The firm of Dale Streiman Law is delighted to congratulate our former partner, Marvin Herry Kurz on his elevation from the Ontario Court of Justice to the Superior Court of Justice.

Marvin was a critical part of the long standing law firm of Dale Streiman and Kurz LLP until his initial appointment to the Ontario Court of Justice on December 2nd, 2015.

Twenty three months later, the Federal Government saw the wisdom of appointing Marvin to the Superior Court of Justice where he will be sitting in Milton.

We are delighted at this long overdue recognition of Marvin’s unique talents, including his constant demonstration of both his humanity and sporting acumen.

His “lordship” as we jocular refer to him, will be formally sworn in sometime in mid-December 2017. The partners and all of the staff of Dale Streiman Law LLP take great pride in sharing this announcement with one and all.

Justice Marvin Kurz was called to the bar in 1983. For over 25 years, he has been a partner at the firm Dale, Streiman Law LLP, working in family law, civil litigation and human rights. Previously, he worked as an associate at the firms of Pinkofsky, Lockyer and Kwinter, and Zuker, Dale and Streiman. Justice Kurz is the Chair of the Peel Family Law Committee and Mediation Arbitration Peel. Previously, he was a member of the Board of Directors for Access Education Guatemala, the Canadian Arab – Jewish Leadership Dialogue Group, and the League for Human Rights of B’nai Brith Canada for over 30 years.
Chief Justice Lise Maisonneuve has assigned Justice Kurz to preside in Halton.

Marvin Kurz, long-serving national legal counsel for B’nai Brith Canada and its League for Human Rights, has been honoured with Peel Law Association’s (PLA) Lifetime Achievement Award.

“The award is based on a substantial contribution made in the practice of law and in the local community by a member of the PLA,” said Rae White, president of the association. “[Kurz] is the definition of a reasoned man: he is rational, logical, consistent and articulate. He’s a very giving person…. Our community holds Marvin up to be the standard that all lawyers should want to be. He is a mentor, a teacher and a pillar of his community.“Marvin is very generous with his time…. He’s a selfless person and it’s very admirable.”

Kurz served on the PLA board from 2003 to 2006 and from 2008 to 2012 and he has been chair of its ad hoc committee since 2008, White said.He is the seventh recipient of the PLA’s Lifetime Achievement Award. He was given the award at the PLA’s annual general meeting held at the Terrace on the Green in Brampton last week.Kurz is a partner at Dale Streiman Law LLP in Brampton where he spoke to the Jewish Tribune by phone on Monday. He said he was “shocked” by the honour.

“I was very surprised because it came out of the blue,” said Kurz. “It was very moving that my peers thought well enough of me to give me a very significant award…. Part of their consideration was the pro bono work I’ve done for B’nai Brith and its importance to the law and to Canadian society.”Court cases he has worked on with B’nai Brith include those involving Holocaust denier Ernst Zundel and James Keegstra, who was convicted of promoting hatred against Jews, and have addressed issues such as free speech, Kurz said.

The seasoned litigator has appeared before all levels of the court from the Ontario Superior Court to the Supreme Court of Canada.He has served as a deputy judge in small claims court since 1999 and as chair of the PLA’s Peel Family Law Committee since he co-founded it in 2008. He also served as chair and co-chair of the PLA’s Continuing Legal Education Committee from 2003 to 2006 and from 2008 to 2012.

OTTAWA—In an important decision that upheld the main anti-hate provisions in Saskatchewan’s human rights law, Canada’s top court ruled vitriolic anti-gay speech in flyers distributed by a Christian activist is not protected by the Charter.

In doing so, the Supreme Court of Canada unanimously struck down a small part of the province’s human rights code as an infringement on free speech and religion. It removed vague wording that prohibited the distribution of material that “ridicules, belittles or otherwise affronts the dignity” of people on the basis of their sexual orientation. However, the high court, including Chief Beverly McLachlin, gave broad endorsement to the law’s equality protections for a vulnerable minority against the spreading of “hatred.”Justice Marshall Rothstein, writing for the 6-0 panel, found two of four flyers handed out by William Whatcott in 2001 and 2002 in Regina and Saskatoon crossed the line into “harmful” discourse, but two did not.

On that basis the court trimmed an original order against Whatcott to compensate the complainants from $17,500 to $7,500.The ruling was denounced by the man at the center, William Whatcott of Weyburn, Sask., as rubbish.Whatcott said the ruling criminalizes a large part of Christian speech on homosexuality and morality. Unapologetic, he suggested he may put out another flyer on expressing that viewpoint and it will be written in what he calls his usual blunt and forthright manner.

Whatcott spent several years in Toronto about 15 years ago, when he led anti-abortion demonstrations in front of Jarvis Collegiate and ran as a fringe candidate in the 1999 provincial election.The court said two of Whatcott’s hand-delivered leaflets had “hallmarks” of hatred, targeting gays as a menace that could threaten the safety and well-being of others, referring to respected sources like the Bible to lend credibility, and using “vilifying and derogatory representations to create a tone of hatred.”

“It delegitimizes homosexuals by referring to them as filthy or dirty sex addicts and by comparing them to pedophiles, a traditionally reviled group in society,” wrote Rothstein.The court said the law’s purpose is to “prevent discrimination by curtailing certain types of public expression” but it is tailored, and does not ban private expression of views.
While acknowledging it is a limit on free speech and expressions of religious belief, the court said it struck “an appropriate balance” with other Charter values, namely “a commitment to equality and respect for group identity and the inherent dignity owed to all human beings.”

