MR. FROMM: Mr. Chairman, in his submission Mr. Freiman went through several cases before the Federal Court, as I understand it, and outlined tests for intervenor status. The first of the tests that he referred to was that the intervenor would have a substantive issue in the proceedings or be adversely affected.

It is certainly my submission that the control of the Internet is a very substantive issue. It certainly will affect my personally. I am an avid Internet user, and our organization sees itself as a representative, in the fulfilment of our brief, of Canadians who are very concerned about freedom of speech. The Internet is very much new territory as we see it, probably the greatest invention in terms of communication since Gutenberg's invention of moveable type. It is so far a wild, woolly and uncontrolled medium.

My late instructor at the University of Toronto, who was a great inspiration to me, Marshall McLuhan, in his analysis of the media has said that the medium is the message.

As this Tribunal has before it the unique challenge or opportunity to make a ruling on an attempt to control or perhaps even restrict this medium, I think I and certainly the Canadian Association for Free Expression have a very substantive issue.

The suggestion was also made in Mr. Freiman's submission to you that we have shown no particular interest in this issue in the past. Presumably, we woke up one day a few weeks ago and decided, "Wouldn't it be nice to go and take part in the Tribunal?" This is certainly not the case. We have been concerned from the very beginning of the procedures against the defendant here. We have run ads in The Globe and Mail and British Columbia Report and in other media trying to alert, to the extent that our very limited resources can, concerned Canadians about the very dangerous possibilities of what might happen at these proceedings. So we are certainly not a johnny-come-lately with no particular background in this.

Toronto, Ontario

‑‑- Upon resuming on Monday, December 15, 1997

at 10:36 a.m.

THE CHAIRPERSON: Good morning, ladies and gentlemen.

We will deal first with the application for interested party status by the Canadian Association for Free Expression Inc. Is Mr. Fromm here? Would you come forward, Mr. Fromm.

You don't have counsel?

MR. FROMM: I don't.

THE CHAIRPERSON: Do you intend to if this application is granted?

MR. FROMM: No.

THE CHAIRPERSON: Please speak to this matter so that other counsel can address it as well.

ARGUMENT ON BEHALF OF CANADIAN ASSOCIATION FOR

FREE EXPRESSION INC.

MR. FROMM: Members of the Tribunal, my name is Paul Fromm, and I am a Director of the Canadian Association for Free Expression which is incorporated under the laws of the Province of Ontario as a non-profit, educational organization. We were incorporated by letters patent in 1981.

Our brief is to try to maximize freedom of speech and expression and association, protections of the Canadian Charter of Rights and Freedoms. To that end, we publish a regular newsletter on freedom of speech issues.

We have presented briefs to various government bodies, including the Ontario Legislature when it was considering amendments to the Ontario Human Rights Act in the late 1980s. We have made submissions to federal government bodies, including the federal government when it was considering regulations in respect of customs powers to interdict so-called pornography or hate literature. We have made numerous submissions to the provincial legislature in Ontario and to the House of Commons with regard to free speech matters.

In my own right, I have written extensively on this matter and produced a broadsheet on what we call customs censorship. I have produced a somewhat longer paper on attacks on teachers with regard to freedom of speech. In addition to that, I have written a number of articles, including one published recently in the United States in a publication called Conservative Review, which dealt with what we saw as a somewhat capricious and arbitrary behaviour of Canada Customs with regard to seizure of material that was deemed to be either pornographic or to constitute hate.

We see ourselves as a non-partisan group. We have backed, for instance, in British Columbia the complaint of Little Sisters Book Store, a book store that deals primarily with gay and lesbian literature. They have run into repeated problems with Customs Canada. In Ontario we have backed, for instance, the efforts by Minister Louis Farrakhan to come to Canada. His efforts to enter this country were under attack by groups that appeared to support censorship. Although many of our members would probably not have much in common with Minister Farrakhan's beliefs, we lobbied Madam Robillard, the federal Minister of Immigration, to permit Minister Farrakhan into the country.

We have also taken quite a strong stand in opposition to the federal government's legislation to curtail retail advertising of tobacco products.

We would feel that we are non-partisan in our support for freedom of speech and freedom of expression.

Why we seek interested party status is that we feel that these issues will come very much before your Tribunal. We have a long experience in freedom of speech issues, and we feel that that is something in which we might be of some assistance to you in making your decision.

On a personal basis, I have particular compassion for people who find themselves under attack for a non-violent expression of their views, having myself been victimized by at least one of the groups that already has interested party status before your Tribunal. I am a former teacher, a person who has a B.A. in English Literature and an M.A. in English Literature and Linguistics, a B.Ed. and further graduate studies mostly in Linguistics. I suspect that on a personal basis I might be of some assistance in questioning witnesses from that point of view in terms of the precise meaning of language. I bring a background not just as a historical linguist but as a person with particular training in analyzing text for meaning.

Those are my submissions to you.

THE CHAIRPERSON: Just a couple of questions, Mr. Fromm.

Your written submission is brief. There is no mention of the membership. What is your membership?

MR. FROMM: Twenty-five hundred.

THE CHAIRPERSON: That is from where?

MR. FROMM: That is across Canada.

THE CHAIRPERSON: Does it have a board of directors?

MR. FROMM: It does.

THE CHAIRPERSON: How many on the board?

MR. FROMM: Five.

THE CHAIRPERSON: Are they elected by the membership?

MR. FROMM: No.

THE CHAIRPERSON: If you were given status, would you intend to be here for the duration of the Hearing?

MR. FROMM: That would be my intention.

THE CHAIRPERSON: Are you aware of the conditions under which other intervening parties have been allowed status?

MR. FROMM: I am not.

MEMBER JAIN: What is your membership fee, sir?

MR. FROMM: Fifteen dollars a year.

MEMBER JAIN: Why at this stage? Why not earlier?

MR. FROMM: I personally did not have the time; I had other commitments at your previous Hearings. I was only able over the summer to determine what the procedure was. We were under the impression that we would have to retain counsel. As we don't get government grants, our means are fairly modest.

THE CHAIRPERSON: Does anyone wish to speak in support of this application? Mr. Christie...?

MR. CHRISTIE: I would, but I would like to do so after the other application, if I may.

THE CHAIRPERSON: I am going to hear from those who are opposing this application, so perhaps you should speak in favour of it now.

MR. CHRISTIE: All the more reason why I would rather hear what they have to say, since I will be the only one supporting it. They certainly out-number us.

THE CHAIRPERSON: Are we going to assume that? Maybe someone else is supporting it.

In any event, we will hear from people who may be opposing this application. Does anyone wish to speak to this application? Mr. Freiman, please.

MR. FREIMAN: The Commission will speak to oppose the application but, in my submission, it is proper for those who support the application to make their views known first.

THE CHAIRPERSON: I have suggested that, but Mr. Christie ‑‑

MR. FREIMAN: It seems to me improper to allow him to arrogate to himself the right to respond. If he is not going to speak now, he should not be speaking on this application.

THE CHAIRPERSON: Let us hear from you now, Mr. Christie, please.

