Warman v. Canadian Human Rights Commission, (2014) 464 N.R. 87 (FCA)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Dawson, Trudel and Webb, JJ.A.
• Citation: (2014), 464 N.R. 87 (FCA),2014 FCA 192
• Date: 28 May 2014

Warman v. CHRC (2014), 464 N.R. 87 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2014] N.R. TBEd. SE.007

Terry Tremaine (appellant) v. Canadian Human Rights Commission and Richard Warman (respondents)

(A-493-12; 2014 FCA 192; 2014 CAF 192)

Indexed As: Warman v. Canadian Human Rights Commission

Federal Court of Appeal

Dawson, Trudel and Webb, JJ.A.

September 9, 2014.

Summary:

Following a complaint regarding alleged hate messages posted on two websites, a Canadian Human Rights Tribunal issued a cease and desist order against Tremaine in February 2007 and registered the order with the Federal Court. In March 2009, alleging that Tremaine was in contempt of the order, the Canadian Human Rights Commission moved for a show cause order. The motion was supported by an affidavit exhibiting internet downloads from the two websites in 2007, after the cease and desist order had been registered.

The Federal Court, in a decision reported at [2010] F.T.R. Uned. 538, issued a show cause order. The show cause hearing proceeded.

The Federal Court, in a decision reported at (2010), 378 F.T.R. 299, dismissed the contempt charge. The Commission appealed.

The Federal Court of Appeal, Pelletier, J.A., dissenting, in a decision reported at (2011), 423 N.R. 120, allowed the appeal, found Tremaine to be in contempt of the Commission's order and remitted the matter to the Federal Court for sentencing. Tremaine sought leave to appeal.

The Supreme Court of Canada, in a decision reported at (2012), 435 N.R. 391, denied leave to appeal.

The Federal Court, in a decision reported at (2012), 420 F.T.R. 290, sentenced Tremaine as follows: (1) he was to cease communicating material that was contrary to s. 13(1) of the Canadian Human Rights Act, to take steps to have material removed from two websites and to provide evidence that he had complied with the order within 15 days of service; (2) whether or not he complied with the order, he was to be imprisoned for 30 days; and (3) if he failed to comply with the order, he was to be imprisoned for a further six months or until he complied with the order. Tremaine appealed from the sentence.

The Federal Court of Appeal dismissed the appeal.

Contempt - Topic 3301

Punishment - General (incl. considerations) - In the context of an appeal from a sentence of imprisonment for civil contempt, the Federal Court of Appeal discussed the principles of sentencing for contempt and the standard of review on appeal - See paragraphs 19 to 26.

Contempt - Topic 3301

Punishment - General (incl. considerations) - Following a complaint regarding alleged hate messages posted on two websites, a Canadian Human Rights Tribunal issued a cease and desist order against Tremaine - Tremaine was found to be in contempt of the order - His sentence included an order to take steps to have material removed from two websites and to provide evidence that he had complied with the order within 15 days of service - The Federal Court of Appeal dismissed Tremaine's appeal from the sentence - The court rejected Tremaine's argument that the sentencing judge had erred in not considering that some of the work Tremaine sought to disseminate were books that were widely available - The parties had made submissions on this point before the sentencing judge, who had exercised his discretion and had issued the impugned order - There was no reason for the court to intervene - See paragraphs 45 to 48.

Contempt - Topic 3305

Punishment - Mitigation - [See second Contempt - Topic 3324 ].

Contempt - Topic 3324

Punishment - Imprisonment - General - Following a complaint regarding alleged hate messages posted on two websites, a Canadian Human Rights Tribunal issued a cease and desist order against Tremaine - Tremaine was found to be in contempt of the order and was sentenced to, inter alia, 30 days' imprisonment - The Federal Court of Appeal dismissed Tremaine's appeal from the sentence - The sentence was not "manifestly harsh, excessive, and demonstrably unfit" - The court agreed with Tremaine that the judge provided little explanation for the sentence - He did not discuss a sentencing range or aggravating and mitigating factors - However, the 30 day sentence was reasonable, even in light of the restraint principle and the fact that this was Tremaine's first contempt offence - Not only was the sentence fit, but it was also at the lower end of the range of sentences imposed in similar cases - See paragraphs 27 to 36.

Contempt - Topic 3324

Punishment - Imprisonment - General - Following a complaint regarding alleged hate messages posted on two websites, a Canadian Human Rights Tribunal issued a cease and desist order against Tremaine - Tremaine was found to be in contempt of the order and was sentenced to, inter alia, 30 days' imprisonment - The Federal Court of Appeal dismissed Tremaine's appeal from the sentence - The court rejected Tremaine's argument that the sentencing judge had neglected to consider relevant mitigating factors - None of the factors argued served to mitigate Tremaine's sentence - Tremaine showed no remorse and made no sincere apology - His "flagrant disregard" for the order demonstrated the substantial substantive gravity of the offence - Tremaine's disregard for the rule of law highlighted the need for the sentence to be sufficiently severe - See paragraphs 37 to 44.

Contempt - Topic 6000

Appeals - General - [See first Contempt - Topic 3301 ].

Cases Noticed:

Canadian Human Rights Commission v. Canadian Liberty Net et al., [1996] 1 F.C. 787; 192 N.R. 313 (F.C.A.), refd to. [para. 19].

Microsoft Corp. v. 9038-3746 Quebec Inc. et al. (2010), 403 N.R. 359; 2010 FCA 151, refd to. [para. 19].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 20].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 20].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 20].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 21].

Bremsak v. Professional Institute of the Public Service of Canada (2013), 449 N.R. 200; 2013 FCA 214, refd to. [para. 21].

Minister of National Revenue v. Marshall (2006), 294 F.T.R. 297; 2006 FC 788, refd to. [para. 22].

Baxter Travenol Laboratories Inc. v. Cutter (Canada) Ltd., [1987] 2 F.C. 557; 81 N.R. 220 (F.C.A.), refd to. [para. 23].

Canadian Human Rights Commission v. Winnicki (2007), 359 N.R. 101; 2007 FCA 52, refd to. [para. 23].

Lyons Partnership, L.P. v. MacGregor (2000), 186 F.T.R. 241 (T.D.), refd to. [para. 23].

Minister of National Revenue v. Ryder (2014), 455 F.T.R. 307; 2014 FC 519, refd to. [para. 23].

Canada (Procureur général) v. de l'Isle et al. (1994), 79 F.T.R. 24; 56 C.P.R.(3d) 371 (T.D.), refd to. [para. 24].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1987] 3 F.C. 593; 78 N.R. 180 (F.C.A.), affd. [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 30].

Canadian Human Rights Commission v. Heritage Front and Droege (1994), 78 F.T.R. 241; 26 C.H.R.R. D/315 (T.D.), refd to. [para. 33].

Counsel:

Andrew L. Hitchcock, for the appellant, Terry Tremaine;

Daniel Poulin, for the respondents, Canadian Human Rights Commission and Richard Warman.

Solicitors of Record:

Legal Aid Saskatchewan, Regina, Saskatchewan, for the appellant, Terry Tremaine;

Canadian Human Rights Commission, Ottawa, Ontario, for the respondents, Canadian Human Rights Commission and Richard Warman.

This appeal was heard at Regina, Saskatchewan, on May 28, 2014, by Dawson, Trudel and Webb, JJ.A., of the Federal Court of Appeal. On September 9, 2014, at Ottawa, Ontario, Trudel, J.A., delivered the following reasons for judgment for the court.