The decision was hailed by advocates of equality rights for gays and lesbians and other vulnerable minority groups, as well as by those who believe it sent a strong signal that Canadian law — whether human rights acts or criminal codes — can be used to counter hateful speech and propaganda likely to cause harm.“The court wisely held that connecting speech to morality or public debate doesn’t immunize it from restrictions on hate speech,” said Robert Leckey, president of Egale Canada, the advocacy group for gay and lesbian rights that had intervened in the case.B’nai Brith lawyer Marvin Kurz said the ruling targets only speech that is “the worst of the worst.”

“It doesn’t matter whether I’m offended by what Mr. Whatcott says,” said Kurz. “The question is whether there’s going to be harm.” Ontario’s human rights code does not have the exact same ban on hateful publications or flyers that Saskatchewan had. Kurz said Wednesday’s ruling nevertheless counters a backlash that had been growing against the use of human rights laws and solidifies overall efforts to fight harmful speech, whether it be anti-gay or anti-Semitic.

Kurz added the court did not establish a hierarchy of rights, or conclude that equality rights should trump freedom of religion and free speech.“What it says is religion isn’t the only right, and religion cannot be used as a cloak for illegal activity; religion cannot be used as a cloak for hate.”The Evangelical Fellowship of Canada, which intervened in support of Whatcott’s right to state his religious views freely without limit by the state, offered a muted reaction in a written statement noting that at least the high court made clearer what it does not consider hate speech.The ruling is in line with a trio of decisions in 1990 (Keegstra, Taylor and Andrews) that saw the Supreme Court of Canada uphold various Canadian Criminal Code and human rights code prohibitions against hate speech.

Human rights codes do far more good than harm. Even if you agree with Ezra Levant’s decision to publish the controversial cartoons of Mohammed, that’s no reason to call for an end to human rights commissions

MARVIN KURZ
Special to Globe and Mail Update

In February, Ezra Levant decided to parachute straight into the eye of the controversy over the Danish cartoons depicting the Prophet Mohammed.

In reprinting the cartoons, the editor of the Western Standard made a political statement that the free speech rights of Canadians should not be held hostage to anti-Western rioters. Reasonable people can quibble about whether it was necessary to reprint the cartoons, yet again, to make his point. Few could argue with the courage in his convictions.

Happily, Mr. Levant has not been met with riot in the streets. Rather, a complaint has been filed against him with the Alberta Human Rights and Citizenship Commission. That single undetermined complaint has caused many civil libertarians to panic. They use it to justify a call to scrap a human rights system that has protected Canadians from hate propagandists for decades. Before we proclaim Mr. Levant a free speech martyr, we should at least let the Commission do its job.

The complaint against Mr. Levant is an odd one. It was issued by Syed Soharwardy, the founder of a group calling itself the Islamic Supreme Council of Canada. The text of the complaint bespeaks more personal and religious offence than group libel. It complains that Mr. Levant called the complainant a “radical” and then had the temerity to defend the publication of the cartoons in “other media.” It describes the publication of the cartoons as hateful against Mr. Soharwardy personally because, he claims, he is a direct descendant of the Prophet Mohammed.

This is not Mr. Soharwardy’s first brush with group defamation. He has published an article describing Israel’s treatment of Palestinians as “worse than the Holocaust.”

In letters accompanying the complaint, Mr. Soharwardy buttresses his case with Koranic verses and with hate mail that he received before the cartoons were even republished. Although the Commission has not yet investigated, let alone proceeded with this complaint, many in the human rights community have reacted as if Mr. Levant had already been tried, convicted and executed.

The Globe and Mail’s Margaret Wente wrote that “if these things are crimes, we are all in trouble.” Canadian Civil Liberties Association head, Alan Borovoy, writing in the Calgary Herald, stated that he never envisioned such a complaint when he fought to create the first human rights commission in Ontario. He wants the law to be changed. The National Post’s George Jonas hoped that the actions of Alberta’s “Orwellian commissars” would cause Canadians to rethink human rights commissions.

The problem with this kind of thinking is that, to paraphrase Mark Twain, the rumours of Mr. Levant’s demise are quite exaggerated. The human rights law under attack has many safeguards. Mr. Levant can argue that the cartoons may offend, even deeply, but they are legal.

In saying this, he can point out that the cartoons may be blasphemous, but our hate speech laws are not aimed at blasphemy. The photographic depiction Piss Christ and the Dung Madonna collage, as well as the novel The Da Vinci Code with its suggestion of Jesus’s sexual relationship with Mary Magdalene, have been endlessly reprinted without raising the ire of human rights commissions. Although many of the Danish cartoons profoundly offend Muslims, Mr. Levant can argue that the Supreme Court of Canada ruled in the landmark case of Canada v. Taylor that human rights law does not deal with “offensiveness.” It only deals with hate propaganda.

That term is defined as expressions that raise the “most ardent and extreme” emotions against an entire group. Statements prohibited by human rights tribunals have included claims that gays should be murdered in bogs, all blacks are rapists, all Muslims are responsible for the terror of 9/11, and that the Jews are a criminal people. Mr. Levant can argue that the cartoons he has reproduced express no such views about all Muslims. Some are anodyne portraits of Mohammed. Even the most troubling cartoon, which depicts the Prophet with a bomb in his turban, is capable of many meanings. Many see it as an illustration of the notion that the Prophet’s religion has been hijacked by radicals, not that all Muslims are terrorists. All that the Commission has done so far is ask Mr. Levant to respond to the complaint and indicate whether he wishes to enter into voluntary conciliation.