ARGUMENT ON BEHALF OF THE RESPONDENT

MR. CHRISTIE: The present situation in these proceedings, as evidenced by the last remarks really, has all the moral and intellectual balance of a gang rape. We have four lawyers for the Commission against our position. We have the Canadian Jewish Congress who came in on October 14. No one questioned them about why they were late. No one asked them what their membership fee was. No one asked them whether they had an elected board of directors. No one asked them anything about their activities to question their rights to be here in the same sense as the last person was asked.

B'nai Brith is another intervenor. They are not supporting our position; I am sure of that.

The Canadian Holocaust Remembrance Association is not supporting our position. The Simon Weisenthal Center is not supporting our position. The Toronto Mayor's Committee is definitely a complainant, a party; they are against us. Sabina Citron has her own standing in personam, I suppose, as a complainant.

I count six of those, and each of them has one or two lawyers. Then there is Mr. Zundel, myself and my associate.

What could be the harm? When the ultimate arguments are made, it will be like the waves of the sea. The roar from these many-sided supporters of the complaint will overwhelm us, without a doubt. Even with two intervenants of a pathetic nature, there will be no need to fear that there will be anything like equality. There is no need to fear that we will be given a chance to win. The people who have so much interest and so much influence to be here need not fear.

It might create a slight appearance that there is an attempt at balance, and that would not be a bad thing. It would create an understanding that the powers that be are concerned about balance and have a desire to allow it.

In my submission, if someone were to come along at this late stage, who had a representative capacity on behalf of Internet service providers, I would say likewise. If you are going to decide a serious question like the application of the section of the Human Rights Act to the whole subject of the Internet, it would be of great assistance to have somebody who really had experience in the field. I would be supporting their right, too, because this question should not be decided by such an unbalanced situation as presently confronts you.

I don't think, if either or both of the applicants who are now attempting to intervene or attempting to be parties were allowed, you still would have anything close to a clear insight into the complexity of the issue or the severity of the consequences if it is interpreted wrongly.

I would respectfully suggest that, really, there is no reason why in principle or in practice these two intervenants should not be allowed to intervene. If they are denied intervention ‑‑ not that they can have any great expertise, but they have another point of view, obviously diametrically opposed to those six-or-so other groups ‑‑ there is really nobody else who has even offered to attempt to defend one of the most important principles that we have to live by, in my submission. It should not really be just one man's fight or one lawyer's fight, as it apparently is and has been very often in the past.

It would be far better, in my submission, if the appearance of the imbalance were corrected to some extent, and it would not do any harm to the proceedings. After all, if you restricted the right to cross-examination to exclude other than parties or if you restricted the intervenant to making final submissions, that really does not impede the proceedings in any way. All these people who have been sitting here, most of them just watching and listening, no doubt will make their views known at the end.

When it happens, of course, you will have six points of view against us, and at least one of them is the result of four lawyers working together on it. I mean, really! In the old days of fair play, it would have been seen for what it is. It is so unbalanced as to be unfair. Even if it were only Mr. Zundel's rights at stake, it would be wrong. It is not just Mr. Zundel's. It is the whole issue of freedom on the one hand and state control on the other of an issue that is complex and technical and difficult.

Really, if I were in your position, I would be suggesting that perhaps you, yourselves, should call somebody with an objective expertise in the whole field. It is really that serious and that significant.

Thank you for hearing me.

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

ARGUMENT ON BEHALF OF CANADIAN HUMAN

RIGHTS COMMISSION

MR. FREIMAN: I would ask that my colleague present a number of cases that I will briefly refer to you. I already have before you from previous applications the case law that is relevant, but there is a couple of cases that deal specifically with matters that are at issue this morning.

I want to start by saying that there seems to be a confusion in the arguments we have heard this morning. I make no comment about the tone of the arguments, but the content of the arguments seems to confuse qualifications to assist the court as to a witness, whether a fact witness or an expert witness, and qualifications to be added as an interested party.

I start from the proposition that there is no elaborated case law under specifically Federal Court jurisdiction, but the cases that have considered the issue have to some extent started out from rule 13 in the Ontario Rules of Civil Procedure. The principles that are found there are principles that are also applied by most, if not all, of the courts that have considered the issue. I have given you a copy of the relevant rule, but it is also discussed in two cases and articulated in those two cases, the first being the Dieleman case decided by Mr. Justice Adams in 1993 and the second being the Doe and Information and Privacy Commissioner case decided by Mr. Justice Steele in 1991.

An opportune place to start is right at the end with the conclusions reached in Dieleman at page 39. With the application by the Canadian ‑‑ I have forgotten the name of the group, but the acronym is CAFE, which Mr. Fromm represents. Its intervention is clearly designed to be an intervention as a friend of the court and as a public interest group. Mr. Justice Adams said this about that kind of intervention:

"In summary, where intervenor status is granted to a public interest group, either as a party or as a friend of the court, at least one of the following criteria is usually met:

(a) the intervenor has a real, substantial and identifiable interest in the subject matter of the proceedings;

(b) the intervenor has an important perspective distinct from the immediate parties; or

It is interesting that in this case the proposed intervenor group was a group calling itself the Canadian Centre for Law and Justice which described itself as a non-profit civil liberties association whose object was to defend fundamental human rights and religious and civil liberties. It was attempting to intervene in a case dealing with abortion rights and it identified itself as a promoter of pro-life and pro-family causes.

Much like Mr. Christie's characterization of the reasons for granting status, it was urged on the court at that point that it would add to fair play to add a group on their side of the argument, especially a group with connections to the American parent group that could assist in the funding.

The court decided that the proper way of approaching it would be to look at the specific interests, to look at the issue of a perspective distinct from the immediate parties and to look at the nature of the intervenor group. There is some interesting discussion at page 38 of the reported case.

Before I go to that, perhaps I should deal with the first one which is a real, substantial and identifiable interest in the subject matter of the proceedings. That requires that the person be immediately and adversely affected. There is really no issue in this case that the group represented by Mr. Fromm is itself adversely affected in a way that is different from that of any other member of the public or any other group with an interest in the public.

THE CHAIRPERSON: It claims to be a body that is interested very simply in the issue of freedom of speech. Isn't that the focus of what the presentation is about?

MR. FREIMAN: That's right.

THE CHAIRPERSON: It is a question of whether this organization should be heard on that issue.

MR. FREIMAN: That's right. Its interest in freedom of speech does not qualify under the first branch of the test as a real, substantial and identifiable interest in the subject matter of the proceedings. In fact, it is quite similar to what the Reverend William D.F. Morris in that same case had said about himself, that he was interested in this matter and had made a lifelong study. The Court simply said at page 37:

"I am much in sympathy with Mr. Morris, and I think it admirable and desirable that concerned citizens should devote time and energy and substance to the advancing of causes in which they believe. However, I am not persuaded that his motion can be properly brought within the ambit of Rule 13 without giving to that rule an interpretation much broader than it has heretofore received. Mr. Morris has not demonstrated either an interest in the subject-matter of the proceeding, ‑‑

In this case, that would be the Zundelsite.

"‑‑ or that he may be adversely affected by the judgment, save as any individual Canadian might be affected. However desirable it might be that every citizen should be heard from, it is obviously impractical to give that effect to the rule."

