect to religion; it is with respect to all of the things under the Act.

         It is a difficult job for someone who has no experience to do.  For example, one has to deal with many aspects of a multicultural society where everyone is by the Charter deemed to be equal and to balance all of those interests.  In my respectful submission, it is not only well within the powers of Parliament to pass this sort of legislation; indeed, it is mandated.

         If you look at other sorts of tribunals, such as, for example, the Labour Relations Board, people who are appointed to those boards have not only experience and expertise and have a demonstrated interest in labour relations, but also sensitivity to what goes on in the work force.

         At the same time, for example, the Ontario Legislature recognized that lawyers do not have a corner on the market of issues relating to the interaction between lawyers and the public.  In disciplinary matters, in order to inject a certain degree of public sensitivity, they expanded the composition matter of the Benchers to allow for lay Benchers to bring that additional perspective, if you will, to the various tribunals that are mandated by the Law Society Act.

         In my respectful submission, there is nothing wrong with this provision.  In fact, I would respectfully submit that its very existence often inures to the benefit of respondents in most cases.

         Those are my submissions.

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

ARGUMENT ON BEHALF OF B'NAI BRITH

         MR. KURZ:  This very false dichotomy between the alleged group rights under the Human Rights Act and the individual rights under the Charter ‑‑ and I know that some discussion has already been raised with regard to section 15.  There is also section 27 rights that are multiculturalism rights under the Charter.  I am not aware of any case that has allowed for free-standing applications based on section 27, but at the same time section 27 is another interpretive guide that can be looked at in order to look at group rights under the Charter.

         Furthermore, it may well be argued that complainants have individual rights under the Charter that have to be dealt with by a Human Rights Commission.  It can be argued that there are section 7 rights that complainants have when they are before a Human Rights Tribunal.

         To assert simply that there is kind of dichotomy makes no sense.

         Second, Mr. Christie was saying, "I would raise no argument if all they required was a knowledge of the law and due process," or something like that.  That would lead, I suppose, to a different kind of bias because that would make all the members of the Tribunal necessarily lawyers.  Member Jain is no longer on the Tribunal for reasons that are unrelated to what we are discussing, but that would eliminate that kind of input as well.

         I don't have to repeat the arguments with regard to the fact that sensitivity is not bias, but it simply makes no sense to say that being sensitive to human rights in the broad sense ‑‑ and both sides can have human rights ‑‑ somehow or other it makes you biased.

         THE CHAIRPERSON:  Mr. Christie, please.

REPLY ON BEHALF OF THE RESPONDENT

         MR. CHRISTIE:  To begin with, I would like to suggest that Mr. Fromm's remarks to the effect that courts cannot always be counted on to do what we want them to is a classic example of exactly why Human Rights Tribunals should not be created as politically correct courts and they should not, in essence, be given the mandate that makes them politically correct courts or having specific interest in one side or the other of the debate.

         Member Devins mentioned the judgment of Nitya Ayer in relation to the Collins case in finding that the actual remarks did not cross the line.  I read that judgment.  First of all, I don't think it upholds any Charter right.  I think it specifies the description or identification of the provisions of section 7(1)(a) and (b) of the British Columbia Human Rights Act.  It reads them somewhat narrowly ‑‑

         MEMBER DEVINS:  Didn't she do that, Mr. Christie, precisely in response to freedom of expression rights set out in the Charter?

         MR. CHRISTIE:  Yes, but my concern is that she is not subject to a mandatory, statutory requirement of sensitivity to human rights.  The reason she may have come to her decision is that she had the capacity to view Charter rights as somehow equally important.

         MEMBER DEVINS:  Are you suggesting that had she, in fact, been able to be qualified under this section, she would have reached a different conclusion?

         MR. CHRISTIE:  She may very well have.  The fact of the matter is that she was not required to meet the qualifications of the Canadian Human Rights Act as of June and, therefore, Mr. Collins won.

         MEMBER DEVINS:  Not "therefore."

         MR. CHRISTIE:  Maybe not "therefore," but he did as a result.  If you can call losing $200,000 winning, he won, or his employer won.

         The Chairperson asked:  Does the wording of section 48.1(2) point to a specific expertise?  That question, in my submission, must be answered precisely as to what it says.  Mr. Kurz said that sensitivity does not mean bias.  What does it mean?  In my submission, there is no other logical conclusion than that it means a favourable disposition toward.  It does not merely require knowledgeability, but sensitivity to human rights.

         What is the accused before this Tribunal for?  He is alleged not to have been sensitive to the human rights of Jews.  Therefore, the very issue in question is sensitivity to the human rights of Jews.  If he had been as sensitive as this section now requires, he would not be subject to a complaint.  He is, in effect, accused of being insensitive to human rights, and you are mandated to be sensitive to human rights.  It seems to me that the conclusion is quite logical and flows very clearly from that.

         The subject of the APEC Inquiry was brought up by Mr. Fromm, and the remark was made that the Chair did not resign for reasons of one kind or another.  It is my submission that the accusation was that he was sensitive to the concerns of the protesters and insensitive to the concerns of the RCMP, to put it in blunt terms.  Therefore, he was disqualified.

         The very qualifications for this Tribunal now are ‑‑ and you have met those qualifications, by definition ‑‑ to be sensitive to the concerns of human rights.

         The argument was made by Mr. Taylor, first of all, that it does not apply because you are sitting as a Tribunal under the old provisions where no such criteria were met.  It might be argued that you are sitting with your old hats although you are appointed with new hats as well.  That may be so, but it doesn't change the heads that wear the hats.  It is the contents of the heads that wear the hats that have been defined by the provisions of the Act in the way they were.  You are the same people, whether you are appointed under the old provisions or the new.  The new criteria that you have met have defined your qualifications and made explicit what some people may have thought was implicit, but it certainly changed anything from a subjective perception to an objective reality.