As the Commission’s director told Ms. Wente, the Commission’s involvement in the case “doesn’t mean we think there is any merit to it.” Only if the case cannot be resolved, will the Commission investigate and determine whether it merits further action. Nonetheless, many opponents of human rights law object even to the fact that the Commission has the right to investigate. To the contrary, the Commission’s investigative powers are a strength not a weakness of the human rights system. They serve to screen against frivolous or politically motivated complaints, which is how Mr. Levant characterizes this one.

Hate propaganda poses a terrible threat to the world. For centuries it has been a root cause of genocide, slavery and oppression.

Canada’s human rights codes have offered some of our most effective legal tools to combat this ill. They have shut down many websites and telephone lines that have targeted minority groups, including Jews and Muslims.

Surely one uninvestigated complaint is not reason for us to say that the sky is falling.

Marvin Kurz, honorary legal counsel of the League for Human Rights of B’nai Brith Canada, has appeared before human rights tribunals in a number of hate propaganda cases. The views expressed in this article are his own.

Date: 20050224
Docket: 29865

Between:

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Her Majesty the Queen Appellant
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Krystopher Krymowski, Ryan Douglas Marshall, Quinn Mason McFarlane, Michael Peter Schultz, J.J.V. and A.M.V. Respondents ‑ and ‑ Attorney General of Canada, League for Human Rights of B’Nai Brith Canada and Canadian Jewish Congress Interveners

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

Reasons for Judgment: Charron J. (McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Abella JJ. concurring)

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Criminal law — Hate propaganda — Wilful promotion of hatred — Whether Crown failed to prove that wilful promotion of hatred was against “Roma” as particularized in information — Whether trial judge ought to have taken judicial notice of dictionary definitions demonstrating relationship between gypsies and Roma — Criminal Code, R.S.C. 1985, c. C‑46, s. 319(2).

After participating in a demonstration in front of a motel housing Roma refugees seeking entry into Canada, the accused were charged under s. 319(2) of the Criminal Code with the wilful promotion of hatred against “an identifiable group, to wit Roma, by communicating statements, including the written statements: ‘Honk if you hate Gypsies’, ‘Canada is not a Trash Can’, and ‘You’re a cancer to Canada’”. The defence conceded that the Roma are an identifiable group but argued that the demonstrations were directed against “gypsies” and there was no evidence that “Roma” is the same as “gypsies”. The trial judge refused to take judicial notice of the shared meaning of these terms. Since the Crown had failed to prove an essential element of the offence, the trial judge acquitted the accused. The Crown’s appeals to the summary conviction appeal court and the Court of Appeal were dismissed.

Held:

The appeal should be allowed. The acquittals are set aside and new trials ordered.

The gist of the offence under s. 319(2) is the wilful promotion of hatred against any identifiable group. In this case, the Crown particularized the group as “Roma”. The relevant questions were whether the accused made some or all of the statements in the information and whether the statements promoted hatred of the Roma. It was not necessary for the Crown to prove that the terms “gypsies” and “Roma” were interchangeable. It was incumbent upon the trial judge to look at the totality of the evidence and the reference to “gypsies” was but one item to consider. The ethnic flavour to the demonstration, the fact that it was outside a motel housing refugee claimants who were at times described by the witnesses as Roma, and the fact that the Roma people had been persecuted by the Nazis while a Nazi theme was apparent at the demonstration, were all factors to take into account. The trial judge misdirected himself and erred in law by focussing entirely on one statement in the information. As well, the trial judge should have taken judicial notice of dictionary definitions showing that “gypsy” can refer to “Roma”, and he should have considered that fact together with the rest of the evidence. [13] [17-20] [24]

Cases Cited

Referred to: R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. McCune (1998), 131 C.C.C. (3d) 152; R. v. Groot, [1999] 3 S.C.R. 664; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 318(4), 319(2), (3), 839(1). Supreme Court Act, R.S.C. 1985, c. S‑26, s. 40.

Authors Cited

New Oxford Dictionary of English. Oxford: Clarendon Press, 1998, “gypsy”, “rom”, romany”. Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999

APPEAL from a judgment of the Ontario Court of Appeal (O’Connor A.C.J.O., Carthy and MacPherson JJ.A.) (2003), 65 O.R. (3d) 75, 227 D.L.R. (4th) 504, 171 O.A.C. 369, 175 C.C.C. (3d) 112, [2003] O.J. No. 1920 (QL), affirming an order of Ewaschuk J., 2002 CarswellOnt 5516, affirming an order of Otter J. dismissing charges of wilfully promoting hatred, 2000 CarswellOnt 5870. Appeal allowed and new trials ordered.

