After two false starts, the Canadian Human Rights Commission, egged on by the relentless Richard Warman, finally got its contempt of court case into Federal Court in November of 2010. There Judge Harrington ruled that, as Mr. Tremaine had not been served with notice of the Federal Court order (enforcing the Canadian Human Rights Tribunal’s “cease and desist order” (issued in February, 2007) until the summer of 2009, he could not be held in contempt of court for postings in 2007! The chagrined Canadian Human Rights Commission appealed to the Federal Court of Appeal. The appeal was heard September 19, 2011.The Federal Court of Appeal decision, handed down October 26, 2011, noted: “While the respondent had knowledge of the Tribunal’s February 2, 2007 order, he did not have knowledge that the order had been registered with the Court until at least March 2009 – when a copy of the certificate was included in the show cause materials. As such, he could not be found guilty of contempt with respect to material posted on the Internet before that dateAs to the material which Mr. Tremaine allowed to remain on the Internet after March 2009, the Federal Court Judge accepted the respondent’s argument that the order did not make it sufficiently clear that he was to remove this material. In his view, the reference to “material of the type” in the Tribunal’s order refers to material that is distinct and separate from the material which was actually found by the Tribunal to violate subsection 13(1). Having so found, the Federal Court Judge dismissed the application brought by the Commission seeking to have Mr. Tremaine found guilty of contempt.”
Terry Tremaine’s Contempt of Court Case May Be Headed to the Supreme Court
The Federal Court of Appeal issued a split decision. The majority, Judge Marc Noel and Eleanor Dawson upheld the appeal. “I would allow the appeal,” wrote Judge Noel, “set aside the decision of the Federal Court Judge and giving the judgment which he ought to have given, I would find Mr. Tremaine in contempt of the order of the Tribunal for having communicated through the Internet prohibited material after February 2, 2007, and would remit the matter to the Federal Court Judge for sentencing, the whole with costs in favour of the Commission throughout.”
However, Judge Denis Pelletier wrote a strong dissent. Douglas H. Christie, Mr. Tremaine’s lawyer, is seeking leave to appeal to the Supreme Court, leave, we are advised, which is usually given when there is a dissent.
Judge Pelletier argued: “In my view, before a person can be found to be in contempt of court as a result of disobeying a tribunal order, that person must have notice that the tribunal order was filed in the Federal Court so that they aware that they are disobeying what is now a court order. As I understand my colleague’s reasons, his position is that notice of filing of the tribunal order in the Federal Court is not necessary to support a finding of contempt of court. It is enough that the person knowingly and wilfully disobeys a tribunal order. While the filing of the order in Federal Court is a necessary step in the enforcement of the order so as to seize the court with jurisdiction over the matter, notice that the order has been filed is not necessary condition for a finding of contempt of court since it is knowledge of the tribunal order which is material.The difference which underlies our two positions is the nature of the order being enforced. In my view, upon filing with the Federal Court, a tribunal order becomes a court order for the purposes of enforcement. My colleague’s position, as I understand it, is that the tribunal order remains a tribunal order, and only a tribunal order, even after it has been filed in the Federal Court. Nevertheless, a person who wilfully disobeys a tribunal order is liable to be found in contempt of court. For reasons which I will set out below, I am unable to agree with this position. …As a result, I find that the order which the Commission seeks to enforce against Mr. Tremaine is, as of the date of its filing in the Federal Court, an order of the Federal Court. …It follows from this that, in the case of Mr. Tremaine, acts committed, or a state of affairs which was allowed to continue, prior to his knowledge that the order of the Canadian Human Rights Tribunal had been filed in Federal Court cannot support a finding of contempt of Court. The Federal Court judge found that Mr. Tremaine was first made aware that the Tribunal’s decision had been filed in the Federal Court in March 2009. The Federal Court judge found that since the postings which formed the basis of the show cause summons were posted prior to that time, Mr. Tremaine could not be found in contempt of court.”
Judge Pelletier also endorsed Terry Tremaine’s contention that the Canadian Human Rights Tribunal order was vague. It is only subsequently that CHRC lawyer Daniel Poulin has insisted that it meant Terry Tremaine must remove all his STORMFRONT postings under the name Mathdoktor99 and remove, as well, his website http://nspcanada.nfshost.com., which also contains a lot of mainstream and innocuous items. The clear goal of the CHRC is to silence Terry Tremaine, not just to have him not post any more passages similar to the postings deemed to expose privileged groups to hatred or contempt.
Judge Pelletier observed: “The Federal Court judge also found that the order was not sufficiently clear to require Mr. Tremaine to remove from the Internet the material which had been found by the Tribunal to offend Section 13 of the CHRA.” Mr. Tremaine’s defence is that the Tribunal order did not require him to remove, or take down from the Internet the material which the Tribunal found was in contravention of the CHRA. As for the subsequent postings, Mr. Tremaine relies on the fact that they were made before the Tribunal order was filed in the Federal Court. In my view, the order made here does not contain a clear and unambiguous requirement that Mr. Tremaine remove from the Internet the material which the Tribunal found to be in violation of s. 13 of the CHRA. In its material parts, the order reads: ‘Terry Tremaine …cease the discriminatory practice of communicating material of the type that was found to violate Section 13(1) in the present case.’ As the Federal Court judge pointed out, “material of the type” is not the original material. … ‘It would have been easy enough for the Tribunal to order Mr. Tremaine to take down the website which he controlled and to cause to be removed from the Stormfront website the offensive material which he had posted there and to stipulate a date by which these things must be done. It did not do so. … I note that no date was specified by which the order was to be complied with. This is consistent with the view that the order dealt with prospective conduct only. As a result, I would dismiss the appeal with costs to Mr. Tremaine.”
Despite the fact this case is likely headed to the Supreme Court, the Canadian Human Rights Commission is still pressing for a sentencing hearing. “The Commission wants to move forward with sentencing,” Mr. Tremaine told the Free Speech Monitor. [Sentence him first and hold the trial later in good George Orwell style.] No date has been set for this and Douglas Christie is strongly resisting any such legal end-run.