So it is not under the first branch. The question then is: Does the intervenor have an important perspective distinct from the immediate parties? That is where I was going to get to page 38.

The Stadium Corp. case was a case dealing with the use of exotic animals in some of the events that the Skydome Stadium was to use. The Ontario Society for the Prevention of Cruelty to Animals had asked to participate. At the middle of the page, opposite "d", the court held:

"‑‑ the Ontario Society for the Prevention of Cruelty to Animals (the Society) sought to participate in a challenge to a municipal by-law restricting performances involving exotic animals. In ruling against the Society's intervention, Archie Campbell J. concluded that the proposed intervenor would not 'add significantly to the legal position' of the other parties representing similar viewpoints and interests."

In my submission, we have not heard anything today that would indicate that the position being advocated by the group represented by Mr. Fromm is in any way different from the position being advanced by Mr. Christie's client. In fact, to the contrary, the arguments being raised by Mr. Christie take it as a starting point that the perspective will be identical and that the arguments will be similar.

The court went on to say:

"‑‑ on the basis of the material filed to date, there is every reason to believe that the issues of freedom of religion, freedom of expression and the ramifications of abortion from both pro-life and pro-family perspectives will be adequately canvassed by the existing parties. The CCLJ has also stated that it has resources which the defendants may not have."

That was not held to be sufficient.

In fact, when the Canadian Holocaust Association in the Finta case asked for status, it was denied in that case because it was held that there would be adequate representation for that same point of view.

We go farther then and ask: Is the intervenor a well-recognized group with special expertise and a broad, identifiable membership base? In my submission, the answer is: No, it is not a group that has been recognized. It has never been granted intervenor status in any previous proceeding. We heard this morning that it is, in fact, a group of five people who solicit contributions and that for $15 you can become a member, but you have no vote in terms of the direction. In my submission, what the evidence really shows is that it is a group of five people who are asking for intervenor status in these proceedings and that that would be inappropriate.

Overall, just to bring the matter full circle, the issue really comes down at the end to also taking into account the interest of an expedient disposition of this matter and of not sidetracking us. Much of what we heard, in my submission, indicates that there is a significant risk, bordering on a probability, that adding this particular party will expand the lis, will expand the nature of the arguments to be presented. We have already heard of personal involvement that the representative of the proposed intervenor has had with similar issues. We have heard the kinds of thing that he proposes to bring forward. In my submission, what we will get is an expansion of the issues, an expansion that is unwarranted and unnecessary.

If the group represented by Mr. Fromm has interesting and important submissions to make on linguistic matters, Mr. Fromm can be called as a witness. If it has a particular perspective of an evidentiary nature that would be of assistance to the Tribunal, Mr. Fromm can be called as a witness. There is nothing to indicate that there will be any benefit to adding Mr. Fromm and his group, especially at this late date, when the Commission's case is almost in, to add to and to expand the issues and potentially to derail the proceedings.

THE CHAIRPERSON: Thank you, Mr. Freiman. Mr. Rosen...?

MR. ROSEN: I am sorry, I didn't know whether you wanted to hear the complainants first.

THE CHAIRPERSON: Mr. Armstrong, please.

ARGUMENT ON BEHALF OF SABINA CITRON

MR. ARMSTRONG: I will be very brief, Mr. Chairman and Members of the Tribunal. We adopt what counsel for the Commission has just said and simply add to it, in response to what Mr. Christie said.

Mr. Christie would have this as a kind of mathematical exercise. You just add up the number of heads on one side of the table and try to equal them with additional heads on the other side of the table. With the greatest of respect, the courts have resisted that kind of argument from Mr. Christie before. They have resisted it in the Supreme Court of Canada.

In my respectful submission, you ought to reject that kind of notion here.

THE CHAIRPERSON: Mr. Earle, please.

MR. EARLE: Mr. Chairman, on behalf of the Mayor's Committee, we are content to adopt the submissions of Commission counsel.

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

ARGUMENT ON BEHALF OF B'NAI BRITH

MR. KURZ: Mr. Chair, I, in effect, have three things to say and I will expound on them a bit: first of all, that the application does not meet the standards set out in the cases for addition as an interested party or as intervenor; that the addition of the proposed interested parties, in particular Mr. Fromm, would unnecessarily lengthen and complicate these proceedings; third, that this application, like that of Mr. Lemire, is just an extension of Mr. Zundel himself and is an attempt, in effect, to do what Mr. Christie talked about, to balance the scales in Mr. Zundel's favour, that somehow or other his case would be buttressed by just having more people saying the same thing.

Mr. Christie has admitted that there is a lack of expertise by Mr. Fromm, but says that the reason to allow him is the appearance of balance. Mr. Armstrong has pointed out that that certainly is not one of the guiding principles that, in my respectful submission, should be guiding you.

Section 50 of the Act makes it clear that this is a discretionary decision by the Tribunal. Certainly in the cases that the present interested parties put before you, it is clear that there is no clear test and that what you can refer to is the other intervention tests. In those cases they really look to three issues: interest; expertise; and a unique perspective. Are they, through this unique perspective, going to help the Tribunal?

Starting with the interest, from Mr. Fromm's submission I was not clear whether he is applying on his own behalf as well as on behalf of the organization. In his letter he says he is applying in both capacities, so I will address them both briefly.

He has indicated no personal interest in this matter. He is not going to be bound by any decision made by the Tribunal. Simply because he is a defrocked teacher who has been fired by the Peel Board of Education for his association with Nazis does not give him standing to come here. Those are not issues before this Tribunal, and nothing that the Tribunal does will affect Mr. Fromm personally.

His organization claims to be a public interest group but, as Mr. Freiman pointed out, they have never been accepted anywhere by a court, a tribunal or by a commission of inquiry as an interested party or an intervenor. That puts him in distinction to every other interested party before you who all have histories of being accepted as being responsible parties who can be intervenors or interested parties.

Certainly anyone can write letters to the government. Anybody can support people, but there is a step between that and actually being accepted by tribunals as being able to assist them. That has never happened for Mr. Fromm's organization. Certainly in my view and in my respectful submission, there is a confusion between an interest in a subject and a public interest. This is a group with 2,500 members, Mr. Fromm says, which does not elect its board of directors and which is coming to you for the first time asking to be recognized in this way.

With regard to expertise, Mr. Fromm and his group fall down even more than that with regard to the issue of interest. As I said, Mr. Christie has admitted that they lack expertise ‑‑

MR. CHRISTIE: I didn't say that.

MR. KURZ: That is what I heard Mr. Christie say, Mr. Chair; he can respond.

Certainly there is no evidence that as a group they have expertise in the issues that are before the Tribunal. Mr. Fromm's personal expertise is irrelevant, whether he is an expert or not ‑‑ and I am not going to attempt to address that issue. If he is an expert linguist, certainly Mr. Zundel can call him to testify as an expert in that area. Certainly this organization has never demonstrated any expertise in what I submit are the three main issues before the Tribunal: first of all, whether Mr. Zundel is responsible in law for the materials that are before the Tribunal; second, whether the Tribunal has under the Canadian Human Rights Act jurisdiction over the Internet; and, third, which I suppose is really an extra issue, whether the law articulated in Taylor is changed by the Internet. That would be the free speech issue, but it is not simply a free speech issue. It is whether the law of Canada, as articulated in Taylor ‑‑ that is, allowing the limitation of freedom of speech in circumstances such as this ‑‑ is changed simply because of the medium of the Internet. Finally, we have the issue of whether Mr. Zundel's materials in themselves are hateful.