Jamie C. Klukach and Eliott Behar, for the appellant
David Gomes and Peter Lindsay, for the respondents
Cheryl J. Tobias, for the intervener the Attorney General of Canada
Marvin Kurz and Steven Klein, for the intervener the League for Human Rights of B’Nai Brith Canada
Joel Richler and Matthew Horner, for the intervener the Canadian Jewish Congress.
The judgment of the Court was delivered by
Charron J

Introduction

1. The respondents were charged with the wilful promotion of hatred arising from their participation in a demonstration to protest against the entry of Roma refugee claimants into Canada. At the conclusion of the Crown’s case, the defence called no evidence and argued that the Crown had failed to prove that the wilful promotion of hatred was against “Roma”, as particularized in the information. Counsel argued that the evidence showed only that the actions of the demonstrators were directed toward “gypsies” and that there was “no evidence that Roma is the same as Gypsies, similar to Gypsies, related to Gypsies”. The trial judge refused to accede to the Crown’s requests that he take judicial notice of the shared meaning of the terms, or that he permit the amendment of the information or a reopening of the Crown’s case to address this point. He accepted the defence argument that the Crown had failed to establish an essential element of the offence and acquitted the respondents (2000 CarswellOnt 5870). The Crown’s appeal to the summary conviction appeal court was dismissed (2002 CarswellOnt 5516) as was its further appeal to the Court of Appeal for Ontario ((2003), 65 O.R. (3d) 75). Leave to appeal to this Court was granted pursuant to s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26.

2. In my view, the trial judge erred in law in finding, in effect, that it was necessary for the Crown to prove that the terms “gypsies” and “Roma” were interchangeable. In focussing on this narrow issue, he failed to consider whether, on the totality of the evidence, the Crown had established that “Roma” were targeted by the accused. Because I have concluded that there must be a new trial, I will only review the facts to the extent necessary to dispose of the appeal

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Background

3. Some weeks prior to this incident, there was a large influx of Roma refugee claimants into Canada which attracted considerable media attention and gave rise to some public controversy. On August 26, 1997, about 25 persons participated in a demonstration in front of the Lido Motel in Scarborough, Ontario, which at that time was temporarily housing the refugees while they awaited the outcome of their claims. The demonstration included chants and placards. The placards stated, among other things, “Honk if you hate Gypsies”, “Canada is not a Trash Can”, “You’re a cancer to Canada” and “G.S.T. — Gypsies Suck Tax”. The chants included statements such as “Gypsies Out”, “How do you like Canada now?” and “White power”. Some participants were seen giving the “Sieg Heil” Nazi salute. Nazi and American Confederate flags were used in the demonstration. Some of the clothing, accessories and footwear worn by the demonstrators was described as typical “Skinhead” accoutrements

4. The Crown alleged that the respondents were amongst the demonstrators. Separate informations establishing the charges under s. 319(2) of the Criminal Code, R.S.C. 1985, c. C-46, against both the adults and young persons accused in this matter read as follows:
. . . [the respondents] did wilfully promote hatred against an identifiable group, to wit Roma, by communicating statements, including the written statements: “Honk if you hate Gypsies”, “Canada is not a Trash Can”, and “You’re a cancer to Canada”, contrary to the Criminal Code of Canada.
The trial was held for the adult respondents, at the end of which the evidence was admitted in the proceeding against the young persons. For convenience, I will refer to the two separate proceedings as one.

5. During the course of the trial, the respondents admitted that the Roma were an identifiable group within the meaning of s. 319(2). The admission was confirmed by letter from counsel stating that “the Roma people are an identifiable group which were historically persecuted by the Nazis”. Two pages from an article about Nazi persecution of Roma authored by Ian Hancock were attached to the letter. The article referred to Roma and gypsies interchangeably. However, counsel’s letter expressly stated that the article excerpt was admitted solely as background and not as any further admission. The record is replete with examples showing that the witnesses, Crown counsel, both defence counsel and the trial judge referred to the refugee claimants indiscriminately as “Roma”, “Gypsy Roma” or “Romani Gypsies” throughout the proceedings.

6. At the conclusion of the Crown’s case, the defence called no evidence and closed its case. Following the Crown’s closing arguments, the defence made its closing submissions, the main argument being that the Crown had failed to prove an essential element of the offence as charged, namely that the accused wilfully promoted hatred against Roma, as all evidence pointed to “gypsies”, and no evidence linked “gypsies” to Roma.

7. In reply, the Crown submitted that the court could infer, from the wording of the informations, that “Roma” was referable to “gypsy”. The trial judge rejected that suggestion. Alternatively, the Crown argued that the court could take judicial notice of that fact, relying on the Hancock article and the author’s interchangeable use of the terms “Roma” and “gypsy”. The trial judge was unwilling to accept that position. The Crown therefore asked that the informations be amended by inserting the words “a.k.a. gypsies” after the word “Roma”. Following a two-day adjournment, the matter was argued more fully. The Crown again invited the court to take judicial notice of the synonymy of “Roma” and “gypsies” based on five dictionary definitions containing definitions of “Roma” and its varying forms (“Rom”; “Romany”) and “gypsy”.

8. According to the trial judge, the dictionaries did not evince a sufficient degree of uniformity in definitions because several definitions of “Rom” and “Roma” referred only to male gypsies and some dictionary and internet definitions of “gypsy” presented by the defence contained no reference to “Roma”. For this reason, and since the issue was “vital and highly contentious”, he concluded that the court should not exercise its discretion and take judicial notice on this matter.

9. Immediately after the trial judge’s ruling on judicial notice, the Crown applied to reopen its case for the purpose of establishing the fact in issue. The trial judge ruled against the Crown, finding that a reopening at this late stage in the proceedings would be unduly prejudicial to the accused.

