Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 3) (1996), 26 C.H.R.R. D/260 (F.C.A.) [Eng./Fr. 11 pp.] Contempt order upheld despite lack of authority to issue injunction before tribunal ruling

Keywords: HATE PROPAGANDA - COMMUNICATIONS - telephonic transmission of hate message - APPEALS AND JUDICIAL REVIEW - appeal of contempt order and of sentence - error of law in interpreting legislation - INJUNCTIONS - contempt of court proceeding for breach of injunction order - validity of injunction - COURTS - contempt of court - ARREST AND DETENTION - appropriateness of sentence - INTERPRETATION OF STATUTES - definition of "cause to be ... communicated"

Summary: This is an appeal by Canadian Liberty Net (CLN) and Tony McAleer (alias Derek J. Peterson) from a contempt order issued by the Federal Court Trial Division which finds the appellants in breach of an injunction.

In March 1992 the Federal Court Trial Division issued an injunction prohibiting CLN and Tony McAleer from communicating messages telephonically which would be likely to expose Jewish and non-white persons to hatred pending the resolution of a complaint which alleged that they had violated s. 13(1) of the Canadian Human Rights Act. In July 1992, the appellants were finds guilty of contempt of court for disobeying that injunction. The Federal Court Trial Division finds that CLN and Tony McAleer had placed a message on the CLN telephone line in Canada referring callers to a new telephone number for CLN "in exile". By telephoning the new number, located in Blaine, Washington, callers could hear hate messages of the same type that they were enjoined from communicating by the interlocutory injunction. The Federal Court Trial Division finds CLN and McAleer had deliberately circumvented the order of the court. It rules that they were in contempt of court, and sentenced McAleer to two months in prison. He was also fined $2,500 and CLN was fined $5,000.

In this appeal, the issues are: (1) was the Trial Judge correct in finding that there was a breach of the injunction; (2) if the injunction was invalid could it be the basis for a contempt order; and (3) was the sentence appropriate?

The Federal Court of Appeal finds that there was a breach of the injunction. The injunction specifically enjoined the appellants from "causing to be communicated" certain types of hate messages. The fact that the messages were conveyed from an American-based telephone line is not sufficient to evade the injunction. If the appellants had not placed a message on the CLN line in Canada, the messages could not have been communicated. Consequently, the appellants breached the injunction by giving callers the CLN number "in exile" and continuing to provide hate messages.

Also, the Federal Court of Appeal finds that even though it has decided in a companion decision, that the Federal Court Trial Division had no authority to issue its 1992 injunction, while the injunction was in effect it was a valid order of the court and breaching it can be the basis for a contempt of court order. Injunctions, as well as any other orders, must be complied with until reversed or stayed, even if they are not valid.

Finally, the Federal Court of Appeal decides that the prison sentence given to Mr. McAleer should be reduced to the two days he has already served, in light of the finding of the Court that the injunction was not valid. The fines, however, are affirmed.

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