I would suggest that there is no evidence before the Tribunal that Mr. Fromm's group can be of assistance in any of those areas. There is certainly no computer expertise, no involvement in those kinds of issues that have been put forth.

Finally, with regard to unique arguments, there is no indication of what Mr. Fromm will have to say other than "Me, too. Yes, I am in favour of freedom of speech." Unlike the proposed intervenors, Mr. Fromm had nothing to say to the Tribunal about what is novel and unique about his contributions. If you think back to Madam Justice McLachlin's comments in the Finta case, in which a number of intervenors were then before the Supreme Court, one of the questions that for her allowed some parties in and did not allow some parties in and even limited the submissions of parties in the Supreme Court of Canada was: What do you have to say that is unique? If you don't have something to say that is unique, you can't say it. Let the other parties say it.

That ties into the issue of the timing of this application and the coincidence of this application and that of Mr. Lemire. Somehow or other Mr. Fromm explained simply that he has applied at this time because now he suddenly has time and he didn't have it before. But at the same time he said that he found this out in the summer.

The coincidence is important because both Mr. Fromm and Mr. Lemire wrote letters to the Tribunal on the same date, November 28, 1997. Out of the blue, two different people are coming to the Tribunal and saying, "We want to be added as parties, and we have something unique to add."

THE CHAIRPERSON: We have had other late applications.

MR. KURZ: Not only are they late, but why both of them on the same date? It is a remarkable coincidence that is not explained in any way. Why wasn't one ‑‑

MEMBER DEVINS: Mr. Kurz, are you alleging bad faith of some sort?

MR. KURZ: What I am saying is that these applications ‑‑ I don't want to use the term "bad faith." What I am saying, and this is what I have said in my written submission as well, is that both of these applications are really Mr. Zundel's left hand trying to help Mr. Zundel's right hand. Whether that is bad faith is not something that I am going to say, but I am saying that they are simply an attempt to rectify what Mr. Christie sees as an ill. Mr. Christie has been saying all along that it is terrible that there are all these lawyers on one side and poor Mr. Zundel and his two lawyers on this side. Somehow or other, the appearance in the scales of justice, certainly from the point of view of Mr. Christie, is: Maybe we can put a couple more bodies on this side, and that will buttress our case.

I am submitting to you that it is quite the opposite. Allowing these extra people in ‑‑ and the important thing as well is that there is no lawyer. Mr. Fromm will simply be here on his own, and that is an issue that you are going to have to deal with with Mr. Lemire as well. They are simply here on their own. Their cross-examining, say, Mrs. Zundel is something that you have to consider and whether that is going to assist the Tribunal.

For all those reasons, I am opposing the application.

THE CHAIRPERSON: Mr. Rosen, do you have some fresh perspectives to offer us?

MR. ROSEN: All I was going to say, Mr. Chairman, is that I support Commission counsel. The only thing I was going to direct your attention to was the wording of section 13 and to say that, when you look at the issues that have to be decided, given the decision in the Supreme Court of Canada in Taylor, there is no free speech issue for you to determine.

That is my position.

THE CHAIRPERSON: Mr. Christie ‑‑ I am sorry, did I miss someone?

MS FAVREAU: On behalf of the Canadian Jewish Congress, I just want to say that we adopt the submissions that have been made beforehand.

ARGUMENT ON BEHALF OF THE RESPONDENT

MR. CHRISTIE: If I could be allowed to say a few things in reply, first of all, there is always a first time for every intervenant. That does not mean that what they have to say is any less important in terms of public interest.

I did not say there was no expertise or any lack of expertise in Mr. Fromm. I said there was a serious issue upon which there is a lack of expertise technically on the whole subject of the Internet. That may remain to be seen.

I was not speaking about getting someone on our side of the table. We don't have a side of the table. We are surrounded. They are on that side, that side and that side, so we don't have a side. We have a little corner, to be precise.

When the Supreme Court was speaking about this issue in the case of Finta, Madam Justice McLachlin was dealing with the court. When I was in the Supreme Court last December 10, my learned friend Mr. Pentney for the Canadian Human Rights Commission acknowledged that a Human Rights Tribunal is not limited as a court. The Human Rights Tribunal is not a court. They don't have the jurisdiction of the courts, and the courts don't have the jurisdiction of a federal Human Rights Tribunal. They are viewed as unique expert panels to deal with issues that are basically social issues.

The rules of procedure of the Tribunal are its own to make. It does not have to accept or exclude evidence that courts would otherwise accept or exclude. It does not have to follow the same procedures as courts. It is not bound by the rules of evidence. It is not a court. It is a tribunal with a unique expertise. The Canadian Human Rights Commission has conceded that the Federal Court does not have jurisdiction, for example, to make an order under section 13(1). That issue in the McAleer case was before the Supreme Court, and it was reserved.

It seems to me, with all due respect, that it is a little inconsistent to say now, "Oh, but you can act and comply with the rules of court, section 13(1)." This is a far broader inquiry than was ever contemplated by a court proceeding. You can hear and receive almost anything you like in terms of evidence. Hearsay is admissible, if you wish. The rules of evidence are, shall we say, flexible. Why should the rules of court restrict intervention on an issue where free speech is an issue with regard to how broadly one should interpret section 13(1).

Taylor did not decide section 13(1) regarding the Internet. Taylor, which I remember quite well, revolved around a telephone answering machine. Never before has this attempt been made to extend the jurisdiction of section 13(1) outside the country over a medium of communication that is quite unique.

You are going to be resolving an issue with which free speech is very central and involved.

THE CHAIRPERSON: I guess the issue is whether these parties can assist us.

MR. CHRISTIE: Right. I can concede that they may not be the greatest assistance in the world but, if the criterion my friends are seeking to apply to these two ‑‑ and I see that they speak as if they are one, but they are in fact, as I understand it, different. If that criterion were applied to these intervenants that are already here, how many of them would be here? They are not different either. Do you mean to say that B'nai Brith is going to say something different from the Canadian Jewish Council about Ernst Zundel? I doubt it.

I argued that before, and it was quite clear that you said to me ‑‑ well, you ruled. They got in no matter how they were going to say the same thing.

Whoever decided that the CJC was democratic when electing its board of directors? The last time I examined any of their officers, it was a very different process from anything I recall being viewed as a form of democracy.

THE CHAIRPERSON: This applicant does not have the history of any of the former intervenors as revealed by the material filed and submissions made.

MR. CHRISTIE: Previous interventions, you are right.

THE CHAIRPERSON: Previous interventions and many other factors.

MR. CHRISTIE: What other factors? In my submission, none. The only difference is perhaps government funding and perhaps previous intervention. As I said, there is always a first time for every intervenor. So they have accumulated a series of court interventions. That does not mean that in this case they should have intervened or that they had anything different to say.