10. The trial judge then dismissed the charge against all respondents finding that there was “no evidence whatsoever, or in any form, establishing beyond a reasonable doubt the willful promotion of hatred against Roma or that Roma are one and the same as or also known as Gypsies” nor was there any evidence that “Gypsies is a pejorative term for Roma as contended by the Crown” (paras. 35-36).

11. For brief reasons delivered orally, the summary conviction appeal court judge dismissed the Crown’s appeal, essentially finding no reason for interfering with the trial judge’s conclusions. On further appeal to the Court of Appeal for Ontario, the court dismissed the Crown’s appeal, on the basis that the summary conviction appeal judge had properly declined to interfere with the trial judge’s exercise of discretion in regard to judicial notice, amending the information and reopening the Crown’s case. The court expressed the view that the relative consistency between the dictionary definitions should probably have led to the trial judge taking judicial notice of those definitions. However, the court concluded that the summary conviction appeal judge’s rejection of the appeal on this ground was based on his assessment that, based on the evidence, taking judicial notice would not have changed the outcome of the trial, and, as such, the issue did not raise a question of law. Consequently, the Court of Appeal held that the matter was beyond the court’s appellate jurisdiction under s. 839(1) of the Criminal Code.

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Issues

12. The Crown argued that the courts below erred in law in their approach to the taking of judicial notice, the amendment of the information, and the reopening of the Crown’s case. I do not find it necessary to deal with the questions raised on this appeal as three discrete issues. All three issues were raised at trial in an attempt to meet the defence’s contention, accepted by the trial judge, that it was incumbent upon the Crown to establish that “gypsies” and “Roma” were interchangeable terms in order to prove its case. Hence, I propose to deal with the single issue of whether the trial judge erred in adopting this approach. In doing so, I will comment on the taking of judicial notice to the extent that the trial judge was requested to do so. However, I do not find it necessary to discuss any of the principles governing the amendment of the information or the reopening of the Crown’s case.

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Analysis

13. The gist of the offence under s. 319(2) of the Criminal Code is the wilful promotion of hatred against any identifiable group. The provision reads as follows:

14. The term “identifiable group” is defined in s. 318(4) as meaning any section of the public distinguished by colour, race, religion or ethnic origin

15. Certain defences are set out under s. 319(3):

16. The constitutional validity of s. 319(2) was upheld by this Court in R. v. Keegstra, [1990] 3 S.C.R. 697, on the basis that the terms of s. 319(2) created “a narrowly confined offence”, the essence of which was summarized as follows (at pp. 785-86):

To summarize the above discussion, in light of the great importance of Parliament’s objective and the discounted value of the expression at issue I find that the terms of s. 319(2) create a narrowly confined offence which suffers from neither overbreadth nor vagueness. This interpretation stems largely from my view that the provision possesses a stringent mens rea requirement, necessitating either an intent to promote hatred or knowledge of the substantial certainty of such, and is also strongly supported by the conclusion that the meaning of the word “hatred” is restricted to the most severe and deeply-felt form of opprobrium. Additionally, however, the conclusion that s. 319(2) represents a minimal impairment of the freedom of expression gains credence through the exclusion of private conversation from its scope, the need for the promotion of hatred to focus upon an identifiable group and the presence of the s. 319(3) defences. [Emphasis added.]

Although the relevant provisions of the Criminal Code have since been amended, the changes are immaterial to our discussion.

17. In short, it was necessary for the Crown in this case to prove that the respondents, by communicating statements other than in private conversation, wilfully promoted hatred against a section of the public distinguished by colour, race, religion or ethnic origin. The arguments presented at trial and on this appeal all only relate to the requirement that the hatred be against an identifiable group as so defined. The Crown in this case particularized this group as being “Roma”. The defence conceded that Roma are an identifiable group within the meaning of s. 319(2). The sole remaining question in respect of this essential element of the offence became whether Roma were the target of the respondents’ conduct.

18. As noted earlier, the informations also particularized the manner in which the offence was committed: “by communicating statements, including the written statements: ‘Honk if you hate Gypsies’, ‘Canada is not a Trash Can’, and ‘You’re a cancer to Canada’”. Particulars define the factual transaction that the prosecution must prove to support a conviction: R. v. McCune (1998), 131 C.C.C. (3d) 152 (B.C.C.A.); R. v. Groot, [1999] 3 S.C.R. 664. To make out the offence, however, there was no need to prove any “interchangeability” between the specific hateful terms employed and the name by which the target group was identified in the information. The relevant questions to be asked with respect to this element of the offence were whether the Crown had proved beyond a reasonable doubt that the respondents made some or all of the statements alleged in the information and whether the statements made, as a matter of fact, promoted hatred of the Roma.

19. It was incumbent upon the trial judge to look at the totality of the evidence and draw appropriate inferences to determine whether the respondents intended to target “any section of the public distinguished by colour, race, religion or ethnic origin”, in this case, the Roma people. Several items of evidence potentially related to this issue. The reference to “gypsies” was but one item of evidence to consider. To illustrate the point, it may be useful to consider whether the offence could be made out even if the demonstrators had made the same statements but without using the word “gypsies”. Among other things, the trial judge in his reasons for judgment referred to the following evidence as fact: (1) the motel outside of which the respondents demonstrated was temporarily housing the refugee claimants who were awaiting the outcome of their claims; (2) some of the participants were seen giving the “Sieg Heil” Nazi salute; (3) Nazi and American Confederate flags were used in the demonstration; and (4) the chant “White Power” was heard during the demonstration. Furthermore, the defence concession expressly linked Nazi persecution to the “Roma people”.

