Friday, March 13, 2009

Jason Ouwendyk Decision

The decision has come down:

Warman v. Northern Alliance and Jason Ouwendyk

Certainly not perfect, though given the Guille ruling not entirely surprising. Still, this much is clearly spelled out in the decision:

  • Messages posted on the Northen Alliance website and by Ouwendyk on Stormfront re likely to expose persons identifiable on the basis of a prohibited ground of discrimination to hatred or contempt, within the meaning of s. 13 (1) of the Act.
  • Said communications were made repeatedly, in whole or in part by means of a telecommunication undertaking within the legislative authority of Parliament, contrary to s. 13 (1) of the Act.
  • That in spite of the fact that the Northern Alliance is not incorporated, evidence presented is indicative of the Northern Alliance constituting a group of persons acting in concert, in accordance with jurisprudence on this subject.
  • Finally, that Jason Ouwendyk and the Northern Alliance, acting in concert, as well as Mr. Ouwendyk acting individually, communicated or caused to be communicated the impugned messages by means of the Northern Alliance Website within the meaning of s. 13 (1) of the Act.
Regarding remedies:
  • The purpose of a Cease and Desist Order under s. 54 (1) (a) of the Act is to both remediate conduct found to be contrary to s. 13 (1) of the Act and to send a message to others that such conduct is not acceptable. In the present case, the Northern Alliance Website is no longer in existence as it was apparently sold to an unrelated party several years ago. Contrary to Mr. Warman's Statement of Particulars, there is no evidence that the impugned conduct by the Respondents has continued to the present time. Instead it appears to have been discontinued well before the complaints were instituted. To a certain extent, there would not appear to be anything to remediate. However, one has no way of knowing whether the cessation of activity by the Respondents was related to a genuine understanding by the Respondents that their prior conduct was discriminatory and a firm resolve that it would not be repeated at any time in the future. To be on the safe side, therefore, I will make an Order along the lines requested by Mr. Warman under s. 54 (1) (a) of the Act. If the Respondents do not engage in the impugned conduct again in the future, they will have nothing to fear from such an Order. In view of the ruling by the Chairperson of the Tribunal, Mr. J. Grant Sinclair, referred to earlier in this Decision, this Order will not be issued until a final determination by the Courts of the constitutional question in the Lemire case.

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