Those criteria which my friends seek so strenuously to apply against these individuals and groups ‑‑ in the case of Mr. Lemire, it is an individual. It is very hypocritical to seek so strenuously to object now when they all supported each other before, and there was such a lack of concern in those cases for whether they had anything different or unique to say.

THE CHAIRPERSON: I now regret not having accepted Mr. Christie's suggestion that we deal with both at the same time, but I feel I now have to call on Mr. Lemire to come forward. What is your name?

MR. LEMIRE: Marc Lemire.

ARGUMENT ON BEHALF OF MARC LEMIRE

MR. LEMIRE: I am applying for interested party status for four reasons.

The first reason is that my name has been brought up in this Tribunal on numerous occasions, including specifically on Friday, October 17 during Mrs. Zundel's testimony. I would like to read some of the things she said from the transcript of that day.

Specifically at page 7, she says:

"Then she ‑‑ "

Referring to Ingrid Rimland.

"‑‑ e-mails them to the computer of Marc Lemire in a final stage. Then Marc sends it out,"

Also on that same page 7 she mentions ‑‑

THE CHAIRPERSON: Do I take it that you want to quote from her evidence on the basis that you do not agree with her evidence?

MR. LEMIRE: What I am saying is that she is bringing up my name, and I will refer you to the parts ‑‑

THE CHAIRPERSON: You understand that you have the right to come here and give evidence, if one of the parties is interested in having your evidence.

MR. LEMIRE: Yes. I am applying because from what she is saying I think I should have representation here. None of these lawyers represents my interests or my wishes. I feel that, if my name is being brought up, I should have the ability to represent myself and to speak to issues that she or other witnesses might bring up.

THE CHAIRPERSON: Your next point...?

MR. LEMIRE: I would like to read some of the other things she has mentioned about me.

THE CHAIRPERSON: I am not sure of the purpose in your reading from her evidence. Are you reading from her evidence to show that you don't agree with her?

MR. LEMIRE: I am reading from her evidence to show that she has brought my name up and that I should be able to respond to her allegations.

THE CHAIRPERSON: You will have that opportunity to respond to her allegations if you choose to be a witness or if somebody calls you as a witness. This is not a closed hearing. You can give evidence and rebut anyone's evidence that you are competent to rebut.

MR. LEMIRE: How would I cross-examine other witnesses and then bring up other points of view with regard to other witnesses and introduce evidence?

THE CHAIRPERSON: You want to cross-examine witnesses. Give me the next point that you have. The first point is that you want to rebut the evidence of Mrs. Zundel. Is that right?

MR. LEMIRE: I want to speak to the allegations, yes.

THE CHAIRPERSON: What is your next point?

MR. LEMIRE: My second point is that my rights are being ‑‑ in the Consent Order of the Tribunal dated October 8, 1997, which was written by Mr. Taylor, my name comes up in the Consent Order, too. Thus, my rights will be affected, my constitutionally-protected, Charter rights to freedom of association.

In the Order it says ‑‑ and, even though this is a Consent Order, I suspect the final order would be, in their submission, something quite similar to this. In that Order it says:

"This Tribunal orders that the respondent Ernst Zundel, acting alone or in concert with Samisdat Publishers, Marc Lemire, Ingrid Rimland and/or any other individual or organization acting in his own name or in the name of ‑‑"

And then it goes on. That is basically where my name is mentioned there.

I would feel that, if there is going to be an order mentioning me, I should be able to have representation during this Tribunal because the ultimate order will affect me. It will affect my freedom of association rights which are constitutionally protected.

THE CHAIRPERSON: All right, Mr. Lemire, that is your second point. Your third...?

MR. LEMIRE: My third point is that I have a certain knowledge of computers, computer networks and the Internet, and I feel that I can add a valuable contribution with regard to the introducing of evidence and making representations to the Tribunal and in cross-examination of witnesses and maybe producing my own witnesses.

THE CHAIRPERSON: Thank you.

MR. LEMIRE: My fourth point is that I have expertise or knowledge with regard to web sites and how they work and the mode by which people can reach these web sites. I run a web site already on the Internet myself which has given me certain knowledge with regard to those things.

I would also like to speak to some of the others, if I can do that now, or do I have to wait?

THE CHAIRPERSON: Go ahead.

MR. LEMIRE: In the letter from Joel Richler of the Canadian Jewish Congress, which discusses my application, he says that neither applicant raises the issue that is specifically relevant to this complaint.

I think my application is relevant for three reasons: (a) my name has been brought up on many occasions and I should have the ability to represent myself for those things.

I also have an interest in preserving freedom of speech on the Internet, and I feel that this case, being the first case ever to look into whether the Internet should be controlled in any way, is a freedom of speech matter, definitely. I think there is a lot of organizations on the Internet who also feel that this is a very big freedom of speech issue. Obviously, if there are 22 mirror sites, there is quite a lot of people out there who also feel the same way and mirror those sites in order to push the idea of freedom of speech.

I think I can also add relevant information to this case. Having a certain knowledge of how the Internet works, I feel I would be able to make much better submissions than some of the other people and cross-examination of witnesses.

Looking back to the letter from Mr. Richler, he also goes on to say: "There is no reason to believe that he will be affected by the Tribunal's decision." It is quite clear that my name is in the Consent Order, which is probably going to be the final order. I suspect that, if the Commission ends up winning this, this or a very similar form would be the order that would be put onto Mr. Zundel. Since my name and other people's names are involved in it, it would affect my right to (a) associate with Mr. Zundel, to associate with Ingrid Rimland, to associate with Samisdat Publishers, to associate with any of the other things. I have a Charter right to associate with these people if I choose to or if I don't choose to.

If a decision by this Tribunal is going to affect me, I should be able to make representations to it and also to put evidence in and some other things. I think that would only be fair.

Looking back to Mr. Richler's letter, he says on the last page: "There is no reason why they cannot simply be called as witnesses in the proceedings."

I would like also to introduce evidence and to cross-examine some of the other witnesses. Just being called as a witness certainly would not in any way help my rights in order to cross-examine these people. Also, if I was going to be a witness, I would not even be able to sit in the room while these other people were making their examinations to the Tribunal, so how would I even know what they were saying to be able to represent myself? I think that is only fair. If somebody is going to say something about me, I should have the opportunity to respond to them. Isn't that one of the basic tenets of our legal system?

I would also like to make a point on what some of the other lawyers were saying. Mr. Kurz said that we are probably Mr. Zundel's left hand helping his right hand and that we will be an extension of Mr. Zundel and adopting his positions. How on earth would he know that when we haven't even adopted any position yet? We haven't even come and spoken to these issues yet. How does he know what position we are going to take on those issues? I am certainly not a left hand of Mr. Zundel. I come here to make submissions on my behalf, not on Mr. Zundel's behalf.

I would also like to speak to what Mr. Armstrong wrote in his letter. He starts off saying that I ought to be bound by any such order of the Tribunal. I think he is certainly saying that I would be affected, which is in contradiction to what Mr. Richler said. Obviously, I will be affected by an order of this Tribunal.

As to the issue of it being untimely, I only became involved when my name came up in these Hearings. I would like the chance to be able to defend myself against any allegations. My name came up on October 17, so this is certainly not untimely.

