Introduction and Overview of the Malcolm Ross Case

Thomas Kuttner
Faculty of Law, UNB

Good afternoon. My involvement with the Moncton School Board case, a case dealing with a Moncton school teacher named Malcolm Ross, really came to an intersection of three areas of law that I had been involved in: constitutional law, labour law and human rights law. As I started to work with counsel, Joanne McLeod, she asked me if I would mind making some of the arguments in front of the court. I sort of bit my lip so that I wouldn't smile to broadly and said that I might be interested in doing that. This was really my baptism in the courts of New Brunswick, because I hadn't practiced law since coming here in 1979.

There were quite a few parties to this case, quite a few people intervened at the Supreme Court of Canada. I did bring along my opening statement which indicates the position that the NB Human Rights Commission took on the issues.

In this case the New Brunswick Court of Appeal has determined that a human rights Board of Inquiry is powerless to restrain the off-duty discriminatory conduct of an out spoken and anti-semitic school teacher. That conduct had been conclusively determined by the Board of Inquiry to have been discriminatory and in violation of the human rights code. A determination set by Justice Ryan in the Court of Appeal in dissent, to have been unassailable. Conduct which the pernicious effect of poisoning the environment within the school district and interfering with his ability to provide educational services in an atmosphere of tolerance, goodwill and equal respect, which are so essential to the formation of the young; values which are the touch stone of a civil society. It was said in the Court of Appeal that the value of freedom of speech and freedom of religion - both of which the school teacher relied upon to construct his dismal world of hatred, bigotry and intolerance - that these fundamental Charter values demand that Board of Inquiry stand aside and let the poison of anti-semitism seep into the Moncton school system and their work has frightening consequences on our children. Before this court, as before the courts below, the Human Rights Commission submits that neither freedom of speech nor freedom of religion demands such submission on the part of the citizenry whose values are rooted in belief of God and the rule of law - belief in God and the rule of law are two values that are identified in the preamble of the Charter to be the basis upon which the Charter is built. We submit that where as here the school board has been implicated in off-duty discriminatory conduct by the conduct of one of its teachers, the remedial reach of a Human Rights Board of Inquiry is broad enough to embrace the redeployment and restraint order here issued against the school teacher and that such an order is a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.

Now some of you have been here this morning, and there are others that have not, in any event the Supreme Court ultimately upheld the redeployment order but not the order of restraint, which was the order prohibiting Mr. Ross from continuing with his anti-semitic propaganda while an employee of the school board.

I will now sort of turn to the outline or the back ground to this case and to this issue. Starting with the general background, I think one has to stand back and look at where this case is situated. I think it is pretty fair to say that one of the consequences of the Second World War was the realization, as a result of the atrocities that were perpetrated in both the European and Asian fronts against innocent populations, that the world should really try to come to grips with racism. This was articulated in the Universal Declaration of Human Rights, the founding of the United Nations and there are a variety of international conventions as well which touched on the phenomenon of racism, and in a sense criminalization of racial discrimination, but certainly a resolve to control and contain it. At the same time all through out Europe, and America and other parts of the world, you had a move towards an introduction of human rights code which would address among other things the issue of discrimination on racial grounds.

Moving into Canada, the background here, there were human rights codes coming into effect in the 60s and 70s. One of the issues that many people were concerned about was hate propaganda, generally directed at racial or ethnic minorities. A special committee to investigate the issue was established by the federal government, headed by Maxwell Cohen, who was then the Dean of Law at McGill University. The report which was called A Study in the Power of Words to Maim identified a variety of risks. The risks of civil disorder in that hatred can lead to violence, damage to reputation focusing on the individuals and groups affected, the psychological stress - the impact on victims of racism, and the general breakdown of values of tolerance and respect. The challenge that the Cohen Report identified was how to protect the integrity of the community in the face of this sort of conduct. "Every society draws a line at the point where the intolerable and the impermissible coincide" (Cohen Report). The Cohen committee looked at a variety of techniques to control what we have come to call group defamation. There is a common law background here that does have some relevance. Essentially on the civil side the torte on defamation, conduct is actionable where an individual is defamed. On the criminal side there was a long tradition of trying to ensure the integrity of the state against seditious sorts of conduct, but it is hard to argue that propaganda would be seditious. But there was a provision that goes back to the 13th century that we find in our criminal code under the provision of spreading false news. This was a rarely used provision of the Criminal Code as most were unfamiliar with its importance and intent was.

The solutions that the Cohen Report came forward with was to criminalize hate propaganda, and our criminal code that was amended in the 60s provided for the criminalization of three types of conduct: s. 318 (1) advocating genocide, s. 319(1) public incitement to hatred likely to lead to breach of peace, and s. 319(2) wilful promotion of hatred against an identifiable group. Now the sanctions are as always with criminal conduct fines and imprisonment. But there are two elements two these particular crimes which are quite unique. One is the defense that was framed by the Cohen committee that there should be a defense of truth or an attempt to attain the truth so that one could argue that that was the purpose of the conduct. Or secondly, religious belief - that it was an expression of one's religious belief. A second element that was quite unusual was in order to commence a prosecution the Attorney General of the province would have to give consent. Ordinarily prosecutions are done through the laying of charges. The idea was to prevent abuse of these provisions by individuals intent on frightening others into silence because of conduct which they were unhappy with, but which really could not fall under the rubric of hatred.

