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Remedy & Order


[295] It was suggested during the course of the hearing that a cease and desist order issued against the Respondent would have virtually no effect in eliminating this material from the World Wide Web. As we have noted throughout this decision, Mr. Zündel did not participate in final argument on the merits of this complaint and so the Tribunal, in endeavouring to afford a fair hearing in the circumstances, raised this point during the Commission's submission.

[296] One of the unique features of the Internet is the ease with which strangers to the creator of a particular site can access material and, if they choose, replicate the entire site at another web address. The evidence before us supports the contention that "mirror" sites already exist that duplicate in their totality the material currently found on the Zundelsite. We also accept that some individuals, in an attempt to rebuff efforts to limit speech or regulate the Internet, might be prompted to create mirror sites in direct response to an Order issued by this Tribunal. As there is no evidence that these sites are under the control of Mr. Zündel, it was submitted that even if we find that there has been a contravention of s. 13(1) of the Act, it would be totally ineffectual to issue a cease and desist order. Notwithstanding any Order that we might issue, the material found on the Zundelsite, which we have determined offends s. 13(1) of the Act, will remain accessible to anyone in Canada who can find a mirror site.

[297] Counsel for the Commission and the interveners in aid of the Commission position maintained that the proposed remedy would serve both a symbolic and practical value. At a minimum, a cease and desist order would prevent the Respondent from continuing to update and promote this site.

[298] We are extremely conscious of the limits of the remedial power available in this case. There always exists the possibility that an individual, wholly unrelated to a named respondent, will engage in a similar discriminatory practise. The technology involved in the posting of materials to the Internet, however, magnifies this problem and arguably makes it much easier to avoid the ultimate goal of eliminating the material from telephonic communication.

[299] Nonetheless, as a Tribunal we are charged with the responsibility of determining the complaints referred to us, and then making an Order if we find that the Respondent has engaged in a discriminatory practise. We cannot be unduly influenced in this case by what others might do once we issue our Order. The Commission, or individual complainants, can elect to file other complaints, or respond in any other manner that they consider appropriate should they believe that there has been a further contravention of the Act.

[300] Any remedy awarded by this, or any Tribunal, will inevitably serve a number of purposes: prevention and elimination of discriminatory practises is only one of the outcomes flowing from an Order issued as a consequence of these proceedings. There is also a significant symbolic value in the public denunciation of the actions that are the subject of this complaint. Similarly, there is the potential educative and ultimately larger preventative benefit that can be achieved by open discussion of the principles enunciated in this or any Tribunal decision.

[301] Parliament, on behalf of all Canadians, has determined that the telephonic communication of hate messages is not to be tolerated in our society. In our view, the victims of hate are entitled to obtain the benefit of the full weight of our authority.

[302] We have determined that the Respondent Ernst Zündel has engaged in a discriminatory practise by posting material to his website that is likely to expose Jews to hatred or contempt, and the granting of the remedy requested is warranted and appropriate.


[303] We therefore order that the Respondent, Ernst Zündel, and any other individuals who act in the name of, or in concert with Ernst Zündel cease the discriminatory practise of communicating telephonically or causing to be communicated telephonically by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, matters of the type contained in Exhibit HR-2 and found on the Zundelsite, or any other messages of a substantially similar form or content that are likely to expose a person or persons to hatred or contempt by reason of the fact that that person or persons are identifiable on the basis of a prohibited ground of discrimination, contrary to s. 13(1) of the Canadian Human Rights Act.

(Original signed by)


Claude Pensa, Chairperson

(Original signed by)


Reva Devins, Member

OTTAWA, Ontario

January 18, 2002

[ Reasons for Decision ]

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