Human Rights Tribunal
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CANADIAN HUMAN RIGHTS COMMISSION
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ATTORNEY GENERAL OF
CANADIAN ASSOCIATION FOR FREE EXPRESSION
CANADIAN FREE SPEECH LEAGUE
CANADIAN JEWISH CONGRESS
FOR HOLOCAUST STUDIES
LEAGUE FOR HUMAN RIGHTS OF B’NAI BRITH
MEMBER: Athanasios D. Hadjis
2007 CHRT 37
The Respondent, Marc
Lemire, has made a motion for the adjournment sine die of
the present proceedings, pending the determination by the Federal
Court of several claims of public interest immunity made by the
Canadian Human Rights Commission, pursuant to s.
37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (CEA).
On May 9 and 10, 2007, Mr. Lemire’s legal counsel,
, called two Commission
employees to testify at the hearing into the complaint. Ms.
Kulaszka had indicated that these individuals and one other witness,
who has since testified, would be her last witnesses. Her case would
then have been closed. The other parties had stated that they did
not intend to adduce any additional evidence. The Tribunal had
therefore already set dates for final argument.
During Ms. Kulaszka’s questioning of the abovementioned Commission
Commission objected numerous times to the disclosure of the
information being sought, on the grounds of a specified public
interest, pursuant to s. 37(1) of the CEA. In addition,
subsequent to these hearing dates, the Commission invoked s. 37 in
its objection to Mr. Lemire’s request for the issuance of a
subpoena (see my ruling in this regard, Warman v. Lemire,
2007 CHRT 21).
On May 17, 2007, Mr. Lemire filed a Notice of Application to the
Federal Court, Court File no. T-860-07, for a determination of the
Commission’s claims of public interest immunity, in accordance
with s. 37(3) of the CEA.
In making the present adjournment request, Mr. Lemire submits that
it is the “normal and expected procedure” where a s. 37
objection has been made before a court, person or body other than a
superior court, for that instance to adjourn its proceedings while
the determination of the matter is before the superior court. As the
British Columbia Court of Appeal pointed out in Re Attorney
et al. and Sander, 1994 CanLII 1658 at para. 84:
Thus, when an objection to disclosure under s. 37 is made
at trial by the Crown in a court other than a superior court, the
trial proceedings should be adjourned so the objection may be
determined in a superior court.
The Court reiterated this point in R. v. Sander, 1995 CanLII
1229 at para. 29 (B.C.C.A.): Where the trial is in
, an application under s. 37 operates to interrupt the trial, to
remove to another court the determination of an issue ordinarily
determined by the trial judge.
Mr. Lemire points out that determinations by the superior court,
made pursuant to s. 37 of the CEA, constitute separate and
independent inquiries, not interlocutory appeals or reviews of the
lower tribunal’s ruling. He adds that the Tribunal in the present
case did not make any ruling with respect to the Commission’s s.
37 CEA claim other than to state that once the immunity is
invoked, the matter was out of its hands. The question could only be
further addressed by the Federal Court, on application.
It is well established that administrative tribunals are masters of
their own proceedings and, as such, they possess significant
discretion in ruling upon requests for adjournments. Tribunals such
as the Canadian Human Rights Tribunal, which exercise judicial or
quasi-judicial functions, must use their discretion in keeping with
the principles of natural justice (Baltruweit v. Canadian
Security Intelligence Service, 2004 CHRT 14 at paras. 15-17).
I share the view expressed in Baltruweit and Leger v.
Canadian National Railways Company, Ruling No. 1, CHRT File
T527/2299, (Nov. 26, 1999), that the Tribunal should not apply the
three-stage test set out in RJR-Macdonald Inc. v. Canada 
1 S.C.R. 311, when dealing with adjournment requests. The
RJR-Macdonald test is suited to situations where a supervisory court
is asked to stay the proceedings of a lower court or tribunal,
pending an appeal or judicial review application. That is not the
case with regard to the present motion.
The Commission and the Attorney General of Canada oppose the
adjournment request. They point out that the information being
withheld by the Commission relates to investigative and other
actions that the Commission has taken pursuant to the Canadian
Human Rights Act (CHRA). They contend that given the
limitations of the Tribunal’s jurisdiction to adjudicate
constitutional matters, and the absence of any jurisdiction to
inquire into the manner in which the Commission investigates
complaints or discharges its mandate under the CHRA, the
information being withheld by the Commission is not relevant to the
issues of this case and is not required in order to adjudicate the
complaint. The Commission also argues that this information
constitutes a “small amount of evidence in issue”. On this
latter point, I fail to see how the size or magnitude of the
evidence should have any bearing on the question.
