Canadian Human Rights Commission v. Canadian Liberty Net et al., (1996) 192 N.R. 313 (FCA)

• Judge: Pratte, Strayer and Linden, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 25, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 192 N.R. 313 (FCA)

CHRC v. Cdn. Liberty Net (1996), 192 N.R. 313 (FCA)

MLB headnote and full text

In The Matter Of proceedings before the Canadian Human Rights Tribunal, Re: Canadian Human Rights Commission v. Canadian Liberty Net and Derek J. Peterson.

Canadian Human Rights Commission (applicant/respondent) v. Canadian Liberty Net and Tony McAleer (alias Derek J. Peterson) (respondents/appellants)

(A-848-92)

Indexed As: Canadian Human Rights Commission v. Canadian Liberty Net et al.

Federal Court of Appeal

Pratte, Strayer and Linden, JJ.A.

January 25, 1996.

Summary:

A number of complaints were filed with the Canadian Human Rights Commission alleging that Canadian Liberty Net operated a telephonic hate message system. The phone line was in the name of one Peterson (real name: McAleer). The Commission re­quested a Human Rights Tribunal to hear the complaints. Before the Tribunal met, the Commission sought an interlocutory injunc­tion from the Federal Court of Canada, Trial Division, to prevent Canadian Liberty Net and McAleer from communicating hate mes­sages by telephonic means pending a hear­ing by the Tribunal.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 48 F.T.R. 285, granted the injunction. Canadian Liberty Net continued to transmit messages from the United States. The Commission applied to have Canadian Liberty Net and McAleer found in contempt of court.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 56 F.T.R. 42, allowed the application. In a separate deci­sion reported 56 F.T.R. 157, the court sen­tenced McAleer to two months' imprison­ment plus a $2,500 fine or one month's im­prisonment in default. The court fined Ca­nadian Liberty Net $5,000. Canadian Liberty Net and McAleer appealed.

The Federal Court of Appeal dismissed the appeal but reduced McAleer's prison sen­tence to the two days served when a stay allowed him to be released pending this appeal.

[Editor's note: The Federal Court of Appeal, in a decision reported 192 N.R. 298 allowed an appeal by Canadian Liberty Net and McAleer from the injunction order itself and set aside the injunction.]

Contempt - Topic 690

Contempt - What constitutes - Judgments and orders - Injunctions - Disobedience of - Canadian Liberty Net and McAleer (alias Peterson) operated a telephone mes­sage service, whereby callers could listen to various messages - Complaints about the messages were filed with the Canadian Human Rights Commission - The Com­mission requested a Human Rights Tribu­nal to hear the complaints - The Commis­sion obtained an interlocutory injunction restraining the message service pending the Tribunal's hearing - Canadian Liberty Net and McAleer transmitted the messages from the United States - The Federal Court of Appeal affirmed a Trial Division decision that held that Canadian Liberty Net and McAleer had breached the in­­junc­tion - See paragraphs 6 to 11.

Contempt - Topic 2647

Defences - Particular defences - Invalidi­ty of order disobeyed - The Federal Court of Canada, Trial Division, issued an in­junction prohibiting Canadian Liberty Net and McAleer (alias Peterson) from com­municating telephonic hate messages - Canadian Liberty Net and McAleer ap­pealed the injunction arguing its in­validity - Before a decision (allowing the appeal) was rendered, Canadian Liberty Net and Mc­Aleer transmitted the messages from the United States - The Trial Divi­sion found them guilty of contempt - They ap­pealed the contempt order arguing the in­junction's invalidity and that an invalid injunction order could not be the basis of a contempt charge - The Federal Court of Ap­peal dismissed the appeal holding that court orders must be obeyed even while they are legally challenged in the courts in an orderly way - See para­graphs 12 to 24.

Contempt - Topic 3305

Punishment - Mitigation - The Federal Court of Canada, Trial Division, found Ca­nadian Liberty Net and McAleer (alias Peterson) guilty of contempt for violating an injunction - The court sentenced Mc­Aleer to two months' imprisonment plus a $2,500 fine or one month's im­prisonment in default - The court fined Canadian Liberty Net $5,000 - Canadian Liberty Net and McAleer, appealed both the in­junction and the contempt order - Mc­Aleer served two days until a stay allowed him to be released pending the appeal from the contempt order - The Federal Court of Appeal affirmed the contempt or­der but, in a separate judg­ment, set aside the injunction as invalid - The court con­sidered the injunction's in­validity as a mitigating factor in reducing McAleer's im­prisonment to the two days already served - The court affirmed the fines - See paragraphs 25 to 30.

Cases Noticed:

Canadian Human Rights Commission v. Canadian Liberty Net et al. (1996), 192 N.R. 298 (F.C.A.), refd to. [para. 12].

Taylor and Western Guard Party v. Cana­dian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191; 75 D.L.R.(4th) 577, consd. [para. 17].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194, consd. [para. 18].

Canadian Transport (U.K.) Ltd. v. Als­bury, [1953] 1 D.L.R. 385 (B.C.C.A.), affd. [1953] 1 S.C.R. 516, consd. [para. 18].

Poje v. British Columbia (Attorney Gen­eral) - see Canadian Transport (U.K.) Ltd. v. Alsbury.

Newfoundland (Treasury Board) v. New­foundland Association of Public Em­ployees (1986), 59 Nfld. & P.E.I.R. 93; 178 A.P.R. 93 (Nfld. C.A.), consd. [para. 19].

Hadkinson v. Hadkinson, [1952] 2 All E.R. 567 (C.A.), consd. [para. 19].

Eastern Trust Co. v. MacKenzie, Mann & Co. (1915), 31 W.L.R. 248 (P.C.), refd to. [para. 19].

British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 54 B.C.L.R.(2d) 129 (S.C.), refd to. [para. 22].

R. v. G.M. (1992), 58 O.A.C. 390; 11 O.R.(3d) 225 (C.A.), refd to. [para. 26].

Drewry v. Thacker (1819), 3 Swan. 529; 36 E.R. 963, refd to. [para. 27].

Dunn v. Board of Education of Toronto (1904), 7 O.L.R. 451 (H.C.), refd to. [para. 27].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 13(1) [para. 3].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 3, sect. 44 [para. 22].

Federal Court Rules, rule 355 [para. 2].

Authors and Works Noticed:

Kerr, A Treatise on the Law and Practice of Injunctions (6th Ed. 1981), generally [para. 21].

Sharpe, Dean Robert, Injunctions and Spe­cific Performance (2nd Ed. 1992), p. 6-12 [paras. 21, 27].

Counsel:

Douglas H. Christie, for the appellants;

Joseph J. Arvay, Q.C., for the respondent.

Solicitors of Record:

Douglas H. Christie, Victoria, B.C., for the appellants;

Arvay, Finlay, Victoria, B.C., for the re­spondent.

This appeal was heard at Vancouver, British Columbia, on December 6, 1995, by Pratte, Strayer and Linden, JJ.A, of the Federal Court of Appeal.

The decision of the Court of Appeal was delivered at Ottawa, Ontario, on January 25, 1996 and the following opinions were filed:

Linden, J.A. (Strayer, J.A., concurring) - see paragraphs 1 to 30;

Pratte, J.A., dissenting - see paragraphs 31 to 33.