Contempt of Court Ruling for Violating Order Restraining Hate Messages Upheld
Canada (Human Rights Comm.) v. Canadian Liberty Net (1998), 31 C.H.R.R. D/433 (S.C.C.)
This is a decision on appeals from two separate judgments of the Federal Court of Appeal in the case of Canadian Liberty Net.
In 1991, the Canadian Human Rights Commission received five complaints regarding telephone messages made available by Canadian Liberty Net. Callers to the Liberty Net number were offered a menu of telephone messages. These messages included denials of the existence or extent of the Holocaust; assertions that non -- white "aliens" are importing crime and other problems into Canada; suggestions that violence would be helpful to correct problems caused by "aliens"; complaints about the alleged domination of the entertainment industry by Jews; and allegations that well-known leaders of the white supremacist movement are being persecuted.
After investigating the complaints, the Canadian Human Rights Commission requested that a human rights tribunal be appointed to hear and decide whether the messages violated s. 13(1) of the Canadian Human Rights Act. The Commission then applied to the Federal Court Trial Division for an injunction prohibiting Liberty Net and Tony McAleer from making any such messages available until the human rights tribunal rendered a final order. The injunction was granted.
However, when a commission investigator later telephoned the Liberty Net number, he heard a message referring callers to a new number in the United States. By phoning that number, callers could hear messages whose content was proscribed by the injunction. Liberty Net and Tony McAleer were found guilty of contempt of court for violating the injunction.
Liberty Net and Tony McAleer appealed both the injunction and the contempt ruling. The Federal Court of Appeal affirmed the finding of contempt, but set aside the injunction on the grounds that the Trial Division had no jurisdiction to issue it. The Canadian Human Rights Commission appeals the decision regarding jurisdiction. Canadian Liberty Net appeals the decision regarding contempt of court.
There are three issues before the Court: (1) did the Federal Court have jurisdiction to issue the injunction; (2) was the issuance of an injunction appropriate in this case; and (3) if the injunction was wrongly issued, can the defendants be held in contempt of court for a breach of the order.
The majority finds that the Federal Court did have jurisdiction to issue the injunction. There are three requirements for the Federal Court to have jurisdiction:
1. there must be a statutory grant of jurisdiction by the federal Parliament; 2. there must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction; and 3. the law on which the case is based must be "a law of Canada".
Only the first of these presents an obstacle. However, the majority finds that s. 44 of the Federal Court Act provides a source of jurisdiction to grant injunctions in human rights cases. Section 44 of the Federal Court Act states:
In addition to any other relief that the Court may grant or award, a mandamus, injunction or order for specific performance may be granted...in all cases in which it appears to the Court to be just or convenient to do so....
The Court notes that sections of the Canadian Human Rights Act and the Federal Court Act indicate a high degree of supervision of human rights tribunals by the Federal Court. The Federal Court is responsible for judicial review of decisions of human rights tribunals; it may issue injunctions against a tribunal; recourse to the Federal Court is necessary to order disclosure of information required in the course of investigation; and an order of a tribunal may be filed with the Federal Court and transformed into an order of the Court.
The Supreme Court concludes that Parliament intended to grant a general administrative jurisdiction over federal tribunals to the Federal Court. Within the sphere of control and exercise of powers over administrative decision-makers, the powers conferred on the Federal Court by statute should not be interpreted in a narrow fashion. This means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction.
The Court finds that it was the intention of the Federal Court Act and the Canadian Human Rights Act that s. 44 grant jurisdiction to issue an injunction in support of the administration of the Human Rights Act. Although the Federal Court does not have jurisdiction to make determinations of human rights complaints on their merits, because that role is assigned to tribunals as expert administrative decision-makers, the Federal Court does have the power to grant "other relief" in human rights cases.
The other requirements for the Federal Court to have jurisdiction present no problem here. The Canadian Human Rights Act deals only with violations of human rights in federal jurisdiction, and it provides the normative basis for the injunction power.
The appeal on the question of jurisdiction is allowed with costs.
Since a human rights tribunal has ruled on the merits of the case, the Court finds that the question of whether the injunction was appropriately issued in the circumstances is moot, and it declines to rule on the issue of appropriateness.
Having found that the Federal Court had jurisdiction to issue the injunction, the Court finds that Liberty Net can only suggest that the jurisdiction was exercised wrongly. However, in contempt proceedings the order must be considered to be valid until it is set aside by legal process. Thus, even if the contempt citation were ultimately ruled to be invalid, that provides no defence. The Court concludes that Liberty Net and Tony McAleer knowingly violated the injunction order and were properly found to be in contempt.
This appeal is dismissed with costs.
McLachlin and Major JJ. dissent on the issue of jurisdiction. They find that there is no statutory authority for the Federal Court to issue an injunction in aid of the Canadian Human Rights Commission pending the determination of a complaint by a tribunal. They would dismiss this appeal.
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