This is not the first time that the Commission and the Attorney
General have raised the scope of the evidence as an issue. Similar
objections were made at the early stages of the hearing and, after
some debate, I ruled that evidence regarding the Commission’s
activities relating to s. 13 of the CHRA, is admissible for
the purposes of challenging the constitutionality of this provision.
The question of whether any of this evidence should be considered by
the Tribunal in ultimately determining the constitutional issues of
this case was deferred to final argument. All the parties have
proceeded through this hearing based on this understanding. It
should be noted, nonetheless, that the Commission and the Attorney
General have, from time to time, reaffirmed their positions that
this evidence is ultimately of no relevance. On these occasions, I
have reiterated that debate on this question is reserved for final
The Tribunal has a duty to conduct its proceedings as informally and
expeditiously as the requirements of natural justice and rules of
procedure allow (s. 48.9(1) CHRA). In my view, it would be
unfair to Mr. Lemire and a denial of natural justice to require him
to close his case when there is a possibility that the s. 37
application may be determined in his favour, thereby making
potentially relevant evidence available to him. This is evidence
that Mr. Lemire sought to introduce in a timely manner. Section 50
of the CHRA grants him a “full and ample opportunity” to
present evidence at the inquiry. If it turns out that the s. 37
public interest immunity applies, the evidence at issue is
inadmissible. But closing the Tribunal inquiry before the Federal
Court has given its answer pre-judges the question of relevance and
admissibility, and renders useless any relief that Mr. Lemire may
obtain from that Court.
Any delay in the completion of this case is regrettable. I am
convinced that all parties look forward with some earnest to a
pronouncement on all of the issues before the Tribunal. Mr. Lemire
points out that had the Commission invoked public interest immunity
under the common law, instead of making an objection under s. 37 of
the CEA, the Tribunal could have addressed the disclosure
questions directly. Any challenges to the Tribunal’s findings
would have been dealt with through judicial review. David M.
Paciocco makes this point in The Law of Evidence, Third Edition,
: Irwin Law Inc., 2002) at 222, where he notes:
Prior to the amendments [brought about by the Anti-Terrorism
Act, 2001, S.C., c.41, s.43], courts found that section 37 had
not displaced the common law. The amendments have not changed this.
What this means is that it is still open to the Crown to object to
disclosure under the common law. An objection under the common law
will not trigger the section 37 process. Most importantly, although
the section does not provide for provincial courts to hear “an
objection made under section 37,” this does not preclude the
provincial courts, either in the course of a preliminary inquiry or
a trial, from hearing a claim for immunity under the common law. In
fact, such a procedure is to be encouraged. This will save the
inconvenience of adjourning the matter to be heard in the superior
court of the province, as is required by the section.
The examples given by the author in this excerpt arise in the
context of the criminal law. All of the jurisprudence relied upon by
Mr. Lemire in his motion, in fact, relates to criminal trials. The
Attorney General argued that these authorities are therefore
distinguishable on this ground alone. However, neither the Attorney
General nor the Commission produced any decisions (civil or criminal
in nature) to counter the findings in those cases with regard to the
practice of adjourning proceedings pending s. 37 determinations.
Furthermore, I fail to see why deciding whether to adjourn a
proceeding pending a determination by a superior court should depend
on whether the trial at first instance is criminal or civil in
nature. Section 37 makes no such distinction.
I am therefore granting the adjournment sine die being sought
by Mr. Lemire. Had any of the parties indicated that they had any
other evidence to adduce, aside from that which relates to the s. 37
objection, I would have continued the hearing pending the outcome of
the Federal Court application, but that is not the case.
The parties should take note that if the delay engendered by the s.
37 application becomes prolonged, the public interest in an
expeditious inquiry may require that the Tribunal re-visit its
decision to defer making a definitive finding on the relevance of
the evidence sought. Case management conference calls will therefore
be conducted by the Tribunal on a regular basis to follow up on the
progress of the s. 37 application before the Federal Court. The
Tribunal expects the parties to cooperate and act with due diligence
towards the hearing of the application.
Athanasios D. Hadjis