20. Hence, the ethnic flavour to the demonstration, the fact that it was situated outside a motel housing refugee claimants who were at times described by the witnesses as Roma, and the fact that Roma people are a group historically persecuted by the Nazis while the Nazi theme was apparent at the demonstration were all factors to consider, in addition to the actual words used, in determining whether Roma were the target of the hate speech. In focussing entirely on one of the specific statements particularized in the information, the trial judge misdirected himself as to the essential elements of the offence. In doing so, he erred in law.

21. In addition, I will deal briefly with judicial notice in the context in which it arose in this case.

22. A court may accept without the requirement of proof facts that are either “(1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy”: R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32, at para. 48. The dictionary meaning of words may fall within the latter category: see J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at § 9.13 and § 19.22.

23. The Crown presented the trial judge with five dictionaries demonstrating a relationship between “Roma” and “gypsy”. For example, the New Oxford Dictionary of English (1998) contained the following definitions:

gypsy (also gipsy): noun (pl. -ies) a member of a travelling people with dark skin and hair, speaking a language (Romany) related to Hindi, and traditionally living by seasonal work, itinerant trade, and fortune-telling. Gypsies are now found mostly in Europe, parts of North Africa, and North America, but are believed to have originated in the Indian subcontinent.

Rom: noun (pl. Roma/. . .) a gypsy, especially a man. – origin mid 19th cent.: abbreviation of Romany

Romany . . . noun (pl. -ies) 1 (mass noun) the language of the gypsies, which is an Indo-European language related to Hindi. It is spoken by a dispersed group of about 1 million people, and has many dialects. 2 A gypsy.

24. The dictionary definitions presented to the trial judge hence showed that “gypsy” can refer to an ethnic group properly known as “Roma”, “Rom”, or “Romany”. I see no reason why the trial judge should not have taken judicial notice of that fact and then considered it, together with the rest of the evidence, to determine whether there was proof beyond a reasonable doubt that the respondents did in fact intend to target Roma

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Disposition

25. For these reasons, I would allow the appeal, set aside the acquittals and order new trials

Appeal allowed and new trials ordered.
Solicitor for the appellant: Ministry of the Attorney General of Ontario, Toronto.
Solicitors for the respondents: David Gomes and Peter Lindsay, Toronto.
Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Ottawa.
Solicitor for the intervener the League for Human Rights of B’Nai Brith Canada: David Matas, Winnipeg.
Solicitors for the intervener the Canadian Jewish Congress: Blake, Cassels & Graydon, Toronto.

Present: Lamer C.J. and La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK

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David Attis, appellant
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The Board of School Trustees, District No. 15, respondent, and The Human Rights Commission of New Brunswick, Malcolm Ross, the Department of Education of New Brunswick, the New Brunswick Teachers’ Federation, and the Canadian Jewish Congress, respondents, and Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights Board of Inquiry, and the Minister of Labour of New Brunswick, respondents. And between The Human Rights Commission of New Brunswick, appellant

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The Board of School Trustees, District No. 15, respondent, and David Attis, respondent, and Malcolm Ross, the Department of Education of New Brunswick, the New Brunswick Teachers’ Federation, and the Canadian Jewish Congress, respondents, and Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights Board of Inquiry, and the Minister of Labour of New Brunswick, respondents. And between The Canadian Jewish Congress, appellant

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The Board of School Trustees, District No. 15, respondent, and Malcolm Ross, respondent, and David Attis, respondent, and The Human Rights Commission of New Brunswick, the Department of Education of New Brunswick, and the New Brunswick Teachers’ Federation, respondents, and Brian Bruce, Brian Bruce Consultants Ltd., the Human Rights Board of Inquiry, and the Minister of Labour of New Brunswick, respondents, and The Attorney General of British Columbia, the League for Human Rights of B’Nai Brith Canada, the Canadian Civil Liberties Association, and the Canadian Association of Statutory Human Rights Agencies, interveners.

[1996] 1 S.C.R. 825 [1996] S.C.J. No. 40 File No.: 24002.

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Civil rights — Discrimination — Services to the public — Teacher publicly making discriminatory statements in his off-duty time — Whether school board which employs teacher discriminating with respect to services it offers to public — Human Rights Act, R.S.N.B. 1973, c. H-11, s. 5(1).

Judicial review — Standard of review — Human rights tribunal — Issues raised involving constitutional and administrative law components — Different standards of review applicable — Relationship between administrative law standard of review and constitutional standard of review under Canadian Charter of Rights and Freedoms.

Administrative law — Human rights tribunal — Jurisdiction — Teacher publicly making discriminatory statements in his off-duty time — Human rights board of inquiry making finding of discrimination against school board which employs teacher — School board ordered to remove teacher from his teaching position, and to terminate his employment immediately if he wrote anti-Semitic materials or sold his previous publications — Whether Board’s finding of discrimination and order beyond its jurisdiction — Human Rights Act, R.S.N.B. 1973, c. H-11, ss. 20(1), (6.2), 21(1).

Constitutional law — Charter of Rights — Freedom of expression — Teacher publicly making discriminatory statements in his off-duty time — Human rights board of inquiry ordering school board to remove teacher from his teaching position, and to terminate his employment immediately if he wrote anti-Semitic materials or sold his previous publications — Whether order infringes on teacher’s freedom of expression — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1, 2(b).

