Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 2) (1996), 26 C.H.R.R. D/242 (F.C.A.) [Eng./Fr. 18 pp.] Authority to Issue Injunction
Before Tribunal Ruling - exposure to hatred on the basis of race or religion - survey of the law

Keywords: HATE PROPAGANDA - exposure to hatred on the basis of race or religion - survey of the law - COMMUNICATIONS - telephonic transmission of hate message - FREEDOM OF EXPRESSION - freedom of speech and communications of hate messages - CANADIAN CHARTER OF RIGHTS AND FREEDOMS - application of s. 1 (reasonable limits) - s. 2(b) (freedom of expression) - CANADIAN BILL OF RIGHTS - s. 1(d) (freedom of speech)

APPEALS AND JUDICIAL REVIEW - appeal of injunction - INJUNCTIONS - injunction restraining telephonic messages - survey of the law - JURISDICTION - court of competent jurisdiction to order injunction - COURTS - authority of court to order injunction - BOARDS OF INQUIRY / TRIBUNALS - authority to award remedy for respondent to cease discriminatory action

Summary: The Federal Court of Appeal rules that the Federal Court has no authority to issue an interlocutory injunction before a Canadian Human Rights Tribunal has made a finding that the communication of telephonic hate messages contravenes s. 13(1) of the Canadian Human Rights Act.

This is an appeal from an interlocutory injunction that was issued by the Federal Court Trial Division in March 1992 to enjoin Canadian Liberty Net (CLN) and Tony McAleer from communicating by telephone messages that would expose Jewish and non-white persons to hatred until such time as a Canadian Human Rights Tribunal could hear and decide on a complaint alleging that CLN and Tony McAleer were contravening s. 13(1) of the Canadian Human Rights Act.

The Tribunal was appointed to hear and decide complaints against CLN and McAleer in March 1992 (Khaki v. Canadian Liberty Net), but its decision was not issued until September 1993. In the meantime, the Canadian Human Rights Commission applied for an interlocutory injunction enjoining the appellants from communicating or causing to be communicated messages that would expose Jewish and non-white persons to hatred until a final order was rendered by the Tribunal. The injunction was issued in March 1992. In June 1992 the Commission applied for a show cause order on the grounds that the appellants were disobeying the injunction. They were finds guilty of contempt of court in July 1992 and sentence was imposed on August 26, 1992. That decision and sentence were appealed, and the appeal was heard at the same time as this appeal from the interlocutory injunction.

The issue in this appeal is whether the Federal Court has the authority to issue an injunction in these circumstances. There is no express authority in the Canadian Human Rights Act to issue an injunction. The Act specifically precludes a Tribunal from ordering compensation in s. 13(1) cases and Tribunals cannot impose penalties in any case. The issue is, in spite of these carefully limited sanctions, should it be assumed that Parliament has authorized interlocutory measures to stop the communication of messages before a Tribunal has determined that they are in violation of s. 13(1)?

The Federal Court of Appeal concludes that the Canadian Human Rights Act sets out a measured, deliberate approach to the regulation of hate messages communicated telephonically, including investigations, mediation, and possible disposition by a Tribunal. While this regime does not require proof of intent to expose a group to hatred, it provides sanctions which can only be imposed after a Tribunal has determined that s. 13(1) has been contravened, and which include no penalty and no compensation, but only a cease and desist order. No prior restraint of hate communications is specifically provided for.

It is apparent that this measured approach was thought necessary in order to support as fully as possible freedom of speech. The cautious approach taken by the Parliament in structuring the Canadian Human Rights Act, and by the Supreme Court of Canada in its decision in Canada (Human Rights Comm.) v. Taylor militates against there being an implied authority for the courts to issue interlocutory injunctions to stop communications prior to their being finds to contravene the Act.

The Federal Court of Appeal concludes that the Federal Court does not have the authority to issue interlocutory injunctions to restrain hate communications prior to their being finds to violate s. 13(1) of the Canadian Human Rights Act. If Tribunals cannot act more quickly in these cases, then the Act should be amended to explicitly authorize the Tribunal or the Court to issue interlocutory injunctions. Whether such measures would be considered justifiable under s. 1 of the Charter might require further judicial consideration. In any case, the authority to issue injunctions does not currently exist.

The appeal was allowed and the appellants were entitled to their costs. However, the Court notes that the appellants have not paid the fines ordered against them for violating the injunction, and it orders that no costs be paid until the fines owing are paid by the appellants.

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