Those are my submissions for now.

THE CHAIRPERSON: Thank you, Mr. Lemire. Mr. Christie, please. I don't think we need to refer to the principles again.

MR. CHRISTIE: No, I am sure.

ARGUMENT ON BEHALF OF THE RESPONDENT

MR. CHRISTIE: In my submission, it is only fair to allow someone whose rights might be affected as a party to be represented in their own capacity. If there is an attempt, as there clearly is, to restrict Mr. Lemire's communications with Mr. Zundel, with Samisdat, with Ingrid Rimland, as is proposed in the Consent Order, as is the position of the Commission, then there can be no denying that his rights will be affected.

This only came to light in any clarity when Mrs. Zundel, the surprise witness without the benefit of the 10-day rule, came before the Tribunal and gave her evidence. At that point it became clear that Mr. Lemire was being implicated in a way that had not been clear before, and it was then made clear further by the indication of just what the Commission wants, which is not only to silence Mr. Zundel on the Internet but, in effect, to silence any communication between Mr. Lemire and Ms Rimland. That is, in effect, going to be an order against him.

For the life of me ‑‑

THE CHAIRPERSON: Mr. Christie, the only respondent here is Mr. Zundel.

MR. CHRISTIE: That's fine.

THE CHAIRPERSON: If these proceedings were to result in an injunction, it would bind other persons, as any injunction would bind other persons, where it applied to a particular person, but it would also apply to persons who are associated perhaps with Mr. Zundel. Nobody could circumvent the effect of that injunction by being an alter ego for Mr. Zundel.

All I am saying is that the fact that he is mentioned in a letter, in a form of order which should not be before this Tribunal ‑‑ and we will pay no attention to that draft order. It came into existence, as I understand it, because of another process leading up to this.

MR. CHRISTIE: No, it came into existence because I asked the Commission just to tell me what it was they wanted and maybe, if we could comply, we would not have to go through this process. That is how it came into existence.

THE CHAIRPERSON: It came into existence, but that is no business of this Tribunal. This Tribunal will decide on the evidence whether there is going to be an injunction and how that injunction will read.

MR. CHRISTIE: And it is undoubted that the order that the Commission seeks will be advanced as the requested order.

In any case in a court of law where the rights of parties could be affected by an injunction, what kind of court would there be that would deny a party whose potential rights would be affected the opportunity to appear before the court as a party?

THE CHAIRPERSON: I would have thought that they would be named as a respondent if there was to be an order affecting their rights.

MR. CHRISTIE: Not necessarily. When an injunction is sought in a form that affects the rights of named individuals, in my submission, it would not be necessary that they be directly named as respondents in order that they would have rights that would be affected by a potential order, and any reasonable court would give them the opportunity to come before the court, represent their position and argue for or against the various orders being sought, provided that it would potentially affect their rights.

If I understand the position of at least the Canadian Holocaust Remembrance Association, they concede that it will. At least, that is what they are going to seek. It is not necessary to decide whether a person has rights that might be affected to determine what the ultimate order is going to be. You couldn't do that in any case, so no one would have a right to appear before the order was made, and that would defeat its very purpose.

Obviously, when a person's rights are potentially affected, then they have a right to appear to answer to and to participate in the decision of how it should affect their rights, if at all.

Certainly no powers of being a witness can deal with the issue of cross-examination, of submissions which are an important part of any decision-making process in which there is an attempt at hearing both sides. In this case Mr. Lemire is a party. He is being named as involved in a supposed conspiracy to place matter on the Internet, to allegedly support web sites in some clandestine way. Then to say, "Well, you can answer that by way of being a witness," is basically to say, "You have no rights yourself that can be affected."

If the potential order that is being sought by the Commission is made, it will definitely restrict the rights of Mr. Lemire to communicate with Ms Rimland directly or Mr. Zundel or anyone who might be involved with them. That is a very serious restriction on freedom of expression and association.

THE CHAIRPERSON: Mr. Freiman, why was Mr. Lemire specifically mentioned?

ARGUMENT ON BEHALF OF THE CANADIAN HUMAN

RIGHTS COMMISSION

MR. FREIMAN: My first submission is that the proposed Consent Order is not properly before you. In fact, in my submission, I would call it surprising, and that is the most modest word that I could use. It should not be there. It is part of the process under sections 47 and 48 to attempt to see if there was room for an amicable resolution of the matter.

THE CHAIRPERSON: You are not seeking an order to specifically name Mr. Lemire?

MR. FREIMAN: At the moment, our instructions are not to seek such an order.

THE CHAIRPERSON: What will your position be after the recess? "At the moment" doesn't help the Tribunal very much.

MR. FREIMAN: That is the position. We have not been instructed to seek an order that names individuals.

MEMBER DEVINS: Can you assist us by telling what remedy you are seeking?

MR. FREIMAN: We are seeking an order that would prevent Mr. Zundel from communicating himself or in association with others matters that would likely expose an identifiable group to hatred and contempt based on a prohibited ground. We would seek to define the nature of the communication by reference to the evidence before you so as to prevent the communication of the material that we presented to you or material that is substantially similar.

I start by saying that the proposed Consent Order is part of a different process not before you. Unlike Mr. Christie, I don't assume anything about what the Tribunal will do, other than to assume that the Tribunal is well versed in the rights of individuals and will not make orders that negatively affect the rights of persons who are not before the Tribunal. The only respondent before the Tribunal is Mr. Zundel, and an order against him in the language of the Act and echoing the prohibitions under the Act does not affect the interests of any other individual.

That could properly be the matter of submissions in argument during the final submission stage. If Mr. Christie believes that any proposed order is too wide because it does affect the rights of others, he will draw that to your attention, and your order will be properly circumscribed.

What I hear and what is properly before you is really an argument by Mr. Lemire that his name has been mentioned and, because his name has been mentioned, he wants the right to expand the proceedings so as to become a party and to not only defend what he sees as his own interests in terms of getting the record straight, but also to expand the interest by cross-examining not only those who mention his name but any number of parties, and drawing on his asserted expertise in certain areas to also cross-examine on expert matters.

In effect, what he is asking you to do is to allow him to expand the ambit of the proceedings in an indefinite and uncontrollable manner. In my respectful submission, the nature of the argument put before you by the applicant for interested party status gives an indication of the potential that such status has for derailing the proceedings, lengthening them, taking us down unprofitable detours and, in general, embarrassing the proceedings, in a legal sense of embarrassing the proceedings.

There is no right for every person whose name is mentioned in proceedings to become a party to those proceedings, and that is the right that Mr. Lemire is asking before you. There is no right for every person who claims expertise in an area that is discussed in the proceedings to become a party in the proceedings, and that is also a right that Mr. Lemire is claiming from you.

The intervention being proposed is not helpful, does not comply with any of the rules before the Tribunal, as having been applied by other tribunals in granting interested party status.

THE CHAIRPERSON: Mr. Armstrong, please.

ARGUMENT ON BEHALF OF SABINA CITRON

MR. ARMSTRONG: Members of the Tribunal, I agree with the submissions of Commission counsel that Mr. Lemire does not satisfy any of the requirements that would inform the Tribunal to grant him interested party status. He simply comes forward and says, "I know something about the Internet. I know something about computers and, indeed, I have my own web site." What does that tell you, I ask rhetorically. It tells you nothing.

