Date: 20070117
Docket: A-334-06
Citation: 2007 FCA 51
Present: NOËL J.A.
SEXTON
J.A.
PELLETIER
J.A.
BETWEEN:
TOMASZ
WINNICKI
Appellant
and
CANADIAN
HUMAN RIGHTS COMMISSION
Respondent
Heard at Ottawa, Ontario, on January
16, 2007.
Order delivered at Ottawa,
Ontario, on January
17, 2007.
REASONS
FOR ORDER BY: SEXTON
J.A.
CONCURRED
IN BY: NOËL
J.A.
PELLETIER
J.A.
Date: 20070117
Docket: A-334-06
Citation: 2007 FCA 51
Present: NOËL
J.A.
SEXTON
J.A.
PELLETIER
BETWEEN:
TOMASZ WINNICKI
Appellant
and
CANADIAN HUMAN RIGHTS
COMMISSION
Respondent
REASONS FOR ORDER
SEXTON J.A.
[1]
Subsequent
to the decision of the Federal Court whereby the appellant was sentenced to
nine months imprisonment for being in contempt of the injunction order, the
appellant moved for release upon bail pending the appeal to this court.
[2]
By Order
dated September 28, 2006, Malone J.A. ordered the appellant be released on
certain conditions. One condition was "the appellant shall refrain from
contacting or communicating directly or indirectly with Mr. Richard Warman or
the members, staff or counsel of the Commission with the exception of
communicating through his counsel, Mr. James Foord for purposes directly
related to this appeal." A second condition was that the appellant shall
post with the Court cash bail of $5,000.00 or its equivalent payable to the
Receiver General of Canada. The $5,000.00 was posted.
[3]
The
respondent has brought a motion alleging that there was a breach of stay
condition and that therefore the $5,000.00 should be forfeited. Specifically,
the appellant attended a public hearing before the Canadian Human Rights
Tribunal in Toronto in which Mr. Warman was
involved. Mr. Warman was the person who made the initial complaint to the
Canadian Human Rights Commission about the appellant's messages posted on the
internet. The appellant claims to have been interested in the particular
hearing as it raised legal issues which were of interest to him.
[4]
Mr. Warman
complained to the Commission indicating that he was a witness at the hearing
and that he was startled to see the appellant sitting facing him in the hearing
room approximately 10 meters away. Mr. Warman claims to have been intimidated
by the presence of the appellant as well as by death threats which had been
made against him on the internet by persons presently unknown.
[5]
The
Canadian Human Rights Commission takes the position that this constitutes a
breach of the stay order of Malone J.A. in which the appellant was prohibited
from contacting or communicating directly or indirectly with Mr. Warman or
members of the Canadian Human Rights Commission.
[6]
The Commission
argued that the mere presence of the appellant effectively communicated a
threatening message to Mr. Warman thus resulting in a breach of the stay order.
I have concluded, not without some difficulty, that this does result in a
breach. When one considers the hateful messages which had been posted on the
internet by the appellant against Mr. Warman it is understandable that the
appellant's sudden appearance in the same hearing room when there was no need
for him to be there, could constitute a communication to Mr. Warman of a
disturbing nature.
[7]
It is
agreed that the appellant made no statements and caused no disturbance at the
hearing so that one cannot call the communication an extremely serious or
violent one.
[8]
The
Canadian Human Rights Commission asks that the $5,000.00 posted as bail be
forfeited as a result. In my view this is too harsh a penalty as the nature of
the communication does not warrant such a severe penalty. I am of the view that
a forfeiture of $1,000.00 would be more appropriate.
[9]
Therefore
there will be forfeiture in the amount of $1,000.00 of the bail money.
[10]
The
Commission should have its costs of this motion on a solicitor-client basis.
"J.
Edgar Sexton"
"I
agree
Marc Noël J.A."
"I
agree
J.D. Denis Pelletier J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-334-06
APPEAL FROM
A JUDGMENT OF THE FEDERAL COURT DATED JULY 12, 2006, FILE NO. T-1309-05
STYLE OF CAUSE: Tomasz
Winnicki v. Canadian Human Rights Commission
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 16, 2007
REASONS FOR ORDER BY: Sexton J.A.
CONCURRED IN BY: Noël J.A.
Pelletier J.A.
DATED: January
17, 2006
APPEARANCES:
Mr. James Foord
|
FOR THE APPELLANT
|
Ms. Joy
Noonan
Ms. Judith Parisien
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
Foord, Murray
Ottawa, Ontario
|
FOR THE APPELLANT
|
Heenan Blaikie
LLP
Ottawa, Ontario
|
FOR THE RESPONDENT
|