         It is only when we have an objective reality that we can object to a reasonable apprehension of bias.  Just because we have what some people refer to as paranoid suspicions is no basis for concern, and it never, of course, would be raised on that basis.

         Although you were appointed under the old Act, having met the criteria of the new Act, the qualifications apply.

         The thrust of Mr. Taylor's argument, it seems to me, was that the legislature has thought this through and has mandated this.  The legislature thought the legislation through before the MacBain case, and it was determined by a court that it had thought it through in such a way that it created a reasonable apprehension of bias, and the legislation had to be changed.  So it was changed.

         The investigative process and the determination of a prima facie complaint was separated from the adjudication process, which took it one step closer to being impartial.  That was the first time the legislature had thought it through and had been wrong.

         The second time the legislature had thought it through and had been wrong was revealed in the judgment of Madam Justice McGillis in the Bell case.  It is interesting that in both cases the legislature realized it was wrong and changed the legislation.  As of June they reacted to the Bell case, and much earlier they reacted to the MacBain case.

         Of course, we were out of time for our objection to the Bell case, it was said, because we had gone along with the provisions as they had stood.  It is my submission that that argument cannot apply to this complaint because we brought these in the summer when there was no Tribunal, and the legislation changed after the Tribunal had finished sitting for the summer in 1998.  We brought them at the first opportunity, and they were put over to this time to deal with.

         Mr. Taylor also said that the legislation requires that persons be treated without discrimination.  Of course, individual rights are defined in the legislation in terms of group rights.  You have individual rights not to be discriminated against because you are a member of a group.  It does not provide any rights to persons who cannot be categorized into one of the protected classes.  Any concept of individual rights that is expressed in the Canadian Human Rights Act is defined by its own terms, based upon a group criterion.

         Mr. Taylor said, "We would win every case if we picked the adjudicators."  You don't have to pick the adjudicators any longer; they are picked, by definition, sympathetic.  As of June 30, we don't know how many cases they have lost ‑‑ I doubt very many since June 30.  The chances of losing them are much slimmer now.  If the sensitivity criterion is applied, then those like the Respondent here who are not sensitive to human rights of some group will definitely find themselves contrary to the sensitivities of the Panel who, by definition, have been selected with that existing sensitivity.

         THE CHAIRPERSON:  Does the admonition that I say Crowns should follow, that the Crown never wins and the Crown never loses ‑‑ is there an embedded bias in the way the Commission defends a case?  Do they win or lose?  We are talking about winning or losing.  I am not sure that there is a policy in the Commission that it wins or loses.  It is here to assist the Tribunal to come to a conclusion, I suppose.

         MR. CHRISTIE:  It is true that the Crown has, theoretically, the obligation to uphold the law regardless of favour or advantage or disadvantage to the accused. 

         The specific legislative scheme of the Canadian Human Rights Act does not cast the Commission merely in a neutral role.  It is to administer the Act, which is to uphold human rights as defined by the Act itself.  It has a more aggressive mandate, in my submission.  It is clear that my learned friend Mr. Taylor sees his position as winning and losing.  His own remarks were very clearly coloured with the remark, "We don't win every game."  I take that to mean that sometimes he loses.

         I don't know how many cases, if ever there has been a case, under section 13(1) the Human Rights Commission has lost.  I don't know of any.

         The fact that words are put in a statute does not lend them, after the Charter, any aura of legitimacy at all.  Parliament used to be incapable of making errors.  Parliament could do no wrong.  After the Charter, Parliament has obviously made many mistakes and continues to make mistakes.

         The existence of a statutory provision and the consequence of that provision being declared creative of a reasonable apprehension of bias could never be corrected.  There would be no MacBain case; there would be no Bell Canada case if the defence of necessity could always be invoked.  It would never change.  There would be no judgment ever possible that could not be defeated by the argument, "But, if you held this way ‑‑-".  There could be no tribunals at all.

         If the legislation had been enacted to say, as it does here, sensitivity to human rights and had defined it in those terms with the clear implication that we say exists in the words, it could never be rectified.  The courts could never interfere.  No one could ever change it.  Parliament would be supreme.

         Parliament was supreme before the Charter, but Parliament can be wrong.

         MEMBER DEVINS:  Mr. Christie, if you are not invoking Charter rights, can't the doctrine of necessity then apply?

         MR. CHRISTIE:  Fundamental justice under the Charter goes to the heart of the jurisdiction of this Panel.

         MEMBER DEVINS:  But that is what the doctrine of necessity deals with.  It deals with issues of fundamental justice and issues of bias and issues that go to jurisdiction.

         MR. CHRISTIE:  If we are dealing with the case of Prince Edward Island and the Provincial Court, that went to the issue of whether the legislation created a reasonable apprehension of bias.  It did not involve, in my submission, the principle that a reasonable apprehension of bias can have never any effect if it would invalidate a series of tribunals.  It was actually dealing with all the provincial courts of Quebec, Manitoba, Saskatchewan, Alberta and Prince Edward Island.

         Can it be said that the necessity to uphold the existing legal decisions of all those courts is comparable to the necessity of continuing a Canadian Human Rights Tribunal?  It is my submission that there is quite a difference between all the existing and previous judgments of the provincial courts on criminal matters in all those provinces and the continued existence of the Canadian Human Rights Tribunal.

         MEMBER DEVINS:  Is it your submission that the doctrine of necessity can never apply to Human Rights Tribunals?