Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 1) (1992), 26 C.H.R.R. D/194 (F.C.T.D.) [Eng./Fr. 26 pp.]: Injunction issued to stop telephonic messages - exposure to hatred on the basis of race or religion
Keywords: HATE PROPAGANDA - exposure to hatred on the basis of race or religion - COMMUNICATIONS - telephonic transmission of hate message - FREEDOM OF EXPRESSION - freedom of speech and communication of hate messages - human rights legislation provides for reasonable limits to freedom of expression - CANADIAN CHARTER OF RIGHTS AND FREEDOMS - s. 2(b) (freedom of expression) - application of s. 1 (reasonable limits) - HUMAN RIGHTS - nature and purpose of human rights legislation
INJUNCTION - application for injunction by human rights commission - injunction restraining telephonic messages - survey of the law - COURTS - JURISDICTION - court of competent jurisdiction to order injunction
Summary: This is an application by the Canadian Human Rights Commission for an interlocutory injunction to prevent Canadian Liberty Net and Derek J. Paterson from playing telephonic messages which according to the Commission, are likely to expose persons to hatred and contempt because of their race, colour, and ancestry. The Commission seeks an injunction to prevent the respondents from continuing to play the impugned messages until such time as a Canadian Human Rights Tribunal can determine whether they contravene s. 13 of the Canadian Human Rights Act.
The issues before the Court are: (1) can the Court issue an injunction in these circumstances, and (2) should the Court do so?
The Commission argues that ss. 25 and 44 of the Federal Court Act gives the Federal Court authority to issue the injunction requested. Section 25 provides that the Federal Court Trial Division has original jurisdiction between subject and subject in any case for which a claim for relief or remedy is made by virtue of the laws of Canada if no other court has jurisdiction in respect of that claim or remedy. Section 44 provides that in addition to other relief, the Court may grant an injunction in all cases in which it appears to be just or convenient to do so.
The Federal Court Trial Division finds that it was given these powers pursuant to s. 101 of the Constitution Act, 1867 which allows the Parliament of Canada to establish courts "for the better administration of the laws of Canada." The Court finds that in order to have jurisdiction there must be a statutory grant of authority and an existing body of federal law. The Court finds that ss. 25 and 44 are a statutory grant of authority, and the Canadian Human Rights Act is a federal law which nourishes the grant of jurisdiction to the Court.
The Canadian Human Rights Act discourages discriminatory practices and can ultimately enjoin a party from committing such a practice by the order of a Canadian Human Rights Tribunal. The Court notes that it has no jurisdiction to hear and decide a human rights complaint and issue a final cease and desist order, because this is exclusively within the jurisdiction of a Canadian Human Rights Tribunal. It also notes that Tribunals, however, have no jurisdiction to issue interlocutory injunctions as the Act provides them with no such power.
The Court concludes that it has jurisdiction to grant an interlocutory injunction in these circumstances, since this Court is established to provide for the better administration of the laws of Canada, including the Canadian Human Rights Act.
The Court also concludes that it should grant the injunction. It rejects the respondents' argument that enjoining them from playing the messages on the Canadian Liberty Net line violates their freedom of speech and expression. The Court finds that Canadian Liberty Net's messages disparage and ridicule Jews and non-whites as sub-human and make light of the lethal fury of the Nazis' Holocaust. The Charter does not guarantee the right to disseminate such messages. There is an inherent limitation on freedom of speech and expression when they conflict with rights articulated in ss. 7, 12, 15, 27, and 28 of the Charter. Also, the limits on freedom of speech are prescribed by law in the Canadian Human Rights Act.
The Court issues an interlocutory injunction enjoining the respondents by themselves or by their servants, agents, volunteers, or co-operants from continuing to play the impugned messages until such time as the human rights complaint filed against them is heard and decided.
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