In my respectful submission, he has nothing to add in terms of bringing a particular point of view. He has not even told us what his point of view is and how he might be different from any of the rest of us or different from Mr. Zundel.

Having said that, based on some of the evidence that we have heard so far, it is the position of my client and the Canadian Holocaust Remembrance Association that Mr. Lemire ought to be bound by any ultimate order of this Tribunal, should the Commission succeed in its case.

Having said that, we concede that Mr. Lemire ought to be granted whatever status is necessary in order to respond to his being expressly bound by any order of this Tribunal. Put simply, we don't want to go through this Hearing and end up at the end of the day with an order against Mr. Zundel that turns out to be meaningless because it is not seen to expressly bind Mr. Lemire.

Those are my submissions.

THE CHAIRPERSON: Mr. Armstrong, you are supporting an intervention of sorts. What are the four corners of that intervention?

MR. ARMSTRONG: The four corners of it are to ‑‑ it is a bit difficult because the Commission has now said that they are not seeking an order that will expressly bind Mr. Lemire. If the Commission had said that they were seeking an order of the nature ‑‑ and I agree with Mr. Freiman that the order really is not properly before you because it is part of another procedure. But it, in fact, is before you whether we like it or not

THE CHAIRPERSON: We know about it.

MR. ARMSTRONG: You know about it, and it is filed with you.

If the Commission were seeking that kind of an order, then Mr. Lemire, I concede, should be able to appear and testify, whether or not any party calls him. At this moment in time he simply has to rely on whether the Commission calls him as a witness or Mr. Christie calls him as a witness or some other party calls him as a witness. He would be entitled to testify and he would be entitled to respond to any argument put forward that he be bound by the order.

The Commission is not seeking such an order. It is my anticipation, on behalf of Mrs. Citron and the Canadian Holocaust Remembrance Association, that at the end of the Hearings and submissions, we may well be advised on behalf of Mrs. Citron as a complainant to make submissions that Mr. Lemire be bound by such an order. I and you and the rest of us have not heard all of the evidence yet, but there seems to be some potential for that.

THE CHAIRPERSON: I pushed Mr. Freiman into a corner on that one a little bit, and I did not intend to do that. In any event, you may well be seeking to have Mr. Lemire named in an order, if one should eventually ‑‑

MR. ARMSTRONG: If the evidence is such that it is clear that Mr. Lemire, in fact, is integral to the Zundelsite and, as he or somebody else has suggested, the right-hand person of Mr. Zundel in this operation, there is no doubt, I must tell you, that on behalf of Mrs. Citron as a complainant we would be urging an argument on you that he be expressly bound by such an order. Therefore, what follows from that, I have to concede, is that he should be afforded the status in order to protect his legal interest.

I don't make that argument lightly, but I have to concede that that is where it leads.

MEMBER JAIN: I am not very clear on what kind of status the Tribunal should grant Mr. Lemire, other than strictly as a witness. He did ask for cross-examination and other rights. I am not clear about the status that you are advocating.

MR. ARMSTRONG: I have to concede that where it likely leads, if my submissions are accepted, is that he becomes a respondent. He certainly has no basis, sir, in my respectful submission, to come in here as an interested party or intervenor. He just doesn't satisfy any of the requirements that Mr. Freiman set out from the Dieleman and other cases.

MEMBER JAIN: Thank you.

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

MR. EARLE: Thank you, Mr. Chairman. The Mayor's Committee again adopts the submissions of Mr. Freiman.

THE CHAIRPERSON: Thank you. Any fresh comments, Mr. Kurz?

MR. KURZ: Just a few comments.

ARGUMENT ON BEHALF OF B'NAI BRITH

MR. KURZ: This is an unusual position because I actually disagree with Mr. Armstrong's comments based on the position that the Commission is taking.

Mr. Lemire has not come before the Tribunal asking to be added as a respondent. If I hear his submissions, rather he is asking to be added as an interested party, and those are two different things. As I hear it as well, Mr. Lemire said nothing about conceding his procedural rights with regard to notice in advance. He is simply saying that he wants to be added now. Those are real issues that I am submitting have to be considered by the Tribunal.

If the Commission had been asking that Mr. Zundel not associate with Mr. Lemire or somehow do indirectly through Mr. Lemire what they ask that he not be able to do directly, I am submitting that Mr. Lemire need not be added as a party. If there is a bail condition, for example, that Mr. A does not associate with Mr. B, and Mr. A is the accused, Mr. B does not become a party to the bail hearing. If there is an injunction application, for example, in a situation where a prominent management person leaves and starts contacting clients, the client is not made a party. It is just the former director or what have you that is made a party.

I am suggesting that it is analogous here. If Mr. Lemire were to be mentioned at any time, it would not be something that binds him. It simply binds Mr. Zundel ‑‑ that is, that Mr. Zundel not associate with Mr. Lemire, that Mr. Zundel not do through Mr. Lemire indirectly what he cannot do directly, if you find that there are certain things that Mr. Zundel should not be doing.

For those reasons, I am submitting to you that it is not necessary to add Mr. Lemire.

I would like to add two other points.

First of all, with regard to the test, does Mr. Lemire have anything to add that will assist the Tribunal? He has admitted as much, that he does not have expertise. He started to use the word "expertise," took it back and used the word "knowledge." That is important because part of the test for interested party status, if the test for intervention applies here, would be some expertise.

Interestingly enough, Mr. Lemire was extremely close-lipped about what it is that he is going to say. He said specifically, "Nobody knows what I am going to say." I am suggesting and I am submitting to the Tribunal that, in order to grant this kind of interested party status, Mr. Lemire should be able to convince you that he has something unique to say. He is not saying what he is saying at all. How do we know, based on Mr. Lemire's submissions and his letter, what he is going to say and how different it is from what Mr. Zundel says?

I also bring to your attention the spectacle of him cross-examining Mrs. Zundel.

One last point about the left and right-hand argument. In my written submission I specifically raise that issue. I raise the issue with regard to the coincidence of the two letters. I have addressed that before, and I make that submission again with regard to Mr. Lemire. I also raise this issue with regard to that letter and the so-called Consent Order. As I understand it, Mr. Christie said that he wrote a letter to Mr. Freiman saying, "What Consent Order would you accept so that we can end this thing?" That sounds to me like settlement negotiation. Mr. Freiman wrote a letter back to Mr. Christie in a way that I would think would be privileged. Certainly it was not addressed to Mr. Lemire. There is no "cc" to Mr. Lemire on that letter; yet, Mr. Lemire has a copy of that letter for the Tribunal.

In my written submission I specifically questioned how Mr. Lemire got that letter if he is not the left hand of Mr. Zundel's right hand. In hearing him today, there is no explanation.

Again, I reiterate that submission on the basis of the comments and the lack of comments by Mr. Lemire today.

Thank you.

THE CHAIRPERSON: Mr. Rosen, please.