Constitutional law — Charter of Rights — Freedom of religion — Teacher publicly making discriminatory statements in his off-duty time — Human rights board of inquiry ordering school board to remove teacher from his teaching position, and to terminate his employment immediately if he wrote anti-Semitic materials or sold his previous publications — Whether order infringes on teacher’s freedom of religion — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1, 2(a).

For several years, R, a teacher, publicly made racist and discriminatory comments against Jews during his off-duty time. R’s writings and statements communicating his anti-Semitic views include four books or pamphlets, letters to a local newspaper, and a local television interview. A Jewish parent filed a complaint with the New Brunswick Human Rights Commission, alleging that the School Board, which employed R as a teacher, violated s. 5(1) of the Human Rights Act by discriminating against him and his children in the provision of accommodation, services or facilities on the basis of religion and ancestry. The Board of Inquiry (the “Board”) found that R’s off-duty comments denigrated the faith and belief of Jews. The Board further found that the School Board was in breach of s. 5(1), concluding that it discriminated by failing to discipline R meaningfully in that, by its almost indifferent response to the complaints and by continuing his employment, it endorsed his out-of-school activities and writings. The Board directed the School Board to comply with the following, in clause 2: (a) place R on a leave of absence without pay for a period of 18 months; (b) appoint him to a non-teaching position, if one became available during that period; (c) terminate his employment at the end of that period if, in the interim, he had not been offered and accepted a non-teaching position; and (d) terminate his employment with the School Board immediately if he published or wrote anti-Semitic materials or sold his previous publications any time during the leave of absence period or at any time during his employment in a non-teaching position. The Court of Queen’s Bench allowed R’s application for judicial review in part, ordering that clause 2(d) of the order be quashed on the ground that it was in excess of jurisdiction. The court also concluded that paragraph 2 of the order violated ss. 2(a) and 2(b) of the Canadian Charter of Rights and Freedoms but that, with the exception of clause 2(d), it could be saved by s. 1 of the Charter. The Court of Appeal dismissed the cross-appeals with respect to clause 2(d) and allowed R’s appeal, holding that clauses 2(a), (b) and (c) of the order infringed R’s freedom of expression and freedom of religion and could not be justified under s. 1.

Held: The appeal should be allowed and clauses 2(a), (b) and (c) of the order restored.

(1) Standards of Review

This appeal raises two general issues in relation to the standard of judicial review. The first relates to the administrative law issue of the standard of deference to be applied to the Board’s finding of discrimination and its remedial order. The second relates to the standard of constitutional review to be applied to the Board’s order. With respect to the administrative law issue, the superior expertise of a human rights tribunal is confined to fact-finding and adjudication in a human rights context, and the standard of review on the basis of reasonableness is applicable to these matters. For general questions of law, a standard of correctness is appropriate. In the process of performing its adjudicative function, a human rights tribunal applies general legal reasoning and statutory interpretation, matters which are ultimately within the province of the judiciary. Human rights tribunals, however, have relative fact-finding expertise and should be accorded deference by the courts in this function. This may be reinforced in this case by s. 21(1) of the Act which may import some privative effect. This fact-finding expertise of human rights tribunals should not be restrictively interpreted, and it must be assessed against the backdrop of the particular decision the tribunal is called upon to make. Here, the Court must decide whether the Board’s finding of discrimination was beyond its jurisdiction. The Board’s authority to determine the issue of discrimination is found in s. 20(1) of the Act. Since a finding of discrimination is impregnated with facts, and given the complexity of the evidentiary inferences made on the basis of these facts before the Board, it is appropriate to exercise a relative degree of deference to the finding of discrimination, in light of the Board’s superior expertise in fact-finding — a conclusion supported by the existence of words importing a limited privative effect into the constituent legislation. As for the order, the Board’s discretionary power set forth in s. 20(6.2) of the Act is in such broad terms that the order cannot be said to fall outside its jurisdiction. Here too the tribunal is entitled to the same deference in fact finding.

This case also involves a constitutional challenge to the Board’s order. An administrative tribunal acting pursuant to its delegated powers exceeds its jurisdiction if it makes an order that infringes the Charter. The Charter standard and the administrative law standard, however, must not be conflated into one. Where the issues involved are untouched by the Charter, the appropriate administrative law standard is properly applied as the standard of review; but when, as in this case, the values invoked are Charter values, it is necessary to subject the decision to a s. 1 analysis. In such a case, there is no need for an administrative law review of the values that have been dealt with pursuant to Charter examination under s. 1. If the decision is found to be constitutional, it is difficult to see how it could be patently unreasonable. A review of these same values on an administrative law standard should not impose a more onerous standard upon government than under the Charter review. Conversely, if the decision is unconstitutional, then its acceptability according to an administrative law standard is no longer relevant, as the decision is invalid and in excess of the Board’s jurisdiction.