Now on the civil side the modern solutions really are found in the human rights codes, and these all prohibit discrimination in employment, housing, in services to the public, and in the federal code in telecommunications as well. The sanctions though are different as they are outside of the realm of criminal law, and essentially are attempting to control conduct in a regulatory fashion. So you have orders that prohibit a certain type of conduct or proactive orders ordering compliance with some sort of conduct, and that is the manner in which the human rights tribunal fashions remedies. And there really are no defense to discriminatory conduct, in the sense that there are in the criminal code. The problem is how do we integrate this public policy with the Charter values, and in this case they are freedom of speech and freedom of belief versus the integrity of the community.

One can fashion several tests to do this: one is to limit the scope of the Charter freedoms and this is really what was attempted to deal with hate propaganda and pornography. On the hate propaganda side this argument was accepted in the case of Keegstra in Alberta, a school teacher who was teaching an anti-semitic version of history in the classroom. And similarly the Ontario Court of Appeal in the case of Zundel, who is probably the largest and most active and widespread propagandist of anti semitism in the world. In those courts the arguments were made based on some American law that really freedom of speech does not include certain types of speech, and in particular speech that denigrates. The courts should give a broad interpretation to the freedoms and then restrict them under section 1 of the Charter. This section states that "the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Our court has argued that one starts with giving a broad reach to the freedom and then balances it against other values.

So lets look at the cases. Keegstra was the first case in which the hate propaganda provisions were used in the Charter era. Keegstra was an Alberta school teacher who had perverse views about the Jewish people, namely that there was some massive conspiracy to dominate the world and that they were the cause of all our woes - classic anti-semitism. He was charged under the provision of the code prohibiting willful promotion of hatred, and he was originally convicted. This was that Alberta court that said that this really is not protected by the Charter freedom of speech at all. The Alberta Court of Appeal acquitted him on a variety of grounds, and at the same time took the position that this provision of the code was an infringement on freedom of speech and moreover couldn't be justified under section 1, so they struck it down. When the case finally got to the Supreme Court the court divided over the question of whether or not it could be justified - 4 justices upheld s.319(2) as a reasonable limit in a free and democratic society. Ultimately Keegstra was retried and very recently he was given a suspended sentence; he had been dismissed by his school board initially because of his conduct.

The next major case dealing with ant-semitism and hate propaganda was Zundel. Zundel is this propagandist in Toronto who had created quite a furore in the Jewish community and there were various attempts made to have him prosecuted, but the Attorney General of Ontario refused on several occasions to commence a prosecution, for as you recall you have to have the AG's consent. Their assessment of the situation was that it was not warranted and most probably on the basis of difficulty of obtaining a conviction. A private prosecution was commenced by a holocaust survivor. She took some legal advise and found this provision of the Criminal Code, spreading false news (s.181), which goes back to an earlier era, and by the way a crime which was abolished in England and the United States at the turn of the century. This prosecution went through, and the Ontario Court of Appeal took the argument that this sort of hate propaganda was not included in freedom of speech, they took the restricted view of freedom of speech. However, at the Supreme Court the provisions of s.181 were struck down. Now you see the dilemma here because we had the same division in the court 4/3. Justice Mclaughlin who had written the dissent in the Keegstra case wrote the majority of reasons in the Zundel case, and distinguished this particular provision being too much of an infringement on freedom of speech, and much too open ended compared to the hate propaganda provision.

Now this brings us to the failings of the Cohen Model, namely since the common law is normally used as a buttress against state and the specific problems with the truth defence and the religious belief defense made it very hard to address the phenomena of anti-semitism. So the idea was gaining currency that one should look to the human rights model, for a variety of reasons: promoting values of equal dignity and respect, accommodative not adversarial, focus on victim not perpetrator, ameliorative not punitive and the possibility of a so called make whole order - that is a there is a great variety of remedial avenues open.

That brings us now to the Moncton School Board Case. A Moncton resident by the name of David Attis filed a complaint with the Human Rights Commission. His complaint was against the School Board for its inaction in failing to provide educational services free from discrimination which it was obliged to do under the Human Rights Code. And it was because of the action of this teacher, Malcolm Ross, and the inaction of the School Board in essentially reigning him in. The evidence showed that this problem had been an ongoing one for at least a decade in Moncton, and attempts had been made of one sort or another within the School Board to control his conduct. But as so often with bodies of this sort where membership changes, there was never an action taken which was sustained.