ARGUMENT ON BEHALF OF SIMON WEISENTHAL CENTER

MR. ROSEN: The only thing I wanted to say is that I adopt some of what Mr. Kurz says with respect to whether Mr. Lemire ought to be a party. The order that would be made would be against Mr. Zundel either acting alone or in concert with others not to do certain things. If Mr. Zundel chose to act in concert with others, it would be enforced as against Mr. Zundel and not others. The fact that others are named directly or referred to indirectly is irrelevant. The fact is that he is the only respondent.

It was specifically raised in the position of the Simon Weisenthal Center that to allow Mr. Lemire and the other party to come in, but Mr. Lemire especially, would tend to expand the nature of the proceedings and raise a number of issues. If Mr. Lemire were to be added as a respondent, that would create enormous problems such as notice and so forth and whether or not we can go back and give him rights to cross-examine and whether or not you have to stop the proceedings and start over.

It restructures the entire proceedings, and I would respectfully submit that it ought not to be done and that it is not necessary to be done. With respect to his being an interested party, I adopt Commission counsel's position.

THE CHAIRPERSON: Thank you, Mr. Rosen.

I am sorry, counsel, I don't have your name.

MS FAVREAU: Lise Favreau, F-a-v-r-e-a-u.

THE CHAIRPERSON: Go ahead.

MS FAVREAU: We, too, adopt the submissions made by my friend Mr. Kurz on the issue of whether Mr. Lemire would be bound by an order of the Tribunal. Based on the submissions that were made by Mr. Freiman as to the content of the order which would be sought and the fact that Mr. Lemire is not in fact the subject of the complaint, there is no reason to believe that his rights would be affected.

THE CHAIRPERSON: Thank you. Any reply, Mr. Christie?

ARGUMENT ON BEHALF OF THE RESPONDENT

MR. CHRISTIE: This, in my submission, demonstrates the absurdity of the positions taken by all the parties in that various complainants go through an involved process of contacting a foreign web site and they download some messages, bring them as a complaint to the Canadian Human Rights Commission, and their rights are affected. They are allowed party status or complainant status.

Until today, until this process of raising the issue, Mr. Lemire's rights were being sought as restricted. I don't hesitate to say that, when I see someone else's rights being affected by a potential proceeding, I bring it to their attention because I have no obligations to prevent other people's rights from being protected. If anything, as an officer of the court, I think I have a right to advise people when their legal rights might be affected. There is no suggestion that there was a privileged communication from the Commission to me.

The rights of Mr. Lemire will be affected by either the explicit order that they originally sought until now or the implicit order. His rights will be affected.

They are not now apparently seeking an order at this moment that will expressly bind Mr. Lemire. That is what we have heard for the first time today. But their order will bind anyone in conjunction with Mr. Zundel. If Mr. Lemire interviews Mr. Zundel, takes notes in handwriting, goes home and e-mails an interview to Ms Rimland who posts it on the web site, is anyone really seriously suggesting that that would not be considered a breach by Mr. Zundel in the all-encompassing way these orders are created? Of course not.

Mr. Lemire cannot do what he would otherwise be entitled to do with even the basket clause order that they are now trying to propose. It would not name him, but it would say anyone with whom he might be associated. So Lemire cannot do what any other citizen could do in interviewing Mr. Zundel and communicating with a foreign publisher. It affects his rights as a citizen, and there is no denying that, really.

There is an allegation that was made for the first time in these proceedings, undenied, that it was for the first time without prior notice, and that is why there is a reasonable delay. If there had been any further information given prior to that time, one could criticize Mr. Lemire for not doing something, but actually there wasn't. Mr. Kurz said that he should not be given status as a party, and then Mr. Rosen referred to him as seeking status as a party. There is no difference between a respondent and a party. If he has now for the first time sought that status, in my respectful submission, it is an argument interorem to suggest that somehow this would throw these proceedings into chaos. He asked for it, and he should have it, but he did not ask for it before because he did not know about it before. There is no evidence that anybody knew about it before, so no one can be criticized if he is joined now.

Look at how this order would affect his rights and, in all fairness, allow him the opportunity to defend those rights for himself. In my submission, he is quite right to say that I don't have a brief for him. I am not responsible to defend his interests against whatever accusations Irene Zundel may have made against him. Only to the extent that it affects my client's rights am I really required to pursue the matter. His rights being affected, he should be able to do that for himself.

To deny him that right is very much like this situation. An injunction is sought against one union that has an alleged association with another union, but only one union is going to be served with notice; only one union will have a right to make representations. Although the injunction could affect both, only one will appear. That would seem to me not like a bail hearing situation; it is quite obviously more like this situation.

Thank you.

THE CHAIRPERSON: The Tribunal will reserve on these applications and deliver our decision shortly. We will have our morning recess, and then we will continue with the cross-examination of Mayor Hall.

‑‑- Short Recess at 11:58 a.m.

‑‑- Upon resuming at 12:16 p.m.

THE CHAIRPERSON: I assume that Mr. Fromm and Mr. Lemire were adopting Mr. Christie's reply. If that is not the case, Mr. Fromm, do you want to say something more?

Sorry, Mr. Earle, please.

MR. EARLE: Mr. Chairman, given the unexpected length of time that this has taken this morning, I am advised that the Mayor has to leave at 1:30. At this point, I really have some concerns about the process, as to whether it is appropriate to start and stop a cross-examination like this.

What I would suggest now ‑‑ and I apologize; it has been difficult to deal with this. I would remind the Tribunal that these gentlemen were supposed to appear last Thursday and did not appear. I think a lot of the problems we are having with scheduling witnesses now might have been avoided had they done so.

The Mayor has advised that she has a meeting tomorrow between 12:00 and 2:00; otherwise, she is available to be here. We also have Mr. Angus outstanding, and I am not sure how Commission counsel want to deal with that.

THE CHAIRPERSON: Let's deal with the problem at hand as far as the Mayor is concerned. Is she not available after the lunch hour?

MR. EARLE: The difficulty today, Mr. Chairman, is that she has a valedictory council this afternoon. It is the last meeting of City Council.

THE CHAIRPERSON: Can you have Mr. Angus this afternoon?

MR. FREIMAN: Yes, Mr. Angus is present outside even as we speak.

THE CHAIRPERSON: Perhaps we will hear from Mr. Fromm and Mr. Lemire and then have lunch and come back and hear from Mr. Angus.

MR. FREIMAN: I was going to second Mr. Earle's proposition to that effect. I would like to take this opportunity to canvass Mr. Christie's estimates as to how long he will be with Mr. Angus. In that way we could find an appropriate time for the Mayor to come back and also to schedule our subsequent witnesses.

THE CHAIRPERSON: First, how long are you going to be with him?

MR. FREIMAN: About a half-hour, maybe less.

THE CHAIRPERSON: Will you occupy the rest of the day, Mr. Christie?

MR. CHRISTIE: Yes, I will.

THE CHAIRPERSON: We will have the Mayor available tomorrow in the event that Mr. Christie has finished. The Mayor can be excused.

Mr. Fromm, please.

REPLY ON BEHALF OF CANADIAN ASSOCIATION FOR

FREE EXPRESSION INC.

My late instructor at the University of Toronto, who was a great inspiration to me, Marshall McLuhan, in his analysis of the media has said that the medium is the message.