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(2) Discrimination

The Board was correct in finding that R’s continued employment as a teacher constituted discrimination under s. 5(1) of the Act, with respect to educational services available to the public. On the basis of the factual evidence disclosing the substance of R’s writings and statements, and the notoriety of his anti-Semitic comments in the community and beyond, the Board properly concluded that R’s off-duty comments undermined his ability to fulfil his teaching position. The evidence establishes a “poisoned” educational environment characterized by a lack of equality and tolerance. Although there is no direct evidence establishing an impact upon the school district caused by R’s off-duty conduct, a reasonable inference is sufficient in this case to support a finding that R’s continued employment impaired the educational environment generally in creating the “poisoned” environment. R’s off-duty conduct impacted upon the educational environment in which he taught. Public school teachers assume a position of influence and trust over their students and must be seen to be impartial and tolerant. By their conduct, teachers, as “medium” of the educational message (the values, beliefs and knowledge sought to be transmitted by the school system), must be perceived as upholding that message. A teacher’s conduct is evaluated on the basis of his or her position, rather than whether the conduct occurs within or outside the classroom. A school board has a duty to maintain a positive school environment for all persons served by it and it must be ever vigilant of anything that might interfere with this duty. It is not sufficient for a school board to take a passive role. Here, the Board found that the School Board failed to maintain a positive environment and concluded that the School Board had discriminated in its failure to take a proactive approach to the controversy surrounding R, thus suggesting the acceptance of R’s views and of a discriminatory learning environment. There is no error in the Board’s finding of discrimination against the School Board.

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(3) Sections 2(a) and 2(b) of the Charter

The Board’s order infringes R’s freedom of expression. R’s writings and statements clearly convey meaning and are protected by s. 2(b) of the Charter. The truth or popularity of their contents is not relevant to this determination. The order is intended to remedy the discrimination with respect to services available to the public, by preventing R from publicly espousing his views while he is employed as a public school teacher. On its face, its purpose and effect are to restrict R’s expression. The order therefore violates s. 2(b) of the Charter. The order also infringes R’s freedom of religion. This freedom ensures that every individual must be free to hold and to manifest without state interference those beliefs and opinions dictated by one’s conscience. Assuming the sincerity of the beliefs and opinions, it is not open to the courts to question their validity. Both ss. 2(a) and 2(b) must be given a broad interpretation, generally leaving competing rights to be reconciled under the s. 1 analysis. In certain cases this can be done in a relatively peremptory manner, but in this case, where R’s claim is to a serious infringement of his rights in circumstances requiring a detailed contextual analysis, the detailed s. 1 analytical approach provides a more practical and comprehensive mechanism to assess competing interests.

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(4) Section 1 of the Charter

The Oakes test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs. In undertaking this task, courts must take into account both the nature of the infringed right and the specific values the state relies on to justify the infringement. This involves a close attention to context. Here, the educational context must be considered when balancing R’s freedom to make discriminatory statements against the right of the children in the School Board to be educated in a school system that is free from bias, prejudice and intolerance; relevant to this particular context is the vulnerability of young children to messages conveyed by their teachers. The employment context is also relevant to the extent that the state, as employer, has a duty to ensure that the fulfilment of public functions is undertaken in a manner that does not undermine public trust and confidence. Teachers are also employees of a school board and a teacher’s freedoms must be balanced against the school board’s right to operate according to its own mandate. The anti-Semitism context is relevant as well because the Board’s order was made to remedy the discrimination within the public school system that targeted Jews. In its order, the Board balanced R’s freedoms against the ability of the School Board to provide a discrimination-free environment and against the interests of Jewish students; it may therefore be entitled to greater deference. An attenuated level of s. 1 justification is appropriate in this case in light of the nature of the rights allegedly infringed by the order. The expression sought to be protected is at best tenuously connected to the core values of freedom of expression. R’s religious belief, which denigrates and defames the religious beliefs of others, erodes the very basis of the guarantee in s. 2(a) of the Charter. R’s religious views serve to deny Jews respect for dignity and equality.

The Board’s order aims at remedying the discrimination found to have poisoned the educational environment in the School Board. This objective is clearly of sufficient importance to warrant overriding a constitutional freedom. There is also a rational connection between the order and its objective. While the evidence did not establish a direct link between the poisoned educational environment and R’s anti-Semitic views, it is sufficient that the Board found it “reasonable to anticipate” that there was a causal relationship between R’s conduct and the harm. It is possible to “reasonably anticipate” the causal relationship in this case because of the significant influence teachers exert on their students and the stature associated with the role of a teacher. R’s removal from his teaching position was thus necessary to ensure that no influence of this kind is exerted by him upon his students and to ensure that the educational services are discrimination-free. Accordingly, clauses 2(a), (b) and (c) of the order, which deal with R’s removal from his teaching position, are rationally connected to the order’s objective. They were also carefully tailored to accomplish this objective and minimally impair R’s constitutional freedoms. The deleterious effects of these clauses upon R’s freedoms are limited to the extent necessary to the attainment of their purpose. R is free to exercise his fundamental freedoms in a manner unrestricted by this order, upon leaving his teaching position, and he is not prevented from holding a position within the School Board if a non-teaching position becomes available. The objectives of preventing and remedying the discrimination in the provision of educational services to the public outweigh any negative effects on R produced by these clauses. Clauses 2(a), (b) and (c) of the order are justified under s. 1 and were properly made within the Board’s jurisdiction.

Clause 2(d), however, fails the minimal impairment branch of the s. 1 analysis. It may be that R’s continued presence in the School Board would produce a residual effect even after he was removed from a teaching position, which may be what the clause sought to address. However, the evidence does not support the conclusion that the residual poisoned effect would remain indefinitely. For that reason, clause 2(d), which imposes a permanent ban, does not meet the minimal impairment test. Clause 2(d) should be severed from the remainder of the order on the basis that it does not constitute a justifiable infringement of the Charter and is therefore in excess of the Board’s jurisdiction.