A Board of Inquiry was ultimately established and it made a finding that the continued employment of anti-semitic teacher contributed to an invidiously discriminatory educational environment in Moncton, and that therefore a solution had to be found. There was a two part solution: redeploying him from the classroom and restraining him from continuing with this activity. The way the order was worded was the Board was to suspend him for a period of time during which if they could find him a non-teaching position then they could take him on as long as he did not engage in anti-semitic activities. The Commission of Inquiry itself summarized his views by putting an excerpt from the Miramichi Leader, from an article Malcolm Ross had written. He says:

These questions troubled me. Several years after leaving university I began to hear about an international conspiracy most disturbing of all this conspiracy seemed to be headed by those many Christians held to be God's chosen people -Jews. My work is not disguised as Christian but is completely faithful to the spirit of the Christian faith from the earliest Christian times to at least our post Auschwitz Christian Church where the Jewish infiltration of top offices in the Vatican and elsewhere led to the sorry state of the Christian Church and Christian society today. It is indeed the Judeo-Christian society our society has fought against for years, a society under the control of Jewish control of mass media, Jewish control of international finance and now Jewish dominated Christianity where every evangelist that appears on our television spews out the same old line.

This goes on in the same vain, in fact in an argument for the Supreme Court quite a bit of this was articulated.

What happened to the Board order? It came before the New Brunswick Court of Queen's Bench and the order was upheld on redeployment but not on the restraint portion. Here there was an argument that the Board had gone beyond its jurisdiction. The New Brunswick Court of Appeal subsequently quashed the entire order and said that it couldn't meet the section 1 test because really the entire matter did not raise a matter of sufficient and urgent concern for an infringement of freedom of speech.

At the Supreme Court of Canada we had a full bench of nine judges and a unanimous judgement written by Justice LaForest. In this judgement the court resuscitated the order of the Court of Queen's Bench so that the deployment order taking Ross out of the classroom was upheld as a reasonable limit on freedom of speech and freedom of religion. But the restraining order remained quashed, largely because the Court was of the view that there wasn't sufficient evidential basis to show that a person who was not actually teaching children would continue, by his anti-semitic activity, to effect a poisoned environment in the classroom. In my view the judgement leaves open the possibility that the argument could be made, it is just that there was not evidence at the time that such would be the outcome. Its all rather academic now because Ross's position was, if I am not mistaken, eliminated in the recent cutbacks that have effected the school system generally.

Moving on to the way that the court addressed this, we have section 1 analysis, and essentially the Court accepted the argument or the structure of the argument that the Commission had put forward in their brief. There are essentially three contexts. There was the educational context that you had look when trying to balance a Charter value against other values in a free and democratic society. The fact that government must inculcate civic virtue in its youth, and that means the informing values in our society including those of tolerance and respect. On the other side children have a right to a school that is free from bias and intolerance. Then on the employment side, teaching is not a right but in essence a trust in that the teacher plays a particular role in our society and has a particular influence in our society unlike any other profession. It is the duty of the government that there remains public trust and confidence in the educational system and this is undermined by a teacher who articulates values which are in direct contradiction to the informing values of the society and the school system. And thirdly, the context of anti-semitism and here the court recognized, really for the first time that publicly the Jews are historically a disadvantaged group that have endured persecution and that this is a factor that had to be taken into account and in particular the reality of the holocaust in this century.

Now in one area where the court was a little bit more careful was in the whole argument of Christian belief. Although the court did accept the view of defamation and denigration of others erodes the various basis of freedom of belief, they were very reluctant to address Ross on his own territory so to speak, his argument was always that this was Christian belief. Assessing then his freedom of speech and freedom of religion, they recognized that they were values that Ross was articulating, the court looked at the core values of freedom of speech and freedom of belief, and these are concepts that we find in much of its jurisprudence. So then when looking at section 1, the court noted that the degree or test is one of searching scrutiny, but that this is in inverse proportion to the distance of the particular conduct from the core values, and in this case the conduct is sort of vicious anti-semitism, so your very far removed form the core values of either freedom, and therefore the scrutiny is attenuated. Ultimately the court analyzed in using this analysis upheld the redeployment order on the basis of those competing values.

I will just finish off by making brief reference to the significance of this decision. First of, that this was a unanimous case on freedom of speech, the only one so far in which the court has been unanimous on a freedom of speech issue. The actual recognition of anti-semitism "as undermining the principle that all views deserve equal protection, that anti-semitism muzzles the voice of truth". Of course this is a major case, and this morning's focus was on education, how central education is to our civic life. And in so far as human rights commissions are concerned, the court reaffirmed that a human rights commission is an appropriate vehicle to address group hatred, that there should be deference paid to the expertise of human rights tribunals in fact finding, and finally that the remedial jurisdiction of these tribunals is extremely broad. I will leave it to my colleagues here to address various aspects of this case. Thank you very much.

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© 2007 Atlantic Human Rights Centre, St. Thomas University