Holocaust denier to argue tribunal is not impartial

by Jim Bronskill

Internet issue at heart: Commission received complaints about Zundel's site

HOLOCAUST denier Ernst Zundel heads to court tomorrow in a bid to halt a human-rights inquiry into his Internet Web site by arguing the process lacks impartiality.

Mr. Zundel's lawyer will try to persuade the Federal Court that the quasi-judicial tribunal hearing the complaints isn't independent enough from the Canadian Human Rights Commission to be fair and impartial.

The commission ordered the ground-breaking tribunal inquiry after receiving two 1996 complaints that material on Mr. Zundel's Web site was likely to expose Jews to hatred or contempt.

The tribunal, which began hearing witnesses in the fall of 1997, has faced persistent opposition from Mr. Zundel.

In his latest attempt to block the process, Mr. Zundel will point to a landmark ruling last year in which Federal Court Justice Donna McGillis stopped a human-rights tribunal hearing into a pay-equity complaint by telephone-company employees.

Judge McGillis ruled there could be a perception of bias since the Human Rights Commission sets the wages and tenure of tribunal members.

Rene Duval, lawyer for the commission, says Mr. Zundel missed the chance to raise his bias concerns at the outset of the tribunal hearings on his Internet site.

"We're going to argue that he waived that objection by not bringing it at the first reasonable opportunity, as he should have," Mr. Duval said in an interview.

Tomorrow's case, to be heard in Toronto, is one element of a two-pronged attack by Mr. Zundel.

On Wednesday, in a separate Federal Court case, he will argue the Human Rights Commission lacks jurisdiction over the Internet and therefore had no business ordering the tribunal hearings.

The Canadian Human Rights Act prohibits the use of telephone lines to spread messages likely to expose people to hatred or contempt on the basis of race, religion, or ethnic origin.

Mr. Zundel contends the Internet does not come under the umbrella of "telephonic communications" defined in the act.

The commission argues that because a computer modem operates through telephone lines, hate messages on the Internet would fall under the act.

"We do have jurisdiction over the Internet," Mr. Duval said.

He added that Mr. Zundel's argument is premature because the tribunal has yet to hear all of the evidence. "The tribunal must run its course."

The Zundel matter marks the first time a Canadian human- rights tribunal has examined complaints alleging hate on the Internet.

Tribunals have, however, dealt with similar cases related to recorded telephone messages. In those cases, the courts have ultimately ruled that while restricting the spread of hate propaganda limits freedom of expression, it is a justifiable restriction under the Constitution.

Our opinion

THE article misses the main argument by Zündel, that his Website is based in the USA, which protects freedom of speech against Hell and High Water; and that it is in fact not "his" Website anyway.